Appellate Practice Group at BMM Rounds Out Another Year of Successes

December 29, 2016

Lectures and Publications: BMM’s partner in charge of appellate litigation, Robert G. Vizza, was invited to make presentations to the New York City Bar Association on recent changes in the law from the Court of Appeals, and led a panel discussion for the Greater New York Hospital Association for Risk Managers, Patient Safety Officers, and General Counsel of the member hospitals on how to minimize the risk of liability to third-parties when medications are administered that could affect the patient’s ability to drive. In addition, several BMM partners including Clifford A. Bartlett, Jr., Robert G. Vizza, and Robert F. Elliott were invited to contribute chapters to the upcoming Fourth Edition of Medical Malpractice in New York, published by the New York State Bar Association and edited by our own Robert Devine.

May 3, 2016: The Appellate Division, Second Department ruled in favor of the defendants in a general liability matter where the plaintiff was seeking discovery going back eleven years prior to the incident.  Arthur T. McQuillan prepared the successful brief on the appeal on behalf of a defendant contractor.

May 27, 2016: When the judge in Supreme Court Queens County refused to dismiss a case on the merits, Dave C. Zegarelli, a partner in our appellate practice group, successfully appealed the decision.  The Appellate Division, Second Department reversed and ruled in favor of BMM’s client, a janitorial and maintenance services company that did not have any responsibility for the part of the building where plaintiff fell. The appeals court held it was improper for the trial court to hold the defendant in the case for the remainder of the discovery phase on the mere hope or speculation that evidence may be uncovered.

June 28, 2016: On appeal to the Appellate Division, First Department, BMM prevailed on behalf of a hospital and physician where the plaintiff claimed the healthcare providers should have provided an “off-label” use for a prescription medication.  In the trial court, trial partner Kenneth Oliver, obtained a ruling whereby plaintiff’s introduction of the new theory of liability triggered the defendants’ right to make a summary judgment motion on the eve of trial.  After the summary judgment was granted in the Supreme Court, Robert G. Vizza, successfully briefed and argued the appeal.  The court held that the doctors could only be held to the standard of care for the time in question, and refused to permit plaintiff to argue that the treatment would subsequently be made part of the developing state of the art.

October 12, 2016: The trial judge presiding in Supreme Court, Suffolk County would have allowed the plaintiff’s case to go to trial, but the Appellate Division, Second Department reversed, dismissing the case against BMM’s client.  The court held that a step-daughter could not seek to recover damages for lack of parental guidance in a case of alleged wrongful death.  Dave C. Zegarelli wrote the successful brief on behalf of the hospital, and Robert G. Vizza argued the appeal.

November 1, 2016: The Appellate Division, Second Department affirmed the trial court’s dismissal of claims against BMM’s clients, physicians in the Emergency Department at a local hospital, rejecting the theory that the doctors should have re-directed an ambulance to a tertiary care facility.  Trial partner Christopher A. Terzian wrote the successful summary judgment motion, and Robert G. Vizza authored the brief and argued the appeal.

December 20, 2016: The Court of Appeals found in favor of BMM’s clients, thwarting plaintiff’s attempts to get to the state’s highest court, and agreeing with the position argued by Robert G. Vizza in that the plaintiff failed to comply with technical and procedural rules applicable in the Court of Appeals.  Mr. Vizza successfully briefed and argued two appeals to the Appellate Division by the same plaintiff.

December 28, 2016: The Appellate Division, Second Department found in favor of BMM’s client, an electrical contractor, affirming an order granting summary judgment dismissing the complaint and all cross claims in multi-party litigation involving subrogation claims arising from a fire that engulfed three adjacent commercial properties.  Neil C. Mascolo, Jr. wrote the successful summary judgment motion and Robert G. Vizza preserved the win with the brief and oral argument on appeal.