News Venue is a Gamble: Casino case transferred to Bucks County for lack of minimum contacts. March 16, 2012 < Back Share to: On March 9, 2012, the Superior Court affirmed a Court of Common Pleas decision transferring the case of Wimble v. Greenwood Gaming to Bucks County from Philadelphia. The case involved an incident wherein the plaintiff slipped at fell at Parx Casino located in Bensalem, PA, which is indisputably in Bucks County. However plaintiff brought the case in Philadelphia County, ostensibly because Greenwood Gaming regularly conducts business in Philadelphia, but really because Philadelphia juries are more generous than Bucks juries. Plaintiff asserted that Greenwood conducts business in Philadelphia through its subsidiary corporations which run 3 off-track betting facilities in Philadelphia. Furthermore plaintiff claimed that Greenwood spends a significant amount of advertising dollars in Philadelphia. However, the trial court was unconvinced by plaintiff’s argument. The trial court stated that advertising does not establish venue because “mere solicitation of business in a particular county does not amount to conducting business”. Furthermore the trial court found that the corporations Wimble described as Greenwood subsidiaries, were more like sister entities. The Superior Court agreed, noting that the entirety of Greenwood’s corporate activities occur in Bucks county and the underlying incident occurred there. Furthermore the Superior Court explained that while a parent and a wholly-owned subsidiary share common goals, they are still recognized as separate and distinct legal entities. Thanks to Remy Cahn for her contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Too Much, Too Late: 2nd Department Denies Plaintiff’s Leave to Amend and Grants Defendant SJ (NY) May 3, 2017 < Back Share to: The discovery process presents a long and winding road to resolution, and in New York in particular, it often feels as if the plaintiff side is offered disproportionate leeway in terms of substance and deadlines. Plaintiffs often supplement or amend their pleadings, with tacit Court approval, frustrating the defense or minimizing its impact. However, in Tabak v. Shaw Industries, Inc., The Appellate Division, Second Department reversed the trial court’s decision to grant plaintiff’s motion for leave to amend the bill of particulars and granted defendant’s cross motion for summary judgment dismissing the complaint. In the 2010 complaint the plaintiff alleged that he was injured on August 16, 2007. In a bill of particulars dated April 28, 2010, the plaintiff reiterated that the accident occurred on August 16, 2007. At plaintiff’s deposition, he testified that the accident occurred on August 16, 2007. The matter was stricken from the trial calendar on October 28, 2013 just prior to jury selection. Approximately a year later plaintiff moved to restore the matter back to the trial calendar and for leave to amend the bill of particulars to change the date of the accident from August 16, 2007 to July 16, 2007. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, asserting that the plaintiff had conceded that the defendant did not make a delivery to the plaintiff’s location on August 16, 2007. The Supreme Court granted the portion of plaintiff’s motion for leave to amend. In its reversal, the Appellate Division noted although generally, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or devoid of merit, here the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay as plaintiff moved for leave more than four year after the action was commenced and almost a year after the matter was stricken from the trial calendar. As a result, defendant’s cross motion for summary judgment dismissing the complaint was granted as the plaintiff admitted that the defendant did not have presence at the plaintiff’s location on August 16, 2007. That the trial court initially granted the plaintiff’s leave to amend is an example of the leeway that lower courts will often provide plaintiffs. The Second Department’s reversal is at least a reminder that there are some limits. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Allows Insurer to Recover Damages Due to Misrepresentation (NY). January 11, 2012 < Back Share to: Typically, when an insurer relies on material misrepresentations made by the insured upon application for coverage, the appropriate remedy is rescission of the policy. But there may be circumstances where rescission is impractical or inappropriate, as recently occurred in Syncora Guarantee Inc. v. Countrywide Home Loans, Inc. As has been well documented, Countrywide has been under fire for various lending practices that were exposed when the housing bubble burst. Here, Countrywide sold or conveyed Mortgage Loans to trusts. The trusts, in turn, issued notes backed by the Mortgage Loans to investors. The investors were promised a return of principal with interest. Syncora, in essence, insured that payments received from the Mortgage Loans would be sufficient to cover the payments due to the investors. If the mortgages were not paid, the policies issued by Syncora would cover the shortfall. Syncora eventually filed suit against Countrywide, alleging that Countrywide misrepresented the terms of the underlying Mortgage Loans, and claims that if it had known the true details of the loans, it may have either declined to issue its financial guaranty insurance policies or issued the policies on different terms. Syncora made claims for fraud, breach of contract, and for “rescissory damages.” The insurer argued that it was entitled to rescissory damages because rescission of the policy would be unfair to the investors, was prohibited by the underlying investment contracts, and it also appears the Syncora had already paid out indemnity under the policies. The Court pointed out that, “rescissory damages, while not often used in New York, are far from an unknown form of relief. … Rescissory damages are designed to be the economic equivalent of rescission in a circumstance in which rescission is warranted, but not practicable. A solid body of case law so holds.” Countrywide argued that several courts applying New York law have held that rescissory damages are not available in New York, but the Court found that, although the cited cases did not grant rescissory damages, the cases did not hold against their availability. The Court found that, under the circumstances of this case, rescission was warranted but impractical. As such, the Court held that if Syncora can prove its case, it is entitled to rescissory damages, less premium collected. If you would like more information about this post, please write to mbono@wcmlaw.com     Previous Next Contact

News Another Twist In Florida’s New Summary Judgement Law November 11, 2022 < Back Share to: Florida’s Supreme Court recently adopted the federal summary judgment standard. Since then, lawyers and the trial and appellate courts have grappled with the twists and turns every major rule change presents. Prior to adoption of the new rule, summary judgment orders were reviewed de novo, and the trial court’s reasoning was irrelevant on appellate review. Recently, Florida’s Fourth District Court of Appeal, in Mech v. Brazilian Waxing by Sisters, Inc., Case Number 4D22-145, 2022 Fla. App. LEXIS 7444, 2022 WL 16626039 (Fla. 4th DCA November 2, 2022), found that the standard of review under the new summary judgment rule was de novo; that the new rule required that the trial court state on the record its reasoning in granting or denying summary judgment; and, that the trial court’s failure to state its reasoning on the record required reversal. While it is now clear that the trial court’s failure to state its reasoning on the record when ruling on summary judgment is per se reversible error, the standard of review to be applied is unclear. If the standard of review is de novo, the appellate court need not consider the trial court’s reasoning, and there is no need to know its reasoning. If the standard of review is abuse of discretion, the trial court’s reasoning is important to, and an intricate part of, appellate review. The same is true if the summary judgment order is reviewed under the substantial competent evidence rule. As often happens, resolution of one issue has exposed another. In holding that the trial court’s failure to state its reasoning on the record when ruling on summary judgment is per se reversible error, the Fourth District has cast uncertainty upon the standard of review to be applied in appeals from summary judgment orders. One thing is certain; the prevailing party on summary judgment must make sure that the court announces, on the record, its reasoning. Failure to do so is per se reversible error. Thanks to Charles "Chip" George for this post. Please contact Chip with any questions. Previous Next Contact

News Police Escort in Funeral Procession Does Not Trigger "Emergency Doctrine" Defense (NY) January 10, 2019 < Back Share to: In State Farm v. County of Nassau, State Farm sought recovery for property damage as part of a subrogation claim, where its insured driver, Licata was driving when he came to a full stop at a “T” intersection. There was bumper to bumper traffic on both his right and left due to a funeral procession. After looking in both directions he started to make a left hand turn. During his turn, he was struck by a police car. Mr. Licata said that the police car did not have its siren or lights on. The police officer contradicted this account. He stated that he had his lights and sirens on because he was proceeding from the back of the funeral line to the front to help escort the vehicles through the intersection. The court was presented with the question of whether the negligence or reckless disregard standard applied. The court held that no emergency existed when the police officer was escorting the funeral procession. Therefore, the ordinary negligence standard applied. The court noted that the police officers testimony was extremely credible and that they believed him when he said he had his siren and lights on prior to the impact. Unfortunately, for him it did not matter. The takeaway from this case is a simple one. Not every time an officer has his or her lights and sirens on will it automatically be considered an emergency situation. It is going to depend on the specific facts and circumstances of the occurrence. Here, the court made it clear, a police officer escorting a funeral procession is not considered an emergency. This case also has a thorough and interesting analysis pertaining to issues of law (applicability of emergency doctrine) and issues of fact (apportionment of fault.) Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NJ Tort Claims Act Defeats Contractor's Catastrophic Injury Claim February 16, 2017 < Back Share to: Plaintiff William Muha became paralyzed from the waist down when he fell off a ladder after accepting a job from Fast Signs to install signs on a column at Kean University. Muha filed a worker’s compensation claim against FastSigns and a notice of claim against the University. The worker’s compensation Judge dismissed plaintiff’s petition holding that plaintiff was an independent contractor and not an employee. The case was arbitrated resulting in a $6 million award with 50% of the comparative fault attributed to plaintiff. The defendants filed a trial de novo and moved for summary judgment on plaintiff’s claims. The Trial Court granted defendants’ motions. Plaintiff appealed. On February 8, 2017, the Appellate Division affirmed summary judgment in favor of defendants. The facts in Muha v. Kean University are not complex: The first day of the sign installation was uneventful. Although plaintiff requested a lift, the parties eventually settled on a 40’ foot ladder provided by one of the defendants. Plaintiff’s father held the ladder for some of the installation. On Day Two, the ladder plaintiff used on the day before was not available. Plaintiff did not tell the University that he needed a ladder. Instead, plaintiff decided to borrow his father’s ladder. But this time his father did not help plaintiff. As Muha was cleaning the column to install the sign, the ladder “kicked out” and began leaning toward the left. Plaintiff fell, hitting the ground and became paralyzed from the waist down. The Court held that plaintiff failed to establish a prima facie case against the University under the Tort Claims Act (“TCA”). See N.J.S.A. § 59:4-2. The Act provides that a public entity can be liable for an injury caused by a condition of its property if plaintiff establishes a “dangerous condition” existed on the property that proximately caused the injury and that the injury was “foreseeable.” In this case, plaintiff was using his father’s ladder –not one provided by the University. Therefore, the defendant did not create a dangerous condition as required by the statute. Also, the Court noted that Plaintiff did not argue that the building or the column, where the signs were to be hung, was a dangerous condition. Finally, plaintiff’s decision not to advise the University of the issue with the ladder and to solve the problem himself by using his father’s ladder, eliminated plaintiff’s ability to prove actual or constructive notice. The Court also provided a helpful analysis of whether the plaintiff was an independent contractor or an employee. “FastSigns did not retain control of the manner or means of the work that was to be performed. FastSigns was not present at the location on the day of the accident, did not provide plaintiff with the tools needed to install the vinyl signs other than the actual signs themselves, and … plaintiff [and not FastSigns had] direct communication with Kean [the client].” The Court also determined that plaintiff was not “incompetent,” in other words he was experienced with sign installation and skilled using a ladder at least three times per week. The Court also did not find that the sign installation was an inherently dangerous job or “nuisance per se.” Therefore, the Court concluded plaintiff was an independent contractor. The Court’s practical approach is notable: “[R]outine precautions such as someone hold the ladder could have decreased plaintiff’s chances of injury.” Plaintiff’s serious injuries did not override the fact-sensitive analysis of the employment relationship and the events leading up to the accident. Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NY Municipalities Slip Closer to Insolvency With Court Assistance December 22, 2010 < Back Share to: Dale San Marco was walking through a Village of Mt. Kisco-owned parking lot on her way to work in broad daylight one wintry Saturday morning in 2005, when she slipped on black ice. The source of the ice seemed to be a pile of snow that the village had created when plowing the parking lot several days earlier. The claim is that the snow melted, causing water to run-off and then re-freeze, as it is wont to do in February. The village had salted the lot one day before San Marco's accident, but "did not employ a work crew on Saturdays and Sundays to monitor the parking lot...." The State of New York, like all states, was cloaked with sovereign immunity at common law and could not be sued. New York now permits citizens to bring actions against municipalities, but such lawsuits are usually limited to cases where the municipality has received prior written notice of the hazard. Mt. Kisco has such a law and it says that the notice requirement applies to claims based upon the "accumulation of snow and ice." But the NY Court of Appeals (our highest court) has ruled in San Marco v. Village/Town of Mount Kisco (NY Court of Appeals, slip opinion No. 223, Dec. 16, 2010) that the plaintiff may continue with her lawsuit even though the municipality did not have prior written notice of the black ice that Saturday morning. Chief Judge Lippman, writing for the court, protests that "We do not hereby create a new burden on municipalities to remove all snow off-premises in order to avoid liability..." But short of having a work crew on duty 24/7 or, in fact, carting the snow off site, isn't that just what this ruling imposes on the municipalities of NY that are already careening toward bankruptcy under the burden of the benefit packages already paid to the work crews that now need to work overtime and sit and watch ice form on the ground 24/7. If you have any questions about this post, please contact John Mulcahy at JMulcahy@wcmlaw.com . Previous Next Contact

News Comparative Negligence Defense in Play Even When Plaintiff Obtains Summary Judgment on Liability November 3, 2023 < Back Share to: In Jones v Haifeng Zuo , the Appellate Division, Second Department recently addressed competing liability claims in an automobile accident case. In that case, the defendant was having trouble seeing oncoming traffic after stopping at a stop sign at an intersection. He inched his vehicle forward to look for cars and collided with the plaintiff’s vehicle. Plaintiff moved for summary judgement on the issue of liability, also seeking a dismissal of defendant’s comparative liability claim, based on Vehicle and Traffic Law § 1142(a). That section provides that “every driver of a vehicle approaching a stop sign shall stop . . . and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway, or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection." The trial court granted the motion in its entirety. The Second Department first affirmed the trial court’s grant of summary judgment as to the defendant’s liability, finding that plaintiff submitted an affidavit establishing that the defendant failed to yield the right-of-way after stopping at the stop sign and collided with plaintiff’s vehicle. However, the Court also reversed the trial court’s dismissal of defendant’s comparative negligence defense. In so holding, the Court recognized that a driver who has the right-of-way still has a duty to “exercise reasonable care to avoid a collision [and] to see what there is to be seen through the proper use of his or her senses." The defendant’s Affidavit emphasized that he remained in the same location for 10-20 seconds after moving beyond the stop sign so there were triable issues of fact as to whether plaintiff holds some liability for failing to reasonably avoid the accident. The takeaway from Jones is that automobile defendants should pursue a comparative negligence defense even when they have potential liability and plaintiff will likely prevail at the summary judgement stage. Pressing and preserving the defense can weaken a plaintiff’s damages claim and provide stronger settlement leverage. Jones v. Haifeng Zuo .pdf Download PDF • 1.24MB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News Court Has Authority to Determine if Undefined Term in Contract is Ambiguous February 2, 2009 < Back Share to: On January 6, 2009, the New York Supreme Court granted a plaintiff’s motion for summary judgment in a contract dispute that arose over the term “visitor.” The defendant agreed to advertise on the plaintiff’s website provided the plaintiff had 36,000 visitors to the site. The plaintiff met this number, although the “visitors” may have included repeated users of the site. The defendant argued that the term “visitor” in the contract, referred to “unique visitors” and not repeat users. The court disagreed noting that the determination of whether a term in a contract is ambiguous is a question of law. Although the term visitor was not defined in the contract, the court believed that the plain meaning was unambiguous. Accordingly, the court granted plaintiff’s motion. Thanks to Bill Kirrane for his contribution on this post. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2009JAN/3001028302008001SCIV.pdf Previous Next Contact

News The Holy Spirit Comes in Pennsylvania. November 29, 2011 < Back Share to: Last year we reported on the case of Barrick v. Holy Spirit. In Barrick, the Pennsylvania Superior Court was faced with the question of whether correspondence between an attorney and her retained expert (which discussed case strategy) was discoverable. The Superior Court ruled that attorney/expert correspondence was discoverable under Pa.R.C.P. 4003.5(b) that requires an expert to disclose “the substance of the facts and opinions to which the expert is expected to testify” as well as “the grounds for each opinion.” This disclosure “right”, reasoned the Court, trumped the attorney work-product privilege. A howl of protest immediately ensued and the Superior Court agreed to revisit the issue. In a newly issued decision, the Superior Court has reversed itself. The Court wrote that disclosure of “correspondence between an opposing party’s attorney and the expert witness retained by that party falls outside the express language of Pa.R.C.P. 4003.5(a)(1).” The Court further wrote that because “correspondence between Appellants’ counsel and Dr. Green [the expert] constitutes attorney work product pursuant to Pa.R.C.P. 4003.3, we conclude that it is not discoverable under the Pennsylvania Rules of Civil Procedure.” The bottom line is that attorneys can talk to their experts in peace, free from fear that their communications will become discoverable. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Jury Allowed to Consider Amount of Medicare Payments - not Amount of Provider Bills (NJ) October 14, 2016 < Back Share to: One of the battles that rages in every personal injury cases is over the "boardables" - which includes the amount of medical expenses that a plaintiff can present to a jury as part of their damage claim. As anyone who has reviewed an Explanation of Benefits form knows, there is a dramatic difference between the amount a medical provider bills and the amount they are reimbursed by a medical insurer or Medicaid. So which of those amounts should be presented to a jury? That issue was at the forefront of Charles v. Thomas, M.D., et al., which involved a cardiopulmonary arrest following a routine ENT procedure which lead to a variety of debilitating conditions. Prior to trial, the defendants moved to limit the plaintiff’s presentation on damages to the amount Medicare actually paid for the plaintiff’s medical treatment – versus the amount the providers billed – arguing that the significantly lower figure properly represented the plaintiff’s incurred loss. The plaintiff opposed the defendants’ motion on the theory that the amount the medical providers billed reflected the incurred loss and should be admissible to “more fully inform the jury as to the extent of Plaintiff’s injuries resulting from his heartbreaking ordeal.” In siding with the defense, the judge distinguished between insurance payments, which would be deducted from any award consistent with New Jersey’s collateral source rule, and Medicare payments, costs which plaintiffs are required to reimburse. Citing in part to the "made whole" principle, the court determined that the “incurred loss” was the amount the plaintiff actually owed Medicare for his treatment, and the plaintiff was limited to presenting only that figure in support of his damages claim. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Unfamiliarity with Electronic Filing is No Excuse (NJ) June 6, 2019 < Back Share to: In Cuomo v. TSI Ridgewood, LLC dba New York Sports Club, the plaintiff sued New York Sports Club after tripping over an exercise bench, alleging fractures in her left wrist and left elbow, cartilage tears in her left knee, and herniations in her cervical spine. After the parties exchanged liability expert reports, with the plaintiff alleging the subject exercise bench was out-of-place and defendant alleging the opposite, discovery ended. The parties appeared for mandatory, “non-binding” arbitration. Although defendant sought to vacate the resulting arbitration award, the court held its efforts did not substantially comply with mandatory requirements – rendering the award “binding.” According to R. 4:21A-1, essentially all tort actions arising out of automobile negligence as well as all personal injury claims (except professional malpractice and productions liability actions) proceed to mandatory, non-binding arbitration at the close of discovery. Although the arbitration award is “non-binding,” the decision is final and enforceable as a judgment if (1) a party does not petition the court within thirty (30) days for a trial de novo and (2) pay the appropriate trial de novo fee. See R. 4:21A-6; N.J.S.A. 2A:23A-26. If a party fails to heed this procedural requirement, the court “shall, upon motion of any of the parties, confirm the arbitration decision.” Ibid. In Cuomo, the plaintiff asserted a personal injury claim. Pursuant to R. 4:21A-1, the case was referred to mandatory, non-binding arbitration. The arbitrator entered the arbitration award on January 31, 2018, categorizing plaintiff’s damages as multiple fractures and herniations, with alleged specials including lost wages and out-of-pocket expenses. The arbitrator entered a gross arbitration award of $250,000 – reduced to a net award of $200,000 due to plaintiff’s 20% comparative negligence. According to the rule, the defendant had thirty days (until March 2, 2018) to file a trial de novo demand and pay the requisite fee. Defendant first attempted to file the demand by serving the clerk of the Civil Division by courier service on February 13, 2018 with a physical check. The clerk rejected the demand and the check on February 21, 2018 because “[a]ll…documents filed by an attorney or law firm must be done electronically through eCourts” and indicated the documents would be marked "'received' but not 'filed[.]'” Although defendant next filed the demand electronically via eCourts on February 23, 2018, the clerk responded, “Payment Missing.” No further action was taken. After thirty (30) days expired, the plaintiff filed a motion to confirm the arbitration award and enter judgment, while defendant sought leave to file the demand for trial de novo. The trial court ruled for the plaintiff and entered judgment in the amount of the arbitration award. Defendant appealed. The Appellate Division affirmed, noting (1) all attorneys were required to have an Judiciary Account Charge System (JACS) account to electronically file documents that required a fee as of May 17, 2017; (2) all attorneys were required to file all documents electronically via eCourts (in the venue) as of October 16, 2017; and (3) defendant did not substantially comply with the trial de novo rule. As a result, clerical errors do not warrant relaxation of the thirty-day trial de novo period. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact