Recent Results

Charles Weitman Successfully Vacates Client’s Default

Lighting Strikes Twice in the Same Location

G&S recently represented a client who was sued by a tenant who broke her wrist in a slip and fall due to snow/ice in the driveway despite having been sued five years earlier by the same tenant and same attorney for the same injury, due to the same condition (snow and ice) in the same location!  Our client believing that lighting could not possibly strike twice in the same location thought the papers related to the old action despite our having settled it years before.  Our insured failed to report the claim and five months later the tenant obtained a default judgment against him.

Upon retention, Mr. Weitman with assistance from Associate Mark Walsh, had a steep burden to overcome to establish our insured reasonably ignored the summons and complaint.  Typically, misreading or mishandling a complaint does not constitute a reasonable excuse for default.  Rather, the fault must lie with the court, the plaintiff or a third party for causing the default.

Notwithstanding, after an evidentiary hearing where both the plaintiff and the defendant testified, Mr. Weitman convinced the court that the insured had a reasonable excuse for the default based on his mistaken belief the new summons and complaint related to the old lawsuit.

Mr. Weitman and Mr. Walsh also established a meritorious defense to the accident itself based on certified weather records which established that the second accident occurred during a snowstorm and before the law required the landlord to commence snow removal operations.   Based on Mr. Weitman’s motion, the Court vacated the default.

Now it is the plaintiff that has the steep burden of proof–to overcome the storm in progress doctrine and if she can, prove to a jury that lighting does indeed strike twice in the same location.



Jon Lichtenstein

Jon Lichtenstein Obtains Pre-Discovery Dismissal of Infant’s Claim in the Bronx

Shortly after answering for our client’s Tae Kwon Duo studio, we moved to dismiss the infant’s compalint based on the language in the agreement signed by the infant’s mother that released our client from any claims of negligence that might occur in the future while the infant was on the premises.

Mr. Lichtenstein argued that as a condition of membership, the plaintiff executed a Membership Agreement which contained a well-disclosed and broad based release and waiver of liability of liability including any bodily injury that occurred during the course of instruction or while on the premises even if such injury was caused by the negligence of the insured or its purported negligence.

He argued that the release and waiver of liability was fully enforceable pursuant to New York’s General Obligations Law §5-326 given that plaintiff paid a fee for instruction in the martial art of Tae Kwon Do.  Mr. Lichtenstein argued that only such agreements that provide for recreation (as opposed to instruction) are prohibited from containing releases for the service provider’s negligence.

The Court issued a decision dismissing the case.

Edward Dondes

Ed Dondes Obtains Defense Verdict in Brain Damaged Baby Case for Neonatologist and Pediatricianin

Defense Trial Verdict in Brookyn, Supreme Court

Mr. Dondes represented a neonatologist and a pediatrician. The infant was born at a local hospital at nearly 35 weeks old. Our neonatologist was called to evaluate the infant for admission to the special care nursery. He evaluated the infant and opined that he appeared to be older than his estimated gestational age and did not require admission to the special care nursery. Rather he could go to the regular nursery. The neonatologist never saw the infant again. Instead he was followed by a pediatrician who was not our client who was selected by the delivering Ob/Gyn (this pediatrician settled prior to trial for $2.2 million). The infant remained in the nursery until he was discharged home 2 days later. The admission was unremarkable except for some slight jaundice. Bilirubin was not checked.  

Three days later the child’s mother claimed the infant was yellow and called our client a pediatrician (who she had never spoken with before). The mother alleged she told our client the infant was premature, yellow and not feeding well. The mother claimed our client advised her to stop breast feeding and go to bottle feeds and bring the infant in to see her the following afternoon. Our client claims the mother merely called to introduce herself and inform her she would be using her services as pediatrician. She denied being told by the mother that the infant was yellow or not feeding well.

Early the next morning the mother brought the baby to the hospital. His bilirubin was 37. The infant was transferred to another hospital where he underwent blood exchanges. He suffered kernicterus (brain damage) from elevated bilirubin. He was left with cognitive and physical deficits including an inability to walk, talk or eat. He will require around the clock supervision.

Plaintiff claimed our neonatologist failed to order a bilirubin level and further failed to admit the infant to the special care nursery where he would have received closer supervision. It was also claimed that he failed in his duties as Director of the neonatal unit to implement proper procedures regarding hyperbilirubinemia. She alleged that our client failed to immediately refer the child to the ER.    

Mr. Dondes argued that admission to the special care unit was not necessary given the infant’s weight (over 6 lbs.) and the results of the physical examination. Once admitted, responsibility for the infant rested with the pediatrician assigned by the Ob/Gyn. Mr. Dondes argued that the standard of care at the time did not require mandatory universal bilirubin testing.  He argued that the written policies were in place and were appropriate. With regard to the pediatrician’s alleged negligence, Mr. Dondes argued that our client pediatrician’s version of the phone call was more credible.

 After the close of evidence, the case was submitted to the jury which came back with a defense verdict for both doctors.  The co-defendant hospital settled prior to the resolution of the verdict sheet for $100,000.  



Edward Dondes

Ed Dondes Obtains Trial Verdict on behalf of Surgeon in Bronx County Medical Malpractice Action

Successful trial defense of surgeon alleged to have failed to timely diagnose and treat a post-laparoscopic cholecystectomy bile leak.

Plaintiff claimed that our client failed to order imaging a few days post procedure despite increased drainage and decreased appetite.  That he failed to note abnormal blood test results, abnormal imaging tests and failed to order repeat imaging following stent placement. Plaintiff’s expert testified this allowed the bile to spread causing permanent nerve damage to her internal organs and chronic pain.

Plaintiff’s surgical expert maintained that when our client saw the plaintiff 3 days post-op he failed to appreciate signs of the bile leak and should have ordered imaging and placed a stent.  Mr. Dondes got him to admit that bile leak is a known complication of the procedure which can often resolve without treatment. An admission was also obtained that plaintiff’s expert never had a patient suffer permanent nerve damage from a bile leak.  He also contradicted plaintiff’s prior expert that the migration of bile occurred only after our client’s consult.   He further admitted that the leak would only have been avoided with the placing of a stent, which was important since codefendant testified that even if a scan had detected a leak, he would not have placed a stent at that time. This allowed Mr. Dondes to argue that plaintiff could not establish proximate cause.

On Mr. Dondes’ direct exam our client explained that the drainage was not particularly unusual nor was the plaintiff’s tenderness and decreased appetite unusual given she just had abdominal surgery. Our client adamantly maintained he observed no bile at the time of his initial visit despite the observations of several other physicians on prior exams.

Mr. Dondes put on a surgical expert who opined the assured’s judgment that plaintiff was not suffering a bile leak was reasonable under the circumstances and otherwise acted appropriately and maintained that bile does not cause permanent nerve damage only transient symptoms.

Plaintiff’s treating pain management physician testified that plaintiff suffers from chronic abdominal nerve pain and was not successful controlling her pain with medications, injections and spinal stimulation. He testified she was incapable of working and her condition was permanent. However, on cross-examination he came across as a pill-pusher, with no regard for the plaintiff’s opioid dependence.

Plaintiff testified over the course of three days and was continually exposed as a liar including lying about her lost earnings when in fact she had been paid a full salary. While she claimed not to have a social life her social networking websites reflected otherwise. Post-verdict discussions with jurors revealed they believed her complaints of chronic pain in the absence of any apparent medical cause were related to her addiction to pain medication.

The jury returned a defense verdict on behalf of all defendants. In speaking with jurors post-verdict, they believed that the doctors acted appropriately in all respects and that plaintiff suffered no permanent injuries. They believed that an injustice was being done by her pain management physician and that plaintiff was opioid dependent.



Sanford Gold

Sandy Gold Obtains Trial Verdict on Behalf of Ophthalmologist

Plaintiff underwent surgical removal of a cataract that was impairing his vision when he suffered a complication of the surgery, prolapse of the iris, which is when the iris migrates through the incision that allowed the removal of the cataract.  When the iris could not be fully reset our client removed a portion of the iris by an iridectomy.  The patient brought suit claiming his vision in his left eye had been significantly impaired as a result.  At trial plaintiff’s expert testified that the prolapse could have been resolved without the performance of the iridectomy.

Mr. Gold argued to the jury through an expert ophthalmologist that the prolapse was a result of a retrobulbar hemorrhage and that the hemorrhage prevented a less-invasive method of correcting the prolapse.  Mr. Gold also argued that the hemorrhage was a result of the plaintiff’s combined use of aspirin and an anticoagulant, Plavix.  While our client acknowledged the plaintiff’s use of Plavix, he testified that plaintiff had not disclosed the simultaneous use of aspirin which would have led him to postpone the surgery had he known.

After the conclusion of the trial, the jury rendered a defense verdict.


Arthur Cohen Obtains Defense Verdict in Medical Malpractice Action for Hospital

Plaintiff brought a medical malpractice action against his back surgeon and the hospital where his back surgery was performed claiming he was not a proper candidate for the surgery (plaintiff was morbidly obese) as well as negligence in its performance from misplaced pedicle screws and the failure to recognize post-operative cauda equine syndrome, which left the plaintiff with erectile dysfunction and the inability to feel the passage of urine or feces.

Prior to trial we obtained dismissal of several claims against the hospital. The claims which remained against the hospital for trial was that our x-ray technologist allegedly dropped the patient during transfer from a gurney to an x-ray table nine days post op, which allegedly caused internal bleeding that contributed to the plaintiff’s cauda equine syndrome.

After plaintiff’s expert testified that plaintiff was not a proper surgical candidate, that the surgery was improperly done and that codefendant failed to work up symptoms consistent with cauda equine syndrome, the codefendant surgeon testified he had done the procedure properly and that plaintiff never developed cauda equine syndrome post-discharge, but rather plaintiff had symptoms consistent with his deteriorating underlying spinal disease. The surgeon also put on experts in surgery, neuro-monitoring and urology.

Our surgery expert described how our x-ray technologists performed a proper guided transfer in the x-ray room and testified that the plaintiff suffered no injury at their hands. Our two x-ray techs had no recollection of the patient, but ably explained how they typically do guided transfers and denied ever dropping a patient.

Plaintiff subpoenaed two nurses to read their two notes into the chart referring to the alleged drop, but neither had any recollection of the patient.

On cross-examination Arthur Cohen obtained an admission from the plaintiff that by “drop” he really meant that he felt his back come into contact with the x-ray table.

After closing arguments plaintiff asked the jury for $2.1. The jury unanimously found no deviations from the accepted standards of care for either defendant.


Wayne E. Cousin

Wayne Cousin Obtains Defense Verdict in Favor of OBGYN

Baby was born without brain activity.

Wayne Cousin defended an OBGYN at trial who was alleged to have failed to timely order proper testing of a pregnant plaintiff with the resultant failure to diagnose vasa previa, a condition in which a baby’s blood vessels run near the internal opening of the uterus and can rupture during birth. 

The plaintiff’s pregnancy was without incident, with the exception of a 20 week ultrasound that showed a low-lying placenta, which was shown to have resolved in a subsequent ultrasound. The pregnancy progressed to its 34th week. Plaintiff developed bleeding and was brought to the hospital.  Upon arriving at the hospital, a code pink was called and a c-section was performed.  The plaintiff was diagnosed with vasa previa at the time of delivery.  The infant was delivered with no brain activity, and the body was kept alive for several hours on artificial respiration.

Wayne argued that our client ordered the proper prenatal testing at the appropriate times, and that the patient was referred to the hospital’s highly regarded maternal-fetal medicine department for that testing.  He further argued our client reasonably relied on the findings made by the MFM specialists.  He further argued that once our client was notified of the resolution of the low-lying placenta, no further testing regarding that condition was warranted, and our doctor did not deviate from good and accepted practice by not ordering further testing for low-lying placenta. 

Result: After the jury deliberated for 45 minutes, they returned a verdict in favor of the doctor.


Jon Lichtenstein

Jon D. Lichtenstein Obtains Summary Judgment in Labor Law 240(1) Case

Major victory for G&S Client CBRE, Inc.

Jon D. Lichtenstein recently obtained summary judgment dismissing a Labor Law case against our client CBRE, Inc. leaving several defendants to try the case.

This Labor Law case arose when a 40 lb. cable tray fell from a distance of 2-3’ onto the head of the 25 year old plaintiff. The plaintiff’s coworker was working with the cable tray on a ladder when the tray fell. The plaintiff was employed by a contractor USIS Electric, Inc. a subcontractor of Tishman Interiors, who was retained by the tenant AECOM Technology Corporation, to install audio visual wiring. Also in the case were the owners of the building and a company closely related to plaintiff’s employer.

Plaintiff underwent treatment for his head, neck, mid-back and low back and ultimately underwent lumbar disc de-compression surgery and lumbar fusion and he has received a recommendation for cervical fusion. He also alleged a traumatic brain injury and permanent disability.

We moved for summary judgment on the grounds that CBRE was not a statutory agent subject to the Labor Law and on the grounds that the tray that hit the plaintiff was not a falling object as that term is defined under the Labor Law.

Although the judge found that the cable tray was a falling object since it fell off of the ladder and did not drop from the hands of plaintiff’s coworker, he dismissed CBRE finding it was not a statutory agent under the Labor Law, and agreed there was no evidence the accident arose from CBRE’s negligence.

We argued that even though CBRE was the project manager and had many responsibilities including overseeing and administering the project, it had no power to control, supervise or direct plaintiff’s work. That CBRE’s sole employee associated with the job was only at the worksite weekly. Our witness expressly denied controlling, supervising or directing Mr. Tropea’s work and she expressly denied CBRE was responsible for site safety. We argued that CBRE could not have been responsible for safety without eyes, ears or a voice on site on a daily basis.

Plaintiff and certain codefendants argued that CBRE was a statutory agent since its contract required it to “oversee” the trades. We argued however, that mere “oversight” is insufficient since what is required is supervision and control.

We argued that the decision plaintiff was relying on Kenny v Fuller Co., 87 AD2d 183 (2d Dept 1982), was decided 23 years prior to the case we were primarily relying on Walls v Turner Constr. Co., 4 N.Y.3d 861, 798 N.Y.S.2d 351 (2005) and we argued that the Kenny case had not been cited by the Court of Appeals or the Appellate Division since the Walls case.


Patrick B. Mevs

Patrick Mevs 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.

Jon Lichtenstein

Second Department Affirms Dismissal of Ice Skating Rink Case – Water Does not Make Ice More Slippery

The plaintiff, an adult male, tried ice skating for the first time on a Spring day at our client’s ice rink. He stepped out on the ice and while still holding on to the boards took a second step and fell backwards onto his posterior breaking his ankle which required surgery. He alleged that his skate slipped because he had stepped onto a wet spot on the ice and also that he was given the wrong size skates.

The claim that wet ice caused someone to fall is a claim we have seen over the years. This time we decided to hire an expert to test the claim. Our expert did coefficient testing on wet ice and dry ice before and after cleaning with a Zamboni and scientifically determined there was no significant difference between the slipperiness of wet and dry ice.

Our expert who also was a bio-mechanical engineer also determined by the plaintiff’s testimony that the cause of the fall was not the ice, but the fact that the plaintiff had taken a step while still holding onto the boards which would have caused his weight to trail behind his skates leading to to his fall on his posterior.

Our expert also noted that when one is stepping as opposed to skating with ice skates the blades are not engaged with the ice in a stable manner and it is extremely difficult to keep one’s balance even for an experienced skater, let alone a first timer. Our expert also observed that plaintiff spent no time attempting to acclimate to the ice, but immediately stepped away from the boards. These factors explained the accident without reference to an dangerous condition.

At plaintiff’s deposition we got him to admit that he never felt any change in the consistency of the ice prior to falling and thus argued his claim that wetness caused his fall was pure speculation. In fact, we asked him if he knew for a fact that wet ice was more slippery than dry ice and he said that he thought so, but did not know it for a fact.

With regard to the claim that he was given the wrong size skates, we argued that he could not say at his deposition whether or not the accident would have occurred with smaller skates and highlighted his testimony that the skates were fine to walk on off the ice.

Despite plaintiff submitting his own expert affidavit to the court which concluded that our client was negligent for allowing the ice to be wet and for providing the wrong size skates, the trial court found plaintiff’s expert’s affidavit to be without foundation and granted our motion for summary judgment dismissing the complaint for his failure to establish any defect which proximately caused the accident. The Appellate Division heard argument and agreed.

A claim of wet ice no longer sets forth a prima facie claim of negligence in New York.