News

Robert Vizza – Dual Knockouts In Appellate Division

May 19, 2015

March 18, 2015: Success on Appeal in the Second Department in a Premises Liability Case

Plaintiff sued the developer and contractor of a shopping mall for money damages claiming she sustained personal injuries when she allegedly fell while attempting to walk across a curb cut ramp descending from a sidewalk to an adjacent parking lot.  Plaintiff came up with an expert affidavit hoping that this would be sufficient for the judge to find a question of fact requiring a trial.  However the trial judge was more convinced by the arguments put forth by BM&M, and granted the defendants’ motions for summary judgment dismissing the case and plaintiff took an appeal to the Appellate Division, Second Department.  Robert G. Vizza wrote the brief and argued the appeal.  The Appellate Division agreed with our argument that the plaintiff’s inability to say what caused her to fall was fatal to her case.  Thus it was sheer speculation for plaintiff’s supposed safety expert to come up with any alleged defects in the ramp, particularly given the photographs which clearly show there was nothing unusual about the premises where plaintiff fell.

 

May 14, 2015: Success on Appeal in the First Department in a Medical Malpractice Action

Plaintiff commenced a medical malpractice action in Supreme Court, Bronx County, alleging a delay in diagnosis of an infection in his knee requiring surgery.  In the trial court, BM&M partner Grace McCallen drafted a motion supported by an affidavit from an infectious disease expert.  Plaintiff’s opposition relied upon an expert orthopedist.  The trial court granted summary judgment to the defendants dismissing the case, and plaintiff took an appeal to the Appellate Division, First Department.  The appeal was handled by our appellate practice group.  Patricia D’Alvia wrote the brief and Robert G. Vizza handled oral argument.  The First Department agreed with our arguments that the plaintiff’s symptoms when seen by our client were the result of a mechanical injury to his knee, meaning that the infection occurred several weeks later.  More importantly, the First Department, which tends to consider expert affirmations from any specialty, agreed with BM&M’s criticism of plaintiff’s expert credentials in that the orthopedist had no basis to opine on the infectious disease issue of how long the bacterial infection was present.  Thus they held the plaintiff’s expert’s opinion was conclusory and unsupported by competent evidence, affirming the judgment entered in the trial court on summary judgment.

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