News

New York Team Achieves Unanimous Defense Verdict in High-Exposure Labor Law Trial

Thomas Comer (Partner, New York), Thomas O’Connor (Associate, White Plains), and Judy Selmeci (Partner, New York), obtained a complete defense verdict on behalf of the client in Supreme Court, Nassau County before the Hon. Catherine Rizzo. The jury unanimously found that the client bore no liability in connection with plaintiff’s claimed Labor Law accident. Plaintiff, a 24-year-old demolition laborer at the time of the alleged incident, claimed that he sustained injuries as a result of a fall from a scaffold while performing interior demolition work. He alleged significant orthopedic injuries, including to his knee, spine, and shoulder, and underwent multiple surgical procedures, including a two-level lumbar laminectomy, a single-level cervical fusion, and a left shoulder arthroscopy. He further claimed total disability, with over $1,000,000 in alleged future lost wages. Plaintiff’s theory as to the client was not based on any actual involvement in the work, but on an effort to characterize the client as a “contractor” or statutory agent based largely on a permit issued in its name. The defense focused on a clear and targeted strategy: establishing that the client had no authority to direct, supervise, or control the injury-producing work. The evidence showed that the client did not perform work at the site, did not retain plaintiff or any subcontractors, did not receive payment, and had no role in how the work was carried out. Instead, the work was performed independently by others, without the client’s knowledge or involvement. During the charge conference, the team secured modified jury instructions to both PJI 2:216 and 2:217. Over opposition, the Court agreed to instruct the jury that it must first determine whether the client had the authority to supervise, direct, or control the work before considering any potential Labor Law liability. That framework was reinforced in the verdict sheet, which required the jury to address this threshold issue at the outset. At trial, the defense also highlighted significant credibility issues in plaintiff’s account, including his admission that he told medical providers he was injured in a bicycle accident. Through cross-examination and the testimony of a neutral medical witness, the defense established that plaintiff offered multiple, inconsistent explanations for this discrepancy. Following nearly four hours of deliberations, the jury returned a unanimous defense verdict, with the jury assigning 0% liability to the client.

Thomas W. Comer, Thomas C. O'Connor and Judy C. Selmeci

Karetsky and Comer Secure Summary Judgment for Site Safety Manager in New York County

Zachary Karetsky (Associate-New York, NY) and Thomas Comer (Partner-New York, NY) secured summary judgment and dismissal of all claims against Wilson Elser’s client, a construction site safety manager, in a personal injury action in the New York Supreme Court, New York County. The plaintiff alleged she was struck by fencing that fell from barricades along a temporary pedestrian walkway adjacent to an active construction site, suing the property owner and the general contractor. They, in turn, brought a third-party action against our client seeking contractual indemnification, breach of contract, contribution, and common law indemnification. Zach and Tom moved for summary judgment, arguing that the client never executed the proposed safety consulting agreement containing indemnification obligations and, regardless, owed no duty of care because a site safety manager without authority to control or stop work cannot be liable in negligence. The defendants opposed on various contract, insurance, and factual grounds.

The court granted Wilson Elser’s motion in its entirety, finding – consistent with First Department precedent – that the client’s role was limited to recommending safety practices and did not include site control. On that basis, the court held that there were no grounds to impose common-law negligence liability on a site safety manager lacking site control authority. Without a viable negligence claim, all third-party claims and cross-claims necessarily failed, resulting in complete dismissal in our client’s favor.

Zachary Karetsky and Thomas W. Comer

Robinson, Comer & Levasseur Secure Summary Judgment for a New York County, Transit Operators, and Driver in Personal Injury Case

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.

Noelle G. Robinson, Guy J. Levasseur and Thomas W. Comer

Comer and Brown Prove Alleged Injuries Not a Result of Client’s Negligence

Thomas Comer (Partner-New York, NY) and Christin Brown (Associate-White Plains, NY) obtained a defense verdict on behalf of a large international hospitality concessionaire, after a two-week trial in Ulster County Supreme Court. The plaintiff raised the demand from $2 million to $10 million just before trial commenced wile Tom and Christin maintained their top $250,000 offer throughout. The case involved a trip and fall in New York’s LaGuardia Airport. The plaintiff alleged she was struck by an ice box carried by our client’s employee and suffered physical and psychiatric injuries. She claimed she was unable to work and will likely need nursing care, and her now ex-husband claimed loss of services. Tom and Christin presented evidence that plaintiff’s symptoms were a result of a histrionic personality disorder, supported by an expert who testified that plaintiff’s orthopedic injuries were minimal, had mostly resolved and that some were preexisting and degenerative. The plaintiff’s treating neurologist confirmed that objective studies were normal. Further, over objections, the court permitted the introduction of the traumatic brain injury claim, which was diagnosed using DTI testing, which is not generally accepted by the scientific or medical community. Our defense neurologist, neuropsychologist and neuroradiologist testified that plaintiff did not sustain traumatic brain injury as a result of the alleged accident, while attributing plaintiff’s alleged neurological condition to preexisting histrionic personality disorder. A vocational rehabilitation specialist testified that the plaintiff is fully capable of working. Tom and Christin proved to the jury that our client and its employee were not negligent. The jury deliberated for eight minutes before returning a defense verdict. 

Thomas W. Comer and Christin Brown

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