No-Fault Threshold Dismissal Obtained
Complaint Dismissed In Fall From Ladder Case
Defense Verdict in Pedestrian Knockdown Case
Summary Judgment For Owners In Bronx Labor Law Case
Bronx Jury Dismisses Case Based on No Fault Threshold
Court Dismisses Complaint In "Suicide by Cop" Case
Litigating Disability Insurance Claims Forum
Automobile Litigation Seminar
RKT Wins Summary Judgment On Appeal In Slip And Fall Case
RKT Wins Directed Verdict on Grounds of No "Serious Injury"
RKT Wins Defense Verdict in “Pedestrian Knockdown” Case
RKT's Tenth Anniversary Celebration
- - - - - - - - - - - - No-Fault Threshold Dismissal Obtained
RKT Attorney Brenda Hall obtained summary judgment and a dismissal of a plaintiff's complaint in Nurys Damian, Francisca DeJesus and Jose Suero v. Julio Sosa, Sonia Estevez, Roberto B. Hernandez and Luis R. Duran, Supreme Court, Bronx County Index Number 18715/2005 ( April 11, 2008). The plaintiff, a then forty-five year old passenger in a vehicle involved in a collision with an American Transit insured vehicle in October 2002, claimed to have sustained herniated discs and carpal tunnel syndrome to the right wrist as a result of the minor side-swipe. However, her medical records showed a history of carpal tunnel syndrome that pre-dated the accident. Brenda moved for summary judgment on the grounds that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law Section 5102(d). In granting the motion, Justice Norma Ruiz credited the expert reports submitted in Brenda's motion for summary judgment which indicated that the plaintiff's claimed back injuries were unrelated to the accident and degenerative in nature, that her carpal tunnel syndrome pre-existed the accident, and that the accident was not the catalyst for her surgery. In addition, Judge Ruiz found that the evidence submitted by the plaintiff regarding her herniated discs failed to raise an issue of fact because there were no objective findings of limited range of motion subsequent to the accident. Therefore, the Court could not determine whether the limitations found by plaintiff's expert were actually occasioned by the accident.
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Complaint Dismissed Where Plaintiff Fell From a Ladder While Working Kevin Horbatiuk and Matthew Mazzola obtained summary judgement and a dismissal of plaintiff’s complaint in Parente vs 277 Park Avenue LLC., Supreme Court New York County Index Number 101656/06 ( May 30, 2008). The plaintiff, an engineer called to tenanted space rented by JP Morgan Chase ("Chase") at 227 Park Avenue to replace the motor of a fan in the ceiling, positioned a ladder on a desk top to gain access to the fan. When he reached forward his weight shifted and he fell from the ladder. As a result of the fall the plaintiff sustained a fractured humerus which was treated with open reduction and internal fixation of a metal plate. Justice Carol Edmead agreed with Kevin and Matt’s arguments that Sections 240(1) and 241(6) of the Labor Law were inapplicable since the work performed by the plaintiff constituted "routine maintenance" and not "erection, demolition, repairing, or altering." In addition she held that since Chase did not exercise any supervisory control over the manner in which plaintiff performed his work it was also entitled to summary judgement regarding the claims brought under Section 200 of the Labor Law and the Common Law.
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Defense Verdict in Pedestrian Knockdown Case
RKT Attorney John Komar won a defense verdict in a pedestrian knock down case where the plaintiff was hospitalized for more than a year with a traumatic brain injury and multiple skull fractures.
In Grodzki v. Olkowski, Kings County Index Number 2663/05, our client denied being involved in the accident despite the testimony of the plaintiff’s son who identified him as the driver and claimed to recognize him from the neighborhood.
Through an effective use of live testimony and documentary evidence at trial, John convinced the jury that our client was on his way to JFK airport with a passenger at the time of the accident and was not operating the vehicle which struck the plaintiff. John first offered the testimony of the passenger in our client’s vehicle and the local dispatcher who booked the ride. John then bolstered his line of defense with an employee from Lot Polish Airlines who testified that the passenger was in fact booked for a flight to Poland out of JFK on the night of the accident.
John even admitted into evidence a copy of the passenger’s bank statement which corroborated the testimony that the client and the passenger stopped at the bank on the way to the airport. In response to his persuasive presentation, the Brooklyn jury found that our client did not operate the vehicle that struck plaintiff and delivered a defense verdict.
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Summary Judgment for Owners
In Bronx Labor Law Case
RKT Attorney John Komar won summary judgment for our client in the case of Defendini v. University Avenue Associates, Bronx County Index # 26647/04. Our clients were an ownership group that developed senior housing in the Bronx. The 40 year old plaintiff, an employee of the general contractor at the construction site, was injured when sheet rock stacked by a delivery contractor fell and struck him, causing a serious leg fracture which required open reduction and internal fixation. In a 62 page written decision granting our motion, Justice Nelson S. Roman of Supreme Court Bronx County adopted John’s persuasive arguments and dismissed all claims and cross claims against our clients. John argued that Section 240 (1) of the Labor Law did not apply since the plaintiff’s alleged injury did not involve a significant height differential. In addition, he argued that plaintiff’s claims under Section 241 (6) of the Labor Law were dismissible because the plaintiff failed to cite any applicable sections of the Industrial Code. The Court also dismissed plaintiff’s claims under Section 200 of the Labor Law and the common law negligence claims based on John’s arguments that our clients did not supervise the plaintiff’s work, create the condition that caused the injury or have notice of the condition.
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Bronx Jury Dismisses Case Based on
No Fault Threshold
RKT Attorney John Komar obtained a defense verdict from a Bronx jury in a case involving a two car collision at an intersection where both drivers claimed the other driver ran the red light. In Calvin v. David, Bronx Civil Court Index Number 300164/06 the plaintiff, a passenger in the other vehicle, claimed to have sustained multiple cervical disc herniations which required a discectomy with fusion at C5-C6. John’s defense was that the plaintiff suffered from long standing degenerative disc disease and that she had a similar neck injury from a prior accident. The plaintiff denied sustaining an injury to her neck in the prior accident. John used the cervical MRI films taken after the prior accident to show that cervical disc herniations were long standing and present at that time. John also used a biomechanical engineer who after conducting a complete crash analysis concluded that the collision in the intersection did not create physical forces which could have caused the necessary mechanics for a passenger to sustain a herniated cervical disc. In summation, plaintiff’s counsel asked the jury to award $1.5 Million Dollars. After deliberating for forty five minutes, the jury accepted John’s arguments and determined that the plaintiff had not sustained a “serious injury” under the No-Fault law which was causally related to the accident. They, thus, dismissed the case.
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Court Dismisses Complaint In "Suicide by Cop" Case
Kevin Horbatiuk and Matthew Mazzola recently obtained summary judgment in favor of the Life Insurance Company of North America (“LINA”) in a case involving “accidental death” benefits under an employer provided ERISA governed policy. In King vs LINA the plaintiff, a beneficiary under her husband’s group life insurance policy, made a claim for the $437,000 “accidental death” benefit after he was shot and killed by a police officer during a stand off. The King decision is especially significant since it clarifies New York law and definitively states that where an insured deliberately engages in a fight as an aggressor, any injuries he receives are the “natural and probable consequences of his acts” and thus cannot be said to have been produced by accidental means. In granting LINA’s motion, United States District Judge Michael A. Talesca, for the Western District of New York, found that Mr. King intentionally engaged in conduct that resulted in his death and thus was not entitled to benefits. Judge Talesca specifically noted that Mr. King advised his wife and friends that he intended to provoke the police into killing him; informed a hospital worker that he intended to kill a police officer; engaged in a stand off with several police officers; informed the police officers engaged in the standoff that he was armed with a .22 gun; threatened the lives of officers; invited them to shoot and kill him ; and finally, suddenly and abruptly came out of hiding, and charged a police officer with a gun pointed at the officer. In addition, Mr. King was quoted as stating prior to the day of his death that he wanted the police to kill him so that his wife and children “would be able to get some insurance money.”
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Kevin Horbatiuk To Lecture At ACI's Forum On
"Litigating Disability Insurance Claims"
In Boston, June 11 and 12, 2008
The American Conference Institute’s 11th National Advanced Forum on “Litigating Disability Insurance Claims” brings together leading litigators from the plaintiff and defense bars, medical experts, and senior insurance company representatives from across the country. This year the two day conference will take place in Boston, MA on June 11 and 12, 2008. Kevin Horbatiuk, a partner at RKT, will be participating in a panel discussion entitled, “Subjective Disorders: Practical Tips for Applying the Medical Facts in Litigation,” with Jason A. Newfield, Esq., a nationally recognized plaintiff’s counsel who specializes in representing clients with Chronic Fatigue Syndrome; Mark I. Levy, M.D., D.F.A.P.A, Neuropsychiatrist; Ronald H. Roberts, PhD., A.B.P.P., Forensic Psychologist. Kevin will present the defense perspective regarding defending disability claims based on diagnoses such as chronic fatigue syndrome, fibromyalgia and multiple sclerosis.
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Claire Rush to Lecture at Automobile Litigation Seminar, June 12, 2008
The National Business Institute will feature a full day seminar entitled. “Automobile Litigation : Strategic Issues and Answers” on June 12, 2008 at the Melville Marriott on Long Island.
Claire Rush, one of RKT’s partners, has significant experience trying complicated, high exposure cases arising out of motor vehicle accidents. Claire is noted for her very creative approaches which make effective use of experts in the areas of biomechanics, forensics and accident reconstruction. She will be lecturing on the following topics which are clearly her recognized areas of expertise, “Accident Reconstruction: When, Why and Who you can Trust,” “Experts: Finding the Right Ones, Affordability and Strategies,” and “Recognizing Auto Defect Cases and What to Do.”
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RKT Wins Summary Judgment On Appeal
In Slip And Fall Case
RKT attorneys Thomas Keane, Fern Flomenhaft and John Komar won summary judgment and dismissal of plaintiff’s Complaint in the Appellate Division, Second Department in the case of Plowden v. Stevens Partners, LLC, 2007 NY Slip Op 09010. The plaintiff, a 44 year old postal worker, claimed she was injured when she slipped and fell on an interior staircase while delivering mail in our client’s building. The plaintiff admitted at her deposition that she did not know what caused her to slip. We filed a motion to dismiss on the grounds that plaintiff could not identify any defects which caused her to fall. The lower court denied our motion based on the opposing affidavit of plaintiff’s engineer who alleged that plaintiff fell because the staircase had no handrails in violation of the Building Code and since the treads on the stairs became slippery over time. We appealed to the Appellate Division, Second Department from the lower court’s denial of our motion. In its Decision and Order handed down, the Appellate Division reversed the lower court and granted our motion for summary judgment. The court held that even assuming the Building Code was violated, the plaintiff failed to submit any evidence linking the alleged defects to her fall. The court noted that plaintiff did not testify that she ever reached for a handrail or that a slippery condition of the steps caused her to fall. The court found it would be sheer speculation for a jury to conclude that the plaintiff fell due to the alleged defects rather than a misstep or loss of balance and dismissed the case accordingly.The dismissal of this case was significant since plaintiff alleged serious back injuries including two lumbar disc herniations requiring spinal surgery which left her disabled from the Postal Service. Plaintiff’s settlement demand was 2.2 million dollars before the Appellate Division dismissed the case against our client. - - - - - - - - - - - - -
RKT Wins Directed Verdict On Grounds
Of No "Serious Injury" RKT attorney John Komar won a directed verdict and dismissal of plaintiff’s Complaint based on plaintiff’s failure to establish a "serious injury" on 10/26/07 following a two week trial in the case of Shapira v. The City of New York & Souleymane Diallo in Supreme Court, New York County. Our client, a taxi driver going west on 10th Street at its intersection with 7th Avenue, struck a police cruiser which ran a red light while allegedly responding to an emergency call. The 32 year old plaintiff, a passenger in our client’s cab, claimed her body went forward upon impact and struck the taxi’s partition. She claimed injuries including a fractured nose, deviated septum, and two herniated cervical disks that would each eventually require surgery. Her settlement demand was $500,000. After the plaintiff rested, John made a motion for a directed verdict on the grounds that the plaintiff failed to set forth sufficient evidence of a "serious injury" causally related to the accident warranting submission of the case to a jury. He argued that 1) there was no competent medical evidence admitted at trial to support plaintiff’s claim that she had a fractured nose; 2) that her deviated septum did not meet any of the criteria for "serious injury" under the New York Insurance Law; and 3) there was insufficient medical evidence to show that her two alleged herniated discs and sequelae met the threshold for a significant limitation of use of a body function or system. The Court was convinced that plaintiff failed to meet the "serious injury" threshold and therefore granted our motion for a direct verdict and dismissed plaintiff’s Complaint against our client. - - - - - - - - - - - - RKT Wins Defense Verdict In “Pedestrian Knockdown” Case
RKT attorney Christopher Mehno won a defense verdict for our client in the case of Richman v. Moisture Hacking Corp., Supreme New York Index No. 101997/1995.
Our client, a taxi driver traveling north on Eighth Avenue at its intersection with West 25th Street, allegedly struck the rear of co-defendant’s vehicle which then spun out of control and struck the plaintiff, a pedestrian crossing West 25th Street. Plaintiff claimed our client was negligent in traveling at an unsafe speed and failing to maintain a proper lookout for other traffic.
Despite our client’s unavailability to attend trial due to a medical condition, we convinced the jury that our client was not negligent and that the co-defendant’s negligence in suddenly turning left in front of the taxi was the sole proximate cause of this accident. The jury returned a verdict assigning 100% liability to the co-defendant and 0% to our client.
The 79 year old plaintiff alleged serious injuries including a fractured femur requiring ORIF including placement of an intermedullary rod and pins. She had an extended stay in the hospital and in a physical therapy rehabilitation facility and underwent a total knee replacement of her right knee. Plaintiff’s attorney asked the jury to award $1.7 Million in damages. The jury, however, rendered a total damages award of $450,000 (for which co-defendant is completely responsible in light of our defense verdict on liability).
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Celebration of RKT's 10th Year Anniversary Russo, Keane & Toner celebrated the firm's 10-Year Anniversary with a gala sunset dinner cruise of New York Harbor aboard the luxury yacht Romantica. A good time was had by all as we danced, dined and enjoyed spectacular views of lower Manhattan and the Statue of Liberty amidst perfect weather. We salute the special friends, clients and colleagues who made this wonderful evening possible and look forward to future celebrations as our firm continues to grow! Click here for pictures! - - - - - - - - - - - -
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