News Introducing WCM’s 2022 First Year Associates September 20, 2022 < Back Share to: We are pleased to introduce WCM's newest team of first year associates, who are starting with us this week across our New Jersey, New York and Pennsylvania offices. New Jersey Harry Harnitchek is a graduate of Rutgers Law School and was a staff editor on the Rutgers Journal of Law and Public Policy. Harry completed undergraduate studies at the University of Pittsburgh. Prior to joining WCM, Harry was a judicial intern for various magistrate judges and interned with the Montgomery County Public Defender’s Office. Harry is an avid gardener and chess player. Yifan (Sherry) Lin is a graduate of Brooklyn Law School and was president and founder of the International Law School Organization and member of the ADR Honor Society. Sherry completed undergraduate studies at Rutgers University. Prior to joining WCM, Sherry interned with an immigration firm and was a judicial intern for a New York County Supreme Court judge. Sherry is native proficient in Mandarin, and elementary proficient in Japanese and Italian. New York Alexander Rabhan is a graduate of Benjamin Cardozo School of Law and was president of the mentorship program for the first years and senator of the Student Bar Association. Alex completed undergraduate studies at the University of Miami. Prior to joining WCM, Alex interned with several civil litigation firms and with the New York Legal Assistance Group. Christopher Palmieri is a graduate of Touro College Jacob D. Fuchsberg Law Center and was an editor on Law Review. Chris completed undergraduate studies at Pennsylvania State University. Prior to joining WCM, Chris interned with a commercial litigation firm, interned with a Nassau County Supreme Court judge, and worked as a legal assistant. Lauren Howard is a graduate of St. John’s University School of Law and was a staff member of the New York Real Property Journal. Lauren completed undergraduate studies at SUNY Geneseo. Prior to joining WCM, Lauren interned with a civil litigation firm, an employment and labor litigation firm, and participated in a litigation clinic that focused on consumer justice for the elderly. Rebecca Pasternak is a graduate of St. John’s University School of Law and was an editor on the New York International Law Review. Rebecca completed undergraduate studies at SUNY Binghamton. Prior to joining WCM, Rebecca was an MLB salary arbitration intern and an intern with the US Court of Appeals for the Second Circuit’s civil appeals mediation program. Pennsylvania Brenna Jeffries is a graduate of Drexel University Thomas R. Kline School of Law and was a member of its Moot Court Board. Brenna completed undergraduate studies at Townson University. Prior to joining WCM, participated in internships that focused on elder law and with the Philadelphia Legal Assistance. Erin Gallagher is a graduate of Temple University James E. Beasley School of Law and was a staff editor on Temple Law Review. Erin completed undergraduate studies at Brown University. Prior to joining WCM, Erin interned with the US Department of Education – Office for Civil Rights and was a legal research assistant for various professors. Erin is fluent in German. Erin Russell is a graduate of Drexel University Thomas R. Kline School of Law and was on the Moot Court Board. Erin completed undergraduate studies at Franklin & Marshall College. Prior to joining WCM, Erin interned with a commercial litigation firm and was a judicial intern with the United States District Court for the Eastern District of Pennsylvania. Erin is an avid softball player. Haley Matthes is a graduate of Widener University Delaware Law School and was a member of Phi Alpha Delta Law Society. Haley completed undergraduate studies at Lafayette College. Haley was a summer intern at WCM and prior to that interned with the Northampton County Court of Pleas, with The Office of Pennsylvania Attorney General, and was selected as the only intern to serve The Office of Roderick Stewart, MP in London, England. Jean Scanlan is a graduate of Villanova University Charles Widger School of Law and was a member of the St. Thomas Moore, Pro Bono and Family Law Societies. Jean completed undergraduate studies at Temple University. Jean was a summer intern at WCM and prior to that was a judicial extern with the Court of Common Pleas – Civil Division. Sarah Polacek is a graduate of Drexel University Thomas R. Kline School of Law and was an editor on Law Review. Sarah completed undergraduate studies at the University of Delaware. Prior to joining WCM, Sarah interned with civil litigation and family law firms and was a judicial intern with the United States District Court for the Eastern District of Pennsylvania. Stephen Kerstein is a graduate of Temple University James E. Beasley School of Law and was a staff editor on Temple Law Review and president of the Jewish Law Students Association. Stephen completed undergraduate studies at Indiana University. Prior to joining WCM, Stephen interned with a civil litigation firm, was a class and research assistant for two professors and interned with a congressman in the US House of Representative. Previous Next Contact

News Woman Awarded $1.19 Million “Aberration” Verdict in UIM Case (PA) May 2, 2016 < Back Share to: A jury in Beaver County awarded a woman $1.2 million in Alviani v. Horace Mann Insurance. The suit arose from in a July 18, 2012 when the plaintiff, Britney Alviani, was the passenger in her boyfriend’s car when it was struck head-on by Jodi Morrison. Alviani was thrown forward where she struck the windshield and suffered a laceration to her face and multiple abrasions and bruises. She also suffered injuries to her right knee and elbow. According to the pre-trial memorandum, Morrison was driving under the influence and left her lane of travel. She was later convicted of DUI. Follow-up care showed that Alviani had a significant injury to her right elbow. She underwent two surgeries and various other medical treatments and was diagnosed with chronic pain syndrome. Plaintiff’s counsel employed a medical expert who opined that Alviani’s injury is permanent and that she will not be able to return to her job as a barber’s apprentice. The pre-trial memo also stated that Alviani is unable to lift more than one pound and has trouble engaging in recreational activities. The defense team employed their own expert who stated that Alviani was able to be gainfully employed and pointed to her own testimony which stated that she was currently working on a full-time basis and earning more than a barber’s apprentice. Morrison only carried $15,000 in liability coverage but Alviani was insured under five additional auto policies which provided $50,000 in UIM benefits each. Alviani requested $65,000 for lost wages, $892,000 - $1.14 million for lost earning capacity, and a $250,000 UIM claim. The defense offered a final settlement of $115,000. After a four day trial, the jury deliberated for five hours and returned a $1.19 million verdict which included $65,488 in past lost earnings, $1 million in lost earning capacity, and $100,000 for pain and suffering. Defense counsel called the verdict an “aberration” and says that he will appeal. This case demonstrates the potential for high damages if there is a finding of a permanent injury and also the ability of plaintiffs to stack other insurers through UIM coverage. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News School Properly Responded To Threat Against Student (NY) June 7, 2013 < Back Share to: Schools have a duty to adequately supervise students, but are not insurers of student safety. A school will only be held liable for injuries intentionally inflicted by another student where it is established that the dangerous conduct could have been reasonably anticipated. Following this rationale, in Conklin v. Saugerties Central School the Third Department dismissed a claim for negligent supervision. There, plaintiff’s father discovered comments on his daughters MySpace account indicating that another student, Edwards, intended to fight her. The next day, the school’s social worker met with the girls, and both denied any intention to engage in a physical altercation. School officials also met Edwards to discuss the disciplinary implications of fighting. Edwards told the school she had no intention of fighting and had made no threats to do so. Later, Edwards pulled plaintiff to the ground by her hair and repeatedly punched her in the head. Notwithstanding the prior notice of the attack, the Appellate Division found that the school reasonably responded to the rumor of a threat, determined it was unfounded and could not have anticipated the assault. The court also noted that Edwards's disciplinary file showed no history of fighting or violence. Finally, the court found that the MySpace post was merely a rumor rather than a direct threat. Accordingly, the school was awarded summary judgment. When a school receives notice of a potential threat, the Appellate Division will carefully scrutinize all efforts made to address and prevent the assault. If a school has taken reasonable steps to address the claim, the school may avoid liability. Thanks to Bill Kirrane for his contribution to this post. If you have any questions about this post please email Paul Clark at pclark@wcmlaw.com .   Previous Next Contact

News Be Wary of Title of “Subcontractor” in Labor Law Actions July 11, 2018 < Back Share to: In Dan Eliassian v. G.F. Construction, Inc., plaintiff, an owner of a single-family house, hired defendant to perform excavation work to prepare for the addition of a room to the home. Plaintiff did so in his capacity as president of Alliance Real Estate, Inc. After defendant completed phase one of the project, and was off-site, plaintiff visited the property to “inspect the work” when he slipped on oil which he alleged leaked from a defective hydraulic line of a backhoe brought to the site by defendant and used by the defendant in its work. Plaintiff sued defendant alleging violations of Labor Law 200, 240, and 241(6).Defendant moved for summary judgment on the Labor Law 240(1) and 241(6) causes of action on the basis that plaintiff was not “employed” at the site within the meaning of the Labor Law, and defendant was not an owner, agent, or general contractor responsible for the work site. Plaintiff opposed the motion with an affidavit in which he stated that he was on site specifically to inspect the work. The lower court denied defendants’ motion for summary judgment. On appeal, the Second Department found that an individual inspecting the work on behalf of a general contractor is a protected activity covered by Labor Law 240(1) and 241(6) if the individual can show that they were both permitted to work on a building or structure, and were hired by someone. Here, as plaintiff was on his own property on behalf of his company Alliance to inspect the progress of the work of the defendant, a subcontractor hired by Alliance to perform excavation work, he was a proper plaintiff under Labor Law 240(1) and 241(6). Further, the defendant’s claim that it was not the general contractor or agent of the owner was insufficient to defeat summary judgment, as a subcontractor may be liable for violations of those provisions if the owner or general contractor delegated to the subcontractor the duty to conform to the requirements of the Labor Law by granting the subcontractor authority to supervise and control the work that brought about the injury. Since defendant was the only contractor working at the site, and had exclusive control over directing the work and implementing safety measures, and plaintiff was merely on site to inspect the progress of the work, there were triable issues of fact as to whether the defendant could be liable under Labor Law 240(1) and 241(6) on the ground that it had control of the work site and was delegated the duty to enforce safety protocols at the time of the incident, despite the fact that the defendant was not the owner or acting as the general contractor. As such, the Second Department affirmed the denial of defendant’s motion for summary judgment. This case is significant in reminding defendants that regardless of the titles assigned to construction companies in contracts (“contractor,” “general contractor,” or “subcontractor”), a defendant may still be found liable under the Labor Law if it had control over, and ability to direct, the work, and control over safety procedures at the project site. Thanks to Valerie Prizimenter for her contribution to this post. Previous Next Contact

News Calder Ruling Creates New Issues for Art Owners and Insurers (France) July 2, 2020 < Back Share to: A recent ruling from the Paris Court of Appeals highlights some of the peculiar risks related to purchasing (and insuring) art in international jurisdictions. The renowned American sculptor Alexander Calder lived and worked for much of his life in Saché, France. One of his works, the large stabile, Porc qui pique, 1963, was exhibited and photographed such that its creation and appearance are well-documented. However, at some point the work fell off the map and its location was unknown. The work appeared to suddenly reemerge when it was sent to the Calder Foundation—a 501(c)(3) non-profit whose mission is “collecting, exhibiting, preserving, and interpreting the art and archives of Alexander Calder”—by of a chain of hoteliers in France named Belambra, who had come to possess the work by unclear means. Belambra hoped to have the work examined and confirmed against the Foundation’s archives in order to sell it with Artcurial auction house. However, the Calder Estate had previously registered Porc qui pique with the Foundation as missing from their collection, and the Calder Foundation notified the Estate of the discovery. There was no record from Alexander Calder of a sale or gift to explain its presence at the resort where it was found, though Belambra provided uncorroborated witness testimony it had used a government program to fund the purchase of the stabile. A dispute over the work’s ownership ensued in the French courts between the Calder Estate and the Belambra Hotel Chain, with the Calder Foundation added as a nominal party to the action. Ultimately, the Tribunal issued an extremely problematic decision, relying on typos in exhibition catalogues for the date of Porc qui pique, simultaneously ruling the work was, as a matter of law, created by Alexander Calder, yet not the work Porc qui pique. The Court was evidently unmoved by the photographic evidence, including contemporaneous images showing the work labeled as “Porc qui pique,” and witness testimony from two individuals with personal knowledge of the piece. Instead, the work is now—legally, in France—an untitled work of Calder’s with no historical record of its existence. Given French law and the additional fact-finding role of judges in France as opposed to the United States, the ruling would have been exceedingly difficult to appeal. So, now in the event Belambra wishes to sell the piece, as they are currently attempting to do with Artcurial (https://www.artcurial.com/en/lot-alexander-calder-1898-1976-sans-titre-1963-stabile-en-acier-peint-3995-34), they cannot call it Porc qui pique, because as a matter of law the work is not Porc qui pique, despite virtually all of the historical evidence. Instead, they must refer to it as an untitled work of entirely mysterious origin, which seems to also be encumbered by an apparent violation of the moral right artists have to name their creations. From an art insurer’s perspective, in the event of a casualty to the work the question of loss in value is exceedingly complex, and this judgment creates new uncertainty in the identity of works in certain jurisdictions, particularly if they are vulnerable to as common of a mistake as a typo in an exhibition catalogue. Although the ruling appears to have been designed to quell issues of title to the work, what is the market value of a piece of art constrained by this odd judgment? Moreover, this ruling creates uncertainty as to whether the Estate still retains an interest in Porc qui pique, which this work, according to the Court, is not—particularly in another jurisdiction. And, for works which would ordinarily be the subject of French law, insurers may wish to consider their policy wording by requiring a different venue, mandatory arbitration, or other language to avoid an unappealable judgment such as the ruling in this case. Thanks to Monsieur Nicholas Schaefer for his contribution to this post. Please contact Vincent Terrasi with any questions. Previous Next Contact

News Jury-Rigged Saw of Independent Contractor Cuts Down Labor Law 241(6) Claim (NY) March 17, 2016 < Back Share to: Plaintiffs asserting Labor Law § 241(6) claims must show that their injuries were proximately caused by a violation of an Industrial Code rule or regulation. One of the primary defenses available to defendants in such actions is that the worker-plaintiff was the “sole proximate cause” of the alleged injuries. In Scoz v J&Y Elec. & Intercom Co. Inc plaintiff, an independent contractor, received hand injuries as he was cutting flooring for installation. During discovery, plaintiff testified that rather than use a purpose-built table saw, he instead used a jury-rigged device he assembled himself from an upside-down circular saw. Plaintiff deliberately disabled two safety devices to make his contraption useable, and testified that he knew the saw was unsafe as-assembled. However, he claimed that defendants had observed him using the unsafe device and neither stopped him nor provided him with better equipment. The First Department upheld the dismissal of plaintiff’s Labor Law § 241(6) claim, noting that, as an independent contractor, plaintiff was unsupervised and responsible for choosing the best methods and tools to complete the task at hand. The court concluded that Industrial Code §§ 23 1-5(c) and 23-1.12(c) were inapplicable, because the manner in which plaintiff assembled his saw made it impossible to use protective guards or spreaders, and the saw was deliberately assembled without safety devices rather than broken and in need of repair. Plaintiff’s decision to jury-rig a tool that was inappropriate for the job at hand, and to do so in a way that disabled its safety devices, was therefore sole proximate cause of his injuries. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Exercise ... too risky? (NY) October 30, 2013 < Back Share to: Experts say that exercise is good for your health. But those who participate as weekend warriors or regular gym rats know that exercise can also lead to injury. In fact, injury is recognized as a common risk of sport. As such, those of us who choose to exercise in the face of the risk, do so at our own peril. The plaintiff in Ramirez v. Lucille Roberts Health Clubs, Inc. found out that the courts may not be receptive to claims for common injuries associated with exercise. Ramirez claimed that she was injured while attending one of the defendant gym’s step-aerobics classes. The gym moved for summary judgment, arguing that the plaintiff had participated in over a hundred step-aerobics classes prior to the accident and assumed the associated risks. The lower court granted the motion and the Second Department affirmed. The Appellate Division held that someone voluntarily participating in a recreational activity assumes the commonly appreciated risks. Given the plaintiff’s prior experience, the court found that the plaintiff knew the risks involved in exercising (presumably in a spandex leotard). Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Top Court Refuses to Hear Appeal of WCM's Win in $25 Million Art Loss May 8, 2013 < Back Share to: On May 7, 2013, New York’s highest court refused leave to appeal from the decision of the Appellate Division, First Department, unanimously affirming the trial court’s ruling that AXA Art Insurance Corporation was not obligated to indemnify Renaissance Art Investors LLC (RAI) for the loss arising out of the fraud of Larry Salander. Wade Clark Mulcahy persuaded the First Department to uphold the trial court’s decision that AXA’s policy exclusion for dishonest acts of the insured barred recovery. RAI consigned its artwork to the infamous art dealer Larry Salander, a principal of RAI, and the Salander O’Reilly Galleries. Salander and the Gallery ultimately betrayed RAI, stealing millions of dollars in artwork. Salander pleaded guilty to a $120 million fraud scheme, admitting to stealing numerous works of art. In its unanimous decision, the First Department ruled that AXA’s dishonesty exclusion was unambiguous. The exclusion precluded coverage for losses arising from the dishonest acts of an insured, anyone with an interest in the property, or anyone to whom the covered property was entrusted. The Court held that this policy exclusion applied to both Salander and the Gallery, who were entrusted with the artwork. The First Department also ruled, as a matter of law, that insurance coverage only extends to fortuitous losses, even under all-risk policies. The Court ruled that fortuity is a legal question to be resolved by a court. Applying this standard, the Court held that the fraud perpetrated by Salander and the Gallery was not fortuitous. Apart from upholding the so-called dishonesty exclusion in the inland marine policies, the ruling breathes new life into the doctrine of fortuity. Previous Next Contact

News WCM Acting Pro Bono Obtains Permanent Asylum for Persecuted Christian. August 9, 2018 < Back Share to: Thanks to WCM’s pro bono efforts, a 32 year-old woman fleeing severe religious persecution in Pakistan was granted asylum by the Newark Asylum Office. The decision resolves nearly a two-year-long-quest for permanent protection here in the United States. The young woman, “SP,” faced religious persecution for being a Christian and possible death if she continued to practice her faith. This case dates back to 2016, when a pregnant SP fled Pakistan after being beaten and threatened by religious extremists, leaving behind her husband and two young children. In order to protect her own life and the life of her unborn child, SP managed to come to the United States to seek asylum. Attorney Chelsea Rendelman and WCM staff provided pro bono legal services for this case by preparing the asylum application, crafting the affidavit, evaluating and compiling supporting evidence, researching country conditions, obtaining a US work authorization, and preparing for and attending the asylum interview. Our submissions focused on our client’s past persecution as well as her well-founded fear of future persecution. After an interview and hearing and careful consideration of all of the evidence, the Government agreed that SP could not safely return home or relocate within Pakistan. SP was therefore granted indefinite asylum in the United States. We will now focus our efforts on SP’s path to citizenship and securing asylum for SP’s husband and two young children who still live in Pakistan. As lawyers, we feel an obligation to help those in need and we appreciate the opportunity to reunite this deserving family in order to help them move onto the next chapter of their lives. We are thrilled with the outcome, knowing that this woman can now live in the United States in peace and out of harm’s way. For more information about this post, or WCM's pro bono activities, please e-mail <a href="mailto:%20crendelman@wcmlaw.com "target="_blank">Chelsea Rendelman, WCM's Pro Bono Coordinator</a>. Previous Next Contact

News Shrinking Sovereign Immunity in Pennsylvania? August 31, 2010 < Back Share to: In Meyer v. Community College of Beaver County, and its companion case Barr v. Community College of Beaver County, the Pennsylvania Supreme Court severely limited the reach of the Political Subdivision Tort Claims Act’s grant of immunity to governmental entities. In these cases, the plaintiffs all were enrolled students in the Beaver Community College’s police training program, which after some fairly egregious errors was decertified, potentially making the credits earned by the students meaningless. Plaintiffs brought suit by alleging contracts and warranty theories, as well as violations of the Unfair Trade Practices and Consumer Protection Law. Beaver Community College attempted to dismiss the claims on the ground that it was immune from such claims under the Political Subdivision Tort Claims Act. However, the Pennsylvania Supreme Court, did not buy the argument. It wrote: “Upon our review, we agree with Appellants that the approach taken by the Commonwealth Court is not sustainable. As Appellants ably explain, the language of the statute conferring governmental immunity, and of that implementing the exceptions, pertains to conduct causing "injury to a person or property." 42 Pa.C.S. §§ 8541, 8542. The Commonwealth Court previously has recognized that these terms reflect the main policy consideration historically underlying tort law, whereas, the central focus of contract law is the protection of bargained-for expectations.” The decision invariably provides another avenue for plaintiffs to implead governmental entities that otherwise may have been immune from suit under the previous, more liberal interpretation of governmental immunity. In turn, non-governmental co-defendants will benefit tactically from the existence of an additional defendant. As such, this limitation on the governmental immunity may bring about new strains of litigation against government entities. http://scholar.google.com/scholar_case?case=13801878413814481655&hl=en&as_sdt=2&as_vis=1&oi=scholarr Special thanks to Alison Weintraub for her contributions to this post. Please contact Bob Cosgrove at rcosgrove@wcmlaw.com if you have any questions. Previous Next Contact

News WHO’S THE BOSS?: How The Workers Compensation Law Protects The Employer Who ‘Controls and Directs’ An Employee August 2, 2024 < Back Share to: Generally, in an action to recover damages for personal injuries, if an employee is entitled to receive workers’ compensation benefits, then that employee cannot sue their employer for any injuries sustained, as provided in the Workers Compensation Law. But what happens when an employee of a staffing or temp agency is temporarily placed with a different employer and suffers an injury entitling them to workers compensation benefits? Who would be obligated to provide workers’ compensation benefits in such circumstances, and who would consequently be generally barred from suits brought by the employee? On July 24, 2024, in Miolan v. Milmar Food Group, LLC, et al, 2024 N.Y. Slip Op. 03886, the Appellate Division, Second Department, answered those exact questions. In Miolan , Alquidania Miolan, an employee of a staffing agency, had been temporarily placed in the employ of a frozen food manufacturing facility operated by the Defendants, Milmar Food Group, LLC. Miolan slipped and fell on water and sustained injuries and then filed suit against Milmar. Defendant Milmar moved for summary judgment, citing the exclusivity provisions of the Workers Compensation Law barring such a suit. The lower Supreme Court granted Milmar’s motion, and Miolan then appealed. In reviewing the case, the Second Department noted that, as often occurs with staffing and temp agencies, an employee can be deemed to have more than one employer; they can have a general employer and a special employer . In the latter circumstance, an employee of a special employer is considered a special employee when they have been temporarily transferred to fulfill the services of or for another employer, regardless of the duration of said temporary employment. Additionally, when determining whether a general employer or a special employer is obligated to provide workers’ compensation benefits, and therefore be barred against suits from the employer, the Second Department determined that the answer turns on which employer “controls and directs the manner, details and ultimate result of the employee’s work.” In Miolan , the Court held that Defendant Milmar controlled and directed the manner, details and ultimate result of the Plaintiff’s work, not the staffing agency. Accordingly summary judgment in favor of Milmar was affirmed. An important point of distinction to be made for any employer to keep in mind when utilizing staffing or temp agency services! Thanks to William Hoffman for his contribution to this article. Miolan v. Milmar Food Group, LLC .pdf Download PDF • 189KB Previous Next Contact

News Hearsay Problems in NY Coverage Cases. November 6, 2007 < Back Share to: The Appellate Division of New York's Second Department has just issued a ruling that could present issues in proving simple coverage cases. The Court held that an insured's statement to the insurer's investigator, as well as the investigator's report, were both inadmissible hearsay. It remains unclear why the Court focused its decision on the investigator's report, rather than the testimony regarding the insured's apparent admission, but we hope this misguided decision is taken to the Court of Appeals. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2007/D16022.pdf Previous Next Contact