Associate Ryan Rayder Shares a Touching Tribute To his Veteran Grandfather

Written by Ryan Rayder

Veteran’s day is a day I hold close to my heart. Like many Americans, growing up I heard the stories about America’s greatest generation. I was lucky enough to have one of those great Americans as my grandfather.

Thomas Lawrence McNamara, at the age of 17 followed General Patton on the European Tour during World War II. I can’t imagine the courage, bravery, and focus that my grandfather displayed during an incredibly scary and stressful time.

However, at the same time, it does not surprise me. Growing up my grandfather taught all of his 8 children and all 14 of his grandchildren the importance of standing up for what you believe in, helping others in any way that you can, and the age-old saying “you can do anything you set your mind to”.

I carry all of those same values with me today as an attorney. I miss him terribly and I am so proud to honor his memory this Veteran’s Day and every day. Please enjoy this photograph of my grandfather meeting the Russian Soldiers at Elbe River, signifying the end of World War II. 

Thomas Lawrence McNamara

Suzanne Halbardier to Speak at the Upcoming New York Asbestos Litigation Conference

Our firm is pleased to announce Executive Partner, Suzanne Halbardier will be a speaker at the upcoming Perrin Conferences New York Asbestos Litigation Conference to be held on December 7th, 2022, at the Sheraton New York Times Square Hotel. Ms. Halbardier will speak on the panel titled " Appellate and Summary Judgment Decisions".

Hosted by Perrin Conferences, the leader in joint plaintiff/defense conferences, the event speakers include prominent plaintiff and defense attorneys, in-house counsel, and insurance professionals. It also includes many opportunities for networking. To view the agenda and register please go to: https://www.perrinconferences.com/conferences/new-york-asbestos-litigation-conference-3/

Ms. Halbardier has over 30 years of experience defending manufacturers, retailers, distributors, and suppliers in high-stakes asbestos and talc litigation. Ms. Halbardier has tried many cases to verdict in New York state and federal courts. Ms. Halbardier was recently elected by the defense bar to serve as NYCAL Defense Liaison Counsel where she works closely with NYCAL Coordinating Judge, and Special Master, to coordinate discovery procedures, address ongoing issues on behalf of the defense bar and organize monthly defense meetings. For the last five consecutive years, Ms. Halbardier has been recognized as an elite trial attorney by the New York Times, New York Super Lawyers and New York Top Women Lawyers.

Claire Rush Successfully Obtained a Defense Verdict in a Cyclist Collision Accident Jury Trial

Claire Rush, Senior Trial Attorney and Partner, obtained a defense verdict on November 1, 2022, before the Honorable Lyle Frank in Supreme Court, New York County. This case was commenced by a bicyclist who was struck by a cab. The cab driver had been precluded from testifying because he did not appear for a deposition. Ms. Rush was brought in as trial counsel when the plaintiff's counsel demanded the policy plus. Plaintiff claimed psychiatric problems, multiple injuries in the lumbar spine, to the shoulder, and fractures in several areas of the body. Plaintiff had multiple years of physical therapy and lumbar epidural injections.

Since Ms. Rush didn't have a liability witness she focused on attacking the plaintiff's medical claims. She made a number of motions in limine including one which successfully excluded an expert report served on the eve of trial, which claimed that the plaintiff would require over $1M in future medical treatment. During cross-examination, Ms. Rush demonstrated where the plaintiff initially sought treatment had excluded any fractures in the ankle and hand. She then established that these records showed that plaintiff never complained of back, shoulder, wrist, or psychiatric problems in the hospital. Further demonstrated the records showed that the plaintiff had previously sought treatment at a pain management clinic for low back pain. Finally, Ms. Rush demonstrated that plaintiff had falsely claimed he had discontinued treatment with the no-fault medical clinic because of Covid. Having undermined the plaintiff’s credibility on his damages claim Ms. Rush was able to successfully argue in summation that the plaintiff had failed to make out a prima facie case on the issue of negligence.

The jury accepted this argument and returned a verdict finding no negligence on the part of the defendant. Ms. Rush extends her sincere gratitude to the client and BMM trial prep team for the outstanding work they did to help obtain this verdict.

Moya M. O’Connor Obtains a Defense Verdict on Behalf of the New York City Transit Authority

Moya O’Connor obtained a defense verdict on behalf of the New York City Transit Authority in Supreme Court, Kings County. The plaintiff alleged that the transit bus operator negligently operated the bus by having a sideswipe impact with a hit and run driver, and as a result, sustained a lower back injury that required a microdiscectomy, left knee contusion, and bulges and herniations at various levels of the neck and back. Ms. O’Connor proved that the bus was parked and never moved but was instead rear-ended by the fleeing vehicle which was not a party to the action. The plaintiff's demand was $3 million, and he declined a pretrial offer of $55,000.

Senior Trial Attorney, Claire Rush Obtains a Directed Verdict in Supreme Court, Kings County

Senior Trial Attorney and Partner, Claire Rush obtained a directed verdict in Supreme Court, Kings County after almost two weeks of jury selection and trial.

The case involved a middle-aged woman who slipped and fell on a grassy area abutting a well-lit covered emergency parking area, after a rainstorm. The accident was captured by a surveillance camera. Prior counsel had moved for summary judgment and the Court had noted that a landowner is not required to protect against an open and obvious condition that is inherent or incidental to the nature of the property. The court found that the plaintiff should have anticipated the ground to be slippery because of the rain. The Court, however, denied the defendant’s motion for summary judgment finding that a material issue of fact existed with respect to the adequacy of the lighting. Ms. Rush made a motion in limine to limit the scope of the trial to the adequacy of the lighting, under the theory of "law of the case". The trial court granted the motion and the trial proceeded. Ms. Rush moved for a directed verdict at the close of the plaintiff’s case and after resting. Ms. Rush argued that a landowner does not have a generalized duty to illuminate all areas of its property at night and that given the fact that the surveillance video demonstrated, and the defendant’s employees testified, that the area was well lit, the plaintiff needed expert testimony to establish that the lighting was somehow inadequate. The Court reserved the decision and instructed return for Summation the following week. Upon returning the Court announced that it was rendering a decision on the motion for a directed verdict. The Court noted that the plaintiff had failed to introduce proof that the lighting was inadequate, and that any verdict would be based upon pure speculation. The Court accordingly dismissed the plaintiff’s action.

Multi-lawsuit Dismissal of Claims Against Construction Manager Client

BMM client, a major Construction Manager, was improperly named as a defendant under the Labor Law in two separate lawsuits filed in the Supreme Courts of Queens County and Kings County. After several weeks of negotiating a discontinuance with plaintiffs’ counsels, BMM filed motions for summary judgment before any discovery had been exchanged in an effort to save time and money. Mr. Joyce and Mr. Kaushik worked with the client to prepare affidavits to support our motions and, upon receipt of our motions, the plaintiff and co-defendants in both cases agreed to dismiss their claims and cross-claims.

In this case, taking an early and aggressive approach resulted in the files being closed in a matter of months rather than incurring the costs and time of protracted litigation.

Associate Ryan Rayder Achieved Victory For BMM Client

Associate Ryan Rayder achieved another victory for a BMM client after being granted summary judgment and the codefendant settled the claim without contribution by our client. The lawsuit involved a slip/trip-and-fall accident resulting in a claim of fracture and an altered level of enjoyment of life by the plaintiff. Our firm represented the adjacent ground-floor tenant, impleaded by a landlord/owner looking to transfer liability. Although there was a defect in the sidewalk, there were also medical records reflecting that the plaintiff’s fall took place due to the presence of snow/ice, and testimony from the plaintiff that there “may have been” some moisture there as it had snowed earlier that day.

Ryan prepared a motion for summary judgment, focused upon the landlord’s duty to repair structural defects and the lack of responsibility of the tenant who had never performed any exterior work on that sidewalk, and contested any obligation to indemnify the owner under the terms of the lease.

Partner John V. Wynne, Obtains Favorable Results on Behalf of BMM client, MTA Bus Company, in Two Contested High-Value Cases

The first lawsuit involved a 50-year-old male passenger, who was sitting on the bus when a concrete boom from an adjacent construction site struck the bus at a red light, resulting in a number of injuries to the plaintiff, including lumbar fusion surgery and ankle and knee arthroscopic surgery. The plaintiff alleged the bus operator was negligent in failing to prevent the accident and that he operated the bus in an unsafe manner. Although pressed to participate in early mediation, Mr. Wynne advised the other parties that we would be filing a motion for summary judgment and not contributing to a settlement. Plaintiff's counsel mediated with the codefendant, and the entire case was settled without any contribution from our client.

In the second case, Mr. Wynne secured a dismissal of all claims against the firm’s client MTA Bus Company. In this case, the 39-year-old plaintiff alleged traumatic brain injury caused by a vehicle collision. The plaintiff claimed that the bus operator drove the wrong way down a one-way street and hit a furniture delivery truck as it was backing up after going through a red light. As a result of the impact, the plaintiff was violently thrown from her seat into the interior surfaces of the bus, suffering multiple cognitive injuries. Video footage showed that the plaintiff was confirmed to be on the bus, although Mr. Wynne argued the bus had been stopped at a red light when the codefendant's truck backed into it. Furthermore, the plaintiff was confronted with evidence from her pre-accident medical records during her deposition, which undermined her claims concerning a causal connection. Ultimately, the case was settled in full by the codefendant, with no contribution from the firm's client, MTA Bus Company.

By developing these strategies with the client and strongly communicating our position to the other parties, Barry McTiernan & Moore obtained successful and early dismissal of the claims.

Defense Association of New York (DANY) Names Claire Rush as President

Senior Trial Attorney and Partner Claire Rush was elected to serve as President of the Defense Association of New York (DANY) effective July 18, 2022. Prior to her becoming President, Ms. Rush established DANY's award-winning pipeline diversity program to empower economically challenged and diverse college students. The program has been extremely successful in not only offering participants a pathway to law school admissions, but also in placing them with internships offered by various members of the bench and DANY member firms. This program has won state-wide awards from The New York Law Journal for the most outstanding diversity program in an organization, and also received national recognition, receiving the Diversity Resources Institute (DRI) award for the most outstanding diversity efforts by a state-recognized organization.

Most recently, Ms. Rush was instrumental in the development of DANY's first intensive trial advocacy course, which included lectures from well-respected attorneys on all aspects of a trial, such as opening statements, witness examinations, and closing statements. Additionally, mock trials were conducted over the course of two weekends. The course was well attended and has been recognized as a fundamental program for training a new generation of junior defense attorneys to become trial advocates.

Ms. Rush specializes in the defense of high-exposure personal injury actions. She has received a Preeminent AV rating of 5.0 / 5.0 from Martindale- Hubbell and has been identified as one of the top personal injury defense attorneys in the Metro New York area by Super Lawyer Magazine and American Legal Media. Ms. Rush has been recognized by the Bar Register of Preeminent Women Lawyers, the New York Times, and AVENUE Magazine as one of New York City’s top women lawyers in the area of trial practice. She regularly lectures and writes articles about important substantive and procedural issues that impact the defense of personal injury litigation.

Ms. Rush has been published in DANY’s publication, the Defendant, and is a frequent lecturer of DANY. She also chairs the DANY Judicial Sub-Committee which screens candidates for judicial positions. For the first time, due to these founding efforts, DANY has interviewed potential Court of Appeals candidates as well as local judicial candidates, which earned DANY the opportunity to submit formal recommendations.

As DANY President, Ms. Rush plans to continue the commitment to creating opportunities for women attorneys and developing trial skills for junior attorneys.

Perrin Conferences Sexual Abuse Litigation and Coverage Conference features Suzanne Halbardier as a Speaker

Our firm is pleased to announce Suzanne Halbardier will be a speaker at the upcoming Perrin Conferences Sexual Abuse Litigation and Coverage Conference to be held on October 12, 2022, at the Sheraton New York Times Square Hotel. Hosted by Perrin Conferences, the leader in joint plaintiff/defense conferences, the event will include many opportunities for networking and will feature prominent plaintiff and defense attorneys, in-house counsel, and insurance professionals.

Ms. Halbardier will speak on a panel titled "Trends in Sexual Abuse Litigation and the Status of the Litigation". The session will cover New York Adult Survivors Act and Child Victim’s Act, Southern Baptist Church sexual abuse lawsuits, and Update on California sexual abuse cases.

Suzanne Halbardier serves as Barry McTiernan & Moore's Executive Partner. Ms. Halbardier has over 30 years’ experience defending manufacturers, retailers, distributors and suppliers in high stakes asbestos and talc litigation. She also handles sexual harassment, abuse, and molestation cases in foster care, school and security settings. Ms. Halbardier has tried many cases to verdict in New York state and federal courts. Ms. Halbardier was recently elected by the defense bar to serve as NYCAL Defense Liaison Counsel where she works closely with NYCAL Coordinating Judge, and Special Master, to coordinate discovery procedures, address ongoing issues on behalf of the defense bar and organize monthly defense meetings. For the last five consecutive years, Ms. Halbardier has been recognized as an elite trial attorney by the New York Times, New York Super Lawyers and New York Top Women Lawyers.

To view the agenda, register and book your hotel room please go to: https://www.perrinconferences.com/conferences/sexual-abuse-litigation-and-coverage-conference-3/

Ashley Johnston will be a Panelist at the National Asbestos Litigation Conference

Our firm is pleased to announce Ashley Johnston will be a panelist at the National Asbestos Litigation Conference, taking place on September 14-15 at the Charleston Place Hotel in Charleston, South Carolina. Hosted by Perrin Conferences, the leader in joint plaintiff/defense conferences, the event will include many opportunities for networking and will feature prominent plaintiff and defense attorneys, in-house counsel, and insurance professionals.

Ms. Johnston will be presenting on the topic: The Future of Talc Litigation. This session will focus on Techniques for Testing and Causation and Major Appellate Rulings in 2022 and the Impact Going Forward.

Ashley Johnston is an associate in the firm’s product liability and mass toxic tort department. Ashley actively defends product manufacturers, distributors, suppliers, and their insurers in cases involving high-risk exposures to asbestos and talc. Ms. Johnston is the co-author of Asbestos Gets A Makeover published in the April 2022 edition of CLM Magazine.

To view the agenda and register please go to: https://www.perrinconferences.com/conferences/national-asbestos-litigation-conference-3/

Partner John Wynne Achieves Summary Judgment and Dismissal on Behalf of Firm’s Client, MTA Bus Company

Partner John Wynne obtained summary judgment and dismissal of all claims in favor of the firm’s client, MTA Bus Company. The plaintiff alleged that she was a passenger on a bus which lurched forward and collided with another vehicle, resulting in back injuries that resulted in a spinal fusion. In this case, Mr. Wynne presented the testimony of the bus operator along with a video recording taken from the bus which demonstrated that the plaintiff and co-defendant vehicles’ claims that the bus abruptly entered traffic were false. The co-defendant, a motorist, told responding police that she swerved to avoid hitting the bus. Under cross-examination by Mr. Wynne, the co-defendant recanted her prior testimony and admitted to swerving to avoid another vehicle to her left while the client's bus was stationary. All claims against the MTA were dismissed as a result of the evidence and arguments presented by Mr. Wynne.

This is yet another successful result from Barry McTiernan & Moore, whose attorneys have a wide range of experience in high-profile and difficult liability cases.

Partner John V. Wynne Successfully Obtains Dismissal on behalf of Firm’s NYC Transportation Client

Barry McTiernan & Moore successfully obtained a dismissal of a lawsuit, where plaintiff’s counsel incorrectly pleaded the date of loss in the notice of claim and complaint against the firm’s client, MTA Bus Company. In this otherwise unreported accident, plaintiff’s counsel sought leave of the court to amend the pleadings to assert the correct date of loss more than two years after filing the initial complaint, and after most of the discovery had been completed. In opposition, BMM argued that when reviewing the data from the plaintiff's MetroCard, there was no proof of presence on the bus, and therefore the ability to conduct a meaningful investigation was denied to the client. Plaintiff's attempt to correct the pleadings more than two years later severely prejudiced the client's ability to investigate the claim within a reasonable period of time after the date of loss as required by Public Authorities Law. Following the court’s denial of plaintiff’s motion, Partner John V. Wynne then moved for dismissal of the complaint, which was granted in our client’s favor.

Barry McTiernan & Moore Obtains Pre–Discovery Dismissal, Twice

Managing Partner Alex Malino of Barry McTiernan & Moore represented a staffing company that was first sued in an action where the plaintiff claimed severe injuries to the back, hands, shoulders, and spine. Plaintiff asserted claims under New York Labor Law against the owner and general contractor, then the owner sued our client based on contractual and common law indemnity claims.

Initially brought in as a third-party defendant, BMM was able to effectively convince the third-party plaintiff that our client had no contractual privity, owed no contractual indemnity, and could not be sued as we were the plaintiff's employer in accordance with Section 11 of the Workers Compensation Law. As a result, pre-discovery, the third-party plaintiff agreed to discontinue with prejudice.

Nearly a year later, BMM’s client was brought in as a fifth party defendant when the party we were contracted with claimed we owed them contractual indemnification. In the fifth third-party lawsuit, the plaintiffs were operating under the wrong contract. Discovery was provided to the 5th party plaintiff in advance of serving an answer and we succeeded in persuading them that our proofs were accurate and true. Thus, BMM received the second stipulation of discontinuance on the case, the client remained dismissed with zero indemnity and a nominal legal spend.

The case illustrates how collaboration with the insured and the insurance company can lead to quick, pre-discovery, resulting in cost efficiency for all parties. Due to the fact that BMM was able to present the necessary evidence to counsel early and efficiently to get out of the case twice before further discovery was required, no indemnity was spent, and the legal spend was significantly below budget.

Barry McTiernan & Moore’s metric-based approach to litigation differentiates from other firms that churn through files. Our team is always seeking opportunities for a loss transfer or an opening out of a case pre-discovery and pre-legal spend. By following this strategy, Barry McTiernan & Moore’s clients and insurance partners are very pleased, with their loss runs remaining low. The firm’s commitment to providing strategic and efficient legal representation benefits all parties involved.

New York Legislation Grants a Temporary Lift on the Statute of Limitations for Abuse Victims

Barry McTiernan & Moore Associate Attorney Samantha Perlowitz attended the Perrin Conferences’ virtual Sexual Abuse Litigation and Coverage Conference held on May 18, 2022. This conference provides a platform for thought leaders in sexual abuse litigation and coverage to advance the discourse on these important subjects. It also serves as an opportunity for defense and plaintiff attorneys, in-house counsel, and insurance professionals to network and share knowledge. This conference consisted of five separate sections covering topics such as Trends in Sexual Abuse Litigation, Status of the Litigation, Damages in Sexual Misconduct Cases, Early Litigation Investigation and Settlement, Status of Bankruptcies in Sexual Abuse Cases, and Insurance Coverage Issues.

In 2019, New York Legislature passed the Child Victims Act, which created a one-year lookback window for survivors of childhood sexual abuse to file claims otherwise time-barred by the statute of limitations. When the Child Victims Act window closed in August 2021 (deadline extended due to COVID), over 10K cases had been filed. New York Senate sponsors of the Child Victims Act also sponsored the Adult Survivors Act, Senate Bill S66A, which was signed into law on May 24, 2022. This law creates a one-year lookback window for survivors of sexual assault that occurred when the individuals were over age 18 to bring a claim against their abusers regardless of when the abuse occurred. Claims under the Adult Survivors Act can only be revived within a one-year window which commences six months from the effective date of the act. Civil actions brought during the one-year window that was previously dismissed due to being time-barred or for failure to file a notice of a claim shall not be dismissed on these grounds.

Barry McTiernan & Moore represents educational, municipal, and religious organizations being sued under the Child Victims Act. BMM continues to be at the forefront of this evolving area of law, developing leaders in the defense against such claims. Our CVA team is led by Executive Partner Suzanne Halbardier, who has over 30 years of experience defending high-profile claims of sexual molestation and abuse. Based on the nature of the claims, the firm has developed tailored defense strategies and constantly partners with our clients to achieve the best results.

Partner Patrick W. Kenny Successfully Obtained a Spoliation Order in a High Exposure Labor Law Case

Partner Patrick W. Kenny successfully obtained a spoliation order in a high exposure Labor Law 240(1) matter where the plaintiff intentionally deleted his Facebook account after the defendant's requests both during discovery and at the plaintiff’s deposition that the social media materials be preserved. Brazenly, after exchanging only select Facebook Messenger exchanges, the plaintiff affirmatively moved for a protective order to prevent any further disclosure of his social media accounts. Mr. Kenny opposed and the Court ordered the plaintiff to produce the social media authorizations. However, the plaintiff had already deleted his Facebook account.

The Court ruled that plaintiff’s intentional deletion of his Facebook account, which included statements of co-workers regarding the accident and photos of the plaintiff at the gym after the accident, plaintiff was precluded from testifying at trial as to anything related to social media along with an adverse inference instruction at trial due to the destruction of the evidence.

This is an important decision because it shows that plaintiffs cannot play games with discovery rules surrounding social media and that BMM’s attorneys stand ready to move for sanctions against plaintiffs that do.

BMM Clients Received an Excellent Fast Result

Partner William Joyce and Associate Shorav Kaushik achieved a favorable outcome in a labor law case on behalf of our clients, a general contractor and the owner of a construction site. The insurer for the plaintiff's employer indemnified our clients for their attorneys' fees as well as funded a global settlement for our clients.

In this matter, the plaintiff fell from a height alleging that he was denied a scaffold to work from. The carrier for the plaintiff’s employer initially refused to fully accept our tender of defense on the basis that outstanding discovery might reveal the negligence of our clients. After the plaintiff’s deposition and aggressive posturing on our clients’ behalf, the plaintiff’s employer settled directly with the plaintiff resulting in a full resolution without any contribution from our clients or costs incurred on their behalf. In this case, BMM's clients received an excellent and fast result.

Summary judgement secured on behalf of firm client Lincoln Center for the Performing Arts

Managing Partner Alex Malino obtained a dismissal of a claim where plaintiff had failed to include the lawsuit in his bankruptcy filing. Alex represented Lincoln Center for the Performing Arts in a Labor Law case where the plaintiff sustained severe injuries. During the course of discovery, a background investigation found the plaintiff had previously filed Bankruptcy in the U.S. District Court for the District of New Jersey. As a result of this information, Mr. Malino obtained the bankruptcy docket and determined that the claim he was defending had not been reported during the bankruptcy proceedings.

Mr. Malino promptly moved for leave to serve an amended answer incorporating the affirmative defenses of lack of standing, lack of capacity to sue as well as judicial estoppel for the plaintiff failing to report this claim during the pendency of his bankruptcy. The plaintiff's bankruptcy was closed before the suit was filed some 14 days later.

Once it was known that the underlying general liability case was not reported to the bankruptcy court, there was no need to conduct all the discovery, saving our client and our carrier tens of thousands of dollars in legal and medical fees while dismissing the case. A thorough investigation, such as bankruptcies sweeps, is very important when handling these claims.

Barry McTiernan & Moore focuses close attention on key performance indicators such as the life cycle process, aggressive defense, and moving prior to discovery whenever possible.

Andrew Moschella to speak at The Association of Legal Administrators (ALA) 2022 Conference

Andrew Moschella, Controller of the firm, will take part in the Association of Legal Administrators (ALA) 2022 conference. BMM actively encourages leadership and continuous education for all employees, Andrew will present a course on Financial Management guiding attendees through the world of Financial Statements and Financial Reporting.

The Association of Legal Administrators (ALA) is the premier professional association dedicated to law firm leadership. The ALA provides professional development, peer communities, and operational solutions for law firm leaders. Those who want to demonstrate that they have mastered the knowledge, skills, and abilities to operate at a high level of expertise can achieve this by becoming a Certified Legal Manager (CLM).

The Conference will be in Kissimmee, Florida from May 15-18.

BMM’s Ashley Johnston Co-Authored Article Published In CLM Magazine – “Asbestos Gets a Makeover”

Ashley Johnston co-authored an article recently published in the April 2022 edition of CLM magazine. The article, titled "Asbestos Gets a Makeover", discusses why cosmetic talc litigation is paving a more dangerous path than traditional asbestos litigation.

Ms. Johnston is an associate in the firm’s product liability and mass toxic tort department. Ashley actively defends product manufacturers, distributors, suppliers, and their insurers in cases involving high-risk exposures to asbestos and talc.

Read the Full Article:  CLM Magazine April 2022