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Results that Matter
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Congratulations to Frank Scahill for a favorable result on trial in Queens County before Judge David Elliot on February 21, 2003 in the matter of Eiland v Lifshitz (20825/10).
The case involved a cervical discectomy with three level fusion from a rear end collision and over
$5 million in coverage. The demand for settlement was at all times $3 million dollars. The case settled for $200,000 ($110,000 from our client) after the collapse of the plaintiff on cross examination.
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Congratulations to Anthony Graziani for a defense verdict on liability on February 6, 2013 in Suffolk County before Justice Molia in the matter of Walter Ayala v. Nicole Fallon Enterprises (16847/09).
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Trial Practice Tips
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Summations are my favorite part of the trial. You are in the home stretch with another case soon to be in the hands of the jury. All the heavy lifting of the trial is done, now it is your chance to cross that finish line a winner.
The late Judge Hart of Nassau County was a legendary trial lawyer, whose cases included the bad faith action of Pavia v. State Farm in 1990 before Judge Spodek in Kings County. I had a chance to watch Judge Hart try that case. His motto for closing arguments was "ABC", always be closing. There is no one formula that will serve as a blueprint for every trial. My number one suggestion is to be yourself and be brutally honest with the jury about your case, talk about the good and the bad and what makes sense to them.
As a defendant, you sum up first, a great advantage. By the time you sit down, you should have planted the seeds of doubt in the jury's minds about the plaintiff's case and raised significant questions for the plaintiff's counsel to answer when he or she sums up. After all, a plaintiff who is summing up has not been able to convince the defense or their carrier of the merits of their case. If the case was that good, it would have been settled. The plaintiff, who gets to sum up is already in a losing position. Plaintiff's counsel have a lot at stake by going to trial, the risks and rewards have always been higher than the defense attorney's position.
Some points to keep in mind:
- Highlight questions for plaintiff's counsel that you suggest to the jury must be answered if the plaintiff is entitled to their verdict. Where was a family member to corroborate the plaintiff's tale of debilitating pain post accident and a pain free lifestyle prior? Why didn't we hear from one person close to the plaintiff who could tell us that was true?
- Talk about the obvious - the difference between the world the jurors live in where common sense prevails, and what happens during a personal injury case. In the real world you go to the doctor to get better. In the world of personal injuries trials you go to the doctor forever, you never get better until the case is over. Over 500,000 arthroscopic procedures are performed for medial or lateral meniscal tears in the U.S. every year. Why is it this plaintiff is totally disabled from the simple procedure when the rest of the world improves?
- Use common sense analogies. Minor damage to the plaintiff's automobile; no complaints at the scene; no hospital treatment. Chiropractic treatment for a year and then spinal surgery. How is that possibly related? Highlight all the inconsistencies in the records and go over what your radiologist said about degenerative disc disease.
- Be humble and be credible. Tell them plaintiff's counsel is going to ask you for a great deal of money to compensate the injured plaintiff. Before they award the first dollar ask them to reconcile all the holes in plaintiff's case. Warn against compromise if the case calls for it. Ask them, is this justice? Has this plaintiff proven their case ?
You may get hammered by the jury with a resounding win for the plaintiff, but those are the risks of trial. If you have done your job and done it well you can sit down with pride after your summation, knowing you have put on a good case.
A sample summation from a back surgery case is attached. Good Luck to you!
Read the summation here.
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RESULTS THAT MATTER!
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Favorable UM/SUM Decisions
Congratulations to Albert Galatan, our resident UM/SUM litigator, in gaining favorable results on several UM/SUM matters in January.
AutoOne Insurance Company v. Ricardo Solivan; 700829/2011; Supreme Court, Queens County: We filed a Petition to Stay UM/SUM Arbitration in the Supreme Court, Queens County, in pursuit of Discovery, including an Examination Under Oath ("EUO") and Independent Medical Examinations ("IMEs"). The Court granted a Temporary Stay of Arbitration and Respondent was directed to appear for said EUO and IMEs. Due to Respondent's failure to comply, we moved for a Permanent Stay of Arbitration. The Court agreed with our position and granted a Permanent Stay of Arbitration.
Countrywide Insurance Company v. Diana Lopez v. Rebecca Hilton and AutoOne Insurance Company; 16617/2012 andCountrywide Insurance Company v. Luis Toro v. Rebecca Hilton and AutoOne Insurance Company; 21279/2012; Supreme Court, Kings County:
Our client, an automobile insurer, issued an automobile policy of insurance in the State of New Jersey. Under a new law enacted in New Jersey, an insured can opt-out of bodily injury liability coverage. Our client's insured chose this option. Subsequently, our client's insured was involved in an accident in the State of New York. The passengers in the vehicle struck by our client's insured commenced UM/SUM claims against their automobile insurer. Said automobile insurer filed a Petition to Stay Arbitration, seeking a Permanent Stay of Arbitration and a finding that our client was obligated to provide bodily injury liability coverage for the subject accident. We established that our client was in compliance with New Jersey Law and was not obligated to provide bodily injury liability coverage. Consequently, in two separate matters, the adverse insurer withdrew their Petitions.
GEICO v. Erik Cruz v. Michael Chong and State Farm Insurance Company; 7018/2012; Supreme Court, Kings County: Our client, an automobile insurer, cancelled the subject policy of automobile insurance prior to the date of the subject accident. Upon presenting our documentation and arguing our client's position that the policy was properly cancelled prior to the accident, the Petitioner withdrew this action as filed against our client.
Rosicelia Rodriquez, Andy Guerro-Rodriguez and Stephen Rodriquez v. State Farm Insurance Company; 43200S01419212; American Arbitration Association: This matter was file with the American Arbitration Association for the resolution of UM/SUM claims filed by three claimants seeking monetary compensation for their injuries. We argued that all three claimants had not sustained a serious injury, as required by New York State Insurance Law Section 5102. In support of our position, we conducted, prepared and submitted the EUO transcripts, IMEs conducted as part of the claimant's No-Fault Claims and Memorandums of Law. Upon hearing testimony and reviewing the evidence, the Arbitrator denied the claims of two of the claimants on the grounds that their injuries were not serious, as defined by New York State Insurance Law Section 5102. The Arbitrator awarded the third, infant claimant, the nominal amount of $5,000.00.
If you have any questions on these, or any other UM/SUM matter, do not hesitate to contact our office.
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Is it "Material and Necessary"?
| |  As a defendant's attorney, you should always take a thorough pedigree at the examination before trial of the plaintiff. Not just date of birth and current address, but a thorough review of work history and social history. Where has the plaintiff lived and who has he/she lived with? Often you receive some important pieces of the defense puzzle that can help you tremendously as you move on in the case. You certainly are entitled to know whether the plaintiff has been known by any other name. What happens when you find out the plaintiff has been married since the time of the accident in question? Obviously you need more details, when and where was the wedding, and importantly was there a VIDEO at the reception. Chances are the bride or groom was not exhibiting the same grimace and complaining of daily pain on a scale of 8 out of 10 that day. Granted the bride or groom in pain would make the most of their wedding day but that's not for the defendant to point out. Are you entitled to that wedding video? Sgambelluri v. Recinos, 192 Misc. 2d 777 is a 2002 Supreme Court case from Nassau County authored by Justice Daniel Palmieri, on point and well reasoned. Judge Palmeri weighed the privacy issue noting, "The delicate balance between allowing liberal disclosure and protecting the parties from unnecessary intrusions is left to the sound discretion of the lower courts.... When one party seeks to discover personal items of another party, the relevancy of the discovery request must be established. For example, in a personal injury action a defendant's karate manual was held discoverable since it was "possibly relevant" to the claim (Szafranski v Priebe, 152 AD2d 1003 [4th Dept 1989]), and telephone records of a plaintiff have been held to be discoverable (Greenfield v Lyons, 238 AD2d 281 [1st Dept 1997]). Whether it be telephone records, photographs, karate manuals or videotapes, New York case law is quite clear that any facts bearing on the controversy which will assist preparation for trial by sharpening the issues, will be subject to disclosure." In a case that is good law in New York, the Court stated, "The wedding video may or may not clarify these allegations. Nevertheless, applying the "material and necessary" standard to plaintiff's wedding video makes it quite clear that it is relevant to the claim." Read the decision here. |
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APPELLATE DECISIONS OF NOTE
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What happens when your "fact witness" demands a substantial payment to come to trial and testify about crucial evidence in your case ?
| |  CPLR section 8001 states, "Any person whose attendance is compelled by a subpoena, whether or not actual testimony is taken, shall receive for each day's attendance fifteen dollars for attendance fees and twenty-three cents as travel expenses for each mile to the place of attendance from the place where he or she was served, and return." What if your witness is a Doctor and demands $10,000 to come to Court for 20 minutes of testimony?
Caldwell v Cablevision Systems Corp., (2013 NY Slip Op 78) was decided by the New York Court of Appeals on February 7, 2013 on this very issue.
On the issue of liability, Plaintiff testified that she stepped into a "dip in the trench" that caused her to fall. To rebut this testimony, Cablevision subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor, who charged $10,000 to come to Court, was called merely as a fact witness to testify concerning his entry in the "history" section of his consultation note that plaintiff "tripped over a dog while walking last night in the rain." The Court of Appeals concluded, "an attorney may pay a witness whatever fee is demanded, however exorbitant it might be."
The Court did state, however, "Supreme Court should have also crafted a charge that went beyond the CPLR 8001requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was
disproportionately more than what was reasonable for the loss of the witness's time from work or business. Should the jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness's testimony (see PJI 1:90.4). Of course, such a charge must be requested in a timely fashion."
Read the decision here.
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A conflict over a health club's duty to use an Automated External Defibrillator on patrons is decided.
| |  Gregory C. Miglino, Jr., v Bally Total Fitness of Greater New York, Inc., (2013 NY Slip Op 780), was decided by the New York Court of Appeals on February 7, 2013. The case involved a patron who collapsed from a cardiac issue at a health club and the club's duty to use a required Automatic External Defibrillator (AED) to revive him. The case resolved a conflict between the First and Second Departments. On Appeal, the Second Department held, 92 AD3d 148 [2d Dept 2011]), contrary to the First Department's decision in Digiulio v Gran, Inc. (74 AD3d 450, 453 [2010], affd on other grounds 17 NY3d 765 [2011]), that General Business Law § 627-a, which mandates certain health clubs to maintain on premises at least one AED and an individual trained to operate it, "also imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence for failure to do so" (92 AD3d at 150). In siding with the First Department, the Court of Appeals in a decision authored by Judge Read stated: "As the First Department pointed out in Digiulio, a health club had no duty at common law to use an AED, and could not be held liable for failing to do so (Digiulio, 74 AD3d at 452). Accordingly, "to interpret Section 627-a as implicitly creating a new duty would conflict with the rule that legislative enactments in derogation of the common law, and especially those creating liability where none previously existed, must be strictly construed. The statute's limitation of the liability of health clubs and their agents when 'voluntarily' using AEDs to aid stricken persons indicates that its use is not obligatory. While the Legislature meant to require health clubs to make AEDs available and encourage their use in medical emergencies, it did not intend to impose liability on clubs for usage failures" (id. at 453 [internal citations omitted]). In sum, we now resolve the issue that we left open when we affirmed Digiulio on other grounds: we hold that General Business Law §627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained onsite." Read the decision here. |
| What to Avoid in the Practice of Law | | 
Matter of Tanella decided by the Appellate Division, Second Department on January 9, 2013 (957 N.Y.S.2d 399) lists a few things to avoid in the practice of law. The decision lists 25 charges against the respondent which were sustained, from misappropriating escrow funds, to fabricating court orders and neglecting matters entrusted to him.
This attorney, admitted in 2003, gained the wrath of the Appellate Court with a finding, "In determining the appropriate measure of discipline to impose, it is significant to note the absence of any mitigating circumstances. In contrast, the aggravating factors in this case are numerous and substantial, e.g., complete abdication by the respondent of his fiduciary duties over client funds and his escrow account; serial neglect by the respondent of legal matters entrusted to him; giving of false testimony to the Grievance Committee; deceiving his clients into believing claims had settled when the respondent had not even commenced actions on their behalf; deceiving third parties into believing the settlement status of claims in order to procure funds; fabrication of court orders by the respondent; issuance of checks which the respondent knew would be returned for insufficient funds; financial injury caused to clients and third parties as a result of the respondent's misconduct; and participation by the respondent in a criminal enterprise and the failure to extricate himself from such enterprise whose objective was to defraud insurance companies. The severe and gross violations committed by the respondent fully merit the Special Referee's conclusion that the respondent is "morally corrupt and intellectually bankrupt."
Read the decision here.
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Car Wash Cases
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We seem to get a lot of car wash cases. You would think that a car wash would be a safe place for a quick clean up, but for some reason, the short drive the attendant takes from the end of the line to where they dry off the car, sometimes ends in disaster. Invariably the car wash employee loses control and strikes another patron causing serious injury. How do you defend these cases in light of the vicarious responsibility set forth in Vehicle & Traffic Law section 388? The employee is considered a permissive user of your insured's vehicle under the statute and the vehicle owner is responsible for the driver's actions. The answer lies in a viable cross-claim for common law indemnification from the car wash, who should have viable coverage. Consider the recent case handled by our office resulting in a summary judgment decision on the common law indemnification claim in our favor. Rick Vasquez v. Ismael Acquino (21931/10) was authored by Judge John J.J. Jones, Jr. of Suffolk County Supreme Court. Judge Jones stated, "It is well settled that a passive owner of a vehicle is vicariously liable pursuant to the statute governing negligence in the use or operation of a vehicle attributable to the owner is entitled to common-law indemnification from the employer of an active tortfeasor acting within the scope of his employment". (Scherer v North Shore Car Wash Corp., 32 AD3d 426, 821 NYS2d 2 19[2d Dept 20061; see also Ciatto v Lieberman, 1 AD3d 553, 769 NYS2d 48 [2d Dept 20031; ELRAC, Inc. v Beckford, 250 AD2d 725,673 NYS2d 192 [2d Dept 19981; Winnick v Kuppermnn Constr. Co., 29 AD2d 261, 287 NYS2d 329 [2d Dept 19681). Here, Tyrie has established her prima facie entitlement to summary judgment regarding her right to common-law indemnification from FCW and Aquino. Thus, it is incumbent upon the nonmoving parties to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O'Neill v Fishkill, supra)." A copy of the order is attached. |
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Picciano & Scahill, PC
900 Merchants Concourse-Suite 310
Westbury, New York 11590
516.294.5200
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DISCLAIMER:
This newsletter is for education and information purposes only, and is not intended to provide legal advice. No attorney-client relationship exists or is created by the use of this newsletter or the information provided herein. This newsletter should not be used as a substitute for competent legal advice from a professional attorney in your state.
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