Appellate Practice Successes for 2013

Prevailed (as ghost-writers) on a summary judgment motion to dismissing on waiver of subrogation grounds a $90 million property damage case arising from a fire at a construction site.

Obtained a reversal of the New Jersey trial court’s grant of summary judgment against National Union in a subrogation/coverage action arising out of a catastrophic construction site accident, resulting in a subrogation recovery of $5 million plus an additional recovery of interest and attorney’s fees in excess of $2 million.

Successful in reversing trial court’s grant of summary judgment against carrier in a coverage action seeking over $16 million for property damage.

Prevailed on appeal and subsequent motions on a $33 million subrogation claim by virtue of settlement with the NYSIF for $31 million.

Successfully reversed on appeal to the U.S. Court of Appeals for the Third Circuit the district court’s interpretation of a consequential damage waiver clause, resulting in vacatur of a judgment against insured for over $12.7 million.

Obtained new trial on liability on behalf of Ford Motor Credit following a $44 million verdict against it in a catastrophic personal injury (quadriplegia) action. Action later settled for a fractional amount.

Prevailed on post-trial motion and appeal for a substantial remittitur of a $35.4 million pain and suffering award to $6 million.

Won on post-trial motion vacatur of a $20 million verdict and a new trial on liability and damages and affirmance on appeal.

In a product liability action against a bus manufacturer arising out of a bus rollover accident and resulting in a damages verdict in excess of $30 million, we won a remittitur of over $20 million from the trial court. We then successfully obtained a complete reversal of the judgment and dismissal of the complaint on appeal to New York’s intermediate appellate court, which was later partially reinstated by the New York Court of Appeals. But, upon remand, we once again successfully obtained a new trial.

Prevailed on appeal in vacating the money judgment and obtaining a new trial on liability and damages in a sex discrimination claim brought under New Jersey Law Against Discrimination.

On appeal to the Fourth Department, Timothy R. Capowski obtained a retrial of a VTL § 388 liability trial involving a quadriplegic based on the trial court’s improper preclusion of plaintiff’s admissions to having been the driver of the vehicle, which would preclude liability against the defendant auto leasing company.

In the Second Department, Timothy R. Capowski obtained a reduction of over half million dollars to a future lost earnings award based on unsupported assumptions and projections by plaintiff’s economist.

Also in the Second Department, Christopher Simone won dismissal of a medical malpractice action based on the motion court’s abuse of discretion in granting plaintiff an extension to serve the complaint beyond the 120- day statutory service period absent any grounds for good cause or interests of justice relief as well as affirmance of an order granting defendants summary judgment dismissal of an action alleging arm injury to an infant plaintiff from intravenous administration following birth.

In the First Department Christopher Simone won affirmance of an order granting summary judgment dismissal of a complaint alleging a delay in diagnosing Stage IV lung cancer in the 47-year old decedent.

Also in the First Department, Robert M. Ortiz obtained an affirmance of an over $1 million reduction in a lost earnings award because plaintiff’s economist relied on assumptions lacking record support and unduly inflated his projections.

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