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Read about the latest at Chesney, Nicholas & Brower, LLP

Defense Verdict Received in a Medical Malpractice Case Against a Pulmonologist

Henry D. Nelkin

A defense verdict was returned by a Nassau County jury in November 2024 in an action brought against a pulmonologist and an internist in a case alleging the failure to diagnose endocarditis, a rare infectious disease that causes inflammation of the inner lining of the heart and/or heart valves. The plaintiff (who died from unrelated causes prior to the trial) suffered a stroke from an aneurysm apparently caused by the endocarditis. The plaintiff alleged that the pulmonologist, who had treated the plaintiff/decedent for many years for lung issues, departed from the standard of medical care in failing to perform a complete workup, including obtaining a blood culture, when the pulmonologist prescribed an antibiotic for the plaintiff/decedent over the telephone, months before the endocarditis was diagnosed. The internist was also criticized for failing to obtain blood cultures of the plaintiff/decedent months before the endocarditis was diagnosed. The jury returned a unanimous verdict in its finding that neither the Chesney, Nicholas & Brower client nor the co-defendant physician, departed from the standards of medical care.

Scott Koltun Quoted in New York Post Article

Scott Koltun

A mother from the Upper West Side, who has a severe sesame allergy, went into anaphylactic shock after consuming a chocolate-chip cookie made with tahini at a local coffee shop. Her lawyer, Scott Koltun was quoted in an article in the New York Post focusing on the importance of educating employees about the ingredients in their products and clear food allergy labeling.

 

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Plaintiff's Motion to Amend Complaint Denied

Michael Jenks

Mike Jenks, a partner in our firm, successfully opposed a plaintiff’s attorney’s attempt to bring our client into an ongoing lawsuit, as a defendant to a personal injury case despite the expiration of the statute of limitations. Mike argued that the plaintiff did not meet the burden of proving elements of a relation back doctrine which acts as an exception to an expired time to sue a defendant. The Judge in Suffolk County Supreme Court adopted and agreed with our argument that our client, a nationwide landscaping company, was not united in interest with any of the other defendants in that action, and as such the relation back doctrine exceptions should not apply. The only thing better than winning a case on behalf of a client/ defendant in litigation is keeping the client out of the case at its inception.

Successful Defense Verdict

Destiny S. Holliday

 A trial verdict was returned by a Kingston City Court judge on May 10, 2024 in an action for veterinarian malpractice. Destiny S. Holliday successfully argued that the plaintiff failed to meet her burden in establishing that the defense departed from good and accepted veterinarian medical practice.

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.

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 on a Medical Malpractice Case

Henry D. Nelkin

Henry D. Nelkin secured summary judgment for a client in a Supreme Court, Queens County action. The client was a provider of anesthesia services to a hospital in Queens. The surgeon, the hospital, and the Chesney, Nicholas & Brower client were defendants in the case. Notably, the anesthesiologist, who was an independent contractor for our client, was not named as a defendant. The basis for the motion was that the anesthesiologist was, in fact, an independent
contractor, and, was not an employee, and as a result, our client could not be potentially liable for the alleged malpractice of the anesthesiologist. The proof submitted with the motion to prove this was the contract between our client and the anesthesiologist which clearly stated he was an independent contractor, together with the IRS 1099 form showing that no employer-employee relationship existed. Both the hospital and the plaintiff opposed the summary judgment motion, but the court made clear that there were no triable issues of material fact raised by the opponents of the motion, to warrant denial of summary judgment.

Summary Judgment Affirmed On Appeal

Gregory E. Brower

In Wahid v. HMC Times Square Hotel, the Second Department affirmed summary judgment in favor our clients, holding that HMC Times Square Hotel surrendered control over the property pursuant to a management agreement and thus owed no duty of care to the plaintiff, who was allegedly injured on an interior staircase. The “out of possession” landowner defense is one that Chesney, Nicholas & Brower, LLP has used very successfully over the years in defense of their client’s interests.

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.

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.

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.

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.

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.

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