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Nancy Werner

Mamie Stathatos-Fulgieri Secures a Defense Verdict

By | VBPNP In the News

Congratulations to partner, Mamie Stathatos-Fulgieri, on her recent unanimous defense verdict on behalf of her obstetrician-gynecologist client in Queens County Supreme Court.  

The case involved an elderly woman who experienced post-menopausal bleeding and suspected uterine cancer, requiring an endometrial biopsy. During the biopsy, the uterus was perforated and an infection followed, necessitating an exploratory laparotomy, total abdominal hysterectomy and bilateral salpingo-oophorectomy.  Mamie successfully argued this was a known and accepted risk of the procedure, despite plaintiff’s contention that the doctor went past the uterine wall during the biopsy and failed to recognize the perforation and timely treat it. Mamie effectively contended that during the procedure, the plaintiff did not offer any complaints to alert the doctor that there was any complication, and she was noted to have tolerated the procedure well.  The jury appreciated the argument and returned a unanimous defense verdict in favor of Mamie’s client.

#trialcounsel, #defenseverdict, #medicalmalpractice; #effectivelegalrepresentation

Thomas P. Jaffa Secures Summary Judgment Win

By | VBPNP In the News

On December 6, 2022, Thomas P. Jaffa secured summary judgment in favor of his electrical contractor client and defeated the third-party plaintiff’s motion as to the client in Supreme Court, Suffolk County.  Plaintiff’s Labor Law action alleged a fall from a scaffold as a result of the scaffold wheel becoming lodged into an opening on the floor. 

The Court found there was no showing in the record that the client controlled the activities of the plaintiff on the project.  Therefore, any claim that they were negligent pursuant to the Labor law and thus required to indemnify the third-party plaintiff must be dismissed. 

With respect to contractual indemnification, the Court agreed with Mr. Jaffa that to require indemnification, the Court would have to speculate who was responsible for the work giving rise to the injuries.  The plaintiff did not know and could not identify the hole through photographs.  Third-party plaintiff could not demonstrate who performed the alleged work.  Further, third-party plaintiff having failed to demonstrate any of the prime contractors’ (including the client) responsibility, third-party plaintiff asked the Court to find that the injury arose from each contractor because they worked in the room.  The Court correctly held that there is no provision in the contract that allows for this and third-party plaintiff did not cite any legal precedence for same.  As such, third-party plaintiff’s motion for summary judgment as to contractual and common-law indemnification and contribution was denied and the Court granted the motion of our client dismissing the claims of contractual and common-law indemnification and contribution. 

Finally, the Court dismissed the cause of action for breach of contract as Mr. Jaffa submitted documentation demonstrating that our client had procured insurance as required. 

Neil Mascolo Secures a Summary Judgment Win

By | VBPNP In the News

Partner, Neil Mascolo, wins summary judgment for Harleysville Insurance Company in a Declaratory Judgment action. Neil sought additional insured coverage for his client, a GC, in a Labor Law 240(1) and 241(6) case. The defendants were two separate insurers for two different subcontractors. The insurers denied the tender of coverage based on their argument that there was no written contractual requirement to procure additional insured coverage for the GC and owner. Both insurers also argued that their respective insureds played no role in the underlying accident. Neil successfully established that, not only was there a written contractual requirement for additional insured coverage for the GC and owners, but that both subcontractors played a role in the underlying accident. The court agreed and held that the defendant insurers owed both a defense and indemnity, on as primary noncontributory basis.

VBPNP Recognized by the Prestigious Super Lawyers®

By | VBPNP In the News

VBPNP is very proud to announce that 19 of our attorneys have been recognized by the prestigious Super Lawyers®, a rating service which identifies those attorneys who have attained a high degree of peer recognition and professional achievement. No more than five percent of lawyers from a given state are selected. The following attorneys have been recognized as Super Lawyers in 2022:

Dylan Braverman and Megan Lawless Win Pre-Answer Dismissal of all Claims Against a Staten Island Hospital Based on the EDTPA COVID-19 Immunity

By | VBPNP In the News

On September 30, 2022, Dylan Braverman and Megan Lawless prevailed on a pre-answer motion to dismiss in favor of a Staten Island hospital in the Supreme Court, Richmond County. Plaintiff brought malpractice claims based on care provided in April 2020. The VBPNP COVID-19 Team argued that the claims must be dismissed, based on the broad immunity provided to medical care providers due during COVID-19 surge in New York City. Plaintiff countered that the EDTPA immunity was retroactively repealed based on an affidavit of a NY State Representative. The VBPNP COVID-19 Team countered that the plain language of the repeal was prospective, and that the wishes and desires of one State Representative cannot override the will of the legislature and the law. The Court agreed with the VBPNP COVID-19 Team and dismissed in a groundbreaking decision.

Dylan Braverman, Megan Lawless and Chuck Faillace Win Pre-Answer Dismissal of all Claims Against a Major Manhattan Hospital Based on the EDTPA COVID-19 Immunity

By | VBPNP In the News

On July 7, 2022, Dylan Braverman, Megan Lawless and Chuck Faillace prevailed on a motion to dismiss in favor of a major Manhattan hospital in the Supreme Court, New York County. Plaintiff brought malpractice claims based on care provided in March 2020. The VBPNP COVID-19 Team argued that the claims must be dismissed, based on the broad immunity provided to medical care providers during COVID-19 surge in New York. In this seminal case, the court found that the EDTPA immunity applied warranting dismissal of all claims against. This was the first EDTPA immunity case decided in the influential Supreme Court, New York County.

Gary W. Patterson, Jr. Secures Unanimous Defense Verdict – Sept. 2022

By | VBPNP In the News

On September 21, 2022, Gary W. Patterson, Jr. secured a unanimous defense verdict before Justice Thomas Zugibe of the Supreme Court, Rockland County.  Christian McCarthy served as second chair counsel to Mr. Patterson.  Plaintiff claimed the defendant, an orthopedic surgeon, negligently performed a biceps tenodesis, leading to nerve injury. The surgeon had misidentified a variant musculocutaneous/median nerve for the biceps tendon and anchored it to the humerus bone.  Post-operatively, the 62 year old female plaintiff was diagnosed with severe brachial plexopathy in her dominant arm  She underwent repair surgery, requiring sural nerve harvesting and grafting. The plaintiff was later diagnosed with complex regional pain syndrome, requiring multiple nerve blocks, further nerve repair surgery, and continued motor/sensory deficits in the median nerve distribution. 

Prior to opening statements, Appellate Counsel, Adonaid C. Medina, drafted a motion in limine to preclude introduction of evidence relating to the complex regional pain syndrome, nerve blocks and the need for further surgery, as these claims were not pled in the Bill of Particulars.  Justice Zugibe granted the motion after reviewing the papers and hearing Mr. Patterson’s oral arguments. 

Plaintiff’s Harvard trained orthopedic surgery expert argued that the defendant physician failed to perform a careful inspection of the structure before anchoring it to the bone.  The expert further opined that the surgeon negligently brought the nerve into the operative window, leading to the confusion.  Mr. Patterson vigorously cross-examined the expert, obtaining several critical concessions.  The defense called an orthopedic surgery expert who testified that the defendant surgeon reasonably concluded that the structure found in the operative window was indeed the biceps tendon.  The expert reasoned that because of the variant anatomy, the nerve was travelling laterally, placing it within the operative window.  It was also larger than normal, further contributing to the misidentification.  On damages, Mr. Patterson effectively challenged the plaintiff’s credibility on cross-examination, demonstrating to the jury that she was able to write legibly, despite claims to the contrary on direct. 

In closing arguments, plaintiff’s counsel sought $3 million in past/future pain and suffering, in addition to lost earnings.  The jury returned a unanimous defense verdict after a brief deliberation.   

Mamie Stathatos-Fulgieri Wins a Defense Verdict

By | VBPNP In the News

Congratulations to Mamie Stathatos-Fulgieri for a Defense Verdict in Supreme Court, Queens County where she represented a hospital and the Emergency Department staff in a case involving the suicide death of a 20-year-old male seven hours after being discharged from the Emergency Room (ER). Plaintiff claimed that his son should have been admitted in light of a suicide gesture made prior to the presentation and his substance abuse the days prior to being brought back to the ER, coupled with his admission to an in-patient psychiatric unit a month earlier for two suicide attempts.  Ms. Stathatos-Fulgieri effectively established that a proper examination and evaluation was conducted by the psychiatric team in the ER and their decision to discharge the patient was within their professional judgment and thus, they cannot be held liable. During the cross examination of plaintiff’s expert psychiatrist, Ms. Stathatos-Fulgieri was able to compel the expert to admit that she impermissibly relied, in part, on hindsight reasoning when rendering her opinion. The judge appropriately charged the jury with the hindsight charge and not deciding the issues retrospectively. The jury returned a verdict in favor of the defense.

Mamie Stathatos-Fulgieri
Partner
(516) 282-3355 ext. 109

VBPNP PARTNER RUTH KRAFT HONORED

By | VBPNP In the News

Hon. Ruth B. Kraft, Chair of the Employment Law Group, was honored at the Top Lawyers of Long Island Awards Gala on September 13, 2022.  The gala, celebrating Long Island’s legal leaders, recognized her achievements as a trusted advisor to business organizations and successful litigator. Judge Kraft leads the VBPNP team defending wage/hour and prevailing wage suits, employment misclassification claims and discrimination actions.  A member of the Federal Bar Council employment litigation committee as well as the Nassau County Bar Association employment law and alternate dispute resolution committees, she is an accomplished mediator who has lectured to business and professional groups throughout the United States. VBPNP is proud to recognize Ruth’s most recent recognition; she has previously been honored as a Long Island Power Lawyer and by the Jewish Lawyers Association, Yashar-The Judges and Lawyers Section of Hadassah, and the New York State Association of Administrative Law Judiciary for her contributions to the profession.  In 2022, she was named a Super Lawyer, designated by her peer group as among the top 5 percent in her field.   She holds a Juris Doctor degree from the Yale Law School and a certificate in alternate dispute resolution from Harvard Law School. 

Ruth B. Kraft

Partner

(516) 282-3355