News Watch Where You Step: 2nd Department Affirms Sole Proximate Cause Defense (NY) September 22, 2017 < Back Share to: New York Labor Law §§ 240(1), 241(6) are notoriously plaintiff-friendly, and liability defenses are often limited at trial. Defenses usually center on the sole proximate cause argument, which is often difficult to prove. However, in Melendez v 778 Park Ave. Bldg. Corp., 2017 Slip Op 06175, the Second Department affirmed the dismissal based on the sole proximate cause defense as well as other causation based arguments. Plaintiff and coworkers were erecting a scaffold in the yard area of the defendant's building to make a platform even with the sidewalk. Plaintiff was building the platform portion of the scaffold by placing wooden planks on top of steel I-beams when he stepped onto an unsecured wooden plank, causing him to fall. Plaintiff alleged violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence against the owner and general contractor. The Supreme Court granted the portions of defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6) cause of action. The plaintiff appealed. The Appellate Division affirmed the Supreme Court’s judgment. The Court opined that in order to succeed on a cause of action alleged violation of Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that violation was a proximate cause of the accident. In this case, the plaintiff was found to be sole proximate cause as he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam rather than standing upon the secured planking that was available to him and which he had used in the time leading up to the accident. The Appellate Division affirmed the dismissal of the Labor Law § 241(6) cause of action because the alleged violations of the Industrial Code provisions were not a proximate cause of the plaintiff's injuries, or conversely, did not apply to the facts of this case. The Court also affirmed the dismissals of the Labor Law § 200 and common-law negligence actions as against the general contractor, determining that the plaintiff's injuries did not arise from a dangerous condition on the premises, but from the manner in which the work was being performed. On that basis, a defendant must have the authority to exercise supervision and control over the work to be liable. Here, the defendant did not have the authority to control, direct or supervise the method or manner in which the work was performed. The sole proximate cause defense is case specific and often difficult to prove. However, this case provides an example of the Appellate Division rendering a decision, taking the events leading up to the accident into fair account. The Court’s common sense analysis resulted in a properly affirmed dismissal. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Prevents Deposition of Counsel in Coverage Dispute (PA) January 29, 2016 < Back Share to: In JCT Leasing LLC. V. Travelers Casualty Insurance Company, Plaintiffs sued their insurer, seeking damages for breach of contract and bad faith arising out of a fire claim. Plaintiffs sought to depose defendant’s coverage counsel, and the court needed to evaluate whether attorney-client privilege barred his deposition. After plaintiffs submitted a claim to Travelers for fire at their property, Travelers retained Ernest Koshineg, Esq. to advise them on whether plaintiffs’ claim was covered. Upon advice from counsel, Travelers notified plaintiffs that it was rescinding their policy, as the policy was issued based on the representation that a sprinkler system was in the warehouse, when in fact there was not. Plaintiffs notified defendant that they intended to depose Koshineg and required him to bring materials he prepared while assisting in the claims investigation and policy rescission process. Defendant moved for a protective order, which was ultimately granted. Plaintiffs argued that Koshineg worked as part of the defendant’s claims adjusting team and should be considered to be an investigator for the insurer because he became involved so early on in the matter. But the Court found that Mr. Koshineg played a traditional lawyer’s role of providing legal advice to a client, and did not serve as a member of defendant’s claims investigation team and thus the attorney–client privilege applied. Plaintiffs further argued that even if privilege existed, it had been waived because the Vice President, who advised the plaintiffs of their policy rescission testified that in drafting the rescission letter, he relied on the advice of counsel. But the Court found that defendant had not waived the privilege because the defendants did not assert "reliance on course" as an affirmative defense to the lawsuit. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Third Circuit Rejects Plaintiff’s Zone of Danger Theory In Claim For Emotional Distress (PA) August 25, 2023 < Back Share to: In recent case, Russell v. Educational Commission for Foreign Medical Graduates, the United States Third Circuit Court of Appeals held that under Pennsylvania law, “[t]o uphold a claim for [negligent infliction of emotional distress (“NIED”)] under a physical impact theory, a plaintiff must show that he or she suffered ‘immediate and substantial physical harm,’ and [reaffirmed prior Pennsylvania Supreme Court precedent] that NIED provides a remedy for ‘trauma derived from a contemporaneous physical impact.”’ (internal citations omitted). The Court also held that to uphold a claim for NIED under a “zone of danger theory” a plaintiff must (1) have been “in personal danger of physical impact because of the direction of a negligent force against him or her and (2) actually feared the physical impact” at the time when the physical impact was occurring or at risk of occurring. Plaintiffs here were “a putative class of patients who received obstetric medical treatment from a person who turned out to be a fraud, and eventually “pleaded guilty to ‘misuse of a social security account number to fraudulently obtain a Maryland medical license.’” As part of the lawsuit, Plaintiffs asserted a claim for NIED, alleging that the realization that their supposed obstetrician was a fraud, coupled with their memories of their past physical treatment with this fraudster, caused emotional distress. Plaintiffs appealed a dismissal by summary judgment and on appeal, the Third Court began its analysis with the settled premise, that “[t]raditionally, to prevail on a claim of NIED under Pennsylvania law, a plaintiff had to show that there was a “physical impact.” The Court recognized the three exceptions to the physical impact requirement: “(1) ‘the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury;’ (2) the plaintiff observed a tortious physical injury to a close relative; or (3) the defendant had a contractual or fiduciary duty toward the plaintiff. Of these exceptions, only “zone of danger” was argued by Plaintiffs and addressed in detail by the Court. The Court held that the “zone of danger” is only applicable when two elements are satisfied: where a would-be Plaintiff “(1) was in personal danger of physical impact because of the direction of a negligent force against him or her and (2) actually feared the physical impact.” From here, the Court concluded that Plaintiffs could not succeed under a zone of danger theory because at the moment when they were in personal danger of the negligent physical impact, Plaintiffs had not yet learned of the fraud being perpetuated, and thus had no reason to be in fear of that physical impact. Accordingly, the Court affirmed the District Court’s ruling granting summary judgment to the Commission. Thanks to Stephen Kerstein for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News “Special Errand” For Employer Puts Accident On Trip Home From Work Under Workers’ Compensation November 24, 2011 < Back Share to: In Matter of Borgeat v. C & A Bakery, the New York Appellate Division, Third Department upheld a finding that injuries caused by an accident involving an employee traveling home was compensable under Workers’ Compensation because the employee was performing a “special errand” for the employer. The employee, who died in the accident, worked at a bakery. He was often asked to deliver cakes to a restaurant on his way home from work. After the accident, which took place only two blocks from the restaurant in question, a cake box was found in the car. This was sufficient to support a finding that the decedent’s death arose out of and in the course of his employment. For more information on this post, please contact David Tavella at dtavella@wcmlaw.com http://decisions.courts.state.ny.us/ad3/Decisions/2011/511442.pdf Previous Next Contact

News Jury Trial Suspension Due to COVID-19 November 20, 2020 < Back Share to: Courts in the tri-state area have recently announced the suspension of jury trials due to the increase of COVID-19 cases. Philadelphia County and other Pennsylvania counties began resuming jury trials in September. On November 17, 2020, the Court of Common Pleas of Philadelphia County suspended jury trials until January 2021. https://www.courts.phila.gov/juryservice/; https://www.courts.phila.gov/covid-19/t. Additional Pennsylvania counties will likely implement suspensions of jury trials. Bucks County announced that no criminal or civil jury trials with a jury of 12 people will be heard prior to January 1, 2021, and no civil jury trials will be heard from November 30, 2020 until January 1, 2021. http://www.buckscounty.org/docs/default-source/coronavirus/emergencyorder22.pdf?sfvrsn=5a730eef_0 In New Jersey, Courts began resuming jury trials in September, and approximately one dozen jury trials were held. On November 16, 2020 the New Jersey Judiciary announced that all jury trials are suspended, but the current ongoing jury trials are permitted to continue. https://njcourts.gov/pressrel/2020/pr111620d.pdf?c=WX7 New York resumed jury trials in October, but the revised pandemic procedures of trial courts announced on November 13, 2020 noted that no prospective civil or criminal jury trials will go forward, and any pending jury trials will continue to conclusion.http://www.nycourts.gov/whatsnew/pdf/JT_Memo_Nov13-001.pdf. All jurors in New York were asked not to appear as of November 16, 2020. http://www.nycourts.gov/whatsnew/pdf/JT_Memo_Nov13-001.pdf. It is probable that many states will suspend jury trials due to the rising cases of coronavirus, and the Courts concerns for public health. Special thanks to Emily Finnegan for her contribution to this post. For more information, please contact Thomas Bracken.       Previous Next Contact

News Appellate Division Discusses Jury Instructions on increased Susceptibility and Failure to Mitigate Damages August 5, 2024 < Back Share to: In Anthony Rivera v. Elizabeth G. Kolsky, a recent decision from the Second Department helps to clear up the use of the increased susceptibility instruction given by the Supreme Court to the jury. The case also discussed the standard to be met to secure a jury instruction on failure to mitigate damages. Anthony Rivera was 30 years old in 2010, when he sustained personal injuries as a result of a motor vehicle accident. The injuries included a fracture of his hip, an injury to his knee and a preexisting back injury that was aggravated as a result of the accident. The Court granted the plaintiff’s motion for summary judgment on the issue of liability and the case proceeded to trial on damages. Over the defendant’s objection the Supreme Court granted the plaintiff’s request for an increased susceptibility jury instruction and instructed the jury as follows, “The fact that the plaintiff…may have a physical condition that makes him more susceptible to injury than the normal healthy person, does not relive the defendant of liability for all the injuries sustained as a result of her negligence. Defendant is liable even though those injuries are greater than those that would have been sustained by a normal, healthy person under the same circumstances.” The jury found in favor of plaintiff and award damages of $1,865,305.43, and the defendants appealed. The defendants argued that the jury instruction prejudiced the jury. The Court found that the increased susceptibility instruction did not refer to any condition specifically and was similar to that of the instruction for aggravation of a preexisting injury. On the issue of aggravation of the preexisting back condition, the jury found in favor of the defendants. Under these circumstances, the jury instructions did not affect the verdict. “A party seeking to avail itself of the affirmative defense of failure to mitigate damages must establish that the injured party failed to make diligent efforts to mitigate damages, and the extent to which such efforts would have diminished those damages.” In this matter, the defendants failed to meet that burden, and the Supreme Court therefore declined to instruct the jury on that issue. This case is relevant to our practice because it clears up the susceptibility instruction and the standard that we must meet to prove that plaintiff did not make diligent efforts to mitigate those damages. Rivera v. Kolsky .pdf Download PDF • 76KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Senior Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News Participation is Not Always Direction or Control under NY's Labor Law February 10, 2009 < Back Share to: Owners of one and two-family homes are typically exempt from Labor Law §240 and 241, except in situations where they “direct or control” the work. In Snyder v. Gnall, the Third Department in New York recently held that despite clear involvement by the owner in the construction project, his actions did not rise to the level of direction or control. The owner was identified on the building permit as the general contractor; he personally arranged for building inspections; he hired all contractors and sub-contractors; and he ordered and paid for certain building materials. However, because all of these activities took place pursuant to directions or recommendations set forth in plaintiff’s comprehensive proposal, the Court held the owner’s participation was not as significant to support the conclusion that he directed or controlled the work. The claims were thus dismissed. Snyder v. Gnall Previous Next Contact

News Unlimited WC Coverage Prevents Excess Coverage from Being Triggered (NY) January 11, 2018 < Back Share to: In Vincent & Sons Construction v. Century Surety Insurance, et al, the Second Department recently discussed the unlimited workers compensation coverage interacts with excess policies. This declaratory judgment action was brought by Arthur Vincent & Sons Construction seeking defense and indemnification from defendants Century Surety Insurance Company and Admiral Insurance Company in an underlying action wrongful death action, which arose during a project in which Fordham University hired Vincent Construction to install a new roof on one of its research buildings. As part of their contract, Vincent Construction agreed to indemnify Fordham against any claims arising out of Vincent Construction’s negligence and to carry comprehensive commercial general liability insurance naming Fordham as an additional insured. During the course of the project, one of Vincent Construction’s employees had a fatal accident, and his estate commenced a wrongful death action against Fordham. In turn, Fordham commenced a third-party action against Vincent Construction seeking contribution, common-law indemnification, and contractual indemnification. At the time of the accident, Vincent Construction was covered by three policies: (1) a worker’s compensation and employer’s liability policy issued by Commerce and Industry Insurance Company (“Commerce”) that covered common-law indemnification claims and excluded coverage for contractual indemnification claims, (2) a CGL policy issued by Century that covered contractual indemnification claims, and (3) an excess policy issued by Admiral that also covered contractual indemnification claims. After learning of the accident, only Commerce acknowledged coverage and provided Vincent Construction with defense, so Vincent Construction commenced this action to obtain a judgment declaring that Admiral was obligated to defend and indemnify it, and to defend and indemnify Fordham as an additional insured in the underlying wrongful death action. Admiral moved for summary judgment, arguing that it was not obligated to defend or indemnify Vincent Construction because Vincent Construction’s primary coverage under the Commerce policy was unlimited, so excess coverage could never be triggered. Vincent Construction argued that because the Commerce policy excluded claims for contractual indemnification, the Admiral policy provided it with excess coverage for those claims. The Supreme Court agreed with Vincent Construction, and declared that Admiral must indemnify Vincent Construction in the underlying action with excess, noncontributory coverage. Admiral appealed. On appeal, the Second Department noted that the Admiral excess policy stated that it provided coverage in the amount of the “ultimate net loss” in excess of the “underlying insurance limit.” The policy defined “underlying insurance limit” as the sum of the amounts of “other insurance” and “underlying insurance.” At issue for the Second Department was the meaning of “underlying insurance,” which the Admiral policy defined as “coverage(s) afforded under insurance policies, for the limits shown, as designated in the schedule of underlying insurance.” The schedule of “underlying insurance” listed Century’s CGL policy, but it did not list Commerce Workers’ Compensation policy. Despite this, the court explained that the coverage afforded under the Commerce policy was included in the “underlying insurance limit,” because it was considered “other insurance.” Here, the Commerce policy contained a New York Limit of Liability Endorsement providing Vincent Construction with unlimited coverage in cases where bodily injury to an employee arises in the course of employment. Because there was no question that the facts of the wrongful death action fell within the meaning of the endorsement, Admiral was correct that Vincent Construction’s primary policy provided unlimited coverage. Accordingly, the Second Department reversed the trial court, and held that by its “clear and unambiguous terms” the Admiral excess policy was not could be triggered for the wrongful death suit, regardless of the exclusion for contractual claims. Admiral's policy language governed, and the WC carrier is responsible for the entire underlying judgment, whatever that may be. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Plaintiff's Comparative Negligence Does Not Trigger an Employer's Contractual Indemnification Obligation (NY) September 7, 2012 < Back Share to: In a bid to trigger an employer’s contractual indemnity provision, some defendants are arguing that the plaintiff’s comparative negligence constitutes the employer’s negligence. While creative, this argument, as discussed by the Second Department in Arrendal v. Trizechahan, is flawed and does not comport with the intent of indemnity provisions. In Arrendal, the plaintiff, a Daisy Subway employee, was injured while placing garbage into a trash compactor. He commenced suit against Trizechahan, the owner of the building, who in turn filed a third party claim against Subway Real Estate Group for contractual indemnification. Subway Real Estate Group then sued Daisy Subway, the plaintiff’s employer. The indemnity provision in the lease provided that Subway Real Estate Group would indemnify Trizechahn from losses caused by an agent or licensee of Subway Real Estate, which plaintiff was. It also provided that Subway Real Estate would indemnify Trizechahn from losses caused by employees of Daisy Subway, which plaintiff was. Trizechahn argued that plaintiff’s comparative negligence constituted negligence and, thus, triggered Subway’s indemnity obligations. The Supreme Court bought this argument, but the Second Department did not. It held that the term "negligence," as employed by the lease does not encompass the comparative negligence of the injured plaintiff. Rather, the indemnification provision would only be triggered in the event of a finding of negligence by the indemnitor’s agent or employee for a tort committed against the plaintiff. Thanks to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . 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 Court Examines Scope of Designated Premises (NY) April 10, 2013 < Back Share to: The standard Commercial General Liability policy provides liability coverage for the “Designated Premises” set forth in the policy’s Declaration Page. Those premises are customarily identified in the application for insurance submitted by the insured as part of the underwriting process. Many CGL policies expressly limit coverage to liability arising out of the Designated Premises. What happens when the insured contracts for a major expansion of those designated premises and a construction worker is injured while erecting the new, expanded space? More to the point, is that new space considered part of the Designated Premises covered by the owner’s CGL policy? There is no liability coverage for the owner according to the Appellate Division, First Department in Seneca Insurance v. Cimran Co., Inc. In Cimran, the owner submitted an application for insurance describing the premises as a one story building occupied by a billiard hall and health spa. After the policy became effective, the owner contracted to add three additional stories to the property and, according the plaintiff’s bill of particulars, a worker was injured on the fourth place at the construction site. Reaffirming “an ancient principle of insurance law,” the First Department, in the closely decided 3-2 decision, held that the fourth floor was not part of the insured premises and therefore was not covered by the Seneca policy. The insurer reasonably relied on the description of the premises set forth in the application, so the court reasoned that there could be no real dispute or confusion that coverage was limited to the one story building and did not include the three additional stories under construction. Given the two dissents, we expect the Court of Appeals, New York’s highest court, to review the Cimran decision in the future. Of note, it is unclear from the Appellate Division decision whether the Seneca policy expressly limited coverage to the premises designated in the policy’s declaration page. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News This (Watered Down) Bud's For You? (NJ) April 5, 2013 < Back Share to: First, the self-proclaimed King of Beers suffered the indignity of being purchased by a Belgian-Brazilain brewing company, InBev, in 2008. It now finds itself the target of a series of lawsuits filed throughout the country alleging that Anheuser-Busch cheated consumers by misrepresenting the alcohol content of its products. One such suit was filed in New Jersey by plaintiff Brian Wilson. The complaint highlights the sophisticated equipment used by the brewing company that can precisely measure the alcohol content, and claims that the company saves money by watering down the beer during the fermentation process. Because it is alleged that the alcohol content is lower than the amount represented on the bottle labels, the claim is that this practice violates the New Jersey Consumer Fraud Act, as well as other statutes. Frankly, with the incredible variety of specialty craft beers available in the marketplace, Bud drinkers do not strike me as discerning consumers. I think it is also doubtful that Bud buyers made their purchases aware of -- and based on -- the claimed alcohol content on the label, and that a potential 5% difference would have impacted their decision. But it will be interesting to see how this develops. If you would like further information, please write to Mike Bono. Previous Next Contact