News Summary Judgment Denied to Defendant Who Failed to Prove Lack of Notice Under NY Labor Law November 5, 2020 < Back Share to: In Colon v. Bet Torah, Inc., the plaintiff was an employee of a subcontractor performing construction work on the defendant’s premises. The plaintiff was purportedly injured when the cover of a grease pit upon which he was walking became dislodged, causing him to fall into the pit. His complaint included allegations of common law negligence and a violation of Labor Law § 200, among others. The defendant moved for summary judgment as to the plaintiff’s common law negligence and Labor Law § 200 claims. The trial court denied the defendant’s motion. The defendant appealed. The Appellate Division, Second Department, affirmed. Specifically, the Court found that the defendant had failed to prove that it lacked constructive notice of the defect in the grease pit cover. In this regard, the court noted that the defendant failed submit any evidence regarding when it had last inspected the grease pit cover and also failed to submit any evidence proving that a reasonable inspection would not have revealed a defect in the grease pit cover. As such, the court ruled that the defendant failed to meet its burden in dismissing plaintiff’s common law negligence and Labor Law § 200 claims. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07372.htm Previous Next Contact

News Mystery Photos Defeat Summary Judgment (NY) February 21, 2013 < Back Share to: To sustain a claim for a fall on an allegedly raised sidewalk, the plaintiff must show that the defendant owner had at least constructive notice of the condition. However, in a recent case, beyond his testimony of the condition, the plaintiff had nothing more to establish the existence of the condition other than photos of unknown origin. Without more substantial proof, the defendant filed for summary judgment. In Molinari v. 167 Housing Corp, the plaintiff testified as to the location and cause of his fall based on photos that he could not authenticate as to identity of the photographer or date taken. Nevertheless, he testified that the photos accurately depicted the condition of the sidewalk at the time of the accident. The First Department affirmed denial of the defendant's summary judgment motion finding that his testimony that the photos fairly and accurately depicted the condition at the time of the accident was sufficient despite the lack of foundation as to who took the photos or when. Moreover, the Court opined that the condition depicted raised an issue of fact as to whether the defendants had constructive notice of the defect. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Drive-By Shooting Triggers New Jersey UM Coverage November 6, 2007 < Back Share to: The Appellate Division holds that a drive-by shooting arose "out of the operation or use" of an uninsured vehicle, triggering an insured's claim for UM coverage. This recent decision disagrees with a 1982 Appellate Division case setting the stage for resolution by the New Jersey Supreme Court. http://lawlibrary.rutgers.edu/courts/appellate/a1238-06.opn.html Previous Next Contact

News Hidden Defect Must Be Made Transparent (NJ) October 9, 2019 < Back Share to: In Cabrera v. Fairleigh Dickinson, the court considered whether a defendant owed a duty to alert an independent contractor to the existence of a hidden defect on the property. Defendant FDU hired KB Electric Services to change lights on the roof of its property. Defendant FDU was aware of a defect on the roof but failed to warn anyone at KB of the danger. The plaintiff was an employee of KB and he fell from the roof due to the defect, sustaining personal injuries. Of note, it was undisputed that a dangerous condition existed on the roof and that the defendant was aware of the defect. Accordingly, at issue was whether or not defendant FDU owed a duty of care to KB and KB’s employees. In New Jersey, the law carves out an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself. Based on this case law, the defendant argued that they did not owe a duty of care to KB. However, in this case, the defect on the roof was hidden and only known to defendant. The Appellate Court ultimately found that the defendant had a duty to warn the plaintiff of the dangerous condition. Thanks to Heather Aquino for her contribution to this post. Please email Georgia Coats with any questions.   Previous Next Contact

News NJ Examines Who Is Your Real Estate Manager January 9, 2012 < Back Share to: The question of who is entitled to coverage under the standard CGL policy has vexed both insurers and insureds for years. Under Section II of the standard ISO forms, the definition of “an insured” includes any person or organization “while acting as your real estate manager.” What is necessary to trigger this coverage and just how broad is the coverage provided to this class of insureds? The New Jersey Appellate Division recently examined this provision. In Cambria v. Two JFK Blvd., LLC, the plaintiff slipped and fell on ice located in the parking lot of a small strip mall. He sued the landlord and the property manager of the mall who, in turn, impleaded a tenant and the tenant’s CGL insurer. Of note, neither the landlord nor the property manager were explicitly named as additional insureds on the tenant’s CGL policy. The argument of the property manager was simple: he was the real estate manager of the property and therefore entitled to coverage under the tenant's CGL policy. The lower court accepted this argument and inexplicably provided coverage under this provision to the landlord as well. The Appellate Division summarily reversed. It found that the property manager may have been “a” real estate manager or “the landlord’s” real estate manager but certainly was not acting as “the tenant’s” real estate manager, a necessary element of coverage. Of significance, the court found that the tenant had no contractual obligation to maintain the common area parking lot nor was accident location part of the leased premises. Therefore, the real estate manager could not have been acting on the tenant’s behalf in relation to any snow/ice removal activities and did not qualify as the tenant’s real estate manager. Further, the court made reference to the indemnity provision in the lease to discern “the fundamental understanding of the parties’ liability for incidents,” and found the tenant was obligated to indemnify the landlord only for claims related to the tenant’s own acts arising from its use of the leased premises. This factor also reinforced the conclusion that the real estate manager was not “your,” that is, the tenant’s real estate manager. In sum, the court interpreted the phrase “your real estate manager” as written and used a common sense standard in denying coverage to the real estate manager under the tenant’s CGL policy. Although infrequently cited, this interesting source of coverage appears limited to those circumstances where a property manager acts specifically on behalf of the named insured. If you have any questions about this post, please email Paul at pclark@wcmlaw.com   Previous Next Contact

News Mode Of Operation Does Not Apply Just Because Self Service Bins Are Present. November 23, 2011 < Back Share to: In Cordasco v. Walgreen's, the New Jersey Appellate Division affirmed an order granting summary judgment to Walgreen's. Plaintiff claimed that she was walking down an aisle in Walgreen's and that as she approached the end of the aisle, she slipped and fell on a waxy /crayon like substance on the floor next to 2 self servce bins containing mechandise. She had no idea where the substance on the floor came from, how long it had been there or whether any Walgreen employee knew about it prior to her fall. Plaintiff alleged that she was entitled to an inference of negligence under the mode of operation rule because Walgreen's was engaged in a self service operation in the area where she fell. The Appellate Division affirmed summary judgment finding no evidence that the self service bins contained open bags or containers, that the waxy / crayon type material was in the bins for sale or that the substance on the floor came from the bins. It therefore found that the mode of operation rule did not apply and that Plaintiff was required to prove actual or constructive notice which she could not do. http://lawlibrary.rutgers.edu/courts/appellate/a1636-10.opn.html Please contact Robert Ball with any questions regarding this post. Previous Next Contact

News Partial Labor Law Victory for Property Owner Where Code Provision Was Inapplicable to Facts of Case February 21, 2012 < Back Share to: In Fernandez v. Stockbridge Homes, LLC, 402886/08, NYLJ 1202542556067, at *1 (Sup., NY, January 25, 2012), Stockbridge Homes hired Sanita Construction Company to constructing four single-family homes. Plaintiff was an employee of Sanita Construction in the process of moving wooden forms that he used to construct a retaining wall. Plaintiff alleged that he was standing on top of the retaining wall where there were no scaffolds or safety equipment, and that he fell backward to the ground. Two non-party witnesses testified that there was scaffolding in place on either side of the wall and that plaintiff jumped off the retaining wall. Stockbridge moved for summary judgment seeking to dismiss the Labor Law 200, 241(6) and 240(1) causes of action asserted against it arguing that it had no control over the plaintiff, that plaintiff did not cite to an applicable industrial code provision, and that plaintiff was the sole proximate cause of his own accident. The court granted Stockbridge’s motion with respect to the Labor Law 200 and 241(6) causes of action, finding that Stockbridge did not control plaintiff’s work and that the industrial code provision cited applied to the approval and maintenance of certain safety devices that were not actually utilized at the site. The court denied the motion with respect to Labor Law 240(1) since there was a question of fact as to whether there were scaffolds in place and whether plaintiff fell backward or jumped off the retaining wall. http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202542556067 Previous Next Contact

News This New Year, Perhaps Tell Your Personal Trainer to "Butt Out" January 4, 2013 < Back Share to: Many of us have already begun the annual pilgrimage back into crowded gyms with the intent to follow through on New Year's resolutions. But if you're looking for a personal trainer to help guide you on your path to personal fulfillment, it may be a good idea to make sure he or she does not instead set you on a path to pain. In a split decision, the Appellate Division, Third Department, has ruled that where a gym patron suffered a back injury while performing a squat exercise pursuant to a personal trainer's written instructions, a jury should generally decide whether the patron assumed the risk of injury. Under the well-settled doctrine of assumption risk, a person who voluntarily participates in a recreational activity is deemed to have assumed the inherent risks of that activity. Plaintiff Dianne A. Layden took part in a personal training session at a fitness center with a personal trainer, defendant Angela Plante. Prior to her training session, plaintiff advised Ms. Plante that she had a history of back problems. Ms. Plante supervised plaintiff's training session, and provided her with written instructions on how to repeat the exercises independently. Plaintiff returned to the gym days later, and attempted to perform a weight-lift move known as a "Smith squat," as described in the written instructions. While performing the maneuver, plaintiff experienced back pain, which thereafter required surgery to correct two herniated discs. Plaintiff commenced a lawsuit against the trainer, and the owner of the fitness center. The defendants each moved for summary judgment based on the doctrine of assumption of risk. The Third Department reversed the trial court's decision granting the defendants summary judgment, and ruled that a jury should decide whether plaintiff assumed the risk of injury when attempting to perform the squat exercise. The court noted that the application of the assumption of risk doctrine is typically a question of fact best resolved by a jury. Specifically, the majority found that the plaintiff raised a question of fact as to whether the trainer's potentially misleading directions "unreasonably heightened the risks to which [plaintiff] was exposed." Plaintiff's experts testified that the trainer improperly instructed plaintiff to "stick her butt out" while performing the squats. Instead, plaintiff's experts averred that a person should maintain a straight back when performing Smith squats. So this New Year, instead of assuming that your personal trainer will prevent you from getting injured, you may wish to simply tell him or her to "butt out" of your workout. Layden v. Plante, 2012 WL 6698873, 2 (3d Dept. 2012). http://www.nycourts.gov/reporter/3dseries/2012/2012_09126.htm Many thanks to Steve Kaye, Jr. who assisted with this post.   Previous Next Contact

News An Expert Opinion Doesn't Always Defeat A Summary Judgment Motion (NJ) August 30, 2013 < Back Share to: In Muccia v. El Coronado Condo Assn, an unpublished opinion, New Jersey's Appellate Division affirmed the trial court's granting of summary judgment in a personal injury action to defendant, a resort association. Plaintiff rented a condominium in the resort and while inside her rented unit, tripped over one step leading from the living room to the foyer. At the close of discovery, defendant moved for and was granted summary judgment. Plaintiff appealed on the basis that her expert report created a triable issue of fact as to whether a hand rail was required for the step. The Appellate Division, however disagreed with plaintiff and affirmed the trial court's decision. The court highlighted that plaintiff's expert report was issued five days prior to plaintiff's deposition and months before any defense deposition. In addition, the court emphasized the assertions in defendant's expert report that the code provisions cited in plaintiff's expert report were inapplicable to the particular interior step at issue. Finally, the court noted that Bureau of Housing Inspection reports from 2004 and 2009 found the particular condo unit where plaintiff was injured to be absent of any violation (information also contained in defendant's expert report). Because plaintiff did not dispute the assertions in defendants expert report in her opposition to the summary judgment motion, the Appellate Division found that plaintiff's expert report did not raise a triable issue of fact. Special thanks to Alison Weintraub for her contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Intentional Assault Does Not Trigger Duty to Defend (PA) April 10, 2019 < Back Share to: The Superior Court of Pennsylvania recently affirmed a trial court’s entry of compulsory nonsuit in favor of the carrier surrounding a coverage issue pertaining to both a Homeowner’s insurance policy and an Umbrella insurance policy. In Kiely on Behalf of Feinstein v Philadelphia Contributionship Insurance Company, the Court determined that the intentional tort allegations set forth in the underlying complaint did not constitute an occurrence triggering coverage by the insurance carrier. The underlying lawsuit arose when the plaintiff, Kiely, negotiated an oral employment contract for home aid services on behalf of Christine Feinstein with Nydia Parkin. After Parkin began her employment, Feinstein allegedly attacked her. Thereafter, Kiely terminated Parkin’s employment. As a result of the attack, Parkin filed a lawsuit alleging the following claims: (1) assault and battery; (2) intentional infliction of emotional distress; (3) breach of contract; (4) false imprisonment; and (5) punitive damages. At the time of the attack, Feinstein maintained two insurance policies with Philadelphia Contributionship Insurance Company (“PCIC”) which included a Homeowners policy and an Umbrella policy. Under the Homeowner’s policy, coverage was available for personal liability resulting from bodily injury caused by an “occurrence.” The “occurrence” language was defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy also included limitations such as excluding coverage for an expected or intended injury. At the same time, the Umbrella policy provided extended coverage for liability arising from bodily injury as well as for liability arising from certain personal injuries. The Umbrella policy also included limitations such as excluding coverage for an expected or intended injury as well as personal injuries “sustained by any person as a result of an offense directly or indirectly related to the employment of this person by the insured.” As such, both policies provided coverage in the event a suit was brought against the insured in which the policies applied. In respect to the current lawsuit, PCIC declined to coverage to Feinstein under both policies. In response, Kiely commenced this litigation seeking declaratory judgment and further asserting breach of contract and bad faith claims. PCIC asserted that the intentional torts alleged in the underlying lawsuit were not “occurrences” as defined under the policies. In contrast, Kiely introduced evidence that Feinstein lacked the mental capacity to intentionally assault Parkin in the underlying matter. The trial court entered a nonsuit in favor of PCIC after finding that Kiely failed to introduce evidence of an “accident” which was required in order to trigger coverage for an “occurrence” under the policy. Upon review of the Superior Court, the trial court’s entry of a compulsory nonsuit was approved. The Court held that, given the allegations set forth in her complaint, Feinstein’s assault on Parkin was an intentional tort rather than an accident which would not trigger any duty to defend or indemnify under the policies. Furthermore, the Court noted that it was improper for the trial court to allow Kiely to attempt to introduce evidence of Feinstein’s lack of mental capacity for the purposes of committing intentional torts. Rather, when insurance coverage issues are concerned within a declaratory judgment action, the allegations in the underlying lawsuit should control the analysis without the entrance of extrinsic evidence. As the underlying lawsuit did not aver that Feinstein lacked the mental capacity for intentional conduct, such evidence cannot be introduced into the record or considered by the trial court. Thanks to Zhanna Dubinsky for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Dennis Wade to Speak At New York State Bar Association CLE Coverage Program March 9, 2018 < Back Share to: Each Spring, the New York State Bar Association hosts a Continuing Legal Education Program dedicated to coverage issues. This year, Dennis, a sports maven (and a weekend warrior), will discuss how the judiciary addresses or balances the risks inherent in sport and recreational activity. His written submission, with co-author Nicholas Schaefer, is entitled: Liability for Sporting and Recreational Activities. If you care to attend live, here is a link to the program www.nysba.org/PremisesLiability. Previous Next Contact

News Open And Obvious Danger Leaves Plaintiff In the Pit (NY) August 26, 2022 < Back Share to: In Lebron v. City of New York, NY Slip Op 04960 (2nd Dept. 2022), a claim was filed by plaintiff when he fell into an inspection pit for vehicles at the garage facility operated by the New York City Taxi & Limousine Commission. Defendants moved for summary judgment arguing that the condition was an open and obvious defect and it did not require any duty by the property owner to warn the public. “There is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous" (Rosenman v Siwiec, 196 A.D.3d 523, 524 [internal quotation marks omitted]; see Cerrato v Jacobs, 173 A.D.3d 1134, 1135; Schiavone v Bayside Fuel Oil Depot Corp., 94 A.D.3d 970, 971; Rivas-Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 557), or "where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it" (Cerrato v Jacobs, 173 AD3d at 1135; see, Torres v State of New York, 18 AD3d 739). The City however argued that an inspection pit in a taxi facility would be considered an inherent part of the nature of the property. Although the trial court judge rejected defendants’ argument, the Second Department overturned and granted summary judgment dismissal to the City. The judge’s panel felt that the inspection pit was an open and obvious condition that was not inherently dangerous because of the nature of the facility, and plaintiff’s expert affidavit in opposition failed to specify any violation of an applicable statute or relevant industry standard showing the City’s negligence. The takeaway from this case is that the open and obvious standard is fluid and applicable on a case-by-case basis. Under any other circumstances, a large hole in the ground without any perimeter guard or fence would be considered dangerous, except in a taxi garage setting where one would expect to find it. Thanks to Ray Gonzalez for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact