Goldberg Segalla LLP - What's New at Goldberg Segalla

Goldberg Segalla is pleased to announce its expansion into the Connecticut market with the opening of an office in Hartford, Connecticut. Goldberg Segalla welcomes Charles F. Gfeller, Mark B. Seiger and Robert D. Laurie as partners in the Hartford office. Mr. Gfeller’s practice concentrates on complex civil and commercial litigation, products liability, and risk management. Mr. Seiger’s practice concentrates on complex insurance coverage issues, extra-contractual issues, and litigation. Charlie, Mark and Robert were partners at Edwards Angell Palmer & Dodge LLP. The office is located at 65 Memorial Road, Suite 340, West Hartford, Connecticut 06107-2434. Telephone: 860.231.1307, Fax: 860.231.1307. For more information on Charlie, Mark or Robert please click on their respective names.

Bruce W. Hoover, Christopher J. Belter and Joseph M. Hanna co-authored a comprehensive article on the termination of surety and fidelity bonds. The article, entitled "Breaking the Bank(ruptcy) Code? Terminating Surety and Fidelity Bonds," was published in the Defense Research Institute's March 2008 issue of For the Defense. The article analyzes surety and fidelity rights versus those of debtors when the principal is insolvent or bankrupt. If you would like a copy of this article please contact Bruce at 716.566.5432 or bhoover@goldbergsegalla.com and Chris at 716.566.5412 or cbelter@goldbergsegalla.com.

Scott D. Carlton of the firm's Rochester, New York office, recently obtained a defense verdict in a negligence action tried in front of a jury and Judge Ark in Supreme Court, Monroe County, encaptioned Strassner v. Hargarther. Plaintiff alleged throughout the course of discovery that defendant had negligently injured her when he pulled a cell phone charger cord that they both were holding onto. Plaintiff suffered a dislocated elbow and two fractures which required hardware implantation in her elbow and forearm. However, at trial, plaintiff suggested that defendant's actions bordered on assault, that defendant injured her on purpose, and that the police attempted to get her to press charges against defendant, but she declined. Judge Ark denied defendant's motion to dismiss the action at trial after plaintiff's trial testimony, rejecting defendant's arguments that the only interpretation of plaintiff's testimony was that the injury was intentional. Judge Ark instead allowed the case to go to the jury reasoning that the plaintiff's testimony did not rule out the possibility that defendant negligently injured plaintiff. Plaintiff asked for $500,000 after the close of proof, and the jury returned a 6-0 verdict in favor of defendant. For more information on this case, contact Scott at 585.295.8350 or scarlton @goldbergsegalla.com.

Richard J. Cohen recently presented on Cross Border Coverage Issues at the Canadian Defence Lawyers' National Insurance Coverage Symposium in Toronto. He spoke on the topic of Cross Border Coverage Issues and Conflict of Laws in the United States. For more information on this presentation, please contact Rick at 716.566.5442 or rcohen @goldbergsegalla.com.

John J. Jablonski recently presented at Buffalo’s 1^st e-Discovery Symposium on Friday, January 11, 2008, at the Hilton Garden Inn Buffalo Airport. He spoke on the topic of “Best practices for preservation: From legal holds to forensic collection of electronic evidence.” The Symposium was presented by the Erie Institute of Law, DocuLegal and D4 Digital Forensics and Collections. For more information about this presentation, please contact John Jablonski at 716.566.5469 or jjablonski@goldbergsegalla.com.

Paul D. McCormick of the firm's Buffalo office recently won a New York No-Fault Master Arbitration before the American Arbitration Association on behalf of one of the firm's insurer clients, which had issued a general denial after an IME. After the denial, the claimant and her treating medical providers stopped submitting their lost wage claims and medical bills, respectively, and the claimant eventually filed for arbitration. The lower Arbitrator denied the claim on the basis that the disputed lost wage and medical claims, which has arisen after the general denial, had never been submitted to the carrier for payment, citing an Opinion Letter of the Office of General Counsel of the New York Insurance Department that requires claimants to continue to submit claims even after a carrier's general denial. Since the Insurance Department's interpretation of the No-Fault Law, if not irrational or unreasonable, is to be afforded deference unless it runs counter to the clear wording of the No-Fault Law, the Master Arbitrator affirmed.

For more information, please contact Paul at 716.566.5466 or pmccormick@goldbergsegalla.com.

Matthew S. Lerner, a partner in our Albany office, recently received two honors for his legal weblog, "New York Civil Law." Matthew Bender and LexisNexis Mealey's Insurance publications have chosen Matt's weblog as one of their "Top Blogs" for the Insurance Law Center. "New York Civil Law" was also chosen as New York's top blog as part of poll featured on another widely read New York legal weblog. "New York Civil Law" is one of New York's first Weblogs dedicated to New York civil law, covering New York appellate issues, insurance coverage and defense issues, Labor Law and tort law issues. For more information on Matt's weblog please contact him at 518.935.4230 or mlerner @goldbergsegalla.com.

Daniel W. Gerber of our Buffalo office is featured on the LexisNexis Insurance Law Center for a recent Expert Commentary on the broadening of the duty to defend in the Generali Insurance Company case. You may access the insurance center to view this commentary by visiting http://law.lexisnexis.com/practiceareas/Insurance.

Robert Varga, an associate in our White Plains, New York office, was successful in defending a municipality and its police officers in a 42 U.S.C. Section 1983 and False Arrest Case in the United States District Court for the Southern District of New York. Prior to trial, Mr. Varga succeeded in dismissing plaintiff's other claims for racial discrimination, malicious prosecution and failure to supervise.

Plaintiff was arrested for Disorderly Conduct - Obstruction of Vehicular Traffic, after he was observed by the arresting officer standing on the street and blocking the vehicular path of the officer who was on routine patrol. Plaintiff was arrested and taken to the police station for processing where he was kept about one hour and released.

The jury was required to determine whether the arresting officer had probably cause to arrest plaintiff and, if necessary, whether the officer was entitled to qualified immunity. The jury did not reach the question of qualified immunity because it had unanimously found after about two hours of deliberations that the arresting officer had probable cause to arrest plaintiff for disorderly conduct.

For additional information about this case, please contact Robert at 914.798.5460 or rvarga@goldbergsegalla.com.

The Federation of Corporate Counsel has selected an article Latha Ragahvan, of the firm's Albany office, wrote entitled "Strip Search Exposure for the Public Entity," as their featured article of the month for December, 2007. The article was presented at the 2007 FDCC Annual Meeting. For a copy of this article or for further information on this topic, please contact Latha at 518.935.4250 or lraghavan @goldbergsegalla.com.

Julie P. Apter, a partner in the firm's Buffalo office, successfully defended a municipality in a complicated discrimination claim.

The United States District Court for the Western District of New York issued a 28-page decision granting summary judgment on behalf of the County of Chautauqua. The County was sued by a plaintiff who was an employee of WCA Hospital. She instituted a Federal Court claim against the County seeking damages for alleged violation of her civil rights under 42 U.S.C. 1983 and Title VII of the Civil Rights Act.

It was alleged that the plaintiff, while employed as a nurse at the hospital, attempted to seek custody over a child who was committed to the psychiatric ward of the hospital, and who was also a ward of the County. The County fought the plaintiff's attempts at custody for the reason that the treating medical physicians recommended that the child be moved to a long term residential treatment facility out of state.

Plaintiff, in order to prove to the Court that she would be a fit mother, changed her work hours, but eventually was injured on the job and quit. Plaintiff alleged that her employer "purposely" changed her schedule due to complaints by the County regarding her interference with the County's attempt to take care of the child.

It should be noted that the plaintiff was not biologically related to this child, and the natural mother of the child was still in the picture. After lengthy discovery and an analysis of all issues, the Court held that the County did not interfere with the plaintiff's work position and did not violate the plaintiff's occupational liberty. The Court also found that the plaintiff did not have a protected liberty interest to pursue this claim since she was not biologically related to the child. Lastly, the Court found that the plaintiff's claims of civil rights violations due to her sexual orientation (plaintiff originally argued that the County slandered her to her employer based upon her sexual preferences) was not based upon any evidence and, further, the Federal Law does not recognize a claim of sexual orientation discrimination.

The decision thoroughly analyzed a government's responsibility for 1983 liability and whether liability will attach to individual employees. The Court found that the plaintiff failed to establish any valid 1983 and Title VII claims to warrant a finding in favor of the plaintiff. The Court also dismissed all claims against the individually-named defendants based upon Monell v. County.

To discuss the issues raised in this decision, please contact Julie at 716.566.5458 or japter @goldbergsegalla.com

In a case handled by Jeffrey J. Signor, an associate in our Buffalo office, the Fourth Department reversed a lower court decision which denied our client summary judgment.

The firm’s client, Walgreen Eastern Company, Inc. (“Walgreens”), was sued based upon plaintiff’s theory that Walgreens was responsible for her slip and fall on ice during a snowstorm. The lower court found a question of fact, based in upon plaintiff’s expert report which opined that the ice pre-existed the storm.

The Fourth Department reversed, dismissing plaintiff’s claim, finding plaintiff’s expert's opinions were “without foundation”, based upon “mere speculation” and “those opinions therefore insufficient to defeat [Walgreen’s] motion”. Our firm did not exactly create new law, but the Wilson decision is solid precedent providing defendant landowners additional ammunition against the thousands of weather related falls across the state, particularly in Western New York. See Wilson v. Walgreen’s Drug Store, et. al., 2007 WL 1953848 (July 6, 2007).

For additional information about this case, please contact Jeff at 716.566.5430 or jsignor @goldbergsegalla.com

Paul S. Devine, a partner in the firm's Long Island, New York office was successful in defending the Long Island Railroad in a catastrophic injury case before Judge Markey in Supreme Court, Queens County.

Plaintiff, a 16 year old deaf high school student was struck and injured by a ten-wheel dump truck towing a 30-foot trailer and skid steer while she crossed the Van Wyck Service Road in Jamaica Queens. The case presented some issues involving whether the plaintiff was entitled to a full trial based on allegations of amnesia from a closed head injury. The Court denied plaintiff's application for a full trial and also denied plaintiff's application for a reduced burden of persuasion under "Noseworthy."

Additionally, plaintiff had retained an accident reconstruction expert and sought to use computer animation created by the expert. The Court permitted the expert to testify regarding accident reconstruction issues, but denied the admissibility of the animation on the basis that it did not fairly represent the accident scenario as established by witness testimony.

Infant plaintiff suffered multiple injuries including lung contusion, lesion of the mid pole of the right kidney, rectal bleeding, and numerous complex pelvic fractures involving the sacrum, anterior acetabulum, inferior pubic ramus. The pelvic fractures were reduced with insertion of internal and external fixators. Subsequently, plaintiff suffered a deep vein thrombosis that required a second hospitalization.

Due to plaintiff's hearing disability, she required the use of a sign language interpreter who was present throughout the trial. The settlement demand was $2M.After a six-day trial, the jury concluded that the defendant was not negligent.

If you would like additional information about this case, please contact Paul at 516.281.9850 or pdevine @goldbergsegalla.com

Sandra J. Sabourin, Special Counsel in our Syracuse office, won a summary judgment motion dismissing a personal injury suit against a large shopping mall. The case involved a slip and fall on a patch of black ice in the parking lot of the mall. Plaintiff alleged that defendant had constructive notice of the complained of condition and that defendants caused or created the complained of condition due to an improper design and/or faulty drainage. Specifically, plaintiff claimed that the patch of black ice was caused by melting snow or water coming from a higher elevation.

The success of this motion hinged on a careful examination of the deposition testimony of plaintiff and her witness and their contradictory affidavits submitted in opposition to defendant's motion for summary judgment. The Court found that plaintiff's allegation of a created condition was merely speculation, and that defendants established prima facie entitlement to summary judgment dismissing plaintiff's complaint on the grounds that defendants had no prior notice of the existence of the black ice upon which the plaintiff claimed to have fallen.

For more information on this case, please contact Sandy at 315.413.5420 or ssabourin @goldbergsegalla.com

David S. Osterman is the editor and contributor to Medical Device Litigation Update, the firm's newest newsletter. Medical Device Litigation Update focuses on cases and issues unique to the defense of medical device manufacturers in all areas of civil litigation with a focus on New York, New Jersey and Pennsylvania. If you would like to receive a copy of this newsletter, please subscribe using our firm's webpage in this section.

For continuous updates and discussions on medical device law and trends please contact Michael D. Shalhoub, a partner in the firm's White Plains office, for information on his Weblog dedicated to medical device litigation at 914.798.5471 or mshalhoub @goldbergsegalla.com.

Paul C. Steck, an associate in the firm's Buffalo office, argued a motion for summary judgment in a case where we represented the snow plow contractor hired to clear the lot where the plaintiff fell. Although our client had a contract to plow snow in the lot, and indemnify the property owner, Paul convinced Judge Michalek to dismiss the complaint on the grounds that the client was not contracted to apply salt without express approval from the property owner, and that it was ice upon which the plaintiff fell. If you would like more information on this case, please contact Paul at 716.566.5497 or psteck @goldbergsegalla.com

Brian W. McElhenny, a partner in the firm's Long Island office, secured a defense verdict for Dito Construction Inc. in a premises-based Labor Law suit in Nassau County Supreme Court.

Plaintiff, a 59-year-old factory worker alleged that she fell on construction debris in a pathway at her place of employment. Dito Construction was hired to renovate the premises and retained two subcontractors for this purpose. The defense argued that Dito did not create the debris and that said debris was the result of plaintiff's employer's work conditions.

Plaintiff sustained an open, displaced comminuted supracondylar fracture of the distal humerus, which injury required surgery. Plaintiff declined the further surgeries recommended by her physician for hardware removal and ulnar nerve transposition. Plaintiff never returned to work and her workers' compensation lien was in excess of $61,000.

The trial included six of plaintiff's co-workers and a total of nine witnesses. The jury returned a unanimous verdict that Dito Construction was not negligent.

For more information about this action, please contact Brian at 516.281.9840 or bmcelhenny @goldbergsegalla.com

Julie P. Apter, a partner in the firm's Buffalo office, successfully defended a School District in an employment hearing stemming from the School's refusal to hire a woman for a full time janitorial position.

The woman filed a claim with the New York State Division of Human Rights, alleging age discrimination. She had previously worked for the school on a part-time basis. The State conducted a lengthy hearing, obtaining evidence from the claimant and numerous school personnel regarding their knowledge of the claimant's work history The School was able to convince the State Hearing Officer of the school's non-discriminatory hiring procedures, and the fact that a more qualified candidate was suitable for the job.

The Hearing Officer dismissed the claim outright, in favor of the District, and advised the claimant of her rights under the employment law relative to any appeals of said decision.

For more information, please contact Julie at 716.566.5458 or japter @goldbergsegalla.com