News Do You Need to Remove the Snow? April 22, 2020 < Back Share to: In Dembele v 373-381 Pas Assoc LLC, the Appellate Division, First Department addressed whether the defendants – restaurant and landowner had an obligation to remove snow and ice from the sidewalk abutting the property. The Bronx County Supreme Court granted the defendant and third-party defendants summary judgment motion on the basis that they did not have a duty to remove the snow and ice on the abutting sidewalk. However, the Appellate Division unanimously reversed the Supreme Court. Plaintiff, an employee of the restaurant owned by third party defendant, sustained personal injuries after falling on snow and ice on a ramp leading from the side door of the restaurant to the abutting sidewalk. The restaurant leases the property from defendant – landowner. The ramp at issue is over the public sidewalk alongside the restaurant. The Appellate Division held that even though the lease between the defendants obligated the restaurant to remove snow from the sidewalk, it did not absolve the owners of the property of their nondelegable duty to keep the sidewalk in safe condition. This decision serves as a reminder for building owners to do all they can to keep their sidewalks safe, notwithstanding the language in their lease with a tenant. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News How COVID-19 Is Impacting Your Claims, as of March 20, 2020 March 16, 2020 < Back Share to: As of March 20, 2020, while some Courts where we practice, like New York and Pennsylvania, have issued more specific information about remote conferences and the like, trials and in-person conferences remain on hold. The CDC has recommended against 50-person gatherings through mid-May, and we doubt Court proceedings will return to "normal" before that time. Just yesterday, on March 19, 2020, the NY Chief Administrative Judge issued an updated order, wherein, all NY Courts "strongly discourage" any attorney functions that require any in-person congregation at all, including depositions or appearances. Moreover, the Courts have finally addressed summary judgment motion deadlines, which have been a primary concern of plaintiffs and defendants. Judge Marks suggests that if any party is unable to meet a litigation deadline, including a summary judgment deadline, parties shall use "best efforts" to stipulate to an extension. The implication, we think, is that if an attorney seeks a deadline extension during the shutdown, in good faith, Courts are more likely to consider that request, when deciding whether that motion was timely. As we and our colleagues on the bar, both plaintiffs and defendants, grapple with the challenges presented by the current climate, we think extensions of courtesies should be universal, and will be guided accordingly by J. Marks's words. The remainder of the information below, originally posted on Monday, March 16, 2020, is largely still accurate, and has been updated for publication on March 20, 2020. In the scheme of things, how we practice law and handle claims is far less important than your health and safety. To that end, we wish you all good health and safe (limited) travel, as we all navigate this new landscape. The past several days have been rife with uncertainty for all of us, within and without the United States, and we, like all of you, have been monitoring recommended COVID-19 protocols. As we noted in our emailed post on Friday, WCM remains fully operational, despite what has evolved into mandatory remote working for our attorneys and staff, for the next several weeks. Despite the social distancing directives, life goes, on, and we all have work to do. Going forward, we will continue to monitor Court updates, and will advise you all accordingly. In keeping with the times, WCM had already implemented a remote access system and a cloud-based case management system. (In all candor, while we did not intend to roll this program out to all attorneys at once, in a 24 hour window, we are equipped to continue to practice, remotely.) As unprecedented and frustrating as this situation seems, we are all fortunate that COVID-19 did not surface as recently as five years ago, when remote work and paperless function were far less operational than they are in 2020. Now, specifically, what direction have we received from the Courts about the impact of COVID-19 on our cases? It depends on the Court, and the answers seem to vary hour by hour. We will continue to monitor all the jurisdictions where we practice, but hereby provide an update on what we know, as of March 20, 2020. Just days ago, the CDC recommended that gatherings of 50 or more people be cancelled or postponed for the next eight weeks, which effectively eliminates jury trials and in-person court conferences into mid-May. We have collected the following information from our Courts of practice, as of this morning: In New York, effective March 16, 2020, all jury trials and in person court conferences are suspended until further notice. Courts are still functioning, motions are being submitted and decided without oral argument, and court conferences are being conducted via stipulation, among the attorneys.Pennsylvania Courts have taken different measures, depending on the County. Philadelphia remains the most backward as of this morning, but we expect an update soon. Montgomery County, for example, has officially suspended all jury trials through March 27, 2020, and we suspect, will extend this date in the coming days. While a few other counties have not made official press releases clear yet, the PA governor has strongly discouraged