News If You Don’t Ask For A Promotion, There Is No Discrimination October 26, 2009 < Back Share to: In Beebe v. New York Times, 09-cv-1090, New York Eastern District Judge Weinstein dismissed an age discrimination claim against the New York Times by two workers who were denied a promotion, allegedly bades upon their age. The main problem with their case, however, was that they never applied for the promotion. Judge Weinstein noted that required element of discrimination against an employer. One element is that the plaintiff applied for the job. In the case, neither employee applied for the promotion, even though each saw the job announcement. Therefore, the complaint for discrimination was dismissed. If you would like more information regarding this post, please email dtavella@wcmlaw.com . Previous Next Contact

News Eastern District of PA Finds No Duty to Defend or Indemnify (PA) June 12, 2020 < Back Share to: In Leithbridge Company v. Greenwich Insurance Company, the insured commenced a declaratory judgment action, in the Eastern District Court of Pennsylvania, against its insurer, Greenwich Insurance Company, for a declaration that it was owed defense and indemnification for an underlying lawsuit. By way of brief background, in the underlying action, it was alleged that the underlying plaintiffs bought a house through the insured. It was further alleged that prior to closing, they received a fraudulent email purporting to be from their title company instructing them to deposit the balance of the purchase money and closing costs. The underlying plaintiffs deposited the funds and subsequently learned of the fraudulent nature of the email. The underlying plaintiffs thereafter brought an action against the insured, alleging the insured “was negligent in safeguarding their personal information, and that because of that negligence, ‘the confidential personal and transactional information of the plaintiffs fell into the hands of scammers, who were thus enabled to perpetrate a fraud upon plaintiffs and steal their purchase money.’” The insured had a Real Estate Professional Errors and Omissions Policy with Greenwich that covered “an act or omission ... in the performance of real estate services”. The insured’s claim for coverage was denied by Greenwich. In the declaratory judgment action, Greenwich argued no coverage existed under the policy pursuant to an exclusion that stated, in relevant part, Greenwich need “not defend or pay any claim: ... based on or arising out of ... the conversion, commingling, defalcation, misappropriation or improper use of funds or other property …”. The insured argued that the exclusion did not apply considering the underlying complaint sounded in negligence and not the underlying conversion. Thus, the insured argued, the court need only consider whether the alleged conversion constituted a “breach of duty.” The Court rejected the insured’s argument stating that when determining whether coverage existed, the manner in which the plaintiff framed its claims was not determinative. The Court further held that the alleged conversion was central to the underlying plaintiffs' negligence claim considering, without the alleged conversion, there would have been no breach of duty. As such, the Court concluded that the exclusion applied because the underlying plaintiffs' loss arose from the alleged conversion. This case illustrates the notion that the counts alleged in an underlying plaintiff’s complaint are not determinative for coverage determinations. Rather, the factual allegations within the four corners of the complaint are key to coverage determinations. Thanks to Rachel Thompson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Confusion in Pennsylvania Products Law? August 17, 2012 < Back Share to: Products liability law in Pennsylvania has become increasingly unpredictable. In the last three years, the Third Circuit has twice opined that the state Supreme Court is likely to adopt provisions of the Restatement (Third) of Torts, which introduces the concept of negligence into products liability law. However, the state Supreme Court has not directly addressed this issue, thus, the Restatement (Second) Torts appears to remain controlling for state courts. Unlike the Third Restatement, the Second Restatement states that a defendant will be liable for any defective product that is unreasonably dangerous to the product’s user, which does not include the concept of negligence. Therefore, the products liability law parties will be subject to in Pennsylvania depends entirely on whether the federal or state courts have jurisdiction in the matter. Further, since these laws are in conflict, the rights and responsibilities of each of the parties will differ depending on which forum is selected for the case. Getting any clarity from the state Supreme Court in the near future appears unlikely. Therefore, for now, it appears this unpredictable aspect