December 2017 Nash Connors, P.C. Newsletter
The attorneys and staff at Nash Connors, P.C. have had a great year.  We've added an attorney, two paralegals and a legal assistant and look forward to our continued growth in 2018.  We cannot thank our clients and business partners enough for the support we've gotten this year.  We sincerely hope that you have a wonderful holiday season and look for the next newsletter in the new year!
News from Nash Connors, P.C. 

Matt Louisos and his wife Marisa recently welcomed their second child, Ellie Monroe Louisos, who weighed 6 pounds, 8 ounces and was 20 inches long.  Both mom and baby are home and doing very well.

Michael Pretsch led Nash Connors, P.C.'s efforts in a toy drive hosted by the Bar Association of Erie County's Young Lawyers Committee.  In a little over a week, the office was able to collect and donate over fifty toys!  The Young Lawyers Committee will be distributing these toys throughout Erie County during the holiday season.
Case Law Update

IMPROPER SERVICE:  An appellate court held that defendant waived his right to move to dismiss a Summons with Notice for lack of personal jurisdiction (based on improper service) because he waited more than sixty days to make the motion.  More importantly, the court said that because plaintiff waited more than two months, he could not challenge the trial court's decision to grant plaintiff additional time to serve the Complaint pursuant to CPLR 306-b ( Doe vs D'Angelo).

HE MADE HOW MUCH?:  A trial court's ruling that required an IME physician to produce all billing and payment records for examinations performed by all insurance companies and attorneys for the past five years was affirmed by an appellate court ( Porcha vs Binette, et al.). 

PRACTICE TIP: This decision is important because it expands on the amount of billing information to which a plaintiff's attorney is entitled.  Previously, case law had only required the IME physician to turn over billing records for the insurance company involved in the trial.  Now, it appears that plaintiff is entitled to all billing information for every insurance client. 

LABOR LAW:  Plaintiff was injured when a bundle of rebar fell from a crane and hit him.  The appellate court said that he had established a Labor Law § 240(1) claim because (1) the rebar was being hoisted or secured and (2) the rebar fell because of the absence of a safety device to guard against a gravity-related risk.  In addition, the court dismissed defendant's sole proximate cause argument because plaintiff was assisted by other laborers in loading the rebar ( Flowers vs HarborCenter Development, LLC).

UNSUCCESSFUL SISYPHUS (aka LABOR LAW PT II): Plaintiff was a stone tender using nylon straps to move an 8 by 4 foot, 500-600 pound stone. As he and his supervisor attempted to move the stone, the supervisor lost his grip and the stone fell 18-20 inches onto plaintiff's foot. Defendants (general contractors on the project) moved for summary judgment on plaintiff's Labor Law §§ 200 and 240(1) claims. The appellate court found that on the Labor Law § 200 claim, defendants successfully showed that the accident arose out of the manner of plaintiff's employer's work, and the general contractors did not exercise more than general supervision over the work site. On the Labor Law § 240(1) claim, the defendants successfully showed that the granite stone did not fall because of the absence or inadequacy of a safety devices, and plaintiff failed to raise a triable issue of fact ( Portalatin vs Tully Construction Co.).  

BUT ALL I DID WAS OWN THE PROPERTY! The Court of Appeals recently reversed the granting of summary judgment to defendant parking garage where plaintiff tripped and fell over a cord attached to a barrel.  Plaintiff presented no admissible evidence to establish that defendant, which owned the barrel, either created or had notice of the existence of the cord short of circumstantial evidence which amounted to no more than unsubstantiated allegations.  Nevertheless, this was enough to overturn the lower court's granting of summary judgment to defendant ( Lau vs Margaret E. Pescatore Parking, Inc., et al.).

INFANT DART OUT: An infant-plaintiff darted out on his bike in front of defendant's car. Defendant moved for summary judgment arguing that plaintiff's actions were the sole proximate cause of the accident. Plaintiff did not oppose the motion, but Supreme Court still denied it. On appeal, the appellate division affirmed the decision, stating that although the surveillance video of the accident confirms that plaintiff was negligent for darting out into traffic, defendant failed to establish prima facie that she was not also negligent. The Court stated that defendant had a duty to see what was there to be seen and use reasonable care to avoid the accident, and defendant's testimony about looking away from plaintiff raised questions on that point ( Ellis vs Vazquez).

DECK THE HALLS? Plaintiff, while shopping, tried to remove garland from a decorative tree, when it caused other decorations to fall off the tree.  Plaintiff tried to avoid the falling items, but ended up falling herself.  She testified that she did not trip on anything, nor was she struck by anything falling off of the tree.  Defendant successfully moved for summary judgment, arguing that plaintiff's fall was not reasonably foreseeable and, therefore, it had no duty.  The appellate court affirmed, stating "nothing about the nature of packages of garland falling from above would lead a person to foresee said garland knocking a person to the ground" ( Parke vs Dollar Tree).

CONSTRUCTIVE NOTICE:  An appellate court held that there was a question of fact on the issue of constructive notice when there was a ten hour interval between when a sidewalk was last treated for snow/ice and when plaintiff fell.  The court also said that plaintiff's description that the ice was two inches thick, "bumpy and wavy" and three to four feet long was relevant on the constructive notice issue ( Calvitti vs 40 Garden, LLC). 

DO THE WAVE: Plaintiff was a pedestrian who approached the crosswalk of a four lane road. Plaintiff approached and was waved on by the driver of a bus stopped at the stop sign. Plaintiff crossed in front of the stopped bus, but was struck by a vehicle that failed to stop at the stop sign. Plaintiff sued the drivers of both the bus and the car, and the bus driver moved for summary judgment. The appellate court held that a duty may arise from negligent acts that induce reliance, but the question is whether defendant's conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant not acted. The Court held that even if plaintiff was injured from relying on the gesture of the bus driver, the other driver's conduct of failing to stop was a superseding, intervening act that breaks the causal nexus (Esen vs Narian).

INJURED FIREFIGHTER:  A firefighter was injured after slipping on an unknown wet substance on a stairway while responding to a fire in defendant's residential apartment building. The appellate court dismissed plaintiff's claims for common law negligence and violation of General Municipal Law § 205-a on the basis that plaintiff could not identify  the substance or the duration for which it existed. Furthermore, the Court held that the certificate of occupancy, which indicated that the building was in compliance with all applicable statutes, codes and ordinances, shifted the burden to plaintiff to show the stairway was defective in some other manner (Viselli vs The Riverbay Corp.).

INJURED BY A POLICE OFFICER: A police officer who struck p laintiff was entitled to the reckless standard for emergency vehicles despite the fact that he mistakenly believed that plaintiff was stopping her vehicle when he proceeded to pass through the red light 10 miles per hour over the speed limit. That the police vehicle's lights and siren were not activated was not material because defendant was not required to activate either of these devices in order to be entitled to the statutory privilege of passing through a red light (Lewis vs City of New York).  
SO WHAT HAPPENED??? The decedent, a podiatric surgeon, arrived at a hospital to perform surgery. She parked in the physician parking lot at 6:52 a.m., was found in her vehicle at 6:00 p.m., and was pronounced dead at 6:28 p.m. An autopsy showed she died of natural causes. The executor of the decedent's estate commenced an action against the hospital, claiming it created a dangerous condition and failed to provide adequate security to people on its premises. The hospital moved for and was granted summary judgment after showing that it did not breach a duty of care to the decedent (Carney vs State Island Univ. Hosp.).  
MVA PROXIMATE CAUSE: Plaintiffs' decedent was riding his motorcycle while lane-splitting and weaving in and out of lanes at a rate of speed in excess of other vehicles on the road, in stop and go traffic, when he struck the rear of a motor vehicle in the center lane. Decedent was thrown from his motorcycle to the left lane, rolled under defendants' tractor-trailer, and was run over by the tractor-trailer's rear wheels. In dismissing the action, the Appellate Division, First Department held that even though the tractor trailer was unlawfully in the left lane at the time of the accident there is no evidence in the record that would support a finding that the statutory violation was a proximate cause of the accident. The Court further held that, the presence of the tractor-trailer in the left lane merely furnished the condition that led to decedent's death, and was not a proximate cause of the accident (Caro vs Chesnick). 

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