News The Fine Print Matters: Winning Contractual Indemnification Claims Between Tenants and Landlords September 20, 2024 < Back Share to: Recently, in Errazuri v. E Food Supermarket, Inc. , 228 A.D.3d 732, the Appellate Division, Second Department decided on an appeal by two co-defendants in a personal injury suit, after both were denied summary judgment by the Supreme Court. Plaintiff filed suit after she sustained injuries arising from a trip and fall on a sidewalk abutting a supermarket, and sued both the tenant supermarket and the premises owner for negligence. In its responsive pleadings, the premises owner asserted a cross-claim against the tenant supermarket for contractual indemnification, citing the lease agreement between the co-defendants. After the close of discovery, the premises owner moved for summary judgment on its cross-claim, and the tenant supermarket also moved for summary judgment seeking dismissal of the cross-claim, and both motions were denied. On appeal, the Second Department affirmed the denial of summary judgment to the premises owner, but reversed the Supreme Court’s denial of summary judgment in favor of the tenant supermarket. In explaining its decision, the court took a very granular approach in analyzing the terms of the lease agreement. The lease agreement provided that the tenant supermarket would indemnify the premises owner for “any claims arising from any breach or default on the part of the supermarket in the performance of its obligations under the terms of the lease.” As such, the court then turned to other lease provisions to determine the responsibilities of each party. Importantly, although the main body of the lease provided that the supermarket was obligated to make “all repairs and replacements to the sidewalks,” the court did not end its analysis there. Instead, they found a conflicting term in the rider which stated that the owner was to “make all structural repairs and the tenant is required to make only nonstructural repairs.” The court then turned to another lease provision which stated that the tenant was required to “make nonstructural repairs to the sidewalks.” Because the rider provided that in the event of a conflict between the rider and the main lease, the rider prevails, the court concluded that the totality of the lease documents established that the responsibility to perform structural repairs of the sidewalk rested with the premises owner, not the tenant supermarket. Therefore, the supermarket was not obligated to indemnify the premises owner, and the supermarket was awarded summary judgment. This case highlights the need for defense counsel to obtain all relevant lease agreements and documents from insured tenants and landowners. When facing a contractual indemnity claim, it is critical to fully parse all lease provisions and interpret them in a way that is consistent with the rest of the agreement, as it could make all the difference in a risk transfer opportunity. Errazuri v. E Food Supermarket Inc .pdf Download PDF • 169KB Previous Next Contact

News NY App Div: Insurers Window to Disclaim Coverage May Be Shrinking January 5, 2010 < Back Share to: If an insurance company wishes to disclaim coverage to an insured based on untimely notice of the claim, they must act expeditiously or risk being estopped from disclaiming coverage on those grounds. In Scott McLaughlin Truck & Equipment Sales, Inc. v. Selective Ins. Co. of Am., the court found untimely a disclaimer issued by an insurance company less than two months after the insurer was on notice of a potential claim, even though the plaintiff had failed to report the claim to the insurer for nearly four years. The court noted that the timeliness of a disclaimer is measured from the moment when the insurer first learns of the grounds for the disclaimer. Here, the court concluded that Selective knew or should have known of the grounds for disclaimer on the same day they were first notified of the claim. Selective asserted that difficulties with its investigation resulted in the delay in disclaiming and generally the courts have allowed an insurer a reasonable amount of time to conduct investigation and thereafter issue an effective disclaimer. However, the case at hand suggests that New York Courts are affording insurers increasingly less time to issue timely disclaimers of coverage. Thanks to Chris O'Leary for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_10030.htm Previous Next Contact

News Call Your Next Witness - Matthew McCann April 26, 2023 < Back Share to: On this episode of the Call Your Next Witness podcast, we welcome fellow attorney, Queens Native and Regis High School alum Matthew McCann. Matt’s practice areas have varied greatly over the years, spanning white collar criminal defense, securities litigation, land use, cannabis, Special Education, and appellate practice, now at Moss & Colella, P.C. in Southfield, Michigan. Matt’s career and practice areas have evolved and grown in ways he never would have predicted as a younger attorney. And of course, we spent some time discussing Matt’s other “practice area” -- Battle Rap –both in NYC and Detroit. Listen here: https://lnkd.in/e8NbgmSd This may be the first ever lawyer-centric battle rap #podcast ever recorded. #wcmlaw For more information about the podcast, email Brian Gibbons. Previous Next Contact

News Trial Court's Setting Aside Jury Verdict Affirmed by NY App. Div. April 21, 2010 < Back Share to: In Beck v. Westchester County Health Care Corp., plaintiff underwent a surgical procedure at defendant’s medical center when she alleges to have contracted the Hepatitis C virus. At trial, plaintiff, who prior to the procedure tested negative for Hepatitis C, presented testimonial evidence that eight weeks after the procedure, she was diagnosed with the same Hepatitis C virus as the patient who immediately preceded her in the same operating room. Plaintiff also presented testimonial evidence that the incubation period for the disease coincided with the date of her injuries and that the amount and disposal of the narcotic administered by syringe on the previous patient. The jury found that the defendant medical center acted within good and accepted standards of care and treatment with respect to plaintiff. Plaintiff appealed the jury’s verdict. The court granted plaintiff’s motion to set aside the jury verdict and granted a new trial. The court found that the verdict was contrary to the weight of the evidence, which was in favor of plaintiff. Defendant’s appeal of the court’s decision was denied. Thanks to Katusia Lundi for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_03051.htm Previous Next Contact

News Surgery Not Necessarily A Permanent Injury Under Tort Claims Act (NJ) November 16, 2017 < Back Share to: In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery. Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment. In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome. By all accounts, plaintiff enjoyed a good surgical outcome, and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the accident. Although she complained of debilitating pain, plaintiff had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief. Plaintiff's medical expert found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased, or how that resulted in the substantial loss of any bodily function. The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, "a mere limitation on a bodily function" will not suffice. Similarly, "an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain," is insufficient. The court dismissed the plaintiff's claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act. Even surgery may vault the requirement of a substantial and permanent injury. The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person's function. Thanks to Heather Aquino Obregon for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Is Mailed Notice of a Policy Change Sufficient? A PA Jury Will Decide. February 1, 2013 < Back Share to: A jury is set to determine whether the addition of a “household exclusion” provision in an automobile insurance policy rises to the level of a material change, such that it would require proof that the insured was notified of and understood the change to his subsequent coverage. In Oesterling v. Allstate Insurance, the plaintiff, Robert Oesterling, was injured in a 2006 accident involving his motor scooter which was not covered under his Allstate insurance policy. Though his original 1998 policy did not include a household exclusion, it was incorporated into the terms of his policy in 2005, and he received notice in the mail which he now contests was inadequate. When faced with the issue, Lawrence County Court of Common Pleas Judge Thomas M. Piccione distinguished cases where an insured specifically requests a level of coverage that was unilaterally reduced at a later point in time, from those where the insured failed to read the policy with the detail necessary to discover regular exclusions. The judge noted that although Oesterling’s original 1998 policy would have provided him with coverage for his accident, the household exclusion served to block coverage for vehicles not specifically covered under the policy, including his motor scooter. While Allstate notified Oesterling of the change to his policy in a mailer with “Important Notice” printed in large, bold font and the mailer clearly and unambiguously expressed the addition of the household exclusion provision, and instructed Oesterling to read the relevant changes and contact his insurance agent if he was confused or needed clarification, the court ruled that a jury must decide whether an "Important Notice" advisory notice was legally sufficient to change the scope of coverage. Special thanks to Samantha Berman for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Nazi Forced Art Sales August 17, 2009 < Back Share to: The “forced sale” by the Nazis of art owned by Jewish dealers and collectors is once again in the legal news. In Schoeps v. The Andrew Lloyd Webber Art Foundation (Appellate Division, First Department, August 11, 2009), the court addressed a rather routine procedural question: Whether plaintiff had standing to pursue recovery of Picasso’s “Absinthe Drinker” without first becoming appointed a representative of the estate of the original owner. The appellate court decided that Schoeps did indeed lack standing to bring the action, and thus affirmed dismissal of the complaint. But the underlying facts are fascinating and likely will re-surface in the very near future. In 1935, Paul von Mendelssohn-Bartholody, a German-Jewish banker, was forced to sell a valuable Picasso to a German art dealer. According to Julius Schoeps, a great-nephew of Bartholody and one of the heirs to the Bartholody estate, Bartholody was compelled to sell the painting under duress resulting from Nazi persecution. Schoeps claimed -- albeit without written proof -- that all of the Bartholody heirs had assigned their rights to him in respect of the Picasso. As such, Schoeps brought an action against The Andrew Lloyd Webber Art Foundation, as the current owner of the artwork. The foundation bought the painting in 1995 in an open auction by Sotheby’s in New York. The disputed claim to ownership came to light when the Foundation sought to sell the painting at a November 8, 2006 auction at Christie’s in New York. Ultimately, because of the controversy, the Foundation withdrew the painting from the Christie’s auction and returned it to London. The sole issue before the court was whether Schoeps could bring the action to challenge ownership without first being appointed a representative. In ruling for the Foundation on the “standing” issue, the court made plain that its decision rested on Schoeps’ failure to establish by expert evidence or otherwise that he had the right to bring the action. As the court stated: “Clearly, we do not seek to limit the manner by which a foreign legal representative can establish standing; our decision is limited to the holding that merely being vested with title at the time of the decedent’s death is insufficient grounds for permitting a party to pursue a claim in this jurisdiction.” http://www.nycourts.gov/reporter/3dseries/2009/2009_06155.htm Previous Next Contact

News WCM Is Pleased to Announce That Dana Purcaro Has Been Promoted to Counsel June 26, 2019 < Back Share to: With effect as of July 1, 2019, WCM is pleased to announce that Dana Purcaro has been promoted to the rank of counsel. Dana, who is based in WCM's New York office, focuses her practice on defense of claims including complex general liability, New York's Labor Law, premises liability, property damage and motor vehicle accident claims. Dana joined WCM in 2015, after gaining experience at a New York civil litigation firm, concentrating in general liability defense. Previous Next Contact

News Cheerleader Assumed Risk of Injury February 6, 2009 < Back Share to: The Fourth Department’s recent February 2009 decision in Williams v. Clinton Central School District, upholds New York’s long-standing assumption of risk doctrine. In this case, Williams, a high school senior, commenced suit against her school district for injuries sustained while performing a cheerleading stunt. She alleged that the school unreasonably increased the risk of injury by failing to provide a matted surface during practice. In upholding the dismissal of plaintiff’s complaint, the Fourth Department held that although the school district was under a duty to exercise reasonable care to protect student athletes, the risk of performing cheerleading stunts on a non-matted surface was open, obvious, and inherent in plaintiff’s participation in the activity. Thanks to Lora Gleicher for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_00742.htm Previous Next Contact

News NY weighs new alchohol liability law. October 16, 2007 < Back Share to: Under the proposed law, sellers of fake ids would be held liable for the damages caused by their patrons. http://www.insurancejournal.com/news/east/2007/10/16/84308.htm?print=1 Previous Next Contact

News Broad Allegations of Injury Can Lead To Extensive Discovery January 7, 2011 < Back Share to: In DeLouise v. S.K.I Wholesale Beer Corp., the Second Department supported the defendant’s entitlement to obtain medical records related to the plaintiff’s prior injuries. In reversing the lower court’s denial of the defendant’s motion to compel the plaintiff to provide authorizations for certain medical and hospital records relating to the plaintiff’s previous medical conditions/injuries, the Second Department emphasized that a party waives the “physician-patient privilege by affirmatively putting his or her physical or mental condition in issue." DeLouise had made broad allegations of physical injuries and mental anguish, thereby putting his prior injuries and medical condition at issue. In fact, the court noted that the prior injuries and conditions were “material and necessary to [the plaintiff’s] claims of having sustained a serious injury within the meaning of Insurance Law § 5102(d), as well as to any claim of loss of enjoyment of life.” Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09883.htm Previous Next Contact

News A Policy Limit is a Policy Limit (NJ) June 7, 2017 < Back Share to: In 2012, Superstorm Sandy caused millions of dollars in damages to residential and commercial property owners on the Jersey Shore. Five years later, some claims are still making their way through the Courts. The New Jersey Supreme Court granted certiorari in Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company to interpret an insurance policy at issue in one of the Sandy claims involving flood limits coverage and debris removal coverage. The plaintiff, a Jersey Shore apartment complex located in a flood zone, was insured by Travelers for property coverage with a $1,000,000 limitation for a flood occurrence. Travelers paid plaintiff’s $1 million claim – the full policy flood limit. However, plaintiff sought additional coverage for $207,961.28 of storm-related debris removal costs pursuant to the policy’s Property Coverage Form. Travelers denied this additional claim, and litigation ensued. The Trial Court granted partial summary judgment in favor of Travelers finding that there was no ambiguity in the flood coverage language or the terms of the debris removal coverage. While the Court acknowledged that the policy appeared to allow additional debris removal coverage, it concluded that, “the general condition that the debris removal is an additional coverage [that] must yield to the specific term in the Supplemental Coverage Declarations that the [$1,000,000] coverage [which] applies to ‘all losses’ caused by flood.” In a subsequent motion, the Court granted summary judgment in favor of Travelers on the remaining issues and dismissed the action in its entirety. Plaintiff appealed. The Appellate Division reversed the Trial Court finding coverage for plaintiff’s storm-related debris removal costs. The Appellate Division agreed with the Trial Court that the flood coverage and debris removal coverage were unambiguous. However, the panel ultimately concluded that the policy entitled plaintiff to a maximum of $500,000 for debris removal coverage in addition to the $1 million Flood Limits. It held that the $1 million limitation in the Supplemental Coverage Declarations applied to insured “buildings” rather than insured “occurrences.” On the other hand, the Court found that debris removal coverage applied to all “Covered Property,” not just plaintiff’s buildings. The Court interpreted the policy’s Flood Endorsement to apply “only to loss or damage to covered property caused by flood, meaning Oxford’s building” [Emphasis added]. Therefore, the Appellate Division awarded plaintiff the $207,961.28 for storm-related debris removal costs reversing the Trial Court. Travelers appealed. Writing for a majority of the Court, Justice Fernandez-Vina held that the policy’s sublimit for debris removal coverage could not be interpreted as a self-contained policy provision separate and apart from the policy’s $1,000,000 flood limit. Once the Court decided the terms of the Policy were unambiguous, plaintiff’s reasonable expectations argument failed. This rule of contract construction is also known as verba fortius accipiuntur contra proferentem roughly translated that every presumption is construed against the drafter. In upholding the policy’s $1 million flood Limit in favor of the insurer, the New Jersey Supreme Court took the position that the contra proferentem rule is a “doctrine of last resort” when interpreting terms of a policy of insurance. “If the language is clear, that is the end of the inquiry.” In addition, the Court explained that “sophisticated commercial insureds … do not receive the benefit of having contractual ambiguities construed against the insurer.” Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact