Associate Tom Daly Doubles Down with 2 Pre-Discovery Dismissals.

Associate Thomas Daly has successfully obtained a stipulation of discontinuance in a Labor Law action. The client, a construction contractor based in Bronx County, was mistakenly identified as a defendant due to a bid proposal submitted for a construction project. The client's bid was never accepted by the general contractor, and consequently, the client did not undertake any work at the site in question. Tom conducted a meeting with the client and subsequently prepared an affidavit confirming the client's lack of involvement at the project location where the plaintiff sustained injuries. Although the action had recently been consolidated with two related cases, Tom was able to obtain the plaintiff's agreement to discontinue the action prior to any co-defendants filing crossclaims against our client in the newly consolidated matter. The stipulation of discontinuance was then duly ordered by a Justice of the Bronx County Supreme Court.

In another matter, Tom secured another pre-discovery stipulation of discontinuance in a premises liability case involving two clients of the firm. The clients in this sidewalk slip and fall lawsuit included a corporate landowner located in Kings County and an individual shareholder of that corporation. Our office filed its appearance in March 2024 and promptly engaged an investigator to conduct a property boundary survey. Following the acquisition of an affidavit from the client, Tom effectively utilized the property survey to persuade opposing counsel that the plaintiff's injury actually took place on an adjacent property. A few weeks later, the plaintiff's counsel consented to discontinue the entire action against both clients.  

Life-cycle is a Key Performance Indicator the firm uses as a measure of success for our clients and Tom’s success in both of these matters demonstrates the benefits of a metric-based approach to litigating claims.
#BMMWINS #bmmfirm

Ryan Rayder and Tom Daly Grant Summary Judgment Motion in a Supreme Court, Kings County, Labor Law Matter.

Congratulations to Ryan Rayder, Esq. and Thomas Daly, Esq., who successfully worked as a team and secured a dismissal in a very challenging employer’s summary judgment motion in a Supreme Court, Kings County, Labor Law matter involving alleged injuries to plaintiff’s eye (vision loss), cervical, thoracic, lumbar spines (discectomy), shoulder and closed head injuries.

Their persistence and attention to detail prevailed, although they were obliged to surmount a number of obstacles in order to do so  - not the least of which was overcoming the Court’s initial improper application of the law as to the proper timing for such motions. The Court ultimately reversed its initial decision and acknowledged having improperly applied Brill to defeat the motion in the first instance. This decision confirms that an attorney’s affirmation, coupled with exhibits, can indeed suffice to establish a prima face case on summary judgment (citing to State v. Greco, 43 A.D.3d 397 [2d Dept 2007]. Ryan and Tom presented evidence indicating that our insured was plaintiff’s employer (the prior Worker’s Compensation determination having been binding on that point) and thus was entitled to dismissal of all causes of action seeking common law indemnification and/or contribution. As no opposing party came forward with any pertinent contractual provisions, the Court stated that “a defendant moving for summary judgment is not required to prove a negative” (citing to Martinez v. Hunts Point Coop. Mkt., Inc., 70 A.D.3d 569 [1st Dept. 2010], noting the burden of proof had then shifted to the opposition. Absent same, there was no right to indemnification from the employer, and thus, the entire third-party action and all cross-claims against our client were dismissed.

At BMM, close teamwork is not the exception but the rule – and, once again, it paid off! Congrats to Ryan and Tom!

Associate Tom Daly Prevails on Another Motion for Summary Judgment

Barry McTiernan & Moore LLC prevails on yet another motion for summary judgment, extricating our client prior to the start of multiple defendants’ depositions!
Over the opposition of both plaintiff’s counsel and a co-defendant, upon oral argument, the Court agreed with our defense position, as admirably contended by Tom Daly, Esq. of this firm, that our motion was not premature and that the client’s supporting affidavit was not “self-serving.” Tom established that we had made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient and admissible evidence to eliminate any material issues of fact from the case.
Lifecycle and aggressive motion practice on cases in which our clients do not belong are two KPIs upon which the firm consistently focuses, resulting in excellent results for our clients.

Associate Tom Daly Secures Voluntary Pre-Discovery Discontinuance

Associate Tom Daly was recently successful in obtaining all parties’ consent to voluntarily discontinue an action, as against Barry, McTiernan & Moore’s client in a case where the plaintiff claims to have been injured in a construction accident. Through persistence and continued effort, Tom was able to successfully argue that the firm’s client was an improper defendant in this action, and thus all parties agreed to discontinue.  

 Since the discontinuance occurred before any significant discovery or depositions took place, Tom was able to save our client significant time and expense in defending the case.

At Barry McTiernan & Moore, a case’s life cycle is an integral performance indicator, and this case is an example of the proactive measures the firm takes to resolve issues of law at an early stage. Attorneys like Tom are helping to lead the way!

Congratulations to Tom Daly and Alexander Fagone for Passing the Bar Exam.