News Storm "In Progress" Twelve Hours After Snow Stopped (NY) November 15, 2013 < Back Share to: The “storm in progress” rule provides that a property owner is not responsible for accidents occurring as a result of snow and ice accumulation on its premises until an “adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm." In Wei Wen Xie v Ye Jiang Yong, the Courts will provided an example of what constitutes an “adequate period of time.” Snow had been falling on February 10, 2010, during which the defendant homeowner shoveled his sidewalk between 5:00 and 8:00 p.m. The snow finally stopped around midnight that evening. Thereafter, the plaintiff fell on ice in front of the residence at about 8:15 a.m. the following morning. The homeowner moved for summary judgment and the trial court granted the motion. In affirming the decision, the Second Department held that a “reasonably sufficient time had not elapsed after the cessation of the storm to permit him to remove any additional snow or ice that had accumulated after his initial snow removal efforts.” Specifically, the time of 8:15 a.m., when plaintiff fell, was not sufficient time for the owner to remove the snow or ice, as the snow had stopped during the overnight hours. The Court also confirmed that the owner’s prior snow removal efforts did not exacerbate the icy conditions, as the owner salted the area after his shoveling, and the plaintiff’s unsworn expert report failed to raise a triable issue of fact. We do note, however, such circumstances may be fact specific, as this particular case was in regards to snow removal on a residential homeowner’s premises and the standard could be different in the case of a commercial property owner. Thanks to Jung Lee for his contribution to this post. Previous Next Contact

News NY Fan Assumes Risk of Pre-Game Flying Bat April 4, 2013 < Back Share to: A fan with good seats near third base at the Brooklyn Cyclones ballpark was injured when a player was horsing around on the field before the game and lost control of his bat, which sailed into the stands and hit the plaintiff in the nose. The plaintiff conceded that he assumed the risk of flying balls and bats during the game but took issue with being struck before the game when players were just warming up/horsing around. The court dismissed the case, ruling that the risk of such a pre-game injury is assumed by spectators equally with similar in-game risks. The negligent player, a 44th round pick in 2002, now works as a salesman for a medical supply company. Previous Next Contact

News Unlocking Coverage: The Key Role of Occupancy Determination August 12, 2024 < Back Share to: In Jones-Molina v. Southeastern Pennsylvania Transportation Authority , 29 A.3d 73 (Pa. Commw. Ct. 2011), the Commonwealth Court of Pennsylvania addressed whether a passenger on a SEPTA bus remained an “occupant” of the bus for insurance coverage purposes after being struck by an unidentified motorist upon exiting the bus to board a SEPTA trolley. Jones-Molina originally brought an action in the Court of Common Pleas against the Pennsylvania Financial Responsibility Assigned Claims Plan (“Plan”) for first-party and uninsured motorist benefits. The Plan joined SEPTA, arguing that SEPTA should cover Jones-Molina’s injuries since she was still technically an occupant of a SEPTA vehicle. SEPTA contended that Jones-Molina was not physically on a SEPTA vehicle at the time of the accident and invoked sovereign immunity. The Court of Common Pleas sided with the Plan, finding against SEPTA on both the sovereign immunity and occupancy issues. SEPTA appealed to the Commonwealth Court, which reviewed the occupancy issue. The Commonwealth Court referenced the Pennsylvania Supreme Court’s four-part test to determine whether a person is considered to be occupying a vehicle: There must be a causal relation or connection between the injury and the use of the insured vehicle. The person asserting coverage must be in reasonably close geographic proximity to the insured vehicle, though they need not be touching it. The person must be vehicle-oriented rather than oriented toward the highway or sidewalk. The person must be engaged in an activity essential to the use of the vehicle at the time. ( Utica Mutual Ins. Co. v. Contrisciane , 504 Pa. 328, 336, 473 A.2d 1005, 1009 (1984)). Under this test, physical presence inside the vehicle is not required to be considered an occupant. In Contrisciane , a driver, who had left his vehicle and walked nearly 100 feet to speak with a police officer, was struck and killed by an uninsured driver. The Pennsylvania Supreme Court held that the driver met the requirements to be considered an occupant of his vehicle despite not being physically inside it. However, the Commonwealth Court distinguished Contrisciane from the present case. In Contrisciane , the driver presumably intended to return to his vehicle after speaking with the officer. In contrast, Jones-Molina did not intend to return to the SEPTA bus; she was preparing to board another vehicle. The court found no material difference between someone intending to transfer to a different mode of transportation (like a taxi or PATCO subway) and someone briefly attending to an errand before proceeding to a second bus, or even simply crossing the street. The court concluded that a passenger struck while crossing the street should not be treated differently from a normal pedestrian. As Jones-Molina was not considered an occupant of the SEPTA bus, the Commonwealth Court reversed the lower court’s decision and remanded for entry of judgment in favor of SEPTA and against the Plan. Jones-Molina v. Southeastern Pennsylvania Transp Authority .pdf Download PDF • 217KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Misuse of Ladder Not Sole Proximate Cause of Accident April 14, 2009 < Back Share to: In Rico-Castro v. Do & Co. New York Catering, Inc. (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01789.htm) the plaintiff was working on an A-frame ladder that he left in the closed position and leaned up against a wall. The ladder slipped, and the plaintiff fell to the floor and was injured. A New York appellate court granted summary judgment to the plaintiff on Labor Law section 240 even though he misused the ladder (i.e., leaving it closed), ruling that the misuse was not the "sole proximate cause" of the accident and injury. Justin Rowe contributed this post. Previous Next Contact

News Liability Against Owner Requires Special Use (NY) August 12, 2020 < Back Share to: In Pollard-Leitch v. R & D., the Appellate Division, Second Department addressed whether the defendants – R & D Utica Realty, Inc. were the owners of the property abutting the sidewalk where the plaintiff tripped and fell. The Supreme Court denied the defendant’s motion for summary judgment to dismiss the complaint and all cross claims asserted against it which was reversed by the Appellate Division. Plaintiff allegedly tripped and fell on a public sidewalk next to a fenced-in parking lot owned by R & D Utica Realty, Inc. R&D then moved for summary judgment on the basis that they did not have a duty to maintain the portion of the sidewalk where plaintiff fell as they did not own the abutting property. The Appellate Division stated that “Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property. The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none of those elements are present, "[generally] a party cannot be held liable for injuries caused by the [dangerous] condition of the property." R & D was able to establish that they were 1) not the owner of the property abutting the portion of the sidewalk where plaintiff fell, 2) that they did not negligently construct or repair that portion of the sidewalk and 3) cause the alleged condition to occur by some special use of the sidewalk. As such, the defendants were granted summary judgment dismissing the plaintiff’s complaint. This decision serves as a reminder that when sued for a defective sidewalk to first consider: did you 1) own, 2) occupy, 3) control or 4) cause the condition by special use the sidewalk? If the answer is no to all four, then you may not have a duty of care to the sidewalk at issue. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Gap In Treatment Not a Toll for Limitations Statute (NY) May 9, 2017 < Back Share to: The New York statute of limitations for a medical malpractice action is two and a half years. The time begins to accrue either from the date of the malpractice or from the time of last treatment. So what if a plaintiff stops treating and then goes back to the doctor more than 2 ½ years later? In Clifford v Kates plaintiff commenced an action against Dr. Stephen Kates and the various medical institutions with which he was affiliated. Plaintiff underwent a total hip replacement with Dr. Kates to treat her right hip pain in 2008. After the surgery, plaintiff was experiencing pain, and followed-up with Dr. Kates for a period of approximately six months into January 2009. She became disillusioned with the Dr. Kates and sought treatment with various other doctors. She also consulted with an attorney who sent authorizations to the hospital and Dr. Kates for her medical records for litigation purposes. In 2011, approximately two years after her last appointment with Dr. Kates, she returned to him once more. Plaintiff then commenced an action against Dr. Kates in 2013 alleging medical malpractice. Defendants moved for summary judgment, claiming that the action did not fall within the statute of limitations, since it was brought more than 2 ½ half years after plaintiff’s post-surgical treatment with Dr. Kates in 2009. Plaintiff argued that her visit in 2011 established that the physician-patient relationship was still in effect, and thus her treatment was ongoing until that date. The Court ruled that the gap called into question the “continuous” nature of the relationship, and in particular held that the service of authorizations stopped the tolling of the statute. As such, the Court granted defendants’ motion for summary judgment. Thanks to Christopher Gioia for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Gym Denied Summary Judgment Because Of Conditions At Premises (NY) December 16, 2022 < Back Share to: In Steven Lore v. Fitness International LLC, 2022 NY Slip Op 06922 (2d Dept. 2022), plaintiff sued his gym alleging serious injury from a trip and fall inside one of its showers in the locker room. Specifically, the injury occurred because of a single step riser 4 ½ inches in height. Following discovery, defendant gym owner filed for summary judgment arguing that the condition was open and obvious to the plaintiff, and not an inherently dangerous condition. Plaintiff opposed the motion arguing poor lighting made it difficult to see the shower riser. The trial court granted summary judgment to defendants, and the Second Department reversed that decision. While it is true that there is no duty to protect or warn a public against an open and obvious condition that, as a matter of law, is not inherently dangerous, the Appellate Court reasoned that the issue of open and obvious should take into consideration the surrounding environment (Sebagh v Capital Fitness, Inc., 202 A.D.3d 853, 855; Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; Kernell v Five Dwarfs, Inc., 207 A.D.3d 622). The Appellate Court also held that determining "whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for the jury" (Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; Liriano v Hobart Corp., 92 N.Y.2d 232, 242). Here, the Appellate Court held the plaintiff’s argument that the lighting condition was poor and made the condition difficult to see was enough to deny dismissal and take the claim to a jury. The Appellate Court’s decision emphasized the difficulty of sustaining a dismissal on the basis that a condition was open and obvious and not inherently dangerous to the public. In order to sustain such a dismissal at summary judgment, there can be no other factors that could lead to the obfuscation of the alleged condition, i.e. poor lighting, no warning signs, out of place condition. One way to avoid this liability would be to clearly articulate the condition on the property, so that there is no argument that it was hidden or not visible to the naked eye. Otherwise, the court will determine the analysis to be fact-specific and leave it as a triable issue of fact for a jury. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News How Clear Does Your Policy Exclusion Need To Be In The AI Age? March 31, 2023 < Back Share to: In most jurisdictions, courts interpret policy language in favor of the insured, especially when it comes to ambiguous exclusions. With the rise of the Artificial Intelligence and its implication towards data privacy, insurance companies are facing potentially large claims from class action suits. In 2022, the Illinois Eastern Division District Court heard a coverage case arising from AI technology. Wynndalco is an IT consulting firm that is licensed to sell Clearview AI products in Illinois. Clearview AI is an artificial intelligence company that specializes in facial recognition software. A class action suit was filed against Wynndalco for violating an Illinois statute (Biometric Information Privacy Act) that regulates the collection of biometric information by selling Clearview products in Illinois. Wynndalco purchased a business owners insurance policy from Citizens and the policy provides coverage for “personal and advertising injury” with a number of exclusions including a statutory violation exclusion which excludes coverage for violation of TCPA, FCRA and state statutes regarding collecting or distributing of material or information. The court ruled that the exclusion was ambiguous on its face because the exclusion is overinclusive since most statutes regulate information to some degree. Further, the court could not interpret the language based on the exclusion purpose since the exclusion also applied to federal statutes like FCRA that regulates the credit reporting industry, not only to statutes that regulated distribution of information. In turn, the court ruled that Citizen owed a duty to defend Wynndalco and the exclusion above did not apply. As we are seeing the unparalleled advancement of AI technology and its implementation in various industries, policy exclusions can be the determining factor in potentially high liability exposures. Thanks to Yifan Lin for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Finding Of Incompetence Does Not Warrant Termination Of Custodian Under New York Civil Service Law Section 75 (NY) March 24, 2023 < Back Share to: New York Civil Service Law section 75 governs discipline for certain classes of public employees. Section 75 provides, in relevant part, that a covered person shall not be removed or subject to any disciplinary penalty except for incompetency or misconduct. The section does not specifically define the term incompetence, but arbitration decisions and case law have established the burden of proof necessary to establish incompetence. For example, in Matter of Kimble v. Yonkers Bd. of Educ., the Appellate Division, Second Department addressed this issue in reviewing the decision of a school board to terminate a custodian after a Section 75 hearing had determined that he was guilty of incompetence, insubordination and misconduct. The Court’s review was limited to whether the administrative determination was supported by “substantial evidence,” defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” Recognizing that a finding of incompetence only requires evidence of “some dereliction or neglect of duty”, the Court determined that there was substantial evidence in the record to support the determination that the custodian was guilty of incompetence, insubordination, and misconduct as he discovered a knife and pepper spray under a radiator and left them there for approximately three hours knowing that there were students and other staff in the building, and gave students money after betting that one of the students would win in a basketball gamer. However, after considering the janitor’s length of service and lack of a prior disciplinary record, the Court found that the ultimate penalty of termination was “so disproportionate to the offense as to be shocking to one’s sense of fairness.” Kimble is significant in that the Second Department agreed with school board and hearing officer that the public employee was guilty of incompetence and misconduct but refused to sanction the employee’s firing based on the employee’s record and length of service. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Is A-Rod Causing Problems Beyond Baseball? July 29, 2013 < Back Share to: Alex Rodriguez has caused a host of problems for baseball and the Yankees. It now appears he might be about to start causing insurers problems. The question is -- how bespoke is the insurance policy such that the voiding of a $100,000,000 insurance contract is covered (or excluded) by the policy? Stay tuned to find out! For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Early Summary Judgment Is Not Always Premature (NY) September 27, 2017 < Back Share to: Occasionally, there are instances where a party can feel trapped in a case in which it does not belong. The Appellate Division, Second Department’s decision in Haidhaqi v Metropolitan Transportation Authority provides guidance on moving for summary judgment in advance of the close of discovery while combatting opposing counsel’s claims that such a motion is premature. Plaintiff Haidhaqi alleged that he was injured while working at a Metropolitan Transportation Authority project at the Culver Viaduct in Brooklyn, New York, where his employer was the general contractor pursuant to contract with the MTA. Plaintiff claimed that while painting an elevated beam, he was pinned between the railing of the boom lift he was using and the beam. His allegations sounded in violation of New York Labor Law 200, 240, and 241(6). Plaintiff’s employer was the general contractor for the Culver Viaduct project pursuant to contract with the MTA. Defendant F&S Contracting was retained by the MTA under a separate contract as general contractor for the rehabilitation of a subway station at Smith Street in Brooklyn, which was located on part of the Culver Viaduct. Before the close of discovery, F&S unsuccessfully moved for summary judgment, which had been opposed by plaintiff’s counsel as premature. The Appellate Division reversed the lower court, finding that F&S established that the work it performed in connection with the Smith Street Project was entirely distinct from, and unrelated to, the injury-producing work, which was part of the Culver Viaduct Project. F & S Contracting demonstrated that it discontinued its work on the Smith Street Project before the subject accident occurred. As F & S was not an owner, contractor, or agent involved in the Culver Viaduct Project, had no responsibility for procuring or supplying the allegedly defective boom lift involved in the accident, and exercised no supervision or control over the plaintiff's work, it follows that F & S Contracting could not be held liable under any theory of liability asserted in the complaint Plaintiff’s opposition, based solely on the claim that F&S’s motion was premature, failed to raise a triable issue of fact. The Court’s decision emphasized that a party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Rather, there must be some evidentiary basis to suggest that discovery may lead to relevant evidence. Accordingly, defendant F&S’s motion for summary judgment dismissing the complaint and all cross claims against was granted in its entirety. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Louboutin's Ruby Soles May Soon Have More Company In Oz. August 15, 2011 < Back Share to: Christian Louboutin has made a good living understanding the psychology of shoes. His good fortune may be about to change. In Louboutin v. Yves Saint Laurent America, Inc., 11 Civ. 2381 (S.D.N.Y. Aug. 10, 2011), Louboutin sued YSL for trademark infringement of its famous red soles. After some initial discovery, Louboutin moved for a preliminary injunction stopping YSL from using red soles in an upcoming fashion line. To obtain a preliminary injunction, Louboutin had to show a "likelihood of success on the merits." In evaluating the history the red sole, the Court traced its history to "King Louis XIV's red-heeled dancing shoes or Dorothy's famous ruby slippers in 'The Wizard of Oz.' " The court also found that in fashion, color serves ornamental and aesthetic functions vital to competition. Accordingly, the court found that Louboutin's trademark was overly broad and its continuation would likely hinder competition. YSL did not move for summary judgment, but the court encouraged it to do so, and indicated on such a motion it would likely revoke Louboutin's trademark. We can bet that this decision won't die down quietly, and will be appealed, as the red soles are "fashion to die for!" Special thanks to Cheryl Fuchs for her contributions to this post. For more information about it, or WCM's intellectual property practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact