Congratulations to the Picciano & Scahill, P.C. co-ed softball champions who won the Long Island Litigation League Championship in a solid 5-1 win over L'Abbate, Balkan, L.L.P. on August 27rd 2012.

For the second year in a row we bring home the softball championship trophy. Way to go team!


 

The summer is over, at least as far as the Courts are concerned,  and now it's back to business. Trial Season is upon us and from now until Christmas our lives are filled with late nights, lost weekends, and tons of transcripts and records. As Hyman Roth said in The Godfather Part II when lamenting over the death of Moe Greene, "this is the business we've chosen".  Below are ten tips for jury selection to get us back in the swing of things.
 
1.       Find out the lay of the land. You may have chosen juries in every county in New York State, however, the rules change. If you have not been in Staten Island in a few years, or this is your first jury selection in Riverhead, ask the clerk what rules apply. Speak to your adversary before you start so you are both on the same page and there are no surprises. If your veteran adversary tells you we are using "White's Rules" and you are not old enough to have selected before Judge White at 71 Thomas Street, be sure to ask what that means. Read the attached 2009 publication from Judge Pfau. For the veteran or the rookie, a refresher on the rules that now apply is worth a quick read.  
 
2.       Be cordial with your adversary, but don't spend time telling the jury you have been friends since law school and you just went to your adversary's son's bar mitzvah. Jurors have watched too many episodes of Law & Order, they do not expect you to be friends with your opponent. Avoid small talk with your adversary out in the hall where jurors can see you.
 
3.       Be professional in front of the jury no matter what tactic your adversary uses. If you want to object to what is being said, ask the attorney to step outside. Fighting in front of the jury is demeaning and will never help your cause.
 
4.       If you find yourself in a bar fight with your opponent who seemingly will not listen to reason, invoke CPLR 4107, "On application of any party, a judge shall be present at the examination of the jurors." If you request a Judge's presence you can expect an angry Judge, a short selection and perhaps a tough start for trial but the failure to comply with this application is reversible error. (see Charles T. Guarnier v. American Dredging Co. 145 A.D.2d 341 First Department 1988)
 
5.       If a juror has his or her arms folded every time you speak; is scowling at you and smiling for your adversary, but is repeatedly saying he or she can be fair, and you are out of challenges, don't forget to ask about past jury service. If a juror was called for jury selection within the past six years in State or Federal Court, you have a challenge for cause under Judiciary law 524. (See People v. Winter 95 NY 2d 504 Ct. of Appeals 2000)
 
6.       Listen, Listen, and Listen. Do not under any circumstances give speeches. Do you really think they are interested in what Voir Dire means in French or what the Constitution says about jury trials. Ask questions that probe how a jury feels about your case. You want to know what they think. This is the only chance you have to find out. The next thing they say will come at the time of the verdict. You want to know what their life experiences have been that may hurt you.
 
7.       Don't fall in love with a juror. He or she may smile every time you talk, sit up in the chair when it's your turn and say all the right things. Your adversary will exercise a preemptory challenge to get rid of that juror. You are looking for the juror who will hurt you. The one you feel is most against you. Find out why and get rid of them yourself, either for cause or use one of your three challenges.
 
8.       Air your dirty laundry. Was your client arrested for DUI? Does he have a criminal background? What about the client who is an undocumented alien or speaks only Farsi? Do you think the first time the jury should find this out is in the Courtroom? The answer is a resounding NO. Tell the jury about your case, your client and all the warts. Weed out the people who admit they cannot be fair to your client. If not, you are sure to regret it and you will be hurt by your silence.
 
9.       Don't forget the alternates!!  First, what method are you using---designated alternates always preferred. You do not want to be speaking and focusing on a juror who will not be making a decision at the end of the case.  Make sure you spend as much time with the alternates as you do with the main panel and ask them if they are comfortable with being an alternate. In 20% of the cases, they are called to deliberate in place of a main juror who was excused; make sure they know how important they are.
 
10.   Be yourself. There is only one Tom Moore, Dave Dean, Bobby Sullivan, and Ben Rubinowitz. You want to act like Pete Johnson would at trial? Your acting will fall as short as an attempt to act like Clint Eastwood. Be yourself, be honest, find what works for you and be enthusiastic. It is a profound privilege to stand before a Judge and jury to represent a client, be it in the smallest courtroom in Civil Court in Kings County or in the largest in the Southern District in New York. Enjoy yourself, this is as good as it gets for us, so have fun !
 

New York Labor Law Section 200 applies to all contractors and owners "except owners of one and two-family dwellings".  The same applies for section 241 of the Labor Law. What if the homeowner is converting a five story building in Manhattan into a single family residence? Is the this the type of home the legislature sought to exempt from the provisions of the Labor Law?
 
Judge Catterson from the Appellate Division, First Department, in a strong dissent, questions the applicability of the homeowner's exemption found in NY Labor Law § 240(1) and § 241(6). Lopez v Dagan, decided on August 21, 2012 (2012 NY Slip Op 05999) involved construction work at a five-story building located at 333 East 51st Street in Manhattan owned by the defendants Rafael and Jacklin Dagan. The homeowners hired R & L Construction, Inc. to convert the building to a brick and limestone single-family townhouse. The homeowners also hired an architect and structural engineers to design plans for the renovation. The plaintiff, Fredy Lopez,  was employed by R & L Construction as a laborer at the site. On the morning of January 9, 2006, he was removing containers filled with dirt, stone, and brick when a section of the plywood floor on which he was standing collapsed. He claimed injuries to his back, neck, and left knee when he fell approximately eight feet into the basement of the townhouse and a container fell on top of him.
 
The majority dismissed plaintiff's claims under the NY labor law, including his section 200 claim, stating "The (lower) court, however, should have dismissed plaintiff's Labor Law § 200 and common-law negligence claims as against the owners. With respect to plaintiff's claim pursuant to Labor Law § 200, the owners made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that plaintiff's accident was caused by the means and methods employed by the general contractor, namely, the improper installation of a temporary floor, and that they had no supervisory control over the operation (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Lombardi v Stout, 80 NY2d 290, 295 [1992]). In response, plaintiff failed to raise an issue of fact."
 
Judge Catterson strongly disagreed: "Contrary to the majority's equivocal holding, in my opinion the plaintiff's injuries resulted from a dangerous premises condition, and thus the issue to be determined at trial is whether the defendant homeowners had either constructive or actual notice of the condition....there is no difference between asserting a claim based upon the common-law principles of negligence or one which alleges that the defendant violated section 200 of the Labor Law. Section 200 is nothing more than a codification of the common-law duty of an owner or general contractor to provide a safe place to work."


  Read the decision here.




 
 
Judge Straniere has kept his sense of humor on the bench. His decision is a clarion call for reform and is worthy of our review.

Read the decision here.
 

________________________________

What is reasonable compensation for an ankle fracture requiring two surgeries and a herniated disc requiring back surgery in a 23 year old plaintiff?

If your answer was $3,040,645.50 you are correct.
 

 



CPLR 5501[c]). "

Read the Decision here.