LITIGATION PRACTICE While our practice in health care and corporate law has grown, the roots of the firm are in the courtroom, with combined experience of over 130 years. As experienced litigators, we recognize that the courtroom is often the least desirable place to solve disputes. We are experienced in successfully negotiating the resolution of disputes and in the use of various forms of alternative dispute resolution. Sometimes resort to the courts cannot be avoided. Under those circumstances, we offer trial and appellate experience that is deep and varied. We have a proven track record earned over many years in both state and federal courts and before administrative agencies. Listed below is a summary of some of our litigation practice areas. • General Business Litigation • Personal Injury Defense • Product Liability • Vehicle and Highway Accidents • Construction Litigation • Labor and Employment Litigation • Defense of Licensed Professionals • Creditors’ Rights Litigation • Securities Litigation • Environmental Litigation General Business Litigation We have represented business clients in commercial contract and real estate disputes, enforcement of restrictive covenants, shareholder and partnership disputes, New York Lemon Law claims, employment discrimination and harassment claims, breach of fiduciary duty actions, and claims arising under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The following examples illustrate the breadth of our litigation experience: • New York’s unique program for subsidized excess medical malpractice insurance (Hospital Excess Liability Pool) generated a series of lawsuits by health insurers challenging a hospital bill “add-on” which financed the program. We were retained by a leading excess medical malpractice insurance carrier to defend the constitutionality of the program and to oppose the health insurers’ claim for a $170 million refund of premiums. We secured favorable appellate court rulings which, in combination with legislative action, resulted in dismissal of the health insurers’ lawsuits. • We were retained to defend the controlling faction of a family-owned manufacturing business against a suit by minority shareholders seeking to force transfer of controlling shares. The dispute turned upon interpretation of numerous shareholder agreements and legal principles affecting corporate governance, stock appraisal, powers of attorney and testamentary instruments. Extensive pre-trial proceedings led to a courthouse settlement under which our clients retained control of the business and the minority group relinquished most of its holdings. • After construction for a multimillion-dollar expansion of a large shopping center had begun, the sponsor of the project was faced with an easement claim which, if successful, would have halted construction. We defeated the effort to stop the expansion and eventually secured a complete dismissal of the lawsuit. • When a large real estate investment trust was faced with significant empty space in its shopping center due to the bankruptcy of a chain store subtenant, we were able to secure a seven-figure buyout of the lease from the original tenant in the space, even though amendments had been made to the subtenant’s lease without the original tenant’s knowledge or consent. • A national provider of home health care was unable to locate nurses to staff a difficult-to-care-for Medicaid recipient and was faced with regulatory sanctions. We were able to establish that it was the local Department of Social Services, not our client, that was responsible for locating and paying for nurses to care for the Medicaid recipient, and no sanctions were imposed upon our client. • A bookstore was looking to secure, through the New York Freedom of Information Law, records from a state university regarding the texts and course materials that students were required to buy for their classes at the university. We established the appellate precedent that the university was required to disclose these records to our bookstore client. To Top Personal Injury Defense We offer legal defense to a select clientele of specialty insurers and self-insured businesses in a broad array of personal injury cases. We invest the same resources and attention to detail in handling defense cases that we do for all of our other litigation files. We also understand that effective communication and responsiveness is an indispensable element of lawyering in general, and of a defense practice in particular. We believe that effective trial preparation requires the “hands-on” participation of counsel from the start. Evidence must be gathered, assessed and preserved as quickly as possible, and witnesses must be immediately identified. Equally important is identifying techniques to explain an accident to the jury through visual/graphic presentations and realistic courtroom demonstrations. We are experienced in evaluating accidents and identifying the professional resources needed for a successful litigation strategy. The following are a few examples of our personal injury defense engagements: • We serve as New York defense counsel and