News "Caution Watch Your Step" Sign Constitutes Adequate Warning of a Step November 6, 2009 < Back Share to: In Broodie v. Gibco Enters, Ltd., the plaintiff fell and injured herself when she tripped on a step separating the bar area from the restaurant area at defendant's restaurant. Plaintiff claimed that while the step itself was safe, insufficient lighting in the area created a condition which was both inherently dangerous and a hidden trap, resulting in her fall and subsequent injury. Bronx Supreme Court disagreed, and defendants were awarded Summary Judgment. Plaintiff appealed. In affirming the decision of Supreme Court, Bronx County, the Appellate Division, First Department found that while landowners owe a reasonable duty of care to invitees, summary judgment may still be appropriate when the complained-of condition is both "open and obvious." The respondents offered evidence that a recessed lighting fixture in the ceiling provided adequate light to the step area. Moreover, there were one or more black and yellow signs warning "CAUTION WATCH YOUR STEP" posted in the vicinity. The plaintiff's deposition testimony that she still did not see the step before she fell was insufficient to raise a triable issue of fact. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm Previous Next Contact

News Jury Finds Against Building Owner in 5 Pointz VARA Case November 9, 2017 < Back Share to: 5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals. The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects. But eventually Wolfkoff decided to sell the warehouse to housing developers. The artists filed suit under Visual Artists Rights Act (VARA) in Cohen v. G&M Realty. VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes. VARA grants two primary rights: The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work. The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti. Judge Frederic Block, in federal court in Brooklyn, 5 Pointz TRO decision, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute. Last month the case went to trial, and this week the jury returned its verdict, finding in favor of plaintiff. The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.” It seems they reached different decisions for different works, and awarded a variety of damages. The entire verdict should be released shortly. And there is an interesting quirk: the parties agreed the jury verdict will be "advisory" and that the Judge will render the final decision -- so we will be certain to report in the future on the final outcome. Please e-mail Mike Bono with any questions or for more information. Previous Next Contact

News New Jersey Ongoing Storm Rule Applies to Commercial Private Property July 14, 2023 < Back Share to: In Pareja v. Princeton Int’l Prop., 246 N.J. 546 (2021), the New Jersey Supreme Court adopted the “Ongoing Storm Rule” which holds that a commercial landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after cessation of the precipitation. The Supreme Court created two exceptions to the rule: (1) where a commercial landowner creates an “unusual circumstance” that increases the risk to pedestrians and invitees on their property; and 2) if the dangerous condition is pre-existing such as failure to remove or reduce snow or ice from a previous storm. The rule has been extended to snow removal contractors. In Smith v. Costco Wholesale Corp., the Appellate Division recently addressed this rule in a case where plaintiff was injured in a fall in a Costco parking lot during a snowstorm. The trial court granted defendants motion for summary judgement based on the “Ongoing Storm Rule” and plaintiff appealed. The Appellate Division affirmed, holding that the trial court correctly found that plaintiff was unable to establish that the defendants owed a duty of care because the Ongoing Storm Rule applied. Plaintiff argued that the rule did not apply to privately-owned commercial property, and that exceptions to the rule applied. However, the Court observed that if a storm is ongoing, commercial landowners do not have an absolute duty, and the “impossible burden,” to keep sidewalks or walkways on their property free from snow or ice. The Court also noted that there was no indication in Pareja that the Supreme Court intended to apply the rule only to public property, adding that the task of removing snow during an ongoing storm was just as burdensome to commercial landowners on private property as it is on public property. The Court also found that plaintiff failed to show that an exception to the rule applied. Plaintiff argued that defendants exacerbated the risk because they did not allow her to take her shopping cart to her vehicle for support and also began snow removal operations before the storm. However, the Court found the argument without merit because plaintiff failed to tell Costco employees that she intended to use the cart as a means of support, and failed to show that the snow removal was done in a manner that would have increased her risk of injury. The Smith decision is significant in that it extends the “Ongoing Storm Rule” in Pareja to commercial private property and serves as a reminder that a landowner will generally avoid liability for accidents which occur during a snow/ice storm unless one of the exceptions apply. Landowners must act to remove the snow and ice within a reasonable time after a storm or face liability for any resulting accidents. Thank you to Jordan Davis for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Owner Not Liable For Unforeseeable Criminal Acts June 19, 2012 < Back Share to: In Rodriguez v. Camaway Realty Inc., Rodriguez was allegedly attacked by an intruder while at the defendant’s building and sued Camaway under a general negligence theory. The lower court denied Camaway’s motion for summary judgment. However, the appellate court reversed based on a finding that the alleged criminal activity was unforeseeable. Both parties testified that they knew of no prior criminal activity at the premises. Rodriguez did submit an affidavit from the building superintendent who stated that he had previously been struck by a tenant’s boyfriend, but the court noted that such an attack was insufficient to establish the necessary notice of prior criminal activity. Therefore, the court held that the attack on Rodriguez was unforeseeable as a matter of law. Thanks to Sandy Debbas for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2012/2012_04410.htm Previous Next Contact

News The New Normal (NY) August 21, 2020 < Back Share to: The New York Supreme Court Commercial Division has enacted a new rule that allows attorneys to request permission to appear remotely before commercial judges based on a showing of a good cause. The new rule is a clear shift from the status quo of courts operating on an ad hoc basis filled with administrative court adjournments and trial delays. However, what separates the Commercial Division's new rules from most other courts is that it provides attorneys with more autonomy to facilitate the progress of their client’s cases on the trial calendar. It is now incumbent on courts to allow a transition to a more digital platform by allowing remote participation and paperless submissions. We can safely assume that we are in the new normal, and the idea of returning back to pre-covid days any time soon is just a pipe dream that only delays bureaucratic operations even more than they were before the pandemic. Attorneys and court staff continue to acclimate themselves to the new changes and adapt to attending hearings and conferences remotely. Thanks to James Papadakis for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Hard Driving Employer Not Liable for Exhausted Employee's Tort April 6, 2009 < Back Share to: In Riley v. Keenan, the plaintiff was injured by a sleepy, drunk driver. The plaintiff sued the driver's employer, claiming that the employer overworked the driver to the point of exhaustion and was thus responsible for the happening of the accident. The court threw out the claim, noting that the driver was not acting within the scope of his employment at the time of the accident. The court added that the driver's choice to drink was an intervening act that broke any connection between work fatigue and the accident. www.judiciary.state.nj.us/opinions/a6054-06.pdf Previous Next Contact

News Sexual Relationship With Tenant Outside the Scope of Tenant Advocate's Employment. October 11, 2011 < Back Share to: In [i]Larson v. Cooper Square Comm. Develop. Committee & Bus. Assoc., Inc.[/i], 11243/11, NYLJ 1202517524591 (Sup. Qu. Sept. 26, 2011), plaintiff claimed that she was sexually assaulted by a tenant advocate for Cooper Square Development Committee and Businessman's Association. Specifically, the plaintiff claimed that she had nonconsensual sex with the advocate on 12 occasions when he made home visits to her apartment in Cooper Square. Plaintiff asserted that Cooper Square was liable under the respondeat superior theory. The court found that the advocate's actions were outside the scope of his employment. The fact that it was part of the advocate's employment to make home visits did not bring the acts of the sexual assaults or sexual relationship into the scope of the employment. The acts were not done in furtherance of Cooper Square's business and were a departure from the acts of a tenant advocate and, thus, outside the scope of his employment. The court dismissed the negligent hiring, retention and supervision claims against Cooper Square because plaintiff could not establish that Cooper Square knew or should have known about the advocate's alleged tortious propensities. Special thanks to Cheryl Fuchs for her contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

Long Island Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – Long Island WCM established its Long Island office in 2019, with resident partner Brian Gibbons leading the team. Strategically located to serve clients throughout Nassau and Suffolk Counties, the office enhances our ability to deliver responsive, high-quality legal services across a range of practice areas—including liability defense, insurance coverage, fraud investigation, and professional liability. Our attorneys bring deep experience in both trial and appellate work. They are committed to meaningful collaboration with clients, strong courtroom advocacy, and upholding the highest standards of professional integrity. Contact Details 1 Old Country Rd # 318, Carle Place, NY 11514, USA 516 873 0011 516 873 0120 Attorneys and Professional Staff Patrick J. Argento Counsel Steven F. Goldstein Of Counsel Gina M. Arnedos Partner Taylor Mitarotonda Senior Associate Ashley R. Corcoran Associate Corey Stein Associate Brian Gibbons Partner

News Common Owners Get Hit With Joint Liability (PA) May 6, 2022 < Back Share to: In a recent case from the Eastern District of PA, Snyder v. Hunt, the court granted plaintiff’s appeal for a directed verdict after finding plaintiff established a prima facie case of premises liability against common landowners. Evidence provided multiple owners of a driveway extending between two rows of houses and enjoyed an easement over the driveway in common with other abutting owners, would all be jointly and severally liable in the absence of an agreement to the contrary. Thus, all were responsible for the maintenance and repair of that portion of the driveway abutting or located on his/her land. Mscisz v. Russell, 487A.2d 839 (Pa. Super. 1984). The plaintiff in the case tripped and fell while crossing a common driveway at an apartment complex owned by the defendants. The subsequent case was based on a negligence claim alleging that the owners have a duty to maintain the sidewalk and they breached the duty, The defect was a hole in the pavement. The driveway was a common driveway owned by several different parties and the city, and all the defendants filed cross-motions for indemnification and contribution against each other. On remand, the court held that the trial court should direct verdicts against all defendants. Additionally, because the plaintiff was not contributorily negligent, the Fair Share Act, did not shield the defendants from common law joint and several liability. This case is a good reminder to counsel to examine all cross claims against potential third parties, as well as the plaintiff if contributorily negligent. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News US Supreme Court Ruling Lowers Bar For Arbitration Waivers (NY) June 17, 2022 < Back Share to: The Supreme Court of the United States recently ruled against an employer seeking to enforce an arbitration clause in the case of Morgan v. Sundance, Inc. Plaintiff Morgan worked at a Taco Bell franchise owned by defendant and signed an agreement to arbitrate any future employment disputes. However, she later filed a class action lawsuit against the defendant for alleged overtime violations. Following the action, Sundance initially filed a motion to dismiss, which was denied by the District Court, and later participated in an unsuccessful mediation with plaintiff. Defendant did seek to enforce the arbitration agreement until eight months after the lawsuit was filed, moving to stay the lawsuit and compel arbitration. Morgan’s attorneys argued that defendant had waived its right to arbitrate by litigating for an eight-month period. The District Court denied defendant’s motion, but the Eighth Circuit reversed, holding that a party waives their right to arbitration if they (1) knew of the right to arbitrate, (2) acted inconsistently with that right, and (3) prejudiced the other party by their inconsistent actions. The Eighth Circuit found that the second and third elements were not met; particularly that Morgan was not prejudiced by the delay because no discovery was conducted, and she would not need to duplicate efforts for the arbitration. Focusing on the prejudice requirement, the Supreme Court reversed and unanimously held that the lower courts cannot require a showing of prejudice to waive arbitration rights. The Court reasoned that when courts decide waivers, they typically focus on the actions of those who control the rights and not on how those actions affect the opposing party. The Court held that the Federal Arbitration Act was designed to ensure arbitration agreements are enforced like regular contracts and that the Act did not permit, or intend to create, unique rules for waivers. The Court remanded the case back to the District Court to consider the waiver without the prejudice element. The takeaway from Morgan is that a party who delays enforcing an arbitration clause in a franchise agreement or employment contract can lose the right to arbitrate and the party arguing for a waiver may not have to show prejudice from a litigation delay. Parties seeking to arbitrate such disputes should move promptly or risk losing the right to do so. Thank you to Ryan Dame for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News PA's Highest Court Issues Major Ruling on Asbestos Causation. August 6, 2010 < Back Share to: Asbestos trials have diminished over the years as courts have applied more stringent causation tests. That might all be about to change. In the case of [i]Summers v. Certainteed Corporation, et al.[i], the Pennsylvania Supreme Court was presented with the question of whether a plaintiff was prevented in "pursuing asbestos-related causes of action...whenever breathlessness or like ailments may be attributable to both the asbestos and non-asbestors related disease(s) from which a plaintiff suffers." Overturning precedent, the Supreme Court ruled, that, so long as a plaintiff's expert could attribute "a plaintiff's maladies to both an asbestos and non-asbestors related disease", the case must survive summary judgment and thereafter be presented to a jury for a factual determination. Asbestos trials might yet again clog the state's trial calendars. http://pdf.wcmlaw.com/pdf/Summers.pdf http://pdf.wcmlaw.com/pdf/SummersCo.pdf http://pdf.wcmlaw.com/pdf/SummersDO.pdf If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Follow WCM on Twitter @WadeClarkLaw August 30, 2018 < Back Share to: Wade Clark Mulcahy LLP was founded in 1994 -- long before LinkedIn, Twitter, Facebook, or regular use of email. Some of us even recall writing term papers on typewriters, and doing legal research with -- wait for it -- books! (We weren't equipped to copy our grammar school reports from the internet. Nope -- we copied them from the encyclopedia!) As technology progresses, WCM has continued to evolve. More and more courts require mandatory e-filing, and we are shifting toward being a completely paperless law firm across our New York, New Jersey and Philadelphia offices. Moreover, our law blog, Of Interest, has been active for years, providing weekly insights on current legal issues and cases that we think appeal to insurers and other interested parties. If you enjoy our weekly blog posts, then follow us on Twitter @WadeClarkLaw, or check out our LinkedIn page, Wade Clark Mulcahy LLP. We will be featuring similar articles and posts on Twitter, and occasionally commenting on news articles that are relevant to our industry. And if you're a regular #OfInterest reader, you know that Dennis Wade comments on This and That from time to time. We'll tweet those as well. And with regard to commentary on pertinent legal issues in the news (ala, "ripped from the headlines") we will be adopting time-tested pub rules: No religion, no politics. (There are certainly other social media forums for you can find your fill on that!) Please contact Brian Gibbons by email (or while we're at it, on Twitter @bgibbons35) with any questions. Have a happy and healthy Labor Day weekend! Previous Next Contact