Supreme Court, Queens County — Julia Sanclemente v. MTA Bus Company

Summary Judgement

April 2012 — Summary judgment was granted to the firm’s client, the MTA Bus Company, by the Honorable Janice Taylor (Index # 33379/09 – April 20, 2012) after defendant moved to dismiss the Complaint due to plaintiff’s failure to have sustained a serious injury as defined by Section 5102 of the New York Insurance Law. Plaintiff, who alleged that she was struck by defendant’s bus while within a crosswalk, claimed multiple injuries including bulging discs at L4-5, L5-S1, C3-4, C5-6; Grade 1 spondylolisthesis of L4; spinal stenosis at L2-3; lumbar radiculopathy at S1, C6, disc narrowing at C2-3; left hip contusion and ecchymosis. Over the opposition of plaintiff’s counsel, Pazer, Epstein & Jaffe, arguing that the injuries satisfied the statutory requirement, and plaintiff’s cross motion for summary judgment on liability, defendant prevailed on both motions. During the pendency of the decision, plaintiff communicated a “high six figures” demand; no settlement offer was extended. Partner John Wynne obtained the favorable decision for our client.

Supreme Court, Queens County — Matter of J.B. v A.D. (in the interests of protecting the parties’ confidentiality)

Summary Judgement

March 2012 — The firm obtained summary judgment on behalf of a private school, where a student alleged that he was molested by a teacher. In dismissing plaintiff’s claim, the court ruled that the school was not negligent in hiring the teacher, nor was it liable for negligent supervision of the student and teacher. Suzanne M. Halbardier and David H. Schultz obtained the favorable decision for our client.

Supreme Court, New York County — John Zaugg v. Air & Liquid Systems, et al.

The firm obtained a defense verdict on March 13, 2012 in the case of John Zaugg. The plaintiff was a deceased man who had suffered from mesothelioma and was represented by the Weitz & Luxenberg firm. He alleged that he had worked on our client’s boilers and was exposed to asbestos from maintenance work on the boilers. Defendant disputed that it manufactured the boilers at issue, and argued that Mr. Zaugg had mis-identified the company. Defendant argued that the Department of Buildings records revealed a different manufacturer’s burner and boiler were approved for installation at the site. Plaintiff’s counsel disputed this, arguing that the records were vague and incomplete, and Mr. Zaugg’s testimony was more credible. After a nine day trial, the jury returned a verdict in favor of defendant, concluding that plaintiff had failed to prove that the boilers at issue were manufactured by the defendant. Suzanne Halbardier and Shawnette Fluitt handled the trial on behalf of our client. The matter was tried before Judge Judith Gische in New York County Supreme Court.

Civil Court, Queens County — Jacqueline Louime v. NYC Transit Authority

A unanimous jury found in favor of the New York City Transit Authority in the case of Jacqueline Louime v NYCTA. Plaintiff alleged that as a passenger on defendant’s bus, she was thrown to the floor when the bus negotiated a severely violent left turn. She alleged that as a result, she sustained a heart attack approximately thirty minutes later , requiring emergency bypass surgery and resulting in her continuing inability to work as a home healthcare aide. Plaintiff demanded $ 100,000 to settle the matter; NYCTA made no offer. Partner John V. Wynne successfully defended the claim on the grounds that absent some outside correlation of plaintiff’s testimony about the violent movement of the bus, plaintiff could not sustain a legally cognizable claim. The matter was tried before Judge Richard Latin in Queens County Civil Court, Index number TS300203-11 QU, on March 13, 2012.

Barry, McTiernan & Moore partner Jim Burbage presented a CLE program to the Mt. Vernon Bar Association, on June 23rd, 2011. The topic was “How To Protect Your Client From the Labor Law” and was geared toward attorneys that represent small property owners and developers in Southern Westchester. One significant topic addressed certain carrier’s policies that provide less coverage than an insured, or additional insured, might anticipate.

Alex Malino of Barry, Mctiernan & Moore, along with other legal professionals, lent a helping hand in the rebuilding effort of New Orleans post hurricane Katrina. Alex volunteered at the Claims Litigation Management annual conference in March to help clear various properties in the 9th ward. This was done in a an effort to attract local residents and commercial businesses back to the area and re-invigorate economic growth and rebuilding in the area.

Claims Litigation Management Annual Conference 2011

Supreme Court, County of Kings — Rotondi v. NY Presbyterian Hospital

On March 23, 2010, a King’s County jury returned a defendants’ verdict in a medical malpractice action, in favor of the cardiac surgeon and cardiologist who attended plaintiff, an 82-year old man with a history of heart problems. Plaintiff’s claims included a lack of informed consent concerning the installing of a pacemaker. As a result of compelling expert testimony, the jury found that defendants’ diagnoses and treatment did not depart from accepted medical standards. Plaintiff was represented by David P. Kownacki, P.C., co-defendant cardiologist by Louise Derevlany, Esq, and defendant cardiac surgeon by Edwin F. Lambert, Jr. and Patricia A. Sullivan of Barry, McTiernan & Moore. The Honorable Randolph Jackson presided.

Supreme Court, County of New York — Kim v. Kwan

On May 7, 2010, a New York County jury returned a verdict for the defendant plastic surgeon. Plaintiff was not satisfied with the outcome of surgery performed on his upper and lower eyelids, alleging medical malpractice and lack of informed consent. His claims included a “failure to perform an asymmetrical removal of skin” and “failure to reduce the ptosis of the eyelid.” The jury disagreed, thereby affirming defendant’s position that he is an expert in the distinct, specialized field of surgery upon Asian eyes. Plaintiff was represented by Steven Louros, Esq., and Defendant by Edwin F. Lambert, Jr. and Patricia A. Sullivan of Barry, McTiernan & Moore. The Honorable Karen S. Smith presided.

Supreme Court, County of Richmond — Church v. Staten Island Rapid Transit Operations Authority

In June 2010, defendant Staten Island Rapid Transit Operations Authority prevailed in an action commenced by a passenger of the Staten Island Railroad who claimed that, as a result of the sudden movement of the train car, she was caused to fall backwards and injure her right ankle. While it is the duty of a common carrier to use reasonable care to avoid sudden, unusual and violent jerks, lurches or stops (PJI 2:165) the jury found in favor of defendant. Notably, no other passenger on the allegedly “crowded” train had reported a fall or injury. Plaintiff was represented by Ameduri, Galante & Friscia; Defendant was represented by Mark A. Collesano of Barry, McTiernan & Moore. The Honorable Philip G. Minardo presided over this Supreme Court, Richmond County trial.

Supreme Court, County of Kings — Katz v. NYC Transit Authority

On September 15, 2010, a King’s County jury returned a defense verdict for the New York City Transit Authority. Plaintiff’s claim of negligence stemmed from a fractured hip allegedly sustained as a result of the subway doors having closed on her while she was boarding the train at the Rockaway Park Station in Brooklyn. The favorable jury finding was premised upon proximate cause issues; there was insufficient evidence that the defendant’s alleged negligence was the cause of the injury sustained. Plaintiff was represented by the firm of Sonkin, Fifer, & Gershon. Defendant was represented by Roger P. McTiernan, Jr. of Barry, McTiernan & Moore. The Honorable Karen B. Rothenberg presided.

Supreme Court, County of Richmond — Crystal Rivers v. NYC Transit Authority

On October 5, 2010, a Richmond County jury returned a defense verdict in favor of the Staten Island Rapid Transit Operating Authority. Plaintiff fractured her tibia and fibula while hurrying down stairs to catch a train. The jury was not persuaded by plaintiff’s position on the issue of negligence. Plaintiff was represented by the firm of Jacoby & Meyers, LLP. The defendant was represented by Mark A. Collesano of Barry, McTiernan & Moore. The Honorable John A. Fusco was the presiding Justice.

Supreme Court, County of New York — Dietz v. Fulton Boiler Works

On October 25, 2010, a New York County jury returned a verdict in favor of defendant Fulton Boiler Works, Inc. Plaintiff Arthur Dietz alleged that he was caused to develop mesothelioma, a cancer associated with asbestos exposure, due to his work in maintaining a Fulton Boiler he owned. Defendant argued that Mr. Dietz had developed his mesothelioma as a result of exposure to asbestos containing products used earlier in his career in the Navy, and at powerhouses and construction sites. The jury found that exposure to asbestos from Fulton’s equipment was not a substantial factor in causing Mr. Dietz’s mesothelioma. Plaintiff was represented by Danny Kraft, Jr. and Douglas Von Oiste of Weitz & Luxenberg. Fulton Boiler Works, Inc. was represented by Suzanne M. Halbardier and Shawnette A. Fluitt of Barry, McTiernan & Moore. Martin Shulman was the presiding Justice.

Supreme Court, County of Richmond — Rodriguez v. NYC Transit Authority

On November 22, 2010, a Richmond County jury returned a defense verdict in favor of New York City Transit Authority. Plaintiff, a passenger on an MTA bus, alleged negligence on the part of the bus driver as the cause of her having fallen from the back doors and sustaining a chip fracture in her ankle. Plaintiff sued defendant NYC Transit Authority under the doctrine of “respondeat superior,” under which the TA would have been potentially liable for the negligence of its employee. However, the jury unanimously determined there was insufficient evidence to find negligence on the part of the bus driver; therefore, a jury verdict was rendered. Plaintiff was represented by the firm of Ameduri, Galante & Friscia. Counsel for defendant was Mark A. Collesano of Barry, McTiernan & Moore. The Honorable Philip G. Minardo presided over the trial.

Supreme Court, County of Richmond — Bostros v. NYC Transit Authority

On December 2, 2010, a Richmond County jury returned a verdict for the defendant, New York City Transit Authority. Plaintiff, who had been seated in the first seat across from the driver, was injured when the bus mounted a curb after crossing the Verrazano Narrows Bridge. The defense argued that mere proof the bus jumped the curb, without more, was insufficient to raise a triable issue of negligence, where the driver had unexpectedly become ill. Counsel for plaintiff attempted to show that the bus operator had applied an excessive amount of denture adhesive that morning and that the melting of that adhesive had caused him to choke on his dentures, leading to a blackout. The jury was charged on the “emergency doctrine,” (notably, there were no prior instances of lost consciousness); a defense verdict was rendered. The plaintiff’s attorney was Douglas Herbert, Esq.; counsel for defendant was John V. Wynne of Barry McTiernan & Moore. The Honorable Mary Kim Dollard presided.