A SAMPLING OF OUR REPORTED DECISIONS
Grygo v. 1116 Kings Highway Realty, LLC, et al., 2012 N.Y. Slip Op. 05139, _ N.Y.S.2d _ (2d Dept. 2012). On June 27, 2012, the New York State Appellate Division, Second Department upheld a lower court decision granting our clients, an owner and general contractor, summary judgment dismissing plaintiff's New York Labor Law §§ 200, 240 (1) and 241 (6) claims. The underlying matter arose out of a construction site accident where the plaintiff, a union painter, sustained serious personal injuries when a cart filled with dry-wall tipped over onto his leg moments after removing plastic sheeting he previously draped over the cart. Barry Gerstman and Richard Barber successfully argued that the lower court's decision granting summary judgment should be affirmed because (i) the defendants did not exercise supervision and control over plaintiff's work, a pre-requisite to establishing liability pursuant to § 200; (ii) the dry wall and its cart were of an insufficient height to trigger the protections of § 240 (1) – New York's "scaffold law" – and the accident was not caused by a failure to provide a statutorily enumerated safety device; and (iii) because the accident occurred in an open work space, not a passageway, walkway, stairway or other thoroughfare, § 23-2.1 (a) (1) of the New York City Industrial Code was not implicated, and plaintiff was therefore unable to establish liability pursuant to §241 (6) of the Labor Law. Although plaintiff abandoned his § 200 claim, he argued on appeal that the Supreme Court incorrectly dismissed his claims pursuant to §§ 240 (1) and 241 (6) because the weight of the material that fell had the potential to cause serious injury even if it fell from a low height and also that New York Industrial Code § 23-2.1 (a) (1) obligated an owner or general contractor to store materials in a safe manner even if not obstructing a thoroughfare. Following the submission of appellate briefs and oral argument, the Second Department affirmed the Supreme Court's Order, holding that because the accident was not a result of a failure to provide an adequate safety device, but was merely the byproduct of a general hazard encountered at a construction site, plaintiff could not establish liability pursuant to § 240 (1). The Second Department likewise held that the Supreme Court properly determined that because the accident did not occur in a passageway, walkway, stairway or other thoroughfare, § 23-2.1 (a) (1) of the New York City Industrial Code did not apply, and plaintiff was unable to establish liability pursuant to § 241 (6) of the Labor Law. Click here to read the full Article »
Bowman v. Marathon Medical Corp., et al. and Calo v. Marathon Medical Corp., et al.; United States District Court, District of New Jersey, Civil Action 10-cv-4403: On May 31, 2012, the Honorable Dennis M. Cavanagh, U.S.D.J., issued an Opinion dismissing this putative class action in its entirety. The plaintiffs alleged that they were economically damaged when allegedly counterfeit surgical mesh was implanted during surgery. Judge Cavanagh, in a decision that tracked several other recent "no-injury" class action dismissals in which Nora Coleman and Scott Haworth were involved, dismissed plaintiffs' complaint in its entirety, holding that plaintiffs had no standing, as they had demonstrated no injury-in-fact. Based on a Joint Brief authored by Nora Coleman and submitted on behalf of all defendants in both of these consolidated actions, Judge Cavanagh also discussed each individual cause of action alleged by plaintiff, holding that plaintiff would in any case fail to make out a prima facie case of consumer fraud, unjust enrichment or breach of warranty.
Herrington v. L'Orèal USA, Inc. et al., C 09-1597 CW, U.S. District Court, Northern District of California (2010)
On September 1, 2010, Judge Claudia Wilken issued an Order granting defendants' motion to dismiss this "no injury" class action matter involving children's' bath products. This matter is the latest in a series of putative class actions filed against the cosmetics industry and others alleging damages despite the admitted lack of injury on the part of the plaintiffs. Our lawyers have been involved in the defense of other similar matters in New Jersey and Illinois. Scott Haworth successfully argued plaintiff's appeal of the New Jersey matter before the Third Circuit Court of Appeals. In this case, plaintiffs' alleged that the defendants engaged in unlawful conduct "relating to their formulation, manufacturing, distribution and/or sale of cosmetics containing 1,4 dioxane, formaldehyde and/or other ingredients that have not been proven safe…." Plaintiffs' asserted numerous causes of action, including alleged violations of California's false advertising statute, California's Unfair Competition Law and California's Consumer legal Remedies Act as well as claims for violations of thirty-five states' and the District of Columbia's unfair and deceptive trade practices acts, breach of implied warranties, intentional misrepresentation, fraudulent omission and suppression, unjust enrichment, breach of express warranties and violation of the Magnuson-Moss Warranty Act. The court concluded that the plaintiffs failed to plead a cognizable injury-in-fact and therefore, lack Article III standing to bring any of their claims. L'Orèal was represented by Haworth Coleman & Gerstman, LLC and Ice Miller, LLP. Mr. Haworth's former firm, Sedgwick Detert Moran & Arnold, LLP acted as local counsel
Koronthaly v. L'Oréal USA, Inc., 2008 WL 4723862 (D.N.J.), aff'd, 2010 WL 1169958 (C.A.3 (N.J.)
Obtained dismissal on behalf of the defendant in a putative class action where plaintiff alleged several claims "no injury" product liability causes of action, based on the presence of trace amounts of lead in certain lipsticks. This case was one of the first of the so-called "no injury" class actions filed around the country. Scott Haworth, who argued the appeal before the Third Circuit Court of Appeals was also involved in the dismissal of a similar matter in Illinois District Court. Click to read the full decision »
Lowe v. Dollar Tree Stores, 40 A.D.3d 264, 835 N.Y.S.2d 161 (1st Dept. 2007), cert. denied 9 N.Y.3d 891
Product liability matter involving an infant plaintiff who sustained severe eye trauma while utilizing a toy sold to our client by the co-defendant distributor, located in Hong Kong. Based upon the obligation of an upstream seller or manufacturer to defend and indemnify the downstream seller, a summary judgment motion was filed. The trial court's denial of the motion was reversed following oral argument in which Scott Haworth argued on behalf of the defendant. Certification was subsequently denied by New York's Court of Appeals. Click to read the full decision »
K & G Men's Company, Inc. v. L & N Industry, Inc., 2010 WL 1931131 (D.N.J.)
Obtained summary judgment on behalf of a leading global manufacturer of wiring devices and electromechanical products, in a case where plaintiff claimed that an industrial clothes iron started a fire in a retail store. Click to read the full decision »
Walsh v. Shell Oil Company, 2010 WL 2510183 (N.Y.A.D. 2d Dept.)
Summary judgment obtained at the trial level affirmed by the Appellate Division, on behalf of a professional re-imaging company in a case where plaintiff relied on expert's theory in support of claim that she was entitled to damages regardless of notice, where an allegedly dangerous re-surfacing caused her to sustain severe injuries, including reflex sympathetic dystrophy. Click to read the full decision »
Houlihan v. Invacare Corp., 2006 WL 1455469 (E.D.N.Y.)
Product liability matter involving a walker alleged to have fractured from metallurgical failure. Scott Haworth successfully obtained summary judgment based upon a Daubert challenge to the reliability of the proffered testimony of plaintiff's liability expert, a nationally-known metallurgical engineer. Click to read the full decision »
Rypkema v. Time Manufacturing, 263 F.Supp.2d 687 (S.D.N.Y. 2003)
Product liability matter involving fall from a bucket truck, resulting in severe orthopedic injuries. Scott Haworth successfully obtained summary judgment based upon a Daubert challenge to plaintiff's expert's opinion testimony relating to design defect. Click to read the full decision »
Cutroneo v. Synthes, Inc., 12 A.D.3d 811, 784 N.Y.S.2d 247 (3d Dept. 2005)
Barry Gerstman obtained affirmance of a summary judgment in surgical implant device case alleging design defect and failure to warn. The appellate court found that the manufacturer adequately warned of the product's risks and dismissed the complaint.
Sossa v. Eldor Contracting Co., 303 A.D.2d 745, 757 N.Y.S.2d 456 (2nd Dept. 2003)
Representing a general contractor on a multimillion-dollar highway construction contract, Barry Gerstman successfully wrote and argued a summary judgment motion and appeal that resulted in dismissal in favor of his client. The remaining defendant settled for $4.6 million during trial.
Kaczorowska v. Nat'l Envelope, 777 A.2d 941 (App. Div. 2001)
Product liability matter involving an envelope manufacturing machine accident resulting in the traumatic amputation of plaintiff's dominant arm. Plaintiff sought to recover against her employer based upon the intentional wrong doctrine which permits a plaintiff to recover against their employer where the employer's actions result in a "substantial certainty" of injury. Notwithstanding the employer's alteration of the machine in a manner which permitted the accident to occur, Scott Haworth obtained summary judgment, which was upheld on appeal.
Elescano v. Eight-19th Co., LLC, 13 A.D.3d 80, 785 N.Y.S.2d 447 (1st Dept. 2004)
Obtained contractual indemnification, including attorneys' fees, on behalf of property owner, in a case where plaintiff alleged claims under New York Labor Law §§ 240, 241(6) and 200, holding that the applicable contract was in effect on the date in question, regardless of the date it was executed. Click to read the full decision »
Curiale v. Sharrotts Woods, Inc., 9 A.D.3d 473, 781 N.Y.S.2d 47 (2d Dept. 2004)
Obtained summary judgment on behalf of development owner and realty company in a case where plaintiff alleged that he was injured by a latent construction defect. Click to read the full decision »