Gallo Vitucci Klar LLP is pleased to announce the partners, associates and staff of Rubin, Fiorella, Friedman & Mercante LLP are joining the firm effective January 1, 2024. The combined firm will continue as Gallo Vitucci Klar LLP. Terry Rubin, Ken Fiorella and Bruce Friedman will assume management positions at the firm. James Mercante will head the firm’s Maritime Group.
Gallo Vitucci Klar LLP is also pleased to announce Andrea Silk and Melissa Zoldan-Leite have assumed senior leadership positions at the firm. Andrea, a partner in the firm’s Construction Group and Alternative Fee Practice, has been named Managing Partner. Melissa, a partner in the firm’s Professional Liability and Healthcare Practices, has been named Chief Operations Officer. Senior Managing Partner, Howard Klar, commented “Andrea and Melissa bring outstanding leadership and different perspectives to the management of the firm. We are grateful for their commitment to the firm”.
The combined firm brings together over 100 lawyers in the New York/New Jersey metropolitan area, with offices in Manhattan, Long Island, Westchester and Bergen County, New Jersey, creating one of the largest regional firms in the geographical area. The consolidation of practices brings together decades of experience in the insurance industry to better serve its clients.
The core business of both firms remains insurance litigation and coverage, for domestic, international insurers and self-insured entities. The addition of Rubin, Fiorella, Friedman & Mercante, LLP adds additional expertise to Gallo Vitucci Klar LLP in the areas of insurance coverage, first party property, reinsurance, marine and no-fault. The firm will continue to be dedicated to providing the highest standard of legal services in our industry, as well as offering an innovative approach to our clients.
According to Howard Klar, “Rubin, Fiorella is a firm with long-standing relationships with its clients and extremely well-respected practices that will allow us to better serve our clients. We have worked closely with several of their partners over the years and share the same culture and commitment to our clients”.
“GVK is a strong partner, and the combined firm, offers a strategic advantage and opportunity for sustained growth. Everyone at our firm is excited about the combination of clients and resources and joining GVK, a firm with highly regarded operations”, commented Terry Rubin, Managing Partner of Rubin, Fiorella, Friedman & Mercante LLP.
A lower New York court has recently issued a decision which upset what was thought of as settled law in relation to an insured’s right to attorney fees in a DJ action. In the Utica v. Crystal Wall case, 2023 NY Slip Op 23362, the court ruled that if the insured is successful in defending against a DJ action that sought to disclaim the right to indemnify only, it could recover attorney fees. See attached decision.
Key to the court’s decision was a finding that the suit was a broad sided approach to limit any obligation to indemnify against the claims asserted and was filed at a very early stage of the underlying case, where facts had not been fully developed. One of the opening paragraphs in the decision emphasized this point, stating:
An insurance-coverage declaratory-judgment action is “premature”—and therefore subject to dismissal—”where the complaint in the underlying action alleges several grounds of liability, some of which invoke the coverage of the policy, and where the issues of indemnification and coverage hinge on facts which will necessarily be decided in the underlying action.”
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Utica effectively concedes that all but one of the requested declarations “depend on facts developed in the Underlying Action,” such that their declaratory-judgment claim is, to that extent, not ripe for resolution.
In our opinion, the court felt it was unreasonable to place the insured in the position to defend an against an action that could not be decided on all of the grounds asserted and, therefore, awarded attorney fees despite the fact there was no prior direct precedent for the decision. It is too early to determine whether there will be an appeal of the decision. The expenses associated with the DJ are not likely to be significant – the case was at the pleadings stage when the motion was filed. Utica might want to simply resolve the case and not poke the bears that sit on the First Department bench. The appellate courts in New York are not always insurer friendly and, when given the chance, might strengthen policyholder rights. That said, Utica might be concerned about the impact of the decision in other similarly filed cases.
The good news is that with respect to cases involving the pursuit of additional insured or priority of coverage cases, the decision does not have an impact. These cases typically involve a claim by one insurer vs another insurer. There are no fees to be reimbursed to an insured if the DJ is unsuccessful. We do not see the courts going so far as to create an “exception to the American rule” in insurer vs insurer suits.
To the extent that an insurer is in the posture of affirmatively disputing a party’s right to coverage, the decision does raise some concerns. However, if there is a complete denial of any duty to defend and indemnify, insurers rarely file a DJ action for the very reasons the court notes – that if an insured prevails in an action brought by an insurer on the duty to defend, the insurer bears the costs of the DJ action. Typically, an insurer waits for push back from the insured or their filing of a DJ. In circumstances where a reservation of rights has been issued and the duty to indemnify is the issue, picking and choosing the right case to bring suit has been and remains the guidepost. The decision in the Utica case just accentuates this point. Parenthetically, we note that the court did not rule out the possibility of bringing a DJ action for stakeholder purposes in an appropriate case where the underlying factual issues will be resolved in a reasonably timely manner stating as follows:
Although a court lacks jurisdiction to issue a declaratory judgment absent a justiciable controversy, a court does have discretion, in appropriate circumstances, to stay an unripe declaratory-judgment action, instead of dismissing it altogether. (See Allstate Ins. Co. v Kemp, 144 AD2d 853, 854 [3d Dept 1988] [affirming order that stayed a premature declaratory-judgment action].) This court concludes, however, that staying Utica’s action would not be appropriate here. The underlying action is complex and slow-moving. It is unclear to this court—and Utica does not attempt to provide clarity—when the factual questions bearing on Utica’s potential duty to indemnify the Crystal Entities will be resolved in that action. This court declines to leave the current action in a holding pattern for an open-ended (and presumably lengthy) period. This action is therefore dismissed without prejudice to its renewal once it is no longer premature.
If the case is affirmed on appeal, it is unknow whether the next logical step is for courts to award attorney fees to an insured who prosecutes a DJ action and prevails on the duty to defend issue. We are aware that currently some federal courts are more receptive to this argument than state courts. It would not surprise us if the NY state courts adopted this position down the road. We always though it odd that the if the insurer started a DJ action to disclaim the duty to defend and lost, it paid the insured’s attorney fee in defending the DJ but if the insured prevailed in its DJ on the same issue against the insurer, there was no obligation to pay the insured’s legal fees in prosecuting the DJ action.
We will continue to monitor the progress of this case and the related issue of the obligations of an insurer to pay legal fees in connection with a DJ action.
On October 5th, GVK had the privilege of joining hands with the Bowery Mission for a day of volunteering that made a meaningful difference in the lives of New Yorkers in need.
The Bowery Mission is dedicated to fostering the well-being and success of New Yorkers who are striving to overcome homelessness and marginalization. They achieve this by offering a range of compassionate services and by cultivating a transformative sense of community.
With the generous support of individuals like you, they extend a helping hand to their neighbors through various initiatives, including Compassionate Care, Residential & Community Programs, Transitional Housing & Alumni Programs, and specialized Children’s Programs. Through these efforts, the Bowery Mission strives to empower individuals in need, providing them with the resources and support necessary for a brighter future.
GVK enthusiastically participated in a day of volunteer service at The Bowery Mission to provide lunch to those facing challenging circumstances. It was a humbling experience, and we were deeply moved by the opportunity to make a positive impact on the lives of our fellow New Yorkers who rely on the Mission’s support.
Our dedication to community involvement and giving back remains an essential part of who we are, and we’re proud to continue supporting organizations like The Bowery Mission in their mission to uplift and empower our neighbors in need.
Special thanks to Hugh Linnehan and the rest of The Bowery Mission team for a warm welcome and an eye-opening experience. We’re excited about future volunteering with The Bowery Mission and urge you to join us in supporting their mission!
Over the weekend, Team GVK participated in the Tunnel to Towers 5k Run & Walk!
The Tunnel to Towers 5k Run & Walk in New York City is held each year on the last Sunday of September. The event symbolizes Stephen Siller’s final footsteps from the foot of the Battery Tunnel to the Twin Towers.
On September 11, 2001, off-duty FDNY firefighter Stephen Siller heard about the Twin Towers’ attack and immediately rushed to the Brooklyn Battery Tunnel. Despite its closure to vehicles, Siller put on 60 pounds of firefighting gear and made his way through the tunnel on foot; demonstrating unwavering dedication to duty and fellow citizens. Tragically, Stephen sacrificed his life in service, leaving behind a legacy of bravery in the face of adversity.
In addition to Siller, this event also pays homage to the 343 FDNY firefighters, law enforcement officers, and thousands of civilians who lost their lives on September 11, 2001.
Team GVK raised over $4,000 for the Tunnel to Towers Foundation!
We were very excited to be a part of the Tunnel to Towers 5k, and we look forward to participating again next year!
Gallo Vitucci Klar LLP is thrilled to announce that 12 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2023! These honors recognize the top legal professionals in their respective fields who have demonstrated excellence in their practice. Only 5% of lawyers in New York state are selected to be Super Lawyers and only 2.5% of lawyers are selected to be Rising Stars each year, yet many of our attorneys have been named to the list year after year.
2023 Rising Stars
The GVK 2023 Rising Stars include, Partner, Brandon Weinstein was selected for his second consecutive year for civil litigation defense. Partner, Patrick W. Kenny was selected for personal injury defense. Associate, Ancilla Dias-Pinto was selected for her second consecutive year for personal injury defense. Associate, Melissa D. Patzelt-Russo was selected for personal injury defense. Partner, Christopher L. Parisi was selected for his third consecutive year in New Jersey for construction litigation.
2023 Super Lawyers
In addition to these four Rising Stars, Senior Partners; Howard P. Klar, Matthew J. Vitucci and Partners; Patrick J. Cooney, Stephen A. Hoffman, Heather C. Ragone, Bryan T. Schwartz, and Joe J. Rava and Richard Gonzalez have been named to the 2023 New York Metro Super Lawyers List.
Senior Partner, Howard P. Klar has been named a Super Lawyer for his twelfth consecutive year in civil litigation defense. Senior Partner, Matthew J. Vitucci has been named a Super Lawyer for his eleventh consecutive year in Civil litigation and Personal injury defense.
Partner, Patrick J. Cooney was selected for his third consecutive year for personal injury defense. Partner, Stephen A. Hoffman was selected for his eighth consecutive year in civil litigation defense. Partner, Heather C. Ragone was selected for her eighth consecutive year in transportation and maritime defense. Partner, Bryan T. Schwartz was selected for his third consecutive year in personal injury defense. Partner, Joe J. Rava was selected for his third consecutive year in personal injury defense. Richard Gonzalez was selected for transportation as well as maritime defense.
Gallo Vitucci Klar LLP is thrilled to announce the elevation of three remarkable attorneys C. Briggs Johnson, Jacqueline S. Kim, and Rozaly Cohen to the position of partner. Their exceptional contributions and commitment to the firm’s growth and success have made this promotion a fitting recognition of their achievements.
C. Briggs Johnson has been with the firm since March 2021. Briggs is currently the Chair of the firm’s Appellate Practice Group. Brigg’s responsibilities encompass navigating complex and dispositive motions, trial motions, and perfecting appeals across the intricate trial and appellate courts of New York and New Jersey, as well as federal courts. His expertise includes legal research, drafting dispositive motions and appellate briefs, especially in cases involving high exposure and complex legal terrain.
Jacqueline S. Kim has been with the firm since June 2019. Jacqueline Kim is a legal professional with over 25 years of experience in general liability, including both plaintiff and insurance defense litigation. Jacqueline’s practice encompasses a diverse range of cases, including the handling of complex premises liability, automobile liability, labor law, and construction accident claims. Prior to joining the firm, Jacqueline served as in-house trial counsel at two major insurance carriers.
Rozaly Cohen has been with the firm since March 2012. She defends clients across the realms of general liability, premises liability, construction, insurance coverage, and automobile liability in both New Jersey and New York. Her approach consistently secures favorable outcomes for clients facing complex legal challenges.
Gallo Vitucci Klar LLP’s commitment to excellence is reflected in the elevation of C. Briggs Johnson, Jacqueline S. Kim, and Rozaly Cohen to partnership positions! As Gallo Vitucci Klar LLP continues to navigate the evolving legal landscape, the inclusion of these accomplished attorneys as partners reinforces the firm’s capabilities to best serve our clients.
On July 19, 2023, GVK obtained dismissal of plaintiffs’ legal malpractice claim and fourteen (14) related causes of action against GVK’s client. Plaintiff retained GVK’s client to represent her in a contentious matrimonial action which spanned several years. During the matrimonial action, GVK’s client’s diligent representation of the plaintiff resulted in a Parenting Agreement and two Settlement Stipulations placed on the record. Despite a favorable result obtained by GVK’s client in the underlying action, plaintiff brought suit against her attorney alleging a myriad of wrongdoings, only after GVK’s client brought a separate action to collect on the legal fees duly owed to her.
GVK successfully argued that plaintiff could not meet the requirements for a legal malpractice claim since, during her allocution in connection with the earlier Settlement, plaintiff: Acknowledged that the terms of the stipulation had been discussed and negotiated over a period of time understood the terms of the settlement in their entirety, believed the settlement was “fair and reasonable” and stated that she was satisfied with the services of her attorney. Additionally, GVK successfully argued that the client’s representation of plaintiff in the underlying action was found to be appropriate (as were her collections efforts for legal fees) and that prior sanctions against her did not amount to malpractice.
Justice Bannon in the Supreme Court, New York County rejected plaintiffs’ arguments and agreed with GVK that the evidence in the underlying matrimonial action clearly contradicted plaintiff’s legal malpractice claim. With respect to the Judiciary Law § 487 claim, the Court agreed with GVK’s position that the plaintiff failed to allege any intent to deceive on GVK’s client’s part and instead, the Court found that GVK’s client “zealously” represented the plaintiff in the underlying proceedings over several years, as demonstrated in plaintiff’s testimony in the underlying action and by virtue of plaintiff’s referral of her friends to GVK’s client.
In Scurry v. New York City Hous. Auth., 39 N.Y.3d 443 (2023), the Court of Appeals recently decided two separate cases that expanded the liability of defendants in negligent security actions arising out of the deliberate, intentional, or “targeted” attacks of third parties.
Previously, the Appellate Division, First Department uniformly held that a “targeted” attack by a third-party precluded a liability finding against a landlord-defendant in a negligent security action. That is no longer the case.
Our important take aways: (1) that a “targeted” attack does not absolve a landlord from liability in a negligent security action; and (2) that a landlord, tenant, or any other occupier of real property needs to ensure – on a daily basis – that they have properly functioning locks to all the entry points of their building or establishment.
The Court of Appeals made it crystal clear in Scurry that if there is any evidence that such locks are malfunctioning, or that they do not exist at all, a defendant can be liable to a plaintiff in a negligent security action even if plaintiff was injured due to an intentional or premediated attack by a third party.
Although the Court cautioned that “the sophisticated nature of an attack may in some cases be relevant to the proximate cause analysis, the fact that an attack was ‘targeted’ does not sever the casual chain between a landlord’s negligence and a plaintiff’s injuries as a matter of law.” Scurry, 39 N.Y.3d 443.
In both cases, the Court noted that “the risk created by the nonfunctioning door locks-that intruders would gain access to the building and harm residents-is exactly the “risk that came to fruition.” Id., quoting, Hain v. Jamison, 28 N.Y.3d 524, 533 (2016), citing, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 317 (1980).
In other words, the Court in Scurry held that the question of whether the attacks on the plaintiffs were foreseeable – in light of the questions regarding the malfunctioning door locks or the unlocked doors, when weighed against the intentional conduct of the assailants – was a question of fact for the jury to decide.
Yesterday evening, the NY State Senate voted on and passed the amended “Grieving Families Act” bill, which was reintroduced and passed in the Assembly last week (see our previous alert on the matter here).
Having now passed both houses of the state legislature, the bill is expected to be formally sent to the Governor’s office soon, which will trigger a 10-day deadline for Governor Hochul to sign it into law, veto or pass it with a change memo listing requested changes for the legislature to incorporate and vote on. The Times Union reports that notwithstanding modifications to the original bill, this will be its second review by the Governor in 6 months (she vetoed the original bill in Jan. 2023) and “it is unclear whether [Governor] Hochul’s position on the measure has changed. In a stock statement, [Governor] Hochul’s spokesman John Lindsay said the [G]overnor will review any measure that passes both houses.” It further reports that State Sen. Brad Hoylman-Sigal who re-introduced the bill stated that he has had informal discussions with the Governor’s staff and is optimistic that it has a “better chance than ever” of passage.
The Times Union is of course referring to the modifications made to the original bill to address the Governor and industry groups’ concerns about the financial impact of the proposed amendments to NY’s wrongful death statute. As we reported yesterday, in vetoing the bill in Jan. 2023, the Governor noted her concerns over the financial impact of increased litigation, health and insurance costs on lower-income families, small businesses, health care workers and hospitals. Most importantly, she called for evaluation of the financial impact of these changes, including consideration of NY’s constitutional prohibition against limits on jury damage verdicts, acknowledging that states with more expansive wrongful death statutes also have laws capping damage verdicts. As we noted in our previous alert, there is no indication in recent reporting of the bill that any of the proposed amendments are based on the “serious evaluation and study of the Act’s financial impact” on businesses, hospitals and municipalities that the Governor called for.
We will continue to monitor the bill’s consideration by the Governor. Should you have any questions, please do not hesitate to contact Howard Klar or William Parra.
A modified version of the Grieving Families Act (the “Act”) bill was recently reintroduced in the NY State Assembly and Senate. On June 1, 2023, the State Assembly passed Bill A6698. It will now proceed to the State Senate for a vote, although when is unclear. If the Senate passes the bill, this latest attempt to expand the scope of New York’s wrongful death statute will once again be presented to Governor Hochul for her signature and enactment into law or veto.
Last year’s attempt to amend Estates, Powers and Trusts Law (“EPTL”) §§ 5-4.1, 4.3, 4.4 and 4.6 sought to expand damages recoverable in NY wrongful death suits from “pecuniary losses” (i.e., a decedent’s future lost earnings), a decedent’s pre-death conscious pain and suffering and distributees’ loss of support, parental guidance/assistance and inheritance, to now include surviving family members’ right to recover for their own “emotional anguish.” That bill also sought to extend the statute of limitations from 2 to 3.5 years, expand the class of claimants to undefined “close family members,” and to apply retroactively to existing lawsuits.
Governor Hochul vetoed the original version of the bill earlier this year. While voicing support for such changes, she noted reservations over the scope of the proposed expansion of the claimant class; the financial impact of increased litigation costs and new claimants interjecting themselves into pending cases; increased health and insurance costs on lower-income families, small businesses, health care workers and hospitals, and other “significant unintended consequences.” She called for evaluation of the financial impact of these changes, including consideration of NY’s constitutional prohibition against limits on jury damage verdicts, acknowledging that states with more expansive wrongful death statutes also have laws capping damage verdicts. The version of the bill that passed attempts to address the Governor’s concerns by cutting the expansion of the statute of limitations from 2 to 3 years (rather than 3.5), and by expressly limiting claimants to decedents’ spouse/partner, children/grandchildren, parents/grandparents/guardians and siblings. This bill is also silent on its retroactive effect, indicating that it would not be so. Significantly, there is no indication that any of the proposed changes are based on the “serious evaluation and study of the Act’s financial impact” on businesses, hospitals and municipalities, that the Governor called for in vetoing the original bill.
We will continue to monitor the bill’s progress through the legislative process. Should you have any questions, please do not hesitate to contact Howard Klar or William Parra.
