News Court of Appeals Reconciles Statute of Limitations on No Fault Claims (NY) May 31, 2018 < Back Share to: In Contact Chiropractic, P.C. v. New York City Transit Authority, the Court of Appeals, the highest Court in NY, tackled the split between the First and Second Departments regarding the statute of limitations in no-fault claims. In 2001, Girtha Butler was injured as a passenger on a bus owned by the New York City Transit Authority. NYCTA did not have no-fault coverage, but was self-insured with respect to that risk. Contact Chiropractic provided medical treatment to Butler and she assigned to them her right to recover first-party benefits from NYCTA. Contact Chiropractic submitted its claims to NYCTA from March 14, 2001 – August 27, 2001. On January 8, 2007, plaintiff commenced an action seeking reimbursement for outstanding invoices under CPLR §213 (2) which establishes a six-year period of limitations for an action based upon contractual obligation or liability. NYCTA moved for dismissal under CPLR §214 (2) which applies a three-year statute of limitations to actions to recover upon a liability created or imposed by a statute because NYCTA is self-insured. NYCTA relied on the First Department case of M.N. Dental Diagnostics, PC v. NYCTA which stated that the obligation to provide no-fault benefits arises out of the no-fault statute and as such, the three-year statute of limitations applies. Contact Chiropractic opposed based on the Second Department case of Matter of ELRAC, Inc. v. Suero which stated that while an injured person’s claims for benefits are statutorily mandated, they arise out of an insurance contract and as such, are subject to the six-year statute of limitations. The Court of Appeals resolved the split in authority in favor of the First Department and held that self-insured entities are bound by a three, not six, year statute of limitations. In matters involving no-fault claims against insurance companies liable for no-fault benefits due to the issuance of an insurance policy, the six-year statute of limitations still applies. This is a critical distinction among those of us who deal in No Fault or PIP law from time to time. Thanks to Mehreen Hyatt for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Who Is Considered A Vehicle Owner Under New York Vehicle And Traffic Law §388? (NY) September 10, 2021 < Back Share to: In Walker v. Town of Webster, the Appellate Division, Fourth Department addressed whether a former vehicle owner was considered an owner for the purposes of liability under Vehicle and Traffic Law §388. Plaintiff in that case allegedly sustained personal injuries when he was struck by a vehicle operated by defendant Buck. However, plaintiff also sued defendant Osborn, who had transferred ownership of the vehicle several months before the accident, for vicarious liability under Vehicle and Traffic Law §388. Osborn moved for summary judgment on the grounds that he no longer owned the vehicle, and the motion was granted by the Supreme Court. The Appellate Division reversed, finding that there was conflicting evidence as to the ownership of the vehicle. The court stated that “Vehicle and Traffic Law §388 (1) provides in relevant part that every "owner of a vehicle used or operated in this state shall be liable and responsible for . . . injuries to person or property resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner". The statute further provides that an " 'owner' shall be as defined in section one hundred twenty-eight" of the Vehicle and Traffic Law which in turn states that an owner is a "person, other than a lien holder, having the property in or title to a vehicle or vessel". (citations omitted). The court explained that while Osborne provided evidence that the vehicle was registered to the co-defendant, New York State Department of Motor Vehicles records showed that the vehicle was still titled to Osborn. Given this conflicting evidence, summary judgment was not appropriate. This decision serves as a reminder that in cases involving claims for vicarious liability under Vehicle and Traffic Law §388(1), the court will consider a vehicle’s title as evidence of ownership. Thank you to Corey Morgenstern for his contribution to this post. Please e-mail Andrew Gibbs with any questions. Previous Next Contact

News NY App. Div.: Insurer May Be Required to Provide Coverage Pursuant to Exclusion Clause in Commercial April 2, 2010 < Back Share to: In Majawalla v Utica First Insurance Co, the plaintiff’s owned commercial property leased to a convenience store proprietor. A woman allegedly fell in the parking lot of the store and commenced a personal injury action. The owner’s sought coverage from Utica (the tenant’s insurer) who disclaimed because the owner’s were not listed as additional insured’s under the policy. However, the Appellate Division denied Utica’s motion for summary judgment based on language in the commercial liability section of the policy. The policy contained an exclusion that stated Utica would not pay for bodily injury or property damage liability assumed under a contract. However, this exclusion expressly stated it did not apply to an "incidental contract." By including this language, the court found that the lease and policy raised a triable issue of fact as to whether Utica was obligated to defend and indemnify the owners. Additionally, Utica also disclaimed based on a provision in which that expressly excluded from coverage for parking lots. However, because this provision appeared in the "property coverages" section of the policy, and not the "commercial liability coverages" portion, the policy did not expressly exclude from coverage based on the commercial liability section for incidents occurring in the parking lot. Special thanks to William K. Kirrane for his contributions to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_02520.htm Previous Next Contact

News Fall From Height Not Necessary to Sustain a Fall From Height Injury June 23, 2009 < Back Share to: In Peters v. Kissling Interests, Inc., the plaintiff was standing on a window sill that was several feet above the floor, attempting to remove the window trim with a pry bar. A piece of loose trim unexpectedly broke free from the window and he began to fall backwards off the window sill. When the plaintiff grabbed the window sash to prevent himself from falling, the window shattered and a piece of glass struck his wrist. The lower court granted the defendant's motion for partial summary judgment dismissing the Labor Law § 240(1) claim holding that the plaintiff did not actually fall from a height. The Appellate Division, however, reversed and held that a worker is protected by Labor Law § 240(1) when he or she is subject to an elevation-related risk and the failure to provide any safety devices to protect the worker from such a risk is a proximate cause of his or her injuries. The fact that the plaintiff here did not actually fall was irrelevant. Thanks to Cheryl Fuchs for her contribution to this post. http://www.courts.state.ny.us/AD4/Court/Decisions/2009/06-05-09/PDF/0498.pdf Previous Next Contact

News Intentional or Unintentional? That Is The Question. February 22, 2018 < Back Share to: The Eastern District Court of Pennsylvania recently ruled that a loss caused by the acts of a mentally ill insured were barred from coverage, as the loss was not accidental. In Robinson v. Allstate, the husband, a co-insured set fire to his house resulting in various damage. The insurer disclaimed coverage for the loss contending that the loss was not “accidental”, as required by the policy. The wife, the other co-insured under the policy, argued that her husband’s actions were not intentional, as he was psychotic at the time of the occurrence. The wife produced various medical documents evidencing her husband’s subsequent involuntary hospitalization and treatment after the incident. In response to the wife’s argument, the insurer countered that neither of the insureds had proffered any expert medical evidence showing that the husband’s medical illness prevented him from performing an intentional act. Rather, the only evidence regarding intent was the husband’s prior statements, which indicated that he had intended to destroy the house because he believed it was “demonic and need[ed] to be taken down”. As such, the court concluded while the husband’s actions may have been irrational, it had no bearing in determining whether coverage was provided under the policy. Thus, the only evidence before the court indicated that the husband’s intent was to burn the house down and, therefore, there was no coverage provided under the policy on this basis. Consequently, this case illustrates if there is evidence suggesting that that an insured acted with intent, the insured will likely need to proffer additional evidence, in this instant case, medical expert testimony, establishing that the insured’s actions were not intentional –to defeat a claim that coverage is not provided under a policy because the loss was not “accidental”. Thanks to Colleen Hayes for her contribution to this post.       Previous Next Contact

News Teachers Only Required To Provide Reasonable Supervision (NY) July 28, 2023 < Back Share to: A recent case reiterated the standard of care required of teachers in NYC schools. In K. L. v. City of New York 2023 NY Slip Op 03914 (2nd Dept. 2023), plaintiff was a minor in a classroom under the instruction and supervision of a First-grade teacher and paraprofessional. At one point, the students were sitting on the floor and asked to stand up to return to their desks. The teacher was walking toward the classroom phone when another child’s foot suddenly extended out and tripped her up, causing her to fall on the plaintiff. The City of New York, Department of Education and the teacher were sued for negligence and then moved for, and were granted, summary judgment at the end of discovery arguing that they could not be found liable for the accident. Plaintiff appealed and the Second Department affirmed the trial court's decision. First, the Court reviewed the controlling caselaw on the duty of care owed by the Dept. of Education, and its teachers, to attending children. "Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (J.F. v Brentwood Union Free Sch. Dist., 184 A.D.3d 806, 807). "'A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent'" (Godoy v Central Islip Union Free Sch. Dist., 117 AD3d 901, 901). "However, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, [then the] lack of supervision is not [a] proximate cause of the injury and summary judgment in favor of a defendant charged with the duty of reasonable supervision is warranted" (M.P. v Central Islip Union Free Sch. Dist., 174 AD3d 636, 637). Using the controlling case law, the Court reasoned that the teacher’s action of asking the students to stand up and walk back to their desk while then almost immediately taking a step toward the ringing classroom phone was such an insufficient amount of time, that any stronger supervision could not have prevented the accident. Thus, the teacher’s lack of supervision could not be found as a proximate cause of the injury. This decision shows that while a school and its teachers have a strong duty to protect and reasonably supervise children while they are in school, the duty is not absolute. A reasonable supervision standard is applied wherein if a stricter scrutiny and supervision of the children could not have changed the outcome of the incident, then the lack of adequate supervision cannot be used to support the breach of duty claim. Thanks to Raymond Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News NJ Appellate Division Denies Late Notice Of Claim. September 28, 2009 < Back Share to: In Parkside Cab Corp. v. Medley, plaintiff, Parkside Cab appealed from the denial of its motion for leave to file a late notice of claim pursuant to the New Jersey Tort Claims Act. The claim arose out of an accident wherein defendant, Medley , was operating a vehicle owned by defendant, New Jersey Department of Treasury, which collided with plaintiff's vehicle. In its motion, plaintiff asserted that it assumed that the accident involved the United States Department of Treasury rather than the State. The Appellate Division affirmed the denial of leave to file late notice finding that even the most cursory of inquiry would have revealed that the vehicle, registered in New Jersey , with New Jersey license plates, was state owned rather than federally owned. http://www.judiciary.state.nj.us/opinions/a2268-08.pdf Previous Next Contact

News Explicit Insurance and Lease Language Govern Ruling on Primary or Excess Coverage (NJ) December 21, 2018 < Back Share to: In Lopez v. Palin Enterprises, Associated, the New Jersey Appellate Division reversed a trial court’s decision that a tenant’s insurance policy provided coverage to the landlord as an additional insured that was excess over the landlord’s own insurance policy where the lease did not require the coverage to be primary. Palin Enterprises, Associated, owned a commercial property and leased part of it to Agile Trade-Show Furnishings, Inc. An Agile Trade-Show employee became injured while using a freight elevator inside the leased premises. Palin, the building owner, tendered the defense to the tenant’s insurer: Wausau Insurance (Wausau). The owner argued it was entitled to primary insurance coverage as an additional insured under the tenant’s policy. The trial court agreed and ordered Wausau to provide primary insurance to the property owner. On appeal, Wausau argued that the “other insurance” language in its policy meant that it provided coverage in excess of the primary insurance policy issued by the property owner’s insurer: Greater New York Mutual Insurance Company. Specifically, the Wausau policy stated that it “shall be excess over any other insurance available to the additional insured whether such insurance is on an excess, contingent, or primary basis, unless [] obligated under a written agreement to provide liability insurance [] on any other basis.” According to Wausau, this policy language supported its position that its policy applied to excess coverage only. The New Jersey Appellate Division agreed with Wausau and reversed the trial court’s order. After conducting a review of the insurance policy, the appellate court found that Agile Trade-Show did not have a contractual obligation to obtain primary insurance for the property owner. Since the lease agreement was a “written agreement,” it could require its tenant to procure primary liability insurance. The lease agreement here, however, did not specify the type of coverage required under its terms. Because the written lease agreement did not specify that the tenant was required to obtain primary coverage, the property owner was afforded excess coverage. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News "Watch your Step" - Court Upholds Defense Verdict in Light of Jury Instruction (PA) April 10, 2019 < Back Share to: The phrase “watch your step!” has new meaning when it comes to jury instructions. At least that’s what the plaintiff, Donna Kaminski, found out in Kaminski v. Sosmetal Products, Inc., et al. (Pa. Commw. Ct. 2019) when she filed a negligence suit against the defendant property owners. The Commonwealth Court of Pennsylvania decided the case following the plaintiff’s appeal of her post-trial motions after the trial court ruled against her. Plaintiff tripped and sustained injuries while walking on a public sidewalk that abutted the Defendants’ property. As a result, Kaminski sued Sosmetal Products, Inc. and the trustees, who are the property owners. In her complaint, Kaminski argued that “a dangerous, negligent and/or defective condition, existed on [D]efendants’ premises and sidewalk . . . and [D]efendants knew or should have known of the existence.” Ultimately, the defendants admitted to responsibility for the sidewalk and its upkeep. Despite this fact, after asking clarifying questions, the jury decided in favor of the defendants. The decision ultimately came down to three jury instructions that were given. Following the trial court decision, plaintiff filed an appeal arguing that only one jury instruction, Pa. SSJI (Civ) 18.80, should have been given. This instruction basically says that those who have the obligation to maintain a sidewalk that abuts their property have a duty to keep the sidewalk “reasonably safe” and to avoid “unreasonable risk of harm to pedestrians who properly use the sidewalk.” The other two instructions dealt with the classification of a pedestrian walking on a public sidewalk (invitee, licensee, or trespasser) and the duty of care for a licensee, respectively. In this appeal, the plaintiff had to demonstrate that the court below had made an error of law or abused its discretion. Plaintiff disagreed with the fact that she was considered a licensee and felt that this instruction unfairly influenced the jury. The court disagreed with the plaintiff’s assertions. First, it contended that it has been well-established under Pennsylvania case law that those who use public sidewalks in the manner of Kaminski’s case are considered licensees, citing Alexander v. City of Meadville, 61 A.3d 218, 221-22 (Pa. Super. 2012). Additionally, the court stated that Restatement Section 342 clearly outlines how licensees, such as the plaintiff, are to be treated by the property owners in regards to a duty of care. Ultimately, the court felt that it would be inappropriate to allow for Pa. SSJI (Civ) 18.80 to be read to the jury without the other two instructions. Therefore, the lower court did not act in error. The bottom line is that plaintiffs cannot dictate the inclusion or exclusion of jury instructions in negligence cases just to suit their arguments and they cannot ignore case law that has clearly established a specific position that may not suit their case. The trial court did not abuse its discretion by including all three jury instructions -- contrary to plaintiff's argument on appeal. Thanks to Gabi Outlaw for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Throw Enough Mud at the Wall, Some Will Stick (NY) July 24, 2018 < Back Share to: In PDF Singletary v. Alhalal Rest., Inc., 2018 WL 3371313, at *1 (2nd Dept. 2018), the plaintiff appealed an order of the Supreme Court, Kings County, that granted the defendants’ motion for summary judgment. Plaintiff alleges that on March 17, 2015, while walking on a sidewalk adjacent to the defendants’ premises in Brooklyn (hereinafter the premises), a “hanging awning, its steel supports and mounting infrastructure suddenly and unexpectedly fell" and injured the plaintiff. The defendants moved for summary judgment, contending that the plaintiff was not struck by the awning. The defendants produced what they claim is photographic evidence of the plaintiff arriving at the premises after the awning fell, and alleged that the plaintiff falsely claimed that she had been struck by the awning. The plaintiff opposed the motion, submitting her own affidavit, photographic evidence of her and ambulance and hospital records. The Second Department reversed and reinstated the complaint, reasoning that the photographic evidence submitted by the defendants did not establish that the plaintiff fabricated her claims. Summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.” See Ruggiero v DePalo, 153 AD3d 870, 872. Furthermore, the Supreme Court should not have granted summary judgment on an issue not raised by the defendants’ motion. The plaintiff had no opportunity to address the issue of whether the defendants had notice of the defective condition that allegedly caused the accident. The plaintiff’s “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. ” See Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54.. Apart from considerations of simple fairness, allowing a summary judgment motion by a defendant to bring up for review every possible defense that could be asserted by that defendant would be tantamount to shifting the well-accepted burden of proof on summary judgment motions. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint. It is not uncommon for a judge to make a ruling based on his or her own interpretation of the law and facts as they were presented. However, the judge must make their ruling pursuant to the law and arguments presented in the motion papers. Therefore, when moving for summary judgment, it is imperative to make every argument possible as the judge is unable to fill in the gaps for you. Some of the issues argued at the appellate level were not preserved for appeal. So here, the defendants are left with a strong liability defense at trial, but are also left with litigation costs, expert costs, and the the risk of a potentially compelling plaintiff to a jury. Thanks to Jonathan Avolio for his contribution to this post. Please email Brian Gibbons with any questions.         Previous Next Contact

News Advice to NJ Jurors: Don't Talk on the Elevator March 10, 2010 < Back Share to: In a recent criminal trial in New Jersey, Police Officer Fine testified on behalf of the State. After he concluded his testimony -- and right before closing arguments -- the officer encountered one of the jurors on the courthouse elevator. The juror told the officer "you did fine." He then added “the defense lawyer was kind of crazy" (according to the juror) or "defense attorneys can be a__holes" (according to the officer). The jury convicted the defendant of cocaine possession shortly thereafter. At some point during deliberations, the police officer reported his conversation to the prosecutor, who then reported this to the judge. The judge conducted a hearing on the issue, and determined the juror exhibited a bias he did not reveal during voir dire, and further, failed to follow the court's instructions to refrain from forming any opinions or reaching any judgment about the evidence until after the case had concluded and the jury had been charged on the law. The Court declared a mistrial, vacated the conviction, and granted the defendant a new trial. The Appellate Division affirmed the decision, agreeing that the juror improperly failed to disclose his prejudicial views during voir dire. Typically, jurors say whatever they can during voir dire in an effort to get excused from a jury. It seems like this juror had a big mouth but bad timing. If you would like further information about this post, please contact Mike Bono at mbono@wcmlaw.com http://www.leagle.com/unsecure/page.htm?shortname=innjco20100302280 Previous Next Contact

News Court Cleans Up Definition of Employee Under Worker's Comp Law (NJ) August 24, 2012 < Back Share to: One of the key issues in dealing with workers' compensation benefits is who is considered to be an “employee” under the law. Recently, the Appellate Division determined that an employee is not necessarily someone who comes to clean your home. In Lukasik v. Holloway, the Appellate Division reversed the judgment of the workers’ compensation judge who found that a cleaning woman was an employee of the owners of the home where she was injured. The cleaning woman, Luz Lukasik, had contracted with the homeowners to clean their home once per week for the sum of $100. On the first day of her scheduled cleaning she was injured, sustaining a fractured hand and wrist. Thereafter, she returned to work, but had others do the cleaning at her direction. The workers’ compensation court found that Lukasik was an employee under the statute, and that she was entitled to more than 110 weeks of benefits due to her injuries. The Appellate Division reversed, holding that Lukasik was an independent contractor because she retained primary control over what work she would do, when she would do it, and how the work would be performed. Additionally, Lukasik was not substantially financially dependent upon the homeowners for her income, nor were her services somehow integral to the homeowners’ regular business. Lukasik was merely cleaning their home. While the Appellate Division specifically stated that it did not find that cleaning people are always independent contractors, this opinion does clarify where the line will be drawn. Thanks to Christina Fullam-Emerson for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com       Previous Next Contact