News New York Contractor Battles For Coverage (NY) June 26, 2020 < Back Share to: Queens Pioneer Construction Corp. (“Queens Pioneer”) commenced a breach of insurance contract action in the United States District Court for the Eastern District of New York seeking damages and a declaratory judgment associated with insurer Illinois Union’s coverage disclaimer and withdrawal from the defense of a civil suit. The underlying lawsuit was initiated by Juan Algeria Reyes, an employee of Queens Pioneer, who was allegedly injured while working on a construction project. Mr. Reyes brought a personal injury action against ILE Construction Group, the general contractor who was responsible for hiring Reye’s employer, Queens Pioneer, to perform work at the project. In turn, ILE impleaded plaintiff's employer, Queens Pioneer. Queens Pioneer tendered to its liability insurer, Illinois National, who initially assumed the defense of the claims against Queens Pioneer. However, they later sent a follow-up letter stating, “we regret to inform you that no coverage exists.” Queens Pioneer states in their Complaint, that as a result of their reliance on Illinois National initially controlling the defense, Queens Pioneer did not hire personal counsel or pursue early resolution. Illinois National’s decision to revoke the defense coverage stemmed from language in the policy limiting the type of work that can qualify for coverage when an incident occurs. Queens Pioneer asserts in their complaint that the specific type of work they perform falls under the policy's covered classifications - including carpentry, wall installation, door assembly, dry wall, painting, flooring, siding and masonry. Queens Pioneer’s breach of contract action against its insurer illustrates the challenges both construction companies and insurers face when a contractor's trade is not clearly documented in the construction agreements, scope of work, certificates of insurance, or by policy endorsement. Notwithstanding the current pandemic, the construction industry in New York has maintained a relatively stable pace of production, without any signs of slowing down. Accordingly, now, more than ever, it is incumbent on both owners and general contractors to take into account a prospective contractor’s general liability coverage to the same degree as they would consider costs and reputation. Thanks to James Papadakis for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News OSHA Violation not Applicable to Produce Market Forklift Mishap (PA) November 9, 2017 < Back Share to: In Pennsylvania, in determining whether a duty exists in a negligence action, a court may look to a “legislative enactment or an administrative regulation” for the standard of conduct of a reasonable person. To that end, Pennsylvania courts sometimes rely on regulations by the Occupational Safety and Health Administration (“OSHA”), which is part of the US Department of Labor, to determine whether an employer has a duty in a negligence claim—after all, part of its mission is to assure safe working conditions by setting and enforcing standards. The question in Kovacevich v Regional Produce Cooperative Corporation was whether a policy in OSHA’s Field Inspection Reference Manual constituted an “administrative regulation,” thereby triggering a duty of care on defendant Regional Produce Cooperative Corporation (“RPCC”). Defendant RPCC is a management company that operated a wholesale produce market. Plaintiff was a tenant leasing space in the market. In February 2013, one of plaintiff’s co-workers drove a pallet jack full of fruit “forks first” into plaintiff’s back, causing serious injuries. The plaintiff relied on an OSHA regulation that provides that an employer must train and certify operators of powered industrial trucks, such as forklifts. Although RPCC did not employ the forklift operator, plaintiff argued that the market was a multi-employer worksite; per OSHA policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard if they are a “controlling employer.” According to plaintiff’s theory, since RPCC owned the market where industrial trucks operate, it had a duty to ensure operators were trained and certified. At the close of trial, the judge entered a nonsuit in favor of defendant RPCC, finding that a jury could not reasonably hold RPCC liable on its OSHA-based theory of premise liability. On appeal, the Superior Court affirmed the trial court’s ruling. The Superior Court relied on Supreme Court precedent which distinguishes between administrative regulations (which set standards of care) and guidance documents (which describe enforcement policies). The Superior Court deemed the “controlling employer” policy was not a regulation but an OSHA compliance directive and the directive’s intent was to guide OSHA regulators in dealing with multi-employer worksites by giving them the power to cite numerous employers for a violation if they have some level of control or responsibility over the worksite. Historically, courts have only applied the “controlling employer” directive to construction sites, where there are numerous contractors and subcontractors and here the court was not persuaded to extend the application to a produce market. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Basketball Is A Risky Business (Even If You Are Not a Knick) (NY) July 7, 2023 < Back Share to: When a plaintiff voluntarily chooses to play a sport on an outdoor surface such as a basketball court that has faulty conditions, Courts hold that sometimes plaintiff assumes the risk of injury and precludes him from recovering. For example, in Balgley v. City of New York, 2023 NY Slip Op 03672 (2d Dep’t July 5, 2023), a plaintiff suffered personal injuries when he tripped and fell due to a hole on an outdoor basketball court located within a park in Queens, New York. Plaintiff subsequently commenced a lawsuit against the defendant seeking to recover damages for personal injuries. After discovery, the defendants moved for summary judgment based on the doctrine of assumption of risk. Accordingly, under the doctrine of assumption of risk when a plaintiff engages in a sport or recreational activity, they consent to “commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” (Asprou v Hellenic Orthodox Community of Astoria, 185 AD3d 641, 642, quoting Morgan v State of New York, 90 NY2d 471, 484; see Custodi v Town of Amherst, 20 NY3d 83, 88). Therefore, the lower court held, and the second department recently affirmed, that the defendant’s established that the plaintiff assumed the risk of injury from stepping into a hole by voluntarily choosing to play basketball on an outdoor court that had faulty conditions that were also open and obvious. As such, the defendant’s motion for summary judgment dismissing the complaint was granted. It is important to note that not all jurisdictions have an assumption of the risk defense; for example, PA has largely abrogated an assumption of the risk defense. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News When Does Delay = Prejudice? An Excess Carrier Tries to Find Out in Camden, NJ. November 19, 2008 < Back Share to: In NJ, a carrier needs to show appreciable prejudice to disclaim coverage on late notice grounds. The standard is tough to meet and therefore few carriers press the issue. State National Insurance Company is about to prove the exception. State National insures the County of Camden. The County was sued by a Mr. Anderson. Mr. Anderson, an 18 year old male, was driving in Camden County when his car went onto the roadway shoulder where there was a significant drop-off between the asphalt and the adjacent dirt and gravel. In the resulting collision, Anderson suffered significant injuries – so significant that a jury awarded him $15 million in past and future pain and suffering, disability and loss of enjoyment of life and $1.29 million in past medical costs. The problem (from State’s perspective) was that Camden didn’t let State know about the lawsuit until a year and a half into the litigation – after discovery had ended. The delay was a problem from State’s perspective because Camden had failed to retain any relevant expert witnesses – a failure that State alleges led directly to the verdict. What happens next? Stay tuned to find out. Previous Next Contact

News Managing Expectations - Second Department Upholds Dismissal of Plaintiff’s Claims After Fall During Subway Extension Project (NY) August 22, 2017 < Back Share to: In Lamar v Hill Intl. Inc, the Second Department ironed out the standard for imposing liability under the Labor Law upon construction managers. Plaintiff Willie Lamar was an employee of a joint venture, hired by the MTA to work on the extension of the Number 7 subway train to the west side of Manhattan. During the project, he was injured when he fell approximately ten feet from atop a stack of blasting mats. He commenced an action against multiple parties, including the project construction manager, Hill International, alleging violations of Labor Law §§ 240(1) and 241(6). Plaintiff moved for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241(6) causes of action, and the defendants cross-moved for summary judgment dismissing the complaint on the ground that they lacked authority to supervise or control the plaintiff’s work, and therefore were not liable under the Labor Law. The trial court denied the plaintiff’s motion and granted the defendants’ motion to dismiss the complaint. Plaintiff appealed. On appeal, the Second Department upheld the trial court’s decision, and explained that for a construction manager to face liability for alleged violations of Labor Law §§ 240(1) and 241(6), the plaintiff must demonstrate that the construction manager “had the authority to exercise supervision and control over the work that brought about the injury so as to enable the defendant to avoid or correct an unsafe condition.” As a construction manager is neither a property owner nor a general contractor, it will generally not face liability under the Labor Law unless it acts as an agent to either of those entities. To be considered owner of general contractor’s agent under the Labor Law, a party must have “supervisory control and authority” over the plaintiff’s work. Hill’s contract with the MTA provided that Hill was responsible for coordinating the work, in terms of cost, time, safety, and quality control -- but the contract did NOT provide Hill with authority to supervise or control the work of the contractors, including the plaintiff's employer. If an unsafe condition was found, Hill was empowered to make recommendations, provide instructions to contractors regarding correcting unsafe conditions, and stop work only in the event of an emergency. Moreover, the parties’ own deposition testimony showed that Hill did not supervise or control the plaintiff's day-to-day work. Accordingly, Hill made a prima facie showing that it did not supervise of control the work, and the dismissal was affirmed. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Intentional Act Ruled An "Accident" By New York Appellate Court September 22, 2008 < Back Share to: In 2002, Neil Spicehandler was run down by a crazed motorist who jumped the sidewalk in an attempt to "kill as many people as possible." After his death, Spicehandler's estate submitted a claim seeking benefits under the uninsured motorist (UM) and personal injury protection (PIP) endorsements in his auto policy. The adverse driver eventually pleaded guilty to murder in the second degree, admitting that he intentionally caused Spicehandler's death by striking him with his car. State Farm denied the claim on both counts, arguing that Spicehandler's death was not "caused by an accident" given the driver's conceded intentional act. The Appellate Division, Second Department ruled that the UM endorsement excluded coverage for the incident because the UM coverage was limited to circumstances where the insured was injured in an automobile accident at the hands of an financially irresponsible motorist. Since the adverse driver intended to kill Spicehandler, there was no "accident" and hence no UM coverage. Finding a distinction between the policy's UM and PIP endorsements, the First Department did not find such a limitation with regard to the death benefits claim. In contrast to its UM analysis, the court looked at whether the event was "accidental" from the standpoint of the insured in the PIP context. Since Spicehandler's death was unforseen from his standpoint, the event was "accidental" and State Farm's duty to provide death benfits triggered. The opinion was decided 3-2, which gives State Farm the right of appeal to New York's highest court. Stay tuned. State Farm Mut. Auto. Ins. Co. v Langan 2008 NY Slip Op 06980 Decided on September 16, 2008 Appellate Division, Second Department http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06980.htm Previous Next Contact

News Why Appealing Pro Se Can Be An Appeal Killer (NY) May 12, 2023 < Back Share to: In Wells Fargo Bank, N.A. v. Kim Davis, et al., Index No. 500310/14, 2019-12927, pro se appellant Kim Davis made one critical mistake in her appeal on this matter, and that was not retaining an attorney. After Davis defaulted on her mortgage in 2010, Wells Fargo Bank began foreclosure proceedings on Davis’s property in 2014. When Davis never answered, Wells Fargo moved for default in 2015 which Davis failed to oppose (referred to in the decision as Motion No. 1). After her default, Davis made several motions in succession: a motion to dismiss for improper service and lack of standing (No. 2), followed by a motion to renew and reargue (No. 3) when that motion was denied, a motion to vacate the default (No. 4), a motion to direct the holding of a hearing by referee (No. 5), and another motion to dismiss the complaint (No. 6). This would be followed by a motion by Wells Fargo to confirm the referee’s report and for a judgment of foreclosure and sale (No. 7). Lacking an attorney, things did not go well for Davis. The Appellate Division affirmed the decision denying Motion 1 outright as she failed to oppose it, waiving her right to appeal it. As to Motion 2, they affirmed the denial of her motion to dismiss for lack of standing given her failure to vacate her default which automatically waived the defense of lack of standing. The denials of both Motions 3 AND 6 were affirmed because Davis forgot to include the motion papers for both in the appeal appendix, meaning they could not be adequately reviewed. Motion 4 was affirmed as properly denied because Davis failed to demonstrate a reasonable excuse for her default or her failure to oppose Motion 1. As to Motion 5, the denial was affirmed as the Appellate Division found Davis’s contentions that the referee’s reports were based on unproduced business records were unfounded and even if a hearing was not held, she still had the chance to submit records to the referee. Lastly, while no mention was made regarding Motion 7, Wells Fargo’s motion to confirm the report, it can likely be assumed the decision granting it was affirmed. The vast majority of Davis’s issues in this matter appear to be oversights that likely could have been avoided if she had retained an attorney who knows how to deal with these matters. The moral of the story: when facing legal troubles, talk to an attorney – that’s why we’re here. Thank you to Patrick Argento for his contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Piercing the Veil of Religious Organizations (NY) August 13, 2021 < Back Share to: Tax-exempt religious organizations are known for keeping the details of their financial situation under tight wrap. This can make certain situations difficult, particularly during litigation when those details might be relevant to the subject issue. But what about in the context of a religious organization as an insured? How much information is enough, and how deep can an insurance company dig? The question here is whether certain details of a religious organization’s financial details can be revealed to an insurance company and to what extent. Thankfully, the First Department addressed this very issue in Church of St. Matthew v. Aetna Cas And Sur Co. Plaintiff in that case was an Anglican Catholic Church insured by defendants, Aetna Casualty & Surety Co. The church had sustained major losses when a fire of unknown origin destroyed the church building and everything inside. The Church was insured under a comprehensive policy and was covered for loss and damage caused by the fire, and so a claim was naturally filed. However, in addition to other documents, the defendant insurance company sought very detailed financial information of their insured, including: (1) authorizations for all bank records maintained; (2) a list of monthly expenses for the church; (3) a reporting of the income of the church, including the names of donors and the amounts donated; (4) copies of tax returns for the church, as well as for its board of officers and directors; (5) a list of the salaries of the board of directors and officers; and (6) an authorization to the Internal Revenue Service to obtain documents that were seized by that agency in an unrelated matter. The plaintiff church objected to this overbroad request, arguing that they had already provided all relevant documents, including bank statements from four different banks, and that the additional documents requested by the defendant insurance company either did not relate to the subject matter of the insurance or was otherwise protected by the church’s code of confidentiality. Meanwhile, the defendant insurance company maintained that they were entitled pursuant to a provision in the policy which stated that the insurer “may examine and audit the named insured’s books and records at any time during the policy period and extensions thereof and within three years after the final termination of this policy, as far as they relate to the subject matter of this insurance.” The First Department ultimately held that the defendant insurance company was entitled to the requested documents insofar as they are material and relevant to the issue of the plaintiff church’s financial status at the time of the fire. Not only that, the plaintiff church was also obligated to permit the insurance company to examine and audit its books and records, pursuant to the contractual provision within the policy. However, the Court did hold that there was no sufficient basis for the defendant insurance company to access the personal financial information of the plaintiff church’s board of directors and officers, or the names of any church donors. A lesson to read the provisions of any insurance policy carefully, as they will likely control. Thanks to Tristan Montaque for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Tossing Up Bricks: Former NY Knicks Star Loses Assault Claims (NY) November 24, 2021 < Back Share to: On remand, in Charles Oakley v. MSG Networks, et al., the United States District Court of the Southern District of New York granted defendants NY Knicks owner James Dolan and Madison Square Garden Co.’s motion to dismiss Charles Oakley’s claims of assault and battery. On February 8, 2017, Oakley was escorted out of his seat by MSG security guards and arrested while attending a Knicks game due to his inappropriate behavior. The incident had been filmed by ESPN, security cameras, and bystanders, with one particular moment revealing Oakley demonstrably putting his finger in one guard’s face and pushing his face. After the incident, the Knicks organization and Dolan made public statements claiming that Oakley was expelled for being drunk and verbally abusive to fans and MSG staff. In granting dismissal, the Court reasoned that Oakley failed to show the MSG security guards used “objectively unreasonable” force to remove him. On the contrary, the admissible video footage showed that (1) the guards asked Oakley to leave, (2) they gave him a chance to leave, and (3) when he refused to leave, and escalated the confrontation, the guards removed him with the reasonable and appropriate force necessary. No rational jury would believe otherwise. As such, conduct that contributes to an escalation – like a finger to the face – may be sufficient to warrant dismissal of assault and battery claims. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Second Circuit Rules Discrimination Based on Sexual Orientation Violates Federal Law (NY) March 2, 2018 < Back Share to: On Monday, February 27, 2018, in Zarda v. Altitude Express, the Second Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is against federal law as unlawful discrimination, subsumed under discrimination on the basis of sex, as defined by the Civil Rights Act of 1964. The Second Circuit, which covers New York, Connecticut, and Vermont, joins the Sixth Circuit in holding that gay employees may not be discriminated against on the basis of sexual orientation. This case arises out of a claim of unlawful termination – Zarda claimed he was fired because he was gay. This en banc decision overruled a previous Second Circuit decision which held that, while sexual orientation discrimination should be outlawed as a policy matter, the plain reading of the statute did not encompass sexual orientation. Here, however, the Court determined (in part) that the associational claim. (i.e. that Zarda was fired because his boyfriend was gay) was enough to determine that Zarda was fired because of his sex. In other words, if Zarda’s significant other were of the opposite gender, he would not have been fired. This 10-3 decision is noteworthy, in part, as two different government agencies appeared on opposite sides of the case. The Equal Employment Opportunity Commission (EEOC) supported Zarda and argued that the Civil Rights Act of 1964 outlawed discrimination on the basis of sexual orientation whereas the Department of Justice, in a reversal of the Obama Administration’s position, argued that sexual orientation discrimination was not covered under the aegis of the Civil Rights Act of 1964. This is the third circuit court to rule on this question in the last 12 months – and the results have causes a circuit split, which raises the specter of a possible Supreme Court showdown. Thanks to Matt Care for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News NJ: Counsel's Inflammatory Comments Do Not Warrant A New Trial June 20, 2012 < Back Share to: Barbara Jones filed suit against Albert Pannici for injuries sustained in a motor vehicle accident. In turn, Pannici filed a third-party complaint against a phantom driver he claims caused the accident. Jones’ insurer, Allstate, intervened due to their potential liability under the Uninsured Motorist provision of Jones’ automobile insurance policy. At trial, Allstate’s attorney made several statements to suggest that Pannici was not telling the truth as to the cause of the accident. Specifically, in his opening and closing statements, counsel alleged that Pannici became nervous after the accident and lied about the phantom vehicle. Additionally, during his cross-examination, counsel attempted to elicit testimony to suggest that Pannici’s status as a former police officer made it easy for him to concoct a story about the phantom vehicle. Pannici’s attorney did not object to any of the comments made. Ultimately, the jury returned a substantial verdict against Pannici. Pannici moved for a new trial, arguing that Allstate's counsel's comments in the opening, during the cross-examination and in summation led the jury to believe that something improper had occurred and that Pannici was not being truthful. The court disagreed with Pannici’s position and found that the comments made by counsel for Allstate did not amount to error so prejudicial as to require a new trial. Rather, the court found that there was sufficient evidence for the jury to reject Pannici’s version of the accident. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4834-10.pdf Previous Next Contact

News Volunteer or Employee: Who Is Protected by New York Labor Law? (NY) December 30, 2021 < Back Share to: To fall under the class of those protected by the New York Labor Law, a plaintiff must establish that he or she was permitted or “suffered” to work on a building or structure and that they were hired by the owner, contractor, or their agent. Volunteers are generally not entitled to Labor Law protection but what is the difference between an employee and volunteer under the statute? In Garcia v. 13 W. 38, LLC, 73 Misc. 3d 434 (N.Y. Sup. Ct. 2021), a New York trial court recently evaluated this question. Plaintiff in that case was hired by an elevator mechanic employed by Uplift Elevator Corp., to assist him in wiring an elevator. Plaintiff was injured when the mechanic accidentally activated the elevator while plaintiff was standing on top of the elevator cab. Discovery revealed that although plaintiff was compensated for his work and given an Uplift Elevator t-shirt to wear, this was done solely by the mechanic. The mechanic had no authority to hire plaintiff and was acting without his employer’s knowledge or authority in doing so. Defendants moved to dismiss the Complaint on the grounds that the Labor Law did not apply to plaintiff under the circumstances. Based on these facts, the court held that plaintiff had no reasonable basis to believe he was employed by Uplift Elevator and that no employment relationship existed with any owner, contractor, or agent on the job. The court noted that “the fact that plaintiff gained admittance to the worksite does not indicate he was ‘suffered’ to work.” The court found that since no contractual relationship existed between Uplift Elevator and plaintiff, he was considered a volunteer and trespasser with no authority to work on the premises. Accordingly, the court found that he was not entitled to Labor Law protection and dismissed the Complaint. The takeaway from Garcia is that New York Labor Law will not apply in cases involving workplace injuries to volunteers or those not contractually authorized to perform the work. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact