News Second Department Clarifies Distinction Between Administrative And Legislative Actions (NY) August 18, 2023 < Back Share to: In In the Matter of Lishan Aklog v. Town of Harrison, a four-judge panel at the Second Department ended a town drama predating the Covid-19 Pandemic, and in so doing, clarified the sometimes-nuanced distinction between legislative and administrative actions by a township. See Aklog v. Harrison, N.Y.S.3d (2023). The Respondent, Anthony Robinson, has since 2012 served as the Commissioner of Public Works in the Town of Harrison in Westchester County. At a 2020 Town Board meeting, members expressed concerns about Robinson’s primary residency outside Harrison. Fueled by these concerns, the Board voted not to reappoint Robinson to his position, and instead, to appoint an acting commissioner. Importantly, the Board concretized its goals by adopting two resolutions. But to the Board’s chagrin, the resolutions were never implemented as Counsel for Harrison advised, on bases unexplored by the Court, of legal consequences of summarily removing Robinson from his post. Thus, Robinson has continued serving as Commissioner despite the figurative coup d'état attempt. But the Petitioner refused to accept the status quo, and filed suit in the Supreme Court, Westchester County. Petitioner initiated the action pursuant to CPLR § 78, seeking declaratory relief that would remove Robinson from his post and install the acting commissioner. The Court was persuaded by the argument of Robinson’s Counsel that the Petitioner lacked standing, and Petitioner appealed. New York courts have long been guided by the rule that “citizen taxpayers have standing to ‘challenge important governmental actions’ when the failure to accord standing would ‘erect an impenetrable barrier to any judicial scrutiny of legislative action’” See Matter of Colella v. Bd of Assessors of Nassau Cty., 95 NY2d 401 (Ct. of Appeal 2000). In the instant matter, the Court needed to examine whether town board resolutions constituted administrative or legislative action and deemed them the former. The Court relied on Matter of Clark v. Town Bd. Of Town of Clarkstown and held that Robinson’s appointment was a matter of administrative, rather than legislative, determination. See Clark v. Clarkstown, 28 A.D.3d 553 (2nd Dept. 2006). Much like Clark, which concerned the appointment of a local police chief, Aklog concerned the appointment of a local official. The Petitioner also failed to demonstrate that Robinson’s continuation as Commissioner was a matter “imperiling the public interest,” as required by General Municipal Law § 51. In Aklog, the Second Department did not outline an ironclad or universal principle that town board resolutions are not legislative in nature. But the key trend within the Department is towards such resolutions constituting administrative action. Thanks to Mark Kindschuh for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Written Notice Rule Not Applicable to Municipal Landlord July 13, 2009 < Back Share to: In Dick v. Wappinger, plaintiff filed an action to recover damages for personal injuries against the Town of Wappinger when she fell at the entrance to the NYS police barracks in Wappinger Falls. The Town leased the building to the NYS police pursuant to a written lease. The Town moved for summary judgment on the ground that it did not receive prior written notice of the defect. The Supreme Court, Dutchess County, granted the motion. On appeal, the Appellate Division, Second Department, reversed. The Appellate Division ultimately found that when a municipality leases property and acts as a landlord, it is subject to the same principles of tort law as a private landlord. Accordingly, the plaintiffs were not required to establish prior written notice to the Town of the alleged defect in order to maintain an action against the Town. Two Justices dissented from the majority opinion, arguing that there are only two exceptions to the written notice rule: 1) where the municipality created the defect; or 2) where a special use is found. The dissenting Justices argued that the majority's ruling improperly created a third exception: where the municipality functions in a proprietary capacity. Thanks to Robin Green for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_04371.htm Previous Next Contact

