News NY Extends time to file 9/11 Claims September 25, 2009 < Back Share to: Generally, a party that seeks to file suit against a New York municipality has 90 days to provide notice of a claim. With the types of injuries arising out of 9/11, this date usually begins to run from the date the injured party discovered the injury. However, last week, New York’s governor signed a bill opening a new one-year window, reviving claims that would otherwise be time-barred. As you might expect, New York City was fiercely opposed to this move, arguing that thousands of new lawsuits may result with hundreds of millions of dollars in exposure. In addition, the City’s ability to defend older claims may also be compromised. But the State legislature believed it was more important to provide injured parties with their day in court. http://assembly.state.ny.us/leg/?bn=A07122&sh=t Previous Next Contact

News NJ Appellate Court Reverses Summary Judgment Granted Based On Ordinance or Law Policy Exclusion September 12, 2012 < Back Share to: In Leda Puhlovsky v. Rutgers Casualty Insurance Company, the Appellate Court overturned a trial court’s Order of summary judgment in favor of the insurer. The plaintiff owned a four-story commercial building in Paterson. In March 2008, the adjacent building collapsed and was ultimately demolished. The western brick wall of plaintiff’s building was built into the wood frame of the adjacent building, creating a common wall in between them. After the collapse of the adjacent building, a municipal engineer examined the plaintiff’s building and found it to be unsafe. City officials instructed the plaintiff to either demolish the building or repair it so as to conform to Code. She opted to demolish the building and afterwards filed a claim with her insurer, Rutgers Casualty, under the policy issued for the commercial property. An engineer retained by Rutgers examined the building and determined that there had been gradual movement in the building in the past few years due to the earth sinking and settling and that the loss of support from the adjacent building exacerbated the condition. Plaintiff’s expert also inspected the building and determined that the damage occurred due to the partial collapse of the adjacent building and vibrations from demolition of the adjacent building. Rutgers eventually denied coverage under the policy's exclusions for losses occasioned by the enforcement of any ordinance or law, or arising from neglect, faulty construction or earth movement. The trial court agreed with Rutgers’ position and granted summary judgment its favor. The Appellate Court reversed and found that the exclusions in the policy did not apply to the specific circumstances of this case. Noting that insurance policy exclusions must be narrowly construed, the court determined that the “ordinance or law exclusion” did not apply to the facts of this case, since the building was not demolished at the direction of the City of Paterson. Rather, the City gave plaintiff the choice either to demolish the structure or immediately correct the hazards and render the building safe. Moreover, the exclusion in the Rutgers policy refers to code enforcement requiring the tearing down of any property, which is not what happened in this case. Further, similar exclusions in other policies have been construed to apply to the increased expenses incurred by an insured in repairing or rebuilding a damaged structure so as to bring it into compliance with a local code or ordinance. Lastly, the Appellate court held that the motion judge's reliance on the "earth movement" exclusion was not warranted in the context of a motion for summary judgment. Rather, the question of whether or not the settling, cracking or other disarrangement of plaintiff's building occurred as a consequence of "earth movement" was a question of fact for a jury. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a5100-10.pdf Previous Next Contact

News Movie Theater Employee’s Outside the Box Assault is Outside Scope of Employment (NY) February 11, 2020 < Back Share to: Due to the principle of respondeat superior, more employees mean more exposure to the employer for their employees’ actions. That said, the First Department recently emphasized the potential strength of an employer distinguishing the employee’s actions from their actual job duties as a defense. In Gregory v. National Amusements, Inc., the plaintiff Gregory claimed she viewed a film at the defendants’ movie theater. While walking out of the movie, Gregory alleged she tapped the defendant’s employee on the shoulder to say she liked the movie and then employee turned and without warning slashed Gregory’s face with a box cutter. Encouragingly for defendants, even though the employee in question was a security guard and was working at the time of the incident, the First Department found that an alleged unprovoked assault was outside the scope of his employment as a matter of law. Specifically, the appellate court framed the alleged actions as “not in furtherance of [the employer’s] business interests,” even if plaintiff may have argued a security guard’s duties theoretically include physical altercations with customers. As a result, the First Department modified in part and affirmed in part an order from the trial court such that all claims against National Amusements were dismissed. This decision is helpful for defendants who seek to aggressively pursue motion practice by advancing this theory in similar scenarios. Thanks to Nicholas Schaefer for his contribution. If you have any questions or comments please contact Vincent Terrasi. Previous Next Contact

News Does a Property Owner have a Duty to Protect against a Driver who Jumps a Curb and Crashes into Their Building? (NY) May 21, 2021 < Back Share to: In Collins v. Delaware Ave. Enters, Inc., the Appellate Division, Second Department addressed whether the defendant was entitled to summary judgment dismissing the plaintiff’s complaint. Plaintiff brought this cause of action when a motor vehicle jumped a curb and sidewalk and crashed into a strip mall owned by the defendants. At the time of the crash, plaintiff was inside of the building when the vehicle struck him after going through the front window. The court stated, “A property owner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition”. "However, there is no legal duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against." There will ordinarily be no duty imposed on a defendant to prevent a third party from causing harm to another unless the intervening act which caused the plaintiff's injuries was a normal or foreseeable consequence of the situation created by the defendant's negligence". (citations omitted) The court held that the defendants were properly granted summary judgment because they 1) maintained their premises in a “reasonably safe condition” and that it did not have a duty to protect plaintiff against the “unforeseen intervening conduct” of the driver. This decision serves as a reminder that although property owners have a duty to maintain its premises in a safe condition, that the duty does not extend to unforeseen conduct. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Texas Leads The Way In The Execution Of Prisoners December 26, 2007 < Back Share to: As other states look to follow New Jersey and abolish capital punishment, Texas steadfastly continues to execute prisoners in its uniquely, efficient manner so that 60% of the Country's executions occur in the Lone Star State. http://www.nytimes.com/2007/12/26/us/26death.html?pagewanted=1&_r=1&ref=todayspaper&adxnnlx=1198670845-RmN68upQhD1iQaVB8L6w9Q Previous Next Contact

News Update & Interpretation: NY Venue Statute For Personal Injury Actions Amended May 11, 2018 < Back Share to: As we wrote in our October 2017 post, a new amendment to CPLR 503, changed the basis of venue determinations to include, not only where the parties reside, but added “the county in which a substantial part of the events or omissions giving rise to the claim occurred”. The justification for the amendment was to give the courts and jurors of communities with the most interest in setting community standards the ability to decide these cases and controversies, and case law is beginning to develop in this area. Contemplated as an advancement in forum shopping for the plaintiffs’ bar, the statute has favorable implications for the defense bar as well. In Taylor v. Montreign Operating Co., Inc. , a well-known New York City plaintiff’s firm placed venue of a personal injury action in New York County. Defendant moved to change venue to Sullivan County, a rural upstate county, where the accident occurred. The lower court denied defendant’s motion and the Appellate Division, First Department reversed, and changed venue to Sullivan County. In finding that defendant demonstrated that the convenience of nonparty witnesses would be better served by the venue change, the First Department ruled that the trial court improvidently exercised its discretion in denying the motion. Other than one defendant’s registered principal place of business, and one of plaintiff's physicians maintaining an office in the county, the case had no contact with New York County. Defendants sought to move the case to the county where the accident occurred. Importantly, Defendants submitted the affidavits of four first responders and plaintiff's coworker, all of whom averred that they would testify as witnesses, but would be inconvenienced by traveling to New York County. The court brushed off plaintiff’s arguments that the affidavits were not sufficiently detailed and accepted that the non-party witnesses were material and necessary. Moreover, plaintiff’s argument that there was a likelihood of summary judgment on liability under the Labor Law was deemed irrelevant. Savvy plaintiffs will always look to place the controversy in the most plaintiff-friendly venue. Yet, defense counsel could use the application of the amendment to CPLR 503 to nullify that perceived advantage. With any new lawsuit, careful consideration must be given to the location of the accident and the convenience of witnesses in that venue. Results from a detailed and early investigation into witnesses could bolster support for a venue change to the proper community and perhaps result in a more balanced jury pool. Thanks to Vincent Terrasi for his contribution for this post. Please write to Tony Pinto for more information. Previous Next Contact

News NY's First Department Allows Insurer to Rescind April 9, 2009 < Back Share to: The First Department recently reiterated its position in respect of policy recision in Kiss Construction NY Inc. v. Rutgers Cas. Ins. Co. In applying for insurance coverage, Kiss represented that it was solely a painting company. However, it was sued by a construction worker and during the claim investigation, Rutgers learned Kiss had been serving as a general contractor and disclaimed coverage for the underlying action based on this material misrepresentation. Kiss filed a declaratory judgment action against Rutgers seeking a defense and indemnification, and in an affirmative defense, Rutgers moved for recision of the policy. Rutgers motion for summary judgment was denied, but the Appellate Division reversed the decision and held the policy was rescinded. Of interest is the fact that Rutgers did not formerly give notice of the recision prior to this action, nor did it return the premium. In addition, prior decisions of the Court held that an insurer’s duty to defend existed pending a judicial determination of its right to rescind. Although that point was reiterated here, it appears that an insurer with knowledge of a misrepresentation is not forced to assume a defense, provided it is ultimately successful in obtaining a judgment that recision was proper. Thanks to Stephanie Chen for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02540.htm Previous Next Contact

News Adjacent Property Owner Not Liable Where Plaintiff Struck By Falling Tree Branch June 22, 2009 < Back Share to: In Rivers v. City of New York, the plaintiff was injured when a large tree branch fell and struck her on the head while walking along a public sidewalk. In granting the adjacent property owner's motion for summary judgment, the court acknowledged that the law imposes a duty to maintain ones property free and clear of dangerous or defective conditions, but held that the property owner demonstrated that they neither owned the tree nor exercised any control over it. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_05102.htm Previous Next Contact

News NJ Court: Mom is a Mom, not a Volunteer June 5, 2020 < Back Share to: In New Jersey, under the Charitable Immunity Act, a charitable organization is immune from negligence suits filed by "beneficiaries" of the organization's works. Recently, in Smith v. Diocese of Camden, a mother delivering sweets to her second grader’s class argued that she was a "volunteer" for the parochial school and therefore not barred from filing suit when she sustained personal injury on school property. The Appellate Division saw through this mother’s claim, noting that she would not have gone to the school but for the fact that her child was in the class. She was not a volunteer with specific duties that required her to be present at the school on the date in question, and had gone there simply to bring treats to her child’s class. As a parent of a child in the school when she entered the property, she was a "beneficiary of the works" of the school and, as such, the Appellate Division affirmed summary judgment in favor of the Diocese based upon the Charitable Immunity Act. Thanks to Denise Ricci for her contribution. http://lawlibrary.rutgers.edu/decisions/appellate/a5261-07.opn.html Previous Next Contact

News Inspection Evidence Prevails in Rainy Slip Case (NY) October 14, 2016 < Back Share to: In Mavis v Rexcorp Realty, LLC, a recent decision from the Second Department Appellate Division, the Court addressed a few recurring legal issues that often arise in premise liability actions. The plaintiff in this case alleged she was injured on a rainy morning after she slipped and fell on the lobby floor of the building where she worked. She filed suit against the building owner and the contractor hired to clean the common areas of the building. The defendants filed motions for summary judgment, each with different arguments. The owner argued that there was no notice of a dangerous condition, submitting deposition testimony as to when the building’s employee and the contractor each inspected the area of the fall. In affirming the Supreme Court’s decision granting summary judgment, the Appellate Division held that “a defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it.” The decision continued, “to meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall.” In finding the defendant met its burden through deposition testimony, the court reminded the parties that the “submission of evidence as to the defendant's general cleaning practices is generally insufficient” and “specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case.” With respect to the contractor-defendant, the plaintiff sought liability based upon the contract between the defendants. However, the general rule is that a contractual obligation standing alone will not give rise to tort liability in favor of a third party. The Appellate Division applied this principle and noted that although there are exceptions, if the plaintiff does not expressly plead an exception, or set forth one in the bill of particulars, one will not apply. For this reason, the Appellate Division affirmed the finding of summary judgment in favor of the contractor-defendant. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Court Will Not Seal Record in Malpractice Litigation (PA) July 2, 2020 < Back Share to: A Pennsylvania trial court recently denied a plaintiff’s attempt to seal the entire record in a breach of contract and bad faith litigation against an insurer and its underwriter. In Moses Taylor Foundation v. Coverys, a hospital and its self-insurance trust filed a motion to seal its complaint and the entire record in order to preserve the confidentiality of its settlement negotiations and outcome. The lawsuit was commenced against a hospital’s excess liability coverage insurer and its underwriter alleging breach of contract and bad faith liability claims for refusing to provide coverage in an underlying malpractice case. The hospital claimed that it was required to deplete its excess coverage funds which resulted in less aggregate excess coverage being available for the hospital in other malpractice lawsuits. The hospital filed a motion seeking to seal its complaint and the entire record arguing that it was necessary to preserve the confidentiality of its settlement negotiations, valuation methods, and payments in the malpractice case, as well as the terms and outcome of the binding arbitration proceeding which was subject to a confidentiality provision contained in the accompanying arbitration agreement. In response, the insurer contended that the hospital failed to identify a “clearly-defined” and “serious injury” that may be suffered by the hospital from public access to the records. The Court of Common Pleas of Pennsylvania, Lackawanna County opined that to “warrant the closure of the entire judicial record, the hospital and trust must establish that their interest in secrecy outweighs the longstanding common law presumption in favor of public access to the records of the taxpayer-subsidized judicial system.” Furthermore, the Court pointed out that the terms of the arbitration agreement, the result of the arbitration hearing, the amounts paid by the trust and the excess insurers, and much of the conduct by the excess insurer which was the basis of the hospital’s bad faith claim were already matters of public record in the underlying malpractice litigation. Additionally, the Court emphasized that settlement discussions, valuation methods, and claims handling practices that the hospital argued should be confidential were all frequently disclosed in bad faith liability actions against insurers. Finally, the Court addressed the confidentiality agreement among the parties in the underlying malpractice lawsuit. Specifically, the Court determined that the existence of a confidentiality agreement among the parties did not control the Court’s determination of whether sealing of the record was appropriate. The Court decided that the secrecy interests cited by the hospital did not supersede the presumption in favor of open access to judicial records so as to justify court-sanctioned closure of the record. As such, the hospital’s motion to seal the record was denied. One of the risks inherent with protracted bad faith litigation is the potential that otherwise private communications or activity could be made public. Thanks to Zhanna Dubinsky for her contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News The Building Code applies, but which one? (NY) March 15, 2017 < Back Share to: New York City, like many large metropolitan areas, has maintained a Building Code governing how buildings must be constructed and laid out for well over a century. As with all municipal codes, the Building Code has gone through several iterations over the years, becoming more detailed and expansive as our understanding of what constitutes a safe and habitable building has changed. One difficulty for premises liability practitioners is figuring out which specific Building Code applies to the site of an alleged accident. It is quite common for three buildings standing next to one another to have three different versions of the Building Code apply to each of them, depending on when the building was first built and whether, during subsequent construction or renovation, the Department of Buildings required the building be brought “up to” a newer Code. The First Department’s recent decision in Verderese v 3225 Realty Corp. reminds us that correctly determining the applicable Building Code provision often determines whether a defendant property owner will be liable to an injured plaintiff. In Verderese, plaintiff fell on a set of interior stairs in a residential building. She alleged there were no handrails present, and that this violated the applicable 1916 Building Code. The trial court awarded summary judgment to defendant, and the First Department affirmed. Looking to the 1916 Building Code, the First Department determined that while handrails were required for “interior stairs,” the Code did not define what they were. Looking to the more recent 1968 Building Code for guidance, the First Department held that while “interior stairs” allow egress to the exterior of the building, “access stairs” provide travel between floors in the building. Relying on two photographs of the stairs in question produced by defendant, the First Department ruled that the stairs were “access stairs”—and therefore did not require handrails under the 1916 Building Code—because while the stairs were within the building lobby, they did not provide access to the outside. Based on its analysis, the First Department also rejected plaintiff’s expert report. The court reasoned that because there was no violation of the 1916 Building Code, and because the 2008 Building Code did not apply (the two Codes the expert used to establish his opinion), the expert could not rely on either to say that the lack of handrails violated accepted engineering practices. Verderese serves as a reminder to all premises liability practitioners to examine plaintiff’s bill of particulars and expert reports for alleged Building Code violations, and then determine whether the alleged violations applied to the building in question. If plaintiff’s claim for liability is predicated on an inapplicable Code, summary judgment remains viable. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at mailto:dricci@wcmlaw.com   Previous Next Contact