of Pennsylvania law will remain. Special thanks to Colleen Hayes for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News Expert Not Needed to Overcome Summary Judgment (PA) November 22, 2017 < Back Share to: The Pennsylvania Superior Court recently vacated two orders of summary judgment following review of the trial court’s determination regarding the existence of a genuine issue of material fact. In Medsger v. Hawaiian Tan, No. 1635 WDA 2016, Nov. 20, 2017, the Superior Court held that the trial court’s granting of summary judgment for defendants was erroneous, and vacated the orders as well as remanding the case for trial. The case arose from an incident in which defendant Matkovich, a patron of Hawaiian Tan salon, was turning left onto a highway after exiting the salon. Plaintiff Medsger was traveling on his motorcycle northbound on the highway. While turning onto the highway, Matkovich’s vehicle collided with Medsger, causing serious injuries to Medsger. At the time of the collision, there were five temporary yard signs advertising Hawaiian Tan’s business that were located along the highway between the exit Matkovich was using and the entrance to the highway. Plaintiff alleged that Hawaiian Tan was negligent in placing the sings too close to the highway in violation of local ordinances. Plaintiff also alleged that the property owner of the building in which Hawaiian Tan was located was negligent by permitting Hawaiian Tan to erect and maintain the signs too close to the highway. The trial court granted summary judgment in favor of Hawaiian Tan and the property owner, concluding that Plaintiff failed to present a prima facie case that the placement of the advertising signs contributed to the accident by blocking Matkovich’s view of the highway. In granting defendants’ motions for summary judgment, the trial court rejected an affidavit by Plaintiff’s son which attached several photographs depicting the location of the signs. The trial court ruled that the affidavit was an unscientific recreation of the accident scene and that it lacked assurance that it accurately reflected Matikovich’s viewpoint at the time of the accident; thus failing to raise a genuine issue of fact as to whether the sign placement impaired Matkovich’s view of the highway. On appeal, the Superior Court applied a de novo standard of review as to the presence of a genuine issue of fact. In reversing the trial court’s granting of summary judgment, the Superior Court stated that, under Pennsylvania law, credibility and weight of witness testimony are not proper considerations at summary judgment stage, but rather that they fall under the purview of the jury. The Superior Court further stated that, when viewing the facts in the light most favorable to Plaintiff (the non-moving party), the information and photographs contained in the affidavit created a genuine issue of fact. The court noted that, at the summary judgment stage, it was irrelevant whether Plaintiff’s son qualified as an expert witness, and that Plaintiff was entitled to introduce the photographs and have the jury weigh the credibility of the affidavit. In its opinion, the PA Superior Court provides a concise and helpful articulation of the Pennsylvania standard for summary judgment, while also citing the specific examples of layperson’s affidavits and photographs from the scene of an accident. The reality is, this decision is likely good news for plaintiffs in PA, who are seeking to avoid incurring expert witness fees at the motion stage. Thanks for Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News COVID-19 And Force Majeure Clauses (NY) March 20, 2020 < Back Share to: As the coronavirus COVID-19 has swept the globe and forced “business as usual” to stop nationwide while Americans shelter in place and practice social distancing, there will inevitably be an increase in contractual non-performance due to the changing circumstances. As business entities and individuals are forced to renege upon their contractual obligations, the courts will need to immediately grapple with the interpretation and application of contractual force majeure clauses and also force majeure as an affirmative defense. A “force majeure” event is an event beyond the control of the parties that prevents contractual performance and may excuse nonperformance. Beardslee v. Inflection Energy, 25 N.Y.3d 150, 154 (N.Y. 2015); Kel Kim v. Cent. Mkts., 70 N.Y.2d 900, 902 (N.Y. 1987). Typically, New York courts have narrowly construed force majeure clauses, and have only excused nonperformance if the force majeure clause specifically stated the event preventing the party’s performance. The courts will seek to determine the parties’ intent when interpreting and applying the doctrine of force majeure. The New York State and New York City governments have enacted an assortment of regulations with regard to businesses and individuals in an effort to slow the spread of COVID-19. Accordingly, we can anticipate that there will eventually be litigation regarding nonperformance of contractual obligations during this time. There is New York precedent for the position that “governmental prohibitions” such as temporary restraining orders do constitute valid applications of force majeure doctrine. Reade v. Stoneybrook Realty, LLC, 63 A.D.3d 433 (1st Dep’t 2009). As litigation commences and defendants become aware that they may need to mount a force majeure defenses – regardless of whether the contract actually included a force majeure clause – defense counsel will need to keep in mind the following factors which New York courts will be using to assess the viability of the force majeure defense: (1) whether a force majeure clause existed, the specific language used and events contemplated, and any indication of the drafters’ intent; (2) whether the subject event, i.e., the COVID-19 pandemic, falls within the scope of the clause and/or could have been contemplated at the time the parties entered into the contract (e.g., contracts entered into in early March 2020); and (3) whether the COVID-19 regulations made performance completely impossible, not just inconvenient or expensive. Thanks to Shira Straus for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Never Too Early to Celebrate the Holidays - NY App Div Decision on Holiday Displays September 8, 2010 < Back Share to: In Chabad of Mid-Hudson Val. v. City of Poughkeepsie, a menorah display on the street corner in front of a privately owned building was the center of a constitutional lawsuit. The street corner location had been historic, however, in 2007, the City told plaintiffs they would have to move their menorah to a City-owned public lot. Plaintiffs sued under 42 USC §1983, claiming that the City’s conduct violated the Establishment Clause of the First Amendment of the United States Constitution. After the suit was commenced, a group of intervenors claimed that the use of the City’s labor and materials as well as municipal funds to set up the menorah display was a violation of the Establishment Clause, and as such the original complaint should be dismissed. After a decision largely in favor of the plaintiffs, dismissing the intervenors contentions and ordering both the City and plaintiffs to appear for a conference to develop a uniform policy for all of the City holiday displays, the intervenors appealed. The Second Department, upon conducting an Establishment Clause analysis found, again, in favor of the Plaintiffs in that the display on the street corner against the backdrop of a privately owned large building did not send any message to a reasonable observer that the government was endorsing one particular religion. Rather the court considered that there were Christmas wreaths, lights and displays all over the downtown area, as well as a Christmas tree on the same block as the Menorah. The court described the scene as a celebration of religious diversity during the holiday season, rather than government endorsement of any particular religion. However, the Appellate Division did find, consistent with the intervenors contentions, that the City workers’ labor and the use of municipal funding toward the menorah display was a violation of the Establishment Clause. Thanks to Alison Weintraub for her contribution to this post and Happy New Year to all those celebrating. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06514.htm Previous Next Contact

News New York (Insurance Coverage) State of Mind (NY) June 11, 2021 < Back Share to: In City of New York v. Fleet General Insurance Group Inc., the Eastern District of New York addressed the causal link required to trigger an insurer’s duty to defend an additional insured. This case arises out of a state-court lawsuit, filed against the City of New York, for millions of dollars in property damage, that allegedly occurred when a section of Northern Boulevard in Queens collapsed during a construction project. Specifically, ConEd filed a complaint in state court seeking to recover damages allegedly suffered due to the collapse. The lawsuit named the City and the general contractor, Perini, as defendants, among others. In turn, the City filed a lawsuit in federal court arguing that Perini’s insurer was required to defend the City in the state court action on an additional insured basis. By way of background, consistent with a City requirement, Perini had obtained an insurance policy that covered the City as an additional insured “only with respect to liability for ... ‘property damage’ ... caused, in whole or in part, by [Perini's] acts or omissions.” In determining whether the insurer had a duty to defend the City, the court concluded that since the additional insured endorsement required coverage for property damage “caused, in whole or in part, by” Perini's acts or omissions, the insurer was required to cover the City for property damage proximately caused by Perini. Thus, the court continued that since, fairly read, the ConEd lawsuit alleged that the City was liable for such damage, the court concluded the insurer’s additional insured duty to defend had been triggered. Accordingly, this case illustrates that New York courts will look to whether the insured’s actions were the proximate cause (not but-for cause) of the claimed damages, in determining whether an insurer’s additional insured obligations have been triggered. Thanks to PJ Benasillo his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News New York Judge Finds Probable Cause to Grant Summary Judgement (NY) August 21, 2020 < Back Share to: In Showon v. City of New York, the plaintiff brought a cause of action against the City of New York for false arrest, false imprisonment, malicious prosecution, and battery after being arrested for running over a passenger’s foot and leaving the scene of an accident. In the criminal case, the plaintiff taxicab driver who allegedly ran over a passenger’s foot was prosecuted for leaving the scene of an accident without reporting personal injury. The New York City Police Department arrested and charged the plaintiff after conducting an investigation and receiving a signed criminal court supporting deposition, which is verified under the penalty of perjury. Ultimately, the prosecution against the plaintiff was dismissed. On August 5, 2016, the plaintiff filed his complaint in New York County’s Civil Term. After discovery and depositions were taken, the City of New York moved for summary judgment pursuant to CPLR § 3212. In his decision, the Honorable Laurence L. Love noted that the existence of probable cause rebuts a claim of false arrest, false imprisonment, and malicious prosecution under both New York State law and Federal Law. In order for the plaintiff to set out a cause of action for false arrest and/or imprisonment, a plaintiff must show that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to it, and the confinement was not otherwise privileged. Judge Love noted that “the false arrest and false imprisonment claims did not lie if the City could establish existence of probable cause for the plaintiff’s arrest.” Judge Love stated that the supporting deposition and the NYPD’s investigation supported a finding of probable cause to arrest the plaintiff. The plaintiff argued that a question of fact exists as to whether the defendant had probable cause to arrest the plaintiff because the plaintiff was never notified that he had “run over” a passengers foot, and that leaving the scene after receiving payment was normal business behavior for a taxi driver. Despite viewing the facts in the light most favorable to the plaintiff, the Court was not swayed by the plaintiff’s argument, finding that the plaintiff did not put forth evidence that “materially impeached” the facts that lead to his arrest. The Court found the City had probable cause to arrest the plaintiff, and granted the City’s motion for summary judgment. This case confirms that a finding of probable cause for an arrest will preclude a pliantiff from filing suit for false imprisonement based on that arrest. Thanks to Irving Fayman for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY's Second Dept. Finds Asbestos and Pollution Exclusions Ambiguous. November 19, 2010 < Back Share to: In the case of Great American Restoration v. Scottsdale Insurance, NY's Second Department was faced with the question of whether a CGL policy's asbestos and pollution exclusions barred coverage in a situation in which Great American's clean-up of a flood caused asbestos to be dispersed around the building it was hired to clean -- http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9986753. The asbestos exclusion provided that coverage did not apply to "bodily injury" or "property damage" arising out of the "inhal[ation]" or "prolonged physical exposure to" asbestos, the "use" of asbestos in construction, the "removal" of asbestos from products or structures, or the "manufacture, sale, transportation, storage, or disposal" of asbestos or products containing asbestos. The pollution exclusion stated that coverage does not apply to "[b]odily injury' or property damage' arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants.'" "Pollutants" were defined as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." In respect of the asbestos exclusion, the Second Department held that the exclusion did not apply because the exclusion did not make clear that coverage would not attach for accidental release or dispersal of asbestos. In respect of the pollution exclusion, the Second Department held that since asbestos was not enumerated as a pollutant, and in light of the specific asbestos exclusion, asbestos was not a pollutant for purposes of the policy. Scottsdale was thus mandated to defend and indemnify Great American. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Dennis Wade to Speak at Federal Bar Association Art Conference in Rome on March 6, 2020 February 16, 2020 < Back Share to: On March 5-6, 2020, the Federal Bar Association will be hosting an Art Law and Litigation event, appropriately venued in Rome, Italy. The event, entitled, Restitution & Return: Art Law in Europe, will feature an array of attorneys and other authorities from the art world, to present on developments and challenges in art law litigation, from both the European and U.S. perspective. On March 6, Dennis Wade will be among a distinguished panel of speakers, and will discuss how litigation issues often play out in the area of looted and stolen art. For more information, please email Dennis, or click here for registration details. Previous Next Contact

News Blake Labor Law Defense Stands: Plaintiff’s Own Negligence Bars Recovery (NY) November 7, 2013 < Back Share to: In Barreto v. Metropolitan Transportation Authority, the First Department upheld the lower court’s decision that granted the defendants’ summary judgment motions and denied the plaintiff’s cross-motion for partial summary judgment on his common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims. Barreto was performing asbestos removal work below ground. In order to do this work, he and his co-workers had constructed a wooden enclosure around the manhole cover that they then covered with plastic sheeting to protect the surroundings from asbestos contamination. An opening was left in the enclosure to provide access to the manhole. Inspectors from the Metropolitan Transportation Authority checked to ensure that the electricity had been turned off and an outside safety consultant monitored the below ground air quality. Once approval was given permission, Barreto’s co-workers removed the cover and placed it outside the enclosure. They then sealed the opening and descended through the manhole. At the end of the shift, the workers removed their equipment from below ground, exited the manhole, replaced its cover and dismantled the containment enclosure surrounding the manhole. Barreto was injured at the end of his shift, after climbing out of the manhole. Instead of covering the manhole as he had been directed to, Barreto and his co-workers began dismantling the containment enclosure. In the process of doing so, Barreto fell into the hole. During discovery, Barreto conceded that earlier that day his supervisor had told him to cover the manhole before breaking down the enclosure. The First Department noted that Barreto's own actions were the sole proximate cause of his accident. Barreto was provided with the perfect safety device -- the manhole cover. Yet, he chose not to use it and disregarded his supervisor's explicit instructions. Moreover, the court noted that since Barreto had just emerged from the manhole, he should have known that it was still open and should have avoided it. In an attempt to defeat the defendants’ summary judgment motions, Barreto argued that a guardrail should have been placed around the manhole, but the court rejected this and also rejected Barreto’s argument that safety netting or a harness should have been provided. Simply put, the manhole cover itself was sufficient. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News WTC Settlement Revived June 11, 2010 < Back Share to: The World Trade Center bombing has spawned litigation concerning the scope of property coverage available to the site's property owners and lessee as well as claims for bodily injury and property damages arising from the events of that tragic day. In breaking news, the City of New York and its contractors have reached a tentative revised settlement with the plaintiffs in the MC 100 litigation involving "on site, ground zero" bodily injury claims. The new settlement proposal was presented to Judge Alvin Hellerstein of the U.S. District Court, Southern District of New York on June 10, 2010 and seemed to receive his blessing. The significant changes from the earlier proposal include: (1) increasing the total settlement package to $712.5 million from the previous $575-$657.5 million; and (2) reducing the plaintiffs' attorneys fees to 25% from 33 %. The net result is that the pool of funds available to the MC 100 plaintiffs will be substantially increased between the additional money paid on behalf of the City and the 20 % reduction in attorneys fees. Judge Hellerstein has scheduled a "fairness hearing" on June 23, 2010 which will be open for comment by the attorneys, plaintiffs and members of the general public. It is unclear how this settlement will affect the remaining MC 101, 102 and 103 dockets. However, it is fair to surmise that once the MC 100 litigation is resolved, the court will turn its attention to moving those other dockets to a conclusion either through settlement or a trial of several test cases. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact