News U.S. Supreme Court: N.Y.'s Method Of Judicial Elections May Be Broke, But We Can't Fix It January 17, 2008 < Back Share to: The United States Supreme Court unanimously overturned the 2006 decision by the Court of Appeals - Second Circuit that found New York's party convention system for choosing judicial nominees unconstitutional. While a victory for New York's Board of Elections, four of the nine justices of the Supreme Court criticized the convention system. In particular, Justice Stevens, quoting Justice Thurgood Marshall, wrote, "The Constitution does not prohibit legislatures from enacting stupid laws." http://www.nytimes.com/2008/01/17/nyregion/17scotus.html?_r=1&scp=1&sq=supreme+Court+political&oref=slogin Previous Next Contact

News Plaintiff Fails to File Proper Notice under Torts Claims Act is Fatal December 2, 2016 < Back Share to: At Wade Clark Mulcahy, we often defend cases against public entities. The New Jersey Torts Claims Act requires a claimant to file a notice of claim against a public entity within ninety (90) days of the incident. The case of Pressley v. Borough of Pine Hill affirms how important it is for defense counsel to request and analyze a copy of any notice of claim filed by a plaintiff to determine whether it meets the requirements of the Torts Claims Act. In December, 2013, a Borough of Pine Hill vehicle hit Exia Monroe’s car. At the time, her boyfriend, Gregory Pressley was driving the car. The day after the accident, Monroe contacted the borough, and filled out a notice of claim, listing herself as the claimant. In the body of the notice, she referenced her boyfriend, but was not listed as a claimant. Five days after the ninety (90) day deadline, plaintiff sent a second notice solely his behalf, which was rejected by the Borough. In February, 2015, over one year after the accident, plaintiff filed a motion seeking to file a late notice of Tort Claim. In his motion, plaintiff argued that the Borough had actual notice of the accident, and that the Notice of Claim filed five days late demonstrated substantial compliance with the statute. The Judge denied the motion. On appeal, the plaintiff again argued that his he substantially complied with the statute by filing his notice five days late. He also argued, for the first time ever, that the first notice of claim filed by girlfriend was also filed on his behalf. The Appellate Court upheld the trial court’s decision, finding that 1) the plaintiff’s failure to file a motion for leave to a late notice of claim within one year was fatal to his claim, and 2) plaintiff waived the argument that the first notice of claim filed by Monroe was filed on his behalf, since he failed to raise that point in his original motion papers. Thanks to Healther Aquino for her contribution to this post.             Previous Next Contact

News Mike Bono to Present at IFASIC Conference in Budapest October 10, 2024 < Back Share to: Every year, IFASIC (the International Fine Art and Specie Conference) is attended by insurers, risk managers, attorneys and other professionals in the fine art and specie insurance industry, to discuss various issues relating to those markets. This year's conference takes place October 16-18, in Budapest, Hungary, and our own Mike Bono will be one of the panel speakers. https://ifasic.com/conference/ifasic-budapest-2024/#Mike-Bono Mike's presentation is entitled: Jewelers' Block Claims: Old Losses and New Tricks , and will incorporate Mike's ample experience handling jewelers' block and fine art and specie claims, both in New York and through the United States. For more information on our JB and Fine Art and Specie practices, please email Mike at mbono@wcmlaw.com Previous Next Michael A. Bono Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Contact

News Can't Use Facebook To Serve Process June 13, 2012 < Back Share to: Last week we posted that NY state courts are permitting discovery of Facebook accounts in certain contexts. This week, a federal court judge in the Southern District of New York rejected a request to use Facebook as an alternative means of serving process on a hard to find third-party defendant. In Fortunato v. Chase Bank, Chase wanted to use Facebook to locate and serve the third-party defendant who had a history of providing inaccurate addresses. Chase argued that this history prevented its investigators from locating the sought after third-party defendant through normal channels. Although the judge agreed that service by normal means was impractical, he would not allow Chase to use Facebook to locate and serve the third-party defendant stating that Chase had not set forth any facts that would give the court some degree of certainty that the Facebook profile their investigator found was in fact maintained by the third-party defendant. The court, instead, allowed service by publication in four local newspapers to cover areas where the third-party defendant had listed addresses. If you have any questions or comments about this post, please email Nicole at nbrown@wcmlaw.com . Fortunato v. Chase Bank USA Previous Next Contact

News Social Media Networks: Access Denied February 1, 2013 < Back Share to: In the current age of electronic discovery, social media networks provide an insight into a plaintiff’s state of mind and daily activities, which was once otherwise impossible to obtain. In a blow to the defense, the First Department recently held that a plaintiff's mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account's usage. In Tapp v. New York State Urban Dev. Corp., the defendant sought an authorization for plaintiff's Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived. In affirming the lower court’s denial of defendant’s request, the First Department held that to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account. Specifically, they need to identify information that "contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims." Given an individual’s ability to close their Facebook page to the public, and place various restrictions on who may access the content contained on their profile page, the First Department’s ruling makes it increasingly difficult to obtain access to social media networks, which may be a useful tool in challenging a plaintiff’s credibility at the time of trial. http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00547.htm Previous Next Contact

News Tenant's Tying Up a Vicious Dog Could Place Liability on Landlord November 12, 2010 < Back Share to: In Jones v Pennsylvania Meat Mkt, the plaintiff was bitten on the leg by a pit bull dog near the rear entrance of a grocery store. At the time of the incident, the dog was tied to a store's dumpster. The store was located in a strip mall and the landlord retained security guards to patrol the property. The plaintiff testified he frequently saw the dog, which allegedly was owned by a store employee, tied to the dumpster. He also testified that the dog had a tendency to bark, growl, and strain against its leash to lunge at people who were passing by. In denying the landlord's motion for summary judgment, the court stated the the evidence raised triable issues of fact as to whether the landlord was aware that the dog was being harbored on its premises, whether the dog had vicious propensities, whether the landlord controlled the area where the incident occurred. http://www.nycourts.gov/reporter/3dseries/2010/2010_07897.htm Previous Next Contact

News Appellate Division, First Department, Grants City Additional Insured Coverage in Vicarious Liability Case (NY) August 5, 2021 < Back Share to: In City of New York v. Travelers Prop. Cas. Co. of Am., No. 14146, 2021 WL 2690464 (N.Y. App. Div. July 1, 2021), the City of New York (the City), plaintiff, contracted with the Central Park Conservancy (CPC) to maintain Central Park. Pursuant to this commitment, the CPC entered into a subcontract with Bartlett Tree Expert Company (Bartlett) to maintain the park’s trees. As a requirement of this subcontract, Bartlett obtained a CGL policy from defendant, Travelers Property Casualty Company of America (Travelers), naming the City and the CPC as additional insureds. The policy provided coverage to both entities arising out of Bartlett’s operations, except that “person or organization does not qualify as an additional insured with respect to independent acts or omissions of such person or organization.” After the Claimant was injured by a falling tree branch in Central Park, she sued the City and CPC alleging that her injury arose out of negligent acts or omissions of the City, the CPC, and/or its contractors and subcontractors. When the City sought additional insured coverage under Bartlett’s policy, Travelers afforded insurance coverage for injuries caused by Bartlett, but not “with respect to the acts or omissions of the additional insured.” The City brought this suit in response to Travelers disclaiming coverage. The Appellate Division, First Department, ruled in favor of the City. The court held that the Claimant’s allegations, paired with the evidence found in the tree-service contract and business records memorializing Bartlett’s work on the trees triggered Travelers’ duty to defend. The court noted that the evidence “demonstrate[s] that there is a reasonable possibility that the City will recover under the policy's additional insured provision, which affords coverage premised on the City's vicarious liability for the acts or omissions of the named insured, Bartlett; therefore defendant [Travelers] is required to defend the City in the action.” The court also found that the possibility that the City may subsequently be found liable solely for its own negligent acts or omissions did not negate Traveler’s duty to defend the City. Accordingly, this case offers guidance how New York courts will rule regarding an insurer’s defense obligations to an additional insured when independent negligence and vicarious liability claims are both being asserted against the additional insured. Thank you to Christopher McCarthy for his contribution. Please email Colleen Hayes with any questions. Previous Next Contact

News Appellants’ Failure to Object at Trial Costs Them Appeal (PA) November 16, 2018 < Back Share to: The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the amount of damages awarded by the jury’s verdict. In Showers v. Sam’s East, Inc., PA Superior Court No. 810 EDA 2018, appellants, who were plaintiffs in the underlying case, filed an appeal challenging the amount of damages awarded by the jury. In the underlying case, Plaintiff Donyale Showers sued Sam’s East, Inc. after she slipped and fell on a wet floor at the Sam’s Club in Exton, PA. Showers complained of right leg and knee pain, however she continued to shop. A few days after the fall at Sam’s Club, Showers was walking with her husband when her right leg gave out causing her to fall and hit her right knee. She underwent arthroscopic surgery for a torn meniscus. At trial, her treating doctor testified that her torn meniscus was caused by both falls – the one at Sam’s Club and the subsequent fall following her walk. Sam’s Club countered by putting forth defense expert testimony opining that Showers’ injuries were not causally related to her fall at Sam’s Club. The jury found that both Sam’s Club and Showers were 50% negligent and awarded Showers $7,481.40 in damages; which equaled the total amount of medical costs claimed by Showers. Showers appealed and argued that the court erred and abused its discretion by failing to submit to the jury a verdict slip that included separate damages categories for medical expenses, loss of consortium, and pain and suffering. Showers argued that, at a charging conference prior to deliberation, they submitted a proposed verdict slip that delineated damages for both medical expenses and pain and suffering. The court denied their request, and therefore Showers alleged that there was no way to determine whether the jury’s damage award is solely for medical expenses or also included an award for pain and suffering. Upon review, the PA Superior court noted that Showers did not produce any record of the charging conference and therefore no evidence of any objection made regarding the final verdict sheet during the conference. Additionally, Showers did not object to the final verdict sheet form during trial proceedings and also consented to the trial court’s jury instructions when they were given. Thus, the first instance of Showers’ objection to the verdict sheet appeared in their post-trial motion. Because there is no record of Showers objecting to the final verdict sheet either at the charging conference or during the trial proceedings, the PA Superior Court concluded that Showers had waived such objection. It is often said that trial objections are like flags -- they are either raised or "waived." Here, by failing to preserve her objection to the final verdict sheet, the plaintiff waived that objection, and the modest verdict stands. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Borrowed Employee Doctrine Prevents Negligence Plaintiff's Recovery (PA) November 12, 2019 < Back Share to: On November 7, 2019, the Superior Court of Pennsylvania affirmed an order granting summary judgment in favor of defendant Streamlight, Inc on the grounds that the plaintiff's action was barred by Section 303(a) of the Workers’ Compensation Act, 77 P.S. 481(a). The case of Burrell v. Streamlight arises out of a work-place accident in which plaintiff fell while disposing of trash during the course of his employment . Burrell had been a temporary worker hired by Aerotek, Inc., a recruiting agency, and was assigned to work for Streamlight in a temporary capacity. Burrell filed a complaint in Montgomery County against Streamlight alleging his injuries were caused by a dangerous condition in Streamlight’s facility. In its answer, Streamlight pled that it was immune from suit under the Workers’ Compensation Act. Following the close of discovery, Streamlight filed a motion for summary judgment on two grounds: (1) it was immune from tort liability under the Workers Compensation Act; and (2) that Burrell could not prove negligence. The trial court granted Streamlight’s motion for summary judgment on the ground that Burrell was Streamlight’s employee under the borrowed employee doctrine. Following this decision, Burrell appealed. On appeal, the Superior Court reviewed a contract between Aerotek and Streamlight which stated Burrell was paid by Aerotek and that all personnel supplied by Aerotek were employees of Aerotek, not Streamlight. Aerotek was also responsible for withholding taxes from Burrell and providing workers’ compensation insurance. However, the contract also stated that all work would be performed on Streamlight’s premises under the supervision of Streamlight employees. Streamlight also had the authority to fire Burrell. At his deposition, Burrell testified that Streamlight set all of his hours, job duties and interviewed him prior to his employment. Burrell also testified that all of his day-to-day activities were controlled by Streamlight and he had no significant interactions with Aerotek employees while working for Streamlight. Under the borrowed employee doctrine, where a worker employed by one company is furnished to another to perform work, the latter company is his employer under the Workers’ Compensation Act if it has the right to control his work and the manner in which it is performed. Here, the Court ruled that there was no conflict or ambiguity in the evidence that Burrell was an employee of Streamlight for Workers Compensation Act purposes. Streamlight directed and controlled Burrell’s work and the manner in which it was performed which is all that is required under the borrowed employee doctrine. Thus, the PA Superior Court affirmed the entry of summary judgment. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Convict Not Entitled to MBA Degree September 24, 2010 < Back Share to: At times, the law seems disconnected from common sense or the real world. While it is debatable whether "business ethics" is an oxymoron in the rough and tumble atmosphere of Wall Street, there are some fixed moral guide posts for ethical business conduct. Does some conduct disqualify a student from receiving a business degree? Should a university confer a master of business degree to someone guilty of criminal conduct? How much chutzpah does it take to argue that a university could not use a guilty plea to criminal charges to deny a student his MBA degree? In Rosenthal v. NYU, an accountant conspired with his brother to trade securities based on non public information, a violation of the U.S. securities laws. It seems that this scheme was hatched while plaintiff was a graduate student at the Stern School of Business at NYU, pursuing a Master of Business degree. Ironically, plaintiff taught an ethics course as a teaching assistant, presumably guiding other young minds in discerning the fine line between ethical and unethical conduct. After his graduate course work was completed, plaintiff entered a guilty plea to conspiracy to commit securities fraud. NYU learned of the plea, undertook an investigation and eventually denied plaintiff his degree based on his admittedly criminal conduct. Plaintiff protested and filed a federal court action. In a detailed opinion, the court upheld the denial of plaintiff's degree and sided with the university. Perhaps the plaintiff should have paid closer attention to the material he taught in his professional responsibility course? If you have an questions or comments about this post, please email Paul at pclark@wcmlaw.com http://pdf.wcmlaw.com/pdf/Rosenthal.pdf Previous Next Contact

News Legal Malpractice Claims Barred Business Enterprise/Pursuits Exclusions January 17, 2013 < Back Share to: Professional liability policies are designed to cover errors and omissions committed by professional while providing or failing to provide services on behalf of their firms. Sounds simple enough. Problems arise when attorneys -or other professionals – act in different capacities, sometimes providing legal advice while at others offering business judgments or acting as “deal makers” for fledgling businesses. In Abrams, Fensterman, et al. v. Underwriters At Lloyd’s, London, a partner and his law firm found themselves in a real pickle over some business transactions that went bad. The underlying complaint alleged that the partner committed legal malpractice and engaged in fraudulent conduct when he induced the underlying plaintiffs to invest in a business formed to underwrite and sell insurance products. According to the disgruntled investors, when their seed money went missing, the law firm defendants falsely claimed that it was stolen by members of a royal family in the United Arab Emirates. Given the allegations of legal malpractice, the law firm defendants sought a defense and indemnification from their malpractice insurer. After some initial fact gathering, the insurer denied coverage citing two key policy exclusions commonly called the “business pursuits” and “business enterprise” exclusions. Closely aligned, these exclusions bar coverage for any claims arising out of or in connection with (1) a business “controlled, operated or managed by any insured” or (2) an insured’s activities as “a trustee, partner, officer, director or employee of a business " other than his law firm. Given the attorneys' alleged involvement in the formation, capitalization and management of the business venture, the court upheld the insurer's denial of coverage. Abrams, Fensterman reinforces that most professional liability policies seek to avoid assuming additional risk where an attorney “so intermingles his business relationships with his law practice” that the line between the two is blurred. When timely invoked, the courts will uphold those exclusions. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Disclaimer: This post is not intended to express any opinion on the merits of the allegations in the underlying lawsuit, which may or may not have any merit.   Previous Next Contact

News Workers Compensation Exclusion Unambiguous (NJ) September 6, 2018 < Back Share to: In DaSilva v. JDDM Enterprises LLC et. al., the Appellate Division for the Superior Court of New Jersey recently considered the interplay between worker’s compensation statutes and the common Workers’ Compensation Exclusion often present in contractor’s insurance policies. The coverage action arose out of Utica Insurance Company’s disclaimer of coverage to JDDM, a general contractor insured by a Utica Contractor’s Special insurance policy. Plaintiff DaSilva, an employee of a JDDM subcontractor, sued JDDM for injuries he incurred on the construction site. His employer, the subcontractor, failed to obtain Worker’s Compensation insurance coverage, as it was required to do pursuant to the N.J. statute. JDDM tendered to Utica, and Utica disclaimed all coverage pursuant to the policy’s Workers’ Compensation Exclusion, which excluded coverage for all bodily injury if “benefits are provided or required to be provided by the insured under a workers’ compensation law." JDDM argued that the exclusion was ambiguous, and should be construed in favor of coverage given the unequal bargaining power between JDDM and Utica. The Court disagreed, holding the Workers’ Compensation Exclusion was unambiguous and Utica’s disclaimer was proper. The Court found N.J. Statute 34:15-79(a) dispositive. This statute required any contractor who places work with a subcontractor, to obtain workers’ compensation coverage “in the event of the subcontractor’s failing to carry workers’ compensation insurance as required by this article.” Thus, the New Jersey regulation explicitly makes contractors liable for the workers’ compensation coverage that would otherwise be carried by their subcontractors, thus providing a powerful incentive for contractors to hire insured subs. Given this rule, the Court found that JDDM, as Utica’s insured, was plainly required by law to provide workers’ compensation, and thus the plain language of the Exclusion barred coverage. The DaSilva case is a reminder to contractors in New Jersey to be mindful of workers’ compensation coverage to all subcontractors hired, given the ubiquity of the Workers’ Compensation Exclusion in insurance policies. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact