Attorney Articles
A Pandemic in the Making
March 5, 2020 - CLM Digital Edition
Mat Ross is a member of Wilson Elser’s Executive Committee and a co-chair of the firm’s National Trial Team. He is one of Wilson Elser’s senior New York trial partners who has extensive experience in state and federal courts and increasingly is brought in to serve as trial counsel on potentially high-exposure cases previously handled by other firms for insureds, insurers and excess insurers. Mat has tried approximately 125 cases and taken approximately 45 verdicts. He focuses on the defense of construction accident claims under New York Labor Law and other high-exposure premises liability and premises security claims. Mat has a growing coverage practice representing insurers in connection with a variety of specialty risk insurance policies. In addition, he has experience defending professional liability, toxic tort, employment and police/municipal liability matters.
In his areas of practice, Mat frequently lectures to domestic and London insurers, brokers and their insureds on topics such as “Overview of Construction/Labor Law Claims and Defenses,” “Defending Economic Loss Claims,” “Underwriting Disability Policies for Professional Athletes,” “Event Cancellation/Contingency” and “Overview of Product Contamination Recalls.” As a value-added service, Mat also presents frequently to construction site superintendents, safety personnel and others working in the field on strengthening risk management.
Prior to joining Wilson Elser, Mat served as an officer in the U.S. Army Judge Advocate General’s Corps at Fort Eustis, Virginia, where he was chief of the military justice branch as a criminal prosecutor and handled cases in the labor/employment law branch.
Construction Litigation
In the construction area, Mat has represented companies and municipal agencies in all phases of litigation, from inception through trial and appeal. He has tried construction cases in Kings (Brooklyn), Queens, Bronx, New York (Manhattan), Nassau, Suffolk and Albany counties on issues of both liability and damages. Mat has handled cases under insurance wrap-up programs for various construction projects, as well as more traditional scenarios in which contractors are responsible for carrying their own insurance.
Insurance Coverage
Mat serves as coverage counsel to specialty risk insurers in connection with claims under policies for event cancellation, contingency, non-appearance, high-limit disability for professional athletes and wealthy individuals, product recall and accidental product contamination, kidnap and ransom, and professional liability such as for design professionals and construction managers. In this regard, he has written coverage opinions and provided direct representation or monitoring services in any ensuing litigation.
Mat Ross is a member of Wilson Elser’s Executive Committee and a co-chair of the firm’s National Trial Team. He is one of Wilson Elser’s senior New York trial partners who has extensive experience in state and federal courts and increasingly is brought in to serve as trial counsel on potentially high-exposure cases previously handled by other firms for insureds, insurers and excess insurers. Mat has tried approximately 125 cases and taken approximately 45 verdicts. He focuses on the defense of construction accident claims under New York Labor Law and other high-exposure premises liability and premises security claims. Mat has a growing coverage practice representing insurers in connection with a variety of specialty risk insurance policies. In addition, he has experience defending professional liability, toxic tort, employment and police/municipal liability matters.
In his areas of practice, Mat frequently lectures to domestic and London insurers, brokers and their insureds on topics such as “Overview of Construction/Labor Law Claims and Defenses,” “Defending Economic Loss Claims,” “Underwriting Disability Policies for Professional Athletes,” “Event Cancellation/Contingency” and “Overview of Product Contamination Recalls.” As a value-added service, Mat also presents frequently to construction site superintendents, safety personnel and others working in the field on strengthening risk management.
Prior to joining Wilson Elser, Mat served as an officer in the U.S. Army Judge Advocate General’s Corps at Fort Eustis, Virginia, where he was chief of the military justice branch as a criminal prosecutor and handled cases in the labor/employment law branch.
Mathew Ross (Partner-White Plains, NY) and Lauren Zink (Partner-New York, NY) obtained a pre-answer dismissal of a 106-page complaint in the U.S. District Court, Southern District of New York, in which the plaintiff alleged a litany of federal and New York state claims against Wilson Elser’s clients, a psychology group, and its psychologist employee, along with various other defendants. Allegations included RICO violations, deprivation of procedural due process, equal protection violations, conspiracy to interfere with civil rights, fraud/deceit, intentional/negligent infliction of emotional distress, professional malpractice, negligent hiring, retention, and supervision, and spoliation of evidence.
In this federal matter, the pro se plaintiff – an attorney –brought sweeping claims arising out of pending New York Family Court custody proceedings, alleging that a broad group of defendants, including our clients, the sitting Family Court judge, the plaintiff’s ex-wife and her counsel, court-appointed representatives, government agencies, and others engaged in a years-long scheme to violate his constitutional rights and interfere with his relationship with his daughter. As to our clients, the plaintiff alleged negligent hiring and supervision, claiming the psychology group’s employee, who was hired by the plaintiff and his wife together for a period between 2019 and 2020 to treat their daughter, falsified reports and records, triggering an investigation that led to the suspension of his custodial rights.
Prior to answering, Mat and Lauren filed a pre-answer motion seeking to dismiss the entirety of the plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing for dismissal on multiple grounds. They maintained that the plaintiff’s federal claims against the client were barred pursuant to the Younger abstention and Rooker-Feldman doctrines. They further argued that the plaintiff’s New York State claims were subject to dismissal because the complaint failed to state a claim upon which relief could be granted, coupled with the fact that the plaintiff’s New York State claims were time-barred pursuant to the respective statute of limitations.
In a 30-page decision, the court granted Mat and Lauren’s motion in full, agreeing that the Younger abstention doctrine barred the plaintiff’s federal claims because they interfered with ongoing state custody proceedings, and that the plaintiff’s conclusory allegations of bad faith were insufficient to overcome that bar. The court also found the claims precluded by the Rooker-Feldman doctrine, which prohibits federal review of state court custody determinations. With respect to the plaintiff’s RICO and Section 1985(3) claims, the court dismissed these claims on the basis that they were conclusory, that the plaintiff did not adequately allege that any of the defendants are state actors, and that the plaintiff otherwise failed to sufficiently plead facts showing a plausible entitlement to relief. Finally, the judge held that the court declined to exercise supplemental jurisdiction over the plaintiff’s state law claims, given that the anchoring federal claims were dismissed. As such, the judge directed the Clerk to enter judgment dismissing the action for lack of subject matter jurisdiction.
Mathew P. Ross and Lauren M. Zink
Mathew Ross (Partner-White Plains) and David Umansky (Associate -New York, NY), assisted by paralegal Martha Chavez and firm interns Jessica Pizzi and Francesca Rocha, secured an outstanding result in Bronx Supreme Court, New York, on behalf of a construction company client after a nearly four-week trial featuring 13 witnesses, including nine experts. The plaintiff, a union bricklayer, alleged that he fell from one scaffold level to the level below, sustaining significant injuries, and was taken to the hospital via ambulance. He had a two-level cervical fusion surgery, a single-level lumbar fusion surgery, and the right ankle injury required no surgery. During the trial, the jury found that while the plaintiff did fall from a bicycle scaffold to the scaffold below, Mat and David’s proximate cause arguments, asserting that the fall was not the proximate cause of the plaintiff’s cervical fusion or ankle injuries, were compelling, and limited proximate cause to the lumbar spine injury only. Despite a $13.5 million demand at the start of trial and plaintiff’s $22 million closing summation request, the jury returned a verdict of $759,800; a post-closing high-low agreement was agreed upon, eliminating appeal risk and resulting in $1 million less than what was offered to the plaintiff pre-closings.
Mathew P. Ross and David I. Umansky
Mathew Ross (Partner-White Plains) and Patrick Lawless (Partner-New York) obtained an excellent unanimous decision from the Appellate Division, Second Department on a difficult construction case. Mat tried the case for a large city and its School Construction Authority in the latter part of 2019 and obtained a unanimous jury defense verdict after the plaintiff turned down a sizeable offer to settle the case while the jury was deliberating. The plaintiff appealed the final judgment, which included the earlier denial of his summary judgment motions and motion to reargue that we successfully opposed, as well as the jury verdict. Pat handled the appeal with Mat and argued the appeal. This great teamwork sets forth good case law on the industrial code sections that were identified and upholds the jury’s verdict against a well-known plaintiff’s firm.
Mathew P. Ross and Patrick J. Lawless