Archives: News

Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley LLP was successful in representing a housing development corporation in a trip and fall case in New York’s Appellate Division, First Department.

The action arose out of a trip and fall accident in 2012, when an imperfection in the sidewalk allegedly caused the plaintiff to trip and sustain injuries. Montfort, Healy, McGuire & Salley LLP appeared in the action representing a housing development corporation that owned property in the neighborhood where the plaintiff tripped. Within four months after appearing in the action, the firm filed a motion for summary judgment, arguing that the housing development had no relationship to the sidewalk at issue, and furthermore, it did not engage in any act that might have caused the alleged imperfection.

The trial court denied the firm’s motion as untimely, even though the housing development was not impleaded into the action until four months after the note of issue was filed. A motion filed by a co-defendant to strike the note of issue and allow additional discovery was also denied.

The First Department held that the trial court should have considered the motion for summary judgment on the merits. The motion court erred when it failed to extend the time within which to file the motion because “good cause” existed to excuse any delay in filing the motion. The First Department concluded by issuing an order that granted the motion and dismissed the action as against the housing development corporation.

The text of the decision can be read here.

Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley LLP successfully defended a New York automobile accident claim in New York Supreme Court’s Appellate Division, Second Department.

After suffering injuries in an automobile accident in Queens, New York, the plaintiff, was authorized by his insurance company to settle his claim against the tortfeasor. After settling his claim, the plaintiff commenced an action against the insurance company to recover damages for personal injury pursuant to the under-insured endorsement of his policy with the company. The action led to a jury trial at which the insurance company conceded liability. Therefore, the jury was asked to determine only whether the plaintiff met the serious injury threshold as defined by insurance law to obtain damages. The jury found that the plaintiff did not sustain an injury under the statutory threshold required for damages. After the decision, the plaintiff moved to set aside the verdict as contrary to the weight of the evidence and for a new trial. The motion was denied, and a judgment was entered in favor of the insurance company.

The Plaintiff appealed the decision stating that the Supreme Court incorrectly denied the motion to set the verdict aside. In representing the insurance company Mr. Neumann argued that the Supreme Court correctly denied the plaintiff’s motion, and this was evidenced by the fact the plaintiff did not object to the charge as given, or to the verdict sheet. In addition, the Plaintiff did not move for a directed verdict, and therefore they conceded the fact that the question of fact should have been left to the jury. Mr. Neumann further argued that the jury’s verdict was not against the weight of the evidence.

The appellate court agreed with Mr. Neumann in holding: “A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence” see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746. The court found that the jury’s finding was based on a fair interpretation of the evidence submitted at trial, and therefore affirmed the trial court’s decision.

The decision from the Second Department Appellate Division can be found here.

Claim Determined to be Medical Malpractice not Negligence and thus time barred.

Associate attorney Michael K. Chin of Montfort, Healy, McGuire & Salley was successful in the dismissal of a medical malpractice claim in Nassau County Supreme Court. Representing a major hospital and rehabilitation Center, Mr. Chin argued that the claim against the facility was a medical malpractice claim rather than a negligence claim and thus barred by the two and one half year statute of limitations.

The Plaintiff’s action against the rehabilitation facility arose from personal injuries sustained in July 2011 when the Plaintiff fell during a physical therapy session. The Plaintiff asserted a single cause of action for negligence after he claimed that the defendant “failed and omitted to properly supervise the plaintiff to prevent falls…failed and omitted to properly diagnose plaintiff’s injuries in a timely manner…and failed and omitted to properly treat plaintiff’s injuries in a timely manner.” In addition, the plaintiff claimed that the defendant used a lack of care when placing him in a strenuous position likely to cause the injury. Furthermore, the claim stated that the defendant violated New York State Office of Professional Practice Guidelines by allowing an unlicensed aid to provide direct contact with the plaintiff. The claim of negligence carries with it a three-year statute of limitations.

In review of the claims, Montfort, Healy, McGuire & Salley moved to dismiss the action because the cause of action was medical practice and not negligence, and therefore barred by the statute of limitations. In relying on case law, the court had to determine whether the case is medical malpractice or negligence by looking at where the duty of the professional arose from. If the duty of the defendant arose from the physician-patient relationship or is substantially related to medical treatment, then any breach of that duty would give rise to an action of medical malpractice rather than negligence.

The court found that the plaintiff’s injury came after he was presented to the rehabilitation facility for services following a knee replacement. The plaintiff alleged that the licensed physical therapist was not in the room, and instead was just her aide. While the defendant disputed this claim, the court found that regardless the question was not a sufficient question of fact to survive the motion to dismiss. The court determined that if the physical therapist left the patient alone in the room with the aide then that would go to the adequacy and supervision of the training of the aide and be related to the medical services.

The court noted that “allegations of inadequacy do not remove or change their roles from that of medical malpractice to simple negligence.” (Perkins v. Kearney, 155 AD2d 191). The court concluded that the negligent conduct at bar constituted an integral part of the process of rendering medical treatment to the plaintiff, and thus would constitute a claim for medical malpractice. Therefore, the court dismissed the claim as being time barred by the statute of limitations.

To read the full decision, click here.

Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley LLP successfully vacated a $600,000 default judgment on behalf of a Virginia resident in a personal injury matter.

On November 14, 2013, the defendant, a resident of Virginia, was involved in a motor vehicle accident with another car that was occupied by its driver and one passenger. The driver resided in Georgia, and his passenger resided in Maryland. The complaint did not set forth the state where the accident happened, and no connection to New York was pleaded or established.

The accident happened in Maryland. Nevertheless, the plaintiffs filed their action in the United States District Court, Southern District of New York, where they obtained a default judgment against the defendant and were awarded a judgment in the total amount of $600,000 ($300,000 for each plaintiff as demanded in the complaint).

After it was retained by the Defendant’s insurance company, Montfort, Healy filed a motion to vacate the default judgment and dismiss the complaint on the ground that the Court did not have jurisdiction to hear the matter. The Court (Robert W. Sweet, J.) agreed, holding that: “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties or relations.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S. Ct. 2174, 2181, 85 L. Ed. 2d 528 (1985) (quoting Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 319, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945). Judge Sweet vacated the default judgment and dismissed the complaint for want of personal jurisdiction.

The decision of Judge Sweet was selected for publication by Leagle.com and can be read by clicking here.

Donald S. Neumann, Michael A. Baranowicz and Christopher T. Cafaro of Montfort, Healy, McGuire & Salley LLP successfully represented a defendant third-party plaintiff-appellant telecommunications company before the New York State Supreme Court, Appellate Division, Second Department. The client sought action against a subcontractor for indemnification for attorneys’ fees in conjunction with the successful dismissal of a personal injury action against the telecom company and its subcontractor.

In the underlying case, the plaintiff-respondent claimed she was injured when her bicycle hit a pothole at an intersection in Queens. She commenced an action to recover damages for personal injuries against the telecom company, among others. Before the accident happened, the company received a street opening permit from the City of New York to do work on the intersection and hired a subcontractor to perform the work. However, no work was actually done at the intersection at issue. The trial court dismissed the action against the telecom company and the subcontractor. However, the subcontractor failed to indemnify the telecom company for its attorneys’ fees, as agreed to in their agreement. The Firm commenced a third-party action on behalf of the telecom company against the subcontractor based on the claims of breach of contract and contractual indemnification.

The contract between the two parties stated that the subcontractor agreed to defend and indemnify the telecom company against “claims” resulting from the subcontractor’s “acts or omissions,” whether such claims “arise[ ] or [are] alleged to arise out of the sole acts or omissions of the [subcontractor] or the concurrent acts or omissions of the [subcontractor] or any indemnified parties.” (see Diudone v. City of New York, 87 AD3d 608; Sand v. City of New York, 83 AD3d 923; Barnes v. New York City Hous. Auth., 43 AD3d 842). The subcontractor argued that, since the work was never performed, it should not be responsible for indemnifying the telecom company for attorneys’ fees. The lower court agreed.

In reversing the lower court, the appellate court found that the “plain and unambiguous terms of the contract did not condition [the subcontractor’s] obligation to indemnify [the telecom company] for attorneys’ fees and costs on a finding of fault.” Thus, the telecom company was entitled to indemnification in defense of the main action, despite the fact that the subcontractor never worked in the area and was not at fault for the accident.

To read the full decision, click here.

Baker v. Verizon

Susan H. Dempsey of Montfort, Healy, McGuire & Salley LLP recently secured summary judgment in favor of a defendant client in a case pending in the New York State Supreme Court in Queens County. The court granted the order on the ground that the plaintiff did not sustain injuries that met the “serious injury threshold requirement” pursuant to Insurance Law §5102(d).

The dispute arose from a motor vehicle accident that occurred in 2013. The plaintiff alleged he sustained injuries including: some requiring surgery; some that decreased his motions; and others that caused strains, sprains, headaches and pain syndrome. Evidence of the plaintiff’s prior medical history, however, led to the dismissal of the complaint.

The plaintiff’s testimony at his deposition revealed that, at the scene of the accident, an ambulance arrived and he was examined. However, instead of requesting that he be transported to a hospital, the plaintiff drove himself to a pain management facility where he had been receiving treatment for other injuries sustained as a result of prior incidents.

The Court took note of a deposition from 2012, in which the plaintiff testified to several injuries related to an assault. Many of the injuries about which he complained after the vehicle accident were similar to those he sustained in the assault. In addition, he continued to take pain medication for injuries related to the assault, attended monthly pain management treatments, and had not returned to work since the incident. The court also looked at injuries that the plaintiff sustained as a result of an automobile accident that happened more than ten years ago and found that some of his current complaints were related to that earlier accident.

Relying on case law precedent and applying Insurance Law §5102(d), which requires that injuries must be causally connected to the accident, the Court found that the evidence of causation was speculative “at best.” See Vidor v. Davila, 37 AD3d 826, 826-27 [2nd Dept. 2007]. Because the plaintiff did not demonstrate, in opposition to the defendant’s prima facie showing of entitlement to summary judgment, that his injuries were related to the 2013 vehicle accident, the Court dismissed the complaint.

To read the full decision, click here.

Albanez v. Charles (2015 NY Slip Op 08795)

In a recent case, Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley successfully represented a client at the Appellate Division, Second Department. The appeal concerned recovery of damages in a personal injury action, as ordered by the Supreme Court. Mr. Neumann represented the defendant/respondent for whom he secured judgment on the ground of res judicata.

Res judicata is a legal doctrine that bars a claim in a subsequent litigation action if it was already raised or could have been raised previously. To prevail in precluding a claim based on this doctrine, a party must prove that the “successive litigation [is] based on the same transaction or series of transactions [in that] (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was.” See Matter of People v. Applied Card Sys., Inc., 11 NY3d 105, 122.

In a separate declaratory judgment action, a default judgment had been rendered declaring that the alleged “accident” in question was a collision that was intentionally, rather than negligently, caused.

In this case, the plaintiffs sought recovery for personal injuries allegedly sustained as a result of the collision.

Although the Supreme Court held that the action brought by the plaintiff was barred based on collateral estoppel (issue preclusion), the Appellate Division affirmed the order on the alternate theory of res judicata. The Second Department held that both elements for res judicata were satisfied in that the Supreme Court had already determined the claim was barred and both parties had been named as defendants in the declaratory judgment action.

To read the full case, click here.

American Sec. Ins. Co. v. Church of God of St. Albans (2015 NY Slip Op 06699)

Partners Donald S. Neumann, Jr. and Michael A. Baranowicz of Montfort, Healy, McGuire & Salley recently secured a victory in the Appellate Division, Second Judicial Department for a design architect who was hired for a church building project in Queens. The project entailed demolishing a pre-existing building and constructing a new two story building on the site. Part of the construction plans also included an excavation that extended to the adjacent property.

The excavation caused the adjoining building to become unstable and at risk of collapse, which led the New York City Department of Buildings to issue a Full Vacate Order. The owners of the adjacent property brought suit against both the design architect and the construction company that performed the work to recover for the damage to their property. The suit alleged common law negligence, breach of contract, and violations of several recently amended sections of the Administrative Code of the City of New York.

The court found that the language of Administrative Code §28-3309.4 imposes “absolute liability upon the ‘person who causes’ an excavation to be made.” However, the court also found that the design architect was not the individual who actually caused the excavation because he neither made the decision to do so, nor did he carry out the physical work. Therefore, he was able to make a prima facie showing that he was free from liability.

The court reasoned that, although the design architect was involved in the discussions regarding the “means and methods to be employed in the excavation,” his contractual obligations relieved him from responsibility for the way in which the excavation was carried out. Additionally, his contractual obligations stated he was “not responsible for… safety precautions taken in connection with the work.”

Accordingly, the Appellate Division reversed the motion court’s order, and held that the motion court erred when it refused to grant summary judgment in favor of the design architect and dismiss the complaint against him.

To read the full case, click here.

Fiore v. Rivera 2015 WL 5007938

Recently, James M. Murphy of Montfort, Healy, McGuire & Salley LLP successfully represented an insurance adjuster in a case that was commenced in the United States District Court for the Eastern District. The client was a defendant in a claim that arose as a result of alleged false arrest and malicious prosecution.

The suit concerned the plaintiff’s arrest on a charge of grand larceny that resulted from a dispute concerning the costs of car repair services, which the plaintiff performed. After the individual who owned the car asserted that no service work had been performed on the vehicle, the owner claimed that he attempted to retrieve the money he had spent on the repairs from the plaintiff. When the alleged attempt failed, the owner of the car filed a criminal complaint with the police. The plaintiff was ultimately arrested on charges of grand larceny and falsifying business records.

After the plaintiff’s acquittal, the car owner filed a complaint with the New York State Department of Motor Vehicles. At the hearing, the administrative law judge imposed civil monetary penalties and revoked the plaintiff’s repair shop license.

The plaintiff then filed an action against the Suffolk County Police Department under 42 U.S.C. § 1983 on the grounds of false arrest and malicious prosecution in violation of the Fourth amendment. Additionally, he commenced an action against the car owners and the insurance adjuster, asserting malicious prosecution.

The insurance adjuster filed a motion to dismiss for failure to state a claim. The Court agreed with the defendants and dismissed the plaintiff’s motion because, in order to state a § 1983 action, the entity accused must have acted under the color of law, which is not generally an applicable assertion against a private citizen, unless that citizen acted in concert with the government to deprive the plaintiff of constitutional rights. The court found that even if the two non-county defendants did make false comments or statements concerning the plaintiff’s repair business, it did not rise to the level necessary to constitute state action.

Additionally, the court found that the plaintiff was not collaterally estopped from asserting a lack of probable cause. However, it also found that the complaint did not sufficiently allege probable cause under the plausibility standard.

Claims against all defendants in the case were dismissed without prejudice.

To read the full case, click here.

Gavrilova v. Stark (2015 NY Slip Op 05153)

Montfort, Healy, McGuire & Salley LLP was recently successful in securing a victory at the Appellate Division, Second Department on behalf of a third-party defendant in a three-car accident. Partner Donald S. Neumann, Jr. and Senior Associate Robert J. Pape, Jr. represented the third-party defendant, who had been impleaded by the driver of the third vehicle.

The appeal was from an order of the Kings County Supreme Court that granted the third-party defendant’s motion for summary judgment to dismiss the complaint. The appellate court upheld the decision of the trial court, ruling that the third-party defendant’s motion for summary judgment dismissing the complaint on the issue of liability was properly granted.

The case concerned a three-car accident that happened after the third-party defendant — the first car in line — had stopped due to an emergency vehicle on a cross street that passed by with its lights and siren in operation. Subsequently, the two following cars each collided into the car in front of them. The plaintiff in the case was a passenger in the second vehicle.

The Kings County Supreme Court granted summary judgment to both the operator of the first car in line – the third-party defendant – and to the operator of the second car in line. The operator of the last car in line claimed that the accident was caused when the third-party defendant of the first car- stopped short. The Appellate Division, Second Department reversed the grant of summary judgment to the second car in line, but held that the third-party defendant, represented by the firm, was not at fault for the collision because she obeyed the New York Vehicle and Traffic Law provision that requires drivers to yield the right of way to emergency vehicles.

More commonly known as the “Move Over Law,” NY VTL 1144-a makes it a serious traffic infraction to fail to exercise due care to avoid collision with emergency vehicles driving with their lights and sirens on.

Click here to read the court’s full decision.