Notable Recent Results

April 2012 - LCBF CLIENT OBTAINS FAVORABLE RULING FROM 4TH CIRCUIT IN MULTI-MILLION CONTRACT DISPUTE: The Fourth Circuit Court of Appeals has issued an opinion affirming summary judgment on behalf of our client Freddie Mac that it owed Doral Bank PR no more than $124,588 in mortgage servicing fees, rejecting Doral's claims for damages exceeding $10.87 million. The majority opinion held that the contract clause Doral tried to rely upon was an unenforceable liquidated damage clause, rather than an "alternative performance contract," as Doral attempted to characterize it. In mid 2008, Freddie Mac had informed Doral that it would not be transferring more than 45,000 mortgage loans to Doral for interim servicing. In accordance with the parties' agreement, Freddie Mac offered to pay $124,588 representing the costs it understood Doral had incurred to prepare for the potential transfer of these loans. Without documenting additional actual costs, Doral rejected the offer and demanded well over $10 million. The LCBF team was headed by Bill Ballaine and Mark Landman.

March 2012 - CALLED IN AS TRIAL COUNSEL, LCBF OBTAINS SETTLEMENT OF CLAIMS ARISING FROM TRAGIC CROSSING ACCIDENT: As trial approached, LCBF was retained as trial counsel to defend a railroad in a 2010 accident at a crossing in University Heights, Illinois, where the warning signals had been inadvertently deactivated by maintenance workers, resulting in the untimely death of a 26-year old ballet instructor and dancer. After a full day of trial in Cook County Circuit Court, the case was settled for $6 million. The LCBF team was headed by Mark Landman.

February 2012 - LCBF OBTAINS NINTH CIRCUIT REVERSAL OF REMAND: Ruling on several important issues of federal civil procedure, the court in Mendoza v. Federal National Mortgage Ass'n held that (1) it had subject matter jurisdiction to review a sua sponte remand order because the remand was not based upon a lack of subject matter jurisdiction; (2) the district court had no authority to remand a case more than 30 days after removal if the remand was not based upon a lack of subject matter jurisdiction; (3) Freddie Mac had not waived its right to remove by filing an unlawful detainer action in state court with regard to the same property at issue in the removed case, since it dismissed that action following removal; and (4) the district court lacks authority to remand a case at any time based upon a "procedural defect" and a waiver is a procedural defect. The LCBF team, which was retained as oral argument approached, was headed by Mark Landman.

December 2011 - LCBF OBTAINS DISMISSAL OF MULTI-MILLION DOLLAR CLAIMS ARISING FROM SOFTWARE CONTRACT: In Adeptech Systems, Inc. v. Federal Home Loan Mortgage Corp., 2011 WL 6820184 (E.D.Va.), LCBF successfully moved for summary judgment dismissing plaintiff's breach of contract, civil business conspiracy, and tortious interference claims against Freddie Mac in the United States District Court for the Eastern District of Virginia. Plaintiff alleged that Freddie Mac acted improperly by awarding a contract for certain software products and services to another company, not plaintiff. Plaintiff was seeking damages in excess of $15 million. The LCBF team was headed by Jerry Cuomo and Mark Landman.

November 2011 – LCBF OBTAINS DISMISSAL OF MULTI-MILLION DOLLAR MOLD CLAIM BY BIANCA JAGGER:  In Bianca Jagger v. Katz Park Avenue, the Appellate Term, First Department reversed the trial court and threw out plaintiff's bodily injury claims.  Plaintiff, the ex-wife of Mick Jagger, sought in excess of $20 million in damages for injuries allegedly sustained as a consequence of water damage and resultant mold growth in her rent-stabilized Park Avenue apartment.  The court accepted LCBF's arguments that, although plaintiff's experts inspected the apartment on multiple occasions, they never collected reliable evidence that the air in the apartment contained excessive (or hazardous) amounts of mold.  The court held:  "[n]otably, plaintiff's environmental expert merely collected indoor air samples on a single day, a showing insufficiently reliable to demonstrate the level of toxicity, if any, in plaintiff's apartment."  As there was no admissible evidence of any injurious exposure, the court held that  plaintiff's bodily injury claims should have been dismissed.  LCBF also argued that plaintiff's causation expert's opinions -- that mold was capable of, or in fact have caused, plaintiff's alleged injuries -- were inadmissible junk science.  Given the court's findings regarding the lack of a valid evidentiary showing of an injurious exposure, it did not address the medical causation arguments.  The LCBF team was headed by Jed Davies and Cristi Fusaro.

November 2011 – SUCCESSFUL FRYE HEARING ABORTS TRIAL OF MULTI-MILLION DOLLAR CASE:  In Sadek v. Greyhound, venued in New York County, LCBF prevailed at a Frye hearing during trial, precluding plaintiff from proceeding to the jury with respect to his claims that he suffered a stroke as a result of an accident involving a Greyhound bus.  Plaintiff, who also alleged orthopedic injuries, shoulder surgery and recommended back surgery, had demanded $10 million to settle case, including a future wage loss of $5 million.  After medical testimony by several neurologists, and arguments by counsel, the court ruled that plaintiff's theory of medical causation (that plaintiff suffered a stroke due to the stress of the accident/spike in high blood pressure and the contortion of his body caused by the impact) was not generally accepted in the medical community of neurology.  It also ruled that plaintiff's theories of causation were new theories, presented after a jury had already been selected and thus, were prejudicial to the defense.  As a result of LCBF's success at the Frye hearing, plaintiff dismissed his orthopedic claims and is pursuing an appeal on the court's ruling precluding the stroke.  The LCBF team was headed by Diane Ruccia and Natalie Garcia.

November 2011 – LCBF WINS COVERAGE RULING FROM DELAWARE COURT:  In Consolidated Rail Corp. v. Liberty Mut. Ins. Co., a dispute between insurers regarding coverage for expenses incurred by a railroad in defending wrongful death actions arising from two automobile-train collisions that occurred at a railroad crossing during the course of a road construction project, the Delaware Superior Court held, based on the “other insurance” clauses in the respective policies, that LCBF’s client, a force account insurer of the railroad, was entitled to recover the railroad’s entire defense costs and pre-judgment interest thereon, in excess of $1.2 million, from the liability insurer of the general contractor whose policy covered the railroad as an additional insured.

September 2011 – In Cervantes v. Countrywide Home Loans, Inc., 2011 WL 3911031 (9th Cir. Sept. 7, 2011), the Ninth Circuit affirmed the dismissal of a putative class action challenging foreclosure procedures for home loans listing the Mortgage Electronic Recording Service (MERS) as the beneficiary on deeds of trust.  This was an appeal from the district court in Arizona handling the MDL proceedings (In Re MERS MDL Litigation).  LCBF took the lead in drafting the appellate brief on behalf of the MERS “shareholder defendants,” including firm client Federal Home Loan Mortgage Corp. ("Freddie Mac").  Mark Landman heads the team handling the matter.

August 2011 – In Fox v. SLS Residential, Inc., 2011 Slip Op. 06214, 928 N.Y.S. 2d 317 (2d Dep’t 2011), LCBF represented a substance abuse and mental health facility that had been treating a voluntary patient who, after leaving defendant’s facility on a pass, brutally and randomly murdered his mother's neighbor.  The incident was reported extensively in the media.  In moving to dismiss the complaint, LCBF argued that the facility did not owe a duty to the general public.  On appeal, the Second Department dismissed the medical malpractice claims, holding that “regardless of any sense of outrage” evoked by the patient’s “heinous actions,” a doctor treating a mental patient does not undertake any duty to the public at large.  This Order left standing, however, plaintiff’s separate claim that defendants had negligently failed to exercise reasonable control over the conduct of their voluntary patient, an important legal issue that could well benefit from New York Court of Appeals review.  The LCBF team was led by Bill Ballaine, who argued the appeal, and Ron Joseph.

August 2011 – In Pinsky v. Amtrak, venued in the Philadelphia Court of Common Pleas, LCBF obtained summary judgment in a case where plaintiff (Amtrak's former medical director) asserted claims against Amtrak for negligent infliction of emotional distress under the FELA arising from allegations of workplace harassment and a verbal altercation that culminated in the termination of the plaintiff.  LCBF successfully argued that the plaintiff's claims were not recoverable under the FELA.  Plaintiff claimed emotional injuries and physical manifestations of same, but LCBF demonstrated that plaintiff had failed to establish that he was subject to an immediate risk of physical harm, as required under the FELA.  The LCBF team was headed by Mark Landman and Yuri Brunetti.

June 2011 – In Stowe v. Amtrak, 2011 WL 2516939 (E.D.N.Y. 2011), LCBF obtained a ruling denying the plaintiff’s post-trial motions following a defense verdict from a jury in an FELA case tried in Brooklyn.  The 40-year old plaintiff cash clerk alleged that a safe door fell on top of her causing multiple injuries to her neck, spine, chest and left shoulder.  Plaintiff had surgery and extensive medical treatment for several years leading up to trial.  She alleged orthopedic injuries, PTSD, and depression.  Despite Amtrak’s concession, the jury returned a defense verdict.  Mark Landman tried the case on behalf of Amtrak.  Mark and Gerry Ford handled the post-trial motions.

March 2011 – LCBF client Crum & Forster reached a settlement with the class plaintiffs in the MDL Insurance Brokerage Litigation venued in New Jersey, paying half or less of what each of the other settling insurers agreed to contribute.  The prior August, the Third Circuit affirmed the district court’s dismissal of the Sherman Act and RICO claims that had been brought against Crum & Forster.  See In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300 (3rd Cir. 2010).  The LCBF team was headed by Lou Corsi and Steve Jacobs.

February 2011 – LCBF successfully concluded a matter in which it represented an insurer in a London arbitration involving a very large pharmaceutical claim.  The LCBF team was headed by Lou Corsi.

January 2011 – In Burns v. D&B Acoustical, et al., venued in Schenectady County, LCBF successfully defeated an asbestos supplier's claim for conditional common law indemnification against our client, an asbestos product manufacturer.  We argued that such conditional decisions are premature and should be left to juries to decide.  We also argued that the imputed "knowledge" of an asbestos supplier and product manufacturer is distinct and, further, that the asbestos supplier failed to provide the Court with any evidence that it did not or could not have known about the dangers of asbestos.  This decision is significant because there has been a recent surge in such motions by asbestos supplier defendants.  If such motions were successful, asbestos product manufacturers would be saddled with indemnifying asbestos suppliers at the pre-trial stage of litigation.  The LCBF team was headed by Christopher Kozak.

December 2010 – In Dahar v. Holland Ladder & Mfg., 79 A.D.3d 1631 (appeal pending in NY Court of Appeals), the Fourth Department upheld our client’s right to summary judgment dismissing plaintiff’s Labor Law claims, finding that the strict liability requirements of Labor Law §240 did not apply to plaintiff’s accident, which occurred while he was allegedly “cleaning” a fabricated wall module beam that was being prepared by the manufacturer for shipment to its purchaser.  The Appellate Division relied upon case law instructing that the strict liability requirements of §240 do not apply to a worker who is engaged in a normal manufacturing process at a factory building.  The case is currently awaiting further review by the Court of Appeals.  Bill Ballaine, who argued the Fourth Department appeal, and Jim Woolsey have been leading the LCBF team in this matter.

December 2010 – In Vogel v. Laidlaw, LCBF obtained a defense verdict from a Bergen County, New Jersey jury in a serious personal injury case for a student transportation company and two of its employees.  Plaintiff, a severely autistic minor, was allegedly physically and verbally abused by the insured's bus driver and bus aide, resulting in severe PTSD and worsening of his autism.  Plaintiff called numerous experts at trial, including a neurologist, neuro-psychologist, and life care planner who boarded $4.8 million in future costs.  The case was litigated for five years and plaintiff never lowered her demand  below $5 million.  The LCBF team was headed by Joseph Tomaino and Diane Ruccia.

November 2010 – In Nostrom v. A.W. Chesterton, 15 N.Y.3d 502 (2010), aff'g, 59 A.D.3d 159 (1st Dep't 2009), LCBF won an affirmance from the Court of Appeals of an Order dismissing the asbestos personal injury claims brought on behalf of a former construction worker against our client, Bechtel.  The Court of Appeals rejected plaintiff's attempt to hold Bechtel vicariously liable as the alleged general contractor under Labor Law §241(6) based on purported violations of Part 12 of the Industrial Code, which contains regulations relating to "dangerous air contaminants."  Resolving a split of authorities in the Appellate Division, the Court of Appeals held that a §241(6) strict liability claim against owners or general contractors must be based upon alleged violations of regulations found in Part 23. LCBF successfully argued, in part, that any attempt by plaintiffs to rely upon regulations outside Part 23, if successful, would retroactively engineer a drastic expansion of the statutory non-delegable duty of owners and contractors to workers alleging latent injuries due to asbestos exposure.  The LCBF team was headed by Bill Ballaine, who argued the appeals, Mark Landman and Christopher Kozak.

November 2010 – In Lennon v. Metro North Commuter Railroad, venued in Supreme Court, New York County, plaintiff pursued a FELA claim, claiming that while walking between cars of a moving train, her arm became trapped in a door, causing reflex sympathetic dystrophy that prevented her from returning to work.  She underwent implantation of a spinal cord stimulator for pain alleviation and also was prescribed a variety of pain killers, including opiates.  LCBF was successful in disqualifying plaintiff’s liability expert, Richard Bell, in the Frye hearing during trial.  Notwithstanding that plaintiff had not returned to work for approximately six years, the jury found that she did not suffer any lost wages.  Plaintiff’s demand was $2,000,000.  The jury returned a net verdict of $226,000.  The LCBF team was headed by Ron Joseph.

October 2010 –In In re Beacon Associates Litigation, 745 F. Supp. 2d 386 (S.D.N.Y. 2010), LCBF obtained a dismissal of an array of class and derivative claims under federal and state law against an auditor of a so-called Madoff feeder fund.  The firm is currently defending related claims in three New York state court actions.  The LCBF team is headed by Lou Corsi and Steve Jacobs.

August 2010 – In Nettles v. SUNY, LCBF obtained a directed verdict in the Eastern District New York, where plaintiff alleged race discrimination and retaliation pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and New York Executive Law §§ 290, et seq., (“New York State Human Rights Law”) against an employee of the Research Foundation of State University of New York and others.  Plaintiff alleged that the Research Foundation employee failed to investigate and respond to plaintiff’s complaint of discriminatory treatment in the workplace.  Plaintiff further alleged that the employee retaliated against him for filing a charge of discrimination with the State’s Division of Human Rights.  After the conclusion of all evidence to the jury, Judge Leonard D. Wexler heard directed verdict arguments and dismissed all claims.  The LCBF team was headed by Rebecca Embry.

April 2010 – LCBF obtained a defense verdict in Edmonson v. 141 Realty LLC, a lead paint case involving an infant who claimed brain injury and academic compromise in consequence of a blood lead level (“BLL”) of 22 ug/dL at age 5 and BLLs between 5 – 8 ug/dL beginning at age 2.  We questioned the reliability of plaintiff’s mother’s testimony regarding peeling paint conditions and argued that lead paint is not hazardous per se and that the surfaces identified as lead positive by the Department of Health did not present an actual hazard.  A unanimous Kings County jury agreed that there were no hazardous lead-based paint conditions present.  The LCBF team was headed by Melanie Suhrada.

April 2010 – In Benkendorf v. Fox Hills Condominium Association, LCBF obtained a favorable result following a lengthy mediation of an action involving the construction of a large condominium complex including fifteen residential buildings, a community clubhouse and several out-buildings.  Plaintiffs alleged that substantial damage was caused to the buildings due to, among other things, the improper design and construction of the exterior walls, as well as the use of a defective siding/facade product.  LCBF represented the EIFS manufacturer, one of over 60 defendants, all with separate counsel.  The LCBF team was headed by Roxanna Campbell.

March 2010 – In Cevasco v. Amtrak, 606 F. Supp. 2d 401 (S.D.N.Y. 2010), LCBF successfully handled five actions in the Southern District of New York arising out of a construction accident in which a high rail crane rolled approximately 4,000 feet and struck five workers at another construction site.  The workers sustained significant injuries including a foot amputation, de-gloved leg, brain injuries, hearing loss, fractured clavicle, a collapsed lung, and spinal, shoulder and knee injuries requiring a cervical decompression with fusion, laminectomy with fusion and AC joint resection.  The court ruled that, regardless whether Amtrak had been negligent in operating or maintaining the crane, Amtrak’s co-defendant contractors were contractually responsible for defending and indemnifying Amtrak.  All of the matters were thereafter settled without any monetary contribution from Amtrak.  The LCBF team was headed by Bill Ballaine and Ron Joseph.

February 2010 – In Sanders v. Grenadier Realty, Inc., 367 Fed. Appx. 172 (2d Cir. 2010), the Second Circuit upheld the district court’s order dismissing the tenant plaintiffs’ claims that our clients had violated plaintiffs’ rights under the Fair Housing Act and the First Amendment by refusing to grant the tenants rent subsidies.  The LCBF team was led by Bill Ballaine, who argued the appeal, and Sophia Ree.

November 2009 – In Archstone v. Tocci Building Corporation of New Jersey, the Commercial Division of the Supreme Court, Nassau County issued a lengthy decision denying plaintiffs' claims that a certain forensic architect’s reports were privileged, noting that plaintiffs submitted sworn testimony that “smacks of revisionist history.” LCBF represents the general contractor in this suit brought by the developer/owner of a residential community in Westbury, Long Island.  The site consists of twenty residential buildings, a community clubhouse and several out-buildings, which were constructed at a cost of approximately $40 million.  Plaintiff alleges damages in excess of $70 million.  The LCBF team is headed by Dan Moretti and Jed Davies.

October 2009 – In Montgomery v. Cheshire Harding, 2009 WL 332026 (Vt. Supr. 2009), LCBF won a final appeal resulting from a Vermont action where the plaintiff was run over by a forklift and suffered catastrophic injuries, including the loss of his right leg at the hip.  LCBF was brought in to try the case.  Plaintiff’s settlement demand before trial was $25 million.  After obtaining a defense verdict at trial in the Vermont federal court, LCBF successfully handled plaintiff’s post-trial motions and a collateral appeal to the Vermont Supreme Court.  The LCBF trial team was headed by John Bonventre and the appellate team by Gerry Ford.

May 2009 – In McGuinn v. LifeCell Corp., LCBF obtained a defense verdict dismissing an executive officer's discrimination (race and gender) claims following trial and post-trial submissions in this binding arbitration.  The LCBF team was headed by Joseph Tomaino.

April 2009 – In Kerusa Co. LLC v. W10Z/515 Real Estate Limited Partnership, 12 N.Y.3d 236 (2009), a seminal case interpreting the Martin Act, LCBF obtained dismissal of all fraud claims asserted against the condominium sponsor and developers by the wealthy owner of a luxury condominium apartment in a newly-constructed Park Avenue high-rise building, which allegedly had construction defects.  The Court of Appeals held that because the NY Attorney General bears sole responsibility for implementing and enforcing Martin Act requirements relating to the purchase and sale of security interests in condominium apartments, a condominium apartment purchaser may not pursue a claim for common-law fraud against the building's sponsor when the fraud is predicated solely on alleged material omissions from offering plan amendments mandated by the Martin Act and the Attorney General's implementing regulations.  The LCBF team was headed by Bill Ballaine, who argued the case, and Jed Davies.

March 2009 – In Hepburn v. LIRR, venued in the Eastern District of New York, LCBF obtained a defense verdict for the LIRR in a FELA matter, where a former conductor alleged head, neck and throat cancer from second-hand tobacco smoke exposure ("ETS") while he was a conductor on "smoking trains."  Had plaintiff's cause of action been successful, LIRR and other railroad defendants would have been exposed to significant future liability for ETS claims by former railroad employees and passengers.  The LCBF team was headed by John Bonventre and Roxanna Campbell.

November 2008 – LCBF was retained to represent a major creditor in the Lehman bankruptcy, the largest bankruptcy in history, pending in the SDNY Bankruptcy Court.  LCBF's team is led by Sophia Ree and Mark Landman.