Recent Results

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.

Steven H. Mutz

Steve Mutz’s Post Trial Motion to Dismiss Granted Against Dental Group – No Vicarious Liability

In this case for dental malpractice handled by Dental Malpractice Partner Steve Mutz, 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.

Steven H. Mutz

Steve Mutz 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.

Lawrence S. Wasserman

Lawrence Wasserman Obtains Dismissal of Wrongful Death Claim on Behalf of New York Municipal Defendants

Lawrence S. Wasserman 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.

Lawrence S. Wasserman

Lawrence Wasserman Obtains 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.

Lawrence S. Wasserman

Lawrence Wasserman and Russell Porter Obtain 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.

Steven H. Mutz

Steven Mutz Obtains Directed Verdict for Dental Group for Claimed Negligent Replacement

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 Steven Mutz’s Post-Trial Motion Dismissing Action Against Dental Group

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.

Edward Dondes

Ed Dondes Obtains Defense Verdict for OBGYN Clients

A pregnant woman close to full term came to the emergency room for the third time in a week with complaints of headache. While in the ER she had what was believed to be a seizure. Our doctors were called in and treated her under the presumption that she had eclampsia, a life threatening condition for the mother and baby. Our clients stabilized her and delivered a healthy boy. They admitted her to the ICU and ordered a work-up including head CT scan.
A few hours later she had a hemorrhage and eventually died. It turned out she had hydrocephalus which could have been picked up with an MRI or CT scan and treated.

The ER doctors who saw her on the 3 occasions were found to be negligent for not getting scans. Plaintiff claimed our clients should have done it too. Ed Dondes argued on behalf of our clients that the presumption that she had eclampsia was proper and treatment was stabilization and delivery with the order of a head scan after delivery, which was appropriate given the emergent circumstances.

Edward Dondes

Edward Dondes Obtains Trial Verdict in favor of Hospital and Electrophysiologist

We represented a hospital and an electrophysiologist who was seen by the plaintiff for a consultation on his atrial fibrillation. Our client recommended a procedure known as cardiac ablation after the plaintiff expressed a reluctance to go on lifetime medication for the condition. The plaintiff tolerated the procedure without any complications, however, a 1 month later he experienced a rare but known complication – atrial esophageal fistula and stroke. Mortality rate for this complication is extremely high, however, our client timely responded and had plaintiff admitted to the hospital where he underwent surgery, essentially saving his life. Plaintiff was admitted to the hospital for a month followed by in-patient rehabilitation. He claimed permanent injuries including impotence, fatigue, neurological deficits. His wife claimed loss of consortium.

Plaintiff’s theory was that the proper standard of care required a trial of medication before performing the cardiac ablation and that had he been offered medication he would have tried it prior to electing to undergo the procedure. Our client maintained that plaintiff was offered medication, but chose to have the procedure instead. Unfortunately, our client’s records did not document that plaintiff chose to pass on the medication. Nonetheless, the jury accepted our doctor’s testimony.