Monthly Archives: July 2013

Witness Shows That It Is Sometimes Better To Be Ordinary Than Special (NY)

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Many people take pride in holding themselves to a higher standard in life’s endeavors. In the business world, it can earn the respect of colleagues and customers. In personal relationships, it can earn the trust of family and friends. In that sense, it is often wise to insist on a higher standard, but that is not always the case.

In Williams v. New York City Tr. Auth., plaintiff sued the New York City Transit Authority for injuries he sustained as a result of being struck by a bus. Because the plaintiff stepped off the curb without looking, liability hinged on whether the driver operated the bus too close to the curb. In support of its claim that the bus was operated too close to the curb, plaintiff offered, over the defense’s objection, the videotaped testimony of a retired Transit Authority supervisor who based his testimony on Transit Authority operating criteria, which he admitted “are much higher than anyone else’s, so I would look at the accidents by our standards a lot different from anyone else.” The Appellate Division reversed the judgment in favor of plaintiff, holding that the admission of testimony holding a defendant to a higher standard of care than the one required by law was clearly erroneous. 

Litigants are always trying to put their best foot forward in a courtroom, and for good reason. A witness that is shown to be more careful, knowledgeable, qualified, and competent is also likely to be more persuasive. But when preparing a witness for trial, it is essential that the most basic principles of law not be overlooked. While holding yourself and colleagues to a higher standard is commendable in day-to-day life, it can be disastrous on a witness stand.

Thanks to Mike Gauvin for this post. If you have any questions, please email Paul at.

Criminal Conviction Proves Facts, and Relieves Insurer (MVAIC) of Liability (NY)

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In Brooks v. Rivera, plaintiffs were standing on a sidewalk when they were stuck by an uninsured car driven by defendant. In a subsequent criminal prosecution, defendant plead guilty to felony assault and reckless felony assault. Plaintiffs commenced a civil action against defendant and a nonparty Motor Vehicle Accident Indemnification Corporation (MVAIC). As an aside, MVAIC provides coverage/benefits to a New York resident injured in a motor vehicle accident who does not have any other auto insurance available to him. Even after two criminal convictions, the lower court held that plaintiffs were not the victims of an intentional tort and directed the nonparty MVAIC to appear and defend on behalf of uninsured defendant.

The Appellate Term, First Department reversed the order and held that a criminal conviction is conclusive proof of the underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue. Defendant’s guilty pleas to both intentional and reckless felony assault precluded a finding that defendant’s actions were not intentional, thus relieving the MVAIC of its liability to the uninsured defendant. Under its policy, MVAIC is only required to defend an uninsured for his negligent acts.

A defendant may have civil liability to those he injures, but that will not create a duty on the insurer for a defendant’s intentional acts that cause harm. A conviction proving intent is enough to relieve the insurer of involvement in a subsequent civil suit.

Thanks to Anne Mulcahy for her contribution to this post. If you have any questions, please email Paul at .

Email Can Seal a Settlement (NY)

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Although most of us aspire to be “men [and women] of our word,” New York requires more than a handshake or oral agreement to constitute a binding settlement. CPLR 2104 insists on “a writing subscribed by [a party] or his attorney.” In this age of emails, text messages, posts and tweats, the vexing question is what constitutes such a writing.

In Forcelli v. Gelco Corporation, the defendants filed a motion for summary judgment in this motor vehicle accident case. While the motion was pending, the parties participated in an unsuccessful mediation but continued their negotiations thereafter. After the usual back and forth, the third party administrator for the defendants wrote a email to plaintiff’s counsel confirming that her settlement offer of $230,000 had been accepted, conditioned on the tender of the customary settlement documents. She also ended her correspondence, “Thanks Brenda Greene.”  As bad luck would have it, the motion judge issued a favorable decision granting the defendants’ summary judgment motion about 3 weeks later  but before the plaintiff sent the requested settlement documents to the adjuster. It appears that the defense attorney had not been advised of the settlement and rejected the papers once received because “no settlement had been consummated…”    A dispute then arose about whether an actual enforceable settlement had been reached.

Adopting a common sense approach and embracing email as a ubiquitous method of communication, the Appellate Division, Second Department held that the email confirmation meet New York’s statutory requirement that a settlement be confirmed in “a writing subscribed by [a party] or his attorney.”  The third party administrator was deemed an agent of the defendants’ insurer.  As important, the adjuster’s type written insertion of the simple phrase, “Thanks Brenda Greene,” satisfied the requirement that the settlement be subscribed in writing.   Of note,  the court hinted that an automatic return address may not be sufficient but that is for another day.

Emails are here to stay and it is encouraging to observe the court’s embrace of newer methods of doing business. The lesson for both sides of the bar is simple:  insist that your adversaries add their type written names at the end of an email if you want a binding agreement.

If you have any questions about this post, please email Paul at .

 

 

 

Is A-Rod Causing Problems Beyond Baseball?

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Alex Rodriguez has caused a host of problems for baseball and the Yankees. It now appears he might be about to start causing insurers problems. The question is — how bespoke is the insurance policy such that the voiding of a $100,000,000 insurance contract is covered (or excluded) by the policy? Stay tuned to find out!

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

Art Dealer Indicted for Sale of Fraudulent Art (NY)

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The Knoedler Gallery story was in the news again recently, as Glafira Rosales, the dealer at the heart of the fraud, was indicted by the US Attorney’s office in New York. The indictment details an extensive fraudulent scheme, involving over 60 works of art and $30 million.

The indictment alleges that over a 15 year period, Rosales sold paintings to two galleries that purported to be by notable artists such as Jackson Pollock, Mark Rothko, and Willem de Kooning.  Rosales claimed that she obtained the works from two anonymous collectors, one from Switzerland and the other from Spain. Instead, it is claimed that Rosales knowingly sold fraudulent works, funneling the proceeds into various bank accounts maintained by her or her boyfriend.

One interesting aspect of the indictment is the extent of the tax crimes and money laundering charges.  Indeed, the fact that the paintings sold were fake seems secondary.

But on that issue, a recent article raises an interesting question: how will the US Attorney’s office establish that the works are counterfeit?  In a number of related civil suits, the plaintiffs used forensic conservator James Martin, who analyzed the type of paint used to create the works.  But the civil defendants have challenged those findings, and it will be interesting to see how this issue impacts the criminal case.  Unfortunately for Rosales, she will still need to face the battery of financial crimes.

Please write to Mike Bono if you would like more information.

 

 

Team WCM Completes Westfield 5K Run

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WCM’s New Jersey office participated in the 2013 Westfield 5k Run, which included over 1,000 runners from the tri-state area. Partner Denise Ricci finished in 5th place for her age category while Gabe Darwick, a visitor from our New York office, stunned his colleagues by running a 6:30 minute mile pace and placing 6th in his age group. The field was rounded out by Paul Clark, Dennis Wade, Alison Weintraub, Emily Kidder and Johan Obregon who all posted respectable times for their runs. Heather Aquino was a last minute scratch and put on the injured reserve list while Lillian Alers traveled all the way from the beautiful Bronx to cheer her colleagues on.  The team savored its many victories, both real and imagined, in an après race gathering at Dillon’s Publick House in Mountainside.

If you can run a sub-5 minute mile pace and have a law degree, you may consider applying for a position at WCM by contacting Paul at .

 

Signed Releases Cook Plaintiff’s Harrassment Suit Against McDonald’s (NY)

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It is not uncommon for a party who signs a pre-suit release to have “buyers remorse” and decide to file suit anyway.  The issue recently arose in Nelson v. Lattner Enters. Of N.Y., where, despite signing a release, plaintiff sued a McDonald’s franchisee and the McDonald’s Corporation for sex discrimination and sexual harassment.

Plaintiff was a restaurant manager for the franchisee for approximately six years, and reported to the Corporation that her supervisor, Lattner, repeatedly subjected her to sexual harassment. During a meeting in December 2007, plaintiff signed a handwritten settlement agreement, consenting to leaving her employment and releasing all claims in exchange for severance payment and medical benefits.  In a subsequent meeting, plaintiff signed a typed settlement agreement and release which comprehensively released all defendants from any liability in exchange for severance pay of $18,688.10 and continued medical benefits.

When bringing suit against the defendants, plaintiff claimed that the signed releases were not valid and should be void because she signed them under duress.  The trial court dismissed plaintiff’s action and the Second Department affirmed the dismissal of the claims.  Even assuming that plaintiff was under duress when signing the handwritten first agreement, the Court found that she was not under duress when signing the second typed agreement.

In the second meeting, plaintiff was unable to demonstrate any unlawful act that compelled her to sign.  Further, the Court noted that the typed agreement indicated in bold that she should consult with an attorney, that she had 21 days to consider the agreement, and that she could even revoke the release up to seven days after signing it.  Notwithstanding the language in the agreement, the Court also found that plaintiff’s conduct waived her objections and ratified the agreement by accepting and retaining the benefits for nearly two years before bringing suit in 2009.

Thanks to Jung Lee for his contribution to this post.  If you would like more information please write to Mike Bono.

No Horsing Around: Court Denies Summary Judgment in Equine Case (NY)

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A recent decision from New York’s Appellate Division serves as a reminder that the defense of domestic animal cases can be difficult when multiple parties are familiar with the animal at issue.   In Carey v. Schwab, a case straight out of the Old West, the defendant and his two companions rode three horses down to a local tavern.  While the defendant and his friends were inside, two of the horses, Whiskey and Cowboy, got free of their restraints and began to run down the road.  One of the defendant’s companions, Jan Wilson, bolted out of the tavern and after the horses.

Plaintiff was nearby and attempted to assist in corralling the horses.  Wilson caught Whiskey and asked plaintiff to hold the horse while she attempted to corral Cowboy.  While plaintiff was holding Whiskey’s reins, the horse suddenly “head swatted” plaintiff after it apparently “got spooked.” Plaintiff was knocked unconscious, fell to the ground and was dragged and stepped on by Whiskey.

The defendant moved for summary judgment, alleging that plaintiff failed to demonstrate that he had prior notice that Whiskey “had any vicious propensities or a history of dangerous behavior.”  In opposition, plaintiff offered the testimony of his neighbor who also witnessed the incident and had tried to help.  The neighbor had previously witnessed defendant riding his horses, and noted that horse previously acted aggressively.

The Appellate Division, Third Department, affirmed the trial court’s decision denying defendant’s motion for summary judgment, finding genuine issues of fact sufficient to preclude summary judgment.  The court noted the neighbor’s affidavit created a credibility issue that only a jury could resolve.

Thanks to Steve Kaye for his contribution to this post.  If you would like more information, please write to Mike Bono.

Turnabout Is Fair Play? Does Twombly Apply to Affirmative Defenses? (NJ)

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Folks are familiar with Twombly, the United States Supreme Court decision that makes it clear that federal court plaintiffs must plead their cases with specific particularity to provide full notice of the claims in order to survive a motion to dismiss. The question is – does Twombly apply to affirmative defenses or counterclaims? There is no binding nationwide federal precedent that answers that question and different trial courts have come up with different answers; for example, New York courts have held that Twombly does apply to counterclaims and affirmative defenses.

In one of the more recent decisions from NJ, Signature Bank v. Check-X-Change, LLC, District Court Judge Esther Sallas was forced to address the issue when Signature moved to dismiss Check-X-Change’s counterclaim and strike its affirmative defenses. Judge Sallas ruled against Signature and held that Twombly (under Third Circuit precedent) only applies to complaints and not the responses thereto. Underscoring her reasoning was the notion that “substantial issues of fact and law are properly viewed only after the opportunity for discovery.”

Although Signature is a positive developments for NJ (and possibly all Third Circuit (including PA)) defendants, the issue is something to be wary of. Form denials and rote pleadings may be going the way of the dodo bird and fact based and specific pleadings may be the wave of the future as federal courts (in the age of the sequester) attempt to keep cases out of the system.

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

Verbal Threshold Applied in New Jersey Motor Vehicle Case

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In Michael Systma v. John Serignese, the 22-year-old plaintiff was living in Manhattan on a one-month lease set to expire on September 30, 2009.  On September 13, 2009, the pedestrian plaintiff was struck by a motor vehicle.  At the scene of the accident, plaintiff provided his parents’ mailing address to the responding officers, and used their address in the  emergency room.  Plaintiff received PIP benefits under his parents’ automobile insurance policy, since he did not own his own vehicle or maintain his own auto insurance.  Plaintiff filed a personal injury suit against the driver.  Defendant argued that plaintiff was subject to the verbal threshold, since his parents’ policy elected the limitation on lawsuit provision. Plaintiff argued that he did not live with his parents at the time of the accident, and therefore should not be subject to the verbal threshold in their auto policy. The Appellate Court held that due to plaintiff’s temporary short term lease, and use of his parents’ mailing address, plaintiff should be considered a resident of his parents’ household, and subject to the limitation on lawsuit provision in their policy.

Special thanks to Heather Aquino for her contribution to this post.  For more information contact ">.