Cases of Interest

General Casualty Insurance Company v. Kerr Heating Products (A.D. 2d Dep't, April 2008): The Appellate Division, Second Department, held that homeowners have a valid claim against an oil tank manufacturer for property damage due to corrosion and leakage, even though they were in exclusive control of the subject tank. KLA's Beth Rogoff, Esq., represented the insurance company on behalf of the property owners and against the manufacturer.

Jones v. XYZ Insurance (Supreme Court, Suffolk County, July 2007): In this bad faith litigation, KLA obtained a settlement well in excess of the policy limits from an insurance company that initially refused to cover its insured who suffered total loss of his primary residence due to fire. The carrier relied upon certain "misrepresentations" on the insured's application, but KLA convinced its representatives that these errors were not "material" in the decision to offer coverage in the first place and that the disclaimer could yield a bad faith award in excess of the agreed upon settlement. A confidentiality agreement prohibits disclosure of the parties' identities. Josh H. Kardisch, Esq., represented the homeowner.

Mandala v. Mandala (Supreme Court, Nassau County, October 2005): A trial court held that an attorney-in-fact cannot do that which the principal was without power to do before his death; thus, where an individual is bound by a divorce decree to maintain life insurance for the benefit of offspring with his first wife, his new wife cannot utilize her power of attorney to replace herself as beneficiary. Bonnie Link, Esq., represented KLA's six-year old client and collected a $750,000 judgment on his behalf.

Fox v. Mills (Supreme Court, Queens County, September 2005): KLA obtained a $450,000 settlement for a 67-year old woman who was attacked by a dog, enabling the client to purchase a home for the first time and live closer to her children and grandchildren. KLA uncovered and successfully argued for the applicability of insurance coverage that the dog-owner maintained in her capacity as a visiting nurse. Josh H. Kardisch, Esq., represented the plaintiff and negotiated the settlement after jury selection.

Allianz Insurance v. Lerner, 416 F.3d 109 (2d. Cir. 2005): In this case, KLA's client leased a car pursuant to an agreement that made her responsible for any loss that the lessor might sustain. While driving the vehicle, the client was involved in an accident, and her insurance company, Allstate, defended the personal injury lawsuit, ultimately paying the limits of its policy in a negotiated settlement. The leasing company contributed to the settlement as well and sued KLA's client pursuant to the above lease provision. Allstate refused to defend its insured in this suit (arguing that it was a breach of contract action, not one based upon the covered loss), and the client incurred considerable legal fees which she sought to recoup by bringing the insurance company into the lessor suit. The trial court dismissed the client's claim that Allstate breached its duty to defend her. The Second Circuit Court of Appeals reversed, stating that since the underlying personal injury suit against the lessee was the "result of a covered auto accident", the carrier had improperly withdrawn its defense against the lessor's claim for indemnification. KLA obtained reimbursement of the client's legal fees.

Anchors Edge Owners' Corp. v. TCM, et al. (Supreme Court, Nassau County, November 2004): KLA represented a group of cooperative owners in a challenge to a Board election, and persuaded a Nassau County court that certain owners violated the By-Laws and New York State Election Law. The court ordered another election of officers.

Nationwide Mutual Insurance Company v. Louisa Cooper, (Supreme Court, Nassau County, 2002): In this case, an automobile insurer disclaimed coverage for uninsured benefits because KLA's client "failed" to timely complete and return a "Proof of Claim" form. The court held that the 26-page questionnaire "went far beyond what is required by the insurance contract," and that the insured did not forfeit her right to arbitrate by failing to timely complete and submit same. Partner Bonnie Link, Esq., represented the insured.

Tejada v. City of New York, 309 A.D.2d 676, 765 N.Y.S.2d 866 (1st Dep't. 2003): In a case of first impression, the Appellate Division, First Department, held that: 1) an out-of-possession owner without the right or duty to enter and repair was not subject to liability for injury resulting from a lead-based paint condition in the building; 2) plaintiffs never provided the realty company with the requisite notice of the presence of a young child on the premises, and; 3) whatever notice the lessee might have had could not be imputed to the out-of-possession owner. KLA's Josh H. Kardisch, Esq., and Beth L. Rogoff, Esq., represented the building owner.

Rodriguez v. Quensel, Index No. 8534/99 (Supreme Court, Westchester County, 2002): A trial court dismissed a lead poisoning case against KLA's client, stating that plaintiff had failed to demonstrate that defendant-landlord had knowledge of the age of the building in which the subject child resided.

Sanchez v. Khemraja, et. al. (Supreme Court, Kings County, Index No. 9089/97, 2001): A trial court granted attorney Beth Rogoff's motion to exclude certain evidence and precluded plaintiffs' neuropsychologist from testifying in lead poisoning case involving two children. Plaintiffs' counsel demanded $1.9 million to settle before trial, the jury only awarded $250,000, and the judge struck plaintiffs' medical doctor's testimony and reduced the total award to $150,000.

Cantave v. Peterson, 266 A.D.2d 492, 698 N.Y.S.2d 721, 1999 N.Y. App. Div. LEXIS 12302 (2d Dep't. 1999): Based upon attorney Bonnie Link's motion, the Appellate Court allowed defendant to amend his answer to assert claims against plaintiff based upon allegations that she painted the subject apartment and failed to seek prompt medical attention for children who were allegedly exposed to and harmed by lead-based paint, since those claims could demonstrate comparative negligence.

Calderin v. Bruno Trucking (Eastern District of New York, 1999): Josh H. Kardisch, Esq., obtained a jury verdict on behalf of the employer in an age and race discrimination lawsuit, in which plaintiff had asked the jury to award his client $2.5 million.

Elkman v. Southgate Owners Corp., 246 A.D.2d 314; 668 N.Y.S.2d 11 (1st Dep't. 1999): The Appellate Division, First Department, held that a fish retailer was entitled to summary judgment on landlord's third-party claim against it for contribution because the complaining tenant (actress Linda Gray), sought only damages for economic loss, but that the trial court properly sustained landlord's indemnification claim. Josh H. Kardisch represented the retailer.

Gomez v. Grand Rapids (Supreme Court, Bronx County, Index No. 13578/97,1998): A trial court granted summary judgment dismissing a lead poisoning case against Josh Kardisch's client because plaintiff failed to prove a harmful exposure in defendant's premises. Court also rejected plaintiffs' medical and environmental science experts as "speculative."

While an associate and a partner at another law firm, Josh H. Kardisch, Esq., participated in the following reported cases that yielded favorable decisions for the client:

New York State Department of Environmental Conservation v. Breezy Point Cooperative Assn., Supreme Court, Albany County (1992): In a case of first impression in the State of New York, a trial court in Albany County held that companies which contract with the State to remediate hazardous waste sites are immune from "excessive cleanup" suits brought by primarily responsible parties/ land-owners. The court held that independent contractors acting in this capacity are "agents" of the State and are therefore protected by the Navigation Law. Mr. Kardisch wrote the argument that convinced the court to dismiss the suit against his firm's client, the environmental contractor.

Keenan v. The Dow Chemical Company, 717 F. Supp. 799 (M.D. Fla 1989): A Federal Court of Appeals in Florida held that the Federal Insecticide and Rodenticide Act expressly preempt state court lawsuits based upon alleged inadequate warnings on pesticides. Mr. Kardisch worked on the team that represented the chemical company and wrote the successful Brief.

Viterbo v. The Dow Chemical Company, 826 F.2d 420 (5th Cir. 1987): A Federal Court of Appeals in Louisiana held that a District Court in Texas had correctly dismissed a claim of deleterious exposure to phenoxy-herbicides because plaintiff's expert's opinions were shrouded in a "false aura of scientific infallibility", and were non-probative, speculative and inadmissible. Mr. Kardisch worked on the Brief that yielded a favorable result for the chemical company.

Citibank N.A. v. Kollen, 162 Misc. 2d 883, 618 N.Y.S.2d 993, 1994 N.Y. Misc. LEXIS 499 (Supreme Court, Suffolk County, 1994): Court held that service of process in a foreclosure action against a trust was properly accomplished where the trustee was an individual and the CPLR referred to the service of process on an individual. Mr. Kardisch represented Citibank.

H&R Indus. v. Kirshner, 899 F. Supp. 995 (E.D.N.Y. 1995): A Federal Court in New York stated that plaintiffs' claims of product infringement and false advertising under the Lanham Act, as well as State tort claims of, inter alia, unfair competition, raised sufficient factual issues to go to a jury. Mr. Kardisch represented the defendant.