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Melissa Surinski, individually and as parent and natural guardian of Ava Surinski, minor v. Toms River Fitness for Women, Inc., d/b/a Toms River Fitness & Aquatic Center

Client: Toms River Fitness for Women, Inc., d/b/a Toms River Fitness & Aquatic Center

Court: Superior Court of New Jersey, Ocean County

Brief Attorney: Edward F. Kuhn, III, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff, Ava Surinski (minor) opened a door to the locker room at the client’s gym after getting out of the pool. The door went over her foot causing a cut requiring stiches. Plaintiff alleged the door was in a defective condition as the removal of slip-proof mats around the pool allowed a large gap between the door and floor to exists that was large enough to go over Plaintiff’s foot causing the injury.

We obtained an engineering expert who found nothing defective with the design, installation or operation of the door. Plaintiff did not have an expert. We filed a motion for summary judgment arguing that Plaintiff has no evidence of negligence as they cannot prove that there was anything defective with the door. The judge granted our motion and barred Plaintiff from making any argument during trial that the door in question was defective. However, the judge denied a complete dismissal of Plaintiff’s Complaint on other grounds.

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John Bozzelli vs. ExxonMobil

Client: ExxonMobil

Court: Workers’ Compensation Court

Trial Attorney:  Michelle L. Duffield, Esq.

Brief Attorney:  Michelle L. Duffield, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

Petitioner owned a roofing company, Brocco Roofing, that regularly performed work for ExxonMobil. On April 7, 2014, petitioner allegedly sustained an injury to his right knee and neck. He filed a workers’ compensation claim against ExxonMobil alleging that he was an employee of ExxonMobil, or in the alternative, was a subcontractor for ExxonMobil acting as a general contractor. From the outset, we denied the claim and took a firm no pay position. Petitioner submitted a settlement demand of 26 ½% permanent partial disability apportioned 22 ½% for the petitioner’s right leg and 15% for the cervical spine plus six months of temporary benefits for a total of $63,516.00 plus approximately $9,500.00 in attorney’s fees associated with the permanency and temporary benefits. After a full Trial, petitioner’s claim was dismissed with prejudice for failure to establish either an employer/employee relationship or a general contractor/subcontractor relationship.

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Esperanza Perez v. Table Run Estates, Inc. et al, 2021 WL 329300, 2021 N.Y.Slip Op. 00533

Client: Table Run Estates, Inc. and Condetta Brown Desgoutte

Court: New York Appellate Division, First Department

Trial Attorney:  Stephen J. Alexander, Esq.

Brief Attorney:  Alyson L. Knipe, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

The New York Appellate Division First Department affirmed a lower court’s decision to vacate a $2.2 million dollar default judgment that was entered against Defendants Table Run Estates and Condetta Desgouttee when their answer was stricken based on their prior attorney’s failure to appear for court conferences and depositions.

The First Department held that an attorney who was suspended from and subsequently disbarred for neglecting legal matters and who failed to communicate with clients served as a reasonable excuse under CPLR 5015(a)(1) to vacate the default.  The court also found that plaintiff offered no evidence that she incurred any prejudice.  Therefore, the Appellate Division concluded that defendant’s motion to vacate the judgment was properly granted.

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L.B. o/b/o B.C. v. Washington Township BOE (Agency Dkt. #103-5/20) (OAL Dkt. #EDU 07411-20)

Client: Washington Township Board of Education

Court: Commissioner of Education

Brief Attorney:  Lauren E. Tedesco-Dallas, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Petitioner appealed the determination of the respondent Board that B.C. has not resided within the Washington Township School District since July 6, 2019 and is therefore not eligible to receive a free public education in Washington Township Public Schools. The Board filed a motion for summary decision, which petitioner failed to answer, and sought reimbursement of tuition for the period of B.C.’s ineligible attendance.

The Administrative Law Judge (ALJ) found, inter alia, that: there are no material facts at issue in this case, and the matter is ripe for summary decision.

Upon review of the record, the Commissioner of Education concurred with the ALJ’s findings and conclusion. The Initial Decision was adopted as the final decision, and the petitioner was ordered to reimburse the Board for tuition in the amount of $18,077, plus $100.43 for every school day during the 2020-2021 school year that the student attended Washington Township schools. The petition was dismissed.

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DiMeo v. Unidentified Insurance Company

Client: Unidentified Insurance Company

Court: Superior Court of New Jersey, Atlantic County

Brief Attorney:  Charles F. Holmgren, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiffs claimed they purchased an umbrella policy containing $1 Million in Underinsured Motorists (UIM) coverage and attempted to reform the actual policy they purchased, a $1 Million liability umbrella policy, to what they believed they had. After an auto accident, the plaintiffs sued their insurance company claiming: 1) the $1 Million liability umbrella policy should be reformed to a $1 Million UIM policy, 2) personal injury damages from the auto accident covered by the reformed UIM policy, and 3) bad faith in failing to pay their initial claims for UIM benefits covered by the reformed UIM policy.

In the Summer of 2020, the parties engaged in a socially-distanced, one-day bench trial on the initial issue of contract reformation. Without a direct defense witness as to any statements the plaintiffs made to the insurer, counsel was able to secure a verdict in favor of the insurance company denying the plaintiffs’ claim to reform the umbrella policy to include $1 Million in UIM. The Court determined that the plaintiffs could not meet their burden of proving fraud or unconscionable conduct by clear and convincing evidence, stating that “[e]ven if Plaintiffs’ burden was only a preponderance of the evidence, the claim for reformation would still fail.”

Importantly, because the plaintiffs could not reform the umbrella policy to include $1 Million in UIM coverage, the other two actions – the personal injury claim for UIM benefits and the claim for bad faith – were rendered moot because the court determined the plaintiffs did not have an umbrella policy permitting $1 Million of UIM coverage.

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Laura Battipaglia v. KIPP: Cooper Norcross Academy, CAM-L-2796-18

Client: KIPP: Cooper Norcross Academy Charter School

Court: New Jersey Superior Court, Law Division, Camden County

Brief Attorney:  Cameron R. Morgan, Esq.

**Results may vary depending on your particular facts and legal circumstances**

In a disparate treatment theory case brought under the New Jersey Law Against Discrimination (NJLAD), a teacher/learning specialist at a charter school alleged gender, pregnancy, and disability discrimination after she was non-renewed from her position after taking an FMLA leave and extended disability leave due to her high-risk pregnancy.  The teacher claimed that her employment contract was non-renewed based on her intention to start a family within the first few years of her employment.

In advance of trial, the court granted summary judgment on behalf of the Defendant charter school and dismissed the claims, finding that (1) the Plaintiff failed to set forth sufficient evidence from which a reasonable jury could conclude she had satisfied the prima facie elements of discriminatory intent on the part of the school underlying the non-renewal, or that she was performing the functions of her position at a level that met the school’s legitimate expectations; and (2) the charter school had numerous legitimate, non-discriminatory reasons for non-renewing her employment, including below proficient evaluation scores, improper use of “time-outs,” and poor classroom management skills.

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Wirth v. Hoboken BOE

Client: Hoboken BOE

Court:  Workers’ Compensation

Trial Attorney:  Andrea L. Schlafer, Esq.

Brief Attorney:  Andrea L. Schlafer, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The Petitioner filed a Claim Petition alleging her injury to the lumbar spine necessitating a three level fusion occurred in the course and scope of employment. Respondent, through counsel, denied the claim as arising out of employment as the petitioner was engaging in a fitness club when the injury occurred. Furthermore, it was Respondent’s position that the activity engaged in whether the incident occurred was “social and/or recreational” thus not compensable. After a lengthy trial,  the Judge of Compensation found that the accident did not arise out of employment and dismissed the claim with prejudice.

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Monroe Township Board of Education v. J.A. and J.A. o/b/o J.A. (EDS 04821-20)

Client: Monroe Township Board of Education

Court: Office of Administrative Law

Trial Attorney:  Sanmathi (Sanu) Dev, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The Board filed a due process petition seeking to deny the parents’ request for an independent auditory evoked potential evaluation of a student diagnosed with autism. The parents, through counsel, requested the District conduct the test, at the District’s expense, even though the District never observed the student having any auditory issues in the thirty-two evaluations conducted of the student over a nine-year period. The ALJ ruled in the Board’s favor and denied the request and also determined that the parents’ request for the evaluation was unjustified and frivolous.

To view the case, please click here.

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Ashley Metcalf v. AirBnb, EPKY 7395 LLC and Sofia Krimizi

Client: AirBnb

Court: New York Supreme Court, County of Kings

Brief Attorney:  Alyson L. Knipe, Esq. on the brief and oral argument by Stephen J. Alexander, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff commenced an action for personal injuries allegedly sustained as a result of a window slamming down on plaintiff’s hand while staying at an AirBnb accommodation booked through the AirBnb travel platform.

On May 18, 2020, Judge Ottley issued a decision granting summary judgment in favor of AirBnb. The court held that AirBnb did not owe plaintiff a duty of care. Additionally, the court found that the apartment listing on the AirBnb website for a fee does not meet the criteria of a “launching of a harm” under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002). Lastly, the court further found that AirBnb lacked constructive notice of the window’s condition.

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Barbara Bergman v. Bella Notte Restaurant, 191-219 Mineola LLC, and LI Parking Valet Inc.

Client: LI Parking

Court: New York Supreme Court, County of Nassau

Trial Attorney:  Stephen J. Alexander, Esq.

Brief Attorney:  Alyson L. Knipe, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff commenced an action for personal injuries allegedly sustained when she tripped and fell over a metal valet parking sign in a restaurant’s parking lot.

In the May 13, 2020 Judge Mahon granted summary judgment to defendant LI Parking.  Judge Mahon held that LI Parking did not launch a force or instrument of harm pursuant to Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002). The Court found that LI Parking established, prima facie, that it did not create or exacerbate a dangerous condition by its mere placement of the sign at the subject location.  At most, LI Parking furnished the occasion for the accident, but it was not sufficient to constitute the creation of an unreasonable risk of harm to others.

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