May 2017 Nash Connors, P.C. Newsletter
This month marks Nash Connors' one-year anniversary!  Since the firm was started, we have added two attorneys and two paralegals, and look forward to continued growth in the future.  We'd like to thank everyone who helped make this possible!

In this month's issue, we have a great roundup of cases around New York State.  You'll find decisions that deal with the "serious injury" threshold, some Labor Law matters and other interesting decisions.  Please enjoy...
News from Nash Connors 

The attorneys at Nash Connors pride themselves in their community involvement.  Recently, Jon Cox was elected to the B oard of Directors for One Symphony Circle, which is a non-profit organization charged with the care and management of the building that houses the First Presbyterian Church.

Jim Nash recently spoke to a group of attorneys and insurance adjusters at a NYS Bar Association seminar entitled "Auto and Truck Claims, Accidents and Litigation.

In addition, mark your calendars for September 7, 2017: Erin Molisani is going to give a presentation to the Negligence Committee of the Bar Association of Erie County about various issues relating to default judgments. 

Case Law Update

Plaintiff was in a vehicle outfitted for drag racing, which apparently had no seat belts.  Defendant raised comparative negligence and plaintiff's failure to mitigate his damages as defenses to a lawsuit.  The Appellate Division struck down the failure-to-mitigate defense because the Vehicle & Traffic Law does not require seat belt use when they are not available.  Further, the Court ruled a defendant may argue that a plaintiff's decision to ride in a vehicle not equipped with seat belts may breach the common-law duty to exercise reasonable care.  In this case, however, the Court noted that there was no evidence that plaintiff's conduct contributed to the accident ( Johnson v Thompson, et al.).

  Although the decision does not specifically address this, we suspect that the defense did not have an expert who was capable of offering an opinion that plaintiff's injury would have been less severe had he been wearing a seat belt.  Please remember that it is imperative that you retain an expert for this purpose; you may not simply make that argument to the jury during closing arguments without the sufficient expert opinion. 

Plaintiff in a personal injury suit sought production of a recorded statement transcript between defendant and his insurer. Defendant claimed that it was privileged because it was made in anticipation of litigation.  The Appellate Division held that the defendant met his burden of showing that it was privileged by submitting an affidavit from the insurer stating that the recorded statement was taken in anticipation of litigation ( Curci v Foley).

PRACTICE TIP:  When taking recorded statements in the future, you may wish to preface the interview by stating you are doing it in anticipation of litigation so as not to waive any potential disclosure defense.

SNOW PLOW / SERIOUS INJURY THRESHOLD:  Plaintiff was injured when his vehicle struck another vehicle while attempting to avoid a municipal snow plow that was making a U-turn.  The City of Buffalo argued that the reckless standard should apply because the snow plow was engaged in work and, additionally, that plaintiff did not sustain a "serious injury."  The Appellate Division said that there was a question of fact as to whether the plow was engaged in snow removal activities because although it was not in the process of plowing or salting at the moment of impact.  Further, the Appellate Division denied summary judgment on the threshold argument because defendant's expert, who said that plaintiff only sustained a "sprain/strain," failed to address a post-accident MRI that showed herniations at C3 through C7 ( Martinez v City of Buffalo).

MORE SERIOUS INJURY:  In a personal injury suit arising out of a motor vehicle accident, defendants moved for summary judgment on the issue of serious injury and argued that all of plaintiff's symptoms and limitations were pre-existing.  The Appellate Division held that the while defendants met their initial burden, plaintiff  raised a question of fact by citing to post-accident records that stated she had an antalgic gait (which was not in prior medical records) and by producing an affidavit from her neurosurgeon which stated that the plaintiff had sustained a new disc protrusion at L4-5 as a result of the accident ( Moat v Kizale, et al.).

PRACTICE TIP:  You might want to read this decision if you handle MVA claims in New York.  Plaintiff had a well-documented history of lower back problems.  In fact, plaintiff told her physician the day before the accident that she had "severe and bitter back pain that could come and go at any time and would get worse throughout the day."  As a result, the physician ordered a lumbar spine MRI.  The Appellate Division did not seem convinced by plaintiff's attempt to distinguish her pre-accident condition.  On this issue the Court said: "we cannot help but note that Moat's recitation of her injuries, as well as the claimed severity thereof, frequently is at odds with other evidence in the record."  Yet, a question of fact was found and denial of summary judgment to defendant was affirmed.

SERIOUS INJURY, PT III:  The Appellate Division held that plaintiff had failed to raise a triable issue of fact despite submitting three affidavits from her treating physicians because the affidavits did not address plaintiff's range of motion or her pre-existing degenerative condition. The Court went on to hold that the affidavit from plaintiff's physical therapist was insufficient because a physical therapist cannot diagnose or make prognosis regarding permanency of causation ( Callahan v Shekhman).

STONED:  Prior to trial, defense counsel disclosed an expert toxicologist who was going to testify that plaintiff had smoked marijuana prior to being involved in an accident; that plaintiff was intoxicated because of this; that plaintiff's intoxication impaired his reaction time; and that this presented an "unreasonable scenario" for the other driver.  The Appellate Division ruled that the trial court properly allowed this testimony, except for the issue with the response time because it was outside of the expert's area of expertise.  The jury returned a defense verdict ( Likos v NFTA).

LABOR LAW:  A defendant/property owner was not entitled to summary judgment on plaintiff's Labor Law action despite the "homeowner exemption."  Defendant said he intended on using the house (in part) for his own residence, whereas plaintiff claimed that defendant told him that he intended on renting out both sides of the property.  In addition, the Appellate Division said that defendant was properly denied summary judgment on the Labor Law 200 claim because defendant/property owner allegedly supplied plaintiff with a ladder that was too short and that plaintiff objected to using it under the circumstances ( Vogler v Perrault). 

LABOR LAW, PT II:  Plaintiff was injured when he stepped on the midrail of a scaffold, began to fall and grabbed a pipe to stop his fall.  Defendants argued that plaintiff had adequate safety devices available, that he knew the safety devices were available, that he knew he was expected to use the safety devices, that he chose not to use them, and that had he used the safety devices the accident would have been prevented. In contrast, plaintiff argued that despite the scaffolding not being an adequate height to perform his job, one of his supervisors told him "it's got to get done.. Get up there and get it done... Do whatever to get it done." The Appellate Division reasoned that the defendants failed to establish that the plaintiff's actions were the sole proximate cause of the accident and that there were triable issues of fact whether the adequate safety device (the scaffolding at the proper height) was readily available for the plaintiff's use or whether the plaintiff chose not to use the safety equipment ( Videan v NRG Energy, Inc., et al.).

ESPINAL:  A snow plow contractor was entitled to summary judgment because it did not owe plaintiff a duty of care when the property manager had the right to request additional services and oversaw maintenance of the property (relevant to the question of whether the contract was so comprehensive and exclusive as to entirely displace the duty to maintain the area).  In addition, the Appellate Division said the snow plow contractor was entitled to summary judgment because it could not have "launched an instrument of force or harm" because the contractor never plowed the area where plaintiff fell ( Lingenfelter v Delevan Terrace Assoc., et al.).

PRACTICE TIP:  At first glance, this should not make sense.  You may be asking: Why should a snow plow contractor be entitled to summary judgment when it did not plow the very same area where plaintiff fell?  In situations like this, courts have reasoned that such inactivity is not the same as actually creating or exacerbating a dangerous condition.  Instead, courts view the contractor's inaction simply as its failure to be "an instrument of good."  So, sometimes the fact that a snow plow contractor does not do the work it's contractually obligated to do is actually beneficial to its summary judgment motion (N.B. the property owner may still be entitled to contractual indemnification).

DO YOU LOVE ESPINAL AS MUCH AS WE DO?  Plaintiff sued a car mechanic company and defendant driver following a car accident. The claim against the mechanic alleged negligence in the repair of defendant's car five months before the accident. The mechanic successfully moved for summary judgment on the Espinal line of cases, showing that plaintiff was not a party to the repair contract between defendants five months before the accident. In addition, the Court stated that because the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, the mechanic was not required to affirmatively demonstrate that those exceptions did not apply in order to establish its entitlement to summary judgment ( Koslosky v Malmut).

PRACTICE TIP:  Pay close attention to the allegations in the Bill of Particulars. While you cannot point to gaps in plaintiff's proof to be granted summary judgment, this case supports the position that you can point to gaps in plaintiff's allegations of negligence.

THE SPEED BUMP WORKED TOO WELL:  Plaintiff tripped and fell over a speed bump.  She said that defendant was negligent because the speed bump was located next to a crosswalk and both were the same color, making it difficult to distinguish the two items.  Defendant claimed it owed no duty to warn of an open and obvious danger.  The Appellate Division essentially affirmed the denial of summary judgment to defendant because the speed bump was a "trap" that may not be easily noticed.  Further, the Court said that defendant's expert's affidavit was not sufficient to establish summary judgment because he never visited the accident scene and only addressed the viability of the speed bump in a "conclusory fashion" ( Schneider v Corporate Place, LLC).

THE COURT DIDN'T "SEE" A SPECIAL USE:  Plaintiff, who was riding a bicycle, was struck by a motorist exiting a driveway.  Plaintiff said that her view of the vehicle was blocked by a stone fence next to the sidewalk.  The property owner moved for summary judgment by arguing that it did not owe plaintiff a duty of care.  The Appellate Division said that the "special use" exception (thereby creating a duty) did not apply because there was no defect with the sidewalk or the driveway itself ( Weston v Martinez, et al.).

HERE'S SOME MORE SIDEWALK LIABILITY:  Defendant, an abutting property owner of a sidewalk where plaintiff fell on an uneven slab, was entitled to summary judgment because defendant did not create the defect, make special use of the sidewalk, or violate any statute charging her with a duty to maintain the sidewalk as well as tort liability for the failure to maintain the sidewalk. The municipality's city code required abutting landowners to maintain the sidewalk, but did not have the second prong of imposing tort liability for any such failure ( Lagawo v Meyers).

PRACTICE TIP:  City codes vary widely in this regard. The Appellate Divisions also vary as far as whether they will read in the second prong that let the defendant in Lagawo out of the case: the imposition of tort liability. For example, the Buffalo City Code puts maintenance obligations onto abutting property owners, but tort liability is only imposed with regard to snow and ice. The Fourth Department has interpreted the City Code as imposing tort liability for physical defects such as an uneven sidewalk, notwithstanding that the code does not say so, because, as the Court put it, it is not their role to correct poorly-written legislation.

CAN'T GET ENOUGH OF SIDEWALKS?  Defendant was properly granted summary judgment for a trivial defect in a sidewalk. The Court noted that photos of the misleveled section of a concrete walkway, which plaintiff acknowledged fairly and accurately depicted the defect, plus plaintiff's testimony about the time, place, and circumstance of the injury, sufficiently demonstrated that the defect was not actionable ( Fasone v Northside Properties Mgmt Corp.).

PRACTICE TIP:  Whenever possible, it is important to obtain photographs of a claimed defect close in time to the accident. If the photos are time-stamped, a plaintiff will have a more difficult time denying that the photo is a fair and accurate depiction of the defect.

CLOSING ARGUMENTS IMPROPER?  During summation, the People used a PowerPoint presentation of certain photographic evidence to emphasize some of its points.  The prosecution added written descriptions onto the images and the defense claimed that the written words should not have been allowed to be viewed by the jury as they refer to evidence not before the jury and were simply an appeal to the jury's emotions.  The Court of Appeals denied the appeal stating that the Prosecution could use the images with descriptions so long as the statements reasonably tracked the evidence that was before the court and otherwise used photographic exhibits that were already admitted into evidence ( People v Anderson).
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