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News Better Late Than Never (PA) June 25, 2021 < Back Share to: In Fennell v. Tacu, et al., the United States District Court for the Western District of Pennsylvania examined whether the plaintiff would be allowed to amend his complaint to add additional defendants three days after the statute of limitations had run. Under the facts of the case, the plaintiff, a Pennsylvania state trooper, was injured during a traffic stop when a tractor trailer rolled backward, striking the plaintiff’s vehicle, and causing him injury. The plaintiff filed suit against the driver and his employers on a theory of negligence. The defendants answered and submitted their initial disclosures. Upon review of those disclosures and through plaintiff’s own research, plaintiff determined that the initial defendants lacked enough coverage and assets to cover plaintiff’s injuries, and that the defendants were composed of multiple shell companies that should be treated as one entity. Plaintiff then requested leave to file an amended complaint to include additional entities alleged to be liable under veil piercing theories. However, the theories of negligence and the occurrences alleged remained the same. Defendants objected, noting the statute of limitations had expired. The Court observed that the Federal Rules of Civil Procedure allow for liberal amendment of pleadings, however, where, as here, the statute of limitations had expired, the party must show that the additional parties and claims relate back to the initial pleading. Specifically, the court noted that Fed. R. Civ. P. 15(c)(1)(C), in part, provides that an amendment relates back in this scenario if the plaintiff can establish that the amended pleading relates to the same conduct described in the initial complaint, was served properly under Rule 4(m), the new defendant had notice, and that the new defendant knew or should have known but for mistaken identity, it would have been named in the initial complaint. The Court also noted that the amendment shall not result in unfair prejudice to the non-moving party. Here, the Court found the first prong of Rule 15(c)(1)(C) was met as the claims against the additional defendants arose from the same accident alleged in the initial complaint. As to the second prong, the Court determined that since the added defendants were alleged to be owned and controlled by the same individuals and entities as the initial defendants, notice could be imputed to those entities. Similarly, for the third prong, the Court found that based upon the close relationship of the additional defendants, those parties must have or should have known plaintiff would file suit against them if he had known their identities. Finally, in granting plaintiff’s request, the Court declined to find that amendment would prejudice the defendants, as defendants failed to demonstrate how the amendment would substantially prejudice their defense. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Let's Go To The Videotape-Plaintiff's Case Dismissed Because Testimony Doesn't Match The Video Camera Tape (NY) November 18, 2022 < Back Share to: In Batista v. Metropolitan Transp. Auth., 2022 NY Slip Op 06419 (1st Dept. 2022), plaintiff sued the MTA alleging that he made a left-hand turn in front of a bus, which collided with his rear bumper. Plaintiff testified that the bus was “halfway down the block when he started to make his left-hand turn.” However, plaintiff’s testimony contradicted the bus driver’s testimony and the video recording which showed the bus driver had the green light and proceeded right when plaintiff’s vehicle made the left turn. An issue of fact arises from these two testimonies. The MTA moved for summary judgment and the trial court denied it. The First Dept. Appellate Division overturned that decision, dismissing the case, finding that there could be no triable issue of fact because the bus driver’s testimony and video recording (which was properly authenticated) showed that plaintiff’s testimony was flat-out wrong. See, Carthen v. Sherman, 169 A.D.3d 416 (1st Dept. 2019). Plaintiff was negligent as a matter of law under VTL 1141, and caused the accident. See, Rohn v Aly, 167 A.D.3d 1054 (2d Dept. 2018); Ciraldo v. County of Westchester, 147 A.D.3d 813 (2d Dept. 2017). Plaintiff’s contention that issues of fact existed due to the bus driver’s comparative negligence was similarly rejected. The bus driver had only seconds to react before impact occurred, and he had a reasonable expectation that plaintiff would follow the rules of the road. There was no clarification by plaintiff as to what the bus driver could have done to avoid impact. Thus, comparative negligence could not be established because plaintiff’s speculative assertions. See, Cardona v Fiorentina, 149A.D.3d 495 (1st Dept 2017). This case is an interesting decision whereas the evidence clearly showed the accident occurred one way, and the appellate court rejected plaintiff’s false testimony and feigned comparative negligence arguments. Usually, issues of fact can be found in almost any traffic accident case because of the he said/she said fact pattern, and judges tend to leave it to a trial jury, and accordingly, appellate courts usually uphold those decisions for the same reason. However, the First Department reached the correct conclusion in here because the MTA’s testimony was patently correct, and plaintiff’s arguments were speculative and without supporting evidence. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, contact Tom Bracken. Previous Next Contact

News Heads Up: Lacrosse Player Injured During Drill (NY) March 2, 2018 < Back Share to: In Tauro v. Gait and Syracuse University, Plaintiff, a varsity womens' lacrosse player at Syracuse University, was struck in the head with a lacrosse ball thrown by her coach , allegedly negligently. Plaintiff was injured during a ground ball drill, and plaintiff said she was unprepared to receive the hard, overhand pass that struck her in the head. Defendants moved to dismiss the complaint on the grounds that a waiver signed by plaintiff established a complete defense to the allegations, and that the complaint failed to state a cause of action because plaintiff assumed the risk of injury. In the waiver, plaintiff agreed that she was “fully aware ... that ... participation [in lacrosse] involves risk of injury ....” She further acknowledged in the waiver that she accepted, and assumed all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others. The trial court denied the summary judgment motion. The Appellate Division, Fourth Department, upheld the lower court’s decision because they ruled the defendant’s actions did not fall within the assumption of the risk doctrine for sports. The court held that defendant’s actions were totally inconsistent with the drill and as such, throwing the ball toward her head was grossly negligent and extremely reckless. The conditions caused by the defendants' negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the activity. As such, the waiver signed by the plaintiff was not valid due to the gross negligence of the coach’s action. Syracuse University’s Women’s Lacrosse Team is nationally ranked. Gary Gait, the defendant, is still the coach of the team. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News An Expert Opinion Doesn't Always Defeat A Summary Judgment Motion (NJ) August 30, 2013 < Back Share to: In Muccia v. El Coronado Condo Assn, an unpublished opinion, New Jersey's Appellate Division affirmed the trial court's granting of summary judgment in a personal injury action to defendant, a resort association. Plaintiff rented a condominium in the resort and while inside her rented unit, tripped over one step leading from the living room to the foyer. At the close of discovery, defendant moved for and was granted summary judgment. Plaintiff appealed on the basis that her expert report created a triable issue of fact as to whether a hand rail was required for the step. The Appellate Division, however disagreed with plaintiff and affirmed the trial court's decision. The court highlighted that plaintiff's expert report was issued five days prior to plaintiff's deposition and months before any defense deposition. In addition, the court emphasized the assertions in defendant's expert report that the code provisions cited in plaintiff's expert report were inapplicable to the particular interior step at issue. Finally, the court noted that Bureau of Housing Inspection reports from 2004 and 2009 found the particular condo unit where plaintiff was injured to be absent of any violation (information also contained in defendant's expert report). Because plaintiff did not dispute the assertions in defendants expert report in her opposition to the summary judgment motion, the Appellate Division found that plaintiff's expert report did not raise a triable issue of fact. Special thanks to Alison Weintraub for her contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Frequent Elevator Misalignment Creates Issues of Fact (NY) October 8, 2020 < Back Share to: In Napolitano v. Jackson "78" Condominium, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment when plaintiff tripped while stepping into an elevator owned and/or managed by the defendants. The Supreme Court granted the defendants motions for summary judgment to dismiss the complaint insofar as asserted against them. Plaintiff allegedly tripped while going into the defendant’s elevator, and when she entered the elevator it was misaligned with the floor of the building’s lobby – which caused her fall. The Appellate Division stated that "A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect" (citations omitted). Although the defendant-property owners were able to establish that no complaints were ever made about the misalignment of the elevator, and that they performed routine inspections, plaintiff was able to raise a triable issue of fact whether the defendants had notice of the defective elevator. Specifically, plaintiff submitted an affidavit from another tenant in the building which asserted that she frequently observed misalignment of the elevator and that a member of the condo board acknowledged the problem in her presence. In addition, plaintiff’s expert alleged the defendants performed an unsatisfactory inspection three days before the accident. This decision serves as a reminder that property owners likely will not prevail on summary judgment if the defect at issue has frequently been an issue in the past and if they perform unsatisfactory inspections of the defect. Thanks to Corey Morgenstern for his contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Work Area By Any Other Name Would Still Be a Work Area (NY) January 26, 2017 < Back Share to: Victor Caminito was employed by a nonparty subcontractor on a 30-story building under construction that was ultimately going to be a condominium with retail space on the first floor. On the day of the accident, plaintiff spent the morning setting marble in the lobby of the building. After lunch, he was instructed by the project supervisor for the construction site, to clear out a room that was off the lobby, where many of the trades had stored their equipment and materials. In the process of removing material stored in it, plaintiff was injured when, while walking backwards with a wheelbarrow, he tripped and fell over a stack of metal studs located on the floor. In Caminito v Douglaston Dev., LLC, the plaintiff brought suit under Labor Law § 241(6) and claimed specific violations of the Industrial Code. That statute imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” contained in the New York State Industrial Code. Plaintiff's claim was predicated on Industrial Code (12 N.Y.C.R.R.) § 23-1(e)(2), which provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials”. The room where plaintiff fell was variously described as approximately 10' X 15' or 20' X 40' and had only one entrance/exit. Both plaintiff and the project supervisor testified at their depositions that the material in the room needed to be removed to complete its construction. The project supervisor testified that this room was part of the overall building construction project. Defendants moved for summary judgment to dismiss the Labor Law § 241(6) claim. Defendants argued that the area where plaintiff fell was not a “work area” but rather a storage room and thus not a work area as defined by the statute. The Court disagreed finding a question of fact as to whether the studs were scattered in plaintiff's work area. The testimony of both plaintiff and the project supervisor clearly stated that construction was going to take place in that room. Indeed, the purpose of removing the material stored in that room was to enable the construction work to take place. Although plaintiff was not actually performing his job as a marble setter at the time of the accident, under these circumstances his activities bring him within the ambit of the statute. Defendants have to be aware that scattered tools and building materials on a construction site presents a difficult fact pattern to overcome when analyzing liability under Labor Law § 241(6). Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News NY Court Holds Barricade Outside Normal Risk Of Skating August 4, 2009 < Back Share to: In Levin v. United Skates of America, Justice Kramer of Supreme Court, Kings County denied summary judgment to the owner of a skating rink in a suit brought by the parents of a child who was injured when he attempted to skate under a barricade that partially blocked an entrance to the rink. Defendants argued that the child’s injuries were the result of a risk the child assumed by skating at the rink. The court rejected this argument and held that the placement of the barricade was not a normal risk associated with skating. Indeed the court ruled that the barricade presented a “near irresistible challange” to youngsters who wanted to show off their skating prowess. The court held that questions of fact existed as to whether the child, eight years old at the time of the injury, appreciated the risk such that it could be determined that he assumed the risk of possible injury. Previous Next Contact

News Application of Revised "First Bite" Doctrine Results in Dismissal of Suit November 1, 2011 < Back Share to: In 2007, John Smith brought suit against Marijane Reilly because her dog broke free from its leash, ran into the street and collided with plaintiff Smith's bicycle. As a result of the collision, Smith was thrown over the handlebars of his bicycle and fell to the ground, causing injury. Defendant moved for summary judgment, citing that she had "no knowledge of her dog's alleged propensity to interfere with traffic." At trial, the Court denied defendant's motion, because the court ruled that the prior instances of the dog of escaping defendant's control and running towards the road constituted triable issues of material fact. The Court of Appeals disagreed and reversed, because the dog's prior actions were insufficient to raise a material issue of fact, since the dog had never specifically chased cars or bicycles before. The decision strongly suggests that in order for an owner to be liable for the actions of his/her dog, there must be evidence that the dog had a propensity to behave in a manner very similar to what is alleged in the case at bar. Here, the dog chased a bicycle, but because the dog had never specifically chased a bicycle in the street before, there was no triable issue of material fact regarding the dog's propensity. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07478.htm Previous Next Contact

News Insured’s Affiliates Not Named As An Insured? Court Says No Problem. Maybe. April 1, 2016 < Back Share to: An insurance policy might list only one named insured, and no additional insureds, but according to one recent New York Supreme Court decision, that does not necessarily mean the insured’s affiliates are not entitled to coverage. In El-Ad 250 West, LLC v. Zurich American Ins., Zurich issued a builders’ risk policy to a condominium developer. After Hurricane Sandy, the developer and its affiliated companies sought coverage under the policy for additional interest paid on construction loans and lost earnings resulting from delays in selling units in the building. The policy identified only the developer as an insured and did not name any of the affiliates as a named insured or an additional insured. In fact, the policy specifically provided that “[f]or the purpose of Delay in Completion Coverage only, the Named Insured shall be shown as below… There shall be no Additional Named Insureds, unless otherwise endorsed.” Relying on that language, and the fact that the affiliates were not listed on the policy, Zurich moved for partial summary judgment, arguing that the affiliates were not covered under the policy. The court denied Zurich’s motion. In doing so, the court relied on a long line of authority recognizing that “[t]he name of the insured in the policy is not always important if the intent to cover the risk is clear.” According to the court, if the parties intended to include the affiliates as insureds, there would be coverage, even if the affiliates were not identified in the policy. Applying that principle to the facts before it, the court held that summary judgment was inappropriate because there was evidence that “Zurich’s underwriting process appears to have accounted for the affiliates, suggesting it understood coverage might extend to them.” On the surface, it appears that the court was quick to abandon the well-established rule that extrinsic evidence is not be considered in the face of an unambiguous policy provision, but that really was not the case. In El-Ad, the court was not interpreting the scope of the covered risk, but rather the identities of the parties to whom the policy applied. El-Ad should serve as an important reminder to underwriters to understand the identities of their insureds, and whether the insured claims “affiliates” within its embrace. The good news is that El-Ad is not a broad invitation to examine extrinsic evidence to rebut unambiguous policy language. Thanks to Michael Gauvin for his contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News E-Discovery Sanctions -- Forum Shop to Avoid Them? October 13, 2010 < Back Share to: New York's state and federal courts impose sanctions for failure to preserve Electronically Stored Information (“ESI”). The state and federal courts, however, apply different standards for the sanctions imposed. By and large federal courts have hard and fast rules masked as “guidance that should not be ignored.” See Of Interest (Wade Clark Mulcahy), “Scheindlin Affirms Onerous E-Discovery Standards Applicable to Federal Litigation,” Feb. 3, 2010 (summarizing Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, No. 05 Civ. 9016 (SAS), 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)) -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=498 State courts, on the other hand, typically apply a “reasonableness standard,” and impose sanctions on a “case-by-case” basis. This discrepancy, and potential for litigants to forum shop, was the basis of the September 2010 Advisory Group to the New York State-Federal Judicial Council’s analysis and report on “Harmonizing the Pre-Litigation Obligation to Preserve Electronically Stored Information in New York State and Federal Courts.” In its report, the advisory group makes the following recommendations to New York's state and federal courts: 1. Courts should be made aware of the actual and potential inconsistencies between state and federal law addressing the pre-litigation duty to preserve ESI; 2. Courts should be reminded to effectuate consistency for attorneys and potential litigants in New York state; 3. Federal courts should consider designating the ESI sanction issue as “substantive,” giving priority to state law; 4. The Judiciary Council should disseminate the panel’s report to New York state and federal judges, the Federal Rules Committee, the New York State Office of Court Administration, and the New York State Legislature in an attempt to reconcile discrepancies. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nylj.com/nylawyer/adgifs/decisions/101210ediscoveryreport.pdf Previous Next Contact

News Knowledge Of Loss By President Imputed To Company October 29, 2009 < Back Share to: In QBE Insurance Corp. v. Gangi Contracting Corp., QBE denied coverage for an injury to a worker of the insured’s subcontractor for late notice. Notice was not provided until three years after the accident. The policy stated that knowledge of the loss by the insured’s “agent, servant of employee” is not knowledge by the company unless the insured’s Risk Manager received notice of the occurrence. The insured argued that, because its Risk Manager did not have notice of the loss, any delay was excused. The New York Appellate Division, First Department rejected this argument. The Court noted that the Mr. Gangichiodo, the insured’s president, vice-president, secretary and sole-shareholder, was aware of the accident and the severity of the injuries when the accident occurred. Mr. Gangichiodo was not the insured's “agent, servant or employee” but an executive officer of the insured. Therefore, his knowledge was imputed to the insured, and triggered the insured’s duty to notify QBE of the accident. http://www.nycourts.gov/courts/ad1/calendar/appsmots/2009/October/2009_10_29_dec.pdf If you would like more information regarding this post, please email dtavella@wcmlaw.com . Previous Next Contact

News A.D. Says Installer and Cleaner Not Responsible For Broken Handrail That Caused Accident January 16, 2008 < Back Share to: In Peters v. Trammell Crow Co., 2008 NY Slip Op 00055, AD and New York Co. Index 101297/03, Frank Peters, plaintiff and an employee of the building owner, fell on an interior set of stairs and injured himself when a handrail broke in half. The handrail had been allegedly installed 10 years before the accident by ARI Products, Inc. Trammell Crow Company, the property manager, contracted with Triangle Services, Inc., for janitorial services, pursuant to written contract. Motions for summary judgment by ARI Products, Inc., and Triangle Services, Inc., were denied by the trial court but were granted by the Appellate Division - First Department. The Appellate Court found that Triangle Services' contract to be unambiguous, only requiring it to provide cleaning and janitorial services. Additionally, none of the building engineering and maintenance personnel were under Triangle's supervision or control. As for ARI, notwithstanding the question of whether or not it installed the handrail, the Appellate Division deemed the affidavit from plaintiffs' achitectural expert to be conclusory and unable to raise a question of fact as to whether the handrail was improperly installed. Moreover, the subject handrail had been repaired twice by the building's maintenance staff after its installation and before plaintiff's accident, which the Court deemed an intervening act that allowed legal cause to be decided as a matter of law. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_00055.htm Previous Next Contact