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News Don't Be Late - NY APP Div. Finds Tardy Defendants In Default November 1, 2010 < Back Share to: In the recent decision of Blaunt v. Berkovits, the Second Department held that the trial court had erred in excusing defendant's default in failing to timely answer the complaint. Let this be a lesson -- though parties are usually lax about a couple of days and many are willing to provide stipulations extending time to answer -- the New York State Courts are not always as forgiving. Here, they determined that though there was only a short delay in answering the complaint, the defendants failed to provide any satisfactory explanation for the delay and failed to make any showing of any potentially meritorious defense to the claims raised by plaintiff. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07707.htm Previous Next Contact

News Comparative Negligence Crushes Plaintiff’s Labor Law §241(6) Claims (NY) January 12, 2017 < Back Share to:   In Cardenas v 110127 Cabrini Apts. Corp., 2016 NY Slip Op 08835 (2d Dept. 2016), plaintiff was injured when the ladder he was using became unlocked, causing him to fall and sustain injuries. Plaintiff claimed that he notified his employer of the problem prior to the accident but was told to continue using the ladder anyway. Plaintiff commenced suit against the building owner and managing agent as all claims against his employer were barred by the Workers Compensation law. All parties moved for summary judgment. The lower Court granted plaintiff’s motion in its entirety and denied the defendants motions. On appeal, the Court held that plaintiff’s continued usage of the ladder, despite having knowledge of a defect, created a question of fact as to plaintiff’s comparative negligence. The Court determined that since plaintiff failed to meet his burden in showing that he was free from comparative negligence, that the defendants motions as to Labor Law §241(6)should have been granted and reversed the lower court’s decision. Though Labor Law §240 was still an issue in this case, the Court has shown that plaintiff must prove that he was free from fault to succeed under Labor Law §241(6) and that not all Labor Law provisions are slam dunks for plaintiffs. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Limited Business Interruption Coverage in Superstorm Sandy Litigation May 19, 2017 < Back Share to: In a recent New Jersey decision regarding business interruption coverage, the Appellate Division held that plaintiff’s insurance policy only covered damage that occurred on the plaintiff’s premises, and that coverage was limited by a coverage extension endorsement. In Schultz Furriers. Inc. v. Travelers Casualty Ins. Co. of America, plaintiff operated a business selling luxury outerwear and fur, and provided garment cleaning, repair, and storage services. Schultz procured a commercial liability policy from Travelers with an October 31, 2011 to October 31, 2012 policy period. In October 2012, during Superstorm Sandy, electrical transformers were knocked down, disrupting the power supply and forcing Schultz to close its business from October 29, 2012 through November 5, 2012. Schultz filed a business interruption insurance claim and Travelers offered $2,500 while relying on the policy’s “Power Pac Endorsement,” and disclaimed coverage as to any additional loss. Schultz, seeking coverage for more than $2,500, filed a lawsuit against Travelers. The Court held that Travelers would have been required to cover actual loss of business income caused by the direct physical loss of or damage to the property at Schultz’s premises pursuant to the Business Income and Extra Expense section of the Travelers policy. However, Schultz alleged that the business loss was a result of the damaged electrical transformers offsite, as opposed to direct damage to Schultz’s premises. Furthermore, the Travelers policy contained an exclusion barring coverage for loss caused directly or indirectly by the “failure or fluctuation of power or other utility service … if the cause of the failure or fluctuation occurs away from the described premises.” The policy’s Equipment Breakdown Coverage Extension did not provide coverage for the loss, as the equipment breakdown occurred away from the premises and the extension excluded coverage for damage resulting from a windstorm. Additionally, the Court held that Travelers was correct in capping coverage for the loss at $2,500 pursuant to the policy’s Power Pac Endorsement, which provided a coverage extension for the loss of business income caused by the interruption of service to Schultz’s premises. This endorsement provided that the interruption must have resulted from direct physical loss or damage to, among other things, power supply services “not on the described premises.” The coverage extension under the Power Pac Endorsement was capped at $2,500 per occurrence. The Court found that the Power Pac Endorsement allowed Schultz’s claim while capping the amount of coverage, and that Travelers had satisfied its obligation to Schultz by paying that amount for the business interruption due to power outage. While Superstorm Sandy occurred over four and a half years ago, this case serves as a reminder that the resulting insurance litigation remains ongoing and provides useful instruction for carriers looking to fully satisfy their obligations towards their insureds while minimizing exposure by including similar endorsements and limitations in their policies with respect to business interruption coverage. Thanks to Rebecca Rose for her contribution to this post.       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