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Motion court grants summary judgment dismissing all claims against our clients in Dominic and Alexandra Lavazoli v. Pepsi-Cola Bottling Company of New York, Inc., and NYBC Realty, LLC, Supreme Court, Nassau County Index No. 8090/2016 (Hon. Karen V. Murphy, J.)

In a negligence action arising from an accident of March 18, 2016, plaintiff, an independent beverage distributor, fell off his company’s truck inside a Pepsi warehouse. The accident occurred when the plaintiff, in attempting to confirm what beverages were on the uppermost pallet in one of the truck’s cargo bays, climbed onto one of the lower pallets that was in that cargo bay. In so doing, plaintiff inserted his foot or feet in between the top and bottom slats of that pallet, where it was not designed to support any weight, so that he ended up standing on a slat that was affixed to the underside of the pallet and was not supported by anything from beneath. The slat then detached from the underside of the pallet and the plaintiff fell backwards out of the truck, landing on some empty pallets that had been left on the concrete floor by another independent distributor. Plaintiff alleged that Pepsi was negligent in, among other things, having furnished him with an allegedly “defective” pallet, and in allowing empty pallets to remain on the floor of its warehouse after they were left there by another independent distributor.

We moved for summary judgment to dismiss the complaint, upon the grounds that Pepsi was not negligent in that: i) it had no duty or authority to control the means or methods of plaintiff’s work as an independent contractor, and thus no duty or authority to prevent plaintiff from putting a pallet to an unintended use as a stepladder if he chose to do so; ii) it had no duty to furnish the plaintiff with any equipment to climb into his truck; iii) Pepsi did not violate any duty by furnishing a pallet that was safe for its intended use of holding beverage products, as the pallet supported the beverage products that were loaded onto it, and no part of it broke until the plaintiff decided to misuse it as a stepladder; and iv) Pepsi has no liability stemming from the presence of the pallets onto which plaintiff landed after he fell, as those pallets were not a proximate cause of the accident.

The court agreed, and dismissed all claims against our client, Pepsi.

New York No-Fault “PIP” arbitration,Loss Tranfer Claim of New York State Insurance Fund against Hartford Insurance Company, Arbitration Forums Case Number: I068066961400

In the aftermath of an accident between a Hartford-insured truck and a passenger car, the State Insurance Fund brought a “loss transfer” claim to recoup from the Hartford the first $50,000 that it had paid out in Workers Compensation benefits which the driver of the car had received in lieu of first-party “No-Fault” benefits. Pursuant to NYS Insurance Law § 5105, the Fund was required to prosecute its claim through mandatory arbitration.

In order to recover at the arbitration, the Fund was required to prove the extent to which the Hartford’s insured would have been held liable to the driver of the passenger car but for the provisions of the “No-Fault” statute. The Fund was also required to prove the extent to which its payments to and for the driver of the car were related to injuries and losses caused by the accident.

Our office, representing the Hartford, submitted contentions opposing the liability claim, supported by evidence demonstrating that the Hartford’s insured was not negligent in that the accident was due to unanticipated mechanical failure which occurred despite the fact that the Hartford insured’s truck was regularly maintained. We also submitted contentions and evidence contesting the damages as claimed by the Fund.

A panel of three arbitrators heard and evaluated the submissions from both sides. Accepting our arguments and evidence over those of the Fund, the arbitrators agreed that the Hartford’s insured was not negligent, and determined that the Hartford therefore had zero liability. They denied the claim of the State Insurance Fund in its entirety, awarding the Fund no damages at all.

Decision and Decree in favor of our client obtained after trial, by Christopher Di Giulio in In Re Aldo DeMartino, Deceased, Surrogate's Court, Queens County, file no. 2012-722/A (Hon. Peter J. Kelly . Surrogate)

In a proceeding which concluded a litigation having one of the most tortured procedural histories that this firm has ever encountered, Christopher Di Giulio defended the Estate of Aldo DeMartino against the claims of one Mae Ann Gilbert. The matter began when an unpaid creditor of the then-living Aldo DeMartino, who was in his nineties at the time, brought a proceeding in NYS Supreme Court to have him declared incompetent, and to have a guardian appointed to administer his affairs. It was revealed over the course of several hearings that Mr. DeMartino was in fact a wealthy man. Mae Ann Gilbert, who was Mr. DeMartino's live-in caregiver and some 30 years his junior, took Mr. DeMartino to Georgia and married him there in a civil ceremony. When Ms. Gilbert informed the court of that fact upon the "couple's" return to New York, the judge not only granted the creditor's petition to declare Mr. DeMartino incompetent and appoint a guardian, he also summarily annulled the marriage on the ground that Mr. DeMartino lacked the capacity to enter into any marriage. On Ms. Gilbert's subsequent appeal, the Appellate Division affirmed the finding of incompetency, but reversed the annulment of the marriage on the ground that because no prayer for such relief had ever been requested in the creditor's petition, Ms. Gilbert had been deprived of the opportunity to be heard on the issue of the validity of the marriage. Mr. DeMartino had died during the pendency of the appeal, so the Appellate Division remanded the case back to the same judge in the Supreme Court because, as that judge had conducted the hearings and heard the testimony of Mr. DeMartino firsthand, he was in the best position to weigh the evidence in determining the validity of the marriage. However, that judge then died before the case could be heard. The subsequent NYS Supreme Court judge to whom the case was assigned then remanded the case to Surrogate's Court, as the Appellate Division's stated rationale for keeping it in the Supreme Court no longer applied.

It was at that point that Christopher Di Giulio was retained to defend the estate against the claims of Mae Ann Gilbert.

Ms. Gilbert asserted that she was entitled to half of the considerable estate of the childless Aldo DeMartino, as his surviving "widow," and rejected all offers of settlement for less than that amount. After a number of conferences before the Surrogate, as well as some procedural wrangles engendered by the frantic "catch-up" efforts of Ms. Gilbert's attorney (who was the last in the series that she had hired and fired), a hearing was held before the Surrogate, on the issue of the validity of the marriage. This hearing included testimony from Ms. Gilbert; from medical experts attesting to Mr. DeMartino's lack of capacity to understand what he was doing when Ms. Gilbert subjected him to the wedding ceremony; and from a number of Mr. DeMartino's relatives, all of whom attested to Mr. DeMartino's mental and physical frailties.

After the conclusion of the hearing and the submission of post-hearing memoranda by Mr. Di Giulio and Ms. Gilbert's counsel, the Surrogate issued a decision in which he determined that, based upon the testimony and evidence, Mr. DeMartino had lacked the mental capacity to enter into a valid marriage; that the marriage should be annulled; and that the claims of Ms. Gilbert against the estate should therefore be dismissed. A decree to that effect was settled and entered. Ms. Gilbert's subsequent appeal was dismissed.

Motion court grants summary judgment dismissing all claims against our client in Yani Crucen v. Pepsi-Cola Bottling Company of New York, Inc., Supreme Court, Westchester County Index No. 57995/2016 (Hon. Sam D. Walker, J.)

In a negligence action arising from an accident of May 11, 2013, plaintiff claimed that, while at work as an employee of Empire City Casino at Yonkers Raceway, she slipped and fell inside the employees' cafeteria allegedly due to the presence of liquid on the floor. Plaintiff insisted that the liquid came from a leak in a self-service soda fountain that was owned by our client, Pepsi-Cola Bottling Company of New York. No witness except the plaintiff claimed that there was a leak in the soda fountain; no leak in the soda fountain was ever reported to Pepsi by the operator of the cafeteria either before or after the accident; Pepsi was never asked to repair the soda fountain during the year before, or in the aftermath of, the accident; and there was nothing but plaintiff's own speculation, based on nothing but the liquid's proximity to the soda fountain, to support her claim that there was a leak and that the leak was the source of the liquid on the floor. Moreover, the plaintiff admitted that post-accident photographs showing a soda cup lying on the floor in the same location as the liquid, and she did not know when or how the cup came to be there. We moved for summary judgment to dismiss the complaint, upon the grounds that Pepsi was not negligent in that: i) Pepsi having no duty to maintain the floor of the cafeteria, plaintiff's admission demonstrating an equally probable source for the liquid on the floor (ie. a dropped soda cup) having nothing to do with any alleged leak in Pepsi's soda fountain, was fatal to her case; ii) there was nothing but plaintiff's own speculation to support the claim of there having been a leak in the soda fountain; and iii) even assuming that it was possible for the soda fountain to have momentarily sprung a leak shortly before the plaintiff fell and then spontaneously stopped leaking after she fell (thereby accounting for why no one called Pepsi to report a leak either before or after the accident), the evidence showed that Pepsi did not create or have actual or constructive notice of any such leak, nor actual notice of any such leak as a "recurring condition" so as to be chargeable with constructive notice of each recurrence of that leak. The court agreed, and dismissed all claims against our client, Pepsi.

Motion court grants summary judgment dismissing all claims against our client in Jody Govenar v. Brushstroke, etal., Supreme Court, New York County Index No. 160114/2013(Hon. Arlene P. Bluth, J.)

This action for personal injuries arose from plaintiff's trip-and-fall accident on a public sidewalk. Our client, one of ten defendants in the action, was the owner of the building which abutted the sidewalk. The plaintiff fell on a Sunday afternoon, after the sidewalk had somehow become covered with a greasy but virtually invisible substance, for the length of roughly half a block, from curb to building line. Conflicting evidence showed, at best, that the greasy condition arose at some unknown time on that Sunday. Sunday was the one day of the week that our client's building superintendent did not work. We moved for summary judgment dismissing all claims against our client, on the ground that our client did not create the condition nor have actual notice of the condition because the building superintendent, our client's lone employee at the building, was never there on that Sunday; nor did our client have constructive notice of the condition because i) the condition was not "visible and apparent" (even plaintiff admitted she did not see it before she fell), ii) the condition did not exist long enough for our client to have discovered it, since it only existed on the one day that the building superintendent was not working, and iii) there was no evidence of the condition being a "recurring condition" because no one had ever seen such a condition in that location before. The court agreed, and granted summary judgment severing and dismissing all claims against our client.

First Department reverses the lower court and grants summary judgment to our client in Barry v. Pepsi-Cola Bottling Co. of N.Y., Inc., 130 A.D.3d 500, 11 N.Y.S.3d 857 (1st Dept. 2015).

This was a personal injury action, litigated by William Thymius, brought by the passenger of a vehicle which rear-ended an unoccupied Pepsi truck while it was double-parked in the course of making a delivery. At the conclusion of discovery, we moved for summary judgment dismissing all claims against Pepsi upon the grounds that the mere presence of the Pepsi truck was not a proximate cause of the accident, and that the rearward driver had no legally recognizable, non-negligent explanation for the accident. These arguments were based on the fact that i) the Pepsi truck was double-parked in plain sight entirely within the right lane of a straight and level section of a two-way, four-lane, residential street having a 25 mile-per-hour speed limit, in broad daylight, in good weather, some 200 feet beyond the last intersection, during a period when there was virtually no traffic at all on that street, and ii) the other driver’s only offer of a non-negligent excuse for the rear-end collision was that he was blinded by sun glare at a point some 200 feet back of where the truck was double parked, so that he allegedly did not see the truck so as to be able to stop or change lanes to avoid it as he admitted he could otherwise have done without any difficulty or hindrance.

The motion court denied our motion for summary judgment, holding that there were there were (unspecified) triable issues as to foreseeability and proximate cause. We thereafter appealed that decision to the Appellate Division, First Department, arguing, among other things, that i) irrespective of whether the double-parking of the Pepsi truck was legal or illegal, under the particular circumstances its mere presence did nothing to actually cause the other driver to collide with it, and ii) sun glare has been specifically rejected in the case authorities as a non-negligent excuse for a rear-end collision.

The Appellate Division granted our appeal, reversed the lower court, and granted our motion for summary judgment dismissing all claims against Pepsi, holding that “given the road conditions at the time of the accident, namely, the favorable weather, the time of day, and the relatively minimal amount of traffic on the road at the time," the double-parked Pepsi truck “merely furnished the condition or occasion for the occurrence of the event but was not one of its causes,” and that the “proffered excuse for the accident, that sunlight temporary blinded the driver of the rear vehicle, does not constitute a nonnegligent explanation for the rear-end collision” (130 A.D.3d at 500).

Defense Verdict obtained by Christopher Di Giulio in Daniello v. State of New York, NYS Court of Claims, claim no. 116650 (Hon. Gina Lopez-Summa, J.)

In an action sounding in negligence and the Labor Law, the claimant, Joseph Daniello, sued the State of New York (our client) for personal injuries arising from an accident which occurred on a road construction/paving project on May 2, 2007. Claimant alleged that while working as a laborer in the employ of the general contractor on the aforesaid project, he was struck and partially run over by the right rear wheel of a “road grader” machine while it was being operated by an independent subcontractor, as part of the construction of a new entrance road to Republic Airport in Suffolk County. After we moved for summary judgment on behalf of the State and obtained dismissal of all claims except the one pursuant to Labor Law §241(6), a liability trial was held on the sole issue that bore on that cause of action: Whether the backup alarm on the road grader was loud enough to comply with the Industrial Code provision requiring that such alarms be "audible to all persons in the vicinity of the machine above the general noise level in the area."

At trial, claimant himself testified that he had never once heard any backup alarm sounding on the road grader during his two and a half days on the site prior to the accident, and he presented the testimony of a road construction expert (not a scientist) who opined in essence that the road grader's backup alarm was not loud enough to comply with the regulation simply because the claimant said he never heard it. Claimant also contended that the State's witnesses had conspired to lie about their having heard the backup alarm each time the road grader was operated in reverse during the two and a half days leading up to the accident, in order to conceal that they had ignored that safety issue prior to the accident to avoid having to shut down the job.

Mr. Di Giulio presented the testimony of five witnesses on behalf of the State, which demonstrated that i) the road grader had a fully functional and clearly audible backup alarm during the two and a half days leading up to the accident, and ii) the road grader’s backup alarm could, if need be, have been repaired at the jobsite within an hour, or another road grader could have been brought in, so that there was no incentive for anyone to breach their job duty to ensure jobsite safety (which included the witnesses' own safety) for fear that the job would be shut down for any appreciable length of time if a non-functioning backup alarm on the road grader were addressed.

Although the trial was bifurcated and damages were not before the court, the alleged injuries included leg and pelvic fractures; soft tissue knee injuries; left L4-5 herniated disc with thecal sac compression and L5 root compression; a C3-4 anterior cervical discectomy with fusion; as well as recovery for past and furture lost earnings (claimant alleged he was permanently unable to return to gainful employment). The demand was $5.5 million; no offer was made.

After three days of trial and the submission of post-trial briefs, the judge ultimately rendered a decision in favor of our client, dismissing the case on June 30, 2014.

Defense Verdict obtained by Christopher Di Giulio in Patrick Delprete v. Kirsch Bottling Company Inc., and Pepsi-Cola Bottling Company of NY, Inc., New York Supreme Court, Suffolk Co., Index # 1217/08, (Hon. E. Pines, J.)

On Jan. 24, 2005, plaintiff, Patrick Delprete, 49, a truck driver, slipped in the loading area of a Pepsi's warehouse in College Point, Queens. Delprete sued the warehouse's owners and operators, our clients, Kirsch Bottling and Pepsi-Cola. He alleged that the defendants were negligent in their maintenance of the premises which created a dangerous condition. Delprete's counsel, who claimed that plaintiff slipped on ice and snow, presented an independent witness who testified that ice and snow were present. Delprete's expert meteorologist opined that any ice or snow would have been a residual product of a significant storm that occurred two days prior to the accident. Delprete's counsel presented a photograph that demonstrated that ice and snow had accumulated near the warehouse's entrance, but the photograph did not depict the area in which Delprete fell.

Chris presented several of Pepsi employees, who contended that the company had adequately addressed any snow or ice that was created by the storm. Another employee contended that ice and snow were not present when Delprete fell. We also contended that the loading dock area was heated and that the heat would have melted any ice or snow that workers had failed to remove.

Although the trial was bifurcated and damages were not before the court, the injuries were a torn rotator cuff; arthroscopy; torn supraspinatus tendon; torn labrum; shoulder impingement. Delprete sought recovery of his past lost earnings and damages for his past and future pain and suffering. Demand was $250,000; no offer was made.

After four days of trial and one hour of deliberation, the jury rendered a defense verdict. Judge Pines denied plaintiff's counsel's motion to set aside the verdict.

Second Departent affirms grant of summary judgment to our clients in DeLuca v. Pecoraro, 109 A.D.3d 636, 970 N.Y.S.2d 822 (2nd Dept. 2013)

In an action brought pursuant to RPAPL Article 15, litigated by William Thymius, our clients (three siblings) sought a judgment i) declaring that they were the sole owners of certain real property, and that the (estranged) husband of one of the siblings had no ownership interest in the said property, and ii) enjoining the husband from collecting and keeping the rents from that property as he had been doing in defiance of our clients' wishes. In the face of our motion for summary judgment on behalf of our clients, the husband not only served opposition but also sought leave to amend his answer to assert affirmative defenses which were, in effect, factually counter to those he had raised in his initial answer, but based on more sound legal theories (he had changed attorneys).

Having originally raised affirmative defenses which alleged that his wife, our client, had "schemed" with her two siblings to defraud him of what was "his," the defendant husband sought leave to amend his answer, after his plaintiff wife had died while the action was still pending, to abandon his original "schemer" allegation and assert instead that his late wife had been the mentally infirm victim of undue influence by her brother and sister.

The motion court granted our motion for summary judgment, and denied the husband's motion for leave to amend his answer. On the appeal by the husband, the Appellate Division, Second Department, affirmed the lower court's decision in all respects, holding that summary judgment was properly granted to our clients because the husband had absolutely no basis for claiming any ownership interest in the property, and holding that leave to amend the answer was properly denied because the proposed amendments were factually counter to the original affirmative defenses and therefore surprised the surviving plaintiffs, and would be prejudicial to them if the amendments were permitted.

Second Department grants summary judgment to our client in Ingram v. Long Island College Hospital, 101 A.D.3d 814, 956 N.Y.S.2d 107 (2nd Dept. 2012)

Plaintiff brought suit against defendant Long Island College Hospital as the result of a trip-and-fall accident inside the Dialysis Unit operated by third-party defendant, FMS New York, Inc. This office representing FMS moved for summary judgment dismissing the complaint of the plaintiff, on the ground that the prime defendant did not create or have actual or constructive notice of the condition which caused the accident. The prime defendant thereafter cross moved for the same relief. The evidence showed without contradiction that no one had any idea how long the plastic wrap which tripped the plaintiff might have been on the floor in the accident location before the plaintiff had her accident, except that, if it was there as alleged, it could only have gotten there at some entirely unknown point during the half hour before the accident occurred at 6:00 a.m., and that whoever dropped it during that period had to have been an employee of another entity which was not a party to the lawsuit. The lower court denied FMS’ motion and the prime defendant’s cross motion, finding, among other things, that while the prime defendant did not create or have actual or constructive notice of the condition, there were issues of fact as to whether the plastic wrap on the floor was a "recurring condition" of which the prime defendant had actual notice and was therefore chargeable with constructive notice of each recurrence of it. We appealed the decision, and the prime defendant appealed as well. The Appellate Division, Second Department, reversed the lower court and dismissed the plaintiff’s complaint, holding, among other things, that we had properly demonstrated that there was no "recurring condition" and that there were no triable issues in that regard.

Defense Verdict obtained by Christopher Di Giulio in Lucy Courbertier v. Academy Bus LLC. Academy Express LLC. Rory Youman, Supreme Court, Kings Co., Index # 10411/06 (Hon. Jack M. Battaglia, J.), and affirmed on appeal by the Appellate Division, Second Department (76 A.D.3d 500, 905 N.Y.S.2d 665)

On Feb. 3, 2006, plaintiff Lucy Courbertier, was a passenger in a bus that flipped and rolled on an exit ramp of the Garden State Parkway, in Egg Harbor, N.J. Courbertier sued the bus's driver, Rory Youman, and the bus's owners and operators, Academy Bus LLC and Academy Express LLC, claiming injuries to her back, neck and several ribs. The trial addressed damages only, and was limited to the plaintiff's claim of a spinal fracture.

Chris contended on behalf of the defendants that Courbertier's spinal fracture was a product of preexisting injuries of her back. He offered evidence that Courbertier suffered extensive abnormalities of her back, that the problems dated to 1979, that the preexisting fixation hardware had degenerated and that Courbertier had undergone fusion of multiple levels of her spine's lumbar region. He also claimed that the spinal fracture was not acute. The defense's expert radiologist opined that the fracture preexisted the accident, and that at the time of her initial hospitalization Courbertier's physical presentations did not suggest that she was suffering an acute fracture of a vertebra, and he noted that the hospitals' staffs did not diagnose such a fracture.

The jury rendered a defense verdict. It found that the accident was not a substantial cause of Courbertier's spinal fracture.

Plaintiff's counsel appealed to the Appellate Division, Second Department, contending that the jury's verdict was against the weight of the evidence, and that reversible errors had occurred during the trial. The Appellate Division affirmed the defense verdict, holding that the jury's finding that the accident was not a substantial factor in bringing about the spinal compression fracture was based on a fair interpretation of the evidence, and that the plaintiff's remaining contentions were either unpreserved for appellate review or were without merit.

Motion court grants summary judgment dismissing all claims against our client in Estate of Tsering v. New Today's Laundromat, Inc., etal., Supreme Court, Queens County Index No. 6690/2008 (Hon. Allan B. Weiss, J.)

This action for personal injuries and wrongful death arose from an accident in which the plaintiff’s decedent fell down a flight of basement stairs in a laundromat and subsequently died in the hospital. It was alleged by the plaintiff, in part, that the staircase was defectively constructed in violation of applicable building code requirements. Our client, Clean Rite Centers, LLC, was the owner of a laundromat business that had been operated out of the subject premises by its affiliate, CRC Management Co., LLC, two tenancies prior to the time of the accident. After discovery was completed, we moved for summary judgment dismissing all claims against our clients, based upon the uncontradicted evidence which demonstrated that i) our clients had ceased all connection with the subject premises some two years before the accident occurred, and ii) the allegedly defective stairway was constructed and installed at some unknown time after our clients had ceased all connection with the premises, such that the offending stairway did not even exist during the time that our clients had any connection with the premises. The court agreed, and granted summary judgment severing and dismissing all claims against our clients. Although plaintiff served and filed a Notice of Appeal, the appeal was never perfected.