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News Lack of Knowledge Could Mean No Case July 5, 2024 < Back Share to: ​ A slip-and-fall accident does not mean that merely demonstrating that the person slipped and fell is sufficient. Unless there is evidence showing that the defendant had knowledge of the allegedly dangerous condition, the case may be dismissed. This scenario is exactly what transpired in Suarez v. Costco Wholesale Corp . Plaintiff, Isabel Suarez, testified that she slipped and fell on what appeared to be some “soap or some other similar substance” while shopping through Costco. However, Suarez presented no evidence indicating whether any Costco employee was aware of the substance on the floor. Costco filed a motion for summary judgment, to which Suarez failed to respond. Although Suarez did not oppose the motion, Costco still had to show that it was entitled to summary judgment. Here, the court determined that there was no genuine issue of material fact because the record “was completely devoid of any evidence supporting that [Costco] knew about the soap on the floor prior to [Suarez’s] fall, or that [Costco] somehow caused or created the condition on the floor.” Accordingly, the U.S. District Court for the Southern District of Florida entered summary judgment in favor of Costco. In most instances, a premises owner owes a duty of care to individuals on their property, particularly business invitees. This case underscores the necessity for a premises owner to possess actual or constructive knowledge of a hazardous condition. Without such knowledge, despite resulting injuries to a potential plaintiff, the premises owner may not be held liable. A slip-and-fall requires more than a mere demonstration of the accident itself. Absent evidence of defendant’s knowledge of the hazardous condition, there can be no breach of the duty of reasonable care. Suarez v. Costco Wholesale Corp. .pdf Download PDF • 250KB Previous Next Contact

News It's Time For Investors To Pay Up (NY) March 26, 2021 < Back Share to: When a new condominium building in New York City is found to have construction defects, who pays? In 2013, New York courts ruled that condominium boards could only seek compensation from investors if the board could prove a fiduciary relationship existed between the board and the investors. This ruling made it almost impossible for boards to recoup compensation for construction defects because condominiums are often developed by a single-purpose entity, formed merely to construct the building, sell the units, and distribute the proceeds to investors. Once the proceeds are distributed, the entity is often dissolved, leaving no money and boards left alone to pay the damages. However, a recent Appellate Division decision regarding a condominium in the Financial District, Board of Managers of BeWilliam Condominium v. 90 William St. Development Group LLC, reversed this 2013 decision. In this case, the condominium building was completed in 2008 with a projected sellout of $97 million. Yet, the condominium board began to complain about construction defects in 2010, which led to claims of “shoddy work” in their 2013 complaint. With this new ruling, investors could now be held responsible for paying a portion of damages resulting from construction defects. As a result of this decision though, investors will not be automatically held liable. Instead, condominium boards that are fiscally unable to pay damages will now have the ability to seek recovery from investors by “following the money.” Although the exact amount of damages the condominium board will be able to recover is yet to be determined, as a trial is still pending on the $3 million in damages, this case will not only allow unit owners to be made whole but will also not put all of the burden on a condominium board. Thanks to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News No Recovery for Bitten Broker (NJ) June 29, 2018 < Back Share to: In Ward v. Ochoa, plaintiff allegedly serious injuries after being attacked by a pitbull while performing an appraisal of a property. She brought suit against defendants Century 21 Worden & Green and Ken Song for her injuries. The trial court granted summary judgment in favor of defendants and dismissed plaintiff’s claims, leading to her subsequent appeal. Song had entered into a listing agreement with the homeowners with a view toward conducting a short sale of their foreclosed residential property. Song, a realtor employed by Century 21, was the listing agent and the buyer’s agent. It was Song’s responsibility to ascertain the number and breed of the dogs the homeowners owned during the period of the listing agreement. Plaintiff, a licensed real estate appraiser, was assigned to inspect and appraise the subject property. Plaintiff was contacted directly by Land Safe Appraisal Services to perform the appraisal of the property. She was unable to get in touch with the residential property owners, so she contacted Song to facilitate making the appointment for the appraisal. At her deposition, plaintiff testified that no inquiry was made as to whether the home was owner occupied or if dogs were on the premises. However, Song informed plaintiff that there was a dog on the premises prior to the date of the appraisal. The homeowners contended that their dog did not have any vicious propensities prior to this incident. When plaintiff arrived at the property for the appraisal, there were two dogs crated in the kitchen and an older, lethargic pitbull was in the bedroom. Plaintiff described the older dog as calm and docile and did not object to the presence of any of the dogs or request their removal. The first half of the appraisal was without incident. As plaintiff examined the exterior of the home, she observed that the dogs were now out of their crates and on the deck making noise. As plaintiff walked toward her car, one of the pitbulls charged her and she ran away in fear. At the foot of the driveway, plaintiff was repeatedly attacked by one of the pitbulls which resulted in her sustained a fractured radius and nerve damage requiring surgery. It was undisputed that plaintiff never had a written agreement with Century 21 or Song. Further, the court found that the defendants were in compliance with the Century 21 internal policy to ensure that pets were appropriately secured by homeowners, as evidenced by the fact that the dogs were restrained and crated at the time plaintiff arrived. The trial judge determined that plaintiff could not maintain a negligence claim because no duty of care existed between the parties. The appellate court on review determined that plaintiff was injured as a result of her employment with P&R. The record was devoid of any evidence to suggest that plaintiff was a “customer” of Century 21 or Song. Consequently, there was no legal relationship between the parties and no privity of contract. As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed with prejudice. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Putting The Squeeze On Policy Language (NY) April 6, 2017 < Back Share to: A New York federal court recently held that Hartford did not have a duty to defend or indemnify its insured, Spandex House, in an underlying lawsuit in which Spandex was sued for copyright infringement. The ruling in Spandex v. Hartford Fire Insurance Company, thus represents a big win for New York insurers who seek to have their contracts enforced as written. In the underlying action, a fabrics company alleged that Spandex had “created, sold, manufactured, caused to be manufactured, imported and/or distributed” fabrics and garments identical to the company’s own designs. The lawsuit further alleged that Spandex violated the company’s rights through its marketing and advertising activities. Hartford denied coverage based on the policy’s IP Exclusion, which barred coverage for personal and advertising injury 1) “arising out of” allegations of infringement of intellectual-property rights, and 2) any damages alleged in “any claim or ‘suit’ that also alleges” infringement of intellectual property rights. The court first held that the exclusion was unambiguous. In so doing, the court refused to consider proffered evidence regarding Hartford’s apparent decision to defend a different insured under similar circumstances. Instead, the court reiterated longstanding New York law that extrinsic evidence may not be used to create an ambiguity in language that was clear on its face. Secondly, the court held that the advertising exception to the IP exclusion was inapplicable. This exception stated the exclusion did not apply “if the only allegation in the claim or ‘suit’ involving any intellectual property right is limited to: 1) [i]nfringement, in your 'advertisement,'" of copyright, slogan, or title, or "2) [c]opying, in your ‘advertisement,’ a person's or organization's ‘advertising idea’ or style of ‘advertisement.’” The court held that, while there were allegations of advertising infringement, “the bulk of the allegations of infringement relate not to advertisements but to sale and distribution,” and thus the exception did not apply. Consequently, this case illustrates that New York courts will likely uphold similar IP exclusions despite pressure from the Insured claiming coverage should nonetheless be provided. Thank you to Doug Giombarrese for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Court Allows Insurer to Recover Damages Due to Misrepresentation (NY). January 11, 2012 < Back Share to: Typically, when an insurer relies on material misrepresentations made by the insured upon application for coverage, the appropriate remedy is rescission of the policy. But there may be circumstances where rescission is impractical or inappropriate, as recently occurred in Syncora Guarantee Inc. v. Countrywide Home Loans, Inc. As has been well documented, Countrywide has been under fire for various lending practices that were exposed when the housing bubble burst. Here, Countrywide sold or conveyed Mortgage Loans to trusts. The trusts, in turn, issued notes backed by the Mortgage Loans to investors. The investors were promised a return of principal with interest. Syncora, in essence, insured that payments received from the Mortgage Loans would be sufficient to cover the payments due to the investors. If the mortgages were not paid, the policies issued by Syncora would cover the shortfall. Syncora eventually filed suit against Countrywide, alleging that Countrywide misrepresented the terms of the underlying Mortgage Loans, and claims that if it had known the true details of the loans, it may have either declined to issue its financial guaranty insurance policies or issued the policies on different terms. Syncora made claims for fraud, breach of contract, and for “rescissory damages.” The insurer argued that it was entitled to rescissory damages because rescission of the policy would be unfair to the investors, was prohibited by the underlying investment contracts, and it also appears the Syncora had already paid out indemnity under the policies. The Court pointed out that, “rescissory damages, while not often used in New York, are far from an unknown form of relief. … Rescissory damages are designed to be the economic equivalent of rescission in a circumstance in which rescission is warranted, but not practicable. A solid body of case law so holds.” Countrywide argued that several courts applying New York law have held that rescissory damages are not available in New York, but the Court found that, although the cited cases did not grant rescissory damages, the cases did not hold against their availability. The Court found that, under the circumstances of this case, rescission was warranted but impractical. As such, the Court held that if Syncora can prove its case, it is entitled to rescissory damages, less premium collected. If you would like more information about this post, please write to mbono@wcmlaw.com     Previous Next Contact

News Allegation of "Negligent Misrepresentation" Fails to Trigger Coverage in PA January 12, 2009 < Back Share to: In Erie Insurance Exchange v. Maier, the Pennsylvania Superior Court recently held that a lawsuit did not allege an “occurrence” under the Erie policy, even though the allegations against the insured included a claim of negligent misrepresentation. The underlying lawsuit was filed by First National Bank, and its complaint alleged the purchaser (Erie's insured) and the seller of a house (a debtor to the bank) participated in a fraud upon the bank as a creditor. The bank claimed the parties misrepresented the true purchase price of the house in order for the seller to obtain additional cash from the transaction. The parties set the purchase price of the house at $650,000 and the bank agreed to forego its interest in the house that was higher than that amount. But the insured also paid the seller an additional $200,000 for “personal property” in which, conveniently for the seller-debtor, the bank had no security interest. A single count in the complaint alleged that the insured made a "negligent misrepresentation," and the insured alleged that was sufficient to trigger coverage under the Erie policy. But the court ruled that there was no “occurrence” under the policy because the bank acknowledged the insured knew that the sale price was undervalued. In fact, the Bank would be unable to prevail in the lawsuit without proving the insured was involved in an intentional fraud. Couching the claim in terms of the insured’s negligence did not trigger coverage, and thus, Erie had no duty to defend or indemnify the insured. The important point for insurers and counsel is that the the use of a "magic word" such as negligence in a pleading is not always enough to carry the day in coverage controversies. Thanks to Mendel Simon for his contribution. http://www.aopc.org/OpPosting/Superior/out/a30005_08.pdf Previous Next Contact

Emily C. Walpole Associate New York 332 345 2226 ewalpole@wcmlaw.com Professional Experience Emily handles a wide range of issues, with extensive past experience in New York labor and employment law issues, including harassment and discrimination cases, whistleblower claims, and on-site injuries. Her past work includes fact analysis and investigations, drafting pleadings and motions, legal research into unique corner cases of New York law, and assistance with expert examinations at trial. Prior to entering the legal profession, Emily worked in professional theatre. She worked as a director, stage manager, and scenic carpenter in addition to taking acting roles where her schedule allowed. She brings this communication and project management experience to her work in the law. Emily received her J.D. from the University of Virginia School of Law. While in law school, Emily became active with the National LGBTQ+ Bar Association, where she now serves as a member of the membership committee, New Lawyer’s Division. Prior to joining Wade Clark Mulcahy, she worked as a labor and employment attorney at a global corporate firm in New York, NY. Honors and Distinctions 40 Best LGBTQ+ Lawyers Under 40, National LGBTQ+ Bar, 2023 Eagle Scout Phi Beta Kappa Professional Activities Emily is a member of the National LGBT Bar Association and sits on the Membership Committee, New Lawyer’s Division. She regularly speaks at the Bar’s Lavender Law conference on issues surrounding new lawyers and on employment law issues. Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Education J.D., University of Virginia School of Law, 2020 B.A. in Theatre, University of South Carolina, 2013 Bar Admissions New York Download

News Insurers In SUM Arbitration Must Timely Seek Discovery Or Risk Losing The Right To Do So November 4, 2021 < Back Share to: In In the Matter of Arbitration Allstate Insurance Company and James M. Twomey, an insurer moved to stay arbitration of a supplementary uninsured/underinsured motorist (SUM) claim to compel discovery in aid of arbitration pursuant to CPLR 3102 (c). The Supreme Court denied the initial Petition and the insurer appealed. The Fourth Department affirmed, finding that the Supreme Court correctly found that the insurer “had ample time . . . within which to seek discovery of the respondent insured as provided for in the insurance policy, and unjustifiably failed to utilize that opportunity” to obtain the requested discovery. The Fourth Department also found that the insurer failed to establish the “extraordinary circumstances” necessary to warrant court-ordered disclosure in aid of arbitration under CPLR 3102 (c), or that the discovery if it was allowed would be inadequate for it to establish its case. The court also rejected the insurer’s argument that the insured respondent’s demand for arbitration was premature in that he had not complied with the terms of the SUM endorsement in the policy. The insurer failed to properly raise the issue on appeal, but the court nonetheless found that the insurer failed to show that its insured had failed to comply with the terms of the endorsement. This decision highlights the importance of promptly seeking discovery in SUM arbitration and shows that an insurer can lose the right to do so if it does not seek discovery in a timely manner. Please e-mail John Diffley with any questions. Previous Next Contact

News Two-Year Old Photo is Sufficient to Support Negligence Claim (PA) October 16, 2020 < Back Share to: In Taylor v. Lots for Sale LLC, plaintiff fell and was injured when she stepped into a two-inch drop-off on the sidewalk in front of Lots for Sale, LLC (“Lots for Sale”). At the non-jury trial, the plaintiff presented photos of the sidewalk where she fell, including photos establishing that the drop-off existed for more than two years before her fall. The trial court found in Taylor’s favor, and Lots for Sale subsequently appealed. In their appeal, Lots for Sale argued that plaintiff failed to present sufficient evidence that Lots for Sale knew or should have known of the drop-off. The Superior Court noted that, according to the photos, Lots for Sale had ample time to take notice of the drop-off and repair the defect. The Superior Court upheld the trial court’s ruling. This case demonstrates the importance of inspecting a commercial property and the surrounding sidewalks for potential defects. Leaving a potential defect for several years can be used against you in a future litigation. Thanks to Nicholas Wright for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Out-Of-Possession Landlord Escapes the Trap February 2, 2011 < Back Share to: < ![CDATA[Out-Of-Possession Landlord Escapes the Trap]]> Previous Next Contact

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News "Borrowed Employee" Status Remains Question of Fact in Pennsylvania December 20, 2013 < Back Share to: Recently, the Pennsylvania Superior Court reiterated that the employment status of a “loaned” laborer is a question of fact with respect to the applicability of the workers compensation bar. In the case of Shamis v. Moon, the plaintiff was the direct employee of a general contractor charged with overseeing the expansion of the Pennsylvania Convention Center in Philadelphia. More specifically, the plaintiff alleged in his complaint that he was “loaned” to a demolition subcontractor working on the project, and sustained severe injuries when an employee of the same ran him over with a dump truck. In light of his injuries, the plaintiff filed a workers’ compensation claim against the general contractor, and later sued the subcontractor and its employee in the Pennsylvania Court of Common Pleas. In responding to the plaintiff’s allegations, the subcontractor eventually moved for summary judgment and asserted that it was also the plaintiff’s employer for the purposes of the workers’ compensation bar under the “borrowed employee” doctrine. To this end, the subcontractor presented evidence from the record indicating that it, not the general contractor, actually supervised the expansion and directed the plaintiff in his duties. Perhaps surprisingly, the Philadelphia trial court agreed and granted summary judgment on the basis of the workers’ compensation bar. On appeal to the Pennsylvania Superior Court, the plaintiff argued that the trial court erred as a matter of law when it applied the “borrowed employee” doctrine. Specifically, the plaintiff argued that Pennsylvania law recognizes the doctrine only when there is sufficient evidence that the employee “passed under the [putative] employer’s right of control with regard to the work to be done and the manner performing it.” According to the plaintiff, however, the record in Shamis was conflicted in respect of the general contractor’s right of control vis-à-vis the defendant subcontractor. In particular, the plaintiff noted to the Superior Court that although he took direction from the subcontractor, the general contractor maintained a contractual right and obligation of supervision that called into question his employment status for purposes of the workers’ compensation bar. In ultimately endorsing the plaintiff’s position, the Superior Court agreed that questions regarding “borrowed employees” are intrinsically fact sensitive and rely heavily on factors that should be considered by a jury. As a result, the Superior Court reversed and remanded the matter to the court below for further discovery and trial. Shamis is a reminder that while the “borrowed employee” doctrine may serve as a viable bar to workplace injury claims in Pennsylvania, the defense requires a significant and detailed factual basis in order to succeed. Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact