DeFranco v Napoli Bern Ripka Shkolnik LLP 2023 NY Slip Op 30952(U) March 28, 2023
Supreme Court, New York County Docket Number: Index No. 150188/2018 Judge: James E. d’Auguste describes what happens when cases are shuttled between the initial attorneys and “trial counsel”, which in this particular situation means a law firm that took all of the initial attorneys’ cases and worked them up for trial. The work in this unusual auto accident case was not successful.

“Plaintiffs GinaMarie and Daniel DeFranco are spouses who have resided at all relevant
times on Staten Island (see affidavit of GinaMarie [GinaMarie] DeFranco, sworn to December 11, 2021 [GinaMarie AffJ, i!i!l-2 [NYSCEF Doc No. 152]). Plaintiffs allege that GinaMarie was injured on May 21, 2003, driving through the intersection of Amboy Road and Barclay A venue on Staten Island, when the car she was operating ran over a “live electrical wire/power line” lying on the road surface, which shocked her and caused her, among other harms, serious, traumatic neurological, spinal cord, and
psychological injuries (second amended complaint [SAC] [NYSCEF Doc No. 104], ,r,i47-50).
Plaintiffs assert that GinaMarie’s injuries were proximately caused by the negligence of
Consolidated Edison Company of New York, Inc. (Con Ed) which, as the public utility service company entrusted to provide electricity to the City of New York, is obligated to maintain the safety of the City’s electrical power system (id.).”

“The Underlying Action went to trial in early January 2015. On or about January 13,
2015, the trial concluded with a verdict wholly in favor of Con Ed (SAC, if,I59-60).
Plaintiffs allege that they did not prevail in the underlying personal injury action because their case had not been properly prepared for, or presented at, trial. They fault their attorneys for failing to present certain available expert and non-expert evidence at trial to demonstrate Con Ed’s liability. Plaintiffs contend that if such evidence had been properly presented at trial, a verdict in their favor would have resulted (id. 1169-70).

For example, plaintiffs allege that there were certain marks left on GinaMarie’s shoes and the tire of GinaMarie’s car, both of which were caused by the electrical strike incident, but their trial attorneys failed to call a forensic expert to establish that these marks were “indicative of contact with high voltage/high amperage electricity” (id. 172). Plaintiffs also allege that trial counsel failed to call a physician to establish that GinaMarie’s injuries were consistent with an electrical shock, and an expert on electricity to establish Con Ed’s causation and fault in GinaMarie’s injury (id. 1~!73-74). Plaintiffs also fault trial counsel for failing to call non-expert witnesses, such as Daniel DeFranco (Daniel) to testify about, among other things, the particulars of GinaMarie’s accident and her resulting injuries, and for failing to call witnesses present at the
scene of the accident, including “emergency first responders” (id. i!178-80).”

“Napoli Defendants argue that dismissal of the SAC is warranted because plaintiffs’
allegations of malpractice are no more than unfair “second-guessing” of their trial strategy. Napoli Defendants also argue that plaintiffs have failed to properly plead that their alleged negligence was the “but for” causation of their alleged damages. Finally, Napoli Defendants argue that claims asserted individually against NBRS partners Paul Napoli and Marc Bern are barred by Section 26(b) of New York’s Partnership Law.

As to the first point, the affidavits that plaintiffs submitted in opposition are sufficient to
remedy the problems with their allegations in the SAC with respect to Napoli Defendants. In her affidavit, GinaMarie identifies several e-mail exchanges she had with attorneys Paul Napoli and Vincent Gonzalez of NBRS. In the earliest chain, dated June 4, 2012, Mr. Napoli told GinaMarie that he had discussed her case with Mr. Gonzalez “a number” of times, that they were putting the case together for trial, and that they had “engaged several experts to assist” them (GinaMarie aff [NYSCEF Doc No. 145], ~10 and ex A thereto).

In the second chain, begun on the morning of November 24, 2014, GinaMarie e-mailed
Mr. Gonzalez, a senior associate attorney ofNBRS, seeking information about the status of her case. Mr. Gonzalez responded the next day, apologized for the delay, and explained that he had “a medmal trial [ dropped] in [his] lap with no advance notice. Everything came to a halt” (id 11) and ex B thereto). Mr. Gonzalez also complained about the “shenanigans” going on at his law firm, which made conditions so difficult that “[i]t takes weeks to get a simple $45 check” (id ,i12). GinaMarie explained that she believed Mr. Gonzalez was referring to how the dissolution ofNBRS was adversely “affecting the day-to-day operation of the law firm” (id ,i,i12-13). GinaMarie stated that she suspects that these difficulties were the reason no experts were called to testify at her trial, even though Mr. Napoli had told her back in 2014 that experts had already been engaged (id. ill3).

In the third chain, beginning on Tuesday, January 6, 2015, Mr. Gonzalez e-mailed
plaintiffs to inform them that he had begun to pick a jury, and that he expected the trial to begin on that Thursday, January 8, and so wanted to meet with GinaMarie on Wednesday morning, to prepare her as the first witness (id. ,14 and ex C thereto). GinaMarie recalled that she had not met Mr. Gonzalez before this meeting, held the day before trial, and that the meeting lasted about an hour (id 115). GinaMarie responded, confirmed their Wednesday meeting, and asked whether she should bring anything, such as the shoes she wore the day of the accident (which bore a “swirl mark” from the shock she received), the tire from her car, which was also marked by the shock, or empty pill bottles for the medication she was taking. Mr. Gonzalez replied:
“As I explained to you before, we need to establish LIABILITY. Without liability
there is no case. Therefore, all the pills in your medicine cabinet won’t help. As you
already know, we don’t have an expert on the issue of defective or inadequate
transformer or improper maintenance and repair. That leaves us with Res Ipsa
Loquitur and the possibility that overgrown tree branches caused the wires to be
pulled from the transformer. We will discuss our options on Wednesday. The
eyewitnesses have been subpoenaed ….
We will need the doctors for Wednesday and Thursday of next week. No excuses.
Dr. Sharon and Shiau both have to testify if we get to that point. We can call
additional doctors but Sharon and Shiau are absolutely necessary.

I will have Kenia contact them tomorrow. However, I recommend that you speak
with them and make sure they know they have to appear. We are not going to get
another chance. This trial will be concluded by the end of the month”
(id. ,i,i 16-19 and ex C thereto [emphasis in original]).

In the last e-mail in this chain, Mr. Gonzalez instructed GinaMarie on what she should
bring with her to Court. He also stated that her “biggest obstacles are to explain how you drove to your house from the scene and you can’t remember; why you left the scene; why you didn’t go to the hospital on the day of the incident; how you got shocked” (id. ex C). Among other things, GinaMarie stated that although Mr. Gonzalez noted that Drs. Sharon and Shiau would “absolutely have to testify,” they were never called at trial (id. ,it 7), and that she believes that had the doctors testified about how electric shock caused her injuries, they would have succeeded in establishing liability at trial (id.). She also asserted that plaintiffs would have likely prevailed if the experts Mr. Napoli claimed to have engaged had been used at trial (id. ,II 0), or if she had been afforded more time to prepare her testimony (id. ,r15).”