Case by Case: Winds of Change? Second Department Adopts Tougher View of Safe Place To Work

Case by Case: Winds of Change? Second Department Adopts Tougher View of Safe Place To Work

In November 2017, at Pillinger Miller Tarallo, LLP (“PMT”), we predicted that the Court of Appeals under Judge Janet DiFiore would begin to interpret the Labor Law more favorably for the construction industry and insurance industry. This would signal to the rest of the New York courts that Labor Law matters should be decided in a more even-handed fashion. A recent case from the Second Department demonstrates that this may indeed be occurring. In Ochoa-Hoenes v. Finkelstein, 173 A.D.2d 1080 (2d Dep’t, May 2019), the plaintiff was injured at a construction site which involved the erection of a modular home owned by the homeowners Finkelstein. The modular home components were manufactured by Signature Builders, Inc., and the defendant Vesta Development Group, an authorized representative of Signature Builders, Inc., was hired by the Finkelsteins to perform construction management services for the project. At the time of the accident, the plaintiff was employed by an electrical contractor hired by the Finkelsteins. The accident happened while the plaintiff was preparing for the installation of lights in the home’s basement. After noticing that a stack of plywood sheets that had been placed against the basement wall was resting on the electrical wires, the plaintiff attempted to move the stack himself, which caused it to tip over and strike his right ankle and foot. Plaintiff sued alleging common-law negligence against the defendants based upon their alleged failure to maintain the premises and to provide him with a safe place to work, which is the same standard as is codified in Labor Law §200. Notably, there were no Labor Law allegations pled against the defendants....
Ice Storm in Progress

Ice Storm in Progress

Appellate Division Affirms Lower Court’s Grant of Summary JudgmentOn Basis of Plaintiff’s Own Testimony That There Was an Ice Storm in Progress Sometimes with summary judgment motions as with everything else, persistence is the key. Unfortunately, lower courts don’t always make the correct decision and sometimes, it is necessary to make a motion to re-argue when the Court makes the wrong decision. A recent case in which Pillinger Miller Tarallo, LLP won a summary judgment for the building owner we represented, is a good example of this and how a plaintiff’s own testimony can be used to defeat her case. In Perez v. The Pinnacle Group, plaintiff, who was a tenant in the building in the Bronx, went to the lobby where she was waiting for her son who was going to drive her to a church event on January 18, 2015, which would turn out to be one of the worst ice storms in the region’s history. While she was in the lobby, the plaintiff noticed that precipitation was falling. However, she was not aware that ice was falling. When the plaintiff’s son failed to appear, she decided to drive herself. The plaintiff exited the building and went to the parking lot where her vehicle was parked. As she reached the end of the sidewalk, she saw a ramp which led from a sidewalk to the street level and into the parking lot. The plaintiff took a step off the sidewalk onto the ramp with her right foot when she slipped. Prior to falling, the plaintiff looked down and saw small balls of ice. The plaintiff laid on...
New York Courts to Begin Presumptive Mediation for Civil Cases (ADR)

New York Courts to Begin Presumptive Mediation for Civil Cases (ADR)

By the end of this year, New York State Courts are set to have a system in place requiring civil litigation to attempt to be resolved through presumptive mediation, rather than in open court. This future transition to presumptive mediation will significantly impact how civil cases are litigated in New York State. In an effort to make court proceedings more efficient and cost-effective, New York State Courts are implementing new protocols to alleviate backlogs throughout the judiciary system. For years the New York judicial system has attempted to implement alternatives to in-court litigation with little success. New York courts are following New Jersey and Connecticut’s approaches to creating alternatives to in-court litigation for civil cases – presumptive mediation. New York State’s proposed system mimics that of New Jersey, which has been utilizing an automatic presumptive mediation program for more than a decade. Following the implementation of court-sponsored ADR in New Jersey, fewer than two percent of cases had a jury trial. Statistics from the New Jersey Administrative Office of the Courts show that a third of cases referred to mediation are resolved within the first session and 10 percent of cases settle within 90 days of the termination of mediation. Within the coming months, New York administrators will be working in tandem with the state’s administrative and trial courts to expand the number and scope of the court-sponsored ADR programs. In doing so, the Office of Court Administration plans to issue uniform rules for the program as the courts take advantage of the existing resources in place. The statewide program is expected to begin its rollout in September 2019....
PMT Announces New Partners Thomas M. Bona and James Freire

PMT Announces New Partners Thomas M. Bona and James Freire

We Are Pleased to Announce PMT’s New Partners Thomas M. Bona and James Freire. Each attorney is a talented advocate for the firm’s clients and has achieved their current position with persistent and successful work. Thomas M. Bona Tom has been a practicing attorney for over 35 years and joined Pillinger Miller Tarallo, LLP in 2019 as a partner at PMT’s Elmsford, NY office. Prior to that, since 1988 Tom was managing partner of Thomas M. Bona, P.C. with years of experience in insurance defense and coverage practice areas. Tom is admitted to practice in New York and has a wealth of experience in all types of civil matters including Construction/Labor law, Coverage Matters, Municipal Liability, Automobile, Dram Shop actions, and Premises Liability cases. See Tom’s Bio   James Freire Jim has been a practicing attorney since 1983. His practice over the last twenty years has been primarily focused on professional liability matters. He represents clients in construction work site injury claims, construction defect and property damage claims and environmental claims under the Navigation Law. His clients have included major construction companies, contractors and building owners involved in new construction and renovation projects. Jim has been involved in several high profile matters, including acting as lead counsel for a Fortune 500 company in a confidential mediation which involved 197 days of construction delays. See James’...
Independent medical examination observer notes are privileged

Independent medical examination observer notes are privileged

The First Department, Appellate Division, in March 2019, addressed an issue of the first impression and ruled that notes created by an observer of an independent medical exam (hereinafter “IME”) performed on an injured plaintiff are not discoverable because they are protected by the prepared-for-litigation privilege.  Markel v. Pure Power Boot Camp, Inc., 2019 NY Slip Op 02049 (2019). The Court indicated that this question needed to be addressed because of confusion in the lower Courts.  This decision was intended to “clarify whether, and under what circumstances, such materials are protected from disclosure.”  The Court in Markel examined this issue in the context of a case “which a personal-injury plaintiff had moved to quash the defendants’ subpoena duces tecum seeking IME observer notes.” In making their decision, the Court discussed the Plaintiff’s control and choice over the IME observer.  The purpose of IME observer is to “deter examining doctors hired by defendants from inquiring about matters beyond the scope of the particular action and keeps the IME process honest.” In Markel, Plaintiff alleged that she was forced to complete unsafe exercise practices at a gym owned and operated by Defendant, which caused her to become seriously injured.  Plaintiff alleged “serious, lasting and permanent injuries to her knee, among other injuries” and received medical treatment, including surgery. The First Department panel reversed the 2017 decision of the Supreme Court wherein the Court denied Plaintiff’s motion for a protective order to quash a subpoena duces tecum served upon the IME observer who accompanied the plaintiff to the exam performed by the Defendant’s orthopedist. The Appellate Division noted that there was no...

PMT Attorney Ernest J. Bernabei lll Obtains a Unanimous Defense Verdict

After an intense eight-day trial, Ernest J. Bernabei lll obtained a unanimous defense verdict in an attorney malpractice case in New Jersey Superior Court, Bergen County. Plaintiff, a New York immigration attorney, contended that our client, a real estate attorney, failed to protect him in closing on a parcel of land in which he intended to build a house. Plaintiff alleged that environmental restrictions caused him substantial additional construction costs and were not properly investigated and discussed by our client. Through heavy cross-examination of both plaintiff and his experts, it was established that the defendant had fully advised the plaintiff of the need for due diligence, including engineering inspection prior to closing. Most importantly, Mr. Bernabei was able to point out how the plaintiff repeatedly ignored advice, delayed his expert inspections, and was the sole cause of any issues with the construction. Mr. Bernabei raised numerous issues as to the plaintiff’s credibility by pointing out many contradictions and inconsistencies in his testimony, as well as many issues with his experts. Our damages expert effectively challenged the number of costs and causation. Our liability expert, as well as the client’s direct testimony, established a clear chronology of proper negotiation of due diligence language and handling of the closing. Ultimately, the plaintiff built a house with about 15,000 square feet of usable space. The plaintiff was seeking damages, along with fees, in the range of $1.4...