2010 defense verdicts

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.

BMM Partner fights for a defense verdict in asbestos trial

Dietz v. Fulton Boiler Works, Inc. Index No.: 105736/99
Supreme Court New York County

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.

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