Appellate

• Won a decision allowing the public policy exception to arbitration on behalf of a city in New York State. The court found that the city cannot be held at fault for complying with Gov. Cuomo’s March 2020 executive order sending all non-essential workers home in response to COVID-19, and that the firefighters union cannot arbitrate whether its essential workers are entitled to equal time off or monetary compensation to match what non-essential city workers received at that time.
• Won dismissal of plaintiff’s lawsuit against foreign manufacturer of washing machine hose in Ohio state court on ground that the exercise of jurisdiction over this foreign corporation would violate the corporation’s constitutional due process rights and would not satisfy the requirements of Ohio’s long-arm statute.
• Won reversal of $5.2 million jury verdict against our client nursing home in a New York Labor Law case upon grounds that the trial court erred in refusing the defendant client’s request for an expanded jury instruction on sole proximate cause; case settled for $1.7 million.
• Won dismissal of plaintiff’s complaint on statute of limitations grounds where plaintiff’s erroneous e-filing on the last day of limitations period was not corrected in accordance with the prescribed remedy authorized by Ohio’s new e-filing rules.
• After $1.8 million adverse verdict against client insured, won reduction of $572,000 based on arguments in post-trial motion that jury’s award for future pain and suffering was excessive and award for future pain management should be vacated.
• Won affirmance of summary judgment ruling holding that the plaintiff was the sole proximate cause of his accident as a matter of law for failing to make any effort to remove a pile of sheetrock that was obstructing the location of his ladder, and failing to raise a triable issue as to whether his coworker was readily available to assist in moving the sheetrock.
• Won summary judgment dismissal of infant plaintiff’s lawsuit against mid-level distributor of sulfuric acid drain opener on the grounds that the distributor owed no common-law duty to police the conduct of retail sales to purchasers; the alleged breach by the distributor of its agreement with the manufacturer to limit sales to professionals did not create or exacerbate a dangerous condition; and the injury was too remote to be a proximate cause of the infant’s injury where the mother placed the unsecured product in the family’s bathroom, where it was accessible to the child.
• Won affirmance of order granting summary dismissal holding that because worker admitted during his deposition that he was engaged in routine maintenance when his accident occurred, Labor Law § 240(1) did not apply.
• Obtained reversal of an order that denied summary judgment to department store owner. Plaintiff claimed that she was injured when a protruding piece of metal on an escalator caught her pocketbook and dragged her backwards, causing injury. Photographs taken minutes after the accident revealed that the escalator was in pristine condition.
• Obtained reversal of an order that had granted summary judgment on liability to plaintiff in a rear-end motor vehicle collision. Although plaintiffs are frequently granted summary judgment in such cases, we persuasively argued that our driver was faced with an emergency not of his own making, thereby providing a reasonable, non-negligent explanation for the accident.
• In a post-trial appeal on behalf of a major Western New York hospital, obtained affirmance of an order denying plaintiffs’ motion to set aside a defense verdict. Plaintiffs claimed that the hospital lab’s error caused them to terminate a pregnancy. The jury found that although the hospital was negligent, it did not cause plaintiffs’ decision.
• Obtained summary judgment for a landlord in a high profile case where its tenant-actress was murdered by a contractor’s employee who was also an undocumented immigrant. The order was affirmed on appeal, the appellate court affirming the trial court’s finding that the landlord could not be responsible for an independent contractor’s employee’s actions.
• In another high profile case, obtained reversal of an order denying a motion to dismiss general negligence claims against a psychiatrist where a former patient abruptly left an outpatient facility, traveled to his mother’s house, and murdered his neighbor while high on cocaine.
• In a legal malpractice action, obtained reversal of a trial court’s order denying summary judgment, where plaintiff could not demonstrate that he would have succeeded in the underlying action. Plaintiff had secured a high interest rate mortgage for his home but defaulted on the note, claiming he had rescinded the mortgage within 72 hours. He sued his attorneys when they could not prevent foreclosure. Plaintiff was never able to obtain proof of the rescission, which persuaded the appellate court to dismiss the case.
• Won dismissal of plaintiff homeowner’s 2018 subrogation lawsuit against the general contractor whose subcontractor allegedly negligently installed a fireplace when the home was built in 2003. The appellate court upheld the trial court’s dismissal on statute of limitations grounds, finding where an action is based on defective construction, the accrual date for the statute of limitations is the completion of performance because all liability for defective construction has its genesis in the contractual relationship of the parties, and the plaintiff was no stranger to the contract.
• In an action tried by Goldberg Segalla trial and appellate counsel, and appeal briefed and argued by excess counsel, the appellate court unanimously affirmed the jury verdict for the defendants in a $10 million labor law action involving massive injuries at a construction site, determining that our clients had no authority to supervise or control the plaintiff’s work and, therefore, were not negligent.

We regularly represent leading organizations and businesses as amici in the New York Court of Appeals and the Supreme Court of New Jersey, as well as other federal and state appellate courts. Given our appellate attorneys’ depth of knowledge, we can write amicus curiae briefs on a wide range of issues. We have also been extremely successful in securing support from amici to support our clients’ appeals and raise key arguments on important legal and public policy considerations.

Appellate practice is not only a matter of scholarly research, dispassionate analysis, polished writing, and pseudo-Socratic dialogues with justices. Our appellate attorneys are also ready to descend into the trenches of a trial and assist with motion practice—drafting stays and bonds, and striking an appendix or brief that includes improper material—all things that could be critical to the success or failure of an appeal. Our team can intervene early to secure a stay and prevent an appeal from becoming moot.

Post-trial motions are also an important part of the group’s practice. Whether it’s a motion to set aside a verdict, a question of sustainable damages, or another concern, post-trial motions are often the first step before an appeal. Our appellate team’s superior research, writing, and analytical skills shine here, too. Our constant tracking of court decisions—combined with our robust writing and analytical skills—provides a solid foundation for successful post-trial motions. In addition, our appellate team can either assist with or handle collateral source hearing; where appropriate, we can provide a CPLR 50-B judgment analysis and litigate those issues. Whether you need our help following an adverse verdict or we’ve been litigating the case since day one, our appellate team has handled dozens of post-trial motions and is adept at digesting the trial record to make effective, timely arguments in your favor.

Because of Goldberg Segalla’s collaborative culture, our work begins long before an appeal—and savvy use of the appellate team from the first stages of litigation could obviate an appeal altogether, helping to secure unshakeable success at trial. When the stakes are high, bringing appellate counsel on board early is often more cost-efficient than waiting until the first signs of difficulty.

The strength of a party’s case at trial depends on how the attorneys have framed the issues and litigated the matter up to that point. Because of this, there is palpable value to an appellate attorney collaborating with the litigation team at the early stages of a lawsuit, especially when the lawsuit has the potential for a large verdict or concerns complex legal issues. While a trial attorney’s pre-trial strategizing will involve pre-suit investigation and laying the groundwork for closing arguments, an appellate attorney’s focus during trial preparation will be on framing legal issues in light of the applicable statutory and common law and on preserving those issues in anticipation of an appeal—first to an intermediate appellate court and possibly to a court of last resort. Neither perspective is more important to setting up a successful trial; but trial and appellate attorneys working together, layering their very different perspectives, can make all the difference in the early stages of litigation.

In other instances, the appellate attorney might take an even more expansive global view of the lawsuit because it impacts related litigation throughout the state, across several states, or nationwide—tapping into the juridical-historical currents that shape industries and the law. The appellate attorney can oversee a client’s initiative in influencing the common law on certain issues across a number of jurisdictions. Appellate attorneys are especially apt at doing so because a large part of their skill set is identifying trends and changes in the common law and finding commonalities or differences to provide support for their clients’ position. Monitoring statewide and nationwide trends while keeping our clients’ objectives in sharp focus, our appellate attorneys can make sure that arguments across all jurisdictions are uniform and effectively framing issues to support the client’s broader initiatives.

Trial lawyers and appellate lawyers see the same case from different perspectives. Where the trial lawyer is focused on investigating, collecting evidence, and shaping a compelling narrative for a judge and jury, an appellate lawyer asks how legal issues in the case can be preserved and raised later in an appellate court. The presence of an appellate attorney at trial alone can help, in ways subtle but profound. As part of a trial team, an appellate attorney gently reminds a judge that the defense is prepared to go the distance, preserving every possible issue for appeal.

But an appellate attorney is never present at trial just for “show.” Our clients often ask our appellate attorneys to monitor trials and present a more dispassionate view of the proceedings: How are the jurors reacting to the evidence? What kinds of rulings has the trial judge made? How is the court receiving the evidence? What is the overall impression? Reporting on these issues not only provides clients with a different perspective, but also allows the trial lawyer to concentrate on one thing: trying the case.

If it’s more than just monitoring a client wants, our appellate attorneys can leverage their distinct skill sets and work seamlessly with trial teams, both before and during trial. Preparing motions in limine, trial memoranda, and other written submissions are just some of the ways appellate attorneys can utilize their skills while easing a trial lawyer’s burden. We also frequently serve primary and excess carriers and other clients to monitor full liability and damages trials, helping to craft arguments and consulting on objections to preserve the record—while striving to work fluently and constructively with experienced trial counsel, never stepping on toes and sharing the common objective of protecting the clients’ rights.

At the same time, our attorneys watch cases nationwide and inform clients and trial attorneys of important developments—during trials to make sure our arguments are based on the latest case law, but also in times of relative calm, seven days a week and 365 days a year, to keep our clients cognizant of trends that could affect their business.