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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 No Duty to Defend: Insurer Need Not Defend Insured Against Unjust Enrichment Claim (NY) July 22, 2022 < Back Share to: The Southern District of New York reaffirmed that New York liability insurance policies that provide coverage for bodily injury and property damage of the insured against a third-party generally do not afford coverage to the insured against unjust enrichment claims. In Godfrey v. Executive Risk Indemnity Inc., the Court rejected Plaintiffs’ motion for a declaratory judgment that would require defendant insurance company to defend and indemnify Plaintiffs against an unjust enrichment claim made by a third-party in an underlying action. There, a third-party contractor renovated Plaintiffs’ New York City home where faulty water sprinklers went off, damaging a substantial portion of the apartment, requiring further renovation. The unforeseen renovation spiked up the final cost of the remodel. After Plaintiffs refused to pay the additional cost of the renovation, the third-party contractor sued the Plaintiffs alleging unjust enrichment in attempt to collect the remaining balance. The Southern District of New York granted Defendant-insurer’s motion for summary judgment, concluding that New York Insurance policies regarding Personal Liability Coverage only covers damages for personal injury and property damage, not claims against the insured of unjust enrichment or breach of contract by a third-party. Despite the allegation of unjust enrichment being directly related to property damage that occurred in the Plaintiffs’ home, the Court emphasized that such relation does not establish an allegation of property damage in and of itself. Thus, because the Insurance Policy does not provide coverage against unjust enrichment claims, the Insurance Company has no duty to defend or indemnify Plaintiffs, its insured, in such suits. This ruling highlights the duties and non-duties insurers have to their insured based on both the individual insurance policy and New York’s general insurance law. Additionally, merely because an action is related to damages that would be covered by the policy does not necessarily mean the insured may reasonably expect the policy to cover that action. Thanks to Alexa Schimp for her contribution to this article. Should you have any questions, please contact Heather Aquino. Previous Next Contact

News Sisters' Slippery Stairs Send Sister Sprawling (PA) June 28, 2016 < Back Share to: On June 29, 2013, Plaintiff was descending the stairs at Sisters Serving Sisters Night Club in Philadelphia, Pa, when she slipped and fell, suffering a severely sprained ankle. Reasons given for the cause of Plaintiff’s fall included: “she missed the last two steps”; “she couldn’t walk due to a virus”; “her foot caught up in the loose carpet”; “she was bitten by an insect in Florida and was paralyzed”; “she drank 4-6 drinks prior to the fall”; “the steps were wet and slippery”; the lighting was “dim and poor”; “there was liquid on the steps”. Ultimately, the court landed on the theory of a spill and wet stairway as the cause of Plaintiff’s fall. In its memorandum opinion, the court held that as a business invitee at Defendant-Club, Plaintiff was owed the highest duty of care. Therefore, the Club had an obligation to maintain the stairways and keep them safe for all patrons. Furthermore, the Club had a heightened responsibility to monitor the stairs because patrons were required to use said stairs to access the restroom. However, the court also found that an invitee has a duty to avoid a recognized hazard and Plaintiff, as a frequent patron, knew or should have known to hold onto the railing because of spills and for her own safety. As such, the court found Plaintiff 10% liable. In addition to claims against the Club, Plaintiff sought to hold the building owner personally liable for her injuries and damages. Plaintiff attempted to pierce the corporate veil, but was unable to point to any of the factors necessary for piercing the corporate veil. Accordingly, the court declined to do so. Plaintiff also argued that Defendant-Owner should be personally liable predicated on a finding that he participated in tortious activity. The court, citing to Wicks v. Milzoco Builders, Inc., 470 A.2d 86 (Pa. 1983), held that Corporate officers may not be held liable for mere nonfeasance. Ultimately, the court awarded Plaintiff $112,500 against the Club, and nothing against the building owner. Certainly, a frustrating result for the club, considering the myriad of reasons given for plaintiff's fall, and also considering the modest injury. Thanks to Hillary Ladov for her contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Season's Greetings December 27, 2013 < Back Share to: Much like Santa Claus, we are resting at WCM and will resume publication of Of Interest the week of January 6. In the meantime, our warmest wishes for the happiest of holidays and the most joyous of new years. Previous Next Contact

News Father Knows Best: Church Assets May Be Valued In a Pastor's Divorce Proceeding November 15, 2007 < Back Share to: The wife of a pastor sued for divorce in New York. Her attorney argued that the pastor --the wife's estranged husband-- used the church's assets as his "personal piggy bank." Not suprisingly, the pastor protested that he was merely a humble "W-2" employee of a duly registered not for profit religious corporation. Ruling that the church and its finances may be considered the pastor's "alter ego" if he had unfettered control of its assets for his personal use, the court permitted the wife to pursue the valuation of the church's assets for equitable distribution purposes. We are reminded of the biblical admonition: You reap what you sow. (Galatians 6-7) Or the more practical lesson to be careful how much you tell your spouse if your marriage is on shaky ground. http://www.nylawyer.com/adgifs/decisions/111507diamond.pdf Previous Next Contact

News NY Civil Trial Practice Update: Admissibility of Uncertified Police Reports November 25, 2020 < Back Share to: The Appellate Division of the Supreme Court of New York, Second Department’s recent ruling in Yassin v. Blackman, 188 A.D.3d 62 (2d Dep’t 2020) abrogates prior case law, which had previously held a party’s admission in an uncertified police report was admissible. Following Yassin, an uncertified police accident report no longer constitutes admissible evidence, absent a proper foundation for its admissibility. The Yassin Court, however, specifically noted that its holding involved a situation where a party affirmatively proffered an uncertified police accident report in support of a motion for summary judgment. By way of background, Yassin involved a personal injury action, wherein plaintiff alleged his taxi was negligently struck by a truck (owned and operated by separate defendants). The Supreme Court, Kings County granted plaintiff’s summary judgment motion on liability, supported by plaintiff’s affidavit and a copy of an uncertified police report. In brief, plaintiff’s affidavit averred he did not jut in front of the truck, in any fashion, but was stopped at a traffic light for a few seconds when he was rear-ended. The uncertified police accident report contained the trucker’s alleged admission that he side-swiped plaintiff’s taxi in an attempted pass. The trucker’s affidavit was submitted in opposition, essentially claiming plaintiff’s taxi was double-parked, but then cut off the trucker. On appeal, defendants contended the trucker’s affidavit raised a triable issue of fact as to whether plaintiff’s taxi cut off the truck. Plaintiff responded that the trucker’s affidavit should be disregarded as a feigned attempt to avoid the consequences of his admission contained in the police accident report. In reply, defendants argued, inter alia, the police accident report was inadmissible because it was not certified. The Appellate Division, Second Department reversed the trial court’s summary judgment order concluding triable questions of fact remained as to the trucker’s negligence. The Court discussed that statements recorded in police accident reports involve two levels of hearsay, each of which must satisfy a hearsay exception to render the statement in the report admissible. First, the report itself must be admissible. Properly certified police reports are admissible where the report is based upon the officer’s personal observations while carrying out police duties. CPLR 4518 (c) provides that the foundation for the admissibility of police reports (and other state records) may be laid through a proper certification. CPLR 4518 (c) is governed by the same standards as the business record exception. Thus, the certification must set forth the record was made in the regular course and it was the regular course of such business to make it, at the time of the act, transaction, occurrence, or event – or within a reasonable time, thereafter. Second, assuming there is a properly certified police accident report, the statement(s) contained within the report must satisfy a separate hearsay exception. Thus, the Court concluded that since the police report was not certified to begin with, and since a foundation for its admissibility had not been laid by some other method, the report and its contents constituted inadmissible hearsay. While it is true a party’s admission is an exception to the hearsay rule, the Court declared that a party’s admission contained within a police accident report may not be bootstrapped into evidence in this fashion. To avoid the evidentiary issues discussed in Yassin, New York trial practitioners seeking to proffer police accident reports and other business records should ensure these documents are certified. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Pennsylvania Superior Court Attempts To Interpret Tincher May 13, 2021 < Back Share to: The Pennsylvania Superior Court, in interpreting Tincher, recently confirmed that a plaintiff may simultaneously proceed in alleging a strict products liability defective design claim and a negligent design cause of action. Thus, the legal landscape as to what exactly Tincher means in any practical sense continues to be muddied. In the wake of Tincher, which mixed negligence principles into strict liability claims, trial courts have been plagued with questions whether negligent design and strict product liability defective design are one and the same. The Pennsylvania Superior Court, recently confronted with this thorny issue, held that a plaintiff may proceed with both claims, as Tincher did not entirely eliminate the distinction between negligence and strict liability. Specifically, in Timmonds v. AGCO Corp, plaintiff essentially hotwired a cart and suffered injuries when the cart ran over his leg. At trial, plaintiff’s expert failed to set forth the requisite standard of care that the manufacturer allegedly failed to conform to; as such, the trial court granted a directed verdict, as plaintiff could not show that the defendant “breached any technical, manufacturing, or industry standards.” The product liability allegation reached a verdict for the defendant. At the appellate level, plaintiff argued that the court improperly issued a directed verdict on the negligence claim. Similarly, at the appellate level, the defendant argued that no cause of action for negligent design could exist in the wake of Tincher and the decision of the jury finding the product was not defective. The appellate court indicated that the negligent design and strict liability design claims were not identical, and that plaintiff could simultaneously proceed with both, holding that although Tincher created a composite Consumer Expectations Test and Risk Utility Test, the combination test was still different than a negligent design claim. Nonetheless, the appellate court upheld the dismissal of the negligent design claim, holding that plaintiff waived the claim in any event by failure to appropriately preserve objections and brief the issue. This case continues to show the difficulty that litigants, attorneys, and the courts face when trying to distill Tincher into practical reality. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News New Jersey Ongoing Storm Rule Applies to Commercial Private Property July 14, 2023 < Back Share to: In Pareja v. Princeton Int’l Prop., 246 N.J. 546 (2021), the New Jersey Supreme Court adopted the “Ongoing Storm Rule” which holds that a commercial landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after cessation of the precipitation. The Supreme Court created two exceptions to the rule: (1) where a commercial landowner creates an “unusual circumstance” that increases the risk to pedestrians and invitees on their property; and 2) if the dangerous condition is pre-existing such as failure to remove or reduce snow or ice from a previous storm. The rule has been extended to snow removal contractors. In Smith v. Costco Wholesale Corp., the Appellate Division recently addressed this rule in a case where plaintiff was injured in a fall in a Costco parking lot during a snowstorm. The trial court granted defendants motion for summary judgement based on the “Ongoing Storm Rule” and plaintiff appealed. The Appellate Division affirmed, holding that the trial court correctly found that plaintiff was unable to establish that the defendants owed a duty of care because the Ongoing Storm Rule applied. Plaintiff argued that the rule did not apply to privately-owned commercial property, and that exceptions to the rule applied. However, the Court observed that if a storm is ongoing, commercial landowners do not have an absolute duty, and the “impossible burden,” to keep sidewalks or walkways on their property free from snow or ice. The Court also noted that there was no indication in Pareja that the Supreme Court intended to apply the rule only to public property, adding that the task of removing snow during an ongoing storm was just as burdensome to commercial landowners on private property as it is on public property. The Court also found that plaintiff failed to show that an exception to the rule applied. Plaintiff argued that defendants exacerbated the risk because they did not allow her to take her shopping cart to her vehicle for support and also began snow removal operations before the storm. However, the Court found the argument without merit because plaintiff failed to tell Costco employees that she intended to use the cart as a means of support, and failed to show that the snow removal was done in a manner that would have increased her risk of injury. The Smith decision is significant in that it extends the “Ongoing Storm Rule” in Pareja to commercial private property and serves as a reminder that a landowner will generally avoid liability for accidents which occur during a snow/ice storm unless one of the exceptions apply. Landowners must act to remove the snow and ice within a reasonable time after a storm or face liability for any resulting accidents. Thank you to Jordan Davis for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

News Failure to Establish a Causal Link Between the Alleged Injury and Defendant’s Actions Proves Fatal to Plaintiff’s Negligence Action (PA) December 23, 2019 < Back Share to: In Jones v. Schindler Elevator Co., the plaintiff alleged that while shopping at Bloomingdales, she suffered serious injuries as the result of a malfunctioning “up” escalator between the second and third floors of the store. The plaintiff alleged that while riding the escalator, the hem of her pant leg became caught between the steps of the escalator, subsequently causing the her to fall. The plaintiff brought suit against the Schindler Elevator Corporation and Bloomingdales, alleging claims for strict liability and negligent design and/or maintenance. Thereafter, the defendants moved for summary judgment, alleging the plaintiff failed to satisfy her prima facie burden. The only support the plaintiff put forward to support her contention that the escalator malfunctioned and caused the incident were various maintenance records for Bloomingdales’ escalator. The plaintiff failed to put forward any other evidence to link the escalator’s alleged mis-function to the cause of her fall. The Court noted that the plaintiff did not claim that the operation of the escalator was out of the ordinary that day, or that the escalator was functioning in an erratic manner (e.g., excessive speed, shaking, lurching, etc.). Furthermore, the plaintiff failed to establish an explanation for how her pant leg became trapped in the escalator in the first place. Therefore, the Court held the plaintiff failed to make her showing of the defendants’ negligence. The Court next considered whether the plaintiff’s burden could be satisfied based on the doctrine of Res Ipsa Loquitur. Pursuant to the doctrine of Res Ipsa Loquitur, negligence can be inferred when the incident generally does not occur in the absence of negligence. The Court held that the plaintiff failed to establish that the incident at bar generally would not occur in the absence of negligence. Moreover, given that the plaintiff failed to provide sufficient detail for how her pant leg became stuck in the escalator, the Court could not infer that the defendants’ negligence caused the plaintiff’s fall. As such, the plaintiff’s claims failed under the doctrine of Res Ipsa Loquitur. Given that the plaintiff failed to meet her burden, the Court ruled in favor of the defendants’ motion for summary judgment. This case demonstrates that a plaintiff’s failure to allege a causal link between the sustained harm and the defendants’ alleged acts or omissions may prove sufficient to prevail in a dispositive motion dismissing the plaintiff’s claims. Thanks to Rachel Thompson for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Failure to Retain Evidence Leads to Dismissal of Plaintiff's Case January 23, 2009 < Back Share to: In Firemen's Insurance Company of Washington v. Krenitsky, a New York judge held that the failure of the plaintiff to retain a key piece of evidence in a subrogation action warranted dismissal of the complaint. The case arose from a fire on July 11, 2004 in a Manhattan apartment building. After gaining access to the apartment and upon concluding that the stove was the source of the fire, the plaintiff's expert advised the plaintff's subrogor, the building owner, to retain the stove for future examination by interested parties. However, when the defendants requested an inspection of the stove during discovery, the plaintiff advised that the stove could not be found. The court granted the defendants' spoliation motion based on the failure of the plaintiff to preserve the stove after the plaintiff was put on notice, based on its own expert's report, that the stove held the key to the cause and origin of the fire. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50066.htm Previous Next Contact

News Appellate Division Holds Plaintiffs Need No Contemporaneous Quantitative Measurements to Defeat Defendant’s Claim of No “Serious Injury” Under Insurance Law August 23, 2024 < Back Share to: Recently, in De Castillo v. Reado , 2024 N.Y. Slip Op. 04195, the Appellate Division, Second Department ruled on an appeal made by plaintiff, after the Supreme Court granted summary judgment in favor of plaintiff. Plaintiff initiated the suit after alleging personal injuries suffered as a result of a motor vehicle accident involving the defendant. Defendant moved for summary judgment, arguing that plaintiff did not suffer a “serious injury” as defined by New York Insurance Law § 5102(d), a prerequisite for a personal injury action. The trial court held in favor of the defendant after determining that defendant demonstrated that plaintiff did not suffer a “serious injury” under the law’s permanent consequential limitation of use or the significant limitation of use categories. On appeal, the Second Department reversed the award of summary judgment in favor of the defendant. Although the court agreed that defendant made its prima facie showing that plaintiff suffered no serious injury, the court found error in the lower court’s reasoning. Specifically, the Second Department found that the lower court erred in requiring plaintiff “to submit evidence of contemporaneous quantitative measurements to raise a triable issue of fact as to whether she sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories.” As such, the court found that the defendant was not entitled to summary judgment at this point of the litigation. This case demonstrates the high bar that motor vehicle accident defendants face in arguing that a plaintiff did not suffer a “serious injury” under New York Insurance Law. Not only must defendants prove against every single category of “serious injury” listed under the Insurance Law, but they must also consider the low bar that plaintiffs face in raising triable issues of fact regarding their alleged “serious injury.” De Castillo v. Reado .pdf Download PDF • 145KB Previous Next Contact