Wade Clark Mulcahy LLP

News The Light at the End of the Tunnel? NY State Bar Association Creates Group to Help Law Firms Re-open May 1, 2020 < Back Share to: With the current state of New York amidst COVID-19, and the wheels of justice always spinning, one major question every attorney is asking, is when will their office re-open? The New York State Bar Association (“NYSBA”) wants an answer that question sooner rather than later. On March 20, 2020, Governor Andrew Cuomo issued the "New York State on Pause" Executive Order (EO 202.8). Under Gov. Cuomo's March 20th order, non-essential workers, including lawyers, are required to work from home. However, with recent reports of infections dropping, the governor has talked about a phased re-opening of specific sectors of the economy. On April 29, 2020, The New York State Bar Association announced the creation of "Restarting the Economy Working Group," which will be tasked with making recommendations on how to bring lawyers and staff back to their offices as soon as possible. Members of the new group are comprised of prominent attorneys from some of the biggest law firms in the world. The state group will consult with a wide range of officials, from law firm managers to health and labor experts, to help guide law firms and policymakers with the most efficient way for law firms to re-open while keeping everyone's health a top priority. The creation of the advocacy group tells us one thing during these uncertain times – the New York State Bar Association is cognizant of the unprecedented issues the legal profession is facing and has taken a step forward to address the myriad concerns involving the health and safety of those employed by law firms. We look forward to hearing the recommendations made by the NYSBA as they become available. Thanks to Irving Fayman for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has four offices across three states, including in New York City, New Jersey, Pennsylvania and Long Island, and serves its clients in matters across the country. ​ WCM is a firm of trial lawyers who partner About Us Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has seven offices across six states, including in New York, New Jersey, Pennsylvania, Florida, Louisiana, and Texas and serves its clients in matters across the country. WCM is a firm of trial lawyers who partner with our clients to devise effective strategies to manage risk and to bring closure to complex matters as quickly as possible. And if the matter warrants, we stand ready to fight the end game – whether trial by jury or argument to an appellate bench. WCM is committed to maintaining our reputation for excellence and to letting our results speak for themselves. So, if you need help sorting out a legal mess, count on us. WCM solves defense and coverage issues cleanly, quickly and efficiently. About Us Best Practices Partner Participation A partner reviews all substantive correspondence, letters and reports to our clients, and reviews every dispositive motion before it is served and filed. Prompt Communication We respond to our client’s telephone calls or e-mails within 24 hours, if not sooner. Clients are immediately advised of arbitration dates, mediation dates and trial dates. Clients should never have to ask twice for anything. Top quality service to our clients is our shared vision. Result Driven Strategies We are not file processors or paper pushers. Our focus is on the end result and we execute a strategy designed to achieve our client’s goal. Every call, every letter, every analysis of every document in the file, and every discussion with the other side is undertaken as part of our mutual strategy. Attorney Accountability Files are not shuffled from associate to ass ociate. Whenever possible, the assigned attorney appears at the deposition or substantive court conference. When that cannot happen, our attorneys are still prepared to be the “answer person.” Best Practices

News Hungary Holocaust Art Claim Allowed to Proceed. September 7, 2011 < Back Share to: In what some experts are calling the largest unresolved Holocaust art claim, heirs of Baron Mor Lipot Herzog -- a well-known Jewish Hungarian art collector -- have commenced an action in federal court (District of Columbia) against the Republic of Hungary and various Hungarian museums seeking the return of over $100 million worth of art that they allege is rightfully theirs -- Complaint. The artworks -- which include a number of works by El Greco, Velázquez, Renoir and Monet -- were seized in the 1940’s by the Hungarian government which was an ally of Nazi Germany. In de Csepel v. Republic Of Hungary, the heirs allege that the infamous Adolf Eichmann inspected the art collection in Hungary and had some works shipped to Germany and allowed the rest to remain in Hungary. The suit raises a number of interesting legal issues regarding Hungary’s sovereign immunity and the relevance of a Hungarian court’s ruling that the heirs were not entitled to the artworks. An interesting allegation is that Hungary is pursuing other parties for the return of Nazi art - yet refuses to return this art to the heirs. We will continue to follow this interesting case. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please contact Mike Bono at mbono@wcmlaw.com Previous Next Contact

News Insurance Coverage Granted for Restaurant’s Loss of Business Income Caused by COVID-19 May 28, 2021 < Back Share to: By way of brief background, in response to the spread of COVID-19, the Pennsylvania Governor issued mandates and orders that required all non-life sustaining businesses in Pennsylvania to cease operations and close physical locations, and citizens to stay at home. Due to these mandates and the spread of COVID-19, the plaintiff, Macmiles, LLC D/B/A Grant Street Tavern (“MacMiles”), suspended its business operations and submitted a claim to the defendant, Erie Insurance Exchange (“Erie”), under an all-risk ultra plus commercial general liability policy, which provides coverage for any direct physical loss or damage, unless the loss or damage is specifically excluded or limited by the policy. Erie denied MacMiles’ claim and, in response, MacMiles commenced a lawsuit in the Court of Common Pleas of Allegheny County seeking, inter alia, declaratory judgment with respect to the policy’s business income protection, civil authority and extra expense provisions. Subsequently, MacMiles filed a motion for partial summary judgment and, in response, Erie filed a cross-motion for judgment on the pleadings. After oral argument, the court granted, in part, MacMiles’ partial summary judgment motion and denied Erie’s cross-motion for judgment on the pleadings. First, the court granted MacMiles’ motion for partial summary judgment with respect to MacMiles’ claim for declaratory judgment that MacMiles is entitled to coverage under the policy’s income protection provision. To make this determination, the court looked to the plain language of the policy and noted, to establish coverage under the provision, MacMiles must establish it suffered “direct physical loss of or damage to” its property. MacMiles argued a reasonable interpretation of the phrase “direct physical loss of . . . property” includes the loss of use of its property; whereas, in contrast, Erie argued this phrase requires some physical altercation of or demonstrable harm to MacMiles’ property. Focusing on the word “or”, the court reasoned the phrase “direct physical loss of” had a different meaning than the phrase “direct physical . . . damage to”. With this in mind, the court conducted an in-depth analysis to determine the meaning of the terms “damage” and “loss” as the policy did not define every term in the phrase “direct physical loss of or damage to” property. Citing to their common usage and dictionary definitions – as considered through the context of the policy and specific facts of the case – the court concluded the term “loss” reasonably encompasses the act of losing possession and/or deprivation, which includes the loss of use of property absent any harm to property, while “damage” encompasses all forms of harm to property. As such, the court held MacMiles’ loss of use of its property was “direct” and “physical” as the spread of COVID-19 had a close relationship to the way MacMiles utilized its property and physical space. In other words, the court held the spread of COVID-19 caused physical loss to MacMiles. In doing so, the court rejected Erie’s argument that the spread of COVID-19 merely imposed economic losses thereby clarifying that actual physical harm to property is not always required. The court also rejected Erie’s argument that the policy’s Amount of Insurance Provision is inconsistent with the interpretation that “direct physical loss of . . . property” encompasses MacMiles’ loss of use of its property absent tangible damage. The court held the policy’s Amount of Insurance provision does not necessitate the existence of damaged or destroyed property or require repairs, rebuilding or replacement of damaged or destroyed property to entitle MacMiles to coverage. Rather, the provision merely imposes a time limit on the available coverage, which ends when MacMiles’ business is operating at normal capacity after any required rebuilding, repairs or replacements are completed, or twelve (12) months after the initial date of the loss. In granting this component of MacMiles’ motion, the court also noted its disagreement with Erie’s argument that the policy’s compliance with laws and ordinance exclusion barred coverage as the court reasoned MacMiles’ sought coverage for losses suffered in relation to the COVID-19 pandemic and the civil authority orders. In doing so, the court also stated, in a footnote, this exclusion could not have been intended to exclude coverage under the policy’s civil authority provision as it would make any extended coverage for the actions of civil authority illusory. Second, the court denied, without prejudice, MacMiles’ partial motion for summary judgment with respect to MacMiles’ claim for a declaration that the policy’s civil authority provision provides coverage for the losses MacMiles allegedly sustained as a result of the Governors’ orders to mitigate the spread of COVID-19. Specifically, the court determined, unlike the income protection provision, the policy’s civil authority provision does not provide coverage for the loss of use of property other than MacMiles’ property. As such, the court determined, to establish coverage under the civil authority provision, MacMiles must demonstrate COVID-19 was actually present on property other than its own property, such damage occurred within one mile of its property and the Governors’ orders were “taken in response to dangerous physical conditions resulting from the damage or continuation of the peril insured against that caused the damage, or the action is taken to enable a civil authority to have unimpeded access to the damaged property.” As the court determined genuine issues of material fact exist as to the foregoing elements, MacMiles’ motion was denied, in part. This decision is significant, as it seemingly provides plaintiffs with an avenue to obtain coverage for any losses sustained to their business as a result of COVID-19. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Obtains SJ For Property Owners in Construction Accident (NY) June 26, 2019 < Back Share to: New York State, unlike most other States, has strict liability statutes that impose absolute liability onto a property owner or general contractor under certain circumstances when a laborer is injured on their premises. Within that statute is an exemption carved out only for owners of one- or two- family homes who contract for, but do not control the work of the contractors. The purpose of this exemption is to protect one- or two- family homeowners who may not have experience in the field from liability wherein they have no actual involvement in the work. In Annunziata v. NY Specialty Infusion Services, et al Richmond County Index No.: 150160/2018, plaintiff Joseph Annunziata was allegedly injured while working as a mason on a complete renovation of the one- family dwelling owned by NY Specialty Infusion Services, a corporation created solely for ownership of the home. The principals and sole owners of the company and home, Mr. and Mrs. Shams, contracted with plaintiff’s employer Rock Solid for all work on the exterior of their private home. Mr. and Mrs. Shams were not present during the work, did not reside within the premises as the work was ongoing and would only visit the site periodically to check on the progress of the work and to make aesthetic decisions, such as paint colors or tile styles. The testimony of all parties, including plaintiff, showed that Mr. and Mrs. Shams did not have any involvement with the day to day direction or control of the jobsite or the work of the individual workers. Plaintiff testified that he had one conversation with the Shams wherein they discussed where the barbeque was to be placed in the built in patio kitchen. Plaintiff directed the Shams to speak with his supervisor and never spoke with them again. In opposition to the motion, co-defendant Bella Home Improvements argued that because the Shams hired plaintiff’s employer themselves, and could have stopped the work if they wanted to, they should be deemed a contractor and not only the homeowner for purposes of the Labor Law. The Court found that argument unveiling in that the statute expressly states that it protects those who contract for, but do not oversee or direct the work on the jobsite. Plaintiff opposed the motion claiming that the conversation about the barbeque or the Shams’ visits to the site to discuss paint colors were enough to be considered direction or control. The Court was similarly not persuaded by plaintiff’s argument and found that the Shams, through their company NY Specialty was entitled to the protections of the homeowner exemption and dismissed all claims against NY Specialty in their entirety. While the Labor Law is typically a death sentence for a property owner in New York, a homeowner still has a fighting chance to prevail if they truly were not involved in the day to day aspects of the work. To date, no party has appealed the Court’s decision. Congrats to Dana Purcaro on the victory. Please email Brian Gibbons with any questions. Previous Next Contact

News Lack Of Maintenance Records Leads To Denial Of Summary Judgment (NY) April 2, 2021 < Back Share to: In Smith v Montefiore Medical Center, 2021 NY Slip Op 01872 (1st Dept. 2021), the First Dept. reviewed a denial by the lower court of a defendant’s motion for summary judgment. Plaintiff alleged that he slipped and fell on dirty ice in front of the emergency room at the Montefiore Hospital. The spot of the fall was covered by a canopy. Montefiore moved for summary judgment, noting that two of its employees testified that snow and ice does not normally accumulate on the spot where plaintiff fell. One Montefiore employee testified that snow has not accumulated on that spot in his 48 years of employment, while another Montefiore employee testified that he had not seen any snow or ice there in his 13 years of employment. The employees testified as to the hospital’s general snow and ice removal procedures, but did not give specific testimony about when the last inspection occurred in that specific area. As you know, a plaintiff can prove constructive notice of a dangerous condition if they show that the condition existed at the location for a sufficient amount of time that the defendant could have reasonably inspected it and remedied the condition. The court determined that the denial of summary judgment was proper because Montefiore failed to submit evidence establishing that a dangerous condition did not exist prior to the accident. The court stated, “[a] showing of general cleaning procedures is insufficient to satisfy the burden of demonstrating lack of constructive notice.” Montefiore argued that it does not keep specific records for that location because it was not exposed to the weather. However, one of the defendant’s witnesses admitted that he did, on rare occasions, see snow on the spot where plaintiff fell, thus defeating Montefiore’s argument. This case highlights the difficulty for a property owner in proving a lack of constructive notice. For a summary judgment dismissal, a property owner must show conclusively that it had no actual or constructive notice of the dangerous condition. In almost all slip and falls involving rain and or snow/ice, a premises owner must be dutiful to keep precise records of inspections and maintenance on their property. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News How Far Does The Duty To Provide A Safe Worksite Extend? (NY) April 23, 2021 < Back Share to: In Potenzo v. City of NY, the Appellate Division, First Department addressed whether the plaintiff was entitled to partial summary judgment against the defendants City of New York and Tishman Technologies on the Labor Law § 241(6) claim. Plaintiff brought this cause of action against the defendants for personal injuries sustained when he fell on ice while walking on a path between “the fenced-in area from the security guard booth” and the worksite entrance. The question before the court was to determine if the path was considered a “walkway”. The court stated, “Labor Law § 241(6) imposes a nondelegable duty upon owners, contractors and their agents to provide adequate protection and safety for workers. To establish a claim under this section, plaintiff must allege that defendants violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct.” (citations omitted). The Appellate Division rejected the lower courts holding that 12 NYCRR 23-1.7(d) did not apply, which states, that no employee shall be allowed “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires the removal of any “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing.” The court held that “there are no issues of fact to preclude” summary judgment in plaintiff’s favor because: 1) the path plaintiff slipped on was between the security guard booth and the worksite entrance; and 2) it was one of two entrances to the worksite that was used by the workers and as such, the path plaintiff slipped on “clearly qualifies as a walkway within the meaning of 23-1.7(d).” This decision serves as a reminder that the duty upon owners and contractors to provide a safe worksite can extend to a walkway a worker uses even before entering the site. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Comparative Negligence Crushes Plaintiff’s Labor Law §241(6) Claims (NY) January 12, 2017 < Back Share to:   In Cardenas v 110127 Cabrini Apts. Corp., 2016 NY Slip Op 08835 (2d Dept. 2016), plaintiff was injured when the ladder he was using became unlocked, causing him to fall and sustain injuries. Plaintiff claimed that he notified his employer of the problem prior to the accident but was told to continue using the ladder anyway. Plaintiff commenced suit against the building owner and managing agent as all claims against his employer were barred by the Workers Compensation law. All parties moved for summary judgment. The lower Court granted plaintiff’s motion in its entirety and denied the defendants motions. On appeal, the Court held that plaintiff’s continued usage of the ladder, despite having knowledge of a defect, created a question of fact as to plaintiff’s comparative negligence. The Court determined that since plaintiff failed to meet his burden in showing that he was free from comparative negligence, that the defendants motions as to Labor Law §241(6)should have been granted and reversed the lower court’s decision. Though Labor Law §240 was still an issue in this case, the Court has shown that plaintiff must prove that he was free from fault to succeed under Labor Law §241(6) and that not all Labor Law provisions are slam dunks for plaintiffs. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NY Court Requires No Specificity Of Hazardous Condition In Premises Liability Case April 7, 2023 < Back Share to: In Diaz v. SCG 502, LLC, 2023 NY Slip Op 01779 (2d Dept. 2023), plaintiff alleged serious injuries from a slip and fall on an interior staircase in an apartment building. NY law permits dismissal of slip-and-fall cases if “the plaintiff did not know what caused the fall" (Lamour v. Decimus, 118 AD3d 851, 851; see Aleman v 760 8th Ave. Rest., Inc., 187 AD3d 1106, 1106; Kerzhner v. New York City Tr. Auth., 170 AD3d 982, 983). "[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (Rivera v. J. Nazzaro Partnership, L.P., 122 AD3d 826, 827; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 AD3d 1095, 1096). However, the New York appellate court recently let a plaintiff off the hook At her deposition, plaintiff testified she slipped and fell on a “wet step,” but did not know the precise type of liquid. While trial court granted summary judgment, the Second Department overturned that decision reasoning that the precise type of liquid was inconsequential to her claim of negligence of injury caused by a hazardous substance on a public space. Here, the defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. “Contrary to the defendant's contention, the plaintiff's alleged inability to identify the "precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall (Burrus v. Douglaston Realty Mgt. Corp., 175 AD3d 461).” The Second Department’s determination shows that a slip and fall on a wet surface does not require the claimant to specifically identify the hazardous substance that caused her to fall. Courts will allow a plaintiff to have her day in court so long as she can testify, generally, as to what caused her to fall in a premises liability claim. Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Too Few Judges in NJ? July 5, 2013 < Back Share to: Based upon the recent Supreme Court Order assigning judges in New Jersey, it appears that New Jersey’s state court judicial shortfall will continue. Essex, Camden and Monmouth Counties are all down judges – a reality that will make the pace of justice or the civil facsimile that we strive for all the harder to achieve. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Top Court Refuses to Hear Appeal of WCM's Win in $25 Million Art Loss May 8, 2013 < Back Share to: On May 7, 2013, New York’s highest court refused leave to appeal from the decision of the Appellate Division, First Department, unanimously affirming the trial court’s ruling that AXA Art Insurance Corporation was not obligated to indemnify Renaissance Art Investors LLC (RAI) for the loss arising out of the fraud of Larry Salander. Wade Clark Mulcahy persuaded the First Department to uphold the trial court’s decision that AXA’s policy exclusion for dishonest acts of the insured barred recovery. RAI consigned its artwork to the infamous art dealer Larry Salander, a principal of RAI, and the Salander O’Reilly Galleries. Salander and the Gallery ultimately betrayed RAI, stealing millions of dollars in artwork. Salander pleaded guilty to a $120 million fraud scheme, admitting to stealing numerous works of art. In its unanimous decision, the First Department ruled that AXA’s dishonesty exclusion was unambiguous. The exclusion precluded coverage for losses arising from the dishonest acts of an insured, anyone with an interest in the property, or anyone to whom the covered property was entrusted. The Court held that this policy exclusion applied to both Salander and the Gallery, who were entrusted with the artwork. The First Department also ruled, as a matter of law, that insurance coverage only extends to fortuitous losses, even under all-risk policies. The Court ruled that fortuity is a legal question to be resolved by a court. Applying this standard, the Court held that the fraud perpetrated by Salander and the Gallery was not fortuitous. Apart from upholding the so-called dishonesty exclusion in the inland marine policies, the ruling breathes new life into the doctrine of fortuity. Previous Next Contact

News Second Circuit Reaffirms Privity Requirement In Additional Insured Endorsement (NY) October 13, 2017 < Back Share to: It is easy for claims professionals, contractors, and others to look no further than an underlying contract when determining whether a tendering party qualifies as an additional insured. After all, when the promise to procure additional insured coverage is memorialized in a written contract, parties may expect the coverage to follow. Of course, the experienced professional knows that insurance policy language determines additional insured status, not an underlying contract. But it is important to carefully parse policy language as well, because even judges are capable of struggling with the application of clear policy language. One additional endorsement that often causes confusion in the construction, legal, and insurance industries is the additional insured endorsement requiring contractual privity. The Second Circuit recently addressed that issue in Cincinnati Insurance Company v. Harleysville Insurance Company. There, the injured claimant was the employee of a sub-subcontractor on a construction project who was injured while performing his job duties. After suit was filed, the general contractor’s insurer claimed its insured was an additional insured under the sub-subcontractors policy because the sub-subcontractor’s contract required it to name the general contractor as an additional insured. Like many policies, the sub-subcontractor’s policy contained a blanket additional insured endorsement. However, that endorsement conferred additional insured status on a third party “when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.” When the issue was presented to the trial court, it ruled that the general contractor was an additional insured because the underlying contract required that party to be named as an additional insured, but the Second Circuit reversed. Relying on relatively recent New York precedent, the Second Circuit reasoned that when interpreting the intention of parties to an insurance contract, courts are confined to the four corners of the policy, not extrinsic evidence such as underlying contracts. Because the policy required privity between the insured and purported additional insured, the general contractor was not an additional insured. Cincinnati should serve as a reminder to always start with policy language when analyzing rights and obligations under a policy. Even then, words are to be afforded their actual meaning. We expect this decision to widely cited going forward, to support the privity requirement in assessing AI status. Thank you to Michael Gauvin for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact