At Gerber Ciano Kelly Brady, we fight hard for our clients—and we do not stop at an adverse decision. When trial courts get it wrong, we take the fight to the Appellate Division and deliver results.
Two recent appellate victories in the Second Department highlight exactly that kind of commitment and skill. In both matters, Gerber Ciano Kelly Brady Partners, Kristin Moro and Jeffrey Migdalen, stepped into post judgment and secured meaningful wins for our clients.
Battle v. Fulton Park
In Battle v. Fulton Park, the plaintiff claimed he was injured while exiting a building owned or operated by our clients, alleging that the glass in a door shattered when he pushed it open. On the same day as the incident, an employee of our client’s security company reviewed surveillance footage and prepared an incident report stating that the plaintiff had punched the glass, causing it to break.
Although the incident report was preserved, the surveillance footage itself was automatically erased in the normal course of business—well before any lawsuit was commenced. When the employee was later deposed, he testified that while she no longer recalled the incident independently, the report accurately reflected her observations at the time.
The plaintiff moved for spoliation sanctions, and the trial court granted the most extreme remedy: preclusion of any evidence derived from the surveillance footage, including the employee’s observations, both at trial and on summary judgment.
On appeal, the Appellate Division agreed with Kristin Moro that preclusion was an excessive sanction. The Court held that the Supreme Court improvidently exercised its discretion and that, at most, a negative inference—not wholesale preclusion—was appropriate. As a result, our insured will now be able to present the security company witness at trial, introduce the incident report, and allow the jury to weigh all of the evidence, including statements attributed to the plaintiff that he was injured when he punched the glass.
Mainardi v. Imperial Towers
In Mainardi v. Imperial Towers, the Second Department affirmed a defense verdict obtained by Jeff Migdalen and Kristin Moro in Supreme Court, Richmond County, following a September 2023 liability trial.
Although the jury found that the defendants were negligent, it unanimously concluded that their negligence was not a substantial factor in causing the plaintiff’s fall. The plaintiff appealed, arguing that the verdict was contrary to the weight of the evidence.
The Appellate Division rejected that argument, holding that the evidence supported the jury’s conclusion. The record demonstrated that the plaintiff was aware of the height differential before the fall and admitted that she lost her balance and that the fall was her own fault. The verdict stood.
Results That Matter
These are two significant wins from the Appellate Division, Second Department—and they reflect who we are. Aggressive advocacy disciplined appellate strategy, and an unwavering focus on our clients’ interests are in our DNA.
If you are facing serious exposure and need a team that knows how to win at trial and on appeal, we are ready to show you what GCKB can do.
