News Ever Changing Description of Fall Credibility Issue for Jury (NY) November 25, 2013 < Back Share to: In testimony, parties attempt to capture history. What happens in but a fraction of a second can be a central and determinative issue in a lawsuit. Did a fall occur due to ice or was there a broken step? Such detail could mean the difference between a successful defense or case of liability. When a video camera captures the action, there may be more definitive proof. Otherwise, the jury is left to parse it out based upon credibility issues. In Muhammad v. New York City Housing Authority, the plaintiff's version of his fall changed over time. In his initially filed notice of claim, he alleged that his accident was caused by either snow/ice accumulation or a broken step. At his 50h Hearing, the plaintiff testified that he slipped on snow/ice and failed to mention the possibility of a broken step. Finally, at his deposition, the plaintiff testified that the accident was caused solely by a broken step. Based upon the ever changing description of the fall, the Housing Authority moved for summary judgment, arguing that the plaintiff’s deposition testimony was a feigned attempt to create an issue of fact. The lower court granted the motion, finding that the defendant was not negligent for the snow/ice condition which the plaintiff had originally identified as the cause of his accident. The First Department partially reversed the lower court’s decision, finding that the lower court should not have disregarded the plaintiff’s prior allegation in his notice of claim that the broken step caused his accident. Should a jury find that plaintiff fell on a broken step, the Housing Authority could be liable. On the other hand, the appellate court upheld summary judgment on the issue of potential liability for a snow/ice condition. In remanding the matter for trial, the appellate court held that the inconsistencies between the plaintiff’s 50h testimony and his deposition testimony raise issues of credibility that should be left for a trier of fact. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Call Your Next Witness - Ross Mallor of PM Legal September 15, 2021 < Back Share to: On today's episode of the Call Your Next Witness podcast, we welcome Ross Mallor of PM Legal. Ross is a true entrepreneur in the litigation arena in the northeast United States. Since joining his father at PM Investigations, now PM Legal, the company has grown from a 2-person investigation company into a 200+ employee company, which conducts investigations for both plaintiffs and defendants, provides litigation support, handles service of process and court filings, and is also now affiliated with elaw and Lexitas. Ross takes advantage of technological innovations, keeps an open mind about new opportunities, and most importantly, listens to his clients. Aside from that, Ross is a fantastic storyteller, and in this interview, relays some great stories about his business practices over the years, a few about conducting surveillance, and even one about playing poker with actor Kevin Pollack. (This story is worth the price of admission.) For more information about Ross's company, check out PMLegal.com Listen to my interview with Ross here: https://lnkd.in/ejnHZK8k -- or search for Call Your Next Witness wherever you download podcasts. If you are interested in being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Home Is Where The Heart Is (NJ) July 11, 2019 < Back Share to: In Cohen v. Starbucks, Starbucks moved to dismiss plaintiff’s action for lack of personal jurisdiction, which was filed in the United States District Court for the District of New Jersey. Plaintiff, a resident of New Jersey, was a customer at a Starbucks in Mexico. At that store, plaintiff fell and suffered an injury. As a general matter, a court must have personal jurisdiction over a defendant. There are two types of personal jurisdiction: (1) general; and (2) specific. A court with general jurisdiction may hear any claim against an out-of-state defendant, even if the underlying claim occurred in a different state. However, to assert general jurisdiction, a defendant’s contacts with the forum state must be “continuous and systematic” and only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there. For a corporation, the paradigm forum for the exercise of general jurisdiction is the state in which the corporation is fairly regarded as “at home.” A corporation is “at home” in a forum state if it is incorporated there or has its principal place of business there. On this basis, Starbucks moved to dismiss the complaint on personal jurisdiction grounds, arguing that its “home” is Washington State where it is incorporated and has its principal place of business. Plaintiff opposed the motion, arguing that Starbucks has continuous and systematic contacts with New Jersey. The District Court disagreed, noting that Starbucks is incorporated and has its principal place of business in Washington. The Court ruled that Starbucks' presence in New Jersey did not render it “at home” in New Jersey. Accordingly, the Court transferred the case to Washington. This case is a good illustration of how difficult it is to assert general jurisdiction. An exercise of general jurisdiction is reserved for an exceptional case. Such an exceptional case would be a corporation that relocates its headquarters while remaining incorporated in another state. A litany of stores operated in a state is insufficient for a court to exercise general jurisdiction over a claim involving an accident not occurring in the forum state. Thank you to Michael Noblett for his contribution to this post. Please email Colleen E. Hayes with any questions.   Previous Next Contact

News Appellate Division Gives Teeth To Kings County Discovery Order January 10, 2008 < Back Share to: In Trataros Construction Inc., v. New York City School Construction Authority, 2007 NY Slip Op 10526, AD Index 2006-02660, 2006-08769 (Kings Co. Index 20213/01), defendant sought the depositions of Costas Trataros and Nicos Trataros of the plaintiff company, and moved to compel their depositions. The trial court ordered these depositions be held by a date certain or the witnesses would be precluded from testifying at trial. When plaintiff expressly refused to produce these witnesses despite the court order, defendant sought leave to renew its motion, which was denied by the trial court. In reversing the trial court, and upon renewal, granting defendant's motion to dismiss plaintiff's case unless the two witnesses were deposed within a date certain, the Appellate Division-Second Department felt that the trial court failed to account for the willful and contumacious behavior of plaintiff, requiring more than mere preclusion for a sanction. Previous Next Contact

News Reading is Fundamental: Plaintiff’s Counsel Sanctioned for False Allegation in Complaint (NY) June 1, 2010 < Back Share to: Plaintiff filed a shareholder dispute, alleging, in part, that the defendants made false and misleading statements regarding the financial condition of the subject company, causing plaintiff to invest to her detriment. One of the allegations cited to internal e-mail correspondence among the defendants that took place on March 7, 2007, as support for the claim that the defendants had previous knowledge about the financial troubles and then disclosed contrary information to the public. While litigating a motion to dismiss, plaintiff’s counsel revealed that he learned about the internal e-mails at issue in an article published in Business Spectator magazine. However, counsel subsequently realized that the reference in the article to “March 7” e-mails addressed 2008 e-mails and not 2007, as alleged by plaintiff. This was critical, because this e-mail exchange actually occurred after the company’s public collapse. Counsel conceded the allegation was false, but that it was unintentional. Rule 11 of the Federal Rules of Civil Procedure requires that factual contentions in pleadings have evidentiary support. In order to comply with the rule, an attorney must make reasonable inquiries into the facts. Here, the Court focused on the fact that this was a “material allegation central to the viability of the entire pleading” -- and thus the failure of the attorney to conduct any further inquiry into that fact was “an act of gross negligence bordering on recklessness.” The Court found this was the type of conduct Rule 11 was meant to address, and imposed sanctions, including the granting of all of the defendant’s legal fees, pending a showing that such an award does not represent an “unreasonable burden.” If you have any questions about this post, please contact mbono@wcmlaw.com http://www.nylj.com/nylawyer/adgifs/decisions/051410cote.pdf Previous Next Contact

News Failure to Establish Necessary Material Facts in a Rule 4:46-2 Statement Leads to Reversal of Summary Judgment < Back Share to: The New Jersey Appellate Division recently reversed an award of summary judgment in a coverage dispute for the parties’ failure to properly establish the necessary facts as required by Rule 4:46-2. In On Target Staffing, LLC v. Zurich American Insurance Company , the Court addressed motions regarding Zurich’s duty to defend and indemnify On Target Staffing (“On Target”) for the claims asserted in an automobile accident case involving several On Target employees. On Target is a temporary staffing agency and the accident occurred when its employees were driving from their work location to On Target’s office. Zurich disclaimed coverage for the employees’ lawsuit under commercial general liability and automobile liability policies based on several policy exclusions. On Target sought declaratory judgment action against Zurich but the trial court found that there was no coverage and awarded summary judgment to Zurich. In reviewing the record, the Appellate Division found that the parties’ Rule 4:46-2 Statement of Material Facts detailed the provisions of the applicable policies and that Zurich rejected On Target’s tender for coverage. However, the statements established only “sparse” additional facts concerning the employees’ activity and details of the accident, including that On-Target deducted funds from employees’ paychecks to pay the driver for “his contracted transportation services.” The Court noted that “other than those cursory facts that were established as undisputed in Rule 4:46-2 statements, the parties offered no other facts in accordance with the Rule.” Despite that, the parties’ summary judgment arguments, and the trial court’s findings of fact, were based on information not established in the statements and that were “gleaned by rummaging through deposition transcripts.” In reversing the award of summary judgment to Zurich and remanding the case for further proceedings, the Appellate Division observed that “Rule 4:46-2’s requirements are not procedural niceties that may be ignored by the parties or the court.” The Court criticized the trial court for making findings of fact that were not properly set forth in the parties’ Rule 4:46-2 statements. The Court added that the facts laid out in the parties’ statements were “wholly inadequate to support a determination that either party is entitled to judgment as a matter of law.” Specifically, the Court refused to address the “hired auto” exclusion relied on by the trial court because the parties’ statements did not offer any facts permitting a determination as to whether the exclusion applied. This decision highlights the importance of providing a detailed Statement of Uncontested Material Facts when moving for summary judgment. The decision shows that New Jersey courts will not award summary judgment, or affirm an award on appeal, unless the supporting facts are properly set forth in a Rule 4:46-2 statement. ON-TARGET STAFFING LLC v. ZURICH AMERICAN INSURANCE COMPANY .pdf Download PDF • 227KB Previous Next Contact

News NJ Appellate Division Limits Release in Equine Liability Case August 5, 2009 < Back Share to: Although known as the "Garden State," New Jersey is also home to many riding schools, stables and horse farms. It has the Meadowlands Racetrack, Monmouth Park Racetrack and Freehold Raceway just to name a few. Not surprisingly, New Jersey has a statute limiting the liability of the operators of equine activities. Many experienced operators supplement these statutory protections by requiring participants to sign detailed release and waiver forms to protect the operator from any claims for bodily injury. Can a release provide protection beyond those provided by statute? In other words, may a release protect an operator from risks that are specifically beyond the scope of immunities provided by New Jersey's Equine Activities Liability Act? According to Hubner v. Spring Valley Equestrian Center, the answer is "no." In Hubner, plaintiff was injured when her horse tripped over training poles embedded in the the floor of defendant's barn. Two issues confronted the appellate court. First, did the statute protect the equine operator under these circumstances? Second, if not, did the release signed by plaintiff release the defendant from liability? The court decided that the statute did not apply under the facts presented in Hubner. But, more importantly, the court invalidated the release as a violation of public policy. It reasoned that the legislature set forth the circumstances under which an equine operator would be entitled to immunity for claims arising out of equine activities. Thus, the enforcement of the release in a scenario where the operator is not entitled to statutory immunity would undermine "the balance of risks and costs" made by the legislature in the Equine Activities Liability Act. http://www.judiciary.state.nj.us/opinions/a4723-07.pdf Previous Next Contact

News Court Denies Class Certification; Rules Each Insurance Policy Must Be Considered as an Individual Contract February 7, 2020 < Back Share to: Insurance policies are contracts. For that reason and others, insurers benefit when courts approach their policies from a contract perspective rather than a public policy perspective. Related to this point, a Tennessee federal judge recently denied class certification to a group of policyholders who brought suit against North Carolina Mutual Life Insurance Company. The underlying complaint alleges breach of contract and claiming problems with policy loans and rider benefits affecting thousands of other policies. In order for a group of plaintiffs with an array of claims to even be considered for class certification, a court must first determine whether the particular class action is the best option to manage the multiple claims. In McClendon v. North Carolina Mutual Life Insurance Company, Marietta McClendon of Brentwood, Tennessee sued North Carolina Mutual, alleging breach of contract, alleging problems with policy loans and rider benefits affected thousands of other policyholders. The complaint alleges that her mother had taken out a life insurance policy of $10,000 on her son in the 1980s in Alabama. McClendon then took a $1,500 loan out against the policy in 1995, agreeing to a 5% interest rate, and when she died in 2005 her son took over payments. In 2009, when North Carolina Mutual assumed more than 52,000 insurance policies from several Alabama companies, that particular portfolio also included McDaniel’s policy. After taking over the policy, the company then charged a higher 6% rate on the loan. Plaintiff’s Complaint further asserts that the payments made on the loan amount by McDaniel’s son after her death, during the period of 2009 to 2016, was snaffled by the company. Moreover, plaintiff claims that the life insurance payment McClendon received after her brother died last year was then reduced. A motion for class certification under Rule 23 requires class members to satisfy all four of the Rule 23(a) prerequisites: numerosity, commonality, typicality, and adequate representation. The four requirements serve to limit class claims to those that are fairly encompassed within the claims of the named Plaintiffs, because class representatives must share the same interests and injury as the class members. Failure to meet any of these elements will result in the denial of class certification. In addition to the four prong criteria, Courts must also take into account a second part to the overall analysis whereby a class must fall within one of the three typed of actions listed in Rule 23(b). Most importantly, the party seeking class certification has the burden to prove the Rule 23 certification requirements. Following a rigorous analysis of the aforementioned criteria by the Court, Judge Campbell eventually disagreed with Plaintiff’s contention that the loan class members shared the same injury. The court determined that the interest rate on each loan being identical does not in itself establish breach of contract, and that each individual contract’s terms would have to examined to determine whether there was a breach of contract. Moreover, the issue as to whether the loan payments were improperly applied to each loan balance, would require a case by case examination of each loan. In other words, each contract would be treated as an individual contract. And that benefits insurers. Thanks to James Papadakis for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News Plaintiff Shocked by Decision Granting Defendants Summary Judgment (NY) August 25, 2016 < Back Share to: The Appellate Division, Second Department, recently decided Lococo v. Mater Cristi Catholic High School, et al. 2016 NY Slip Op 05796, wherein it reversed the decision of the lower Court and granted summary judgment in the defendants' favor. Plaintiff, an employee of an independent catering company, was injured while working at defendant school when she tried to plug an extension cord she found on the premises into the wall. (The Court does not elaborate on the injury -- there may have been an electrical shock, based upon the reference to the extension cord, but this is speculation on our part.) Plaintiff claimed that the defendant school created the condition, had both actual and constructive notice of the condition and were liable under the theory of res ipsa loquitor, the theory that the incident could not have occurred absent an act of negligence. While the lower Court found a question of fact as to notice, the Appellate Division found that the School proved it did not create the condition, or have any notice thereof. Additionally, the Court stated that res ipsa loquitor is inapplicable as it was established that the extension cord was not in the school’s exclusive control as plaintiff and her company also had access to it. This decision emphasize the importance of the notice requirement in a premises case. The doctrine of res ipsa loquituir, alleged by plaintiff, is misplaced here. Frankly, any reference to the doctrine operates as a tacit admission that shows that plaintiff cannot prove notice. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Denies Discontinuance Request Due to Improper Venue (NY) May 27, 2016 < Back Share to: A recent decision dealt with an interesting tactical issue and the consequences for filing in the wrong venue. In Marinelli v Wimmer, plaintiff filed a personal injury case in Kings County Supreme Court (which is Brooklyn - a plaintiff friendly venue). However, the defendants contended venue was not proper because plaintiff no longer lived at the address as pleaded in the complaint and moved to change venue to Suffolk County. In response, the plaintiff filed a cross-motion for leave to discontinue the case without prejudice if the Court granted the motion to change venue. Plaintiff intended to re-file the action in Kings County, and plead a different Brooklyn address. The Kings County Supreme Court issued a decision changing venue to Suffolk County, and denying the plaintiff’s cross-motion to discontinue. The plaintiff filed an appeal to the Second Department Appellate Division, admitting that venue was not proper in Kings County, but arguing that his cross-motion to discontinue should have been granted by the trial court. The appellate decision held that an application to discontinue should generally be granted; however a plaintiff is not entitled to this relief as right, but with the sound discretion of the court. A court should not grant a motion to discontinue when “the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results.” Applying these principles, the Court found that the Kings County Supreme Court providently exercised its discretion in denying the plaintiff’s request for leave to discontinue, since the request was improperly sought to avoid the consequences of the Court’s decision to change venue to Suffolk County. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Workers’ Compensation Carriers can Subrogate against tortfeasor, even though Plaintiff Couldn't (NJ) December 14, 2018 < Back Share to: On December 14, 2015, David Mercogliano, an NJ Transit employee, was driving a car owned by NJ Transit when he was struck by another motorist. As a result of the accident, Mr. Mercogliano only suffered minor injuries and therefore his injuries did not overcome the verbal threshold. He was barred from suing the other driver. However, he was still able to receive workers’ compensation benefits through NJ Transit’s workers’ compensation carrier. They paid out a total of $33,625 as compensation for his medical bills and indemnity benefits. In an effort to recoup the money that was paid out, the workers’ compensation carrier filed a subrogation action against the driver of the other vehicle. A Superior Court judge granted summary judgment against the workers’ compensation carrier, ruling that the Automobile Insurance Cost Reduction Act barred the subrogation claim. The workers’ compensation carrier appealed this decision and the Appellate Division overturned the lower court’s ruling. Last week, the three-judge panel held that even though Mr. Mercogliano could not recover benefits from his own automobile insurance or sue the other driver for non-economic damages, the workers’ compensation carrier had the right to file a subrogation claim. Their rationale was all about legislative intent. The court said that the Workers’ Compensation Act applies, not the Automobile Insurance Cost Reduction Act. And if the legislature wanted to bar these claims they would have included that language in the AICRA, which was drafted 87 years after the WCA, but they didn’t. What does this ruling mean? Well, if it is determined that a plaintiff’s injuries do not meet the verbal threshold in NJ, that doesn’t mean the insurance carrier is in clear. Yes, the insurance carrier won’t need to pay out non-economic damages to the plaintiff, but if the plaintiff was in the scope of his employment at the time of the accident, the motor vehicle insurance carrier needs to be aware of a potential subrogation claim from his employer’s worker’s compensation carrier. Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Don’t Be Shocked by Denial of Labor Law 240(1) (NY) June 18, 2021 < Back Share to: The New York Supreme Court, Kings County has recently held that if a plaintiff is doing non-electrical work at a construction job site but touches live electrical wires and then falls from a height after being electrocuted, that plaintiff is not entitled to summary judgment pursuant to Labor Law 240(1). In Synysta v. 450 Partners LLC, the plaintiff, a painter, was on a Baker’s scaffold and was spackling the tops of columns 10-12 feet high. The plaintiff’s employer had been hired to paint walls, ceilings, and doors, at a renovation. In the process of performing this work, the plaintiff was trying to reach around the column and held onto an electrical box for support. The plaintiff claimed that when he grabbed the electrical box he received an electric shock, which caused him to fall from the Baker’s scaffold to the ground and sustain injuries. The plaintiff asserted causes of action against the property owner and the general contractor based upon alleged violations of Labor Law 240(1), 241(6), 200, and common law negligence, but only moved for summary judgment on the Labor Law 240(1) and 241(6) claims. The plaintiff’s motion for summary judgment on Labor Law 240(1) and 241(6) claims centered on the argument that the Baker’s scaffold was defective in some way and did not have proper safety railings. However, the Supreme Court held that although the plaintiff was performing work covered under Labor Law 240(1) when he was injured, his work had nothing to do with the electrical box which contained the live wires – and therefore the defendants had not violated Labor Law 240(1) by failing to provide safety materials specifically to prevent plaintiff from falling as a result of being electrocuted. Thanks to Shira Strauss for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact