Wade Clark Mulcahy LLP

News Property Owner Is At The Root Of The Problem, Not the City of New York October 22, 2021 < Back Share to: We present a case this week highlighting the liability of sidewalk maintenance between the City of New York and an abutting property owner. In Konstantinos Gallis v. 23-21 33 Rd., LLC, 2021 NY Slip Op 05549 (2d Dept. 2021), the plaintiff claimed personal injury after he tripped and fell on a raised part of sidewalk. The location of the fall was next to a tree owned by the City of New York. Plaintiff alleged the tree roots had raised the sidewalk allegedly causing the hazard. The premises owner 23-21 33 Road LLC defaulted on the Complaint, and plaintiff sought summary judgment on liability against the City of New York alleging the City allowed for the tree roots to grow and cause the hazard ultimately leading to plaintiff’s injury. The trial court denied the plaintiff’s motion and the Second Department affirmed that decision. The Second Department re-affirmed Administrative Code §7-210 and its precedent which shifts liability for defective sidewalk conditions from the City to the abutting property owner. Importantly, Administrative Code §7-210 covers any defects involving the negligent failure to repair or replace defective sidewalk flags, and failure to remove snow, dirt, or other materials from the sidewalk. The court determined the defective sidewalk conditions caused by growing tree roots is covered under Administrative Code §7-210 and noted an abutting property owner may cut or remove tree roots to repair sidewalks after obtaining permission from the City. Also important in the Second Department’s decision is that the exemption of Administrative Code §7-210 under subsection (b) allows for the City to be held liable if the property is “in whole or in part, owner occupied” and used for “exclusive residential purposes.” The reasoning behind this exemption is that the City should only be allowed to shift the burden of sidewalk defects to commercial properties and not “small residential properties” who would not have the resources for constant monitoring and repair of the sidewalk. This case highlights the specific variables wherein the City of New York can and cannot be held liable for any sidewalk defect or defect caused by inclement weather abutting a property owner’s building under almost any circumstances. The liability for a defect on the sidewalk is almost always shifted to the abutting property owner, and the caveat exception would apply to residential properties which are at least in part owner occupied. Thus, any commercial property owner should constantly monitor their sidewalks, and in the event of a defect caused by a tree, they should immediately contact the City of New York for permission to rectify the defect. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News Plead it or Lose it: Failure to Plead Defamatory Statements Warranted Dismissal. January 28, 2013 < Back Share to: In Abakporo v. Daily News, et al., plaintiff sued the Daily News for two newspaper articles he alleged contained defamatory statements against him. He also sued for misappropriation of his image pursuant to Civil Rights Law §50. Though plaintiff annexed the articles to his complaint, his failure to specifically identify the defamatory statements was fatal to his claim. With respect to the Civil Rights Law, plaintiff failed to adequately allege facts to establish that the photograph accompanying the articles was used for advertising or trade purposes. Due to plaintiff’s pleading deficiencies, the Second Department affirmed the dismissal of his case. In evaluating a pre-answer motion to dismiss, courts will liberally apply the facts as alleged in the complaint. Where a party fails to allege defamatory statements in a defamation complaint, there can be no liberal application of the facts. As such, in evaluating defamation claims, the first inquiry must always be whether the complaint was appropriately pled, and whether a pre-answer motion to dismiss is feasible. For more information about this case, please contact Cheryl at cfuchs@wcmlaw.com .     Previous Next Contact

News Damages Award for Meat Slicer Injury Modestly "Sliced" By Comparative Fault (PA) November 4, 2010 < Back Share to: A delivery person injured by the blade of a disassembled meat slicer recently received over $1.5 million from a Pennsylvania jury. In Fuller v. Easton Healthcare Services Group, Plaintiff, a delivery person for a knife-sharpening and appliance service, was picking up a meat slicer that had been loaned to the Easton Health & Rehabilitation Center. When Plaintiff arrived to retrieve the loaner slicer, an employee of Healthcare Services Group loaded the disassembled slicer onto a cart and wheeled the cart to Plaintiff’s delivery van. As a result of the slicer’s disassembly, the blade guard to the slicer had been removed and placed on a lower shelf of the cart, underneath the slicer itself. Subsequently, the employee lost his balance while attempting to load the slicer into Plaintiff’s delivery van, and in her effort to assist the employee, Plaintiff reached over top of the slicer and lacerated her right forearm, severing nine tendons, an artery, and two nerves. She underwent emergency surgery to reattach the severed nerves and tendons, as well as re-establish blood flow to the severed artery. Despite physical therapy, Plaintiff needed multiple surgeries to remove nerves from her ankle and implant them into her hand, an index finger amputation, and a fusion of her thumb. Plaintiff sued Healthcare Services Group alleging that the removal of the blade guard from the slicer, the failure to reassemble the slicer, and the assumption that Plaintiff would notice that the slicer was not reassembled created an unsafe condition that could foreseeably cause harm. Healthcare Services Group countered that, because it was Plaintiff’s job to retrieve the slicer, defendant was not responsible for placing the blade guard on the slicer, and that Plaintiff’s failure to notice that the blade guard was missing rendered her contributorily negligent. Ultimately, the jury found that Plaintiff was 13% liable and Healthcare Services Group was 87% liable. Thus, Plaintiff’s damages, which included medical costs, lost earnings, pain and suffering, and a loss of consortium claim by her husband, were only reduced from $1,868,987.25 to $1,627,318.91. As such, the jury obviously felt the defendant's handling of the meat slicer was the issue, as opposed to plaintiff's mishandling. This case present the danger of a defense strategy of placing all the blame on a likely sympathetic plaintiff. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Broken Real Estate Contract not Deemed a "Pending Claim" Against Law Firm June 3, 2009 < Back Share to: When applying for a professional indemnity policy, a typical question asks the applicant whether it is aware of any legal work performed that might lead to a claim against the law firm. Recently, in United National v. Granoff Walker & Forlenza, P.C., a New York federal court held that there was no duty of a law firm to answer this question in the affirmative despite the fact that the firm worked on a real estate transaction that ended unfavorably for its client. In the underlying case, GWF represented a client in a real estate transaction. The contract contained a mortgage contingency clause, which permitted the client 30 days to secure a mortgage commitment. The client told GWF that he intended to pay in cash for the purchase; the attorney relayed this information to the seller; the 30 days expired; and the seller cancelled the transaction. The seller’s right to cancel was ultimately upheld on appeal, and the client sued GWF for malpractice in not advising him of the consequences of the contingency clause. When GWF applied for insurance coverage, it answered “no” to the question regarding any potential claims. At that point, the real estate contract had already been cancelled, and a trial level court had already ruled against the client; but the matter was still on appeal. After the appeal was denied, GWF’s client told them they intended to file a malpractice claim. GWF then notified its professional indemnity carrier, United National, who disclaimed coverage on the basis that GWF knew about the cancelled contract when it applied for coverage. The court cited to a number of facts, including the point that GWF reviewed the clause with its client, who was a sophisticated real estate purchaser, and said a reasonable attorney would not have foreseen that the client would assert a malpractice claim. The court cited the “heavy burden” that an insurance carrier needs to establish in disclaiming coverage based on a prior knowledge exception, and indicated an attorney only needs to answer the question in the affirmative when the matters involve a “clear breach of duty, such as the failure to comply with the statute of limitations, attorney neglect, criticism by the court or disciplinary proceeding, or explicit threats of litigation.” Previous Next Contact

News Pennsylvania Law Stands Firm: Unlicensed Driver Exclusion Rejected For Medical Expense Coverage December 15, 2023 < Back Share to: Insurance policies often contain exclusion clauses designed to mitigate risks, yet the treatment of unlicensed drivers within these agreements remains a contentious issue. In particular, the denial of coverage for accidents involving unlicensed drivers has sparked legal debates across various states. The Superior Court of Pennsylvania held in Nationwide v. Castaneda that for the purposes of first-party medical expense benefits, unlicensed driver exclusions may not apply under Pennsylvania law. Nationwide Prop. & Cas. Ins. Co. v. Castaneda, 2023 PA Super 253, 2023 WL 8391516 (Dec. 5, 2023). In the underlying case, the daughter of the insured, with her mother’s permission but without a valid license, was rear-ended while operating her mother’s car. The daughter subsequently sustained severe injuries. The mother, under her auto policy, submitted a claim for first party medical expense benefits, which Nationwide denied under the policy’s “unlicensed driver exclusion”. The trial court agreed no coverage was owed. On appeal, the insured argued that even if the exclusion as written applied, the Motor Vehicle Financial Responsibility Law (“MVFRL”) made the exclusion invalid for the purposes of first party medical expense benefits . The Superior Court agreed. Citing to Section 1711 of the MVFRL, the court noted that it “specifically mandates that policyholders purchase, and insurers provide coverage for, first party medical expenses for injuries arising from the use of a motor vehicle”. Castaneda at 4. In other words, medical coverage was explicitly listed as the single benefit under Section 1711 that was to be considered a “Required Benefit”. The Court then dug into the intent of the General Assembly and remarked that by making medical expense coverage mandatory under the law, it was clearly intended to be treated differently from other first party benefit coverage. As the final nail in the coffin, the court cited to Section 1718 of the MVRFL, which sets out an enumerated list of limited circumstances when the insurer may exclude someone from the benefits of medical expense coverage. As an “unlicensed driver” exclusion was not part of the enumerated list written by the legislature, it could not be used as a means of denying “otherwise mandated coverage for first party medical benefits”. Id. at 6. The Court noted that if insurers could add to the statutory list of exclusions to deny coverage, the mandate would unreasonably be diluted to the point of losing its effect. In conclusion, because the insured’s medical expense claim did not fall under one of the limited exclusions set forth in Section 1718, Nationwide did not have a valid exclusion to rely on to refuse coverage in this limited context. The Superior Court was clear that their conclusion was to be read strictly within the confines of claims made for first party medical expense benefits. Insurers may still exclude benefits if injury arises out of intentional action by the insured, or other enumerated reasons set forth in 1718. Nationwide Property and Casualty Insurance Company v. Castaneda .pdf Download PDF • 195KB Previous Next Contact

News NY Court Holds Indemnification Provision Not Transferable June 10, 2010 < Back Share to: In Tavella v. Skanska USA, Inc, the plaintiff, employed by third-party defendant Koehler Masonry, was injured during the course of his work on a construction project. Third-party plaintiffs Hazen and Sawyer brought a third-party complaint against Koehler, a subcontractor on the project, based on contractual indemnification. Koehler moved to dismiss the third-party complaint because the indemnification provision cited by Hazen and Sawyer specifically stated that it applied only to the City of New York and Pegno/Tully, the prime contractor that hired Koehler to work on the project. Hazen and Sawyer argued that they were entitled to indemnification from Koehler because Koehler assumed Pegno/Tully's obligations under the contract, including Pegno/Tully's obligations to indemnify Hazen and Sawyer. The Supreme Court, Kings County granted Koehler's motion based on the fact that Koehler agreed to only indemnify Pegno/Tully and the City of New York. Moreover, the court held that the language in the subcontract which required Koehler to assume the duties that Pegno/Tully assumed was a general provision related to detail of the work. The indemnification provision was specific and it applied to only those contractors and entities named in the subcontract. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20206.htm Previous Next Contact

D.J. Dawson Partner Pennsylvania ddawson@wcmlaw.com 267.946.2473 Professional Experience A self-described zealous advocate for his clients and competent trial attorney, Partner D.J. Dawson handles cases in State and Federal Court. D.J. litigates a multitude of matters, including, but not limited to, premises liability, products liability, directors and officers, commercial motor vehicle liability, employment, dram shop, negligent security, wrongful death, and cases involving complex and significant exposer to insureds. D.J. is an experienced in-house defense counsel handling claims from inception to trial in Federal and State Courts. His work as a litigator in over 500 arbitrations and 36 trials resulted in defense verdicts and extremely favorable outcomes for his clients. His experience ranges from analyzing litigation risk, conducting expert depositions, negotiating settlements, engaging in extensive motion practice, pursuing post-trial advocacy, and being a trusted resource for Complex Claims Specialists. Before joining WCM, D.J. was a Senior Attorney in Chubb’s Casualty Practice Group of the Philadelphia House Counsel firm of Bunker & Ray. Prior to joining Chubb’s House Counsel, D.J. served as in-house counsel for GEICO for several years. Honors and Distinctions D.J. volunteers his professional expertise sitting as an Arbitrator and Judge Pro Temp for the U.S. District Court of Eastern Pennsylvania, Philadelphia Court of Common Pleas, and the Chester County Court of Common Pleas. D.J. also sits as a judge at New York Law School Moot Court Competition and the Dispute Resolution Team Negotiation Competitions annually. D.J. also volunteers as a guest lecturer at West Chester University’s School of Business. While in law school, D.J. clerked for the Honorable Louis B. York, New York Supreme Court, Manhattan Civil Division. D.J. also competed for New York Law School’s Dispute Resolution Team. D.J. received upon graduation certifications in Alternative Dispute Resolution and Pro Bono Advocacy. Professional Activities D.J. believes learning is a lifelong endeavor, and recently completed a certification in Artificial Intelligence Essentials for Business at Harvard University Business School. Outside of his professional work, D.J. is the current President of Springdell Village Homeowner’s Association, Vice President of Parcel 1 Land Trust, and Trustee of Berkshire Lakes Master Association. D.J. also serves as a Board Member of the American Helicopter Museum. D.J. is a member of both the American Civil Liberties Union, American Bar Association, Philadelphia Bar Association, Chester County Bar Association and The Metropolitan Black Bar. D.J. is a student of Kung Fu (Northern Shaolin Tien Shan Pai and Wing Chun), and an avid cyclist who has raised money for multiple charities, including the American Cancer Society, Bike M.S., Eagles Autism, and Stand up for Cancer. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., New York Law School B.S. West Chester University Certification, Harvard University Business School Bar Admissions Pennsylvania Court Admissions United States District Court for the Eastern District of Pennsylvania United States District Court for the Middle District of Pennsylvania United States District Court for the Western District of Pennsylvania Supreme Court of the United States of America

News To Repair or Replace: Damages for Replacement Costs Upheld (PA) October 12, 2017 < Back Share to: The Pennsylvania Superior Court recently affirmed a damages award that came under appeal after defendants argued that it was not supported by competent evidence. In 700 EBA v. Weaver's Glass & Building, No. 1868 MDA 2016, defendants Weaver’s Glass & Building Specialties, Inc. appealed the amount of the damages awarded by the trial court in the underlying non-jury trial, which involved a dispute between Weaver and plaintiffs 700 EBA, LLC, after 700 EBA hired Weaver to furnish and install several windows in one of 700 EBA’s buildings. After installation, 700 EBA discovered that a majority of windows contained “major window failure” and permitted water to penetrate into the building during periods of heavy rain. Subsequently, 700 EBA sued Weaver for breach of contract for improperly installing the windows. Following a bench trial, the trial court ruled in favor of 700 EBA and awarded $67,420.25 in damages, which included the cost of replacing the windows. Weaver appealed the damages award on the grounds that replacement of the windows was not necessary, and that the problem could be resolved by simply repairing the existing windows, which would cost less than replacing the existing windows with brand new ones. As evidence in support of their appeal, Weaver cited 700 EBA’s expert testimony that replacement of the windows was not necessary. On appeal, the court articulated the standard of review applied to challenges of a non-jury verdict – whether the findings of fact of the trial court are supported by competent evidence and whether the trial court committed error in application of the law. The trial judge’s findings of fact must be given the same weight as if they were found by a jury, however the appellate court has plenary review power to address questions of law. As to the specific issue of damages, the appellate court stated that the evidence must be considered in the light most favorable to the trial verdict winner, and that appellate courts should defer to the trial court on decisions regarding damages. In reviewing the award, the appellate court cited an expert report from the window manufacturer that stated that the existing window frames should be removed, as well as expert testimony from a building remediation company and a building consultant who testified that the windows should be replaced. Additionally, the court cited expert testimony that opined that the plan to replace rather than repair the windows was reasonable, as was the quoted cost estimate. Thus, the Superior Court ultimately ruled that the trial court did not err in its damages award based on the replacement costs of the windows, and affirmed the award. This case offers aclear articulation of the standard of review applied by an appellate court when reviewing a damages award, and illustrates the heightened burden that an appellant must carry. THanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News No Fault? No Problem (NJ) June 13, 2019 < Back Share to: In Liberty v. Penske, the New Jersey Superior Court was asked to address whether: New Jersey’s No-Fault Act, N.J.S.A. 39:6A-9.1 compels arbitration when there is a disputed question of fact regarding whether a party is a tortfeasor. By way of background, in October 2016, a tractor trailer being operated by a CEVA employee collided with a pickup truck driven by Eugene Jerinsky in New Jersey. Jerinsky was injured as a result of the accident and subsequently obtained no fault benefits through Liberty Mutual, his insurance company. After all was said and done, Liberty Mutual requested that Ceva, who was self-insured at the time of the accident, reimburse the claim because its employee was at fault. Ceva declined and then Liberty Mutual requested an arbitration to arbitrate the reimbursement claim. Ceva again declined. In September 2017, Liberty Mutual filed suit against Ceva. The main issue being whether the reimbursement claim should be heard by an arbitrator or a judge and jury. The lower court ruled in favor of Ceva, stating that a judge or jury had to first determine the employee’s fault before an arbitrator could hear a reimbursement claim. The appeals court disagreed. The court held that arbitrators can determine issues of fact. It stated that whether or not the Ceva employee was at fault involved a factual question of negligence. In the end Liberty Mutual was allowed to arbitrate the claim. Long story short, this is a win for insurance companies in the State of New Jersey looking to arbitrate PIP reimbursement claims. Thank you to Marc Schauer for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Private Land + Public Recreational Use = Immunity (NJ) January 21, 2016 < Back Share to: New Jersey’s Landowners’ Liability Act (“LLA”) provides immunity from certain liability suits to property owners whose land is open for the public’s use and enjoyment along the state’s waterfronts. See N.J.S.A. § 2A:42A. The LLA is New Jersey’s version of a recreation use statue (“RUS”) intended to encourage property owners to provide free public access for outdoor activities such as hunting, fishing, hiking and even simply walking in a waterfront park. Although initially designed to provide incentive to owners of agricultural lands and woodlands to open up their lands to the public without fear of liability, the Act was broadened in 1991 to extend more generally to “premises” on both natural and improved property, even if part of a “commercial enterprise.” In Fujino Niiya v. Grand Cove Master Association, Inc., a condominium association sought immunity in litigation for personal injuries by a woman who tripped and fell on an uneven paver along a walkway adjacent to the Hudson River. Considered a part of New Jersey’s tidal waterways and its shores, the complex was obligated by regulations to maintain 24-hour public access to the riverside walkway. See N.J.A.C. § 7:7E-3:48(e). The Association’s Board President testified that he personally walked on the sidewalk and premises multiple times every day to ensure the public’s safety. The plaintiff testified that it “was a beautiful day,” so she decided to “take a little walk” with her granddaughter along the walkway by the river. In granting summary judgment, the motion judge noted that this was “precisely the situation contemplated by the Legislature” in enacting the LLA. The plaintiff had access to the walkway along the river because of the laws and regulations opening up otherwise private spaces to the public. However, “a critical aspect of that public policy” was “to limit the liability of private developers who provide and maintain access for the public to enjoy the land abutting the Hudson River.” The LLA is a little referenced immunity that offers protection to property owners who provide recreational opportunities to the public. In this case, the judge recognized the policy of encouraging the public enjoyment of such private lands is well-served by enforcing its application. Thanks to Ann-Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News The Sidewalks are Narrowing in New York August 31, 2009 < Back Share to: New York City's "Sidewalk Law" of 2003 famously imposed on landowners the obligation to repair sidewalk defects and to clean up snow and ice or face the wrath of the plaintiff passers-by who populate our fair city. In recent years, the courts have refined the definition of sidewalk to exclude curbstones and tree wells. Now, an appellate court in Manhattan has further restricted the area that must be repaired and maintained by the adjacent landowner. The court ruled last week that the pedestrian ramps that are carved into the sidewalks at most intersections are not part of the sidewalk for purposes of the Sidewalk Law. Specifically, in Ortiz v. City of New York, plaintiff, who tripped and fell in a hole at the edge of a sidewalk pedestrian ramp, sued the City of New York and the abutting property owner and managing agent. In moving for summary judgment, the City contended that it had not received prior written notice of the defect and that, in any event, it was not liable under Admin Code §7-210 (the abutting owner liability ordinance). The abutting owner and managing agent cross-moved for summary judgment, contending that a corner pedestrian ramp was not within the meaning of the term “sidewalk” as used in Admin Code §7-210. In opposition, plaintiff submitted the affidavit of an expert, who stated that there was a height differential of 1½ to 2 inches between the base of the ramp and the street due to the absence of a protective curb, and that the City improperly paved the street next to the ramp. The Supreme Court, New York County, denied the City's motion, finding issues of fact as to whether the City created the defect when it repaved the street. The trial court also denied the owner and agent's motions, holding that the pedestrian ramp was part of the sidewalk pursuant to Admin Code §7-210. On appeal, the Appellate Division, First Department, stated that Admin Code §7-210 must be strictly construed. Therefore, if the City intended to shift liability for accidents on pedestrian ramps, the City needed to use specific and clear language in the Code to accomplish this goal. Finding no such language, the Appellate Division ruled that the abutting landowner's liability does not extend to corner pedestrian ramps. The Appellate Division reversed the lower court's ruling and dismissed the complaint and cross-claims against the landowner and managing agent. The lower court's ruling as to the City was affirmed. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06299.htm Previous Next Contact

News NJ Supreme Court Rejects Harassment Suit: "Just Say No" August 14, 2008 < Back Share to: In a rare victory for the defense in an action for sexual harassment, the New Jersey Supreme Court affirmed the dismissal of a case brought by two female students against the Princton Theological Seminary. The students alleged that they were harassed by an older alumnus of and contributor to the Seminary who resided in close proximity to the campus. In ruling against the students, the Supreme Court emphasized that the pair failed to demonstrate that they were victims of "severe and pervasive" harassing conduct. Further, in evaluating whether this burden was met, it stressed that the offending conduct should be measured against "a reasonable person" standard, not the subjective effect of the actions on a given plaintiff. But the most encouraging part of the opinon was the court's reliance on good, old fashioned common sense. With no legal citation given or required, the court noted: "it is important in that regard that neither of these women used her own authority to tell Miller to 'go away.' They cannot rely on the prospect of a money damages award from the Seminary to replace their own obligation to simply tell Miller that they had no interest in him romantically or even as a casual acquaintance." Well said. http://lawlibrary.rutgers.edu/decisions/supreme/a-64-07.opn.html Previous Next Contact