News Appellate Division Discusses Jury Instructions on increased Susceptibility and Failure to Mitigate Damages August 5, 2024 < Back Share to: In Anthony Rivera v. Elizabeth G. Kolsky, a recent decision from the Second Department helps to clear up the use of the increased susceptibility instruction given by the Supreme Court to the jury. The case also discussed the standard to be met to secure a jury instruction on failure to mitigate damages. Anthony Rivera was 30 years old in 2010, when he sustained personal injuries as a result of a motor vehicle accident. The injuries included a fracture of his hip, an injury to his knee and a preexisting back injury that was aggravated as a result of the accident. The Court granted the plaintiff’s motion for summary judgment on the issue of liability and the case proceeded to trial on damages. Over the defendant’s objection the Supreme Court granted the plaintiff’s request for an increased susceptibility jury instruction and instructed the jury as follows, “The fact that the plaintiff…may have a physical condition that makes him more susceptible to injury than the normal healthy person, does not relive the defendant of liability for all the injuries sustained as a result of her negligence. Defendant is liable even though those injuries are greater than those that would have been sustained by a normal, healthy person under the same circumstances.” The jury found in favor of plaintiff and award damages of $1,865,305.43, and the defendants appealed. The defendants argued that the jury instruction prejudiced the jury. The Court found that the increased susceptibility instruction did not refer to any condition specifically and was similar to that of the instruction for aggravation of a preexisting injury. On the issue of aggravation of the preexisting back condition, the jury found in favor of the defendants. Under these circumstances, the jury instructions did not affect the verdict. “A party seeking to avail itself of the affirmative defense of failure to mitigate damages must establish that the injured party failed to make diligent efforts to mitigate damages, and the extent to which such efforts would have diminished those damages.” In this matter, the defendants failed to meet that burden, and the Supreme Court therefore declined to instruct the jury on that issue. This case is relevant to our practice because it clears up the susceptibility instruction and the standard that we must meet to prove that plaintiff did not make diligent efforts to mitigate those damages. Rivera v. Kolsky .pdf Download PDF • 76KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Senior Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News Participation is Not Always Direction or Control under NY's Labor Law February 10, 2009 < Back Share to: Owners of one and two-family homes are typically exempt from Labor Law §240 and 241, except in situations where they “direct or control” the work. In Snyder v. Gnall, the Third Department in New York recently held that despite clear involvement by the owner in the construction project, his actions did not rise to the level of direction or control. The owner was identified on the building permit as the general contractor; he personally arranged for building inspections; he hired all contractors and sub-contractors; and he ordered and paid for certain building materials. However, because all of these activities took place pursuant to directions or recommendations set forth in plaintiff’s comprehensive proposal, the Court held the owner’s participation was not as significant to support the conclusion that he directed or controlled the work. The claims were thus dismissed. Snyder v. Gnall Previous Next Contact

News Unlimited WC Coverage Prevents Excess Coverage from Being Triggered (NY) January 11, 2018 < Back Share to: In Vincent & Sons Construction v. Century Surety Insurance, et al, the Second Department recently discussed the unlimited workers compensation coverage interacts with excess policies. This declaratory judgment action was brought by Arthur Vincent & Sons Construction seeking defense and indemnification from defendants Century Surety Insurance Company and Admiral Insurance Company in an underlying action wrongful death action, which arose during a project in which Fordham University hired Vincent Construction to install a new roof on one of its research buildings. As part of their contract, Vincent Construction agreed to indemnify Fordham against any claims arising out of Vincent Construction’s negligence and to carry comprehensive commercial general liability insurance naming Fordham as an additional insured. During the course of the project, one of Vincent Construction’s employees had a fatal accident, and his estate commenced a wrongful death action against Fordham. In turn, Fordham commenced a third-party action against Vincent Construction seeking contribution, common-law indemnification, and contractual indemnification. At the time of the accident, Vincent Construction was covered by three policies: (1) a worker’s compensation and employer’s liability policy issued by Commerce and Industry Insurance Company (“Commerce”) that covered common-law indemnification claims and excluded coverage for contractual indemnification claims, (2) a CGL policy issued by Century that covered contractual indemnification claims, and (3) an excess policy issued by Admiral that also covered contractual indemnification claims. After learning of the accident, only Commerce acknowledged coverage and provided Vincent Construction with defense, so Vincent Construction commenced this action to obtain a judgment declaring that Admiral was obligated to defend and indemnify it, and to defend and indemnify Fordham as an additional insured in the underlying wrongful death action. Admiral moved for summary judgment, arguing that it was not obligated to defend or indemnify Vincent Construction because Vincent Construction’s primary coverage under the Commerce policy was unlimited, so excess coverage could never be triggered. Vincent Construction argued that because the Commerce policy excluded claims for contractual indemnification, the Admiral policy provided it with excess coverage for those claims. The Supreme Court agreed with Vincent Construction, and declared that Admiral must indemnify Vincent Construction in the underlying action with excess, noncontributory coverage. Admiral appealed. On appeal, the Second Department noted that the Admiral excess policy stated that it provided coverage in the amount of the “ultimate net loss” in excess of the “underlying insurance limit.” The policy defined “underlying insurance limit” as the sum of the amounts of “other insurance” and “underlying insurance.” At issue for the Second Department was the meaning of “underlying insurance,” which the Admiral policy defined as “coverage(s) afforded under insurance policies, for the limits shown, as designated in the schedule of underlying insurance.” The schedule of “underlying insurance” listed Century’s CGL policy, but it did not list Commerce Workers’ Compensation policy. Despite this, the court explained that the coverage afforded under the Commerce policy was included in the “underlying insurance limit,” because it was considered “other insurance.” Here, the Commerce policy contained a New York Limit of Liability Endorsement providing Vincent Construction with unlimited coverage in cases where bodily injury to an employee arises in the course of employment. Because there was no question that the facts of the wrongful death action fell within the meaning of the endorsement, Admiral was correct that Vincent Construction’s primary policy provided unlimited coverage. Accordingly, the Second Department reversed the trial court, and held that by its “clear and unambiguous terms” the Admiral excess policy was not could be triggered for the wrongful death suit, regardless of the exclusion for contractual claims. Admiral's policy language governed, and the WC carrier is responsible for the entire underlying judgment, whatever that may be. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Plaintiff's Comparative Negligence Does Not Trigger an Employer's Contractual Indemnification Obligation (NY) September 7, 2012 < Back Share to: In a bid to trigger an employer’s contractual indemnity provision, some defendants are arguing that the plaintiff’s comparative negligence constitutes the employer’s negligence. While creative, this argument, as discussed by the Second Department in Arrendal v. Trizechahan, is flawed and does not comport with the intent of indemnity provisions. In Arrendal, the plaintiff, a Daisy Subway employee, was injured while placing garbage into a trash compactor. He commenced suit against Trizechahan, the owner of the building, who in turn filed a third party claim against Subway Real Estate Group for contractual indemnification. Subway Real Estate Group then sued Daisy Subway, the plaintiff’s employer. The indemnity provision in the lease provided that Subway Real Estate Group would indemnify Trizechahn from losses caused by an agent or licensee of Subway Real Estate, which plaintiff was. It also provided that Subway Real Estate would indemnify Trizechahn from losses caused by employees of Daisy Subway, which plaintiff was. Trizechahn argued that plaintiff’s comparative negligence constituted negligence and, thus, triggered Subway’s indemnity obligations. The Supreme Court bought this argument, but the Second Department did not. It held that the term "negligence," as employed by the lease does not encompass the comparative negligence of the injured plaintiff. Rather, the indemnification provision would only be triggered in the event of a finding of negligence by the indemnitor’s agent or employee for a tort committed against the plaintiff. Thanks to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NY 1st Dept: Plaintiff's Testimony Alone As To Lighting Insufficient To Defeat SJ November 10, 2009 < Back Share to: In Brodie v. Gibco Enterprises, Ltd., the plaintiff, a patron in the defendant’s restaurant, tripped and fell on a single step that separated the bar from the dining area. The plaintiff claimed that the lighting in the bar area was inadequate. The restaurant moved for summary judgment on the grounds that the area above the step was lit by a recessed lighting fixture in the ceiling and that the step neither was inherently dangerous nor constituted a hidden trap. The lower court granted the defendant’s motion and the plaintiff appealed. In affirming the decision, the First Department found that the plaintiff's testimony alone, without any other admissible evidence as to the sufficiency of the lighting or the inherent danger of the step could not defeat summary judgment. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm Previous Next Contact

News Court Examines Scope of Designated Premises (NY) April 10, 2013 < Back Share to: The standard Commercial General Liability policy provides liability coverage for the “Designated Premises” set forth in the policy’s Declaration Page. Those premises are customarily identified in the application for insurance submitted by the insured as part of the underwriting process. Many CGL policies expressly limit coverage to liability arising out of the Designated Premises. What happens when the insured contracts for a major expansion of those designated premises and a construction worker is injured while erecting the new, expanded space? More to the point, is that new space considered part of the Designated Premises covered by the owner’s CGL policy? There is no liability coverage for the owner according to the Appellate Division, First Department in Seneca Insurance v. Cimran Co., Inc. In Cimran, the owner submitted an application for insurance describing the premises as a one story building occupied by a billiard hall and health spa. After the policy became effective, the owner contracted to add three additional stories to the property and, according the plaintiff’s bill of particulars, a worker was injured on the fourth place at the construction site. Reaffirming “an ancient principle of insurance law,” the First Department, in the closely decided 3-2 decision, held that the fourth floor was not part of the insured premises and therefore was not covered by the Seneca policy. The insurer reasonably relied on the description of the premises set forth in the application, so the court reasoned that there could be no real dispute or confusion that coverage was limited to the one story building and did not include the three additional stories under construction. Given the two dissents, we expect the Court of Appeals, New York’s highest court, to review the Cimran decision in the future. Of note, it is unclear from the Appellate Division decision whether the Seneca policy expressly limited coverage to the premises designated in the policy’s declaration page. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News This (Watered Down) Bud's For You? (NJ) April 5, 2013 < Back Share to: First, the self-proclaimed King of Beers suffered the indignity of being purchased by a Belgian-Brazilain brewing company, InBev, in 2008. It now finds itself the target of a series of lawsuits filed throughout the country alleging that Anheuser-Busch cheated consumers by misrepresenting the alcohol content of its products. One such suit was filed in New Jersey by plaintiff Brian Wilson. The complaint highlights the sophisticated equipment used by the brewing company that can precisely measure the alcohol content, and claims that the company saves money by watering down the beer during the fermentation process. Because it is alleged that the alcohol content is lower than the amount represented on the bottle labels, the claim is that this practice violates the New Jersey Consumer Fraud Act, as well as other statutes. Frankly, with the incredible variety of specialty craft beers available in the marketplace, Bud drinkers do not strike me as discerning consumers. I think it is also doubtful that Bud buyers made their purchases aware of -- and based on -- the claimed alcohol content on the label, and that a potential 5% difference would have impacted their decision. But it will be interesting to see how this develops. If you would like further information, please write to Mike Bono. Previous Next Contact

News Saved By the Video - Notice Take Two (NY) July 7, 2016 < Back Share to: The issue of notice can be an effective defense in a premises liability action. However, it is the defendant's burden to establish that it neither created the alleged hazardous condition nor had notice in sufficient time to take action. In Parietti v Wal-Mart Stores, Inc. the sufficiency of those proofs was questioned. Plaintiff Dolores Parietti was allegedly injured when she slipped and fell on a wet spot near an ice machine inside a store operated by defendant Wal-Mart. In the lower court, defendant Wal-Mart moved for summary judgment, arguing that while water may have been present on the floor when the plaintiff fell, Wal-Mart was never advised of a wet condition on the floor before the accident, nor did the wet condition exist for a sufficient length of time prior to the accident such that Wal-Mart’s employees were able to discover and remedy it. Accordingly, Wal-Mart did not have actual or constructive notice of the condition. The motion court was unswayed by Wal-Mart's arguments and denied the motion. On appeal, the Second Department was more persuaded and found that Wal-Mart did establish its prima facie entitlement to judgment as a matter of law. Wal-Mart submitted evidence that that it was not advised of the wet condition on the floor and did not receive any written or oral complaints by customers or employees concerning water on the floor or a leak in the ice machine prior to the accident. But perhaps, most significantly, it offered video surveillance recordings that effectively demonstrated, at least to the appellate court's satisfaction, that its employees, as per protocol, monitored the conditions at the front entrance of the store in the area where the injured plaintiff fell only minutes before her accident, and no wet condition was observed. The Court noted that “mere reference to general cleaning practices . . . is insufficient to establish a lack of constructive notice" in the absence of evidence regarding specific cleaning or inspection of the area in question. However, since Wal-Mart’s evidence was found sufficient, the lower court’s decision was reversed and Wal-Mart’s motion for summary judgment was granted, dismissing the complaint against it. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Reasonable Excuse and Meritorious Defense Leads to Reversal of Unopposed Summary Judgment Award June 14, 2024 < Back Share to: In Charles v. Nouveau El. Indus., Inc. , the 2nd Department recently addressed the standard to vacate an order for summary judgment in an unusual case where the trial court never received briefs served on other counsel and treated the motion as unopposed. In that case, the plaintiff sustained injuries after she tripped while entering an elevator due to an alleged 2-inch height difference between the elevator door and the floor of the medical center. Following discovery, the defendant elevator repair company moved for summary judgment. Plaintiff claims that she served her opposition to the defendant via email and to the Supreme Court via mail. Defendant similarly served its reply to plaintiff via email and to the court via mail, but the court never received the papers and granted the motion as unopposed. The trial court subsequently denied plaintiff’s motion to vacate the original order. The Second Department observed that to challenge the order, plaintiff must establish a reasonable excuse for the default and that there is a potentially meritorious opposition to the summary judgment motion. The Appellate Division reasoned that, “a court has [the] discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation." Since defendant did not oppose the lower court’s determination that plaintiff established a reasonable excuse for there not being an opposition on the record, the Second Department found that plaintiff’s opposition established a triable issue of fact as to whether the defendant had actual or constructive notice of the hazardous elevator floor condition. Accordingly, the Court reversed the decision of the trial court and denied defendants summary judgment motion. This case is noteworthy in that an appellate court was willing to overturn an award of summary judgment on an unopposed motion because plaintiff was able to demonstrate that it did prepare a timely opposition and was able to demonstrate issues of fact to defeat the motion. Maintaining a proper record of service of the briefs was critical to the plaintiff’s success in overturning the trial court’s rulings. Charles v. Nouveau .pdf Download PDF • 1.17MB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News No Duty Of Care While Freezing Rain Still In The Air (PA) November 18, 2022 < Back Share to: A Pennsylvania trial court granted summary judgment in a premises liability case where the plaintiff slipped and fell during an ongoing storm of rain and freezing rain, thereby reaffirming that a property owner has no obligation to remove all of the ice from its premises while the icy precipitation continued to fall. In Nunez v. Johnson & Johnson, Henry Nunez was employed by Allied Universal as a security guard at a FedEx warehouse in Tobyhanna, Pennsylvania when he arrived for work at approximately 1:50 p.m. to begin his work shift and parked in a parking area along the roadway within the facility, behind several other vehicles. As he exited his vehicle, he slipped and fell on ice. On that date of the incident, it had been raining throughout the day with periods of freezing rain. Weather records indicate that there was freezing rain, mist, and other unknown precipitation in the immediate area from just after midnight that day until at least 2:34 p.m., which was after Nunez fell. Throughout that period of time, rain and icy rain was falling, temperatures were under the freezing mark, and icy conditions existed on roads and parking areas. Nunez himself confirmed there had been icy rain falling that day before he went to work, that it continued when he left for work at approximately 1:30 p.m., and during his drive to work. Further, when he arrived at work, the icy rain event was still ongoing. Plaintiff sued the snow and ice removal contractor (SRI), who had been actively engaged in efforts using various types or remediation machinery, including graders, plow trucks, wheel loaders and manual shoveling. SRI’s work began on the day before the loss and continued throughout the day and night of the 17th. The icy storm event was of a long duration. Based on this, the Court granted the motions for summary judgment to all Defendants. Nunez was considered a business invitee, and thus, the duty of care to a business invitee regarding conditions on the land will be breached only if: (1) the defendants know or by the exercise of reasonable care could have discovered the conditions and realized that they involved an unreasonable risk of harm to the invitee; (2) defendants should expect the plaintiff will not realize or discover the danger or will fail to protect himself from the danger; and (3) defendants fail to exercise reasonable care to protect plaintiff from the danger. Regarding snow and ice on a walkway, it is an impossible burden to require that walkways always be free and clear of ice and snow. The issue is whether or not defendants acted reasonably under the circumstances. Wentz v. Pennswood Apartments, 518 A.2d 314 (Pa. Super. 1986). Here the Court concluded that no duty of care was breached. “A landowner [or occupier of land] has no obligation to correct conditions until a reasonable time after the winter storm has ended.” Similarly, SRI, who was actively engaged in treating the icy conditions elsewhere on the property, cannot be held responsible for keeping the location where Nunez fell completely clear of ice at all times while there was an active ice storm occurring. The Court found that summary judgment was also appropriate due to the lack of proof of hills and ridges where Plaintiff fell. Under Pennsylvania’s Hills and Ridges Doctrine, where generally slippery conditions exit, a plaintiff must prove: (1) that snow and ice had accumulated in ridges and elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians; (2) that the property owner had notice, either actual or constructive, of the existence of such conditions; and (3) that it was the dangerous accumulation of snow and ice that caused the plaintiff to fall. Gilligan v. Villanova University, 584 A.2d 1005 (Pa. Super. 1991). Here, it was indisputable that generally slippery conditions existed. Nunez fell on a patch of ice by his vehicle. He described a sheet of ice from his car all the way to the building where he worked. He was unable to describe any hills or ridges that accumulated, thereby rendering summary judgment appropriate under the Hills and Ridges Doctrine. The court appropriately applied existing Pennsylvania caselaw to this case and does not alter existing obligations on landowners and contractors hired to perform premises snow removal/maintenance. Thanks to James Scott for his assistance in this post. Should you have any questions about this case, please feel free to contact Tom Bracken. Previous Next Contact

News “Today is not Groundhog Day”: EDPA Addresses Continual Case Deadline Extensions (PA) May 13, 2021 < Back Share to: While we are all feeling the toll of endless repetitive days of working from home and COVID-19 restrictions, the Eastern District of Pennsylvania in a recent case reminded the parties that, at least in court, an endless loop of resetting deadlines is not acceptable. In the recently decided case, Allstate Property and Casualty Insurance Co. v. Dynamic Solutions Worldwide, LLC, a 2019 house fire led to a lawsuit and subsequently to a declaratory judgment action. The first scheduling order was issued on September 1, 2020, setting an expert discovery deadline of January 29, 2021. The defendant filed for multiple extensions, which were granted on the basis that the need for an electrical expert was unknown to the defendant until the plaintiff produced its own electrical expert. After extensive discovery and multiple “resets” of the deadlines for expert disclosure and discovery, the plaintiff filed a motion to preclude defendant’s expert as the defendant had failed to adhere to the latest deadline of May 10 – a full four months after the original expert discovery deadline. In its analysis, the court made light of the time loop-like nature of the deadlines, noting that “today is not ‘Groundhog Day,’ and the Court is not Bill Murray. Unlike the comedic film, a civil litigant cannot expect a redo of the deadlines every time the alarm clock sounds their expiration.” But in deciding to grant the plaintiff’s motion, the court showed that preclusion is no laughing matter, stating that “when the Court runs out of carrots, sometimes it must reach for a stick.” This lighthearted take on a draining process shows the importance of not taking extensions for granted and sticking to expert deadlines – even when each day feels like the one before! Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Show Me the Money!! Court Unseals Settlement In Wrongful Death Actions (NY) May 15, 2013 < Back Share to: 22 NYCRR 2.1.1(a) provides that courts shall not seal court records except upon a written finding of good cause. The rule also requires courts to consider the interest of the public as well as the parties in determination whether good cause has been shown. In this regard, the presumption of public access to court proceedings takes precedence, and the sealing of court papers is permitted only to serve compelling objectives. In Matter of East 51st Street Crane Collapse Litig., the Supreme Court sealed a settlement in one of many wrongful death actions arising out of a crane collapse until all of the wrongful death actions were settled. With one wrongful death action still pending, the Supreme Court sealed the documents. On appeal, the defendants argued that sealing the records prevents the risk that the parties will attempt to use prior settlement information as an artificial threshold in valuing their own cases. In response, the plaintiffs contended that unsealing the settlement documents were necessary to enable them to ascertain the available insurance coverage and thus make informed decisions as to the benefits and drawbacks of settling their own claims. The First Department agreed with the plaintiffs and affirmed. Special thanks to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact