Wade Clark Mulcahy LLP

News New York Appellate Court Emphasizes The Importance Of Timely Settlement Payments October 6, 2022 < Back Share to: In New York, when an action to recover damages is settled, the settling defendant has twenty-one (21) days after tender of the required documents to pay all sums to the settling plaintiff. CPLR 5003-a. If the settling defendant fails to do so, then the plaintiff is authorized to enter a judgement “for the amount set forth in the release, together with costs and lawful disbursements, and interests,” without further notice to the defendant. CPLR 5003-e. The Appellate Division, Second Department addressed these rules in the recent case of Levine v. American Multi-Cinema, Inc. In that case, plaintiff tripped and fell on property owned by the defendant and the case was settled for $25,000. Two weeks after settling, counsel for defendant informed the Supreme Court that the parties had settled, and a stipulation of discontinuance would soon be filed. Prior to doing so, defense counsel sent plaintiff’s attorney a draft release. The plaintiff’s attorney subsequently returned an executed copy of the release and, citing CPLR 5003-a, requested that defendant send the settlement check within twenty-one (21) days. Twenty-six (26) days later, defense counsel informed plaintiff’s attorney that they would only disburse the settlement proceeds after a Medicare lien had been paid, and a lien payoff letter issued. The insurer then paid the lien in the amount of $1,716.18. Plaintiff moved for leave to enter a judgment with interest, pursuant to CPLR 5003-a. As this motion was pending, a Clerk’s judgment was entered against the defendant for $25,000, plus costs, disbursements, and interest. Defendant subsequently paid the settlement check, minus the lien payment, which was rejected by plaintiff’s counsel. Defendant then cross-moved to vacate the clerk’s judgment and the Supreme Court granted the motion. The Second Department reversed, holding that plaintiff had fulfilled the obligations set forth in CPLR 5003-a when she tendered a duly executed general release and stipulation of discontinuance to defendant’s counsel. Contrary to defendant’s argument, nothing in their general release obligated the plaintiff to provide lien information or a payoff letter as a condition precedent to payment, so the Supreme Court’s decision was incorrect. The Levine case highlights the importance of complying with CPLR 5003 when paying personal injury settlements in New York. The failure to do so can subject defendants and their insurers with additional exposure in the form of costs and interest. The case also highlights the importance of addressing Medicare issues before settlement and the need to include appropriate language in releases if lien or payoff information is required. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News WCM Achieves Dismissal of a Defamation Lawsuit Against a Law Firm July 11, 2013 < Back Share to: New York, NY Partner Dennis Wade and associate Alison Weintraub received a complete pre-answer dismissal of plaintiff’s complaint in the case of Roth v. Tarter Krinsky & Drogin LLP, a defamation action brought in New York City Civil Court. Roth, a former partner at Tarter Krinsky alleged that certain partners at his prior firm made defamatory and slanderous remarks causing harm to his business reputation. The complaint, however, lacked the specificity required by the CPLR for a defamation action and we therefore argued that it should be dismissed. In addition, we argued that the allegedly defamatory statements were protected by a common interest privilege, as any comments were made between attorneys within the law firm. The court agreed both on specificity and privilege grounds and granted the motion to dismiss, while simultaneously denying Roth’s cross-motion request to replead. Previous Next Contact

News Beware the elevation-related risk sitting firmly on the ground - NY Labor Law §240 June 10, 2016 < Back Share to: Beware the elevation-related risk sitting firmly on the ground Labor Law § 240(1) requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, often either falls from a height or injuries from falling objects. However, the First Department has recently confirmed that Labor Law § 240(1) liability can attach to items that have yet to leave the ground. In Grant v Solomon R Guggenheim Museum, plaintiff was standing on the back of a flatbed truck to help offload a crate of window glass. While preparing the crate for offloading it tipped over onto plaintiff, knocking him off the truck and onto the ground, four feet below. Both plaintiff and the defendant museum and general contractor cross-moved for summary judgment on plaintiff’s Labor Law § 240(1) claim, and the trial court ruled for co-defendants and dismissed plaintiff’s complaint. The First Department unanimously reversed the trial court’s ruling and granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, holding that plaintiff had established a prima facie case that he was injured due to an elevation-related risk. The court ruled that due to the height of the crate (6ft tall) and the weight of the crate (at least 1,500 pounds), the force generated by the crate’s fall did not pose a de minimis elevation-related risk, meaning defendants were liable for plaintiff’s injury. The court further determined that the crate should have been secured while being prepared for moving, and that it was undisputed that devices that should have been used to stabilize the crate were not in fact used. The court also declined to rule that plaintiff was the “sole proximate cause” of his injury—one of the sole defenses available to Labor Law § 240(1) defendants—because he was not provided with proper safety devices as he maneuvered the crate using a Johnson bar. The court did however uphold the trial court’s dismissal of plaintiff’s Labor Law §200 claim, ruling that the positioning of the flatbed truck at the time of plaintiff’s accident was a temporary condition necessary for the work rather than a dangerous worksite condition, and that the museum and general contractor were not liable because they exercised no supervision or control over it. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NJ Court Sides With H.O. Insurer In Dispute With Auto Carrier May 2, 2008 < Back Share to: < ![CDATA[NJ Court Sides With H.O. Insurer In Dispute With Auto Carrier]]> Previous Next Contact

News Bare Legal Conclusions in a Complaint Not Sufficient to Survive Motion to Dismiss June 14, 2024 < Back Share to: The Second Department recently issued an interesting opinion on the application of the agency theory in a unique livery cab case. In Bailey v. City of New York , the plaintiff, who is blind, was injured when he tripped and fell after a cab let him out on the sidewalk. Plaintiff was using an accessible ride program arranged through the New York City Transit Authority (“NYCTA”) and a smartphone app called Curb Mobility. The driver was an employee and/or agent of Curb and the NYCTA. Plaintiff sued the driver, NYCTA and Curb alleging that the driver breached his duty by not ensuring the plaintiff was let out of the cab in a safe place. Curb and NYCTA were sued under a theory of agency for the negligent hiring, training, and retention of the driver. The trial court denied NYCTA and Curb’s motion to dismiss pursuant to CPLR 3211(a)(7). On appeal, the Second Department examined whether NYCTA and Curb “should have known of the employee's propensity for the conduct which caused the injury." The record did not indicate whether there was any training to employees on how to assist blind customers, nor did the complaint allege that Curb or NYCTA knew or should have known of the driver's propensity for the conduct which caused the injury or contain any factual allegations to support such an inference. The Court found that while there was an agency relationship between NYCTA and Curb and the driver, bare legal conclusions without any factual allegations was insufficient to sustain the negligent hiring claims against NYCTA and Curb based on a theory of respondeat superior, so the Court should granted have granted that aspect of the motion. The Bailey decision reiterates the requirement in New York that plaintiffs must provide a certain factual basis for legal allegations in a Complaint. Defense counsel should closely examine the initial pleading and consider moving to dismiss where appropriate. Bailey v. City of New York .pdf Download PDF • 1.48MB Previous Next Contact

News Creative Pleading In PA Requires A Duty To Defend September 30, 2022 < Back Share to: In Siehl v. City of Johnstown, et al., the plaintiff was convicted of murder and was incarcerated for twenty-five years. The plaintiff alleged that, during his period of incarceration, the defendant city and county withheld exculpatory evidence and produced false disclosure statements. After multiple hearings, the Court determined that the defendant officers were untruthful and hid exculpatory evidence. The plaintiff was thereafter free. The plaintiff therefore sought damages for wrongful imprisonment, loss of freedom, economic loss, and critically, exposure to physically harmful prison conditions (e.g. a bodily injury). The defendant city and county thereafter added their insurance carrier to the action with a third-party complaint. The third-party defendant insurer issued an insurance policy to Cambria County, Pennsylvania. The policy in question included general liability coverage and law enforcement liability coverage that extended to cover damages because of “injury, sickness, disease, disability, shock, mental anguish, mental injury and humiliation” as well as false imprisonment, malicious prosecution, and deprivation of constitutional rights. The Eastern District began its analysis by citing the foundational pillars of insurance coverage law in Pennsylvania: the insurer's duty to defend is broader than the duty to indemnify and the duty to defend arises whenever an underlying complaint may potentially come within the insurance coverage. The insurer argued that it owed no duty to defend the claims that were derivative of the initial malicious prosecution. The court disagreed. Concluding that the allegations in the lawsuit would, if true, be covered by the policy, the Eastern District concluded that “under the legally appropriate interpretation/evaluation of the applicable language at issue, [the insurer] owe[d] a duty to defend” partially because of the allegations in the complaint concerning a bodily injury caused by an occurrence. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News College Security Program Creates Duty To Implement That Program Properly (PA) February 9, 2023 < Back Share to: In Doe v. Moravian College, 2023 U.S. Dist. Lexis 4027, 2023 WL 144436 (E.D. Pa. Jan. 10, 2023), the Court acknowledged that landlords can be found liable for the criminal conduct of other parties when the landlord establishes a program of security. In Doe, Plaintiff asserted a claim of negligence against her college alleging that the school failed to provide adequate security after she was allegedly sexually assaulted in a dorm. Generally, a landlord owes no duty to protect its tenants from the criminal conduct of other parties. However, the Court found that an exception to Pennsylvania’s standard negligence law applied when a landlord establishes a program of security, the tenants reasonably rely upon it, and the landlord negligent carries out the program. In Doe v. Moravian College, the court found that there is evidence that the college had implemented a security program in the dormitories by requiring school identification cards to enter the dormitories, they used residential advisors in their dormitories, and that security workers were employed by the school. The school, therefore, owed a duty to the Plaintiff as a landlord. The College argued that no duty was owed because courts have stopped imposing a duty of loco parentis upon colleges and universities. However, the Court differentiated the case because the tortious act took place in a campus dormitory. Ultimately, the Plaintiff's case failed when she had to show that the College breached a duty to the Plaintiff by showing that the operation of the security program was negligent. Here, the Court found that the Plaintiff failed to provide evidence of the breach through a negligent security program. Thanks to Jean Scanlan for her contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Exclusion for Prior Dishonest Acts Can’t Scrap Coverage for Stolen Metal (PA) September 10, 2020 < Back Share to: In National Retail Systems Inc v. Markel Insurance Company, the Eastern District of Pennsylvania examined ambiguous language in an insurance coverage dispute arising out of employee theft. The federal judge held that an exclusion barring coverage for "prior dishonest acts" did not apply to cases of collusion where only one of the conspirators had a known history of dishonesty. Keystone Freight Corp. terminated Brian Allison in 2004 after discovering he had punched in for work but was never seen for the entire day. Keystone then rehired Allison in 2015. Between 2015 and 2016, Allison and co-worker Joseph Allen stole 74 Keystone trailers and miscellaneous metal, conspiring to sell the trailers as scrap and split the proceeds. Keystone sought in coverage for the scrapped trailers under a commercial crime policy with Markel, which provides coverage for any theft of money or property committed by an employee acting alone or in collusion with other people. Markel denied coverage in July 2016, citing the policy's prior-dishonest-act exclusion, which states that the policy does not cover loss caused by an employee who had also committed theft or any other dishonest act before the policy's inception. Markle argued that the exclusion applied Keystone knew Allison had committed a dishonest act given that it had fired Allison in 2004 for stealing company time. Plaintiffs argued that the exclusion did not apply since only Allison and not Allen had a known history for dishonest acts. The court sided with plaintiffs, holding that Markle owed coverage for the scrapped trailers because the policy is ambiguous as applied to the facts of the case. The court reasoned that while the policy plainly contemplates and covers employee thefts committed by more than one person, it did not specifically address circumstances where one of multiple colluding employees triggers the prior-dishonest-act exclusion. In other words, since the exclusion applied to Allison but not Allen, an ambiguity arose since the two men acted together to steal the trailers. Leaning heavily on the well-established principle that ambiguities in policy exclusions are to be construed against the insurer, the court found that this ambiguity cut in favor of coverage. The court noted that if Markel had intended to exclude coverage under such circumstances, it could have said so expressly in the policy. This case represents a win for insureds and a cautionary tale for insurers underscoring the importance of precise drafting, particularly when it comes to policy exclusions. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NY Court of Appeals Redefines "Arising Out Of." July 18, 2008 < Back Share to: The phrase "arising out of" has long been broadly construed by New York's courts. This has proven beneficial to many a would be additional insured. Unfortunately, the party may be about to stop. In the case of Worth v. Admiral, et al. (May 1, 2008), the Supreme Court was confronted with a situation in which a general contractor and would-be additional insured sought coverage from the subcontractor and named insured's insurer. The general contractor argued that even though it had conceded that the subcontractor's work was not negligent, the underlying personal injury action "arose" from the subcontractor's work and therefore it was entitled to coverage. The First Department agreed and ordered the subcontractor's carrier to provide coverage. The Court of Appeals, however, disagreed and held that once the general contractor conceded that the subcontractor was not negligent, it could no longer argue that the underlying accident arose out of the "general nature" of the subcontractor's work. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7856961 Previous Next Contact

News NJ: Retailer Not Responsible For Sharp Knives January 18, 2013 < Back Share to: The N.J. Appellate Division recently analyzed whether a plaintiff has a claim for negligence when he is harmed by an obvious and dangerous item on display at a retail store. In Khutorsky v. Macy’s, Inc., a husband and wife visited Bloomingdale’s to shop for pots and pans. The husband began to examine kitchen knives placed in a butcher block located in an unlocked, glass-faced cabinet. Other high-end knives would be in a locked display to avoid theft. While pulling a knife from the block, it began to slip from his hand. He swatted at the knife to avoid getting struck in the thigh and as a result cut two tendons and required surgery. Plaintiffs subsequently filed suit claiming that the above-referenced injuries resulted from Bloomingdale’s negligence. Bloomingdale’s moved for summary judgment arguing that it did not breach a duty owed to plaintiff nor was it the proximate cause of plaintiff’s injuries. The Court granted Bloomingdale’s motion finding that the threat of cutting one’s self with a knife is so patently obvious that there was no duty to provide a warning. Plaintiffs appealed in part arguing that there were genuine issues of fact including whether Bloomingdale’s was negligent that should have precluded summary judgment. The Appellate Division affirmed the lower court’s decision. While a retail store has a duty to provide a reasonably safe premises, it has no duty to warn of dangers that are open, obvious and easily understood. Furthermore, no breach could be found in the way Bloomingdale’s displayed the knives. Nothing was hidden or conspicuous in the knife display and the plaintiff had already examined several knives before being injured. The Court found this fact pattern similar to where a plaintiff injures himself after diving into the shallow end of a swimming pool despite knowing the depths of the pool. Summary judgment was therefore appropriate under these circumstances. The death of common sense has been greatly exaggerated. Thanks to Andrew Marra for his contribution to this post. If you have any questions or comments, please email Paul at mailto: pclark@wcmlaw.com     Previous Next Contact

News Personal Injury Action Leads to Wrongful Death Action (NY) June 21, 2019 < Back Share to: In Halloran v Kiri, plaintiff-decedent, who was involved in a motor vehicle accident in 2007 injuring her left shoulder, underwent a number of surgeries to treat the injury. Over the course of the 5 years leading up to her death, plaintiff-decedent received prescriptions for narcotic pain medication from her treating orthopedic surgeon, a pain management specialist, and two other doctors before beginning treatment with defendant Kiri. Her previous treating physicians denied her requests for further prescriptions when decedent exhibited opioid-seeking behavior. Decedent first presented to Dr. Kiri in August 2012 with complaints of chronic pain. Dr. Kiri initially refilled decedent’s high-dose oxycodone prescription, then switched to fentanyl patches, but discontinued the prescription when decedent claimed a skin rash. Ultimately, Dr. Kiri restarted the high-dose oxycodone prescription, and eventually began prescribing decedent Xanax for anxiety as well. Dr. Kiri treated decedent for 14-months until her fatal accidental overdose, never lowering decedent’s prescriptions despite personal notes in decedent’s file stating that medication needed to be lowered. Plaintiff’s family sued asserting causes of action for wrongful death, medical malpractice, negligence, and lack of informed consent. Defendant moved for summary judgment dismissing the complaint on the grounds that decedent’s death was not proximately caused by Dr. Kiri’s acts or omissions. The lower court denied defendant’s motion. The Appellate Division, First Department, found that Kiri failed to meet his burden for summary judgment on causation as decedent's use of illicit drugs was not unforeseeable, and therefore her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death. The Appellate Division further found defendant’s policy argument that all doctors would have to become detectives before prescribing opioids unpersuasive, and opined that Kiri’s failure to obtain medical records, speak with decedent’s orthopedist, and heed signs of opioid abuse during his 14-month treatment of decedent raised an issue on deviation from accepted practice. Finally, the Appellate Division found that defendant’s expert’s opinions on informed consent were conclusory as they did not specify what risks should have been disclosed by Kiri to decedent before prescribing opioids and Xanax. This is a case of first impression in the appellate courts providing a malpractice cause of action for victims of opioid over-prescription which, given the opioid crisis, is likely to be further expanded or defined as new cases make their way to the appellate courts. Thanks to Margaret Adamczak for her contribution to this post. Please email Georgia Coats with any questions. 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