News Landlord's Duty Arises From Ability And Opportunity To Control Conduct April 28, 2012 < Back Share to: In Banner vs. New York City Housing Authority, the infant plaintiff was injured when, while sitting on his bicycle in the courtyard at the rear of the defendant's building, he was hit in the eye by a bottle that was allegedly thrown from the roof of the building. The plaintiffs allege that NYCHA was negligent in failing to secure the roof and in allowing persons to use it in a dangerous and defective manner. The court noted that "a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances." This duty includes an obligation "to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person. However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so." The defendant submitted affidavits from its supervisor of caretakers and a professional engineer establishing that the defendant was required to keep the door to the roof unlocked for fire safety purposes. The testimony of the infant plaintiff established that neither he nor his friends actually saw a person on the roof throw a bottle, and that the alleged perpetrator was unknown, making it possible that the perpetrator was a resident of the building who would have had access to the roof despite any amount of security provided. The plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the conduct through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged. As such, summary judgment was granted to the defendant. Thanks to Sandy Debbas for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03269.htm Previous Next Contact

News No Foul: Plaintiff Assumed the Risk of Playing Basketball (NY) December 7, 2017 < Back Share to: In Hanson v. Sewanhaka, et. al, the plaintiff allegedly was injured during a basketball game in a gym class at Elmont Memorial High School when he was kicked in the leg by another student, the defendant Malik Freeman. The plaintiff sued the other student and the Sewanhaka Central High School District. Both defendants moved for summary judgment and the Supreme Court granted both motions. On appeal, the defendants cited to the doctrine of assumption of risk, which holds that when a person consents to the commonly associated risks inherent in the sport and freely assumes a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk. Here, a leg injury caused by a collision between two players is certainly a commonly associated risk while playing basketball. In his brief, plaintiff alleged that Freeman kicked plaintiff intentionally; however, in his complaint the plaintiff had not asserted a cause of action for an intentional tort, and neither the second amended complaint nor the bills of particulars alleged intentional conduct. The court held that a plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars. Therefore, since the defendants established prima facie proof that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants, the Second Department did not find the plaintiff’s argument persuasive. The Second Department also held because the plaintiff testified he chose to play basketball from a number of options, the inherent compulsion doctrine was inapplicable. Voluntary participants in sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of nature of sport or activity generally and flow from such participation; however, the defense is not applicable if the participant is forced to compete or take part in the activity. Since, the plaintiff had options as to which sport to play, he was not forced to participate in this activity; therefore, the Second Department denied that argument and affirmed the Supreme Court’s decision granting summary judgment to both defendants. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News WCM VOLUNTEERS IN PHILADELPHIA FOR ALEX’S LEMONADE STAND April 19, 2024 < Back Share to: On April 10, 2024, amidst the hustle and bustle of Philadelphia, WCM associate Ryan Hunsicker and WCM paralegal Anne Skiles joined with the Pennsylvania Defense Institute, the Philadelphia Association of Defense Counsel and Drexel University’s Thomas R. Kline School of Law, to host an Alex’s Lemonade Stand Foundation fundraiser. The fundraiser was held on Drexel’s campus next to the famous statue of Mario the Dragon at 33rd & Market Street. All in all, a lovely day, an excellent and worthy cause, and a good time was had by all. Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Finding of "Alteration" and Notice Sufficient to Defeat Summary Judgment May 20, 2009 < Back Share to: In Fuchs v. Austin Mall Assoc. LLC, plaintiff's decedent was electrocuted while replacing the ceiling of an elevator located on property owned and/or managed by the defendants. The decedent's representative commenced an action against the defendants alleging common law negligence and causes of action pursuant to Labor Law sections 200, 240, and 241(6). The defendants then filed a motion for summary judgment in relation to plaintiff's claim for common-law negligence and for violations of Labor Law sections 241(6) and 200. The Supreme Court, Queens County, granted the defendants' motion. Plaintiff appealed. The Appellate Division, Second Department, reversed the Supreme Court's ruling and denied the defendants' motion in its entirety. The Court stated that the work the decedent was performing at the time of death constituted an "alteration," and therefore fell within the scope of Labor Law section 241(6). The Court also stated that because the defendants were aware that there were energized electrical circuits in the area where the decedent was working, they had notice of a dangerous condition. As such, even if they did not have control over the decedent's work area, the fact that they were aware of the condition precluded them from prevailing on summary judgment. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03863.htm Previous Next Contact

News Title Claim to $1 Million Sculpture Time Barred (NY) June 3, 2021 < Back Share to: Yula Lipchitz, the wife of famed sculptor Jacques Lipchitz, died on July 20, 2003. During the probate of her will, Biond Fury asserted a claim of ownership in The Cry a 1,100 pound bronze sculpture, valued at around $1 million. Fury claimed that Lipchitz gave him the sculpture in 1997, citing a handwritten note on the back of a photograph of the sculpture as proof. Fury said he stored the sculpture in a warehouse at his expense until it was removed by Hanno Mott, Lipschitz son, who shipped it to a gallery and then loaned it to the French government. Fury subsequently sold his interest in the work to Petitioners David Mirmish, who filed the action against Mott. The Surrogate’s Court ruled in favor of the Fury/Mirmish, finding that a valid gift was made by Lipchitz to Fury. On appeal, the First Department held that the Surrogate Court improperly granted summary judgment because Fury’s testimony as to the transaction with Lipschitz was inadmissible pursuant to New York’s “Dead Man’s” statute. The Appellate Court also held there was in issue of fact as to whether a gift was made because there was conflicting evidence as to whether Lipchitz parted with “dominion and control” of the sculpture. However, the Court held that the petitioner’s claims were barred by the three year statute of limitations for conversion and replevin claims. The court noted a conversion cause of action accrues upon the occurrence of "some affirmative act of asportation” – which occurred here no later than 1998, when respondent had The Cry removed from the Michael Leonard Warehouse without Fury's permission, delivered to the Marlborough gallery and then loaned to the French Government, all in the name of the Lipchitz family. Thus, the Appellate Court reversed the Surrogate’s Court's decision and held Mirmish’s claims of ownership were time barred. For more information about this post, please e-mail mbono@wcmlaw.com http://www.leagle.com/unsecure/page.htm?shortname=innyco20100527413 Previous Next Contact

News Owner Escapes Labor Law Liability By Not Supervising Project (NY) February 28, 2020 < Back Share to: In Boody v El Sol Contr. the Appellate Division addressed the standard a defendant needs to establish to prevail on summary judgment on a Labor Law § 200 claim. The plaintiff was employed as a construction worker for nonparty Caribe Construction Co., a subcontractor hired by the general contractor El Sol Contracting and Construction Corporation, to install temporary scaffolding for a repair project on a bridge in Queens. In order to complete its work, Caribe hired North East Marine, Inc. to provide tugboats and work barges, to transport Caribe's employees, supplies, and equipment around the work site. The plaintiff allegedly was injured while he was attempting to cross between two barges positioned on either side of a pier supporting the bridge. The plaintiff alleged that as he was walking, one of the mooring lines from the tug-barge combination tightened and caught his leg, pinning it against the pillar next to which he was walking. Sol unsuccessfully moved for summary judgment dismissing the claims against it. On appeal, the Appellate Division reversed the ruling and awarded summary judgment to El Sol. The Appellate Division held that Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work. Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed. Where a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation. Expanding on the requirement of supervisory control under the “means and methods” context, the Court held that "a defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed." In contrast, “mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200.” Using this standard, El Sol, established that it did not exercise supervision or control over the performance of the work giving rise to the accident. Thanks to George Parpas for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Investigator’s Materials: Not As Safe As You Thought (NY) April 17, 2013 < Back Share to: In New York City Schools Insurance Reciprocal v. Milburn Sales Co., Inc., the Second Department weighed in on the discoverability of party’s investigator’s materials. Typically, materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has "substantial need" for the materials and is unable to obtain the information without "undue hardship." The party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation.” In Milburn, a fire occurred at the plaintiff’s premises. On the day of and day after the accident, plaintiff’s investigator, Russo Consultants, was present at the scene. Coincidentally, the fire marshal was also conducting his investigation at that time. Six days after the accident, plaintiff wrote to Milburn and its insurer informing them that, based on the fire marshal’s findings, the negligence of Milburn’s employees may have contributed to the accident. After plaintiff commenced the action, Milburn served subpoenas on Russo for documents and depositions of the Russo employees present on the scene. Plaintiff moved to quash the subpoenas, claiming that the materials were prepared solely in anticipation of litigation. Milburn cross-moved to compel production of the requested materials and for the depositions. The Supreme Court granted plaintiff’s motion and quashed the subpoenas. The Second Department modified the decision to compel Russo to comply with the subpoena for documents, holding that plaintiff failed to demonstrate that the materials were prepared in anticipation of litigation. One of the reasons for the court’s decision is that plaintiff apparently proffered only an attorney affirmation containing conclusory assertions. This, it found, was insufficient to meet demonstrate that the documents were immune. The second reason was that plaintiff could not demonstrate that, at the time the documents were prepared, it was contemplating a subrogation action. There are a couple important takeaways from this decision. First, if you are going to assert that documents are immune because they were prepared in anticipation of litigation, you better be able to provide a specific reason why they are immune. Second, if you can support your arguments with more than an attorney affirmation, do so. Special thanks to Gabe Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Expert Affidavit Cannot Overcome Inability To Identify Cause Of Fall August 17, 2010 < Back Share to: It is well established that in a slip and fall action, the plaintiff's inability to identify the cause of the fall is a fatal flaw. In Murphy v. The New York City Transit Authority, the plaintiff was injured when she slipped and fell on a stairway in a subway station. The Transit Authority was granted summary judgment because the plaintiff could not identify the cause of her fall and the Appellate Division affirmed. On appeal, the Appellate Division addressed whether an affidavit of an engineer stating that the stairs violated certain provisions of the New York State Building Code was enough to overcome the plaintiff's inability to identify the cause of her fall. The Second Department held that it would be purely speculative to find that the alleged violations in the engineer's report proximately caused the plaintiff's fall. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04559.htm Previous Next Contact

News To Indemnify, Or Not To Indemnify, That Is The Question (PA) May 16, 2019 < Back Share to: In American South Insurance v. James A. Halbert et al., the Pennsylvania Superior Court ruled on the enforceability of an indemnity provision. The Halbert family agreed to subdivide and develop property in North Cornwall Township. To do so, they purchased a performance bond from American Southern Insurance Co. In doing so, the Halberts agreed to indemnify American Southern from any claims or liability arising from the issuance of the bond. Further, the agreement stated that American Southern had the sole authority to determine for itself and the Halberts whether claims brought upon the performance bond would be settled or defended. The Halberts moved forward with the subdivision development but did not complete certain improvements that the township had required. The township thereafter demanded that American Southern pay for the improvements pursuant to the bond. American Southern sued the Halberts for the money necessary to pay for those improvements and won at the trial court level on a motion for summary judgment. The Halberts appealed and argued that the improvements required by the township were not necessary to the development and, therefore, they did not have to pay. The Superior Court disagreed and affirmed the lower court’s ruling. In the main, there was no genuine factual dispute in the record. Rather, the language of the indemnity agreement, which stated American Southern ultimately had sole authority to determine if a claim was defended or settled, was unambiguous. Further, the township’s demand for additional improvements and the damages to American Southern were matters of record. The Halberts offered nothing to dispute American Southern. Thus, the clear language of the agreement required the Halberts to indemnify American Southern for the money owed to the township. Accordingly, this case reveals that Pennsylvania courts are apt to enforce clear and unambiguous indemnity provisions. Thank you to Robert Turchick for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Our Remote Summer Associate Experience at WCM During COVID-19 August 10, 2020 < Back Share to: (The following post is a collaboration from our 6 Summer Associates for 2020, who, suffice it to say, received a very different WCM experience than we were all planning. They all did a great job, and hopefully, learned a lot in this unique, remote environment. Best of luck to Gina, Drew, Alex, Jessica, Daniel & Rebecca in their 3L year and beyond). When we accepted our offers to spend our 3L summer at WCM, we pictured 10 weeks of mingling with our coworkers in a bustling office, collaborating  in conference rooms and travelling between the office and  court to see the associates  and partners in action. Of course, COVID-19 had different plans. Instead, we collaborated over Microsoft Teams, observed remote depositions, and best of all, attended a remote happy hour or two. Although many of our peers were scrambling to find alternative opportunities for the summer, WCM honored their word and provided us each with a meaningful experience, despite the hardships caused by COVID-19. WCM made it possible for us to experience their firm culture without ever stepping foot in an office by adapting their summer program to be 100% remote, yet still effective. Over these past 10 weeks, we worked with various Partners and Associates on a wide range of assignments such as drafting memoranda of law, motions, and subpoenas, and various legal research assignments. These assignments introduced us to many different fields of law, like insurance coverage, torts, employment, and even environmental. Additionally, we collaborated on an extensive research project for a client, which provided an interesting gateway into the world of insurance coverage throughout the United States. We saw the product of our work come to life when two Partners presented our research in a client presentation. Even though the impact of COVID-19 completely changed the expectations we had for the summer program, working remotely had a silver lining: we were able to work with Partners and Associates from all of WCM’s offices, an opportunity we likely would not have had if our program were in-person. After spending 10 weeks at a law firm during a global pandemic, it is clear that the practice of law is likely forever changed and will continue to face obstacles. But WCM's ability to run effectively, and provide a fulfilling legal experience, offers hope for what is to come in the legal field. Despite the chaotic circumstances, we thank WCM for its mentorship, and for providing us with knowledge and skills that have better equipped us for a career as lawyers. Sincerely, Alex Goldberg, Drexel University’s Thomas R. Kline School of Law Daniel Axelrod, Maurice A. Deane School of Law at Hofstra University Drew Fryhoff, Brooklyn Law School Gina Rodriguez, New York Law School Jessica Melusky, Drexel University’s Thomas R. Kline School of Law Rebecca Stark, St. John’s University School of Law Previous Next Contact

News A “Threshold” dismissal – Yes, they do happen in NY! October 30, 2013 < Back Share to: In Batista v Porro, a pedestrian plaintiff was struck by a motor vehicle. The trial court denied the defendant’s summary judgment motion made on the basis of plaintiff’s failure to meet the serious injury “threshold,” pursuant to Insurance Law § 5102(d). The First Department reversed, and dismissed plaintiff’s claim due to lack of proof of such an injury. As we have reported in the past (See http://blog.wcmlaw.com/2013/05/uncertainty-world-threshold-motions-ny/) recent interpretation of “threshold” injuries provides plaintiffs with a distinct advantage. If the plaintiff’s doctor addresses and rejects the defendant's expert reports, a denied threshold motion will likely follow. In Batista, the plaintiff complained of a right knee injury for which he had arthroscopic surgery. The defendant’s medical expert examined the plaintiff and documented no deficits in range of motion of the knee. Moreover, he opined that the operative report contained findings consistent with plaintiff's age and preexisting condition. Plaintiff’s medical report did not rebut these findings and was, thus, insufficient to raise a triable issue of fact. Although the plaintiff claimed that he was unable to do everyday activities, he did not have objective medical evidence to substantiate his claims. Thus, under the circumstances, the plaintiff could not vault the threshold. Special thanks to Brian Gibbons for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Water Continues to Ebb “Occurrences” in Construction Defect Cases (PA) August 15, 2019 < Back Share to: Pennsylvania has been one of the few remaining jurisdictions that does not consider faulty workmanship an “occurrence” under a Commercial General Liability (“CGL”) Insurance Policy. However, it appears that the tide is now flowing in the other direction for water damage. Kvaerner established the general proposition that property damage due to an insured's faulty workmanship is not typically covered under a CGL. However, the Pennsylvania Superior Court appears to be chipping away at this determination. In Pennsylvania Manufacturers Indemnity Company v Pottstown Industrial Complex LP, a landlord leased space to a commercial tenant for purposes of storage. The tenant filed suit in the underlying action, alleging that the landlord was required to maintain the roof in serviceable condition and further alleged that the landlord’s failure to do the same resulted in leaks that damaged the stored product. The trial court, in the companion declaratory judgment action, sided with the insurer, proclaiming that claims of inadequate roof repairs or maintenance could not be considered an occurrence pursuant to Kvaerner. The Superior Court reversed, holding that the tenant had plausibly alleged an “occurrence” pursuant to the CGL policy. Additionally, the Court distinguished Kvaerner, arguing that Kvaerner only stood for the proposition that damage to the insureds workmanship or materials could not be an occurrence. Here, the Court argued that the landlord’s faulty workmanship (or lack of repair) led to damages to another’s property. Specifically, the Court held that Kvaerner only stands for the proposition that faulty workmanship can not be considered an “occurrence” if it relates to the insured’s product, work, or property. This is a step in broadening an insurer's obligations. Thanks to Matthew Care for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact