Recent Results

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.

Jon Lichtenstein

Jon Lichtenstein Obtains 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.

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.

Jon Lichtenstein

Jon Lichtenstein and Charles Weitman Obtain Summary Judgement For Five Distinct Defendants In A Single Motion

The plaintiff in this action worked for a coffee distribution company when with knowledge of a broken light, exited from work through the loading dock and tripped over the bottom of a concrete ramp that had been poured to elevate trucks to the surface of the dock, fracturing his patella which required surgery. He contended he fell due to a nonworking light and an improperly designed ramp which failed have handrails and yellow visibility paint.

Although he received Workers’ Compensation benefits, he sued his employer and his employer’s parent company as well as a defunct affiliated company, as well as his employer’s landlord and a company affiliated with the landlord that shared the building. G&S took over the defense of all five defendants. Only the contractor that built the ramp was not being defended by G&S.

G&S moved for summary judgment on behalf of plaintiff’s employer based on the exclusivity provisions of the WCL as well as on behalf of its parent based on affidavits and testimony establishing that the parent controlled the front and back office operations of the employer, its wholly owned subsidiary. G&S moved on behalf of the parents affiliated company based on evidence that it was no longer in existence on the date of the plaintiff’s accident and never had any relationship to the property. G&S moved on behalf of the landlord on the grounds that it was merely an out of possession landlord with no contractual duty of repair other than with respect to structural issues and no common law duty other than with respect to structural building code violations. A main point of contention between our expert architect and the plaintiff expert engineer was whether the ramp was structural and whether it violated the building code. We also moved on behalf of the defendant affiliated with the landlord on the grounds that it had no ownership interest or duty of care with respect to the premises. Finally, we also argued that the plaintiff’s claims should be dismissed since the cause of his accident was his admitted failure to look down at the ramp after descending the stairs and as a manager in charge of the safety, including the subject light and ramp, he knew of the conditions in the loading dock, but nevertheless proceeded anyway, assuming the risk of his injury.

In an extraordinary 20 page decision Judge Jeffrey S. Brown, of the Nassau County Supreme Court dismissed all five insured defendants with a clean sweep of every argument, leaving our co-defendant left in the case by itself. The court even agreed that plaintiff could not establish the accident was proximately caused by the alleged defective ramp, lighting and absence of handrails because of his testimony that he knew the light was out and knew the ramp was there, was not looking down and had an alternative exit out of the building.

The decision threaded the needle in obtaining a dismissal for the parent corporation on the basis of the WC bar without making the statement or concluding that the parent and subsidiary were alter egos, thereby preserving the corporate distinction between the entities. We were also successful with establishing with expert testimony that the concrete poured ramp was not structural and thus not something that the out of possession landlord had notice of, and extracted the entities not affiliated with the premises with appropriate affidavits.

Steven H. Mutz

Steven Mutz Obtains Defense Verdict For Dental Group Regarding Placing Dental Implants in The Sinus, Resulting in Sinus Pain, Swelling and Infection

Type of Case: Dental Malpractice. Alleged negligent placement of dental implants into her sinuses resulting in sinus pain, swelling and infection.
Venue: New York Supreme Court, New York County

Background Facts: In this dental malpractice action, plaintiff claimed lack of informed consent, negligent placement of dental implants and failure to take a preoperative CT scan and postoperative x-rays. Plaintiff claimed the implants caused her pain, swelling, infection and anguish. She alleged the dentist failed to explain the procedure’s risks and benefits and did not discuss the alternatives and thus failed to obtain her informed consent. She also asserted she could not read the Consent form without her glasses.

Special Problems: CT scans confirmed two implants had passed the bony floor of the sinus. There was a “he said/she said” battle on informed consent.

Our Strategy: We argued that a preoperative CT scan was unnecessary since a panorex x-ray accurately demonstrated positioning of the bone level for placement of the dental implants. We further contended that the implants were properly placed since stabilization was achieved and they had not pierced the Schneiderian membrane. Moreover, we asserted that implants protruding into the sinus was an accepted complication of the procedure. We negated plaintiff’s claim of the need for glasses to read the consent form by subpoenaing her eye doctor’s records showing 20/20 vision. Finally, we argued that postoperative x-rays were taken during the next visit, and it would have made no difference if they were taken any earlier, since plaintiff declined removal.

