iNews Issue 83 - In This Issue:

Trial Tips

Trial Tips - Preparing For The Retrial
by Frank Scahill
Frank Scahil
A re-trial following an appeal presents unique challenges for both plaintiffs and defendants. The time interval between the event, the first trial, the appeal and the re-trial can wreak havoc with either side's strategy. Witnesses can disappear, evidence lost, and more importantly, the recollection of events can blur over time. A defendant can take advantage of several pieces of this puzzle with a second trial. The record on appeal from the first trial is a significant advantage for the defense. The plaintiff and his experts are locked in by their testimony in the first trial and have little room to deviate from their prior testimony. The defense also knows what is coming. The record from the first trial lays out the plaintiff's entire proof on damages and highlights the weaknesses in  the plaintiff's case in chief.
Howard Greenwald from our office obtained a defense verdict on damages in September of 2012 in Nick Kercu v. Rosaline Zipprich, in Queens County Civil Court before Judge Healy. The plaintiff alleged a lumbar discectomy was causally related to a rear-end motor vehicle accident. On Appeal from an order denying the plaintiff's motion to set aside the verdict, the Appellate Term reversed and ordered a new trial in Kercu v. Zipprich, 48 Misc. 3d 143(A), 26 N.Y.S.3d 213 (N.Y. App. Term. 2015).
A defense verdict on damages was again obtained in the second trial on December 14,  2016. I have  attached the transcript with the direct and cross examination of the plaintiff's orthopedic surgeon, Dr. Phillip Rafiy, who performed the lumbar surgery.  On direct examination, Dr. Rafiy testified, based upon an MRI examination of the lumbar spine , performed 32 days following the subject accident, plaintiff's lumbar spine had "minimal, if any, degenerative changes," and that the "huge" herniation at L5-S1 and the herniation at L4-L5 were acute, and causally related to the subject accident. 
The surgery was done in January of 2009. Dr. Rafiy admitted he does two to three spinal surgeries a week and he had no independent recollection of the surgery for this plaintiff. Relying on his operative report, he testified that he had performed facetectomies and foraminotomies bilaterally, to obtain neural decompression at the L5-S1 vertebral interval. On cross examination we sought to prove the plaintiff's lumbar radiculopathy was due to hypertrophy, the degenerative overgrowth and over calcification of bone, and unrelated to the herniations of lumbar intravertebral discs.
The cross examination is worthy of a quick read and includes some highlights:
Q. There are no nerve endings in intervertebral discs, is that true, Doctor? In other words, there are no nerve endings in the disc itself, right?
A. Correct
Q. For the causation of radiculopathy, what you need is compression of the nerve at its root so it communicates pain along the course of the nerve; is that accurate Doctor?
A. That's more consistent and more accurate.
Q. And you found he (the plaintiff) had radiculopathy?
A. Yes, sir.
Q. Now in your (operative) report, you talk about the performance of bilateral facetectomies.
A. Yes
Q. The facet is the wing on the vertebrae, correct?
A. Yes
Q. The overgrowth of bone due to hypertrophy in the facet was compressing the nerve, and you decompressed the nerve by removing bone. Would that be accurate Doctor?
A. That's consistent.
Q. You talked about the performance of a foraminotomy. A foramen is an opening on both sides of the vertebrae in which the nerve passes through the canal?
A. Yes
Q.  And a foraminotomy is the boring out of that aperture, the foramen, because hypertrophy, the overgrowth of bone, is compressing the nerve as it's going through that opening; would that be true?
A. In part.
At this stage the surgeon has little room to allege causation. His classification of an "acute" herniation is directly contradicted by his own operative report and his testimony. A jury in this case, as in the 2012 trial, was not buying plaintiff's medical proof and his own surgeon admitted it on cross examination.
Read the full transcript here.

Results That Matter

Our Trial Attorneys promise results and we deliver! Below is a list of significant victories at trial for 2016, representing over $30 Million in exposure saved by our clients. Congratulations to our exceptional team of trial lawyers for outstanding results.

Congratulations to  Charles Mailloux for a damages verdict on December 16, 2016 in Queens County before Judge Healy in the matter of Carmene Laventure v. Denroy Ashmeade (Index No: 300150/16). Total damages awarded was $12,500, of which our percentage share was 62%. The verdict was below the offer to settle.
Congratulations to Howard Greenwald for a defense verdict on December 13, 2016 on damages in Queens County Civil Court before Judge O' Connor in NICK KERCU v. ROSALINE M. ZIPPRICH (Index No: 301232/09 ). The case was tried for a second time by Howard following a 2012 defense verdict and subsequent appeal.
Congratulations to Bob Brown for a defense verdict on liability on November 30, 2016 before Judge Landicino in Kings County in the matter of Anthony Jackson v. Letena Lindsay (Index No: 406/14).

Congratulations to  Isaac Dana for a Defense Verdict on liability on November 18, 2016 before Judge Martin in Kings County on ANAK HOWARD CANTON, MENELAS GHISLAINE and KERLINE ST. JEAN v HERMALYN McKOY, (Index No.: 18463/11).  
Congratulations to  Tom Craven for a Defense Verdict on damages on November 21, 2016 before Judge Genovese in Kings County in LISA PEREZ and DAVID ROSTEN v CURTIS GATZ, (Index No.: 16176/12).

Congratulations to  Tom Craven for a great result in Queens County on November 3, 2016 in  JESSICA CANELO v JONATHAN BEDOYA (Index No.: 19768/12) before Judge Lane. We had agreed to a summary jury trial with parameters of $40,000 to $296,000. The jury gave a $25,000 award. The low number was due to Tom's great cross examination and a thorough social media investigation.
Congratulations to  Tim Jones for a Defense verdict on the issue of damages before Judge Barbato in Bronx County on October 25, 2016 in  JESSENIA HERRERA PEREZ as Administrator for the Estate of FABIAN BAUTISTA v. KATHERINE P. RODRIGUEZ and SAMMY MARTINEZ (Index No. 310608/11).
Congratulations to  Gil Hardy for a Defense verdict on the issue of liability before Judge Bruno in Nassau County on October 25, 2016 in  NICOLE HOYT v. ROBERT H. HORD and WANDA E. HORD (Index No. 12075/2012).
Congratulations to  Paul Duer for a Defense Verdict in Queens before Justice Leslie J. Purificacion on October 21, 2016  in the claim of  SHAHEEN SADAF v. KAREN LOVIE and PARAGON APPRAISAL SERVICES, INC. (Index No. 702395/2014).

Congratulations to  Charles Mailloux for a Defense Verdict on damages on September 22, 2016 before Judge Thompson in Bronx County in Helen Torres v Abdoulaye Diaby, (Index No.: 310684/10). Despite Charles' efforts the Court set aside the verdict and an appeal is pending.
Congratulations to  Charles Mailloux for a great result on trial on July 22, 2016 before Judge Larry Love in Queens County in  Andrew Kohut v. Bruce Yudman (Index No: 3000370/15). The plaintiff was adamant he would take nothing less than $450,000 to settle the case. After cross examination he accepted $35,000.
Congratulations to  Paul Duer  a defense verdict in the case of  ISMAEL ABREAU v. FORTUNE DONUT CORP.  (2343/2014) on July 15, 2016 before Judge Ritholtz in Queens.
Congratulations to Tim Jones for a defense verdict on July 7, 2016 in Bronx County before Judge Barbato on the issue of liability in  CHRISTINE WILLIAMS v. DONALD CARROLL (300777/2013).
Congratulations to  Chris Amato for a defense verdict on the issue of liability on July 6, 2016 in Richmond County before Judge Desmond Green in  BECKY MORALES v. MIRJANA SCARSELLI (100391/2014).
Congratulations to  Paul Duer for a Defense Verdict in Queens County Civil Court on June 16, 2016 JERMAIN MORGAN v ZIE JIE HE and KAR WING SUPPLY, INC. (Index Number 300922/15)
Congratulations to  Gil Hardy for a defense verdict on April 12, 2016 in Nassau County on the issue of liability in  EDMUND DAILY v. ROBERT J. AURICCHIO (Index Number: 2380/2013) before Judge Edward Maron.
Congratulations to  John Danzi for a great result in Kings County on April 22, 2106 in  Campbell v. Roland (Index Number: 11831/2013) before Judge Velasquez. A $5,000 verdict was returned for the plaintiff with a 50/50 split on liability. The plaintiff Campbell claimed injuries including bilateral medial first rib fracture; right eighth and ninth rib fractures; and right traumatic pneumothorax.
Congratulations to  Tom Craven for an outstanding result in  Johnson v. Yang  in Queens County (Index No: 703829/13). On a trial with $1.3 million in exposure, the verdict for pain and suffering came in at $150,000, less than the offer to settle.
Congratulations to  Charles Mailloux for a Defense verdict on March 15, 2016 on the issue of liability before Judge Barbato in Bronx County in  Esprit Haynes v. Charlie M. Daniel (Index No: 22254/12).
Congratulations to  Isaac Dana for a defense verdict on March 9, 2016 on a damages trial in Kings County before Judge Mark I. Partnow in the case of  Susan Bieli v. Eric Taylor (Index No: 22915/10). 
Congratulations to  Tony Graziani for a defense verdict on February 29, 2016 in  Self v Moehringer (Index No: 31234/13) on the issue of liability before Hon. Andrew G. Tarantino in Suffolk County.
Congratulation to  Frank Scahill for a defense verdict on damages on March 11, 2016 before Judge Martin Ritholtz in Queens County in  Jose Rivera v. Lloyd Lampell (Index No: 16240/13).
Congratulations to Frank Scahill for an excellent result on a damages trial before Justice Tarantino in Suffolk County on February 11, 2016 in the matter of Dr. Nirmala Patel v. Joseph DeSena (Index No: 24191/13). In a damages trial with an RSD claim and serious leg fractures, with $3,500,000 in exposure, the verdict was limited to $392,500, a figure that could have settled the case years before the trial.  
Congratulations to  Tim Jones on a Defense Verdict on damages on February 4, 2016, before Judge Sherman in Bronx County in  LAZARO JOEL MONTAS v. SALLY H. ABOUEL-ELA (Index No. 305620/10). The plaintiff underwent a right shoulder arthroscopic subacromial decompression on February 10, 2011. In addition, the plaintiff had a left knee arthroscopy on June 10, 2010. We found him on social media on the roster for the Bronx Astros for the Men's Adult Baseball League. He was a catcher and last played in the summer of 2014. He admitted on cross examination to more stolen bases post his surgeries than MRIs.
Congratulations to  Isaac Dana for a defense verdict on February 2, 2016 on a summary jury trial before Judge Vaughn in Kings Co. in  JORGE CENTENO v CARMINE TEPEDINO and JESUS FELICIANO (Index No. 18391/12). The Judge directed a verdict in our favor and let us out of the case.
Congratulations to Frank Scahill for a defense verdict on liability on January 12, 2016 before Judge Graham in Kings County in Jose Castillo v. Rev. Otto Garcia (Index No: 501899/12).

Appellate Wins:

2016 was a busy year for our Appellate Department led by  Andrea Ferrucci . Twenty-five appeals have been filed this year with decisions pending. Appellate Victories in 2016 include a trip to the Court of Appeals in  Castiglione v. Kruse, 27 N.Y.3d 1018 , a decision in our favor with important implications for the defense bar. Absent the reversal on appeal by the Court of Appeals, a plaintiff pedestrian was relieved of the duty of care required after stepping off the curb with a traffic signal in their favor. As Justice Dillon pointed out in his dissent in the Appellate Division, ( 130 A.D.3d 957), " In addition to overlooking crucial facts and ignoring controlling precedent, the majority, in my view, creates new law that is untenable. In essence, the majority holds that as long as a pedestrian looks both ways and steps off a curb with the traffic light in his or her favor, the pedestrian is relieved of any further duty of care while crossing multiple lanes of traffic on a dark and rainy morning, without need to ever look again left or right, and be oblivious to one's broader surroundings. That proposition is not now and never has been the law."

The cases won in 2016 listed below represented a $6 million exposure to our clients. Congratulations to Andrea and her team for some great results!

Castiglione v. Kruse, 27 N.Y.3d 1018, 52 N.E.3d 243,  re-argument denied, 28 N.Y.3d 941, 60 N.E.3d 403 (2016)
Giovenco v. Abeshouse, 136 A.D.3d 744, 24 N.Y.S.3d 531 (N.Y. App. Div. 2016)

Hartsuff v. Michaels, 139 A.D.3d 1005, 33 N.Y.S.3d 333 (N.Y. App. Div. 2016)

Joseph v. Interboro Ins. Co., No. 2014-09404, 2016 WL 6991718 (N.Y. App. Div. Nov. 30, 2016)

Leonard v. Pomarico, 137 A.D.3d 1085, 27 N.Y.S.3d 670 (N.Y. App. Div. 2016)

Estate of Mirjani v. DeVito, 135 A.D.3d 616, 24 N.Y.S.3d 263 (N.Y. App. Div. 2016)

Theo v. Vasquez,  136 A.D.3d 795, 26 N.Y.S.3d 85 (N.Y. App. Div. 2016)

Jung Hee Lee v. Viera, No. 2015-05314, 2016 WL 7109238 (N.Y. App. Div. Dec. 7, 2016)

Pena v. Spade, No. 2016-02260, 2016 WL 7224783 (N.Y. App. Div. Dec. 14, 2016)

No Fault and UM/SUM 2016 Results

No Fault, UM/SUM 2016 Results

In 2016, our No-Fault Practice Team saved our clients nearly $4 Million, by utilizing a proactive, cost effective and successful approach to handling and defending no-fault actions, filed in the various Courts and Arbitration forums in the State of New York. Our team is proficient in not only defending the matters based upon the obvious reasons identified on the face of the relevant documents, but has a keen eye for dissecting each and every assigned claim to ensure it has been accurately submitted and is in compliance with the applicable statutes, regulations and laws of each jurisdiction. This detailed approach provides our client with the ability to defend claims that have been improperly submitted, do not comply with the rules, regulations and statutes, are overinflated or are not subject to coverage.
Congratulations to David J. Tetlak  and our No-Fault Practice Area in prevailing in an Arbitration matter involving the issues of billing in accordance with the applicable fee schedules and compliance with the 45-day rule regulation. Applicant, an orthopedic facility, sought in excess of $80,000, for services allegedly rendered. After Respondent presented its evidence regarding proper reimbursement, pursuant to the applicable fee schedule, Applicant amended the amount sought to just under $50,000. Respondent insists that it did not receive a bill prior to 4/17/15 and Applicant maintains that the bill was submitted by mail on 3/2/15. Respondent's ECF contains a bill dated 4/17/15 that contains two stamps to the effect that the bill is "original" and "not a duplicate". Respondent's claims examiner submitted an affidavit attesting to his not having received the bill in issue prior to 4/17/15.  Respondent's Attorney asserted that Applicant's AR1 indicates that the bill was mailed on 2/5/15. However, the proof of mailing described in the billing manager's affidavit reflects mailing on 3/2/15.  Furthermore, the ECF contained a heavily redacted log sheet that bears a US Postal Service post mark of 3/2/15. We argued that these overly extensive redactions render the log virtually useless in establishing mailing on 3/2/15. The Arbitrator agreed, sustained the Respondent's positions and held that the Applicant failed to comply with the regulations regarding timely submission of the claim.
Congratulations to Mark Zemcik and our No-Fault Practice Area in prevailing in an Arbitration matter involving Applicant's failure to respond to Respondent's request for verification. Applicant sought reimbursement in excess of $9,800, for medical service allegedly provided to the Assignor.  Respondent asserted that there remained outstanding verification.  Applicant contended that it responded to Respondent's request and presented two proofs of mailing.  Respondent's counsel argued that it never received Applicant's letter.  Furthermore, the proof of mailing reflects that the response was sent by certified mail on March 15, 2014, three months prior to the date on the letter purported to be contained therein.  Therefore, the Arbitrator sustained Respondent's position that the response was never mailed by Applicant and never received by Respondent, as required by the applicable regulations.     
Congratulations to Mark Zemcik and our No-Fault Practice Area in prevailing in an Arbitration matter involving in excess of $93,000, due to the Applicant's lack of standing and failure to make a prima facie case.  Respondent argued that the Applicant did not submit a statutory no-fault claim, or a functional equivalent, did not upload an assignment of benefits form in its favor, uploaded an incorrect assignment of benefits, the services were provided at an accredited surgery center in New Jersey while the codes used are not allowed for an ASC according to the New Jersey Fee Schedule and other bills reflect the patient underwent surgery in New York, on the same day. Applicant withdrew this matter, after two hearings. 
Congratulations to Peter Caso and our No-Fault Practice Area in prevailing in an Arbitration matter involving nearly $10,000, due to a lack of medical necessity and lack of causation to the subject accident.  Respondent asserted, through competent medical evidence, that the subject medical services were for injuries unrelated to the accident. Respondent argued that the IME doctors clearly indicated that the injury was not related to the motor vehicle accident. Applicant has  failed to establish that the injuries were causally related to the motor vehicle accident. Furthermore, Applicant has also failed to establish that the treatment was medically necessary. Accordingly, Applicant's claim was denied, by the Arbitrator, with respect to this claim.
Congratulations to Albert Galatan and our UM/SUM Practice Area in prevailing in a case where the Respondent was struck by a car with diplomatic plates. The Respondent, having done no investigation, immediately filed for uninsured motorist benefits. Under international law, and several Geneva conventions, diplomatic plates can only be issued through the State Department and insurance is a compulsory requirement. After doing the research on the possible places, to determine who insured the vehicle in question, it was learned that there is a specific broker (Pharos Insurance brokers) handles almost all of the diplomatic insurance, which led to a specific carrier that also insures most of the diplomatic corps. However, in order to match the plate with a country, we had to contact the United States Department of State. We were able to ascertain that the car was insured through a valid insurance policy and owned by the Office of Cultural Services of France. Consequently, we were able to secure a speedy resolution for our client, without the necessity of a Framed Issue Hearing, as France recognized involvement and that their vehicle was covered. Thus, within four months of receiving the file, we were able to successfully and favorably resolve the issue for our client.

Appellate Decision of Note

Oates v New York City Transit Authority Affirmed on Appeal

The New York State Court of Appeals in Oates v. New York City Transit Authority (2016 NY Slip Op 07707) decided on November 17, 2016, affirmed the decision of the Appellate Division, First Department in a one sentence opinion, "The Appellate Division correctly determined that legally sufficient evidence supported the jury's findings of negligence and entitlement to damages for decedent's conscious pain and suffering." A verdict was entered in 2013 before Judge Ruiz in Bronx County awarding $300,000 for decedent Rachel Levy's conscious pain and suffering; $150,000 for plaintiff Hadassah Levy's past loss of custodial services, and $400,000 for her future loss of custodial services (over a ten-year period); and $100,000 for plaintiff Miriam Levy Oates's future loss of nurture, care and guidance (over a five-year period).  The verdict was sustained in the Appellate Division in Oates v. N.Y. City Transit Auth. , 138 A.D.3d 470, (N.Y. App. Div. 2016). A copy of the appellate division decision is attached.
Rachel Levy was found dead under one of defendant Transit Authority's buses. Her body was found lying face down on the southbound service road of the Henry Hudson Parkway in the Bronx, approximately five feet from the curb near the front of a bus stop. After an investigation, it was established, by DNA evidence, that the decedent was run over by bus 8865 operated by defendant New York City Transit Authority. 

Judge Tom in his dissent in the Appellate Division stated: "The bus driver, Vincent Brady, and the passengers in the bus at the time of the occurrence, did not see, feel or hear the bus come into contact with decedent. How decedent came to be run over is established by neither testimony nor physical evidence, and the conclusions advanced by plaintiffs' expert witness attributing negligence to defendant's driver have no foundation in the facts adduced at trial."

The majority in the Appellate Division stated: "While the bus driver had no explanation for how her body came to be there, plaintiffs' evidence, including DNA evidence matching samples recovered from the bus, was sufficient to support the jury's finding that the bus driver was negligent in operating the bus. The evidence showed facts and conditions from which negligence and causation could "be reasonably inferred" ( Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 320, 270 N.Y.S.2d 616, 217 N.E.2d 666 [1966] ). In particular, plaintiffs showed that decedent's body had been crushed by the bus at such an angle that the bus driver, pulling out of the bus stop, should have, with the proper use of his senses, seen decedent (see Klein v. Long Is. R.R. Co., 199 Misc. 532, 535, 99 N.Y.S.2d 50 [Sup.Ct., Kings County 1950], affd. 278 App.Div. 980, 105 N.Y.S.2d 999 [2d Dept.1951], affd. 303 N.Y. 807, 104 N.E.2d 364 [1952] ).  Oates v. N.Y. City Transit Auth., (supra).

The paucity of proof of negligence or conscious pain and suffering is the important aspect of this case. If the defendant was anyone but the Transit Authority, I suspect we would have seen a different result.

Read the decision here.


This newsletter is for education and information purposes only, and is not intended to provide legal advice. No attorney-client relationship exists or is created by the use of this newsletter or the information provided herein. This newsletter should not be used as a substitute for competent legal advice from a professional attorney in your state.


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