New York Trial & Appellate Victory Alert - July 2019

(July 2019) - Lewis Brisbois' New York Trial and Appellate Teams continue to get defense verdicts for our clients across the New York Metro Area. This alert includes four recent wins: two defense verdicts, one from Kings County and the other from Nassau County, and two appellate wins, one from the New York Appellate Division, Second Department, and the other from the Second Circuit. 

I. Defense Verdicts

New York Trial Lawyer Obtains Defense Verdict in Bicycle-Automobile Accident in Kings County

New York Partner Robert Yodowitz with the assistance of Associate Megan Boyar recently obtained a defense verdict in Kings County. The claim involved an 18 year old man who was knocked off of his bicycle by the insured’s vehicle and subsequently run over, sustaining significant and permanent injuries. The plaintiff had admitted to drinking alcohol and smoking marijuana that evening and later took his bicycle to a local deli to buy some snacks. The plaintiff alleged that he was on his bicycle, following the rules of traffic to return to his friend’s home, when the accident occurred. However, we argued that the plaintiff was not following the rules of traffic and, instead, was joking around, riding his bicycle in circles in the street, crossing over various lanes and directions of traffic.

Despite the plaintiff’s attempt to testify at trial that he had sobered up by the time of the incident, and that our client was going in the wrong direction of traffic when he was struck, we were able to successfully prove to the jury that the plaintiff was fully responsible for the accident. Furthermore, the jury agreed that our client was not in the wrong lane of traffic, but instead had gone around a garbage truck that was double parked and had obstructed any view of the plaintiff in the street. As a result, the Brooklyn jury deliberated for less than an hour and found the operator of the school bus not negligent.

New York Office Obtains Defense Verdict in Nassau County Involving a Plaintiff Who Had a Cervical Fusion Following a Sideswipe Accident

New York Partner James T. Whalen, Jr. recently obtained a defense verdict in Nassau County, Supreme Court. The case involved a two-vehicle collision between our client, a Nassau Inter-County County Express bus, and the plaintiff’s vehicle at the intersection in Queens, New York. The plaintiff claimed that he was sideswiped as he approached a traffic light when the bus struck his vehicle as it passed him. The bus driver claimed that the bus was stopped at the traffic light when the plaintiff’s vehicle entered into his lane of travel and struck the bus. The plaintiff underwent cervical spine fusion surgery as a result of multiple alleged cervical herniations.

In preparation for trial, we had numerous photographs taken at the scene of the accident, which showed the plaintiff’s car and the bus at impact which lent credibility to the bus driver’s version of the accident. Additionally, we called an accident reconstruction expert who testified that based on his inspection of the accident site and his analysis of the photographs of the vehicles, coupled with the damage to the vehicles, the accident could not have occurred as the plaintiff claimed. The expert further testified that the physical evidence, coupled with the applicable physics, were consistent with the bus driver’s version of the events and that the accident was caused by the plaintiff. The plaintiff did not call an accident reconstruction expert.

In summation, we stressed to the jury that both drivers had issues with their recollection but that “a picture is worth a thousand words.” After a brief deliberation, the jury returned with a unanimous defense verdict on liability.

One of the keys to the great outcome in this case was our work with the driver. Each time before the driver testified, we went to the scene with him to refresh his recollection and help him recall exactly what happened. The driver's testimony at his deposition and at trial was crucial in persuading the jury to find against the plaintiff in a case which involved a sideswipe.

II. Appellate

New York Team Wins Appeal of Order Vacating Arbitration Award For PIP Subrogation Claim

New York Associate Kristen Carroll and Partner Gillian J. Pritsos secured a win from the New York Appellate Division, Second Department, of an order vacating an arbitration award on the grounds that it was arbitrary and capricious. The plaintiff had commenced an action in New York Supreme Court to recover for injuries sustained in a motor vehicle accident. The action was then removed to Federal Court and proceeded to trial, with a jury unanimously finding that the plaintiff did not demonstrate, by a preponderance of the evidence, that the accident had caused him to sustain an injury.

The plaintiff’s insurer then sought reimbursement in a compulsory arbitration for the no-fault benefits paid to the plaintiff. At the arbitration, we submitted evidence of the jury verdict, but the arbitrator failed to give preclusive effect to the jury verdict from the federal court action, and determined that our client was 100% at fault for the accident.

In response to this erroneous determination, we commenced a proceeding pursuant to CPLR 7511 to vacate the award, and the New York Supreme Court granted the petition. On appeal, the Second Department affirmed the finding, holding that even though the plaintiff’s insurer was not a party to the federal action, as subrogee, it stood in place of the plaintiff, because they were in privity sufficient to bind the plaintiff’s insurer to the prior judgment.

The Appellate Division noted that, significantly, the jury’s determination that the plaintiff did not suffer an injury precluded the plaintiff’s insurer from recovering paid out no-fault benefits from our client carrier with respect to the accident.

New York Partner Secures Favorable Decision from Second Circuit in Co-op Insurance Policy Dispute

New York Partner Jay Weintraub recently secured a favorable decision from the Second Circuit Court of Appeals in a suit brought by a co-op over an insurance policy dispute. The court upheld a ruling from the Southern District of New York from 2018 that a wheeled electronics recycling bin does not qualify as a vehicle for the purposes of the co-op’s insurance policy issued by our carrier client.

The co-op sought coverage for upgrades to its  gas system following a leak that allegedly occurred after a gas meter in the building’s basement was damaged by a rolling wheeled recycling bin. The co-op claimed that the bin was a vehicle, and therefore the alleged damage and subsequent upgrades were covered by an exception to a gas systems exclusion included in its policy. The co-op sought more than half a million dollars for the alleged damage. Mr. Weintraub moved for summary judgment on the basis that the recycling bin did not meet the definition of a “vehicle.” The lower court ultimately agreed with this definitional argument and granted the motion, concluding that “the term ‘vehicle’ — which appears in the policy's gas systems endorsement as part of the phrase ‘aircraft or vehicles’ — does not encompass what is, in essence, a mobile trash can.”

On appeal, and following oral argument before the Second Circuit, a three-judge appellate panel unanimously upheld the lower court’s decision, stating that “[n]ot everything with wheels is a ‘vehicle’ as that word is commonly understood. Thus, the average insured entering a contract would not reasonably expect that an exemption that refers to ‘aircraft or vehicles’ covers a recycling bin.” The panel further held that “y referring to ‘aircraft or vehicles,’ the policy clearly contemplates objects that transport people or goods, and especially those that can reasonably be expected to cause massive loss.”

Read more about this case on Law360 here (subscription required).

If you would like additional information on any of these cases, or how Lewis Brisbois’ trial or appellate team can assist you in liability matters, please email Gregory S. Katz at or Nicholas Hurzeler at or call 212.232.1300.

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