Larry Lum

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.
 

New York partners Larry Lum and Aviva Stein and White Plains associate Rachel Budofsky successfully defended New York’s largest health care provider serving New York City, Long Island and Westchester County in a premises liability action in Richmond County Supreme Court. The jury returned a verdict in favor of the Staten Island University Hospital following a one-week trial. The plaintiff claimed she seriously injured herself when she slipped and fell on fluid that she believed was leaking from an IV bag because she saw the empty bag and the tubing was laying in the puddle. Larry, Aviva and Rachel established that the plaintiff could not prove her assertion that the fluid was from the bag as opposed to another source and highlighted that when reported to the security officer, the plaintiff never mentioned the IV bag or her assumption that it came from the IV bag and only reported that she fell on a watery substance on the floor. The jury concluded that the plaintiff failed to meet her burden of proof with credible evidence to establish that the hospital created or had notice of the fluid on the floor before her fall and found no negligence on the part of the hospital. The settlement demand was $1.2 million before the defense verdict. 

Larry Lum (Partner-New York, NY), Aviva Stein (Partner-White Plains, NY) and Elizabeth Scoditti (Associate-New York, NY) obtained a defense verdict in a premises liability matter in favor of the largest health care provider in New York, in a Richmond County Supreme Court jury trial. The plaintiff was struck by a motor vehicle operated by a co-defendant while walking in or near a crosswalk at the hospital. The plaintiff claimed the roadway was inadequately lit, the crosswalk and traffic signs were defectively designed, and the roadway markings/ signs lacked sufficient conspicuity. Though two light poles in the parking lot near the accident location had been inoperable for years, Larry, Aviva and Elizabeth were able to present evidence that sufficient lighting had remained. After a week-long trial, the jury rendered a verdict in favor of the hospital. The settlement demand to the hospital was never less than $850,000 throughout the trial.

Larry Lum (Partner-New York, NY), Aviva Stein (Partner-New York, NY), Ben Greenfield (Of Counsel-White Plains, NY) and Elie Herman (Associate-New York, NY | Stamford, CT) obtained a unanimous decision from the First Department Appellate Division, upholding the dismissal of a lawsuit against the firm’s major arena client. The underlying case involved a spectator sitting behind a plexiglass barrier who was hit and injured by a hockey puck at the arena. The court relied on case law established by the firm more than 20 years ago regarding the applicability of the limited duty rule and upholding shielding protections in place. This case, handled by Larry, was the first appellate-level review of the enhanced shielding measures adopted by the National Hockey League in 2002.

Larry Lum (Partner-New York City) and Aviva Stein (Partner-White Plains) secured a unanimous defense verdict on behalf of New York’s largest health care provider in a slip-and-fall case involving a serious femoral neck fracture with surgery. Benjamin Greenfield (Associate-White Plains) assisted with trial preparation and submissions in Suffolk County, Supreme Court. The case could not have settled for less than $750,000, but a unanimous verdict was rendered by a Suffolk County jury in favor of our client on the issue of liability after 12 minutes of deliberations.

Benjamin Greenfield (Partner-Philadelphia, PA) and Larry Lum (Partner-New York, NY) convinced the Supreme Court of the State of New York, County of Queens, to grant their summary judgment motion on behalf of a premiere New York sports venue. The plaintiff alleged that a T-shirt was shot out of an air cannon at a “direct angle” to his location, which increased the ordinary risks inherent in the activity, and reported the incident to multiple news outlets. The court agreed with Ben and Larry that the plaintiff’s experience and keen observations of the air cannon operator at this and prior events reflect the open and obvious nature of the risk presented. The court also agreed that the plaintiff’s points raised regarding the “direct trajectory” of the shot making it more dangerous than other projections from the air cannon were speculative and insufficient to create a factual issue regarding the supposed “danger.” Further, the court noted that even accepting these allegations of a more direct angle as true, the plaintiff cannot prove that a more arced shot would have led to a different result. The court also noted that the plaintiff deliberately moved closer to the air cannon and placed himself in what he hoped to be the T-shirt’s direct path, which made his role as a participant even clearer and thus reinforces the application of the primary assumption of risk doctrine. Beyond being notable, this decision amounts more broadly to a favorable decision in the Assumption of Risk realm concerning what was an issue of first impression in New York regarding a patron being struck by a T-shirt projected into the stands.

Benjamin Greenfield (Partner-Philadelphia, PA) and New York City partners Joshua Cash and Larry Lum succeeded in convincing the Kings County Supreme Court, Civil Term, to grant their pre-answer motion on behalf of the largest casino operator in New York City, to dismiss plaintiff’s claims in their entirety, including the dismissal of plaintiff’s individual and putative class action claims. Essentially, plaintiff, by and through her counsel, set forth conspiratorial claims that the casino is engaged in a deceptive practice to deprive patrons of their loose change. The plaintiff alleges that after receiving her cash-out voucher from the machine at the casino, she was only paid out the amount in whole dollars, and was not paid the full balance due, including the cents. The plaintiff sought to represent a class of all casino customers who were similarly deprived of their loose change. Notably, plaintiff’s counsel appeared to be taking the lead from similar attempted class actions claims sought to be certified against at least two other casinos in other jurisdictions around the country. Ben, Joshua and Larry obtained dismissal of the multiple causes of action set forth in plaintiff’s complaint, including violation of New York Business Law §§ 349 and 350, Breach of Contract, Conversion and Unjust Enrichment, and relied successfully on affidavits from casino personnel and photographic evidence that demonstrated conclusively there was nothing misleading about the defendant’s practices and that any forfeiture of such change was plaintiff’s own deliberate choice. The court also was convinced to dismiss plaintiff’s proposed class action claims insofar as the class definition was overbroad, sought to certify what was effectively a sham proceeding (the court specifically referenced within its 15-page decision the adage that “the law does not concern itself with trifles”), and would not be composed of persons with identical interests.  

Larry Lum (Partner-New York, NY) and Stacey Seltzer (Of Counsel-New York, NY) obtained a unanimous defense verdict after a three-day liability trial in Kings County Supreme Court involving a slip and fall in an outdoor parking lot at a New York City client casino. The incident was captured on surveillance that was submitted to the jury, along with photographs depicting the allegedly icy location with plaintiff’s counsel arguing that the lot was undisturbed/ untreated and dangerous. On cross-examination of plaintiff’s meteorological expert, Larry and Stacey showed that the temperature never fell below freezing in the hours before the accident and that for ice to have formed in the area it would have had to have been “new ice” that melted and refroze, which was essentially impossible due to the temperatures. While there was no record of the snow removal company having been on the premises within 17 hours of the accident, we highlighted to the jury the efforts that were undertaken when the snow removal company was present, including establishing that sufficient remedial measures were employed. The casino’s director of operations testified as to the large amount of foot traffic the casino receives daily, the lack of any complaints in the area and the constant inspection protocols taken by security. Lastly, we stressed that plaintiff cut across a snowy embankment just prior to stepping down onto the parking lot surface where he fell, showing that if anything caused him to fall, it was his own actions. The plaintiff raised the demand from $250,000 to $500,000 just before trial commenced and we never offered more than $2,500 throughout the duration of the litigation. 

Larry Lum (Partner-New York, NY) and Stacey Seltzer (Of Counsel, New York, NY) obtained a unanimous defense verdict after a liability trial in Nassau County Supreme Court involving a slip and fall at a semi-enclosed parking garage at our client’s casino. The plaintiff claimed she fractured her knee and the settlement demand was $250,000. The fall was captured on surveillance at multiple angles and played for the jury several times, along with photographs submitted as evidence of the location at the time of the accident seemingly depicting wet areas throughout the garage. Our defense expert was able to show that he tested the area in several locations while wet and found each area to be sufficiently slip-resistant. On cross examination of plaintiff’s expert, Larry and Stacey were able to poke holes in their testing, including methods used to arrive at the findings. Prior to the charge conference, plaintiff’s counsel requested a spoliation charge be given to the jury due to the fact that only 30 seconds of surveillance had been preserved prior to the accident, and the judge refused their request. Despite an uphill battle due to the fall being captured on surveillance, a clearly wet parking garage with what appeared to be obvious grime/grease, and a likable and sympathetic plaintiff, Larry and Stacey argued that any theories as to how the wet/grimy condition arrived in the garage were merely speculative on the plaintiff’s end, and there simply was no dangerous condition that could be pinpointed. 

Larry Lum (Partner-New York, NY), Aviva Stein (Partner-White Plains, NY) and Elizabeth Scoditti (Of Counsel-New York, NY) obtained a favorable damages-only verdict in a premises liability case against  a member hospital of New York's largest health care provider in Richmond County Supreme Court, 13th Judicial District, New York. An earlier summary judgment decision found the client 100 percent liable for the plaintiff’s trip-and-fall accident over an exposed and protruding bolt on the pavement at the hospital entrance. Alleged injuries included three-level disc herniations in the cervical spine requiring anterior fusion surgery at C4-5 and disc replacement at C5-6; torn labrum and arthrodesis/non-union at the acetabulum requiring hip replacement surgery. Plaintiff’s counsel asked the jury to award a total of $3M in pain and suffering damages ($1M past and $2M future); the client elected to hand a jury a blank check less than a week before Christmas and refused to authorize any more than $500,000 to settle – which was never acceptable to the plaintiff. The jury rendered a verdict totaling $300,000 for past pain and suffering and $100,000 in future pain and suffering for the next 30 years of the 50-year-old plaintiff’s life expectancy. There were no claims for medical bills or lost earnings. The jury determination hinged on whether plaintiff was seeking to recover for preexisting issues or whether the need for surgeries to the hip and neck were only prompted by the accident, with the court charging both aggravation and susceptibility to the jury. 

Benjamin Greenfield (Of Counsel-Philadelphia, PA), Joshua Cash (Partner-New York, NY) and Larry Lum (Partner-New York, NY) succeeded in convincing the Supreme Court of the State of New York County of Bronx, Civil Term, to deny the plaintiff’s motion to certify its action as a class action on behalf of their client, the largest casino operator in New York City. The plaintiff was banned from the casino for smashing a gaming machine at which he was losing money (and his refusal to pay for the damage). The plaintiff attempted to certify his claims as a class action arguing that the casino improperly demands restitution and threatens arrest if patrons refuse to pay for the costs of repairs to the property they damaged. Ben, Joshua and Larry relied on NYS Gaming Bulletin #22, which required the casino to detain individuals suspected of damaging casino property and to conduct an individualized investigation into the actions of each patron. The plaintiff argued that the Bulletin was null and void and without legal effect as it was not filed in the office of the department of state, and that it denied those patrons due process. The Hon. Veronica G. Hummel, A.J.S.C., in an extremely notable manner, ruled that Bulletin # 22 is “a valid directive issued by the Gaming Commission that is legally binding on [the casino] and governs and authorizes certain actions by [the casino].” At the very early stages of this matter, the plaintiff’s attorneys attempted to force our client into an early settlement by having an article published in the New York Post.

New York Partner Larry Lum and Of Counsel Stacey Seltzer obtained a defense verdict for our client after a unified trial in New York County Supreme Court for an accident involving a motor vehicle operated by our client’s corporate executive in the course of his employment. The plaintiff claimed that our driver’s SUV, also occupied by two other corporate executives, sideswiped her vehicle on the driver’s side while veering into her lane as she was making a right-hand turn in Manhattan. We produced our driver and one of the corporate executives at trial and both testified that their vehicle maintained a straight path, and it was the plaintiff who caused the accident. We were able to highlight to the jury the credibility issues surrounding the plaintiff’s testimony from a liability and damages standpoint. The plaintiff claimed two fractures to her right hand for which she ultimately underwent carpal tunnel surgery. We were able to produce missing visit notes, the fact that the plaintiff had profound arthritis predating the accident, and that the carpal tunnel could be seen bilaterally further proving that it was a preexisting condition. Moreover, our expert witnesses all disputed that plaintiff even suffered a second fracture to her hand, casting doubt on the plaintiff’s expert’s findings. The plaintiff’s settlement demand before trial was $600,000, and her counsel asked the jury to award plaintiff $1.25 million in past and future pain and suffering.