Timothy Gallagher Wins Defense Verdict in $15 Million Asbestos Case
MMG Senior Partner Timothy Gallagher represented Tishman Realty and Construction Company, the original general contractor for the World Trade Centers, in New York County asbestos case Sharon Epstein, Individually and as Independent Administrator of the Estate of Ira Epstein v. Atlas Turner, Inc., et al along with Associates Heidi Baker, Gary Healy, and Melissa Reitberg, winning a unanimous defense verdict over plaintiffs, Epstein after a grueling three month trial.
In this landmark $15M World Trade Center asbestos suit, the plaintiff’s family asserted claims of asbestos personal injury and wrongful death, claiming the decedent, Ira Epstein, and his alleged bystander exposure to asbestos-containing products while working at the World Trade Center was the cause of his mesothelioma. Plaintiff alleged that for approximately two months in 1970, he worked for an unidentified pipe fitting company on the 72nd floor of Tower 1 of the World Trade Center. It was alleged that during this time, Epstein was in the vicinity of other trades at the World Trade Center, including tile workers, electricians, insulators, and drywall workers who he alleged used various asbestos-containing products. Epstein was diagnosed with mesothelioma in April 2016 and passed away in July 2017.
MMG Senior Partner, Timothy Gallagher challenged Epstein’s allegation that he ever worked at the World Trade Center, arguing that he did not, as the 72nd floor of the World Trade Center was not yet built at the time that he was allegedly present on the site. Gallagher presented tangible evidence, construction records and discovery depositions of former employees to convince the six-person jury to render a unanimous defense verdict in favor of Tishman and the Port Authority, and awarding no damages to Epstein’s estate.
Associate Kristina Drolet Secured Voluntary Discontinuance with Prejudice
Representing the plaintiff’s employer as a third-party defendant in Sookdeo v. Richie Roma Home Improvement Corp., et al. in Kings County Supreme Court, Drolet used effective questioning and CCTV evidence to get the plaintiff to acknowledge that no accident took place.
At his deposition the plaintiff alleged that he was injured on a construction site when a ramp collapsed and that the accident occurred at a particular time. CCTV footage showed the plaintiff working at that particular time and the plaintiff is shown to experience a small stumble.
The plaintiff eventually admitted that the purported accident was actually the small stumble shown in the video, meaning there was no accident. The plaintiff then changed his testimony claiming that the accident was not shown on the video and that it must have occurred outside of the originally alleged time-frame shown in the footage.
Drolet's skilled deposition preparation and questioning backed the plaintiff into a corner resulting in contradictory testimony about a fundamental aspect of the case. As a result the plaintiff discontinued the entire action with prejudice.
Representing the site owner and general contractor in Joseph Quevedo v. Macerich Property Management Company et al. in Suffolk County Supreme Court, Mo Ayoub successfully won summary judgment dismissing the entire complaint.
Plaintiff alleged that he slipped and fell on plastic sheeting that had been put down to protect the site’s concrete floor against staining from overspray of fireproofing. At the time of his accident, about two inches of fireproofing material overspray covered the plastic sheeting. He alleged negligence and violations of Labor Law §§ 200 and 241(6). Ayoub laid the groundwork for a successful motion in his litigation of the case through the discovery phase. Addressing the negligence and Labor Law § 200 claims in his motion, Ayoub showed the court through the EBT transcripts, affidavits and other evidence that the accident arose entirely from the means and methods of plaintiff’s employer, without any direction or control from the owner or general contractor, and without any involvement of a dangerous condition chargeable to either.
Ayoub successfully advanced the legal argument that the principal Industrial Board rule on which plaintiff based his Labor Law § 241(6) claim , 12 NYCRR 23-1.7(d) relating to slipping hazards, could not sustain his case, since the protective sheeting was not a foreign substance slipping hazard contemplated by the rule and statute, but rather an integral part of his work, and thus not actionable. Ayoub also successfully argued that plaintiff’s allegation that defendants violated 12 NYCRR 23-1.30 relating to illumination, was too vague in this instance to support an inference that the lighting fell below minimum requirements.
The court granted summary judgment in favor of the owner and general contractor, dismissing the complaint in its entirety.
Associate Mohammed Ayoub Wins Labor Law Summary Judgment
Associate Mikhail Pinkusovich Obtains Defense Verdict in Motor Vehicle Accident Lawsuit
Representing defendant Cheickna Tounkara in Zaire Ashe Lamaar Arruz v. Malik Noor Mohammad, Mohosin Hossain, and Cheickna Tounkara, in Kings County Supreme Court, Mikhail Pinkusovich secured a defense verdict from the jury for his client following a three day trial.
The plaintiff alleged that he was injured in a motor vehicle accident while a passenger in a vehicle operated by Defendant Tounkara. Defendant Hossain struck Tounkara's vehicle when Hossain attempted suddenly and without warning to pull out of the parking lane on Fulton Street in Brooklyn. As a result of the accident, Plaintiff underwent a right knee orthopedic surgery and allegedly sustained a left ankle fractur
Throughout the liability portion of the trial, Plaintiff’s counsel maintained that both Defendant operators were equally at fault for the accident. Nevertheless, Pinkusovich was able to successfully show that this accident would not have happened if it were not for Mr. Hossain’s sudden and unanticipated departure from a parking lane. Testimony from Mr. Tounkara showed that he was confronted with a sudden situation when Mr. Hossain dangerously pulled out from the parking spot and failed to engage his blinker.
The jury found that Pinkusovich’s client Tounkara’s actions were not negligent, resulting in 100% of fault being attributed to Hossain.
Associate Dawn C. Wheeler wins summary judgment dismissing entire suit.
Representing the site owner and general contractor in Ting Wang Lin v. Flushing Point Holding, LLC in Queens County Supreme Court, MMG Partner Robert Paessler obtained a damages verdict of $365,000.00. This was a Labor Law 240(1) claim in which plaintiff was granted summary judgment on liability. The case proceeded to trial on damages only. Plaintiff never moved off his settlement demand of $2,000,000.00 despite an offer of $450,000.00 and authority up to $850,000.00 (the trial judge’s recommendation). In summation, plaintiff’s counsel requested that the jury award his client $4,000,000.00.
Plaintiff, Ting Wang Lin (51 years old), fell 15 feet from a ladder onto a concrete floor on 7/6/16 sustaining a fracture of the left forearm with an acute displaced fracture of the radial head (elbow) requiring open reduction internal fixation; a lateral humeral fracture, fracture of the left hip, fracture of the left ball and socket, left pubic rami fracture, tear of the gluteus maximus, disc herniation at C3-4, disc herniation of C5-6 and was recommended for left hip replacement surgery due to a 4 cm non-union of the left greater trochanter. Plaintiff claimed that he could never return to work again as a laborer and that his left hip caused him so much pain and discomfort that he was essentially bed ridden.
Paessler argued that plaintiff presented no evidence of any residuals concerning any of the four fractures or disc herniations. He also argued that plaintiff was clearly embellishing his left hip symptoms or one of his treating/surgical physicians (none of whom testified) would have recommended surgery to his left hip prior to plaintiff’s expert’s recommendation in April of 2019. It was further argued that if plaintiff’s complaints were genuine he would have received some form of treatment/therapy/NSAID since his last treatment in September of 2018. Finally, it was argued that if the jury did believe plaintiff’s claims of left hip symptoms so severe that they kept plaintiff bed ridden they still should not compensate him for past pain and suffering as plaintiff was well aware of the fact, as early as April 2019, that left hip replacement surgery would resolve all his problems and yet he had refused to schedule the surgery. Clearly, these arguments resonated with the Queens County jury based on their verdict.
Associate Deirdre Egan represented the building owner and general contractor in Svitlana Songaila v. 2068 Ocean Avenue LLC et al. in Kings County Supreme Court wherein she successfully tendered defense and indemnity to the sub-contractor.
Plaintiff alleged that she was injured while sitting on her balcony at 2072 Ocean Avenue, when she was struck on the head by falling debris, which she alleges fell from the adjoining construction site. Plaintiff alleged general negligence against the owner of 2068 Ocean Ave and the general contractor.
At the outset of litigation, an initial tender request was sent to the subcontractor demanding defense and indemnity in favor of the owner and general contractor for plaintiff’s claims. The initial tender was denied, and a third-party action was then commenced against the subcontractor. A second tender letter was issued outlining exactly why the subcontractor’s insurer owed additional insured coverage, but again the tender was denied.
The matter proceeded through discovery as Egan laid the groundwork for a eliminating the purported basis for the refusal of the tender of her client’s defense and indemnification. Egan elicited an admission from the subcontractor's deposition witness that the debris alleged to have struck the plaintiff was in fact the type of material used by them.
The tender request was renewed, and accepted, together with an agreement to reimburse all legal fees and defense costs from the time of the initial tender.
Associate Deirdre Egan Successfully Tenders to Subcontractor for Defense and Indemnity
Associate Dawn Wheeler represented defendants, the owner and General Contractor, in Ines Ferrer v. 120 Union Avenue LLC and Danya Cebus Construction LLC, wherein she won summary judgement and dismissal of the entire lawsuit.
In this trip and fall action Plaintiff alleged that on July 18, 2016, while walking on a public pathway abutting a closed construction site, she tripped and fell on a broken cinder block in said pathway. Plaintiff alleged numerous injuries and surgeries to both knees, shoulder and lumbar spinal surgery. The pathway was a NYC DOT/DOB permit required portion of the roadway blocked off for pedestrians, due to the necessary construction. Plaintiff alleged that Owner and General Contractor, represented by Wheeler, were negligent in causing and allowing the cinder block to be on, and remain in a publicly traversed pathway, and that defendants created the condition, and/or had constructive notice of its presence.
Wheeler contended that the site had been closed down for nearly two months for a re-design of the proposed building, no deliveries were made during that time, and the two entrances were key locked with the G.C. site superintendent having the only key. During the shutdown only the G.C. superintendent had access to site and would go there at least once per week to meet with individual contractors and go over plans. He would walk the perimeter pathway in question and inspect it each time, and there was never any debris during his inspections. In support of the motion, Wheeler submitted the daily construction logs with photos that were completed each work day up to the May closing, in addition to relevant testimony.
Wheeler argued that the photos depicted what the Owner and G.C. described as “CMU” blocks which were similar to old cinder block, but different materials were used to form them. The CMU blocks were of a larger size with larger “cells” for larger rebar and concrete required for use in the construction. Wheeler further argued that there was no actual notice and Plaintiff could only offer speculation as to constructive notice, and how the “cinder block” may have come to be in the pathway. Judge Jiminez-Salta, after thoroughly addressing the arguments, found that defendant had performed required inspections of the area demonstrating entitlement to summary judgment and plaintiff failed to rebut the evidence, offering only speculation as to how the cinder block may have appeared in the pathway.
Partner Rob Paessler Wins Damages Verdict in Labor Law Case