February 2018 Nash Connors, P.C. Newsletter
OK, so perhaps our beloved Buffalo Bills did not get as far in the NFL playoffs as we had hoped.  Look at the bright side: pitchers and catchers report next week!  If you're lucky enough to catch some spring training baseball, why not bring down this month's Nash Connors, P.C. newsletter so you can get caught up-to-speed on the latest appellate decisions around the state?
News from Nash Connors, P.C.

Last month, Nash Connors, P.C. attorneys James Nash and Philip M. Gulisano attended the annual conference and meeting of The Gavel in Boca Raton, Florida.  The Gavel is a nationwide network of attorneys, vetted by industry professionals for industry professionals, designed to provide a single access point to some of the most qualified attorneys in the industry.  The annual conference and meeting was attended by hundreds of attorneys and industry members from across the country.  Philip Gulisano was a guest lecturer at the conference and spoke on the topic of removing cases to Federal Court. 

The Gavel has regular client appreciation dinners throughout the year, held in conjunction with industry conferences and events, such as NRRDA, RIMS and TIDA.  For instance, Dan Connors is going to attend the NRRDA conference later this month.  If you have any plans on attending these conferences, please let us know and we'd be happy to have you join us at a Gavel event.

Case Law Update

TIME'S UP, BUT THAT'S OKAY:  A defect in service of process on defendant was overlooked by the Court where the statute of limitations had expired, defendant had actual notice of the action within 120 days of the filing of the summons and complaint, and there was no prejudice to defendant attributable to the delay in service ( Chan vs Zoubarev).

PRACTICE TIP:  It is within the Court's discretion whether to excuse failure to perfect service within 120 days of the filing of the summons and complaint. The Court is to dismiss the action or "upon good cause shown or in the interest of justice, extend the time for service." In practice, particularly where the statue of limitations has run, the Court will grant a plaintiff time to attempt service.

TIME'S UP, BUT THAT'S NOT OKAY:  Plaintiffs failed to timely serve their complaint in response to defendant's notice of appearance and demand for complaint. Defendant's motion to dismiss was denied and plaintiffs' cross-motion for an extension of time to serve the complaint was granted. On appeal, the appellate court reversed and noted plaintiffs failed to set forth a reasonable excuse for the delay or a meritorious cause of action. Plaintiffs' counsel's submission of his own affidavit -- rather than one from someone with knowledge of the facts constituting the claim -- and an uncertified police report were insufficient ( Ganchrow vs Kremer).

PRACTICE TIP: The difference here may have been that the statute of limitations was not expired.

Plaintiff, a passenger in a vehicle that passed four signs warning travelers that an upcoming bridge was closed, died when his vehicle struck a steel beam that was welded across the entrance of the bridge. His estate sued the State of New York on two theories: creating a dangerous condition and improper warning signs. The appellate court affirmed the defense verdict on the issue of the warning signs because the driver of plaintiff's vehicle passed four such warnings. However, the appellate court reversed the bench verdict on the issue of whether the state created a defect by placing a beam across the opening to the bridge at such a height that it allowed vehicles to pass underneath ( Reames vs State of New York, et al.).

IMPROPER MAINTENANCE: Plaintiff sustained an electric shock when he pushed the start button on a meat grinder while working at a grocery store. He sued the company the grocery store hired to repair the machine before the accident. The repair company argued it did not owe plaintiff a duty of care pursuant to Espinal vs Melville Snow Contrs. Its summary judgment motion was denied, and this decision was affirmed by the appellate court. In particular, the appellate court noted that the repair company may have assumed a duty of care by creating a dangerous condition in its repair work ( Bush vs Independent Food Equip., Inc.).

LABOR LAW:  Plaintiff moved for, and was granted, partial summary judgment on his Labor Law § 240(1) claim. The appellate court reversed and noted that plaintiff did not know why the A-frame ladder he was standing on wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. The court found that plaintiff did not meet his initial burden on the motion and that defendant raised a question of fact whether plaintiff's own conduct was the sole proximate cause of the accident ( Bonczar v. American Multi-Cinema, Inc.).

PRACTICE TIP:  Both the majority and the dissent relied upon the Court of Appeals case Blake vs Neighborhood Hous. Servs. of N.Y. City, but with different conclusions. The Fourth Department panel was split on the applicability of sole proximate cause and whether plaintiff needed to establish the cause of the safety equipment's failure. Stay tuned for further appellate practice on this case.

CASUAL SELLER: Plaintiff was injured in an explosion at a scrap metal recycling facility where he worked. His employer purchased six used fuel pumps for scrap purposes from defendant a few weeks prior to the incident. The employer did not know that each pump contained a few gallons of gas, and the explosion occurred when one of the pumps was placed into a shredder. Defendant moved for summary judgment by arguing that as a casual seller it owed no duty to plaintiff. The appellate court said that defendant was not entitled to summary judgment because it did not show that its sales of the gas pumps was "wholly incidental" to its business of installing and servicing petroleum distribution systems. In addition, the appellate court reminded us that even casual sellers owe a duty to warn of dangers that are not open and obvious or readily discernable (e.g., leftover gasoline in pumps destined for scrap) ( Rosario vs Monroe Mechanical Services, Inc., et al.).

MUNICIPAL LIABILITY: Plaintiff was injured in a motor vehicle accident caused by a pothole and sued the City of Buffalo. The city has a prior written notice statute and established both that it received no such notice and that none of the exceptions to the general rule applied. Most importantly, the appellate court stated that verbal or telephone notifications to a municipal body that eventually are reduced to writing do not satisfy the prior written notice statute ( Tracy vs City of Buffalo).

MUNICIPAL LIABILITY, BUT WITH A TWIST:  Plaintiff sued a municipality after he was thrown from a motorcycle when he hit a bumpy section of the road.  The municipality moved for summary judgment on the basis that it had not received prior written notice of the defect.  The appellate court affirmed the denial of that motion, citing Highway Law § 139, which requires a county making lack of notice motion to also show that the defect had not been present for such a duration of time that it should have known about it and corrected it ( Pasternak vs County of Chenango). 

CHANGE IN THE LAW? This case answers an interesting question: When may a party bring a motion to renew after a change in the law affecting a prior decision in the party's case? In the underlying decision, the court granted defendant's motion to dismiss plaintiff's SUM action. That decision was based on another appellate case that eventually was overturned. As a result, the injured party sought to renew the earlier decision dismissing his SUM action. The appellate court acknowledged a litigant's right to bring such a motion when there is a change in the law, but may not move to renew when the case is no longer pending. As one court said "[the law] might at times seem harsh, but there must be an end to lawsuits" ( Redeye vs Progressive Ins. Co.).

"SERIOUS INJURY": An appellate court stated that "the mere existence of a labral tear is not evidence of a serious injury." The court reminded us that plaintiff must still show objective evidence of the alleged physical limitations arising from that injury. Plaintiff's claims of a permanent consequential limitation and significant limitation of use were dismissed because he only had a 10% reduction in range of motion ( Koneski vs Seppala).

ELEMENTARY, MY DEAR WATSON! A four-year-old girl tripped on the foot of a chair as she was carrying her food tray to the trash during her pre-K class. Her mother sued the school alleging lack of adequate supervision. The appellate court noted that schools are not the insurers of safety and cannot be expected to continuously supervise all movements of its students. It further found the child was engaged in an age-appropriate task which she had been doing every single day for the school year. In finding that the school established an appropriate level of supervision, the court reversed denial of defendant's motion for summary judgment ( L.R. vs City of New York).

SLIPPERY WHEN WET:  Plaintiff sued after falling on an allegedly wet floor in a grocery store.  Defendant moved for summary judgment, on the basis that it had no notice of the defect and established that two employees checked the area shortly before the accident and found dry floors.  In response, plaintiff presented evidence that defendant had placed "Caution - Wet Floor" signs around the store.  Defendant claimed the signs were left around the store -- even on dry days -- to encourage customers to be careful.  Plaintiff had no evidence to refute this position.  The appellate court affirmed summary judgment to defendant because plaintiff could not refute the sign's purpose and any argument that they were there because the floor was wet was speculative ( Beck vs Stewart's Shops Corp.).

THAT'S WHY YOU SHOW UP TO COURT!  After the commencement of a lawsuit, the Court held a pretrial conference and ordered defendants to be available for depositions before the next pretrial conference.  Their deposition were never held, and defendants' counsel did not appear at the second conference.  Plaintiff moved for a default judgment, which was granted by the Court.  Defendants appealed, but the appellate court upheld the default judgment, stating that the defendants' excuse of law office error was not a sufficient excuse for noncompliance with Court orders ( Hill vs McCraeu, et al.). 

WHOSE CAR IS IT?  An insurance carrier brought a DJ action seeking to disclaim coverage following a motor vehicle accident. The vehicle in question was titled to a business owner, and driven by the owner's son at the time of the accident. The business used the vehicle exclusively, paid for its loan and maintenance, and marked its logo on the vehicle. The company's insurance carrier disclaimed on the grounds that the vehicle was not owned by the company, and was not "borrowed" under the policy because it was not being used for business purposes at the time of the accident (the driver was leaving a company Christmas party). The Court found that the plain policy language provides coverage for any vehicle borrowed by the company, regardless of the driver's use at the time (personal or business). The Court further found that there was nothing in the policy to suggest the vehicle was not borrowed, and concluded that the policy exclusion was inapplicable (Harleysville Worcester Insurance Co. vs MGB Building, Inc., et al.).

Nash Connors, P.C. | info@nashconnors.com | (716) 842-4121 | nashconnors.com

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