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iNews February 2015 - Issue 68 - In This Issue:
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What do Trials and Sporting Events Have in Common?
by Frank Scahill
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 Some cases have to be tried to verdict no matter what. Be it the severity of the injuries, the plaintiff's demand, disagreements on value or the amount of available coverage, there is always a case that cannot be settled. What do you do when you are facing the perfect case for a plaintiff and you know you have to take a verdict on that file? You certainly do not want to be hit for a seven figure verdict, or find your name in the "Verdicts" section of the law journal with a huge award for the plaintiff. What do you do when the facts are against you, the injuries are substantial, your policy is several million dollars and the case cannot be resolved?
A trial is a lot like a sporting event. Having played basketball in high school and college, unbeknownst to me, was a good primer for a future as a trial lawyer. Having to play a much better team, with a better record, better players and no hope of victory is not only a lesson for trial work, but for life. What do you do? Well, you put your head down, fight like hell and do your best.
Consider this case where the liability is a certainty - a jogger is knocked off the road by your elderly client who misjudged the distance between the car and the driver. The injuries include four surgeries and a total knee replacement. The plaintiff, a triathlete, now claims permanent disability and your coverage is in the millions. The case cannot be settled, the parties are too far apart and you have to take a verdict. What do you do?
Consider the following:
1. The "age" of the case is bound to help you. The surgeries are three, four or five years ago when the case comes to trial. The plaintiff has stopped treatment, gone back to work, is living with whatever limitations occurred because of the accident, but for the most part, is able to carry on at an activity level higher than most jurors, including regular exercise. Take advantage of the plaintiff's recovery and use what you can.
2. There were 719,000 knee replacements performed in the United States last year and 332,000 hip replacements, only a fraction of which were trauma induced. Use these statistics as a spring board to discuss arthritis, recovery time, the benefits of physical therapy, the reason for the procedure and the expected results. Why, out of 700,000 + procedures, is your plaintiff incapable of resuming a normal life?
3. Make the plaintiff's surgeon your friend on cross examination. Review the transcript attached. The plaintiff's surgeon helped us tremendously with what he gave up on cross. His own website had a statement that "most patients recover fully in six to eight weeks". Have the surgeon discuss the findings on the pathology report from the surgery. Guaranteed it will say "Osteoarthritis" or "Degenerative fragments" of cartilage, bone or connective tissue. Use that and run with it.
4. The late Judge Ed Hart always said, "always be closing". Nowhere is this more true than the difficult case with all the cards stacked in favor of the plaintiff. You should know what you will use in your closing argument at every stage of the case. Tell the jury upfront, in jury selection, and in your opening statement, that your client accepts blame, that you realize the plaintiff has undergone corrective surgeries, that the issue is money, not what happened. Paint the plaintiff as the one looking for an exorbitant recovery and you are the voice of reason.
5. Remember what Roosevelt said in a speech delivered at the Sorbonne in Paris, France on April 23, 1910, "The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes up short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."
Read Testimony Here
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 We welcome Tara Kennedy as a new associate to the firm. Tara is a graduate of Pennsylvania State University (2002) and Brooklyn Law School (2005). Tara has ten years of experience in the practice of law and she is a welcome addition to our ranks of fine, talented associates. She earned the CALI Award for Excellence in Law School and graduated Penn State in the top 4% of her class. We look forward to using her skills and dedication to excellence at our firm. Welcome aboard Tara!
2015 is starting off with a bang with trials galore - some great successes are highlighted below.
Congratulations to Tom Craven for a defense verdict on February 11, 2015 in Queens County before Judge Timothy Dufficy on the issue of damages in OUN SON YUN v MICHAEL TSUI, (Index No:700762/12).
Congratulations to Tom Craven for a defense verdict on the issue of damages on January 15, 2015 in Kings County in a summary jury trial before Judge Wavny Toussaint ANGELA CLARK v. IRENE A. ROBLING (Index No.: 27807/11) with parameters of $150,000 to $1,300,000.
Congratulations to Charles Mailloux for a defense verdict on the issue of damages on January 14, 2015 in Queens County before Judge Ulysses Leverett in CELIA MARCA and ARTURO SAETEROS v. LUIS A. URGILES (Index No.: 301235/06).
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Appellate Results That Matter!
