News NY App Div Rules Gym Teacher's Instruction Sufficient to Support Summary Judgment December 31, 2009 < Back Share to: In Bramswig v. Pleasantville Middle School, a 12-year old plaintiff was injured when a classmate (and teammate) accidently struck him in the mouth with a hockey stick during a floor hockey game at Pleasantville Middle School in Westchester County. The plaintiff's first cause of action was based upon negligent instruction of the "high-sticking" rule by the gym teacher. (Presumably, there were other causes of action in this case in addition to negligent instruction, together with contributory negligence defenses, but none were addressed by the Court in this decision.) The gym teacher was deposed, and testifed that he instructed the students at the beginning of that game, and in fact at the beginning of every gym class, that the practice of "high-sticking" was prohibited in floor hockey (not to mention a double minor in the NHL if injury ensues.) Further, he testified that he defined "high sticking" as lifting one's hockey stick above his or her waist during play.The defendants moved for summary judgment on the issue of negligent instruction, and plaintiff argued that there was a triable issue of fact as to the substance of the gym teacher's warning. Specifically, the plaintiff asserted that it was unclear whether the instruction of "high-sticking" involved raising one's stick above the knees or above one's waist. The Appellate Division, Second Department found that the plaintiff's premised triable issue of fact was academic, in that regardless of the gym teacher's warning, the plaintiff was struck in the mouth by the high stick, and therefore either potential instruction was not heeded by the other student. Accordingly, the defendants' failure to instruct on the "high-sticking" rule was not a proximate cause of the plaintiff's injury, and defendants were granted summary judgment on this issue. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09603.htm Previous Next Contact

News Workers' Compensation Defense Applies to Alter Egos October 13, 2008 < Back Share to: The defense afforded to employers by the exclusivity provision of the Workers' Compensation Law may also extend to suits brought against an entity that is found to be the alter ego of the corporation that employs the plaintiff. In Cappella v. Suresky at Hatfield Lane, LLC, the plaintiff was employed by R.I. Suresky & Son, Inc., a car dealership. The plaintiff claimed that he was injured when he fell in the dealership lot. Since he could not bring suit against his employer, the plaintiff sued Suresky at Hatfield Lane, the owner of the lot. Suresky at Hatfield Lane argued that it was an alter ego of the plaintiff's employer and submitted proof that the plaintiff's employer exercised managerial and financial control over it. The court ruled that this proof sufficiently established a prima facie defense under the Workers' Compensation Law. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07603.htm Previous Next Contact

News NY Municipalities Slip Closer to Insolvency With Court Assistance December 22, 2010 < Back Share to: Dale San Marco was walking through a Village of Mt. Kisco-owned parking lot on her way to work in broad daylight one wintry Saturday morning in 2005, when she slipped on black ice. The source of the ice seemed to be a pile of snow that the village had created when plowing the parking lot several days earlier. The claim is that the snow melted, causing water to run-off and then re-freeze, as it is wont to do in February. The village had salted the lot one day before San Marco's accident, but "did not employ a work crew on Saturdays and Sundays to monitor the parking lot...." The State of New York, like all states, was cloaked with sovereign immunity at common law and could not be sued. New York now permits citizens to bring actions against municipalities, but such lawsuits are usually limited to cases where the municipality has received prior written notice of the hazard. Mt. Kisco has such a law and it says that the notice requirement applies to claims based upon the "accumulation of snow and ice." But the NY Court of Appeals (our highest court) has ruled in San Marco v. Village/Town of Mount Kisco (NY Court of Appeals, slip opinion No. 223, Dec. 16, 2010) that the plaintiff may continue with her lawsuit even though the municipality did not have prior written notice of the black ice that Saturday morning. Chief Judge Lippman, writing for the court, protests that "We do not hereby create a new burden on municipalities to remove all snow off-premises in order to avoid liability..." But short of having a work crew on duty 24/7 or, in fact, carting the snow off site, isn't that just what this ruling imposes on the municipalities of NY that are already careening toward bankruptcy under the burden of the benefit packages already paid to the work crews that now need to work overtime and sit and watch ice form on the ground 24/7. If you have any questions about this post, please contact John Mulcahy at JMulcahy@wcmlaw.com . Previous Next Contact

News A Typical Slip and Fall with an Atypical $3.64 Million Result (NJ) January 16, 2020 < Back Share to: In Simmons v. Staples Inc., plaintiff James Simmons was browsing for computers in a Staples office supply store. At some point thereafter, an employee nearby in the area was called away and left a box of merchandise on the ground in one of the store’s aisles. While browsing, plaintiff took a step, tripped on the box of merchandise, and fell. Plaintiff allegedly suffered herniated discs in his lumbar spine, lumbar radiculopathy, and a lumbar aggravation injury as a result of the incident. At trial, plaintiff testified that he first experienced pain the day after his trip and fall. His pain eventually began radiating into his lower extremities and transitioned to numbness. Treatments consisted of physical therapy, epidural steroid injections, a lumbar discectomy, and a lumbar laminotomy. Despite this extensive surgical history, plaintiff continued to experience pain and numbness daily and could not tolerate the physicality of his role as a deacon to his church. Plaintiff presented two experts, a pain management doctor and a neurosurgeon, who testified his ailments were permanent. While plaintiff’s alleged injuries and subsequent treatments are common, the jury verdict was not. After a deliberation, the Mercer County jury (with a seat in Trenton, New Jersey) awarded the plaintiff $3,500,000 in damages for pain, suffering, and loss of enjoyment of life; $52,030.01 for past medical expenses, and $96,000 for future medical expenses. Based on an 80/20 finding of comparative negligence, the net award was approximately $2,918,424. Although Staples is currently seeking a new trial or remittitur of the damages award, arguing that the pain and suffering award of $3,500,000 is disproportionate to plaintiff’s lumbar injuries, this case serves as quite a shocking reminder that juries can be unpredictable – especially when defendants have admitted liability and make a stand solely on causation. In this case, the jury was clearly unpersuaded that plaintiff’s lumbar disc herniations were degenerative in nature and painted with a broad damages brush as a result. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News WCM Is Pleased to Announce That Vivian Turetsky Has Been Promoted to Counsel February 5, 2019 < Back Share to: With effect as of January 1, 2019, WCM is pleased to announce that Vivian Turetsky has been promoted to the rank of counsel. Vivian focuses her practice on insurance coverage litigation on behalf of general liability, fine art, and jeweler’s block insurers in both state and federal courts in New York and New Jersey. Vivian joined WCM after practicing commercial litigation at both large and boutique litigation firms. Previous Next Contact

News Email Update: NJ Limits Company's Right to Read Personal Employee Emails March 31, 2010 < Back Share to: In our post of July 9, 2009, we discussed a company's right to search for and use an employee's personal email communications with her attorney exchanged through a company provided laptop computer. Stengart v. Loving Care Agency, Inc. In Stengart, the New Jersey Appellate Division decided in favor of the employee and privacy advocates in a case closely followed by the employment bar. The New Jersey Supreme Court believed that the issue was so important that it granted interlocutory leave to appeal and stayed the underlying action until it reviewed that decision. The facts in Stengart were relatively simple. Marina Stengart was an employee of Loving Care who was provided with a laptop for company related work. The employee handbook of Loving Care alerted employees that emails were considered part of the company's business records and were to used principally for business purposes. Athough employees were cautioned against considering such communications either private or personal, the handbook explicitedly permitted occasional personal emails. Stengart was not a happy employee. While contemplating legal action against her employer, she used her company laptop to access her private, password-protected Yahoo mail account through the internet to communicate with her attorney. When she left the company a short time later, she turned in her laptop and thereafter filed an employed related civil action against Loving Care. In response, the company's lawyers retained a forensic expert who recreated her laptop's harddrive and retrieved several of the emails exchanged between Stengart and her attorney. These emails were eventually identified in the company's discovery responses, which drew a vigorous objection by the plaintiff. The Supreme Court was faced with the specific question of whether these emails were protected by the attorney client privilege and the broader question of under what circumstances an employer may search for and use the contents of email communications between an employee and her attorney when those communications are facilitated by the company's electronic resources. A sticky wicket indeed. Siding with the employee and advocates of privacy in this electronic age, the Supreme Court ruled that Stengart had a reasonable expectation of privacy under the circumstances. Although the company provided and presumably owned the laptop, she used her private, password-protected Yahoo email account --not the company server or email system-- to communicate with her attorneys. In addition, the company employee handbook was ambiguous in its email policy. On the one hand, the handbook cautioned against any privacy expectation when using the internet or exchanging emails while, on the other hand, it permitted occasional personal email use. On the balance, the court found that the employee's right to confidential communications with her attorney trumped the company's absolute right to monitor and access all email communications assisted by company resources. Stengart provides important guidance on the scope of an employee's legitimate privacy expectations in the work place when electronic communications are involved. While an employer should use care in formulating a clear and well defined electronic use policy in its handbook, there are limits to a company's legal right to search for and use an employee's personal email exchanges no matter how what the handbook states. If you have any questions about this post, please contact Paul Clark at pclark@wcmlaw.com http://www.judiciary.state.nj.us/opinions/supreme/A1609StengartvLovingCareAgency.pdf Previous Next Contact

Zachary Lawrence Associate Attorney Long Island zlawrence@wcmlaw.com 516.574.4775 Professional Experience Zachary Lawrence litigates general liability actions, including personal injury and property damage cases, premises liability and construction defect claims, and contract disputes. His work includes all aspects of these cases from inception to resolution involving various forms of dispute resolution and litigation, including drafting pleadings and motions, attending depositions, performing legal research, attending hearings and mediations, and preparing for trial. Prior to joining WCM, Zachary worked as an Associate Attorney practicing civil litigation with experience in plaintiff’s personal injury and insurance defense. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education B.S., St. John’s University J.D., Brooklyn Law School Bar Admissions New York Court Admissions New York Appellate Division, Second Department United States District Court for the Southern District of New York

News Superior Court Holds Fair Share Act Does Not Apply If Plaintiff is Not Found Liable (PA) April 8, 2021 < Back Share to: In Spencer v. Johnson, 2021 WL 1035175 (Pa. Super. Mar. 18, 2021), the Pennsylvania Superior Court issued an opinion with serious implications on the interpretation of the Fair Share Act. By way of background, Pennsylvania courts had previously long adhered to the doctrine barring recovery for contributory negligence, which held that if a plaintiff’s own negligence contributed even 1% to his injuries, he/she was completely barred from holding any other party liable. In 1976, the Legislature enacted the Comparative Negligence Act, which replaced this harsh law of contributory negligence by allowing a partially negligent plaintiff to recover from negligent defendant(s), provided that his/her negligence was not greater than that of the defendants. Under comparative negligence, a plaintiff’s recovery would be reduced by the percentage of his own negligence. However, under the doctrine of joint and several liability, the plaintiff could recover the full amount of the allowed recovery against any defendant against whom the plaintiff was not barred from recovery, even one who was only 1% liable. Then, in 2011, Pennsylvania adopted the presently prevailing law, the Fair Share Act, which modified joint and several liability so that, except in certain cases, only a defendant who has been found at least 60% liable could be held responsible for paying the entire verdict. In the most recent case addressing the Fair Share Act, Plaintiff, Keith Spencer, was seriously injured when he was struck by a vehicle driven by Cleveland Johnson (“Cleveland”) while walking in a marked crosswalk in West Philadelphia. Cleveland was intoxicated at the time of the accident. The vehicle he was driving was owned by Philadelphia Joint Board Workers United, SIEU (“PJB”), who employed Cleveland’s wife, Tina. PJB provided Tina with the vehicle as a company car, because she worked as an organizer and business representative for the union and needed to be available at any hour day or night. Evidence showed that Cleveland had driven Tina’s vehicle in the past, but that Tina was unaware that he was driving it at the time of the accident. On the day of the accident, she had driven the vehicle to her mother’s house, and unbeknownst to her, Cleveland had retrieved her keys and was attempting to move the car to an empty parking space when the accident occurred. Spencer’s Complaint asserted claims of: (1) Negligence against Cleveland; (2) Negligence against Tina; (3) Negligence/Negligent Entrustment against Tina; (4) Negligence/Negligent Entrustment against PJB; and (5) Negligent Hiring, Negligent Retention, and Negligent Supervision against PJB. The parties did not dispute that Spencer was not at fault and that Cleveland was negligent in the operation of the vehicle. At trial, the jury awarded Spencer $683,311.47 for past medical expenses, $7,300,000 for future medical expenses, $5,000,000 for non-economic damages for a total verdict amount of $12,983,311.47. The jury allocated liability as follows: Cleveland (36%), Tina (19%), and PJB (45%). The trial court denied in part and granted in part various post-trial motions and all parties appealed. On appeal, Spencer argued that the trial court erred when it refused to mold the entire verdict against PJB because its direct and vicarious liability (64% –based on PJB’s direct liability of 45% and it’s vicarious liability for Tina’s 19%) exceeded the 60% threshold of the Fair Share Act. Spencer argued that Tina’s negligence should be imputed to PJB because she was purportedly acting in the course and scope of her employment at the time of the accident. Although the jury made no definitive finding that Tina was acting as an employee/agent, because she was “continuously on call,” a jury could have reasonably concluded that she was acting in the course and scope of her employment when she drove the company car to her mother’s house on the day of the accident. The court concluded that the jury’s general verdict warranted a finding that PJB was vicariously liable for Tina’s negligence and therefore, the theory of joint and several liability applied because PJB’s and Tina’s combine liability exceeded the 60% threshold. Having resolved the issue in Spencer’s favor, the court nevertheless plunged ahead in finding another basis to mold the verdict. Looking to the language of the Fair Share Act, the court observed that at the language of Section 7102(a) provides the “general rule” that a plaintiff’s contributory negligence is not a complete bar to recovery. It then provides two scenarios based upon comparing the plaintiff’s negligence with that of the defendants. First, if the plaintiff’s negligence was a greater cause of his injuries than the defendants’ negligence, then the plaintiff’s recovery is barred. Second if the defendants’ negligence was a greater cause of the plaintiff’s injuries than the plaintiff’s own negligence, then the plaintiff’s recovery against the defendant will be reduced in proportion to the amount of the plaintiff’s own negligence. The court noted that neither scenario dealt with the circumstances in this case, where there had been no allegation of a plaintiff’s own negligence, let alone no jury finding of contributory negligence. Therefore, as an alternative basis for relief, the court would have concluded that the trial court erred in applying the Fair Share Act to this case because Spencer was never alleged or found to have contributed to the accident. Thus, PJB and Tina would still be jointly and several liable for Spencer’s injury. This holding is troublesome for several reasons. First, it reopens the possibility of a defendant found minimally liable, or even only 1% liable, being compelled pay the entire verdict if no liability is apportioned to the plaintiff. While those situations may not be common, they could be financially devastating when they do occur. Second, the court went well beyond the facts of the case and, after granting the relief requested, promulgated an alternative theory of relief that was not even sought by Spencer on appeal. As such, the court’s decision should properly be considered dicta. Third, the court’s opinion may also be deemed advisory because it was issued by only a two-judge panel. On April 1, 2021, both Tina and PJB filed Applications for Reargument en banc, and we have likely not heard the end of this issue. We shall monitor and advise. Thanks to James Scott for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Estate of Family Who Fled Nazi Germany Sues Met For Return of Picasso Allegedly Sold Under Duress November 18, 2016 < Back Share to: The estate of a family who fled Nazi Germany recently sued the Met Museum in the U.S. District Court, Southern District of New York, claiming that it was the rightful owner of a work by Pablo Picasso titled “The Actor.” According to the complaint in Zuckerman v. The Metropolitan Museum of Art, Paul Friedrich Leffmann, a successful and wealthy businessman from Cologne, Germany, purchased the work in 1912. After Germany’s Nazi regime implemented the Nuremberg Laws, the Leffmanns were forced to emigrate to Italy in 1937. There, according to the complaint, they faced the same kind of persecution they suffered in Germany. The plaintiffs further alleged that, due to the discriminatory and confiscatory laws in Italy, and the regulatory barriers associated with fleeing to countries such as Switzerland and Brazil, Lefmann, sold the Work under duress at a deep discount in 1938. After the Work changed hands at least two more times, the Work was donated to the Met in 1952. According to the complaint, the Met either knew and failed to disclose; or should have known that the Work had been owned by a Jewish refugee who only disposed the Work under duress because of Nazi and Fascist persecution. In support of this allegation, the plaintiff cited, among other things, State Department efforts to warn museums, libraries, art dealers, and others to use vigilance in identifying “cultural objects with provenances tainted by World War II.” The plaintiff also alleges that the Met published an inaccurate provenance for the Work, which indicated that Leffmann sold the Work much earlier than 1938. According to news reports on the case, the Met is expected to argue that Leffmann actually sold the Work at market value in 1938 and was therefore, not a sale under duress. The Met is also expected to argue that inaccuracies in the Work’s provenance were based on a former buyer’s inaccurate recollection rather than anything nefarious. It will be interesting to see how Zuckerman unfolds. There is no denying that the Nazi regime looted art and that many sales were made under duress. One question is whether a valuation analysis can shed light on the issue of whether this Work was sold at the then value or under duress. Watch this space. Thanks to Mike Gauvin for his contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Borrowed Employee Doctrine Prevents Negligence Plaintiff's Recovery (PA) November 12, 2019 < Back Share to: On November 7, 2019, the Superior Court of Pennsylvania affirmed an order granting summary judgment in favor of defendant Streamlight, Inc on the grounds that the plaintiff's action was barred by Section 303(a) of the Workers’ Compensation Act, 77 P.S. 481(a). The case of Burrell v. Streamlight arises out of a work-place accident in which plaintiff fell while disposing of trash during the course of his employment . Burrell had been a temporary worker hired by Aerotek, Inc., a recruiting agency, and was assigned to work for Streamlight in a temporary capacity. Burrell filed a complaint in Montgomery County against Streamlight alleging his injuries were caused by a dangerous condition in Streamlight’s facility. In its answer, Streamlight pled that it was immune from suit under the Workers’ Compensation Act. Following the close of discovery, Streamlight filed a motion for summary judgment on two grounds: (1) it was immune from tort liability under the Workers Compensation Act; and (2) that Burrell could not prove negligence. The trial court granted Streamlight’s motion for summary judgment on the ground that Burrell was Streamlight’s employee under the borrowed employee doctrine. Following this decision, Burrell appealed. On appeal, the Superior Court reviewed a contract between Aerotek and Streamlight which stated Burrell was paid by Aerotek and that all personnel supplied by Aerotek were employees of Aerotek, not Streamlight. Aerotek was also responsible for withholding taxes from Burrell and providing workers’ compensation insurance. However, the contract also stated that all work would be performed on Streamlight’s premises under the supervision of Streamlight employees. Streamlight also had the authority to fire Burrell. At his deposition, Burrell testified that Streamlight set all of his hours, job duties and interviewed him prior to his employment. Burrell also testified that all of his day-to-day activities were controlled by Streamlight and he had no significant interactions with Aerotek employees while working for Streamlight. Under the borrowed employee doctrine, where a worker employed by one company is furnished to another to perform work, the latter company is his employer under the Workers’ Compensation Act if it has the right to control his work and the manner in which it is performed. Here, the Court ruled that there was no conflict or ambiguity in the evidence that Burrell was an employee of Streamlight for Workers Compensation Act purposes. Streamlight directed and controlled Burrell’s work and the manner in which it was performed which is all that is required under the borrowed employee doctrine. Thus, the PA Superior Court affirmed the entry of summary judgment. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. 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

Construction accidents often involve catastrophic injuries, significant wage claims, and extensive life care plans for future medical treatment. To properly defend these high stakes cases, counsel needs to be expert in more than the applicable legal defenses. Counsel needs to know the dynamics of the specific industries, the substantive worksite defenses, and, most important, how to transfer the risk to the proper party pursuant to contract or liability position. WCM lawyers have represented business owners, investment groups, general contractors, and all types of sub-contractors in construction accidents involving asbestos remediation, scaffolding collapses, fire losses, and the like. We know how to navigate complex contractual provisions and statutory claims, such as the “grave injury” in New York, in order to both pursue and defend claims for contribution and indemnification. WCM teams with physicians, engineers, accountants, economists, and employment experts to mitigate high value damage claims. And we work with construction professionals in drafting contracts and agreements in order to help them manage risk before accidents occur. Construction Litigation Construction accidents often involve catastrophic injuries, significant wage claims, and extensive life care plans for future medical treatment. To properly defend these high stakes cases, counsel needs to be expert in more than the applicable legal defenses. Counsel needs to know the dynamics of the specific industries, the substantive worksite defenses, and, most important, how to transfer the risk to the proper party pursuant to contract or liability position. WCM lawyers have represented business owners, investment groups, general contractors, and all types of sub-contractors in construction accidents involving asbestos remediation, scaffolding collapses, fire losses, and the like. We know how to navigate complex contractual provisions and statutory claims, such as the “grave injury” in New York, in order to both pursue and defend claims for contribution and indemnification. WCM teams with physicians, engineers, accountants, economists, and employment experts to mitigate high value damage claims. And we work with construction professionals in drafting contracts and agreements in order to help them manage risk before accidents occur. Practice Lead Georgia Coats Partner +1 212 267 1900 gcoats@wcmlaw.com Download Download