Wade Clark Mulcahy LLP

News Appellate Division Infers Judge's Intent Regarding Personal Jurisdiction August 19, 2011 < Back Share to: In McConnell v. Santana, a wrongful death action, the defendant failed to answer the complaint and the plaintiff was granted a default judgment. When the defendant moved to vacate he also argued that the court lacked personal jurisdiction because he was never properly served. After a Traverse hearing, the court granted his motion stating in sum, the motion "to vacate a default is granted." The court never stated whether or not the complaint was properly served. After trial, judgment was entered in favor of the plaintiff. The defendant then moved to vacate the judgment on the grounds that the court lacked jurisdiction because he was never properly served. The Appellate Division denied the motion. The court did not address the merits of the moving papers, rather the court reasoned that if the trial court had found that the defendant had not been properly served at the Traverse hearing, it would have had no authority to take any action other than to dismiss the complaint. Since the court did not dismiss the complaint, in effect, the Supreme Court found that service was properly effected. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_06251.htm Previous Next Contact

News School Is Not Its Student's Keeper (NY) September 5, 2013 < Back Share to: When a high school student was attacked by another student on an athletic field owned by a school district, a claim followed under the theory that the district failed to provide adequate security and negligently left gates open to the field. The assault allegedly occurred, at approximately 9:30 p.m., after a group of youths,who had been drinking alcohol, congregated on the field without permission. Although the Supreme Court, Suffolk County denied the school's summary judgment motion, the Appellate Division held that the West Islip Union Free School District made a prima facie showing of its entitlement to judgment as a matter of law. In Weisbecker v. West Islip Union Free School District, the court reasoned that the School District owed no special duty to the plaintiff. It held that the mere provision of security does not give rise to a special duty of protection. In this case, the School District established that it did not make direct assurances regarding security to the plaintiff and that he did not rely on the provision of security in deciding to congregate with others on the field. Further, the West Islip UFSD demonstrated that the failure to lock the gates accessing the field was not a proximate cause of the plaintiff's injuries, since the assault was not a foreseeable act. It is well settled that a plaintiff must prove that the public entity's negligent acts must be the proximate cause of the injury sustained as the result of a foreseeable act by a third party. This was not established by the plaintiff. Since neither theory advanced a triable issue of fact, the Appellate Division reversed the lower court and held the district was entitled to summary judgment. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News An Open and Obvious Condition May Not Always Be So Obvious in New York March 22, 2024 < Back Share to: It is well settled in New York that while an owner of real property has a duty to maintain a reasonably safe premises, it has no duty to protect or warn against open and obvious conditions that are not inherently dangerous. A defendant has the burden to prove both elements, and failure to do so will preclude summary judgment on the open and obvious defense. The Appellate Division, Second Department recently addressed this issue in Butler v NYU Winthrop Hosp. In that case, the plaintiff was injured after her foot became entangled in medical equipment tubes and cords while visiting her son in the defendant’s hospital. The trial court granted the hospital’s summary judgment motion, in part, because it found that the alleged hazard was open and obvious and not inherently dangerous. The Second Department reversed and denied the hospital’s motion, finding that the hospital failed to establish, prima facie, that the condition of the tubes and wires were not open and obvious and not inherently dangerous under the circumstances. In so holding, the Court observed that a condition is open and obvious if it is readily observable by a person making reasonable use of their senses, given the conditions of the accident. A condition that is ordinarily apparent may be dangerous if it is obscured or the plaintiff is distracted. The takeaway from Butler is that a defendant cannot assume that a condition causing an accident is open and obvious and not inherently dangerous simply because it can be seen. The Court in the case did not explain the hospital’s failure on the motion, but it is clear that a defendant must introduce concrete evidence to establish these elements of the defense in order to prevail on summary judgment. Butler v. NYU Winthrop Hosp .pdf Download PDF • 720KB Previous Next Alexander Rabhan Alexander Rabhan Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News App. Div: School's are Not Insurers of Student's Safety During Recess May 8, 2012 < Back Share to: In Benavides v Uniondale Union Free School Dist., the infant-plaintiff - a