News Trivial Defect Not A Viable Summary Judgment Argument in NY January 2, 2013 < Back Share to: In Scelzo v. Acklinis Realty Holding, LLC, et al., Scelzo was injured when she tripped on a tree well outside of a Best Buy store. She eventually sued the landlord, its tenant and the general contractor who constructed the store. All three entities moved for and were granted summary judgment. On appeal, the First Department partially modified the trial court’s decision and reversed summary judgment in favor of the landlord, Acklinis Realty. Acklinis Realty had attempted to prevail by arguing that the subject defect was trivial. Under New York law, whether a defect is trivial is generally a matter for the jury in a personal injury action. Here, the lease between Acklinis Realty and Best Buy placed the duty to maintain the sidewalk areas solely on the landlord, so summary judgment was appropriate for Best Buy. Also, the general contractor was entitled to summary judgment, as there was no evidence that it had ever returned to the job site after it constructed the store 3 years before the plaintiff’s accident. However, the Acklinis Realty was not so lucky. The court held that the plaintiff’s photograph of the tree well, coupled with her testimony, sufficiently established a question of fact as to whether the defect was trivial. While a trivial defect is a viable defense at trial, it generally is not a successful defense for summary judgment purposes. Thanks to Michael Nunley for his contribution to this post. Previous Next Contact

News Routine Inspection Evidence Fails To Trump Notice Issue (NY) July 6, 2016 < Back Share to: Property owners have a duty to keep their premises safe and secure, and to protect visitors from slipping hazards. One of the key defenses available to property owners in premises liability actions is that they lacked notice of the slippery condition because it occurred and injured the plaintiff before the defendant had a reasonable opportunity to discover and correct it. In Sada v August Wilson Theater , the plaintiff was injured after he slipped and fell on a wet staircase. There had been one inch of snow that day. The plaintiff testified that he observed a soaked mat near the theater door when he first arrived. He specifically told an usher during intermission that the mat was wet and that the usher should do something about it. Plaintiff fell on a wet area near the mat roughly 15 minutes later. Defendant moved for summary judgment on the grounds that it lacked notice of the allegedly hazardous condition, and the trial court denied the motion. The First Department unanimously upheld the trial court’s ruling, holding that defendant had failed to establish that it lacked constructive notice of the slippery condition in its lobby. While defendant submitted testimony from both the porter on duty the night of plaintiff’s fall and a theater manager, both of whom testified at length regarding the theater’s policies and procedures for keeping the theater clean and free of pooled water, neither witness testified as to what the theater had done to inspect and clean pooled water on the night of plaintiff’s injury. The First Department concluded that without specific evidence of what the theater had done on the night of plaintiff’s injury, defendant could not establish a lack of notice of slipping hazards – particularly given the plaintiff’s testimony regarding the notice he had given the usher. Thus, the court concluded the plaintiff had presented a question for the factfinder about whether his warning to the usher 15 minutes before his fall was sufficient to give defendant notice of the slippery condition and time to remedy it. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Late Notice Defense Upheld When Corporate President Knew of Accident November 4, 2009 < Back Share to: In QBE Insurance Corporation v. D. Gangi Contracting Corp., plaintiff filed a declaratory judgment action in which it asserted that it was not obligated to defend and indemnify the defendant general contractor in an action for personal injuries filed by a worker injured on a construction site. QBE disclaimed coverage on the ground of late notice of the underlying accident, claiming that Gangi did not notify it of the accident for three years. The terms of QBE’s policy required Gangi to provide notice of an occurrence as soon as reasonably practicable. The policy also provided, “Knowledge…by Your agent, servant or employee shall not in itself constitute knowledge of you unless the Corporate Risk Manager of Your corporation shall have received notice of such Occurrence.” Gangi claimed that it was entitled to coverage, as its Corporate Risk Manager did not have knowledge of the incident during the three year period in which it failed to notify QBE of the accident. QBE moved for summary judgment. The trial court granted the motion. Gangi then appealed. In reaching its decision, the Appellate Division, First Department, noted that Gangi’s president admitted that he had knowledge of the accident as soon as it occurred. The court ultimately held that because Gangi’s president was an executive officer and not merely an “agent, servant or employee,” his knowledge was imputed to Gangi and triggered its duty to notify QBE of the accident. The First Department then affirmed the trial court’s decision and granted summary judgment to QBE. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07745.htm Previous Next Contact

News Court of Appeals Expands Scope of Labor Law § 240(1) April 28, 2008 < Back Share to: In Sanatass v. Consolidated Investing Company, the Court of Appeals recently held that the defendant, an out-of-possession landlord, was still statutorily liable for the plaintiff's injuries despite its lack of notice or control over the work that the plaintiff was engaged in at the time of the accident. The Court rejected the defendant's argument that the tenant's breach of the lease provision that obligated the tenant to obtain the owner's permission before hiring a contractor to perform any alterations severed any nexus between the owner and the plaintiff. Of note, the sole dissenter stated that the Court's "decision unwisely and unnecessarily increases the already heavy burden that Labor Law § 240(1) places on New York property owners." The dissenting Justice further noted that the Court has never addressed the situation of a landlord that did not try to delegate responsibility for worker safety to its tenant, but retained in the lease the power to provide protection for workers by requiring prior written consent before any work is done, only to have the tenant ignore the lease provision and urged the majority not to "expand our already draconian rules of Labor Law § 240 (1) liability." Previous Next Contact

News Decedent's Statements to His Wife Admissible as Hearsay Exception, Defeating Estate's MSJ (NY) December 5, 2018 < Back Share to: In Caminiti v Extell West 57th Street LLC, 2018 WL 5914129, 2018 N.Y. Slip Op. 07667 (1st Dep’t 2018), the decedent in a wrongful death Labor Law suit made a statement to his wife in the ER after an accident that he "should have known better" than to use a ladder as he did. He later died. Plaintiff, the administratix of the deceased’s estate, sued under Labor Law §240(1) and Labor Law §241(6) against defendants, the owner, developer, and general contractor of the project. Plaintiff made a motion for partial summary judgment on Labor Law §240(1) and the defendants made a motion for summary judgment to dismiss the complaint. Judge Arlene Bluth in New York Supreme, granted plaintiff’s motion and denied the defendants. Upon appeal, the First Department modified the order to also deny the plaintiff’s motion and granting defendants’ motions as to the Labor Law §241(6) claims based on several Industrial Code sections. The First Department ruled that the lower court properly ruled that the now-deceased husband’s statement regarding his accident was admissible as a declaration against interest in order to establish his wife, as an adminstratix of the deceased husband’s estate’s, prima facie case under Labor Law §240(1). The statements showed, as a matter of law ,that the ladder started to move while he was working on it, and when he tried to stabilize the ladder, it tipped and struck him in the chest. The First Department ruled that plaintiff was not required to present further evidence that the ladder was defective. However, the defendants raised triable issues of facts as accident reports showed that while he was on the ladder, he felt chest pains and his legs became “unsteady” or “wobbly." Furthermore, his co-workers saw the ladder in an upright position about 10 feet away from the decedent when he expressed that he was suffering chest pains. As such, plaintiff’s partial motion for summary judgment on Labor Law §240(1) was dismissed. Furthermore, the First Department ruled that since plaintiff failed to specifcy any particular subsection or subdivisions of the provisions Industrial Code sections, the Labor Law §241(6) claim as to those provisions were considered abandoned. As such, Defendant’s motions for summary judgment to dismiss the complaint was granted as to those provisions. The fact that hearsay evidence from the deceased was admitted through the administratix’s testimony shows the value in a plaintiff administrator’s testimony, not just to damages, but potentially to liability. Proactive defense counsel should be wary of such testimony while taking depositions and be ready to cross-examine the administrating witness attempting to bring in any hearsay evidence from the deceased. Thanks to Jonathan Pincus for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Barring Expert Testimony Based On Net Opinion Upheld by NJ App Div. November 24, 2010 < Back Share to: In Sims v. Deltec Power Systems, the Appellate Court upheld an Order barring a plaintiff's liability expert from testifying at the time of trial. Plaintiff, Calvert Smith, alleged personal injuries due to exposure to sulfuric acid fumes. According to the plaintiff, a group of batteries attached to an uninerruptible power supply unit malfunctioned, and caused the release of fumes. Plaintiff brought suit against the manufacturer of the batteries. Plaintiff's expert, Mark Keith, testified that a manufacturing defect caused the leak, an opinion which was premised upon the fact that the battery casing was cracked. However, there was no evidence in the record to suggest that any of the batteries were cracked. Furthermore, plainitff's expert acknowledged that one of two things could have caused the release of the fumes- negligence or a product defect. Ultimately, the appellate court upheld the trial court's opinion that plaintiff's expert's testimony constituted an inadmissable net opinion which was properly excluded. Thank you to Heather Aquino for this post. http://www.judiciary.state.nj.us/opinions/a1058-09.pdf Previous Next Contact

News First Department Rules that Circumstances Do Matter in Evaluating AI Tenders in Public Sidewalk Cases February 8, 2025 < Back Share to: In a significant win for Wade Clark Mulcahy’s client and for insurers generally, the Appellate Division, First Department, unanimously affirmed that in additional insured tenders circumstances do matter. The additional insured jurisprudence that governs New York City with respect to sidewalk trip-and-falls has been murky, requiring coverage counsel to parse the circumstances surrounding a tender of coverage to the AI insurer. On February 6, 2025 in Wesco Insurance Company v. Jewelers Mutual Insurance Company , Case No. 2024-04153, (Feb. 6, 2025) plaintiff-appellant Wesco insured a corner property owner which maintained on the sidewalk abutting its property a raised cellar door bulkhead. Wade Clark Mulcahy’s client Jewelers Mutual insured the jewelry store holding the ground-level tenancy above the basement and around the corner from that bulkhead structure, facing the main street. In 2018, a pedestrian tripped and fell over the bulkhead, and filed the underlying litigation against both the landlord and tenant, leading to this AI coverage dispute. The additional insured provision covered the landlord “only with respect to liability arising out of the ownership, maintenance, or use of that part of the premises leased to [the tenant].” After highlighting the many critical facts supporting our client’s position – and conceded on the record – the First Department held that the AI provision was not triggered because the pedestrian’s injury did not arise out of the landlord’s “ownership of ‘that part of the premises leased to [tenant].’” The Court took note of these critical circumstances: · the basement was not a part of the leasehold; · the tenant had no duty to maintain the basement or the cellar doors leading to the basement; · the tenant had no internal access to the basement; · a different tenant had exclusive use and control over the basement; · the lease only required the tenant to keep the sidewalk “in front of” the store free from obstruction, while the cement bulkhead structure and cellar doors were around the corner from the sole entrance to the store. This ruling provides much needed clarity in evaluating AI tenders in sidewalk cases. What seemed to be black letter law before Wesco —that any defect, structural or otherwise, on a sidewalk abutting a tenancy falls under the tenant’s AI coverage—in fact, turns on the circumstances and the scope of the lease. While helpful to insurers, it also serves as a reminder of the risks inherent in issuing blanket AI endorsements without any information concerning the physical condition of the tenancy and its abutting surface area. Any questions, please contact Dennis Wade or Abed Bhuyan. Previous Next Dennis M. Wade Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Contact

News Don't Insult the System: Second Department Orders New Trial June 29, 2008 < Back Share to: Defense counsel argued that because the plaintiff's husband was collecting disability payments from the NYPD, plaintiff was now trying to "snow" the jury and "max out" the civil justice system. The Second Department held such "inflammatory comments" by counsel required a new trial on damages. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D19135.pdf Previous Next Contact

News NJ Appellate Court Holds Transmission of STD Not a Covered Claim February 7, 2011 < Back Share to: < ![CDATA[NJ Appellate Court Holds Transmission of STD Not a Covered Claim]]> Previous Next Contact

News The Olin Litigation Saga Comes to a Close (NY) November 29, 2018 < Back Share to: Judge Rakoff of the SDNY recently authored the (likely) final chapter of what the Court itself described as “this interminable litigation,” agreeing with Certain Underwriters at Lloyd’s position that the terms of an executed Settlement Agreement with Plaintiff Olin imposed a pro rata allocation upon all implicated London policies, as opposed to joint and several liability. In Olin Corporation v Certain Underwriters at Lloyds London, Olin, a manufacturing company, operated at site in Morgan Hill, California for forty years, from 1956 to 1996. The “interminable litigation” involved insurance coverage for the remediation of property damage caused by Olin’s operations. Underwriters’ had issued excess insurance policies to Olin most of which included the following Condition C: It is agreed that if any loss covered hereunder is also covered in whole or in part under any other excess Policy issued to the Assured prior to the inception date hereof the limit of liability heron…shall be reduced by any amounts due to the Assured on account of such loss under such prior insurance. Olin had argued that this provision meant that each policy should be liable up to its limits for all of the property damage as long as some portion of that damage took place during the policy’s effective period. The Second Circuit agreed with Underwriters, though, and held that an “allocation” approach applied, where each policy provided coverage for only that property damage that could be directly attributed to its policy period. The parties next litigated how to determine when exactly the property damage occurred. Again, the Courts sided with Underwriters, finding the damage occurs as long as contamination continues to spread, including by passive “migration of contamination into the soil and groundwater.” With the method of allocation, and a means to determine the time period of property damage, judicially decided, Olin and Underwriters executed a Settlement Agreement, at issue in the instant litigation. Specifically at issue, Paragraph D, which provided: With respect to any future third-party Pollution Claim relating to property damage that is not the subject of a release in this Agreement, the following allocation methods shall be used, (i)….shall be allocated pro rata equally over the entire period of time that nay operations took place on any parts of the real property Olin owned, and (ii)…shall be allocated pro rata equally over the entire period of time that any waste was disposed of or arranged to be disposed of… Over year following execution of the Settlement Agreement, Olin sought a judicial determination that the Settlement Agreement permitted it to hold insurers jointly and severally liable for property damage that took place after the end of the policy period, if that policy contained Condition C, above. The SDNY concisely ruled against Olin, agreeing with Underwriters that the express terms of the Settlement Agreement unambiguously evince the parties’ agreement that property damage is to be allocated using a pro rata allocation, and that it unambiguously was meant to override the terms of Condition C in all the applicable policies. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Judicial Panel Considers Motions to Consolidate All COVID-19 Business Interruption Claims May 1, 2020 < Back Share to: COVID-19’s impact has reverberated through almost every aspect of American life. The impact has been political, social, and economic. For businesses deemed “non-essential,” such as restaurants, hair salons, and gyms, the impact has been felt even greater. Governmental authorities on the national, state, and local levels have implemented various “stay at home” orders. These orders have, in turn, caused many businesses to lose significant income. As such, several businesses have filed actions seeking recovery of losses they sustained as a result of the orders. The businesses allege that they are entitled to recovery of their losses through their business interruption insurance policies. As few states have lifted their respective “stay at home” orders, it is likely more claims for business losses will come soon. Anticipating the influx of related litigation, counsel representing multiple policyholders in COVID-19 related lawsuits have filed motions with the Judicial Panel on Multidistrict Litigation for transfer and consolidation of the cases. The first motion, MDL No. 2942, filed April 20, 2020, seeks transfer and coordination or consolidation of two class-action suits filed in the U.S. District Court for the Eastern District of Pennsylvania with nine “Related Actions” filed in federal courts throughout the country. All actions referenced in the motion seek a finding that the “stay at home” orders trigger coverage under the plaintiffs’ business interruption insurance policies. The second motion, also MDL No. 2942, filed April 21, 2020 by counsel for the “Related Actions” referenced above, seeks to transfer pending and similar business interruption coverage litigation to the Northern District of Illinois before the Honorable Matthew F. Kennelly. This motion asserts that all of the pending actions involve the questions of whether COVID-19 causes “physical damage or loss to property” and whether COVID-19 was present on the insured property, or on property sufficiently connected to the insured property, to trigger coverage. In support, the motion asserts that claimants will present expert evidence on epidemiological modeling of COVID-19’s spread to determine its presence and impact. Both motions argue that consolidation is appropriate since the panel has consolidated other widespread cases litigated around the country. Specifically, the motions reference the panel’s consolidation of the 2,700 lawsuits related to the opioid crisis, which spanned several states and were brought against more than a dozen pharmaceutical companies. The motions maintain that consolidation is necessary because, regardless of the different insurers, policies are relatively standard. Although the panel has yet to decide a factually similar case, it has not hesitated to consolidate cases involving multiple districts and diverse defendants in the past. If the panel consolidates the business interruption claims, the future of business interruption claims—as a whole—will have much at stake in the court that hears the consolidated actions. The insurance defendants are due to respond to the MDL panel in May. Thanks to John Lang for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News Pennsylvania Supreme Court Refuses to Implement Bright Line Rule on Defective Jury Awards November 25, 2020 < Back Share to: Last week, the Pennsylvania Supreme Court in Mader v. Duquesne Light Company, refused to implement a bright line rule with respect to mandating a trial court’s options when a jury returns an inconsistent, favorable plaintiff verdict with an inconsistent damages award. Instead, the Court indicated that trial courts largely have broad discretion in terms of requiring new trials for damages. As relevant here, plaintiff Mader was severely injured and electrocuted while performing masonry work at a customer’s house. Specifically, Mader was unaware of low-hanging power lines while carrying a metal ladder, and the ladder contacted the power lines. Mader eventually was required to undergo amputations of both feet and had multiple rounds or surgery on other parts of his body. Mader was unable to continue working after his injury and was forced to close his contracting business. A jury returned a favorable verdict of $500,000 in compensatory damages (including past and future medical costs) while awarding zero for past or future lost earnings and zero in noneconomic damages. The trial court ordered a new trial on past and future medical expenses primarily because it found the jury’s determination on compensatory damages for pain and suffering and lost earnings to be defective. The Supreme Court largely granted the permissive appeal to resolve the thorny issue as to whether a new trial should be awarded for all damages or just the certain damages tainted by jury error. The Pennsylvania Supreme Court installed a balancing test, holding: "We hold that, when faced with the question of the full or partial granting of a new trial on damages, a trial court should discern whether the properly awarded damages in the first trial were 'fairly determined,' and, if so, whether they are sufficiently independent from, and are not 'intertwined' with, the erroneously determined damages." The Court explained that this will allow flexibility for the trial courts and would be the most “fair”, as it would both allow claimants to keep properly established damages but would also be fair to the defense bar as it will not be “required to give its opponent a second chance to recover damages that were properly established and found by the jury in the first trial, and which are otherwise independent from the erroneous damages.” Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact