News An Arbitrator’s Award In Excess Of Policy Limit Constitutes Grounds For Vacatur (NY) May 6, 2022 < Back Share to: New York Appellate Court holds once an insurer has paid the full monetary limits set forth in its insurance policy, the insurer’s duties to the policyholder under the policy cease. Accordingly, where an arbitrator’s award directs payment in excess of the monetary limit of a policy of insurance, the Appellate Division, First Department has held that the award is subject to vacatur. In Allstate Fire And Casualty Insurance Company v. Branch Medical P.C., 2022 WL 1163074 (1st Dep’t 2022), Petitioner-Respondent Allstate Fire & Casualty Insurance Company (“Allstate”) issued a policy of insurance to an insured that included a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 policy limit for Optional Basic Economic Loss coverage. (the “Policy”). Subsequently, the insured received medical treatment from Respondent-Appellant Branch Medical, P.C. (“Branch Medical”). As such, Branch Medical sought to recoup fees from Allstate and the two parties submitted to arbitration. At the conclusion of the arbitration, the master arbitrator’s award directed payment to Branch Medical in excess of the monetary limit of the Policy. Consequently, Allstate petitioned to have the arbitrator’s award vacated, whereas Branch Medical submitted a cross-motion to confirm the arbitrator’s award. Ultimately, the Civil Court vacated the master arbitrator’s award and denied respondent’s cross-motion, resulting in Branch Medical filing an appeal with the First Department. Upon review of the appeal, the First Department held the arbitrator’s award directing payment in excess of the monetary limit of the Policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award. In essence, Allstate’s submissions of evidence—including the testimony of Allstate’s claims adjustor, policy declarations page, and ledgers listing the dates any claims were received and paid—were deemed sufficient to establish the Policy had been exhausted by payments of no-fault benefits to other health care providers and lost wages to the assignor before Allstate was obligated to pay the claim at issue. Although Branch Medical attempted to assert new arguments throughout the appellate process, the Court noted that it would not consider different theories or new questions that were not presented to the Civil Court. Ultimately, the First Department upheld the Civil Court’s Order that granted the petition of Allstate to vacate the master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award. Thanks to Drew Fryhoff for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Property Owner Is Not Neighbor's Keeper (NY) June 14, 2013 < Back Share to: In order for a plaintiff to maintain a viable claim under the labor law against a property owner, the property owner must own, or at least have some interest in the property where a plaintiff is injured. In Alvarez v Hudson Val. Realty Corp., 23 NY Slip Op 04300, plaintiff commenced an action against Hudson Valley Realty Corp., alleging violations of Labor Law §§§ 240(1), 241(6), and 200. In defense of the matter, Hudson Valley argued that it did not own the property where plaintiff was injured, but rather, was the owner of the abutting property. The Appellate Division, Second Department, upheld the trial court’s ruling, granting Hudson Valley’s motion for summary judgment. The Court held that Hudson Valley demonstrated its prima facie entitlement to judgment as a matter of law dismissing the causes of action asserting violations of Labor Law §§ 240(1) and 241(6) by establishing that it was an abutting property owner with no property interest in the premises upon which the plaintiff was injured, and it neither contracted for nor controlled the construction work on the premises. Further, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 by establishing that it did not own, occupy, or control the premises and that it did not have the authority to supervise or control the manner in which the work was performed. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Call Your Next Witness - Christon Halkiotis May 2, 2013 < Back Share to: Christon Halkiotis and I have a lot in common, in that we're both former prosecutors who sought a change after a handful of years representing the government. Christon's path took her to criminal defense, where she started her own practice in 2019 in Greensboro, North Carolina after 15 years as a prosecutor. Her practice flourished immediately, which is a testament to Christon's personality, reputation and credibility among colleagues, and also, to a ton of hard work! She shares some lessons about how to make yourself a better attorney, what it was like to "hang out a shingle," and how she has dealt with owning a business during the pandemic. You can listen here, or wherever you download podcasts. If you have questions about the podcast, or about being a guest, please email Brian Gibbons. Previous Next Contact

News Pre-Approved Medical Devices Immune From Personal Injury Liability February 26, 2008 < Back Share to: In Riegel v. Medtronic, patient Charles Riegel was injured in 1996 when a balloon catheter burst while being inserted to dilate a coronary artery. Prior to this accident, in 1994, this medical device was awarded premarket approval from the Food and Drug Administration. In affirming the dismissal of plaintiff's state lawsuit, the United States Supreme Court held that medical devices that are approved by the F.D.A. cannot be subject to personal injury lawsuits unless the device was made improperly, in violation of F.D.A. specifications. At the center of this decision was the interpretation of the Medical Device Amendments Act of 1976 that bars states from imposing "any requirement" related to a medical device that is "different from, or in addition to" a federal requirement. http://www.nytimes.com/2008/02/21/washington/21device.html?_r=1&ei=5088&en=e6cfcd2157d5881f&ex=1361336400&adxnnl=1&oref=slogin&partner=rssnyt&emc=rss&adxnnlx=1204027980-HTNIGylhY9c5usXyxbVczg Previous Next Contact

News Court Boots Case Against School Aide December 4, 2007 < Back Share to: In a brief decision by New York's 1st Department, the Court held a school was not liable when an assistant helping with basketball practice made a "sudden, unforeseen, and spontaneous attack" on plaintiff that greater supervision would not have prevented. http://www.nycourts.gov/reporter/3dseries/2007/2007_09338.htm Previous Next Contact

News Superstorm Sandy and the Importance of Persuasive Petitions for Certification (NJ) September 27, 2019 < Back Share to: The State of New Jersey, and its courts, are still reeling from the aftermath of Hurricane Sandy. In US Masters Residential Property USA Fund v. New Jersey Department of Environmental Protection, the New Jersey Supreme Court was tasked with reviewing an arbitrator’s decision in connection with allegedly contaminated flood waters in the storm’s wake. The Court’s decision, and the legal road it took to reach its destination, provide important lessons that impact other environmental cases throughout the state. The claimant owned five adjoining residential properties located near the waterfront in Bayonne, New Jersey. During the aftermath of Hurricane Sandy, petroleum-based contaminants were allegedly discharged onto the five properties, rendering them inaccessible and uninhabitable. The claimant filed a timely claim seeking reimbursement based on an expert’s personal observations and laboratory analyses. The New Jersey Department of Environmental Protection (“NJDEP”) investigated and rejected the claim on the grounds that the source of the contamination was a historic fill rather than oil. After a two-year delay in the NJDEP’s scheduling of Spill Act arbitration, the parties arbitrated the dispute. On the eve of arbitration, the NJDEP served a rebuttal expert report supporting the historic fill explanation but also suggesting that diffuse anthropogenic pollution (DAP) was also a likely source of contamination. At arbitration, the administrative law judge rejected the historic fill theory but nonetheless concluded that the claimant failed to satisfy its burden to show the damage was caused by a post-Spill Act discharge and dismissed the claim. The claimant appealed. The New Jersey Supreme Court reviewed the NJDEP’s regulations for Spill Fund arbitrations, which require a clear showing of arbitrary, capricious, or unreasonable result to overturn the arbitrator’s ruling. Despite that high bar, the Supreme Court ruled the administrative law judge erred in his discovery rulings (i.e., permitting the NJDEP’s late expert report but barring the claimant’s response) and misperceived critical facts in the record in connection with the NJDEP expert’s conclusions. The arbitrator’s rejection of the claimant’s supplemental expert report and the misperception of critical facts required a remand. The importance of the result is not so much in the reasoning as it is in the process; the court’s opinion is rife with discussions of the NJDEP’s conduct and fundamental issues of fairness. This suggests that claimant, rather than highlighting the intricate technical facts of the case, instead likely focused on the significance of Superstorm Sandy and the fundamental unfairness of the NJDEP’s handling of the claim at the administrative level. By relying on these fundamental fairness and due process grounds, the claimant made a compelling case that otherwise would have been bogged down in technical jargon and administrative regulations. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

Taylor Mitarotonda Senior Associate Long Island tmitarotonda@wcmlaw.com +1 516 240 5938 Professional Experience Taylor Mitarotonda litigates general liability actions including personal injury and premises liability cases. Taylor’s work includes all aspects of these cases, including fact analysis and investigation, as well as drafting pleadings and motions. Prior to joining WCM, Taylor started her career as an Assistant District Attorney at the Kings County District Attorney’s office. While at the DA’s office, Taylor litigated pre-trial hearings and indicted violent crimes based on Grand Jury investigations. After leaving the Kings County District Attorney’s, Taylor gained civil experience at Heidell, Pittoni, Murphy & Bach, LLP where she represented and defended major New York City area Hospitals in all stages of litigation where allegations included complex matters involving professional liability and medical malpractice. Honors and Distinctions Rising Star, 2023 News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education JD, New York Law School BA, Siena College Bar Admissions New York

News Garbage Can-not a Cause of Action (NY) May 11, 2017 < Back Share to: When an accident occurs and someone has an unfortunate injury, must someone else always be responsible? A creative lawyer can theorize a duty that has been breached in almost any scenario. However, whether they can raise that theory beyond speculation is the issue. At the end of the day, it depends on what facts can be proven to support the theory. In Latuso v. Maresca, the plaintiff commenced a personal injury action arising out of a motorcycle accident allegedly caused by an errant garbage can that had blown into the roadway. When he swerved to avoid it, his motorcycle contacted sand on the roadway causing him to lose control and hit a tree on the defendants’ property. Seeking a culpable party, the plaintiff concluded that the defendants had to be negligent for placing their garbage can on a berm near the roadway in windy conditions. The defendants countered that they had not created nor did they have notice of the condition of which the plaintiff complained. While the defendants did not persuade the motion judge who denied summary judgment, the Second Department was swayed and reversed finding that there was no triable fact citing the principle that “mere conjecture, suspicion or speculation is insufficient to defeat a motion for summary judgment.” Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News A Guidepost in the World of Nazi Restitution (CA) September 28, 2018 < Back Share to: The issue of provenance in the art world in the context of Nazi restitution can be a thorny one. The Ninth Circuit recently issued a decision which may give actors in this marketplace more certainty. Von Saher v. Norton Simon Museum of Art at Pasadena concerns two 16th Century Dutch masterpieces titled “Adam” and “Eve” by Lucas Cranach the Elder. The Cranachs were purchased by a Dutch art dealer named Jacques Goudstikker in 1931 and became his firm’s property, but, in May 1940, Goudstikker and his family fled the country ahead of the Nazi invasion. Hermann Göring acquired all of the firm’s works in a forced sale with the help of an accomplice. Following the war, the Allies returned the works to the Dutch government, which in turn issued a series of decrees setting up a restitution process for those who lost property during the war. The deadline to submit a claim was 1951. With the advice of legal counsel, Goudstikker’s widow formally waived any claim to the Cranachs. The Dutch government ultimately sold the works in 1966 to an individual named Stroganoff to settle a restitution claim of his own. Stroganoff subsequently sold the piece to the Museum in 1971. Von Saher, Goudstikker’s daughter-in-law attempted to recover the Cranachs and made applications to the Dutch government in 1999 and 2001. However, the Dutch government concluded that, under the rules of the restitution process, Goudstikker’s widow’s informed waiver validated the sale, and converted the works into enemy property. In turn, enemy property became property of the state, who could sell such property as a form of compensation for damages in the war. Her remedies in Holland exhausted, Von Saher sued in California to recover the Cranachs. After years of litigation, the Ninth Circuit affirmed summary judgment primarily relying on the act of state doctrine, which is a rule of decision requiring that “the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.” Evaluating the processes established and followed by the Dutch government, the Court concluded none of the potential exceptions applied, and it would be improper to declare invalid official acts of the Dutch government in its own territory. As a matter of law, the Dutch government had acquired good title to the Cranachs in 1951 and passed good title to Stroganoff in the 1966 sale. While each restitution case requires fact-specific analysis, this case provides some helpful predictability. In the event provenance is potentially impacted by Nazi activity, United States Courts are likely to honor title decisions and restitution processes issued by other jurisdictions should such a ruling exist in the subject piece’s history. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto by email with any questions. Previous Next Contact

News It’s Just Part of the Game: Plaintiff Assumes Risk with Collision at Third (NY) April 23, 2021 < Back Share to: In Infant v. Loisaida Inc, plaintiff, a thirteen-year-old, was injured when, as he was fielding at third base in a baseball game, a baserunner slid into the base and collided with his left shin. Infant plaintiff brought suit alleging negligence of the league for his injuries. Defendants argued that the plaintiff assumed the risk, as he had played baseball for seven years. The lower court dismissed the case against the defendants and plaintiff appealed. The Appellate Division, First Department affirmed the lower Court’s decision under the doctrine of assumption of risk, as knew the inherent risks of the game. He was injured in a common play in baseball. The Court rejected plaintiffs' argument that the baserunner's metal cleats created an enhanced or concealed risk that was not assumed. The little league rules that defendant was required to follow permitted the wearing of such cleats, and both the 13–year–old infant plaintiff and his father testified that they observed the baserunner wearing metal cleats. Plaintiffs have not shown that defendant failed to provide safety equipment that would have prevented the inherent risks. Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News COVID Court Ruling (NY) December 23, 2020 < Back Share to: Adding to the quickly growing body of COVID-related insurance case law, a New York federal judge recently held that an art gallery could not recover financial losses due to government-mandated closures, finding that there was no “direct physical loss” as required by the policy. The Guy Hepner art gallery in Chelsea had a policy with Sentinel Insurance Company which contained a “business income” provision, which covered losses due to a closure of its business caused by the “direct physical loss of or damage to” its property. Mirroring arguments made by other insureds across the country, Guy Hepner argued that the phrase “direct physical loss” should be read to encompass the insured’s inability to use the premises for its intended purpose. Unconvinced, Judge Lorna G. Schofield held that: "Nothing in the complaint plausibly supports an inference that COVID-19 and the resulting civil orders physically damaged plaintiff's property, regardless of how the public health response to the virus may have affected business conditions for plaintiff.” In so holding, Judge Schofield pointed to a 2002 First Department decision in Roundabout Theatre Co. v. Continental Cas. Co., which held that the insured could not recover for business interruption losses when the block where its business was located was shut down due to a construction accident. Judge Schofield also denied Guy Hepner’s claim for coverage under the policy’s Civil Authority provision, holding that “the complaint does not plausibly allege that the potential presence of COVID-19 in neighboring properties directly resulted in the closure of plaintiff's properties; rather, it alleges that closure was the direct result of the risk of COVID-19 at plaintiff's property." While there are now over 100 cases across the country addressing insureds’ business interruption losses resulting from COVID shutdowns, this is only the second case in New York to have done so. Like the other decision, a December 11 order dismissing Sparks Steak House’s claim for coverage, Guy Hepner follows the vast majority of courts around the country in holding that such losses are not covered under similarly worded policies. Thank you to Doug Giombarrese for his contribution to this post. Please contact Colleen Hayes with any questions. Previous Next Contact

News Dear John Doe (PA) February 22, 2019 < Back Share to: Don’t forget about John Doe when appealing trial court orders holds Pennsylvania Superior Court. In William Massaro v. Tincher Contracting, LLC, Kenneth E. Tincher II, & John Does 1-10, William Massaro (“Massaro”) sued Kenneth Tincher and his contracting company, Tincher Contracting, LLC (together, “Tincher”) for breach of contract, breach of implied warranties, and unfair trade practices relative to the build of Massaro’s home. Tincher successfully moved for summary judgment on all counts at the close of discovery, and an order was entered dismissing Tincher, but not the John Doe defendants, from the case. Massaro appealed the trial court’s order. However, the Pennsylvania Superior Court quashed the appeal. In reaching its conclusion, the Court held that Pennsylvania’s appellate courts have jurisdiction over only final orders. It is established in the Commonwealth that final orders are those judgments that dispose of all claims and all parties. If any claim remains unresolved even after a judgment, then the order is not final, and it cannot be appealed. Here, the grant of summary judgment, the Court concluded, did not resolve the case as between Massaro and the John Doe defendants and, thus, was not final. Thus, while John Doe defendants are easy to overlook, this case shows that they should not be whenever an attorney is assessing appellate court jurisdiction. Thanks to Robert Turchick for his contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact