March 2018 Nash Connors, P.C. Newsletter
Just when you think that spring is around the corner, we get hit was a nasty Nor'easter!  As we write this, Buffalo has more than a foot of snow on the ground.  The weather, however, didn't stop us from putting out another great newsletter with a recap of case law around New York State.  We hear that a second storm is about to hit New England and NYC, so we wish all of our friends luck riding out the storm.  Stay safe everyone!

(P.S.: Happy St. Patrick's Day!)
News from Nash Connors, P.C.

Need some CLE credits fast?  Be sure to attend the seminar presented by Erin Molisani on premises liability for the NYS Bar Association on March 28, 2018.  You can find more information here.

Dan Connors enjoyed po' boys and hurricanes as he was in New Orleans last month during the NRRDA conference.  We are amazed that he decided to return to Buffalo...

If you are in the Buffalo area, you'll see a number of events that the firm is supporting. For starters, we are sponsoring Trimania, a fundraiser for the Buffalo Arts Studio that is so huge it only happens once every three years (on April 14)!  BAS is a not-for-profit arts organization whose mission is to provide affordable studio space for artists, in addition to their exhibition and education programs. 
We are also pleased to support The Buffalo Garden Party, which takes place on July 28, 2018, during Garden Walk Buffalo, one of the largest garden walks nationally ( Erin Molisani's garden is one of the many featured gardens!).  The Buffalo Garden Party supports the mission of One Symphony Circle, Inc. to preserve and restore the historical landmark building that was designed by renowned Buffalo architect E.B. Green.  ( Jonathan Cox is the immediate past President of the BAS Board of Directors and is an active member of the Board of Directors of One Symphony Circle.)

If you like to run, you'll see a number of runners at the Canisius High School Chilly Challenge in Nash Connors shirts on March 25, 2018.  This is a 5k race in the City of Buffalo.  Jim Nash is a past President of the school's Board of Governors.  (Let us know if any other runners need a shirt!)
Case Law Update

PLAINTIFF'S COUNSEL DENIED THE "FRIEND REQUEST":  Defense counsel sought access to a plaintiff's Facebook account in a personal injury action.  The Court of Appeals held that courts should assess the nature of the incident and injuries claimed to determine if relevant materials are likely to be found on a Facebook account.  The court should then balance the utility of the potential information against the privacy concerns and issue an order tailored to the situation and delineating the materials to be disclosed ( Forman vs Henkin). 

PRACTICE TIP: This opinion addressed only the disclosure of photographs and did not discuss whether plaintiff's posts both pre- and post-accident should be disclosed.  However, the court intimated that if such an issue came before them, the result would be the same, thereby subjecting a plaintiff's actual posts to the same level of disclosure as with the photos.

A trial court's decision to dismiss plaintiff's Complaint based on the storm in progress doctrine was reversed. Although plaintiff had no memory of the accident as a result of his injuries, his wife testified that the ice she found him on was approximately an inch thick. That, plus a meteorologist's opinion that ice that was an inch thick preceded the storm in progress, raised a triable issue of fact ( Gervasi vs Glagojevic)

STORM IN PROGRESS, PT II:  Defendants moved for summary judgment, arguing storm in progress where plaintiff testified that light rain started about fifteen minutes before the accident. A climatologist's report also was submitted, but it was not signed or notarized, and was therefore inadmissible. Despite the submission of a signed and notarized report in reply papers, the appellate court found it should not have been considered and that summary judgment was improperly granted to defendant ( Brandimarte vs Liat Holding Corp.).

48-FOOT TRUCK COMING THROUGH: Plaintiff commenced an action against the owner and operator of a tractor trailer that struck plaintiff's foot as she stepped off a sidewalk. The driver testified that he was about 85% of the way through a right hand turn when plaintiff's right foot came into contact with the tractor trailer. Plaintiff testified she did not see the tractor (which had a 48-foot trailer) before she was struck. The appellate court reversed the trial court's denial of defendant's motion on the grounds that defendants established that plaintiff's failure to see what was there to be seen was the sole proximate cause of the accident ( Faulknor vs Gina's Trucking, Inc.).

WHAT'S THE PRIZE FOR A STABBING?  Plaintiff was stabbed at defendant's bar and entertainment facility, and sued based on a claim of inadequate security. Defendant was granted summary judgment. On appeal, the court noted that defendant had an obligation to protect members of the public from reasonably foreseeable criminal acts by third parties. Upon a finding that the criminal assault was not foreseeable, defendant's dismissal from the lawsuit was affirmed ( Valente vs Dave & Buster's of New York, Inc.).

MOTORCYCLE MVA: Plaintiff, while on a motorcycle, was involved in a collision with a vehicle making a left-hand turn in front of him at an intersection. Plaintiff testified he was driving 25 miles per hour immediately before the accident and that he applied his brakes to try to avoid impact when he saw defendant start to turn. Plaintiff moved for summary judgment on liability, arguing that defendant's conduct was the sole proximate cause of the accident in failing to yield the right of way to plaintiff and violating Vehicle & Traffic Law § 1141. The Court found that while plaintiff made a prima facie showing of entitlement to summary judgment, defendant raised a triable issue of fact as to whether plaintiff was driving at an excessive rate of speed and whether he could have avoided the accident through the use of reasonable care. Because there was a question of fact as to plaintiff's comparative negligence, summary judgment against defendant was denied ( Shashaty vs Gavitt).

WE LOVE ESPINAL:  Plaintiff brought suit against the property owner and snow removal contractor of the condominium where she slipped and fell on ice. Defendants moved for summary judgment. The contractor's motion was denied because, while he testified about his general practices for snow removal, he failed to affirmatively prove that he did not launch a force or instrument of harm, which was alleged in plaintiff's pleadings. The property owner's motion was properly granted where it successfully established it lacked actual or constructive notice of the black ice that caused plaintiff's fall ( Yvars vs Marble Heights of Westchester, Inc.).

NO DUTY TO CREATE A PATH THROUGH SNOW: Plaintiff was injured when, upon exiting his car, which he had parked parallel to the curb, he slipped and fell on an accumulation of snow on ice alongside the sidewalk abutting defendant's property. In upholding the lower court's decision, the appellate court held that defendant did not have a duty to place or clear a path even though they knew that people would park in that location and walk over the curb to the sidewalk ( Tchouke vs Montefiore Medical Center).

I TOLD YOU WE LOVE ESPINAL: Plaintiff was injured when he walked into a floor-to-ceiling clear glass wall. In denying defendant's motion for summary judgment, the appellate court held that there was an issue of fact regarding whether or not defendant "launched a force or instrument of harm" by not installing or maintaining blue marking tape on the glass wall ( Cardenas vs GM Glass & Mirror).

LABOR LAW: In a Labor Law § 240 case plaintiff was injured when a 300-pound laundry bin he was lifting without any safety devices fell five to seven feet. The appellate court held that the height differential was not de minimis given the weight of the bin and significant force it was capable of generating ( Miller vs Chelsea Enclave).

BROKEN LEG VALUE: An 84-year old plaintiff at the time of the accident suffered a comminuted proximal humerus fracture.  The injury healed in a misaligned manner, causing chronic pain, permanent reduction in range of motion and leaving plaintiff unable to care for herself. Plaintiff was awarded $600,000 for past pain and suffering and $400,000 for future pain and suffering. The appellate court held that the award for past pain and suffering "deviates materially from what would be reasonable compensation and reduced the award to $400,000. Similarly, the Court reduced the future pain and suffering award to $150,000 ( Jones vs NY Presbyterian Hospital).

DID SOMEONE MENTION ESPINAL?  In a slip and fall action, the defendant snow plow contractor successfully moved for summary judgment under the Espinal line of cases.  Plaintiff appealed, arguing that the snow plow contract displaced the property owner's duty to maintain the property, because it granted the contractor independent authority in some aspects of maintaining the property.  The appellate court disagreed because the contract ultimately gave the property owner some control over how snow and ice was removed, and therefore did not "displace entirely" the property owner's duty.  Plaintiff made a second argument that the contractor "launched an instrument of force" by not properly maintaining the lot.  The appellate court held that this was insufficient to establish a launched instrument of force or harm, because even if it were true that the contractor did not properly maintain the lot, he did not affirmatively create a dangerous condition ( Hutchings vs Garrison Lifestyle Pierce Hill, et al.).

EXPERT DISCLOSURE: In an action to recover for injuries resulting from mold exposure, the trial court put a scheduling order in place which required expert disclosure happen by a date certain.  After that date passed and plaintiff had not disclosed any medical experts, defendant moved for summary judgment on the basis that plaintiff, without a medical expert, could not establish liability as she could not establish that mold caused her injuries.  The trial court granted summary judgment and plaintiff appealed.  The appellate court upheld the trial court's decision, stating that an expert was necessary to establish causation, and that appellate courts are not to disturb the trial court's decision unless there is clear abuse of discretion.  Given the trial court had established a definitive scheduling order, it did not abuse its discretion ( Colucci vs Stuyvesant Plaza, Inc.).

PLAINTIFF DIDN'T "LOSE" HIS LOST WAGES: Plaintiff sued an insurance carrier for lost wages under his no-fault policy for a job that he had been offered, but had not yet started.  The carrier had denied the claim for lost wages because they had not received a completed, verified employer's wage report.  Plaintiff's counsel argued he had provided all requested information, via a letter, prior to the denial of benefits.  Nevertheless, the insurer denied the claim because they had not completed the form.  The appellate court held that an insurer cannot deny a claim simply because they have not received a specific form, so long as they have been given the necessary information, in any form, with which a decision can be made on the merits ( Freligh vs GEICO).

WHAT DOES IT MEAN TO "RESIDE"? Plaintiff sought to recoup losses after a house fire.  The insurer denied plaintiff's claim on the basis that she was not an insured, because she did not reside at the insured premises, even though she was a relative of the property owner.  The policy did not define "reside" and so the standard is based on case law, which states that the individual resides at the premises if they are "more than temporary or physical presence, and requires some degree of permanence and intention to remain."  A jury determined that plaintiff was a resident at the property and the carrier appealed.  The appellate court held that the jury's decision was justifiable because the plaintiff ate several meals throughout the week at the premises, stayed there on the weekends, considered it her home, used it as her mailing address, and intended to live there full-time in the future ( Cotillis vs NYCM).

THIRD-PARTY BENEFICIARY: NYC contracted with plaintiff Dormitory Authority of State of NY to build a  laboratory, and DASNY then subcontracted with an architect, Perkins, and excavation company.  The subcontract with Perkins contained indemnity language running in favor of DASNY and the client, NYC.  The failure to properly install an excavation support system caused substantial damage and delays in the project, amounting to $37 million dollars.   The Court of Appeals dismissed NYC's suit against Perkins because the Perkins contract failed to state that it benefited NYC ( DASNY vs Sampson Construction, et al.).

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