News Tenant Is All Wet As Res Judicata Won't Bar Subro. Case Despite Prior Settlement January 28, 2008 < Back Share to: In Employers' Fire Insurance Company v. Brookner, 2008 NY Slip Op. 00448, AD Index 2007-02514, Kings Co. Index 13987/06, tenants and owners of a commercial building owned by RAIA Realty Corp allegedly sustained extensive water damage due to a faulty hose of a laser machine owned by Andrew Brookner, the third floor tenant. Employers' Fire Insurance Company, RAIA Realty Corp's insurer, paid the claims of its insureds and the first floor tenant. Meanwhile the second floor tenants, Alexandra and Edward Etkin, commenced a lawsuit against RAIA, RAIA's principal and Brookner for property damage and personal injury stemming from this same incident. RAIA and its principal asserted crossclaims for contribution and indemnification against Brookner. Ultimately, without contribution from RAIA or its principal, Brookner paid the settlement reached, a stipulation of discontinuance was executed and the case was discontinued with prejudice. Thereafter, Employers' Fire Insurance Company commenced a subrogation action against Brookner to recoup the monies paid to its insureds as a result of the water damage caused by Brookner's negligence. Brookner moved to dismiss, asserting that this subrogation action was barred by res judicata based upon the stipulation of discontinuance in the Etkin case, which arose from the same occurrence. The trial court denied this motion. In affirming the lower court's decision, the Appellate Division - Second Department, stated that subrogee insurer stands in the shoes of its insureds and that the doctrine of res judicata only bars additional actions between the same parties, on the same claims, based upon the same harm. RAIA and its principal's crossclaims in the Etkin case were based upon Etkins' harm whereas the subrogation action was based upon the harm suffered by RAIA and its principal. Moreover, the stipulation of discontinuance in the Etkin case was silent as to the crossclaims. In the end, the Court determined since RAIA and its principal were not barred by res judicata, the subrogation action could proceed. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_00448.htm Previous Next Contact

News Court Doesn't Like Facebook Discovery Demands (NY) October 19, 2012 < Back Share to: With the increase in popularity of social media websites in recent years, attorneys are increasingly seeking the disclosure of parties’ social media accounts. Acknowledging this trend, the New York State Appellate Division recently held that any such disclosure requests must be narrowly tailored, seeking only social media account information that relates to the subject of the litigation. In Kregg v. Maldonado, the plaintiff commenced an action on behalf of her injured son, Christopher, against Suzuki Motor Corporation of Japan and American Suzuki Motor Corporation. Plaintiff alleged that Christopher was injured while riding a motorcycle manufactured and distributed by the Suzuki defendants. Following initial disclosure, the Suzuki defendants learned that Christopher’s family created several social media accounts, including accounts on Facebook and MySpace. Christopher’s family members posted on these social media accounts on his behalf. The Suzuki defendants moved to compel the disclosure of all social media account records maintained by or on Christopher’s behalf. Plaintiff objected to the disclosure, arguing that the motion was a “fishing expedition.” The trial court granted the Suzuki defendants’ motion to compel. But the Appellate Division, Fourth Department found that the discovery demand for the social media records was made without “a factual predicate with respect to the relevancy of the evidence.” The court held that the proper means for a party “to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social media-based information that relates to the claimed injuries arising from the accident.” Accordingly, the court reversed the trial court’s decision, and denied the Suzuki defendants’ motion to compel, but granted the defendants leave to serve a more narrowly tailored disclosure request. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact

News The FSMA: There's Power, But Is There Will? November 8, 2011 < Back Share to: It is a basic tenet of policy and politics that there is a difference between having power and being willing to use it. The FSMA appears caught in the midst of just such a difference. The FSMA legislation (which surprisingly was passed with broad bipartisan support just last December) gave the FDA broad new powers, but it now appears that current Congress is unwilling to let those powers be used. The evidence for this claim can be found in the fact that a proposed Republican 2012 budget suggests on cutting the FDA's budget by 11.5%. Such a cut is inconsistent with the staffing growth necessary to implement the legislation's goals. Something will have to give if the FDA is actually going to be able to use the powers it has been given. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Pennsylvania Supreme Court Upends Consumer Protection Laws, Now Sharply Favoring Plaintiffs (PA) March 19, 2021 < Back Share to: The Pennsylvania Supreme Court recently overturned decades of established law in the consumer protection area, resulting in increased exposure to defendants in consumer transactions. The 4-3 decision in Gregg v. Ameriprise Financial, Inc. overturned decades of precedent which formerly required a plaintiff to show the state of mind of the actor with respect to a false or misleading representation. Specifically, the Pennsylvania Supreme Court authoritatively opined upon Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“CPL”). The CPL is a “valuable” claim as it allows for treble damages as well as attorneys fees. At issue here is the “catch-all” provision, 73 P.S. § 201-2(4)(xxi). This section, prohibits anyone who advertises, sells, or distributes good or services from “[e]ngaging in any . . . fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding” during a transaction. Prior to this decision, Pennsylvania required a showing of common law fraud or proof of the actor’s state of mind (e.g., an intent to deceive). See, e.g., Hammer v. Nikol, 659 A.2d 617, 619 (Pa. Cmwlth. 1995) (“To be actionable under the catchall provision, however, the ‘confusion or misunderstanding’ created must be fraudulent.”). Pennsylvania no longer requires any showing of duplicitous intent and instead has made a violation of the CPL a strict liability statute. The Pennsylvania Supreme Court approvingly cited the intermediate appellate court indicating that strict liability was the appropriate standard for CPL cases: "[A]ny deceptive conduct, 'which creates a likelihood of confusion or of misunderstanding,' is actionable under 73 P.S. § 201-2(4)(xxi), whether committed intentionally (as in a fraudulent misrepresentation), carelessly (as in a negligent misrepresentation), or with the utmost care (as in strict liability). Whether a vendor's 'conduct has the tendency or capacity to deceive . . . is a lesser, more relaxed standard than that for fraud or negligent misrepresentation.' TAP, 36 A.3d at 1253. The only thing more relaxed than negligence––regarding a consumer's burden of proof––is strict liability." Gregg, 195 A.3d at 939. The Gregg Court further stated that “strict liability for such violations is consistent with the legislative mandate to eradicate the use of unfair and deceptive conduct.” To emphasize the increased liability and exposure, in Gregg, the jury returned a defense verdict on the fraud, misrepresentation and negligent misrepresentation claims, but the Judge ruled in favor of the plaintiff on the CPL claim, despite the fact the jury determined that no intent to deceive or confuse was present in the commercial transaction. Defendants and their insurers should be aware of this new case law and be prepared to defend the CPL under a strict liability regime. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Plaintiffs Tripped Up By Their Own Testimony On Summary Judgment (NY) September 16, 2016 < Back Share to: Courts often cite to party testimony to find a factual dispute which forms the basis to deny a summary judgment motion. But in two recent cases out of the First Department Appellate Division, the courts found in favor of property-owner defendants, in part, due to the testimony of the plaintiffs. In Pinkham v West Elm the plaintiff alleged that she was injured when she fell off an elevated display platform in defendants' store. In support of a motion for summary judgment, defendants submitted photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris. In opposition, the plaintiff submitted an expert’s report finding the area was a defective condition as it violated the New Jersey Handicap Accessibility Code and created optical confusion due to the monochromatic floor covering used on the platform and steps. The Supreme Court denied the motion for summary judgment; but on appeal the Appellate Division reversed and issued summary judgment in favor of the store. The Court cited the plaintiff's testimony that she turned and stepped without looking down as she was seeking a sales associate and that the steps played no part in her fall. Similarly, in Caban v Bronx Park S. II Assoc. the plaintiff allegedly tripped over the loose edge of a rubber mat that was affixed to the interior stairs in the lobby of the defendant's building. The defendant building owner moved for summary judgment arguing that it did not create the alleged defective condition or have notice of its existence. The defendant showed that its porter cleaned the building daily and regularly inspected the mat and the Supreme Court awarded the defendant summary judgment. On appeal, the decision was affirmed and the Appellate Division quoted the plaintiff’s own testimony that she was looking down at the mat immediately before the accident and admittedly did not see any defect. These cases show that the best defense is often to simply establish that the facts are on your side. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News Reasonable Inspections Trump 24-Hour Per Day Patrolling January 4, 2019 < Back Share to: In Rodriguez v. NYCHA, the First Department reinforced well established precedent that a defendant is not required to patrol its halls and stairs 24-hours a day, looking for dangerous conditions. In Rodriguez, the plaintiff slipped and fell on a wet substance in a stairwell in defendant's building. The court held that the defendant established its right to summary judgment with evidence that it neither created nor had notice of the allegedly hazardous condition. The court recognized that it was sufficient that the defendant’s caretaker inspected the stairwell twice every morning and once every afternoon, and promptly mopped any spills she found during her inspections. Indeed, the building was not required to patrol the staircase 24 hours a day. http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00013.htm Previous Next Contact

News NY's 2nd Dept. addresses timely notice. November 5, 2007 < Back Share to: The Second Department revered the trial court's grant of summary judgment to the insurer on late notice grounds and held that the insured raised questions of fact regarding its "reasonable belief in non-liability." http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7058832 Previous Next Contact

News Federal Courts Strengthen Spoliation Sanctions under New Federal Rules (PA) March 10, 2016 < Back Share to: Although the Third Circuit has long been considered a polestar of spoliation jurisprudence amongst the federal circuits, a recent decision from the Eastern District of Pennsylvania signals an even greater focus on sanctions under the recently strengthened Federal Rules of Civil Procedure. In DVComm, LLC v. Hotwire Communications, DVComm sued Hotwire Communications for breach of contract arising out of the use of a telecommunications business plan improperly shared, pursuant to a non-disclosure agreement. As DVComm planned expansion into the Georgia telecommunications market, Hotwire Communications allegedly implemented the former’s business plan to create a fiber optics network in the Atlanta area without compensation. According to DVComm, the use of the business plan violated a mutual non-disclosure agreement between the parties, though Hotwire ultimately contended that the business plan was part of the public domain and thus outside the limitations of confidentiality. Hotwire tailored its discovery plan to identify the drafting process of the business plan in order to demonstrate that it was, in fact, part of the public domain when implemented in the Atlanta area. In particular, Hotwire pursued all prior versions of the business plan, as well as communications related to its conception, from DVComm and third-party telecommunications providers. In response, DVComm produced only two prior versions of the business plan and certain limited correspondences regarding its development, professing in various attestations and certifications that it did not possess any additional documentation. Notwithstanding these affirmations, additional investigation by Hotwire revealed that DVComm had not only drafted several prior, undisclosed versions of the business plan, but also “double deleted” all evidence of the same during the course of litigation. Not good. After Hotwire ultimately prevailed in defending the breach of contract claims, it petitioned the Court for spoliation sanctions stemming from costs incurred in chasing relevant discovery that was purposefully destroyed by DVComm. In considering the petition, the Court specifically referred to certain amendments of the Federal Rules of Civil Procedure designed to encourage the speedy, efficient and cost-effective disposition of claims, noting that spoliation of evidence directly undermines these aims. The Court found that because DVComm’s conduct in respect of destroying evidence was intentional, it could not demonstrate a “substantial justification” for its actions that would outweigh the defendant’s right to timely and forthcoming discovery disclosures. Consequently, the Court imposed upon DVComm roughly $110,000 in sanctions, explaining that only a monetary penalty could restore the balance in litigation compelled by recent amendments to the Federal Rules of Civil Procedure as relate to discovery. The ruling emphasizes the Court's potential role in respect of discovery disputes under the new Federal Rules of Civil Procedure. Specifically, whereas litigation had previously been marred by the doldrums of discovery violations, DVComm cautions that federal courts have recently been empowered to deal with the same swiftly, and where appropriate, definitively against plaintiffs and defendants alike in order to promote case resolution as quickly as possible. Thanks to Adam Gomez for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Additional Insured Entitled to Defense and Indemnification July 15, 2009 < Back Share to: In Regal Construction Corporation v. National Union Fire Insurance Company of Pittsburgh, the City of New York engaged defendant URS Corporation to be the construction manager for a renovation project at Riker's Island. By written agreement, URS hired plaintiff Regal Construction Corporation to serve as the prime contractor for general construction, as well as for demolition and renovation. In March 2001, Regal was supervising demolition of a bath and shower area of the prison and the replacement of flooring. Ronald LeClair, Regal's project manager, then performed a walk through of the area. LeClair stepped onto a joist in order to point to a wall, but was unaware that the joist had been freshly painted. LeClair then slipped and sustained personal injury. Prior to the commencement of Regal's work, INSCORP issued a commercial general liability policy to Regal that provided additional insured coverage. The policy provided for additional insured coverage "only with respect to liability arising out of [Regal's] ongoing operations performed for that [additional] insured." Regal and INSCORP commenced an action for a declaratory judgment against URS and its insurer, National Union, in an effort to avoid any obligation to provide coverage to URS. The Supreme Court held that INSCORP was obligated to defend and indemnify URS in relation to LeClair's personal injury action. Regal and INSCORP appealed. The Appellate Division, Second Department, upheld the Supreme Court's decision. Specifically, the court reasoned that Regal had responsibilities that encompassed all of the demolition and construciton work to be done during the course of the project. As such, Regal's responsibilities under its contract with URS could not be separated from the cause of and occurrence of LeClair's incident. The Appellate Division indicated that the general nature of the operation in the course of which the injury was sustained should be the focus of a court's analysis of additional insured language as opposed to the precise cause of the accident. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05831.htm Previous Next Contact

