News NY App Div Rules Gym Teacher's Instruction Sufficient to Support Summary Judgment December 31, 2009 < Back Share to: In Bramswig v. Pleasantville Middle School, a 12-year old plaintiff was injured when a classmate (and teammate) accidently struck him in the mouth with a hockey stick during a floor hockey game at Pleasantville Middle School in Westchester County. The plaintiff's first cause of action was based upon negligent instruction of the "high-sticking" rule by the gym teacher. (Presumably, there were other causes of action in this case in addition to negligent instruction, together with contributory negligence defenses, but none were addressed by the Court in this decision.) The gym teacher was deposed, and testifed that he instructed the students at the beginning of that game, and in fact at the beginning of every gym class, that the practice of "high-sticking" was prohibited in floor hockey (not to mention a double minor in the NHL if injury ensues.) Further, he testified that he defined "high sticking" as lifting one's hockey stick above his or her waist during play.The defendants moved for summary judgment on the issue of negligent instruction, and plaintiff argued that there was a triable issue of fact as to the substance of the gym teacher's warning. Specifically, the plaintiff asserted that it was unclear whether the instruction of "high-sticking" involved raising one's stick above the knees or above one's waist. The Appellate Division, Second Department found that the plaintiff's premised triable issue of fact was academic, in that regardless of the gym teacher's warning, the plaintiff was struck in the mouth by the high stick, and therefore either potential instruction was not heeded by the other student. Accordingly, the defendants' failure to instruct on the "high-sticking" rule was not a proximate cause of the plaintiff's injury, and defendants were granted summary judgment on this issue. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09603.htm Previous Next Contact

News Famous Restaurant Sues over Coronavirus Shutdown Losses March 25, 2020 < Back Share to: The Covid-19 pandemic has swept the nation and the world and in its wake is coming a huge wave of insurance related litigation. In perhaps the first lawsuit Oceana Petition of what will most likely be a major trend of filings, Cajun Conti, the parent company for the New Orleans restaurant, Oceana Grill, has sued its insurer Underwriters at Lloyds London, for insurance coverage over coronavirus related business interruption, including in “the event of the businesses closure by order of Civil Authority.” The lawsuit was filed in Louisiana state court and specifically alleges that the Lloyds “all risk” policy restaurant losses due to the state mandated shutdown of the 500 person restaurant. The lawsuit references an order by Louisiana Governor, John Edwards, in response to the Coronavirus outbreak, banning gatherings of 250 or more people. In addition, the lawsuit references a restriction by New Orleans Mayor, LaToya Cantrell, ordering all restaurants to reduce their capacity by 50%. Since the filing of the lawsuit, restrictions have become even more strict, with the Governor issuing a statewide "stay at home" order until April 12. While some insurers have taken steps to limit the scope of coverage in these sort of situations after similar outbreaks such as SARS in 2003 and ebola in 2014 through various exclusions, the complaint alleges that here, there are no such relevant exclusions. This case represents merely the first drop in what could very be a torrential downpour of similar coronavirus related insurance coverage litigation. Thanks to Andrew Debter on his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

Rightly or wrongly, hotels and stores are held to a higher standard. Judges and juries expect more – especially if the hotel or store is a name brand defendant. And this reality is compounded by the sheer breadth of claims a hotel or store can face – everything from the common slip/trip and fall all the way through to data breaches, wrongful imprisonment, discrimination and sexual assault. WCM’s attorneys have seen all of these kinds of cases and we focus on making sure that you have the information you need so you can assess the good and bad of your case and manage your risk appropriately. And if the time comes for trial, our experienced trial lawyers will tell your story to a judge or jury. Retail & Hospitality Rightly or wrongly, hotels and stores are held to a higher standard. Judges and juries expect more – especially if the hotel or store is a name brand defendant. And this reality is compounded by the sheer breadth of claims a hotel or store can face – everything from the common slip/trip and fall all the way through to data breaches, wrongful imprisonment, discrimination and sexual assault. WCM’s attorneys have seen all of these kinds of cases and we focus on making sure that you have the information you need so you can assess the good and bad of your case and manage your risk appropriately. And if the time comes for trial, our experienced trial lawyers will tell your story to a judge or jury. Practice Lead Download Download

News Claim Arising from Fall through a Hatch Door Lands Flat on its Face (NJ) May 2, 2019 < Back Share to: The New Jersey Appellate Court recently reviewed a trial court decision granting summary judgment in favor of defendants in Mastrangelo v. Khanna. Plaintiff Mastrangelo, an employee of Metuchen Cardiology, fell through an open hatch door within the office and sustained multiple injuries. Dr. Sunil Khanna, plaintiff's direct boss, was the sole owner of both Metuchen Cardiology and Khanna Realty. Khanna Realty had entered into a triple net lease of the building with Metuchen Cardiology. The lease provided that the property was “completely assigned to” Metuchen Cardiology, which was the sole tenant and occupied the entire structure. The lease gave Khanna Realty no duty or control with respect to the inspection, repair, or maintenance of the leased premises. Additionally, the lease stated that Khanna Realty is not responsible for any damage to any person arising from any defect in the building. There was a hatch in the floor of the kitchen area of the building. The hatch was covered by a door, which, when removed, provided access to the basement. Plaintiff accidentally stepped into the open hatch and fell into the basement. Although plaintiff had brought claims against Metuchen Cardiology and Dr. Khanna, those claims were dismissed leaving Khanna Realty as the only remaining defendant. Khanna Realty moved for summary judgment, arguing it had no duty to inspect, repair, or maintain the building and owed no duty to plaintiff. Plaintiff counter-argued that Dr. Khanna’s common ownership of Khanna Realty and Metuchen Cardiology negated the provisions of the lease insulating Khanna Realty from responsibility for the inspection, repair, and maintenance of the building. The trial court found that Khanna Realty and Metuchen Cardiology were distinct entities that executed a lease with an “effective delegation of duties between landlord and tenant in which the tenant retained control over the subject property.” The court ultimately concluded that Khanna Realty owed no duty to plaintiff with respect to condition or use of the hatch. The appellate court, upon review, agreed with the trial court’s decision, stating that there was a valid lease between the parties that clearly delegated the responsibilities to the tenant, thereby establishing that Khanna Realty had no duty to inspect, repair or maintain the building at which plaintiff was injured. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Judge to FDA: Get Your FSMA Regulations Done Already. July 5, 2013 < Back Share to: As we have long reported, the FDA has been quite derelict in getting the new Food Safety Modernization Act regulations in place. Deadlines have come and deadlines have gone and still no guidelines. This delay has resulted in the case of Center for Food Safety, et al. v. Margaret Hamburg, et al., USDC, NDCA. There’s a history of decisions in the case that make clear the Court’s frustration with the FDA and that frustration has now boiled over. In a recent decision, the Court has ordered the FDA to publish all proposed regulations by November 30, 2013, with the comment period to end by March 31, 2014, and the final regulations to be published by June 30, 2015. We’ll see if a court order compels action where bureaucratic momentum did not. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ Supreme Court Clarifies Public Entity Immunity Standard February 4, 2009 < Back Share to: In its recent decision in Ogborne v. Mercer Cemetery Crop., 2009 WL 196047 (2009), the New Jersey Supreme Court concluded that when the facts are reasonably debatable as to whether the employee’s actions or the condition of the property caused plaintiff’s accident, then the more stringent “palpably unreasonable” standard applies. Pursuant to the New Jersey Tort Claims Act, plaintiffs suing a public entity for a dangerous condition on its property must prove that the entity acted “palpably unreasonably” in not protecting against the dangerous property condition. By contrast, when a public employee’s actions cause plaintiff’s injury, the plaintiff need only prove ordinary negligence. In Ogborne, the plaintiff was accidentally locked inside a cemetery when a cemetery employee closed the entrance gates early. Thus, she was forced to climb a brick wall in order to exit, fracturing her tibia in the process. In keeping with the broad immunity provided in the Tort Claims Act, the Supreme Court determined that the higher “palpably unreasonable” standard should apply in determining the public entity’s liability. Thanks to Claudi Condruz for her contribution to this post. http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf Previous Next Contact

News Does COVID-19 Mean Quarantine? (PA) June 10, 2021 < Back Share to: In a recent order from the Eastern District of Pennsylvania, the court addressed the first of what is sure to be many cases stemming from cancellations of vacations and other travel due to COVID-19. This case was a putative class action filed on behalf of individuals who cancelled travel due to the coronavirus pandemic and whose claims for travel insurance claims were later denied by the defendant-insurer. The defendant-insurer moved to dismiss, and the court subsequently denied the motion on all grounds save for one breach of contract claim. Ultimately, the court decided that there were too many issues of fact to decide the case so prematurely, one such issue being the definition of the word “quarantine”. The plaintiff at issue had purchased a travel insurance policy from the defendant for a European adventure set to take place in late March 2020. On March 7, the plaintiff cancelled the trip due to COVID-19 and filed a claim with the defendant on March 12, which was denied. The plaintiff argued the denial was incorrect, as the policy language guaranteed up to full reimbursement for any covered reason, one of which was “being…quarantined.” Quarantine was not defined in the policy. The defendant-insurer argued that the term “quarantine,” based on the common meaning of the term, by no means applied to the large scale stay at home orders that were enacted to stop the spread of COVID-19. However, the court, recognizing the long-standing principle that an undefined, ambiguous term must be construed in favor of the insured, held there was still a question of fact to be addressed – particularly when considering this case dealt with lockdown procedures in the plaintiffs’ home states and cities as well as in all the destinations through and to which they were traveling. Going forward, it will be interesting to keep an eye on this action, as the plaintiffs all had different situations leading up to their travel claims, however, the one common denominator was COVID-19. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News WCM Victorious on Statute of Repose in PA Construction Defect Lawsuit. July 17, 2020 < Back Share to: WCM Partner Bob Cosgrove and Philadelphia associate Zhanna Dubinsky won a motion for judgment on the pleadings in the Pennsylvania Court of Common Pleas, Chester County. In John Adams, et al. v. Wilkinson Enterprises, Inc., et al., the plaintiffs were the owners of luxury homes in the Chester County, Pennsylvania area who had purchased their new homes in 2003 and 2004. The plaintiffs alleged that after they assumed residency, their homes began to suffer from a myriad of construction defect problems. Our client was one of the contractors that had helped build the houses. Notwithstanding their claimed knowledge of the defects, plaintiffs did not commence their actions until December of 2016. We moved for judgment on the pleadings and argued that the lawsuit was untimely and a violation of the statute of repose. Pennsylvania’s statute of repose abolishes and eliminates causes of action that occur twelve years after completion of construction of an improvement to real property. The Honorable Edward Griffith agreed and entered judgment on the pleadings dismissing all claims against our client. For more information about this post, please contact rcosgrove@wcmlaw.com . Previous Next Contact

News A Stairway May Constitute a Safety Device Under NY's Labor Law September 23, 2010 < Back Share to: In Ramirez v. Shoats, 2010 N.Y. Slip Op 06550, plaintiff was injured when a piece of corrugated metal covering an unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall from the second floor to the basement level of a building under construction. Plaintiff sought relief under Labor Law § 240(1), which provides that the owner of the premises can be held liable for failure to provide adequate safety devices for workers. The issue at hand was whether a permanent, yet unfinished stairway can constitute a safety device under the statute. In a 3-2 split decision, the Court held that the stairway was the plaintiff’s sole means of access to and from his work area and thus was a safety device within the meaning of the statute. The dissenting opinion noted that temporary ladders were on site which provided alternative means of descent and, in any event, prior case law in New York has determined that “under no construction of the statute could a permanently installed stairway, used by the plaintiff as a place of passage, be deemed to be a scaffold, hoist, stay, ladder, sling, hanger, block, pulley, brace, iron or rope.” Ryan v. Moerse Diesel, Inc., 98 A.D. 615 (1983). Unfortunately it seems that New York courts, yet again, have extended the grasp of the Labor Law. http://www.nycourts.gov/reporter/3dseries/2010/2010_06550.htm Thanks to Chris O'Leary for his contribution to this post. If you would like more information about this case or WCM's Labor Law practice, please contact mbono@wcmlaw.com Previous Next Contact

News WCM’s 2020 Year in Review December 30, 2020 < Back Share to: At this point, more than enough has been written about 2020. COVID-19 changed the world, and how we all view it. When we left our physical offices in mid-March – and told everyone we’d see them the Monday after Easter – the prospect of working remotely for a month seemed like an eternity. Nearly ten months later, and well, here we are. Despite the pandemic, Wade Clark Mulcahy LLP has continued to grow in 2020, as Bob Cosgrove and Mike Bono took the reins of WCM’s Management Committee. This year, Tom Decker, Bruce Magaw, Tom Bracken joined WCM as partners, while Vivian Turetsky was promoted to partner. Jennifer Seme, Debra Kuser and James Scott, joined WCM as counsel, and Paul Vitale and Matt Care, who have been with WCM for a few years, were promoted to the rank of counsel. In addition, with WCM having a longstanding relationship with the London insurance marketplace, WCM opened its fifth office location in 2020 – in London, England, with Jeff Weston as our London market representative. As you might expect, we do not have any notable trial verdicts to report this year, because quite literally, there were no verdicts this year after mid-March in much of the United States. Social distancing guidelines and jury duty in major cities do not exactly mesh, and this dynamic essentially stopped jury trials altogether in New York, Philadelphia, and much of New Jersey. We anticipate jury trials will resume in late 2021, with a long line of cases ready to be tried – and WCM will be ready to get back into the courtroom. But even without jury trials or in-person litigation, WCM has continued to practice effectively, in ways we had not envisioned before. In March 2020, very few of us had ever heard of Zoom, Webex, Microsoft Teams, Skype for Business, or the various other platforms that allow for video communication. We now use these platforms regularly, and in fact, have conducted dozens, if not hundreds, of depositions, examinations under oath, mediations, motion arguments and conferences, and client training sessions -- all remotely. Perception of remote court proceedings has evolved from “science fiction” in March to commonplace just months later. Remote depositions, in particular, have been a much more effective fact-finding device than we had anticipated. And while we are all eager to get back to in-person legal practice, we think a percentage of remote proceedings – particularly remote mediations – are here to stay. As members of the legal community, we are fortunate that this pandemic occurred in 2020, as opposed to, say, 10 years ago. Remote capabilities would have been completely inadequate; many firms would not have survived. WCM has not only survived, but has grown in 2020, which is a testament to sound planning, hard work, and tireless efforts by our IT director Eric Engelhardt and our operations attorney Chelsea Rendelman. We also owe Brian Gibbons a special thanks for doing all that he can not only to pen holiday greetings, but also for keeping our social media presence vibrant. Certainly, necessity is still the mother of invention. As we enter 2021, the pandemic is by no means over; the winter months ahead require that we abide by CDC guidelines to mitigate risk and hopefully end the pandemic in the coming months. The medical professional community and essential workers deserve our unending gratitude for helping the world continue to function throughout these last months. Despite the present risk, there is (finally) reason for optimism. The CDC has approved vaccines, and distribution is underway. The close of this pandemic is now in sight. And so, on behalf of all of us at WCM, here’s to a brighter and better 2021, when we hope to see many of you in person, get together for lunch, and who knows -- maybe even shake hands! With warm wishes for a healthy (and vaccinated) New Year, Mike and Bob Previous Next Contact

News 2019: WCM's Year in Review December 27, 2019 < Back Share to: To paraphrase Mark Twain, no one really knows what a perfect partnership is until they have been married a quarter of a century. Way back in the summer of 1994, Dennis, Paul and John decided to band together and take a leap of faith into the unknown by creating WCM. Over the past 25 years, all of us at WCM have benefitted from their guidance and mentorship and learned from their intelligence and integrity. As many of you who are reading this e-mail have been with us for a good portion of these many years, we think that you share our feelings. Dennis has always been the visionary, Paul the technical perfectionist and John the man who opened and closed the store. It has been a perfect partnership and we thank all of them for all that they have done in making WCM what it is today. But 2019 marks the end of an era for WCM and all of us are excited about the opportunities that lie ahead. As you all know, John retired in the not so distant past and enjoys splitting his time between woods and beach. Paul has decided that, he will be doing the same – although we think there will be more beach and less woods. Paul will fully retire from his work at WCM during 2020. Dennis will continue to focus on what he loves best – meeting with all of you and actually practicing law. With that as background, Partners Bob Cosgrove (who has been with WCM for 17 years) and Mike Bono (who has been with WCM for 16 years) have taken the helm of WCM. Bob and Mike will both be continuing in their full-time service of all of you while assuming management roles at the firm as co-chairs of the firm’s Management Committee. If you ever have any questions or concerns about what WCM can do for you, please reach out to either of them. Both of them hope that sometime in 2045, the next generation of WCM will talk about their perfect partnership as WCM then moves into its golden jubilee. 2019 marked a year of other exciting developments. First, we were pleased to welcome to the Partnership Georgia Coats, Colleen Hayes, Michael Gauvin and Heather Aquino. Colleen and Mike look forward to serving your coverage needs while Georgia and Heather will continue their dogged defense of your liability exposures. Vivian Turetsky, who focuses on coverage work, was also promoted to Counsel. Second, in February, WCM opened its fourth office location, on Long Island, allowing us to better serve Long Island clients and business partners. Brian Gibbons, who has been with WCM since 2009, is WCM’s resident partner at that office. Third, in June, Bob Cosgrove finished up his service as the President of the Philadelphia Association of Defense Counsel, the nation’s oldest defense bar organization. Fourth, at the Defense Research Institute’s annual meeting, Colleen Hayes was honored as an outstanding committee chair. Colleen received recognition for her work with the DRI’s Young Lawyers Social Media subcommittee, a group dedicated to promoting its members professional achievements and accomplishments, as well as serving as a platform to engage all members of the defense bar. Congratulations to all on their well-deserved promotions and achievements. On the legal front, WCM continued to demonstrate what our website has long advertised — results. Some of our most notable achievements include the following. First, WCM Partners Dennis Wade and Michael Bono, along with Vivian Turetsky and Douglass Giombarrese, were awarded summary judgment in a $4.5 million coverage action in the SDNY, Phillip Michael Scott v. AIG Property Casualty Company and Great Northern Ins. Co. Scott filed suit alleging that the insurers wrongfully denied his homeowner’s claim following a 2015 incendiary fire at the Insured’s Westchester, New York home. Despite having asserted in a 2013 bankruptcy filing that his monthly income was zero and that he owned virtually nothing, Scott’s sworn statement in proof of loss after the fire alleged a total loss of his residence and over $1.25 million in personal content damages. At the EUOs, Scott made blatantly contradictory statements regarding his finances and the ownership and acquisition of his personal property. Further, he denied being aware that that he obtained an AIG policy on this home, despite clear evidence that he had procured the policy and, in fact, made several requests to change the inception date. Judge Gregory Woods upheld the insurers’ disclaimers and awarded summary judgement on the basis of the Insured’s “fraud and concealment,” as well as the Insured’s failure to cooperate during the claim investigation, focusing on lies regarding the personal property inside the home at the time of the fire and the placement of the insurance itself. Citing significant portions of Scott’s sworn testimony, the District Court held that Scott’s statements were “false, willfully made, and material to the insurers’ investigation of the claims.” As to the defense of non-cooperation, the District Court parsed Scott’s EUO testimony and specifically found that his evasions and false promises of future cooperation did not satisfy the duty to cooperate under the contract of insurance. While the Court recognized that the bar for granting summary judgment in a fraud case was indeed a “high one,” the Court found that the insurers had met that high standard and found in AIG’s favor. Second, in April, Georgia Coats obtained a defense verdict in a traumatic brain injury case venued in Bronx County. The plaintiff, a customer, was struck in the head by a falling awning outside of a restaurant. Our client had installed the awning and had failed to provide the restaurant with written instructions warning the restaurant to shut the awning in strong winds. At trial, we argued that the lack of written warnings was not the cause of the plaintiff’s accident and that the verbal warnings our client provided upon installation were sufficient. The jury awarded our client a defense verdict, finding that the lack of written instructions was not the cause of the accident, and placed the full $2.7 million verdict on the restaurant, which, per our argument, failed to use common sense on a windy day. Third, in June, WCM obtained a defense verdict in a Labor Law trial in June in the case of France v. Munro General Construction, Inc. et. al. Paul Vitale acted as lead counsel. The plaintiff alleged a slip and fall on a stairwell, allegedly due to our client’s drywall work, and demanded $5 million to resolve. The defense argued plaintiff fabricated the cause of his fall as the drywall dust could not have traveled through the construction site, through a hallway and up the stairs to the landing. The jury found the defense position persuasive and rendered a defense verdict. Fourth, in July, Michael Bono, Vivian Turetsky and Doug Giombarrese scored a trial victory on behalf of their homeowner client, who faced upwards of $10 million in damages as a result faulty construction on his townhouse which damaged his neighbor’s property. As a result of the damage, the client had previously been adjudged to have breached an agreement with his neighbor, and WCM was retained as trial counsel to show that the fault lay at the hands of the general contractor and subcontractor-excavator. After a month’s long trial during which the contractors argued they were not at fault, the jury found them to both be liable for 100% the damages. Having established they were negligent, WCM now seeks full indemnification on behalf of its client in post-trial briefing. We look forward to continuing to serve our friends and clients in 2020 and wish all of you a happy holiday season and healthy and prosperous new year. With warmest wishes, Mike and Bob Previous Next Contact

News The Big Legal Problem in NYC? Bad Trees. May 15, 2012 < Back Share to: When you think of New York City, capitol of the universe, you probably think of such things as skyscrapers, crowds, hot dogs and the Yankees. But what you probably don’t think of is trees. Yet it is trees that are causing an increasing number of legal headaches for the Big Apple. NYC has approximately 2.5 million trees in the City’s parks and streets and there are plans to plant 1 million more over the next few years. The problem is that, as a result of poor training and a lack of budget funds, the trees are not being properly monitored for damage/disease or other problems. Thus, over the last 5 years, 49 people have been injured and 2 people have been killed by falling trees. Certainly, these are not enormous numbers, but when the NYT runs a front page essay on the problem (and cites trial and deposition testimony) you can bet that the plaintiffs bar is paying attention. You can also surely bet that the Mayor’s office is paying attention – might a change to tree responsibility be around the corner (similar to the sidewalk liability changes of 2003)? Stay tuned to find out. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact