Appellate Practice

 

In Recent Decision, Court of Appeals Discourages Ministerial Justice, Client Advisory (December 16, 2011)

 

State Appellate Court Finds Mental Health Professionals Immune From Suit, Client Advisory (September 1, 2011)

 

Failure to comply with a conditional order of preclusion results in dismissal of plainiff's complaint, Client Advisory (December 20, 2010)

 

Architects and Engineers

 

New York Court of Appeals Finds Excavating Landowner Strictly Liable for Damage to Adjoining Property Under Pre-2008 Law, Client Advisory (Feb 16, 2012)

 

Architects Denied Summary Judgment Despite Lack of Privity with Plaintiff, Client Advisory (Feb 14, 2012)

 

Commercial Litigation

 

New Jersey’s Supreme Court rules that an order compelling or denying arbitration is final for the purpose of appeal, regardless of whether the order disposes of all issues and all parties, Client Advisory (April 18, 2011)

 

Construction and Labor Law

 

Evidence Regarding Inspection Procedures Required to Prevail on Summary Judgment When Constructive Notice Alleged, Client Advisory (Feb 9, 2012)

 

Cyber Liability

 

E-Mail, Text, Facebook...Lawsuit? Legal Minefield of Cyberbullying, New York Law Journal (October 24, 2011)

 

Cyberbullying In Educational Institutions, Client Advisory (July 27, 2011)

 

Cyberbullying and Intentional Infliction of Emotional Distress, New York Law Journal (February 9, 2011)

 

Directors and Officers Liability

 

Circuit Rules on Materiality, Client Advisory (July 27, 2011)

 

Supreme Court Rejects the ‘Statistical Significance’ Requirement to Prove Materiality in Securities Suits, Professional Liability Underwriting Society (May 2011)

 

Court Rejects the "Statistical Significance" Requirement To Prove Materiality In Securities Suits, Client Advisory (March 24, 2011)

 

Employment Practices Litigation

 

A Matter of Interpretation: First Circuit Declines to Extend SOX Whistleblower Protection to Employees of Private Companies Engaged as Contractors of Public Companies, Client Advisory (February 9, 2012)

 

United States Supreme Court Recognizes Broad "Ministerial Exception" to Employment Discrimination Laws, Client Advisory (January 13, 2012)

 

NLRB Delays Notice-Posting Rule until April 30, 2012, Client Advisory (January 11, 2012)

 

California Supreme Court Finds That Administrative / Production Worker Dichotomy Is Not Dispositive In Determining Whether Employees Are Exempt From Overtime Compensation Requirements, Client Advisory (January 9, 2012)

 

For Auld Lang Syne: A Year in Employment Law Not Soon Forgotten, Client Advisory (December 8, 2011)

 

NLRB Issues Final Rule Imposing Notice Posting Requirement on Private Sector Employers, Client Advisory (September 6, 2011)

 

EEOC issues new regulations concerning the Americans with Disabilities Act, Client Advisory (April 4, 2011)

 

U.S. Supreme Court's Wal-Mart Ruling Hinders Plaintiffs' Ability to Bring Class-Actions, Client Advisory (June 21, 2011)

 

Supreme Court Strengthens Individual Arbitration Process, Client Advisory (April 29, 2011)

 

The New York Wage Theft Prevention Act Adds New Obligations (and Penalties) for Employers, Client Advisory (April 5, 2011)

 

U.S. Supreme Court Cat's Paw Theory of Liability Upheld, Client Advisory (March 8, 2011)

 

New Jersey Employment Alert: The New Jersey Supreme Court addresses the timeliness of a wage discrimination complaint under the Law against Discrimination (LAD), Client Advisory (December 8, 2010)

 

California Court of Appeals Precludes Indemnity Under Section 533 Even Though the Policy at Issue Provided Coverage for Such Product, Client Advisory (June 1, 2010)

 

The New Jersey Supreme Court addresses the statute of limitations for Law against Discrimination wrongful discharge retaliation claims and post-discharge retaliation claims, Client Advisory (March 18, 2010)

 

New York Court of Appeals Rules Employer’s Farragher/Ellerth Affirmative Defense to Sexual Harassment Claims Under Title VII is Inapplicable to Sexual Harassment and Retaliation Claims Under New York City’s Human Rights Law, Client Advisory (May 11, 2010)

 

NJ Law Against Discrimination: J.T.'s Tire Service v. United Rentals, Client Advisory (January 11, 2010)

 

Interactive Process Under ADA:  McBride v. BIC Consumer Products Mfg. Co., Client Advisory (October 15, 2009)

 

ERISA and Fiduciary Liability

 

Fee Award Not Warranted Under ERISA for "Trivial" Non-Monetary Settlement, Client Advisory (November 10, 2011)

 

Victory for ERISA Fiduciaries: Second Circuit adopts the "Moench Presumption", Client Advisory (October 21, 2011)

 

Fire and Explosion

 

A glimmer of hope for the defense of New York General Municipal Law 205-A and 205-E claims (the Firefighters' and Police Officers' Rule), Client Advisory (August 4, 2011)

 

General Liability

 

Eastern District of New York Awards Summary Judgment to Defendant Golf Course Based Upon Plaintiff's Voluntary Assumption of Risk, Client Advisory (September 7, 2011)

 

CPLR § 3122 Amended to Clarify Trial Court's Ability to Issue Subpoena for Medical Records Without Patient Authorization, Client Advisory (August 9, 2011)

 

Defendant Not Responsible For Defect On The Sidewalk Despite Evidence Of Control Over The Sidewalk, Client Advisory (June 20, 2011)

 

A "Recurrent Condition" Must Be In The Area Of The Alleged Accident To Establish Notice, Client Advisory (June 14, 2011)

 

Doctrine Of Res Ipsa Loquitur Enough To Create An Issue Of Fact Against Elevator Company For Misleveled Elevator, Client Advisory (June 3, 2011)

 

Building's Alleged Violation Did Not Directly or Indirectly Cause Firefighter's Injuries, Client Advisory (April 5, 2011)

 

Plaintiff's Superseding, Intervening Conduct Precludes Finding of Liability, Client Advisory (April 4, 2011)

 

Court of Appeals Extols Benefits of Conditional Orders of Preclusion, New York Law Journal (March 8, 2011)

 

The Social Network in Personal Injury Litigation, New York Law Journal, (December 15, 2010)

 

Liability of Owners, Contractors and Agents Under the Labor Law, Client Advisory (February 25, 2011)

 

Medicare Secondary Payer Act - Second Update, Client Advisory (December 2, 2010)

 

Snow and Ice Litigation in New York, Client Advisory (November 5, 2010)

 

Primary Assumption of the Risk: Still Viable Defense, With Limitations, New York Law Journal (November 1, 2010)

 

Discovery of social networking information, Client Advisory (September 28, 2010)

 

Defending Gymnasiums, Sports and Recreational Facilities, Client Advisory (September 23, 2010)

 

The New Jersey Supreme Court addresses pre-injury waiver of liability clauses in gym membership applications, Client Advisory (September, 3 2010)

 

Klee v. Americas Best Bottling Co., Inc. (NY state court) (Form W-9 and settlements), Client Advisory (August 25, 2010)

 

New York City Sidewalk Law, Client Advisory (July 14, 2010)

 

An Insurer’s Duty to Defend and Indemnify Its Additional Insured, Client Advisory (June 22, 2010)

 

Sick Building Syndrome:  What is it and How is it Pled?, PLUS Article (June 20, 2010)

 

Testimony as to “Regular Routine” For Cleaning a Building Enough to Make Out a Prima Facie Case for Summary Judgment, Client Advisory (April 26, 2010)

 

Labor Law Section 240(1) and Falling Objects, Client Advisory (April 12, 2010)

 

The Court of Appeals Upholds Dismissal of Police Officer’s Suit Because Injury was a Risk Associated With Police Work, Client Advisory (April 1, 2010)

 

New York Court of Appeals Issuing Ruling Clarifying Scope of Sole Proximate Cause Defense in New York State Labor Law Section 240(1) Cases, Client Advisory (March 2, 2010)

 

Don’t Let Your Guard Down!  Liability of Security Guard Companies for Injuries to Third Parties, ABA (Fall 2009)

 

Healthcare Law

 

Protecting Mental Health Professionals in Child Custody Cross-Fire, New York Law Journal (August 16, 2010)

 

New York State Legislature Amends Public Health Law Section 2801-d Subdivisions (1) and (4) in Relation to Private Actions by Patients in Health Care Facilities, Client Advisory (September 11, 2009)

 

Hospitality and Dram Shop

 

The New Jersey Supreme Court Permits Motorists Convicted of Driving While Intoxicated to Sue Liquor Establishments for Negligent Service of Alcohol, Client Advisory (June 27, 2011)

 

The New Jersey Supreme Court will consider whether dram shop claims by intoxicated motorists are barred by automobile insurance laws, Client Advisory (April 12, 2011)

 

Hotel and Hospitality Risk Management, DRI (May 4, 2011)

 

Insurance Coverage

 

Highlights of a Record-Setting Year: Securities Litigation Activity in 2011 and its Impact on the D&O Insurance Landscape, Client Advisory (February 3, 2012)

 

Court Finds Benefits Due Exclusion Precludes Coverage under Fiduciary Liability Policy, Client Advisory (February 2, 2012)

 

New York Appellate Court Finds that N.Y. Ins. Law 3420(d) Precludes an Insurer from Waiting to Issue its Disclaimer on Late Notice Grounds while it Investigates Additional Grounds to Preclude Coverage, Client Advisory (February 1, 2012)

 

U.S. District Court Addresses Coverage for Multiplied Portion of Award of Fees to Plaintiffs' Attorneys in "Bump-Up" Class Action, Client Advisory (January 24, 2012)

 

Court Finds FTC Investigation Constitutes a Claim under D&O Policy, Client Advisory (January 11, 2012)

 

Stipulated Judgement Against Insured, With A Covenant Not To Execute, Is Not A Covered Loss Under D&O Policy, Client Advisory (January 3, 2012)

 

Southern District of California Finds Insurer Entitled to Rescission Based on Insured's Concealment of Material Adverse Information, Client Advisory (December 30, 2011)

 

Ninth Circuit Upholds Carrier Position That Wage And Hour Class Action Lawsuit Does Not Allege An Employment Practices Wrongful Act, Client Advisory (December 29, 2011)

 

New York Appellate Court Finds that Disgorgement Payment to SEC under Settlement Agreement was not an Insurable Loss, Client Advisory (December 14, 2011)

 

Breach of Consent to Settle Provision Precludes Coverage for $25,000,000 Settlement in Federal v. SafeNet, Client Advisory (November 29, 2011)

 

Eastern District of California Finds that Insurer Properly Allocated Defense Costs and Set Reasonable Rates for Independent Counsel Selected by Insureds, Client Advisory (November 22, 2011)

 

Eleventh Circuit Finds No Coverage under D&O Policy for Informal SEC Investigation, Client Advisory (October 18, 2011)

 

Settlement Within Primary's Limit Does Not Trigger Excess Limit Even Though Loss May Exceed Both Limits, Client Advisory (October 10, 2011)

 

S.D.N.Y.: Excess D&O Insurers Not Obligated to Drop Down to Fill Insolvent Underlying Insurer Gap and Excess Coverage Not Triggered Merely Because Losses Exceeded Underlying Limits. Client Advisory (October 6, 2011)

 

Fraud Exclusion Does Not Require Exhaustion of Appellate Review and May Be Imputed to Entity via Agency Law; Issue of Waiver Precludes Summary Judgment on Rescission despite Misrepresentations, Client Advisory (October 4, 2011)

 

S.D.N.Y. Rejects Purported Derivative Claims as "Artifice" to Implicate Coverage, Client Advisory (September 15, 2011)

 

California Court Of Appeal Rules In Favor Of Insurer On The Issue Of Interrelatedness, Client Advisory (September 23, 2011)

 

Southern District of California Finds Coverage under D&O Policy for Legal Fees Paid on Behalf of Non-Party Employees Subpoenaed in Securities Fraud Lawsuit, Client Advisory (September 1, 2011)

 

