Please enjoy this newsletter from Nash Connors, P.C.
March 2017 Nash Connors, P.C. Newsletter
Pitchers and catchers reported last month for spring training, which can only mean that spring is in the air!  Please enjoy this month's case updates from Nash Connors, P.C.  You'll see that we cover topics ranging from "serious injury" threshold to a few decisions in which plaintiff was not able to obtain summary judgment on a Labor Law 240(1) claim.  As always, please feel free to drop us a line if you have any questions on these cases.
Court Examiner

The Appellate Division, Fourth Department recently appointed Jim Nash as one of its seven Court Examiners in Erie County.  In this position, Jim will review reports prepared by Guardians concerning the care and treatment of incapacitated people and offer his recommendations to the court. 

Women's Bar Association

Erin Molisani, who is on the membership committee of the Women's Bar Association of Western New York, helped organize a cooking class at the Niagara Falls Culinary Institute. The class was a membership benefit where participants prepared and enjoyed cheese and Bourguignonne fondue.

Case Law Update

Defendant was entitled to summary judgment because plaintiff did not sustain a "serious injury" when his treating physician failed to set forth the extent to which plaintiff's pre-existing condition was exacerbated by the accident.  In addition, plaintiff could not maintain the 90/180 day threshold when she missed only one day of work immediately following the accident (although she missed a total of eight weeks) and that none of her physicians placed any restrictions for the required period of time ( Ehlers v Byrnes, et al.).

SERIOUS INJURY THRESHOLD, PT II:  The same Court as above, however, found a question of fact as to whether the motor vehicle accident caused or exacerbated plaintiff's injuries when there were competing opinions from the experts ( Cicco v Durolek).

The Fourth Department ordered summary judgment on plaintiff's Labor Law 240(1) claim.  Plaintiff was fueling-up a welder that was located on a trailer that was about 20 inches from the ground.  The trailer tipped over and plaintiff was injured.  Defendant was entitled to summary judgment because the trailer "did not present the kind of elevation-related risk that the statute contemplates" ( Grabar v Nicholas, Long & Moore Construction Corp.).

LABOR LAW, PT II: Plaintiff was not entitled to summary judgment on his Labor Law 240(1) claim when he fell from a 10 foot A-frame ladder that was folded shut and leaning against the wall.  The Court noted that there were questions of fact about whether the ladder, which was not defective, failed to provide plaintiff with proper protection ( Jones v Nazareth College, et al.).

LABOR LAW, PT III: In a Labor Law § 241(6) claim, plaintiff tripped and fell on debris at a work site. Defendant alleged that Labor Law § 241(6) did not apply because at the time of the accident plaintiff was fabricating steel rebars at an off-site temporary project facility in the Bronx which did not constitute a "construction site" as required under the law. The lower Court agreed and granted defendant's motion to dismiss. In reversing the lower Court's decision, the First Department held that the Court must consider several factors such as physical proximity, common ownership, and operation of the off-site premises in determining whether it is a construction site within the meaning of Labor Law § 241(6).  Here, the off-site location was being used exclusively by defendant for this individual project and the Court held that there is no set distance which would automatically include or exclude applicability of Labor Law § 241(6) ( Gerrish v 56 Leonard LLC, et al.).

SUPERMARKET SWEEP:  A supermarket was entitled to summary judgment when one of its customers tripped over a rug while entering the store.  Defendant established that the rug was not a dangerous condition because it was laid flat over a "recessed mat system" and plaintiff testified in her deposition that she did not observe anything wrong with the rug prior to falling.  In addition, the Court found plaintiff's expert's opinion that the mat should not have been placed over the mat system to be speculative and conclusory ( Slattery v Tops Markets, LLC). 

TOUGH BRAKE:  A car made a sudden left-hand turn in front of a tractor-trailer, causing it to jackknife and collide with plaintiff's vehicle  The truck driver moved for summary judgment by arguing that the sole proximate cause of the accident was the conduct of the driver who made the left-hand turn.  The Fourth Department disagreed and noted that plaintiff submitted an expert affidavit stating that the tractor-trailer driver negligently applied his brakes, which caused the truck to jackknife ( Pacino v Lewis, et al.). 

PRACTICE TIP: In New York, motorists are jointly and severally liable in motor vehicle cases.  As a result, plaintiffs' attorneys do their best to establish at least 1% negligence on every vehicle, especially those with the large insurance policies (as the tractor-trailer listed above undoubtedly had).

WHAT'S UP WITH ALL OF THESE LEFT-HAND TURN CASES? Plaintiff successfully brought a motion for summary judgment on the issue of liability against a defendant who struck her as she was in the process of making a left-turn at an intersection. Plaintiff's evidence in support of the motion included her affidavit stating that defendant's car struck her when she was already in the intersection with a green light, and had checked the intersection for traffic in front and on each side of her. She further affirmed that defendant ran a red light and was traveling at such a high rate of speed that the accident was unavoidable. The Appellate Division emphasized that plaintiff must show not only that defendant was negligent, but also that she was free from negligence ( Bentick v Gatchalian).

PRACTICE TIP: Avid readers of this newsletter know that we led off our October 2016 newsletter with a discussion about whether plaintiff must affirmatively establish that he or she is free from any comparative negligence when moving for summary judgment on the issue of liability.  Please keep in mind that the four Appellate Divisions in New York do not agree on this issue.  The downstate divisions appear to hold plaintiff to a higher summary judgment standard, whereas the Fourth Department (encompassing Western New York) has permitted plaintiff to obtain summary judgement on negligence notwithstanding the issue of comparative negligence.

THE ISSUE IS "WEATHER" THE BUS COMPANY IS LIABLE: Plaintiff slipped and fell as she was exiting a bus because the step was covered with slush. Certified meteorological records submitted by defendants demonstrated that a snow storm that started the previous night and ended earlier in the day of the accident, leaving about six inches of snow on the ground. The First Department held that common carriers are not obligated to provide a "constant remedy" for the tracking of water onto a bus during an ongoing storm or for a reasonable time thereafter.  It noted that when the ground is covered with snow left by a recent storm, "it would be unreasonable to expect the [defendants] to constantly clean the front steps of the subject bus" (Harbison v New York City Tr. Auth.).

Plaintiff sued a police officer driving an unmarked police car following a collision at an intersection. Plaintiff and his passenger wife testified that they entered the intersection with the green light, and did not hear any sirens or see any lights before the accident. Defendant testified that he entered the intersection slowly and with his sirens and lights activated. The Court noted that only specific conduct is exempted from the Vehicle and Traffic Law such that the reckless disregard standard of care would apply. It found that defendant failed to establish that the officer's conduct was exempted, and therefore, the standard negligence standard would apply. Applying that standard, the defendant's proof fell short of entitlement to summary judgment (   Reid v City of New York).

Plaintiff brought a medical malpractice suit against her dentist.  The dental office pulled a patient file; determined that they had not treated the patient in over ten years; called plaintiff's counsel to make him aware of this fact; and never served an Answer to the lawsuit.  The problem for the dental practice was that they had a second patient with the same name (this was actually the plaintiff in the lawsuit).  Plaintiff, having not received an Answer, moved for a default judgment.  The Third Department said that the dental practice's unilateral decision that the lawsuit had no merit, without any confirmation  by plaintiff or her attorney, did not constitute "reasonable excuse" to vacate the default ( Snyder v Singh).

PRACTICE TIP: Remember that old adage of what happens when you "assume"?  Even when you're certain there's no merit to a lawsuit, that your opponent has made a mistake, etc., the best bet is still to timely serve an Answer to preserve your client's rights.

 The Second Department affirmed defendants' motion for summary judgment, dismissing the claim of a plaintiff struck by a train. Plaintiff, who was 17 at the time of the accident, circumvented a number of barriers to access an elevated track area, walked along the track, and then attempted to cross a train bridge with limited clearance and no protective railing or fences. The Second Department found that her conduct was reckless, extraordinary, and an intervening and superseding event that severed any causal nexus between the accident and claimed negligence on the part of defendants ( Weimer v MTA).

CRIME DOESN'T PAY: An insured shot a guest in his home and was sued for personal injury.  The homeowner's carrier denied coverage based on the intentional acts exclusion of the policy.  The insured sought a declaratory judgment stating that his insurer must defend him in the personal injury suit.  The Third Department held that the insurer had to  defend the suit because an assault, such as the one involved in this case, could arise from recklessness or criminal negligence ( Guzy v NYCM). 

HERE'S ANOTHER COVERAGE CASE FOR 'YA: The Court of Appeals declared that a carrier had no obligation to provide coverage for a loss of a construction crane involved in the erection of a building when Super Storm Sandy hit Manhattan.  The damaged crane hung over the streets of Manhattan for 6 days and resulted in the evacuation of the nearby buildings for fear of the total collapse of the structure.  The Court said a question of fact existed regarding whether the temporary works policy would cover the loss.  However, the Court further held that the policy's contractor's tools exclusion was applicable to the claim and defeated it.  The Court found that the crane in question fell within the definition of "machinery," even though certain parts of the crane were going to remain as permanent parts of the building (but, as noted by the Court, not the principal parts of the crane).  Finally, the Court found that by applying this exclusion to this claim, the coverage provided under the policy did not become "illusory" (an agreement in which one party gives as consideration a promise that is so insubstantial as to impose no obligation and is thereby unenforceable), noting that, "[a]n insurance policy is not illusory if it provides coverage for some acts [subject to] a potentially wide exclusion" ( Lend Lease Construction LMB Inc, et al v Zurich American Ins. Co, et al).
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