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Publications

Louis D. Brandeis: American Prophet

By Andrea Alonso

New York Law Journal – October 24, 2016

Synopsis: A review of the book by Jeffrey Rosen.

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Hazard Vehicles: When Does Reckless Disregard Standard Apply?

By Kenneth E. Pitcoff and Kevin G. Faley

New York Law Journal – September 7, 2016

Synopsis: A review of the expanded protections afforded to hazard vehicles under New York Vehicle and Traffic Law (VTL) § 1103.

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Liability and Emergency Responders: a U-Turn Around 'Kabir'

By Kenneth E. Pitcoff and Andrea M. Alonso

New York Law Journal – July 15, 2016

Synopsis: In 2011, the Court of Appeals drastically undercut the protection afforded to emergency responders under New York Vehicle and Traffic Law (VTL) § 1104. '

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When Same-Sex Harassment Creates a Hostile Work Environment

By Kenneth E. Pitcoff and Kevin G. Faley

New York Law Journal – June 2, 2016

Synopsis: A review of the current standards for same-sex harassment claims.

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Insurance Claims Files: How Privileged Are They?

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – April 29, 2016

Synopsis: A discussion on privilege regarding insurers’ claims files during discovery in first-party and third-party litigation.

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Proper Objections at a Personal Injury Deposition

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – March 21, 2016

Synopsis: There are four main categories of questions at a deposition which an attorney can instruct his client not to answer

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Priority of Insurance in Construction Accidents

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – February 18, 2016

Synopsis: A discussion on how to determine the priority of insurance in construction accident cases

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Pope's New Rule on Annulment: Will the Law Keep Up?

By Andrea M. Alonso & Kevin G. Faley

New York Law Journal - December 18, 2015

Synopsis: A review of New York Domestic Relations Law Section 253 and its applicability to Jewish and Catholic religious divorces.

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Notorious R.B.G.: The Life and Times of Ruth Bader Ginsburg

Book Review By Andrea M. Alonso

New York Law Journal - November 30, 2015

Synopsis: A review of the book by Irin Carmon and Shana Knizhnik

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Timing of Expert Disclosure Under CPLR 3101(d)

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – April 21, 2015

Synopsis: A review of relevant decisions leads to the conclusion that neither the First nor Second Department seems inclined to draw a "bright-line" rule on whether expert disclosure after the Note of Issue and Certificate of Readiness have been filed is considered untimely.

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Uber: Does New Ticket to Ride Carry Personal Risks?

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – March 4, 2015

Synopsis: A discussion of the insurance requirements, ride-sharing protocol, surge pricing and other issues that have emerged with the rise in new “ride-sharing” car services such as Uber.

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The Missing Witness Charge: A Powerful Tool for Trial

By Kevin G. Faley and Rebecca Rosedale

Defendant – Winter 2015 – Vol. 15 – No.2

Synopsis: The missing witness charge is an important tool at trial.  In New York, there are four preconditions that must be satisfied prior to a jury receiving this charge. 

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10 Timeless Rules for a Defense Practice

By Kevin G. Faley and Andrea Alonso

Defendant – Winter 2015 – Vol. 15 – No.2

Synopsis: Ten tips for the successful practice of insurance defense from John E. Morris, the founding partner of Morris Duffy Alonso & Faley.

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The Erosion of the 'One Bite' Rule

By Kevin G. Faley

NYSBA Torts, Insurance & Compensation Law Section Journal – Fall 2014 – Vol. 43 – No.1

Synopsis: The Court of Appeals has recently deviated from its long held common-law principles of liability and held that an owner of a domestic animal can be liable under ordinary negligence principals.

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Tort Liability When Bystanders Are in the ‘Zone of Danger’

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – August 27, 2014

Synopsis: In New York, the general rule is that bystanders cannot assert a claim for negligent infliction of emotional distress. However, New York recognizes an exception to this principle: the "zone of danger" rule, which is commonly associated with automobile accidents, but has been applied in cases involving house fires, assaults and elevator accidents.

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How to Respond to Politically Incorrect Comments in a Professional Setting

By Andrea M. Alonso

*Originally published in the DRI – The Voice of the Defense Bar- May 22, 2014

Synopsis: As attorneys, we will find ourselves in uncomfortable situations when clients make racist, sexist or politically inappropriate comments in our presence. How does an attorney respond? Typically these comments are made over the phone where the client has not met the attorney in person. Sometimes they are made in a face to face conversation where the client makes an incorrect assumption about the attorney's ethnicity, sexual orientation, religion or political views. Often times the person who uttered the incorrect and thoughtless remarks are crucial to the attorney's practice.

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Sun Glare and the Emergency Doctrine in Auto Cases

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – May 20, 2014

Synopsis: A discussion of the development of the emergency doctrine prior to the Court of Appeals holding in 'Lifson v. City of Syracuse,' the decision, and how courts are still applying the emergency charge in new and often unique situations.

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Dram Shop Update: Extent of Liability for Serving Liquor

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – March 13, 2014

Synopsis: Recently, courts in New York have been limiting the extent of personal liability for injuries that result from another's intoxication, but upholding stricter rules on the public taverns and commercial establishments that serve alcohol.

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Conversion in the Electronic Age

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – January 21, 2014

Synopsis: The American legal system has struggled in applying obsolete concepts to modern legal dilemmas. An example of this is conversion, a theory of recovery which, until recently, substantiated our society's reluctance to either adapt antiquated claims to the 21st century or discard these archaic concepts to the ash heap of history. While recently some jurisdictions have recognized conversion's applicability to intangible property, others have been hesitant to adopt that approach.

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Health Club Liability: Work Out The Law Before You Get Physical

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – December 11, 2013

Synopsis: A discussion of caselaw related to health clubs, gyms and other fitness centers, including the recent Court of Appeals holding on the use of automated external defibrillators, a health club's duty as a landowner, membership contracts and the assumption of risk doctrine.

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‘Kabir’ Update: ‘Worst Fears’ Realized Prompts Proposed Amendments

By Kevin G. Faley and Kenneth E. Pitcoff

New York Law Journal – September 4, 2013

Synopsis: In a post-'Kabir' world, emergency responders face a precedent that fosters perverse incentives. It encourages responders to violate the rules of the road in order to gain the higher burden of proof of reckless disregard, and denies the same protection to those who obey them. New bills aim to restore Vehicle and Traffic Law §1104's initial intent.

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Diversity at the Interview – How to Approach It

By Andrea M. Alonso

*Originally published in the DRI – The Voice of the Defense Bar– February 11, 2013

Synopsis: Diversity in American law firms is woefully inadequate. The Association for Legal Career Professionals reports at the associate level only 4.29% of all associates are African American with 2.61% being women. Numbers of Hispanic associates lag behind. Associates total 3.83% with women making up only 1.9%. The statistics are much worse for partners. African American partners only constitute 1.71% of partners with women representing .58%. Hispanic partners are 1.92% of the population with women only making up .48% of partners. Women and Minorities in Law Firms – By Race and Ethnicity, NALP BULLETIN (Jan. 2012), available at http://www.nalp.org/race_ethn_jan2010.

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Municipal Liability for Property Damage Cause by Flooding

By Andrea M. Alonso and Carl S. Sandel

New York Law Journal – September 24, 2012

Synopsis: The aftermath of Hurricane Irene in 2011 has given rise to a substantial increase in the number of lawsuits seeking to hold municipalities liable for property damage caused by flooding.

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‘Kabir’ and Its Progeny: A Reckless Disregard for Common Sense

By Kevin G. Faley and Kenneth E. Pitcoff

New York Law Journal – August 1, 2012

Synopsis: It appears as if the 'Kabir' decision has changed emergency vehicle litigation by encouraging emergency responders to act with the type of reckless disregard that the statute once used as a shield from liability for their municipal employers.

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Pattern Jury Instructions and Premises Liability

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – June 11, 2012

Synopsis: Given the breadth of scenarios covered by the PJI, there is likely to be a relevant charge in most premises liability cases.

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Car vs. Bike: Rules of the Road

By Kevin G. Faley and Kenneth E. Pitcoff

New York Law Journal – December 13, 2011

Synopsis: In any personal injury action, knowledge of applicable statutes and case law is crucial to competent handling of the matter. As more individuals look for ways to economize, bicycles are becoming a more popular mode of transportation. Bicyclists are subject to most of the same duties as motor vehicles, as well as many other statutory requirements, which could result in a jury charge of negligence per se against a cyclist.

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Court of Appeals Holds That Conditions Involving Snow or Ice Need Not Be Immediately Created in Order to Hold a Municipality Liable Under the Affirmative Creation Exception to the Prior Written Notice Rule

By Kevin G. Faley and Kenneth E. Pitcoff

NYSBA Torts, Insurance & Compensation Law Section Journal – Winter 2011 – Vol. 40 – No.2

Synopsis: An analysis of the ruling in San Marco v. Village of Mount Kisco, which addressed the exceptions through which a municipality can be held liable for injuries stemming from an allegedly dangerous and/or defective street or sidewalk condition.

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Groninger v. Village of Mamaroneck: Prior Written Notice Laws Are Applicable to Municipal Parking Lots

By Kenneth E. Pitcoff and Anna J. Ervolina

NYSBA Torts, Insurance & Compensation Law Section Journal – Winter 2011 – Vol. 40 – No.2

Synopsis: A discussion of the significant win for every municipality in New York State with Groninger v. Village of Mamaroneck. The Court of Appeals held that municipalities are entitled to prior written notice of defects located within municipally owned parking lots.

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Spoliation of Evidence: Considerations and Remedies

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – July 25, 2011

Synopsis: The courts consider a broad range of factors in deciding when and what spoliation remedies are appropriate, and at the very least, there must be a duty to preserve evidence in order to sustain a spoliation claim and the court will then ask if the evidence is essential to the case and whether either party is prejudiced without it.

 

Failure to Provide Police Protection and Special Relationship Exception

By Kevin G. Faley and Kenneth E. Pitcoff

New York Law Journal – April 8, 2011

Synopsis: The special relationship exception is a narrow one and the New York courts require a plaintiff to prove four elements to determine whether or not such relationship exists between the police and the injured person, the last of which, justifiable reliance on the municipality's affirmative undertaking to act on behalf of the injured party, has been the most difficult for a plaintiff to prove.

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Pattern Jury Instructions and Automobile Accidents

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – December 27, 2010

Synopsis: Given the breadth of scenarios covered by the PJI, there is likely to be a relevant charge in most automobile accident cases.

 

 

State High Court Tweaks Additional Insurance Coverage

By Kevin G. Faley

New York Law Journal – September 7, 2010

Synopsis: A refresher on the Court of Appeals position on what triggers additional insurance coverage.

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Motorcycle Litigation: No Easy Ride

By Kevin G. Faley and Kenneth E. Pitcoff

New York Law Journal – September 3, 2010

Synopsis: A review of motorcycle law, including insurance coverage, traffic regulations, passenger rules, limited use motorcycle classifications and other statutes that may come into play in a personal injury action.

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Classifying and Expanding Protected Activities Under Labor Law 240(1)

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – June 9, 2010

Synopsis: No court has developed a set formula to ascertain whether or not an activity is protected under the Labor Law. The consensus both from the Court of Appeals and the Appellate Divisions, they say, is that inspections are not protected if merely incidental to a protected activity.

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The Gravity of the Labor Law

 By Kevin G. Faley

 New York Law Journal – February 22, 2010

Synopsis: Over the years, the Court of Appeals and the appellate divisions have dealt with thousands of claims invoking the protection of Labor Law §240(1). As the courts examine these very fact-driven cases against the backdrop of this well-worn statute, they have created not a bright line rule on what is or is not a 240(1) claim, but rather a line of varying shades of gray. 

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Recovering Damages for Death: Two Separate Causes of Action

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – February 1, 2010

Synopsis: Death cases in New York are frequently not evaluated properly by claims representatives and attorneys alike.

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New York City Traffic Regulations As ‘Some Evidence’ of Negligence

 By Andrea M. Alonso and Kevin G. Faley

 New York Law Journal – December 2, 2009

 Synopsis: The New York City Traffic Regulations run the gamut from basic prohibitions ("No person shall operate a vehicle in a manner that will endanger any person or property;" "No person shall sound the horn of a vehicle except when necessary to warn a person or animal of danger") to the enumeration of the 30-plus holidays on which street cleaning rules are suspended. It is important, they advise, that the practitioner in any automobile case scour the regulations to obtain a jury charge in her client's favor.

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Tightening the Labor Law: Falling Objects and §240(1)

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – October 1, 2009

 Synopsis: While courts are certainly protective of a worker's rights under the Labor Law, they have simultaneously recognized that owners and contractors are not insurers and cannot be held responsible for each and every injury suffered at a work site. The courts have resolved these two views, they say, by limiting the application of this safe workplace statute to only those hazards specifically contemplated by the statute and also by questioning the somewhat sacrosanct belief that workers cannot protect themselves from work-site dangers. 

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Broadening of the Recalcitrant Worker Defense in Labor Law Actions

By Andrea M. Alonso and Kevin G. Faley

 New York Law Journal –  July 24, 2009

 Synopsis: The recalcitrant worker defense, one of the few defenses available to owners and general contractors when a worker has been injured in a gravity-related accident. In the past, this affirmative defense required a defendant to prove that the injured worker refused to use an available safety device after being specifically and immediately instructed to do so and that this refusal proximately caused the accident. In a recent line of cases, however, courts across New York State have begun to broaden the applicability of this defense, holding workers responsible, at least to a certain extent, for their own safety.

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 Wage Recovery for Illegal Aliens in New York Under the Labor Law

 By Andrea M. Alonso and Kevin G. Faley

 New York Law Journal – May 26, 2009

 Synopsis: While the Federal Immigration Reform and Control Act was intended to curtail illegal immigration and the employment of illegal aliens, it remained undecided whether it should preempt the Labor Law and, ultimately, bar an illegal alien from receiving lost wages for injuries sustained on the job. With the question of illegal immigration unresolved on the national scale, the New York courts appear to have carved out their own rule.

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Insurance Policy Exclusions and Construction Projects

By Kevin G. Faley and Anna J. Ervolina 

New York Law Journal – September 30, 2008

Synopsis: An insurance company's decision to deny coverage to its insured is not generally favored by the courts. However two recent decisions from the Second Department signify a change in the willingness to validate an denial of coverage. In each case, the insurance company successfully enforced a carefully worded exclusion contained in its policy which left contractors without insurance for a construction accident.

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CPLR §1601: Limiting Liability Against Public Entities?

By Kevin G. Faley and Kenneth E. Pitcoff

 New York Law Journal – March 24, 2008

Synopsis: several bills are currently before the New York State Assembly that propose enlarging the benefits of CPLR Article 16 as it relates to public entities.  Essentially, the statute holds a defendant responsible only for its actual share of damages if its degree of culpability was found by the jury to be 50 percent or less.

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New Definition of ‘Creation Exception’ to Pothole Law

By Andrea M. Alonso and Kenneth Pitcoff

New York Law Journal – March 6, 2007

Synopsis: The  First and Second departments have recently narrowed the "creation exemption" to the Prior Written Notice Statute as it applies to roadwork to require proof that the alleged negligent prior repair immediately resulted in the existence of a dangerous condition.

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Marked Ready for Trial: An Insurance Professional’s Guide to Pre-Trial Preparation

By Andrea M. Alonso and Kevin G. Faley

Claims – November 2006

Synopsis: The process is described from the moment a company learns of a potential lawsuit and continues through discovery and the actual trial.

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Proposed Amendments to the Recreational Use Statute

By Kevin G. Faley and Kenneth E. Pitcoff

New York Law Journal – September 25, 2006

Synopsis: Approximately 85 percent of New York State is privately owned. Many outdoor recreationalists rely on the magnanimity of private landowners to meet their need for land use. Landowners are more likely to welcome these individuals onto their land if they are confident that they are protected from liability.

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Insurance Coverage Issues Involving Pocket Bikes

By Kevin G. Faley and Pauline E. Glaser

The Journal of the Defense Association of New York – Fall 2005/Winter 2006

Synopsis: The article discusses the complex insurance coverage implications of pocket bikes.

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The Effect of Spousal Immunity on Car Insurance Coverage

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – October 27, 2005

Synopsis: A review of Insurance Law §3420(g), which protects insurance carriers from collusive spousal actions by holding that they are generally not obligated to defend or indemnify an insured from claims because of injuries to the spouse, a policy that has caused confusion in the courts and amongst automobile insurance holders.

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Security Guard Liability

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – August 5, 2005

Synopsis: Potential liability arises for assault and battery, which may occur during the course of attempting to stop or arrest a suspected shoplifter, and for subsequent false-imprisonment claims by the detainee. Liability, in exceptional circumstances, may also arise from the failure of a security guard to protect patrons.

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The Erosion of the “Integral and Necessary” Standard Under the Labor Law

By Kevin G. Faley and Andrea M. Alonso

The Defendant – Spring 2005

Synopsis: The article discusses how the “integral and necessary” test has diminished as a result of resent case law.

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Liability Exemptions for Emergency Vehicles

By Andrea M. Alonso and Kenneth E. Pitcoff

New York Law Journal – May 3, 2005

Synopsis: The reasonableness of the operator of an emergency vehicle's conduct must be gauged at the time and under the circumstances in which he acted, not in retrospect.

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Commercial Owner’s Liability for Assaults Between Patrons

 By Kevin G. Faley and Richard J. Gallo

New York Law Journal – March 17, 2005

Synopsis: Contrary to the pervasive belief in the underwriting community, it is actually difficult to hold owners of public establishments liable for unanticipated assaults among patrons that occur on their premises. The liability for such incidents is quite circumscribed in New York.

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Postscript: Head Injuries, Workers’ Compensation Law After ‘Rubeis’

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – January 27, 2005

Synopsis: The Court of Appeals has adopted the "employability" standard rather than the "self-care" standard and defined permanent total disability as being "when the evidence establishes that the injured worker is no longer employable in any capacity."

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“Close Those Files or Else!” The Need for Case Resolution Planning

By Kevin G. Faley and Andrea M. Alonso

The Brief – Spring 2005

Synopsis: The pressures of closing case files can be problematic for claims attorneys. The need for an understanding partnership between the defense attorney and the insurance company is imperative to develop a precise method to effectively close case files.

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Head Injuries and Worker’s’ Compensation Law

By Andrea M. Alonso and Kevin G. Faley

New York Law Journal – September 24, 2004

Synopsis: The employer funding of New York's Workers' Compensation system was intended to limit recovery for an injured employee to Workers' Compensation benefits. But the purpose of the system is sometimes evaded through impleader actions wherein employers were sued as third-party defendants.

 

 

The Changing Insurance Defense Climate: Law Firm Survival

By Andrea M. Alonso and Kevin G. Faley

For the Defense – August 2000

Synopsis: The changes in the insurance defense industry require firm to adjust and evolve  to maintain a successful business structure.

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A Claims Professional’s Bill of Rights

By Andrea M. Alonso and Kevin G. Faley

Claims – November 1999

Synopsis: A discussion of the change in the relationship with insurance companies and outside counsel. The basic services that outside counsel should provide to claims professionals on any property or casualty claim are highlighted.

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Interviewing for a Job at an Insurance Defense Firm

By Andrea M. Alonso and Kevin G. Faley

For the Defense – January 1999

Synopsis: A guideline for interviewing at insurance defense firms. Items such as preparation for the interview, dress code, the interview discussion and the close of the interview are addressed.

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Proximate Cause of Negligent Security Cases: The Predicted Effects of Burgos and Gomez

By Michael B. Titowsky

Torts, Insurance & Compensation Law Journal – Spring 1999

Synopsis: A discussion of two Court of Appeals cases involving landlord-tenant security measures and injuries.

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There are No Bad Dogs: Recent Ruling in Dog Bite Cases

By Kevin G. Faley, Andrea M. Alonso, and Pamela A. Smith

Defendant – Spring 1999

Synopsis: The state of law regarding dog bite cases in New York is analyzed. Case law evolution in the state is presented and the various intricacies of laws in place to address the actions.

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Outside Counsel: Applying the 1996 Three-Year Limit in Professional Malpractice Case

By Kevin G. Faley and Andrea M. Alonso

New York Law Journal – February 22, 1999

Synopsis: The New York State Legislature amended the CPLR Section 214(6) effective September 4, 1996 to repeal the rule enunciated by the Court of Appeals in Santulli v. Englert, Reilly & McHugh, P.C. that the statute of limitations to be applied in actions for professional malpractice (other than medical, dental or podiatric) is not solely the three year negligence limitation.

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An Offer You Can’t Refuse – A Proposal for a New State Offer of Judgment Rule

By Andrea M. Alonso and Kevin G. Faley

New York State Bar Journal – March/April 1998

Synopsis: A comparison of New York and Florida state statutes involving offer of judgment procedures. The New York Offer of Judgment Rule’s effect on settlements and frivolous litigations is also discussed.

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The Law Firm Culture of Abuse

By Andrea M. Alonso and Kevin G. Faley

ABA Journal – March 27, 1998

Synopsis: Trends in the legal field involving senior supervising attorneys belittling young associates are discussed. The law firm culture of abuse is a problem that must be eliminated to decrease the number of young attorneys who change jobs early in their careers.

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High Low Agreements: Misunderstood Litigation Technique

By Kevin G. Faley and Andre M. Alonso

New York Law Journal – March 27, 1998

Synopsis: The litigation technique of high-low agreements is underutilized and misunderstood during the trial of tort cases. Benefits of the strategy for both sides of the litigation are

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