News A Tree Falls in Orange County, Does it Make a Sound (of Liability) (NY) December 11, 2020 < Back Share to: In Pozzani v. Village of S. Blooming, the plaintiff was driving through the Village when a tree fell on her car. Plaintiff sustained injuries, and sued the Village. There was no evidence that the Village knew that the tree was in an unsafe condition before the accident. The Village moved for summary judgment, arguing that it had no actual or constructive notice that the tree was in a dangerous condition. The Second Department agreed that the Village did not have actual or constructive notice of the alleged dangerous condition of the subject tree (see Ivancic v Olmstead, 66 NY2d 349 (Ct. of Appeals 1985); Harris v Village of E. Hills, 41 NY2d 446 (Ct. of Appeals 1977); Figueroa-Corser v Town of Cortlandt, 107 AD3d 755 (2d Dept. 2013). Plaintiff failed to put forth any evidence raising a triable issue of fact regarding notice. This case highlights the fact that the mere happening of an accident is not sufficient to impose liability on a defendant. Rather, the plaintiff bears the burden of establishing actual or constructive notice of the dangerous condition. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Fore! -- PA Appellate Court Hits One Long and Straight. August 28, 2009 < Back Share to: In a ruling of special interest to WCM Partners, one of whom recently hit another in the side with a golf ball, a PA appellate court has just ruled in favor of a plaintiff who was struck in the face by a golfing partner's tee shot. In the case of Zeidman v. Fischer, the plaintiff was tasked with checking on the location of the group in front of him. While driving back to the tee to advise his partners that they could tee off, defendant Fischer teed off and smashed the ball right into the plaintiff's face. A lawsuit resulted. The trial court ruled for the defendant, but the appellate court reversed. It held that, under the particular facts of this case, it could not rule as a matter of law that the risk was "one inherent or common, frequent and expected” to the game of golf. The case will proceed. This is not good news for the guilty WCM partner as there are still 705 days remaining until the statute of limitations expires. http://www.superior.court.state.pa.us/opin.htm http://www.palawweekly.com/getarticle.aspx?ID=29913 Previous Next Contact

News Holiday Party Goers and Party Hosts Beware (NY) February 15, 2019 < Back Share to: Social hosts and party rental companies need to be extra cautious in connection with the safety of their premises in order to avoid injuries by festive party goers. In Poliziani v. Culinary Institute of America, the appellate court reversed the order of the lower court which granted summary judgment to the defendant Culinary Institute of America dismissing the plaintiff’s personal injury complaint. Here, plaintiffs were attending an event hosted by the Culinary Institute of America. After dinner, the plaintiff began dancing on a temporary dance floor. While dancing, the plaintiff fell, after she slipped on the beveled edge between the dance floor and the adjoining rug strikign her her head, injuring her right wrist and losing consciousness. Plaintiff subsequently commenced this action against the defendant and the company that provided the tent rental who also supplied the temporary dance floor. The defendants argued that they were entitled to summary judgment on the grounds that the beveled edge was not defective or hazardous, and constituted a nonactionable “trivial” defect. The Supreme Court granted this motion and the plaintiff now appealled. The appellate court held that whether a dangerous or defective condition exists on the property of another so as to create an actionable issue of liability depends on the peculiar facts and circumstances of each individual case. A defendant who is seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect do not increase the risks posed by the equipment. The Court of Appeals held that even a physically small defect may be actionable, like a jagged edge or irregular rough surface, especially in situations where the defect is located where people are distracted from easily observing it (like in this case where people were not expected to look down at their feet). Thus, in reversing the trial court’s order of summary judgment in favor of the defendants, the appellate court concluded that there are triable issues of facts as to whether there was a dangerous condition created even by a small defect. As such, party goers and party hosts should remain diligent, as this case sets a clear warning that even small, relatively insignficant defects can give rise to liability. Thanks to Nicole Lyalin for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Jury Finds Against Building Owner in 5 Pointz VARA Case November 9, 2017 < Back Share to: 5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals. The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects. But eventually Wolfkoff decided to sell the warehouse to housing developers. The artists filed suit under Visual Artists Rights Act (VARA) in Cohen v. G&M Realty. VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes. VARA grants two primary rights: The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work. The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti. Judge Frederic Block, in federal court in Brooklyn, 5 Pointz TRO decision, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute. Last month the case went to trial, and this week the jury returned its verdict, finding in favor of plaintiff. The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.” It seems they reached different decisions for different works, and awarded a variety of damages. The entire verdict should be released shortly. And there is an interesting quirk: the parties agreed the jury verdict will be "advisory" and that the Judge will render the final decision -- so we will be certain to report in the future on the final outcome. Please e-mail Mike Bono with any questions or for more information. Previous Next Contact

News Does the Nature of a Dog Bite always Demonstrate Knowledge of Vicious Propensities? (NY) December 4, 2020 < Back Share to: In Costanza v Scarlata, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment on the issue of liability after defendant’s dog bit plaintiff on her face. The plaintiff alleged that defendants had a dog with vicious propensities, and as such, defendants moved for summary judgment on the basis that they didn’t have knowledge of any vicious propensities. The court stated, “The owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" (citations omitted). The defendants were able to show they were entitled to summary judgment by showing: 1) they were not aware (or should have been aware), that their dog ever bit anyone; 2) they were not aware that their dog ever exhibited prior aggressive behavior; and 3) that although their dog occasionally jumped on people when greeting them, it was not enough to create an issue of fact as to whether the dog had vicious propensities. The court added that the “nature and severity of the attack does not demonstrate that the defendants knew or should have known of the dog’s vicious propensities”. This decision serves as a reminder that in a dog bite case, just because the attack may be severe, it does not mean the defendant is always liable. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Everything Flows Downhill: New York AD Rules That Sub's Insurers Must Fund Entire Settlement April 28, 2010 < Back Share to: New York construction litigation is like a multi-headed dragon: cut off one head (issue) and another one quickly emerges. In analyzing its ultimate exposure in this context, an insurer must consider both the underlying liability of all its insureds as well as how the coverage disputes amongst the various insurers will play out at the end of the case. In Indemnity Ins. v. St Paul Mercury, the Appellate Division, First Department grappled with a mind numbing fact pattern after a general contractor’s employee was injured due to the negligence of a subcontractor. The case discusses the interplay between New York’s Labor Law, contractual indemnity and additional insurance requirements, the hierarchy of coverage and New York’s anti subrogation doctrine. At the end of the day, the subcontractor’s insurers wind up footing the entire bill for the $3,000,000 settlement with no contribution from the owner or the general contractor. The First Department discusses the distinction between liability and coverage as well as the anti subrogation doctrine, which prevents the subcontractor’s insurer from seeking contribution from its additional insureds in an indirect effort to pick the pockets of the policies of the owner and general contractor. Who says insurance coverage litigation can't be fun? If you have any questions or comments on this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03254.htm Previous Next Contact

News NY Court of Appeals Issues Important Decision on an Insurer's Duty to Defend June 28, 2013 < Back Share to: We previously posted about the potential significance of the K2 Investment Group, LLP v. American Guarantee & Liability Ins. Co. case, and now the Court of Appeals has issued an important ruling that will impact how insurance companies approach the decision whether to disclaim coverage. Previously, if a New York court disagreed with the insurer’s decision not to defend a case, the court still undertook an analysis as to whether the insurer owed indemnification. Now, however, the Court of Appeals has held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on Policy exclusions" to avoid indemnification. In K2, plaintiffs brought a legal malpractice action against their attorney, Daniels, for his failure to record mortgages. Daniels’ malpractice insurer immediately denied coverage for the lawsuit based on a policy exclusion that barred coverage for Daniels’ acts for a business enterprise in which he had a controlling interest. The insurer contended that Daniels’ liability arose out of his actions to obtain a loan for his own company. The policy also excluded claims arising out of Daniels’ status as a shareholder of a business enterprise. The thrust of the insurer’s argument was that Daniels was not acting as plaintiffs’ attorney, but rather in furtherance of his own company -- acts that were excluded from the malpractice policy. When the insurer failed to pick up Daniels’ defense, the insured defaulted and assigned his rights under the policy to the plaintiffs, who then commenced a declaratory judgment action against the insurer and were awarded summary judgment by the trial court. The Appellate Division, First Department, issued a split decision affirming the trial court’s denial of the motion. The majority of the appellate panel found that that the exclusions did not apply because, according solely to the allegations in the complaint, the insured’s liability did not arise out of Daniel’s ownership interest in his company but instead in his role as attorney to the plaintiffs/lenders. The First Department held that the insurer did not have a right to litigate this factual issue in the declaratory judgment action because a default judgment had already been entered in the underlying suit due to the insurer’s failure to defend Daniels. In their dissent, the two dissenting judges argued that the insurer’s duty to indemnify is based on a determination of all applicable facts and because the issue was not litigated in the underlying action, the insurer was entitled to litigate the issue in the DJ action. Upon review, the Court of Appeals did not even analyze whether the exclusions applied, holding instead that the insurer “lost its right to rely on these exclusions in litigation over its indemnity obligation” because it breached its duty to defend the insured Daniels. The Court’s stated purpose was so that “[t]his rule will give insurers an incentive to defend the cases they are bound by law to defend, and thus to give insureds the full benefit of their bargain.” The Court of Appeals did recognize the possibility of some exceptions, such as where indemnifying the insured would be against public policy (e.g. where the insured is liable for intentional conduct). Based on this decision, in many circumstances insurers will need to strongly consider agreeing to defend the insured under a reservation of rights and then immediately commence a declaratory judgment action to supports its coverage position. Otherwise, they risk being precluded from asserting policy exclusions that very well may apply to the facts of the loss. Thanks to Steve Kaye for his contribution to this post. If you would like more information please write to Mike Bono.                       Previous Next Contact

News Father Knows Best: Church Assets May Be Valued In a Pastor's Divorce Proceeding November 15, 2007 < Back Share to: The wife of a pastor sued for divorce in New York. Her attorney argued that the pastor --the wife's estranged husband-- used the church's assets as his "personal piggy bank." Not suprisingly, the pastor protested that he was merely a humble "W-2" employee of a duly registered not for profit religious corporation. Ruling that the church and its finances may be considered the pastor's "alter ego" if he had unfettered control of its assets for his personal use, the court permitted the wife to pursue the valuation of the church's assets for equitable distribution purposes. We are reminded of the biblical admonition: You reap what you sow. (Galatians 6-7) Or the more practical lesson to be careful how much you tell your spouse if your marriage is on shaky ground. http://www.nylawyer.com/adgifs/decisions/111507diamond.pdf Previous Next Contact

News Don't Be Late - NY APP Div. Finds Tardy Defendants In Default November 1, 2010 < Back Share to: In the recent decision of Blaunt v. Berkovits, the Second Department held that the trial court had erred in excusing defendant's default in failing to timely answer the complaint. Let this be a lesson -- though parties are usually lax about a couple of days and many are willing to provide stipulations extending time to answer -- the New York State Courts are not always as forgiving. Here, they determined that though there was only a short delay in answering the complaint, the defendants failed to provide any satisfactory explanation for the delay and failed to make any showing of any potentially meritorious defense to the claims raised by plaintiff. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07707.htm Previous Next Contact

News Insurance Adjuster's Estimate Supports Damage Award Against Contractor (NJ) December 12, 2013 < Back Share to: We frequently see articles and cases about conflicts between insurers and homeowners due to storm damage. But recently, the alignment between the insurer and policyholder lead to a damage award against a contractor. In Peltier v. Barbera, plaintiff had the defendant construction contractor provide an estimate for necessary storm repairs for her home. Defendant suggested that plaintiff file a claim with her homeowner's insurance carrier, which plaintiff did, and the carrier provided a detailed breakdown of damages and costs of repair as determined by an adjuster retained by the carrier. The contract between the plaintiff and the defendant specifically and expressly relied upon the cost breakdown provided by the carrier. Despite receiving full payment, the defendant only completed part of the work, leading to a lawsuit by the homeowner. During the lower court bench trial, the judge found that the defendant had indeed breached the contract with the plaintiff by failing to complete the agreed upon work. However, the judge also determined that the plaintiff failed to prove damages, primarily because she relied exclusively upon the estimate prepared by the insurance company and its adjuster, rather than expert testimony to substantiate her claim for damages. Relying on long-standing principles of fairness and equity, the Appellate Division determined that where a breach of contract and subsequent damage occurred with certainty (as was the case here), uncertainty about the amount of damages should not serve as a bar to making a party whole. Finding that the insurance estimate and cost breakdown was sufficient evidence to establish the scope and cost of the necessary work, the appellate court reversed the lower court decision and directed entry of an award of damages against the contractor for the cost of work he failed to perform. Thanks to Emily Kidder for her contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News NFL's Insurers Win Home Field Advantage in NY May 31, 2013 < Back Share to: The NFL has been sued by over 4,000 former players who allege that they suffered brain injuries during their careers, claiming that the NFL negligently failed to protect their players against such long-term injuries. These claims have spawned insurance coverage litigation in New York involving 187 policies that were issued between 1968-2012. Many of the insurers have taken the position that their policies do not provide coverage for the claims and that the alleged injuries do not fall within their policy’s period of coverage. Meanwhile, the NFL filed suit in California, believing that state was a more favorable venue for the coverage litigation. The NFL argued that all of the insurers owe defense and indemnity for the players’ claims because the injuries continued through multiple policy periods and should be treated as occurring during each period. The NFL argued that California was the best forum for the litigation because California has greater contacts with the parties. For example, three teams play in California: the San Francisco 49ers, Oakland Raiders and San Diego Chargers. Further, the NFL raised an issue well known to fans -- only one team, the Buffalo Bills, plays in New York. Despite their names, the New York Giants and New York Jets play in New Jersey. The Court nevertheless ruled that the insurers' lawsuits in New York should take precedence over the California litigation because the NFL is headquartered in New York and most of the insurers are headquartered on the East Coast. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact

News Helmet Safety – Court Permits Defense Expert Testimony on Impact of Helmet Usage (PA) October 14, 2022 < Back Share to: In Nelson v. American Honda 2 1:18-cv-000210 (W.D. Pa. August 23, 2022), the Court denied a Plaintiff’s motion to preclude testimony of an expert witness who would testify on the impact a helmet would have in a fatal all-terrain vehicle (ATV) accident. Seventeen-year-old Dylan Fehlman died while driving an all-terrain vehicle (ATV) manufactured by American Honda Motor Company, Inc. (Honda) without a helmet. His body was discovered on top of railroad tracks with the ATV lying near him overturned. Dylan's mother Jamie Nelson, as administratrix of his estate, sued Honda alleging several theories of liability. Dylan’s stepfather Christopher Nelson was the owner of the ATV. Mr. Nelson purchased the vehicle second-hand from a private seller and the previous owner did not give any written materials except a bill of sale. The ATV had a decal that instructed the user to read the owner’s manual and always wear a helmet. Mr. Nelson never inquired about obtaining a copy of the owner’s manual. Plaintiff’s experts argued that the ATV had defects in the design, which caused or materially contributed to Dylan’s accident and death, and that Honda failed in its responsibility to adequately protect Dylan, and provide adequate warnings. Honda’s expert offered differing opinions to Mrs. Nelson. Most notably, a Honda expert placed blame on Dylan’s failure to wear a helmet. In the ruling at issue, the Estate argued that scientific evidence that wearing a helmet lessens head injuries are already known to be true by lay people; therefore, an expert is not needed at trial. Furthermore, Mrs. Nelson argued that the testimony of the expert is not necessary and therefore not helpful to the jury. Honda argued that while the average juror may know that helmets lessen head injuries generally, expert testimony will enlighten as to the effects an available helmet would have had on Dylan's head injury. Honda’s expert used the helmet that was available to Dylan on the day of the accident and performed testing regarding the particular circumstances of the accident. Using the Daubert test, the Court held that Honda’s expert had specialized knowledge, reliability of scientific evidence, and testimony relevant to the case, thus helmet testimony was related to the post-sale duty to warn claim in that Plaintiff failed to heed the decal warning to wear a helmet and admissible to the jury. Thanks to Jean Scanlan for assistance on this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact