Wade Clark Mulcahy LLP

News Health Insurer's Subrogation Right Survives in New York March 15, 2009 < Back Share to: As medical costs continue to rise, the health insurer's role in personal injury actions is certain to increase. In Fasso v. Doerr, the health insurer intervened in a medical malpractice action to recoup the $780,000 it had paid for plaintiff's medical bills. The Court of Appeals held that a settlement below plaintiff's claimed damages did not extinguish the health care carrier's subrogation claim because there was still available insurance coverage. Further, an agreement between the tortfeasor and injured party cannot extinguish the health carrier's claim without it consent. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01320.htm Previous Next Contact

News PA Superior Court: Unfair Trade Practices Violation = Bad Faith? May 3, 2012 < Back Share to: In the case of Berg, et al. v. Nationwide, the plaintiffs were insured by Nationwide when their SUV was significantly damaged in an accident. The plaintiffs took their car to a preferred Nationwide vendor for repair and the car was returned after 4 months. About a year after the repair, the plaintiffs were advised (by an ex-employee) that their SUV might be subject to structural failure. Plaintiffs sued Nationwide alleging breach of contract, negligence, common law fraud, conspiracy, violation of the UTPCPL and insurance bad faith, 42 Pa.C.S.A. § 8371. The jury found for plaintiffs during the first part of a bifurcated trial, deciding that Nationwide violated the catchall provision of the Unfair Trade Practices and Consumer Protections Law. However, during part two (the bad faith part) of the trial, the trial court granted Nationwide’s motion for a directed verdict in part because it found that Nationwide's violation of the UPTCPL did not mandate or allow a finding of bad faith against Nationwide. The Superior Court overturned this decision. It held that its decision in Romano v. Nationwide had direct application to the case at hand. Romano held that a plaintiff seeking damages under the insurer bad faith statute section 8371 may, as a means to prove bad faith, introduce evidence that the insurer violated any of Pennsylvania’s insurance statutes, even if the statute does not provide for a private right of action. Here, the jury’s finding against Nationwide was not sufficient in and of itself to support a finding of bad faith, but Nationwide’s violation of the UPTCPL was held to constitute some evidence of bad faith. The Superior Court went on to explain that because there was some evidence of bad faith, a directed verdict in favor of the insurer was improper. Yet another peril for insurers to avoid in PA. Thanks to Remy Cahn for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com   Previous Next Contact

News Observing from the Sidelines Does not Create “Improper Supervision” Claim. August 5, 2013 < Back Share to: In Morales v. Longview Academy of Extreme Martial Arts, Inc., an 11 year old plaintiff was paired for training with a senior, older, heavier and taller student. The plaintiff fractured his ankle when the senior student performed a round kick that plaintiff attempted to block. At that moment, the instructor had been standing on the side of the judo mat, speaking with the plaintiff’s father while watching the class. Plaintiff sued for improper supervision, and that there was a “mismatch” between the plaintiff and the more senior student. The defendants moved for summary judgment, and submitted an affidavit of a judo expert who stated that in judo it is not against any accepted practice to pair an adult and minor student to engage in judo drills. The court found that the affidavit demonstrated that the defendants were not negligent in pairing the students. In addition, the court found that there was no lack of supervision since the instructor was observing the class while talking to the plaintiff’s father, and even had he been on the mat, it would not have prevented the injury that occurred in the normal course of training. The court granted the defendants' motion and held that the plaintiff assumed the risk of injury while participating in a contact sport such as judo. In improper supervision claims, the distance of the supervisor from the students is not the deciding factor, but whether the proximity to the students could have prevented the accident. For questions about this post please contact cfuchs@wcmlaw.com .     Previous Next Contact

News Appellate Division, Second Department Affirms Labor Law Summary Judgment Win in WCM Case (NY) July 10, 2020 < Back Share to: The plaintiff claims that he fell from a third or fourth floor balcony while doing exterior restoration work. Specifically, he testified that he was standing on a Bakers scaffold on the balcony and was wearing a harness that was hooked to a safety cable attached to the building’s façade when the scaffold wobbled causing him to fall off the balcony and to the ground below because the hook came loose. The property owner had contracted with Phoenix Building Restorers (“Restorers”) to renovate certain of the external balconies of the buildings in this complex. The property owner also separately contracted with Phoenix Bridging (“Bridging”) to do work only on the ground floor retaining wall. Bridging subcontracted out that work to plaintiff’s employer. Plaintiff sued the property owners, Bridging and Restorers, represented by WCM and, at the completion of discovery, plaintiff moved for summary judgment on his alleged Labor Law 240(1) claim. In opposition, WCM argued on behalf of Restorers that there were triable issues of fact as to the circumstances under which the plaintiff’s accident occurred, specifically as there was testimony with regard to whether the hook of his safety cable actually failed and whether he was acting outside the scope of his authority by working on the balcony since his employer was not hired to do work on the upper balconies, only the ground floor retaining wall and Restorers had not authorized him to work on the upper balconies. The Hon. Wayne Saitta of Supreme Court, Kings County agreed with WCM and denied plaintiff’s motion, ruling that there were triable issues of fact. Plaintiff appealed to the Appellate Division, Second Department, and WCM partner Nicole Y. Brown recently argued the appeal remotely in one of our firm’s first appeals in the post-COVID world. In a decision issued just before the July 4th holiday weekend, the Second Department affirmed the lower court’s decision and agreed that WCM had established triable issues of fact such that the plaintiff was not entitled to summary judgment on his Labor Law 240(1) claim. If you have any questions or comments, please contact Nicole Brown. Previous Next Contact

News Premises Liability Mode-Of-Operation Theory A Matter of Probability (NJ) October 30, 2013 < Back Share to: The mode-of-operation theory of liability for a premises liability action against a business is a tempting strategy. It absolves an injured plaintiff of the burden of proving that the business owner had notice of a dangerous condition in time to address it. As tempting as it is, it has its limitations. For one, the plaintiff must show that the alleged condition was related to the manner in which the business is conducted. Earlier this year, in February, we reported that the New Jersey Appellate Division issued an unreported decision, Cashour v. Dover Parkade, LLC, that limited application of the mode-of-operation theory where the plaintiff was unable to sustain a link between the object she slipped on and the defendant store's business operations. In that case, the plaintiff fell on a plastic bag that was in front of a store. However, she could not link the bag to the store's operations. Now the Appellate Division has issued a reported decision addressing this theory once again. In Arroyo v. Durling Realty, LLC, the plaintiff alleged that she slipped on a discarded telephone calling card left on the sidewalk in front of a convenience store. The plaintiff linked the cards to the store, noting that the phone cards were displayed on racks near the store's cash register next to the exit doors. She argued that due to the proximity of the cards to the door, the business should have foreseen that someone might buy a card, use it, and then immediately discard it on the sidewalk. With no real proof as to actual or constructive notice, the plaintiff's only chance was through this mode of operation argument. However, she had to convince the judges that "as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business." The judges were not persuaded. Since the patron would have selected the card, paid for it at the cashier, and left the store, the nexus between a self-service operation and the card on the sidewalk was too attenuated. Summary judgment was affirmed. This reported decision should help to clarify that notice is still a required proof burden for a claim against a retailer with limited exceptions. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News New York Federal Court Finds that Business Pursuits and Rental Exclusions Preclude Coverage for Bodily Injury Claims Against a Multi-Family Investment Property Owner (NY) December 30, 2021 < Back Share to: In MIC General Insurance Corp. v. Cabrera, 20 Civ. 4855, 2021 WL 5909975 (S.D.N.Y. Dec. 10, 2021), the Southern District of New York recently awarded summary judgment to an insurer based upon several exclusions in a policy issued to the owner of an investment property. The owner rented the two-family home to a total of twenty people and his tax returns reflected substantial income and tax deductions relating to the property. The owner also certified that the property was “rented” when applying for insurance and generally took care of repairs and maintenance himself. One of the tenants was injured in a slip and fall accident on the property and sued the owner in New York state court, alleging that the owner negligently failed to remove ice from a sidewalk on the property. The insurer disclaimed coverage on several grounds, including that the Business Pursuits Exclusion and Rental Exclusion applied under the circumstances. However, the insurer sought declaratory judgment but provide a courtesy defense to the owner until the coverage issues were resolved. The insurer moved for summary judgment on the exclusions. In evaluating the Business Pursuits Exclusion, the Court noted that the insurer must show that: 1) that the owner ran the premises as a business; 2) that he had a duty to keep the sidewalk safe for tenants to walk on the property which arose from the nature of the business; and 3) that the tenant’s injury resulted from the owner’s failure to carry out that duty. As to the first element, the court observed that whether an activity is a business pursuit within the exclusion under New York law depends on whether the insured “regularly engaged in a particular activity with a view toward earning a livelihood or making a profit.” To constitute a business, there must be two elements: “first, continuity, and secondly, the profit motive” (citations omitted). The court found that the insurer satisfied the first element as the owner earned income from renting the property and took care of the maintenance himself. As for the other elements, the court found that “[u]nder New York law, by virtue of renting out the [property] for profit, owed his tenants the duty…to keep common areas such as sidewalks reasonably safe.” Since the court further found that the tenant’s injury resulted from the owner’s failure to satisfy that duty, the Business Pursuits Exclusion applied to exclude coverage. The rental exclusion in the policy precluded coverage for bodily injury that arose “out of the rental or holding for rental of any part of the” property.” The exclusion contained an exception where the property was “in part for use only as a residence, unless a single-family unit is intended for use by the occupying family to lodge more than two roomers or boarders.” The court evaluated whether the “unless” clause was triggered, finding that the 19 people that lived at the property, other than the injured tenant, were “roomers.” As such, the court found that the “unless” clause was triggered, and the Rental Exclusion also applied to preclude coverage. The takeaway from this case is that insurers of residential investment properties may have grounds to exclude coverage where their policies contain business pursuits and/or rental exclusions under the appropriate circumstances. It is also important for insurers to fully understand the circumstances of each risk and to tailor their policies accordingly. Thank you to John Diffley for his contribution to this article. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Inspection Work Not Applicable Under Labor Law Statute (NY) August 25, 2023 < Back Share to: In Lauria v. Lippolis Constr., Inc., 2023 NY Slip Op 04374 (2nd Dept. 2023), a building inspector working for the Village of Port Washington was on a construction site. He lowered himself into an open excavation and then tripped and fell while inside the excavation. He subsequently filed suit against the property owner and general contractor under Labor Law Sections 200, 240(1), and 241(6). The defendants eventually filed their motion for summary judgment arguing plaintiff had no relief under Labor Law §§ 200, 240(1), and 241(6) because he was not an employee at the time of the accident. The trial judge granted the motion and the plaintiff appealed. The Second Department reasoned that in order to obtain relief under Labor Law §§ 200, 240(1), and 241(6), a plaintiff must first prove he was permitted to work on a building or structure and that he was hired by a either the owner, general contractor or a subcontractor. The Court also felt that whether inspection work falls within the umbrella of the Labor Law must be determined on a case-by-case basis, depending on the type of inspection work. The deposition testimony and evidence showed that neither the plaintiff nor his employer, the Village of Port Washington, had been hired to do any work on the construction site, and that the plaintiff was only performing a visual inspection of the excavation after the property had already been fully excavated. This case provides insight into a small caveat of Labor Law, which excludes an inspector, or someone of that profession, not hired by the property owner, general contractor or a subcontractor, who comes on to the construction site and is injured as a result of his work there. The distinction falls on whether an inspector is a “covered” person under Labor Law §§ 240 (1) and 241 (6) if “his inspections were essential, ongoing, and more than mere observation" (Dubin v S. DiFazio & Sons Constr., Inc., 34 AD3d at 627; see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]; cf. Martinez v City of New York, 93 NY2d 322 [1999]). Thanks to Ray Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News "Don't Deal with Lawyers" October 16, 2007 < Back Share to: Lawyer Elana Glatt was married recently in Manhattan and has now sued her florist for $400,000 because he allegedly substituted pastel pink and green hydrangeas for dark rust and green. These substituted flowers apparently clashed with the linens, favor boxes, and the wedding cake. The cost of the flowers was $27,000. The florist responded to the suit by saying his father told him, "Don't deal with lawyers. Maybe he was right, God bless his soul." And on a personal note, as the father of three daughters, we will be happy with any color and any bloom available, and $27,000 is out of the question. http://www.nytimes.com/2007/10/16/nyregion/16flowers.html?_r=1&ref=todayspaper&oref=slogin Previous Next Contact

News US Government Sues Dinosaur; Court Says Fossil Skeleton is like Frankenstein September 20, 2012 < Back Share to: The US Attorney’s Office recently filed a complaint seeking the forfeiture of a Tyrannosaurus skeleton. The skeleton was imported from Great Britain to Florida to a company called Florida Fossils and later auctioned in New York. The Mongolian government obtained a temporary restraining order to prevent the sale from being finalized, alleging that the Tyrannosaurus was a “bataar,” a species native to Mongolia. Pursuant to Mongolian law, fossils are considered property of the government and Mongolia is a signatory to the United Nations Convention that prohibits the smuggling of cultural property. The US Attorney’s office thus filed this forfeiture action (against the name of the property to be seized) in an effort to have the skeleton returned to Mongolia. Florida Fossils, however, moved to dismiss the complaint, alleging that a significant portion of the skeleton came from different bones already owned by the claimant that were not related to the bataar, and that the claimant had assembled different pieces into a larger skeleton. The Court, who referred to the skeleton as a “kind of Frankenstein model,” gave the Government an opportunity to amend the complaint to clarify this point as well as other issues, including whether such a dinosaur could have come from a place other than Mongolia. It will be interesting to see whether the “Frankenstein defense” works, either in this matter or in other cases involving disputes over cultural property, including art. If you have any questions about this post, please write to mbono@wcmlaw.com Previous Next Contact

News Imagine This: No World Without Color at the Dakota. July 6, 2012 < Back Share to: In Fletcher v. Dakota, Inc., an African American plaintiff sued New York’s famous Dakota building and individual defendant board members on the basis that he was discriminated against after attempting to purchase the apartment adjacent to his for the purpose of combining the two apartments. He was successful at trial and defendants appealed the trial court’s decision. In addressing the claims against the individual board of director defendants the Appellate Division, First Department clarified its own ruling in Pelton v. 77 Park Ave. Condominium, 38 A.D.3d 1 (2006). It stated that while breach of contracts will not generally give rise to individual director liability, the participation of a director in a corporation’s tort will be sufficient to give rise to individual liability. The individual director defendants further appealed the trial court’s decision based on the fact that the complaint failed to allege acts separate and distinct from those that were taken as board members. The Appellate Division upheld plaintiff’s retaliation claims against the corporation and individual defendants to the extent plaintiff alleged (1) plaintiff engaged in a protected activity by opposing conduct prohibited thereunder; (2) defendants were aware of that activity; (3) plaintiff was subject to an adverse action; and (4) there was a causal connection between the protected activity and the adverse action. Reviewing the complaint, plaintiff was able to maintain his claims against the corporate defendant, but not yet as against one of the individual director defendants, as he joined the board after plaintiff’s alleged opposition to conduct occurred. Moreover, additional defamation claims were dismissed against the corporation because the Appellate Division found that the complaint did not properly allege that, in respect of certain conduct, that the defendants “knew or should have known that plaintiff was opposing discrimination” when he made certain complaints. As a result, the Appellate Division made substantial modifications to the trial court’s order, which it otherwise affirmed. Special thanks to Alison Weintraub for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM Obtains Directed Verdict in NY Civil Court Jury Trial July 19, 2012 < Back Share to: New York, NY Associate Lora H. Gleicher obtained a directed verdict in a jury trial in a New York County Civil Court matter. In Newmark v. New York Urban Athletic League, plaintiff, an experienced volleyball player, was participating in a volleyball scrimmage on an allegedly sub-par volleyball court. Prior to his participation, plaintiff did not execute a waiver or release because the scrimmage was conducted pre-season. During the game, plaintiff was injured and he commenced suit as a result. At trial, plaintiff testified that his injury occurred because the court was not regulation size and had poor lighting. He also claimed that the use of stanchions to secure the volleyball net was improper and caused the net to sag. During an aggressive volleyball scrimmage, plaintiff jumped up to block the ball. When he did so, the opposing front-center player jumped as well, got caught in the net, and fell forward onto the plaintiff, causing the plaintiff to injure his left ankle/foot on the metal stanchion. At trial, through our cross-examination, we were able to attack the plaintiff’s credibility and prove that, contrary to his representations, he was aware of the dangers in playing volleyball and yet decided to play all the same. The trial court agreed and, before the jury got the case, granted a directed verdict in favor of our client, the New York Urban Professional Athletic League. Previous Next Contact

News WCM Wins Summary Judgment on Melted Ice Slip and Fall December 14, 2018 < Back Share to: Recently, Mike Bono & Dana Purcaro of WCM obtained Summary Judgment for their client, in a decision issued by Judge Sherman in Supreme Court, Bronx County on the matter of Diplan v. Ergas, Index #605980/2014. Plaintiff was working at the defendant’s home as a housekeeper when she slipped and fell on water on the garage floor, which was a result of a bag of ice that was recently left in the garage and had begun to melt. The bag of ice was placed in the garage earlier that day by our clients’ daughter who did not permanently reside within the home. Despite knowing that our clients’ daughter placed the ice in the garage prior to the accident, plaintiff never sought to depose her or amend their complaint to add her as a direct defendant in the action. At the close of discovery, we moved for SJ on the grounds that our clients did not create or have actual or constructive notice of the allegedly dangerous condition. We also pointed out to the court that the condition itself is not the type that would have been present for long enough to place constructive notice onto our clients. Plaintiff opposed the motion stating that our clients were responsible for the placement of the ice in the garage as it is their home and they are responsible for the negligent conduct of anyone in their home. The Court rejected plaintiff's argument, and found no triable issue of fact as to whether our clients caused the condition or had notice of the presence of melting ice in the garage. The Court also pointed out that the plaintiff failed to take testimony or amend the complaint to include the non-party daughter who put the ice in the garage despite having knowledge of her existence for several years prior to the submission of the motions. Please email Dana Purcaro with any questions. Previous Next Contact