News Plaintiff's Claim Dismissed After Counsel Ignores Court Order (NY) December 5, 2018 < Back Share to: In Soto v Chelsea W26, LLC (2018 NY Slip Op 08170), the Appellate Division sent a message that cursory excuses for disregarding Court Orders or opposing motions will not be tolerated. The plaintiff, Missael Soto, filed a lawsuit alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence. In April 2015, the defendants served an Answer and initial discovery demands. In November 2015, a preliminary conference was held in Queens County Supreme Court, with an Order issued, directing the plaintiff to serve a Bill of Particulars within 30 days. The plaintiff did not comply, and six months later, in May 2016, two separate Court Orders required the plaintiff to serve a Bill of Particulars and responses to the initial discovery demands on the defendants. In June 2016, the defendants moved pursuant to CPLR 3126(3) to strike the complaint based upon the plaintiff's failure to produce a Bill of Particulars and responses to the combined discovery demands. The plaintiff did not file any opposition to this motion. As such, by Order entered November 7, 2016, the Supreme Court granted the defendants' unopposed motion pursuant to CPLR 3126(3) to strike the Complaint. Then, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the Order striking the Complaint, arguing that a law office failure resulted in the per diem attorney hired to cover the motion appearance, failing to appear in Court. But the Supreme Court denied this motion, resulting in the plaintiff appealing this decision to the Appellate Division, Second Department. The Appellate Division affirmed the denial. To vacate an order, the plaintiff must 1) demonstrate both a reasonable excuse for the default and 2) a potentially meritorious opposition to the motion. The Appellate Division took issue with the first prong of this standard, the reasonable excuse. Regardless of whether the firm's per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff's attorney made a conscious decision to send a per diem attorney on the motion's return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition. Plaintiff's attorney’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse. The Appellate Division affirmed the Supreme Court’s denial of plaintiff’s motion to vacate the Order striking the Complaint. Thanks to George Parpas for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Metro Cards - A Dangerous Condition in NY Subways? April 17, 2012 < Back Share to: The First Department recently affirmed the New York County Supreme Court dismissal of plaintiff's complaint, which stemmed from a slip-and-fall at the 125th Street and Lexington Avenue subway station. Plaintiff claimed to have injured herself one morning when she slipped on MetroCards that had been discarded on the ground and sustained personal injuries. As many of us are well aware, after realizing their MetroCards are empty, far too many people fail to use garbage cans and simply discard their cards on the floors of subway stations. At 9am on an average weekday morning, when this accident happened, it would be common to see several dozen discarded MetroCards on the ground adjacent to the turnstiles. Presumably, plaintiff argued that this phenomenon would have been sufficient to place the NYCTA on constructive notice of a dangerous condition, thereby defeating summary judgment against her. The First Department disagreed in Harrison v. NYCTA. Notwithstanding the fact that strewn MetroCards were a "recurrent condition" at this and other stations, the Transit Authority demonstrated that a "reasonable cleaning routine was established and followed." Their employee testified that she cleaned the station every morning, including that morning, and swept up all the MetroCards every few hours. In essence, just because the NYCTA was on notice of the MetroCard condition, the fact they they had protocols in place to address that condition made summary judgment appropriate. Thank you to Brian Gibbons for his contribution. Previous Next Contact

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

News California Dreamin': Professional Athletes Flock to CA To File WC Claims April 6, 2010 < Back Share to: As the old saying goes, "it could only happen in California." California's workers compensation system apparently is the venue of choice for many professional athletes who sustain "work related" injuries during professional athletic activities. The typical injuries are orthopedic in nature and involve painful --and expensive-- joint replacements many years after the athletes have stopped playing their sport. The basis for California jurisdiction is easy to satisfy. The claimant need not have played for a California based team or be resident of the state; playing an isolated game in California will do the trick. The first few claims seeking workers compensation benefits for the permanent effects of concussion and closed head trauma are working their way through California's system. Although it has been decades since many of the claimants have played in a professional game, they seek life time benefits for the costs related to the care and treatment of what they contend is work related head trauma including dementia and brain damage. The battle lines have been drawn about which states can adjudicate these workers compensation claims and whether the claimants can medically establish that their injuries were caused by head trauma sustained decades ago. Right now the NFL is the primary target of these claims but other professional sporting organizations will surely follow close behind. Stay tuned in this high stakes and high profile litigation. If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com http://www.nytimes.com/2010/04/06/sports/football/06worker.html?ref=football Previous Next Contact

News The Customer is Sometimes Wrong (PA) December 6, 2018 < Back Share to: In Thomas v. Family Dollar, the plaintiff was shopping in the Family Dollar store when she slipped on a thick, yellow substance next to a broken glass bottle. She filed a complaint in state court, but it was removed by the defendant to federal court. Plaintiff alleged that the Family Dollar was negligent in breaching its duty to keep its premises clear of substances on the floor. The Family Dollar moved for summary judgment, arguing that the substance was an open and obvious condition and it owed the plaintiff no duty of care. In deciding on the motion for summary judgment, the court noted that it was uncontested that the plaintiff was a business invitee, and that Pennsylvania law limited the duty of care owed to business invitees. Plaintiff acknowledged that there were no visual obstructions surrounding the liquid that would have concealed it from her view, but argued that she was otherwise focused on the products displayed on the shelves. The Court, however, stated that it was Hornbook law in Pennsylvania that a person must look where she is going and further noted that other Pennsylvania courts have rejected plaintiff’s argument. The Court observed that although a lesser degree of attention was required of customers in stores than those walking along sidewalks, the general rule still applies that where one is injured as a result of a failure on her part to observe and avoid an obvious condition, she would not be heard to complain. The Court found that the substance that plaintiff slipped on posed an obvious condition and its danger should have been readily apparent to a person exercising normal perception and judgment. Therefore, the Court found that the Family Dollar had no duty to plaintiff, and granted its summary judgment motion. The Court further noted that the plaintiff failed to prove that the Family Dollar had adequate notice of the condition to breach a duty of care. Thanks to Alexandra Perry for her contribution to this post. Please email Brian Gibbons with any questions. 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

News PA Court Suggests Bright-Line Rule in Coverage of Construction Defect Claims November 22, 2012 < Back Share to: An Allegheny County trial judge recently granted summary judgment in favor of two excess insurers on a matter of first impression relating to the coverage of claims for faulty workmanship. In the case of American Home Assurance Co. v. Trumbull Corp., Trumbull was employed to prepare the foundational pad on which a new J.C. Penney store would be built in southwestern Pennsylvania. Trumbull completed its portion of the project in late 2006, but J.C. Penney and other shopping center tenants began to experience foundational cracks due to settling and sued for faulty workmanship shortly thereafter. Although Trumbull’s primary insurer agreed to defend the case under a reservation of rights, American Home Assurance and National Union Fire Insurance quickly instituted a declaratory judgment action against the contractor to disclaim excess coverage. The insurers argued that damage to the tenants’ buildings did not constitute an “occurrence,” that is, an accident, in light of Pennsylvania’s recent decisions on the coverage implications of faulty workmanship. In considering the insurers’ summary judgment motions, Judge R. Stanton Wettick, Jr. quickly pointed out that Pennsylvania courts have yet to address this specific issue. He explained that coverage of faulty workmanship claims has been considered in three factual scenarios, namely: (1) damage to the work itself; (2) damage to the larger project where the work was performed pursuant to a contract between the insured and property owner; and (3) damage to the larger project where there is no contract between the insured and property owner. Although Pennsylvania courts unanimously agree that an insurer may properly disclaim coverage where the damage is to the work itself, judges have applied two conflicting lines of reasoning in respect of the remaining two situations. On the one hand, some previous cases have required coverage for ancillary damage while others have hold that faulty workmanship can never constitute an “occurrence.” According to Judge Wettick, American Home Assurance presented a fourth factual scenario and thus an opportunity to reconcile the inconsistent treatment of faulty workmanship claims in coverage disputes. He ultimately concluded that the weight of authority supported a growing trend of per se disclaimers and ruled that the excess insurers could decline coverage solely on the nature of the faulty workmanship claim. While the decision is not precedential, Judge Wettick’s well-reasoned opinion in American Home Assurance indicates that Pennsylvania courts are rapidly approaching a bright-line rule with respect to coverage of faulty workmanship and construction defect claims. Just as important, the ruling in American Home Assurance is likely to provide Pennsylvania’s appellate courts with the opportunity to address definitively coverage issues in construction defect and provide a modicum of predictability to these disputes. Thanks to Adam Gomez, law clerk, for this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Multiple Causes of Action Does Not Equal Multiple Claims August 8, 2017 < Back Share to: Though a claimant might allege multiple causes of action, where those causes arise out of the same incident it generally will be considered one claim. In Westport Ins. Corp. v. Peter G. Mylonas, the underlying plaintiff sued Mylonas for professional malpractice. The plaintiff alleged he retained Mylonas to form his corporation and provide related advice, but that Mylonas negligently transferred stock without shareholder consent, causing the plaintiff to lose his entire business. The complaint contained causes of action sounding in negligence, breach of fiduciary duties, and breach of contract. Westport Insurance Company issued a professional liability insurance policy and provided Mylonas’ defense in the underlying action. The policy limited coverage to $500,000 per claim, and to $1,000,000 in the aggregate. Defense costs counted towards the limits. Westport initiated the coverage action to confirm that the underlying suit constituted a single claim. Westport incurred defense costs of $420,000, and the verdict reached against Mylonas was $525,000. The Court of Appeals found that where “claim” is defined as “a demand made upon any insured for loss…including, but not limited to, service of suit” and that “two or more “claims arising out of a single wrongful act …shall be a single claim,” there was no ambiguity but that the single lawsuit constituted a single claim, thus limiting Westport’s coverage obligations to $500,000. The Court was clear that no amount of artful pleading to include multiple causes of action could create additional ‘claims,’ and also warned insureds that there would be no advantage to filing multiple suits in an effort to skirt the articulated rule because where the suits are “related” they still constitute a single claim. This ruling is significant because it provides clarity with respect to an oft-litigated issue, and it provides a practical warning against those that would attempt to shoehorn multiple claims in search of higher coverage limits out of a single wrongful action or loss. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Workers’ Compensation Loses Out and Case Settlement Value Goes Down: State Agencies No Longer Have to Account for or Repay Workers’ Compensation Liens. October 19, 2012 < Back Share to: The Pennsylvania Supreme Court has just issued a landmark ruling that will have far reaching effects on Pennsylvania litigation. In Frazier v. Workers’ Compensation Appeal Board, the Supreme Court ruled that, by virtue of sovereign immunity, a workers’ compensation lien cannot be recovered against a state agency, such as SEPTA, after trial or settlement. As a practical matter, this decision means that if a plaintiff wins a judgment or settles with a governmental agency, he is not obligated to pay back (from those proceeds) any owed workers’ compensation liens because the lien cannot be charged to or recovered from a governmental agency. The net effect of this is that: (a) some workers’ compensation liens will be unrecoverable (if the sole defendants are governmental agencies); (b) trial and settlement values will go down (because the lien does not to be repaid and cannot be boarded); and (c) plaintiffs might refocus their attacks in multiple defendant cases on any entity that is not a governmental agency. Special thanks to Remy Cahn for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Witnessing Yet Another Loss Apparently Not the Only Risk Assumed By Attending Met Game August 11, 2010 < Back Share to: On August 8, 2007, plaintiff James Falzon was in the stands at a Mets game at Shea Stadium when Luis Castillo hit a fly ball. Castillo's bat shattered upon contact with the ball. Shards of the maple bat flew in several directions, and one of the shards struck plaintiff in the face, causing facial fractures and lacerations. In addition to suing Castillo and former Mets teammate Ramon Castro (who apparently gave Castillo the bat), plaintiff is suing Rawlings, who manufactured the maple bat. The bat in question here was maple (as opposed to the more commonly used ash), and Major League Baseball has found that maple bats are three times more likely to shatter than ash bats. As anyone who watches Mets broadcasts regularly can attest, Keith Hernandez has opined about the poor quality of maple bats on several occasions. The fact that this bat was maple as opposed to ash could impact the suit here. Every baseball ticket contains a disclaimer, stating that the "ticketholder assumes all risk, danger and injury incidental to the game of baseball... including but not limited to thrown bats, fragments thereof, and thrown, propelled or batted balls." Courts tend to give credence to such disclaimers, but given given MLB's admission of increased risk involved with maple bats, summary judgment could be elusive here... much like that popup Castillo dropped last June against the Yankees. Thanks to Brian Gibbons for his contribution to this post. http://www.nypost.com/p/news/local/queens/mets_face_sues_team_and_bat_maker_qYAh2JxhXEJ8K3kYDFOF8K Previous Next Contact

News WCM Presents IUA Seminar on Value Issues in Fine Arts and Specialty Losses November 14, 2012 < Back Share to: New York, NY On November 14, 2012, WCM Senior Partner Dennis M. Wade and Partner Michael Bono spoke before the International Underwriters Association (“IUA”) in London, England. Their presentation was entitled Fine Art and Collectible Losses: Framing the Value Issues and focused on the factual and legal difficulties in determining the market value of unique objects. Previous Next Contact

News Philly Wins Again! January 19, 2012 < Back Share to: We think judicial hellhole rankings are titillating (although, as we all know, no matter what the jurisdiction is, there's no way of accounting for what a judge or jury might do). And we have previously written on the 2011 and 2010 rankings. This year we have good news for all you Philadelphia fans: Philadelphia wins again! For the second year in a row, Philadelphia is the worst jurisdiction in the country in which to be a defendant. But sadly, given the passage of tort reform, it seems possible that Philadelphia might fall from its vaunted perch. Perhaps NY, which is # 3, can catch up? Just like the Mets say (in response to the Phillies) -- there's always next year! For more information about this post of WCM's Pennsylvania practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact