New York

Matter of New York City Asbestos Litigation, 32 N.Y. 3d 1116 (2018).

Expert Testimony Nixed

The Court of Appeals for New York affirmed that a plaintiff needs to provide a quantification of exposure to prove linkage of asbestos causing products to mesothelioma. In the case a Ford factory worker commenced a personal injury action due to his mesothelioma allegedly caused by claimed exposure to asbestos containing products while he worked as an auto mechanic. The court recognized that although the plaintiff proved his mesothelioma was caused by exposure to asbestos, he did not present sufficient evidence that levels of the toxin from his work on breaks, clutches, or gaskets sold or distributed by Ford, caused his illness. In the case plaintiff’s expert failed to quantify the plaintiff’s exposure levels, or provide a scientific expression of his exposure level with respect to Ford’s products. In a concurring opinion the court stated it is not enough to establish exposures to visible dust which contained an unknown amount of chrysotile asbestos fibers, based principally on the scientifically settled general association between asbestos exposure and mesothelioma without evidence of general or specific causation. 

Shafer, Glazer and Mooney Selected

NY Super Lawyers

Howard S. Shafer, David A. Glazer and Ms. Mika M. Mooney of Shafer Glazer have been selected to the 2019 New York Super Lawyers list. No more than five percent of the lawyers in New York are selected by Super Lawyers. Shafer and Glazer were selected for Personal Injury Defense: General. Ms. Mooney was selected for Employment Litigation: Defense. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

New Jersey

CMS Investment Ventures Inc. et al. v. American European Insurance Co. et al., A-2056-17T3.

Assault and Battery Exclusion Fails

In late May, a New Jersey Appellate Division court affirmed a lower court decision appealed by defendants American European Insurance Company (AEIC). The case involved plaintiffs who owned an apartment building in Irvington, NJ. One of the tenants in the building resided in a ground-floor apartment unit with a window that failed to lock properly. The owners (CMS) allegedly failed to repair the window unit. On March of 2013, this tenant was the victim of a home invasion. She then asserted a premises liability claim against CMS for failing to adequately maintain the property and keep the premises safe. CMS had a commercial general liability policy with AEIC that contained a clause precluding coverage for instances of assault and battery. AEIC then invoked this clause to deny coverage of the claim made by CMS and the tenant. CMS alleged that the assault and battery exclusion in the policy did not apply to the claim.

The court ultimately found that the assault and battery exclusion clause did not exclude coverage in this instance. The court looked to the plain language of the contract and found that because the policy said "any claim, demand, or suit based on Assault and Battery" rather than what has been considered broader language of "arising out of," the insurer could not deny coverage of the claim. The court reasoned that because an assault and battery was not the cause of the injury and the tenant's claim sounded in negligence, not an intentional tort, the insurer had a contractual obligation to cover the claim. Moreover, because AEIC waited 24 months to disclaim coverage and closed the file without investigating the claim, AEIC acted unreasonably and was obligated to cover the insured. 

New York

William Heeran et al v. Long Island Power Authority et al., Case No. 702558-2013.

Duty To De-Energize Power Lines



In early April, a Queens County Supreme Court denied a motion for summary judgment made by defendants Long Island Power Authority (LIPA) and National Grid PLC (NG). The case involved a number of plaintiffs who owned real and personal property on the Rockaway Peninsula. The plaintiff's alleged that LIPA and NG were negligent in leaving electrical transmission lines energized during Superstorm Sandy and that as a result of the electrical lines coming into contact with floodwaters, fires were started that destroyed the premises owned and/or occupied by the plaintiffs. The defendants responded that they did not have a duty to pre-emptively de-energize the electrical grid prior to the storm and that the failure to de-energize the grid was not the proximate cause of the injury to most of the plaintiffs based on a case from 1886 entitled Ryan v. New York Cent. R. Co. (35 NY 210).

These arguments were unconvincing to Judge Bernice D. Siegal. She found that defendants had a duty because they were in exclusive control of the power lines and that the potential disadvantages to de-energizing the power grid did not outweigh the necessity of doing so prior to an adverse weather event. She also rested her conclusion on the fact that the dangers of flood waters coming into contact with live electrical power were well known in the utility industry. She was also unconvinced by the so-called " Ryan Rule" calling it "a relic of 1886 and should not be followed here." Though the court acknowledged its obligation to follow precedent, it stated "a lower court need not follow case law which is plainly outdated."

New Jersey

Kuzian v. Tomaszewski, 457 N.J. Super. 458 (2018).

Don't Say Totaled



Last July, a New Jersey Superior Court addressed an issue of first impression with regard to automobile negligence actions. The case involved a plaintiff who allegedly suffered personal injuries as a result of a motor vehicle accident caused by the defendant. During the direct examination of the plaintiff at trial, plaintiff's counsel inquired as to whether plaintiff's vehicle was "totaled" as a result of the accident that was the subject of litigation. Defendant's counsel objected on the grounds that the question was improper and could mislead the jury regarding the extent of the actual damage of the vehicle if the statement is not supplemented with more information. The court ultimately sustained the objection based on the fact that it was irrelevant to the proceedings.

The court explained its reasoning by distinguishing the current case from the Brenman case. That case permitted photographs to be shown to the jury of a totaled car, but did not explicitly permit using the term in direct examination. The court also reasoned that the colloquial use of the term "totaled" was drastically different that the meaning of the term in the insurance industry to refer to a damaged car that has a cost of repair greater than the cost of replacement. Due in part to the differences between the colloquial meaning and the term's meaning within the industry, the court determined that using the term was it was misleading and irrelevant.

Shafer Glazer LLP's Recent Case

Transportation - Summary Judgment Granted



Plaintiff claimed to have been injured while riding in an Access-Ride-Vehicle and sued the program provider in addition to the vehicle owner and operator. Plaintiff brought suit in Bronx County and alleged cervical and lumbar spine injuries. Shafer Glazer's Delsia G. Marshall moved for summary judgment prior to the close of discovery, arguing on behalf of the program provider that they did not own, operate or maintain the vehicle. The court granted the motion and dismissed the action.

Shafer Glazer LLP's Recent Case

Transportation - Defense Verdict



Plaintiff alleged that while crossing outside of the crosswalk, she was hit in the head by the side view mirror of a bus. Plaintiff alleged that the bus had a duty to avoid contact with a pedestrian even though the contact occurred outside of the crosswalk. Defendant asserted that it had the right of way, that it drove in a normal manner and that the plaintiff failed to protect herself by either keeping an eye out for the bus or hustling across the 4 lane road when she jaywalked. Plaintiff claimed a Traumatic Brain Injury with permanent cognitive deficits and post- traumatic depression. After a 2 ½ week trial, a jury of 4 women and 2 men returned a defense verdict, finding that the Shafer Glazer client was not negligent. A motion to set aside the verdict was denied. The case was tried by Shafer Glazer's David A. Glazer.

Upcoming Events

November 4th-7th

Shafer Glazer will be in London presenting with other Your House Counsel firms on topics including: Drones, Autonomous Vehicles, Cannabis, Bad Faith, Reservation of Rights and the Produce Liability Malfunction Theory.

November 13th - 15th Property & Liability Resource Bureau's (PLRB) Large Loss Conference

Shafer Glazer's Howard Shafer will speak at the PLRB's Annual Large Loss Conference in Jacksonville, Florida. The PLRB is an organization that sponsors events to bring together professionals in the property and liabillity insurance industry. The topic is Apportioning Fault When Negligent Construction Causes Adjacent Property Failure.

December 4th

Shafer Glazer's Nicole Snyder and Howard Shafer will present Recent Developments in Autonomous Vehicles as a lunch and learn for one of our clients. If you would like an on premises presentation, please contact us.

Shafer Glazer LLP's Recent Case

Motion to Sever Delivers Favorable Result



Plaintiff alleged to have been injured by falling debris, ice or snow from a building. Plaintiff claimed significant injuries including torn rotator cuff with surgery, Traumatic Brain Injury, TMJ and possible seizures. A substantial lost earnings claim was alleged. Shafer Glazer's client was joined late in the case and it was claimed that they should have patrolled the exterior of the building and warned the plaintiff of the falling ice condition. In lieu of an answer, Shafer Glazer's Nicole Snyder moved to sever the third party action, which was granted. That placed the Shafer Glazer client in an advantageous negotiating position, compelling the remaining parties to settle the action with a nominal contribution by the Shafer Glazer client. Substantial litigation fees were saved by this strategy.

Shafer Glazer LLP's Recent Case

Employment - Summary Judgment Granted



Plaintiff, a New York City school teacher, sued in Bronx County for constitutional violations, discrimination under federal, state and city law, intentional infliction of emotional distress, conversion, breach of contract and interference with a contract. Aiding and abetting the discrimination was also alleged. After the close of discovery, Shafer Glazer's Mika Mooney moved for summary judgment dismissing all claims. The motion was granted and plaintiff filed an appeal. The appeal was dismissed by the Appellate Division when plaintiff failed to perfect.

Shafer Glazer LLP's Recent Case

Coverage

A New Jersey client sought a coverage opinion involving a construction project. Shafer Glazer's Howard S. Shafer determined that most of the claims were not covered, but that there could be coverage for one claim involving possible advertising injury with little chance of owing indemnity. In the past, the client would have agreed to defend the entire suit. Shafer Glazer recommended offering a small percentage of the defense costs on a negotiated hourly rate slightly above their panel counsel rate. The insured's personal counsel agreed and the client was able to limit their exposure on the defense costs.

Jury Verdict Poll



Plaintiff, a 75-year-old passenger of a vehicle involved in a car accident that was being driven by another. The plaintiff suffered injuries to his back and sued for pain and suffering related to the accident after hospitalization for two weeks. Unfortunately, plaintiff died of cancer prior to the beginning of trial, but the suit was carried forward by his estate. How much did the jury award this plantiff?

A) $25,000

B) $100,000

C) $80,000

D) $200,000

Please send me the correct answer.

ABOUT OUR PRACTICE

Shafer Glazer’s Defense Litigation Practice

Automobile Liability

Autonomous Vehicles

Civil Rights

Chiropractic Malpractice

Construction Defect and Liability

Cyber Liability and Data Privacy

Dental Malpractice

Director’s and Officer’s Liability

Employment Practices Liability

Environmental and Toxic Torts

Insurance Coverage

Premises, Products and Professional Liability

Security Company Liability

Unmanned Aerial Systems (Drones)

Workers’ Compensation

Business and Commercial Litigation

The firm’s Corporate Counsel Practice provides general legal services to small and mid-size companies.