Firm News

BREAKING NEWS: How to Get a Settlement Discount in Kings County!

Senior Associate, Maria Miller Esq convinced a highly-regarded NYC plaintiffs firm to accept a low 5 figure amount settlement, where the demand started at close to 1 Million dollars.

Plaintiff claimed that because of a trip and fall in a Brooklyn discount store, she suffered a facial disfigurement/ laceration and required a right ankle incision and drainage of a large hematoma. Pictures after the accident were graphic and would have provided vivid evidence for a jury.

Settlement discussions were initiated after the firm developed a detailed injury timeline to show treatment chronologies and extensive medical summary analysis, built out by our Junior Associate, Austin LaBorwit. Maria concluded and argued that all the Plaintiff’s injuries were treated immediately after the accident and had healed since then.

At that point, Plaintiff reduced their demand by half but added an argument that Plaintiff developed significant neurological problems after she hit her head requiring neurological visits.

We pointed to the lack of records of Plaintiff seeing a neurologist for any extensive period and Plaintiff’s counsel again reduced the demand.

After discussion with our client, we conducted an onsite investigation at the Brooklyn discount store and determined that Plaintiff’s version of events leading to her accident was questionable. Further we obtained pictures and videos for discussion at Plaintiff’s deposition.

With our extensive field investigation pictures, videos, comprehensive medical summaries and invaluable timeline chronologies, we were able to secure a favorable outcome with a settlement equal to about 3% of the settlement demand.

Congratulations Maria and the dream team on delivering a fabulous result. 👏👏

How to Win a Breach of Construction Contract Case

By Maria Miller, Esq.

Breach of Construction Contract

Plaintiff homeowner and defendant contractor entered into an agreement for home renovation construction, which allegedly resulted in defective and incomplete construction. gartner + bloom, P.C. represented the general contractor who, after performing substantial construction services, was replaced with another contractor following a dispute with the homeowner. 

Plaintiff then decided to expand the construction project and demanded from our client the costs associated with the new contractor’s fees. Our client was facing a contract claim for more than a quarter million dollars.

In the lawsuit, Plaintiff asserted causes of action for breach of contract, fraudulent inducement, unjust enrichment, violation of General Business Law Sections 349 and 772, New York Lien Law Section 71-a and unjust enrichment. After strategic discovery and targeted deposition questioning, we made a motion for summary judgement the Duchess County Supreme Court granted entirely but for one breach of contract claim. Trial was scheduled for June 2024.

Attorney Maria Miller Esq began settlement discussions with Plaintiff’s counsel and argued line by line each hard cost associated with Plaintiff’s remaining contract claim.  

Further, during the pre-trial conferences with the assigned judge, Maria carefully negotiated and secured successively lower settlement demands (at one point arguing successfully for a legal fees sanction against Plaintiff’s counsel).

Plaintiff’s counsel paid the legal fees sanction and, deciding that discretion was the better part of valor, accepted Maria’s settlement offer to avoid further litigation setbacks. 

In the end Maria Miller Esq settled the case for 16% of the initial demand and avoided our client being personally exposed to an uninsured judgment. 

Congratulations and Champagne Cheers to Maria and the team💜🥂💜

Integral to the Work Defense Strikes Again

By Jessica Price

New York Labor Law remains an uphill battle for the defense as the Court limits the integral to work defense under Labor Law 241(6). The lower courts were recently more inclined to deny plaintiff summary judgment as to Labor Law 241(6) based on a violation of Industrial Code Section 12 NYCRR 23-1.7 (d) based on the integral to the work defense, but in its February 20, 2024 Court of Appeals Decision in Bazdaric v. Almah Partners LLC, 2024 N.Y. LEXIS 71, the Court overturned the lower courts’ denial of plaintiff’s summary judgment motion as to Labor Law 241(6), finding that the integral to the work defense was inapplicable as to Industrial Code 12 NYCRR 23-1.7 (d).  

In Bazdaric, plaintiff, a painter, slipped and fell on a plastic covering that was placed over an escalator, which he had to stand on so he could paint.  When plaintiff stood on the plastic, he slipped and fell due to the plastic covering.  The lower courts held that the plastic covering was integral to the work and denied plaintiff summary judgment as to Labor Law 241(6) pursuant to 12 NYCRR 23-1.7 (d).  Plaintiff argued that drop cloths would have been appropriate.

In the Court of Appeals Decision, the majority held that plaintiff established that the covering was a slipping hazard that defendants failed to remove in violation of Industrial Code 12 NYCRR 23-1.7 (d), rendering defendants liable under Labor Law § 241 (6). The Court heled that “additionally, contrary to the Appellate Division's conclusion, the plastic covering was not integral to the paint job but was created by use of a nonessential and inherently slippery plastic that caused plaintiff employee's injuries.” 

As always with Labor Law, the Court of Appeal’s Decision is heavily reliant on the deposition testimony of the parties.  The Court sites to plaintiff’s deposition testimony wherein he testified that he complained about the use of the plastic, which was unsecured.  Further, the general contractor’s superintendent also testified that the plastic was the wrong type of covering for the escalator and that often wood would be used instead.  The Court was unmoved by an affidavit from a foreman stating that plaintiff had placed and used the plastic covering himself, even though canvas drop cloths were available.  The majority opinion finds that the plastic covering was not part of the escalator and therefore was a foreign substance under 12 NYCRR 23-1.7 (d).  

The concurring opinion of Justice Garcia notes that the majority fails to focus on 23-1.7(d)’s requirement that a foreign substance caused the slippery condition. “The Court invoked the principle of ejusdem generis to conclude that the plastic sheeting was not a foreign substance because it "is not similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water or grease." This dicta may be useful in distinguishing cases in motion practice as the Court’s conclusory finding that the plastic covering was a foreign substance is devoid of any reference to snow, water or grease. 

This Decision only further emphasizes the need for thorough questioning during depositions to obtain all facts that could sway the Court.

Generative Artificial Intelligence and the Legal Industry: New Jersey and Florida Weigh In 

By Jacqueline Muttick & Kenneth O’Donohue

While attorneys have been navigating both the implementation and implications of artificial intelligence in the legal industry, the courts and state legislatures have been weighing the ethical hazards related to use of this emerging technology. Two recent examples are Florida and New Jersey. Florida has now issued ethical guidelines for the use of artificial intelligence in the legal industry, while New Jersey has released preliminary guidelines for it.

Generative artificial intelligence (“AI”) utilizes neural networks comprised of large datasets to generate content. This is how a program like ChatGPT takes a prompt, performs automated analysis using predictive models, and provides a text output to the user. While this can be a valuable tool when used correctly, the novelty of AI has led to unanticipated outcomes, including the generation of false information. The consequences of such false information have resulted, in some extreme cases, in attorney sanctions and ethical complaints against lawyers that have improperly utilized AI. In response, courts have established committees to offer guidance to both the courts and legal counsel.

Florida’s guidelines (Opinion 24-1) stress the need for confidentiality, accuracy, competency, and adherence to current ethical standards. Florida does not bar the use of AI, but does require oversight to ensure that firms establish polices for the use of AI in research, drafting, and communications. All law firm personnel, including third-party vendors, should be aware of and adhere to these policies. AI results must be verified for accuracy and truthfulness, and must be consistent with attorney professional and ethical standards.

The Florida guidelines also address legal billing. Any costs associated with the use of AI should be disclosed to clients, and any increases in efficiency should be reflected in invoices. Further, lawyer advertising created by AI must adhere to current legal advertising standards. To the extent that AI is used on a lawyer’s website as a chatbot, that program should be modified to conform to ethical rules, including disclosing it is a chatbot, limiting responses to avoid giving legal advice, and including screening questions to prevent communications with website visitors already represented by counsel.

Florida’s opinion also stresses that confidentiality must be maintained when utilizing AI. Users must prevent disclosure of confidential information, particularly because AI programs may store and save user prompts thereby retaining confidential information. Before utilizing AI, attorneys should determine the security protocols concerning user prompts, as well as how user prompt information is utilized, retained, and destroyed. Further, if confidential information must be disclosed to an AI program, client consent may be required.

New Jersey’s preliminary guidelines, while not as robust as those issued by Florida, still provide direction by stressing that AI does not change the core ethical responsibilities for lawyers.

New Jersey emphasizes that lawyers should engage with AI carefully, focusing on accuracy and truthfulness which includes verifying all information generated by AI. Lawyers may use AI in interacting with clients, and, if asked, must disclose its utilization. Lawyers should remain cognizant of the possibility that AI may generate false information and should therefore confirm all generated information. Disclosure of confidential information must be avoided and it is incumbent upon lawyers using AI to ensure the security of confidential information. Firms and lawyers are responsible for overseeing other attorneys and staff in the ethical use of AI.

Overall, the Florida and New Jersey guidelines underscore the ethical duties already incumbent upon all attorneys and provide direction on considerations that must be undertaken prior to utilizing AI in legal work. With the proliferation of AI in a variety of contexts, including those that may not be obvious at first glance, attorneys must remain attentive and conscientious in adhering to current ethical requirements, and must familiarize themselves with the emerging technology prior to utilization.