Partner Patrick W. Kenny Successfully Obtained a Spoliation Order in a High Exposure Labor Law Case

Partner Patrick W. Kenny successfully obtained a spoliation order in a high exposure Labor Law 240(1) matter where the plaintiff intentionally deleted his Facebook account after the defendant's requests both during discovery and at the plaintiff’s deposition that the social media materials be preserved. Brazenly, after exchanging only select Facebook Messenger exchanges, the plaintiff affirmatively moved for a protective order to prevent any further disclosure of his social media accounts. Mr. Kenny opposed and the Court ordered the plaintiff to produce the social media authorizations. However, the plaintiff had already deleted his Facebook account.

The Court ruled that plaintiff’s intentional deletion of his Facebook account, which included statements of co-workers regarding the accident and photos of the plaintiff at the gym after the accident, plaintiff was precluded from testifying at trial as to anything related to social media along with an adverse inference instruction at trial due to the destruction of the evidence.

This is an important decision because it shows that plaintiffs cannot play games with discovery rules surrounding social media and that BMM’s attorneys stand ready to move for sanctions against plaintiffs that do.

BMM Attorneys Have Been Named to the 2022 Super Lawyers and Rising Stars Lists

BMM is pleased to announce that six of our New York and New Jersey-based attorneys have been named 2022 super lawyers and 2022 rising stars for their excellence in a range of practice areas. Only 5% of attorneys in New York receive this distinction, reserved for those who have attained a high-degree of peer recognition and professional achievement.

The following attorneys are listed for Super Lawyers 2022:

Suzanne M. Halbardier

Alex Malino

Paul McTiernan, Jr.

Claire Rush

Richard Wedinger

Super Lawyers Rising Stars recognizes the top up-and-coming attorneys in the state who are 40 years old or younger, or who have been practicing for 10 years or less. No more than 2.5 percent of total lawyers are selected for inclusion in the Rising Stars list.

The following attorneys are selected for Super Lawyers Rising stars 2022:

Patrick W. Kenny

BMM Wins Appellate Victory in Labor Law Case

In a labor law case against our clients, the owner and general contractor of a job site, Partner Patrick Kenny was granted summary judgment and plaintiff’s Labor Law 240(1) and Labor Law 241(6) causes of action were dismissed. Plaintiff appealed the decision. Patrick then argued the case on appeal before the Appellate Division, First Department. The First Department dismissed plaintiff’s remaining common law negligence and Labor Law 200 claims following argument.

In this case, plaintiff tripped and fell after stepping over cross bracing in scaffolding to walk from one part of a job site to another, even though he testified he was aware of openings in the scaffolding for him. Moreover, there was nothing defective, broken or otherwise wrong with the scaffold itself and it did not shift when plaintiff tripped on it. The First Department found that the cross bracing was not inherently dangerous and that plaintiff was the sole proximate cause of his fall. They reasoned that as a result, plaintiff’s remaining claims failed as a matter of law.

This was an excellent result for BMM’s clients. It demonstrates that not every accident at a construction site in New York City is actionable.

Partner, Patrick W. Kenny Obtains Successful Risk Transfer on behalf of the Firm’s Property Client

Partner, Patrick W. Kenny, Esq., was successful in obtaining a tender acceptance from a tenant and their insurer for a client that owned the property on which plaintiff alleges he fell. Given the lease agreement between our client and the tenant, it was clear that sidewalk maintenance and snow and ice removal are the responsibility of the tenant. This formed the basis for Patrick to push the contractual risk transfer to the tenant. After months of back and forth with counsel for the tenant, and insurers for the parties at issue, an agreement was finally reached. This means that our client and its carrier are now protected by a further layer of coverage and the carrier does not need to continue paying defense costs to defend the suit. This successful risk transfer was accomplished against a set of facts that contain allegations of severe injuries. Plaintiff was 68 years old on the date of the alleged accident when he slipped and fell due to snow and ice on a sidewalk with an alleged defect, and as a result of falling on his side, broke numerous ribs resulting in hospitalization. While in the hospital the plaintiff experienced cardiogenic shock, a hemothorax, and underwent a heart valve replacement surgery. In addition, plaintiff is a medical doctor and claims he missed significant time from his vocation resulting in lost wages. Both liability and damages would have been costly to the client and its insurer to defend this matter, which makes this a noteworthy victory for our client and its carrier.

Partner, Patrick Kenny Achieves Excellent Result For Owner and Landlord Who Risked Personal Exposure

Partner, Patrick W. Kenny, obtained a dismissal of plaintiff’s complaint and contractual indemnification from co-defendant tenants in an alleged trip and fall action in Kings County (Brooklyn), a difficult jurisdiction for defendants. Plaintiff alleged that he tripped and fell due to a defective condition located on the border of a sidewalk and parking lot. He sustained a fractured ankle which required surgery and also underwent surgery on his lower back.

BMM represented the owner and landlord of the premises, and filed an appearance despite the client being in default for almost two years. After addressing the default and filing an appearance, Patrick pursued discovery expeditiously despite delays caused by the pandemic. Once he completed discovery, Patrick filed a motion for summary judgment which the Court permitted despite the earlier delays and untimeliness of the motion. Patrick argued that plaintiff had failed to identify the cause of his fall and therefore could not prove proximate cause as a matter of law. In addition, Patrick argued that the leases required the tenants to indemnify the owner-landlord. The court agreed and dismissed plaintiff’s complaint against the owner, and also awarded indemnity in the owner’s favor from both tenants.

Through his aggressive work on this case, Patrick was able to achieve an excellent result for the client who risked personal exposure given the earlier default. By careful analysis of the facts and contracts, as well as strategic motion practice, Patrick was able to turn a problem file into a victory.

Defense Association Of New York (“Dany”) Releases Ratings for The Judicial Vacancy on The New York State Court of Appeals

The Defense Association of New York (“DANY”), today released its ratings of the seven nominees recommended by the New York State Commission on Judicial Nominations to fill the Associate Justice seat on the New York State Court of Appeals that was vacated by the untimely passing of the Hon. Paul G. Feinman.

DANY’s 9-person Judicial Screening Committee was chaired by Barry McTiernan and Moore partner Claire F. Rush, current Vice President of the Defense Association of New York. Patrick W. Kenny, a partner at Barry Mc Tiernan and Moore and member of The Board of Directors of the Defense Association of New York also served on the panel. Other committee members included Glenn Kaminska of Ahmuty, Demers and McManus; Tom Liptak of Kenny Shelton Liptak Nowak; James Feretic, of Hannum Feretic Prendergast & Merlino, LLC; Andrew Zajac of McGaw, Alventosa & Zajac; Steven Dyki, Esq., Assistant Vice President of Litigation at Berkshire Hathaway Guard Insurance Companies; James M. Begley, Esq., recently retired Deputy General counsel for The Port Authority of New York and New Jersey; Orla Thompson of Cozen O’Connor; and Patrick Butler of Maroney O’Connor LLP.

The Committee rated the candidates after an extensive screening and interviewing process as follows:

HIGHLY QUALIFIED 

Hon. Anthony Cannataro – Administrative Judge of the Civil Court of the City of New York, and a Justice of the New York State Supreme Court, New York County.

Hon. Erin M. Peradotto, – Associate Justice, Appellate Division Fourth Judicial Department of the Supreme Court of the State of New York

Hon. Troy Karen Webber – Associate Justice, Appellate Division First Judicial Department of the Supreme Court of the State of New York

QUALIFIED

Michael S. Bosworth – Partner Latham & Watkins

Hon. Denise A. Hartman – Acting Justice of the Supreme Court, Albany County

Hon. Judith J. Gische – Associate Justice, Appellate Division First Judicial Department of the Supreme Court of the State of New York

Caitlin J. Halligan – Partner- Selendy & Gay

Barry McTiernan & Moore LLC Attorneys Recognized As 2021 Super Lawyers and Rising Stars

Barry McTiernan & Moore LLC is excited to announce six of our New York and New Jersey-based attorneys have been named 2021 Super Lawyers or 2021 Rising Stars across a wide range of practice areas.

The following attorneys were selected for Super Lawyers 2021 inclusion:

Suzanne M. Halbardier

Paul McTiernan, Jr.

Claire Rush

Richard Wedinger

Super Lawyers, part of Thompson Reuters 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 annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. No more than five percent of total lawyers in a state are selected for inclusion in Super Lawyers.

The following attorneys were selected for Super Lawyers Rising stars 2021 inclusion:

Patrick W. Kenny

Cara E. Manz

Super Lawyers Rising Stars recognizes the top up-and-coming attorneys in the state who are 40 years old or younger, or who have been practicing for 10 years or less. No more than 2.5 percent of total lawyers are selected for inclusion in the Rising Stars list.