Haworth Barber & Gerstman, LLC

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Victory Report

Multiple Plaintiffs v. Micro-mobility Company, New York State Supreme Court, New York County (2021) - Scott Haworth, Jennifer Bruder and the HBG defense team successfully filed multiple motions to compel arbitration and dismiss civil lawsuits on behalf of the firm's client, a national micro-mobility ridesharing company. The plaintiffs rented vehicles throughout New York City through the use of a smart phone application. The plaintiffs were involved in accidents while operating the vehicles and commenced lawsuits against the firm's client, alleging negligence. Plaintiffs also argued that the online contract they entered into with the firm's client through the smart phone application, which included a mandatory arbitration clause, was not valid and that the plaintiffs were entitled to bring suit against the firm's client in New York State Supreme Court. HBG moved to dismiss the lawsuits and compel arbitration arguing, in part, that the online contract was valid and enforceable, and that the plaintiffs were on notice of the terms and conditions including those requiring that any disputes be submitted to arbitration. Multiple judges in New York State Supreme Court across several different cases uniformly agreed with the firm's arguments and held that the plaintiffs had inquiry notice of the online contracts and the terms and conditions set forth therein. The courts further held that the arbitration clauses are valid as drafted, that the manner of presentation is appropriate and that HBG's client's business involves interstate commerce. As such, the arbitration clause is valid and enforceable.

Estate of Decedent v. Medical Equipment Company,New York State Supreme Court, Suffolk County (2021) - Tara Fappiano and Constantinos Tsanatelis obtained a decision in favor of HBG's client, a company that supplies oxygen concentrators. Plaintiff claims that the decedent was severely burned when an oxygen concentrator allegedly caught fire in decedent's home. A lawsuit was filed which included allegations of product liability, negligent failure to warn, and breach of express and implied warranties. After discovery was completed, plaintiff moved to amend the plaintiff's bill of particulars to change the date of the alleged accident. HBG opposed the motion arguing that there was no evidence adduced during discovery to support the plaintiff's petition to amend the accident date. Furthermore, HBG argued that such an amendment would cause unfair prejudice to the defendants as discovery was already completed. The court denied the motion and held that the amendment could not be permitted pursuant to CPLR 2001, which allows for the correction of a mistake, omission, defect, or irregularity in a pleading, if the substantial right of a party is not prejudiced. The court agreed with HBG's argument that permitting the amendment would require reopening discovery to the extent of re-deposing all witnesses and would unfairly prejudice HBG's client. Thereafter, HBG successfully leveraged the court's ruling into a beneficial settlement on behalf of its client.

Plaintiff Contractor v. Fire Safety System Inspector, New York State Supreme Court, New York County (2021) - Richard Barber and David Kong obtained a voluntary dismissal of all claims and cross-claims asserted against the firm's client, a company that inspects the adequacy of fire safety systems in commercial buildings. The plaintiff, an employee of a subcontractor at an active construction site, claimed to have slipped and fallen on construction debris. Plaintiff sustained multiple injuries requiring invasive surgery and sued upwards of fifteen defendants. After initial written discovery was exchanged and plaintiff was deposed, HBG aggressively pursued a voluntary dismissal of all claims and cross-claims against its client on the bases that its client did not create the debris upon which the plaintiff slipped, and the client was not present at the site on the date of the accident prior to its occurrence. Rather than oppose a motion which would seek sanctions against the plaintiff and co-defendants due to the frivolous nature of the claims against HBG's client, all parties agreed to voluntarily discontinue the claims against HBG's client.

Plaintiff Pedestrian v. Medical Practice, New York State Supreme Court, New York County (2021) - Richard Barber and Samantha Cornell obtained summary judgment on behalf of its client, a medical practice that operated a clinic on the ground floor of a commercial building in Manhattan. While jogging at night, the plaintiff allegedly tripped and fell on a significant sidewalk defect located adjacent to the building's entrance. Plaintiff sustained significant injuries which allegedly required multiple invasive surgeries. Plaintiff's settlement demand was in the mid-seven figures. Prior to the conclusion of discovery, HBG moved for summary judgment on multiple grounds including that they owed no duty to maintain the subject sidewalk pursuant to contract or common law, and that it was unquestionably the responsibility of the property owner to maintain the sidewalk. The court granted HBG's motion finding that they owed no duty of care to any of the parties to the lawsuit and as such, a prima facie case of negligence could not be established against HBG's client.

Plaintiff Pedestrian v. Commercial Property Owner, New York State Supreme Court, New York County (2021) - On behalf of a commercial property owner, Richard Barber obtained summary judgment against a co-defendant restaurant, enforcing a contractual indemnity provision within the lease governing the restaurant's tenancy. The plaintiff was injured while walking on a sidewalk abutting the premises when she tripped over an open basement door located on the sidewalk. The co-defendant tenant used the basement doors to access that area of the premises for storage and was doing so at the time of the accident. Despite tendering its client's defense and indemnity several years ago, neither the tenant nor its insurance carrier responded. As such and following the deposition of plaintiff and a representative of the tenant, the latter of whom established that the open basement doors were under the sole control of the tenant without any involvement from HBG's client, HBG moved for summary judgment seeking to enforce its right to contractual indemnity. Following oral argument, the court granted HBG's motion finding that the terms of the indemnity provision are enforceable and as such, the tenant must defend, indemnify and hold HBG's client harmless. This ruling required the tenant to reimburse HBG's client for fees and expenses incurred in HBG's defense of the claims against its client.

Plaintiff Contractor v. Commercial Property Owner, New York State Supreme Court, Orange County (2021) - Richard Barber obtained a voluntary dismissal of all claims and cross-claims against the firm's client, a commercial property owner. The plaintiff was a contractor working at a construction site when he fell from a scaffold. Although the plaintiff's initial complaint indicated that the accident occurred in a commercial building owned by HBG's client, HBG's investigation revealed that no such project was ongoing on the date of the accident. Upon providing this information to plaintiff's counsel, counsel conferred with his client and determined that the accident occurred at a different address. Thereafter, HBG served an Affidavit on behalf of its client establishing that the client had no relationship to the premises where plaintiff was injured. As such, the parties agreed to voluntarily discontinue the action against HBG's client prior to conducting significant written discovery or any depositions.

Plaintiff v. Landscape Architect, New York State Supreme Court, Suffolk County (2021) - Richard Barber and Schawn-Paul Rotella obtained summary judgment in a lawsuit involving a fall from a height at a residential home. HBG's client was a landscape architect who installed pavers on a multi-level deck in the course of a multi-million-dollar home renovation project. Several years later, the plaintiff was walking along the deck when she fell from one level to another sustaining serious injuries. At the conclusion of discovery, HBG moved for summary judgment seeking dismissal of all claims against its client. HBG argued, in part, that there was no evidence to suggest that its client work was anything less than workmanlike and that plaintiff's testimony does not suggest that the accident occurred as a result of the work performed by HBG's client. The motion was ultimately granted, saving HBG's client significant time and expense in either attending trial or settling the matter.

Estate of Contractor v. Electrician New Jersey Superior Court, Essex County (2021) - Scott Haworth and Schawn-Paul Rotella obtained summary judgment on behalf of our client, a regional electrical contractor. While installing a gutter, the decedent made contact with a live power line, resulting in his death. HBG argued that our client, which never performed work at the subject premises despite plaintiff's counsel's assertions to the contrary, did not owe a duty to the plaintiff and did not cause or contribute to the subject accident. HBG obtained critical documents from the local municipality that affirmatively demonstrated our client's lack of involvement with the subject premises. Those documents were submitted in support of our motion for summary judgment which was granted prior to engaging in significant additional discovery.

Plaintiff v. Supermarket, New Jersey Superior Court, Bergen County (2021) - Scott Haworth and John Megjugorac obtained summary judgment on behalf of our client, a regional supermarket. Plaintiff was reportedly injured when she tripped and fell in the store's dairy aisle. Surveillance footage from inside the store showed that plaintiff walked into a mobile storage cart while attempting to reach for orange juice. Relying upon the surveillance video and plaintiff's own deposition testimony, the Court found no evidence that the supermarket breached any duty of care to plaintiff. The Court granted HBG's motion for summary judgment and dismissed all claims against the supermarket.

Decedent v. Third-Party Plaintiff General Contractor v. Roofing Subcontractor, New Jersey Superior Court, Essex County (2021) - Richard Barber and John Megjugorac obtained summary judgment on behalf of their client, a roofing subcontractor, in a wrongful death matter. While working on a roof, plaintiff's decedent, who was employed by the firm's client, fell and sustained fatal injuries. Decedent's estate sued the construction project's general contractor and landowner. In turn, the general contractor and landowner filed a Third-Party Complaint against the firm's client. Based upon recent developments in the law, HBG filed a motion for summary judgment before discovery was completed. HBG argued that because plaintiff never alleged an intentional wrong claim against his employer, the Third-Party Complaint is barred by the New Jersey Workers Compensation bar, N.J.S.A. 34:15-8. The Court agreed with HBG and dismissed all claims against the roofing subcontractor.

Plaintiff v. Contractor New Jersey Superior Court, Middlesex County (2021) John Megjugorac obtained summary judgment on behalf of HBG's client, a stucco contractor. Plaintiff was an employee of HBG's client and allegedly sustained serious personal injuries when he fell from a scaffold. Plaintiff brought suit against the landowner and various contractors including his employer. At the conclusion of discovery, HBG filed a motion for summary judgment based upon the New Jersey Workers Compensation bar, N.J.S.A. 34:15-8, which only permits direct suits against an employer if the evidence demonstrates that the employer committed what is essentially an intentional wrong. HBG argued that there was no such evidence to sustain the claims against its client and the court agreed, dismissing all claims against HBG's client with prejudice.

Plaintiff Home Owner v. Rug Manufacturer and Designer, New Jersey Superior Court, Passaic County (2021) - Richard Barber and Schawn-Paul Rotella obtained a voluntary dismissal on behalf of HBG's client, a rug manufacturer and distributor. The plaintiff claimed to sustain multiple serious injuries, including a broken neck, as a result of slipping on a rug and falling in his own home. Plaintiff commenced a lawsuit against various entities believed to be in the chain of distribution of the rug, alleging that the product was defectively designed and manufactured and contained inadequate warnings. Prior to engaging in significant discovery, HBG worked with its client to locate documents which demonstrated that the client could not have manufactured or designed the rug because they had no business relationship with the retailer from whom plaintiff purchased the product prior to the accident. By submitting an Affidavit on behalf of HBG's client, along with documentary evidence, all parties reluctantly agreed to voluntarily dismiss their respective claims against HBG's client.

Plaintiff Business Invitee v. Commercial Tenant, New Jersey Superior Court, Bergen County (2021) - Richard Barber successfully secured a voluntary dismissal of the claims asserted against its client, one of several tenants in a commercial building. Plaintiff allegedly tripped and fell down a slight of stairs located in one of the common areas of the building. Upon being retained, HBG immediately conferred with its client, obtained a copy of the lease governing its client's tenancy and determined that its client had no responsibility to maintain the subject staircase. Further investigation confirmed that the plaintiff was not a client/customer of HBG's client and that HBG's client was not otherwise involved in the accident. Upon learning this information, HBG promptly contacted plaintiff's counsel and requested a voluntary dismissal. Despite the fact that no discovery had been exchanged and the co-defendant landlord had not yet entered an appearance in the case, plaintiff's counsel agreed to voluntarily dismiss the claims against HBG's client.

Plaintiff Tenant Employee v. Commercial Property Owner,New Jersey Superior Court, Essex County (2021) - Richard Barber and John Megjugorac successfully tendered its client's defense and indemnity and obtained a dismissal of all claims against HBG' client with prejudice. The plaintiff was working in a warehouse when he slipped and fell on the warehouse floor in the course of his employment with a nationwide pre-prepared meal distributor. Upon being retained, HBG immediately obtained and analyzed the pertinent lease governing the tenancy of plaintiff's employer. After tendering its client's defense and indemnity and commencing a third-party action against the plaintiff's employer, the employer's insurance carrier agreed to accept the tender and reimburse HBG all fees and expenses incurred in defense of its client. In addition, the third-party plaintiff fully funded a global settlement without any financial contribution on behalf of HBG's client.

Plaintiff v. Construction Equipment Leasing Firm, et al. New York County, (2020) Partner Barry Gerstman and the Haworth Barber & Gerstman, LLC (HBG) team in New York obtained summary judgment for the firm's client, a construction equipment leasing firm, in a vehicular wrongful death case. The case involved a plaintiff who, while using a man lift to hang Christmas lights on trees on Columbus Avenue in Manhattan, he was struck by a tractor trailer driving south and thrown from the bucket of the manlift. He died shortly thereafter. Mr. Gerstman moved for summary judgment in favor of his client on multiple grounds including that it could not be held liable for negligent entrustment, that it was not vicariously liable for the actions of the lift operator and that it was shielded from liability based on the Graves Amendment. The Court, using much of the language and case law cited in HBG's motion, found:

The case remains pending against the building owner and the tractor trailer driver and owner and the decision has been appealed to the Appellate Division, First Department.

Plaintiff v. Construction Management Firm, et al. Bronx County, (2020) Partner Barry Gerstman and the Haworth Barber & Gerstman, LLC (HBG) team in New York obtained summary judgment in favor of the firm's client, a Construction Management/Resident Engineering firm, on a high exposure construction injury case venued in Bronx County. The case involved a laborer who was injured while working at a major capital construction project taking place at the Jamaica Wastewater plant. He underwent multiple spinal fusion surgeries as a result of the accident and claims that he can no longer work. The Court, in granting summary judgment, found that the Construction Manager's contract excluded responsibility for overseeing plaintiff's means and methods and the accident arose out of those methods. The Court dismissed the Labor Law §§ 240, 241 and 200/negligence claims HBG's client finding that it did not direct, supervise or control plaintiff's work, that it lacked notice of a hazardous condition and that there was no violation of the cited Labor Law sections. The case remains pending for trial against the remaining defendants.

Pedestrian v. Commercial Property Owners New York State Supreme Court, New York County, (2020) Barry Gerstman and Samantha Cornell obtained a pre-answer dismissal in a lawsuit arising out of a trip and fall accident in Westchester County where plaintiff sustained a significant shoulder injury requiring surgery. Gerstman and Cornell secured an affidavit from their client and property ownership information demonstrating that their client had sold their interest and had not been involved with the subject property for approximately ten years prior to the accident. After pressuring plaintiff with a potential summary judgment motion seeking costs and after reviewing our client's affidavit, plaintiff agreed to the discontinuance and the stipulation was so-ordered by the Court.

Pedestrian v. Commercial Property Lessor New York State Supreme Court, Kings County, (2020) Scott Haworth obtained a voluntary dismissal on behalf of our client, a regional supermarket. The plaintiff, a pedestrian, allegedly tripped and fell on a raised portion of sidewalk. HBG argued that our client, which leased its property and was situated farther down the block from where the accident occurred, did not owe a duty to the plaintiff to maintain that portion of the sidewalk pursuant to New York City Administrative Code § 7-210. Shortly after interposing an answer and prior to conducting any depositions, HBG filed a motion for summary judgment. This quickly prompted the parties to voluntarily discontinue all claims and cross-claims against our client.

Pedestrian v. Commercial Property Owner New York State Supreme Court, Bronx County, (2020) Richard Barber obtained a voluntary dismissal on behalf of a commercial property owner in a lawsuit arising out of an alleged trip and fall inside a bank. Following the initial exchange of written discovery and prior to commencing depositions, the co-defendant tenant/bank globally settled the case with the plaintiff without any contribution on behalf of HBG's client. In addition, following an aggressive pursuit of contractual defense and indemnity on behalf of its client, HBG secured reimbursement of counsel fees and expenses from the co-defendant/tenant in accordance with the terms of the applicable lease.

Electrician v. Commercial Property Owner New York State Supreme Court, Orange County, (2020) Richard Barber obtained a voluntary dismissal of plaintiff's claims against a commercial property owner in a lawsuit arising out of a construction accident. The plaintiff, an employee of an electrical subcontractor, was injured during a construction project when he tripped and fell on a metal pipe located on the floor of the construction site. As a result of the accident, the plaintiff allegedly sustained serious personal injuries which resulted in one knee surgery with a recommendation to undergo another surgical procedure. Plaintiff initially alleged that the accident occurred at a commercial property owned by HBG's client. After confirming that the accident occurred at a different property and that HBG's client had no relationship to the location of the accident, plaintiff voluntarily dismissed his claims against HBG’s client with prejudice. The dismissal was secured prior to engaging in significant, costly discovery.

Pedestrian v. Retail Store New York State Supreme Court, New York County (2019) Early Summary Judgment Granted. On April 25, 2019, Scott Haworth obtained summary judgment dismissing plaintiff's complaint in this fall down matter involving an accident in front of HBG's client's retail store on the Upper West Side of Manhattan, New York. Significantly, Mr. Haworth filed the motion before any depositions had been taken and after only minimal paper discovery had been completed, in a successful effort to save our client from the expense of prolonged discovery in this multi-party matter. In support of the motion, Mr. Haworth relied upon our client's Lease, which addressed responsibility for all aspects of the sidewalk adjacent to the store as well as the condominium's Bylaws. An Affidavit from our client's representative established that the law regarding "special use" was inapplicable as the sidewalk was not used for that purpose. In granting the motion, Judge Freed of the New York County Supreme Court noted that, our client owed no duty to the plaintiff, did not violate any of the myriad codes and regulations asserted by the plaintiff to have been violated and as urged by our client, had not made special use of the sidewalk or created the alleged dangerous condition. The court flatly rejected the opposition of multiple parties arguing that the motion was premature due to a lack of discovery.

Inoa v. CEI, et al., New Jersey Superior Court, Middlesex County (2016). Richard Barber and Dominique Romano recently obtained a voluntary dismissal with prejudice on behalf of a leading manufacturer of personal care and household products. The plaintiff allegedly slipped and fell on snow and ice outside the manufacturing facility. Through aggressive written discovery prior to costly depositions, we were able to demonstrate that, pursuant to contract or common law, our client could not as a matter of law bear liability for the alleged dangerous condition.

Ramirez v. Solar Management, New Jersey Superior Court, Essex County (2015). Richard Barber obtained summary judgment on behalf of a kitchenware distribution company in a matter arising out of an assault that occurred in the parking lot of the business. Plaintiff was placed at the distribution company's business by a temporary staffing agency nearly a decade prior to the subject incident. Plaintiff was assaulted by a non-party assailant in the common area parking lot while reporting for work. The distribution company shared the parking lot with all other building tenants and security was provided by the co-defendant premises property owner. Following extensive discovery and motion practice, summary judgment was granted to the distribution company as the court held that plaintiff was a special employee of the distribution company. Accordingly, plaintiff was unable to maintain her lawsuit against the company pursuant to New Jersey's workers' compensation law. It was specifically argued that (i) an implied contract of hire existed between the defendant distribution company and plaintiff over the years that she repeatedly reported to the company's business for work; (ii) the work performed by plaintiff in packaging goods was the same business the distribution company was involved in; (iii) the distribution company controlled all aspects of the plaintiff's work; (iv) plaintiff's wages were effectively reimbursed by the distribution company to the non-party staffing agency; and (v) the distribution company had the right to fire plaintiff. Thus, all five factors of the special employment analysis as set forth in Kelly v. Geriatric and Medical Services, Inc., 287 N.J.Super. 567, 571-572, 671 A.2d 631 (App.Div. 1996) aff'd o.b., 147 N.J. 42, 685 A.2d 943 (1996), were fulfilled.

Attique v. Carttronics, New York State Supreme Court, Queens County (2016). Richard Barber obtained summary judgment on behalf of a shopping cart loss prevention system manufacturer in a product liability and negligence matter arising out of a trip and fall over a wire component that had become exposed on a sidewalk. The wire, which was part of the loss prevention system, was intended to be buried beneath a concrete sidewalk. Prior to the accident, the wire became exposed above the sidewalk grade, causing plaintiff to trip and fall when she attempted to walk across the sidewalk. The loss prevention system was designed and manufactured by Carttronics. Summary judgment was granted to Carttronics because plaintiff was unable to establish that the system was defectively designed or manufactured or that Carttronics was otherwise responsible for maintenance, repair or installation of the system and/or the raised wire involved in the accident.

Figueroa v. Johnny's Landscaping, New Jersey Superior Court, Middlesex County (2016). Richard Barber and Scott Haworth obtained summary judgment on behalf of a snow removal company in a matter arising out of a slip and fall on snow and ice. Summary judgment was granted to Johnny's Landscaping as the firm successfully argued that their client had no duty to remediate snow and/or ice from the sidewalk upon which plaintiff fell on the morning of the accident prior to its occurrence. More specifically, the firm contended that their client's obligation to service the subject sidewalk was not triggered on the date of the accident due to minimal snow accumulations and that the course of conduct engaged in by their client did not support the argument that they had a proactive duty to service the premises during any winter precipitation event.

Triangle Plumbing v. Gerard Packing, New Jersey Superior Court, Middlesex County). Richard Barber obtained a voluntary dismissal on behalf of a plumbing component manufacturer in a product liability matter arising out of a flood of a new medical arts building. The flood occurred when a commercial plumbing company improperly installed a hot water circulator, causing several million dollars of damages to the premises. As the parties were unable to establish that the firm's client manufactured or was otherwise involved in the chain of distribution of the failed plumbing component and there was no evidence that the failed component was defectively designed or manufactured, the parties agreed to voluntarily dismiss all claims and cross-claims against the firm's client.

American Automobile Insurance Company a/s/o Iris Apfel v. Hallak Cleaners, et al., 2015 WL 4476112 (S.D.N.Y. 2015). Firm obtained summary judgment in a subrogation matter involving alleged substantial damage to couture clothing owned by renowned fashion icon and interior designer Iris Apfel. Plaintiff alleged that the damage resulted from dry cleaning services provided by defendant Hallak Cleaners. The court granted summary judgment dismissing the Complaint in its entirety on the basis that the Complaint was not timely filed pursuant to the applicable statute of limitations.

Walter Pantovic v. Sprint Communications Company, L.P. et al., 117 A.D.3d 538, 986 N.Y.S.2d 67 (1st Department, 2014). Scott Haworth obtained a decision in favor of our client, a major telecommunications company, in which the Appellate Division, First Department unanimously upheld the lower court's decision to dismiss all of plaintiff's causes of action on the merits. Plaintiff claimed that extremely high temperatures emanating from the company's cell site, located adjacent to his office in a residential Manhattan building, caused him to suffer personal injuries when he passed-out while atop an A-frame ladder in the room housing our client"s cell site and fell, striking his head. Plaintiff allegedly sustained severe traumatic brain injury in addition to orthopedic injuries, resulting in significant life-altering changes and a total inability to work. Plaintiff alleged causes of action for common law negligence, as well as violations of Labor Law § 240(1), 241(6) and 200. The court agreed with our client's argument, and the lower court"s holding, that plaintiff's activities did not involve any of the protected activities enumerated under Labor Law § 240(1). With regard to Labor Law § 241(6), our client successfully contended that no provision of New York's Industrial Code could be shown to have been violated and that contrary to plaintiff's assertions, alleged violations of OSHA do not afford a plaintiff a private right of action. Regarding plaintiff's causes of action under Labor Law § 200 and common law negligence, the court agreed that the telecommunications company did not authorize, supervise or exercise control over plaintiff's work in the cell site room and that plaintiff's contention that extremely high temperatures in the cell site room caused his fall were speculative and therefore, inadmissible.

Trident Radiological Equipment LLC v. Brighton Enterprises, LLC., Supreme Court of the State of New York, Kings County (2014). Firm successfully moved to obtain a full dismissal of plaintiff's complaint on a pre-answer basis. Plaintiff, a commercial sublessee, asserted claims against our client, the commercial sublessor, for property damages arising from flooding that occurred as a result of Superstorm Sandy. Plaintiff set forth causes of action for negligence, breach of the sublease agreement, nuisance and breach of the covenant of quiet enjoyment. Our client's motion argued that liability for damages arising from the elements was precluded by the terms of the sublease, and that to the extent plaintiff claimed that a failure to make structural repairs contributed to the occurrence, such repairs were the responsibility of the property owner and not our client. Following oral argument, the court dismissed all claims against our client with prejudice. .

Harriett Spitaleri v. Medical Depot Inc., Superior Court of the State of New Jersey, Middlesex County (2014). Haworth Barber & Gerstman, LLC successfully obtained an early dismissal of plaintiff's complaint, with prejudice. Plaintiff claimed that a medical device manufactured by our client was defective and caused her to fall and sustain personal injuries. Plaintiff asserted a strict liability claim as well as a claim for punitive damages. Through aggressive discovery and investigation, we demonstrated that plaintiff could not sustain any cause of action against our client and obtained a full dismissal prior to commencing depositions.

Plaintiff v. Heavy Truck Manufacturer, Superior Court of New Jersey, Monmouth County (2014). Scott Haworth and Barry Gerstman obtained a voluntary dismissal with prejudice on behalf of a sanitation truck manufacturer sued in a product liability action. The case involved a sanitation worker who sustained a significant hand injury including a traumatic amputation while using the truck's compacting system. Following a motion for summary judgment based on lack of successor liability, plaintiff agreed to a voluntary dismissal with prejudice of all claims against our client. The litigation continued against the remaining defendants.

Rodriguez v. Athenium House Corp. et al., 1:11-cv-05534-LTS-KNF (S.D.N.Y. 2013) Scott Haworth and Barry Gerstman obtained summary judgment in a matter involving plaintiff, a U.S. Postal Letter Carrier who alleged that, while delivering mail at a residential Manhattan building, a bulletin board located above the building mailboxes fell, striking him on the head. Plaintiff alleged severe traumatic brain injury, resulting in a permanent inability to work, as well as significant psychiatric and physical damages. In addition to retaining a mechanical engineer to testify regarding the allegedly defective manner in which the bulletin board was installed, plaintiff planned to call experts in pain management, physiatry, psychology, psychiatry and economics. In granting the defendants' summary judgment, United States District Judge Laura Taylor Swain held that defendant's retention of general supervisory powers was insufficient to defeat defendant's "independent contractor" defense regarding the installation of the bulletin board. Additionally, Judge Swain held that absent speculation, plaintiff was unable to demonstrate the existence of notice. Additionally, the court rejected plaintiff's claim under the doctrine of res ipsa loquitur.

Commercial Building Owner v. Municipality, Superior Court of the State of New Jersey, Union County. Scott Haworth, Barry Gerstman and Richard Barber obtained summary judgment on behalf of a New Jersey municipality in a lawsuit arising out of the construction of a retaining wall located on a portion of the plaintiff's premises. The wall was constructed in connection with state-approved improvements to a natural wetland creek and culvert that ran between the plaintiff's property and the municipality's property. The plaintiff alleged that the construction of the retaining wall damaged his building and constituted negligence, trespass and an unconstitutional taking of his property. Following oral argument of the municipality's motion for summary judgment, the court dismissed the entirety of plaintiff's allegations and denied plaintiff's cross-motion for summary judgment. The court held that because the work performed was pre-approved by the New Jersey Department of Environmental Protection, the municipality was immune from liability pursuant to the Design or Plan Immunity provision of New Jersey's Tort Claims Act. The court further held that, although the retaining wall was built above-ground on plaintiff's property, it did not change the natural flow of water, did not constitute an encumbrance upon the land and therefore could not be the basis for a trespass or inverse condemnation claim. In addition, the court opined that because the plaintiff was unable to demonstrate that he was denied reasonably beneficial use of his property, the inverse condemnation claim was not actionable.

Plaintiff v. Major Telecommunications Company, Supreme Court of the State of New York, New York County. Scott Haworth obtained summary judgment on behalf of a major telecommunications company. Plaintiff claimed that extremely high temperatures emanating from the company's cell site, located adjacent to his office in a residential Manhattan building caused him to suffer injury when he passed-out while atop an A-frame ladder in the room housing the cell site and fell, striking his head. Plaintiff alleged causes of action for negligence as well as alleged violations of Labor Law Sections 240(1), 241(6) and 200. The court agreed with our client's argument that plaintiff's activities did not involve any of the protected activities enumerated under Labor Law Section 240(1). As to Labor Law Section 241(6), our client successfully contended that no provision of New York's Industrial Code could be shown to have been violated and that contrary to plaintiff's assertions, alleged violations of OSHA are not relevant to a Labor Law Section 241(6) determination. Regarding Labor Law Section 200 and plaintiff's cause of action for common law negligence, the court agreed that the telecommunications company did not authorize, supervise or exercise control over plaintiff's work in the cell site room and that any finding that its negligence played any role in the happening of the accident, which was alleged to have resulted in severe traumatic brain injury with cognitive deficits and a permanent inability to work, would be inherently speculative.

Plaintiff v. Pool Manufacturer, Supreme Court of the State of New York, Rockland County. This product liability matter involved an allegation that plaintiff sustained severe cervical spinal injuries when he slipped from a pool ladder, causing him to impact the bottom of an above-ground swimming pool. Our firm was assigned to represent the pool manufacturer when discovery was nearly complete, by which time plaintiff had asserted violations of numerous pool standards, standards related to the pool's ladder and specific theories of failure to warn. Our firm immediately retained a biomechanical engineer highly regarded in the ladder industry and participated in accident reconstruction testing that demonstrated that plaintiff's injury could only have occurred if he dove into the 36 inch deep pool. Additional experts were retained in the fields of warnings and pool standards, whose qualifications are beyond reproach. Lastly, we deposed hospital personnel whose testimony established that the plaintiff was intoxicated at the time of the accident. Notwithstanding several multimillion dollar settlement demands, the case was settled for a nominal amount shortly before trial.

Grygo v. 1116 Kings Highway Realty, LLC, et al., 2012 N.Y. Slip Op. 05139, _ N.Y.S.2d _ (2d Dept. 2012). On June 27, 2012, the New York State Appellate Division, Second Department upheld a lower court decision granting our clients, an owner and general contractor, summary judgment dismissing plaintiff's New York Labor Law §§ 200, 240 (1) and 241 (6) claims. The underlying matter arose out of a construction site accident where the plaintiff, a union painter, sustained serious personal injuries when a cart filled with dry-wall tipped over onto his leg moments after removing plastic sheeting he previously draped over the cart. Barry Gerstman and Richard Barber successfully argued that the lower court's decision granting summary judgment should be affirmed because (i) the defendants did not exercise supervision and control over plaintiff's work, a pre-requisite to establishing liability pursuant to § 200; (ii) the dry wall and its cart were of an insufficient height to trigger the protections of § 240 (1) – New York's "scaffold law" – and the accident was not caused by a failure to provide a statutorily enumerated safety device; and (iii) because the accident occurred in an open work space, not a passageway, walkway, stairway or other thoroughfare, § 23-2.1 (a) (1) of the New York City Industrial Code was not implicated, and plaintiff was therefore unable to establish liability pursuant to §241 (6) of the Labor Law. Although plaintiff abandoned his § 200 claim, he argued on appeal that the Supreme Court incorrectly dismissed his claims pursuant to §§ 240 (1) and 241 (6) because the weight of the material that fell had the potential to cause serious injury even if it fell from a low height and also that New York Industrial Code § 23-2.1 (a) (1) obligated an owner or general contractor to store materials in a safe manner even if not obstructing a thoroughfare. Following the submission of appellate briefs and oral argument, the Second Department affirmed the Supreme Court's Order, holding that because the accident was not a result of a failure to provide an adequate safety device, but was merely the byproduct of a general hazard encountered at a construction site, plaintiff could not establish liability pursuant to § 240 (1). The Second Department likewise held that the Supreme Court properly determined that because the accident did not occur in a passageway, walkway, stairway or other thoroughfare, § 23-2.1 (a) (1) of the New York City Industrial Code did not apply, and plaintiff was unable to establish liability pursuant to § 241 (6) of the Labor Law. Click here to read the full Article »

Bowman v. Marathon Medical Corp., et al. and Calo v. Marathon Medical Corp., et al., United States District Court, District of New Jersey, Civil Action 10-cv-4403: On May 31, 2012, the Honorable Dennis M. Cavanagh, U.S.D.J., issued an Opinion dismissing this putative class action in its entirety. The plaintiffs alleged that they were economically damaged when allegedly counterfeit surgical mesh was implanted during surgery. Judge Cavanagh, in a decision that tracked several other recent "no-injury" class action dismissals in which Scott Haworth was involved, dismissed plaintiffs' complaint in its entirety, holding that plaintiffs had no standing, as they had demonstrated no injury-in-fact. Based on a Joint Brief authored by Haworth Barber & Gerstman, LLC and submitted on behalf of all defendants in both of these consolidated actions, Judge Cavanagh also discussed each individual cause of action alleged by plaintiff, holding that plaintiff would in any case fail to make out a prima facie case of consumer fraud, unjust enrichment or breach of warranty.

 

Hot Off the Presses

Scott Haworth authored the New Jersey Chapter of "The DRI Product Liability Compendium: Warnings, Instructions, and Recalls," which has been published by the Defense Research Institute. Scott Haworth and his colleagues are long-standing contributors to this publication. The 2012 publication focuses on the most current issues confronting manufacturers and product liability practitioners today. For decades, the pre-sale duty to warn and instruct has been and continues to be the basis of much consternation by manufacturers and product sellers and the bane of many defense lawyers trying to defend the myriad of cases alleging a failure to warn. Failing to comply with the post-sale duty to warn, on the other hand, has served as the basis of most punitive damage awards and has been recognized for its expansive nature in the realm of product liability law. The DRI Product Liability Compendium: Warnings, Instructions, and Recalls was assembled to give readers a comprehensive summary of the current U.S. common law, as well as international common, civil, and regulatory law, in both of these areas–pre-sale warnings and post-sale duties to warn or fix a defective product–and to demonstrate how the two areas are inextricably intertwined. Recognizing that product liability has become global and that accidents, court rulings, regulatory activities, and settlements anywhere in the world can be easily discovered, it is clear that manufacturers and product sellers must consider all geographical areas in which they sell their products when deciding how to comply with pre-sale and post-sale duties and how to defend claims and litigation based on these duties.

"Effective Use of Industry Standards to Cross-Examine a Liability Expert Witness" by Scott Haworth was published in the July, 2012 issue of Trials and Tribulations. Click to read the full article »

Partners Scott Haworth's article entitled "Stopped Before They Start: Dismissing No-Injury Class Actions" has been published in the December 2010 issue of For the Defense. Click to read the full article »

An article authored by Scott Haworth entitled, "The Product Liability Preemption Problem: No Clear Directive From the Supreme Court," was published in the Defense Research Institute's June 8, 2011 issue of The Voice.
Click here to read the full Article »

Haworth Barber & Gerstman, LLC was featured as July 2011's Leadership Profile in The Whisper, the DRI Young Lawyers Committee monthly newsletter. Click here to read the full Article »

An article authored by Scott Haworth and Barry Gerstman entitled, "Pre-Suit Claims Against Component Suppliers", was published in the Defense Research Institute's November 2011 issue of The Voice. Click here to read the full Article »

Trial Tactics Update

Scott Haworth will be presenting at DRI's Seminar on Trial Tactics commencing on March 20, 2013 in Las Vegas. Mr. Haworth will speak about the use, direct and cross-examination of vocational rehabilitation and economic experts.

Recreational Products Update

On April 13, 2012, Scott Haworth moderated DRI's Specialized Litigation Group meeting at the 2012 DRI Product Liability Seminar. The group heard presentations and discussed the biomechanics of accidents involving motorcycles, ATVs, personal watercraft and exercise equipment, among other products, including a discussion of the use of demonstrative evidence in the courtroom. There was also a presentation involving the defense of fire matters involving recreational vehicles and an update of important cases involving these types of products decided during the past year. Scott Haworth is the Chairman of the Recreational Products Specialized Litigation Group.

The Law of Recalls

On Wednesday, April 6, 2011, Haworth Barber & Gerstman, LLC presented a talk entitled "Action is the Antidote to Despair: Defending the Recalled Product" to the Young Lawyers Committee Breakout Session at the DRI Product Liability Seminar. Ms. Coleman provided insight into navigating the complicated process of evaluating and defending claims made against recalled products, and the best strategies for success, both before and during litigation.

No Injury? No Problem. The So-Called "No Injury" Class Action

During a meeting of DRI's Product Liability Committee leaders, Scott Haworth of Haworth Barber & Gerstman, LLC talks about "no injury" product liability suits, which involve claims that a product is defective, and while it has caused no harm, plaintiffs are nevertheless entitled to monetary relief. According to Mr. Haworth, these claims, involving a variety of products, have been filed in jurisdictions throughout the contry. The presenters discussed the theories underlying these matters, how the courts have handled them and what they may hold for the future.