Edward Lomena

Edward Lomena

Attorney Profile

Top Rated Personal Injury Attorney in Colorado Springs, CO

McDivitt Law Firm PC
 | 19 East Cimarron Street, Colorado Springs, CO 80903
Phone: 719-471-3700
Selected To Super Lawyers: 2019 - 2020
Licensed Since: 2013
Practice Areas:
  • Personal Injury - General: Plaintiff (50%),
  • Civil Litigation: Plaintiff (30%),
  • Personal Injury - Products: Plaintiff (10%),
  • Class Action/Mass Torts: Plaintiff (10%)
Languages Spoken:
  • English,
  • Spanish
Attorney Profile

I grew up in New York City. I decided to become a lawyer after I had a bad experience of with an attorney. I was young when a family friend referred me to a lawyer who seemed to want to help. It turned out they didn’t, and I could never get in touch with them. It was a difficult process and it ended up hurting me. I realized I could do a better job than that. I pursued a career in the law, vowing to do good work for my clients.

I thought I would go into corporate law, but realized I wouldn't be helping any one and I later fell in love with trial law. The judges at one of my trial law competitions in school asked me to join their new firm when I graduated. It happened to be a personal injury firm and I have been practicing personal injury law ever since. Along the way, in my ten plus years as an attorney, I represented the insurance companies in personal injury cases. During that time, I personally handled multiple seven to ten figure cases and tried multiple defense cases. I was licensed in New York State in 2006 and have maintained that license.  In 2013 I moved to Colorado Where I was licensed in 2013 to the present.

Now that I work for Plaintiff's I use my experience as a Defense attorney to help prepare my cases. I know where the Insurance companies are coming from and I can explain to my clients how the insurance companies work. A lot of clients, when they come through my door are broken. They have been through a lot and the insurance companies are bullying them. They dont know what to do. They come to me to even the score. That is what I  aim to do for my clients. I want my clients to know they are working with someone who has their back. I want to bring them back to a position of power.

In 2015 and 2016, I was named one of the top 40 trial attorneys under 40 by the National Trial Lawyers Association.

In 2016 and 2017 I was named one the top 25 Mass Tort attorneys by the Mass Tort Trial Association

In 2017 and 2018 I was named one of the top 10 Personal Injury Attorneys in the State of Colorado by the National Association of Personal Injury Atorneys.

In 2017 I was named one of the 10 Best Personal Injury Attorneys  for Client Satisfaction in Colorado.

 In 2017 and 2018 I was named one of the top 100 Trial Attorneys by the National Trial Lawyers Association.

Finally, I am a life time member of the Multi-Million dollar and Million dollar Advocates Forum.

About Edward Lomena

Admitted: 2013, Colorado

Professional Webpage: http://mcdivittlaw.com/edward-lomena/

Honors/Awards:

  • 2019 National Trial Lawyers Association Top 100, National Trial Lawyers Top 100, National Trial Lawyers, 2019
  • American Institute of Personal Injury Attorneys 10 Best Attorneys, 10 Best Attorneys, American Institute of Personal Injury Attorneys, 2019
  • National Trial Lawyers Top 40 under 40 Trial Lawyers-2016
  • Top 25 Motor Vehicle Trial Lawyer, Top 25 Motor Vehicle Trial Lawyer , The National Trial Lawyers Motor Vehicles Trial Lawyers Association, 2019
  • 10 best Personal Injury Attorneys  for Client Satisfaction, American Institute of Personal Injury Attorneys, 2017
  • National Trial Lawyers top 25 Motor Vehicle Trial Lawyers, 2017
  • Top 100 Litigation Lawyers in the State of Colorado, The American Society of Legal Advocates, 2018
  • Top 100, The American Society of Legal Advocates, 2018
  • Top 40 Trial Lawyers under 40, The National Trial Lawyers, 2015
  • Life time member of Million Dollar Advocates Forum, 2017
  • Top Attorney AVVO rating.
  • Top 50 verdicts in the State of Colorado. Jackson v. Scott and Rice. (#29), Top 50 US Verdicts, 2016
  • Top 10, National Lation Trial Lawyers, 2017
  • Top 100, National Trial Lawyers Association, 2018
  • Attorney and Practice Magazine's Top 10 Personal Injury Attorney, Attorney and Practice Magazine, 2018
  • Mass Tort Trial Lawyers Association Top 25 - 2016
  • Top 10 Personal Injury Attorney in Colorado, National Academy of Personal Injury Attorneys, 2017
  • International Top 100 Lawyer, International Top 100 Magazine, 2017
  • Elite Member, Elite Lawyers of America, 2017
  • Top 10, National Academy of Personal Injury Attorneys, 2018
  • Top 100 Trial Lawyers, National Trial Lawyers Association, 2017
  • Life time membe of Multi-Million Dollar Advocates Forum, 2017

Special Licenses/Certifications:

  • Certified Foster Parent in Arapahoe, Douglas and Jefferson County., 2018
  • Certified Brazilian Jiu Jitsu instructor at Easton Training Center.

Bar/Professional Activity:

  • Executive Board Member of Colorado Trial Lawyers Association
  • Colorado Trial Lawyers Association; Colorado Bar Association; National Trial Lawyers Association; Mass Tort Trial Lawyers Association; Colorado Hispanic Bar Association

Pro bono/Community Service:

  • Volunteer for Habitat Humanity., 2013
  • For several years I wrapped Christmas presents and delivered them to underprivileged families for the Brooklyn Childrens Charity Fund., 2013
  • Volunteer dog walker at Sean Casey Animal Rescue., 2013
  • Donated money to St. Judes Childrens Research Hospital through McDivitt Law Firm fund raiser.  , 2017
  • Monthly clothing donation to Good will, 2016
  • Participant in Furry Scurry, which is an event put on by the Dumb Friends League to care for homeless animals., 2016
  • Memeber of McDivitt Law Firm's PIPS group which chooses and coordinates fundraisers for multiple charities, including but not limited to Wounded Warrior Project, St. Jude Children's Research Hospital and the American Heart Association., 2017
  • Participated in 5K to support Multiple Sclerosis., 2016
  • Coordinated a food and clothing drive in Brooklyn New York to help families suffering from the devastating effects of Hurricane Sandy., 2012
  • Voulunteer for Red Hook Initiative which helped Red Hook Brooklyn recover from the devastation of Hurricane Sandy by cleaning up the neighborhood, local businesses and provided food to local residents whose homes were damaged or destroyed. , 2012
  • Vice President of ResPet Colorado a not for profit organization that provides temporary fosters for pets whose owners are in crisis. The goal of the organization is to reunite pets with their owners when they have successfully recovered from or overcome their crisis., 2018

Scholarly Lectures/Writings:

Verdicts/Settlements:

  • $10,000 Plaintiff’s verdict in Denver County on a 4mph collision with low property damage. Plaintiff was not wearing her seatbelt and had pre-existing injuries. Defense made a $0 offer before trial, the jury rightfully awarded the majority of the Plaintiff’s medical bills. , 2019
  • Randel Case- Successfully negotiated a $100,000 settlement in a motor vehicle incident in Denver County., 2019
  • Esquival case- Successfully negotiated a $147,500 settlement in premises liability case., 2019
  • Loveless Case - Successfully negotiated a $152,500 settlement in premises liability case., 2019
  • Smith case- Successfully negotiated a $225,000 settlement on a motorcycle accident case., 2019
  • M.F. Case- Succesfully negotiated a $215,000 settlement in a motor vehicle - pedestrial incident., 2019
  • Successfully negotiated a $150,000 settlement for MVA where client suffered a torn labrum requiring surgery., 2019
  • Robinson Case- Successfully negotiated a $125,000 settlement four car rear-end MVA in El Paso County, 2019
  • Weingartner- Successfully negotiated a $495,000 settlement on a motor vehicle accident in Arapahoe County., 2018
  • Successfully appealed and overturned a summary judgment order in Brown v. American Standard Insurance Company of Wisconsin on a matter of first impression in Colorado. Summary: American Standard Insurance Company sent Mr. Brown notification that his motorcycle policy was cancelled because he did not have a driver’s license. Shortly after, he was in a bad motorcycle accident. Although he actually had a Driver’s license he didn’t take any action about the notice because he was in the hospital badly injured.  We were only able to recover very little from the liability carrier so we made an underinsured motorist claim against American Standard. As expected American Standard denied the claim saying he was not covered at the time and he was provided proper notice.  In Colorado notice was enough. The reason did not have to be accurate.  We challenged the law in State Court, which had never been done before. We argued that the cancellation was not appropriate because it was based on inaccurate information. The State Court upheld the law and dismissed our case on the grounds that American Standard provided proper notice of the cancellation and Mr. Brown took no action.  We appealed the decision and after a year the Appellate Court granted our appeal and reversed the decision.  Since this was a matter of first impression, the new law in Colorado is as follows:   When an insurer provides the reason for cancellation of an automobile insurance policy either with the notice of cancellation or in response to a request from the insured, the reason given must be accurate, or the notice is ineffective.    , 2019
  • Wilson case - Successfully negotiated a $100,000 settlement in a T-bone collison case in Prowers County., 2016
  • Downer Case- Successfully negotiated a $300K settlement for a motor vehicle collision where Plaintiff suffered a stress heart attack at the scene., 2018
  • Lake Case- Successfully negotiated a $250,000 settlement for motorcycle accident case in Grand Junction Colorado., 2018
  • Gray Case: Successfully negotiated a $250,000 settlement for a T-bone collision in Arapahoe County., 2018
  • Jackson Case-2016 - $391,873.91 Plaintiffs verdict in El Paso County District Court on a motor vehicle accident case with disputed liability., 2016
  • Thomson case - Successfully negotiated a $100,000 Settlement in T-bone collision case in El Paso County., 2015
  • Aragon Case: Successfully negotiated a $215,000 settlement for a family that was struck by a motor vehicle while in a cross walk., 2018
  • Hill Case - Successfully negotiated a $220,000 settlement on a pedestrian knockdown case in Boulder county., 2015
  • Taylor Case- Successfully negotiated a $425,000 UM/UIM settlement against Farmer's Insurance company., 2014
  • Foster case - Successfully negotiated a $180,000 settlement in a rear end collision case in Jefferson County., 2015
  •  Brott Case - Successfully negotiated a $137,500 settlement for a slip and fall on ice at a gas station in Adams County, 2017
  • Awarded Summary Judgment in New York County, NY Premises Liability Case. Associate Edward Lomena was awarded summary judgment in a New York County property damage case. In Sherle Wagner v. Consolidated Edison of New York, Inc., MECC Contracting Inc., the plaintiff, a manufacturer of high-end bathroom fixtures, allegedly sustained $7,000,000 in property damage as the result of a flood in its show room. The damage was the result of water and oil entering a Con Edison vault located on the sidewalk outside of the building and a faulty sump pump in the vault. The plaintiff claimed that work that MECC performed in the roadway a month prior to the incident may have caused debris to build up in the vault, which thereafter caused the pump to malfunction. At the close of discovery, we moved for summary judgment on the grounds that MECC did not cause or create the condition that resulted in the plaintiff’s property damage, and there was no nexus between the work MECC did in the roadway and the failure of the sump pump in the transformer vault. The trial court agreed with our analysis and dismissed the plaintiff’s claims against MECC., 2012
  • Successfully argued in front of the Appellate Division, Second Department, State of New york to uphold a trial court decision denying summary judgment against my client Shannon Construction of Long Island for common law indemnification in a construction accident case. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D33619.pdf, 2012
  • Successfully negotiated a $125,000 Settlement in a rear-end motor vehicle accident in El Paso County., 2016
  • Successfully negotiated a $130,000 settlement for a neck injury case in Garfield County., 2017
  • Terry Case - Successfully negotiated a $115,000 Settlement in head on automobile collision in El Paso County., 2014
  • White Case- Successfully negotiated a $137,651 settlement for a Colorado State Trooper that was rearended while on the job., 2018
  • Dwire Case - Successfully negotiated a $500,000 settlement in a bad faith UIM/UM claim against Progressive Insurance Company. Progressive alleged that Plaintiff was at fault for the accident and denied insurance coverage even filing a motion for summary judgment which we defeated., 2016
  • Nguyen, 2017 - Successfully negotiated $131,000 Settlement in El Paso County Automobile Accident, 2017
  • Cordova case, 2015 - Successfully negotiated a $187,500 Settlement in a T-bone collison in Logan County., 2015
  • Dennis case, 2015 - Successfully negotiated a $135,000 Settlement in a T- bone collision in El paso county., 2015
  • 2012- Obtained the dismissal of a Queens County, NY premises liability case. In Collins v. Top Notch Construction, the plaintiff allegedly sustained injuries when he tripped and fell in front of his home on April 20, 2005. The plaintiff claimed that Top Notch Construction negligently left construction debris and loose planks on the exterior front stoop landing and common area. The plaintiff passed away in 2006 and the matter was stayed so that an administrator could be appointed and substituted as the plaintiff. No administrator was ever appointed. As such, we moved to dismiss the action for failure to substitute in a timely manner. The decedent’s wife opposed the motion on the grounds that it was her intention to be appointed and continue on with the action. Notwithstanding her opposition, the trial court granted the motion and dismissed the complaint, holding that her delay in seeking the substitution was unreasonable., 2012
  •  Hastings Case- 2017. Successfully negotiated a  $275,000 settlement in El Paso County for  for 58 year old woman whose back condition was exacerbated by a rear end collision, which accelerated her need for a fusion surgery., 2017
  • Caron case, 2015- Sucessfully negotiated a $147,500 UM/UIM Settlement with Nation Wide Insurance in El Paso County., 2015
  • McKinney Case - Successfully negotiated a $150,000 settlement in motor vehicle accident involving a landscape company in Jefferson County., 2016
  • Brennan case, 2016 - Successfully negotiated a $100,000 settlement for bicycle rider hit by motor vehicle in El Paso County. Defendants originally denied liability and offer $0., 2016
  • Loibl Case- Successfully negotiated a $200,000 Settlement for a Colorado resident injured in a car accident in Texas., 2017
  • Doe v. Doe- Successfully negotiated a confidential multi-million dollar settlement in Federal police brutality case., 2017
  • Carrillo case, 2014 - Successfully negotiated a $300,000 settlement for a husband and wife involved in a motorvehicle accident in Fremont County., 2014
  • Emmerling case- $64,000 Jury verdict in El Paso County. Plaintiff had $14,000 in medical bills and a 4 month, 6 month and year long gap in treatment. The Defense final statutory offer was $23,000. The jury awarded the Plaintiff $14,00 in past medical biils, $40,000 in pain and suffering and $10,000 for permanent impairment. With interest and cost the total amount of the verdict will be about $100,000., 2018
  • Vigil Case, 2015 - Successfully negotiated a $270,000 Settlement in a Trucking accident case in Pueblo County., 2015
  • Dingler case -2015- Successfully negotiated a $175,000 settlement on motorcycle accident case in El Paso County., 2015
  • Meyer case, 2016 - Successfully negotiated a $440, 340.87 settlement on a Wrongul death case involving an infant., 2016
  • New York County, 2010- Successfully defended Green Point Landing in a Labor law personal injury trial in Which Daniel Savillo was rendered a paraplegic as a result of a fall from a scaffold. Mr. Savillo was a 29 year old union scaffold worker at the time of the incident. In addition to being paralyzed from the waist down Mr. Savillio also suffered a brain injury. After a week long trial the jury found Allsafe Heights was at fault for Mr. Savillo's injuries and awarded him $50, 591,035 in damages. Allsafe was also ordered to pay Green Point Landings defense costs and fees., 2010
  • Foster Case, 2016 - Successfully negotiated a $100,000 UM/UIM Settlement with American Family in Federal Court., 2016
  • Bridenthal/EVans Case- Awarded $71,000 in a damages only bench trial in El Paso County. Plaintiff's were rear ended by a tow truck and suffered soft tissue injuries to the neck and back., 2017

Transactions:

Other Outstanding Achievements:

  • Colorado State Champion in Brazilian Jiu Jitsu., 2017
  • Purple Belt in Brazilian Jiu Jitsu; 2014 Bronze medalist at the International Brazilian Jiu Jitsu Federation World Championships
  • Brown belt in Brazilian Jiu Jitsu, 2018
  • Bronze medalist at International Brazilian Jiu Jits Federation World Championships., 2017

Newsletters:

  • An Unusual and Violent Bus Stop (NY) Posted on August 9, 2012 Bus riders in New York City are familiar with the usual “jerks and jolts” that occur when riding a bus in heavy City traffic. However, a bus driver that makes an “unusual and violent stop” may be negligent. In Lewis v. Metropolitan Transportation Authority, the plaintiff was injured when a bus on which she was a passenger stopped suddenly, causing her to fall. The Supreme Court, Queens County was faced with the question of whether the bus driver made an “unusual and violent stop”. The bus driver testified that he was in traveling about 15 mph in heavy traffic “at least a car length” behind a passenger car, when the car stopped suddenly in an intersection. The bus driver hit the brakes and stopped the bus from hitting the car. The MTA moved for summary judgment on the grounds that the stop was not “unusual and violent. Further, the MTA argued that they were entitled to summary judgment under the “emergency doctrine”. The Supreme Court, Queens County, denied the motion. On appeal, the Appellate Division, Second Department upheld the lower court’s decision, holding that the bus driver’s testimony that he was traveling as fast as 15mph and as little as one car length behind the car before it stopped suddenly demonstrates a question of fact. Further, the court held that the emergency doctrine does not apply because the bus driver was reacting to a common traffic occurrence and not an emergency. Thank you to Ed Lomena for his contribution., WCM OF INTEREST
  • No Resuscitation Posted on March 4, 2010 In Douse v. City of New York, et.al, the plaintiff claims she tripped and fell on “a piece of metal sticking out of the concrete”. In this regard, the plaintiff stated “the first time” that she observed the piece of metal was one month after the alleged accident when she returned to the scene with her attorney. The defendant moved for summary judgment on the grounds that plaintiff could not identify what caused her fall, which was fatal to her claim. Contrary to established case law, the Supreme Court, Kings County, denied the defendant’s motion. However, on appeal, the Second Department refused to allow the lower court to resuscitate this fatal flaw. The Second Department held that “a trier of fact would be required to base its finding of proximate cause on pure speculation” and dismissed the plaintiff’s claim. Thanks to Edward Lomena for his contribution to this post., WCM OF INTEREST
  • Standard For Affidavits in Support of Summary Judgment Motions Posted on January 5, 2011 In Rodriguez v. 3251 Third Avenue, the plaintiff fell from an unsecured ladder while preparing to paint office space in the defendant’s building. The plaintiff moved for summary judgment under Labor Law 240(1) claiming that he was not provided with proper safety equipment. The owner opposed the motion by submitting an unsworn statement from the plaintiff’s employer stating that he did not know the plaintiff and the plaintiff did not work for him. The lower court denied the plaintiff’s motion, but the Appellate Division, First Department reversed holding that the plaintiff was entitled to the protections of the Labor Law and that the unsworn statement of the plaintiff’s employer was hearsay and unaccompanied by any other evidence to show that the plaintiff’s presence on the work site was unauthorized. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Defendant Liable Under Labor Law Even Though Evidence Plaintiff Was Negligent Posted on May 8, 2009 In Balzer v. City of New York, et al. the plaintiff, an iron worker, was injured while working as part of a construction crew that was bolting lateral bracing to road beams on an elevated roadway along the Whitestone Expressway. The plaintiff was wearing a safety harness and lanyard that could be attached to either a safety cable or other stationary object. Since there were no safety cable in the plaintiff’s work area, he tied his lanyard around a steel “cross bracing stiffner.” The cross bracing stiffner moved causing plaintiff to fall 15 feet. The plaintiff filed moved for summary judgment on his Labor Law Section 240 claim and the court granted the motion holding that the plaintiff established his entitlement to summary judgment by proving that he was not provided with a safety cable. The court also stated that the fact that there was evidence that the plaintiff was partially at fault for attacthing the lanyard to an object that was not statinary is not a defense to liability under Labor Law Section 240(1). Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Storm in Progress? Snow Removal Contractor Has Reasonable Time to Respond in NY Posted on December 27, 2012. In the case of Espinal v. Melville Snow Contractors, 98 NY2d 136, 142-143, the New York State Court of Appeals, held that a snow removal contractor does not owe a duty of care to third-parties. However, in the years since the holding in Espinal, the trial courts have made it more difficult for a snow removal contractor to win summary judgement. In the case of Eugenia Smilowitz v. GCA Services Group, the Supreme Court, Queens County got it right. The plaintiff, an employee of St. Johns slipped and fell on snow and ice on the St. Johns campus. The defendant, GCA was responsible for maintaining the grounds, including snow removal. GCA moved for summary judgment, arguing that under the “storm and progress rule” a snow removal contractor cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. In opposition, the plaintiff tendered no evidence that GCA fell into any of the Espinal exceptions. More specifically. the plaintiff failed to prove that GCA created or exacerbated the icy condition that she slipped on. The Appellate Division, Second Department upheld the lower court’s decision, holding that merely undertaking snow removal duties, as required by contract, cannot be said to have created or exacerbated a dangerous condition. Thanks to Ed Lomena for his contribution., WCM OF INTEREST
  • Homeowner’s Exception And Mixed Use Posted on May 26, 2010. Generally, Labor Law Section 240(1) imposes absolute liability on homeowners and general contractors. The Legislature carved out an exception for owners of one-and two-family dwellings who are not in a position to realize, understand and insure against the responsibilities of absolute liability imposed by Labor Law Sections 240(1) and 241(6). The exception, however, does not apply to single-family residences that are used for commercial purposes In Chester Lenda v. Breeze Concrete Corp. the defendant homeowner moved for summary judgment seeking dismissal of the plaintiff’s Labor Law 240(1) and 241(6) claims arguing that he was entitled to the protection of the homeowner’s exception because he planned to use the residence for potential overflow for family guests during vacations. The lower court denied the motion and the Appellate Division, Second Department upheld the denial noting that the evidence showed that a caretaker, employed by the owner, lived in the residence rent free as part of his compensation for maintaining two of the owner’s other properties. Thus, the court held that the owner’s use of the property was strictly commercial. In cases of mixed use, the court’s determination on whether the homeowner’s exception applies is based on the site and purpose test. This test takes into account the intention of the homeowner at the time of the injury and not their hopes for the future. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Stay In Your Lane Posted on December 7, 2011. In Jahangir v. Logan Bus, the decedent was killed when she was hit in the head by the side view mirror of a minibus. The defendant moved for summary judgment, arguing that the decedent darted out into the street from between two parked cars, away from the cross walk and directly into the defendant’s path.  The plaintiff opposed the motion by producing an affidavit of a non-party witness, in whose car the decedent was a passenger. The witness stated that the decedent got out of the car and crossed quickly in front of his car and stopped in the area between his car and a bus that was stopped directly in front of his car. As the decedent did this, she stuck her head out directly “above the double yellow line” separating eastbound and westbound traffic for about two to three seconds, at which time the decedent was struck in the head by the driver’s side mirror of the defendant’s minibus. The Supreme Court, Queens County granted the defendant’s motion, holding that there was sufficient evidence that the defendant driver could not have avoided contact with the decedent. The Appellate Division, Second Department reversed the lower court’s decision holding that there can be more than one proximate cause of an accident and that the issue of comparative negligence is generally a question for the jury to decide. The court further noted that the fact that the decedent’s head may have been directly above the double yellow line when she was struck suggests that the mirror may have been straddling the double-yellow line, in violation of Vehicle and Traffic Law section 1128 (a). Thus, an issue of fact existed as to whether the defendant committed a statutory violation and whether that violation was the proximate cause of this accident. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • NY: Written Acknowledgment Of Dangerous Condition Sufficient For Prior Written Notice Requirement Posted on October 15, 2009 In Clark v. The City of New York, the plaintiff sought to recover damages for personal injuries he sustained when he rode his motorcycle over a manhole cover. Eight months before the accident, the City received a complaint about the manhole cover and completed a service request inspection detail report. The City later determined that the cover belonged to a phone utility and took no further action. The City moved for summary judgment arguing that the plaintiff failed to comply with the prior written notice requirement of Administrative Code Section 7201. In denying the City’s motion, the court held that even if the cover did not belong to the City, the written acknowledgement of the allegedly dangerous condition on the public roadway was sufficient to give the City notice of the condition. Thanks to Edward Lomena for his contribution to this post., WCM OF INTEREST
  • CBS News
  • Expert Affidavit Cannot Overcome Inability To Identify Cause Of Fall Posted on August 17, 2010 It is well established that in a slip and fall action, the plaintiff’s inability to identify the cause of the fall is a fatal flaw. In Murphy v. The New York City Transit Authority, the plaintiff was injured when she slipped and fell on a stairway in a subway station. The Transit Authority was granted summary judgment because the plaintiff could not identify the cause of her fall and the Appellate Division affirmed. On appeal, the Appellate Division addressed whether an affidavit of an engineer stating that the stairs violated certain provisions of the New York State Building Code was enough to overcome the plaintiff’s inability to identify the cause of her fall. The Second Department held that it would be purely speculative to find that the alleged violations in the engineer’s report proximately caused the plaintiff’s fall. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Co-Worker’s Affidavit Sufficient To Defeat Summary Judgment in Labor Law Case Posted on February 28, 2012. In Silva v. FC Beekman Associates, LLC, the plaintiff was injured when he fell 14 feet from a scaffold while working in the elevator shaft of a high rise building in Manhattan.  The plaintiff sued the owner of the building and general contractor alleging a violation of Labor Law 240(1 based on a claim that there were no railings or safety net around the scaffold he was working on and he was not provided with a harness. At the close of discovery, the plaintiff moved for summary judgment.  The defendants opposed the motion by providing an affidavit from the plaintiff’s co-worker, James Kern, who stated that he was working with the plaintiff and the scaffold had railings on two sides.  However, Kern did not witness the accident.  The Supreme Court, Queens County granted the plaintiff’s motion, holding that the affidavit was hearsay because Kern did not state that both railings were in place at the time of the plaintiff’s accident. The Appellate Division, Second Department reversed the lower court’s decision, holding that Kern’s affidavit was based on his personal observations and the fact that he did not specifically state that the railings were present “at the time of the accident” was not dispositive.  The Court further noted that the statement, when read in proper context and in its totality, is clear that Kern was referring to the time of the subject accident.  Accordingly, Kern’s affidavit created a question of fact that precluded summary judgment. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Unit Owner Sufficiently Alleged Nuisance Claim Against Neighbor For Secondhand Smoke Posted on December 9, 2009 In Ewen v. Maccherone, the plaintiff sued his neighbor claiming negligence and nuisance based on a claim that the cigarette smoke from the neighbor’s apartment had an objectionable odor that invaded his apartment and caused health problems for his infant daughter. The defendant filed a pre-answer motion to dismiss on the grounds that the plaintiff’s complaint failed to state a cause of action for nuisance or negligence. The court denied the defendant’s motion, holding that he failed to establish a conclusive defense as a matter of law. Specifically, the court found that the plaintiff’s allegation that the secondhand smoke interfered with his “rights, comforts and conveniences” as an apartment owner was enough to establish a claim of nuisance. Further, the court held that the plaintiff’s allegation that his daughter became ill and he was forced to evacuate his apartment several times as a result of the smoke was sufficient to establish a claim of negligence. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • 2nd Dept Allows Judgment Entry Where Settlement Not Timely Paid Because Of Delayed W-9 Posted on September 16, 2010 Pursuant to CPLR 5003(a), defendants have 21 days from the plaintiff’s tender of a release and stipulation of discontinuance to pay the proceeds of a settlement. If the defendant fails to timely pay the settlement the plaintiff can enter judgment entitling him or her to recover interest, costs and disbursements. In Klee v. America’s Best Bottling Co., a pedestrian knock down case, the plaintiff settled his claims for $400,000 and promptly mailed a release and stipulation of discontinuance to the defendant. The closing papers were accompanied by a cover letter disclosing the plaintiff’s tax identification number, but not a completed W-9 form. The defendant requested the form, but the plaintiff failed to provide it. Because the plaintiff did not comply with defense counsel’s request, the settlement proceeds were not paid within 21 days. Once the 21 days lapsed, the plaintiff entered judgment and the defendant subsequently moved to vacate the judgment, arguing that the Internal Revenue Code requires that the plaintiff provide a W-9. The lower court vacated the judgment. On appeal, however, the Appellate Division, Second Department reversed, holding that the plaintiff fulfilled his obligations under CPLR 5003(a) by tendering a release and stipulation of discontinuance and further held that there is no statutory authority that makes submission of a completed W-9 a condition precedent for payment of the sum due in settlement of a personal injury claim. I note that the Appellate Division, First Department, reached a different conclusion in Cely v O’Brien & Kreitzberg , 45 AD3d 368. Thanks to Ed Lomena for his contribution to this submission., WCM OF INTEREST
  • NYC Subways and Air Conditioning Posted on June 14, 2012. Every New Yorker who uses the subway on a regular basis has had the unpleasant experience of riding a train on hot day with no air conditioning. In Mahautiere v. NYC Transit Authority, a case of first impression in the Supreme Court, Queens County, the plaintiff fainted in a subway cart and fractured her ankle. The plaintiff commenced a lawsuit against the NYC Transit authority, alleging that the Transit Authority was negligent in failing to “provide a reasonably expected level of air conditioning” while the train was stopped between two stations. The Transit Authority moved for summary judgment, arguing that they did not owe the plaintiff a duty to provide air conditioning, yet did so and it was working properly. The court granted the Transit Authority’s motion, holding that even if the agency owed the plaintiff a duty to provide a “reasonably expected level of air conditioning” and breached it, plaintiff did not provide sufficient evidence to support her contention that insufficient air conditioning caused her to fall and fracture her ankle. This case was an opportunity for the court to address two issues that affect millions of New Yorkers on a daily basis. First, does the Transit Authority have a duty to provide a “reasonably expected level of air conditioning” in the subway? Second, what is a “reasonably expected level of air conditioning?” It will be very interesting to see what the Second Department does when this case comes up on appeal. Special thanks to Ed Lomena for his contributions to this post. , WCM OF INTEREST
  • NY Court of Appeals Limits “Readily Available” Safety Device Defense Posted on March 2, 2010 In Douse v. City of New York, et.al, the plaintiff claims she tripped and fell on “a piece of metal sticking out of the concrete”. In this regard, the plaintiff stated “the first time” that she observed the piece of metal was one month after the alleged accident when she returned to the scene with her attorney. The defendant moved for summary judgment on the grounds that plaintiff could not identify what caused her fall, which was fatal to her claim. Contrary to established case law, the Supreme Court, Kings County, denied the defendant’s motion. However, on appeal, the Second Department refused to allow the lower court to resuscitate this fatal flaw. The Second Department held that “a trier of fact would be required to base its finding of proximate cause on pure speculation” and dismissed the plaintiff’s claim. Thanks to Edward Lomena for his contribution to this post., WCM OF INTEREST
  • Labor Law And The “Construction Area” Posted on November 9, 2010 In Pirog v. 5433 Preston Ct., LLC, Pirog injured his hand while he and his co-workers were stacking pipes on the defendant’s property. Pirog’s employer used the defendant’s property to store construction materials for use on various construction projects throughout the City. Pirog commenced suit asserting that the defendant violated Labor Law sections 200, 240(1) and 241(6). The defendant moved for summary judgment, but its motion was denied. On appeal the Second Department reversed the lower court’s decision and granted the defendant summary judgment holding that, at the time of his accident, the plaintiff was not engaged in construction work and was not working in a construction area within the meaning of the Labor Law. Thanks to Ed Lomena for his contribution ot this post., WCM OF INTEREST
  • City Escapes Liability Based On No Prior Written Notice Posted on April 3, 2009 In Santiago v. City of NY, the plaintiff was playing a game of football with his sons in a City owned park when he tripped and fell because of a depression near a park bench. In support of its motion for summary judgment, the City of NY argued that the plaintiff did not comply with the prior written notice requirement of section 7-201(c)(2) of the Administrative Code. Although there are exceptions to the rule, the City argued that it did not create the defect through an affirmative act of negligence nor was the defect caused by a special use that benefited the City. The court ruled in favor of the City and dismissed the matter. Thanks to Ed Lomena for his contribution to this submission., WCM OF INTEREST
  • An Owner’s Lack Of Supervisory Control Is Not A Defense In A NY Labor Law § 200 Claim Posted on November 28, 2012. In Raffa v. The City of New York, the plaintiff was injured when he slipped and fell on a sheet of ice at a construction site, while walking from his car to a construction trailer. The plaintiff testified that two days prior to the accident, he complained to the foreman and superintendent about snow and ice covering the area where he fell.  Additionally, the day prior to the plaintiff’s accident, the project manager was notified that another worker slipped and fell on ice in that area. The plaintiff sued the owner of the property, the City of New York, and the general contractor, U.R.S. Corp. under Labor Law § 200 and common law negligence in the Supreme Court, Bronx County. The City of New York moved for summary judgment on the grounds that as an owner, it had no supervisory control of the plaintiff or control over the means, methods or materials used in the work. The court agreed and granted the City of New York’s motion. On appeal the Appellate Division, First Department reversed the lower court’s decision. The First Department held that because the plaintiff’s Labor Law § 200 and common law negligence claims are based on a dangerous condition on the site, not on the means, methods or materials used in the work, the only issue was whether the City of New York had notice of the condition, not whether it excercised supervisory control over the manner of performance of plaintiff’s work. Thus, there was a question of fact as to whether the City of New York had actual or constructive notice of the icy condition that caused the plaintiff’s accident. Thanks to Ed Lomena for his contribution., WCM OF INTEREST
  • Watch Your Step Posted on April 27, 2010 In Grabowski v. Consolidated Edison Company, the plaintiff was injured when he fell from a wooden bench that was used to provide access to a work trailer. The door to the trailer was two to three feet off the ground and the seat of the bench was midway between the door and the ground. The plaintiff moved for summary judgment arguing that the defendants violated Labor Law § 240 (1) and the defendants cross-moved to dismiss the 240 (1) cause of action. The lower court granted the plaintiff’s motion. On appeal the Appellate Division reversed, holding that the bench that the plaintiff fell from was used as a stairway for the trailer and did not fall within the purview of Labor Law § 240 (1). Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Whether A Defect Is Trivial Is Not Always A Question Of Fact Posted on October 13, 2011 Generally, whether a dangerous or defective condition exists on the property of another so as to create liability depends on the facts of each case and is generally a question of fact for the jury. However, it is well established that a trivial defect that does not constitute a trap or nuisance that would cause someone to trip is not actionable. Despite this established standard, New York’s lower courts’ decisions on the issue of trivial defects have been inconsistent. In fact, some judges believe that by raising the trivial defect argument a defendant creates a question of fact for a jury. [i]Kehoe v. The City of New York[/i], is the latest example of a court’s failure to adhere to the established standard. In [i]Kehoe[/i], the plaintiff tripped and fell in front of defendant Avitable’s property, resulting in her death. The defendant moved for summary judgment on the grounds that the defect was trivial as a matter of law and not actionable. The Supreme Court, Kings county denied the defendant’s motion, but the Appellate Division, Second Department reversed finding that the defendant established that the defect was trivial and did not possess the characteristics of a trap or nuisance. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • NY 2nd Dept: Though Held To Lesser Standard Decedent Must Show Proof of Negligence Posted on July 23, 2009 In Bacic v. New York City Transit Authority, the decedent was found beneath two subway cars, but one of her shoes was found on the platform. There were no witnesses to the accident and it was later determined that the decedent’s blood alcohol level exceeded the legal limit. At the close of evidence the trial court granted the defendant’s motion to dismiss the complaint based on the plaintiff’s failure to make out a prima facie case of negligence. The plaintiff appealed relying on their expert’s testimony that the train’s conductor should have seen the decedent or, at least her shoe, on the platform. The appellate court affirmed the trial court’s decision finding that the plaintiff’s expert’s testimony was speculative and further held that although a deceased plaintiff is held to a lesser standard of proof, the plaintiff still has an obligation to provide some proof from which negligence could reasonable be inferred. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
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  • In NY, Inspection Is the Key to the Notice Argument. Posted on June 23, 2010 It is well established that a defendant moving for summary judgment in an action involving a slip and fall on a transient condition must make a prima facie showing that it neither created the condition, nor had actual or constructive notice of the existence of the condition for a length of time sufficient to discover and remedy it. Because it is nearly impossible to determine how long a transient condition has been present, courts look at many factors, including whether it was ongoing, recurring or even dirty. In Bruinsma v. Simon Property Group the plaintiff sustained personal injuries when she slipped on a bubble on the ground of the New Haven Mall. The defendant moved for summary judgment on the grounds that it did not have notice of the alleged condition. The Supreme Court Suffolk County denied the motion. The Appellate Division Second Department upheld the lower court’s decision. Although courts look at many factors when determining notice of a transient condition, in this case, the Appellate Court’s decision was based solely on the defendant’s failure to submit evidence of when the ground was last inspected prior to the accident. Special thanks to Ed Lomena for his contributions to this post., WCM OF INTEREST
  • No Safety Equipment Provided, No Assumption of Risk Posted on February 2, 2012. In Charles v. Uniondale School District, the plaintiff, a high school lacrosse player, was struck by a passed ball during pre-season lacrosse practice.  Because it was pre-season the plaintiff had not yet been provided with a helmet and facemask. Under New York law, it is well established that a participant engaging in a sporting or recreational activity consents to commonly appreciated risks that are inherent in and arise out of the nature of the sport.  Such participants may be held to have consented to such risk by their participation in the injury-causing event that is an apparent or reasonably foreseeable consequence. Based on the above, the school district moved for summary judgment, but the Supreme Court, Nassau County denied the motion holding that although being struck with a passed ball is a known risk inherent in the sport of lacrosse, there was a question of fact as to whether the school district increased the risk of harm by failing to provide the plaintiff with head and face protection during practice.  The Appellate Division Second Department affirmed the lower court’s decision. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • NY 1st Dept: Plaintiff’s Testimony Alone As To Lighting Insufficient To Defeat SJ Posted on November 10, 2009 In Brodie v. Gibco Enterprises, Ltd., the plaintiff, a patron in the defendant’s restaurant, tripped and fell on a single step that separated the bar from the dining area. The plaintiff claimed that the lighting in the bar area was inadequate. The restaurant moved for summary judgment on the grounds that the area above the step was lit by a recessed lighting fixture in the ceiling and that the step neither was inherently dangerous nor constituted a hidden trap. The lower court granted the defendant’s motion and the plaintiff appealed. In affirming the decision, the First Department found that the plaintiff’s testimony alone, without any other admissible evidence as to the sufficiency of the lighting or the inherent danger of the step could not defeat summary judgment. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Who Is Responsible For Con Edison Transformer Vaults? Posted on May 24, 2011 In Egan v. Consolidated Edison and New York Yankee Partnership, the plaintiff sustained personal injuries when she slipped and fell on snow and ice that was on the edge of a transformer vault where Con Edison was working. In New York, it is well established that snow and ice removal is the responsibility of the abutting landowner. As such, the Supreme Court, Bronx County denied the Yankees’ motion for summary judgment, holding that there was a question of fact as to whether the Yankees’ snow removal efforts created the condition or exacerbated it. On Appeal the Appellate Division, First Department reversed the lower court’s decision and held that because Con Edison owned the vault, Con Edison and not the Yankees was responsible for maintaining it. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Expert Affidavit Cannot Overcome Inability To Identify Cause Of Fall Posted on August 17, 2010 It is well established that in a slip and fall action, the plaintiff’s inability to identify the cause of the fall is a fatal flaw. In Murphy v. The New York City Transit Authority, the plaintiff was injured when she slipped and fell on a stairway in a subway station. The Transit Authority was granted summary judgment because the plaintiff could not identify the cause of her fall and the Appellate Division affirmed. On appeal, the Appellate Division addressed whether an affidavit of an engineer stating that the stairs violated certain provisions of the New York State Building Code was enough to overcome the plaintiff’s inability to identify the cause of her fall. The Second Department held that it would be purely speculative to find that the alleged violations in the engineer’s report proximately caused the plaintiff’s fall. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • NY: Cross That Snow Mound At Your Own Risk Posted on May 14, 2012 In Quintana v. The New York City Housing Authority, the plaintiff was injured when he slipped and fell while attempting to climb over a mound of snow created along the curb of the sidewalk by NYCHA’s snow plow. The First Department held that, in the absence of evidence that the mound obstructed the crosswalk or was of such magnitude at the corner that it was more reasonable for a pedestrian to cross the street where plaintiff made his attempt, NYCHA could not reasonably have foreseen that a person in the circumstances in which plaintiff found himself would have acted as he did. Moreover, even assuming that an issue of fact exists as to whether the crosswalk was blocked by the mound, plaintiff was not in an “emergency situation,” and had other, albeit less convenient options for crossing the street, including walking back down the block, rather than crossing over the mound outside of the crosswalk. Thanks to Ed Lomena for his contribution., WCM OF INTEREST
  • NY App. Div. Holds Landlord Liable For Lead Paint Exposure Posted on January 7, 2010 In Rivas v. Cruciata & Sons, LLC, the infant plaintiffs were diagnosed with lead poisoning while they were tenants in a building owned by Cruciata. The NYC Department of Health and Mental Hygiene (DHMH) found unlawfully high levels of lead on the painted surfaces of the radiator and the exterior window casings in the plaintiffs’ apartment and issued an abatement order. The plaintiffs subsequently sued Cruciata for damages arising out of their five-month exposure to lead. Cruciata moved for summary judgment arguing that it did not have notice of the lead condition until the DHMH issued the abatement order and that it promptly abated the lead once notified. The lower court granted Cruciata’s motion, but the appellate court reversed holding that there were issues of fact as to whether Cruciata knew that children lived in the apartment; was aware of the dangers of lead paint; and whether there was peeling paint in their apartment. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Insulating Steam Risers Not Required In Old Buildings Posted on October 14, 2010 In Ferguson v. The New York City Housing Authority, the plaintiff lost consciousness while sitting on the toilet and suffered burns when her forehead hit the steam riser pipe in the bathroom. The plaintiff alleged that the Housing Authority was required to insulate pipes that exceeded 165 degrees Fahrenheit, but failed to do so in violation of the Administrative Code. The Housing Authority moved for summary judgment on the grounds that the Administrative Code did not apply to it because the building had been constructed before the provision went into effect and the pipe had been properly maintained. The lower court granted the Housing Authority’s motion. The Appellate Division, Second Department, affirmed holding that it was not foreseeable that the plaintiff would have been in contact with the steam riser for any sustained period of time. Further, the plaintiff failed to show that the Housing Authority had actual or constructive notice of a dangerous condition. Thanks to Ed Lomena for his contribution to this post., WCM OF INTEREST
  • Defendant Liable For Failing to Catch Falling Object Posted on February 5, 2009 In Mulvihill v. Brooklyn Law School, the construction worker plaintiff was struck by falling wood pieces that were being used to support a concrete superstructure. The plaintiff sued alleging various Labor Law violations. The defendants moved for summary judgment seeking dismissal of the Labor Law § 240(1) claim arguing that the wooden pieces that fell were not being hoisted or secured and did not fall because of the absence of a safety device. The plaintiff cross-moved for partial summary judgment arguing that liability in cases such as this is not limited to instances where the object is being actively hoisted or secured at the time it falls. The court granted plaintiff partial summary judgment, holding that the defendants’ failure to utilize a safety device to catch the falling wood was the proximate cause of plaintiff’s injury. Thanks to Edward Lomena for his contribution to this post., WCM OF INTEREST

Educational Background:

  • Norman Thomas High School-1994
  • Hofstra University - 1999
  • Hofstra University School of Law, 2005

Industry Groups

  • Colorado Trial Lawyers Association; Colorado Bar Association; National Trial Lawyers Association; Ma
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Office Location for Edward Lomena

19 East Cimarron Street
Colorado Springs, CO 80903

Edward Lomena:

Last Updated: 10/14/2019

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