News No Notice, No Negligence (NY) July 17, 2018 < Back Share to: In Bombino-Munroe v Church of St. Bernard, the Appellate Division, Second Department reviewed a Supreme Court decision concerning notice in a slip and fall on ice case where the plaintiff alleged the defendant was negligent. The plaintiff slipped and fell near the rear entrance of her child’s preschool. Specifically, the plaintiff testified that she used the front entrance to enter the building and dropped off her son at his class. She was attempting to leave the premises through the rear entrance when the slipped on ice. A lawsuit was filed in Westchester County Supreme Court. The preschool director testified that she entered the building through the rear entrance about 90 minutes prior to the incident, and she did not see any ice on the ground. The injured plaintiff testified that she did not see the ice before she fell. The defendant preschool moved for summary judgment, arguing that the lawsuit should be dismissed because the preschool did not have the requisite notice of the icy condition to be held liable in this accident. The Supreme Court denied this motion, finding that there was a triable issue of fact as to whether the defendant had constructive notice of the alleged ice condition. On appeal, the Appellate Division, Second Department, discussed the law as to notice. The law is that “a property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence. In this case, the plaintiff did allege the defendant created the icy condition; so the only way the preschool could be liable is if it had notice. After reviewing the evidence, the Appellate Division concluded that the Supreme Court erred in its decision and should have dismissed the lawsuit because the preschool did not have actual or constructive notice that there was an icy condition. In addition, the Appellate Division reaffirmed the principle that general awareness that snow or ice may be present during winter months is legally insufficient to constitute notice of the particular condition that caused the injured plaintiff's fall. Thanks to George Parpas for his contribution to this post. Please email Vincent Terrasi with any questions. Previous Next Contact

News New York Wants to Be Lloyd's (Again). October 15, 2009 < Back Share to: In the summer of 2008, we reported that New York wanted to create its own version of Lloyd's -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=171. The fall 2008 financial crisis quickly put that idea to rest. Now, however, the idea has been resurrected and there is again talk that the colonies will try to match their British brethren in coffee and alcohol consumption! http://www.businessinsurance.com/article/20091015/NEWS/910159991. Previous Next Contact

News NY Appellate Division Applies Res Ipsa Doctrine to Falling Ceiling Tile December 3, 2009 < Back Share to: In Jappa v. Starett City, Inc., the plaintiff was walking in the lobby of a building owned by the defendant when a tile fell from the ceiling and struck her in the head. The defendant moved for summary judgment on the ground that it did not have actual or constructive notice of the alleged ceiling defect. The trial court denied the defendant’s motion. The defendant appealed. The Appellate Division, Second Department, held that the defendant established that it had no actual or constructive notice of a defective condition in the ceiling. The Court also held that the plaintiff failed to raise a triable issue of fact as to the defendant’s actual or constructive notice. However, the Court affirmed the decision of the lower court. The Court stated that tiles falling from a ceiling was not an ordinary occurrence in the absence of negligence. Because the ceiling was under the defendant’s exclusive control and no negligence was attributable to the plaintiff, the Court held that there was a basis for liability under the doctrine of res ipsa loquitor, which allows a plaintiff to use circumstantial evidence to meet its burden of proof in negligence cases. The Court reasoned that the defendant failed to negate the applicability of res ipsa loquitor and denied the motion. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08787.htm Previous Next Contact

News New Jersey Anti-Discrimination Statute Trumps Private Employment Contract June 23, 2016 < Back Share to: In Rodriguez v. Raymours Furniture Company, Inc., New Jersey’s highest court weighed in the impact of New Jersey’s Law Against Discrimination (LAD) on a party’s freedom to contract. Rodriguez involved a dispute over an employment contract and the limit of time in which a claimant may pursue his or her claim. Following an offer of employment by Raymours, Rodriguez was presented with an employment contract, which included a provision that any grievance regarding Rodriguez’ employment must be brought within six months of the date that the alleged event occurred. Rodriguez signed the contract. Some months later, he was injured on the job. After surgery and physical therapy, Rodrigues returned to work. Two days later, he was terminated, purportedly due to a company-wide reduction. Seven months following his termination, Rodriguez sued his former employer, alleging violation of the LAD, claiming that his termination was discriminatory because less senior employees (perhaps more able-bodied) were not let go. The Supreme Court considered the well-settled legal principle that individuals are free to contract as they choose to determine whether Rodriguez forfeited his right to sue his employer after six months had passed since his termination. However, in this instance, the Court also focused on the intent of the statute that Rodriguez based his claim on, which included a two-year statute of limitations in which to file a claim. The LAD was enacted for the benefit of the public, the Court reasoned, to protect those workers with disabilities. In reviewing the employment contract Rodriguez signed, the Court determined that the provision limiting a claimant to a six-month window in which to pursue litigation against the employer for alleged grievances encompassed by the LAD was against public policy, and therefore unenforceable. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Second Circuit to Test the Duty to Defend under a CGL Pollution Exclusion in $9.1 Mil. Coverage Dispute February 4, 2021 < Back Share to: In Narragansett Elec. Co. v. American Home Assur., the Second Circuit will soon decide whether and to what extent an insurer is obligated to provide a defense under a commercial general liability policy for wide-spread and systematic pollution despite the presence of a broadly drafted pollution exclusion. Should the Second Circuit ratify the District Court’s rulings in favor of the insured, this could mark a drastic shift in a nationwide trend of recognizing that commercial general liability policies were not conceived or designed to cover cases of environmental pollution. The current appeal is the final hurdle in a case of industrial pollution that originated in 1930 and 1945, when Blackstone Valley Gas and Electric Company, the predecessor of the plaintiff-respondent Narrangansett Electric Company, contracted to dispose of hazardous by-products by burying it in a local lot. In 1984, a local landowner excavated a portion of the plot to build a foundation for a home, and discovered the hazardous by-products. Three years later, the State of Massachusetts sued Blackstone and other companies to recoup the costs of the remediation. In May of 1994, Narrangansett sought coverage from Century Indemnity Company (the successor to Insurance Company of North America) under a commercial general liability policy effective January 1, 1985, to January 1, 1986. Three months later, Century declined to provide a defense and reserved its right to deny coverage citing, among other things, the pollution exclusion clause in the policy that removed from coverage any claims of property damage that “arises out of…[a] discharge” of pollutants “into or upon land, the atmosphere or any water course or body of water,” unless “such discharge…is sudden and accidental.” After lengthy litigation against the government, Narrangansett was found liable for the pollution. In 2011, Narrangansett sued Century and a host of other insurers to recoup some $9.1 million in defense costs. The court held that under Massachusetts law, Century had a duty to defend because the pollution exclusion did not bar coverage as the landowner’s discovery of the toxic sludge constituted a “sudden and accidental” event. Narragansett Elec. Co. v. American Home Assur. Co., 921 F.Supp.2d 166, 181-85 (S.D.N.Y. 2013). In reaching this decision, the court observed that the complaint alleged that the exposure resulted from a residential landowner’s excavation, which constitutes a “sudden and accidental” event. On appeal, Century argues that the case arose from systematic and intentional pollution, and that the landowner’s subsequent discovery cannot constitute a separate event distinct from the actual pollution. It remains to be seen how the Second Circuit comes down. This case tests the limits of the broad duty to defend and the right to disclaim based on what would otherwise appear to be clear grounds. Should the Second Circuit affirm the lower court’s ruling, it is difficult to imagine how any act of discovering industrial pollution, no matter its source, could not be deemed a “sudden and accidental” event. This could obviate pollution exclusions that contain such language, and essentially convert a commercial general liability policy into a pollution liability policy. Thanks to Christopher Soverow for his contribution to this post.     Previous Next Contact

News Art Dealer Indicted for Sale of Fraudulent Art (NY) July 26, 2013 < Back Share to: The Knoedler Gallery story was in the news again recently, as Glafira Rosales, the dealer at the heart of the fraud, was indicted by the US Attorney's office in New York. The indictment details an extensive fraudulent scheme, involving over 60 works of art and $30 million. The indictment alleges that over a 15 year period, Rosales sold paintings to two galleries that purported to be by notable artists such as Jackson Pollock, Mark Rothko, and Willem de Kooning. Rosales claimed that she obtained the works from two anonymous collectors, one from Switzerland and the other from Spain. Instead, it is claimed that Rosales knowingly sold fraudulent works, funneling the proceeds into various bank accounts maintained by her or her boyfriend. One interesting aspect of the indictment is the extent of the tax crimes and money laundering charges. Indeed, the fact that the paintings sold were fake seems secondary. But on that issue, a recent article raises an interesting question: how will the US Attorney's office establish that the works are counterfeit? In a number of related civil suits, the plaintiffs used forensic conservator James Martin, who analyzed the type of paint used to create the works. But the civil defendants have challenged those findings, and it will be interesting to see how this issue impacts the criminal case. Unfortunately for Rosales, she will still need to face the battery of financial crimes. Please write to Mike Bono if you would like more information.     Previous Next Contact

News Breaking News: 9/11 Litigation Settlement March 12, 2010 < Back Share to: The 9/11 terrorist attacks have generated much litigation. In a just announced $657,000,000 settlement, one piece of the litigation, the MC 100 on-the-pit litigation has just settled -- pending approval from the court and the 10,000 plaintiffs. The court will now be free to turn its focus onto the MC 102 and MC 103 litigations which involve the 3,000+ plaintiffs who worked on the post 9/11 clean-up of buildings outside of the immediate WTC zone. There are a number of outstanding questions. Will the settlement be anywhere near as large? How will any future settlement be funded in those cases involving private landowners, contractors and vendors? At the least, the framework for this MC 100 settlement will shape the template used in any potential settlement of the off site (MC 102) and combination (MC 103) litigations. Stay tuned as the details and framework of the MC 100 settlement become public. For more information about this post, please contact Paul Clark at pclark@wcmlaw.com http://www.nytimes.com/2010/03/12/science/earth/12zero.html?hp Previous Next Contact

News All Bark, No Bite (NJ) August 13, 2013 < Back Share to: In Christen v. Wyka, New Jersey’s Appellate Court recently dealt with the issue of whether the owner of a barking dog that startles a passerby can be held liable for any resulting injury. Christen was walking past Wyka’s house when his barking dogs startled her. In response, she veered to her right and fell in a grassy area next to the sidewalk. Christen acknowledged that there was no defect in the sidewalk that contributed to her fall. Although Wyka’s dogs were kept in a fenced in yard with a “Beware of Dog” sign on the fence, Christen argued that Wyka was liable for her injuries because he failed to control his dogs and allowed them to jump on the fence and bark. The court disagreed, noting that the dogs did not have a violent propensity and did not make contact with Christen. The court further noted that a barking dog is one of many varieties of events that could startle a passerby, such as a shrieking toddler or sudden loud music from a home. Ultimately, the Appellate Court upheld the lower court’s decision to dismiss Christen’s complaint. Special thanks to Heather Aquino-Obregon for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News PA Revisits Successor Liability in the Case of the Flying Fire Hose. September 15, 2008 < Back Share to: It has long been assumed that a “cash only/assets only” corporate purchase absolves the purchasing company of the pre-existing liabilities of the purchased. This rule has been called into question in the case of Schmidt v. Boardman (PICS No. 08-1474 (Pa. Super. 2008). In Schmidt, Boardman was a fire truck manufacturer. As the apparent result of a design defect, a fire hose on the truck became loose during operation, flew into the air and set in motion a chain of events that led to the death of a young girl along with various other injuries to other parties. Sinar Manufacturing bought Boardman after the accident and the question that ultimately arose before the jury was – was Sinar responsible for Boardman’s liabilities? The jury answered in the affirmative (thereby holding that the product line exception applied) and Sinar appealed. On appeal, the Superior Court affirmed the jury’s finding. The Court applied the so-called Ramirez test and held that when a corporation “acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation", it is "strictly liable" for injuries caused by defective units of the same product line, even if they were manufactured and distributed before the acquisition was made. The Superior Court also affirmed its Hill ruling that incorporated a California rule and held that for the product line exception to apply, three factors must be present: (1) the preclusion of the plaintiff's remedies against the original manufacturer caused by the successor's acquisition of it; (2) the successor's ability to inherit the original manufacturer's risk-spreading role; and (3) the fairness of requiring the successor to assume responsibility for the previous corporation's defective products. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News Improvised Scaffold Falls Flat For Labor Law 240(1) Claim (NY) March 17, 2016 < Back Share to: To recover on a cause of action pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident. If a defendant is able to set forth a prima facie case for summary judgment that the violation was not a proximate cause of the accident, a plaintiff must raise a triable issue of fact by admissible evidence to preserve the allegation for trial. In Saavedra v 64 Annfield Ct. Corp., the plaintiff alleged that he sustained personal injuries when he and a coworker were installing wooden coverings to metal support columns on the ground floor of property owned by defendant 64 Annfield Court Corp. In the course of their installation, plaintiff and his coworker elected to construct and utilize a makeshift structure of wooden planks over metal rebar that was protruding from the concrete floor instead of the readily available A-frame ladder or metal scaffolding that was in the immediate vicinity of their work area. While standing on the makeshift structure, it collapsed, which caused the plaintiff to fall approximately 8 to 10 feet to the ground. The Supreme Court granted the portions of summary judgment motions by the owner and general contractor dismissing the Labor Law § 240(1) claims. The Second Department concurred in the finding that the use of the makeshift structure was the sole proximate cause of the accident precluding recovery under the statute. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Mediation Settlement Agreements: Sign Now or Pay Later (NJ) August 21, 2013 < Back Share to: We previously posted about Willingboro Mall LTD v. 240/242 Franklin Ave, and now the Supreme Court of New Jersey has weighed in with the final word. In many jurisdictions, the majority of cases in civil litigation proceed at some point to mediation, whether mandated by the court or agreed by the parties in an attempt to resolve matters more efficiently in terms of both time and money. With the assistance of an experienced non-party neutral, many cases are successfully resolved without the time and expense of a jury trial. While generally less contentious than a courtroom trial, mediation is not without its formalities. In Willingboro Mall LTD v. 240/242 Franklin Ave. LLC, the parties resolved a real estate dispute at mediation with the assistance of a retired judge. The settlement terms were negotiated and agreed upon, but not put to writing. Shortly after reaching the oral agreement, the plaintiff rejected the settlement, giving rise to the defendant’s motion to enforce the settlement and related litigation. Although the New Jersey Supreme Court agreed to enforce this specific agreement, it upheld the Appellate Division ruling that -- going forward -- matters resolved at mediation will not be enforced absent a written agreement setting forth the terms of the resolution, signed by all parties, prior to the conclusion of the mediation. In addition to this new bright line rule, the Supreme Court also took the opportunity to further refine issues of confidentiality during the mediation process. An essential tenet in the mediation process is the (statutorily required) assurance that all discussions during the mediation will remain confidential and not subject to exposure during court proceedings. In attempting to enforce the settlement, the court found that the defendant violated this privilege by disclosing the terms of the settlement. However, instead of addressing this violation, the plaintiff responded to the defendant’s revelations with additional confidential details. This, the court held, amounted to a mutual waiver of the privilege. Taken with the conduct of the parties during the mediation process, the court determined that the mutual disclosure of material discussed during the confidential mediation was not fatal to enforcement of the oral agreement. While the primary take-away from this decision is the requirement that settlements reached during mediation must be signed at the time that the agreement is reached, it is also important to bear in mind that the better response to disclosure of confidential information is a motion to strike/preclude rather than an attack with contrary confidential information. Thanks to Emily Kidder for her contribution to this post. If you would like further information, please write to Mike Bono. Previous Next Contact

News Routine Dismissal for "Routine Maintenance" Under Labor Law (NY) May 2, 2019 < Back Share to: In Dahlia v. SK Distrib, the Appellate Division, Second Department reversed a lower court ruling that denied defendant’s motion for summary judgment dismissing plaintiff’s claims under Labor Law §240 (1). Plaintiff’s employer, non-party AMX Cooling and Heating, LLC, was hired to service a heating unit for defendant. Plaintiff, an HVAC service technician, attempted to reach the ceiling heating unit by standing on a packet of shingles atop the forks of a forklift. Defendant’s employee allegedly raised the forklift while plaintiff stood on the shingles. While examining the heating unit, plaintiff slipped off the shingles, sustaining injuries. Plaintiff commenced an action against S&K and another defendant alleging violations of Labor Law §§ 200, 240 (1), and 241 as well as common law negligence. Defendant S&K moved for summary judgment dismissing the Labor Law §240(1) claim and the lower court denied the motion. S&K appealed and the Second Department reversed finding that plaintiff was not engaged in an activity covered under Labor Law §240 (1). To prevail on a cause of action under Labor Law §240(1), a plaintiff must establish that he or she was injured during the erection, demolition, repair, alteration, painting, cleaning or pointing of a building or structure. Plaintiff asserted that he was covered under the repair prong of Labor Law §240(1) while defendant asserted the repair was actually routine maintenance. In order to distinguish between the two activities, the courts look at whether the work involves replacing components due to course of normal wear and tear. Based on the deposition testimony that a belt was missing from the heating unit and belts generally should be replaced approximately once per year, the court found plaintiff’s activities to be routine maintenance and outside the scope of Labor Law §240 (1). Labor Law cases are very fact specific, but the first prong of the test is that plaintiff must be performing an enumerated, covered activity. The nuances between repair and routine maintenance determine the difference between summary judgment or strict liability for a defendant. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact