The New York State Trail Lawyers sponsored a CLE class entitled "How To Attack the 'Junk Science' of the Defense Biomechanical Expert" on October 9th limited to Plaintiff's counsel. The announcement noted: "This program is open only to plaintiffs-only attorneys. All registrants will be asked to sign an affidavit prior to entering the program." The program promised attendees would:

• Learn to identify the fallacies and absurd assumptions of the defense biomechanical expert, and how to expose them with crucial litigation and cross-examination techniques.
• Learn how to defeat the "Seat Belt Defense" in auto cases with real-world data.
• Learn how to prove injury causation in personal injury, TBI and medical malpractice cases using national hospital and crash injury data contained in US government databases.

The seminar was given by Michael D. Freeman, Ph.D. an Affiliate Professor of Epidemiology and Psychiatry at Oregon Health and Science. This is the same person who co-authored "From Good Hands to Boxing Gloves: How Allstate Changed Casualty Insurance in America."

Why the urgency to defeat the testimony of a biomechanical expert for the defense?  Obviously the testimony of a qualified biomechanical expert based on proven scientific analysis is effective and admissible in New York. Recent appellate cases have shown the trend that the biomechanical expert is allowed to testify without the necessity for a FRYE hearing (see Vargas v. Sabri 115 A.D.3d 505 N.Y.A.D. 1 Dept. March 13, 2014).

In Valentine v. Grossman 283 A.D.2d 571 (2d Dept. 2001), the Court held, "The trial court erred in excluding the testimony of the second biomechanical on relevancy grounds. That expert testified that, in his opinion, the difference between the force applied in the studies conducted on living people and the force generated in this collision was not significant. The testimony was clearly relevant. It tended to make the defendants' contention, that the accident was not severe enough to have caused the injuries sustained, more probable (see People v. Fagan, 215 A.D.2d 686, 687, 628 N.Y.S.2d 118). The weight to be accorded this expert testimony is a matter to be determined by the jury (see Coates v. Peterson & Sons, 48 A.D.2d 890, 369 N.Y.S.2d 503). This testimony was also admissible because it was probative of the central issue of the case (see Crisci v. Sadler, 253 A.D.2d 447, 676 N.Y.S.2d 646). 

Does science work for the defense in a Courtroom? It does for us. Take a glance at the  attached transcript from a 2013 trial in Queens. The jury found for the defense on this case on a claim where the injuries alleged result in arthroscopic surgery of the right knee and arthroscopic surgery of the right shoulder. The debate will go on in this subject matter. However, juries appreciate demonstrative evidence and on the right case a biomechanical expert can win the day.

Read the transcript here

October closed out with impressive victories at the trial level by Paul Duer in Queens County and Gil Hardy in Nassau County, who both secured defendant's verdicts on the issue of liability in bifurcated trials.

Paul Duer

Boucher-Valot v. Valot (Index No.: 16503/12) was a Queens County case that was tried to verdict before Judge Strauss by Paul Duer on October 29, 2014. Here, a wife was suing her husband with the benefit of Supplemental Spousal Liability Insurance Coverage, available since 2002. Insurance Law § 3420(g) generally bars coverage under a liability policy for claims brought by a spouse against the other spouse unless the policy expressly provides coverage for such claims, which the defendant in this case purchased under a separate rider. Here, the plaintiff claimed her spouse failed to put on the parking brake in their manual transmission Dodge Challenger, causing the car to roll over her when she attempted to use the vehicle. The plaintiff's injuries, fractured ribs and a collapsed lung, were not before the jury, who found the defendant spouse to be free from negligence.

Gil Hardy

Lyons v. Boukas (Index No.: 722/12) was a Nassau County Case which resulted in a defendant's verdict before Judge Galasso by Gil Hardy on the issue of liability. Here, the plaintiff bicyclist suffered serious injuries requiring left knee ACL reconstruction surgery and dental injuries with multiple fractured teeth. Although we uncovered an extensive history of criminal arrests and guilty pleas involving the plaintiff, the trial Court refused to allow cross examination on the plaintiff's criminal history. Despite this limitation, Gil Hardy secured a unanimous defendant's verdict.

October proved to be successful month for our Appellate Department with two significant victories.

Desthers v. Espinal (2014 NY Slip Op 7323) decided on October 29, 2014, by the Appellate Division, Second Department involved a claim by a New York City Firefighter under General Municipal Law § 205-a. The plaintiff, John Desthers, while responding to a fire, fell off a scuttle ladder within the Espinal home while he was trying to gain access to the roof. The plaintiff alleged a potpourri of violations of the New York City Building Code; Fire Code; Multiple Dwelling Law; Administrative Law and the Housing Maintenance Code as the statutory prerequisite to prevail on a General Municipal Law § 205-a claim for the firefighter. The plaintiff also alleged common law negligence for failure to maintain the scuttle ladder in the premises which were built in 1924 and contained the original ladder.

In affirming a dismissal of the action by the Lower Court, the Appellate Division in a unanimous decision stated:

"General Municipal Law § 205-a provides a right of action for firefighters who are injured as a result of any neglect, omission, willful or culpable negligence of the defendant in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments (General Municipal Law § 205-a[1] ). Although the plaintiff is not required to prove such notice as would be required under a common-law theory of negligence, the statute still requires that the circumstances surrounding the violation indicate that it was a result of neglect, omission, willful or culpable negligence on the defendant's part (Lustenring v. 98-100 Realty, 1 AD3d 574, 578 [internal quotation marks omitted]; see McCullagh v. McJunkin, 240 A.D.2d 713, 713; Lusenskas v. Axelrod, 183 A.D.2d 244, 248-249). 

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that she neither created nor had any knowledge of the alleged defect (see Lustenring v 98-100 Realty, 1 AD3d at 578; McCullagh v. McJunkin, 240 A.D.2d at 713; Lusenskas v Axelrod, 183 A.D.2d at 249). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the alleged violations of the Administrative Code of the City of New York, including section 28-301.1 thereof, were the result of some neglect, omission, or culpable negligence on her part (see Lustenring v 98-100 Realty, 1 AD3d at 578; McCullagh v McJunkin, 240 A.D.2d at 713). The defendant also established her prima facie entitlement to judgment as a matter of law dismissing the common-law negligence cause of action by demonstrating that she neither created nor had actual or constructive notice of the defect before the incident (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Schnell v Fitzgerald, 95 AD3d 1295, 1295-1296; Lal v Ching Po Ng, 33 AD3d 668, 668). In opposition, the plaintiffs failed to raise a triable issue of fact." 

Read the decision here.  

Arbitration to Stay Denied on Appeal

Al Galata

The testimony at the Framed Issue Hearing was all circumstantial, which the Appellate Division concluded was insufficient, as a matter of law, to implicate AutoOne Insurance Company, as the insurer for the offending vehicle.

"Joseph-Sanders and Yalcin testified at the hearing that, immediately after the collision, the driver of the offending vehicle got out of his green Ford Taurus and apologized to Joseph-Sanders, and that the driver was still present at the accident scene when ambulances arrived. Joseph-Sanders and Yalcin also testified that they exchanged information with each other, as well as with Vega. The original police accident report, which was stipulated into evidence, did not indicate the presence of a hit-and-run vehicle that caused a chain collision, but instead implicated Joseph-Sanders as the cause of the accident. As such, there was no evidence recovered from the scene of the accident linking Hammer's vehicle to the accident. Neither Yalcin nor Joseph-Sanders offered any explanation for not taking any steps to ascertain the identity of the driver of the offending vehicle, or license plate number of that vehicle, at the scene of the accident (see id. at 948).

Yalcin testified that she identified Hammer's vehicle, a green Ford Taurus, as the offending vehicle, upon observing it parked in the vicinity of the accident location a day after the accident. Even so, she did not record the license plate number or take any photographs of the vehicle at that time, or at any time prior to meeting Joseph-Sanders and Vega at a police station three or four days after the accident to amend the police report to include the offending vehicle. Indeed, the amended police accident report does not include the license plate number of Hammer's vehicle.

Joseph-Sanders and Yalcin testified that the offending vehicle, after striking the rear of the Joseph-Sanders vehicle, and in the presence of EMT workers and a crowd of people, backed up over a curb and struck a house. Yet, Yalcin's photos of Hammer's vehicle only showed slight scratches at the front of Hammer's vehicle, which was consistent with Hammer's testimony that his vehicle had 'wear and tear'.

Yalcin's in-court identification of Hammer, more than one year after the accident, was not credible. She testified that she only observed the other drivers as she "peeked out" from inside her car. Moreover, she and Joseph-Sanders described the driver of the offending vehicle as a "very older" or elderly man with a long beard and wearing traditional Hasidic clothing. Yet, in court, Hammer did not have a beard, did not dress in Hasidic clothing, and testified that he was not and has never been Hasidic. Joseph-Sanders, who spoke with the driver of the offending vehicle at the scene of the accident, testified that she was only able to recognize Hammer as the driver of the offending vehicle by his walk with a limp.

Hammer consistently testified that his vehicle was not involved in the subject collision. Even though Hammer admitted that he applied for a new insurance policy on January 5, 2012, the day after the accident, the referee also heard evidence that Hammer's insurance policy coincidentally was set to expire on January 11, 2012, and that he was seeking a cheaper rate of insurance.

Since there was no credible evidence linking Hammer's vehicle to the subject collision, Nationwide's petition to stay arbitration of Joseph-Sanders's uninsured motorist claim should have been denied, and the proceeding dismissed (see Matter of Allstate Ins. Co. v Stricklin, 93 AD3d 717)."

Read the decision here.

An interesting question of law arises in a case we are defending in Nassau County. Our driver is employed by a construction Company and ran over a co-worker at a construction site, causing a bad ankle fracture. Clearly the suit against the co-worker/driver is barred by Workers' Compensation Law 

§ 29(6). However, the driver was operating a vehicle owned by his father's company, not his employer. Does the plaintiff have the right to sue the owner of the vehicle that struck him under the vicarious liability provisions of Vehicle and Traffic Law § 388?

The New York State Court of Appeals in Isabella v. Hallock (22 N.Y.3d 788), a decision from March 27, 2014, addressed this issue, holding the injured plaintiff is barred from an action against the owner of the vehicle. The Isabella decision involved a certified question from the Second Circuit Court of Appeals:

Read the decision here.  

Access-A-Ride Decision

Darzimanova v. Le Clere  (2014 NY Slip Op 7594) decided by the Appellate Division, First Department on November 6, 2014 was a procedural tongue twister, ripe for a bar exam question. The case involved an "Access-a Ride" vehicle, that operate under the corporate name of MV Public Transportation Inc. Our Client, Bernard LeClere, was involved in an accident on the Westside Highway in June of 2011 with an Access-a Ride vehicle. The plaintiff, Darzimanova, was a passenger in the Access-a Ride vehicle at the time of the accident. The Access-a Ride defendants were dismissed from the suit on a "pre-answer" CPLR 3211(a)(7) motion to dismiss the complaint as against them for failure to state a cause of action. The pre-answer motion was made before issue was joined with LeClere, who raised cross claims against MV Public Transportation Inc. in his answer. After the CPLR 3211(a)(7) motion was granted, LeClere filed a third party action against the Access-a Ride defendants seeking contribution and indemnification. The Access-a Ride defendants then moved to dismiss the third-party complaint on the ground that law of the case mandated its dismissal. That application was denied by Judge Arlene Bluth and the Access-a Ride defendants appealed.

The Appellate Division, First Department denied the appeal noting, "Even assuming the law of the case doctrine is applicable there was no identity of issue in the two motions, and the motion court properly found that its "holding in relation to the prior motion to dismiss was based on the facts and law presented by the parties in that procedural posture, and no more" (191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [1st Dept 2011]). Le Clere's claim for contribution from appellants is not dependent upon their direct liability towards plaintiff, but is instead based on appellants' purported duty owed directly to him, which may have had a part in causing or augmenting the injury for which contribution is sought (see Sommer v Federal Signal Corp., 79 NY2d 540, 558-559 [1992]; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603 [1988])." 

Read the decision here.

Setting Aside a Verdict v Weighing the Evidence

In Ramirez v. Mezzacappa (2014 NY Slip Op 06808) decided October 8, 2014 by the Appellate Division, Second Department, we appealed the decision of Judge Arthur M. Schack from Kings County, who, following a jury verdict in favor of the defendant, set aside the verdict pursuant to CPLR 4404(a), directed a verdict in favor of the plaintiff on the issue of whether the defendants had violated Vehicle and Traffic Law §§ 1123(b) and 1129(a), and directed a new trial on the issue of proximate cause and comparative negligence.

The Appellate Division discussed the differences between setting aside a verdict as against the weight of the evidence and setting aside a verdict as a matter of law:

"CPLR 4404(a) provides, in relevant part, that: "[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence (CPLR 4404[a]). The Court of Appeals has recognized that the setting aside of a jury verdict as a matter of law and the setting aside of a jury verdict as contrary to the weight of the evidence involve two inquiries and two different standards (see Cohen v Hallmark Cards, 45 NY2d 493, 498). For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is simply no valid line of reasoning and permissible inferences which could possibly lead . . . to the conclusion reached by the jury on the basis of the evidence presented at trial" (id. at 499). However, [w]hether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors (Scalogna v Osipov, 117 AD3d 934, 935). When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" (Scalogna v Osipov, 117 AD3d at 935, quoting Handwerker v Dominick L. Cervi, Inc., 57 AD3d 615, 616). 

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence" (Costa v Lopez, 120 AD3d 607, 607; see Echeverria v MTA Long Is. Bus Auth., 100 AD3d 588, 589). Thus, rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence (see Nicastro v Park, 113 AD2d 129, 135). Where a court makes a finding that a jury verdict is not supported by sufficient evidence, it "leads to a directed verdict terminating the action without resubmission of the case to a jury" (id. at 132). Where a court finds that a jury verdict is against the weight of the evidence, it grants a new trial (see id.)."

Here the Appellate Division noted the lower Court "erred in setting aside the verdict as legally insufficient and then making its own factual findings." The Court should have set aside the verdict as contrary to the weight of the evidence and ordered a new trial.

Read the decision here.