large gatherings, which essentially prohibits jury duty and in-person conferences. Update -- Philadelphia is now shut down until April 1. In New Jersey, jury trials are suspended as of March 16, 2020, discovery deadlines are relaxed for the next two weeks , and court adjournments are being entertained on a case-by-case basis.Federal Courts’ directives differ based on locale, but the SDNY, for example, has suspended jury trials through April 27, 2020, whereas the Eastern District of PA has suspended them through April 13, 2020. Other federal courts are less specific, but we anticipate additional directives to be issues in the coming days. So in terms of how the Courts are dealing with COVID-19, there are no appearances for the foreseeable future. We have not received any guidance from the Courts as to how COVID-19 will effect discovery end dates, but we will continue to monitor the situation. But what about Depositions and Examinations Under Oath, which do not take necessarily require Court participation? While WCM is equipped and prepared to commence remote depositions, our adversaries have may have differing technological capabilities, and it takes global participation to make these arrangements viable.We also note that many of our vendors offer remote deposition capabilities, which we can explore, depending on the nature of the testimony.By March 30, 2020, we expect remote / telephonic depositions to become more normalized where we practice, and recommend a case-by case (or, in fact, a witness by witness) collaborative evaluation, as to whether remote testimony is worth pursuing. The “big picture” takeaways for WCM and our partners are that jury trials are on hold for now and in-person Court conferences are suspended, which makes sense, given the social distancing recommended by the CDC. But Courts are still functioning, motions are being decided, and attorneys can still reach each other. So our attorneys and staff are still working full time, remotely, as we continue to await further directives from the experts and authorities. Attorneys are most easily reachable by email, and all contact info is accessible at wcmlaw.com. We will continue to monitor updates in all jurisdictions where we practice, and will keep you apprised. In the interim, please stay safe, follow CDC recommendations, and please reach out to us with any questions. Previous Next Contact

News Winter Is Coming . . . “Storm in Progress” Shields Landowners from Liability in NY December 9, 2022 < Back Share to: As New York prepares itself for another season of winter, the Second Department hands landowners, tenants in possession, and even snow removal companies their first victory of the season by reversing the trial court’s order and granting defendant’s motion to dismiss in this slip and fall case. March 14, 2017 brought a winter storm that had carried on into the night, producing 6-12 inches of snow. On the morning of March 15, 2017, defendants had already begun the grueling process of removing snow and ice from public areas on the premises. However, the plaintiff David Henenlotter, was the unlucky pedestrian who discovered defendants had had not fully ameliorated the hazards caused by the winter weather, when he slipped and fell on the snow and ice at approximately 6:00 a.m. The well-settled Storm-in-Progress rule relieves a property owner, a tenant in possession, and even a snow removal contractor of liability for accidents caused by snow or ice that accumulates during a storm until an adequate period of time following the cessation of the storm to allow an opportunity to remedy the hazards. Balagyozyan v. Federal Realty L.P., 191 AD3d 749, 751. However, if one elects to engage in snow removal during “a storm in progress”, they are required to do so with reasonable care to avoid creating a hazard or exacerbating the natural hazard caused by the snow and ice. The Second Department did not articulate how much time is “adequate” in the eyes of the law, but rather, relied on plaintiff’s own concession that plaintiff could not say that defendants had sufficient time to clear the snow and ice after the storm had passed. The Court determined that was enough to decide that plaintiff failed to raise a triable issue of fact as to whether the defendants either created or exacerbated the condition that caused plaintiff to slip and fall. Thanks to Kara M. Nelson for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Wins Summary Judgment in Trench Collapse Case (NJ) April 12, 2018 < Back Share to: WCM’s Denise Fontana Ricci recently won summary judgment in a trench collapse case in which she defended a public college and the State of New Jersey in a claim by a contractor’s employee who was injured during a utility pipe replacement project. In Gage v. The College of New Jersey, et al., the plaintiff laborer was declared totally disabled, and workers’ compensation payments alone totaled over $150,000. The workers’ compensation bar prevented him from filing a civil suit directly against his employer, so he set his sights on the property owner for civil litigation. As the case progressed, WCM identified contract terms and witness testimony that brought the claim within longstanding jurisprudence establishing that a landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work provided the owner does not maintain control over means and methods of the work. Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955). This is precisely because a landowner assumes that the contractor, and by extension its employees, “are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly.” Accardi v. Enviro-Pak Systems Co., 317 N.J.Super. 457, 463 (App.Div. 1999). Although the plaintiff argued that landowners may be liable when they retain control over the means and methods, there was no real evidence that the college exerted this control over the work. The contract was clear that the contractor was solely responsible for means and methods, and this governed the relationship of the parties throughout the project. Contract terms cited by plaintiff to cloud the issue were no more than quality control provisions. ”Developing a project and directing that it be completed within a certain timeframe and within certain specifications do not constitute interference with the project and remain within the ‘general supervisory power over the result to be accomplished rather than the means of the accomplishment.” Muhammad v. NJ Transit, 176 N.J. 185, 197 (2003). The plaintiff also presented expert testimony to suggest that the industry standard places responsibility on a landowner to ensure work site safety. However, our Supreme Court has expressly found that no such duty exists. Thus, the expert’s opinion could not usurp the role of the court on this legal issue. Mercer County Superior Court Judge Walcott-Henderson granted summary judgment to all defendants, agreeing that no duty was owed to the plaintiff where there was no evidence the College controlled means and methods of its independent contractor. She decided the motion on this basis before even reaching New Jersey Tort Claims immunities. Thanks to Brent Bouma for his contribution for this post. Please write to Vito A. Pinto for further information. Previous Next Contact

News Wait Five Months To Report A Claim, Lose Insurance Coverage May 21, 2008 < Back Share to: In Avery & Avery v. American Insurance Company, plaintiff, a commercial tenant, sought a judgment declaring the defendant insurance company had an obligation to defend and indemnify it in the underlying personal injury action, Verrone v. Maryard Realty, Inc. In the underlying case, on March 2, 2004, Mr. Verrone, a client of plaintiff's subtenant, fell on a staircase in the presence of plaintiff. Subsequently, plaintiff learned that Mr. Verrone died. Plaintiff also knew Mr. Verrone's nephew came to the premises to take photographs of the accident location and that the decedent's family was "exploring the possibility of a claim." On July 2, 2004, the attorney for the Verrone's Estate contacted the out-of-possesion landowner. On August 10, 2004 plaintiff's insurance broker forwarded a notice of claim to defendant. After a brief investigation, on September 10, 2004, defendant disclaimed coverage on the ground that it did not receive timely notice of the claim. Motions for summary judgment by both parties were denied by the trial court. In reversing and granting defendant summary judgment, the Appellate Division, Second Department found that the insurance policy at issue required that notice of a claim be given as soon as practicable. While plaintiff asserted that it had a reasonable belief in nonliability, given the facts herein, the defendant established as a matter of law that the plaintiff did not have a reasonable belief that no claim would be asserted against it. http://www.nycourts.gov/reporter/3dseries/2008/2008_04451.htm Previous Next Contact

News Can’t Establish Labor Law §200 and §240(1) Claims That Easily April 19, 2024 < Back Share to: When a construction site has an accident and a worker becomes injured, the knee-jerk reaction for plaintiff’s attorneys can be to try to find a way to apply Labor Law §200 and §240(1). Owners, general contractors, and subcontractors should keep in mind that, even when they are placed on the opposite side of a lawsuit against a sympathetic, injured plaintiff, if they don’t meet the specific criteria related to each alleged Labor Law violation, then their chances of failure in potential summary judgment motions rapidly decrease. For example, in Giraldo v Highmark Ind., LLC , 2024 NY Slip Op 02042 (2d Dep’t April 17, 2024), the plaintiff was injured after he was allegedly hit by a construction machine that was being crane-lifted and moved to a different location. Plaintiff alleged, among other claims, common-law negligence and violations of Labor Law §200 and §240(1) against the owner, general contractor, and crane-owner subcontractor. Plaintiff moved for summary judgment. The Second Department affirmed the trial court’s denial of plaintiff’s summary judgement motion. Although §240(1) claims are commonly thought of as injuries occurred due to any height or gravity-related differences, the trial court clarified that, “[c]onsequently, the protections of Labor Law §240(1) 'do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'…'Rather, liability [remains] contingent upon the existence of a hazard contemplated in §240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.'" Although the machine was technically off the ground when it made impact with the plaintiff, the accident was due to their collision, not the height of the machine as it was lifted off the ground . Regarding plaintiff’s Labor Law §200 claim, the court found that liability can only attach to entities that either controlled plaintiff’s work or parties that should have established a safe place to work (the owner or GC). Since plaintiff was unable to establish that the defendants supervised or controlled the means and methods of Plaintiff’s work on the site, summary judgment was denied. The court also found material issues of fact precluded summary judgment because it was uncertain which allegedly dangerous condition or combination of dangerous conditions proximately caused plaintiff’s accident. This decision shows the importance of developing and highlighting factual nuances during litigation to successfully defend against Labor Law claims. Giraldo v. Highmark Ind., LLC .pdf Download PDF • 2.19MB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News "Brawl" At NY Hockey Game Not Assumed Risk October 5, 2009 < Back Share to: Plaintiff was injured at Nassau Coliseum while attending a charity hockey game. During the game, T-Shirts were tossed into the stands and the plaintiff was knocked over in all of the commotion caused by the other spectators trying to catch the tossed T-Shirts. Defendants moved for summary judgment, using an assumption of risk defense. The Appellate Division, Second Department, though not all in agreement on the reason, denied defendant’s motion for summary judgment. The majority concluded that defendants did not prove as a matter of law that they were entitled to summary judgment. In order to prove that plaintiff assumed the risk, they had to prove that “injury-causing events” were a known and foreseeable consequence of attending a hockey game. The majority concluded that defendants had not proven the events were a known and foreseeable consequence. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06791.htm Previous Next Contact

News Putting A Ring on It Doesn't Bind Driver to Auto Policy Tort Election in PA February 6, 2013 < Back Share to: In many states, auto policy holders need to decide under what circumstances they will be able to pursue pain and suffering claims when they sign up for coverage. The Superior Court of Pennsylvania recently addressed what parties are bound to the policy holder's choice in Sally McWeeney v. Estate of Janet R. Strickler. McWeeney was injured in an auto accident with Janet Strickler, and the York County Court of Common Pleas granted summary judgment to Strickler on the basis that McWeeney was insured under her fiancee’s Progressive Insurance policy and that her claims were barred under the policy's limited tort option. McWeeney’s fiancé, Richard Brant, was the named insured on the policy but McWeeney was listed as a principal driver along with Brant, and was also a permissive driver at the time of the accident. The lower court held that McWeeney was a named insured for the purposes of the Pennsylvania Motor Vehicle Financial Responsibilities Law, and thus bound to Brant’s limited tort election, because her name was listed on the declarations page as a principal driver. McWeeney appealed the York County Court decision, focusing on whether or not McWeeney was forced to accept the limited tort option under Brant’s policy or could elect the full tort option. The Superior Court, performing a statutory analysis, held that that a "named insured" on a policy is only that one person who is identified by name as an insured on the policy, as defined in the MVFRL. The MVFRL holds that only one who is identified by name as an insured can elect the limited court option The court also considered the issue of McWeeney’s position as a permissive driver and whether that bound her as an “insured” driver to Brant’s election of limited tort because the Progressive policy stated that all permissive drivers are considered insureds for purposes of tort election. The Superior Court found that the Progressive policy “impermissibly bars more drivers from claiming non-economic damages against third party tortfeasors than was contemplated in Section 1705”, and was therefore not enforceable. This case thus serves to clarify the meaning of “insured” under section 1705 of MVFRL and Pennsylvania insurance policies. A motorist who owns no vehicle and is unrelated to the owner of the car she drives may seek non-economic damages against a third party torfeasor, even if she was a fiancee of the named insured and a permissive driver under the policy. Any insurance policy that seeks to expand the definition of insured beyond that which is described in section 1705 will be invalidated. Thanks to Remy Cahn for her contribution to this post. If you would like more information please write to mbono@wcmlaw.com . Previous Next Contact

News Using Social Media To Prove Your Case: There's An App For That September 12, 2013 < Back Share to: The quest for social media through discovery is still relatively new. While most courts acknowledge a privacy interest in the world of cyberspace and require defendants to establish a factual predicate for disclosure, some courts simply apply the rules applicable in traditional discovery disputes. In Wilson v. Fantastic Trans., the plaintiff alleged personal injuries that prevented from teaching her dance class. The defendant requested access to her Facebook account because the account might contain information relevant to her alleged injuries. Although the court did not cite any publicly available content in the plaintiff’s Facebook profile, it nevertheless ordered the plaintiff to produce all content depicting her dancing or teaching her class. In other words, the defendant was allowed access to potentially relevant information; no more, no less. But the Nassau County Supreme Court’s decision in Wilson appears to be the exception to the rule. A textbook example of the approach taken by most courts is Pereira v. City of New York. There, the plaintiff alleged that he was injured after being knocked to the ground while working as a superintendent on a construction site. During the discovery process, the defendants demanded access to the plaintiff’s Facebook and MySpace profiles. The plaintiff objected, claiming the request was overly broad and unlikely to lead to the discovery of admissible evidence. Fortunately for the defendant, there were publicly available photographs from the plaintiff’s Facebook profile and a hockey blog depicting him playing golf and hockey. Based on these posts, the court granted the defendant’s motion to compel. The court displayed some concern for the plaintiff’s privacy, however, and ordered an in camera review of the plaintiff’s social media profiles. Publicly available social media content that contradicts a plaintiff’s allegations is usually sufficient to open the door to the private areas of an online profile. But sometimes, plaintiffs are willing to lend a helping hand. In Paccione v. Bradica, not only did the plaintiff’s Facebook profile show materials contradicting claims about his physical injuries, they also contradicted his sworn deposition testimony about vacations he had taken and fights he has been involved in. Based on discrepancies in his deposition testimony, the court ordered an in camera review of the plaintiff’s Facebook profile to determine if the private areas of the account contained information relevant to the issue of plaintiff’s injuries. The court recognized that “a plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel a plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage.” But because the publicly available content on the plaintiff’s Facebook account contradicted sworn testimony, the court ruled that discovery into the private areas of the plaintiff’s account was warranted. Courts may show some concern for a plaintiff’s privacy during discovery, but once the publicly available information opens the door to disclosure, the door may swing wide open. In Jennings v. TD Bank, the court ordered the plaintiff to provide access to the private areas of her Facebook account because the publicly available photographs showing her in front of a cruise ship established the factual predicate necessary for a defendant to obtain access to the private areas of the plaintiff’s social media account. Recognizing plaintiff’s privacy interest, the court ordered an in camera review, but the scope of the disclosure was sweeping. Not only was the plaintiff required to provide access to her private areas of her Facebook account, the court also ordered her to send an authorization to Facebook to retrieve the deleted materials as well. The message of these cases is to avoid blunderbuss discovery requests for social media data. You must first do your homework: Search for publicly available data that calls into question some aspect of plaintiff’s case. With that App in hand, you have a much better chance of getting information from the “private” space. *As a reminder, last month, we announced that Dennis Wade is presenting at the New York State Bar Association’s “Law School for Insurance Professionals” session on October 10, 2013. In his written submission, A Carnival for the Skeptic: Using Social Media in Claim and Defense Litigation, Dennis discussed the online carnival that is social media and the tools available to defense attorneys seeking to use what plaintiffs post online to as evidence against them at trial. Special thanks to Michael Gauvin for his contribution to this post. For more information, please contact Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Suffolk County Prosecutors Will Not Retry Tankleff January 4, 2008 < Back Share to: In 1990, Martin Tankleff was convicted of murdering his parents, Arlene and Seymour Tankleff. This conviction was recently reversed and a new trial granted after the Appellate Division was confronted with new evidence that implicated the former business partner of the late Mr. Tankleff. The Suffolk County District Attorney will seek to dismiss all charges against Mr. Tankleff and will ask Governor Spitzer to appoint a special prosecutor to reinvestigate this case. http://www.nytimes.com/2008/01/03/nyregion/03tankleff.html?pagewanted=1 Previous Next Contact

News WCM Partner Interviewed by The Legal Intelligencer. July 27, 2018 < Back Share to: WCM Partner Bob Cosgrove, who has assumed the presidency of the Philadelphia Association of Defense Counsel, was interviewed by The Legal Intelligencer, the nation's oldest legal journal. A copy of the interview can be found here. For more information about this post (or the PADC or WCM's Philadelphia office), please e-mail Bob at RCosgrove@wcmlaw.com .     Previous Next Contact

News Call Your Next Witness - Winter Wheeler and Brian Gibbons discuss Mediation Strategy and Tactics July 1, 2021 < Back Share to: On the July 1, 2021 episode of Call Your Next Witness, Brian Gibbons interviews Atlanta-based mediator Winter Wheeler. In addition to being a mother of 4, Winter is a former litigator who started her own mediation practice just before the onset of COVID. Circumstances being what they were, Winter quickly realized that becoming "fluent" in remote mediation was a necessity, so she got to work and has been able to thrive. It is evident from speaking to Winter that she has some unique insights and ideas about how to bring parties together for an effective mediation. A lot of it comes down to preparing effectively, to establish trust with the parties. She isn't afraid to build that trust days or even weeks before the mediation, to help make the actual mediation hearing that much more effective. Her mediation practice has thrived, despite the pandemic, and she expects to be very busy going forward. And for good reason! If you’d like to discuss being a guest, or podcast content in general, please reach out to Brian Gibbons. Previous Next Contact