News Labor Law in the Time of COVID-19 (NY) April 17, 2020 < Back Share to: Will plaintiffs be able to pursue claims under the New York Labor Law if they contracted COVID-19 and developed serious complications after working at a construction job site? Although it is highly likely the plaintiff’s bar will attempt to use Labor Law §200 or §241(6) to make out violations against owners and general contractors for these types of claims, it is unclear if these attempts will ultimately be successful. With regard to Labor Law §241(6), plaintiffs will likely cite violations of the following two Industrial Code provisions: §23-1.7(g), which requires employers to test “unventilated confined areas” for dangerous air contaminants prior to permitting workers to work in that area; or §12-1.4, which bans employers from permitting workers to work in a room “in which there exist dangerous air contaminants.” However, we suspect, the majority of coronavirus Labor Law claims are likely to fall under Labor Law §200 or common law negligence claims, which would require plaintiffs to show that the owner or general contractor had notice of an unsafe condition. It is arguable whether the New York State and New York City directives to avoid non-essential work due to the coronavirus would constitute “notice of an unsafe condition.” Given the dearth of direct case law, we expect plaintiffs to turn to somewhat analogous case law involving employees infected with HIV or Swine Flu (Wiener v. City of New York, 939 N.Y.S.2d 745 (Sup. Ct. Qns. Cty. 2011)), or case law relating post 9/11 asbestos remediation work in New York City. In one such case, the First Department addressed the two Industrial Code sections discussed above and held that, where §23-1.7 was inapplicable, §12-1.4 alone was not sufficiently specific to support a cause of action under Labor Law §241(6). See Kagen v. BFT One Liberty Plaza, 62 A.D.3d 531 (1st Dep’t 2009). Thus, while it appears there are likely several arguments plaintiffs may attempt to raise in connection with the New York Labor Law, the ultimate success of these arguments may be limited, at least, for now. However, as this likely will be a highly litigated area, we will continue to keep you updated as new case law emerges. Thanks to Shira Straus for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Slip Slidin’ Away – Student’s Fracture Occurred too Quickly for School to React (NY) July 28, 2016 < Back Share to: In Elbadwi v Saugerties Cent. Sch. Dist, the Third Department recently discussed the standard of care that schools must exercise to prevent children from being injured by snow and ice. Plaintiff, a 10-year-old student attending Cahill Elementary, she slipped and fell on any icy surface in December 2012 on the school’s playground during recess. On the day of plaintiff’s injury, the school’s lunch monitor expressly told all students, including plaintiff, that they had to remain in a specific area of the blacktop during recess. According to the lunch monitor, the students were told that they could not walk onto the actual playground, as its rubber surface was icy and all the equipment was covered with snow. Less than a minute after recess began, the plaintiff claimed that, in order to avoid colliding with another classmate, she jumped onto a slide on the playground, slipped, and fractured her upper left arm. The infant plaintiff and her mother brought suit against the Cahill Elementary school district for 1) failing to maintain its property in a reasonably safe condition and 2), negligently supervising the infant plaintiff. After completing discovery, the defendant moved for summary judgment dismissing plaintiff’s complaint. The Supreme Court granted defendant’s motion as to the negligent supervision claim, but denied the portion of defendant’s motion seeking to dismiss the premises liability claim. According to the Supreme Court, there were questions of fact that precluded summary judgment regarding whether the defendant maintained the playground in a reasonably safe condition. The parties cross-appealed. The Appellate Division, Third Department, held that the complaint should have been dismissed in its entirety. In terms of plaintiff’s negligent supervision claim, the Court noted that while schools have a duty to adequately supervise children in their care, they are not “insurers of their students’ safety.” Instead, schools are charged with the same degree of care that would be exercised by a reasonably prudent parent in similar circumstances, and when a child’s accident occurs in such a short period of time that “even the most intense supervision could not have prevented it, lack of supervision is not the proximate [cause] of the injury,” and summary judgment is warranted. In the case at bar, the defendant’s expert, an experienced school administrator, argued that the ratio of students-to-monitors was sufficient to provide proper supervision and that the lunch monitor provided reasonable supervision to the plaintiff on the day in question. Even more important to the Court was the infant plaintiff’s own testimony. According to the infant plaintiff, as soon as the doors opened for recess, she and two friends ran toward the playground. When her friends turned to play kickball on the blacktop, she kept running toward the playground. Her friends called out her name, she turned, and when she “wasn’t paying attention” nearly collided with another classmate. To avoid the classmate, she swerved toward the playground equipment only to realize that she was about to trip over the slide. On instinct, she jumped up to avoid tripping, landed on the icy slide, slipped, and broke her arm. Because the plaintiff confirmed that “no amount of supervision” could have prevented her injury in such a short period, the Third Department affirmed the Supreme Court’s dismissal of plaintiff’s negligent supervision claim. With regards to plaintiff’s premises liability claim, the Third Department reversed the Supreme Court. According to the defendants’ expert, because the plaintiff was expressly instructed not to use the playground or playground equipment, the school had no duty to clear that area of snow. Further, it would have been “nearly impossible” to remove all the snow the rubberized playground surface. In response, the plaintiff failed to provide their own expert or submit any evidence sufficient to raise a question of fact as to the defendant’s obligations to remove snow from the playground. Instead, the plaintiff only provided a bare assertion that the school was required to remove snow and ice from the playground. The Court concluded that, even if plaintiff submitted sufficient evidence to raise a question of fact, the plaintiff’s injury were likely the result of her own inattentiveness, not the condition of the slide. Please note the importance of the appropriate experts in the defendants prevailing on both causes of action. Without them, this case would have found itself before a potentially sympathetic jury. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Timeliness Required Under Direct Action Statute (NY) May 27, 2016 < Back Share to: New York Insurance Law § 3420(a)(2) allows an injured party who has an unsatisfied judgment to file suit against that parties insurance company - but certain conditions still need to be met. Seville Electronics sued D.P. Holding to recover damages suffered in a fire. The parties agreed to a settlement for more than $800,000 that included a confession of judgment. In Mt. Hawley Ins. Co. v. Seville Elecs. Trading Corp., D.P. Holding's insurer, brought a declaratory judgment action seeking a declaration that it was not obligated to provide coverage and Seville filed a counterclaim pursuant to the Insurance Law to recover the amount of the unsatisfied judgment in the underlying action. Plaintiff moved for summary judgment dismissing the counterclaim, which the court denied. On appeal, the Appellate Division, 2nd Department, found that although Insurance Law § 3420 does allow for recovery of an unsatisfied judgment, it requires that the injured party demonstrate that they acted diligently in ascertaining the identity of the insurer and then notifying that insurer in an expeditious manner. Here, because Seville failed to act diligently in expeditiously notifying the insurer of the judgment, the appellate court reversed the Supreme Court’s order. Thanks to Josh Gornitsky for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Ouch! Look Out For Bedbugs! August 31, 2010 < Back Share to: Hoteliers (and their insurers) beware! Bedbugs, long believed to be eradicated, are on the comeback -- http://www.nytimes.com/2010/08/31/science/31bedbug.html?_r=1&ref=science! No one is quite certain why the resurgence has resulted, but, regardless of cause, care need to be paid as the cases and suits are hard to defend. The first difficulty with bedbug cases is that a bedbug bite brings to mind a dirty hotel or establishment. Yet cleanliness (or the lack thereof) does not automatically prevent or cause a bedbug infestation. The second problem is that an accusation of a bedbug infestation always brings bad publicity with it. So a vigorous legal defense might not always be the most prudent business strategy. The third major problem is that most medical doctors are not trained entomologists – skilled in identifying bed bug bites. So, good diagnoses – especially since evidence of the bite is usually long gone before the claim or suit arises – can be hard to come by. Finally, bed bugs can be found in many places including prosecutor’s offices --http://abovethelaw.com/2010/08/bed-bugs-v-brooklyn-d-a-s-office-round-2/ -- and second hand stores -- http://www.nbcphiladelphia.com/news/weird/Bedbugs-Living-In-Bed-Set-Eat-Woman-for-a-Year-101129784.html. So proving or eliminating causation can be a difficult and expensive undertaking. But, the bottom line is that, regardless of difficulty, bedbugs are seemingly here to stay -- http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-bedbug-conundrum,0,6868045.story. Ouch, indeed. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Second Department Clarifies the Standard for Granting Leave to Amend the Complaint < Back Share to: In its recent decision on Kyung Hee Moon v. Herzel Owadeyah , et al ., the Second Department clarified the standard for granting plaintiffs leave to amend complaints pursuant to CPLR 3025(b). See generally Kyung Hee Moon v. Herzel Owadeyah , 2024 NY Slip Op 00300 (2nd Dept. 2024). Plaintiff was allegedly injured when a scaffold he was working on collapsed at a construction project. See Moon , 2024 NY Slip Op 00300, at 1. He sued the general contractor and its principal, Herzel Owadeyah. In response to defendants’ motions for summary judgment, plaintiff cross-moved to amend to add allegations that Owadeyah should be held personally liable for piercing the corporate veil. Id . New York courts have long held that leave to amend “shall be freely given absent prejudice or surprise resulting directly from the delay unless the proposed amendment is palpably insufficient or patently devoid of merit.” Ruland v. Leibowitz , 209 A.D.3d 1051, 1052 (2nd Dept. 2022). For a plaintiff to pierce the corporate veil, they must “allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice.” East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc ., 16 N.Y.3d 775, 776 (2011). The Court determined that “[t]he proposed amendments failed to adequately allege that Owadeyah abused the privilege of doing business in the corporate form in such a manner as to cause injury to [the Plaintiff].” See Moon , 2024 NY Slip Op 00300, at 2. While granting leave would not have resulted in surprise or prejudice, the Court held that the proposed amendments were “palpably insufficient” or “patently devoid of merit.” Id . The takeaway for practitioners is simple: in assessing motions for leave to amend, appellate courts will scrutinize the facts rigorously and deny leave if it appears that the new allegations will be meritless. Moon v. Owadeyah .pdf Download PDF • 154KB Previous Next Contact

News Storm in Progress - Fall At Your Own Risk (NY) July 6, 2017 < Back Share to: Under the “Storm in Progress” doctrine, a property owner cannot be held liable for a hazardous condition created by precipitation unless “it had a reasonably sufficient time from the cessation of the precipitation to remedy the condition.” In O ’Sullivan v. 7-Eleven, Inc., a mini-market was able to convince a judge that it had taken all reasonable steps during a storm to defeat a slip and fall claim. The plaintiff was injured when she slipped and fell on an accumulation of slush in front of a counter in a 7-Eleven store, during an ongoing snowstorm. In dismissing the case, the court found that defendants were not required to provide a constant, ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during a storm. The court was persuaded by evidence that the store had placed out a rain mat and an orange cone on the floor in warning and had mopped the store during the day, including within 15 minutes before plaintiff's accident. The court found that this proof demonstrated reasonable maintenance measures to prevent such a condition. The record also showed that defendants did not have constructive notice of the specific wet condition that the plaintiff alleged was dangerous. The fact that it was snowing, with water and slush tracked in, was not sufficient notice of a particular dangerous situation, warranting more than the laying of floor mats. This case highlights the importance of making a prima facie showing of an entitlement to summary judgment as a matter of law. The defendant might not have such a favorable result without admissible proof of reasonable maintenance measures. When contemplating such a motion, a defendant must be able to call upon evidence such as employee or non-party witness testimony, and good record keeping of the accident report and maintenance logs. It is generally not enough to simply argue that there was a storm in progress, rather proof must be established that defendants did something in response and could prove that it had. Thanks to Vincent Terraski for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Experts Require Objective Evidence to Survive Net Opinion Rule (NJ) April 12, 2018 < Back Share to: Dining at the Cheesecake Factory is normally an enjoyable event. However, in Piper v. The Cheesecake Factory a plaintiff in New Jersey filed suit for personal injuries after her lunch was ruined when a server allegedly dropped a plate onto the floor. The dish shattered when it hit the floor, and the fragment allegedly struck the plaintiff in the left eye. Noami Piper filed suit against the Cheesecake Factory claiming that the clumsy server caused her to suffer a corneal abrasion. In support of her claim, the plaintiff served an expert report prepared by her treating ophthalmologist, Dr. Hitesh Patel. Dr. Patel did not find any evidence of a foreign body in the plaintiff’s eye, or a corneal abrasion. However, in his report, Dr. Patel opined that, based on his experience with other patients, a trauma may have exacerbated the plaintiff’s pre-existing conditions and prolonged her discomfort. N.J.R.E. 703 addresses the foundational requirements for expert testimony. It requires an expert to ground their opinion in facts or data derived from one of the following sources: (1) the expert's own personal observations; (2) evidence admitted at trial; or (3) evidence of "the type . . . normally relied upon by experts." However, an expert is also required to "give the why and wherefore" in support of their opinion. In other words, an opinion consisting of "bare conclusions" or speculative hypotheses "unsupported by factual evidence" is inadmissible as a net opinion. The Cheesecake Factory filed a motion for summary judgment, arguing that Dr. Patel’s report constituted an inadmissible net opinion. The court agreed, and dismissed plaintiff’s complaint. On appeal, the court upheld the decision, finding that Dr. Patel’s report was not based on objective medical evidence. Without a medical expert, the plaintiff could not satisfy her burden of proof with respect to the element of proximate cause. This case is important, since it highlights the need for a medical expert to support their conclusion with objective evidence. Thanks to Heather Aquino for her contribution for this post. Please write to Vito A. Pinto for further information.       Previous Next Contact

News What Does the Lease Say? (NY) June 18, 2020 < Back Share to: In Mallet v. City of New York, the Appellate Division, Second Department addressed whether the defendants – City of New York, New York City Economic Development Corporation, and Apple Industrial Development Corp., had a duty to repair unsafe conditions located inside a building leased to plaintiff’s employer. The Supreme Court denied the defendants’ motion for summary judgment; however, the Appellate Division reversed the Supreme Court dismissing the plaintiff’s complaint. Plaintiff was allegedly injured when he slipped on ice created by a leaky pipe inside the ceiling of a walk-in freezer in a building leased to plaintiff’s employer. Plaintiff alleged that his injuries were caused by the defendants’ negligent operation and management of the premises which the freezer was located. The Appellate Division stated that “An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct” (citations omitted). As such, the case came down to the language of the lease between the plaintiff’s employer and the defendants, which stated, “Landlord's Obligations do not include the performance nor the payment of the costs for . . . the maintenance, repair and/or replacement of Freezer System or the replacement of the Refrigeration System at any time.” As such, according to the lease, plaintiff’s employer bears the responsibility of the maintenance to the walk-freezer. This decision serves as a reminder that the lease will likely be the most important document in a case when representing a landlord. As such, always request the lease from your landlord clients. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Loose Wheel On The Shopping Cart Goes Round And Round (NY) November 19, 2021 < Back Share to: In Scalia v. King Kullen Grocery Co. Inc., 2021 NY Slip Op 06384 (2d Dept. 2021), Plaintiff was using one of King Kullen’s shopping carts and began to push it forward when one of the wobbly wheels came into contact with a crack on the sidewalk in front of the supermarket, causing her to fall and injure herself. The Second Department affirmed the trial court's denial of Kullen’s summary judgment motion, holding that plaintiff adequately identified the cause of her fall by testifying about the cracked sidewalk and the wobbly left front wheel of the shopping cart. While King Kullen did successfully prove it did not have actual notice or create the alleged conditions that caused the fall, King Kullen failed to establish it did not have constructive notice because the store manager failed to provide sufficient testimony as to when the shopping carts of the store were last inspected. Thus, the Court in finding this issue of fact, permits the matter to presented to a jury to decide. The key aspect of the Second Department’s legal reasoning on the constructive notice issue was Kullen’s failure to demonstrate when the shopping cart was last inspected. A premises owner, or in this case a tenant of the property, should not only periodically inspect their premises for dangerous conditions such as cracked or raised sidewalks, but they must also inspect the devices or instruments for public use on their premises. The inspections should be thorough, be conducted periodically, and recorded by management. Documentation of a thorough inspection of the premises can mean the difference between proving you had no constructive notice, and creating a triable issue of fact for a jury to determine. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News Keeping Track of Non-Party Witnesses (NY) December 19, 2019 < Back Share to: In a recent trial, the City of New York’s key witness was a non-party and Corporation Counsel disclosed her phone number and last-known address during the course of discovery. Despite this disclosure, the trial judge sanctioned the City, precluded the witness, and refused to make alternate arrangements for her to testify when she expressed a disinterest in testifying before a jury. The trial judge evidently also took issue with the City’s failure to produce the witness’ new address when she moved during the years when discovery was ongoing. The sanctions played a key part in a $2.4 million verdict rendered against the City. The First Department, in Onilude v. City of New York recently reversed this decision in its entirety—including other rulings—and remanded the matter for a new trial. The appellate court observed the City’s disclosure of the non-party witness’ contact information was sufficient to satisfy their burden and that pursuant to the CPLR, the City did not have control over the witness sufficient to hold the defendant responsible for determining and disclosing her new address. Defendants frequently have non-party witnesses who are necessary and knowledgeable about the facts of the case at hand. It’s unsurprising that in the course of discovery, which usually takes several years, that non-parties may move or change employment. Even employees involved with a particular transaction may leave the company for any number of reasons and become non-parties. As part of assembling and preserving the necessary evidence when an accident occurs or a suit is filed, employers and attorneys should diligently collect last-known contact information for all witnesses and non-parties in order to protect themselves from adverse rulings at the time of trial. Thanks to Nicholas Schaefer for his contribution to this post. Please e-mail Vincent F. Terrasi with any comments. Previous Next Contact

News Insurers Win Battle against Stalled Litigation in Health Insurance Fraud Action (NY) September 18, 2018 < Back Share to: In State Farm Mutual Automobile Insurance Company v Mittal, No. 16-CV-4948 (FB) (SMG) (E.D.N.Y. June 25, 2018), State Farm alleged that defendants (various health care providers) engaged in a conspiracy to defraud insurance companies by issuing fraudulent bills and medical records. After suit was filed, a dispute arose as to the order of depositions and it was ultimately decided that the insurer’s deposition would go first and defendants would follow thereafter. The insurer’s deposition went forward as scheduled but the defendants refused to move forward with their scheduled depositions. Defendants’ attorneys notified State Farm’s counsel that their clients were under investigation by the New York State Attorney General’s office and sought a stay in the matter until the investigation ran its course, and filed a motion to enforce the stay. The Court initially granted the defendants permission to stay the depositions and then issued a decision on their motion. U.S Magistrate Judge Steven M. Gold, denied defendant’s motion, finding that the circumstances weighed strongly against the issuance of a stay. The U.S. Court of Appeals for the Second Circuit laid out six factors it uses for district courts to exercise their discretion when deciding whether a related criminal action warrants issuance of a stay: 1) The extent to which the issues in the criminal case overlap with those in the civil case; 2) The status of the case, including whether the defendants have been indicted; 3) The private interests of the plaintiff’s in proceeding expeditiously weighed against the prejudice to the plaintiff’s caused by the delay; 4) The private interests of and burden on the defendants; 5) The interests of the courts; and 6) the public interest. The court decided that the first factor slightly weighed in favor of the defendants due to the overlapping of issues in the potential criminal case and the civil case. The second factor weighed “heavily against issuing a stay.” In the instant case the investigation cited by the defendants was a search warrant not an indictment and no charges had been brought against the defendants. The court also found that the third factor supported denying the stay as there was no gauging how long the criminal investigation would last and “the potential delay could be years, even before an indictment is returned.” The judge also noted that assets that might be available to satisfy a judgment would be moved or depleted while the case was stayed. The fourth factor slightly favored the stay as the Court acknowledged that the defendants’ concerns about self-incrimination during the deposition was valid however in this situation there was no activity regarding the criminal investigation for around a year and there was no reason to think that criminal prosecution was inevitable. The fifth factor supported denying the stay as the court has an interest in advancing the docket and avoiding delay. Lastly, the sixth factor of public interest strongly favored denying the stay. The court stated that this case could affect “hundreds of thousands of dollars of potentially fraudulent claims.” Moreover, the Court stated that defendants had imposed substantial costs on the insurer that undoubtedly had been passed on to consumers in the form of higher premiums. Overall, the Court found that the defendant health care providers had not met their collective burden is showing that a stay was necessary and appropriate. Thus, State Farm is now permitted to depose the defendants. One expected there may be some invocation of 5th Amendment privilege, is the criminal investigation is ongoing. Stay tuned. Thanks to Jon Avolia for his contribution to this post. Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions. Previous Next Contact

News Post Accident Lease Fails to Pierce Church's Immunity (NJ) April 29, 2016 < Back Share to: As a general rule, in New Jersey an owner that uses property strictly for religious purposes is immune from liability for personal injuries sustained while on the property. The recent decision in Rockhill v. Grace Orthodox Presbyterian Church did not depart from the general rule. The plaintiff in Rockhill claimed to have tripped and fallen on the sidewalk adjacent to the Church. In suing the Church, the plaintiff attempted to take advantage of another well established rule: commercial property owners owe a duty to the public to maintain abutting sidewalks in reasonable condition. To that end, in order to sustain her claim, the plaintiff had to prove that the Church owner used the property for some commercial benefit. One year after the plaintiff’s accident, the Church began leasing the property to a local youth group for weekly dances for a charge of $75 per week. In a desperate attempt to pierce the religious immunity, the plaintiff argued this lease was proof that the Church could have leased the property prior to her accident -- but the Court was unconvinced. In upholding summary judgment in the Church’s favor, the Court found that the mere possibility that the Church could have derived some commercial benefit had it leased out the property prior to the plaintiff’s accident was too speculative of an argument. The Court also rejected the plaintiff’s argument that the post-accident commercial activity should retroactively convert the Church to a commercial property owner. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact