News The Devil is in the Details May 17, 2024 < Back Share to: If a plaintiff fails to specify exactly where and how their alleged accident occurred, it may lead to a dispositive ruling in defendant’s favor. For example, in T. N. v City of New York , 2024 NY Slip Op 02539 (2d Dep’t May 8, 2024), the 13-year-old plaintiff was injured after she fell down the basement steps of Stephen Decatur Middle School No. 35 in Brooklyn in March 2016. Plaintiff’s notice of claim, bill of particulars, and several depositions all identified staircase B as the subject staircase. However, during a March 2021 site inspection plaintiff identified staircase A as the actual staircase where she fell. Defendants moved for summary judgement on the grounds that plaintiff repeatedly failed to correctly identify the place where the accident occurred. Plaintiff cross moved to amend the complaint to correct her failure, but the trial court denied her motion. The Second Department affirmed the ruling because Plaintiff’s failure to identify the correct staircase was in violation of General Municipal Law § 50-e(2), which requires that the notice of claim set forth the place where the claim arose. When Plaintiff tried to amend the notice of claim to set forth the correct staircase, the Second Department found that Plaintiff failed to demonstrate a lack of prejudice due to the five-year delay in seeking leave to identify the correct accident location. This ruling shows that under certain circumstances, failure to identify even the correct stairway can result in dismissal of a case. T N v. City of New York .pdf Download PDF • 151KB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News Got Protocols? Great... but did you follow them?(NY) October 2, 2013 < Back Share to: In Rodriguez v. Bronx Zoo Rest., Inc., the plaintiff alleged personal injuries after slipping on ice in front on the defendant restaurant. The Bronx County Supreme Court granted the defendant's motion for summary judgment on liability, finding that the restaurant had protocols in place for how to deal with ice and snow removal after a significant snowfall. The First Department reversed, however, because although the defendant had snow removal protocols in place, there was no evidence proffered "from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident." See De La Cruz v Lettera Sign & Elec. Co., 77 AD3d 566 (1st Dept 2010). The restaurant supervisor testified as to what was ordinarily done after a snowfall but admitted that she only visited the restaurant twice a week. Hence, she could not say what was actually done after this particular snowfall. As such, the appellate court found that "evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment." The Court went further, finding that even if the protocols had in fact been followed, the plaintiff presented triable issues of fact as to whether defendants had constructive notice of the danger presented by the icy condition. Looking to the weather history for the days leading up to the incident and the plaintiff's description of a filthy patch of black ice, there was evidence that the condition could have been present for up to two days. While ice removal protocols are good to have in place, standing alone without proof that the protocols were actually followed, they are not sufficient to establish a right to summary judgment. Special thanks to Brian Gibbons for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Bed Rails – Consumer Product or Medical Device? November 26, 2012 < Back Share to: Who would have thunk it , but bed rails are apparently rather dangerous for the elderly and strangling deaths are somewhat common. This has resulted in a rash of new medical malpractice/product liability/negligence claims. As this article makes clear, one of the interesting questions raised in the claims is whether bed rails are a consumer product or a medical device. The answer, which is uncertain, is significant as medical devices are generally afforded greater legal protections than mere consumer products; medical devices are also more highly regulated. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News Even With A Jury Finding Of Bad Faith On Behalf Of The Losing Party, Attorneys Fees May Not Be Recoverable July 1, 2022 < Back Share to: In Elmagin Capital, LLC v. Chao Chen, et al., Judge Stephanos Bibas declined to award attorneys fees to prevailing defendants, despite the fact that the jury found that the plaintiff acted in bad faith by filing the suit in the first place. Elmagin Capital originally sued multiple defendants for trade-secret misappropriation and breach of contract. Elmagin lost on all issues at trial and the jury found that it had brought its trade secret claims in bad faith. The defendants then sought attorneys’ fees under federal and state law. Under federal law, the court may award reasonable attorneys’ fees if the claims “completely lack evidence” and the plaintiff knew or was reckless in not knowing that its claims lacked merit. Based on the evidence presented, the jury found that Elmagin’s claims were brought in bad faith. Judge Bibas, however, found that the jury’s finding was merely advisory, and therefore rejected it. Judge Bibas reasoned that because attorneys’ fees are generally an equitable remedy, the defendants had no right to a jury verdict on the issue. Judge Bibas found that there was more than some basis for Elmagin’s claims, which entitled him to treat the jury’s decision as advisory. He ultimately determined that the jury’s verdict on bad faith was mistaken, and exercised judicial discretion to deny attorneys’ fees. Thanks to John Lang for his contribution to this post. Should you have any questions, please do not hesitate to contact Tom Bracken. Previous Next Contact

News Affirmative Defense or Admission? Plead With Caution (NY) September 4, 2013 < Back Share to: When preparing an answer, we are ever-concerned with overlooking potential affirmative defenses, as failing to assert that defense may result in waiver. However, it is equally important to consider the ramifications of asserting potential defenses and to craft the affirmative defenses appropriately. In Hollinden v. City of New York, the City of New York almost learned this lesson the hard way. There, the plaintiff alleged that she was assaulted by Dennis, a New York City police officer. The City, in its answer, denied “knowledge or information sufficient to form a belief with respect to the truth of the allegations” set forth in the paragraphs alleging that Dennis was a police officer and that he was acting within the scope of his employment. Yet, as an affirmative defense, the City asserted that “such acts as were committed by law enforcement in the employ of the City of New York in the scope of their employment were justified.” Plaintiff moved for summary judgment on the basis that Dennis was convicted of assault and that the City’s affirmative defense constituted an admission. The Supreme Court granted the motion, but the Second Department reversed. The appellate court found that the language in the affirmative defense was expressed in conditional language that could not be construed as an admission. The court noted that, in fact, the City denied knowledge sufficient to form a belief as to whether Dennis was acting within the scope of his employment. Moreover, while the plaintiff sought to utilize language that was favorable to him, he refused to be bound by allegations in the answer that were not favorable. Special thanks to Gabe Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News US Supreme Court Grants Certification To Review Choice Of Law Clause In Admiralty Case Could Open Insurers To Bad Faith Actions March 10, 2023 < Back Share to: The Supreme Court granted review in Great Lakes Insurance SE v. Raiders Retreat Realty Co., agreeing to consider whether, under federal admiralty law, a choice of law clause in a maritime contract can be rendered unenforceable if its enforcement is found to be contrary to the “strong public policy” of the state whose law is displaced. Raiders stems from a declaratory judgment action brought by Great Lakes Insurance SE (“GLI”). GLI had insured a vessel owned by Raiders Retreat Realty Co. (“Raiders”) that ran aground in June 2019. GLI sought a declaration that Raiders’ alleged failure to recertify or inspect its fire extinguishing equipment, which GLI allegedly violated a warranty in the policy, and rendered the policy void from its inception, meaning GLI owed Raiders no coverage with respect to the incident. Raiders responded to GLI’s declaratory judgment action with several counterclaims, including three counterclaims arising under Pennsylvania law, two of which—for bad faith and unfair trade practices—would not be available under New York law. The United States District Court for the Eastern District of Pennsylvania held that the policy’s choice-of-law provision mandated the application of New York law. As such, the District Court dismissed the Pennsylvania-based counterclaims. In its dismissal, the District Court rejected Raiders’ argument that because applying New York law would contravene Pennsylvania public policy, the policy’s choice-of-law provision was unenforceable under a Supreme Court case, The Bremen v. Zapata Off-Shore Co., which held that a forum-selection provision is unenforceable under federal admiralty law “if enforcement would contravene a strong public policy of the forum in which suit is brought.” The United States Court of Appeals for the Third Circuit reversed the District Court’s holding, finding that the District Court should have considered whether applying New York law would contravene Pennsylvania’s “strong public policy.” The Third Circuit noted that under Supreme Court jurisprudence, “maritime contracts are governed by federal admiralty law when there is an established federal rule, but absent such a rule, state law applies.” GLI had argued that there is an established federal rule—namely, that a choice of law provision in a marine insurance contract will be upheld in the absence of evidence that its enforcement would be unreasonable or unjust. Accordingly, GLI argued, federal admiralty law should apply. The Third Circuit found that the principle noted by GLI, of generally enforcing choice-of-law provisions in marine insurance contracts, is not altogether separate from the choice-of-forum regime set out in The Bremen. As such, the Third Circuit remanded the case for further proceedings, instructing the District Court to consider whether applying New York law would contravene Pennsylvania public policy. The disposition of this case could have a large impact on maritime insurance contracts that are governed by federal admiralty law. If the Third Circuit’s decision is upheld by the Supreme Court, courts would be required to consider whether enforcement of a policy’s choice-of-law provision would contravene a strong public policy of the displaced state. In conflicts between New York and Pennsylvania law, like the one at issue in Raiders, this would mean that insurers could be subject to claims for bad faith and unfair trade practices even if their policy contains a New York choice of law provision. The Supreme Court will likely hear oral argument in Raiders in Fall 2023. Thanks to Erin Gallagher for her assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Do The First and Second Circuits Disagree On The Meaning of “Sudden and Accidental”? July 14, 2016 < Back Share to: The First and Second Circuits find themselves in potential conflict as a result of a suit for defense costs relating to environmental cleanup costs. The central issue is whether the discharge of pollutants fell within the policy’s pollution exclusion. When interpreting whether an event falls within a pollution exclusion, the threshold question is whether the event was “sudden and accidental.” If so, the event falls outside a policy’s relevant pollution exclusion and an insurer likely owes coverage. In The Narragansett Electric Co. v. Century Indemnity Co., a cache of long buried waste was discovered, triggering a release of hazardous chemicals. Applying Massachusetts law, the district court found coverage was triggered and the event was “sudden and accidental,” which caused it to fall outside the policy’s relevant pollution exclusion. On appeal, the Second Circuit panel reversed, stating simply “any property damage alleged in this case plainly arose out of the NEC's intentional disposal of wastes on the Mendon Road site.” The Narragansett Elec. Co., Plaintiff–Appellee–Cross–Appellant, v. Century Indem. Co., Defendant–Appellant–Cross–Appellee., No. 15-1137 -CV(L), 2016 WL 3450187, at *1 (2d Cir. June 23, 2016). Narraganset (“NEC”) claims the Second Circuit created a standard in which a policyholder will never be entitled to coverage once waste is disposed of on the subject property, no matter what may have triggered the dispersal of the dormant pollutants. In response to the ruling, NEC filed a motion to reargue, claiming the Second Circuit failed to consider controlling law. To support their contention, they cite to the First Circuit’s decision in Millipore v. Travelers Indemnity Co. In Millipore, pollutants were released following attempts to douse a raging chemical fire at one of the covered properties. The First Circuit found the explosion was sudden and accidental as defined in the policy, and the remediation efforts were directly related to that event. Applying Massachusetts law, the First Circuit found the event qualified as “sudden and accidental” and was outside the pollution exclusion. According to NEC, the facts in both cases are so similar the Second Circuit should have taken Millipore into account. NEC contends it was improper for the Second Circuit to distinguish the remediation efforts in Millipore with the accidental discovery of waste that had been buried for fifty years. In each case, Narragansett claims, the actions of a third party caused a separate, unexpected release that was potentially sudden and accidental. In our view, Narragansett’s allegations fail on two grounds. First, they misconstrue the meaning and reasoning behind the Second Circuit’s ruling. The Second Circuit’s ruling was based almost entirely on the allegations in the complaint. The allegation in the underlying complaint in Narraganset stated “Maurice C. Brunelle uncovered blue sludge that was contaminated with chemical substances [from NEC's waste]. ... [and thereby] caused hazardous chemicals to be released to the environment.” The Narragansett Elec. Co., Plaintiff–Appellee–Cross–Appellant, v. Century Indem. Co., Defendant–Appellant–Cross–Appellee., No. 15-1137 -CV(L), 2016 WL 3450187, at *1 (2d Cir. June 23, 2016). The Second Circuit could find nothing in those allegations supporting a finding the release was “sudden and accidental.” As the Court wrote, “[T]he Commonwealth's complaint, by contrast, ‘cannot reasonably be read’ to describe a ‘sudden and accidental’ release of pollutants separate from the NEC's intentional release of pollutants into the environment over the course of decades.” Id at 1. On that basis, the Second Circuit found the Pollution Exclusion applied to bar coverage and thus no duty to defend. In contrast to the claims put forth by Narraganset, no precedent setting standard was created. Second, the facts in Millipore and Narraganset are not as similar as NEC contends. In Millipore, an unanticipated fire and the ensuing remediation efforts were the direct causes of the hazardous release of pollutants. The insured was able to show the release was sudden and accidental. In Narraganset, the third party “uncovered blue sludge” which apparently spawned the release of dormant chemicals. NEC was unable to demonstrate the third party’s actions caused the spread of the pollutants or that the phenomenon was sudden and accidental. As such, the mere allegation of uncovering a pollutant did not present a scenario similar enough to implicate the ruling in Millipore. In our view, Millipore and Narraganset are distinct enough to exist in harmony with one another. Thanks to Joshua Gornitsky for his contribution to this post. For more information, please email Dennis M. Wade at dwade@wcmlaw.com . Previous Next Contact

News NY Labor Law Claims Too Small to Proceed April 29, 2016 < Back Share to: In Vitale v. Astoria Energy II, LLC, et. al. the plaintiff was a surveyor injured while working at a construction site. At the time of the accident, plaintiff was verifying the accuracy of the location of approximately 200 anchor bolts, which needed to be tightened before the concrete foundation was poured. This required plaintiff to walk from anchor bolt to anchor bolt, across the top of a rebar grid that was around 100 feet by 50 feet, and 5 feet high. The rebar grid had square openings, which were about 12 inches by 12 inches. The plaintiff allegedly was injured when he lost his balance while walking across the top of the rebar grid and his left leg fell through one of the square openings of the rebar grid. Plaintiff sued, alleging, in part, violations of the New York Labor Law, but the defendants were awarded summary judgment against these those counts, and that decision was affirmed by the Appellate Department. The defendants established that the openings of the grid, which were not of a dimension that would have permitted the plaintiff's body to fall completely through and land on the floor below, were not an "elevation-related hazard" protected under the Labor Law. Likewise, these openings did not qualify as "hazardous openings," under the New York administrative code as they were too small for a worker to completely fall through. Thanks to Paul Vitale for his contribution of this post and please write to Mike Bono for more information.   Previous Next Contact

News Fall From Height Not Necessary to Sustain a Fall From Height Injury June 23, 2009 < Back Share to: In Peters v. Kissling Interests, Inc., the plaintiff was standing on a window sill that was several feet above the floor, attempting to remove the window trim with a pry bar. A piece of loose trim unexpectedly broke free from the window and he began to fall backwards off the window sill. When the plaintiff grabbed the window sash to prevent himself from falling, the window shattered and a piece of glass struck his wrist. The lower court granted the defendant's motion for partial summary judgment dismissing the Labor Law § 240(1) claim holding that the plaintiff did not actually fall from a height. The Appellate Division, however, reversed and held that a worker is protected by Labor Law § 240(1) when he or she is subject to an elevation-related risk and the failure to provide any safety devices to protect the worker from such a risk is a proximate cause of his or her injuries. The fact that the plaintiff here did not actually fall was irrelevant. Thanks to Cheryl Fuchs for her contribution to this post. http://www.courts.state.ny.us/AD4/Court/Decisions/2009/06-05-09/PDF/0498.pdf Previous Next Contact

News Don't Be Late - NY APP Div. Finds Tardy Defendants In Default November 1, 2010 < Back Share to: In the recent decision of Blaunt v. Berkovits, the Second Department held that the trial court had erred in excusing defendant's default in failing to timely answer the complaint. Let this be a lesson -- though parties are usually lax about a couple of days and many are willing to provide stipulations extending time to answer -- the New York State Courts are not always as forgiving. Here, they determined that though there was only a short delay in answering the complaint, the defendants failed to provide any satisfactory explanation for the delay and failed to make any showing of any potentially meritorious defense to the claims raised by plaintiff. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07707.htm Previous Next Contact

News Can't Always Blame Your Secretary (NJ) September 13, 2013 < Back Share to: In the recent unreported decision of Vanderslice v. Stewart, the court considered whether to confirm an arbitration award although the defendants had failed to timely file a demand for trial de novo following a non-binding arbitration. Vanderslice alleged that he was injured in a motor vehicle accident. A mandatory, non-binding arbitration was held on January 18, 2012, with a determination that the County was 100% liable to Vanderslice for approximately $145,000 in damages. The time to reject the arbitration award and file a demand for trial de novo expired on February 17, 2012. After confirming that no such demand was filed, on February 23, 2012, Vanderslice filed a motion to confirm the arbitration award and the defendants cross-moved to permit a late filing. In their cross-motion, the County’s attorney reported that an attorney from his office had prepared the demand and had given it to a secretary to file. Although the demand was sent to the court, the required fee was not attached. Rather, a direct voucher accompanied the filing, not an actual payment. The County’s attorney argued that they had substantially complied with the standard within the required time. The judge agreed and granted the County’s motion. The case eventually went to trial and the jury rendered a defense verdict. Vanderslice appealed. The Appellate Court held that the time for rejecting an arbitration award is to be strictly enforced and should only be relaxed upon a showing of exceptional circumstances. The Court further noted that counsel’s inattention, carelessness, neglect or lack of substantial compliance did not constitute an extraordinary circumstance. Ultimately, the Appellate Court found that in this specific case the County attorney’s lack of diligence was not an exceptional circumstance, so the arbitration award was confirmed and judgment was entered in favor of the plaintiff. Special thanks to Heather Aquino for her contributions to this submission. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Don’t Leave Them Any Opening on Summary Judgment (NY) July 3, 2019 < Back Share to: The City of New York recently had a significant summary judgment motion victory reversed on appeal in the Second Department in Tyberg v City of New York. An 8-year-old infant plaintiff was walking with his mother on his way to board his school bus when he darted away from her and ran into the side of a passing vehicle. While the driver and the City were granted summary judgment because plaintiff had darted out into traffic and there was no evidence of negligence on the driver’s part, the Appellate Division reversed as to the City. Plaintiff had pleaded, as an additional theory of liability, that the City ad negligently designed the traffic control system at the subject intersection. Although the City submitted evidence it had conducted studies of the intersection in 2005 and 2007 in response to citizen complaints and determined no traffic control device was necessary at the intersection, the Appellate Division ruled this was not sufficient to meet their burden, because those studies were performed in the summer, when nearby schools were not in session. To be sure, the question of qualified immunity for a municipality arising out of civil engineering is a fairly technical one, and the Court was particularly strict in its analysis here. However, lesson is a valuable one, in that defendants must consider every possible opening the Court may take to deny summary judgment, both in drafting the motion, and in considering settling a case even after winning summary judgment while the leverage is still strong. Instead, the City will have to try to persuade a jury not to give an award to an injured child on the basis of their engineers’ byzantine explanation for why the intersection is perfectly safe. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact