Bolton v. Old Schoolhouse, LLC, Warren County Supreme Court, Justice David B. Krogmann, Index Number 46833. 

The three year old infant plaintiff suffered traumatic brain injury when she fell out a window of a second story apartment. Flink Smith's client, the defendant, was the owner of a Glens Falls' apartment building, a former school which had been converted to apartments. At the time of the incident the infant plaintiff was visiting her natural mother and the child was playing with her three-year old aunt. The mother, finding the apartment to be too stuffy, opened a window in the bedroom and left the two three-year olds alone in the bedroom. Apparently, the two children climbed up onto a deep windowsill and, allegedly, the infant plaintiff leaned back, knocking out what the plaintiffs claim was a defective screen. Plaintiffs allege that the child tumbled out the window. The plaintiffs claim the landlord installed a defective screen.

Rob Coughlin moved for summary judgment on behalf of the landlord, arguing, among other things, that the landlord owed no duty to this child under these circumstances and that the incident was unforeseeable. In effect, defendant argued that it had no obligation or duty to provide a childproof screen.

Judge Krogmann, in a nine page decision, granted the defendant's motion for summary judgment dismissing the claim in its entirety.

The plaintiffs have filed a notice of appeal.

Warren County Supreme Court, Justice David B. Krogmann, Index No. 47418


In this personal injury action, Jay A. Smith represented the defendant William Bernard who was the owner of rental properties in Warren County, New York.  Plaintiff Holmgren slipped and fell while leaving her apartment, owned by Mr. Bernard, on February 4, 2005.  Plaintiff had lived with her family in this two-family rental unit for five years.  During that time, plaintiff is well aware that certain run-off from the roof would, from time to time, drip onto her steps and cause a slippery condition.  To rectify this, Mr. Bernard provided a salt and sand mixture both at the door step of this unit, but also in the parking area in a large drum.  Plaintiff, having gone over her threshold numerous times that day without incident, fell and sustained a fractured hip.  At trial, the jury had to decide whether Mr. Bernard created a dangerous condition in allowing the recurring dripping condition to exist.  The defense successfully presented evidence to the jury which found that plaintiff had no cause of action.  Although it found Mr. Bernard negligent for not correcting the condition, that negligence was not the proximate cause of the plaintiff’s injury.  Plaintiff’s knowledge of the existing condition and testimony that she and her family maintained the sidewalk free from snow and ice as per the lease contract preempted any negligence attributable to defendant Bernard

Columbia County Supreme Court, Justice Paul J. Czajka, Index No. 2258-07


In this personal injury defense action, Jay A. Smith represented the defendant Estate of Nicola Multari.  Nicola Multari was driving his car with his brother-in-law Antonio Multari as the front seat passenger.  While traveling north on Route 9 in Hudson, NY, defendant Aaron Kurzon drove from a side road through a stop sign at 35 miles per hour from Mr. Multari’s right hand side causing the collision.  The collision forced the Multari vehicle into the opposite lane of travel where it met head on with Arthur Koweek.  Nicola Multari died of his injuries and commenced a plaintiff’s action which was joined for trial with this defense matter.  The Estate of Nicola Multari was sued by brother-in-law Antonio Multari for damages as was Kurzon and Koweek.  The action against Defendant Koweek’s was dismissed as a matter of law prior to trial.  At trial, Antonio Multari and Aaron Kurzon presented separate accident reconstruction experts who theorized that the Nicola Multari was negligent, at least to a degree, because he failed to react within a 2.1 to 2.5 second time frame.  Arguments were made that reaction times could conceivably have left Nicola Multari with .5 to .7 seconds within which to react and, had he stepped on the brake, could have possibly avoided the head on collision with the Koweek vehicle and the majority of the damage.  In opposition, expert testimony was presented on behalf of the defendant Estate of Nicola Multari that determined that there was in fact not enough time to react to the unexpected event of the Kurzon vehicle disobeying the stop sign.  Both defendant Koweek and plaintiff Antonio Multari confirmed in Court that the accident happened within seconds or split seconds.   Antonio Multari’s injuries were devastating, estimated in the $5-$6 million range.  Pursuant to the law of the State of New York, had the Estate of Nicola Multari been found 1 percent negligent, it would have been jointly responsible for the entirety of any verdict amount rendered to plaintiff Antonio Multari.  Liability aspects of were tried separately and before the damages aspect of the case.  At close of proof, the jury found that Nicola Multari was not negligent in any way for causing the accident.  The Estate was not then responsible in any way for Antonio Multari’s damage.

LeClair v Thwaits and the Town of Black Brook

Clinton County Supreme Court, Index No.: 06-0384, Hon. Patrick R. McGill. This case involves property rights, claims of the existence of a town highway and easements. Robert LeClair, represented by Flink Smith, owns real property in Clinton County. The defendant Frederick Thwaits purchased landlocked property which is adjacent to the LeClair property. An action was brought on behalf of LeClair seeking money damages and to prevent Thwaits from trespassing over the LeClair property to gain access to the Thwaits property. Defendant Thwaits claimed that he had the right to cross over LeClair’s property by use of a long abandoned road which defendant Town of Black Brook claimed was a town highway. As a result of motions made on behalf of Robert LeClair, the Court ruled that the “town highway” had long been abandoned and declared that a town highway did not exist. The Court also denied cross-claims by Thwaits seeking easements by necessity and easements by prescription. Based upon the decision of the Court, the action is still pending only to determine damages due to the plaintiff.

Whiteface v. McCutchen

Essex County Supreme Court, April 9, 2007, Justice Dawson. In representing the interests of property owner defendant Charles McCutchen, the firm successfully obtained summary judgment dismissing the action brought by the plaintiff Whiteface Resort Holdings. Whiteface Resort Holdings sought to prevent Mr. McCutchen from transferring a portion of his property. The Court specifically held “[A]s the Plaintiff’s right of first refusal extends to a portion of McCutchen’s parcel, such was extinguished over the portion McCutchen seeks to sell to the Lodge when the Plaintiff did not exercise its right within 60 days after being notified in writing of the contract of sale by McCutchen’s attorneys.”

Warren County Supreme Court, Index No.: 44874. Flink Smith represented the defendant BJ’s Wholesale Club, Inc., a Delaware corporation, in a personal injury action brought by the plaintiff. The plaintiff improperly sued the case by naming BJ’s Warehouse Club, Inc., a Nevada corporation, as the party defendant on the eve of the running of the statute of limitations. After the statute of limitations expired, plaintiff filed and served an amended complaint against the proper entity, BJ’s Wholesale Club, Inc. As a result of motions to dismiss the case on behalf of BJ’s Wholesale Club, Judge Aulisi ruled that the action against BJ’s Wholesale Club, Inc. was untimely and could not relate back to the filing of the prior action since there was no unity of interest between the two corporations. Plaintiff appealed to the Appellate Division, Third Department and in a decision dated November 21, 2007, the Appellate Division, Third Department upheld the dismissal of the action commenced against BJ’s Wholesale Club as untimely and also found that there was no unity of interest between the two corporations that would have allowed the Court to deem the second action timely.

Franklin County Supreme Court, Index No.: 2006-251, Hon. David Demarest. In this personal injury action stemming from a motor vehicle accident, Flink Smith represents the defendant in a rear-end collision. Plaintiff claimed she sustained serious injuries within the meaning of the New York No Fault Law as a result of the accident.

After completion of depositions of all parties, various discovery issues arose. As a result of plaintiff’s deposition testimony and damages claims and in particular her testimony that she was not able to perform her duties as a licensed day-care provider, defendant sought various business records from plaintiff’s home-based day-care center, and the licensing agencies files, by way of a notice to produce. Although plaintiff had withdrawn her demand for lost income, the records and information sought related to whether plaintiff did, as claimed, sustain an injury which prevented her from performing her usual activities, or for that matter, any significant injuries such as would have impacted on her operation and/or as would have been observed by people with whom she had contact in the aftermath of the accident. Defendant also reserved their right to conduct an independent medical examination while discovery issues were pending. Plaintiff did not provide the requested discovery and shortly thereafter filed the Note of Issue. Flink Smith on behalf of defendant moved to strike the note of issue as discovery was not complete and further moved for an order to compel plaintiff to comply with defendant’s notice to produce. In response, plaintiff argued that such discovery information was irrelevant and that defendant waived her right to conduct an independent medical examination.

The Court granted defendant’s motion to compel made by Flink Smith and ordered plaintiff to respond to defendant’s notice to produce and for plaintiff to submit to an independent medical examination.

Westchester County Supreme Court, Index No.: 8079105, Hon. Mary Smith. In this declaratory judgment action stemming from an underlying Labor Law personal injury case, Flink Smith represented the owner and owner’s agent. The owner had retained a general contractor who in turn subcontracted with the demolition company. The plaintiff fell from a height while working for the demolition company. The demolition company had defaulted in appearing in the underlying action.

The general liability carrier for the subcontractor commenced a declaratory judgment action seeking to be relieved from its policy obligations. That carrier moved for summary judgment resulting in cross-motions made by the general contractor and its insurance company, as well as by Flink Smith on behalf of the owner and owner’s agent.

The only motion granted by the Court was that made by Flink Smith on behalf of the owner and owner’s agent. The Court declared that the insurance company for the general contractor was required to defend and indemnify the owner and owner’s agent and, indeed, was required to pay defense costs incurred to date.

Charlton v. Charlton

Albany County Supreme Court, June 19, 2006, Justice Ferradino.  In an action for separation, the firm matrimonial department represented the plaintiff successfully in a motion for pendant lite (pending the outcome of the litigation) relief.  Plaintiff had approximately $250,000 held in joint accounts with the defendant spouse.  After some marital strife and a separation, the spouse removed those funds from the accounts.  Plaintiff moved to have the funds secured.  The Court ruled in plaintiff’s  favor and directed the spouse to turn over $200,000 of the $250,000 to be placed in escrow pending the outcome of the action.

Schenectady County Index No. 2003-1658, Judge Giardino The young plaintiff was a construction worker, removing the forms of the foundation of the client’s house.  While removing the foundation forms the Plaintiff was injured when a metal wedge struck his right eye.  As a result the Plaintiff lost his right eye.  The defendant owners moved for summary judgment dismissing the plaintiff’s labor law claims under Sections 200 and 241(6).  We were successful in establishing to the Court’s satisfaction that the clients were entitled to the benefits of the homeowner’s exemption under the Labor Law and we were able to establish that the clients exercised no supervisory control over the work. We were successful in getting the entire lawsuit dismissed as against the homeowners.

Jopling v. Jopling

Essex County Supreme Court, February 9, 2006, Justice Dawson.  The firm matrimonial department was successful in defeating a motion brought on by plaintiff to hold our client, the defendant, in contempt for alleged dissipation of marital assets (defendant paid off some debts, including IRS lien), increase temporary maintenance, and a litany of other outrageous demands, etc…  Defendant cross-moved for an order preventing the other spouse from dissipating marital assets.  Justice Dawson denied the plaintiff’s motion and granted defendant’s motion in part.

Peabody v. Kupiec

Rennselaer County Index No. 210505, Justice Ceresia. In this case, the plaintiff was assembling a horizontal silo on the defendants’ farm.  The silo was constructed of six foot long, two foot high, two foot wide concrete blocks that were being put into place by the plaintiff by the use of a mobile crane.  The hook of the mobile crane would be put through a metal loop embedded in the top center of each concrete block.  By using a wired remote control, the plaintiff lifted the blocks from the truck into place on the wall.  While the plaintiff was placing one of the blocks on the wall, the block was caused to spin and allegedly pinned the plaintiff’s foot between the swinging block and blocks of the wall that had already been set in place.

Plaintiff argued that the block was being put in place at a level of six feet and when it came off the block, it fell in a downward direction crushing the plaintiff’s foot.  We argued on behalf of the defendants that these facts did not constitute a violation of Labor Law Section 240(1) so as to create absolute liability on the owners of the farm.  Rather, plaintiff was working at ground level and this was not an elevation-related risk.  Both parties submitted expert engineering proof.

The Court agreed with the defendants’ position that this was not an elevation-related risk subject to the absolute liability provisions of Law Law Section 240(1).  The block did not free fall and even when it came to rest, it was still affixed to the hook of the boom.  Accordingly, this was not a falling object case and the plaintiff’s claim under Labor Law Section 240(1) was dismissed.

Locke v. Fadden

Essex County Family Court File No. 4974, Support Magistrate Haelen/Judge Meyers. Petitioner sought enforcement of Separation Agreement requiring respondent father to pay the full cost of his childrens’ college education expenses at colleges/universities chosen by the children.  Respondent’s contention that he was only required to contribute the cost of a New York State College education was rejected.  Father was charged with paying for cost of education at an out of state college and to reimburse the mother for education expenses incurred on behalf of another child at private New York State College.  Support Magistrate’s decision/order affirmed in full by County Court and Respondent’s objections were denied.

Malpezzi v. Ryan

Client, Dennis Ryan, in July, 2001, freed a pit bull that was entangled in a neighbor’s picnic table.  The dog continued to linger around his property.  As a result, Ryan contacted the City of Schenectady Animal Control Officer who advised Ryan that the animal was probably abandoned because he would not fight.  The Animal Control Officer advised Ryan that if he took the dog in, it would probably be destroyed.

Thereafter, Ryan had the dog examined by a veterinarian who gave the dog a clean bill of health.  Ryan also placed an ad in the newspaper to try to find the dog’s owner. 

Ryan continued to care for the dog up to September 14, 2001.  During the period of time that Ryan had possession of the dog, it did not growl, bark, bare its teeth or show any other signs of aggressive behavior.

On September 14, 2001, Ryan was walking his dog on a bike path in the City of Schenectady when he and his family encountered the infant plaintiff Malpezzi and his brother.  After being asked several times to stop jumping toward the dog and aggravating the dog, the dog ultimately bit the infant in the arm requiring stitches. 

Acting Supreme Court Justice Polly Hoye denied a motion for summary judgment  by ruling that questions of fact existed as to the vicious propensities of the dog based upon statements made by the Animal Control Officer. 

By decision dated April 27, 2006, the Appellate Division, Third Department reversed the decision of Judge Hoye, granted summary judgment and dismissed the case by finding that Dennis Ryan had no notice of any vicious propensities of the dog prior to the happening of the occurrence.  The Court reaffirmed its previous holdings that the alleged “vicious nature of the attack”, the breed of the dog or proof that the animal was restrained on the owner’s property is not sufficient to raise triable issues of fact as to the issue of vicious propensities.

Moore v. Goodrich et al

Columbia County Supreme Court, Index No. 6198-02. Judge Hummel. The 17 year old client had a New Year’s Eve party at his home while his mother was in New York City.  The mother, also a client, was unaware that the son was having a party.  A few of the young client’s friends consumed alcohol and then went to another party.  While returning from the second party to the insured’s home, the young friends were involved in a one car rollover accident.  One of the passengers was killed and another was ejected and paralyzed from the waist down.  The paraplegic, through his parents, brought a lawsuit alleging negligence and violations of Dram Shop against the 17 year old and his mother.  After discovery, we moved on behalf of our clients for summary judgment.  The Court completely agreed with our position.  The Court dismissed the negligence causes of action because the accident occurred off the premises of the clients.  The injured plaintiff was also denied recovery under the Dram Shop law, General Obligations Law Section 11-100, because the plaintiff had assisted in procuring the alcohol by going to the store and either using a fake ID or facilitating the purchase of the beer and contributing money toward the purchase of the beer.

The motion also sought to limit the damages of the plaintiff’s parents who sought recovery under the Dram Shop Act.  They were not involved in the procurement of the alcohol and they were entitled to bring that cause of action.  However, the court agreed with our argument that the parents’ damages were limited to out of pocket expenses that the parents incurred for medical care of their son up to the age of 21. 

As it turned out, the parents incurred no such expenses, all of those expenses having been paid by collateral sources.  Accordingly, the parents discontinued the action resulting in no recovery by any of the plaintiffs against our clients.

Schultz v. Opie

Greene County Index No. 05-275, Justice Pulver. The plaintiff commenced her lawsuit in Supreme Court, Greene County claiming that she was a new resident of that county.  At the time of the accident, however, she was a resident of Nassau County.  The accident occurred in Suffolk County.  The accident occurred on the ramp from the Northern Star Parkway.  Plaintiff’s vehicle was stopped and defendant’s vehicle was stopped behind the plaintiff.  Defendant sneezed and his foot came off the brake, and his car rolled into the rear end of the plaintiff’s  Volvo.

The motion to change venue was based upon the convenience of the witnesses and in the interest of justice.  We argued that a non-party witness, the State Trooper who investigated the incident, who was stationed in Nassau County, was a disinterested witness who could testify in regard to the minimal degree of property damage and the minor impact between the two vehicles.  Supporting papers included an attorney’s affidavit, an affidavit of the defendant and an affidavit of the State Trooper.  We explained the facts of the case and the investigation by the State Trooper.  The State Trooper explained as to how he would be inconvenienced by having to travel from Nassau County, where his barracks is located, to Greene County.  The affidavit set forth his proposed testimony that the impact was not severe and that the police report reflected no complaints of physical injury at the scene.  We set forth the travel time and distances between the barracks and the Greene County Court House.

Over plaintiff’s objection the Court granted the motion to change venue.

Warren v. Lantry et al

St. Lawrence County, Index. No. 109037, Justice Demarest. Plaintiff moved to amend his complaint to add punitive damages.  The plaintiff fell from a ladder affixed to a silo located on a farm.  Plaintiff alleges that there was not a safety cage around the ladder and asserted claims of negligence and strict products liability against a number of defendants including our client, the assembler and installer of the silo and ladder.

Plaintiff sought punitive damages on the grounds that the manufacturer had adopted an industry wide standard requiring ladders over 20 feet to be surrounded by a cage.  Plaintiff alleged that the assembler purposely circumvented this policy warranting the imposition of punitive damages.

We opposed this motion on several grounds including that that the plaintiff’s papers were defective; the facts did not give rise to the level of culpability warranting the imposition of punitive damages; and the plaintiff’s own negligence was arguably the sole proximate cause of the accident.

In particular, we pointed out that the alleged standard relied upon by the plaintiffs was not a custom in Upstate New York and was not an industry wide standard by any means.   Further, even if it were, that same standard stated that a person climbing a ladder can use a safety belt, a harness, friction brakes or a slide attachment while climbing a ladder and that would be the equivalent of a safety cage.

The Court ultimately agreed that punitive damages were inappropriate for these circumstances and denied the plaintiff’s motion to amend his complaint.

Young v. Algonquin Restaurant Corporation, et al

Warren County Index No. 46252, Judge Aulisi. Plaintiff and his wife were involved in an automobile accident, wife later died from her injuries.  Plaintiff suffered lower extremity injuries.  After settling with responsible driver, plaintiff brought claims against establishments where driver allegedly consumed alcohol.  The defendant restaurant corporation moved for summary judgment dismissing the plaintiff’s claims alleging violations of the Dram Shop Laws and negligence claims in serving alcohol to an intoxicated patron.  We were successful in establishing that patron not visibly intoxicated, and consumption of alcohol in establishment was not a proximate cause of the accident.

We were successful in getting the entire lawsuit dismissed against the restaurant corporation.

Bobo v. CDTA, CDTA Facilities

Albany County Supreme Court, Justice Michael Lynch Index No.: 7964-04. In this personal injury action, Edward B. Flink represented the plaintiff, Anne Bobo, who was injured when she slipped and fell while attempting to enter the Amtrak Station in Rensselaer, New York on December 26, 2003.

Plaintiff parked her vehicle in the parking lot of the train station. The lot was surrounded by high snow banks with the exception of a cut out in one corner of the lot leading towards the entrance of the station. In order to walk through the cut out, she had to traverse over a curb and onto a roadway. Upon stepping over the curb and onto the roadway, she slipped and fell on ice, sustaining a serious wrist fracture. Photographs taken the day of the accident showed water melting from the snow banks adjacent to the cut out and roadway had flowed into the cut out where the plaintiff had to travel. That water refroze and caused the plaintiff to fall.

At trial, the jury had to decide whether CDTA had created a dangerous condition in allowing snow to remain piled on the roadway in the areas adjacent to the cut out. We successfully presented evidence to the jury which found that CDTA was negligent in creating the condition, and that the plaintiff was not contributorily negligent, returning a verdict in favor of plaintiff in the amount of $225,000 for past pain and suffering and $275,000 for future pain and suffering, for a total award of $500,000.

In the matter of the Application of ROBERT E. WHITE as Executor of the Last Will and Testament of MARTHA BREISTOL a/k/a/ MARTHA BRISTOL, Deceased, to Discover Property Withheld.

Surrogates Court, Essex County, Judge Richard B. Meyer, April 16, 2008

In a case involving the application of the Dead Man’s Statute, Edward Flink obtained a Decision and Decree from the Hon. Richard B. Meyer, awarding our firm’s client ownership and immediate possession of a 1999 Harley Davidson Road King Motorcycle, which our client had purchased from his Uncle shortly before his Uncle’s death. As the Uncle, a licensed used car dealer, had never titled the motorcycle in his own name, the title which our client received from his Uncle upon payment of the balance of the $9,000 purchase price, in cash as often occurs in the North Country, bore the name of the Uncle’s seller, who had never given the Uncle a proper bill of sale or other documentation necessary to enable the Uncle to register the motorcycle in his own name, or to have his nephew, our client, register it in his name. Accordingly, as was developed during discovery in this proceeding initiated by the attorney executor of the deceased Uncle’s deceased girlfriend’s estate, the Uncle, without the knowledge of our client, had signed his seller’s name on the DTF-850 form required by the Department of Motor Vehicles in order to allow the vehicle to be titled and registered.

In addition to finding that Flink Smith’s client was a bona fide purchaser, without regard to the errors on the paperwork, the Surrogate Judge directed our firm to submit a petition for an award of attorney’s fees, which petition is currently pending.

The Estate has retained new counsel to defend the petition for attorneys’ fees.

Britt v. Pharmacologic Pet Services and D. Bridges

On February 19, 2008, before an Albany County Supreme Court jury, Edward Flink obtained a verdict in favor of the firm’s client, a City of Albany Police Sergeant who was injured in the line of duty over six years ago by a commercial vehicle owned by a company which had entrusted the vehicle to one of its employees, a known felon.

Gregg v. Flavin

Supreme Court, Columbia County Judge Czajka On October 4, 2007, Jay A. Smith received a favorable verdict for defendant in a case where liability is fixed as the defendant rear-ended plaintiff in this motor vehicle accident. Plaintiff claimed to have worked as a laborer building houses. As a result of the accident, he sustained back pain that did not develop until days after the accident. In fact, this plaintiff did not attend the emergency room on the day of the accident at all. Plaintiff was diagnosed with pre-existing degenerative disc disease as well. Plaintiff claimed pas lost wages totaling $93,000.00 and proposed future lost wages in the amount of $213,000.00. Plaintiff’s counsel did not demand a specific number from the court, however, plaintiff’s demand was $100,000.00 The jury awarded plaintiff $5,000.00 for past pain and suffering and $.00 for future pain and suffering.

Dylong v. Cross

Supreme Court, Fulton County Judge Aulisi On September 7, 2007, Jay A. Smith obtained a defense verdict in a motor vehicle accident case where the plaintiff claimed that the elderly defendant ran a red light causing the accident. Plaintiff sustained five rib fractures, breast contusion and cervical and lumbar pain allegedly associated to the accident. The seminal issue in this case involved determining who had the red light. Independent witnesses heading in different directions than the parties to the lawsuit testified as to the light sequencing they had at the time of the accident. A review of the light sequencing, as investigated by the local deputy, proved to the satisfaction of the jury that the defendant was not responsible for the accident and it was indeed the plaintiff who ran the red light turning into the path of the defendant.

Kudlack/Dudley v. Gregory and Gibson

Supreme Court, Greene County Judge Pulver On June 25, 2007, Jay A. Smith successfully obtained a favorable verdict in a case involving a motor vehicle accident. Plaintiff Kudlack was driving with plaintiff Dudley as a passenger. Plaintiffs collectively allege that defendant Gibson, driving defendant Gregory’s vehicle, made a left hand turn into the path of their vehicle causing the accident. Defendants maintained that the plaintiff driver crossed over the double yellow line causing the collision. A counterclaim was brought against the plaintiff driver by defendants. Plaintiff Kudlack suffered fractured ribs, a bimalleur fracture of her ankle. Plaintiff Dudley, who died of unrelated circumstances prior to trial, suffered fractured ribs and a bruised sternum.

Plaintiffs’ collective demand at the time of trial was $150,000.00 and an offer of $50,000.00 was rejected.

On verdict, plaintiff Kudlack was awarded $12,000.00.

Reduced by 25% to $9,000.00 for comparative negligence attributable to that plaintiff. Passenger Dudley was awarded $.00 monies from the jury.

Post trial motion upheld the Kudlack verdict and the court suggested a $4,000.00 amount with respect to the passengers’ injuries. The matter settled for $5,000.00, still well below plaintiffs’ demand at the time of trial.

JANSMA V. WILKINS CONSTRUCTION COMPANY, INC.

Supreme Court, Otsego County, Judge Coccoma, June 2007. Robert H. Coughlin, Jr. successfully obtained a defense verdict in a Labor Law/construction site incident where the plaintiff was knocked into an excavation by an excavating machine owned and operated by the defendants. The plaintiff suffered a comminuted, impacted fracture of calcaneus, that is, the heel bone, requiring open reduction and internal fixation. Testimony from the plaintiff’s treating orthopaedic surgeon gave rise to the possibility of a subtalar fusion. Immediately prior to trial the plaintiff had demanded $450,000.00 in settlement. During trial, the demand was lowered to $295,000.00. After four days of trial, the jury returned a verdict in favor of the defendants, finding that the defendants were not liable in negligence, did not violate Labor Law Section 200(1) and did not violate Labor Law Section 241(6) and the underlying regulation.

Finch v. Marcell

Supreme Court, Ulster County, Judge John C. Egan, Jr., January 10, 2007. The firm, Edward Flink, as trial counsel, obtained a favorable defense verdict in this case arising out of plaintiff’s and defendant, Kallie Marcell’s fall from a balcony of a condominium in Ocean City, Maryland, where Marcell then 18 years old, was vacationing with several of her friends from college and the plaintiff, her boyfriend, then age 33.  Alcohol had been consumed in the condominium for several hours prior to the incident, the plaintiff having purchased the alcohol for Marcell and her under aged friends.  During the course of some horse play, both Finch and Marcell fell to the boardwalk below, Finch sustaining fractures to his hip as well as loss of consciousness and other injuries.

The jury found plaintiff and Kallie Marcell both 50% liable, but only awarded Finch the amount of his unpaid medical bills ($31,135), and not awarding him recovery for medical bills which he had paid or for his alleged lost wages, nor for any past or future pain and suffering.

After the inconsistent verdict, the plaintiff had been demanding $50,000 to settle the case, right up to the time of trial, and accepted $5,000 in full settlement.

Dobies v. Brefka

Supreme Court, Schenectady County. Judge Vincent Reilly, Jr. April 5, 2006. Edward B. Flink and Jennifer Dominelli Lecakes successfully obtained a verdict for their client of $295,000 and $30,050, in compensatory and punitive damages against the defendant for defamation where defendant made false accusations of sexual abuse against plaintiff.

Harrington v. Horton

Saratoga County Supreme Court, February 8, 2006, Judge Williams, Edward B. Flink successfully obtained a defense verdict. Plaintiff was an intoxicated pedestrian who walked into the path of the defendant’s vehicle. The jury found that defendant driver was not the proximate cause of plaintiff’s injuries.

Elshani v. Cary

Greene County Supreme Court, April, 2005, Judge Lalor, Jay A. Smith successfully obtained a favorable defense verdict in a case where plaintiff was injured in an auto accident and sustained soft tissue injury to the neck and back.  Plaintiff later was also diagnosed with a brain injury including memory loss, allegedly attributed to the accident.  Plaintiff’s counsel asked the jury for an award of $895,000, but the jury found that Plaintiff did not sustain a brain injury and awarded the Plaintiff a minimal sum for her physical injury.

Springer v. DJ’s Nite Club

Supreme Court, Warren County, Judge David Krogmann. December 20, 2004. Edward B. Flink successfully obtained a defense verdict for a bar/club owner who was sued for an injury to a female plaintiff which she claimed occurred when, without any provocation or warning another woman hit her on the face with a large brandy snifter type glass.  Plaintiff, who sustained a very significant, deep laceration to her cheek, contended at trial that there was either an insufficient and/or poorly trained bouncers who should have prevented this incident.  The defense flew up from North Carolina the other woman, who had pled guilty to an assault charge as a result of the incident and wanted to explain her version which was that the plaintiff had picked a fight with her.  The jury returned a verdict in favor of the defendant, determining that while the defendant bar owner was negligent, such negligence was not the proximate cause of the injury to the plaintiff.

Bachner v. Hoye

Fulton County Supreme Court, June, 2004, Justice Sise, Jay A. Smith successfully obtained a defense verdict in a premises liability case.  Plaintiff had fallen over or from a 1.5 foot tall retaining wall and was seriously injured.  His diagnosis of quadraparesis did not interfere with the jury determining that plaintiff’s knowledge of his friends’ patio and alcohol consumption were the cause of his injuries, not the construction of the wall itself and that no negligence was attributable to defendants.

Owad v. Mayone

Supreme Court, Greene County, Judge Thomas McNamara. April 16, 2004. Edward B. Flink successfully obtained a defense verdict in a motor vehicle accident case.  The defendant’s vehicle, a BMW as plaintiffs emphasized, ran into the rear of plaintiffs’ stopped pick up truck.  Neither husband or wife plaintt received treatment at the scene, although the plaintiff wife had gone to the hospital later that evening.  Both plaintiffs treated extensively, and had doctors testify at trial.  In response, the defense neurologist testified that he did not finding objective evidence of any injury  during his exams or in the records he reviewed.  The jury returned a verdict which determined that neither plaintiff qualified under the serious injury threshold.