News ALL BARK NO BITE-A Dangerous Dog Registry is Among the Bills to be Voted on by Nassau County Legislature Next Week (NY) February 12, 2021 < Back Share to: Legislator John Ferretti proposed a bill entitled, "Benny's Law" to help protect people and pets within the community. The bill was inspired after the lawmaker’s 1-year old terrier, Benny, was attacked by a neighbor’s dog. Although the dog who attacked Benny is currently on probation, the Ferretti fears that since the dog was returned to its owners, other incidents between dogs and even humans may occur. Ferretti believes that the dog database proposition, which aims to list all dogs legally deemed dangerous by a Judge, will make all neighbors in the community fully aware of the vicious nature of not only the dog that attacked Benny, but all dangerous dogs alike, and thus, neighbors will start exhibiting the necessary vigilance and caution while within those potentially unsafe zones. The framework of “Benny’s Law” will look similar to that of a sex registry. The proposed dog database will comprise of the dog owner’s address, the date of the incident, and “the pet owner will have to mail a letter to all property owners within 1,000 feet of the home notifying them that the owner’s dog has been deemed dangerous.” In addition to the address and date of incident, the database will also feature more detailed accounts of each dog, such as, the dog’s weight, age, breed, color, and the duration of dangerous dog designation. “Benny’s Law” also recommends that the failure to register the dangerous dog on the database will result in consequences, starting with a $500 fine. The bill is scheduled to be voted on within the next week with legislator’s hopes it is fully enacted and implemented before any future incidents arise. Thanks to Irving Fayman for his contribution to this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited October 3, 2013 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News What Is A Passageway Under NY Labor Law?” (NY) January 20, 2023 < Back Share to: When a plaintiff alleges a Labor Law 241(6) predicated upon a New York City Rules & Regulations code, the plaintiff must establish a prima facie case that the NYCRR is violated. For example, in Stewart v. Brookfield Off. Props. Inc., 2023 NY Slip Op 00226 (2d Dep’t January 18, 2023), the plaintiff allegedly fell at a construction site while installing a lighting fixture. Plaintiff subsequently commenced a lawsuit against the defendant and depositions were conducted. Plaintiff testified at his deposition that he stepped off of a ladder and immediately tripped on a raised portion of the concrete floor. Thereafter, defendants moved for summary judgment arguing that there was no labor law violation because the plaintiff’s injury did not occur on a passageway, which is a predicate to proving a violation. 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where the plaintiff allegedly tripped was not a passageway. Specifically, the Court stated, “In order to establish liability under Labor Law § 241(6), a plaintiff must "establish the violation of an Industrial Code provision which sets forth specific safety standards," and which "is applicable under the circumstances of the case.” The lower court held, and the second department recently affirmed, that the defendant’s established the plaintiff’s injury did not occur in a passageway and therefore, there was no NYCRR violation. Accordingly, summary judgment was granted to the defendant. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Only the Beginning? Pennsylvania Trial Court Finds Coverage for COVID-Related Business Losses April 2, 2021 < Back Share to: In a possible preview of things to come, in Ungarean v. CNA and Valley Forge Insurance Company, the Allegheny Court of Common Pleas ruled in favor of a Pittsburgh area dentistry, finding its COVID-related business losses were covered. Ungarean sought coverage for business income, extra expense, and civil authority coverage. Following the denial of the claim, he filed a declaratory judgment action seeking coverage. On summary judgment, the insurers argued that the policy required damage to the property for coverage to apply. However, the Court disagreed with the insurers reading of the policy’s provisions as requiring a showing that the policyholder suffered a harm “caused by direct physical loss of or damage to property at the described premises.” Rather, in examining the policy through its plain meaning, the Court found that the provision should be read as distinct parts rather than as a whole. As such, the Court found that the provision included harms due to “direct physical loss of” or “direct physical damage to property”, and the provision did not require actual damage to property in every instance. Thus, the Court determined that Ungarean suffered a direct physical loss of property and coverage applied. The Court also found that civil authority coverage applied. The insurers argued, in part, that civil authority coverage did not apply because Governor Wolf’s shutdown orders did not completely bar Ungarean or its employees from entering the property or from performing emergency procedures. The Court disagreed, writing that the insurers’ interpretation was overbroad. Rather, the Court in reading the policy as a whole, found to the Court’s “primary focus” to be the “extent to which the action of civil authority prevented the insured from accessing its premises in a manner that would normally produce actual and regular business income.” Thus, the Court determined the civil authority provision did not require that all forms of access be prevented for coverage to apply. Finally, the Court did not find that any of the policy’s exclusions applied. Notably, the Court dismissed the insurers’ argument that the policy’s contamination and microbe exclusions precluded coverage. As to contamination, the Court held that the loss did not occur from direct contamination from COVID. Rather, the loss occurred due to the threat of person-to-person transmission of the virus. As to the microbe exclusion, the Court noted that while the policy exclusion included “fungi, wet rot, dry rot, and microbes”, it did not include viruses, writing “If defendants wanted to exclude viruses, why not simply use the word virus explicitly in the insurance contract?” This decision is sure to be appealed and Pennsylvania law on these issues remain unsettled as the myriad of cases involving similar claims move forward. Nonetheless, this case demonstrates that the court’s will continue to rely upon the plain language of the policy in analyzing these claims. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Nothing To Weep About For Art Purchaser April 11, 2012 < Back Share to: The New York State Court of Appeals recently decided a dispute over the ownership of a 1,100 pound sculpture entitled The Cry, by Jacques Lipchitz, between the executor of the owner's estate and the purchaser (who purchased the sculpture from a man claiming to have been gifted the sculpture from the owner in 1997). In July 2004, the executor of the estate claimed to have sold the sculpture to an art gallery, while the purchaser claimed to have purchased the sculpture from another man in September 2005. The executor and the purchaser each filed petitions asking the Surrogate’s Court to resolve the conflicting claims of ownership. The Surrogate’s Court found in favor of the purchaser, noting that the decedent’s inter vivos gift of the sculpture was valid, and dismissed the executor’s petition. However, on appeal, the Appellate Division, First Department, reversed on the law, finding that the purchaser’s claim of ownership was barred by the statute of limitations because the sculpture was converted in 1998 when loaned to the French government. In Mirivsh v. Mott, the Court of Appeals reversed again and found that the Surrogate’s Court correctly ruled in the purchaser's favor because the purchaser established each of the elements of a valid inter vivos gift (intent, delivery and acceptance) by clear and convincing evidence, and, in any event, both parties had agreed by stipulation to allow the Surrogate’s Court would decide ownership of the sculpture on the merits. The court noted that the original owner’s intent to make a present transfer of "The Cry" was clear on the face of the gift instrument, which was in the form of a picture of the sculpture with a writing describing the piece and declaring that it was a gift (and did not necessarily require physical transfer or delivery of the sculpture itself). Thanks to Joe Fusco for this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com Previous Next Contact

News Fixing a Hole – First Department Reverses Defense Verdict in Sinkhole Case (NY) June 29, 2017 < Back Share to: In Gonzalez v City of New York, (2017 NY Slip Op 05180), the First Department recently held that a Bronx trial court’s erroneous evidentiary decisions improperly resulted in a directed verdict for the defense. Plaintiff alleges he was injured when he fell into a sinkhole while walking across a public street in the Bronx, and that the area immediately surrounding the sinkhole was mushy and wet. Further, there was evidence showing that two weeks prior to his accident, a nearby water main burst. The City repaired the water main and then third-party defendant Halcyon Construction Corp. back-filled the hole. At trial, plaintiff claimed the repair work by the City and Halcyon resulted in the sinkhole. At trial, the court precluded plaintiff from introducing photographs of the sinkhole into evidence. As those photographs were taken two weeks after the plaintiff’s alleged accident, the court found that they did not fairly and accurately depict the actual site. Plaintiff also tried to introduce the City’s road and highway specifications, arguing that because the specifications were incorporated into the contract between the City and Halcyon, they were relevant to defendants’ negligence. Again, the court precluded the plaintiff’s evidence, finding that the plaintiff failed to demonstrate that the specifications were anything other than “inadmissible internal rules, which would improperly create a standard of care higher than the one imposed by the common law.” At the end of plaintiff’s case-in-chief, both the City and Halcyon moved for a directed verdict. The court found that there was insufficient evidence to find that either entity created the sinkhole, so it granted both motions. The plaintiff then moved to set aside the directed verdict, arguing that the court erred in precluding admissible evidence. Not surprisingly, the trial court denied the plaintiff’s motion. On appeal, the First Department held that the trial court erred in precluding plaintiff’s photographs of the accident site, even though they were taken two weeks after the accident. Of note, the First Department found that the plaintiff authenticated the photographs at his deposition, and other testimony at trial could have explained whether and to what extent the photographs depicted the accident site. Essentially, by precluding the photographs, the plaintiff was unable to show the jury the hole that he allegedly fell into. Further, the First Department held that the trial court erred in precluding the plaintiff from introducing the City’s road and highway specifications that were incorporated into its contract with Halcyon. As they applied both to the direct defendant (the City) and the third-party defendant (Halcyon), the First Department found that the specifications were admissible as potential evidence of the defendants’ negligence. As the trial court precluded the very evidence that plaintiff needed to argue the defendants’ negligence – the basis upon which the trial court granted the directed verdict – the First Department reversed the directed verdict. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Insurer’s Assault and Battery Exclusion upheld in Bronx County Supreme Court for a Slip and Fall Arising from Spilled Drinks during a Club Melee (NY) January 15, 2021 < Back Share to: Quanisha Simmons commenced a personal injury action against Blvd Bar & Lounge nightclub, located in Westchester County, New York, when she slipped and fell on a puddle of spilled drinks, which was on the floor due to “a melee which erupted within and without the club.” Simmons testified that she was pushed, shoved, and trapped in the bar at her deposition, and when she took a step toward the exit, she fell and allegedly injured her left knee due to a wet floor caused due to the spillage of alcoholic beverages. Blvd Bar’s landlord, C&S Franklin Realty, filed a declaratory judgment in Bronx Supreme Court, against Blvd Bar’s insurer, United States Liability Insurance Company after USLIC disclaimed coverage to them on the assault and battery exclusion. In their complaint, C&S states USLIC issued a Comprehensive General Liability policy to Blvd, naming C&S as an additional insured per the lease executed between C&S and tenant Blvd Bar. C&S demanded that USLIC assume its defense in the underlying action by Simmons and provide indemnification. USLIC moved for summary judgment based upon the assault and battery exclusion precluding coverage both for suits “based upon any actual or alleged ‘assault’ or ‘battery’ stating “since a melee qualifies as an “assault” and/or battery as defined in the policy, the policy does not provide coverage for any and all claims of bodily injury that result from such an event.” In response, C&S argued that the exclusion did not apply because the tenant’s negligence allegedly caused the bodily injury in connection with the spillage on the floor, not an assault or battery. The Bronx Court applied a “but-for” test and held that coverage did not exist because the accident would not have occurred “but for” the melee in the nightclub (i.e., an assault or battery) which caused a puddle of spilled drinks. The court explained that the plain language of the exclusion applied because the pleadings were “based upon” an assault or battery and the bodily injury “involved” an assault or battery. Thanks to Irving Fayman for his contribution to this post. Please contact Thomas Bracken for more information. Previous Next Contact

News New York Coverage Action Dismissed On the Basis of Pennsylvania's Sovereign Immunity February 26, 2008 < Back Share to: Kemper issued a General Contractor's Pollution Liability Policy to the Pennsylvania DOT ("PennDOT"), which constructed a major highway in that state. The policy was issued in Pennsylvania and obtained through a Pennsylvania retail broker. During the course of the project, serious enviromental damage occurred in Pennsylvania. Of significance, the policy contained forum selection and choice of law provisions designating New York as the appropriate forum and source of substantive law for any dispute. During post loss coverage negotiations, Kemper filed a declaratory judgment action in New York. PennDOT responded by filing a parallel action in Pennsylvania and eventually moved to dismiss the New York action. The New York court dismissed the declaratory judgment action, recognizing Pennsylvania's sovereign immunity and the limited conditions under which such immunity could be waived. For example, like many states, Pennsylvania and its state agencies could only be sued in the statutorily created Board of Claims. In sum, Pennsylania's sovereign immunity trumped clearly drafted forum selection and choice of law policy provisions. No doubt the court was persuaded that the dispute's limited contacts with New York and Pennsylvania's substantial interest in deciding the issues of coverage tipped the scales in favor of Pennsylvania. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008JAN/3006001752007002SCIV.pdf Previous Next Contact

News An Issue Of First Impression For PA: Are Minor Children Bound To Arbitration Agreements Signed On Their Behalf? June 9, 2023 < Back Share to: In Santiago v. Philly Trampoline Park LLC, the Superior Court of Pennsylvania was tasked with deciding an issue of first impression in the state: whether a parent’s role as a natural guardian entitles that parent to bind their minor child to an arbitration agreement and waive that child’s right to seek redress for injuries in a court of law. Santiago v. Philly Trampoline Park, LLC., 291 A.3d 1213, 1216 (Pa. Super. Ct., 2023). The case involved several parents bringing separate claims against the defendant, Sky Zone, a Philadelphia trampoline park. Id at 1217. In 2019, a mother and his two daughters visited Sky Zone and signed a “Participant Agreement, Release and Assumption of Risk” (the “Agreement”). Among other things, the agreement provided that “if I or any of my children are injured in any way, this waiver prevents and prohibits any recovery of money from any Sky Zone related entity.” After one of the children was injured at the facility, her father filed a complaint on behalf of his child. Sky zone moved to compel the arbitration agreement, signed by the other parent, contending that the Agreement was a valid agreement that both the parents and child were within its scope. The Court noted that as a general rule of contract law, only the parties to an arbitration agreement may be compelled to arbitrate. That said, a party can still be compelled to arbitrate under an agreement, regardless of whether she signed it, if common law principles of agency and contract support such an obligation on her part. Whether an agency relationship exists is a question of fact, the burden of proof weighing on the party asserting the agency relationship. An agency relationship may exist by: 1) express authority; 2) implied authority; 3) apparent authority; and/or 4) authority by estoppel. Relevant to this case is “apparent authority,” which exists where the principal, “by word or conduct” causes people with whom the agent deals to believe that the principal has granted the agent authority to act. The focus is on the principal’s conduct to determine whether an agency relationship exists, for the purposes of this analysis, the purported agent’s conduct is irrelevant. After analyzing the issue of whether an agency relationship existed as between spouses through apparent authority and finding one did not exist because the principal had no interaction with Sky Zone, the court moved to the novel question of this case. . At the outset, the court acknowledged that the minor children could not have entered into the arbitration agreement themselves, as minors lack the capacity to contract in their own right. Id. As such, the court held that minors also lack the capacity to “grant express authority to an agent to contract on their behaves, rendering any such resulting contracts voidable.” The court held that, “Natural guardianship confers no inherent right to intermeddle with the property of the minor child, and the natural guardian has no inherent authority to demand or power to receive, hold or manage the minor’s property unless the natural guardian has also been appointed as guardian of the minor’s estate.” Id. This is an interesting decision that we expect to be appealed. Thanks to Hannah Garber for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Grip of Liability: Why a Missing Handrail Spells Trouble for Defendants, Even Without a Clear Cause of the Fall April 5, 2024 < Back Share to: Recently, in Curto v. Kahn Property Owner, LLC , 2024 N.Y. Slip Op. 01290, the Second Department faced plaintiffs’ appeal after the trial court granted summary judgment in favor of defendant property owner. Plaintiffs (both the injured plaintiff and his wife, suing derivatively) alleged that Mr. Curto sustained injuries after a trip and fall occurring as he descended a flight of stairs while attending a wedding reception at the premises. In initially moving for summary judgment, defendants argued that plaintiff’s testimony could not clearly identify a cause of his fall down the stairs. The Second Department reversed the lower court’s award of summary judgment to defendants. In its reasoning, the court did agree with defendants that plaintiff was unable to clearly identify a specific cause of his fall: “[W]here it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation.” However, the court’s agreement with defendants’ argument ended there, stating further that even if something like a misstep caused a plaintiff’s fall, “the absence of a handrail, if required by law, may raise an issue of fact as to whether the absence of the handrail was a proximate cause of his or her injury.” Importantly, the court emphasized that the key factor in its reversal was plaintiff’s testimony directly implicating the absence of a stairwell handrail. “Although [plaintiff] was not sure what caused him to lose his balance, the injured plaintiff testified that he was ‘looking for a handrail’ before descending the final set of steps but observed that no handrails were available.” The court clarified that the absence of a handrail alone will not create a triable issue of fact without testimony from plaintiff “that [they] reached out for a handrail either before or during [their] fall” or without any showing that “the lack of handrails contributed to the accident.” This case should put premises owners on notice that the absence of a handrail, when required by law, may ultimately reduce plaintiff’s burden in both proving the cause of their fall and in opposing a defendant’s summary judgment motion. Curto v. Kahn Property Owner LLC .pdf Download PDF • 160KB Previous Next Contact

News Do You Need to Remove the Snow? April 22, 2020 < Back Share to: In Dembele v 373-381 Pas Assoc LLC, the Appellate Division, First Department addressed whether the defendants – restaurant and landowner had an obligation to remove snow and ice from the sidewalk abutting the property. The Bronx County Supreme Court granted the defendant and third-party defendants summary judgment motion on the basis that they did not have a duty to remove the snow and ice on the abutting sidewalk. However, the Appellate Division unanimously reversed the Supreme Court. Plaintiff, an employee of the restaurant owned by third party defendant, sustained personal injuries after falling on snow and ice on a ramp leading from the side door of the restaurant to the abutting sidewalk. The restaurant leases the property from defendant – landowner. The ramp at issue is over the public sidewalk alongside the restaurant. The Appellate Division held that even though the lease between the defendants obligated the restaurant to remove snow from the sidewalk, it did not absolve the owners of the property of their nondelegable duty to keep the sidewalk in safe condition. This decision serves as a reminder for building owners to do all they can to keep their sidewalks safe, notwithstanding the language in their lease with a tenant. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Fine Art and Specie For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Practice Lead Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Download Download