Defense Association of New York (DANY) Names Claire Rush as President

Senior Trial Attorney and Partner Claire Rush was elected to serve as President of the Defense Association of New York (DANY) effective July 18, 2022. Prior to her becoming President, Ms. Rush established DANY's award-winning pipeline diversity program to empower economically challenged and diverse college students. The program has been extremely successful in not only offering participants a pathway to law school admissions, but also in placing them with internships offered by various members of the bench and DANY member firms. This program has won state-wide awards from The New York Law Journal for the most outstanding diversity program in an organization, and also received national recognition, receiving the Diversity Resources Institute (DRI) award for the most outstanding diversity efforts by a state-recognized organization.

Most recently, Ms. Rush was instrumental in the development of DANY's first intensive trial advocacy course, which included lectures from well-respected attorneys on all aspects of a trial, such as opening statements, witness examinations, and closing statements. Additionally, mock trials were conducted over the course of two weekends. The course was well attended and has been recognized as a fundamental program for training a new generation of junior defense attorneys to become trial advocates.

Ms. Rush specializes in the defense of high-exposure personal injury actions. She has received a Preeminent AV rating of 5.0 / 5.0 from Martindale- Hubbell and has been identified as one of the top personal injury defense attorneys in the Metro New York area by Super Lawyer Magazine and American Legal Media. Ms. Rush has been recognized by the Bar Register of Preeminent Women Lawyers, the New York Times, and AVENUE Magazine as one of New York City’s top women lawyers in the area of trial practice. She regularly lectures and writes articles about important substantive and procedural issues that impact the defense of personal injury litigation.

Ms. Rush has been published in DANY’s publication, the Defendant, and is a frequent lecturer of DANY. She also chairs the DANY Judicial Sub-Committee which screens candidates for judicial positions. For the first time, due to these founding efforts, DANY has interviewed potential Court of Appeals candidates as well as local judicial candidates, which earned DANY the opportunity to submit formal recommendations.

As DANY President, Ms. Rush plans to continue the commitment to creating opportunities for women attorneys and developing trial skills for junior attorneys.

Perrin Conferences Sexual Abuse Litigation and Coverage Conference features Suzanne Halbardier as a Speaker

Our firm is pleased to announce Suzanne Halbardier will be a speaker at the upcoming Perrin Conferences Sexual Abuse Litigation and Coverage Conference to be held on October 12, 2022, at the Sheraton New York Times Square Hotel. Hosted by Perrin Conferences, the leader in joint plaintiff/defense conferences, the event will include many opportunities for networking and will feature prominent plaintiff and defense attorneys, in-house counsel, and insurance professionals.

Ms. Halbardier will speak on a panel titled "Trends in Sexual Abuse Litigation and the Status of the Litigation". The session will cover New York Adult Survivors Act and Child Victim’s Act, Southern Baptist Church sexual abuse lawsuits, and Update on California sexual abuse cases.

Suzanne Halbardier serves as Barry McTiernan & Moore's Executive Partner. Ms. Halbardier has over 30 years’ experience defending manufacturers, retailers, distributors and suppliers in high stakes asbestos and talc litigation. She also handles sexual harassment, abuse, and molestation cases in foster care, school and security settings. Ms. Halbardier has tried many cases to verdict in New York state and federal courts. Ms. Halbardier was recently elected by the defense bar to serve as NYCAL Defense Liaison Counsel where she works closely with NYCAL Coordinating Judge, and Special Master, to coordinate discovery procedures, address ongoing issues on behalf of the defense bar and organize monthly defense meetings. For the last five consecutive years, Ms. Halbardier has been recognized as an elite trial attorney by the New York Times, New York Super Lawyers and New York Top Women Lawyers.

To view the agenda, register and book your hotel room please go to: https://www.perrinconferences.com/conferences/sexual-abuse-litigation-and-coverage-conference-3/

Ashley Johnston will be a Panelist at the National Asbestos Litigation Conference

Our firm is pleased to announce Ashley Johnston will be a panelist at the National Asbestos Litigation Conference, taking place on September 14-15 at the Charleston Place Hotel in Charleston, South Carolina. Hosted by Perrin Conferences, the leader in joint plaintiff/defense conferences, the event will include many opportunities for networking and will feature prominent plaintiff and defense attorneys, in-house counsel, and insurance professionals.

Ms. Johnston will be presenting on the topic: The Future of Talc Litigation. This session will focus on Techniques for Testing and Causation and Major Appellate Rulings in 2022 and the Impact Going Forward.

Ashley Johnston is an associate in the firm’s product liability and mass toxic tort department. Ashley actively defends product manufacturers, distributors, suppliers, and their insurers in cases involving high-risk exposures to asbestos and talc. Ms. Johnston is the co-author of Asbestos Gets A Makeover published in the April 2022 edition of CLM Magazine.

To view the agenda and register please go to: https://www.perrinconferences.com/conferences/national-asbestos-litigation-conference-3/

Partner John Wynne Achieves Summary Judgment and Dismissal on Behalf of Firm’s Client, MTA Bus Company

Partner John Wynne obtained summary judgment and dismissal of all claims in favor of the firm’s client, MTA Bus Company. The plaintiff alleged that she was a passenger on a bus which lurched forward and collided with another vehicle, resulting in back injuries that resulted in a spinal fusion. In this case, Mr. Wynne presented the testimony of the bus operator along with a video recording taken from the bus which demonstrated that the plaintiff and co-defendant vehicles’ claims that the bus abruptly entered traffic were false. The co-defendant, a motorist, told responding police that she swerved to avoid hitting the bus. Under cross-examination by Mr. Wynne, the co-defendant recanted her prior testimony and admitted to swerving to avoid another vehicle to her left while the client's bus was stationary. All claims against the MTA were dismissed as a result of the evidence and arguments presented by Mr. Wynne.

This is yet another successful result from Barry McTiernan & Moore, whose attorneys have a wide range of experience in high-profile and difficult liability cases.

Partner John V. Wynne Successfully Obtains Dismissal on behalf of Firm’s NYC Transportation Client

Barry McTiernan & Moore successfully obtained a dismissal of a lawsuit, where plaintiff’s counsel incorrectly pleaded the date of loss in the notice of claim and complaint against the firm’s client, MTA Bus Company. In this otherwise unreported accident, plaintiff’s counsel sought leave of the court to amend the pleadings to assert the correct date of loss more than two years after filing the initial complaint, and after most of the discovery had been completed. In opposition, BMM argued that when reviewing the data from the plaintiff's MetroCard, there was no proof of presence on the bus, and therefore the ability to conduct a meaningful investigation was denied to the client. Plaintiff's attempt to correct the pleadings more than two years later severely prejudiced the client's ability to investigate the claim within a reasonable period of time after the date of loss as required by Public Authorities Law. Following the court’s denial of plaintiff’s motion, Partner John V. Wynne then moved for dismissal of the complaint, which was granted in our client’s favor.

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.

New York Legislation Grants a Temporary Lift on the Statute of Limitations for Abuse Victims

Barry McTiernan & Moore Associate Attorney Samantha Perlowitz attended the Perrin Conferences’ virtual Sexual Abuse Litigation and Coverage Conference held on May 18, 2022. This conference provides a platform for thought leaders in sexual abuse litigation and coverage to advance the discourse on these important subjects. It also serves as an opportunity for defense and plaintiff attorneys, in-house counsel, and insurance professionals to network and share knowledge. This conference consisted of five separate sections covering topics such as Trends in Sexual Abuse Litigation, Status of the Litigation, Damages in Sexual Misconduct Cases, Early Litigation Investigation and Settlement, Status of Bankruptcies in Sexual Abuse Cases, and Insurance Coverage Issues.

In 2019, New York Legislature passed the Child Victims Act, which created a one-year lookback window for survivors of childhood sexual abuse to file claims otherwise time-barred by the statute of limitations. When the Child Victims Act window closed in August 2021 (deadline extended due to COVID), over 10K cases had been filed. New York Senate sponsors of the Child Victims Act also sponsored the Adult Survivors Act, Senate Bill S66A, which was signed into law on May 24, 2022. This law creates a one-year lookback window for survivors of sexual assault that occurred when the individuals were over age 18 to bring a claim against their abusers regardless of when the abuse occurred. Claims under the Adult Survivors Act can only be revived within a one-year window which commences six months from the effective date of the act. Civil actions brought during the one-year window that was previously dismissed due to being time-barred or for failure to file a notice of a claim shall not be dismissed on these grounds.

Barry McTiernan & Moore represents educational, municipal, and religious organizations being sued under the Child Victims Act. BMM continues to be at the forefront of this evolving area of law, developing leaders in the defense against such claims. Our CVA team is led by Executive Partner Suzanne Halbardier, who has over 30 years of experience defending high-profile claims of sexual molestation and abuse. Based on the nature of the claims, the firm has developed tailored defense strategies and constantly partners with our clients to achieve the best results.

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 Clients Received an Excellent Fast Result

Partner William Joyce and Associate Shorav Kaushik achieved a favorable outcome in a labor law case on behalf of our clients, a general contractor and the owner of a construction site. The insurer for the plaintiff's employer indemnified our clients for their attorneys' fees as well as funded a global settlement for our clients.

In this matter, the plaintiff fell from a height alleging that he was denied a scaffold to work from. The carrier for the plaintiff’s employer initially refused to fully accept our tender of defense on the basis that outstanding discovery might reveal the negligence of our clients. After the plaintiff’s deposition and aggressive posturing on our clients’ behalf, the plaintiff’s employer settled directly with the plaintiff resulting in a full resolution without any contribution from our clients or costs incurred on their behalf. In this case, BMM's clients received an excellent and fast result.

Summary judgement secured on behalf of firm client Lincoln Center for the Performing Arts

Managing Partner Alex Malino obtained a dismissal of a claim where plaintiff had failed to include the lawsuit in his bankruptcy filing. Alex represented Lincoln Center for the Performing Arts in a Labor Law case where the plaintiff sustained severe injuries. During the course of discovery, a background investigation found the plaintiff had previously filed Bankruptcy in the U.S. District Court for the District of New Jersey. As a result of this information, Mr. Malino obtained the bankruptcy docket and determined that the claim he was defending had not been reported during the bankruptcy proceedings.

Mr. Malino promptly moved for leave to serve an amended answer incorporating the affirmative defenses of lack of standing, lack of capacity to sue as well as judicial estoppel for the plaintiff failing to report this claim during the pendency of his bankruptcy. The plaintiff's bankruptcy was closed before the suit was filed some 14 days later.

Once it was known that the underlying general liability case was not reported to the bankruptcy court, there was no need to conduct all the discovery, saving our client and our carrier tens of thousands of dollars in legal and medical fees while dismissing the case. A thorough investigation, such as bankruptcies sweeps, is very important when handling these claims.

Barry McTiernan & Moore focuses close attention on key performance indicators such as the life cycle process, aggressive defense, and moving prior to discovery whenever possible.

Andrew Moschella to speak at The Association of Legal Administrators (ALA) 2022 Conference

Andrew Moschella, Controller of the firm, will take part in the Association of Legal Administrators (ALA) 2022 conference. BMM actively encourages leadership and continuous education for all employees, Andrew will present a course on Financial Management guiding attendees through the world of Financial Statements and Financial Reporting.

The Association of Legal Administrators (ALA) is the premier professional association dedicated to law firm leadership. The ALA provides professional development, peer communities, and operational solutions for law firm leaders. Those who want to demonstrate that they have mastered the knowledge, skills, and abilities to operate at a high level of expertise can achieve this by becoming a Certified Legal Manager (CLM).

The Conference will be in Kissimmee, Florida from May 15-18.

BMM’s Ashley Johnston Co-Authored Article Published In CLM Magazine – “Asbestos Gets a Makeover”

Ashley Johnston co-authored an article recently published in the April 2022 edition of CLM magazine. The article, titled "Asbestos Gets a Makeover", discusses why cosmetic talc litigation is paving a more dangerous path than traditional asbestos litigation.

Ms. Johnston is an associate in the firm’s product liability and mass toxic tort department. Ashley actively defends product manufacturers, distributors, suppliers, and their insurers in cases involving high-risk exposures to asbestos and talc.

Read the Full Article:  CLM Magazine April 2022

Partner Claire Rush Successfully Obtains Defense Verdict in a Jury Trial

Partner Claire Rush recently tried a case in Supreme Court Queens County where the jury deliberated for ten minutes before returning a verdict in favor of our client. Ms. Rush represented a major New York City entertainment venue. Plaintiff claimed that he slipped and fell on water and sustained a herniated cervical disc and torn left rotator cuff when he visited the premises. Ms. Rush utilized a series of demonstrative aids to show that plaintiff’s testimony about the amount and size of the alleged puddle was unbelievable as a matter of law. She additionally argued that even if the jury found that the plaintiff fell on water, the venue’s robust cleaning and inspection schedule mitigated against plaintiff’s claim of constructive notice. The jury quickly agreed with the defense arguments and returned a verdict in favor of Ms. Rush’s client. Where a case cannot be settled pretrial, BMM has tremendous trial attorneys such as Ms. Rush to present compelling arguments and obtain the best results for our clients.

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

Partner Lynda Liebhauser Achieves Early Settlement in High Exposure Case

Partner Lynda Liebhauser obtained an early and favorable settlement for the firm’s construction client in a Labor Law case. The plaintiff claimed that he stepped into a gap between scaffold platforms while performing painting work, sustaining multiple injuries including significant economic losses. A third-party action was commenced against the firm’s construction client, the plaintiff’s employer. The owner and general contractor also commenced a declaratory judgment against the employer and other trades on the job site.

After conducting a limited deposition of the plaintiff on liability issues, the parties engaged in early settlement discussions. The case was settled on favorable terms to our client and included a dismissal of the declaratory judgment along with a waiver of all costs associated with the coverage claims.

Achieving advantageous and early resolution is another example of the firm’s proactive approach. Life Cycle is an integral key performance indicator at Barry, McTiernan & Moore with attorneys like Ms. Liebhauser continuing to lead the way in facilitating early resolutions.

Managing Partner, Alex Malino will be presenting at the 2022 CLM Alliance Annual Conference

Barry McTiernan & Moore’s Managing Partner, Alex Malino will be presenting at the CLM Alliance Annual Conference on the session titled “The Early Bird.....Avoids Excessively High Settlements, Nuclear Verdicts, and Extra-contractual Claims!” The CLM conference will take place from March 23rd to March 25th., 2022 in Palm Desert, CA.

Session Description – “The Early Bird...Avoids Excessively High Settlements, Nuclear Verdicts, and Extra-Contractual Claims”

Most substantial exposures can often be mitigated at various stages throughout the claims process with aggressive, flexible handling. Learn the importance of effective claims handling right out of the gate. Presenters will share techniques to avoid a failure to discover material information while forecasting the multiple directions a claim can proceed. Recognize factors that could potentially turn what appeared to be a moderate exposure into something far more serious. These techniques will also assist in those cases where the claim turns into a significant one. This diverse panel will address different kinds of alternative dispute resolution and other strategies to create workable solutions to mitigate exposure.

Barry McTiernan & Moore appoints Lynda Liebhauser as New Jersey Managing Partner

Barry McTiernan & Moore is pleased to announce that Lynda Liebhauser has been appointed Managing Partner of the firm’s New Jersey office.

Lynda joined BMM as a partner in 2021, bringing over 20 years of litigation experience to the team. Her practice areas include premises liability, construction defect litigation, automobile liability, uninsured/underinsured motorist coverage, labor law, and professional liability. Numerous favorable outcomes have been achieved for her clients through her adept handling of cases through trials in various state and federal courts.

Lynda brings years of management experience to the position. As part of her new role, Lynda will be responsible for further integrating the New Jersey office into the BMM network. She will focus on client growth and development, technology improvements, as well as maximizing profitability for the firm. The appointment of Lynda Liebhauser affirms BMM’s commitment to clients, continued growth, and deepening the firm’s reach across the tri-state area.

Please send congratulations to Lynda!

Partner, Lynda Liebhauser to speak at the 2022 CLM Alliance Annual Conference

Partner, Lynda Liebhauser will be presenting at the CLM Alliance Annual Conference on the session titled “The Blame Game: Retail, Restaurant & Hospitality Edition”. The CLM conference will take place from March 23rd to March 25th., 2022 in Palm Desert, CA.

Session Description – “The Blame Game: Retail, Restaurant & Hospitality Edition”

Just like the popular CLM Magazine Blame Game series, we will produce information about actual jury verdicts including facts about liability and damages, as well as venue and other key elements, and offer opinions about the outcome, including soliciting participation by attendees. Verdicts will be from across the country and will focus on claims made against retail, restaurant, and hospitality businesses.

Partner, Claire Rush to speak at the 2022 CLM Alliance Annual Conference

Partner, Claire Rush will be presenting at the CLM Alliance Annual Conference on the session titled “New Strategies for Defending Questionable Spinal Fusion Claims”. The CLM conference will take place from March 23rd to March 25th., 2022 in Palm Desert, CA.

Session Description - “New Strategies for Defending Questionable Spinal Fusion Claims”

Senior-level claims officers, trial attorneys, and a board-certified radiologist will discuss innovative strategies for identifying and defending cases that are likely to result in spinal surgery and seven-figure demands. Learn how the spine works, the tell-tale signs that a spinal fusion surgery is in the offing, best practices for pre-trial discovery, strategies for mediation and trial, and rebutting themes related to COVID-19 isolation claims and reptile theory approaches.

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.