News Deemer Statute Inapplicable to Out-of-State Pedestrians (NJ) June 1, 2017 < Back Share to: New Jersey’s Deemer Statute, N.J.S.A. 17:28-1.4, applies to out-of-state drivers who are injured in accidents in New Jersey. Under the Deemer Statute, if you are an out-of-state resident and you are hurt in an accident in New Jersey, you will be subject to New Jersey’s restrictive limitation on lawsuit or “verbal threshold” if your insurance company is licensed to transact business in New Jersey. The verbal threshold places limitations on the right to recovery for injuries sustained in a motor vehicle accident. In Leggette v. GEICO, plaintiff, a Virginia resident, was struck by a N.J. licensed driver as she crossed a street in Princeton. The trial court granted defendant’s summary judgment dismissal of her declaratory judgment complaint against GEICO. Plaintiff appealed the trial court’s decision, seeking PIP benefits pursuant to the Deemer Statute, since her Virginia policy was deemed to provide standard PIP coverage while her vehicle was in this state. The trial judge concluded that the Deemer Statute was inapplicable. Plaintiff drove her Virginia registered vehicle insured by GEICO to Princeton University to visit her daughter. Plaintiff parked her vehicle and was walking across the street when she was struck by an automobile. Plaintiff settled her claims against the driver of the automobile, and then initiated a declaratory judgment action against defendant GEICO for PIP coverage to satisfy the $113,825.47 in medical bills. Plaintiff argued that GEICO was authorized to conduct business in New Jersey and was therefore legally obligated under the Deemer Statute to provide minimum standard automobile insurance policy PIP benefits. Defendant GEICO refuted this interpretation, arguing that plaintiff, a pedestrian, was not using or operating her vehicle at the time of the accident and so coverage required by the Deemer Statute was not triggered. Defendant argued that a nexus between the out-of-state automobile and the accident is necessary. The Appellate Court agreed with GEICO, since the Deemer Statute specified the terms “occupying…or using” an automobile in the context of eligibility for PIP benefits. Here, plaintiff parked her car, locked the doors, walked away, exited the parking lot, and was crossing a street when she was struck by a vehicle. At the time she sustained her injuries, her “use” of her vehicle had ended. As such, the Deemer Statute was not triggered and the Appellate Court affirmed the trial court’s decision. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News In NJ, A Convicted Drunk Can Sue The Tavern. April 30, 2010 < Back Share to: In the case of Voss v. Tranquilino, (App. Div. 2010), the plaintiff, who had a .196 BAC, was injured when his motorcycle collided with a vehicle operated by defendant Tranquilino. Although the plaintiff pleaded guilty to drunk driving, this did not stop him from seeking to finding someone else to blame for his injuries. He blamed Tranquilino and Tiffany's Restaurant which he claimed negligently served him alcohol and thus was a proximate cause of the subsequent accident. Tiffany's and Tranquilino moved to dismiss the complaint relying upon N.J.S.A. 39:6A-4.5(b) which provides that a driver of a motor vehicle who is convicted of or pleads guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), in connection with an accident “shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.” Voss did not oppose Tranquilino's dismissal motion, but he did oppose Tiffany's. Plaintiff argued that the Dram Shop Act, N.J.S.A. 2A:22A-4, which provides a cause of action if the bar/restaurant negligently serves alcohol to a visibly intoxicated person trumped N.J.S.A. 39:6A-4.5(b). In a case of first impression, the Appellate Division agreed, held that N.J.S.A. 39:6A-4.5(b) only applies to automobile claims, and denied Tiffany's motion. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/Drunken Drivers.pdf http://pdf.wcmlaw.com/pdf/Voss.pdf Previous Next Contact

WCM has litigated virtually every type of sports and recreational liability matter ranging from a tragic drowning in a school pool or a lake at a summer camp, to the failure to use an automated external defibrillator at a youth sports game. We’ve worked with infectious disease experts when needed to identify the source of an outbreak of herpes gladiatorum in a wrestling program and successfully tried cases focused on the duties owed by a sports center owner to players injured during indoor soccer games. You name the sport or recreational activity and we have handled a matter involving that exposure. Let us put that experience to work for you. Sports and Recreational Liability WCM has litigated virtually every type of sports and recreational liability matter ranging from a tragic drowning in a school pool or a lake at a summer camp, to the failure to use an automated external defibrillator at a youth sports game. We’ve worked with infectious disease experts when needed to identify the source of an outbreak of herpes gladiatorum in a wrestling program and successfully tried cases focused on the duties owed by a sports center owner to players injured during indoor soccer games. You name the sport or recreational activity and we have handled a matter involving that exposure. Let us put that experience to work for you. Practice Lead Brian Gibbons Partner +1 332 345 7164 bgibbons@wcmlaw.com Download Download

News NJ Insurance Rescinded For Misrepresented "Spouses" January 13, 2010 < Back Share to: New Jersey Manufacturers Insurance Company was granted dismissal of an uninsured motorist claim when its rescission of a policy was enforced. The insured driver had misrepresented in her insurance application that she was married when, in fact, she was living with her fiancé. The insurer presented evidence that it would not have issued the policy had it known that the two were not wed. Instead, she would have been referred to a subsidiary company and quoted a significantly higher premium. Thus, the misrepresentation was material to the decision to write the policy. The insured persuaded the trial judge that her misstatement was not a willful concealment to induce the insurer to issue the policy. However, in an unreported decision, the Appellate Division made clear that a misrepresentation of an objective truth that is material to the underwriting process will support rescission if the insurer relied upon it regardless of the insured’s motive for the misrepresentation. See Henriques v. New Jersey Manufacturers Insurance Co., 2009 WL 5125021 found at http://www.judiciary.state.nj.us/opinions/a2755-08.pdf If you would like more information regarding this post, please email Denise Ricci at dricci@wcmlaw.com . Previous Next Contact

News Failure to Follow Directions Results in $1,000,000 in UM Benefits (PA) April 6, 2016 < Back Share to: On March 24, 2016, the United States Court of Appeals for the Third Circuit affirmed a summary judgment order, declaring that Zurich was liable for up to $1,000,000 in uninsured motorist (“UM”) coverage for injuries suffered by Stefan Freeth. Freeth was injured while working on the back of a truck owned by his employer, Road-Con, Inc. A passing tractor-trailer struck a traffic sign, propelling it into Freeth’s leg. Because the tractor trailer was never identified, Road-Con’s business insurance provided UM coverage for Freeth’s injuries. That insurance policy was issued by Zurich, who contended that the policy only had a limit of $35,000 in UM coverage due to the existence of an executed Uninsured/Underinsured Motorists Coverage Selection/Rejection Limits Summary Form. Freeth filed suit, seeking a declaration that the policy provided $1,000,000 in UM coverage. In response, Zurich argued that in February 2012, prior to Freeth’s injury, Road-Con (through its president) signed an Uninsured/Underinsured Motorists Coverage Selection/Rejection Limits Summary Form (“Summary Form”) electing to reduce the UM coverage to $35,000. The Summary Form advised the insured that the form was “NOT A SUBSTITUTE FOR REVIEWING EACH INDIVIDUAL STATE’S SELECTION/REJECTION FORM FOR UM AND UIM COVERAGE. YOU ARE REQUIRED TO DO SO.” In light of this warning, Freeth argued that the signature on the Summary Form was not a sufficiently clear manifestation of Road-Con’s intent to reduce the coverage, and, therefore UM coverage defaulted to the same amount as the bodily injury liability coverage, or $1,000,000, by operation of Pennsylvania law. Despite the language in the Summary Form warning Road-Con that signing the form was insufficient to effect a reduction in coverage, Road-Con never signed a Pennsylvania-specific form requesting reduced UM coverage, even though it did so for other states. The court found this omission to be dispositive, reasoning that to any reasonable reader, the repeated emphatic warnings in the Summary Form would create an expectation that coverage amounts within a given state would be set at levels provided by law unless a form designed and submitted specifically for that state requested otherwise. The court reasoned that if Zurich warned its insureds that an additional state-specific form was needed to reduce coverage and did not enclose the form (or enclosed it but never received it back), it could not prevail on the theory that an insured’s signature on the very document that contained the warning was, in the absence of the state-specific form, a sufficient manifestation of intent to reduce coverage. Accordingly, the court affirmed the district court’s decision, holding that the mere act of signing a document like the Summary Form would ordinarily not suffice to reduce coverage, because the language on the Summary Form itself clearly and repeatedly stated that signing the Summary Form was insufficient to effect a reduction in coverage. Thanks to Hillary Ladov for her contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News Bound to Your Transcript: Careful What You Say in NY September 16, 2009 < Back Share to: The long standing rule that a party cannot submit a self-serving affidavit nor allege a new theory of liability for the first time in opposition to a summary judgment motion was recently upheld in Nicholas v. New York City Housing Authority. In Nicholas, the plaintiff testified that he slipped on a wet condition located on a staircase owned by the NYCHA. NYCHA moved for summary judgment on the basis that it did not have actual or constructive notice of the condition. In opposition to the motion, the plaintiff submitted an affidavit alleging for the first time that he fell on a defective/broken stair. The lower court denied NYCHA’s motion, but the First Department reversed and dismissed the complaint based on the fact that the plaintiff tailored his affidavit to avoid the consequences of his deposition testimony. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06463.htm Previous Next Contact

News NJ App. Div. Interprets Notice Of Other Actions Requirement In Complaints. February 19, 2010 < Back Share to: In Kent Motor Cars, Inc. v. Reynolds and Reynolds, the New Jersey Appellate Division held that the trial court erred in dismissing a successive action since the defendant failed to establish that it was substantially prejudiced by the plaintiff's failure to comply with its Rule 4:5-1 ( b) notice obligations. Rule 4:5-1 (b) requires that a party provide notice it its first pleading of the names of other potentially liable parties. The failure to comply with this notice can result in dismissal if the failure to provide notice was inexcusable and the undisclosed parties right to defend the succesive action was substantially prejudiced. The Court found that the undisclosed defendant was not in a worse position defending the successive claim than it would have been in defending the first action. www.judiciary.state.nj.us/opinions/a5246-07.pdf Previous Next Contact

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