Trials

• BREACH OF CONTRACT/PROPERTY DAMAGE- NEGLIGENT CONVERSION FROM AN OIL TO GAS HEATING SYSTEM -JUDGMENT FOR DEFENDANT; DEFENDANT AND THIRD PARTY DEFENDANT SETTLED CLAIM FOR ATTORNEY'S FEES PRIOR TO COMMENCEMENT OF TRIAL.
  
  
• BREACH OF CONTRACT - ACTION TO ENFORCE PROVISION IN LEASE GRANTING TENANTS OPTION TO PURCHASE BUILDING, OR IN THE ALTERNATIVE, THE RETURN OF A DOWN PAYMENT, CROSS-CLAIM FOR USE AND OCCUPANCY OF BUILDING
  
  
• XVII/45-15 MOTOR VEHICLE - PASSENGER - STOP SIGN- HOST FAILS TO YIELD RIGHT-OF-WAY - JURY FINDS OTHER DRIVER NEGLIGENT, BUT FINDS NO PROXIMATE CAUSE - DEFENSE VERDICT.
  
  
• XVII/43-33 PRODUCT LIABILITY - WOOD CHIPPER - DEFENSE VERDICT
  
  
• XVII///30-35 PRODUCT LIABILITY - LOG SPLITTER - DEFENSE VERDICT FOR MANUFACTURING COMPANY.
  
  
• XVI/34-9 STORE ACCIDENT - CUSTOMER ALLEGEDLY STRUCK BY BOX - DEFENSE VERDICT ON LIABILITY
  
  
• VIII/43-3 PRODUCT LIABILITY - CIRCULAR SAW - DEFENSE VERDICT
  
  
• XVI/15-34 PRODUCT LIABILITY - CLAIM OF IMPROPERLY DESIGNED SNOW THROWER - DEFENSE VERDICT.
  
  
• XV/3-27 PROPERTY DAMAGE - DEFENDANT ALLEGEDLY TELLS PLAINTIFFS HOW TO TURN ON OIL BURNER RESULTING IN FIRE - DEFENSE VERDICT
  
  
• XIV/49-14 LAWNMOWER ACCIDENT - REAR TRAILING SHIELD REMOVED - DEFENSE VERDICT.
  
  
• XIII/7-7 FALLDOWN - PARKING LOT - FAILURE TO REPAIR CRACK - DEFENSE VERDICT
  
  
• XI/13-4 INSURANCE CASE - MATERIAL DEFECT IN POLICY CANCELLATION NOTICE
  
  
• XI/12-12 FALLDOWN LOADING DOCK - DELIVERY MAN INJURY - ICE - DEFENSE VERDICT ON LIABILITY
  
  
• IX/37-8 PRODUCT LIABILITY - FLAMMABLE FABRIC - JURY FINDS CHILD'S SHIRT NOT DEFECTIVE - WRONGFUL DEATH DEFENSE VERDICT
  
  
• VII/41-11 PRODUCT LIABILTY - LAWNMOWER - DEFENSE VERDICT
  
  
• XVII/3-17 FALLDOWN - HOLE IN STORE PARKING LOT - DEFENSE VERDICT ON LIABILITY
  
  
• XVI/49-31 PRODUCT LIABILITY - SUDDEN STOP BY EXERCISE TREADMILL THROWS PLANITIFF INTO WALL - DEFENSE VERDICT
  
  
• XI/29-18 PRODUCT LIABILITY - OBJECT THROWN BY LAWNMOWER - DEFENSE VERDICT
  
  
• BREACH OF CONTRACT PROCEEDING -- HOMEOWNERS ASSOCIATION SUES MANAGING AGENT FOR FAILURE TO PROPERLY MAINTAIN CO-OPERATIVE BUILDING
  
  
• ACCOUNTING PROCEEDING -- EMPLOYEE CLAIMS TO BE PARTNER IN REAL ESTATE BUSINESS AND CERTIAN REAL PROPERTY
  
  
• FRAUD PROCEEDING -- BUYERS OF AIRLINE CLAIM FRAUD IN AREA TO DISCLOSE ALIENABILITY OFLANDING RIGHTS
  
  
• STORE ACCIDENT -- DOOR -- CLAIM OF DEFECTIVE DOOR-CLOSING MECHANISM AND DOOR SADDLE -- DEFENSE VERDICT
  
  

Published with the permission ofThe New York Jury Verdict Reporter

Copyright NLP IP Company - American Lawyer Media, Inc.

XVII/45-15 MOTOR VEHICLE - PASSENGER - STOP SIGN- HOST FAILS TO YIELD RIGHT-OF-WAY - JURY FINDS OTHER DRIVER NEGLIGENT, BUT FINDS NO PROXIMATE CAUSE - DEFENSE VERDICT.

Reva and Lembenski Payne v. Heriberto Rodriguez, a/k/a Herberto Rodriguez and Sears, Roebuck and Co. v. Lembenski Payne 31369/96 4-day trial Verdict 12/17/99Judge: Gloria M. Dabiri, Kings Supreme

VERDICT: Defense verdict for Rodriguez and Sears v. Reva Payne (6/0). The jury found that Rodriguez and Sears were negligent, but their negligence was not a proximate cause of Pltf.'s injuries. Post-trial motions were denied in a written decision filed 4/3/00. Lembenski Payne, as Third-party Deft., settled with Rodriguez and Sears after jury selection for $50,000 (policy). Rodriguez and Sears settled with Lembenski Payne as Pltf. during trial for $15,000. Jury: 2 male, 4 female. Notice of Appeal by Pltf. is likely.

Pltf. Atty.: Martin C. Julius, Mineola, for Reva PayneEdward J. King, Mineola, for Lembenski Payne as Pltf.

Deft. Atty.: Marc Rowin of Lynch Rowin LLP, Manhattan, for Rodriguez and Sears.John E. Hedley of Barron, McDonald, Carroll, Cohen & Harris, Manhattan, for Lembenski Payne as Third party Deft.

Facts: The accident occurred on 8/1/96 at approximately 1 PM at the intersection of 155th St. and 107th Ave. in Jamaica. Pltf. Reva Payne, a 28-year-old flag-person, was a passenger in a car driven by Pltf. Lembenski Payne, age 32 and self-employed. They were proceeding south on 155th St. when their vehicle was involved in a collision with a van owned by Deft. Sears and driven by Deft. Rodriguez. The van was eastbound on 107th Ave. at the time. A stop sign controlled traffic on southbound 155th St.; there was no traffic control on 107th Ave. Pltf.'s vehicle was in the intersection when it was struck on the passenger side by the van.

Pltf. Lembenski Payne testified that he had stopped at the stop sign, looked both ways for traffic, and drove into the intersection. He testified that he had an unobstructed view 250 feet to his right, the direction from which the van was coming, but did not see the van until just before impact. He admitted that the van had the right-of-way.

Deft. Rodriguez testified that he saw Pltfs.' car in the intersection and braked, but was unable to avoid the accident. He conceded that he had been driving 37 mph in a 30-mph zone two blocks from the collision. Deft. Rodriguez testified that if he had been driving slower, the accident would not have occurred. Pltf.'s accident reconstruction expert testifed that Rodriguez was at fault because he was driving over the speed limit. He did not calculate the speed of each vehicle at the time of the impact. On cross-examination, he admitted that Lembenski Payne would have been able to see the van while he was stopped at the stop sign. Deft.'s accident reconstruction expert testified that his calculations indicated the Deft.'s van was traveling at 31.8 mph when Deft. applied the brakes, and was moving at 29.6 mph at the time of impact. He testified that the accident was caused by Lembenski Payne's failure to yield the right-of-way to the van. Rather than the van's speed.

The jury found that Rodriguez and Sears were negligent, but that their negligence was not a proximate cause of the accident.

Injuries: Reva P.: fractured right humerus which subsequently displaced, requiring open reduction and internal fixation with a screw and plate. Lembenski P. (settled for $15,000 during trial) displaced cervical and lumbar discs with strains and sprains. Note: Lembenski Payne, a convicted felon serving a term in a State correctional facility, was brought to court from prison.

Demonstrative evidence: photographs of accident site; map of Queens; enlarged portion of Pltf.'s expert testimony.Specials: $15,057 for Reva Payne; $1,157 for Lembenski Payne. Offer: $150,000; demand $300,000. Jury deliberation: 1 hour.

Carrier: Nationwide for Lembenski Payne.

Pltf. Expert: Peter Pomeranz, P.E., accident reconstruction, Massapequa Park.

Deft. Expert: Domingo Isasi, P.E., accident reconstruction, Norwalk, Connecticut.

XVII/43-33 PRODUCT LIABILITY - WOOD CHIPPER - DEFENSE VERDICT

Kerry and Richard Aalbue v. MTD Products, Inc. and Home Depot USA 97 Civ. 6863 3-day trial Verdict 4/4/00 Judge Leonard D. Wexler, Eastern District.

VERDICT: Defense verdict (8/0). Jury: 6 male, 2 female.

Pltf. Atty.: George A Constantine, WestburyDeft. Atty.: Thomas P. Lynch of Lynch Rowin LLP, Manhattan.

Facts: On 8/13/96, Pltf., a 31-year-old emergency medical worker, was injured while operating a wood chipper, a 3.5 HP chipper/shredder #J0131A1, that was manufactured by Deft. MTD and sold by Deft. Home Depot. Pltf. claimed that her hand was dragged into the chipper's intake chute. Pltf.'s expert testified that the machine was defectively designed in that the door to the intake chute opened and allowed Pltf.'s hand to enter the chute. He also testified that the chute was too short, causing Pltf.'s hand to contact the chipping blade, and that there should have been a kill switch on the right side of the machine. Deft.'s expert testified that the machine conformed to all applicable standards and was made free from any defects. He testified that the accident could not have happened as Pltf. claimed and that Pltf. must have intentionally placed her hand in the chute.

Injuries: degloving injury with tissue to the right (dominant) forefinger. Pltf. claimed that she has pain and a 70% disability to the finger. Demonstrative evidence: Pltf.'s wood chipper; exemplar wood chipper; videotape of exemplar wood chipper being operated; photographs; owner's manual; point of sale document; warning label. No offer; demand: $500,000; amount asked of jury: $542,000. Jury deliberation: less than 1/2 hour.

Pltf. Expert: Michael Kaufman, P.E., engineer, Massapequa.Deft. Expert: Gunther Plamper, engineer, Cleveland, Ohio

XVII///30-35 PRODUCT LIABILITY - LOG SPLITTER - DEFENSE VERDICT FOR MANUFACTURING COMPANY.

Vohwinkel v. MTD Products, Inc.; Energy Manufacturing Co.; MidWest Spring Manufacturing Co.; and Grainger, Inc. 97 Civ. 1016 4-day trial Verdict 11/19/99 Judge Leonard D. Wexler, Eastern District.

VERDICT: Defense verdict on liability v. MTD Products (8/0). Pltf. settled with Defts. Energy Manufacturing and MidWest Spring for $225,000 before jury selection (Energy paid $175,000 and MidWest paid $50,000). Pltf. discontinued against Grainger, the retailer. Jury: 5 male, 3 female.

Pltf. Atty.: Vincent J. Nofi of Scalzie & Nofi, MelvilleDeft. Atty.: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, P.C., Manhattan, for MTD

Facts: on 11/29/96, Pltf., a 34-year-old carpenter, was splitting logs in the rear of his house in Bohemia using a 22-ton log splitter manufactured in 1989 by Deft. MTD (defense verdict). Pltf. testified that while he was operating the splitter, the splitter wedge came down on his left hand, severing his thumb and fracturing one finger. Pltf. claimed that the wedge came down inadvertently due to a broken spring in the directional control valve, which controlled the log splitter wedge's movement. The spring was manufactured by Deft. MidWest (settled before trial for $50,000). Pltf. contended that the machine was defectively designed because it did not contain additional safety features that would have prevented the wedge's inadvertent movement.

Deft. MTD denied that the log splitter was defective as designed. It contended that the spring in the directional control valve was broken (testimony indicated that the spring had broken 12 years after the splitter was manufactured), but contended that the proximate cause of the accident was Pltf.'s use of the splitter in the early evening under poor lighting conditions. The time of the accident was disputed: Pltf. had testified that it occurred shortly after 5 PM, and MTD claimed that the accident happened at approximately 5:25 PM. The 911, EMS, and hospital records all indicated that the emergency call came to the Bohemia Fire Dept. at 5:32 PM.

The jury found, by special interrogatory, that the log splitter was not defective.

Injuries: amputation of the left (nondominant) thumb; fracture of left forefinger. Pltf,'s thumb was reattached, but was later surgically amputated when it became gangrenous. Demonstrative evidence: videotapes of the log splitter that Pltf. had been using; video of an exemplar log splitter in operation; exemplar log splitter valves with alternative safety designs; weather reports and records from the National Oceanic and Atmospheric Administration (N.O.A.A.) showing time of sundown; emergency call records showing time of accident call; photographs of Pltf.'s injury while in the hospital. No offer; demand: $1,500,000. Jury deliberation: 1 1/2 hours.

Pltf. Experts: Michael Kaufmann, engineer, Massapequa Park; Dr. Andrew Dowd, orth. surg. And hand surgeon, Stony Brook.Deft. Expert: Gunther Plamper, engineer, Strongsville, Ohio

XVI/34-9 STORE ACCIDENT - CUSTOMER ALLEGEDLY STRUCK BY BOX - DEFENSE VERDICT ON LIABILITY

Santino and Georgia Patrizzi v. Sears, Roebuck and Co. 26285/93. 2 day trial. Verdict 2/5/99 Judge Orin R. Kitzes, Queens Supreme

VERDICT: Defense verdict on liability (6/0). Post-trial motions were denied. Jury: 2 male, 4 female.

Pltf. Atty.: Dario Perez of Dinkes & Schwitzer, ManhattanDeft. Atty.: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, Manhattan

Facts: Pltf., a 28-year-old truck driver, claimed that he was injured on 6/10/93 at Deft.'s Lake Success store when a box filled with merchandise fell on his leg and shin and caused him to fall. Pltf. contended that the box was being transported on a cart from a storeroom to a display area at the time. Deft. admitted that the box fell, but denied that it struck Pltf. It argued that if Pltf. was struck, it was only by a piece of merchandise and not by the entire box. The jury, by special interrogatory, found that the box did not strike Pltf.

Injuries: (Not before the jury) herniated lumbar disc at L5-S1. Pltf. underwent approximately 90 chiropractic treatments, and he has not worked since the accident. Demonstrative evidence: box; accident reports; witness statements. Offer: $3,000; demand $150,000. Jury deliberation: 20 minutes.

Pltf. Expert: Dr. Harold S. Goldberg, chiropractor, ManhattanDeft. Expert: Dr. Raymond Koval, orth. surg., Elmhurst

VIII/43-3 PRODUCT LIABILITY - CIRCULAR SAW - DEFENSE VERDICT

Vernon Buell v. Sears, Roebuck and Co. 4647/89. 4-day trial Verdict 4/5/91 Judge Edward H. Lehner, New York Supreme.

VERDICT: Defense verdict (6/0). Post-trial motions were denied. Jury: 1 male, 5 female.

Pltf. Atty: Joseph A. Bendas for Jaroslawicz & Jaros, ManhattanDeft. Atty. Marc Rowin of Lynch, Rowin, Novack, Burnbaum & Crystal, Manhattan

Facts: On 9/18/87, Pltf., a 30-year-old electrician, was injured while using a Sears Craftsman portable circular saw manufactured by the motor products division of Singer Co. The assets of that division were later acquired by Ryobi Motor Products Corp., (not a party in this action). Pltf. testified that after using the saw, he set it on his leg while the blade was still turning, expecting the blade guard would close as the blade spun to a halt. The guard did not close, however, and Pltf. was injured by the saw blade.

Pltf.'s expert testified that the spring that closed the blade guard was improperly designed. He contended that with extended use, the spring could "freeze" in one position from built-up sawdust and wood resin. Deft. denied that the spring could freeze, and argued that when Pltf. placed the saw against his leg, he prevented the blade guard from moving into place. Deft.'s expert, a member of the team that designed the saw, testified that the saw met all current required standards. He contended that the accident occurred solely because of Pltf.'s negligence, and not from any defect in the saw. Deft. also argued that Pltf. assumed the risk of injury by using a power tool. Pltf. conceded that he was aware that the blade was still turning when he placed the saw on his leg.

Pursuant to CPLR Article 16, Judge Lehner charged the jury that although the manufacturer was not a party to this case; they could apportion some fault to it. The jury found that the product was not defective.

Injuries: 2-inch laceration to the right leg resulting in permanent scarring. There was no nerve or muscle damage. Demonstrative evidence: power saw; owner's manual; test reports. No offer: demand: $50,000.

Jury deliberation: 3 hours.

Pltf. Expert: Gilbert Wray, engineer, Stevens Institute, Hoboken, New Jersey. Deft. Expert: George Whelchel, product safety manager (a member of the team that manufactured and designed the saw), Ryobi Motor Products Corp., Pickens, South Carolina.

XVI/15-34 PRODUCT LIABILITY - CLAIM OF IMPROPERLY DESIGNED SNOW THROWER - DEFENSE VERDICT.

Anthony Breitbach v. Simplicity Mfg., Inc. 96 Civ. 3660 3-day trial Verdict 9/9/98 Judge Denis R. Hurley, Eastern District.

VERDICT: Defense verdict (8/0). Jury: 6 male, 2 female.

Pltf. Atty: Michael I. Gandin of Gandin, Schotsky, Rappaport, Glass & Greene, Melville.Deft. Atty: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, Manhattan

Facts: Pltf., an 18-year-old dealership attendant, testified that on 2/2/96 he was injured while using Deft.'s 555 Simplicity Snow Thrower to remove snow at work. Pltf. testified that he had placed his hand in the discharge unit to clear to a clog, when the tips of his finger came into contact with the impellers of the machine. Pltf. Claimed that the deadman switch did not operate properly in that it did not shut off when his hand left the operating switch. Pltf. claimed that the operator presence control should have been covered to prevent it from jamming. He also claimed that there were inadequate warning on the snow thrower.

Deft. argued that the machine was properly designed and the control switch was in good working order. Deft. contended that Pltf.'s version of the incident was contradictory.

Injuries: amputation of the tips of the first and second fingers of the left (nondominant) hand; fractured third finger. Pltf. was out of work for 3 months. He claimed that he could no longer participate in sports, that he had to find a different job, and that he was embarrassed by his disfigurement. The injuries were stipulated. Demonstrative evidence; actual snow thrower; photographs; manuals; diagrams; schematics; warning labels, medical records. Offer $25,000; demand: $75,000; amount asked of jury: $300,000. Jury deliberation: 30 minutes.

Pltf. Expert: Paul Glasgow, P.E., engineer, Valley Stream.Deft. Expert: John Brackin, engineer, chief in-house engineer of Simplicity, Port Washington, Wisconsin.

XV/3-27 PROPERTY DAMAGE - DEFENDANT ALLEGEDLY TELLS PLAINTIFFS HOW TO TURN ON OIL BURNER RESULTING IN FIRE - DEFENSE VERDICT

Allstate, as subrogee of Moses and Cinderella Heyliger v. Sears, Roebuck and Co.; Anthony J. Centone of Lian, Malapero & Prisco, Manhattan, for Climate Systems, Inc. 6749/95 4-day trial. Verdict 2/28/97 Judge Howard Miller, Rockland Supreme

VERDICT: Defense verdict (6/0). Jury: 4 male, 2 female.

Pltf. Atty: Lisa J. Kallan, ManhattanDeft. Atty: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, Manhattan, for Sears, Roebuck and Co.

Anthony J. Centone of Lian, Malapero & Prisco, Manhattan, for Climate Systems.

Facts: Pltf.'s. Claimed that on 1/10/94 their house in Rockland County was destroyed in a fire due to a faulty burner in the basement. Pltfs. testified that Deft. Sears, Roebuck and Co. came to the home to repair the old burner. When Deft. arrived at the home, it found that the burner was turned off and the house was cold. Sears called to have a new burner delivered that day. Deft. Climate Systems brought the new burner to Pltf.'s home that afternoon, but Climate could not install the new burner until the next day. Pltf.'s claimed that they told Deft. Climate Systems employees that they had prior problems with the old burner, and Deft. taught them how to start the old burner to get it working for the evening, resulting in the fire. Pltf's. argued that Deft. Climate Systems should have shut down the old burner and should have known that it was dangerous to leave the house with the old burner running. They contended that Deft. Sears, Roebuck failed to communicate with Climate Systems about the old burner. Pltf. claimed $420,000 in damages for the house and its contents.

Deft. Climate System denied that any of its employees told Pltf.'s how to start the burner and argued that it knew nothing about any prior problems with the old burner. It testified that Pltf.'s were cooperative about the new burner not being installed until the next day. Deft. Sears Roebuck argued that it properly sold Pltf.'s a new burner and told climate Systems to deliver the burner that day. It claimed that it acted properly. Offer: $45,000; demand: $320,000. Jury deliberation: 2 hours. Carrier: Harleysville for Climate Systems.

Pltf. Expert: Arthur Jackson, engineer, Peter Valles Assoc., Hackensack, New Jersey.Deft. Expert: Jack Sanderson, P.E., engineer, St. Josephs, Michigan.

XIV/49-14 LAWNMOWER ACCIDENT - REAR TRAILING SHIELD REMOVED - DEFENSE VERDICT.

Feldman v. Aircap Industries v. Town of Huntington 27053/93. 4-day trial. Verdict 5/15/97 Judge Gerard D. Emilio, Suffolk Supreme.

VERDICT: Defense verdict on liability (6/0). Jury: 3 male, 3 female.

Pltf. Atty: Robert M. Bridges of Jacobson & Schwartz, Rockville CentreDeft. Atty: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, P.C., Manhattan, for Aircap; Ralph W. Crafa, Asst. Town Attorney, for Town of Huntington.

Facts: Pltf., a 21-year-old temporary maintenance worker employed by the Third party Deft. Town of Huntington, claimed that on 6/17/91 he suffered injuries while using a lawnmower manufactured by Aircap in 1987, and owned by the Town of Huntington. Pltf., a college student, was a summer employee at the time of the accident. He claimed that the rear-trailing shield on the mower was defective because it did not contain a hinge to prevent the shield from wearing out and falling off the mower. Pltf.'s expert contended that the rear-trailing shield should have been attached with a piano hinge. Deft. argued that, although the shield did not have a piano hinge, its design accounted for back-and-forth movement, meeting the design requirement that Pltf. contended was necessary. Deft. contended that it had been removed by the Town of Huntington. Both Aircap and the Town argued that the accident was caused by Pltf.'s own negligence in using the mower.

Injuries: (not before the jury) partial amputation of first two toes on the right foot. Demonstrative evidence: the actual lawnmower; mock-up of inside of mower; photographs of the lawnmower and the accident scene. No offer; demand: $125,000. Jury deliberation: 1/2 hour. Pltf. Expert: Stanley Fein, engineer, Plainview. Deft. Expert: Gunther Plamper, engineer, Strongsville, Ohio.

XIII/7-7 FALLDOWN - PARKING LOT - FAILURE TO REPAIR CRACK - DEFENSE VERDICT

Leslie and Gary Krasnoff v. Sears, Roebuck and Co. 1477/88 4-day trial Verdict 5/10/95 Judge Arthur W. Lonschein, Queens Supreme.

VERDICT: Defense verdict on liability (6/0). Post-trial motions were denied. Jury: 3 male, 3 female.

Pltf. Atty: James H. O'Hare of Jeffrey Samel & Associates, Manhattan.Deft. Atty: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, Manhattan.

Facts: Pltf., a court reporter in her early 30s, claimed that on 3/15/88 she was walking through a parking lot in Hicksville when she tripped and fell over a crack and hit her head. Pltf. argued that the crack was a hazard and the Deft. failed to repair it. She noted that the parking lot was used by the public and contended that Deft. had notice of the condition. Deft. argued that the condition was open and obvious and that Pltf. should have seen it. Deft. denied that it had notice of the crack. Deft. also claimed that the accident was unreported.

Injuries: (not before the jury) aggravation of prior knee injury resulting in a total knee replacement 6 weeks after the incident; head injury with blackouts and grand mal seizures; epilepsy. Pltf. claimed that she was able to return to work briefly, but she was on full disability at the time of the trial. Demonstrative evidence: photos of the crack. Offer: $50,000; demand: $2,000,000. Jury deliberation: approximately 1/2 hour. Carrier: Allstate. Pltf. Expert: Stanley Fein, P.E., engineer, Plainview. There was no expert testimony for Deft.

XI/13-4 INSURANCE CASE - MATERIAL DEFECT IN POLICY CANCELLATION NOTICE

Keith Gilbride v. American Transit Insurance 19371/92 3-day trial Verdict 8/18/93; Judge Angela Mazzarelli, New York Supreme

VERDICT: $191,800 general verdict (6/0). Post-trial motions were denied. Jury: 2 male, 4 female.

Pltf. Atty: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, ManhattanDeft. Atty: George R. Cally of Calley & Cally, Manhattan.

Facts: Pltf., a 37-year-old carpenter, held an insurance policy with Deft. for a truck and a van. He was scheduled to pay $2,100 in premiums, broken up over 3 payments. The bill for his second installment was for $1,167. The figure, however, was smudged and unreadable on his bill, and Pltf. did not make the payment until he received a cancellation notice informing him that he had to pay the bill by 11/22//89 or his policy would be terminated. Pltf. was unsure of the amount of the bill, so he contacted his broker. The broker contacted Deft. and asked the amount of the installment. Deft's employee informed the broker that Pltf. had to pay $1,157. Pltf. sent in a check for $1,157 and it was cashed on 11/10/89. Deft. then cancelled his policy. Pltf's broker discovered that the policy was canceled for failure to pay the $10 difference between the amount on the smudged bill and the figure given to him by Deft. Deft. told Pltf's broker to send a statement that Pltf. had not been in any accidents and promised to resolve the error. On 12/22/89, Pltf. was involved in an automobile accident. Deft. refused to provide coverage, claiming that the policy was never reinstated. Deft. offered to review Pltf's case. Nine months later, Deft. informed Pltf., that he was refused coverage for failure to pay the $10. In the intervening time, Pltf. was served with two default judgments for Deft's failure to represent his claim

As a result of the default judgement, Pltf. lost his driver's license and his registration. He further contended that his credit rating was severely damaged as a result of the two default judgments. Pltf. argued that New York Insurance Law requires that a notice of cancellation must contain no material defects. Pltf. contended that the smudged figure in the bill constituted a material defect with caused him to pay the wrong amount for the policy and led to its cancellation. Deft. contended that the policy would have been cancelled if "Pltf. owed 2¢." It contended that Pltf's policy was canceled due to his failure to pay the $10, and that it was not required to cover Pltf. if he failed to make his payments. Demonstrative evidence: copy of smudged cancellation notice; canceled check; correspondence between broker and Deft. Offer: $75,000; demand $200,000. Jury deliberation: 3 hours. Pltf. Expert: Robert V. Ferrari, Attorney, Manhattan.

XI/12-12 FALLDOWN LOADING DOCK - DELIVERY MAN INJURY - ICE - DEFENSE VERDICT ON LIABILITY

Stanley Eveanowski v. Sears, Roebuck and Co., Melvin Simon Assoc. (Third Party Deft.) 18910/92 2 1/2-day trial. Verdict 7/29/93 Judge Alvin R. Ruskin, Westchester Supreme.

VERDICT: Defense verdict on liability for both Defts. (6/0). Jury: 3 male, 3 female.

Pltf. Atty: Melvin A. Saunders of Shaprio & Yankowitz, Manhattan.Deft. Atty: Thomas P. Lynch of Lynch, Rowin Novack Burnbaum & Crystal, Manhattan, for Sears, Roebuck and Co., Edward A. Grey of J. Russell Clune, Harrison, for Melvin Simon.

Facts: On 1/16/85, Pltf., a truck driver in his mid-40's employed by Third party Deft., drove a tractor-trailer to the Jefferson Valley Mall to drop off merchandise at Deft. Sears' loading dock. Pltf. testified that he was walking around the area waiting for the unloading to be completed when, he slipped and fell on a patch of ice that was covered with snow. There were no witnesses to the incident.

Defts. denied that the incident occurred, arguing that Pltf. never reported it. Defts. also argued that Pltf. was comparatively negligent. Sears denied that it had actual or constructive notice of the icy condition. Pltf. told his employer about the incident 2 days after it happened.

Injuries: (not before the jury) soft tissue injuries to the lower back. Diagnostic tests were negative. Pltf. claimed that his injuries precluded him from returning to work. Demonstrative evidence: certified weather reports; photographs of the scene; reciprocal easement agreement between Defts. Specials: Worker's Compensation in excess of $100,000. No offer; demand: $250,000. Jury deliberation: 40 minutes, Carrier: Aetna for Melvin Simon Assoc. There was no expert testimony.

IX/37-8 PRODUCT LIABILITY - FLAMMABLE FABRIC - JURY FINDS CHILD'S SHIRT NOT DEFECTIVE - WRONGFUL DEATH DEFENSE VERDICT

Sacco v. Sears, Roebuck and Co. and Hyup Jim Enterprises, Inc. 22041/83 3 week trial Verdict 2/11/92 Judge Lester E. Gerard, Suffolk Supreme.

VERDICT: Defense verdict (6/0). Jury: 4 male, 2 female.

Pltf. Atty: Charles J. Rappaport of Gandin, Schotsky & Rappaport, MelvilleDeft. Atty: Thomas P. Lynch of Lynch, Rowin, Novack Burnbaum & Crystal, Manhattan, for Sears, Roebuck and Co.; Peter Kolbrener of Barnett & Kolbrener, Westbury, for Hyup Jim.

Facts: Decedent, age 15, was injured in a fire on 6/23/82. Pltf. claimed that the child was playing in his backyard when he accidentally set his shirt on fire. Pltf. claimed that the shirt, manufactured by Hyup Jim and sold by Sears, was unreasonably flammable.

There was inconsistent testimony as to how the fire actually started. Pltf. claimed that decedent was playing with matches: Defts. contended that there was an explosion inside the house that ignited the child's shirt. Decedent's 75-year-old grandmother was the only other person home at the time. The shirt, which was lost before trial, was made of 65% cotton and 35% polyester. The jury was given special interrogatories and found that: 1) decedent was wearing the shirt in question on the date of the accident; 2) the shirt was not ignited by an explosion; and 3) the shirt was not defective. Injuries: third-degree burns from the neck to the middle of the chest and on the hands, fingers, and arms. Decedent was conscious for 10-12 days at the Nassau County Burn Center before his death. Demonstrative evidence: fragments of the shirt in question; photos of the backyard, the book of matches, a decorative gas stove; film demonstrating the flammability of certain types of shirts; comparison shirts. No offer; demand: $350,000; amount asked of jury: $2,000,000. Pltf. Experts: Robert Johnson, engineer, University of Minnesota, Minneapolis; Vladmir Mischutin, chemist, White Chemical Corp.; Dr. Roger Simpson, plastic surgeon, Director of Burn Center at Nassau County Medical Center; Barry Grossman, meteorologist, Compu-Weather, Flushing; Andrew Varanelli, chemist, Suffolk County Criminalistics Lab. Deft. Experts: Dr. Bruce LeBlanc, Ph.D., expert on fabric flammability, director of LeBlanc Research Corp.; Dr. Daniel McCarthy, pathologist, Nassau County Medical Center.

VII/41-11 PRODUCT LIABILTY - LAWNMOWER - DEFENSE VERDICT

Antonio and Luiz Figueira v. Sears, Roebuck and Co. v. Andrew Gardens & Co., 15856/87 4-day trial verdict 3/7/90 Judge Bernard Burstein, Bronx Supreme

VERDICT: Defense verdict (5/0) Liability only.

Pltf. Atty: Stephen J. Fearon of Condon & Forsyth, ManhattanDeft. Atty: Thomas P. Lynch of Lynch, Rowin, Burnbaum & Crystal, ManhattanSherwin Wear of Rezak & Cyperstein, Manhattan

Facts: Pltf. was employed by Third party Deft. Andrew Gardens & Co. He claimed that he was injured while using a lawnmower manufactured by Deft. There was conflicting testimony at trial concerning the manner in which the accident occurred. Eyewitness depositions indicated the Pltf. was walking backwards, stopped and fell. At trial, Pltf. testified that he fell while going forward, but at his deposition he testified that he was backing up at the time. The lawnmower ran over his foot, causing his injury. Pltf. claimed that Deft. was liable for strict product liability because of a design defect. Pltf. contended that: 1) the handle was not long enough; 2) the angle of the handle was not high enough to provide proper grip: 3) the trailing shield was defective in that it was rubber and it should have been metal; and 4) the deadman's switch was defective because it rotated automatically to an upward position, rather than downward. Deft. contended that the accident occurred because Pltf. was backing up and negligently tripped over a rock. Deft. contended that the machine met with all safety design standards. Injuries; (not before the jury) traumatic amputation of the right large toe; fracture of the second and third toes. Pltf. had a second accident in which he sustained a fractured pelvis, and which he blamed on weakness caused by the instant accident.

Pltf. Expert: Martin Perl, Ph.D., engineer, Manhattan. Deft. Expert: Michael Gilliland, Engineer, St. Louis, Missouri.

XVII/3-17 FALLDOWN - HOLE IN STORE PARKING LOT - DEFENSE VERDICT ON LIABILITY

Elizabeth and George Bodenmiller v. Sears, Roebuck and Co. and Robert Gardiner d/b/a/ Gardiner Manor Mall 08369/94 3-day trial Verdict 6/21/99 Judge J. Bromley Hall, Suffolk Supreme.

VERDICT: Defense verdict on liability (6/0). Post-trial motions were denied. Jury: 4 male,2 female.

Pltf. Atty.: Thomas J. Spota of Spota, O'Rourke, Ammerman & Spreer, L.L.P., HauppaugeDeft. Atty.: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, Manhattan.

Facts: Pltf., a 48-year-old telemarketer, claimed that on 8/21/93 she went to Deft. Sears store in Deft. Gardiner Manor Mall to do some shopping. She claimed that as she was walking back to her vehicle, she tripped and fell on a crack or hole in the parking lot. Pltf. alleged that the parking lot was defective and that Defts. had failed to properly maintain the parking lot.

Deft. contended that the accident could not have happened as Pltf. described because the hole complained of was against the curb and the mechanics of the accident were impossible. Deft. also contended that Pltf. was negligent in that she did not see what was there to be seen.

Injuries: (not before the jury) herniated lumbar disc at L5-S1; four back operations, including a laminectomy and spinal fusion at L5-S1. Demonstrative evidence: photographs of the accident scene; schematics of the accident scene; the lease; maintenance records. Offer: $20,000; demand: $1,000,000. Jury deliberation: 25 minutes.

XVI/49-31 PRODUCT LIABILITY - SUDDEN STOP BY EXERCISE TREADMILL THROWS PLANITIFF INTO WALL - DEFENSE VERDICT.

Mary Ann and Louis Guarino v. Sears, Roebuck and Co. 3359/97 6-day trial Verdict 5/3/99 Judge E. Michael Kavanagh, Ulster Supreme

VERDICT: Defense verdict (6/0). Post-trial motions were denied. Jury: 5 male, 1 female.

Pltf. Atty.: Janis L. Errichetti, GoshenDeft. Atty.: Marc Rowin of Lynch, Rowin, Novack, Burnbaum & Crystal, P.C., Manhattan

Facts: Pltf., age 46 and employed in the family trucking business, claimed that on 1/19/97, her treadmill stopped suddenly after 2 minutes of use, throwing her off and causing her to strike the wall behind her. Pltf. claimed that 3 weeks before the accident, the treadmill had been serviced by Deft. which installed a new walking board and walking belt. Pltf. further claimed that it had not been used between the time of the service and the date of the accident. Pltf.'s expert testified that when he inspected the treadmill he found the motor belt, which connected the motor to the walking belt, to be loose, which would have caused the treadmill to stop.

Deft. denied that the motor belt was loose and alleged that Pltf. was injured because she misused the treadmill. Pltf. had admitted that it was her practice to turn the speed of the treadmill up to 6 miles per hour, and then jump onto the walking belt. Deft. introduced the instructions for the treadmill, which stated that the user should get on at a moderate speed. On cross-examination Pltf.'s expert conceded that it was improper for a user to get on the treadmill at 6 miles per hour. He also admitted that if the motor belt had been loose, the treadmill would have stopped immediately if run at 6 miles per hour and that Pltf. would not have been able to use the machine for 2 minutes.

Injuries: herniated lumbar discs at L3-4 and L4-5. A laminectomy was performed on 7/3/97, which alleviated Pltf.'s back pain, but left her permanent neurological damage to her left leg. Deft. claimed that Pltf. had pre-existing back problems. Demonstrative evidence: sales receipt for treadmill; photographs of treadmill; owner's manual for treadmill; blow-ups of operating instructions on treadmill; medical records. Specials: $73,430. No offer; demand: $600,000; amount asked of jury: $918,430. Jury deliberation: 2 1/2 hours.

Pltf. Experts: Dr. William Barrick, orth. surg., Poughkeepsie; Jay Rosenblatt, treadmill repair, Harriman.Deft. Experts: Dr. Mary Godesky, orth. surg., Kingston; Ralph Packard (Sears employee), treadmill repair, Fishkill.

XI/29-18 PRODUCT LIABILITY - OBJECT THROWN BY LAWNMOWER - DEFENSE VERDICT

Paula Schroeder v. Aircap Industries, Corp., 89 Civ. 2993. 3-day trial verdict 11/12/93 Judge Allyne R. Ross, Eastern District.

VERDICT: Defense verdict (6/0). Post-trial motions were denied. Jury: all male.

Pltf. Atty: Edward J. Sanock, Jr. of Friedman, Rogovin, Farmer & Friedman, ManhattanDeft. Atty: Thomas P. Lynch of Lynch, Rowin, Novack, Burnbaum & Crystal, Manhattan

Facts: Pltf., a 58-year-old homemaker, was injured on 7/30/88 when she was struck in the heel by a metal object thrown back from her lawnmower, a Mastercut Model KV 21-89 which was manufactured by Deft. Pltf. contended that the mower was defective because it did not have a proper guard to prevent objects for being thrown from the back of it. Pltf.'s expert testified that the trailer shield, which blocks debris from coming from beneath the mower, should have been made of steel and should have been curved inward.

Deft. denied the causation of Pltf.'s injuries, contending that she was injured when she stepped on a nail. Deft. contended that if a piece of metal was picked up by the mower, it would have clanked loudly against the blades before it was ejected. Pltf. testified that she did not hear any noises before the accident. Deft.'s expert testified that the shield was made of vinyl and rubber composite designed to absorb the impact of whirling debris under the mower. He further testified that if the shield was curved inward, the grass clippings and other material could build up under the mower and damage it.

Injuries: fractured os calcis requiring open reduction and internal fixation. Demonstrative evidence: videotape of tests on the mower; lawnmower; metal objects. No offer; demand: $350,000; amount asked of jury: $750,000. Jury deliberation: 1 1/2 hours. Carrier: CIGNA. Pltf. Experts: John Sevart, engineer, Wichita, Kansas; Dr. Frank Oliveto, orth. surg., East Setauket. Deft. Expert: Gunther Plamper, engineer, Cleveland, Ohio.

BREACH OF CONTRACT PROCEEDING -- HOMEOWNERS ASSOCIATION SUES MANAGING AGENT FOR FAILURE TO PROPERLY MAINTAIN CO-OPERATIVE BUILDING

270 North Broadway Homeowners Corp. v. 270 North Broadway Management Corp.

6-day trail June 7, 1987. Supreme Court New York County

Judge: Hon. Martin B. Stetcher, J.S. C.

VERDICT: Verdict for the Pltf. in the amount of $97, 000

Pltf. Atty: Thomas P. Lynch, Esq., New York, NY

Deft. Atty: Name withheld

Facts: Pltf., The Homeowners Association of a co-operative building in Yonkers, New York, sued its managing agent for failure to collect rents and co-op maintenance charges form the building's tenants, causing the mortgage to go into default and foreclosure proceeding to be brought against the building. Defts. claimed that they could not be held responsible for tenants' failure to pay the rent and that the Homeowners Association should not benefit from the failure of its members to pay their dues and rents. The Homeowners Association responded that it was a separate entity, many of the homeowners who had not paid their or co-op fees had moved out of the apartment and that managing agent had taken no steps to bring proceedings to attempt to collect the arrearage from the nonpaying members. The Court found that the managing agent breached its contract with the Homeowners Association in that it failed to attempt to collect rents and co-op fees and failed to maintain adequate books and records to document collections that it had received, and failed to pay the mortgage, even in the months when it had collected sufficient rents and fees to make the mortgage payment. Since the foreclosure proceeding had been resolved short of the building being sold and the mortgage was reinstated prior to trial, the Court limited damages to the out-of-pocket fees and expenses that the Homeowners Association had incurred in reinstating the mortgage and related fees and costs. Demonstrative evidence: contracts between the parties, books and records of the Homeowners Association and managing agent, the income tax returns of all parties and records of the managing agents. Offer: $15,000; demand: $100,000.

ACCOUNTING PROCEEEDING -- EMPLOYEE CLAIMS TO BE PARTNER IN REAL ESTATE BUSINESS AND CERTIAN REAL PROPERTY

Ely Azoulay v. William F. Cassin, WC Realty 25-day trial on liability Verdict 12/24/84 5-day trial on damages Decision March 1986 Westchester County Supreme

Judge: Hon. William Walsh, J.S.C.

Verdict: Defense verdict on all claims of partnership interest in WC Realty and all properties except 270 North Broadway. With respect to that property, the jury found that plaintiff had a one-sixth interest in the property. Subsequently, the Appellate Division 2nd Department reversed the jury's finding and dismissed the complaint. (512 NYS 2d 900, 128 A.D. 2d 660 (2d Dept 1987)

Pltf. Atty: Arnold Roseman, Esq., New York, NY

Deft. Atty: Thomas P. Lynch, Esq. of Lynch Rowin Burnbaum & Crystal, Manhattan

Facts: Pltf., an employee of Deft.'s real estate company, WC Realty, claimed that he was a partner in the real estate business and an owner in 29 properties that the real estate company had developed. Deft. denied that Pltf. was a partner in the overall business, admitted that he was a partner in 3 of the 29 buildings the business developed but that Deft. W.F. Cassin had purchased his interest in those properties. Pltf. claimed that his contribution to the real properties was his work and effort in the construction and rehabilitation of the properties, as well as certain cash contributions that he made for various capital contributions. Deft. responded that Pltf. was compensated for his time and effort, and that Pltf.'s ownership in the properties which Deft. acknowledged his ownership interests were fully documented by contracts of sale, deeds, etc. The other properties for which Pltf. claimed an interest, no such documentation existed. The Court denied Deft.'s motion to dismiss the complaint at the conclusion of Pltf.'s evidence and grounds and the statute of frauds. The jury found that Pltf. was not an owner in the real estate company, WC Realty, but found that he had ownership interest in one of the properties that WC Realty had developed, 270 North Broadway, Yonkers, NY. The jury evaluated that interest at approximately 16%. Subsequently, the value of that ownership interest was assessed at $56,000. This issue was tried before a Judicial Hearing Officer, William Zeck, without a jury. Deft. appealed the jury's determination. On March 17, 1987, the 2nd Department reversed the Court's refusal to dismiss Pltf.'s claim as to specific realty on the grounds that no contract existed to transfer any real estate interest and dismissed the complaint. Demonstrative evidence: contracts evidencing the sale of the properties developed by WC Realty, income tax returns of all parties. Offer: 0; demand: $2,000,000. Jury deliberation: 2 days.

FRAUD PROCEEEDING -- FLYERS OF AIRLINE CLAIM FRAUD IN AREA TO DISCLOSE ALIENABILITY OFLANDING RIGHTS

Graham v. Resorts International, 7-day trail 6/12/84 Decision August 1984 New York County Supreme

Judge: Hon. Amos Bowman, J.S. C.

Verdict: Defense verdict on all claims.

Pltf. Atty:James Kearney, Esq., New York, NY

Deft. Atty: Thomas P. Lynch, Esq., New York, NY

Facts: Pltfs., Mr. and Mrs. John Graham, invested in a business known as Island Helicopters. Island Helicopters entered into a contract with Resorts International to purchase an airline that Resorts owned known as Antilles Air Boats, a regional airline which maintained routes between the American Virgin Islands and Puerto Rico. Included in the assets of Antilles Air Boats was the landing rights issued by the Virgin Island Port Authority (VIPA). The landing rights was a renewable license which VIPA issued Antilles and by their terms were not transferable without VIPA's permission. Island Helicopters wanted the landing rights from Antilles Air Boats to Island Helicopters. Pltfs. Further argued that Resorts had superior knowledge as to the political climate surrounding the request to transfer the landing rights form Antilles to Island Helicopters. Resorts further argued that at the closing of the sale between Antilles and Island Helicopters, Island Helicopters specifically waived the condition that the approvals be obtained prior to closing. Resorts further argued that if the Grahams were misled by anyone, they were misled by Island Helicopters and principals of Island Helicopters. Resorts had no duty to inform the Grahams as to the alienability of the VIPA landing rights. Justice Bowman, sitting without a jury, agreed with Resorts' argument and dismissed the Graham's complaint. Demonstartive evidence: contracts between Antilles and Island Helicopters, newspaper accounts as to the political climate concerning the termination of the Antilles Air Boats landing rights. Offer: $75,000; demand: $1.5 Million, plus punitive damages.

STORE ACCIDENT -- DOOR -- CLAIM OF DEFECTIVE DOOR-CLOSING MECHANISM AND DOOR SADDLE -- DEFENSE VERDICT

Joan and Charles Ray v. Sears Roebuck 101365/97 4-day trial Verdict 10/4/00 New York Supreme

Judge: Sheila Abdus-Salaam

Verdict:Defense verdict (6/0). Jury: 5 Mail, 1 female.

Pltf. Atty: Jason S. Shapiro of Edward R. Young & Associates, West Babylon

Deft. Atty: Thomas P. Lynch of Lynch Rowin LLP, Manhattan

Facts: Pltf., a 30-year-old homemaker, claimed that in September 1996, she was hit by the ladies' room door at Deft.'s store in Massapequa, which caused her to trip over the door saddle. Pltf. claimed that the door's mechanism was defective in that it closed too quickly and that the saddle, which was 1 inch high was improperly installed and maintained. She also calmed that the saddle was not beveled or rounded. Deft. denied that the door or saddle were defective, and claimed that the Pltf. fell due to the fact that she suffered from multiple sclerosis.

Injuries: torn meniscus with chondromalacia. Pltf. underwent an arthroscopic surgery to the knee. She sustained a subsequent fall 1year after the accident, and she claimed that the fall was due to the weakened condition of the knee. As a result of the second fall, Pltf. underwent a second arthroscopic procedure wherein it was discovered that she had a partial tear of the meniscus. The initial arthroscopic procedure confirmed that the meniscus was not torn. She sometimes wears a brace. Deft. argued that Pltf.'s injury was overstated and that the arthroscopic surgery was not necessary. It claimed that although some synovial plica was removed during the procedure, the amount removed was so minimal that he lab analysis failed to detect it. Deft. argued that the Pltf.'s injury was related to multiple sclerosis and not the accident. Demonstrative evidence: MRI reports; photographs of the entrance and the saddle. Offer: $15,000; demand: $100,000. Jury deliberation: 45 minutes.

Pltf. Experts: Scott Workman, construction supervisor, Dix Hills; Dr. Burt Horowitz, orth. surg., Bay Shore.

Deft. Expert: Dr. Murray Burton, orth. surg., Manhattan.

BREACH OF CONTRACT-ACTION TO ENFORCE PROVISION IN LEASE GRANTING TENANTS OPTION TO PURCHASE BUILDING, OR IN THE ALTERNATIVE, THE RETURN OF A DOWN PAYMENT. CROSS-CLAIM FOR USE AND OCCUPANCY OF BUILDING.

Fuchs v. Estate of Arthur Edell, 6340/91, 2-day trial, 9/23/02, Decision, 9/26/02.

Judge: The Honorable Herbert A. Posner, JHO, Supreme Court, Kings County.

Verdict: Defense verdict on plaintiffs' claim seeking specific performance of lease provision. $42,000 Verdict in favor of defendants on counterclaim.

Pltf. Atty: Alan Trachtman, Esq., New York, NYDeft. Atty: Thomas P. Lynch, Esq., Lynch Rowin LLP, New York, NY

Facts: Pltfs. allege that on or about July 1, 1987, pltfs. entered into a lease agreement with deft's. decedent, Arthur Edell, for the occupation of 308 Atlantic Avenue, Brooklyn, NY, a commercial building. Pltfs. are in the business of buying and selling antique furniture. Pltfs. sought to use the building as a warehouse and factory for their furniture. The lease in question was filed in the Kings County Clerk's Office six months after pltfs.' decedent died.

The lease contained a provision whereby all rent was forgiven for the first twenty months of the lease. The lease further provided that the pltfs. would have an option to purchase the building for the sum of $120,000. In a prior decision, the court granted defendant's motion for summary judgment dismissing pltfs.' claim for specific performance. Defts. had obtained an appraisal of the building, at the time of decedent's death, for $285,000. Defts. argued that the lease was fraudulent in that the decedent had not signed the lease. Moreover, defts. argued that if the lease was valid, the clause concerning the option to buy was inserted in the lease after the lease had been executed. When the lease was filed in the Kings County Clerk's Office, pltf., Thomas Fuchs, inserted the initials of deft's. decedent next to the clause setting forth the option agreement. Fuchs admitted, on cross-examination, that he forged the decedent's initials and did so because the clerk would not accept the deed without the initials on the document.

Defts. asserted that pltfs. occupied the premises for the period of January, 1998 (the date of decedents death) to October, 1994. Pltfs. contended that they occupied the premises only until January, 1991, when Building Dept. and Fire Dept. ordered them to vacate the premises.

Demonstrative evidence: Contracts between the decedent and pltfs.; photographs of the 308 Atlantic Avenue; the certificate of occupancy and related documents for 308 Atlantic Avenue; photographs of the building in 1987; photographs of the building in 1988; photographs of the building in 1994; stipulations between counsel concerning the release of certain title documents; cease and desist orders from the Building Dept. and Fire Dept. concerning the occupancy of the building; charts showing expenses incurred by estate for real estate taxes, insurance, etc.; deeds to the property in 1968; deed to the property from the estate to subsequent purchaser in 1994. There were virtually no settlement discussions.

BREACH OF CONTRACT/PROPERTY DAMAGE- NEGLIGENT CONVERSION FROM AN OIL TO GAS HEATING SYSTEM -JUDGMENT FOR DEFENDANT; DEFENDANT AND THIRD PARTY DEFENDANT SETTLED CLAIM FOR ATTORNEY'S FEES PRIOR TO COMMENCEMENT OF TRIAL.

Joseph L. Seawright v. Sears, Roebuck and Co. v. Big Apple Plumbing and Heating, Inc., Index No. 57157 QCV 2002, 2-day trial. Judgment for Defendant, 4/29/03, Judge Anthony V. Gazzara, Civil Court, Queens County.

JUDGMENT: For Defendant. Defendant and third party plaintiff settled contractual claim for attorney's fees prior to commencement of trial.

Pltf. Pro Se: Joseph L. Seawright

Deft. and Third Pty Pltf. Atty: Lynch Rowin LLP, New York, New York, for Sears, Roebuck and Co.

Third Pty Deft.: Scott Kultun, Esq., Frankfort & Kultun, Deer Park, New York, for Big Apple Plumbing and Heating, Inc.

Facts: In December 2001, Pltf. contracted with Deft. Sears, Roebuck and Co. to have an oil heating system at his premises converted to a gas heating system. Deft. Sears, Roebuck and Co. retained Third Pty Deft. Big Apple Plumbing and Heating, Inc. to perform the conversion at Pltf.'s premises. On December 26, 2001, Pltf.'s oil heating system was removed from the premises. Pltf. claimed during the removal of the oil system Deft. negligently caused oil damage and water damage to Pltf.'s rug, couch, video equipment, and other personal property. The gas heating system was installed on December 27, 2001. The following evening Pltf. complained to Con Edison that he smelled gas at the premises. Con Edison inspected Pltf.'s premises and turned off the gas after it determined that there was a gas leak at the premises. Pltf. hired a plumber to perform emergency work that evening and Con Edison turned the gas back on the following morning. Pltf. claimed that the gas leak was caused by Deft.'s negligent installation of the gas heating system. Pltf. further claimed that Deft. failed to obtain and file the necessary permits for the oil to gas conversion. In addition, Pltf. claimed that the gas heating system was not operating properly and that the manufacturer had recalled the system. Pltf. claimed $25,000 in damages.

Deft. denied that any property damage resulted from the removal of the oil heating system. Deft. presented a job completion form signed by Pltf., which stated that the work at Pltf.'s premises had been satisfactorily completed. Deft. also argued that Pltf. had not repaired or replaced the allegedly damaged property and that he did not have proper receipts or estimates for the allegedly damaged property.

In addition, Deft. denied that it negligently installed the gas heating system. Deft. argued that Pltf. had preexisting gas leaks in gas lines which served appliances throughout Pltf.'s premises and were unrelated to the gas heating system. Deft. argued that it informed Pltf. of these preexisting leaks on the date it installed the gas system and Pltf. signed a contract to have these preexisting gas leaks repaired. Pltf. admitted that he signed the contract and subsequently cancelled the contract. Deft. further argued that it could not obtain and file the proper permits because of the preexisting gas leaks at Pltf.'s premises. Finally, Deft. argued that Pltf. never made any complaints regarding the operation of the system. Deft. further argued that the recall for the gas system involved a simple replacement part that did not effect the performance of the system.

Demonstrative Evidence: Contract between Pltf. and Deft. for oil to gas conversion; Job Completion Form; Contract between Pltf. and Deft. to repair preexisting gas lines.

Pltf. Expert: Glen Smith, Master Plumber, Bayside, New York.Deft. Expert: Kenneth Cavaliere, Master Plumber, Ridgewood, New York.

Past Results do not guarantee future results