Firm News

In Aaron v. National Railroad Passenger Corporation, d/b/a Amtrak, the Eighth Circuit Court agreed with LCBF that the District Court erred when it denied Amtrak’s motion for judgment as a matter of law.

Plaintiffs brought a wrongful death action on behalf of a passenger who was killed by another passenger in a random shooting on an Amtrak train. Plaintiffs alleged that Amtrak’s lack of security and failure to render immediate emergency medical care caused decedent’s death.

After a two-week trial, a jury awarded plaintiffs $158.8 million, including $150 million in punitive damages. Amtrak filed post-trial motions arguing insufficient evidence to establish negligence, and insufficient evidence to justify punitive damages based on a lack of intentional conduct. The district court denied Amtrak’s post-trial motions but reduced the verdict to $44 million. Both parties appealed.

On appeal, LCBF argued that Amtrak had no duty to prevent the criminal acts of third-parties when the crime is not foreseeable. LCBF also argued that evidence of a company hiring outside security or employing its own security or police cannot be relied on to establish “foreseeability.” The Eighth Circuit agreed and affirmed the principle that a plaintiff must first establish that the crime was foreseeable, based upon similar crimes at a specific location, to establish a duty of care. Absent a showing of foreseeability, there is no duty to protect an individual from the random criminal acts of unknown third-parties.

LCBF also argued that there was no evidence to establish Amtrak caused decedent’s death based on a failure to render emergency medical care on a moving train. At trial, no expert testified that Amtrak’s actions or inactions caused decedent’s death; plaintiffs’ experts merely testified that if Amtrak had taken immediate action, decedent may have had a 4-14% chance of survival. LCBF argued this evidence was insufficient to establish causation and the Eighth Circuit agreed, finding that the minimal evidence could not support a reasonable inference that the decedent would have survived but-for Amtrak’s conduct.

The Eighth Circuit determined that plaintiffs did not present sufficient evidence to establish any of their theories of negligence against Amtrak. The Court reversed the decision below and directed the District Court to enter judgment for Amtrak. The LCBF trial team was headed by Mark Landman and the LCBF appeal team was headed by Jerry Cuomo, Gerald Ford, and Abbey Luffey. LCBF was recognized nationally by ALM for their work on this appeal, here.

In Kinan v. Deputy Kyle Esposito, et al., a New York railroad passenger injury case, LCBF successfully obtained summary judgment dismissing the complaint in its entirety for plaintiff’s failure to establish medical causation or an actionable injury.

The action arose from a train striking a Dutchess County Sheriff’s SUV fouling the railroad’s right-of-way.  Plaintiff, a passenger on the train, alleged various physical and psychological injuries despite having been asleep at the time of the impact and being unable to identify how he was injured. LCBF filed for summary judgment, arguing that the record established that plaintiff sought no contemporaneous medical treatment, sustained no objective trauma, and underwent multiple post-incident radiological studies that showed no acute injury. LCBF’s arguments were bolstered by expert opinion concerning the subjective nature of the plaintiff’s injury complaints as well as CCTV footage that contradicted the plaintiff’s description of the mechanism of injury. LCBF also argued that, even if there was any causation, the conduct of the Dutchess County Sheriff was the sole proximate cause of the accident.

The Court agreed and held that plaintiff’s claims failed as a matter of law because he could not demonstrate that the incident caused any injury. Having dismissed the case on medical causation grounds, the Court declined to reach a decision on the liability arguments. The LCBF team was headed by Philip DiBerardino and Matthew Choi.

LCBF obtained a summary judgment dismissal on behalf of a railroad client in a case brought by a former employee in New York Supreme Court, NY County, alleging that the employee had developed blood cancer as a result of his work around diesel equipment during his railroad career.. LCBF argued that, under the Federal Employers’ Liability Act (FELA), Plaintiff failed to present admissible expert evidence establishing that (1) diesel exhaust causes Hodgkin’s lymphoma (general causation); and (2) that Plaintiff’s alleged exposures to diesel exhaust were sufficient to cause his Hodgkin’s lymphoma (specific causation). More specifically, LCBF argued that Plaintiff’s expert causation opinion was deficient because (1) Plaintiff’s expert did not demonstrate that it is generally accepted that exposure to diesel exhaust causes lymphoma; and (2) Plaintiff’s expert’s reliance on studies reflecting general acceptance of an association, as opposed to causation, was insufficient. The LCBF team was led by Vincent Mehnert and Tom Patania.

In Etimos v. Casa Bella Property Management, the Appellate Court Division, 2d Department agreed with LCBF that the New York Supreme, Kings County erred when it denied a motion to dismiss a personal injury action against LCBF’s clients, which included a homeowner’s association and its two property managers. Plaintiff alleged that he slipped and fell on a defective sidewalk adjacent to a home that was a member of a homeowner’s association. LCBF argued in a pre-answer motion that the action should be dismissed against its clients because deeds, the offering plan, and other documentary evidence conclusively established that the individual homeowner rather than the homeowner’s association owned the abutting property. In opposition, Plaintiff presented the affidavit of an expert land surveyor and argued that the homeowner’s association was nevertheless liable because certain common elements owned by the association also abutted the allegedly defective sidewalk. The trial court denied the motion, but the Appellate Division reversed, dismissing the case against LCBF’s clients in its entirety with costs. The LCBF team was headed by Tina Bhatt and Daniel Tarolli.

In Nambiar v. Central Orthopedic Group, et al., LCBF successfully defended a prestigious orthopedic practice group against claims of age and sex discrimination and retaliation brought by a physician and former employee of the practice. After highly contentious litigation, the District Court agreed with LCBF that defendants had legitimate, non-discriminatory reasons for the termination. LCBF also successfully obtained dismissal of the retaliation claim by proving that the defendants were not aware of Plaintiff’s EEOC complaint at the time of her termination. LCBF defended the matter through an appeal where the Court of Appeals for the Second Circuit affirmed the summary judgment decision at the District level.  The LCBF team was headed by Tina Bhatt and Daniel Tarolli.

In Contreras v. Amtrak, et. al., LCBF successfully obtained summary judgment dismissing all claims in a New York railroad trespasser case against both the railroad and property owner. In this matter, Plaintiff suffered a leg amputation after being struck by an Amtrak train while trespassing in a CSX railyard. Seeking substantial monetary damages for his injuries, Plaintiff filed suit, arguing that the train was not operated safely and that the railyard was improperly secured due to inadequate fencing, insufficient signage, and lack of patrol. In dismissing the case, the court agreed with LCBF’s position that Plaintiff’s own reckless conduct in trespassing into the railyard and crossing the tracks was the sole proximate cause of his injuries. The court rejected Plaintiff’s argument with regard to unsafe operation of the train, noting that the FRSA preempts common-law claims regarding excessive speed and that the conductor had no duty to make an emergency stop until it was clear that Plaintiff was not heeding the horn, bell, and headlights on the train. The court also found that given the plethora of signs present in the railyard and the efforts to maintain the fencing and prosecute trespassers, CSX satisfied its duty to safely maintain the railyard. The LCBF team was headed by Shayna Bryton.

We represented a dentist in a malpractice claim venued in the New York Supreme Court, Kings County. The claim alleged improper extractions and the negligent placement of implants and bridgework, resulting in implant failure, infections, bone loss, and the need for full upper and lower arch rehabilitation. The case was brought against several dentists who were following one treatment plan. The Court accepted LCBF’s argument that our dentist’s extraction of two of Plaintiff’s natural maxillary teeth and implant placement were at all times in accordance with good and accepted standards of dental care and that the treatment did not cause or contribute to any of Plaintiff’s alleged injuries. The Court also accepted LCBF’s argument that Plaintiff’s expert failed to show a departure from the standard of care that would make the implants a proximate cause of Plaintiff’s alleged injuries. Ultimately, the Court agreed that our client was merely a specialist who served as one component in Plaintiff’s larger dental treatment and therefore dismissed our client from the case, overcoming the high threshold for summary judgment motions under New York law. The LCBF team was headed by Shayna Bryton.

The New Jersey Appellate Division upheld a trial court decision awarding sanctions to our client, a civil engineering firm. Partial sanctions were awarded at the trial level after LCBF successfully argued that the plaintiff, who had sued our client in relation to site work at a municipal redevelopment project, brought a frivolous lawsuit against our client despite email evidence that demonstrated our client was free from fault. Plaintiff appealed the sanctions award and LCBF cross-appealed the reduction in the fee award.

In addition to affirming the sanctions and fees ruling, the Appellate held that the trial court did not properly explain the basis for decreasing the amount of sanctions granted. The matter has therefore been remanded to the trial court: (1) for a more thorough explanation of why the full amount of sanctions was not granted, and (2) a readjustment of the fee award, if needed. The LCBF team was headed by Joseph Tomaino and Rachel Morgan.

LCBF represented a Certified Public Accountant at a hearing before the AICPA Joint Trial Board, where the CPA had been charged with violating the “Acts Discreditable Rule” of the AICPA’s and New York State Society of CPA’s codes of professional conduct. When this CPA came to our firm, he had already been suspended by the AICPA for prior alleged similar conduct. In our case, the AICPA offered to allow the CPA to a) consent to be expelled from the AICPA or b) proceed to the hearing. If the CPA had been expelled, by consent or as a result of the hearing, the expulsion would have been posted on the AICPA’s website, and the AICPA could have referred the CPA to New York State for possible action against his license. At the conclusion of the hearing, the Joint Trial Board deliberated for approximately 1 ½ hours and acquitted the CPA of all charges. The LCBF team was headed by Ronald Joseph.

A student and his parents sued our client, a New Jersey school district and its former principal, raising various civil rights and constitutional violations arising out of the district’s provision or failure to provide certain educational services. LCBF filed a pre-discovery motion to dismiss.

Leveraging our extensive experience with IDEA administrative processes and civil rights threshold legal standard we raised a jurisdictional issue, avoiding the need for the Court to engage with the facts of the case. Plaintiffs were given an opportunity to amend and additional briefing opportunities, each defeated through renewal of the original legal arguments set forth in our motion to dismiss. As the Plaintiffs were unable to cure the deficits in their claims, the complaint was ultimately dismissed with prejudice following our persistent efforts. The LCBF team was led by Janelle N. Winters and Rachel Rubenstein.

We represented a Certified Public Accountant in a claim alleging malpractice in the Superior Court of New Jersey. LCBF had previously secured dismissal of the same Plaintiff’s claims against the same clients and prevailed against him after an appeal. Upon Plaintiff’s attempt to reframe the claims and file a new action, our team immediately filed for dismissal. The Court agreed with LCBF that the case was subject to dismissal based on the entire-controversy doctrine and rejected the Plaintiff’s efforts to recast his prior claims as new claims. The Court therefore dismissed the complaint with prejudice and awarded our client the full amount of LCBF’s fees associated with filing the motion to dismiss. The LCBF team was led by Rachel Rubenstein.

In a case pursued by a Pro Se plaintiff, it was alleged that the plaintiff experienced $10,000 in damages from the loss of his luggage. LCBF had obtained a defense verdict during arbitration, which was appealed to the state court.

In the Complaint, plaintiff claimed to attach exhibits but same were never included. Plaintiff also never responded to Greyhound’s letter requesting these documents or Greyhound’s formal discovery requests. Greyhound obtained a defense verdict during arbitration but plaintiff appealed same. At the bench trial, we were able to demonstrate the lack of proof of any negligence by the bus company through a tactful cross examination of the plaintiff. As a result, the Court issued a compulsory non-suit verdict, dismissing plaintiff’s claims. The trial team was led by Velika Nespor.

Our client, a civil engineer, was sued in relation to site work at a municipal redevelopment project. Discovery revealed email evidence which demonstrated that our client was free from fault. LCBF sought immediate dismissal, but plaintiffs refused. LCBF submitted a successful motion for summary judgment and our subsequent motion for sanctions was granted. The court sanctioned plaintiffs and awarded $30,000 in favor of our client. The LCBF team was headed by Joseph Tomaino.

In what is becoming more and more frequent, the case involved a very low-speed sideswipe motor vehicle collision, with a plaintiff who nonetheless alleged very significant injuries – including three surgeries (neck, back and shoulder). Plaintiff also alleged a significant past/future lost wage claim. The Firm represented the defendant-employer, a railroad transportation company, who owned/operated the vehicle plaintiff occupied. The Jury returned a mid-five-figure verdict, which was significantly lower than the seven-figure demand sought by plaintiff.

The trial team was able to cross-examine the plaintiff’s physicians to great effect, demonstrating that the physicians relied upon plaintiff’s subjective complaints to determine causation, but they had no knowledge whatsoever as to how the accident occurred, and had been completely unaware of the plaintiff’s significant pre-existing treatment history. The trial team was also able to demonstrate that plaintiff himself was completely unreliable, that he failed to disclose his prior treatment, and was generally unsympathetic. Surveillance footage was also used to great effect, which showed the plaintiff lifting hundreds of pounds at the gym. The trial team was led by John A. Bonventre and Alex Marcus.

On September 14, 2023, the New Jersey Superior Court Appellate Division entered a decision affirming the trial court order dismissing Plaintiff’s complaint on the basis that our client did not owe him a duty of care.

Plaintiff’s employer ordered a nearly 900-pound reel of wire from our client, a supplier/distributor of electrical supplies, which was to be delivered to one of Plaintiff’s employer’s jobsites. Our client hired a courier, which had no vehicles with liftgates, to deliver the reel to the jobsite. When the courier arrived at the jobsite, Plaintiff’s supervisor decided to unload the reel manually and asked Plaintiff to assist him. During the unloading, Plaintiff injured his back, which required extensive treatment, including back surgery. Plaintiff alleged that our client was negligent in failing to provide his employer with a mechanical means to unload the reel of wire, failing to deliver the reel in smaller pieces, and inaccurately recording the weight of the reel on delivery documentation.

The trial team, consisting of John Bonventre and Rachel Rubenstein, filed for summary judgment. The trial court agreed with us that our client, as a matter of law, did not owe Plaintiff a duty of care and dismissed Plaintiff’s complaint against our client. Plaintiff appealed this ruling.

Using the strong record our trial team developed, the Appellate Division upheld the trial court’s decision. The Appellate Division explained that the undisputed material facts established that: (1) our client had no relationship with or control over Plaintiff; (2) no one from Plaintiff’s employer had requested that the reel be delivered with a mechanical means for unloading the reel; (3) the courier controlled how the delivery was made; and (4) Plaintiff’s supervisor, not our client, decided that the reel would be unloaded without mechanical assistance. In sum, our client had no control over the jobsite or how the reel was unloaded.

Plaintiff relied heavily on statements made by his supervisor in the accident report, which inaccurately suggested that our client had been asked to deliver the reel in a truck with a lift gate. The Appellate Division agreed with us that those statements were inadmissible hearsay.

The appeal team was headed by Gerald Ford, and Rachel Rubenstein.

On August 18, 2023, the New Jersey Appellate Division issued a ruling affirming the decision to dismiss a plaintiff’s complaint in a workplace accident, holding that the property owner owed no duty to the plaintiff.

LCBF represented First Student, Inc. in the matter. The plaintiff was a First Student employee who alleged a serious injury after falling on snow and ice during her early morning, pre-drive inspection of her school bus. The bus was in a parking lot that First Student leased from the co-defendant property owner pursuant to an oral lease. The property owner filed a third-party complaint against First Student seeking a defense and indemnity pursuant to its arrangement with First Student.

After the plaintiff rejected a reasonable settlement offer from First Student, both First Student and the co-defendant property owner filed motions for summary judgment asserting that the property owner owed no duty to the plaintiff under the Supreme Court of New Jersey’s decision in Shields v. Ramslee Motors, 240 N.J. 479 (2020). These motions were granted by the trial court, and the plaintiff filed an appeal. In Shields, the Supreme Court ruled that a property owner owed no duty to a plaintiff who slipped on snow and ice, when the written lease placed responsibility for snow and ice removal on the tenant.

On appeal, LCBF and the property owner successfully argued that Shields should be extended to an oral lease. The Appellate Division determined that the property owner did not owe a duty of care to plaintiff because the deposition testimony showed that, under the terms of the oral lease, First Student was responsible for snow and ice removal at the parking lot. The court rejected plaintiff’s argument that the oral nature of the lease created a question of fact for the jury on that issue. The court also said that no duty was owed by the property owner under Hopkins v. Fox & Lazo Realtors, 132 N.J. 326 (1993), because, among other things, plaintiff’s workers compensation claim against First Student provided her with an adequate remedy for the accident.

