News The Passage Of Time Not Enough To Establish Notice. May 14, 2009 < Back Share to: In Kramer v. SBR & C, the plaintiff claimed that she slipped and fell on food that had fallen to the floor in a catering hall. The plaintiff claimed that after the cocktail hour ended, an employee of the defendant moved the food table off the dance floor. Approximately 45 minutes later, as she was dancing on the dance floor, the plaintiff fell and noticed several strawberries were crushed on the floor. The plaintiff claimed that the strawberries fell from the table moved 45 minutes before the accident, thereby providing the defendant's with ample notice of the condition. The Second Department held that the defendants were entitled to summary judgment because the plaintiff did not see any strawberries fall from the table to the floor prior to her accident, nor did her husband, who had watched the employee move the table. Finally, summary judgment was appropriate because the plaintiff was not aware of anyone else who was injured as a result of the strawberries or of any complaints pertaining to the strawberries on the floor. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03699.htm Previous Next Contact

News Commercial Landlord Protected by Indemnification and Risk Transfer Clause in Lease (NY) March 25, 2022 < Back Share to: New York General Obligations Law Section 5-321 provides that every agreement in connection with the lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor in the operation or maintenance of the real property shall be deemed void as against public policy. In other words, a tenant cannot agree to indemnify his or her landlord for the landlord’s own negligence in a lease in New York. There is an exception, however, allowing for the indemnification of a lessor’s negligence where the lease involves sophisticated commercial parties, negotiating at arm’s length, who agree to allocate the risk of liability between themselves, typically through insurance. The Supreme Court of New York, Bronx County, recently addressed these issues in a case involving a commercial tenant. In Titumir v. Barker Ave Estates LLC, plaintiff leased the first floor of the subject premises and sold discount hardware supplies. The lease agreement provided that plaintiff was responsible to maintain and repair the premises, fixtures, and appurtenances. In July 2017, water began to leak from the apartments above the store and the ceiling eventually collapsed, causing damage to the store, plaintiff’s goods, and an alleged loss of business. Plaintiff sued the landlord, claiming that it failed to comply with its nondelegable duty to maintain the premises and make repairs. The court disagreed and granted defendant’s motion for summary judgment based on the lease provision requiring plaintiff to maintain and repair the premises. The court held that this provision exempts defendants from any liability arising from the water leak and that since this claim involved a commercial tenancy, the lease falls within the exception to General Obligations Law Section 5-321. The court also noted that a rider to the lease required plaintiff to purchase insurance for property damage, making it clear that the parties intended to allocate risk to a third party, the insurance company. The Titumir case reiterates the law in New York that landlords and tenants are free to allocate the risks associated with commercial tenancy, including passing the risk on to the parties’ insurers. Indemnification and insurance language in such leases is important and usually dictates who bears the exposure for property damage or premises liability in the commercial setting. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Expensive Vinegar: Jury Awards $12 Million to Collector in Bogus Wine Case (NY) May 3, 2013 < Back Share to: Typically, when an auction buyer winds up with a fake item, they have little recourse under the "caveat emptor" principle. Both the auction house and seller typically issue disclaimers that state they do not guarantee the authenticity of a particular item. But recently, energy magnate Bill Koch scored a huge trial victory against fellow wine collector Eric Greenberg. Koch claimed that 24 of the 17,000 bottles of Greenberg's wine that he purchased in an auction were not the valuable collectibles they purported to be but instead were fake. Koch alleged that after he purchased the wine, he learned that Greenberg had previously been told by experts that some of the bottles had been identified as counterfeit. Despite knowing this information, Greenberg placed them into auction without disclosing their questionable identity. Greenberg claimed he did not know any wines sold were fake and that it was the responsibility of the auction house to determine whether there were any authenticity issues. But Koch presented witnesses that said Greenberg was aware since 2002 that his cellar contained counterfeit wines, and a former house manager testified that Greenberg told him he planned to resell them. A jury found in Koch's favor, awarding him $379,000 in compensatory damages and $1,000 per bottle. Upon further deliberation, the jury awarded Koch $12 million in punitive damages. Apparently, the litigation cost Koch $10 million, so it is not quite the windfall it appeared to be, but still a lot better outcome then being stuck with bogus wine. For more information, please write to Mike Bono.     Previous Next Contact

News What’s "Exceptional" about a Late Notice to a Public Entity in NJ October 4, 2012 < Back Share to: The New Jersey Tort Claims Act is the New Jersey Legislature’s answer to the State courts’ attempt to abrogate common law sovereign immunity. This legislation permits certain tort actions against public entities, but it places significant limitations on a plaintiff. One of those limitations is a requirement that a potential plaintiff give the public entity notice of the claim before filing suit. To this end, a claimant must file a Notice of Claim with the public entity within 90 days of accrual of the claim to permit it time to investigate and, perhaps, resolve it. But what happens when a plaintiff fails to file in 90 days? The statute says that the claimant must then show exceptional circumstances to permit a late notice. What exactly qualifies as exceptional circumstances is a matter in that the New Jersey Supreme Court recently took up oral argument of D.D. v. University of Medicine and Dentistry of New Jersey. In D.D. , the plaintiff sought to file a claim when her AIDS status was revealed despite her expectation of privacy of this confidential information. She wrote to UMDNJ to demand that it stop disseminating the information. She also contacted an attorney who met with the school to address the situation. However, the attorney never filed a notice of claim. The plaintiff followed up with the attorney, but he did not take her calls. After 90 days expired, she sought out a new attorney. The Supreme Court justices grilled UMDNJ’s counsel on the issue of exceptional circumstances and whether attorney negligence is "ordinary" "these days." Justice Albin noted the plaintiff’s poor health and unsuccessful efforts to reach her counsel. Albin suggested that an average person would not know about the 90-day deadline. UMDNJ’s counsel pointed out that the current state of the law is that ignorance of law is not sufficiently exceptional. We’ll have to wait to see whether the Supreme Court agrees. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Everything I Needed to Know I Learned in Kindergarten. August 28, 2009 < Back Share to: To assist in the training of the next generation of greatest Americans, Americans fully versed in reality television skills, a Florida elementary school allegedly held a Survivor style vote to decide whether a kindergartner should stay or go. Unfortunately, for the young boy, his classmates voted him "out" because, among other things, he ate crayons, paper and "boogers." A lawsuit against the school, but thankfully not the other 5 year olds, has resulted. http://www.law.com/jsp/article.jsp?id=1202433408562&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20090828&kw=Mom's%20Suit%20Claims%20Son%20Voted%20out%20of%20Kindergarten Previous Next Contact

News PA Court Admits BAC Result Without Corroborative Witness October 20, 2017 < Back Share to: In Pennsylvania, to guard against undue prejudice in civil cases, evidence of a party’s mere alcohol consumption is inadmissible absent evidence that reasonably shows intoxication. In respect of Blood Alcohol Concentration results, courts found to provide that “[BAC] alone may not be admitted for the purpose of proving intoxication,” but must be accompanied by “other evidence showing the actor’s conduct which suggests intoxication.” The reasoning was that someone may have alcohol in their system but not be impaired. This issue was at the forefront of Coughlin v. Massaquoi, where Thomas Coughlin, was killed while walking crossing the street when defendant Ummu Massaquoi crashed into him with her car. Defendant Massaquoi was driving in the left lane of the four-lane road and admitted that she did not see Coughlin prior to the impact. After Coughlin was transported to the hospital and pronounced dead, the autopsy and toxicological testing revealed that Coughlin had a BAC of .313%. Other than this post-mortem BAC result, there was no direct evidence presented to the jury of Coughlin’s intoxication—such as witness testimony that he appeared drunk. Instead, an expert testified as to impact of that BAC level on an average person. Although a jury trial found the defendant negligent, it also determined her negligence was not the factual cause of Coughlin’s death. Plaintiff appealed, alleging the court erred by admitting evidence of Coughlin’s BAC without independent, corroborative evidence of his intoxication. The issue for Pennsylvania’s Supreme Court was whether expert testimony interpreting a BAC result constitutes “other” evidence under Pennsylvania case law, or, if independent eyewitness testimony of intoxication is required before admitting a pedestrian’s BAC. The Court modified the previous standard and held BAC evidence is admissible if the trial court determines that it reasonably establishes a pedestrian’s unfitness to cross the street. The defendant met this standard as she presented an expert who testified to the significant impact a .313% BAC would have on the average person’s coordination, judgment, and self-control—concluding Coughlin was thus unfit to cross the street. There is no doubt that an important factor in the outcome was the near-poisonous level of alcohol in the pedestrian’s blood, and failing to admit it under such circumstances would have led to a very unfair outcome. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Decedent Killed Sitting On Subway Tracks, A.D. Dismisses Case And Plaintiff's Expert March 5, 2008 < Back Share to: In Mirjah v. New York City Transit Authority, plaintiff brought an action for wrongful death and personal injuries stemming from a July 15, 2000 accident whereupon plaintiff's decedent was struck and killed by a subway train. Directly before his death, the decedent was determined to be intoxicated and was observed sitting on the tracks, facing the oncoming train, that was coming around a curve in the rain. The trial court denied defendant's motion for summary judgment, apparently giving credence to the mathematical theory of Nicholas Bellizzi, plaintiff's expert, that the defendant's operator could have stopped the train without hitting the decedent. The Appellate Division, Second Department reversed, finding Mr. Bellizzi's conclusions to be "merely speculative" and unable to raise a triable issue of fact. http://www.nycourts.gov/reporter/3dseries/2008/2008_01722.htm Previous Next Contact

News Don’t Skip Steps – Motion for Summary Judgment Denied as Premature Where Discovery as to the Key Issue is Incomplete < Back Share to: In New York, a defendant has several options in seeking to dismiss a civil lawsuit – a motion to dismiss or a motion for summary judgment. Generally, a motion to dismiss challenges the legal sufficiency of a complaint while a summary judgment motion challenges the merits of the case. While summary judgment can dispose of some or all claims in a lawsuit with prejudice, courts are hesitant to award such relief where the parties have not completed discovery relevant to the issues. For example, in Knowles v 21-43 27th St., a United States Postal Service employee was injured while delivering mail at the defendants’ apartment building when a mailbox receptacle fell on her. After some discovery had been completed, defendants moved for summary judgment on the basis that they had no actual or constructive notice of the allegedly hazardous condition. The Queens County Supreme Court denied the motion. The Second Department affirmed but amended the Order to add that the motion was denied “as premature, without prejudice to renewal following the completion of discovery.” In so holding, the Court noted that a party who contends that a summary judgment motion is premature is required to demonstrate that “discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant." The Court found that the plaintiff was able to demonstrate that further discovery, including production of postal records and a deposition of plaintiff’s former coworker, may result in the disclosure of evidence on the issue of notice so the motion was indeed premature. Knowles serves as a reminder that summary judgment will not be awarded where discovery as to the issue at hand is outstanding, particularly where the key facts are only known to an adverse party. At a minimum, parties should have an opportunity to complete the necessary fact-finding before a court will consider summary judgment. Knowles v. 21-43 27th St LLC .pdf Download PDF • 684KB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News Homeowner Could be Liable for Social Guest's Voluntary Intoxication and Death (NY) July 3, 2019 < Back Share to: Decedent and defendant were friends for 25 years, celebrating defendant’s new home, when after a night of (prescription) drugs and alcohol, the decedent drowned in defendant’s hot tub. Prior to the accident, decedent ingested a Xanax before going out to dinner with defendant. At dinner, the decedent had four beers, followed by a glass of wine and Ambien, upon returning. Approximately 30 minutes later, while in the hot tub, the decedent asked for another glass of wine. As the defendant returned inside, leaving decedent alone in the hot tub, the decedent drowned. The decedent reportedly had a blood alcohol level of .25 at the time it was analyzed. The decedent was suffering from cancer prior to her death and was taking certain medications as a result. In the case at bar, the defendant moved for an order granting summary judgment in her favor. The court established that a finding of negligence must be based on a breach of duty, a standard of conduct that a reasonable person would exercise under similar circumstances. Therefore, the issue before the Hon. Antonio I. Brandveen of the Nassau County Supreme Court was whether the defendant owed a duty of care to the decedent. Courts in New York “have never imposed a common law duty to protect a person from her own voluntary intoxication." Furthermore, New York has “refused to recognize a common law cause of action for injuries against those who provide alcoholic beverages.” As a friend, the defendant owed a moral duty to protect the decedent from her own voluntary intoxication, not a legal duty. However, the court recognized that “a landowner must act as a reasonable person in maintaining her property in a reasonably safe condition.” This duty is based on the landowner’s control over her property and, as such, being in the best position to identify and prevent harm to others. Because the decedent was a guest in the defendant’s home, the defendant was in a position to reasonably exercise supervision and control over the use of her property. Moreover, the defendant was aware that the decedent was under the influence of drugs and alcohol. Therefore, the defendant owed a duty of care to the decedent as a landowner according to the decision in Estate of De Leo v. Bauman. The defendant successfully established her prima facie case to dismiss the complaint. As a provider of alcohol, the defendant had no duty to protect the decedent from injuries resulting from her own voluntary conduct. As the burden shifted to the plaintiff, the plaintiff successfully established that an issue of fact remained as to “whether the defendant breached her duty as a landowner.” The hot tub owner’s manual stated that “the use of alcohol, drugs, or medication before or during the use of the hot tub, may lead to unconsciousness with the possibility of drowning.” The owner’s manual also stated that those “under the influence of drugs, alcohol, or medication, should not be allowed into the hot tub.” Thus, by permitting the decedent to use the hot tub, knowing she was under the influence of alcohol and drugs, an issue of fact remained as to whether the defendant breached her duty as a landowner. Because a triable issue of fact remained as to whether the defendant breached her duty as a landowner, to take reasonable steps to prevent harm to the decedent while she she was a guest on defendant’s property, the defendant’s motion for summary judgment was denied. We would expect an appeal of this decision. Check back for any further treatment of the case in the future. Previous Next Contact

News NJ Court Allows Insurer to Withdraw Defense During Discovery February 12, 2009 < Back Share to: In Polarome International, Inc., v. Greenwich Insurance Company and Zurich Insurance Company, the New Jersey Appellate Division reaffirmed that insurers may disclaim coverage during the course of an underlying lawsuit when discovery reveals the claim is not covered. Plaintiff was sued by employees exposed to toxic torts over a number of years, and plaintiff’s insurers accepted the defense under a reservation of rights. During the underlying litigation, the insurers disclaimed coverage after obtaining information that the alleged losses occurred outside the policy period. The Appellate Division held that an insurer may use extrinsic facts to go beyond the pleadings to determine that there is no coverage, and that an insurer is only estopped from withdrawing from a defense that it initially assumed if the insurer was aware of evidence indicating that the claim was not covered and failed to notify its insured promptly that it was reserving its right to withdraw. Thanks to Mendel Simon for his contribution. http://lawlibrary.rutgers.edu/decisions/appellate/a0566-07.opn.html Previous Next Contact

News App. Div: Nightclub's Use Of Stanchions May Have Created Sidewalk Defect April 30, 2010 < Back Share to: In Harris v IG Greenpoint Corp., the plaintiff tripped and fell because of a claimed sidewalk defect that was approximately 15-18 inches from the curb line outside the entrance to the China Club. Although the China Club was the tenant and not statutorily responsible to repair the sidewalk, the plaintiff argued that the club used the sidewalk to allow its patrons entrance and also cordoned off a portion of the sidewalk using heavy metal stanchions. The club filed an immediate motion to dismiss for failure to state a cause of action. While the lower court granted the motion, the appellate court reversed stating that the plaintiff's allegations that the cracks emanated from the club’s nightly dragging of the stanchions raised an issue of fact as to whether the China Club created the claimed hazardous condition. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_03478.htm Previous Next Contact

News Anatomy of a Trial Gone Wrong... Was It Really Worth $2 Million (NJ) January 21, 2016 < Back Share to: A rear end hit, a thirty-five year old plaintiff with a history of two prior accidents in a nine year period, alleged bulging disc at L2-L3 with radiculopathy, treatment with physical therapy and four epidural injections, arbitration award of $40,000, rejection of plaintiff's $30,000 offer of judgment ... Middlesex jury award $2 million. What happened? A lot, according to the New Jersey Appellate Division. The Berkowitz v. Soper trial got off to the wrong start for the defense when the defendant driver was hospitalized two days before the start of the trial due to a heart issue. The trial judge denied the defense counsel's request for an adjournment. The plaintiff's opening statement then stepped over the line of fair comment when he suggested that the defendant might be available to testify and what she might say if she did. In fact, of course, she was not available and, in any event, would not have said what he told the jury. Plaintiff's counsel also suggested that his client required surgery, despite knowing that he had no expert to testify as to such. As the trial progressed, the errors accumulated. The plaintiff described a significant impact that jostled him and the contents of his car. As she was in the hospital, the defendant was not available to dispute his account of the accident. If she had been present, she would have told the jury that she had been stopped at a light. After the plaintiff began to move, he stopped abruptly causing the accident. She would have authenticated photos of her car that showed no physical damage. The plaintiff seemingly testified freely, despite the judge's admonitions, and offered essentially expert medical testimony about his injury, his treatment, his need for surgery, and his suicidal thoughts. No expert was offered to back up much of his testimony. The plaintiff's wife testified about her husband's conditions. She improperly told the jury that he would have turned down $10,000,000 to not have the kind of pain he had. The jury deliberated just about 1.5 hours. The judge denied defendant's motions for a new trial and remittitur. He found that the plaintiff's age and socioeconomic status warranted the $2 million award. The appellate division, while recognizing the deference to be given to the trial judge, respectfully disagreed. Painstakingly outlining the numerous trial errors, the appellate court found that the "trial was saturated with incompetent, inadmissible opinion testimony from plaintiff that irreparably tainted the jury's ability to reach a sustainable verdict." What will the next jury conclude? For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact