November 2017 Nash Connors, P.C. Newsletter
OK, so it's getting colder and you're pulling out your winter coats from the basement.  Al Roker is telling us that the "arctic blast" is just around the corner (it's snowing as I type this).  As you brace for the cold weather, what better to read than this month's Nash Connors update?  This month you'll find a great round-up of New York cases, an update on pending SUM legislation and some news from the office.  We hope everyone has a safe and enjoyable Thanksgiving!
News from Nash Connors, P.C. 

Jim Nash and Erin Molisani obtained a defense verdict in a motor vehicle accident trial in Niagara County.  Plaintiff claimed that she crossed five lanes of travel and almost reached the other side of the road when she was hit.  She sustained numerous injuries and eventually had a total hip replacement.  Our office represented a driver who told the police that he did not see the pedestrian before the impact.  Notwithstanding that fact, we were able to successfully challenge plaintiff's version of events and have her expert admit on cross-examination that he had some questions about plaintiff's version of events.  The jury returned a verdict in less than thirty minutes.

We are proud to announce that Nash Connors, P.C. has become a member of The Gavel, a nationwide network of vetted attorneys and specialists designed by risk and claims professionals to streamline the defense process through its educational conferences, industry appreciation dinner events and other opportunities.  Dan Connors and Philip Gulisano recently attended an industry appreciation dinner in Las Vegas that was sponsored by The Gavel and conducted in conjunction with the Transportation Insurance Defense Association's annual convention.  The event was attended by Gavel counsel members and trucking industry professionals from across the country.
SUM Legislation Update   
There is a Bill that has passed both houses of the state Legislature that would affect UM/SUM policies in New York.  You can find a copy of it here.  Essentially, an auto liability carrier must offer the same amount of UM/SUM coverage to its insured as the underlying BI limits.  In the event that the insured declines matching limits, he or she must sign a waiver.  Also, carriers issuing policies in New York must also remind their insureds annually of the availability of UM/SUM.  It appears that the insured must annually decline the matching limits too.
We'll continue to monitor this proposed legislation and report any changes in the law.   
Case Law Update

COULDA, SHOULDA, WOULDA:  A plaintiff who could only state that the cause of her slip and fall "could have been grease from the kitchen" was unable to defeat defendant's motion for summary judgment. The court held that in a slip and fall case, a plaintiff's inability to identify the cause of her fall is fatal to her case because a finding that defendant's negligence caused plaintiff's injuries would be based on speculation ( Cross vs Friendship Restaurant Group, LLC).

YOU GOTTA SEE WHAT'S OUT THERE, FOLKS: Plaintiff was riding a bike the wrong way down a one way street, with his friend and co-plaintiff riding on the pegs of his bike. Defendant was driving his vehicle the correct way down the one-way street when there was an impact between plaintiffs and defendant's vehicle. Defendant moved for summary judgment arguing he had no liability. The court found that although the bike "driver" was negligent as a matter of law for riding the bike the wrong way, defendant's deposition testimony presented a triable issue of fact regarding whether he failed to see what was there to be seen ( Rojas vs Solis).

WITH FRIENDS LIKE THIS.... Plaintiff sued his best friend for negligence after defendant put the plaintiff in a "bear hug," causing both men to topple over an air mattress and plaintiff to strike his head on a space heater. The defense moved for summary judgment, arguing that defendant's conduct was intentional and that once intentional offensive conduct is established, the actor is responsible for assault and not negligence. Plaintiff testified in his deposition that defendant "has that goofy mentality, which I love, that's why he's my best friend. He's just-he's innocent, like, it's like nothing would ever be done like to do that to you on purpose." Defendant testified that when he put the plaintiff in a bear hug, they "managed to roll off the air mattress" which raised a triable issue of fact as to whether defendant's conduct, though intentional, was intended to be offensive ( Stampfl vs Salvoni).

DIDN'T YOUR MOTHER TELL YOU NOT TO STEP IN PUDDLES? Plaintiff slipped and fell in a puddle in a hallway that had just been mopped.  In denying the property owner's motion for summary judgment, the court noted that it had not proven that its employee did not negligently mopped the area such that it created the puddle.  Further, the court said the puddle allegedly was "readily observable" does not negate a property owner's duty to maintain its premises ( Dolinar vs Kaleida Health).

BUT, DIDN'T YOUR FATHER TELL YOU TO SNOWPLOW?  An appellate court affirmed the denial of a defense motion for summary judgment based on a storm-in-progress. Plaintiff fell on snow or ice in supermarket parking lot. She testified that it was not snowing at the time of her fall. The appellate court found that the defense did not meet its initial burden of making out a prima facie case. Their expert meteorologist's opinion was described as "at best conclusory" and lacking in evidentiary support. Because defendant did not meet its initial burden of proof, the burden never shifted to plaintiff to create a question of fact whether the ice had pre-existed the storm ( Wrobel v Tops Markets, LLC).

GENERAL vs PRIME CONTRACTOR:  Plaintiff was injured as he was working on a median of the NYS Thruway.  He commenced a Labor Law lawsuit against a company hired to do paving work, along with another contractor (Foit-Albert) hired to inspect the work.  In turn, Foit-Albert subcontracted some of that work to plaintiff's employer. The paving contractor moved for summary judgment on the Labor Law claims.  The court granted it summary judgment on the § 240 claim because there is a distinction between a general contractor and a prime contractor, especially in the context of a state construction job.  A prime contractor has no authority over other prime contractors unless it is delegated work such that it stands in the shoes of the owner.  The contractor was granted summary judgment on the § 200 claim because it did not control plaintiff or the work he was performing and, additionally, because it had no notice of a dangerous condition ( Knab vs Robertson, et al.).

GRAVES AMENDMENT:  An appellate court recently affirmed the denial of a leasing company's motion to dismiss under the Graves Amendment. That statute provides that the owner of a leased or rented vehicle cannot be held liable for personal injuries from the use of the vehicle if the owner is engaged in the business or renting or leasing and engaged in no negligence. In this case, plaintiff alleged improper maintenance of the vehicle, in addition to negligence of the driver. The affidavit of the claims manager from the leasing company stated that the vehicle was properly maintained and operated with no defects or complaints. On appeal, the Court found that viewing the facts in the light most favorable to the plaintiff, the affidavit failed to meet the high standard because it did not provide any specific information about the maintenance record of the car or include any service records in support of the motion ( Nelson vs Citiwide Auto Leasing, Inc.).

A contractor sued its subcontractor's carrier (Utica First) for indemnification arising out of a property damage incident.  During litigation, the insurer refused to turn over the entirety of their pre-denial claim file, claiming that it was privileged as material prepared in anticipation of litigation.  The  appellate court disagreed, holding that the insurer needed show that the file was prepared solely in preparation of litigation, and that it had not done so, especially considering that "the payment or rejection of claims is part of the regular business of an insurance company" ( Cascade Builders Corp. vs Rugar, et al.).

CLAIM FILE, PT II:  An infant plaintiff was injured when she was accidentally shot by a gun owned by her father. The homeowner's insurance denied coverage on the basis that the infant was an "insured person." Plaintiff moved to compel disclosure of the entire claim file including a legal opinion prepared by defendant's outside counsel. In compelling disclosure of the entire claim file but denying disclosure of the legal opinion, the appellate court held that there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than litigation. The basis of the disclosure was that the accident investigation was in part motivated by the decision to provide or disclaim coverage (Celani vs Allstate Indemnity Co.).

FAMILY FEUD:  Plaintiff sued a brother and sister after plaintiff fell down an exterior set of stairs at a property owned by his family.  Defendants both moved for summary judgment, claiming that they had no notice of the alleged defect (a loose handrail).  Summary judgment was denied because even though an expert testified that the railing was stable, a tenant said that the handrail was loose.  However, the sister obtained summary judgment for a different reason: she was an out-of-possession owner ( Kraft v Loso, et al.).

SERIOUS INJURY:  After a motor vehicle accident, plaintiff sued defendant for personal injuries.  Defendant argued that plaintiff did not sustain a "serious injury" because plaintiff had a preexisting injury. The court held that the affidavit of plaintiff's treating physician submitted in opposition to the motion was insufficient because it did not set for the objective medical evidence which the orthopedist used in "distinguishing plaintiff's preexisting condition for the injuries claimed to have been caused by the accident" ( Eason vs Blacker, et al.).

SECOND BITE AT THE (IME) APPLE?  Defendant attempted to compel plaintiff to undergo a second independent medical evaluation after he refused to participate in certain tests during the initial exam. In upholding the lower court's decision denying defendant's motion, the appellate court held that while there is no restriction limiting the number of examinations which a party may be subjected, the party seeking the examination must demonstrate the need for it. The court went on to hold that the examining physician was able to come to a definitive conclusion and did not indicate that the additional tests would have affected her opinions ( Kolodziejski vs Jaskolka).  
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