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News A Synysta Labor Law Case (NY) June 10, 2021 < Back Share to: Volodmyr Synysta v. 450 Partners LLC, NY Slip Op. 50508(U), 2021 WL 2213821 (Kings County, May 20, 2021) is a Labor Law action. Plaintiff brought Labor Law §§240(1), 241(6), 200, and common law negligence claims against various parties for injuries sustained after falling from a scaffold at a construction site. In the instant motion, Plaintiff sought summary judgment on his §§ 240(1), 241(6) claims against the owner and general contractor of the premises (“defendants”). Plaintiff claims he fell from a Baker’s scaffold after being shocked by an electrical box, which he grabbed onto while painting. His §240(1) claim was supported by testimony that the scaffold did not have any ropes or other devices to tie off the scaffolding, and that the scaffold did not have any safety rails. Plaintiff also claimed that even if there were safety rails, they were not adequate in preventing the fall. Plaintiff’s §241(6) claim was supported by testimony that there were live wires in the workspace, and defendants failed to warn the workers about the live wires. In response, defendants argued, inter alia, that the issue of whether a safety device provided proper protection is a triable issue of fact within the jury’s purview. They argued Plaintiff’s supporting evidence was insufficient to prevail on summary judgment, since he did not submit any evidence or expert report about the adequacy (or deficiency) of the scaffold’s safety measures for the work being performed. The defendants also asserted the scaffold did not fail, and that issues of fact exist about whether the scaffolding had safety rails, and if so, whether Plaintiff used them or failed to adjust them properly. Defendants further maintained there was an issue of fact as to whether Plaintiff was the sole proximate cause of the accident, based on testimony he chose not to use an accessible ladder. Furthermore, defendants asserted Plaintiff did not need to grab the electrical box to perform his painting task. Based on the foregoing, the Court denied Plaintiff’s motion for summary judgment as to both his §§240(1), 241(6) claims. As to the former, the Court noted that, generally, the issue of whether a particular safety device provided proper protection is a question of fact for the jury. A fall from a scaffold does not establish, in and of itself, that proper protection was not provided. Defendants properly raised issues of fact about the existence of safety rails on the scaffolding, including whether safety rails would have prevented Plaintiff's fall. As to the latter, the Court noted that the alleged Industrial Code violations do not unequivocally translate into a granting of summary judgment in every situation. Rather, the Industrial Code violation constitutes some evidence of negligence and “thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” Based on a plain reading of this decision, the main takeaway from Synysta is that a Labor Law § 240(1) claim can be defeated at the summary judgment stage when genuine issues of fact exist about the adequacy of the safety measures employed. As to Plaintiff’s § 241(6) claim, however, it is unclear whether the Court properly denied summary judgment. If Plaintiff properly proved violations of the specified Industrial Code provisions, perhaps the Court misinterpreted the guidance in Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343 (1998). If so, it would be unsurprising if an appeal followed. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Wrap Up Exclusion Ambiguity Renders Provision Null April 19, 2017 < Back Share to: A federal judge in the District Court of Connecticut issued a decision that should serve as a warning to insurers that policy provisions may be rendered useless if the terms are ambiguous by a “reasonable layperson.” In Thompson v. National Union Fire Insurance Co. of Pittsburgh, PA., plaintiffs sought insurance coverage from National Union for the $13.5 million judgment awarded against National Union’s insured. The underlying action involved an explosion at a natural gas power plant in 2010. National Union disclaimed coverage based upon an endorsement that provided, “[t]his insurance does not apply to…any liability arising out of any project insured under a ‘wrap-up’ or similar rating plan,” arguing that the consolidated insurance program that the project was insured under was plainly the type of “wrap-up” program the endorsement specifically excluded from coverage. The Court disagreed, holding that “[i]f defendant wanted to exclude coverage for any project that “involves” a wrap-up of is in any way affiliated with a consolidated insurance program, it should have explicitly included such limitations and defined the term “wrap-up.” The Court found that while “insurance experts and attorneys” could familiarly discuss the meaning of ‘wrap-up’ or ‘rating plan’, the fact that a “reasonable layperson” would not understand the terms or their coverage implications was fatal, and meant that the ambiguity had to be resolved in favor of the insured and against the insurer. This decision is a reminder that additional definitions, explanations and precision, particularly with respect to exclusions and endorsements, will benefit the insurers and the insureds, and may provide clarity as to questions of coverage. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Specificity and Clarity Required in Big Apple Maps March 24, 2009 < Back Share to: In 1982, plaintiffs' tort lawyers created Big Apple Pothole & Sidewalk Protection Committee to keep track of sidewalk defects in the five boroughs. The company periodically files "Big Apple maps" with the City of New York in an attempt to provide the city with the legally required notice of sidewalk, curb and crosswalk defects necessary to sustain negligence claims. In two recent cases that reached the Court of Appeals, the Court ruled that the symbols on Big Apple maps must be clear in their representation of the defect and the plaintiff's case must show that the fall was caused by that particular defect. In D'Onofrio v. City of New York, the symbol of a raised sidewalk was clear, but the plaintiff claimed that he fell on a grate or broken concrete. Since there was no evidence of an uneven sidewalk on the map, the Court rejected the jury verdict in favor of the plaintiff and dismissed the case as a matter of law. In the companion case of Shaperonovitch v. City of New York, the plaintiff alleged a fall on a raised sidewalk. The Court found the symbol at that location was ambiguous and did not indicate an elevation. The Court rejected the jury verdict in favor of the plaintiff. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09860.htm Previous Next Contact

News The First Department Wants You To Think Twice Before Hitting Send (NY) October 20, 2021 < Back Share to: Reaching a settlement via email is easier than you think, so be careful. In a recent decision by New York’s First Department, an email reflecting an agreement between attorneys is sufficiently subscribed for purposes of CPLR §2104 even where the attorney does not retype their name above the signature block. In Philadelphia Insurance Indemnity Company v. Kendall, 197 A.D.3d 75 (1st Dep’t 2021), an insurer petitioned to enforce a settlement agreement and vacate an arbitration award related to an underinsured motorist claim brought by an employee of the insured. The employee settled a claim with an underinsured third-party and later made a claim under a Supplementary Underinsured Motorist Benefit Provision in their employer’s automobile policy with the insurer. The employee and the insurer proceeded to arbitration where the employee was awarded $975,000. However, despite the arbitration decision being sent the parties’ counsel, neither counsel received the decision and they continued to negotiate a settlement. Consequently, the parties agreed to settle the dispute for $400,000. After reaching a settlement, the employee’s counsel memorialized the agreement in an email; at the bottom of the email appeared “Sincerely,” followed by counsel’s name and contact information within the signature block. In response, insurer’s counsel replied with an email containing a Release and Trust Agreement to be signed by the employee. Subsequently, the employee’s counsel received the arbitrator’s decision and indicated that they would not proceed with the $400,000 settlement. Instead, they demanded payment of the $975,000 awarded by the arbitrator. Insurer petitioned to enforce the settlement agreement and to vacate the arbitration award. However, the Supreme Court denied the insurer’s petition finding that the employee’s attorney failed to subscribe his email because he did not retype his name to supplement the signature block. The insurer appealed to the Appellate Division. On appeal, the First Department reversed the Supreme Court’s ruling and held that the settlement agreement was enforceable. Pursuant to CPLR §2104, a stipulation between parties or their attorneys is not binding upon a party unless it is in a writing subscribed by him or his attorney. The First Department explained that the Court of Appeals has not opined on whether emails can satisfy CPLR §2104, and that the issue on appeal was a matter of first impression. The First Department held that the distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is practiced today. Essentially, it is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Accordingly, the First Department reversed the Supreme Court’s ruling. Thanks to Drew Fryhoff for his contribution to this post. Should you have any questions, please feel free to contact Thomas Bracken. Previous Next Contact

News No Duty on Landlord to Protect Against Staircase Full of Urine August 3, 2010 < Back Share to: Plaintiff slipped in a puddle of urine in the staircase of her building owned by the New York City Housing Authority. The plaintiff had affidavits from several nonparty witnesses who alleged that urine puddles in the staircase were a recurring problem. However, the plaintiff failed to disclose the names of those witnesses. As such, the court granted the Housing Authorities' motion for summary judgment, finding that the plaintiff failed to show that the building owner had actual or constructive notice of the gross and hazardous condition. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06235.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

News NY Appellate Division Rules Address of Defendant Corporation Determines Venue February 22, 2010 < Back Share to: In Biaggi & Biaggi v. 175 Medical Vision Properties LLC, plaintiffs brought suit for breach of contract and fraud in Westchester County. Defendants cross-moved for a transfer of venue to Kings County, which the lower court granted. Plaintiffs appealed the transfer of venue on the basis of CPLR 510(1) and 510(3). They argued that venue is proper in any county in which any of the parties resided at the time of commencement, and that the corporate defendants were residents of Westchester County at the time of commencement. Plaintiffs produced the corporate defendants certificate of incorporation, demonstrating a principal office address in Westchester County. Corporate defendants produced no evidence that the certificate was incorrect or had otherwise been amended and thus the Appellate Division held that Westchester was the proper venue for the action. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01448.htm Previous Next Contact

News Food Safety Laws Still Delayed. August 25, 2012 < Back Share to: There is no news to report on the status of the new FSMA regulations. As this WAPO op-ed makes clear, there is no "true" explanation for the delay, but politics seems to be the root cause. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News 2nd Circuit Clarifies Article III Standing Based on "Increased Risk" of Identity Theft (NY) April 30, 2021 < Back Share to: Earlier this week, the Second Circuit issued a significant ruling with respect to the unauthorized disclosure of sensitive personal identifiable information (“PII”). Federal circuits have been split with respect to whether an increased risk of identity theft following a data breach, without proof of actual harm, is sufficient to confer Article III standing. The decision in McMorris v. Lopez & Assoc., officially clarifies the issue for the Second Circuit. Plaintiff-appellant Devonne McMorris commenced a class action lawsuit against defendant-appellees Carlos Lopez & Associates, LLC (“CLA”) in response to an email that a CLA employee inadvertently sent to all of CLA’s employees. This email contained the sensitive PII – i.e., Social Security numbers, home addresses, dates of birth, phone numbers, dates of hire and educational degrees – of about 130 former and current CLA workers, including McMorris. After discovering the breach, CLA emailed its current employees, but did not contact any former employees regarding the inadvertent disclosure or take any other corrective action. Plaintiffs asserted state law claims of negligence, negligence per se, as well as statutory consumer protection violations on behalf of classes in California, Florida, Texas, Maine, New Jersey and New York. The plaintiffs also claimed CLA “breached its duty to protect and safeguard [their] personal information and to take reasonable steps to contain the damage caused where such information was compromised.” Due to the PII disclosure, plaintiffs asserted they faced an imminent risk of identify theft and becoming victims of “unknown but certainly impending future crimes.” In response to the complaint, CLA moved to dismiss for, inter alia, lack of Article III standing. The United States District Court for the Southern District of New York agreed with CLA and dismissed McMorris’ claims for lack of subject-matter jurisdiction as McMorris failed to allege an injury-in-fact sufficient to confer Article III standing. McMorris appealed to the 2nd Circuit, asserting that the increased risk of identity theft confers Article III standing. The Second Circuit focused on whether the plaintiffs sufficiently alleged concrete, particularized, and actual or imminent injury. The Court considered three non-exhaustive factors: (1) whether the data at issue was comprised as a result of a targeted attack intended to obtain the plaintiffs’ data; (2) whether the plaintiffs could show some misuse of their compromised data, even if the plaintiffs have not yet experienced theft or fraud; and (3) whether the type of disclosed data subjects plaintiffs to a perpetual risk of identity theft or fraud. While the Second Circuit recognized the information CLA divulged renders plaintiffs more exposed to future identity theft or fraud, plaintiffs failed to establish "imminent injury." In addition, the Second Circuit determined the plaintiffs had no standing because they failed to show their PII was subject to a targeted data breach, or that any entity misused their PII. This decision is significant. Although the Court agreed with the district court’s holding that McMorris failed to establish an injury in fact, the Court held that Article III injury in fact standing only requires proof of a substantial risk of future identity theft or fraud. A substantial risk may be sufficient to establish Article III standing, even if the plaintiff has not been a victim of identity theft or fraud. The 2nd Circuit's thorough decision gives insight to future litigants regarding the required legal standard in this jurisdiction. Thanks to Lauren Berenbaum for her contribution to this post. Please email Brian Gibbons with any questions about the ruling, or WCM’s data privacy and cyber-liability practice. Previous Next Contact

News Expected Rise in Class Action Lawsuits in Wake of to COVID-19 April 3, 2020 < Back Share to: There will likely be an increase of class action lawsuit filings following the COVID-19 mandatory closures and shelter at home orders. On March 26, 2020, Plaintiff Mary Namorato brought a class action lawsuit against Town Sports International, LLC, and Town Sports International Holdings, Inc. d/b/a New York Sports Clubs (collectively “TSI”). TSI operates numerous gyms under the brands New York Sports Clubs, Boston Sports Clubs, Washington Sports Clubs and Philadelphia Sports Clubs. Namorato claimed that TSI continues to charge its members monthly fees despite being closed due to the New York State’s order closing all non-essential businesses. Namorato asserted claims against TSI for consumer fraud in violation of New York General Business Law §349 and §624, as well as common law breach of contract. The complaint alleges that “TSI has also made it virtually impossible for members to cancel their memberships and has refused to honor many members’ cancellation requests. NYSC has a long history of refusing to honor member cancellation requests, but it is particularly reprehensible in this moment.” Unlike many other businesses that are freezing memberships and fees amidst the coronavirus pandemic and subsequent business closures, New York Sports Club is not automatically freezing or cancelling memberships. Namorato claims that New York Sports Club ceased providing gym services or accessibility on March 16, 2020, and despite her efforts to cancel her membership, she has been unable to do so. The complaint states that TSI “breached their contracts with Plaintiff and/or the Class by refusing to allow Plaintiff and/or the Class to cancel their memberships at any time.” It is probable that more class action lawsuits will follow this trend, as similar class actions have already been filed against 24 Hour Fitness in the Northern District of California, and LA Fitness in the Southern District of Florida. Thanks to Emily Finnegan for her contribution to this post. Please email Heather Aquino for her contribution to this post. Previous Next Contact

News Inappropriate Juror Behavior Strikes Again November 4, 2021 < Back Share to: Several months ago, we reported on the inherent pitfalls of social networking sites, such as facebook, in the realm of jury instructions. http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=539 That case involved a Bronx arson trial, which nearly resulted in a mistrial due to a juror trying to "friend" a trial witness. Facebook and other avenues cyber-contact are obviously the most recent and technological means of potentially inappropriate juror contact. Nevertheless, it would appear that good old-fashioned note passing is still alive and well in Connecticut. In the well-publicized home invasion murder trial currently pending in New Haven Superior Court, an alternate juror purportedly passed a note to a court officer, suggesting that the two meet over the weekend. Rather than play it safe and check the "maybe" box, as a few of us may have in the 7th grade, the court officer immediately (and wisely) turned the note over to the judge. Judge Blue called the note a "spectacular display of poor judgment" on the juror's part, but thankfully elected to continue the proceedings, rather than grant the defense request for a mistrial. http://www.nypost.com/p/news/local/report_juror_love_note_deliberations_xUOlv2OJVDwdx0VNH4Z8bO The lesson to be taken here is the inherent unpredictability in jury trials. This alternate juror appears to have completely ignored judicial instructions to refrain from contacting persons involved in the proceeding -- in a tragic, home invasion murder trial. If a juror would ignore instructions in a capital trial such as this one, it is not difficult to imagine equally inappropriate, and potentially more damaging juror behavior in a civil action involving admittedly much less serious allegations. To paraphrase former pitcher Joaquin Andujar's comment on baseball, one can summarize jury trials in one word - "you never know." Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact

News Punitive Damages Claim Deemed NOT Excessive By PA Supreme Court, Despite Being Over 10 Times The Amount Of Total Compensatory Damages July 28, 2023 < Back Share to: The Pennsylvania Supreme Court recently upheld a Superior Court ruling which held that punitive damages in the amount of $2.8 million dollars was not unconstitutional, endorsing a “per-defendant” approach of calculating the ratio of punitive to compensatory damages. In The Bert Company d/b/a Northwest Ins. Services v. Matthew Turk, et al., Defendants Matthew Turk, First National Insurance Agency, LLC, First National Bank, and FNB Corporation appealed the Superior Court’s order, which held that a jury’s award of punitive damages was constitutional. The Supreme Court upheld that order, endorsing the “per-defendant” approach of calculating the punitive to compensatory damages ratio. Plaintiffs allege defendants Turk and First National poached plaintiff Northwest’s employees, who were under non-solicitation agreements with First National. Turk and First National allegedly sought both to acquire key employees and their books of business and to takeover Northwest’s business. When the jury in the case ultimately found in favor of Northwest, it granted a verdict of $250,000 in compensatory damages and $2.8 million in punitive damages. The jury split the damages among the four Defendants, with amounts of between $300,000 and $1.5 million being allocated to each. The Defendants argued the constitutionality of the jury’s award of punitive damages to Northwest. Namely, they argued the Due Process Clause of the Fourteenth Amendment to the US Constitution prohibits, as grossly excessive, the punitive damages awarded, on the grounds that the aggregate ratio of punitive to compensatory damages was 11.2 to 1, which, the Defendants alleged, was an unconstitutionally excessive award. The Defendants’ argument was that in calculating this ratio, the trial court should have aggregated all punitive damages imposed. The trial court, however, computed the ratio using the amount of punitive damages assessed against each Defendant compared to the compensatory damage imposed on that defendant—it had adopted a “per-defendant” approach. Both the Superior Court and the Supreme Court ultimately endorsed this approach, with the Supreme Court holding that the per-defendant approach assesses the individualized impact intended by the punitive damages award, which better accounts for the impact of the award on a defendant’s right to due process, as is required in analyzing an award’s constitutionality. The Supreme Court also noted that although it was endorsing a per-defendant approach, the 11.2 ratio that would come from a per-judgment approach would not be per se unconstitutional under the US Supreme Court’s decision in State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003). The Supreme Court held that the State Farm decision did not state that any ratio over 10 to 1 is unconstitutional—rather, the State Farm decision stated that higher ratios should trigger closer judicial scrutiny. In generally endorsing the trial court’s approach, the PA Supreme Court highlighted that the U.S. Supreme Court has warned against setting a “bright-line” or concrete limit on punitive damages. A single digit ratio test of State Farm is non-binding. Thanks to Erin Gallagher for her assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Time's Up: Insurer Cannot Rely on Policy Limitation to Disclaim Coverage Because of Failure to Timely Notify Insured April 26, 2024 < Back Share to: In Reidy Contracting Group, LLC v. Mt. Hawley Insurance Company , the Western District of New York analyzed the scope of New York Insurance Law §3420(d), which requires a liability insurer to give written notice of a disclaimer of coverage to the insured “as soon as is reasonably possible.” 2024 WL 1345704 (W.D.N.Y. Mar. 29, 2024). Mt. Hawley first disclaimed coverage to general contractor Reidy, its additional insured, for a construction injury lawsuit in February of 2012. Id. at *2. Nine years later, Mt. Hawley cited a policy limitation for bodily injury arising from an additional insured’s negligence as another basis for disclaimer (the “Limitation”). Id. Reidy and its excess carrier asserted that Hawley’s reliance on the Limitation was untimely pursuant to §3420(d). Id. Mt. Hawley contended that Reidy’s settlement in the underlying lawsuit reflected that it had no actual interest in coverage, meaning Reidy’s excess insurer was the “real party in interest.” Id. The Court disagreed, holding that Reidy’s request for a declaration of entitlement to coverage in the instant matter constituted an “actual interest” in coverage. Id. at *3. Mt. Hawley next argued that its disclaimer was based on a lack of insured status, rather than on a policy exclusion. Id. Mt. Hawley asserted that the policy restricted additional insured status to entities with liability arising from “general supervision of the named insured’s work.” Id. The Court found the policy language was not so limited—it also extended additional insured status to entities “required by written contract” to receive coverage for work-related liability. Id. at *4. Considering these conditions and the Limitation together, the Court concluded the Limitation constituted an exclusion to coverage. Id. Finally, Mt. Hawley asserted it could not have timely disclaimed because the Limitation required evidence that Reidy was “actively at fault,” a question of fact “bound up with the merits” of the underlying lawsuit. Id. at 5. However, the Court emphasized that no relevant caselaw suggested an insurer could not “deny coverage when extrinsic evidence shows that coverage is unavailable.” Id. In sum, the Court found Mt. Hawley failed to provide timely notice to Reidy under §3420(d) and could not disclaim under the Limitation. Id. at 6. Reidy Contracting Group LLC v. Mt Hawley Insurance Company .pdf Download PDF • 245KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact