Kenneth S. Merber obtained a directed verdict in favor of a commercial property owner after two weeks of trial in the Civil Court for the City of New York, Kings County over which the Honorable Genine Edwards presided. The plaintiff suffered second and third degree burns over 12% of his body as a result of a construction accident workplace explosion resulting from the ignition of flammable vapors. Plaintiff obtained a verdict against the co-defendant tenant on the same date as Judge Edwards directed a verdict in favor of Mr. Merber’s client. In a related case, Mr. Merber successfully prosecuted a declaratory judgment action obtaining indemnification and reimbursement of legal costs and expenses exceeding $100,000 in favor of his client and its insurer against another insurer. The declaratory judgment obtained from the Supreme Court, Kings County was affirmed by the Appellate Division, Second Department.

Defense Verdict For Electrical Contractor In Supreme Court, Queens County

Mr. Merber obtained a defense verdict following a jury trial of a construction accident case in the Supreme Court of the State of New York, Queens County. The Honorable Patricia Satterfield presided over the trial in Queens County. Plaintiff, a construction worker, fell while constructing a building as a result of defectively placed rebar. Plaintiff sustained numerous orthopedic injuries requiring surgery. The jury found co-defendants owner and contractors liable under Labor Law §200 and §241(6). The Labor Law §241(6) claim was predicated upon a violation of Rule 23-1.7(d)(1). The jury also apportioned 40% comparative negligence against the plaintiff. The jury did not apportion any fault against Mr. Merber’s client.

Brooklyn OB/GYN Cleared In Brain Damaged Baby Case

Kenneth S. Merber successfully defended a Brooklyn OB/GYN obtaining a dismissal of all medical malpractice claims asserted against her. The infant plaintiff suffered catastrophic brain damage as a result of the alleged malpractice related to the labor and delivery. Although the co-defendants settled the case with plaintiff for $5 million, no contribution was made on behalf of Mr. Merber’s client and the case against her was dismissed.

Brain Damage Case Dismissed Against OB/GYN

Mr. Merber obtained a dismissal of a lawsuit on behalf of an OB/Gyn against whom plaintiff alleged medical malpractice. The infant plaintiff suffered catastrophic injuries including fetal hypoxia, hypoxia acidosis, severe brain damage, neurological defecits in speech, language, cognitive and motor skills, impaired gait, difficulty ambulating, cerebral palsy, visual and hearing deficits.

Defense Verdict On Behalf Of Brooklyn Vascular Surgeon

Kenneth S. Merber obtained a defense verdict on behalf of a Brooklyn vascular surgeon after a three week jury trial conducted in the Supreme Court of the State of New York, Kings County before the Honorable Melvin Barasch. In that case, the plaintiff’s estate filed claims against Mr. Merber’s client and a Brooklyn hospital for medical malpractice and wrongful death. Plaintiff’s decedent was involved in a motorcycle accident. Thereafter, he was transported to the co-defendant hospital. The patient was severely injured and required a below knee amputation which was performed by the vascular surgeon represented by Mr. Merber. Plaintiff claimed that the defendants failed to adequately monitor the patient and failed to appreciate his presenting signs and symptoms of a liver laceration and internal bleeding. Plaintiff’s estate claimed that as a result of the failure to appreciate and diagnose the patient’s condition, the patient exsanguinated. The same jury that issued a defense verdict in favor of Mr. Merber and his client awarded $3.85 million against the co-defendant hospital.

Malpractice Suit Dismissed Against Orthopedic Surgeon

Kenneth S. Merber obtained summary judgment and an order dismissing plaintiff’s medical malpractice action against a New York orthopedic surgeon in an action pending in the Supreme Court of the State of New York, Kings County. Plaintiff claimed that Mr. Merber’s client negligently performed a right knee ACL reconstruction and subsequent high tibial osteotomy. Plaintiff suffered post-operative infections following both surgical procedures and ultimately required total knee replacement surgery. Mr. Merber successfully defended the action and proved that the defendant orthopedist did not depart from good and accepted medical practice in connection with his diagnosis, care or treatment of the patient including the surgical procedures he performed and his post operative management of the patient’s infections.

Medical Malpractice Case Dismissed Against Orthopedic Surgeon

Kenneth S. Merber obtained a dismissal of a medical malpractice lawsuit filed in Kings County against an orthopedic surgeon who performed three surgical procedures upon the plaintiff including hip replacement surgery. Plaintiff claimed that Mr. Merber’s client and co-defendant doctors and hospitals negligently diagnosed, cared for and treated the plaintiff resulting in post-operative complications and permanent disabilities.

Defense Verdict In Construction Scaffold Accident Suit By Bronx Jury

Kenneth S. Merber obtained a defense verdict from a Bronx County jury in a Labor Law claim following a three week jury trial. Plaintiff, a construction worker, fell from a scaffold while performing waterproofing work on the exterior of a building above its roof. Plaintiff sustained numerous injuries as a result of the twelve foot fall including injuries to his head, neck, back and shoulders. Injuries included herniated discs at L4-5 and C5-6, lumbar and cervical radiculopathy, impingement syndrome to his right shoulder and permanent incapacity from work. Although plaintiff demanded $1.2 million throughout the three week trial, the Bronx County jury issued a defense verdict in favor of Mr. Merber’s client. The Honorable Stinson presided over the trial.

United States Court Of Appeals Affirms Dismissal Of Claims Against Psychiatrist

The Justices of the Second Circuit of the United States Court of Appeals affirmed the decision of the Honorable Denise Cote of the United States District Court for the Southern District of New York which granted summary judgment in favor of the firm’s client, a New York psychiatrist. Plaintiff claimed that the defendants deprived her of her constitutional rights including those rights to liberty without due process. Plaintiff filed the lawsuit under 42 U.S.C. §1983. Plaintiff claimed that the firm’s client improperly performed a psychiatric evaluation and wrongfully committed the plaintiff. Plaintiff also claimed that the defendants improperly placed the patient on involuntarily leave pursuant to §72 of the New York State Civil Service Law. Mr. Merber argued the appeal in the United States Court of Appeals resulting in the dismissal of the federal lawsuit.

Mr. Merber Obtained Verdict In Favor Of Firm’s Client For $1.5 Million In Police Shooting Case

Kenneth S. Merber successfully prosecuted a plaintiff’s personal injury case in Bronx County against a former Police Officer and a municipality in a police shooting case. Mr. Merber’s client suffered a gunshot wound to his legs and groin resulting in surgical exploration and repair of a ruptured urethra and resulting in temporary loss of bladder function and sexual function. After a three week jury trial, Mr. Merber obtained a verdict in favor of his client in the amount of $1.5 million.

Defense Verdict - Supermarket Case Dismissed

Kenneth S. Merber successfully defended a national supermarket chain obtaining a defense verdict after a two week jury trial in the Supreme Court of the State of New York, Kings County. The plaintiff, in the lawsuit, claimed to have sustained significant physical and cognitive injuries as a result of the alleged negligence of the store and its employees. Specifically, plaintiff claimed that the store’s employees failed to maintain the store in a safe condition, allowed dangerous and defective conditions to exist and caused the infant plaintiff to fall and suffer closed head trauma, a fractured femur and other injuries.

Federal Product Liability Claim Dismissed

Kenneth S. Merber, obtained summary judgment and dismissal of all claims against his client, a distributor of high end European designed chairs. In this lawsuit, filed in the United States District Court, Eastern District of New York, the plaintiff claimed that as a result of the defective design and manufacture of a chair, she suffered numerous injuries including herniated discs requiring back surgery and leaving her with permanent neurological deficits.

Claims Against New Jersey Municipality Dismissed

Kenneth S. Merber obtained a discontinuance of various claims asserted against the mayor and multiple council members of a Northern New Jersey municipality. The claimants alleged fraud, breach of contract, conspiracy, tortious interference of contractual relations and 28 USC§1983 claims against Mr. Merber’s clients. The claims derived from a failed tax revaluation.

Successful Prosecution Of DJ Action

Mr. Merber successfully prosecuted a declaratory judgment action on behalf of one of the insurers represented by Callan, Koster, Brady & Brennan, LLP as against another carrier. Mr. Merber obtained indemnification and reimbursement for legal fees and expenses incurred by the firm’s client against another insurer whose insured was liable for the claimed damages in an underlying bodily injury lawsuit which arose out of a construction accident.

Declaratory Judgment Action Successful Prosecution In Products Liability Claim

Kenneth S. Merber successfully defended the firm’s client, a commercial real estate owner, in connection with product liability and general liability claims asserted against it. Plaintiff suffered significant injuries including deformity to his hand as a result of an allegedly defective and malfunctioning window. Mr.. Merber also successfully prosecuted related third-party and declaratory judgment actions obtaining a complete defense and indemnification from third-parties.

Legal Malpractice Lawsuit Dismissed

Mr. Merber and David LoRe obtained an order of dismissal in connection with a legal malpractice lawsuit filed against one of the firm’s clients. Plaintiff claimed that the defendant attorneys failed to adequately represent her interests in connection with a personal injury lawsuit related to a construction accident. Mr. Merber successfully defended the firm’s client obtaining a dismissal of all claims

Labor Law Case Against Municipality Dismissed. Successful Appeal

Mr. Merber successfully defended a Westchester County municipality and obtained a dismissal of all claims filed against it. The Supreme Court of the State of New York, Appellate Division, Second Department, reversed a prior decision of one of the judges of the Supreme Court, Westchester County, which denied the motion for summary judgment filed by Mr. Merber and David LoRe in a construction accident case. The plaintiff in this case was a dock builder who was constructing a bulkhead when he claims he fell from an elevated surface suffering numerous injuries requiring multiple surgical procedures and incapacitating him from future employment.

Wrongful Death Action - Manlift Accident Claims Dismissed

Kenneth S. Merber obtained won summary judgment and dismissal of all claims filed against his clients, a parking garage operator and a commercial and residential property owner related to a manlift accident that occurred within the parking garage in the building. The decedent’s family claimed that as a result of the negligence and violations of New York’s Labor Law, plaintiff’s decedent was crushed and suffocated as a result of a defective and malfunctioning manlift. Mr. Merber aggressively defended the action from its inception and obtained an order dismissing all claims against his client. Plaintiff appealed from that decision. Mr. Merber argued the appeal in the Appellate Division, Second Department. The Appellate Division, Second Department affirmed the lower Court’s decision and dismissed all claims filed on behalf of the plaintiff.

Wrongful Death/medical Malpractice Case Against Orthopedic Surgeon Dismissed

Kenneth S. Merber obtained an order granting summary judgment and dismissing all claims filed against his client, a prominent New York orthopedic surgeon, in a wrongful death and medical malpractice action filed in the Supreme Court of the State of New York, Kings County. In this case, the plaintiff’s family members sued Mr. Merber’s client and other defendant physicians alleging medical malpractice and wrongful death. Plaintiff alleged that the defendants failed to properly and timely diagnose, treat and adequately respond to the plaintiff’s decedent, signs, symptoms and complaints of shoulder pain, insomnia, loss of appetite and altered mental status. The decedent was ultimately diagnosed with sepsis and septic shock which led to her death.

Labor Law Claims Dismissed

Kenneth S. Merber obtained an order from the Honorable Yvonne Louis of the Supreme Court of the State of New York, Kings County granting summary judgment and dismissal of all claims and causes of action filed against an excavating contractor. The plaintiff, an employee of a fire proofing contractor, fell down an elevator shaft sustaining catastrophic injuries to multiple parts of his body including: fractures to his extremities and spine; closed head injuries with traumatic brain injury; and partial paralysis. Plaintiff received more than $5 million in a settlement with other defendants.

Forklift Construction Accident/products Liability Claim Dismissed

Kenneth S. Merber obtained summary judgment and dismissal of the labor law and product liability claims filed against his client, an electrical contracting corporation. The lawsuit was filed in the Supreme Court of the State of New York, Richmond County. Plaintiff claimed that as a result of a forklift accident, he sustained numerous injuries including closed head trauma, concussion, traumatic brain injury as well as neck, back and shoulder injuries.

Lawsuit Against Property Owner Dismissed

Kenneth S. Merber obtained summary judgment and dismissal of all claims filed against his client, an owner of commercial and residential real estate in Bronx, New York. The Honorable Karen Smith of the Supreme Court of the State of New York, New York County granted Mr. Merber’s motion. Plaintiff had claimed that the defendants were negligent and improperly inspected, maintained and repaired the public sidewalk and a treewell causing plaintiff to trip and fall and sustain numerous injuries including tears to the ligaments and cartilage in her knees and shoulder and head injuries including traumatic brain injury. She required sutures and staples to close her head wounds.

Medical Malpractice Case Against Eye Surgery Center Dismissed

Kenneth S. Merber successfully defended a Manhattan out-patient eye surgical center. Plaintiff claimed that the firm’s client and co-defendant failed to obtain plaintiff’s informed consent and then, negligently performed glaucoma surgery including a trabeculectomy with the application of Mitomycin-C. As a result of the alleged negligence, plaintiff suffered numerous ophthalmological injuries including: loss of intraoccular lens; loss of cornea; damage to the retina; ptosis and deformed iris; several choroidal detachments; amblyopia; neurological loss; and loss of vision. Mr. Merber proved that at all times, the care and treatment provided by his client comported with good and accepted medical practice without departing therefrom. The case was discontinued at trial. Mr. Merber’s client did not contribute to any settlement.

Medical Malpractice And Wrongful Death Action Dismissed Against Physician

Kenneth S. Merber obtained summary judgment and an order dismissing all claims filed against a Brooklyn internal medicine physician. The plaintiff’s family members claimed the defendant physicians and medical institutions committed malpractice in failing to appropriately treat a patient while in the hospital and while admitted to a nursing home. Plaintiffs claimed that the decedent, as a result of the negligence of the defendants, developed decubitus ulcers resulting in sepsis and death.

Negligence Case Dismissed Against Property Owner

Kenneth S. Merber obtained summary judgment and dismissal of all claims filed against a Brooklyn property owner. Plaintiff, who tripped and fell on an allegedly defective sidewalk, alleged that she was injured as a result of the negligence of several defendants, including one of Mr. Merber’s clients. Plaintiff suffered injuries to her head, nose, lip, right hand and knee. Plaintiff was diagnosed with neurological injuries including a “trigger thumb” and torn ligaments in her knee which was treated surgically.

Black Ice Case Dismissed.

Mr. Merber obtained a dismissal of all claims filed against a Brooklyn property owner and manager. Plaintiff claimed to have slipped and fallen on black ice in a housing complex owned and operated by the firm’s client. As a result of the accident, plaintiff suffered a fracture of the left ankle which required an open reduction, internal fixation surgery. Mr. Merber obtained summary judgment and an order dismissing the case with prejudice. Plaintiff appealed from that decision and the Appellate Division, Second Department affirmed in a decision often relied upon and cited by New York attorneys.

Construction Claims Dismissed - Affirmed By Appellate Division, Second Department

Kenneth S. Merber obtained summary judgment dismissing plaintiff’s claims asserted under Labor Law §200 and §240(1). The Court denied defendant’s motion in connection with Labor Law §241(6) claims and allowed them to proceed to trial. Mr. Merber appealed from that portion of the decision which denied summary judgment on the Labor Law §241(6) claim. The Appellate Division, Second Department reversed the lower Court’s decision in connection with the Labor Law §241(6) claim and in effect, dismissed the case in its entirety. The case involved a construction accident in which two workers suffered severe burns as a result of the ignition of flammable vapors. Plaintiff claimed that the property owner and its tenant were liable for his accident and resultant injuries.

Case Against Brooklyn Doctor Dismissed In Failure To Diagnose Lung Cancer Case. Dismissal Was Affirmed By Appellate Division

Kenneth S. Merber obtained summary judgment and an order dismissing the medical malpractice claims filed against his client, a Brooklyn internal medicine physician who treated the plaintiff at a long shoreman’s clinic. The plaintiff, a member of a long shoreman’s union, developed lung cancer. Plaintiff claimed that as a result of the failure to diagnose and delay in diagnosing his lung cancer, the cancer metastasized, requiring surgical resection of his lung, extensive chemotherapy and compromised his prognosis for a cure. Plaintiff successfully prosecuted the case against co-defendants obtaining a recovery of $1.35 million. Plaintiff appealed from the order obtained by Mr. Merber granting summary judgment in favor of his client. After argument of the appeal, the Appellate Division, Second Department of the Supreme Court of the State of New York, issued a decision affirming the prior order of the Honorable Marsha Steinhardt of the Supreme Court, Kings County which granted summary judgment and dismissed the case against the firm’s client.

Elevator Case Dismissed

Mr. Merber successfully defended the firm’s client at trial. Plaintiff claimed that while operating a freight elevator, the elevator suddenly fell. As a result of the accident, plaintiff sustained a fracture of the left proximal fibula, a strain of the lumbar spine, lumbo sacral pain syndrome, a torn meniscus in his right knee and herniated discs at L3-4, L4-5 and L5-S1, together with a torn right rotator cuff and torn ACL of the left knee and two cracked teeth. Plaintiff underwent three surgical procedures, one to his right shoulder and one to each of his knees. Plaintiff settled with co-defendants for $250,000. Mr. Merber’s client did not contribute to the settlement and the claims against it were dismissed.

Product Liability Case Dismissed During Trial

Kenneth S. Merber successfully defended a distributor in a product’s liability case obtaining a dismissal of the case against the firm’s client. The plaintiff sustained severe fractures of his hand requiring amputation of two fingers as a result of utilizing a defective food processor. Mr. Merber’s client did not contribute to the $2.8 million settlement negotiated between plaintiff and co-defendants. The case was tried in the Supreme Court of the State of New York, New York before the Hon. Alice Schlessinger.

Case Dismissed Against Brooklyn Vascular Surgeon

Mr. Merber successfully defended a Brooklyn vascular surgeon and obtained a dismissal of all claims filed against him.. In this case, plaintiff claimed that the firm’s client failed to adequately perform a vascular consult and examination and failed to author a consult note pertaining to his examination of the patient. Plaintiff also claimed that the firm’s client departed from good and accepted medical practice in failing to request a second opinion. As a result of the alleged negligence, plaintiff, following a cardiac catheterization, developed symptoms including elevated temperature, vomiting, right femoral pain, right knee and ankle pain and was diagnosed with a mycotic aneurysm. Plaintiff suffered urogenital and neurological injuries including a permanent limp. She required placement of a nephrostomy tube due to injuries to her right ureter and a laceration to her inferior vena cava. She also experienced abdominal wall abscesses requiring surgical drainage. Although co-defendant physicians settled the case with plaintiff for $750,000, no contribution was made to the settlement on behalf of the firm’s client.

Disciplinary Complaint Against New York Lawyer Dismissed

Kenneth S. Merber successfully defended a New York attorney in an administrative proceeding pertaining to a disciplinary complaint filed against him by a former client. The Complaint Mediation Panel of the Association of the Bar of the City of New York refused to take any action with respect to the disciplinary complaint finding no basis to pursue same after hearings were conducted by Mr. Merber.

Recovery Obtained For Client In Theater Accident

During the trial of a personal injury action filed by the firm against a New York City Broadway theater corporation, Mr. Merber obtained a favorable settlement on behalf of the firm’s client in the amount of $225,000. The claim involved a slip and fall accident within a Broadway theater. Mr. Merber’s client suffered a fractured hip requiring an open reduction/internal fixation procedure. Defendant denied that the accident resulted from any dangerous or defective condition. The defendant also argued that it neither created any dangerous condition nor had notice of same prior to the incident. Mr. Merber successfully opposed defendant’s motion for summary judgment and withstood defendant’s appeal. When the case proceeded to trial, Mr. Merber obtained the favorable settlement after defendant had maintained a “no pay” position for years of litigation.

Wrongful Death Suit Against Queens Cardiologist Dismissed

Kenneth S. Merber successfully defended a Queens County cardiologist obtaining a dismissal of all claims asserted against him. In this wrongful death medical malpractice lawsuit, plaintiff’s estate claimed that the firm’s client negligently treated the decedent and failed to appropriately read and interpret the patient’s echocardiogram. As a result, plaintiff coded and fell into a permanent comatose state from which he never recovered.

Verdict In Vehicular Liability Claim

Kenneth S. Merber successfully defended an automobile owner/operator in a multi-million dollar brain damage claim. Although the accident only involved a single vehicle operated by Mr. Merber’s client and both operator and passenger were ejected from the vehicle, Mr. Merber proved during a five week jury trial conducted before the Honorable Lucindo Suarez, that the City of New York, a co-defendant in the action, was liable for failing to maintain and repair the subject highway and for failing to maintain appropriate signage on the highway which caused and contributed to the catastrophic accident. Mr. Merber’s zealous litigation resulted in a jury verdict apportioning 90% of the fault for the accident against the City and only 10% against the firm’s client even though Mr. Merber’s client was incapacitated, and as such, unable to testify on his own behalf.

Defense Verdict - Medical Malpractice Claim For Failure To Diagnose And Treat Crohn’s Disease

Kenneth S. Merber second seated Paul F. Callan in a protracted medical malpractice lawsuit tried in the Supreme Court of the State of New York, Kings County before the Honorable Justin Reichbach. In that case, plaintiff alleged that the defendant doctors and hospitals were negligent in failing to test, diagnose and treat the patient’s Crohn’s disease. Plaintiff also alleged that defendants were negligent in performing a repair of a perforated ilium and for failing to properly perform a resection of plaintiff’s bowel. A defense verdict was obtained on behalf of the firm’s client by Mr. Callan and Mr. Merber.

Successful Defense At Trial Of Physician Resulted In Favorable Settlement

Kenneth S. Merber successfully defended an internal medicine physician in a two week trial in the Supreme Court of the State of New York, Queens County and obtained a settlement substantially below what would reasonably have been expected in a case where the plaintiff’s decedent sustained serious post-operative complications following aortic valve replacement surgery resulting in bleeding, cardiac tamponade, shock, stroke, coma and death. Plaintiff claimed defendants committed malpractice and failed to properly monitor the decedent’s anticoagulant therapy following open heart surgery. The claim was settled after two weeks of trial for less than $100,000.

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