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News Navigating the Affirmative Negligence Exception in Trip and Fall Cases Against the City September 20, 2024 < Back Share to: ​ In Doris Goodman v. City of New York , 2024 NY Slip Op. 04377, the Second Department addressed an appeal by the plaintiff in a trip and fall case, seeking reversal of the trial court’s denial of summary judgment. The plaintiff allegedly tripped and fell as a result of a depression abutting a manhole cover situated in a roadway in Brooklyn. She brought a negligence suit against the City of New York, alleging that the City created a defective condition when it performed asphalt repair work on the roadway. The plaintiff moved for summary judgment on the issue of liability, and the defendant cross-moved for summary judgment, seeking dismissal of the complaint. Generally, it is the duty of the city to maintain municipal streets and sidewalks free of defects or hazardous conditions. However, Section 7-210 of the NYC Administrative Code limits that duty by imposing liability only for defects or hazardous conditions for which its officials have been actually notified at a specified location ( Smith v. City of New York , 210 AD3d 53, 61). "To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect. Once that showing is made, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" ( Canaday v. Village of Wappingers Falls , 220 AD3d 731, 732). Notably, the affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition ( Wilson v. Incorporated Vil. of Freeport , 212 AD3d 870, 871). Therefore, if a defect develops over time due to a negligent repair, the affirmative negligence exception does not apply. Ultimately, the Second Department affirmed the lower court’s decision to deny summary judgment to the plaintiff. The court found that the plaintiff failed to present evidence that the defendant’s work immediately resulted in the creation of the alleged defect. The court further reasoned that the plaintiff’s argument that the defendant affirmatively created the defect by failing to remedy it was without merit, stating that "[t]he mere failure to maintain or repair a roadway constitutes an act of omission rather than an affirmative act of negligence." Therefore, the plaintiff did not establish her entitlement to summary judgment as she failed to demonstrate that the City affirmatively created the defect through an act of negligence. This case is significant when defending cases where we are co-defendants with the City. At WCM, we often face similar scenarios where the City appears to have created a defective condition, and we attempt to push liability onto the municipality. However, if prior notice is absent, proving that the City immediately created the defect is crucial for a successful summary judgment motion. Goodman v. City of New York .pdf Download PDF • 162KB Previous Next Christopher Roppolo Christopher Roppolo Associate +1 332 345 2264 CRoppolo@wcmlaw.com Contact

Latest News Button September 20, 2024 Read More No Duty to Defend: Insurers Off the Hook in "Ghost Gun" Sales Case No Duty to Defend: Insurers Off the Hook in "Ghost Gun" Sales Case Button September 20, 2024 Read More Navigating the Affirmative Negligence Exception in Trip and Fall Cases Against the City Navigating the Affirmative Negligence Exception in Trip and Fall Cases Against the City Button September 20, 2024 Read More What is Considered Adequate Inspection Of An Establishment? What is Considered Adequate Inspection Of An Establishment? Button September 20, 2024 Read More Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases Button September 20, 2024 Read More The Fine Print Matters: Winning Contractual Indemnification Claims Between Tenants and Landlords The Fine Print Matters: Winning Contractual Indemnification Claims Between Tenants and Landlords Button September 13, 2024 Read More Coverage Limits, Continuing Causes, and COVID-19: District Court of New Jersey Holds COVID-19 Executive Orders Constitute One “Occurrence” Coverage Limits, Continuing Causes, and COVID-19: District Court of New Jersey Holds COVID-19 Executive Orders Constitute One “Occurrence” Button September 13, 2024 Read More It Wasn’t the Pig’s Fault It Wasn’t the Pig’s Fault Button September 6, 2024 Read More Notice of Claim Pitfall: New York Appellate Court Confirms That Original Deficiencies Cannot Be Corrected With §50-h Hearing Testimony Notice of Claim Pitfall: New York Appellate Court Confirms That Original Deficiencies Cannot Be Corrected With §50-h Hearing Testimony Button September 6, 2024 Read More Recent New York Decision Highlight the Importance of Documenting Condition of Property During Utility Work Recent New York Decision Highlight the Importance of Documenting Condition of Property During Utility Work Button September 6, 2024 Read More FLORIDA’S NEW YEARS RESOLUTION: Complying With Amendments To Rules of Civil Procedure Promoting Active Case Management FLORIDA’S NEW YEARS RESOLUTION: Complying With Amendments To Rules of Civil Procedure Promoting Active Case Management Button September 4, 2024 Read More Jury Sides With The Mouse Against Disney Adults In VIP Club Lawsuit Jury Sides With The Mouse Against Disney Adults In VIP Club Lawsuit Button August 30, 2024 Read More Literally Blinded to a Latent Danger Literally Blinded to a Latent Danger Button August 30, 2024 Read More Recovery Under Labor Law 240(1) Requires Establishing Proximate Cause of Injury Recovery Under Labor Law 240(1) Requires Establishing Proximate Cause of Injury Button August 30, 2024 Read More WARNING: Possible Spoliation Ahead WARNING: Possible Spoliation Ahead Button August 23, 2024 Read More Unlocking Coverage: The Key Role of Occupancy Determination Unlocking Coverage: The Key Role of Occupancy Determination Button August 23, 2024 Read More Labor Law § 240(1): Tighter Rules, Less Wiggle Room for Defendants Labor Law § 240(1): Tighter Rules, Less Wiggle Room for Defendants Button August 23, 2024 Read More Appellate Division Holds Plaintiffs Need No Contemporaneous Quantitative Measurements to Defeat Defendant’s Claim of No “Serious Injury” Under Insurance Law Appellate Division Holds Plaintiffs Need No Contemporaneous Quantitative Measurements to Defeat Defendant’s Claim of No “Serious Injury” Under Insurance Law Button August 23, 2024 Read More It Came Out of Nowhere! The Doctrine of Sudden Emergency It Came Out of Nowhere! The Doctrine of Sudden Emergency Button August 23, 2024 Read More Bad Faith Claim Stands Where Insurer Allegedly Ignored Evidence Bad Faith Claim Stands Where Insurer Allegedly Ignored Evidence Button August 23, 2024 Read More When is a Defect Considered “Trivial”? When is a Defect Considered “Trivial”? Button August 16, 2024 Read More Give Me Shelter Give Me Shelter Button August 16, 2024 Read More Duty of Care as to Open and Obvious Dangers is not always Open and Obvious Duty of Care as to Open and Obvious Dangers is not always Open and Obvious Button August 16, 2024 Read More SDNY Holds Coverage for Insured’s “Work” Does Not Include Design, Sale, and Manufacture of Asbestos-Containing Products SDNY Holds Coverage for Insured’s “Work” Does Not Include Design, Sale, and Manufacture of Asbestos-Containing Products Button August 9, 2024 Read More Storm in Progress Defense Rejected Where Weather Records Are Not Certified Storm in Progress Defense Rejected Where Weather Records Are Not Certified Button August 9, 2024 Read More New York Appellate Court Reminds the Bar that Unexcused Law Office Failures Are Not Enough to Vacate a Default New York Appellate Court Reminds the Bar that Unexcused Law Office Failures Are Not Enough to Vacate a Default Load More

News What is Considered Adequate Inspection Of An Establishment? September 20, 2024 < Back Share to: ​ When someone trips and falls and becomes injured due to some sort of “defect” in a store, have you ever thought about what constitutes an adequate inspection of that area and if the store actually did enough on their end to prevent the injury? How often must a store inspect an area to make sure it is clear to escape liability? Recently, in Sheva Arbit v. Costco Wholesale Corporation (Index No: 150925/19), the Supreme Court Appellate Division reversed an order from the Supreme Court in Richmond County, which had denied summary judgment. The plaintiff brought this action after she slipped and fell on food on the floor at the defendant’s store. Costco filed a motion for summary judgment to dismiss the complaint, but the Supreme Court of Richmond County denied the defendant’s motion. On appeal, the Supreme Court Appellate Division reversed the order. In a slip and fall case, the defendant moving for summary judgment has the burden of showing 1) they neither created the hazardous condition and 2) they did not have actual or constructive notice of the condition and a reasonable time to correct or warn about its existence. To meet its burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time of the fall. In this case, the incident occurred at approximately 4:00 p.m. The defendant submitted evidence through its daily inspection log that the area in question was last cleaned between 2:47 p.m. and 3:40 p.m., and at that time, no hazardous condition was found. The Costco employee testified that if any hazardous condition was observed, it would have been immediately cleaned. The court ruled that this inspection was sufficient to negate actual or constructive notice on behalf of the defendant. The Supreme Court of Richmond County should have granted the defendant’s motion for summary judgment. Arbit v. Costco Wholesale Corporation .pdf Download PDF • 736KB Previous Next Corey Stein Corey Stein Associate CStein@wcmlaw.com Contact

News No Duty to Defend: Insurers Off the Hook in "Ghost Gun" Sales Case September 20, 2024 < Back Share to: ​ In Granite State Ins. Co. v. Primary Arms LLC , insurance company plaintiffs Granite State Insurance Company ("GSIC") and National Union Fire Insurance Company of Pittsburgh, Pa. ("National Union") sought a declaratory judgment that they did not owe a duty to defend or indemnify their insured, Texas-based firearms dealer Primary Arms LLC ("Primary"), in three underlying lawsuits filed in New York. These lawsuits were brought against Primary under the insuring agreements in their commercial general liability policies. Granite State Ins. Co. v. Primary Arms LLC , No. 23 CIV. 7651 (LGS), 2024 WL 4008167, at *1 (S.D.N.Y. Aug. 30, 2024). In the underlying lawsuits, plaintiffs allege that Primary sold and shipped unfinished firearm parts that evaded gun control laws and regulations, and that its sales contributed to an increase in gun violence. The untraceable firearms made from these parts are referred to as “ghost guns.” Applying Texas law, the court found that the underlying lawsuits contained allegations that Primary “took deliberate action to enable the anonymous acquisition of uncontrolled firearms with the predictable outcome of increasing gun violence.” Therefore, Primary’s actions did not constitute an “accident” or “occurrence” triggering coverage under the GSIC and National Union policies. The court noted, “The claim is not that [Primary] forgot to run a background check on certain customers or misplaced its paperwork; rather, the allegations are that [Primary] made a deliberate choice not to implement internal controls.” Accordingly, the court granted the insurance companies' motions for summary judgment, finding that neither owed a duty to defend Primary in the lawsuits involving injuries due to Primary’s allegedly intentional conduct. Granite State Insurance Company v. Primary Arms LLC .pdf Download PDF • 169KB Previous Next Martha Osisek Martha Osisek Associate +1 267 857 3510 mosisek@wcmlaw.com Contact

Results Speak for Themselves We are litigators who think practically not abstractly. We are trial lawyers who understand coverage and coverage lawyers who try cases. We are advisors who help you manage your risk. PRACTICE AREAS Our Practice Areas OUR VISION What sets Wade Clark Mulcahy apart Wade Clark Mulcahy LLP attorneys represent clients who rely upon our success as advocates and our practical, results oriented advice and recognized expertise as trial and appellate lawyers across a broad spectrum of insurance, commercial and coverage matters. While we practice from our offices in New York City, New Jersey, Pennsylvania, Long Island, Florida and Louisiana, our clients regularly call upon us to manage risk in jurisdictions across the country. Our growth has been driven by client referrals. ATTORNEYS Latest News

News Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases September 20, 2024 < Back Share to: ​ Res Ipsa Loquitur is defined in Pennsylvania as a discrete category of circumstantial evidence that may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. Essentially, the doctrine permits a jury to exercise common sense and conclude that the alleged accident could not occur absent negligence. Pennsylvania has historically taken this a step further and allowed the doctrine to be applied to cases involving complex facts and theories, including in medical malpractice cases. In Lageman by and through Lageman v. Zepp , the Pennsylvania Supreme Court analyzed the doctrine in a medical malpractice action and clarified the scope of when the doctrine can be given as a jury instruction. Lageman by & through Lageman v. Zepp , 266 A.3d 572 (Pa. 2021). In Lageman , the trial court originally returned a defense verdict and did not permit Lageman to instruct the jury on finding negligence under Res Ipsa Loquitur since Lageman also presented direct evidence of Zepp’s negligence. Lageman argued that “accepting Zepp's version of how he performed the procedure... arterial cannulation[] would not ordinarily occur in the absence of negligence”; and Pepple's further testimony that no other plausible causes were present, Lageman contended that she made out a prima facie case under Section 328D and was entitled to the instruction. The trial court disagreed and only instructed the jury on negligence since Lageman introduced direct evidence in support of her malpractice claim. Lageman by & through Lageman v. Zepp , 266 A.3d 572, 586 (Pa. 2021). Following the defense verdict, Lageman appealed to the Pennsylvania Superior Court, and the verdict was reversed. The Superior Court found that a plaintiff has no obligation to choose one theory of liability to the exclusion of the other. If the evidence satisfies the bare minimum requirements to support a jury instruction, the instruction should be given. Therefore, presentation of Res Ipsa Loquitur theory to support a medical malpractice claim was not precluded when the plaintiff also introduced direct evidence sufficient to support a malpractice claim, so Res Ipsa Loquitur was not the only avenue to a finding of liability; the two approaches to satisfying the plaintiff's evidentiary burden were not mutually exclusive. Zepp appealed the Pennsylvania Superior Court’s finding, but the Pennsylvania Supreme Court affirmed and found that Lageman was entitled to have the jury instructed on both theories of liability. The Pennsylvania Supreme Court affirmed that in these “gray zone” cases, where the plaintiff presents direct evidence of negligence and circumstantial evidence of negligence under the doctrine of Res Ipsa Loquitur, the jury may be instructed on both theories of liability. Lageman by and through Lageman v. Zepp .pdf Download PDF • 502KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 412 605 7823 apandittayal@wcmlaw.com Contact

News The Fine Print Matters: Winning Contractual Indemnification Claims Between Tenants and Landlords September 20, 2024 < Back Share to: ​ Recently, in Errazuri v. E Food Supermarket, Inc. , 228 A.D.3d 732, the Appellate Division, Second Department decided on an appeal by two co-defendants in a personal injury suit, after both were denied summary judgment by the Supreme Court. Plaintiff filed suit after she sustained injuries arising from a trip and fall on a sidewalk abutting a supermarket, and sued both the tenant supermarket and the premises owner for negligence. In its responsive pleadings, the premises owner asserted a cross-claim against the tenant supermarket for contractual indemnification, citing the lease agreement between the co-defendants. After the close of discovery, the premises owner moved for summary judgment on its cross-claim, and the tenant supermarket also moved for summary judgment seeking dismissal of the cross-claim, and both motions were denied. On appeal, the Second Department affirmed the denial of summary judgment to the premises owner, but reversed the Supreme Court’s denial of summary judgment in favor of the tenant supermarket. In explaining its decision, the court took a very granular approach in analyzing the terms of the lease agreement. The lease agreement provided that the tenant supermarket would indemnify the premises owner for “any claims arising from any breach or default on the part of the supermarket in the performance of its obligations under the terms of the lease.” As such, the court then turned to other lease provisions to determine the responsibilities of each party. Importantly, although the main body of the lease provided that the supermarket was obligated to make “all repairs and replacements to the sidewalks,” the court did not end its analysis there. Instead, they found a conflicting term in the rider which stated that the owner was to “make all structural repairs and the tenant is required to make only nonstructural repairs.” The court then turned to another lease provision which stated that the tenant was required to “make nonstructural repairs to the sidewalks.” Because the rider provided that in the event of a conflict between the rider and the main lease, the rider prevails, the court concluded that the totality of the lease documents established that the responsibility to perform structural repairs of the sidewalk rested with the premises owner, not the tenant supermarket. Therefore, the supermarket was not obligated to indemnify the premises owner, and the supermarket was awarded summary judgment. This case highlights the need for defense counsel to obtain all relevant lease agreements and documents from insured tenants and landowners. When facing a contractual indemnity claim, it is critical to fully parse all lease provisions and interpret them in a way that is consistent with the rest of the agreement, as it could make all the difference in a risk transfer opportunity. Errazuri v. E Food Supermarket Inc .pdf Download PDF • 169KB Previous Next Andrew D. Henriquez Andrew D. Henriquez Associate +1 332 345 4094 ahenriquez@wcmlaw.com Contact

Attorneys Filter by: Filter by: England Florida Associate Long Island New York New Jersey Pennsylvania Counsel Of Counsel Partner Filter Patrick J. Argento Counsel Michael A. Bono Executive Partner Maria E. Dalmanieras Partner Karl Eschelbach IV, Esq. Counsel Ishra Glasswala Associate Andrew D. Henriquez Associate Sydney Kockler Associate Jack McGuire Associate Vito A. Pinto Partner Peter R. Restani Partner James W. Scott Jr. Partner Domenica B. Tomasetti Associate Gina M. Arnedos Partner Nicole Y. Brown Managing Partner Thomas J. Decker Of Counsel Chip M-P George Of Counsel Steven F. Goldstein Of Counsel Alexander Hubschmidt Associate Carol N. Kotsinis Partner Taylor Mitarotonda Associate Sarah Polacek Associate Christopher Roppolo Associate Gary N. Smith Partner Dennis M. Wade Partner E. Alexis Bevis Partner Georgia Coats Partner Chynna S. Demas Associate Brian Gibbons Partner Ross G. Gudis Associate Ryan Hunsicker Associate Jason Laicha Associate Brian T. Noel Counsel Shaun M. Quinn Counsel Jean S. Scanlan Associate Corey Stein Associate Emily C. Walpole Associate Abed Z. Bhuyan Counsel Robert J. Cosgrove Partner Justine Elias Senior Associate Andrew Gibbs Partner William A. Healy IV Associate Steve J. Kim Partner Bruce A. Magaw Of Counsel Martha Osisek Associate Alexander Rabhan Associate Carl J. Schaerf Partner Anand P. Tayal Associate Jessica Whelan Associate

Filter by: Filter by: England Law Clerk Long Island Florida New Jersey Paralegal New York Pennsylvania Filter Helene E. Dalmanieras Paralegal Mark Turner Market Representative Michelle B. Gonsoulin Chief Operating Officer Eileen McGlyn Paralegal Jenny Rajkowski Paralegal Professional Staff

Filter by: England Florida Associate Long Island New York New Jersey Pennsylvania Of Counsel Law Clerk Operations Counsel Partner Paralegal Filter Patrick J. Argento Patrick J. Argento Counsel Michael A. Bono Michael A. Bono Executive Partner Maria E. Dalmanieras Maria E. Dalmanieras Partner Justine Elias Justine Elias Senior Associate Andrew Gibbs Andrew Gibbs Partner Ross G. Gudis Ross G. Gudis Associate Ryan Hunsicker Ryan Hunsicker Associate Jason Laicha Jason Laicha Associate Taylor Mitarotonda Taylor Mitarotonda Associate Sarah Polacek Sarah Polacek Associate Peter R. Restani Peter R. Restani Partner Carl J. Schaerf Carl J. Schaerf Partner Anand P. Tayal Anand P. Tayal Associate Dennis M. Wade Dennis M. Wade Partner Gina M. Arnedos Gina M. Arnedos Partner Nicole Y. Brown Nicole Y. Brown Managing Partner Helene E. Dalmanieras Helene E. Dalmanieras Paralegal Karl Eschelbach IV, Esq. Karl Eschelbach IV, Esq. Counsel Ishra Glasswala Ishra Glasswala Associate William A. Healy IV William A. Healy IV Associate Steve J. Kim Steve J. Kim Partner Bruce A. Magaw Bruce A. Magaw Of Counsel Brian T. Noel Brian T. Noel Counsel Shaun M. Quinn Shaun M. Quinn Counsel Christopher Roppolo Christopher Roppolo Associate James W. Scott Jr. James W. Scott Jr. Partner Domenica B. Tomasetti Domenica B. Tomasetti Associate Emily C. Walpole Emily C. Walpole Associate E. Alexis Bevis E. Alexis Bevis Partner Georgia Coats Georgia Coats Partner Thomas J. Decker Thomas J. Decker Of Counsel Chip M-P George Chip M-P George Of Counsel Steven F. Goldstein Steven F. Goldstein Of Counsel Andrew D. Henriquez Andrew D. Henriquez Associate Sydney Kockler Sydney Kockler Associate Eileen McGlyn Eileen McGlyn Paralegal Martha Osisek Martha Osisek Associate Alexander Rabhan Alexander Rabhan Associate Dominika A. Rybaltowski Dominika A. Rybaltowski Associate Attorney Gary N. Smith Gary N. Smith Partner Mark Turner Mark Turner Market Representative Jessica Whelan Jessica Whelan Associate Abed Z. Bhuyan Abed Z. Bhuyan Counsel Robert J. Cosgrove Robert J. Cosgrove Partner Chynna S. Demas Chynna S. Demas Associate Brian Gibbons Brian Gibbons Partner Michelle B. Gonsoulin Michelle B. Gonsoulin Chief Operating Officer Alexander Hubschmidt Alexander Hubschmidt Associate Carol N. Kotsinis Carol N. Kotsinis Partner Jack McGuire Jack McGuire Associate Vito A. Pinto Vito A. Pinto Partner Jenny Rajkowski Jenny Rajkowski Paralegal Jean S. Scanlan Jean S. Scanlan Associate Corey Stein Corey Stein Associate Rachel A. Wade Rachel A. Wade Operations Manager Team Members

Karl Eschelbach IV, Esq. Counsel New York 332-345-2168 keschelbach@wcmlaw.com Professional Experience With a versatile background in the legal profession, Mr. Eschelbach brings extensive experience in both plaintiff and defense roles across a variety of legal disciplines. Specializing in labor law, personal injury, medical malpractice, and property damage, Mr. Eschelbach has demonstrated an ability and commitment to delivering favorable outcomes for clients. Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education Juris Doctorate, Villanova University, 2012 Master’s Degree, Durham University (UK), 2009 Bachelor’s Degree, Drew University, 2007 Bar Admissions New York

Christopher Roppolo Associate New York +1 332 345 2264 CRoppolo@wcmlaw.com Professional Experience Chris is a graduate of the Villanova Charles Widger School of Law. While at law school, Chris was a two-time participant and quarterfinalist at the Tulane International Baseball Arbitration Competition, where he participated in mock Major League Baseball Salary Arbitration proceedings. He also interned for Rep 1 Sports, in Irvine, CA. Prior to law school, Chris was a two-year letter winner for the University of California, Davis baseball team before he moved on to study at the London School of Economics and Political Science. Chris enjoys traveling, fitness, and exploring the New York City food scene. Professional Activities Member, Pennsylvania Bar Association Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Villanova University Charles Widger School of Law B. A., University of California, Davis Bar Admissions New York Pennsylvania