Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.
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In Patricia Ross v. Brookdale University Hospital and Medical Center, Decided August 12th, 2008, The Second Department held that where The Court vacated the plaintiff’s note of issue but did not dismiss the case the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have the matter restored to the trial calendar. The Court reasoned as follows;

“Contrary to the defendant’s contention, the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have this matter restored to the trial calendar. Although the Supreme Court purportedly vacated the note of issue pursuant to 22 NYCRR 202.21(e), vacatur under that court rule is warranted only with respect to actions which are not ready for trial or where “it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of [that] section in some material respect” (id.). Here, the note of issue was vacated solely by virtue of the fact that the “[p]laintiff’s attorney fail[ed] to appear 2 times” at the call of the trial calendar. Accordingly, the plaintiff, in moving to restore the action to the trial calendar, was under no obligation to submit an affidavit of merit or to show “the reasons for the acts or omissions which led to the note of issue being vacated,” since such submissions are required only in connection with “[m]otions to reinstate notes of issue vacated pursuant to” § 202 of the Uniform Rules for Trial Courts (22 NYCRR 202.21[f]). Further, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see Kohn v Citigroup, Inc., [*2]29 AD3d 530, 532; Brannigan v Board of Educ. of Levittown Union Free School Dist., 307 AD2d 945; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, it was not dismissed, but rather designated as “inactive.” Since the matter was not dismissed due to the plaintiff’s failure to appear at a compliance conference (see 22 NYCRR 202.27; Dergousova v Long, 37 AD3d 645), or for any other reason, there was no requirement that the plaintiff submit an affidavit of merit or an explanation as to why the case was removed from active status. Hence, the Supreme Court did not err in restoring the action to active status (id.; cf. Lopez v Imperial Delivery Serv., 282 AD2d 190), regardless of the sufficiency of the plaintiff’s affidavit of merit or explanation as to why the matter was marked inactive.”

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In Campuzano v. Board of Education of the City of New York, JJ Lyons Associates, Inc; Decided on August 12, 2008, The First Department reversed the denial of Plaintiffs’ motion for partial summary judgment on Labor Law § 240(1) and granted the motion. The facts as set forth in The opinion of The Court were as follows;

“Plaintiff Joaquin Campuzano and a coworker, while performing asbestos abatement work, were removing a heavy duct from a ceiling by cutting it with an acetylene torch. They started this work on a scaffold, but Campuzano determined it was dangerous to work that way, and decided instead to set up a ladder adjacent to the scaffold. While Campuzano was standing on the ladder and holding the hoses for the torch, a portion of the duct fell, hitting him and the ladder and knocking him to the ground.”

In granting plaintiffs’240(1) Motion The Court held;

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In Tirado V. Elrac Inc., U-Haul Co., Inc. decided August 5, 2008, The First Department reversed the order of the Supreme Court granting U-Haul’s motion for summary judgment and granted plaintiffs cross motion to amend his Complaint and held the amendment related back to the original date of filing of the initial complaint thus avoiding application of The Graves Amendment. The facts were as follows;

” Plaintiff alleges that on November 9, 2004, while a passenger in a car driven by defendant Litzey and owned by defendant Elrac, he sustained injuries when their vehicle was struck by a truck owned by U-Haul Co., Inc. (UHI) and operated by defendant McFarlan. The truck in question bore Arizona registration number AB24019 and was apparently owned by U-Haul Co. of Arizona (UHAZ). ”

“On July 29, 2005, plaintiff filed a verified complaint, naming Elrac, Litzey and McFarlan as defendants. Believing that the rental truck was owned by UHI, plaintiff sued that entity, claiming vicarious liability for the negligent use or operation of the vehicle. UHI was served on August 26, 2005, by service on the New York Secretary of State, and an additional copy was mailed to UHI at 2727 N. Central Ave., Phoenix, Arizona. On October 7, 2005, U-Haul Co. of New York (UHNY) filed an answer in lieu of UHI, presuming it was the intended defendant.”

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Our Partner Robert Conason will be conducting The Direct Examination of Plaintiff’s Automotive Expert at The New York City Chapter of ABOTA Masters in Trial Program on Friday, October 24th. The Program will be held at the New York County Lawyers Association.

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Robert Conason will be speaking at The New York State Trial Lawyers Institute’s renowned Decisions Program on Trial Practice. Our Partner Rhonda Kay prepared the written materials on this subject for the course book which reports on over 100 cases that have come down within the last year in the area of Trial Practice. The New york City program will be held on Friday & Saturday, September 12 & 13, 2008: 9am to 5pm at The BMCC Tribeca Performing Arts Center @ BMCC199 Chambers Street New York City, New York 10007. For more information click here.

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Robert Conason will be participating in The Brooklyn Law School symposium, “The Products Liability Restatement: Was it a Success?,” scheduled for November 13th and 14th, 2008. Bob will be on the panel discussing The Restatement and Design Defect §2(b) on November 13th.

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Our partner Robert Conason will be speaking at the International Institute for Continuing Medical Education, Inc.’s Mount Sinai Update 2008: Breast Imaging. Bob will be speaking as to the plaintiff’s viewpoint on Breast Imaging Malpractice: An Attorney’s Perspective. The program is scheduled for October 13 – 15, 2008. The program will be held at The Marriott Hotel in New York City. Bob will be speaking at 10:30 A.M. on October 15th on Breast Imaging Malpractice and at 11:30 A.M. on Medicolegal Issues. For more information on this program click here.
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From The New York Law Journal, Thursday, July 31, 2008;

Our partner, Ben Rubinowitz, and Evan Torgan, a member of Torgan & Cooper,” write that too often, trial lawyers use demonstrative exhibits only in the one part of the trial during which the exhibit is offered – usually direct examination. Although a strong point can be made during direct, with a good amount of planning and a little bit of creativity, that exhibit can serve to bolster your point throughout the entire trial and, more importantly, serve as your surrogate during the one part of the trial when you are not present – jury deliberations.”

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Our partners Jeffrey Bloom and Richard Steigman have co-authored an article entitled “The Impact of Arons: A Look at the Court of Appeals’ Decision to Allow Ex Parte Interviews of Treating Doctors and Where We Go from Here.” The Article is in The Spring 2008 Edition of Bill Of Particulars published by The New York State Trial Lawyers Institute.

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Our Partner, Ben Rubinowitz, will be a Team Leader at NITA’S Trial Advocacy Program to be held at Hofstra University School of Law from August 8th to 13th. Ben has served as a Team Leader for more than 25 years. This program is an intensive Trial skills program in which NITA’S “learning by doing” method is employed. For more information click here.

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