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News Communication with Your Client is Key (NY) March 15, 2019 < Back Share to: In Amerally v. Liberty King Produce, Inc. the Appellate Division reversed the lower court’s order, granting defendant’s motion to enforce a settlement agreement and denying plaintiff’s motion to vacate the settlement agreement. The plaintiff tripped and fell over a hose outside of a store owned by the defendant. The plaintiff then commenced this action and while the action was pending, the attorneys for both parties participated in a mediation and signed an agreement resolving the matter for the sum of $150,000. However, when the defendant sent the plaintiff the settlement agreement, the plaintiff refused to execute, and the defendant moved to enforce it. The plaintiff then obtained a new attorney and cross-moved to vacate the settlement agreement on the ground that she never provided her former attorney with the authority to settle the action for the sum of $150,000 and that she was unaware that a settlement had been reached until several weeks after the mediation. The Supreme Court denied the defendant’s motion and granted the plaintiff’s cross motion. The defendant appealed. The court affirmed, holding that stipulations of settlements are favored by the court and further stating that when a settlement agreement is in writing and signed by a client or attorney, it should be considered binding on both parties. In addition, the court held that a stipulation may bind a party even where it exceeds the attorney’s actual authority, if the attorney had apparent authority to enter into the stipulation. Here, it was demonstrated that the plaintiff knew that her former attorney was participating in the mediation. Moreover, even if the attorney lacked the actual authority to enter into the settlement agreement, a finding could still be made of apparent authority. In addition, the party seeking to set aside the stipulation must prove that it was unfair or one sided. Thus, the case reveals that it is important to keep open communication to avoid unnecessary headaches and motion practice. Thanks to Nicole Lyalin for her contribution to this post. Please email Vito A. Pinto 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

News EDPA Holds Plaintiff’s Conclusory Allegations of Insurer Bad Faith Insufficient (PA) August 7, 2020 < Back Share to: In Harris v. Allstate, the plaintiff brought an action against her insurer, alleging the insurer breached the terms of the policy and engaged in bad faith conduct. By way of brief background, it was alleged that Allstate issued a policy to plaintiff. It was further alleged that a covered “peril” occurred, which caused “direct physical damage” to the plaintiff’s property. Plaintiff alleged that although she promptly notified Allstate of the loss, Allstate refused to pay for the damage. Allstate filed a motion to dismiss in respect of plaintiff’s bad faith claim, arguing that plaintiff failed to allege sufficient facts to plausibly demonstrate Allstate committed bad faith in handling the claim. The Eastern District of Pennsylvania focused its analysis on the section of the complaint where plaintiff alleged the basis for the bad faith claim. In her complaint, plaintiff averred, inter alia, Allstate sent “correspondence falsely representing that Plaintiff’s loss [was not] caused by a peril insured against under the Policy”, failed to “objectively and fairly evaluate plaintiff’s claim”, failed to “fairly negotiate the amount of the loss”, and failed to “complete a prompt and thorough investigation” before denying coverage. The court found these averments to be “conclusory statements unsupported by facts”, as the plaintiff failed to provide adequate explanations for the averments. Accordingly, the court granted Allstate’s motion to dismiss, holding that the complaint’s “bald assertions and conclusory legal statements” were insufficient to state a claim for which relief could be granted. This case offers support that a bad faith claim may not survive, in federal court, if the plaintiff fails to allege sufficient factual detail of the alleged bad faith. As such, insurers should keep a watchful eye towards a complaint’s allegations to see if this is a basis to dismiss any bad faith claims. Thanks to Rachel Thompson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. 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 WCM is Pleased to Announce that James W. Scott, Jr. has been Promoted to Partner July 1, 2022 < Back Share to: Effective July 1, 2022, Jim Scott, who works in our Philadelphia office, has been promoted to partner. Jim is the current President of the Pennsylvania Defense Institute and a past-President of the Philadelphia Association of Defense Counsel. As such he is the only attorney ever elected president of both defense organizations. Jim is a graduate of Duke University and Temple University School of Law. With 28 years of experience, Jim focuses his practice on the defense of construction defect, construction accident, premises liability, and products liability claims. Prior to becoming an attorney, Jim was the Assistant Director of Operations with the largest fabricator/erector of structural steel in the Delaware Valley. As such, his construction defect practice has been substantially enhanced by significant real world experience. Previous Next Contact

Anand P. Tayal Associate Pennsylvania apandittayal@wcmlaw.com +1 267 665 0014 Professional Experience Anand Tayal litigates general liability actions including premises liability, construction defect claims, and motor vehicle accidents. His work includes all stages of litigation including investigation, fact analysis, drafting pleadings and motions, depositions, conducting legal research, attending hearings, arbitrations, and mediations, and preparing for trial. During law school, Anand clerked for a personal injury firm and gained valuable insight into Plaintiff side personal injury litigation. Honors and Distinctions While in law school, Anand was the Captain of the Jessup Moot Court Team and received an award for being a Top 10 oralist at the Jessup Regional Rounds in Washington D.C. Recipient of the Beasley Law Faculty Scholarship Prior to law school, Anand was on the executive committee of the Mock Trial Team at Bucknell University. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Temple University Beasley School of Law B.A., Bucknell University Bar Admissions Pennsylvania New Jersey

News Watch Where You’re Walking in NY October 12, 2011 < Back Share to: In [i]Vazquez v. Genovese Drugs, Inc[/i]., the plaintiff sustained injuries after tripping and falling over a raised portion of a rug at the entrance to the defendants' drugstore. However, at her deposition, the plaintiff testified that everything looked “normal” and that she did not notice anything until [i]after[/i] she fell. The defendants moved for and were granted summary judgment. On appeal, the Appellate Division, First Department affirmed holding that the plaintiff failed to offer any evidence as to actual or constructive notice and that all observations as to the rug were made after she fell. Furthermore, without evidence of a defect, the drug store did not have to demonstrate when it last inspected the rug. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/REPORTER/3dseries/2011/2011_06982.htm Previous Next Contact

News Jury's Web Research Leads to Mistrial (NY) May 2, 2013 < Back Share to: Speaking with the jury after a trial is always fraught with peril. That issue recently came to light in Olshantesky v. NYCTA, where it was discovered after the trial that the jury consulted an on-line dictionary to help them define the term “substantial.” The trial court found, and the appellate court agreed, that such research constituted juror misconduct, warranting a mistrial. Interestingly, the appellate court allowed the damages award to stand, finding no evidence that the misconduct affected the jury’s determination on damages. However, the parties will be required to retry the liability case. If you would like more information, please write to Mike Bono. Previous Next Contact

News NY App Div: Insurers Window to Disclaim Coverage May Be Shrinking January 5, 2010 < Back Share to: If an insurance company wishes to disclaim coverage to an insured based on untimely notice of the claim, they must act expeditiously or risk being estopped from disclaiming coverage on those grounds. In Scott McLaughlin Truck & Equipment Sales, Inc. v. Selective Ins. Co. of Am., the court found untimely a disclaimer issued by an insurance company less than two months after the insurer was on notice of a potential claim, even though the plaintiff had failed to report the claim to the insurer for nearly four years. The court noted that the timeliness of a disclaimer is measured from the moment when the insurer first learns of the grounds for the disclaimer. Here, the court concluded that Selective knew or should have known of the grounds for disclaimer on the same day they were first notified of the claim. Selective asserted that difficulties with its investigation resulted in the delay in disclaiming and generally the courts have allowed an insurer a reasonable amount of time to conduct investigation and thereafter issue an effective disclaimer. However, the case at hand suggests that New York Courts are affording insurers increasingly less time to issue timely disclaimers of coverage. Thanks to Chris O'Leary for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_10030.htm Previous Next Contact

News Court Splits on Electrical Upgrade Issue (NY) October 20, 2017 < Back Share to: In Daly v 9 E. 36th LLC, a New York court wrestled with the issue of whether an apartment building has a duty to update its electrical system to meet the modern electrical needs of tenants, and the question of who is responsible when electrical overuse by a tenant results in a fire. The plaintiff in this case was a tenant in the defendant’s building, who was injured by a fire in his rent-stabilized studio apartment. The fire was described in the fire incident report as originating "in an area of electrical wiring"; the report also noted the presence of "multiple extension cords plugged in to one outlet with a power strip." The apartment building was built in the 1930s and the plaintiff's apartment had three electrical outlets in the main living space, with additional ones in the hall, the bathroom, and the kitchen. No interior electrical upgrade had ever been done to the apartment, although the plaintiff made several requests to the building to install more outlets. In addition, the plaintiff had shown the superintendent that the existing receptacles were in disrepair. Plaintiff told the superintendent that he "didn't feel comfortable with using the extension cords," and did not use them for long periods of time because they would get hot. From all accounts the fire was caused by the overuse of the electrical outlets in the apartment. Plaintiff argued that the building’s decision not to upgrade the electricity in his apartment, despite the apartment's history and his requests over the years, was a breach of the duty to keep the building safe and functional for all tenants. The building filed a motion for summary judgment in New York County Supreme Court, and the court denied the motion. On appeal, the majority of the court agreed that a jury should decide whether plaintiff's lifestyle and electrical consumption are above and beyond the reasonable needs of any modern tenant, and whether the building had a duty that it breached to keep the apartment building, and plaintiff's apartment, reasonably safe. The dissenting opinion, however, was that “rather than moderating his use of power to conform to the building's electrical capacity (or at least using different outlets for different appliances), plaintiff was entitled to have defendant upgrade the building's wiring to accommodate his demand.” The dissent concluded that summary judgment should have been granted on the ground that plaintiff's negligent use of extension cords to operate numerous appliances simultaneously, as opposed to any alleged defect in the apartment's electrical wiring, was the sole cause of the fire. In its conclusion, the dissent found plaintiff's "lifestyle and electrical consumption" must still be in accord with the building's electrical capacity. Based on the 3-2 decision, it will be interesting to see if this decision winds up with the Court of Appeals. Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited September 3, 2009 < 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 Step Class Not Inherently Dangerous June 25, 2009 < Back Share to: In Devorah Meisels v. Lucille Roberts Health Clubs, Inc., the plaintiff was injured when she slipped on an excercise step while participating in a step class. The plaintiff claimed that she slipped because the fuzz from a newly-installed carpet had become caught in the grooves of the step. The defendant moved for summary judgment arguing that the plaintiff testified that she first noticed the fuzz 30 minutes prior to the accident, but continued to use the step without complaint. The trial court denied the defendant's motion for summary judgment, but the Appellate Division reversed and granted the defendant's motion for summary judgment reasoning that the condition of the carpet fuzz was open and obvious and not inherently dangerous condition. http://www.nycourts.gov/reporter/3dseries/2009/2009_05303.htm Previous Next Contact