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Summary Judgment Affirmed by the First Department- Trivial Defect
Gregory E. Brower
In the case of Florsheim v. Marriott, Gregory Brower filed a motion for summary judgment in the Supreme Court, New York County, arguing that plaintiff’s trip and fall over an expansion joint of the defendant’s hotel was trivial as a matter of law. Using photographic evidence and undermining the findings of plaintiff’s expert, the lower court agreed and dismissed the case. The First Department affirmed and the Court of Appeals declined taking the case.
Henry Nelkin Receives Defense Verdict in a Medical Malpractice Case Against a Neurologist
Henry D. Nelkin
A defense verdict was returned by a Queens County Jury in February 2024 in an action brought against a neurological consultant and attending cardiologist in a case involving the death of an 89-year-old woman. In a three-week trial, the jury heard evidence from the plaintiff to the effect that both the cardiologist and the neurological consultant departed from the standards of medical care by allowing the patient to become dehydrated, resulting in mental confusion, which caused her to fall when getting out of her bed. The case initially was brought against the hospital and residents and nurses in the hospital and the physicians, but the plaintiff settled out with those parties. The plaintiff chose to continue the case against the physicians, even though there was ample evidence to the effect that the nurses failed to follow hospital procedure and orders regarding a patient’s safety. The jury was unanimous in its finding that neither the Chesney, Nicholas & Brower client, nor co-defendant physician departed from the standards of medical care for a neurologist and cardiologist respectively.
Summary Judgment Granted
Jeffrey Burkhoff
In an action arising from alleged wrongful and unauthorized detention of a vehicle, we moved to dismiss on the grounds that the named defendant did not operate the garage. Plaintiff moved to amend the complaint to add a number of other entities. We opposed the motion and argued that the proposed new defendants were not affiliated with the original defendant. We also moved to dismiss the complaint, on the grounds that the named defendant did not operate the garage. The court converted the motion to dismiss to one for summary judgment and granted our application, dismissing the complaint. The case presented some interesting issues on the evidence that can be used on motions to dismiss, converting a motion to dismiss to one for summary judgment, amending pleadings, and the “relation back” doctrine.
Rudolph P. Petruzzi Appears at Hearing on Behalf of Teacher in Licensing Action by the State of New York
Rudolph P. Petruzzi
Rudolph P. Petruzzi appears at Hearing on behalf of teacher in licensing action by the State of New York, attempting to revoke license of a Teacher based upon claims of improper activity during ABA therapy for a non verbal Autistic child. After testimony from the State of New York, our client and expert witness all claims against the Teacher were dismissed.
Two Summary Judgments Granted
Scott Koltun
In one Richmond County premises liability action Scott successfully argued that the landscaping/snow removal contractor we represented could not have been responsible for a purported defect that led to plaintiff’s accident.
In a second dental malpractice action venued in the Bronx Scott was able to establish that the LLC which operated a dental facility did not commit any acts of negligence or malpractice as had been alleged by plaintiff.
Summary Judgment Granted in Slip and Fall Incident Involving Trimalleolor Fracture
Plaintiff’s Cross-Motion for Spoliation Denied
Stephen Morello
In Rhoden v. The Refuge the plaintiff alleged that on November 19, 2021 she visited our client’s restaurant with her sister and a real estate broker friend to celebrate her sister’s purchasing a new home. The three sat at the bar and ordered appetizers, one of which was mussels in white wine sauce and each claims to have consumed one alcoholic beverage. The food was brought by a waiter who placed a platter on a tray and then the food was placed on the bar in front of the plaintiff and others. Approximately one hour later, the plaintiff got up from her bar stool and slipped and fell sustaining a trimalleolar fracture which required an open reduction and internal fixation. She later determined that the substance which caused her to fall was the sauce from the mussel dish. The plaintiff argued that the spill was caused by the waiter when he brought the
food, however, none of the witnesses deposed observed the waiter cause the spill. The area where the incident occurred was covered by a surveillance camera, however, the film was recycled and lost by our client. Our firm moved for summary judgment alleging that this was a “cause and create incident” and that all of the evidence pointed to the fact that the plaintiff solely caused the spill. The plaintiff cross moved for spoliation. The Supreme Court, Queens County granted our firm’s motion for summary judgment and dismissed the complaint the cross-motion for spoliation was denied.
Summary Judgment Granted – No Defect
Gregory E. Brower
In the matter of Swallows v. W. New York, plaintiff alleged that the hotel was negligent in improperly securing a 60-pound metal safe which purportedly fell from a shelf onto plaintiff’s head, causing various injuries, including a traumatic brain injury. Gregory Brower argued to the Supreme Court, New York County that plaintiff failed to present evidence that the safe was improperly secured or that the defendant created the purported dangerous condition or had notice thereof. The lower court agreed and plaintiff’s case was dismissed.
Defense Verdict Received in a Medical Malpractice Case Brought Against an Orthopedic Surgeon
Henry D. Nelkin
In a trial of a case brought in Supreme Court, Suffolk County, the plaintiff claimed that the client, an Orthopedic Surgeon, who had surgically repaired plaintiff’s ruptured Achilles tendon, caused plaintiff to sustain a deep vein thrombosis (DVT) of the operative leg. The DVT was not discovered until three years after the surgery was performed. It was claimed that the DVT caused plaintiff to develop Complex Regional Pain Syndrome (CRPS), which has caused the plaintiff severe pain, resulting in numerous surgical interventions to attempt to ameliorate the pain. There were seven departures alleged by plaintiff on the verdict sheet. After a three-week trial, in October 2023, the jury found that the client had departed in only one respect but did not find that the departure caused any injury to the plaintiff. As to the other six departures, the jury found that the client did not depart from the standards of medical care for an orthopedic surgeon.
Summary Judgment Granted- Snow and Ice – Ongoing Storm
Gregory E. Brower
In the matter of Albino v. Brightview Enterprise Solutions, et al., plaintiff alleged to have slipped and fallen on snow and/or ice which was improperly remediated. Gregory Brower filed a motion for summary judgment arguing that the snow event had ended less than two hours prior to the plaintiff’s fall and as such, a reasonable time had not elapsed from the cessation of storm and that defendants should receive the benefit of the Storm in Progress rule. The Supreme Court, Nassau County agreed and summary judgment was granted dismissing plaintiff’s case.
Hearing with New York State Justice Center Regarding Claims Against a Nurse at a Residential Facility
Rudolph P. Petruzzi
Chesney, Nicholas & Brower, LLP Partner, Rudolph P. Petruzzi successfully defended case brought by NYS Justice Center against an RN at a a facility for treatment of individuals with developmental disabilities. Allegations pertained to failure to provide timely medical service. All claims were unsubstantiated and the report was sealed after the hearing which included testimony from multiple witnesses.
Appearance at Trial in Supreme Court, Suffolk County in Dental Malpractice Case
Rudolph P. Petruzzi
Rudolph P. Petruzzi appears at trial in Supreme Court, Suffolk County in Dental Malpractice case involving claims regarding the inferior alveolar nerve and lingual nerve injury resulting from extraction of tooth number 32. Plaintiff discontinue claims against client at conclusion of two week trial.
Defense Verdict Received in a Medical Malpractice Case
Henry D. Nelkin
A Kings County jury reached a defense verdict in a medical malpractice case defended by Henry D. Nelkin, Esq., in May 2023. The client was a gastroenterologist who performed four colonoscopies on a patient. The last colonoscopy performed was based upon a recommendation from a colorectal surgeon who had performed a partial colon resection on the patient. The patient had no complaints after that colonoscopy. Approximately one month later, the patient was rushed to the hospital with cardiac symptoms and passed away approximately 24 hours later. There were no surgical interventions, nor were there any radiological studies to show that there was a perforation in the colon caused by the last colonoscopy performed by the client. The jury found that the client did not cause or contribute to the demise of the patient in this wrongful death lawsuit.
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