Benjamin Bakula

​Lori Semlies (Partner-White Plains, NY) and Judy Selmeci (Partner-New York, NY) successfully resolved a complex case in the Supreme Court of the State of New York, Ulster County, on behalf of Wilson Elser’s nursing home client in the first case against a nursing home in New York State related to Covid to go to verdict, and without the availability of the state immunity statute. The plaintiff asserted causes of action for negligence, gross negligence, violation of New York State Public Health Law, and wrongful death. After precluding plaintiff’s only evidence on how the decedent may have contracted Covid based upon hearsay, the court directed a verdict for the defendant on the claim of failing to prevent the transmission of Covid. The remainder of the case intended to be advanced by the plaintiff was that our client was negligent in failing to perform more blood tests to identify the patient’s deteriorating condition before it became too severe, ultimately leading to his death. However, the plaintiff’s expert proved less committed to this negligence theory than plaintiff’s counsel. Lori's rapid-fire questioning during cross-examination elicited key concessions from the plaintiff's expert, substantially undermining the plaintiff's case. The expert acknowledged that there was no standard of care, even by January 2021, that required additional blood tests for a Covid-positive patient and that the decision to order such testing rested with the treating physicians' clinical judgment. The expert also made a critical concession on causation. Despite this testimony, the trial court “reserved decision” on Wilson Elser’s motion for a directed verdict and sent the case to the jury. The jury returned a verdict for the plaintiff, contrary to the expectations of both the parties and the court. Lori then enlisted New York office partner and appellate specialist Judy Selmeci to prepare the post-trial motion. On the motion, when presented squarely with the deficiencies in the plaintiff's proof, the trial court concluded that our nursing home client was entitled to a directed verdict. The court set aside the jury's verdict, dismissed the action based on the plaintiff's failure to meet the burden of proof at trial, and entered judgment for the defendants.

Dara S. Elpren (Associate-New York, NY) was recently appointed to serve on the New York City Bar’s Fashion Law Committee. Her term commenced on August 1, 2026, and will run until July 2029. In her committee role, Dara will help shape law and public policy by drafting reports, commenting and testifying on legislation, and submitting briefs. She also will support the Bar’s sponsorship of continuing legal education and participate in public service projects.

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

Angelique Sabia-Candero (Associate-New York, NY) and Joseph Laird (Partner-White Plains, NY) obtained summary judgment in Kings County Supreme Court, Brooklyn, New York, on behalf of Wilson Elser’s sports club client in a premises liability action involving an allegedly defective trench drain grate. The plaintiff claimed she was injured while walking her kick scooter down the client’s driveway when its wheel allegedly became caught in a trench drain grate. She maintained that she felt the scooter stop before inexplicably losing consciousness. After regaining consciousness on the sidewalk, she noticed the drain grate for the first time and concluded that the scooter’s wheel had become lodged between the trench frame and grating cover. Critically, however, the plaintiff admitted that she never actually observed the alleged wheel entrapment.  Angelique and Joe moved for summary judgment seeking dismissal of the complaint, arguing that the plaintiff could not identify the cause of her fall without resorting to speculation. They also established an independent basis for dismissal on lack of notice, supported by the inspection findings of Wilson Elser’s expert, a professional engineer. The engineer determined that the one-inch gap identified by the plaintiff matched the size of prefabricated frame slots, was narrower than the typical drain grates required by the NYC Department of Environmental Protection, and that the grate was properly maintained, code-compliant, and not dangerous or defective. Although the plaintiff submitted an expert affirmation opining that the grate was unreasonably dangerous and violated various industry standards and regulations, the court rejected plaintiff’s counsel’s argument that the competing opinions created a “battle of the experts” requiring denial of summary judgment. The court found that the plaintiff’s expert relied on general and inapplicable rules and regulations rather than identifying any actual code or regulatory violations, and therefore failed to raise a triable issue of fact. Accordingly, the court granted summary judgment in full, dismissing the plaintiff’s complaint.

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

Valerie Kellner (Of Counsel-Philadelphia, PA) was reelected as a Senior Director for the Federation of Defense and Corporate Counsel (FDCC) at the 2026 Annual Meeting. She currently serves on the Board of Directors and the Executive Committee. The FDCC is an invitation-only organization of lawyers who focus their practice on the defense of civil claims and representation of insurers and corporations. 

Peter Espey (Of Counsel-Madison, NJ) authored “New Jersey's Charitable Immunity Act: The Expanding Definition of 'Hospital Purposes,'” appearing in Law.com’s New Jersey Law Journal on August 11, 2026. The article examines the evolution of New Jersey’s Charitable Immunity Act, which establishes a $250,000 cap on damages for nonprofits organized for “hospital purposes,” and grants complete immunity from negligence claims to charitable or educational nonprofit organizations. Peter explores how the New Jersey Supreme Court has expanded the definition of a “hospital,” bringing an increasing number of health care entities that traditionally would not have been considered hospitals within the Act’s damages cap rather than granting them complete immunity. He explains that recent case law suggests that nonprofit health care entities outside the traditional hospital model generally qualify for the $250,000 damages cap but face greater difficulty establishing entitlement to complete immunity. Looking ahead, Peter suggests that the continued evolution of the health care industry may further broaden the application of the Act, observing: “As hospital systems continue to consolidate and offer a broader range of health care services to their patients, the number of entities qualifying as organized for ‘hospital purposes’ will likely increase.”

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Dara S. Elpren (Associate-New York, NY) was recently appointed to serve on the New York City Bar’s Fashion Law Committee. Her term commenced on August 1, 2026, and will run until July 2029. In her committee role, Dara will help shape law and public policy by drafting reports, commenting and testifying on legislation, and submitting briefs. She also will support the Bar’s sponsorship of continuing legal education and participate in public service projects.

​Lori Semlies (Partner-White Plains, NY) and Judy Selmeci (Partner-New York, NY) successfully resolved a complex case in the Supreme Court of the State of New York, Ulster County, on behalf of Wilson Elser’s nursing home client in the first case against a nursing home in New York State related to Covid to go to verdict, and without the availability of the state immunity statute. The plaintiff asserted causes of action for negligence, gross negligence, violation of New York State Public Health Law, and wrongful death. After precluding plaintiff’s only evidence on how the decedent may have contracted Covid based upon hearsay, the court directed a verdict for the defendant on the claim of failing to prevent the transmission of Covid. The remainder of the case intended to be advanced by the plaintiff was that our client was negligent in failing to perform more blood tests to identify the patient’s deteriorating condition before it became too severe, ultimately leading to his death. However, the plaintiff’s expert proved less committed to this negligence theory than plaintiff’s counsel. Lori's rapid-fire questioning during cross-examination elicited key concessions from the plaintiff's expert, substantially undermining the plaintiff's case. The expert acknowledged that there was no standard of care, even by January 2021, that required additional blood tests for a Covid-positive patient and that the decision to order such testing rested with the treating physicians' clinical judgment. The expert also made a critical concession on causation. Despite this testimony, the trial court “reserved decision” on Wilson Elser’s motion for a directed verdict and sent the case to the jury. The jury returned a verdict for the plaintiff, contrary to the expectations of both the parties and the court. Lori then enlisted New York office partner and appellate specialist Judy Selmeci to prepare the post-trial motion. On the motion, when presented squarely with the deficiencies in the plaintiff's proof, the trial court concluded that our nursing home client was entitled to a directed verdict. The court set aside the jury's verdict, dismissed the action based on the plaintiff's failure to meet the burden of proof at trial, and entered judgment for the defendants.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

Angelique Sabia-Candero (Associate-New York, NY) and Joseph Laird (Partner-White Plains, NY) obtained summary judgment in Kings County Supreme Court, Brooklyn, New York, on behalf of Wilson Elser’s sports club client in a premises liability action involving an allegedly defective trench drain grate. The plaintiff claimed she was injured while walking her kick scooter down the client’s driveway when its wheel allegedly became caught in a trench drain grate. She maintained that she felt the scooter stop before inexplicably losing consciousness. After regaining consciousness on the sidewalk, she noticed the drain grate for the first time and concluded that the scooter’s wheel had become lodged between the trench frame and grating cover. Critically, however, the plaintiff admitted that she never actually observed the alleged wheel entrapment.  Angelique and Joe moved for summary judgment seeking dismissal of the complaint, arguing that the plaintiff could not identify the cause of her fall without resorting to speculation. They also established an independent basis for dismissal on lack of notice, supported by the inspection findings of Wilson Elser’s expert, a professional engineer. The engineer determined that the one-inch gap identified by the plaintiff matched the size of prefabricated frame slots, was narrower than the typical drain grates required by the NYC Department of Environmental Protection, and that the grate was properly maintained, code-compliant, and not dangerous or defective. Although the plaintiff submitted an expert affirmation opining that the grate was unreasonably dangerous and violated various industry standards and regulations, the court rejected plaintiff’s counsel’s argument that the competing opinions created a “battle of the experts” requiring denial of summary judgment. The court found that the plaintiff’s expert relied on general and inapplicable rules and regulations rather than identifying any actual code or regulatory violations, and therefore failed to raise a triable issue of fact. Accordingly, the court granted summary judgment in full, dismissing the plaintiff’s complaint.

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

Valerie Kellner (Of Counsel-Philadelphia, PA) was reelected as a Senior Director for the Federation of Defense and Corporate Counsel (FDCC) at the 2026 Annual Meeting. She currently serves on the Board of Directors and the Executive Committee. The FDCC is an invitation-only organization of lawyers who focus their practice on the defense of civil claims and representation of insurers and corporations. 

Peter Espey (Of Counsel-Madison, NJ) authored “New Jersey's Charitable Immunity Act: The Expanding Definition of 'Hospital Purposes,'” appearing in Law.com’s New Jersey Law Journal on August 11, 2026. The article examines the evolution of New Jersey’s Charitable Immunity Act, which establishes a $250,000 cap on damages for nonprofits organized for “hospital purposes,” and grants complete immunity from negligence claims to charitable or educational nonprofit organizations. Peter explores how the New Jersey Supreme Court has expanded the definition of a “hospital,” bringing an increasing number of health care entities that traditionally would not have been considered hospitals within the Act’s damages cap rather than granting them complete immunity. He explains that recent case law suggests that nonprofit health care entities outside the traditional hospital model generally qualify for the $250,000 damages cap but face greater difficulty establishing entitlement to complete immunity. Looking ahead, Peter suggests that the continued evolution of the health care industry may further broaden the application of the Act, observing: “As hospital systems continue to consolidate and offer a broader range of health care services to their patients, the number of entities qualifying as organized for ‘hospital purposes’ will likely increase.”

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Dara S. Elpren (Associate-New York, NY) was recently appointed to serve on the New York City Bar’s Fashion Law Committee. Her term commenced on August 1, 2026, and will run until July 2029. In her committee role, Dara will help shape law and public policy by drafting reports, commenting and testifying on legislation, and submitting briefs. She also will support the Bar’s sponsorship of continuing legal education and participate in public service projects.

​Lori Semlies (Partner-White Plains, NY) and Judy Selmeci (Partner-New York, NY) successfully resolved a complex case in the Supreme Court of the State of New York, Ulster County, on behalf of Wilson Elser’s nursing home client in the first case against a nursing home in New York State related to Covid to go to verdict, and without the availability of the state immunity statute. The plaintiff asserted causes of action for negligence, gross negligence, violation of New York State Public Health Law, and wrongful death. After precluding plaintiff’s only evidence on how the decedent may have contracted Covid based upon hearsay, the court directed a verdict for the defendant on the claim of failing to prevent the transmission of Covid. The remainder of the case intended to be advanced by the plaintiff was that our client was negligent in failing to perform more blood tests to identify the patient’s deteriorating condition before it became too severe, ultimately leading to his death. However, the plaintiff’s expert proved less committed to this negligence theory than plaintiff’s counsel. Lori's rapid-fire questioning during cross-examination elicited key concessions from the plaintiff's expert, substantially undermining the plaintiff's case. The expert acknowledged that there was no standard of care, even by January 2021, that required additional blood tests for a Covid-positive patient and that the decision to order such testing rested with the treating physicians' clinical judgment. The expert also made a critical concession on causation. Despite this testimony, the trial court “reserved decision” on Wilson Elser’s motion for a directed verdict and sent the case to the jury. The jury returned a verdict for the plaintiff, contrary to the expectations of both the parties and the court. Lori then enlisted New York office partner and appellate specialist Judy Selmeci to prepare the post-trial motion. On the motion, when presented squarely with the deficiencies in the plaintiff's proof, the trial court concluded that our nursing home client was entitled to a directed verdict. The court set aside the jury's verdict, dismissed the action based on the plaintiff's failure to meet the burden of proof at trial, and entered judgment for the defendants.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

Angelique Sabia-Candero (Associate-New York, NY) and Joseph Laird (Partner-White Plains, NY) obtained summary judgment in Kings County Supreme Court, Brooklyn, New York, on behalf of Wilson Elser’s sports club client in a premises liability action involving an allegedly defective trench drain grate. The plaintiff claimed she was injured while walking her kick scooter down the client’s driveway when its wheel allegedly became caught in a trench drain grate. She maintained that she felt the scooter stop before inexplicably losing consciousness. After regaining consciousness on the sidewalk, she noticed the drain grate for the first time and concluded that the scooter’s wheel had become lodged between the trench frame and grating cover. Critically, however, the plaintiff admitted that she never actually observed the alleged wheel entrapment.  Angelique and Joe moved for summary judgment seeking dismissal of the complaint, arguing that the plaintiff could not identify the cause of her fall without resorting to speculation. They also established an independent basis for dismissal on lack of notice, supported by the inspection findings of Wilson Elser’s expert, a professional engineer. The engineer determined that the one-inch gap identified by the plaintiff matched the size of prefabricated frame slots, was narrower than the typical drain grates required by the NYC Department of Environmental Protection, and that the grate was properly maintained, code-compliant, and not dangerous or defective. Although the plaintiff submitted an expert affirmation opining that the grate was unreasonably dangerous and violated various industry standards and regulations, the court rejected plaintiff’s counsel’s argument that the competing opinions created a “battle of the experts” requiring denial of summary judgment. The court found that the plaintiff’s expert relied on general and inapplicable rules and regulations rather than identifying any actual code or regulatory violations, and therefore failed to raise a triable issue of fact. Accordingly, the court granted summary judgment in full, dismissing the plaintiff’s complaint.