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Practice Areas Appellate Casualty Defense Commercial Auto & Trucking Commercial Litigation Construction Litigation Cybersecurity & Data Privacy Dram Shop Education and Not for Profit Law Employment Law Fine Art and Specie First Party Property Fraud Investigation and Prosecution Insurance Coverage Premises Liability Products Liability Professional Liability Retail & Hospitality Sports and Recreational Liability Subrogation and Recovery

News WCM Wins Major Coverage Ruling for Specie Market: Classic “Unattended Vehicle” Exclusion Applies to Goods on Consignment October 10, 2024 < Back Share to: ​ On October 7, the New York State Supreme Court, New York County, confirmed what the jewelry industry has known for centuries: the longstanding “unattended vehicle” exclusion in every jewelers’ policy applies to goods on consignment. In a landmark decision, the Honorable Debra James granted summary judgment for defendants, endorsing their common sense and contract-based argument in Avi and Co. N.Y. Corp. and Time 2 Tick, Inc., v. Those Certain Underwriters At Lloyd’s London, Subscribing to Policy No. FINFR 1902879 , 650374/2021 (N.Y. Oct. 8, 2024). Plaintiffs-Insureds filed this breach of contract claim against Defendants-Insurers Those Certain Underwriters At Lloyd’s London, (“Underwriters”) , after Underwriters disclaimed coverage on the basis of the Jewelers Block Policy’s “unattended vehicle” exclusion after an investigation into the loss of approximately $1.6 million worth of jewelry that Plaintiffs had entrusted to non-party consignee El Russo & Co. for potential sales. After litigation commenced, and in response to Underwriters’ Notice to Admit, Plaintiffs confirmed that unknown thieves stole the consigned jewelry from the back seat of an unoccupied and unattended vehicle used by two El Russo employees. The El Russo employees were inside a jewelry store at the time, with their vehicle – and the consigned jewelry inside it – out of sight. They did not witness the burglary, only discovering the theft when they returned to their vehicle to find a police officer writing a report. Underwriters moved for summary judgment, citing decisions from the First Department and other jurisdictions which have routinely upheld the “unattended vehicle” exclusion. That exclusion precludes coverage for: “[l]oss of or damage to Stock Insured while in or upon any automobile . . . unless, at the time the loss or damage occurs, there is actually in or upon such vehicle, the Insured, employee or officer of the Insured, commission salesperson or selling agent, or a person whose sole duty it is to attend the vehicle . . .” In its well-reasoned decision, the Court relied on the plain and ordinary meaning of the “unattended vehicle” exclusion and held that: “[t]he fact that the term ‘consignees’ was not expressly identified in the Unattended Vehicle Exclusion does not render the provision ambiguous.” Id. Previous Next Dennis M. Wade Dennis M. Wade Partner +1 212 267 1900 Contact

Michael A. Bono Executive Partner New York +1 212 267 1900 mbono@wcmlaw.com Professional Experience At WCM, Michael: Defends high profile cases involving high net worth individuals and public figures, including media, sports, entertainment and political personalities; litigates complex professional liability, commercial actions and suits involving catastrophic injuries and significant property losses; prosecutes replevin and subrogation actions involving Fine Art, Jewelers Block and Specie; evaluates insurance coverage issues; defends and prosecutes declaratory judgment actions; briefs appellate cases; and conducts fraud investigations. Before joining WCM, Michael was a Senior Assistant District Attorney with the Kings County District Attorney’s Office. As an ADA, Michael prosecuted violent felonies and investigated complex narcotic networks and conspiracies. Michael also supervised junior prosecutors and assisted in the training of attorneys and police officers. Michael has also worked for a law firm specializing in the defense of fraudulent insurance claims. Along with Bob Cosgrove, Mike comprises WCM’s Management Committee, which serves as WCM’s governing body. Honors and Distinctions At Fordham University, Michael served on the Environmental Law Journal and was a member of the Dean’s List. He was also a magna cum laude graduate of Villanova University. Professional Activities Michael has been elected to membership in the Federation of Defense & Corporate Counsel and the Claims and Litigation Management Alliance, and is also a member of DRI, the Professional Liability Underwriting Society, and the North American Contingency Association. Michael is a frequent lecturer and has conducted seminars before such organizations as the International Underwriting Association of London, the New York State Bar Association, as well as for numerous clients. Publications The Poison Pill? Settling Damage Claims Involving Living Artists (co-author Michael A. Bono): International Fine Art and Specie Conference, Rome, Italy, 2017 Sandy’s Impact on Fine Art and Property Insurers IUA Event: London – November 2013 (co-author with Dennis M. Wade) Fine Art and Collectible Losses: Framing the Value Issues (International Underwriting Association, London, England, November 2012) (co-author with Dennis M. Wade) The Basics of Oral Examination: Understanding the Rules and Law of Depositions Pursuant to the CPLR (New York State Bar Association, 2012) The Examination Before Trial: What to Do Before Calling the Court (New York State Bar Association, 2012) What Fine Art Insurers Really Need to Know About the Visual Artists Rights Act (VARA) (co-author with Dennis M. Wade) The Anatomy of a Bust Out: The Implications of Bankruptcy and Bankruptcy Fraud for Property, Fine Art and Specie Insurers (International Underwriting Association, London, England, November 2011) (co-author with Dennis M. Wade) Defending Underwriters, Claim Professionals and Brokers in US Coverage Litigation (International Underwriting Association, London, England, November 2009) (co-Author with Dennis M. Wade) Getting it Back: Recovering Stolen Property in the United States (International Underwriting Association, October 2008) (co-author with Dennis M. Wade) Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. Fordham University School of Law B.S.B.A. Villanova University Bar Admissions New York Eastern District of New York Southern District of New York New Jersey District of New Jersey Pennsylvania

News LIABLE, UNTIL PROVEN INNOCENT: How Landlords Must Be Clear About the Transferring of Possession and Control When Leasing Property September 27, 2024 < Back Share to: ​ Generally, in an action to recover damages for personal injuries, landowners owe a duty of general care for maintaining their property in a reasonably safe condition – a duty not easily relieved. The bounds of such a duty are focused on a landowner’s ability to exercise or exert control over a particular property, e.g. a duty is placed on the landowner or the entity able to exercise or exert control because “the person in possession and control of property is best able to identify and prevent any harms to others.” But what happens when a landowner leased or provides exclusive control over a particular property to another? Does that duty survive and extend through such a lease or is the landowner relieved of it? In Williams-McKay v. Parkgate Communications, Inc. , the Appellate Division, Second Department, answered and affirmed those exact questions. In Williams-McKay , the Karolyn Williams-McKay, a school bus driver for a transportation entity named Veterans Transportation had completed her morning bus route shift and returned the bus to the designated bus yard. After parking and exiting, the Plaintiff began taking several steps whereby she stepped in a pothole and was caused to fall, thereby suffering personal injuries. At the time of this incident, the landowner of the bus yard was the Defendant, Parkgate Communications, Inc. However, pursuant an oral agreement, Parkgate had actually leased the bus yard to Veterans Transportation. The Plaintiff eventually filed suit, and Defendant Parkgate moved for summary judgment. The lower Supreme Court denied Parkgate’s summary judgment, and they appealed. In reviewing the case, the Second Department noted that, while landowners who exercise control over a property are generally held to a duty to maintain said property in a reasonable safe condition, landowners who have transferred possession and control of a property are generally not liable for dangerous conditions on them , e.g. an ‘out-of-possession landlord’. With this understanding in mind, the Court ultimately found that Parkgate had failed to sufficiently establish that they were an ‘out-of-possession landlord’ at the time of the accident, as it was unclear whether possession and control of the bus yard had been sufficient transferred to Veterans Transportation. Additionally, the Court found that Parkgate failed to eliminate the possibility of whether they knew or should have known about the subject pothole prior to the accident. Therefore, Parkgate’s duty for maintaining the bus yard in a reasonably safe condition remained, despite them having leased it out to Veterans Transportation (an important point for any landlord is to ensure being able to prove that possession and control of a property are sufficiently transferred when leasing a property out to another). Thanks to William Hoffman for his contribution to this post. McKay v. Parkgate Communications, Inc. .pdf Download PDF • 142KB Previous Next Contact

News When Making a Notice of Claim, Make Sure to Include EVERY Claim the First Time September 27, 2024 < Back Share to: ​ A notice of claim is a crucial element for bringing a lawsuit against a municipality, and of course, it is in fact fatal not to serve one. It is possible to serve one late with permission of the court, which will depend on various factors whether or not they deem it permissible. But what happens if you have filed one timely, but later want to add a new claim for the same cause of action after the time to file passes? In most litigations, you can often get around this through the relation back doctrine, if you can demonstrate that the party had sufficient notice to expect being served. This can be true with a late notice of claim… But only if you give them enough information to be put on notice. Specifically in this case, even if they are already on notice of a claim, that may not be sufficient to give a municipality sufficient notice of a different cause of action for the same claim. P. v City of New York, et al. was a Second Department case that dealt with a minor Plaintiff who was injured when she fell of the school bleachers during gym class. Initially, P’s parents filed a timely notice of claim against the city, alleging that the school failed to properly maintain the bleachers. Over a year later, Plaintiff filed an amended notice of claim, adding in a further cause of action for negligent supervision. While they did not initially move the Court for permission to do so, they did after the fact. While the lower court initially granted the motion, it was reversed on appeal, denying the motion and rejecting the amended notice of claim. The Court noted multiple factors that are to be considered when considering whether or not to accept a late notice of claim, such as reasonable excuse for failing to serve it timely and if the municipality was prejudiced by the delay, but the most critical factor is determining if the notice of claim sufficiently gave the municipality actual knowledge of the essential facts of the claim. In this particular case, the Second Department found Plaintiff’s parents failed to do any of these. They gave no reasonable excuse for failing to serve a notice of claim for negligent supervision in a timely manner nor did they properly show no prejudice the city. Most importantly, however, they failed to provide sufficient facts for the negligent supervision claim. All they did was demonstrate that the infant was injured when she fell off the bleachers during gym class; no facts were shown how she was negligently supervised by the school staff. This case clearly demonstrates the three most important factors to keep in mind when preparing a notice of claim: (1) be timely, as failing to do is fatal to your case,( 2) be specific with your facts; the less ambiguity and greater clarity, the better, and (3) to avoid making the mistakes P’s parents did, make sure to lay out every possible claim you may pursue in one notice of claim. P v. City of New York .pdf Download PDF • 753KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact

News How “Serious”’ Means Serious Injury September 27, 2024 < Back Share to: ​ In, Brown v. Calisi, a personal injury action arising from a motor vehicle accident, Tonya Brown appealed from an order of the Supreme Court, Dutchess County, which granted summary judgment in favor of the defendants, Domenic Calisi and Donatella Calisi. The defendants had moved for summary judgment, arguing that the plaintiff did not sustain a "serious injury" as defined under New York Insurance Law § 5102(d) as a result of a motor vehicle accident. The Supreme Court granted the defendants’ motion, and the plaintiff appealed. So, how “serious” does Plaintiff’s injury have to be in order to have a valid claim? Let’s look at the law. New York Insurance Law § 5102(d) defines a “serious injury” as one that results in specific, significant impairments or limitations. This statute is critical in personal injury cases involving motor vehicle accidents, as it sets the threshold that must be met for a plaintiff to recover damages for pain and suffering. Under this law, a “serious injury” includes: - Death - Dismemberment - Significant disfigurement - Fracture - Loss of a fetus - Permanent loss of use of a body organ, member, function, or system - Permanent consequential limitation of use of a body organ or member - Significant limitation of use of a body function or system - A medically determined injury or impairment that prevents the injured person from performing substantially all of the material acts that constitute their usual and customary daily activities for at least 90 of the 180 days immediately following the injury The defendants successfully met their burden of proof by providing competent medical evidence that the plaintiff’s alleged injuries to her left shoulder and lumbar spine did not meet the “serious injury” threshold under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). Additionally, the defendants demonstrated that the plaintiff did not sustain a serious injury under the 90/180-day category of the same statute. In response, the plaintiff failed to raise a triable issue of fact to refute the defendants’ claims. As a result, the Supreme Court properly granted summary judgment, dismissing the complaint insofar as asserted against the defendants. The order was affirmed by the appellate court. As unfortunate as it is for the Plaintiff, her injuries were not ‘serious’ enough to assert a claim for personal injuries against Defendants. Brown v. Calisi .pdf Download PDF • 730KB Previous Next Ishra Glasswala Ishra Glasswala Associate +1 516 813 0011 IGlasswala@wcmlaw.com Contact

News Even Though He Couldn’t See, it’s Defendant’s Fault September 27, 2024 < Back Share to: ​ In Fuentes v. 257 Toppings Path , Plaintiff Gregorio Fuentes was employed as a laborer to work on the new construction of a house on land owned by the defendant third-party plaintiff. During the course of construction, the plaintiff was spray-painting insulation in the attic space when he fell 16 feet through an opening in the attic floor. The opening was intended to be covered by a panel that would provide access to the attic upon completion of construction. Plaintiff alleged violations of Labor Law 240(1) and 241 (6). As we know, Labor Law 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards. In this matter, plaintiffs’ evidence established that the plaintiff was exposed to an elevation risk within the ambit of Labor Law 240(1) by virtue of the uncovered, unguarded opening in the attic floor, that he was not provided safety devices to protect him from that hazard, and that the failure to provide him proper protection from the uncovered, unguarded opening was a proximate cause of his injuries. The court granted plaintiffs’ summary judgment motion despite the fact that plaintiff testified that his visibility was poor due to the condition of a protective mask that he was wearing at the time of the accident. The court noted that any potential comparative negligence arising from this fact would not be a defense to the Labor Law 240(1) cause of action. Any comparative negligence on the part of the injured plaintiff does not preclude liability founded upon a violation of Labor Law 240(6). This decision is helpful and gives insight into our potential evaluations of cases where plaintiffs might be comparatively negligent. Despite plaintiff having his vision obstructed and then falling into the open space, it did not preclude the Labor Law violations. The fact that there is a violation of the labor law is enough and no negligence on plaintiff’s part is enough to preclude such violations. This is significant because we come across many cases where plaintiffs are negligent in the way they are conducting their work, however, if there is a labor law violation, it likely will not be precluded due to plaintiffs negligence. Fuentes v. 257 Toppings Path, LLC .pdf Download PDF • 332KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News Subcontractor’s Insurer Must Reimburse General Contractor For Defense Costs in Workplace Injury to Subcontractor’s Employee September 27, 2024 < Back Share to: ​ In Zurich American Insurance Company v. Citizens Insurance Company of America , No. CV 24-1879, 2024 WL 4194319 (E.D. Pa. Sept. 13, 2024), the District Court for the Eastern District of Pennsylvania addressed a dispute between the insurers of a general contractor and subcontractor, arising of a jobsite injury to an employee of the subcontractor. The factual background of the case is a common one in Philadelphia: SEPTA hired a general contractor to perform construction work on a subway station, and that general contractor in turn hired a subcontractor to perform a portion of the work. The general contractor and the subcontractor were each covered by their own liability insurance policy, and the general contractor was named as an additional insured on the subcontractor’s policy for injuries caused in whole or in part by the subcontractor. An employee of the subcontractor was injured at the job site, and he sued the general contractor (but not the subcontractor, which was protected by Pennsylvania’s Workers’ Compensation Act). The subcontractor’s insurer denied the general contractor’s request for defense in the employee’s lawsuit. The general contractor’s insurer (Zurich) sued the subcontractor’s insurer (Citizens) seeking a judicial determination. In brief, the insurance coverage dispute arose because the injured plaintiff was not permitted to sue his employer, and therefore there was no allegation that the injuries were caused in whole or in part by the subcontractor as required in the additional insured endorsement. Although the underlying allegations did not directly attribute fault to the subcontractor, the court found that Pennsylvania law permits the legal analysis to account for the Workers’ Compensation Act. Nevertheless, the Eastern District held that it “can infer in the absence of the Act, [the plaintiff] would have pleaded more detail concerning [the subcontractor]’s negligence in his underlying complaint” and found that the plaintiff alleged negligence on the part of his employer even without including that entity as a defendant in the lawsuit. In short, the plaintiff was only at the job site because he was employed by the subcontractor to perform construction work. The court entered judgment on the pleadings for the general contractor’s insurer, declaring that the subcontractor’s insurer must reimburse the general contractor’s insurer for defense costs and take over the defense of the general contractor. The court also noted that the question of indemnity in the underlying lawsuit was not yet ripe. Zurich American Insurance Company v .pdf Download PDF • 269KB Previous Next Jason Laicha Jason Laicha Associate +1 267 239 5526 jlaicha@wcmlaw.com Contact

Anand P. Tayal Associate Pennsylvania +1 267 665 0014 apandittayal@wcmlaw.com Professional Experience Anand Tayal litigates general liability actions including premises liability, construction defect claims, and motor vehicle accidents. His work includes all stages of litigation including investigation, fact analysis, drafting pleadings and motions, depositions, conducting legal research, attending hearings, arbitrations, and mediations, and preparing for trial. During law school, Anand clerked for a personal injury firm and gained valuable insight into Plaintiff side personal injury litigation. Honors and Distinctions While in law school, Anand was the Captain of the Jessup Moot Court Team and received an award for being a Top 10 oralist at the Jessup Regional Rounds in Washington D.C. Recipient of the Beasley Law Faculty Scholarship Prior to law school, Anand was on the executive committee of the Mock Trial Team at Bucknell University. 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.A., Bucknell University Bar Admissions Pennsylvania New Jersey

News Cards Against Humanity Sues SpaceX Over Texas Trespass September 23, 2024 < Back Share to: ​ SpaceX received an embarrassing reminder last Thursday to ensure they own property before undertaking major projects. Cards Against Humanity, a company known for their irreverent party game and national pranks, filed a lawsuit against SpaceX for trespass on land they have owned in Texas since 2017. Cards Against Humanity purchased the land adjoining the border between the United States and Mexico in 2017 as part of a protest against then-President Donald Trump’s planned border wall. Since that time, CAH reports, the land has been kept in pristine condition, maintained with regular mowing, fencing and “no trespassing” signs. That was, of course, until Elon Musk’s SpaceX moved in next door and began using the CAH acreage as worksite. Per CAH’s public statement , SpaceX “completely f***ed that land with gravel, tractors, and space garbage.” From the lawsuit : “The site was cleared of vegetation, and the soil was compacted with gravel or other substance to allow SpaceX and its contractors to run and park its vehicles all over the Property. Generators were brought in to run equipment and lights while work was being performed before and after daylight. An enormous mound of gravel was unloaded onto the Property; the gravel is being stored and used for the construction of buildings by SpaceX’s contractors along the road. Large pieces of construction equipment and numerous construction-related vehicles are utilized and stored on the Property continuously. And, of course, workers are present performing construction work and staging materials and vehicles for work to be performed on other tracts. In short, SpaceX has treated the Property as its own for at least six (6) months without regard for CAH’s property rights nor the safety of anyone entering what has become a worksite that is presumably governed by OSHA safety requirements.” (Emphasis in original) After being alerted to the trespass, SpaceX reportedly gave CAH a “lowball offer for less than half” of the lands value, with a 12-hour window to accept. CAH politely declined, and filed suit against SpaceX. Per the lawsuit, SpaceX never asked permission to conduct these activities and has continued to use the plot as a staging ground for construction projects to this day. As a result of this trespass, CAH claims that it has been deprived of the property’s full use. Additionally CAH states that the work has irrevocably damaged its reputation, tying their land to Elon Musk by association and preventing CAH from fulfilling its promise to backers that the land would be protected from “racist billionaires and their dumb vanity projects.” CAH accordingly has sued SpaceX for Trespass Nuisance, Unjust Enrichment, and Tortious Interference to the tune of $15 million. CAH promises to distribute the proceeds among the original backers as an apology for allowing SpaceX to damage the land. This lawsuit, while sensationalized by the nature of the litigants, can serve as an important reminder to anyone engaging in a construction project – check to make sure you have all the permits before beginning work. Lastly, knowing CAH's brand, motion papers could contain some interesting verbiage going forward. Previous Next Emily C. Walpole Emily C. Walpole Associate 332 345 2226 ewalpole@wcmlaw.com Contact