News NY 2nd Dept: Though Held To Lesser Standard Decedent Must Show Proof of Negligence July 23, 2009 < Back Share to: In Bacic v. New York City Transit Authority, the decedent was found beneath two subway cars, but one of her shoes was found on the platform. There were no witnesses to the accident and it was later determined that the decedent’s blood alcohol level exceeded the legal limit. At the close of evidence the trial court granted the defendant's motion to dismiss the complaint based on the plaintiff’s failure to make out a prima facie case of negligence. The plaintiff appealed relying on their expert’s testimony that the train's conductor should have seen the decedent or, at least her shoe, on the platform. The appellate court affirmed the trial court’s decision finding that the plaintiff's expert's testimony was speculative and further held that although a deceased plaintiff is held to a lesser standard of proof, the plaintiff still has an obligation to provide some proof from which negligence could reasonable be inferred. Thanks to Ed Lomena for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_05734.htm Previous Next Contact

News Insurer Mailing Error Discloses Thousands of Social Security Numbers, Prompting Settlement with AG (NY) March 8, 2018 < Back Share to: The New York Attorney General recently announced a $575,000 settlement with EmblemHealth, one of the largest health plans in the United States, after a “mailing error” resulted in the accidental disclosure of more than 80,000 social security numbers. In October of 2016, EmblemHealth mailed over 80,000 policyholders, including approximately 55,000 New York residents, paper copies of their Medicare Prescription Drug Plan Evidence of Coverage. The mailing label affixed to each envelope included the policyholder’s Health Insurance Claim Number, which incorporated their social security number. According to the Attorney General’s Office, EmblemHealth’s actions violated many standards and procedures required by HIPAA. It also violated New York’s General Business Law § 399-ddd(2)(e), which prohibits printing an individual’s social security number “on a postcard or other mailer not requiring an envelope, or visible on the envelope or without the envelope having been opened.” As part of the negotiated settlement with the Attorney General’s office, EmblemHealth agreed to implement a Corrective Action Plan that included a thorough risk analysis of security risks associated with the mailing of policy documents, and submit a report of its findings to the Attorney General’s office within 180 days of the settlement. It also agreed to review and revise its policies and procedures based on the results of the assessment, and notify the Attorney General’s office of any action it takes. In addition, EmblemHealth pledged to make reasonable efforts to ensure that all relevant employees are adequately trained to avoid similar disclosures in future mailings, to report any known violations of EmblemHealth policies and procedures relating to the HIPAA Minimum Necessary Standard, and remediate all violations as soon as practicable. Lastly, for the next three years, EmblemHealth must report the loss or compromise of New York residents’ information to the Attorney General’s office, even in situations that would not otherwise trigger New York State reporting requirements. So, while this breach only costs EmblemHealth $575,000 to the AG's office, it will cost significantly more in terms of future compliance time and expense. EmblemHealth’s decision to settle, the amount of the settlement, and its agreement to be scrutinized by the Attorney General all speak volumes about the publicity risks associated with these kinds of privacy violations. First, the same subsection of the General Business Law discussed above limits judicial fines for violations arising from a single occurrence to $100,000 for the first offense. Fines for the second offense are also limited to $250,000. Second, the General Business Law provides would-be violators with an out: the provisions will not be “deemed . . . violated” if the entity demonstrates, by a preponderance of the evidence, that the violation was unintentional “and resulted from a bona fide error made notwithstanding . . . procedures reasonably adopted to avoid such error.” It is unclear whether any of the individual policyholders will be able to maintain direct actions against EmblemHealth, provided they can correlate damages to the breach. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News MTA Cannot Avoid Liability Under Emergency Doctrine (NY) September 22, 2023 < Back Share to: In Greene v. MTA Bus Co. 2023 NY Slip Op 04658, (September 20, 2023) plaintiff brought action against the MTA, and another motorist, when plaintiff sustained injuries caused by the sudden stop of the bus she was riding on. The facts here appeared clear cut as Plaintiff was riding an MTA bus on Hillside Avenue in Queens. When the bus was pulling away from the pickup stop, the co-defendant made a right turn directly into the path of the bus causing the bus driver to make a sudden stop. At summary judgment, MTA moved under the emergency doctrine, arguing they were faced with sudden and unexpected circumstances not of the driver’s own making, leaving the driver no time for reflection and that the driver is compelled to make a quick decision without weighing any alternative courses of conduct. Yet, both the lower court and the Second Department denied the MTA’s motion for summary judgment finding the MTA failed to eliminate their driver was not at fault for the accident, and that there were still questions of fact as to whether the driver exercised reasonable care to avoid the accident, or if his actions were contributing to the emergency. This case highlights the importance introducing the testimony that affirms your client’s “innocence.” Eliminating potential issues of fact, especially in situations where there is incentive to leave things open for interpretation, is imperative to get a court to grant summary judgment motions. Thanks to Chris Palmieri for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Charitable Immunity Prevails Even Where Non-Profit Rents to For-Profit Organization (NJ) August 31, 2017 < Back Share to: The New Jersey Charitable Immunity Act (CIA) bars negligence claims against nonprofit corporations organized exclusively for religious, charitable, or educational purposes. An entity qualifies for charitable immunity when it is formed for non-profit, educational, religious or charitable purpose, and was promoting such objectives and purposes at the time of the injury to a plaintiff who was a beneficiary of the organization’s works. In Losado v. Princeton University, the court examined whether Princeton University, a non-profit educational organization, was entitled to Charitable Immunity when the plaintiff was injured on its campus. The key question was whether the University was engaged in its educational objectives when renting a pool on campus to an outside organization. The plaintiff's daughter participated in a swim meet hosted by the Princeton Tigers Aquatic Club, an organization not affiliated with the university other than pool rental. The plaintiff was injured in a fall as she left the swim meet when she stepped into a depression adjacent to a walkway. Princeton University filed a motion for summary judgment, arguing that they were immune from suit under the CIA. The motion judge found that the plaintiff was a beneficiary of the University at the time of her injury, and therefore dismissed the claim under the CIA. On appeal, the plaintiff argued that the Judge erred since the renting of a facility on the campus was not part of the “educational pursuits” that the University was organized to advance. Specifically, the plaintiff argued that youth sports by an outside organization was not an educational objective that Princeton was organized to advance. They further noted that the PTAC was not a charitable organization. Per statutory requirement, the Appellate Court liberally construed the CIA to afford immunity to a non-profit entity even when renting facilities to members of the general public for social and recreational activities. So long as the non-profit facility is not dominated by rentals of for-profit entities, the use of the facilities serves important social and recreational needs of the community. Importantly, this case affirms once again that an organization is entitled to charitable immunity even when renting a portion of its property to a non-charitable organization. These type of rental agreements are common between organizations, and will not prevent the non-profit entity from asserting and succeeding on a charitable immunity defense. Thanks to Heather Aquino Obregon for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Was The Defect Trivial? August 11, 2022 < Back Share to: In Santos-Brea v. 901 Honeywell, LLC the Supreme Court, Bronx County addressed whether the raised sidewalk at issue was considered trivial and in turn, not actionable. Plaintiff alleged to sustain injuries when the front wheel of her walker hit a raised sidewalk adjacent to the defendant’s property. The defendants argued that the alleged defect was trivial in nature. In addition, their expert engineer opined that the height differential between slabs was .375 inches. However, plaintiff’s expert opined “….that the defendant's construction of the sidewalk with expansion joints which require a 1 ¼ inch width of caulking material was a departure from good and acceptable engineering practices in that the same resulted in the caulking material being unstable, coming out of the expansion joint, thus causing and creating a 1 inch wide, 1 inch deep, sidewalk defect…”. The court stated: “With regard to the duty to repair, §19-152(a) provides that a property owner is required to repair "a defective sidewalk flag in front of or abutting such property," which "contains a substantial defect." A substantial defect is defined to include a height differential between sidewalk flags of one-half inch or more.” The court then held that the plaintiff’s opposition raised a triable issue of fact as to whether the height differential was considered a substantial defect. This decision serves as a reminder that an abutting landowner may not be granted summary judgment unless you can prove that the raised sidewalk is not a substantial defect. Thanks to Corey Morgenstern for his contribution to this article. Should you have any questions, contact Andrew Gibbs. Previous Next Contact

News Balcony Collapse Coverage Suit Gets Second Chance Where Additional Insured Coverage is Found to be Ambiguous July 14, 2023 < Back Share to: In Westminster American Insurance Company v. Security National Insurance Company, the Third Circuit recently reversed a decision of the United States District Court for the Eastern District of Pennsylvania which held that an Employer’s Liability Exclusion (“ELE”) in a contractor’s policy precludes coverage for claims arising from a balcony collapse at a Philadelphia apartment building. The building owner and property manager sought additional insured coverage after a construction accident injured two workers. One of the men worked for the building’s property manager, Altman Management Co., Inc. (“Altman”). The ELE provided that coverage is unavailable for bodily injury to an employee of “any insured” arising out of and in the course of either (1) employment by the insured, or (2) the performance of duties related to the conduct of the insured’s business. The policy also included a Blanket Additional Insured Endorsement, which listed several entities in a schedule as insureds, but “only to the extent that the person or organization shown in the Schedule is held liable for your acts or omissions arising out of your ongoing operations performed for that insured.” In dismissing the lawsuit, the District Court found that Altman was an additional insured under the policy and therefore the ELE applied to preclude injuries sustained by its employee. The question of coverage on appeal was dependent on whether Altman was an additional insured listed on the policy schedule, as the District Court ruled. The appellants argued that a party does not become an “additional insured” unless they are “held liable for the named insured’s acts or omissions arising out of its ongoing operations performed for that insured.” They argued that Altman cannot be held liable based on the exclusivity of remedies provision in the Pennsylvania workers compensation statute, so Altman cannot be an “additional insured” under the policy. In reversing the District Court’s decision, the Third Circuit agreed and held that the ELE did not preclude coverage for the underlying settlements because the terms of the Additional Insured Endorsement were ambiguous. The Court found that there was more than one way to interpret the terms of the endorsement, so the provision would be construed against the insurer. The Court explained that being listed in the schedule alone did not confer additional insured status to Altman and that other interpretations were viable, and therefore the language was ambiguous. The takeaway from this decision is that the specific language in an additional insured endorsement is important in determining additional insured coverage under a contractor’s policy. Simply being listed as an additional insured in a schedule is not sufficient where there is limiting language in the endorsement and parties should consider the putative insured’s status and involvement in the work and accident. Thank you to Susan Derasmo for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Lead! It's Back. January 4, 2013 < Back Share to: Or maybe it never really went anywhere. But in either event, new research suggests that lead exposure can lead to violent crime, lower IQs, and even ADHD. No doubt the plaintiffs' bar is studying this research in an attempt to find new causes of action. Just be grateful if your policy has a lead exclusion, and, if not, we're here when you need us. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Indemnification for Another's Negligence? Not So Easy in NY. April 13, 2010 < Back Share to: Though GOL §5-322.1, provides that an indemnitee cannot be indemnified for its own negligence, there have always been certain situations where an indemnification provision -- that would otherwise appear to be void -- was upheld by courts because of its “saving language” or because of the specific facts of the case. An indemnification provision that seemingly indemnifies the indemnitee for its own negligence has been upheld so long as the provision has the saving language “to the fullest extent permitted by applicable law.” See, e.g., Dutton v. Charles Pankow Builders, 296 A.D.2d 321 (1st Dep't 2002), appeal denied, 99 N.Y.2d 511(2003). In other situations flawed indemnification provisions (purportedly indemnifying an indemnitee for its own negligence) have been enforced where the indemnitee’s lack of negligence has been established as a matter of fact. See, e.g., Alesius v. Good Samaritan Hospital, 23 A.D.3d 508 (2d Dept. 2005). In Hadzihasanovic v. 155 East 72nd Street Corp., 70 A.D.3d 637 (2d Dept. Feb. 2, 2010), defendants Dale and Stephen Hoffman purchased shares in a cooperative building and hired a contractor to perform certain alterations to their apartment. To gain the approval for the alterations, the Hoffmans signed an indemnification agreement in favor of 155 East 72nd Street Corp. (the building owner) and Wallack (the building manager). The plaintiff, a subcontractor's employee, was injured while working in the apartment. He sued the Hoffmans, 155 Corp. and Wallack. 155 Corp. and Wallack asserted, a cross claim against the Hoffmans for contractual indemnification. Subsequently, the Hoffmans moved, for summary judgment dismissing 155 Corp. and Wallack' cross claim for contractual indemnification, and 155 Corp. and Wallack cross-moved for summary judgment. The court granted the Hoffman's motion and denied 155 Corp. and Wallack's motion holding the the alteration agreement was void pursuant to GOL 5-322.1. The court found that "A broad indemnification provision in a lease, such as the alteration agreement here, which is not limited to the lessee's acts or omissions, fails to make exceptions for the lessor's own negligence, and does not limit the lessor's recovery under the lessee's indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321." While it is not clear from the decision whether the indemnification agreement had "saving language" or whether 155 Corp. and Wallack were free from negligence, it appears that the Second Department has revisited the issue--and is attempting to once again broaden GOL §5-322.1's reach. http://pdf.wcmlaw.com/pdf/GOL Opinion.pdf Special thanks to Cheryl Fuchs for her contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Losers Pay in Texas? May 27, 2011 < Back Share to: It appears that there is a fighting chance that Texas will pass losers pay legislation. If passed, the bill would be the first of its kind in the country and would award costs and fees to a prevailing party in a meritless suit. We shall see if the bill passes and if it signals a new wave of tort reform. Previous Next Contact

News Eating 10 Cans Of Tuna Fish Each Week For 2 1/2 Years Not Unreasonable October 24, 2011 < Back Share to: In [i]Porrazzo v. Bumble Bee Foods, et.al.[/i] (S.D.N.Y. 10-CV-4367) plaintiff sued defendants in strict product liability after being diagnosed with mercury poisoning. Plaintiff ate 10 cans of tune fish per week for a period of two and a half years, and had a blood mercury level more than twice the recommended limit. One of plaintiff’s claims was that the tuna fish was not fit for the ordinary purposes for which tuna fish was intended. Defendants moved to dismiss, arguing that a diet consisting of nearly 1500 cans, or over 500 pounds, of tuna in thirty-three months was not the intended use of the product, and was unreasonable as a matte of law. The court disagreed. The court held that what was “reasonable” was best left to a jury to decide. The court emphasized that such a decision, the reasonableness of plaintiff’s diet, was not proper for a motion to dismiss. The case had several other issues regarding the propriety of plaintiff’s complaint, but most of the objections were rejected because of the status of the case, i.e. motion to dismiss. The court noted that the claims might not survive a motion for summary judgment or trial. The lesson to take from this case is what one person believes is reasonable may differ from another, and thus the question is a quintessential “question of fact” for a jury. If you would like further information about this post, please contact David Tavella at dtavella@wcmlaw.com . Previous Next Contact

News Plumbing Roughing, Roughs Up Electrician And Triggers Labor Law &#167;240(1) Liability February 14, 2008 < Back Share to: In Cohen v. Memorial Sloan-Kettering Cancer Center, 2008 NY Slip Op 01025, AD and New York Co. Index 110800/05, Edward Cohen, plaintiff, alleged to have sustained injury to his left knee when his left foot became ensnared between the second rung of his ladder and a nearby metal rod jutting from a wall, ultimately causing him to fall to the ground. Plaintiffs cross moved for summary judgment on their Labor Law §240(1) claim, asserting that although the ladder was not defective and allowed him to complete the task at hand, it was inadequate since it did not permit him to safely step down one rung at a time to the ground. While the trial court granted defendants' motion for summary judgment on the Labor Law §241(6) claim, it denied plaintiffs' cross motion. The Appellate Division - First Department, in a 3-2 decision, modified the lower court's decision and granted plaintiffs' cross motion since the unrefuted evidence showed that plaintiff's fall was proximately caused by his inability to descend to the floor due to the absence of a sufficient safety device. The dissent adhered to the Court of Appeals holdings in Nieves v. Five Boro A.C. & Refrig. Corp., 93 NY 2d 914 (1999) and Melber v. 6333 Main St., 91 NY2d 759 (1998) and deemed the hazard at issue wholly unrelated to the elevated risk covered by Labor Law §240(1) and that the safety equipment provided by defendants to be adequate. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_01025.htm Previous Next Contact

News Keep Your Eye On The Ball: Soccer Player's Concussion Dismissed Against Athletic Department (NY) January 3, 2020 < Back Share to: In Calderone v Molloy College, plaintiff was a student-athlete who played for Molloy College’s soccer team. During a matchup, plaintiff took a soccer ball strike to the head and he suffered a concussion. Plaintiff stayed in the game and claimed that his injuries were exacerbated by continuing to play and brought suit against the athletic department and the referees stating that they should have seen the symptoms of the concussion and removed him from the game. Defendants argued that summary judgement should be granted under primary assumption of risk doctrine, as the risks of a sporting activity are known by or perfectly obvious to a voluntary participant. Plaintiff alleged that the doctrine did not apply because the defendants acted recklessly or negligently in leaving the plaintiff in the game. The lower court granted defendants’ motions and the plaintiff appealed. The Appellate Division Second Department upheld the lower court’s decision under the theory the “risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” The Court stated that there was no evidence that plaintiff had sustained a concussion or showed any signs of a concussion – as he remained in the game. Moreover, a soccer ball to the head causing a concussion is reasonable and calculable risk in playing soccer. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact