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The Court of Appeals Will Review the Second Department’s Expansion of Liability of Commercial Owners and Managing Agents for the Negligence of their Independent Contractors

In Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854 (2d Dep’t August 24, 2016), the Second Department greatly expanded liability of commercial property owners and managing agents for the negligence of their independent contractors. It was not clear from the one page decision whether the Court was aware of the far reaching consequences of what it had done. Recently, the Second Department granted a motion for leave to appeal. The matter is now on its way to the Court of Appeals. In Pesante, the plaintiff claimed he was walking with a friend in a parking lot owned by the Vertical Industrial Development Corp. (“Vertical”) and managed by Rentar Development Corp. (“Rentar”), when she was struck by a remote-controlled toy car. The parking lot was patrolled by the employees of the owner’s independent security contractor. There was testimony that immediately prior to the accident, the security guard was…Read More

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Updating Tort Law For Advances in Prosthetics (Cyborgs)

This article is reprinted with permission by the New York Law Journal from an article that was published on August 28, 2015. In 2009, the CBS news program 60 Minutes profiled the former Director of Veterans Affairs Fred Downs, who lost his left arm in Vietnam. He had relied upon a hook style prosthetic for four decades, when he strapped on a new prototype robotic arm and picked up a bottle of soda and raised it to his lips. In a subsequent episode, when recalling that moment, Downs became emotional, telling reporter Scott Pelley “the feeling is hard to describe, for the first time in 40 years, my left hand did this [grasping]…it felt so good to move my arm again”. Pelley noted Downs had said “moved my arm again”. Pelley asked if it actually felt like his arm. Downs emphatically responded “it did, it felt like my arm, it…Read More

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Christopher Adam Blackman, 1978 – 2015

Christopher Adam Blackman, one of Gordon & Silber, P.C.’s most respected associates, lost his long and brave fight with cancer on August 1, 2015. Christopher, age 37, was as a veteran five year member of the G&S general liability team. He was known as a fine lawyer, who notwithstanding a gentle soul, zealously represented his clients in a professional manner while maintaining the utmost integrity and perseverance. He was hard working, friendly, humble and generally a great guy to work with. We will not ever forget his mischievous, smiling eyes and hearty laughter. One of the great pleasures of working with Chris was finding the great depth of his personality behind his professional exterior. His incredibly dry wit and sense of humor. His collegiate football career at Hamilton College. His prowess on the golf course, the ski slopes, running the marathon, his sailing. But nothing told more of Chris, the…Read More

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The Legal Rights of Cyborgs – Should Damage to a Prosthetic Be Considered Property Damage or Personal Injury?

This blog post is a reprint, with permission, of an article published in the New York Law Journal on March 25, 2015. From time immemorial, our common law has provided one set of remedies for damage to one’s property and another set for damage to one’s person. While the latter allows the full gamut of recovery including pain and suffering, lost earnings, medical expenses, lost enjoyment of life and loss of consortium, the former merely allows recovery of the property’s repair or replacement value. One cannot even recover for the sentimental value of property[i]. Yet today, many of us depend on our devices to perform the normal tasks of living, such as walking, talking, hearing and seeing. Damage to these prosthetics can leave a person without the ability to work or perform activities of daily living until repaired. As demonstrated in this article, there is arguably a new suspect class…Read More

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Michael E. Gallay Joins Gordon & Silber as a Partner

G&S is pleased to announce that Michael E. Gallay has joined the firm as a partner. Michael is a graduate of Colgate University and Boston University School of Law. Following law school he was a trial attorney with the Brooklyn District Attorney’s office and subsequently tried cases for the New York City Law Department. He then focused on medical malpractice defense after joining Martin, Clearwater and Bell in 2000, where he became a partner in 2004.

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High School Did Not Violate Constitution by Suspending Student for Texting Violent Feelings to Friend

In Bradford v. Norwich City School District, 3:12-cv-1888, the defendant school suspended a student for 5 days, for sending texts to a friend while in their respective living rooms expressed the desire to harm (slapping, kneeing, kicking) a female student. The Northern District Judge, Glenn Suddaby held that the school neither violated the student’s First Amendment rights nor his Parents Fourteenth Amendment rights to raise their child as they saw fit. The female discovered the texts on the friend’s phone while in school causing her to become emotional which lead to a teacher being shown the texts. Judge Suddaby held that the suspension was constitutional as a reasonable act to protect the school had the student harmed the female student. The decision notes that the rights of students are “not coextensive with the rights of adults in other settings.” Schools have the right to prohibit expression that will “materially and…Read More

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G&S Obtains Defense Verdict in Tough Eye Case Involving Multiple Surgeries

The Plaintiff had undergone cataract surgery performed by our client. One day after the surgery, as well as a week after surgery, plaintiff was evaluated by our client with very poor visual acuity (ability to only “count fingers” at 2 feet). On the third post-operative visit, our client determined that the intra-ocular lens (the artificial lens that he inserted as a replacement for the human lens which has developed a cataract) had dislocated. As a result, the plaintiff had to undergo a series of surgeries to correct this situation, which allegedly caused him to have serious problems with depth perception, glare and blurry vision. The claim of malpractice essentially was that the intra-ocular lens had dislocated right after the surgery, which was demonstrated by the extremely poor visual acuity one the first and second visits and that our client had failed to diagnose it in a timely fashion. The plaintiff’s…Read More

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G&S Obtains Defense Verdict in Death Claim

Gordon & Silber represented an internist/rheumatologist in a case of medical malpractice. Plaintiff’s decedent was his long-time patient. Although he was healthy, he had some issues including reflux disease, obesity, hypertension and high cholesterol putting him at risk for heart disease. He presented in February 2008 with chest pain. Our client sent him to a cardiologist for a work-up. His stress test and echocardiogram showed no signs of coronary artery disease. He had no more problems until May 2010 when he again presented to our client with complaints of chest pain. Our client did not believe the pain was cardiac in nature. Rather, he believed it might be an esophageal spasm which can cause chest pain. He recommended an anti-spasmotic medication and advised him to return if he wasn’t getting better. Instead of returning he went to a gastro-intestinal doctor (“GI”) in August 2010. The GI diagnosed him with erosive…Read More

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Kathryn M. Walsh 1977-2014

Gordon & Silber, P.C. recently lost one of our most dedicated and admired associates. Kathryn M. Walsh, a member of the G&S medical malpractice team, lost her long and brave fight with cancer on September 24, 2014. Katy, as she was known to friends and associates, graced these halls with her incredible intelligence, hard work, kindness, loyalty, beauty and dogged determination since 2009. Katy was a literal tower of strength and humanity. Her office was always open to those who needed a friendly ear and she always made time for people regardless of the stresses and demands of her profession. She developed many close relationships not only with her fellow attorneys, but with the office and lobby staff whom she brought back coffee for and the night cleaners who she took time to get to know while working after hours. She was incredibly hard working, putting in long hours including…Read More

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G&S Obtains Summary Judgment Dismissing Various Toxic Exposure Claims as Time Barred

G&S recently obtained summary judgment dismissing various claims as time barred on behalf of several World Trade Center defendants. The plaintiff claimed he suffered various injuries due to his work cleaning the interior of buildings after the World Trade Center attacks. We argued that all of plaintiff’s 14 separate claims of injury were subject to the three year statute of limitation [CPLR 214-c(2)] which runs from the date of discovery of the injury or from the date the plaintiff should have discovered the injury, whichever is earlier. Plaintiff claimed that as a result of his post 9/11 work he developed a number of symptoms including coughing, chest pressure, headaches, throat irritation, nasal congestion, heartburn, shortness of breath, trouble sleeping, and psychological problems, among others. We argued that all of his injures were linked to at least one of these symptoms prior to December 17, 2004, three years prior to the…Read More

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