Wade Clark Mulcahy LLP

Steven F. Goldstein Of Counsel Long Island +1 516 873 0011 sgoldstein@wcmlaw.com Professional Experience Six months after graduating law school in 1986 Steve went into private practice. Since that time. Steve has represented a hundred of clients, including department stores, camps, gyms, rock climbing facilities, horse farms, nursery schools, youth sports organizations, construction companies and all manner of business and individual clients. Steve has vast experience litigating, trials in all New York State and Federal Courts, including numerous appeals in all four appellate divisions. Steve has gained the trust of his clients to guide them on risk management issues and evaluating cases for settlement, motions for summary judgment, appeals and trial. Steve prides himself on being responsive and proactive in serving his clients’ needs and offering practical and sound legal advice. He represents his clients in a cost-effective and straightforward manner in a logical and amicable fashion. Steve has gained a reputation amongst his clients of not being afraid to take a case to verdict. Select Representations SUMMARY JUDGMENT MOTIONS WON BY STEVEN F. GOLDSTEIN, LLP Antonie Samuels v. Spruyt E. Lee – Claim No.: CCCP30016M1571 Kibriyaa Morgan v. Fencers Club, Inc. – Claim No.: C8502AHK3648 Cecilia O’Hanlon v. Kids of Mount Sinai – Claim No.: C8502CY06P9844 Craig Davidson v. Middle Country Central School – Claim No.: C3602AH23N0083 Alexandra Del Vecchio v. Hampton Gymnastics – Claim No.: C3602HF35Q5521 Paul Russel v. Ross Kaplan – Claim No.: C9502AG03M0897 Martin Lopez v. D&D Day Care – Claim No.: CCCP30050M2140 Andrew Podosenin v. Lana’s Gymnastics Club – Claim No.: C3602HF22K9525 Janine Weisberg v. Town of Wallkill – Claim No.: C8502CY28G0428 Marco Falcone v. US Lacrosse – Claim No.: C8502AH22M2175 Lori Mascia v. Robbins Lane – Claim No.: C3602AH23G4422 Gary Abrams v. Powerhouse Gym – Claim No.: Christa Niemann v. Prime Time Sports Center – Claim No.: C3602AH28K2776 Anthony Viteritti v. Baseball Heaven – Claim No.: C3602AH26H8639 Jeffrey Marshall v. The Booster Club of Smithtown – Claim No.: C3602AH24G9856 Daniel Lennon v. Town of New Windsor – Claim No.: C3602AH23H4079 Marco Bravo v. Elmont Soccer League – Claim No.: C8502AH20E4609 Darren Hightower v. West Islip Soccer Club – Claim No.: C9502AH20G5253 Joseph Olivieri v. Eastport South Manor Sports Assoc. – Claim No.: C3602AH23E5989 Joleen Vanacore v. City of Yonkers – Claim No.: C3602AH22C8049 Alejandro Merino v. Board of Education of the City of New York – Claim No.: C8502CY00A9226 Amy Umansky v. Pinon II – Claim No.: C8502HF23C8737 Kara Pepe v. Cosmopolitan Jr. Soccer League – Claim No.: C8502AH20E7084 Donna Craine v. Black Pine Karate DoJo – Claim No.: C3602HF00A-9265 Michael Palo v. Aiki Jiu Jitsu – Claim No.: C3602HF0111423 Kirill Simenchik v. Inter F& S Day Camp – Claim No.: C3602CY0509625 APPEALS WON BY STEVEN F. GOLDSTEIN, LLP Cecilia O’Hanlon v. Kids of Mount Sinai – Claim No.: C8502CY06P9844 Kibriyaa Morgan v. Fencers Club, Inc. – Claim No.: C8502AHK3648 Laura Lauretta v. Baseball Heaven Marco Falcone v. US Lacrosse Carmen Nunez-Wilson v. Elite Gymnastics Antonie Samuels v. Spruyt E. Lee Alejandro Merino v. Board of Education of the City of New York Janine Weisberg v. Town of Wallkill Martin Lopez v. D&D Day Care Honors and Distinctions Nassau County Bar Association Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education JD, Touro College School of Law BS, St. John’s University Bar Admissions New York District of Columbia Court Admissions United States District Court for the Eastern District of New York United States District Court for the Southern District of New York United States District Court for the Northern District of New York United States District Court for the Western District of New York

News 911 Calls Regarding Roaming Pitbulls Did Not Create "Special Duty" on Part of City. August 16, 2012 < Back Share to: In Sutton v. City of New York, a 90 year old was mauled to death by two pitbulls that had been roaming the neighborhood for three months. The plaintiff claimed that repeated calls to the police by the decedent's neighbors and family regarding the roaming pitbulls put the City on notice of the damager, and created a "special duty" to protect the decedent from attack. The court found that the plaintiff failed to satisfy the elements of the four part test to establish the "special duty." The elements are: (1) assumption by the municipality to act on behalf of the party that was injured; (2) knowledge on the part of the municipality that inaction could result in injury; (3) direct contact between the potential victim and the municipality's agents, and (4) the party's reliance on the municipality's affirmative undertaking. Since the decedent did not make any calls on his own, and had no direct contact with city, there was no "affirmative duty" to act on his behalf. Accordingly, the court granted the City's motion for summary judgment and dismissed the case. For more information about this post, please contact cfuchs@wcmlaw.com .   Previous Next Contact

News Judge to FDA: Get Your FSMA Regulations Done Already. July 5, 2013 < Back Share to: As we have long reported, the FDA has been quite derelict in getting the new Food Safety Modernization Act regulations in place. Deadlines have come and deadlines have gone and still no guidelines. This delay has resulted in the case of Center for Food Safety, et al. v. Margaret Hamburg, et al., USDC, NDCA. There’s a history of decisions in the case that make clear the Court’s frustration with the FDA and that frustration has now boiled over. In a recent decision, the Court has ordered the FDA to publish all proposed regulations by November 30, 2013, with the comment period to end by March 31, 2014, and the final regulations to be published by June 30, 2015. We’ll see if a court order compels action where bureaucratic momentum did not. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Pennsylvania Grocery Store Chain Faces Multiple Federal Lawsuits Over Face Mask Policy (PA) July 10, 2020 < Back Share to: Numerous lawsuits have been filed in the Western District of Pennsylvania against Giant Eagle, a Pennsylvania grocery store chain, over its face mask policy. Due to the Covid-19 pandemic, Governor Wolf has instituted various mandates in an effort to prevent the spread of the virus, including, inter alia, a requirement that individuals must wear face coverings while in public spaces. In the Complaints, it is alleged that Giant Eagle adopted a policy that requires shoppers to wear a face covering regardless of whether the shopper has a medical condition. Plaintiffs allege that they suffer from medical conditions that prevent them from wearing a face covering and were denied entry to Giant Eagle due to their refusal to comply with the store’s policy. Furthermore, plaintiffs allege that Giant Eagle’s policy is in direct contradiction to Governor Wolf’s April 19, 2020 Order which states, in relevant part, that individuals who cannot wear a mask due to a medical condition may enter the premises and are not required to wear a mask. Plaintiffs allege that Giant Eagle’s “arbitrary policy” violates Title III of the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). The Complaints allege that the grocery store chain treats its customers who cannot wear masks due to a disability like “lepers” rather than “guests.” Now that many states have begun to reopen retail establishments, we will likely see similar types of lawsuits filed. In addition, businesses will now be faced with the problem of balancing its interest in protecting the health of its customers with the possibility of being sued over its mask policies. We will keep you posted as this develops. Thanks to Rachel Thompson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Underinsured Motorist Benefits Exempt from Pennsylvania’s Double Recovery Rule April 12, 2013 < Back Share to: Recently, the Pennsylvania Supreme Court denied allocatur in the case of Smith v. Rohrbaugh wherein the defendant-appellant contended that underinsured motorist (“UIM”) benefits should constitute first-party payments for the purposes of calculating double recovery under 75 Pa. C.S. § 1722. As a result, the Supreme Court implicitly affirmed the intermediate appellate court’s overruling of Pusl v. Means which had previously insulated defendants from jury verdicts less than the benefits received under a plaintiff’s own policy. In Smith, the plaintiff was rear-ended when the defendant failed to stop her vehicle in time, causing various damages including physical injuries and lost wages. The plaintiff initially filed a claim for UIM benefits against his own automobile policy and settled for $75,000 before instituting a lawsuit against the defendant. Following a jury trial in which the plaintiff was awarded roughly $50,000, however, the defendant filed a motion to mold the verdict to zero in consideration of the UIM benefits received by plaintiff. While the trial court granted the motion, the Pennsylvania Superior Court ultimately declined to equate the UIM benefits to first-party payments. Specifically, the Superior Court recognized that its previously controlling decision in Pusl v. Means was wrongly decided insofar as § 1722 of the Pennsylvania Code does not apply to UIM benefits. According to the court, § 1722 provides an exhaustive list of statutorily defined benefits that limit further recovery at law. Included among these benefits are “first-party payments” that are not statutorily defined as incorporating UIM benefits despite the courts’ colloquial tendency to use the terms interchangeably. As a result, the Superior Court expressly overruled its precedent in Pusl and thus removed safeguards that traditionally inoculated defendants from judgments not in excess of UIM benefits received. Although the Superior Court’s decision in Smith was rendered during the latter part of 2012, the Supreme Court’s recent denial of allocatur tacitly affirms the shift below and should caution defendants against relying exclusively on the double recovery rule as a means of limiting liability. Thanks to law clerk Adam Gomez for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Pennsylvania Amendment Snaps Back At Snap Removal January 21, 2022 < Back Share to: On January 18, 2022, the Pennsylvania Supreme Court formally amended the Pennsylvania Rules of Civil Procedure clarifying that original service of process is satisfied per Rule 400(b) by a sheriff or competent adult in cases of state to federal court and permitting pre-service or “snap” removal pursuant to 28 U.S.C. § 1441. This change was initiated when the Pennsylvania legislature heeded the clarion call of the Third Circuit Court of Appeal’s call to action in Judiciary Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 154 (3d Cir. 2018), which identified conflicts between §1441, its “forum defendant” exception in Section 1441(b), and the former Rule 400 leading to inconsistencies across the state and a split amongst the circuit courts. Specifically, Section 1441(a) provides that a state action may be removed to a federal court where there is federal subject matter jurisdiction, including where there is complete diversity of citizenship between all plaintiffs and all defendants. Further, Section 1441(b) states the “forum defendant” exception: an action otherwise removable on the basis of diversity jurisdiction “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which the action is brought.” Section 1441(b) (emphasis added). In conflict, Rule 400(a) provides that the sheriff must serve original process of civil actions within the Commonwealth. While former Rule 400(b) enumerated certain civil actions to allow original service of process by sheriff or competent adult, Rule 400.1 carves out an exception for the service of original process in Philadelphia County. In turn, this tension led to different interpretations per venue, fostered the principle of “snap” removal, and in practice, has led to docket monitoring now available with increases in technology, professional service of process industries, and a race-to-the federal courthouse where prospects may be more favorable. In Encompass, Encompass Insurance Co., the defendant agreed to accept electronic service of process instead of requiring formal service of the complaint, however, when the plaintiff then filed suit against the defendant in the plaintiff’s home state and sent the defendant a copy of the filed complaint and a service acceptance form via email, counsel for defendant refused to accept service and thereafter removed the action to federal court. The Encompass court found that the face of Section 1441(b) does not prevent removal where the in-state defendant has yet to be properly served under the state law at issue, here, Pennsylvania. In noting how the district courts within the state and country were split, the Encompass court decided narrowly and ultimately kicked the issue to the Pennsylvania legislature. See Parker Hannifin Corp. v. Fed. Ins. Co., 23 F.Supp.3d 588, 596 (W.D. Pa. 2014) (concluding that “the forum defendant rule does not apply to this case because plaintiffs failed to properly serve [the in-state defendant] prior to removal of this case to federal court”). In turn, the Pennsylvania Civil Rules Committee proposed an amendment to Rule 400 enumerating circumstances of “snap” removal under Rule 400(b) which has formally been adopted per Order No. 727. In its report, the Committee notes that amended rule is intended to ameliorate “snap” removal and the holding of Encompass, as such polarized outcomes defeat the purpose of the Pennsylvania Rules of Civil Procedure in obtaining speedy determinations to actions. See Pa. R.C.P. 126. This amendment takes effect April 1, 2022. Practically, this change will make it difficult, but not impossible, for in-state defendants to remove a case from state court to federal court under diversity jurisdiction and signals the Pennsylvania court’s broadening interpretation of what it means to avail oneself to the forum state. Thanks to Kendall Hutchings for her contribution to this article. If you have any questions, please contact Matthew Care. Previous Next Contact

News Negligent Lawyering Misses Statute of Limitations on Intentional Torts (NY) October 15, 2019 < Back Share to: Statutes of limitations can be tricky and it’s very important to ensure what category your claim falls or you may be SOL! This blunder was made apparent in the case of Potter v. Zucker Hillside Hosp. (2019 NY Slip Op 07304) Plaintiff, as guardian ad litem for Rodney Carter, commenced an action in October 2011 stemming from an incident in April 2009. Carter, a paranoid schizophrenic, was admitted as an in-patient at defendant’s hospital and claimed an employee beat him causing loss of vision in his left eye. Plaintiff’s complaint alleged that Carter was taken down, restrained, and controlled in a careless and negligent manner causing severe injuries and damages. Defendants were sued under a theory of respondeat superior. The hospital moved for summary judgment asserting that the cause of action was an intentional tort, not negligence or malpractice and thus, barred by the one-year statute of limitations. The Supreme Court agreed and granted defendant’s motion. Plaintiff appealed. The Second Department affirmed in a decision stating that a court’s job is to look at the substance of the allegations rather than the characterization. As New York does not recognize a cause of action for negligent assault, the one year statute of limitations for assault and battery would apply. As a practice point, it is always key to make sure plaintiff’s facts align with the theories alleged in the complaint. The court looked at Carter’s deposition testimony to establish that assault was the correct cause of action despite the plaintiff’s characterization of a negligent takedown. The law is often frustratingly form over substance; refreshingly, the Court looked at substance over form this time. Had plaintiff also pleaded a cause of action based upon negligent supervision or security -- which we understand was referenced, but not specifically pleaded -- the complaint may have survived dismissal. Thanks to Mehreen Hayay for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Pennsylvania A Legislature Tags In For Third Round of Fight Against Governor Wolf’s COVID-19 Orders (PA) June 12, 2020 < Back Share to: Pennsylvania businesses, while understanding the unique threat posed by COVID-19, have not been uniformly pleased with Governor Wolf’s various shutdown orders that mandated large swaths of business closures. The Pennsylvania Supreme Court held that Governor Wolf had the authority to implement emergency measures. Businesses attempted to short-circuit the original stay-at-home orders arguing it exceeded the authority of the Governor and was unconstitutional for a litany of reasons. The PA Supreme Court disagreed. Now, the PA legislature passed a resolution terminating the emergency orders of Governor Wolf. The PA legislature is arguing that the Governor, in light of the resolution terminating the emergency orders, has no choice but to rescind all COVID-19 closures. The Governor, unsurprisingly, disagrees. The Governor points to a provision that requires his approval of almost any order, rule, or law passed by the legislature. Litigation has commenced. Future employers, hit with lawsuits arguing that an employee was exposed to COVID-19 in the workplace, could point to the resolution by the legislature, indicating that they believed it was “safe” to open and were merely complying with government wishes and trying to start earning money again. Conversely, a plaintiff could point to Governor Wolf’s pronouncements, arguing that it was unwise to open and that the executive branch still considered it unsafe. Thus, given this legal wrangling, on both sides, this will only be one wave in the coming COVID-19 litigation. It won’t be the last. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Is Facebook Fair Game For Investigation? October 11, 2010 < Back Share to: Technology almost always advances quicker than the law can keep up with it. However, attorneys may now have some guidance to an unanswered question – is Facebook fair game for investigation? Last week the New York State Bar Association and the New York City Bar Association both issued ethics opinions addressing when lawyers may use Facebook or other social networking sites to aid in litigation. The NYSBA addressed the question of whether an attorney, during a pending action, may view the profile page of a party that is not their client in order to obtain information, including impeachment material. The Association answered that this was an ethical practice, so long as the page was open for “public” viewing. The NYSBA contrasted this with a 2009 Philadelphia Bar Association opinion in which it was deemed fraudulent, deceitful, and against the ethics code for an attorney to have a third-party make a “friend request” to a non-represented witness in order to view that party’s private profile. The NYSBA opinion follows the logic that public information is available for anyone to view, while private information is not. In a very technical and detailed opinion, the NYCBA opined that attorneys or third-parties acting on the attorney’s behalf may send “friend” requests to individuals not represented by an attorney, provided that they identify who they are and why they are making a friend request. Similar to the Philadelphia Bar Association opinion, the NYCBA believes that the ethics code would prohibit attorneys from obtaining private information through deceitful means. While not specifically noted in either opinion, it seems to follow that the ethics code would prohibit sending a “friend request” to an individual represented by counsel. Of course if the party is represented by counsel, but has a public profile, then it would not violate any ethics codes if an attorney were to view the profile. Thanks to Alex Niederman for his contribution to this post. http://cityroom.blogs.nytimes.com/2010/10/01/when-lawyers-can-peek-at-facebook/ NYSBA opinion: http://www.nysba.org/AM/Template.cfm?Section=Home&CONTENTID=43208&TEMPLATE=/CM/ContentDisplay.cfm NYCBA opinion: http://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf Previous Next Contact

News First Department Follows the Second Department’s Lead in Dismissing Personal Injury Claims Based on Assumption of Risk March 8, 2016 < Back Share to: Recently, the Second Department dismissed a plaintiff's claim for personal injuries sustained while playing basketball at school. See, WCM Blawg, Of Interest, “Court Swats Away Basketball Injury Claims Under Assumption of Risk Doctrine” March 3, 2016. Just a week later, the First Department ruled similarly in Blumenthal v. Bronx Equestrian Ctr., and reversed a Supreme Court, Bronx County, decision which denied summary judgment to the defendants. In Blumenthal, plaintiff was thrown from a horse during a recreational ride at the defendant park owned by The City of New York, and through a stable operated by the Bronx Equestrian Center. The defendants moved for summary judgment based on the assumption of risk doctrine. The Court found that “[t]here is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks.” Id. Furthermore, the Court found that “[t]he risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport or horseback riding”. Id. The Court then addressed the claims against the City of New York which were based in premises liability. Plaintiff claimed that there were defects in the birdle path on which she was riding that contributed to the accident. The Court found that the City did not owe plaintiff a duty of care as the agreement between the City and the defendant stable placed that duty onto the stable. Finally, the Court found that there is no provisions of the agreement between the defendant City and the defendant stable that would allow plaintiff to be a third-party beneficiary to the terms of the contract. This decision shows that the assumption of risk defense will release a landowner or facilities operator from liability for any injury resulting from a voluntary recreational activity, despite (unsubstantiated) claims that defective conditions contributed to the incident. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Proposed OSHA Heat Injury and Illness Prevention Rule Could Create A New Species of Labor Litigation July 12, 2024 < Back Share to: ​ On July 2, 2024, OSHA released a new proposed rule that would create substantial compliance and recordkeeping commitments on all employers conducting outdoor and indoor work in settings where temperatures regularly exceed 80°F. This could notably affect construction, agriculture, and manufacturing, but includes in its scope all general labor. Under the proposed rule, employers are required to develop and implement a work site heat injury and illness prevention plan (HIPP) with site-specific information. The employer must also designate one or more “heat safety coordinators” to implement and monitor the HIPP. Employers must also identify heat hazards, by tracking local heat index forecasts provided by the National Weather Service or by monitoring the actual temperature or heat index at the individual work site. The proposed rule, if approved, would require employers to provide workers with water and shaded or air-conditioned areas to take breaks when temperature at the worksite reach 80 degrees Fahrenheit. At or above 90 degrees (so-called “high heat trigger” conditions), employees must be provided a 15-minute paid rest break at least every two hours in the break area. When determining a high heat trigger is met or exceeded, employees must be notified of the importance of drinking water, employee’s right to take needed rest breaks, and how to seek help for a heat emergency. This proposed rule will enter the public comment phase upon publication in the Federal Register, and it is anticipated that there will be major industry pushback against the new regulations. However, it should be noted that the Biden administration has come out strongly in favor of this proposed rule, based on the rising rate of heat related illnesses and deaths among laborers in the United States. It can be expected that there will be significant pressure for the administration to push for the proposed rule as written. Should this rule come into effect, employers in high-heat sectors such as construction, agriculture, and manufacturing may, in addition to the administrative cost of compliance, face a new species of litigation in employees bringing suit for injuries premised on failure to provide employees with breaks, failure to provide water, or failure to provide sufficient monitoring of high heat conditions. Previous Next Emily C. Walpole Emily C. Walpole Associate 332 345 2226 ewalpole@wcmlaw.com Contact

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