News Turkish Repatriation Efforts to Shake Art World? October 2, 2012 < Back Share to: What's old is new again. Turkey (and all its prior iterations) has been at the forefront of Western history since Byzantium was founded in the 4th century. Its treasures have been seized from other lands and its treasures have been seized from it. Now, as this his NYT article makes clear, the Turks are in seizure mode. They have commenced legal efforts to "take back" treasures of antiquity from their current Western occupiers, e.g. the Met, the Louvre and the Boston Museum of Fine Arts. Can insurance claims be far behind? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ Court Finds That Endorsement Limiting Scope of “Coverage Territory” Governs February 18, 2021 < Back Share to: The interplay between various endorsements in a policy is not always clear. This is especially the case where multiple endorsements state they are “replacing” the same provisions. A New Jersey federal judge rejected an attempt by an insured to expand coverage beyond the scope of the policy’s plain terms. In so doing, the court reaffirmed that a policy endorsement’s restriction of coverage to a specified location cannot be overridden by another endorsement which does not alter, or otherwise refer to, that aspect of coverage. In FYT Supplies, the insured FYT was a tattoo parlor, which operated out of a location in Brooklyn. Its insurance policy contained a Limitation of Coverage Endorsement provision which stated that the Policy applied only to bodily injury that “[o]ccurs on the premises shown in the Schedule,” which in turn only listed the insured’s location in Brooklyn. In 2018, while at a trade show in the Meadowlands in New Jersey, one of the FYT’s employees was injured while moving certain equipment. The employee sued FYT and FYT sought coverage, which was denied by its insurer. In the ensuing declaratory judgment action, the insurer argued that there was no coverage based on the Limitation of Coverage Endorsement. In other words, because the injury did not occur on the Brooklyn premises listed in the Schedule, but in New Jersey, there was no coverage for FYT in the underlying action. FYT sought to avoid this straightforward application of policy language by pointing to the Policy’s New York Changes Endorsement. That endorsement modified the coverage grant of the Policy and states that coverage exists for bodily injury that takes place in the “coverage territory,” defined to mean anywhere in the United States. FYT thus argued that this language superseded the Limitation of Coverage Endorsement. The court rejected FYT’s arguments, holding that the Limitation of Coverage Endorsement governed, and thus the insurer’s liability was confined to injuries that took place at the insured’s location in Brooklyn. The court noted that the New York Changes Endorsement does not impact the scope of coverage in any way. Thus, the court held that “the language of the New York Changes Endorsement is inserted into a policy which also lists and explicitly incorporates the Limitation of Liability Endorsement.” The court also noted that, perhaps unsurprisingly given its potential impact, no court had yet addressed FYT’s arguments. However, the court held that “[r]eading the … Policy and the endorsements as a whole, it becomes clear that there is only one modification to the precise section at issue, and that modification is contained in the Limitation of Coverage Endorsement. [FYT’s] interpretation would render it meaningless.” While the outcome of the FYT decision seems obvious, it nonetheless affirms the notion that a court will not render certain policy provisions meaningless and frustrate the purpose of the language to which the parties agreed. 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 Plaintiff's 241(6) Claim For Asbestos Exposure Unsupported By Industrial Code Part 12 Regulations February 25, 2009 < Back Share to: To mount a 241(6) claim, it must be properly supported by a violation of a concrete provision of Industrial Code, part 23. In Nostrom v. A.W. Chesteron Co., plaintiff commenced a wrongful death action due to plaintiff's decedent's exposure to asbestos in the workplace. While plaintiff's complaint was pursuant New York State Labor Law 241(6), she solely relied upon two Industrial Code, part 12 regulations, 12 NYCRR 12-1.4(b)(3),(4) and 12-1.6(a). The landowner and general contractor defendants successfully moved for summary judgment in the trial court. On appeal, the Appellate Division, First Department, affirmed the lower court's decision, ruling that it is the provisions of part 23 of the Indutrial Code that serve as the predicate for Labor Law 241(6) claims. The Court found that the Industrial Code part 12 regulations that plaintiff relied on do not support an action for owner/contractor vicarious liability under Labor Law 241(6) since part 12 ("Control of Air Contaminants") gives no indication either that it was enacted pursuant to Labor Law 241(6) or that it contemplates owner/contractor vicarious liability. Moreover, the Court held that part 12 regulations cited by plaintiff were not sufficiently specific to support a Labor Law 241(6) claim for asbestos-related injury. Thanks to Robin Green for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_00581.htm Previous Next Contact