Wade Clark Mulcahy LLP

News Expert Evidence January 15, 2008 < Back Share to: Reminding us that not all experts are right for the case in which they are hired and should be challenged where appropriate, a Nassau County Supreme Court judge has refused to allow an engineer with expertise in "foundations, building structures, marine and heavy construction" to testify that a plastic restaurant chair was defective. Haring v. Still Waters. Previous Next Contact

News City Sidewalks, Defective Sidewalks, Dressed in Holiday Style (NY) December 23, 2019 < Back Share to: In Rizzo v. City of New York, the plaintiff was injured when she tripped and fell on the sidewalk in front of a residence. The plaintiff commenced an action to recover damages for personal injuries against the homeowners and the City of New York. In response, the homeowners moved for summary judgment seeking to dismiss the complaint. However, their motion was ultimately denied by the Bronx County Supreme Court. In their motion for summary judgment, the homeowners alleged that they were exempt from the statutory liability imposed by the Administrative Code of the City of New York §7-210(b) because their property was an owner-occupied, two-family residence and there was no evidence showing that they made special use of the area. Further, the homeowners also made a prima facie showing that they did not cause or create the alleged defect. The homeowners supported their claim by submitting deposition testimony where they denied that they attempted to repair the area before the accident. Additionally, the homeowners submitted testimony from the City of New York's witness who attested that the property records from two years prior and the accident date were searched and no permits for sidewall repairs were found. In opposition, the plaintiff raised a triable issue of fact when she provided photographic evidence that there was a patched area on the portion of the sidewalk where she allegedly fell. Further, the plaintiff provided evidence that the City did not undertake any repairs until after the plaintiff's accident. The Appellate Division, First Department held that the defendants' denials that they repaired the sidewalk before the accident presented a credibility issue that could not be resolved on a motion for summary judgment. This decision serves as an important reminder that credibility issues raise a triable issue of fact and may defeat a motion for summary judgement. Thanks to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News WCM Is Pleased to Welcome Two New Counsel March 9, 2023 < Back Share to: WCM is pleased to welcome Craig Briggs and Maurice Waller, both to the rank of counsel in our Pennsylvania office. Craig is an experienced trial attorney with expertise in personal injury defense of high-profile clientele, construction litigation, and commercial litigation in both the state and federal courts. His practice focuses on complex, large exposure cases. Maurice is a skilled litigator with over two decades of experience in insurance defense and complex litigation that included a judicial clerkship with a Chief Justice of the Supreme Court of Pennsylvania. His practice focuses on defense of complex general liability claims and premises liability claims. Craig and Maurice present a strong addition and significant trial experience to WCM’s defense practice. Previous Next Contact

News Spotlight on Broadway Theater's Duty to Pedestrians (NY) November 8, 2018 < Back Share to: A theatergoer forced into the street due to a crowded lineup loses her bid to be compensated for her injuries that occurred not on that crowded sidewalk, rather in the street. The First Department has upheld a Manhattan Supreme Court Justice's grant of summary judgment to defendant landowner in Quigley v Nederlander Org., Inc, where plaintiff injured in front of a Broadway theatre. Plaintiff testified that upon arriving at the theatre, she and her group were directed to join the line to enter the building. As plaintiff followed her group to the back of the line, she stepped onto the street and her heel was caught in a crack between two metal plates causing her to fall. Plaintiff alleged that the theater was negligent because she forced to maneuver her way through a crowded sidewalk onto the street. Defendant theatre owner, Nederlander Organizations, Inc. d/b/a The Lunt-Fontane Theatre, established entitlement to judgment as a matter of law. Defendant was not on notice of any dangerous crowding condition or of a hazardous condition on the street close to the area where patrons stood in line. Notably, plaintiff did not identify that an overcrowding condition restricted her movement or that defendant directed her to walk on the street. Plaintiff acknowledged that the sidewalk traffic was made up of pedestrians and patrons and that the crowd was tame. The court noted that, even if the entire width of the sidewalk had been overtaken by the crowd, defendant owner still could not be liable for plaintiff’s injuries absent prior notice of a dangerous condition. Further, it was unforeseeable that directing plaintiff to join the line would have placed her in harm’s way. Thus, since plaintiff was unable to raise a triable issue of fact as to defendant’s negligence, the First Department upheld summary judgment, based on evidence showing that plaintiff’s own culpable conduct in attempting to strategically maneuver her way through the crowd and ultimately caused her injuries. We see an increasing number of cases involving pedestrians who claim injuries due to sidewalk configurations. This case clarifies the landowner's duty for future litigation. Thanks to Theresa Dinh for her contribution to this post. Previous Next Contact

News City of NY expects lawsuit from "Displaced Boaters" September 5, 2012 < Back Share to: Abandon Dinghy! A day out on a small boat, while a lovely way to spend a warm afternoon, has its pitfalls. Boats are expensive to maintain, and one must always be cognizant of suddenly bad weather. Apparently, Mr. and Mrs. Higgins can add "beware of rogue NYPD boats" to the list. On August 20, 2012, John Higgins and his wife Mary Ann were forced to jump from their small dinghy into Jamaica Bay when they observed an NYPD boat heading straight towards them. Immediately after jumping from their boat, the NYPD vessel crashed into their boat. It is unclear whether their eventual suit will involve any claims beyond property damage. If not, the City would be wise to settle this matter without much haggling, seeing that the Higgins family likely saved the City a sizable personal injury settlement by jumping from the dinghy, rather staying on board for the crash. Thanks to Brian Gibbons for this contribution. Previous Next Contact

Rightly or wrongly, hotels and stores are held to a higher standard. Judges and juries expect more – especially if the hotel or store is a name brand defendant. And this reality is compounded by the sheer breadth of claims a hotel or store can face – everything from the common slip/trip and fall all the way through to data breaches, wrongful imprisonment, discrimination and sexual assault. WCM’s attorneys have seen all of these kinds of cases and we focus on making sure that you have the information you need so you can assess the good and bad of your case and manage your risk appropriately. And if the time comes for trial, our experienced trial lawyers will tell your story to a judge or jury. Retail & Hospitality Rightly or wrongly, hotels and stores are held to a higher standard. Judges and juries expect more – especially if the hotel or store is a name brand defendant. And this reality is compounded by the sheer breadth of claims a hotel or store can face – everything from the common slip/trip and fall all the way through to data breaches, wrongful imprisonment, discrimination and sexual assault. WCM’s attorneys have seen all of these kinds of cases and we focus on making sure that you have the information you need so you can assess the good and bad of your case and manage your risk appropriately. And if the time comes for trial, our experienced trial lawyers will tell your story to a judge or jury. Practice Lead Download Download

News Jury Finds Against Building Owner in 5 Pointz VARA Case November 9, 2017 < Back Share to: 5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals. The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects. But eventually Wolfkoff decided to sell the warehouse to housing developers. The artists filed suit under Visual Artists Rights Act (VARA) in Cohen v. G&M Realty. VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes. VARA grants two primary rights: The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work. The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti. Judge Frederic Block, in federal court in Brooklyn, 5 Pointz TRO decision, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute. Last month the case went to trial, and this week the jury returned its verdict, finding in favor of plaintiff. The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.” It seems they reached different decisions for different works, and awarded a variety of damages. The entire verdict should be released shortly. And there is an interesting quirk: the parties agreed the jury verdict will be "advisory" and that the Judge will render the final decision -- so we will be certain to report in the future on the final outcome. Please e-mail Mike Bono with any questions or for more information. Previous Next Contact

News New FSMA Rules Still in Limbo. May 4, 2012 < Back Share to: The Food Safety Modernization Act (“FSMA”) was supposed to result in a dramatic restructuring of the US food industry. And someday soon it might. But to implement its strategic vision, tactics (i.e. rules) need to be implemented. The four key rules (for preventative controls for food facilities, preventive controls for animal feed facilities, the foreign supplier verification program and the produce safety rule) were supposed to be ready for comment in January. But, the proposed rules have yet to be published by the White House Office of Management of Budget's Office of Information and Regulatory Affairs. The cause of the hold-up is unknown, but in this election cycle (and given Congress’s unwillingness to fund the FSMA), our guess is that politics (and not in the good Artisotelian sense) is to blame. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News While Use Of Man-Lift Results In Death, Employer, Repairer, Inspector and Manufacturer Not Liable October 9, 2008 < Back Share to: In Altinma v. East 72nd Garage Corp et al, plaintiff’s decedent sustained fatal injuries when he was allegedly pinned beneath a single-person vertical transportation device called a man-lift while working at Somerset Garage in Manhattan. Plaintiff brought this action against East 72nd, the garage license holder, Ace Overhead Garage Door Inc, the entity that repaired the man-lift on an as-needed basis and Charles Calderone Associates Inc, the entity that performed annual inspections of the man-lift. Multiple third-party actions were commenced, including an action in strict products liability against Humphrey Man-Lift Corp, the man-lift manufacturer. All of the original parties and Humphrey moved for summary judgment. The trial court granted East 72nd summary judgment as against plaintiff, but denied summary judgment as to cross-claims. Humphrey was also awarded summary judgment and all of the original parties appealed. The Appellate Division, Second Department reversed the trial court’s decision and granted summary judgment to Ace and Calderone and affirmed the trial court’s decision as to East 72nd and Humphrey. Unpersuaded by plaintiff’s arguments that Ace and Calderone may have in the performance of their duties failed to properly inspect or warn so to “launch a force or instrument of harm,” the Appellate Court found as a matter of law they did not owe a duty to the non-contracting plaintiff. For East 72nd, the trial court correctly found the decedent to be a special employee and dismissed the action pursuant Workers’ Compensation Law §11. However, since the decedent suffered a grave injury, co-defendants’ cross-claims for indemnification and/or contribution remained viable. Lastly, since there was no triable issue of fact as to whether Humphrey marketed the man-lift that was not reasonably safe or that the alleged defective design of the man-lift was a substantial factor in causing plaintiff’s injury, the decision to grant Humphrey summary judgment was affirmed. http://www.nycourts.gov/reporter/3dseries/2008/2008_07202.htm Previous Next Contact

News WCM Welcomes Three New Partners September 1, 2023 < Back Share to: WCM is pleased to announce that effective September 1, 2023, Carol Kotsinis, Carl Schaerf, and Gary Smith, formerly of Schnader, Harrison, Segal & Lewis LLP, have joined WCM as Partners. Carol has two decades of experience litigating and advising clients on a variety of product liability, general liability, municipal law, motor vehicle, construction defect, premises liability, toxic torts, and commercial matters. She handles matters through trial in both state and federal courts in New York and New Jersey and has extensive mediation and arbitration experience. Carl has focused his legal career on products liability, general liability, commercial litigation, and defense of allegations of professional malpractice in New York and New Jersey. He has extensive litigation experience at both the trial and the appellate levels, including several prominent verdicts and published appellate decisions. He also has litigated numerous environmental disputes in state and federal court. Gary is a civil litigator who handles all aspects of civil and commercial litigation in state and federal courts throughout New York, New Jersey and Pennsylvania. His broad civil litigation experience includes prosecuting and defending appeals, claims for breach of contract, insurance matters, employment disputes, claims for disability discrimination, negligence and mass tort claims. Gary has developed significant credentials in the defense of general liability and casualty, as well as asbestos claims. WCM looks forward to continuing to grow our practice, in partnership with Carol, Carl and Gary. Previous Next Contact

News Allstate’s “Collapse” Provision is Sturdy on Appeal (NY) April 3, 2019 < Back Share to: The Second Circuit recently ruled, across three similar cases, that the collapse provision within an Allstate Insurance Co. policy doesn’t cover the cost of fixing cracking in a home’s basement walls due to a defective concrete foundation. This ruling affirmed a lower Court’s decision to deny coverage to three Connecticut homeowners. Three cases filed by Allstate Policy Holders were the first of their kind to reach the federal appellate court. The basis for the lawsuits were Allstate’s denial of coverage pursuant to a clause that disclaims coverage for incidents that stem from faulty concrete used to pour the foundations for thousands of homes in Connecticut. Those homes foundations are now slowly collapsing and the cost of repair is significant. A panel of the Second Circuit held “the collapse provision in the Allstate homeowner’s insurance policy at issue here does not afford coverage for basement walls that exhibit signs of deterioration but that have not collapsed suddenly, accidentally, and entirely, as required by the policy.” The cases are Valls v. Allstate Insurance Co., case number 17-3495; Nancy E. Carlson et al. v. Allstate Insurance Co., case number 17-3501; and Alan D. Lees et al. v. Allstate Insurance Co., case number 18-007, all in the U.S. Court of Appeals for the Second Circuit. The cases serves as a reminder to homeowners and brokers to carefully read a policy of insurance during the procurement process, and the bring potential issues regarding concerning clauses to light with the broker or carrier before agreeing to the policy. Easier said than done, but here, the exclusionary language in the policy was clear. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News NY: Nine Years too Long to Vacate a Court Order April 18, 2012 < Back Share to: In Abrams v. Berelson, the defendant hired the plaintiff to clean her mother’s house after her mother passed away. As they were cleaning the house, the plaintiff’s coworker found a gun in the closet and accidentally shot the plaintiff. Plaintiff sued the defendant, arguing actual or constructive notice of a dangerous condition in the home. The lower court granted the defendant’s summary judgment motion in 2000, finding that the plaintiff had failed to raise an issue of fact as to actual or constructive notice. Nine years later, the plaintiff located his former coworker and obtained an affidavit stating that the gun was in a large box in the closet and that it would have been impossible for someone not to notice the gun upon opening the closet. The lower denied the plaintiff’s motion to renew/reargue, finding that the plaintiff failed to demonstrate a reasonable justification for his failure to obtain this new evidence sooner. Moreover, the plaintiff waited six months after obtaining the affidavit to make his motion to renew. The Second Department affirmed the lower court’s decision. The Appellate Court also noted that the affidavit did not present issues of fact regarding the defendant’s notice. The defendant would only be liable if she had actual or constructive notice of a loaded gun in her mother’s house. The coworker’s affidavit simply showed that the defendant might have had notice of a gun in the house, which was not a dangerous condition. Thanks to Georgia Stagias for this post. For more information email Denise Ricci at dricci@wcmlaw.com .   Previous Next Contact