GVK’s appellate practice chair, C. Briggs Johnson, recently secured a major appellate victory in a Labor Law action. In Vasquez v. Manhattan College (App. Div. First Department Case No.: 2023-01676), plaintiff alleged that he injured himself on a construction project when he fell off a ladder while removing asbestos for our client (and his employer) in the basement of Leo Hall, a building owned by Manhattan College in the Bronx. Plaintiff demanded $10.5 million dollars, and the College looked to our client to indemnify them for the accident. On appeal, we proved that no indemnity obligation existed regarding plaintiff’s accident.
GVK attorney Bryan Schwartz and his team successfully dismissed Manhattan College’s contractual indemnity claims against our client on the grounds that the newer agreement between the two only had an indemnity obligation running in favor of our client and not Manhattan College. Later, Manhattan College found another, older agreement covering asbestos work a year or so earlier at the College. The College argued that the older agreement was the main agreement between the College and our client, and that the newer agreement merely supplemented the older agreement.
The Appellate Division disagreed and found our arguments more persuasive: that the newer agreement was separately negotiated; that the newer agreement unambiguously provided no indemnification for the college; that the newer agreement covered a different portion of the Leo Hall building; that the newer agreement had a separate project cost; and the newer agreement made no reference to the older agreement that Manhattan College found.
This is yet another poignant reminder of how every word in a construction contract truly does matter, and it reinforces the immense value of having a skilled appellate practitioner to investigate and dissect every single word in such contracts, which can be the crucial difference between – as it was here – avoiding Labor Law exposure.
GVK recently obtained a dismissal of a plaintiff’s Labor Law 240(1) claim arising out of a tragic construction site accident with a demand of $30 million dollars. Plaintiff claimed that he injured himself on a construction project when he drove a scissor lift off a temporary ramp on a construction project located in Brooklyn. Our clients were the owner and general contractor for the building, which means that we were first in line for the potential and massive exposure of the extraordinary protections of Labor Law 240(1) (the falling object and falling worker statute in New York). GVK made several highly nuanced and sophisticated arguments in support of a dismissal of that claim.
And the Court accepted one of those arguments. Although plaintiff argued that because he fell from an elevation on a construction project that he was automatically entitled to summary judgment on liability under Labor Law 240(1), the Court relied on the ample case law from our memorandum of law showing that the temporary ramp off which plaintiff fell “was not a tool use in the performance of the plaintiff’s work. Rather, it was a ‘passageway’ from one place of work to another. “The distinction is critical”, the Court continued, “because an accident arising on such a passageway does not lie within the purview” of Labor Law 240(1). In other words, the ramp was not the functional equivalent of a safety device enumerated and required by Labor Law 240(1).
The decision emphasizes the importance of having skilled appellate and Labor Law attorneys in defending these types of cases, because these types of arguments can be (and often are) frequently overlooked. In this case, the decision has the potential to save our clients millions of dollars.
If you would like any more information about the decision and a copy of our briefs, or if you would like GVK to assist your client in the defense (including motion practice and any appellate work) in these types of high exposure cases in Labor Law matters, please feel free to contact: Howard Klar, Jay Rava, or C. Briggs Johnson at your convenience.
With the previous announced addition of the attorneys of Rubin, Fiorella, Friedman & Mercante LLP (“RFFM”) to Gallo Vitucci Klar LLP (“GVK”), we are excited by the expansion and strengthening of our New York No-Fault insurance law practice. Three new partners from RFFM, Charles T. Rubin, David Boucher, and Michael Tomsky, join as experts in the area of New York No-Fault law, enriching the firm’s capabilities and commitment to excellence in legal services. Additionally, Sarah Rubin joined GVK as a partner in late November 2023 from Lewis Brisbois where she served as Managing Attorney of the firm’s No-Fault department for almost 14 years and will also be a team manager, further strengthening the practice.
GVK’s No-Fault department is involved in all aspects of the practice, from submission of claims to litigation and larger scale coverage actions. GVK’s primary goal is to think outside the facially rigid rules imposed by regulation and to identify the avenues that provide clients with an extra layer of protection against specious claims. The firm regularly conducts SIU investigations as to the legitimacy of reported collisions and subsequent treatment by taking examinations under oath of claimants and medical providers. The firm has led the industry in initiating declaratory judgment actions, which have been an effective tool in cutting off claims and, at the same time, reducing fees and costs for its clients. The declaratory actions have been used to attack all claims resulting from a single accident or in larger actions relating to licensing and RICO violations by medical providers.
GVK also maintains an active litigation and arbitration practice and regularly conducts trial, arbitration hearings and appeals. This Team has obtained excellent results for its clients, particularly in defending fraud claims, including some of the leading New York State decisions on this issue. The Team has obtained favorable decisions, protecting insurers from having to justify examination under oath requests post hoc and piercing corporate veils of providers who seek to use the corporate entity to shield themselves from fraudulent behavior.
Additionally, the GVK Team regularly offers training seminars to insurance carriers, self insurers and to third party administrators. The seminars focus on recent trends in NY No-Fault law, proper claims handling and how to comply with the complex New York No-Fault statute and regulations.
The Team’s expertise lies in managing a substantial caseload of No-Fault matters for both traditional insurance companies and self-insured entities in a high-volume environment. The Team’s proactive insights and expertise make them influential contributors in the field of No-Fault Litigation.
On December 29, 2023, Governor Hochul vetoed the latest version of the “Grieving Families Act,” which the State Legislature passed in June 2023. She did so the day after the Legislature delivered the Act to her for consideration, despite intense lobbying efforts by organizations led by the Plaintiffs’ bar. It was reported that she declined to meet with the families of wrongful death claimants last week to discuss the legislation. The original Act was vetoed in January 2023.
The Acts attempted to expand damages recoverable in wrongful death suits where recovery is presently limited to the “pecuniary losses” of a decedent’s distributees, such as the decedent’s future lost earnings. Although case law allows recovery for a decedent’s pre-death conscious pain and suffering and for loss of parental support, guidance, assistance and inheritance, these damages are often difficult to prove. The original Act sought to permit a decedent’s survivors (vaguely defined as “close family members”) to recover for their own “emotional anguish” or pain and suffering and to extend the applicable statute of limitations from 2 to 3.5 years. It also sought to take immediate, retroactive effect in all pending wrongful death suits.
In vetoing the original bill, Governor Hochul noted her concerns with the scope, financial impact and other “significant unintended consequences” of the Act, including the expansion of the beneficiary class, and the impact of increased litigation, insurance and health care costs on lower-income families, small businesses, health care workers and municipal hospitals. She called for serious evaluation and study of the financial impact of these expansive changes on the statute. She agreed with opponents of the Act that NY State’s constitutional prohibition against limits on jury damage verdicts must be studied and considered. This refers to the fact that although most states allow for the expanded classes of beneficiaries and types of damage claims the Act sought to add, they all also have laws capping damage verdicts, which NY State does not.
The modifications made to the original Act to purportedly address the Governor’s concerns were limited and did not provide any indication that a “serious evaluation and study of the Act’s financial impact” on businesses, hospitals and municipalities had been conducted. The Plaintiffs’ bar has vowed to introduce yet another bill seeking to codify the attempted expansion of NY’s Wrongful Death Statute in the next Legislative session. We will continue to monitor their efforts.
Should you have any questions, please do not hesitate to contact Howard Klar or William Parra.
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.”
* * *
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.
