News New York Appellate Court Reminds the Bar that Unexcused Law Office Failures Are Not Enough to Vacate a Default August 9, 2024 < Back Share to: To vacate a default in New York, a party must generally establish that they have a valid excuse for not timely appearing and that they have a valid defense to the lawsuit. In All Island Estates Realty Corp. v. Roma Imported Car Center, Inc. , the Second Department addressed a situation where the trial court dismissed plaintiff’s lawsuit with prejudice where plaintiff’s attorney defaulted their client by failing to appear for multiple compliance conferences. In that case, the parties entered into a contract for plaintiff to list and sell the defendants’ property. Defendants tried to get out of the contract and ended up selling the property with a different firm. Plaintiff’s resulting lawsuit was dismissed after their attorney failed to appear at back-to-back compliance conferences and no reasonable excuse was provided. Plaintiff moved to vacate the dismissal order, but the motion was denied on the basis that the “law office failure” excuse was found to be conclusory and unsubstantiated. The Second Department noted that law office failure can be a reasonable excuse if demonstrated with a detailed, credible explanation for the failure, and where the failure was from an isolated and inadvertent mistake. Should the party moving to vacate an order of default properly demonstrate a reasonable excuse for the default, the court then moves to a determination if there is a demonstrated existence of a potentially meritorious cause of action. However, the Court did not have to reach the second step as it agreed with the trial court that plaintiff failed to provide a detailed and credible explanation for the plaintiff's failure to appear at the first conference and its claim of law office failure was contradictory and unsubstantiated. Accordingly, the Second Department found that the trial court correctly exercised its discretion in determining that the plaintiff failed to offer a reasonable excuse for its default and affirmed the dismissal. The case serves as a reminder for law firms to be careful in managing their calendars and to ensure that all scheduled court appearances are covered or adjourned as necessary. Where there is a pattern of failures, the penalty could be dismissal or default being entered against a defendant. Where an inadvertent default occurs, firms should be prepared to submit a detailed affirmation explaining the reason for the non-appearance to establish a proper “law office failure” defense. Thank you to William Healy for his contribution to this post. All Is. Estates Realty Corp. v Roma Imp...Car Ctr., Inc .pdf Download PDF • 179KB Previous Next Contact

News Is Getting The Right Panel Key to Appeal In NY's First Department ? May 17, 2012 < Back Share to: In New York's Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant's side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court. On appeal, the defendant did not challenge the Supreme Court's finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff's comparative negligence, precluding summary judgment. In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma. After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm Thank you for Gabe Darwick for this post. Previous Next Contact

News Renewal Application Creates No Obligation for Coverage May 19, 2017 < Back Share to: “He who represents himself has a fool for a client” - a saying often attributed to Abraham Lincoln, and just last week apparently co-signed by the Appellate Division of the New Jersey Superior Court in Sicari v Hartford Insurance Company of the Midwest. The Plaintiff attorney appeared pro se in the action. He obtained insurance through Hartford for 2010-2011 to cover his law practice, including coverage for general liability, business property liability, and lawyer’s professional liability. He paid over $2,000 in premiums. In May 2011, Hartford sent Plaintiff a letter advising that they were “no longer writing lawyer’s professional liability coverage.” Plaintiff testified he never received Hartford’s notice. In June 2011, Plaintiff sent Hartford a renewal application for lawyer’s professional liability coverage, to which he received no response. Hartford then issued insurance policies to Plaintiff for the years 2011-2012, and 2012-2013. These policies did not contain lawyer’s professional liability coverage, a fact the Court noted was suggested by a drastic reduction in premiums. In July 2013, Plaintiff found himself the subject of a potential malpractice claim, and only then did he “discover” he no longer had professional liability coverage. His suit against Hartford sought retroactive coverage based on Hartford’s failure to notify him of the decrease in coverage, and a contractual obligation to provide coverage ostensibly triggered by his renewal application and Hartford’s failure to adequately respond to same. The Court was unmoved by Plaintiff’s arguments, noting “an insured is chargeable with knowledge of the contents of a policy.” Although the case represents a confirmed victory for Hartford, the Court provided one bit of practical advice to insurance providers: when in receipt of a renewal application, “the better practice would [be] to notify the [insured] or the broker” that the coverage requested will not be renewed or is no longer offered. Thanks to Vivian Turetsky and Christopher Soverow for their contributions to this post. Previous Next Contact

News Reflections On 9/11 From NYC - 20 Years Later September 10, 2021 < Back Share to: Tomorrow, Sept. 11, 2021, marks, to borrow a phrase from FDR, a day which will live in infamy in our memory. Even voicing the words “September 11” aloud entails an immediate, somber feeling. 20 years. Different media networks have been producing documentaries to commemorate the day. There will memorial ceremonies in lower Manhattan and elsewhere, and the New York Mets and Yankees game tomorrow night was specifically scheduled over a year ago as a night of remembrance and reflection. The date holds a special place for us who lived and worked in sight of the Towers that day. New York is a large and intimidating city, even when compared to other centers of commerce in the United States. There are so many different cultures, lifestyles, occupations, neighborhoods and sub-neighborhoods, each with their own sets of values, interests and pastimes. As such, few bonds of memory or camaraderie unite all New Yorkers. Because of the size and diversity of the City, many of our citizens who commute alongside one another every day share little in common experience. September 11, 2001 changed all in an instant. As of that morning, all New Yorkers either knew someone who had just been killed, or had lost a family member, or was otherwise directly affected by the terrorist act. The World Trade Center – which only existed for 28 years before September 11, 2001 – was an iconic symbol of the City’s vitality. Everyone knew someone who worked at the Trade Center, which made the event strike us too, even where we were outside the zone of immediate danger. We all have friends who worked there, some of whom were fortunate enough to make their way home that night; others did not reach home, or the embrace of their loved ones. In the following days and weeks, City workers and residents who used to go about their daily lives separately, now all mourned together. Of course, Americans were all in mourning following September 11, 2001, but New Yorkers’ grief was direct and pointed. Literally millions of us spent those days exchanging calls and texts about people we knew, hoping and praying for good news, offering support to family members and to each other. We had all lost friends and family members, and although we did not choose to, we united as a grieving community. History teaches, ironically, that tragedy can be a uniting force. While 20 years have passed, the memory still lives in its immediacy. Previous Next Contact

News Tree Harness Suit Survives Despite Plaintiff Wearing it Backwards (PA) June 21, 2018 < Back Share to: In Pennsylvania products liability law, a defendant may avoid liability by asserting that a plaintiff misused a product. However, the case of Zimmerman v. FallTech establishes just how difficult meeting that burden can be in the event a design defect is alleged. In 2008, James Zimmerman came to help a friend cut down a dead tree and he used a FallTech safety harness. He skimmed the instructions and used the product relying on his common sense and intuition. However, he put it on backwards—the harness D-ring was facing his chest instead of his back—and suspended himself from the tree. A gust of wind caused Zimmerman to change his position, causing his full weight to bear on the harness. The harness failed; he plunged thirty-five feet resulting in a collapsed lung and a leg fracture which ultimately needed amputation. FallTech argued it was entitled to summary judgment because Zimmerman misused the product. Specifically, he put the harness on backwards and tied it to a tree. This use was not foreseeable and therefore Zimmerman could establish the causation element of the claim. The trial court agreed and granted the motion. On appeal, Zimmerman argued that under Pennsylvania law, Zimmerman offered sufficient evidence to survive the motion. The Superior Court agreed with Zimmerman. When a defendant asserts misuse as a defense, it must prove that the misuse “solely caused the accident.” Here, Zimmerman’s expert offered no less than sixteen design defects. Therefore, even if Zimmerman misused the product, FallTech was not entitled to summary judgement because there is sufficient evidence that the misuse was not solely the cause of the accident. As such, the the Superior Court reversed the trial court and remanded for a trial. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Google Images Insufficient In Attempt To Prevail On Liability (NY) August 12, 2021 < Back Share to: In Robinson v. Hess Retail Stores, LLC ,the Appellate Division, Second Department addressed the Supreme Court’s denial of plaintiff’s summary judgment motion on the issue of liability. Plaintiff alleged personal injuries when she tripped over a hole on the sidewalk abutting defendants’ premises. Plaintiff eventually moved for summary judgment contending the defendants were negligent in failing to maintain the sidewalk at issue. The court stated, “Administrative Code of the City of New York §7-210(a) "imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure". "However, Administrative Code of the City of New York §7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable". Thus, to prevail on a motion for summary judgment, a plaintiff must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect. The court mentioned that plaintiff’s expert 1) never visited the accident site and 2) relied on goggle images which were in poor quality, and as such, the images were insufficient to establish constructive notice. Therefore, the Appellate Division held that the Supreme Court properly denied plaintiff’s motion seeking summary judgment on the issue of liability. This decision serves as a reminder to closely evaluate an experts report and see exactly they relied upon when making their opinion. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NJ Supreme Court Reverses $71 Million Verdict Due to Tainted Jury Voir Dire July 28, 2009 < Back Share to: In Pellicer v. St. Barnabas Hospital, -- N.J. --, 2009 WL 2185492 (2009), a $71 million award was entered by the trial court for a serious brain injury to a four month old allegedly deprived of oxygen because of endotracheal tube problems following spinal surgery. The defendants appealed on the grounds that there had been cumulative errors and uneven treatment of the parties by the trial judge. The Supreme Court agreed with the defendants and specifically found that the jury pool had been tainted by a voir dire process that permitted the entire jury pool to hear numerous comments critical of the specific hospital where the infant was treated and hospitals, doctors and health care providers in general. Rather than conduct sidebars to explore biases of the jurors, the trial court permitted the potential jurors to air their thoughts about medical providers in open court. As a result the Supreme Court had “no confidence” that the jury could disspassionately consider the highly emotional facts presented. Additionally, the Supreme Court cited other errors that pervaded the trial as well including the trial court’s acquiescence to the plaintiff’s repeated use of inappropriate and irrelevant considerations that inflamed the jury and unequal treatment of the parties in various rulings. Previous Next Contact

News Injured Rock Climber Scales Past Summary Judgment Motion (NY) February 2, 2018 < Back Share to: In Lee v. Brooklyn Boulders, LLC, the plaintiff alleged she was injured at defendant’s indoor rock climbing facility when her foot landed in a gap between two safety mats. Defendant moved for summary judgment under the theory of assumption of risk; however, the lower court denied the motion and defendant appealed. The Appellate Division, Second Department considered defendant’s assumption of risk theory, namely that by engaging in a sport or recreational activity, participants consent to the commonly appreciates risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. For example, those who engage in rock climbing can expect to fall awkwardly and injure themselves. But the Second Department rejected defendant’s argument and found a question of fact. The fact that there was a gap in the mats where plaintiff fell constituted a concealed risk and moreover, there was a question of fact whether plaintiff’s injury a result of the generally accepted assumption of the risk. Defendant further argued plaintiff signed a waiver that would release the defendant from any liability. However, the Second Department cited to General Obligations Law 5-326 that exempts any agreement on liability with pools, gyms, and places of public amusement or recreation. The legislature enacted GOL 5-326 for public policy reasons as the state did not want businesses to avoid liability by having their customers sign waivers. A such, the waiver signed by the plaintiff in this action was ruled to be void and unenforceable. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Plaintiff on Tracks an Intervening and Superseding Cause of Accident (NY) March 3, 2017 < Back Share to: Generally, a plaintiff's comparative fault serves to reduce a defendant's liability and does not serve as a basis for seek summary judgment. But there are certain acts taken by a plaintiff that are deemed so dangerous as to eliminate any potential liability of a defendant. That was the issue litigated in Weimar v. Metropolitan Transportation Authority, et. al., where the plaintiff was serious injured when she was struck by a Metro North train. The defendants submitted evidence demonstrating that they were not negligent and that the accident was unavoidable as the plaintiff's conduct constituted an "intervening and superseding cause" which absolved the defendants of liability. Plaintiff circumvented various barriers to access an elevated track area, proceeded to walk alongside the track area, and then attempted to cross a train bridge that had limited clearance and no protective railings or fencing. In doing so, she was struck by a train and had no access to escape. Although plaintiff argued that there were questions of fact and thus summary judgment was not appropriate, the Appellate Court upheld the lower court’s decision in granting summary judgment. The Court held plaintiff’s actions were reckless and extraordinary, and constituted an intervening and superseding event and severed any causal nexus between the accident and any alleged negligence on the part of the defendants. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Philip Pizzuto Joins WCM as Partner in New York & New Jersey Offices April 4, 2022 < Back Share to: WCM is pleased to announce that Philip Pizzuto has joined us as a partner. Phil is a trial lawyer with nearly 25 years of experience representing insureds, corporations, municipalities and individuals in the New York metro area. He has tried numerous cases to verdict in the New York, New Jersey, and Federal courts in a variety of cases including employment, general liability, toxic torts, personal injury and municipal disputes. Phil also provides advice and guidance on disputes involving toxic tort, employment and ADA claims. Phil was recently a partner with a large general practice firm in New Jersey and New York before joining Wade Clark Mulcahy LLP, and previously worked at a large New York City firm where he concentrated on toxic tort and other liability matters. Phil is licensed to practice law before the New York, New Jersey and Pennsylvania Bars. He is a graduate of Temple University School of Law. Previous Next Contact

News It's deja vu all over again. Another E-Coli Outbreak Hits the US. May 7, 2010 < Back Share to: The great baseball catcher Yogi Berra witnessed a great many heroics during his tenure with the New York Yankees. Reportedly, after watching his teammates Roger Maris and Mickey Mantle hit back-to-back home runs in a game for the umpteenth time, he is reported to have said: It's déjà vu all over again. When it comes to e-coli and US manufacturers and distributors, it certainly must feel the same way. Freshway Foods of Sidney, Ohio is recalling romaine lettuce because of e-coli contamination. The lettuce, which was sold in more than 25 US states, is suspected of causing more than 19 reported cases of sickness. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.washingtonpost.com/wp-dyn/content/article/2010/05/07/AR2010050700772.html Previous Next Contact

News In NJ MVA Case, "Discovery Rule" Inapplicable Were Plaintiff Was Aware Of Worsened Injury Prior To Expiration Of The Statute Of Limitations March 28, 2012 < Back Share to: In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008. An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee. Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor. He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident. On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery. The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired. The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied. Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint. The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired. The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident. Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed. http://www.judiciary.state.nj.us/opinions/a2132-10.pdf Thanks to Heather Aquino for her contribution to this post. Previous Next Contact