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News Navigating the Affirmative Negligence Exception in Trip and Fall Cases Against the City September 20, 2024 < Back Share to: ​ In Doris Goodman v. City of New York , 2024 NY Slip Op. 04377, the Second Department addressed an appeal by the plaintiff in a trip and fall case, seeking reversal of the trial court’s denial of summary judgment. The plaintiff allegedly tripped and fell as a result of a depression abutting a manhole cover situated in a roadway in Brooklyn. She brought a negligence suit against the City of New York, alleging that the City created a defective condition when it performed asphalt repair work on the roadway. The plaintiff moved for summary judgment on the issue of liability, and the defendant cross-moved for summary judgment, seeking dismissal of the complaint. Generally, it is the duty of the city to maintain municipal streets and sidewalks free of defects or hazardous conditions. However, Section 7-210 of the NYC Administrative Code limits that duty by imposing liability only for defects or hazardous conditions for which its officials have been actually notified at a specified location ( Smith v. City of New York , 210 AD3d 53, 61). "To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect. Once that showing is made, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" ( Canaday v. Village of Wappingers Falls , 220 AD3d 731, 732). Notably, the affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition ( Wilson v. Incorporated Vil. of Freeport , 212 AD3d 870, 871). Therefore, if a defect develops over time due to a negligent repair, the affirmative negligence exception does not apply. Ultimately, the Second Department affirmed the lower court’s decision to deny summary judgment to the plaintiff. The court found that the plaintiff failed to present evidence that the defendant’s work immediately resulted in the creation of the alleged defect. The court further reasoned that the plaintiff’s argument that the defendant affirmatively created the defect by failing to remedy it was without merit, stating that "[t]he mere failure to maintain or repair a roadway constitutes an act of omission rather than an affirmative act of negligence." Therefore, the plaintiff did not establish her entitlement to summary judgment as she failed to demonstrate that the City affirmatively created the defect through an act of negligence. This case is significant when defending cases where we are co-defendants with the City. At WCM, we often face similar scenarios where the City appears to have created a defective condition, and we attempt to push liability onto the municipality. However, if prior notice is absent, proving that the City immediately created the defect is crucial for a successful summary judgment motion. Goodman v. City of New York .pdf Download PDF • 162KB Previous Next Christopher Roppolo Christopher Roppolo Associate +1 332 345 2264 CRoppolo@wcmlaw.com Contact

News No Duty to Defend: Insurers Off the Hook in "Ghost Gun" Sales Case September 20, 2024 < Back Share to: ​ In Granite State Ins. Co. v. Primary Arms LLC , insurance company plaintiffs Granite State Insurance Company ("GSIC") and National Union Fire Insurance Company of Pittsburgh, Pa. ("National Union") sought a declaratory judgment that they did not owe a duty to defend or indemnify their insured, Texas-based firearms dealer Primary Arms LLC ("Primary"), in three underlying lawsuits filed in New York. These lawsuits were brought against Primary under the insuring agreements in their commercial general liability policies. Granite State Ins. Co. v. Primary Arms LLC , No. 23 CIV. 7651 (LGS), 2024 WL 4008167, at *1 (S.D.N.Y. Aug. 30, 2024). In the underlying lawsuits, plaintiffs allege that Primary sold and shipped unfinished firearm parts that evaded gun control laws and regulations, and that its sales contributed to an increase in gun violence. The untraceable firearms made from these parts are referred to as “ghost guns.” Applying Texas law, the court found that the underlying lawsuits contained allegations that Primary “took deliberate action to enable the anonymous acquisition of uncontrolled firearms with the predictable outcome of increasing gun violence.” Therefore, Primary’s actions did not constitute an “accident” or “occurrence” triggering coverage under the GSIC and National Union policies. The court noted, “The claim is not that [Primary] forgot to run a background check on certain customers or misplaced its paperwork; rather, the allegations are that [Primary] made a deliberate choice not to implement internal controls.” Accordingly, the court granted the insurance companies' motions for summary judgment, finding that neither owed a duty to defend Primary in the lawsuits involving injuries due to Primary’s allegedly intentional conduct. Granite State Insurance Company v. Primary Arms LLC .pdf Download PDF • 169KB Previous Next Martha Osisek Martha Osisek Associate +1 267 857 3510 mosisek@wcmlaw.com Contact

News What is Considered Adequate Inspection Of An Establishment? September 20, 2024 < Back Share to: ​ When someone trips and falls and becomes injured due to some sort of “defect” in a store, have you ever thought about what constitutes an adequate inspection of that area and if the store actually did enough on their end to prevent the injury? How often must a store inspect an area to make sure it is clear to escape liability? Recently, in Sheva Arbit v. Costco Wholesale Corporation (Index No: 150925/19), the Supreme Court Appellate Division reversed an order from the Supreme Court in Richmond County, which had denied summary judgment. The plaintiff brought this action after she slipped and fell on food on the floor at the defendant’s store. Costco filed a motion for summary judgment to dismiss the complaint, but the Supreme Court of Richmond County denied the defendant’s motion. On appeal, the Supreme Court Appellate Division reversed the order. In a slip and fall case, the defendant moving for summary judgment has the burden of showing 1) they neither created the hazardous condition and 2) they did not have actual or constructive notice of the condition and a reasonable time to correct or warn about its existence. To meet its burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time of the fall. In this case, the incident occurred at approximately 4:00 p.m. The defendant submitted evidence through its daily inspection log that the area in question was last cleaned between 2:47 p.m. and 3:40 p.m., and at that time, no hazardous condition was found. The Costco employee testified that if any hazardous condition was observed, it would have been immediately cleaned. The court ruled that this inspection was sufficient to negate actual or constructive notice on behalf of the defendant. The Supreme Court of Richmond County should have granted the defendant’s motion for summary judgment. Arbit v. Costco Wholesale Corporation .pdf Download PDF • 736KB Previous Next Corey Stein Corey Stein Associate CStein@wcmlaw.com Contact

News The Fine Print Matters: Winning Contractual Indemnification Claims Between Tenants and Landlords September 20, 2024 < Back Share to: ​ Recently, in Errazuri v. E Food Supermarket, Inc. , 228 A.D.3d 732, the Appellate Division, Second Department decided on an appeal by two co-defendants in a personal injury suit, after both were denied summary judgment by the Supreme Court. Plaintiff filed suit after she sustained injuries arising from a trip and fall on a sidewalk abutting a supermarket, and sued both the tenant supermarket and the premises owner for negligence. In its responsive pleadings, the premises owner asserted a cross-claim against the tenant supermarket for contractual indemnification, citing the lease agreement between the co-defendants. After the close of discovery, the premises owner moved for summary judgment on its cross-claim, and the tenant supermarket also moved for summary judgment seeking dismissal of the cross-claim, and both motions were denied. On appeal, the Second Department affirmed the denial of summary judgment to the premises owner, but reversed the Supreme Court’s denial of summary judgment in favor of the tenant supermarket. In explaining its decision, the court took a very granular approach in analyzing the terms of the lease agreement. The lease agreement provided that the tenant supermarket would indemnify the premises owner for “any claims arising from any breach or default on the part of the supermarket in the performance of its obligations under the terms of the lease.” As such, the court then turned to other lease provisions to determine the responsibilities of each party. Importantly, although the main body of the lease provided that the supermarket was obligated to make “all repairs and replacements to the sidewalks,” the court did not end its analysis there. Instead, they found a conflicting term in the rider which stated that the owner was to “make all structural repairs and the tenant is required to make only nonstructural repairs.” The court then turned to another lease provision which stated that the tenant was required to “make nonstructural repairs to the sidewalks.” Because the rider provided that in the event of a conflict between the rider and the main lease, the rider prevails, the court concluded that the totality of the lease documents established that the responsibility to perform structural repairs of the sidewalk rested with the premises owner, not the tenant supermarket. Therefore, the supermarket was not obligated to indemnify the premises owner, and the supermarket was awarded summary judgment. This case highlights the need for defense counsel to obtain all relevant lease agreements and documents from insured tenants and landowners. When facing a contractual indemnity claim, it is critical to fully parse all lease provisions and interpret them in a way that is consistent with the rest of the agreement, as it could make all the difference in a risk transfer opportunity. Errazuri v. E Food Supermarket Inc .pdf Download PDF • 169KB Previous Next Andrew D. Henriquez Andrew D. Henriquez Associate +1 332 345 4094 ahenriquez@wcmlaw.com Contact

News Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases September 20, 2024 < Back Share to: ​ Res Ipsa Loquitur is defined in Pennsylvania as a discrete category of circumstantial evidence that may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. Essentially, the doctrine permits a jury to exercise common sense and conclude that the alleged accident could not occur absent negligence. Pennsylvania has historically taken this a step further and allowed the doctrine to be applied to cases involving complex facts and theories, including in medical malpractice cases. In Lageman by and through Lageman v. Zepp , the Pennsylvania Supreme Court analyzed the doctrine in a medical malpractice action and clarified the scope of when the doctrine can be given as a jury instruction. Lageman by & through Lageman v. Zepp , 266 A.3d 572 (Pa. 2021). In Lageman , the trial court originally returned a defense verdict and did not permit Lageman to instruct the jury on finding negligence under Res Ipsa Loquitur since Lageman also presented direct evidence of Zepp’s negligence. Lageman argued that “accepting Zepp's version of how he performed the procedure... arterial cannulation[] would not ordinarily occur in the absence of negligence”; and Pepple's further testimony that no other plausible causes were present, Lageman contended that she made out a prima facie case under Section 328D and was entitled to the instruction. The trial court disagreed and only instructed the jury on negligence since Lageman introduced direct evidence in support of her malpractice claim. Lageman by & through Lageman v. Zepp , 266 A.3d 572, 586 (Pa. 2021). Following the defense verdict, Lageman appealed to the Pennsylvania Superior Court, and the verdict was reversed. The Superior Court found that a plaintiff has no obligation to choose one theory of liability to the exclusion of the other. If the evidence satisfies the bare minimum requirements to support a jury instruction, the instruction should be given. Therefore, presentation of Res Ipsa Loquitur theory to support a medical malpractice claim was not precluded when the plaintiff also introduced direct evidence sufficient to support a malpractice claim, so Res Ipsa Loquitur was not the only avenue to a finding of liability; the two approaches to satisfying the plaintiff's evidentiary burden were not mutually exclusive. Zepp appealed the Pennsylvania Superior Court’s finding, but the Pennsylvania Supreme Court affirmed and found that Lageman was entitled to have the jury instructed on both theories of liability. The Pennsylvania Supreme Court affirmed that in these “gray zone” cases, where the plaintiff presents direct evidence of negligence and circumstantial evidence of negligence under the doctrine of Res Ipsa Loquitur, the jury may be instructed on both theories of liability. Lageman by and through Lageman v. Zepp .pdf Download PDF • 502KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 412 605 7823 apandittayal@wcmlaw.com Contact

Karl Eschelbach IV, Esq. Counsel New York 332-345-2168 keschelbach@wcmlaw.com Professional Experience With a versatile background in the legal profession, Mr. Eschelbach brings extensive experience in both plaintiff and defense roles across a variety of legal disciplines. Specializing in labor law, personal injury, medical malpractice, and property damage, Mr. Eschelbach has demonstrated an ability and commitment to delivering favorable outcomes for clients. Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education Juris Doctorate, Villanova University, 2012 Master’s Degree, Durham University (UK), 2009 Bachelor’s Degree, Drew University, 2007 Bar Admissions New York

Christopher Roppolo Associate New York +1 332 345 2264 CRoppolo@wcmlaw.com Professional Experience Chris is a graduate of the Villanova Charles Widger School of Law. While at law school, Chris was a two-time participant and quarterfinalist at the Tulane International Baseball Arbitration Competition, where he participated in mock Major League Baseball Salary Arbitration proceedings. He also interned for Rep 1 Sports, in Irvine, CA. Prior to law school, Chris was a two-year letter winner for the University of California, Davis baseball team before he moved on to study at the London School of Economics and Political Science. Chris enjoys traveling, fitness, and exploring the New York City food scene. Professional Activities Member, Pennsylvania Bar Association Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Villanova University Charles Widger School of Law B. A., University of California, Davis Bar Admissions New York Pennsylvania

News Coverage Limits, Continuing Causes, and COVID-19: District Court of New Jersey Holds COVID-19 Executive Orders Constitute One “Occurrence” September 13, 2024 < Back Share to: ​ In March of 2020, the Governor of New Jersey issued a series of Executive Orders requiring entertainment businesses to close indefinitely due to the COVID-19 pandemic. See 2024 WL 2763762, at 3 (D.N.J. May 29, 2024). Subsequently, the Governor issued additional Orders affirming the closures. Id. at 4. Count Basie submitted a claim to its insurer, Zurich, seeking coverage for its business losses from the closure. Id. The Policy’s Business Income Coverage (“BI Coverage”) stated Zurich would cover up to $1,900,001 of business losses from suspending operations due to “direct physical loss.” Id. at 1. The Communicable Disease Business Income Coverage (“CD Coverage”), in contrast, provided $100,000 per occurrence for loss of business income “caused by an order of … [a] governmental authority” which prohibits access to the premises. Id. at 2. On review, the District Court of New Jersey held that Count Basie’s losses triggered the Policy’s CD Coverage, but only for $100,000 of the claimed damages. In so holding, the Court rejected three of Count Basie’s arguments. First, Count Basie argued the $1,900,001 limit of the BI Coverage could be applied to losses under the CD Coverage form due to ambiguity in the Policy language. Id. at 6. Evaluating the CD and BI Coverages’ respective limits, the Court found no ambiguity and that Count Basie’s proposed application would conflate two distinct forms of coverage. Id. at 7. Second, Count Basie argued each Order constituted a separate “occurrence” triggering the Policy’s business income coverage. Id. at 8. To determine the number of “occurrences,” New Jersey courts must consider whether “one proximate, uninterrupted, and continuing cause” produced all the claimed damages. Id. Applying this test, the Court concluded the Orders, albeit individual, were all issued as part of New Jersey’s continuing response to the pandemic. Id. at 9. Thus, Count Basie’s losses stemmed from one cause—the spread of COVID-19. Id. Finally, Count Basie contended the $100,000 limit could be applied on a per premises basis, as the CD Coverage form limited coverage to any one “premises.” Id. at 10. However, the Court emphasized the language of the Policy’s Declarations, which explicitly stated the CD Coverage limits would be determined on a per occurrence basis. Id. at 11. Moreover, had the Policy intended to create a per premises requirement for the CD Coverage, it could have done so—as it did for several other coverage limits. Id. Count Basie Theatre Inc v. Zurich American Insurance Company .pdf Download PDF • 265KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News It Wasn’t the Pig’s Fault September 13, 2024 < Back Share to: ​ In Bristol v. Biser , Plaintiff and her family were forced to evacuate their apartment building due to a fire allegedly caused by the building superintendent roasting a pig in the basement. Plaintiff and her family left the apartment building, waited in their car and then moved the car. While walking back to the apartment building, she slipped and fell on an icy condition in front of a house. Bristol v. Biser , No. 2020–03287, 2024 WL 4139211 (2d Dep’t Sept. 11, 2024). Plaintiff sued Lenox180, LLC, the owners of her apartment building, and the owners of the house, alleging, inter alia , claims of negligence and negligent infliction of emotional distress. Summary judgment was granted in favor of the defendants. On appeal, the Second Department upheld the trial court’s findings as to both causation and notice. As for causation, when moving for summary judgment in a negligence action, the defendant has “the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident.” Id. , at *2 (citations omitted). While proximate cause is generally an issue of fact for a jury, it may be determined as a matter of law where “a defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm.” Id. (citations omitted). The Court found the roasting of the pig in the basement of the apartment building was not the proximate cause of the fall, as “the risk created by the original [alleged] negligence was not the risk that materialized into harm.” Id. (citation omitted). Here, when Plaintiff fell, she had already left the apartment building, waited in her car, moved her car and was walking back to the apartment. Accordingly, Lenox180’s negligence had ceased at that point. With respect to the slip and fall, the Court agreed with the trial court that the homeowners sufficiently established they did not create the condition nor had any constructive notice of it. Id. This decision serves as a reminder to gather as much evidence as possible in discovery, use it to your advantage and be aggressive in filing motions for summary judgment when the evidence so warrants. Bristol v. Biser .pdf Download PDF • 148KB Previous Next Brian T. Noel Brian T. Noel Counsel +1 267 331 3891 bnoel@wcmlaw.com Contact

News Notice of Claim Pitfall: New York Appellate Court Confirms That Original Deficiencies Cannot Be Corrected With §50-h Hearing Testimony September 6, 2024 < Back Share to: ​ To maintain the right to file a tort lawsuit against a municipality or public corporation in New York, a claimant must serve a Notice of Claim within 90 days of the date of the loss pursuant to General Municipal Law §50-e. The notice must contain certain information to allow the municipality to properly investigate and assess the claim, and the failure to timely provide such information can be fatal to a subsequent lawsuit. The Second Department recently addressed these issues in Behrens v. Town of Huntington . In that case, plaintiffs alleged that they sustained injuries while slipping on a gangway leading to floating docks. Both plaintiffs served separate but similar notices of claim near the end of the 90-day period, with the notices describing the incidents but lacking detail about the location and cause. Four months after serving the notices, the plaintiffs testified at a §50-h hearing and subsequently filed a personal injury action, claiming their falls were due to defects or substances on the gangway. The Town moved to dismiss the claims, arguing that the notices failed to provide the specific information required under GML §50-e(2). The Supreme Court agreed and granted defendants motion, dismissing the lawsuit with prejudice. The Second Department affirmed, holding that plaintiffs’ initial 90-day notices were not only inadequate but that a court cannot use a General Municipal Law §50-h hearing to amend or supplement the initial claim. The Court observed that a Notice of Claim is designed to allow municipalities to investigate and assess the claims and must include: i) the nature of the claim, ii) the time, iii) the place, and iv) the manner in which the claim arose. For effective notice, the municipality must be able to "locate the place, fix the time, and understand the nature of the accident," particularly for roadways and walkways due to their “transitory nature.” The Court also observed that when considering a motion to dismiss as to a Notice of Claim, courts may review not only the notice itself but also any additional evidence presented. However, the additional evidence cannot be used to alter the fundamental nature of the claim or introduce new allegations. The Court concurred with the lower court’s decision that the original Notices of Claim did not adequately describe the location and cause of the incidents and the §50-h hearing testimony could not rectify these deficiencies. The Behrens decision highlights the importance of evaluating the sufficiency of information provided in Notices of Claim served under the General Municipal Law and confirms that deficiencies cannot be cured with subsequent testimony in a §50-h hearing. Municipal defendants should move to dismiss a complaint where the information provided was not sufficient as a matter of law. Behrens v. Town of Huntington .pdf Download PDF • 234KB Previous Next William A. Healy IV William A. Healy IV Associate +1 332 345 4186 whealy@wcmlaw.com Contact

News Recent New York Decision Highlight the Importance of Documenting Condition of Property During Utility Work September 6, 2024 < Back Share to: ​ As a best practice, property owners in New York should keep records concerning the condition of their property to mitigate potential premises liability. This is particularly true where utility work is taking place on the property or an adjacent sidewalk. Even when facing a seemingly questionable lawsuit, unless an owner can document the condition of its property and the work being performed, property owners face an uphill battle in dismissing a complaint. This issue was addressed in the Second Department’s recent decision in Samodurova v. Consolidated Edison Co. of N.Y., Inc. In that case, the plaintiff was injured when she allegedly tripped and fell over the edge of a metal plate that was located over an opening in the sidewalk near a Quick Check convenience store in Brooklyn. Con Edison was performing work on the sidewalk and had placed the metal plate over the opening. Two of the defendants, Fratelli Realty and Quick Check, moved for summary judgement showing that they did not own, create, maintain, or use the subject metal plate. The Supreme Court agreed and granted the motions. The Second Department affirmed, finding that the defendants demonstrated, prima facie, that Con Edison was responsible for the plate based on testimony showing that Con Edison opened up that plate to run power cables and photographs showing the plate with Con Edison’s logo. The defendants also pointed to testimony showing that the defendants kept the sidewalk in good repair and that none of their employees directed or assisted Con Edison’s sidewalk work. Accordingly, the Court found that the Supreme Court had properly granted the defendants’ motion for summary judgment. This decision highlights several important risk management practices for property owners. The first is to document the condition of property and adjacent sidewalks before, during and after utility work, particularly if the work itself creates a potentially dangerous condition. Owners should also avoid having any involvement in the work to avoid potential liability arising from the work. Taking these steps could provide the basis for a dismissal of premises liability lawsuits. Samodurova v. Consolidated Edison Co. of N.Y., Inc. .pdf Download PDF • 1.02MB Previous Next Alexander Rabhan Alexander Rabhan Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News FLORIDA’S NEW YEARS RESOLUTION: Complying With Amendments To Rules of Civil Procedure Promoting Active Case Management September 6, 2024 < Back Share to: ​ Effective January 1, 2025, every civil case filed throughout Florida’s twenty judicial circuit courts must adhere to a new procedural framework that stresses strict compliance with deadlines and establishes exacting standards to be met by any party seeking to modify or extend them. Even before Florida’s courts were awash with cases filed on the eve of comprehensive tort reform legislation being enacted and the courts were backlogged with Covid-era cases, Chief Justice Canady established the Workgroup on Improved Resolution of Civil Cases in 2019, with the aim of “promot[ing] the fair and timely resolution of civil cases.” In Re: Amendments to Florida Rules of Civil Procedure (Fla. 2024). Under the new amendments, within 120 days of a complaint being filed, the court will now assess the case to determine the amount of judicial attention expected to be required for its resolution and assign it to one of three case management tracks: streamlined, general or complex. The lion’s share of cases will be classified as “general.” The court will issue a case management order with a projected or actual trial period and establish deadlines for service, adding new parties, completing fact and expert discovery, resolving all objections to pleadings and pretrial motions and completing court-ordered alternative dispute resolution. The deadlines established by the case management order must be strictly enforced and are only able to be modified by court order. The court may set, either on its own notice or on proper notice by a party, case management conferences at any time. Attorneys appearing at such conference must be prepared to address all pending matters in the case, have authority to make representations to the court and enter into binding agreements concerning motions, issues and scheduling. The court may sanction any party for failing to appear at a case management conference by dismissing the action, striking the pleadings, limiting proof or witnesses or imposing any other sanction it deems appropriate. To modify a deadline, amend a case management order or alter a projected trial period, a motion must specify the basis for the extension and the time at which the basis became known to the movant. The motion must also specify whether the extension is agreed by the parties, the specific date proposed for the extended deadline or projected trial period, and the action and timetable that will enable the movant to meet the proposed deadline or trial period. Motions to continue trial “are disfavored and should rarely be granted and then only upon good cause shown.” Id . A motion for continuance must be filed promptly upon the need arising for the continuance. Such a motion must certify that the movant made a reasonable effort to confer with opposing counsel. The failure to do so may form the basis for sanctions. The motion must be made in writing and state the basis for the continuance and the time at which the basis became known to the movant and whether the continuance is agreed by the parties. The motion must also identify the action and dates needed to be trial ready and include dates for third-party witnesses’ and/or expert witnesses’ availability; the specific date proposed for trial and whether that date is opposed. The motion must be signed by the named party requesting such relief. This new rubric requires counsel to be even more vigilant in actively advancing the defense of their clients or risk sanctions from the court. Previous Next Justine Elias Justine Elias Senior Associate 561 232 2587 jelias@wcmlaw.com Contact