News Private Land + Public Recreational Use = Immunity (NJ) January 21, 2016 < Back Share to: New Jersey’s Landowners’ Liability Act (“LLA”) provides immunity from certain liability suits to property owners whose land is open for the public’s use and enjoyment along the state’s waterfronts. See N.J.S.A. § 2A:42A. The LLA is New Jersey’s version of a recreation use statue (“RUS”) intended to encourage property owners to provide free public access for outdoor activities such as hunting, fishing, hiking and even simply walking in a waterfront park. Although initially designed to provide incentive to owners of agricultural lands and woodlands to open up their lands to the public without fear of liability, the Act was broadened in 1991 to extend more generally to “premises” on both natural and improved property, even if part of a “commercial enterprise.” In Fujino Niiya v. Grand Cove Master Association, Inc., a condominium association sought immunity in litigation for personal injuries by a woman who tripped and fell on an uneven paver along a walkway adjacent to the Hudson River. Considered a part of New Jersey’s tidal waterways and its shores, the complex was obligated by regulations to maintain 24-hour public access to the riverside walkway. See N.J.A.C. § 7:7E-3:48(e). The Association’s Board President testified that he personally walked on the sidewalk and premises multiple times every day to ensure the public’s safety. The plaintiff testified that it “was a beautiful day,” so she decided to “take a little walk” with her granddaughter along the walkway by the river. In granting summary judgment, the motion judge noted that this was “precisely the situation contemplated by the Legislature” in enacting the LLA. The plaintiff had access to the walkway along the river because of the laws and regulations opening up otherwise private spaces to the public. However, “a critical aspect of that public policy” was “to limit the liability of private developers who provide and maintain access for the public to enjoy the land abutting the Hudson River.” The LLA is a little referenced immunity that offers protection to property owners who provide recreational opportunities to the public. In this case, the judge recognized the policy of encouraging the public enjoyment of such private lands is well-served by enforcing its application. Thanks to Ann-Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Court Stops Short of Ruling in Favor of Shortstop (NY) March 2, 2018 < Back Share to: In Lerman v. Little League Council of New York City Inc., the 10 year old plaintiff was struck in the face by a baseball and injured during Little League practice. This was plaintiff’s very first practice and his mother told the coach that the child had no experience. The coach proceeded to place the plaintiff at shortstop, and the third batted ball struck plaintiff in the face. Plaintiff’s parents had signed the League’s waiver form. In opposition to the Little League and the coach’s motion for summary judgment, the plaintiff’s mother claimed that the defendants breached their duty of reasonable care to the child and were negligent in their supervision and coaching by failing to test the child’s skill set before putting him on the field and by placing him at the “highly skilled” shortstop position despite being warned by his mother that he had never played baseball before. While defendants claimed that plaintiff voluntarily assumed the inherent risks involved in playing baseball, his mother asserted that the defendants created a dangerous condition that caused his injuries by their indifference to his level of skill and experience. In granting defendants’ motion dismissing the complaint, the New York Supreme Court cited the long line of cases holding that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” The court noted that the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport. In contrast, related risks which are commonly encountered or are inherent in a sport, such as being struck by a ball or bat in baseball, are “risks for which participants are legally deemed to have accepted personal responsibility.” The theory of negligent supervision is inapplicable where a plaintiff has assumed the risk. The Court concluded that plaintiff consented, through his parents, to the possibility of being struck and injured by a baseball during practice, and the coach’s decision to place the plaintiff at shortstop was immaterial. Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Plaintiff's Failure to Provide Discovery Results in Complaint Being Stricken (NY) April 26, 2019 < Back Share to: In McNelis v Thomas (2019 NY Slip Op 02861), the Appellate Division reaffirmed its tough stance on the recurring problem of dilatory discovery responses and disregard for the Court’s discovery Orders. The plaintiff, John McNelis, filed a personal injury lawsuit in Queens County Supreme Court. A preliminary conference was held and an Order directed the plaintiff to provide the identify of medical providers the plaintiff treated with as a result of the accident, and for prior treatment received for conditions allegedly aggravated by the accident. The plaintiff did not respond. Two subsequent Orders were issued by the Court directing the plaintiff to provide this discovery. Thereafter, the plaintiff served a response to the defendants' demand for authorizations. But the plaintiff's response included an affidavit stating that he had conducted an unsuccessful search for the names and addresses of his medical providers and had not located any documents which would refresh his recollection as to the names of, among others, his physicians, pharmacies, or insurers. Therefore, the plaintiff could only provide authorizations for three of the 16 items demanded. When the defendants objected to this response, the plaintiff replied that he was "not required to be the investigative agency' for the defense," and that he would sign authorizations if the defendants identified his providers. The defendant filed a motion to dismiss the Complaint based upon the plaintiff’s refusal to provide the discovery and in disregard to the Court’s Orders. Queens County Supreme Court granted the motion pursuant to CPLR 3126, where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," the court may, inter alia, strike that party's pleadings or portions thereof.” The plaintiff appealed to the Appellate Division, Second Department. In its decision, the Appellate Division affirmed the Order dismissing the Complaint, and held "Although courts should resolve actions on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party's] failure to comply with a disclosure order was the result of willful and contumacious conduct." Applying this standard, the Appellate Division found that the plaintiff provided no excuse for his repeated failure, over a period of more than two years, to comply with the Supreme Court's orders directing the disclosure of the names of his medical providers and authorizations to obtain medical records. The plaintiff's belated response that he could not recall the names of his providers and could not find records to refresh his recollection, even as to the names of current providers, was not a reasonable excuse for his failure to comply with the court-ordered disclosure. In conclusion, the Appellate Division held that the Supreme Court providently exercised its discretion by granting the sanction of striking the Complaint. Thanks to George Parpas for his contribution to this post. Please email Vincent F. Terrasi with any questions. Previous Next Contact

Jared M. Kahn Associate New York jkahn@wcmlaw.com 332 345 4496 Professional Experience Jared joined WCM’s New York office, representing clients with a focus on insurance coverage, defense litigation, and personal injury matters. Prior to joining WCM, Jared spent several years representing criminal defendants at a private firm in New Jersey and New York. Previously, he served as a law clerk to the Assignment Judge of Essex County in Newark, New Jersey. His extensive litigation experience has strengthened his ability to confidently advocate for his clients and effectively navigate complex legal matters. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Vermont Law School B.S., Indiana University Bar Admissions New Jersey New York Pennsylvania

News Janitor Keeps Logs, Building Prevails (NY) September 12, 2019 < Back Share to: In Thomas v. Sere Hous Dev Fund Corp.,the Appellate Division, First Department addressed the duty of care owed by a building to a plaintiff who gets injured on their property. The accident involved an individual who alleged injuries when he slipped and fell on a wet substance on the interior stairs of the defendant’s building. The defendant testified as to its janitorial schedule during a customary day. The Supreme Court, Bronx County denied the defendant’s motion for summary judgment, which was unanimously reversed by the Appellate Division. The Appellate Court stated that the defendant was able to establish a reasonable cleaning routine, which precluded liability. As such, the Court held that since the plaintiff failed to raise a factual issue that such routine was manifestly unreasonable, that summary judgment should have been granted in favor of the defendant. This case is a great example of the importance for building owners to implement a reasonable and regular cleaning routine as it can preclude them from liability. As exhibited in this matter, a reasonable cleaning routine can allow a case to be dismissed, without having to go through a strenuous and costly trial. Thank you to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has four offices across three states, including in New York City, New Jersey, Pennsylvania and Long Island, and serves its clients in matters across the country. ​ WCM is a firm of trial lawyers who partner About Us Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has seven offices across six states, including in New York, New Jersey, Pennsylvania, Florida, Louisiana, and Texas and serves its clients in matters across the country. WCM is a firm of trial lawyers who partner with our clients to devise effective strategies to manage risk and to bring closure to complex matters as quickly as possible. And if the matter warrants, we stand ready to fight the end game – whether trial by jury or argument to an appellate bench. WCM is committed to maintaining our reputation for excellence and to letting our results speak for themselves. So, if you need help sorting out a legal mess, count on us. WCM solves defense and coverage issues cleanly, quickly and efficiently. About Us Best Practices Partner Participation A partner reviews all substantive correspondence, letters and reports to our clients, and reviews every dispositive motion before it is served and filed. Prompt Communication We respond to our client’s telephone calls or e-mails within 24 hours, if not sooner. Clients are immediately advised of arbitration dates, mediation dates and trial dates. Clients should never have to ask twice for anything. Top quality service to our clients is our shared vision. Result Driven Strategies We are not file processors or paper pushers. Our focus is on the end result and we execute a strategy designed to achieve our client’s goal. Every call, every letter, every analysis of every document in the file, and every discussion with the other side is undertaken as part of our mutual strategy. Attorney Accountability Files are not shuffled from associate to ass ociate. Whenever possible, the assigned attorney appears at the deposition or substantive court conference. When that cannot happen, our attorneys are still prepared to be the “answer person.” Best Practices

News Headstone Slip Case Will R.I.P. (NY) February 2, 2018 < Back Share to: In Carriero v St. Charles/ Resurrection Cemetery, the Appellate Division reversed a Supreme Court decision and upheld the principle that notice is a mandatory element of a premises liability case. The plaintiff alleged she was injured at the defendants' cemetery in Nassau County. As she was visiting the graves of her family members, she took a step near one of the headstones and her left foot began to sink into the ground. The spot where her foot sank into the ground was covered with grass, and it appeared to be level. According to the plaintiff, her father had stepped in the exact spot seconds before her accident without incident. The plaintiff sued in Kings County Supreme Court, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appealed. The appellate court found that the defendants did not have notice of the alleged condition. A defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence. Further, to constitute constructive notice, a dangerous condition "must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.” In reversing the Supreme Court’s decision the Appellate Division ruled that summary judgment was warranted because the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create or have actual or constructive notice of the dangerous condition before the incident occurred. Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Courts in Pennsylvania Require Actual Evidence to Prove Bad Faith (PA) April 12, 2018 < Back Share to: The Superior Court of Pennsylvania recently affirmed a trial court opinion, which granted an insurance company’s motion for summary judgment to dismiss the appellant’s complaint alleging the insurance company acted in bad faith by initially denying coverage for water damage to the appellant’s building. In the case of Reynolds v. Pennsylvania National Casualty Insurance Company, (“Penn National”) issued an all-risk business insurance policy to Reynolds, which provided coverage for water damage to Reynold’s building (the “Policy”). The Policy, however, excluded coverage for damages to the interior of the structure caused by rain, except where the rain entered the building because of damage caused by a covered loss. The Policy also included an endorsement which allowed coverage of up to $100,000 “for water damage caused by a backed up sewer, drain, or sump pump.” After receiving notification of the initial water damage, Penn National sent a reservation of rights letter stating that Penn National would investigate the cause of loss and assign an expert to examine the damaged roof. Based on Penn National’s investigation, which determined that the building’s roof was in “good condition,” Penn National sent Reynolds a denial letter. Subsequently, one of Reynold’s employees reported that on the day of the water damage, he witnessed a blocked drain that forced the accumulation of 18 inches of water inside the building. Accordingly, Reynolds requested that Penn National reconsider its initial denial. In doing so, Penn National agreed to rely on Reynold’s expert report, which indicated the “plugged drain caused a backup of rainwater on the roof.” Accordingly, Penn National granted the limited coverage of $100,000 under the Policy’s Business owners endorsement, which was for damage caused by backed up sewers and drains. While the Superior Court of Pennsylvania did consider the extenuating circumstances surrounding Penn National’s initial denial, ultimately the Court affirmed the trial court’s decision and analysis because Reynolds failed to provide any evidence that Penn National’s initial denial of coverage was done in bad faith. Thanks to Lauren Berenbaum for her contribution for this post. Please write to Vito A. Pinto for further information. Previous Next Contact

News Too Little, Too Late: Appellate Division Upholds Disclaimer for Untimely Notice (NY) February 28, 2020 < Back Share to: In Dritsanos v Mt. Hawley Ins. Co., the New York Appellate Division, Second Department, addressed the issue of whether plaintiffs can collect judgements from insurers where the insurer did not receive timely notice of the claim. The underlying case involved liability over a personal injury. In July 2008, the plaintiff was allegedly stabbed in a nightclub in Brooklyn owned and operated by the insured, Ambela Corp. The plaintiff sued on December 9, 2008 to recover for personal injuries, naming Ambela as one of the defendants. The insurer, Mt. Hawley did not receive any notice of the lawsuit until June 2009, when the insured’s broker sent a letter enclosing the summons and complaint. Although Mt. Hawley disclaimed coverage for untimely notice, the plaintiff eventually won a judgment against Ambela and the assailant. The plaintiff then commenced an action against Mt. Hawley under Insurance Law § 3420(a)(2), which expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer. Mt. Hawley moved for summary judgment, arguing that disclaimer was valid since they did not have timely notice from the plaintiff. In reviewing this issue, the Appellate Division agreed with the insurer. While normally the insurer disclaiming for untimely notice would have to demonstrate that it was prejudiced by the delay, such showing was not needed in this case since the policy predated that requirement in the insurance code. Rather, the Second Department held that merely hiring an attorney and commencing the lawsuit was insufficient as a legal matter to notify the insurer. Thus, because the plaintiff did not act diligently to notify Mt. Hawley, their disclaimer was valid and the plaintiff could not recover on the judgment. The decision underscores the importance for insurers to investigate claims and provide timely disclaimers. Thanks to Andrew Debter on his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Education Doesn't End with High School At Group Home for Charitable Immunity Act in NJ December 16, 2010 < Back Share to: “A rose by any other name would smell as sweet.” Yet, when it comes to application of the Charitable Immunity Act every effort is made to re-label and rename the essential nature of an eligible organization to avoid the immunity offered. In a tragic case involving the death of a developmentally disabled young resident of a community group home, his estate tried to portray the home as other than an educational organization. The decedent had been a resident from age eight to twenty-one. He had attended elementary and secondary education with the program. Even after attaining the age of eighteen, he was still subject to an Individual Habilitation Plan that addressed his continuing life skills development. This Plan included a goal with respect to small convenience store purchases. It was during an outing to a convenience store that the decedent choked on a bagel, which ultimately resulted in his death. Despite arguments that the educational scope of the organization should be limited in time to when the decedent attended school, the Court found as a matter of law that his continued participation in life skills training fell within the home’s educational mission. However, since the organization’s by-laws listed its organizational purpose as exclusively “charitable,” the Court also looked at the home’s entitlement to immunity under this more generic qualifier. While an exclusively “educational” organization need not prove its “charitable” status through funding information, this is not so for a more broadly defined charitable organization. Although the organization raised less than 2% of its revenue from charitable donations (about $1.1 million), the court disagreed that a pre-set revenue percentage factor would be determinative of the charitable status of the organization. The Court concluded that the combination of educational and charitable elements for the group home clearly placed it within the ambit of the Act. See Komninos v. Bancroft Neurohealth, Inc., http://www.judiciary.state.nj.us/opinions/a4041-09.pdf If you would like more information, please contact Denise Ricci at dricci@wcmlaw.com Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

News “Initial Permission” Rule Grants Insurance Coverage to Drunk, Unlicensed Driver (NJ) July 29, 2016 < Back Share to: A recent appellate case, NJM Ins. Co. v. Fermin, involved a coverage dispute between automobile insurance carriers. Danny Nunez, an unlicensed driver, operating Diodelcy Fermin's vehicle, with Fermin's permsision, collided with another vehicle that was insured by plaintiff NJM Insurance Co. Following the accident, Nunez was convicted of assault by automobile and causing injury while driving with a suspended license, and driving while intoxicated. NJM paid both the victim’s PIP benefits and property damage and subsequently filed a subrogation action against Fermin seeking to recover the property damage payments. Fermin’s insurance carrier, CURE, moved for summary judgment arguing that it was not obligated to provide liability coverage because Nunez did not have a valid driver’s license on the date of the accident and therefore he could not form a reasonable belief that he was entitled to operate Fermin’s vehicle. CURE relied on an exclusion in its policy that read: “We do not provide Liability Coverage for any ‘insured’…using a vehicle without a reasonable belief that that ‘insured’ is entitled to do so.” The trial court ruled that there was coverage under the CURE policy, which lead to an appeal. On appeal, CURE renewed its arguments contending that the policy excludes liability coverage when the vehicle’s driver does not have a reasonable belief that he is entitled to operate the vehicle. The appellate court affirmed the trial court’s finding, citing to a more controlling line of cases that had adopted the “initial permission” rule in determining that coverage will apply in favor of an innocent third-party where initial permission existed to drive the vehicle. Under the “initial permission” rule, if a person is given permission to use a vehicle in the first instance, any subsequent use while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile insurance policy. The appellate court concluded that because Nunez had express permission to drive Fermin’s vehicle, the “initial permission” applied and the “reasonable belief” exclusion cannot be interpreted as eliminating coverage where there was permission of the owner to use the vehicle. To look at it another way, Nunez did not have permission from the state of New Jersey, but he did have permission from Fermin -- and that was enough. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact