News Plaintiff’s Pothole Predicament Prevails on Appeal (NY) August 15, 2019 < Back Share to: In Karpel v National Grid Generation LLC, plaintiff alleged a trip and fall over a raised edge in the roadway. At the time of the fall, excavation work was being done in the vicinity. After discovery, the defendants moved for summary judgment arguing that the alleged defective condition was trivial and therefore not actionable, or was open and obvious and not inherently dangerous. The Supreme Court granted the defendants’ motion, and the plaintiff appealed. The Appellate Division Second Department overturned the lower court’s decision. The Appellate Division held that defendants did not meet their prima facie burden. A defendant seeking dismissal of a negligence complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it posed. The hole measured approximately four-feet wide, eight-feet long, and at least one-inch deep. Although there were orange markings around its perimeter, the Court found the argument unconvincing. “Proof that a dangerous condition is open and obvious does not preclude a finding of liability ... but is relevant to the issue of the plaintiff's comparative negligence.” The Court held the hole was inherently dangerous, even if open and obvious, and therefore, not sufficient to be granted summary judgment. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News When Being Special is not so Special (NY) August 21, 2019 < Back Share to: An injured plaintiff cannot bring a lawsuit in New York against his/her employer, since that person's remedy should be through workers' compensation, not through a Supreme Court lawsuit. Simple enough, right? But sometimes, whether a person is an "employee" is a nuanced questions. Plaintiff, Faunaude Matthews, was injured at the Metropolitan Museum of Art (MET) when he fell from the top of a file cabinet in an attempt to retrieve documents he needed for the job he was performing for Bright Star Messenger Center, LLC. Matthews was employed by Bright Star and was assigned to work for Metropolitan Data Corp. Metropolitan Data was contracted by the MET to do the job that Matthews was performing that resulted in his injuries. Matthews filed suit for personal injuries he allegedly sustained from the fall and named Bright Star, Metropolitan Data and the MET as defendants. Metropolitan Data alleged it was Matthew’s “Special Employer” so Workers’ Compensation Law (WCL) barred his claims against it. The court referenced Matthews own testimony that established he was Metropolitan Data’s “Special Employee” as a temporary employee hired by his general employer, Bright Star, and his work was supervised and controlled by Metropolitan Data. The Court further noted, Matthews received Workers’ Compensation benefits from Bright Star, therefore, suit was barred against Bright Star and Metropolitan Data, who established entitlement to summary judgment based on the WCL defense. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Plaintiff's Comparative Negligence Does Not Trigger an Employer's Contractual Indemnification Obligation (NY) September 7, 2012 < Back Share to: In a bid to trigger an employer’s contractual indemnity provision, some defendants are arguing that the plaintiff’s comparative negligence constitutes the employer’s negligence. While creative, this argument, as discussed by the Second Department in Arrendal v. Trizechahan, is flawed and does not comport with the intent of indemnity provisions. In Arrendal, the plaintiff, a Daisy Subway employee, was injured while placing garbage into a trash compactor. He commenced suit against Trizechahan, the owner of the building, who in turn filed a third party claim against Subway Real Estate Group for contractual indemnification. Subway Real Estate Group then sued Daisy Subway, the plaintiff’s employer. The indemnity provision in the lease provided that Subway Real Estate Group would indemnify Trizechahn from losses caused by an agent or licensee of Subway Real Estate, which plaintiff was. It also provided that Subway Real Estate would indemnify Trizechahn from losses caused by employees of Daisy Subway, which plaintiff was. Trizechahn argued that plaintiff’s comparative negligence constituted negligence and, thus, triggered Subway’s indemnity obligations. The Supreme Court bought this argument, but the Second Department did not. It held that the term "negligence," as employed by the lease does not encompass the comparative negligence of the injured plaintiff. Rather, the indemnification provision would only be triggered in the event of a finding of negligence by the indemnitor’s agent or employee for a tort committed against the plaintiff. Thanks to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Supplemental Bill of Particulars Permitted Nine Years Later (NY) June 29, 2017 < Back Share to: Last minute supplemental bills of particulars are common in personal injury cases and often result in motion practice seeking to strike the new and additional injuries alleged or permit discovery related to them. Pursuant to the CPLR §3043(b), a party may supplement the bill of particulars up to 30 days prior to trial only as to “continuing special damages and disabilities,” they may not allege new and additional injuries. The crux of this issue is whether the new injuries are related to the original injuries as to survive the statutory standard. In Khosrova v. Hampton Bays, 2017 Slip Op 05075 (2d Dept. 2017), plaintiff was assaulted by a fellow student while waiting for the bus outside of the school. Plaintiff initially alleged personal injuries including depression, insomnia, agitation, poor concentration, loneliness and tenseness with distress, stress, and psychological difficulties. Nine years later plaintiff served a supplemental bill of particulars alleging additional injuries and damages of post-traumatic stress disorder and long-term psychotherapy. Defendant’s made a motion to strike the supplemental bill of particulars claiming that it alleges new injuries and as such is actually an amended bill of particulars done without leave of court. The lower court granted the defendant’s motion. On appeal the Appellate Division overturned the lower court’s decision. The Court found that the supplemental bill of particulars alleged damages that were “continuing consequences of injuries suffered and described in the original bill of particulars rather than new, unrelated injuries.” This decision contributes to the uphill battle defendants face when presented with a supplemental bill of particulars with related, yet new, allegations on the eve of trial. This decision represents another example of a frustrating pro-plaintiff trend in New York Courts, and should be heeded by attorneys and insurers alike. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NY- Third Circuit Untangles Coverage Web of Direct Versus Vicarious Liability October 12, 2018 < Back Share to: Upstream litigants and their insurers often to push liability to the downstream contractors or insureds, but the policy terms of an upstream insurer, even an excess insurer, can frustrate expectations. In United Financial Casualty Company v Princeton Excess and Surplus Lines Insurance., Princeton appealed the ruling by the Eastern District of New York that held it had a primary duty to provide coverage in a bodily injury claim for the direct liability of their named insured, Prestige Delivery Services, and Staples, Inc. Prestige was hired to deliver goods by Staples. Joseph Nice, who worked for Prestige, had to stop the delivery van for repairs. In the process of repairs, the repairman, Plaintiff Ken Dunbar, was trapped and dragged under the vehicle, sustaining severe personal injuries. Dunbar sued Nice for negligence, and asserted claims of vicarious liability (respondeat superior) and negligent hiring, supervision, and retention against Prestige and Staples. United, which insured Nice, assumed the defense of all parties, settled all claims, and then sued Princeton for (1) contribution on the vicariously liability claims, and (2) a declaratory judgment establishing Princeton had primary coverage duties with respect to the direct liability claims against Prestige and Staples. The Eastern District of Pennsylvania ruled for United on both accounts, and Princeton appealed only from the latter. The Third Circuit, however, rejected Princeton’s appeal on two grounds. First, the Court held the United policy only insured Nice for claims arising directly from his conduct, and the direct liability at issue pertained to negligent hiring and supervision. As the Court observed, Nice cannot supervise himself. Second, although an excess form policy, the Princeton policy’s terms provided for primary level coverage for liability assumed in an “insured contract.” Because Prestige agreed to hold harmless and indemnify Staples for any negligence attributable to Prestige, the Third Circuit affirmed the district court’s ruling. Such cases are cautionary tales regarding resting on standard assumptions. Often in such delivery or construction claims, liability flows down to the tortfeasor, who is contractually bound to indemnify those above and whose insurance is obligated to answer on a primary basis. Excess policies rarely are obligated to assume primary level responsibilities, but most such policies have conditions and terms that would trigger primary coverage. The details of the policy will trump standard business expectations every time, and the minutiae of the policy should be scrutinized at the outset of every claim as a result. Thanks to Christopher Soverow for his contribution to this post.   Previous Next Contact

News Of New York Choice-of-Law and Forum Selection Clauses: New York Appellate Division Holds That Sophisticated Parties Should Read State Laws (NY) December 23, 2021 < Back Share to: In North Am. Elite Ins. Co. v. Space Needle, Inc., Case No. 2021-01400, 2021 WL 5702283 (N.Y. App. Div. 1st Dep’t Dec. 2, 2021), a five-judge panel unanimously affirmed an Order of the Supreme Court, New York County, denying North American Elite Insurance Company’s (“Elite”) preliminary injunction against litigating its insurance coverage action in a forum outside of New York––even though both parties agreed to the exclusive jurisdiction of the New York State courts. In a broad sense, the issue presented was whether choice-of-law and forum selection clauses in insurance contracts can survive state statutes that explicitly prohibit such clauses. Specifically at issue in Space Needle was whether Elite was required to comply with the Washington Insurance Code’s express provision indicating that no insurance contract delivered or issued for delivery in the State of Washington can include a condition, stipulation or agreement that requires the insurance contract to be construed by the laws of any other state or country. The five-judge appellate panel considered a recent, similar case involving a New York choice-of-law and forum provision in a Washington State insurance policy, Berkley Assur. Co. v. MacDonald-Miller Facility Solutions, Inc., No. 19-CV-7627 (JPO), 2019 WL 6841419 (S.D.N.Y. Dec. 16, 2019). In Berkley, the Southern District of New York held that, under a New York choice-of-law analysis––an analysis which must be implemented at the outset––the law chosen by the contracting parties is valid, and therefore, the Berkley court stated that the forum selection clause is not presumed void. However, the court in Space Needle observed one difference between the clause at issue in MacDonald-Miller and the clause at issue in Space Needle: The former clause is permissive while the latter is mandatory. All five judges agreed that a close reading of the Washington statute indicates that it prohibits mandatory choice-of-law and/or venue clauses; and, additionally, that a sophisticated party like Elite should have known the choice-of-law and forum selection clause in the insurance contract would be void per Washington State law. Hence, the decision signals that insurers should rethink and perhaps reword New York choice-of-law and forum selection clauses in states with prohibitive choice-of-law and/or venue statutes. Wade Clark Mulcahy LLP will continue to monitor this significant development. Thanks to Richard Dunne for his contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Dog Doesn't Get One Free Bite If Propensity To Do So Is Evident Prior To Attack (NY) March 10, 2023 < Back Share to: In Zicari v. Buckley, 2023 NY Slip Op 00788 (4th Dept. 2023), plaintiff alleged serious injuries due to a dog attack when he visited the defendant’s home to obtain signatures on a local political petition, and immediately upon the door opening, was attacked by defendant’s dog. Defendant said the dog had never attacked anyone before that day. At pretrial phase, Defendant moved for summary judgment to strike the dog bite claim, arguing they had no prior knowledge of any dangerous or violent propensity from the dog. Defendant further argued that “the dog was protective” and would protect the house when a “stranger” entered it. The trial court granted summary judgment on this issue. The plaintiff appealed and the Fourth Department overturned the trial court’s decision, holding that defendant failed to meet his initial burden on that part of the motion seeking to dismiss the “propensity” argument because defendant/owner failed to establish that he neither knew nor should have known that the dog had any vicious propensities (see Young v. Grizanti, 164 A.D.3d 1661, 1662 [4th Dept 2018]; cf. Brady v. Contangelo, 148 A.D.3d 1544, 1546 [4th Dept 2017]). The appellate division noted that "an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities" (Collier v. Zambito, 1 NY3d 444, 447 [2004]). The evidence showed prior veterinary records indicating the dog had known territorial issues and that the dog barked at people it did not like. The owner was recommended to engage the dog in socialization exercises to help with these issues. The court felt these factors could be used to show the owner should have known of the dog’s propensity for violence. The Fourth Department’s reasoning shows that any past evidence of aggression by animals, even if that evidence does not show any physical manifestation of violence or prior attack, can be used to prove a propensity for violence thus leaving it for a jury to decide. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, feel free to contact Tom Bracken. Previous Next Contact

News Court of Appeals to Reconsider Controversial K2 Coverage Case (NY) September 12, 2013 < Back Share to: The ground shifted under well established New York insurance law on June 11, 2013 when the New York Court of Appeals released its decision in K2 Investment Group, LLC v. American Guarantee Liability Co. We analyzed the significance of K2 in our post of June 28, 2008. The backlash was swift and sustained: Did K2 really mean what it said, namely, that automatic indemnity was imposed on an insurer who breached its duty to defend? What coverage defenses were still available after such breach? The Court of Appeals may have taken notice of the stir it caused. On September 3, 2013, it granted a motion to reargue the K2 decision at the request of the defendant insurer, American Guarantee, joined by the Complex Insurance Claims Litigation Association and the American Insurance Association who submitted their own motion as friends of the court. The amici politely suggested, "The Court's Decision creates an unexplained conflict with longstanding New York law reflected in Servidone Construction Corp v. Security Insurance Co., misapprehends Lang v. Hanover Insurance Co., and will substantially impact insurers and policyholders throughout the State." No briefing schedule has been established but some clarification of K2 seems likely from New York's highest court. Stay tuned! If you have any questions about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Nursing Homes Win "Cognitive Awareness" Standard for Pain and Suffering Damages (NY) June 18, 2021 < Back Share to: What must a jury determine to award pain and suffering damages when a nursing home does not provide the proper standard of care? In a recent New York Appellate Division decision by the First Department, a new trial was ordered for a claim seeking pain and suffering damages in which the Northern Manhattan Nursing Home Inc was accused of failing to properly monitor a patient’s blood sugar levels and failing to send the patient to the hospital in time after discovering he was unresponsive. The plaintiff (the patient’s widow) alleged that the nursing home’s negligence caused her husband to suffer brain damage, which ultimately led to his death. In 2019, a jury initially awarded the plaintiff $2.5 million dollars in damages for pain and suffering and $2 million in interest. However, the nursing home appealed arguing that the award for pain and suffering was in error. On appeal, the court found that the trial judge failed to have the jury determine whether the patient experienced some level of cognitive awareness after his injury, when determining the award. The court stated that:“ While a jury could reasonably have concluded based on the weight of the credible evidence that the decedent had the requisite cognitive awareness, this is not the only reasonable conclusion that the jury could have drawn. By omitting any discussion of 'consciousness' from its jury charge or the verdict sheet, the court essentially, and improperly, took this issue away from the jury." Because plaintiff filed her claim under New York Public Health Law 2801-d which allows private actions against residential health care facilities but does not allow a separate action for damages, the damages award must be based on some compensable and measurable injury. However, the court did note that verdict on liability against the nursing home was properly granted because plaintiff sufficiently established that the decedent was left unmonitored for hours after being unresponsive in the morning and was not transported to the hospital until later at night. Such actions departed from the nursing home’s standard of care and its own protocols. Nevertheless, the court vacated the $2.5 million award for pain and suffering for the jury’s failure to determine whether the patient suffered cognitive awareness so as to justify the award. The extent of this standard will likely be helpful in the influx of nursing home negligence cases resulting from the COVID-19 pandemic. Thanks to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NJ Gives Expansive Reading Of Child Abuse S/Lims: 14 Year Old Claim Revived September 7, 2008 < Back Share to: New Jersey's Child Sexual Abuse Act (CSAA) requires that any claim for sexual abuse be filed within 2 years after "reasonable discovery" of the injury and its causal connection to the alleged molestation. Such an inquiry is necessarily fact intensive, focusing on not only the victim's recollection of the sexual abuse but the time that he connects any ensuing injury with the abuse. Given the horror of sexual abuse and the legislative response in enacting the CSAA, courts have liberally applied the statute's protections. In R.L. v. Voytac, the Appellate Division was faced with a situtation where the plaintiff filed an action against his former stepfather 14 years after the last act of abuse. The alleged abuser successfully argued before the motion court that the statute began to tick when the plaintiff had flashbacks about his abuse while engaging in sexual acts with his girlfriend 5 years earlier. Afterwards, the plaintiff recounted these memories to his mother who suggested counselling and told him "there was no way this hasn’t affected [you]." Despite this advice, plaintiff did not seek counselling and continued on a downward psychological spiral. In contrast, the plaintiff argued that he did not make the connection between his psychological problems and the abuse until several years later "when a lightbulb" went off while confiding his troubles to a coworker. Relying on the remedial nature of the CSAA and the difficulties inherent in claims of sexuxal abuse, the Appellate Division reinstated plaintiff's claims. The panel emphasized that the victim must have a "conscious awareness" not only of the abuse, but of the abuse's relationship to the injuries and symptoms experienced by the plaintiff. The end result: summary judgment for the defendant reversed and the case reinstated. In balancing the equities of a plaintiff seeking redress for injuries inflicted on him as a minor versus the right of a defendant to have timely access to proof of innocence, the child's interests will frequently trump the alleged abuser's. And that result should be no surprise to any litigant, litigator or insurer where the claim involves the sexual abuse of a minor. http://www.judiciary.state.nj.us/opinions/a1001-06.pdf Previous Next Contact

News Tenant Is All Wet As Res Judicata Won't Bar Subro. Case Despite Prior Settlement January 28, 2008 < Back Share to: In Employers' Fire Insurance Company v. Brookner, 2008 NY Slip Op. 00448, AD Index 2007-02514, Kings Co. Index 13987/06, tenants and owners of a commercial building owned by RAIA Realty Corp allegedly sustained extensive water damage due to a faulty hose of a laser machine owned by Andrew Brookner, the third floor tenant. Employers' Fire Insurance Company, RAIA Realty Corp's insurer, paid the claims of its insureds and the first floor tenant. Meanwhile the second floor tenants, Alexandra and Edward Etkin, commenced a lawsuit against RAIA, RAIA's principal and Brookner for property damage and personal injury stemming from this same incident. RAIA and its principal asserted crossclaims for contribution and indemnification against Brookner. Ultimately, without contribution from RAIA or its principal, Brookner paid the settlement reached, a stipulation of discontinuance was executed and the case was discontinued with prejudice. Thereafter, Employers' Fire Insurance Company commenced a subrogation action against Brookner to recoup the monies paid to its insureds as a result of the water damage caused by Brookner's negligence. Brookner moved to dismiss, asserting that this subrogation action was barred by res judicata based upon the stipulation of discontinuance in the Etkin case, which arose from the same occurrence. The trial court denied this motion. In affirming the lower court's decision, the Appellate Division - Second Department, stated that subrogee insurer stands in the shoes of its insureds and that the doctrine of res judicata only bars additional actions between the same parties, on the same claims, based upon the same harm. RAIA and its principal's crossclaims in the Etkin case were based upon Etkins' harm whereas the subrogation action was based upon the harm suffered by RAIA and its principal. Moreover, the stipulation of discontinuance in the Etkin case was silent as to the crossclaims. In the end, the Court determined since RAIA and its principal were not barred by res judicata, the subrogation action could proceed. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_00448.htm Previous Next Contact

News Court Doesn't Like Facebook Discovery Demands (NY) October 19, 2012 < Back Share to: With the increase in popularity of social media websites in recent years, attorneys are increasingly seeking the disclosure of parties’ social media accounts. Acknowledging this trend, the New York State Appellate Division recently held that any such disclosure requests must be narrowly tailored, seeking only social media account information that relates to the subject of the litigation. In Kregg v. Maldonado, the plaintiff commenced an action on behalf of her injured son, Christopher, against Suzuki Motor Corporation of Japan and American Suzuki Motor Corporation. Plaintiff alleged that Christopher was injured while riding a motorcycle manufactured and distributed by the Suzuki defendants. Following initial disclosure, the Suzuki defendants learned that Christopher’s family created several social media accounts, including accounts on Facebook and MySpace. Christopher’s family members posted on these social media accounts on his behalf. The Suzuki defendants moved to compel the disclosure of all social media account records maintained by or on Christopher’s behalf. Plaintiff objected to the disclosure, arguing that the motion was a “fishing expedition.” The trial court granted the Suzuki defendants’ motion to compel. But the Appellate Division, Fourth Department found that the discovery demand for the social media records was made without “a factual predicate with respect to the relevancy of the evidence.” The court held that the proper means for a party “to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social media-based information that relates to the claimed injuries arising from the accident.” Accordingly, the court reversed the trial court’s decision, and denied the Suzuki defendants’ motion to compel, but granted the defendants leave to serve a more narrowly tailored disclosure request. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact