News Failure to File the Note of Issue in Time Gets Case Dismissed in Nassau January 19, 2011 < Back Share to: In Fenner v. County of Nassau, the Supreme Court in Nassau County issued a certification order, directing the plaintiff to file his Note of Issue within 90 days. On the day of the deadline, the plaintiff had neither filed his Note of Issue nor moved to extend the time to file the Note of Issue. Accordingly, the Court dismissed the complaint but later, pursuant to the plaintiff's motion, restored the complaint to the pre-note calendar. The Second Department reversed that decision, finding that the plaintiff had failed to demonstrate a reasonable excuse for the dealy. The Court found that "law office failure" did not rise to the level of a reasonable excuse. Further, the Court found that the plaintiff had failed to establish the existence of a meritorious cause of action. Thanks to Georgia Stagias for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_00178.htm Previous Next Contact

News Proof Items Destroyed Were "Key Evidence" Required For Spoliation Sanctions March 4, 2009 < Back Share to: The First Department’s recent decision in Kugel v. City of New York, et al., highlights the strict spoliation standard that must be met before the court will strike a party’s pleading. Namely, a pleading may be stricken due to the intentional destruction of key evidence. In Kugel, the named defendant, A. Jetta Towing, discarded documentary evidence, including tow truck invoices, because its president believed the corporation had been dissolved. A. Jetta, represented by this office, argued that the documentary evidence was not key evidence, as it was not the actual product, part, or component involved in the accident. Rather, it was argued that the key evidence was the motor vehicle that was allegedly involved in the accident. The First Department agreed and held that the documents were not key evidence warranting such a harsh sanction, thus reinstating the defendant’s answer. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01521.htm Previous Next Contact

News Latency Protects You From Negligence Until it is No Longer Latent July 12, 2024 < Back Share to: It is not surprising that a property owner is not responsible for a latent defect on their property that they would not discovery upon reasonable inspection. However, once they become aware of that defect and fail to fix it, THEN they risk liability. Damages caused by this latent defect which occurred before the landowner was made aware of it will not lead to liability against them, but hose after they become aware of it may. This was the primary issue in Huang v. Fort Greene Partnership Homes Condominium . Trista Huang was a property owner next to Fort Greene Partnership Homes Condominium, a collection of condominium units. On September 27, 20143, water began flowing into Huang's basement through the wall adjacent to Fort Greene's property. It was not until October 9, 2014, that the New York City Department of Environmental Protection (DEP) discovered that the cause of the water was a broken water service line in the Fort Greene's property. Although the DEP served Fort Greene with a three-day notice to repair the line, water continued flowing onto Plaintiff's property for another week, only ending on October 17, 2013, when the line was fully repaired. Defendants eventually moved for summary judgment to dismiss the complaint in its entirety. While this was initially denied by the trial court, the Appellate Division Second Department reversed most of this decision. The Appellate Division dismissed the negligence claim for damage prior to October 7, 2014, when Huang first emailed the Fort Greene about the water, because it found the broken water line was a latent problem, but they affirmed the denial as to negligence for after that day because Fort Greene now had notice of the problem, and the Court evidence they may have delayed repairing the damage. The main lesson to be learned from this case: Once a latent defect rears its ugly head, fix it. You are only shielded from liability due to latency until it's not latent anymore. Huang v. Fort Greene .pdf Download PDF • 905KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact

News In Memory of Jeff Weston February 27, 2022 < Back Share to: We at WCM mourn the untimely passing of our long-time friend and London Market representative Jeff Weston on February 19, 2022. Jeff was felled by a heart attack during a skiing holiday in Finland with his dear wife Irina and their two lovely young girls, Sienna and Lucia. In the midst of pain and deep sorrow for a life tragically cut short, we give thanks for knowing Jeff and enjoying the great pleasure of his company. While our grief is hard felt, our aim here is to celebrate the life of a man who gave his all to his family and friends. We also pay tribute to a consummate insurance professional who, with a big grin, a welcoming handshake, a wooden leg and a deep knowledge of the insurance industry, made all around him feel better about themselves—and the undertaking of the moment. While we suffer the loss of our friend, we shall continued to be sustained by Jeff’s spirit—and his always sunny outlook on life’s journey even during our golfing misadventures. Our thoughts and prayers are with Jeff's wife and daughters. We will provide any further public details as they become available.   Previous Next Contact

News NJ Appellate Division Approves Auto Policy's Family Member Exclusion July 7, 2009 < Back Share to: In Cassini v. Soussou, the Appellate Division ruled that an injured driver could not recover from an excess policy purchased by the son of the defendant, due to an exclusion denying coverage when use of a family member owned vehicle other than the named insured's " covered auto" was involved. The Court found the exclusion to be unambiguous, and that excluding coverage for a separately insured family member's use of a noncovered auto was not uncommon, was legally sound and was supported by the policy. http://www.judiciary.state.nj.us/opinions/a5205-07.pdf Previous Next Contact

News Conditional Indemnification: Some Get it, Some Don't. November 12, 2010 < Back Share to: In Vovchik v. Metropolitan Development Partners, II, LLC, the plaintiff, an employee of High-Rise was injured when he fell into a 10-12 foot ditch while wheeling along an 80-pound concrete core-drilling machine at a construction site. Metropolitan was the owner, Gotham was the general contractor, and High-Rise was its subcontractor. In its contract with Gotham, High-Rise agreed to indemnify Metropolitan and Gotham. Accordingly, the court stated that Metropolitan and Gothem could be indemnified if they were not negligent. With respect to the Metropolitan, its only involvement was weekly progress updates. Accordingly, the court found that Metropolitan could not have been negligent, and granted it an award of conditional indemnification. Gotham, however, created a ramp at the site that plaintiff had to avoid while wheeling the machine. As such, a jury could find it liable for plaintiff's accident to some extent. Accordingly, the court denied its motion for conditional indemnification against High-Rise. http://www.law.com/jsp/nylj/CaseDecisionNY.jsp?id=1202474622127 Previous Next Contact

News NJ Court Dismisses Complaint against LoJack and Enforces Arbitration Clause February 8, 2017 < Back Share to: Plaintiff Tracey Perez disregarded a clear arbitration provision in a contract with defendant Leonard Automotive Enterprises, to his own eventual detriment. In Perez v. Leonard Automotive Enterprises, plaintiff purchased a vehicle with a LoJack Stolen Vehicle System from Toyota. As part of the purchase, plaintiff signed a Retail Installment Sales Contract which contained a privision, to wit, disputes between the parties would be resolved through arbitration. Sometime after the purchase, the vehicle was stolen and totaled after being involved in a fire. Plaintiff filed a complaint against defendant alleging that it failed to install and activate the LoJack Stolen Vehicle System. Defendant filed a motion to dismiss the complaint seeking to enforce the binding arbitration provision within the contract. Plaintiff opposed the motion with allegations that the arbitration provision was invalid. The Court determined that the arbitration provision was enforceable and will “pass muster when phrased in plain language that is understandable to the reasonable consumer.” The court pointed out that the arbitration provision was immediately above the signature block on the first page of the contract and would be impossible to miss. Additionally, the court found that the arbitration provision was prefaced with a large warning in bold, capital letters that stated: PLEASE REVIEW – IMPORTANT – AFFECTS YOUR LEGAL RIGHTS. The arbitration provision was not buried within an obscure document, but clearly and conspicuously set apart from the rest of the contract on its own page with specific directions right above the signature page. The court found that the consumer should have read the full provision carefully before signing the document. As such, the court dismissed plaintiff’s complaint with prejudice and granted defendant’s motion to compel arbitration. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Intentional Tortious Act Is An Assault And Battery August 31, 2011 < Back Share to: In QBE Inc. Corp. v. Jinx-Proof, Inc., the Supreme Court, New York County had to determine whether a complaint alleging both negligence and intentional acts regarding the throwing of a glass into the underlying plaintiff’s face was an assault and battery. QBE issued a general liability policy to Jinx-Proof. Jinx-Proof operated bar where an altercation arose between the underlying plaintiff and a security guard/bouncer. The security guard allegedly threw a glass in the underlying plaintiff’s face, causing injuries. QBE then brought a declaratory judgment action alleging coverage was excluded due to the assault and battery exclusion. The court noted that, while negligence was alleged by the underlying plaintiff, the cause of action was rooted in intentional tortuous behavior. “The pleadings clearly demonstrate that the main act, which would give rise to any recovery, is [the security guard’s] alleged intentional throwing of a glass object. The possibility that the insured may be found liable under a theory of negligence does not overcome the policy’s assault and battery exclusion and any injury resulting from such acts.” The court granted QBE summary judgment that it did not owe a duty to defend or indemnify its insured. If you would like more information regarding this post, please contact David Tavella at dtavella@wcmlaw.com . http://pdf.wcmlaw.com/pdf/jinx-proof.pdf. Previous Next Contact

News Plaintiff Cannot be Labeled Malingerer by Expert (NJ) May 9, 2017 < Back Share to: In a case of first impression, a New Jersey appellate court issued a "bright line" rule disallowing expert opinion on the concept of symptom magnification, malingering, or any other negative terminology impugning a plaintiff's believability. In Rodriguez v. Wal-Mart Stores, Inc., the plaintiff filed suit after she allegedly sustained injuries in an un-witnessed incident involving a metal display rack alleged to have fallen on her while shopping. At trial, the plaintiff's medical experts diagnosed Complex Regional Pain Syndrome. The defense presented the testimony of an expert neurologist who testified that the plaintiff had some initial soft tissue injury but no damage to her nerves. He denied that the plaintiff had any objective findings to support the diagnosis of Complex Regional Pain Syndrome. Further, he opined that the plaintiff was exaggerating and magnifying her injury symptoms. The jury returned a defense verdict. On appeal, the court found that the defense expert’s opinion was an improper attack on the plaintiff’s overall credibly. Ultimately, the Appellate court held that such opinion evidence from a doctor should be categorically disallowed at trial. The Rodriguez opinion is important since it will restrict defense medical experts from classifying a plaintiff as a malingerer during trial. We note that a qualified expert may still testify that a plaintiff’s subjective complaints appear to be inconsistent with objective medical testing, without using labels such as “malingerer” or “symptom magnification.” Going forward, it will be important for defense expert witnesses to properly frame any testimony surrounding inconsistent subjective complaints so that the testimony will be admissible at trial. Thanks to Heather Obregon for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Appeals court questions sovereign immunity defense in WTC MC 100 case. October 3, 2007 < Back Share to: http://www.insurancejournal.com/news/east/2007/10/03/83978.htm?print=1 Previous Next Contact

News Microwave "Popcorn Lung" Claim Filed In Denver January 18, 2008 < Back Share to: Wayne Watson has filed suit against Kroger Co. in U.S. District Court in Denver claiming injury from the buttery flavor added to microwave popcorn. Watson generally eats 2 bags of microwave popcorn a day and has been diagnosed with bronchiolitis obliterans, also known as "popcorn lung". The vapor from the chemical , diacetyl, which is used to provide the butter flavor to microwave popcorn, has been associated with respiratory illness in popcorn plantworkers by some experts. http://www.njlnews.com/daily_briefing Previous Next Contact

News Home Is Where The Heart Is For UIM Benefits (NY) January 24, 2020 < Back Share to: In a recent decision by the New York Appellate Division, Second Department, the Court refused to dismiss a lawsuit seeking underinsured motorist benefits for the estate of a deceased pedestrian. In Jian Liang v Progressive Casualty Insurance Company, the Court stated that there were factual issues, as to whether the pedestrian, who was the insured's mother, was a "relative" pursuant to the terms of the insurance policy. By way of background, Rui Liang and Zhi Lu purchased auto insurance from Progressive Casualty Insurance Co. The couple provided a Randolph, Vermont, address on the application and listed themselves as the only two household residents and drivers. The auto policy, which was renewed several times, contained an uninsured/underinsured motorist provision that applied to named insureds Liang and Lu or a "relative." The policy defined "relative" as "a person residing in the same household" as the named insured and related by blood or marriage. Liang's mother, Bi Guan, was struck and killed by an ambulette while crossing a street in Brooklyn. At the time of the accident, Guan lived in a house in Brooklyn owned by Liang and Lu. The plaintiff sued Progressive for breach of contract and bad faith after the insurer refused to pay UIM benefits for Guan under Liang and Lu's policy. The Kings County Supreme Court denied the insurer's motion for summary judgment. Progressive appealed, arguing that the policy required Liang and Guan to reside in the same household for Guan to be covered under the underinsured motorist provision. The Appellate Court concluded that there were factual issues as to whether Liang resided at the property. The Court noted that in an affidavit in opposition to Progressive's summary judgment motion, Liang indicated that she and Lu began working and living in Vermont in 2002, but she considered the Brooklyn premises her second home. In addition, she said her three sons lived in the Brooklyn house until each went to college and then continued to live there from time to time. Liang also said she stayed at the house seven or eight times a year in addition to holidays and vacations and kept clothes and other personal items there. Although Liang had a Vermont driver's license, the court noted that her tax returns listed the Brooklyn address and that she served as a juror in New York. Ultimately, the Court concluded that Progressive failed to prove that Liang had made a misrepresentation on the insurance application, as "household residents" was not a defined term in the application and was, therefore, ambiguous. However, the Second Department also noted that the trial court should have granted summary judgment in favor of the insurer on the bad-faith cause of action. It stated, “Progressive conducted an investigation and had an arguable basis for disclaiming coverage.” Liang is an interesting New York case for purposes of analyzing coverage issues where terms in an insurance policy are undefined. Bi Guan undoubtedly would have met the definition of “relative.” However, it is possible if the term “household residents” has been defined in the policy, Bi Guan’s estate may not have qualified for coverage. Thank you to Joseph S. Anzalone for his contribution to this post. Please email Colleen E. Hayes with any questions.   Previous Next Contact