Alexander Rabhan Senior Associate New York arabhan@wcmlaw.com +1 212 267 1900 Professional Experience Alexander (Alex) Rabhan litigates general liability actions, including personal injury and property damage cases, premises liability and construction defect claims, and contract disputes. His work includes all aspects of these cases from inception to resolution involving various forms of dispute resolution and litigation, including drafting pleadings and motions, attending depositions, performing legal research, attending hearings and mediations, and preparing for trial. While at law school, Alex joined the Unemployment Action Center that provided representation to terminated claimants seeking unemployment benefits. He also interned with the New York Legal Assistance Group’s Pro Se Clinic. Prior to law school, Alex was a fundraiser for major events and donor cultivation at an international nonprofit based in Washington, DC. Professional Activities Member, New York State Bar Association News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education Benjamin N. Cardozo School of Law | Doctor of Law University of Miami | Bachelor of Arts Bar Admissions New York

News 2nd Circuit Upholds Insurer’s $70 Million Coverage Win June 2, 2022 < Back Share to: In Lantheus Medical Imaging Inc., v. Zurich American Insurance Company, the Second Circuit Court of Appeals affirmed a district court order upholding an insurer’s disclaimer in a $70 million loss of business income action. Although the basis of the suit was highly technical, the key issue was whether the claimed loss was caused by an excluded peril in an all-risk insurance policy. Lantheus Medical Imaging is a pharmaceutical company with a focus on manufacturing and selling medical imaging products. One such product is a generator sold to hospitals that produces a medical isotope required for many imaging procedures. In order to manufacture such a generator, Lantheus purchases radioactive molybdenum-99 from a Canadian nuclear reactor (National Research Universal reactor). In May 2009, a power outage caused the reactor to go off-line. When attempts were made to turn the reactor back on, it malfunctioned. Reactor workers discovered corrosion on the inside of the reactor, and it took 15 months to correct the issue. During this time Lantheus was unable to properly manufacture its generator because it could not obtain molybdenum-99. Zurich issued an all-risk property insurance policy to Lantheus that covered contingent business income loss with a sub-limit of $70 million. Lantheus claimed it sustained over $70 million in lost business income and replacement costs due to the reactor shutdown. However, Zurich denied Lantheus’ claim because the all-risk policy excluded any damages resulting from deterioration, depletion, rust, [or] corrosion. Zurich disclaimed coverage on this exclusion because its investigation revealed the shutdown was due, at least in part, to corrosion of materials inside the reactor. Lantheus then commenced a DJ for a declaration that Zurich is required to provide coverage under the policy. As is usually the case in coverage disputes, the issue boiled down to the interpretation of one word: corrosion. Lantheus claimed the shutdown was due to a lightning strike causing a sudden pressure surge in the reactor. It asked the court to adopt a definition of corrosion to mean gradual corrosive damage that takes place inevitably over the useful life of property. According to Lantheus, the shutdown would not have occurred if not for the sudden (i.e., non-corrosive) effect of lightning. Therefore, Lantheus claimed, its business losses did not result from gradual corrosion (an excluded peril), but rather a covered peril such as lightning. Both the district court and the Second Circuit rejected this argument. The Court of Appeals stated, “there is no question of material fact that the NRU Reactor shutdown falls into [the corrosion exclusion], even accepting Lantheus’s proposed version of events.” The Second Circuit came to this conclusion because the Zurich policy contained an anti-concurrent clause. Specifically, as long as corrosion—or any other excluded peril for that matter—contributes in any way to the claimed damages, whether concurrently or in any other sequence, there is no coverage. The Second Circuit agreed with the district court that even if the predominant cause of the shutdown was due to a covered peril (i.e., lightning), the inclusion of the anti-concurrent clause makes this a moot issue. Moreover, the Circuit affirmed the district court’s finding that Lantheus’ definition of corrosion incorrectly implies that a gradual process cannot also occur rapidly. The importance of the anti-concurrent clause in the Zurich’s policy cannot be overstated; it saved Zurich $70 million. Without the clause, Zurich likely would have had to cover at least some part of the claim. There was strong evidence that the power outage from a lightning strike caused the initial reactor shutdown. As such, if the lightning was the predominant trigger for the reactor shutdown, then it would have been a covered peril under the Zurich policy. The district court opinion also evidences that Lantheus’ interpretation of the policy was grasping at straws. The court rejected Lantheus’ “obscure” arguments of reverse ejusdem generis and noscitur a sociis for insurance policy interpretation. Thanks to Dan Beatty for his contribution to this post. If you have any questions about this post, please email Brian Gibbons at Brian Gibbons for additional information.   Previous Next Contact

News Homeowner's Exception And Mixed Use May 26, 2010 < Back Share to: Generally, Labor Law Section 240(1) imposes absolute liability on homeowners and general contractors. The Legislature carved out an exception for owners of one-and two-family dwellings who are not in a position to realize, understand and insure against the responsibilities of absolute liability imposed by Labor Law Sections 240(1) and 241(6). The exception, however, does not apply to single-family residences that are used for commercial purposes In Chester Lenda v. Breeze Concrete Corp. the defendant homeowner moved for summary judgment seeking dismissal of the plaintiff's Labor Law 240(1) and 241(6) claims arguing that he was entitled to the protection of the homeowner's exception because he planned to use the residence for potential overflow for family guests during vacations. The lower court denied the motion and the Appellate Division, Second Department upheld the denial noting that the evidence showed that a caretaker, employed by the owner, lived in the residence rent free as part of his compensation for maintaining two of the owner's other properties. Thus, the court held that the owner’s use of the property was strictly commercial. In cases of mixed use, the court’s determination on whether the homeowner's exception applies is based on the site and purpose test. This test takes into account the intention of the homeowner at the time of the injury and not their hopes for the future. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04341.htm Previous Next Contact

News Assumption of Risk for Summary Judgment: Uphill Battle in Ski Accident (NY) August 4, 2023 < Back Share to: In the recent case Perrone v. Catamount Ski Resort, LLC, the United States District Court for the Northern District of New York denied the defendants’ (ski resort and affiliated corporation) motion for summary judgment as the court found multiple questions of fact existed as to assumption of risk and proximate cause. This diversity action originally filed in the Southern District and then moved to the Northern District was initiated by the plaintiff, a Connecticut resident who crashed into an unguarded and unmarked snowmaking machine while skiing in 2019. The plaintiff at the time was 18-years-old and suffered “multiple pelvic fractures, right sacral alar/acetabular/ischium fracture, right inferior pubic rami fracture, and left pubic bone fracture.” According to the plaintiff she had been skiing in control the entire time, moving at a moderate speed, and had never realized that the snowmaker was on the trail before crashing into it. However, plaintiff’s father testified that plaintiff lost her footing due to ice, which then led to plaintiff crashing into the snowmaker while being carried by her forward motion. Furthermore, plaintiff’s father also stated that the snowmaker was off to the side of the trail rather than on the trail. Other skiers who witnessed the incident testified in accordance with plaintiff’s father stating that the snowmaker was on the ungroomed terrain rather than the trail and located at least six feet away from the actual trail marked with a warning sign. In seeking summary judgment, the defendants argued that due to the assumption of risk doctrine, the plaintiff’s claims are without merit. While the defendants have a duty to maintain a ski slope in a reasonably safe condition, the plaintiff will be barred from asserting claims if found to be an experienced skier or was out of control in moving down the slope. Although a skier will be deemed to have assumed the risk when the risks are not unique and caused by the defendants’ negligence, the court held that the assumption of risk argument failed because material questions of fact still exist as to whether the snowmaker was on the trail and whether there was adequate warning. These questions of fact are pivotal in determining whether the slope was maintained in a reasonably safe condition. Also, despite precedent indicating that summary judgment should be granted when the skier is experienced, the court found that plaintiff’s experience in skiing and whether she was moving in control down the slope still raised questions of material fact, so the inferences must be given to the plaintiff. Plaintiff claimed to be an experienced skier but had not skied in several years. This case shows how difficult summary judgment can be to obtain when different versions of the facts exist. Thanks to Allen Dejewski for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News PA Court Holds Instagram Account Discoverable March 30, 2018 < Back Share to: Pennsylvania law on the discoverability of social media records remains in flux, but a recent decision involving an auto accident and Instagram photos gives some guidance to circumstances in which a party may be compelled to provide discovery pertaining to social media content. In Kelter v. Flanagan, plaintiff filed suit after suffering injuries in an automobile accident. Following the deposition of the plaintiff, defendant filed a motion to compel, seeking log-in information to plaintiff’s Instagram account. Pennsylvania law states that relevant information may be obtained in discovery unless it is privileged. As held in previous cases, social networking accounts can be discoverable if it appears that they likely contain information that could be relevant, supported by the fact that there does not appear to be an expectation of privacy for social media accounts as because the account holder is sharing information with others in a public or quasi-public domain. In this case, plaintiff had publicly viewable Instagram posts showing her engaged in various physical activities after the accident. The posts included references to the plaintiff shoveling snow and going to the gym after the accident, although in her testimony she claimed that her injuries made her unable to engage in these activities. The judge explained that the posts were certainly relevant to establish the extent of her injuries and the success of her rehabilitation. The defendant asked for further discovery on plaintiff’s Instagram account, but plaintiff opposed, arguing that defendants already had access to all of the information because her Instagram posts at the time of the deposition were maintained in a public account. The defendant argued that the plaintiff could switch her account to private access at any time, leaving the defendant with no access to the information contained in the posts. The defendant also raised concerns that previously public posts could be deleted. The court found that the facts of this case established that there may be other relevant information about the plaintiff’s injuries contained in her Instagram account. The judge explained that the fact that there were some available public posts for a period of time did not eliminate the need for full access to plaintiff’s account, as the account could be converted to a private account, blocking the defendant’s access to the information. The judge further instructed the plaintiff not to remove any content from her Instagram account and defense counsel shall not share information gathered from plaintiff’s account with anyone not involved in the case. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News NJ App. Div. Affirms No Cause Verdict In Favor Of WCM In Insurance Broker E&O Case. March 15, 2010 < Back Share to: In Credit Suisse First Boston v. Lehman, et al, the plaintiff's had sought in excess of $5.5 million in damages from an insurance broker represented by WCM partner, Robert Ball, and a wholesaler. Plaintiffs alleged that the insurance broker and wholesaler failed to procure the appropriate insurance policies to cover a New Orleans hotel owned by Credit Suisse which was the subject of multiple mold claims. After a 6 week trial, the jury found the insurance broker negligent , but that the negligence did not proximately cause any alleged damages. On appeal , the New Jersey Appellate Division affirmed the verdict finding no error in the jury charge, " little question" that the insurance policies procured required the carrier to defend and indemnify Credit Suisse, and that Credit Suisse's decision to settle the underlying claims without suing the insurance carrier " highly questionable". The latter point had been the basis of WCM's lack of proximate cause argument to the jury. If you have any questions regarding this trial or appeal , please contact Robert Ball in our New Jersey office. http://www.judiciary.state.nj.us/opinions/a2031-08.pdf Previous Next Contact

News NJ App. Div. Allows Online Libel Suit To Proceed Without Proof Of Actual Damages. September 28, 2010 < Back Share to: In W.J.A. v. D.A., the Apellate Division reversed summary judgment awarded to the defendant. The decision allows the plaintiff to go forward with a lawsuit against his nephew, who wrote on a website that the uncle molested him as a child . Plaintiff admitted that there had been no actual damage or injury to his reputation. The Court acknowledged the trend towards requiring proof of actual harm from defamation, however, noted that mandating such damages in a suit over online accusations of sexual abuse would "create a license to defame". Please contact Robert Ball with any questions regarding this post. http://www.judiciary.state.nj.us/opinions/a0762-09.pdf Previous Next Contact

News PA Superior Court: Interrogatory Responses From Another Case Are Not Hearsay June 20, 2012 < Back Share to: The Pennsylvania Superior Court recently held that an asbestos plaintiff’s use of interrogatories that were prepared over 30 years ago in a California case were admissible. In Petrina v. Allied Glove, the plaintiff sued Union Carbide over the death of her husband following his exposure to asbestos dust from a joint compound that National Gypsum manufactured. Union Carbide moved for summary judgment based on a lack of product identification. In an attempt to defeat the motion, plaintiff’s counsel submitted answers to interrogatories filed by National Gypsum, a non-party to the case, in connection with a 1984 California case in which it was stated that Union Carbide was the exclusive supplier of asbestos to National Gypsum. The Allegheny Court of Common Pleas found that these interrogatories were inadmissible hearsay and refused to admit them. On appeal, the Superior Court rejected the lower court’s conclusion and noted that interrogatories may be used to create an issue of material fact to defeat a motion for summary judgment. Here, the interrogatories could be introduced at trial in two ways. First, a corporate representative of National Gypsum could affirm the contents of the interrogatories. The Court also noted that the interrogatories could be admitted as prior inconsistent statements. The Court reasoned that when National Gypsum’s representative had originally responded to the interrogatories, the responses became binding on the corporation he was answering on behalf of. Therefore, if another National Gypsum representative offered testimony that was inconsistent with the 1984 interrogatory responses, the responses could be admitted as prior inconsistent statements. Thanks to Colleen Hayes for her contribution to this post. http://caselaw.findlaw.com/pa-superior-court/1602780.html Previous Next Contact

