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News Clean Your Glasses at Your Own Risk February 1, 2010 < Back Share to: In Beshay v. Eberhart L.P., the plaintiff was injured when the blade from his co-worker’s saw flew off and hit his left eye. The plaintiff sued the premises owner alleging a violation of Labor Law § 241(6) based on an alleged violation of 12 NYCRR 23-1.8(a) that requires that “suitable, approved eye protection shall be provided for and shall be used by all persons while engaged in any operation which may endanger the eyes.” During his opening statement, plaintiff’s counsel stated that the plaintiff was wearing protective eye gear just before his accident, but had removed it to clean it when he was struck in his eye by the flying blade. After opening statements, the premises owner moved for judgment as a matter as law. The court granted the motion, holding that that the admission by plaintiff’s counsel absolved the premises owner of liability under Labor Law § 241(6). http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D25766.pdf Thanks to Cheryl Fuchs for her contribution to this post. Previous Next Contact

News Call Your Next Witness - Former BXDA Joshua Kirshner January 13, 2022 < Back Share to: Joshua Kirshner is a former colleague of mine from the Bronx County District Attorney Office who has been a federal law clerk in the Southern District of New York and for the past 10 years, has been a successful criminal defense in New York. And coincidentally, just as Josh and I are former Bronx D.A. colleagues, our mentors -- Ben Brafman and Dennis Wade -- were former colleagues at the NY County D.A's office. Josh joined me for a discussion on the Call Your Next Witness podcast. He recently started his own criminal defense practice, which has been both exciting and terrifying. We discuss Josh's career, what it has been like to "hang out a shingle," and also, Josh's recent "COVID-era" federal trial in the Eastern District of New York. This easily could have been two episodes, and is a great listen, particularly for any attorneys pondering starting his/her own practice. Listen to this episode here, or wherever you download podcasts. If you have questions about the podcast, or would like to be a guest, please email Brian Gibbons. Previous Next Contact

News Deemer Statute Inapplicable to Out-of-State Pedestrians (NJ) June 1, 2017 < Back Share to: New Jersey’s Deemer Statute, N.J.S.A. 17:28-1.4, applies to out-of-state drivers who are injured in accidents in New Jersey. Under the Deemer Statute, if you are an out-of-state resident and you are hurt in an accident in New Jersey, you will be subject to New Jersey’s restrictive limitation on lawsuit or “verbal threshold” if your insurance company is licensed to transact business in New Jersey. The verbal threshold places limitations on the right to recovery for injuries sustained in a motor vehicle accident. In Leggette v. GEICO, plaintiff, a Virginia resident, was struck by a N.J. licensed driver as she crossed a street in Princeton. The trial court granted defendant’s summary judgment dismissal of her declaratory judgment complaint against GEICO. Plaintiff appealed the trial court’s decision, seeking PIP benefits pursuant to the Deemer Statute, since her Virginia policy was deemed to provide standard PIP coverage while her vehicle was in this state. The trial judge concluded that the Deemer Statute was inapplicable. Plaintiff drove her Virginia registered vehicle insured by GEICO to Princeton University to visit her daughter. Plaintiff parked her vehicle and was walking across the street when she was struck by an automobile. Plaintiff settled her claims against the driver of the automobile, and then initiated a declaratory judgment action against defendant GEICO for PIP coverage to satisfy the $113,825.47 in medical bills. Plaintiff argued that GEICO was authorized to conduct business in New Jersey and was therefore legally obligated under the Deemer Statute to provide minimum standard automobile insurance policy PIP benefits. Defendant GEICO refuted this interpretation, arguing that plaintiff, a pedestrian, was not using or operating her vehicle at the time of the accident and so coverage required by the Deemer Statute was not triggered. Defendant argued that a nexus between the out-of-state automobile and the accident is necessary. The Appellate Court agreed with GEICO, since the Deemer Statute specified the terms “occupying…or using” an automobile in the context of eligibility for PIP benefits. Here, plaintiff parked her car, locked the doors, walked away, exited the parking lot, and was crossing a street when she was struck by a vehicle. At the time she sustained her injuries, her “use” of her vehicle had ended. As such, the Deemer Statute was not triggered and the Appellate Court affirmed the trial court’s decision. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Capacity to Generate Income May Impose Duty on Commercial Owner in NJ May 8, 2012 < Back Share to: In Ethel Gray v. Caldwell Wood Products, New Jersey’s Appellate Court has held that a commercial property owner of a vacant building has a duty to maintain the vacant building’s abutting sidewalk. Plaintiff slipped and fell on the sidewalk abutting defendant’s vacant commercial building that had allegedly not been cleared of snow and ice. Defendants were granted summary judgment by the trial judge who relied on Abraham v. Gupta, 281 N.J. Super. 81 (App. Div. 1995) which held that “the owner of the vacant commercial lot could not be held liable because that property: (1) was not owned by or used as part of a contiguous commercial enterprise or business; (2) did not entertain a daily business activity on the lot to which safe and convenient access was essential; and (3) had no means of generating income to purchase liability insurance or to spread the risk of loss.” Plaintiff demurred and argued that issues of fact remained surrounding the building’s potential to generate income, the active marketing of the building at the time of the accident, the eventual sale of the property, and the owner’s ability to spread the risk as evidenced by commercial insurance coverage on the property. The Appellate Court distinguished Abraham and held that the commercial property owner here was liable because the building had the capacity to generate great income. Moreover, because the commercial property owner was showing the building to potential buyers, it had a duty to maintain the premises in a reasonably safe condition. As such, the Appellate Court reversed the trial court’s decision and remanded the case for further proceedings. http://www.judiciary.state.nj.us/opinions/a0120-11.pdf Thanks to Alison Weintraub for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News NJ Court Directs PIP Claim to Arbitration January 3, 2013 < Back Share to: In the recent unreported decision of Delpome v. Travelers Insurance Company, the court upheld an order granting First Trenton Indemnity Company’s motion to compel arbitration of the plaintiff’s claim for PIP benefits. Delpome sustained a cervical spine injury in a 2007 motor vehicle accident. At the time, Delpome was insured under a policy issued by First Trenton. First Trenton authorized treatment in the form of injections, but denied authorization for surgery. Accordingly, Delpome filed a complaint for PIP benefits. First Trenton eventually moved to compel arbitration pursuant to N.J.S.A. 39:6A-5.1 and N.J.A.C. 11:3-5.2. The court granted its motion and Delpome appealed. The Appellate Court upheld the trial court’s decision, holding that the right to arbitration generally arises from the terms of the insurance contract between the parties. In this case, Delpome's policy unambiguously stated that all disputes may be submitted through the Personal Injury Protection Dispute Resolution Process. Additionally, notwithstanding the language of the policy, First Trenton had a statutory right to arbitration of PIP disputes under NJ law. Thanks to Heather Aquino for her contribution to this post.   Previous Next Contact

News One Or Two Feet Fall Not De Minimus Under Labor Law §240 January 6, 2023 < Back Share to: Jeffrey DiPalma was working for a company that had been hired to rehabilitate several bridges in Buffalo. One day, while standing on a platform, DiPalma was shoveling concrete debris into an unsecured skid box that had been placed on a forklift. DiPalma put a load of debris in the box and turned to scoop up another when the box slid, fell approximately 1 to 2 feet and hit him on the back. The Fourth Department held that the strict liability provisions of Labor Law §240 applied even though there was no significant height difference between the skid box and the platform that DiPalma was standing on. The court noted that because of the weight of the skid box, its contents and the potential harm that it could cause, it could not say that the elevation difference was de minimus. http://www.nycourts.gov/courts/ad4/clerk/decisions/2011/12-30-11/pdf/1369.pdf Previous Next Contact

News NY Notice of Claim Limit Extended Until Discovery of Municipality's Actions October 5, 2010 < Back Share to: In Dixon v. City of New York, The Appellate Division, Second Department eld that for a negligent infliction of emotional distress action, the time to serve a §50-(e) notice of claim upon the city does not necessarily commence on the date of the city’s negligence, but rather on the date the plaintiffs became aware of the city’s actions and suffered mental anguish. In Dixon, the Plaintiffs learned, after the remains of their deceased son were returned by the city following an autopsy, that the remains returned did not include the brain and certain other organs. Plaintiffs did not learn this fact until after the remains were returned and buried, when they received the autopsy report. The city attempted to contend that because the autopsy had been performed more than 90 days after it received notice of the claim, that such claim was time-barred. The Second Department disagreed, noting that the time for providing notice under §50-(e) was when the plaintiffs first learned of the defendants actions and suffered mental anguish. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06775.htm Previous Next Contact

News The Saints Are 13-0 in Football. Will the Head Coach Go 1-0 in Chinese Drywall Litigation? December 14, 2009 < Back Share to: The New Orleans Saints are on a roll. The team is tied for the best record in US football. But does strength on the gridiron equate to strength in the courtroom? We're about to find out. A major Chinese drywall class action -- the complaint is 590 pages long -- has just been commenced in New Orleans, against, among others, Knauf Plasterboard Tainjin Co. Ltd. The lead plaintiff in the class action is Sean Payton, the head coach of the New Orleans Saints. http://www.nola.com/business/index.ssf/2009/12/saints_coach_sean_payton_to_be.html Previous Next Contact

News NJ: No Indemnification for Homeowners’ Association from Snow-Removal Contractor. August 31, 2012 < Back Share to: In the case of Franchini v. Beverly Hills Terrace Condominium Association, et al., the Appellate Division was faced with the question of whether a snow-removal contractor was responsible for indemnifying a homeowners’ association for the costs of defending a slip and call case instituted by a unit owner. The relevant facts are as follows. Franchini testified at trial that she was crossing a sidewalk at the homeowners’ association when she fell on an icy sidewalk. She claimed that defendant Greenview, the snow-removal contractor, was negligent in failing to inspect or maintain the sidewalk. She also claimed that the Association was negligent in its conduct of the ownership and operation of the property. After hearing all the evidence, the jury rendered a defense verdict in favor of both the Association and Greenview. The Association then moved for contractual indemnification from Greenview and sought reimbursement for all litigation costs incurred in defending plaintiff’s suit. The indemnification clause that Greenview sought to enforce required Greenveiw to indemnify the Association for any damage or loss arising out of Greenview’s work. The trial court agreed that Franchini’s accident arose out of Greenview’s work and thus it awarded the Association defense costs. Greenview appealed. The Appellate Division first noted that the first step in interpreting a contractual indemnity provision is to determine the intent of the parties. The court noted that absent explicit contractual language, an indemnitee such as the Association may not recover for claims arising out of its own independent fault absent specific language to the contrary. The indemnification provision in this case stated that: “It is the intent of the parties that the contractor’s indemnification and save harmless obligations hereunder are not contingent upon contractor’s fault.” The Appellate Division found that this language could not be construed as an unequivocal statement by Greenview assuming indemnification for the Association’s own independent acts of negligence. It therefore reversed the trial court. Special thanks to Andrew Marra for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Muffin Man Stuck. February 19, 2010 < Back Share to: We previously reported on the strange case of Bimbo Bakeries and Thomas's English Muffins -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=492. The court has now ruled. The muffin man cannot leave his old job to begin a new life. http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202443627690&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20100217&kw=Secret%20Muffin%20Recipe%20Prevents%20Executive%20From%20Switching%20Jobs&slreturn=1&hbxlogin=1 Previous Next Contact

News Does Unloading Gas Line Pipes Off A Trailer Fall Under §240(1) Of The Labor Law? (NY) April 21, 2023 < Back Share to: Section 240 of New York Labor Law involves liability for injuries of construction workers who suffer a fall or are struck by a falling object. Liability is contingent upon the existence of an elevation hazard contemplated in §240(1) and the failure to use, or the inadequacy of, a safety device. In Castano v. Algonquin Gas Transmission, LLC, 213 A.D.3d 905 (2d Dep’t 2023), the Appellate Division, Second Department recently addressed whether §240(1) applied in a case where a worker was injured while working on a project to replace a section of an interstate natural gas pipeline beneath the Hudson River. Plaintiff testified that at the time of the accident, he was unloading pipes that weighed approximately 1,000 pounds each from a flatbed trailer. After he secured one of the pipes with a “choker” strap, a coworker lifted the pipe using a CAT excavator, the pipe dropped and struck the plaintiff’s leg. Plaintiff sued the pipeline owner and general contractor asserting various Labor Law claims. The defendants moved for summary judgment seeking a dismissal of the Labor Law §240 (1) claim, and plaintiff cross-moved on the issue of liability under the same provision. The trial court granted the defendants’ motion, denied plaintiff’s cross-motion, and plaintiff appealed. The Appellate Division reversed the decision of the trial court granting defendants’ motion as to the §240(1) claim, holding that the defendants failed to eliminate all triable issues of fact concerning that claim. In reaching its determination and focusing on applicability of the statute to falling objects, the Court reasoned that a plaintiff must show when the object fell it was being hoisted, secured, or needed securing for purposes of the undertaking. Further, the Court determined that a plaintiff must also show the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. With these considerations, the Court found the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law on this claim. This case serves as a reminder that while certain tasks such as removing items off a flatbed trailer may not seem to fall within the purview of the Labor Law, accidents involving falling objects can trigger liability and courts will examine the facts to determine whether a plaintiff can meet the statutory requirements. Please contact John Diffley with any questions. Previous Next Contact

News Consumer Protection Law Helps Pierce the Corporate Veil and Leads to Treble Damages (PA) December 20, 2019 < Back Share to: The Pennsylvania Superior Court recently affirmed the trial court’s decision to pierce the corporate veil and award treble damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Pennsylvania’s Consumer Protection Law, in relation to home repairs in Philadelphia. In Sereda v. Center City Acquisitions LLC the Superior Court heard the appeal of defendants Center City Acquisitions and Noah Ostroff following a bench trial regarding damages to the Sereda’s home. Appellants argued that, inter alia, the trial court erred in piercing the corporate veil to find Ostroff personally liable and awarding damages under the UTPCPL. In the underlying case, the Seredas alleged that Ostroff and Center City were liable for breach of contract, breach of implied warranty of habitability and reasonable workmanlike construction, and violations of the UTPCPL for failing to address and repair problems dealing with gaps in the hardwood floors and also leaking windows. The Seredas presented evidence that they communicated only with Ostroff for the two-year period during which the repairs were requested and that Ostroff was the representative from Center City who coordinated the contractors and workers to address the issues. In its opinion, the Superior Court agreed with the trial court’s decision to pierce the corporate veil and to find Ostroff personally liable under the participation theory because Ostroff was the president, acting officer and sole shareholder of Center City; and also cited that he bought the land, built the house, promised a warranty, and participated in the dealings with the Seredas throughout. The Superior Court also agreed with the trial court’s decision to award treble damages under the UTPCPL for water damage stemming from the leaking windows. The Court pointed out that the ‘catchall’ provision of the UTPCPL does not require the showing of an actor’s intent to support a fraudulent or negligent misrepresentation claim, and that while Ostroff’s actions with regard to the flooring did not raise to a level requiring additional punitive damages, the failure to fix the windows and subsequent water damages was sufficient to support a finding that Ostroff misled the Seredas into believing the errors in their home would be corrected under a promised builder’s warranty. Ultimately, the Superior Court affirmed the trial court’s decision finding Ostroff and Center City jointly and severally liable and awarding damages under the UTPCPL. Thanks to Greg Herrold for his contribution to this post. Please e-mail Vincent F. Terrasi with any comments.   Previous Next Contact