Litigation

PA Appeals Court Holds that Statute of Repose Cannot be Tolled by Repairs

In Venema v. Moser Builders, the Superior Court of Pennsylvania (“Superior Court”) upheld the trial court’s decision to dismiss the plaintiff’s complaint with prejudice. The Superior Court affirmed the plaintiff’s claims were time-barred by the 12-year Statute of Repose for actions concerning construction defects. The subject premises in this case is located in Chester Springs, Pennsylvania...Read More

A Tale Of Two Transit Authorities: Relation Back Doctrine Found Not to Apply Where Defendants Were Not United In Interest

In New York, a claim asserted against a new defendant will “relate back” to the date of the original claim if plaintiff establishes that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that the...Read More

Can A Verdict Render An Appeal Moot? (NY)

In a noteworthy decision, the Court of Appeals recently held that where a triable issue of fact is litigated and a final verdict reached, that issue of fact is rendered moot on pending appeal.  Meaning, if 1) a party moves for summary judgment on liability, 2) that motion is denied, 3) the movant appeals that decision, and 4) a trial verdict decides liability before the appeal is heard, that...Read More

A Lift Is Not A Safety Device In NY Labor Law

In Carlson v. Tappan Zee Constructions, LLC., et al. Index No. 58719/2019, the Hon. Damaris E. Torrent denied a plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1). Plaintiff was working on an aerial boom lift attached to a barge when the wakes of two passing boats had caused the barge to rock. As a result, the lift platform swung and crashed into a...Read More

Soft Tissue Injuries Lead To Significant Verdict

On October 20, 2022, a federal jury in the United States District Court for the Eastern District of Pennsylvania awarded plaintiff, Kerry Ponder (“Plaintiff”) $1,800.000 for personal soft tissue, sprain / strain injuries arising from a motor vehicle collision where Plaintiff was driving on behalf of his employer. Though the at-fault driver had insurance coverage of up to $50,000, this did not...Read More

Court Dismisses Defamation Suit Stemming From Negative Google Review (NY)

This past week, in DeRicco v Maidman, the First Department of the Appellate Division of the Supreme Court of New York reversed a trial court decision that denied a defendant patient’s motion to dismiss an orthodontist’s defamation claims against them.  The claims were brought by the orthodontist and his professional corporation against the patient and his parents after the parents posted an...Read More

Helmet Safety – Court Permits Defense Expert Testimony on Impact of Helmet Usage (PA)

In Nelson v. American Honda 2 1:18-cv-000210 (W.D. Pa. August 23, 2022), the Court denied  a Plaintiff’s motion to preclude testimony of an expert witness who would testify on the impact a helmet would have in a fatal all-terrain vehicle (ATV) accident.  Seventeen-year-old Dylan Fehlman died while driving an all-terrain vehicle (ATV) manufactured by American Honda Motor Company, Inc. (Honda)...Read More

NY Appellate Court Affirms “Reasonably Safe” Requirement of Property Owner in Dismissal of Premises Case

In Shuttleworth v. Saint Margaret’s R.C. Church in Middle Village, 2022 NY Slip Op 05730, (2nd Dept. 2022), plaintiff slipped and fell on a metal drainage grating while it was raining. The defendant property owner moved for summary judgment arguing that the condition was not defective at the time of the incident. The trial court denied defendant’s motion but the Second Department...Read More

Reasonable Excuse And Meritorious Defense Lead To Vacation Of Default Judgment (NY)

When a plaintiff obtains a default judgment against a defendant in New York, the fight does not end there. While the discretion ultimately remains with the court, a default judgment may be vacated when the defendant can establish a reasonable excuse along with a meritorious defense, pursuant to CPLR §5015(a)(1). In Damsky v. Williams, the Appellate Division, Second Department, recently...Read More

New York Appellate Court Emphasizes The Importance Of Timely Settlement Payments

In New York, when an action to recover damages is settled, the settling defendant has twenty-one (21) days after tender of the required documents to pay all sums to the settling plaintiff. CPLR 5003-a. If the settling defendant fails to do so, then the plaintiff is authorized to enter a judgement “for the amount set forth in the release, together with costs and lawful disbursements, and...Read More