Scott A. Lazar Partner New Jersey Slazar@wcmlaw.com 862 294 3647 Professional Experience Scott A. Lazar is a Partner in the New Jersey office at Wade Clark Mulcahy LLP, with more than four decades of substantial experience in insurance law, employment and labor law, general liability, products liability, premises liability, tort liability, and construction litigation throughout New Jersey and New York. His practices vary across multiple industries including transportation, construction, funeral services, and consumer products, representing insurers, self-insured entities, transportation companies, construction businesses, consumer product companies, automotive repair facilities, and automobile dealers in complex, high-exposure litigation. As an attorney with extensive legal expertise in insurance coverage analysis and litigation, Scott has authored numerous coverage opinions and handled matters involving coverage disputes, first-party property claims, and indemnification agreements. Throughout his experience, Scott defended lessors of heavy equipment and secured a summary judgement in the Superior Court of Union County, New Jersey, establishing a landlord’s responsibility to defend and indemnify a commercial lease. Additionally, he obtained a summary judgement in the Supreme Court, Kings County, New York, resulting in a finding of no liability in a premises liability action. In his employment law practice, Scott represents clients in employment discrimination and wrongful termination matters and advises automotive repair entities in diverse legal matters, including administrative hearings, regulatory proceedings, employment disputes, and tort actions. He also counsels automobile dealers and self-insured entities regarding warranty claims and consumer complaints and actively defends interstate trucking entities in tort litigation. His products liability experience includes litigation involving heavy machinery, such as cranes and forklifts, propane systems, and alleged adulterated food products. He shares extensive experience defending numerous wrongful death and catastrophic injury matters, including a triple wrongful death action argued in the New York Supreme Court and claims involving second-and-third-degree burns, traumatic amputations, and E. coli 0157:H7 exposure. As a frequent speaker on negligence, ethics, insurance and employment issues, Scott lectures for clients and industry conventions, including the Crane Certification Association of America (CCM). He currently serves as an appointed arbitrator in the United State District Court for the District of New Jersey. Prior to joining WCM, Scott was a partner in a regional litigation firm handling complex matters in insurance defense and general liability. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education B.A., Political Science, University of Pennsylvania, cum laude J.D., Boston University School of Law Bar Admissions New Jersey New York Court Admissions United States District Court for the District of New Jersey United States District Court for the Eastern District of New York United States District Court for the Southern District of New York United Staes District Court for the Northern District of New York United States District Court for the Middle District of Alabama United States Court of Appeals for the Third Circuit United States Court of Appeals for the Eleventh Circuit Supreme Court of the United States

News Pennsylvania Superior Court Attempts To Interpret Tincher May 13, 2021 < Back Share to: The Pennsylvania Superior Court, in interpreting Tincher, recently confirmed that a plaintiff may simultaneously proceed in alleging a strict products liability defective design claim and a negligent design cause of action. Thus, the legal landscape as to what exactly Tincher means in any practical sense continues to be muddied. In the wake of Tincher, which mixed negligence principles into strict liability claims, trial courts have been plagued with questions whether negligent design and strict product liability defective design are one and the same. The Pennsylvania Superior Court, recently confronted with this thorny issue, held that a plaintiff may proceed with both claims, as Tincher did not entirely eliminate the distinction between negligence and strict liability. Specifically, in Timmonds v. AGCO Corp, plaintiff essentially hotwired a cart and suffered injuries when the cart ran over his leg. At trial, plaintiff’s expert failed to set forth the requisite standard of care that the manufacturer allegedly failed to conform to; as such, the trial court granted a directed verdict, as plaintiff could not show that the defendant “breached any technical, manufacturing, or industry standards.” The product liability allegation reached a verdict for the defendant. At the appellate level, plaintiff argued that the court improperly issued a directed verdict on the negligence claim. Similarly, at the appellate level, the defendant argued that no cause of action for negligent design could exist in the wake of Tincher and the decision of the jury finding the product was not defective. The appellate court indicated that the negligent design and strict liability design claims were not identical, and that plaintiff could simultaneously proceed with both, holding that although Tincher created a composite Consumer Expectations Test and Risk Utility Test, the combination test was still different than a negligent design claim. Nonetheless, the appellate court upheld the dismissal of the negligent design claim, holding that plaintiff waived the claim in any event by failure to appropriately preserve objections and brief the issue. This case continues to show the difficulty that litigants, attorneys, and the courts face when trying to distill Tincher into practical reality. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Absolute Liability of NY Labor Law for Owners and General Contractors Only March 21, 2013 < Back Share to: In Giovaniello v. E.W. Howell, Co., LLC, the Second Department provided instruction as to those parties that can be held liable under the dreaded New York Labor Law. Under Labor Law 240 and 241(6), owners, general contractors, and their agents are absolutely liable for violations of those statutes. Prime contractors and subcontractors, on the other hand, will only be liable in limited circumstances. The Giovaniello court clarified those circumstances. Fratello, one of many prime contractors on the site, moved to dismiss plaintiff’s Labor law 240 and 241(6) causes of action, because it was it did not qualify as an owner, general contractor, or agent. Fratello argued that, as a prima contractor which did not have a contract with plaintiff’s employer, it could only be liable if he was delegated the authority to oversee and control the activities of the injured worker. The Supreme Court and Second Department agreed with Fratello and dismissed the complaint against it. Two subcontractors also moved for summary judgment dismissing the Labor Law claims, including the § 200 claim. In granting their motions, the court found that liability under §§ 200, 240, and 241(6) cannot be assessed against a subcontractor who did not control the work that caused the plaintiff’s accident. The court’s holding on Labor Law § 200 as it pertained to the subcontractors is important. Often times, counsel representing subcontractors treat the § 200 and common-law negligence claim identically. They conflate the § 200 and common-law negligence claims because these two claims, as applied to general contractors and owners, are the same. But when it comes to subcontractors, they are not, as demonstrated by Giovaniello. Thus, to obtain dismissal of a § 200 claim against a subcontractor, it must simply demonstrate that it did not control the injury-producing work. Special thanks to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Obscured Open and Obvious Condition May Be a Trap for the Unwary (NY) November 8, 2018 < Back Share to: Plaintiff tripped and fell on a “hump” on a baseball field in the Town of Smithtown and injured himself as he was attempting to move through the entrance of the field. This “hump” was caused by the Town’s installation of a drain, which was covered with asphalt. This hump extended to the area between the players' benches and the entrance to the field on the third base side. Plaintiff sued the Town of Smithtown in Suffolk County Supreme Court. Smithtown moved for summary judgment, contending that the condition of the hump was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiff appealed. In Dillon v Town of Smithtown, the Appellate Division confirmed the duty of landowner is to maintain its premises in a reasonably safe condition. And the Appellate Division confirmed that an exception to this duty exists when there is an open and obvious, and not inherently dangerous condition. Further expanding on the “open and obvious” principle, the Appellate Division held that a condition that is ordinarily apparent to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted. Applying that distinction to the facts of this case, the appellate court found that the Town failed to prove that the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident. In reversing the Supreme Court’s summary judgment decision the court highlighted plaintiff's testimony that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump. The case highlights the reality that certain defenses, such as the open and obvious defense and other issues of fact need to be resolved by appellate courts, rather than the trial courts. Litigators presented with such issues should be prepared at an early stage to be mindful of the possibility of appellate practice. Thanks to George Parpas for his contribution to this post. Previous Next Contact

News Second Department Clarifies Distinction Between Administrative And Legislative Actions (NY) August 18, 2023 < Back Share to: In In the Matter of Lishan Aklog v. Town of Harrison, a four-judge panel at the Second Department ended a town drama predating the Covid-19 Pandemic, and in so doing, clarified the sometimes-nuanced distinction between legislative and administrative actions by a township. See Aklog v. Harrison, N.Y.S.3d (2023). The Respondent, Anthony Robinson, has since 2012 served as the Commissioner of Public Works in the Town of Harrison in Westchester County. At a 2020 Town Board meeting, members expressed concerns about Robinson’s primary residency outside Harrison. Fueled by these concerns, the Board voted not to reappoint Robinson to his position, and instead, to appoint an acting commissioner. Importantly, the Board concretized its goals by adopting two resolutions. But to the Board’s chagrin, the resolutions were never implemented as Counsel for Harrison advised, on bases unexplored by the Court, of legal consequences of summarily removing Robinson from his post. Thus, Robinson has continued serving as Commissioner despite the figurative coup d'état attempt. But the Petitioner refused to accept the status quo, and filed suit in the Supreme Court, Westchester County. Petitioner initiated the action pursuant to CPLR § 78, seeking declaratory relief that would remove Robinson from his post and install the acting commissioner. The Court was persuaded by the argument of Robinson’s Counsel that the Petitioner lacked standing, and Petitioner appealed. New York courts have long been guided by the rule that “citizen taxpayers have standing to ‘challenge important governmental actions’ when the failure to accord standing would ‘erect an impenetrable barrier to any judicial scrutiny of legislative action’” See Matter of Colella v. Bd of Assessors of Nassau Cty., 95 NY2d 401 (Ct. of Appeal 2000). In the instant matter, the Court needed to examine whether town board resolutions constituted administrative or legislative action and deemed them the former. The Court relied on Matter of Clark v. Town Bd. Of Town of Clarkstown and held that Robinson’s appointment was a matter of administrative, rather than legislative, determination. See Clark v. Clarkstown, 28 A.D.3d 553 (2nd Dept. 2006). Much like Clark, which concerned the appointment of a local police chief, Aklog concerned the appointment of a local official. The Petitioner also failed to demonstrate that Robinson’s continuation as Commissioner was a matter “imperiling the public interest,” as required by General Municipal Law § 51. In Aklog, the Second Department did not outline an ironclad or universal principle that town board resolutions are not legislative in nature. But the key trend within the Department is towards such resolutions constituting administrative action. Thanks to Mark Kindschuh for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Beware: Basketball Is A Contact Sport (NY) November 16, 2017 < Back Share to: A high school student who opted to play basketball in gym class voluntarily engaged in an activity with awareness of the risks inherent to playing, including the possibility of collision or contact with another participant. This voluntary assumption of the risk barred a suit for negligence against his high school. In Hanson v Sewanhaka Central High School District, the plaintiff alleged that he was injured during a basketball game in gym class after he was kicked in the leg by a fellow student. The defendant school district and defendant student both moved for summary judgment, arguing the doctrine of primary assumption of risk, and both motions were granted by the lower court. The plaintiff appealed. Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation". By freely assuming these risks, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from them, if the risks are fully comprehended or perfectly obvious. However, a plaintiff cannot assume the risks of reckless or intentional conduct, or concealed or unreasonably increased risks. The Appellate Division, Second Department, found that the plaintiff opted to play basketball from a number of options. He was aware of the risks inherent to playing, including potential physical contact with other students. Although the plaintiff testified at a hearing on the motion that the other student purposely kicked him, this was neither pled in his complaint nor mentioned in his bill of particulars. The court disregarded this testimony as a plaintiff cannot raise a new or materially different theory of recovery for the first time in opposition to a motion for summary judgment. The plaintiff also sought to defeat summary judgment by application of the inherent compulsion doctrine. However, this doctrine precludes an assumption of the risk defense where the plaintiff’s conduct is not voluntary due to the compulsion of a superior. In essence, plaintiff alleged that the School forced him to participate in basketball. However, plaintiff’s own testimony demonstrated that he elected to play basketball over a variety of other gym activities. The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the moving defendants. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News No Written Notice = No Dice for Plaintiffs in NYC (NY) August 23, 2018 < Back Share to: It has long been held pursuant to the New York City Administrative Code that the City of New York cannot be found liable for accidents occurring within it due to dangerous conditions unless the City had prior written notice of the existence of the condition. The exceptions to this being where the City created a defect or the defect was caused by special use of that benefited the City. On August 22, 2018, the Appellate Division, Second Department upheld this stringent standard to obtain a recovery from the City for potholes within the five boroughs. In Allen v. City, plaintiff was injured when he fell off of his bike after riding over a pothole in a City owned and operate street. Defendant City moved for summary judgment based on the fact that there was no prior written notice of the condition and none of the exceptions applied. The lower Court denied the City’s motion and found that a reference to a raised or elevated area on a “Big Apple Map,” constitutes prior written notice. The Second Department unanimously reversed the lower Court’s decision and found that the City showed that it did not have prior written notice and that a “Big Apple Map” is insufficient to impose notice onto the City. In Budoff v. City, plaintiff was injured when he fell off of his bike due to a pothole present in a designated bike lane on a City owned and operated street in Brooklyn. The lower Court granted the City’s motion and plaintiff moved to reargue. The lower Court granted reargument and upheld its decision, plaintiff appealed. The Court, which normally will not hear appeals on reargument, decided it was within its discretion to do so here as the underlying Order was upheld upon reargument. The Court unanimously upheld the lower Court’s determination that there was no prior written notice of the condition. IT also found plaintiff’s argument that the City benefited from the special use of the bike lane as it “attracted tourism” to be unveiling and insufficient to impose liability onto the City. The two decisions discussed above, while somewhat different, show how stringent the Second Department is about finding liability against the City. It is decisions like this that push plaintiffs to try to impose liability onto anyone but the City if possible as the burden in showing the City’s negligence is high, and often impossible to meet. In our practice, we see many cases involving defective sidewalk conditions and more often than not, plaintiffs go through great lengths to try to impose liability onto anyone they can find as to make their chances of recovery greater. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Feelings or Perceptions: What's Needed in NJ for Emotional Distress? September 24, 2010 < Back Share to: In the case of Hinton v. Meyers, New Jersey’s Appellate Division was confronted with the question of what amount of "sensory, contemporaneous perception" is necessary for a family member to make out an emotional distress claim arising out of a family member’s death or serious injury. Historically, there are four requirements: (1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. In Hinton, Kwaku Boadu Bosompem went with his infant daughter Yaa Ayannah Bosompem and her mother Catrina Briggs to a job interview. While at the interview, he “felt” he heard his daughter scream and cry out in pain. Bosumpem also heard sirens. But, he never left the interview or looked outside the window. It turned out that while at the interview, a vehicle driven by Eileen Meyers had crashed into the daughter’s stroller and killed her. Bosumpem commenced a lawsuit against Meyers and Briggs. He sought emotional distress damages. The Appellate Division was confronted with the question of whether Bosumpem’s “feelings” were sufficient to substantiate the claim. The answer was in the negative. The Court wrote that to support the emotional distress claim Bosompem had to show that he: “had a sensory, contemporaneous perception of an injury that was sustained by a spouse or close family member, irrespective of the distance from which that perception arises.” Under the facts before it, the Court reasoned that Bosompem failed to meet the “sensory, contemporaneous perception” threshold. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdfserver.amlaw.com/nj/Hinton-a5700-08.pdf Previous Next Contact

News Motor Vehicle Case Dismissed When Court Finds no Question of Fact of Liability (NY) August 2, 2019 < Back Share to: A New York Appellate Court recently granted summary judgment to a defendant in a lawsuit arising from a classic “he said, she said” motor vehicle accident. In the recent Decision by the Appellate Division, the First Department in Castro v. Hatim, granted a defendant driver summary judgment, finding that plaintiff’s version of the accident was contradictory to all other evidence before the court, including crucial photographs from the accident scene. Specifically, photographic evidence showed that plaintiff's SUV struck the rear of defendants' tractor-trailer as plaintiff was attempting to merge into defendants' truck's lane of traffic. The court went on to find that plaintiff’s operation of her vehicle was negligence per se, as a result of violating her "duty not to enter a lane of moving traffic until it was safe to do so". The case involved two vehicles that made contact on the busy Bruckner Expressway in New York City. The points of contact were plaintiff’s front right and the rear of the tractor trailer. The parties agreed that the accident occurred while plaintiff was merging left. The photographs clearly demonstrate that the front passenger side of plaintiff's SUV struck the driver's side rear bumper of defendants' truck, which was wholly within its travel lane while plaintiff was moving her SUV left into the adjacent lane, so the court found that plaintiff moved her SUV into the truck's lane at a time when she could not do so with safety. The decision includes a well-reasoned dissent, criticizing the majority’s finding that the plaintiff’s testimony that she was at a standstill when the accident occurred was “completely implausible”. The majority opinion, in resolving the “he said, she said” actual pattern explicitly discounted the plaintiff's testimony where the plaintiff has "relied solely on [her] own testimony, uncorroborated by any other witnesses or evidence," and her testimony belied "common sense". The dissent expressed that the majority erred in determining plaintiff's actions as lacking exercise of due care and defying common sense is to clearly invade the province of the jury by assuming the testimony of the witness to be untrue. The dissent stated that the disputed facts regarding the speed, position, and location of the vehicles at the time of the impact raised triable issues of fact as to the parties' comparable fault in the happening of the accident, and would have denied summary judgment. It’s a rare win for the defense in a motor vehicle case and a reminder how accident scene photos can be a powerful weapon for the defense. Even in cases where the a question of fact might seem the obvious outcome, defense attorneys should always consider the advantages of dispositive motions. Thanks to Vincent Terrasi for his contribution to this post. Please email Vito A. Pinto with any questions.   Previous Next Contact

News Wade Clark Mulcahy LLP Expands on Long Island with Addition of Steven F. Goldstein LLP March 5, 2009 < Back Share to: Wade Clark Mulcahy is pleased to announce the expansion of its Long Island presence with its merger with Steven F. Goldstein LLP. In addition to Steve Goldstein, who will be Of Counsel to WCM, Partner Gina Arnedos and associate Patrick “PJ” Argento will join WCM, and current WCM Partner Brian Gibbons will serve as the managing partner of the Long Island office. They will focus primarily on liability defense, fraud investigation, and professional liability. Arnedos, Goldstein, and Argento strengthen the firm’s robust litigation expertise. With the opening of the Long Island Office at the former site of Steven F. Goldstein LLP at 1 Old Country in Carle Place, NY, the firm will better serve its clients in Nassau and Suffolk Counties. “We are thrilled to open our Long Island Office and be able to better serve our clients,” says Bob Cosgrove, a member of Wade Clark Mulcahy Executive Committee. “Gina, Steve, and PJ are experienced trial lawyers, and we are ecstatic to have them join the firm.” “Steve and I picked a jury together a few years back and hit it off immediately – I’m excited to work with Steve, Gina and Patrick going forward,” says Brian Gibbons. Steve Goldstein has spent over three decades representing clients, including department stores, camps, gyms, rock climbing facilities, horse farms, nursery schools, youth sports organizations, construction companies, and all manner of business and individual clients. He has vast trying and appealing cases in all New York State and Federal Courts. “We are pleased to join WCM and to offer more resources to our clients, both in the greater New York City area, and in other jurisdictions where WCM has a strong presence.” Gina Arnedos is a skilled trial attorney with 35 years’ experience litigating in New York. She has amassed extensive experience in guiding clients on risk management issues and evaluating cases for settlement, motions for summary judgment, appeals, and trials. Gina has litigated premises liability cases for a multitude of clients over the years, including department stores, camps, gyms, rock climbing facilities, horse farms, nursery schools, and all manner of business and individual clients. Since graduating from Argento Maurice A. Deane School of Law at Hofstra University in 2017, PJ Argento has gained experience litigating in State District Courts and Supreme Courts all over the State of New York. He began his career with the Suffolk County District Attorney’s Office in 2016, while still attending law school. Under a practice Order from the Appellate Division, Second Department, Patrick prosecuted cases as a Law Assistant in Suffolk County District Court. Argento just recently tried his first case in upstate New York. If you'd like any additional information about our new addition or the Long Island office in general, feel free to contact Brian Gibbons. Previous Next Contact

News Call Your Next Witness - Don Gomez August 11, 2023 < Back Share to: Don Gomez joined the United States Army in April 2001, and was in active training when the September 11, 2001 attacks took place. His recounting of that day is probably a version you've never heard before. Don has been deployed to the Middle East several times, and has become both a student and an instructor of Arabic. He remains active in the United States Army. Our discussion delves into problem solving techniques common to both legal and military tactics, and also, the value of "getting our of your bubble." He's also my cousin, and a genuinely good guy. A link to our discussion can be found here. Please note, Don’s comments are his own and do not reflect the position or policies of the United States Army, the Department of Defense, or the United States government. For more information about the podcast, or about being a guest, please email Brian Gibbons. Previous Next Contact

News Lakers Toss Airball in Text Message Coverage Case September 15, 2017 < Back Share to: It is pretty much a given that anywhere you go, everyone is always on their phones. At sports stadiums, teams encourage fan interaction with fan social media posts. Stores send text message alerts of special promotions, and doctors’ offices and salons now confirm appointments by text. But all of these new uses for phone communication carry potential implications for insurers and their insureds under the Telephone Consumer Protection Act (TCPA) which is meant to prevent unsolicited telephone communication with consumers. In fact, many insurance policies now carry specific TCPA exclusion endorsements or exclusions otherwise relating to privacy invasion. The 9th Circuit recently had to grapple with determining whether an invasion-of privacy exclusion applied to exclude coverage for TCPA claims in the case of L.A. Lakers v. Federal Ins. Co. In November 2012, Lakers fan David Emanuel sued the Lakers, alleging that he used his phone to put a personal message on the scoreboard during a game at Staples Center, but subsequently began receiving texts from an autodialer. Emanuel's case was dismissed with prejudice on the grounds that he implicitly consented to receiving a confirmation text from the Lakers when he submitted his original message. The Lakers then settled with Emanuel after he appealed to the Ninth Circuit. The Lakers then sued its insurer, Federal, for refusing in bad faith to defend or indemnify the Lakers in the Emanuel litigation. The insurer moved to dismiss, arguing that the policy's invasion-of-privacy exclusion precluded coverage because a TCPA violation allegation is, in effect, a claim for a privacy breach. The trial court agreed with the insurer and dismissed the Laker’s complaint, holding that TCPA claims fall within the directors-and-officers policy's invasion-of-privacy exclusion, and that the team was therefore not entitled to coverage. The Lakers appealed to the 9th Circuit, and a 2-1 circuit panel upheld the trial court judge's decision for Federal, finding that because a TCPA claim is "inherently an invasion of privacy claim," the lower court properly concluded that the underlying suit against the Lakers was excluded from coverage. Thus, the Court held, the insurer did not breach the policy, or the implied covenant of good faith and fair dealing, in declining to defend against or cover the underlying lawsuit. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.   Previous Next Contact