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News The Big Legal Problem in NYC? Bad Trees. May 15, 2012 < Back Share to: When you think of New York City, capitol of the universe, you probably think of such things as skyscrapers, crowds, hot dogs and the Yankees. But what you probably don’t think of is trees. Yet it is trees that are causing an increasing number of legal headaches for the Big Apple. NYC has approximately 2.5 million trees in the City’s parks and streets and there are plans to plant 1 million more over the next few years. The problem is that, as a result of poor training and a lack of budget funds, the trees are not being properly monitored for damage/disease or other problems. Thus, over the last 5 years, 49 people have been injured and 2 people have been killed by falling trees. Certainly, these are not enormous numbers, but when the NYT runs a front page essay on the problem (and cites trial and deposition testimony) you can bet that the plaintiffs bar is paying attention. You can also surely bet that the Mayor’s office is paying attention – might a change to tree responsibility be around the corner (similar to the sidewalk liability changes of 2003)? Stay tuned to find out. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Google Images Insufficient In Attempt To Prevail On Liability (NY) August 12, 2021 < Back Share to: In Robinson v. Hess Retail Stores, LLC ,the Appellate Division, Second Department addressed the Supreme Court’s denial of plaintiff’s summary judgment motion on the issue of liability. Plaintiff alleged personal injuries when she tripped over a hole on the sidewalk abutting defendants’ premises. Plaintiff eventually moved for summary judgment contending the defendants were negligent in failing to maintain the sidewalk at issue. The court stated, “Administrative Code of the City of New York §7-210(a) "imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure". "However, Administrative Code of the City of New York §7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable". Thus, to prevail on a motion for summary judgment, a plaintiff must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect. The court mentioned that plaintiff’s expert 1) never visited the accident site and 2) relied on goggle images which were in poor quality, and as such, the images were insufficient to establish constructive notice. Therefore, the Appellate Division held that the Supreme Court properly denied plaintiff’s motion seeking summary judgment on the issue of liability. This decision serves as a reminder to closely evaluate an experts report and see exactly they relied upon when making their opinion. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Starbucks v. Charbucks: New Standard for Trademark Dilution (NY) December 7, 2009 < Back Share to: The defendant is a small, New Hampshire based coffee company that developed a dark roast they decided to call Charbucks blend. Starbucks didn’t like the name and sued, and its primary claim was for "dilution" due to "blurring." Generally, dilution by blurring occurs when a mark or trade name is so similar to a famous mark that it impairs the distinctiveness of the famous mark. Hypothetical examples of blurring cited by other courts include Dupont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, and Bulova gowns. During a bench trial in federal court of Starbucks Corp. v. Wolfe’s Borough Coffee, a consumer research scientist testified that a study he performed revealed -- not surprisingly -- that most people think of Starbucks when they hear the name Charbucks. The Court, however, dismissed the Complaint. While the appeal was pending, Congress passed the Trademark Dilution Revision Act of 2005 (TDRA), which provided that the owner of a famous, distinctive mark is entitled to an injunction when the use of the offending mark is “likely to cause dilution." The TDRW was passed in response to a Supreme Court ruling that held “actual dilution” must occur in order to establish a claim. The Starbucks case was remanded back to the trial court but the outcome was the same, and the Complaint again dismissed. However, on appeal, the Second Circuit held the trial court incorrectly used the pre-TDRA standard that required a “substantial similarity” between the marks for a plaintiff to prevail on a dilution claim, as opposed to the “likely” standard in the new statute. The district court also erred by disregarding the defendant’s intention to associate with Starbucks because there was no “bad faith” – an unnecessary element. Further, the district court should have credited the Starbucks study that showed more than 30% of consumers associated Charbucks with Starbucks, even though very few confused the two names. The appellate court rejected any claims that the Starbucks name was “tarnished” however. The case was sent back to the district court to consider the appropriate standard. We expect the outcome will be the same. But the appellate court made clear that TDRA has diluted the standard for dilution claims. http://www.ca2.uscourts.gov/decisions/isysquery/e4be4a5e-b207-4f59-ab0e-2250903934cc/4/doc/08-3331-cv_opn.pdf Previous Next Contact

News Cyberattack Might Not Be War-Worthy < Back Share to: War risk exclusion has been included especially in commercial property insurance policies for a long period of time. Recently, a New Jersey Appellate court addressed the modern application of the war risk exclusion. Plaintiff Merck & Co., Inc. (“Merck”), a multinational pharmaceutical company based in New Jersey, believed it was entitled to insurance coverage under the “all risks” property insurance policies issued by multiple defendants after a cyberattack damaged thousands of Merck’s computers in its global network. The subject cyberattack was caused by a malware that started from a Ukraine accounting company used by Merck that processes invoices and financial data to the Ukrainian government. Defendants denied coverage under the “Hostile/Warlike Action” exclusion within the policies. Merck & Co. v. Ace Am. Ins. Co ., 475 N.J. Super. 420 (App. Div. 2023). The property coverage clause states: “This policy insures against all risks of physical loss or damage to property, not otherwise excluded in this policy, while at an Insured Location except as hereinafter excluded.” Physical loss is defined as “any destruction, distortion or corruption of any computer data, coding, program or software except as excluded specifically in clause 6.M., Electronic Date Recognition Exclusion, and as hereinafter excluded.” Under New Jersey law, insurance policy exclusions are construed narrowly. The Appellate court ruled that the plain language of the Hostile/Warlike exclusion does not apply to a cyberattack on a non-military company that services non-military consumers, even if the alleged cyberattack was initiated by a private actor or a “government or sovereign power.” Further, the Court dived into the history behind the war risk exclusion. The purpose of the war risk exclusion is to “eliminate the insurer’s liability in circumstances in which it is impossible to evaluate the risk.” Considering the history and intent of the war risk exclusion, the Court pointed out that the cyberattack at hand was not sufficiently linked to a military action in order for the war risk exclusion to apply. Merck and Co. Inc. v. Ace American Insurance Company .pdf Download PDF • 320KB Previous Next Contact

News A Stairway May Constitute a Safety Device Under NY's Labor Law September 23, 2010 < Back Share to: In Ramirez v. Shoats, 2010 N.Y. Slip Op 06550, plaintiff was injured when a piece of corrugated metal covering an unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall from the second floor to the basement level of a building under construction. Plaintiff sought relief under Labor Law § 240(1), which provides that the owner of the premises can be held liable for failure to provide adequate safety devices for workers. The issue at hand was whether a permanent, yet unfinished stairway can constitute a safety device under the statute. In a 3-2 split decision, the Court held that the stairway was the plaintiff’s sole means of access to and from his work area and thus was a safety device within the meaning of the statute. The dissenting opinion noted that temporary ladders were on site which provided alternative means of descent and, in any event, prior case law in New York has determined that “under no construction of the statute could a permanently installed stairway, used by the plaintiff as a place of passage, be deemed to be a scaffold, hoist, stay, ladder, sling, hanger, block, pulley, brace, iron or rope.” Ryan v. Moerse Diesel, Inc., 98 A.D. 615 (1983). Unfortunately it seems that New York courts, yet again, have extended the grasp of the Labor Law. http://www.nycourts.gov/reporter/3dseries/2010/2010_06550.htm Thanks to Chris O'Leary for his contribution to this post. If you would like more information about this case or WCM's Labor Law practice, please contact mbono@wcmlaw.com Previous Next Contact

News Court Determines Discovery Needed on Alter Ego Defense (NY) January 6, 2017 < Back Share to: In Pringle v. AC Bodyworks & Sons, Inc., decedent was fatally crushed by an unmanned, flatbed truck that unexpectedly moved forward, pinning him against a wall. At the time, decedent was working on the truck as an auto detailer in the employ of AC Bodyworks & Sons, Inc. The truck was owned by defendant, AC Bodyworks & Sons, LLC. In September 2014, the administrators of decedent's estate applied for workers' compensation benefits and received an award for his work-related death. Thereafter, they commenced an action against, among others, AC Bodyworks & Sons, LLC, to recover damages for his wrongful death. AC Bodyworks & Sons, LLC moved for summary judgment asserting that the claim was barred by the exclusivity provision of Workers' Compensation Law § 11. Although documents established that AC Bodyworks & Sons, Inc. was decedent's employer on the date of the accident, AC Bodyworks & Sons, LLC contended it was also shielded from this action because it was a dissolved, predecessor entity that transferred "all ownership and operation of the business, including ownership of all business vehicles" to its successor, AC Bodyworks & Sons, Inc. The Supreme Court granted the motion, holding that this exclusivity provision extended to defendant and rejecting plaintiffs' contention that the motion was premature. On appeal, the court held that AC Bodyworks & Sons, LLC’s motion should have been denied as premature. "A determination as to whether two entities are alter egos of each other requires a far more detailed record than is present here.” Notably, defendant proffered no documentary proof of any transfer of assets between the two entities, while plaintiffs furnished admissible proof in the form of certified records from the Department of Motor Vehicles indicating that defendant obtained title to the truck 10 weeks after dissolution, and put new license plates on it 16 months after dissolution, and held title and registration on the date of the accident. As such, the court found that there were questions of fact as to whether the title and registration reflected administrative errors or, as suggested by plaintiffs, the continued operation of defendant as of the date of the accident. The court determined that discovery was needed to review decedent's employment records and documents substantiating the relationship between the two entities and the transfer of assets from defendant to AC Bodyworks & Sons, Inc., as well as deposition testimony. The decision was therefore reversed. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono if you would like more information.   Previous Next Contact

News Snow Accumulation Falls Short for Plaintiff in Negligence Case (PA) September 27, 2019 < Back Share to: In Hare v. Mark Zaffino, dba Mark Zaffino Snow Removal, the Pennsylvania Superior Court found that appellee did not breach his duty to clear snow and ice after appellant fell during a snowstorm. Appellee Mark Zaffino was hired to provide snow removal services at Cobham Park Tank Farm in Warren, Pennsylvania. Under his contract, Zaffino was expected to plow snow from the roadways surrounding the farm before 7 a.m. or following an accumulation of three feet. In January 2015, there was a snowstorm that led to a steady accumulation of snow. Appellant James Hare worked for the property owner of the farm and was walking down the roadway when he fell on the snow and sustained a fracture. Hare asserted that Zaffino had not upheld his duty to abide by the snow removal contract and was negligent in allowing the snow to pile up as it did. On motion for summary judgment, the lower court found for Zaffino because of the hills and ridges doctrine. On appeal, the Hare raised two arguments: (1) that the hills and ridges doctrine should not have been applied to Zaffino; and (2) that Zaffino should have been held to a higher duty of care under his contract. Under the hills and ridges doctrine, a property owner will be shielded from liability if the snow does not accumulate into what would be considered a “dangerous condition” in ridges or elevation. Accordingly, the plaintiff must show that the defendant allowed the snow and ice to accumulate into the ridges or elevations in such “size and character” that it poses a danger to pedestrians, that the property owner had actual or constructive notice of the condition, and that the condition led to the plaintiff’s fall. Hare argued that this doctrine should not apply to Zaffino because he was not the owner of the property. However, the Court found that as an independent contractor contracted to maintain a certain area, Zaffino took on the responsibilities held by the property owner and was therefore entitled to the protections enjoyed by a property owner. The Court ultimately found that Zaffino’s employee had attempted to plow the area but because of the continuing storm, the snow had continued to accumulate. Nevertheless, the accumulation did not violate the hills and ridges doctrine. Hare asserted that Zaffino must be held to a higher duty of a care for snow removal due to the specific terms of the snow removal contract. The Court rejected this argument by stating that there was no legal basis for it and concluded that even though Zaffino was under contract, there was no indication that the contract raised the standard of care owed to Hare. Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact