Danielle Tauber (Partner-White Plains, NY) and Christin Brown (Partner-White Plains, NY) secured a summary judgment on liability on behalf of a building tenant & grocery store in the New York State Supreme Court, New York County, before the Honorable James Cylnes.

Plaintiff asserted a personal injury action sounding in New York Labor Law 200, 240(1) and 241(6); he alleged that he sustained injuries when his section ladder malfunctioned, and he fell approximately 25 feet to the ground. Plaintiff alleged to have sustained injuries to the right shoulder, cervical and lumbar spine. Plaintiff underwent a right shoulder surgery and alleged a need for a future cervical fusion. Plaintiffs demanded $3 million dollars.
 
The team filed a motion for summary judgment, arguing that Plaintiff’s work on the date of the accident was routine maintenance, not construction work. In support of their argument, they established that this routine maintenance – cleaning of a water tower – did not require specialized tools or equipment, and there was no ongoing construction project at the location. Therefore, Plaintiff’s work is not a protected activity and does not constitute a repair under the statute. Further, the team argued that even if the statute applies, Plaintiff’s actions were the sole proximate cause of the alleged accident because the plaintiff was warned of the unsafe condition of using a section ladder. Further, Plaintiff was offered the use of an A-frame ladder. Finally, the defendants had no supervisory control over the work Plaintiff was performing.
 
In opposition, Plaintiff argued that the work he was engaged in required specialized equipment (a power washer); the work involved an elevation of approximately 20-25 feet; and the cooling tower was defective because it had no built-in ladder hooks or other means to secure a ladder. 
 
After oral argument, the court agreed with defendants’ argument that Plaintiff was engaged in routine maintenance and, therefore, not entitled to the protections of New York Labor Law. The Court granted the defendants’ motion in its entirety and denied plaintiff’s partial motion for summary judgment under NY Labor Law 240(1). Further, the court found no evidence of any defective condition for the subject water cooler, which had never received any violations or citations from any state or local municipality. 
 
This result eliminated our client from a high-exposure case with a special trial preference. This represents a significant victory considering NY Labor Law 240(1) presents strict liability exposure.

Thomas O’Connor (Associate-White Plains, NY) and Bernice E. Margolis (Partner-White Plains, NY) secured pre-answer dismissal of all claims in the Supreme Court, New York County​, on behalf of Wilson Elser’s property owner clients in a residential habitability action. The plaintiff, a long-term occupant of a New York City loft unit, alleged that our clients failed to maintain the premises and engaged in a coordinated effort to force her out to increase rent. The complaint cataloged a wide range of alleged deficient building conditions, including unsafe stairways, pest infestations, structural defects, lack of heat and hot water, exposed wiring, and mold. The plaintiff further claimed to have suffered significant emotional and physical injuries, including panic attacks, depression, and gastrointestinal distress. Based on these allegations, the plaintiff advanced numerous causes of action sounding in negligence, premises liability, breach of the warranty of habitability, breach of quiet enjoyment, private nuisance, constructive eviction, and intentional and negligent infliction of emotional distress, seeking substantial compensatory and punitive damages.

Recognizing all claims were either time-barred or improperly pled, Tom and Bernice filed a pre-answer motion to dismiss the plaintiff’s complaint on multiple, independent grounds. Central to their motion was the argument that the plaintiff’s claims concerning building conditions, habitability, and Loft Law compliance fell within the primary jurisdiction of the New York City Loft Board, and that the plaintiff’s failure to exhaust administrative remedies barred the action. The motion further established that the emotional distress claims were time-barred, that the plaintiff’s attempt to plead a Penal Law violation failed as a matter of law for lack of a private right of action, and the claims against the individual defendants were legally deficient.

In response, the plaintiff did not meaningfully engage with the merits of Wilson Elser’s motion, instead attempting to sidestep dismissal by filing successive amended complaints without leave of court, in an effort to moot the motion. In their reply, Tom and Bernice squarely addressed and neutralized this tactic. They demonstrated that the filings were procedurally improper, contravened the Court’s directives, and failed to cure any substantive defects, emphasizing that the plaintiff’s latest pleading was merely a “difference without distinction.”

The Court adopted our position in full, holding that the plaintiff failed to substantively oppose the motion, that the unauthorized amended pleading was a nullity, and that the plaintiff’s failure to address the arguments made on behalf of our clients constituted abandonment of her claims. The Court dismissed the complaint in its entirety.

Christopher W. Hofmann (Associate-White Plains, NY) obtained complete summary judgment from the Bronx County Supreme Court in favor of Wilson Elser’s client, a large, certified home health agency based in New York City. The plaintiff, acting on behalf of the decedent ‒ an insulin-dependent diabetic who received skilled nursing visits at home following her discharge from a non-party hospital ‒ asserted claims sounding in negligence and medical malpractice. The plaintiff alleged that the agency failed to monitor the decedent’s blood glucose levels properly and failed to correctly administer and monitor insulin dosages, resulting in a worsening of her diabetic condition. According to the allegations, the decedent subsequently developed altered mental status, hypothermia, and hypoxia secondary to severe hypoglycemia, which ultimately resulted in her death.

Chris moved for summary judgment, arguing that responsibility for administering insulin and monitoring the decedent’s blood glucose levels rested solely with the decedent’s caregiver. The motion was supported by a nursing expert who opined that the agency’s initial and ongoing nursing assessments properly determined that the caregiver demonstrated sufficient diabetes-management knowledge and self-management skills, including insulin administration, blood glucose monitoring, and recognition and treatment of hypoglycemia. In further support of the motion, a geriatric expert affirmed that the sole proximate cause of the decedent’s severe hypoglycemia and related symptoms was a medication error, specifically, the caregiver’s administration of excessive insulin. In opposition, the plaintiff argued that the agency should not have allowed the decedent’s caregiver, whom the plaintiff characterized as an untrained “layperson,” to administer insulin or monitor the decedent’s blood glucose levels.

In granting summary judgment, the court found the opinion of plaintiff’s expert to be “pure speculation,” and agreed with Chris’s arguments that the opinion was conclusory, unsupported by the evidence, and contradicted by the medical records and testimony establishing the decedent’s caregiver’s longstanding experience and demonstrated competence in performing these tasks. The court also agreed that the sole departure raised in opposition had not been previously pleaded, that the plaintiff’s expert physician was unqualified to opine on the skilled nursing standard of care, and that the plaintiff failed to establish how any alleged error by the decedent’s caregiver could be attributed to our agency client.
 

Daniel S. Hurwitz (Partner-Los Angeles, CA), Anatolii Trembach (Associate-Los Angeles, CA), and Rory L. Lubin (Partner-White Plains, NY) obtained a complete victory in the Superior Court of California on behalf of Wilson Elser's client, a global real estate investment trust. The plaintiffs in this case sued our client, the alleged landlord of an industrial property where the decedent had worked, along with other defendants. The plaintiffs claimed that the decedent's death was caused by exposure to toxic chemicals at a facility operated by the client’s tenant, asserting wrongful death, strict product liability, and survival causes of action.

Dan and Anatolii prevailed on two successive demurrers, persuading the court that the claims against the client were barred by the statute of limitations and that the relation-back doctrine under Code of Civil Procedure § 474 did not apply. The court agreed and dismissed the action against the client. When the plaintiffs moved for reconsideration, we filed another brief demonstrating that the motion presented no new facts, circumstances, or law warranting reconsideration under Code of Civil Procedure § 1008. After reviewing our brief, the plaintiffs waved the white flag and withdrew the motion in its entirety, resulting in complete and final dismissal of the action at the pleadings stage and sparing the client the costs and risks associated with the discovery process. The case against the remaining defendants continues.

Christopher Peticca (Associate-White Plains, NY) and Alan Friedberg (Senior Counsel-White Plains, NY) obtained summary judgment in New York State Supreme Court, Bronx County, securing dismissal of a medical malpractice action against Wilson Elser’s clients, an orthopedic surgeon and his practice. The plaintiff, who sustained a workplace injury years earlier, underwent more than six years of treatment under workers’ compensation coverage before undergoing a total knee replacement performed by our clients. She alleged that the surgery was negligently performed, claiming the components were oversized and improperly aligned. In moving for summary judgment, Chris and Alan argued that the surgery was performed in accordance with the standard of care and that recovery was barred under Workers’ Compensation Law § 11, as the plaintiff had already been compensated for the same injuries.

In opposition, the plaintiff submitted an expert affirmation challenging the size and alignment of the knee replacement components, as well as case law in support of her position that her workers’ compensation claims did not bar the malpractice action because the subject knee replacement surgery caused her additional harm. On reply, Chris and Alan prevailed on both arguments, demonstrating that subsequent treatment records and radiological films confirmed the components were properly aligned and installed, and that the plaintiff’s expert ignored material evidence in rendering an opinion to the contrary. They further relied on findings from multiple non-party medical providers within the workers’ compensation records to establish that the clients’ treatment did not cause any additional harm to the plaintiff. Accordingly, the Court held that summary judgment was warranted on two distinct grounds and dismissed the plaintiff’s complaint. 

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.

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-White Plains, NY) secured a no probable cause determination for a landlord client in a housing discrimination matter before the Maryland Commission on Civil Rights. The complainant tenant alleged that our client/respondent discriminated against her based on disability and source of income, as well as claiming retaliation. The investigation established that the respondent lacked knowledge of the complainant’s physical disability and determined that the only request for reasonable accommodation by the complainant included documentation exclusively supporting the need for an emotional support animal (ESA). The complainant, however, asserted that she requested accommodation for a severe breathing disorder, while our client maintained that no such request or medical documentation of a respiratory condition was ever received. While the complainant successfully obtained accommodation for her mental health needs, no evidence supported the existence of a formal request concerning a physical breathing disability. The investigation concluded that the respondent did not treat the complainant differently from other tenants or subject her to harassment based on her disability or source of income.

Gregg Tatarka (Partner-White Plains, NY) ​Suna Lee (Of Counsel-Madison, NJ) and Samantha Marrelli (Associate-White Plains, NY) prevailed on a motion to dismiss in Bergen County Superior Court, New Jersey, on behalf of Wilson Elser’s global consumer electronics company client. In this product liability case, the plaintiff, a North Carolina corporation, filed a lawsuit in New Jersey against our client and a national lease-to-own retailer. The plaintiff alleged that its insureds, Missouri residents, sustained damage to their Missouri property from a 2024 fire caused by an allegedly defective product​ supplied by our client and the codefendant retailer.

Although the alleged incident, property damage, insureds, and all fact witnesses – including those involved in the fire investigation and subsequent inspection and repair – were located in Missouri, the plaintiff filed suit in New Jersey, relying primarily on the state being our client’s principal place of business. However, the plaintiff’s causes of action were based in Missouri case law. In lieu of filing an answer, Suna and Samantha moved to dismiss under forum non conveniens, demonstrating that New Jersey had no meaningful connection to the dispute and that Missouri was the appropriate forum.

In their reply to the plaintiff and codefendant’s opposition to the motion, which proved paramount to winning the case by distinguishing between the facts and the claimed case law, Suna and Samantha underscored that the plaintiff is a North Carolina corporation, the plaintiff’s insureds are Missouri residents, and Wilson Elser’s client is a New York corporation with a principal place of business in New Jersey. Additionally, they emphasized the absence of any reported decision, permitting a non-resident plaintiff to pursue out-of-state claims under that state's law, surviving a forum non conveniens challenge.

The court agreed and dismissed the action with prejudice, sparing our client from litigating a Missouri-based loss in an improper forum.

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.

Michael E. Gallay (Partner-White Plains, NY) and Francis A. Howell (Associate-White Plains, NY) obtained summary judgment in the Supreme Court of the State of New York, Westchester County, on behalf of a large hospital system, a pediatric ENT surgeon, and an anesthesiologist. The plaintiffs alleged the improper prescription of oxycodone for pain relief following a tonsillectomy, resulting in the overdose death of the 5-year-old patient five days after the surgery. The summary judgment motion was supported by the expert affirmations of a pediatric ENT, a toxicologist, and a pharmacologist who had done years of research on the effects of oxycodone on pediatric patients. The experts agreed that the medication was prescribed within the standard of care for ENT surgery, the dosage was appropriate, and the post-mortem oxycodone levels indicated the child must have received significantly more than prescribed. In opposition, plaintiffs’ counsel submitted only the affirmation of a retired pediatrician who never performed a tonsillectomy, never prescribed oxycodone to a pediatric post-operative patient, and lacked training in pharmacology or toxicology. The court adopted Michael and Francis’s reply argument, finding that the plaintiffs’ purported expert merely cited out-of-context medical literature, constituting inadmissible hearsay, and failed to demonstrate sufficient knowledge of the applicable standard of care for prescription of oxycodone or pertinent pharmacological factors of pediatric oxycodone use. Accordingly, the court held that Wilson Elser met the burden of demonstrating a prima facie right to summary judgment and that the plaintiff expert’s affirmation was insufficient to create an issue of fact.

Christopher W. Hofmann (Associate-White Plains, NY) and Alan Friedberg (Senior Counsel-White Plains, NY) obtained a Decision and Order from the Bronx County Supreme Court, New York, granting total summary judgment in favor of Wilson Elser’s clients, a Bronx hospital and its Chief of Orthopedic Surgery. The action arose from a left total hip replacement procedure in which the plaintiff allegedly sustained subsidence and periprosthetic fractures requiring revision surgery, hospitalization, and extensive rehabilitation. The plaintiff claimed the injury was caused by our client’s aggressive and forceful implant insertion and/or the use of an improper prosthetic. In seeking summary judgment, Chris and Alan demonstrated that the implants were properly sized, post-operative imaging showed no fractures, and the plaintiff’s complications were instead attributable to undiagnosed primary hyperparathyroidism – an endocrine condition associated with weakened bone and heightened fracture risk – subsequently diagnosed at a treatment facility. Their motion, supported by an expert Board-Certified Orthopedic Surgeon, persuaded the Court, which found that the plaintiff’s anatomy, not any improper medical practice, caused the subsidence and fractures, therefore granting judgment in the clients’ favor.

Audrey Medd (Associate-White Plains) prevailed on her motion to dismiss in Westchester County Supreme Court, New York, on behalf of Wilson Elser’s large hospital system client. In this matter, the plaintiff served a summons with notice. Wilson Elser demanded a complaint and, when none was forthcoming, moved to dismiss the matter. The plaintiff objected, arguing that he should be allowed to file a late complaint. Audrey argued that even if the plaintiff could file a late complaint, he failed to demonstrate a meritorious cause of action or establish a reasonable excuse for the late filing. The court concurred, granting Wilson Elser’s motion to dismiss and denying the plaintiff's cross-motion.

Chris Peticca (Associate-White Plains, NY) defended a hospital in a case in which the plaintiff pled that the our client’s conduct was “careless” and “reckless,” and negligent. In conferences and, ultimately, by motion submitted on the court’s invitation, Chris convinced Judge Frishman (Bronx County) to strike the “careless” and “reckless” language from the pleadings. The plaintiff appealed. On the appeal handled by Julia Audibert (Associate-New York, NY) and Judy Selmeci (Partner-New York, NY), the plaintiff challenged the timeliness of the motion and argued that the possibility of punitive damages lingers, including pursuant to Pub. H. Law 2801-d. We pointed out in response that none of that is right, arguing that the motion was made when the judge invited the defendant to submit it, so it was entirely within the court’s discretion to entertain the motion. In addition, Julia and Judy argued, the defendant is not a residential health care facility, so PHL 2801-d is not applicable. In addition, the plaintiff had not pled any facts to support a punitive claim and there could be no dispute that the language was prejudicial, and an order striking prejudicial language from pleadings is not appealable and the plaintiff had not sought leave to appeal. The First Department agreed that the order was not appealable but sua sponte granted the plaintiff leave to appeal – only to then agree with all of our other points and affirm.   

Paul Karp (Partner-New York, NY) and Francis Howell (Associate-White Plains, NY) defended a hospital, treating neurosurgeon, and treating neuro-intensivist (an internationally recognized expert in the field of Neuro Critical Care Medicine) in a case venued in Westchester County Supreme Court that involved claims of pain and suffering as well as wrongful death after the decedent suffered an intracerebral hemorrhage. The plaintiff claimed that the decedent was suffering from life-threatening intracranial pressure, which put her in danger of an imminent brain stem herniation, and that surgery should have been performed to place an extra-ventricular drain and intracranial pressure monitor. Paul was able to prove through his witnesses that the decedent had significant preexisting cerebral atrophy with enlarged Sulci, which provided the room within her brain to accommodate the edema caused by her severe stroke. Paul’s witnesses, using the evidence graphics we created, were able to definitively show that even without the placement of the intracranial pressure monitor, the pressure within her skull was stable and she was never in danger of developing the life-threatening brainstem herniation. Therefore, no surgical intervention, nor the administration of last-ditch effort pharmacological interventions (Hypertonic Saline or Mannitol) to reduce brain edema were warranted. Frank filed a motion in limine to preclude the plaintiff from offering testimony analogous to that of an expert and the motion was granted by the court. After a week of trial, the co-defendant, a skilled nursing center, settled out with the plaintiff. Rather than continue the case, the plaintiff discontinued the action as to the hospital and the two named physicians. 

Melinda Flecker (Partner-Long Island, NY) and Tal Cushmaro (Partner-White Plains, NY) have secured a unanimous defense verdict on behalf of the firm’s client, Uber Technologies, Inc (Uber), in a motor vehicle accident case tried in Supreme Court, Kings County, New York. The plaintiff alleged she was injured in a two-vehicle collision involving a co-defendant driver and claimed that Uber was vicariously liable for the driver’s alleged negligence. She contended that the driver was Uber’s employee because he was using the Uber App and transporting a passenger obtained through the platform at the time of the accident. Melinda and Tal successfully defended the case by demonstrating, through evidence elicited during the plaintiff’s case-in-chief, that the driver was an independent contractor, not an employee. The trial’s liability phase spanned three weeks, including seven days of jury selection, extensive motion practice, and five days of testimony. After deliberating for approximately 30 minutes, the jury concluded that although the driver was negligent, Uber was not liable for his conduct because he was not its employee.

Joshua Cash (Partner-New York, NY) and Mark Ledwin (Partner-White Plains, NY) commenced an action in 2023 on behalf of the National Credit Union Administration (NCUA) against the ex-CEO of a Credit Union, under New York’s Faithless Servant Doctrine. The NCUA argued that the ex-CEO should forfeit $7,323,557 in compensation and a $1.5 million collateral assignment split-dollar insurance policy because of his criminal convictions, alleged financial improprieties, and policy violations. The ex-CEO’s misconduct began during the height of the taxicab industry and ultimately led to his conviction in 2021, after the Credit Union was liquidated by the NCUA. As a result of the criminal trial, the ex-CEO was sentenced to 46 months in prison and was ordered to pay $2 million in restitution (he currently remains incarcerated in Otisville, NY). The improprieties included accepting illegal gratuities from taxi medallion owners and brokers, approving tens of millions of dollars in the Credit Union’s loans to its detriment, and accepting luxury vacations and gifts without the approval of the Credit Union’s board.

Judge Nina R. Morrison of the U.S. District Court for the Eastern District of New York approved the final judgment based on the Federal Magistrate’s report and recommendation after the NCUA was successful on its motion for partial summary judgment on liability. The final money judgment amounts to $7,323,557.15, which is the total amount of the ex-CEO’s salary from February 10, 2011, until his termination of employment in 2016 (and provides for an equitable lien on the ex-CEO’s interest in his life insurance policy, up to the amount of the money judgment). Together with an early settlement obtained from the Credit Union’s ex-General Counsel for nearly $1 million, the NCUA stands to recover more than $8 million.

Noelle Robinson (Of Counsel-White Plains, NY) and New York partners Guy Levasseur and Thomas Comer defended a NY county, transit operators, and bus driver in a personal injury case with a potential value in excess of $5 million. The plaintiff alleged a fall on a transit bus, from which he initially claimed cervical, lumbar, and right knee complaints treated with injections, but later claimed a traumatic brain injury and cognitive impairments, as well as a permanent inability to work. The plaintiff refused to settle, and the case was set to go to trial in January. Noelle filed a motion for summary judgment, arguing that the plaintiff was not able to establish that the braking of the bus was unusual or violent. In its Decision and Order, the court found it persuasive that even in his inconsistent testimony, plaintiff admitted that the bus was “moving very slowly” when the alleged incident occurred. The driver confirmed at deposition that he slowed upon observing the brake lights of the vehicle in front of the bus, and that the passenger reported at the time that he did not need medical attention. The decision determined that our clients were entitled to judgment as a matter of law in that the bus was not caused to move in an unusual or violent manner, agreeing that the plaintiff provided no objective evidence of any movement of the bus other than “the jerks and jolts commonly experienced in city bus travel,” despite the plaintiff’s disclosure of an expert with decades of experience, to assert that the bus violated national standards for “jerk rates,” and that the plaintiff raised no triable issue of fact.

Larry Lum (Partner-New York) and Rachel Davis (Of Counsel-White Plains) secured a defense verdict in the Supreme Court of New York, Nassau County, on behalf of Wilson Elser’s client, a major New York Health Care System. The plaintiff in this case claimed she slipped and fell in a bathroom owned by our client, alleging the floor had just been mopped by our client’s employee and was improperly safeguarded while still wet. She further claimed that following the incident, the employee admitted fault, and that other staff she interacted with thereafter acknowledged the floor was wet, although none of these alleged witnesses were produced at trial. 

Larry and Rachel presented the employee who would have mopped the floor around the time of the alleged incident – an 87-year-old environmental services worker with more than 50 years of experience, who denied knowledge of the incident or making any admission. He testified to his strict safety protocol, which included barricading the door with a pole to prevent it from being opened and personally ensuring the floor was dry before moving on to the next area. In their summation, Larry and Rachel stressed our client’s credibility, the plaintiff’s lack of witnesses to support her claim, and inconsistencies in her account (e.g., no recollection of having wet clothing or smelling cleaning products). The jury deliberated just 15 minutes before returning a unanimous defense verdict.
 

Lori Semlies (Partner-White Plains, NY) and Kristyna Burkova (Associate-New York, NY) were successful on a motion to dismiss the complaint on behalf of our clients, a hospital and physician, based on COVID-19 immunity grounds, specifically on EDTPA and PREP Act immunities. Lori and Kristyna moved to dismiss at the close of discovery after more than three years of litigation. The 71-year-old plaintiff was transferred to our client hospital with a COVID-19 diagnosis, strep mitis bacteremia, spinal osteomyelitis at C2-C3 and L3-L4, multi-focal pneumonia, and pulmonary edema. Upon admission, he received all indicated care, and when he was stable enough, he was transferred to Mount Sinai Hospital for evaluation for an aortic valve replacement. His  injuries healed completely within three months of discharge. When the plaintiff filed suit, Lori and Kristyna submitted a geriatric expert affirmation in support, as well as expert affirmation of a board-certified pulmonary and critical care physician, who was a director of the medical ICU during the pandemic and who detailed the impact of the pandemic on the care at the time of plaintiff’s admission. Before filing his opposition, plaintiff cross-moved to amend the pleadings to add a gross negligence cause of action in an obvious attempt to circumvent the immunities. The Court granted our motion pursuant to the immunities afforded by the EDTPA and PREP Act and denied plaintiff’s cross-motion for leave to amend the complaint for failure to present a meritorious cause of action. In the decision, following its prior decisions in Kalogiannis and Gerber, the court noted that plaintiff’s claims fall squarely within the immunity. 

Jimmy Burke (Partner-White Plains, NY) and Gene Stith (Of Counsel-Long Island, NY) obtained a defense verdict after a six-day liability jury trial in Orange Supreme Court. The plaintiff alleged she was seriously injured in a parking lot drain basin that had become a sink hole, which at the time was covered by snow, and she did not see it. The plaintiff had obtained partial summary judgment on liability prior to trial against the property owner and its tenant on the issue of notice. The owner and tenant were responsible per the lease for snow removal and repair and maintenance of the parking lot. Our client, the plaintiff’s employer, was brought into the case by the property’s tenant, as it had a use agreement for a warehouse on the site, and contracted with the tenant to perform certain recycling, packaging, and dunnage work. The tenant vigorously fought to shift the case’s entire liability to our client on the theories of special use of the property, contractual and common law indemnity, and negligence. Due to multiple surgeries including lumbar laminectomies, two implants and removal of spinal cord stimulators, multiple nerve blocks, and a diagnosis of complex regional pain syndrome, the plaintiff’s demand was $15 million. Jimmy and Gene similarly fought back hard and after less than 1.5 hours of deliberations, the jury returned a defense verdict as to our client and found the owner and tenant 100 percent responsible. They specifically found our client did not breach its indemnity agreement because they found that the plaintiff was not performing services under the contract when she was injured, and that our client was not negligent and did not make a special use of the property. They also found no comparative fault against the plaintiff. White Plains, NY, partner Scott Stopnik’ s guidance was a big factor in this win.

Anna Borea (Associate-White Plains, NY), Steven DeBraccio (Of Counsel-Albany, NY), Katherine McCrink (Partner-White Plains, NY), and Lori Semlies (Partner-White Plains/New York, NY) defeated allegations against two nursing homes and a home care agency charged with malpractice in the care of three decedents – a tour de force on behalf of Wilson Elser’s Medical Malpractice & Health Care Practice.

The first dismissal was out of Kings County. We represented the nursing home. There, the plaintiff claimed the development and deterioration of pressure ulcers. The pressure ulcers first developed at co-defendant hospital, where the decedent was admitted from June 3, 2020, through July 31, 2020. Plaintiff was then discharged to our client nursing home from July 31 through August 7, 2020. The decedent was then discharged to a non-party hospital and subsequently passed away. By the time the decedent was admitted to our nursing home, he had a necrotic stage IV sacral ulcer, was ventilator dependent, and in kidney failure. Although the hospital admission fell squarely within the immunity provided under EDTPA, the nursing home admission, in part, fell outside of the EDTPA immunity. Our summary judgment motion focused on the clinical unavoidability argument as well as Executive Order 210.10 (which alleviated facilities from the requirement to regularly document and extends beyond the EDTPA immunity period). In opposition, plaintiff focused on claims stemming from the facilities lack of documentation.

Next, in a case also out of Kings County, we represented another nursing home. The plaintiff claimed the decedent suffered from a bowel perforation on May 20, 2018, which led to death a few days later. In our motion, we argued that there was no prior indication that (1) the decedent was suffering from a bowel perforation and (2) the decedent should have been sent to the hospital any sooner than he was. In opposition, the plaintiff focused their argument on two instances of isolated rectal bleeding in 2015 and 2017 and an alleged failure to order gastrointestinal consultations following those bleeding episodes. The plaintiff also argued that constipation caused the bowel perforation. This directly contradicted our gastrointestinal expert, who opined the perforation was caused by diverticulitis. In reply and at oral argument, we focused on the fact that this was a case that came down to the days leading up to the perforation at issue, not the years. We further argued that any reference to gastrointestinal consultations was irrelevant to the claims being asserted here as it is still unclear how those consultations would have been able to predict a bowel perforation years later. We also argued that, in those days leading up to the perforation, there was no indication that the decedent was suffering from any signs or symptoms of a bowel perforation. Essentially, we argued that the cause of the perforation was immaterial to the claims asserted here given the facts then and there existing to the nursing home staff. The court agreed. 
 
Finally, in a case out of Bronx County, we represented an agency providing nursing home care. The plaintiff claimed a failure to diagnose and treat a bump on the decedent’s groin. The bump was first identified by the assessing nurse on July 22, 2014, who documented the decedent denied any pain or discomfort to the area and that her vital signs were normal. Nevertheless, the assessing nurse immediately notified the decedent’s doctor and requested an evaluation, which was performed the next day. The on-call doctors’ office sent a PA to assess the “bump,” diagnosing the decedent with cellulitis to the area. The decedent passed away on July 27, 2014, due to the “bump” [an aneurysm] rupturing, resulting in her bleeding out. 
 
In addition to our client, the plaintiff named the on-call doctors’ agency and home health aid agency, as well as the PA/doctors individually. At summary judgment, the plaintiff limited their claims against our client, stating the assessing nurse was negligent and departed from the standard of care by (1) failing to send the decedent to the ER on July 22, 2014, when a “bump” was first identified on the decedent’s groin and (2) failing to perform a proper assessment of the “bump” on July 22, 2014. In reply, among other things, we argued plaintiff’s expert had no experience with home care, the assessing nurse performed a complete and thorough assessment in accordance with the standard of care, and co-defendant PA’s actions/inactions superseded the nursing assessment. 

Lauren Santucci (Associate-White Plains, NY) defended our hospital client in a case involving orthognathic surgery performed by codefendant oral-maxillofacial surgeon to address the plaintiff’s sleep apnea. During the procedure, the bit of the drill used to access the jawbone broke off and became lodged in the surrounding tissue. The surgeon was unable to locate the drill bit, and a second surgeon was called in who removed the entire drill bit, which was disposed of as a surgical sharp. Post-operatively, the plaintiff had facial swelling that required intubation for several days, and later developed facial nerve palsy attributed stemming from the exploration for the bit. Other alleged damages included left facial paralysis, facial weakness, inability to close the left eye, inability to eat and drink properly, and malocclusion. Lauren argued that the hospital provided the surgeon with an unused drill bit that was inspected prior the surgery and that the complication of loss of the drill bit was a surgical issue that did not involve the hospital or its personnel, and that the drill bit, once retrieved and confirmed to be complete, was appropriately discarded as a surgical sharp. The plaintiff argued they were entitled to the adverse inference of spoliation because the drill bit was material evidence and should have been preserved; failure to do so prevented the plaintiff from ascertaining whether the drill bit was defective. In the decision, the Bronx County Supreme Court​ noted plaintiff’s opposition was entirely speculative and not an affirmative opinion that there was negligence. The court granted Lauren’s motion for summary judgment and denied plaintiff’s cross motion for spoliation sanctions. The court determined the hospital was not obligated to maintain the bit and the record confirmed the drill bit was fully retrieved, that there was no evidence it was discarded with a culpable state of mind, or that the plaintiff was deprived of his ability to prosecute his claim. The court noted the record established the bit was new and inspected prior to use; thus, the plaintiff’s inability to examine the bit did not equate to prejudice sufficient to warrant spoliation sanctions.

Michael Grady (Partner-White Plains, NY) and Siobhainin Funchion (Of Counsel-White Plains, NY) obtained a unanimous defense verdict for their client hospital in a two-and-a-half week trial in the Supreme Court of Putnam County. The case involved the death a 55-year-old male leaving behind a widow and four children following  cardiac arrest two days after an emergency room presentation for radiating left shoulder pain. The plaintiff alleged the defendants failed to properly rule out a cardiac cause for the presenting pain with a medical history of hypertension, coronary artery disease, and hyperlipidemia and family history significant for heart attacks. At trial, Mike and Siobhan argued that the emergency room presentation was consistent with a chronic orthopedic etiology that did not warrant cardiac workup, and that postmortem pathology was consistent with a sudden acute cardiac event rather than chronic underlying cardiac condition. On physical exam, the decedent’s shoulder pain was reproduceable with movement and he responded to treatment with an anti-inflammatory and pain medication injection. The defendants’ experts opined that cardiac pain is not reproducible in nature nor would it respond to an anti-inflammatory or pain medication to completely resolve, and our experts further explained that cardiac left extremity pain typically presents with chest pain radiating to the left arm, rather than shoulder pain radiating to the elbow/hand. The trial involved 11 witnesses including 5 experts in the fields of cardiology, pathology, and emergency medicine. The plaintiff’s attorney asked the jury for $23 million in this overly contentious trial. The jury found unanimously for our client in two hours. 

Michael E. Gallay (Partner-White Plains, NY) and Christopher W. Hofmann (Associate-White Plains, NY) successfully moved in Dutchess County Supreme Court for summary judgment on behalf of our nursing home client on the basis of immunity under the Emergency Disaster Treatment Protection Act (EDTPA). The plaintiff’s primary claim was that the facility failed to prevent multiple falls resulting in hip fractures requiring surgical reduction. However, the patient’s admission from March through July 2020, during the height of the pandemic, was significant for ongoing and worsening behavioral issues, and records clearly documented that the fractures resulted from multiple incidents during which she threw herself off her bed onto the floor despite multiple preventative measures. In addition to a strong defense to the underlying claims, Michael and Christopher successfully contended that EDTPA immunity applied given the time frame and absence of any viable claim for gross negligence. The Supreme Court agreed that the EDTPA was applicable, that our client made a sufficient showing of entitlement to immunity, and that plaintiff failed to raise a triable issue of fact as to whether immunity should attach. Notably, the Court found that plaintiff’s expert was conclusory since it failed to addressed the specific allegations of the Director of Nursing as to how the COVID-19 pandemic affected our client’s operations and the various aspects of the decedent’s care throughout her admission, including, in particular, the facility’s ability to implement enhanced observation, including 1:1 observation, and their ability to transfer the decedent to another facility for a higher level of care. 

Alan Friedberg (Senior Counsel, White Plains, NY) and Nicole Holland ​​(Of Counsel-White Plains, NY) obtained a defense verdict after an 11-day trial in Supreme Court, Westchester County. Our client, an orthopedic surgeon, performed a total knee replacement on the plaintiff, and eight months later, plaintiff underwent a revision at the Hospital for Special Surgery during which the prosthetic components placed by our client were replaced with smaller components. At trial, plaintiff claimed the femoral component of the knee replacement was negligently placed, causing an overhang and impingement, which caused excessive pain and required a revision due to excessive scarring that formed from the inability to do physical therapy. At trial, Alan and Nicole were able to produce a musculoskeletal radiologist who demonstrated that the soft tissues in the knee were easily visualized on a MRI before the revision procedure even with the presence of artifact from the metal implants. This expert clearly demonstrated that there was no impingement and no inflammation. Further, the plaintiff claimed permanent injury, as his left leg and knee cramp up and lock. There was also testimony that he experienced excessive atrophy in the leg after the revision due to inability to participate in PT after the first surgery. Nicole presented our independent medical examining expert, who demonstrated that there was no atrophy, the cramping was from long-standing peripheral vascular disease, and that plaintiff, in fact, had an “excellent result” from the revision surgery performed at the Hospital for Special Surgery. The jury came back with a unanimous  verdict in less than 1 hour and 10 minutes of deliberation.

Russ Vignali (Senior Counsel-White Plains, NY) and Ellen Bowman (Of Counsel-Las Vegas, NV) represented several clients involved in a product’s design and manufacture in a case involving an allegedly defective nail gun venued in the U.S. District Court, District of Nevada. On behalf of another client – the entity that licensed its well-known trade name to the nail gun’s retailer – Russ and Ellen moved for summary judgment on the grounds that, as a mere “licensor,” the entity was not truly in the nail gun’s chain of distribution and could not therefore be strictly liable for any design or manufacturing defect. The issue was one of first impression for Nevada courts. For that reason, the District Court certified the following question to the Supreme Court of Nevada:

Does Nevada impose strict products liability on an entity whose only involvement with a defective or unreasonably dangerous product is to license its trademark to be used to market the product and where the product and packaging prominently display its trademark?

Russ and Ellen emphasized a modern trend around the country that has protected companies that merely license their trade name but otherwise play no role in the product’s design and development. They cited the importance of product licensing in the modern American economy and the chilling effect that an adverse ruling would have in Nevada, where the gaming industry in particular relies so heavily on licensing and the use of trademarks. After significant briefing on both sides of the issue, including the filing of amicus briefs, the Nevada Supreme Court (in a 5-2 decision issued on May 1^, 2925) answered the certified question in the negative – marking a major victory for trademark owners operating in Nevada who license their trade names but exercise no control over the product’s final design and quality control.

The underlying case will continue against the remaining defendants.

Christopher J. Peticca (Associate-White Plains, NY) and Alan B. Friedberg ​(Senior Counsel-White Plains, NY)  obtained summary judgment in Supreme Court, Bronx County, dismissing the case against our clients, two urologists in Westchester County who treated plaintiff in December 2018 and January 2019 for urinary retention. The plaintiff, a Bronx resident​, claimed that the urologists, who together treated him on four separate occasions, failed to diagnose an infection that led to sepsis and a non-ischemic heart attack (Torsade de Pointes) resulting in the need for cardiac shock treatment and a two-week hospitalization. The plaintiff claimed that the urologists failed to timely diagnose and treat the infection that became severe, causing sepsis, which led to the resulting heart attack, hospitalization, and severe physical and emotional trauma. Christopher and Alan’s motion was based on the argument that the plaintiff suffered an acute septic reaction to a kidney stone, independent of his urinary retention, resulting in an acute bout of sepsis, which in fact did cause his non-ischemic heart attack. The summary judgment motion pointed out that the treatment to plaintiff’s retention was within the standard of care and met the American Urological Association guidelines for treatment of the plaintiff’s condition. The plaintiff’s expert was not able to adequately refute the claims of a lack of departure from standard of care and the lack of causation based on the diagnosis during the hospitalization for the acute kidney stone that caused plaintiff’s sepsis and resulting heart attack.

Eian Weiner (Associate-White Plains, NY) successfully secured dismissal of all claims in a lawsuit involving allegations of excessive force and constitutional violations by private security personnel employed by a firm client. The plaintiff alleged that, while visiting a public services office, he was approached and assaulted by aggressive security guards following a dispute over a pocketknife he had voluntarily surrendered and accusations that he was smoking marijuana on the premises. He claimed that the guards became aggressive and physically restrained him, causing injuries, and further alleged that his constitutional rights were violated under 42 U.S.C. § 1983. Additional claims were asserted for false arrest, false imprisonment, malicious abuse of process, defamation, and negligence. Eian moved to dismiss the complaint under CPLR 3211, arguing that the tort claims were time-barred under the applicable one-year statute of limitations, that the constitutional claims failed as a matter of law because the private security personnel were not state actors, and that the negligence claim was improper as it was predicated on conduct alleged to be intentional. The Supreme Court, Suffolk County, granted the motion in full, holding that the tort claims were untimely, the § 1983 claims failed as a matter of law, and the negligence and defamation claims were legally and factually unsupported. After also granting the county defendants' motion, the court dismissed the case in its entirety.

Eric Cheng (Partner-White Plains, NY) and Alex J. Ru (Associate-New York, NY) obtained a Decision and Order from Richmond County Supreme Court granting summary judgment in a New York Labor Law case that involved an alleged construction accident at a two-family residence where the plaintiff sustained injuries when a fence post fell on his foot. Our client, under a LLC, owned a two-family residence that functions exclusively as a private home for the client’s family. We moved for summary judgment on the basis that homeowners of a one- or two-family dwelling are statutorily exempt from liability under Labor Law sections 240 and 241(6), and that our client cannot be held liable under section 200 because the plaintiff’s accident arose from the means and method of his task and they did have the authority to supervise or control those methods or means. The plaintiff argued that the homeowners’ exemption is not available to (1) corporate owners of the residence, (2) a non-owner (or the entities principals) occupied residences, or (3) when the owner derives a commercial benefit even if no rent is charged if the tenants covered the expenses and maintenance (real estate taxes, insurance premiums, utilities, and repairs) of the residence. The court adopted Eric and Alex’s argument that the ownership entity, occupancy of the premises, or whether the tenant covers the costs of maintenance and expenses is immaterial as to the applicability of the homeowners’ exemption. Rather, the determinative factor in this case is the residential purpose of the property. The court found that the premises qualified for the homeowners’ exemption because it served no commercial purposes. Our client did not receive or collect rent from her family, and if the property is sold the proceeds would go to the family. The court further agreed that deposition testimony and video of the accident establishes that our client did not have authority to supervise or control the methods or means of the plaintiff’s work, and that the accident occurred because of the manner in which the work was performed and not the result of a dangerous condition on the property. 

​Emily Fernandez (Partner-White Plains, NY), Christopher Peticca (Associate-White Plains, NY), and Nicole Holland (Of Counsel-White Plains, NY) obtained dismissal of a wrongful death case on behalf of nursing home client based on COVID-19 immunity pursuant to the EDTPA. The action involved claims of medical malpractice and nursing home negligence in the care and treatment rendered to the plaintiff’s decedent allegedly resulting in COVID-19 infection and death. We drafted a motion to dismiss arguing that the medical records and policies implemented by the facility in response to the COVID-19 pandemic established that the decedent’s care was impacted by the pandemic, thus triggering immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA). The motion further argued that no exception to the EDTPA applied because the plaintiff failed to properly plead allegations of gross negligence, recklessness, and willfulness, as such claims were conclusory and not sufficiently distinct from the underlying negligence claims. In opposition, the plaintiff argued that we failed to conclusively establish whether the decedent’s care was in fact impacted by the pandemic and that further discovery was needed to meet that burden. The plaintiff also argued that claims of gross negligence, recklessness, and willfulness provided an exception for the EDTPA and required the motion to be denied. However, on reply, based in part on an analysis of the same case law that plaintiff submitted in opposition, we established that plaintiff’s argument was flawed and that we had indeed met the standard for EDTPA immunity in a nursing home negligence case. Specifically, we established that the plaintiff’s conclusory claims of recklessness were insufficient to provide an exception to the EDTPA and that medical records and relevant COVID-19-related policies proved that the treatment at issue was impacted by the pandemic. After oral argument on the motion in Supreme Court, Kings County, the case was dismissed in its entirety.