Partner, Lynda Liebhauser to speak at the 2022 CLM Alliance Annual Conference

Partner, Lynda Liebhauser will be presenting at the CLM Alliance Annual Conference on the session titled “The Blame Game: Retail, Restaurant & Hospitality Edition”. The CLM conference will take place from March 23rd to March 25th., 2022 in Palm Desert, CA.

Session Description – “The Blame Game: Retail, Restaurant & Hospitality Edition”

Just like the popular CLM Magazine Blame Game series, we will produce information about actual jury verdicts including facts about liability and damages, as well as venue and other key elements, and offer opinions about the outcome, including soliciting participation by attendees. Verdicts will be from across the country and will focus on claims made against retail, restaurant, and hospitality businesses.

Partner, Claire Rush to speak at the 2022 CLM Alliance Annual Conference

Partner, Claire Rush will be presenting at the CLM Alliance Annual Conference on the session titled “New Strategies for Defending Questionable Spinal Fusion Claims”. The CLM conference will take place from March 23rd to March 25th., 2022 in Palm Desert, CA.

Session Description - “New Strategies for Defending Questionable Spinal Fusion Claims”

Senior-level claims officers, trial attorneys, and a board-certified radiologist will discuss innovative strategies for identifying and defending cases that are likely to result in spinal surgery and seven-figure demands. Learn how the spine works, the tell-tale signs that a spinal fusion surgery is in the offing, best practices for pre-trial discovery, strategies for mediation and trial, and rebutting themes related to COVID-19 isolation claims and reptile theory approaches.

BMM Wins Appellate Victory in Labor Law Case

In a labor law case against our clients, the owner and general contractor of a job site, Partner Patrick Kenny was granted summary judgment and plaintiff’s Labor Law 240(1) and Labor Law 241(6) causes of action were dismissed. Plaintiff appealed the decision. Patrick then argued the case on appeal before the Appellate Division, First Department. The First Department dismissed plaintiff’s remaining common law negligence and Labor Law 200 claims following argument.

In this case, plaintiff tripped and fell after stepping over cross bracing in scaffolding to walk from one part of a job site to another, even though he testified he was aware of openings in the scaffolding for him. Moreover, there was nothing defective, broken or otherwise wrong with the scaffold itself and it did not shift when plaintiff tripped on it. The First Department found that the cross bracing was not inherently dangerous and that plaintiff was the sole proximate cause of his fall. They reasoned that as a result, plaintiff’s remaining claims failed as a matter of law.

This was an excellent result for BMM’s clients. It demonstrates that not every accident at a construction site in New York City is actionable.

BMM Founder, John J. Moore

The firm announces the sad news that John J. Moore passed away at home on January 14, 2022, at the age of 88. Mr. Moore was a founding member of Barry McTiernan & Moore. He graduated from Jersey City State Teacher’s College and served in the US Army, returning to the United States in 1958. He attended New York Law School at night while working as a teacher during the day. He worked for Continental Insurance Company and received his Master’s Degree from NYU in 1970.

Mr. Moore built our firm and partnered with Roger McTiernan, Sr. as the firm expanded in the 1970’s and 1980’s. As they built BMM into a premier insurance defense firm, Mr. Moore also served as a Vice-President of the Defense Research Institute and President of the Catholic Insurance Guild. He was the President of the Defense Association of New York.

In the 1980’s, Mr. Moore was appointed to the Board of Trustees of Jersey City State College and named Chairman of the Board in 1989, where he served for two decades. He was inducted into the Jersey City State College Athletic Hall of Fame for Men’s Basketball in 1989 and was later honored with the naming of the John J. Moore Athletic and Fitness Center.

While at the firm, Mr. Moore created a monthly newsletter of significant decisions, “Of Legal Significance,” which was sent to clients and carriers. He was known in the office as a “lawman” and had a strong work ethic. But he was not always talking about work. He enjoyed tennis and travel especially to Italy.

Mr. Moore is survived by his wife Carmella whom he married in 1957. He leaves behind his daughter Christine and son John, both of whom became attorneys. He is also survived by his daughter-in-law Laura and two grandchildren. The family is having a private mass this week and a memorial service will be organized for colleagues and friends in the Spring.

BMM Granted Summary Judgment in Premises Liability Case

Partner, Tom Muldoon, and Associate, Melissa Wolin, obtained summary judgement in a slip and fall case in Rockland County for BMM’s client, the owner of the property. Plaintiff alleged he had just parked his car at the train station when he slipped and fell on ice after exiting his vehicle. However, during his deposition, plaintiff failed to articulate that what actually caused his fall was in fact the ice. He testified he never actually saw the ice, and was unable to state its size, color or dimensions. In addition, he was not able to identify where it was. He surmised that his fall must have been from ice. Therefore, the court reasoned that because plaintiff was unable to identify the cause of his fall, his negligence action failed as a matter of law. This was a strong trial level victory for our client and reflects the importance of preparation and detailed questioning of the critical witness during depositions.

Partner, Patrick W. Kenny Obtains Successful Risk Transfer on behalf of the Firm’s Property Client

Partner, Patrick W. Kenny, Esq., was successful in obtaining a tender acceptance from a tenant and their insurer for a client that owned the property on which plaintiff alleges he fell. Given the lease agreement between our client and the tenant, it was clear that sidewalk maintenance and snow and ice removal are the responsibility of the tenant. This formed the basis for Patrick to push the contractual risk transfer to the tenant. After months of back and forth with counsel for the tenant, and insurers for the parties at issue, an agreement was finally reached. This means that our client and its carrier are now protected by a further layer of coverage and the carrier does not need to continue paying defense costs to defend the suit. This successful risk transfer was accomplished against a set of facts that contain allegations of severe injuries. Plaintiff was 68 years old on the date of the alleged accident when he slipped and fell due to snow and ice on a sidewalk with an alleged defect, and as a result of falling on his side, broke numerous ribs resulting in hospitalization. While in the hospital the plaintiff experienced cardiogenic shock, a hemothorax, and underwent a heart valve replacement surgery. In addition, plaintiff is a medical doctor and claims he missed significant time from his vocation resulting in lost wages. Both liability and damages would have been costly to the client and its insurer to defend this matter, which makes this a noteworthy victory for our client and its carrier.

BMM Obtains Dismissal in Premises Liability Lawsuit

In an unwitnessed slip and fall accident in the Bronx, the plaintiff initially sued the owner and building management company for creating a water condition on an interior staircase. BMM’s plumbing contractor client was brought into the case several years later as a third-party defendant, and the plaintiff thereafter sought to assert a direct claim. Charles O'Bryan O’Bryan of our office filed a motion to dismiss the direct claim arguing that it was untimely. Plaintiff’s counsel opposed the motion and asserted that our client was ‘united in interest’ with the primary defendants. After hearing argument, the Court granted our motion, relying heavily on Charles’ arguments and dismissed the direct complaint. Obtaining a dismissal of the direct claim in the plaintiff friendly Bronx was another success for the BMM team and its clients.

BMM Appellate Victory in New Jersey

The New Jersey Appellate Division recently affirmed the Trial Court's Order granting summary judgment on behalf of our client, the owner of the property and its management company in a dangerous high exposure case. Plaintiff allegedly slipped and fell due to a substance on the floor and/or a napkin. In the underlying action, partner Cara E. Manz Manz successfully argued that the “Mode of Operation” doctrine was inapplicable and that the plaintiff was unable to prove the Defendants had notice of a dangerous condition. Plaintiff appealed the Trial Court's Order dismissing Plaintiff's complaint. Our opposition was written by Laurel Wedinger and Bob Mathias argued the appeal. After argument, the Appellate Division agreed that Plaintiff failed to establish actual or constructive notice of a dangerous condition and declined to extend the “Mode of Operation” doctrine based on the facts presented. In addition, the Appellate Division also affirmed our argument denying spoliation, finding it to be without merit. Despite being confronted with a seven-figure demand, our attorneys successfully presented our arguments at the trial and appellate level which resulted in a full dismissal of the lawsuit.

Summary Judgement Granted in COVID-19 Coverage Case

(New Jersey) - Senior partner Anthony W Guidice has obtained a Summary Judgment for a corporate insurance carrier facing a property damage lawsuit for high six-figure revenue losses associated with the closure of the plaintiff's hair salon during the pandemic. Plaintiff alleged that COVID-19 caused property loss and physical harm to the premises, that the virus exclusion was inapplicable, and that New Jersey Governor Murphy's Closure Order on March 16, 2020, was the proximate cause of the shutdown.
Guidice argued that to trigger coverage, there must be physical harm or property damage and that it must be a material alteration or "actual" physical damage to the property. Further, even if coverage were to be triggered, the virus exclusion contained in the policy was clear and unambiguous and must be read as written. Finally, Guidice argued that the proximate cause of the shutdown was due to the virus, rather than Governor Murphy's Closure Order.
The Court’s dismissal of the lawsuit was a major victory for our client, as this was the first case faced by this carrier. Hundreds of lawsuits have been filed by policyholders seeking damages for breach of contract and business interruption associated with the pandemic. We anticipate that continued litigation will address the impact of the pandemic on businesses and insurers as this emerging area of the law develops.

Ryan Rayder Successfully Obtained Summary Judgment on behalf of Construction Management Client

Associate Ryan Rayder successfully obtained summary judgment dismissing the plaintiff’s complaint against the firm’s construction client in a Labor Law case. The plaintiff claimed he sustained multiple injuries while performing construction work in the basement of a job site from fallen debris. The Complaint alleges violations of the common law and Labor Law 200, 240, and 241(6) with the plaintiff seeking damages and lost wages in the six figures.

Rayder, after careful collaboration and coordination with our client, was able to submit an affidavit in support of the motion, that showed BMM client did not perform any work in the area where the plaintiff’s accident occurred and was not the general contractor for this project. In the Court’s decision, they stated that the plaintiff’s arguments in opposition, that it was premature to award summary judgment as discovery and the depositions of all parties had not yet taken place, were not sufficient.

Rayder successfully executed our client’s target goal for early case resolution. Thus, the dismissal of the complaint against our client before any significant discovery and/or any depositions took place, saving our client significant time and expenses. This is yet another example of the firm’s approach to early proactive action where issues of law can be readily resolved. Life Cycle is an integral key performance indicator at Barry, McTiernan & Moore with attorneys like Mr. Rayder continuing to lead the way in facilitating early dispositions.

Annual St. Edmund Preparatory Golf Outing

On October 7, 2021 associate Ryan Rayder, Class of 2010, attended the annual St. Edmund Preparatory High School Golf Outing. This year’s event was located at Lawrence Yacht & Country Club. It was a fun and memorable day for all participants.

St. Edmund Preparatory High School is a Roman Catholic college preparatory school for young men and women, located in Sheepshead Bay, Brooklyn, New York.

The Prep’s mission is to empower their student to become confident and self-disciplined participants in the ever-changing global society and to educate their students in accordance with the needs of each student, challenging them to achieve academic excellence through practical learning experiences.

“St. Edmund Prep provided me with not only a world-class education but also taught me how to be an advocate for others. As attorneys, we provide a voice for those who need one. We use our skills to advocate and reach favorable outcomes for our clients. We place the needs of others before our own. All those core values I learned from St. Edmund Prep. To be able to help ensure that future students and graduates of the Prep can have that same experience is special.”

Jennifer Cheong Successfully Obtained Dismissal for Commercial Client

Associate Jennifer Cheong successfully obtained summary judgment on behalf of BMM client, a commercial tenant with dismissal against the plaintiff, a convenience grocery store in West New York, NJ. The suit was filed by two longtime residential tenants alleging severe personal injuries and property damages due to a catastrophic fire at the four-story building. While it was alleged that the fire originated in our client’s store, the official investigation deemed the cause and origin of the fire as “undetermined.” At the close of discovery, Ms. Cheong moved for summary judgment arguing the plaintiffs failed to establish their case; specifically, they failed to show that our client was negligent or that the plaintiff could rely upon doctrine of res ipsa loquitur. After reviewing the motions and hearing oral argument, the court dismissed the complaint in favor of our client. This successful result prior to trial garnered a positive outcome for our client.

Partner, Patrick Kenny Achieves Excellent Result For Owner and Landlord Who Risked Personal Exposure

Partner, Patrick W. Kenny, obtained a dismissal of plaintiff’s complaint and contractual indemnification from co-defendant tenants in an alleged trip and fall action in Kings County (Brooklyn), a difficult jurisdiction for defendants. Plaintiff alleged that he tripped and fell due to a defective condition located on the border of a sidewalk and parking lot. He sustained a fractured ankle which required surgery and also underwent surgery on his lower back.

BMM represented the owner and landlord of the premises, and filed an appearance despite the client being in default for almost two years. After addressing the default and filing an appearance, Patrick pursued discovery expeditiously despite delays caused by the pandemic. Once he completed discovery, Patrick filed a motion for summary judgment which the Court permitted despite the earlier delays and untimeliness of the motion. Patrick argued that plaintiff had failed to identify the cause of his fall and therefore could not prove proximate cause as a matter of law. In addition, Patrick argued that the leases required the tenants to indemnify the owner-landlord. The court agreed and dismissed plaintiff’s complaint against the owner, and also awarded indemnity in the owner’s favor from both tenants.

Through his aggressive work on this case, Patrick was able to achieve an excellent result for the client who risked personal exposure given the earlier default. By careful analysis of the facts and contracts, as well as strategic motion practice, Patrick was able to turn a problem file into a victory.

Managing Partner, Alex Malino Presenting at the 2021 CLM Annual Conference

Barry McTiernan & Moore’s Managing Partner, Alex Malino will present at the 2021 CLM Annual Conference that will be held in Atlanta from August 11-13th. Mr. Malino will be presenting on the topic: Judging what matters in today’s tri-part relationship using KPI’s, BI, and other emerging measures in litigation management.  Joining Mr. Malino will be Mr. John McGann, Esq., Head of Litigation and Vendor Management for AXA XL and Mr. James Martin, JD, Director, Major Case Unit with Gallagher Bassett.

 This session will focus on the existing and emerging tools used to measure success in litigation management.  It will focus on vendor management-based selection of law firms and the metrics involved in decided what, who and when to use certain Law Firms.  The session will also discuss the analysis of Corporate, Law Firm and Insurance Company business intelligence considerations when evaluating the efficiency and long-term relationship of the three.

Mr. Malino regularly advises and speaks to personal corporate clients on various topics, such as New York Labor Law, federal preemption, indemnity and insurance coverage issues. He has successfully completed the CLM Litigation Management Institute and is a Certified Litigation Management Professional (CLMP).

Prior to presenting, he will join other CLM members for a day of service with Hearts to Nourish Hope.  Hearts to Nourish Hope is a non-profit dedicated to advancing opportunities for youth and young adults aged 16 – 24. By providing vital resources and programs, the group enables students to reinforce life skills, confidence and education to improve circumstances. Students at Hearts to Nourish Hope learn what it means to work hard and strive to create a better life today and for years to come.

Dismissal Obtained for Client in Asbestos-Related Cancer Case

(New York, NY)- BMM Of Counsel, Jason Riemer, and Executive Partner, Suzanne Halbardier obtained a dismissal for a client after filing a motion for summary judgment.  After reviewing the motion filed by the firm, plaintiff’s counsel conceded they would not succeed and agreed to a dismissal.

Plaintiff alleged that he was exposed to asbestos at a powerhouse where he performed repairs.  He alleged exposure to equipment at the facility because of others working in his presence.  While he claimed that our client had equipment present at the site, the firm conducted extensive research from publicly available records to demonstrate that we did not sell or ship equipment to plaintiff’s worksite.  The client also submitted proof that it did not ship any equipment to plaintiff’s worksite. 

After submitting the motion, we were contacted by plaintiff’s counsel.  Having reviewed the documents submitted in support of our motion, counsel acknowledged that we would likely succeed at summary judgment.  A dismissal was signed in our client’s favor, thus avoiding a lengthy and costly trial.

NY Legislators to Consider Significant Expansion of Wrongful Death Statutes

Written by Patricia Sullivan

Bills seeking to amend and expand New York’s Estates, Powers and Trusts Law (E.P.T.L.) have been introduced in the Senate and Assembly with significant proposed changes as to the wrongful death statute of limitations, the nature of the awards, and those eligible to bring the actions.

If passed, the time period within which to commence the litigation would be enlarged from the current two-year statute of limitations to a period of three and one-half years after the date of death. The change is said to be aimed to bring wrongful death actions in line with New York’s three-year personal injury statute of limitations, with an extra six months added to reflect the time needed for Surrogate’s Court to approve an estate representative with standing to commence the action.

In terms of damages, they would no longer be limited to pecuniary losses. In addition to compensation for items such as funeral expenses and medical care costs, the proposals now include, as compensable items, “grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish,” as well as awards for the loss of “love, society, protection, comfort, companionship, and consortium,” and for the loss of “nurture, guidance, counsel, advice, training, and education” resulting from decedent’s death.

Those entitled to damages would no longer be solely one’s distributees, or decedent’s parents in certain circumstances, as the class of those entitled to bring wrongful death actions would now be specifically broadened to include “surviving close family members, which may include but are not limited to, spouse or domestic partner, issue, parents, grandparents, step-parents and siblings.” The sufficiency of the degree of “closeness” of the relationship is to be determined by the finder of fact.

The proposed amendments address E.P.T.L. Sections 5-4.1, 5-4.3, 5-4.4 and 5-4.6. The language reads that the Act shall “take effect immediately, and shall apply to all pending actions, and actions commenced on or after such date.”

The bills are being termed the “Grieving Families Act,” as proponents claim New York’s wrongful death laws, initially enacted in the mid 1800’s, perpetuate racial, gender and class disparities. While a provision may be in order reflecting the various family relationships which are now commonplace, there is no reason to disturb the prior wrongful death statute of limitations or to create such a vast expansion of types of claimed damages.

Notably, there is no proposed inclusion of a reconsideration of New York’s 9% interest rate on wrongful death verdicts, interest which runs from date of death per CPLR 5004, although that figure may be considered outdated, as it does not reflect current rates or offer ranges, as in other jurisdictions.

The proposed legislation would significantly increase the awards for verdicts in cases involving those with limited economic losses, including those involving the elderly, children, or persons with limited income. Such changes well may raise the cost of doing business in the State of New York.

Similar amendments have been attempted and failed in prior years. Now however we are coming out of a difficult year, filled with losses in many families. Emotions still are running very high. Particularly in light of the February 2021 Court of Appeals decision in Greene v. Esplanade Venture Partnership 2021 NY Slip Op 01092, where the zone of danger rule was expanded to include a grandparent-plaintiff (who was in close proximity to the decedent-grandchild,) such that grandparents are now deemed to be part of one’s “immediate family,” and where there is colloquy in favor of expanding damages for emotional damages, the proposed amendments should be taken seriously.

If anyone should wish to comment upon the bills, please note they are referred to as A-6770 and S-74-A and are still in the respective committees. They are to be considered in the 2021-2022 Legislative Session, so you may wish to find your senator and/or assemblyperson and express your views now.

Defense Association Of New York (“Dany”) Releases Ratings for The Judicial Vacancy on The New York State Court of Appeals

The Defense Association of New York (“DANY”), today released its ratings of the seven nominees recommended by the New York State Commission on Judicial Nominations to fill the Associate Justice seat on the New York State Court of Appeals that was vacated by the untimely passing of the Hon. Paul G. Feinman.

DANY’s 9-person Judicial Screening Committee was chaired by Barry McTiernan and Moore partner Claire F. Rush, current Vice President of the Defense Association of New York. Patrick W. Kenny, a partner at Barry Mc Tiernan and Moore and member of The Board of Directors of the Defense Association of New York also served on the panel. Other committee members included Glenn Kaminska of Ahmuty, Demers and McManus; Tom Liptak of Kenny Shelton Liptak Nowak; James Feretic, of Hannum Feretic Prendergast & Merlino, LLC; Andrew Zajac of McGaw, Alventosa & Zajac; Steven Dyki, Esq., Assistant Vice President of Litigation at Berkshire Hathaway Guard Insurance Companies; James M. Begley, Esq., recently retired Deputy General counsel for The Port Authority of New York and New Jersey; Orla Thompson of Cozen O’Connor; and Patrick Butler of Maroney O’Connor LLP.

The Committee rated the candidates after an extensive screening and interviewing process as follows:

HIGHLY QUALIFIED 

Hon. Anthony Cannataro – Administrative Judge of the Civil Court of the City of New York, and a Justice of the New York State Supreme Court, New York County.

Hon. Erin M. Peradotto, – Associate Justice, Appellate Division Fourth Judicial Department of the Supreme Court of the State of New York

Hon. Troy Karen Webber – Associate Justice, Appellate Division First Judicial Department of the Supreme Court of the State of New York

QUALIFIED

Michael S. Bosworth – Partner Latham & Watkins

Hon. Denise A. Hartman – Acting Justice of the Supreme Court, Albany County

Hon. Judith J. Gische – Associate Justice, Appellate Division First Judicial Department of the Supreme Court of the State of New York

Caitlin J. Halligan – Partner- Selendy & Gay

NJ Appellate Court Vacates $117 Million Talc Verdict Against J&J and Imerys

Johnson & Johnson (“J&J”) and its talc supplier, Imerys, obtained an enormous victory on Wednesday when a New Jersey appeals court reversed a $117 million verdict, arising from allegations that Stephen Lanzo’s mesothelioma resulted from the use of “asbestos-contaminated” baby powder. The appellate court ruled plaintiff’s expert testimony that non-asbestiform minerals could cause mesothelioma was inadmissible, warranting a new trial.

In its 70-page decision, the appellate court concluded that Judge Ana C. Viscomi erred in failing to apply the well-established judicial gatekeeping procedures, recently reinforced by the Supreme Court in In re Accutane Litigation (Accutane), 234 N.J. 340, 388 (2018). Specifically, the appeals court held both expert opinions failed to:

(1) acknowledge the contrary opinions of scientists and government agencies;

(2) provide evidentiary support for their opinion that non-asbestiform minerals can cause mesothelioma; and

(3) produce evidence that their theory that non-asbestiform minerals are harmful had been subject to peer-review and publication or was generally accepted in the scientific community.

J&J has long asserted that plaintiffs’ allegations in talc-based mesothelioma and ovarian cancer claims rely solely on “junk science” to prove causation. The appellate court’s decision is undoubtedly a major loss for plaintiffs as talc litigation continues to increase nationwide. While plaintiff attorneys have strategically been assimilating cosmetic talc claims within the purview of asbestos litigation, causation remains one of the most critical and contested issues. The impact of this decision will require plaintiff attorneys to develop “expert studies” proving a causal connection exists between non-asbestiform minerals and mesothelioma.

Barry McTiernan & Moore LLC Attorneys Recognized As 2021 Super Lawyers and Rising Stars

Barry McTiernan & Moore LLC is excited to announce six of our New York and New Jersey-based attorneys have been named 2021 Super Lawyers or 2021 Rising Stars across a wide range of practice areas.

The following attorneys were selected for Super Lawyers 2021 inclusion:

Suzanne M. Halbardier

Paul McTiernan, Jr.

Claire Rush

Richard Wedinger

Super Lawyers, part of Thompson Reuters is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. No more than five percent of total lawyers in a state are selected for inclusion in Super Lawyers.

The following attorneys were selected for Super Lawyers Rising stars 2021 inclusion:

Patrick W. Kenny

Cara E. Manz

Super Lawyers Rising Stars recognizes the top up-and-coming attorneys in the state who are 40 years old or younger, or who have been practicing for 10 years or less. No more than 2.5 percent of total lawyers are selected for inclusion in the Rising Stars list.

Successful Early Case Dismissal

Associate attorney Ryan Rayder successfully obtained an early dismissal on behalf of a landowner defendant. Plaintiff slipped and fell on a sidewalk and filed suit in Richmond County. However, he repeatedly failed to appear for his 50h hearing and a deposition despite the statutory requirement and numerous court orders requiring the plaintiff to appear. Plaintiff was alleging serious injuries, including a fractured fibula and cervical and lumbar radiculopathy. Rather than letting the plaintiff delay the case, Mr. Rayder aggressively pursued discovery and created a strong record to support the dismissal. It was through perseverance that the Court concluded that the plaintiff’s claim should be dismissed with prejudice.