While there is no date set for Civil jury trials to resume in New York, court administrators have been busy promulgating new rules which will substantially affect trial practice. As you will note, many of the new rules are adapted from Federal trial practice. Gone are the days when evidentiary rulings will be made with a witness on the stand and a jury in the box. Some of the key changes to the New York Uniformed Rules are discussed below.
1. Pursuant to Rule 202.34 all parties must consult with each other regarding proposed trial exhibits before the trial begins. The exhibits which the parties agree upon will be admissible and admitted into evidence before the trial begins. As a practical matter, counsel will be able to use agreed upon exhibits during openings if so desired.
2. Rule 202.34 also provides that the court must rule on any objections raised to exhibits “at the earliest possible time”. The rules indicate the court should make evidentiary rulings as early as the pre-trial conference.
3. Unless the court sets a different date, the parties must submit a pre-trial memoranda to the court of not more than 25 pages. See Rule 202.20-h[a].
4. Pursuant to Rule 202.20-h[b], on the first day of trial, the parties must submit a joint indexed binder or electronic document containing all the exhibits upon which the parties will rely. The presumption is that the court will have made all evidentiary rulings before trial, therefore the submitted binder will only contain admissible evidence.
5. Unless the court sets a different deadline, pursuant to Rule 202.20-h[c], the parties are submit charge requests and interrogatories on the first day of trial. It is axiomatic that the parties will need to know which exhibits will be admitted before preparing a charge request.
6. Unless the court states otherwise, Rule 202.37 will require each party to submit a written witness list at the start of trial. The list must identify all witnesses, when the witness will be called and estimate how long each witness will take. This rule does not apply to impeachment witnesses.
As of now, court administrators have not made any changes to the way jurors will be selected, however we should be prepared for changes to the selection procedures as well. Early evidentiary rulings may encourage additional settlement discussions and hopefully these changes will minimize the unpredictability at trial, something which most often hurts defendants. We will continue to keep you updated.
Following six years of contentious litigation, Jeannine Davanzo and Krystina Maola, obtain summary judgment in favor of GVK’s client, a healthcare products manufacturer, in a products liability and negligence lawsuit filed in Kings County, New York. The plaintiff alleged that he sustained injuries after he slipped and fell on water he claimed was emanating from the client’s ultrasonic cleaner during his employment at a hospital. The cleaner had undergone
routine preventative maintenance pursuant to a contract with the plaintiff’s employer approximately one month prior to the plaintiff’s alleged accident, which showed no water leaking or other issues.
The plaintiff testified that while performing his work, he would spill or drip water onto the floor. He also testified that the water that allegedly caused his accident could have originated from other cleaners and/or sinks in the room where he worked. Additionally, the plaintiff admitted that he had seen water on the floor on multiple occasions prior to his accident and would mop it himself and report it to his supervisor, neither of which he did on the date of his
accident.
GVK’s attorneys moved for summary judgment on several grounds, including that plaintiff could not establish the client’s product was defective in any way and that the client did not owe a duty to the plaintiff as a non-contracting third party, negating the required element for a negligence claim. In opposition, the plaintiff argued that the manufacturer of the cleaner owed a duty to him under the exceptions set forth in Espinal v. Melville Contrs., 90 N.Y.2d 136 (2002).
The court rejected the plaintiff’s argument, determining that there was no proof in the record to support the plaintiff’s products liability claim. The court also determined that the plaintiff’s negligence claim failed because the plaintiff did not allege any of the exceptions pursuant to Espinal that might give rise to a duty to plaintiff on the part of the manufacturer of the cleaner in his pleadings. The first time the plaintiff raised any of these arguments was in opposition to the motion for summary judgment. The court further agreed with defendant that since the
plaintiff did not plead the exceptions in his Complaint or Bill of Particulars as required, dismissal of the Complaint was appropriate. The case was dismissed in its entirety and plaintiff has not appealed.
The Honorable J. Curtis Joyner, in his decision dated January 8, 2021, in the case of Humans & Resources, LLC, d/b/a Cadence Restaurant vs. Firstline National Insurance Company, 20-CV-2152 (USDC, EDPA) denied the insurer’s motion to dismiss the policy holder’s declaratory judgment complaint which seeks damages for business interruption losses related to COVID-19 and the stay-at-home orders issued by the Governor of Pennsylvania and the Mayor of Philadelphia. The Court’s decision is seemingly overreaching as it ignored the plain unambiguous policy language to allow the policy holder to maintain a claim based on its assertion that it reasonably believed the policy would provide coverage for its losses.
In reaching its decision, the Court acknowledged that the subject “All Risk” policy required that the loss suffered by the business was caused as a result of some actual physical property damage or loss. The Court appreciated that the insured restaurant did not suffer any actual physical loss and that civil authority coverage was not triggered. Moreover, the subject policy contained a virus exclusion that excluded claims for losses resulting from viruses such as COVID-19. To reach its goal-oriented result, the Court applied Pennsylvania’s Doctrine of Reasonable Expectations and held that the policy holder’s “reasonable expectations” may have superseded the unambiguous policy language and exclusions.
“Under this doctrine, Pennsylvania courts have acknowledged the inherent disparity of bargaining power that exists between an insurer and insured, as well as the complexity of policy terms and conditions in insurance contracts,” and that “[t]his dynamic sometimes ‘forces the insurance consumer to rely upon the oral representations of the insurance agent’ which may or may not accurately reflect the contents of the written document.”
Although “in most cases, the language of the insurance policy will provide the best indication of the content of the parties’ reasonable expectations,” the courts must nevertheless “examine the ‘totality of the insurance transaction involved to ascertain the reasonable expectations of the insured.'”
Rational minds must question how a policy holder could have had a “reasonable” expectation that it purchased coverage for the claimed losses when the policy language expressly excluded coverage for those claims and where the Court concluded the policy language was not ambiguous and has been upheld in other cases.
The Court’s overreaching decision is disturbing. It was seemingly issued in contradiction with principles of both contract and insurance law. In fact, the Court, expressly stated in its decision that interpretation of contracts is generally an issue of law for the court. We note that the Court did not grant the policy holder summary judgment but merely denied the carrier’s motion to dismiss on the pleadings. Consequently, the Court allowed discovery to proceed. Insurers in Pennsylvania and throughout the country must hope that the case is either dismissed at trial or through appeals that will undoubtedly be filed.
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.