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Effective April 1, 2020 Picciano & Scahill P.C. will be
SCAHILL LAW GROUP P.C.
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February 2020 iNews Issue 97
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Trial Tips I
Obtaining a defense verdict on the issue of serious injury under the NY threshold law in Kings County is more difficult than it used to be. As Brooklyn demographics have changed, so has the pendulum swung in favor of plaintiffs on verdicts. The younger, more affluent, typically far left liberal "Hipster" jurors are generally more sympathetic to a plaintiff than a defendant. It is not uncommon to question a room of prospective jurors where only a fraction of those present were born and raised in the Borough. The Brooklyn I knew as a youth in the '60's is now a memory, shown on Netflix. Today's jurors are far more hostile to your case and your witnesses and are predisposed to award money damages.
I have always recommended the use of social media on cross examination of the plaintiff. We obtained a defense verdict on damages last year in Steven Arcuick v. Daun (522513/16) with the use of social media. At the onset of cross examination we reviewed with the plaintiff the limitations he expressed in performing daily activities.
Q. Now, at that time, when you were deposed in 2017, you were asked about your complaints about this accident, correct?
A. Correct.
Q. And you told under oath that you were complaining about your back, your shoulders and your neck?
A. Yes.
Q. And you said that you had pain every day?
A. Yes, almost every day.
Q. You said you had pain in your back at least ten times a day?
A. Yes.
Q. You also said that the pain was down your whole back, from your neck, down, all the way to your back, at least ten
times a day, do you recall that testimony?
A. Yes, correct.
Q. And you also said it was sharp pain and it locks up and it spazzes (sic), that was your word, right?
A. Yes.
Q. Do you remember all of that?
A. Yes.
Q. And all that testimony was true?
A. Yes.
Q. You talked about that you had pain in your shoulders to the extent that you couldn't move your right or your left arm?
A. Correct.
Q. Do you remember giving that testimony?
A. Yes.
Q. All of that was true?
A. Yes.
Q. And that was three years after the accident?
A. Yes.
Q. And Mr. -- plaintiff's counsel was asking you, Peter was asking you whether or not you would do food shopping, you
had a long discussion about food shopping?
A. Correct.
Q. Back in 2017, you said you never food shop, right?
A Right.
Q. Because you couldn't pick up the bags?
A. Right.
Q. You also said you couldn't clean the house, right?
A. Right.
Q. Do you remember giving that testimony?
A. Yes.
We then walked the plaintiff through his many on line postings on Social media.
Q. So we heard about Facebook and you heard about that you post online activities about your daily life, you put up
pictures of yourself and your girlfriend and your friends online?
A. Yes.
Q. I'm going to go through those social media pictures with you.
A. Okay.
Q. So you just talked about trips, so since this accident, you've been to Vegas with your buddies?
A. Mm-hmm.
Q. Yes?
A. Yes, correct.
Q. St. Martin with your girlfriend?
A. Yes.
Q. San Juan, Puerto Rico with your girlfriend?
A. Yes.
Q. Punta Cana?
A. Yes.
Q. The Yucatan Peninsula, Playa del Carmen.
A. Yes.
Q. And where is Happy Bay Beach in St. Martin?
A. That was one of the trip stops that the tour made.
After showing the jury the great life the plaintiff is living travelling to resorts in the U.S. and trips he has made outside of the country he is asked:
Q. You are aware, Mr. Arcuik, that your online presence is not compatible with what your testimony is, the photos and the
video, everything you put online show that you're living a normal life, with a nice family, nice friends, doing all the
things that you want to do with absolutely no restrictions, you are aware of that?
His answer won the case:
A. I'm doing them with having consequences of pain.
If you are able to depict a plaintiff as severely exaggerating the extent of his or her injury, or completely fabricating a claim, a Brooklyn jury may turn the plaintiff out of Court. The proper use of social media postings, which must be exchanged in advance of trial, can be the best part of your case if used effectively. The younger the plaintiff, the more chances his or her social media accounts show every aspect of their lives. Often the social media postings help the defense in ways your own witnesses can never accomplish.
Read the transcript
here.
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Our motto is "Where Results matter" and we deliver. In 2019, we obtained 34 defense verdicts on Third party liability trials. A list of the impressive victories we obtained are below:
Chris McCune
obtained a defense verdict on damages on January 11, 2019 in Civil Court in Richmond in Zi Xiu Zang v. Andrew Labbate Jr. (Index number : 336/2018).
Tom Craven
obtained a defense verdict on damages on January 22, 2019 in Kings County before Judge Walker in Jhonatan Moncion v Robert Dimperio (Index No.: 9729/13). Policy limits were $300,000/$500,000 + $1,000,000 excess.
Chris Amato
obtained a defense verdict on the issue of liability in Kings County on February 11, 2019 before Judge Lara Genovesi in Baruch Andrusier v. Daniel Vaturi (Index No.: 13972/2015).
Jesse Squier
obtained a defense verdict on the issue of liability on February 28, 2019 in Kings County before Judge Sweeney on the case of David Rosenblatt v. Cypora (Index Number: 500410/2017). This case involved a pedestrian collision with a claim of Traumatic Brain Injury. Our client testified via Skype from Israel.
Chris Fingerhut
obtained a defense verdict in Civil Court, Kings County following a March 13, 2019 Bench Trial before Judge Lisa Headley in New York County in Urban Well Acupuncture a/s/a Andre Paul v. State Farm (Index No : 044724/111).
Gil Hardy
obtained a defense verdict on March 28, 2019 in Nassau County before Justice Judge Sharon Gianelli on Andrew Lawrence Joseph Emanuelo (Index Number: 7217/2016).
Gil Hardy
obtained a defense verdict on April 9, 2019 in Nassau County before Justice Thomas Feinman on Angela Montgomery v. Justin Carbone (Index Number: 10085/2010).
Rich Brown
obtained a defense verdict on the issue of damages in Kings County, Supreme Court before Judge Karen Rothenberg on April 16, 2019 in Ekaterina Laugina v. Agron Yevdaev (Index Number: 507310/2016).
Chris McCune
obtained a defense verdict following trial in District Court before Judge James Flanagan in Jerome Accardi v. Andrew Hurley and Lindsay Roberti (Index No: 449/18).
Paul Duer
obtained a Defense verdict on the issue of liability in Queens County on May 3rd, 2019 in LIJIAN ZHAI & DAI XIU RANG v. FULL CAB CORP. and MOHAMMAD SHAFIULLAH (Index Number: 709120/2016) before Judge Frederick Sampson.
Zach Nastro
obtained a $15,000 verdict in Westchester County on May 6, 2019 in the case of EDWARD CARTER v. CATALINO RAMOS (Index Number: 55298/2013). The plaintiff underwent right shoulder arthroscopic surgery on January 21, 2013, with Dr. Emmanuel Hostin. The plaintiff also underwent an anterior discectomy and fusion on February 23, 2015, performed by Dr. Michael Gerling. Due to post-surgery complications, the plaintiff developed a seroma, for which Dr. Gerling performed a second surgery on March 5, 2015. During closing arguments, the plaintiff requested $242,000 in past medical expenses; $1.2 million - $1.4 million in future medical expenses; $1.75 million - $2.5 million in past pain and suffering; and $3 million- $5 million in future pain and suffering. The jury returned a verdict of $5,000.00 for past pain and suffering; $0 future pain and suffering; and $10,000 for medical expenses.
Anthony Graziani
obtained a defense verdict on the issue of damages on May 8, 2019 in Suffolk County before Judge Linda Kevins in MICHAEL J. SCOTT and WENDY A. SCOTT v. JEANNE PROCHILO (Index Number: 33410/2007).
Frank Scahill
obtained a liability verdict on May 16, 2019 in Suffolk County before Judge Martha Luft in CHRISTOPHER MONTAGNA v. JOHN G. ULLENES (Index Number: 24160/2013). The jury found the plaintiff to be 85% at fault for the accident with a 15% allocation of fault versus our client.
Charles Mailloux
obtained a defense verdict on liability on May 20, 2019 in Queens County, Supreme Court before Judge Timothy Dufficy on Lian Jun Chai v Xi Zheng (Index Number: 4041/2017).
Brian Murray
obtained a defense verdict on liability on May 20, 2019 in Kings County, Supreme Court before Judge Edgar Walker on Magdalia Vidot v. Hussain Badr (Index Number: 501724/2015).
Charles Mailloux
obtained a defense verdict on May 24, 2019 on the issue of liability in Jacqueline Denson v. Kulwinder Singh, Feliz Paulino and Belkis Gonzalez (Index No. 300054/17) before Hon. John C.V. Katsanos in Civil Court, Queens County.
Tim Jones
obtained a defense verdict on damages in Bronx County Supreme Court after a thee week trial on May 24, 2019 before Judge Elizabeth Taylor in Michael Padilla v. High Thor Taxi Corp. and George Nkrumah (Index Number: 20645/2013).
Brian Murray
obtained a defense verdict on June 17, 2019 in Kings County on the issue of liability before Judge Kathy King on Nerissa Spence v. Amos Periclses ( 502605/2013).
Rich Brown
obtained a defense verdict on the issue of liability on June 20, 2019 in Kings County before Judge Genine Edwards on Reyna Arias v. Jaime Alonso-Ponce (Index No: 505965/2013).
Charles Mailloux
obtained a defense verdict on the issue of liability on June 27, 2019 in Queens County before Judge Pamela Jackman Brown in Richard McCray v. Vera Kitt (Index Number: 702901/16.
Brian Murray
obtained a defense verdict on July 15, 2019 on the issue of liability in Kings County in Victor Reyes-Gonzalez, Anselmo Hernandez and Armando Zacapa v. Julio Inga-Bermeo before Judge Loren Baily-Schiffman. (Index No. 8386/14).
Tim Jones
obtained a defense verdict on damages on August 1, 2019 in Monique Burrell and Joseph McCants v. Carol Patterson, (Index No: 304993/13) before Judge Ben Barbato in Bronx County.
Eric Flores
obtained a defense verdict in New York County on August 2, 2019 before Judge Verna Saunders in Rodney Carter v. Gualber Morales Cruz (Index Number 153013/2017).
Frank Scahill
obtained a defense verdict on damages in Kings County on August 8, 2019 before Judge Pamela Fisher in Steven Arcuik v. Daun Cab Corp. (Index No 522513/16).
Charles Mailloux
obtained a defense verdict on the issue of damages on August 13, 2019 in Queens County Civil Court before Judge Lourdes Ventura in the case of Tylisa Gaffney v. Abigail Pagan-Velazquez (Index No. 350230/19).
Tony Graziano
obtained a defense verdict on liability on August 15, 2019 in Suffolk County before Judge Martha Luft in Rita Moreno v. Carolyn Mullen (Index No : 061970/13).
Charles Mailloux
obtained a defense verdict on the issue of liability in Queens County on September 18, 2019 before Judge Buggs in Emad Ebaid v. Fursley Walsh (Index No: 71185/16).
Gil Hardy
obtained a defense verdict on damages on September 26, 2019 in Nassau County before Judge Brown in the case of Jerome Sharpe v. Gilda Greco (Index No .5133/13).
Charles Mailloux
obtained a defense verdict on the issue of damages on October 24, 2019 in Queens County before Judge Dennis Butler in Keumok Han v. Spyridon Spetsieris (Index No: 707898/17).
Zach Nastro
obtained a defense verdict on the issue of liability on November 15, 2019 in Civil Court, Queens County, in Satish Kohli v. Richard Zaremba (Index Number: 350671/19).
Zach Nastro
obtained a defense verdict on the issue of damages on November 21, 2019 before Judge Lucindo Suarez in Bronx County in Jasmine Soto v. Michael Vargas-Quispe (Index No. 28025/16).
Howard Greenwald
obtained a defense verdict on November 27, 2019 in Queens County on the issue of damages before Judge Leslie J. Purificacion in Uingston Markes v. Fordham Management NY Corp. (Index No. 711193/16).
Tom Craven
obtained a defense verdict on the issue of liability on December 10, 2019 in Kings County before Judge Lara Genovesi in Necehelle Stolzenberg v. Jordan Ajpacaja (Index No: 508882/16).
Charles Mailloux
obtained a defense verdict on damages on December 13, 2019 in Civil Court, Bronx County, before Judge Fidel Gomez in Rafael Sanchez v. Tristan Hall (Index No. 300098/19).
Our Appellate and Motions Department led by Keri Wehrheim had equally impressive results, prevailing in 15 appeals to the Appellate Division, First and Second Departments. A list of our successful appeals in 2019 is set forth below:
On January 7, 2020 we prevailed in the Appellate Division, First Department in Grate v. Rodrigues (2020 NY Slip Op 00081) which affirmed the lower Court dismissal of a claim based on plaintiff's inability to establish that he suffered a serious injury within the meaning of Insurance Law § 5102(d).
On December 29, 2019 we prevailed in the Appellate Division, Second Department in Joseph v. Kelly (2019 NY Slip Op 09258) which reversed the lower Court decision granting summary judgment on the issue of liability to a co-defendant.
On November 20, 2019 we prevailed in the Appellate Division, Second Department in Schneider v. Hanasab (177 A.D.3d 923) where the co-defendant's appeal was denied on a motion for summary judgment.
On October 31, 2019 we prevailed in the Appellate Division, First Department in Wade v. Giacobbe (176 A.D.3d 641) which sustained a dismissal of the action by the Supreme Court.
On October 8, 2019 we prevailed in the Appellate Division, First Department in Elco Administrative Services v. Bones-Rojas (176 A.D.3d 459), which modified the order of the Supreme Court, requiring a hearing on the jurisdiction of the Court over a foreign domiciliary Insurance Company.
On September 25, 2019, we prevailed in the Appellate Division, Second Department in
Flores v. Rubenstein
(175 A.D.3d 1490) where the plaintiff's appeal was denied on a motion for summary judgment.
On July 9, 2019 we prevailed in the Appellate Division, First Department in Freeman v. Shtogaj (174 A.D.3d 448) where the Appellate division reversed a judgment from the Supreme Court and ordered a new trial on the issue of damages.
On June 19, 2019, we prevailed in the Appellate Division, Second Department in Wynter v. City of New York (173 A.D.3d 1122), which reversed the order of the Supreme Court, which had granted summary judgment on the issue of liability to the municipal defendants.
On May 23, 2019 we prevailed in the Appellate Division, First Department in
Black v. Gordon
(172 A.D.3d 580) which sustained a dismissal of the complaint on our motion for summary judgment on the issue of serious injury under
Insurance Law § 5102(d)
.
On May 1, 2019, we prevailed in the Appellate Division, Second Department in Brodney v. Picinic (172 A.D.3d 673) which reversed a summary judgment decision against our client on the issue of liability.
On April 24, 2019, we prevailed in the Appellate Division, Second Department in State Farm v. McLaurin (171 A.D.3d 1191) which reversed the order of the lower court which denied our application for a permanent stay of arbitration.
On April 23, 2019 we prevailed in the Appellate Division, First Department in Progressive Insurance v. Bartner (171 A.D.3d 598) which reversed the order of the lower court, and ordered a hearing on our petition to stay arbitration.
On April 17, 2019, we prevailed in the Appellate Division, Second Department in Gray v. Air Excel Supply (171 A.D.3d 1026) which sustained a denial of summary judgment to the defendant vehicle owner, Air Excel Supply.
On April 10, 2019, we prevailed in the Appellate Division, Second Department in Jaber v. Todd, (171 A.D.3d 896) which reversed the order of the lower court which had granted summary judgment to a co-defendant.
On March 6, 2019, we prevailed in the Appellate Division, Second Department in Gute v Grease Kleeners, Inc., (170 A.D.3d 676) which denied the appeal of the co-defendant on a summary judgment liability motion.
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Trial Tips II
Dr. David H. Delman is the Chief Executive of DHD MEDICAL, P.C., a medical practice with two locations in Brooklyn and one in Manhattan. We frequently see his reports for plaintiffs on personal injury cases. If you google his name you will find him on a site called "injured-call today"
https://protect-us.mimecast.com/s/GQXLCBBpPmfPjGohNHFtg?domain=injuredcalltoday.com.
Tim Jones from our office obtained a defense verdict on a Bronx case (Padilla v. Nkumah 20645/13) where Dr. Delman was the plaintiff's expert witness. On cross examination Dr. Delman was questioned on the discrepancies between the history, diagnosis and treatment plan in the hospital record and the records of his own facility. He was also questioned extensively about his lack of knowledge of the treatment the plaintiff underwent from other physicians. His opinion on the issue of causation was undermined by his lack of familiarity with the plaintiff's treatment and his compensation for his time in Court. Some highlight's from the cross examination are below and the transcript is attached. The exchange with Dr. Delman is worthy of review.
Q. Now the plaintiff's referred to you by his attorneys. Correct?
A. Yes, sir.
Q. When Mr. Padilla went to see you in May of 2019, who paid for that visit?
A. Say it again?
Q. Who paid for it?
Q. Who paid for the visit?
A. I was paid as part of the preparation for trial.
Q The attorney paid. Correct?
A. Correct.
Q. And you hold no board certifications in the field of medicine for which you were treating the plaintiff, that being physical medicine and rehabilitation. Correct?
A. Correct.
Q. And notwithstanding the fact that you're not a Board Certified radiologist and you only reviewed the films last week, you, nevertheless, gave an opinion on causality in your January 2015 report. Correct?
A. That's correct.
Q. That's a yes. Correct?
A. Yes.
Q. And you gave that opinion stating that the accident has a direct causal relationship to the patient's injuries.
A. Correct
Q. Without having reviewed the films. Correct?
A. That's correct.
Q .And you're aware, doctor, that radiologists, Board Certified radiologists, are trained to determine whether the film shows evidence of trauma or whether the film shows evidence of degeneration?
Are you aware of that?
A. Yes.
Read the transcript
here.
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On January 28, 2020 the Appellate Division, First Department addressed the issue of a mistrial declared by Judge Donald A. Miles, of Bronx County Supreme Court in a Summary Jury Trial in May of 2019. In Vargas v LaMacchia (2020 NY Slip Op 00556) the Court reversed the decision of the Supreme Court and reinstated the verdict. Judge Miles declared the mistrial to correct an erroneous evidentiary ruling. The Appellate Division noted, "A summary jury trial is a voluntary, innovative and streamlined form of alternative dispute resolution that combines the flexibility and cost-effectiveness of arbitration with the structure of a conventional trial" (Griffin v Yonkers, 26 Misc 3d 917, 918-919 [Sup Ct, Bronx County 2009]). "In the absence of agreement of counsel and approval by the trial court, the process provided in the rules of the jurisdiction apply" (id. at 919)... While this was an attempt to correct an admittedly erroneous evidentiary ruling, the parties' stipulation to a summary jury trial, subject to the applicable rules and procedures for Bronx County, was a legally binding contract (see Chae Shin Oh v Jeannot, 160 AD3d 701, 702-703 [2d Dept 2018]; Bennice v Randall, 71 AD3d 1454, 1454-1455 [4th Dept 2010]; Grochowski v Fudella, 70 AD3d 1407, 1408 [4th Dept 2010]; see also Acosta v Xinna Lu, 65 Misc 3d 1224[A], 2019 NY Slip Op 51826[U], [Civ Ct, Bronx County 2019]). Since the summary jury trial rules for Bronx County do not provide for any means to correct errors of law committed during trial, the court exceeded the boundaries of the parties' agreement by setting aside the verdict, regardless of whether it in fact did so on its own initiative in the interest of justice..."
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No Fault Decision of Interest
Explaining the nuances of NY No-Fault Litigation to a colleague who never practiced in the field is akin to explaining an alternate universe. A recent case of interest is illustrative of the New York no fault paradox. Here the issue was receipt of proper requests for verification under 11NYCRR 65-3.5(b) set forth below:
65-3.5 Claim procedure.
(a) Within 10 business days after receipt of the completed application for motor vehicle no fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.
(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms. Any requests by an insurer for additional verification need not be made on any prescribed or particular form. If a claim is received by an insurer at an address other than the proper claims processing office, the 15 business day period for requesting additional verification shall commence on the date the claim is received at the proper claims processing office. In such event, the date deemed to constitute receipt of claim at the proper claim processing office shall not exceed 10 business days after receipt at the incorrect office.
(c) The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.
Here the Providers' counsel argued the misspelling of the providers mailing address nullified the verification process as the presumption of receipt of the verification request could not be presumed. The Arbitrator correctly pointed out that a payment by the same insurer sent to the same misspelled street address was received and cashed by the provider. The provider's case at arbitration was dismissed. Only in No Fault Litigation would you find an argument like this.
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Social Media Posts Of The Month
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Our Social Media Award of the Month goes to Darwin Gomez. On February 4th, 2020 he testified about his restrictions from a May 6, 2015 motor vehicle accident. Mr. Gomez finds it difficult and painful to lift heavy groceries, such as cases of water. He cannot lay on the same side for too long when he sleeps. If he lifts his arm, it hurts. He cannot sit for too long because his back hurts. He cannot help his wife carry household items. He lacks range of motion in his neck. The same plaintiff posts hundreds of photos, available to the public view, showing him at the gym regularly working out, as well as posted videos showing him lifting weights. You can see more of Darwin than anyone would ever want to by just googling his name.
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Effective April 1, 2020 we will be changing our firm name from Picciano & Scahill P.C. to
Scahill Law Group P.C.
All business will continue as usual. Please note our new contact information:
- Our new website will be www.scahillpc.com
- Our current e-mail address ending in @psnylaw.com will always remain active. However, our new primary address will end in @scahillpc.com.
- Our office location, phone, and fax numbers will remain the same
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