Montfort, Healy, McGuire & Salley Wins Motion for Summary Judgment on Appeal

Michael A. Baranowicz, Donald S. Neumann, Jr., and Christopher T. Cafaro were successful in arguing the Supreme Court of Suffolk County’s decision to grant summary judgment in their favor should be affirmed in a personal injury manner.

 
The case was brought by an individual who was riding his motorcycle on Montauk Highway when he was allegedly struck in the chest by a wire that had come loose from a utility pole. The contact with the wire caused the motorcyclist to fall off his motorcycle and sustain injuries.  The individual brought an action against Verizon New York (represented by Montfort, Healy, McGuire & Salley) as they owned the subject utility pole along with additional defendants.  The additional defendants included DF Stone Contracting, Ltd., who was performing work in the location of the accident; Nelson & Pople, LLP, the engineering consultant on the subject project; and the County of Suffolk, the owner of the sidewalk and roadway in the area of the accident.

 
The Supreme Court of Suffolk County granted summary judgment in favor of Verizon New York along with the defendants Nelson & Pope, DF Stone Contracting and the County of Suffolk.

 
On appeal, the attorneys from Montfort, Healy, McGuire & Salley were successful in arguing Verizon New York was not liable for the motorcyclist’s injuries.  The Second Department found that the attorneys made a prima facie showing that they did not create the hazardous or defective condition.  Additionally, they found that Verizon New York had no notice of the existence of the downed wire.  Because the plaintiff was unsuccessful in raising an issue of fact, summary judgment was affirmed in favor of Verizon New York.

 
As for the other defendants, the Second Department noted that DF Stone was allegedly performing work at the time of the accident, and had been unloading asphalt from a dump truck whose bed, when fully extended, reached above the height of the wire which caused plaintiff’s injuries.  The court found that in their motion for summary judgment, DF Stone failed to eliminate any question of fact as to whether it created the dangerous condition.

 
For defendant N&P, the Court found that they made a prima facia showing that it did not have control over the work site or actual or constructive notice of the dangerous condition. The Court elaborated, stating that N&P’s right to generally supervise the work and stop the contractor’s work if they are aware of a safety violation, does not amount to the supervision and control of the work site that would hold them liable for the negligence of the contractor performing the day to day operations.  The plaintiff failed to raise an issue of fact regarding N&P’s control for the contractor.

 
Thus, the Second Department modified the Order of the Supreme Court of Suffolk County, denying the motion for summary judgment of DF Stone and affirming the decision to grant summary judgment to Verizon, N&P and the County of Suffolk.

 
To read a full copy of the decision click here.

Montfort, Healy, McGuire & Salley LLP Welcomes Jennifer J. Maldonado as a New Associate

GARDEN CITY, NEW YORK — Montfort, Healy, McGuire & Salley LLP (MHMS) has announced that Jennifer J. Maldonado has joined the firm as an Associate. She will serve in the firm’s Medical Malpractice Department. Prior to joining the firm, Ms. Maldonado worked for a respected medical malpractice defense firm in Manhattan.

 

Ms. Maldonado also served as an Assistant District Attorney with the Bronx County District Attorney’s Office. During her time there, she prosecuted various crimes and gained valuable courtroom experience as she conducted numerous hearings and tried cases to verdict. She was also selected as a Team Leader of the Criminal Court Bureau, where she assigned lower-level misdemeanor cases to new Assistant District Attorneys and strategized with newer attorneys on how to effectively try cases.

 

Her legal experience also includes serving as a Judicial Intern for the Honorable Arthur D. Spatt and as a Legal Extern with the City of Long Beach Corporation Counsel’s Office and the New York City Law Department.

 

Ms. Maldonado graduated from the University of Scranton with a Bachelor of Science in Political Science and Touro College Jacob D. Fuchsberg Law Center with a Juris Doctor. She currently resides in Long Beach.

 

“I am confident Ms. Maldonado will be a tremendous asset to our firm,” said James M. Murphy, Managing Partner, MHMS. “She has extensive experience as a trial attorney, as well as experience working in medical malpractice defense law.”

 

For more information, call (516) 747-4082.

Montfort, Healy Successfully Obtains Motion for Summary Judgment

Susan H. Dempsey, an associate with the firm, successfully obtained a motion for summary judgment in a personal injury matter.

 

The plaintiff in the case alleged that, following a February 2014 automobile accident, he suffered serious injuries as defined by Insurance Law § 5102(d). Specifically, the plaintiff alleged significant limitation of use of body functions or systems, which prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 of the first 180 days immediately following the accident.

 

Ms. Dempsey submitted a motion for summary judgment, arguing that the plaintiff did not suffer serious injuries as de ned by New York State Insurance Law. On April 10, 2017, the Honorable Paul A. Goetz of the New York County Supreme Court signed an order granting a motion for summary judgment in favor of the defendants. The decision was made pursuant to Insurance Law § 5102(d), which requires the plaintiff to claim serious injuries resulting from the defendant’s negligent ownership and/or operation of a motor vehicle.

 

The judge found that Ms. Dempsey sufficiently met her burden of proving that there was no material issue of fact in regards to the injuries sustained by the plaintiff. Relying on the reports of the defendant’s radiologist and orthopedic surgeon, the court determined that the injuries to the plaintiff’s lumbar and cervical spine were consistent with a degenerative disease and not acute trauma. The plaintiff failed to raise a triable issue of fact by providing any objective medical evidence showing otherwise. Because there was no objective proof of a causal correlation between the accident and the plaintiff’s injuries, the plaintiff’s 90/180 claim could not be successful. See 2017 NY Slip Op 30731(U).

Michael J. Boranian Successfully Defends Hospital and Plastic Surgeons against Medical Malpractice Action

Montfort, Healy Senior Partner Michael J. Boranian recently obtained a defendant’s verdict in a medical malpractice case that was tried in Nassau County Supreme Court on behalf of a local medical center and two individual plastic surgeons who were accused of alleged improper performance of surgical repair after a chain saw accident.

 

The plaintiff was brought to the hospital after injuring his left hand with a chain saw while on the job. The initial injury had nearly severed the plaintiff’s thumb and had severely injured the nerves and musculature to the fourth and fifth fingers as well. The essence of the plaintiff’s claim was that the surgical repair was inappropriate and, therefore, left the plaintiff with a greater residual limitation than he otherwise would have experienced.

 

Mr. Boranian successfully argued that the initial injury was severe, the surgical technique employed by the attending surgeon and the resident was absolutely appropriate, and that the defendant surgeons competently and skillfully restored function to the plaintiff’s hand, which would have otherwise been much more severely limited.

 

In addition to the testimony of the parties, the court and the jury heard testimony from the plaintiff’s surgical expert, a subsequent treating surgeon and the defendant surgical expert. Upon cross-examination, Mr. Boranian was able to obtain concessions from both the plaintiff’s expert (hand surgeon) and the subsequent treating hand surgeon regarding both the underlying injury and the surgical technique employed.

 

The jury verdict was 6-0 in favor of the defendants.

Super Lawyers Recognizes Three Attorneys from Montfort, Healy, McGuire & Salley LLP

Super Lawyers has recognized three attorneys from Montfort, Healy, McGuire & Salley LLP for 2017 honors. The three attorneys — amounting to approximately one-fourth of the firm’s partners and of counsel — were recognized in the practice areas of civil litigation defense, personal injury defense and medical malpractice defense.

Firm Partner Christopher T. Cafaro was recognized in the practice area of Civil Litigation: Defense. Frank J. Cafaro, of counsel with the firm, was recognized in two practice areas: Personal Injury — Medical Malpractice: Defense and Personal Injury — Defense. Philip J. Catapano, who is also of counsel with the firm, was recognized in the practice area of Personal Injury — Medical Malpractice: Defense.

“It is an honor to have these three attorneys named to such an exclusive list,” said James Michael Murphy, the firm’s managing partner. “This recognition reflects the hard work they perform in representing their clients.”

The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process.html.

No aspect of this release has been approved by the Courts of the State of New York.

Timothy A. Jenks and Nicholas Ferrara Join Montfort, Healy, McGuire & Salley LLP

Timothy A. Jenks and Nicholas Ferrara have recently joined Montfort, Healy, McGuire & Salley LLP. Mr. Jenks has been named as one of the firm’s associates and Mr. Ferrara will serve as one of MHMS’ law clerks.

Mr. Jenks concentrates his practice in negligence, premises and general liability, motor vehicle accidents, construction site accidents, municipal liability and medical malpractice. Prior to joining the firm, he worked as an associate for a very prestigious personal injury law firm in New York City.

He is a member of the Nassau County Bar Association, the New York City Bar Association, the American Bar Association, the New York Law School Alumni Association, the Chaminade Alumni Lawyers Association, and the Glen Head Republican Club. As a member of the New York City Bar Association, Mr. Jenks serves as a member of its New Lawyer Practice and Skills Committee.

Mr. Jenks earned his Bachelor of Arts from the University of Vermont and his Juris Doctor from New York Law School, where he was a member of the Moot Court Association.

Mr. Ferrara was a member of the St. Anthony’s High School varsity football team from 2007 to 2009. At the time, he was ranked the top high school kicker/punter in the country and garnered All-American, All-Tristate, All-State, All-Long Island, All-Metro New York and All-Catholic High School Football League honors.

He continued his football career at the University of Maryland — the alma mater of another Long Island high school football standout, Boomer Esiason, who went on to play for three NFL teams — where he started all four years as a kicker and punter. He was a first-team freshman All-America pick by the Football Writers Association of America and all-Athletic Coast Conference honors by Sporting News and Rivals.com. He finished at Maryland with 30 field goals made (ninth in school history) and 143 points (10th in points by a place-kicker and 17th in all-time scoring).

After graduation, he attempted to continue his football career by attending New York Jets training camp as a walk-on. However, his dreams of playing in the NFL ended when he injured his hip after making a tackle. He underwent two surgeries at the Hospital for Special Surgery for his hip. Doctors told him that, if he injured his hip again, he would never walk again. After examining his post-football career options, he decided to take the LSAT.

In 2014, he enrolled in Touro College Jacob D. Fuchsberg Law Center in Central Islip. While attending law school, he served as a legal intern at the Law Office of William A. Schafer in Mineola. He received his Juris Doctor in May 2017. In July 2017, he took the New York State Bar exam; he is currently waiting for the results. Once he passes the Bar, he will become an associate with the firm.

In addition to serving as a law clerk, Mr. Ferrara is a volunteer football coach at Saint Anthony’s High School in South Huntington and assistant director of Koeppelin Kicking in Commack.

Montfort, Healy successfully moves to stay SUM arbitration under the terms of a commercial auto policy

Montfort, Healy was successful in arguing to stay a supplementary underinsured motorist (SUM) coverage arbitration. The insured vehicle in this case was owned by a corporation. The president and sole shareholder of the corporation was injured in a two-car collision while a passenger in another vehicle owned and operated by a colleague. He claimed that, when the accident happened, he was being driven to a dinner meeting where he intended to discuss one of his corporation’s computer projects. After settling with the carrier for the adverse vehicle, he demanded SUM arbitration with the insurer of the vehicle owned by his corporation. Montfort, Healy, in representing the corporation’s insurance carrier, moved to stay arbitration on the ground that the president of the corporation did not qualify as an insured under the terms of its policy.

The issue in the case was whether the insurer of the corporation’s petition to stay the proceedings was timely. While the corporation’s carrier did not deny the petition to stay the proceeding was outside of the 20-day statutory period under CPLR § 7503(c), their counsel, Montfort Healy, instead argued that the statutory requirement does not apply if there is no agreement between the parties to arbitrate. The opposition argued that, since the policy had an arbitration provision and the injured party is the president and sole shareholder of the corporation, then they are bound by the arbitration agreement.

In relying on similar cases, the Court recognized that whether the corporation’s insurer is bound by the 20-day filing period relies on whether the president of the corporation is “insured” as per the policy.

The policy in question read as follows:

Any person while acting in the scope of that person’s duties for you, except with respect to the use and operation by such person of a motor vehicle not covered under this policy, where such person is: (a) your employee and you are a fire department; (b) your member and you are a fire company, as defined in General Municipal Law section 1000; (c) your employee and you are an ambulance service, as defined in Public Health Law section 3001; or (d) your member and you are a voluntary ambulance service, as defined in Public Health Law section 3001.

The question for the court then became the scope of the “exception” in the part of the clause beginning with the word “except.” The court had to decide whether the scope of the exception was the entire remaining portion of the clause, or if the “exception” is limited to the phrase separated by the commas, namely “except with respect to the use and operation by such person of a motor vehicle not covered under this policy.”

In interpreting the clause, the court determined that the presence of the commas before “except” and after “policy” were simply grammatical borders to the clause. Therefore, the president must also show that he is one of the people as described in (a) through (d) in order to be “insured” under the policy. Because he failed to make a showing, the Court found he is not an insured as defined by the policy and thus, there is no agreement to arbitrate between the parties. Therefore, the application was granted, and the Court permanently stayed the arbitration.

To read a full copy of the decision click here.

Montfort, Healy Successful in Arguing Motor Vehicle Accident

Montfort, Healy was successful in arguing that a jury’s verdict rendered in a motor vehicle accident case should stand. The plaintiff alleged that she sustained serious injuries as a result of a motor vehicle accident. The jury returned a unanimous verdict finding that the motor vehicle accident was not a substantial factor in causing her alleged injuries.

The plaintiff moved pursuant to CPLR § 4404(a) to set aside the verdict and for a judgment as a matter of law. After the initial request was denied, the plaintiff moved for leave to reargue. Upon reargument, the Suffolk County trial court granted her motion. The defendants appealed.

On appeal, the Second Department recognized that a motion pursuant to CPLR § 4404(a) may only be granted “where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to conclusions reached by the jury on the basis of the evidence presented at trial.” The Court cited Cohen v Hallmark Cards, 45 NY2d 493, 499; Vittiglio v Gaurino, 100 AD3d 987, 987-988. Vittiglio v Gaurino, decided by the Second Department in 2012, was also argued by Montfort, Healy.

Montfort, Healy contended that the expert testimony of the physicians who examined the plaintiff on behalf of the defendants could lead the jury to believe the claimed injuries were solely the result of degenerative processes, and therefore were not the result of trauma. Upon review, the Second Department agreed with Montfort, Healy and held that the Supreme Court’s grant of plaintiff’s motion under CPLR § 4404(a) was improper. Accordingly, the Second Department reversed the trial court order and reinstated the jury’s verdict.

To read the full text of the decision click here.

Montfort, Healy Successfully Argues that a Bar is Not Entitled to Summary Judgment under the Dram Shop Act

Montfort, Healy was successful in arguing that a bar was not entitled to summary judgment under General Obligations Law § 11-101, commonly known as the Dram Shop Act. The firm represented the driver of a vehicle that overturned and seriously injured the plaintiff. After the accident, the driver was found to have a blood alcohol content of .18%.

In moving for summary judgment dismissing the Dram Shop Act, the bar submitted unsigned transcripts of two witnesses who spent several hours with the driver at the bar before the accident. While the transcripts contained testimony that the driver was not visibly intoxicated when he left the bar, they were unsigned, and the Supreme Court denied the motion. The bar moved for leave to renew, and submitted signed copies of the transcripts. Finding that the missing signatures resulted from law office failure, the trial court granted leave to renew the motion for summary judgment and, upon renewal, dismissed the Dram Shop Act cause of action.

On appeal, the Second Department agreed that the failure to provide signed copies of the transcripts constituted “law office failure” and held that the Supreme Court properly granted renewal. However, the Second Department modified the order of the trial court by denying summary judgment.

The court stated that “to establish a cause of action under the Dram Shop Act, a plaintiff is required to prove that the defendant sold alcohol to a person who was visibly intoxicated at the time of the sale, and that the sale of that alcohol bore some reasonable or practical connection to the resulting damages.” (Pinilla v City of New York, 136 AD3d 774, 776-777; see General Obligations Law § 11-101[1]). While the annexed deposition transcripts, along with other testimony, met the bar’s prima facie burden to establish the driver was not visibly intoxicated while a patron at the bar, the opposition provided by the plaintiff raised a triable issue of fact sufficient to defeat summary judgment.

The plaintiff provided a transcript of the driver’s plea of guilty to aggravated driving while intoxicated, along with other related crimes. At his plea, the driver admitted he remembered drinking “a few mixed drinks” before the accident, and further admitted that his blood alcohol content after the accident was .18%. In addition, the police report revealed that, at the time of arrest, the driver appeared to be intoxicated. While the bar argued that the police report should not be admissible, the bar had submitted the report with its reply papers on the original motion. Therefore, it waived any objection to its admissibility.

While viewing the facts in the light most favorable to the plaintiff, the Court found that the plaintiff raised a triable issue of fact as to whether the defendant was visibly intoxicated while he was a patron at the bar. The Second Department concluded by stating the trial court properly granted renewal, but upon renewal, the defendant bar’s motion for summary judgment should have been denied.

To read the full decision, click here.