News First Department Takes Expansive View on both “Altering” Work and “Elevation-Related Risks” as Defined by N.Y. Labor Law November 17, 2023 < Back Share to: Recently, in Keilitz v. Light Tower Fiber New York, Inc. , 2023 N.Y. Slip Op. 05661 (1st Dep’t 2023), the First Department ruled on a plaintiff construction worker’s appeal, after the lower court granted summary judgment to defendants on plaintiff’s claims arising from Labor Law § 240(1). Plaintiff, an electrician, was installing fiber optic cables underground in a manhole, when a vacuum being used at street level fell and struck the plaintiff on the head. At issue was whether the plaintiff was engaged in a protected activity enumerated in Labor Law § 240(1), and whether the vacuum at street level posed an elevation-related risk contemplated by Labor Law § 240(1). First, the Appellate Division held that plaintiff’s work constituted “altering” work, contrary to the trial court’s findings that his work merely entailed “feeding cable through a preexisting hole.” Instead, the First Department found that plaintiff’s installation of fiber optic cables was part of a larger project that would ultimately require drilling holes into communications rooms, and thus constituted altering work as protected within Labor Law § 240(1). Second, the court disagreed with the trial court’s conclusion that the vacuum’s position at ground level removed plaintiff’s case from the Labor Law § 240(1) protections for elevation-related risks. Rather, the court held that since the plaintiff was working underground, with a significant elevation differential between him and the vacuum at ground level, his work posed an elevation-related risk protected by New York Labor Law. Accordingly, the First Department granted summary judgment in favor of plaintiff for his Labor Law § 240(1) claim. This case serves as a reminder of N.Y. Labor Law’s liberal construction of protected work, particularly in the First Department, and that protections against elevation risks under Labor Law § 240(1) can still be implicated even if the “risk” is located at ground level. Keilitz v. Light Tower Fiber New York Inc. .pdf Download PDF • 157KB Previous Next Contact

News NJ "Substantial Factor" Sufficient Medical Causation Proof in Mesothelioma Suit April 7, 2010 < Back Share to: Mark Buttitta developed mesothelioma at age 49 years old and died a little more than one year later. In litigation filed on his behalf and pursued by his estate following his death, he alleged that he had been exposed to asbestos at a General Motors distribution warehouse where he worked as a "picker" filling orders for parts that included asbestos containing products. His direct exposure was limited to three summers and winter breaks during 1971-1973 when he was otherwise enrolled at Colgate University. He also claimed indirect exposure to asbestos fibers that his father and brother carried home from their work at GM. While a number of defendants in the case settled, two defendants proceeded to trial including Borg-Warner, a clutch supplier, and Asbestos Corp. Ltd, a Quebec supplier of raw asbestos to GM. The jury returned a verdict in excess of $30 Million dollars. At issue in the appeal was the legal standard of causation applied by the trial court. Generally a plaintiff in a product liability action must prove that the product was defective when it left the manufacturer's control and that defect caused injury to a reasonably foreseeable user. In a toxic tort product liability action, the plaintiff must also prove medical causation, e.g. exposure to the defendant's asbestos product caused an illness. For asbestosis and lung cancer cases, medical causation is proven on the basis of frequency, regularity, and proximity of exposure. However, the court noted testimony that mesothelioma can develop from the cumulative effects of only minimal or infrequent exposure thereby challenging the rigid application of the medical causation standard generally applied. Hence, the appellate court approved of the trial judge's application of a "substantial factor" test that required only that the plaintiff provide direct or circumstantial evidence from which a reasonable jury could conclude that at some point in his work history, Buttitta was exposed and in close proximity to the defendant's product frequently and on a regular basis. Although the defendants also challenged the trial court's denial of a remittitur, the appellate division found that the verdict was not so disproportionate that it shocked the judicial conscience. If you have any questions about this post, please email Denise Ricci at dricci@wcmlaw.com . See Buttitta v. Allied Signal at http://www.judiciary.state.nj.us/opinions/a5263-07a5268-07.pdf Previous Next Contact

News Co-Worker's Affidavit Sufficient To Defeat Summary Judgment in Labor Law Case February 29, 2012 < Back Share to: In Silva v. FC Beekman Associates, LLC, the plaintiff was injured when he fell 14 feet from a scaffold while working in the elevator shaft of a high rise building in Manhattan. The plaintiff sued the owner of the building and general contractor alleging a violation of Labor Law 240(1 based on a claim that there were no railings or safety net around the scaffold he was working on and he was not provided with a harness. At the close of discovery, the plaintiff moved for summary judgment. The defendants opposed the motion by providing an affidavit from the plaintiff's co-worker, James Kern, who stated that he was working with the plaintiff and the scaffold had railings on two sides. However, Kern did not witness the accident. The Supreme Court, Queens County granted the plaintiff's motion, holding that the affidavit was hearsay because Kern did not state that both railings were in place at the time of the plaintiff's accident. The Appellate Division, Second Department reversed the lower court's decision, holding that Kern's affidavit was based on his personal observations and the fact that he did not specifically state that the railings were present "at the time of the accident" was not dispositive. The Court further noted that the statement, when read in proper context and in its totality, is clear that Kern was referring to the time of the subject accident. Accordingly, Kern's affidavit created a question of fact that precluded summary judgment. Thanks to Ed Lomena for his contribution to this post. For more information about this post, please contact Nicole Brown at nbrown@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01236.htm Previous Next Contact

News Absence of Work Logs Overturns Dismissal of Third-Party Claim November 17, 2023 < Back Share to: The plaintiff in Guiles v Vassar Bros. Hosp. , 2023 NY Slip Op 05593 (Nov. 8, 2023) was on her way to the emergency room at Vassar Brothers Hospital when she was caused to slip and fall on ice in the entry way of the ER. After she sued the Hospital, the Hospital brought a third-party action against their landscaper, who had agreed to provide snow and ice removal services. The landscapers moved for summary judgment dismissing this third-party complaint specifically against claims of contractual and common law indemnification. Although it was granted by the lower court, the 2nd Department overturned on appeal. The 2nd Department pointed out that claims of contractual indemnification are wholly founded on the language in the relevant contract. The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. Id. Here, the contract provided that the landscaper would indemnify the Hospital if an accident occurred because of nonperformance of duties, which included ice checking and application of salt. The landscaper being unable to establish that they did perform their services on the date of the accident, made the indemnity claims stand regardless of the opposition. If the landscaper had documentation, such as a log that shows when each ice/snow check was done, it would have gone directly to the heart of the claims against them. Now, instead, regardless of whether the landscaper adequately did their job, the claims stand against them, and they face liability. Guiles v. Vassar Bros. Hosp. .pdf Download PDF • 603KB Previous Next Contact

News Labor Law 240 May Be Applicable Even If No Defect To Ladder June 8, 2009 < Back Share to: In Nakis v. Apple, defendant Apple Computer, Inc. hired plaintiff to determine the cause of a malfunctioning air conditioner. During plaintiff's work, he fell from an A-Frame Ladder after he received an electrical shock. There was no apparent defect in the ladder. The Supreme Court, New York County, addressed two issues: 1) whether the work on the air-conditioning unit was "routine maintenance, which is not covered by Labor Law section 240, or "repair work," which is covered by the statute; and 2) whether summary judgment is proper when there is no defect in the ladder, and plaintiff fell because of an electrical shock. The Court held that 240 applied because plaintiff was performing repair work to an inoperative air conditioner as opposed to replacing a component because of normal wear and tear. The Court further held that "the fact the plaintiff fell from a ladder because of an electrical shock does not preclude recovery under Labor Law." Thanks to Justin Rowe for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29220.htm Previous Next Contact

News WCM Achieves Defense Verdict in Allentown, PA Farming Trial May 16, 2013 < Back Share to: Philadelphia, PA -- Partner Bob Cosgrove and associate Remy Cahn obtained a defense verdict in the case of Anthony Tosco, et al. v. Helen Kohler, et al., PA Court of Common Pleas, Lehigh County. In the case, Tosco, a real estate developer, alleged that the historical farming practices employed by Kohler and her farming tenant Houstin Lichtenwalner had unreasonably and unnaturally diverted and increased the flow of water onto Tosco’s commercial property and thereby caused almost $300,000 in property damage. At trial, we challenged the plaintiffs’ contentions and argued that the employed farming practices had not, in fact, changed the natural water patterns. In a 10-2 decision, the jury agreed with our version of events and found in favor of our client. Previous Next Contact

News The Inherent Hazards Of Sanitation Work Preclude Action When Worker Killed By Hit-And-Run Driver July 18, 2008 < Back Share to: In Consalvo v. City of New York et al, a hit-and-run driver struck and killed a sanitation worker who was removing a dead cat from a roadway. In this wrongful death action, the plaintiffs asserted that the defendants were negligent in failing to dispatch two sanitation workers at the time of this accident. The defendants moved for summary judgment arguing that they breached no duty owed to the decedent. The trial court denied the defendants' motion. In reversing the trial court and dismissing the plaintiffs' case, the Appellate Division, Second Department held that "the duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the employee is to perform nor to secure the safety of an employee against the condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the employee." Here, with ten years on the job, this decedent's work included picking up dead animals from the roadway and the risk of being struck by a car was readily observable. Moreover, plaintiffs failed to produce any evidence that the defendants were required to assign more than one worker to retrieve a dead cat. http://www.nycourts.gov/reporter/3dseries/2008/2008_06186.htm Previous Next Contact

News WCM Is Pleased To Announce That Effective July 1, 2013, Brian Gibbons Has Been Promoted To Counsel July 12, 2013 < Back Share to: A former prosecutor in the Bronx and WCM attorney since 2009, Mr. Gibbons defends individuals and businesses from a variety of general liability claims. He also handles first party property matters during the claim investigation and in litigation. A New York native, Mr. Gibbons is a graduate of Boston College and St. John’s University School of Law. He is an active member of the Regis Bar Association and a new member of the Nassau County Bar Association. Previous Next Contact

Alexandra McShane, Pa.C.P. Litigation Paralegal Pennsylvania amcshane@wcmlaw.com 267.279.9951 Professional Experience At WCM, Alex works as a Litigation Paralegal on a variety of general litigation matters. She began her legal career in 2016 at a boutique health law firm in Philadelphia, PA focusing on Medicare reimbursement, fraud and abuse avoidance and compliance, Medicare and Medicaid, managed care contracting, HIPAA privacy, EHR licenses, and general health care business contracts. In 2017, Alex started working for the City of Philadelphia’s Law Department in the Real Estate Tax Division enforcing the collection of Philadelphia taxes, water debt, and other receivables. She transitioned into the Labor & Employment Unit in 2019 representing the City and its departments in federal and state courts in discrimination lawsuits under Title VII and other pertinent federal and state statutes and local ordinances, such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act, and the Fair Practices Ordinance. She then began working for a major insurance company in the In-House Counsel’s Employment Law unit representing the interests of insureds in Pennsylvania Federal and State courts and administrative agencies. From there, Alex worked for the General Litigation team focusing on personal injury and property defense; automobile accidents; construction accidents; premises liability; premises security liability; products liability; and property damage. Professional Activities · Pennsylvania Certified Paralegal (Pa.C.P.) · Member, Keystone Alliance of Paralegal Associations · Member, Lambda Epison Chi · Member, Philadelphia Association of Paralegals News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education · Bachelor of Arts, Temple University · Post-Bachelor’s Certificate in Paralegal Studies, Peirce College Bar Admissions

News First Department Denies Lifeline to Lifelock Inc.’s Attempt to Obtain Coverage for Deceptive Advertising Claims January 18, 2017 < Back Share to: On January 18, 2017, the First Department emphasized an important lesson in evaluating coverage: policy exclusions may apply based on the facts of the underlying claim, not on the specific causes of action pled. In Lifelock Inc. v. Certain Underwriters at Lloyd's, Lifelock Inc. provided anti-identity theft services, and was sued in a series of cases filed in 2008 stemming from allegedly false, misleading, or deceptive advertisements published as early as 2005. Consumer class actions followed on the heels of an FCC enforcement action, and were ultimately consolidated into one action. Upon receipt of notice of claims, Certain Underwriters at Lloyd’s of London denied coverage citing two exclusions barring coverage for (1) claims that commenced prior to the 2008 retroactive date of the policy, and (2) claims arising from unfair trade practices. Lifelock did not file a declaratory judgment action challenging the denial of coverage until 2013, when a structured settlement was reached in the consolidated class actions. Lloyd’s moved to dismiss the action based on the exclusions. In granting the motion, the court applied a “but for” test to the exclusions, and held they applied. The court found that though each consumer may have signed up for Lifelock’s services at varying points between 2005 and 2008, they did so because of deceptive advertisements that were published prior to 2008. Further, the allegation of deceptive advertisement underpinned each and every cause of action. Accordingly, Lloyd’s argued, and the Court ultimately held that the underlying facts, and therefore the claims, fell squarely within both exclusions. Often, a plaintiff may plead numerous causes of action that, individually, have different elements and require different standards of proof. From a coverage perspective in New York, though, the gravamen of the alleged injury is of critical importance. Thanks to Chris Soverow for his contribution to this post.   Previous Next Contact

News Furnishing The Occasion Is Not the Same As Causation In Premises Liability Case (NY) December 16, 2022 < Back Share to: Furnishing the occasion for a trip and fall, may not lead to a party being found as the cause of the accident. Generally, if a premise is open to the public, the owner has a nondelegable duty to provide the public with a reasonably safe premise and safe means of ingress and egress. However, that duty ends at the property line, absent extenuating circumstances. In Ellen Buehler v. Town of Pawling, 2022 NY Slip Opp 07047 (2nd Dep’t, Dec. 14, 2022), Ms. Buehler suffered an injury when she tripped and fell a few steps outside a building owned by defendant Town of Pawling. Specifically, Ms. Buehler exited the building through the front entrance, and entered the abutting Route 292, a state owned highway. After making a right turn, and taking a few steps down the road, she tripped and fell within the roadway and sustained injuries. Ms. Buehler alleges that the area was not properly illuminated, which caused her to fall. Defendant Town of Pawling moved for summary judgment on the issue of liability, and the motion was granted. The court stated that “generally liability for a dangerous condition on real property must be predicated upon ownership, occupancy or special use of the property.” An owner “owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it.” Ultimately, the court ruled that defendant Town of Pawling provided a safe means of egress via the front entrance of the building, and “the fact that the plaintiff had the option of walking directly into a paved street from the end of its front entrance ramp, at most, furnished the occasion for the accident, but was not one of its causes.” As such, even though the means of egress provided may lead directly to a dangerous and defective condition, this case establishes that under the circumstances therein, leading a patron to a dangerous condition does not make one liable for the subsequent injuries sustained, absent ownership, or contribution to the condition itself. Thanks to Chris Palmieri for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News WCM is Pleased to Announce that Matt Care has been Promoted to Partner June 30, 2021 < Back Share to: Effective, July 1, 2021, Matt Care is officially the newest partner in WCM's Philadelphia office. Matt started working at WCM in 2015. He primarily defends individuals and businesses in a wide variety of general liability, construction defect, premises liability, insurance coverage disputes, bad faith claims, professional liability claims, and product liability lawsuits, from inception up to and including trial. Matt regularly achieves excellent, cost-effective results for his clients and further has significant experience dealing with large loss, high exposure, and complex civil matters. Matt is a graduate of Princeton University and Temple University Beasley School of Law and is regularly involved with the local LGBT professional law organizations. Previous Next Contact