Gail S Kelner

January 24, 2012 | New York Law Journal

In their Trial Practice column, Robert S. Kelner senior partner at Kelner & Kelner, and Gail S. Kelner and Joshua D. Kelner of the firm, write that in recent years the judiciary has, through case law, created a Byzantine array of technical and evidentiary hurdles that plaintiffs must surmount to show that their injuries are "serious."

By Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner

12 minute read

November 22, 2011 | New York Law Journal

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner & Kelner analyze a recent significant decision from the Court of Appeals that held that recovery is not precluded where plaintiff and the base of the falling object stood on the same level, repudiating the body of Appellate Division decisional law spawned by the Court's 1995 holding in Misseritti v. Mark IV Construction Co.

By Robert S. Kelner and Gail S. Kelner

13 minute read

July 23, 2013 | New York Law Journal

In their Trial Practice column, Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner of Kelner & Kelner discuss why self-funded ERISA plans are not subject to the prohibition on health care plans' asserting claims for reimbursement or subrogation claims against personal injury plaintiffs' recoveries; what rights these plans have; and what personal injury practitioners should be aware of when representing a client covered under such a plan.

By Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner

12 minute read

March 26, 2013 | 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 there are occasions when, despite a party's best and most diligent efforts, it is not ascertained until after the statute of limitations has expired that a necessary party defendant is missing from the litigation.

By Robert S. Kelner and Gail S. Kelner

15 minute read

November 27, 2012 | New York Law Journal

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner & Kelner write: A less common but significant issue in some Labor Law §240(1) cases is whether the work that resulted in injury was being performed on a "building or structure" within the scope of the statute. While the term "building" speaks for itself, a review of existing case law shows that the term "structure" has been interpreted broadly.

By Robert S. Kelner and Gail S. Kelner

13 minute read

May 28, 2013 | New York Law Journal

In their Trial Practice column, Robert S. Kelner, the senior partner at Kelner & Kelner, and Gail S. Kelner, an attorney with the firm, write that even as the courts have recognized that there are occasions when the worker is solely to blame, those occasions are rare and have been carefully distinguished from a worker's comparative negligence, which is not a defense.

By Robert S. Kelner and Gail S. Kelner

13 minute read

March 27, 2012 | New York Law Journal

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner & Kelner review decisions demonstrating the broad discretion the courts have to to ensure an aggrieved party is not unfairly disadvantaged in proving its case or defending its actions, whether that is by striking a pleading, issuing an adverse inference charge, precluding testimony or other sanctions.

By Robert S. Kelner and Gail S. Kelner

14 minute read

July 24, 2012 | New York Law Journal

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner & Kelner write that although comparative negligence, no matter how extreme, is not a defense to liability under Labor Law §240(1), the courts have recognized a very limited defense based on the rare situation when a worker refuses to use provided safety devices. However, the defense is commonly interposed by defendants, even where plaintiff's actions visibly constitute, at worst, comparative negligence.

By Robert S. Kelner and Gail S. Kelner

13 minute read

September 27, 2011 | New York Law Journal

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner & Kelner discuss how alternative litigation funding may permit an indigent person to pursue true justice, and how the courts have not found client-based ALF transactions to be champerty.

By Robert S. Kelner and Gail S. Kelner

10 minute read

July 26, 2011 | New York Law Journal

In their Trial Practice column, Robert S. Kelner, senior partner at Kelner & Kelner, and Gail S. Kelner, an attorney at the firm, write that New York's courts are attempting to resolve any conflicts between federal immigration law and state law in a manner that safeguards all workers and deprives employers of incentives to violate the safe workplace mandates of the Labor Law.

By Robert S. Kelner and Gail S. Kelner

12 minute read