Unanimous Defense Verdict, Ospina v MTA Bus Company

Partner John V. Wynne obtained a unanimous defendant’s verdict in the Supreme Court, Queens County case of Ospina v MTA Bus Company. Plaintiff, a 47 year old standee on the client’s Q66 bus route, testified that the bus stopped abruptly and violently twice during her ride, causing other passengers to be thrown against her and resulting in a torn rotator cuff as well as other claimed injuries. Mr. Wynne countered that plaintiff remained standing, failed to notify the bus operator, and, coupled with inability to estimate the speed of the bus prior to the stop and absence of other injured passengers, the evidence did not support her claim of the severity of the stops. Injuries: torn rotator cuff with arthroscopic surgery and cervical and lumbar bulging discs. Plaintiff was represented by Marder, Eskessen & Nass. Index Number 23646/2010, Hon Timothy Dufficy presided. Date of verdict: July 23, 2013.

Unanimous Defense Verdict, Sicignano v. NYCTA

A unanimous defense verdict was obtained in favor of the firm’s client New York City Transit Authority in the matter of Sicignano v. NYCTA,. Here, plaintiff, a New York City Firefighter, claimed that he was caused to fall while exiting the Prince Street subway station due to a defective railing which had become loose due to rusting. He had just responded to a track fire. Plaintiff’s claim was pursued under General Municipal Law 205-a, the so called “Firefighter’s Rule,” which allows recovery for injured firefighters where a reasonable connection to a code violation is proven and precludes the jury’s consideration of comparative negligence. Plaintiff sustained a torn rotator cuff and underwent two arthroscopic surgeries to repair it. Partner John V. Wynne argued that while the rust condition was present, it bore no reasonable connection to plaintiff’s fall. Plaintiff put testimony from Stanley Fine, .P.E. and Robert Goldstein, M.D.

Mark Collesano and Thomas Muldoon Promoted to Partner

Barry, McTiernan & Moore, LLC is delighted to announce the promotion of Mark A. Collesano, Esq. and Thomas Muldoon, Esq. as partners of the firm. Mr. Collesano and Mr. Muldoon excel as trial counsel in the field of insurance defense and are welcomed as members of the firm.

Paul McTiernan and Suzanne Halbardier selected as 2012 New York Super Lawyers

The firm is proud to announce that Paul McTiernan and Suzanne Halbardier have both been selected for inclusion to 2012 New York Super Lawyers - Metro Edition.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Super Lawyers magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.

2012 defense verdicts

Supreme Court, New York County — Roberto Lopez v City of New York

Summary Judgment

September 2012 — Partner Edwin Lambert prevailed on summary judgment motion practice on behalf of the firm’s client, Galb Realty Associates LLC, by decision of the Honorable Michael D. Stallman (Supreme New York, Index # 114910/09 – September 21, 2012) where plaintiff allegedly tripped and fell on a crack in the sidewalk along the perimeter of a sidewalk grating. The Court held that while Section 7-210 of the Administrative Code of the City of New York requires owners of real property within the City to maintain abutting sidewalks in a reasonably safe condition, 34 RCNY Section 2-07 places the responsibility for maintenance of gratings and the area extending 12” outward from the perimeter of the cover or grating on the owner of the cover or grating. 34 RCNY Section 2-07(b)(2) states that the “owners of covers or gratings shall replace or repair any cover or grating found to be defective and shall repair any defective street condition found within an area extending twelve inches outward from the perimeter of the cover or grating.”

Supreme Court, Queens County — Jessica Helmeset v MTA Bus Company

Summary Judgment

September 2012 — Partner John V. Wynne secured a dismissal on the merits in favor of client MTA Bus Company in the matter of Jessica Helmeset v MTA Bus Company, (Supreme Court, Queens County, Index # 700154/09.) Plaintiff Jessica Helmeset was a driver who claimed that she had the right of way and legally entered an intersection when her vehicle was struck by a bus operated by the MTA Bus Company. The bus operator, under oath, testified that he had no stop sign controlling his direction of travel. Barry, McTiernan & Moore obtained an independent orthopedic examination of plaintiff. It was determined that plaintiff’s claimed injuries did not rise to the level of “serious” as defined by New York’s Insurance Law section 5102.

Supreme Court, Queens County — Deborah Riviere v. MTA Bus Company

June 2012 — Partner John V. Wynne secured a defense verdict on June 25, 2012 in the matter of Deborah Riviere v. MTA Bus Company (Supreme Court, Queens County, Index # 24101-09.) Plaintiff was a passenger on a bus operated by defendant MTA Bus Company when an unlicensed livery cab struck the bus at its left rear wheel, propelling plaintiff to the floor of the bus. Plaintiff allegedly sustained a tear of the rotator cuff of the left shoulder, tendinosis of the supraspinatus tendon, a full thickness tear of the infraspinatus tendon and underwent arthroscopic surgery to the rotator cuff as well as a bursectomy and synovectomy. Additionally plaintiff claimed a left knee sprain with resultant decreased range of motion, a bulge at C5-6, herniation at C6-7, and lumbar strain and sprain. Hon. Martin Schulman found in favor of the firm’s client, the MTA Bus Company, and dismissed all claims against said defendant. Plaintiff’s demand had been $300,000. Defendant offered $0.

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

Summary Judgment

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 Judgment

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.

2011 defense verdicts

Supreme Court, Kings County — Dora Brisk v. Eichler's Inc. et al

September 14, 2011 — A Kings County jury returned a verdict for the defense on liability as against plaintiff, a 42 year old woman who claimed that, on February 3, 2009, around midday, while carrying her grandchild in her arms when walking on a Brooklyn sidewalk, she was struck and precipitated to the ground by virtue of the actions of defendant’s employee. Plaintiff contended that the Eichler employee, also transiting the same sidewalk, ran into her while carrying a load of books. Ms. Brisk underwent shoulder, elbow and wrist surgery. Defendants contended that plaintiff was not attentive to her surroundings, was rushing during a snow event, and was distracted. By reading the transcript of the (no longer available) defendant, and through the testimony of a weather expert (to emphasize that the conditions were greater than those of a “slight flurry”), defendant was able to persuade the jury that plaintiff did not undertake due care and that the defendant was not negligent under the circumstances. Prior to verdict, the insurer had offered a high-low ($300,000-$50,000) but plaintiff declined it. Justice Bernadette F. Bayne presided over the trial.

Supreme Court, County of Queens — Nidia Rodrigues v. NYC Transit Authority

August 10, 2011 — A Supreme Court, Queens County jury returned a unanimous defendant’s verdict in favor of the New York City Transit Authority as against a 62 year old factory worker who sustained a fracture of the second metacarpal of the dominant hand following a trip and fall accident, allegedly due to a defective condition of the TA stairs leading from the elevated train platform to stairs maintained by the TA. Plaintiff claimed five months of lost earnings due to the injury. Partner John V. Wynne represented the TA; the Honorable Janice A. Taylor presided.

Supreme Court, County of New York — Sampson v. NYC Transit Authority

January 26, 2011 — A New York County jury returned a verdict for the defendant New York City Transit Authority in the face of 31 year old plaintiff’s $2.5 million demand. This mother of three children originally claimed that she was caused to trip and fall due to a defective (unlevel) condition of the subway staircase. She sustained a torn meniscus, requiring surgery, as well as a L5-S1 herniation with laminectomy, fusion and foot drop, and alleged a significant work disability with special damages in excess of $155,000. During the course of trial, plaintiff admitted that she did not trip, but merely slipped on a wet step while wearing open-backed sandals and descending the subway stairs in the rain. Under the “storm in progress” doctrine, a party in control of the premises must be given a reasonable amount of time to remedy a dangerous condition. Plaintiff was represented by the firm of Morrison & Wagner; Roger P. McTiernan Jr. successfully defended the case for the NYC Transit Authority. The Honorable Carol E. Huff presided. Sampson v. NYC Transit Authority

Supreme Court, County of Queens — Luz Batista v. NYC Transit Authority

March 23, 2011 — A Supreme Court, Queens County jury returned a defendant’s verdict in favor of the New York City Transit Authority as against a 52 year old maintenance worker who required an ORIF for fractures of the olecranon and humerus following a trip and fall accident, allegedly due to a defective condition of concrete sidewalk one foot in front of the TA stairs leading from the elevated trains. Demand $350,000; $0 offer. Partner John V. Wynne represented the TA; the Honorable Janice A. Taylor presided. Luz Batista v. New York City Transit Authority.

Supreme Court, County of New York — Devino/Deberry v. NYCTA

June 14, 2011 — A Supreme New York jury returned a defense verdict in the matter of Devino/Deberry v. NYCTA tried before Justice Donna Mills. Plaintiff Devino claimed a cervical herniation with fusion, two months post accident; plaintiff Deberry had alleged a torn meniscus with arthroscopic surgery. Partner John V. Wynne successfully defended the Transit Authority against claims that the bus was traveling too closely to the plaintiffs’ minivan which became disabled in a bus stop. The bus was turning into the bus stop when the minivan’s operator opened his door into the bus.

Partner Jim Burbage presents CLE at the Mt. Vernon Bar Association

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.

Barry, McTiernan & Moore sponsors the Mid-Hudson Claims Association annual golf outing

The firm continues its support for local claims organizations when they were a sponsor at the 2011 annual golf outing. Pictures below (from left to right) are James Moran, Kevin Maguire, Alex Malino, Tom Leonard, Brian McTiernan and Tom Muldoon.

Claims Litigation Management annual conference 2011

Mid-Hudson Claims Association Annual Golf Outing 2011
(Left to Right: James Moran, Kevin Maguire, Alex Malino, Tom Leonard, Brian McTiernan and Tom Muldoon)

Barry, McTiernan & Moore Partner lends hand to New Orleans rebuilding

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

Claims Litigation Management Annual Conference 2011

Barry, McTiernan & Moore Partner Guest Speaker at Annual Asbestos Litigation Conference

Suzanne Halbardier, of Barry, McTiernan & Moore was a guest speaker at the 3rd Annual New York Asbestos Litigation Conference held June 10, 2011 at the Jumeirah Essex House hotel in New York City. The event featured a judicial panel with seven judges from across the Empire State and leading attorneys involved in New York asbestos litigation.

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