What's New

March 31, 2006

Lynch Rowin LLP is pleased to announce that Karen L. Kirshenbaum and Patrick J. Comerford, both of whom have been associates, have become partners in the firm. Ms. Kirshenbaum is a graduate of The National Law Center of George Washington University and has a B.A. with distinction from the University of Michigan. Mr. Comerford received his J.D. from Fordham University School of Law and his bachelors degree from the College of the Holy Cross.

We are also pleased to announce that Nadine Yavru-Sakuk has joined us as an associate. Ms. Yavru-Sakuk is a graduate of Pace University School of Law and Lafayette College.

February 9, 2006

Lynch Rowin LLP’s client Sears, Roebuck and Co. was successful in obtaining summary judgment dismissing a personal injury action brought against it. Medina v. Sears, Roebuck and Co., Supreme Court, Westchester County (14280/04).

Plaintiff Daisy Medina claimed that while entering the Sears store at the Kings Plaza (Brooklyn) Shopping Center, she slipped on a steel ramp which had become wet with rain. Justice Aldo A. Nastasi held that Sears had met its burden on the motion by submitting an expert affidavit stating that the raised “diamond-T” surface of the ramp did not constitute a dangerous condition. The judge held that the plaintiff could not raise the issue of the absence of handrails, since plaintiff’s bill of particulars had not made reference to handrails, and that in any event there was no admissible evidence that the lack of handrails had caused plaintiff to slip. Plaintiff’s motion for leave to reargue was denied.

Marc Rowin and Jennifer Chavez represented Sears.

October 24, 2005

In the lengthy decision, Pichardo v. C.S. Brown Company, Inc., Index No. 17191/03, Justice Betty Owen Stinson, Supreme Court, Bronx County, granted Lynch Rowin client, MTD Products, Inc., summary judgment dismissing plaintiff's complaint and co-defendant's cross-claims. Plaintiff Luis Pichardo claimed that he was injured when he slipped and fell while operating a snow-thrower that MTD had manufactured. Specifically, Pichardo alleged that he left the operator's position on the machine and walked around the front of the machine to remove certain debris that was blocking his path. As he walked past the machine's discharge chute, he slipped and fell and his hand came in contact with the rotating impeller blade, causing his injuries. Pichardo claimed that the machine failed to shut down within five seconds, as it was designed to do, when he left the operator's position and released the machine's operating controls. During discovery it was disclosed that, shortly after Pichardo had purchased the machine, it had been returned to the retailer, C.S. Brown and Co., for repairs, and the retailer had repaired the machine using an improper, non-standard, replacement drive belt, which MTD demonstrated caused the machine to operate improperly. MTD moved for summary judgment on the principles set forth by the Court of Appeals in Robinson v. Prentice, Inc. 49 N.Y.2d 471 (1980)

Pichardo alleged that the snow-thrower was defectively designed in that MTD designed it in a manner which allowed its safety features to be easily circumvented and that the warnings, as written, did not sufficiently warn the user, or repair person, of that danger of using improper belts. Justice Stinson gave these arguments short shrift, holding that the machine was not designed in such a way as to facilitate the circumvention of its safety features and the warnings on the machine and in the manual were adequate as a matter of law. In so doing, Justice Stinson relied on the principles of Robinson.

The action continues against co-defendant, C.S. Brown, Inc. (Plaintiff has filed a notice of appeal of Justice Stinson's order dismissing plaintiff's complaint against MTD.) Tom Lynch and Pat Comerford represented MTD in the matter.

September 30, 2005

Lynch Rowin attorneys Tom Lynch and Patrick Comerford achieved a substantial settlement for a New York City fire fighter and his wife in an action styled McKiernan v. 368-372 Convent Avenue, Index Nos. 112305/00, 123927/99, during trial in Supreme Court, New York County. In that matter, fire fighter McKiernan alleged that he was injured when he fell through a defective stairway while fighting a fire at a building owned and operated by defendant 368-72 Covent Avenue. The case is significant in that in order to proceed to trial McKiernan had to demonstrate that his accident fell under one of the exceptions to the "Fire Fighter's Rule," a common law and statutory rule which bars firefighters from suing for injuries sustained as a result of dangers which are inherent to firefighting. Initially, Lynch Rowin attempted to locate building and fire code violations on the building prior to the date of the fire. Defendant had claimed there were none and initial searches of the New York City building and Fire Department records seemed to confirm defendant's position. However, Lynch Rowin legal assistant, Silvia Nardi, while performing a computer search of New York City's on line records, was able to discover a number of violations on the specific staircase which predated the fire, but which did not appear in a traditional search of New York City records and record rooms. With these record violations in hand, the case settled during jury selection for $1.5 million dollars.

September 11, 2003

Lynch Rowin LLP's client, Norman Dansker, was the only bank director defendant to emerge victorious against the Federal Deposit Insurance Corporation on a motion for judgment as a matter of law following a three week long jury trial. FDIC v. Bober, 2003 WL 21976410 (S.D.N.Y. 2003). The FDIC had sued Dansker and other former directors of The First New York Bank for Business, which failed in 1992, charging that they had been negligent and had breached their fiduciary duties in approving a series of insider loans, some to entities controlled by Dansker and some to entities controlled by director Sant Singh Chatwal. The FDIC alleged that the Bank had lost $27.5 million on the "Dansker Loans" and $9.3 million on the "Chatwal Loans." The trial, held in April and May 2003 before Judge John S. Martin, Jr. in the United States District Court for the Southern District of New York, ended in a hung jury. Thereafter, the director defendants renewed their motions for judgment as a matter of law. Dansker argued that he was not liable for the "Dansker Loans" as a matter of law, because he had fully complied with the FDIC's Regulation O, which requires a bank director who has an ownership interest in a borrower to abstain from voting on or participating in the discussion of a loan to that borrower.

Judge Martin granted Dansker's motion and dismissed as to him "the claims relating to entities which he controlled." The motions of all of the other defendants were denied. Judge Martin's decision was featured as a "Decision of Interest" in The New York Law Journal on September 4, 2003. Marc Rowin represented Dansker.

A two day bench trial in a property damage case ended in a defense verdict in favor of Lynch Rowin LLP's client, Sears, Roebuck and Co. Seawright v. Sears, Roebuck and Co., Civil Court, Queens County, Index No. 57157 QCV 2002. Plaintiff alleged that during the course of converting his home heating system from oil to gas, Sears' contractor, third-party defendant Big Apple Plumbing & Heating, had caused oil and water damage to furniture and property and had created a gas leak. Sears denied any liability. In support of its contention that plaintiff's property had not been damaged, Sears offered the job completion form which plaintiff had signed, which stated that the work had been satisfactorily completed. In addition, Sears argued that the gas leak had existed before it did any work at plaintiff's home, buttressing its argument with a contract which plaintiff had signed to repair the preexisting leaks. Judge Anthony V. Gazzara entered judgment in Sears' favor. Sears' claim against Big Apple for contractual indemnification was settled before trial, with Big Apple agreeing to pay Sears' attorneys fees.

June 25, 2003

Reversing a decision of Supreme Court, New York County, the Appellate Division, First Department has dismissed on statute of limitations grounds a fraudulent conveyance action brought against Lynch Rowin LLP's clients. Avalon LLP v. Coronet Properties Co., 2003 NYSlipOp 14814, 2003 WL 21321856 (1st Dept. 2003).

In May 2001, Avalon, a judgment creditor of Coronet Properties Co., sued to set aside payments made to several attorneys and other professionals. In April 1994, Coronet had entered into an agreement with Wellington Sales Corp. by which, in return for Wellington's assuming Coronet's obligation to pay fees owed to the professionals by Coronet, Coronet assigned to Wellington the right to negotiate a settlement of several lawsuits brought against Coronet by the Federal Deposit Insurance Corporation and to keep the settlement proceeds which otherwise would have gone to Coronet. In September 1996, the settlement with the FDIC was closed and Wellington paid the professionals and kept the net settlement proceeds.

Avalon claimed that the payments made to Wellington and the professionals pursuant to the assignment agreement were fraudulent because the principal of Wellington was a relative of and counsel to the principal of Coronet.

Wellington and its principal, represented by Lynch Rowin, moved for summary judgment, arguing that Avalon's May 2001 suit was untimely because the six year statute of limitations for constructive and actual fraud began to run in April 1994, when the assignment agreement was signed. In addition, because Avalon had known of the transfers in 1996 and had received a copy of the assignment agreement in April 1999, the CPLR 203(g) alternative two year discovery statute of limitations for actual fraud was unavailable to extend Avalon's time.

In response, Avalon argued that the six year statute of limitations began to run from the payments made in September 1996 and that the action was thus timely.

The Appellate Division found that Supreme Court had erred in denying Wellington's motion, holding that the April 1994 assignment agreement triggered the running of the six year statute of limitations. "[T]he purported fraudulent conveyance was final and the challenged assignment rights vested on April 14, 1994, more than six years prior to commencement of this action in 2001. The distribution of the proceeds some two years after assignment did not create the assignee's rights to payment and could not, therefore, re-start the limitations period." The two year discovery statute of limitations was not available to Avalon, the court held, because Avalon was aware of the alleged fraud more than two years before the action was commenced.

Marc Rowin and Karen L. Kirshenbaum represented Wellington and its principal.

The motion of Lynch Rowin LLP's client, Sears, Roebuck and Co., for summary judgment dismissing the personal injury case of a customer who was injured while walking backwards down the aisle of the Sears store in Bay Shore, New York, was granted on June 12, 2003. Minafo v. Sears, Roebuck and Co., Supreme Court, Suffolk County, Index No. 23701/99.

Plaintiff, a school teacher, alleged that she was injured while pushing a baby stroller. She testified at deposition that as she was walking down an aisle, she saw some merchandise boxes on the floor blocking her way. Claiming that she was unable to turn the stroller around because the aisle was too narrow, plaintiff reversed direction by backing the stroller up the aisle, although she was not looking behind her as she walked backwards. She struck a display shelf and injured her shoulders. Plaintiff underwent arthroscopic surgery of both shoulders, which, she alleged, left her permanently disabled and unable to return to her teaching job. She sought $15 million in damages ($10 million of which was for lost wages and pension) and $3 million in settlement.

Justice William L. Underwood, Jr. ruled that the "presence of a shelf in a department store is readily observable and does not constitute a dangerous condition and, as such, the defendant did not have a duty to warn the plaintiff." Therefore, Sears had "made a prima facie showing of entitlement to judgment as a matter of law . . . ."

Thomas P. Lynch and Karen L. Kirshenbaum represented Sears.

The motion of Lynch Rowin LLP's client, Sears, Roebuck and Co. for an order imposing sanctions upon a plaintiff for failing to provide discovery was granted by Justice Simeon Golar of Supreme Court, Queens County on June 6, 2003. Darmatzis v. Sears, Roebuck and Co., Index No. 27709/00.

Plaintiff Anastasia Darmatzis claimed that she tripped and fell in a pothole in the parking garage of the Sears store in Garden City, New York. During the course of discovery, plaintiff produced several photographs of the accident scene and a photograph of plaintiff, which had been cropped to eliminate the date. At various times in March and May 2002, Sears requested an uncropped version of the photograph of plaintiff, authorizations to obtain the medical records of Dr. Xethalis, one of plaintiff's treating physicians, W-2 forms from 1999 to date and the full name, address and telephone number of "Mr. Carter," a private investigator retained by plaintiff's counsel whom plaintiff testified had taken the photographs of the accident scene.

On June 3, 2002, following a conference call with the court, the parties entered into a stipulation in which plaintiff agreed to provide the uncropped photograph, the W-2 forms and authorizations for Dr. Xethalis' records by July 2, 2002. Both during the conference call and in the stipulation, plaintiff's counsel represented that photographs of the garage had been taken by plaintiff's brother-in-law, not by a private investigator, allegedly rendering Sears' request for information about the investigator irrelevant. However, when plaintiff's brother-in-law was deposed in August 2002, he denied having taken any of the photographs.

The uncropped photograph was produced early in 2003 in response to Sears' motion for sanctions; the other requested materials were not produced. The court found that "as a result of the conduct of [plaintiff's] counsel, Sears has been unable to depose the person who took the photographs of the pothole, and has been unable to engage in discovery concerning Dr. Xethalis or [plaintiff's] alleged lost wages. In view of this evidence, the court finds that [plaintiff's] counsel has wilfully failed to disclose information that ought to have been disclosed." As a result, the court precluded plaintiff from presenting any evidence regarding her alleged lost wages or the treatment she received from Dr. Xethalis. The court also struck plaintiff's note of issue so that Sears could depose "Mr. Carter," the private investigator.

Finally, the court found that plaintiff's counsel's representation that photographs had been taken by plaintiff's brother-in-law was "misleading" and "frivolous within the meaning of 22 NYCRR 130-1.1." Justice Golar scheduled a hearing to determine the amount of sanctions to be imposed upon plaintiff's counsel.

Thomas P. Lynch and Jennifer T. Perez represented Sears.

A motion for summary judgment by Lynch Rowin LLP's client, AT&T Corp., resulted in the dismissal of a suit brought against it under the federal Telephone Consumer Protection Act of 1991 ("TCPA") (47 U.S.C. §§227). Leyse v. AT&T Corp., Supreme Court, New York County, Index No. 602127/02 (May 27, 2003).

The TCPA regulates telephone solicitations and prohibits any calls to a residential telephone number by means of a prerecorded message without the prior express consent of the person called. There is a private right of action to redress violations of the TCPA, but suit must be brought in state court. The Federal Communications Commission ("FCC") is authorized to issue regulations exempting from the statute certain telephone calls which the FCC determines do not "include the transmission of any unsolicited advertisement." Pursuant to that grant of rulemaking authority, the FCC promulgated a regulation exempting from the TCPA calls made to a person with whom the caller has an established business relationship.

Leyse brought suit in Supreme Court, New York County, alleging that AT&T had violated the TCPA by making a telephone call to his home on April 18, 2002 by means of a prerecorded message. At the time of the call, Leyse was an AT&T customer. Acknowledging that the call was permitted by the FCC regulation, Leyse sought a declaratory judgment that the FCC regulation was void as being beyond the scope of the rulemaking authority delegated by Congress and that he was thus entitled to seek statutory damages.

In seeking dismissal of the action, AT&T argued that the state court had no jurisdiction to invalidate a federal regulation. Under the Administrative Orders Review Act (28 U.S.C. §§2341 et seq.), exclusive jurisdiction to determine the validity of all final orders of the FCC has been granted to the federal courts of appeals. The United States Supreme Court has repeatedly held that substantive regulations such as that challenged by Leyse are final orders which must be reviewed in one of the courts of appeals. F.C.C. v. ITT World Communications, Inc., 466 U.S. 463 (1984); Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407 (1942). Finally, the New York Court of Appeals has held that the courts of this state have no jurisdiction to invalidate federal regulations. Wasservogel v. Meyerowitz, 300 N.Y. 125, 89 N.E.2d 712 (1949).

Justice Joan A. Madden agreed with AT&T's arguments, held that "this court is without jurisdiction to render the declaration requested by plaintiff" and dismissed the action. Marc Rowin represented AT&T.

May 16, 2003

In two recent decisions, personal injury actions against Lynch Rowin LLP's client, Sears, Roebuck and Co., were dismissed when Sears' motions for summary judgment were granted. Cynthia Smith v. Sears, Roebuck and Co., Civil Court, Bronx County, Index No. 15822/00; Lynette Jagdeo v. Sears, Roebuck and Co. , Supreme Court, Queens County, Index No. 18334/98.

Smith arose out of an automobile accident between a car driven by plaintiff and a van driven owned by Sears and driven by a Sears employee. Following the completion of discovery, Sears moved to dismiss the action on the grounds that plaintiff's injuries did not meet the "no-fault threshold" set in Insurance Law §5102(d), which requires that a plaintiff plead and prove that she suffered a "serious injury" in an automobile accident in order to recover damages.

In support of its motion, Sears submitted medical evidence which demonstrated that plaintiff's lumbrosacral sprain had been fully resolved and that plaintiff had not been disabled from working or performing any daily activities. After reviewing this evidence in detail, Judge Alison Y. Tuitt concluded that Sears had met its burden of coming forward with evidence that plaintiff had not suffered a serious injury, thus requiring plaintiff to come forward with evidence sufficient to raise a material issue of fact. Finding that the affidavits submitted by plaintiff's doctors failed to state the objective tests performed and relied upon inadmissible evidence, Judge Tuitt concluded that plaintiff had failed to meet her burden and dismissed the action.

The plaintiff in Jagdeo claimed to have slipped and fallen while walking on a parking lot ramp near the Sears store in the Lake Success Shopping Center. Although plaintiff alleged that the ramp was slippery because it was coated with silicon or glossy yellow paint, she testified at deposition that she did not know what had caused her fall.

Justice Arnold N. Price found that Sears and the shopping center owner were entitled to have the action dismissed, as plaintiff had failed to demonstrate a triable issue of fact. First, absent expert testimony, the mere fact that the ramp had been painted with glossy paint did not prove that the ramp was slippery. In addition, if plaintiff slipped because the ramp was coated with silicon, there was no basis for imposing liability upon Sears or the shopping center, since there was no evidence that they had notice of the condition. A statement allegedly made by a Sears employee to plaintiff that he knew that skateboarders sprayed silicon on the ramp was inadmissible, since there was no evidence that the employee had the authority to bind Sears. While employees of Sears and the shopping center testified at deposition about the skateboarders, they had acquired their knowledge after the plaintiff was injured.

Marc Rowin and Patrick J. Comerford represented Sears in the Smith and Jagdeo cases.

On April 7, 2003, the Appellate Division, Second Department, Doyle v. AT&T Corp., 2003 WL 1825555 (2d Dept. 2003), affirmed the decision of Supreme Court, Kings County which dismissed the action brought by Margarite Doyle against AT&T Corp. and West Corporation. Because plaintiff had only been charged the rates set forth in tariffs which AT&T had filed with the Federal Communications Commission, plaintiff's claim that she had been overcharged for calls to the United Kingdom was properly dismissed as barred by the "filed tariff doctrine." Plaintiff could not claim that she had been defrauded by a representation that rates for UK calls would never be increased, because the tariff "explicitly provided that any statements made to the customer did not constitute warranties" and the tariff "could be altered by a subsequent tariff filing." Since plaintiff is presumed to have knowledge of this information, she could not have been misled.

Marc Rowin represented AT&T and West.

December 27, 2002

On December 10, 2002, New York City Civil Court, Bronx County, granted the motion of Lynch Rowin LLP's client, Sears, Roebuck and Co., for summary judgment dismissing Yvette Rodriguez's "slip and fall" action. Rodriguez v. Sears, Roebuck and Co., Index No. 921/01.

Plaintiff alleged that she had slipped on a colorless oily substance on the floor of the Sears store in the Cross County Shopping Center in Yonkers, New York. In moving for summary judgment, Sears demonstrated that it had not had either actual or constructive notice of the presence of the substance. The Sears employee who responded to the accident testified at her deposition that she was unable to determine the source of the substance. Sears' asset protection manager submitted an affidavit stating that a search of Sears files revealed no other accidents involving oily substances on the date of plaintiff's accident.

Judge Howard H. Sherman held that, in the face of this proof, plaintiff had failed to meet her burden of demonstrating that Sears had actual or constructive notice. The court rebuffed plaintiff's effort to create a triable issue of fact by submitting what it claimed was a Sears safety manual and by arguing that Sears had failed to provide all requested discovery, on the grounds that the purported safety manual had not been authenticated and that, by filing a note of issue which certified that all discovery had been completed, plaintiff had waived her right to further discovery.

Thomas P. Lynch represented Sears.

Supreme Court, Westchester County on November 18, 2002 granted summary judgment dismissing the negligence action brought by Melanie Silva against Sears, Roebuck and Co. Silva v. Sears, Roebuck and Co., Index No. 2143/00.

Silva, who was seven years old at the time of the incident, was shopping in the girls department of the Sears store in the Cross County Shopping Center in Yonkers, New York with her mother and older sister, when she dropped a toy she had been carrying. When she stood up after retrieving the toy, she struck her left eye on the horizontal arm of a clothing display rack. She contended that the display rack was defective because the horizontal arm was too low.

In moving for summary judgment, Sears relied upon its accident report, which indicated that there was nothing defective about the display rack. Justice Louis A. Barone treated the accident report as a business record and held that through it and a record search indicating that no similar accidents had occurred in the two years prior to plaintiff's accident, Sears had met its burden of showing that there was no defect.

Plaintiff argued that liability could be found on the theory of res ipsa loquitor. However, the court found that res ipsa could not be invoked because there was no evidence of a defect and no expert testimony had been submitted by plaintiff to indicate that the type of rack used should not have been in the girls department.

Marc Rowin represented Sears.

October 24, 2002

On September 26, 2002, after a two day bench trial before Honorable Herbert A. Posner, Thomas P. Lynch, representing the defendant, obtained a judgment denying plaintiff's claim for specific performance of a provision of a commercial lease, together with judgment in the amount of $42,000 favor of defendants on their counterclaim. Fuchs v. Estate of Arthur Edell, Supreme Court, Kings County, Index No. 6340/91. Please refer to the "Trials" section of the website for details.

Two personal injury actions against Lynch Rowin LLP's client, Sears, Roebuck and Co., were dismissed in September 2002 when Sears' summary judgment motions were granted.

In Esteves v. Sears, Roebuck and Co., Supreme Court, Nassau County (Index No. 15599/00), the plaintiff claimed that he fell while riding an escalator at the Sears store in the Green Acres Shopping Mall when he lost his balance after there was a "little jolt" on the handrail. Plaintiff, who was 87 years old at the time, suffered a fractured skull and subdural hematoma, which left him comatose. Plaintiff was hospitalized for four months.

In granting summary judgment dismissing the suit, Justice Kenneth A. Davis held that plaintiff had failed to rebut Sears' prima facie showing that it lacked notice of any defect in the escalator. The escalator service records submitted by Sears contained no evidence from which it could be shown that Sears "knew or should have known, of any specific engineering malady, handrail defect, or maintenance issue which was likely to precipitate, at the time in question, the little jolt identified by the plaintiff as the underlying cause of his accident . . . ." In addition, plaintiff failed to raise a triable issue of fact sufficient to rebut the expert affidavit submitted in support of the motion, which concluded that a "jolt" is not evidence of improper maintenance.

Thomas P. Lynch and Karen L. Kirshenbaum represented Sears.

The plaintiff in the other case, Ruggiero v. Sears, Roebuck and Co., Supreme Court, Westchester County (Index No. 3038/01), tripped over clothes hangers and a tie belt from a silk robe which were allegedly on the floor of a dressing room stall at the Sears store in Danbury, Connecticut. Plaintiff testified at her deposition that she had seen the hangers and belt when she entered the stall and tripped over them as she was leaving. Justice Aldo A. Nastasi held that Sears could not be liable to plaintiff because the hangers and tie belt were an open and obvious condition. "No duty exists to prevent or even to warn of conditions which can be readily perceived by the use of one's senses." While the question of whether a condition is open and obvious is often one for a jury, plaintiff's admission that she had been able "to observe and take note of" the conditions in the stall meant that the court could decide the issue as a matter of law.

Marc Rowin represented Sears.

Patrick J. Comerford's victory in Pascarella v. Sears, Roebuck and Co., 280 A.D.2d 279, 720 N.Y.S.2d 461 (1st Dept. 2001), was featured among the "Important 2001 Decisions" discussed in the Summer 2002 issue of the New York State Bar Association's Trial Lawyers Section Digest. (Pascarella is discussed below, in the March 26, 2001 update.)

July 30, 2002

On June 27, 2002, Supreme Court, Bronx County (Hon. Douglas E. McKeon) dismissed a products liability action against Lynch Rowin LLP's client, Sears, Roebuck and Co., on the grounds that Sears had demonstrated through objective evidence that it did not sell the ladder which plaintiff alleged was defective and that Sears had been prejudiced by the destruction of the ladder prior to the lawsuit. Lewis v. Baker, Supreme Court, Bronx County, Index No. 21717/91.

Plaintiff Michael Lewis fractured both ankles when a magnesium ladder he was using collapsed. Lewis' employer, third-party defendant Peter Worzman, claimed to have purchased the ladder though a Sears catalog. After the accident, but before the litigation, Worzman sold the ladder for scrap, retaining just three metal rungs and two pieces of the side rails.

Based upon measurements of the surviving pieces, Sears submitted the affidavit of Earl Records, chief engineer of the company which manufactured magnesium ladders for Sears, which concluded that the ladder could not have been one sold by his company to Sears. Sears also submitted pages from its catalogs, demonstrating that Sears never carried a magnesium extension ladder with the design features of the ladder plaintiff had been using.

Justice McKeon held that "[i]n the face of objective proof such as provided by Sears, contrary subjective statements such as Worzman's [that he had bought the ladder from Sears] are insufficient to create a triable issue of fact precluding summary judgment.

Whalen v. GTE Sylvania, 182 A.D.2d 446 (1st Dept. 1992)."

The court also held that Mr. Record's prior statement that Sears had sold the ladder at issue were irrelevant, since the statement had been based "upon five indistinct photographs" which did not show the details which led to his ultimate conclusion that Sears did not sell the ladder.

Finally, the court ruled that, even aside from the evidence that Sears did not sell the ladder, the case would "nevertheless be dismissed because the failure to preserve the ladder for inspection has prejudiced Sears' ability to defend the case on the ground that it was not the vendor of the ladder," since there would have been marks on the ladder which would have been determinative of the question of whether Sears had sold it.

Thomas P. Lynch and Karen L. Kirshenbaum represented Sears.

May 13, 2002

On April 29, 2002, the Appellate Division, Second Department reversed Supreme Court, Queens County and held that Lynch Rowin LLP's client, Conopco, Inc., sued as Helene Curtis, Inc., was entitled to summary judgment dismissing the products liability case against it. Clarke v. Helene Curtis, Inc., 293 A.D.2d 70, 742 N.Y.S.2d 325 (2d Dept. 2002).

Plaintiff had developed an inflamation of the sweat glands called hidradenitis suppurativa several days after using "Degree" deodorant. Following discovery, defendant moved for summary judgment, relying on affidavits from a dermatologist (demonstrating that there was no causal relationship between the use of the deodorant and plaintiff's condition) and from its Director of Product Integrity (stating that there had been only a minuscule number of consumer complaints about skin reactions from the use of "Degree"). In opposition, plaintiff submitted an affirmation from a general medical practitioner stating that the deodorant had caused plaintiff's condition, and her attorney's affirmation attaching quotations from medical texts.

The Appellate Division held that plaintiff's opposition was insufficient as a matter of law, since plaintiff's expert's affirmation was conclusory and lacking in scientific basis, while the medical texts were inadmissible hearsay. In addition, the court noted that the defendant was protected by the rule that a manufacturer is not liable if its product causes an allergic reaction in an insubstantial number of people.

Marc Rowin and Karen L. Kirshenbaum represented the defendant.

March 13, 2002

On February 15, 2002, Supreme Court, Kings County (Honorable L. Priscilla Hall) granted summary judgment to Lynch Rowin LLP's clients, AT&T Corporation and West Corporation, and dismissed the breach of contract, fraud and consumer protection suit brought by plaintiff Margaret Doyle. Doyle v. AT&T Corporation, Sup. Ct. Kings Cty., Index No. 47503/00.

Plaintiff alleged that in November 1997, she had been induced by West, a telemarketing company, to sign up for AT&T's long-distance telephone service by a promise that the $0.12 per minute rate charged for calls to the United Kingdom would not change as long as she continued to participate in the plan. In March 1998, the rate for calls to the United Kingdom was increased by five cents to $0.17 per minute. Plaintiff sought compensatory and punitive damages of $10 million.

Defendants contended that the suit was barred by the "filed tariff doctrine," which bars consumer suits against companies in a regulated industry if the rates charged the consumer are part of the tariff filed with the government agency having oversight of the industry. Porr v. NYNEX Corp., 230 A.D.2d 564, 660 N.Y.S.2d 440 (2d Dept. 1997). The court held that because the rates charged plaintiff by AT&T were part of a tariff filed with the Federal Communications Commission and the five cent increase was implemented in compliance with the FCC regulations governing tariff changes, plaintiff's suit was barred. Marc Rowin represented AT&T and West.

On January 18, 2002, Justice Simeon Golar dismissed the personal injury action brought against Sears, Roebuck and Co. by Jack Cappadoro. Sears was represented by Lynch Rowin LLP. Cappadoro v. Ruffin, Sup.Ct. Queens Cty., Index No. 24817/95.

Plaintiff, a New York City firefighter, was injured while fighting a fire at the home of defendant Ruffin when he fell off a ladder while attempting to vent a second story window. Plaintiff claimed that Sears was liable for his injuries because the fire started in a clothes dryer which, it was alleged, Sears had negligently serviced. According to plaintiff, while servicing the dryer, Sears had violated several sections of the New York City Administrative Code relating to electrical wiring.

Historically, because firefighters are trained and paid to engage in hazardous work, common law personal injury actions by them were not permitted. An exception to the "firefighter's rule" was created by the 1996 amendments to General Obligations Law §11-106, which now permits a firefighter to sue when his injuries were "proximately caused" by a person's negligence or willful conduct. Plaintiff claimed that his suit was within this exception to the firefighter's rule.

Sears moved for summary judgment of dismissal on the grounds that its actions in servicing the dryer were not the proximate cause of plaintiff's injury. The court agreed that there was no proximate cause relationship between Sears' actions and plaintiff's injuries:

In the case at bar, Sears presented admissible evidence that it was not the proximate cause of plaintiff's injuries. Plaintiff fell off the ladder because the halligan tool ricocheted off a window pane and caused him to lose his balance, not because of any act or omission by Sears.

In addition, because there was no evidence that Sears had done any electrical work, there was "no reasonable connection between the [building code] violations alleged and plaintiff's injury."

Thomas P. Lynch and Patrick Comerford represented Sears.

December 27, 2001

Two recent appellate decisions affirmed Lynch Rowin LLP trial victories.

On December 11, 2001, the Appellate Division, First Department affirmed the directed verdict in favor of Sears, Roebuck and Co. in the personal injury action brought by Walter Watkins in Supreme Court, Bronx County. Watkins claimed that he had been injured by a store security guard who tackled him from behind as he was fleeing the store after shoplifting a "boom box." The guard's actions were held to be justified as a matter of law under both the New York "shopkeeper's law" (General Business Law '218) and the Penal Law. "Nothing in plaintiff's testimony indicates that he would have heeded a warning to stop, and the guard's use of force admittedly stopped once plaintiff hit the ground. Given these circumstance, the non-deadly force used by the guard in apprehending a fleeing shoplifter was reasonable as a matter of law." Watkins v. Sears, Roebuck and Co., 289 A.D.2d73,735 N.Y.S.2d75 (1st Dept. 2001).

The Appellate Division, Second Department on November 13, 2001 upheld the jury verdict in favor of Sears, Roebuck and Co. and its employee, Heriberto Rodriguez, finding that while they had been negligent, the negligence was not the proximate cause of the automobile accident in which plaintiff Reva Payne had been injured.

Sears' expert witness, Domingo Isasi, had testified at trial that the driver of the car in which Payne was a passenger "would have seen the defendants' vehicle while his car was standing at the stop sign if he had looked" and "the fact that the defendant driver was driving slightly above the speed limit was not the proximate cause of the collision." The jury verdict, reasonable and supported by a "fair interpretation of the evidence," was properly upheld by the trial court. Payne v. Rodriguez 288 A.D.2d280,737 N.Y.S.2d370(2d Dept. 2001).,

Marc Rowin and Karen L. Kirshenbaum handled both appeals for Sears.

On October 23, 2001, Supreme Court, Queens County (Kitzes, J.) granted the summary judgment motion of Lynch Rowin LLP's client, Sears, Roebuck and Co., and dismissed a personal injury action arising from an automobile accident on the grounds that the plaintiff had not suffered a "serious physical injury" within the meaning of the New York "no fault" law. Jacob v. Sears, Roebuck and Co., Sup.Ct. Queens Cty., Index No. 15957/99.

Plaintiff Manali Jacob was injured when the car in which she was a passenger collided with a van owned by Sears. Plaintiff claimed to have suffered back and shoulder injuries. In moving for summary judgment, Sears submitted affidavits from physicians who had examined plaintiff and concluded that the back and shoulder strains suffered by her had resolved and that she had no orthopedic or neurological problems. In opposition, plaintiff submitted her own affidavit, her attorney's affirmation and the affirmation of two treating physicians.

In a lengthy opinion which carefully examined all of the submissions, the court held that "plaintiff's submissions have failed to raise a triable issue of fact that she sustained a serious injury." The court first noted that the attorney's affirmation was "not admissible probative evidence on medical issues," while plaintiff's "subjective complaints of pain, unsupported by credible medical evidence, are insufficient to show serious injury." The doctors' affirmations failed to close the gaps in plaintiff's proof since, among other things, they failed to specify what objective tests had been performed. The affirmations were held to be "incompetent" to raise triable issues of fact.

Thomas P. Lynch and Patrick J. Comerford represented Sears.

3/26/01

In two recent appellate decisions, Lynch Rowin LLP's client, Sears, Roebuck and Co., was absolved of liability to customers who claimed to have been injured due to Sears' negligence.

On March 19, 2001, the Appellate Division, Second Department, by a 3 to 1 majority, reversed a decision of Supreme Court, Kings County, and granted summary judgment in favor of Sears. Stasiak v. Sears, Roebuck and Co., 2001 N.Y.Slip Op. 02276, 2000 WL 33243443 (2d Dept. 2001).

The plaintiff claimed that she slipped and fell in a puddle of white latex paint which had been spilled outside of the Sears store in Newton, New Jersey. Store personnel had been alerted to the spill and were taking steps to clean it up and warn pedestrians of the hazard. The Appellate Division held that there were no triable issues of fact regarding Sears' liability. Before the owner of a premises can be held responsible for a hazard, the plaintiff must demonstrate that the owner had had a reasonable time to remedy it. "Here, in opposition to [Sears'] prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether [Sears] was afforded a reasonable time to remedy the hazard." In addition, the court held that there was no duty to warn plaintiff about the paint spill, because it was an open and obvious condition which plaintiff should have been able to see.

On February 6, 2001, the Appellate Division, First Department, by a unanimous decision, affirmed a decision of Supreme Court, New York County, granting summary judgment in Sears' favor. Pascarella v. Sears, Roebuck and Co., 720 N.Y.S.2d 461, 2001 N.Y.Slip Op. 00943 (1st Dept. 2001)

The plaintiff claimed that she slipped and fell on a creamy perfumed substance on the floor of the cosmetics department at the Sears store in Yonkers, New York. According to plaintiff, unidentified store personnel told her that they had been aware of the substance and had asked someone to clean it up. The First Department held that Sears' summary judgment motion "was properly granted since plaintiff's failed to submit competent evidence that defendant had actual or constructive notice of the alleged hazard prior to the alleged slip and fall." The First Department also held that the "alleged statements by unidentified employees . . . were not competent evidence to defeat [Sears'] summary judgment motion since, inter alia, the alleged statements were not shown to have been made within the scope of the employee's authority."

Patrick J. Comerford argued both cases for Sears.

On February 14, 2001, Marc Rowin testified as an expert witness for the defense in DuBoff, Dorband, Cushing & Kin v. Behrens, Multnomah County [Oregon] Circuit Court, No. 9906-06201.

The plaintiff law firm sued for unpaid legal fees incurred in the representation of the defendant in a case tried in Supreme Court, New York County in December 1997; the defendant counterclaimed for a return of a portion of the fees already paid. After studying the record of the New York trial, Mr. Rowin concluded that the law firm's efforts had been substandard and that the billing was excessive.

At the conclusion of the trial, the jury found for the defendant. Not only was the law firm's request for additional attorneys fees denied, but the law firm was ordered to return some of the fees which had been paid to it.

Although the trial was conducted in Portland, Oregon, Mr. Rowin testified from midtown Manhattan via a videoconferencing hook-up.

On January 9, 2001, Justice Howard Silver, Supreme Court, Bronx County, ended a week-long jury trial by granting the motion of Lynch Rowin LLP's client, Sears, Roebuck and Co., for a directed verdict of dismissal. Watkins v. Sears, Roebuck and Co., Supreme Court, Bronx County, No. 25895/96.

Watkins admitted that he had gone to the Sears store in the Bronx to shoplift. He charged that Sears security personnel had been negligent when they apprehended him outside the store, because they knocked him to the ground, breaking his leg; however, one of the security guards testified that plaintiff was injured when he ran into another security guard.

Sears argued that, even if plaintiff's version of the facts were accepted as true, the case had to be dismissed as a matter of law. Under the New York Penal Law, the store security guards were privileged to use non-deadly physical force to apprehend the plaintiff, who was committing the crime of petit larceny. Justice Silver accepted Sears' argument that under the facts presented, plaintiff was not entitled to submit the case to the jury.

Marc Rowin, assisted by Karen L. Kirshenbaum, tried the case for Sears.

On July 10,2000, the Appellate Division, Second Department affirmed a decision granting summary judgment dismissing a negligent automobile repair case brought against Lynch Rowin's client, Sears, Roebuck and Co. [Dillon v. Toyota Co., 274 A.D.2d 411, 710 N.Y.S.2d 629 (2d Dept. 2000)] 

Sears had installed a new battery in plaintiff's car two days before it stalled on a highway exit ramp, causing plaintiff serious injury when she lost control of the car and hit a tree. She contended that the stall was caused by a defect in the electrical system, which should have been detected by Sears when it installed the new battery. Although the car was not available for inspection during the litigation, Sears moved for summary judgment, submitting the affidavit of an automotive engineer who concluded, based upon plaintiff's deposition description of the stalling problem, that the car's electrical system could not have been the cause of the stall. In opposition, plaintiff submitted an expert affidavit which, while agreeing with Sears' expert that an engine can stall for many reasons, opined that the car's electrical system was the cause of the stall and should have been inspected by Sears.

In granting summary judgment in favor of Sears, Supreme Court, Kings County (Honorable Melvin S. Barasch) ruled that there was no evidence that Sears had assumed a duty to inspect the electrical system, that plaintiff's expert's affidavit did not raise a triable issue of fact as to whether the stall was caused by the electrical system and that the expert's "conclusion that proper industry practice mandated that Sears inspect the electrical system is both speculative and conclusory….."(Dillon v. Toyota Co., Sup. Ct.., Kings Cty., Index No. 41924/94)

The Appellate Division affirmed "for reasons stated in the decision of the Supreme Court. ….The plaintiff produced no evidence of a defect in the vehicle in question, and failed to refute the assertions contained in [Sears'] expert affidavit to the effect that the car could have stalled for a variety of reasons." Marc Rowin, Karen Kirshenbaum and Christopher Lim represented Sears in this case.

Past Results do not guarantee future results