Civil Procedure

WCM Successfully Opposes Defendant’s Motions to Dismiss and Remand (PA)

In Harleysville Worcester Insurance Company v. Pediatric Associates of Westmoreland Ltd, WCM Partners Robert Cosgrove and Colleen Hayes successfully defeated defendant Pediatric Assoc. of Westmoreland, Ltd.’s (“PAW”) Motion to Dismiss or, in the Alternative, Remand to State Court.  By way of brief background, plaintiff Harleysville Worcester Ins. Co. filed a declaratory judgment action...Read More

Default is not a Total Loss (NY)

In a personal injury action, plaintiff Castaldini claims personal injury when a propane tank exploded at the home of defendant Walsh. Upon defendant’s failure to answer, plaintiff’s motion to enter default judgment was granted by the trial court, and the case was sent to inquest for a trial on damages. At the inquest trial, plaintiff testified as to his injury and submitted a written sworn...Read More

Statute of Limitations and Pollution Exclusion at Play for Toxic Tort Coverage Analysis (PA)

The Western District of Pennsylvania recently determined that a number of insurers did not owe coverage for hundreds of bodily injury claims brought forth in a toxic-tort action. In Allegheny Ludlum,  LLC. v. Liberty Mutual Insurance Company, et al., the District Court granted the defendants’ motions for summary judgment after determining that the plaintiff’s claims were brought too late and...Read More

Incidental Business Connections Are Insufficient to Establish Venue (PA)

The Pennsylvania Superior Court recently tackled a civil procedure issue that frequently crosses the minds of defense counsel: improper venue. According to Pa. R.C.P 1006(e), improper venue must be raised in the defendants’ preliminary objections to plaintiff’s complaint or the objection will be waived. In Kanevsky v. Revolution Ice Rink LLC, the plaintiff slipped and fell while playing ice...Read More

Outstanding Discovery Not Enough To Stop A Partial Summary Judgment Finding (NY)

In Mallory v. City of New York , et al., the Supreme Court, New York County, found that outstanding discovery is not a barrier to partial summary judgment. In Mallory, the plaintiff filed a lawsuit seeking damages for injuries sustained in a motor vehicle accident. The plaintiff moved for partial summary judgment on liability, arguing that the defendants could not provide a non-negligent...Read More

New York Judge Finds Probable Cause to Grant Summary Judgement (NY)

In Showon v. City of New York, the plaintiff brought a cause of action against the City of New York for false arrest, false imprisonment, malicious prosecution, and battery after being arrested for running over a passenger’s foot and leaving the scene of an accident. In the criminal case, the plaintiff taxicab driver who allegedly ran over a passenger’s foot was prosecuted for leaving the...Read More

No Mall Respondeat Superior (NY)

The distinctions between independent contractors and employees can determine liability in many circumstances. Here, we have an appellate decision that found that defendants were not liable for any of plaintiff’s injuries on that distinction. In Athenas v. Simon Prop. Group, LP, plaintiff slipped and fell on floor cleaner in the interior common area of a Long Island mall, in front of a Cohen’s...Read More

Painful Verdict for Pain and Suffering (NY)

The Bronx has a reputation for plaintiff-friendly verdicts, and the case of Cabrera v Port Auth. of N.Y. N.J. (2020 NY Slip Op 03993) did not disappoint. Plaintiff, an employee at a Dunkin Donuts franchise at LaGuardia Airport, was involved in an accident with a salt spreading truck in the parking lot during a snowfall. After a jury trial, she was awarded future damages for only a period of...Read More

Dogs Will Be Dogs – Posted Rules at Dog Run Merely a Suggestion? (NJ)

In Freed v. Bastry, the New Jersey Superior Court, Appellate Division, considered whether park guidelines for an off-leash dog area imposed a duty upon dog owners to other park goers in the off-leash dog area. The case arose after Defendants’, Linda and Frank Bastry (the “Bastrys”), over-eager, male golden retriever ran into the plaintiff, Janet Freed (“Freed”), during playtime with Freed’s...Read More

What’s In A Name? The Wrong One Can End a Plaintiff’s Case (PA)

In Fick v. Barbon, plaintiff Terrence Fick (“Fick”) appealed the Superior Court’s decision to grant summary judgment in favor of defendant Barry Barbon (“Barbon”) following a car accident. At issue here is Pennsylvania Rule of Civil Procedure (Pa,R.C.P.) 1033—which explains correcting the name of a defendant after litigation has commenced—and the application of an amendment to the rule. Fick...Read More