News The Last Domino Falls: New Jersey Is Now Officially "Continuous Trigger" on CD Cases. October 12, 2017 < Back Share to: It was a long time in the making (or preventing), but New Jersey is now officially a continuous trigger jurisdiction when it comes to construction defect litigation and CGL policies. In the case of Air Master v. Selective Insurance, the appellate court was faced with a "typical" NJ construction defect case, i.e. a large condominium complex which years after completion experienced water infiltration and resulting damages. The case's key facts are: • Air Master's work was conducted between November 2005 and April 2008; • Water damage (allegedly resulting from the work) was noticed as soon as February 2008; • But, it was not until April 2010 that an "expert" documented the water issues; • Penn National insured Air Master from November 2005 to April 2008; • Selective insured Air Master from June 2009 until June 2012; and • Harleysville insured Air Master from June 2012 to June 2015. The Superior Court, in an approved for publication decision, was effectively asked to determine whether Selective's policy obligations were limited to "property damage" that occurred during its policy periods. In a 29 page opinion, the Superior Court held that: (1) a "continuous trigger" theory of insurance coverage may be applied in this State to third-party liability claims involving progressive damage to property caused by an insured's allegedly defective construction work. (2) the "last pull" of that trigger -- for purposes of ascertaining the temporal end point of a covered occurrence -- happens when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know if it. (3) the "last pull" of the trigger does not occur until there is expert or other proof that "attributes" the property damage to faulty conduct by the insured. So, what does all of this mean? The bad news (especially for Selective in the case at bar) is that insurers will no longer able to argue that, in the absence of evidence of "property damage" during the policy period, there is no coverage -- so, earlier in time insurers are likely to bear more risk. But, the good news is that the "trigger" ends (it seems) when there is actual or constructive notice of the "property damage" -- which means that later in time insurers should be able to limit coverage...if they can establish notice of the problems. The last domino has finally fallen, but a new game is about to begin. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Court Holds that Coverage Disputes Preclude Appraisal in Long-Running Lawsuit for Superstorm Sandy Damages (NY) October 29, 2020 < Back Share to: In a coverage dispute relating to property damage and lost income sustained by chocolatier Madelaine Chocolate Novelties after Superstorm Sandy, Magistrate Judge Steven Gold of the Eastern District of New York recently rejected Great Northern Insurance Company’s effort to force appraisal of the claim. In 2018, the Second Circuit overturned a 2017 Eastern District of New York decision which granted summary judgment to the Queens-based chocolatier based on the application of the policy’s “flood” exclusion, which barred coverage for damage caused by waves, tidal water, or the overflowing of the oceans. The case is likely headed to trial in the coming months. At this late stage of litigation, Great Northern moved to compel appraisal based on the policy’s Appraisal Clause, which applies where the parties “disagree on the value of the property or the amount of the loss.” Under New York law, issues relating to liability and/or coverage are not subject to appraisal; rather, only the issue of damages is subject to such a clause. While there were also issues regarding whether the demand for appraisal was made in good faith and whether it was untimely, Madelaine ’s primary argument opposing the motion is that there remains a large dispute as to how the parties interpret the phrase “replacement cost” – i.e., whether or not it refers to the replacement cost for used machinery or new machinery. Separately, Madelaine pointed to the dispute over whether certain costs would be calculated as part of their business interruption damages. Although the order by Judge Gold denying Great Northern’s motion did not expound upon the rationale (and a transcript of oral argument was not made available at the time of publishing), there is analogous support in the case law for Madelaine’s position that likely formed the basis for Judge Gold’s decision. Specifically, in Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 261 F.Supp.2d 293 (S.D.N.Y. 2003) the court held that the specific determination of the scope of the phrase “Restoration Period” was a coverage dispute for the court and not subject to appraisal. Great Northern did cite a decision from later proceedings in the same case, Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 279 F.Supp.2d 235 (S.D.N.Y. 2003), where the court held the appraisal panel could determine the actual length of the period; however, the court did so only after it determined how that period could be determined. Applying that logic to this case, only after a court determines what makes up the “replacement cost” can an appraisal panel determine its value. Thanks to Doug Giombarrese for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Unread Emails Leads to Dismissal (PA) October 21, 2022 < Back Share to: In Dukich v. Ikea US Retail LLC, the Eastern District of Pennsylvania found that a defendant cannot be liable for consumer fraud or negligence in connection with a product recall because none of the plaintiffs established any false or misleading statement from defendant. In 2016 and 2017 Ikea issued two separate recalls on its “MALM” line of dressers when it became aware of deaths and injuries from tip-over accidents related to this line. The plaintiffs in the case all purchased furniture from IKEA which was subject to the recall. IKEA notified purchasers of the MALM line of dressers of the recall primarily through email. The plaintiffs, seeking a full refund, brought a putative class action for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) and negligence. To succeed in a UTPCPL action, a plaintiff “must identify the specific act, omission, or misrepresentation” of a defendant’s conduct. Defendants argued that plaintiffs were aware of the remedies available to them under the recall and that IKEA offered them the proper remedies to which they were entitled, and as a result IKEA did not engage in any misleading or deceptive behavior, nor was it negligent in how it carried out its recall policy. IKEA sent all the plaintiffs’ emails about the recall to their personal email addresses, but they failed to read the emails. The Court reasoned that IKEA provided adequate notice, and therefore the plaintiffs provided no evidence that it violated the UTPCPL or acted negligently. Thanks to Brenna Jeffries for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Prior Arguments Between Students? Don’t Let Them Wrestle During Gym Class (NY) October 8, 2013 < Back Share to: In Carter v. Uniondale Union Free School District, middle student Alonzo Carter, fractured his arm when another student, Kevon Hennit slammed him to the ground during a wrestling match in gym class. Carter filed suit against the school district, claiming it was negligent in its supervision and control of the students. After depositions, the school district moved for summary judgment arguing that it had no prior notice of any incidents between the boys and that Carter had voluntarily assumed the risk of injury. Under New York law, in order to find that the school district breached its duty to provide adequate supervision in the context of injuries caused by the acts of fellow students, Carter had to demonstrate that the school had sufficiently specific knowledge or notice of the dangerous conduct that caused the injury, i.e., that Hennit’s acts could reasonably have been anticipated. In denying the motion, the court relied on testimony from sixth grade guidance counselor, Robert Rivas, and math teacher Leonard Florentino, who testified that there had been prior verbal and physical confrontations between the boys. Rivas further testified that Florentino advised him that Hennit had struck Carter several weeks earlier, following which Rivas held meetings with the boys and their parents wherein he advised the boys to stop bothering each other. Additionally, the court noted that Carter had filled out a separate Student Standard form prior to the accident wherein he complained that Hennit had threatened to put his hands on him. Based on these incidents, the court concluded that the school district had prior actual notice of similar conduct between the students and, as such, there was an issue of fact exists as to whether the school district reasonably could have known that the subject incident would occur. Finally, the court discounted the assumption of risk argument, finding that while wrestling is an inherently violent sport and Carter had been instructed not to reach out his arm while falling, it was unreasonable for the gym teacher to assume that all students would follow his instructions precisely. Even though the district contended that Carter voluntarily took part in the wresting match and picked Hennit as his partner, this was a required gym class and the school had sufficient notice that the students should not have been allowed to wrestle one another. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Google Maps Admitted Into Evidence To Challenge Service Of Process (NY) September 10, 2021 < Back Share to: Google Maps is often used to get an idea of what a particular piece of property looks like or, for more utility, to gauge the distance between two locations. With respect to the latter, the Civil Court of the City of New York, Bronx County recently took judicial notice, over objection, of information contained in two Google Maps printouts submitted as evidence in a traverse hearing. In 2437 Valentine Assocs. v. Valverde, et al, 70 Misc. 3d 1216(A) (Civ. Ct. 2021), the defendants moved to vacate a default judgment entered against them in an action for breach of lease. The defendants argued that the Court did not have personal jurisdiction over them, as they were not served with process. The Court set the matter down for a traverse hearing. The only witness for the plaintiff was the process server. During direct and cross examination, he was questioned about entries made in his logbook which raised questions regarding whether he actually served process at the times and locations alleged. The Court, in its decision, indicated that the process server was simply not credible. Part of that determination was made by using, among other things, exhibits admitted into evidence containing two Google Maps printouts. The Court took judicial notice of only that portion of the maps that indicated the distances between the addresses contained in the process server’s logbook, one being the defendants’ address. Based on that evidence, the Court found that the alleged times of service at those various locations were not credible given the distances between them. In a footnote, the Court stated, “It is well established that a court can take judicial notice ‘of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain.’” (citing Carter v. Metro N. Assoc., 255 A.D.2d 251, 251 (1st Dep’t 1996)). Continuing, the Court went on to state, “it is well settled that Google Maps accurately depicts distances and locations of nearly everything in the United States.” The Court also observed that “In 2020, Google Maps was used by over 1 billion people every month.” The Google Maps evidence in that case was admitted into evidence for only a limited purpose. With the proper foundation and authentication, we may see more widespread evidentiary uses of Google Maps moving forward. Thank you to John Diffley for his contribution to this post. Please e-mail John with any questions. Previous Next Contact

News Slippery When Wet Does Not Automatically Equate To Liability (NY) September 11, 2013 < Back Share to: In Bock v. LouMarita Realty Corporation, the plaintiff slipped and fell on a wet sidewalk in front of the defendants’ premises. Bock testified at his deposition that when he exited the premises, he suddenly slipped and fell to his left, striking his head on a metal rail. He described the sidewalk as “an extremely slippery piece of rock or concrete off a very much coarser piece of pavement . . . the surface was shiny and firm.” The owner’s representative testified that the sidewalk was made of granite that was connected to masonry by a cement strand, there were no defects in the sidewalk and it was raining at the time of the accident. The defense’s expert engineer also submitted an affidavit stating that the sidewalk was of an acceptable slip resistance and there was no evidence of a tripping hazard or defect in the sidewalk. In opposition, Bock claimed that a question of fact existed as to whether the defendants neglected to maintain their property in a reasonably safe condition and that the concrete patch of sidewalk, in and of itself, was a sidewalk defect. In support, he submitted an affidavit from his engineering expert who found that the concrete “patch” was a tripping hazard and that the slip resistance test revealed the surface to be above the maximum allowable co-efficient. The trial court found that despite his expert’s affidavit, Bock failed to show the existence of a defective or dangerous condition in the sidewalk, nor that the defendants created or had knowledge of such a condition. Specifically, the court found Bock’s expert affidavit merely stated in a conclusory fashion that the sidewalk was inherently dangerous because it was slippery and slick when wet. Just because a sidewalk becomes slippery when wet, does not necessarily mean that it is a dangerous or defective condition, even if the plaintiff’s expert engineer says so. Special thanks to Michael Nunley for his contributions to the post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Plaintiff Failed to Demonstrate That Fall From Flatbed Violated Labor Law &#167;240(1) June 17, 2008 < Back Share to: The plaintiff in Berg v. Albany Ladder Company, Inc., et al., was working on a flatbed truck unloading steel trusses. While standing on top of a bundle of trusses, approximately 10 feet off the ground, another bundle began to roll on top of him. The plaintiff climbed into the bundle as it fell to the ground and was injured. In granting the defendants' motion for summary judgment, the Court of Appeals reiterated that the protections of Labor Law §240(1) do not apply to every worker who falls and is injured at a construction site. Rather, the worker must first demonstrate the existence of an elevation-related hazard contemplated by the statute and a failure to provide the worker with an adequate safety device. The Court held that the plaintiff failed to adduce sufficient proof to create a question of fact regarding whether his fall resulted from the lack of a safety device. www.nycourts.gov/ctapps/decisions/jun08 Previous Next Contact

News WCM Obtains Defense Verdict in Queens, NY Jury Trial. March 4, 2013 < Back Share to: New York, New York Associate Lora H. Gleicher obtained a defense verdict in a Queens County, NY jury trial. In Brazile v. Pioneer Cleaning Maintenance Services, et al., the plaintiff allegedly slipped and fell as she was stepping over an eight-inch pile of snow on a sidewalk outside of The Bristal Assisted Living Center. Plaintiff claimed that our client, Executive Snow, negligently plowed snow from the parking lot onto the sidewalk and thereby caused the allegedly hazardous condition that caused the fall. At trial, we focused on the accuracy of plaintiff’s version of the accident. We capitalized on plaintiff’s testimony that she did not personally observe a snowplow pushing snow onto the sidewalk where she fell, but rather assumed this must have happened. We also focused on the fact that plaintiff’s testimony was that the snow pile was eight inches high, when weather records only evidenced a ½ inch of snow on the day in question. We further argued that that there was no evidence that our client had negligently performed its work. In this regard, we emphasized that The Bristal Assisted Living Center had signed off on our client’s work as satisfactory after it was completed. After getting the case, a Queens jury deliberated for a little over an hour. The jury agreed with our theory of the case and granted us a defense verdict. Previous Next Contact

News Everything Flows Downhill: New York AD Rules That Sub's Insurers Must Fund Entire Settlement April 28, 2010 < Back Share to: New York construction litigation is like a multi-headed dragon: cut off one head (issue) and another one quickly emerges. In analyzing its ultimate exposure in this context, an insurer must consider both the underlying liability of all its insureds as well as how the coverage disputes amongst the various insurers will play out at the end of the case. In Indemnity Ins. v. St Paul Mercury, the Appellate Division, First Department grappled with a mind numbing fact pattern after a general contractor’s employee was injured due to the negligence of a subcontractor. The case discusses the interplay between New York’s Labor Law, contractual indemnity and additional insurance requirements, the hierarchy of coverage and New York’s anti subrogation doctrine. At the end of the day, the subcontractor’s insurers wind up footing the entire bill for the $3,000,000 settlement with no contribution from the owner or the general contractor. The First Department discusses the distinction between liability and coverage as well as the anti subrogation doctrine, which prevents the subcontractor’s insurer from seeking contribution from its additional insureds in an indirect effort to pick the pockets of the policies of the owner and general contractor. Who says insurance coverage litigation can't be fun? If you have any questions or comments on this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03254.htm Previous Next Contact

News WCM Obtains Summary Judgment Prior To Discovery Pursuant To The Homeowner's Exemption of NYC's Sidewalk Law July 29, 2021 < Back Share to: Wade Clark Mulcahy successfully obtained pre-discovery summary judgment dismissing the Plaintiff's complaint and the City of New York's crossclaims against Gloria and Debra Lewis, arguing the insured were shielded from liability pursuant to the Homeowner's Exemption of New York City Administrative Code §7-210. The action against our clients and the City of New York arises out of a trip-and-fall accident on February 7, 2019. Plaintiff claims she suffered injuries while walking on the sidewalk adjacent to our client's residential property. Relying on the Lewis sisters' affidavit, WCM filed a pre-discovery motion for summary judgment arguing the Homeowner's Exemption of the New York City Administrative Code §7-210 shields our clients from liability as occupying owners of the property used exclusively for residential purposes. Plaintiff did not oppose that our clients fell outside of the exemption. Instead, Plaintiff argued the Lewis sisters might have created or caused the allegedly hazardous condition by performing repairs on the sidewalk in front of the property. In New York, an abutting landowner could be held liable only if the owner affirmatively created the dangerous sidewalk condition, negligently made repairs, or used the sidewalk in a special manner for its own benefit. In support of her argument, Plaintiff offered a photograph which she attests show that patchwork had been performed by the Lewis sisters. Bronx Supreme Court Justice Mitchell J. Danziger ruled that the photograph plaintiff attached in support of her motion to show our clients had performed that patchwork is not admissible since it was updated and unauthenticated. Therefore, the exhibit was not acceptable proof that raised a triable issue of fact. Even if the photo were admissible, the Court noted the assumption that our clients may have performed the patchwork is merely a speculative assertion and insufficient to defeat a motion for summary judgment. Plaintiff also argued summary judgment was premature as they have not had the opportunity to depose the defendants and are entitled to a reasonable opportunity for disclosure of evidence. However, the Court was not swayed by the argument, ruling the Plaintiff provided no basis to believe that deposition of our clients would yield a basis for their asserted opposition. Thus, the Court granted the motion for summary judgment and the Plaintiff’s complaint was dismissed against our clients. Thanks to Irving Fayman for his contribution to this post. Should have any questions, please contact Tom Bracken. Previous Next Contact

News “Non-Payment” for an Oil Delivery is Not a “Theft,” and Thus Not Covered Under “All Risks” Policy (NY) August 12, 2020 < Back Share to: A New York court recently ruled, in Carlyle v. Underwriters, that a $400 million loss of crude oil was not covered under an “all risks” insurance policy, as the loss resulted from non-payment of the insured’s business partner, and not a “theft.” In 2015, plaintiffs Carlyle Commodity Management LLC (“Carlyle”) entered into a Master Commodity Transaction Agreement with now-defunct Moroccan refinery SAMIR. SAMIR entered into agreements with various third-party suppliers to purchase oil that SAMIR would hold at its refinery. Under the Agreement with Carlyle, Carlyle would purchase the oil to keep at SAMIR’s refinery and retain a “Put Right” which would require SAMIR to purchase the oil from Carlyle. SAMIR could not use the oil Carlyle had purchased unless Carlyle consented. In practice, however, SAMIR processed the oil and sold the resulting refined product without Carlyle’s consent, but would later pay Carlyle at a later date. In August 2015, the Moroccan government seized SAMIR’s bank accounts for non-payment of taxes. At the time of the seizure, SAMIR owed Carlyle approximately $400 million in shipments of oil for which Carlyle had paid. The issue before the court was whether the resulting loss was covered under Carlyle’s insurance policy, which covered against “all risks of physical loss or damage from any external cause.” Carlyle claimed that SAMIR had “stolen” the oil, but the court ultimately held that “Carlyle’s losses were not occasioned by the unlawful taking of the oil, but rather by SAMIR’s non-payment.” The court distinguished cases where a “pretend purchaser” absconded with the goods based on fraudulent intent and held that this was a case of simple non-payment under a business agreement, which is not a covered loss under the policy. The decision acknowledges the limits of “all risk” policies. The policies do cover losses for theft, but New York law draws a distinction between theft and non-payment. While fraud is covered as a form of theft, a bona fide party’s non-payment in the ordinary course of business is not considered theft. Thank you to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Defendant Fails to Answer, Plaintiff Fails to Move for Default - What's Next? (NY) April 10, 2019 < Back Share to: In White Oak v. Goyal the Court of Claims faced a situation where certain defendants were clearly in default, but the plaintiff had failed to move timely for default. Plaintiff White Oak Commercial Finance initiated an action against Goyal, Yaduvanshi, and Deutshce Bank/Ocwen. The complaint was served to all defendants in August of 2016, with Yaduvasnhi serving an answer, but Goyal never answering or moving to dismiss, and with Deuthsce Bank/Ocwen moving to dismiss pursuant to CPLR 3211(a)(1),(3), and (7). With the motion to dismiss pending, plaintiff amended its complaint on October 24, 2017, over one year after initial service, without changing any claims against Goyal and Yaduvanshi. On October 10, 2018 plaintiff moved for a default under CPLR 3215 against Goyal and Yaduvanshi. Goyal then cross moved under CPLR 3215(c) for failure to dismiss Goyal’s default within one year. The law for a default judgment is very straightforward: a party seeking default must show proper service, a failure to respond to the pleading, and various facts to establish a meritorious claim. This was simple against Goyal, who did not answer either the original August of 2016 complaint or the amended complaint of October of 2017. Yaduvanshi answered the original complaint, but was in violation for failing to respond to the amended complaint. As for the cross-motion, the Court ruled that plaintiff had failed to fulfill its obligations under CPLR 3215(c), which require a plaintiff to move for default within one year, which means that the complaint should be dismissed. The Court focused on the absence of prejudice that the defendants had from the delay, as well as the fact that the action had not been abandoned since it proceeded on its claims against the other defendants. This is an important lesson for defendants, who can sometimes rely on the complacency of a plaintiff in excusing a late answer or vacating a default, but unless a defendant can show some sort of prejudice from the delay, Courts are hesitant to force plaintiffs to strictly comply with the time requirements of CPLR 3215(c). Thanks to Chris Gioia for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact