McAndrew Conboy Prisco LLP

New York Retail Defense Attorney - McAndrew Conboy & Prisco

Decisions of Interest - Defendant

 
Associate Michael J. Prisco Obtains Early Summary Judgment For Long-Standing Telecommunication Client:
Plaintiff brought suit against McAndrew, Conboy & Prisco’s (“MPC”) telecommunication client, alleging she injured herself on roadway defect. However, plaintiff sued the wrong corporate entity. Upon the three year statue of limitations period expiring, McAndrew, Conboy & Prisco moved for early summary judgment prior to discovery being completed. In rebuttal, plaintiff argued for leave of court to amend complaint to add the proper corporate entity on grounds that his mistake constituted a “misnomer” as per CPLR § 305(c). Michael J. Prisco successfully argued before the Supreme Court, Kings County that although CPLR § 305(c) can be invoked to correct a “misnomer” within a complaint, it cannot be used when a plaintiff seeks to add a new and separate corporate entity. Justice Simenez-Salta agreed with MPC and granted early summary judgment to MPC’s client.
 
McAndrew, Conboy & Prisco Obtains Early Dismissal Via Summary Judgment For Property Owner:
Plaintiff alleged that she sustained injury as a result of an elevator malfunction. She sued, among others, the property owner. McAndrew, Conboy & Prisco (“MPC”) obtained the lease and other documentation from the property owner to develop an out of possession landlord defense. Based upon this documentation, MPC moved for summary judgment; the Supreme Court, Bronx County granted the motion.
 
Partner Peter G. Prisco Obtains Defense Verdict Before Supreme Court, Queens County Jury:
Plaintiff commenced suit against McAndrew, Conboy & Prisco’s (“MPC”) long-standing retail client, alleging she tripped and fell on sidewalk defect as she entered client’s store. MPC obtained statements from client’s manager, measurements and photographs of alleged defect, and testimony from plaintiff that her daughters safely traversed the area just prior to the fall. The matter went to trial before a Queens County jury. Peter G. Prisco argued that retail client could not be found negligent because the evidence proves the alleged defect was trivial as opposed to an unreasonably dangerous condition. The Queens County jury agreed and rendered a defense verdict dismissing plaintiff’s suit.
 
Partner Kevin B. McAndrew Obtained Defense Verdict Before Queens County Jury:
Plaintiff commenced suit alleging he was injured by a dangerous premises condition within the store of McAndrew, Conboy & Prisco’s (“MPC”) long-standing retail client. Early in the case, MPC’s investigations uncovered that rather than being injured by a dangerous premises condition, plaintiff was injured in a physical altercation with a third-party inside the retail store. Kevin B. McAndrew tried the matter before a Queens County Jury and successfully argued that plaintiff’s physical altercation with the third-party was a superseding cause rending plaintiff unable to establish the proximate cause element of his prima facie case. The Jury agreed and rendered a defense verdict.
 
McAndrew, Conboy & Prisco, Partner, Peter Prisco, was successful in obtaining dismissal of plaintiff’s action against a retail store defendant.:
Partner, Peter Prisco, prevailed in Supreme Court, Queens County, on a motion for summary judgment for a long-time retail store client. In that action, plaintiff brought suit against the retail store along with the mall owner alleging that water was leaking from the roof into the retail store’s aisle causing her to slip and fall and sustain a rupture of the right patella tendon, avulsion fracture of the distal patella requiring open reduction surgery and resulting in surgical scarring. The store manager testified within ten minutes she went by this location and did not notice any water on the ground. Additionally, Affidavits were submitted by regional facility managers indicating that there were no repairs to the AC and/or roof area for six months prior and six months subsequent to the date of this occurrence with regard to water leaks. The Court found that the defendant’s submissions and in particular the testimony of the store manager as well as facility manager were sufficient to make a prima facia showing of their entitlement to summary judgment as a matter of law. The Honorable Justice Valerie Brathwaite Nelson issued an Order dismissing plaintiff’s entire lawsuit. 
 
McAndrew, Conboy & Prisco was successful in obtaining directed verdict for retail store defendant in Supreme Court, New York County:
Plaintiff allegedly tripped and fell over a footwear stool utilized in the shoe department of a retail defendant.  The footwear stool was moveable and approximately 3’ tall and 4’ wide and stored at the end of a display gondola.  The customers had unfettered access to it and would be able to move it.  Plaintiff had an architect as a purported expert witness who was excluded and not qualified as an expert during the trial.  The plaintiff argued that the stool in and of itself was a defective condition.  Plaintiff failed to present any evidence as to actual and constructive notice of the specific condition.  Plaintiff was an 86-year old woman at the time of the accident and fell sustaining bruises to her knees, ankles, and shins.  Plaintiff had a $150,000 settlement demand.  Plaintiff had an orthopedic surgeon testify that she had a permanent condition and admitted on the stand that he was not supplied with all medical records by plaintiff’s counsel and that affected his ability to provide an accurate diagnosis and prognosis of the plaintiff.  At the close of plaintiff’s case, the defendant moved for a directed verdict before the Honorable Justice Geoffrey Wright in Supreme Court, New York County.  The Court found that plaintiff failed to provide any evidence that the defendant had any actual or constructive condition which caused the accident.  The Court further opined that a general awareness of a recurring condition is insufficient to place the defendant on notice of the specific condition and the action was dismissed. 
 
McAndrew, Conboy & Prisco was successful in obtaining a directed verdict for retail store defendant in Supreme Court, Broome County, before Honorable Justice Molly Reynolds Fitzgerald:
Plaintiff allegedly had an artificial plant fall onto her foot causing a fractured fifth metatarsal and alleged sympathetic dystrophy.  Plaintiff’s testimony indicated that she was in the process of taking the plant down when the vines got caught in a plant next to it causing it to fall out of her hand and land on her foot.  The display was 4 ½’ tall and plaintiff’s counsel argued that res ipsa loquitur applied.  There was no evidence that the defendant negligently displayed the artificial plants.  It was clear that plaintiff’s accident was caused as a result of her own conduct.  The Court granted defendant’s motion for directed verdict indicating that there was no evidence as to a dangerous condition and for the jury to conclude otherwise would have been speculation and surmise.   
 
McAndrew, Conboy & Prisco Successful in Obtaining Dismissal of Plaintiff’s Action:
Plaintiff brought suit against the Firm’s retail store client. Plaintiff alleged that she hit her foot on a platform, attempted to grab a nearby couch displayed on coasters, and that she fell when that couch moved because the coasters were not locked. The Firm filed a motion for summary judgment arguing that plaintiff’s action should be dismissed because the display was open and obvious and that plaintiff’s expert was not qualified to opine on retail store display. Justice Judith Mcmahon agreed and dismissed plaintiff’s entire action. 
 
McAndrew, Conboy & Prisco Obtain Summary Judgment for Retail Store Defendant:
Partner Peter G. Prisco and associate Tracy A. Kinneary prevailed, in the Supreme Court Queens County, on a motion for summary judgment for their long time retail store client. In that action, plaintiff brought suit against the retail store alleging that her shopping cart fell on her and her daughter after it became caught on clothing located on the store’s floor. Mr. Prisco and Ms. Kinneary worked closely with the client and its retail store managers from the early phases of the litigation. As a result, Mr. Prisco and Ms. Kinneary were able to establish that the aisle where plaintiff fell was cleaned just minutes before plaintiff’s accident. With that evidence at hand, Mr. Prisco and Ms. Kinneary advised its retail store client to move for summary judgment to dismiss plaintiff’s entire action. Based on that advice, a summary judgment motion was filed, wherein Mr. Prisco and Ms. Kinneary argued that there was no evidence that their client created the hazardous condition or had actual or constructive notice of it. The Honorable Augustus C. Agate agreed and dismissed plaintiff’s entire lawsuit on the ground that the aisle was cleaned just minutes before plaintiff’s accident.  

McAndrew, Conboy & Prisco, Associate, Yasmin D. Soto,  Obtains Dismissal for Retail Store Defendant:
Associate, Yasmin D. Soto, prevailed on a motion for summary judgment in a premise liability action. Plaintiff alleged that defendant was negligent in, among other things, allowing the entry area of the store to be blocked by a flatbed display cart and failing to warn of said dangerous condition. Ms. Soto filed a motion for summary judgment seeking dismissal of plaintiff’s entire action on the basis that the flatbed cart was open and obvious and not inherently dangerous. The Honorable Justice Garguilo of the Supreme Court, Suffolk County, concurred with Ms. Soto’s argument and dismissed  plaintiff’s entire action. 
Mary C. Azzaretto Successful on Summary Judgment Motion:
McAndrew, Conboy & Prisco’s associate Mary Azzaretto was recently successful in obtaining a dismissal of Plaintiff’s entire lawsuit in a slip and fall negligence action in Bronx County. Ms. Azzaretto argued that the defendant, a retail store, did not create nor have actual or constructive notice of the slippery condition on the defendant’s floor. The Honorable Betty Owen Stinson of the Supreme Court, Bronx County, agreed and issued an order dismissing Plaintiff’s entire lawsuit. 
McAndrew, Conboy & Prisco Obtain a Protective Order From Plaintiff’s Burdensome Discovery Demands:
The Firm successfully convinced the motion court judge to issue a protective order barring plaintiff from obtaining certain information on the grounds that the information sought was irrelevant, overbroad, and burdensome. Unsatisfied with the order, plaintiffs appealed to the Appellate Division Second Department in an effort to have the protective order lifted. On appeal, a team of attorneys, from McAndrew, Conboy & Prisco, argued that the motion court judge soundly exercised his discretion in issuing the protective order. The Appellate Division Second Department agreed and held that plaintiffs’ discovery demands were palpably improper in that they sought irrelevant information, or were overbroad and burdensome.  
McAndrew, Conboy & Prisco obtains directed verdict on behalf of defendant retail store that plaintiff was allegedly struck by a fluorescent light from a display fixture contained within defendant’s premise:
Plaintiff had been in the process of moving comforters near the display fixture when allegedly the light fell striking her arm and bursting and causing injury to her eye.  Plaintiff subsequently had a trip and fall accident while working and in the process of walking backwards fell breaking left wrist which they were claiming was causally related to the initial accident.  After the close of all evidence, the motion for directed verdict was argued before the Honorable Justice Jeffrey Spinner who granted defendant’s motion and dismissed plaintiff’s Complaint for failing to establish a prima facia case that the defendant had created the condition or was on actual or constructive notice of it.
Mary Azzaretto Successful in Convincing the Second Department to Affirm Jury Defense Verdict for the Firm’s Retail Client:
Partner Peter G. Prisco obtained a jury defense verdict. In that case, the plaintiff alleged that she was injured when she fell after leaning on a folding shelf in the defendant’s store. On appeal, plaintiff argued that the jury verdict was against the weight of the evidence. Plaintiff was unsuccessful, as Ms. Azzaretto convinced a panel of four judges that a fair interpretation of the evidence supported the jury’s finding that defendant was not at fault for plaintiff’s injuries.
 
McAndrew, Conboy & Prisco Appellate Team Successful In the United States Court of Appeals for the Second Circuit:
Plaintiff filed a lawsuit against the Firm’s retail store client alleging, among other things, violation of his civil rights under 42 U.S.C. §§ 1981, 1982, and 1983; false imprisonment; and intentional infliction of emotional distress. Together, Partner Peter Prisco, Mary Azzaretto and Yasmin Soto launched an investigation into the merits of plaintiff’s allegations. Based upon their investigation, they filed a motion to dismiss the entire action. Judge Castel of the United States District Court for the southern District of New York granted the motion; plaintiff appealed. After Oral argument, a panel of judges for the United States Court of Appeals for the Second Circuit affirmed the judgment of the district court dismissing plaintiff’s entire action.  

McAndrew, Conboy & Prisco Obtain Dismissal for Their Client:
Plaintiff brought suit against a telephone company alleging that while on private premises she was injured when she collided with a telephone booth housing a telephone installed by the defendant. Plaintiff claimed that the placement of the telephone booth in combination with other factors, such as the lighting conditions at the time, constituted a dangerous condition and thus, defendant telephone company was negligent. The Firm achieved a victory for its telephone company client on the grounds that the placement of the telephone booth was not the proximate cause of plaintiff’s injuries.  
McAndrew, Conboy & Prisco obtains defense verdict in action brought by retail customer who claims she was used as “human bait” to catch a man taking photos up women’s skirts in its retail store, Supreme Court, Jefferson County:
Defendant retail store became aware of an individual going around taking photos up women’s skirts and placed the local police on notice of the incident.  The defendant attempted to ascertain proof that the individual was actually doing this and videotaped them in the process of doing so with another customer.  The police were called and then the criminal third party allegedly did it to the plaintiff as well.  The third party was subsequently convicted of a felony and served a significant jail sentence.  The jury dismissed plaintiff’s claim finding that the defendant was not negligent and that their actions were reasonable under the circumstances.  Plaintiff argued that the defendant should have warned every customer in the store that this was a possibility.  Plaintiff claims psychiatric/psychological injuries as a result of the accident and she received no award.  
Partner Peter G. Prisco Receives a Defense Jury Verdict at Trial:
Plaintiff brought an action against the Firm’s retail store client alleging that she was injured while shopping at the defendant’s store when she fell after leaning on a folding shelf attached to a display table. The action went to trial where Partner Peter Prisco argued before a jury in the Supreme Court of Nassau County. At the close of trial, the jury rendered a defense verdict finding that the defendant retail store was not at fault in the happening of the accident.  
 
McAndrew, Conboy & Prisco Convinces the Appellate Division First Department to acknowledge, for the First Time, the Open and Obvious Defense:
Plaintiff, a patron of the retail defendant store, alleged that she sustained injuries when she was struck by a metal bracket on a clothing rack. The Firm moved for summary judgment arguing that plaintiff’s claim should be dismissed because the metal bracket on the clothing rack was open and obvious and not inherently dangerous. The Appellate Division Second Department has long acknowledged such a defense. At the time the Firm filed the motion, however, the First Department’s precedent noted that it did not agree with the Second Department in acknowledging the open and obvious defense. Nevertheless, the Firm’s appellate team convinced a four justice panel in the First Department that the specific facts of this particular case warranted them to acknowledge the open obvious and defense. The Panel agreed and dismissed plaintiff’s action.  
 
Mary C. Azzaretto Successful on Appeal:
A Patron of the defendant retail store brought a personal injury suit after her shopping cart collided with display racks within defendant’s store. Ms. Azzaretto successfully argued that the display racks with which plaintiff’s shopping cart collided were open and obvious, known to her, and not inherently dangerous. A four judge panel in the Appellate Division, Second Department, agreed and dismissed plaintiff’s action.  

Partner Kevin B. McAndrew Obtained Dismissal of Plaintiff’s Action in the Supreme Court, Appellate Division, Second Department:
Plaintiff brought an action against the Firm’s retail store client claiming that he sustained injuries when he slipped and fell on a clothes hanger lying on the floor. Partner Kevin B. McAndrew successfully obtained dismissal of the action in the Supreme Court, Rockland County. Plaintiff appealed arguing that the motion court erred in dismissing his action. Mr. McAndrew vigorously defended the retail store client on appeal in the Appellate Division, Second Department. There, he argued that the store’s employees did not create the condition leading to plaintiff’s fall, nor was the hanger on the floor long enough to provide the store employees time to pick it up. The four judge panel agreed and affirmed the dismissal of plaintiff’s action.
Partner Michael P. Conboy’s Award of Summary Judgment Affirmed On Appeal:
Plaintiff filed an action in the Suffolk County Supreme Court alleging that she sustained injuries after she slipped and fell on a clothes hanger lying on the floor in the middle of defendant’s aisle. At plaintiff’s deposition, Mr. Conboy was able to elicit testimony from plaintiff that she did not know how long the hanger was on the floor and that she did not see the hanger while shopping in the store prior to her fall. Mr. Conboy filed a motion for summary judgment arguing that plaintiff’s claim should be dismissed because the store constantly policed the aisle for debris, the plaintiff did not know how long the hanger was on the floor, and the plaintiff did not see the hanger prior to her fall. Justice Burke of the Supreme Court Suffolk County granted the motion; a panel of Justices for the Appellate Division, Second Department, affirmed.