 Congratulations to Andrea Ferrucci for her success on a hard fought appeal in Smith v Pottery King, Inc. (2015 NY Slip Op 01262) issued by the Appellate Division second Department on February 11, 2015.
This case presented a novel set of facts. On April 21, 2006, the defendant, Richard Cullen, a driver for the defendant Pottery King and an employee of a corporation in which Joseph King, Sr. was a principal, was driving a vehicle owned by Pottery King when he collided with a vehicle owned and operated by the plaintiff at an intersection in Queens County. The plaintiff settled with the corporate defendant, Pottery King and attempted to pursue the case against the owner of the business, Joseph King, claiming the driver was running a personal errand for the owner and was therefore his agent, and hence vicariously liable. Practically it meant another $1 million in insurance coverage if the plaintiff prevailed. The lower court, in a decision by Judge Janice Taylor in February of 2013, held the issue of principal/agency relationship is a question of fact for the jury. The Appellate Division reversed holding,
"Here, the Supreme Court should have granted that branch of King's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him. Contrary to the allegations of the complaint, the evidence submitted on the motion demonstrated that Cullen was an employee of the corporation in which King was a principal and not an employee of King individually. The evidence further demonstrated that Cullen was performing work pursuant to his corporate employment at the time of the accident. Accordingly, there can be no liability on the part of King under the doctrine of respondent superior (see Riviello v Waldron, 47 NY2d 297, 302; Ammirati v Arias, 111 AD3d 771; Begley v City of New York, 111 AD3d 5, 28)."
Read the decision here.
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NYC Administrative Code § 16-123(a)
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 What better time to talk about anow and ice cases than the dead of winter? Any defendant on a premises snow and ice case in the City of New York should acquaint him or herself with Administrative Code of the City of N.Y. § 16-123(a):
a. Every owner, lessee, tenant, occupant or other person having charge of any building or lot of ground in the city, abutting upon any street where the sidewalk is paved, shall, within four hours after the snow ceases to fall, ..... remove the snow or ice, .... from the sidewalk and gutter, during the time between nine post meridian and seven ante meridian not being included in the above period of four hours......In the boroughs of Queens and Staten Island, any owner, lessee, tenant or occupant or other person who has charge of any ground abutting upon any paved street or public place, for a linear distance of five hundred feet or more, shall be considered to have complied with this section, if such person shall have begun to remove the snow or ice from the sidewalk and gutter before the expiration of such four hours and shall continue and complete such removal within a reasonable time.
b. In case the snow and ice on the sidewalk shall be frozen so hard that it cannot be removed without injury to the pavement, the owner, lessee, tenant, occupant or other person having charge of any building or lot of ground as aforesaid, may, within the time specified in the preceding subdivision, cause the sidewalk abutting on such premises to be strewed with ashes, sand, sawdust, or some similar suitable material, and shall, as soon thereafter as the weather shall permit, thoroughly clean such sidewalks.
How do you win summary judgment on these cases? What shovel or plow can a defendant use to clear the docket of the snow and ice lawsuits?
CPLR §4528 states: "Any record of the observations of the weather, taken under the direction of the United States weather bureau, is prima facie evidence of the facts stated." The meteorological data may establish that the alleged icy condition did not exist at the time of the subject accident. See Massey v. Newburgh W. Realty, Inc., 84 AD 3d 564 (1st Dept. 2011), which held: "Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident (see Perez v. Canale, 50 A.D.3d 437, 855 N.Y.S.2d 488 [2008] ). CPLR 4528 provides that "any record of the observations of the weather taken under the direction of the United States Weather Bureau, is prima facie evidence of the facts stated."
See also Perez v. Canale, 50 AD 3d 473 (1st Dept. 2008), where the Court held: "Defendants established a prima facie entitlement to summary judgment in this action where plaintiff was injured when he allegedly slipped and fell on snow and ice while traversing a cement walkway leading to a building owned by Sagamore and managed by Knickerbocker. The climatological data relied upon by defendants' expert meteorologist was prima facie evidence of the facts stated therein (CPLR 4528), and the expert permissibly concluded that due to temperatures that were well above freezing in the 12 hours prior to plaintiff's fall, it would have been impossible for there to have been a precipitation-related ice or snow accumulation in the vicinity of plaintiff's fall. Contrary to plaintiff's contention, it was not speculative for defendants' qualified expert to conclude that the temperatures were at levels that would have caused melting on the days prior to and of the accident (compare Neidert v. Austin S. Edgar, Inc., 204 A.D.2d 1030, 612 N.Y.S.2d 529 [1994] )."
Bi Fang Zhou v. 131 Chrystie Street Realty Corp. (2015 NY Slip Op 00825) decided on February 3, 2015 by the Appellate Division First department is a classic example of how to win the snow and ice case via a summary judgment motion.
"Defendants submitted, inter alia, meteorological records showing that snow fell throughout the day prior to plaintiff's accident, ending after 11 p.m. Thus, "[p]ursuant to Administrative Code of the City of NY § 16-123(a), defendants had until 11:00 a.m. to clear the snow and ice from the sidewalk. Since that period had not yet expired at the time that plaintiff fell, defendants established their entitlement to judgment as a matter of law" (Colon v 36 Rivington St., Inc., 107 AD3d 508, 508 [1st Dept 2013]). In opposition, plaintiff failed to raise a triable issue of fact. She offered only speculation that defendants may nonetheless be held liable for making the natural accumulation of snow and ice worse by negligently attempting to remove it. "Mere evidence of the property owner's general habits regarding snow removal are insufficient to raise an issue of fact as to whether the defendant may have engaged in snow removal that led to the accident" (Nadel v Cucinella, 299 AD2d 250, 252 [1st Dept 2002]). Moreover, the presence of ice under a layer of snow, cited by plaintiff as evidence that snow removal had been negligently attempted, is insufficient to establish liability on the part of the entity responsible for maintaining the property (see Lenti v [*2]Initial Cleaning Servs., Inc., 52 AD3d 288, 289 [1st Dept 2008])."
Read the Decision Here.
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Changes to NYS Uniform Civil Rule § 202.5
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New Redaction Requirements
 Effective March 1, 2015, confidential personal information must be redacted prior to filing pleadings with the Court. The Administrative order of Judge Gail Prudenti, Chief Administrative Judge of the Courts of New York State, is attached below. The Administrative order of the Uniform Civil Rule for the Supreme Court and the County Court Section 202.5 is amended as follows: (e) Omission or Redaction of Confidential Personal Information. (1) Except in a matrimonial action, or a proceeding in surrogate's court, or a proceeding pursuant to article 81 of the mental hygiene law, or as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, the parties shall omit or redact confidential personal information in papers submitted to the court for filing. For purposes of this rule, confidential personal information ("CPI") means: i. the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;
ii. the date of an individual's birth, except the year thereof;
iii. the full name of an individual known to be a minor, except the minor's initials; and
iv. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof. (2) The court sua sponte or on motion by any person may order a party to remove CPI from papers or to resubmit a paper with such information redacted; order the clerk to seal the papers or a portion thereof containing CPI in accordance with the requirement of 22NYCRR §216.1 that any sealing be no broader than necessary to protect the CPI; for good cause permit the inclusion of CPI in papers; order a party to file an un-redacted copy under seal for in camera review; or determine that information in a particular action is not confidential. The court shall consider the pro se status of any party in granting relief pursuant to this provision. (3) Where a person submitting a paper to a court for filing believes in good faith that the inclusion of the full confidential personal information described in subparagraphs (i) to (iv) of paragraph (1) of this subdivision is material and necessary to the adjudication of the action or proceeding before the court, he or she may apply to the court for leave to serve and file together with a paper in which such information has been set forth in abbreviated form, a confidential affidavit or affirmation setting forth the same information in unabbreviated form, appropriately referenced to the page or pages of the paper at which the abbreviated form appears. (4) The redaction requirement does not apply to the last four digits of the relevant account numbers, if any, in an action arising out of a consumer credit transaction, as defined in subdivision (f) of section one hundred five of the civil practice law and rules. In the event the defendant appears in such an action and denies responsibility for the identified account, the plaintiff may, without leave of court, amend his or her pleading to add full account or CPI by (i) submitting such amended paper to the court on written notice to defendant for in camera review or (ii) filing such full account or other CPI under seal in accordance with rules promulgated by the chief administrator of the courts. Read the New Rule Here.
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Appellate Decisions of Note
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Q: Can a defendant submit the affidavit of a biomechanical engineer in support for summary judgment on a serious threshold motion?
A. Yes - see Holmes v Brini Transit Inc. 2014 NY Slip Op 09035 [123 AD3d 628], decided on December 30, 2014 by the Appellate Division, First Department.
Facts: On June 8, 2009, plaintiff Earl Holmes allegedly sustained injuries to both knees when the car he was driving was rear-ended by appellants' vehicle. He had arthroscopic surgery in September 2009 on the right knee, and in December 2009 on the left knee. The defendant maintained the injuries could not have arisen from the minor auto accident.
Holding "Defendants established prima facie that plaintiff did not sustain a significant or permanent injury to his knees by submitting their orthopedist's report finding normal range of motion and absence of residuals upon examination in 2010 (see Batista v Porro, 110 AD3d 609 [1st Dept 2013]; Zambrana v Timothy, 95 AD3d 422 [1st Dept 2012]). Defendants' orthopedist also opined that the tears found in both knees during surgery were preexisting degenerative conditions. Defendants also demonstrated lack of causation through evidence that plaintiff had previous surgery to his right knee following a prior accident, a radiologist's opinion that a tear in the left knee was pre-existing, and the affidavit of a biomechanical engineer opining that plaintiff could not have sustained such injuries in the subject accident, which involved minor damage to the vehicles (see Thomas v NYLL Mgt. Ltd., 110 AD3d 613 [1st Dept 2013]; Anderson v Persell, 272 AD2d 733, 734-735 [3d Dept 2000])."
Read the Decision Here.
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The Missing Page...
Imagine losing a case because your expert was missing only one page from a medical report containing thousands of pages. That is exactly what happened in Crewe v Pisanova (2015 NY Slip Op 00041) decided on January 2, 2015 by the Appellate Division, Fourth Department. One missing page of an EMG report was enough to reverse the lower Court order, which granted summary judgment to the defendants on the permanent loss of use category of serious injury.
In reversing the lower Court, the Appellate Division held: "Defendant's expert opined that plaintiff did not have a serious injury within the meaning of those two categories, based upon his examination of plaintiff and his review of plaintiff's medical records. The expert concluded, inter alia, that plaintiff did not sustain a serious injury because she did not have radicular pain. In addition, however, defendant submitted an electromyography study of plaintiff in support of their motion, indicating that plaintiff suffered from "moderate chronic left C5-6 radiculopathy." Further, when defendant's expert reviewed plaintiff's medical history, it was admittedly missing the first page of the electromyography study. That is, the page containing the conclusion that plaintiff has "moderate . . . radiculopathy" and we thus conclude that the basis for the expert's conclusion was thereby undermined. Consequently, defendant failed to eliminate all triable issues of fact with respect to the permanent consequential limitation of use and significant limitation of use categories (see Mugno v Juran, 81 AD3d 908, 909; Lesser v Smart Cab Corp., 283 AD2d 273, 273-274; see also Little v Ajah, 97 AD3d 801, 802)."
Read the decision here.
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No Fault Appellate Decision of Note
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Q. A claimant ("covered person") is exiting her vehicle and her right knee buckles as she is getting out of the car. Is that party entitled to No-Fault benefits from her automobile insurer?
A. No - see Gonzalez v. American Commerce Ins. Co. (124 A.D.3d 718), decided on January 21, 2015 by the Appellate Division, Second Department.
Facts: The plaintiff, who had been a passenger in her husband's vehicle, fell while exiting the vehicle after her husband had parked on the street in front of their home. She allegedly injured her knee as a result of the fall. The plaintiff submitted an application for no-fault benefits to the defendant under the automobile insurance policy issued to the plaintiff and her husband. The defendant denied her claim on the ground that the injury did not arise out of the use or operation of a motor vehicle.
Holding: "Section 5103 of the Insurance Law, part of the "Comprehensive Motor Vehicle Insurance Reparations Act", which pertains to the entitlement to first-party benefits, provides, in relevant part, that a person is entitled to first-party benefits from the insurer of a vehicle "for loss arising out of the use or operation ... of such motor vehicle" (Insurance Law § 5103[a][1] ). Where a plaintiff's injuries from an accident were produced other than as a result of the use or operation of the vehicle itself, no-fault first-party benefits are not available (see Cividanes v. City of New York, 20 NY3d 925, 926; Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d 211, 214). "Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but which are wholly unrelated to its use." (Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d at 215).
Read the decision here.
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