The New York State Bar Association has invited WCM partner Dennis M. Wade to lecture at Law School for Claims Professionals. Dennis will be lecturing and conducting a workshop on handling the premises liability claim on October 23, 2009. With assistance from associate Alison Weintraub, Dennis wrote a monograph entitled The Anatomy of a Premises Case which will be published in the course materials. Attached is a brochure with information about the program.

If you would like more information about the program or the materials please feel free to contact Dennis or me.

Sincerely,

Shana Hughes
Communications Director

NYSBA Announcement

In Hauptner v Laurel Dev., LLC, the plaintiff was sitting at his deck when a ladder from an adjoining construction site fell and struck him. The plaintiff moved to dismiss the defendants’ affirmative defenses based on culpable conduct arguing that the defendants failed to show how the plaintiff caused or in any way contributed to the ladder falling into his yard. The lower court denied the plaintiff’s motion, but the Appellate Division reversed, stating that the affirmative defense was totally devoid of merit because there was no evidence whatsoever that the plaintiff expected that a ladder from the neighboring construction site would fall into his backyard.

Thanks to Bill Kirrane for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_06458.htm

The long standing rule that a party cannot submit a self-serving affidavit nor allege a new theory of liability for the first time in opposition to a summary judgment motion was recently upheld in Nicholas v. New York City Housing Authority. In Nicholas, the plaintiff testified that he slipped on a wet condition located on a staircase owned by the NYCHA. NYCHA moved for summary judgment on the basis that it did not have actual or constructive notice of the condition. In opposition to the motion, the plaintiff submitted an affidavit alleging for the first time that he fell on a defective/broken stair. The lower court denied NYCHA’s motion, but the First Department reversed and dismissed the complaint based on the fact that the plaintiff tailored his affidavit to avoid the consequences of his deposition testimony.

Thanks to Lora Gleicher for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06463.htm

A lack of notice is a historical defense to claims against a municipality involving potholes and the like. Thanks to a new iphone app that defense may fall by the wayside. A new iphone app being revealed will allow citizens to instantaneously report dangerous conditions. The notice defense may thereby fade into history.

http://www.macworld.com/article/142839/2009/09/citysourced.html

On or about September 3, 11 portraits from Andy Warhol’s “The Athletes” series were stolen from a Los Angeles home. The portraits — which include American athletes from Mohammed Ali to OJ Simpson — are reported to be a “multi-million dollar collection.” An investigation is proceeding.

http://www.latimes.com/news/local/la-me-warhol12-2009sep12,0,1444024.story

In unrelated news, a former employee of Long Island (NY’s) Hillwood Museum has just been charged with stealing (and attempting to sell) 9 Egyptian antiquities. He apparently took the works from the museum and gave them to Christie’s to auction. The theft was discovered when one of the pieces failed to sell at auction and Christie’s offered it in a private sale to a collector who was familiar with the Hillwood collection. More works of art are apparently missing from Hillwood so this investigation and the potential scope of the loss may increase.

http://www.newsday.com/long-island/nassau/ex-museum-director-to-surrender-in-theft-of-artifacts-1.1451120

In Paljevic v. 998 Fifth Ave. Corp., LICO was a contractor working on the renovation of a 17-room apartment. LICO’s contract specifically excluded painting. The plaintiff, a painter, was injured in a fall from an A-frame ladder while he was painting the kitchen. The Supreme Court granted LICO’s motion for summary judgment concluding that LICO bore no liability as a contractor under Labor Law § 240(1) because it did not supervise or control the plaintiff’s work. The Appellate Division reversed noting that LICO’s contract required it to provide reasonable protection to prevent injury to “employees on the Work and other persons who may be affected thereby.” Accordingly, although LICO did not supervise the plaintiff’s work, they assumed responsibility for the plaintiff’s workplace safety.

Thanks to Bill Kirrane for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_06386.htm

In many states, a pre-answer default is of little moment and is easily vacated. Not so in Pennsylvania! As a trial court (in Firedex of Butler, Inc. v. Dicarjust has just confirmed, in PA, to vacate a default you need both an excuse for the default and a meritorious defense. In the absence of such proof, even if there is insurance, the default will not be vacated. Litigants and insurers should thus be equally vigilant.

http://www.palawweekly.com/getarticle.aspx?id=30117

In Pasljevic v. 998 Fifth Avenue Corp., plaintiff was a painter who fell from a ladder at a renovation site while in the course of his employment. Plaintiff sued LICO Construction Company, a contractor the property owner had retained via written contract to provide full-time site supervision. Plaintiff’s claims were based upon purported violations of Labor Law §200, §240(1), and §241(6). The work encompassed in LICO’s contract excluded painting. However, the contract stated that LICO was required to prevent injury to “employees on the Work and other persons who may be affected thereby.” During the course of his deposition, LICO’s foreman testified that LICO coordinated the various trades at the project. The plaintiff testified at his deposition that LICO had actually directed him to work in the area in which he fell.

LICO filed a motion for summary judgment in which it asserted that the exclusion of painting in its contract precluded it from having authority or supervision over plaintiff’s work. The trial court granted the motion. The Appellate Division, First Department, reversed the trial court’s decision and denied LICO’s motion. The First Department held that there were triable issues of fact as to LICO’s statutory liability due to the absence of a general contractor, LICO’s contractual assumption of responsibility for site safety, and its coordination of the trades at the project.

Thanks to Brad Thelander for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06386.htm

According to the National Insurance Crime Bureau, fraudulent claim referrals, across all lines of business, were up for the first half of 2009 as opposed to the same period in 2008. The bad economy is suspected as the root cause.

https://www.nicb.org/cps/rde/xbcr/nicb/ForeCAST_First_Half_2008_2009_Referral_Reasons_Comparison_Final.pdf

http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202433687610&src=EMC-Email&et=editorial&bu=New%20Jersey%20Law%20Journal&pt=New%20Jersey%20Law%20Journal%20Daily%20News%20Alert&cn=NJLJ_Daily_News_Alert_20090910&kw=POLICYHOLDERS%20FILING%20MORE%20SUSPICIOUS%20CLAIMS%20%E2%80%94%20OR%20ARE%20THEY%3F&slreturn=1&hbxlogin=1

Philadelphia’s trial courts are often (rightly) given much grief for their failure to require plaintiffs to present sufficient evidence to create a question of fact in opposition to a defendant’s motion for summary judgment. A recent decision in Ortiz v. Cruz, however, belays the popular conception and gives hope to fans of the rule of law everywhere.

In Ortiz, a truck owned by defendant A Plus Family Movers and driven by defendant Efrain Cruz crashed into plaintiff’s car causing injuries and property damages. A lawsuit resulted. At the close of discovery, A Plus moved for summary judgment. It argued that the only evidence in the case suggested that Cruz had stolen the truck and, as such, was not A Plus’s employee when the accident occurred. Plaintiff failed to submit contrary proof and thus the court ruled for A Plus.

http://www.palawweekly.com/getarticle.aspx?id=30021