Sample of Recent Accomplishments in Substantive Motion Practice

• We obtained summary judgment on behalf of Bovis Lend Lease Interiors, Inc. (the construction manager), Metropolitan Life Insurance and Annuity Company (the owner of real property), and Insignia Residential Group, Inc. (the property manager) dismissing the complaint of a plaintiff who claimed she was injured when she was struck by a falling panel of a wooden perimeter barricade separating the temporary walkway from the construction project. She claimed that the falling wooden panel knocked her to the ground and tore the ligaments in her right thumb which required surgical repair. We argued that our clients owed no duty of care to the plaintiff because they did not exercise control over the work and did not cause or create the condition that caused the plaintiff's injury. Further, the subcontractor owed the construction manager, owner and property manager indemnity based upon the language of the contract and it having actually performed the work. The court agreed with our position and dismissed the plaintiff's complaint against all three of our clients and awarded our clients indemnity against the subcontractor that actually installed the perimeter fence. Abigail Diaz as Administrator of the Estate of Carmen Pantoja v. Bovis Lend Lease, et al.; Supreme Court, New York County, Index No.: 106972/03 (October 9, 2007).

• In a medical malpractice action, where we represented a doctor specializing in hair transplants, we obtained dismissal of the plaintiff's complaint through a summary judgment motion. Our client conducted two separate successful hair transplantations. Plaintiff was claiming that our client caused an arteriovenous fistula in the left temporal region of the plaintiff's head, and headaches, among other things. The court dismissed plaintiff's complaint after it was found that the doctor did not depart from good and acceptable standards of practice, and that the type of surgery done by the doctor could not have caused an arteriovenous fistula, or headaches. Supreme Court, New York County, Index No. 116112/04 (June 2007).

• We obtained summary judgment on behalf of a property owner and general contractor granting them contractual indemnity over a construction subcontractor, plaintiff's employer, in a subrogation action in which the owner's and general contractor's insurer had also issued the subcontractor's excess policy. However, the insurer had successfully disclaimed under the excess policy in a related declaratory judgment action and therefore the action was not barred by the antisubrogation doctrine. The summary judgment decision will allow the carrier to recover up to $2.5 million of an earlier $3.5 million settlement with the injured plaintiff. H.R.H. Construction Corp. v. Sorbara Construction Corp.; Supreme Court New York County, Index No. 401328/06 (April 2007). 

• We had moved for summary judgment seeking dismissal of plaintiff's claims and all cross claims against our owner and construction manager client in a New York County Labor Law action. Plaintiff claimed he suffered injuries to his right arm and elbow when he stepped into a hole in the floor at a constructions site. The Court granted the portion of our motion seeking dismissal of plaintiff's Labor Law 240(1) and 241(6) claims, but denied our motion to dismiss plaintiff's Labor Law 200 claim and the defendants' cross claims. While we elected not to file a notice of appeal from the denial of our motion for summary judgment, during oral argument of the appeal perfected by another party, we asked the Court to search the record and dismiss the plaintiff's claims and all cross claims against our client. The Appellate Division, First Department, upon searching the record, granted our clients' summary judgment motion finding that the evidence indicated that our construction manager client only had general supervisory and coordinating authority at the worksite which is insufficient to trigger liability and further that there was no evidence that our owner client supervised or controlled any work performed to date. Burgalassi v. Mandell Mech. Corp.; 2007 NY Slip. Op. 02432 (1st Dept. March 20, 2007).

• We obtained dismissal of plaintiff's three causes of action brought against our client under state law as these state claims were pre-empted by federal law. In this case plaintiff alleged that it engaged one of the other defendants to transport a quantity of merchandise from and to certain locations. Plaintiff alleged that said defendant subcontracted some of its deliveries to our client, a motor carrier. Plaintiff alleged that the defendants failed to deliver the quantity of merchandise that they were engaged to deliver and in the case of our client, the amount sought totaled in excess of $90,000. Plaintiff sued under the Carmack Amendment to the Interstate Commerce Act though also sued under state law, alleging claims of negligence and conversion. The Court found, among other things, that since the alleged loss occurred during shipment, there is no room for a non-Carmack claim. Interestingly, the Court found that even though the co-defendants did not move for the same relief, the Court also dismissed the non-Carmack claims against them based upon our motion. Intertex Apparel Ltd. v. NYK Logistics (Americas) Inc., et al., 06 Civ. 15266; Southern District of the State of New York (February 2007).

• We obtained summary judgment on behalf of Bovis Lend Lease, Inc. in a wrongful death action arising out of an 82-year old decedent's trip and fall caused by an alleged defect in the threshold of the main doorway at the Harrison Conference Center in Glen Cove, New York. Bovis was impleaded as a third party defendant as it had been hired to perform construction services prior to the date of this accident. We argued, among other things, that dismissal was warranted since there was no proof that Bovis worked on, or was asked to renovate, repair or construct the threshold on which decedent supposedly fell. In granting our motion, the Court found that there was no evidence of Bovis' obligation to do work on the threshold where decedent allegedly fell and further there was no evidence to indicate that Bovis breached a duty with respect to assuring that the site was ADA compliant. The case subsequently settled for $700,000 without any contribution on the part of our client. Bernice Greenberg, et al. v. Harrison Conference Center of Glen Cove, Inc., et al.; Supreme Court, Nassau County, Index No.15258/04 (November 2006). 

• We obtained summary judgment on behalf of the American Movie Classics Corporation ("AMCC") in a suit in which the plaintiff claimed brain damage was sustained as a result of a fall while filming a television pilot entitled "Don't Try This at Home" also known as "Double Take". The Court found that AMCC did not control or supervise the television pilot and therefore could not be held liable to the plaintiff. In addition to obtaining a dismissal of all claims and cross-claims against AMCC, the court also awarded AMCC reimbursement of all defense fees and costs from the co-defendant production company. Nicole Kazdin v. American Movie Classics, Supreme Court, New York County, Index No. 119693/03 (November 2006).

• We obtained summary judgment on behalf of our architect client hired by the owner of a construction project. We argued that our client performed no architectural/engineering work with respect to the subject construction project and further was never in privity of contract with the plaintiff. Plaintiff's complaint made numerous allegations against our client claiming architectural/engineering malpractice. In actuality, our clients rights and duties were limited to clerical and expediting tasks. Further, our client had no control or direction of the construction site and had no design or planning responsibilities. Hanover Insurance v. Wildwood Development Corp., Supreme Court, New York County, Index No. 107726/04 (October 2006).

• We obtained summary judgment on behalf of Merrill Lynch, Pierce, Fenner & Smith, Inc. dismissing a third party action brought against them in a Civil Court, New York County action arising out of injuries plaintiff allegedly sustained while exiting a freight elevator at one of our client's locations. The action was initially commenced in Supreme Court but was subsequently transferred to Civil Court. On behalf of Merrill Lynch we moved to dismiss arguing that the elevator was not defective or in a dangerous condition. Further, we submitted an expert report attesting that at the time of the accident the elevator was functioning properly and was in compliance with all safety codes. In granting our motion, the Court found that there was no evidence that the subject elevator was improperly maintained or serviced which could form a basis of a claim. Virgilio Torres v. The Bauman Family Foundation, et al.; Civil Court, New York County Index No. 110 TSN 2001 (October 2006). 

• In this New Jersey personal injury action, we obtained partial summary judgment on liability on behalf of our construction manager client  fourth party claim against  the plaintiff’s employer.  Plaintiff claims he was injured when a personnel hoist he was riding on with others began to drop rapidly from about the fifteenth floor all the way down until it hit the safety buffer stop at the bottom of the shaft way.  Plaintiff sustained injuries to both knees and to his back.  In our motion we argued that Bovis was entitled to partial summary judgment on liability on its fourth-party claim for contractual indemnity against plaintiff’s employer.  The Court granted our application subject to no finding by the jury that our client was 100% responsible for the accident.  Garrett v. Board of Education of the City of Elizabeth, et al., Superior Court, Union County (NJ), Docket No. UNN-L-2653-04 (August 2006).

• We obtained summary judgment on behalf of Harlem Center, LLC sued as Forest City Ratner in a personal injury action in which the plaintiff claimed that he tripped over construction debris on a sidewalk in Manhattan.  We argued that our client did not own, maintain, operate, control, manage, repair or make use of the land, buildings or sidewalk abutting the premises and as such, was not involved in the plaintiff’s alleged accident and had no relationship with the premises.  As such, the case against our landowner client was dismissed.  Willie Little v. City of New York, et al.; Supreme Court, Kings County, Index No. 103646/03 (August 2006).

• We obtained summary judgment in favor of a state college in a personal injury action brought to recover damages from when the plaintiff was sexually assaulted in the school’s dormitory.  The plaintiff believed the school (and therefore the state) should be held liable for the assault on the grounds that the college has rules; and that failure to enforce these rules caused the plaintiff to be the victim of an attack.  We successfully demonstrated that the school was under no duty to protect the plaintiff under these circumstances.  Although the Court of Claims initially denied our motion for summary judgment, holding that there was a triable issue of fact, the Second Department reversed on appeal finding that the school did not owe a duty to protect the plaintiff from students (plaintiff included) that broke the rules and that there was no reasonable action the school should have taken that would have prevented this injury.  When the plaintiff could not then establish a triable issue of fact, the Court dismissed the plaintiff’s complaint against the college. Diane F. (Anonymous) v. State of New York, 2006 Slip Op 03837 (2^nd Dept. 2006).

• We obtained summary judgment dismissing all claims and cross claims in a Bronx County personal injury action on behalf of Cowan Systems, LLC and Dean Allen Dillman in which plaintiff claims injuries as a result of a three motor vehicle accident on the Cross Bronx Expressway in Bronx, New York.  We argued, and the Court found that our client, whose vehicle was struck in the rear was not negligent and that the sole proximate cause of the collision was the negligence of the operator of another vehicle.  Kisha Fennel v. Emar Group, Inc., et al.; Supreme Court, Bronx County, Index No. 14962/02 (May 2005).

• We represented Cablevision Systems Corp. in a personal injury action where plaintiff alleged that construction performed by Cablevision caused him to fall off his bicycle and sustain personal injuries.  We moved for summary judgment before the start of discovery because we found that the location where the plaintiff claimed his accident occurred was not a location where Cablevision conducted street construction.  The court ruled that we had shown a prima facie entitlement to summary judgment, while plaintiff had failed to come forward with any proof in admissible form to raise an issue of fact.  Accordingly, the motion for summary judgment was granted and the complaint dismissed as to Cablevision. Tillem v. Cablevision Systems Corp., et al., Supreme Court, Westchester County, Index No: 02341/05 (March 2006).

• We successfully defeated Petitioner’s order to show cause which sought leave to serve a late notice of claim against our client, the Dormitory Authority of the State of New York.  The Petitioner claims to have injured his back in a work related accident.  The Court denied the Petitioner’s request based on our responses to each of the Petitioner’s assertions.  One noteworthy argument rebutted the Petitioner’s contention that our client did not suffer any prejudice by the delay.  The Court agreed with our argument that because it was a transient condition in question (a wet/slippery condition on a ramp), the delay impeded our client’s ability to conduct a proper investigation stating that “it could not be reasonably argued these conditions remained the same for a long period of time.”  The Court also agreed with our position on other issues including service upon the Attorney General being insufficient; failure to discover that our client was a potential defendant; and the plaintiff’s injury was insufficient to toll the 90-day notice period.  Philip Murtagh and Cynthia Murtagh v. Dormitory Authority of the State of New York, et al.; Supreme Court, Bronx County Index No.: 6116/06 (March 2006).

• We obtained a dismissal of a claim that accused several local officials of violating plaintiff's constitutional rights.  Our client was named in the lawsuit individually, and in his position as Town Fire Commissioner.  After commencement of the proper litigation, the town entered the plaintiff's property to remove some junk that the plaintiff had stored outdoors, which had caused some concern.  After this incident the plaintiff brought a lawsuit, which was promptly dismissed.  While on the property, town employees concluded that the garage and an adjacent pipe rack were dangerous and violated the town code.  Again, after following proper procedure, the town entered the plaintiff's property and demolished the faulty structures.  The plaintiff immediately brought another lawsuit against our client, as well as the town and several of its officials, which again was promptly dismissed by the court.  As a result of our motion, the Court held that, on the basis of res judicata, the plaintiff's latter action was precluded and dismissed all the claims against our client.  The Appellate Court reversed the lower court's decision pertaining to the Town of Hempstead, but affirmed with regards to our client. Martin Davis v. Town of Hempstead, et al., 2006 WL 172216 Court of Appeals for the Second Circuit; Docket No. 97-CV-4377 (January 2006)

• We obtained summary judgment dismissing plaintiff's complaint and all cross claims in a Supreme Court, Putnam County personal injury action. Plaintiff was injured when she tripped on an expansion joint in Grand Central Terminal. Plaintiff sustained severe left knee injuries and claimed seven figure lost wages. We established that our construction manager client left the jobsite sixteen months prior to the plaintiff's accident, and did not, as a matter of law, own, operate, control or maintain the expansion joint on which plaintiff allegedly tripped. The Court agreed and found that Bovis owed no duty to the plaintiff and ruled that where there is no duty, there is no liability. Suzy Sparozic v. Bovis Lend Lease LMB, Inc., et al Index No.: 830/04, Supreme Court, Putnam County (December 2005).

• We obtained summary judgment in a personal injury where the infant plaintiff alleged that he fractured his left wrist when he tripped and fell on an exterior staircase leading to the New York City Housing Authority’s Twin Park West Consolidated Apartment complex.  The successful motion for summary judgment was made prior to service of a bill of particulars.  NYCHA established it did not own or control the staircase.  Vernal Anderson, et al. v. The City of New York, et al., Supreme Court, Bronx County, Index No. 6130/05.  (November 2005).

• In a New York asbestos litigation we were able to obtain a dismissal of all claims against our client, without any payment on its behalf, despite the fact that the client was named by the plaintiff at his deposition, an event that is rare in asbestos litigation.  This result followed the marshalling of deed records dating back over 50 years for the subject property to preclude any issue of the client’s involvement in the work at the location.  Vincent Masiello v. 425 Park Avenue Company, et al., Supreme Court, New York County, Index No.: 111201/04 (October, 2005).

• We obtained summary judgment in favor of a carrier in an action brought to recover damages for loss of a shipped good when an employee of the defendant, pursuant to the shipper's instructions, left a parcel on the plaintiff's front steps without obtaining a signature.  Plaintiff claims that the parcel was subsequently stolen before he received it. The Carmack Amendment was implemented to govern claims against a carrier for loss of a shipped good, and preempts state law claims.  In this matter, however, the plaintiff argued he should be allowed to recover under state law because the parcel had successfully reached its destination and was no longer in transit at the time it went missing, but rather the defendant was negligent in leaving the package unattended on his doorstep.  In our motion for summary judgment we argued that there was no valid reason to preclude the application of the Carmack Amendment as the controlling law.  Although the Court recognized that the plaintiff might have a common law claim against the shipper, such a claim against the defendant carrier was preempted by the Carmack Amendment.  As a result of our motion, the court dismissed the plaintiff’s complaint against the shipper. Gary Alexander v. FEDEX, 2005 WL 2205422 (D.N.J.). United States District Court, New Jersey; Index No. 04-5982FSH. (September 2005).

• We successfully defeated a motion for summary judgment brought by the plaintiff who claimed damages as the result of the defendant's truck rear-ending her vehicle.  The plaintiff believed she was entitled to summary judgment because her vehicle was hit from behind.  In opposition to this motion, we argued that there was a genuine issue of material fact.  Specifically, our position was that the accident was caused by the plaintiff changing lanes without signaling, cutting off the defendant's truck in the process, and then coming to a complete stop on the highway.  This conflicting argument was sufficient for the Court to determine that there was a material fact in dispute.  As a result of our argument in opposition, the Court could not grant the plaintiff's motion. Melinda Layton, et al. v. Villari Brothers Trucking, Inc., et al., 2005 WL 2338860 (D.N.J.).  United States District Court, New Jersey; 04-3956MLC (September 2005).

• We obtained summary judgment on behalf of the State of New York in an action brought to recover damages for personal injuries sustained when a former student who was previously banned from the premises assaulted the Claimant on a SUNY Campus. Claimant based her action on alleged negligent maintenance of the dormitory door locks and the failure to replace an absent sign-in attendant responsible for the dormitory. Claimant's claimed injuries were a broken nose and a deviated septum, which resulted in chronic nose bleeds and nasal congestion. Prior to our motion for summary judgment, claimant's settlement demand was $250,000.  As a result of a thorough investigation process and significant discovery, we established that the defendant, the State of New York, did not breach its duty to maintain the dormitory's door locks since they were proven to be fully functional on the night of the assault. Furthermore, the Court also held that the Claimant did not raise a triable issue of fact as to whether any alleged negligence by the defendant was a proximate cause of her injuries. Ward v. State of New York, Court of Claims Claim No.: 103846 (June 2005).

• We successfully obtained a dismissal of a claim for personal injuries against a taxi driver and his employer company in a cause of action brought by a passenger who allegedly suffered injuries when the driver's taxi collided with something.  In our motion to dismiss, we argued that the Court lacked personal jurisdiction over either of the defendants.  The plaintiff opposed this motion by arguing that diversity jurisdiction did exist and alternatively asked the Court to transfer the case to the proper District Court in Texas in the interest of justice.  Our reply papers reinforced the lack of jurisdiction argument, as well as explained that the transfer the plaintiff requested was inappropriate because the statute presupposes that transferor venue is proper.  The Court agreed with our interpretation of the statute.  As a result of our motion and reply arguments, the Court dismissed the case against both the driver and the taxi company.  Andrew Daros v. Carlton Tokoyo and Roy's Taxi, 2005 WL 1229734 (E.D.N.Y.).  United States District Court, Eastern District of New York; Index No. 05-CV775 (May 2005).

• We obtained summary judgment in favor of a construction manager in an action brought to recover damages for personal injuries sustained when a trade contractor’s employee while performing asbestos abatement and demolition work, slipped and fell from a wet concrete stairwell platform into an orange plastic safety netting which replaced a section of stairwell railing.  Plaintiff suffered a dislocated shoulder as well as a claimed shoulder deformity.  Plaintiff commenced his action seeking damages based upon claimed common-law negligence as well as violation of Labor Law §§ 200, 240(1) and 241(6).  In our cross motion for summary judgment we argued that there was no evidence that our client acted as general contractor overseeing the work of plaintiff’s employer.  The Court determined that our client was not a general contractor or statutory agent of the owner the City of New York subject to liability under any of the theories interposed in plaintiff’s complaint as our client lacked any contractual relationship with plaintiff’s employer.  As a result of our cross motion, the court dismissed the plaintiff’s complaint as well as all cross claims against the construction manager.  Miroslaw Linkowski v. The City of New York, et al.  Supreme Court, Queens County; Index No. 15685/02.  (March 2005).

• Obtained summary judgment dismissing plaintiff’s Complaint and all cross claims in a Supreme Court, Westchester County personal injury action.  Plaintiff, a bicyclist was injured when her bicycle stopped suddenly due to a claimed roadway depression and plaintiff was thrown off.  Plaintiff sustained severe facial injuries which necessitated multiple surgeries.  We established that the nearby trench to be utilized by our client, Cablevision of Westchester, was to be excavated by another party and that in fact this work had not yet commenced at the time of plaintiff’s accident.  At the time this summary judgment motion was decided, this case had been scheduled for trial and plaintiff had made a seven figure settlement demand.  Lisa Greenberg v. The Town-Village of Harrison, et al., Supreme Court, Westchester County, Index No. 11439/00 (December 2004).

• In a New Jersey action, we were able to reverse an insurance carrier's premature acceptance of defense and indemnity and thereafter obtain a dismissal of all claims against our client. In this case the plaintiff sought to recover for personal injuries sustained when he slipped and fell following a snowstorm on a ramp leading from a sidewalk onto a parking lot at a Pathmark Supermarket in Kearny, New Jersey. The plaintiff brought the action against the tenant Pathmark, the landlord, and our client, the snowplow contractor. Prior to our firm’s involvement, the carrier for the snowplow contractor had accepted the defense and indemnity of the landlord based on the indemnity agreement contained within the service contract. Through discovery and investigation, it was shown that the condition of the ramp was due to the type of paint used on the ramp and not snow or ice. We successfully argued that the accident did not arise from the acts of our client and the defense of the landlord was undertaken by their own carrier. We then moved successfully for summary judgment dismissing our client from the action. Viola v. Pathmark Stores, Inc., et al., Superior Court, Essex County (NJ), Docket No. L-706-03 (November 2004).

• We obtained summary judgment in a New Jersey action wherein an elderly plaintiff tripped and fell over a stanchion attached to a utility pole used by various utilities including our client, Time Warner Cable.  By investigating the history of the subject pole and obtaining testimony from key cable company personnel, our motion was granted and all claims against our client, including crossclaims, were dismissed.  Cutaia v. Time Warner Cable, Superior Court, Bergen County (NJ), Docket No. L-4628-03 (September 2004)

• Obtained summary judgment dismissing Plaintiff’s complaint in favor of a premises owner and management corporation in a case where the plaintiff claims she slipped and fell as she descended a sloped ramp covered with snow at the interior entrance of the convenience store at a service station. We successfully established that the ramp work which created the hazardous condition that caused plaintiff’s accident was performed without the owner’s consent.  We also established that a right of re-entry provision in a lease agreement by itself is insufficient retention of control to impose liability on an out of possession landlord for injuries caused by a dangerous condition, unless such condition amounts to a statutory violation and contains a significant structural or design defect.  As a result, plaintiffs’ complaint and all cross claims were dismissed.  The Court also ordered that the co-defendant must reimburse all of the costs incurred by our clients in the defense of this action.  Catherine Johnson et al., v. Metro Resources, Inc., et al.; Supreme Court, Nassau County, Index No. 6396/02 (August 2004).

• In a New Jersey action, plaintiff sought to recover for personal injuries sustained when he tripped and fell at a construction site at the Bloomfield Middle School in Bloomfield, New Jersey. The plaintiff brought an action against the Bloomfield Board of Education for his personal injuries. The Bloomfield Board of Education, in turn, brought a third-party action against the project manager, whom we were retained to defend. On behalf of the project manager, we successfully obtained summary judgment based on the New Jersey Tort Claims Act, which establishes a threshold qualification for the recovery of non-economic damages against a public entity. Although this threshold only applies to public entities, it was still significant to the project manager because as a third-party defendant, it could only be held responsible for, at most, what the Bloomfield Board of Education was responsible for. Stefanik v. Bloomfield Board of Education, Superior Court, Essex County (NJ), Docket No. L-10521-02 (July 2004).

• Successfully defeated an infant petitioner’s application for leave to serve a late Notice of Claim, resulting in dismissal of all claims against property owner New York City Housing Authority and effectively eliminating our client’s exposure. In his thirteen page decision denying petitioner’s application, Justice George D. Salerno referred extensively to our arguments against the motion. Kwanzaa James, et al. v. New York City Housing Authority, et al.; Supreme Court; Bronx County, Index No. 17542/03 (April 2004).

• Obtained summary judgment against the co-defendant general contractor in a case where an infant plaintiff was injured when an allegedly defective front door of a building owned by the New York City Housing Authority, shut on his finger. As a result, the co-defendant’s carrier assumed our client’s defense and indemnity, agreed to reimburse fees and disbursements and thereafter settled with plaintiffs. Michael Hopson et al., v. New York City Housing Authority, et al.; Supreme Court, Queens County, Index No. 1193/01 (November 2003).

• Obtained summary judgment dismissing all claims against the New York City Housing Authority, an out of possession owner of the New York City Police Department facility where the plaintiff police officer was injured, when she tripped and fell over a microphone wire. Our motion for summary judgment was granted, despite plaintiff’s argument based on General Municipal Law § 205-e. Merrigan v. New York City Housing Authority, et al., Supreme Court, New York County, Index No. 119048/99 (October 2003).

• In a case involving collision between a gas truck and plaintiff’s automobile, we established that this was a rare case among motor vehicle accidents where summary judgment in the defendant’s favor is warranted and, on May 6, 2003, the complaint was dismissed.   Francisco J. Mejia, Jr. v. Paraco Gas Corp., Sup. Ct., Suffolk County, Index No. 7691/01.

• We were successful in a 2003 summary judgment motion to dismiss all claims against our client, the project engineer, in a multi-million dollar engineering malpractice and breach of contract claim. Trataros Construction, Inc. v. Town of Orangetown, Sup. Ct. Rockland County, Index No. 3364/96.

• We represented a private school, which was sued by a former student claiming that a teacher sexually abused him.  After conducting exhaustive investigation and after motion practice, we obtained a voluntary discontinuance of all of plaintiff’s claims on January 7, 2003.  At the outset of the litigation, plaintiff’s counsel had demanded $500,000 to settle all claims. Anonymous v. Anonymous, Sup. Ct., New York County, Index No. 104284/01.

• We represented a construction manager in defending four wrongful death and eight personal injury claims in addition to seventy-five property damage claims arising from a devastating fire originating in the apartment of actor Macauley Culkin’s mother.  On January 29, 2002 we obtained dismissal of all claims against our client through extensive motion practice.  Collectively, the remaining defendants settled their claims for an amount in excess of 30 million dollars. Lowder v. Park South, et al and nine companion cases, Sup. Ct., New York County, Index No. 101578/99.

• Obtained summary judgment in a personal injury action where six plaintiffs claimed they suffered injuries when dust particles from a newly renovated venting system settled in a chemistry/hermatology lab at St. Luke’s Roosevelt Hospital.  The Court dismissed plaintiffs’ claims and all cross-claims against our construction manager client finding that our client was not hired to clean the dust and therefore had no duty to plaintiff to clean the dust.  Vanessa Hunter, and infant by her mother and natural guardian, Shelaine Simpson, et al. v. Lehrer McGovern Bovis, Inc., et al; Supreme Court, Bronx County, Index No. 22302/97 (June 2001).

• We were successful in obtaining summary judgment against plaintiff’s Labor Law 200, 240, and 241(6) claims, resulting in dismissal of case against property owner and effectively eliminating client exposure. Lokasi v. Daiichi Real Estate Co., Ltd., Sup. Ct. New York County, Index No. 109827/94 (2001).

• Plaintiff was injured when a piece of steel fell from a construction area while working as Port Authority police officer at LaGuardia Airport. We obtained dismissal. Opiela v. May Industries Corp. & Lehrer McGovern Bovis, Inc., Sup. Ct., N.Y. County, Index No. 11674/00.

• John Gardner, a high school soccer coach, claimed he slipped and fell on ice while walking on the boardwalk at Pier 17 at the South Street Seaport after attending a New Year’s Eve party.  He fractured his right ankle and underwent surgery involving open reduction and internal fixature (plate and screws) to repair his ankle.  The case settled with a $10,000 contribution from our client after we moved for summary judgment. Gardner v. Seaport Marketplace, Inc. et al., N.Y. Sup. Ct., N.Y. Co., Index No. 106403/99.

• Obtained summary judgment in a personal injury action wherein the plaintiff alleged she was suffering from “sick building syndrome” caused by hazardous airborne contaminants in the air of a building managed by our construction manager client.  The Trial Court granted our motion for summary judgment dismissing the case holding that the plaintiff did not commence the action within the three-year Statute of Limitations.  The plaintiff claimed that her cause of action did not accrue until the chronic nature of her injury was diagnosed as being caused by the air quality in her office.  The Court referred extensively to our argument that discovery of the injury means discovery of the physical condition itself, not of both that and the non-biological cause thereof.  The court found that the plaintiff discovered her injuries alleged to be caused by the air quality in the building more than three years before the action was commenced.   Linda Barban v. Schnurmacher Brothers Real Estate, David W. Brown, P.E., and Lehrer/McGovern Construction, Inc; Supreme Court, New York County, Index No. 105944/96 (March 1998).

• Richard Vasquez was severely injured when he cut his left leg with a chainsaw while working on a barge that was docked next to Pier 16 at the South Street Seaport.  The claims made against our client, defendant Seaport Marketplace, Inc., were dismissed after we moved for summary judgment and the case settled during the course of the trial for $415,000.  Vasquez v. South Street Seaport Corp., et al., N.Y. Sup. Ct. Kings Co., Index No. 28102/97.