News NY App. Div.: Insurer May Be Required to Provide Coverage Pursuant to Exclusion Clause in Commercial April 2, 2010 < Back Share to: In Majawalla v Utica First Insurance Co, the plaintiff’s owned commercial property leased to a convenience store proprietor. A woman allegedly fell in the parking lot of the store and commenced a personal injury action. The owner’s sought coverage from Utica (the tenant’s insurer) who disclaimed because the owner’s were not listed as additional insured’s under the policy. However, the Appellate Division denied Utica’s motion for summary judgment based on language in the commercial liability section of the policy. The policy contained an exclusion that stated Utica would not pay for bodily injury or property damage liability assumed under a contract. However, this exclusion expressly stated it did not apply to an "incidental contract." By including this language, the court found that the lease and policy raised a triable issue of fact as to whether Utica was obligated to defend and indemnify the owners. Additionally, Utica also disclaimed based on a provision in which that expressly excluded from coverage for parking lots. However, because this provision appeared in the "property coverages" section of the policy, and not the "commercial liability coverages" portion, the policy did not expressly exclude from coverage based on the commercial liability section for incidents occurring in the parking lot. Special thanks to William K. Kirrane for his contributions to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_02520.htm Previous Next Contact

News Renovation Company Not Liable for Rebar in Garden (NY) August 19, 2016 < Back Share to: In Sewesky v. City of New York and Counsel on the Environment, the plaintiff allegedly tripped over the edge of a concrete slab and was lacerated by rebar sticking out of the concrete in a city-owend community garden. Defendant GrowNYC provided funding and assistance for a renovation project in the garden three years prior to the incident. Counsel argued GrowNYC could not be held liable because it did not own, occupy, control and make any special use of the garden, had no involvement with the garden after the renovation project was complete, and plaintiff could not demonstrate that GrowNYC placed or had knowledge of the rebar. Plaintiff could not testify to how long the condition existed before his accident. The Court agreed with GrowNYC’s arguments and dismissed the case against the defendant. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Ability to Drive Does Not Equate to Ability to Read (PA) July 25, 2019 < Back Share to: On July 16, 2019, the Superior Court of Pennsylvania affirmed a trial court order which overruled the preliminary objections of HCR ManorCare, LLC which sought enforcement of an arbitration agreement in Herlan v. HCR-Manorcare. In February 2014, Herlan was in an automobile accident and sought treatment at HCR ManorCare. In March 2016, Herlan filed a lawsuit asserting a claim of negligence against HCR ManorCare, LLC due to a right femur fracture he suffered while at the HCR ManorCare rehabilitation facility. In response to the complaint, HCR ManorCare filed preliminary objections asserting the parties had entered into a binding arbitration agreement pursuant to a term contained in intake documents Herlan signed when he began his stay at HCR ManorCare. However, Herlan contended that the arbitration clause was not enforceable as he was unable to read the intake documents he signed due to severe vision problems arising from his diabetes. As such, he had relied on an HCR ManorCare administrator to explain the contents of said intake documents – which she admitted she never read or explained to Herlan. Additionally, even though Herlan’s medical charts were at her disposal, she never read his charts or even knew he was visually impaired. Thus, the trial court ruled this evidence was sufficient to deem the arbitration clause unenforceable as Herlan did not knowingly and voluntarily sign the agreement. Accordingly, HCR ManorCare appealed this ruling. On appeal, the Superior Court noted “Pennsylvania has a well-established public policy that favors arbitration.” However, the Court agreed with the trial court that a valid agreement to arbitrate never existed due to Herlan’s visual impairment and the undisputed evidence that HCR ManorCare’s administrator failed to read or explain the arbitration clause to Herlan. HCR ManorCare then made a clever argument, challenging Herlan’s visual impairment by noting he was lawfully operating a motor vehicle at the time of his accident in February 2014. Nonetheless, the Superior Court reiterated the trial court findings that just because Herlan had been driving at the time of his accident, this fact does not speak to his “visual acuity” when the accident occurred. Thus, the Superior Court affirmed the lower court ruling and HCR ManorCare’s preliminary objections were overruled. Thanks to Garrett Gitler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Alleged Direction of Work Trumps Summary Judgment July 23, 2010 < Back Share to: In Powell v. HIS Constrs., Inc., et al., 2010 NY Slip Op 06068, the First Department reversed an order granting defendant GTL Construction’s motion for summary judgment. Plaintiff Joseph Powell allegedly sustained injuries when he fell on an unpaved section of sidewalk that was missing a concrete slab. The sidewalk was at the site of a recent construction project, for which plaintiffs maintained that GTL was the sidewalk installation contractor. Although GTL countered that it had no involvement with the project, performed only interior work, and owed no duty of care to the plaintiff, documentary and testimonial evidence indicated otherwise. The evidence established that GTL may have removed the sidewalk and/or provided directions to another sidewalk installation entity. In analyzing the matter under Espinal v. Melville Snow Contrs., the First Department reversed the lower court, holding that there was a question of fact as to GTL’s involvement in the project and its potential liability in failing to insure that the complete sidewalk was installed. Special thanks to Lora Gleicher for her contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06068.htm Previous Next Contact

Abed Z. Bhuyan Partner New York abhuyan@wcmlaw.com +1 212 267 1900 Professional Experience Abed Z. Bhuyan handles litigation, insurance coverage, and appeals matters in state and federal court. He frequently counsels insurers in fraud investigations and first-party claims, including high exposure property and jewelers block matters. Abed has represented a broad array of clients, from media figures to businesses throughout New York. He has a demonstrated history of handling sensitive litigations, both as a former prosecutor and as management-side defense counsel. Abed was previously an assistant district attorney in the Kings County District Attorney’s Office in Brooklyn, New York, where he investigated and prosecuted crimes of domestic violence and defended convictions on appeal. Later as an assistant corporation counsel in the Labor and Employment Law Division of the New York City Law Department, he represented and defended the City of New York and its agencies in a broad range of single-plaintiff state and federal employment litigation. Professional Activities Association of Workplace Investigators News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Boston University School of Law B.S.F.S. Georgetown University Bar Admissions New York Court Admissions Eastern District of New York Southern District of New York Second Circuit

News Keep on Stacking . . . PA Court Declines Insurer’s Request to Deny UIM Benefits (PA) September 17, 2020 < Back Share to: In Donegal Mutual Insurance Company v. Kevin Krautsack, et al, the Court of Common Pleas of Lancaster County held that “the household vehicle exclusion violates the Motor Vehicle Financial Responsibility Law (“MVFRL”); therefore, these exclusions are unenforceable as a matter of law.” The case stems from an accident in which Kevin Krautsack was injured while riding his mother’s motorcycle. After the accident, the Krautsacks claimed and accepted the maximum uninsured benefits allowed under the motorcycle’s policy, which was issued by Progressive. The Krautsacks then initiated a claim with Donegal for stacked UIM benefits. Donegal responded that it had no duty to provide UIM benefits to Krautsack because the motorcycle he was riding at the time of the injury was not insured under the Donegal policy. As such, Donegal sought to enforce the household exclusion. In Pennsylvania, the “household exclusion” is a clause that insurance companies began using in the 1990’s in auto insurance policies to limit the amount of uninsured motorists (UM) and underinsured motorists (UIM) coverage they had to provide after claims made by their insureds after a car accident. In this case, the Krautsacks argued that the pivotal case of Gallagher v. GEICO Indemnity Company, 201 A.3d 131 (2019), invalidated all household exclusions. Donegal attempted to argue that Gallagher was limited to the specific facts of that case. The Court, however, agreed with the Krautsack, and Judge Ashworth held that the household exclusion is unenforceable as a matter of law. Donegal is further evidence in the Pennsylvania court trend eliminating the household exclusion. It indicates that insurers should no longer rely on the exclusion to deny claims. Thanks to John Lang for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Naked Cowboy Files Legal Briefs February 15, 2008 < Back Share to: The "Naked Cowboy", a tourist attraction in NYC's Times Square for over a decade has sued Mars, Inc., the makers of M&Ms for trademark infringement over a billboard depicting an M&M in what appears to be the Naked Cowboy's unique outfit. http://www.cnn.com/2008/CRIME/02/14/naked.cowboy/index.html Previous Next Contact

News First Department Finds Nine-Year-Old Cannot Assume Risk May 25, 2011 < Back Share to: In Smith v. City of New York, the First Department reversed the trial court’s granting of summary judgment in the case of a nine-year old boy whom broke his arm after falling from monkey bars during a City-run summer camp. Depositions revealed that campers were not allowed on the monkey bars, but the boy told his counselor, who was supervising a nearby basketball game, that he was going to play on the monkey bars. At his deposition, the boy gave contradicting testimony regarding his awareness of the dangers of playing on monkey bars, stating at one point that he knew of the dangers due to a previous monkey bar accident, and stating at another point that he did not think he could get hurt. Because of the contradictory testimony, the Appellate Division, First Department found that the boy did not fully appreciate the risks of his activity, and as such, could not have assumed the risk that his counselor would not supervise him. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04301.htm Previous Next Contact

News MSG and Knicks coach Isiah Thomas whacked in employment case October 3, 2007 < Back Share to: In a public relations nightmare, a federal court jury found Madison Square Garden and James Dolan, its Chairman, liable for sexual harassment, creating a hostile work place and retaliation. The jury apparently credited the account of former MSG executive Anucha Browne Sanders that Knicks coach Isiah Thomas made unwanted sexual advances and directed crude language towards her. The jury awarded $11.6 million dollars including a punitive damages award against Dolan of $3 million dollars. Defiant to the end, Dolan and Thomas vowed to appeal. http://www.cnn.com/2007/US/law/10/02/thomas.suit.ap/index.html#cnnSTCText Previous Next Contact

News How Long is Too Long to Wait before Reattempting Service of a Complaint? (PA) May 29, 2019 < Back Share to: On May 22, 2019, the Superior Court of Pennsylvania affirmed an entry of judgment on the pleadings in favor Antoine’s Timbering, Inc. in Pa Electric Co. v. Antoine's Timbering The case stems from Antoine’s Timbering allegedly cutting down a tree that caused damage to poles, wires and facilities of Penelec as well as a loss of power to its customers. Nonetheless, the issue before the Superior Court involved service of the complaint on Antoine’s Timbering. On February 19, 2016, prior to filing the complaint, Penelec reviewed the address listed for Antoine’s Timbering on the Corporation Bureau which showed that Antoine’s Timbering could be located at RT 438, Box 86, La Plume, PA 18440. However, on April 19, 2016 the Sullivan County Sheriff’s Office filed an affidavit stating service had not been perfected on Antoine’s Timbering because the address was invalid. Even though counsel for Penelec received this information, Penelec did not make another service attempt until 18 months later on October 10, 2017. During that time, the statute of limitations had expired on April 24, 2017 and therefore service was improper. Nonetheless, Antoine’s Timbering was eventually served on December 8, 2017 at the correct address. Upon receiving the complaint, Antoine’s Timbering filed preliminary objections arguing Penelec failed to effect service in a timely manner and therefore violated the statute of limitations. Penelec countered by arguing it had made attempts to secure Antoine’s address and therefore had undertaken a good faith search and therefore the “equivalent period doctrine” applied. The Court sustained Penelec’s preliminary objections and, after the pleadings closed, Antoine’s Timbering filed a motion for judgment on the pleadings making the same argument. This time, the Court agreed and granted the motion filed by Antoine’s Timbering. The Court ruled that the 18 month delay “unnecessarily delayed the legal process” and therefore Penelec did not make a good faith effort to serve Antoine’s Timbering. On appeal, Penelec attempted to argue it made a good faith effort in serving Antoine’s Timbering but the Superior Court again disagreed. The Court stated the “equivalent period doctrine” was inapplicable here because Penelec had provided no justification as to why it waited 18 months to attempt to effect service on Antoine’s Timbering again. The Court noted that Penelec had not even tried to locate another address for Antoine’s Timbering during that time. As such, the Court affirmed the lower court’s ruling. This fact pattern also offers some insight as to why defense counsel should be careful before agreeing to waive jurisdictional defenses in exchange for an extension of time to answer a complaint. Jurisdictional defenses include lack of personal jurisdiction and improper service, and those defense come in handy -- especially when approaching the statute of limitations deadline. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Advice to NJ Jurors: Don't Talk on the Elevator March 10, 2010 < Back Share to: In a recent criminal trial in New Jersey, Police Officer Fine testified on behalf of the State. After he concluded his testimony -- and right before closing arguments -- the officer encountered one of the jurors on the courthouse elevator. The juror told the officer "you did fine." He then added “the defense lawyer was kind of crazy" (according to the juror) or "defense attorneys can be a__holes" (according to the officer). The jury convicted the defendant of cocaine possession shortly thereafter. At some point during deliberations, the police officer reported his conversation to the prosecutor, who then reported this to the judge. The judge conducted a hearing on the issue, and determined the juror exhibited a bias he did not reveal during voir dire, and further, failed to follow the court's instructions to refrain from forming any opinions or reaching any judgment about the evidence until after the case had concluded and the jury had been charged on the law. The Court declared a mistrial, vacated the conviction, and granted the defendant a new trial. The Appellate Division affirmed the decision, agreeing that the juror improperly failed to disclose his prejudicial views during voir dire. Typically, jurors say whatever they can during voir dire in an effort to get excused from a jury. It seems like this juror had a big mouth but bad timing. If you would like further information about this post, please contact Mike Bono at mbono@wcmlaw.com http://www.leagle.com/unsecure/page.htm?shortname=innjco20100302280 Previous Next Contact

News When Does Art Really Lose Its Value? December 7, 2012 < Back Share to: We, here, at WCM are often asked to tackle the appropriate legal measurement of a work of fine art's loss in value. Often times, when we get involved, one side or the other has declared the work a "total loss" requiring full market or scheduled value repayment. But, perhaps, that is the wrong way of looking at things since even damaged art can have value. This interesting article profiles the Salvage Art Institute, an organization that takes the position that even damaged art has value. The question is -- can that value be measured in terms a court will accept? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact