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News Defense Employees’ Testimony Creates Question Of Fact October 12, 2011 < Back Share to: In [i]Fragale v. City of N.Y.[/i], a case involving an alleged slip and fall, the First Department reversed the trial court’s decision that granted the defendant’s motion for summary judgment. The First Department held that issues of fact existed with respect to whether the defendant had constructive notice of the claimed condition. The lower court ignored the statements and testimony of the defendant’s employees as to whether there was an ongoing and recurring dangerous oil condition in the area where the plaintiff fell and that was routinely left undressed. Indeed, the defendant’s superintendent conceded that the floor was oily “for weeks and months.” Additional evidence was submitted that one of the defendant’s supervisors routinely performed maintenance on vehicles in the area where the plaintiff’s accident occurred, potentially creating the hazardous condition by causing oil to spill on the floor. For these reasons, questions of fact precluded summary judgment. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07138.htm Previous Next Contact

News An Unexplained Delay of 28 Days In Disclaiming Coverage May Be Untimely May 18, 2010 < Back Share to: Zevrone Realty Corporation, a holding company for a residential apartment building in the Bronx, sought coverage from its insurers for a sexual assault claim. Bronx Justice Kenneth Thompson, Jr. accepted, as a factual matter, that Zevrone's notice of the occurrence was untimely (a delay of almost one year to report an incident that would likely give rise to a claim against management). But Judge Thompson was asked to determine whether the insurers delay in issuing disclaimers on grounds of late notice were untimely. Citing the general principle that an insurer must give written notice of disclaimer as soon as is reasonably possible after it first learns of grounds for disclaimer of liability, Judge Thompson found that a delay of 98 days was unreasonable as a matter of law (thus granting summary judgment against Federal Insurance Company), and ruled that American International's delay of 28 days raised a question of fact as to whether the delay was "reasonable" under the circumstances (thus allowing the action to continue against American). Previous Next Contact

News Court Holds that Coverage Disputes Preclude Appraisal in Long-Running Lawsuit for Superstorm Sandy Damages (NY) October 29, 2020 < Back Share to: In a coverage dispute relating to property damage and lost income sustained by chocolatier Madelaine Chocolate Novelties after Superstorm Sandy, Magistrate Judge Steven Gold of the Eastern District of New York recently rejected Great Northern Insurance Company’s effort to force appraisal of the claim. In 2018, the Second Circuit overturned a 2017 Eastern District of New York decision which granted summary judgment to the Queens-based chocolatier based on the application of the policy’s “flood” exclusion, which barred coverage for damage caused by waves, tidal water, or the overflowing of the oceans. The case is likely headed to trial in the coming months. At this late stage of litigation, Great Northern moved to compel appraisal based on the policy’s Appraisal Clause, which applies where the parties “disagree on the value of the property or the amount of the loss.” Under New York law, issues relating to liability and/or coverage are not subject to appraisal; rather, only the issue of damages is subject to such a clause. While there were also issues regarding whether the demand for appraisal was made in good faith and whether it was untimely, Madelaine ’s primary argument opposing the motion is that there remains a large dispute as to how the parties interpret the phrase “replacement cost” – i.e., whether or not it refers to the replacement cost for used machinery or new machinery. Separately, Madelaine pointed to the dispute over whether certain costs would be calculated as part of their business interruption damages. Although the order by Judge Gold denying Great Northern’s motion did not expound upon the rationale (and a transcript of oral argument was not made available at the time of publishing), there is analogous support in the case law for Madelaine’s position that likely formed the basis for Judge Gold’s decision. Specifically, in Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 261 F.Supp.2d 293 (S.D.N.Y. 2003) the court held that the specific determination of the scope of the phrase “Restoration Period” was a coverage dispute for the court and not subject to appraisal. Great Northern did cite a decision from later proceedings in the same case, Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 279 F.Supp.2d 235 (S.D.N.Y. 2003), where the court held the appraisal panel could determine the actual length of the period; however, the court did so only after it determined how that period could be determined. Applying that logic to this case, only after a court determines what makes up the “replacement cost” can an appraisal panel determine its value. Thanks to Doug Giombarrese for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News NJ Supreme Court Clarifies Public Entity Immunity Standard February 4, 2009 < Back Share to: In its recent decision in Ogborne v. Mercer Cemetery Crop., 2009 WL 196047 (2009), the New Jersey Supreme Court concluded that when the facts are reasonably debatable as to whether the employee’s actions or the condition of the property caused plaintiff’s accident, then the more stringent “palpably unreasonable” standard applies. Pursuant to the New Jersey Tort Claims Act, plaintiffs suing a public entity for a dangerous condition on its property must prove that the entity acted “palpably unreasonably” in not protecting against the dangerous property condition. By contrast, when a public employee’s actions cause plaintiff’s injury, the plaintiff need only prove ordinary negligence. In Ogborne, the plaintiff was accidentally locked inside a cemetery when a cemetery employee closed the entrance gates early. Thus, she was forced to climb a brick wall in order to exit, fracturing her tibia in the process. In keeping with the broad immunity provided in the Tort Claims Act, the Supreme Court determined that the higher “palpably unreasonable” standard should apply in determining the public entity’s liability. Thanks to Claudi Condruz for her contribution to this post. http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf Previous Next Contact

News Judge Dismisses Jell-O Wrestling Lawsuit January 30, 2008 < Back Share to: A New York Judge dismissed New York University from a lawsuit brought by a student who was injured when he broke his hip while Jell-O wrestling at a dorm party. The student sought $1,000,000 in damages. The judge ruled that the student assumed the risk of injury. http://www.claimsjournal.com/news/east/2008/01/30/86832.htm Previous Next Contact

News Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY) January 27, 2023 < Back Share to: Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article. Previous Next Contact

News You Need Compensatory Damages to Get Delay Damages in Pennsylvania February 23, 2012 < Back Share to: In Larsen v. Allstate Property and Geico Ins. Co., plaintiffs were involved in a motor vehicle accident. Plaintiffs asserted claims for personal injuries against the tortfeasor and their own underinsured motorist carriers. At a UIM arbitration, the arbitrators entered an award for $62,000, an amount well within the tortfeasor’s $100,000 liability coverage. Since the damages award fell within the policy coverage, no compensatory damages were provided to the plaintiff, and no payment was made under the UIM policies. Fifteen month later, the plaintiffs filed a writ of summons and petitioned to confirm the arbitral award and award delay damages against Geico and Allstate. The Philadelphia Court of Common Pleas rejected plaintiffs’ contention that by filing a summons they created a civil case and were therefore entitled to delay damages under Pa.R.C.P. 238. The court determined since the arbitration award was less than the policy amounts, no delay damages judgment could be entered because no real award had been made. In other words, since the compensatory award was zero, the plaintiffs were not entitled to delay damages. Thanks to Colleen Hayes for her contribution to this post. Previous Next Contact

News Court Tosses Badmintion Claim Arising out of Errant Shot (NY) July 26, 2012 < Back Share to: The New York Appellate Division has reaffirmed that an injured participant in a sporting contest has an uphill battle to survive summary judgment when they bring personal injury actions. In Gibbons v. Pine Bush Cent. Sch. Dist., the plaintiff was injured while playing badminton in his high school gym class. An opposing player hit an errant shot and the shuttlecock hit plaintiff in the eye. Plaintiff claimed that the school did not provide proper supervision and should have supplied protective eye wear to the students. But the appellate court agreed that dismissal on summary judgment was proper because the plaintiff was not able to show that supervision would have prevented the other student’s errant shot. In addition, the school was not required to provide protective eye wear because there was not a generally accepted standard or practice in high schools to do so. Thanks to Mendel Simon for his contribution to this post. If you would like further information, please write to mbono@wmclaw.com Previous Next Contact

News Proceed with Caution when using Facebook as a Discovery Tool (NJ) November 5, 2009 < Back Share to: The New Jersey Office of Attorney Ethics is currently investigating a firm for ethics grievances for allegedly having a paralegal “friend” a plaintiff on Facebook in a personal injury case in order to gather more information about his purported injuries. The underlying personal injury action arose from a motor vehicle accident wherein plaintiff alleged he suffered a fractured femur when he was struck by a police car. According to the ethics complaint, defense counsel’s paralegal was instructed to scour the internet for information about plaintiff. The paralegal accessed plaintiff’s Facebook page at the direction of defense counsel. When plaintiff increased his privacy settings, the paralegal sent plaintiff a friend request to maintain access to his page. Plaintiff indicated that defense counsel asked very specific questions during his deposition, including whether he had traveled, gone dancing, wrestled and engaged in other activities that would tend to refute his claims about the seriousness of his injuries. Defendants then sought to enter video and other materials obtained through social media into evidence and accused plaintiff of perjury. The personal injury action ultimately settled after the trial judge barred the evidence because it was produced after the discovery deadline. Plaintiff in the personal injury case filed a grievance with the District 11-B Ethics Committee. The ethics committee secretary determined there was no unethical conduct and dismissed the complaint. Plaintiff then went to the New Jersey Office of Attorney Ethics, which sought ethics charges against defendant’s attorney. In September 2012, defendants filed a complaint against the Office of Attorney Ethics seeking a declaration that the OAE lacked authority to investigate and prosecute the case. The trial court dismissed the complaint and the appellate course affirmed the decision. The case is currently pending in the New Jersey Supreme Court. We will be keeping an eye as the case continues to develop. The message is that, while social media searches are certainly useful discovery devices, communication with a represented party, either directly or through a paralegal or investigator, crosses the line. Thanks to Steve Kim for his contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News The Fun Side of the Insurance Business. March 25, 2012 < Back Share to: Not all things are created equal. And some things are just more "fun" than others. To the outsider, insuring Hollywood certainly would seem to fall into that "fun" category as this article in today's NYT makes clear. Of course, as we all know, things are never quite what they seem as poor underwriting decisions (e.g. failing to ask the right questions) and commercial realities can conspire to make claims "payable upon receipt" as opposed to the subject of a detailed and strenuous claims analysis. Hats off to Hollywood indeed. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Dennis Wade to Speak at Federal Bar Association Art Conference in Rome on March 6, 2020 February 16, 2020 < Back Share to: On March 5-6, 2020, the Federal Bar Association will be hosting an Art Law and Litigation event, appropriately venued in Rome, Italy. The event, entitled, Restitution & Return: Art Law in Europe, will feature an array of attorneys and other authorities from the art world, to present on developments and challenges in art law litigation, from both the European and U.S. perspective. On March 6, Dennis Wade will be among a distinguished panel of speakers, and will discuss how litigation issues often play out in the area of looted and stolen art. For more information, please email Dennis, or click here for registration details. Previous Next Contact

News No Arbitrary AIDS-Phobia Cutoff In New York February 11, 2008 < Back Share to: The New York Court of Appeals ruled that a plaintiff exposed to AIDS is no longer limited to receiving damages for only six months of emotional distress. By way of background, an appellate division case had reasoned that a 6 month limit was reasonable since that is the period it customarily takes to determine whether an exposed person will actually develop HIV/AIDS. However, in Orstein, the court ruled that the emotional damage caused by the negligent exposure to the virus can cause emotional damage well beyond a six month period. http://www.nycourts.gov/ctapps/decisions/feb08/12opn08.pdf Previous Next Contact