News 2nd Dept. Sides with the Medical Records (NY) January 3, 2020 < Back Share to: In Wettstein v. Tucker, the Appellate Division, Second Department addressed whether the two plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of a motor vehicle accident. The defendant moved for summary judgment to dismiss the complaint on the ground that neither plaintiff sustained a serious injury. Plaintiff Timothy alleged injuries to his spine and left shoulder, and plaintiff Michelle alleged injuries to the cervical region of her spine as a result of the subject motor vehicle accident. The Supreme Court, Nassau County granted the defendant’s motion for summary judgment, which was affirmed by the Appellate Division. The Appellate Division stated that the defendant submitted medical evidence that the plaintiffs’ injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (including under the 90/180 – day category) and that each plaintiff suffered from pre-existing conditions. This decision serves as a reminder that when making a summary judgment motion on the grounds that the plaintiff did not sustain a serious injury that it is imperative to submit medical records with your motion to prevent the plaintiff from raising a triable issue of fact. Additionally, the medical records should try to focus on the severity of the alleged injuries, and if the plaintiff suffers from any pre-existing conditions. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Insurers May be Liable for Foreseeable Consequences if there is a Breach of the Covenant of Good Faith and Fair Dealing. October 31, 2016 < Back Share to: In Mano Enterprises, Inc. v. Metropolitan Life Insurance Company, plaintiff attempted to assign its policy to a third-party. The insurance company then placed a hold on the policy that resulted in a lapse of the policy due to non-payment of premium. The Court held that there were issues of fact as to whether the insurance company appropriately refused to process the assignment of the policy by the plaintiff, and any damages for the foreseeable consequences. Insurers should remain cognizant of potential liability incurred in the event that policy determinations effect contractual obligations. Thanks to Valerie Prizimenter for her contribution to this post.           Previous Next Contact

News WCM Victorious on Statute of Repose in PA Construction Defect Lawsuit. July 17, 2020 < Back Share to: WCM Partner Bob Cosgrove and Philadelphia associate Zhanna Dubinsky won a motion for judgment on the pleadings in the Pennsylvania Court of Common Pleas, Chester County. In John Adams, et al. v. Wilkinson Enterprises, Inc., et al., the plaintiffs were the owners of luxury homes in the Chester County, Pennsylvania area who had purchased their new homes in 2003 and 2004. The plaintiffs alleged that after they assumed residency, their homes began to suffer from a myriad of construction defect problems. Our client was one of the contractors that had helped build the houses. Notwithstanding their claimed knowledge of the defects, plaintiffs did not commence their actions until December of 2016. We moved for judgment on the pleadings and argued that the lawsuit was untimely and a violation of the statute of repose. Pennsylvania’s statute of repose abolishes and eliminates causes of action that occur twelve years after completion of construction of an improvement to real property. The Honorable Edward Griffith agreed and entered judgment on the pleadings dismissing all claims against our client. For more information about this post, please contact rcosgrove@wcmlaw.com . Previous Next Contact

Robert J. Cosgrove Executive Partner Pennsylvania, New York, New Jersey rcosgrove@wcmlaw.com +1 267 239 5526 Professional Experience A courtroom-tested trial lawyer and appellate advocate, Executive Partner Robert J. Cosgrove has handled cases in state and federal venues across the United States, as well as in the International Court of Commerce. Bob litigates a very wide range of matters, including premises and liquor liability cases; trucking and motor vehicle claims; product liability and product recall suits; personal care home, senior living and home health aide cases; and cases involving construction defects, catastrophic personal injury and significant property damage claims. He defends individuals and businesses in complex professional liability and errors and omissions cases, advises clients on fraud-based and other first- and third-party coverage issues, and investigates and litigates fine art, jewelers block policy and cargo cases. A Certified Information Privacy Professional, US, (CIPP/US) and a Certified Information Privacy Manager (CIPM) through the International Association of Privacy Professionals (IAPP), he advises on cases related to fraud, data privacy, and cybersecurity claims and investigations. Before joining WCM, Bob was an Assistant District Attorney with the Nassau County (NY) District Attorney’s Office, where he prosecuted cases ranging from violations of environmental conservation law to gang assaults and high-level narcotics transactions. +1 212 267 1900 Honors and Distinctions Bob is OSHA 10 certified and is a Certified Information Privacy Professional, US, (CIPP/US) and Certified Information Privacy Manager (CIPM) through the International Association of Privacy Professionals (IAPP). At Fordham University, Bob was a Stein Scholar in Public Interest Law and Ethics (which is where he met his wife with whom he has four children) and a member of the Fordham Environmental Law Journal. He was inducted into Georgetown University’s Theatre Hall of Fame in 2003. Professional Activities A Thompson Reuter Super Lawyer, (No aspect of this advertisement has been approved by the Supreme Court of New Jersey. A description of the Super Lawyers selection methodology can be found here .), Bob is a frequent speaker and conducts seminars for organizations, including the International Underwriting Association of London and the Property & Liability Resource Bureau, as well as for numerous clients. Bob’s writing has appeared in various books and journals. Bob is a member of the Multi-Million Dollar Advocates Forum, a by-application-only national association of trial lawyers who have obtained multimillion-dollar verdicts and settlements. He has been elected a Fellow of the American Bar Foundation, a research organization dedicated to the study of law, legal institutions and legal processes. In addition to his work for clients, Bob sits as a judge pro tempore, handling settlement conferences in the Philadelphia Court of Common Pleas. He also serves as a member of WCM’s Management Committee, the firm’s governing body. Bob is the former President of the Philadelphia Association of Defense Counsel and the current Vice-President, Northeast Region of the Pennsylvania Defense Institute. He is a member of the Regis Bar Association. Publications Start Spreading the News: A Primer on Cyber Legislation in New York, Defense Research Institute’s Data and Security Dispatch, Volume 6, Issue 1 (May 27, 2021) (co-author with John Amato). Is Our Biometric Data Protected, Counterpoint (December 2020) (co-author with Lauren Berenbaum). Recent Changes to PA’s Statute of Limitations Spark Coverage Questions, Counterpoint (January 2020) (co-author with Lauren Berenbaum). Can You Resell Misappropriated Art?, Freeman’s Newsletter, (January 2019) (co-author with Lauren Berenbaum). Porsches in London: Software, Cars and Recalls, Defense Research Institute Data and Security Dispatch, (December 2018). Somebody’s Watching Me: Defending Data Breach Claims, Counterpoint, (May 2015) (co-author with Adam Gomez). Winning One for the Gipper: The Looming Legal Threats to American Football, Counterpoint (December 2012) (co-author with Paul Clark and Adam Gomez). Surveillance! Out of the Shadows and into the Courtroom, Counterpoint, (April 2012) (co-author with Remy Cahn). How Many Acts Can Comprise a Single Occurrence? The Pennsylvania Supreme Court Weighs In, 2 Bloomberg Law Reports (Insurance Law) 11 (2008). N.Y. Ins. §3420(d) Does Not Apply to Tenders Between Insurers, 235 N.Y.L.J. 74 (2006) (co-author with John Mulcahy). Sidewalk Liability Is Transferred from New York City to Landlords, 230 N.Y.L.J. 52 (2003) (co-author with Paul F. Clark). A New Vision of Lawyers, 26 Fordham Urb. L.J. 1669, (May 1999). News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Fordham University School of Law B.S.F.S., Georgetown University Bar Admissions New York New Jersey Pennsylvania Court Admissions Southern District of New York Northern District of New York Eastern District of New York Western District of New York District of New Jersey Eastern District of Pennsylvania Middle District of Pennsylvania Western District of Pennsylvania Second Circuit Court of Appeals Third Circuit Court of Appeals United States Supreme Court

News 3rd Circuit Imposes Major Change in PA Product Liability Law. April 21, 2009 < Back Share to: In product liabity cases, PA has followed the Restatement 2nd of Torts. Under the Restatement 2nd, only "intended users" and not bystanders can maintain a product liabilty claim. The 3rd Circuit has now just overturned that understanding. In the case of Berrier v. Simplicty, et al., the 3rd Circuit has just ruled that it believes that the Pennsylvania Supreme Court is likely to soon adopt the Restatement 3rd of Torts. Under the Restatement 3rd, a bystander can maintain a product liability claim. This represents a major change in PA law. http://www.ca3.uscourts.gov/opinarch/053621p.pdf Previous Next Contact

News Failure To Facilitate A Meeting Of The Minds On A Pretrial Agreement Is Perilous February 3, 2023 < Back Share to: In Jones v. Blue Ridge Mfg., LLC, 4D21-1799 (Fla. 4th DCA Dec. 14, 2022), the parties stipulated that the death was the result of decedent’s head’s “direct or indirect contact” with defendant’s vehicle. There was evidence that decedent suffered a basal skull fracture caused by decedent’s head’s “direct or indirect contact” with defendant’s truck. There was also evidence that the basal skull fracture was the result of inertial forces (the fatal injury believed to have been suffered by race car driver Dale Earnhardt) not caused by decedent’s head’s “direct or indirect contact” with defendant’s truck. The defendant sought to withdraw the stipulation pretrial, arguing that the meaning of “direct or indirect contact” was not clear. The court declined to do so but did allow the defendant to argue its interpretation of the stipulation and put on evidence supporting that interpretation. On appeal, the court discussed the purpose of, legal analysis applied to, pretrial stipulations. The court recognized that stipulations were valuable to a “well-run and fair trial,” warned that “the failure to facilitate a meeting of the minds on a pretrial agreement is perilous,” and cautioned that “stipulations be clear, positive, definitive, and unambiguous.” Because it could “fairly be read to mean that the parties intended the ‘direct or indirect’ contact issues to be determined by the jury,” the appellate court found the stipulation ambiguous. Applying this finding, the Court held that the trial court did not abuse its discretion in allowing the jury to determine the meaning of the stipulation or in allowing extrinsic evidence regarding the meaning of the stipulation. The takeaway: Be aware of the nuances presented by the evidence, and do not let your familiarity with the evidence result in a less than clear stipulation. Thanks to Charles "Chip" George for this article. Please contact Chip with any questions. Previous Next Contact

News No PIP Coverage For You (Unlicensed Driver) March 22, 2019 < Back Share to: In Norma Blanco-Sanchez v. Personal Service Insurance Company, the Superior Court of New Jersey Appellate Division recently held that an unlicensed driver who received permission to drive a car from its owner with knowledge the driver was unlicensed, may not recover personal injury protection (PIP) benefits under the New Jersey Automobile Reparation Reform Act, as a matter of public policy. The appellate court affirmed the lower court holding that Personal Service Insurance Company did not owe coverage to the Plaintiff, Norma Blanco-Sanchez, for injuries sustained after an auto accident when she was moving her mother’s car to avoid a street sweeper. Specifically, the mother’s policy provided PIP coverage up to $15,000 in medical bills. The policy defined “eligible injured person” as “the named insured or any relative of the named insured, if the named insured or relative sustains bodily injury as a result of any accident while occupying, using, entering into, or alighting from a private passenger auto.” It further excluded from coverage “bodily injury of any person at the time of the accident . . . [who] [w]as operating or occupying a private passenger auto without the permission of the owner or other named insured.” Personal Service Insurance argued it was impossible for an unlicensed driver like Blanco-Sanchez to receive permission to drive an auto. The trial court concluded that the insurer properly disclaimed coverage because “you can't give permission to extend the coverage in a situation where they couldn't have [gotten] coverage to begin with." In affirming the decision, the Appellate Division, noted that “neither [her mother’s] permission nor defendant's issuing her a policy of insurance gave plaintiff an unlimited right to operate an automobile knowing that she was unlicensed and then to assert a first-party claim under defendant's policy.” The court distinguished the public policy concerns present in third-party liability coverage from those present in PIP claims and held that “an owner cannot give permission to a driver who is known to be unlicensed.” Accordingly, this case offers some assurances to PIP insurers that they may not be on the hook for unlicensed drivers, as the New Jersey Appellate Division affirmed that such coverage would contravene public policy. Thanks to Douglas Giombarrese for his contribution to this post. Please email Colleen Hayes with any questions at chayes@wcmlaw.com Previous Next Contact

News Step Class Not Inherently Dangerous June 25, 2009 < Back Share to: In Devorah Meisels v. Lucille Roberts Health Clubs, Inc., the plaintiff was injured when she slipped on an excercise step while participating in a step class. The plaintiff claimed that she slipped because the fuzz from a newly-installed carpet had become caught in the grooves of the step. The defendant moved for summary judgment arguing that the plaintiff testified that she first noticed the fuzz 30 minutes prior to the accident, but continued to use the step without complaint. The trial court denied the defendant's motion for summary judgment, but the Appellate Division reversed and granted the defendant's motion for summary judgment reasoning that the condition of the carpet fuzz was open and obvious and not inherently dangerous condition. http://www.nycourts.gov/reporter/3dseries/2009/2009_05303.htm Previous Next Contact

News Grapes of Wrath: Sam’s Club and the Mode of Operation Rule (NJ) September 17, 2021 < Back Share to: In a typical slip and fall case, a plaintiff needs to prove that a defendant knew or should have known about a dangerous condition on the premises that caused the plaintiff to fall. However, in certain ‘self-service’ settings, New Jersey has applied the ‘mode of operation’ rule to certain commercial businesses. The mode of operation rule applies when a business permits its customers to handle products and equipment unsupervised by employees. This is a very plaintiff friendly rule. In Jeter v. Sam’s Club, a New Jersey Appellate Court further limited the application of the mode of operation rule. No. A-0716-19, 2021 WL 1961122, at *2 (N.J. Super. Ct. App. Div. May 17, 2021), In Jeter, plaintiff slipped on a grape in Sam’s Club. Plaintiff failed to prove constructive or actual notice. Therefore, she tried to apply the mode of operation rule, arguing that because customers take their own grapes and can open the grape containers in the store, food shopping in Sam’s Club should be considered a self-service operation. The Court rejected this argument. While stating Sam’s Club is a self-service operation, Sam’s Club’s grapes were kept in clamshell containers. Opening the grape containers before purchasing was characterized as tampering with the product, and the nature of selling grapes in closed containers did not result in a pattern of conduct or incidents that would support application of the doctrine. The Court expressly stated the mode of operation doctrine applies when “a business permits its customers to handle products and equipment, unsupervised by employers.” Because Sam’s Club did not invite customers to open grape containers in the store prior to purchase, the mode of operation doctrine did not apply. Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Plaintiff Fouled By Dust On Basketball Court (NY) July 19, 2019 < Back Share to: In Samuels v. Town Sports International LLC, plaintiff brought suit when he slipped and fell on the sideline of a basketball court on what he believed was dust coming from an above HVAC unit. Defendant moved for summary judgment on the theory of no notice and assumption of risk. The lower court granted summary judgment on defendant’s assumption of the risk argument. The lower court held “those who seek to recover for injuries sustained while engaged in sporting events, must overcome the assumption of risk doctrine. Thus, one who engages in a sport or recreational activity consents to those risks which are inherent in the activity.” Plaintiff’s mere participation in a basketball game denotes acceptance of the risk of injury. Moreover, he complained of conditions of which he was aware because he was a fairly frequent player on defendant’s basketball court, and had previously noticed the dust and the slipperiness on the court. Accordingly, the lower court found that the plaintiff assumed the risk associated with playing on a basketball court in such condition. Plaintiff appealed. The Appellate Division, First Department reversed the lower court decision. While the Appellate Division acknowledge the assumption of risk defense, they held the lower court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant’s duty of care but it does not exculpate a landowner from liability for ordinary negligence in maintaining its premises. The Appellate Division found that the defendant failed to properly maintain the court and that dust was not an open and obvious condition or inherent in the sport of basketball. The Appellate Division likened dust on the basketball court to a tennis player that trips on a torn net; not a risk inherent in the sport of tennis so as to relieve a premises owner of liability, as a matter of law. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News No Duty on Landlord to Protect Against Staircase Full of Urine August 3, 2010 < Back Share to: Plaintiff slipped in a puddle of urine in the staircase of her building owned by the New York City Housing Authority. The plaintiff had affidavits from several nonparty witnesses who alleged that urine puddles in the staircase were a recurring problem. However, the plaintiff failed to disclose the names of those witnesses. As such, the court granted the Housing Authorities' motion for summary judgment, finding that the plaintiff failed to show that the building owner had actual or constructive notice of the gross and hazardous condition. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06235.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

Texas Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – Texas As of October 2025, Wade Clark Mulcahy opened our newest office in Dallas, Texas, expanding our legal services into the region. Led by Teresa Bohne, the Dallas team handles a broad range of matters with a concentration on coverage, in both state and federal courts. Consistent with our firm's standards across all offices, the Texas team remains committed to delivering the same level of excellence and outstanding results that define Wade Clark Mulcahy. Contact Details 8951 Cypress Waters Blvd Suite 1068, Coppell, TX 75019, USA 214 785 5187 Attorneys and Professional Staff Teresa G. Bohne Partner