Early Motion to Dismiss Granted
PermalinkAssociate Robert Fanning succeeded in securing a dismissal for the Firm’s client, Tudor Insurance Company, in a lawsuit brought by a building owner against a contractor and the contractor’s insurer (Tudor). Robert drafted and argued the motion in Supreme Court, New York County, before Justice Shlomo Hagler, who summarily dismissed the claim from the bench.
Proper analysis of the insurance law was the key to this successful result, but the strategic decision to make this motion early was the key to the client avoiding significant legal fees exposure.
The case is Skibar v. 338 West 15th Street, LLC, Index No. 157241/2018.
Proper analysis of the insurance law was the key to this successful result, but the strategic decision to make this motion early was the key to the client avoiding significant legal fees exposure.
The case is Skibar v. 338 West 15th Street, LLC, Index No. 157241/2018.
G&B successfully opposes Motion to Restore, leading to dismissal, of Suffolk County matter that presented unique property damage allegations
PermalinkBy: Gartner & Bloom, P.C.
Date: September 27, 2018
See the decision here.
Date: September 27, 2018
Partner Arthur P. Xanthos and Associate Michael E. Kar successfully opposed a plaintiff’s Motion to Restore in a matter containing unique property damage allegations. Following the submission of opposition to the Motion, the case was dismissed.
See the decision here.
Ignoring Court Ordered Discovery Leads to Preclusion of Tenant’s Claim, by Arthur Xanthos
PermalinkDentists are fond of saying if you ignore your teeth, your teeth will go away. The same is true in litigation: ignore your discovery obligations and your claim will go away. This Firm is defending a building owner in a case brought by a tenant (who happens to be a lawyer). The tenant alleges among other things bodily injury from second-hand smoke in his apartment. As is customary, we demanded medical authorizations (to secure medical records related to the tenant's treatment) and a bill of particulars compelling the plaintiff to particularize his bodily injuries. We also made sure the court included those demands in several court orders.
For unknown reasons, the plaintiff-tenant-lawyer refused to hand over medical authorizations and refused to particularize his injuries. After several attempts at securing the documents failed, this Firm made a motion to compel the tenant to produce the medical authorizations and to serve a meaningful bill of particulars. That motion resulted in an order, with which the plaintiff-tenant-lawyer failed to comply. So another motion was made, and this time an order was sought to preclude/dismiss the tenant's bodily injury claims. That second motion resulted in a more stringent order setting another deadline for the tenant's compliance, and warning the tenant of penalties for non-compliance. The tenant again failed to comply. At a subsequent conference and upon being advised of the tenant's non-compliance, the court after oral argument precluded the tenant from any bodily injury claims at trial, and dismissed any negligence claims found in his complaint. A copy of this decision/order (Johnson v. 78/79 York) can be found at this Firm's website (www.gbglaw.com) under Publications.
Preclusion orders are very rare, especially against pro se plaintiffs. Counsel should expect to make more than one motion, and should request a progressively stronger sanction with each motion made. Obtaining such an order is not a quick exercise either, as it took nearly two years to secure the one discussed herein. -APX 12/16/14
For unknown reasons, the plaintiff-tenant-lawyer refused to hand over medical authorizations and refused to particularize his injuries. After several attempts at securing the documents failed, this Firm made a motion to compel the tenant to produce the medical authorizations and to serve a meaningful bill of particulars. That motion resulted in an order, with which the plaintiff-tenant-lawyer failed to comply. So another motion was made, and this time an order was sought to preclude/dismiss the tenant's bodily injury claims. That second motion resulted in a more stringent order setting another deadline for the tenant's compliance, and warning the tenant of penalties for non-compliance. The tenant again failed to comply. At a subsequent conference and upon being advised of the tenant's non-compliance, the court after oral argument precluded the tenant from any bodily injury claims at trial, and dismissed any negligence claims found in his complaint. A copy of this decision/order (Johnson v. 78/79 York) can be found at this Firm's website (www.gbglaw.com) under Publications.
Preclusion orders are very rare, especially against pro se plaintiffs. Counsel should expect to make more than one motion, and should request a progressively stronger sanction with each motion made. Obtaining such an order is not a quick exercise either, as it took nearly two years to secure the one discussed herein. -APX 12/16/14