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News New York’s Anti-SLAPP Law & New Jersey’s Entire Controversy Doctrine Result In Pre-Answer Dismissal September 8, 2023 < Back Share to: The Appellate Division, First Department, recently affirmed a trial court’s pre-answer dismissal of a complaint alleging defamation and breach of contract. In Gillespie v, Kling, plaintiff was an actor and formerly married to defendant, the host of a podcast that was streamed on Apple Music. The couple resided in New Jersey and filed divorce proceedings in that state after their marriage failed. Defendant subsequently published a podcast alluding to suffering abuse from plaintiff during their marriage. This allegedly caused plaintiff to request a mutual non-disparagement clause in their marital separation agreement which was entered into after the podcast was published. The podcast remained online, and plaintiff alleged that it caused him to lose acting opportunities. Plaintiff sued defendant in New York Supreme Court alleging defamation and breach of contract based on the non-disparagement clause in the agreement. Defendant moved to dismiss the defamation action in lieu of filing an Answer based on New York’s recently amended Anti-SLAPP statute, claiming that the podcast was speech touching on a matter of public concern directed at a public forum. Defendant also moved to dismiss the breach of contract claim based on New Jersey’s entire controversy action, asserting plaintiff should have raised the issue during the divorce proceedings. The trial court granted the motion on both grounds and plaintiff appealed. The First Department affirmed, holding that statements describing domestic violence during a marriage made on a podcast fell within the protection of the anti-SLAPP law. The First Department found that since the anti-SLAPP law applied, it was Plaintiff’s burden to show, by clear and convincing evidence, that Defendant’s statements were false and made with knowledge of their falsity. Plaintiff only submitted a conclusory and self-serving affidavit and therefore did not meet this burden. The First Department also held that New Jersey’s entire controversy doctrine barred the breach of contract cause of action. Because plaintiff had knowledge of defendant’s statements before entering into the marital separation agreement, he was required to bring his breach of contract claim during the divorce proceedings. The Court also held that based on the merger doctrine, the marital separation agreement was merged into the judgment of divorce, and thus ceased to exist as a separately enforceable contract. This decision shows the utility of the newly amended Anti-SLAPP statute in obtaining favorable defense decisions on dispositive motions. It also highlights the importance of considering all potential defenses, even those arising from the law of other jurisdictions, in defending cases. Thank you to Brendan Gilmartin for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News PA Statute Penalizing Lawyers For Frivolous Actions Upheld April 28, 2017 < Back Share to: The Dragonetti Act, a Pennsylvania statute, creates a cause of action against attorneys for frivolous, vindictive, and vexatious lawsuits. The statute was recently challenged in Villani v. Seibert, a land ownership dispute, where the defendants invoke the statute as a counter to what they believed where baseless claims. The plaintiff and involved counsel moved to dismiss through preliminary objections, arguing that the legislative act intruded upon the Supreme Court’s exclusive authority to regulate attorney conduct involving the practice of law. The trial court agreed and dismissed the claims. On appeal, the Supreme Court found that the intent of the statute was to codify a method to compensate “victims of frivolous and abusive litigation, and therefore, has a strong remedial thrust” as opposed to usurping the role of the judicial system in policing attorney conduct. Additionally, the Court found that this was not an attempt to regulate attorney conduct, rather, this is a law of “general application.” Thanks to Matthew Care for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Mother Shut Out For Injury At Son's Football Game (NJ) August 7, 2012 < Back Share to: Sporting events are fertile grounds for injuries – not just to the participants but also to the parents, grandparents and coaches who attend. These injuries sometimes result in suits against youth leagues and public entities who run and host the events. However, there are strong defenses to these suits on behalf of both the leagues and the public entities. In Kenny v. Bridgewater Golden Eagles, the plaintiff mother of a flag football player sued the league and town when she fell while walking down an embankment between two fields. She was assigned to volunteer at the snack bar located at the bottom of the embankment and was on her way to her shift when she slipped on dewy grass. She could have avoided the embankment by walking around the field, but chose the shortest route. Significantly, the town council and the New Jersey Department of Environmental Protection had approved the design of the recreational facility in 1977. The original plans included the embankment area. The facility was built as designed, and no changes were made to the grading anytime thereafter. In all of the years that the fields had been in use, there had been no other prior injuries on the embankment. The town had the documentation to show that it was entitled to immunity for the suit based upon the public body’s approval of the design that was built as approved. N.J.S.A. 59:4-6(a) offers plan and design immunity under these circumstances. The Appellate Division affirmed that once the design immunity attached, there could be no basis for liability against the town. Likewise, the plaintiff had no recourse against the league since she could not sustain the basic elements of a claim for negligence. Specifically, the league had no duty of care with the respect to the grading of the park. The league did not own, design, construct, maintain, or control the park. It merely was permitted to use it during the fall. As a matter of fairness and public policy, the court refused to impose a duty under these circumstances. Although the league also raised the Charitable Immunity Act as a further defense, the court did not reach that argument after finding no possibility for liability against it. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Stockpiled Materials Cemented Defendants’ Dismissal (NY) August 3, 2018 < Back Share to: In Kusayev v. Sussex Apts. Assoc., LLC the Appellate Division, Second Department, ruled that a delivery truck driver who fell while using a hand truck loaded with boxes of tile and quick cement, causing the material to land on him, was not entitled to strict liability recovery under Labor Law 240(1) and 241(6) against the building owner because he was neither engaged in construction work nor working in a construction area within the meaning of the statutes. Plaintiff alleged that he was injured while delivering construction materials to an apartment building owned by defendant Sussex Apartments after pulling the hand truck he had loaded high with tile and quick cement up a single step to the entrance of the property. Plaintiff lost his balance, falling to the ground with the items on the hand truck landing on top of him. He commenced an action pursuant to Labor Law 200, 240(1) and 241(6) against Sussex as property owner. Sussex moved for summary judgment, which was granted by the lower court. With respect to Labor Law 240(1) and 241(6), Sussex was entitled to dismissal because plaintiff was not engaged in construction work within the meaning of 240(1) and was not working in a construction area within the meaning of 241(6) since the building materials on the hand truck were not being “readied for immediate use” but rather were being “stockpiled for future use”. The Labor Law 200 claims were also dismissed because Sussex demonstrated that it did not create or have actual or constructive notice of the alleged condition which caused the plaintiff's injury, and that it did not supervise or control the means and methods of the plaintiff's work. As the alleged accident involved defects in both the premises and the equipment at the work site, Sussex was obligated to submit sufficient proof to satisfy both liability standards, which the Court determined it did. The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the property owner. Thanks to Lauren Tarangelo for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Mode-Of-Operation Warrants Special Jury Interrogatory (NJ) April 13, 2016 < Back Share to: We have often reported on the evolving "mode-of-operation" jurisprudence in which a plaintiff is relieved of proving notice of a condition on premises where a self-serve business is conducted. The appeal of this theory to plaintiffs is only too obvious. Hence, the issue frequently is addressed in slip and fall actions with creative arguments of how the business operation justifies its application. In the past year, the New Jersey Supreme Court reiterated that it should be limited to self-serve situations. See Prioleau v. Kentucky Fried Chicken, Inc. This was followed by an appellate case in which the Court held the line on the doctrine in the face of a leaking milk carton in a grocery store. See Novik v. Glass Gardens, Inc. However, recently, the appellate division found that a mode of operation charge should have been given in Walker v. Costco Wholesale Warehouse. In Walker, the plaintiff described slipping on a white "yogurt based product" substance while walking down an aisle of Costco. At trial, he testified that there had been a cheesecake sample stand somewhere in the vicinity - although he could not say just how close it was to his fall location. One store representative testified that although most people eat the bite size pieces whole, some including children may drop the food to the floor. Although the plaintiff did not expressly connect the yogurt substance to the cheesecake samples, the appellate division felt there was sufficient connection to warrant a mode-of-operation charge. However, in a new twist, it called for a special interrogatory to have the jury "make a predicate factual determination of whether the substance on which plaintiff slipped came form a food sample offered to customers at a stand within the store." Since the underlying case had resulted in a no cause on general negligence principles, the court held that the re-trial would be limited strictly to the mode-of-operation theory. Only if the jury found the requisite nexus to the food sample, would they consider liability further with respect to the rebuttable presumption of notice. Costco would then have to establish that it took reasonable steps to ensure the safety of its invitees under the circumstances. This case presents the intriguing potential for special interrogatories to establish correct application of the doctrine. The Walker plaintiff could not definitively state he fell on cheesecake, yet the court found his testimony sufficient to raise a fact issue for the jury. It would be wise for defendants to request a special interrogatory to focus the jury's deliberations when faced with similar circumstances of an unidentified substance. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Plaintiff's Improper Use Of A Supplemental Bill Of Particulars And Punitive Damages Thwarted March 6, 2008 < Back Share to: On the eve of trial in the personal injury action Kraycar v. Monahan, plaintiff successfully moved for leave to serve a supplemental bill of particulars and for leave to serve an amended complaint seeking punitive damages. The Appellate Division, Second Department reversed since plaintiff improperly sought to introduce only new injuries with the supplemental bill of particulars. Moreover, since it was not established that defendant's actions were willful or wanton negligence, plaintiff's added claim for punitive damages was without merit, equally warranting a denial of that branch of his motion. http://www.nycourts.gov/reporter/3dseries/2008/2008_01923.htm Previous Next Contact

News Pink Slime: Cause for Concern for Product Recall Underwriters? March 31, 2012 < Back Share to: Pink slime is all over the news these days. It is the derogatory term for "meat product made by processing leftover beef trimmings." In other words, it's meat filler made from leftovers with the addition of amonia. It sure doesn't sound very tasty, but it's been in use for more than 20 years. Public concerns about its safety have led some stores to offer free refunds/recalls. A claim to the insurers of those stores or suppliers cannot be far behind. It also makes you think that maybe you want to stick with lamb or chicken for Easter or Passover dinner... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NY Appellate Division Denies Insurer's Claim For Rescission September 22, 2009 < Back Share to: There is an old saying that "tough cases make bad law." In the insurance litgation context, this truism is reflected in the reluctance of courts to deny liability coverage where they believe it would be unfair or inequitable. In Barkan v. New York School Ins. Reciprocal, the Appellate Division, Second Department, denied the insurer's cross motion for summary judgment seeking to void its two policies ab initio based on an alleged misrepresentation in an earlier renewal application. The action underlying Barkan was notorious on Long Island because it involved the alleged misappropriation of $11,000,000 from a wealthy school district by several of its employees. In response, the school district sued several former board members for negligence and breach of their fiduciary duties. The district's insurer denied coverage to the former board members based on, among other reasons, the failure of the district to disclose in an earlier renewal application the misappropriations by a former employee in the district's business office. Several board members sued the insurer for coverage. The insurer responded by counterclaiming for rescission based on the district's failure to disclose the earlier theft and commenced a third party action against other board members seeking a declaration that it had no duty to defend or indemnify them either. Motions for summary judgment were filed by the parties and the lower court found in favor of the board members. The Appellate Division affirmed, holding that the insurer failed to meet its evidentiary burden on the issue of rescission. In order to rescind a liability policy, the insurer must demonstrate that the insured made a "material" misrepresentation. If proven, the policy is considered void ab initio. To meet its burden the insurer must present documentary evidence concerning its underwriting practices such as manuals, bulletins and rules relating to similar risks, which show that the policy would not have been underwritten in the same manner if the true facts were known. In this case, the insurer apparently relied exclusively on the affidavit from one of its underwriters without any documentary support whatsoever. The court rejected this proof and upheld the ruling that the insurer had, at a minimum, a duty to defend the board members against the claims made by the school district itself. In our experience, courts are very reluctant to rescind a policy based on an alleged misrepresentation. In evaluating the strength of such a policy defense, an insurer and its counsel must support their claims with compelling documentary proof. The naked affidavit of an underwriter will generally not win this battle, particularly where the individuals seeking coverage may not have been directly involved in submitting the allegedly false information. If you would like more information on this post, please contact Paul at pclark@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06494.htm Previous Next Contact

News Ready to Disclaim? Not so fast ... First Department Issues Important Coverage Decision (NY) January 11, 2012 < Back Share to: The Appellate Division, First Department, recently dealt with an issue involving a lawyers’ professional liability policy that could have a wide ranging impact on all insurance coverage disputes. In K2 Investment Group, LLC, et al. v. American Guarantee & Liability Insurance Company, the court, in essence, ruled that the insurer did not have a right to litigate facts in a declaratory judgment action that pertained to its duty to indemnify when the insurer denied coverage at the outset of the litigation of the underlying action and a default judgment was entered against the insured. Plaintiffs, a group of lending companies, claimed that the insured, Jeffrey Daniels, failed to record mortgages securing a loan that plaintiffs made to Daniels’ company. The insurer denied coverage under its professional liability policy based on a policy exclusion that barred coverage for losses arising out of Daniels’ acts for a business enterprise in which he had a controlling interest. The insurer contended that Daniels’ liability arose out of his actions to obtain a loan for his own company. The policy also excluded claims arising out of Daniels’ status as a shareholder of a business enterprise. Generally, the position of the insurer was that Daniels was not acting as plaintiffs’ attorney, but rather in furtherance of his own company -- acts that were excluded from the malpractice policy. When the insurer failed to pick up Daniels' defense, the insured defaulted and assigned his rights under the policy to the plaintiffs, who then commenced a declaratory judgment action against the insurer seeking the judgment amount. Plaintiffs then moved for summary judgment, which the trial Court granted. On appeal, the Appellate Division majority found that the exclusions did not apply because, according to the allegations in the complaint, the insured’s liability did not arise out of his ownership interest in his company but instead in his role as attorney to the plaintiffs/lenders. The insurer argued that there was an issue of fact in respect of this issue. But the Court held that the insurance company did not have a right to litigate this factual issue in the declaratory judgment action because a default judgment had already been entered in the underlying suit due to the insurer’s failure to defend Daniels in the underlying action. The two dissenting judges argued that the insurer’s duty to indemnify is based on a determination of all applicable facts and because the issue was not litigated in the underlying action, the insurer was entitled to litigate the issue in the DJ action. If this decision stands and is given precedent on this issue, it could impact the way insurers handle disclaimers on the issue of indemnity. Without sufficient factual proof to withstand a motion for summary judgment at the outset, insurers may need to reserve their rights and wait until underlying lawsuits develop before being able to issue effective indemnity disclaimers. Otherwise, they risk a default being entered in the underlying action and may lose their only opportunity to establish factual support for their coverage positions. Thanks to Mendel Simon for his contribution to this post. If you would like further information, please write to Mike Bono at mbono@wcmlaw.com .     Previous Next Contact

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 No Vacancy: Structures on Property Can Disqualify Coverage (PA) March 19, 2021 < Back Share to: In a recent Western District of Pennsylvania case, Morton v. Gardner, the court addressed what constituted vacant land under the insurance policy at issue. By way of background, after a dead tree on the defendant’s property fell onto the plaintiff’s vehicle, an issue arose as to whether the defendant’s insurer was required to pay for the damage. At the time of the incident, the property was not being used by the defendant and had not been used in many years – the only buildings on the property were five dilapidated structures that were essentially abandoned by the defendant. The defendant, a citizen of Georgia who had inherited the land, argued that since he did not use or actively maintain the property, it was essentially vacant and therefore covered under his insurance policy, which expressly covered vacant land as an insured location. However, the WDPA disagreed. Looking to Pennsylvania property law, as well as various definitions of the word “vacant” and prior case history, the court determined that the structures in place on the parcel of land rendered the land not vacant. The court was unpersuaded by the argument that the structures were abandoned and unoccupied themselves, distinguishing that the vacancy of the land had nothing to do with the status of the structures on the land. The court further held that the word “vacant” was not ambiguous and should not be construed as such. Based on this analysis, the court held that the insurer did not owe coverage to the defendant-insured, thus, creating an important distinction between vacant land and unoccupied property – in that, in order to constitute vacant land, there cannot be structures located on the land. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News WCM Is Pleased To Introduce Our 2022 Summer Associates July 7, 2022 < Back Share to: New Jersey Ryan Dame is a rising 3L at Brooklyn Law School who will graduate early in December 2022 as part of the accelerated program. Ryan is a graduate of the University of California, San Diego with a degree in political science. Prior to joining WCM, Ryan served our country as a member of the United States Marine Corp. where Ryan was a collateral duty quality assurance representative and a master training specialist. Most recently, Ryan interned with ECPAT-USA and for a civil judge in Supreme Court of the State of New York, Kings County. Steve Kaufman is a rising 3L at Cardozo School of Law and a graduate of the University of Miami where Steve earned a degree in history with a minor in entrepreneurship. Prior to joining WCM, Steve interned for a civil judge in Supreme Court of the State of New York, Suffolk County and interned with a commercial law firm with a focus on domain transfers and securities regulation. Steve also dabbled in the music industry during his undergraduate years. New York Sara Cardamone is a rising 3L at St. John’s University School of Law and a graduate of the University of Pittsburgh with a degree in communication and sociology. Prior to joining WCM, Sara interned for a civil judge in Supreme Court of the State of New York, New York County and interned with the New York State Division of Human Rights with a focus on assisting in the investigation of discrimination complaints. Andrew Henriquez is a rising 3L at St. John’s University School of Law and a graduate of Brown University with a degree in public policy and economics. Prior to joining WCM, Andrew participated in a variety of internships, including with the Office of the New York City Comptroller, Bureau of Law and Adjustment and also worked as an assistant paralegal at an immigration firm. Andrew has also volunteered with the Consumer Credit Court Observation Project and the New York City Community Emergency Response Team. Michelle Palagi is a rising 3L at Cardozo School of Law and a graduate of Baruch College with a degree in industrial/organizational psychology. Prior to joining WCM, Michelle interned with an employment law firm and the Orthodox Union and participated in a divorce mediation clinic. Michelle speaks many languages including Hebrew and Georgian. Mark Rodriguez is a rising 3L at Brooklyn Law School and a graduate of Siena College with a degree in history. Prior to joining WCM, Mark interned with a New York law firm with a focus on medical malpractice, sexual assault and personal injury cases and was a legal fellow with Touro Law Center. Mark is an avid Mets fan. Alexa Schimp is a rising 3L at St. John’s University School of Law and a graduate of The Catholic University of America with a degree in philosophy. Prior to joining WCM, Alexa was a legal extern for the Girls Scouts of America, interned with Legal Outreach and was a legal resource assistant for an intellectual property firm. Alexa is a literature buff with a focus on WWII/Holocaust history and also dabbles in experimental cooking. Brian Tully is a rising 3L at St. John’s University School of Law and a graduate of the University of Virginia. Prior to joining WCM, Brian participated in various judicial internships and externships, including with Surrogate’s Court – 10th District Nassau County and New York State Supreme Court, Nassau County. Pennsylvania Sydney Kockler is a rising 3L at Villanova University School of Law and a graduate of the University of Pittsburgh with a degree in political science and communication. Prior to joining WCM, Sydney participated in various internships and externships, including with the US Attorney’s Office for the Eastern District of Pennsylvania, the Pennsylvania Office of Attorney General, and Bravo with a focus on research-based blogs and developing social copy to accompany web posts for Facebook and Twitter. Jack McGuire is a rising 3L at Villanova University School of Law and a graduate of the University of Notre Dame with a degree in economics and minors in computing digital technology and public service. Jack also was selected for Notre Dame’s study abroad program and did a semester on Berlin, German. Jack’s vast interests include chess, juggling, basketball, soccer, badminton and volleyball. Prior to joining WCM, Jack interned with the US Bankruptcy Court for the Western District of Pennsylvania. Domenica Tomasetti is a rising 3L at Villanova University School of Law and a graduate of The Catholic University of America with a degree in political science with a minor in psychology. Prior to joining WCM, Domenica interned with one of the justices of the Delaware County Court of Common Pleas, was a legal research assistant for a Villanova professor and interned with the Office of the District Attorney in Delaware County. Domenica was also an assistant women’s basketball coach while at Catholic University. Previous Next Contact