Law Offices of Curtis, Vasile, Mehary & Dorry P.C.
FIRM Cases of Interest
DISCLAIMER: To the extent that this website may discuss law or legal cases, this is being provided for informational purposes only and is not intended to constitute legal advice or create an attorney-client relationship.                        


MUNICIPAL LIABILITY: TOWN'S FAILURE TO REPAINT CENTER LINES

 

 

            In October 2000, the Town had a section of road repaved, but, for about a year and a half, it did not repaint the double yellow lines down the center of the road.  Prior to repainting the lines, there was a wedding reception at a local catering hall and one of the attendees became quite intoxicated.

 

            Despite assurances that the parking attendants would not give him the drunk his keys, and his girlfriend would drive home, the drunk ended up behind the wheel. He crossed over on the road that had been repaved without double yellow lines, and collided with an oncoming vehicle, killing himself, his girlfriend, and causing serious injuries to the occupants of the oncoming vehicle. 

 

            An action was commenced against the Town, the catering hall, the drunk driver, and the groups that were conducting the valet parking at the catering hall. 

 

            Various motions for summary judgment were made, and all were denied except our motion on behalf of Town.  In addition to arguing that the Town’s conduct was not the proximate cause of the accident, the Court accepted our argument that the Town did not have written notice of the purported defective condition in the roadway, and the failure to paint lines was merely nonfeasance, not malfeasance. The dismissal motion in favor of the Town of Brookhaven was granted after about a decade of litigation (Machado/Duffy v. Kalb).


TRAUMATIC BRAIN INJURY-SUM ARBITRATION-DEFENDANT'S VERDICT


    Three claimants were struck in the rear while stopped at a light and settled for the full amount of the tortfeasor's insurance policy ($50,000). They proceeded to SUM Arbitration, demanding $1.5 million to settle the claim. The claimants involved a mother and two children.  One child suffered minor injuries and the Arbitrator held that he was adequately compensated.  The other child was out of school for six months because of fibromyalgia and the Arbitrator awarded $55,000 (less a $15,000 set off from the underlying accident).

 

    The mother claimed a traumatic brain injury with treatment from various doctors including over 200 visits for cognitive therapy by her neuropsychologist (who testified on her behalf). Her claims included an inability to work as a bookkeeper for her husband's construction business, inability to balance checkbooks, forgetfulness, burning things on the stove, getting lost while driving, etc. Michael G. Mehary obtained the services of a behavioral neurologist and the defense disputed plaintiff's traumatic brain injury and pointed out how she had pre-existing issues concerning anxiety and depression.  The defense unearthed some prior psychological records which supported this position.  Arbitrator Vernon Welsh found that the claimant failed to causally relate her cognitive difficulties to the car accident and she had been adequately compensated by the underlying personal injury settlement ($20,000).


                                  CIVIL RIGHTS - INTELLECTUAL PROPERTY: WOODY ALLEN 

        The firm was the attorneys of record for the defendant, American Apparel, in a misappropriation lawsuit filed in the Federal District Court by Woody Allen. The case was handled by Dominick A. Piccininni, Jr. Our client was sued under the Federal Landham Act and New York Civil Rights Law based on the allegations that American Apparel took various images from the Academy Award winning film, Annie Hall, posted them on the company's website and used them on two billboard locations, one in lower Manhattan and the other in Los Angeles. The billboard images depicted Woody Allen dressed in traditional garb as a Hassidic Rabbi. Unfortunately, all of the images were posted without consent having been sought or obtained. Even though the images were up for less than a month and the billboards were removed shortly after Allen's attorneys wrote a cease and desist letter, the famed actor, writer and director commenced a suit seeking in excess of $10 million in the Southern District. It was alleged, among other things, that American Apparel violated Allen’s privacy and publicity rights, and, falsely misrepresented to the general public that he agreed to advertise for the company or was otherwise affiliated with the brand. It was further claimed that the economic value of any future commercial endorsements by Allen was severely diminished. Allen has maintained complete creative and artistic control over all of his projects and has consistently refused to do any commercial endorsements in the United States. 

        Woody Allen sought not only actual damages, but exemplary damages and attorneys’ fees. American Apparel's CEO has been written about at length for both his management style and certain projects his company has endorsed along social, political and industry based lines, not all of which was complimentary. Allen’s attorneys sought to inject this into the litigation. For example, there have been several employment discrimination lawsuits, where the focus often was the actions, antics or views taken by the company's creative founder. In a bi-coastal legal battle, involving many prominent members of the Hollywood and New York City film industries, Dominick assisted in the resolution of all claims through a global settlement reached just hours prior to the commencement of jury selection on May, 2009, before Senior Federal Judge Thomas P. Griesa. 


                                                FAMILY LAW: SAVE GRANDMA’S HOUSE
             

        
The firm does various Pro Bono activities including Mike Mehary’s participation in the Nassau/Suffolk Law Services Committee’s “Volunteer Lawyer’s Project.”  Mike was assigned an unusual task: to oppose a requested divorce.  The elderly plaintiff had lived in comfort in his own premises for years.  He decided he wanted to get a divorce in order to cause his former marital residence to be sold.  The problem was that his ailing wife would have nowhere to live if the marital home was sold.  Since she could not consent to a divorce because of these consequences, we went to Trial and obtained a defendant’s verdict: the divorce was denied and the defendant will hopefully be able to live out her years, in peace, in the marital residence.  


                                                                LIBEL & SLANDER: EMAILS

        In Walter Boss v. Katen, 26 AD3d 371, 809 NYS2d 190 [2nd Dept 2006], the defendants exchanged e-mails which contained allegedly defamatory information about plaintiff and his business. The Firm was successful in obtaining a complete dismissal of plaintiffs’ lawsuit against our client at the pre-answer stage, without the need to go through expensive discovery. It was argued that under the broader context in which the statements were made, as expressions of personal opinion between two friends and referencing stories about plaintiffs as "bizarre accounts," not as assertions of objective facts, the Court agreed that these e-mails were not actionable under New York’s Libel and Slander laws. 


                                                          MUNICIPAL LIABILITY: LIGHTING

        Plaintiff, who had suffered devastating brain injuries, proffered a clever theory of liability against the Town which caused the trial court to deny summary judgment. Trying to get around the general rule that municipalities will not be liable for a failure to illuminate, unless it is necessary to avoid hazardous and potentially dangerous conditions, she argued that the Town created a dangerous condition by asking homeowners to pile autumn leave in front of their houses for pick-up. Plaintiff, who was struck by a motorist, was speed walking in the early morning hours and claimed she had to walk into the roadway to avoid a pile of leaves that was not illuminated because the street light was out. In Lee v. Town of Brookhaven, 297 AD2d 626, 747NYS2d 233, the Second Department reversed and dismissed the case. The Court of Appeals, 99 NY2d 508, 757 NYS2d 818, refused leave to appeal. The Firm was able to obtain a similar result for the Town in Cracas v. Town of Brookhaven, 204 A.D.2d 382, 612 N.Y.S.2d 55.


MUNICIPAL LAW: PRIOR WRITTEN NOTICE - BOARDWALKS

        In 1992, the Firm obtained an appellate affirmance on the theory that prior written notice, which is a condition precedent to bringing a personal injury lawsuit against a municipality, was required for a defective condition on a boardwalk, since a boardwalk should be treated as a sidewalk for written notice purposes under Town Law §65-a (Ferris v. County of Suffolk, 174 AD2d 70, 579 NYS2d 436). However, in 1994 the Court of Appeals held that written notice provisions must be strictly construed in Walker v. Town of Hempstead, 84 NY2d 360, 618 NYS2d 758. As a result, in 1996, the Second Department held in Fay v. Town of Hempstead 228 A.D.2d 641, 645 N.Y.S.2d 506 that written notice was not a defense for a boardwalk defect. In 2006, the Firm was successful in convincing the Second Department that it should no longer follow Fay in Guiliano v. Town of Brookhaven, 34 AD3d 734, 826 NYS2d 100. It was reaffirmed that written notice was required to maintain an action against a municipality due to a defect in its boardwalks.


PREMISES LIABILITY: BRAIN INJURIES

        The Firm had the unenviable task of defending the building owner in a premises liability case entitled Diego v. Zhu, where the building owner’s basement stairs undeniably violated NYC’s building code. The plaintiff was an employee of a tenant and was going down the stairs when she claims she fell because of the non-uniform stair riser height staircase and an improperly placed handrail. She suffered severe head injuries including a fractured skull and later had a stroke at the hospital. She is now confined to a wheelchair. After spending 3 days on trial, the Firm was able to negotiate a reasonable settlement on behalf of the building owner (who faced potential excess exposure) for $3 million dollars. The plaintiff continued her lawsuit against the hospital for malpractice in causing or contributing to her condition because of the stroke. A jury in the Supreme Court, Queens County [2008], awarded $10.8 million dollars to the plaintiff. You got to know when to hold them, know when to fold them….


SUM ARBITRATION: BRAIN INJURIES

        Faye Fortgang was an independent consultant for New York City’s Department of Education. She arranged for various specialists the school system needed for its students, such as speech therapists, mental health care providers and those with special language proficiencies. Fortgang was crossing in the crosswalk in front of her house when she was struck by a motor vehicle proceeding in reverse, and in the wrong direction, on a one way street, throwing her into the air and onto the ground. She suffered a significant head injury, among other injuries and fractures. Recent income tax returns documented that she was earning between $300,000 - $500,000 per year. She happened to have a $5 million dollar SUM policy and she demanded arbitration. After months of discovery and investigation, including examinations by various specialists, neuropsychological testing, etc., the Firm was able to negotiate a settlement for $1.7 million dollars before allowing the insurer’s fate to be decided by an arbitrator.

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