News Guilty Plea Not Necessarily Proof of Liability For Civil Suit (NY) August 9, 2012 < Back Share to: In Maiello v. Kirchner, the Second Department was asked to determine whether a defendant was collaterally estopped from contesting liability in a civil matter where he entered a conditional plea of guilty to an assault charge, but that plea was later vacated. On the day of the incident, the defendant went to the plaintiff’s house to speak with his estranged wife, who happened to be dating the plaintiff at the time. A confrontation ensued when the defendant tried to get in the door, so the plaintiff picked the defendant up and placed him on the front of the porch, where the defendant lost his balance. The defendant then reached out and grabbed the plaintiff, pulling him off the porch and causing substantial injuries. The defendant subsequently pled guilty to assault in the third degree on the condition that upon completion of probation, the plea would be vacated and the charge would be amended to harassment in the second degree. The defendant completed the probation, the assault charge was vacated, and the charge was amended. In his civil action against the defendant, the plaintiff moved for summary judgment arguing that based on his guilty plea to assault, the defendant was collaterally estopped from contesting liability. A party may invoke the doctrine of collateral estoppel to prevent a party from contesting liability where the criminal conviction is based upon facts identical to those in issue in a civil action. The party seeking benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior action, and is decisive in the present action. The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination. The Supreme Court found that the defendant’s plea estopped him from contesting liability, but the Second Department disagreed. It found that although the defendant’s plea involved the identical issue in the civil proceeding, liability was not decided because a conditional plea was not a final judgment. Rather, when a defendant enters a conditional plea, sentencing is adjourned. The court further found that the defendant’s plea to harassment did not estop him from contesting liability because he did not have a full and fair opportunity to contest liability. It reasoned that the defendant did not have the same incentive to contest the charge against him because harassment was a nonviolent violation. Thanks to Gabriel Darwick for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com   Previous Next Contact

News This New Year, Perhaps Tell Your Personal Trainer to "Butt Out" January 4, 2013 < Back Share to: Many of us have already begun the annual pilgrimage back into crowded gyms with the intent to follow through on New Year's resolutions. But if you're looking for a personal trainer to help guide you on your path to personal fulfillment, it may be a good idea to make sure he or she does not instead set you on a path to pain. In a split decision, the Appellate Division, Third Department, has ruled that where a gym patron suffered a back injury while performing a squat exercise pursuant to a personal trainer's written instructions, a jury should generally decide whether the patron assumed the risk of injury. Under the well-settled doctrine of assumption risk, a person who voluntarily participates in a recreational activity is deemed to have assumed the inherent risks of that activity. Plaintiff Dianne A. Layden took part in a personal training session at a fitness center with a personal trainer, defendant Angela Plante. Prior to her training session, plaintiff advised Ms. Plante that she had a history of back problems. Ms. Plante supervised plaintiff's training session, and provided her with written instructions on how to repeat the exercises independently. Plaintiff returned to the gym days later, and attempted to perform a weight-lift move known as a "Smith squat," as described in the written instructions. While performing the maneuver, plaintiff experienced back pain, which thereafter required surgery to correct two herniated discs. Plaintiff commenced a lawsuit against the trainer, and the owner of the fitness center. The defendants each moved for summary judgment based on the doctrine of assumption of risk. The Third Department reversed the trial court's decision granting the defendants summary judgment, and ruled that a jury should decide whether plaintiff assumed the risk of injury when attempting to perform the squat exercise. The court noted that the application of the assumption of risk doctrine is typically a question of fact best resolved by a jury. Specifically, the majority found that the plaintiff raised a question of fact as to whether the trainer's potentially misleading directions "unreasonably heightened the risks to which [plaintiff] was exposed." Plaintiff's experts testified that the trainer improperly instructed plaintiff to "stick her butt out" while performing the squats. Instead, plaintiff's experts averred that a person should maintain a straight back when performing Smith squats. So this New Year, instead of assuming that your personal trainer will prevent you from getting injured, you may wish to simply tell him or her to "butt out" of your workout. Layden v. Plante, 2012 WL 6698873, 2 (3d Dept. 2012). http://www.nycourts.gov/reporter/3dseries/2012/2012_09126.htm Many thanks to Steve Kaye, Jr. who assisted with this post.   Previous Next Contact

News Whether Belief In Non-Liability Is Reasonable Question For Jury June 11, 2009 < Back Share to: In Preferred Mutual Insurance Co. v. New York Fire-Shield, the Third Department analyzed the timeliness of notice provided by an insured. First, the court recognized that timely notice was still required under general liability and excess policies, and that notice made two years after the insured was aware of a possible claim would ordinarily be late. However, the court held that a reasonable belief in non-liability would excuse untimely notice, and it was for a jury to determine whether the insured’s belief was reasonable. http://decisions.courts.state.ny.us/ad3/Decisions/2009/505847.pdf Previous Next Contact

News Prominent Art Gallery Alleges It Was Sued for “Buyer’s Remorse” (NY) August 23, 2016 < Back Share to: A recently filed suit by art dealer Fabrizio Moretti claims art dealer David Zwirner engaged in “chicanery” and played a game of “three-card monte,” regarding the sale of a sculpture titled Gazing Ball (Centaur and Lapith Maiden) by artist Jeff Koons, pictured below. The work of art was initially marketed by Zwirner in 2013 as Edition 1 of 3 (plus an artists’ proof). In June 2014, Moretti contracted with Zwirner’s gallery to purchase #2 of 3 in the sculpture set for $2,000,000. According to the complaint, Zwirner promised Moretti the sculpture would be delivered within a year after signing the purchase agreement. Moretti alleges his sculpture was completed in April 2015, but was misidentified as “3/3.” Moretti claims Zwirner knew the work was mislabeled, but did not attempt to correct the mistake because Zwirner wanted to sell the work as the third and final part of the set at public auction. In May 2015, #3 of 3 was listed at Sotheby’s in New York, but failed to fetch the estimated $1.8–$2.5 million listing price. According to Moretti, this failed auction heavily damaged the overall value of Koons’ work. After waiting over two years for #2 of 3, Moretti advised Zwirner it was cancelling the contract and he requested his money for the sculpture be returned. When that didn’t happen, Moretti filed suit seeking $6 million in damages, and alleging violations of New York Arts and Cultural Affairs Law, breach of contract, breach of warranties, and fraud. Zwirner swiftly moved to dismiss the complaint in lieu of answering based on CPLR 3211(a)(1) and (7) for failure to state a claim and documentary evidence. According to Zwirner, there was no breach of contract because the purchase agreement did not contain any deadline for completion, and Moretti was required to provide notice before claiming a breach. According to Zwirner, Moretti continued to make payments on the sculpture, showed interest in having it delivered, and only now seeks to cancel the contract because he “lost interest” in the work. It will be interesting to see whether the court grants Zwirner’s motion to dismiss. Here, it does seem there was some “chicanery” on both sides. Moretti likely was sold on the exclusivity of Koons’ work based on the artist’s relationship with the Zwirner Gallery and the exhibition materials provided to Moretti by Zwirner. The catalogue clearly states that Gazing Ball is Edition 1 of 3 (plus artist’s proof). Yet, Moretti claims there are at least five casts of the sculpture (with more on the way), and Moretti would not have made his original purchase if all of this information was disclosed. In the world of fine art, owning a specific piece of art from a set can drastically increase the work’s overall worth because of its exclusivity. Yet, according to Moretti, Zwirner ignored this exclusivity premium by attempting to sell additional sculptures as “prototypes.” On the other hand, there is substance to Zwirner’s claims that Moretti is simply having “buyer’s remorse.” Why would Moretti continue to make payments on the purchase agreement without requesting a deadline for the completed work? Why would Moretti inquire with Zwirner about potential resale values for Koons’ work a couple months before attempting to rescind the contract? Moretti may have determined the subjective interests that drive the art world no longer favored Koons’ work (e.g., the failed Sotheby’s auction). Upon seeing the decline in interest for similar sculptures, Moretti may be trying to hedge his bets since the sculpture was never delivered. Either way, it’s a case that we will keep an eye on because it can have profound effects on how art galleries transact business with each other. Thanks to Dan Beatty for his contribution to this post. If you have any questions about this post, please call or email Brian Gibbons at Brian Gibbons for additional information. Previous Next Contact

News WCM Partner Bob Cosgrove to Speak at IUA London Event on COVID and Insurance. May 15, 2020 < Back Share to: WCM Partner Bob Cosgrove is set to speak at the International Underwriting Association of London on May 20 for a seminar entitled COVID 19: It’s Wreaked Havoc on Social Life and the Economy. Is Insurance Its Next Target in the US? For more information about the seminar, see this IUA flyer. The seminar which look at such things as: * Business income claims under a property policy -- How presented? -- Physical loss? -- ISO Virus exclusion? -- Pollution exclusion? * Business income and liability claims under a CGL policy -- How presented? -- Property damage? -- Negligence? * Policyholder attacks -- Ambiguous wordings -- Inconsistency in claims handling -- Reasonable expectations * Legislative and public policy COVID concerns * Suggested responses -- Reserve or disclaim? -- Request for information? -- Outside adjusters? * Litigation -- Class action/MDL -- Ripeness -- Precedents The seminar will be conducted along with WCM friend André C. Gaudin, a Louisiana based partner at Burglass Tankersley, LLP and Joseph D. Zopolsky, a Texas based partner at Glast, Phillips & Murray. While we can't guarantee room at the IUA event, if you have interest for your company, just reach out to Bob. Previous Next Contact

News Hockey Player Assumed Risk of Injury in Fight (NY) December 14, 2018 < Back Share to: Rodney Dangerfield once joked: “I went to a fight the other night, and a hockey game broke out.” But unlike Rodney, law and common sense received plenty of respect in Falcaro v American Skating Ctrs., LLC (2018 NY Slip Op 08469). There, a hockey player was injured during an in-game fight during his amatuer league game, after a referee had pulled him off the pile. In his lawsuit against the arena and others, the plaintiff claimed it was customary for fights to stop when a referee became involved. Nevertheless, he kept on fighting and was injured. Recognizing that a sports participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport and generally flow from such participation,” the court granted the defendants’ motion for summary judgment. According to the court, the risk of involving oneself in an ongoing fight were inherent in the risks of ice hockey and “perfectly obvious.” The trial court actually denied the defendants' summary judgment motion, but on appeal, the 2nd Dept. reversed, citing the primary assumption of risk doctrine. So instead of a verdict in his favor, the plaintiff will have to settle for a 5-minute major. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions.       Previous Next Contact

News Clarification of insurer’s burden on defense for material misrepresentations. February 23, 2009 < Back Share to: In Rafi v. Rutgers Cas. Ins. Co., the insurer declined to pay insured's claim for losses due to material misrepresentations made by the insured. The insured filed a breach of contract action and, following a jury trial, judgment was entered in favor of the insured. On appeal, New York’s Appellate Division, Fourth Department, ruled that the trial court committed reversible error by charging the jury that the insurer was required to prove that the alleged misrepresentations were intentional. The appellate court held that, if a misrepresentation is material, it can void a policy regardless of the insured’s intent. In order to prevail on a material misrepresentation defense, an insurer is required to submit evidence that it would not have issued the same policy had the correct information been included in the application. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00905.htm Previous Next Contact

News Museum Vandalism: A Concern for Art Insurers? August 16, 2011 < Back Share to: Although, unlike with stolen art, there is not a database setting out acts of fine art vandalism, according to the Washington Post, vandalism is a big problem -- especially at museums. The problem is that the viewing public's right or desire to see unprotected works conflicts with the best possible security options available to museums. The conflict is unlikely to go away anytime soon, but should be considered by fine arts underwriters. For more information about this post or WCM's fine arts practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Self-Serving Affidavit Insufficient to Defeat Change of Venue Motion In NY December 6, 2012 < Back Share to: In Fischel v. Zarkowky, the defendants, based in Rockland County, New York moved to change venue of the action from Kings County to Rockland County. Plaintiff designated Kings County as the venue for the action based on his residence. In support of their motion, the defendants produced copies of internet telephone directories indicating that the plaintiff had two phone numbers listed in Rockland County. Moreover, a Kings County phone directory search yielded no listings for the plaintiff. The defendants also submitted a certified copy of the Rockland County Board of Elections Registration report indicating that the plaintiff resided in Rockland County. The plaintiff voted in Rockland County every year since 1994. In opposition the plaintiff submitted an affidavit stating he had been a Kings County resident prior to commencing the action and a copy of his driver's license issued prior to commencement of the action, which listed his Kings County address. The court held that self-serving affidavits are insufficient to establish residence at the time the action was commenced. While the plaintiff submitted a driver license, he did not submit any other documents evidencing his Kings County residence, such as a lease, tax returns or bills. Therefore, venue was improper in Kings County and the case was transferred to Rockland County. Thanks to Maju Varghese for his contribution to this post. Previous Next Contact

News Florida Adopts The Apex Doctrine September 17, 2021 < Back Share to: Defendants have long complained about the bullying associated with abusive discovery, especially that of high-level corporate employees. Under the “Apex Doctrine,” high-level government and corporate employees are entitled to protection from deposition where the party opposing the deposition generally shows that; the witness lacks unique, first-hand knowledge of the facts at issue; and that other, less intrusive means of discovery have not been exhausted. In adding Rule 1.280(h) to Florida’s Rules of Civil Procedure, Florida’s Supreme adopted the “Apex Doctrine.” New Florida Rule of Civil Procedure 1.280(h) reads: A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition. In re: Amendment to Fla. Rule of Civ. Procedure 1.280, 2021 Fla. LEXIS 1395 | 2021 WL 3779161 (Fla. August 26, 2021). Fla. R. Civ. P. Rule 1.280(h) does not replace Rule 1.280(c)’s protections against abusive discovery; it is an alternative to Rule 1.280(c). New rule 1.280(h) is an alternative to rule 1.280(c) for use in the limited context of depositions of high-level government and corporate officers. The new rule is not governed by the ‘good cause’ standard of rule 1.280(c), and it imposes burdens of production and persuasion that are distinct from the burdens at play in rule 1.280(c). Government and corporate officers who cannot meet the new rule’s requirements, or who choose not to try to, remain free to seek relief under rule 1.280(c). Id. The amendment is effective immediately, although the court did give interested parties 75 days to comment. Please contact Charles "Chip" George with any questions. Previous Next Contact

News Injuries Sustained During Police Officer's Hot Pursuit Placed On Ice (NY) July 20, 2018 < Back Share to: In order to succeed on a premises liability claim for negligence based upon a defective or dangerous condition, a plaintiff must show that the dangerous condition either was created by the defendant or that the defendant had either actual or constructive notice of the defective condition. There is a large body of case law on what will constitute constructive notice and how it (or the lack of it) must be established. Recently, the Second Department weighed in on this issue. In Palladino v Monadnock Construction, the plaintiff was a former police officer who claimed he was injured when he fell on the site of a construction project while pursuing robbery suspects. He claimed that he tripped on “construction debris” and sued the general contractor alleging causes of action for the negligence and violations of General Municipal Law § 205-e. The defendant moved for summary judgment and the Supreme Court denied the motion, and the defendant appealed. The Appellate Division, Second Department, reversed the lower court’s decision denying summary judgment and found that the general contractor demonstrated its prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action by establishing that it did not create or have actual or constructive notice of any dangerous condition on the premises. The construction manager testified that inspections of the subject area performed prior to the accident did not reveal the existence of any dangerous conditions. Plaintiff testified that he did not see any debris, and at his deposition he could not identify the alleged debris or describe it. Based upon this testimony, the Appellate Division found that plaintiff had failed to come forward with sufficient evidence to raise a triable issue of fact as to the existence of a dangerous condition created by the defendant, or of which the defendant had actual or constructive notice. As to the GML § 205-e claim, the Appellate Division found that defendant had established its entitlement to judgment as a matter of law dismissing those claims as well. The defendant established that the cited regulations pertaining to public streets and sidewalks cited by plaintiff did not apply, since the area in question was closed to the public during the construction, including at the time of the plaintiff’s accident, and also demonstrated that it did not violate any of the remaining statutes and regulations cited by the plaintiff. The plaintiff failed to raise a triable issue of fact in opposition. Thanks to Jorgelina Foglietta for her contribution to this post. Please email Vincent Terrasi with any questions. Previous Next Contact

News Barking Up The Wrong Tree: Court Grants Owner Summary Judgment For Dog's Accident December 12, 2013 < Back Share to: Typically, lawsuits involving dogs arise out of dog bites. But a more unusual scenario arose in Buicko v Neto, where a dog running loose in the street caused an accident and the injured party sought to have the dog's owner held liable. The defendants’ installed an invisible fence along the boundary of their property intended to allow their dog, Dudley, free to explore. The dog was fitted with a collar that provided a small electric shock when the dog ventured too closely to the underground “fence.” One day, plaintiff rode her bicycle past defendants’ home and noticed Dudley barking and zigzagging along the front boundary of the property. Apparently, the invisible fence didn't provide much of a deterrent, as plaintiff alleged Dudley bolted from defendants’ yard directly in the path of her bicycle causing her to inadvertently strike the dog and fall. The trial court awarded the homeowner's summary judgment, and the Appellate Division, Third Department, affirmed the dismissal finding that plaintiff submitted insufficient evidence to demonstrate that the defendants were liable. Similar to a dog bite case, the found that the owners needed to be on notice of a propensity for similar conduct. While recognizing that the propensity could include “a dog’s habit of chasing vehicles or otherwise interfering with traffic” and thus endangering people’s safety, the court found that there was no evidence that Dudley had a history of chasing bicycles or interfering with traffic. A dog’s propensity to bark at traffic and run around a yard was deemed insufficient to raise a question of fact regarding the homeowner's notice for the dog's conduct here. Thanks to Steve Kaye for his contribution to this post. Previous Next Contact