News Don't Be Late - NY APP Div. Finds Tardy Defendants In Default November 1, 2010 < Back Share to: In the recent decision of Blaunt v. Berkovits, the Second Department held that the trial court had erred in excusing defendant's default in failing to timely answer the complaint. Let this be a lesson -- though parties are usually lax about a couple of days and many are willing to provide stipulations extending time to answer -- the New York State Courts are not always as forgiving. Here, they determined that though there was only a short delay in answering the complaint, the defendants failed to provide any satisfactory explanation for the delay and failed to make any showing of any potentially meritorious defense to the claims raised by plaintiff. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07707.htm Previous Next Contact

News Can't Always Blame Your Secretary (NJ) September 13, 2013 < Back Share to: In the recent unreported decision of Vanderslice v. Stewart, the court considered whether to confirm an arbitration award although the defendants had failed to timely file a demand for trial de novo following a non-binding arbitration. Vanderslice alleged that he was injured in a motor vehicle accident. A mandatory, non-binding arbitration was held on January 18, 2012, with a determination that the County was 100% liable to Vanderslice for approximately $145,000 in damages. The time to reject the arbitration award and file a demand for trial de novo expired on February 17, 2012. After confirming that no such demand was filed, on February 23, 2012, Vanderslice filed a motion to confirm the arbitration award and the defendants cross-moved to permit a late filing. In their cross-motion, the County’s attorney reported that an attorney from his office had prepared the demand and had given it to a secretary to file. Although the demand was sent to the court, the required fee was not attached. Rather, a direct voucher accompanied the filing, not an actual payment. The County’s attorney argued that they had substantially complied with the standard within the required time. The judge agreed and granted the County’s motion. The case eventually went to trial and the jury rendered a defense verdict. Vanderslice appealed. The Appellate Court held that the time for rejecting an arbitration award is to be strictly enforced and should only be relaxed upon a showing of exceptional circumstances. The Court further noted that counsel’s inattention, carelessness, neglect or lack of substantial compliance did not constitute an extraordinary circumstance. Ultimately, the Appellate Court found that in this specific case the County attorney’s lack of diligence was not an exceptional circumstance, so the arbitration award was confirmed and judgment was entered in favor of the plaintiff. Special thanks to Heather Aquino for her contributions to this submission. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Don’t Leave Them Any Opening on Summary Judgment (NY) July 3, 2019 < Back Share to: The City of New York recently had a significant summary judgment motion victory reversed on appeal in the Second Department in Tyberg v City of New York. An 8-year-old infant plaintiff was walking with his mother on his way to board his school bus when he darted away from her and ran into the side of a passing vehicle. While the driver and the City were granted summary judgment because plaintiff had darted out into traffic and there was no evidence of negligence on the driver’s part, the Appellate Division reversed as to the City. Plaintiff had pleaded, as an additional theory of liability, that the City ad negligently designed the traffic control system at the subject intersection. Although the City submitted evidence it had conducted studies of the intersection in 2005 and 2007 in response to citizen complaints and determined no traffic control device was necessary at the intersection, the Appellate Division ruled this was not sufficient to meet their burden, because those studies were performed in the summer, when nearby schools were not in session. To be sure, the question of qualified immunity for a municipality arising out of civil engineering is a fairly technical one, and the Court was particularly strict in its analysis here. However, lesson is a valuable one, in that defendants must consider every possible opening the Court may take to deny summary judgment, both in drafting the motion, and in considering settling a case even after winning summary judgment while the leverage is still strong. Instead, the City will have to try to persuade a jury not to give an award to an injured child on the basis of their engineers’ byzantine explanation for why the intersection is perfectly safe. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News PA Insurance Fraud -- Beware of Allen Litt, Esq. December 12, 2007 < Back Share to: Allen Litt, Esq., a Philadelphia area personal injury lawyer was charged with 73 criminal counts arising out of hundreds of fraudulent personal injury lawsuits and claims that occurred over the past 25 years. http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1197367479119 Previous Next Contact

News Factual Pleadings In Complaint Will Not Be Dismissed Without Discovery Regarding Liability Due To Ownership Of Vehicle September 22, 2023 < Back Share to: In Sharon Holmquist v. Harry Orphanides and Rallye BMW, 2023 NY Slip Op 04660 (2d Dept. 2023), plaintiff suffered personal injuries arising from a motor vehicle accident involving a vehicle that was owned by Rallye BMW and leased to Orphanides. Defendant Rallye BMW filed a motion to dismiss under CPLR 3211(a)(1) and (7) arguing that they could not be held liable under the Graves Amendment 49 USC § 30106. Briefly, under the Graves Amendment, “the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” (Harewood v Zip Car, 189 AD3d 1192, 1193 [emphasis added]; see 49 USC § 30106[a]). Here, the Court determined the Complaint had a cause of action for negligent maintenance against Rallye BMW and Rallye failed to offer evidence that the allegation was not a fact. Any arguments that Rallye BMW’s vehicle was in good working order would be an issue to be discerned on discovery. The liberal pleadings precedent dictats a trial court will only dismiss all or part of a Compliant if there is no have no cause of action at law. A Complaint that states facts and allegations arising from those facts as stated, will likely survive any arguments for dismissal under CPLR 3211. Thanks to Ray Gonzalez for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Want HIV records? Better Show Compelling Need. (NY) June 13, 2013 < Back Share to: In the never-ending hunt to discover pertinent and potentially damaging information about a plaintiff, defendants will leave no stone unturned. Typically, to obtain a plaintiff’s medical records, the defendant must simply show that the records are material and necessary to the defense of the action. This is not a hard burden to meet. However, HIV and AIDS records are another story. In the wrongful death case of Abdur-Rahman v. Pollari, the defendants sought to access the decedent's HIV records, contending that whether the decedent had HIV or AIDS would be relevant to the plaintiff's pecuniary damages claim. Part of the problem with the defendants’ request was that it was predicated solely on the plaintiff’s invocation of Public Health Law 2785(2) in response to the defendants' discovery demands for the decedent’s prior medical records. That is, apart from plaintiff's use of section 2785(2) in response to the defendants' discovery demands, the defendants had no basis to believe that the decedent had HIV. Section 2785(2) limits the circumstances under which a court may order disclosure of HIV or AIDS records, and the only one applicable in Pollari mandates that the requesting party demonstrate a "compelling need" for the records. The Supreme Court granted the defendants’ request, but the First Department reversed. On the appeal, the defendants argued that the decedent’s HIV or AIDS records were material and necessary and that they had a compelling need for those records because they would impact plaintiff’s pecuniary damages claim, in particular, they argued that HIV or AIDS would have diminished the decedent’s quality of life and reduced his life-expectancy. However, the defendants did not provide an expert affidavit supporting these arguments. The court, in denying the defendants’ request, seized on their failure to provide an affidavit and held that without such an affidavit, it could not comply with 2785(5), which requires the court to support its findings with “scientific or medical findings...” Special thanks to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News N.J. Gov. Corzine Has Doubts About Signing New Bill Expanding Damages In Wrongful Death Cases January 9, 2008 < Back Share to: The bill would significantly expand the types of damages recoverable in wrongful death cases to include, " mental anquish, emotional pain and suffering, loss of society and loss of companionship". The bill had recently cleared both houses and was expected to be signed by Corzine. However, the Governor now has expressed concerns and may not sign it. If the bill is not signed by Tuesday , January 15 , it will die. The bill was 6 years in the making and supported by plaintiff's attorneys , but opposed by businesses, insurance companies and the medical community. http://www.njlnews.com/daily_briefing/ Previous Next Contact

News A Coworker Is Not A "Safety Device" Contemplated By NY Law (NY) September 2, 2021 < Back Share to: Noel Castillo v. TRM Contracting 626, LLC, No. 23185/2019 (Bx. Cnty. Sup. Ct. Aug. 18, 2021) is a personal injury action, wherein plaintiff allegedly sustained damages at a construction site. The instant decision resolved plaintiff’s summary judgment motion on his Labor Law § 240(1) claim. On the day of plaintiff’s accident, he was tasked with taping plastic over windows in preparation of painting. To complete his task, he used an A-frame ladder. Plaintiff testified at his deposition that the ladder was old, very unstable, and shook a lot. He also testified that the other ladders at the construction site were being used––and there were no other ladders or scaffolds or any other safety devices available to him. He claimed coworkers were also unavailable to hold the ladder. Ultimately, plaintiff injured himself when he fell from the ladder––claiming a violation of Labor Law § 240(1). Defendants opposed the motion, arguing, (1) it was premature, since large amounts of discovery remained outstanding; (2) plaintiff failed to satisfy his prima facie entitlement to summary judgment, since he did not establish certain defendants were the premises owner/construction manager; and (3) triable issues of fact existed, namely, whether plaintiff was the sole proximate cause of his injury. Ultimately, the Court granted plaintiff’s summary judgment motion. First, the Court determined plaintiff’s motion was not premature because defendants had ample opportunity to question plaintiff at his deposition (and to submit an affidavit to rebut plaintiff’s assertions, which they did). Even though third-party defendants were not deposed, the court determined it made no difference, since the third-party defendants did not oppose the motion. Second, it is well established that contractors and owners have a statutory duty to provide adequate safety devices for their workers. The failure to provide a safety device is a per se violation of §240(1), for which an owner/contractor is strictly liable. The burden of providing a safety device is squarely on contractors/owners and their agents. Here, defendants failed to rebut plaintiff’s alleged safety violations, and their pleadings did not deny they were the premises’ owner/construction manager. Third, defendants failed to raise issues of fact that plaintiff was the sole proximate cause of the accident. Even though plaintiff may have failed to ask his coworkers to hold the ladder while he worked, that did not constitute the sole proximate cause of the accident. A coworker “is not a safety device contemplated by the statute.” Noor v. City of New York, 130 A.D.3d 536 (1st Dep’t 2015). From a defense perspective – the main takeaways from Castillo are three-fold: (1) a plaintiff’s summary judgment motion may not be deemed premature if a third-party defendant has not been deposed and that party has not opposed the motion; (2) admissions in the pleadings remain critically important throughout the course of any litigation; and (3) a person does not constitute a “safety device,” within the meaning of Labor Law § 240(1). Thank you to John Amato for his contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News Oppose Everything -- or Face the Consequences (PA) October 18, 2019 < Back Share to: On October 11, 2019, the Superior Court of Pennsylvania affirmed an order denying John Mastrian’s Motion to Amend Caption and Correct Middle Initial and granted Marc A. Peoples’ Motion for Judgment on the Pleadings. On January 4, 2018, Mastrian filed a complaint against Marc A. Peoples by filing a praecipe for writ of summons and served Peoples’ wife, Susanna Peoples on January 5th, 2018. In March 2018, Mastrian filed a complaint and alleged that “Marc A. Peoples” was the owner and operator of a 2004 F150 Pickup Truck. Marc A. Peoples filed an Answer and New Matter, which contained a Notice to Plead. Peoples admitted to owning the vehicle but denied operating the vehicle at the time of the accident. The Answer stated the driver of the vehicle was “Marc W. Peoples”. Mastrian never filed a reply to the Answer and New Matter. In June 2018, Peoples filed a Motion for Judgment on the Pleadings, asserting that, because Mastrian failed to respond to the Answer and New Matter, he admitted the allegations contained therein. Peoples argued he was entitled to judgment on the pleadings because Mastrian admitted Peoples was not operating the vehicle at the time of the accident. Mastrian never filed a response to the Motion for Judgment on the Pleadings. In September 2018, Mastrian filed a Motion to Amend the Caption and Correct Middle Initial of Defendant. The trial court denied Mastrian’s Motion to Amend the Caption and granted People’s Motion for Judgment on the Pleadings. It concluded that by failing to file a response to Peoples’ Answer and New Matter, Mastrian admitted the factual averments contained in the Answer, including that Peoples was not operating the vehicle at the time of the accident. The Court also found that Mastrian was attempting to amend his caption to “add or substitute a distinct party,” which he could not do as the statute of limitations had expired. On appeal, the PA Superior Court agreed with the lower court ruling. The Court stated that Mastrian was in fact attempting to bring a new party into the lawsuit and that given the evidence available to him he should have been able to locate the correct Marc Peoples. Thus, the Court agreed that Mastrian’s Motion to Amend the Caption and Correct Middle Initial of Defendant should fail. Additionally, the Court agreed that, because Mastrian failed to reply to the Answer and New Matter, Mastrian admitted the factual averments in those pleadings. Therefore, Mastrian admitted that Peoples was not operating the vehicle at the time of the accident. Because of this fact, Mastrian could not state a negligence cause of action. Therefore, the Court affirmed the lower court’s granting of Peoples’ Motion for Judgment on the Pleadings. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Merck Settles Vioxx Claims. November 12, 2007 < Back Share to: In litigation arising out of the consumption of Vioxx (that allegedly caused either strokes or heart attacks), covering more than 47,000 plaintiffs in CA, NJ and Texas, Merck will pay $4.85 billion. To receive funds, plaintiffs must: (1) have medical proof of a heart attack or stroke injury; (2) documentation of receipt of 30+ Vioxx pills; and (3) documentation of receiving enough pills to circumstantially demonstrate ingestion of Vioxx within 14 days of their stroke or heart attack. Merck's total exposure was estimated to be more than $50 billion and it has spent more than $1.2 billion in legal fees in taking 17 cases to verdict -- 5 plaintiff verdicts and 12 defense verdicts. http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1194602640514 Previous Next Contact

News New York Court of Appeals Takes on Late Notice…Again April 6, 2016 < Back Share to: Although the issue of late notice may have calmed in recent years, cases still bubble up through the judicial system and reach the Court of Appeals. In Spoleta Const LLC v Aspen Ins UK Ltd, the Fourth Department asked the Court of Appeals to review whether an additional insured provided sufficient notice to trigger coverage. Spoleta, the general contractor for a construction project, entered into an agreement with subcontractor Hub-Langie Paving. The agreement required Hub to defend and indemnify Spoleta as an additional insured for claims of bodily injury arising out of Hub’s work. Thereafter, an employee of Hub was injured at the worksite in 2008. Spoleta was first placed on notice of the accident in December 2009 when it received a notice of intent to make a claim from the worker’s attorney. On January 27, 2010, Spoleta sent a letter to Hub providing details surrounding the claim, and advising Hub of its contractual duties to defend under the Spoleta-Hub agreement. The January letter also requested that Hub place its insurance carrier on notice of the claim. The January letter and the Spoleta-Hub contract were timely forwarded to Aspen. After the worker commenced suit against Spoleta in April 2010, Spoleta requested defense and indemnification from Aspen as an additional insured under Hub’s policy. Aspen disclaimed additional insured coverage to Spoleta on the basis of late notice. Aspen argued that Spoleta received notice of the occurrence in 2009, but did not seek coverage as an additional insured until it was served with the complaint. Aspen argued that the January letter only provided notice of a claim for contractual indemnification, and it there was no indication that Spoleta sought additional insured coverage. Spoleta commenced a declaratory judgment action against Aspen, but the complaint was dismissed by the trial court on a pre-answer motion. On appeal, the Forth Department reversed, but granted leave to appeal in light of a dissenting opinion. At issue for the Court of Appeals was whether the January letter constituted proper notice of claim for additional insured coverage. The Court of Appeals affirmed the Fourth Department, and rejected Aspen’s argument that the January letter only provided notice of a contractual indemnity claim. The Court held that the January letter simply requested defense and indemnity under the Spoleta-Hub contract without having to specifically invoke either the agreement’s additional insured or indemnification provisions. Moreover, the Court held that Aspen was made aware of how, when and where the “occurrence” took place and the nature and location of the alleged injuries. As a result, the Court found that the January letter satisfied the notice requirements of the Aspen policy, and reinstated the complaint. This case demonstrates the Court of Appeals’ reluctance to allow an insurer to escape coverage on a technicality. Aspen believed that the sole purpose of the January letter was to place it on notice that Spoleta intended to make a contractual claim against Hub, and it was unaware whether Spoleta even qualified as an additional insured. Aspen even sent a letter to Spoleta acknowledging Spoleta’s contractual indemnification claim against Hub, and argued that it may have conducted its investigation differently if it knew Spoleta sought additional insured coverage. However, a review of the oral arguments shows that several judges on the Court found this argument to be highly tenuous since Aspen was in receipt of the Spoleta-Hub agreement where Spoleta was named as an additional insured. The judges focused on the fact that compliance with notice provisions are necessary because an insurer must have the opportunity to investigate an occurrence or claim to preserve its rights. Specifically, Judge Pigott stated the improbability of an insurer receiving notice of a claim and saying, “oh, well, we're not going to go and investigate this because they're saying they're looking for indemnification as opposed to [additional insured] coverage.” The decision seems to accept the realities of construction projects; where there may be multiple parties seeking additional insured coverage, but AIs may not know the proper insurer to tender. In a perfect world, an AI would use trigger words such as “pick up the defense and indemnification” or “we are tendering a defense and indemnification to you under the policy.” However, the decision in Spoleta adopts substance over form and makes clear that such words are not always necessary. Notice provisions may be satisfied by an AI as long as the AI states that it seeks defense and indemnification, provides necessary information regarding the “occurrence,” and advises the party to place its insurer or notice. Thanks to Dan Beatty for his contribution to this post. If you have any questions about this post, please email Brian Gibbons for additional information.   Previous Next Contact

News Fraud on the Rise? NICB Says Yes. September 10, 2009 < Back Share to: According to the National Insurance Crime Bureau, fraudulent claim referrals, across all lines of business, were up for the first half of 2009 as opposed to the same period in 2008. The bad economy is suspected as the root cause. https://www.nicb.org/cps/rde/xbcr/nicb/ForeCAST_First_Half_2008_2009_Referral_Reasons_Comparison_Final.pdf http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202433687610&src=EMC-Email&et=editorial&bu=New%20Jersey%20Law%20Journal&pt=New%20Jersey%20Law%20Journal%20Daily%20News%20Alert&cn=NJLJ_Daily_News_Alert_20090910&kw=POLICYHOLDERS%20FILING%20MORE%20SUSPICIOUS%20CLAIMS%20%E2%80%94%20OR%20ARE%20THEY%3F&slreturn=1&hbxlogin=1 Previous Next Contact