News NY Court of Appeals Limits “Readily Available” Safety Device Defense March 2, 2010 < Back Share to: In Douse v. City of New York, et.al, the plaintiff claims she tripped and fell on "a piece of metal sticking out of the concrete". In this regard, the plaintiff stated "the first time” that she observed the piece of metal was one month after the alleged accident when she returned to the scene with her attorney. The defendant moved for summary judgment on the grounds that plaintiff could not identify what caused her fall, which was fatal to her claim. Contrary to established case law, the Supreme Court, Kings County, denied the defendant’s motion. However, on appeal, the Second Department refused to allow the lower court to resuscitate this fatal flaw. The Second Department held that “a trier of fact would be required to base its finding of proximate cause on pure speculation” and dismissed the plaintiff's claim. Thanks to Edward Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00921.htm Previous Next Contact

News New Jersey Skiers Beware of the “Season Pass” March 23, 2012 < Back Share to: In Dearnley v. Mountain Creak, plaintiff purchased a season pass to Mountain Creek Ski Resort in 2008. As part of the application process, plaintiff signed an agreement fully releasing Mountain Creek from any and all liability for personal injury. While visiting Mountain Creek in January 2009, plaintiff suffered serious injuries and subsequently filed suit against Mountain Creek. Oddly, plaintiffs then re-applied for a season pass several months later and signed a “Season Pass Waiver” agreeing to release all claims that they may have had against Mountain Creek. The court granted Mountain Creek’s motion for summary judgment based on the 2009 waiver finding that plaintiff surrendered the right to maintain the suit in exchange for the benefits afforded to season pass holders. Plaintiff appealed claiming that the contract entered into was one of adhesion and contrary to public policy. The Appellate Division noted that contracts will ordinarily be enforced as written. Avoidance of such a contract requires clear evidence of mistake that is so grave as to make enforcement of the contract unenforceable. Because plaintiff gained a benefit from holding the season pass, and that the terms were not one-sided, the trial court’s decision was affirmed. Under these circumstances, the plaintiff’s ‘releasor’s remorse’ was not sufficient to remand the matter. http://www.judiciary.state.nj.us/opinions/a5517-10.pdf Thanks to Andrew Marra for his contribution to this post.       Previous Next Contact

News Defense Duty Triggered by Bill of Particulars (NY/NJ) July 22, 2016 < Back Share to: An insurer's duty to defend is generally governed by the allegations in a complaint, but whether or not extrinsic evidence -- or information later revealed during discovery -- can be used when making a coverage determination differs greatly from state to state. A New York court (applying New Jersey law) recently dealt with the issues of whether facts in a Bill of Particulars triggered coverage in CB Richard Ellis, Inc. v Harleysville Ins. Co. of N.J. In this case, the underlying complaint alleged that the plaintiff fell on the sidewalk due to ice and snow. Harleysville’s insurance policy had an exclusion for claims related to the removal of snow and ice, so they disclaimed coverage, and during the ensuing lawsuit, moved for summary judgment based upon the exclusion. The trial court denied the motion and instead granted the plaintiff's cross-motion. On appeal, the Court noted that the underlying complaint also alleged general negligence in the ownership, operation, management, maintenance and control of the premises and/or sidewalk where the accident occurred. The bill of particulars then explained these allegations by claiming that the insured was negligent by failing to safeguard, cordon off or provide warning signs in the unsafe, slippery area of the accident. Thus, the allegations in the underlying complaint, as amplified by the bill of particulars, did not all arise out of ice and snow removal and the trial court found for coverage. As a result, the First Department upheld the decision requiring coverage. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Homeowner’s Exemption To Labor Law Liability Applies To Mixed Use Building (NY) July 16, 2021 < Back Share to: It would not be uncommon for any New Yorker on any given day to run into a bodega or small store for a random needed item. It would also not be uncommon for that bodega or small store to also house a family of people, usually the owner of the business itself. However, when operating a business in a space also used jointly for residential purposes, the waters become murky when it comes to liability for work that is contracted to be performed on the premises. The issue here is whether the homeowner exemption of the N.Y. Labor Law §§ 240(1) and 241(6) applies to home business-owners who use their space jointly used for both residential and commercial purposes. Framers of this legislation, particularly taking in mind a city like New York ripe with small business owners with little to no resources, could not have wanted excessive litigation or liability to fall on every homeowner operating a small business inside their home. This statute was arguably created to protect these homeowners who are unable to lease space in an office building and are, instead, forced to make good with what they have. With this in mind this Court must look to the underlying purpose of the homeowner exemption, which is to shield small-property owners from exclusive liability. Specifically, the Court of Appeals in Anderson v Flanagan found that even though the defendant homeowner in that case operated a commercial business from her home she was still shielded from strict liability by the homeowner exemption. Anderson, 210 A.D.2d 955; see also Bartoo v. Buell, 87 N.Y.2d 362, 369. In that case, defendant Flanagan was the owner of a one-family dwelling where she resided and also operated a daycare five days a week. Flanagan hired out workers to add a bedroom and install a sliding glass door from the bedroom to the backyard on the first floor of her two-story home where she also ran her daycare business. Plaintiff Thomas Anderson, one of the employees contracted to perform work at the premises, was injured when he attempted to get down from the roof. The court in that case held that Flanagan, an owner of a one-family dwelling who did not direct or control the work was exempt from liability under Labor Law §§ 240(1) and 241(6) because the owner contracted for work that directly related to the residential use of the home, even if the work also served a commercial purpose. Moral of the story? If you are a the owner of a one-family dwelling that is used jointly for both residential and commercial purposes, when in doubt just contract it out! Thanks to Tristan Montaque for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Defendants’ Conflicting Accounts Held Fatal To Their Summary Judgment Motion (NY) December 2, 2022 < Back Share to: When moving for summary judgment in a New York negligence action, the moving defendant has the burden of establishing, prima facie, that he or she was not at fault in the happening of accident. Evidence of fault on the part of the defendant can defeat the motion and can come from the defendant’s own proofs. For example, in Charles v. American Dream Coaches, a vehicle operated by plaintiff collided with a bus owned by one of the defendants. Plaintiff pleaded guilty to the traffic offense of driving or operating a motor vehicle in an unsafe manner but still sued the bus owner and driver. The Supreme Court granted defendants motion for summary judgment and plaintiff appealed. The Appellate Division, Second Department reversed, citing the general rule regarding a defendant’s summary judgment burden and finding that defendants had “failed to establish, prima facie, that they were free from fault in the happening of the accident.” In so holding, the court observed that the defendants had submitted conflicting accounts of how the accident happened and failed to eliminate triable issues of fact as to their fault. The Court also held that the fact that the plaintiff pleaded guilty to a traffic offense did not conclusively establish that she was negligent and that a person who pleads guilty to a traffic offense is permitted to explain the reasons for the plea to a jury. The Charles case serves as a reminder that summary judgment is not appropriate where evidence of a defendant’s fault exists, and that care should be taken to avoid submitting conflicting evidence in connection with such a motion. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Federal Court upholds $188 million Verdict in Defamation Case (NY) May 7, 2010 < Back Share to: Jose Cantu is an oil titan from Mexico, who made a dramatic rise from a laborer to an owner of oil refineries. Billy Flanigan, a businessman and President of a Bahamian corporation, obtained a judgment against a Mexican petroleum workers union. Despite never having met Cantu, Flanigan believed that Cantu had connections with the Mexican government that would assist in his efforts to collect the judgment, and Flanigan engaged in a course of conduct designed to pressure Cantu into either paying Flanigan the judgment, or using his influence to help Flanigan collect from the union. Flanigan prepared an “amicus brief” that resembled a legal complaint, listing Cantu as a defendant and declaring that Flanigan sought monetary damages. The “amicus brief” stated that Cantu was the operations manager of a racketeering enterprise, and that he had laundered large sums of money. It further alleged that Cantu had participated in the bribery of government officials and that Cantu was present when Mexican President Zedillo was awarded a $350 million bribe. The “amicus brief” also alleged that Cantu was involved in drug cartels, that he headed the “Ramiro Garza crime family,” that he illegally smuggled oil into the United States, that he had conspired with Iraqi President Saddam Hussein to illegally circumvent sanctions against Iraq and that he was personally responsible for causing the price of gasoline to rise. Flanigan ultimately accused Cantu of having committed mail fraud, wire fraud, tampering, obstruction of commerce, unlawful travel, theft by conversion and extortion. Flanigan provided details from his brief to a reporter from the popular and widely-circulated Mexican magazine Processo, and the magazine printed an article about Cantu. The story was featured on the front cover, and it repeated Flanigan's allegations against Cantu. Due to the wide circulation of Processo magazine, Flanigan's accusations were distributed throughout the world. A potential business partner learned of the allegations contained in the Processo article and immediately cancelled a multi-million dollar contract, resulting in a personal loss to Cantu of roughly $35,000,000. Cantu also introduced evidence that the damage to his reputation had resulted in an inability to secure other multimillion dollar contracts. In addition to affecting Cantu's personal and business relationships, the Processo article also prompted criminal investigations by the Mexican government and the United States Department of Justice – but Cantu was ultimately cleared of any potential wrongdoing. Cantu filed suit in the Eastern District of New York, and a jury awarded him $38,000,000 in economic damages and $150,000,000 in non-economic damages to compensate Cantu for the harm to his reputation and the humiliation and mental anguish caused by Flanigan. In determining whether the judgment was excessive, the Court needed to determine whether the award deviated materially from reasonable compensation, using prior awards as not binding but instructive. In calculating non-economic damages in a defamation case, including humiliation, mental suffering and damage to plaintiff's reputation, a jury may properly consider a number of factors. In this case, the jury was instructed to consider: [1] the plaintiff's standing in the community, [2] the nature of defendant's statements made about the plaintiff, [3] the extent to which the statements were circulated, [4] the tendency of the statement to injure a person such as the plaintiff, and [5] all of the other facts and circumstances in the case. The Court analyzed each of the above factors, and also considered the fact that Flanigan engaged in a deliberate course of conduct tantamount to attempted criminal extortion, and affirmed the judgment - perhaps the largest defamation judgment in US history. Whether Canto can ultimately collect on his judgment remains to be seen, but I certainly doubt he will create his own "amicus brief" to assist in his collection efforts. If you have any questions, please write to mbono@wcmlaw.com Previous Next Contact

News Condo Board Gets Owned For Labor Law §240 Claim August 3, 2016 < Back Share to: New York’s Labor Law §240 imposes strict liability as to property owners with respect to elevation related injuries. In Jerdonek v 41 W_ 72 LLC, the First Department grappled with how to define an owner of the common elements in a condominium building. In Jerdonek, the plaintiff was injured in a fall from a scaffold while working in the boiler room of a residential apartment building on the Upper West Side of Manhattan. Plaintiff fell from an improperly constructed scaffold and the evidence on the record demonstrated that plaintiff was not provided with proper safety equipment. The appellate panel agreed that the plaintiff was entitled to summary judgment under Labor Law §240, and the appellate court majority ruled that liability applied to the condominium’s Board of Managers. The issue was whether the plaintiff could also maintain a Labor Law claim against the development sponsor who retained ownership interest in some units in the building at the time of the injury when control of the building’s common elements had passed to the Board of Managers some six years prior. In determining that plaintiff’s valid labor law claims should not stand against the condominium’s sponsor or the individual unit owners, the majority opinion held that the conversion of the building to a condominium placed its common elements “solely under the control of the [condominium's] board of managers” pursuant to the Condominium Act, which “recogni[zes] that the board exercises exclusive control over the common elements.” Under these circumstances, the First Department granted summary judgment in favor of the sponsor, 41 West 72 LLC and dismissed the claims under Labor Law §§ 240(1) and 241(6) as against it. At the same time, because the record established that the board of managers was the proper party to be sued as owner of the building’s common elements, the court went one step further and granted plaintiff summary judgment as to liability on his claim under § 240(1) as against the board upon a search of the record. The court felt that the decision was sound despite the fact that 41 West 72 LLC had retained ownership of some units in the building since its conversion to a condominium. Each unit owner — including the sponsor of the condominium conversion— owns an undivided fractional interest in the real property comprising the condominium's common elements. However, a unit owner's ownership interest in the condominium's common elements does not give rise to liability, whether for common-law negligence or under the Labor Law, because the condominium declaration transfers complete and exclusive control of the common elements to the Board of Managers. In essence, the unit owners, though they collectively own the common elements, are divested of the powers and responsibilities of ownership with respect to those elements. The majority reasoned that barring the claim against the sponsor also protects and maintains the expectations of the individual unit owners of condominiums. “If the sponsor of condominium conversion could be sued on a post-conversion cause of action arising from the common elements based on the sponsor's continued ownership of unsold units, it would follow that each individual unit owner could be sued on exactly the same ground.” Even if the sponsor, at the time the claim arose, continued to own a sufficient number of units to enable it to control the condominium's Board of Managers, the majority’s analysis would not change. According to the opinion, which relied on a previous decision of the same court, plaintiff cannot sue all of the individual unit owners on the ground that the owners collectively control the board of managers, absent a showing that the condo lacked a functioning and adequately capitalized Board of Managers at the time of plaintiff's accident. Ultimately, the majority found that the board is the proper owner for labor law purposes on a claim arising from an accident in an area that was under the exclusive control of the board of managers, despite the fact that the only deed recorded evinces the condo’s sponsor as the only titled owner of the building. In dismissing the statutory claims against the titled owner, the majority claimed that the dissent’s argument was “sharply at odds with the expectations of buyers of condominium units, who are led to believe that risks and liabilities arising from the common elements will be handled on their behalf by the board of managers.” Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Beyond the Statute of Limitations: Insured’s Lawsuit Found Timely by Middle District of Pennsylvania (PA) October 26, 2018 < Back Share to: The Middle District of Pennsylvania recently ruled that an insured’s breach of contract lawsuit against his auto insurer was not barred by the applicable four-year statute of limitations. In Legos v Travelers Casualty Company of Connecticut, the Court denied Travelers Casualty Company’s (“Travelers”) Motion for Summary Judgment against the breach of contract claim brought against it by Ronald Legos (“Legos”). The lawsuit arose out of a car accident between Legos and Willard Grasavage (“Grasavage”) in which Grasavage’s underinsured car collided with Legos’ automobile. As a result, Legos suffered serious personal injuries and initiated a third-party lawsuit against Grasavage on April 29, 2005. Additionally, on August 29, 2009, Legos filed an underinsured motorist claim with Travelers. On March 7, 2012, Legos and Grasavage entered into a settlement release for the amount of $75,000.00. Over four years later, on April 23, 2016, Legos received a letter from Travelers stating that the statute of limitations on his underinsured motorist claim had expired and that Travelers’ was closing his underinsured motorist file. As a result, Legos asserted a breach of contract claim against Travelers. In response, Travelers filed a Motion for Summary Judgment claiming that the four-year statute of limitations period for breach of contract cases had run and Legos’ lawsuit was untimely. The key issue in this matter was when the statute of limitations period started. Travelers’ argued that the statute of limitations period began when Legos signed the settlement release with Grasavage, on March 7, 2012. However, Legos claimed that the statute of limitations period began when he received the letter from Travelers advising him that the statute of limitations of his underinsured motorist claim had expired on April 23, 2016. The Middle District of Pennsylvania agreed with Legos and ruled that the statute of limitations began to run when Travelers issued the letter to Legos, not when Legos entered into the settlement release with Grasavage. The Court focused on the Erie Insurance Exchange v. Bristol decision in reaching its decision. In Bristol, the Pennsylvania Supreme Court held that the statute of limitations begins to run on an insurance case when the insurer is alleged to have breached its duty under the insurance contract. In Bristol, as in a majority of other jurisdictions, it is the accrual of the right of action that commences the statute of limitations period to run. Thus, a statute of limitations begins to run from the moment a potential plaintiff has a complete and present cause of action. In contrast, Travelers relied on the argument that Bristol only applied to uninsured motorist benefits claims and not to underinsured motorist claims, such as the one at issue. The Court rejected Travelers’ position, stating that it was clear that the Bristol opinion repeatedly referred to uninsured and underinsured motorist claims collectively and did not distinguish the two at any point. Therefore, the Court determined that the Bristol decision clearly applied under these set of facts. The Court held that the statute of limitations period commenced on April 23, 2016 and that Legos would have had until April 23, 2020 to file his underinsured motorist claim with Travelers. In so doing, the Court denied Travelers’ Motion for Summary Judgment and found in favor of Legos. Thanks to Zhanna Dubinsky for her contribution to her post. Please email Vito A. Pinto with any questions. Previous Next Contact

News "Regular Use" Exclusion Upheld in Auto Policy (PA) September 28, 2012 < Back Share to: In the recent case of Adamitis v. Erie Insurance Exchange, the Pennsylvania Superior Court enforced an insurer’s “Regular Use” exclusion despite the plaintiff’s argument that the provision violates public policy. In early October 2005, plaintiff Adamitis was involved in a serious motor vehicle accident with an underinsured motorist while in the course and scope of his employment as a bus driver for the Berks Area Reading Transit Authority. As a result, Adamitis sought UIM coverage from Erie, but his claim was ultimately denied on the basis of a “Regular Use” exclusion which bars coverage for “bodily injury arising from the use of a non-owned motor vehicle or a non-owned miscellaneous vehicle regularly used by the insured” though not specifically identified in the policy. Unsurprisingly, Adamitis disagreed with his insurer’s coverage decision and brought suit against Erie in the Philadelphia Court of Common Pleas. The lower court, however, affirmed Erie’s decision in a bench trial citing the exclusion’s clear and unambiguous language. On appeal, Adamitis argued to the Superior Court that, among other things, the “Regular Use” exclusion violates public policy and conflicts with the Motor Vehicle Financial Responsibility Law of Pennsylvania. However, the Superior Court was likewise unconvinced by Adamitis’ contention and instead explained that the public policy behind UIM benefits is driven by the correlation between premiums paid and the coverage the claimant should reasonably expect to receive— nothing more. Accordingly, the appellate court reasoned that failure to enforce the “Regular Use” exclusion would run afoul of Pennsylvania’s public policy by requiring insurers to underwrite unknown risks for which theyhave not been paid. Thus, at least with respect to UIM insurance coverage, the Adamitis court reiterated that you get what you pay for in Pennsylvania. Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com       Previous Next Contact

News Court of Appeals Avows Partial Indemnification October 22, 2008 < Back Share to: In Brooks v. Judlau Contracting, Inc., plaintiff ironworker employed by third-party defendant Thunderbird Constructors, Inc., fell 18 feet due to a safety cable improperly installed by Judlau, the general contractor. With no grave injury sustained by plaintiff, both the trial court and appellate court dismissed Judlau's third-party complaint for contractual indemnification as it was deemed unenforceable due to Judlau's active negligence. The Court of Appeals reversed this decision. Answering the question left open in Itri Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 89 NY2d 786, 658 N.Y.S.2d 903 (1997), the Court of Appeals found that §5-322.1 of the General Obligations Law allows for partial indemnification so long as the indemnification provision does not purport to indemnify a party for its own negligence. http://www.nycourts.gov/ctapps/decisions/oct08/147opn08.pdf Previous Next Contact

News No Christmas Miracle for Plaintiff, Falling Garland is Not a Foreseeable Risk (NY) December 22, 2017 < Back Share to: Bah humbug… Christmas shopping is fraught with danger or so alleged a plaintiff who claimed to have been snared by holiday garland. In Parke v. Dollar Tree, Inc., the plaintiff testified that while taking down garland from a display, she felt a snag on the garland and, sensed additional "stuff" starting to fall. When she started to move her feet to avoid the decorative avalanche, she fell. Plaintiff further testified that she did not trip over anything and was not struck by anything before she fell, nor did she strike anything on the way down as she fell. In opposition to defendant's motion, plaintiff submitted defendant's Holiday Sales Planner and Stocking Procedural Manual. She also submitted an affidavit of an expert witness — a retail sales merchandising specialist, consultant and planner — who attested to the proper, correct and safe way to install, stock and display consumer products and merchandise for sale to the public in retail stores. Nevertheless, the Third Department ultimately reasoned that "foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated". The Court found that Dollar Tree met its burden in establishing, as a matter of law, that it was not reasonably foreseeable for plaintiff to be injured while taking down garland. As such, the burden shifted to plaintiff to raise a triable issue of fact. Ultimately, the Court found that plaintiff’s testimony and expert affidavit failed to demonstrate how the location and stocking of the garland presented a foreseeable risk. Therefore, plaintiff failed to raise a triable issue of fact that plaintiff's injury was reasonably foreseeable. The Supreme Court found that there was "nothing about the nature of packages of garland falling from above that would lead a reasonable person to foresee said garland knocking a person to the ground and/or breaking a person's wrist." Finally, the doctrine of res ipsa loquitur did not apply because "the doctrine cannot be used where, as here, the defendant against whom the doctrine is asserted owes no duty in connection with the mechanism that caused the injury" Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Co-Defendant Granted MSJ: Don’t Despair, Change Venue! (NY) October 30, 2013 < Back Share to: Venue can play a substantial role in any case. This is particularly so in New York, where there is not only a substantial difference in jury-make-up across the jurisdictions, but differences in the law amongst the four Appellate Division Departments. Under CPLR 503, venue is proper in the county in which one of the parties resides when the action was commenced. For corporations, this would be their principal place of business. A wise plaintiff, facing an unfriendly venue, may sue a party with tenuous liability just to obtain a more favorable venue. Although this may be proper at the outset, once that defendant is dismissed from the case, there may be no other grounds to support venue in that county. Such was the case in Whelton v. Dayton Beach Park No. Corp. In Whelton, the Supreme Court granted one of the defendant’s motions for summary judgment. That defendant’s principal place of business was the only basis for plaintiff’s suit in Kings County. So once that defendant was dismissed, the remaining defendants moved to change venue to Nassau County, a far more favorable defense jurisdiction. The Supreme Court denied the motion, but the Second Department reversed. It held that since the only party in the action whose presence supported venue in Kings County, the Supreme Court should have transferred the case to Nassau County. Special thanks to Gabe Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact