News NY Dram Shop Act: An Update February 4, 2021 < Back Share to: In Heins v. Vanbourgondien, the minor plaintiff and her father brought a personal injury suit against several defendants as result of a motor vehicle accident on a Suffolk County road. This article focuses on the Court’s decision on the minor plaintiffs’ Dram Shop claim against two 7-11 stores. The 17-year-old plaintiff Abigail Heins was operating a vehicle owned by one of the co-defendants, after consuming alcohol with the vehicle’s three other passengers. A disagreement arose between vehicle’s occupants causing Ms. Heins to become distracted and causing her to swerve into the road’s median. The vehicle rolled over before coming to a stop in the median. GOL §11-101(1), known as New York’s Dram Shop Act (hereinafter “Act”) states in pertinent part and parcel that: “any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxicated person […] shall have a right of action against any person who by unlawful selling or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication.” In 1983, the Act was supplemented with GOL §11-100, to apply to “any provider unlawfully furnishing alcoholic beverages for minors.” However, liability under this portion of the Act can only be imposed on an individual “who knowingly causes intoxication by furnishing alcohol to (or assisting in the procurement of alcohol for) persons known or reasonably believed to be underage.” Plaintiff Abigail Heins drove to two separate 7-11s with her friend and defendant Kimberly Vanbourgondien, 19 years old, and provided the cash for Ms. Vanbourgondien to purchase the alcohol Ms. Heins consumed. The Heins Court held that a plaintiff may generally recover for damage if they establish a “reasonable or practical connection between an illegal sale of alcohol and the plaintiff’s injuries.” Id at 1019, citing Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136, 1137, 100 N.Y.S.3d 35; Giordano v. Zepp, 163 A.D.3d 781, 782, 79 N.Y.S.3d 659; Covert v. Wisla Corp., 130 A.D.3d 966, 967, 14 N.Y.S.3d 455; Tavarez v. Sidetracks, LLC, 128 A.D.3d 806, 807, 9 N.Y.S.3d 368). However, the Court further held that the Dram Shop Act does not provide for a plaintiff who was injured as a result of their own intoxicated condition, and youth does not constitute an exception to the voluntary intoxication rule. The Court ultimately affirmed Summary Judgment in favor of the two 7-11 defendants. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News And Now Mold... November 10, 2012 < Back Share to: Things have been pretty bad of late in New York, with Sandy and then snow. While the problems continue, a new threat emerges -- mold -- http://m.nypost.com/p/news/local/manhattan/merchants_battling_growing_mold_C9YfFCRUBZ6CTXHqFOSRHO New Yorkers are going to find out in a hurry that most insurance policies don't provide mold coverage. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News A Burden as Light as New-Fallen Snow July 8, 2010 < Back Share to: New York's Second Department (covering Brooklyn, Queens, Long Island, and several counties north of the City) has issued a ruling "to discuss and clarify what a snow-removal contractor must show to establish its prima facie entitlement to summary judgment." The seminal case in this area of the law is Espinal v. Melville Snow Contractors, 98 NY2d 136, where New York's highest court ruled that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." In other words, the typical slip-and-fall plaintiff will generally not have a viable claim against the snow removal contractor. However, the court set out three exceptions to this general rule, to wit, (1) where the contractor negligently "launches a force or instrument of harm;" (2) where the plaintiff detrimentally relies on the contractor's performance of its duties; and (3) where the contractor has entirely displaced the owner's duty to maintain the property safely. In Foster v. Herbert Slepoy Corp., (dediced June 22, 2010), the plaintiff slipped and fell on snow/ice in the driveway/parking lot of the building where she lived. She filed suit against the both the owner/manager and against the contractor, Kerry Clancy. The plaintiff admitted at her deposition that she did not know of Clancy's role as the contractor nor even of Clancy's existence before filing suit. Clancy moved for summary judgment. The Foster court ruled that Clancy demonstrated his prima facie entitlement to summary judgment merely by coming forward with proof that the plaintiff was not a party to his contract and that he therefore owed no duty of care to the plaintiff. In other words, the contractor was not required to negate the possible applicability of the Espinal exceptions because there was nothing in the plaintiff's complaint or bill of particulars that alleged that any of the exceptions applied. The court explained that the initial burden on the contractor in moving for summary judgment is "governed by the allegations of liability made by the plaintiff in the pleadings." Here, once the contractor made his initial showing, the burden then shifted to the plaintiff to show that there was a question of fact as to the applicability of one of the three Espinal exceptions. In short, the contractor contemplating summary judgment must look to the pleadings to see if an Espinal exception is addressed. If it is not, the initial burden of making out a prima facie entitlement to summary jdugment is as light as new-fallen snow. Previous Next Contact

News Is it Deep Enough? April 26, 2010 < Back Share to: In Salazar v. Novalex Contracting Corp., the First Department examined prior Labor Law § 240 decisions and found that holes (trenches/troughs) in those cases were not deep enough to create an "elevation-related risk" for the workers who stepped into them. For example, in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 (1991), the Court of Appeals found that there was no liability under Labor Law § 240 because it was “difficult to imagine how plaintiff's proximity to” a 12-inch deep, 18- to 36-inch-wide trough “could have entailed an elevation-related risk”. Similarly, in Romeo v. Property Owner (USA) LLC, 61 A.D.3d 491 (2009), the worker stepped into an opening in a raised computer floor that was created when one of the floor tiles was removed. In Romeo the opening was 2 feet by 2 feet and 18 inches deep, and therefore the First Department held that it was not deep enough to create an elevation-related risk. In Salazar, the court found that the trench that plaintiff fell into was 4 feet deep and 15 feet long. The court held that, while the 12 to 18-inch drops in Rocovich and Romeo did not call for a protective device within the statute's contemplation, the four-foot-drop in Salazar did. The court further elaborated by stating that the bottom of the trench in Salazar represented a separate level, which, relative to the floor itself, constituted a gravity-related hazard covered by section 240. The First Department's decision here makes the applicability--or lack thereof-- of Labor Law § 240 even more fact intensive then before. When examining the potential applicability of Labor Law § 240, advocates must now take out their rulers to determine whether the hole at issue is deep enough for the statute to apply. Thanks to Cheryl Fuchs for her contribution to this post. http://www.courts.state.ny.us/courts/ad1/calendar/appsmots/2010/April/2010_04_01_dec.pdf. Previous Next Contact

News Dismissal Of Complaint Filed One Day Late Affirmed By NJ Appellate Division July 9, 2009 < Back Share to: In McMillan v. Wal-Mart Stores, Inc. , the appellate division affirmed the dismissal with prejudice of a complaint filed one day after the two year statute of limitations had expired. Plaintiff had claimed the statute was equitably tolled due to ongoing settlement negotiations, however, the court noted that there was never any discussion about the statute of limitations, nor any communication stating any understanding that plaintiff would not be filing a complaint while the parties continued to negotiate. The Court held that an exchange of communications shortly before the statute of limitations runs cannot, without more, be converted into tolling or we would either abolish the statute of limitations or deter carriers from communicating about settlement before the statute runs. http://www.judiciary.state.nj.us/opinions/a1043-08.pdf Previous Next Contact

News "Borrowed Employee" Status Remains Question of Fact in Pennsylvania December 20, 2013 < Back Share to: Recently, the Pennsylvania Superior Court reiterated that the employment status of a “loaned” laborer is a question of fact with respect to the applicability of the workers compensation bar. In the case of Shamis v. Moon, the plaintiff was the direct employee of a general contractor charged with overseeing the expansion of the Pennsylvania Convention Center in Philadelphia. More specifically, the plaintiff alleged in his complaint that he was “loaned” to a demolition subcontractor working on the project, and sustained severe injuries when an employee of the same ran him over with a dump truck. In light of his injuries, the plaintiff filed a workers’ compensation claim against the general contractor, and later sued the subcontractor and its employee in the Pennsylvania Court of Common Pleas. In responding to the plaintiff’s allegations, the subcontractor eventually moved for summary judgment and asserted that it was also the plaintiff’s employer for the purposes of the workers’ compensation bar under the “borrowed employee” doctrine. To this end, the subcontractor presented evidence from the record indicating that it, not the general contractor, actually supervised the expansion and directed the plaintiff in his duties. Perhaps surprisingly, the Philadelphia trial court agreed and granted summary judgment on the basis of the workers’ compensation bar. On appeal to the Pennsylvania Superior Court, the plaintiff argued that the trial court erred as a matter of law when it applied the “borrowed employee” doctrine. Specifically, the plaintiff argued that Pennsylvania law recognizes the doctrine only when there is sufficient evidence that the employee “passed under the [putative] employer’s right of control with regard to the work to be done and the manner performing it.” According to the plaintiff, however, the record in Shamis was conflicted in respect of the general contractor’s right of control vis-à-vis the defendant subcontractor. In particular, the plaintiff noted to the Superior Court that although he took direction from the subcontractor, the general contractor maintained a contractual right and obligation of supervision that called into question his employment status for purposes of the workers’ compensation bar. In ultimately endorsing the plaintiff’s position, the Superior Court agreed that questions regarding “borrowed employees” are intrinsically fact sensitive and rely heavily on factors that should be considered by a jury. As a result, the Superior Court reversed and remanded the matter to the court below for further discovery and trial. Shamis is a reminder that while the “borrowed employee” doctrine may serve as a viable bar to workplace injury claims in Pennsylvania, the defense requires a significant and detailed factual basis in order to succeed. Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News If You Can’t Take A Hit, Stay Off The Grass (NY) May 22, 2019 < Back Share to: In MF v. Jericho Union Free School District, a high school junior varsity football player sued his school after he was injured during practice. The infant-plaintiff, not feeling well that day, decided not to participate in practice but chose, rather, to stand along the sideline and observe the plays. During a drill involving a blocking sled, the plaintiff’s foot was injured by his teammates. The school moved for summary judgment, arguing that the plaintiff’s lawsuit was barred under the “assumption of the risk” doctrine. The lower court denied the motion. The Second Department reversed the decision and granted the defendant’s summary judgment dismissing all claims against it. The appellate court noted that “under the doctrine of primary assumption of the risk, a person who chooses to engage in certain recreational or athletic activities consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” Furthermore, the Court held that the doctrine applies when a consenting participant in a qualified activity is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risks. The Court further held that that the fact that the plaintiff was not participating in practice that day was inconsequential. The doctrine of assumption of the risk “applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it, particularly where the record shows that the plaintiff had viable alternatives to his own location." The decision noted the plaintiff’s own testimony where he admitted that, as he watched the drill that day, he saw the blocking sled veer in various different directions. The Court also noted that the plaintiff was an experienced football player, having played football since he was seven years old, and attended 10 practices with the junior varsity team in the weeks before the incident. In our practice, we are frequently asked to represent schools and private leagues defending against similar claims. The pertinent takeaway from this decision is that, in assessing liability exposure, the key factors to consider are whether the injury-producing activity held a common risk in the sport, the level of experience the plaintiff had in the sport, and plaintiff’s appreciation for this risk. Thanks to George Parpas for his contribution to this post. Previous Next Contact

News Contractor's Trucks Traversing over a Sidewalk Creates Issue of Fact that Defeats Motion to Dismiss. July 23, 2010 < Back Share to: In Cordova v Union Turnpike Dev. Corp., the plaintiff tripped and fell due to a hole in a sidewalk near an area where construction work was taking place. She sued the parties performing the construction work. The defendants were granted summary judgment by the trial court on the grounds that they did not create the alleged defect. In a short decision, the Appellate Division reversed. Notably, the court relied on the plaintiff's claim that the hole could have been created when heavy machines and trucks traversed the subject sidewalk to gain access to the construction site. Since the defendant did not establish they did not create the hole with their equipment, they failed to meet their initial burden of establishing entitlement to summary judgment. Special thanks to Bill Kirrane for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2010/2010_06155.htm Previous Next Contact

News Witness Protection No Shield at Deposition (NY) February 14, 2013 < Back Share to: Plaintiffs often try to avoid the disclosure requirements in New York. However, as M. C. v Sylvia Marsh Equities, Inc. illustrates, a plaintiff who initiates a lawsuit waives various objections – including those provided by the witness protection program. In M.C., the plaintiff was allegedly injured when the bathroom ceiling in her apartment collapsed. During her deposition, she refused to answer certain because she was a participant in the federal witness protection program. The lower court denied defendant’s motion to compel the plaintiff to answer questions related to a program frequently used to protect criminals who have cooperated with the federal authorities. On appeal, the Appellate Division directed the plaintiff to appear for a supplemental deposition and answer questions about the circumstances surrounding her entry into the witness protection program. Plaintiff cannot use her entry into the program to shield her from “the adverse effects of the litigation she has initiated.” Thus, the facts and circumstances surrounding her entry into the program are material and fair game for deposition inquiry. The court offered the plaintiff a fig leaf: the transcript of the supplemental deposition and any information disclosed at that deposition should be filed under seal. Thus, where a plaintiff objects to providing information at a deposition, the defense should thoroughly question the plaintiff about the facts and circumstances surrounding any objection. As M.C. demonstrates, litigation is not meant for the fainthearted so the plaintiff cannot avoid answering questions that she deems uncomfortable or intrusive, particularly where that circumstance is due to her past criminal history. Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Insureds Get Two Strikes on EUO No-shows (NY) May 7, 2020 < Back Share to: Generally, the standard for an insurer to disclaim or withdraw coverage because of an insured’s noncooperation is a high one. Specifically, the Appellate Division First Department recently reiterated, “An insurer that seeks to disclaim coverage based on its insured's alleged noncooperation is required to demonstrate that it acted diligently in seeking to bring about its insured's cooperation, that its efforts were reasonably calculated to obtain its insured's cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of willful and avowed obstruction.” Often this can leave an insurer uncertain if their insured’s noncooperation rises to a sufficient level to meet this exacting, highly fact-dependent test. However, the First Department recently affirmed a ruling which gives a clear guideline for a specific scenario in Nationwide Affinity Ins. Co. of Am. v. Thomas. The defendants in this declaratory judgment action had filed claims arising out of a motor vehicle accident. The plaintiff insurer had proved that they had properly served defendants with notices for examinations under oath (“EUOs”) on two separate occasions each and the defendants failed to appear for any of them. The insurer moved for summary judgment, presenting evidence of proper service of the notices and denials of coverage, explained the basis for the EUO demands, and submitted statements on the record from attorneys who had appeared to take the EUOs. The trial court granted summary judgment and the First Department unanimously affirmed, holding appearance for properly noticed the EUOs, which were a condition precedent for coverage. 2018 WL 1587685 (N.Y. Sup. Ct. 2018); aff’d. 2020 NY Slip Op 02258 (1st Dep’t 2020). This decision provides welcome clarity on a scenario where an insurer can protect itself from the noncooperation of its insureds and the steps insurers can take to create the necessary paper trail to support a summary judgment motion. Thank you to Nicholas Schaefer for his contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News NY Court Takes a Closer Look at Cause in Labor Law Ladder Fall June 24, 2022 < Back Share to: On April 28, 2022 the Court of Appeals decided on two impactful Labor Law 2401(1) ladder fall cases. In Cutaia v. The Board of Managers of the 160/170 Varick Street Condominium, plaintiff was rerouting pipes near an electrical wiring by using an A-frame ladder. He leaned the ladder against the wall in the closed position due to the limitations of the space. While working on the ladder he was electrocuted and fell to the ground. The Court of Appeals reversed the First Department’s decision to grant plaintiff’s summary judgment. The Court of Appeals held that questions of fact existed as to whether the ladder failed to provide proper protection and whether injury stemmed from the ladder failed to provide proper protection or because plaintiff was electrocuted. The court stated that an accident alone is insufficient to establish a violation of Labor Law 240(1) or causation. This case clarifies that a fall from an unsecured ladder does not equal an automatic Labor Law 240(1) violation. There needs to be causation evidence. In David Bonczar v. American Multi-Cinema, plaintiff fell from a ladder in the lobby of a movie theatre as he was updating a fire system. After climbing up and down a few times, on his final descend the ladder shifted and wobbled, causing him to fall. The Court of Appeals affirmed the Fourth Departments reversal of plaintiff’s partial summary judgment on Labor Law 2401(1) liability. The court stated that a jury could have found in defendant’s favor, and therefore a factual issue existed on proximate cause of injury. This case strengthens proximate cause defense in cases where a non-defective ladder “shifts” for no clear reason. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Joins With Other Philadelphia Firms in Sponsoring Women in Law Event. February 2, 2019 < Back Share to: On March 7, WCM will join with other Philadelphia firms and the Philadelphia Association of Defense Counsel in sponsoring a panel discussion entitled "Leaders in the Courtroom: From the Trial Courts to the United States Supreme Court." The program (which involves female leaders of the judiciary and legal community) aims to provide insights, observations, suggestions and practical tips for increasing women's participation as first chair trial attorneys and in other aspects of litigation. For more information about the seminar, please contact Colleen Hayes at chayes@wcmlaw.com . Previous Next Contact