News The Light at the End of the Tunnel? NY State Bar Association Creates Group to Help Law Firms Re-open May 1, 2020 < Back Share to: With the current state of New York amidst COVID-19, and the wheels of justice always spinning, one major question every attorney is asking, is when will their office re-open? The New York State Bar Association (“NYSBA”) wants an answer that question sooner rather than later. On March 20, 2020, Governor Andrew Cuomo issued the "New York State on Pause" Executive Order (EO 202.8). Under Gov. Cuomo's March 20th order, non-essential workers, including lawyers, are required to work from home. However, with recent reports of infections dropping, the governor has talked about a phased re-opening of specific sectors of the economy. On April 29, 2020, The New York State Bar Association announced the creation of "Restarting the Economy Working Group," which will be tasked with making recommendations on how to bring lawyers and staff back to their offices as soon as possible. Members of the new group are comprised of prominent attorneys from some of the biggest law firms in the world. The state group will consult with a wide range of officials, from law firm managers to health and labor experts, to help guide law firms and policymakers with the most efficient way for law firms to re-open while keeping everyone's health a top priority. The creation of the advocacy group tells us one thing during these uncertain times – the New York State Bar Association is cognizant of the unprecedented issues the legal profession is facing and has taken a step forward to address the myriad concerns involving the health and safety of those employed by law firms. We look forward to hearing the recommendations made by the NYSBA as they become available. Thanks to Irving Fayman for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News High School Wrestler Assumed Risk of Injury from Wind Sprints June 17, 2009 < Back Share to: In Musante v. Oceanside Union Free School District, the plaintiff was injured at wrestling practice when he tripped over the edge of a wrestling mat while participating in "wind sprints." As a result of tripping on the mat, plaintiff claimed he was caused to collide with a nearby wall. The plaintiff alleged that the defendant was negligent in directing him to use the wall as a finishing point for the drill. The trial court denied the defendant's motion for summary judgment. On appeal, the Appellate Division, Second Department, reversed and granted the defendant's motion for summary judgment. The Appellate Division reasoned that by participating in a sport or recreational activity, the plaintiff had consented to the commonly appreciated risks which were inherent in and arose out of participation in the sport. The court further stated that the defendant met its burden by demonstrating that the risk of colliding with the wall was inherent in the activity and that the condition of the wall was open and obvious. Thanks to Brad Thelander for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_04877.htm Previous Next Contact

News No Summary Judgment Where a Plaintiff Bicyclist’s Failure to Stop Before Crossing the Street is a Question of Fact < Back Share to: Generally, a plaintiff in a New York negligence action can move for summary judgment on the issue of liability by establishing that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence proximately caused the injuries alleged. When a plaintiff can establish a violation of the Vehicle and Traffic Law, negligence is established as a matter of law. For example, Vehicle and Traffic Law §1234(c) provides that any person operating a bicycle who is entering the roadway from a private road, driveway, alley or curb, shall come to a full stop before entering the roadway. This section is not applicable where the bicycle operator crosses the roadway in a marked crosswalk after leaving the sidewalk through a curb out. The Appellate Division, Second Department recently addressed these issues in Jennifer Hart v. Catherine Chang . In that case, plaintiff’s son was injured when his bike collided with defendant’s vehicle at an intersection. The son was traveling northbound on the sidewalk while the defendant was traveling westbound, and the collision occurred when the son turned right from the sidewalk to travel east while the defendant turned left to travel south. The Second Department affirmed the lower court’s decision to deny plaintiff’s motion for summary judgment as to liability, observing that the son testified at deposition that while riding his bicycle on the sidewalk he began to turn right when he saw there was a green light for vehicles. He also stated that although he was in the crosswalk when the accident happened, he failed to mention whether he stopped before making the turn. The defendant testified that she first observed the young man 10 to 15 feet south of the crosswalk immediately after the collision. The Court found that such conflicting testimony raised a triable issue of fact as to whether the son’s action in failing to stop before entering the roadway pursuant to VTL §1234(c) was the sole proximate cause of the collision. The Hart decision confirms the general rules that: 1) a party cannot obtain summary judgment on the issue of liability in New York where there is conflicting testimony as to how an accident occurred; and 2) bike operators must come to a stop before entering a roadway or be subject to liability for a resulting accident (or comparative liability in the case of a plaintiff). Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Hart v Chiang (2023 NY Slip Op 06241) .pdf Download PDF • 99KB Previous Next Contact

News Comparative Negligence Defense in Play Even When Plaintiff Obtains Summary Judgment on Liability November 3, 2023 < Back Share to: In Jones v Haifeng Zuo , the Appellate Division, Second Department recently addressed competing liability claims in an automobile accident case. In that case, the defendant was having trouble seeing oncoming traffic after stopping at a stop sign at an intersection. He inched his vehicle forward to look for cars and collided with the plaintiff’s vehicle. Plaintiff moved for summary judgement on the issue of liability, also seeking a dismissal of defendant’s comparative liability claim, based on Vehicle and Traffic Law § 1142(a). That section provides that “every driver of a vehicle approaching a stop sign shall stop . . . and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway, or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection." The trial court granted the motion in its entirety. The Second Department first affirmed the trial court’s grant of summary judgment as to the defendant’s liability, finding that plaintiff submitted an affidavit establishing that the defendant failed to yield the right-of-way after stopping at the stop sign and collided with plaintiff’s vehicle. However, the Court also reversed the trial court’s dismissal of defendant’s comparative negligence defense. In so holding, the Court recognized that a driver who has the right-of-way still has a duty to “exercise reasonable care to avoid a collision [and] to see what there is to be seen through the proper use of his or her senses." The defendant’s Affidavit emphasized that he remained in the same location for 10-20 seconds after moving beyond the stop sign so there were triable issues of fact as to whether plaintiff holds some liability for failing to reasonably avoid the accident. The takeaway from Jones is that automobile defendants should pursue a comparative negligence defense even when they have potential liability and plaintiff will likely prevail at the summary judgement stage. Pressing and preserving the defense can weaken a plaintiff’s damages claim and provide stronger settlement leverage. Jones v. Haifeng Zuo .pdf Download PDF • 1.24MB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News NJ Appellate Division Continues National Trend Rejecting 6 Plaintiffs’ Claims for Business Income Loss as a Result of COVID Mandates June 24, 2022 < Back Share to: The national trend rejecting pandemic business income loss claims continues. In a consolidated appeal, on June 20, 2022, the New Jersey Appellate Division decided against six companies that sought insurance coverage for business income losses sustained after New Jersey Governor Murphy’s Executive Orders required them to limit or close their businesses in the early days of the COVID pandemic. The plaintiffs in the respective cases – owners and operators of a gym, a day care, a baked goods store, three restaurants – brought breach of contract and/or sought declaratory judgments against insurers that denied their claims for Covid business income losses as a result of the government orders. The respective defendant insurers – Selective Fire and Casualty Insurance Company, Markel Insurance Company, Blackboard Insurance Company, Wesco Insurance Company, Amtrust Insurance Company, Philadelphia Indemnity Insurance Company – moved to dismiss with prejudice under Rule 4:6-2(e) arguing that the insurance policies, which the Appellate Division found to all be “essentially identical,” did not cover plaintiffs' business losses because the suspension of their businesses due to the Executive Orders was not a “‘direct physical loss of or damage to’ their insured premises.” The Court also rejected plaintiffs’ arguments that the business income losses were covered by the policies’ “Civil Authority” clauses, looking to other courts for persuasive guidance. The Court further rejected plaintiffs’ claims that the lower courts should have given them the opportunity to amend their complaints to add regulatory estoppel claims based on alleged misrepresentations made by the insurance industry about virus exclusion provisions. Noting that the business income losses were not covered under the policies anyway, irrespective of whether the virus exclusions applied, the Court held that any such amendments would have been futile. Lastly, the Appellate Division agreed with the insurers that the plaintiffs’ claims could be rejected on the basis of the policies’ virus exclusions. Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Conclusory Expert's Opinion Insufficient To Stave Off Summary Judgment In Escalator Case January 25, 2008 < Back Share to: In Parris v. Port of New York Authority and Otis Elevator, 2008 NY Slip Op 00197, AD and New York Co. Index 121678/03, plaintiff claims to have suffered injuries when the escalator at the Port Authority Bus Terminal he was riding suddenly "jerked" and "pulled" causing him to fall backwards and hit his head. Defendants moved for summary judgment arguing that even if a mechanical defect existed, there were no records of prior complaints and service maintenance records equally reflected no problems. Plaintiff opposed this motion by submitting an affidavit of an expert engineer. This expert, who never conducted an on-scene inspection, averred that plaintiff's accident could have been due to warn parts. While the trial court denied summary judgment, finding a question of fact was raised by this expert, the Appellate Division - First Department disagreed, finding the expert's findings to be factually unsupported and too speculative. On an awkward note, the trial judge, Justice Rolando T. Acosta, was recently promoted to the Appellate Divison - First Department and now sits with the very judges that reversed him. http://www.nycourts.gov/reporter/3dseries/2008/2008_00197.htm Previous Next Contact

News Unlicensed Use of Product Trademarks is not Personal and Advertising Injury August 10, 2017 < Back Share to: The Fifth Circuit recently ruled that the duty to defend “personal and advertising injury” did not extend to the unlicensed use of a product and trademarks. In Laney Chiropractic v. Nationwide, Laney sued its insurer for a declaration of coverage after Nationwide refused to defend Laney against allegations of federal trademark infringement, false advertising, deceptive business practice, breach of contract and unfair competition arising out of Laney’s use of soft tissue massage techniques. Nationwide had determined that the lawsuit lacked an advertising, trade dress or slogan claim and refused to cover the defense. The Fifth Circuit reached its conclusion by reasoning that “[w]hen an insured is accused of using another’s product, they are generally not using another’s ‘advertising idea … because without more, taking and then advertising another’s product is different from taking another’s ‘advertising idea’. The court also did not accept that the false-advertising allegation that Laney’s website mimicked underlying plaintiff’s style of doing business constituted a trade dress claim. The court said trade dress protection is not designed for “patent-like rights” in innovative product designs, and “protects the distinctive look of the product, not the functional product itself.” As creative an insured can be in seeking coverage, the underlying claim governs an insurer’s duty to defend. Thanks to Hillary Ladov for her contribution to this post. Previous Next Contact

News Plaintiffs Can Sleep Tight. If the Bedbugs Bite, They Can Sue (NY) March 28, 2013 < Back Share to: In Bour v. 259 Bleecker LLC, a tenant brought suit against her landlord for renting an apartment to her without disclosing that it had been infested with bedbugs. Despite the fact that she had not sought any medical treatment, her lawsuit included personal injury claims, and allegations of negligent and intentional infliction of emotional distress. Additionally, she sought punitive damages against the landlord. But the trial court dismissed the action on summary judgment. On appeal, the Appellate Division, First Department, affirmed dismissal on the negligent infliction of emotional distress claim, stating that the plaintiff failed to show how defendant’s failure to maintain the property in a reasonably safe manner unreasonably endangered or caused her to fear for her safety. The Court also agreed that the intentional inflection counts could not be sustained, because even though the defendant leased the apartment to the plaintiff while aware of -- and not disclosing -- bedbug history, that conduct did not rise to the level of outrageous conduct required. Most importantly, the Court cited to the fact that at the time the lease was executed, NYC Administrative Code Section 27-2018.1 had not yet been enacted and there was no statutory legal obligation for landlords to provide notice of bedbug infestation history to prospective tenants. The Court also affirmed dismissal of the punitive damages claim, as the landlord’s actions did not rise to the level of pervasive or grave misconduct of a quasi-criminal nature affecting the public in general. However, the Court did not add insult to injury and allowed the personal injury claims to go forward. Although the Court recognized that the lack of medical treatment could impact the monetary value of the claim, the fact that the plaintiff submitted both documentary and testimonial proof of the bed bug bites was sufficient to allow the claims to proceed. Thanks to Michael Nunley for his contribution to this post. If you would like further information about this case, please write to Mike Bono. Previous Next Contact

News NY Dram Shop Act: An Update February 4, 2021 < Back Share to: In Heins v. Vanbourgondien, the minor plaintiff and her father brought a personal injury suit against several defendants as result of a motor vehicle accident on a Suffolk County road. This article focuses on the Court’s decision on the minor plaintiffs’ Dram Shop claim against two 7-11 stores. The 17-year-old plaintiff Abigail Heins was operating a vehicle owned by one of the co-defendants, after consuming alcohol with the vehicle’s three other passengers. A disagreement arose between vehicle’s occupants causing Ms. Heins to become distracted and causing her to swerve into the road’s median. The vehicle rolled over before coming to a stop in the median. GOL §11-101(1), known as New York’s Dram Shop Act (hereinafter “Act”) states in pertinent part and parcel that: “any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxicated person […] shall have a right of action against any person who by unlawful selling or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication.” In 1983, the Act was supplemented with GOL §11-100, to apply to “any provider unlawfully furnishing alcoholic beverages for minors.” However, liability under this portion of the Act can only be imposed on an individual “who knowingly causes intoxication by furnishing alcohol to (or assisting in the procurement of alcohol for) persons known or reasonably believed to be underage.” Plaintiff Abigail Heins drove to two separate 7-11s with her friend and defendant Kimberly Vanbourgondien, 19 years old, and provided the cash for Ms. Vanbourgondien to purchase the alcohol Ms. Heins consumed. The Heins Court held that a plaintiff may generally recover for damage if they establish a “reasonable or practical connection between an illegal sale of alcohol and the plaintiff’s injuries.” Id at 1019, citing Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136, 1137, 100 N.Y.S.3d 35; Giordano v. Zepp, 163 A.D.3d 781, 782, 79 N.Y.S.3d 659; Covert v. Wisla Corp., 130 A.D.3d 966, 967, 14 N.Y.S.3d 455; Tavarez v. Sidetracks, LLC, 128 A.D.3d 806, 807, 9 N.Y.S.3d 368). However, the Court further held that the Dram Shop Act does not provide for a plaintiff who was injured as a result of their own intoxicated condition, and youth does not constitute an exception to the voluntary intoxication rule. The Court ultimately affirmed Summary Judgment in favor of the two 7-11 defendants. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Judicial Shortage Continues. September 12, 2012 < Back Share to: We have previously commented on the lack of a sufficient number of judges. The problem continues as this interesting article from the Atlantic makes clear. Barring a change in the political winds (which remain unclear in their direction) the problem seems likely to persist. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News All Risk Insurance Policy Does Not Cover Restaurant From Covid Loss (PA) April 8, 2022 < Back Share to: In a recent case from the Eastern District of PA, Humans & Res., LLC v. Firstline Nat’l Ins Co., the court granted the defendant’s summary judgment against the plaintiff who sought coverage under an all-risk property policy. Finding that COVID-19 related loss did not fall under an all-risk property policy and did not give rise to the expectation that it would. The plaintiff in the case owned a BYOB restaurant. The Pennsylvania Governor instituted a stay-at-home order in response to the COVID-19 pandemic. The large establishment was limited to takeout and delivery. In response the plaintiff owner chose not to provide take out and delivery options. The plaintiff argued that since the chose not to offer carryout or delivery, the orders caused the restaurant to lose revenue and suffer business income losses. The plaintiff filed a declaratory judgment that the business losses it incurred due to the closure orders were covered under the policy. The court found in favor of the defendant finding that the Insurance policy does not cover the losses caused by COVID-19. The plaintiff then cross moved on the grounds that they believed the “all risk policy included coverage for business losses suffered in the event of a business interruption.” The defendant moved to dismiss the claims based on the policy did not extent to pandemic-related closure. Additionally, the policyholder specifically did not request coverage for global pandemic related closure. The court further explained that all-risk policies do not create an objectively reasonable expectation of coverage of all losses, especially where the policy’s coverage is limited by exclusions. This case is a good example of how a policy language can dictate the outcome even in an all-risk policy. Although mostly related to COVID-19 damages an all-risk policy will still be confined to a general coverage area with limits. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Valuation Of Property In Court’s Purview Says Pennsylvania Court May 19, 2017 < Back Share to: Pennsylvania court holds that a dispute over the value of property, for purposes of insurance coverage, is a material fact that must be settled by the court. In Brown v. Everett Cash Mut. Ins., the insureds’ home was totally destroyed by a fire. Following the loss, the insurer, based on an investigation conducted by its adjuster, issued the insureds a reimbursement check for the replacement cost of the property less depreciation. The insureds refused to sign the check, and ultimately commenced a lawsuit against their insurer claiming, inter alia, they were entitled to the full replacement value of the property (as opposed to the actual cash value, which was paid by their insurer). Eventually, the insurer moved for summary judgment, which was granted by the lower court. On appeal, the Pennsylvania Superior Court concluded that given the “rather large discrepancy” between the insureds’ and the insurer’s value of the property, this discrepancy gave rise to a material fact that only the trial court could address. As such, the Pennsylvania Superior Court concluded the lower court improperly granted summary judgment on this issue. Consequently, this case suggests that an undefined “large dispute” over the value of a claimed loss could act as bar to an insurer prevailing in a motion for summary judgment, as a Pennsylvania court may deem this to be a genuine issue of material fact. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact