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Closing Cases Through Intercompany Arbitration
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal - October 26, 2022
Synopsis: Settling underlying claims and resolving disputed liability or coverage disputes through the Special Arbitration Forums is enormously beneficial to member companies. It reduces litigation costs, including attorneys’ fees, through faster closings. The Special Arbitration Forums may be utilized by adjusters without attorneys. It is simple and easy to use. In this age of nuclear verdicts, severity is reduced by capping exposure through intercompany arbitration.
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Qualified Immunity: Hazard Vehicles Working on a Highway
By Kenneth E. Pitcoff and Kevin G. Faley
New York Law Journal - September 30, 2022
Synopsis: In order for the reckless disregard standard to apply under the VTL §1103 exemption, defendants must be “actually engaged in work on a highway.” Historically courts have interpreted the standard of reckless disregard broadly. When a hazard vehicle is traveling “to or from” work sites, the VTL §1103 exemption does not apply. Additionally, courts have also broadly interpreted what constitutes a “highway” pursuant to the language of the VTL §1103. Recent cases have expanded the limits of what is a hazard vehicle to sanitary vehicles and garbage trucks. This qualified immunity is a powerful tool in the defense of municipalities.
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"Emergency Operations" Under VTL § 1104
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal - September 23, 2022
Synopsis: The VTL regulates the operation of vehicles on public highways in the State. A driver whose violation of the VTL causes injury is subject to a basic negligence standard at trial. The driver of an authorized emergency vehicle may instead be held to a recklessness standard, a higher bar for a plaintiff to reach. In order for the driver of an authorized emergency vehicle to be subject to this standard, two requirements must be met. First, the driver must have been acting in one of the manners prescribed by VTL § 1104(b). Second, the driver must have been engaged in an “emergency operation.” The term “emergency operation” is defined in VTL § 114 – b and case law contains broad interpretations in favor of municipalities.
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Proposed Grieving Families Statute Could Have Enormous Impact
By Kevin G. Faley and Andrea M. Alonso
New York Law Journal - September 6, 2022
Synopsis: Senate Bill S74A, titled “The Grieving Families Act”, seeks to vastly expand the potential damages available to surviving families in a wrongful death action. It has been passed by the legislature and awaits Governor Hochul’s signature. The proposed statute includes compensation for the following damages: “(iii) grief or anguish caused by the decedent's death, and for any disorder (emphasis added) caused by such grief or anguish; and (iv) loss of love, society, protection, comfort, companionship” The Grieving Families Act, S74A§2(a)(iii-iv). These damages are not presently compensable. Additionally, the proposed statute would extend the current wrongful death statute of limitations from two years to three years and 6 months following the death of the decedent. The Grieving Families Act, S74A§1. Finally, the law, as presently constituted, will take effect immediately upon signing and will apply to all pending and future actions.
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The Key in Ignition Rule: Leaving Your Car Unattended Under VTL § 1210(a)
By Kevin G. Faley and Andrea M. Alonso
New York Law Journal - August 4, 2022
Synopsis: VTL § 1210(a) requires vehicle owners to do four things before leaving their car unattended: stop the engine, lock the ignition, remove the key from the vehicle, and set the brake. This does not require the removal of keys that are in the car for convenience or safety. The vehicle owner need only ensure that the key is hidden from plain sight such that a person could not easily spot it while passing by. If these precautions are not taken, the vehicle owner could be found liable for damages caused by the driver while operating the stolen vehicle under VTL § 388.
This provision applies upon public highways, private roads open to public motor vehicle traffic, and any other parking lot. It is not applicable to one’s private property, such as a homeowner’s driveway or a company’s private parking lot. Common sense tells us that it is advisable to remove keys and key fobs whenever a vehicle is left unattended, but since common sense is not so common, we have these cases to discuss.
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Shifting Gears: Updating New York VTL §388 and Restoring Protection for Vehicle Owners
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal - July 21, 2022
Synopsis: VTL §388 holds vehicle owners accountable and ensures that victims of accidents involving a vehicle owned by a person but driven by a non-owner could seek financial redress for their injuries. Recent applications of VTL §388 by New York Courts have protected owners from liability where their vehicles are clearly used without their consent.
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Alternative Vehicles: What Is Legal And What Is Not?
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal - July 7, 2022
Synopsis: Alternative vehicle use is rapidly increasing in the City. A violation of a State statute constitutes negligence per se, while a violation of a City rule is only “some evidence of negligence.” Thorough review of the New York State Vehicle and Traffic Law and the Rules and Administrative Code of the City of New York is imperative in representing a plaintiff or a defendant in cases involving alternative vehicles.
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Sidewalk Update: New York City Administrative Code § 7-210
By Kevin G. Faley and Andrea M. Alonso
New York Law Journal - March 15, 2022
Synopsis: This article takes look at several cases which address the issue of liability for sidewalk maintenance.
The authors conclude that “the purpose underlying the enactment of the exemption in New York
City Administrative Code §7-210 is to promote the safety of pedestrians making use of public
walkways. Imposing a duty upon owners of real property to maintain the sidewalk abutting their
property incentivizes the maintenance of sidewalks and creates safer walkways for pedestrians.”
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Premeditated Criminal Acts and Landowner Liability
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal - September 17, 2021
Synopsis: There has been a recent split between the First and Second Department as to treatment of landowner liability for the premeditated criminal acts of other parties. While the First Department has reiterated the spontaneity standard, whereas the Second Department found that a landowner’s negligence could be a concurrent factor in even premeditated crimes. This split will likely be addressed before the Court of Appeals in the near future.
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Security Guard Liability in New York
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal - September 3, 2021
Synopsis: Security guards and companies are particularly vulnerable to liability due to the nature of their work. However, New York law imposes a significant bar to liability except where the security personnel assume a duty, act outside of the scope of their security work, or were negligently hired or trained.
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“Serious Injury” Update
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal - August 30, 2021
Synopsis: Cases recently decided by the Appellate Division have indicated a shift toward reducing the scope of what is considered a serious injury pursuant to New York Insurance Law § 5102(d). Such decisions have generally more closely adhered to the letter and legislative intent of the law, finding a lack of serious injury where evidence failed to clearly demonstrate the existence of such injury under the law.
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Residential Landowner’s Liability for Third Party Criminal Acts
By Kevin G. Faley and Andrea M. Alonso
New York Law Journal - August 21, 2021
Synopsis: A landowner is required to take minimal precautions to protect guests and residents on its premises from criminal conduct, particularly where there is evidence of significant similar criminal acts occurring within a reasonable proximity. However, precedent holds that a landowner will not be held liable for the premeditated criminal acts of third parties.
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Understanding New York’s “Zone of Danger” Rule in Non-Automobile Situations
By Kevin G. Faley and Andrea M. Alonso
New York Law Journal - August 11, 2021
Synopsis: While often applied to automobile accidents, New York’s “Zone of Danger” theory related to actions for emotional distress has broader applications. The court’s highly fact-specific and narrow precedent, however, make it a difficult burden for a plaintiff to meet.
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Second Dept. Takes Charge: The Burden of Excluding Third-Party Observers
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal - February 26, 2021
Synopsis: Eliminating ambiguity created in the First and Fourth Departments, the Second Department places the burden squarely on defendants for the exclusion of ‘IME Watchdogs.’
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‘Greene’: Court of Appeals Narrowly Expands Recovery for Emotional Harm
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal - February 23, 2021
Synopsis: The ‘Greene’ decision is extraordinary in its narrow application. It results in the addition of grandparents to the “definition of immediate family” who may recover if they are in the zone of danger and witness the unspeakable horror of having a grandchild die before their eyes.
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Dram Shop Act: Boats, Motorcycles, ATVs, and Snowmobiles
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal – February 3, 2021
Synopsis: New York’s Dram Shop Act makes it illegal for commercial vendors to serve alcohol to persons, who are “visibly intoxicated” or under the age of 21. The majority of cases arise when an intoxicated patron leaves the establishment in a car and causes an accident. Liability is not limited, however, to accidents involving cars but has been extended to include boats, motorcycles, ATVs, and snowmobiles.
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NY Labor Law §240: What Is a ‘Structure’?
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – November 17, 2020
Synopsis: Labor Law §240 was enacted in response to the Legislature’s concern over unsafe conditions for employees who worked at height-related worksites. When assessing §240 claims in New York, parties should be aware that courts interpret the word “structure” liberally and that the word itself can manifest in a multitude of ways. This article highlights some surprising examples.
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The Virtual Jury Trial: Concerns and Considerations in Conducting Remote Trials
By Kevin G. Faley and Robert S. Whitbeck
Newsletter of the Federation of Defense and Corporation Counsel - November 6, 2020
Synopsis: While the concept of a virtual jury trial in the pre-pandemic world seemed like an extremely unlikely concept, the idea is now one attorneys may need to consider. Trying cases through this virtual medium would require attorneys to re-shape many of the very tenets of trial practice.
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Snow and Ice Cases: Storm in Progress Doctrine
By Kevin G. Faley and Andrea M. Alonso
The Journal of the Defense Association of New York
– November 2020
Synopsis: A review of the storm in progress doctrine and its applicability to premises liability cases
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The Dram Shop Act: An Update
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – October 24, 2020
Synopsis: Dram Shop liability arises out of a vendor’s duty to the public not to sell liquor to visibly intoxicated people, so while legislation seeks to shift some responsibility to alcohol providers, violations are often difficult to prove.
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Damages for Wrongful Death and Survivorship: Two Distinct Causes of Action
By Kevin G. Faley and Andrea M. Alonso
New York Law Journal – September 15, 2020
Synopsis: To recover damages for a person’s death in New York State, there are two distinct causes of action: survivorship and wrongful death. Attorneys must be familiar with what is and is not recoverable under each.
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A Closer Look at Qualified Immunity
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal – July 23, 2020
Synopsis: Following the murder of George Floyd, nationwide protests erupted, demanding the elimination of the qualified immunity doctrine. Although new legislation has been introduced to end the qualified immunity doctrine, legislatures should proceed with caution before eradicating the immunity.
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Going Where Experts Can’t: Viability and Admissibility Issues For Firms and Experts Relying Upon Drone-Obtained Evidence
By Kevin G. Faley and Robert S. Whitbeck
Newsletter of the Federation of Defense and Corporation Counsel – March 2020
Synopsis: Drone use in the context of legal investigations and evidence collection must be considered as this technology becomes more prevalent. The practicality, legality, and admissibility of this type of evidence pose questions which have largely not yet been addressed by the courts.
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Interest and Excess Verdicts
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – January 23, 2020
Synopsis: The question of when interest begins to run in a case where the jury has rendered a verdict in excess of the available policies of insurance is a complicated one.
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Offer of Judgment: An Underutilized Tool in Federal Cases
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal – December 23, 2019
Synopsis: An offer of judgment is used to encourage settlements and protect parties willing to settle early in the litigation process. It is an extremely useful tool however there are important nuances to using this strategy successfully.
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A Jury Verdict” Now What?”
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – December 13, 2019
Synopsis: There are numerous post-trial motions that one can utilize under the CPLR when faced with an unfavorable verdict.
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‘High -Low’ Settlements: Insurance Against Bad Faith Claims
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – November 21, 2019
Synopsis: In this new era of personal injury “nuclear verdicts” that far exceed policy limits, insurance companies are searching for protection. The underutilized offer of a “high-low” agreement provides that protection.
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“Rosa”: ‘Causally Related’ Is Insufficient To Establish Serious injury
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal – October 24, 2019
Synopsis: The rule of 'Rosa' and its progeny as interpreted by the trial courts is that mere medical pronouncement that injuries are causally related to the accident is not enough to create an issue of fact to defeat summary judgment.
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NY Court of Appeals Continues to Expand Prior Written Notice Protections for Municipalities
By Kenneth E. Pitcoff and Kevin G. Faley
New York Law Journal – June 10, 2019
Synopsis: The high court continues to expand coverage of N.Y. Gen. Mun. Law §50-e(4), and give protection to municipal entities throughout the state.
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Back to the Future” Stunning Reversal in IME “Watchdogs” Case Leaves Obscurity in Discovery Demands
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – May 10, 2019
Synopsis: While the First Department has attempted to bring clarity to the issue by rendering its decision, the Second Department has yet to deliver a decision on the issue.
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Is PTSD a 'Serious Injury' Under Insurance Law §5102(d)?
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal – April 8, 2019
Synopsis: The Third and Fourth Departments have begun to consider post-traumatic stress disorder (PTSD) as a ‘serious injury’ under Insurance Law §5102(d)’s definition of “significant limitation of use of a body function or system.” Currently, the First and Second Departments have not followed suit.
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False Arrest/False Imprisonment and Late Notice of Claims
By Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal – November 29, 2018
Synopsis: The factors to be considered in determining whether to grant leave to file a late notice of claim for false arrest and false imprisonment claims.
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The Intersect of Bankruptcy and Personal Injury
By Kevin G. Faley and Andrea M. Alonso
New York Law Journal – November 21, 2018
Synopsis: The effect of failing to disclose a personal injury claim as an asset in a bankruptcy proceeding.
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The Application of Labor Law §240(1) to Accidents Involving Ramps
By Kevin G. Faley and Lina C. Rossillo
The Journal of the Defense Association of New York – Winter 2018
Synopsis: are falls from ramps afforded protections under Labor Law § 240(1)?
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Calculating Loss of Future Earnings
By Kevin G. Faley and Lina C. Rossillo
New York Law Journal – December 27, 2017
Synopsis: A review of the factors that are considered in calculating future loss of earnings.
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Crisis Handling in Municipal Cases
By Andrea Alonso and Kenneth Pitcoff
New York Law Journal – November 28, 2017
Synopsis: A review of methods a municipal entity should employ in order to handle high profile crises that may result in litigation.
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The Role of Patient Advocates at an Independent Medical Examination
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – October 27, 2017
Synopsis: A review of the role of a patient advocate at an independent medical examination and the difference in approach of the First Department and Second Department in determining whether an patient advocate should be present.
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Update on ‘Serious Injury’
By Andrea M. Alonso and Kenneth E. Pitcoff
New York Law Journal – October 2, 2017
Synopsis: A review of ‘serious injury’ and the need for contemporaneous medical reports as proof of causation.
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Capacity of Infants to Testify
By Andrea M. Alonso and Kevin G. Faley,
New York Law Journal – September 7, 2017
Synopsis: A review of the method of determining an infant’s capacity to testify.
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Consent, I Presume? VTL § 388 and Permissive Use
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – August 8, 2017
Synopsis: An analysis of the high burden that must be met to rebut the presumption of consent established by VTL § 388
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Settlement Techniques High-Low Agreements
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – July 26, 2017
Synopsis: A discussion of high-low agreements and the benefits of its use to plaintiffs and defendants.
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The ‘Creation Exception’ to the Pothole Law: Difficult to Prove
By Andrea M. Alonso and Kevin G. Faley
New York Law Journal – June 13, 2017
Synopsis: A review of the immediate creation exception as a means of circumventing the prior written notice requirement.
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The Elevation of the Expert
By: Andrea M. Alonso and Kevin G. Faley
New York Law Journal – May 25, 2017
Synopsis: The use of expert opinions to determine the adequacy of safety devices under Labor Law §240(1).
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Proprietary Capacity and Substantial Prejudice in Municipal Liability Cases
By: Kenneth E. Pitcoff and Andrea M. Alonso
New York Law Journal – April 14, 2017
Synopsis: An analysis of two significant Court of Appeals cases in the area of Municipal Law
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Traumatic Brain Injury as a 'Grave Injury': An Examination of 'Rubeis' and Its Progeny
By: Kevin G. Faley and Christopher R. Invidiata
New York Law Journal – March 31, 2017
Synopsis: A discussion of the grave injury threshold of the Worker’s Compensation Law and traumatic brain injury.
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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 & Pitcoff.
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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.
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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.
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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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