News NJ Judge's Defense To Groping Charges-Don't Try This At Home February 15, 2012 < Back Share to: An Ocean County judge accused of breaching judicial ethics by inappropriately touching and making sexually suggestive remarks to female probation officers at a holiday party has filed an answer to the charges. While he says he is embarrassed and mortified, he claims that he has no recollection of the incident- but that if it did happen it was the result of drinking too much.   Previous Next Contact

News Court Sees Through Plaintiff's Claim of Optical Confusion (NY) March 8, 2012 < Back Share to: In Hanger v. 116 Lexington Ave., Inc., plaintiff fell on a five-inch single step transition at the entrance to a second-floor banquet room at a restaurant in midtown Manhattan. Plaintiffs' engineering expert opined that the similarity in the flooring of the hallway and the banquet room obscured the step. However, defendants moved for, and were granted summary judgment, arguing that the step was not a latent dangerous condition, and even if it was, adequate warnings of the step were provided. Plaintiff appealed, arguing that the motion court erred in dismissing their complaint because the conditions of the step area created "optical confusion," rendering the step dangerous. Although a step may be dangerous where the conditions create optical confusion, certain factors need to be considered. Specifically, courts will look to the similarity in surface colors, and whether the edge of the step created the illusion of a level surface and if there were any signs warning of the step. The Appellate Division found no “optical confusion” existed and affirmed the lower court’s ruling, as the step in question had four reflective strips positioned parallel to the step and a sign, which read "Step Down" with an arrow pointing diagonally downward toward the step. Thanks to Joe Fusco for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com     Previous Next Contact

News Traffic Lane Closure Leads to No Exposure (NY) April 13, 2016 < Back Share to: In Federico v Defoe Corp., the plaintiff was working along an expressway, removing barrier cones that had been set up to close traffic lanes for construction work. Violating protocol, he attempted to remove the cones without a shadowing truck, when he was hit by a vehicle. In addition to suing the vehicle driver, the plaintiff brought a more creative claim against another contractor that was also working in the area and had placed cones earlier in the day for lane closures. The theory was that the other contractor had removed the cones without giving notice to the plaintiff and his employer who had "piggybacked" their lane closures on this company's along the same lane. The plaintiff argued that the contractor’s removal of the cones caused his accident. The lower court granted the contractor’s summary judgment motion. In affirming the lower court’s decision, the Second Department agreed that the contractor owed no duty of care to the plaintiff directly but, rather, was hired by a 3rd party to perform work on the expressway. Accordingly, the Second Department looked at Espinal v. Melville Snow Contractors, and the applicability of its three exceptions. The court concluded that the contractor, in performing its duties, did not create an unreasonable risk of harm to the plaintiff, the plaintiff did not rely on the contractor’s performance of its work, and the contractor did not displace the plaintiff’s duty to perform his work safely. Finally, the court concluded that the contractor merely furnished the condition or occasion for the occurrence but was not one of its causes and therefore could not be liable for the plaintiff’s injuries. Thanks to Georgia Coats for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News Following the Letter of the Law Does Not Always Negate Responsibility for New York Drivers < Back Share to: In New York, the driver of a vehicle with the right-of-way is entitled to assume that other drivers will yield in compliance with the Vehicle and Traffic Law but still has a duty to exercise reasonable care to avoid a collision with vehicles that fail to yield the right-of-way. As such, drivers must still determine whether it is safe to continue given the conditions. For example, in Rogers v. Consolidated Edison Co. of N.Y., Inc. , the plaintiff was a passenger in a vehicle that was exiting a parking lot, intending to make a left to travel southbound. The operator of a vehicle traveling in the northbound lane stopped to the left of plaintiff’s vehicle and waved the driver of plaintiff’s vehicle on. Plaintiff’s vehicle crossed the northbound lane and was waved on by the driver of another vehicle in the southbound lane that had also stopped. Plaintiff’s vehicle continued over a double yellow line, turning left onto the southbound lane, when it was struck by defendants’ vehicle which had passed the stopped southbound vehicle on the right side. Plaintiff sued the defendant driver and owner Con Ed for injuries in the accident and the Supreme Court denied their motion summary judgment as against the driver and owner of plaintiff’s vehicle. The Second Department affirmed, finding that the defendants failed to establish that the defendant driver was free from fault in the happening of the accident, or that the alleged negligence of the driver of plaintiff’s vehicle was the sole proximate cause of the accident. Specifically, the Court held that the defendants failed to eliminate triable issues of fact as to whether the defendant driver “exercised reasonable care under the conditions presented, including, among other things, whether he should have stopped or at least lowered the rate of speed of his vehicle before attempting to pass the stopped vehicle, regardless of whether he had the right-of-way as compared to [the driver of Plaintiff’s vehicle.” The Court rejected the argument that the defendant driver exercised reasonable care simply because he was traveling at or under the speed limit. The Rogers case echoes the longstanding rule that New York drivers must exercise reasonable care at all times, even when they have the right-of-way and are driving within the speed limit. Drivers who fail to do so may be found liable even if they are complying with the Vehicle and Traffic Law in all respects. Rogers v. Consolidated Edison Co. of N.Y., Inc. .pdf Download PDF • 165KB Previous Next Contact

News Insurer Has Heavy Burden Proving Insured’s Noncooperation October 31, 2017 < Back Share to: In a recent New York appellate decision, the court considered whether letters from attorneys representing an insured in an underlying lawsuit and investigation reports regarding statements made by an insured’s president can be considered on a motion for summary judgment following an insurer’s disclaimer on the grounds of noncooperation. In DeLuca v. RLI Insurance Company, plaintiff sued RLI’s insured, ML Specialty Construction, Inc., alleging property damage caused by ML’s construction work on a neighboring property. After ML Construction notified RLI of the plaintiff’s claim, RLI retained counsel to defend ML Construction. RLI then disclaimed coverage after ML Construction allegedly stopped cooperating with counsel after five years of cooperating with the defense. ML Construction then defaulted in the underlying action. After the plaintiff obtained a judgment against ML Construction, she commenced a declaratory judgment action against RLI seeking a declaration that RLI was obligated to pay her damages in connection with the judgment obtained against ML Construction. RLI cross-moved for summary judgment. The Second Department held that an insurer who seeks to disclaim coverage on the basis of a policy’s noncooperation clause faces a heavy burden. The insurer must demonstrate that “(1) it acted diligently in seeking to bring about the insured’s cooperation, (2) its efforts were reasonably calculated to obtain the insured’s cooperation, and (3) the attitude of the insured, after its cooperation was sought, was one of willful and avowed obstruction.” The court held that in this case, RLI failed to meet its burden, namely by failing to submit proof of its efforts and ML Construction’s refusal to cooperate in an admissible form. The proof RLI submitted as evidence of ML Construction’s noncooperation were letters from ML Construction’s counsel and investigation reports and emails from an investigation services company. The letters, emails, and reports purportedly contained statements from ML Construction’s president supporting RLI’s contention of ML Construction’s noncooperation, which the court held were offered for their truth and were therefore were hearsay, and not admissible. Furthermore, an affidavit from the president of the investigation company containing a conclusory assertion that efforts to obtain ML Construction’s cooperation were not successful did not sufficiently meet the insurer’s heavy burden of proving noncooperation. Accordingly, the denial of RLI’s cross-motion for summary judgment was affirmed. This case serves as a reminder that an insurer’s burden of demonstrating an insured’s alleged noncooperation in connection with a disclaimer of coverage remains high. Thanks to Rebecca Rose for her contribution to this post.       Previous Next Contact

Jenny Rajkowski Paralegal Philadelphia jrajkowski@wcmlaw.com +1 267 239 5526 Professional Experience At WCM, Jen: assists with a variety of general liability and automobile claims; coordinates discovery; prepares and coordinates documents for dispositive briefings and trial preparation. Jenny is the primary paralegal for our PA office Before joining WCM, Jen was a Senior Paralegal for Litigation and Labor & Employment law for the New York offices of two large international law firms. Jen also has experience with federal labor litigation, civil litigation and intellectual property litigation for the Washington, D.C. offices of three large international law firms. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education B.A. Political Science, American University

News PA Court Holds Instagram Account Discoverable March 30, 2018 < Back Share to: Pennsylvania law on the discoverability of social media records remains in flux, but a recent decision involving an auto accident and Instagram photos gives some guidance to circumstances in which a party may be compelled to provide discovery pertaining to social media content. In Kelter v. Flanagan, plaintiff filed suit after suffering injuries in an automobile accident. Following the deposition of the plaintiff, defendant filed a motion to compel, seeking log-in information to plaintiff’s Instagram account. Pennsylvania law states that relevant information may be obtained in discovery unless it is privileged. As held in previous cases, social networking accounts can be discoverable if it appears that they likely contain information that could be relevant, supported by the fact that there does not appear to be an expectation of privacy for social media accounts as because the account holder is sharing information with others in a public or quasi-public domain. In this case, plaintiff had publicly viewable Instagram posts showing her engaged in various physical activities after the accident. The posts included references to the plaintiff shoveling snow and going to the gym after the accident, although in her testimony she claimed that her injuries made her unable to engage in these activities. The judge explained that the posts were certainly relevant to establish the extent of her injuries and the success of her rehabilitation. The defendant asked for further discovery on plaintiff’s Instagram account, but plaintiff opposed, arguing that defendants already had access to all of the information because her Instagram posts at the time of the deposition were maintained in a public account. The defendant argued that the plaintiff could switch her account to private access at any time, leaving the defendant with no access to the information contained in the posts. The defendant also raised concerns that previously public posts could be deleted. The court found that the facts of this case established that there may be other relevant information about the plaintiff’s injuries contained in her Instagram account. The judge explained that the fact that there were some available public posts for a period of time did not eliminate the need for full access to plaintiff’s account, as the account could be converted to a private account, blocking the defendant’s access to the information. The judge further instructed the plaintiff not to remove any content from her Instagram account and defense counsel shall not share information gathered from plaintiff’s account with anyone not involved in the case. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News While Use Of Man-Lift Results In Death, Employer, Repairer, Inspector and Manufacturer Not Liable October 9, 2008 < Back Share to: In Altinma v. East 72nd Garage Corp et al, plaintiff’s decedent sustained fatal injuries when he was allegedly pinned beneath a single-person vertical transportation device called a man-lift while working at Somerset Garage in Manhattan. Plaintiff brought this action against East 72nd, the garage license holder, Ace Overhead Garage Door Inc, the entity that repaired the man-lift on an as-needed basis and Charles Calderone Associates Inc, the entity that performed annual inspections of the man-lift. Multiple third-party actions were commenced, including an action in strict products liability against Humphrey Man-Lift Corp, the man-lift manufacturer. All of the original parties and Humphrey moved for summary judgment. The trial court granted East 72nd summary judgment as against plaintiff, but denied summary judgment as to cross-claims. Humphrey was also awarded summary judgment and all of the original parties appealed. The Appellate Division, Second Department reversed the trial court’s decision and granted summary judgment to Ace and Calderone and affirmed the trial court’s decision as to East 72nd and Humphrey. Unpersuaded by plaintiff’s arguments that Ace and Calderone may have in the performance of their duties failed to properly inspect or warn so to “launch a force or instrument of harm,” the Appellate Court found as a matter of law they did not owe a duty to the non-contracting plaintiff. For East 72nd, the trial court correctly found the decedent to be a special employee and dismissed the action pursuant Workers’ Compensation Law §11. However, since the decedent suffered a grave injury, co-defendants’ cross-claims for indemnification and/or contribution remained viable. Lastly, since there was no triable issue of fact as to whether Humphrey marketed the man-lift that was not reasonably safe or that the alleged defective design of the man-lift was a substantial factor in causing plaintiff’s injury, the decision to grant Humphrey summary judgment was affirmed. http://www.nycourts.gov/reporter/3dseries/2008/2008_07202.htm Previous Next Contact

News Slip & Fall Shows a Mountain of Triable Issues of Fact (NY) January 8, 2021 < Back Share to: In Jubie v. Emerson Management Enterprises, LLC, (3d Dept. 2020), a plaintiff slipped and fell on an icy parking lot in Ulster County, NY. Plaintiff commenced an action against the management company for the parking lot, and subsequently named Kenneth Umhey in her action, because he provided snow removal services for the parking lot under contract with the management company. Umhey moved for summary judgment arguing that his snow contract with the management company did not allow plaintiff to sue him directly. He also submitted testimony that he did remove the snow to certain piles on the parking lot. The Third Department affirmed the denial of request for summary judgment rejecting his two arguments. The court held that a third-party cannot find liability for tort under the terms of a contract that it was not party to, unless a contracting party fails to show reasonable care in the performance of its duties and “launches a force or instrument of harm.” In this respect, Umhey failed to submit sufficient evidence that he used reasonable care in the clean-up of the snow in the parking lot. Umhey testified that he pushed the snow toward the edge of the parking lot that ran downhill from the street. The plaintiff testified that she saw a mountain of snow in the parking lot and the melting water was running to the drain located in the middle of the parking lot. The court found triable issues of fact as to whether Umhey should have known that the mountain of snow would melt, and the water would run off toward the drains into the middle of the parking lot. There were also triable issues of fact as to whether the water run off frozen over. This case highlights the court’s ability to find triable issues of fact in the smallest details of a defendant’s argument. All property management companies, and snow removal companies should be wary of any piles of snow in their parking lots. Simply salting and removing snow does not shield either of these parties from liability under certain circumstances. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Condo's are not Owners under Labor Law (NY) December 13, 2012 < Back Share to: As CGL insurers are well aware, New York's Labor Law, originally designed to protect construction workers from unsafe practices, often ensnares small property owners with its strict liability conditions. Labor Law § 241(6) imposes a nondelegable duty upon "owners," "contractors" and their "agent" involved in construction, excavation, or demolition work to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Recently, the New York Court of Appeals ruled that condominiums generally cannot be found liable under New York Labor Law § 241(6). In Guryev v. Tomchinsky, the plaintiff suffered an eye injury while working in the defendants' condominium unit. Guryev sued the condominium under Labor Law, arguing that the condominium was an “owner” of the unit because it owned the land underneath the building. In addition, the condominium entered into an alteration agreement with the Tomchinskys in which the condominium retained many important rights and control over how the work would be performed and contractor choice. Plaintiff further argued that co-operatives are deemed to be "owners" and condominiums should also be deemed owners for public policy reasons. The Court of Appeals, over the dissent of its Chief Judge, ruled in favor of the condominium because the condominium, unlike a co-op, did not hold title to the actual unit in which the injury occurred. Therefore, the condominium could not be an “owner” under Labor Law § 241(6). In addition, the alteration agreement with the Tomachinskys simply reflected the condominium's interest in making sure that the renovations would protect the building and other units and did not grant the condominium the prerogative to ensure that the contractor was using adequate safety precautions. Thanks to Mendel Simon for his contribution to this post. If you have any questions, please write to mbono@wcmlaw.com . Previous Next Contact

News If At First You Don’t Succeed. . . October 14, 2021 < Back Share to: We’ve all had one, a pro se condo commando files a multi-hundred page kitchen sink complaint. The first reaction is to brush it off. Then one gets to thinking . . . Is there a duty to defend? To indemnify? If so, for what? Two, four, six or more years later defense counsel says yes, we want this over too -- we are trying, we really are but he keeps filing stuff, the guy won’t go away … In Lake County Florida, Circuit Court Case Numbers 2019-CA-001528, 2019-CA-001871, 2020-CA-001647 and 2021-CA-0766, plaintiff unhappy with the way his condominium association was operating, waged jihad against his condominium, its board, its management company and even its attorneys; filing multiple complaints seeking injunctions; declarations; breach of contract damages; malpractice damages; fraud damages; breach of fiduciary duty damages; attorneys fees; costs, etc., etc. Defendants aggressively defended; and the judge did his best to balance plaintiff’s access to the court against defendants’ right not to be harassed. When ruled against, plaintiff sought, in both the Florida District Court of Appeal and Florida’s Supreme Court, review. Plaintiff’s requests for appellate review were denied. On August 30, 2021, Florida’s Fifth District Court of Appeal released four related opinions in Case Numbers 5D21-0845, 5D21-0886, 5D21-1281 and 5D21-1593. Finding that “Enough is Enough,” the court sanctioned plaintiff for abuse of the judicial process by making repetitive, malicious and frivolous filings. As a sanction, the court prohibited plaintiff from filing any further pro se appellate filings concerning any of his Circuit Court cases unless said filing was made by a member in good standing of The Florida Bar. In Florida, the right to proceed pro se, at both the trial and appellate levels, may be forfeited where it is determined that the party has abused the judicial process through the continued filing of successive or meritless filings. It’s not easy relief to obtain, but in the right case it is worth the effort. Thanks to Charles M-P “Chip” George for his contribution to this post. Please contact Chip with any questions. Previous Next Contact

News Asleep in Car = At Work? PA Appellate Court Says "Yes". October 15, 2009 < Back Share to: In the case of Kulik v. Mash, the plaintiff arrived for work early, so he decided to nap in his car in his employer's parking lot. While he was napping, a co-worker arriving for work rammed his car into the plaintiff's thereby causing injuries. The question posited for the court was whether the Worker's Compensation Act barred coverage. The Superior Court agreed with the trial court and held that it did. The court held that "waiting for work was within the scope of employment." http://pdf.wcmlaw.com/pdf/Sleeping Employee.pdf Previous Next Contact