GVK Partner, Joseph “Jay” Rava is excited to be speaking at the NYWBA Civil Courts and Litigation Committees and Jewish Lawyers Guild CLE Program
on Friday, January 22, 2021
1:00 pm – 2:10pm via Zoom
Other Speakers:
Hon. Lisa A. Sokoloff, Acting Supreme Court Justice, NY County
Bryce Mosse, Partner, Wingate Russotti Shapiro & Halperin
RSVP Required: CivilCourtsChairs@nywba.org
No Cost to Attendees
Materials, link and passcode to attend will be sent via email after receipt of RSVP. Questions please contact cle@nywba.org
1 professional practice credit to be issued by NYWBA
*CLE Credits: 1 professional practice credit. The New York Women’s Bar Association is an accredited CLE provider. Approval of CLE credit is pending in accordance with the requirements of the NYS CLE Board for the above-listed credit hours for established attorneys and as transitional credit hours for newly admitted attorneys.
The matter involves an underlying personal injury action, wherein the plaintiff sued our insurance carrier client’s insured for damages incurred as a result of a slip/trip and fall accident taking place on the insured’s property. When applying for coverage, the insured defendant elected first-party property damage coverage only. However, after being named a defendant in the underlying personal injury action, the insured defendant claimed he was entitled to general liability coverage under the subject policy and filed a declaratory action against our client seeking defense and indemnity of the plaintiff’s claim. Specifically, the insured defendant claimed he misinterpreted the coverage application form, and that his mistake was not a valid reason to disclaim coverage.
In our motion for summary judgment, we argued the insured never purchased commercial general liability coverage, and therefore, the carrier was not obligated to indemnify or defend the insured in the underlying action brought forth by the plaintiff. The motion was granted by The Honorable Keith Lynott, J.S.C. The Court agreed with our arguments and concluded the insured’s confusion or intent when filling out the insurance application and applying for insurance coverage is not relevant. Rather, the policy itself is the document that forms the contract/agreement between a carrier and its insured, and the policy herein is unambiguous. The Court held it is undisputed that the text of the policy does not provide coverage for general liability claims alleging bodily injury as a result of work or other activities conducted on or at the insured property. Consequently, our motion for summary judgment filed early and during the discovery period was granted, and all claims against the carrier have been dismissed with prejudice.
Even in New York sometimes procedural rules matter for both plaintiffs and defendants. Whereas, historically, courts in the State of New York rarely granted defaults and/or refused to dismiss a case on procedural grounds, there is a growing trend by the courts to grant procedural-based applications notwithstanding substantive and equitable considerations.
In this matter, Plaintiff claimed to have tripped and fallen into a hole on the premises where she resided. We represented the landscape contractor who also provided the superintendent for general maintenance. Notwithstanding Plaintiff’s counsel’s repeated failures to comply with Court Orders, discovery was ultimately completed and a motion for summary judgment was timely filed. Among other things, we argued that our clients were not negligent, did not owe Plaintiff a legal duty and that none of the exceptions for independent contractor liability set forth in Espinal V. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002) were applicable. The other defendants made similar motions. Plaintiff, belatedly under the Court’s rules, sought an adjournment of the motions, which was denied by the lower court. Plaintiff made numerous attempts, including ex parte communications with the Court, for additional time to respond to the motions and Plaintiff finally moved by Order to Show Cause to extend her time to submit opposition to the motions and raised for the first time additional reasons why the application should be granted.
The Supreme Court Westchester County granted the Defendants’ motions for summary judgment and denied Plaintiff’s Order to Show Cause in a substantial decision setting forth the strict rules for abiding by court-imposed deadlines. Plaintiff’s counsel attempted to appeal the granting of the summary judgment motions but was forced to withdraw that application as Plaintiff had not opposed the motions. Plaintiff’s counsel then appealed the denial of the Order Show Cause that sought additional time to respond to the summary judgment motions. After submission of the briefs and oral argument, the Appellate Division Second Department issued a unanimous ruling affirming the lower court’s denial of the application. The Second Department stated, in part, that the lower Court did not improvidently exercise its discretion, that Plaintiff failed to offer a valid excuse for the extension and that the record reflected that the need for the adjournment resulted from a lack of due diligence on the part of the Plaintiff.
Plaintiff then moved for leave to appeal to the Court of Appeals arguing, among other things, that the default was not her fault and that it was in fact her counsel’s failure. We argued in opposition that this latter argument was new and never raised by Plaintiff in the lower courts. In addition, we argued, in opposition to the application, that Plaintiff did not present any legal basis for the Court of Appeals to accept the appeal. After Plaintiff’s motion was fully briefed, the Court of Appeals dismissed Plaintiff’s motion, finding that the lower court’s order did not finally determine the action within the meaning of the Constitution.
The Appellate Division, Second Department unanimously reversed the lower court’s decision which incorrectly denied summary judgment to GVK’s client, a janitorial contractor. Plaintiff, a hotel employee, alleged serious injuries as a result of a slip and fall on grease within a loading dock.
GVK argued that the janitorial contractor could not be found to owe a duty of care to Plaintiff pursuant to the seminal Court of Appeals case of Espinal v. Melville Snow Contrs., which sets forth the three exceptions by which a defendant may be held to owe a duty of care to a non-contracting party. As is relevant here, the janitorial contractor submitted testimony and evidence that it did not transport grease and was not responsible for cleaning grease spills within the loading dock. Thus, GVK argued that the janitorial contractor could not be found to have “launched a force of harm”. Plaintiff attempted to raise a triable issue of fact by pointing to testimony that the contractor occasionally undertook additional cleaning tasks within the loading dock when asked by the building manager. The lower court erroneously denied the janitorial contractor’s summary judgment motion finding that Plaintiff raised a triable issue of fact whether the janitorial contractor “launched a force of harm”.
On appeal, the Second Department reversed and pointed out that Plaintiff testified she did not know how the grease spot was created or who was responsible for cleaning the grease, and had never seen the contractor mopping the loading dock. Thus, any contention that the contractor created the condition would be purely speculative and conclusory and not sufficient to raise a triable issue of fact.
Sara R. David joined the firm in 2015. Her practice focuses on the defense of high exposure and complex litigation matters involving the New York Labor Law, premises liability, transportation and commercial claims. Sara has vast experience handling all aspects of litigation, including trials and appeals in both New York and New Jersey. She is a creative and determined advocate who has achieved numerous successful outcomes for her clients.
William Parra has been with the firm since 2009. He specializes in insurance coverage and risk transfer issues in construction-related matters, in the defense of property owners, general contractors, construction managers, contractors and their respective insurers. He handles coverage matters involving the duty to defend, additional insured endorsements, Ins. Law §3420(d), priority of coverage, bad faith and occurrence issues for general liability, business auto, all-risk and excess/umbrella insurers. He also handles high exposure premises, municipal, products liability and wrongful death matters. Will has a growing practice as monitoring, coverage and appellate monitoring counsel for excess insurers.
Roberto D. Uribe has been with Gallo Vitucci Klar since 2014. He focuses his practice on catastrophic and high-exposure commercial transportation accidents and is a member of GVK’s 24/7 Emergency Response Team. Rob is experienced in litigating cases from the prelawsuit stage through post-trial in his defense of commercial transportation companies and their insurers in State and Federal courts in New York and New Jersey in a wide variety of claims including wrongful death matters. Rob’s experience and case handling also extends to high-exposure premises liability matters.
We are excited by the promotion of this talented and exceptional group of lawyers. Their hard work and importance to the firm is a foundational part of our ongoing success and our ability to evolve to meet the changes and challenges of the market. They each are integral components of GVK and have vastly contributed to our continued growth and achievements. We look forward to their ongoing contributions.
GVK is pleased to welcome Joseph J. Rava as a Partner to the firm and as Co-Chair of our New York Labor Law and Construction Practice Group. Joe has over 30 years of experience handling complex construction matters.
Before joining GVK, Joe was Co-Chair of a New York Labor Law practice group at a regional defense firm. Previously, he was regional house counsel for Harleysville/Nationwide Insurance, where he formed and staffed a unit of lawyers dedicated to the defense of New York Labor Law matters, and also managed teams of New York Labor Law and general liability lawyers.
Throughout his career, Joe has handled a wide array of complex casualty liability matters including product liability, automotive liability and commercial general liability matters but has focused his practice on the defense of New York Labor Law actions. He is additionally experienced in professional malpractice and insurance coverage disputes. He aggressively handles matters to achieve favorable resolutions for his clients through summary dismissal, mediation/arbitration and at trial. Joe has also presented to clients and colleagues on the defense of New York Labor Law matters and on related damages and insurance issues.
Bryan T. Schwartz, Esq. and Jeremy M. Weg, Esq.
The legal community in the New York Metro area is facing unprecedented times due to the Coronavirus pandemic. Drastic measures were introduced by New York’s Governor Andrew M. Cuomo, including the issuance of multiple Executive Orders tolling statutes of limitations pertaining to civil matters in this State, as well as a directive to largely stay all non-essential litigation in State Courts. One remaining issue not yet decided by the Courts is whether the Governor’s broad toll on time limits set forth in the CPLR is applicable to pre-judgment and post-judgment interest at the presumptively reasonable statutory rate of 9% prescribed by CPLR §5004.
On March 13, 2020, the Chief Judge of the State of New York issued an unprecedented directive limiting court operations to essential matters effective March 16, 2020. In accordance with this directive, Governor Cuomo signed Executive Order 202.8 on March 20, 2020 which issued a broad, sweeping toll on “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding.” Then, by Administrative Order 78/20, Chief Administrative Judge Lawrence Marks substantially stayed all litigation in this State by directing that “effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters . . . This directive applies to both papers and electronic filings.”
The Unified Court System slowly acclimated to our new reality of virtual court appearances and litigation has partially resumed. Beginning May 25, 2020, new nonessential matters were finally permitted to be electronically filed with the Courts. Nevertheless, litigation in New York has not returned to pre-pandemic levels, and matters continue to crawl through the litigation process. The Coronavirus pandemic has caused extensive delays in litigation which we anticipate will take years to get back on track.
With that said, despite court closures, litigation slow down and extensive delays, prejudgment and post-judgment interest continues to accrue at the presumptively reasonable statutory rate of 9% resulting in a windfall for plaintiffs, through no fault of the defendants. To this end, in every dispositive motion our firm has opposed since March, 2020, we include the argument that to the extent the motion is granted, interest should not accrue through at least the expiration of the tolling periods set forth in the Governor’s Executive Order.
We recognize the Court’s typical rationale that the imposition of interest is not a penalty but instead represents the cost of having the use of another person’s money for a specified period. However, we also recognize that the presumptively reasonable statutory 9% interest rate was developed to incentivize parties to enter into reasonable negotiations. We believe it is inequitable for defendants to be prejudiced by this seemingly unlimited accrual of interest incurred during these highly volatile and ever-changing times. This is especially true when the court closures and slowdowns can result in cases being delayed for years beyond the typical Standards and Goals date, civil trials are not anticipated to resume regularly until the second half of 2021 and likely resulting in significant interest accrual.
As of today, we have yet to receive an order from the Court accepting or rejecting our argument with respect to interest accrual. We will provide a further update once this issue is decided by the Court.
For more information, please contact Bryan Schwartz at Bschwartz@gvlaw.com or Jeremy Weg at Jweg@gvlaw.com or by phone at the firm’s New York office at 212-683-7100.
Since the outbreak of the COVID-19 pandemic, most insurers throughout the country have denied business interruption (BI) claims received from their policy holders based on the economic losses they have suffered as a result of the virus. Many insurers rely on specific language contained in their policies that exclude claims arising from losses due to viruses, bacteria or “contamination”. Even when such precise language is not included in the policies, insurance carriers throughout the industry have denied the claims based on their contentions that the claimed losses did not result from “property damage” because there was no physical damage to the structures or covered property.
Despite billions of dollars in losses claimed by businesses, the public sentiment supporting coverage and the outcry of private citizens, insurance regulators and many politicians, the demands that the government intercede to mandate that insurers cover these claims have largely been unsuccessful. Moreover, although litigation has been threatened throughout the nation, relatively few lawsuits have been filed in proportion to the number of potential claims. In the suits that have been filed, the presiding judges in all but a couple of cases have granted the defendant insurers’ motions to dismiss these legal actions. Most of the decisions support the insurers’ position that the claims are not covered because of the absence of some physical damage to the covered property.
In a suit pending in the Superior Court of New Jersey, Bergen County, the Hon. Michael N. Beukas recently denied Franklin Mutual Insurance Company’s motion to dismiss a lawsuit filed by Optical Services USA. In that case, Optical conceded that its business did not suffer “physical” damage i.e. a material alteration or damage but asserted that it suffered business income losses as a result of the state’s coronavirus quarantine and stay at home orders. During telephonic oral argument of Franklin Mutual’s motion to dismiss conducted on August 13, 2020, Judge Beukas stated that “the term “physical” can mean more than material alteration or damage.” Judge Beukas was receptive to Optical’s claim that it suffered a covered physical loss due to Governor Murphy’s Executive Orders and permitted the case to proceed. Significantly, Judge Beukas ruled that it is the insurer’s burden to prove that the claim is not covered.
Judge Beukas’ ruling is inconsistent with the rulings of many state and federal judges in other jurisdictions including Michigan, Texas, California, New York and the District of Columbia. In those cases, the jurists ruled that coverage is excluded unless the policy holder’s losses derived from some tangible physical damage to property. Judge Beukas’ decision is, however, consistent with another by the Hon. Stephen R. Bough of the United States District Court, Western District of Missouri issued in the class action suit, Studio 417 v. Cincinnati Ins. Co. Judge Bough denied Cincinnati’s motion to dismiss filed pursuant to FRCP 12(b)(6). A motion under this statute seeks a dismissal based upon the defendant’s claim that the complaint failed to state a cause of action upon which relief may be granted. In deciding such motions, the court is constrained to accept all allegations set forth in the complaint as true. In the Studio 417 case, Judge Bough gave policy holders hope when he ruled that the complaint, on its face, sufficiently stated a claim that may have merit. Significantly, Judge Bough emphasized that the policy by Cincinnati Insurance Co. did not include a virus or bacteria exclusion. He noted that the policy holders contend that the subject policies were “all risk” policies that provided coverage for economic losses due to a covered “physical loss or physical damage” and that the policies did not define the terms “physical loss” or “physical damage”. The Court was clearly receptive to the claimants’ arguments that a physical loss may be different than physical damage. He also was receptive to the viability of a claim that the coronavirus was physically present on the covered property. Although Judge Bough did not rule Cincinnati is required to cover the claimed losses in that case, he permitted the case to proceed.
Although Judge Beukas’ ruling provides hope and optimism for policy holders who have suffered business interruption losses as a result of executive orders, business owners should appreciate that his ruling may not have the precedential effect they hope for. In the Optical case, Franklin Mutual Insurance Company’s counsel apparently conceded that the virus exclusion in its policy does not apply. This contention is seemingly in contrast with the positions taken by most other insurers who have successfully argued that the unambiguous language of their policy exclusions must be strictly interpreted and enforced. That fact notwithstanding, discovery in the suit will proceed and the case will continue with discovery and possibly a trial. These facts potentially open the door for millions of business owners to seek recovery for their losses.
Questions concerning this publication, or the handling of COVID-19 claims should be directed to Kenneth S. Merber, Esq. who is a partner of Gallo Vitucci Klar, LLP and who is leading GVK’s COVID-19 Response Team at 201-683-7100 ext. 106 or kmerber@gvlaw.com.
In a unanimous decision, the First Department affirmed the Lower Court’s decision to grant Summary Judgment
in favor of GVK’s client, a construction manager. In this matter, the plaintiff, who was the foreman for the third-party defendant roofing subcontractor, alleged serious injuries as a result of a trip-and-fall over short, protruding steel rebar dowels that had been installed in the roof’s surface. The purpose of the rebar was to secure the concrete to the roof’s surface, after the area was waterproofed and the concrete was poured. The roofing subcontractor decided to discontinue use of orange safety caps on the rebar, because the caps interfered with the waterproofing process.
The First Department ruled in our client’s favor and affirmed the Lower Court’s decision in that plaintiff’s Labor Law § 241(6) claim was properly dismissed because the steel rebar was “an integral part of the work being performed”. The Labor Law § 200 claim was properly dismissed because the GVK client’s construction manager did not “exercise supervisory control” over the work of the subcontractors, and the construction manager did not direct
the subcontractors to stop using the orange safety caps on the rebar.
Gallo Vitucci Klar LLP is proud to announce that Taranae J. Hashemi has joined the ClaimsXchange Advisory Board along with Marina Barg Sr. Vice President, Claims at W. R. Berkley Corporation and Devina Joiner, JD Technical Director, E&S Specialty Claims at Nationwide.
ClaimsXchange connects innovative and collaborative professionals who share a passion for advancing the claims and litigation management industry and connecting with other talented and driven claims and litigation professionals. ClaimsXchange is designed to provide members with a unique space for meaningful new connections and alliances in a more intimate meeting format.
For membership information, visit www.theclaimsx.org.