News Inadvertent Disclosure of Personal Information in Court Filing Held Not Actionable November 3, 2023 < Back Share to: The protection of confidential personal information has become an important part of doing business and in the practice of law. The unauthorized release or publication of such information can lead to significant consequences, including civil liability. However, not all disclosures will result in liability, as the New Jersey Appellate Division found in a recent decision. In Johnson et al. v. City of Hoboken and Kraus , plaintiffs initially filed suit against the City of Hoboken for alleged racial discrimination. In seeking summary judgment in that case, the law firm representing Hoboken filed certain documents on eCourts containing unredacted personal information concerning plaintiffs including Social Security numbers, driver’s license numbers, dates of birth and criminal history. The error was quickly discovered, and the firm successfully moved to have the information redacted from the public record. Nonetheless, plaintiffs filed a separate lawsuit against the firm and several of its employees alleging a privacy violation, violation of New Jersey Court Rule 1:38-7, and intentional and negligent infliction of emotional distress. The trial court dismissed the claims finding, among other things, that there was no private cause of action under the court rule and that plaintiffs did not establish an invasion of privacy claim. The Appellate Division affirmed, holding that R . 1:38-7, which states that personal identifiers such as social security numbers and driver’s license numbers must be redacted before filing with the court, does not provide for a private cause of action against parties who inadvertently upload unredacted personal information. The Court also found that plaintiffs could not assert an invasion of privacy claim under the circumstances as the information was inadvertently uploaded for only a short period of time before it was removed. Plaintiffs could not assert negligent or intentional infliction of emotional distress claims because plaintiffs could not show that the defendants’ actions were “extreme and outrageous” or that plaintiffs sustained any emotional distress. Finally, the Court rejected plaintiffs’ claims that defendants violated plaintiffs’ rights under the New Jersey Constitution because such claims apply against state actors, not private individuals. The Johnson case serves as a reminder that the disclosure of protected personal information in court filings can result in potential civil liability. While the Court correctly dismissed the claims in Johnson under the circumstances of that case, the decision serves as a warning for attorneys and parties to take extra care in handling and filing documents which contain protected information. Joseph Johnson, et al. v. City of Hoboken, et al. .pdf Download PDF • 90KB Previous Next Contact

News Precedential Pennsylvania Decision Deems Nursing Home Arbitration Agreement Unconscionable & Inherently Unenforceable (PA) July 8, 2022 < Back Share to: In an opinion released on July 5, 2022 in Kohlman, Administratrix for the Estate of Fay A. Vincent, Deceased v. Grane Healthcare Company, et al., 2022 Pa. Super 118, the Superior Court of Pennsylvania issued a precedential decision regarding whether an arbitration agreement between may be considered unconscionable and therefore unenforceable. Despite both Pennsylvania and federal law favoring arbitration enforcement as a matter of public policy, the Superior Court determined that the underlying arbitration agreement in Kohlman was inseverable and unconscionably, inherently unenforceable. In Kohlman, the daughter of decedent, Faye Vincent (“Vincent”), brought a negligence, survival, and wrongful death action against Highland Park, a skilled nursing home facility in Pittsburg, PA, after her mother, Vincent died therein three (3) months after admission. By way of context, Vincent was admitted directly to Highland from a nearby hospital for care and rehabilitation related to congestive heart failure, diabetes, pressure ulcers, anxiety, depression, lack of focus requiring substantial narcotic medication. Importantly, Vincent had severely impaired vision where, even with glasses, she could not read newspaper headlines. Highland was additionally aware on intake that, due to this, Vincent preferred all decisions on her care be discussed with her family. In preliminary objections, Highland Park sought to compel the matter to arbitration pursuant to an arbitration clause found in the Nurse Services Agreement (“Arbitration Agreement”) signed by Vincent and Highland’s Admission’s Director. The Allegheny Court of Common Pleas overruled Highland’s objections finding the Arbitration Agreement unconscionable and thereby unenforceable. Highland promptly filed its initial appeal to the Pennsylvania Superior Court who in turn affirmed the trial court with respect to the wrongful death claim but remanded for further discovery regarding particulars of the survival claim. On remand, Allegheny Court of Common Pleas again found the Arbitration Agreement wholly unconscionable. Highland petitioned the Superior Court for reconsideration giving rise to the subject decision. Generally, per Pennsylvania law and the Federal Arbitration Act, 9 U.S.C § 2, courts must compel arbitration of claims subject to an agreement, unless found otherwise unenforceable through a valid contract defense such as unconscionability. To win on a theory of unconscionability, the party challenging enforcement of the contract must establish procedural unconscionability, they had no meaningful choice in the agreement, and substantive unconscionability, where the terms are unreasonably favorable to the non-challenging party. On the second and subject appeal, the Pennsylvania Superior Court unequivocally affirmed. Specifically, the court found the Arbitration Agreement was procedurally unconscionable being that Vincent was physically and mentally incompetent upon signing, Highland did not read the entirety of the document to her to ensure she understood, nor did they consult Vincent’s family or even provide Vincent with a copy so someone else could read it to her. Plus, Vincent’s direct transfer from a nearby hospitalization gave her no awareness of other healthcare options, which in tandem, left an absence of any meaningful choice but for Vincent but to sign the Arbitration Agreement. Further, the Superior Court agreed that the Arbitration Agreement subjected Vincent to undue economic restraint in requiring that her, or her heirs, would pay 50% of all arbitration costs, including the arbitrator’s fees. Typically, agreements are found conscionable in Pennsylvania if they contain a provision requiring payment of 50% of the arbitration costs or the arbitrator’s fee. However, the Superior Court found that implementation of both, especially where the challenger had no opportunity to know, was substantively unconscionable with respect to any cause of action since it imposed additional expenses on bringing a claim that Vincent, otherwise, would not have had to bear in court. Despite Highland’s argument that the Arbitration Agreement’s severability clause would have rendered the fee language moot making the Agreement otherwise substantively conscionable, the Superior Court did not bite. Rather, it found that requiring nursing home residents to pay 50% of an arbitrator’s fee was so unreasonable that it was per se against public policy and inherently unenforceable. Even if the pertinent clause were to be severed, the Arbitration Agreement would remain silent on the essential term of who is to pay any such fees. The court declined to supplement the Agreement with a reasonable fee sharing alternative, as is possible where a term is omitted, being that this term directly sought to take advantage of Vincent financially. Through Kohlman, the Superior Court provides precedential guidance for those drafting arbitration agreements subject to Pennsylvania law, and those seeking to enforce or challenge their feasibility in the face of litigation. Thanks to Kendal Hutchings for her contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Inspection Work Not Applicable Under Labor Law Statute (NY) August 25, 2023 < Back Share to: In Lauria v. Lippolis Constr., Inc., 2023 NY Slip Op 04374 (2nd Dept. 2023), a building inspector working for the Village of Port Washington was on a construction site. He lowered himself into an open excavation and then tripped and fell while inside the excavation. He subsequently filed suit against the property owner and general contractor under Labor Law Sections 200, 240(1), and 241(6). The defendants eventually filed their motion for summary judgment arguing plaintiff had no relief under Labor Law §§ 200, 240(1), and 241(6) because he was not an employee at the time of the accident. The trial judge granted the motion and the plaintiff appealed. The Second Department reasoned that in order to obtain relief under Labor Law §§ 200, 240(1), and 241(6), a plaintiff must first prove he was permitted to work on a building or structure and that he was hired by a either the owner, general contractor or a subcontractor. The Court also felt that whether inspection work falls within the umbrella of the Labor Law must be determined on a case-by-case basis, depending on the type of inspection work. The deposition testimony and evidence showed that neither the plaintiff nor his employer, the Village of Port Washington, had been hired to do any work on the construction site, and that the plaintiff was only performing a visual inspection of the excavation after the property had already been fully excavated. This case provides insight into a small caveat of Labor Law, which excludes an inspector, or someone of that profession, not hired by the property owner, general contractor or a subcontractor, who comes on to the construction site and is injured as a result of his work there. The distinction falls on whether an inspector is a “covered” person under Labor Law §§ 240 (1) and 241 (6) if “his inspections were essential, ongoing, and more than mere observation" (Dubin v S. DiFazio & Sons Constr., Inc., 34 AD3d at 627; see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]; cf. Martinez v City of New York, 93 NY2d 322 [1999]). Thanks to Ray Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News First Department Denies Defendant's &quot;Threshold Motion&quot; Due to Untimely IME? January 25, 2011 < Back Share to: In Quinones v. Ksieniewicz, the First Department modified the decision of New York County Supreme Court, which had granted defendant's "threshold" summary judgment motion. Plaintiff' underwent an IME, which demonstrated no "permanent consequential limitation of use". Plaintiff then failed to raise a triable issue of fact in opposition to defendant's motion. The First Department noted, however, that defendants failed to prove that plaintiff did not sustain a non-permanent injury for 90 of the 180 days immediately following the accident. The Court notes that the medical reports relied upon by defendants are dated approximately 2 years after the accident, as opposed to the six months immediately following the accident. The Court implies, then, that if plaintiff's medical reports are dated later than 6 months after the date of loss, no defendant can meet their burden of demonstrating that plaintiff did not sustain a non-permanent injury. This is troubling, because the statute of limitations for negligence, the most common cause of action in auto accidents, is three years. A plaintiff could conceivably wait a year to bring suit, thereby rendering a defendant's threshold motion moot, at least as to a non-permanent injury. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00270.htm Previous Next Contact

News PA Superior Court -- Insurers Cannot Recover Defense Fees Absent Express Contractual Provision. May 9, 2008 < Back Share to: In the case of American and Foreign Insurance Company, et. al. v. Jerry’s Sport Center (2008 PA Super 94), the defendant Jerry's Sport Center was a PA based firearm distributor. In June 2000, the NAACP sued Jerry's Sports for negligently distributing handguns that were then used to commit crimes. At all times relevant to the suit, Jerry's was insured by Royal Insurance. Upon receipt of the claim, Royal agreed to defend Jerry's but reserved on the issue of indemnity. The ROR also noted that Royal retained the right to recover defense fees if a court determined that the Royal policy did not provide coverage to Jerry's for the NAACP suit. Ultimately, Royal was able to obtain a judgment that its policy did not provide coverage to Jerry's. It then sought (and successfully obtained at the trial level) a judgment requiring Jerry's to reimburse Royal for paid defense fees. Jerry's appealed and the Superior Court got the case. The Superior Court reversed the trial court and held that Jerry's was not required to reimburse Royal. In reaching its decision (which was a case of first impression for a PA appellate court), the Superior Court analyzed the majority view (which holds that there is a “a right of reimbursement based on the existence of an implied contract between the insurer and its insured created through a reservation of rights letter”) and the minority view (which holds that reimbursement is only possible if there is a “specific reimbursement clause in the Policy”). The Court sided with the minority view and held that if “an insurer wishes to retain its right to seek reimbursement of defense costs in the event it later is determined that the underlying claim is not covered by the policy, the insurer is free to include such a term in its insurance contract.” http://www.courts.state.pa.us/OpPosting/Superior/out/a02040_08.pdf Previous Next Contact

News Taut Tape Injury Not Within the Ambit of Labor Law 240(1) December 6, 2018 < Back Share to: In Garcia v. DPA Wallace Avenue I, LLC, et al., the First Department reaffirmed the lower court’s decision, awarding DPA Wallace summary judgment, and denying plaintiff’s cross motion for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241-a claims. Garcia, an elevator mechanic, was preparing to dismantle components of an elevator when the "selector tape," a thin strip of metal, broke and "snapped" upwards, cutting his hand. Garcia creatively argued that the tension put on the tape was created by a gravitational force from a weight in the overhead room, which essentially acted as a counterweight to keep the tape taut. The First Department rejected plaintiff’s argument, noting that the object upon which the force of gravity was applied -- the weight in the overhead room -- was not material being hoisted, nor was it a load requiring securing for plaintiff’s work. Thus, the snapping of the tape was not the result of the gravitational pull, necessary to put the case within the ambit of Labor Law 240(1). The First Department also upheld the dismissal of the Labor Law § 241(6) and Labor Law § 241-a claims since plaintiff was not subject to the overhead hazard of falling objects. While the courts have continually expanded the breadth of Labor Law 240(1), this case reinforces that plaintiffs must prove that their resultant injury stems from a true gravity-related hazard.   Previous Next Contact

Nishall N. Jairam Counsel Florida njairam@wcmlaw.com 561 231 2684 Professional Experience As a seasoned insurance attorney with more than two decades of experience, Nishall represents insurers in first‑party property and complex insurance matters. Over the course of his career, Nishall has handled cases from their initial stages through final resolution, developing a reputation for steadiness under pressure and meticulous in execution. His practice encompasses residential and commercial property claims, assignment‑of‑benefits disputes, coverage issues, and high‑exposure litigation, requiring both legal precision and practical problem‑solving. Throughout his career, Nishall has worked closely with claims professionals, consultants, and experts, valuing collaboration as an essential part of effective advocacy. He understands that insurance litigation is not just about winning motions or defending depositions, but about managing risk, controlling costs, and aligning legal strategy with business objectives. His approach emphasizes clear communication, realistic evaluations of exposure, and measured decision‑making. Qualities that reflect his belief that patience, when paired with experience, leads to sound judgment. What distinguishes Nishall is his ability to remain composed and focused even in contentious, high‑stakes environments. He brings a balanced perspective shaped by years of courtroom experience, negotiations, and client counseling. Rather than reacting to conflict, he approaches each matter with patience and foresight, understanding that the best outcomes often come from restraint, preparation, and timing. Outside of the technical aspects of the law, Nishall views his work as a responsibility to bring clarity to complex situations. Whether advising on litigation strategy, evaluating coverage issues, or resolving disputes, he strives to be a steady presence for clients navigating uncertainty. His career reflects a commitment to professionalism, integrity, and the belief that patience—applied consistently over time—is not only a virtue, but a lasting advantage. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., St. John’s University School of Law B.S. in Management, St. John’s University, cum laude Bar Admissions Florida

News Court Finds No Defense Duty Due to Damage Claim (NY) December 13, 2013 < Back Share to: When evaluating whether a lawsuit against an insured triggers a duty to defend, insurers often focus on the complaint's factual allegations of liability. Recently, in Certain Underwriters at Lloyd’s London Subscribing to Policy Number SYN-1000263 v. Lacher & Lovell-Taylor, it was determined that the damages alleged in the underlying action brought the claim outside of the scope of coverage of the professional liability policy issued by the plaintiffs. The Appellate Division, First Department upheld the trial court’s award of summary judgment declaring that the insurer was not obligated to defend or indemnify the defendants in the underlying estate proceeding, and also granted summary judgment on its cause of action for reimbursement of its defense costs. The complaint in the underlying action claimed that the defendants overbilled their client in the underlying estate proceeding, but they never alleged facts which would have shown that if not for their negligence, they would have obtained a better result. The Court also focused on the fact that a damage claim for the return of legal fees is not a claim for “damages” in a legal malpractice action as defined by the professional liability policy the insurers issued. Based on the court’s determination that the insurer did not owe an obligation to defend and indemnify, it is important that insurers evaluate not only the facts of the event which give rise to potential liability for a claim, but also the damages sought, in order to determine whether there is an obligation to provide coverage. Thanks to Jorgelina Foglietta for her contribution to this post. Previous Next Contact

News Labor Law in the Time of COVID-19 (NY) April 17, 2020 < Back Share to: Will plaintiffs be able to pursue claims under the New York Labor Law if they contracted COVID-19 and developed serious complications after working at a construction job site? Although it is highly likely the plaintiff’s bar will attempt to use Labor Law §200 or §241(6) to make out violations against owners and general contractors for these types of claims, it is unclear if these attempts will ultimately be successful. With regard to Labor Law §241(6), plaintiffs will likely cite violations of the following two Industrial Code provisions: §23-1.7(g), which requires employers to test “unventilated confined areas” for dangerous air contaminants prior to permitting workers to work in that area; or §12-1.4, which bans employers from permitting workers to work in a room “in which there exist dangerous air contaminants.” However, we suspect, the majority of coronavirus Labor Law claims are likely to fall under Labor Law §200 or common law negligence claims, which would require plaintiffs to show that the owner or general contractor had notice of an unsafe condition. It is arguable whether the New York State and New York City directives to avoid non-essential work due to the coronavirus would constitute “notice of an unsafe condition.” Given the dearth of direct case law, we expect plaintiffs to turn to somewhat analogous case law involving employees infected with HIV or Swine Flu (Wiener v. City of New York, 939 N.Y.S.2d 745 (Sup. Ct. Qns. Cty. 2011)), or case law relating post 9/11 asbestos remediation work in New York City. In one such case, the First Department addressed the two Industrial Code sections discussed above and held that, where §23-1.7 was inapplicable, §12-1.4 alone was not sufficiently specific to support a cause of action under Labor Law §241(6). See Kagen v. BFT One Liberty Plaza, 62 A.D.3d 531 (1st Dep’t 2009). Thus, while it appears there are likely several arguments plaintiffs may attempt to raise in connection with the New York Labor Law, the ultimate success of these arguments may be limited, at least, for now. However, as this likely will be a highly litigated area, we will continue to keep you updated as new case law emerges. Thanks to Shira Straus for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Slip Slidin’ Away – Student’s Fracture Occurred too Quickly for School to React (NY) July 28, 2016 < Back Share to: In Elbadwi v Saugerties Cent. Sch. Dist, the Third Department recently discussed the standard of care that schools must exercise to prevent children from being injured by snow and ice. Plaintiff, a 10-year-old student attending Cahill Elementary, she slipped and fell on any icy surface in December 2012 on the school’s playground during recess. On the day of plaintiff’s injury, the school’s lunch monitor expressly told all students, including plaintiff, that they had to remain in a specific area of the blacktop during recess. According to the lunch monitor, the students were told that they could not walk onto the actual playground, as its rubber surface was icy and all the equipment was covered with snow. Less than a minute after recess began, the plaintiff claimed that, in order to avoid colliding with another classmate, she jumped onto a slide on the playground, slipped, and fractured her upper left arm. The infant plaintiff and her mother brought suit against the Cahill Elementary school district for 1) failing to maintain its property in a reasonably safe condition and 2), negligently supervising the infant plaintiff. After completing discovery, the defendant moved for summary judgment dismissing plaintiff’s complaint. The Supreme Court granted defendant’s motion as to the negligent supervision claim, but denied the portion of defendant’s motion seeking to dismiss the premises liability claim. According to the Supreme Court, there were questions of fact that precluded summary judgment regarding whether the defendant maintained the playground in a reasonably safe condition. The parties cross-appealed. The Appellate Division, Third Department, held that the complaint should have been dismissed in its entirety. In terms of plaintiff’s negligent supervision claim, the Court noted that while schools have a duty to adequately supervise children in their care, they are not “insurers of their students’ safety.” Instead, schools are charged with the same degree of care that would be exercised by a reasonably prudent parent in similar circumstances, and when a child’s accident occurs in such a short period of time that “even the most intense supervision could not have prevented it, lack of supervision is not the proximate [cause] of the injury,” and summary judgment is warranted. In the case at bar, the defendant’s expert, an experienced school administrator, argued that the ratio of students-to-monitors was sufficient to provide proper supervision and that the lunch monitor provided reasonable supervision to the plaintiff on the day in question. Even more important to the Court was the infant plaintiff’s own testimony. According to the infant plaintiff, as soon as the doors opened for recess, she and two friends ran toward the playground. When her friends turned to play kickball on the blacktop, she kept running toward the playground. Her friends called out her name, she turned, and when she “wasn’t paying attention” nearly collided with another classmate. To avoid the classmate, she swerved toward the playground equipment only to realize that she was about to trip over the slide. On instinct, she jumped up to avoid tripping, landed on the icy slide, slipped, and broke her arm. Because the plaintiff confirmed that “no amount of supervision” could have prevented her injury in such a short period, the Third Department affirmed the Supreme Court’s dismissal of plaintiff’s negligent supervision claim. With regards to plaintiff’s premises liability claim, the Third Department reversed the Supreme Court. According to the defendants’ expert, because the plaintiff was expressly instructed not to use the playground or playground equipment, the school had no duty to clear that area of snow. Further, it would have been “nearly impossible” to remove all the snow the rubberized playground surface. In response, the plaintiff failed to provide their own expert or submit any evidence sufficient to raise a question of fact as to the defendant’s obligations to remove snow from the playground. Instead, the plaintiff only provided a bare assertion that the school was required to remove snow and ice from the playground. The Court concluded that, even if plaintiff submitted sufficient evidence to raise a question of fact, the plaintiff’s injury were likely the result of her own inattentiveness, not the condition of the slide. Please note the importance of the appropriate experts in the defendants prevailing on both causes of action. Without them, this case would have found itself before a potentially sympathetic jury. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Timeliness Required Under Direct Action Statute (NY) May 27, 2016 < Back Share to: New York Insurance Law § 3420(a)(2) allows an injured party who has an unsatisfied judgment to file suit against that parties insurance company - but certain conditions still need to be met. Seville Electronics sued D.P. Holding to recover damages suffered in a fire. The parties agreed to a settlement for more than $800,000 that included a confession of judgment. In Mt. Hawley Ins. Co. v. Seville Elecs. Trading Corp., D.P. Holding's insurer, brought a declaratory judgment action seeking a declaration that it was not obligated to provide coverage and Seville filed a counterclaim pursuant to the Insurance Law to recover the amount of the unsatisfied judgment in the underlying action. Plaintiff moved for summary judgment dismissing the counterclaim, which the court denied. On appeal, the Appellate Division, 2nd Department, found that although Insurance Law § 3420 does allow for recovery of an unsatisfied judgment, it requires that the injured party demonstrate that they acted diligently in ascertaining the identity of the insurer and then notifying that insurer in an expeditious manner. Here, because Seville failed to act diligently in expeditiously notifying the insurer of the judgment, the appellate court reversed the Supreme Court’s order. Thanks to Josh Gornitsky for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Ouch! Look Out For Bedbugs! August 31, 2010 < Back Share to: Hoteliers (and their insurers) beware! Bedbugs, long believed to be eradicated, are on the comeback -- http://www.nytimes.com/2010/08/31/science/31bedbug.html?_r=1&ref=science! No one is quite certain why the resurgence has resulted, but, regardless of cause, care need to be paid as the cases and suits are hard to defend. The first difficulty with bedbug cases is that a bedbug bite brings to mind a dirty hotel or establishment. Yet cleanliness (or the lack thereof) does not automatically prevent or cause a bedbug infestation. The second problem is that an accusation of a bedbug infestation always brings bad publicity with it. So a vigorous legal defense might not always be the most prudent business strategy. The third major problem is that most medical doctors are not trained entomologists – skilled in identifying bed bug bites. So, good diagnoses – especially since evidence of the bite is usually long gone before the claim or suit arises – can be hard to come by. Finally, bed bugs can be found in many places including prosecutor’s offices --http://abovethelaw.com/2010/08/bed-bugs-v-brooklyn-d-a-s-office-round-2/ -- and second hand stores -- http://www.nbcphiladelphia.com/news/weird/Bedbugs-Living-In-Bed-Set-Eat-Woman-for-a-Year-101129784.html. So proving or eliminating causation can be a difficult and expensive undertaking. But, the bottom line is that, regardless of difficulty, bedbugs are seemingly here to stay -- http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-bedbug-conundrum,0,6868045.story. Ouch, indeed. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact