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News Defective Sperm Cannot Support a Product Liability Case in 3rd Circuit. April 8, 2010 < Back Share to: The Third Circuit in Donovan v. Idant Laboratories, has dismissed a products liability suit against a sperm bank. In the suit, plaintiff alleged that the sperm sold by the bank contained genetic defects. Specifically, the sperm was a carrier of Fragile X, a genetic mutation known to cause a group of maladies that include mental retardation and behavioral disorders. The daughter resulting from the sperm donation was diagnosed with the Fragile X defect. The Court found that the claim was essentially a claim for “wrongful life” which is not cognizable under New York law. New York law applied to the case even though the lawsuit itself was filed in federal court in Philadelphia. The Third Circuit wrote that plaintiff’s claims demand “a comparison between the Hobson's choice of life in an impaired state and nonexistence . . . [a] comparison the law is not equipped to make.” The Court concluded: “Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians.” Special thanks to Mendel Simon for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.ca3.uscourts.gov/opinarch/093460np.pdf http://www.law.com/jsp/article.jsp?id=1202447538837&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20100406&kw=3rd%20Circuit%3A%20Defective%20Sperm%20Can't%20Be%20Basis%20for%20Products%20Liability%20Suit Previous Next Contact

News Can't Use Facebook To Serve Process June 13, 2012 < Back Share to: Last week we posted that NY state courts are permitting discovery of Facebook accounts in certain contexts. This week, a federal court judge in the Southern District of New York rejected a request to use Facebook as an alternative means of serving process on a hard to find third-party defendant. In Fortunato v. Chase Bank, Chase wanted to use Facebook to locate and serve the third-party defendant who had a history of providing inaccurate addresses. Chase argued that this history prevented its investigators from locating the sought after third-party defendant through normal channels. Although the judge agreed that service by normal means was impractical, he would not allow Chase to use Facebook to locate and serve the third-party defendant stating that Chase had not set forth any facts that would give the court some degree of certainty that the Facebook profile their investigator found was in fact maintained by the third-party defendant. The court, instead, allowed service by publication in four local newspapers to cover areas where the third-party defendant had listed addresses. If you have any questions or comments about this post, please email Nicole at nbrown@wcmlaw.com . Fortunato v. Chase Bank USA Previous Next Contact

News 38 Allegations But A Bad Faith Claim Ain’t One (PA) September 24, 2021 < Back Share to: In Brown v. Liberty Mut. Ins. Co., the Eastern U.S District Court for Pennsylvania granted the defendant’s motion to dismiss against a plaintiff’s bad faith claim citing statutory insurance violations against the defendant. The plaintiff was involved in a motor vehicle accident, and sought benefits form her insurer for uninsured motorist benefits. As a result, the plaintiff brought a bad faith claim against the insurer in the initial complaint. The court dismissed the initial bad faith claim made under 42 Pa C.S. § 8371, but allowed the plaintiff to amend and replead the complaint. After amendment, the court still ruled in favor of the defendant. While plaintiff alleged “dilatory” and “abusive claim handling” in the investigation and negotiation of her UIM claim, the court concluded that the amended complaint’s 38 ways in which Liberty Mutual may have acted in the bad faith, they were all merely conclusions. The Court reminded the policyholder that merely because you have a particular policy limit, that is the “theoretical maximum that an insured could recover.” It is not the de facto value of a claim. Thus Liberty Mutual’s motion to dismiss the bad faith claim with prejudice was granted. In order to make a bad faith claim, the policyholder must show that there was no reasonable basis to deny a benefit, and demonstrate evidence that the insurer knew or recklessly disregarded its knowledge of a reasonable basis. A mere disagreement over a settlement claim does not reach this level. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Bad Construction or New Damage? -- A Question For The Art World. October 26, 2010 < Back Share to: Interest in post war and contemporary art is beginning to return to pre-Lehman levels -- http://www.dailyfinance.com/story/confidence-colors-contemporary-art-market-with-record-prices-se/19476374/ This good development should raise some eyebrows in the art insurance world. Why? Because post war and contemporary art suffers from two problems: (a) it is often created with novel techniques and from composite materials – techniques and materials that can be difficult to replicate; and (b) because of (a), post war and contemporary art often degrades or deteriorates at a much faster rate than the old masters. Restorations are thus becoming more common and necessary than one would expect with pieces of such recent provenance – http://www.nytimes.com/2010/10/26/science/26whitney.html?_r=1&ref=science This fact should be remembered the next time a shipping or other loss comes in. Insurers must ask themselves – is it new damage resulting from an occurrence, or rather simply part of the inherent and rapid degradation process inherent to post war and contemporary art? If you have any questions about this post or WCM’s fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

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

News In NJ, A Convicted Drunk Can Sue The Tavern. April 30, 2010 < Back Share to: In the case of Voss v. Tranquilino, (App. Div. 2010), the plaintiff, who had a .196 BAC, was injured when his motorcycle collided with a vehicle operated by defendant Tranquilino. Although the plaintiff pleaded guilty to drunk driving, this did not stop him from seeking to finding someone else to blame for his injuries. He blamed Tranquilino and Tiffany's Restaurant which he claimed negligently served him alcohol and thus was a proximate cause of the subsequent accident. Tiffany's and Tranquilino moved to dismiss the complaint relying upon N.J.S.A. 39:6A-4.5(b) which provides that a driver of a motor vehicle who is convicted of or pleads guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), in connection with an accident “shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.” Voss did not oppose Tranquilino's dismissal motion, but he did oppose Tiffany's. Plaintiff argued that the Dram Shop Act, N.J.S.A. 2A:22A-4, which provides a cause of action if the bar/restaurant negligently serves alcohol to a visibly intoxicated person trumped N.J.S.A. 39:6A-4.5(b). In a case of first impression, the Appellate Division agreed, held that N.J.S.A. 39:6A-4.5(b) only applies to automobile claims, and denied Tiffany's motion. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/Drunken Drivers.pdf http://pdf.wcmlaw.com/pdf/Voss.pdf Previous Next Contact

News A Decade Later, New Evidence Vacates SJ Decision September 2, 2021 < Back Share to: In Abrams v. Berelson, venued in Supreme Court, Richmond County, the court granted the plaintiff's motion to renew and set aside an order granting the defendant summary judgment that was granted 10 years earlier. The case stemmed from an accidental shooting that occurred in the home owned by the defendant on November 3, 1997. The plaintiff and a co-worker, Michael Torres, were hired to clean carpets and perform generally cleaning out of the home following the death of the defendant's mother. During the course of the cleaning, Torres found a gun in a bedroom and accidentally shot his co-worker, the plaintiff. In a 2000 decision, the court granted the defendant's summary judgment motion holding that the plaintiff could not establish actual or constructive notice of the injury-producing condition. Specifically, the plaintiff could offer no proof to establish where the rifle was found, whether it was visible and apparent or how long it was present in the house prior to the shooting. In granting the motion, the court stated that the only person who could testify as to the location of the rifle was Torres and at that time, he had given no testimony and could not be located by either party. The plaintiffs, after a diligent search, located Mr. Torres and submitted an affidavit from him in which he admitted that he had made himself hard to find after the police determined the shooting was an accident. He stated the he lived with family members over the years and instructed them to advise others, especially the plaintiff's family, that they did not know how to contact him. Based on this affidavit, Torres' willingness to appear for a non-party deposition and the discovery that the police had not destroyed the rifle in question, the court set aside the summary judgment order and ordered an expedited discovery schedule. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51515.htm Previous Next Contact

News New York's Highest Court Finds Owners and Contractors Strictly Liable for Damage to Adjoining Buildings March 2, 2012 < Back Share to: The Court of Appeals recently issued a decision in Yemen Corp. v. 281 Broadway Holdings addressing the Administrative Code of the City of New York section 27-1031(b). Importantly, the Court determined that the statute imposes absolute liability on owners and contractors whose excavation work causes damage to an adjoining property. Yemen is a property damage case that involved allegations that the defendant’s excavation (18 feet below curb level) shifted the plaintiff’s building out of plumb due to undermining of the existing footings and a loss of soil. Administrative Code 27-1031(b) provides: When an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation as exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property. In effect, this statute finds the duty to protect adjacent buildings during excavation to be absolute and unqualified. Accordingly, in New York City, those who undertake excavation work rather than those whose interests and neighboring land is harmed by it should bear the cost if damage occurs. The fact that a building may be in poor condition will not raise an issue of fact as to causation under the statute, although it is still relevant with respect to the measure of damages. Thanks to Bill Kirrane for his contribution to this post. For more information about this post, please contact Nicole Brown at nbrown@wcmlaw.com . http://www.nycourts.gov/ctapps/Decisions/2012/Feb12/1opn12.pdf Previous Next Contact

News NY Dealer Pleads Guilty In Fake Art Scheme September 20, 2013 < Back Share to: We previously posted about the indictment of Glafira Rosales, the art dealer indicted by the US Attorney's office in New York for her participation in an expansive scheme to sell fake art works to galleries, including the Knoedler Gallery. Rosales has now plead guilty to a number of significant felonies, including conspiracy to sell the fake art, money laundering, and tax crimes. Rosales claimed that she obtained the art -- purported to be painted by Modernist masters such as Pollack and Rothko -- from two anonymous collectors from Switzerland and Spain. Instead, all of the fake works were produced by a single painter who worked out of his garage in Woodhaven, Queens. The paintings were then treated so that they would have the false patina of age. According to the US Attorney's office, Rosales was paid approximately $33.2 million for the fake art. She agreed to forfeit that amount as part of her guilty plea, but it remains to be seen how much of that amount is actually recoverable. We were interested to see how the US Attorney's office was going to prove that the works were indeed fake, but that point is now moot. Indeed, during her plea Rosales admitted that the paintings were "fakes created by an individual in Queens." No doubt her statement will be used by the plaintiffs in the civil lawsuits filed against Rosales and the galleries, and the question of interest to now follow is whether the galleries are found liable. Please write to Mike Bono if you would like further information. Previous Next Contact

News Liability Of An Out of Possession Landlord (NY) May 19, 2023 < Back Share to: Where a landlord leases a premises and does not retain control over it during the duration of the leased term, a landlord cannot face liability. The prevailing case law holds that an out of possession landlord is not liable for injuries on a leased premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or conduct, to perform the relevant maintenance and repairs. This situation was addressed in the recent decision of Washington v. Jay St. Dev. Corp., 2023 NY Slip Op 01818 (2d Dep’t April 5, 2023), plaintiff alleged she was injured when she tripped over a curled-up edge of a runner mat in the lobby of a building, causing her to slip and fall on the wet marble floor. At the time of the accident, the lower floors of the premises, including the lobby, were leased by the City of New York and the upper floors were leased by commercial tenants. Employees of the City of New York placed and maintained the runner mat on the lobby floor. The landlord, Jay Street Development Corp., moved for summary judgment on the grounds that it was not a proper party to be sued because it was an out of possession landlord with no duty to maintain the lobby. The court noted that because plaintiff alleged common law negligence claims, rather than a violation of a statute, the defendant established its entitlement to summary judgment because it did not have a duty to maintain the premises by contract or conduct. The court further noted that the landlord could transfer its duty to maintain the premises in a reasonably safe condition to the City pursuant to the lease, even though the lobby was in public use, and there was no evidence that the landlord knew or should have known of the dangerous condition at the time the lease was entered into. Failing to raise an issue of fact, the Second Department upheld the lower court’s decision to dismiss plaintiff’s amended complaint as asserted against the landlord. This case serves as a reminder of the factors considered in determining whether liability can be imposed upon an out-of-possession landlord. Thank you to Gabriella Scarmato for her contribution to this article. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact

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

News Expert Affidavit Trumps Speculation Defense June 21, 2012 < Back Share to: In Rodriguez v. Leggett Holdings, LLC, the First Department reinstated plaintiff’s complaint despite the fact that plaintiff was unable to identify the cause of his fall down a set of stairs. Although defendants established their prima facie entitlement to summary judgment since plaintiff’s deposition testimony revealed that he was unable to identify the precise cause of his fall, plaintiff’s expert engineering affidavit, which attributed various defects and building code violations (without specifically referencing the code sections or precise measurements taken) as the cause of the accident, was sufficient to raise a triable issue of fact as to whether the alleged defective conditions caused the fall. Chiseling away at the proposition that a defendant is entitled to summary judgment where a plaintiff’s claims are based on speculation and conjecture, the First Department held that in this instance, summary judgment was not appropriate because plaintiff was able to identify the general site of his fall, and his expert was then able to identify defective conditions on the stairway. Plaintiffs, who now have the ability to submit expert affidavits in order to defeat motions that may have once been favorably decided for the defense, will undoubtedly rely upon this case in the First Department. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04922.htm Previous Next Contact