court-appointed liaison counsel in over one thousand asbestos cases pending in upstate New York. • We serve as defense counsel to a national self-insured risk trust that represents numerous religious institutions throughout the upstate and Hudson Valley regions. • We serve as counsel in an array of defense matters referred by nationally known independent adjusting firms and third-party administrators. • We served as counsel to a national home improvement chain in a variety of defense engagements ranging from slip-and-fall cases to product liability cases. In one case, our investigation of the plaintiff’s medical history revealed that he had concealed a prior back injury. Our pre-trial motion for dismissal and sanctions was granted, and the plaintiff was required to pay all attorneys’ fees incurred by our client. • As regional defense counsel to a self-insured manufacturer, we have defended a variety of personal injury claims brought by contractors’ employees under New York’s strict liability labor laws. In nearly all cases, the claims against our client were resolved by the filing of a third-party action against the contractor-employer in which we obtained common law contribution and indemnification on behalf of our client. To Top Product Liability A significant portion of our litigation practice is devoted to product liability cases. These engagements require immediate and direct involvement of counsel. Our attorneys know they must become thoroughly versed in the design and manufacture of the challenged product. While the assistance of qualified experts is both helpful and essential, it cannot substitute for the trial attorney’s mastery of technical issues. Our technical experience in this field ranges from handling an engagement involving a small and seemingly simple bottle cap “explosion” to highly complex events such as the failure of a post-tensioned concrete roof system, a faulty cofferdam, a catastrophic bridge collapse, the failure of a hydraulic crane boom, a munitions plant explosion, compressed gas explosions, and accidents caused by defective acetylene cylinders, defective household appliances, flammable fabrics, and alleged automotive defects. Descriptions of some of these cases are summarized below. Munitions Plant Explosion: We were engaged to defend a major defense contractor in a case arising from accidental firing of several hundred military detonators during x-ray inspection at a supplier's factory in Ulster County, New York. Our client purchased detonators from the firm for use as components in bomb fuses manufactured for the Army and Navy. A severely injured worker charged that the accident was triggered by an electrostatic discharge resulting from unsafe handling procedures at the plant. Deposition testimony revealed that the supplier knew that manufacturing defects could enhance the static sensitivity of its detonators. One of its engineers had proposed a design change (never adopted) intended to alleviate the hazard of accidental detonation by routing static electricity away from the explosive charge. The case presented technical issues with regard to static sensitivity of explosive devices and forensic reconstruction of the incident. Legal issues included the "government contractor defense," interpretation of Federal Acquisition Regulations and contractor liability for unsafe practices at a subcontractor's manufacturing facility. The case was settled on terms very favorable to our client, with the supplier bearing most of the cost. Propane and Gas Systems and Appliances: We have successfully defended a variety of propane cases in which we have achieved either a dismissal or favorable settlement of the claim: • Tampering. A mobile home furnace explosion resulted in serious burns to a father and son and extensive structural damage. We were engaged to defend a major petroleum company which was one of two suppliers to the retailer who had serviced the plaintiffs’ residence. Pre-trial depositions and document review established that the probable cause of the incident was failure of the safety shut-off valve of the furnace gas control, which showed evidence of tampering. Our client contributed a nominal sum to a settlement package that was funded principally by the retail operator. • Propane-fueled forklift. We were engaged to defend a major propane producer/distributor/retailer in a suit brought by a paper mill employee who was severely burned by exploding propane which had leaked from the fuel system of a forklift truck. The plaintiff's claim was summarily dismissed by the trial judge at the close of the plaintiff's case, during which we established that propane cylinders supplied by our client had been tampered with and that the ignition key on the forklift may have been left in the "ON" position, permitting propane fuel to leak through the carburetor. • Odorization. We secured a verdict exonerating a propane wholesaler after an 8-week trial of claims by two individuals who sustained serious third-degree burns in an explosion. At trial, we proved that the cause of the accident was negligence on the part of the retailer's service personnel in handling gas leak complaints, and we refuted contentions that our client had failed to adequately odorize the propane. The jury awarded a verdict of $2.4 million against other defendants, but found no cause of action against our client. • Defective piping. An explosion and fire caused serious third-degree burns to a residential tenant who claimed that the explosion occurred as he attempted to light a kitchen stove. We secured a favorable settlement by showing that the probable cause of the incident was defective installation of gas piping by the tenant. • Uncapped line. An explosion and multiple-structure fire in Acra, New York, resulted in extensive property losses and personal injury claims. All three cases were settled after it was shown that the cause of the explosion was an old, uncapped gas line which was inadvertently opened by a neighbor. • Hot water heater control. A residential tenant sustained severe burns from flash fire in the basement as he attempted to relight a hot water heater pilot. We were successful in shifting most of the settlement costs to manufacturers of the hot water heater and gas control based on the failure of the safety shut-off to function when the pilot light was extinguished. • Explosion of truck scale. We defended a propane retailer in death actions brought by the families of four workers killed in a freak accident while attempting to "thaw" a frozen truck scale at a lead recycling plant. Hand-held propane torches left overnight in the scale pit were extinguished by oxygen deprivation. Morning shift workers were killed instantly when accumulated propane in the pit exploded. We negotiated a very favorable settlement after establishing that the torch manufacturer and the decedents' employer were principally responsible for the occurrence; that the propane in question was properly odorized; and that the failure of the decedents to smell gas was not the proximate cause of the accident because the victims were outside the space which contained the leaking gas. Failure of Boom on 55-Ton Crane: We defended the supplier of a Grove 55-ton hydraulic crane which failed when the boom fractured while lifting a 37-ton electric transmission tower. Our adversary's expert witness concluded that the failure was caused by an improper weld of steel channel on top of the boom. We established that the channel was designed to guide cables and was not a structural component. We also proved that the operator's technique overloaded the boom in a manner which would fracture the boom, rather than tip the crane. The jury found that the failure of the boom was caused by operator error and not by any defect in the crane. To Top Vehicle and Highway Accidents Our attorneys have tried several cases on behalf of a “big three” automobile manufacturer. These cases presented technical issues concerning steering column dismount, clutch linkage fracture, power steering gear malfunction and engine mount failure. We employed photogrammetric accident reconstruction methods in one of these cases. Other cases which settled before trial involved battery explosions, wheel/wheel cover design and alleged defects in the air brake system of a heavy-duty dump truck. To Top Construction Litigation Construction litigation frequently couples contractual issues typical of general commercial litigation with technical aspects of product liability cases. Our experience tells that, while extensive investigation is required to determine the true cause of a structural failure, careful analysis of construction documents is also necessary to minimize the exposure of our clients. Examples of significant cases handled by our attorneys include the following: • New York Thruway Bridge Collapse. After the catastrophic failure of a bridge carrying a major interstate highway, the New York Thruway Authority filed a suit for $114.0 million against the firms that designed and constructed the Schoharie Creek Bridge. We were retained to defend the general contractor, a world-class heavy construction firm. Through extensive pre-trial discovery, we established that the probable cause of the failure was defective design of the bridge foundation by the Thruway Authority’s consultant, with inadequate maintenance and inspection by Thruway staff a contributing factor. The Thruway Authority discontinued the action without taking any depositions from the contractor’s employees pursuant to a settlement which provided for a relatively modest payment to the Thruway Authority and retraction of fraud allegations against our client. • Brockport Roof Collapse. When a post-tensioned concrete roof system collapsed during construction of a university athletic complex, we were engaged by the general contractor to prosecute its claim for delay damages and to defend against claims asserted by others. Pre-trial testimony established that the failure resulted from a defect in the design of a coupling system for connection of post-tensioning cables in the segmented roof girders. We negotiated a seven-figure settlement on behalf of our client and its subcontractors. • Underwater Blasting Project. Our client, a blasting contractor, was hired to blast rock in the bed of the Hudson River at the dock of an oil terminal. The contract required blasting to a specified depth and provided that the owner would dredge and remove blasted rock. When the owner was unable to dredge to the specified depth, a dispute arose as to whether the problem was due to inadequate blasting or faulty dredging. We recovered payment in full for the contractor after a trial established that our client had correctly performed its work and that the owner’s dredging equipment and methods were inadequate. • Village of Whitehall Flood. During rehabilitation of a lock and dam on the Champlain Canal, a faulty cofferdam caused extensive flooding of the Village of Whitehall. We were engaged by a nearby manufacturing firm which sustained heavy losses when its factory was inundated by six feet of flood waters. We filed suit against the State of New York on behalf of the manufacturer and recovered a judgment for our client and its subrogees in excess of $4.0 million. • Empire State Plaza (South Mall) Project Delays. After “fast-track”planning of this billion-dollar project led to a gridlock of design changes and delays, contractors faced soaring costs. We negotiated a $5.0 million settlement for a plumbing contractor and won a court award of $1.8 million in damages (plus $1.7 million in retainage) for an electrical contractor. In the latter case, the State’s counterclaim against the contractor was reduced from $5.9 million to $363,000 (representing unexpended allowances), most of which had not been contested by the contractor. • Queensboro Bridge Delays. A $27 million bridge rehabilitation project was delayed for two years when the State revised temporary lane closing patterns and routed traffic through the job site. Numerous design problems also contributed to the delay. We filed suit against the State of New York on behalf of the contractor to recover delay damages. Through extensive pre-trial discovery, we established that the principal causes of project delays were the State’s failure to coordinate the project with New York City officials and omissions from contract plans affecting electrical work and bridge deck reconstruction. The State agreed to pay a settlement of $4.8 million to our client. Our experience in construction litigation also includes the prosecution and defense of claims by contractors and subcontractors for payment and the foreclosure of mechanic’s liens. To Top Labor and Employment Litigation We have been retained by a number of businesses to serve as special counsel for labor and employment law matters. These businesses call upon us to review their policies and procedures to help ensure that employment claims do not arise, and we then litigate the claims if it becomes necessary. We believe that we are uniquely qualified to evaluate these claims because we have also represented individuals who were wrongfully terminated or who were subject to discrimination. Unlike firms that represent only management, we believe that our experience in representing employees provides us a more well-rounded perspective. When management asks us for advice or to defend claims, we are able to call upon the experience of having been on the other side. In addition, we often advise businesses in connection with their legal relationships with top management and key employees. When a high-level employee leaves a business, disputes can arise concerning restrictive employment covenants and the protection of trade secrets and proprietary information. Our experience in litigating such claims provides us with invaluable insights into drafting legal documents, such as employment contracts, in a manner which provides the greatest protection and flexibility for our client. Our experience litigating labor and employment claims has placed our attorneys before both federal and state courts, administrative agencies and arbitration panels. Included among the wide variety of matters which our attorneys have handled are lawsuits involving sexual harassment and other forms of unlawful discriminatory conduct, wrongful discharge and defamation claims, actions to enforce restrictive covenants, claims in which employees have sought health care, pension and disability benefits under plans established by their employers, arbitrations involving the propriety of discipline imposed by employers, and claims for Workers’ Compensation and unemployment insurance benefits. To Top Defense of Licensed Professionals We represent licensed professionals in administrative and judicial proceedings. Our clients include architects, attorneys, insurance adjusters, engineers, physicians, nurses and other licensed professionals. These engagements present questions of professional conduct, licensing and discipline, credentialing, malpractice liability and disputes regarding corporate, contractual and employment relationships. We have successfully represented attorneys, not only in legal malpractice cases, but in ethics inquiries by the Committee on Professional Standards. Similarly, we have successfully represented physicians against charges brought by the Health Department’s Office of Professional Medical Conduct and the Education Department’s Office of Professional Discipline in the case of other licensed professionals. To Top Creditors’ Rights Litigation Our attorneys have a long and successful record of protecting the rights of both secured and unsecured creditors. Our clients include banks, hospital systems, corporations and individuals. We counsel our clients in developing strategies to maximize their recoveries or minimize their losses. We have advocated and protected the rights of creditors in Chapter 7, 11 and 13 bankruptcy proceedings. Our experience includes the prosecution of motions for relief from the automatic bankruptcy stay to continue or initiate legal actions necessary to protect their rights; negotiation of cash collateral orders and defense against proceedings brought by the debtor to use our clients’ cash collateral; recovery of assets from the trustee or debtor in bankruptcy; prosecution of objections to discharge of the debtor or dischargeability of specific debts; defense of preference actions brought by the debtor or trustee to disallow pre-bankruptcy transfers; and prosecution and defense of all types of adversary proceedings. When consistent with our clients’ objectives, we have also been successful in keeping matters out of court as a means of controlling costs and increasing efficiency. We have protected the rights of our banking and corporate clients, large and small, outside of bankruptcy proceedings by collecting commercial debts; prosecuting and defending contract and other litigation, such as lender liability, lease termination and disputes under the Uniform Commercial Code; representing clients in out-of-court workouts; identifying and setting aside fraudulent conveyances; and structuring and enforcing secured transactions. To Top Securities Litigation We have represented brokerages, individual brokers, and investors in a broad variety of securities-based claims. We have experience handling matters that involve claims based upon violations of Rule 10b-5 and/or the ’34 Act, suitability, fraud, misrepresentation and nondisclosure, churning, negligence, breach of contract, unauthorized trading and other misconduct by a broker, and/or a failure on the part of the brokerage to supervise individual brokers. The investment vehicles involved in these cases have included derivatives, options, margin accounts, stocks of all description (ranging from penny stocks to blue-chip investments), bonds, mutual funds, partnerships, limited partnerships, and private offerings. Examples of cases handled by our attorneys include the following: Investment Advisor Misconduct. We obtained a judgment in excess of $2.5 million against an investment advisor for his investment in a derivative security. The suit involved claims of securities fraud under the Securities Exchange Act of 1934, violations of the Investment Advisors Act of 1940, and common law claims of negligence and breach of fiduciary duty. Through discovery, we established wrongdoing by the investment advisor and obtained summary judgment for our client. Broker Misconduct. We have successfully represented a securities brokerage against multiple claims that one of its registered representatives had stolen from the brokerage’s clients. By focusing on the limitations on a brokerage’s responsibility to supervise its representatives, combined with a demonstration that the claimants had superior opportunities for detecting any wrongdoing, we have been able to resolve these claims through minimal settlements paid to the claimants in some cases, and favorable determinations on the merits in others. Despite the difficulties in responding to a significant number of claimants who were cooperating with each other by sharing both facts and legal theories, the ultimate cost to our client was far below original expectations. Other Securities Matters. We have represented brokerages, individual brokers, and investors in a broad variety of other securities-based claims. Typically, these claims involve fraud or misrepresentation by a broker regarding the investment and/or a failure on the part of the brokerage to supervise individual brokers. The investment vehicles involved include derivatives, options, margin accounts, stocks of all description (ranging from penny stocks to blue chip investments), bonds, mutual funds, partnerships, limited partnerships, and private offerings. The legal doctrines involved include Rule 10b-5 and other claims arising under the ‘34 Act, suitability, churning, misrepresentation and non-disclosure, negligence, and breach of contract. To Top Environmental Litigation We have represented businesses and municipalities in transactions and disputes pertaining to the environment. These engagements have required us to assess issues of liability arising from petroleum contamination, disposal of hazardous or toxic waste, workers’ exposure to hazardous chemicals and products, Phase I/II environmental evaluations, and solid waste landfill siting. We have also evaluated insurance coverage issues and liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). To Top