PMT Delivers a Win – Forcing Plaintiff to Prove Her Case Results in Dismissal of Case

PMT Delivers a Win – Forcing Plaintiff to Prove Her Case Results in Dismissal of Case

By Thomas M. Bona and James C. Miller. Court: Supreme Court of the State of New York – Orange County Judge: Maria S. Vasquez-Doles Case Type: Slip and Fall / Premises Liability Caption: Estelle Brown, Individually, and Estelle Brown as Executrix of the Estate of et al v. Patriot Ridge Condo et al. Index No.: EF002053-2017 Decision Date: May 11, 2020 Decision: Summary Judgment As everyone is reminded during jury selection, there is a difference between making a claim and proving a claim.  At PMT, we pride ourselves in every case we defend on putting the plaintiff to their proof and challenging them to prove their case. A recent case in which we won summary judgment for our client illustrates this. In Brown v. Patriot Ridge Condominium, plaintiff fell on black ice near the end of her driveway on December 29, 2016. Plaintiff, a 73-year-old woman, suffered serious physical injuries. The testimony that we developed from the plaintiff, our client and non-party witnesses showed that it had rained earlier in the day and then freezing temperatures descended on the area shortly before the plaintiff fell. We established that in the area where plaintiff fell and throughout the condominium complex, there had been no ice an hour and a half before plaintiff’s fall, but that ice had developed throughout the condominium development during the course of that next hour and a half. We argued that there was no actual or constructive notice of the condition that would have provided sufficient time for our client to remedy the condition. In addition, we argued that there was a storm in progress so...
PMT Delivers a Win – Aggressive Litigation Rules the Day

PMT Delivers a Win – Aggressive Litigation Rules the Day

Court: Pennsylvania Workers’ Compensation Appeal Board Judge: Commissioner James Zurick, Concurred by Commissioners Robert A. Krebs, Sandra D. Crawford, and David Wilderman Case Type: Claim Petition in Philadelphia County, Philadelphia, PA. Caption: Angelina McInnis v. Clinical Care Associates of the Univ. of Pa. Health System Index No.: A19-0851 Decision Date: May 1, 2020 Decision: Appeal Board Affirmed WCJ Decision Denying Claim Petition Claim Petitions are difficult to win in Pennsylvania. The Pennsylvania Workers’ Compensation Act is remedial in nature and its purpose is to benefit the employee of the Commonwealth as a fair exchange for the employee relinquishing every other right of action against the employer. Thus, the WCA is to be liberally construed to effectuate its humanitarian objectives, and borderline interpretations are to be construed in the injured party’s favor. In McInnis, the employee filed a Claim Petition alleging a low back injury leading to back surgery arising from a fall on an icy sidewalk while she was waiting for an employer-owned shuttle bus to transport her to her car which was located in a lot used by the other employees. At first glance, one could think that this was a compensable claim since the employee was using an employer-owned shuttle bus to take her to a parking lot used in part by the employer’s employees when commuting to and from work. Investigation uncovered an extensive and active preexisting low back condition where the employee was seeking a pain management doctor a week before her work injury. The employee had several MRI studies before and after the alleged work injury. The employer’s IME physician testified there was no...
PMT Delivers a Win – Persistence Pays Off

PMT Delivers a Win – Persistence Pays Off

Court: Supreme Court of the State of New York Appellate Division: Second Judicial Department Case Type: Construction Caption: Nazrul Islam, Appellant, v. HPENY Housing Development Fund Company, Inc., et al., Respondents (and a third-party action). Index No.: 501699/15 Decision Date: April 29,2020 Decision: Case Dismissed, Affirmed on Appeal Persistence pays off. A recent case in which the Appellate Court affirmed dismissal of a case demonstrates the advantage that PMT brings to each case. In Nazrul Islam, Appellant, v. HPENY Housing Development Fund Company, Inc., et al., Respondents (and a third-party action), plaintiff brought an action claiming personal injuries as a result of a fall in the basement of a premises at which he was working. Following a number of repeated failures to abide by Court Orders, we served plaintiff with a 90-day Notice. Subsequently, we moved to dismiss all claims for plaintiff’s failure to prosecute. The motion was heard by Judge Larry D. Martin in Supreme Court, Kings County, who granted the motion in its entirety and dismissed the complaint. Plaintiff appealed the lower Court’s dismissal of the case, arguing that “law office failure” should excuse the default in complying with the 90-day Notice. In response, we argued that law office failure is not applicable and/or should not excuse the default in this case because the departing attorney was, in fact, still with the firm during the 90-day period, that one attorney’s failure to properly handle a matter cannot serve to excuse the law firm as a whole and that this is especially so here since this was an e-filing case and the 90-day Notice had been emailed to...
PMT Delivers a Win – Careful Reading of Contract Leads to Dismissal of Case

PMT Delivers a Win – Careful Reading of Contract Leads to Dismissal of Case

Court: Supreme Court, New York County Judge: Judge John J. Kelley Case Type: Subrogation for Property Damage Caption: Merrimack Mutual Fire Insurance Company a/s/o 11 East 22nd Street LLC c/o REM Residential v. Associated Fire Protection, Inc., Index No.: 160109/17REM Decision Date: March 5, 2020 Decision: Summary Judgment Was Granted Sharp attention to detail is why PMT lawyers get outstanding results for our clients day after day.  A recent case in which we won summary judgment for our client demonstrates the advantage that PMT brings to each case. In Merrimack Mutual Fire Insurance Company a/s/o 11 East 22nd Street LLC c/o REM Residential v. Associated Fire Protection, Inc.,  a subrogation claim, plaintiff insurer sought $200,000 paid to its insured for property damage, which, it alleged, was caused by our client, a plumbing contractor, during a regularly-scheduled test of the subrogor’s sprinkler system. A review of the applicable contract revealed that same contained a Waiver of Subrogation provision. PMT filed a Motion for Summary Judgment seeking to dismiss all claims based upon this provision. We argued that Courts repeatedly uphold Waiver of Subrogation clauses, finding that they merely allocate risk and don’t seek to exempt a party from liability. “A Waiver of Subrogation provision does not limit a plaintiff’s potential recovery; rather, it ensures that an injured plaintiff will be compensated and merely shifts the burden of compensation to an insurer.” PMT argued that this is exactly what happened in the instant matter: the contract required REM to have insurance, REM was insured by Merrimack, and Merrimack paid for the loss. REM has thus been made whole by its insurer...
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...
Pillinger Miller Tarallo, LLP Is Pleased to Report Some of Our Most Recent Trial Results

Pillinger Miller Tarallo, LLP Is Pleased to Report Some of Our Most Recent Trial Results

Trial Attorney: Lawrence J. Buchman (Nassau County) Larry Buchman of Pillinger Miller Tarallo represented a defendant driver in a civil case for personal injuries who had pled guilty to DWI and vehicular assault in the accident. The pedestrian plaintiff was demanding a mid six-figure amount over our client’s insurance which was lowered to $150,000 at jury selection. The essential evidence was that our driver was driving under the speed limit in the middle lane of a Nassau County highway when the pedestrian staggered into the car’s path over 100 feet from the closest crosswalk. The jury came back with an 80% verdict against the plaintiff pedestrian who had a blood alcohol level two times higher than our defendant driver and the pedestrian crossed a six lane highway while “jay-staggering or jay-stumbling.” Prior to receiving the verdict, the plaintiff accepted a nominal four-figure amount of money over the policy for settlement. Trial Attorney: Christopher G. Todd (Kings County) In this case, Plaintiff was struck in a crosswalk by a driver who ran a red light and fled the scene. The impact threw Plaintiff into the side of our client’s car, which was legally turning left in front of Plaintiff. Plaintiff sued our clients only, and did not attempt to identify the fleeing driver, nor pursue an MVAIC claim. Our pre-trial investigation was crucial in identifying and garnering the cooperation of a non-party witness who provided critical testimony at trial. At trial, there was a unanimous defense verdict. Trial Attorney: Robert J. Gironda (Richmond County) In this case, the insured driver stopped at a stop sign and then proceeded through the...