Please enjoy this newsletter from Nash Connors, P.C.
February 2017 Nash Connors, P.C. Newsletter
Last month we told you that parts of Western New York got two feet of snow in the one night.  Now we are enjoying weather in the 50s!  That can only mean that spring is around the corner.  As you dig out those rain boots and umbrellas from the closet, please enjoy this February newsletter from Nash Connors, P.C.!
Auto & Truck Claims, Accidents, and Litigation CLE

The New York State Bar Association has invited Jim Nash to speak at its CLE program entitled Auto & Truck Claims, Accidents, and Litigation about discovery issues.  The CLE will be held in Buffalo on April 21, 2017.  Please feel free to contact Jim for further information on the seminar.
Case Law Update

WHO NEEDS A DRIVER'S LICENSE?  The general rule in a negligence case is that it is not relevant (and no proof is presented to the jury) that a person involved in a car accident does not have a driver's license.  The Fourth Department recently held that the issue is relevant in a negligent entrustment case.  In particular, the Court said that a plaintiff may tell the jury that a person renting a car did not have a driver's license and that the car rental agency knew, or should have known, this fact ( Graham v Jones, et al.).

PRACTICE TIP: Two appellate justices dissented from this opinion.  They argued that there was a long-standing history of precluding any reference to the fact that a person did not have a driver's license.  The rationale is that the DMV issues licenses for regulatory purposes and is not an opinion on how well a person can operate a vehicle.  This case now will automatically go to the Court of Appeals, which will likely issue a ruling later this year.  Stay tuned...

The Fourth Department affirmed summary judgment to a snow plow contractor based on Espinal v Melville Snow Contractors, Inc.  In this case, the Court reasoned that the snow plow contractor did not owe plaintiff a duty of care despite having a contract that required 24/7 service because (1) the property owner could request additional services; (2) the property owner had the right to determine how much snow fell and to direct re-positioning of snow piles; and (3) the snow plow contractor had to submit logs to the property owner ( Waters v Ciminelli Dev. Co., et al.).

SHATTERED GLASS:  Plaintiff was a school teacher who was injured when the bottom sash of a window that she was closing broke and struck her.  The company that installed the glass moved for summary judgment by arguing that it was not in the stream of commerce so as to expose it to a strict products liability claim.  The Appellate Division disagreed and noted that this party also sold the glass windows to the general contractor and the sale of windows was a regular part of its business ( Casella v Ajay Glass & Mirror Co., Inc., et al.).

DOG BITE:  The Fourth Department reversed the trial court's denial of summary judgment to a municipality in a dog bite case.  The appellate court said that the Wyoming County Animal Shelter's knowledge that the dog had previously knocked a child down was insufficient to be on notice of a propensity to bite.  Further, and even more interesting, the Fourth Department said that the fact that the Wyoming County Health Department inspected the dog for rabies following another incident that occurred four months before the subject attack would not impute notice to the County or its shelter ( Blake v County of Wyoming).

PRACTICE TIP:  One would assume that notice of a dog's vicious propensities given to one office of a County government would be imputable all others.  The Fourth Department disagrees.  "A municipality often will have numerous employees assigned to separate and diverse agencies or departments and the record demonstrates that there is no overlap in the respective scopes of authority of the Health Department and the shelter."  Keep this in mind the next time a plaintiff attempts to establish notice against a governmental agency.

PROXIMATE CAUSE:  Plaintiff was injured by a passing car after stopping and exiting her car to assist a calf that had escaped a nearby enclosure.  The farm moved for summary judgment on the basis that its alleged negligence was not a proximate cause of plaintiff being hit by the car. The Fourth Department granted the motion by reasoning that the farm's negligence merely furnished the occasion for, but did not cause, plaintiff to enter the roadway.  In reversing the Appellate Division, the Court of Appeals explained that "proximate cause will be found lacking where the original negligent act merely furnished occasion for - but did not cause - an unrelated act to cause injuries not ordinarily anticipated" ( Hain v Jamison).

WATCH OUT FOR THAT STREET SWEEPER: In what had to be a messy accident, a street sweeper rear-ended plaintiff as she tried to avoid a vehicle that suddenly pulled out from the curb and cut her off. The driver of the street sweeper offered an affidavit in opposition to plaintiff's motion for summary judgment on negligence. He stated that before plaintiff's vehicle was cut off by the third vehicle, he was at least one car length behind her. He stated that because of the "size and shape" of the street sweeper, he was unable to stop in time to avoid the accident. The Second Department found that plaintiff established that the street sweeper's actions were the sole proximate cause of the accident, and defendant failed to rebut that showing ( Comas-Bourne v City of New York).

"SERVES" YOU RIGHT FOR WAITING:  Plaintiff attempted to personally serve defendant with a lawsuit, but did not do so within 120 days of filing the Complaint.  Defendant moved for dismissal for lack of personal jurisdiction for lack of service.  After defendant so moved, plaintiff requested additional time.  The Third Department held that plaintiff did not practice due diligence in serving  defendant.  The Court further held that plaintiff's time to serve should not have been extended in the interest of justice because plaintiff requested an extension of time after more than fifteen months had gone by since the 120-day timeline for service had lapsed ( Komanicky v Contractor).

VACATING A DEFAULT JUDGMENT:   The First Department ruled that a defendant could not vacate a default judgment for failing to update its address with the Secretary of State. The Court held that defendant's excuse that the incorrect address was a "mystery" was not a "reasonable excuse" and amounted to nothing more than an attempt to avoid service ( John v Arin Bainbridge Realty Corp., et al.).

EMERGENCY DOCTRINE:  The decedent-plaintiff was riding her bike when she was struck by the open door of a parked vehicle, fell to the ground, and was run over by a passing bus. The New York City Transit Authority moved for summary judgment based on the emergency doctrine.  The First Department declined to dismiss defendant from the lawsuit based on inconsistent statements made by the bus driver; that there was some indication that he driver saw the bicyclist prior to the first impact; and that the bus driver may have been negligent for having people stand in front of the white line, thereby blocking his view of the side of the road ( Powers v Min, et al.).

LABOR LAW: Plaintiff fell from a ladder while painting at defendants' cottage. He alleged the ladder "penetrated the ground" as the result of uneven, soft, and debris-filled ground. Labor Law 240 and 241(6) were properly dismissed under the exemption for single and two-family homeowners who do not direct or control the work. When analyzing whether Labor Law 200 was correctly dismissed, the Second Department noted that defendants did not create the soft and uneven ground, and further that a general awareness that the ground may have been in that state was insufficient to impute notice of the unsafe condition to defendants ( Dasilva v Nussdorf).

LABOR LAW, PT II:  In a Labor Law § 240(1) case, plaintiff was injured after falling from a ladder without being provided any safety equipment. The trial court issued a scheduling order and defendants failed to provide their disclosure within the deadline. The First Department reversed the trial court's denial of summary judgment even though plaintiff had not been deposed, the court held that defendants failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence and failed to identify any information that would be in the exclusive control of the plaintiff that would raise an issue of fact (Erken v McDonald's Corp.).

LABOR LAW, PT III:  After slipping on paint chips and dust on a scaffold on a construction site, plaintiff brought claims under Labor Law 241(6) and 240(1).  The First Department held that plaintiff established his entitlement under section 241(6) as it was unrefuted that his accident was caused by accumulations of debris, but affirmed the trial court's dismissal of his 240(1) claim as his accident was unrelated to the safety equipment being used; namely, the scaffolding (Serrano v Consolidated Edison Co. of N.Y. Inc.).

LABOR LAW, PT IV:  After falling from a height while working on construction site, plaintiff brought a lawsuit under Labor Law §241 (6).  Plaintiff subsequently moved for summary judgment by, arguing that, while he was given a safety harness, he was not given an adequate place to which it could be tied.  The First Department agreed, granted plaintiff summary judgment and noted that the only place he was instructed to tie off on was below his feet and in violation of OSHA guidelines (Anderson v MSG Holdings, L.P.).  

BROKEN ESCALATOR:  The Second Department granted summary judgment to Macy's Department Store after plaintiff was allegedly injured on a broken and protruding piece of metal while riding an escalator. Macy's established that it did not have actual or constructive notice of the condition by providing evidence that established that the escalator was regularly inspected (including the morning of the incident) and maintained, and that it had not received any prior complaints about the escalator before the accident (Issacs v Federation Dept. Stores, Inc.)

INTERSECTION MVA:  The Second Department affirmed summary judgment to plaintiff after defendant failed to yield the right of way at an intersection in which plaintiff did not have a stop sign. The Court held that "A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law" and the question of whether the driver stopped at the stop sign is not dispositive where the evidence establishes that the driver failed to yield after initially stopping (Fuertes v City of New York).

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