News and Events

Suit Against NYS Dismissed After Trial In Court Of Claims

December 2011

BPS Litigation Partner Vincent Crowe prevailed after trial in an action alleging that excessive force was utilized during the course of claimant’s arrest at Empire City Casino.  Claimant asserted assault and battery against a New York State police investigator arising out of an incident of September 12, 2007, where he was arrested and charged with menacing, resisting arrest and disorderly conduct.

The Court analyzed plaintiff’s claim under the standard of objective reasonableness deriving from the Fourth Amendment to the United States Constitution protection against unreasonable seizures of the person.  Mr. Crowe introduced expert testimony that the State Police Investigator acted in accordance with proper police practice and procedure in arresting claimant, and in the amount of force used in making the arrest.

Court of Claims Judge Stephen Mignano concluded that claimant’s testimony that the plainclothes officer did not identify himself as a police officer prior to his use of force became “murky” upon cross examination.  The Judge also noted that claimant’s testimony was evasive, and the probative value of claimant’s testimony was minimized by his demeanor on the stand, and his announcement, while being cross examined that “he had answered enough questions.”  The Court adopted Bleakley Platt & Schmidt’s arguments and dismissed the case.

[Link to case.]

BPS Client ECCYR Granted Summary Judgment In Three Lawsuits

December 2011

Bleakley Platt Client, Empire City Casino at Yonkers Raceway, was recently granted summary judgment in the following three lawsuits:

1. In Panariello v. Yonkers Racing Corp., Supreme Court, Nassau County, Bleakley Platt & Schmidt, LLP, obtained dismissal on summary judgment for a claim arising when plaintiff claimed that she was caused to trip and fall on a ramp at the Casino premises. BPS Litigation Partner Vincent Crowe, appearing for Empire City Casino, argued that the ramp and the carpeting covering it were not inherently dangerous and was readily observable by the reasonable use of one’s senses. The trial Court adopted Bleakley Platt & Schmidt’s argument and dismissed the case in its entirety. [Link to case.]
   
   
2. In Caivano v. Empire City Casino at Yonkers Raceway, Supreme Court, Rockland County, summary judgment was granted where plaintiff was unable to offer proof that defendant had actual or constructive notice of the alleged dangerous condition. The Court noted that for purposes of establishing liability for a slip and fall claim, general awareness that a dangerous condition may be present is legally insufficient to constitute notice of a particular condition that caused plaintiff’s fall. [Link to case.]
   
   
3. In Paul Gallo v. Yonkers Racing Corp., Supreme Court, Westchester County, plaintiff alleged that he was injured when he stepped into a hole as he dismounted from a truck while delivering propane on defendant’s property. The Court agreed with the argument of Vincent Crowe that the ground upon which plaintiff fell did not constitute a dangerous condition, and granted summary judgment dismissing all claims. [Link to case.]
   
   

Labor Law 200, 241(1) and 241(6) Claims Dismissed Against BPS Client

November 2011

On November 10, 2011, New York Supreme Court Justice Thomas Adams, granted Defendant Fratello Construction Corp.'s CPLR 3212 motion for summary judgment and dismissed plaintiffs' Labor Law and negligence claims in Giovanniello v. Fratello Construction Corp., et al., Index No. 26676/2009. The plaintiffs filed suit after plaintiff Giuseppe Giovanniello, an employee of Liro Architects & Planners, PC, a non-party construction manager for a public improvement project located at the Bernard Fineson Developmental Center in Queens, was instructed to inspect an exposed foundation wall of the Administration Building under construction. Fratello was the prime contractor pursuant to its agreement with the State Dormitory Authority. Mr. Giovanniello, along with two assistants, was on the interior of the wall and inspecting it for straightness and plumbness prior to the commencement of framing. He had approached an unspecified construction trailer at the site and observed ladders along the side of a trailer. He then spoke to an unidentified individual who stated "help yourself." After checking the ladder to ensure that they were structurally stable and finding them "sound", Mr. Giovanniello began taking measurements along a fifteen foot high wall. He relocated the ladder on each occasion without incident until the ladder broke and buckled. He jumped to the ground and was unsure which part of the unidentified ladder broke.

Thereafter, the plaintiffs filed a personal injury action alleging causes of action for negligence, violation of Labor Law sections 200, 240(1) and 241(6) as well as derivative claim on behalf of the plaintiff Anastasia Giovanniello. A representative from Fratello testified that Fratello was "off the job" on the date of the Mr. Giovanniello's incident since its work was substantially complete. Moreover, the representative testified that Fratello lacked authority to supervise, direct or control Mr. Giovanniello's work since he was Liro's employee. Judge Adams found that Fratello established a prima facie entitlement to summary judgment dismissing the complaint against it, citing the fact that plaintiffs failed to produce any evidence that Fratello had authority to supervise, direct or control Mr. Giovanniello's work or was affirmatively negligent by supplying a defective ladder. BPS Partner Michael P. Benenati successfully represented Fratello Construction Corp. in this case.

BPS Partner, Bill Harrington, to Chair WCA Healthcare Reform Symposium 2011

September 2011

William P. Harrington, who is the Chair of the WCA Blue Ribbon Task Force on Healthcare Reform, will chair and moderate an all-day symposium on Healthcare Reform on September 22, 2011 from 8:00 a.m. to 6:30 p.m. at the Westchester Marriot, Tarrytown, New York. As part of this Symposium, the nation’s leading authorities will diagnose the vexing problems in healthcare, expose the true cost drivers, and identify solutions and policy recommendations. The Symposium’s session topics will include: Understanding the real cost drivers of healthcare; New models of healthcare delivery; How business can take control of healthcare costs; What insurance will look like in the future; and Advocacy and legislative next steps. Bill’s comments on the Symposium’s subject of Healthcare Reform and its anticipated impact on businesses in Westchester County can be heard at the following linked video: click here

Medical Malpractice Claims Dismissed Against BPS Client

August 2011

On June 9, 2011, N.Y. Supreme Court Justice, Mary H. Smith, granted Defendant LifeNet, Inc.’s CPLR 3211 motion to dismiss Plaintiff’s medical malpractice claims in Kumar v. Westchester Cty. Health Care Corp., et al., Index No. 2010/30914. In a prior special proceeding wherein Plaintiff successfully sought an Order granting him permission to serve a late notice of claim against the Westchester Medical Center defendants, Plaintiff represented to the Court that the Westchester Medical Center defendants were responsible for Plaintiff’s injury by definitively arguing that the injury was not present when Plaintiff had arrived at the Westchester Medical Center. Notwithstanding this earlier claim, Plaintiff subsequently alleged that LifeNet had caused Plaintiff’s injury prior to Plaintiff’s arrival at the Westchester Medical Center. In dismissing Plaintiff’s claims against LifeNet upon the grounds of judicial estoppel, the Court held that Plaintiff was “playing fast and loose with the Courts” and that Plaintiff “simply cannot have it both ways.” BPS Partner John Diaconis and BPS Associate Justin Gardner successfully represented LifeNet, Inc. in this case.

Bleakley Platt Welcomes Leo Zucker, Esq. to the Firm

July 2011

Bleakley Platt is pleased to announce that Leo Zucker has become Of Counsel to the Firm. Leo has more than 25 years’ experience in the area of patent and trademark law, and is a member of the New York State Bar. His practice includes the preparation and prosecution of patent applications in the U.S. and abroad in the fields of electronics, communications, optical systems, medical devices and tools. He also conducts trademark searches and renders opinions with respect to the registration of various classes of trademarks and service marks. Leo is licensed to practice before the United States Patent and Trademark Office and in federal court. He received his J.D. degree from St. John’s University School of Law, and his M.S.E.E. degree from the New York University Graduate School of Engineering.

BPS Clients Granted Summary Judgment in ADEA Case

January 2011

On January 14, 2011, U.S. District Judge, Kenneth M. Karas, granted Defendants’ FRCP Rule 56 summary judgment motion dismissing Plaintiff’s claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., in Nicholls v. Philips Semiconductor Manufacturing, et al., Case No. 07-CV-6789 (KMK)(GAY) (S.D.N.Y. Jan. 14, 2011), in a case dealing with the issues of “constructive discharge” and the viability of an age discrimination claim based on a “small” statistical sampling of the Defendants’ workforce.

Plaintiff, who was a 59 year old Sr. Engineer with Philips Semiconductors in Fishkill, New York, at the time of the alleged discrimination, claimed that he had “suffered constructive discharge at the hands of Defendants” because of his age and therefore stated a prima facie age discrimination claim. To support his claim, Plaintiff argued that the Defendants had “engaged in a systematic course of action wherein they gave him unfairly negative performance evaluations, changed his job responsibilities, ranked him as a bottom performer, then imposed unreasonable deadlines upon him,” and that his resignation pursuant to the terms of a Voluntary Reduction in Force (VRIF) was his “only option” to avoid an involuntary employment termination. He also argued that certain statistical data demonstrated that age bias had played a role in the Defendants’ employee rankings resulting in more older workers being classified as bottom performers who were then read VRIF scripts encouraging them to voluntarily resign.

In dismissing the Plaintiff’s claims, the Court held that Plaintiff’s dissatisfaction with his work deadlines and other aspects of his job did not demonstrate that “he had essentially no choice but to resign” from his employment, thereby failing to establish that he had suffered an “adverse employment action,” an essential element of a prima facie age discrimination case. The Court further found that the statistical data offered in support of Plaintiff’s discrimination claim was “fundamentally flawed” for various reasons noting that such data cannot by itself establish an ADEA disparate treatment claim. The Court also stated that the Plaintiff’s statistical data was “misleading” as the sample size was “too small to draw any definitive statistical conclusions about age differentials,” and that Plaintiff, who had not utilized an expert witness to support this analysis, had omitted “a number of important details.” The Court therefore held that Plaintiff had failed to demonstrate that age discrimination was the “but for” cause of his VRIF resignation and the Defendants’ alleged discriminatory actions against him.

BPS Partners, Joe DeGiuseppe and Michael Benenati, represented the Defendants in this case. The summary judgment motion was successfully argued by Joe DeGiuseppe.