U.S. District Court, Western District of New York Case Summaries:

U.S. District Court, Western District of New York

Judge TelescaDisqualification of CounselJudge FoschioRuling: Plaintiff's motion for summary judgment is granted. The court finds that the Redland policy unambiguously and permissibly excludes Gibraltar from coverage. Accordingly, Gibraltar has failed to establish that it was considered "insured" under the policy. The court also finds that Redland has no duty to indemnify Washington for his injuries.Anthony J. Piazza, of Hiscock & Barclay LLP, for the plaintiff and Leonard D. Zaccagnino, of Shaw & Shaw, P.C., for defendant WashingtonPlaintiff asserts defendants' failure to timely treat plaintiff and provide reasonable accommodations for his handicap violates plaintiff's rights under Title II of the Americans with Disability Act. As to certain of the defendants, plaintiff raises Eighth Amendment claims of deliberate indifference to a medical need. Defendants now move to disqualify Duke Holzman. Defendants contend that disqualification is warranted based on the possibility that Dr. Christopher Ritter, an ECMC orthopedic surgeon who treated plaintiff at ECMC, and as a brother of a member of the Duke Holzman firm, may be called to testify as a fact witness, and that such testimony would be more favorable to plaintiff than would otherwise be the case.In denying plaintiff's application for disability benefits, defendant determined plaintiff has the severe impairments of tendonitis and poly-peripheral neuropathy, but does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. Defendant also determined that although plaintiff's limitations diminish her ability to perform a full range of light work, plaintiff had the residual functional capacity to perform the representative occupations of bench assembler, packager, charge account clerk and order clerk within twelve months of the alleged onset date. The plaintiff was found to be not entirely credible.Marullo v. Astrue, 08-CV-818Amanda R. Jordan, of the Law Offices of Kenneth Hiller, for the plaintiff and Kevin D. Robinson, Assistant U.S. Attorney, for the defendantBackground: Judge Foschio issued a report and recommendation on the disposition of this case, which is now before Judge Arcara. The plaintiff is seeking judicial review of an administrative denial of benefits. Specifically, plaintiff Mary E. Marullo seeks review of the defendant's decision denying her Supplemental Security Income under Title XVI of the Social Security Act. Plaintiff, was born on May 17, 1980, has a high school education, one year of college and has previously worked briefly as a dishwasher and nursing home aide, but has no past relevant work experience relative to her disability claim benefits.The court denies the motion for disqualification on the basis that it is mere speculation and it observes that "it is unlikely that Dr. Ritter's probable loyalty to his employer, ECMC, would be overridden by any familial bond with his brother whose firm is serving as pro bono counsel to a prisoner such as Plaintiff. If anything, it is Plaintiff who may need to be concerned with the possibility that any favorable testimony, particularly opinion testimony by Dr. Ritter supporting Plaintiff's claims, could be subject to a credibility challenge based on Dr. Ritter's relationship to Plaintiff's assigned law firm."Ruling: The court notes that defendants did not point to any provision of the New York Rules of Professional Conduct implicated by the relationship at issue here; the court's "perusal of the Rules reveals no provision that directly or indirectly supports Defendants' theory of disqualification." However, cases have held that a sibling relationship between a prosecutor and a prospective witness in a criminal case was insufficient to require disqualification and appointment of a special, i.e., different, prosecutor.Bernadette J. Clor, of Duke Holzman Photiadis & Gresens, LLP, for the plaintiff and Kim S. Murphy, Assistant NYS Attorney General, for the defendantsRedland contends that based on its insurance policy issued to Anstrom, it has no duty to defend any person or entity against liability for bodily injury or property damage arising out of the accident, and asks this court to award it costs of suit and attorney's fees. Redland moves for summary judgment on the grounds that there are no material issues of fact in dispute, and that it is entitled to summary judgment as a matter of law. Defendants Anstrom, Gibraltar and Washington do not oppose plaintiff's motion for summary judgment.Judge ArcaraWashington brought a personal injury action in New York State Supreme Court against Anstrom and Gibraltar for injuries he allegedly sustained in an accident at Gibraltar's facilities while delivering a load of steel coils for Anstrom. When Washington brought the load to Buffalo, Gibraltar employees unloaded the coils from the flatbed truck with a crane as Washington watched from the back of the truck. As the crane was lifting the last of the coils from the flatbed, the Gibraltar employee dropped the coil back onto the flatbed. As a result of the impact, Washington was thrown into the air and then back onto the trailer's surface causing him to suffer bodily injury.Ruling: Judge Foschio recommended that the defendant's motion to dismiss the complaint be granted as the ALJ's decision was based upon substantial evidence. Now, Judge Arcara adopts those recommendations and grants the defendant's motion for judgment on the pleadings thereby dismissing the complaint.Background: In this prisoner pro se case, plaintiff alleges, beginning in March 2008, deliberate indifference to his serious physical problems stemming from defendants' failure to treat a wound to plaintiff's left thigh and complications associated with the amputation of plaintiff's left leg below the knee and use of a prosthetic device. The pleadings do not reveal whether the amputation and left thigh wound occurred while plaintiff was incarcerated, rather, plaintiff alleges Defendants Greco and Bangsil, while serving as physicians at the Gowanda Correctional facility, failed to treat plaintiff's wound and complications associated with his prosthetic device such as pain, sores, excess drainage, infection and other injuries.Adams v. McNamara, 08-CV-832Background: In this declaratory judgment action, plaintiff Redland Insurance Co. seeks a determination that it is not obligated to defend against liability or indemnify defendants Anstrom Cartage Co., its insured, Gibraltar Steel Corp., a third party to which Anstrom provided delivery services, and Willie Washington, a truck driver for Anstrom.InsuranceRedland Select Insurance Co. v. Washington, 08-CV-6222

Bernadette J. Clor, of Duke Holzman Photiadis & Gresens, LLP, for the plaintiff and Kim S. Murphy, Assistant NYS Attorney General, for the defendants