WCM Wins Rare Defense Verdict in Hit in the Rear Accident Trial

After a three day trial in Supreme Court, New York County, Wade Clark Mulcahy’s Michael Bono and Dana Purcaro obtain a rare defense verdict on liability in a hit in the rear accident case in Smyth v. Murphy, Index number 157795/2013.

Plaintiff testified to being involved in at least ten on the job accidents spanning over two decades. In each accident, plaintiff injured his cervical and lumbar spine and received medical treatment for those injuries, often filing related lawsuits.

Defendant Murphy testified that on the date of the accident, she tapped Smyth’s sanitation vehicle in the rear while he was stopped at a yellow light on the West Side highway during light snowfall. There was one scratch on Mrs. Murphy’s vehicle and no evidence of any damage to plaintiff’s vehicle. Despite the light impact, plaintiff called an ambulance and was taken to the hospital for treatment of his long standing cervical and lumbar spine injuries.  Sometime later, plaintiff underwent cervical and lumbar surgeries by Dr. Lattuga.

During the trial, the defense raised a number of credibility issues, including the apparent failure of plaintiff to inform his physicians about the number of prior accidents he had been involved in, including multiple accidents close in time to the 2013 accident at issue.  In addition, the defense presented proof that a prior MRI scan was the same as a scan taken shortly after this accident.  After brief deliberations, the jury returned a  verdict in favor of the defendants.  Please write to Mike Bono if you have any questions or wish to discuss this case further.

Wade Clark Mulcahy LLP Victorious in Binding Arbitration

Partner, Vincent Terrasi recently secured a win at a binding arbitration in the case of Scuorzo v. Safdar, et. al.  Scuorzo was a pedestrian struck by a black livery car in Manhattan in 2010.  The black livery car claimed that it was caused to hit the pedestrian due to the negligent operation of an ambulance that entered an intersection against a red signal. The ambulance driver activated an air horn in the direction of the livery car, startling the livery driver, which resulted in evasive actions that led to the accident.  WCM represented a black car dispatch company and the sole legal theory against the base was that they were vicariously liable for the acts of the driver on a theory of respondeat superior.

After 7 days of jury selection, the defendants settled with plaintiff and resolved the liability dispute amongst the defendants over the course of a two-day binding arbitration.  While fault for the accident was apportioned between the two drivers, WCM proved that the base was not an employer for the purposes of vicarious liability, resulting in a complete win for WCM’s client.

WCM Acting Pro Bono Obtains Permanent Asylum for Persecuted Kakai.

Thanks to WCM’s pro bono efforts, a 32 year-old man fleeing severe religious persecution in Iraq was granted asylum by the New York Asylum Office.

The young man, “KA,” faced religious persecution for being a member of a small religious minority in Iraq called Kakai (also known as Yarsinism). In Iraq, KA received many death threats from religious extremists due to his faith all throughout his education.  KA eventually became a physician in Iraq and frequently was not allowed to treat patients because of his faith.  KA’s family was forced to flee their homes due to the strong presence of ISIL in the community and KA’s own brother was murdered by ISIL for being Kakai.

Fortunately, KA applied for and received a scholarship to study health administration at a small university in Pennsylvania in 2013.  While awaiting his asylum interview, he graduated and received his master’s degree in Health Administration in May 2016.

Attorneys Robert Cosgrove, Chelsea Rendelman, and WCM staff provided pro bono legal services for this case by preparing the asylum application, crafting the affidavit, evaluating and compiling supporting evidence, researching country conditions, obtaining a US work authorization, and preparing for and attending the asylum interview.  Our submissions focused on our client’s past persecution as well as his well-founded fear of future persecution based on his religious beliefs.  In October 2016, our client appeared for his interview at the New York Asylum Office and a decision was made nearly two years later. After carefully considering all of the evidence and determining that KA could not safely return home or relocate within Iraq, KA was granted indefinite asylum in the United States.

We will now focus our efforts on KA’s path to citizenship so he can continue his education and ultimately pursue his dream of becoming a doctor in America.

For more information about this post, or WCM’s pro bono activities, please e-mail ">Chelsea Rendelman, WCM’s Pro Bono Coordinator.

Wade Clark Wins Summary Judgment in Bouncer Assault Case (NY)

In Almendares v. Front Franklin Realty, Brian Gibbons and Chris Gioia recently obtained summary judgment for our client in an assault case venued in Nassau County.  The plaintiff alleged that he was assaulted by a bouncer at a Nassau County bar, and was hospitalized that evening.  Plaintiff alleged that he was punched in the face by the bouncer of the establishment, which caused him to fall down, hit his head, and be rendered unconscious.

Before the completion of depositions,we moved for summary judgment on behalf of the owner of the property, which leased the space to the bar, because our client was an “out of possession” landowner which did not hire or control the bouncer. The lease established that the property owner had nothing to do with the day to day operation of the bar.  Moreover, the owner asserted it did not hire or retain the bouncer.  The Court agreed with the argument of the owner, that further discovery would not change the clear and uncontroverted evidence that the property owner is not responsible for the bar owner, nor is it responsible for its employees or any assaults which may happen on its property.   Please email Brian Gibbons with any questions.

WCM Wins “Battle of the Experts” in Slip and Fall

Recently, WCM obtained summary judgment and a full dismissal of all claims against our client in Moran v. Levin, NY County Supreme Court, Index No.: 0151444/2016.  Brian Gibbons and Dana Purcaro prepared the motion, which Dana Purcaro argued before J. Cohen in NY County.

Plaintiff, who was working at our clients’ home as a housekeeper, slipped and fell on an exterior stairwell, and the fall was captured on our clients’ home security camera. Plaintiff sustained a severe fracture in her leg which required surgery and implantation of hardware.

Plaintiff conceded that it was raining at the time of her accident and that she failed to utilize the handrail, despite having knowledge of its presence. All parties conducted a site inspection with experts wherein measurements were taken, including tests to determine the coefficient of friction of the stairs, as they were made of smooth concrete.

Following the site inspection plaintiff exchanged their expert’s report which conceded that the stairs had a high coefficient of friction and that the stairs complied with the Residential Building Code. The expert then opined that despite that fact, the Court should find that the premises did not comply with accepted standards of safety due to the width of the stairwell (approximately 11 feet) and the fact that there was only one handrail. Our expert confirmed that the stairs were compliant with all applicable codes and rejected plaintiff’s claims that any other code should apply to our clients’ single family dwelling.

At oral argument, the Court rejected plaintiff’s expert’s claims that this home should have complied with other building code regulations and any claim that the placement of the handrail was in any way a contributing factor to plaintiff’s accident. Judge  Cohen granted our motion in its entirety and found that there were no questions of fact as to the safety of the stairs, the code compliance of the stairs, or as to whether the stairs were adequately maintained. Judge Cohen pointed to the video of the accident and said that it bolstered our position as it not only showed the stairs to be well maintained but showed plaintiff running down the steps without using the handrail or accounting for the obvious rain on the exterior steps.

This is an exceptional victory as typically a video of an accident is detrimental to a defense and Judge’s often will find questions of fact when there are two conflicting expert reports.   “Battles of Experts” generally refer to testimony before juries.  Here we were able to avoid the expense and exposure of a trial. (To date, no Notice of Appeal has been served.).


WCM Wins Summary Judgment on Premises Case in Queens

This past week, Wade Clark Mulcahy was victorious in its motion for summary judgment, absolving two homeowners of exposure in a sidewalk trip and fall case. Brian Gibbons and Chris Gioia prepared the motion, and Chris argued the motion before Hon. Ernest F. Hart of Queens County Supreme Court.

In, Calle-Gonzalez v. Borukhov, the Court ruled that our clients, homeowners in Queens, were entitled to summary judgment for a trip and fall which occurred on the sidewalk in front of their single family home.  Under New York City Administrative Code’s Section 7-210, liability for sidewalk defects is placed upon owners of the adjacent property.  However, Section 7-210 also provides for an exception of one-two or three family homes.

Judge Hart ruled that we demonstrated that unit was a single family, owner-occupied dwelling.  Additionally, the Court found that the owners had not made negligent repairs, nor had they utilized the sidewalk for a ‘special use’, two exceptions which would deny summary judgment.   Plaintiff’s claims will continue against the City of New York, and will focus on the issue of notice.  But, barring any appellate practice, our clients are out of this case permanently.

The tricky aspect of motions like this one involves plugging up any potential holes that could create a “triable issue of fact,” which could prompt SJ denial.  At argument, Chris Gioia left no doubt that our clients were not liable here, and the Court agreed.  Please email Brian Gibbons with any questions, or contact me on Twitter @bgibbons35.

This and That by Dennis Wade

Obstreperous is an adjective, meaning “noisy and difficult to control.”  Some key synonyms are disorderly, undisciplined and disruptive.

Defense counsel and claim professionals confront obstreperous adversaries every day.  So what is the best way to deal with uncivil conduct in litigated matters?  I can say for sure responding in kind only makes matters worse and lessens your chances of achieving your goals.  Worse yet, it risks creating a “record” that may prove embarrassing when your case is later judged by a jurist.  Virtually every legal publication, in every other issue, contains an essay stressing the importance of “Civility in the Practice of Law” – – and most judges take civility seriously.

But responding civilly to an obstreperous adversary is easier said than done.  But my general rule is this: Disarm with Charm.

The other day, for example, while attempting to conduct an Examination Under Oath – – and before my first question – – the policyholder’s attorney felt compelled to make a speech on the record, explaining what he viewed as the purpose of the proceeding.  I listened quietly to his diatribe which I viewed as wholly improper.  When he was finished, I began my questioning with a simple, “You stole my thunder.”  I then began to go through the preliminaries with the policyholder, giving credit to his attorney if he had rightly characterized the nature of the proceeding.  That simple beginning lowered the temperature in the room and allowed me to develop facts relevant and necessary to an ultimate coverage determination.

Likewise, at depositions, I like to think that all of my questions are proper (i.e., not compound, not confusing and the like).  But often the obstreperous attorney asserts ill-founded objections.  Rather than argue propriety with an adversary looking for a fight, I often say, “You’re right that question came out badly, let me re-frame it.”  By acknowledging potential merit in the objection, the adversary is thus disarmed and invariably the re-framed question is allowed – – and you get the information you want.

Disarming with charm is not akin to weakness.  Rather it calls to mind Napoleon who purportedly said that in order to rule, “You must put an iron hand in a velvet glove.”  It has since become a shorthand phrase for a person who appears civil but is determined, focused and has a hard fist of iron within.

And that’s it for this This and That.  If you have any strategies for dealing with the obstreperous adversary, please call or email Dennis.

WCM Prevails on Discovery Motion Seeking Supplemental IME (NY)

Earlier this year, Wade Clark Mulcahy helped set a new legal precedent in New York for a plaintiff’s disclosure of Facebook and other social media materials, in Forman v. Henkin. Partner Michael Bono argued that issue before the Court of Appeals, and you can read our post on the decision here.

But other discovery battles have continued on the Forman case, including a dispute about post Note of Issue medical discovery.  Today’s edition of the New York Law Journal published another WCM victory, on a motion prepared by partner Brian Gibbons and associate Nick Schaefer.  Plaintiff claims traumatic brain injuries, and other orthopedic injuries, stemming from a fall from a horse back in 2011.   Our neuro-psychiatrist, Dr. Jeffrey Brown, examined plaintiff in 2014 at our request.  But since that time, the Facebook litigation plaintiff initiated has caused significant delay of the trial;  and because plaintiff’s mental condition is constantly evolving, we consulted with Dr. Brown and determined that a second IME was necessary to properly evaluate plaintiff’s current condition, as opposed to her 2014 condition.

Generally, supplemental IME’s are ordered, and more frequently, consented to, when a plaintiff supplements his/her bill of particulars to allege new injuries.  Here, there was no supplemental bill of particulars, which prompted plaintiff to oppose our request.   But at her most recent deposition in 2017, plaintiff testified that her TBI-related symptoms are ongoing, and in some cases, worse.   This testimony placed her current mental health condition in issue, thereby entitling WCM and Dr. Brown to another IME of the plaintiff.

The Court’s decision is well-reasoned, and references the broad legislative intent behind CPLR 3101(a), where requested disclosure is “material and necessary” to defend the action.  Here, our fact-specific request for the IME was based upon consultation with our expert, before making the motion.  As a result, we will be more equipped to evaluate plaintiff’s current symptoms, as they apply to the 2011 injury, if and when this matter proceeds to trial.  This decision by the Court by no means wins the “war” that every litigated case often feels like;  but the decision is certainly a battle victory that will help us down the road.

Follow WCM on Twitter @WadeClarkLaw

Wade Clark Mulcahy LLP was founded in 1994 — long before LinkedIn, Twitter, Facebook, or regular use of email.   Some of us even recall writing term papers on typewriters, and doing legal research with — wait for it — books!   (We weren’t equipped to copy our grammar school reports from the internet.  Nope — we copied them from the encyclopedia!)

As technology progresses, WCM has continued to evolve.  More and more courts require mandatory e-filing, and we are shifting toward being a completely paperless law firm across our New York, New Jersey and Philadelphia offices.  Moreover, our law blog, Of Interest, has been active for years, providing weekly insights on current legal issues and cases that we think appeal to insurers and other interested parties.

If you enjoy our weekly blog posts, then follow us on Twitter @WadeClarkLaw, or check out our LinkedIn page, Wade Clark Mulcahy LLP.   We will be featuring similar articles and posts on Twitter, and occasionally commenting on news articles that are relevant to our industry.  And if you’re a regular #OfInterest reader, you know that Dennis Wade comments on This and That from time to time. We’ll tweet those as well.

And with regard to commentary on pertinent legal issues in the news (ala, “ripped from the headlines”) we will be adopting time-tested pub rules: No religion, no politics.  (There are certainly other social media where you can find your fill on that!)

Please contact Brian Gibbons by email (or while we’re at it, on Twitter @bgibbons35) with any questions.   Have a happy and healthy Labor Day weekend!

WCM Acting Pro Bono Obtains Permanent Asylum for Persecuted Christian.

Thanks to WCM’s pro bono efforts, a 32 year-old woman fleeing severe religious persecution in Pakistan was granted asylum by the Newark Asylum Office.

The decision resolves nearly a two-year-long-quest for permanent protection here in the United States.  The young woman, “SP,” faced religious persecution for being a Christian and possible death if she continued to practice her faith.  This case dates back to 2016, when a pregnant SP fled Pakistan after being beaten and threatened by religious extremists, leaving behind her husband and two young children.  In order to protect her own life and the life of her unborn child, SP managed to come to the United States to seek asylum.

Attorney Chelsea Rendelman and WCM staff provided pro bono legal services for this case by preparing the asylum application, crafting the affidavit, evaluating and compiling supporting evidence, researching country conditions, obtaining a US work authorization, and preparing for and attending the asylum interview.  Our submissions focused on our client’s past persecution as well as her well-founded fear of future persecution.  After an interview and hearing and careful consideration of all of the evidence, the Government agreed that SP could not safely return home or relocate within Pakistan.  SP was therefore granted indefinite asylum in the United States.

We will now focus our efforts on SP’s path to citizenship and securing asylum for SP’s husband and two young children who still live in Pakistan.  As lawyers, we feel an obligation to help those in need and we appreciate the opportunity to reunite this deserving family in order to help them move onto the next chapter of their lives.  We are thrilled with the outcome, knowing that this woman can now live in the United States in peace and out of harm’s way.

For more information about this post, or WCM’s pro bono activities, please e-mail ">Chelsea Rendelman, WCM’s Pro Bono Coordinator</a>.