Gail S Kelner

January 27, 2009 | New York Law Journal

Robert S. Kelner, senior partner at Kelner and Kelner, and Gail S. Kelner, an attorney with the firm, write that ultimately, the decision in D'Onofrio v. City of New York is a cautionary warning that the prior written notice provided to the city must accurately describe the sidewalk defect which subsequently gave rise to injury. Although nothing in the decision negates the validity of the Big Apple Pothole and Sidewalk Protection Committee maps in general, if the lower courts follow the analysis employed by the Court of Appeals, significant discrepancies between the condition on the map and the defect established by the claimant may result in a dismissal rather than the submission of ambiguities to the jury for resolution.

By Robert S. Kelner and Gail S. Kelner

14 minute read

May 25, 2010 | New York Law Journal

In their Trial Practice column, Robert S. Kelner, senior partner at Kelner & Kelner, and Gail S. Kelner, an attorney with the firm, write that Appellate Division decisional law shows a divergence on whether the doctrine of primary assumption of the risk should be limited to voluntary participation in sporting or recreational activities or applied more broadly. The inconsistency has recently been at least partially addressed by the Court of Appeals.

By Robert S. Kelner and Gail S. Kelner

12 minute read

July 31, 2009 | New York Law Journal

Robert S. Kelner, the senior partner at Kelner and Kelner, and Gail S. Kelner, an attorney with the firm, write that although examinations of plaintiffs in personal injury actions by physicians chosen by the defendants are often referred to as independent medical examinations, there is nothing "independent" about them. They are clearly part of the adversarial process and can be one of a defendant's most potent discovery devices. As such, plaintiff's counsel must approach these examinations with vigilance as an advocate for the client.

By Robert S. Kelner and Gail S. Kelner

13 minute read

September 24, 2009 | Legaltech News

Plaintiffs in personal injury actions need to know defendants might view their social networking pages -- even private restricted sites. Attorneys Robert S. Kelner and Gail S. Kelner look at existing legal principles to control potential abuse of social networks by aggressive adversaries.

By Robert S. Kelner and Gail S. Kelner

13 minute read

March 25, 2002 | New York Law Journal

A conservative wind is blowing in recent decisions scrutinizing plaintiffs` proof of injuries in automobile accident cases on threshold dismissal motions. The courts have shown an increasing propensity to summarily dismiss these cases for failure to establish a prima facie case of a "serious injury" under the no-fault law and to even make findings of fact in reaching these decisions.

By Robert S. Kelner And Gail S. Kelner

13 minute read

September 28, 2010 | New York Law Journal

In their Trial Practice column, Robert S. Kelner, senior partner at Kelner & Kelner, and Gail S. Kelner, an attorney with the firm, discuss the emergency doctrine, what comprises a qualifying emergency and the impact of defendant's actions on the availability of this defense to liability.

By Robert S. Kelner and Gail S. Kelner

13 minute read

March 25, 2008 | New York Law Journal

Robert S. Kelner, senior partner at Kelner and Kelner, and Gail S. Kelner, an attorney with the firm, write that although the courts permit attorneys wide latitude to determine the content of their summations, it is not a blank check. In an effort to paint the appropriate picture, counsel must be extraordinarily careful not to cross certain lines which could result in reversal of a favorable verdict.

By Robert S. Kelner and Gail S. Kelner

14 minute read

May 16, 2006 | New York Law Journal

Robert S. Kelner, senior partner at Kelner and Kelner, and Gail S. Kelner, an attorney with the firm, write that a missing witness charge may be significant in personal injury actions where a physician who might naturally be expected to testify for one of the parties is absent from the trial. The adverse inference that the charge permits may seriously undermine an adversary's case. It is crucial in preparing for trial to anticipate whether the absence of a medical witness will invoke this damaging charge.

By Robert S. Kelner and Gail S. Kelner

13 minute read

September 25, 2007 | New York Law Journal

Robert S. Kelner, the senior partner at Kelner and Kelner, and Gail S. Kelner, an attorney with the firm, write that the lesson to be learned from the evolving case law is that plaintiffs should be slow to exclude either the city of New York or the private abutting landlord unless and until it is very clear from the facts and the law that only one is a proper defendant.

By Robert S. Kelner and Gail S. Kelner

14 minute read

January 22, 2008 | New York Law Journal

Robert S. Kelner, senior partner at Kelner and Kelner, and Gail S. Kelner, an attorney with the firm, write that although participants in sports are deemed to have consented to those commonly appreciated risks which are inherent in the nature of the activity, they do not assume concealed or unreasonably increased risks nor risks that result from the defendant's reckless or intentional conduct. These concepts were recently examined in two decisions, one at the trial court and one at the appellate level.

By Robert S. Kelner and Gail S. Kelner

14 minute read