Recent Results

G&S Obtains Dismissal of Claim Based on Defective Service of Process

This was a claim for medical malpractice for the alleged improper performance of a cosmetic breast augmentation procedure (breast lift). We moved to dismiss the complaint based on plaintiff’s counsel failure to properly effectuate service on our client physician. Although the trial court refused to grant our motion and granted the plaintiff additional time to serve, partner Patrick Mevs, appealed the denial of the motion to the Appellate Division. When plaintiff failed to effectuate proper service a second time, he again moved to dismiss and again the trial court allowed plaintiff more time. Undeterred, Mr. Mevs perfected his appeal of both motions and after oral argument, the Court rendered a decision effectively dismissing the plaintiff’s complaint for failure to properly effectuate service. Since the statute of limitations had expired, this decision effectively ended the litigation in favor of our client.

Post Trial Motion to Dismiss Granted Against Dental Group – No Vicarious Liability

In this case for dental malpractice, it was alleged that our client (dental group) was vicariously liable for improper bridge work performed by a treating dentist. Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

After a trial, the jury rendered a verdict for which our client was found to be 50% liable.

We made a post-trial motion, which the judge granted vacating the verdict, on the basis that plaintiff had failed to establish that dental group was vicariously responsible for the acts or omissions of the treating dentist, either as an employee or under an agency theory. Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group. Therefore, the judge wholly dismissed the action against our client.

G&S Obtains Dismissal of Med-Mal Wrongful Death Action for Lack of Jurisdiction

Plaintiff brought wrongful death action alleging medical malpractice of our client, an internist, based on his alleged failure to detect and treat the plaintiff’s brain and lung cancer.

We moved based on our defense our client was never properly served with process at her actual residence or place of business. Initial service was made at a hospital where she had formerly worked and later served at a condominium she owned, but had always leased to a tenant. Plaintiff never effectively refuted our claim of lack of service, and, in fact, cross-moved for our client’s proper address for re-service. The issue of service was of critical importance because the statute of limitations had expired.

With respect to the statute of limitations, plaintiff contended that our client was “united in interest” with other co-defendants and thus the Statute of Limitations did not expire against her. We contended that in order to prove defendants were “united in interest,” plaintiff had to demonstrate reciprocal vicarious liability. We argued that while our client’s medical group was vicariously liable for her, she, as an employee, was not vicariously liable for the torts of her employer and therefore there was no reciprocal vicarious liability.

The judge agreed and denied plaintiff’s request to extend the statute of limitations and granted our motion to dismiss based upon lack of personal jurisdiction. The Court noted that plaintiff made only one attempt to serve our client did not set forth any additional efforts made to obtain the correct address. As such, the judge noted that plaintiff did not demonstrate good cause for additional time under CPLR 306-b. The Statute of Limitations had already expired so this was, in effect, a permanent dismissal of the action.

G&S Obtains Dismissal of Skating Rink Case Based on Assumption of the Risk

MAN SPINNING WOMAN ON ICE AGAINST HER WILL WAS NOT RECKLESS CONDUCT SO AS TO FALL OUTSIDE ASSUMPTION OF RISK DOCTRINE

Note: I think Recent Results needs a subtitle area

subtitle would be: MAN SPINNING WOMAN ON ICE AGAINST HER WILL WAS NOT RECKLESS CONDUCT SO AS TO FALL OUTSIDE ASSUMPTION OF RISK DOCTRINE

Plaintiff and her friend were ice skating when she observed a man skating in a dangerous manner skating the wrong direction and pushing other people on the rink. They continued to skate when this individual stopped the conduct. When after a half hour on the ice they saw this individual swinging a woman around him on the ice against her will they decided to leave the ice. As plaintiff was skating by the couple their hands released sending the male “flying” into her knocking her down and causing her to break her wrist.

We argued that that being knocked to the ice by another skater is a risk that ice skaters assume when they agree to participate in the sport of ice skating. Plaintiff was an experienced skater and continued to skate despite being aware the individual who knocked her down had skated inappropriately in a manner she considered dangerous. We argued that the exception to this doctrine, where the person is injured when struck by someone skating “recklessly” did not apply, because the conduct describe was not reckless and occurred too suddenly for the rink to have been able to prevent. We reviewed for the court historic examples of reckless conduct and argued that a man and woman holding hands and skating in circles did not approach the standard for recklessness. We also argued that the accident occurred so suddenly and precipitously that it could not have been prevented or anticipated by the rink.

We also argued that to the extent the plaintiff claims her accident was caused by “scratches” in the ice, such scratches were ordinary risks she assumed and neither plaintiff nor her friend could articulate how the scratches contributed to the accident.

We also argued that the landlord should be dismissed since it had no obligation to maintain the surface of the ice nor did it play a role with regard to rink security or regulating the conduct of the skaters.

The decision by Judge Genine D. Edwards dismissed the claims against all defendants on the grounds that plaintiff assumed the risk of being knocked down and on the alternative grounds that the event took place too quickly to hold defendants liable.

G&S Obtains Dismissal of Wrongful Death Claim on Behalf of New York Municipal Defendants

G&S OBTAINS DISMISSAL OF WRONGFUL DEATH CLAIM ON BEHALF OF NEW YORK MUNICIPAL DEFENDANTS
Lawrence S. Wasserman and Nicholas J. Ajello recently obtained dismissal of a wrongful death claim on behalf of The City of New York, New York City Police Department, New York City Fire Department and the City of New York Department of Health and Mental Hygiene in Supreme Court, Queens County.

The case, Lois M. Rosenblatt v. The City of New York, et. al. (Index No. 5798/2013), involved plaintiff’s-decedent, a then 96-year old female who was under the care of a private home health aide. When the decedent started choking on food fed to her by the home health aide, the aide called an ambulance and was provided instructions on what to do, but by the time the ambulance arrived, the decedent had become anoxic and fell into a persistence vegetative state before ultimately passing away.

Plaintiff alleged the City failed to give the home health aide appropriate instructions, failed to properly dispatch an ambulance and erroneously characterized the 911 call as DOA as well as other claims of negligence and medical malpractice.

We moved for summary judgment arguing the City was engaged in a governmental function when it provided 911 referral and emergency medical service responses, and thus, could not be held liable for its emergency actions unless it owed the decedent a special duty. We argued that no special duty existed since the City did not voluntarily assume a special relationship with the plaintiff’s decedent beyond the duty that is owed to the public generally.

The Supreme Court, Queens County granted our motion for summary judgment dismissing all claims when it agreed with our position that the City was engaged in a governmental function when it provided emergency medical services to the plaintiff’s-decedent and agreed that no special duty of care existed between the City and plaintiff’s-decedent based on the instructions provided to the aide.

G&S Obtain Trial Verdict in Fall Down Stairs Allegedly Due to Improper Handrail

Plaintiff was visiting our client when she fell down an interior stairway. Plaintiff contended that the stairway that had been replaced five years earlier by an unlicensed contractor, caused her accident because the contractor negligently failed to comply with provisions of the code that require handrails to have at least 1 ½ inches of finger space. The plaintiff asserted that because part of the molding ran up against the handrail, there was an absence of space to grab for several inches. The plaintiff maintained that as a result, she was caused to fall. Plaintiff put on the stand the expert engineer Nicholas Belizzi, PE. We argued that the stairs were safe and that there had been no problems with the stairs or handrail in the 5 years since being installed. We also contended that the plaintiff had regularly visited the premises, and had been on the stairs many times and argued that the condition of handrail would not have caused a fall. Upon submission to the jury, it returned a defense verdict on behalf of our client.

Gordon and Silber Obtains Rare Forum Non Conveniens Dismissal in New Jersey Asbestos Case

Lawrence S. Wasserman and Russell L. Porter recently obtained a dismissal of a cosmetic-talc related asbestos case in the Superior Court of New Jersey, Middlesex County. We are unaware of any other similar motions which have obtained a similar dismissal in the venue.

The case, Bell v. American International Industries, et. al., Docket Number: MID-L-6527-15AS, involved claims made by a lifelong resident of North Carolina that she was caused to develop mesothelioma after being exposed to asbestos contained in our client’s cosmetic talc product. The plaintiff claimed she used this product during her longtime employment as a hairdresser in North Carolina.

During the plaintiff’s deposition, we were able to ascertain the plaintiff had a long history of employment in several North Carolina textile factories which were known sources of asbestos-exposure and related litigation. Further investigation revealed that the plaintiff had filed a workers’ compensation claim asserting that her mesothelioma was the result of her work at these factories. We discovered that this claim had been voluntarily dismissed by the plaintiff so she could pursue her claims against our client in a New Jersey court.

We immediately moved for dismissal based upon inter alia the doctrine of forum non conveniens asserting that the case was more properly venued in North Carolina and that the plaintiff was engaging in forum shopping. After three separate oral arguments, the Court agreed finding that the plaintiff’s self-alleged exposure to asbestos at various work places in North Carolina, coupled with the cases’ tenuous connections to New Jersey, warranted dismissal. As noted above, we are unaware of any other asbestos-related litigation in New Jersey were a similar result has been obtained.

Anyone who wishes to discuss the above-referenced decision or Gordon & Silber’s aggressive and novel approaches to defense of asbestos-related claims can contact Lawrence S. Wasserman or Russell L. Porter at (212) 834-0600.

G & S Obtains Directed Verdict for Dental Group for Claimed Negligent Replacement

G & S OBTAINS DIRECTED VERDICT FOR DENTAL GROUP FOR CLAIMED NEGLIGENT REPLACEMENT OF LOWER RIGHT BRIDGE RESULTING IN BONE LOSS, UNNECESSARY TOOTH PREPARATION, RESTORATION AND IMPLANT COSTS, PAIN AND SUFFERING

In this case for dental malpractice our client was alleged to have negligently replaced a lower right bridge with an ill-fitting lower right bridge, with unnecessary preparation of the tooth, restoration and implant costs, pain and suffering. Plaintiff claimed that the co-defendant dentists implemented a negligent treatment plan and failed to obtain his informed consent. Plaintiff alleged that our client, the dental group, was vicariously liable for the treatment and for allowing unlicensed treatment by a former dentist and technician.

We argued that the treating dentists were independent contractors and we disputed that there was any unlicensed dental treatment. We contended that the lower right bridge required expansion due to the loss of an abutment tooth and that the informed consent was established by signed consent forms. Finally plaintiff’s expert conceded consent was “ideal” on cross-examination. Finally, we stressed that plaintiff abandoned his treatment and negligently wore a temporary bridge made of acrylic for several years.

Result: The judge granted our motion for a directed verdict at the end of the plaintiff’s and defendants’ cases.

Judge Grants G&S’ Post-Trial Motion Dismissing Action Against Dental Group

JUDGE GRANTS G&S’ POST-TRIAL MOTION DISMISSING ACTION AGAINST DENTAL GROUP BASED UPON PLAINTIFF’S FAILURE TO PROVE TREATING DENTIST WAS EMPLOYEE AND NOT AN INDEPENDENT CONTRACTOR

In this case for dental malpractice, it was alleged that our client (dental group) was vicariously liable for improper bridge work performed by a treating dentist. Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

The jury rendered a verdict for which our client was found to be 50% liable.

In deciding our post-trial motion, the judge determined that there was no evidence of the dental group’s vicarious responsibility for the acts or omissions of the treating dentist, either as an employee or under an agency theory. Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group. Therefore, the judge wholly dismissed the action against our client.

G & S Gets Dismissal of Construction Labor Law Claims in Foot Crush Case

Plaintiff was performing demolition work on the roof of a Manhattan skyscraper when the 300 lb. cart of debris he was pulling up a ramp tipped over and crushed his foot claiming a permanent disability. The plaintiff brought Labor Law claims pursuant to 240(1) and four separate 241(6) claims based on Industrial Code sections 23-1.7(f), 23-1.11(a) and 23-1.22(b) and (c)(1) against the building owner, the owner’s managing agent and the construction manager.

We moved for summary judgment on behalf of the managing agent on the grounds that the Labor Law did not apply to our client since it was not hired to be the general contractor or construction manager and it did not represent the owner with respect to the construction, but merely was charged with overall building management. We argued that our agreement had a specific option for construction management which the owner had not exercised. We argued the fact that our client monitored the construction was an insufficient basis to find 240(1) liability.

We further argued that even if the Labor Law did apply, the Labor Law claims failed. With respect to the 240(1) claim we argued that the plaintiff did not fall from a height and the injuries were not the result of an elevation related risk. We argued that the cart falling onto plaintiff was not a risk related to gravity because the cart and plaintiff were on the same level albeit a ramp and that indeed, plaintiff was above the cart on the ramp when it fell. We argued that the cart was not being hoisted up the ramp and thus did not need to be secured.

With regard to the 241(6) claim based on Industrial Code 23-1.7(f), we argued it did not apply since the ramp in question was not providing access between two different work levels but was rather intended to move material up onto a gantry that was only 4-12″ above the roof surface.

With regard to the 241(6) claim based on Industrial Code 23-1.11(a) which requires lumber to be sound and not contain defects, we argued that plaintiff failed to describe any aspect of the ramp which was not only defective but could have caused the cart to tip over.

With regard to the 241(6) claim based on Industrial Code 3-1.22(b) we argued that the provision did not apply because the cart was neither a motor truck, a wheelbarrow, power buggy or hand cart and in any event the requirement that the ramp be supported so as not to have excessive deflection or spring did not apply because there was a support under the ramp. The Court dismissed this claim despite plaintiff’s claim that the ramp bounced up and down causing the cart to fall on him. The Court did not appear to find this claim credible merely noting the existence of the support under the ramp. The Court was apparently persuaded by our argument that the claim the ramp bounced was contrary to physics. While the 500 lbs. of weight between the cart and the plaintiff certainly would have deflected the ramp onto the 2 x 4″ support, we challenged plaintiff to explain what force would have caused it to rise up off the support completing the bounce. Plaintiff ignored our challenge to his own peril.

With regard to the 241(6) claim based on Industrial Code 23-1.22c)(1) we argued that the ramp in question was not a platform to unload a wheelbarrow and thus it did not apply to the case. The Court agreed with all of our contentions.