News Intent To Fill Open Trenches Trumps Labor Law Liability December 6, 2011 < Back Share to: In Salazar v. Novalex, the Court of Appeals looked to reason and logic when it limited Salazar's ability to recover under Labor Law 240(1) and 241(6). While working at a construction site, Salazar stepped into a trench that was partially filled with concrete. He claimed that the trench should have been barricaded or covered to prevent his fall. In dismissing the Labor Law 240(1) claim, the Court held that the installation of the protective device that Salazar suggested would have been contrary to the objectives of the work plan. Indeed, the trenches needed to be open in order to be filled with cement. The Court similarly dismissed the Labor Law 241(6) claim because the trench, even if considered a hazardous opening, was being filled with concrete at the time. Permitting recovery defied logic since the trench had to be open in order for the work to be competed. http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/200opn11.pdf Previous Next Contact

News Court Holds Torture Committed In Iraq Is Outside Policy’s “Coverage Territory" May 15, 2009 < Back Share to: In a case involving the application of liability insurance to torture cases in Iraq, the United States Court of Appeals for the Fourth Circuit held that there was no coverage because the incidents occurred outside the policy’s coverage territory. In CACI International, Inc. v. St. Paul Fire and Marine Ins. Co., the insured was sued by detainees of Abu Gharib, and sought coverage under its general liability policy. CACI argued that the hiring and training of the insured’s employees implicated acts that occurred in the United States, within the policy’s coverage territory. This argument was rejected by the court, which noted that traditional policy interpretation used the location of the injury determined the location of the “event” for coverage purposes. http://pacer.ca4.uscourts.gov/opinion.pdf/081885.P.pdf Previous Next Contact

News Second Department Limits Assumption of Risk Doctrine in Football Injury (NY) December 5, 2018 < Back Share to: In M.P. v. Mineola Union Free School District, the Second Department reversed a lower court decision granting summary judgment to the defendant. Plaintiff was a nine year old student who was playing touch football at recess and was injured when, going for a catch, he crashed into playground equipment. The defendants argued that the infant plaintiff assumed the risk of playing football on a field adjacent to the playground equipment and that any negligent supervision was not the proximate cause of his injuries. Defendant cited to plaintiff’s testimony that he plays in the area all the time at recess despite warnings to stay away from the school recess monitors. The Second Department overturned the dismissal of the suit, because the school district failed to meet its burden in proving inherent risk, and failed to establish, prima facie, that its alleged negligent supervision in permitting the students to play football near the playground did not “create[ ] a dangerous condition over and above the usual dangers that are inherent in the sport.” The Second Department ruled despite testimony from the plaintiff that he and his friends routinely disregarded the boundaries set by school employees for the playing area, and would play outside the designated boundaries on a portion of the field that was on the edge of an adjacent playground. The Second Department also noted that plaintiff’s age (9 years old) was too young to “appreciate the risks involved” in playing touch football. We suspect there were recess monitors in the schoolyard -- possibly volunteers -- who "let it slide" when they saw the children playing football near the equipment. If we might editorialize for a moment, this seems to us like a case where the “call on the field” was correct, and the appellate court opted to hold the school district to an unreasonably high standard. Thanks to Paul Vitale for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

Emily C. Walpole Of Counsel New York ewalpole@wcmlaw.com 332 345 2226 Professional Experience Emily handles a wide range of issues, with extensive past experience in New York labor and employment law issues, including harassment and discrimination cases, whistleblower claims, and on-site injuries. Her past work includes fact analysis and investigations, drafting pleadings and motions, legal research into unique corner cases of New York law, and assistance with expert examinations at trial. Prior to entering the legal profession, Emily worked in professional theatre. She worked as a director, stage manager, and scenic carpenter in addition to taking acting roles where her schedule allowed. She brings this communication and project management experience to her work in the law. Emily received her J.D. from the University of Virginia School of Law. While in law school, Emily became active with the National LGBTQ+ Bar Association, where she now serves as a member of the membership committee, New Lawyer’s Division. Prior to joining Wade Clark Mulcahy, she worked as a labor and employment attorney at a global corporate firm in New York, NY. Honors and Distinctions 40 Best LGBTQ+ Lawyers Under 40, National LGBTQ+ Bar, 2023 Eagle Scout Phi Beta Kappa Professional Activities Emily is a member of the National LGBT Bar Association and sits on the Membership Committee, New Lawyer’s Division. She regularly speaks at the Bar’s Lavender Law conference on issues surrounding new lawyers and on employment law issues. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., University of Virginia School of Law B.A. in Theatre, University of South Carolina Bar Admissions New York

News What Is The Deal With These Legal Bills? (NY) March 31, 2022 < Back Share to: Jerry Seinfeld was just involved in a trademark lawsuit stemming from his Netflix series, "Comedians in Cars Getting Coffee," which is pretty funny, and I'm sure Jerry would concede, a fairly transparent excuse for Jerry to hang out with his comic buddies and drive around in fancy cars. I mean, that's basically the title of the show. Not a bad day's work. Seinfeld's lawsuit a former writer and director, whose claims against Seinfeld were dismissed on procedural grounds. The ensuing litigation -- and reason for this post - stems from Seinfeld's attorneys charging him roughly $973,000 in defense fees over the copyright lawsuit. (Clearly, Seinfeld does not have a billing auditor vetting the legal bills.) Last week, a federal judge in the Southern District of New York reduced the fees from $973,000 to $29,000, and referred the defense costs as "staggering" in a 21-page decision. The fact that a busy judge in the SDNY saw fit to spend 21 pages lambasting these attorneys for such exorbitant fees suggests that this decision should act as a deterrent to such practices in the future. The Court provides a thorough recitation of the reasons for the deductions, both in terms of the hourly rates, but more so, the unreasonable time spent. For example, 120 hours researching a motion to dismiss, plus another 130 hours revising that motion after an amended complaint. If only Seinfeld's attorney's name were "Newman" -- then this litigation would make more sense! Please email Brian Gibbons with any questions about this post. Previous Next Contact

News (Preserve) All The Evidence, Men (NY) June 29, 2018 < Back Share to: Most lawyers and insurance professionals know the importance of preserving evidence when a claim is asserted against an insured. But insureds who are not involved in litigation as a matter of course often express the displeasure of the taking the time necessary to collect and preserve all relevant information. As the recent First Department decision in Davis v. Pathmark makes clear, the consequences for failing to take that time to preserve evidence, in a thorough, if not exhaustive manner, can be disastrous. In Davis, the store being sued provided video surveillance footage of the plaintiff slipping and falling in the store along with 30 seconds of footage before the fall. The problem was that the defendant deleted all other footage from that day. According to the trial court and the First Department, that selective editing may have prevented the plaintiff from making its case about the origin of the liquid on the floor that caused the accident. Thus, the court struck the defendant's answer. It may well be that the defendant in Davis acted in good faith by providing what it thought was relevant evidence. But insureds often make poor judges of what may or may not be relevant or discoverable in litigation. Davis should serve as a reminder to lawyers to instruct their clients to preserve all evidence when a suit is filed and to insurance professionals to request that all information be preserved when a claim is first submitted. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Unexplained Errata Sheet Changes will not Stand January 17, 2017 < Back Share to: It has become common practice for attorneys to serve lengthy errata sheets after a client testifies in an attempt to alter the testimony. In Murillo v. The City of N.Y., after plaintiff’s deposition, he submitted an errata sheet listing forty-five correction. Plaintiff, who testified with the use of a Spanish interpreter failed to provide a translator’s affidavit for the errata sheet. The defendants moved to strike the errata sheet. Plaintiff cured the defect in his opposition to the motions by providing two sets of errata sheets, one in Spanish and one in English, together with an affidavit of a Spanish interpreter. However, the errata sheet was nonetheless found to be defective as it was not accompanied by explanations for some of the changes as required. "[A] correction will be rejected where the proffered reason for the change is inadequate." Id. Citing to Torres v. Bd. of Educ. of City of N.Y., 137 A.D.3d 1256, 1257 (2d Dep't 2016). Plaintiff’s contention that the corrections were necessitated due to confusion in the translation of the testimony was found to be unsubstantiated by the record. The court noted that “that any confusion from the translation was cleared on the record — the questions were read back to plaintiff and there is no indication that he did not understand after the interpreter explained what was being asked. Moreover, there is no indication from the record that the adequacy of the interpreter was challenged by plaintiff's counsel.” Id citing to Rodriguez v. Jones, 227 A.D.2d 220 (1st Dep't 1996). Litigants should not be afraid to contest errata sheets that do not explain the reason for the changes made. It is also important for the transcript to be clear in the instructions given to plaintiff that he should advise if he does not understand a question otherwise it will be deemed that the question was properly understood. Thanks to Valeria Prizimenter for her contribution to this post.       Previous Next Contact

News Partner Andy Gibbs Joins WCM's New Jersey Office June 17, 2021 < Back Share to: WCM is pleased to announce that Andrew Gibbs, the current President of the Union County Bar Association, has joined WCM as a partner. Andy has almost 25 years of experience representing insurance companies and their insureds in New Jersey State and Federal courts in a variety of cases including insurance coverage, general liability, product liability and toxic torts, construction defect claims and commercial disputes. Andy also provides advice and guidance to insurers in complex insurance coverage disputes involving multiple lines, including Commercial, Homeowners, Property, General Liability and Automobile. Andy was a partner with a large general practice firm in New Jersey before joining Wade Clark Mulcahy LLP, and previously worked at a large New York firm specializing in insurance matters. He received his law degree from Widener University School of Law, and his bachelor's degree from the University of Delaware. Previous Next Contact

News Facebook Discovery Permitted in New York June 6, 2012 < Back Share to: Social network data is the new frontier of pre-trial discovery. Our adversaries upload, download, tweet and post. For some unexplained and seemingly generational reason, some people are almost compelled to share intimate details of their personal lives through their use Facebook, MySpace or Twitter. The goal of obtaining Facebook data is easy to state but harder to implement. The courts balance the need for material and relevant information of one party against the expectations of privacy of the other. In D’Agnostino v. YRC Inc., the defendant developed a sound plan to obtain plaintiff’s social media postings. Rather than serve an early document demand seeking all of the plaintiff’s Facebook postings, the defense attorney first deposed plaintiff and gained valuable admissions that plaintiff routinely posted concerns about her feelings and emotions both before and after her accident. Once the trap was laid at plaintiff’s deposition, the defense attorney sprung into action and demanded all plaintiff’s social media postings and photographs concerning any mental, emotional or physical condition suffered by plaintiff regardless of whether posted by her or others before and after her accident. In a well reasoned opinion, the court held that plaintiff put her physical and mental condition in issue when she filed her lawsuit. Further, plaintiff admitted that she routinely posted about her feeling and emotions on Facebook. Accordingly, the court ruled that the defendant satisfied the two prong test for obtaining an opponent’s social media postings by: (1) specifically identifying what material was sought; and (2) establishing a factual predicate for seeking such evidence. D’Agostino is hardly the last word on the discovery of social media postings in New York. It is an important lens into how the trial courts are dealing with discovery in this area and provides a practical roadmap to how a defense lawyer can lay the proper foundation to obtain this valuable discovery. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Juror's Facebook "Friend Request" Nearly Overturns Convictions March 25, 2010 < Back Share to: Last month, two Bronx convictions for criminally negligent homicide were overturned for evidentiary reasons. Firefighters responded to a fire in an apartment building in which tenants had created partitions in apartments to create extra rooms. The new rooms, however, were cut off from both hallways and fire escapes. Due to the lack of escape routes, two firefighters were tragically killed during the fire. A jury convicted the building owners for criminally negligent homicide. Those convictions have now been overturned because, according to the judge, there was insufficient evidence that the defendant building owners actually knew about the illegal partitions. Another aspect of this recent decision examined a particular juror's behavior during the trial. One of the jurors, Karen Krell, sent a Facebook "friend request" to a testifying witness, Firefighter Brendan Cawley, during the trial. In her decision, Judge Margaret Clancy found that these actions by Ms. Krell constituted a "serious breach of her obligations as a juror", but did not quite rise to the level of misconduct that would require overturning the convictions. As it turned out, the convictions were overturned for other reasons, as mentioned above. Still, scenarios such as this one should compel judges to expand their jury instructions before and during trial. Judges generally instruct jurors not to speak to the witnesses or lawyers in the halls or outside the courthouse during the trial, so as to not create even the appearance of impropriety. Given that we are now in a digital age, judges would be well advised to expand those jury instructions from courthouse space to cyberspace, charging jurors to refrain from contacting any witness by any means, electronic or otherwise, thereby avoiding potentially costly appeals. While avoiding such cyber-contact with a witness during a trial may (and should) strike potential jurors as common sense, this case illustrates that common sense is often uncommon, and courts should offer more specific and explicit instructions to the jurors. Thanks to Brian Gibbons for his contribution to this post. http://www.nytimes.com/2010/02/24/nyregion/24black.html Previous Next Contact

News NJ Supreme Court Tackles Scope of Product Liability Act. December 29, 2010 < Back Share to: In the case of Dean, et al. v. Barrett Homes -- http://lawlibrary.rutgers.edu/courts/supreme/a-15-09.opn.html -- New Jersey’s Supreme Court was faced with the question of whether New Jersey’s Products Liability Act, N.J.S.A. 2A:58C, allowed purchases of a residential home to sue the manufacturer of an allegedly defective exterior finishing system. In reaching its decision, the Court wrote that the Product Liability Act “is not concerned with providing a consumer with a remedy for a defective product per se; it is concerned with providing a remedy for the harm or the damage that a defective product causes to people or to property.” As such, the Court ruled that the Act precluded plaintiffs from “recovering any damages for harm that the EIFS caused to itself.” However, the Court went on to note that the Act only applied to integrated products. Here, the Court concluded that the EIFS was not fully integrated into the structure of the house, such that the Products Liability Act would apply. Rather, it was a stand alone product such that the plaintiffs retained a cause of action pursuant to which they may proceed against the product’s manufacturer.” For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com Previous Next Contact

News Everything Flows Downhill: New York AD Rules That Sub's Insurers Must Fund Entire Settlement April 28, 2010 < Back Share to: New York construction litigation is like a multi-headed dragon: cut off one head (issue) and another one quickly emerges. In analyzing its ultimate exposure in this context, an insurer must consider both the underlying liability of all its insureds as well as how the coverage disputes amongst the various insurers will play out at the end of the case. In Indemnity Ins. v. St Paul Mercury, the Appellate Division, First Department grappled with a mind numbing fact pattern after a general contractor’s employee was injured due to the negligence of a subcontractor. The case discusses the interplay between New York’s Labor Law, contractual indemnity and additional insurance requirements, the hierarchy of coverage and New York’s anti subrogation doctrine. At the end of the day, the subcontractor’s insurers wind up footing the entire bill for the $3,000,000 settlement with no contribution from the owner or the general contractor. The First Department discusses the distinction between liability and coverage as well as the anti subrogation doctrine, which prevents the subcontractor’s insurer from seeking contribution from its additional insureds in an indirect effort to pick the pockets of the policies of the owner and general contractor. Who says insurance coverage litigation can't be fun? If you have any questions or comments on this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03254.htm Previous Next Contact