Kimberly Sheehan (Of Counsel-White Plains, NY) and Lindsay Kalick (Partner-New York, NY) secured summary judgment in the New York State Supreme Court, Bronx County, on behalf of Wilson Elser’s client, a plumbing company, resulting in dismissal of all claims before any depositions were conducted. The 40-year-old plaintiff alleged he sustained serious injuries when his electric scooter hit a pothole near a Bronx intersection and sought significant damages for injuries requiring lumbar spine fusion and shoulder surgery. Our client plumbing company had performed underground road work more than 636 feet away from the alleged pothole three months prior to the date of the incident. The plaintiff sued the parent construction company, although the work was performed by our client.

Kimberly and Lindsay moved for summary judgment, arguing that our client neither performed work at the accident location nor created the alleged roadway defect. They further argued that the court’s prior decision granting summary judgment to a codefendant on the same grounds constituted the “law of the case,” warranting the same result for our client. Their motion relied on an affirmation from the client’s representative attesting to the lack of any work performed at the accident location.

While the motion was pending, the plaintiff sought to proceed with depositions, arguing that the motion was premature. Kimberly and Lindsay successfully opposed those efforts, and the court held that the pending summary judgment motion stayed discovery. The court ultimately rejected the plaintiff’s contention that additional discovery might uncover evidence sufficient to defeat the motion.

In granting summary judgment, the court adopted the substantive arguments advanced by Wilson Elser, finding that:

• Our client established its prima facie entitlement to judgment through its representative’s affirmation, demonstrating that neither it nor its parent company performed work at the accident location and that its completed work was approximately 636.56 feet away.
• The plaintiff failed to raise a triable issue of fact, as speculation that our client’s work may have affected potholes two blocks away was insufficient.
• The plaintiff’s argument that the motion was premature was unavailing because the mere hope that future discovery might reveal supporting evidence does not justify denying summary judgment.

The dismissal eliminated the client’s exposure to significant damages in the Bronx County venue.  

Robert J. Cristiano (Of-Counsel-Long Island, NY) and Steven V. DeBraccio (Of Counsel-White Plains, NY) obtained summary judgment in the Kings County Supreme Court, Brooklyn, New York, on behalf of Wilson Elser’s client, a skilled nursing facility. The plaintiff brought negligence, gross negligence, negligent hiring, vicarious liability, Public Health Law, and wrongful death claims, alleging that the 67-year-old plaintiff-decedent suffered pressure ulcers, endocarditis, sepsis, malnutrition, dehydration, and a fall resulting in a traumatic brain injury due to our client’s failure to provide appropriate turning and positioning, skin care, hydration, nutrition, infection prevention, wound care, monitoring of preexisting conditions, and failing to prevent the plaintiff’s fall.

Although a fact-specific nursing and medical care case, Robert and Steven’s summary judgment motion was supported by targeted deposition testimony elicited from the plaintiff and Wilson Elser’s geriatric expert, who established that our client properly monitored and treated the decedent, was not negligent, satisfied its obligations under the Public Health Law, and that the decedent’s pressure ulcers were pre-existing and did not worsen at the client’s facility. Despite the severity of the injuries, the plaintiff was unable to raise any triable issues of fact as to liability or causation from the established record, and the court dismissed the action with prejudice.
 

Lauren Santucci (Associate-White Plains, NY) and Siobhainin Funchion (Partner-White Plains, NY) successfully defended a medical malpractice action brought against a major health network and their insured nephrologist. Plaintiffs alleged improper management of the plaintiff-patient's renal function resulting in urinary retention and the need for surgical intervention by a co-defendant urologist. Plaintiffs further alleged that following the urological procedure, the plaintiff-patient was not appropriately managed, and his complaints of fatigue were not properly considered, resulting in sepsis, endocarditis, and stroke. On behalf of our client nephrologist, Lauren and Siobhanin argued that our client timely diagnosed the patient's kidney failure, provided urology referral, and developed an appropriate pre-operative plan of care. They further argued that following the urological surgery, our client's role was limited to consultation and monitoring the patient's kidney function, which was improving during the subject hospitalization. Finally, they established that the patient's subsequent infectious complications and stroke were unrelated to his kidney disease or renal function.

The Westchester County Supreme Court agreed and granted summary judgment, dismissing all claims against the health network and its insured nephrologist.

Joseph Baiocco (Partner-White Plains, NY) and Eian Weiner (Associate-White Plains, NY) secured a complete defense victory in a personal injury action in the New York Supreme Court, on behalf of Wilson Elser’s trucking company clients. The case arose from two consecutive motor vehicle accidents on Interstate 84. During the first collision, a co-defendant forced our clients' tractor-trailer off the roadway, leaving it disabled on the left shoulder and partially obstructing the left lane. Approximately fourteen minutes later, the plaintiff collided with the stationary tractor-trailer, allegedly sustaining severe and permanent injuries and asserting negligence claims against all defendants. Throughout the litigation, the plaintiff sought $1.25 million to settle the matter. Still, based on our evaluation of the liability and medical evidence, no settlement offer was extended on behalf of our clients. 

Joe and Eian successfully moved for summary judgment, arguing that the plaintiff failed to meet New York's "serious injury" threshold under Insurance Law § 5102(d). Although the plaintiff relied on a surgical recommendation and expert medical proof in an effort to create an issue of fact, the court found Wilson Elser’s orthopedic independent medical exam established a prima facie entitlement to judgment by demonstrating a full range of motion, normal motor strength, and no functional deficits, and ruled that the plaintiff's expert affirmation was inadmissible under the amended requirements of CPLR 2106. The court further held that the plaintiff failed to raise a triable issue of fact due to unexplained treatment gaps and only minor range-of-motion limitations. Accordingly, the court granted our motion, dismissed the complaint in its entirety, granted the co-defendants' related serious injury cross-motion, and denied the remaining liability motion as moot. In the related action brought by the passenger in the plaintiff's vehicle, the White Plains team also successfully opposed the co-defendants' separate summary judgment motion seeking dismissal on proximate cause grounds by demonstrating triable issues of fact as to whether the initial collision created a continuing highway hazard and whether the subsequent collision was a foreseeable consequence of that condition. Although the court ultimately did not address the merits of that motion after dismissing this action on threshold grounds, it denied the co-defendants' liability motion. 

​Jazmin Williams (Associate-White Plains, NY) and Jay Potter (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, Nassau County, on behalf of Wilson Elser’s client, a sign repair company, securing dismissal of all claims and cross-claims. The team persuaded the court to reject the plaintiff’s metallurgical engineering expert’s opinions as speculative and unsupported by the evidence.

The plaintiff, a convenience store patron, alleged that a portion of a store sign fell and struck her head and neck, causing a traumatic brain injury and requiring a multi-level cervical fusion. She made a $10 million pre-motion settlement demand, and the store owner sought defense and indemnification from the client as well. Our client had been retained to perform limited repairs to the sign approximately 13 months before the accident. Through a careful analysis of the governing contracts and testimony from the co-defendants, Jazmin established that the client acted solely as an independent contractor with a narrowly defined scope of work. Further evidence demonstrated that the parties specifically negotiated a one-year warranty on the repairs. This record helped establish Wilson Elser’s prima facie argument that the client owed no duty to inspect or reassess the sign after its work was completed.

Jazmin meticulously prepared the client's witnesses for deposition and secured testimony confirming the owner's acceptance of the completed work. Combined with the defense expert's opinions, the court agreed that the evidence eliminated any triable issue of fact as to whether the sign was defective when the client completed its repairs more than a year before the incident.

Without evidence linking the client’s repair work to the sign failure, the plaintiff’s engineering expert lacked a factual basis to support his causation opinions. The court agreed with Wilson Elser’s arguments that the plaintiff’s expert’s opinions were based on speculation and conjecture, rejected them outright, and dismissed both the plaintiff’s negligence claims against the client and the contractual indemnification and contribution claims asserted by the co-defendants.

Peter J. Larkin (Partner-White Plains, NY), cochair of Wilson Elser’s Accountants Practice, along with Scott Wenzel (Of Counsel-White Plains, NY) and Rebekah K. Salas Mercer (Associate-White Plains, NY), secured a defense verdict in the Commercial Division of New York Supreme Court, New York County, for Wilson Elser’s client in a breach of contract dispute concerning the ownership and sale of a limited liability company established in 2007.
 
The defendant alleged, among other things, that an amendment to the company’s operating agreement, which transferred a 5% stake in the company to our client, was null and void, so the plaintiff was entitled to an additional 5% of the proceeds from the $26.5 million sale of the company in 2020. 
 
During the plaintiff’s cross-examination, Peter Larkin highlighted to the jury the plaintiff’s shifting and conflicting account of when the amended operating agreement was signed by the parties and extracted several admissions from the plaintiff that his conduct in the years leading up to the lawsuit was inconsistent with his claim that he had not sold our client 5% of the company.
 
The trial team then successfully argued several issues in connection with the jury charge and landed a defense friendly verdict sheet, requiring the jury to answer over twenty questions, the majority of which were focused on our client’s affirmative defenses of estoppel and unclean hands. 
 
After a week-long trial, the jury returned a complete defense verdict in less than two hours, finding that our client did not breach any contract, and that even if he had, our client’s affirmative defenses barred the plaintiff from any recovery. In addition, the jury awarded our client damages for his own breach of contract counterclaims.

Emily Fernandez (Partner-White Plains, NY) and Christopher Hofmann (Associate-White Plains, NY) obtained a defense verdict in the U.S. District Court for the Southern District of New York on behalf of Wilson Elser’s client, a hospital nurse practitioner, in a 1983 federal civil rights action. The plaintiff, an inmate, sued our client and six Newburgh, New York, police officers arising from a drug arrest and related rectal search. He alleged that our client used excessive force in violation of federal law in failing to perform the rectal exam in a reasonable manner pursuant to a search warrant obtained by the Newburgh police, resulting in civil rights violations, permanent rectal injury, pain and suffering, and post-traumatic stress disorder (PTSD).  The co-defendant police officers faced multiple civil rights claims, alleging excessive force and other civil rights violations arising from the search, detention, arrest, and prosecution. The plaintiff ultimately discharged his court-appointed attorney, who had been prosecuting the claims, and prosecuted the case pro se after refusing the City’s settlement offer on behalf of the police officers.
 
At trial, our nurse practitioner client testified that she performed the exam in a reasonable manner and in conformance with the search warrant. Her testimony was supported by Wilson Elser’s emergency room physician expert, who explained to the jury the nature of the examination and testified that the physical and psychological injuries alleged by the plaintiff were inconsistent with his testimony and subsequent medical records.
 
The plaintiff testified for 2 days regarding his claims of abuse and excessive force by the police officers and the hospital staff. He also testified to claims of fraud and conspiracy between the police and medical providers. On cross-examination, Emily secured admissions that the plaintiff routinely concealed crack cocaine in his rectum as part of his drug-dealing business model and had done so more than 300 times before the examination at issue. Emily also had the plaintiff read to the jury the identical damages allegations he asserted in subsequent federal lawsuits.
 
After just 46 minutes of deliberation on an eight-page verdict sheet containing more than 17 questions, the jury returned a verdict in favor of the nurse practitioner on all claims, including punitive damages, and awarded the plaintiff only $1 in damages against the police officers.

Paul Karp (Partner-New York, NY) and Francis Howell (Associate-White Plains, NY) obtained a defense verdict on behalf of their neurologist client following a jury trial in the Supreme Court of the State of New York, Rockland County. The plaintiff, a police officer, alleged that the neurologist failed to timely diagnose and treat myasthenia gravis, a neuromuscular disorder that causes muscle weakness in the voluntary muscles. He claimed that the alleged delay in diagnosis and treatment resulted in a “myasthenic crisis,” causing respiratory failure and admission to an intensive care unit, and negatively affected his ability to be a father and carry out normal daily activities. The plaintiff had missed more than one year of work following his ultimate diagnosis. At trial, the plaintiff’s expert testified to 17 alleged departures from the standard of care and that the failure to promptly diagnose myasthenia gravis worsened disease progression and diminished responsiveness to treatment.

Using meticulously detailed demonstrative exhibits, Paul guided the jury through the plaintiff’s course of treatment during the 6 months of alleged negligence, during which 11 medical professionals across 9 specialties evaluated him. Through expert testimony, Paul challenged the plaintiff’s claim that he suffered a myasthenic crisis, establishing that the plaintiff’s Negative Inspiratory Force (NIF) score never met the clinical threshold for such a diagnosis, despite repeated references to a "myasthenic crisis" in the non-party hospital records. Paul also undermined the plaintiff’s neurology expert’s credibility through cross-examination regarding the expert’s extensive work on behalf of petitioners in the U.S. Court of Federal Claims.

Frank drafted a successful memorandum of law arguing that the verdict sheet should be limited to a single liability question, despite the plaintiff’s numerous alleged departures from the standard of care, and only one liability question was submitted to the jury for consideration. He also filed a memorandum of law to preclude the plaintiff from making an improper argument to the jury on summation. In closing, Paul argued that the plaintiff failed to meet his burden of proving liability because his symptoms were diffuse, vague, and inconsistent with a diagnosis of myasthenia gravis during the relevant period. He further argued that the plaintiff failed to establish that any alleged delay in diagnosis caused a worsened prognosis or the claimed myasthenic crisis.

After deliberating for less than one hour, the jury returned a defense verdict in favor of Wilson Elser’s neurologist client. 

Jacqueline Hattar (Partner-White Plains, NY) and Urvashi Sinha (Partner-New York, NY) obtained summary judgment on behalf of Wilson Elser’s client, a truck driver, in the New York State Supreme Court, Bronx County. The plaintiff alleged that our client was negligent in the ownership and operation of his tractor-trailer truck by illegally parking it on a Bronx roadway. As a result of the alleged accident, the plaintiff claimed to have sustained serious injuries to his right shoulder and lumbar spine, requiring two surgeries, and sought to recover the client’s $1 million policy limit. Before depositions were completed, Jackie moved for summary judgment, seeking dismissal of the plaintiff’s complaint and all cross-claims. Jackie and Urvashi argued that, based on the police investigation and witness statements, our client’s truck was legally parked and did not make contact with the plaintiff’s vehicle, which had been struck by the co-defendant’s vehicle. In opposition, the plaintiff argued that the motion was premature because depositions had not yet been completed and that triable issues of fact existed as to whether Wilson Elser’s client was lawfully parked and whether the parked truck caused or contributed to the accident. In reply, Jackie and Urvashi maintained that the plaintiff failed to submit any evidence in admissible form, such as affidavits, photographic, or video evidence, to establish that the client’s truck was illegally parked in the roadway. The court agreed with Wilson Elser’s arguments and granted the motion in all respects. Jackie drafted the motion papers, and Urvashi orally argued the motion before the court on behalf of our client. The plaintiff’s action is continuing against the co-defendants, the driver and the vehicle owner.  

Samantha Marrelli (Associate-White Plains, NY) and Gregg Tatarka (Partner-White Plains, NY) secured a stipulation of discontinuance in the Supreme Court of the State of New York, Sullivan County, on behalf of a global consumer electronics company client in a product liability action arising from an alleged residential fire. The plaintiff claimed that a washing machine at their Rock Hill, New York, residence was defective and caused a fire.  The complaint asserted causes of action for negligence, strict product liability, breach of warranty, and product malfunction, and sought damages of nearly $90,000, plus interest from the date of the alleged fire. Throughout the litigation, the plaintiff's counsel repeatedly attempted to settle the matter without a laboratory examination of the subject product. Samantha consistently pushed back and maintained the client’s position that no settlement discussions would be entertained absent an examination. After Wilson Elser refused multiple settlement demands, the plaintiff provided a stipulation of discontinuance and is no longer pursuing the matter. 

Elizabeth Corley (Of Counsel-White Plains, NY) obtained a directed verdict in the New York State Supreme Court, Suffolk County, on behalf of Wilson Elser’s client, a nursing rehabilitation center, following an eight-day jury trial. The plaintiff claimed that the codefendants in this matter, a doctor and a physician’s assistant, negligently failed to prevent an infection after her mother underwent a right knee arthroplasty in July 2013, which was then improperly treated at our client’s rehabilitation facility. The plaintiff further claimed that our client did not timely transfer her mother to the hospital. The decedent ultimately underwent removal of the knee implant with irrigation, debridement, and placement of antibiotic spacers, multiple closed reductions, and, in September 2013, a permanent knee fusion. She died five years later from unrelated causes.

The plaintiff called four fact witnesses and two expert witnesses, including an orthopedic surgery expert and a geriatric medicine expert. Liz argued that the facility timely and properly followed both the surgeon’s orders and those of the facility’s internal physician; properly and timely monitored the decedent for signs and symptoms of infection, including drainage; properly administered the IV antibiotics; timely changed the surgical wound dressings; and timely notified the surgeon of a change in condition in August 2013, at which time decedent was immediately transferred to the hospital. 

On cross-examination, after establishing that the plaintiff’s expert lacked a specialty in infectious diseases, Liz secured the expert’s agreement on 78 instances where the decedent’s chart documented proper care. Ultimately, the court dismissed the case on motion by all defendants, finding that the plaintiff’s experts failed to establish the necessary element of causation.

Gregory Shapiro (Partner-White Plains, NY) secured summary judgment in a medical malpractice case before the New York State Supreme Court, Kings County, on behalf of Wilson Elser’s clients, a medical center client, an attending obstetrician/gynecologist (OB/GYN), and a medical resident previously dismissed through stipulation. The plaintiff allegedly sustained a nerve injury, causing lower extremity weakness and paresthesia, due to the negligent performance of a hysterectomy. She alleged a failure to position and reposition her properly during surgery, a failure to communicate among providers during surgery, and a failure to prevent nerve injury. The plaintiff also asserted claims relating to the post-operative period, alleging that our client failed to timely diagnose an iatrogenic nerve injury, disregarded complaints and clinical signs and symptoms indicative of nerve injury, failed to prescribe appropriate medications or order necessary diagnostic testing, and failed to obtain appropriate specialist consultations. Further allegations included a lack of informed consent and Res Ipsa Loquitor.

Through the affirmation of an OB/GYN expert, Greg established that the surgery was medically indicated, given the patient’s longstanding adenomyosis and lack of success in controlling bleeding with conservative measures. The expert opined that the straight vaginal hysterectomy was the appropriate procedure and was performed in accordance with the accepted standard of care. Reference was made to both physicians’ deposition testimony detailing the efforts undertaken to properly position the patient before surgery and periodically reposition her legs during surgery to mitigate the risk of nerve injury. Greg argued that nerve injury is a known complication of hysterectomy, a risk that was repeatedly discussed with the patient and to which she provided informed consent.

In opposition, the plaintiff submitted an affirmation from an OB/GYN expert who relied on positioning standards applicable to total laparoscopic hysterectomy, despite the plaintiff having undergone a straight vaginal hysterectomy. In his reply, Greg cited Palagye v. Loulmet, in which the Second Department held that an expert opinion based on an incorrect understanding of the procedure performed is insufficient to raise an issue of fact. The plaintiff also failed to meaningfully address arguments regarding dismissal of the remaining claims.

Granting Wilson Elser’s motion, the judge noted that the plaintiff’s expert improperly assumed a departure based on the absence of documentation reflecting positioning interventions applicable to a different surgical procedure. The court agreed with Wilson Elser’s expert’s testimony that the plaintiff was properly positioned and repositioned throughout the surgery, as supported by the providers’ deposition testimony. Accordingly, the court dismissed the action in its entirety, quashing the plaintiff’s $4 million settlement demand.  

White Plains, New York, partners Michael Grady and Siobhainin Funchion obtained a defense verdict following a four-week jury trial in the New York Supreme Court, Westchester County, on behalf of their obstetrician client. The plaintiff alleged that the client improperly managed her pregnancy by failing to timely deliver an infant with intrauterine growth restriction (IUGR). In her malpractice claim, the plaintiff maintained that the delay in delivery resulted in placental insufficiency and fetal hypoxia, causing hypotonia, failure to thrive, and permanent physical, cognitive, and developmental impairments. Mike and Siobhan successfully argued that the obstetrician's management of the pregnancy complied with the applicable standard of care. Relying on the American College of Obstetricians and Gynecologists (ACOG) guidelines, they demonstrated that, in cases of isolated IUGR with normal fetal testing, delivery between 38 and 39 weeks is appropriate. The evidence established that the infant was delivered within that recommended timeframe.
 
Working alongside counsel for the co-defendant maternal-fetal medicine physician, Mike and Siobhan further argued that the infant’s condition was attributable to a rare genetic microdeletion that was diagnosed the year following delivery, rather than any alleged delay in delivery. The trial featured testimony from 14 witnesses, including 10 expert witnesses in the fields of obstetrics, maternal-fetal medicine, neonatology, pediatric neurology, genetics, physical medicine/rehabilitation, and economics. During closing arguments, plaintiff’s counsel sought damages ranging from $26 million to $36 million. The jury returned a defense verdict in just 23 minutes.

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.

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.

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.