DeSena and Sweeney Publications

August 2009, Newsletter, Cases and Outcomes

Plaintiff used an affirmation from a doctor no longer licensed in New York in an effort to defeat our motion for Summary Judgment

The Court granted our motion in Brown v Aviles , Supreme Court, Suffolk Co (Molia, J.) for summary judgment on threshold. The court found that we sustained our burden of establishing a prima facie case of entitlement to a dismissal on threshold grounds based on Dr. Khachadurian’s medical reports and examinations finding no evidence of spasm or loss or lordosis and full range of motion on the part of the plaintiff’s spine. The plaintiff’s testimony was stressed in the motion sense it supported our position that she had not suffered a serious injury...Read Full Article

Cases dismissed on Service and Statute of Limitations Issues

The pitfalls that face plaintiff in the use of service upon the Secretary of State for a non-resident who is in an accident on a New York roadway are great. In Calloway v Wells, Supreme Court, Westchester Co. (Leibowitz, J) the court dismissed a case against our client Nakia Wells who was a resident of Pennsylvania. The plaintiff served Ms. Wells at her former address in Kissimmee Florida...Read Full Article

Landlord does not have common law duty to install radiator covers at properties where children live.

Utkan v Szula, ____ AD3rd____ (2d Dept, 2009) Slip Opinion 01794 the plaintiff alleged that an exposed radiator in the apartment owned by the defendant-landlord burned the infant plaintiff. The plaintiff attorney argued that the defendant was aware that there were children residing in the apartment. The defendant also knew that the radiators where uncovered or exposed. The plaintiff’s mother had requested that the landlord install radiator covers...Read Full Article

July 2009, Case Review / Legal Alert

No-Fault trials— MRI cases-Timing is Everything

Elke Mirabella, Esq. tried to a dismissal Universal Health Chiropractic, PC a/a/o Andy Fortune v. State Farm. The issue was whether chiropractic treatment and diagnostic testing conducted by the provider were medically necessary. A prima facie case was stipulated to at the outset of the trial. Drs. Dureja and Portnoy both testified in defense of the company based on a lack of medical necessity. The court found that the defendant met its burden of proof and therefore shifted the burden to the plaintiff to rebut the evidence. The plaintiff had requested further adjournment or continuance or in the alternative to rely on the medical records in evidence...Read Full Article

Practical Issues:

We are finding, post LMK that some provider firms, are no longer negotiating on interest in settlements. This is of particular concern since the carrier and the defense attorney for the carrier cannot require a settlement be conditioned upon a waiver of interest. This does not preclude the parties from discussing, as a full settlement, all terms of the settlement including interest payments. These issues should be addressed up front in the negotiation process so that they are properly reflected in closing papers...Read Full Article

Staff News:

Eileen Selts, a paralegal who worked with us as an intern from Suffolk Community Colleges ABA Accredited Paralegal Degree program will be join us a a full time member of the No-Fault tea, starting in August.

Maryann Cioffi, a paralegal with more than 10 years of litigation experience with Liberty Mutual’s house counsel, joined the firm.

June 2009, Case Review / Legal Alert

Petrone (violation of a leash law giving grounds for a viable action for injuries result from a domestic animal) is overturned by the Court of Appeals

The Court of Appeals issued its decision reversing the Second Department decision that allowed a dog inflicted injury case to proceed because of an alleged violation of a local leash law or ordinance and the dog’s behavior even though the dog has not displayed any prior vicious propensity. (Petrone v Fernandez, 53 AD 3rd 221, 222 (2d Dept , 2008)). Prior to the 2006 decision of the Court of Appeals in Bard v Jahnke (6 NY3d 592 [2006]), the law was well-settled in this Judicial Department that a dog owner could be held liable for negligence, including leash-law violations, that proximately caused a plaintiff's injuries, even in the absence of evidence that{**53 AD3d at 225} the dog's owner had knowledge of the animal's vicious propensities (see Scotto v Marra, 23 AD3d 543, 544 [2005]; Faller v Schwartz, 303 AD2d 624, 625 [2003]; McCullough v Maurer, 268 AD2d 569, 570 [2000]; Lisi v MRP Holdings, 238 AD2d 316, 317 [1997]; Silva v Micelli, 178 AD2d 521 [1991]). Strict liability for an animal's vicious propensities, and common-law negligence proximately causing injuries, were recognized as two separate and independent theories of liability (see McCullough v Maurer, 268 AD2d at 570).Read Full Article

March 2009 - Case Review / Legal Alert

DeLuca v Creda-An amputation case Motion granting SJ Affrimed 2009 NY SlipOp 01769

We were successful in defending DeLuca v Creda (brief and oral argument by Shawn O’Shaughnessy, Esq.) This case involved a tow truck exiting a parking lot directly into our client’s motorcycle. His passenger is the plaintiff, a Nassau County police officer. She suffered a traumatic amputation of her leg left below the knee along with fractures and a collapsed lung. Our client was traveling in the right lane of Long Beach Road. We secured a deposition of a witness who confirmed that the tow truck driver did not stop before exiting the parking lot. The tow truck operator testified that he only made a rolling stop. The client saw the tow truck in the parking lot and was in the process of passing the parking lot when he was struck by the truck...Read Full Article

Campbell v Dennis--Defendant’s Verdict

Jim Bruckner tried this case, in Suffolk County, to a defendant’s verdict. The plaintiff was struck by our client’s vehicle after she hit a puddle of water drained from a basement into the roadway. The plaintiff claimed that she was required to undergo a cervical diskectomy and fusion surgery. The case was defended on proximate cause of the alleged injuries given the plaintiff’s long history of prior neck and back injuries and problems.The plaintiff had significant prior treatment including recommendations of surgery for her neck and back. The focus of our defense was that the treatment post accident was not any different than prior to the accident. She had similar symptoms and treatment prior to the accident...Read Full Article

Swain v Kidd –Defendant’s Verdict

Chris Lanigan, Esq. tried the above mentioned case to a defendant’s verdict in Queens Supreme Court with Justice Siegel. This was Summary Jury trial. The case involved an intersection accident on Merrick Blvd. The plaintiff and her husband were traveling on Merrick Blvd. Our client had a stop sign. We presented a non-party witness who established that the plaintiff operator was speeding and ran a red light at the intersection just before the site of the accident...Read Full Article

April 2010 - Case Review /Legal Alert

Defendant’s Verdicts

Paul Felicione, Esq tried to verdict Valdez v Sibrian in Supreme Court Westchester County. This case involved a left turn accident where liability was conceded in exchange for an damages parameter of 5,000 to 75,000.00. This case was tried before Justice Loehr. The plaintiff alleged a torn ACL, medial meniscus of the left knee along with herniations at C3-4 and C5-6. Dr. Daniel Fisher (a radiologist) testified on our behalf. He opined that the tear of the ACL was pre-existing injury not casually related to the accident. The MRI films showed that the ACL tear was chronic and not acute without any evidence of swelling or edema. The testimony revealed that the plaintiff had a prior knee injury 20 years ago in a football incident. Dr. Fischer also testified that the herniations were chronic in nature and due to degeneration. They were not casually related to the accident. The jury, after 40 minutes of deliberation, rendered a defendant’s verdict.

Paul also tried to verdict Desouza v Koester, Supreme Court New York County before Justice Mayerson. This was a summary jury trial on liability only. The plaintiff was a pedestrian who was allegedly struck by the client’s vehicle on Broadway in Astoria. The plaintiff testified that due to construction in the area she exited a cab facing westbound on Broadway at a traffic light. She crossed the double yellow line and was struck by the client who was traveling eastbound on Broadway. The plaintiff testified that the point of contact occurred in the parking lane while an independent witness testified that it occurred at the double yellow line. The plaintiff’s ear was torn partially off and surgically reattached. The jury rendered a defendant’s verdict. (An offer of 30,000 had been presented and declined by the plaintiff).

We were successful in overturning a adverse decision on liability following a summary judgment motion in the Appellate Division, Second Department in Reitz v Seagate Trucking ____ AD 3d ____ 2010 Slip Op 02532 (2d Dept, march 23, 2010). It was alleged that the client struck the plaintiff in the rear. The court stated, “a rear end collision with a stopped or stopping vehicle creates a prima facia case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” (citations omitted). The court found that at the deposition of our client, the defendant successfully rebutted the inference of negligence by his testimony that the plaintiff suddenly changed lanes directly in front of his vehicle “forcing the defendant to stop suddenly” The liability motion was reversed and the issue of liability was put back in play. (This lead to an agreement prior to trial of a cap of damages at the policy limits for an agreement to concede liability. The case is presently on trial).

The Appellate Division in Noh v Duffe, _____ AD 3d ____ 2010 SlipOp 01628, denied plaintiff’s appeal on a threshold motion granted by Judge McCarty in Nassau County. The court found, that contrary to the plaintiff’s contentions, that the defendant established prima facia basis for dismissal based on the expert reports of the neurologist, orthopedist and radiologist that found that the plaintiff did not meet the definition of a serious injury as a result of the accident alleged. The court found that the “plaintiff’s subjective complaints of pain and limitation of motion were unsubstantiated by verified objective medical findings.” The plaintiff has filed a motion for permission to appeal to the Court of Appeals.

The Court dismissed Mezzapesa v Sousa, Supreme Court Nassau Court, Iannacci, J. on our motion for summary judgment on threshold. The court granted our motion finding that the plaintiff’s allegation of a disc bulge alone was not sufficient to establish a serious injury. The plaintiff was unable to explain the significant gaps in treatment between October 2004 and May 2005 (7 months), May 2005 and September 2006 (16 months), and September 2006 and October 2007 (13 months). The plaintiff did go the hospital after the accident but was released the same day. He underwent very conservative treatment following the accident. He only missed a few days from work following the accident. When he returned he worked less hours but he eventually left this job due to a conflict with his manager supposedly because he could not lift items.

January 2011, Case Review/Legal Alert

Service Matters-no automatic extension to plaintiff

While it is true that in many cases, pursuant to CPLR 306-b a plaintiff may seek permission for re-service, one must look at the circumstances for the failure to serve in the first place to determine and argue if it is permissible. We moved for dismissal in the case entitled Calloway v Wells (Westchester Co, Justice Leibowitz) 2010 NY Slip Op 09206, _____ AD 2d _____, (2d Dept, December 14, 2010)based on lack of service and expiration of the statute of limitations. The plaintiff cross moved for permission to extend her time to serve the defendant with a summons and complaint. The court granted our motion for dismissal for lack of service. The Court also denied the plaintiff’s motion for an extension of time to re-serve the client. We had opposed the extension of time since it was our position that the plaintiff had failed to demonstrate reasonable diligence in attempting service after the purchase of the index number while there was still time left on the statute of limitations. The lower court adopted our reasoning in its denial of the plaintiff’s motion. The Appellate Division, in appeal, as argued by this office, found that the plaintiff failed to demonstrate reasonable diligence in attempting service which was necessary to establish a good cause under CPLR 306-b. The Appellate Division pointed out some factors that are good to use when making an argument against an extension. The court point out the late point that the plaintiff started the action. The plaintiff “waited until the statute of limitations had nearly expired.” The Court also pointed out that the plaintiff failed to demonstrate its efforts to locate the client and did not seek an extension prior to the expiration of the statute of limitations. Instead, the plaintiff waited until the defendant made a motion to dismiss. The Court also looked at the merits of the case and said the plaintiff “failed to establish that she had a potentially meritorious case” (This was a case where the client however struck the plaintiff in the rear. The facts as we argued them demonstrated that the plaintiff did not have a reason to stop short as both the client and she were making a right turn).

Lien on the Property:

The Court granted out motion to lift a lis pendence or lien on the client’s property in the action entitled Cons v Smith. It is alleged that the client started to erect a chain link fence that strayed across the plaintiff’s property boundary. The client was given notice of it and removed the fence back to what his surveyor plotted as a property boundary. Despite the removal the plaintiff brought suit and served on the County Clerk a notice of pendence or lis pendence on the property. This is a notice to all who may have an interest in the property that there is a potential claim to the a part or all of the property. It effectively makes it difficulty if not impossible to transfer the property or in this case, for the client, re-finance the property. Strategically, it is a means to put pressure on the party since the lien effects the property value. Our motion was granted and the lis pendence on the title was removed since we demonstrated that whatever was left of the encroachment was so minor as to be deemed deminimus by the court.

Location, Location, Location

The location or venue of the case and its trial is as important in litigation as location is in real estate. Through the use of good research into public records we have been able to object to plaintiff’s selection of venue or place of trial in a number of case. We look at such things as utility records, voter registration , DMV records, judgments and other court records at the outset of a case while review it for our appearance and answer on behalf of the client. In various cases the plaintiff attorney has selected a venue that may be more convenient for them or perceived as more favorable to one party versus another. The plaintiff attorney will use the address for the client that appears on the police report. Sometimes, this address is 1-2 years old. We have been able to secure agreements to change venue to a proper venue or make motions to change venue.

A good example of the analysis process arose in Astillero v Abramov. This case was started in New York County. This county is a unified trial county. The client operator was Asia Abramov. Ms. Abramov had married Mr. Abramov at or near the time of the accident. She did not change her license from her NYC apartment to her home with her husband in Queens. (Vehicle and Traffic Law requires a driver to change their license with the Department of Motor Vehicles within 10 days of the change. Failure to change the address allows for service, without objection , on the old address. See, Stillman v City of New York, 39 AD 3d 301 (1str Dept, 2007). Her failure to change her license prevented us from objecting to service at her address listed, for NYC, on her license. It did not prevent us from arguing for a change of venue. The court granted our motion to the extent that the venue was transferred from New York County to Queens County.