December 31, 2017
Labor Law 240: Guizzotti v. Advanced Gutter Sys., Inc. (N.Y. Sup. Ct., Erie Co.)
by Robert D. Leary, Esq. and Anant Kishore, Esq. In Guizzotti, plaintiff alleged he fell off a ladder while he was performing gutter replacement work for a subcontractor retained by defendant. Because the accident was unwitnessed, plaintiff provided the only account of how the accident allegedly occurred. In opposition to plaintiff’s motion on the Labor Law 240 claim, defendant pointed out several inconsistencies within plaintiff’s testimony, including details about the mechanics of the accident (i.e., whether the ladder “kicked out” or “twisted,” or whether the left foot fell into a crevice); the height from which plaintiff allegedly fell (i.e., 8 feet, 10 feet, or 15 feet); and the surface onto which plaintiff landed (i.e., path stones or grass). Defendant also pointed out inconsistencies between the testimony of plaintiff and his supervisor as to the aftermath of the accident, including whether plaintiff was on the ground in pain and required his supervisor’s assistance in getting up (per plaintiff), or whether the supervisor did not know plaintiff fell until plaintiff later told him so, never saw plaintiff on the ground, and never helped plaintiff up (per plaintiff’s supervisor). In addition, Defendant pointed out that the metadata of certain digital photographs (produced by plaintiff) depicting a ladder standing upright at the site suggest that plaintiff misrepresented certain facts as to whether the ladder fell down. Defendant argued that, despite the lack of any proof supporting an alternate theory of the unwitnessed accident, all of the inconsistencies in plaintiff’s testimony, taken together, and bolstered by the metadata issues with plaintiff’s photographs, put plaintiff’s credibility at issue and prevent summary judgment on plaintiff’s Labor Law 240 claims. The Supreme Court, Erie County, denied plaintiff’s motion for summary judgment, finding questions of fact as to who placed the ladder at the site, the circumstances surrounding the fall, and a possibility that the fall may not have occurred.
Motor Vehicle Accident: Furch v. Klinger (N.Y. Sup. Ct., Monroe Co.)
by Nelson E. Schule, Jr., Esq. In Furch, a 53-year-old male plaintiff sought damages for injuries, including multi-level lumbar fusion surgery, allegedly sustained as a result of a three-vehicle chain-reaction collision in the Town of Perinton. There were competing theories as to how the accident occurred. At trial, plaintiff testified that he was rear-ended twice: first, a hard hit by the car immediately in line behind him driven by the defendant, followed by a second, less intense impact from defendant’s vehicle when she was hit from behind by a third party. Plaintiff also offered the supporting testimony of an accident reconstruction expert. Defendant then testified that she was indeed following behind plaintiff, and that she had to stop abruptly when the vehicle in front of plaintiff stopped to make a right hand turn, but that she did not hit plaintiff, having come to a rest approximately five feet behind him, and only then experienced a later impact from behind, which pushed defendant into the rear of plaintiff’s vehicle. Defendant also offered the jury the testimony of an expert witness supporting her version of the accident. Finally, the third party who collided with the defendant testified candidly that she was the cause of the accident. The jury returned a verdict finding the defendant negligent, but found that her negligence was not a substantial factor in causing the accident. The Supreme Court, Monroe County, denied plaintiff’s motion to set aside the verdict on the grounds that, pursuant to Berner v. Little, 137 A.D.3d 1675 (4th Dept. 2016), where a jury is offered two inconsistent explanations for the occurrence of an accident, the decision to select which explanation best fits their view of the evidence (including the credibility of witnesses) properly belongs to the jury. Given that the jury in this case was presented with conflicting evidence as to how this accident happened, the Court saw no reason to disturb the jury’s verdict.
Motor Vehicle Accident: Law v. Romano (N.Y. Sup. Ct., Niagara Co.)
by Aalok J. Karambelkar, Esq. In Law, the plaintiff, a passenger in Frank Galloway’s vehicle, brought claims against Mr. Galloway and Mr. Romano for injuries sustained as a result of a motor vehicle accident at an intersection controlled by a four-way stop sign in the City of Niagara Falls. Despite Mr. Romano’s presence at the intersection being confirmed by two credible non-party witnesses (i.e., a Niagara Falls Police Officer and Fire Department Battalion Chief, who were incidentally stopped at the same intersection when the accident occurred), Mr. Galloway admitted he never saw Mr. Romano’s vehicle prior to the impact. Mr. Galloway and Mr. Romano asserted cross-claims against each other, each claiming the accident occurred a result of the other’s negligence. In a bifurcated trial, the jury returned a verdict in favor of Mr. Galloway, finding Mr. Romano was 100% negligent in causing the accident. Despite Mr. Galloway’s failure to see Mr. Romano’s vehicle before proceeding into the intersection, the jury found that Mr. Galloway’s negligence was not a substantial factor in causing the accident because Mr. Galloway nonetheless had the right-of-way under New York Vehicle and Traffic Law section 1142(a). Witness testimony and the point of impact on Mr. Galloway’s rear door established that Mr. Galloway had arrived at the intersection prior to Mr. Romano and entered the intersection prior to Mr. Romano, and that Mr. Romano was required to yield the right-of-way to Mr. Galloway as a matter of law.
Motor Vehicle Accident: Gift v. Dise (N.Y. Sup. Ct., Monroe Co.)
by Aalok J. Karambelkar, Esq. In Gift, plaintiff claimed she sustained serious injuries as a result of a rear-end motor vehicle accident. The plaintiff’s claims included aggravation of a prior cervical condition, neck pain, cervical sprain, whiplash, and bilateral carpal tunnel syndrome requiring bilateral carpal tunnel release surgeries. Plaintiff claimed “serious injury” under the permanent loss of use, permanent consequential limitation, significant limitation, and 90/180 categories under Section 5102(d) of the New York Insurance Law. Defendant moved for summary judgment on the grounds that plaintiff did not sustain a qualifying “serious injury” as defined by the statute. The Supreme Court, Monroe County, granted defendant’s motion, dismissing the case in its entirety. Specifically, the Court found defendant’s medical expert provided evidence of preexisting bilateral carpal tunnel syndrome and an extensive history of cervical spine injury, concluding the accident only caused a temporary mild exacerbation of ongoing neck pain. The Court also found plaintiff failed to plead (or set forth any claim in her bill of particulars as to) an exacerbation of preexisting carpal tunnel. The Court also found plaintiff’s symptoms of cervical range-of-motion deficits were not causally connected to the accident but instead stemmed from pre-existing conditions, as medical records showed she was on disability for the condition prior to the accident and she was involved in prior accidents involving the cervical spine. The Court also held that plaintiff’s testimony that she “stayed in bed a lot” following the accident was insufficient to raise a question of fact regarding the 90/180 category, as that category requires a medically-determined injury or impairment that prevented her from performing her daily activities, whereas here the plaintiff’s limitations were subjective and belied by medical records generated during the statutory period. On oral argument, the Court also took issue with the fact that plaintiff did not submit an affirmed opinion regarding the categories of “serious injury” claimed, instead relying on certified medical records to raise a question of fact. Pursuant to Irizarry v. Lindor, 110 A.D.3d 846, 847 (2d Dept. 2013) and Parmisani v. Grasso, 218 A.D.2d 870 (3d Dept. 1995), the Court held that even if medical records are properly before the Court, the opinions and conclusions contained within those medical records are not properly before the Court unless affirmed or sworn to under penalty of perjury. The Court also found the medical records insufficient in that the records themselves did not speak to whether plaintiff’s injuries met the threshold for the claimed categories of “serious injury.”
Motor Vehicle Accident: Cicco v. Durolek (N.Y. Sup. Ct., Niagara Co.)
by Patrick S. Kenney, Esq. In Cicco, the plaintiff alleged a motor vehicle accident aggravated a pre-existing low back condition, and that as a result he was unable to work or care for his child, that he was required to move in with his parents, and that his treating physician had recommended surgery. Plaintiff asserted claims for past and future wages, past and future medical expenses, and economic loss in excess of basic economic loss. At trial, plaintiff repeatedly attempted to introduce non-testifying treating physicians’ opinions and medical records through a testifying doctor. Plaintiff argued that the opinions of non-testifying treating physicians could be presented to the jury through the testimony of a testifying treating physician, essentially by reading those opinions into evidence as set forth in the non-testifying physicians’ medical records. Defendant objected to the introduction of the non-testifying physicians’ hearsay opinions and records, citing Wagman v. Bradshaw, 292 A.D.2d 84 (2d Dept. 2002) and pointing out that plaintiff’s counsel was free to call the additional treating physicians as witnesses but chose not to do so. The Court sustained defendant’s objections, refusing to permit the records from being introduced into evidence and preventing the opinions from being read to the jury. Also at trial, defendant challenged plaintiff’s credibility by showing that contrary to his testimony, plaintiff failed to be truthful and honest with his post-accident physicians about his prior history. Defendant also established through the use of social media that contrary to plaintiff’s testimony, he maintained an active social life. After establishing plaintiff’s credibility issues, defendant cross-examined an IME doctor, who then admitted that his previously stated opinions as to causation (favoring the plaintiff) would change if it was shown that plaintiff was not truthful and honest in reporting his prior history and subjective complaints. The jury concluded plaintiff was not credible, and rendered a verdict in favor of defendant, finding plaintiff did not sustain an aggravation of his prior back injury as a result of this motor vehicle accident.
Motor Vehicle Accident: Haag v. Adams (N.Y. Sup. Ct., Onondaga Co.)
by Brent C. Seymour, Esq. In Haag, there were two competing versions of the facts as to a three-car accident that occurred on Route 481-S near Syracuse, New York. According to the the driver of the middle car, plaintiff Ms. Haag, she was initially able to bring her vehicle to a stop behind the first vehicle driven by Ms. Granzow, and was only propelled into Ms. Granzow’s vehicle when rear-ended by the rear-most car driven by defendant Mr. Adams. However, Mr. Adams testified that Ms. Haag was involved in a large rear-end collision with Ms. Granzow, that his vehicle was hit with debris from that first accident, and that he was unable to avoid striking the rear-end of Ms. Haag’s vehicle. Although Mr. Adams admitted he did strike the rear-end of Ms. Haag’s vehicle, he stated this was a minor impact and that he was only going a few miles an hour at the time. Ms. Granzow was dismissed from the case upon dispositive motions. At a bifurcated negligence-only trial, the Supreme Court, Onondaga County, heard testimony from all three drivers, as well as from the responding police officer. Plaintiff’s accident reconstruction expert, Mr. Camerato, then testified that due to the damage patterns of each vehicle, plaintiff’s version of the events was the more likely scenario. Defendant’s consulting accident reconstruction expert, Mr. Puckett, reviewed Mr. Camerato’s reports and ran the various scenarios in his own system, assisting in defendant’s cross-examination of Mr. Camerato. After hearing all of the proof, the jury returned a unanimous verdict that Mr. Adams was not negligent. Since Mr. Adams admitted he struck the rear-end of the middle vehicle operated by Ms. Haag, it appears the jury accepted Mr. Adams’ defense based on the emergency doctrine -- i.e., that there was a large collision between the first and second vehicles and that Mr. Adams could not avoid colliding with the second vehicle due to the sudden nature of the first impact and the debris that hit Mr. Adams’ vehicle.
The New “Ride Sharing” Law in New York State
by David M. Goodman, Esq. As a result of a final budgetary push in Albany last April, ridesharing finally made its way to Upstate New York this year. Buffalo, Rochester, Syracuse, and Binghamton now have the benefit of ridesharing opportunities like Uber and Lyft that were previously only available in the New York metropolitan area. As a result, more claims will be presented involving a ridesharing component. However, although the enabling statutes are in place, many of the particular rules, regulations, and other details for this new area of law are still a work in progress. Understanding the Language Uber and Lyft are referred to as “Transportation Network Companies” (TNC). A TNC is licensed and operates in New York State and uses only a digital network (i.e., app) to connect “TNC passengers” to “TNC drivers” who operate a “TNC vehicle” to provide a “TNC prearranged trip.” A TNC prearranged trip begins when a TNC driver accepts a TNC passenger’s request through use of the digital network controlled by the TNC. The trip begins at the moment of acceptance, and ends when the last requesting passenger departs the TNC vehicle. The nexus of the process is the TNC digital network: a TNC driver receives connections to potential passengers and related services through the app, and a TNC passenger uses the app to arrange for transportation. Insurance Coverage TNC drivers are not employees of the TNC and are using their own motor vehicles. The TNC is not the owner or operator of the vehicle and is not the employer of the TNC driver. This structure does not fit within the existing framework for insurance coverage and motor vehicle liability law in New York State. The TNC law thus presents a new paradigm: no vicarious liability can be attributable to the TNC for the potential negligent acts of the TNC driver, and the TNC driver is an independent contractor whose own auto policy may not cover TNC activities. So, where does coverage come from? The TNC statute creates and establishes financial responsibilities for TNCs and drivers. The TNC is mandated to provide a “group policy” that recognizes the TNC driver and provides financial responsibility while the driver is both logged into the TNC’s app and engaged in a TNC prearranged trip. The “group policy” is fundamental. The group policy includes mandatory bodily injury, property damage, no-fault, uninsured motorist, supplementary uninsured/underinsured motorist, and motor vehicle physical damage coverages. The driver’s own insurance carrier(s) can provide an additional layer of coverage in the form of TNC endorsements and TNC umbrella coverage (should the driver choose to purchase same), and carriers are now offering coverage to TNC drivers to be purchased as an add-on to their existing automobile policies, but the TNC group policy is mandatory. The statute provides for both first-party and third-party benefits under the TNC group policy. Coverage under the group policy is not conditioned upon an unavailability of coverage from the driver’s insurer; rather, it is understood that the driver’s insurer may in fact exclude all TNC coverage. Standard no-fault coverage under the group policy is applicable to any passenger or pedestrian involved in a TNC transaction. The statutory scheme for liability coverage is as follows:
- During “Phase I,” when the TNC driver is logged into the app but has not yet received a passenger request, coverage is $75,000/$150,000.
- During “Phase II,” when the driver accepts a request and is heading toward pick-up, there is a single liability limit of $1,250,000. The same limit is provided for SUM/UIM coverage.
- During “Phase III,” when the driver is actually transporting passengers (e., from the moment of pick-up to the moment that the last passenger departs the vehicle), the same liability limits apply as for Phase II.
Motor Vehicle Accident: Polak v. Glassman (N.Y. Sup. Ct., Erie Co.)
by Melissa A. Foti, Esq. In Polak, plaintiff sought damages for injuries she allegedly sustained in a rear-end motor vehicle accident near a toll barrier on the New York State Thruway. Plaintiff alleged low back and neck injuries including two herniated lumbar discs, lumbar radiculopathy ultimately requiring a triple-level lumbar fusion with instrumentation, bladder control issues due to the lumbar disc injury, several cervical herniations with the need for future cervical surgery, and migraines. Plaintiff claimed “serious injury” under the permanent consequential limitation, significant limitation, and 90/180 categories under Section 5102(d) of the New York Insurance Law. At trial, plaintiff argued to the jury that the defendant was negligent and that the accident caused her injuries, including the need for back surgery and recommended neck surgery. Defendants argued this was a low-speed impact with minimal damage to plaintiff’s vehicle, and that plaintiff’s complaints were due to her longstanding, documented, prior degenerative condition in her lumbar and cervical spine. The trial included seven days of proof from many witnesses. As to negligence witnesses, plaintiff called herself and the reporting State Trooper, while defendants called the driver of the motor vehicle. As to damages witnesses, plaintiff called several physicians (including both of her treating chiropractors and her treating neurosurgeon) to testify as damages witnesses. Plaintiff also subpoenaed a physician who had conducted a No-Fault IME and whose testimony was video-recorded prior to the trial; however, plaintiff chose not to play the video for the jury. Plaintiff also called her nephew, who testified that the injuries resulting from this accident altered plaintiff’s personal life. Plaintiff also called the mechanic who repaired the defendant’s vehicle to testify about the actual cost of the repair versus what was on the invoice, arguing that the property damage was more severe than reflected. Defendants also called damages witnesses including an independent medical doctor/neurosurgeon, a radiologist, and a biomedical expert. Defendants also played the video testimony of the No-Fault physician. After less than an hour of deliberation, the jury found the defendant was negligent for the accident, but that the plaintiff did not sustain a qualifying “serious injury” as defined by Section 5102(d) of the New York Insurance Law, under any category alleged (i.e., finding 5-1 as to no significant limitation and unanimously as to the permanent consequential limitation and 90/180 categories).
Motor Vehicle Accident: Harris v. Campbell (N.Y. App. Div., 4th Dept.)
by Aaron M. Adoff, Esq. In Harris, plaintiff commenced suit seeking damages for injuries sustained when her vehicle was rear-ended by a vehicle owned and operated by defendant. At trial, the Supreme Court, Erie County, limited the testimony of one of plaintiff’s treating physicians. While the physician testified he also had a Ph.D. in biomechanical engineering and that he often relies on his engineering background in his medical practice, no expert disclosure had been provided. A jury then returned a verdict in favor of defendant, and the Supreme Court, Erie County, entered a judgment dismissing the complaint. Plaintiff appealed. The Fourth Department affirmed, holding the Supreme Court had properly sustained defendant’s objections to a line of questioning pertaining to biomechanics (i.e., regarding the amount of force needed to cause a lumbar injury), inasmuch as defendant had not received notice that the treating physician relied on his engineering background to support his opinions and conclusions about plaintiff’s injuries.
Insurance Coverage: Celani v. Allstate Indem. Co. (N.Y. App. Div., 4th Dept.)
by Jessica L. Foscolo and Adam R. Durst In Celani, the plaintiff sought coverage under her father’s homeowners policy for her bodily injuries sustained in connection with an accidental shooting involving a gun owned by the named insured father. Allstate disclaimed coverage on the basis that bodily injury to an “insured person” was not covered and the daughter qualified as an “insured person” because she was a relative of her father and a “resident” of the father’s household. Plaintiff filed suit and moved to compel the disclosure of Allstate’s entire claim file, including a pre-disclaimer coverage opinion authored by outside counsel, pre-disclaimer claim notes related to that coverage opinion, Allstate’s claim manual, and information concerning Allstate’s reserves for the accident. The Supreme Court, Erie County, granted the motion to compel and denied Allstate’s cross-motion for a protective order. The Fourth Department reversed and modified the Supreme Court’s order, holding that the coverage evaluation and the related claim notes were “absolutely privileged” and that the Supreme Court abused its discretion in ordering their production. Specifically, the Fourth Department held the coverage evaluation was privileged because it was a document of primarily legal character prepared by an attorney made to furnish legal services, and confirmed that the privilege existed regardless of the fact that there was no litigation pending at the time counsel’s opinion was rendered. The Fourth Department further held that Allstate’s reserve information was not discoverable because it was not “material and necessary” to the coverage action. Finally, the Fourth Department held the Supreme Court abused its discretion in ordering the production of Allstate’s claim manual, as an Allstate employee had testified that the manual did not define the term “resident” and therefore the Court should have reviewed the claim manual in camera to determine whether it was relevant to the issues in the coverage action.
December 14, 2017
New York State Bar Association Recognizes Defense Association of New York’s Disaster Relief Fundraising Efforts
[caption id="attachment_2213" align="aligncenter" width="500"] The Defense Association of New York (“DANY”) was recognized by the New York State Bar Association for its past presidents’ dinner, which DANY used as a fundraiser for The Foundation’s Disaster Relief Fund. From left, Heather Wiltshire Clement of Sovereign Claims LLC, DANY president; Tom Liptak of Kenney Shelton Liptak Nowak LLP, board member and officer/assistant treasurer and president-elect; Tom Maroney of Maroney & O’Connor LLP, board member and DANY past president; Vincent P. Pozzuto of Cozen O’Connor, chairman of the board and DANY immediate past president; and Martin Minkowitz of Stroock & Stroock & Lavan LLP, the New York Bar Foundation Treasurer.[/caption]
December 11, 2017
KSLN receives Volunteer Lawyers Project Law Firm Commitment Award
[caption id="attachment_2209" align="alignleft" width="592"] Pictured from left to right: Melinda G. Disare, President of the Bar Association of Erie County, Henry A. Zomerfeld, Ashlyn M. Capote, Jessica N. Reich,
Laura J. Emerson, Shari Jo Reich, and the Hon. Gerald J. Whalen, J.S.C.,
Presiding Justice of the Appellate Division, Fourth Department
(Not pictured: Katie L. Dibble, Kate L. Hartman, Stephanie A. Mack).[/caption] On November 17, 2017, Kenney Shelton Liptak Nowak was honored at the annual “Champions for Justice Bash” by the Volunteer Lawyers Project, where the Firm received the Law Firm Commitment Award. The Award recognizes the Firm’s recently-enacted pro bono initiative and all of the time and energy our attorneys have offered for pro bono clients over the years. The Firm’s attorneys have supported the Volunteer Lawyers Project for over 30 years, with Patrick S. Kenney handling a tort defense case as far back as 1989; Shari Jo Reich, who readily accepts pro bono clients with challenging issues; and Jessica N. Reich, who consistently represents our divorce clients. Thanks to the impressive efforts of associates Henry A. Zomerfeld and Ashlyn M. Capote, the Firm recently implemented a firm-wide pro bono initiative that has resulted in pro bono representation of divorce and family law matters, tort defense cases, not-for-profit corporate clients, and wills and estates matters. Of course, the award and the success of the pro bono initiative would not have been possible without the willing participation of our attorneys. We recognize the following attorneys for their efforts: Ashlyn M. Capote Katie L. Dibble Laura J. Emerson Kate L. Hartman Stephanie A. Mack Jessica N. Reich Shari Jo Reich Henry A. Zomerfeld The Volunteer Lawyers Project acknowledged, and expressed gratitude for, the efforts of our attorneys, who have dedicated over 173 hours of time representing 80 clients last year alone.
June 21, 2017
Products Liability: Waterman v. CNH America, LLC, et. al. (N.Y. App. Div., 4th Dept.)
by Maurice L. Sykes, Esq. and Henry A. Zomerfeld, Esq. In Waterman, plaintiff was a municipal employee working to reinforce a guardrail near a road. Plaintiff’s colleagues were using an excavator bucket to pound 12’ rail irons into the ground. Plaintiff was standing under the 725-pound excavator bucket when he was allegedly struck by the bucket, sustaining injuries. Plaintiff brought suit alleging, in part, that defendants owed plaintiff a duty to warn of the danger that allegedly caused the accident. Defendants moved for partial summary judgment on the grounds that they owed plaintiff no duty of care to warn of the open and obvious danger of standing underneath the 725-pound excavator bucket. Defendants also argued that even if the condition was not open and obvious, the warnings in the operator’s manual were sufficient to make plaintiff aware of the danger. On July 7, 2015, in a 41-page decision, the Supreme Court, Erie County, granted defendants’ motions for summary judgment, reasoning that they had no duty to warn of an open and obvious common-sense risk, and that plaintiff failed to demonstrate any genuine issue of material fact to defeat the motions. The Court found there was nothing lacking or insufficient about the warnings in the operator’s manual. The Court also noted (as argued by defendants) that two of plaintiff’s colleagues had walked away from the area where the repair was taking place out of concern for their own safety, which the Court took to be an acknowledgment of the danger of standing underneath the excavator bucket. Plaintiff appealed. On May 5, 2017, the Fourth Department unanimously affirmed the Supreme Court decision granting partial summary judgment in favor of defendants.
Labor Law 240: Weitzel v. State of New York (N.Y. Sup. Ct., Erie Co.)
by Richard C. Brister, Esq. In Weitzel, plaintiff was allegedly injured in the course of his employment at a highway construction project to renovate a bridge on the Thruway in Hamburg, New York. The construction area was contained within a heavy-duty tarp system, or containment area. On the date of the accident, plaintiff allegedly walked into the containment area wearing a safety harness, but once inside the containment area and hidden from view, removed the safety harness before climbing to a height (i.e., onto a 2’ aluminum plank placed between the bridge pier and the wing of a v-deck truck set up under the bridge), and then began work blasting the bridge framework. It was allegedly during this blasting work performed without a safety harness that plaintiff fell approximately 15 feet and sustained injuries. Plaintiff’s motion alleged the plank from which he fell was not set up properly because it was placed over a tarp and was not properly tied off. Plaintiff also alleged defendants failed to provide safety railings on both sides of the plank as required by the Labor Law. In opposition, defendants argued that plaintiff himself placed the plank on the tarp and tied it off. Defendants also argued that if plaintiff had worn his safety harness and used available bridge clamps, there were numerous tie-off points available. Defendants also provided expert and testimonial evidence that railings along the sides of the plank would have rendered the work practically impossible and more dangerous. Defendants also argued that plaintiff’s conduct in removing the safety harness was the sole proximate cause of the accident, and that plaintiff was a recalcitrant worker because he removed the safety harness without explanation and despite being told numerous times to wear it. Defendants argued that the court must take defendants’ evidence as true and indulge all reasonable inferences in their favor as non-movants. On January 12, 2017, the Court denied plaintiff’s motion for summary judgment under Labor Law section 240. The Court found issues of fact as to (1) whether plaintiff’s conduct in removing the safety harness was the sole proximate cause of the accident, and (2) whether plaintiff was a recalcitrant worker.
Insurance Coverage: Big Change for Additional Insured Provisions “Caused By” the Court of Appeals
by Adam R. Durst, Esq. and Richard A. Galbo, Esq. In Burlington, the New York City Transit Authority (NYCTA) and MTA New York City (MTA) sought AI coverage in connection with an underlying bodily injury action under a liability policy issued by The Burlington Insurance Company (Burlington) to Breaking Solutions, Inc. (BSI). The Burlington AI endorsement provided coverage only for liability for bodily injury “caused, in whole or in part” by the “acts or omissions” of BSI. NYCTA had contracted with BSI to perform tunnel excavation work on a New York City subway. The NYCTA-BSI contract obligated BSI to procure liability insurance naming the NYCTA, MTA, and New York City (the City) as AIs. During the project, a BSI machine touched a live electrical cable buried in concrete, resulting in an explosion. An NYCTA employee was injured when he fell from an elevated platform as he tried to avoid the explosion. The NYCTA employee and his wife commenced suit against BSI and the City, alleging negligence and violations of Labor Law. The City impleaded the NYCTA and MTA, asserting indemnification and contribution claims. The NYCTA tendered its defense to Burlington as an AI under the BSI policy. Burlington initially accepted the defense subject to a reservation of rights based on the NYCTA’s qualification as an AI, but later disclaimed coverage based on the NYCTA’s lack of AI status after it was determined that the NYCTA failed to identify and mark the electric cable and turn off the power and was therefore solely at fault. Since BSI could not have known about the location of the cable or the fact that it was electrified, the claims against BSI were eventually dismissed with prejudice. Burlington commenced a coverage action against the NYCTA and MTA seeking a declaration that it did not owe them coverage as AIs since the underlying accident was not “caused, in whole or in part by” BSI’s “acts or omissions.” The Supreme Court, New York County, granted Burlington’s motion for summary judgment and concluded that the NYCTA and MTA were not AIs because the Burlington policy limited AI coverage to instances in which BSI was negligent. The NYCTA and MTA appealed. The Appellate Division, First Department, reversed the Supreme Court’s decision. In doing so, the First Department read the “caused by” language to mean the same as the “arising out of” language found in similar AI endorsements. The First Department therefore applied a “but for” causation test and held that because “the act of triggering the explosion . . . was a cause of [the employee’s] injury,” the NYCTA and MTA were entitled to a defense and indemnification from Burlington as a matter of law, consistent with then-controlling precedent. The Court of Appeals granted Burlington leave to appeal. The Court of Appeals reversed the First Department’s decision. The Court rejected the use of the “but for” causation test and found that “where an insurance policy is restricted to liability for any bodily injury ‘caused, in whole or in part’ by the ‘acts or omissions’ of the named insured, the coverage applies to injury proximately caused by the named insured.” Interestingly, the Court relied on numerous federal and out-of-state decisions in reaching its conclusion, perhaps inviting future references to decisions from other jurisdictions where the weight of authority has fallen to a particular interpretation of policy language. The Court explicitly rejected the NYCTA’s and MTA’s invitation to adopt the First Department’s conclusion that the “caused by” language does not materially differ from the phrase “arising out of,” because “arising out of” was not used in the Burlington policy and is not the functional equivalent of “proximately caused by” but instead has been interpreted to mean that there is “but for” causation. The Court explained that “not all ‘but for’ causes result in liability,” whereas “‘proximate cause’ refers to a ‘legal cause’ to which the Court has assigned liability,” and that for proximate cause, “the chain of causation must have an endpoint in order ‘to place manageable limits upon the liability that flows from negligent conduct.’” The Court reasoned that since the Burlington AI provision extends AI coverage “only with respect to liability,” the “‘caused, in whole or in part, by’ language necessarily limits coverage for damages resulting from [the named insured’s] negligence or some other actionable ‘act or omission.’” Since BSI was adjudicated not to have been at fault in the underlying action, the Court held the NYCTA and MTA did not qualify as AIs under the Burlington policy. Only Justice Fahey, dissenting, opted to apply the “but for” causation test instead of proximate cause, reasoning, in short, that the provision at issue was ambiguous and must be read against the drafter.
The Court of Appeals’ decision in Burlington is sure to affect many decisions across New York State with respect to a putative AI’s entitlement to indemnification, which it appears will first require an allocation of liability in the underlying action.However, since the Court did not engage in an analysis as to how its decision affects an insurer’s duty to defend, it is unclear how this decision will be applied in situations where, for example, the claimant is the named insured’s employee, since often the complaint will not identify the employer or contain specific allegations that the employer was the proximate cause of the claimant’s injuries. A question also exists as to what exactly the Court meant by “some other actionable ‘act or omission’” or “actionable deed.” It is also unclear how courts in New York will use Burlington to interpret endorsements commonly found in insurers’ policies that may not say “in whole or in part” or may only pertain to liability caused by the named insured’s “ongoing operations” instead of its “acts or omissions.” What can be said, however, is the Court’s decision in Burlington represents a significant jurisprudential development in the context of AI coverage in New York that should be a tool in any insurance coverage litigator’s kit.
Insurance Coverage: Northfield Ins. Co. v. Midtown Restorations LLC, et al. (N.Y. App. Div., 1st Dept.)
by Judith Treger Shelton, Esq. and Adam R. Durst, Esq. In Midtown, the plaintiff insurer sought a declaration as to its obligations under a general liability policy in connection with an underlying claim for property damage allegedly caused by the insured’s waterproofing operations. The policy contained a classification limitation endorsement stating coverage “applies to ‘bodily injury’ and ‘property damage’ caused by only those operations which are classified and shown on the [declarations], its endorsements, and supplements.” The declarations listed the following operations: “Contractors - subcontracted work - in connection with building construction, reconstruction, repair or erection - one or two family dwellings,” “Dry Wall or Wallboard Installation,” “Painting - exterior,” and “Painting - interior.” The insured and underlying claimant property owner were both named as defendants in the coverage action. The insured defaulted. The insurer moved for summary judgment, arguing that the insured’s waterproofing operations did not fall within any of the listed classifications and therefore fell outside the scope of coverage of the policy. The underlying claimant argued in opposition that the insured’s operations fell within the “Contractors - subcontracted work” classification because the claimant had “contracted with” the insured to perform the work. In its reply, the insurer pointed out that the First Department had rejected this exact argument in a decision published seven days before the claimant filed its opposition. At oral argument on May 16, 2016, the Supreme Court, New York County – sua sponte and without addressing the claimant’s argument – found a question of fact as to whether “waterproofing” fell within the “Painting - exterior” or “Painting - interior” classifications listed in the policy declarations because of the method by which the waterproofing product was applied (i.e., rolled on). On April 4, 2017, the First Department rejected the Supreme Court’s reasoning, finding the policy’s classification limitation endorsement limits the scope of coverage to four classifications, none of which encompass waterproofing, thereby precluding coverage under the policy.
Labor Law 240: Smith v. Burns (N.Y. Sup. Ct., Broome Co.)
by Richard C. Brister, Esq. In Smith, plaintiff was allegedly injured in the course of his employment at a project to build a two-level deck at a new restaurant being constructed in Binghamton, New York. On the accident date, plaintiff was allegedly using an 8’ stepladder to install a support post under the deck when the ladder collapsed, causing plaintiff to fall and sustain injuries. Plaintiff’s motion alleged he was provided the 8’ stepladder and that his accident was caused by the defective condition of the ladder and the way it was set up under the deck. In opposition, defendants submitted evidence that plaintiff was actually provided a 12’ stepladder that had on three prior occasions been successfully secured under the deck for similar work, and that plaintiff actually accessed that 12’ stepladder just prior to the accident, but that plaintiff ultimately disregarded the 12’ ladder and retrieved the 8’ ladder to use instead. Defendants argued that plaintiff’s motion ignored the the provision and condition of the 12’ ladder, and that the court must take defendants’ evidence as true and indulge all reasonable inferences in their favor as non-movants. On April 10, 2017, the Court denied plaintiff’s motion for summary judgment under Labor Law section 240. The Court found issues of fact as to (1) which ladder the plaintiff was given to use, and (2) whether plaintiff’s conduct (i.e., in retrieving the unsafe 8’ ladder for his use where a safe 12’ ladder had been immediately available to him) was the sole proximate cause of the accident. The Court also denied plaintiff’s motion for summary judgment on his claims for common law negligence and for violation of Labor Law sections 241(6) and 200, and denied plaintiff’s wife’s derivative claim.
Contractual Indemnification: Winters v. Uniland Devpt. Corp., et al. (N.Y. Sup. Ct., Erie Co.)
by Melissa A. Foti, Esq. In Winters, plaintiff was allegedly electrocuted in the course of performing electrical work at a project to renovate an office in Amherst, New York. Plaintiff commenced suit against the owner, Uniland, asserting claims for negligence and violations of Labor Law sections 200, 240(1), and 241(6). The owner then commenced a third-party action against plaintiff’s employer, J&N Services, asserting claims for common law indemnification and contribution, contractual indemnification, and breach of contract/failure to procure insurance. Prior to motion practice, plaintiff withdrew his Labor Law section 240 claim, leaving only claims for common law negligence and for violations of Labor Law sections 200 and 241(6). Uniland moved for summary judgment against plaintiff seeking dismissal of all causes of action. Uniland also moved for summary judgment on its claims against J&N for defense and indemnification. These claims relied upon an indemnification provision contained in a “purchase order” between Uniland and J&N that was issued and signed after the accident and after the work was complete. In opposition to the motion, J&N argued it was immunized from third-party liability for common-law indemnification or contribution because plaintiff did not sustain a grave injury. J&N further argued that Uniland’s contractual indemnification claim must fail because there was no written contract signed prior to the loss; i.e., because contractual indemnification is only permitted where there is a written contract entered into prior to the accident expressly agreeing to indemnify for the type of loss sustained, and because an indemnification agreement cannot apply retroactively to injuries sustained by an employee in an accident that occurred prior to execution of the agreement unless that agreement specifically states it is to be applied retroactively (which the purchase order in this case did not). Notwithstanding the fact that the purchase order post-dated the accident and work at issue, Uniland argued that J&N was its longtime partner and that the typical pattern and practice of conduct between Uniland and J&N (which predated the accident) was for J&N to provide Uniland with information concerning the job cost and a list of the work that was already completed, and for Uniland to then prepare a purchase order and provide it to J&N so that J&N could be paid. Uniland argued that this pattern and practice established the parties intended to be bound and evidenced a valid and enforceable contractual indemnification claim. On March 21, 2017, the Supreme Court, Erie County, dismissed all of plaintiff’s causes of action against Uniland, ruling that plaintiff was injured performing the very work he was hired to perform, that the facts did not support a claim that he was injured because of a defective condition on the premises, and that the claimed violations of Labor Law section 241(6) regulations were either not specific enough or that the cited regulations were inapplicable to the facts of the case. The Court also denied Uniland’s motion against J&N, finding the evidence was undisputed that there was no signed contract between Uniland until several weeks after the accident and that Uniland failed to provide “persuasive authority” for the proposition that the “custom and practice” of the parties can create an enforceable contract with explicit terms for defense and indemnification. The Court also ruled that the dismissal of the primary action rendered the third-party action moot.
Premises Liability: Slattery v. Tops Markets, LLC (N.Y. App. Div., 4th Dept.)
by Melissa A. Foti, Esq. In Slattery, the decedent plaintiff allegedly tripped and fell on a rug that had been laid flat over a “recessed mat system” at the entrance to a Tops Markets grocery store. Plaintiff’s estate sued Tops, alleging the rug and its placement constituted a dangerous and defective condition. Tops moved for summary judgment, arguing plaintiff tripped because plaintiff's foot had “picked up the edge of the rug,” not because the rug was dangerous or defective. Tops submitted evidence including photographs of the rug, video of the accident, and plaintiff’s deposition testimony stating he had not seen anything wrong with the rug before the accident. In opposition, plaintiff submitted an expert affidavit opining that the rug was “not designed to be used over another carpet” and that its placement over the recessed mat system had caused a tripping hazard. The Supreme Court, Erie County, denied the motion, finding an issue of fact. Tops appealed. On February 10, 2017, the Fourth Department unanimously reversed. While whether a condition is dangerous or defective is generally a question of fact for a jury, the Court held that summary judgment may nevertheless be appropriate where the plaintiff fails to submit any evidence that the condition is actually dangerous or defective. Based on the evidence submitted by Tops, the Court found the rug and its placement were not inherently dangerous. The video suggested the rug had not slipped, and that plaintiff simply tripped over the front edge of the rug. The Court agreed with Tops that plaintiff’s expert’s affidavit was speculative, conclusory, and insufficient to raise an issue of fact as to the condition of the area at the time of the accident, because it was based on an examination of the area approximately 2.5 years after the accident occurred. The Court dismissed the complaint.
February 7, 2017
KSLN Partners with Volunteer Lawyers Project to Provide Pro Bono Legal Services
KSLN associates Ashlyn M. Capote and Henry A. Zomerfeld have spearheaded a new firm-wide pro bono initiative in partnership with the Erie County Bar Association’s Volunteer Lawyers Project. Under the program, clients unable to afford attorneys will receive counseling and representation in matters including, among others, eviction proceedings in Buffalo Housing Court, tort defense, wills and estates, and family law. Prior to the implementation of this new initiative, KSLN’s Family Law group regularly served as pro bono attorneys for those in need of legal representation in similar cases. KSLN’s new initiative will increase the number of firm attorneys participating in pro bono representation, as well as expand the types of matters for which the firm’s pro bono services are available.
July 29, 2015
KLSN Partner Jennie Muscarella explains the evolution and necessity of Construction Risk Management
KLSN Partner Jennie Muscarella was recently interviewed by Business First for her perspective on the ever-changing, evolving world and absolute necessity of limiting risk exposure through Construction Risk Management practice. The interview is below: http://www.bizjournals.com/buffalo/print-edition/2015/07/10/how-i-minimize-risk-with-major-projects.html
March 30, 2015
Volunteer Lawyers Project Recognizes Two KSLN Attorneys
Partner Shari Jo Reich recently collaborated with her peers to present a day-long "Divorce 101" CLE for newly admitted attorneys and those looking to expand their matrimonial practice. Associate Jessica Reich received the prestigious Empire State Counsel designation for donating more than 50 hours of pro bono legal services in 2014.
June 14, 2013
New and Noteworthy
for Insurance Coverage
May 2, 2013
KSLN’s NYC Office Named Exclusive Counsel in Metro Region for Global Hamburger Chain
We’re pleased to announce that our NYC office continues to grow and was recently designated exclusive counsel in the NYC metro region for a global hamburger chain. If you like our work upstate, consider using us in NYC. Contact Partner Michael Stonberg (212) 231-2220.
May 1, 2013
Managing Partner Tim Delahunt to Present at New York State Bar Association Advanced Insurance Practice 2013 MCLE Friday, May 10
Managing Partner Tim Delahunt will speak on Allocation Issues for Defense and Indemnity. For further information and to register for this MCLE, please go to: http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=6131
Managing Partner Shari Jo Reich Receives EmbraceWNY 2013 Community Service Award
Managing Partner Shari Jo Reich is the recipient of the EmbraceWNY’s 2013 Community Service Award. She was honored along with WNED, Unity Fellowship of Christ Church, and Jamestown Councilman-at-Large Greg Rabb, at a brunch on Sunday, April 28th, attended by over 300 guests. EmbraceWNY is a local, non-profit organization comprised of gay and straight members of the Western New York Community who are dedicated to equality and fairness within Western New York and seek to raise awareness, understanding and acceptance of the LGBT community amongst all citizens.
March 14, 2013
KSLN to be Honored with a Distinguished 2013 Preservation Award
Preservation Buffalo Niagara has selected KSLN as the recipient of a Distinguished 2013 Preservation Award for the firm’s contributions toward preservation in the Buffalo Niagara region through our purchase and renovation of the historic Calumet Building, home to the firm’s Buffalo office. The firm will be recognized at the 5th Annual Preservation Awards Ceremony and Luncheon at Kleinhans Music Hall, Friday, May 31, 2013.
KSLN Wins Silver
The results are in! At the March 7 luncheon recognizing the finalists in Business First’s 2013 Best Places to Work survey, KSLN took the silver award in the medium-size company category. MORE+
February 12, 2013
Melissa Burke, Alan DePeters, and Nancy A. Long Named Partners of Kenney Shelton Liptak Nowak
Melissa A. Foti to Be Initiated into Phi Alpha Delta Law Fraternity
February 27, 2012
Our New York City Office has Moved
We are pleased to announce that our New York City office has moved. MORE+
February 8, 2012
KSLN Expands Practice in Pennslyvania
If you are looking for a law firm to handle your Business and Corporate, Commercial Litigation, and Insurance Defense matters in Pennsylvania, look no further. Our experienced Pennsylvania-admitted attorneys -- Melissa A. Foti, Jeffrey A. Carlino, and Amanda L. Machacek -- are ready to assist you in achieving the best possible outcomes on your legal matters. We balance superior legal counsel with accessibility and cost efficiency, it's what makes us easy to work with and tough to beat. If you are interested in learning more about our Pennsylvania practice, please contact us at 800-447-9544.
Ryon D. Fleming Named to New York State Unified Court System Mediator Ethics Advisory Committee
Buffalo, NY: Ryon D. Fleming, an Associate at Kenney Shelton Liptak Nowak LLP, has been named as one of thirteen members who comprise the Mediator Ethics Advisory Committee for the New York State Unified Court System.
The Mediator Ethics Advisory Committee (MEAC) was established in 2006 with three major objectives: 1) to respond to inquiries from mediators in community dispute resolution center programs; 2) to promote professional development and consistent of practice among dispute resolution practitioners; and 3) to recommend changes to the Mediator Standards of Conduct for the New York State Community Dispute Resolution Center Mediators that govern mediators who provided dispute resolution services under the auspices of a Community Dispute Resolution Center.MORE+
November 17, 2011
Jeffrey A. Carlino Joins Kenney Shelton Liptak Nowak LLP as Commercial Litigation Partner
Jeffrey A. Carlino has joined KSLN as a Partner in the firm’s Commercial Litigation practice. Jeff brings a wealth of experience in the areas of Creditors’ Rights, Fair Debt Collection Practices Act (FDCPA) compliance and defense litigation, Lender Liability defense litigation, and General Commercial litigation. He has developed a successful legal practice defending both large and small corporations in complex commercial disputes. MORE+
The Litigation Council of America Names Judith Treger Shelton a 2011 Fellow
Buffalo, NY -- Judith Treger Shelton has been inducted into the prestigious Litigation Council of America (LCA), an invitation-only trial lawyer society MORE+
July 25, 2011
Partner Jim Nowak Featured in BNA’s Toxics Law Reporter
Partner Jim Nowak has been quoted in one of the nation's leading sources for timely news on regulatory, legistlative and legal issues, "The Bureau of National Affairs, Inc." Their weekly publication the "Toxics Law Reporter" consulted Jim about the Supreme Court of Delaware's recent decision regarding employer liability for "take-home" exposure in alleged asbestos cases. BNA Article
July 7, 2011
Kenney Shelton Liptak Nowak LLP Adds to its Buffalo Office
Kenney Shelton Liptak Nowak (KSLN) is pleased to announce the addition of four attorneys to the firm. MORE+
March 30, 2011
Tim Delahunt Coauthors Book
The American Bar Association’s new book, “Construction Insurance: A Guide For Attorneys and Other Professionals,” features Tim Delahunt as coeditor and chapter coauthor. MORE+
January 6, 2011
Our firm is proud to be moving into the historic, art nouveau Calumet Building. Located in the heart of Buffalo, our new office is minutes from the Erie County Supreme Court, Buffalo City Court, and United States District Court. MORE+