News Facebook Discovery Permitted in New York June 6, 2012 < Back Share to: Social network data is the new frontier of pre-trial discovery. Our adversaries upload, download, tweet and post. For some unexplained and seemingly generational reason, some people are almost compelled to share intimate details of their personal lives through their use Facebook, MySpace or Twitter. The goal of obtaining Facebook data is easy to state but harder to implement. The courts balance the need for material and relevant information of one party against the expectations of privacy of the other. In D’Agnostino v. YRC Inc., the defendant developed a sound plan to obtain plaintiff’s social media postings. Rather than serve an early document demand seeking all of the plaintiff’s Facebook postings, the defense attorney first deposed plaintiff and gained valuable admissions that plaintiff routinely posted concerns about her feelings and emotions both before and after her accident. Once the trap was laid at plaintiff’s deposition, the defense attorney sprung into action and demanded all plaintiff’s social media postings and photographs concerning any mental, emotional or physical condition suffered by plaintiff regardless of whether posted by her or others before and after her accident. In a well reasoned opinion, the court held that plaintiff put her physical and mental condition in issue when she filed her lawsuit. Further, plaintiff admitted that she routinely posted about her feeling and emotions on Facebook. Accordingly, the court ruled that the defendant satisfied the two prong test for obtaining an opponent’s social media postings by: (1) specifically identifying what material was sought; and (2) establishing a factual predicate for seeking such evidence. D’Agostino is hardly the last word on the discovery of social media postings in New York. It is an important lens into how the trial courts are dealing with discovery in this area and provides a practical roadmap to how a defense lawyer can lay the proper foundation to obtain this valuable discovery. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Juror's Facebook "Friend Request" Nearly Overturns Convictions March 25, 2010 < Back Share to: Last month, two Bronx convictions for criminally negligent homicide were overturned for evidentiary reasons. Firefighters responded to a fire in an apartment building in which tenants had created partitions in apartments to create extra rooms. The new rooms, however, were cut off from both hallways and fire escapes. Due to the lack of escape routes, two firefighters were tragically killed during the fire. A jury convicted the building owners for criminally negligent homicide. Those convictions have now been overturned because, according to the judge, there was insufficient evidence that the defendant building owners actually knew about the illegal partitions. Another aspect of this recent decision examined a particular juror's behavior during the trial. One of the jurors, Karen Krell, sent a Facebook "friend request" to a testifying witness, Firefighter Brendan Cawley, during the trial. In her decision, Judge Margaret Clancy found that these actions by Ms. Krell constituted a "serious breach of her obligations as a juror", but did not quite rise to the level of misconduct that would require overturning the convictions. As it turned out, the convictions were overturned for other reasons, as mentioned above. Still, scenarios such as this one should compel judges to expand their jury instructions before and during trial. Judges generally instruct jurors not to speak to the witnesses or lawyers in the halls or outside the courthouse during the trial, so as to not create even the appearance of impropriety. Given that we are now in a digital age, judges would be well advised to expand those jury instructions from courthouse space to cyberspace, charging jurors to refrain from contacting any witness by any means, electronic or otherwise, thereby avoiding potentially costly appeals. While avoiding such cyber-contact with a witness during a trial may (and should) strike potential jurors as common sense, this case illustrates that common sense is often uncommon, and courts should offer more specific and explicit instructions to the jurors. Thanks to Brian Gibbons for his contribution to this post. http://www.nytimes.com/2010/02/24/nyregion/24black.html Previous Next Contact

News NJ Supreme Court Tackles Scope of Product Liability Act. December 29, 2010 < Back Share to: In the case of Dean, et al. v. Barrett Homes -- http://lawlibrary.rutgers.edu/courts/supreme/a-15-09.opn.html -- New Jersey’s Supreme Court was faced with the question of whether New Jersey’s Products Liability Act, N.J.S.A. 2A:58C, allowed purchases of a residential home to sue the manufacturer of an allegedly defective exterior finishing system. In reaching its decision, the Court wrote that the Product Liability Act “is not concerned with providing a consumer with a remedy for a defective product per se; it is concerned with providing a remedy for the harm or the damage that a defective product causes to people or to property.” As such, the Court ruled that the Act precluded plaintiffs from “recovering any damages for harm that the EIFS caused to itself.” However, the Court went on to note that the Act only applied to integrated products. Here, the Court concluded that the EIFS was not fully integrated into the structure of the house, such that the Products Liability Act would apply. Rather, it was a stand alone product such that the plaintiffs retained a cause of action pursuant to which they may proceed against the product’s manufacturer.” For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com Previous Next Contact

News Everything Flows Downhill: New York AD Rules That Sub's Insurers Must Fund Entire Settlement April 28, 2010 < Back Share to: New York construction litigation is like a multi-headed dragon: cut off one head (issue) and another one quickly emerges. In analyzing its ultimate exposure in this context, an insurer must consider both the underlying liability of all its insureds as well as how the coverage disputes amongst the various insurers will play out at the end of the case. In Indemnity Ins. v. St Paul Mercury, the Appellate Division, First Department grappled with a mind numbing fact pattern after a general contractor’s employee was injured due to the negligence of a subcontractor. The case discusses the interplay between New York’s Labor Law, contractual indemnity and additional insurance requirements, the hierarchy of coverage and New York’s anti subrogation doctrine. At the end of the day, the subcontractor’s insurers wind up footing the entire bill for the $3,000,000 settlement with no contribution from the owner or the general contractor. The First Department discusses the distinction between liability and coverage as well as the anti subrogation doctrine, which prevents the subcontractor’s insurer from seeking contribution from its additional insureds in an indirect effort to pick the pockets of the policies of the owner and general contractor. Who says insurance coverage litigation can't be fun? If you have any questions or comments on this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03254.htm Previous Next Contact

News Court's Decision Shows "LOVE" to Sculptor (NY) March 8, 2012 < Back Share to: Robert Indiana’s “LOVE” sculpture is very well known. It is displayed in parks and museums throughout the world, and its image has been reproduced on postage stamps and the like. Over the years, Indiana entered into a series of production agreements with John Gilbert, including a 2007 deal for the creation and production of a sculpture in Hindi script of the word love, which in Hindi, is “Prem.” Three versions of the sculpture were depicted in the contact, and contract also included “derivate works” of those three versions. The contract did not contain, however, any provision for a version with the English letters P,R,E and M, which a partner of Gilbert later designed. Gilbert claims that he showed an English Prem version to Indiana, and that Indiana approved the design. He also alleged that Indiana signed -- on a blank space on a page, and not the signature line -- a certificate of authenticity to accompany the sale of such a version. However, Indiana later disputed that he approved the design, calling it a “monstrosity.” Further, within a few days of signing the certificate, he denied that he was the creator of that piece. Gilbert then filed suit, with the causes of action sounding in breach of contract, as he wanted to be able to sell the English Prem version as an authentic Indiana design. Indiana eventually moved for summary judgment. The Court found that there was no dispute about the fact that the English Prem version was not included in terms of the contract. The Court also found that the Hindi version was completely different than the English version, could not be a derivative work, and therefore did not fit within the contract’s definition of “Licensed Works.” The Court also rejected claims that Indiana’s actions modified the Contract, particularly because the contract had a “merger clause” that provided “The Agreement contains the entire understanding between the parties.” Neither an oral approval of the design or a signature of the Certificate of Authenticity, even if not in dispute, would serve to modify the written agreement. The Court therefore dismissed the complaint -- and thus the sculptures cannot be considered authentic Indiana works. If you would like more information about this post, please write to Mike Bono at mbono@wcmlaw.com   Previous Next Contact

News One Two Many Dwellings: Southern District of New York Holds Building Is Not Covered As “Two-Family Dwelling” Under Homeowners’ Policy June 21, 2024 < Back Share to: In Clyton Hall v. Mountain Valley Indemnity Co. , Mountain Valley issued a homeowners’ policy to Hall, the owner of a three-story building with one unit on each of the ground, second, and third floors. 2024 WL 2943747, at *1 (S.D.N.Y. June 10, 2024). The Policy provided coverage for damage to the “dwelling on the ‘residence premises’” identified in the Declarations. Id. The Policy’s Broad Form further defined the “residence premises” as (1) a one-family dwelling occupied by the insured; or (2) a two-family dwelling where the insured occupies at least one of the family units. Id. In 2022, a fire rendered the building uninhabitable, prompting Hall to request property damage coverage. Id. at 2. After investigation, Mountain Valley disclaimed coverage, concluding the building constituted a three-family dwelling, not a “residence premises” under the Policy. Id. Mountain Valley contended that the definition of “two-family dwelling” referred to the number of families the dwelling could structurally accommodate. Id. at 4. In turn, Hall argued that it concerned “the number of families living in the building and not the number of units.” Id. Evaluating the parties’ cross-motions for summary judgment, the Court affirmed Mountain Valley’s interpretation of the Policy. First, the Court noted that Mountain Valley’s interpretation was consistent with New York jurisprudence, which established that the number of units in a building is based on the building’s structural configuration—not the number of families living therein. Id. at 5. Second, the Court concluded that the Policy’s definition of “residence premises” was unambiguous, only permitting coverage “of a dwelling with at most two family units.” Id. In contrast, the building at issue contained three family units, each with its own kitchen, bathroom, living space, and entrance. Id. at 6. Thus, each floor constituted a “self-contained unit,” rendering the entire building a three-family dwelling. Id. Finally, the Court rejected Hall’s argument that the “residence premises” should be defined under the Declaration as the building’s address, without reference to the units contained therein. Id. at *7. The Court emphasized that the Policy must be read as a whole, and the Broad Form limited the “residence premises” referenced in the Declaration to a one or two-family dwelling. Id. Clyton Hall v. Mountain Valley Indemnity Company .pdf Download PDF • 262KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Oil Spill in Parking Lot Was Not Open and Obvious (PA) December 11, 2020 < Back Share to: A recent decision from the Pennsylvania Superior Court highlights the importance of ensuring clear and thorough testimony from witnesses both during depositions and at the time of trial. In Wilson v. Autozone Stores, the plaintiff sustained injuries in a fall outside an Autozone. At trial, plaintiff testified he noticed a “gooey, slippery” substance on his shoes as he entered the store and assumed he stepped in something in the parking lot. He alerted an Autozone employee and continued shopping. Later, plaintiff left the store and slipped on oil near the curb. He then noticed an area of oil on the curb directly in front of the Autozone. He testified that he did not know where the oil on his shoe came from until after fell. The jury returned with a verdict finding Autozone fully liable for the harm. Autozone appealed, asserting that a judgment notwithstanding the verdict should have been entered because the evidence showed the danger presented by the oil was both open and obvious. Autozone relied on an oft cited case from the Pennsylvania Supreme Court holding there is no duty to warn invitees of open and obvious conditions. See Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983). Plaintiff argued that his testimony could not be construed to stand for the proposition that he observed the oil on his way into the store because he repeatedly stated he did not. The Superior Court agreed with the plaintiff. Autozone then argued that Wilson’s last statement on the issue should control pursuant to Stewart v. Ray, 76 A.2d 628 (Pa. 1950). The Superior Court acknowledged that Stewart stands for the “settled principle that where a witness has testified to two different versions or has made inconsistent and contradictory statements and is confronted with that contradiction, his final statement” controls. Id. at 632. However, application of Stewart is limited to those cases in which the witness is directly confronted with the contradictory testimony. See e.g. Girard Trust Corn Exchange Bank v. Phila. Trans. Co., 190 A.2d 293, 296 (Pa. 1963). As applied, here the testimony was insufficient to trigger Stewart, since plaintiff was not asked whether he saw the oil spill before entering the store and reiterated numerous times that he only observed oil on his shoe on his way into the store. The case serves as a stark reminder of the importance of asking the appropriate questions at depositions and trial to fully vet the observations of a witness, and paint a full picture of the scene. Thanks to Jennifer Seme for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News New York Courts Redefine Meaning Of Specific Standards In Labor Law Claims August 19, 2022 < Back Share to: Labor Law 241(6) imposes a non-delegable duty on owners and contractors 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 the Department of Labor.” The first part of the statute reiterates the common law-standards of care. The second part of the statute creates a nondelegable duty with respect to certain regulations. The question the courts have grappled with is whether this sets forth a “specific standard of conduct” or a general safety standard. In Toussaint v. Port Authority of N.Y. & N.J., plaintiff was injured when he was struck by a power buggy. The operating engineer of the power buggy was not assigned by his employer to operate the device. Plaintiff alleged a violation of NYCRR23-9.9(a) which states that “no person other than trained and competent operator designated by the employer shall operate a power buggy.” Since the term “designated person” was specifically defined in NYCRR23-9.9(a) it was deemed a proper predicate for a Labor Law 241(6) claim. The Court previously refined the standard of liability under Section 241(6) by requiring that the rule or regulation alleged to have been breached be a specific, positive command, in Ross v. Curtis-Palmer Hydro-Elec. Co. However, in Toussaint the Court has reframed the standard and held that the term “designated” does not transform NYCRR23-9.9(a) into a specific standard. This will have a specific impact on New York Labor Law practice as the term “designated” has now been reframed to not be considered a specific standard. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News FLORIDA’S NEW YEARS RESOLUTION: Complying With Amendments To Rules of Civil Procedure Promoting Active Case Management September 6, 2024 < Back Share to: Effective January 1, 2025, every civil case filed throughout Florida’s twenty judicial circuit courts must adhere to a new procedural framework that stresses strict compliance with deadlines and establishes exacting standards to be met by any party seeking to modify or extend them. Even before Florida’s courts were awash with cases filed on the eve of comprehensive tort reform legislation being enacted and the courts were backlogged with Covid-era cases, Chief Justice Canady established the Workgroup on Improved Resolution of Civil Cases in 2019, with the aim of “promot[ing] the fair and timely resolution of civil cases.” In Re: Amendments to Florida Rules of Civil Procedure (Fla. 2024). Under the new amendments, within 120 days of a complaint being filed, the court will now assess the case to determine the amount of judicial attention expected to be required for its resolution and assign it to one of three case management tracks: streamlined, general or complex. The lion’s share of cases will be classified as “general.” The court will issue a case management order with a projected or actual trial period and establish deadlines for service, adding new parties, completing fact and expert discovery, resolving all objections to pleadings and pretrial motions and completing court-ordered alternative dispute resolution. The deadlines established by the case management order must be strictly enforced and are only able to be modified by court order. The court may set, either on its own notice or on proper notice by a party, case management conferences at any time. Attorneys appearing at such conference must be prepared to address all pending matters in the case, have authority to make representations to the court and enter into binding agreements concerning motions, issues and scheduling. The court may sanction any party for failing to appear at a case management conference by dismissing the action, striking the pleadings, limiting proof or witnesses or imposing any other sanction it deems appropriate. To modify a deadline, amend a case management order or alter a projected trial period, a motion must specify the basis for the extension and the time at which the basis became known to the movant. The motion must also specify whether the extension is agreed by the parties, the specific date proposed for the extended deadline or projected trial period, and the action and timetable that will enable the movant to meet the proposed deadline or trial period. Motions to continue trial “are disfavored and should rarely be granted and then only upon good cause shown.” Id . A motion for continuance must be filed promptly upon the need arising for the continuance. Such a motion must certify that the movant made a reasonable effort to confer with opposing counsel. The failure to do so may form the basis for sanctions. The motion must be made in writing and state the basis for the continuance and the time at which the basis became known to the movant and whether the continuance is agreed by the parties. The motion must also identify the action and dates needed to be trial ready and include dates for third-party witnesses’ and/or expert witnesses’ availability; the specific date proposed for trial and whether that date is opposed. The motion must be signed by the named party requesting such relief. This new rubric requires counsel to be even more vigilant in actively advancing the defense of their clients or risk sanctions from the court. Previous Next Contact

News New York Court Permits Disclosure Of Social Media Activity In Personal Injury Lawsuit September 9, 2022 < Back Share to: Millions of Americans document their lives and activities on social media sites such as Facebook, Instagram and TikTok. When a person becomes injured in an accident and files a personal injury lawsuit, should defendants be permitted access to plaintiff’s social media? In Gentile v. Ogden, the New York Appellate Division, Second Department, recently addressed this question in a case involving a car accident. Plaintiff in that case alleged that she suffered serious neck, back and shoulder injuries that prevented her from performing her daily living activities. In light of such claims, defendants moved to compel the disclosure of all relevant social media activity from all of plaintiff’s social media accounts for a period of three years before the accident. The Supreme Court granted the motion and plaintiff appealed. The Second Department recognized that CPLR §3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof. It further observed that in order to receive such disclosure, a party need only show that the items sought are reasonably calculated to provide relevant information, not that the items actually exist. In rejecting plaintiff’s arguments and affirming the Supreme Court, the Second Department found that the defendants demonstrated that the plaintiff’s social media accounts were reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life. The Gentile decision confirms that a personal injury plaintiff’s social media activity is fair game in discovery where his or her physical condition is at issue and the request is tailored to seek information relevant to their damages claims. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Objections to Verdicts That Are Against the Weight of Evidence Always Preserved for Appeal (NY) November 15, 2019 < Back Share to: In Evans v. NYCT, the Appellate Division heard an appeal from the plaintiff for a new trial claiming the jury verdict was against the weight of the evidence. The City opposed the appeal because plaintiff failed to make a post-verdict motion to set aside the verdict and claimed the objection was thereby waived. The Second Department disagreed. Plaintiff was allegedly injured when she stepped off a bus owned and operated by NYCTA and into a pothole, causing her to fall. Plaintiff and a non-party witness testified that she stepped out of the back of the bus into a very large and deep pothole and she immediately fell to the ground. The jury found that the bus driver was negligent for letting plaintiff off in an area where there was a pothole, but did not find that negligence to be a substantial factor in causing the accident. Generally, you can only appeal a determination made at the trial court level. In considering plaintiff’s arguments, however, the court clarified that an appellant must never preserve a “weight of the evidence” argument for appellate review by making a post-trial motion to set aside the verdict. In making that determination, the court essentially overturned two prior decisions in Condor v. City of New York and Bendersky v. M & O Enters. Corp. The court concluded that an appeal can be taken from any final determination as an appellate court can review questions of law and fact and as such, the Court always has the authority to review the weight of the evidence. Upon hearing plaintiff’s appeal, the Court found it was logically impossible for the jury to conclude that a) the driver was negligent, but b) but that such negligence was not a proximate cause of the accident. As such, the matter was remitted back for a new trial. As a practice point, it is always best practice to preserve all appellate issues at the trial level, but there are certain rights that are never waived. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News We Didn’t Start the Fire: First Department Uphold Denial of Building Owner's MSJ (NY) October 13, 2017 < Back Share to: Living in New York City offers unmatched opportunities and experiences. There are, of course, trade-offs – high rents, small living spaces, and old infrastructures. Residents do the calculus and decide that living in New York justifies these downsides. Unfortunately, living in an older building can present additional considerations, including maintenance concerns and structural issues which, can lead to lawsuits. In Daly v. 9 East 36th LLC, the Appellate Division, First Department affirmed the lower court’s denial of defendant’s summary judgment motion. The apartment building was built in the 1930’s and there was no evidence that any interior electrical upgrade had ever been performed. On June 19, 2013, plaintiff, a tenant in the building, sustained personal injuries from a fire in his rent-stabilized studio apartment. The Fire Incident Report of the fire department’s Bureau of Fire Investigation found that the fire originated in an area of electrical wiring and noted multiple extension cords plugged in to one outlet with a power strip. Before the fire plaintiff had on multiple occasions requested to the building superintendent that more outlets be installed and showed the existing outlets were in disrepair. Plaintiff utilized extension cords for many of his appliances as a result. Plaintiff purportedly also complained that the fuses in the apartment would blow and shut down the electric in his apartment and occasionally the building. The super testified that he had conversations with the plaintiff regarding updating the electrical system and that the defendant had repeatedly refused to make repairs due to costs. The court denied the defendant’s motion for summary judgment finding that there was a triable issue of fact as to whether defendant had actual or constructive notice that a dangerous condition existed in plaintiff’s apartment that it failed to remedy, specifically that plaintiff’s expert opined that the building’s 1930’s electrical system constituted a dangerous condition and whether there was notice of the same. The majority of found that the building owner had a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others and that it was an issue of fact whether defendant’s decision not to upgrade the electricity kept the apartment reasonably safe. The majority was unwilling to conclude as a matter of law that plaintiff’s lifestyle and electrical consumption were above and beyond the reasonable needs of any modern tenant. The dissent argued that the plaintiff should have adapted his electrical usage to the building’s limitations rather than seek any kind of upgrade. Further, the dissent noted that the absence of any evidence that the building’s wiring did not meet code standards or was otherwise defective, no basis exists for imposing liability for declining to upgrade the building’s wiring to suit plaintiff’s electrical usage. The dissent’s arguments appear reasonable and account for a common sense approach. However, the majority, in allowing the matter to proceed, put considerable weight on the plaintiff’s expert testimony in spite of the fire marshal’s finding. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact