News Can An Expert Conclude that Excessive Floor Cleaning Create a Dangerous Condition? (NJ) October 31, 2016 < Back Share to: In Elaine Anderocci v. Coach Inc., the Appellate Division for the Superior Court of New Jersey discussed whether plaintiff’s expert report was admissible to show defendant’s floor cleaning practices created a dangerous condition. Plaintiff was reaching for a handbag on a shelf in a Coach store when she slipped and fell fracturing her shoulder. Plaintiff argued that “[t]he very slippery floor was like a sheet of glass.” Plaintiff obtained a report from a wood flooring expert who described the wood flooring as "quartersawn walnut planks" installed in a herringbone pattern and milled with stress relief. Although the expert never examined the store’s floor, he concluded that the slippery condition of the floor was attributable to the use of excessive water in cleaning it. The expert based his conclusions on the record, which indicated it was Coach, Inc.’s practice to have the floor “damp mopped” three times per week. According to the plaintiff’s expert, if too much water is used to mop this type of flooring, the water can cause the surface to cup or crown—thereby creating a slippery and dangerous condition. The plaintiff’s expert cited to the National Wood Flooring Association (“NWFA”) maintenance guidelines, which state that floor crowning can be caused by “moisture imbalance” due to excessive water used when cleaning a wood floor. The court granted summary judgment to the defendant concluding that the plaintiff’s expert report comprised an inadmissible net opinion. He did not inspect the flooring, and accepted plaintiff’s deposition testimony at face value. There was no evidence in the record that defendant’s floor was “cupped” or “crowned.” Notably, the expert report did not establish why Coach, Inc.’s practice of damp-mopping the floor three times per week was too frequent, or conversely, too infrequent. Accordingly, the conclusions were too speculative to be admissible and were not sufficiently grounded upon facts in the record. Defense counsel should be cognizant that just because an expert is well versed in a specific area, if there is no objective evidence tying the conclusion to the specific facts of the case, it may be rejected by the court as an inadmissible net opinion. Thanks to Ken Eng for his contribution to this post.       Previous Next Contact

Sophia M. Summerill Law Clerk Pennsylvania ssummerill@wcmlaw.com (267) 857-9402 Professional Experience Sophia is a Law Clerk in our Philadelphia office assisting with civil litigation for liability actions. She obtained her J.D. from Drexel University’s Thomas R. Kline School of Law in Philadelphia, PA. During law school, she worked in the Civil and Fraud Divisions at the Delaware Department of Justice, at Duane Morris in the Pro Bono Program, and as a Summer Law Clerk at WCM’s Philadelphia office. While at Drexel, Sophia served as an Executive Articles Editor on Drexel’s Volume XVIII Law Review. Sophia also worked with the SeniorLAW Center providing legal services to Pennsylvania residents sixty years and older and assisted with Drexel’s Name Change and Naturalization Preparation Clinics. Honors and Distinctions Rising Advocate Scholarship News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Drexel University’s Thomas R. Kline School of Law B.A. in History, University of Delaware, cum laude Bar Admissions

News NJ Insurance Rescinded For Misrepresented "Spouses" January 13, 2010 < Back Share to: New Jersey Manufacturers Insurance Company was granted dismissal of an uninsured motorist claim when its rescission of a policy was enforced. The insured driver had misrepresented in her insurance application that she was married when, in fact, she was living with her fiancé. The insurer presented evidence that it would not have issued the policy had it known that the two were not wed. Instead, she would have been referred to a subsidiary company and quoted a significantly higher premium. Thus, the misrepresentation was material to the decision to write the policy. The insured persuaded the trial judge that her misstatement was not a willful concealment to induce the insurer to issue the policy. However, in an unreported decision, the Appellate Division made clear that a misrepresentation of an objective truth that is material to the underwriting process will support rescission if the insurer relied upon it regardless of the insured’s motive for the misrepresentation. See Henriques v. New Jersey Manufacturers Insurance Co., 2009 WL 5125021 found at http://www.judiciary.state.nj.us/opinions/a2755-08.pdf If you would like more information regarding this post, please email Denise Ricci at dricci@wcmlaw.com . Previous Next Contact

News Illegal Immigrant Using False Documentation Wins Workers Comp Benefits October 31, 2008 < Back Share to: The courts in NY have grappled with wage claims by undocumented immigrants ever since the US Supreme Court touched on the subject in 2003 in Hoffman Plastic Compounds v. NLRB. New York's highest court addressed the subject in 2006 in Balbuena v. IDR Realty. In the Balbuena case, an undocumented immigrant obtained employment without proffering any fraudulent documents -- he simply applied for a job and was hired. The court held that "in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, [federal law] does not bar the maintenance of a claim for lost wages by an undocumented alien." Thus, the court ruled that the plaintiffs in Balbuena were entitled to pursue a lost wage claim for injuries caused by the defendants' violation of Labor Law 240 and 241. Now comes Amoah v. Mallah Management, decided yesterday by an intermediate appellate court in Albany. Mr. Amoah arrived in the US legally with a seven-month visa that did not allow him to work. He obtained a job using a friend's name, social security number, and driver license. That is, in the words of the Balbuena decision, he "tendered false work authorization documents to obtain employment." Many months later (and long after his visa had expired), Amoah was injured on the job. He applied for workers comp benefits under his assumed identity. He had the support of his friend (who had loaned Amoah his identity) because his friend, who we will call "The Dealmaker," agreed to the scheme as long as Amoah shared half of the workers comp award and two-thirds of any recovery in a lawsuit. Mr. Amoah found these terms too harsh and revealed his true identity to the workers comp board. He then pressed on with his workers comp claim under his true identity. The appellate court ruled that Amoah is entitled to workers comp benefits even though he used false documentation to get his job and even though he used the same false documentation in applying for benefits. The court's rationale was that to deny benfits to Amoah would encourage employers to hire illegal aliens in the hope that they (the employers) would then be able to escape comp claims by these same illegal aliens. Previous Next Contact

News NY 1st Dept: Plaintiff's Testimony Alone As To Lighting Insufficient To Defeat SJ November 10, 2009 < Back Share to: In Brodie v. Gibco Enterprises, Ltd., the plaintiff, a patron in the defendant’s restaurant, tripped and fell on a single step that separated the bar from the dining area. The plaintiff claimed that the lighting in the bar area was inadequate. The restaurant moved for summary judgment on the grounds that the area above the step was lit by a recessed lighting fixture in the ceiling and that the step neither was inherently dangerous nor constituted a hidden trap. The lower court granted the defendant’s motion and the plaintiff appealed. In affirming the decision, the First Department found that the plaintiff's testimony alone, without any other admissible evidence as to the sufficiency of the lighting or the inherent danger of the step could not defeat summary judgment. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm Previous Next Contact

News Questions Surrounding Identity of Employer Precludes Summary Judgment October 7, 2016 < Back Share to: In Labor Law and common-law negligence cases involving accidents in the workplace, questions of fact as to the identity of the plaintiff’s employer sometimes arise, impeding summary judgment success. In Lam v. Sky Realty, Inc., plaintiff, a day laborer was asked by an acquaintance if he wanted to work one day on a renovation project, and he agreed. Plaintiff was given a handheld grinder, and shown where to cut an opening in a metal fence on the roof. While using the saw, the blade came loose injuring plaintiff. The building owner and tenant having renovation work performed moved to dismiss the Labor Law 200 and common-law negligence claims on the basis that they did not direct the means and methods of plaintiff’s work. However, since it was unclear who plaintiff’s employer was, who hired him, and who provided the saw, the court denied the motion finding issues of fact as to the roles of each of the parties. This case highlights the importance of eliminating questions of fact before moving for summary judgment. The identity of the “acquaintance” and who provided the saw etc. might have gone a long way in convincing the court to grant summary judgment. Thanks to Lauren Branchini for her contribution to this post.     Previous Next Contact

News Elevator Misleveling Evidence of Negligence May 27, 2011 < Back Share to: In Gutierrez v. Broad Fin. Ctr., LLC, the First Department revisited the doctrine of res ipsa loquitur. Gutierrez allegedly sustained injuries when she tripped and fell while exiting an elevator that had misleveled three inches below the floor of the building. The building owner was granted summary judgment on the basis that it did not create or have knowledge of the allegedly hazardous condition, but the elevator maintenance repair contractor was not so lucky. In affirming the lower court’s denial of the elevator contractor’s motion for summary judgment, the First Department held that the plaintiff had a viable negligence claim under the doctrine of res ipsa loquitur. That is, the alleged misleveling of the elevator is not an event that ordinarily occurs in the absence of negligence. Since the elevator contractor had exclusive control over the inspection, maintenance and repair of the subject elevator, the plaintiff had a viable cause of action against the contractor. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04372.htm Previous Next Contact

News WCM Wins Coverage Contest Against the City of New York April 1, 2016 < Back Share to: On a cold February 2011 morning, Frank Gunther was performing his security duties for the FDNY at a Staten Island firehouse when he allegedly slipped and fell on a temporary walkway. Gunther sued the City of New York, who tendered its defense to Security Fence Systems, Inc. who was responsible for snow removal, and Security Fence's insurer, XL Catlin. The policy identified the City as an additional insured -- but only for a single designated location: 9 Metro Tech Center, Brooklyn, NY. XL Catlin denied the tender, because that was not the location where the accident took place. The City settled the underlying action with Gunther for $750,000 and filed a declaratory judgment action, seeking reimbursement for this settlement (plus interest) from XL Catlin and Security Fence. WCM Partner Michael Bono and Counsel Steven Kaye moved for pre-discovery summary judgment, arguing that the additional insured endorsement limited coverage to a single location and because the accident occurred elsewhere, XL Catlin properly disclaimed coverage. The City argued it was entitled to coverage because the named location was the FDNY's headquarters -- a location where Security Fence did not even perform services. The Court agreed and awarded XL Catlin summary judgment. Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News 2nd Dept. Applies HO Exemption to Labor Law, Rejecting Plaintiff's "Voluntary" Work Theory (NY) December 12, 2019 < Back Share to: The New York Labor Law is a harsh statute that imposes strict liability in certain situations. One exception is the Homeowners’ Exemption, which exempts from liability the homeowners who occupy one and two-family dwellings, who contract for but do not direct or control the work.” This exemption was recently tested in the Second Department in Lazo v. Ricci. In Lazo, the plaintiff was the employee of a subcontractor that installed gutters on a project for the construction of a new single family home. The owners of the home moved for summary judgment on the grounds that they are the owners of a single family home and did not control the work. In opposition, the plaintiff argued the statute did not apply because the general contractor’s work may have been performed on a "voluntary" basis, implying that because the GC did the work for the homeowners as a "favor," the Labor Law exception did not apply. But the Second Department rejected this argument, and upheld the trial court’s decision to grant the defendant’s motion for summary judgment. In doing so, the court reasoned that the work that must be contracted for is the injured plaintiff’s work. Because the plaintiff was an employee, the homeowners’ exemption applied -- and the homeowners did not direct or control any of the plaintiff's work. The Labor Law remains strict. But the Second Department’s decision to strictly apply the statute as worded saved the defendants from Labor Law liability. It also saved common sense. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. 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 Vague E-mails not a "Signed Writing" under Copyright Act (NY) November 16, 2009 < Back Share to: Under the Copyright Act, the transfer of an exclusive license, including a license for distribution of a copyrighted work, must be effected through a signed writing from the copyright owner or its agent. The Copyright Act grants copyright owners a number of “exclusive rights,” including the right to distribute the work “to the public by sale or other transfer of ownership.” 17 U.S.C. § 106(3). Recently, in Weinstein Co. v. Smokewood Entertainment Group, LLC, plaintiff alleged defendant had conveyed the exclusive right to distribute a movie owned by the defendant through a series of confirmatory e-mails regarding the deal. When the defendant instead conveyed distribution rights to another company, plaintiff filed suit in federal district court, New York. Briefly, the substance of plaintiff’s e-mails were, “We are pleased to confirm our deal.” While the defendant’s responses were not outright rejections of plaintiff’s claims, the defendant commented on remaining, unsettled, details regarding the negotiations. The Court held that if a copyright owner's intention in writing is unclear -- even deliberately so -- there is no legally valid transfer. The purpose of the signed writing requirement is to ensure that the copyright owner deliberately transfers its ownership interest in such a way that provides the parties with a clear guide to their rights and responsibilities. Because the e-mails between the parties here failed to accomplish that, the Court dismissed the Complaint. If you would like more information regarding this post, please email mbono@wcmlaw.com . http://pdf.wcmlaw.com/pdf/einstein%20decision.pdf Previous Next Contact

News WCM Obtains Summary Judgment in Queens County, NY Labor Law Case December 7, 2012 < Back Share to: New York, NY Counsel Cheryl Fuchs and associate Georgia Stagias were awarded summary judgment in a Queens County, Labor Law case. In the case of Guaman v. Viewest Owners, LTD., the plaintiff alleged he was injured as he attempted to descend from a hanging scaffold onto a sidewalk bridge that our client, Everest Scaffolding, Inc., installed. Plaintiff alleged that his accident was caused in part by the fact that a portion of the sidewalk bridge was approximately 4 feet or 5 feet away from the wall of the building. We moved for summary judgment seeking to dismiss the Labor Law claims on the basis that Everest was not an “employer,” “owner” or “general contractor,” to which the Labor Law applied. In addition, we argued that Everest did not supervise or control the plaintiff’s work. The court agreed and dismissed the Labor Law claims as against Everest. In addition, we moved to dismiss the common law negligence claims against Everest on the basis that the fact that the bridge was not built directly abutting the facade failed to present an issue of fact regarding Everest’s negligence because either OSHA, the New York City Building Code, nor the New York City Administrative Code require that sidewalk bridges be placed directly against the building’s facade. The court also agreed with this argument and dismissed all common law negligence claims against our client. Previous Next Contact