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News Eyewitness Accounts Of A Rear-End Motor Vehicle Accident Ignored In Summary Judgment Motion (NY) March 10, 2023 < Back Share to: Recent case law regarding rear-end motor vehicle collisions highly favors the front most car. It is increasingly difficult to dispute liability and defense counsel are typically left mitigating damages. This has been re-affirmed by a recent Second Department decision, An v. Abbate, 2023 NY Slip Op 00977, where the lower court’s decision was overturned and summary judgment was granted in favor of plaintiff. While, it comes to no surprise to some that plaintiff was awarded summary judgment on the issue of liability, what is surprising is what plaintiff was able to overcome in obtaining judgment in their favor. The accident occurred on Roosevelt Avenue near 154th Street in Queens. It appeared to be standard rear-end collision, plaintiff claimed to be fully stopped, and defendant’s vehicle came into contact with the rear bumper. However, Defendant Abbate was able to obtain an affidavit of an eyewitness who swore that while defendant was driving forward, he witnessed plaintiff’s vehicle go in reverse and back up before the two vehicles made contact. Despite this eyewitness affidavit, the Second Department overturned the lower court’s grant of summary judgment to defendant on the issue of liability and specifically stated that the eyewitness account “that the plaintiff’s vehicle was backing up at the same time was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault.” (An v. Abbate, 2023 NY Slip Op 00977 citing Rodriguez v City of New York, 31 NY3d at 323-324; Whitehead v David Rosen Bakery Supplies, Inc., 208 AD3d 533). Thus, courts are bending over backward to permit plaintiffs get their cases to a jury, and even ignore eyewitness accounts. Thanks to Christopher Palmieri for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Happy Thanksgiving to One and All From Your Friends at WCM! November 21, 2018 < Back Share to: We wish all of you and your families a Happy Thanksgiving and a wonderful holiday season! Previous Next Contact

News WCM Wins Again! Court Grants Time Bar Motion to Dismiss in NY July 25, 2024 < Back Share to: Hon. Judge Suzanne J. Adams, recently granted WCM's motion to dismiss plaintiff’s complaint in the case of New Liberty Pawn Shop, Inc. v. Certain Underwriters at Lloyd’s of London filed in the Supreme Court of the State of New York, New York County. Plaintiff New Liberty Pawn Shop Inc. (“New Liberty”) sought coverage under its policy of insurance issued by Defendants Certain Underwriters at Lloyd’s of London (“Underwriters”) after a reported theft. After the theft occurred, Underwriters conducted a preliminary investigation into New Liberty’s claim. Underwriters soon discovered that New Liberty was acting as the owner and controlling force behind Romanov Gold Buyers, another jewelry entity which was being criminally investigated. New Liberty did not disclose that it was acting as the controlling force behind Romanov on its application for insurance and essentially lied when filling out question 17(c) which required “the names and addresses of other locations of the proposer and of other concerns engaged in the jewelry trade under the same ownership or management as the proposer and not included in this proposal.” Underwriters determined that this misstatement was a breach of the policy and therefore disclaimed coverage on April 7, 2021. On October 27, 2023, thirty months after the disclaimer was issued, New Liberty filed suit against Underwriters asserting a cause of action for breach of contract. Notably, New Liberty’s policy contained Condition “n”, which provided that: “No suit, action or proceeding for the recovery of any claim under this Contract shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery of the insured of the occurrence which gives rise to the claim…” We argued that New Liberty’s delay in filing violated the unambiguous terms of the policy, and therefore New Liberty’s complaint should be dismissed. Judge Adams agreed, holding that New Liberty’s complaint and amended complaint filed on November 6, 2023 were time barred and dismissed with prejudice. Time bar provisions are generally disfavored and scrutinized carefully, but in this case, Judge Adams fully WCM's position, and found excuse for New Liberty having waited more than two years to test the merits of the disclaimer. An important win for WCM and for our clients in London. Nice work by Dennis Wade, Mike Bono, Martha Osisek and Dominika Tomasetti in a true team effort. Previous Next Dennis M. Wade Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Contact

News Seinfeld Suit Over Hidden Vegetables, Not That There's Anything Wrong With That January 8, 2008 < Back Share to: Former publisher of "Eating Well" magazine, Missy Chase Lapine commenced a lawsuit against Jerry Seinfeld and his wife Jessica Seinfeld, accusing Mrs. Seinfeld of copying her children's diet cookbook and Mr. Seinfeld of defaming her on Late Night With David Letterman and E! News. http://www.nytimes.com/reuters/arts/entertainment-seinfeld-lawsuit.html?_r=1&oref=slogin Previous Next Contact

News MTA's Self Critical Standard of Care Higher? ... Not in the Courtroom (NY) July 9, 2013 < Back Share to: In Williams v. New York City Tr. Auth., the First Department re-iterated a long-standing rule that a defendant cannot be held to a higher standard of care than required by the common law. At the second trial of liability—the first judgment was vacated for a different reason—the plaintiff introduced testimony from an MTA investigator that the operator of the bus that struck plaintiff was driving too close to the curb. The investigator, however, testified that the MTA’s operating criteria and standards are much higher than anyone else’s. On appeal, the First Department vacated the judgment, finding that the admission of the investigator’s testimony that the MTA holds its driver to a higher standard of care than required by the common law was clearly erroneous. Let this be a reminder to all companies, common carriers especially: although your regulations may hold your employees to a higher standard, for the purposes of legal liability, what matters is the common law. Special thanks to Gabe Darwick for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com .   Previous Next Contact

News A Tree Falls in Orange County, Does it Make a Sound (of Liability) (NY) December 11, 2020 < Back Share to: In Pozzani v. Village of S. Blooming, the plaintiff was driving through the Village when a tree fell on her car. Plaintiff sustained injuries, and sued the Village. There was no evidence that the Village knew that the tree was in an unsafe condition before the accident. The Village moved for summary judgment, arguing that it had no actual or constructive notice that the tree was in a dangerous condition. The Second Department agreed that the Village did not have actual or constructive notice of the alleged dangerous condition of the subject tree (see Ivancic v Olmstead, 66 NY2d 349 (Ct. of Appeals 1985); Harris v Village of E. Hills, 41 NY2d 446 (Ct. of Appeals 1977); Figueroa-Corser v Town of Cortlandt, 107 AD3d 755 (2d Dept. 2013). Plaintiff failed to put forth any evidence raising a triable issue of fact regarding notice. This case highlights the fact that the mere happening of an accident is not sufficient to impose liability on a defendant. Rather, the plaintiff bears the burden of establishing actual or constructive notice of the dangerous condition. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News An Expert Opinion Doesn't Always Defeat A Summary Judgment Motion (NJ) August 30, 2013 < Back Share to: In Muccia v. El Coronado Condo Assn, an unpublished opinion, New Jersey's Appellate Division affirmed the trial court's granting of summary judgment in a personal injury action to defendant, a resort association. Plaintiff rented a condominium in the resort and while inside her rented unit, tripped over one step leading from the living room to the foyer. At the close of discovery, defendant moved for and was granted summary judgment. Plaintiff appealed on the basis that her expert report created a triable issue of fact as to whether a hand rail was required for the step. The Appellate Division, however disagreed with plaintiff and affirmed the trial court's decision. The court highlighted that plaintiff's expert report was issued five days prior to plaintiff's deposition and months before any defense deposition. In addition, the court emphasized the assertions in defendant's expert report that the code provisions cited in plaintiff's expert report were inapplicable to the particular interior step at issue. Finally, the court noted that Bureau of Housing Inspection reports from 2004 and 2009 found the particular condo unit where plaintiff was injured to be absent of any violation (information also contained in defendant's expert report). Because plaintiff did not dispute the assertions in defendants expert report in her opposition to the summary judgment motion, the Appellate Division found that plaintiff's expert report did not raise a triable issue of fact. Special thanks to Alison Weintraub for her contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Frequent Elevator Misalignment Creates Issues of Fact (NY) October 8, 2020 < Back Share to: In Napolitano v. Jackson "78" Condominium, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment when plaintiff tripped while stepping into an elevator owned and/or managed by the defendants. The Supreme Court granted the defendants motions for summary judgment to dismiss the complaint insofar as asserted against them. Plaintiff allegedly tripped while going into the defendant’s elevator, and when she entered the elevator it was misaligned with the floor of the building’s lobby – which caused her fall. The Appellate Division stated that "A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect" (citations omitted). Although the defendant-property owners were able to establish that no complaints were ever made about the misalignment of the elevator, and that they performed routine inspections, plaintiff was able to raise a triable issue of fact whether the defendants had notice of the defective elevator. Specifically, plaintiff submitted an affidavit from another tenant in the building which asserted that she frequently observed misalignment of the elevator and that a member of the condo board acknowledged the problem in her presence. In addition, plaintiff’s expert alleged the defendants performed an unsatisfactory inspection three days before the accident. This decision serves as a reminder that property owners likely will not prevail on summary judgment if the defect at issue has frequently been an issue in the past and if they perform unsatisfactory inspections of the defect. Thanks to Corey Morgenstern for his contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Work Area By Any Other Name Would Still Be a Work Area (NY) January 26, 2017 < Back Share to: Victor Caminito was employed by a nonparty subcontractor on a 30-story building under construction that was ultimately going to be a condominium with retail space on the first floor. On the day of the accident, plaintiff spent the morning setting marble in the lobby of the building. After lunch, he was instructed by the project supervisor for the construction site, to clear out a room that was off the lobby, where many of the trades had stored their equipment and materials. In the process of removing material stored in it, plaintiff was injured when, while walking backwards with a wheelbarrow, he tripped and fell over a stack of metal studs located on the floor. In Caminito v Douglaston Dev., LLC, the plaintiff brought suit under Labor Law § 241(6) and claimed specific violations of the Industrial Code. That statute imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” contained in the New York State Industrial Code. Plaintiff's claim was predicated on Industrial Code (12 N.Y.C.R.R.) § 23-1(e)(2), which provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials”. The room where plaintiff fell was variously described as approximately 10' X 15' or 20' X 40' and had only one entrance/exit. Both plaintiff and the project supervisor testified at their depositions that the material in the room needed to be removed to complete its construction. The project supervisor testified that this room was part of the overall building construction project. Defendants moved for summary judgment to dismiss the Labor Law § 241(6) claim. Defendants argued that the area where plaintiff fell was not a “work area” but rather a storage room and thus not a work area as defined by the statute. The Court disagreed finding a question of fact as to whether the studs were scattered in plaintiff's work area. The testimony of both plaintiff and the project supervisor clearly stated that construction was going to take place in that room. Indeed, the purpose of removing the material stored in that room was to enable the construction work to take place. Although plaintiff was not actually performing his job as a marble setter at the time of the accident, under these circumstances his activities bring him within the ambit of the statute. Defendants have to be aware that scattered tools and building materials on a construction site presents a difficult fact pattern to overcome when analyzing liability under Labor Law § 241(6). Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News NY Court Holds Barricade Outside Normal Risk Of Skating August 4, 2009 < Back Share to: In Levin v. United Skates of America, Justice Kramer of Supreme Court, Kings County denied summary judgment to the owner of a skating rink in a suit brought by the parents of a child who was injured when he attempted to skate under a barricade that partially blocked an entrance to the rink. Defendants argued that the child’s injuries were the result of a risk the child assumed by skating at the rink. The court rejected this argument and held that the placement of the barricade was not a normal risk associated with skating. Indeed the court ruled that the barricade presented a “near irresistible challange” to youngsters who wanted to show off their skating prowess. The court held that questions of fact existed as to whether the child, eight years old at the time of the injury, appreciated the risk such that it could be determined that he assumed the risk of possible injury. Previous Next Contact

News Application of Revised "First Bite" Doctrine Results in Dismissal of Suit November 1, 2011 < Back Share to: In 2007, John Smith brought suit against Marijane Reilly because her dog broke free from its leash, ran into the street and collided with plaintiff Smith's bicycle. As a result of the collision, Smith was thrown over the handlebars of his bicycle and fell to the ground, causing injury. Defendant moved for summary judgment, citing that she had "no knowledge of her dog's alleged propensity to interfere with traffic." At trial, the Court denied defendant's motion, because the court ruled that the prior instances of the dog of escaping defendant's control and running towards the road constituted triable issues of material fact. The Court of Appeals disagreed and reversed, because the dog's prior actions were insufficient to raise a material issue of fact, since the dog had never specifically chased cars or bicycles before. The decision strongly suggests that in order for an owner to be liable for the actions of his/her dog, there must be evidence that the dog had a propensity to behave in a manner very similar to what is alleged in the case at bar. Here, the dog chased a bicycle, but because the dog had never specifically chased a bicycle in the street before, there was no triable issue of material fact regarding the dog's propensity. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07478.htm Previous Next Contact

News Insured’s Affiliates Not Named As An Insured? Court Says No Problem. Maybe. April 1, 2016 < Back Share to: An insurance policy might list only one named insured, and no additional insureds, but according to one recent New York Supreme Court decision, that does not necessarily mean the insured’s affiliates are not entitled to coverage. In El-Ad 250 West, LLC v. Zurich American Ins., Zurich issued a builders’ risk policy to a condominium developer. After Hurricane Sandy, the developer and its affiliated companies sought coverage under the policy for additional interest paid on construction loans and lost earnings resulting from delays in selling units in the building. The policy identified only the developer as an insured and did not name any of the affiliates as a named insured or an additional insured. In fact, the policy specifically provided that “[f]or the purpose of Delay in Completion Coverage only, the Named Insured shall be shown as below… There shall be no Additional Named Insureds, unless otherwise endorsed.” Relying on that language, and the fact that the affiliates were not listed on the policy, Zurich moved for partial summary judgment, arguing that the affiliates were not covered under the policy. The court denied Zurich’s motion. In doing so, the court relied on a long line of authority recognizing that “[t]he name of the insured in the policy is not always important if the intent to cover the risk is clear.” According to the court, if the parties intended to include the affiliates as insureds, there would be coverage, even if the affiliates were not identified in the policy. Applying that principle to the facts before it, the court held that summary judgment was inappropriate because there was evidence that “Zurich’s underwriting process appears to have accounted for the affiliates, suggesting it understood coverage might extend to them.” On the surface, it appears that the court was quick to abandon the well-established rule that extrinsic evidence is not be considered in the face of an unambiguous policy provision, but that really was not the case. In El-Ad, the court was not interpreting the scope of the covered risk, but rather the identities of the parties to whom the policy applied. El-Ad should serve as an important reminder to underwriters to understand the identities of their insureds, and whether the insured claims “affiliates” within its embrace. The good news is that El-Ad is not a broad invitation to examine extrinsic evidence to rebut unambiguous policy language. Thanks to Michael Gauvin for his contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact