Partner Claire Rush Successfully Obtains Defense Verdict in a Jury Trial

Partner Claire Rush recently tried a case in Supreme Court Queens County where the jury deliberated for ten minutes before returning a verdict in favor of our client. Ms. Rush represented a major New York City entertainment venue. Plaintiff claimed that he slipped and fell on water and sustained a herniated cervical disc and torn left rotator cuff when he visited the premises. Ms. Rush utilized a series of demonstrative aids to show that plaintiff’s testimony about the amount and size of the alleged puddle was unbelievable as a matter of law. She additionally argued that even if the jury found that the plaintiff fell on water, the venue’s robust cleaning and inspection schedule mitigated against plaintiff’s claim of constructive notice. The jury quickly agreed with the defense arguments and returned a verdict in favor of Ms. Rush’s client. Where a case cannot be settled pretrial, BMM has tremendous trial attorneys such as Ms. Rush to present compelling arguments and obtain the best results for our clients.

BMM Attorneys Have Been Named to the 2022 Super Lawyers and Rising Stars Lists

BMM is pleased to announce that six of our New York and New Jersey-based attorneys have been named 2022 super lawyers and 2022 rising stars for their excellence in a range of practice areas. Only 5% of attorneys in New York receive this distinction, reserved for those who have attained a high-degree of peer recognition and professional achievement.

The following attorneys are listed for Super Lawyers 2022:

Suzanne M. Halbardier

Alex Malino

Paul McTiernan, Jr.

Claire Rush

Richard Wedinger

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.

The following attorneys are selected for Super Lawyers Rising stars 2022:

Patrick W. Kenny

Partner Lynda Liebhauser Achieves Early Settlement in High Exposure Case

Partner Lynda Liebhauser obtained an early and favorable settlement for the firm’s construction client in a Labor Law case. The plaintiff claimed that he stepped into a gap between scaffold platforms while performing painting work, sustaining multiple injuries including significant economic losses. A third-party action was commenced against the firm’s construction client, the plaintiff’s employer. The owner and general contractor also commenced a declaratory judgment against the employer and other trades on the job site.

After conducting a limited deposition of the plaintiff on liability issues, the parties engaged in early settlement discussions. The case was settled on favorable terms to our client and included a dismissal of the declaratory judgment along with a waiver of all costs associated with the coverage claims.

Achieving advantageous and early resolution is another example of the firm’s proactive approach. Life Cycle is an integral key performance indicator at Barry, McTiernan & Moore with attorneys like Ms. Liebhauser continuing to lead the way in facilitating early resolutions.

Managing Partner, Alex Malino will be presenting at the 2022 CLM Alliance Annual Conference

Barry McTiernan & Moore’s Managing Partner, Alex Malino will be presenting at the CLM Alliance Annual Conference on the session titled “The Early Bird.....Avoids Excessively High Settlements, Nuclear Verdicts, and Extra-contractual Claims!” The CLM conference will take place from March 23rd to March 25th., 2022 in Palm Desert, CA.

Session Description – “The Early Bird...Avoids Excessively High Settlements, Nuclear Verdicts, and Extra-Contractual Claims”

Most substantial exposures can often be mitigated at various stages throughout the claims process with aggressive, flexible handling. Learn the importance of effective claims handling right out of the gate. Presenters will share techniques to avoid a failure to discover material information while forecasting the multiple directions a claim can proceed. Recognize factors that could potentially turn what appeared to be a moderate exposure into something far more serious. These techniques will also assist in those cases where the claim turns into a significant one. This diverse panel will address different kinds of alternative dispute resolution and other strategies to create workable solutions to mitigate exposure.

Barry McTiernan & Moore appoints Lynda Liebhauser as New Jersey Managing Partner

Barry McTiernan & Moore is pleased to announce that Lynda Liebhauser has been appointed Managing Partner of the firm’s New Jersey office.

Lynda joined BMM as a partner in 2021, bringing over 20 years of litigation experience to the team. Her practice areas include premises liability, construction defect litigation, automobile liability, uninsured/underinsured motorist coverage, labor law, and professional liability. Numerous favorable outcomes have been achieved for her clients through her adept handling of cases through trials in various state and federal courts.

Lynda brings years of management experience to the position. As part of her new role, Lynda will be responsible for further integrating the New Jersey office into the BMM network. She will focus on client growth and development, technology improvements, as well as maximizing profitability for the firm. The appointment of Lynda Liebhauser affirms BMM’s commitment to clients, continued growth, and deepening the firm’s reach across the tri-state area.

Please send congratulations to Lynda!

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.