Here is some information from Daniel Wise of the NYLJ.

Motion to Set Aside Rejected After Defense Goes Unraised

By Daniel Wise
New York Law Journal
April 12, 2006

For the lack of an objection, a $1.4 million jury verdict in an accident case must stand even though the defense had a silver bullet that could have prevented the award, Acting Supreme Court Justice Edgar G. Walker (see Profile) of the Bronx has ruled.

The sole remaining defendant in the case, a car rental company called DL Peterson Trust, had an ironclad defense because the protections against lawsuits provided by the state Workers’ Compensation Law trump state rules on vicarious liability that were in effect at the time of the 2001 accident, Justice Walker held in Caviness v. Sanchez, 16315/02.

However, since the defense did not raise that argument at trial, Justice Walker rejected its post-trial motion to set aside the verdict.

In the lawsuit, Gennell Caviness, a Brinks guard, sued to recover for injuries sustained when an armored truck she was riding in was involved in an accident. She sued both a co-worker who was driving and DL Peterson, which had rented the truck to Brinks. Ms. Caviness sought recovery for injuries to her finger and shoulder, which required two separate surgeries.

The co-worker was clearly immune from suit under the Workers’ Compensation Law, and he was released from the case as soon as the plaintiff rested. But neither side seemed to appreciate the fact that case law also protected the car rental company because of the way the Workers’ Compensation Law is structured.

Under the Court of Appeals’ 1988 ruling in Naso v. Lafata, 4 NY2d 585, Justice Walker ruled, both Brinks and DL Peterson enjoyed the same Workers’ Compensation Law immunity as the co-worker.

Nevertheless, the case proceeded to a verdict against the rental company last June without an objection from the company’s lawyer, Gregg D. Weinstock of Garbarini & Scher.

The failure to object became fatal once the jury was instructed on the issue of vicarious liability, Justice Walker held. In a reference to the issue, he noted that Garbarini & Scher, in its initial post-trial filing, acknowledged it “did not apprehend the significance of the case law discussed.”

Mr. Weinstock declined to comment because, he said, “the matter is in litigation.” However, according to the opinion, Mr. Weinstock submitted an affirmation in which he stated, “At no time during the trial did I affirmatively waive any defense available to my clients with respect to plaintiffs’ claims.”

Even though DL Peterson as a matter of law could not have been held vicariously liable, Justice Walker instructed the jurors that they had to find the rental company liable if they found the driver had been negligent.

Once that erroneous charge had been given to the jury, Justice Walker ruled, it was too late to correct it.

He pointed out that §4110-b of Civil Practice Rule and Laws bars a party from asserting error in a jury instruction unless it does so “before the jury retires to consider its verdict.”

Because no such objection had been made, the judge concluded, “no cognizance may be taken of what would have been clear error in so charging had defendant objected.”

As a consequence, he concluded, the “defendant is precluded from arguing that the theory of vicarious liability is not applicable to the facts of this case.”

Ms. Caviness was represented at the trial by Kenneth D. Brown, and on the post-trial motion to have the verdict set aside by Brian J. Isaac of Pollack Pollack Isaac & DeCicco.

Michael P. Conboy and Mary C. Azzaretto of McAndrew, Conboy & Prisco of Woodbury represented DL Peterson on the motion to reargue the post-trial motion. Mr. Conboy declined to comment.

— Daniel Wise can be reached at

Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.