David M. Dince

David Dince Obtains Dismissal of Claims Against Court Appointed Psychiatrist – 2016

Plaintiff sued our assured psychiatrist and other defendants asserting civils rights violations in connection with her role in a Family Court neglect proceeding which culminated in his loss of parental custody. Our client was appointed by the court to perform a forensic psychiatric evaluation of the plaintiff. Plaintiff asserted claims against our client for violating his civil rights pursuant to 42 USC 1983 of the 14th Amendment as well as claims for defamation.

Plaintiff alleged that the psychiatric report submitted by our client submitted to the Family Court was wrongful and defamatory and violated his civil rights since no psychiatrist could perform an psychiatric examination and make a valid diagnosis in the short period of time our assured spent with him. We moved to dismiss on the grounds that our client was entitled to judicial immunity for her work performed in furtherance of the Family Court appointment as a psychiatric evaluator of the plaintiff. We also argued that the report in no way deprived the plaintiff of any rights guaranteed by the 14th Amendment including the right to life, liberty or property. She simply submitted a thorough report with recommendations as was directed by the court and the Department of Social Services. We also argued that the pleading requirements of defamation were not met.

While the motions were pending, the plaintiff kept communicating directly with the defendants bypassing their attorneys. Upon application, the court held a contempt hearing and issued an order directing plaintiff to cease all improper communications with the defendants. When the plaintiff failed to cease these communications, upon application, the Court held a further contempt hearing whereupon it used its discretionary power to dismiss the plaintiff’s case with prejudice.

Andrew B. Kaufman

Andrew Kaufman Obtains Summary Judgement Premised On The Assumption Of Risk Doctrine For Long Island Health Club

The plaintiff in this action alleged that she fell backwards and fractured both of her wrists while performing plyometric box jumping exercises at a Life Clubs, Inc., a health club facility in Long Island. This exercise involves repeatedly jumping onto and off of a raised platform. The plaintiff claimed that the rubber tiled flooring in the area where she was doing this exercise was uneven and caused the plyometric box to wobble when she landed on it. She alleged that this wobbling caused her to lose her balance and fall backwards.

In moving for summary judgment, we submitted substantial evidence that the plaintiff assumed the risk of sustaining her injuries. This included the plaintiff’s deposition testimony that she exercised at this gym several times per week, and had done plyometric jumping in the exact area where she fell on several prior occasions, both with and without a personal trainer. She also testified that she felt the box wobble on prior occasions and immediately before her fall. She did not use a spotter or any protective mats. The Supreme Court, Nassau County held that this evidence established that the plaintiff assumed the risk of sustaining her injuries.

We also demonstrated that the rubber-tiled floor where she fell was reasonably safe for the performance of plyometric exercises by submitting an expert affidavit of a licensed professional engineer. Although the plaintiff proffered an affidavit of a sports and recreation expert, we convinced the court that the expert’s opinions were speculative and conclusory.

Dawn A. Adelson

Dawn Adelson’s Cross-Examination of Plaintiff’s Expert Leads to Rare Discontinuance in Middle of Trial, in a Claim Against an Eye Surgeon

Plaintiff, a 72 year old physician, underwent left-eye cataract surgery performed by our client. Plaintiff’s post-operative course was complicated by intermittent complaints of pain to the eye, blurry vision, inflammation and clouding of the posterior capsule. Our client treated plaintiff with a course of steroids and performed a YAG laser capsulotomy for the opacification seven weeks post-surgery. One and a half years after the cataract surgery plaintiff suffered a retinal detachment and permanent loss of vision. Plaintiff brought suit alleging the detachment was due to our client’s failure to diagnose and remove retained lens material from the eye. Plaintiff pointed to the post-operative inflammation as evidence of same and argued that the laser capsulotomy should not have been performed in the immediate post-operative period while plaintiff was still on steroids. Plaintiff argued this triggers an uncontrolled persistent inflammation, resulting in retinal detachment and permanent vision loss.

At trial, Ms. Adelson discredited the plaintiff’s ophthalmology expert on cross-examination by demonstrating he was not only less credentialed and experienced than our own expert, but was less credentialed and experienced than our client. Ms. Adelson battered plaintiff’s expert and used him to demonstrate that the science and medicine supported that plaintiff did not have retained lens material in the eye, that the laser capsulotomy was indicated and it was a genetic defect that caused the retinal detachment, not our client’s post-operative care. Shortly after the close of Ms. Adelson’s cross-examination the plaintiff agreed to voluntarily discontinue the case against our client, thereby ending the trial, as our client was the sole defendant.