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News NY Appellate Court Upholds Life Insurance Denial for Material Misrepresentation (NY) December 6, 2019 < Back Share to: In Neiditch v. William Penn Life Ins. Co. of N.Y., the Appellate Division, Second Department, addressed the issue of when an insurance policy may be rescinded for material misrepresentation on a summary judgment motion. The case involved a dispute over life insurance. The plaintiff was the named beneficiary under the policy and sued the insurer to recover the $1 million benefit under the life insurance policy after the decedent died from an anaphylactic reaction to a food allergen. The defendant insurer denied coverage, arguing that the policy should be rescinded because the decedent’s application for the policy contained a material misrepresentation with regard to the decedents prior medical history. The trial court agreed with the insurer and dismissed the case on summary judgment. On appeal, the Appellate Division considered the issue with particular attention to whether material misrepresentation was a question of law or fact. “Ordinarily,” the court found, “the question of materiality of misrepresentation is a question of fact for the jury. However, where the evidence concerning the materiality is clear and substantially uncontradicted, the matter is one of law for the court to determine”. The Second Department affirmed the trial court's decision and held that the insurer was entitled to summary judgment and that the policy was properly rescinded due to material misrepresentation, since the record was clear that the decedent did not disclose information about his prior hospitalizations for anaphylactic reactions. The decision serves as a reminder to both insureds and insurers about the gravity of material misrepresentations on insurance applications. Where the record shows a clear misrepresentation, courts will not hesitate, even on dispositive motions, to uphold policy rescissions. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Coverage Found For Subpoena Response in Sex Abuse Case (NY) March 12, 2013 < Back Share to: In the last decade, sexual abuse scandals have rocked many religious and educational institutions. Several revered public figures have fallen with a thud from the lofty pedestals upon which they were perched. Beyond the moral failings and public relation disasters, more mundane questions arise such as who pays for the expensive investigations that arise after those claims become public? Syracuse University found itself embroiled in such an alleged scandal in the fall of 2011. Two young men claimed that they were sexually abused by Associate Men’s Basketball Coach Bernie Fine during the course of his employment with the University. Complying with its contractual obligations, the University gave written notice to its insurer, National Union, of a media report publicizing those claims. After numerous subpoenas were issued to the University in connection with state and federal investigations, the University provided copies of the subpoenas to National Union which denied any obligation to pay the costs of responding to those subpoenas. According to its motion papers, the University “expended millions of dollars in legal defense fees and costs to investigate and respond to the Subpoenas.” Under the “Not-For-Profit Protector” policy issued by National Union on a “claims made” basis, the insurer agreed to “pay on behalf of [Syracuse University] loss arising from a claim first made against [Syracuse University] during the policy period…for any actual or alleged wrongful act of [Syracuse University]. The term “claim” included: (1) a written demand for monetary, non-monetary or injunctive relief; or (2) a civil, criminal, administrative, regulatory or arbitration proceeding for monetary or non-monetary relief which is commenced by: … (ii) return of an indictment, information or similar document (in the case of criminal proceeding)…” The key issue was whether the grand jury’s investigations and subpoenas constituted a “written demand for... non-monetary relief” or a criminal proceeding for non-monetary relief commenced by the “return of an indictment, information or similar document (in the case of criminal proceeding).” Ruling in favor of Syracuse University, the court held that the subpoenas' demand for the production of documents and testimony qualified as a written demand for “non-monetary” relief. Further, the grand jury’s investigations also qualified as a “criminal proceeding” for non-monetary relief, triggering the insurer’s duty to defend Syracuse University. The continuing saga involving Syracuse University and its Associate Coach Bernie Fine may be near a close but we suspect that the insurance coverage dispute is far from over. Stay tuned for updates on any appellate activity. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News No Notice - No Claim Against City (NY) March 20, 2013 < Back Share to: Notice is key in order to maintain a viable claim against the City of New York for failure to adequately maintain a sidewalk. In Adamson v. The City of New York, following a motion for summary judgment, the trial court dismissed the plaintiffs’ complaint and all cross-claims asserted against the City. The tenant of the property abutting the sidewalk (Verizon) appealed the courts order. The record revealed that the City did not have prior written notice of the defective sidewalk condition, as required by Administrative Code § 7-201[c][2], and Verizon failed to demonstrate that the special use exception applied to overcome the prior written notice requirement. As a result of the City not having notice of the alleged dangerous condition, there was no basis for holding the City liable. The Appellate Division, First Department, upheld the lower court’s ruling dismissing Verizion’s cross-claim against the City on the theory that the City failed to provide adequate lighting. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News Seeing Dollar Signs, A Man Delivers Previously Stolen Warhol Painting To Christie's To Sell February 6, 2008 < Back Share to: After allegedly buying Andy Warhol's 1981 Dollar Sign painting at a New Jersey flea market for $180, Jason Beltrez brought the painting to Christie's auction house to sell. Christie's checked with the Art Loss Register and determined the painting had been stolen from Martin Lawrence Galleries in SoHo on February 14, 1998. The battle now begins as the art gallery is suing Mr. Beltrez for ownership. http://www.nytimes.com/2008/02/06/nyregion/06warhol.html?_r=1&scp=2&sq=warhol&st=nyt&oref=slogin Previous Next Contact

News Scooter Lessor Off the Hook for Incident at County Fair in NY January 23, 2013 < Back Share to: In Couture v. Miskovitz, the plaintiff complained that she was struck by a motorized scooter operated by defendant Miskovitz. Miskovitz had rented the scooter from defendant Stillwater Ramps and Mobility Center and was operating the scooter at the county fair at the time of the accident. Defendant Dutchess County Agricultural Society owned the premises. The lower court denied Stillwater's and Dutchess County's motions for summary judgment. In reversing the lower court's decision, the Second Department held that Stillwater was entitled to summary judgment because it was not vicariously liable for Miskovitz' actions pursuant to Vehicle and Traffic Law 388. Specifically, the fact that the scooter was not operated on a public highway relieved Stillwater from vicarious liability. Moreover, Stillwater demonstrated that it was not negligent in maintaining the scooter, entrusting the scooter to Miskovitz or in training him how to use it. The Court also held that Dutchess County was entitled to summary judgment because it did not have the ability or opportunity, through the exercise of reasonable measures, to control Miskovitz's actions. Thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Computer Program Not Subject to Product Liability Regulations (NJ) June 21, 2019 < Back Share to: New Jersey utilizes a tool to assess risk in the context of pre-trial release and bail conditions, pursuant to the New Jersey Criminal Justice Reform Act. Specifically, as outlined by presiding Judge Rodriguez, “the statute expressly requires courts, when making pretrial release decisions, to impose pretrial conditions that will reasonably assure: (1) the defendant's appearance in court when required, (2) the protection of the safety of any person or community, and (3) that the defendant will not obstruct or attempt to obstruct the criminal justice process.” Where this gets interesting is that the Courts utilize a Public Safety Assessment tool (“PSA”) to solve these issues in a data drive format. The PSA is not available commercially. In Rodgers v Laura and John Arnold Foundation (D.N.J. June 11, 2019), the Court is deciding whether this PSA is subject to strict liability pursuant to the New Jersey Products Liability Act. Specifically, the Courts utilizes the PSA here, and the PSA advised to release an alleged criminal wrongdoer prior to trial, and that same alleged criminal wrongdoer 3 days later allegedly murdered a third party, Rogers. Rogers’ next of kin brought this action, alleged that the PSA tool developed by the Laura and John Arnold Foundation is defective and caused Rogers’ death. The Court determined that the PSA was not a “product” as it was not distributed commercially. Indeed, the PSA was developed by a non-profit and, in essence, merely utilizes broad swathes of information in a data driven method to ascertain risk in releasing an arrested individual prior to trial. The Court indicated the lack of commercial availability – or being “for sale”- was fatal to claiming a violation of the NJ Products Liability Act. The Courts continue to show reluctance to imposing strict liability on technological systems that merely collect data and crunch that data to show some sort of result. Thanks to Matthew Care for his contribution to this post. Please contact Georgia Coats if you have any questions. Previous Next Contact

News Call Your Next Witness - Ross Mallor of PM Legal September 15, 2021 < Back Share to: On today's episode of the Call Your Next Witness podcast, we welcome Ross Mallor of PM Legal. Ross is a true entrepreneur in the litigation arena in the northeast United States. Since joining his father at PM Investigations, now PM Legal, the company has grown from a 2-person investigation company into a 200+ employee company, which conducts investigations for both plaintiffs and defendants, provides litigation support, handles service of process and court filings, and is also now affiliated with elaw and Lexitas. Ross takes advantage of technological innovations, keeps an open mind about new opportunities, and most importantly, listens to his clients. Aside from that, Ross is a fantastic storyteller, and in this interview, relays some great stories about his business practices over the years, a few about conducting surveillance, and even one about playing poker with actor Kevin Pollack. (This story is worth the price of admission.) For more information about Ross's company, check out PMLegal.com Listen to my interview with Ross here: https://lnkd.in/ejnHZK8k -- or search for Call Your Next Witness wherever you download podcasts. If you are interested in being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Beware the Slippery Slope: Carbon County, PA awards highest ever verdict in wrongful death suit involving a ski resort February 11, 2016 < Back Share to: On November 9, 2015, a jury in Carbon County, Pennsylvania awarded 1.2 million dollars to Patricia Bortz, the widow of Victor Bortz, an excavation truck driver who died while performing work on a ski slope expansion project. The verdict, in Bortz v. Tuthill, is the highest ever reported in Carbon County. Plaintiff Victor Bortz was driving an articular hauler up the ski slope at Blue Mountain Ski Resort, owned by the Tuthill Corporation. Bortz was working as part of an excavation crew and was instructed to ascend up a twenty-five foot ski hill in a hauler. After Bortz dropped of the soil, he backed off the hill down into a thirty foot embankment and was thrown from the vehicle. Bortz, his co-worker and his boss had all expressed concern about the steepness of the hill prior to attempting the drive. In fact, Bortz described his anxieties over the radio while he was driving the hauler right before his death. The plaintiff argued that the grade of the slope exceeded the reasonable standards for the industry. However the key issue in the case was whether Tuthill exercised sufficient control over Bortz’s work to be held liable as proper owner. In this case, the jury felt that directing the type of truck and how much dirt to move was sufficient to establish control. This case will be useful in the cannon of Pennsylvania cases determining extent of ownership and control. Thanks to Remy Cahn for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

Nishall N. Jairam Counsel Florida njairam@wcmlaw.com 561 231 2684 Professional Experience As a seasoned insurance attorney with more than two decades of experience, Nishall represents insurers in first‑party property and complex insurance matters. Over the course of his career, Nishall has handled cases from their initial stages through final resolution, developing a reputation for steadiness under pressure and meticulous in execution. His practice encompasses residential and commercial property claims, assignment‑of‑benefits disputes, coverage issues, and high‑exposure litigation, requiring both legal precision and practical problem‑solving. Throughout his career, Nishall has worked closely with claims professionals, consultants, and experts, valuing collaboration as an essential part of effective advocacy. He understands that insurance litigation is not just about winning motions or defending depositions, but about managing risk, controlling costs, and aligning legal strategy with business objectives. His approach emphasizes clear communication, realistic evaluations of exposure, and measured decision‑making. Qualities that reflect his belief that patience, when paired with experience, leads to sound judgment. What distinguishes Nishall is his ability to remain composed and focused even in contentious, high‑stakes environments. He brings a balanced perspective shaped by years of courtroom experience, negotiations, and client counseling. Rather than reacting to conflict, he approaches each matter with patience and foresight, understanding that the best outcomes often come from restraint, preparation, and timing. Outside of the technical aspects of the law, Nishall views his work as a responsibility to bring clarity to complex situations. Whether advising on litigation strategy, evaluating coverage issues, or resolving disputes, he strives to be a steady presence for clients navigating uncertainty. His career reflects a commitment to professionalism, integrity, and the belief that patience—applied consistently over time—is not only a virtue, but a lasting advantage. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., St. John’s University School of Law B.S. in Management, St. John’s University, cum laude Bar Admissions Florida New York

News Which County You Buy In Matters for Venue (PA) June 1, 2017 < Back Share to:   The Superior Court of Pennsylvania recently affirmed the Philadelphia Court of Common Pleas’ decision to grant defendants’ preliminary objections in Faust v. BMW et al. The plaintiff, Max Faust, was a passenger in a motor vehicle accident in Lancaster County, and suffered injuries when his airbag deployed. He sued the vehicle’s manufacturer, BMW, its subsidiaries, and the dealer that sold the vehicle, N&H, LLC. The defendants filed preliminary objections asserting that Philadelphia was an improper venue for the suit. The trial court granted the objections and Faust appealed. In cases involving multiple defendants, if venue is proper for at least one defendant, then it is proper for all defendants. In Pennsylvania, venue is proper in any county where a defendant regularly conducts business. Courts use a quality-quantity test to see if a defendant regularly conducts business in a county. Quality of contacts will be found if the acts are essential to an entity’s objective and existence. Acts that merely aid a main purpose but are not essential to a business’s survival are collateral and will not suffice. Mere solicitation of business in a county does not amount to an essential act by a business. Faust pointed to numerous acts that BMW performed as evidence that it regularly conducts business in Philadelphia, including mailing advertisements, holding events, radio advertisements, attending the Philadelphia Auto Show, and having numerous customers who live in Philadelphia. The trial court found that BMW’s main objective was the sale and/or lease of its vehicles. The court then found, which the Superior Court agreed with, that nearly every piece of conduct that Faust pointed to in the record was merely solicitation in Philadelphia. In fact, the court noted that Faust provided no evidence that any vehicle sales or leases were ever consummated in Philadelphia. In addition, the court disagreed with Faust’s assertion that because Philadelphia residents purchased BMW’s that venue was proper. The court, instead, stated that the purchase of goods or services in one county by residents of another is insufficient to establish venue in the purchaser’s home county. This case highlights the importance of analyzing exactly where goods and services were purchased in a case in order to determine proper venue. By carefully looking at where a plaintiff or party purchased something and where a business regularly conducts business, a defendant can have a case transferred to or kept in a more defense friendly jurisdiction. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Heads Up: Lacrosse Player Injured During Drill (NY) March 2, 2018 < Back Share to: In Tauro v. Gait and Syracuse University, Plaintiff, a varsity womens' lacrosse player at Syracuse University, was struck in the head with a lacrosse ball thrown by her coach , allegedly negligently. Plaintiff was injured during a ground ball drill, and plaintiff said she was unprepared to receive the hard, overhand pass that struck her in the head. Defendants moved to dismiss the complaint on the grounds that a waiver signed by plaintiff established a complete defense to the allegations, and that the complaint failed to state a cause of action because plaintiff assumed the risk of injury. In the waiver, plaintiff agreed that she was “fully aware ... that ... participation [in lacrosse] involves risk of injury ....” She further acknowledged in the waiver that she accepted, and assumed all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others. The trial court denied the summary judgment motion. The Appellate Division, Fourth Department, upheld the lower court’s decision because they ruled the defendant’s actions did not fall within the assumption of the risk doctrine for sports. The court held that defendant’s actions were totally inconsistent with the drill and as such, throwing the ball toward her head was grossly negligent and extremely reckless. The conditions caused by the defendants' negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the activity. As such, the waiver signed by the plaintiff was not valid due to the gross negligence of the coach’s action. Syracuse University’s Women’s Lacrosse Team is nationally ranked. Gary Gait, the defendant, is still the coach of the team. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Court Denies Discontinuance Request Due to Improper Venue (NY) May 27, 2016 < Back Share to: A recent decision dealt with an interesting tactical issue and the consequences for filing in the wrong venue. In Marinelli v Wimmer, plaintiff filed a personal injury case in Kings County Supreme Court (which is Brooklyn - a plaintiff friendly venue). However, the defendants contended venue was not proper because plaintiff no longer lived at the address as pleaded in the complaint and moved to change venue to Suffolk County. In response, the plaintiff filed a cross-motion for leave to discontinue the case without prejudice if the Court granted the motion to change venue. Plaintiff intended to re-file the action in Kings County, and plead a different Brooklyn address. The Kings County Supreme Court issued a decision changing venue to Suffolk County, and denying the plaintiff’s cross-motion to discontinue. The plaintiff filed an appeal to the Second Department Appellate Division, admitting that venue was not proper in Kings County, but arguing that his cross-motion to discontinue should have been granted by the trial court. The appellate decision held that an application to discontinue should generally be granted; however a plaintiff is not entitled to this relief as right, but with the sound discretion of the court. A court should not grant a motion to discontinue when “the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results.” Applying these principles, the Court found that the Kings County Supreme Court providently exercised its discretion in denying the plaintiff’s request for leave to discontinue, since the request was improperly sought to avoid the consequences of the Court’s decision to change venue to Suffolk County. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact