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News Landowner Not Liable For Hidden Defect In Fallen Tree January 8, 2009 < Back Share to: In Down v. Town of Oyster Bay, the Supreme Court of Nassau County recently held that a tree's internal staining and discoloration are not outwardly visible signs of a defect and, in doing so, granted the property owner summary judgment against the plaintiff’s claim that she was injured by the defendant’s falling tree. The court declined to impose a duty on a landowner to constantly check all trees for non-visible decay. Instead, the court held that a landowner is only required to take action if there are signs of decay or disease readily observable. http://decisions.courts.state.ny.us/10JD/Nassau/decisions/INDEX/INDEX_new/LALLY/2008DEC/001125-07.pdf Previous Next Contact

News Mt. Sinai WTC findings called into question. September 10, 2007 < Back Share to: NYT calls into question validity of Mt. Sinai findings in respect of 9/11 clean-up workers who allege exposure to toxins. According to Times, the extent and scope of the injuries may be grossly inflated. http://www.nytimes.com/2007/09/07/nyregion/07sinai.html?_r=1&hp&oref=slogin Previous Next Contact

News Summary Judgment Denied Where A Defendant Did Not Address All Elements Of Plaintiff’s Premises Liability Claim (NY) April 21, 2023 < Back Share to: A defendant seeking summary judgment in a premises liability case must address all of the elements of plaintiff’s claim, including whether a dangerous or defective condition exists and whether they had actual or constructive notice of the condition. The failure to do so will result in a denial of the motion, as evidenced by a recent decision of the Appellate Division, Second Department in Cabanas v. Qiu Yu Zou. In that case, the plaintiff lived on the second floor of defendant’s home was allegedly injured when she fell while descending an interior staircase. Plaintiff allegedly fell because the height of the riser for the bottom step differed significantly from the height of the risers for the other steps and because the handrail was too high from the steps. The owner moved for summary judgement on the basis that there was no defective condition which was a proximate cause of the plaintiff's accident and trial court denied the motion. The Second Department affirmed, recognizing that a landowner moving for summary judgment has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. The Court noted that even though the owner produced an expert engineer who opined that that the difference in riser height was not a proximate cause of the accident based upon the plaintiff's deposition testimony that she lost her balance while stepping on the tread of the bottom step, the owner did not adequately address plaintiff’s notice allegation. The evidence both parties submitted to the court, including deposition transcripts and several photographs, failed to establish that the owner did not have notice of the condition. Since the owner did not refute the notice element of plaintiff’s claim, the denial of summary judgment was upheld. The Cabanas decision serves as a reminder that defendants in premises liability cases must address and refute each element plaintiff’s claim in moving for summary judgment. Thanks to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Beware the elevation-related risk sitting firmly on the ground - NY Labor Law §240 June 10, 2016 < Back Share to: Beware the elevation-related risk sitting firmly on the ground Labor Law § 240(1) requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, often either falls from a height or injuries from falling objects. However, the First Department has recently confirmed that Labor Law § 240(1) liability can attach to items that have yet to leave the ground. In Grant v Solomon R Guggenheim Museum, plaintiff was standing on the back of a flatbed truck to help offload a crate of window glass. While preparing the crate for offloading it tipped over onto plaintiff, knocking him off the truck and onto the ground, four feet below. Both plaintiff and the defendant museum and general contractor cross-moved for summary judgment on plaintiff’s Labor Law § 240(1) claim, and the trial court ruled for co-defendants and dismissed plaintiff’s complaint. The First Department unanimously reversed the trial court’s ruling and granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, holding that plaintiff had established a prima facie case that he was injured due to an elevation-related risk. The court ruled that due to the height of the crate (6ft tall) and the weight of the crate (at least 1,500 pounds), the force generated by the crate’s fall did not pose a de minimis elevation-related risk, meaning defendants were liable for plaintiff’s injury. The court further determined that the crate should have been secured while being prepared for moving, and that it was undisputed that devices that should have been used to stabilize the crate were not in fact used. The court also declined to rule that plaintiff was the “sole proximate cause” of his injury—one of the sole defenses available to Labor Law § 240(1) defendants—because he was not provided with proper safety devices as he maneuvered the crate using a Johnson bar. The court did however uphold the trial court’s dismissal of plaintiff’s Labor Law §200 claim, ruling that the positioning of the flatbed truck at the time of plaintiff’s accident was a temporary condition necessary for the work rather than a dangerous worksite condition, and that the museum and general contractor were not liable because they exercised no supervision or control over it. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Should I move for SJ on Threshold Grounds? If you have to ask, then probably not (NY) June 3, 2016 < Back Share to: In recent years, New York Courts have discouraged filing of "threshold" motions for summary judgment on personal injury motor vehicle accident cases. According to Article 51 of the Insurance Law, a plaintiff injured in a motor vehicle accident must meet the serious injury "threshold" before their claim see a jury. Among the types of injury that are considering "serious" under Article 51, one is that the injury prevents the plaintiff from customary daily activities for 90 of the first 180 days following the accident. (Now, a cynic may suggest that the 90/180-day rule law essentially created the physical therapy industry, because 6 months of documented PT attendance can defeat a "threshold" motion, but I'm no cynic, so I won't make that point.) In DiDomenico v. Kocur, the trial court in Suffolk County granted a defendant's summary judgment motion, on "threshold" grounds. The Second Department reversed, and did not even need to examine the substance of plaintiff's opposition. The Court found the defendant's motion failed to make a prima facie showing that the plaintiff's 90/180-day claim had no merit. The Court did not opine on specifics, but we suspect the defendant's motion papers were devoid of references to plaintiff's immediate post-accident treatment and physical therapy. Thus, the plaintiff's claim will continue. "Threshold" motions are laborious to prepare and to oppose, and therefore, time-consuming for courts to decide. The predominant message now seems to be, "Do not bring a "threshold" motion unless you absolutely have to." Motions that are in the "gray area" are being denied more and more often, it seems. Please email Brian Gibbons with any questions.   Previous Next Contact

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News WCM Wins Summary Judgment on Melted Ice Slip and Fall December 14, 2018 < Back Share to: Recently, Mike Bono & Dana Purcaro of WCM obtained Summary Judgment for their client, in a decision issued by Judge Sherman in Supreme Court, Bronx County on the matter of Diplan v. Ergas, Index #605980/2014. Plaintiff was working at the defendant’s home as a housekeeper when she slipped and fell on water on the garage floor, which was a result of a bag of ice that was recently left in the garage and had begun to melt. The bag of ice was placed in the garage earlier that day by our clients’ daughter who did not permanently reside within the home. Despite knowing that our clients’ daughter placed the ice in the garage prior to the accident, plaintiff never sought to depose her or amend their complaint to add her as a direct defendant in the action. At the close of discovery, we moved for SJ on the grounds that our clients did not create or have actual or constructive notice of the allegedly dangerous condition. We also pointed out to the court that the condition itself is not the type that would have been present for long enough to place constructive notice onto our clients. Plaintiff opposed the motion stating that our clients were responsible for the placement of the ice in the garage as it is their home and they are responsible for the negligent conduct of anyone in their home. The Court rejected plaintiff's argument, and found no triable issue of fact as to whether our clients caused the condition or had notice of the presence of melting ice in the garage. The Court also pointed out that the plaintiff failed to take testimony or amend the complaint to include the non-party daughter who put the ice in the garage despite having knowledge of her existence for several years prior to the submission of the motions. Please email Dana Purcaro with any questions. Previous Next Contact

News NY Appellate Division Denies Insurer's Claim For Rescission September 22, 2009 < Back Share to: There is an old saying that "tough cases make bad law." In the insurance litgation context, this truism is reflected in the reluctance of courts to deny liability coverage where they believe it would be unfair or inequitable. In Barkan v. New York School Ins. Reciprocal, the Appellate Division, Second Department, denied the insurer's cross motion for summary judgment seeking to void its two policies ab initio based on an alleged misrepresentation in an earlier renewal application. The action underlying Barkan was notorious on Long Island because it involved the alleged misappropriation of $11,000,000 from a wealthy school district by several of its employees. In response, the school district sued several former board members for negligence and breach of their fiduciary duties. The district's insurer denied coverage to the former board members based on, among other reasons, the failure of the district to disclose in an earlier renewal application the misappropriations by a former employee in the district's business office. Several board members sued the insurer for coverage. The insurer responded by counterclaiming for rescission based on the district's failure to disclose the earlier theft and commenced a third party action against other board members seeking a declaration that it had no duty to defend or indemnify them either. Motions for summary judgment were filed by the parties and the lower court found in favor of the board members. The Appellate Division affirmed, holding that the insurer failed to meet its evidentiary burden on the issue of rescission. In order to rescind a liability policy, the insurer must demonstrate that the insured made a "material" misrepresentation. If proven, the policy is considered void ab initio. To meet its burden the insurer must present documentary evidence concerning its underwriting practices such as manuals, bulletins and rules relating to similar risks, which show that the policy would not have been underwritten in the same manner if the true facts were known. In this case, the insurer apparently relied exclusively on the affidavit from one of its underwriters without any documentary support whatsoever. The court rejected this proof and upheld the ruling that the insurer had, at a minimum, a duty to defend the board members against the claims made by the school district itself. In our experience, courts are very reluctant to rescind a policy based on an alleged misrepresentation. In evaluating the strength of such a policy defense, an insurer and its counsel must support their claims with compelling documentary proof. The naked affidavit of an underwriter will generally not win this battle, particularly where the individuals seeking coverage may not have been directly involved in submitting the allegedly false information. If you would like more information on this post, please contact Paul at pclark@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06494.htm Previous Next Contact

News Does An Email Exchange Constitute Enforceable Settlement Agreement? (PA) November 29, 2018 < Back Share to: In Hatchigan v. Kaplin, the Pennsylvania Court of Common Pleas analyzed whether an email exchange resulted in an enforceable settlement agreement. In brief, the plaintiff filed a lawsuit. Subsequently, following an exchange of telephone conversations, defense counsel sent an email to the plaintiff offering a settlement amount and also sought a general release and dismissal of the plaintiff’s lawsuit. Plaintiff’s counsel responded to the email stating “Agreed and accepted. Plaintiff will end, discontinue, settle accordingly to the defendants’ conditions …”. In response to the plaintiff’s email, defense counsel drafted a release, noting that the settlement was based on the prior exchange of emails, which the plaintiff signed. Upon receipt of the signed release, defense counsel requested that plaintiff have his signature notarized. At which time, the plaintiff advised he no longer agreed to the settlement. The defendants moved to enforce the settlement. Ultimately, the court found the agreement to be enforceable. The court reasoned that in their emails the parties agreed on the essential terms of the settlement, which formed a valid and enforceable contract. Accordingly, this case reveals that Pennsylvania courts may look to the communications between parties to determine if an enforceable settlement has been reached. Thanks to Collen Hayes for her contribution to this post.   Previous Next Contact

News Can Nurses Opine on Medical Causation? PA's Supreme Court Seems Set to Decide the Issue. December 4, 2009 < Back Share to: In most personal injury cases, an independent medical examination referral is a necessary evil. In low value cases, this can be problematic in that the usual $1,500 cost of an IME (by a doctor) can be worth almost as much as the case itself (especially in Philadelphia’s arbitration court). The nature of the business may, however, be about to change. Earlier this week the PA Supreme Court heard arguments in the case of Freed v. Geisinger Medical Center . At issue in this case is whether a registered nurse can opine on both the standard of nursing care and medical causation under PA's Medical Care Availability and Reduction of Error Act. If the court rules that a registered nurse can opine on medical causation (assuming they otherwise meet the expert standards), there may suddenly be a much larger pool of experts to draw from. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202436044407&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20091204&kw=High%20Court%20Considers%20Scope%20of%20Nurses'%20Testimony%20Again&slreturn=1&hbxlogin=1 Previous Next Contact

News Emergency Doctrine Rescues Taxi Driver (NY) March 18, 2016 < Back Share to: Under the “emergency doctrine”, if a driver is faced with a sudden and unexpected circumstance which leaves little or no time to consider alternative courses of conduct before making a speedy decision, that driver is not negligent if his or her reactions are reasonable and prudent in the emergency. In Kandel v FN Taxi, Inc., the plaintiff was injured when he was pinned between two vehicles after a multi-vehicle accident. The plaintiff and one of the defendants had been involved in an accident after sliding on ice. Their cars were stopped in the right lane of a three-lane highway when a vehicle belonging to a non-party crashed into the median and came to rest in the left lane. A yellow cab, after rounding a curve, saw the other vehicles stopped in the left and right lanes. The driver stepped on his brakes, but a sheet of black ice on the highway caused the cab to slide and hit the plaintiff’s vehicle pinning the plaintiff between his own car and the other vehicle in the right lane. The cab driver and owner successfully moved for summary judgment, arguing that the emergency doctrine precluded plaintiff from pursuing a negligence claim against them. The decision was affirmed on appeal. The Second Department found that the cab driver was faced with an emergency when he observed three crashed vehicles blocking two lanes of traffic. There was no evidence the driver was speeding, nor did he have reason to believe there would be black ice on the road on an otherwise dry day. The court held that under these particular circumstances, the cab driver acted reasonably when he hit the brakes and tried to steer the taxi clear of the other vehicles. Although the reasonableness of a driver’s actions can raise a triable issue of fact to defeat summary judgment, the court found that plaintiff did present any evidence that the cab driver either contributed to or could have avoided hitting plaintiff’s car. Thanks to Sheree Fitzgerald for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Participation is Not Always Direction or Control under NY's Labor Law February 10, 2009 < Back Share to: Owners of one and two-family homes are typically exempt from Labor Law §240 and 241, except in situations where they “direct or control” the work. In Snyder v. Gnall, the Third Department in New York recently held that despite clear involvement by the owner in the construction project, his actions did not rise to the level of direction or control. The owner was identified on the building permit as the general contractor; he personally arranged for building inspections; he hired all contractors and sub-contractors; and he ordered and paid for certain building materials. However, because all of these activities took place pursuant to directions or recommendations set forth in plaintiff’s comprehensive proposal, the Court held the owner’s participation was not as significant to support the conclusion that he directed or controlled the work. The claims were thus dismissed. Snyder v. Gnall Previous Next Contact