Recent Blog Posts

Premises Liability/Personal Injury

Law Firm — Sat, 10 Jul 2004 09:12:00 GMT

In D'Ancona v. Town of Islip, Supreme Court, Suffolk County, the plaintiff claimed that she suffered severe and permanent knee injury requiring extensive surgery and preventing her from returning to work when slipped and fell as the result of a wet floor at Islip/McArthur Airport. Approximately one year after the alleged incident, plaintiff filed a motion seeking permission to file a late Notice of Claim. Although such requests are liberally granted, after an investigation was conducted, the Town of Islip determined that it never received any notice of the incident and the Town employees, who plaintiff claimed witnessed the accident, could not recall the incident having occurred. Accordingly, we were instructed to oppose the motion. The Court agreed with the Town of Islip's position and found that petitioner failed to set forth a reasonable excuse for the delay in filing a Notice of Claim, that the Town never received notice of the claim and that the Town was prejudiced by the delay and deprived of an opportunity to investigate the claim since the Town employees who allegedly witnessed the incident could not recall the incident having occurred.

Republic Metals Corporation v. Richard Atkin

Law Firm — Sat, 10 Apr 2004 09:11:00 GMT

In Republic Metals Corporation v. Richard Atkin, 00 cv 977 (S.D.N.Y. April 2004), Brown Gavalas & Fromm LLP commenced an action in the United States District Court for the Southern District of New York to enforce a personal guarantee against Richard Atkin that he executed in order to secure the consignment of precious metals to his company, Lou Atkin Casting, Inc. Mr. Atkin alleged that he did not execute the personal guarantee. Additionally, Mr. Atkin claimed that he was entitled to a set-off under an exception to the Collateral Source Rule as he claimed that Lou Atkin Casting, Inc. contributed to the procurement of a policy of insurance that paid upon the failure of Lou Atkin Casting, Inc. to return, or pay for, the precious metals. Following a bench trial, the Court (McKenna, J.) granted judgment in favor of our client for the full amount of the claim plus prejudgment interest at 9%. The Court concluded that the evidence established that Mr. Atkin executed the personal guarantee. The Court further concluded that the exception to the Collateral Source Rule was inapplicable as the evidence elicited at trial showed that Lou Atkin Casting, Inc. contributed to a different policy of insurance than the one that paid this claim.

Insurance Coverage/General Liability

Law Firm — Wed, 10 Dec 2003 10:11:00 GMT

Greater New York Mut. Ins. Co. v. Mutual Marine Office, Inc., 3 A.D.3d 44, 769 N.Y.S.2d 234 (2003 1st Dept.), involved a claim by Greater New York on behalf of its insured, Seward Park Housing, seeking a declaratory judgment that Mutual Marine Office’s principal was obligated to defend and indemnify Seward Park Housing for claims arising out of a garage collapse.

Seward owned an apartment complex which included an underground parking garage. The garage was operated by Ulltra East Parking pursuant to a garage operator’s agreement. The agreement required Ulltra to obtain liability insurance insuring Seward from claims for damage incurred in the premises. Ulltra obtained liability insurance from Mutual Marine Office’s principal which included Garage Keepers Liability insurance that provided coverage in connection with Ulltra’s garage operations. The policy also included an additional insured endorsement which provided additional insured coverage to those whom Ulltra agreed to provide coverage, but only with respect to operations performed by or on behalf of Ulltra.

Upon cross motions for summary judgment, the lower court granted Greater New York’s motion for summary judgment and denied Mutual Marine Office’s principal’s cross-motion. The trial court held that the additional insured endorsement contained in Ulltra’s general liability policy was triggered in that the claims arise out of damage to the vehicles while parked in the garage maintained by Ulltra, and therefore, arose out of Ulltra’s operations. As a result, the court also held that Mutual Marine Office’s principal must reimburse Greater New York for the costs and expenses incurred in defending and indemnifying Seward on the subject claims.

Our firm appealed the decision on behalf of Mutual Marine Office’s principal. The Appellate Division agreed with our client’s position and reversed the trial court’s decision. The Appellate Division held that the collapse of the roof of the parking garage did not arise out of Ulltra’s operations and, therefore, the additional insured endorsement of the policy was never triggered.

In reaching this decision, the Appellate Division distinguished, and found inapplicable, cases relied on by Seward and the lower court that dealt with the interpretation of additional insured provisions in policies for subcontractors in the construction field, and not policies for garage operators. The Appellate Division held that given the significantly different relationship between an owner/general contractor and lessor/lessee garage keeper, the rationale for extending additional insured coverage to an owner does not apply to the additional insured endorsement in a Comprehensive General Liability policy with a Garage Keepers Liability endorsement. The Appellate Division noted that a construction contractor, working in furtherance of its contract with the owner, is in the best position to avoid or reduce the risk of injury, especially to its own employees and those of its subcontractors. The Appellate Division found that such considerations do not apply to the relationship of a lessee garage keeper to the lessor, especially when the lease reserved to the lessor the sole responsibility for structural repairs. Accordingly, the Appellate Division held that unlike the contractor or subcontractor, which had the opportunity to control or minimize the risk of injury to its employees and those acting on its behalf at the construction site, Ulltra was in no position to avoid the risk of a structural collapse of the roof of a garage it leased, an event completely beyond its control.

Admiralty/Marine Insurance

Law Firm — Wed, 10 Dec 2003 10:10:00 GMT

New York Marine and General Insurance Company v. All Cargo Express, Inc., United States District Court, Southern District of New York, 01 CV 5736 (DLC), involved a declaratory judgment action that arose out of the alleged theft of perfume that was being shipped via overland truck movement from Laredo, Texas to Miami, Florida. Perfumania, Inc. (“Perfumania”) retained All Cargo Express, Inc. (“All Cargo”) to have the perfume shipment picked up from Bombay Connection in Laredo, Texas and transported to Perfumania’s warehouse in Miami, Florida. Prior to reaching Perfumania’s warehouse in Miami, the tractor/trailer and the subject shipment contained therein were allegedly stolen in Hialeah, Florida on November 21, 2002. The subject shipment of perfume was never recovered.

A claim was submitted under a Marine Open Cargo Policy issued by New York Marine and General Insurance Company (“NYMAGIC”) to All Cargo for the loss of perfume in the amount of $190,000.00. This claim was denied by NYMAGIC on various grounds including that All Cargo and Perfumania had no insurable interest in the shipment. The Court granted NYMAGIC a judgment declaring that there was no insurance coverage under the Marine Open Cargo Policy for the loss of perfume, that the Special Policy of Insurance issued by All Cargo under the Marine Open Cargo Policy to Perfumania was void, and that NYMAGIC was not liable in any manner to All Cargo or Perfumania with respect to the claim for loss.

Personal Injury/Damages

Law Firm — Wed, 10 Dec 2003 10:09:00 GMT

Ernish v. City of New York, 2 A.D.3d 256, 768 N.Y.S.2d 325 (1st Dept. 2003) involved a claim for personal injuries allegedly suffered by plaintiff, Ronald Ernish, when he fell approximately 20 feet on to a concrete floor, while working on a pier near the INTREPID along the Hudson River, in New York City. As a result of the fall, Mr. Ernish claimed to have suffered permanent brain damage, related physical and psychological disabilities as well as injuries to both shoulders and his right arm. In January 2002, prior to our firm’s involvement in this matter, a jury trial was conducted and the jury returned a verdict totaling $3,000,000. The jury awarded Mr. Ernish $1.1 million for past pain and suffering and $1.4 million for future pain and suffering and awarded his wife $250,000 for past loss of services and $250,000 for future loss of services. A motion to set aside the verdict was denied. The trial judge denied the City’s motion to reduce the damage awards.

After the trial, Brown Gavalas & Fromm was retained to pursue an appeal on behalf of the City. Although the evidence at trial established that the plaintiff suffered brain damage as a result of the accident, on appeal we argued that the damage award was excessive as it was substantially higher than prior awards for similar injuries. The Appellate Division, First Department unanimously agreed with our position and reduced the award for future pain and suffering from $1.4 million to $700,000 and the award for future loss of services from $250,00 to $125,000, for a total reduction of $825,000.

Premises Liability/Personal Injury

Law Firm — Wed, 10 Dec 2003 10:08:00 GMT

Johnson v. Traco Industrial Corp. v. New York City Transit Authority, New York Supreme Court, New York County, involved a claim by Thomas Johnson to recover for personal injuries allegedly sustained when he tripped and fell in a parking lot owned by Traco. At the time of the incident, the Transit Authority was permitted to park buses in the lot pursuant to a Permit to Enter Property.

Plaintiff, a Transit Authority bus dispatcher, alleged that, while walking through the lot checking buses, he stepped in a hole or depression, causing his knee to buckle, resulting in an injury to his knee. Traco moved for summary judgment arguing that plaintiff could not prove the hole was a defective condition and that Traco did not have notice of the alleged condition. In addition, Traco moved for summary judgment against the Transit Authority seeking contractual indemnity pursuant to the terms of the Permit to Enter Property. The court granted Traco’s motion in all respects, dismissing plaintiff’s complaint and granting Traco indemnity for defense costs incurred in the action.

Premises Liability/Personal Injury

Law Firm — Fri, 10 Oct 2003 09:08:00 GMT

Dorfman v. Mid-Town Realty Corp, New York Supreme Court and Appellate Division, First Department, involved a claim by plaintiff to recover for injuries she allegedly sustained when she became stuck in an elevator. Mid-Town Realty Corp. moved for summary judgment seeking common law indemnity from Serge Elevator Company on the grounds that Serge had an exclusive full service maintenance contract to maintain and repair the elevators and that a Serge mechanic did not immediately respond to the call of a passenger being stuck in the elevator. In response, Serge argued that the contract was not an exclusive contract since the contract specifically reserved to Mid-Town management and control over the elevator when Serge was not working in or about the equipment. Moreover, Serge argued that the contract specifically provided that Serge was not responsible for the erratic operation of the car doors or leveling at landings. The court found that those clauses in the contract made it inconclusive as to Mid-Towns right to look to Serge for performance of its duty to plaintiff.

The case then proceeded to trial where it was settled for a nominal sum.

September 2003: Brown Gavalas & Fromm Appointed

Law Firm — Wed, 10 Sep 2003 09:06:00 GMT

September 2003: Brown Gavalas & Fromm is appointed to represent several airlines in the personal injury and property damage litigation arising out of the terrorists’ attacks of September 11, 2001.

International Law/Fraud

Law Firm — Tue, 10 Jun 2003 09:05:00 GMT

Tolliver v. Federal Republic of Nigeria, 265 F.Supp. 2d 873 (W.D. Mich. 2003), involved a fraud commonly known as an Advanced Fee Fraud or "419 Scam." In these scams, impostors posing as Nigerian Government officials claim to have access to millions of dollars on deposit at the Central Bank of Nigeria, which they claim are left over from an over funded government contract. The impostors contact various individuals and businesses throughout the world and offer to share the money from the over-funded contracts if the individuals or companies assist them in getting the funds out of Nigeria. Fraudulent government documents are produced in order to create an air of legitimacy to the transaction. The assistance sought by the impostors is the payment of various purported fees, taxes and bribes in order to get the money out of Nigeria. The so-called victims of the scam, driven by greed, ultimately pay these alleged fees and taxes by wire transfer to various private bank accounts throughout the world. Since the whole transaction is a scam, the fictitious, over funded contract funds are never sent to the so-called victims.

In Tolliver, the plaintiff claimed that in 1993 he entered into a contract with the Nigerian National Petroleum Corporation to solve oil or gas pipeline misalignment problems that plaintiff claimed were prevalent in Nigeria. Although he never traveled to Nigeria to inspect the pipelines and did not receive any technical information regarding the alleged misalignment problems, plaintiff claimed to have solved these problems and that, therefore, he was entitled to $25,000,000. Additionally, beginning in 1999, plaintiff began making payments to various persons allegedly posing as Nigerian Government officials in an effort to collect the $25,000,000. Plaintiff alleged to have made payments totaling $500,000.

Plaintiffs as well as the Nigerian Government defendants moved for summary judgment. Plaintiff’s motion for summary judgment was denied and the Nigerian Government Defendants’ motion for summary judgment was granted. In granting the motion, the Court found that the Nigerian Government Defendants were immune from suit under the Foreign Sovereign Immunities Act. In reaching this decision, the Court recognized that plaintiffs became involved in a 419 scam in which the Nigerian Government Defendants were not involved.

International Law/Fraud

Law Firm — Sat, 10 May 2003 09:05:00 GMT

Southway v. Central Bank of Nigeria,328 F.3d 1267 (10th Cir. 2003), involved a fraud commonly known as an Advanced Fee Fraud or "419 Scam." In these scams, impostors posing as Nigerian Government officials claim to have access to millions of dollars on deposit at the Central Bank of Nigeria, which they claim are left over from an over funded government contract. The impostors contact various individuals and businesses throughout the world and offer to share the money from the over funded contracts if the individuals or companies assist them in getting the funds out of Nigeria. Fraudulent government documents are produced in order to create an air of legitimacy to the transaction. The assistance sought by the impostors is the payment of various purported fees, taxes and bribes in order to get the money out of Nigeria. The so-called victims of the scam, driven by greed, ultimately pay these alleged fees and taxes by wire transfer to various private bank accounts throughout the world. Since the whole transaction is a scam, the fictitious, over funded contract funds are never sent to the so-called victims.

In Southway, the plaintiffs and others paid in excess of $700,000 to various impostors in an effort to obtain $21,000,000 that was said to be on deposit at the Central Bank of Nigeria. Thereafter, the plaintiffs commenced this fraud and RICO action against the Federal Republic of Nigeria and Central Bank of Nigeria. After the close of discovery, we moved for summary judgment on behalf of the Federal Republic of Nigeria and the Central Bank of Nigeria. Chief Judge Babcock of the United States District Court for the District of Colorado granted the motion for summary judgment. 149 F.Supp.2d 1268 (D. Colo. 2001) In granting the motion, the Court found that the Federal Republic of Nigeria and the Central Bank of Nigeria were immune from suit under the Foreign Sovereign Immunities Act. In reaching this decision, the Court held that the scam was perpetrated by individuals posing as Nigerian Government officials and that Nigerian Government officials were not involved in the scam.

The Tenth Circuit unanimously affirmed the decision of the District Court dismissing the case on the grounds that the Federal Republic of Nigeria and its Central Bank were immune from suit under the Foreign Sovereign Immunities Act.

Premises Liability/Personal Injury

Law Firm — Thu, 10 Jan 2002 10:04:00 GMT

Magda Perez v. Quick Park Garage Corp., New York Supreme Court, Kings County, involved a claim by plaintiff, Magda Perez to recover for personal injuries sustained when she was run over by a car exiting a garage operated by Quick Park. Plaintiff , while walking on the sidewalk outside the garage, was struck by a tenant of the garage who just retrieved his car from the garage. Plaintiff claimed numerous severe injuries relating to the incident including a miscarriage.

We moved for summary judgment on behalf of Quick Park on the ground that the garage operator owes no duty to pedestrians on the street to prevent them from being struck by tenants driving their own cars out of the garage. Plaintiff argued that by posting “STOP” signs at the exit and a sign stating “WATCH FOR PEDESTRIANS” the garage assumed a duty to ensure that the tenants leaving the garage drove with due care out of the garage. The court granted Quick Park’s motion for summary judgment.

International Law/Fraud

Law Firm — Thu, 10 Jan 2002 10:03:00 GMT

In Keller v. Central Bank of Nigeria, 2002 U.S. App. LEXIS 660 (6th Cir. 2002), the United States Court of Appeals for the Sixth Circuit held, in vacating the decision of the District Court for the Northern District of Ohio, that a claim under the Racketeer Influenced and Corrupt Organizations Act of 1970 ("RICO") could not be maintained against a foreign sovereign. One of the elements that must be established under RICO is that the defendant engaged in "racketeering activity." The RICO statute defines "racketeering activity" as acts which are "chargeable," "indictable" or "punishable" under various state and federal statutes. 18 U.S.C. §1961(1). Thus, in the Sixth Circuit, we argued that because the Foreign Sovereign Immunities Act conferred immunity upon a foreign sovereign from criminal prosecution in the United States courts, a foreign sovereign could not be charged, indicted or punished with a crime. Therefore, we further argued, that a RICO claim could not be maintained against a foreign sovereign because the element of "racketeering activity" could not be proven. The Sixth Circuit adopted this position in ordering that the RICO claim be dismissed.

The decision of the Sixth Circuit in Keller is significant because it is the first decision by an appellate court to hold that foreign sovereigns are immune from civil RICO claims. The only other appellate court to address this issue, the Tenth Circuit in Southway v. Central Bank of Nigeria, 198 F.3d 1210 (10th Cir. 1999), reached the opposite conclusion. The Sixth Circuit expressly rejected the Southway decision in this regard.

Admiralty/Marine Insurance

Law Firm — Fri, 27 Apr 2001 09:02:00 GMT

In Joe Ahoy, Inc. v. New York Marine and General Insurance Co., New Jersey Superior Court, Mommouth County (April 27, 2001), plaintiff sued underwriters seeking a declaration of coverage under a general liability policy for costs incurred in the clean up of diesel fuel which leaked from plaintiff's tug which sunk off the coast of New Jersey. In addition to seeking the costs of the clean up, plaintiff sought treble damages pursuant to the New Jersey Consumer Fraud Act. Plaintiff argued that the policy was ambiguous since the policy pollution exclusion clause was deleted from the policy and an Absolute Pollution Exclusion was added by endorsement. The court granted underwriters motion for summary judgment, finding the Absolute Pollution Exclusion was unambiguous and also finding that the Consumer Fraud Act did not apply since any alleged misrepresentation by the broker could not be imputed to the underwriters.

Admiralty/Marine Insurance

Law Firm — Thu, 05 Apr 2001 09:01:00 GMT

In Reliance Insurance Company v. Keystone Shipping Company, 102 F. Supp. 2d 181 (S.D.N.Y. June 22, 2000), aff'd 2001 U.S. App. LEXIS 6047 (2d Cir. April 5, 2001) we were successful, on behalf of four underwriters subscribing to a standard form Bumbershoot policy, in establishing that the Bumbershoot policy does not require Underwriters to indemnify the insured for the approximately $6,000,000 it paid to defend and settle a claim by the purchaser of one of its vessels who claimed that the vessel had been sold in a state of disrepair. At trial in the United States District Court, the insured claimed that corrosion to the steel hull of a vessel it sold was not the result of normal wear and tear or lack of maintenance, but had occurred over a four-month period due to a phenomenon known as microbially-influenced corrosion ("MIC"). The court, however, agreed with our clients' position that the theory that MIC corroded the vessel was based on unreliable and unrecognized scientific analysis and testing. The court also agreed with our clients' position that Clause (1)(c) of the standard form Bumbershoot policy does not, despite its all encompassing language, cover damage to property while the insured owns the property even if a third party suffers damage as a result of the subsequent sale of the property. The decision of the District Court was unanimously affirmed by the Second Circuit.

Admiralty/Marine Insurance

Law Firm — Tue, 06 Mar 2001 10:00:00 GMT

Sovereign Recycling International, Inc. v. New York Marine and General Insurance Co., 2001 U.S. Dist LEXIS 2199 (S.D.N.Y. March 6, 2001) involved a declaratory judgment action to recover approximately $285,000 in damages plus $500,000 in punitive damages for losses allegedly covered under an open cargo policy. Underwriters were successful in moving for summary judgment dismissing the case on the grounds that the insured failed to prove a loss coming within the scope of the policy. Plaintiffs shipped scrap metal to a Russia to be recycled into cobalt. The cobalt was then shipped to a warehouse designated by plaintiff in a Rotterdam. The cobalt was then sold to a company in the U.S. After plaintiffs shipped the cobalt to the United States, plaintiffs' purchaser discovered that a portion of the cobalt was missing. The court held that defendant was not liable, since plaintiffs did not make the required declarations of the voyages from Russia to Rotterdam or to the warehouse, and plaintiffs failed to show that the quantity of cobalt delivered was less than that removed from the warehouse. Plaintiffs' declaration of the voyages to a recycling company in Russia, and from the warehouse, indicated that plaintiff was not declaring a round trip, and the sheer volume of shipments from the foreign company to the warehouse belied plaintiffs' claim that their failure to declare the voyages was unintentional error. Further, plaintiffs' failure to inspect the cobalt at the warehouse precluded showing that the amount delivered was less than the amount shipped from the warehouse as required to invoke defendant's policy coverage.