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- AndyMilana | WCM Law
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
- AndyMilana | WCM Law
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
- AndyMilana | WCM Law
News Mysterious Shifting Cellar Doors Trip Up SJ (NY) June 12, 2013 < Back Share to: Anyone who has walked the sidewalks in New York City is aware of the ubiquitous cellar doors that open up to basement storage areas for the many businesses that line the streets. So the question is what duty is owed to pedestrians who must navigate the sidewalks over and around those doors. In Boynton v. Haru Sake Bar, the plaintiff allegedly tripped over cellar doors located on the sidewalk adjacent to the defendant's restaurant. There was a height differential of one half inch between the cellar doors and the sidewalk. The defendant moved for summary judgment arguing that the hatch doors were not open at the time of the accident and that the height differential between the doors was trivial. The court agreed that such a differential was trivial and that summary judgment would be granted on this basis - but for the plaintiff's claim that it was not the differential that caused her to fall but rather movement of the doors. The lower court and the First Department found that this theory presented a triable issue of fact. The plaintiff and her husband cited boxes that were being delivered to the sidewalk in front of the doors at the time of the accident. They argued that the doors were moved from the inside just as she was walking over them - presumably in connection with the delivery. While the defendant could not be liable for the trivial differential, the court ruled that the restaurant could be potentially liable if the doors shifted due to activity underneath. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact
- AndyMilana | WCM Law
News NJ High Court Moves toward Daubert October 31, 2018 < Back Share to: The Supreme Court of New Jersey has finally adopted the Daubert factors for assessing the reliability of expert testimony and reaffirmed the trial court’s duty to engage in “rigorous gatekeeping” when adjudicating whether an expert opinion is admissible. In re: Accutane Litigation involved allegations that the prescription cystic acne medication caused Crohn’s disease. Despite numerous epidemiological studies finding no association b, plaintiff’s expert gastroenterologist relied on suspect data, animal studies and his own unique theory of biological plausibility to opine that Accutane can, in fact, cause Crohn’s disease. The trial court concluded that there wasno epidemiological evidence establishing a causal link between Accutane and Crohn’s disease, and that plaintiff’s expert report was conclusion driven. The Appellate Division reversed, concluding that plaintiff’s expert relied on methodologies and data of the type reasonably relied upon by comparable experts which wasthe standard in New Jersey for the admission of expert opinions. It also held that it owes less deference to the trial court when making a determination on whether to admit or exclude an expert opinion. New Jersey’s Supreme Court explicitly rejected the Appellate Division’s heightened standard of review and reaffirmed “that the abuse of discretion standard applies in the appellate review of a trial court’s determination to admit or deny scientific expert testimony on the basis of unreliability in civil matters.” The Supreme Court made clear that trial courts must “assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion”. Trial courts are now instructed to consider Daubert’s non-exhaustive list of factors when assessing the reliability of expert testimony: Whether the scientific theory can be, or at any time has been, tested;Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form or peer review but is not a “sine qua non”;Whether there is any known or potential rate of error and whether there exists any standards for maintaining or controlling the technique’s operation; andWhether there does exist a general acceptance in the scientific community about the scientific theory. Applying this standard, the Court determined that “the trial court did the type of rigorous gatekeeping that is necessary when faced with a novel theory of causation, particularly one, as here, that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.” Requiring trial courts to take their gatekeeping role seriously in NJ has been long overdue since defense counsel often seek to exclude a plaintiff’s expert report. It is not uncommon for a report to be stricken, but then reinstated by the appellate division which has used New Jersey’s liberal standard for the admission of expert opinions. The Supreme Court has now made clear that the trial court’s determination on these issues is owed deference by the trial court, just like any other evidence determination. Thanks to Michael Noblett for his contribution to this post. Previous Next Contact
- AndyMilana | WCM Law
News Third Circuit Hears Arguments on Title Insurers and Possible Antitrust Violations April 24, 2012 < Back Share to: In the case In re New Jersey Title Insurance Litigation, the Third Circuit Court of Appeals heard arguments on a class action suit brought against title insurers in New Jersey. The plaintiffs argued that the defendant insurance companies violated federal antitrust laws when they agreed to charge the same amount for premiums after submitting their proposed rates and data to New Jersey regulatory agencies that approved the title insurance rates. The insurers had previously prevailed in the district court where they argued that the filed-rate doctrine defined in the U.S. Supreme Court’s 1986 decision in Square D v. Niagara Frontier Tariff Bureau exempted rates that have been approved by a regulatory agency from antitrust challenges. Conversely, the plaintiffs attempted to argue that the underlying principles of Square D were not present in the instant case and thus was not controlling. However, the persuasiveness of the plaintiffs’ argument may not have resonated with the Court. Former Justice Sandra Day O’Connor, who was seated on the panel noted, that the plaintiffs seemed to be in the wrong forum and a better course of action would be to seek legislative reform. http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202549600415&On_3rd_Circuit_Panel_OConnor_Hears_Echo_of_Antitrust_Case&slreturn=1 Thanks to Colleen Hayes for her contribution to this post. Previous Next Contact
- AndyMilana | WCM Law
News NY Court Quashes Subpoena for Claims Adjuster in Auto Accident Case October 14, 2016 < Back Share to: Lizardi v. Bogale was a typical New York auto accident case, but an interesting issue arose during discovery. As often is the case. party depositions revealed significant differences as to how the accident occurred. During the plaintiff’s deposition, she testified that she spoke over the phone to a GEICO claims representative on the date of the automobile accident and plaintiff made a motion to compel the production of the audiotape or written transcript of that call, and the parties stipulated that GEICO would produce the audiotape/transcript or an affidavit from the GEICO adjuster stating that the requested documents no longer existed. The defendant provided an affidavit from the GEICO adjuster that there was no audiotape or written transcript of plaintiff’s telephone call. Plaintiff then sought to depose the GEICO adjuster for her non-party testimony and defendant moved to quash the subpoena. The court recognized that discovery is a very broad tool, and that the term “material and necessary” is mean to be liberally applied, in order to provide plaintiffs with the tools to prosecute their case. However, the court held that discovery is not meant to be unlimited and that the testimony of the GEICO insurance adjuster was not “material and necessary” as her testimony would only be cumulative of the information previously provided by both parties and was intended to be used solely to impeach defendant’s credibility or bolster plaintiff’s credibility. The court further opined that the purpose of liability insurance is the defense and settlement of claims and that virtually everything an adjuster does is in contemplation and preparation of litigation or settlement. As such, plaintiff would have to demonstrate a substantial need for the testimony of the insurance adjuster and would be unable to obtain the information of the adjuster without establishing undue hardship. Accordingly, the court held that the adjuster’s testimony was not material and necessary to the prosecution of the matter and the adjuster’s testimony would not provide any new information, and the court granted the defendant’s motion to quash the subpoena. Thanks to Geoffrey Bleau for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact
- AndyMilana | WCM Law
News No Driver's License means No PIP Benefits for that Driver in New Jersey March 7, 2019 < Back Share to: In Blanco-Sanchez v. Personal Service Ins. Company, a New Jersey Appeals court ruled that unlicensed drivers are not entitled to personal injury protection (PIP) benefits for car crash injuries even if they have been given permission to drive a car by the owner. Norma Blanco-Sanchez suffered injuries in a car crash while driving her mother’s car. Sanchez sought PIP benefits to cover her medical bills under her mother’s policy, which provided such coverage for up to $15,000 in covered medical expenses at the time of the crash. After the insurer denied the application, Sanchez filed suit. Personal Insurance immediately moved for summary judgment and the trial Court granted the motion, reasoning that "while the PIP portion of defendant’s policy did not contain a specific exclusion for unlicensed drivers, the argument is not whether it contains an exclusion…you can’t give permission to extend the coverage in a situation where they couldn’t have obtained coverage to begin with.” Sanchez appealed and argued that the policy did not “expressly” exclude such coverage for situations such as this. However, Sanchez’s mother knew that she was an unlicensed driver at the time the accident occurred. The appellate panel affirmed the trial Courts decision stating that Sanchez cannot recover PIP benefits as a matter of public policy because an owner cannot give permission to a driver who is known to be unlicensed. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact
- SuzanCherichetti | WCM Law
News New York Appellate Court Continues Trend of Finding No Coverage For Financial Loss Due To COVID-19 Related Closures February 23, 2023 < Back Share to: The Appellate Division, First Department recently followed the national trend in rejecting Madison Square Garden’s (“MSG”) claim that it was entitled to insurance coverage for losses related to the COVID-19 pandemic. In Madison Square Garden Sports Corp. v. Factory Mutual Insurance Company, 35 related MSG companies sued four of its insurers, alleging that they failed to provide coverage for losses caused by COVID-19 related closures. MSG alleged that it suffered substantial financial losses due to seats being empty for almost a year. The lower court granted the insurers’ motion for partial dismissal of the complaint, except for MSG’s claims for coverage under the policies communicable disease and claims preparation cost provisions. The First Department affirmed the lower court’s decision, holding that MSG failed to allege actual physical damage that occurred as a result of the closures and loss of business caused by the COVID-19 pandemic. Citing its prior decision in Consolidated Rest. Operations, Inc v. Westport Insurance Corp., 205 A.D. 3rd 76, 80-87 (1st Dep’t 2022), lv granted in part, dismissed in part, 39 N.Y. 3rd 943 (2022), the Court held that to recover under the terms of policies that ensure against physical loss or damage, plaintiffs must allege actual physical damage. Simply alleging loss based on COVID-19 related closures is insufficient to state a cause of action for breach of contract and insufficient to warrant coverage under the defendants’ policies. The Court added that the lower court properly declined MSG's request to take judicial notice of the various executive orders, scientific studies and other matters concerning COVID-19 as those documents are not “matters of common and general knowledge well established and authoritatively settled.” In light of it ruling, the Court declined to address the parties’ arguments regarding whether certain exclusions applied to bar recovery. Although the MSG decision did not completely dispose of the lawsuit and the issue of coverage under the policies communicable disease clauses remain, the decision follows the clear trend of state and federal courts not supporting property coverage claims for COVID-19 business losses in the absence of physical loss or damage. We will continue to monitor and report on these decisions. Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact
- AndyMilana | WCM Law
News Labor Law Victory In Name Only February 1, 2012 < Back Share to: In Russo v. Hudson View Gardens, Inc., 2012 NY Slip Op 00464, the First Department modified the trial court’s decision and awarded defendant Midboro Management summary judgment as to Russo’s Labor Law § 200 and common-law negligence claims. In doing so, the court noted that plaintiff’s allegations, stemming from the use of an A-frame ladder, were not viable against managing agent Midboro. The court emphasized that the record established that Midboro did not direct Russo’s work, nor did Midboro have actual or constructive notice of the allegedly unsafe condition. Midboro did not own the ladder in question, and Russo did not tell anyone about the allegedly unsafe condition, so as to establish notice on Midboro’s part. Nevertheless, regardless of this victory, the harsh reality of the statutory obligations imposed by Labor Law 240(1) and 241(6) remained, and are subject to trial by jury. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00464.htm Previous Next Contact
- Brian Gibbons | WCM Law
News WCM Announces Two New Counsel and Three New Associates in New York February 29, 2024 < Back Share to: WCM is pleased to announce one promotion in our Long Island office, and the addition of one new counsel-level attorney and three associates in our New York office. Effective March 1, 2024, Patrick Argento has been promoted to Counsel in our Long Island office. During his tenure at WCM, and also with Steven F. Goldstein LLP, PJ has demonstrated a consistent commitment to achieving the best results for our clients. His quiet demeanor belies how passionately and aggressively he advocates for his clients. PJ graduated from Maurice A. Deane School of Law at Hofstra University. He started his legal career with the Suffolk County District Attorney’s Office in 2016, while still in law school and, under a practice Order from the Appellate Division, Second Department, was able to prosecute cases as a Law Assistant where he gained valuable hands-on legal experience before transitioning to a civil practice years later. PJ is a welcome addition to the rank of Counsel at WCM, where he will mentor our younger attorneys, and strive toward continued success in his new role. Karl Eschelbach recently joined our New York office at the role of Counsel. Karl is a graduate of Villanova University School of Law and has over a decade of litigation experience. Prior to joining WCM, Karl worked for some well-known personal injury firms in the NY market where he specialized in complex personal injury, Labor Law, and medical malpractice, including taking several cases to verdict. Emily Walpole has joined WCM as an associate in our New York office. Emily is a graduate of the University of Virginia School of Law. Prior to joining WCM, Emily worked at a large New York firm and represented clients in a range of complex litigation, including employment and HR-related issues, particularly relating to pay equity legislation, wage and hour misclassification issues, enforcement of restrictive covenants, Title VII, NYHRL, and FLSA compliance. Ross Gudis joins WCM as an associate in our New York office. Ross is graduate of St. John’s University School of Law. Before joining WCM, Ross was an assistant district attorney with the Nassau County District Attorney’s Office and handled both misdemeanor and felony cases from arraignment through trial. Christopher Roppolo joins our New York office as an associate as well. Chris is a graduate of Villanova University Charles Widger School of Law. Chris is admitted to practice in Pennsylvania, and awaits admission to the New York Bar. Prior to joining WCM, Chris handled employment matters, intellectual property, and commercial litigation at a New York City law firm. Previous Next Contact
- AndyMilana | WCM Law
News University Has No Duty For Cheerleader Fall At Camp (PA) February 18, 2016 < Back Share to: A university does not owe a duty to its athletes when they are attending a third-party instructional camp at which its coaching staff has no role in instruction or supervision. In Kennedy v. Robert Morris University, the Superior Court of Pennsylvania affirmed summary judgment granted to the university in a case arising out of a cheerleading accident. The plaintiff was a member of Robert Morris University’s cheerleading team as an incoming freshman in 2010. The coach, Cynthia Hatfield, required the team to attend a cheerleading camp at the University of Scranton that was hosted and conducted by the Universal Cheerleaders Association. During the camp, the plaintiff and three other cheerleaders practiced a new stunt called a “rewind.” The plaintiff was the flyer, and the other three cheerleaders were bases. To successfully perform a rewind, the flyer does a back flip while the bases propel her upward and then safely catch her. On the second attempt of the stunt, the plaintiff fell. Although her bases caught her body, her head hit the ground. The plaintiff sustained a closed head injury, concussion, cervical strain, impaired vision, and injuries to her neck and jaw. The plaintiff filed suit against both RMU and Universal Cheerleaders Association. With respect to the university, the main issue was whether it owed a duty to the plaintiff. The court weighed five factors: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. In arguing that RMU owed her a duty, the plaintiff relied on a Third Circuit case in which the court found a college owed a duty to one of its athletes to have medical personnel present at sporting events. The plaintiff argued that she had a special relationship with RMU because of her participation in its cheerleading program. She pointed to the fact that her attendance was mandatory at the camp and that she was injured in a stunt group that was assembled pre-camp by the university’s cheerleading coach. After review of the record, the Superior Court of Pennsylvania concluded that RMU did not owe a duty merely because its coach required the athletes to attend and accompanied them to the camp. Significantly, the coach did not undertake the task of instructing, supervising or training with respect to the stunt that resulted in the injury. To the contrary, the record showed that UCA was solely responsible for supervising and training for the new stunts. Accordingly, the Superior Court concluded that RMU did not owe a duty to the plaintiff under the circumstances. Thank you to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact
- AndyMilana | WCM Law
News Art Collector Sanctioned for Failure to Comply with E-Discovery (NY) December 14, 2009 < Back Share to: Federal courts continue to require strict compliance with e-discovery, even in situations where the litigants have seemingly retained copies of all relevant data. This issue recently came to light in an art related lawsuit in Green v. McClendon, venued in the Southern District of New York. The McClendon’s found a nice work of art at the International Fine Art Fair and agreed to pay plaintiff -- a London-based art dealer -- $4.2 million. But the McClendon’s separated shortly thereafter, leaving a balance of $3.7 million. During discovery, in response to a discovery demand, the defendants produced an Excel spreadsheet with information regarding other art purchases. Plaintiff served a demand for information about the spreadsheet, including dates of modification and the like. When the defendants could not produce this information, plaintiff moved for an order authorizing an inspection of Mrs. McClendon’s computer. It was then revealed that a few months after plaintiff filed suit, the content of Mrs. McClendon’s computer was transferred to a number of CD’s and her hard drive was then wiped clean in order to install a new operating system. Plaintiff then moved for sanctions due to spoliation of evidence. The Court held that there was “no doubt” that the defendant was obligated to preserve all documents stored on her computer pertaining to plaintiff, and that she and her attorney clearly failed to implement a litigation hold, which constitutes grossly negligent behavior in respect of spoliation. Because no prejudice was established -- particularly because it appears all relevant information was copied -- plaintiff was not entitled to an adverse inference against the defendant. But the Court agreed to allow plaintiff additional time to complete discovery, including a further deposition of the defendant, and awarded plaintiff costs, including attorney fees. Previous Next Contact