Wade Clark Mulcahy LLP

News WCM Obtains Defense Verdict in New York Labor Law Case. April 4, 2016 < Back Share to: Counsel Georgia Coats obtained a defense verdict in New York County on a Labor Law case. In Scekic v. Structure Tone, et. al., the plaintiff, our client’s employee, was ordered by the general contractor to raise a pipe previously installed by the plaintiff on the 1st floor of a clothing store, located along the 20 foot ceiling. Our client’s work was previously completed on the 1st floor and the only work left to be done was limited to the basement. The basement work did not require ladders and, accordingly, our client had sent back all ladders and scaffolds to its warehouse. The plaintiff used a ladder belonging to another trade and subsequently fell from that ladder when it broke. Structure Tone, the general contractor, settled with the plaintiff and proceeded at trial against its alleged subcontractors, including our client, on its claims for contractual indemnification. To trigger our client’s indemnification provision, the parties had to prove that our client or the plaintiff were negligent. At trial, we argued that our client could not have foreseen that the plaintiff would have been ordered by the general contractor to perform work in an area of the building that had been completed and that its decision to remove all ladders, which were not needed to complete the basement work, was reasonable. We also argued that the plaintiff’s use of another trade’s ladder was done at the general contractor’s direction and that he could not have known that the ladder was defective through his inspection of the ladder. The jury quickly returned its verdict finding that our client and the plaintiff were not negligent. Previous Next Contact

News Storm in Progress? Snow Removal Contractor Has Reasonable Time to Respond in NY December 28, 2012 < Back Share to: In the case of Espinal v. Melville Snow Contractors, 98 NY2d 136, 142-143, the New York State Court of Appeals, held that a snow removal contractor does not owe a duty of care to third-parties. However, in the years since the holding in Espinal, the trial courts have made it more difficult for a snow removal contractor to win summary judgement. In the case of Eugenia Smilowitz v. GCA Services Group, the Supreme Court, Queens County got it right. The plaintiff, an employee of St. Johns slipped and fell on snow and ice on the St. Johns campus. The defendant, GCA was responsible for maintaining the grounds, including snow removal. GCA moved for summary judgment, arguing that under the "storm and progress rule" a snow removal contractor cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. In opposition, the plaintiff tendered no evidence that GCA fell into any of the Espinal exceptions. More specifically. the plaintiff failed to prove that GCA created or exacerbated the icy condition that she slipped on. The Appellate Division, Second Department upheld the lower court's decision, holding that merely undertaking snow removal duties, as required by contract, cannot be said to have created or exacerbated a dangerous condition. Thanks to Ed Lomena for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited October 3, 2013 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Call Your Next Witness - Matthew McCann April 26, 2023 < Back Share to: On this episode of the Call Your Next Witness podcast, we welcome fellow attorney, Queens Native and Regis High School alum Matthew McCann. Matt’s practice areas have varied greatly over the years, spanning white collar criminal defense, securities litigation, land use, cannabis, Special Education, and appellate practice, now at Moss & Colella, P.C. in Southfield, Michigan. Matt’s career and practice areas have evolved and grown in ways he never would have predicted as a younger attorney. And of course, we spent some time discussing Matt’s other “practice area” -- Battle Rap –both in NYC and Detroit. Listen here: https://lnkd.in/e8NbgmSd This may be the first ever lawyer-centric battle rap #podcast ever recorded. #wcmlaw For more information about the podcast, email Brian Gibbons. Previous Next Contact

News Affidavit Of Merit Statute Eroded Further (NJ) April 15, 2022 < Back Share to: In Haviland v. Lourdes Medical Center of Burlington County, Inc., the plaintiff was injured after being instructed by an unlicensed radiology technician to hold weights while undergoing a radiological imaging examination. The plaintiff had undergone a left shoulder surgery shortly before the exam. The Plaintiff thereafter alleged that he sustained injuries as a result of holding the weights as directed during the exam. The plaintiff sued the medical center and its unidentified, unlicensed radiology technician. He claimed the radiology technician instructed plaintiff to hold weights contrary to the ordering physician’s instructions. He further alleged that the unnamed radiology technician negligently performed the radiology exam. At the trial court stage, the medical center successfully moved to dismiss the complaint because plaintiff failed to provide an affidavit of merit. By way of context, in New Jersey, an affidavit of merit authored by an expert in the relevant field is required to pursue to a professional malpractice claim. However, despite this clear statutory language, this requirement has been consistently eroded. Here, the Appellate Division reversed, holding that an affidavit of merit is not required when a plaintiff’s claim against a licensed entity (e.g. the licensed employer of an unlicensed person) is limited solely to vicarious liability of an unlicensed employee. Here, the Court examined the relevant statute, and held that the allegedly negligent employee did not qualify as a licensed person under the affidavit of merit statute. The Supreme Court affirmed, holding that the affidavit of merit statute does not require submission of an affidavit of merit to support a vicarious liability claim against a licensed health care facility based only on the conduct of its non-licensed employees. This case from the Supreme Court will undoubtedly make it easier for plaintiffs to sue professional companies when their non-professional, non-licensed employees do something negligent. Thanks to Mike Noblett for his contribution to this article. Should you wish to discuss, please feel free to contact Matthew Care. Previous Next Contact

News District of New Jersey Grants Insurer’s Motion to Dismiss, Finding Virus Exclusion Precluded Coverage November 13, 2020 < Back Share to: In N&S Restaurant LLC v. Cumberland Mutual Fire Insurance Company, the District of New Jersey ruled upon whether coverage under a businessowners policy for Covid-19 closures was precluded by the policy’s virus exclusion. By way of background, Plaintiff N&S Restaurant had a businessowners policy (“Policy”) with Defendant Cumberland Mutual. Due to the Covid-19 pandemic, an Executive Order was enacted requiring all non-essential businesses to close. N&S sought coverage under the “Business Income” provision, “Extra Expense” provision, and “Civil Authority” provision. The Policy afforded coverage for “direct physical loss of or damage to Covered Property … caused by or result[ing] from any Covered Cause of Loss.” The Policy defines a “Covered Cause of Loss” to be a “[d]irect physical loss unless the loss is excluded or limited.” The Policy included a virus exclusion which stated that Cumberland Mutual “will not pay for loss or damage caused directly or indirectly by” any “Virus or Bacteria” which is any “virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness, or disease.” Cumberland Mutual denied N&S coverage on the grounds that the virus exclusion precluded coverage and there was no physical loss or damage to the property. N&S then commenced an action seeking a declaration that N&S was afforded coverage under the Policy. Thereafter, Cumberland Mutual moved to dismiss N&S’s action. The Court centered its analysis around whether the virus exclusion precluded coverage. N&S contended that the virus exclusion is not applicable as it was the Governor’s Executive Order mandating the closure of all non-essential businesses that caused plaintiff’s loss, not the coronavirus. The Court rejected plaintiff’s argument, finding that Executive Order was brought upon by the coronavirus. Additionally, the Court noted that the virus exclusion included an anti-concurrent causation clause, which precluded coverage for any loss caused directly or indirectly by a virus. The Court further rejected Plaintiff’s reliance on New Jersey’s Appleman Rule, which holds that where a policy’s exclusion bars coverage for a specific peril, the exclusion applies only if the excluded peril “was the ‘efficient proximate cause’ of the loss. The Court held that the plain language of the virus exclusion was worded to eliminate the proximate cause doctrine. Accordingly, the Court granted Cumberland Mutual’s Motion to dismiss, holding that N&S was not entitled to coverage under the Policy as coverage is expressly precluded under the virus exclusion. This case is one of many declaratory judgment actions that have been filed in the wake of the Covid-19 pandemic. Given the novelty of this virus, it remains to be seen how courts in other jurisdictions will interpret popular policy exclusions, such as the virus exclusion, communicable disease exclusions, and pollution exclusions. Thanks to Rachel Thompson for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Proof of Planted Tree Alone Does Not Create a Dangerous Condition (NJ) November 24, 2021 < Back Share to: It is long established precedent in New Jersey that residential landowners do not owe a duty to maintain their sidewalks for the safety of pedestrians, but commercial landowners and commercial tenants usually are bestowed a duty to maintain sidewalks for the benefit of the public. Still, a residential landowner can be liable for a sidewalk defect if the residential owner creates or exacerbates a dangerous sidewalk condition. In Mondie v. Linton, the plaintiff, while walking her dog, tripped and fell on a raised sidewalk slab in front of defendants’ home in Barnegat, New Jersey. She sued the residential owners and claimed that the owners created the differential sidewalk condition and therefore could potentially be liable. The evidence revealed that the defendants had owned the house, constructed in 1989, and Plaintiff further identified a pear tree located a few feet from the sidewalk adjacent to the differential sidewalk slabs, The plaintiff, through an expert, claimed that the tree had been planted either by the defendant owners or the developer who constructed the home and who was the defendants’ predecessor in title. Defendants acknowledged the tree’s presence but denied they ever planted it. On appeal of the trial court’s dismissal of plaintiffs’ complaint on summary judgment, the appellate division held the plaintiff could not show that the defendants or the previous developer planted the tree despite some case law indicating that a residential property owner may be liable for injuries sustained by a pedestrian if it can be shown that the owner planted a tree where he or she “could readily foresee … the roots of the tree extending underneath the sidewalk causing it to be elevated.” Nonetheless, and despite relying on an expert report, the appellate division found that the plaintiff could not prevail because she should not show that the defendants or their predecessors in title affirmatively planted the tree which might have raised the sidewalk. Notably, the court took issue with plaintiff’s expert who did not consider the distance from the tree to the sidewalk, whether and how the roots spread in the area under the sidewalk slab, or any explanation for how the tree raised the sidewalk. Thus, summary judgment for the defendants was affirmed. In these types of cases, it is important for the defense to highlight the deficiencies of plaintiffs’ proofs in order to obtain summary judgment. Thanks to Mike Noblett for his contribution. If you have any questions, please contact Matthew Care. Previous Next Contact

News Time Is Not On Your Side! Policyholder’s Claim Dismissed As A Result Of “wear and tear” Damages Under Homeowner’s Insurance Policy (PA) December 17, 2021 < Back Share to: Recently, the Western District of PA, in Blanton v. State Farm Fire & Cas. Co., dismissed a claim of an insured homeowner who failed to claim the wear and tear damage to her home fell within the policy’s provisions. In Blanton, the policyholder suffered water damage to her home, alleging the damage was a result of water being trapped behind stucco. The water, over time, was trapped like a bubble, and the build up caused the damage to the home when released. While the policy specifically covered sudden and accidental damage from weather conditions, the insurer averred it did not cover damages over time, such as wear and tear, and deterioration. These additional damages were argued to be “resulting damages” and covered under the policy. Ultimately, State Farm moved to dismiss the complaint based on the fact that the policy did not cover “continuous exposure of water from the downspout” and the Court agreed with this analysis. Judicial review of this policy’s insuring agreement and exclusions provided no ambiguities, and the Court properly dismissed the policyholder’s vague, unsubstantiated claims of a covered loss. Thanks to Kevin Riley for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News What Does the Lease Say? (NY) June 18, 2020 < Back Share to: In Mallet v. City of New York, the Appellate Division, Second Department addressed whether the defendants – City of New York, New York City Economic Development Corporation, and Apple Industrial Development Corp., had a duty to repair unsafe conditions located inside a building leased to plaintiff’s employer. The Supreme Court denied the defendants’ motion for summary judgment; however, the Appellate Division reversed the Supreme Court dismissing the plaintiff’s complaint. Plaintiff was allegedly injured when he slipped on ice created by a leaky pipe inside the ceiling of a walk-in freezer in a building leased to plaintiff’s employer. Plaintiff alleged that his injuries were caused by the defendants’ negligent operation and management of the premises which the freezer was located. The Appellate Division stated that “An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct” (citations omitted). As such, the case came down to the language of the lease between the plaintiff’s employer and the defendants, which stated, “Landlord's Obligations do not include the performance nor the payment of the costs for . . . the maintenance, repair and/or replacement of Freezer System or the replacement of the Refrigeration System at any time.” As such, according to the lease, plaintiff’s employer bears the responsibility of the maintenance to the walk-freezer. This decision serves as a reminder that the lease will likely be the most important document in a case when representing a landlord. As such, always request the lease from your landlord clients. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News McDonald’s Summary Judgment Denied: Would You Like Discovery With That? June 25, 2019 < Back Share to: Pre-discovery motions for summary judgment are extraordinarily difficult to succeed on. Opposition to such a motion essentially writes itself. "Counsel's argument is premature, as further discovery is likely to reveal unknown information, and discovery has not even commenced yet, et cetera, et cetera... And while McDonald’s pulled off a "Mcflurry" by succeeding on its motion at the state level, the Appellate Court hamburgled its victory, reversed, and remanded for further proceedings. In Peoples v. McDonalds, the Court of Appeals of Indiana found that McDonald’s could not avoid discovery obligations and simultaneously move for summary judgment. In Peoples, a ten-year old patron was injured when he tried to get off a stool and it lifted off the floor and broke, causing him to fall. A complaint was filed against McDonald’s and was later amended to add Indiana McDonald’s LLC, Randy Shields, and Toucan, Inc. Plaintiff served discovery demands on April 6, 2018. McDonald’s sought two extensions of time to respond which were granted and time extended to July 31, 2018. On July 10, McDonald’s moved for summary judgment, without responding to discovery, based solely on an affidavit from Shields as franchisee absolving McDonald’s from any responsibility for the bar stools. A franchise agreement was not attached to the motion. The grounds for summary judgment were similar to New York’s out-of-possession landowner statute, but due to its specificity, is rarely invoked until after completion of depositions. In this case the Court was clearly perturbed that despite multiple requests for extension of time to serve discovery responses, the motion was made in advance of a single document exchange. As a general rule, summary judgment is improper while pending discovery is directly relevant to matters at issue such as the legal relationship between McDonald’s, Shields, and Toucan here. The discovery demands were not seeking overly broad of "proprietary" information, such as, for example, Special Sauce ingredients. (We're pretty sure it's just Thousand Island dressing, but that's a topic for another post.) Even more offensive to the court was McDonald’s argument that plaintiffs failed to diligently pursue discovery. The Court found that as McDonald’s moved for summary judgment 3 weeks before the discovery deadline ended, there was nothing more plaintiffs could affirmatively do to preserve their claims and, “To hold otherwise would be to sanction the type of “gotcha” litigation that this Court so abhors.” Thanks to Mehreen Hayat for her contribution to this post. Please contact Brian Gibbons with any questions. Previous Next Contact

Louisiana Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Contact Details 824 Elmwood Park Blvd, Suite 215, New Orleans, LA 70123 504 291 2054 504 324 0190 Attorneys and Professional Staff Jonathan H. Adams Counsel Chynna S. Demas Associate E. Alexis Bevis Partner

News Insured Contract Exclusion Requires A Third-Party October 28, 2022 < Back Share to: In Stevanna Towing, Inc., et al. v. Atlantic Specialty Ins. Co., No. 21-1420, 2022 WL 12241451 (3d Cir. Oct. 21, 2022), a Stevanna employee was injured when the boat he was deckhand on— which was being piloted by an employee of Georgetown Sand & Gravel—bumped into a barge. Stevanna, among others, resolved the suit with the employee and then sought reimbursement for the costs associated with its defense and settlement. Atlantic Specialty Insurance Company (“Atlantic”) denied coverage. Among the many issues was whether the insured contract exception to the employer-liability exclusion applied to provide coverage to certain additional parties. The Atlantic policy’s definition of insured contract included “that part of any other contract or agreement pertaining to [Stevanna’s] business . . . under which [Stevanna] assume[d] the tort liability of another party to pay for ‘bodily injury’ . . . to a third person or organization.” The court stated that for the exception to apply, Stevanna needed to have assumed the tort liability for injuries caused by another party; however, the indemnification agreement in question was for liability for injuries “caused in whole or in part by the negligence of Stevanna, its agents and employees.” Hence, as the “insured contract” did not expressly purport to assume the tort liability of another party, the court held the exception for insured contracts did not apply. Also noteworthy was the Third Circuit’s refusal to entertain the argument that Atlantic waived the implementation of the employer-liability exclusion by not referencing it in its denial letter nor in its answer to the complaint. The court stated “those omissions do not amount to an implied waiver under Pennsylvania law.” Thanks to Richard Dunne for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact