G&S Obtains Dismissal of Med-Mal Wrongful Death Action for Lack of Jurisdiction

Plaintiff brought wrongful death action alleging medical malpractice of our client, an internist, based on his alleged failure to detect and treat the plaintiff’s brain and lung cancer.

We moved based on our defense our client was never properly served with process at her actual residence or place of business.  Initial service was made at a hospital where she had formerly worked and later served at a condominium she owned, but had always leased to a tenant.   Plaintiff never effectively refuted our claim of lack of service, and, in fact, cross-moved for our client’s proper address for re-service.  The issue of service was of critical importance because the statute of limitations had expired. Continue reading

Second Department Affirms Dismissal of Ice Skating Rink Case – Water Does not Make Ice More Slippery

The plaintiff, an adult male, tried ice skating for the first time on a Spring day at our client’s ice rink.  He stepped out on the ice and while still holding on to the boards took a second step and fell backwards onto his posterior breaking his ankle which required surgery.    He alleged that his skate slipped because he had stepped onto a wet spot on the ice and also that he was given the wrong size skates.

The claim that wet ice caused someone to fall is a claim we have seen over the years.  This time we decided to hire an expert to test the claim.  Our expert did coefficient testing on wet ice and dry ice before and after cleaning with a Zamboni and scientifically determined there was no significant difference between the slipperiness of wet and dry ice. Continue reading

Post Trial Motion to Dismiss Granted Against Dental Group – No Vicarious Liability

In this case for dental malpractice, it was alleged that our client (dental group) was vicariously liable for  improper bridge work performed by a treating dentist.  Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

After a trial, the jury rendered a verdict for which our client was found to be 50% liable.

We made a post-trial motion, which the judge granted vacating the verdict, on the basis that plaintiff had failed to establish that dental group was vicariously responsible for the acts or omissions of the treating dentist, either as an employee or under an agency theory.  Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group.  Therefore, the judge wholly dismissed the action against our client.

G&S Obtains Dismissal of Skating Rink Case Based on Assumption of the Risk – Man Spinning Woman on Ice Against her Will was not Reckless Conduct so as to Fall Outside Assumption of Risk Doctrine

Plaintiff and her friend were ice skating when she observed a man skating in a dangerous manner skating the wrong direction and pushing other people on the rink. They continued to skate when this individual stopped the conduct.  When after a half hour on the ice they saw this individual swinging a woman around him on the ice against her will they decided to leave the ice.  As plaintiff was skating by the couple their hands released sending the male “flying” into her knocking her down and causing her to break her wrist.

We argued that that being knocked to the ice by another skater is a risk that ice skaters assume when they agree to participate in the sport of ice skating. Plaintiff was an experienced skater and continued to skate despite being aware the individual who knocked her down had skated inappropriately in a manner she considered dangerous.  We argued that the exception to this doctrine, where the person is injured when struck by someone skating “recklessly” did not apply, because the conduct describe was not reckless and occurred too suddenly for the rink to have been able to prevent.  We reviewed for the court historic examples of reckless conduct and argued that a man and woman holding hands and skating in circles did not approach the standard for recklessness.  We also argued that  the accident occurred so suddenly and precipitously that it could not have been prevented or anticipated by the rink.  Continue reading

G&S Obtains Dismissal of Wrongful Death Claim on Behalf of New York Municipal Defendants – No Special Duty

Lawrence S. Wasserman and Nicholas J. Ajello recently obtained dismissal of a wrongful death claim on behalf of The City of New York, New York City Police Department, New York City Fire Department and the City of New York Department of Health and Mental Hygiene in Supreme Court, Queens County.

The case, Lois M. Rosenblatt v. The City of New York, et. al. (Index No. 5798/2013), involved plaintiff’s-decedent, a then 96-year old female who was under the care of a private home health aide.  When the decedent started choking on food fed to her by the home health aide, the aid called an ambulance and was provided instructions on what to do, but by the time the ambulance arrived, the decedent had become anoxic and fell into a persistence vegetative state before ultimately passing away. Continue reading

Ed Dondes Obtains Trial Verdict in Case Involving a Fall Down Stairs Allegedly Due to an Improper Handrail– 2017

Plaintiff was visiting our client when she fell down an interior stairway. Plaintiff contended that the stairway that had been replaced five years earlier by an unlicensed contractor, caused her accident because the contractor negligently failed to comply with provisions of the code that require handrails to have at least 1 ½ inches of finger space. The plaintiff asserted that because part of the molding ran up against the handrail, there was an absence of space to grab for several inches. The plaintiff maintained that as a result, she was caused to fall. Plaintiff put on the stand the expert engineer Nicholas Belizzi, PE.  We argued that the stairs were safe and that there had been no problems with the stairs or handrail in the 5 years since being installed.  We also contended that the plaintiff had regularly visited the premises, and had been on the stairs many times and argued that the condition of handrail would not have caused a fall.  Upon submission to the jury, it returned a defense verdict on behalf of our client.

Gordon and Silber Obtains Rare Forum Non Conveniens Dismissal in New Jersey Asbestos Case

Lawrence S. Wasserman and Russell L. Porter recently obtained a dismissal of cosmetic-talc related asbestos case in the Superior Court of New Jersey, Middlesex County. We are unaware of any other similar motions which have obtained a similar dismissal in the venue.

The case, Bell v. American International Industries, et. al., Docket Number: MID-L-6527-15AS, involved claims made by a lifelong resident of North Carolina that she was caused to develop mesothelioma after being exposed to asbestos contained in our client’s cosmetic talc product. The plaintiff claimed she used this product during her longtime employment as a hairdresser in North Carolina. Continue reading

Judge Grants G&S’ Post-Trial Motion Dismissing Action Against Dental Group Based Upon Plaintiff’s Failure To Prove Treating Dentist Was Employee And Not An Independent Contractor

In this case for dental malpractice handled by Steve Mutz, it was alleged that our client (dental group) was vicariously liable for improper bridge work performed by a treating dentist.  Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

The jury rendered a verdict for which our client was found to be 50% liable.

In deciding our post-trial motion, the judge determined that there was no evidence of the dental group’s vicarious responsibility for the acts or omissions of the treating dentist, either as an employee or under an agency theory. Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group.  Therefore, the judge wholly dismissed the action against our client.

The Court of Appeals Will Review the Second Department’s Expansion of Liability of Commercial Owners and Managing Agents for the Negligence of their Independent Contractors

In Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854 (2d Dep’t August 24, 2016), the Second Department greatly expanded liability of commercial property owners and managing agents for the negligence of their independent contractors.  It was not clear from the one page decision whether the Court was aware of the far reaching consequences of what it had done.

Recently, the Second Department granted a motion for leave to appeal.  The matter is now on its way to the Court of Appeals. Continue reading

G&S Obtains Defense Verdict for OBGYN Clients

A pregnant woman close to full term came to the emergency room for the third time in a week with complaints of headache.  While in the ER she had what was believed to be a seizure. Our doctors were called in and treated her under the presumption that she had eclampsia, a life threatening condition for the mother and baby.  Our clients stabilized her and delivered a healthy boy. They admitted her to the ICU and ordered a work-up including head CT scan.
A few hours later she had a hemorrhage and eventually died.  It turned out she had hydrocephalus which could have been picked up with an MRI or CT scan and treated.

The ER doctors who saw her on the 3 occasions were found to be negligent for not getting scans. Plaintiff claimed our clients should have done it too. Ed Dondes  argued on behalf of our clients that the presumption that she had eclampsia was proper and treatment was stabilization and delivery with the order of a head scan after delivery, which was appropriate given the emergent  circumstances.