News Evidence Required to Link Alleged Defect With Accident February 26, 2009 < Back Share to: In Bishop v. Marsh, plaintiff commenced an action in a trip and fall case to recover damages. The Supreme Court, Suffolk County granted a motion for summary judgment to the defense and plaintiff appealed. The Appellate Division Second Department affirmed the decision holding that while plaintiff testified that the lighting at the location of her fall was inadequate at the time of her fall, plaintiff failed to testify in her deposition or claim in her answer to summary judgment motion that she tripped because of the poor lighting. In essence, plaintiff neglected to match the cause with the effect and in doing so failed to raise a triable issue of fact. Thanks to Michael Monteith for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_01075.htm Previous Next Contact

News Lack of Constructive Notice Requires Constructive Evidence July 21, 2023 < Back Share to: The second judicial department recently reaffirmed its standing on the “lack of constructive notice” defense in a snow and ice slip and fall that happened on New York City subway stairs in 2018. Often used as a defense in premises liability cases, the defense of constructive notice is widely used by defendants to show that they lacked the type of notice that would make them liable for the existence of a certain condition. Here, in Islam v. City of New York, the court stated that in order for lack of constructive notice to be a provable defense, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599; see Ahmetaj v Mountainview Condominium, 171 AD3d 683, 684). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 AD3d at 644; see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). In the case here, defendants City of New York and the New York City Transit Authority moved for summary judgment on the basis that they did not have actual or constructive notice of the hazardous condition that caused plaintiff to slip. This court held that since the action was predicated on a snow and ice condition, “the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599) Defendants here only pointed to general cleaning and inspection practices which were insufficient to establish a lack of constructive notice. Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Will the Pope Be Deposed? April 1, 2010 < Back Share to: Holy Week is a time of reflection and anticipation as the Church prepares to celebrate Easter, its holiest feast day and the key to the central mystery of the Faith. This year, however, the Church's focus may not be on the holy season, but rather on a new wave of lawsuits arising out of allegations of priestly sexual misconduct. Putting aside the merits of the claims, which is far beyond the charter of this blawg, one of the interesting legal issues to arise is whether the Pope, himself, will be deposed. The Vatican is already mounting a sovereign immunity defense. Now, we'll have to see what a Kentucky court does. It's worth remembering that Kentucky was once at the forefront of the Know Nothing movement. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.msnbc.msn.com/id/36103589/ns/world_news-europe/ Previous Next Contact

News Piano Lawsuit Dismissed - Music to the Defense's Ears (NJ) April 2, 2021 < Back Share to: What do you do when the very experienced piano movers that you hired are unable to move the piano on your property? In a recent New Jersey case, the defendants were faced with that dilemma after the plaintiff was unsuccessful at moving a piano down the home’s stairwell. In Barbato v. Gallagher, the defendant homeowners noted that the piano had been moved into the home by utilizing the back deck, and the plaintiff opted to try this method himself. The plaintiff and his coworkers reported to the back deck but realized they could not move the piano due to the presence of a grill stand on the deck. The plaintiff then opted to stand on the grill stand while moving the piano. Not surprisingly, this resulted in an injury when the grill stand separated from the main portion of the deck. The plaintiff fell, and a portion of the piano fell on top of him. The facts of the case revealed that the grill stand was in place when the defendants purchased the home, and a home inspection did not reveal any issues with the stand. However, plaintiff’s expert found issues with the screws in the grill stand and corrosion/deterioration. Defendants moved for summary judgment, arguing that they did not owe the plaintiff a duty of care because he was hired as a professional piano mover, and the defendants did not supervise him or oversee his work. Additionally, the defendants argued that they had no actual or constructive notice of any issues with the grill stand. The trial court found that the defendants did not owe the plaintiff a duty of care and dismissed the complaint. The Appellate Court upheld the dismissal but disagreed with the trial court’s reasoning. While finding that the defendants did owe the plaintiff a duty of care, the Court found that there was no evidence of actual or constructive notice of a dangerous condition on the property. Accordingly, defendants did not breach their duty of care. This case highlights the importance of establishing the lack of any actual or constructive notice of a dangerous condition on a defendant's property. Please contact Heather Aquino with any questions. Previous Next Contact