second-grade student - commenced an action against his school for inadequate supervision after he was pushed down a slide by a fellow student during recess. The school established its entitlement to summary judgment by showing the playground was adequately supervised and that the level of supervision was not a proximate cause of the subject accident. In affirming the decision, the Appellate Division stated schools cannot reasonably be expected to continuously supervise and control all movements and activities of its students and cannot be held liable for every thoughtless or careless act by which one pupil may injure another. Notably, the Second Department considered the plaintiff's 50-h hearing testimony. Typically, trial courts have required a hearing to determine if an infant is swearable (understands the obligation to testify truthfully) before considering any testimony. Here, the plaintiff's attorney claimed that the testimony was inadmissible because of his client's age. However, the court refused to consider the plaintiff's argument stating it was improperly raised for the first time on appeal. Thus, as the swearability of an infant plaintiff does not present a pure question of law appearing on the face of the record, the Courts have the discretion to consider an infant's testimony at face value without such a hearing. Thanks to Bill Kirrane for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Pennsylvania Court Rescinds Policy Based On Insured’s Fraudulent Acts September 6, 2018 < Back Share to: The U.S. Eastern District Court for Pennsylvania recently rescinded an insurance policy based on the insured’s fraudulent misrepresentations. In Pallante v. Those Certain Underwriters At Lloyd’s, a fire occurred at an insured's property while the insured was away. After the fire, during an inspection of the property with the insurer’s adjuster, the insured represented that there were also several personal items missing from the property and advised that a theft had also occurred. Subsequently, the insured sent photographs of the items that were allegedly stolen from the property. The insurer had the photographs analyzed and it was revealed that the photographs were all taken after the fire and theft were alleged to have occurred. Consequently, the insurer denied the claim based on concealment and misrepresentation. The insured subsequently commenced a declaratory judgment action asserting breach of contract and bad faith claims against the insurer. The insurer moved for summary judgment. In determining whether to grant the motion, the court reasoned that there was no dispute that the insured made material false misrepresentations regarding her claim. Thus, looking to the policy language, the court concluded that since the policy did not provide coverage if the insured concealed or misrepresented facts, the insurer was entitled to rescind the policy on that basis. Accordingly, this case shows that, under certain factual circumstances, Pennsylvania Courts will support a policy’s rescission, and it appears to be viable basis for insurers to contest coverage in Pennsylvania. Thanks to Colleen Hayes for her contribution to this post. Previous Next Contact

News Video Surveillance Leaves Questions For The Jury (NY) May 27, 2022 < Back Share to: Even though video surveillance showed the plaintiff switching lanes in front of defendant’s bus at the same time as defendant, the Appellate Division still found there to be several issues of fact in a recent New York case. In Fergile v. Payne, plaintiff was riding a motor scooter in the right lane of traffic. Defendant bus driver was also traveling in the right lane, behind plaintiff. As the plaintiff approached an intersection he moved into the left lane. The bus also moved into the left lane and stuck the rear of the plaintiff’s motor scooter. In New York, the “emergency doctrine” provides that when an actor is faced with a sudden and unexpected circumstance which leaves little time for deliberation, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. The Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on this doctrine. On appeal, the Appellate Division reversed and held that despite the defendant bus driver claiming she did not see the plaintiff until seconds before the incident, there were still issues of material fact sufficient to overcome the motion, including whether the defendant’s own actions caused the emergency, and her response to the emergency. This case reveals that even when there is surveillance video clearly showing that a driver only had a split second to make a decision, summary judgment may not be granted easily based on the emergency doctrine. The actions leading up to the emergency as well as the party’s response will be weighed thoroughly when evaluating the motion. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Silence can be Deadly - Failure to Disclose Witness is Fatal to Plaintiff's Claim (NY) October 19, 2016 < Back Share to: The Second Department recently upheld a pretrial win for Muintir, LLC over claims launched by a customer who tripped on Muintir’s property in Gallway v. Muintir, LLC. In affirming, the Court found that there was no showing that Mutinir had actual or constructive notice of the defective condition that allegedly caused plaintiff's fall. On October 28, 2011, Gallway, was dining at Dalton Sea Side Grill, a Tenant of Muintir, with her granddaughter. Upon exiting the restaurant, plaintiff allegedly tripped and fell on a defect in the sidewalk abutting the premises, which was owned by Muintir, LLC. Plaintiff describes the defect as a crack radiating from a hole 1.5 inches deep with a diameter larger than a silver dollar. In her deposition she stated that she had visited the restaurant ten times in the year preceding her accident where she had never observed the alleged sidewalk defect. Muintir moved for summary judgment claiming they lacked actual or constructive notice of the defect in the sidewalk. In support of the motion, included was the deposition of an employee of the restaurant who testified that he did not observe the defect in the sidewalk. In opposition, Gallway submitted an affidavit of her granddaughter, a witness not previously disclosed, who stated she had seen the defect on a prior occasion. The Court refused to consider the granddaughters affidavit, finding for Muintir. The Appellate Court held that the motion court properly refused to consider the affidavit of the Plaintiff’s granddaughter to establish that Defendants had notice of the sidewalk defect that caused her grandmother to fall. Plaintiff failed to disclose her as a notice witness during discovery and did not offer a valid excuse for that failure. Without the granddaughter’s affidavit, the Appellate court found that plaintiff failed to establish the claimed defect was present for a sufficient length of time to give the Defendant constructive notice of its existence. The Court's ruling demonstrates that plaintiffs must take discovery seriously, including witness disclosure, lest they be precluded from relying upon such undisclosed information at trial. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News PA Superior Court Applies Fair Share Act to Strict Liability Action January 5, 2018 < Back Share to: The Pennsylvania Fair Share Act, enacted in 2011, regulates the apportionment of jury verdict awards for liable parties. The Fair Share Act mandates that all defendants are responsible for the share of liability apportioned to them, with the exception that a defendant could be liable for the entire award if found more than 60% liable. In plain English, any defendant with 60% or less allocated liability in a case involving the Fair Share Act is only responsible for its own culpability and cannot be made to satisfy the entire judgement if a portion of the judgment is, for whatever reason, not collectable. The Fair Share Act unquestionably includes negligence verdict awards but the Pennsylvania Supreme Court and Pennsylvania Appellate Courts , until recently, had yet to weigh in regarding the applicability of the Fair Share Act for strict liability cases sounding in tort actions. In Roverano v. John Crane Inc, the Superior Court of Pennsylvania dealt with the Fair Share Act within the context of a strict liability asbestos action where plaintiff claimed he sustained lung cancer as a result of exposure to asbestos. The trial court had decided that the jury could not apportion liability because the case involved strict liability for asbestos exposure. The Superior Court held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors. The Court held that was mandated per the legislative intent underlying the enactment of the Fair Share Act. Additionally, the Court held that the clause in the applicable statute “including actions for strict liability” is revealing. Finally, the Court found legislative history instructive as older versions of the bill included “causal negligence” but were replaced in the enacted statute with “liability”, thus allowing an inference of greater inclusion of possible actions. The Superior Court’s decision means that a “fact-finder [should allocate] liability among joint tortfeasors in all types of cases, including strict liability cases”. The Court specifically declined to weigh in how exactly to allocate liability, but that the liability allocation should not be done on a per capita basis, Revealingly, the Superior Court did note that the jury should consider evidence of any previous settlements with released defendants as part of its liability determination. Thanks to Matt Care for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Pyrotechnic Promotion of Rum Burns Bacardi (NY) December 15, 2011 < Back Share to: Everyone knows that playing with fire is generally not a good idea. But recently, Bacardi found itself on the wrong side of a summary judgment decision, in part, because the Court found that it encouraged such behavior. In Scalfani v Brother Jimmy’s BBQ, Inc., plaintiff was injured during a “pyrotechnic” display when the bartender poured Bacardi “151” onto the bar and ignited it. Bacardi 151 has an alcohol content that exceeds 75%, and as such is often used because it is capable of being ignited. In fact, plaintiff alleged Bacardi promoted bartender flame tricks at a Las Vegas bartending convention. Unfortunately, during this incident at Brother Jimmy’s, the flame spread from the bar the bottle, and the remaining rum ignited and shot out, severely burning plaintiff. Plaintiff brought claims under theories of strict liability and negligence against Bacardi, alleging the bottle was defectively designed. In New York, a defectively designed product is one which, “at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use." If the "utility" of a product "does not outweigh the danger inherent in its introduction into the stream of commerce," then the product is defectively designed. In its defense, Bacardi claimed that the bottle included a flame arrester, and also warning labels. It also argued that the intended use of the product is to be consumed, not to ignite flames. But the Court held such arguments were not sufficient to award Bacardi summary judgment, particularly where it was alleged that Bacardi had actively promoted the very type of pyrotechnic displays that caused plaintiff’s injury. Thus, plaintiff’s claims survived for a jury to determine liability. Thanks to Joe Fusco for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com Previous Next Contact

News Are Stricter E-Discovery Rules Coming to NY State Court? March 17, 2010 < Back Share to: Federal courts have had strict e-discovery rules since the 2003 Zubulake decision . New York's state courts may soon be joining the parade. A report has been issued recommending changes and additions to how courts handle e-discovery. Key recommendations include: an addition to the Preliminary Conference form to highlight e-discovery issues and responsibilities; consideration of a court rule requiring counsel appearing at the preliminary conference to be competent to discuss client technology systems; a pilot project designating e-discovery specialists to assist judges in supervising and resolving protracted e-discovery disputes; pilot projects in selected courts regarding disclosure of e-discovery issues and e-discovery compliance. E-discovery is here to stay, and all counsel, and their clients, must be prepared. For more information about this post, please contact David Tavella at dtavella@wcmlaw.com http://www.courts.state.ny.us/press/pr2010_05.shtml Previous Next Contact

News What’s "Exceptional" about a Late Notice to a Public Entity in NJ October 4, 2012 < Back Share to: The New Jersey Tort Claims Act is the New Jersey Legislature’s answer to the State courts’ attempt to abrogate common law sovereign immunity. This legislation permits certain tort actions against public entities, but it places significant limitations on a plaintiff. One of those limitations is a requirement that a potential plaintiff give the public entity notice of the claim before filing suit. To this end, a claimant must file a Notice of Claim with the public entity within 90 days of accrual of the claim to permit it time to investigate and, perhaps, resolve it. But what happens when a plaintiff fails to file in 90 days? The statute says that the claimant must then show exceptional circumstances to permit a late notice. What exactly qualifies as exceptional circumstances is a matter in that the New Jersey Supreme Court recently took up oral argument of D.D. v. University of Medicine and Dentistry of New Jersey. In D.D. , the plaintiff sought to file a claim when her AIDS status was revealed despite her expectation of privacy of this confidential information. She wrote to UMDNJ to demand that it stop disseminating the information. She also contacted an attorney who met with the school to address the situation. However, the attorney never filed a notice of claim. The plaintiff followed up with the attorney, but he did not take her calls. After 90 days expired, she sought out a new attorney. The Supreme Court justices grilled UMDNJ’s counsel on the issue of exceptional circumstances and whether attorney negligence is "ordinary" "these days." Justice Albin noted the plaintiff’s poor health and unsuccessful efforts to reach her counsel. Albin suggested that an average person would not know about the 90-day deadline. UMDNJ’s counsel pointed out that the current state of the law is that ignorance of law is not sufficiently exceptional. We’ll have to wait to see whether the Supreme Court agrees. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News When Is an Adams Not an Adams? When the Expert Changes His Mind. September 7, 2010 < Back Share to: Ansel Adams is one of the most well-known American nature photographers -- http://en.wikipedia.org/wiki/Ansel_Adams . Original works by him are thus quite valuable. It was thus quite exciting when Rick Norsigian bought a box of negatives at a California garage sale for $45 and, through the assistance of experts, was able to authenticate the negatives as original Adams’s works with a value of more than $200,000,000. Robert Moeller III was the lead expert who authenticated the find. Now, just as the prints are about to go on sale, Moeller has changed his mind -- http://www.nytimes.com/2010/08/31/arts/design/31adams.html?ref=arts. He no longer believes that the works are Adams, but rather are the works of Earl Brooks, an unheralded photographer. Since the $200,000,000 valuation is nowhere close to the value of Brooks’s originals – a Brooks negative might sell for $25 whereas an Adams negative might fetch $7,500 – the authenticity dispute is only likely to increase. It should make for an interesting diminution in value claim if a loss ever results! If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact