Partner Kevin Pinter has been named by Super Lawyers as one of the Elite New York Metro Civil Litigation Defense Attorneys for 2014-2020.
The Appellate Division, Second Department, recently affirmed the Supreme Court’s Decision to uphold a favorable ruling on a summary judgment motion that Angela A. Lainhart, Esq., of Nicoletti, Gonson Spinner & Owen LLP obtained in connection with a slip and fall accident on ice, entitled Max Gershfeld et al. v. Marine Park Funeral Home, Inc., Index No.: 36467/04, Supreme Court, Kings County.
The matter arose from an alleged incident that occurred on January 19, 2004 in front of a funeral home in Brooklyn, New York. It was alleged that the plaintiff had slipped on an invisible sheet of ice on an exterior rubber mat in front of the premises. Plaintiff alleged that he sustained injuries consisting of a finger fracture, cervical disc herniations and bulging, cervical radiculopathy and an aggravation of a lumbar spine condition. The plaintiff claimed that the injuries necessitated him to undergo a cervical disc fusion surgery and he claimed a need for future fusion surgery of the lumbar spine.
Our firm moved for summary judgment, on the ground that there was no evidence establishing that the defendant either created the condition or had actual or constructive notice of the condition, citing the snow/ice clearing measures undertaken by the funeral home, as well as citing the case law on “black ice” cases. The Supreme Court, Judge Martin, granted an Order of dismissal dated January 2, 2008 and the plaintiffs appealed.
The Appellate Division upheld the Supreme Court’s ruling and held that our client had established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defect or have actual or constructive notice of the defect. The Court also ruled that the plaintiffs’ contention that the icy condition was a result of the funeral home’s negligent snow removal efforts was speculative. Additionally, the Court cited cases holding that a general awareness that a hazardous condition may be present is insufficient to establish notice.
Josephine Vittorio v. U-Haul, New York App. Div., Second Dep’t, Docket # 2009-2412
In October 2008, in the New York State Supreme Court, County of Dutchess, Partner Kevin Pinter engaged in a five-day jury trial defending U-Haul in an action stemming from a trip and fall incident at the local U-Haul facility in Poughkeepsie, New York. At trial, we argued that the condition in question (a missing piece of floor tile) created no more than a trivial defect, which did not constitute a dangerous condition to members of the general public. The jury returned a unanimous verdict in U-Haul’s favor on October 24, 2008.
Plaintiff appealed the trial verdict, asserting that both the Court’s jury charge and verdict sheet were objectionable, and additionally, that the verdict was against the weight of the credible evidence presented at trial. We asserted (in a brief prepared by associate Pauline Glaser) that the propriety of the jury charge and verdict sheet was not preserved for appellate review, due to trial counsel’s failure to object to either during the trial. We further argued that the jury’s finding that the flooring within the subject U-Haul location was in reasonably safe condition on the date in question was amply supported by the evidence adduced at trial.
On October 7, 2010, Mr. Pinter argued the appeal before the Appellate Division, Second Department, and on October 26, 2010, the panel issued its decision, unanimously affirming the judgment in U-Haul’s favor.
On November 6, 2012 a reinsurance arbitration panel awarded our client recovery, on summary judgment, of outstanding balances due on over 20 lead paint claims and required the excess of loss reinsurer to follow our client’s single occurrence presentation for current and future claims when the exposure to lead paint spans more than one policy. Our client has approximately 50 open lead paint claims with this reinsurer. The minor claimant’s exposure to lead paint usually spanned multiple policies written by our client and the reinsurer contended that our client was required to take a separate retention under the treaty for each policy. Although the panel only resolved disputes over lead paint claims between our client and one of its excess of loss reinsurers, the same dispute over similar policy wording exists for many companies with New York lead paint claims.
In June 2018, in New York State Supreme Court, Bronx County, Partners Kevin Pinter & Joe Gulino represented defendants, U-Haul Co. of New York & Vermont, Inc. (“UHNY”) and Tori Realty (“Tori”), at trial in an action based on a trip and fall over an alleged dangerous condition on a sidewalk abutting the Bronx property owned by Tori and leased by UHNY.
Plaintiff, 51 years of age at the time of trial, claimed that on June 19, 2013 while walking on the sidewalk in front of the subject premises in Bronx County, he was caused to trip and fall over a raised metal plate that had been placed on the sidewalk, due to its raised “lip” which protruded at an alleged height of 2-3 inches above the surface of the sidewalk. Plaintiff claimed the plate was unreasonably dangerous and constituted a tripping hazard of which both UHNY and Tori were aware, having existed for approximately 12 years prior to plaintiff’s fall.
Plaintiff allegedly suffered a significant right shoulder injury, necessitating 3 separate right shoulder surgeries, in July 2013, January 2015 and November 2015. Plaintiff contended that the first shoulder surgery was directly related to injuries sustained in the fall, and that the second and third were necessary due to a subsequent incident at his home in October 2013, when plaintiff re-injured the shoulder while jumping back from his barbeque grill’s flames, tearing some of the anchors that had been surgically implanted during the first surgery. Plaintiff’s experts further contended that plaintiff would likely require future surgeries and that plaintiff faced a life of significant medical expenses in the years ahead, all due to the trip and fall on the Bronx sidewalk.
Defendants claimed that the metal plate was open and obvious, and that given the totality of the circumstances, including that it was placed right up against the building line, leaving plenty of clear sidewalk on which to walk, the plate simply did not constitute an unreasonably dangerous condition. Defendants also claimed that plaintiff had no reason to walk directly over the plate, and through cell phone records obtained and a timeline of events constructed through plaintiff’s own testimony, that plaintiff was likely distracted by his own cellphone use at the time of the accident – a claim plaintiff vehemently denied.
With respect to damages, defendants conceded that the first shoulder surgery was causally related to the subject trip and fall but contended that the second and third surgeries were the direct result of the barbeque incident, which involved a new injury, that was in no way related to the shoulder injury sustained in the sidewalk trip and fall. Defendants further argued that plaintiff had made an excellent recovery and would not need any significant future medical care as a result of the subject trip and fall.
Mr. Pinter began the trial on June 4, 2018 and continued through the end of the day on June 7th , when an unexpected medical issue necessitated Mr. Gulino stepping in and continuing the trial through the close of the evidence on June 22nd. On June 26th Mr. Pinter was cleared to resume participation in the trial, at which time closing arguments were delivered, and the jury began its deliberations. Plaintiff’s counsel requested $2.1 million in his summation, while the defense suggested a “nice round number” of $0. After a little over one hour of deliberations, the jury returned with a defense verdict, finding that the subject metal plate simply did not constitute a dangerous condition as the defense had argued since the outset. The verdict was a hard-fought win earned under difficult circumstances and reflected a truly collaborative effort by Mr. Gulino and Mr. Pinter on behalf of our clients.
In September of 2008, in New York State Supreme Court, Richmond County, Partner Joseph Gulino engaged in a nine day trial against a team of two, sometimes three, plaintiff’s attorneys while defending a nationally known auto auction corporation. Plaintiff, a used car dealer alleged he sustained grievous, life changing injuries as a result of exposure to an electrified security fence while on the auctions company’s property. Plaintiff claimed he was thrown 20-30 feet and admitted to the hospital for electrical injuries. Besides his claim for physical injuries which included cardiac, neurological and psychiatric injuries, plaintiff sued for past and future economic losses totaling in the millions.
During the course of discovery and investigation we learned plaintiff suffered congenital problems with his heart and was on psychiatric medication at the time of the alleged incident. As to his claim for loss income, it was revealed at trial that his business had prospered since the incident; so much so, he was cited in the local newspaper as a very successful entrepreneur. Our ability to attack Plaintiff’s credibility resulted in the jury returning a defense verdict.
In February, 2010 in the United States District Court for the Southern District of New York, Partner Joe Gulino engaged in a ten day trial defending James Stead against a civil rights and malicious prosecution claim.
On July 28, 2004, plaintiff Thomas Pacicca, 58, unemployed, was arrested by White Plains police officer Brian Robbins, and charged with criminal mischief, criminal tampering and stalking. The arrest resulted from Pacicca’s across-the–street neighbor, retired White Plains police captain Stead, contacting the police with video evidence of Pacicca vandalizing adjoining public property which he cared for. Due to the nature of the charge, Stead received an unsolicited Order of Protection from the Court.In December 23, 2004, Stead presented video evidence to the police department of Pacicca cursing at him, while he went out at night to retrieve his mail. Pacicca was arrested by Police Officer LaValle Larrier and Detective Andrew Black on the charge of criminal contempt for violating the Order of Protection. While the charges were still pending, Pacicca was again arrested for violating Order of Protection Pacicca in August of 2005, after Stead claimed Pacicca had his son play loud rap music on his front deck to disturb an outdoor gathering he was having.
All the charges against Pacicca were dismissed after a trial in front of Judge Frias of the White Plains City Court in February of 2006.
Pacicca sued Stead, Robbins, Larrier, Black and the City of White Plain alleging they acted in concert to violate his civil rights pursuant to USCA 1983 on the arrests and unlawful electronic surveillance. He also sued him for malicious prosecution. As to the Police and the City of White Plains, Robbins was charged with USCA 1983 for the July 28, 2004 arrest, while Larrier and Black were charged with the same for the December 23, 2004 arrest. All the officers were also sued for New York State malicious prosecution, while the City of White Plains was sued under the theory of vicarious liability.
Prior to trial, we successfully moved to dismiss the 1983 and unlawful electronic surveillance claims against our client. Stead went to trial for all three arrests for malicious prosecution under New York State law.
At the close of Pacicca’s case in chief, Judge Cathy Seibel dismissed the claims against Larrier and Black. Stead and Robbins’ cases went to the jury.
Pacicca sought damages for expenses defending the criminal charges, emotional distress, psychological injuries and damage to the relationship with his children, as a result of the arrests made against him. His attorney asked the jury to award him $285,000.
We claimed Pacicca’s family life was in shambles before the arrests, and that he set out to purposely intimidate and harass Stead and his wife, due to their continued friendship with Pacicca’s former wife, prior to her death from cancer. We were able to prove that: Pacicca repeatedly used County and City property without paying for it, had previous orders of protection against him filed by his former wife, and that his daughter while a teenager, had written to a family court judge complaining about his abusive behavior and alcohol use.
The jury rendered a unanimous defense verdict.
In October 2008, in the New York State Supreme Court, County of Dutchess, Partner Kevin Pinter engaged in a five day jury trial defending U-Haul in an action stemming from a trip and fall incident at the local U-Haul facility located in Poughkeepsie, New York.
Plaintiff, a forty-six year old homecare attendant, alleged that she tripped and fell upon leaving the U-Haul facility when her shoe became caught in a “hole” created by a missing piece of floor tile located adjacent to the raised door saddle, directly in front of the door providing ingress and egress to the facility. As a result, plaintiff claimed that she was propelled out of the facility and landed on the pavement outside, sustaining severe injuries to her left foot, legs, hips, shoulders and face. Ultimately, part of plaintiff’s left foot, including her entire left small toe, was amputated at Vassar Brothers Hospital. Plaintiff alleged that her left foot was, consequently, left discolored and misshapen, her gait was unnatural and she had poor balance with accompanying severe pain and suffering. Plaintiff claimed to have lost substantial periods of time from her usual vocation as a result of the accident.
Plaintiff passed away approximately five (5) years after the incident due to, we contended, unrelated complications arising from her untreated diabetes. Within the applicable two year statute of limitations, Plaintiff’s counsel attempted to amend the complaint to include a cause of action for wrongful death, a motion which we successfully opposed, resulting in the court’s decision (issued two days prior to the commencement of trial) disallowing the amendment.
At trial, we presented a certified safety expert who had personally examined, measured and photographed the subject flooring (which still contained the missing piece of floor tile at the time of trial), and who testified that the missing piece of tile created no more than a trivial defect, which did not constitute a dangerous condition to members of the general public. The jury returned a unanimous verdict in U-Haul’s favor on October 24, 2008.
In October 2009, in New York State Supreme Court, County of Nassau, Partner Kevin Pinter engaged in a nine day jury trial defending KeySpan in an action arising out of alleged negligent tree-trimming services on plaintiffs’ property in Old Brookville, New York, located on Long Island’s Gold Coast.
Plaintiffs had purchased the property in 1993, which was part of a residential development originally built in 1959. The plaintiffs’ primary residence was situated on the property, which in addition to being beautifully landscaped, had power lines running along the easternmost boundary of the property line. Parallel to the power lines were a series of approximately 31 Norway Spruce and White Pine trees, which had been planted in 1959, when the development was originally constructed. LILCO held the original easement applicable to the property, which allowed it (and its successors and assigns, including KeySpan) unrestricted access to its power lines, and specifically, the right to periodically trim the trees to prevent complications arising from contact with the lines.
In the Spring or Summer of 2003, plaintiffs claim they returned from the family vacation home in Cape May, N.J. to discover that the subject trees had been “butchered” without their consent. Plaintiffs retained a horticulture “expert” who testified that due to the unnecessary excessive cutting of the trees’ branches, the subject trees were dying, and additionally that all such trees would eventually fall due to the actions of the tree trimmers. Plaintiff Angela Granata testified that the trees were “ticking time bombs”, and that she feared the trees would cause serious injury or death to her family, friends or neighbors. As a result, plaintiff’s expert opined that all remaining 29 trees (two had fallen in a winter storm in February 2008) needed to be removed and replaced, at an approximate cost of $500,000.
KeySpan contended that as a result of the easement, it had an absolute right to perform tree trimming services around its power lines, with or without the plaintiffs’ consent, and further, that its contractor performed the tree-trimming services in a reasonable manner, causing no damage to the subject trees. Defendants’ arboriculture expert testified that the tree-trimming services were performed reasonably, and that no damage to the trees occurred as a result thereof; further, defendants’ expert testified that removal and replacement of the trees was completely unnecessary.
After a lengthy trial, which, despite the pre-trial exchange of dozens of photographs of the subject trees among counsel, included a “field trip” to the plaintiffs’ Old Brookville estate so that the jury could personally walk the property and view the subject trees, the jury deliberated for 50 minutes prior to returning a defense verdict for KeySpan and its contractor.
In December 2009, in the New Jersey State Superior Court, County of Passaic, Partner Kevin Pinter and associate Angela Lainhart engaged in a five day jury trial defending U-Haul in an action stemming from a slip and fall incident outside of a U-Haul facility located in Paterson, New Jersey.
Plaintiff, a fifty-seven year old unemployed Paterson resident, alleged that he slipped and fell on March 2, 2007 at approximately 9:30 p.m., on snow and ice located in the parking lot area of the U-Haul facility located immediately next door to plaintiff’s residence, on Market Street in Paterson, New Jersey. It is undisputed that the U-Haul facility was closed at the time of the incident. According to plaintiff, his son, Thomas Toney, had dropped him off at home that evening after the pair had attended a New Jersey Devils hockey game. Plaintiff testified that his son dropped him off by pulling into a portion of the U-Haul parking lot located 20 feet away from his apartment driveway, so that plaintiff had to walk on U-Haul property in order to access his own driveway, located next door. Toney, however, testified that he dropped his father off in the private driveway for his father’s apartment, and admitted on cross that his vehicle was completely on his father’s property immediately preceding the accident. When confronted with enlarged photographs of the scene and a tape measure on cross at trial, plaintiff claimed that he wasn’t so good with measurements, and estimated that his son had dropped him off maybe 5 feet away from his own driveway.
As a result of the fall, plaintiff sustained a bimalleolar ankle fracture, requiring open reduction and internal fixation, and a prolonged course of physical therapy. Plaintiff’s orthopedic expert testified that plaintiff would likely need ankle fusion surgery in the future, while our expert vehemently disputed this claim.
Due to various pre-trial motions in limine, we were precluded from mentioning plaintiff’s heroin addiction, methadone use at the time of the accident, and the specifics of his criminal history, including several felony convictions for sale of narcotics in a school zone. The trial Judge allowed us to bring out only that plaintiff had been “convicted of a crime in the third degree”, without educating the jury concerning the severity or specifics of such a conviction.
During the initial cross-examination of plaintiff, we had the plaintiff confirm his unemployed status, his lack of any source of income, and inquired as to whether he was currently being sued for non-payment of child support obligations by an ex-wife. Upon plaintiff’s application, and although plaintiff’s counsel had painted plaintiff as a former military man who had received an Honorary Discharge from the Marines, the trial Judge granted a mistrial, finding that the jury had been irreparably prejudiced against the plaintiff due to the child support question.
During the second trial, plaintiff’s counsel again was permitted to bring out his client’s military service, while we were limited to the one inquiry concerning plaintiff’s conviction of a crime in the third degree. After a full trial and deliberating for 25 minutes, the jury returned a defense verdict on December 15, 2009.
In November 2011, in New Hampshire State Superior Court, County of Grafton, Partner Kevin Pinter defended U-Haul Co. of New Hampshire (“UHNH”) at trial in an action stemming from a “slip and fall” on the property of a U-Haul facility located in Tilton, New Hampshire.
Plaintiff, a local fifty-three year old automobile glass installer alleged that he slipped and fell on December 2, 2008 at approximately 8:30 a.m., on ice near a dumpster located toward the rear of the Tilton U-Haul facility. Plaintiff’s employer, Safelite Auto Glass, had rented a storage unit at the facility, and the Safelite employees were directed to retrieve the windshields they needed for a given day’s installations from the facility first thing each morning. On the morning of the accident, plaintiff loaded up the windshields he needed from the storage unit into his company van, and was walking to empty his trash pail into the U-Haul dumpster at approximately 8:30 a.m., when the accident occurred. Plaintiff testified that the ice he slipped on was a thin sheet of “black ice” that he did not see before the accident. At trial, plaintiff testified that after the accident, he noticed that the ice covered an area approximately 30′ wide, despite having testified that he had “no clue” of the size of the ice patch during his deposition. Plaintiff’s co-worker, who was present on the morning of the accident, likewise testified that the subject ice was not only 30′ wide, but stretched 50′ in length as well.
According to plaintiff, while he was on the ground after the fall, a U-Haul General Manager from the facility came to his aid, called an ambulance, and stated that the facility had an ongoing water accumulation problem in the area of plaintiff’s fall. The General Manager testified at trial that he made no such statement, but that he had prior to the accident, on his own initiative, dug a trench on the property to divert flowing water from the property’s walkways, which generally occurred during the aftermath of rain or snowstorms. Plaintiff introduced into evidence uncertified weather records submitted by a “weather observer” from an amateur weather station located one mile from the Tilton facility, which contained daily maximum and minimum temperature readings, but no hourly recordings. UHNH submitted certified weather records from 5 surrounding NOAA weather stations, as well as the testimony of an expert meteorologist, that although no certified NOAA weather station existed in Tilton, NH, he was able to extrapolate the likely hourly temperatures for the site of the accident from the certified records he had obtained. As a result, UHNH’s weather expert testified that the temperature in Tilton fluctuated between 36 and 38 degrees Fahrenheit for at least 5 consecutive hours prior to the accident, and thus that no ice was likely present at the accident site at 8:30 a.m.
As a result of the fall, plaintiff sustained a complete rupture of the quadriceps tendon, requiring surgery, and extensive physical therapy. Plaintiff’s treating orthopedic surgeon testified that plaintiff made a good recovery after the surgery, but that he was out of work completely for 6 months following the accident, and that he did not return to his full work duties until 13 months after the accident.
After a full trial and jury deliberations of approximately 15 minutes, the jury returned a defense verdict on November 3, 2011.
In April 2013, in New York State Supreme Court, New York County, Partner, Kevin Pinter & Associate, Christine Vetter defended U-Haul Co. of New York & Vermont, Inc. (“UHNY&VT”) at trial in an action stemming from a customer’s fall from a ladder at the Chelsea, NY U-Haul facility located on W. 23rd ST., in Manhattan, NY.
Plaintiff, a 47 year old customer of the Chelsea U-Haul storage facility since 2000, alleged that on October 25, 2008, he fell from a ladder when it “rocked” and “tilted” as he descended the ladder after accessing his storage unit “2310”, located on the second floor of the subject premises. UHNY&VT provided various rolling “mobile ladders” for its customers to access storage units located on the second and third levels of the Chelsea facility. Plaintiff claimed that the subject ladder was dangerous and not properly maintained, since it was missing the rubber “boots” or “caps” that were supposed to be in place on the ladder’s 2 front legs. Plaintiff further claimed that the ladder’s “lock-step” brake mechanism was not functioning properly, and that the ladder’s instruction / warning plates had been obliterated due to years of use, such that same were not legible at the time of the accident. Plaintiff’s expert CSP further testified that the subject ladder was in violation of applicable ANSI standards, and that the ladder was not reasonably fit for its intended use at the time of the accident.
UHNY&VT argued that the ladder was reasonably fit for its intended use, and that the condition of the ladder had nothing whatsoever to do with the cause of plaintiff’s fall. UHNY&VT introduced the testimony of its GM of the facility, who testified that on the date of the incident, Smith reported to her simply that he had slipped and fallen off the ladder. UHNY&VT further introduced an incident report completed by plaintiff two days after the accident, wherein plaintiff merely claimed to have slipped, lost his balance and fallen off the subject ladder, wherein he made no mention of any movement of the ladder whatsoever. UHNY&VT argued that since the version of plaintiff’s fall involving the rocking and tilting of the ladder only materialized years after the accident in depositions, and was in direct contradiction with the accident report plaintiff completed two days after the accident, plaintiff was not credible in describing his fall at deposition or at trial. UHNY&VT’s expert engineer further testified that the ladder was reasonably fit for its intended use, that the “lock-step” was functioning properly, and that the missing rubber “boots” did not contribute to any instability in the ladder.
As a result of the fall, plaintiff sustained a severe right ankle fracture, initially requiring open reduction and internal fixation, and further requiring two (2) additional surgical procedures, including a failed ankle fusion surgery. Plaintiff had developed osteomyelitis, at least partially due to his failure to follow medical advice, and his doctors were recommending a below the knee amputation due to the bone infection.
After a trial on liability only, and jury deliberations of approximately one hour and 15 minutes, the jury returned a defense verdict on April 5, 2013.
We welcome the opportunity to serve your business needs and develop a mutual, long lasting relationship as we have with our many clients over the years.