Last month we highlighted the Appellate Division, Second Department decision in Halsey v. New York City Transit Authority 114 A.D.3d 726 N.Y.A.D. (2nd Dept.,2014) where the Court upheld a $3 million award to the 27 year old plaintiff who claimed a lower back injury and underwent spinal fusion surgery. 

This month's trial found us in Nassau County before Judge Mahon where a 39 year old driver claimed cervical and lumbar injuries which resulted in a laminectomy at L3-4 and L4-5 and fusion on April 18, 2011 together with anterior cervical decompression C5-C6 discectomy and hemivertebrectomy on June 5,2012. Both surgeries were performed by Dr. Sebastian Lattuga at Franklin/Northshore Medical Center. The plaintiff was employed with Local 147 as a "sandhog" working on the Second Ave subway tunnel. He stopped working after the accident and received a total disability award from Social Security Disability. Lost earnings were claimed at $62,000 per year till age 65.

The Defendant maintained $1.5 million in Coverage. The case settled during the liability phase of the trail for $360,000. Yes, we were in Nassau County, however; the risk of a damages verdict in excess of the coverage was not out of the question. 

How did we get this case closed at such a favorable amount for our client? 

For one, the liability piece of the trial involved a four-way stop sign intersection where the plaintiff claimed our client passed a stop sign and "T-boned" his vehicle. 

Plaintiff's expert was Nicholas Bellizzi, a tried and true engineer and accident reconstruction expert who has testified for the plaintiff over 550 times. 

Why is he the "go to" man for plaintiffs? Because he is great on the witness stand. Juries love his common sense, practical approach and he is thoroughly effective. 

How do you cross an expert like this? Besides attacking the witness on collateral issues, one method of cross-examination is to lay out the obvious bias of the witness by his ultimate conclusion. Both drivers obviously had an obligation to "see what was there to be seen" and to avoid entering the intersection when the adverse vehicle was so close that an accident was inevitable. 

Here the witness was discredited by his own admissions:

Q.  Was the distance between the vehicles when the drivers of both vehicles observed each other an important point in your analysis?

A.  In my analysis, it wasn't important. No.

Q.  Plaintiff is traveling at 5-10 mph at the point of Impact, you are aware of that, correct?

A.  Yes

Q.  And he is coming from a stopped position?

A.  Correct

Q.  If he is traveling at 5-10 mph from a stopped position, how long does it take him to get to the point of impact ?

A.  Four seconds.

Q.  In four seconds, how far could the defendant's vehicle travel if it's going 20 mph?

A. 120 feet.

Q.  Do you access any responsibility on the plaintiff for failing to avoid the accident?

A.  The answer is no because, like I said, it took four seconds. He left the stop sign. After one second nothing happened. After two seconds nothing happened. If you are at a stop sign, all way, you are relying that the other person will stop. It's no different than when you are at a green signal and the other direction has a red signal, you're relying that the people will stop. In this case, he relied on that but it didn't happen.

Sometimes, rather than a full frontal attack, the subtle approach, pushing the expert witness and the jury to see the absurdity of his own conclusions, is the right approach. 

Congratulations to Andrea Ferrucci for two successful appeals in the month of May. 

In Galarza v J.N. Eaglet Publ. Group, Inc. (2014 NY Slip Op 03353) decided on May 8, 2014 by the Appellate Division, First Department, the court upheld the dismissal of a Bronx County case on threshold grounds where the plaintiff underwent left knee arthroscopy and our client had a $1 million policy.

In Conrad v Alicea (2014 NY Slip Op 03617) decided on May 20, 2014 the Appellate Division, First Department denied plaintiff's motion to set aside a summary jury trial verdict on April 9, 2013 before Judge Barbato in Bronx County. Although a jury found a threshold breach, they awarded no money to the plaintiff. Plaintiff's counsel appealed the no damage award and our office defended the appeal. The First Department ruled the appeal was "precluded by the summary jury trial rules stipulated to by the parties. In consenting to the rules of this alternative dispute resolution forum, plaintiff specifically agreed to waive motions to set aside the verdict or judgment rendered by the jury, and waived any appeals, in order to quickly resolve the instant dispute. We, therefore, dismiss the appeal."

Congratulations to Tom Craven for a hard fought victory and defense verdict on threshold grounds before Judge Greco in Queens County on May 20, 2014 in the matter of Nicole E. Madtes v Alicia Scher, (700475/12). 

Damages included the allegation of a right shoulder injury requiring arthroscopic surgery. The plaintiff was also alleging internal derangement of the right knee, together with cervical and lumbar radiculopathy. Well done Tom!

 We also congratulate Keri Wehrheim for a great win on appeal involving the case of Gomez v Our Lady of Fatima Church (2014 NY Slip Op 03796) decided on May 28, 2014 by the Appellate Division, Second Department. 

Here, an infant plaintiff was injured when he allegedly fell while on the defendant's school playground area. The Appellate Court upheld dismissal of the suit noting:

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. (Mirand v. City of New York, 84 N.Y.2d 44, 49). Even if there is a triable issue of fact as to the adequacy of supervision, 'liability for any such negligent supervision does not lie absent a showing that it constitutes a proximate cause of the injury sustained' (Mayer v. Mahopac Cent. School Dist., 29 AD3d 653, 654, quoting Lopez v. Freeport Union Free School Dist ., 288 A.D.2d 355, 356; see Siegell v. Herricks Union Free School Dist., 7 AD3d 607, 608-609; Schlecker v. Connetquot Cent. School Dist. of Islip, 150 A.D.2d 548). [W]here ... an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not [a] proximate cause of the injury. (Soldano v. Bayport-Blue Point Union Free School Dist., 29 AD3d 891, 891 [internal quotation marks omitted]; see Walker v. Commack School Dist., 31 AD3d 752; Mayer v. Mahopac Cent. School Dist., 29 AD3d 653)."

Read the Gomez decision here. 

The e-file system in Supreme Court is tremendous. It's fast, easy, and no one can dispute your pleadings or motion papers were not served or properly filed. You would think the court would embrace this system as do all federal Courts, c.f. Biscone v. JetBlue Airways Corp.103 A.D.3d 158, N.Y.A.D. (2nd Dept. 2012), where the Appellate Division affirmed the denial of a motion to reargue because the lower court Judge found retrieving the documents off the e-file system too burdensome. 

"If a party simply refers to docket entry numbers, the motion court would still be forced to expend time locating those documents in the system, a task that could easily be complicated by a voluminous record or incorrect citations to docket entry numbers. Consequently, just as a court should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions (Sheedy v. Pataki, 236 A.D.2d at 97, 663 N.Y.S.2d 934; see Loeb v. Tanenbaum, 124 A.D.2d at 942, 508 N.Y.S.2d 688), a court should likewise not be compelled, absent a rule providing otherwise, to locate previously submitted documents in the electronic record when considering subsequent motions."

The New York State Legislature to the rescue; see proposed Senate bill S7075; Assembly bill A8972 below, which has advanced to a "third reading" as of May 5, 2014. 

Let's hope this is signed into law by the Governor.

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Subdivision (c) of rule 2214 of the civil practice law and rules is amended to read as follows:

(c) Furnishing papers to the court. Each party shall  furnish  to  the court  all  papers  served by THAT PARTY. The moving party shall furnish  all other papers not already in the possession of the court necessary to the consideration of the questions involved. EXCEPT WHEN THE RULES OF THE COURT PROVIDE OTHERWISE, IN AN E-FILED ACTION, A PARTY THAT FILES PAPERS IN CONNECTION WITH A MOTION NEED NOT INCLUDE COPIES OF PAPERS THAT WERE FILED PREVIOUSLY ELECTRONICALLY WITH THE  COURT, BUT MAY MAKE REFERENCE TO THEM, GIVING THE DOCKET NUMBERS ON THE E-FILING SYSTEM. Where such papers are in the possession of an adverse party, they shall be produced by THAT PARTY at the hearing on notice served with the motion papers. Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court, for good cause, shall other wise direct.

S 2. This act shall take effect immediately.

The Court of Appeals issued an interesting decision on May 8, 2014 in CDR Creances S.A.S. v. Cohen (2014 WL 1806913) on the issue of "Fraud upon the Court" involving the repayment of a loan made in the context of a hotel business venture. 

The plaintiffs claimed Maurice Cohen and his son Leon conspired to avoid repayment of the loan. In a Federal Court prosecution, the Cohen family was charged with, and found guilty of, a conspiracy to commit fraud on the New York court by forging documents and suborning perjury. At the August 2010 sentencing, the District Court concluded that Maurice and Leon Cohen had perpetrated fraud on the Supreme Court in New York. The Supreme Court dismissed the civil action based on the Federal conviction and the Appellate Division sustained the dismissal noting, "[t]he ample record is more than sufficient to demonstrate appellants' utter disregard for the judicial process, and while no finding of fraud on the court is necessary to warrant striking the pleadings, appellants' conduct is appropriately characterized as such" (104 A.D.3d at 24, 957 N.Y.S.2d 75).

The Court of Appeals noted:

"In accordance with CPLR 3126: [i]f any party ... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: [3] an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. As we stated in Kihl v. Pfeffer, "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. (94 N.Y.2d 118, 123 [1999] ). Compliance requires 'a timely response and one that evinces a good-faith effort to address the requests meaningfully' ( id.). A trial court has discretion to strike pleadings under CPLR 3126 when a party's repeated noncompliance is 'dilatory, evasive, obstructive and ultimately contumacious'. (see Arts4All, Ltd. v. Hancock, 54 AD3d 286 [1st Dept 2008] affd Arts4all, Ltd. v. Hancock, 12 NY3d 846[2009] and affd Arts4all, Ltd. v. Hancock, 13 NY3d 812 [2009] )

Apart from CPLR 3126, a court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice. Courts of justice are universally acknowledged to be vested, by their very creation, with the power to impose silence, respect, and decorum in their presence and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution. (Anderson v. Dunn, 19 U.S. 204, 227 [1821] ).

Fraud on the court involves willful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process 'so serious that it undermines ... the integrity of the proceeding'. (Baba-Ali v. State, 19 NY3d 627, 634 [2012] [citation and quotations omitted] ) It strikes a discordant chord and threatens the integrity of the legal system as a whole, constituting 'a wrong against the institutions set up to protect and safeguard the public'. (Hazel-Atlas Glass Co. v. Hartford-Empite, 322 U.S. 238, 246 [1944]; see also Koschak v. Gates Const. Corp., 225 A.D.2d 315, 316 [1st Dept 1996]["The paramount concern of this Court is the preservation of the integrity of the judicial process"]).

The evidentiary standard applied by the federal courts is sufficient to protect the integrity of our judicial system, and discourage the type of egregious and purposeful conduct designed to undermine the truth-seeking function of the courts, and impede a party's efforts to pursue a claim or defense. We adopt this standard and conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending 'party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action'. (McMunn, 191 F Supp 2d at 445, citing Skywark v. Isaacson, 1999 WL 1489038, 14 [SD N.Y. Oct. 14, 1999, No. 96 CIV. 2815(JFK) ] affd 2000 WL 145465, 1 [SD N.Y. Feb. 9, 2000). A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns 'issues that are central to the truth-finding process. (McMunn, 191 F Supp 2d at 445). Essentially, fraud upon the court requires a showing that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense."

Read the case here.