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Another Defense Verdict on Causation in the Bronx for CK Law!
Richard Calabrese obtained a defense verdict following a week and half
trial in the Bronx in a premises liability case. Our client operated a
grocery store in the Parkchester section of the Bronx. Plaintiff, a customer
tripped and fell over a weather mat. The incident was caught on video.
Though plaintiff prevailed on the issue of liability, with the jury finding
our client negligent and the proximate cause of the accident, we prevailed
on our causation defenses. Plaintiff, 55 at the time, sustained medial
meniscal tears with arthroscopic surgery thereafter with plaintiff’s
testifying surgeon telling the jury plaintiff needed a total right knee
replacement as a result. Through the introduction of post-accident films
only and expert testimony from a radiologist, the jury found the fall
was not the proximate cause of the knee injury, but related to age and
weight related pre-exiting osteoarthritis. Defense Verdict!
(Supreme Court, Bronx County, September 2023)
Owner and General Contractor Granted Dismissal on Labor Law §240(1) Claim
Plaintiff, a demolition worker, claimed serious back injuries resulting
in surgery as a result of a fall while working on a large ramp with heavy
debris containers. Plaintiff alleged violations of Labor Law §240(1)
and §200 against our client Through use of co-worker testimony and
plaintiff’s statements at the scene, we established in our dispositive
motion that the owner and general contractor were entitled to judgment
as a matter of law. The Court confirmed that the Scaffold Law was not
violated on account of no real evidence of a significant elevation accident,
and confirmed that the site safety law (section 200) was not violated
on account of the fact that there no evidence of a dangerous condition
inherent in the property itself, and on account of evidence showing our
clients exercised nothing more than general supervisory authority over
the injury-producing work. Motion Granted!
(Supreme Court, Queens County, August 2023)
Dismissal of Labor Law Claims Upheld on Appeal.
The Appellate Division, Second Department upheld the lower Court’s
dismissal of Labor Law §240(1), §241(6), and §200 claims
against our client. Plaintiff was hit by a falling pipe. Our office represented
an entity that was offered the General Contractor position, filed the
permit as the General Contractor, but was never granted the job. We prevailed
on motion arguing that our client never exercised the requisite supervision
and control required to trigger liability under the statutes. Plaintiff
argued that our witness was lying and alleged that one of our employees,
who happened to work for a subcontractor on the job, proved this. The
Court affirmed the dismissal and found that plaintiff’s assertion
that our witness was lying was insufficient to raise an issue of fact.
(Appellate Division, Second Department, August 2023)
Defense Verdict on Causation for David Kluepfel in Bronx County
Plaintiff (48) claimed to have sustained a permanent traumatic brain injury
and cervical herniations that resulted in cervical laminectomy and fusion
surgery when a ceiling collapsed in her bathroom. We represented the defendant,
Bronx building owner, and argued that the case was a total exaggeration
– from the description of the incident to the claimed injuries,
none of which were sustained in the incident. Through aggressive cross-examination
of plaintiff’s doctors and witnesses and through the testimony we
attacked causation. We established that plaintiff did not sustain trauma
to her head, neck, or back, and that there was no objective evidence of
any head or brain injury whatsoever. Plaintiff’s claimed neck and
back injuries were the result of pre-existing, degenerative conditions
throughout her spine.
In the end, while the jury found our client was negligent, it agreed that
our client's negligence was not a cause of plaintiff's claimed
injuries. The Bronx jury returned a defense verdict on causation!
(Supreme Court, Bronx County; May 2023)
Counterclaims Dismissed against Client Driver via Summary Judgment Motion
Plaintiff and his wife were seriously injured in a significant two-car
accident, when an SUV made a left tun front of their vehicle. We represented
plaintiff on the counterclaims asserted by defendant, as the driver of
the host vehicle. His wife’s injuries consisted of multiple fractured
ribs, broken teeth, and numerous cervical and lumbar herniations. On dispositive
motion seeking to dismiss the counterclaims, we successfully argued that
the SUV’s left turn was sudden and without warning, leaving our
client with no time to react. This was supported by the subpoenaed testimony
of an independent non-party witness, who we located via an investigator,
stating that the driver of the offending SUV was unable to view oncoming
traffic prior to attempting a left-hand turn into an parking lot. Our
motion was further supported by a certified police report and strong testimony
from our client.
The Court found that , we successfully satisfied our burden on motion that
our client was not negligent, and defendant failed to raise a trial issue
of fact. Motion granted! All counterclaims against our client were dismissed!
(Suffolk County, Supreme Court, March 2023)
Defense Verdict in Premises Case
Following trial in Supreme Court, Queens County, Richard Calabrese obtained
a defense verdict on a premises case. Our client is a parking garage operator
located in Jackson Heights, Queens. Plaintiff testified that upon returning
to the parking lot to retrieve his vehicle, the lot and sliding gate was
closed, the lights shut, and the parking attended gone. Plaintiff then
attempted to open the sliding gate himself when it fell onto him, crushing
him and fracturing his leg and injuring his shoulder. At trial, we produced
employment records, the parking garage owner, and the parking lot attendant
working that evening who testified no such incident transpired, nor did
defendants have any notice of any defect with the gate. Following deliberations
the jury found that plaintiff did not have an accident involving the gate
at our client’s property.
(Supreme Court, Queens County, March 2023)
Property Owner Granted Summary Judgement
In trip and fall case occurring on a walkway in our client’s parking
lot, we prevailed on our motion for summary judgment dismissing all claims
and cross-claims against the property owner. Through testimony and documentary
records we established that our client was an out-of-possession landlord;
that our client’s one time repair to the walkway several years prior
was not a course of conduct counter to lease terms with tenant in possession
(co-defendant). The Court agreed we met out prima facia burden. Plaintiff
failed to raise a trial issue of fact as to the landlord’s obligation.
Case dismissed against property owner!
(Suffolk County, Supreme Court, January 2023)
All Claims Dismissed Against Shopping Center Owner
In a very unfortunate incident in our client’s shopping center parking
lot, a highly intoxicated man, swearing under oath to having been specifically
retained to serve as security for the shopping center by our client’s
principal, ran over the 14-year-old plaintiff while he was skateboarding.
The infant plaintiff sustained severe injuries including multiple skull
and facial fractures with a traumatic brain injury with the need to be
placed in a medically induced coma for nearly three weeks; a collapsed
lung; bilateral clavicle fractures; multiple rib fractures; bilateral
hip fractures; bilateral comminuted displaced femur fractures; tear of
the colon; the need to undergo seven emergency surgeries; the development
of a pulmonary embolism; and resulting PTSD, bipolar disorder, anxiety,
and panic attacks.
The intoxicated driver was a homeless man in the neighborhood well-known
to local residents to frequent and live behind our client’s commercial
property, among others. It was asserted he was in the course of his employment
when the incident occurred, which was vehemently denied by our clients.
The claims against our client, in pertinent part, included; negligent hiring/retention
of services of the driver, failure to provide security at the premises,
and failing to take reasonable measures to prevent the foreseeable criminal
act of a third-party.
We successfully satisfied our burden on summary judgment motion, supported
by party and extensive non-party testimony, certified police records,
photographs, and voluminous citation to the record evidence that, among
other things; 1) our clients had no connection to the vehicle the intoxicated
man was driving; 2) he was not under the owner’s employ, nor did
the owner “retain his services” asking him to work security
(we also argued that even if the Court were to find a question of fact
as to any relationship between the operator and the property owner, that
the drunkard’s actions that evening were so far beyond the scope
of employment that no liability could attach), and; 3) the owner had no
knowledge as to the operator’s violent propensities, or any similar
prior acts and therefore this was not a foreseeable criminal act our client
could of or should have guarded against. Plaintiff failed to raise a question
of a material fact for a jury to decide. Motion granted! All claims against
the property owner were dismissed.
(Nassau County, Supreme Court, November 2022)
Defense Verdict in Bronx County Labor Law Trial Affirmed on Appeal!
The plaintiff, a window installer, alleged severe knee injuries as the
result of tripping over large piles of construction debris at a new building
under construction in New York City. We represented the owner and general
contractor. In support of his Labor Law 241(6) cause of action, plaintiff
claimed the defendants violated Industrial Code 23-1.7 (e) pertaining
to tripping hazards at work sites. Plaintiff alleged severe injuries to
his knee, including tears that required arthroscopic surgery. He underwent
a partial knee replacement, then a total knee replacement surgery. Plaintiff
claimed he was permanently disabled as a result of his injuries, and sought
a multi-million dollar damages award for his pain and suffering, as well
as for past and future lost wages and medical expenses. Plaintiff presented
testimony from his numerous treating doctors and surgeons, all of whom
testified that his knee injuries were caused by the accident leaving plaintiff
permanently disabled and in need of lifetime medical treatment. Through
aggressive cross-examination of plaintiff’s doctors and experts,
and through testimony of experts on behalf of the defense, we elicited
evidence that plaintiff’s knee condition and surgeries were the
result of a pre-existing osteoarthritic condition in his knee. After weeks
of trial testimony, the jury returned a Defense Verdict - finding that
plaintiff’s injuries were not caused by the accident.
(Bronx Supreme Court, February 2020).
Plaintiff subsequently appealed the verdict arguing, among other things,
that the trial court improperly denied plaintiff’s motion to redact
portions of the hospital records admitted into evidence, namely the history
portion of the initial record that described how his knee was injured.
The Appellate Division, First Department, denied plaintiff’s appeal
finding that the trial court properly denied plaintiff’s belated,
mid-trial motion, and that he waived his hearsay objections when he presented
the records himself and relied upon the documents to support his case
in chief. Defense Verdict Affirmed! (February 2022)
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