Barry McTiernan & Moore Obtains Pre–Discovery Dismissal, Twice

Managing Partner Alex Malino of Barry McTiernan & Moore represented a staffing company that was first sued in an action where the plaintiff claimed severe injuries to the back, hands, shoulders, and spine. Plaintiff asserted claims under New York Labor Law against the owner and general contractor, then the owner sued our client based on contractual and common law indemnity claims.

Initially brought in as a third-party defendant, BMM was able to effectively convince the third-party plaintiff that our client had no contractual privity, owed no contractual indemnity, and could not be sued as we were the plaintiff's employer in accordance with Section 11 of the Workers Compensation Law. As a result, pre-discovery, the third-party plaintiff agreed to discontinue with prejudice.

Nearly a year later, BMM’s client was brought in as a fifth party defendant when the party we were contracted with claimed we owed them contractual indemnification. In the fifth third-party lawsuit, the plaintiffs were operating under the wrong contract. Discovery was provided to the 5th party plaintiff in advance of serving an answer and we succeeded in persuading them that our proofs were accurate and true. Thus, BMM received the second stipulation of discontinuance on the case, the client remained dismissed with zero indemnity and a nominal legal spend.

The case illustrates how collaboration with the insured and the insurance company can lead to quick, pre-discovery, resulting in cost efficiency for all parties. Due to the fact that BMM was able to present the necessary evidence to counsel early and efficiently to get out of the case twice before further discovery was required, no indemnity was spent, and the legal spend was significantly below budget.

Barry McTiernan & Moore’s metric-based approach to litigation differentiates from other firms that churn through files. Our team is always seeking opportunities for a loss transfer or an opening out of a case pre-discovery and pre-legal spend. By following this strategy, Barry McTiernan & Moore’s clients and insurance partners are very pleased, with their loss runs remaining low. The firm’s commitment to providing strategic and efficient legal representation benefits all parties involved.