Wade Clark Mulcahy LLP

Results Speak for Themselves We are litigators who think practically not abstractly. We are trial lawyers who understand coverage and coverage lawyers who try cases. We are advisors who help you manage your risk. PRACTICE AREAS Our Practice Areas OUR VISION What sets Wade Clark Mulcahy apart Wade Clark Mulcahy LLP attorneys represent clients who rely upon our success as advocates and our practical, results oriented advice and recognized expertise as trial and appellate lawyers across a broad spectrum of insurance, commercial and coverage matters. While we practice from our offices in New York City, New Jersey, Pennsylvania, Long Island, Florida and Louisiana, our clients regularly call upon us to manage risk in jurisdictions across the country. Our growth has been driven by client referrals. ATTORNEYS Latest News

Latest News Button September 6, 2024 Read More Notice of Claim Pitfall: New York Appellate Court Confirms That Original Deficiencies Cannot Be Corrected With §50-h Hearing Testimony Notice of Claim Pitfall: New York Appellate Court Confirms That Original Deficiencies Cannot Be Corrected With §50-h Hearing Testimony Button September 6, 2024 Read More Recent New York Decision Highlight the Importance of Documenting Condition of Property During Utility Work Recent New York Decision Highlight the Importance of Documenting Condition of Property During Utility Work Button September 6, 2024 Read More FLORIDA’S NEW YEARS RESOLUTION: Complying With Amendments To Rules of Civil Procedure Promoting Active Case Management FLORIDA’S NEW YEARS RESOLUTION: Complying With Amendments To Rules of Civil Procedure Promoting Active Case Management Button September 4, 2024 Read More Jury Sides With The Mouse Against Disney Adults In VIP Club Lawsuit Jury Sides With The Mouse Against Disney Adults In VIP Club Lawsuit Button August 30, 2024 Read More Literally Blinded to a Latent Danger Literally Blinded to a Latent Danger Button August 30, 2024 Read More Recovery Under Labor Law 240(1) Requires Establishing Proximate Cause of Injury Recovery Under Labor Law 240(1) Requires Establishing Proximate Cause of Injury Button August 30, 2024 Read More WARNING: Possible Spoliation Ahead WARNING: Possible Spoliation Ahead Button August 23, 2024 Read More Unlocking Coverage: The Key Role of Occupancy Determination Unlocking Coverage: The Key Role of Occupancy Determination Button August 23, 2024 Read More Labor Law § 240(1): Tighter Rules, Less Wiggle Room for Defendants Labor Law § 240(1): Tighter Rules, Less Wiggle Room for Defendants Button August 23, 2024 Read More Appellate Division Holds Plaintiffs Need No Contemporaneous Quantitative Measurements to Defeat Defendant’s Claim of No “Serious Injury” Under Insurance Law Appellate Division Holds Plaintiffs Need No Contemporaneous Quantitative Measurements to Defeat Defendant’s Claim of No “Serious Injury” Under Insurance Law Button August 23, 2024 Read More It Came Out of Nowhere! The Doctrine of Sudden Emergency It Came Out of Nowhere! The Doctrine of Sudden Emergency Button August 23, 2024 Read More Bad Faith Claim Stands Where Insurer Allegedly Ignored Evidence Bad Faith Claim Stands Where Insurer Allegedly Ignored Evidence Button August 23, 2024 Read More When is a Defect Considered “Trivial”? When is a Defect Considered “Trivial”? Button August 16, 2024 Read More Give Me Shelter Give Me Shelter Button August 16, 2024 Read More Duty of Care as to Open and Obvious Dangers is not always Open and Obvious Duty of Care as to Open and Obvious Dangers is not always Open and Obvious Button August 16, 2024 Read More SDNY Holds Coverage for Insured’s “Work” Does Not Include Design, Sale, and Manufacture of Asbestos-Containing Products SDNY Holds Coverage for Insured’s “Work” Does Not Include Design, Sale, and Manufacture of Asbestos-Containing Products Button August 9, 2024 Read More Storm in Progress Defense Rejected Where Weather Records Are Not Certified Storm in Progress Defense Rejected Where Weather Records Are Not Certified Button August 9, 2024 Read More New York Appellate Court Reminds the Bar that Unexcused Law Office Failures Are Not Enough to Vacate a Default New York Appellate Court Reminds the Bar that Unexcused Law Office Failures Are Not Enough to Vacate a Default Button August 9, 2024 Read More Appellate Court Rejects Defendant’s Proximate Cause Defense in Labor Law Lawsuit Appellate Court Rejects Defendant’s Proximate Cause Defense in Labor Law Lawsuit Button August 9, 2024 Read More Competent Medical Evidence Required to Establish a “No Serious Injury” Defense Under New York Insurance Law § 5102(d) Competent Medical Evidence Required to Establish a “No Serious Injury” Defense Under New York Insurance Law § 5102(d) Button August 3, 2024 Read More Plaintiff Did Not Use Their Lanyard on a Scaffold…It’s The Defendants’ Fault Anyway Plaintiff Did Not Use Their Lanyard on a Scaffold…It’s The Defendants’ Fault Anyway Button August 3, 2024 Read More Appellate Division Discusses Jury Instructions on increased Susceptibility and Failure to Mitigate Damages Appellate Division Discusses Jury Instructions on increased Susceptibility and Failure to Mitigate Damages Button August 1, 2024 Read More Even Drunk Driving Cannot Break the Causation Chain of a Highway Defect Even Drunk Driving Cannot Break the Causation Chain of a Highway Defect Button August 1, 2024 Read More WHO’S THE BOSS?: How The Workers Compensation Law Protects The Employer Who ‘Controls and Directs’ An Employee WHO’S THE BOSS?: How The Workers Compensation Law Protects The Employer Who ‘Controls and Directs’ An Employee Button August 1, 2024 Read More Conditional Discovery Orders: Flexible Timelines, But Non-Compliance Means Game Over Conditional Discovery Orders: Flexible Timelines, But Non-Compliance Means Game Over Load More

News Notice of Claim Pitfall: New York Appellate Court Confirms That Original Deficiencies Cannot Be Corrected With §50-h Hearing Testimony September 6, 2024 < Back Share to: ​ To maintain the right to file a tort lawsuit against a municipality or public corporation in New York, a claimant must serve a Notice of Claim within 90 days of the date of the loss pursuant to General Municipal Law §50-e. The notice must contain certain information to allow the municipality to properly investigate and assess the claim, and the failure to timely provide such information can be fatal to a subsequent lawsuit. The Second Department recently addressed these issues in Behrens v. Town of Huntington . In that case, plaintiffs alleged that they sustained injuries while slipping on a gangway leading to floating docks. Both plaintiffs served separate but similar notices of claim near the end of the 90-day period, with the notices describing the incidents but lacking detail about the location and cause. Four months after serving the notices, the plaintiffs testified at a §50-h hearing and subsequently filed a personal injury action, claiming their falls were due to defects or substances on the gangway. The Town moved to dismiss the claims, arguing that the notices failed to provide the specific information required under GML §50-e(2). The Supreme Court agreed and granted defendants motion, dismissing the lawsuit with prejudice. The Second Department affirmed, holding that plaintiffs’ initial 90-day notices were not only inadequate but that a court cannot use a General Municipal Law §50-h hearing to amend or supplement the initial claim. The Court observed that a Notice of Claim is designed to allow municipalities to investigate and assess the claims and must include: i) the nature of the claim, ii) the time, iii) the place, and iv) the manner in which the claim arose. For effective notice, the municipality must be able to "locate the place, fix the time, and understand the nature of the accident," particularly for roadways and walkways due to their “transitory nature.” The Court also observed that when considering a motion to dismiss as to a Notice of Claim, courts may review not only the notice itself but also any additional evidence presented. However, the additional evidence cannot be used to alter the fundamental nature of the claim or introduce new allegations. The Court concurred with the lower court’s decision that the original Notices of Claim did not adequately describe the location and cause of the incidents and the §50-h hearing testimony could not rectify these deficiencies. The Behrens decision highlights the importance of evaluating the sufficiency of information provided in Notices of Claim served under the General Municipal Law and confirms that deficiencies cannot be cured with subsequent testimony in a §50-h hearing. Municipal defendants should move to dismiss a complaint where the information provided was not sufficient as a matter of law. Behrens v. Town of Huntington .pdf Download PDF • 234KB Previous Next William A. Healy IV William A. Healy IV Associate +1 332 345 4186 whealy@wcmlaw.com Contact

News Recent New York Decision Highlight the Importance of Documenting Condition of Property During Utility Work September 6, 2024 < Back Share to: ​ As a best practice, property owners in New York should keep records concerning the condition of their property to mitigate potential premises liability. This is particularly true where utility work is taking place on the property or an adjacent sidewalk. Even when facing a seemingly questionable lawsuit, unless an owner can document the condition of its property and the work being performed, property owners face an uphill battle in dismissing a complaint. This issue was addressed in the Second Department’s recent decision in Samodurova v. Consolidated Edison Co. of N.Y., Inc. In that case, the plaintiff was injured when she allegedly tripped and fell over the edge of a metal plate that was located over an opening in the sidewalk near a Quick Check convenience store in Brooklyn. Con Edison was performing work on the sidewalk and had placed the metal plate over the opening. Two of the defendants, Fratelli Realty and Quick Check, moved for summary judgement showing that they did not own, create, maintain, or use the subject metal plate. The Supreme Court agreed and granted the motions. The Second Department affirmed, finding that the defendants demonstrated, prima facie, that Con Edison was responsible for the plate based on testimony showing that Con Edison opened up that plate to run power cables and photographs showing the plate with Con Edison’s logo. The defendants also pointed to testimony showing that the defendants kept the sidewalk in good repair and that none of their employees directed or assisted Con Edison’s sidewalk work. Accordingly, the Court found that the Supreme Court had properly granted the defendants’ motion for summary judgment. This decision highlights several important risk management practices for property owners. The first is to document the condition of property and adjacent sidewalks before, during and after utility work, particularly if the work itself creates a potentially dangerous condition. Owners should also avoid having any involvement in the work to avoid potential liability arising from the work. Taking these steps could provide the basis for a dismissal of premises liability lawsuits. Samodurova v. Consolidated Edison Co. of N.Y., Inc. .pdf Download PDF • 1.02MB Previous Next Alexander Rabhan Alexander Rabhan Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News FLORIDA’S NEW YEARS RESOLUTION: Complying With Amendments To Rules of Civil Procedure Promoting Active Case Management September 6, 2024 < Back Share to: ​ Effective January 1, 2025, every civil case filed throughout Florida’s twenty judicial circuit courts must adhere to a new procedural framework that stresses strict compliance with deadlines and establishes exacting standards to be met by any party seeking to modify or extend them. Even before Florida’s courts were awash with cases filed on the eve of comprehensive tort reform legislation being enacted and the courts were backlogged with Covid-era cases, Chief Justice Canady established the Workgroup on Improved Resolution of Civil Cases in 2019, with the aim of “promot[ing] the fair and timely resolution of civil cases.” In Re: Amendments to Florida Rules of Civil Procedure (Fla. 2024). Under the new amendments, within 120 days of a complaint being filed, the court will now assess the case to determine the amount of judicial attention expected to be required for its resolution and assign it to one of three case management tracks: streamlined, general or complex. The lion’s share of cases will be classified as “general.” The court will issue a case management order with a projected or actual trial period and establish deadlines for service, adding new parties, completing fact and expert discovery, resolving all objections to pleadings and pretrial motions and completing court-ordered alternative dispute resolution. The deadlines established by the case management order must be strictly enforced and are only able to be modified by court order. The court may set, either on its own notice or on proper notice by a party, case management conferences at any time. Attorneys appearing at such conference must be prepared to address all pending matters in the case, have authority to make representations to the court and enter into binding agreements concerning motions, issues and scheduling. The court may sanction any party for failing to appear at a case management conference by dismissing the action, striking the pleadings, limiting proof or witnesses or imposing any other sanction it deems appropriate. To modify a deadline, amend a case management order or alter a projected trial period, a motion must specify the basis for the extension and the time at which the basis became known to the movant. The motion must also specify whether the extension is agreed by the parties, the specific date proposed for the extended deadline or projected trial period, and the action and timetable that will enable the movant to meet the proposed deadline or trial period. Motions to continue trial “are disfavored and should rarely be granted and then only upon good cause shown.” Id . A motion for continuance must be filed promptly upon the need arising for the continuance. Such a motion must certify that the movant made a reasonable effort to confer with opposing counsel. The failure to do so may form the basis for sanctions. The motion must be made in writing and state the basis for the continuance and the time at which the basis became known to the movant and whether the continuance is agreed by the parties. The motion must also identify the action and dates needed to be trial ready and include dates for third-party witnesses’ and/or expert witnesses’ availability; the specific date proposed for trial and whether that date is opposed. The motion must be signed by the named party requesting such relief. This new rubric requires counsel to be even more vigilant in actively advancing the defense of their clients or risk sanctions from the court. Previous Next Justine Elias Justine Elias Senior Associate 561 232 2587 jelias@wcmlaw.com Contact

News Jury Sides With The Mouse Against Disney Adults In VIP Club Lawsuit September 4, 2024 < Back Share to: ​ At a time when Disney’s legal team is in the news for all the wrong reasons, the House of Mouse has won a victory against a couple who claimed they were improperly removed from the roll of the Mega-Exclusive private Disneyland social club, Club 33. Club 33 is a semi-secret, exclusive club for high-net-worth Disney adults. Located in Disneyland’s New Orleans Square behind an unassuming blue door lies a members-only dining room and lounge where the VIPs mingle and filming is prohibited. Membership in Club 33 is reported to come with a $50,000 initiation fee, along with a more than $15,000 annual fee per person. This is, of course, on top of regular admission to the famously expensive park. Despite this cost, interested parties can wait more 15 years to get accepted into the lofty ranks. Scott and Diana Anderson became members of Club 33 in 2012 after being on the waiting list for nine years. As reported by the LA Times , the couple had made the Club the center of their social life. They brought friends, acquaintances, and business associates. As a couple, they claim to have gone on the Haunted Mansion ride nearly 1,000 times. The couple reportedly spent close to $125,000 annually on Disney outings. It is no surprise then, that when Scott and Diana Anderson were unceremoniously dropped from the ranks in 2017, the couple attempted to rejoin the ranks by any means necessary. This expulsion occurred after Scott was found one night outside California Adventure slurring, having difficulty standing, and smelling of alcohol. This was not this the first time that the couple had run afoul of Club 33. In August 2016, the couple were temporarily suspended when Diana caused a disruption in the Club 33 restaurant, shouting and using profanity. The couple were alerted in writing at that time that “if another infraction of the Club 33 Rules/Guidelines occurs, the Club 33 Membership will be subject to termination.” Accordingly, when Scott was found, apparently intoxicated, their membership was promptly revoked. After Disney refused to allow the couple to rejoin the ranks of Club 33, the couple brought a lawsuit in December 2017 in the Superior Court of Orange County, captioned Carlton Enterprises, Inc. v. Walt Disney Parks & Resorts U.S., Inc. The couple claimed that Scott was not intoxicated, and was instead suffering from the symptoms of a vestibular migraine. This condition can be triggered by red wine – one of the 3 drinks Scott admits to having that day. The couple argued that their expulsion amounted to discrimination for Scott’s medical condition. In their complaint, the couple demanded reimbursement for unused membership time in 2017, along with $231,000 – the equivalent of seven years in the club. Disney responded, and cited the Club 33 Guidelines: “Club 33 Membership is a privilege and not a right; therefore, immediate termination may be deemed as an appropriate step to resolve an issue after review of the matter by Club 33 Administration. There will be no refund of either the initiation fee or annual dues in the event of the termination of Club 33 Membership account.” The Guidelines forbid members of Club 33 from public intoxication in Disney parks. The case made it before a jury last month, where Disney continued to state that the Andersons were expelled in accordance with the Club 33 Guidelines. The jury sided with Disney in the matter, rejecting the claim that the expulsion was improper. After the verdict, Scott spoke with the LA Times. “My wife and I are both dead set that this is an absolute wrong, and we will fight this to the death. There is no way we’re letting this go.” The couple has spent $400,000 on the suit to date, but say that they will appeal the verdict. We understand Mickey could not be reached for comment. Previous Next Emily C. Walpole Emily C. Walpole Associate 332 345 2226 ewalpole@wcmlaw.com Contact

News Allstate’s “Collapse” Provision is Sturdy on Appeal (NY) April 3, 2019 < Back Share to: The Second Circuit recently ruled, across three similar cases, that the collapse provision within an Allstate Insurance Co. policy doesn’t cover the cost of fixing cracking in a home’s basement walls due to a defective concrete foundation. This ruling affirmed a lower Court’s decision to deny coverage to three Connecticut homeowners. Three cases filed by Allstate Policy Holders were the first of their kind to reach the federal appellate court. The basis for the lawsuits were Allstate’s denial of coverage pursuant to a clause that disclaims coverage for incidents that stem from faulty concrete used to pour the foundations for thousands of homes in Connecticut. Those homes foundations are now slowly collapsing and the cost of repair is significant. A panel of the Second Circuit held “the collapse provision in the Allstate homeowner’s insurance policy at issue here does not afford coverage for basement walls that exhibit signs of deterioration but that have not collapsed suddenly, accidentally, and entirely, as required by the policy.” The cases are Valls v. Allstate Insurance Co., case number 17-3495; Nancy E. Carlson et al. v. Allstate Insurance Co., case number 17-3501; and Alan D. Lees et al. v. Allstate Insurance Co., case number 18-007, all in the U.S. Court of Appeals for the Second Circuit. The cases serves as a reminder to homeowners and brokers to carefully read a policy of insurance during the procurement process, and the bring potential issues regarding concerning clauses to light with the broker or carrier before agreeing to the policy. Easier said than done, but here, the exclusionary language in the policy was clear. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Reality or Wishful Thinking: Is the Admitted Market About to Get Hammered? February 15, 2011 < Back Share to: The softness of the current insurance market has impacted everyone. One specific way in which it has impacted the E&S market is that admitted carriers (to increase premium intake) have underwritten risks that usually reverted to the E&S market. Some professionals believe that the worm is about to turn as the admitted carriers flee the newly written risks because of bad loss ratios -- http://www.insurancejournal.com/news/national/2011/02/10/184165.htm. The question is -- when? And to that question, no-one knows the answer. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Sometimes More is Less– Prisoner’s Subpoena is Quashed for Overbreadth (NY) January 11, 2017 < Back Share to: The Western District of NY recently quashed an inmate's subpoena of two non-party witnesses in Cooper v. Hill, in an attempt to obtain documentation of his own whereabouts during and after a prison riot. The Court quashed his subpoena, finding his request was overbroad, seeking propensity evidence. Cooper arose in 2012 when an inmate sued corrections officers and the Five Points Correctional Facility for assault, and for failing to provide him with medical treatment. Cooper claims to have been assaulted by several corrections officers both during a prison riot in the recreational yard and a few hours later, in the prison showers. During discovery, the Defendants' incomplete documentation left a "gap" with regard to Cooper’s whereabouts for six hours after the prison riot ended including medical treatment records of that day. In an attempt to clarify where Cooper was in the hours after the riot, Cooper subpoenaed documents including log sheets, grievance records, documents resulting from the intimate riot and “all internal investigations that occurred.” The Correctional Facility moved to quash, citing that compliance with the subpoena would require thousands of documents, as the subpoenas also included phrases like “all documents from any person.” The Court found the subpoena relevant, but nevertheless quashed it because it sought production of materials that did not pertain directly to Cooper’s whereabouts, and was out of proportion to their usefulness to Cooper’s claims. The Court’s ruling demonstrates the extreme importance of properly tailoring subpoenas and discovery requests in general. In the event a subpoena results in motion practice, a properly tailored subpoena is much easier to defend before the court. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

Bruce A. Magaw Of Counsel New Jersey +1 973 258 1700 bmagaw@wcmlaw.com Professional Experience A true veteran of the courtroom, Bruce Magaw brings more than 35 years of trial experience to his work defending clients against claims in both state and federal court, including high-value cases involving construction defects and severe bodily injury, as well as professional negligence, premises liability, products liability and automobile negligence cases. He has litigated some of the largest and most complex civil lawsuits in the state of New Jersey, tried numerous cases to verdict and defended those verdicts before the Appellate Division and the Supreme Court of New Jersey. Bruce also provides strategic evaluation of coverage and litigates coverage disputes involving third-party commercial, general liability and property insurance. He also advises insurance companies on a wide variety of issues involving coverage and claims handling. Before joining WCM, Bruce was a partner in a prominent New Jersey law firm. Prior to becoming a litigator, he clerked for the Honorable Joseph Scancarella, J.S.C., the first Presiding Judge of the Civil Division, New Jersey Superior Court, Passaic County. In addition to his work on behalf of clients, Bruce coaches a local high school mock trial team. Honors and Distinctions Martindale-Hubbell 2021 list of AV Preeminent lawyers. (A description of the selection methodology can be found at martindale.com/ratings-and-reviews/ . No aspect of this advertisement has been approved by the Supreme Court of New Jersey.) Moravian College Cum Laude Professional Activities Hunterdon County Bar Association Middlesex County Trial Lawyers Association Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. Seton Hall University School of Law B.S. Moravian College Bar Admissions New Jersey Court Admissions District of New Jersey

Jason Laicha Associate Pennsylvania +1 267 239 5526 jlaicha@wcmlaw.com Professional Experience Jason Laicha assists with a wide variety of civil litigation, defending clients against general liability claims concerning property damage, premises liability, construction defects, automobile negligence, and personal injury. Additionally, Jason assists with advising insurers on a wide variety of coverage matters. Jason’s work includes reviewing complex insurance policies to determine the obligations of insurance companies in the wake of bodily injury or property damage and analyzing the impact of contracts for indemnification. Prior to joining WCM, Jason worked with the office of general counsel for a local school district, a boutique business law firm in Philadelphia, and one of the nation’s top consumer protection firms. In addition to the greater Philadelphia area, he has also lived and worked in Dublin, Ireland. Professional Activities Member of the Philadelphia Association of Defense Counsel Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Temple University – Beasley School of Law B.B.A., Villanova University – Villanova School of Business Bar Admissions Pennsylvania New York

News A “Feigned Issue Of Fact” Not Sufficient To Defeat Summary Judgment (NY) October 28, 2021 < Back Share to: In Fonck v. City of New York, 2021 NY Slip Op 05693 (2021), while plaintiff was trying to retrieve his pliers, laying approximately five feet away from him, he allegedly tripped and fell on a concealed piece of pipe underneath plastic sheeting, causing him to fall and sustain injuries. The Supreme Court, Kings County had granted defendants’ motion for summary judgment dismissing plaintiff’s causes of action alleging violations of Labor Law §200 and §241(6), and common-law negligence. Upon appeal, the Second Department reversed with respect to common Law negligence and Labor Law §200 but affirmed the dismissal of the Labor Law §241(6). With respect to his Labor Law §241(6), Second Department held that defendants established prima facie that 12 NYCRR 23-1.7(d) relating to slipping hazards, was inapplicable. Despite the affidavit of plaintiff’s foreman submitted describing the work as “wet and slippery due to recent rainfall,” plaintiff did not contend that the slipper condition was related to the accident. As such, plaintiff only raised a feigned issue of fact, and his affidavit contradicted his earlier deposition testimony submitted by defendants that his fall was caused by the concealment of the pipe. So, despite the inconsistent testimonies submitted by both parties to be a “feigned issue of fact,” it was not enough to warrant dismissal of summary judgment. This case is a good example of a plaintiff attempting to muddy the waters and create a disputed material fact – but the Court determined that the “fact” was not material. Thanks to Gina Rodriguez for her contribution to this post. If you have any questions, please contact Matthew Care. Previous Next Contact