April 25, 2022
And the beat goes on as we are pleased to report several recent successes by our attorneys in both New Jersey and New York: securing a defense verdict in a personal injury case arising from a motor vehicle accident, obtaining summary judgment in an insurance coverage matter regarding cancellation of auto coverage, achieving appellate reversal of a trial court order granting a plaintiff summary judgment on a New York Labor Law 240 claim, and obtaining summary judgment in favor of a defendant in a premises liability case.

Trials are back in full swing. HKMP attorney Jenna Clemente recently secured a no cause jury verdict in a Middlesex County motor vehicle case involving two plaintiffs. Our client conceded liability and fought the case on damages only. Both plaintiffs were subject to the verbal threshold. They were each in their 30s at the time of the accident and underwent chiropractic treatment for a year following the accident. Plaintiffs’ expert at trial was a pain management physician who testified that each plaintiff would require significant future medical procedures including injections, ablations, and surgery. While the damage to defendant’s vehicle was significant, HKMP successfully argued the damage to defendant’s vehicle was not indicative of the minimal damage to Plaintiff’s own vehicle. The defense medical expert opined that the bulges sustained by each plaintiff were the result of age degeneration but acknowledged that a bulge was a permanent injury. HKMP successfully convinced the jury that plaintiffs were not permanently injured due to the accident and the jury found in favor of the defendant.
Jury selection in this matter was conducted remotely via Zoom. The empaneled jury was brought to the courthouse to attend trial in-person. The judge, attorneys, and plaintiffs were in-person for the entirety of the trial. The expert witnesses’ testimony on behalf of all parties was presented via de bene esse video. 

HKMP attorney Michael A. Cifelli obtained summary judgment on behalf of an insurance carrier, on a claim seeking coverage by a former insured. The policy had two segments: an Auto segment and a Home segment. In March of 2019, the plaintiff, a former insured, failed to make a payment on the Auto segment. The carrier sent notices according to New Jersey’s statutory scheme, which gave the plaintiff until April 5, 2019, to make a payment to continue the Auto segment. The notice also stated that if the premium payment was not honored by the plaintiff’s financial institution, the Auto segment would be cancelled effective April 5, 2019. The plaintiff made a payment on April 5, 2019. The following week, the plaintiff learned her payment would not be honored by her financial institution. The plaintiff contacted her independent agent on April 11, 2019, to advise that the April 5, 2019, payment would not be honored. The plaintiff alleged her agent advised her to come to the office on Monday, April 14, 2019, to make a payment.
The plaintiff’s husband went to her agent’s office on April 14, 2019, tendered a premium payment via a credit card check and left. Approximately a half hour later, the plaintiff and her husband were in a single vehicle accident. The agent asserted that the payment could not be processed due to a faulty routing number but by the time it was rejected, they could not contact the plaintiff. The plaintiff claimed the carrier accepted the pre-accident payment, that it was processed on April 15, 2019, due to the late afternoon payment on April 14th and by doing so, the carrier effectively waived its cancellation. Plaintiff claimed her payment was accepted by the carrier without any communication that the Auto segment was cancelled, and that the carrier did not offer a refund of the payment. Therefore, she argued the carrier’s conduct justified an inference of a waiver.
The Court found that the overwhelming evidence proved a post-accident credit card payment on April 15, 2019, and that the payment was applied to the Home segment by the carrier, which was still active. The Court noted that the plaintiff admitted to knowing the Auto segment would cancel as of April 5, 2019, when she became aware that her payment would not be honored. and she made no effort to contact the carrier before or after the April 14, 2019 accident.
Further, the Court agreed with the carrier that because the policy specifically stated that a refund of a payment made toward a cancelled policy was not a condition of cancellation, the insured could not rely on a lack of refund as conduct giving rise to an inference that the carrier waived its cancellation. The Court also found that the cancellation notice was statutorily compliant both in substance and in manner of service. Because the cancellation was not waived by the carrier, the Auto segment was cancelled as of April 5, 2019, and there was no coverage for the April 14, 2019, motor vehicle accident.

HKMP attorney Stephen Donahue obtained a decision from the New York Appellate Division, First Department, reversing a trial court order that granted the plaintiff’s motion for summary judgment on a Labor Law 240 claim. HKMP’s clients were the owner and general contractor for a hotel under construction in Brooklyn, New York. The plaintiff was an employee of one of the subcontractors. The appellate court agreed with HKMP's argument that the plaintiff’s deposition testimony and prior statements he made to his supervisor created material questions of fact regarding the cause of plaintiff’s accident that required jury determination.
The ruling is significant because Labor Law 240 generally imposes absolute liability on owners and general contractors without regard to any comparative negligence on the part of the plaintiff. In addition, interest runs from the date of entry of judgment on liability i.e., the date the motion court granted the plaintiff’s motion for summary judgment.

HKMP attorney Eric J. Koplowitz obtained summary judgment for the firm’s client in a case venued in New York Supreme Court, Kings County (Brooklyn) with significant exposure. Plaintiff slipped and fell on two different dates in the same area of the building where she worked. The firm’s client, a not-for-profit company, provided janitorial services at the building pursuant to a contract with the federal government. Plaintiff underwent two arthroscopic knee surgeries and a total knee replacement. The main liability issue was whether the client owed a duty to plaintiff under the Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 (2002) line of cases and whether the client “launched a force or instrument of harm” by creating or exacerbating the condition which caused plaintiff’s accidents. Plaintiff alleged the client’s improper placement of mats caused her accident. HKMP elicited testimony at plaintiff’s deposition establishing her falls were caused by the floor material itself, not due to any condition caused by HKMP’s client. Plaintiff testified the floor was dry at the time of both accidents. The court agreed with HKMP that the client owed no duty to the plaintiff because the accidents had nothing to do with the client’s performance of its janitorial services or the alleged improper placement of mats.
As always, if you have any questions regarding any of the cases in this issue of Case Alerts, or if HKMP can be of service to you, then please contact us at or 973-912-5222.
Attorney Advertising Disclaimer: This publication is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship in a particular matter. 
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