Issue 11 January 2005
The Durst Law Firm, P.C.
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Happy New Year! Let’s Review What
Special points We Learned in The Old Year
We would like to wish all the
of interest: members of the esteemed plain-
tiffs’ personal injury bar a Happy
♦ Lessons from the Old New Year. We expect this year to
be a banner year for personal
Year, and optimism
injury practice in New York. Why?
for the New Year.
I DON’T KNOW. Optimism is es-
sential in our area of practice.
♦ Dutch Girl Makes
Plaintiff’s Case Our firm had a decent year in
2004, and we hope yours did too.
♦ Don’t Let a Drunk We learned a lot in 2004 as well,
Plaintiff Deter You which made it even more profit-
able.
♦ Nuisance Cases An-
First, we learned that you can-
noy Us All
not take any case for granted as
being a winner, nor can you write
Inside this issue: Don’t Let A Drunk Plaintiff Deter You
New Years Lessons 1 We know that the plaintiff is
90% of the case, and that a
Drunken Plaintiffs 1 We argued that a man with
drunken plaintiff makes a very
Are People Too unsympathetic accident victim. But
that doesn’t mean you should give
2 up. Sometimes the drunkenness
Nuisance Cases
merely creates the conditions un-
Work Both Ways derlying the accident, but is not the
off even the most difficult case until
you’ve exhausted all witnesses.
For instance, in labor law cases,
it was thought by many lawyers,
especially plaintiff’s counsel in the
Blake case (not us), that a fall from
a ladder resulted in obvious sum-
mary judgment for failure to ade-
quately secure the ladder. We
learned from the Court of Appeals
that you must still set forth the
regulations of the New York State
Industrial Code that were violated.
So its not as easy as it seemed.
A case which on its face was
(Continued on page 2)
cause of the accident.
a .38% blood alcohol content at
10 am on the morning of the acci-
dent was, yes, part of the condi-
tions presaging the accident. He
was the reason that you needed
Mr. Rodriguez was just 19
when he lost 3 1/2 fingers in
a machine accident. The
defendant claimed it had no
documents showing they ever
sold the machine. The owner
said they weren’t “100%
sure” where they bought it.
The Dutch manufacturer
went bankrupt in 1983.
Result: $4.9 million verdict
for the plaintiff. Screw ‘em.
the fence around the stairs. He
was like a child, or a blind man, or
a pushed person, or a million other
characters that could fall into the
unguarded pit. If no one ever
stumbled or fell or misstepped or
miscalculated, you would never
(Continued on page 2)
 >Legal News
When there is a
serious injury
and a
deserving plaintiff,
there must be a
way.
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“Don’t Be Like the
Iraqi Minister of Information
Be man enough to drop a cause,
rather than stubbornly stand up
for injustice - just because you
can.”
Page 2
$4.9 Million Verdict Reassuring for New Year
(Continued from page 1)
impossible resulted in a $4.9
million verdict, thanks to witnesses
cooperating on the side of justice
from as far away as Holland.
In Rodriguez v. National
Equipment Company, the defen-
dants had initially prevailed on
summary judgment, on the
grounds that there was no sales
invoice, computer record, or
other document proving that they
were the seller of the product.
Drunken Plaintiffs Are People Too
(Continued from page 1)
need a fence around a drop off,
or a guard over a moving blade,
or a child seat for a car. And
was he partially at fault? Sure,
to the extent of the injuries he
would have received had their
been no negligence by the de-
fendant. But that was all.
We then argued that if the
Don’t Sue for Nuisance Value
A few years ago we were
sued for legal malpractice be-
cause, although we sued the
correct defendant, the tenant in
charge of the floor of the build-
ing where the plaintiff fell, a
subsequent incoming attorney
said we should have also sued
the building owner. We decided
We located the daughter in law
of the defunct manufacturer in
Holland, though, and she was
able to testify that she knew her
father in law’s company only
distributed the product in the US
through the defendant’s com-
pany. The Appellate Division
reversed the lower court and
held that her testimony created a
question of fact. Rodriguez v.
National Equipment Corp., 2003
N.Y. App. Div. LEXIS 4500, 304
A.D.2d 494, 759 N.Y.S.2d 55
defendant had placed the fence
around the stairs leading to the
sidewalk-basement, the plaintiff
would have bumped his head when
he fell, and maybe said “ouch”, but
would not have suffered the brain
injuries he received from falling 10
feet to the cement floor below.
The defendant offered their $1
million policy shortly after the trial which was a fence but was
(Continued on page 3) removed during renovation.
to handle the case through trial,
rather than settle for anything,
because the case against us was
so clearly ridiculous that the at-
torney had to suffer.
Guillermo Gleizer, the attor-
ney who brought the case
against us, ultimately broke
(1st Dep’t 2003) At trial, the
Dutch woman was absolutely
persuasive, and after a four
week trial, the jury had no trou-
ble finding that the defendant
had distributed the product,
based on her testimony.
The jury returned a verdict of
$4.9 million for this 19 year old
illegal Mexican immigrant, de-
spite the fallacious arguments of
the defendants that the machine
(Continued on page 3)
The plaintiff, with a 0.38
BAC, stumbled and fell
through the police tape,
down in tears after openings,
after being reemed out by Jus-
tice Eileen Bransten for bringing
the clearly meritless case. He
had to agree to pay us $12,500
before we’d let him drop the
case against us.
(Continued on page 3)
 Issue 11
Witnesses Make or Break a Case
(Continued from page 2)
had been “cannibalized” in the
40 years of its use prior to the
accident. Justice Norma Ruiz of
the Bronx agreed that the de-
fense of Robinson did not apply,
which drove the esteemed de-
fense counsel apoplectic. Natu-
rally the defendants have ap-
pealed on every imaginable
ground, but the 9% interest rate
on a judgment is some solace.
Preserving Evidence Saves the Day
(Continued from page 2)
started, knowing that we were
right, and that their insured’s
negligence was the cause of the
admittedly drunken plaintiff’s
injuries.
We took the deposition of a
witness who had been walking
with the plaintiff at the time he
fell. The witness was in his 80s,
and so we served a notice on the
Nuisance Cases Work Both Ways
(Continued from page 2)
I learned from this that you
must be man enough to drop a
case that turns out to be merit-
less. Gleizer argued that the
case against the building owner
should have been pursued, be-
cause they would ultimately
throw something in to the pot to
Page 3
The case provided renewed
reassurance and faith in our
jurors and judges. And that a
witness would go to the trouble
of coming from Holland to testify
on behalf of a total stranger
from Mexico renewed our faith in
witnesses, to be sure. When
asked why she did it, she simply
said she thought it was a good
thing to agree to cooperate.
Of course, we had already
defendant within a month after
starting the case, so we could
preserve the witness’s testimony.
The witness did die before the
trial.
We went to the site of the
accident within 2 weeks after it
occurred, took video tape and
photographs, and interviewed
witnesses. The defendant,
though, had already replaced
the missing fence, so the photos
get out of the case. We argued,
and believe, that you should
dismiss defendants that really
don’t belong in a case. To hold
them in to just squeeze another
grand or two out of them is not
only unethical, but unjust.
We members of the plaintiff’s
bar should resolve to only fight
withdrawn any claim of successor
corporation liability against her
company, so she had nothing to
lose.
To read her testimony, and
the testimony of the many ex-
perts, please visit our web site,
www.durstlaw.com, where the
entire trial transcript is available
in pdf format. It makes interest-
ing reading, not only because of
(Continued on page 4) A Picture That Took Years to
Develop
did not show the condition as it
existed at the time of the acci-
dent.
A substituted firm, Weitz &
Luxembourg, had photographs
showing the site before the fence
was replaced, and their coop-
eration in providing us the photo-
graphs was an excellent exam-
ple of plaintiffs’ attorneys help- New York Courtroom Evidence
ing other plaintiffs’ attorneys. is available in pdf format at
www.durstlaw.com
for just causes, not pursue cases just
because we can. We should evalu-
ate our cases carefully, and be
willing to drop those that don’t fly.
The plaintiff’s bar can be a
lucrative and satisfying field of law.
We should be careful not to abuse George cheering for
the privilege, or we’ll lose it.
Legislation against Lawyers
 The Durst Law Firm, P.C.
The Durst Law Firm, P.C.
285 Broadway
New York, New York 10007
Phone: 212-964-1000
Fax: 212-964-1400
Email: john@nynylaw.com
“The contingency fee makes it so that
the best costs the same as the rest ”
Visit the complete lawyer’s website at:
www.nynylaw.com
It Takes Good Judges, Jurors, Witnesses and Clients
(Continued from page 3)
this really decent witness from Holland, but
because the defendant’s own expert ulti-
mately conceded that the product violated
applicable standards. Defendant’s expert
testified “there were so many standards at
that time, that one has to pick and choose.”
The owner of the defendant seller of the
company finally admitted on the stand that his
attorneys told him to search his records for
sales of used machines, but not new machines.
The machine in question was sold new, so the
entire search, the premise of their motion for
summary judgment, was phony.
The defendant and third party defendant
basically conspired to deny knowledge of the
sale, by refusing to look either in their files or
their memories for accurate records showing
The Durst Law Firm, P.C. is a professional corporation of attorneys
specializing in representing personal injury victims. Our focus is on
workers at construction sites and factories. These workers are ex-
posed to serious dangers on a daily basis at work, while many em-
ployers take every shortcut on safety they can. OSHA is severely
underfunded. Without product liability attorneys like ourselves, acci-
dents will rarely be investigated, and employers will continue using
outmoded, unsafe machinery. Workers compensation benefits are
ridiculously small compared to the amount of actual lost earnings.
We are private attorneys general, with a goal of improving working
conditions by punishing uncaring employers and compensating the
workers they disable. We love our job.
the sale of the machine. The defendant owner on the third party case. The witness did not
was even so devious as to claim he would have testify, because his statement would then
recognized the machine if it was sold by his come in as a prior inconsistent statement.
company, even though it was sold in the 1950s.
He then failed a fairly simple memory test on
cross examination, being unable to distinguish
John Durst from Andy Bersin, or remember the
subject of an invoice more than a minute or two
The investigation in the case was performed
within weeks of the accident, and a statement
was obtained from a principal in the company
to the effect that they had bought all their
dough mixing machines from the defendant
National Equipment Corp. The Appellate Divi-
Standards dating back to 1929 required the
sion held that proof of the statement by the
corporate officer was admissible as both an grating for dough mixers like this to be
admission, and when he denied at deposition interlocked. Since this grating was not in-
being “100% sure”, as a prior inconsistent state- terlocked, the jury found the machine to be
ment. Justice Ruiz refused to admit the evidence defective when sold. The plaintiff was
on plaintiff’s case, since the admission was only found 0% at fault.