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News NY City Unable To Escape Labor Law Liability In Crane Collapse May 20, 2013 < Back Share to: In the ongoing In re 91st Street Crane Collapse Litigation, the City recently moved for summary judgment under Labor Law § 240(1), arguing that it was neither the title owner of record for the subject premises, nor controlled the construction project at which the crane was operating when it collapsed. At issue was the City’s complicated deed for the property, in which the City granted the premises to the New York City Educational Construction Fund, subject to the conditions of the disposition agreement entered into between the City and NYCECF and also subject to the provisions of the lease between the same parties. The conveyance was structured in this way to allow the premises to be developed as a new public school and mixed-use residential/commercial space. Labor Law § 240(1) places a duty on owners, contractors and their agents. While the statute is silent on the duties of lessees, case law has construed this statute to apply to lessees who hire contractors and thus have the right to control the work being done. Here, the City argued that it had simply leased the property to 1765 First Associates through the NYCECF and, as such had no control of the property such that it would be subject to liability under the Labor Law. The trial court disagreed and in its discussion noted the court’s duty to search for a nexus or link to the party disclaiming ownership when determining whether a party has divested itself of all traces of control and consequently ownership of a subject property. The court focused on the lease language that indicated the lease would commence once the applicable City agencies had issued the necessary approval of the relevant documents that included the agreement that designated 1765 First Associates as the developer of the property. The court, therefore, held that a question of fact existed as to the nature of and basis for the City agencies’ approval. Despite this intricate web of conveyance, the fact that the City reserved the right to render final approval made it easy for the court to find a contractual connection for the City to continue exercising some control over the property, thereby potentially subjecting it to Labor Law liability. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News Stuck With the Bill – Even if You’re an Excess Carrier in New York. October 7, 2010 < Back Share to: In the case of RLI Insurance Company v. Leslie Smiedala, et al., RLI, an excess insurance carrier, commenced a declaratory judgment action in New York which it sought a declaration that, in the event that the primary insurer’s policy limits were exhausted (an event that had not yet come to pass), it would not be obligated to defend or indemnify various parties. This endeavor proved unsuccessful. As a result, the defendants sought to recover the fees they had accrued in the declaratory judgment action against the “losing” carrier. The trial court agreed and granted fees. An appeal to the 4th Department resulted. In the appeal, RLI argued that, since it had not yet paid any defense or indemnity monies in the underlying action, it could not be said to have “lost” the declaratory judgment action and thus was not obligated to reimburse the defendants. The 4th Department disagreed – http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9886142. It held that “although plaintiff's duty to defend Regional may not have been triggered in the underlying action because the primary coverage has not been exhausted, Regional may nevertheless recover its attorneys' fees from plaintiff incurred in the declaratory judgment action inasmuch as Regional was "cast in a defensive posture by the legal steps [plaintiff took] in an effort to free itself from its policy obligations.” If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Insured’s Affiliates Not Named As An Insured? Court Says No Problem. Maybe. April 1, 2016 < Back Share to: An insurance policy might list only one named insured, and no additional insureds, but according to one recent New York Supreme Court decision, that does not necessarily mean the insured’s affiliates are not entitled to coverage. In El-Ad 250 West, LLC v. Zurich American Ins., Zurich issued a builders’ risk policy to a condominium developer. After Hurricane Sandy, the developer and its affiliated companies sought coverage under the policy for additional interest paid on construction loans and lost earnings resulting from delays in selling units in the building. The policy identified only the developer as an insured and did not name any of the affiliates as a named insured or an additional insured. In fact, the policy specifically provided that “[f]or the purpose of Delay in Completion Coverage only, the Named Insured shall be shown as below… There shall be no Additional Named Insureds, unless otherwise endorsed.” Relying on that language, and the fact that the affiliates were not listed on the policy, Zurich moved for partial summary judgment, arguing that the affiliates were not covered under the policy. The court denied Zurich’s motion. In doing so, the court relied on a long line of authority recognizing that “[t]he name of the insured in the policy is not always important if the intent to cover the risk is clear.” According to the court, if the parties intended to include the affiliates as insureds, there would be coverage, even if the affiliates were not identified in the policy. Applying that principle to the facts before it, the court held that summary judgment was inappropriate because there was evidence that “Zurich’s underwriting process appears to have accounted for the affiliates, suggesting it understood coverage might extend to them.” On the surface, it appears that the court was quick to abandon the well-established rule that extrinsic evidence is not be considered in the face of an unambiguous policy provision, but that really was not the case. In El-Ad, the court was not interpreting the scope of the covered risk, but rather the identities of the parties to whom the policy applied. El-Ad should serve as an important reminder to underwriters to understand the identities of their insureds, and whether the insured claims “affiliates” within its embrace. The good news is that El-Ad is not a broad invitation to examine extrinsic evidence to rebut unambiguous policy language. Thanks to Michael Gauvin for his contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News This and That by Dennis M. Wade December 22, 2017 < Back Share to: As a student of appellate advocacy, I love to argue, attend, watch, and listen to oral arguments because I am convinced they do in fact shape the outcome of the ultimate decision. The Supreme Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on December 5, 2017. The argument lasted for more than an hour and consumed 108 pages of transcribed cut and thrust. In my post of November 9, 2017, I predicted that SCOTUS would somehow “ice over” the cake as art issue and affirm the ruling of the Colorado Civil Rights Commission which ruled that baker Jake Phillips’s refusal on religious grounds to create a specialty cake for a same sex couples’s forthcoming marriage violated Colorado’s anti-discrimination law. The argument, with sharp questions coming from both liberal and conservative justices, I believe, proves the accuracy of my prediction. Phillips’s lawyer was asked to draw fine distinctions between, for example, a baker, a florist, a make-up artist, and a chef. But I thought the most telling question came from Justice Alito, followed by Justice Breyer. And it was a question central to the warning I give to all of my colleagues who are preparing for oral argument: Be Wary Of The Concessions You Are Asked To Make. Because Justice Alito’s question with its implicit request for a concession is so telling, I quote it in full below. “Justice Alito: What would you say about an architectural design; is that entitled to - - not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work? Ms. Waggoner: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative. Justice Alito: You mean an architectural design is not protected? Ms. Waggoner: No. Architect - - generally speaking, architectural would not be protected. Justice Breyer: So in other words, Mies [van der Rohe, a famous modernist architect] or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that - - that really does baffle me, I have to say… “[bracketed reference, mine].” With one question - - and with the concession made, it seems to me that Phillips’s lawyer revealed, albeit unintentionally, that his client’s refusal to bake a specialty cake for a same sex couple had to do with the identity of the same sex couple - - and not the artistry or the message in the cake he was asked to create. In other words, having conceded that an architect under Colorado’s law could not refuse to create a design for a same sex couple, the credibility of the argument collapsed like a cake for want of the proper amount of yeast, especially when the Court baked Michelangelo and Mies van der Rohe into the cleverly designed query. In sum, having read all of the briefs and having studied the argument, I do not think SCOTUS is going to use this controversy to decide what constitutes a protected message under the First Amendment or indeed whether a cake may qualify as art. And that’s it for this This and That - - and for 2017. Best wishes for a Joyous Holiday Season and a Happy & Healthy New Year. Previous Next Contact

News Work Area By Any Other Name Would Still Be a Work Area (NY) January 26, 2017 < Back Share to: Victor Caminito was employed by a nonparty subcontractor on a 30-story building under construction that was ultimately going to be a condominium with retail space on the first floor. On the day of the accident, plaintiff spent the morning setting marble in the lobby of the building. After lunch, he was instructed by the project supervisor for the construction site, to clear out a room that was off the lobby, where many of the trades had stored their equipment and materials. In the process of removing material stored in it, plaintiff was injured when, while walking backwards with a wheelbarrow, he tripped and fell over a stack of metal studs located on the floor. In Caminito v Douglaston Dev., LLC, the plaintiff brought suit under Labor Law § 241(6) and claimed specific violations of the Industrial Code. That statute imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” contained in the New York State Industrial Code. Plaintiff's claim was predicated on Industrial Code (12 N.Y.C.R.R.) § 23-1(e)(2), which provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials”. The room where plaintiff fell was variously described as approximately 10' X 15' or 20' X 40' and had only one entrance/exit. Both plaintiff and the project supervisor testified at their depositions that the material in the room needed to be removed to complete its construction. The project supervisor testified that this room was part of the overall building construction project. Defendants moved for summary judgment to dismiss the Labor Law § 241(6) claim. Defendants argued that the area where plaintiff fell was not a “work area” but rather a storage room and thus not a work area as defined by the statute. The Court disagreed finding a question of fact as to whether the studs were scattered in plaintiff's work area. The testimony of both plaintiff and the project supervisor clearly stated that construction was going to take place in that room. Indeed, the purpose of removing the material stored in that room was to enable the construction work to take place. Although plaintiff was not actually performing his job as a marble setter at the time of the accident, under these circumstances his activities bring him within the ambit of the statute. Defendants have to be aware that scattered tools and building materials on a construction site presents a difficult fact pattern to overcome when analyzing liability under Labor Law § 241(6). Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Review All Amendments to Statutes to Ascertain Applicability May 16, 2016 < Back Share to: New York Multiple Dwelling Law §53 provides that vertical ladder fire escapes built after 1929 are unlawful. In addition, a 1948 amendment to this provision requires owners of multiple dwelling buildings to renovate these fire escapes regardless of when the fire escape was originally constructed. In Klupchak v. First East Village Associates, plaintiff climbed through the kitchen window of a friend’s Manhattan apartment onto the vertical ladder fire escape which had a gap at the edge of the platform leading to the level below. The fire escape was constructed prior in 1929. While attempting to re-enter the apartment, plaintiff’s boot heel got caught between the slats of the fire escape platform causing her to fall through the opening, landing on her back, approximately twelve feet below the platform. Plaintiff sued the building owner alleging her accident was caused by the improper operation and maintenance of the fire escape in violation of Multiple Dwelling Law §53. Defendant moved to dismiss the complaint on the grounds Multiple Dwelling Law §53 was inapplicable since it only applied to fire escapes erected after 1929. The lower Court agreed with defendant, finding Multiple Law §53 was inapplicable since the fire escape was built prior to 1929. Plaintiff moved for re-argument, maintaining pursuant to the 1948 amendment, a vertical fire escape was unlawful when annexed to any multiple dwelling, regardless of when the fire escape was built. The lower Court granted plaintiff re-argument, and upon re-argument, granted plaintiff summary judgment on this point. The Appellate Division affirmed finding that the 1948 legislature required multiple-dwelling building owners to remove and replace the vertical fire escapes with code compliant fire escapes (i.e. fire escapes with balconies and stairways) regardless of when the original fire escape was constructed. In sum, when analyzing liability under a specific statute, be sure to review the applicability of all amendments before rendering an opinion as to the extent of your client’s liability. Thanks to Caroline Freilich for her contribution to this post.       Previous Next Contact

News Assumption of Risk Doctrine Rejected in Recreational Bike Accident Case < Back Share to: Under New York’s doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to “those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” However, courts have limited the application of the doctrine in cases involving athletic or recreational activities. For example, in Alfieri v. State of New York, the plaintiff was injured when he fell from his bicycle while riding on the paved path around Rockland Lake in Rockland Lake State Park. Plaintiff had ridden into loose asphalt at the end of a crack in an asphalt patch as he attempted to go around two people walking on the path, causing his fall. In a nonjury trial, the Court of Claims found that the claim was barred by the doctrine of primary assumption of risk. The Second Department reversed, holding that the doctrine did not apply to the case. The Court observed that as a general rule, the application of assumption of the risk should be limited to “cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.” The Court found that the plaintiff’s accident did not occur in a designated venue used specifically for bicycling and was not participating in an organized group event or sponsored ride when the accident occurred. The Court further noted that the path was for public pedestrian use as evidenced by plaintiff trying to avoid people walking on it. As such, the Court held that by participating in “recreational” bicycling, the plaintiff could not be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and the doctrine of primary assumption of risk did not apply. The Alfieri decision highlights that the assumption of risk defense is not always available in cases involving recreational activities. It may not apply in cases such as this where the activity does not involve a sponsored or formal athletic event or takes place in an area not specifically designated for that activity. Alfieri v. State of New York .pdf Download PDF • 148KB Previous Next Contact

News Judge to FDA: Get Your FSMA Regulations Done Already. July 5, 2013 < Back Share to: As we have long reported, the FDA has been quite derelict in getting the new Food Safety Modernization Act regulations in place. Deadlines have come and deadlines have gone and still no guidelines. This delay has resulted in the case of Center for Food Safety, et al. v. Margaret Hamburg, et al., USDC, NDCA. There’s a history of decisions in the case that make clear the Court’s frustration with the FDA and that frustration has now boiled over. In a recent decision, the Court has ordered the FDA to publish all proposed regulations by November 30, 2013, with the comment period to end by March 31, 2014, and the final regulations to be published by June 30, 2015. We’ll see if a court order compels action where bureaucratic momentum did not. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NYAD Rules Water Damage by Artificial Means Can Render Landowner Liable October 6, 2010 < Back Share to: In Moretti v. Croniser Construction Corporation, the Second Department addressed a landowner who brought suit because an abutting neighbor caused water damage during a construction project. The defendant-landowner was awarded summary judgment, because the plaintiff failed to raise a triable issue of fact as to whether the means of diverting water, which caused the damage, was artificial, and whether the improvements were made in good faith. The Court held that a landowner can not be liable to an abutting neighbor for water damage, "provided that the improvements were made in good faith to fit the property for some rational use, and that the water was not drained onto the other property by artificial means, such as pipes and ditches." It seems that if a landowner is making improvements to his land while 1) acting in good faith, 2) not diverting water onto adjacent property via artificial means, and 3) having a rational basis for the improvements, he will be shielded from liability for a neighbor's water damage. Not surprisingly, the Court declined to comment on protection afforded landowners for "irrational" improvements upon land, nor does the Court opine on examples of what an "irrational" improvement might be. Hopefully, rational minds will prevail in the future. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06783.htm Previous Next Contact

News Sender of Text Message to Driver Not Liable for Accident (NJ) May 30, 2012 < Back Share to: Everyone knows that sending or reading a text message while you drive can cause an accident. But recently, New Jersey plaintiffs tried to extend liability to a party that sent a text message to a driver involved in an accident in Kubert v. Best. On Sept. 21, 2009, Kyle Best, age 19, lost control of his pick-up truck, crossed the yellow line and struck David and Linda Kubert on their motorcycle. Both of the plaintiffs lost a leg due to injuries sustained in the accident. The Kuberts claimed that because Best was answering a text when he lost control, Shannon Colonna, who sent the text, was “electronically present” and also at fault. They also alleged that Colonna knew or should have known that Best was driving when she sent the text. They premised their legal theory on civil aiding and abetting and forseeability and proximate cause. Evidence developed during discovery showed that the defendants exchanged 62 texts that day, and three messages within about eight minutes prior to the accident, including one text within a minute of Best calling 911 to report the accident. Defendant Colonna argued against imposing liability, as texters have no control over when, where or how recipients will read and respond to their messages. In an oral opinion from the bench, Morris County Superior Court Judge David Rand agreed, and granted summary judgment dismissing civil aiding-and-abetting claims against Colonna, finding she had no duty of care under the facts of the case. If you would like further information about this case, please write to mbono@wcmlaw.com   Previous Next Contact

News Property Damage Claim Goes Up In Smoke (NY) June 6, 2017 < Back Share to: The question of whether the contents of a disclaimer letter could limit an insurer in a later denial of a property damage claim was addressed recently by the Second Department in Swanson v. Allstate. Therein, the court determined that an insurer does not waive its right to rely on an exclusion in the policy if that exclusion was not cited in the initial disclaimer letter. Swanson owned commercial property that was vacant for six months before a fire damaged the building. Swanson made a claim for loss with its carrier, Allstate. Allstate’s initial disclaimer letter failed cite to the policy’s “vandalism” exclusion that excluded fire damages if caused by vandalism in a building left vacate for more than 90 consecutive days. Based upon the town fire investigator's report, the fire was intentionally set, and the owner had admitted to the vacancy in excess of 90 days. A lower court denied Allstate’s summary judgment motion finding that the exclusion was waived under Insurance Law 3420(d) because it was not mentioned in the disclaimer letter. However, the Second Department reversed finding that Section 3420(d) only applied to claims involving death and bodily injury, and hence, not applicable to a pure property damage claim. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Conclusory Expert's Opinion Insufficient To Stave Off Summary Judgment In Escalator Case January 25, 2008 < Back Share to: In Parris v. Port of New York Authority and Otis Elevator, 2008 NY Slip Op 00197, AD and New York Co. Index 121678/03, plaintiff claims to have suffered injuries when the escalator at the Port Authority Bus Terminal he was riding suddenly "jerked" and "pulled" causing him to fall backwards and hit his head. Defendants moved for summary judgment arguing that even if a mechanical defect existed, there were no records of prior complaints and service maintenance records equally reflected no problems. Plaintiff opposed this motion by submitting an affidavit of an expert engineer. This expert, who never conducted an on-scene inspection, averred that plaintiff's accident could have been due to warn parts. While the trial court denied summary judgment, finding a question of fact was raised by this expert, the Appellate Division - First Department disagreed, finding the expert's findings to be factually unsupported and too speculative. On an awkward note, the trial judge, Justice Rolando T. Acosta, was recently promoted to the Appellate Divison - First Department and now sits with the very judges that reversed him. http://www.nycourts.gov/reporter/3dseries/2008/2008_00197.htm Previous Next Contact