• Christopher Nucifora, managing partner of KDV’s New Jersey office, has been quoted in a Law360 article by Allison Grande published November 12, 2015. In the article, Christopher comments on the implications of the FCC’s action involving hitting Cox Communications with a fine over its alleged failure to secure data belonging to a relatively small number of customers, signaling that it won’t hesitate to police the data security practices of companies regardless of the scope or amount of harm caused by an intrusion.

    “The FCC still does not provide a detailed ‘checklist’ describing the ‘every reasonable precaution’ standard,” said Christopher Nucifora, chairman of the technology practice group at Kaufman Dolowich & Voluck LLP “As such, for telecoms looking for more clarity, this settlement doesn’t provide it.”

  • Dec 3, 2015

    New York Marriott Downtown
    85 West Street
    New York , New York 10006

    Join KDV’s Michael Zigelman in attending the 2015 CLM New York Event.

    Overview: CLM New York brings together industry experts and thought leaders for sessions in three tracks — Insurance Coverage, Extra-Contractual Conference — The event of the year for professionals who work in these areas. Top insurance leaders and outside counsel will share their insights on challenges and issues on important industry topics. This interactive conference will give attendees an opportunity to network with their peers in detailed discussions from both claims and legal perspectives on a broad range of essential and timely topics.

    Cost: $99 (Fellows), $199 (Members)

    For more information and on-line registration, click here.

  • Nov 30, 2015

    By Michael L. Zigelman, Eric B. Stern and Alexana Gaspari

    Providing more clarity to New York Insurance Law’s notice/prejudice standards in the context of an insured’s default in an underlying lawsuit, a recent decision from New York’s Southern District states that an insurer’s time to disclaim coverage begins to run upon a finding of its insured’s default, and, moreover, an insurer has no obligation to try to vacate the default, as such activity may actually result in a waiver of the insurer’s right to disclaim.

    In late October, the Southern District, in deciding Montpelier U.S. Insurance Co., v. 240 MT. Hope Realty Co., et al., 2015 WL 6395949 (S.D.N.Y. Oct. 22, 2015), held that Montpelier U.S. Insurance Co. was statutorily estopped from disclaiming coverage for late notice under New York Insurance Law §3420(d)(2) because Montpelier delayed in disclaiming coverage to its insured based on late notice and the insured’s default.  Rather than disclaiming, Montpelier appointed defense counsel to attempt to vacate the default, without reserving rights.  Although the default was vacated by the trial court, the First Department subsequently reversed the vacateur.

    After the reversal of the vacateur, Montpelier disclaimed coverage.  The Southern District determined that the disclaimer was invalid as the insured’s initial default was, in and of itself, sufficient prejudice, thereby triggering Montpelier’s time to disclaim coverage. However, Montpelier delayed in disclaiming coverage, relying first on appointed defense counsel to vacate the default and relieve any prejudice.  Nonetheless, the Court found such reliance to be unreasonable.  Accordingly, the Court found that Montpelier was estopped from disclaiming coverage due to its delay.

    The Montpelier decision is important for two reasons – first, because it provides guidance on New York’s ever-changing landscape concerning late-notice disclaimers of coverage which are based on prejudice.  While the Montpelier Court relied on Insurance Law §3420(c)(2)(B) to rule that the initial default judgment, which was a determination of the insured’s liability, created an “irrebuttable presumption” of prejudice, the Montpelier Court did not appear to have considered Insurance Law §3420(c)(2)(C), which limits such “prejudice” to situations where the late notice “materially impairs” the ability of the insurer to defend the claim. According to the Montpelier Court, the insured’s default (and the subsequently-issued default judgment) was, in and of itself, sufficient material impairment so as to trigger Montpelier’s duty to disclaim coverage, notwithstanding those procedural remedies that were available which, if successfully implemented, may have resulted in the vacateur of the default, thereby alleviating the underlying prejudice.

    A second take-away from the Montpelier decision is the Court’s consideration of Montpelier’s failure to send a reservation of rights letter prior to assigning defense counsel as a basis to reject Montpelier’s argument.  Historically, reservation of rights letters did not protect insurers from statutory estoppel under §3420(d)(2).  See, Cent. Mut. Ins. Co. v. Willig, 29 F. Supp. 3d 112, 117 (N.D.N.Y. 2014) (“[A] reservation of rights letter has no relevance to the question whether the insurer has timely sent a notice of disclaimer of liability or denial of coverage.”).  This became a more important issue once New York adopted the “material prejudice” standard for notice, as an insurer would not necessarily know, upon receipt of notice from its insured, whether the lateness of the notice would rise to the level of “material prejudice,” so as to enable the insurer to deny coverage.  However, now, in light of the Montpelier holding, there is an opening for insurers to argue that, under certain circumstances (i.e. – when facing a potential late notice issue), a reservation of rights letter may be appropriate, and ultimately upheld, when an insurer needs additional time to determine whether it has been sufficiently prejudiced so as to avail itself to the late notice defense to coverage.

    Accordingly, despite the adverse decision as against Montpelier itself, the Court’s decision should be viewed as a positive development for insurers in general as it: (1) provides guidance as to the appropriateness and timeliness of a disclaimer of coverage for late/no notice upon default; (2) instructs that an insurer need not exhaust all remedies prior to disclaiming based on the default; and (3) holds that the default by the insured is deemed prejudice as a matter of law for purposes of satisfying New York’s Insurance Law.

    For more information on this matter, including learning about how KDV’s coverage attorneys can assist carriers with implementing and updating best practices, please contact Michael L. Zigelman, Eric B. Stern, or one of the other attorneys in KDV’s Global Insurance Litigation practice group.

  • Oct 28, 2015

    By Keith J. Gutstein and Jennifer E. Sherven

    Effective January 1, 2016, New York City employers with twenty (20) or more full-time employees in New York City must offer full-time employees the opportunity to use pre-tax earnings to purchase qualified transportation fringe benefits. The New York City Affordable Transit Act (“Affordable Transit Act”) defines full-time employees as those who work an average of thirty (30) hours per week.  Qualified transportation fringe benefits, which are defined under the IRS Code, include transit passes for transportation on mass transit to commute to or from a work location in New York City. Such benefits do not include qualified parking. Companies that are subject to the Affordable Transit Act may avoid providing such benefits if they demonstrate to the Department of Consumer Affairs (“DCA”) that offering qualified transportation fringe benefits causes financial hardship.

    Employers who violate the Affordable Transit Act may be subject to civil penalties of $100-$250 for a first violation, and $250 for each subsequent violation. Employers will have ninety (90) days to cure a first violation before any penalty is imposed.  Furthermore, due to a six-month grace period, penalties will not be imposed until July 1, 2016.

    The DCA is in the process of providing guidance to employees concerning the Affordable Transit Act. This guidance is anticipated to include a form employers may use to document compliance with the Affordable Transit Act.

  • Oct 28, 2015

    Kaufman Dolowich & Voluck LLP (KDV) is pleased to announce that attorney Kevin J. O’Donnell, who has over 10 years of experience in premises liability litigation, recently prevailed on an issue of significant importance in premises liability litigation before New York State’s highest appellate court – the Court of Appeals. In order to clarify the important issue in New York premises liability law of what constitutes a “trivial defect” consolidated for appeal three cases in which summary judgment had been granted to defendants on the grounds that the defect causing the plaintiffs’ accidents and injuries constituted non-actionable “trivial defects.” Of the three cases, the only case affirmed on appeal was that defended by Kevin O’Donnell. The Court’s decision highlighted the record established at the trial stage by Mr. O’Donnell proving the defect was, in fact, trivial and not actionable under New York law.

    In April 2009 plaintiff Leonard Hutchinson allegedly tripped and fell over a cylindrical metal object, which he said looked as though it had been “screwed on in the concrete” in the sidewalk adjacent to 1413 Sheridan Avenue, Bronx, New York. Pursuant to Section 7-210 of the New York City Administrative Code, the owner of the building, Sheridan Hill House Corp. (“Sheridan”), a not-for-profit corporation, which provides housing and social services to the disabled, was responsible for maintaining the sidewalk in reasonably good condition. The Supreme Court Bronx County granted Sheridan’s motion for summary judgment, which the Appellate Division, First Department affirmed in a 3-2 split decision. The Appellate Division held that Sheridan established both that it lacked actual or constructive notice of the defect, and further that color photographs submitted in support of its motion showing that the object projected just 3/16 inch above the surface of the sidewalk and measured 5/8 inch in diameter established as a matter of law that the alleged defect constituted a non-actionable “trivial defect”.

    Under the “double dissent” rule, plaintiff appealed as of right to the New York State Court of Appeals. Following oral argument, the Court of Appeals held that Sheridan was the only one of the three defendants that met its prima facie burden of establishing the defect’s trivial nature as a matter of law.

    The Decision in Hutchinson v. Sheridan Hill House Corp., __ N.Y.3d ___ (2015), provides much needed amplification to the Court’s earlier holding in Trincere v. Cty.of Suffolk, 90 N.Y.2d 976, 977 (1997). Specifically, the Court explains that “the trivial defect doctrine is best understood with our well-established summary judgment standard in mind… A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make out a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact.”

    Having found Sheridan met its prima facie burden by virtue of the color photographs showing ruler measurements of the object, the Court rejected plaintiff’s contention that the characteristics of the defect, particularly its abrupt edge in an otherwise pristine sidewalk, magnified the hazard it presented. Specifically, the Court held that that the question “is not whether the defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.” Applying these factors to the instant case, the Court held Sheridan met its burden, which plaintiff failed to overcome. Conversely, the Court, for different reasons, held that the evidence submitted by defendants in the other two consolidated appeals failed to satisfy the “trivial defect” test as a matter of law.

    Gino Zonghetti, co-managing partner of KDV’s New Jersey Office who works closely with Mr. O’Donnell in KDV’s maritime and general liability practice groups, said “This decision will likely stand as New York State’s seminal and most authoritative statement of the trivial defect doctrine for decades to come.”

    KDV attorneys have defended, including at trial, many premises liability cases brought by plaintiffs in numerous jurisdictions. The firm defends personal injury as well as property damage claims arising out of accidents and casualties occurring on commercial premises. The firm is regularly called upon to handle difficult cases involving serious injuries as well as to manage the insurance coverage issues associated with the cases. This Decision is an affirmation of KDV’s comprehensive, hands-on approach to defending these claims from inception to conclusion.


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Dean Herman and Hee Young Lee Join Kaufman Dolowich & Voluck as Partners in Firm’s Los Angeles Office; Senior Counsel and Three Associates Also Join LA Office

(June 3, 2013, Los Angeles, CA) — Kaufman Dolowich & Voluck, LLP (KDV), a leading national law firm, today announced that Dean B. Herman, who has more than 30 years of experience in insurance industry and business litigation, and Hee Young Lee, who has represented insurers and policyholders for more than a decade, have joined the firm as partners in its Los Angeles office. They will be accompanied by Craig D. Aronson as senior counsel and Steven S. Son, Andrew C. Johnson and Mikhaile P. Savary as associates.

Dean Herman defends and advises insurers and professionals on liability, first and third party insurance coverage issues, bad faith, and errors and omissions issues. His experience also includes sophisticated business and commercial litigation in state and federal trial and appellate courts on issues across a broad range of industry sectors and a diversified array of issues, ranging from IP to employment and contract disputes, executive risk exposures,  entertainment, wine industry,  as well as professional liability claims involving lawyers, insurance agents and brokers, real estate agents and brokers, directors and officers, business managers, financial advisors among others. He has also served as an expert witness and consultant and acts as a mediator in complex insurance coverage and other disputes. He comes to Kaufman Dolowich & Voluck from Mendes & Mount where he was a partner in the firm’s Los Angeles office.

Hee Young Lee also joins from Mendes & Mount, where she was a partner and her practice is focused on advising and defending insurers and their insureds in federal and state courts in matters involving intellectual property, environmental, construction defect, agribusiness, privacy, and personal lines claims. She also defends insureds in professional liability claims.

“Dean and Hee Young are preeminent insurance attorneys who will enhance not only our West Coast but our national presence in this field, which has always been a core strength of the firm,” said Ivan J. Dolowich, co-managing partner of KDV.  “This group enhances our practice on the West Coast providing insurance coverage, business litigation, professional liability, labor & employment and financial services for our clients.”

Herman will also be working out of the KDV San Francisco office due to the considerable work he does in the Bay area for clients based there.  He earned his B.A.  from California State University at Fullerton, his J.D. from Loyola Law School and his Master of Laws from the University of California, Berkeley. He is admitted to practice in California, and regularly handles matters in many other states either on a pro hac vice basis or an advisory or national coordinating counsel basis.

Lee will have a leadership role in the Los Angeles office. She earned her B.A. from the University of California, Los Angeles and her J.D. from the University of California Hastings College of the Law. She is admitted to practice in California, and also handles insurance coverage matters in many other states.

“Hee Young and I are excited to be joining a firm whose key practice areas are so compatible with our strengths,” said Herman. “We look forward to the opportunity to helping to grow KDV’s already strong insurance, professional liability and litigation practices on the West Coast and nationally.”

Craig Aronson, who has been practicing law for 30 years and whose practice focuses on coverage and professional liability, joins KDV from Gaglione, Dolan & Kaplan (Los Angeles) where he was a partner. He is admitted to practice in California. Aronson graduated summa cum laude and Phi Beta Kappa from Dartmouth College and earned his law degree from the University of Chicago Law School.

Steven Son, Andrew Johnson and Mikhaile Savary are litigation attorneys joining KDV from Mendes & Mount where they were all associates. Son, admitted to practice in California, earned his B.A. from the University of California, Los Angeles and his J.D. from the University of Illinois College of Law.  Johnson, admitted to practice in California and Nevada, received his B.F.A. from the University of Kansas and his J.D. from St. John’s University School of Law. Savary, admitted to practice in California and New York, received his B. A. from Cornell University and his J.D. from Columbia Law School.

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