Fifth Circuit: Excess Policies not Triggered when Insured entered Below-Limits Settlement with Primary, Client Advisory (August 15, 2011)

 

Delaware Bankruptcy Court Addresses Issues Of Related Claims, Insured Versus Insured Exclusion And Allocation, Client Advisory (August 12, 2011)

 

New Jersey's Supreme Court rules that a Rova Farms bad faith claim is a simple breach of contract claim and, therefore, an action triable to a jury, Client Advisory (July 22, 2011)

 

Sexual Molestation Claims Covered Under D&O Policy, Client Advisory (June 13, 2011)

 

Disclosure of Claim in Application Does Not Constitute Notice Under the Policy, Client Advisory (June 10, 2011)

 

Priority of Coverage Analysis: Contract Terms v. Policy Terms, Client Advisory (April 14, 2011)

 

Prior Knowledge Provision Bars Coverage For Claim, Client Advisory (March 29, 2011)

 

Recent Case Law Illustrates Division on Insurer's Right to Reimbursement of Defense Costs, ABA (Winter 2011)

 

New York Court Finds Coverage For Derivative Plaintiffs' Attorneys' Fees, Client Advisory (March 1, 2011)

 

New York Court of Appeals - Other Insurance Provision in D&O Policy makes it Excess Over CGL Policy, Client Advisory (February 28, 2011)

 

Late Notice Precludes Coverage Under Fidelity Bond, Client Advisory (December 6, 2010)

 

District Court Rules, After Preliminary Injunction Hearing, that D&O Insurers are not Obligated to Advance Defense Costs in SEC and Criminal Proceedings, Client Advisory (October 19, 2010)

 

Genzyme Partially Reversed by First Circuit, Client Advisory (October 15, 2010)

 

Right of Contribution from Co-Insurers on Overpayment of Defense Fees (Texas, Trinity Universal Decision), ABA ICLC (Summer 2010)

 

Second Circuit Affirms Recession of Fidelity Bond, Client Advisory (June 28, 2010)

 

Supreme Court to Address Materiality – Grants Cert in Matrixx Initiatives Securities Suit, Client Advisory (June 16, 2010)

 

Third Circuit Affirms Finding Of No Coverage Based on Bump-Up Exclusion, Client Advisory (June 14, 2010)

 

Court Holds Insolvency Exclusion Bars Coverage For Madoff-Related Claims, Client Advisory (April 28, 2010)

 

Delaware Supreme Court Affirms Finding of No Coverage Based on Prior Acts and Prior Notice Exclusions, Client Advisory (April 28, 2010)

 

United States Supreme Court Issues Ruling Clarifying Standard For Challenging Mutual Fund Fees, Client Advisory (April 28, 2010)

 

Canadian Court Allows Securities Suit To Proceed and Certifies Worldwide Class, Client Advisory (December 21, 2009)

 

“Bump Up” Claim Held Uninsurable Under D&O Policy, Client Advisory (October 2, 2009)

 

Lawyers Professional Liability

 

Legal Malpractice Claim Dismissed as Time-Barred Due to Lack of "Continuous Representation", Client Advisory (February 6, 2012)

 

Legal Malpractice Claim Dismissed as Time-Barred Due to Lack of "Continuous Representation", Client Advisory (February 6, 2012)

 

Attorney's Ghostwriting for Pro Se Petitioners Was Not Misconduct, Says Second Circuit, Client Advisory (November 23, 2011)

 

Collectors and Their Collection Attorneys May Be Held Liable Under the FDCPA For Filing Successive Lawsuits Against a Debtor, Client Advisory (November 7, 2011)

 

Malpractice Alert: Claim Revived Where Attorney Failed to Timely Appeal Viable Pension-Claim Appeal, Client Advisory (August 26, 2011)

 

Contribution in a Legal Malpractice Action Available When Third-Party Attorney is an Independent Tortfeasor, Client Advisory (April 6, 2011)

 

New Jersey Supreme Court Holds That Legal Malpractice Action Need Not Be Part of Probate Proceeding Under Entire Controversy Doctrine, Client Advisory (April 5, 2011)

 

Recent Decision Examines Blended Services Provided by Attorneys, Client Advisory (March 1, 2011)

 

New York Court of Appeals Refuses to Extend Liability to Third-Parties for the Misdeeds of Corporations, Client Advisory (October 22, 2010)

 

Second Circuit Holds Claims of Legal Malpractice Based on Services Rendered in Connection with a Bankruptcy Petition Fall Within the Bankruptcy Court’s “original but not exclusive jurisdiction”, Client Advisory (August 11, 2010)

 

New Jersey Supreme Court Finds Settlement of Underlying Action Does not Bar Legal Malpractice Action, Client Advisory (June 18, 2010)

 

New York Court of Appeals Eliminates Privity Requirement for Legal Malpractice Actions Brought By Representatives of a Decedent’s Estate, Client Advisory (June 17, 2010)

 

Second Circuit Court of Appeals Rejects Claims Against Secondary Actors (Lawyers) Under Securities Laws, Client Advisory (April 28, 2010)

 

The Fee-Shifting Requirement of Saffer v. Willoughby Does Not Extend to Fee Suits Where the Client Has No Viable Counterclaim for Legal Malpractice, Client Advisory (April 7, 2010)

 

Affect of Resolution of Fee Suit on Pending Legal Malpractice Action, Client Advisory (March 1, 2010)

 

New York Court Permits Judiciary Law § 487 (Treble Damages) Claim to Proceed Against Attorney for Alleged Deceit Occurring Outside of New York, Client Advisory (January 22, 2010)

 

Second Circuit Court of Appeals Seeks Clarification of Wagoner Rule’s Application in Refco Trustee’s Fraud Suit, Client Advisory (January 19, 2010)

 

Medical Malpractice

 

Mental Health Providers and the Duty to Non-Patients, Part II, The Suffolk Lawyer (February 2012)

 

Fourth Department Joins Emerging Trend - Evaluating Expert Testimony in Medical Malpractice Cases Under Both the Frye and Parker Standards, Client Advisory (Feb 9, 2012)

 

Regarding Inspection Procedures Required to Prevail on Summary Judgement When Constructive Notice Alleged, Client Advisory (February 9, 2012)

 

Mental Health Providers and Potential Duty to Non-Patients, Part I, The Suffolk Lawyer (January 2012)

 

New Focus on Electronic Distractions in Medical Care, Client Advisory (December 19, 2011)

 

Dentist Is Sued By Patient Who Alleges Dentist Sought To Impose Fines For Negative Internet Comments, Client Advisory (December 2, 2011)

 

State Law Now Requires A Master's Degree Or Higher To Obtain A License In Physical Therapy, Client Advisory (October 13, 2011)

 

Second Department Holds Mental Health Provider 75% Liable For Having Sexual Relationship With Patient, Client Advisory (September 21, 2011)

 

The Pitfalls of Record Alteration, Risk Management Quarterly (Summer 2011) 

 

Strategies for Defending Malpractice Claims Against Radiologists, Risk Management Quarterly (Spring 2011)

 

Amendment to the Uniform Civil Rules for the Supreme Court and County Court: Section 206.12(a) Medical, Dental and Podiatric Malpractice Actions; Settlement Conference, Client Advisory (June 14, 2011)

 

2011 PJI Poses Problems for Reducing Damages to 'Present Value', New York Law Journal (May 26, 2011)

 

New York State Creates Medical Indemnity Fund For Birth-Related Neurological Injuries, Client Advisory (May 12, 2011)

 

Defendant's Unauthorized Interview Precludes Introduction of Evidence at Trial, Client Advisory (???M?a?y? ?6?,? ?2?0?1?1??)

 

Boundary Violation Issues and Risk Management Concerns in Psychiatry, In Session with Allied World (Spring 2011)

 

Tort Reform: An Alternative Proposal, The New York Law Journal (March 21, 2011)

 

Plaintiff Cannot Assert New Theory In Their Expert Witness Disclosure - Campos vs. Beth Israel Medical Center, Client Advisory (February 7, 2011)

 

A Recent Appellate Division, Second Department Decision Regarding Spoilation of Evidence, Client Advisory (January 18, 2011)

 

Duty to Warn: Dangerous Patients, Professional Liability Underwriting Society Journal, Volume XXIII Number 7 (July 2010)

 

Running the Risk: Physical Therapy Malpractice, Advance for Physical Therapy and Rehab Medicine (October 18, 2010)

 

New Jersey Supreme Court Finds the Good Faith Standard of the Affidavit of Merit Statute’s Waiver provision does not require substantive explanations as to Why Experts in Defendant’s Field Refused to Provide an Expert Opinion for Plaintiff, Client Advisory (September 3, 2010)

 

Fernekes v. Catskill Regional Medical Center: Third Department Holds That Incident Report is Privileged, Client Advisory (August 11, 2010)

 

Blazing the Trial of Professional Liability, PLUS Article (July 2010)

 

Provider's Active Participation in Med Mal Defense, Dental IQ (May 2010)

 

Federal Court Finds Mental Health Professional Immune From Federal Suit, Client Advisory (April 13, 2010)

 

The Coming Counter-Reformation in Securities Litigation, PLUS Article (April 2010)

 

Pre-Verdict Stipulations of Settlement must be on the Record, Client Advisory (January 25, 2010)

 

An Introduction to Hospital Emergency Room Litigation, PLUS Journal (December 2009)

 

Determining Valuation In Loss of Chance Cases, New York Law Journal (December 21, 2009)

 

Risk Management: The Importance of Comprehensive Documentation in the Patient's Chart, International Journal of Clinical Impact Dentistry, Fall 2009

 

Potential Liability Issues Concerning the Swine Flu, The Risk Management Quarterly, (Fall 2009)

 

The Importance of Written Consent Forms In Dental Malpractice Litigation:  Not Just for Surgeons Anymore, Dental Dateline (Fall 2009)

 

Determining Valuation in Loss of Chance Cases, New York Law Journal (December 21, 2009)

 

Behavorial Finance: What Lessons Can Be Learned By the Insurance Claims Professional, Professional Liability Underwriting Society Journal, Volume XXI, Number 3 (March 2008)

 

Round 2: Fiduciaries Again Defeat ERISA Stock Claims at Trial in Brieger Et . Al. v. Tellabs, Inc., PLUS Journal (October 2009)

 

Authenticating Medical Records - a Proposal, New York Law Journal (April 24, 2007)

 

Expert Opinion: Erosion of the Ban on Learned Treatises, New York Law Journal (April 17, 2007)

 

Miscellaneous Professional Liability

 

Federal Court Finds Series of Unanswered Telephone Calls Made by Debt Collector to Unintended Recipient Did Not Violate Fair Debt Collection Practices Act - Client Advisory (January 25, 2012)

 

Home Buyers Can Sue Title Insurers Under New Jersey's Consumer Fraud Act, Client Advisory (November 11, 2011)

 

Insured's Notice to Insurance Broker Held Insufficient Notice to Insurer, Client Advisory (April 4, 2011)

 

New York Court of Appeals Rules an Insurance Broker does not have a Common-Law Fiduciary Duty to Disclose to its Customers the Incentive Agreements it has with Insurers, Client Advisory (March 11, 2011)

 

Professional Malpractice: Unique Issues Arising in Claims Against Home Inspectors, New Jersey Law Journal (January 2011)

 

Nursing Home and Long Term Care

 

Assisted Living Residences Are Now Required To Permit Long Term Care Ombudsmen Access To Facility, Client Advisory (November 7, 2011)

 

New Jersey’s Appellate Division rules the Federal Arbitration Act pre-empts the anti-arbitration provision in New Jersey’s Home Responsibilities and Rights of Residents Act.  In a latter decision, the Appellate Division analyzes state law and finds a pre-dispute arbitration clause between a doctor and patient unconscionable under contract-law principles, Client Advisory (September 30, 2010)

 

KB&R Wins a Favorable Trial-Level Decision Regarding the Disclosure of Personnel Files of Nursing Home Employees, Client Advisory (February 26, 2010)

 

Premises Liability

 

Lock Your Doors! Landowner Liability for Criminal Acts, New York Law Journal (September 1, 2009)