News Owner Not Liable For Unforeseeable Criminal Acts June 19, 2012 < Back Share to: In Rodriguez v. Camaway Realty Inc., Rodriguez was allegedly attacked by an intruder while at the defendant’s building and sued Camaway under a general negligence theory. The lower court denied Camaway’s motion for summary judgment. However, the appellate court reversed based on a finding that the alleged criminal activity was unforeseeable. Both parties testified that they knew of no prior criminal activity at the premises. Rodriguez did submit an affidavit from the building superintendent who stated that he had previously been struck by a tenant’s boyfriend, but the court noted that such an attack was insufficient to establish the necessary notice of prior criminal activity. Therefore, the court held that the attack on Rodriguez was unforeseeable as a matter of law. Thanks to Sandy Debbas for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2012/2012_04410.htm Previous Next Contact

News The New Normal (NY) August 21, 2020 < Back Share to: The New York Supreme Court Commercial Division has enacted a new rule that allows attorneys to request permission to appear remotely before commercial judges based on a showing of a good cause. The new rule is a clear shift from the status quo of courts operating on an ad hoc basis filled with administrative court adjournments and trial delays. However, what separates the Commercial Division's new rules from most other courts is that it provides attorneys with more autonomy to facilitate the progress of their client’s cases on the trial calendar. It is now incumbent on courts to allow a transition to a more digital platform by allowing remote participation and paperless submissions. We can safely assume that we are in the new normal, and the idea of returning back to pre-covid days any time soon is just a pipe dream that only delays bureaucratic operations even more than they were before the pandemic. Attorneys and court staff continue to acclimate themselves to the new changes and adapt to attending hearings and conferences remotely. Thanks to James Papadakis for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Hard Driving Employer Not Liable for Exhausted Employee's Tort April 6, 2009 < Back Share to: In Riley v. Keenan, the plaintiff was injured by a sleepy, drunk driver. The plaintiff sued the driver's employer, claiming that the employer overworked the driver to the point of exhaustion and was thus responsible for the happening of the accident. The court threw out the claim, noting that the driver was not acting within the scope of his employment at the time of the accident. The court added that the driver's choice to drink was an intervening act that broke any connection between work fatigue and the accident. www.judiciary.state.nj.us/opinions/a6054-06.pdf Previous Next Contact

News Sexual Relationship With Tenant Outside the Scope of Tenant Advocate's Employment. October 11, 2011 < Back Share to: In [i]Larson v. Cooper Square Comm. Develop. Committee & Bus. Assoc., Inc.[/i], 11243/11, NYLJ 1202517524591 (Sup. Qu. Sept. 26, 2011), plaintiff claimed that she was sexually assaulted by a tenant advocate for Cooper Square Development Committee and Businessman's Association. Specifically, the plaintiff claimed that she had nonconsensual sex with the advocate on 12 occasions when he made home visits to her apartment in Cooper Square. Plaintiff asserted that Cooper Square was liable under the respondeat superior theory. The court found that the advocate's actions were outside the scope of his employment. The fact that it was part of the advocate's employment to make home visits did not bring the acts of the sexual assaults or sexual relationship into the scope of the employment. The acts were not done in furtherance of Cooper Square's business and were a departure from the acts of a tenant advocate and, thus, outside the scope of his employment. The court dismissed the negligent hiring, retention and supervision claims against Cooper Square because plaintiff could not establish that Cooper Square knew or should have known about the advocate's alleged tortious propensities. Special thanks to Cheryl Fuchs for her contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

Long Island Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – Long Island WCM established its Long Island office in 2019, with resident partner Brian Gibbons leading the team. Strategically located to serve clients throughout Nassau and Suffolk Counties, the office enhances our ability to deliver responsive, high-quality legal services across a range of practice areas—including liability defense, insurance coverage, fraud investigation, and professional liability. Our attorneys bring deep experience in both trial and appellate work. They are committed to meaningful collaboration with clients, strong courtroom advocacy, and upholding the highest standards of professional integrity. Contact Details 1 Old Country Rd # 318, Carle Place, NY 11514, USA 516 873 0011 516 873 0120 Attorneys and Professional Staff Patrick J. Argento Counsel Steven F. Goldstein Of Counsel Gina M. Arnedos Partner Taylor Mitarotonda Senior Associate Ashley R. Corcoran Associate Corey Stein Associate Brian Gibbons Partner

News Common Owners Get Hit With Joint Liability (PA) May 6, 2022 < Back Share to: In a recent case from the Eastern District of PA, Snyder v. Hunt, the court granted plaintiff’s appeal for a directed verdict after finding plaintiff established a prima facie case of premises liability against common landowners. Evidence provided multiple owners of a driveway extending between two rows of houses and enjoyed an easement over the driveway in common with other abutting owners, would all be jointly and severally liable in the absence of an agreement to the contrary. Thus, all were responsible for the maintenance and repair of that portion of the driveway abutting or located on his/her land. Mscisz v. Russell, 487A.2d 839 (Pa. Super. 1984). The plaintiff in the case tripped and fell while crossing a common driveway at an apartment complex owned by the defendants. The subsequent case was based on a negligence claim alleging that the owners have a duty to maintain the sidewalk and they breached the duty, The defect was a hole in the pavement. The driveway was a common driveway owned by several different parties and the city, and all the defendants filed cross-motions for indemnification and contribution against each other. On remand, the court held that the trial court should direct verdicts against all defendants. Additionally, because the plaintiff was not contributorily negligent, the Fair Share Act, did not shield the defendants from common law joint and several liability. This case is a good reminder to counsel to examine all cross claims against potential third parties, as well as the plaintiff if contributorily negligent. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News US Supreme Court Ruling Lowers Bar For Arbitration Waivers (NY) June 17, 2022 < Back Share to: The Supreme Court of the United States recently ruled against an employer seeking to enforce an arbitration clause in the case of Morgan v. Sundance, Inc. Plaintiff Morgan worked at a Taco Bell franchise owned by defendant and signed an agreement to arbitrate any future employment disputes. However, she later filed a class action lawsuit against the defendant for alleged overtime violations. Following the action, Sundance initially filed a motion to dismiss, which was denied by the District Court, and later participated in an unsuccessful mediation with plaintiff. Defendant did seek to enforce the arbitration agreement until eight months after the lawsuit was filed, moving to stay the lawsuit and compel arbitration. Morgan’s attorneys argued that defendant had waived its right to arbitrate by litigating for an eight-month period. The District Court denied defendant’s motion, but the Eighth Circuit reversed, holding that a party waives their right to arbitration if they (1) knew of the right to arbitrate, (2) acted inconsistently with that right, and (3) prejudiced the other party by their inconsistent actions. The Eighth Circuit found that the second and third elements were not met; particularly that Morgan was not prejudiced by the delay because no discovery was conducted, and she would not need to duplicate efforts for the arbitration. Focusing on the prejudice requirement, the Supreme Court reversed and unanimously held that the lower courts cannot require a showing of prejudice to waive arbitration rights. The Court reasoned that when courts decide waivers, they typically focus on the actions of those who control the rights and not on how those actions affect the opposing party. The Court held that the Federal Arbitration Act was designed to ensure arbitration agreements are enforced like regular contracts and that the Act did not permit, or intend to create, unique rules for waivers. The Court remanded the case back to the District Court to consider the waiver without the prejudice element. The takeaway from Morgan is that a party who delays enforcing an arbitration clause in a franchise agreement or employment contract can lose the right to arbitrate and the party arguing for a waiver may not have to show prejudice from a litigation delay. Parties seeking to arbitrate such disputes should move promptly or risk losing the right to do so. Thank you to Ryan Dame for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News PA's Highest Court Issues Major Ruling on Asbestos Causation. August 6, 2010 < Back Share to: Asbestos trials have diminished over the years as courts have applied more stringent causation tests. That might all be about to change. In the case of [i]Summers v. Certainteed Corporation, et al.[i], the Pennsylvania Supreme Court was presented with the question of whether a plaintiff was prevented in "pursuing asbestos-related causes of action...whenever breathlessness or like ailments may be attributable to both the asbestos and non-asbestors related disease(s) from which a plaintiff suffers." Overturning precedent, the Supreme Court ruled, that, so long as a plaintiff's expert could attribute "a plaintiff's maladies to both an asbestos and non-asbestors related disease", the case must survive summary judgment and thereafter be presented to a jury for a factual determination. Asbestos trials might yet again clog the state's trial calendars. http://pdf.wcmlaw.com/pdf/Summers.pdf http://pdf.wcmlaw.com/pdf/SummersCo.pdf http://pdf.wcmlaw.com/pdf/SummersDO.pdf If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Follow WCM on Twitter @WadeClarkLaw August 30, 2018 < Back Share to: Wade Clark Mulcahy LLP was founded in 1994 -- long before LinkedIn, Twitter, Facebook, or regular use of email. Some of us even recall writing term papers on typewriters, and doing legal research with -- wait for it -- books! (We weren't equipped to copy our grammar school reports from the internet. Nope -- we copied them from the encyclopedia!) As technology progresses, WCM has continued to evolve. More and more courts require mandatory e-filing, and we are shifting toward being a completely paperless law firm across our New York, New Jersey and Philadelphia offices. Moreover, our law blog, Of Interest, has been active for years, providing weekly insights on current legal issues and cases that we think appeal to insurers and other interested parties. If you enjoy our weekly blog posts, then follow us on Twitter @WadeClarkLaw, or check out our LinkedIn page, Wade Clark Mulcahy LLP. We will be featuring similar articles and posts on Twitter, and occasionally commenting on news articles that are relevant to our industry. And if you're a regular #OfInterest reader, you know that Dennis Wade comments on This and That from time to time. We'll tweet those as well. And with regard to commentary on pertinent legal issues in the news (ala, "ripped from the headlines") we will be adopting time-tested pub rules: No religion, no politics. (There are certainly other social media forums for you can find your fill on that!) Please contact Brian Gibbons by email (or while we're at it, on Twitter @bgibbons35) with any questions. Have a happy and healthy Labor Day weekend! Previous Next Contact

News What Can You Do When Your IME Physician Is Sanctioned? Maybe, Not Much (NY) September 12, 2013 < Back Share to: In Haynes v. Modh Jewel Hossain and Baxter Cab Corp., the defendants moved post-note of issue, to stay the trial and to conduct a new orthopedic examination of the plaintiff with a new orthopedist. The basis of the motion was that the previously designated independent medical examiner received a Statement of Charges from the New York State Board for Professional Medical Conduct. Thereafter, the doctor entered into a Consent Agreement and Order whereby he was placed on probation for a period of three years; his license to practice medicine was limited to preclude him from engaging in any practice as an independent medical examiner; and he agreed to voluntarily stop practicing as an independent medical examiner. The defendants argued that the terms of the consent order rendered the doctor unavailable as a trial witness, entitling them to a further examination of the plaintiff. In denying the defendants’ application, the trial court concluded that an expert is not rendered unavailable as a matter of law simply by virtue of the fact that a disciplinary action has been commenced against the expert resulting in restriction of the expert's medical license. Moreover, it is important to note that the plaintiff presented the court with an opinion letter from the Deputy Counsel for the Medical Board that clarified the limitations of the consent order for the sanctioned doctor. The opinion letter stated that if, in the future, the doctor testified about acts performed, observations or findings made, or opinions and/or diagnoses rendered, at a time that predates the effective date of the order, the Board would not consider that to be reportable as a possible violation. In relying on this letter, the trial judge noted that the doctor was available to testify at the time of trial. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Don't Bite the Hand that Feeds You? A Labor Law Decision Goes the State's Way. June 22, 2010 < Back Share to: In the case of Morton v. State of New York, Alan Morton was employed by the New York Water Service Corporation, which supplies water to various parts of Long Island's Nassau County. Morton was part of a crew working to fix a leak in a below-ground water main located under a state highway. While applying a repair clamp, the wall of the trench in which Morton was standing gave way and buried his right leg thereby causing injuries. Morton sued the State of New York under various sections of the State’s Labor Law, including §241(6), alleging a violation of Industrial Code Rule 23-4, which requires banked or sloped sides or shoring and bracing of excavations that are five feet or deeper. At trial, the trial court found that although the State was not on specific notice of the allegedly dangerous condition, N.Y. Lab. §241(6) imposed a non-delegable duty on the State (as property owner) to ensure compliance with the Industrial Code. The trial court further found that the Industrial Code had been violated and thus found for the plaintiff. The trial court's decision was revered on appeal because the Appellate Division reasoned that Department of Transportation regulations required that any work done on a state highway required a permit, and the water company failed to obtain a permit. Therefore, the Appellate Decision reasoned: (a) the State was not on notice of the dangerous condition, (b) Morton was not “a person employed at a work site” within the meaning of §241(6), and (c) since Morton was not employed at the work site, he could not benefit from the protections of the Labor Law. The Court of Appeals has now affirmed the Appellate Decision, noting that ownership alone is not enough to impose §241(6) liability. The Court wrote that there must also be a nexus between the owner and work performed, such as a lease, easement, or other property interest -- which in this case was allegedly lacking -- all because of the lack of a permit. Morton’s case was therefore dismissed. One wonders whether the Court of Appeals would have employed such a strict reading of the Labor Law if a private owner and not the State had been involved. Somehow, we doubt it. It just goes to show, you don't bite the hand that feeds you -- especially if you're a judge who's still looking for a raise. Special thanks to Alex Niederman for his 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_04827.htm Previous Next Contact

News Vicarious Liability Found In A Motorcycle Accident By Off-Duty Cop (NY) April 8, 2022 < Back Share to: In Llorente v. Wnorowski, 2022 NY Slip Op 02258 (2d Dept. 2022), the plaintiff was riding a motorcycle on the Grand Central Parkway when it collided with another motorcycle operated by the defendant Wnorowski, an off-duty police officer at the time, who was riding with other off-duty police officers on motorcycles. The plaintiff commenced a personal injury action against him and against his employers, the defendants City of New York and New York Police Department. The City and NYPD moved for summary judgment dismissing the complaint arguing that they were not vicariously liable for Wnorowski's actions because he was not acting within the scope of his employment as a police officer at the time of the accident, and that no police action otherwise contributed to the happening of the accident. the trial court denied the motion. Under the doctrine of respondeat superior, an employer is vicariously liable for a tort committed by an employee while the employee is acting within the scope of his or her employment [Rivera v State of New York, 34 NY3d 383 (2d Dept. 2020)]. "'Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment'" [Danner-Cantalino v City of New York, 85 AD3d 709 (2d Dept. 2011)]. Usually, these issues are left for a jury to decide. The Second Department affirmed the trial court’s decision citing the fact that there was conflicting testimony that the off-duty police officer attempted to pull over the plaintiff’s motorcycle prior to the accident. The simple act of attempting to pull over the plaintiff’s vehicle, even though he was not on the clock, was sufficient to create a triable issue of fact for a jury to review. The key takeaway on this case is that an employer can be found liable for the actions of his employee, even if that employee is off the clock, if it can be shown he acted within the functions of his employment at the time of the accident. The employer should be wary of making sure that the employee leaves his work at the place of business to avoid any semblance of vicarious liability which could extend to the employer. Thanks to Raymond Gonzalez for his contribution to this article. Should you wish to discuss, please feel free to contact Tom Bracken. Previous Next Contact