June 2017 Nash Connors, P.C. Newsletter
It's hard to believe that 2017 is almost half over!  As you break out the patio furniture, find your golf clubs in the basement and light your grills for summer cookouts, please enjoy the June 2017 Nash Connors, P.C. newsletter.  As always, you'll find some news from the firm and a great recap of recent appellate case decisions from New York.  Please enjoy!

News from Nash Connors, P.C. 

Matt Louisos recently appointed to a three-year term on the Board of the Western New York Chapter of the American Red Cross.  We are very proud of our attorneys' involvement in the Western New York community and congratulate Matt on this honor!

Nash Connors, P.C. was proud to sponsor the Women's Bar Association of New York event at Big Ditch Brewery on May 12. The membership drive event, which Erin Molisani helped organize, was a big success with more than 40 membership renewals.
Our staff and attorneys participated in the Lawyers for Learning Bowling event on May 18. Lawyers for Learning is a not-for-profit organization where lawyers in Erie County volunteer as tutors and mentors at Public School 18 in the west side of Buffalo. The bowling event raises money and collects camping supplies for the kids at Public School 18.
Case Law Update

  Plaintiff successfully raised a question of fact in opposition to a summary judgment motion involving a dog bite when the evidence showed that defendant's dog "snapped at" and "growled at" other dogs at a dog daycare facility.  In addition, the daycare records stated that the dog was "unpredictable" and was not invited to remain at the facility following a three-day trial period.  The Appellate Division said these facts were relevant to whether the dog owner knew about the dog's vicious propensities ( Arrington v Cohen). 

  Defendant dog owner moved for summary judgment on the basis that he did not have knowledge of any vicious propensities of the dog, and the trial court granted the motion in large part because the dog had never bit anyone prior to the accident. The Appellate Division reversed, noting that an actual prior bite is not required to show prior vicious propensities. The record showed that the dog had been known to bark at people when they entered the property, run at people when it was chained on the property, and had broken his chain so that he could run at and circle people ( Olson v Campbell).

SWIMMING POOL ACCIDENT:  Plaintiff nearly drowned in defendant-hotel's swimming pool.  Plaintiff alleged that defendant knew of a dangerous condition-- namely, a group of children running and jumping in the swimming pool area -- and that defendant had the duty to control such conduct.  In response, the hotel showed that it was not aware of the need to exercise control over the children and, moreover, that it did not have the opportunity to do so ( Wallace v M&C Hotel Interests, Inc., et al.).

  A plaintiff was injured while climbing out of an unraised aerial bucket when his foot got caught on part of the bucket usually covered by a "dielectric liner" and he fell 12 to 15 feet. The Second Department noted that the dielectric liner protects workers from electric shocks, not from falls from heights. The court found that there was nothing defective or inadequate about the bucket relating to fall protection. Dismissal of plaintiff's Labor Law 240 claim was affirmed ( Robinson v Nat'l Grid Energy Mgmt, LLC).

LABOR LAW, PT II:  A homeowner did not get the benefit of homeowner exemption of the Labor Law in a Second Department recent case. Plaintiff testified that defendant homeowner directed him to throw debris from a balcony with no railing, where he was ultimately injured, rather than out of a window. In light of plaintiff's testimony of specific direction from the homeowner, defendant failed to meet his burden of showing that he did not direct or control the injury-producing work, and denial of summary judgment on Labor Law §§ 240 and 241 claims was affirmed (Wadlowski v Cohen).

LABOR LAW, PT III:  In a Labor Law § 240(1) case, plaintiff was injured after falling from a ladder that, according to plaintiff's testimony, had wobbled and fell to the ground. In upholding the lower court's decision granting summary judgment for the plaintiff, the Appellate Division held that there is a presumption that the ladder or scaffolding device was not good enough to afford proper protection. The Court further held that the superintendent's testimony that he observed the ladder standing when he arrived at the scene one-half to one hour after plaintiff's fall was insufficient to refute the presumption (
Kebe v Greenpoint-Goldman Corp., et al.).

LABOR LAW, PT IV:  Plaintiff fell at a construction site while he was wearing stilts to install ceiling tile.  The parties all moved for summary judgment on Labor Law § 240(1).  The Appellate Division said that there was a question of fact on defendant's motion because plaintiff lost his balance and was forced to step backwards and onto a electrical wire conduit. The Court reasoned that there was an issue of fact as to whether the injury was the direct consequence of defendant's failure to provide adequate protection against a risk arising from a height differential ( Piche v Synergy Tooling Systems, Inc.).

EMERGENCY DOCTRINE:  A plaintiff who rear-ended defendant claimed at trial that defendant suddenly braked, swerved to the left and stopped halfway off the road. Defendant claimed he brought his vehicle to a gradual stop. Plaintiff argued that the jury should be charged with the emergency doctrine, but the trial court and Second Department found that plaintiff was not entitled to the charge when plaintiff was not reacting to an emergency, but rather to a common traffic occurrence (Shehab v Powers).

"SERIOUS INJURY" THRESHOLD:  The Appellate Division agreed that defendant met his initial burden by pointing to medical records that indicated that the plaintiff had full ranges of motion.  Plaintiff responded by providing affidavits of treating physicians that stated that the plaintiff showed "significant losses in range of motion" and that these determinations were based on "clinical objective testing."  Additionally, plaintiff presented an affidavit from his primary care physician that noted that the plaintiff had suffered from PTSD as the result of the motor vehicle accident which caused anxiety, nightmares and flashbacks.  Plaintiff's submissions were sufficient to raise a question of fact (Fillette v Lunberg).  

MUNICIPAL LIABILITY:  Plaintiff was severely injured when, while standing on the sidewalk, a taxicab hopped the curb and struck her. The taxi driver had numerous penalty points on his license that might have supported a suspension of his license prior to the accident, and plaintiff alleged that the failure to suspend the driver sooner was the result of a "computer glitch" at defendant Taxi & Limousine Commission. In affirming the lower court's decision and dismissing the claim, the Appellate Division, First Department held that plaintiff failed to establish a "special relationship" giving rise to a duty on the part of the municipality for failing to enforce a statute or regulation which would have suspended the driver (Sian v City of New York, et al.).

MUNICIPAL LIABILITY, PT II:  Plaintiff tripped and fell on a broken municipal curb. The municipality established that it did not have prior written notice of the defect.  The burden then shifted to plaintiff to prove that the municipality created the defect, which he did by testifying that he parked outside the accident area for ten years and first noticed the defect after construction fencing was removed (Ahern v City of Syracuse).

ESPINAL:  Plaintiff, a bank teller, was injured when she tripped over boxes of quarters delivered to the bank by defendant. In analyzing whether summary judgment was correctly denied to defendant, the Appellate Division focused on the "launching a force or instrument of harm" prong of Espinal. The Court found that defendant failed to demonstrate as a matter of law that it did not create a dangerous condition by placing the boxes where plaintiff was likely to trip over them (Brown v Garda CL Atlantic). 

LEAD PAINT, PT I:  The Appellate Division reversed the granting of summary judgment to defendant where plaintiffs established that defendant had constructive notice of lead paid on the permises.  Plaintiffs raised an issue of fact by pointing to testimony that they told defendant that small children would be living in the apartment and that defendant knew the house was "old" and that he "must have known" that laws regarding lead came out in the 1970s (Rodrigues v Lesser, et al.).

LEAD PAINT, PT II:  The denial of defendant's motion for summary judgment in a lead paint exposure case was affirmed where plaintiffs were able to point to evidence which contradicted defendant's testimony that they first learned of the presence of lead paint in the apartment in 2014.  Plaintiffs produced an affidavit from a former tenant which stated that the Department of Health found high lead levels in the apartment in 2006 and defendant was told of chipping paint thereafter.  The Court also rejected defendant's claim that plaintiff's failure to vacate the apartment for two months after learning of the condition was a superseding cause of plaintiff's injuries (Stowe v Furness). 

ASSUMPTION OF RISK:  A fifteen year old boy was struck in the face with a baseball during his high school baseball tryouts, which were being held in a gymnasium due to weather.  The school moved for summary judgment on the basis of assumption of risk, stating that plaintiff had played baseball for many years and had been participating in tryouts for four days prior the accident.  In opposition, plaintiffs provided the testimony of a "baseball expert" who stated that, in his opinion, the school had unreasonably increased the risk level inherent with the activity by using a metal "fungo" bat and by running the drill at a distance of 48 feet (as opposed to 60 feet) that he stated was the shortest distance a baseball fielder would ever be from the batter.  The Appellate Division held that the baseball expert's testimony was insufficient to raise a triable issue of fact because he did not cite industry standards, scientific studies, regulations, or any other objective evidence (Legac v So. Glens Falls Central School District). 
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