Monday, February 15, 2021

Triangulation: Plaintiffs Win While Defendants Fight
Sometimes, you have to get a little creative when it comes to maintaining a client's cause of action. Here is a posting I had made for another legal blog about one such case.

You can see my Memorandum of Law that I filed here. 
Here is a perfect example of how a skilled attorney can use proper strategy that applies to just about any dispute, whether it be a claim for injury or a dispute over money: when you have more than one target, you can pit one against the other to maximize your position. 

My client, a front seat passenger in a motor vehicle, doesn't know what happened to him. All he knows is that he was injured in a car accident - and that was enough to win the day for him.  

My client was sitting in the front seat of a vehicle driven by a young relative of his.  While traveling on Jericho Turnpike on Long Island, this vehicle collided with one driven by a third party.  The impact was so severe that my client was knocked unconscious, remembering nothing until paramedics removed him from the twisted metal that was the vehicle.  

The driver of his vehicle contended that she did nothing wrong and that the fault was with the other driver.  And of course, the driver of the other vehicle had a completely different story, as you'd imagine.  But our driver moved for summary judgment.  

Summary judgment motions are the gateway to moving from discovery to preparing for trial.  The standard for granting a motion for summary judgment is that the case should be similarly decided when there is no issue to be resolved at trial. Andre v. Pomeroy, 35 N.Y.2d 361 (1974). When faced with a motion for summary judgment, the Court must decide whether there is no genuine factual issue. Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110 (1926).  To beat the motion, I would have to show a triable issue of fact that can only be resolved at trial. 

The challenge laid out for me was clear - how to obtain full compensation for my client's injuries.  To do that,  I would need to defeat this summary judgment motion to not only keep his relative in the matter, but more importantly, to keep her insurance company - and its greater coverage -  in it as well. To do so, I pitted driver against driver. 

The driver of the vehicle which my client was in claimed in her sworn testimony that the other vehicle was traveling in the opposite direction and turned as if to pass through the intersection where the accident occurred and struck her while she was traveling with a green light.  

For his part, the other driver testified that he did not turn at all. He claimed to be standing at a red turn signal on Jericho Turnpike when the other vehicle plowed into him head-on, driving his vehicle back several yards.

The divergent stories made my life so easy - and the decision easy for the Judge, who held that "significant issues of fact exist[ed] sufficient to require a plenary trial" based upon "the parties' conflicting testimony concerning how the accident occurred".   

But, this matter would never see trial, as this ruling strengthened our negotiating posture and resulted in a much more favorable outcome than had been envisioned before this decision.


I didn't even really have to work to reach my client's goals:  the other side did all the work for me!  It's a handy tactic to employ when you have multiple defendants who are both looking to avoid responsibility, but who ultimately put themselves on the hook.

Just as a quick post-script: not only did the client settle with both drivers, but also ended up having a medical malpractice claim for injuries sustained from doctors performing an improper procedure in treating his injuries to his face - he beat summary judgment on that matter as well.

Gene Berardelli is a street-smart attorney with with over fifteen years of experience in civil and commercial litigation. Gene has achieved several career achievements, including successfully settling a seven-figure personal injury claim, successfully arguing before the New York State Appellate Division and successfully representing clients in trial litigation, mediations and arbitrations against such recognizable entities as the City of New York, New York City Transit Authority, JPMorgan Chase, TD Wealth Management Services, Inc., The Long Island Railroad, and Macy*s. Gene is also a noted New York Election Law expert who has had his opinions cited in scholarly works and published in news and feature articles.


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