Summer 2017 Nash Connors, P.C. Newsletter
As we enter the last month of summer, please enjoy our newsletter with a case law round-up from June and July. Here in Buffalo, we've had everything from floods to tornadoes recently -- hardly the typical Western New York summer! We hope that everyone enjoys their summer and we'll be back in the Fall with another newsletter.
News from Nash Connors, P.C. 

Jim Nash was sworn in for his third and final year as a Director of the Bar Association of Erie County.  He was elected to this position in 2015 and represents nearly 4,000 attorneys in the Western New York area.  Jim is also the liaison to the Appellate Practice and Federal Practice committees of the Bar Association.
Case Law Update

A spouse seeking to bring a derivative claim was permitted to serve a late Notice of Claim because the municipal defendant had actual knowledge of his wife's injury ( Darrin v County of Cattaraugus).

PRACTICE TIP: This was an interesting case because even the wife (the primary injured party) failed to file a timely Notice of Claim.  Nevertheless, the Appellate Division said that the most important thing to look for when deciding to allow a party to serve a late Notice of Claim is if the municipality had actual notice of the injury or damage (not necessarily notice of the accident itself).

MORE MUNICIPAL LIABILITY:  Plaintiff, who tripped over a protruding manhole cover near the entrance to a park, sought to amend her Complaint to allege that the municipal defendant created the defect.  The first Complaint alleged only failing to repair and warn of the condition.  Plaintiff cited General Municipal Law ยง 50-e(6), which "authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability" as the basis for the late amendment.  The Appellate Division denied this amendment because the statute does not permit a party to assert a new theory of liability after the limitations period has expired ( Aleksandrova v City of New York). 

Plaintiff was not entitled to summary judgment on negligence in a rear-end accident when defendant testified that plaintiff moved his vehicle into defendant's lane and slammed on his brakes moments before impact.  Further, defendant's guilty plea to a violation of Vehicle and Traffic Law 1129a (following too closely) is only some evidence of negligence and does not establish negligence per se ( Gardner v Chester).

PRACTICE TIP: Although there is a presumption of negligence in rear-end accidents, this presumption may be rebutted by showing that plaintiff partially caused his or her accident, such as stopping short or an improper lane merge.

  Plaintiff, against whom a No-Fault arbitration decided that an injury was not causally related by an accident, was collaterally estopped from claiming that same injury in a bodily injury lawsuit ( Rozewski v Trautman).

PRACTICE TIP: Collateral estoppel is the legal doctrine that prevents a party from re-litigating an issue a second time.  Typically a person must have a "full and fair" opportunity to argue an issue before they are precluded from litigating the same issue again.

Plaintiff was a passenger in a vehicle driven by Driver #1, who got into a one-vehicle accident.  Everyone exited the vehicle without any issues.  Plaintiff was then hit by a vehicle operated by Driver #2.  Driver #1 moved for summary judgment by arguing that his negligence was not a proximate cause of the second accident.  The Appellate Division agreed and said that Driver #1 did nothing more than furnish the occasion by which the second motor vehicle accident happened ( Serrano v Gilray, et al.).

You may also be interested in the companion action ( Sheehan v Gilray, et al.), which was a Dram Shop claim against the bar that sold alcohol to Driver #2.  The bar moved for summary judgment by arguing that Driver #2 was not visibly intoxicated when he was served the liquor.  Plaintiff established a question of fact on the visible intoxication issue by citing to the police officer's testimony that Driver #2 had bloodshot eyes, slurred speech and smelled of alcohol.  

  A property owner cross-claimed for breach of contract / failure to procure insurance against its tenant when the latter's insurance company failed to provide the property owner with coverage.  The trial court granted the property owner summary judgment.  The Appellate Division reversed and said that "the mere fact that the insurance carrier disclaimed coverage for the accident does not establish as a matter of law that [the tenant] failed to obtain the necessary coverage" ( Strong v St. Thomas Church, et al.).

HERE'S SOME MORE COVERAGE:  The Court of Appeals held that a policy that affords coverage for any bodily injury "caused, in whole or in part" by the named insured's acts or omissions includes those injuries proximately caused by the insured, but not those "causally linked" to the named insured's activities.  The court said that the putative additional insured was not entitled to coverage when the named insured was not responsible for the accident ( Burlington Ins. Co. v NYC Trans. Auth.).

PREMISES LIABILITY:  The Appellate Division reversed denial of summary judgment when plaintiff fell on a defective condition on a municipal sidewalk.  Although the local village code required abutting property owners to repair such defects, the code did not impose tort liability for failing to do this work.  As a result, defendant convinced the Appellate Division that plaintiff had no cause of action against it ( Clauss v Bank of America, et al.).

PRACTICE TIP: The team at Nash Connors, P.C., along with downstate counsel, successfully handled this appeal.  The general rule is that a municipality is responsible for defects on its sidewalks, although this burden may be shifted to the abutting owner/tenant.  Although it may seem counterintuitive, a local code must shift the responsibility to the owner/tenant and impose tort liability for failing to make the repairs.

PREMISES LIABILITY, PT II:  The Appellate Division held that there was a jury issue on whether NYC's "Big Apple Map" gave the City notice of a defective condition on a sidewalk.  In this case, the map showed some defects in the area of plaintiff's fall, although the map did not show the defect that actually caused plaintiff's incident   ( Foley v City of New York).

PRACTICE TIP: The Big Apple Map is a series of maps that show defects in NYC's sidewalks (which amount to more than 13,000 miles of property).  They are used by plaintiffs' attorneys to establish actual notice against the City in premises liability cases.

TRAPDOOR:  A plaintiff fell through a trap door that had been left open in a deli. Defendant was properly granted summary judgment, as the trapdoor was not defective or unsafe when closed. The claim that it became unsafe only when left open was not a basis for imposing liability on the deli owner, even if the trapdoor was installed without a permit ( Curran v 201 West 87th Street LP).

  A plaintiff tripped and fell on an exposed tree root in the common yard of the condominium where she lived. The court affirmed dismissal of the case, holding that there is no duty to warn plaintiff of the root where it was open and obvious, inherent or incidental to the nature of the property, and known to the plaintiff prior to the accident ( Commander v Strathmore Court HOA).

PRACTICE TIP:    This case focused on the failure to warn of an open and obvious condition. Bear in mind that outside of the failure to warn theory of a case, the Appellate Division has adhered to the principle that an open and obvious defect does not negate a defendant's duty to keep the property in a reasonably safe condition, and goes instead to plaintiff's comparative negligence.

NO ENGAGEMENT AT THE ICE RINK:  P laintiff slipped at the Rockefeller Center ice rink and claimed that the ice skates he rented were "improperly sized" and that he fell on a dangerous wet ice condition. The Appellate Division affirmed the trial Court's dismissal of the Complaint, as the ice where plaintiff fell did not present a slipping danger over and above the slipping risk already inherent in ice skating. Defendants also successfully showed that the size of plaintiff's ice skates was not a proximate cause of the accident (Telchman v RCPI Landmark Propertyes, LLC).

"SERIOUS INJURY":  Defendant successfully moved for summary judgment on the issue of "serious injury."  Defendant noted that one doctor stated that plaintiff's supraspinatus tear was "longstanding in nature" and that another doctor stated that it was degenerative and not causally related to the accident.  The Appellate Division said that summary judgment was not appropriate because although the injury may have preexisted the accident, there was significant proof that it was asymptomatic prior to the accident and that it now caused significant reductions in the plaintiff's ranges of motion (
McIntyre v Village of Liberty).

CAN A WITNESS BE FORCED TO ANSWER QUESTIONS ABOUT LEGAL CONCLUSIONS?: Plaintiff sued for personal injuries after being injured by a horse at a resort.  At depositions, the plaintiff answered all of the questions related to the facts of the incident, but refused to answer questions which addressed the underlying legal issues of the matter of the adequacy of warnings given.  Defendants moved to compel the plaintiff to answer the questions asked of him, but the Supreme Court denied the motion.  On appeal, the Appellate Division affirmed the trial court's decision, noting that a plaintiff may not be compelled to answer questions seeking legal conclusions ( Kaye v Tee Bar Corp.).

EXPERT DISCLOSURE: Plaintiff brought a claim to recover for personal injuries resulting from a trip and fall accident.  During initial discovery, plaintiffs did not disclose any medical experts.  The parties did, however, depose one of the plaintiff's treating physicians.  Plaintiffs then stated that they would be calling the doctor as an expert witness.  Defendants opposed, stating that the doctor was not properly disclosed under CPLR Article 31.  Plaintiffs argued that the deposition of the doctor served as their disclosure, as it contained the doctor's relevant opinions.  The Appellate Division held that this did not constitute proper disclosure and gave plaintiff thirty days to make proper disclosure, or they would only be able to present the video of the doctor's deposition for the purposes of factual testimony and not expert testimony (Schmitt v Oneonta City School District). 
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