Social Media Networks: Access Denied

In the current age of electronic discovery, social media networks provide an insight into a plaintiff’s state of mind and daily activities, which was once otherwise impossible to obtain. In a blow to the defense, the First Department recently held that a plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage. In Tapp v. New York State Urban Dev. Corp., the defendant sought an authorization for plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived. In affirming the lower court’s denial of defendant’s request, the First Department held that to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account. Specifically, they need to identify information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” Given an individual’s ability to close their Facebook page to the public, and place various restrictions on who may access the content contained on their profile page, the First Department’s ruling makes it increasingly difficult to obtain access to social media networks, which may be a useful tool in challenging a plaintiff’s credibility at the time of trial.

Bad Advice From The Coach May Negate The Primary Assumption of Risk Defense

As a general rule in New York, the primary assumption of risk doctrine bars recovery for a plaintiff who is a voluntary participant in a sporting or recreational activity.  However, in Weinberger v. Solomon Schechter School of Westchester, the Appellate Division Second Department recently reversed a defense trial verdict on appeal involving a high school softball player injured during batting practice.

In Weinberger, the plaintiff, a 14-year old freshman junior varsity softball player, was struck in the face by a ball off the bat of a batter during batting practice with her team.  The testimony at trial established that her coach had instructed the team to perform a “rapid fire drill” that involved the pitcher standing closer to home plate than the pitching mound in order to throw a quick succession of pitches.  Before the accident, the plaintiff had been pitching behind the safety of a protective “L-screen.”  Regulations promulgated by the National Softball Association require these protective screens to be freestanding.  However, the school’s L-screen was simply held in place between two benches and kept falling down during this rapid fire drill.  Towards the end of practice, the protective screen fell again.  Trial testimony indicated that the coach had advised the plaintiff to leave the protective screen on the ground and to continue pitching from the location that was approximately six feet closer to home plate than the mound.

Over the plaintiff’s objection, the trial judge charged the jury with amended PJI 2:55, that instructs the jury about the theory of primary assumption of risk.  The jury then returned a defense verdict for the school as the plaintiff had voluntarily assumed the risk of injury involved in softball batting practice.  The Appellate Division reversed, stating that as a matter of law, the primary assumption of risk was not applicable because the doctrine does not serve as a bar to liability if the risk is not assumed, concealed, or unreasonably increased.  Furthermore, they reiterated that primary assumption of risk must be assessed on a case by case basis and the plaintiff’s skill and experience must be assessed in conjunction with whether the conditions caused by the defendants’ negligence were unique and created a dangerous condition over and above the usual dangers inherent in the sport.

Analyzing the facts before them, the court cited the defective nature of the protective L-screen, the plaintiff’s age and inexperience playing softball and the fact that she was instructed by her coach to stand closer to home plate than is the standard distance for pitching in the sport of softball.  The Appellate Division ultimately remanded the case for a new trial, concluding that the trial court should have charged the original version of PJI 2:55, that addresses the implied assumption of risk, as well as PJI 2:36 to address the plaintiff’s comparative negligence.

Thanks to Michael Nunley for his contribution to this post.



In NJ, Wife Must Reside with Husband to Receive Coverage

In the recent unreported decision of Torres v. State Farm Insurance Companies, plaintiff Dennia Torres appealed a trial determination that State Farm – which provided insurance to Torres’ husband – was not obligated to provide Torres with UIM benefits since she did not reside with her husband in Newark.

Despite being married to Kevin Torres, Dennia Torres lived with her mother in Paterson, New Jersey.  Torres was involved in a motor vehicle accident and her husband’s insurer, State Farm, denied UIM coverage for the loss.  The trial court determined that Torres was not entitled to coverage under the specific language of the policy and she appealed, arguing that the policy was ambiguous.

The Appellate Court agreed that the word “insured” as defined in the State Farm policy was not ambiguous.  Rather, “insured” was defined to include Kevin Torres and his “wife who resides primarily with you.”  Based on the fact that Torres resided out of town with her mother, she was not entitled to coverage under the policy.

Thanks to Heather Aquino for her contribution to this post.

Plead it or Lose it: Failure to Plead Defamatory Statements Warranted Dismissal.

In Abakporo v. Daily News, et al., plaintiff sued the Daily News for two newspaper articles he alleged contained defamatory statements against him.  He also sued for misappropriation of his image pursuant to Civil Rights Law §50.  Though plaintiff annexed the articles to his complaint, his failure to specifically identify the defamatory statements was fatal to his claim.  With respect to the Civil Rights Law, plaintiff failed to adequately allege facts to establish that the photograph accompanying the articles was used for advertising or trade purposes.  Due to plaintiff’s pleading deficiencies, the Second Department affirmed the dismissal of his case.

In evaluating a pre-answer motion to dismiss, courts will liberally apply the facts as alleged in the complaint.  Where a party fails to allege defamatory statements in a defamation complaint, there can be no liberal application of the facts.  As such, in evaluating defamation claims, the first inquiry must always be whether the complaint was appropriately pled, and whether a pre-answer motion to dismiss is feasible.

For more information about this case, please contact Cheryl at



What Do the Titanic and a Commuter Ferry Have in Common?

They might both get the benefit of the maritime Limitation of Liability Act, 46 U.S.C. §§ 30501-30512.

For those of you who haven’t been following the story (or forget that Manhattan is an island), here’s the background.  On January 9, a commuter ferry called the SeaStreak Wall Street was transporting commuters to lower Manhattan.  The ferry (for reasons that are unclear) lost control and crashed into a pier; more than 50 people were injured.  Claims very quickly have followed.  In anticipation of lawsuits, SeaStreak filed a proactive complaint in New Jersey federal court and alleged that under the Limitation of Liability Act, SeaStreak’s liability is limited to the value of the vessel (i.e. $7.6 million) – assuming liability is first found.  Anyone who wishes to contest SeaStreak’s position must file a claim by May 16.  Although no formal claims have yet been filed, counsel for the injured passengers are alleging that SeaStreak “was going too fast, utilized unsafe docking procedures and had an inadequately trained and supervised crew.”  These facts might establish “privity or knowledge” and thus defeat the Limitation of Liability Act.  The defense worked for the Titanic so, it just might work here as well; although notwithstanding this week’s deep freeze, we are unaware of the existence of icebergs in New York harbor.

For more information about this post, please contact Bob Cosgrove at

Scooter Lessor Off the Hook for Incident at County Fair in NY

In Couture v. Miskovitz, the plaintiff complained that  she was struck by a motorized scooter operated by defendant Miskovitz. Miskovitz had rented the scooter from defendant Stillwater Ramps and Mobility Center and was operating the scooter at the county fair at the time of the accident. Defendant Dutchess County Agricultural Society owned the premises. The lower court denied Stillwater’s and Dutchess County’s motions for summary judgment.

In reversing the lower court’s decision, the Second Department held that Stillwater was entitled to summary judgment because it was not vicariously liable for Miskovitz’ actions pursuant to Vehicle and Traffic Law 388. Specifically, the fact that the scooter was not operated on a public highway relieved Stillwater from vicarious liability. Moreover, Stillwater demonstrated that it was not negligent in maintaining the scooter, entrusting the scooter to Miskovitz or in training him how to use it.

The Court also held that Dutchess County was entitled to summary judgment because it did not have the ability or opportunity, through the exercise of reasonable measures, to control Miskovitz’s actions.

 Thanks to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at

NY Legislature Considering No Fault Anti-Fraud Measures

On January 22, 2013, representatives from the Brooklyn and Manhattan District Attorney’s Offices, as well as a representative from AAA, testified before the New York State Legislature regarding the rampant motor vehicle insurance fraud currently happening in New York State. According to the testimony, in 2010, 36% percent of ALL No Fault insurance claims contained some element of fraud, resulting in an estimated $241 million in additional insurance premiums passed along to drivers that year. The testimony comes on the heels of several related bills that were passed before the New York State Senate last March (Why it took ten months between hearings was not discussed in local news.)

Among the bills up for consideration are 1) making it felony to “stage” a crash, 2) making it a felony for medical facilities to use “runners,”, who are paid to steer potential accident victims toward unnecessary medical treatment, and 3) allowing insurers to cancel polices ab initio (“from the beginning,” for you Latin enthusiasts) where fraud has been committed.

One major problem with insurance fraud from an insurer’s perspective is that while fraud is often suspected, it can be very difficult to prove without the testimony of a co-conspirator or evidence of an ongoing scheme. The proof problems with fraud can actually make it more cost effective to settle with suspected fraudsters, rather than go through the time and expense to investigate and litigate fraud, with no guarantee of success. Hopefully, passage of these bills will at least prompt people to think twice before engaging in fraud, which would (hopefully) bring the 36% number down dramatically in the future.

Thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at

NY Medicare Advantage Organizations to Litigants: We Want Our Money Back!!

It is well settled that Medicare has a statutory right to assert a lien on a recovery in a personal injury action. But what about a private insurer that provides health benefits through a Medicare Advantage plan? According to the Second Department, when the insurer’s agreement with its insured provides for reimbursement, it too may assert a lien.

In Trezza v. Trezza, the plaintiff settled his case for $75,000. Shortly thereafter, Oxford, plaintiff’s insurer, asserted a claim for reimbursement for the amounts it paid in medical expenses. The plaintiff’s plan with Oxford was authorized under Part C of the Medicare Act, which allows private managed health care organizations to provide individuals with Medicare benefits they would be entitled to receive under Part A and Part B of the Medicare Act.

Plaintiff moved to extinguish the lien, arguing that pursuant to General Obligations Law 5-335, Oxford, a private insurer, had no right of reimbursement. GOL 5-335 provides that when a plaintiff settles an action for personal injuries, it shall be conclusively presumed that the settlement does not include any compensation for the cost of health care services. It further provides that except where there is a statutory right of reimbursement, no party entering into such a settlement shall be subject to a subrogation claim and no benefit provider shall have a lien on the proceeds of the settlement. In opposition, Oxford asserted that plaintiff owed the same obligation to a Medicare Advantage organization as he does to Medicare. Thus, federal law preempted GOL 5-335 and gave Oxford a statutory right or reimbursement.

Importantly, plaintiff’s insurance contract with Oxford stated that he gave Oxford the right to recover payments from insurance companies. It further provided that Oxford has provided benefits and a judgment or settlement is made with a no-fault or liability insurer, the plaintiff must reimburse Oxford.

The Supreme Court extinguished Oxford’s lien, finding that the Medicare Act did not create a statutory right of reimbursement for Oxford. Instead, it allowed for HMOs to include subrogation rights in its contract with beneficiaries. And since this would be a matter of state contract law, GOL 5-335 controls and therefore precludes Oxford from asserting a lien.

The Second Department reversed. In the opinion, the Second Department agreed with the Supreme Court that Part C permits, but does not require, Medicare Advantage organizations to create a right of reimbursement for themselves in their insurance agreements with insureds covered under Medicare. That is, there is no statutory right to reimbursement in favor of Medicare Advantage insurers such as Oxford, but they can create a right of reimbursement for themselves in their contracts with insureds. Where the Supreme Court and Second Department differed is whether the Medicare Act preempts 5-335. That is, does GOL 5-335 prohibit Medicare Advantage organizations from exercising their contractual reimbursement rights? Focusing the on the direct language of the Act and implementing procedures, the Second Department held that Federal law preempts State law in this context and that a State cannot take away a Medicare Advantage organization’s right under Federal law.

The lesson here is, when dealing with a Medicare Advantage organization’s lien, obtain a copy of the plaintiff’s insurance agreement with the organization and see if it creates a right of reimbursement. If it does, the lien must be dealt with before the settlement is finalized.

Thanks to Gabriel Darwick for his contribution.

For more information contact Denise Fontana Ricci at


NJ Courts Brace for Surge of Sandy Insurance Coverage Suits

Hurricane Sandy left a wake of destruction with uprooted homes and disrupted businesses.  As home and business owners attempt to rebuild, many are learning that their insurance may not cover their losses.  In turn, they are looking to lawyers to sort out their claims and potential suits for coverage against their insurers or malpractice against their insurance brokers.

The Newark Star Ledger reported that these claims may hit the courts in waves with the first arriving three to six months post storm, or about now.  Additional claims are expected as statutes of limitations run.

Coverage litigation will parse out damages based upon exclusions in policies, e.g. claims for wind are  often covered versus tidal surge damages which generally are not.  Complicating matters, anti-concurrent clauses exclude coverage for damages caused by a combination of factors, some of which are excluded.

Where insurance coverage does not exist, brokers will be the target.  At issue will be whether they properly advised their clients regarding available insurance and whether they obtained the insurance requested.

In either event, courts will be busy as the storm continues.

For more information, contact Denise Fontana Ricci at


Plaintiff’s Negligence Can’t “Makeup” Defense Under NY Labor Law § 240

Under New York Labor Law § 240(1), a worker must be provided with adequate protection while working at a “physically significant elevation.”   In Cuentas v. Sephora U.S.A., Inc., the plaintiff testified that the ladder he was using and eventually fell from was both unsteady and too short to enable him to reach the window he was cleaning. Plaintiff freely admitted that prior to his fall from the ladder, he was using the top step of the ladder, which the defendant argued was an inappropriate use of the ladder.  Thus, the defendant contended that the plaintiff’s own negligence was the cause of his fall.

 The trial court granted the plaintiff’s motion for summary judgment, and the Appellate Division, First Department, affirmed.   The court held that the plaintiff established he was not provided with an adequate safety device, and, therefore, his own negligence was of no consequence. The Court noted a different outcome could have come to pass if there was evidence in the record that an adequate ladder was provided to the plaintiff and his accident occurred solely because of his loss of balance while using a properly secured ladder.

Thanks to Joseph P. Fusco for his contribution.

For more information, contact Denise Fontana Ricci at