The appeal team was headed by Gerry Ford.

On April 21, 2023, the New Jersey Appellate Division issued a ruling on an interlocutory appeal of a trial court discovery order precluding the defendants’ deposition of a minor plaintiff. The successful ruling followed the Supreme Court of New Jersey’s order granting our motion for leave to appeal the interlocutory discovery order (a rare event in a civil case). LCBF represents a transportation defendant in the case, where the plaintiff alleges abuse at a summer camp. Despite seeking money damages for the alleged incident, the plaintiff’s mother refused to allow the minor plaintiff to be deposed. The trial court ruled in favor of the minor plaintiff on the basis that: (1) he allegedly had no recollection of the incident; (2) his treating doctor claimed a deposition would exacerbate his anxiety; and (3) the defendants could obtain any information needed from the minor plaintiff through an independent medical examination by the defense neuropsychologist.

The Appellate Division denied our motion for leave to appeal the discovery orders Undaunted and convinced they had a meritorious interlocutory appeal, the LCBF team filed a motion with the Supreme Court of New Jersey for leave to appeal. The Supreme Court granted our motion and remanded the case to the Appellate Division to hear our appeal.

In a comprehensive opinion emphasizing the importance of broad discovery, the Appellate Division concluded that the trial court abused its discretion and reversed the order below. The Appellate Division stated that the minor plaintiff can be deposed and testify at trial subject to “such conditions as are appropriate to balance the public policy goal of treating child victims and witnesses with the sensitivity and understanding they rightly deserve while, at the same time, affording defendants in a civil case the opportunity to appropriately question a witness.”

The appeal team was headed by Gerald Ford.

In 2021, Amtrak acquired by condemnation property in Manhattan that was needed for the Gateway – Hudson River Tunnel Project. As part of that transaction, Amtrak paid $9,515,500 to New York City for real estate transfer taxes. LCBF filed a refund claim with the City for those transfer taxes. LCBF argued that Congress intended to exempt Amtrak from state and local transfer taxes when Amtrak acquired real estate for its railroad operations, and that the exemption applied whether the transfer taxes were imposed on the transferor or transferee. The City ultimately agreed with LCBF and refunded Amtrak $9,515,500. The LCBF tax team was headed by Gerry Ford.

On June 16, 2022, an arbitrator from the American Arbitration Association issued an award in favor of our client, a licensed home inspector, following a four-day virtual arbitration. Claimants alleged that our client’s home inspection report failed to disclose significant observable deficiencies with the house. As a result, they allegedly lost the opportunity to back out of the contract or, alternatively, that they suffered extensive repair/replacement damages.

Claimants testified during arbitration along with a liability expert and three damages witnesses (licensed engineer and architect, siding and roofing contractor and general contractor). LCBF successfully rebutted claimants’ allegations through cross-examination of these witnesses, which revealed credibility issues and misplaced reliance on inaccurate information to form their opinions.

The arbitration award found that claimants failed to prove our client was negligent and denied claimants’ alleged damages. The LCBF team was headed by Joseph Tomaino and Fabiola Vieites.

On April 26, 2022, in Nemeth v. Whittaker Clark & Daniels, New York’s highest court, the Court of Appeals, reversed a $16.5M verdict entered by a NYC jury in 2017. Plaintiff claimed that Florence Nemeth was exposed to “asbestos” from her alleged use of Desert Flower Dusting Powder, and that such exposure caused her to develop peritoneal mesothelioma. Before Trial, no expert defined the amount of alleged “asbestos” exposure that would be capable of causing peritoneal mesothelioma, nor what amount of alleged exposure Ms. Nemeth could have had if her claims were believed. LCBF moved in limine to preclude Plaintiff’s causation expert Dr. Jacqueline Moline from opining on the issue specific causation because no amounts were described in any pre-trial disclosure. At a 7 week-long Trial, Sean Fitzgerald, P.G., an expert for the Plaintiff, contended that his testing showed that millions of “asbestos” fibers would have been released during product use. Mr. Fitzgerald, however, did not opine what amount of the fibers released would have been inhaled. And, thus, there was a gap in proof. Moreover, on cross examination, Dr. Moline admitted that she knew of no threshold for the exposure level necessary to cause peritoneal mesothelioma, but that it was her opinion that “low or brief” exposures were sufficient, and also admitted that she had not calculated any dose of exposure related to the product at issue. In overturning the lower court’s decisions, the Court of Appeals explained that there were two fatal deficiencies in Plaintiff’s expert proofs that LCBF preserved at Trial: (1) failure to establish the threshold level of the toxin necessary to cause the particular injury (i.e., “low or brief” exposure was legally insufficient), and (2) failure to demonstrate the decedent’s specific level of exposure even if by estimation or comparison. The Court further emphasized the legal requirement that a “causation expert must still establish that the Plaintiff was exposed to sufficient levels of the toxin from the defendant’s products to have caused her disease.”

The LCBF Trial team was headed by Andrew Kornblau. A link to the Decision can be found here: Nemeth Decision (Ct. of App. NY)

This case stemmed from an accident at a NY construction site where the plaintiff filed suit against various defendants including the owner of the premises. The owner filed a third-party complaint against the tenant’s insurance broker for its alleged failure to provide additional insured coverage for the owner. In lieu of an answer for the insurance broker, LCBF filed a CPLR 3211(a) motion to dismiss the third-party complaint for failure to state a claim against the broker because the owner was not in privity with the insurance broker. We also argued there was no basis to impose fiduciary duties upon an insurance broker under the special relationship doctrine. The opposition argued that our motion was premature because of the lack of discovery.

The Supreme Court of New York, Kings County, granted our motion and dismissed the third-party complaint against the insurance broker, with prejudice. The LCBF litigation team was headed by Gerald Ford.

On April 5, 2021, the New Jersey Judiciary began conducting civil virtual jury trials statewide without the need for the parties’ consent. LCBF defended one of the first two virtual trials that started in Camden County on April 5th. The trial was completely virtual, with the judge, each juror, counsel, and witnesses in separate locations.

In Paladino v. Auletto Enterprises, Inc. t/a Auletto Caterers, a Camden County jury returned a defense verdict in favor of our client following an eight day virtual trial, which we believe to be the longest virtual civil trial conducted in the state. Plaintiff contended that a single step on our client’s premises was a dangerous condition and caused her to fall. Plaintiff alleged injuries to her left knee and low back. Plaintiff underwent arthroscopic left knee surgery, left knee replacement surgery and epidural and branch block injections in her back. Plaintiff sought monetary damages for significant past and future medical expenses, pain and suffering, impairment and loss of enjoyment of life.

Plaintiff called a liability expert (engineer) and two medical experts to testify, as well as witnesses regarding plaintiff’s pain and suffering. Plaintiff’s liability expert opined that the single step was a safety hazard. Plaintiff’s medical experts opined that the fall caused her knee and back injuries and that she will require a future knee replacement surgery and one or two future back surgeries.

LCBF was able to rebut plaintiff’s theories of liability through the use of security camera footage, plaintiff’s own fault and evidence of no prior incidents on the step. With respect to damages, through cross-examination of plaintiff’s fact and expert witnesses, we were able to raise credibility issues and demonstrate that plaintiff had some unrelated pre and post-accident limitations that undercut her damages claims.

The jury returned a verdict finding our client was not negligent. The LCBF trial team was headed by Joseph Tomaino.

Members Jerry Cuomo and Gerald Ford successfully represented the Federal Home Loan Mortgage Corporation (“Freddie Mac”) in the United States District Court for the District of New Jersey and obtained a preliminary injunction and order appointing a Receiver to manage two multi-family properties in Jersey City and Perth Amboy, New Jersey, which had been abandoned by the property owner and manager. The owner/manager (Freddie Mac’s borrower) was under criminal investigation by the FBI, and also abandoned nearly 70 other properties in New Jersey. Following LCBF’s lead in successfully obtaining relief, several other lenders (represented by prominent New Jersey and national law firms) adopted Freddie Mac’s filings in order to obtain the appointment of a Receiver to take over management of their properties.

On July 9, 2019, Judge Denise Cote, in the United States District Court for the Southern District of New York, dismissed a suit brought against Amtrak, which the firm defended, holding that the Amtrak Police had probable cause to arrest plaintiff and that he had not been injured. In Williams v Amtrak, 18-cv-07070 (S.D.N.Y.) plaintiff was in the Men’s Room at Penn Station – New York when a teenager emerged and complained to the Amtrak Police that plaintiff had crawled under a stall and taken pictures of him with his cell phone camera. Two Amtrak Police Officers escorted plaintiff to the Amtrak Police Command Center and placed him in a holding cell while they investigated the allegations. The police obtained plaintiff’s consent to search his cell phone. Although the police found pictures of other naked men on the cell phone, there were no pictures of the complainant. After conferring with the District Attorney’s Office, the police released Williams without charging him. He was in custody for approximately 75 minutes. Plaintiff asserted claims for false arrest, excessive use of force, and violation of his constitutional rights, all of which were dismissed. This LCBF team was headed by Ron Joseph.

On June 20, 2019, in Robusto (DiScala) v. Whittaker Clark & Daniels, the 1st Department reversed a $7M verdict entered by a NYC jury in 2015. Plaintiff claimed that Joan Robusto was exposed to “asbestos” from her alleged use of Desert Flower Dusting Powder, and that such exposure caused her to develop pleural mesothelioma. Before Trial, no expert defined the amount of alleged “asbestos” exposure Ms. Robusto could have had if her claims were believed. LCBF moved in limine to preclude Plaintiff’s causation expert Dr. Jacqueline Moline from opining on the issue of specific causation because no amount was described in any pre-trial disclosure. At a 5 week-long Trial, Sean Fitzgerald, P.G., an expert for the Plaintiff, contended that his testing showed that there would have been a “substantial” exposure from use of the product at issue. Dr. Moline relied on that vague description to form her opinion as to Ms. Robusto’s pleural mesothelioma. On appeal, the 1st Department found that the Trial Record preserved by LCBF “failed to establish a level of exposure sufficient to cause the illness.”

The LCBF Trial team was headed by John Bonventre. A link to the Decision can be found here: Robusto Decision (1st Dept.)

In Arrington v. Amtrak, venued in the Eastern District of Pennsylvania, an Amtrak passenger filed a lawsuit based upon claims of negligence and the Americans with Disabilities Act (“ADA”), resulting from an alleged fall she had while walking through the train car. Plaintiff alleged injuries to her neck, requiring a laminectomy, left shoulder and bilateral carpal tunnel syndrome, requiring a right carpal tunnel release. Plaintiff, who bought a handicapped seat on the train, alleged she was forced to move to another car without assistance. The trial court granted Amtrak’s summary judgment motion on both claims. Plaintiff appealed to the Third Circuit, which affirmed the trial court’s ruling. The appellate court affirmed the trial court’s findings that, contrary to plaintiff’s assertion, she was not substantially limited in a major life activity that would establish her as a qualified individual under the ADA, and that Amtrak did not discriminate against plaintiff since the only accommodation plaintiff requested, a handicapped seat, was provided. In affirming the dismissal of the negligence claim, the court found that plaintiff never asked for assistance prior to changing seats and, despite being advised she could wait until the train stopped moving, chose to change seats on her own accord while the train was moving. Andrew Kornblau headed the LCBF team.

A New York County jury returned a defense verdict in favor of our client, a general dentist, following a one-week trial. Plaintiff claimed that our client took advantage of her financially by duping her into accepting unnecessary dental treatment and provided negligent treatment, which allegedly caused loss of three teeth, destruction of her natural smile, and other injuries. Plaintiff further claimed for the first time at trial that our client tampered with the evidence, including by backdating a key x-ray. LCBF was able to rebut plaintiff’s theories through effective direct and cross-examination of fact and expert witnesses and presentation of documentary evidence. Plaintiff sought monetary damages for physical injuries and past and future pain and suffering. The jury deliberated for a little over one hour and returned a verdict finding no liability against our client and that plaintiff was 100% at fault. The LCBF team was headed by Tina Bhatt.

In Christopher Chunn v Amtrak, et. al., (14 cv 6149), plaintiff sued Amtrak, two of its police officers, the United States Drug Administration and two DEA agents. The Amtrak police had arrested plaintiff for Disorderly Conduct and Resisting Arrest. When the Amtrak Police searched plaintiff, they found more than $10,000 in cash. Plaintiff, who had slept in a passenger waiting room and was travelling without luggage, did not offer an explanation to the police for carrying that much cash and he refused to provide information about his employment. The police called the DEA, which responded with a drug sniffing canine that “alerted” to narcotics on the cash. Because the DEA failed to properly notify plaintiff of his right to challenge the seizure, it refunded plaintiff’s money. Plaintiff claimed that the Amtrak police nevertheless violated his rights to due process and that they should have conducted a hearing before transmitting the cash to the DEA. LCBF argued that the police were permitted to seize the money pursuant to a search incident to arrest and inventory search and that its responsibilities ended when the cash was transmitted to the DEA. In a Decision and Order, Judge Paul Crotty (SDNY) dismissed the claims against the Amtrak Police and its officers. The case was defended by Tina Bhatt and Ron Joseph.

Judge Legrome D. Davis (E.D.Pa.) lauded Mark Landman and client Amtrak in approving the $265 million settlement of claims arising from the May 12, 2015 derailment in Philadelphia, which generated over 120 lawsuits on behalf of over 150 passengers who were hurt and the families of those who died. The court found that their early emphasis on settlement had minimized costs and saved years of litigation, thereby boosting confidence in the courts. The LCBF team also included John Bonventre and Yuri Brunetti.

In Skorupski v. Paley, a Monmouth County, New Jersey jury returned a defense verdict in favor our clients following a three- week trial. Plaintiff allegedly sustained mild traumatic brain injuries as a result of being pushed by another student on a school bus and asserted negligence claims against the bus company and driver. Plaintiff called numerous liability and damages witnesses to testify, including three expert witnesses. LCBF was able to rebut plaintiff’s theories of liability and damages through cross-examination of witnesses and use of plaintiff’s social media. Plaintiff sought monetary damages for pain and suffering, disability/impairment and loss of enjoyment of life, as well as $1.7 to $2.2 million in future economic losses. The LCBF team was headed by Joseph Tomaino and Gerald Ford.

In Molloy v LIRR, 2017 WL 1716366 (1st Dept 2017), a construction worker, who fell from a locomotive, sued our clients under the Labor Law. The Appellate Division, First department, affirmed the trial court’s grant of summary judgment dismissing plaintiff’s Section 200 and 240 claims, as well as his Section 241(6) claims arising from two provisions of the Industrial Code. In so doing, the panel embraced our argument that the special protections of Labor Law section 240(1), which imposes strict liability, do not apply to a worker who is alighting from his vehicle. It did not accept plaintiff’s argument that prior precedent relating to workers alighting from a vehicle should not apply when a worker is forced to climb down from the vehicle a distance greater than five feet. The LCBF team was headed by Ron Joseph.

In Saari v. MITRE Corporation, the United States District Court for the District of New Jersey dismissed an action alleging unlawful termination and disability discrimination claims in violation of the New Jersey Law Against Discrimination (“NJLAD”) and violations of the Family Medical Leave Act (“FMLA”). Plaintiff, who had been terminated as part of a corporate-wide reduction in force, had filed suit in New Jersey state court against the corporation and two supervisors. On defendants’ behalf, LCBF removed the case to federal court and conducted e-discovery and depositions to posture the case for summary judgment. Many of the undisputed material facts were established at plaintiff’s own deposition. The LCBF team was headed by Joseph Tomaino and Vincent Mehnert.

In Welsh v. Amtrak, venued in the Philadelphia Court of Common Pleas, a former Amtrak employee filed two FELA claims alleging injuries to his shoulder, requiring arthroscopy, and back/neck, requiring a cervical decompression and fusion. The trial Court granted Amtrak’s summary judgment motion on both claims. Plaintiff appealed only one of the claims, and after hearing oral argument, the Superior Court of Pennsylvania affirmed the trial court’s ruling. Andrew Kornblau headed the LCBF team and orally argued the appeal.

In Palumbo v. Transit Technologies, LLC, 144 A.D.3d 773 (2d Dep’t 2016), plaintiff was working at an elevated subway station, feeding cable into a man-made permanent trench that adjoined the train tracks. The trench was approximately three feet wide by two feet deep. The cable was attached to a remotely-located pulling device and was moving at a controlled pace when it unexpectedly accelerated forward, pulling plaintiff part-way into the trench. The Appellate Division adopted our argument that the case did not present an elevation-related risk covered by section 240(1). This conclusion can be supported by either or both of two key pieces of evidence: (1) the trench was only two feet deep, and (2) his fall did not directly flow from the application of the force of gravity but rather from the unanticipated force of the cable pulling him forward, i.e., horizontally toward the trench. The appellate court also ruled that the trench was not a “hazardous opening” within the meaning of Industrial Code section 23-1.7(b)(1)(i), precluding liability under Labor Law 241(6). The LCBF team was headed by Bill Ballaine.

In Vega v MTA, a construction worker claimed catastrophic damages resulting from a crushed and partially amputated finger. His finger tip was struck by a piece of falling concrete. After it was re-attached in the hospital, plaintiff had two more surgeries, a fusion of the finger and removal of the hardware. He claimed that he developed Reflex Sympathetic Dystrophy/Complex Regional Pain Syndrome, has allodynia from the tips of all five fingers up to his shoulder, and has no use of his left upper extremity, as well as a full and permanent disability as a result of psychiatric issues. Plaintiff’s counsel asked the jury to return a verdict of approximately $33 million for his client’s Labor Law claims. The jury returned a net verdict of approximately $725,000, substantially less than LCBF’s client had offered to settle. The trial team was led by Ron Joseph.

In connection with its continuing representation of Amtrak in the MDL arising out of the May 12, 2015 derailment in Philadelphia, PA, LCBF negotiated a $265 million global resolution with the Plaintiffs’ Management Committee. On October 27, 2016, U.S. District Judge Legrome Davis approved the settlement program. Over 120 lawsuits have been filed on behalf of more than 150 passengers who suffered injuries and the families of passengers who died in the accident. The LCBF team is headed by Mark Landman and included John Bonventre and Yuri Brunetti.

In Hopkins v. Amtrak, 08-CV-2965 (NGG) (RML) (E.D.N.Y.), on the eve of trial in federal court in Brooklyn, following 8 years of hard fought litigation and adverse court rulings on motions in limine, a grievously injured plaintiff voluntarily dismissed with prejudice and no payment his claims against Amtrak and the Massachusetts Bay Transportation Authority (MBTA), which were represented by LCBF. Plaintiff, a 24-year old man, had climbed up on top of an Amtrak train at Boston’s South Station and touched the overhead catenary, resulting in 85% of his body suffering third and fourth degree burns with resulting amputations of his left arm, left leg, partial loss of digits on his right hand, and injuries to his genitals requiring penile reconstruction and multiple autograft surgeries. Even though there was no Massachusetts case on point, we argued to the federal judge that plaintiff’s own recklessness barred his claims that Amtrak was reckless for parking trains under energized wires overnight while the MBTA left the station open to the public with no security. Three days before trial, the Court issued a 55-page decision on a host of in limine issues, most significantly holding, as a matter of first impression under Massachusetts law, that a plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant on a recklessness claim. Previously, the court had granted defendants’ motion to bifurcate. See Hopkins v. Amtrak, 2016 WL 1588499 (E.D.N.Y. 2016). The LCBF team was headed by Mark Landman and Tina Bhatt.

An Eastern District of New York jury rendered a defense verdict for a Long Island law firm accused by a former employee of hostile work environment, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000, et seq., 42 U.S.C. § 1981, and the New York State Human Rights Law. The LCBF trial team included Tina Bhatt.

In Scofield v. Avante Contracting Corp., 135 AD3d 929 (2d Dep’t 2016), plaintiff allegedly fell from a ladder while doing HVAC work at a construction project. He had completed the same task using the same ladder in four other rooms without incident. In the final room, he had to maneuver around two stacks of sheetrock, which prevented him from placing the ladder directly under the location where he needed to work. When plaintiff ascended the ladder, it was firmly on the ground and did not shake or move while he climbed to the third rung, but it tipped over when he reached three to four feet to his right. Plaintiff asserted claims under Labor Law §§ 200, 240 (1) and 241(6) against LCBF’s client, the general contractor, and the owner. The Second Department affirmed summary judgment for defendants, stating “the injured plaintiff improperly positioned and misused the ladder, which was the sole proximate cause of his injuries.” Gerald Ford headed the LCBF team.

In Dotseth vs. First Student, venued in the Philadelphia Court of Common Pleas, plaintiff alleged a traumatic brain injury including, cognitive and memory impairment, as well as neck/back injuries as a result of being rear-ended by our client’s school bus. Plaintiff received extensive medical treatment, including treatment from neurologists, neuropsychologists, orthopedists and homeopathic medicine specialists. Plaintiff, a banking executive earning from $250,000 to $500,000 a year at various times, alleged that she could no longer work as a result of the accident, could not socialize, could no longer participate in industry organizations and that her relationship with her husband, colleagues and friends deteriorated. Plaintiff boarded over $9 million in economic losses and asserted that she should also be compensated for her pain and suffering for the rest of her life. The last settlement demand before trial began was $6.1 million. The verdict was $101,000 consisting of $26,000 in past wage loss, $0 in future wage loss and $75,000 in pain and suffering. The LCBF team was headed by Diane Ruccia and included Dan Gillin.

In Kowlesar vs. First Transit Hudson County, venued in the Law Division of Hudson County, New Jersey, the firm achieved an extremely favorable settlement – significantly lower than the $6 million pretrial settlement demand – after two days of jury selection. Plaintiff, a pedestrian, was struck by our client’s mini bus. Plaintiff alleged significant injuries including herniated cervical and lumbar discs, a rotator cuff tear and a torn meniscus, as well as alleged psychological damages, underwent four surgeries, and continued to receive medical treatment. Lead trial counsel was Diane Ruccia.

LCBF successfully defended Metro-North Railroad in the first claim arising out of the 2013 Spuyten Duyvil train derailment to go to trial. In Herbert v Metro-North Railroad (U.S. Dist. Ct., Southern District of New York), plaintiff, the assistant train conductor, claimed that she sustained numerous physical and psychological injuries that prevented her from ever returning to gainful employment. Defendant did not contest liability, but LCBF argued that plaintiff’s injuries resolved and that she was capable of future employment. Despite plaintiff’s counsel asking the jury to award over $4 million in damages, the jury awarded only $835,000 in total damages. Andrew Keaveney headed the LCBF team.

An accounting firm, represented by the firm, was accused of misrepresenting to clients that a particular accountant was an owner of the firm and the engagement member on their matters with the firm. LCBF successfully argued that, although the accountant and the firm had not signed a formal shareholder agreement evidencing that the accountant was an owner, the firm treated him as an owner and reported to the State of New York Department of Education that he was an owner. The LCBF team was led by Ron Joseph.

LCBF obtained a defense verdict in Eugene v Skyline Restoration, Inc. (Supreme Court, Queens County), where plaintiff claimed that the defendant’s acidic-based solution used to clean a hi-rise building’s brick facade fell into his eye. LCBF argued that plaintiff’s alleged eye injuries manifested weeks after the incident and, therefore, were not related to the defendant’s work. The jury agreed and awarded plaintiff nothing. Andrew Keaveney led the LCBF team.

LCBF obtained a temporary stay from the appellate division of a $5 million attachment order entered by a Kings County Supreme Court justice in an assisted living facility litigation.

LCBF has been retained by a New York City property manager to defend several suits in Bronx County brought by plaintiffs who claim to have been seriously injured by exposure to the Legionella bacteria, resulting in Legionnaires’ Disease. Drawing upon our decades of experience defending mold and other toxic tort claims, we have assembled as consultants a first-rate team of highly experienced Legionnaires’ Disease experts, including an epidemiologist, microbiologist and mechanical engineer. LCBF’s Legionnaires’ team, headed by Dan Moretti, is prepared to work closely with building owners, property managers, and business operators in their efforts to prevent Legionella outbreaks, address such outbreaks should they actually occur, and respond to any resulting claims or suits.

The United States Department of Labor (DOL) has been scrutinizing audits of employee benefit programs, focusing on audit reports that were prepared by small accounting firms. The DOL has reported that they found deficiencies in 75.8% of audit reports prepared by firms with 1-2 CPA’s and deficiencies in 68.4% of audit reports prepared by firms with 3-5 CPAs. An audit report can be deemed deficient if the auditor does not have expertise or sufficient experience in these types of engagements. The DOL can assess steep fines against employers who file audit reports that are not in compliance with the regulations. In turn, an employer may seek indemnification from its accountant for these penalties. Additionally, the DOL often refers these matters to the AICPA, or the state societies, for investigation of the accountant.

One of our clients, a CPA firm with two partners, was investigated by the AICPA for alleged deficiencies in the audit of one of these plans. The AICPA focused on whether the CPA firm had the required expertise and experience to perform this audit and whether the accountant’s opinion letter complied with the DOL’s standards. After we provided the AICPA with a detailed response to their investigation, the AICPA discontinued their investigation. Ron Joseph led the LCBF team in successfully defending the accounting firm.

LCBF recently tried to a successful conclusion a Nassau County case in which a company sued its accounting firm for almost $1 million after its bookkeeper embezzled $684,000 by putting her husband on the payroll. The CPA firm had performed accounting for the defendant for at least 30 years. The CPA firm had been retained to review the plaintiff’s financial statements for the period of the fraud. LCBF argued that the CPA firm complied with the applicable AICPA standards and that it was not responsible for uncovering the fraud. The LCBF team was headed by Ron Joseph.

After the criminal case against him was dismissed, plaintiff filed a civil rights lawsuit against the arresting detectives in the Southern District of New York claiming that he was wrongfully arrested and that the detectives exercised unreasonable use of force, including a choke hold, seeking both compensatory and punitive damages. The jury determined that the arrest was lawful and that the detectives exercised reasonable use of force. The LCBF team was led by Ron Joseph.

In Nussbaum v. Metro-North Commuter R.R., 2015 WL 859565 (2d Cir. 2015), affm 994 F. Supp. 2d 483 (S.D.N.Y. 2014), the Second Circuit restated the general law that a plaintiff who alleges that a defendant created a dangerous condition must prove, not only that the defendant knew or had reason to know of the condition, but that the defendant knew or had reason to know of the danger, i.e., that the condition it created was dangerous. The LCBF team was headed by Andrew P. Keaveney.

In Kaminski v. 924 West End Ave, Inc., the Supreme Court, Kings County, granted summary judgment to a building owner represented by LCBF, dismissing Labor Law §§ 241(6) and 200 claims of plaintiff, who tripped over an electrical cord. The court accepted LCBF’s argument that the building owner did not control the means and methods of plaintiff’s work or create the condition that caused plaintiff to trip and fall. The court also accepted LCBF’s argument that the sidewalk area where plaintiff was working was not a passageway pursuant to the Industrial Code and that the electrical cord, which belonged to a grinder used by plaintiff’s foreman, was an integral part of the work being performed. The LCBF team was headed by Gerry Ford.

In Fox v. SLS Residential, Inc. (Sup. Ct. Nassau County), the firm obtained summary judgment for an owner and administrator of a psychiatric facility sued by the family of a woman who had been decapitated and dismembered by an out-patient. Previously, the Appellate Division, Second Department, dismissed the malpractice claims, 88 A.D.3d 131, but allowed the case to proceed on the negligence claims. After conducting discovery, the firm successfully moved for summary judgment. Ron Joseph headed the LCBF team.

In Alanna Stone v Police Department and Two Police Officers (S.D.N.Y.), after the criminal case for disorderly conduct against her was dismissed, plaintiff filed a civil rights lawsuit against the two arresting officers and their department claiming wrongful arrest and police brutality, and seeking both compensatory and punitive damages. The jury exonerated one officer and found that, although the other officer should not have arrested her, there was no police brutality. It awarded plaintiff only $15,000 in compensatory damages and no punitive damages. Prior to trial plaintiff’s counsel had demanded $500,000 to settle the matter, and in summation, asked the jury to award damages of $1 million. After the trial, plaintiff’s counsel sought legal fees of approximately $470,000 and legal costs of approximately $28,000. The court awarded plaintiff’s counsel only $50,000 in fees and $25,000 in costs. The LCBF team was lead by Ron Joseph and included Bill Ballaine and Tina Bhatt.

In Elias v. Federal Home Loan Mortgage Corp., 2014 WL 3702597 (6th Cir. 2014), affirming 2013 WL 5372887 (E.D. Mich. 2013), the Sixth Circuit rejected all of plaintiffs’ arguments on appeal and upheld the dismissal, on a Rule 12(b)(6) motion, of a complaint filed by a real estate broker and his companies claiming that their inclusion on Freddie Mac’s Exclusionary List (“E-List”) violated the antitrust laws and constituted interference with contract, defamation, and civil conspiracy. The decision extends Family Home, 525 F.3d 822 (9th Cir. 2008), and permits E-list claims to be dismissed on a pre-discovery Rule 12(b)(6) motion. Further, the Sixth Circuit held that a party’s inclusion on the E-list is not necessarily equivalent to an accusation of fraud or illegal business practices, and rejected plaintiffs’ argument that various factual allegations gave rise to a plausible inference of malice. The LCBF appeal team was headed by Gerry Ford and Mark Landman.

Amtrak sued John Davis Trucking (“JDT”) in federal court in Reno, Nevada for damages to its equipment and for expenses arising from a 2011 crossing collision in Lovelock, Nevada, which resulted in six fatalities and several serious personal injuries, when JDT’s tractor-trailer struck an Amtrak train. LCBF also represented Union Pacific (“UP”), which JTD sued. JDT claimed the warning devices at the crossing failed to activate properly and that the Amtrak train illegally accelerated on the approach to the crossing. JDT also argued that spoliation of evidence provided a strong inference in its favor on the issue of the crossing devices not functioning properly. Prior to submission of the case to the jury, District Judge McKibben directed a verdict for Amtrak on JDT’s counterclaim against it. The jury found that JDT was 100% at fault for the accident. In the damages phase of the trial, the jury awarded over $4.5 million in damages to Amtrak and $210,000 to the UP. The LCBF trial team was headed by Mark Landman and Bill Ballaine.

In Muro v. The MITRE Corp. et al. (New Jersey Superior Court), plaintiff alleged violations of the New Jersey Law Against Discrimination and Conscientious Employee Protection Act based upon alleged electronic communications. Through forensic computer investigation, LCBF demonstrated that plaintiff had fraudulently modified electronic communications and intentionally deleted records. As a result, the court granted summary judgment dismissing the complaint and, given plaintiff’s spoliation of evidence, awarded defendants $150,000 in counsel fees and $118,000 for costs and forensic/electronic data expenses. The LCBF team was headed by Joseph M. Tomaino, and Mark Landman.

In Ward v. Affinia Group, et al., the New Jersey Superior Court, Middlesex County, granted summary judgment to LCBF’s client on the ground that there was no evidence to establish that decedent worked with or around an asbestos-containing product made by the client. Plaintiffs argued that an affidavit by decedent’s son, stating that decedent’s shop used the client’s product and that the product was dusty, created an issue of fact precluding summary judgment. We argued that the affidavit was a “sham” because it sharply contradicted earlier testimony and did not identify any asbestos-containing product manufactured by our client that the decedent was actually using. The court rejected the affidavit and found that “from the evidence presented on the record [there was] a reasonable inference that some [products] contained asbestos, [but] there was no connection made between the ‘possible’ [products] sold by [the shop across the street] and Decedent actually using that [product].” The LCBF team was headed by Joseph Tomaino.

In Wallace v. Nat’l R.R. Pass. Corp., 2014 WL 1088906 (S.D.N.Y. March 18, 2014), the district court ruled that Amtrak was entitled to a declaration, prior to trial of the underlying personal injury claims, that its contractor, Weeks Marine, was contractually obligated both to pay Amtrak’s defense costs and fees and to indemnify Amtrak against the personal injury claims of Weeks’ employee against Amtrak. The district court rejected Weeks’ contention that, based on New York state law, these determinations had to await the trial and determination of the underlying claims. The district court also looked, in part, to insurance law principles in deciding that Amtrak had not been obligated to use the defense counsel retained by Weeks to represent Amtrak because Weeks’ reservation of its rights not to indemnify Amtrak created a conflict of interest which entitled Amtrak to select its own defense counsel. The LCBF team was headed by Bill Ballaine and Ron Joseph.

The United States Bankruptcy Court for the Southern District of New York has approved a settlement consisting of an immediate cash payment of $767 million to resolve the claims of LCBF client Freddie Mac. Freddie Mac’s claims involved complex derivative transactions, short term loan transactions, and mortgage seller/servicer related obligations. Lehman’s demise in 2008 resulted in one of the largest and most complex bankruptcies in U.S. history. LCBF’s team, headed by Mark Landman and Sophia Ree, was responsible for filing Freddie Mac’s proofs of claim and in pursuing the claims and, with the conservator’s counsel, negotiating the settlement.

In National Railroad Passenger Corporation v. The City of New Brunswick, the United States District Court for New Jersey signed a consent order vacating tax assessments and tax sales that had occurred on Amtrak-owned property within the City of New Brunswick and further ordered the City not to issue any future tax assessments, tax bills or conduct tax sales on any Amtrak-owned property within the City. The consent order followed a pre-discovery summary judgment motion filed by LCBF that sought to enforce Amtrak’s statutory exemption from local property taxes. The LCBF team was headed by Gerry Ford.

In Schofield v. Avante Contractive Corp., the Supreme Court, Westchester County, granted the summary judgment motion of a general contractor represented by LCBF and dismissed Labor Law §§ 240(1), 241(6), and 200 claims of plaintiff, who fell from an unsecured ladder. The court accepted LCBF’s argument that plaintiff was the sole proximate cause of the accident because he did not remove or request the removal of Sheetrock on the floor that served as an obstruction. The LCBF team was headed by Gerry Ford.

In two consolidated declaratory judgment actions pending in the Supreme Court, Bronx County (Del Savio Masonry Corp. v. American Empire Surplus Lines Ins. Co. and Avalon WP I et al. v. American Empire Surplus Lines Ins. Co.), the court granted two motions for summary judgment filed by LCBF on behalf of its insurer client seeking a declaration that it did not have a duty to defend or indemnify two insureds on the ground that the insureds failed to provide timely notice of the occurrence of the underlying accident. The LCBF team was headed by Jerry Cuomo and Gerry Ford.

In Arriaga-Hernandez v. MTA, New York County Supreme Court Justice Stallman granted a motion made by LCBF on behalf of the defendant to compel the production of the plaintiff’s cell phone records despite the fact that there was no evidence that claimant was on his phone at the time he was struck by defendant’s train and plaintiff had denied during his PALH that he used his cell phone while at the station. The LCBF team was headed by Phil DiBerardino.

In Rodriguez v. Winski, 2013 WL 5379880 (S.D.N.Y. 2013), District Judge Naomi Buchwald issued a 40-page decision dismissing most of the 49 separate claims asserted by a group of Occupy Wall Street protestors, elected officials, and journalists against LCBF clients, the MTA Police Department, its commissioner and various officers, and others including the City of New York, Mayor Bloomberg, the NYPD, J.P. Morgan Chase and the owner of Zuccotti Park. The 939-paragraph Amended Complaint included claims of violations of plaintiffs’ First and Fourth Amendment rights, violation of New York State constitutional rights, conspiracy, and state law claims. The Court dismissed almost all the claims against the MTA defendants, which arose from an arrest during an OWS protest at Grand Central Station, and granted LCBF’s motion to sever the remaining claims against LCBF’s clients from those remaining against the other defendants. The LCBF team was headed by Phil DiBerardino and included Bill Ballaine.

Three partners of a prominent accounting firm were investigated by the American Institute of Certified Public Accountants for alleged misconduct. The firm prevailed in getting the matter dismissed without any action taken by the AICPA against any of the accountants. The LCBF team was headed by Ron Joseph.

In Mallozzi v. EcoSMART, 2013 WL 2415677 (E.D.N.Y.), LCBF obtained summary judgment dismissing plaintiff’s claims that he had suffered permanent injuries and needed future medical treatment as a result of brief exposure to our client’s pest control product. Defendant vigorously disputed these claims as the active ingredients in the product consist of various plant oils. LCBF successfully challenged the opinions of plaintiffs’ occupational and environmental health expert pursuant to Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1983). As a result of the expert’s opinions being deemed unreliable, plaintiff could not establish a causal connection between the alleged exposure and the claimed injuries. The LCBF team was headed by Joseph M. Tomaino.

In Stowe v. National Railroad Corp., 2012 WL 4360436 (2d Cir. 2012), affirming 793 F. Supp. 2d 549 (E.D.N.Y. 2011), the Second Circuit rejected all of the plaintiff’s arguments on appeal and upheld a zero damages verdict after LCBF’s client had conceded negligence. Among other things, the plaintiff had argued that the Supreme Court’s Decision in CSX Transp. Inc. v. McBride, 131 S. Ct. 2630 (2011) required a new trial because the FELA jury charge on causation omitted the phrase “no matter how small. “The plaintiff asserted this phrase was mandatory after McBride because the charge approved in McBride had contained that language. Agreeing with the LCBF position on appeal, the Second Circuit ruled that because the jury charge given by the trial court tracked the language of the statute, the charge was not erroneous. The LCBF team was headed by Gerry Ford and Mark Landman.

In Paladini v. Capossela, Cohen, LLC, 2012 WL 3834655 (S.D.N.Y. 2012), Chief Judge Loretta Preska of the Southern District granted, with prejudice, the motion to dismiss LCBF filed on behalf of the accounting firm it represented. The Court found, among other things, that plaintiff’s claims failed as a matter of law because of an absence of proximate cause. Specifically, the Court agreed with the accounting firm that plaintiff, when deciding to enter into two 2007 loans and distributions (for almost $100 million), could not have relied on the firm’s 2007 audit in any manner as the audit was not completed until the following year. The LCBF team was headed by Sophia Ree.

The Fourth Circuit Court of Appeals has issued an opinion affirming summary judgment on behalf of our client Freddie Mac that it owed Doral Bank PR no more than $124,588 in mortgage servicing fees, rejecting Doral’s claims for damages exceeding $10.87 million. The majority opinion held that the contract clause Doral tried to rely upon was an unenforceable liquidated damage clause, rather than an “alternative performance contract,” as Doral attempted to characterize it. In mid 2008, Freddie Mac had informed Doral that it would not be transferring more than 45,000 mortgage loans to Doral for interim servicing. In accordance with the parties’ agreement, Freddie Mac offered to pay $124,588 representing the costs it understood Doral had incurred to prepare for the potential transfer of these loans. Without documenting additional actual costs, Doral rejected the offer and demanded well over $10 million. The LCBF team was headed by Bill Ballaine and Mark Landman.

As trial approached, LCBF was retained as trial counsel to defend a railroad in a 2010 accident at a crossing in University Heights, Illinois, where the warning signals had been inadvertently deactivated by maintenance workers, resulting in the untimely death of a 26-year old ballet instructor and dancer. After a full day of trial in Cook County Circuit Court, the case was settled for $6 million. The LCBF team was headed by Mark Landman.

Ruling on several important issues of federal civil procedure, the court in Mendoza v. Federal National Mortgage Ass’n held that (1) it had subject matter jurisdiction to review a sua sponte remand order because the remand was not based upon a lack of subject matter jurisdiction; (2) the district court had no authority to remand a case more than 30 days after removal if the remand was not based upon a lack of subject matter jurisdiction; (3) Freddie Mac had not waived its right to remove by filing an unlawful detainer action in state court with regard to the same property at issue in the removed case, since it dismissed that action following removal; and (4) the district court lacks authority to remand a case at any time based upon a “procedural defect” and a waiver is a procedural defect. The LCBF team, which was retained as oral argument approached, was headed by Mark Landman.

In Sotomayer v Metropolitan Transp. Authority, 92 A.D.3d 862 (N.Y. App. Div. 2d Dep’t 2012), plaintiff was engaged in the requisitioning and gathering of parts used by others in the course of performing maintenance and modification of existing passenger railroad cars. The appellate division affirmed the trial court’s ruling in favor of LCBF’s client that plaintiff was not engaged in construction, excavation, or demolition work, as required for liability under Labor Law § 241(6). The LCBF team was headed by Bill Ballaine.

In Dahar v. Holland Ladder & Mfg. Co., 18 N. Y 3d 521 (2012), aff’g 79 A.D.3d 1651 (4th Dept 2010), New York’s highest court affirmed the Appellate Division, Fourth Department, in dismissing a strict liability claim on the grounds that Labor Law §240 did not apply to plaintiff’s accident, which occurred while he was allegedly “cleaning” a fabricated wall module beam that was being prepared by the manufacturer for shipment to its purchaser. The LCBF team was headed by Bill Ballaine.

In Bianca Jagger v. Katz Park Avenue, the Appellate Term, First Department reversed the trial court and threw out plaintiff’s bodily injury claims. Plaintiff, the ex-wife of Mick Jagger, sought in excess of $20 million in damages for injuries allegedly sustained as a consequence of water damage and resultant mold growth in her rent-stabilized Park Avenue apartment. The court accepted LCBF’s arguments that, although plaintiff’s experts inspected the apartment on multiple occasions, they never collected reliable evidence that the air in the apartment contained excessive (or hazardous) amounts of mold. The court held: “[n]otably, plaintiff’s environmental expert merely collected indoor air samples on a single day, a showing insufficiently reliable to demonstrate the level of toxicity, if any, in plaintiff’s apartment.” As there was no admissible evidence of any injurious exposure, the court held that plaintiff’s bodily injury claims should have been dismissed. LCBF also argued that plaintiff’s causation expert’s opinions — that mold was capable of, or in fact have caused, plaintiff’s alleged injuries — were inadmissible junk science. Given the court’s findings regarding the lack of a valid evidentiary showing of an injurious exposure, it did not address the medical causation arguments.

In Sadek v. Greyhound, venued in New York County, LCBF prevailed at a Frye hearing during trial, precluding plaintiff from proceeding to the jury with respect to his claims that he suffered a stroke as a result of an accident involving a Greyhound bus. Plaintiff, who also alleged orthopedic injuries, shoulder surgery and recommended back surgery, had demanded $10 million to settle case, including a future wage loss of $5 million. After medical testimony by several neurologists, and arguments by counsel, the court ruled that plaintiff’s theory of medical causation (that plaintiff suffered a stroke due to the stress of the accident/spike in high blood pressure and the contortion of his body caused by the impact) was not generally accepted in the medical community of neurology. It also ruled that plaintiff’s theories of causation were new theories, presented after a jury had already been selected and thus, were prejudicial to the defense. As a result of LCBF’s success at the Frye hearing, plaintiff dismissed his orthopedic claims and is pursuing an appeal on the court’s ruling precluding the stroke. The LCBF team was headed by Diane Ruccia.

In Cervantes v. Countrywide Home Loans, Inc., 2011 WL 3911031 (9th Cir. Sept. 7, 2011), the Ninth Circuit affirmed the dismissal of a putative class action challenging foreclosure procedures for home loans listing the Mortgage Electronic Recording Service (MERS) as the beneficiary on deeds of trust. This was an appeal from the district court in Arizona handling the MDL proceedings (In Re MERS MDL Litigation). LCBF took the lead in drafting the appellate brief on behalf of the MERS “shareholder defendants,” including firm client Federal Home Loan Mortgage Corp. (“Freddie Mac”). Mark Landman heads the team handling the matter.

In Stowe v. Amtrak, 2011 WL 2516939 (E.D.N.Y. 2011), LCBF obtained a ruling denying the plaintiff’s post-trial motions following a defense verdict from a jury in an FELA case tried in Brooklyn. The 40-year old plaintiff cash clerk alleged that a safe door fell on top of her causing multiple injuries to her neck, spine, chest and left shoulder. Plaintiff had surgery and extensive medical treatment for several years leading up to trial. She alleged orthopedic injuries, PTSD, and depression. Despite Amtrak’s concession, the jury returned a defense verdict. Mark Landman tried the case on behalf of Amtrak. Mark and Gerry Ford handled the post-trial motions.

In Cevasco v. Amtrak, 606 F. Supp. 2d 401 (S.D.N.Y. 2010), LCBF successfully handled five actions in the Southern District of New York arising out of a construction accident in which a high rail crane rolled approximately 4,000 feet and struck five workers at another construction site. The workers sustained significant injuries including a foot amputation, de-gloved leg, brain injuries, hearing loss, fractured clavicle, a collapsed lung, and spinal, shoulder and knee injuries requiring a cervical decompression with fusion, laminectomy with fusion and AC joint resection. The court ruled that, regardless whether Amtrak had been negligent in operating or maintaining the crane, Amtrak’s co-defendant contractors were contractually responsible for defending and indemnifying Amtrak. All of the matters were thereafter settled without any monetary contribution from Amtrak. The LCBF team was headed by Bill Ballaine and Ron Joseph.

In Sanders v. Grenadier Realty, Inc., 367 Fed. Appx. 172 (2d Cir. 2010), the Second Circuit upheld the district court’s order dismissing the tenant plaintiffs’ claims that our clients had violated plaintiffs’ rights under the Fair Housing Act and the First Amendment by refusing to grant the tenants rent subsidies. The LCBF team was led by Bill Ballaine, who argued the appeal, and Sophia Ree.

In Archstone v. Tocci Building Corporation of New Jersey, the Commercial Division of the Supreme Court, Nassau County issued a lengthy decision denying plaintiffs’ claims that a certain forensic architect’s reports were privileged, noting that plaintiffs submitted sworn testimony that “smacks of revisionist history.” LCBF represents the general contractor in this suit brought by the developer/owner of a residential community in Westbury, Long Island. The site consists of twenty residential buildings, a community clubhouse and several out-buildings, which were constructed at a cost of approximately $40 million. Plaintiff alleges damages in excess of $70 million. The LCBF team is headed by Dan Moretti.

In Montgomery v. Cheshire Harding, 2009 WL 332026 (Vt. Supr. 2009), LCBF won a final appeal resulting from a Vermont action where the plaintiff was run over by a forklift and suffered catastrophic injuries, including the loss of his right leg at the hip. LCBF was brought in to try the case. Plaintiff’s settlement demand before trial was $25 million. After obtaining a defense verdict at trial in the Vermont federal court, LCBF successfully handled plaintiff’s post-trial motions and a collateral appeal to the Vermont Supreme Court. The LCBF trial team was headed by John Bonventre and the appellate team by Gerry Ford.

In McGuinn v. LifeCell Corp., LCBF obtained a defense verdict dismissing an executive officer’s discrimination (race and gender) claims following trial and post-trial submissions in this binding arbitration. The LCBF team was headed by Joseph Tomaino.

In Kerusa Co. LLC v. W10Z/515 Real Estate Limited Partnership, 12 N.Y.3d 236 (2009), a seminal case interpreting the Martin Act, LCBF obtained dismissal of all fraud claims asserted against the condominium sponsor and developers by the wealthy owner of a luxury condominium apartment in a newly-constructed Park Avenue high-rise building, which allegedly had construction defects. The Court of Appeals held that because the NY Attorney General bears sole responsibility for implementing and enforcing Martin Act requirements relating to the purchase and sale of security interests in condominium apartments, a condominium apartment purchaser may not pursue a claim for common-law fraud against the building’s sponsor when the fraud is predicated solely on alleged material omissions from offering plan amendments mandated by the Martin Act and the Attorney General’s implementing regulations. Bill Ballaine argued the case.

In Hepburn v. LIRR, venued in the Eastern District of New York, LCBF obtained a defense verdict for the LIRR in a FELA suit, where a former conductor alleged head, neck and throat cancer from second-hand tobacco smoke exposure (“ETS”) while he was a conductor on “smoking trains.” Had plaintiff’s cause of action been successful, LIRR and other railroad defendants would have been exposed to significant future liability for ETS claims by former railroad employees and passengers. The LCBF team was headed by John Bonventre.