May 2018 Nash Connors, P.C. Newsletter
Nash Connors, P.C. is pleased to provide you with our May newsletter.  In it, you'll find an announcement about the latest attorney to join the firm, along with a great recap of recently-decided cases from New York State.  We also just celebrated our second anniversary as a law firm.  We'd like to thank all of our clients who made it possible!
News from Nash Connors, P.C.  

The firm is proud to announce that Michael Dixon has joined us!  Mike has more than thirty years of practicing personal injury matters in New York State.  He has tried approximately fifty cases involving premises liability, motor vehicle accidents and other matters.  Many of you also know Mike because he regularly serves as a mediator and arbitrator in personal injury cases.  His bio may be found here.

Normally we don't discuss summary judgment victories in this newsletter, but we're making an exception this month.  Jon Cox got summary judgment for two different snow plow contractors on consecutive days in April by arguing that they did not owe plaintiff a duty of care pursuant to Espinal vs Melville Snow Contractors, Inc.  Can you tell that we have Espinal?

The attorneys at Nash Connors, P.C. were very busy this past month traveling to various insurance conventions.  Phil Gulisano went to the RIMS conference in San Antonio, while Jim Nash and Dan Connors attended the DRI Trucking conference in Chicago.
Case Law Update

WHAT MUST PLAINTIFF SHOW TO GET SUMMARY JUDGMENT?  New York's highest court recently decided that a plaintiff seeking to establish a defendant's liability on summary judgment does not need to prove that plaintiff is free from comparative negligence ( Rodriguez vs City of New York).  
PRACTICE TIP: Readers of this newsletter know that on a number of occasions we have discussed whether a plaintiff who is partially at fault is entitled to summary judgment against a negligent defendant.  The ruling will have big implications to personal injury claims.  You can now expect plaintiffs to affirmatively bring summary judgment motions against defendants to establish liability.  That plaintiff was comparatively negligent will not longer be a defense to such a motion.

  An appellate court found the trial court's granting of summary judgment to a passenger in a vehicle on the issue of negligence was improper when defendant claimed he lost control of the vehicle because of black ice, thereby creating an emergency situation ( Greco vs Grande).

IS TRAFFIC AN EMERGENCY?  A bus driver, who suddenly applied his brakes to avoid the vehicle in front of him, allegedly caused a passenger to be injured.  The appellate court found that the driver was not entitled to summary judgment based on the emergency doctrine because he had the duty to maintain a safe distance between the vehicles (Vanderhall vs MTA Bus Co.).

LABOR LAW, PT I:  An appellate court said plaintiff's motion on Labor Law 240(1) was properly denied when plaintiff testified that he was on scaffolding that did not have guardrails, yet he was provided with a six-foot lanyard that would have prevented his fall (although he did not use it at the time of the fall, he had used it on prior occasions).  The court reminded litigants that guardrails are not required with scaffolding if another safety device is made available ( Weitzel vs State of New York, et al.).

LABOR LAW, PT II:  Defendant admitted in its Answer that it hired plaintiff's employer to do "construction work."  After discovery, plaintiff moved for summary judgment on Labor Law 240(1).  In response, defendant argued that plaintiff was doing routine maintenance, which is not a covered act under the Labor Law.  The appellate court found that notwithstanding defendant's admission that the employer was hired to do "construction work," it was not sufficient to trigger the protections of the Labor Law. ( Clause vs Globe Metallurgical, Inc.).

LABOR LAW, PT III:  In a Labor Law 240(1) dispute, plaintiff was injured when he fell from a makeshift wooden ladder while negotiating the distance between the first-floor slab of the building under construction and the ground about five feet below.  The appellate court held that plaintiff's decision to use the makeshift ladder was not the sole proximate cause of the accident because he was never instructed not to use it ( Jarzabek vs Schafer Mews).

MUNICIPAL EMPLOYEE S.O.L.:  Plaintiff sued a school organization and one of its employees following an accident.  Defendants moved to dismiss based on the statute of limitations, which is one year and ninety days for municipal claims.  The appellate court upheld the denial of the motion because the defense did not establish that the individual was an employee of the school organization and, therefore, entitled to the shortened statute of limitations ( Collins vs Davirro, et al.).

YOU WANT MORE STATUTE OF LIMITATIONS CASES?  An appellate court dismissed a lawsuit where plaintiff was "assaulted, struck, grabbed, battered, beaten, punched, thrown, and seriously injured" by defendant's employee. The court held that contrary to plaintiff's argument, these allegations did not assert a claim sounding in negligence, but rather alleged the intentional tort of assault, which is governed by a one-year statute of limitations (Williams vs 268 West 47th Rest. Inc.).

ESPINAL:  Plaintiff slipped and fell in an icy parking lot and sued the property owner, who commenced a third-party action against the snow plow contractor.  The property owner alleged that the contractor "launched a force or instrument of harm" by piling snow in a certain location.  The appellate court found a question of fact on this issue and reinstated the owner's contribution claim against the contractor ( Chamberlain vs The Church of the Holy Family).

PRACTICE TIP:  Take a look at this case.  The snow plow contractor apparently argued that it placed the snow at the direction of the property owner.  The appellate court seemed to indicate that that if the owner tells the contractor where to pile snow, the contractor has not launched a force or instrument of harm. 

STOP HORSING AROUND:  An equestrian student's lawsuit was not barred by the primary assumption of the risk doctrine when the teacher selected the wrong type of horse for a novice rider, failed to ensure that plaintiff knew how to handle a horse prior to having it trot, and provided an unsafe area for the lesson ( Enos-Groff vs Schumacher, et al.).

HERE'S MORE ASSUMPTION OF THE RISK: Plaintiff brought suit for personal injuries against a municipality after she was struck with a hockey puck while a spectator at a hockey rink owned by the municipality. Defendant moved for summary judgment.  The appellate court said that the municipality was not entitled to summary judgment when it failed to provide increased netting around an ice rink ( Smero vs City of Saratoga Springs). 

" SERIOUS INJURY":  Defendant was not entitled to summary judgment on the issue of serious injury when the independent medical examiner, who said plaintiff's range of motion restrictions were "insignificant," failed to establish what is normal range of motion for the cervical spine ( Monterro vs Klein, et al.).

CLEANING INJURY, PT I:  Plaintiff was an employee of a cleaning service hired to clean a condo following renovation by co-defendant. She was in the process of cleaning floor-to-ceiling cabinets using a stepladder when she fell and was injured. Her Labor Law ยง 240(1) claim was dismissed because her work did not require specialized equipment and was unrelated to any ongoing construction or renovation of the condo ( Holguin vs Barton).

CLEANING INJURY, PT II: Plaintiff was a janitor in a 48-story building, whose duties included removing tenants' garbage from each floor of the building. He and a co-worker were lifting and removing a heavy bag of garbage when plaintiff was injured. He sued the law firm tenant of the 28th floor where the incident occurred. The complaint was dismissed upon the law firm's showing that the bag was not over a weight contractually agreed-upon by the defendant and plaintiff's employer and that his injury resulted from a risk inherent in his assigned work as a maintenance worker ( Moody vs Kelly Drye & Warren, LLP).
NEGLIGENCE WAS NOT THE "ROOT" OF THE ACCIDENT:  A plaintiff who tripped and fell on a root just below the mulch in a landscaped area of a parking lot sued the property owner for negligence. The Court upheld defendant's dismissal on the grounds that a landowner will not be held liable for injuries arising from a condition that is inherent or incidental to the nature of the property and that could be reasonably anticipated by those using it ( Miano vs Rite Aid Hdqtrs. Corp.).

DISCOVERY OF EMPLOYMENT RECORDS:  Plaintiff, a minor, was struck by a vehicle as he departed a bus.  The driver testified that he had been in several accidents before the accident in question.  Plaintiff then requested all records pertaining to the prior accidents, which defendants refused to turn over.  On motion, the trial court held that the documents were to be produced as they were relevant on the issue of negligent retention or supervision of the bus driver.  The appellate court reversed because plaintiff had not alleged negligent hiring, and the records at issue were not otherwise relevant ( Schonbrun vs DeLuke, et al.).

NEW TRIAL ORDERED AGAINST DRIVER: Plaintiff brought suit after she was struck by defendant's vehicle as she walking down the street.  Defendant testified that she saw plaintiff in the street approximately 100 yards prior the accident.  The driver did not reduce her speed and only tried to swerve at the last second, but was unable to avoid plaintiff.  The jury returned a defense verdict, but the appellate court ordered a new trial because defendant's own testimony made it clear that the jury's verdict could not have been reached on any fair interpretation of the evidence ( Blanchard vs Chambers).

BUT THIS DRIVER GOT OUT OF THE CASE:  Defendant driver was granted summary judgment in an infant dart-out case. The proof showed that infant ran across two lanes of travel and into defendant's path of travel without looking. A witness testified that the infant wasn't looking and ran into defendant's vehicle. Plaintiff could not recall the accident and therefore was unable to offer testimony to create a question of fact ( King vs Perez).

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