Associate, Rebecca Moulton recently obtained a favorable decision from the Appellate Division Second Department in the case of Lombardi v. City of New York, et al. The plaintiff, James Lombardi was seriously injured in an accident on March 21, 2013 while working as a Foreman for the New York Paving Company which was engaged as a contractor by the Brooklyn Union Gas Company to remove metal roadway plates and restore the roadway at East 17th Street between Avenue M and Cedar Street in Brooklyn, New York. The plaintiff was seriously injured when one of the metal plates which was used to cover an excavated trench in the roadway suddenly flipped up into the air while in the process of being dragged with a chain and dump truck along the roadway as the result of becoming snagged on the excavation and eventually landing on back of plaintiff’s legs causing him to sustain a Grade III open fracture of the right tibia and fibula requiring surgery and intramedullary tibial rodding with interlocking screws and skin graft; crush injury of right leg/ankle; compartment syndrome of the right foot and right leg; post-traumatic stress disorder; fractures to the first and second toes of the right foot; traumatic neuropathy, lumbar radiculopathy; and permanent scarring of the right thigh, right knee. Plaintiff had undergone at least ten (10) surgical procedures concerning his injuries. There was a significant economic component to the case as plaintiff was claiming the inability to work in the future as well claims for future medical care and treatment.

Plaintiff brought claims for violations of Labor Law §240(1), 241(6), 200 and common law negligence and against our clients, The Brooklyn Union Gas Company and the City of New York. In response to substantive motion practice on behalf of defendants, the lower Court granted defendants motion for summary judgment on plaintiff’s Labor Law §241(6) claims but denied defendants’ motion pursuant to Labor Law §240(1), 200 and common-law negligence. On appeal, the Appellate Division dismissed plaintiff’s Labor Law 240(1) cause of action finding that the accident did not involve an elevation-related hazard and dismissed plaintiff’s Labor Law §200 and common-in law negligence claims as the defendants did not direct or supervisor the manner and method of the work. The Court also upheld the grant of summary judgment on plaintiff’s Labor Law §241(6) claim as the Industrial Code Sections relied upon by plaintiff were not applicable to the facts and circumstances of the accident.

In October 2019, partner Paul Lawless obtained a defense verdict in Lee v. Penny, et al. in Supreme Court, Queens County. The plaintiff, a 68-year-old female passenger, was struck in the rear in heavy traffic. Photos showed scratches to the rear bumper. The plaintiff underwent a cervical fusion at C5-C6. She claimed the impact was heavy and denied a prior injury to her neck. However, investigation revealed that she had a prior accident and treatment 12 years earlier. Plaintiff’s medical expert examined plaintiff only once. He testified that the injury and subsequent surgery were caused by the accident and she would need another surgery within 10 years. On cross examination he conceded that he was retained by her lawyer as a medical consultant and did not treat her. Defendant radiologist and neurosurgeon reviewed the presurgical MRI of the cervical spine and opined there was no indication of trauma to the spine. After less than 30 minutes of deliberating, the jury found that the plaintiff was not entitled to an award. The pre-trial settlement offer was $120,000. Plaintiff’s attorney asked the jury for an award of over $1,000,000. In speaking with jurors afterward they said the photos of the vehicles adversely affected the credibility of the plaintiff and, along with the defense medical testimony, they felt the injury was likely pre-existing.

In July 2019 partner Paul Lawless obtained a defense verdict on liability in Supreme Court, Queens County on Choi v. Planet Waste Services. In this case the plaintiff claimed his vehicle was rear ended by the defendant’s Garbage Truck while stopped in traffic on an exit ramp on the Brooklyn Queens Expressway. His alleged injuries included surgeries to the Cervical Spine, Lumbar Spine and Left Shoulder. The pre-trial settlement demand was $750,000. The plaintiff’s direct testimony on trial was that he merged from the right lane of the BQE onto the exit ramp in front of the defendant who was driving a commercial garbage truck. The plaintiff further testified that he was stopped for 3 seconds when he was struck from behind by the defendant’s truck and pushed one car length on the exit ramp. On cross examination of the plaintiff Paul attacked the plaintiff’s credibility and pointed out to the jury many inconsistencies between the plaintiff’s trial testimony and his deposition testimony. On cross examination Paul was also able to elicit testimony from the plaintiff that he was exiting the BQE due to heavy traffic and that he was employed in sales and had several sales call to make on the date of the accident. On the defense case Paul presented the defendant truck driver. The defendant driver testified that he was on the exit ramp when the plaintiff vehicle cut him off coming from the through lanes of the BQE and then came to a sudden stop in front of the garbage truck thus causing the accident.

After summations the jury took only 40 minutes to render a verdict finding that the defendant was free from fault for the happening of the accident.

In Trotman v. Verizon Communications, Inc., we were successful in defending plaintiff’s appeal of the Court’s grant of summary judgment to our client, Verizon Communications. In this case, the plaintiff, Lincoln Trotman was a fleet mechanic employed by a non-party, P.M. Saavy, which contracted with Verizon to repair their vehicles. Plaintiff was in the process of working on a vehicle whose beacon strobe light was not functioning. The light was located on top of the van and while climbing onto the hood of the van to access the roof in order to replace the light bulbs, plaintiff lost his footing and fell to the ground sustaining injuries. Plaintiff commenced an action against Verizon claiming a violation of Labor Law §§240(1), 200 and negligence. In upholding the lower Court’s grant of summary judgment to defendant, Verizon, the Appellate Division Second Department found that plaintiff was engaged in routine maintenance done outside the context of construction work and therefore Labor Law §240(1) was not applicable. Plaintiff attempted to argue that the accident occurred in the context of a larger project which encompassed activity protected under the statute. Plaintiff’s claims under Labor Law §200 and negligence were also dismissed as defendant did not control the manner and method of the work.

In Igneri v. Triumph Construction, we successfully defended plaintiff’s appeal from an order of the Supreme Court which granted summary judgment to our clients, Keyspan Energy Corporation and the Brooklyn Union Gas Company d/b/a National Grid NY. Plaintiff tripped and fell as the result of a hole in the surface of a crosswalk at the intersection of Joralemon Street and Court Street in Brooklyn. The lower court granted summary judgment to our client, who demonstrated that they did not perform any work at the location as well as the other defendants, which was affirmed by the Appellate Division Second Department finding that plaintiff had not rebutted defendants’ prima facie showing of entitlement to summary judgment. Plaintiff attempted to argue that defendants needed to demonstrate which entity had actually performed the work as opposed to just demonstrating that they had not performed work in the area.

Congratulations to our Appellate Counsel, Anton Piotroski for a successful appeal in the case of Bailey v. Vitrano, et al. In this appeal at issue was the negligence of our clients N.C. Vitrano, the operator of a flatbed truck owned by Tariq Auto Service, Inc., which was involved in an accident where plaintiff was operating a box truck in the center lane of the Long Island Expressway behind the defendant/Appellant, Vitrano. Vitrano was caused to apply his brakes due to a vehicle that stopped in front of him as the result of a jack-knifed tractor-trailer in the roadway. Plaintiff in attempting to avoid the Vitrano vehicle steered to the left and crossed over the left lane and the HOV lane where he proceeded to strike the median. Immediately after striking the median, plaintiff’s vehicle was struck by another vehicle being operated by the defendant/respondent, Diane Arutt who was traveling in the HOV lane. Arutt and Vitrano both moved for summary judgment in Supreme Kings with the Court granting Arutt’s motion and denying the motion made on behalf of Vitrano/Tariq. Despite there being a factual issue about whether plaintiff’s vehicle struck the Vitrano vehicle before veering off into the median, the Appellate Division Second Department reversed the lower Court decision and found that our client was not negligent in the happening of this accident. The Court also affirmed the lower Court’s decision that the defendant Arutt was faced with an emergency situation and thus not responsible for the accident.

Congratulations to our partner, Richard Koehler who recently obtained a defense verdict in Kings County Supreme Court in the case of Janet Jamison-Cox v. Citv of New York, et al. In this case, plaintiff claimed that she tripped and fell as the result of a roadway defect that existed across the street from her home on Waverly Avenue in Brooklyn causing her to sustain a bimalleolar fracture which resulted in an ORIF surgical procedure. Plaintiff further claimed that the defect was created by KeySpan/National Grid and that their contractor, New York Paving failed to properly restore the roadway. Plaintiff produced two non-party witnesses who claimed to have observed the utility working in the roadway at the accident location. After cross-examining these witnesses as to their observations and credibility, Mr. Koehler was able to introduce google map photographs which demonstrated that the defect existed in the roadway prior to National Grid performing its work as well as photographs which evidenced gas work occurring on the sidewalk as opposed to the roadway. The Court directed a verdict in favor of our client, New York Paving and the jury rendered a defense verdict in favor of our client KeySpan/National Grid finding that they did not cause the defect at issue.

Congratulations to our appellate counsel, Anton Piotroski who successfully prosecuted an appeal of the denial of summary judgment to defendant in Deitrick v. Long Island Power Authority, et al. resulting in a dismissal of plaintiff’s action against our client, KeySpan Gas East Corporation. The case involved claims for personal injuries and property damage resulting from a gas explosion that occurred during Hurricane Sandy when a tree uprooted in the front yard of plaintiff’s neighbor’s house disturbing the natural gas service line. Gas escaped from the line and accumulated in the neighbor’s house causing an explosion sending debris flying into plaintiff’s house next door causing injuries and property damage. The Appellate Division Second Department reversed the lower Court’s denial of summary judgment finding that defendant/appellant had made a prima facie showing that it was not negligent in the installation and maintenance of the gas line and that plaintiff/respondent had not raised a triable issue of fact.