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New York Vol. XXXV Issue 28 • January 1, 2018

worker/workplace Negligence

Worker plummeted two stories in collapse at demolition site

Verdict $6,500,000

Zhicay v. 236 Buffalo Realty LLC

Kings County Supreme Court

Plaintiff’s Attorney Chris Vargas; Gorayeb & Associates, P.C.; New York

Defense Attorney Michael J. Mahon; Law Offices of Michael J. Mahon; Nanuet, N.Y.

Full report on page 9

worker/workplace Negligence — Labor Law Bronx CountyWorker struck by collapsing roof, claimed disabling injuries . . . . . . . . . 5

railroad — Subway Accident Bronx CountyPlaintiff claimed train’s sudden start caused fall, hip fracture . . . . . . . . 6

Construction — Labor Law Bronx CountyLaborer burned in accident while tarring roof . . . . . . . . . . . . . . . . . . . . 8

Motor Vehicle — Stop Sign Kings CountyPlaintiff alleged motorist ignored stop sign, caused crash . . . . . . . . . . 11

Premises Liability — Negligent repair and/or Maintenance Kings CountyDefense: Storm, not sprinkler system, flooded plaintiff’s premises . . . . 14

Motor Vehicle — Question of Lights Queens CountyAuto accident led to spinal fusion, plaintiff claimed . . . . . . . . . . . . . . . 15

Medical Malpractice — Surgical error Suffolk CountyDefense: Doctors couldn’t have prevented postpartum hemorrhage . . . 17

Motor Vehicle — No-Fault Case Dutchess CountyCouple not hurt in motor-vehicle accident, defense contended . . . . . . . 18

Motor Vehicle — Left Turn Erie CountyMotorcyclist tore and dislocated shoulder in accident . . . . . . . . . . . . . 19

Cases of Note

Formerly NEW YORK JURY VERDICT REPORTER

table of contents

new york city

Bronx county

worker/workPLAce neGLiGence

Labor Law

Mediated Settlement $3,000,000 .................................5

rAiLroAD

Subway Accident

Verdict Liability only .....................................................6

conStruction

Labor Law

Mediated Settlement $4,750,000 .................................8

kinGS county

worker/workPLAce neGLiGence

Labor Law

Verdict $6,500,000 ........................................................9

Motor VeHicLe

Stop Sign

Verdict $100,000 ......................................................... 10

Motor VeHicLe

Multiple Vehicle

Verdict $82,500 ........................................................... 11

Motor VeHicLe

No-Fault Case

Verdict Defense ........................................................... 12

PreMiSeS LiABiLity

Negligent Repair and/or Maintenance

Verdict Defense ........................................................... 14

new york county

GoVernMent

Excessive Force

Verdict Defense ........................................................... 15

QueenS county

Motor VeHicLe

Question of Lights

Verdict $1,110,000 ....................................................... 15

GreAter Metro AreA

nASSAu county

intentionAL tortS

Assault and Battery

Decision $111,207 ........................................................ 17

SuffoLk county

MeDicAL MALPrActice

Surgical Error

Verdict Defense ........................................................... 17

uPStAte

DutcHeSS county

Motor VeHicLe

No-Fault Case

Verdict Defense ........................................................... 18

erie county

Motor VeHicLe

Left Turn

Verdict $618,923 .......................................................... 19

Monroe county

Motor VeHicLe

Left Turn

Verdict $45,000 ........................................................... 21

et AL...

Attorney Services Directory .........................................22

Index ............................................................................ 24

correction policy: We urge readers to report any factual errors. A correction will be prominently placed in an upcoming issue. Please telephone Glenn Koch, editor in chief, at 212-457-9560, or send an e-mail to [email protected].

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new york city

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worker/workPLAce neGLiGenceLabor Law — Workplace — Workplace Safety

Worker struck by collapsing roof, claimed disabling injuriesMediAtedSettLeMent $3,000,000

cASe Rohan Ragubir v. Gibraltar Management Co., Inc and RA Lynch Excavating, No. 21298/13

court Bronx SupremeneutrAL(S) Robert AdamsdAte 11/28/2017

PLAintiffAttorney(S) Nick Gjelaj, Mullaney & Gjelaj, PLLC,

Forest Hills, NY Kevin G. Lillis, Mullaney & Gjelaj, PLLC,

Forest Hills, NY

defenSeAttorney(S) Alan Kaminsky, Lewis Brisbois Bisgaard &

Smith LLP, New York, NY

fActS & ALLeGAtionS On Aug. 25, 2011, plaintiff Rohan Ragubir, 24, an asbestos-abatement specialist, worked at a job site that was located at 8 Ames PC Plaza, in Plattsburgh. Workers were demolishing a structure that comprised a row of bays, each measuring 20 feet by 40 feet. The demolition was being performed via use of an excavator. Ragubir was working in tandem with the excavator’s operator, watering the area. While the excavator was removing a beam that supported one bay’s roof, the adjoining bay’s roof collapsed onto Ragubir. Ragubir became trapped beneath debris. He claimed that he suffered injuries of his back, a hip and his pelvis.

Ragubir sued the premises’ owner, Gibraltar Management Co. Inc., and the excavator operator’s employer, RA Lynch Excavating. Ragubir alleged that the defendants negligently failed to provide a safe workplace. He further alleged that the defendants’ failure constituted a violation of the New York State Labor Law.

Ragubir claimed that the demolition was to be conducted one bay at a time, but that the excavator operator’s act caused the collapse of an adjoining bay’s roof. Ragubir claimed that he reasonably expected that he could have safely occupied the bay next to the one that the excavator was addressing. Plaintiff’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law

§ 240(1), and that Ragubir was not provided the proper, safe equipment that is a requirement of the statute. Plaintiff’s counsel also contended that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law § 241(6). Plaintiff’s counsel further contended that the defendants violated Labor Law § 200, which defines general workplace-safety requirements.

Defense counsel contended that Ragubir knowingly occupied an area beneath a roof that was intended to be demolished and was therefore liable for having been struck by falling debris.

Each side moved for summary judgment of liability. Judge Mary Ann Brigantti-Hughes denied plaintiff’s counsel’s motion, and she granted defense counsel’s motion regarding the claims based on Labor Law §§ 200 and 241(6). Plaintiff’s counsel appealed, and the appellate division, First Department, partially reversed the lower court’s judgment. The First Department found that the defendants violated Labor Law § 240(1). The matter proceeded to damages.

injurieS/dAMAGeS capsulorrhaphy; contusion; debridement; decreased range of motion; fracture, pelvis; fracture, pubic ramus; hematoma; herniated disc at L4-5; herniated disc at L5-S1; labrum, tear (hip); leg; nerve impingement; physical therapy; radicular pain / radiculitis; rhizotomy; synovectomy; synovitis; trigger point injection

Ragubir endured about 30 minutes in which he was trapped beneath debris. He was extracted, placed in an ambulance and transported to Champlain Valley Physicians Hospital, in Plattsburgh. He claimed that his back, his left hip, his legs and his torso were painful. He was soon transferred to the University of Vermont Medical Center, in Burlington, Vt. His hospitalizations lasted a total of four days.

Ragubir ultimately claimed that he suffered a tear of his left hip’s labrum, a contusion of his left hip, a fracture of his pelvis’s right inferior pubic ramus, and herniations of his L4-5 and L5-S1 intervertebral discs. He claimed that he developed a hematoma deep within his pelvis, that his L5-S1 disc caused impingement of a spinal nerve and resultant radicular pain that extended to his legs, and that his left hip developed synovitis, which involved inflammation of the tissue that lined the hip’s joint.

After 75 days had passed, Ragubir commenced a course of conservative treatment that comprised physical therapy, the administration of painkilling facet-block injections, which were directed to his spine’s lumbar region, and the administration of a painkilling trigger-point injection, which was directed to his left hip. The physical therapy lasted until Aug. 21, 2017, though it was rendered sporadically.

On Dec. 24, 2014, Ragubir underwent an endoscopic rhizotomy, which involved destruction of the root of his spine’s L5 nerve.

On Aug. 3, 2015, Ragubir underwent surgery that addressed his left hip. The procedure included debridement of the labrum, a capsulorrhaphy, which involved a repair of the capsule of the hip’s joint, and a synovectomy, which involved excision of inflamed tissue.


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new york city

Ragubir claimed that his back remains painful, that his left hip remains painful, that he suffers a residual diminution of each area’s range of motion, that his radicular pain persists, and that his residual effects hinder his ambulation. He also claimed that his residual effects prevent his performance of manual labor. He did not work during the 23 months that followed the accident, and he has not worked since 2014.

Ragubir’s treating orthopedist submitted a report in which he opined that Ragubir’s left hip will require further surgery, that Ragubir must undergo fusion of a portion of the spine’s lumbar region, and that Ragubir requires a pain-management regimen.

Ragubir sought recovery of past and future medical expenses, past and future lost earnings, and damages for past and future pain and suffering.

The defense’s expert orthopedist submitted a report in which he opined that Ragubir’s surgeries produced an excellent result. The defense’s vocational-rehabilitation expert submitted a report in which he opined that Ragubir can perform some type of work.

reSuLt The parties negotiated a pretrial settlement. Gibraltar Management’s insurer tendered its policy, which provided $1 million of coverage; RA Lynch Excavating’s primary insurer tendered its policy, which provided $1 mil-lion of coverage; and RA Lynch Excavating’s excess insur-er agreed to pay $1 million, from a policy that provided $25 million of coverage. Thus, the settlement totaled $3 mil-lion. The negotiations were mediated by Robert Adams, of National Arbitration and Mediation Inc.

inSurer(S) Erie Indemnity Co. for RA Lynch Excavating (primary insurer)

American International Group Inc. for RA Lynch Excavating (excess)

Charter Oak Fire Insurance Co. Inc. for Gibraltar Management

PLAintiffexPert(S) Charles A. Kincaid, Ph.D., vocational

rehabilitation, Hackensack, NJ (did not testify)

Alan M. Leiken, Ph.D., economics, Stony Brook, NY (did not testify)

Andrew A. Merola, M.D., orthopedic surgery, New York, NY (treating doctor; did not testify)

Barry C. Root, M.D., physical medicine, Glen Cove, NY (did not testify)

Steven J. Touliopoulos, M.D., orthopedic surgery, Astoria, NY (did not testify)

defenSeexPert(S) Peter D. Capotosto, M.S., C.R.C.,

vocational rehabilitation, Rochester, NY (did not testify)

Herbert S. Sherry, M.D., orthopedic surgery, New York, NY (did not testify)

editor’S note This report is based on information that was provided by plaintiff’s counsel. Additional information was gleaned from court documents. Defense counsel received a draft of the report, but he did not provide feedback.

–Jack Deming

rAiLroAdSubway Accident — Transportation — Rail — Railroad Accident

Plaintiff claimed train’s sudden start caused fall, hip fractureVerdict Liability onlyActuAL $1,507,765

cASe Aleyanesh Sebhat v. MTA New York City Transit also Known as New York City Transit Authority, No. 301202/08

court Bronx SupremejudGe Lizbeth GonzalezdAte 11/15/2017

PLAintiffAttorney(S) Theodore H. Friedman, of counsel,

Barasch McGarry Salzman & Penson PC, New York, NY

Dominique A. Penson, Barasch McGarry Salzman & Penson, New York, NY

defenSeAttorney(S) Y. Gail Goode (lead), New York City Transit

Authority, Brooklyn, NY Jessica Acosta-Pettyjohn, New York City

Transit Authority, Brooklyn, NY

fActS & ALLeGAtionS On May 13, 2007, plaintiff Aleyanesh Sebhat, 62, a babysitter, boarded a subway train that was stopped in a station located alongside the intersection of Laconia Avenue and the Esplanade, in the Pelham Parkway section of the Bronx. The train resumed travel before Sebhat could seat herself. Sebhat fell onto the train’s floor, and she suffered a fracture of her left hip.

Sebhat sued the train’s operator, the New York City Transit Authority, and its parent, the Metropolitan Transportation Authority. Sebhat alleged that her fall was a result of a negligent act by the train’s motorman. Sebhat further alleged that the defendants were vicariously liable for the motorman’s actions.

On March 14, 2014, a jury found that the defendants were liable for the accident. It determined that Sebhat’s damages totaled $1.5 million, which comprised $1.2 million

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new york city

for past pain and suffering and $300,000 for future pain and suffering. Post-trial motions were denied, and defense counsel appealed. The appellate division, First Department, set aside the jury’s finding of liability. The First Department found that the Supreme Court erred by allowing plaintiff’s counsel’s introduction of train-operator rules that imposed a standard of care greater than that required by common law. The First Department also sided with the defense regarding an issue of attorney-client privilege. Damages were appealed but upheld. The matter was remanded for a retrial that addressed liability.

During the retrial, Sebhat claimed that her fall was a result of the train having suddenly and violently lurched upon resuming travel. Sebhat’s adult daughter and an adult friend, who were present when the accident occurred, corroborated Sebhat’s claim. Sebhat’s treating orthopedist reviewed X-rays of Sebhat’s fracture, and he opined that the fracture’s characteristics suggested that it was caused by the type of trauma that the witnesses described. Plaintiff’s counsel presented a conductor who had been employed by the defendants. The witness estimated that, in his experience, the subject model of train experienced three to five violent starts a year, though he also claimed that the events were sometimes a product of a power surge.

The train’s movements were monitored by an event-data recorder, but the defendants did not produce the device’s recording. The parties stipulated that plaintiff’s counsel requested the device’s data nine times and that the data, if preserved, would have revealed the speed of the train.

Defense counsel contended that Sebhat could not prove that the train moved unusually or violently. The defense noted that Sebhat was the only passenger who reported a fall or an injury. Defense counsel argued that the accident was a result of Sebhat having failed to utilize one of the railings and poles that are available for standing passengers.

The defense’s expert witnesses were precluded because of disclosure issues.

injurieS/dAMAGeS comminuted fracture; decreased range of motion; fracture, femur; fracture, hip; internal fixation; open reduction

Damages were determined during the first trial and sustained by the First Department. Thus, damages were not before the court during the retrial.

Sebhat suffered a comminuted, displaced fracture of her left femur’s intertrochanteric region, which is a component of the left hip. She was placed in an ambulance, and she was transported to Jacobi Medical Center, in the Bronx. After two days had passed, her fracture was addressed via open reduction and the internal fixation of an intramedullary rod and screws. Sebhat’s hospitalization lasted about a week, and she subsequently underwent about four weeks of inpatient rehabilitative therapy.

Sebhat claimed that she suffers residual pain, that she suffers a residual diminution of her left hip’s range of motion, that she requires use of an assistive walking device, and that her residual effects hinder her performance of everyday

activities, such as cleaning and cooking. She claimed that she previously enjoyed an active lifestyle that involved a great deal of recreational walking, but that her residual effects have imposed a largely sequestered existence. She sought recovery of damages for past and future pain and suffering.

Defense counsel contended that Sebhat achieved a good recovery.

reSuLt The retrial’s jury found that the train suddenly and violently lurched, and it determined that the movement was a proximate cause of Sebhat’s injury. It also found that Sebhat negligently failed to secure herself after boarding the train, but it determined that Sebhat’s negligence was not a proximate cause of her injury. Thus, the defendants were entirely liable for the accident, and Sebhat therefore recovered $1.5 million, which represented the entirety of the damages awarded by the first trial’s jury. Sebhat also recovered interest and costs totaling $7,765.

triAL detAiLS Trial Length: 4 weeks Trial Deliberations: 1 day Jury Vote: 6-0

PLAintiffexPert(S) Carl Berkowitz, Ph.D., transportation,

Moriches, NY Michael D. Hossack, M.D., orthopedic

surgery, Bronx, NY

defenSeexPert(S) Alfred Cipriani, P.E., accident

reconstruction, Glen Burnie, MD (did not testify [precluded])

Edward A. Toriello, M.D., orthopedic surgery, Middle Village, NY (did not testify [precluded])

editor’S note This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents and from the New York Injury Cases Blog.

–Alan Burdziak



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new york city

conStructionLabor Law — Workplace — Workplace Safety

Laborer burned in accident while tarring roofMediAtedSettLeMent $4,750,000

cASe Bardul Pesjaka v. City of New York, NYC School Construction Authority, NYC Department of Education and Leon D. DeMatteis Construction Corp, No. 300797/11

court Bronx SupremeneutrAL(S) Joseph P. SpinoladAte 6/1/2017

PLAintiffAttorney(S) William Ricigliano (lead), William

Ricigliano, P.C., New York, NY Shanna Bailey, William Ricigliano, P.C.,

New York, NY

defenSeAttorney(S) Mathew P. Ross, Wilson, Elser, Moskowitz,

Edelman & Dicker LLP, New York, NY

fActS & ALLeGAtionS On May 21, 2010, plaintiff Bardul Pesjaka, a laborer in his 40s, worked at a construction site that was located at 730 Concourse Village W., in the Concourse Village section of the Bronx. Pesjaka fell while he was tarring a roof. His arms and face were burned by hot tar.

Pesjaka sued the premises’ owner, the city of New York; the premises’ tenant, the New York City Department of Education; the construction project’s manager, the New York City School Construction Authority; and the project’s general contractor, Leon D. DeMatteis Construction Corp. Pesjaka alleged that the defendants negligently failed to provide a safe workplace. He further alleged that the defendants’ failure constituted a violation of the New York State Labor Law.

Pesjaka claimed that his fall was a result of him having tripped on the roof’s surface. His face was not covered, and he was wearing a short-sleeved shirt and a small pair of gloves, so his face and arms were mostly exposed to the hot tar. Plaintiff’s counsel contended that Pesjaka should have been provided a mask and arm-length heat- and chemical-resistant gloves. The rooftop also lacked a washing station. Plaintiff’s counsel contended that immediate application of water would have reduced the extent of Pesjaka’s tissue damage.

Plaintiff’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Pesjaka was not provided the proper, safe equipment that is a requirement of the statute. Plaintiff’s

counsel also contended that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law § 241(6).

Defense counsel contended that the accident was a result of Pesjaka having failed to watch his steps.

injurieS/dAMAGeS arm; burns, chemical; burns, second degree; burns, third degree; complex regional pain syndrome; debridement; face; reflex sympathetic dystrophy; scar and/or disfigurement, arm; scar and/or disfigurement, face; skin graft

Pesjaka suffered second- and third-degree burns of his forehead and his right, dominant forearm. He was transported to a hospital. After having been transferred to another hospital, he underwent debridement of his wounds and the application of grafts of skin. His hospitalizations lasted a total of 18 days.

Pesjaka claimed that he developed complex regional pain syndrome, which is a chronic neurological condition that is typically characterized by severe pain, pathological changes of bone and skin, swollenness, and/or increased sensitivity to physical stimulus. The syndrome is alternately termed “reflex sympathetic dystrophy.”

Pesjaka underwent 12 surgeries, which largely involved debridement of wounds and the application of grafts of skin. In November 2013, he underwent surgical implantation of a device that provides pain-relieving stimulation of spinal nerves. His most recent surgery was performed in June 2014.

Pesjaka claimed that he suffers ongoing pain. He undergoes a pain-management regimen. He also claimed that he requires use of special garments that protect his right arm, that he will require lifelong use of his implanted stimulator, and that his pain prevents his performance of basic physical activities, such as dressing himself, cooking, performing household chores and operating motor vehicles. He further claimed that his pain prevents his resumption of work. He retains scars of his forehead and his right arm.

Pesjaka sought reimbursement of a workers’ compensation lien in the approximate amount of $500,000, recovery of a total of about $2.15 million for past and future lost earnings, and recovery of unspecified damages for past and future pain and suffering.

reSuLt The parties negotiated a pretrial settlement. Leon D. DeMatteis Construction’s insurers, which were obligated to indemnify the remaining defendants, agreed to pay a total of $4.75 million. The primary insurer tendered its policy, which provided $4 million of coverage, and the excess insurer agreed to pay $750,000, from a policy that provided $25 million of coverage. The settlement also included a waiver of Pesjaka’s workers’ compensation lien. The settlement’s negotiations were mediated by Joseph Spinola, of Resolute Systems, LLC.

inSurer(S) Lloyd’s of London for all defendants (primary insurer)

Liberty Mutual Insurance Co. for all defendants (excess)



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PLAintiffexPert(S) Harold Bialsky, D.C., life-care planning,

Jersey City, NJ (did not testify) Leo J. DeBobes, C.S.P., employee safety,

Stony Brook, NY (did not testify) Ronald E. Missun, Ph.D., economics,

Louisville, KY (did not testify) Harold I. Zeliger, Ph.D., chemistry,

South Portland, ME (did not testify)

defenSeexPert(S) Marco Pappagallo, M.D., pain management,

Bronx, NY (did not testify) Mark Ramnauth, M.A., C.R.C., vocational

rehabilitation, New York, NY (did not testify) Elan B. Singer, M.D., plastic surgery/

reconstructive surgery, New York, NY (did not testify)

editor’S note This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.

–Aaron Jenkins

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featured verdICt

worker/workPLAce neGLiGenceLabor Law — Workplace — Workplace Safety — Slips, Trips & Falls

Worker plummeted two stories in collapse at demolition siteVerdict $6,500,000

cASe Segundo Juan Zhicay v. 236 Buffalo Realty LLC, No. 25336/11

court Kings SupremejudGe Pamela L. FisherdAte 11/20/2017

PLAintiffAttorney(S) Chris Vargas, Gorayeb & Associates, P.C.,

New York, NY

defenSeAttorney(S) Michael J. Mahon, Law Offices of Michael

J. Mahon, Nanuet, NY

fActS & ALLeGAtionS On Oct. 25, 2011, plaintiff Segundo Zhicay, 34, a laborer, worked at a job site that was located at 236 Buffalo Ave., in the Weeksville section of Brooklyn.

Workers were demolishing a three-story building. The building’s third-story floor collapsed beneath Zhicay’s feet. The lower floors had already been demolished, so Zhicay plummeted to ground level. He claimed that he suffered injuries of his back, a knee, his neck and his shoulders.

Zhicay sued the premises’ owner, 236 Buffalo Realty LLC. Zhicay alleged that 236 Buffalo Realty negligently failed to provide a safe workplace. Zhicay further alleged that 236 Buffalo Realty’s failure constituted a violation of the New York State Labor Law.

Zhicay claimed that he was not provided necessary equipment that could have prevented his fall or his injuries. Plaintiff’s counsel contended that Zhicay should have been provided a safety harness and a scaffold, and he also contended that a net should have been deployed beneath the third-floor work area. He contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Zhicay was not provided the proper, safe equipment that is a requirement of the statute.

Plaintiff’s counsel moved for summary judgment of liability, and the motion was granted. The trial addressed damages.

injurieS/dAMAGeS acromioplasty; arthroscopy; crepitation; debridement; decreased range of motion; discectomy; epidural injections; fusion, cervical; glenoid labrum, tear; hardware implanted; headaches; herniated disc at C3-4; herniated disc at C5-6; herniated disc at C6-7; herniated disc at L5-S1; herniated disc at T10-11; herniated disc at T6-7; herniated disc at T9-10; knee surgery; medial meniscus, tear; meniscectomy; physical therapy; shoulder impingement; synovectomy; synovitis; trigger point injection

Zhicay was placed in an ambulance, and he was transported to Kings County Hospital Center, in Brooklyn. He was sedated, and he was administered painkillers. His hospitalization lasted about a week.

Zhicay ultimately claimed that he suffered herniations of his C3-4, C5-6, C6-7, T6-7, T9-10, T10-11 and L5-S1 intervertebral discs, a tear of his left knee’s medial meniscus, a partial tear of each shoulder’s rotator cuff, a tear of each shoulder’s glenoid labrum, and trauma that produced impingement of his right shoulder. He claimed that his left shoulder developed synovitis, which involves inflammation of tissue that lines a joint, that his shoulders and his left knee developed crepitus, which is a tissue abnormality that causes crackling of a joint, and that he developed residual migraines.

Zhicay underwent about five years of physical therapy. The treatment was typically rendered three times a week. He also underwent administration of about four epidural injections of steroid-based painkillers, administration of 10 painkilling trigger-point injections, and administration of injections of a neurotoxic protein, Botox, which addressed his migraines.

Zhicay also underwent arthroscopic surgeries that addressed his shoulders and his left knee, and he underwent open surgery that addressed his spine’s cervical region. The left knee’s surgery included a meniscectomy, which involved excision of damaged portions of the knee’s menisci. The left shoulder’s surgery included a synovectomy, which involved



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excision of some of the tissue that lined the shoulder’s joint. The right shoulder’s surgery included debridement of damaged tissue and an acromioplasty, which involved shaving of bone. The spinal surgery included a discectomy—which involved excision of the C5-6 and C6-7 discs—fusion of the corresponding levels of the spine and the implantation of stabilizing hardware.

Zhicay claimed that he suffers ongoing pain, that his pain limits his tolerance of prolonged periods in which he is seated or standing, that he suffers a residual diminution of each shoulder’s range of motion, and that his migraines persist. He also claimed that his pain prevents his resumption of rigorous physical labor. He has procured work as a livery vehicle’s driver, but he claimed that his pain does not permit full-time performance of the job. He also claimed that he requires a pain-management regimen.

Zhicay sought recovery of about $4 million for future medical expenses, unspecified damages for past pain and suffering, and unspecified damages for future pain and suffering.

Defense counsel contended that Zhicay exaggerated the extent of his future medical needs.

reSuLt The jury found that Zhicay’s damages totaled $6.5 million.

SeGundoZhicAy $3,000,000 future medical cost $2,000,000 past pain and suffering $1,500,000 future pain and suffering $6,500,000

deMAnd $8,500,000offer $2,100,000

triAL detAiLS Trial Length: 5 days Trial Deliberations: 2.5 hours Jury Vote: 6-0 Jury Composition: 3 male, 3 female

PLAintiffexPert(S) Paul M. Brisson, M.D., orthopedic surgery,

New York, NY (treating doctor) Fred Goldman, Ph.D, economics,

New York, NY Jeffrey Kaplan, M.D., orthopedic surgery,

New York, NY Thomas M. Kolb, M.D., radiology,

New York, NY (treating doctor) Gary Thomas, M.D., pain management,

New York, NY (treating doctor)

defenSeexPert(S) None reported

editor’S note This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents.

–Alan Burdziak

Motor VehicLeStop Sign — Broadside — Intersection — Multiple Vehicle

Plaintiff alleged motorist ignored stop sign, caused crashVerdict $100,000ActuAL $50,000

cASe Pancho Ellis and Vernida Robinson-Ellis v. Michelle Ponder, No. 501142/15

court Kings SupremejudGe Genine D. EdwardsdAte 11/16/2017

PLAintiffAttorney(S) Halina Radchenko, Hach & Rose, LLP,

New York, NY

defenSeAttorney(S) Michael Mutarelli, James G. Bilello &

Associates, Hicksville, NY

fActS & ALLeGAtionS On Oct. 24, 2013, plaintiff Pancho Ellis, 62, a retiree, was driving on the westbound side of Farragut Road, near its intersection at East 93rd Street, in the Canarsie section of Brooklyn. While he was proceeding through the intersection, his sport utility vehicle’s right side was struck by a car that was being driven by Michelle Ponder, who was traveling on East 93rd Street. Ellis’ vehicle overturned. Ellis claimed that he suffered injuries of his back, his knees, his neck and his shoulders.

Ellis sued Ponder. Ellis alleged that Ponder was negligent in the operation of her vehicle. The matter proceeded to a summary jury trial.

Ellis claimed that Ponder ignored a stop sign that governed her entrance to the intersection. Ellis’ course was not governed by a traffic-control device.

Ponder claimed that she executed a full stop upon reaching the intersection. She claimed that she did not see Ellis’ vehicle before entering the intersection, and she contended that he was speeding.

injurieS/dAMAGeS acupuncture; bulging disc, cervical; bulging disc, lumbar; chiropractic; decreased range of motion; effusion; glenoid labrum, tear; herniated disc at C3-4; herniated disc at C4-5; herniated disc at L5-S1; lateral meniscus, tear; medial collateral ligament, damage; medial meniscus, tear; nerve impingement; physical therapy; rotator cuff, injury (tear); swelling

Ellis was placed in an ambulance, and he was transported to Kings County Hospital Center, in Brooklyn. He underwent minor treatment.

Ellis ultimately claimed that he suffered a tear of his right, dominant shoulder’s glenoid labrum, a partial-thickness tear of his left shoulder’s rotator cuff, herniations of his



new york city

C3-4, C4-5 and L5-S1 intervertebral discs, and trauma that produced bulges of his C5-6, C6-7, C7-T1, L2-3, L3-4 and L4-5 discs. Ellis also claimed that he suffered a tear of the anterior horn of his left knee’s lateral meniscus, a tear of the anterior horn of his left knee’s medial meniscus, a sprain of his left knee’s medial collateral ligament, a tear of the anterior horn of his right knee’s lateral meniscus, a tear of the posterior horn of his right knee’s lateral meniscus, and a tear of the anterior horn of his right knee’s medial meniscus. He claimed that his knees developed minor effusion: swollenness caused by a buildup of a joint’s lubricating fluid. He also claimed that his bulging and herniated discs caused impingement of spinal nerves.

Ellis immediately commenced a course of conservative treatment, which comprised acupuncture, chiropractic manipulation and physical therapy. The treatment lasted about 18 months. Doctors recommended surgeries that would address Ellis’ knees, surgeries that would address Ellis’ shoulders and the administration of epidural injections of steroid-based painkillers, but Ellis declined to undergo the treatment.

Ellis claimed that his back, his knees, his neck and his shoulders remain painful, that he suffers a residual diminution of his range of motion, that his residual effects hinder his ability to sleep, that his residual effects limit his tolerance of prolonged periods in which he is seated, and that his residual effects hinder his performance of physical activities.

Ellis sought recovery of damages for past and future pain and suffering. His wife presented a derivative claim, but her claim was ultimately withdrawn.

Defense counsel contended that Mr. Ellis did not suffer a serious injury, as defined by the no-fault law, Insurance Law § 5102(d). The defense’s expert orthopedist examined Ellis, and he submitted a report in which he opined that Ellis’ injuries were nothing more than sprains and strains. Defense counsel contended that any other injuries were degenerative conditions that stemmed from years of physical labor.

The parties stipulated that damages could not exceed $50,000, which represented the limit of Ponder’s insurance’s coverage.

reSuLt The jury found that Ponder was liable for the acci-dent. It also found that Ellis suffered a serious injury. It deter-mined that Ellis suffers significant limitation of use of a body function or system.

The jury found that Ellis’ damages totaled $100,000, but Ellis recovered the stipulated limit: $50,000.

PAncho eLLiS $50,000 past pain and suffering $50,000 future pain and suffering $100,000

deMAnd $50,000offer None

inSurer(S) Government Employees Insurance Co.

triAL detAiLS Trial Length: 1 day Trial Deliberations: 45 minutes

PLAintiffexPert(S) Igor Stiler, M.D., neurology, Brooklyn, NY

(treating doctor; did not testify; submitted report)

defenSeexPert(S) Jeffrey Passick, M.D., orthopedic surgery,

Brooklyn, NY (did not testify; submitted report)

editor’S note This report is based on information that was provided by plaintiffs’ and defense counsel. Additional information was gleaned from court documents.

–Alan Burdziak

Motor VehicLeMultiple Vehicle

Plaintiff: Auto accident caused injuries of knee, spine, shoulderVerdict $82,500

cASe Michael Bakayev v. David Berger and Malka Berger, No. 507397/14

court Kings SupremejudGe Bernard J. GrahamdAte 11/14/2017

PLAintiffAttorney(S) David Weissman, Khavinson & Associates

PC, Brooklyn, NY

defenSeAttorney(S) Irina Zamyatin, Harris, King, Fodera &

Correia, New York, NY

fActS & ALLeGAtionS On March 7, 2014, plaintiff Michael Bakayev, a store’s manager in his 20s, was driving on New Utrecht Avenue, near its intersection at 48th Street, in the Borough Park section of Brooklyn. While Bakayev was reversing his vehicle, attempting to park alongside a curb, his vehicle’s rear end collided with the front end of a vehicle that was being driven by David Berger, who was advancing forward, attempting to park in the area that Bakayev selected. Bakayev claimed that he suffered injuries of his back, a knee, his neck and a shoulder.

Bakayev sued Berger and the owner of Berger’s vehicle, Malka Berger. Bakayev alleged that David Berger was negligent in the operation of his vehicle. Bakayev further alleged that



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Malka Berger was vicariously liable for David Berger’s actions. The matter proceeded to a summary jury trial.

Bakayev claimed that he was legally parking when the collision occurred. He contended that his attention was focused on parking his vehicle and that, as such, he did not notice David Berger, who had performed a U-turn or three-point turn to reach the area in which the collision occurred.

Berger claimed that he reached the area first and had begun parking when Bakayev began reversing. Berger further claimed that he sounded his vehicle’s horn upon noticing Bakayev’s vehicle, but that Bakayev did not respond.

injurieS/dAMAGeS acupuncture; arthroscopy; bulging disc, cervical; chiropractic; debridement; glenoid labrum, tear; herniated disc at T12-L1; knee surgery; medial meniscus, tear; physical therapy; synovectomy; synovitis

During the week that followed the accident, Bakayev presented to a medical clinic. He was referred for an MRI scan.

Bakayev ultimately claimed that he suffered a tear of the posterior horn of his right knee’s medial meniscus, a tear of his right shoulder’s glenoid labrum, a herniation of his T12-L1 intervertebral disc and trauma that produced a bulge of his C4-5 disc. He claimed that his right shoulder developed synovitis: inflammation of tissue that lines a joint.

After 82 days had passed, Bakayev underwent arthroscopic surgery that addressed his right knee. The procedure included debridement of damaged tissue and a synovectomy, which involved excision of inflamed tissue.

Bakayev also underwent a total of more than 120 sessions of acupuncture, chiropractic manipulation and physical therapy. The treatment spanned about six months.

Bakayev claimed that his back and his right knee remain painful, that his pain limits his tolerance of prolonged periods in which he is seated, and that his pain hinders his performance of basic physical activities, such as seating himself, playing with his children or exercising. He also claimed that his pain hinders his performance of his job’s tasks.

Bakayev sought recovery of damages for past and future pain and suffering.

Defense counsel contended that Bakayev did not suffer a serious injury, as defined by the no-fault law, Insurance Law § 5102(d). She contended that Bakayev’s injuries were degenerative conditions, not related to the accident.

The parties negotiated a high/low stipulation: Damages could not exceed $100,000, but they had to equal or exceed $10,000.

reSuLt The jury found that Berger was liable for the acci-dent. It also found that Bakayev suffered a serious injury. It determined that Bakayev suffers significant limitation of use of a body function or system, though it also determined that he does not suffer permanent consequential limitation of use of a body organ or member.

The jury found that Bakayev’s damages totaled $82,500.

MichAeLBAkAyeV $75,000 past pain and suffering $7,500 future pain and suffering (25 years) $82,500

inSurer(S) American States Insurance Co. for both defendants

PLAintiffexPert(S) Mark S. McMahon, M.D., orthopedic

surgery, New York, NY (did not testify; submitted report)

Sayeedus S. Salehin, M.D., internal medicine, Brooklyn, NY (treating doctor; did not testify; submitted report)

Vladimir B. Shur, M.D., orthopedic surgery, Brooklyn, NY (treating doctor; did not testify; submitted report)

defenSeexPert(S) Edward A. Toriello, M.D., orthopedic

surgery, Middle Village, NY (did not testify; submitted report)

editor’S note This report is based on information that was provided by plaintiff’s counsel. Additional information was gleaned from court documents. Defense counsel did not respond to the reporter’s phone calls.

–Alan Burdziak

Motor VehicLeNo-Fault Case — Question of Lights — Left Turn — Intersection

Plaintiff not injured in auto accident, defense contendedVerdict defense

cASe Niloufar Parhami v. Yaakov S. Marcus and Chaim Amron Marcus, No. 7513/14

court Kings SupremejudGe Mark I. PartnowdAte 11/6/2017

PLAintiffAttorney(S) Adam D. Glassman, The Glassman Law

Group, Lynbrook, NY

defenSeAttorney(S) Ivonne Estevez-Sarkinen, James G. Bilello &

Associates, Hicksville, NY

fActS & ALLeGAtionS On Dec. 2, 2013, plaintiff Niloufar Parhami, 49, a bank’s teller, was driving on McDonald Avenue, near its intersection at Cortelyou Road,



new york city

in Brooklyn. While Parhami was proceeding through the intersection, her vehicle struck the right side of a vehicle that was being driven by Chaim Marcus, who was executing a left turn onto the same side of McDonald Avenue, from Cortelyou Road. Parhami claimed that she suffered an injury of a shoulder.

Parhami sued Marcus and the owner of Marcus’ vehicle, Yaakov Marcus. Parhami alleged that Chaim Marcus was negligent in the operation of his vehicle. Parhami further alleged that Yaakov Marcus was vicariously liable for Chaim Marcus’ actions.

Parhami claimed that a green traffic signal permitted her entrance to the intersection. She claimed that Chaim Marcus ignored a red signal.

Marcus claimed that a green signal permitted his entrance to the intersection. He claimed that Parhami ignored a red signal.

A summary jury trial was scheduled, but Marcus would not have been available to testify during the trial. During a pretrial evidentiary hearing, Judge Mark Partnow ruled that the defendants were liable for the accident. Thus, the trial only addressed damages.

injurieS/dAMAGeS acupuncture; arthroscopy; chiropractic; decreased range of motion; physical therapy; rotator cuff, injury (tear)

During the week that followed the accident, Parhami presented to a doctor. She claimed that her right, dominant arm’s shoulder was painful. Conservative treatment was recommended.

Parhami ultimately claimed that she suffered a tear of her right shoulder’s rotator cuff. She underwent a total of about three months of conservative treatment that included acupuncture, chiropractic manipulation and the administration of painkilling injections, but she claimed that she suffered ongoing pain. In March 2014, she underwent arthroscopic surgery that addressed her right shoulder. The procedure was followed by about six weeks of physical therapy.

Parhami claimed that her right shoulder remains painful, that she suffers a residual diminution of the shoulder’s range of motion, and that her residual effects hinder her performance of simple physical activities, such as opening doors, operating a car or lifting an object whose weight exceeds 2 pounds. She also claimed that she requires use of a wrist guard when working and that her employer has granted an accommodation regarding tasks that involve lifting heavy objects.

Parhami sought recovery of damages for past and future pain and suffering.

Defense counsel contended that Parhami did not suffer a serious injury, as defined by the no-fault law, Insurance Law § 5102(d). She claimed that a post-accident MRI scan did not reveal a tear of Parhami’s right shoulder’s rotator cuff.

Defense counsel also noted that Parhami’s workplace accommodations predate the accident and address unrelated conditions, such as carpal tunnel syndrome. Defense counsel

further noted that Parhami has been able to vacation twice since the accident.

The parties negotiated a high/low stipulation: Damages could not exceed $100,000, but they had to equal or exceed $10,000.

reSuLt The jury rendered a defense verdict. It found that Parhami did not suffer a serious injury. It determined that Parhami does not suffer permanent consequential limitation of use of a body organ or member and that she did not suffer significant limitation of use of a body function or system. The jury’s finding precluded an award of damages, but Parhami recovered the stipulated minimum: $10,000.

inSurer(S) Government Employees Insurance Co. for both defendants

triAL detAiLS Trial Length: 1 day Jury Vote: 6-0 Jury Composition: 3 male, 3 female

PLAintiffexPert(S) Raz Winiarsky, M.D., orthopedic surgery,

Brooklyn, NY (treating doctor; did not testify; submitted report)

defenSeexPert(S) Igor Rubinshteyn, M.D., orthopedic surgery,

Brooklyn, NY (did not testify; submitted report)

editor’S note This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to the reporter’s phone calls.

–Melissa Siegel



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new york city

PreMiSeS LiABiLityNegligent Repair and/or Maintenance

Defense: Storm, not sprinkler system, flooded plaintiff’s premisesVerdict defense

cASe Medi-Tech International Corporation v. 19-20 Industry City Associates, LLC, No. 500780/13

court Kings SupremejudGe Bernard J. GrahamdAte 7/17/2017

PLAintiffAttorney(S) Louis A. Badolato, Fortunato & Fortunato,

PLLC, Brooklyn, NY

defenSeAttorney(S) Joshua Cash, Wilson, Elser, Moskowitz,

Edelman & Dicker LLP, New York, NY Gregory J. Dell, Wilson, Elser, Moskowitz,

Edelman & Dicker LLP, New York, NY Adam J. Heckler, Wilson, Elser, Moskowitz,

Edelman & Dicker LLP, New York, NY Larry H. Lum, Wilson, Elser, Moskowitz,

Edelman & Dicker LLP, New York, NY

fActS & ALLeGAtionS On Oct. 29, 2012, plaintiff Medi-Tech International Corp., a manufacturer and distributor of medical supplies, suffered extensive inventory loss as a result of flooding of a basement storage facility located at 147 41st St., in the Sunset Park section of Brooklyn. Medi-Tech International claimed that the flood was caused by a malfunction of the basement’s fire-suppression sprinkler system.

Medi-Tech International sued the premises’ owner, 19-20 Industry City Associates, LLC. The lawsuit alleged that 19-20 Industry City Associates was negligent in its maintenance of the fire-suppression system.

The flood occurred during a hurricane. Medi-Tech International’s expert engineer contended that the storm interrupted the power supply of water-system pumps that serviced the subject premises. The expert contended that, when power was restored, a resultant increase of water pressure dislodged the sprinklers’ heads and allowed leakage of water. The expert inspected the basement during the month that followed the storm, and he estimated that the basement flooded to a height of 3.4 feet, based on his assumption that five sprinklers leaked throughout a period of five days in which the subject building was inaccessible. The expert also claimed that the floodwater was tap water, rather than seawater, and therefore could not have been storm water. Medi-Tech International’s expert surveyor opined that the building was elevated to an extent that would have prevented flooding of the basement. Plaintiff’s counsel

presented a videotape, recorded during the storm, that showed a sprinkler leaking in the basement.

Plaintiff’s counsel contended that the sprinklers’ leaks should have triggered the fire-suppression system’s alarm, but that the system’s monitor malfunctioned. He claimed that the monitor had been malfunctioning since 2006 and that 19-20 Industry City Associates had been aware of the malfunction.

Defense counsel contended that the basement’s flood was caused by the hurricane. They contended that storm water entered a neighboring building and reached the subject premises via a tunnel that joined the buildings. The defense’s expert geologist agreed that the hurricane could have flooded the subject premises. Defense counsel presented the premises’ plumber, who had drained the basement’s flood. The plumber claimed that the floodwater was salty, thus suggesting that it was storm water. The plumber further claimed that the floodwater nearly reached the basement’s ceiling, which was situated some 12 feet above the basement’s floor.

Defense counsel also challenged the contention that the fire-suppression system malfunctioned. The defense’s sprinkler-system expert opined that the hurricane did not interrupt the power supply of the premises’ water-system pumps. Defense counsel noted that the fire-suppression system successfully passed an inspection performed by the Fire Department of the City of New York some two weeks prior to the hurricane. Defense counsel also noted that merely one of the fire-suppression system’s sprinklers was preserved by Medi-Tech International.

injurieS/dAMAGeS The trial was bifurcated. Damages were not before the court.

Medi-Tech International claimed that the flood contaminated nearly $6 million of inventory.

reSuLt The jury rendered a defense verdict.

triAL detAiLS Trial Length: 3 weeks Trial Deliberations: 1 hour Jury Vote: 6-0

PLAintiffexPert(S) Frank S. Ferrantello, land surveying,

Plainview, NY Richard J. Trieste, P.E., engineering,

Staten Island, NY

defenSeexPert(S) Jerry Naylis, sprinkler systems,

Bergenfield, NJ Dan Sullivan, hydrogeology, Islandia, NY

editor’S note This report is based on information that was provided by defense counsel. Additional information was gleaned from court documents. Plaintiff’s counsel declined to contribute.

–Melissa Siegel



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new york count y

GoVernMentExcessive Force — Intentional Torts — Assault and Battery — Police

Man’s finger not injured during arrest, police officer claimedVerdict defense

cASe Kevin Cancel v. The Port Authority of New York and New Jersey, and P.O. Johany Brugnoni (Shield No. 2932)., No. 156058/14

court New York SupremejudGe Carol Robinson EdmeaddAte 11/16/2017

PLAintiffAttorney(S) Jeffrey Zeichner, Bronx, NY

defenSeAttorney(S) Karla Denalli, Port Authority of New

York and New Jersey, New York Litigation Division, New York, NY

fActS & ALLeGAtionS On July 11, 2013, plaintiff Kevin Cancel, 48, a food-preparation worker, was arrested. The arrest was effected by police officer Johany Brugnoni, at a bus terminal that was located on West 41st Street, between Eighth and Ninth avenues, in Manhattan. Cancel claimed that one of his fingers was injured during the arrest.

Cancel sued Brugnoni and Brugnoni’s employer, the Port Authority of New York and New Jersey. Cancel alleged that Brugnoni was excessively forceful in effecting the arrest, that Brugnoni’s actions constituted assault and battery, that Brugnoni’s actions constituted a violation of the rights protected by 42 U.S.C. § 1983, and that the Port Authority of New York and New Jersey was vicariously liable for Brugnoni’s actions.

Cancel claimed that one of his fingers was intentionally pulled and/or twisted by Brugnoni during Brugnoni’s application of handcuffs.

Defense counsel claimed that Cancel’s testimony contradicted prior statements regarding the mechanism of injury. She noted that police officers are instructed to control a suspect during an arrest, and she argued that pulling or twisting a finger would not be an effective tactic.

injurieS/dAMAGeS aggravation of pre-existing condition; fracture, finger

While Cancel was being processed in police custody, he claimed that he was suffering asthma-related distress. He was transported to a hospital, where he claimed that his left hand’s middle finger was painful. He underwent X-rays and minor treatment.

Cancel ultimately claimed that he suffered an aggravation of a pre-existing fracture of his left hand’s middle finger. He claimed that he suffers ongoing pain and limitations.

Cancel sought recovery of damages for past pain and suffering, damages for future pain and suffering, and punitive damages.

The defense’s expert radiologist compared the results of X-rays that Cancel underwent before and after the arrest. The expert opined that the X-rays did not depict a significant change of the condition of Cancel’s injured finger. Defense counsel also contended that Cancel’s fracture healed well.

reSuLt The jury rendered a defense verdict. It found that Brugnoni was not excessively forceful in effecting Cancel’s arrest.

deMAnd $150,000offer None

triAL detAiLS Trial Length: 5 days Trial Deliberations: 1 hour Jury Vote: 5-1 Jury Composition: 2 male, 4 female;

2 black, 1 Hispanic, 3 white

PLAintiffexPert(S) Gabriel L. Dassa, D.O., orthopedic surgery,

Bronx, NY

defenSeexPert(S) Craig Sherman, M.D., radiology,

New York, NY

editor’S note This report is based on information that was provided by plaintiff’s and defense counsel.

–Melissa Siegel

QueenS count y

Motor VehicLeQuestion of Lights — Broadside — Intersection — Multiple Vehicle

Auto accident led to spinal fusion, plaintiff claimedVerdict $1,110,000

cASe Armando Tejeda v. Sandy Potts Striffler as Executor of the Estate of Bruce H. Silverman a/k/a Bruce Howard Silverman a/k/a Bruce Silverman, No. 5088/15

court Queens SupremejudGe Pam Jackman BrowndAte 11/17/2017



new york city

PLAintiffAttorney(S) Alex Nocerino, Chopra & Nocerino, LLP,

Mineola, NY

defenSeAttorney(S) David C. Smith, Martyn, Toher, Martyn

& Rossi, Mineola, NY (Estate of Bruce H. Silverman [damages])

Peter S. Thomas, Peter S. Thomas, P.C., Forest Hills, NY, of counsel, Martyn, Toher, Martyn & Rossi, Mineola, NY (Estate of Bruce H. Silverman [liability])

fActS & ALLeGAtionS On Sept. 22, 2014, plaintiff Armando Tejeda, 33, a self-employed programmer, was driving on Northern Boulevard, near its intersection at Junction Boulevard, in Queens. While he was proceeding through the intersection, the rear portion of his vehicle’s right side was struck by a vehicle that was being driven by Bruce Silverman, who was traveling on Junction Boulevard. Tejeda claimed that he suffered injuries of his back and neck.

Tejeda sued Silverman. Tejeda alleged that Silverman was negligent in the operation of his vehicle.

Silverman died after the lawsuit had been filed. The lawsuit continued against his estate.

Tejeda claimed that the collision occurred while he was executing a left turn onto Junction Boulevard, from Northern Boulevard. He claimed that he entered the intersection upon observing a green “arrow” signal for motorists who were executing left turns. He contended that, as such, Silverman would have faced a red signal.

During a deposition, Silverman claimed that a green traffic signal permitted his entrance to the intersection. He contended that Tejeda ignored a red signal. Silverman also claimed that Tejeda was proceeding straight through the intersection, rather than turning. However, in a document, submitted by Silverman to the New York State Department of Motor Vehicles, Silverman indicated that Tejeda was turning left. Tejeda’s counsel argued that the contradictory statements diminished Silverman’s credibility.

injurieS/dAMAGeS bulging disc, cervical; chiropractic; discectomy; fusion, cervical; hardware implanted; herniated disc at C6-7; herniated disc at L4-5; herniated disc at L5-S1; nerve impingement; physical therapy; radiculopathy

Tejeda was placed in an ambulance, and he was transported to Elmhurst Hospital Center, in Queens. He underwent minor treatment.

Tejeda ultimately claimed that he suffered herniations of his C6-7, L4-5 and L5-S1 intervertebral discs. He claimed that his C6-7 disc caused impingement of a spinal nerve and resultant radiculopathy. He also claimed that he suffered trauma that produced bulges of his C2-3, C3-4, C4-5 and C5-6 discs.

Tejeda underwent physical therapy, more than 100 sessions of chiropractic manipulation and three spinal manipulations

that required administration of anesthesia. On May 25, 2016, he underwent surgery that included a discectomy—which involved excision of his C6-7 disc—fusion of the corresponding level of his spine and the implantation of a stabilizing cage.

Tejeda claimed that his back and neck remain painful, that his pain limits his tolerance of prolonged periods in which he is seated, and that his residual effects hinder his performance of his job’s duties. He further claimed that he previously enjoyed recreational activities, such as playing baseball, running, surfing and other water sports, but that his residual effects prevent his resumption of those activities. Tejeda also claimed that he may require additional conservative treatment and/or further fusion of his spine’s cervical region.

Tejeda sought recovery of past medical expenses, future medical expenses, damages for past pain and suffering, and damages for future pain and suffering.

Defense counsel contended that Tejeda did not suffer a serious injury, as defined by the no-fault law, Insurance Law § 5102(d).

Defense counsel’s expert witnesses, a radiologist and an orthopedist, were largely precluded. The radiologist was not permitted to provide any testimony, and the orthopedist was not permitted to address anything other than a report he had submitted prior to Tejeda’s surgery. Instead, defense counsel presented Tejeda’s treating radiologist. The radiologist opined that Tejeda’s injuries were degenerative conditions that predated the accident.

After defense counsel had presented his case, Justice Pam Jackman Brown ruled that Tejeda suffered a serious injury.

The parties negotiated a high/low stipulation: Damages could not exceed $1.25 million, but they had to equal or exceed $600,000.

reSuLt The jury found that Silverman was liable for the acci-dent. It determined that Tejeda’s damages totaled $1.11 million.

ArMAndotejedA $110,000 past medical cost $125,000 future medical cost $525,000 past pain and suffering $350,000 future pain and suffering $1,110,000

inSurer(S) Liberty Mutual Insurance Co.

triAL detAiLS Trial Length: 3 weeks Trial Deliberations: 8.5 hours Jury Vote: 5-1 (liability); 6-0 (damages) Jury Composition: 2 male, 4 female;

1 Asian, 2 black, 1 Greek, 2 Hispanic

PLAintiffexPert(S) Barry Heffron, chiropractic,

Rockville Centre, NY (treating doctor) Aron D. Rovner, M.D., orthopedic surgery,

Cedarhurst, NY



new york city / greater metro area

defenSeexPert(S) Marc J. Katzman, M.D., radiology,

Lindenhurst, NY (did not testify [precluded]) Anthony J. Spataro, M.D., orthopedic

surgery, Hauppauge, NY (did not testify) Steven W. Winter, M.D., radiology,

Melville, NY (treating doctor)

editor’S note This report is based on information that was provided by plaintiff’s and defense counsel.

–Melissa Siegel

GreAter Metro AreAnASSAu count y

intentionAL tortSAssault and Battery

Plaintiff claimed sucker punch caused concussion, memory lossdeciSion $111,207

cASe Demetris Andreou v. Gregory Donnelly, No. 5712/16

court Nassau SupremejudGe John M. GalassodAte 11/13/2017

PLAintiffAttorney(S) Alan Kachalsky, Alan Kachalsky, Esq.,

Rye Brook, NY

defenSeAttorney(S) None reported

fActS & ALLeGAtionS On Sept. 28, 2015, plaintiff Demetris Andreou, 24, was involved in a physical altercation. The incident occurred in a parking lot that was located at 3041 Hempstead Turnpike, in Levittown. Andreou claimed that he was punched by another man, Gregory Donnelly. Andreou suffered injuries of his ears, his face and his head.

Andreou sued Donnelly. Andreou alleged that Donnelly’s actions constituted assault and battery.

Andreou claimed that he was attacked without provocation or warning, from behind, a moment after he had exited a motor vehicle.

Donnelly defaulted. The matter proceeded to an inquest. Donnelly was not represented by counsel.

injurieS/dAMAGeS brain damage; cognition, impairment; concussion; ear; facial laceration; head; headaches; laceration; memory, impairment; unconsciousness

Andreou fell onto the parking lot’s surface, and his head struck the ground. He suffered a concussion, and he experienced a resultant loss of consciousness. He also suffered lacerations of his ears and an eyebrow.

Andreou was placed in an ambulance, and he was transported to Nassau University Medical Center, in the hamlet of East Meadow. He underwent stitching of his lacerations.

Andreou claimed that his concussion caused mild damage of his brain. He claimed that he suffers residual impairment of the memory component of his cognition. He also claimed that he experiences residual migraines; typically once a month.

Andreou sought recovery of $11,206.95 for past medical expenses, unspecified damages for past pain and suffering, and unspecified damages for future pain and suffering.

reSuLt Justice John Galasso determined that Andreou’s damages totaled $111,206.95.

deMetriSAndreou $11,207 past medical cost $100,000 past and future pain and suffering $111,207

editor’S note This report is based on information that was provided by plaintiff’s counsel. The defendant, who was not represented by counsel, was not asked to contribute.

–Melissa Siegel

SuffoLk count y

MedicAL MALPrActiceSurgical Error — Failure to Detect — Childbirth — OB-GYN

Defense: Doctors couldn’t have prevented postpartum hemorrhageVerdict defense

cASe Heather N. Kaplan & Joshua D. Kaplan v. Stony Brook Gynecology & Obstetrics, P.C., Robert O’Keefe, M.D., Jeffrey Porte, M.D., Megan Lochner, M.D., Elizabeth Garduno, M.D. and Michael Demishev, M.D., No. 66473/14

court Suffolk SupremejudGe Jerry GarguilodAte 11/21/2017

PLAintiffAttorney(S) Steven Miller, Miller, Montiel & Strano, P.C.,

Garden City, NY

defenSeAttorney(S) Shawn P. Kelly, Kelly, Rode & Kelly, LLP,

Mineola, NY



greater metro area / upstate

fActS & ALLeGAtionS On Oct. 23, 2013, plaintiff Heather Kaplan, 37, an attorney, underwent Caesarean delivery of a child. The delivery was performed by obstetrician Dr. Robert O’Keefe and obstetrician Dr. Jeffrey Porte.

After the delivery had been completed, a hemorrhage developed in Kaplan’s uterus. The uterus became atonic: It would not contract. Kaplan’s bleeding necessitated performance of a hysterectomy, but the procedure did not halt the bleeding. O’Keefe and Porte performed an exploratory laparotomy. They were assisted by three obstetricians: Dr. Michael Demishev, Dr. Elizabeth Garduno and Dr. Megan Lochner. The laparotomy resolved Kaplan’s bleeding, but it created a large scar.

Kaplan claimed that her hemorrhage was a result of improper performance of the Caesarean delivery.

Kaplan sued O’Keefe, Porte, Demishev, Garduno, Lochner and the doctors’ practice, Stony Brook Gynecology & Obstetrics, P.C. Kaplan alleged that O’Keefe and Porte failed to properly perform the Caesarean delivery, that each doctor failed to properly perform the laparotomy, that the doctors’ failures constituted malpractice, and that Stony Brook Gynecology & Obstetrics was vicariously liable for the doctors’ actions.

Kaplan’s counsel discontinued the claims against Demishev, Garduno and Lochner. The trial addressed O’Keefe, Porte, and Stony Brook Gynecology & Obstetrics.

Kaplan’s expert obstetrician opined that Kaplan’s hemorrhage was caused by a small remnant of Kaplan’s placenta. He contended that the remnant’s presence was a result of inadequate evacuation of the uterus. The expert opined that the remnant’s presence was signaled by the atony of Kaplan’s uterus, and he contended that the atony should have prompted immediate exploration of the uterus. The doctors’ notes did not document exploration of the uterus.

The defense’s expert obstetrician contended that atony would not be a result of a small remnant of placenta. He contended that Kaplan’s uterus was properly evacuated, that her hemorrhage was an unforeseeable complication, and that O’Keefe and Porte properly addressed the hemorrhage.

injurieS/dAMAGeS abdomen; atony; hemorrhage; hysterectomy; laparotomy; scar and/or disfigurement; sterility

Kaplan underwent a hysterectomy. She also suffered uncontrollable bleeding that necessitated performance of a laparotomy that created a large scar of her abdomen.

Kaplan claimed that she and her husband had hoped to have additional children, but that her hysterectomy ended expansion of their natural family.

Ms. Kaplan sought recovery of damages for past and future pain and suffering. Her husband presented a derivative claim.

reSuLt The jury rendered a defense verdict.

deMAnd $1,200,000 (total, by both plaintiffs)offer None

inSurer(S) Academic Health Professionals Insurance Association for all defendants

triAL detAiLS Trial Length: 12 days Trial Deliberations: 3.5 hours Jury Vote: 6-0 Jury Composition: 2 male, 4 female

PLAintiffexPert(S) Gary R. Brickner, M.D., obstetrics,

Hamilton, NJ

defenSeexPert(S) Henry K. Prince, M.D., obstetrics,

Woodbury, NY

PoSt-triAL Judge Jerry Garguilo denied plaintiffs’ counsel’s motion to set aside the verdict.

editor’S note This report is based on information that was provided by defense counsel. Plaintiffs’ counsel did not respond to the reporter’s phone calls.

–Alan Burdziak

uPStAtedutcheSS count y

Motor VehicLeNo-Fault Case — Rear-ender — Multiple Vehicle — Passenger

Couple not hurt in motor-vehicle accident, defense contendedVerdict defense

cASe Patrick Villaruel Marlene Villaruel v. Nancy Mueller William Mueller, No. 51270/16

court Dutchess SupremejudGe Christine A. SproatdAte 11/15/2017

PLAintiffAttorney(S) Joan Marshall Cresap, Krentsel & Guzman

LLP, New York, NY

defenSeAttorney(S) Lester C. Rodriques, Picciano & Scahill, P.C.,

Bethpage, NY

fActS & ALLeGAtionS On Nov. 1, 2015, plaintiff Patrick Villarruel, a part-time construction worker in his 60s, was driving on the southbound side of Route 9, near its intersection at Harriman Road, in Irvington. Villarruel’s



upstate

wife, plaintiff Marlene Villarruel, a retiree in her 60s, was a passenger. When Mr. Villarruel reached the intersection, he stopped at a red traffic signal. Before he could resume travel, his car’s rear end was struck by a trailing sport utility vehicle that was being driven by Nancy Mueller. Ms. Villarruel claimed that she suffered injuries of her neck. Mr. Villarruel claimed that he suffered injuries of his neck and a shoulder.

The Villarruels sued Mueller and her vehicle’s owner, William Mueller. The Villarruels alleged that Nancy Mueller was negligent in the operation of her vehicle. The Villarruels further alleged that William Mueller was vicariously liable for Nancy Mueller’s actions.

Plaintiffs’ counsel moved for summary judgment of liability, and the motion was granted. The trial addressed damages.

injurieS/dAMAGeS bulging disc, cervical; chiropractic; decreased range of motion; herniated disc at C3-4; herniated disc at C5-6; insomnia; physical therapy; rotator cuff, injury (tear); supraspinatus muscle/tendon, tear

During the day that followed the accident, Ms. Villarruel presented to her primary doctor. She underwent minor treatment.

Villarruel ultimately claimed that she suffered a herniation of her C3-4 intervertebral disc. She also claimed that she suffered trauma that produced bulges of her C4-5, C5-6 and C6-7 discs.

Villarruel quickly commenced a course of conservative treatment, which comprised chiropractic manipulation and physical therapy. The treatment lasted about six months, though it was rendered intermittently.

Villarruel claimed that she suffers residual pain—particularly when turning her head—that she suffers a residual diminution of her neck’s range of motion, that her pain hinders her ability to sleep, and that her residual effects limit her physical activity. She also claimed that she had intended to resume work, but that her residual effects have eliminated her ability to work.

Villarruel sought recovery of damages for past and future pain and suffering.

During the day that followed the accident, Mr. Villarruel presented to his primary doctor. He underwent minor treatment.

Villarruel ultimately claimed that he suffered a tear of his right, dominant shoulder’s supraspinatus tendon—which is a component of the rotator cuff—a herniation of his C5-6 disc, and trauma that produced bulges of his C3-4, C4-5 and C6-7 discs.

Villarruel quickly commenced a course of conservative treatment, which comprised chiropractic manipulation and physical therapy. The treatment lasted about six months, though it was rendered intermittently. A doctor recommended surgical repair of Villarruel’s right shoulder, but Villarruel has not undergone the procedure.

Villarruel claimed that he suffers residual pain, that he suffers a residual diminution of his range of motion, that his pain hinders his ability to sleep, and that his residual effects

limit his physical activity. He also claimed that his residual effects led to his abandonment of his part-time job.

Villarruel sought recovery of damages for past and future pain and suffering.

Defense counsel contended that neither plaintiff suffered a serious injury, as defined by the no-fault law, Insurance Law § 5102(d). He contended that the accident involved a merely minor collision that could not have caused the injuries that the Villarruels claimed to have suffered.

The defense’s expert orthopedist and expert radiologist opined that the Villarruels’ bulging and herniated discs are degenerative conditions that predate the accident. The expert radiologist also opined that Mr. Villarruel’s torn supraspinatus tendon exhibited retraction that suggested that the tendon’s tear was a long-standing condition that predated the accident.

reSuLt The jury rendered a defense verdict. It found that neither plaintiff suffered a serious injury. It determined that neither suffers permanent consequential limitation of use of a body organ or member, and it determined that neither suffered significant limitation of use of a body function or system.

inSurer(S) State Farm Insurance Cos. for both defendants

PLAintiffexPert(S) Dov J. Berkowitz, M.D., orthopedic surgery,

Kew Gardens, NY (treating doctor)

defenSeexPert(S) Arthur A. Fruauff, M.D., radiology,

New York, NY Adam D. Soyer, M.D., orthopedic surgery,

Fishkill, NY

editor’S note This report is based on information that was provided by plaintiffs’ and defense counsel.

–Alan Burdziak

erie count y

Motor VehicLeLeft Turn — Broadside — Motorcycle

Motorcyclist tore and dislocated shoulder in accidentVerdict $618,923

cASe James Piedmont v. Raymond P. Mangold Sarah A. Mangold, No. 805512/15

court Erie SupremejudGe Emilio ColaiacovodAte 6/13/2017



upstate

PLAintiffAttorney(S) Stephen C. Ciocca, Cellino & Barnes,

Buffalo, NY

defenSeAttorney(S) Robert E. Gallagher Jr., Roe & Associates,

Williamsville, NY

fActS & ALLeGAtionS On July 19, 2013, plaintiff James Piedmont, 36, a salesman, was motorcycling on the westbound side of Main Road, near its intersection at South Newstead Road, in Akron. A moment after Piedmont had cleared the intersection, his motorcycle struck the right side of a car that was being driven by Sarah Mangold, who was executing a left turn toward a driveway, from the opposite side of Main Road. Piedmont was propelled onto the roadway, and he suffered injuries of an arm, his scrotum and a shoulder.

Piedmont sued Mangold and her vehicle’s owner, Raymond Mangold. Piedmont alleged that Sarah Mangold was negligent in the operation of her vehicle. Piedmont further alleged that Raymond Mangold was vicariously liable for Sarah Mangold’s actions.

Piedmont claimed that Sarah Mangold did not signal her turn. He also claimed that Mangold should have yielded the right of way.

Mangold claimed that Piedmont could have avoided the collision.

Plaintiff’s counsel moved for summary judgment of liability, and the motion was granted. The trial addressed damages.

injurieS/dAMAGeS abrasions; arm; arthroscopy; closed reduction; contusion; decreased range of motion; elbow; glenoid labrum, tear; groin; Hill-Sachs lesion; physical therapy; shoulder, dislocation

Piedmont suffered a dislocation of his left, dominant arm’s shoulder and a resultant Hill-Sachs lesion, which is a bone depression secondary to dislocation of a shoulder. He also suffered a tear of his left shoulder’s glenoid labrum, a contusion of his scrotum, and abrasions of his left arm and left elbow.

Piedmont was placed in an ambulance, and he was transported to Erie County Medical Center, in Buffalo. He underwent closed reduction of his left shoulder’s dislocation, and a sling was applied to his left arm. His abrasions were addressed via application of stitches.

On Nov. 18, 2013, Piedmont commenced a course of physical therapy. The treatment lasted until Feb. 24, 2014, and it was typically rendered two or three times a week.

On May 9, 2014, Piedmont underwent arthroscopic surgery that addressed his left shoulder. The surgery included a Remplissage procedure, in which a segment of the shoulder’s rotator cuff was anchored within the Hill-Sachs lesion. The procedure was intended to resolve instability of the shoulder. The surgery also included a repair of the shoulder’s glenoid labrum.

After 45 days had passed, Piedmont resumed physical therapy. The treatment lasted until Nov. 3, 2014, and it was typically rendered two or three times a week.

Piedmont claimed that his injuries prevented his performance of three weeks of work. He further claimed that the Remplissage procedure caused a residual diminution of his left shoulder’s range of motion. He claimed that the limitation prevents his performance of a full throwing motion, and he further claimed that his left arm cannot be extended behind his neck. He also claimed that his left shoulder remains painful and weakened.

Piedmont sought recovery of past medical expenses, past lost earnings, and damages for past and future pain and suffering. He sought a total of $1.25 million, which represented the limit of the defendants’ insurance’s coverage.

Defense counsel contended that Piedmont does not suffer a significant reduction of the left shoulder’s range of motion. He also contended that Piedmont does not suffer a significant physical limitation. He noted that Piedmont’s treatment concluded in November 2014.

reSuLt The jury determined that Piedmont’s damages totaled $618,923.

jAMeSPiedMont $5,643 past medical cost $3,280 past lost earnings $210,000 past pain and suffering $400,000 future pain and suffering (40 years) $618,923

deMAnd $290,000 (insurance coverage’s limit was $1,250,000)

offer $85,000

inSurer(S) Adirondack Insurance Exchange for both defendants

triAL detAiLS Trial Length: 2 days Jury Vote: 6-0 Jury Composition: 5 male, 1 female

PLAintiffexPert(S) Marc S. Fineberg, M.D., orthopedic surgery,

Amherst, NY (treating doctor; testified via videotape)

Thomas Winiewicz, physical therapy, Depew, NY

defenSeexPert(S) Kevin Lanighan, M.D., orthopedic surgery,

East Amherst, NY (testified via videotape)

PoSt-triAL Justice Emilio Colaiacovo denied defense coun-sel’s motion to set aside the verdict.

editor’S note This report is based on information that was provided by plaintiff’s counsel. Additional information was gleaned from court documents. Defense counsel did not respond to the reporter’s phone calls.

–Jason Eisenberg



upstate

Monroe count y

Motor VehicLeLeft Turn — Broadside — Multiple Vehicle

Woman fractured finger in automobile collisionVerdict $45,000

cASe Gail Martin v. Scott C Lawler; Colin A Lawler, No. 286/14

court Monroe SupremejudGe Renee Forgensi MinarikdAte 4/25/2017

PLAintiffAttorney(S) Rich Hall, William Mattar, P.C.,

Williamsville, NY Anthony J. Tantillo, William Mattar, P.C.,

Williamsville, NY

defenSeAttorney(S) Jeffrey C. Sendziak, Law Office of Daniel R.

Archilla, Buffalo, NY Lauren M. Yannuzzi, Law Office of Daniel

R. Archilla, Buffalo, NY

fActS & ALLeGAtionS At about 12:10 p.m. on Aug. 15, 2012, plaintiff Gail Martin, 73, a retiree, was driving on the eastbound side of Scottsville Mumford Road, near its intersection at Union Street, in Scottsville. Her car struck the right side of a pickup truck that was being driven by Colin Lawler, who was executing a left turn toward a parking lot, from the opposite side of Scottsville Mumford Road. Martin claimed that she suffered injuries of her back, a finger and her neck.

Martin sued Lawler and his vehicle’s owner, Scott Lawler. Martin alleged that Colin Lawler was negligent in the operation of his vehicle. Martin further alleged that Scott Lawler was vicariously liable for Colin Lawler’s actions.

Martin contended that Colin Lawler should have yielded the right of way.

Lawler initially claimed that the sun’s glare obscured his view of Martin’s vehicle, but defense counsel ultimately conceded liability. The trial addressed damages.

injurieS/dAMAGeS aggravation of pre-existing condition; back; chiropractic; fracture, finger; fracture, phalanx; neck; neurological impairment

Martin was placed in an ambulance, and she was transported to Strong Memorial Hospital, in Rochester. A test revealed that she suffered a fracture of her left, nondominant hand’s ring finger. The fracture involved the distal phalanx, which is the bone nearest the finger’s tip. A

splint was applied to the finger. The splint was removed after some four weeks had passed.

Martin claimed that the accident also aggravated pre-existing injuries of her back and neck. The injuries were being addressed via chiropractic manipulation and neurological evaluations. The treatment continued after the accident.

Martin claimed that her left hand’s ring finger remains painful. She claimed that her pain limits her performance of certain physical activities, such as gardening.

Martin sought recovery of damages for past and future pain and suffering.

Defense counsel contended that Martin suffered merely minor injuries that quickly resolved.

reSuLt The jury determined that Martin’s damages totaled $45,000.

GAiL MArtin $25,000 past pain and suffering $20,000 future pain and suffering $45,000

inSurer(S) Government Employees Insurance Co. for both defendants

triAL detAiLS Trial Length: 3 days Trial Deliberations: 80 minutes Jury Vote: 6-0 Jury Composition: 2 male, 4 female

PLAintiffexPert(S) Warren Hammert, orthopedic surgery,

Rochester, NY (treating doctor) Andrew Hilburger, neurology, Batavia, NY

(treating doctor)

defenSeexPert(S) None reported

PoSt-triAL Judge Renee Forgensi Minarik denied each side’s motion for recovery of costs.

editor’S note This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents.

–Melissa Siegel

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Index

AttorneysAcosta-Pettyjohn, Jessica . . . . . . . . . . . . . 6Badolato, Louis A . . . . . . . . . . . . . . . . . . . 14Bailey, Shanna . . . . . . . . . . . . . . . . . . . . . . 8Cash, Joshua . . . . . . . . . . . . . . . . . . . . . . . 14Ciocca, Stephen C . . . . . . . . . . . . . . . . . . . 20Cresap, Joan Marshall . . . . . . . . . . . . . . . 18Dell, Gregory J . . . . . . . . . . . . . . . . . . . . . . 14Denalli, Karla . . . . . . . . . . . . . . . . . . . . . . 15Estevez-Sarkinen, Ivonne . . . . . . . . . . . . 12Friedman, Theodore H . . . . . . . . . . . . . . . . 6Gallagher, Robert E . Jr . . . . . . . . . . . . . . . 20Gjelaj, Nick . . . . . . . . . . . . . . . . . . . . . . . . . 5Glassman, Adam D . . . . . . . . . . . . . . . . . . 12Goode, Y . Gail . . . . . . . . . . . . . . . . . . . . . . . 6Hall, Rich . . . . . . . . . . . . . . . . . . . . . . . . . . 21Heckler, Adam J . . . . . . . . . . . . . . . . . . . . . 14Kachalsky, Alan . . . . . . . . . . . . . . . . . . . . 17Kaminsky, Alan . . . . . . . . . . . . . . . . . . . . . . 5Kelly, Shawn P . . . . . . . . . . . . . . . . . . . . . . 17Lillis, Kevin G . . . . . . . . . . . . . . . . . . . . . . . . 5Lum, Larry H . . . . . . . . . . . . . . . . . . . . . . . 14Mahon, Michael J . . . . . . . . . . . . . . . . . . . . 9Miller, Steven . . . . . . . . . . . . . . . . . . . . . . 17Mutarelli, Michael . . . . . . . . . . . . . . . . . . 10Nocerino, Alex . . . . . . . . . . . . . . . . . . . . . . 16Penson, Dominique A . . . . . . . . . . . . . . . . . 6Radchenko, Halina . . . . . . . . . . . . . . . . . . 10Ricigliano, William . . . . . . . . . . . . . . . . . . . 8Rodriques, Lester C . . . . . . . . . . . . . . . . . . 18Ross, Mathew P . . . . . . . . . . . . . . . . . . . . . . 8Sendziak, Jeffrey C . . . . . . . . . . . . . . . . . . 21Smith, David C . . . . . . . . . . . . . . . . . . . . . . 16Tantillo, Anthony J . . . . . . . . . . . . . . . . . . 21Thomas, Peter S . . . . . . . . . . . . . . . . . . . . . 16Vargas, Chris . . . . . . . . . . . . . . . . . . . . . . . . 9Weissman, David . . . . . . . . . . . . . . . . . . . 11Yannuzzi, Lauren M . . . . . . . . . . . . . . . . . 21Zamyatin, Irina . . . . . . . . . . . . . . . . . . . . . 11Zeichner, Jeffrey . . . . . . . . . . . . . . . . . . . . 15

CasesAndreou v . Donnelly . . . . . . . . . . . . . . . . 17Bakayev v . Berger . . . . . . . . . . . . . . . . . . . 11Cancel v . Port Authority of

New York and New Jersey . . . . . . . . 15Ellis v . Ponder . . . . . . . . . . . . . . . . . . . . . . 10Kaplan v . Stony Brook Gynecology &

Obstetrics, P .C . . . . . . . . . . . . . . . . . . . 17Martin v . Lawler . . . . . . . . . . . . . . . . . . . . 21Medi-Tech International Corp . v . 19-20

Industry City Associates, LLC . . . . . . 14

Parhami v . Marcus . . . . . . . . . . . . . . . . . . 12

Pesjaka v . City of New York . . . . . . . . . . . . 8

Piedmont v . Mangold . . . . . . . . . . . . . . . 19

Ragubir v . Gibraltar Management Co ., Inc . . . . . . . . . . . . . 5

Sebhat v . MTA New York City Transit . . . . 6

Tejeda v . Estate of Silverman . . . . . . . . . 15

Villaruel v . Mueller . . . . . . . . . . . . . . . . . . 18

Zhicay v . 236 Buffalo Realty LLC . . . . . . . . 9

CourtsBronx County . . . . . . . . . . . . . . . . . . . . . . . 5

Dutchess County . . . . . . . . . . . . . . . . . . . . 18

Erie County . . . . . . . . . . . . . . . . . . . . . . . . 19

Kings County . . . . . . . . . . . . . . . . . . . . . . . . 9

Monroe County . . . . . . . . . . . . . . . . . . . . . 21

Nassau County . . . . . . . . . . . . . . . . . . . . . 17

New York County . . . . . . . . . . . . . . . . . . . 15

Queens County . . . . . . . . . . . . . . . . . . . . . 15

Suffolk County . . . . . . . . . . . . . . . . . . . . . 17

Experts

ACCIDENT RECONSTRUCTION

Cipriani, Alfred P .E . . . . . . . . . . . . . . . . . . . . 7

CHEMISTRY

Zeliger, Harold I . Ph .D . . . . . . . . . . . . . . . . . 9

CHIROPRACTIC

Heffron, Barry . . . . . . . . . . . . . . . . . . . . . . 16

ECONOMICS

Goldman, Fred Ph .D . . . . . . . . . . . . . . . . . 10

Leiken, Alan M . Ph .D . . . . . . . . . . . . . . . . . . 6

Missun, Ronald E . Ph .D . . . . . . . . . . . . . . . . 9

EMPLOYEE SAFETY

DeBobes, Leo J . C .S .P . . . . . . . . . . . . . . . . . . 9

ENGINEERING

Trieste, Richard J . P .E . . . . . . . . . . . . . . . . . 14

HYDROGEOLOGY

Sullivan, Dan . . . . . . . . . . . . . . . . . . . . . . . 14

INTERNAL MEDICINE

Salehin, Sayeedus S . M .D . . . . . . . . . . . . . 12

LAND SURVEYING

Ferrantello, Frank S . . . . . . . . . . . . . . . . . . 14

LIFE-CARE PLANNING

Bialsky, Harold D .C . . . . . . . . . . . . . . . . . . . 9

NEUROLOGY

Hilburger, Andrew . . . . . . . . . . . . . . . . . . 21Stiler, Igor M .D . . . . . . . . . . . . . . . . . . . . . . 11

OBSTETRICS

Brickner, Gary R . M .D . . . . . . . . . . . . . . . . 18Prince, Henry K . M .D . . . . . . . . . . . . . . . . . 18

ORTHOPEDIC SURGERY

Berkowitz, Dov J . M .D . . . . . . . . . . . . . . . . 19Brisson, Paul M . M .D . . . . . . . . . . . . . . . . . 10Dassa, Gabriel L . D .O . . . . . . . . . . . . . . . . . 15Fineberg, Marc S . M .D . . . . . . . . . . . . . . . . 20Hammert, Warren . . . . . . . . . . . . . . . . . . 21Hossack, Michael D . M .D . . . . . . . . . . . . . . 7Kaplan, Jeffrey M .D . . . . . . . . . . . . . . . . . . 10Lanighan, Kevin M .D . . . . . . . . . . . . . . . . 20McMahon, Mark S . M .D . . . . . . . . . . . . . . 12Merola, Andrew A . M .D . . . . . . . . . . . . . . . 6Passick, Jeffrey M .D . . . . . . . . . . . . . . . . . . 11Rovner, Aron D . M .D . . . . . . . . . . . . . . . . . 16Rubinshteyn, Igor M .D . . . . . . . . . . . . . . . 13Sherry, Herbert S . M .D . . . . . . . . . . . . . . . . 6Shur, Vladimir B . M .D . . . . . . . . . . . . . . . . 12Soyer, Adam D . M .D . . . . . . . . . . . . . . . . . 19Spataro, Anthony J . M .D . . . . . . . . . . . . . . 17Toriello, Edward A . M .D . . . . . . . . . . . . .7,12Touliopoulos, Steven J . M .D . . . . . . . . . . . . 6Winiarsky, Raz M .D . . . . . . . . . . . . . . . . . . 13

PAIN MANAGEMENT

Pappagallo, Marco M .D . . . . . . . . . . . . . . . 9Thomas, Gary M .D . . . . . . . . . . . . . . . . . . . 10

PHYSICAL MEDICINE

Root, Barry C . M .D . . . . . . . . . . . . . . . . . . . . 6

PHYSICAL THERAPY

Winiewicz, Thomas . . . . . . . . . . . . . . . . . 20

PLASTIC SURGERY/ RECONSTRUCTIVE SURGERY

Singer, Elan B . M .D . . . . . . . . . . . . . . . . . . . 9

RADIOLOGY

Fruauff, Arthur A . M .D . . . . . . . . . . . . . . . 19Katzman, Marc J . M .D . . . . . . . . . . . . . . . . 17Kolb, Thomas M . M .D . . . . . . . . . . . . . . . . 10Sherman, Craig M .D . . . . . . . . . . . . . . . . . 15Winter, Steven W . M .D . . . . . . . . . . . . . . . 17

SPRINKLER SYSTEMS

Naylis, Jerry . . . . . . . . . . . . . . . . . . . . . . . 14

TRANSPORTATION

Berkowitz, Carl Ph .D . . . . . . . . . . . . . . . . . . 7

January 1, 2018www.verdictsearch.com24


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Index

reporting procedure: The case reports in this publication are based on leads gathered from various sources, including submissions from attorneys, court dockets and articles appearing in ALM publications or on news wires.

We begin the reporting process by speaking to an attorney involved in the case and preparing a draft report. We then attempt to contact counsel for all parties via fax and phone. If an attorney does not respond by press time, we note this in the published text. Otherwise, we incorporate all comments we receive, subject to editing for style, clarity, grammar, brevity and sense.

In addition to the amount awarded by the jury or judge, reports include, where applicable, the plaintiff’s “net” recovery, arrived at after factoring in: plaintiff’s comparative liability as well as the liability assigned to previously settling defendants; high-low agreements; amounts paid by settling defendants or set-offs of said amounts; stipulated damages not submitted to the jury; punitive damages, interest, and attorney fees and costs if awarded by judge following verdict (otherwise in gross award); post-trial remittitur or additur and the impact of trebling and statutory caps.

VOCATIONAL REHABILITATION

Kincaid, Charles A . Ph .D . . . . . . . . . . . . . . . 6Ramnauth, Mark M .A ., C .R .C . . . . . . . . . . . 9Capotosto, Peter D . M .S ., C .R .C . . . . . . . . . 6

Injuriesabdomen . . . . . . . . . . . . . . . . . . . . . . . . . . 18abrasions . . . . . . . . . . . . . . . . . . . . . . . . . . 20acromioplasty . . . . . . . . . . . . . . . . . . . . . . . 9acupuncture . . . . . . . . . . . . . . . . . . 10,12,13aggravation of pre-existing

condition . . . . . . . . . . . . . . . . . . . .15,21arm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8,20arthroscopy . . . . . . . . . . . . . . . . . 9,12,13,20atony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21brain damage . . . . . . . . . . . . . . . . . . . . . . 17bulging disc, cervical . . . . . . . . 10,12,16,19bulging disc, lumbar . . . . . . . . . . . . . . . . 10burns, chemical . . . . . . . . . . . . . . . . . . . . . 8burns, second degree . . . . . . . . . . . . . . . . 8burns, third degree . . . . . . . . . . . . . . . . . . 8capsulorrhaphy . . . . . . . . . . . . . . . . . . . . . 5chiropractic . . . . . . . . . . .10,12,13,16,19,21closed reduction . . . . . . . . . . . . . . . . . . . . 20cognition, impairment . . . . . . . . . . . . . . 17comminuted fracture . . . . . . . . . . . . . . . . 7complex regional pain syndrome . . . . . . 8concussion . . . . . . . . . . . . . . . . . . . . . . . . 17contusion . . . . . . . . . . . . . . . . . . . . . . . .5,20crepitation . . . . . . . . . . . . . . . . . . . . . . . . . . 9debridement . . . . . . . . . . . . . . . . . . 5,8,9,12decreased range of

motion . . . . . . . . . . . 5,7,9,10,13,19,20discectomy . . . . . . . . . . . . . . . . . . . . . . .9,16ear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17effusion . . . . . . . . . . . . . . . . . . . . . . . . . . . 10elbow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20epidural injections . . . . . . . . . . . . . . . . . . . 9face . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8facial laceration . . . . . . . . . . . . . . . . . . . . 17fracture, femur . . . . . . . . . . . . . . . . . . . . . . 7fracture, finger . . . . . . . . . . . . . . . . . . .15,21

fracture, hip . . . . . . . . . . . . . . . . . . . . . . . . 7fracture, pelvis . . . . . . . . . . . . . . . . . . . . . . 5fracture, phalanx . . . . . . . . . . . . . . . . . . . 21fracture, pubic ramus . . . . . . . . . . . . . . . . 5fusion, cervical . . . . . . . . . . . . . . . . . . . .9,16glenoid labrum, tear . . . . . . . . . 9,10,12,20groin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20hardware implanted . . . . . . . . . . . . . . .9,16head . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17headaches . . . . . . . . . . . . . . . . . . . . . . . .9,17hematoma . . . . . . . . . . . . . . . . . . . . . . . . . 5hemorrhage . . . . . . . . . . . . . . . . . . . . . . . 18herniated disc at C3-4 . . . . . . . . . . . 9,10,19herniated disc at C4-5 . . . . . . . . . . . . . . . 10herniated disc at C5-6 . . . . . . . . . . . . . .9,19herniated disc at C6-7 . . . . . . . . . . . . . .9,16herniated disc at L4-5 . . . . . . . . . . . . . .5,16herniated disc at L5-S1 . . . . . . . . 5,9,10,16herniated disc at T6-7 . . . . . . . . . . . . . . . . 9herniated disc at T9-10 . . . . . . . . . . . . . . . 9herniated disc at T10-11 . . . . . . . . . . . . . . 9herniated disc at T12-L1 . . . . . . . . . . . . . 12Hill-Sachs lesion . . . . . . . . . . . . . . . . . . . . 20hysterectomy . . . . . . . . . . . . . . . . . . . . . . 18insomnia . . . . . . . . . . . . . . . . . . . . . . . . . . 19internal fixation . . . . . . . . . . . . . . . . . . . . . 7knee surgery . . . . . . . . . . . . . . . . . . . . . .9,12labrum, tear (hip) . . . . . . . . . . . . . . . . . . . 5laceration . . . . . . . . . . . . . . . . . . . . . . . . . 17laparotomy . . . . . . . . . . . . . . . . . . . . . . . . 18lateral meniscus, tear . . . . . . . . . . . . . . . 10leg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5medial collateral ligament, damage . . . 10medial meniscus, tear . . . . . . . . . . . 9,10,12memory, impairment . . . . . . . . . . . . . . . 17meniscectomy . . . . . . . . . . . . . . . . . . . . . . 9neck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21nerve impingement . . . . . . . . . . . . . 5,10,16neurological impairment . . . . . . . . . . . . 21open reduction . . . . . . . . . . . . . . . . . . . . . . 7physical therapy . . . 5,9,10,12,13,16,19,20radicular pain / radiculitis . . . . . . . . . . . . . 5radiculopathy . . . . . . . . . . . . . . . . . . . . . . 16

reflex sympathetic dystrophy . . . . . . . . . . 8rhizotomy . . . . . . . . . . . . . . . . . . . . . . . . . . 5rotator cuff, injury (tear) . . . . . . . . 10,13,19scar and/or disfigurement . . . . . . . . . . . 18scar and/or disfigurement, arm . . . . . . . . 8scar and/or disfigurement, face . . . . . . . . 8shoulder, dislocation . . . . . . . . . . . . . . . . 20shoulder impingement . . . . . . . . . . . . . . . 9skin graft . . . . . . . . . . . . . . . . . . . . . . . . . . . 8sterility . . . . . . . . . . . . . . . . . . . . . . . . . . . 18supraspinatus muscle/tendon, tear . . . . 19swelling . . . . . . . . . . . . . . . . . . . . . . . . . . . 10synovectomy . . . . . . . . . . . . . . . . . . . . 5,9,12synovitis . . . . . . . . . . . . . . . . . . . . . . . 5,9,12trigger point injection . . . . . . . . . . . . . . . 5,9unconsciousness . . . . . . . . . . . . . . . . . . . . 17

InsurersAcademic Health Professionals

Insurance Association . . . . . . . . . . . 18Adirondack Insurance Exchange . . . . . . 20American International Group Inc . . . . . . 6American States Insurance Co . . . . . . . . . 12Charter Oak Fire Insurance Co . Inc . . . . . . 6Erie Indemnity Co . . . . . . . . . . . . . . . . . . . . 6Government Employees

Insurance Co . . . . . . . . . . . . . . . 11,13,21Liberty Mutual Insurance Co . . . . . . . . .8,16Lloyd’s of London . . . . . . . . . . . . . . . . . . . . 8State Farm Insurance Cos . . . . . . . . . . . . . 19

Judges/NeutralsAdams, Robert . . . . . . . . . . . . . . . . . . . . . . 5Brown, Pam Jackman . . . . . . . . . . . . . . . 15Colaiacovo, Emilio . . . . . . . . . . . . . . . . . . 19Edmead, Carol Robinson . . . . . . . . . . . . . 15Edwards, Genine D . . . . . . . . . . . . . . . . . . 10Fisher, Pamela L . . . . . . . . . . . . . . . . . . . . . 9Galasso, John M . . . . . . . . . . . . . . . . . . . . . 17Garguilo, Jerry . . . . . . . . . . . . . . . . . . . . . 17Gonzalez, Lizbeth . . . . . . . . . . . . . . . . . . . . 6Graham, Bernard J . . . . . . . . . . . . . . . .11,14

Minarik, Renee Forgensi . . . . . . . . . . . . . 21

Partnow, Mark I . . . . . . . . . . . . . . . . . . . . . 12

Spinola, Joseph P . . . . . . . . . . . . . . . . . . . . . 8

Sproat, Christine A . . . . . . . . . . . . . . . . . . 18

TopicsAssault and battery . . . . . . . . . . . . . . .15,17

Broadside . . . . . . . . . . . . . . . . . 10,15,19,21

Childbirth . . . . . . . . . . . . . . . . . . . . . . . . . 17

Construction . . . . . . . . . . . . . . . . . . . . . . . . 8

Excessive force . . . . . . . . . . . . . . . . . . . . . 15

Failure to detect . . . . . . . . . . . . . . . . . . . . 17

Government . . . . . . . . . . . . . . . . . . . . . . . 15

Intentional torts . . . . . . . . . . . . . . . . . .15,17

Intersection . . . . . . . . . . . . . . . . . . . 10,12,15

Labor law . . . . . . . . . . . . . . . . . . . . . . . 5,8,9

Left turn . . . . . . . . . . . . . . . . . . . . . 12,19,21

Medical malpractice . . . . . . . . . . . . . . . . 17

Motorcycle . . . . . . . . . . . . . . . . . . . . . . . . 19

Motor vehicle . . . . . . 10,11,12,15,18,19,21

Multiple vehicle . . . . . . . . . 10,11,15,18,21

Negligent repair and/or maintenance . . . . . . . . . . . . . . . . . . . 14

No-fault case . . . . . . . . . . . . . . . . . . . .12,18

OB-GYN . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Passenger . . . . . . . . . . . . . . . . . . . . . . . . . 18

Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Premises liability . . . . . . . . . . . . . . . . . . . 14

Question of lights . . . . . . . . . . . . . . . . .12,15

Rail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Railroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Railroad accident . . . . . . . . . . . . . . . . . . . . 6

Rear-ender . . . . . . . . . . . . . . . . . . . . . . . . 18

Slips, trips & falls . . . . . . . . . . . . . . . . . . . . 9

Stop sign . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Subway accident . . . . . . . . . . . . . . . . . . . . 6

Surgical error . . . . . . . . . . . . . . . . . . . . . . 17

Transportation . . . . . . . . . . . . . . . . . . . . . . 6

Worker/workplace negligence . . . . . . . . 5,9

Workplace . . . . . . . . . . . . . . . . . . . . . . . 5,8,9

Workplace safety . . . . . . . . . . . . . . . . . 5,8,9



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SETTLEMENT $7,400,000

CASE Kenden A. Murray v. 502-12 86th Street LLC; The

TJX Companies Inc. d/b/a T.J. Maxx; Schimenti

Construction Co.; Schmenti Construction Co. Inc.;

& Pioneer General Construction Co. LLC, No.

13691/11

COURT Kings Supreme

DATE 3/13/2016

PLAINTIFF

ATTORNEY(S) Stephen J. Murphy, Block, O’Toole & Murphy,

LLP, New York, NY

David L. Scher, Block, O’Toole & Murphy, LLP,

New York, NY

DEFENSE

ATTORNEY(S) Mark J. Dolan, Napierski, VanDenburgh,

Napierski & O’Connor, L.L.P., Albany, NY

(502/12 86th Street LLC, TJX Cos.)

William C. Lamboley, Fabiani Cohen & Hall,

LLP, New York, NY (Schimenti Construction Co.

LLC)

Karen A. Ondrovic, Boeggeman, George & Corde,

P.C., White Plains, NY (Bonland Industries Inc.)

None reported (Pioneer General Construction Co.,

LLC)

FACTS & ALLEGATIONS On April 29, 2011, plaintiff Kenden

Murray, 38, a union-affiliated installer of sheet metal, worked

at a construction site that was located at 502 86th St., in the Bay

Ridge section of Brooklyn. Murray was modifying a commercial

air-conditioning unit that was located on a building’s roof. While

he was attempting to remove a panel that was affixed to the unit,

he fell off of a steel beam that was situated some three feet above

the roof’s surface. Murray landed on the roof, and he claimed that

he sustained injuries of his back, a knee, his neck and a shoulder.

Murray sued the premises’ owner, 502/12 86th Street LLC; the

premises’ tenant, TJX Cos. Inc.; the construction project’s general

contractor, Schimenti Construction Co. LLC; and another one of

the project’s contractors, Pioneer General Construction Co., LLC.

Murray alleged that the defendants violated the New York State

Labor Law.

Schimenti Construction and TJX impleaded Murray’s employer,

Bonland Industries Inc. Schimenti Construction and TJX alleged

that Bonland Industries controlled and directed Murray’s work

functions. They sought contractual indemnification.

Pioneer General Construction did not answer the summons, and

Murray’s counsel did not pursue the claim against it. The matter

proceeded against the remaining defendants.

Murray claimed that the air-conditioning unit’s panel could

not have been accessed without standing on the beam, which was

slightly less than 6 inches wide. Murray’s counsel contended that the

incident stemmed from an elevation-related hazard, as defined by

Labor Law § 240(1), and that Murray was not provided the proper,

safe equipment that is a requirement of the statute.

Murray’s counsel moved for summary judgment of liability. The

motion was unopposed and granted. The third-party claim was also

decided via summary judgment. Bonland Industries was obligated to

indemnify Schimenti Construction and TJX. The matter proceeded

to damages.

INJURIES/DAMAGES arthroscopy; decreased range of motion; disc

protrusion, cervical; epidural injections; fusion, lumbar; herniated

KINGS COUNT Y

CONSTRUCTIONLabor Law — Workplace — Workplace Safety — Slips, Trips & Falls

Worker claimed rooftop fall caused injuries of spine, knee

October 17, 2016

as published in

NEW YORK disc at L4-5; herniated disc at L5-S1; hypertrophy; knee surgery;

lateral meniscus, tear; leg; physical therapy; shoulder; tendinitis/

tendinosis Murray completed his workday without having sought medical

attention. After three days had passed, he presented to a doctor. He

claimed that his back, his left leg, his left shoulder and his neck were

painful. He was referred for further evaluation.

Murray ultimately claimed that he sustained a tear of his left knee’s

lateral meniscus, herniations of his L4-5 and L5-S1 intervertebral

discs, and trauma that produced a protrusion of his C5-6 disc. He

further claimed that his left shoulder sustained trauma that led

to hypertrophy of the shoulder’s acromioclavicular joint. He also

claimed that the shoulder developed tendinosis. He claimed that

he later developed pain that radiated to his left leg, from his back.

Murray’s treatment began with physical therapy. The treatment

was typically rendered three times a week. The treatment is ongoing,

though its frequency has decreased to weekly intervals.

On Oct. 6, 2011, Murray underwent arthroscopic surgery that

addressed his left shoulder. On March 8, 2012, he underwent

arthroscopic surgery that addressed his left knee. He subsequently

underwent administration of two epidural injections of steroid-

based painkillers. In September 2013, he underwent a pair

of surgeries that involved fusion of the anterior and posterior

regions of his spine’s L5-S1 level. On Feb. 16, 2016, he underwent

implantation of a device that provided pain-relieving stimulation of

his spine. Murray claimed that the device produced minimal relief.

Murray further claimed that he suffers residual pain, that he

suffers a residual diminution of his back’s range of motion, that

he suffers a residual diminution of his left knee’s range of motion,

that he suffers a residual diminution of his left shoulder’s range

of motion, and that he suffers a residual diminution of his neck’s

range of motion. He also claimed that his residual effects prevent

his resumption of work.

Murray sought recovery of past and future medical expenses, past

and future lost earnings, and damages for past and future pain and

suffering.

Defense counsel contended that Murray did not sustain a

significant injury, given that Murray worked during the aftermath

of the accident and that three days passed before Murray sought

medical attention. The defense’s expert orthopedist submitted a

report in which he opined that Murray exaggerated his symptoms.

The defense’s expert spinal surgeon submitted a report in which

he opined that Murray did not sustain a traumatic injury of the

cervical region, that Murray’s lumbar injuries were degenerative

conditions that predated the accident, and that Murray can resume

work. Defense counsel claimed that Murray underwent chiropractic

treatment after a 1993 motor-vehicle accident that was the subject

of a prior personal-injury lawsuit filed by Murray.

RESULT The parties negotiated a pretrial settlement. Bonland

Industries’ insurer agreed to pay $7.4 million.

INSURER(S) Selective Insurance Group Inc. for Bonland

Industries

PLAINTIFF

EXPERT(S) Kristin K. Kucsma, M.A., economics, Livingston,

NJ (did not testify)

Edwin F. Richter, M.D., physical medicine,

Stamford, CT (did not testify)

Douglas C. Schottenstein, M.D., neurology, New

York, NY (treating doctor; did not testify)

Rohit B. Verma, M.D., orthopedic surgery, Great

Neck, NY (treating doctor; did not testify)

DEFENSE

EXPERT(S) Peter D. Capotosto, M.S., C.R.C., vocational

rehabilitation, Rochester, NY (did not testify)

Richard Lechtenberg, M.D.,

neurology, Brooklyn, NY (did not

testify)

Jane D. Mattson, Ph.D., life-care planning,

Norwalk, CT (did not testify)

Jeffrey Passick, M.D., orthopedic surgery,

Brooklyn, NY (did not testify)

Sondra J. Pfeffer, M.D., radiology,

New York, NY (did not testify)

Jeffrey M. Spivak, M.D., spinal surgery, New

York, NY (did not testify)

EDITOR’S NOTE This report is based on information that was pro-

vided by plaintiff’s counsel. Pioneer General Construction’s counsel

was not asked to contribute, and the remaining defendants’ counsel

did not respond to the reporter’s phone calls.

–Jack Deming

October 17, 2016

W W W. V E R D I C T S E A R C H . C O M

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Decision $442,795

case Tucker Taylor v. Llewellyn Werner, No. SC121454

court Superior Court of Los Angeles County, Santa Monica

JuDge Nancy L. NewmanDate 10/27/2016

Plaintiffattorney(s) Dale E. Motley, Ogden & Motley,

Los Angeles, CA

Defenseattorney(s) Llewellyn Werner, pro se

facts & allegations In 2010, plaintiff Tucker Taylor began serving on the board of directors of a company with which Llewellyn Werner was involved.

Werner previously requested that Taylor serve on the board, and Taylor allegedly agreed under certain conditions. As a result, Taylor served on the board from 2010 to 2012.

In 2012, Taylor was sued based on his position as a member of the board. The suit was bought by a limited liability company that was owned by the former Chief Executive Officer of the company. The former CEO allegedly owned more than 10 percent interest in the company that involved both Taylor and Werner. When Tucker tendered the claim for defense, he learned that the company’s directors and officers liability insurance policy contained an exclusion for claims brought by 10-percent shareholders.

Although the insurer defended under a reservation of rights, Taylor was forced to defend himself and incur attorney fees. Although Taylor ultimately prevailed in the

litigation, the case went to the Court of Appeal before Taylor could stop paying attorney fees.

Taylor sued Werner, alleging breach of contract.Taylor claimed that he agreed to serve on the board of

directors on the condition that he would have no financial exposure and that the company would have adequate D&O liability insurance, which would indemnify him from losses or advancement of defense costs in the event of a legal action for alleged wrongful acts while he was acting in his capacity as a director and officer. Taylor further claimed that Werner agreed to those conditions, but failed to ensure the company had adequate insurance.

Plaintiff’s counsel argued that Werner breached an oral agreement, which provided that if Taylor served on the board, then Taylor would not have any financial exposure and that the company would have adequate D&O insurance.

Werner, who appeared pro se, denied ever making any such agreement with Taylor.

inJuries/Damages Taylor incurred attorney fees as a result of defending himself in the 2012 lawsuit against the company where he served on the board. Thus, he sought recovery of the attorney fees he incurred in defending himself.

result Judge Nancy Newman found that Werner breached the contract he had with Taylor. She also determined that Taylor’s damages totaled $442,794.70.

eDitor’s note This report is based on information that was provided by plaintiff’s counsel. Llewellyn Werner was not asked to contribute.

–Priya Idiculla

los angeles count y

corPorationsOfficers’ and Directors’ Liability — Insurance — Coverage — Contracts

Defendant broke promise to have adequate insurance: plaintiff

February 6, 2017

as published in

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