October 2017 Nash Connors, P.C. Newsletter
Welcome back to the Nash Connors, P.C. newsletter!  Along with New York's appellate courts, we took a little time off this summer, but we are back with some recently-decided cases around New York.  Who would have guessed it that the Buffalo Bills are 3-1 and in sole possession of the AFC East?  We hope everyone had an enjoyable summer and is ready for the snow to start falling soon!
News from Nash Connors, P.C. 

Super Lawyers magazine this summer published an issue highlighting some of the best attorneys in Upstate New York.  We are proud that Dan Connors, Jim Nash, Jon Cox and Erin Molisani were all mentioned.  You can find a digital version of the magazine here.


Erin Molisani gave an insightful presentation to the Negligence Committee of the Bar Association of Erie County on the topic of default judgments.  Erin spoke both about how a party can obtain a default judgment, as well as the many ways that a defendant can vacate a default judgment.


Please join us in congratulating Jim Nash, whom Buffalo Business First recently named a "40 Under 40."  This is a prestigious list of professionals in the Western New York area who are honored for their professional success and community involvement.
Case Law Update

PLAINTIFF CREATED HIS OWN PROBLEM?
The steps from an apartment landing to a doorway were too high, so plaintiff (a tenant in the building) placed a brick on the landing.  The brick moved and plaintiff fell.  The landlord moved for summary judgment by arguing that plaintiff's act of placing the brick was a superseding intervening cause.  The Appellate Division disagreed because the landlord did not show that the accident was not "a normal or foreseeable consequence of the situation" it created ( Biro vs Keen).

PRACTICE TIP: You may say to yourself: "why didn't the landlord get summary judgment because plaintiff created his own defective condition?"  The court essentially agreed, but reasoned that plaintiff did this because of the original issue with the stairs.  Thus, defendant's alleged negligence (notice about the height differential) eventually led plaintiff to place the brick in place.


PERMISSIVE USE: The Appellate Division reminded us that there is a "strong presumption" that the driver of a vehicle is operating it with the owner's permission and consent.  In this case, the court noted that the uncontradicted testimony of a vehicle owner that the vehicle was operated without his permission is not sufficient to overcome the presumption of permissive use   ( Rhodes vs Scott). 


SLIPPERY WHEN WET: 
Plaintiff slipped and fell on a wet bathroom floor.  Prior to falling, she opened the shower curtain and some bath water collected on the floor.  The court found that the amount of water was "incidental" to the use of the shower and, as a result, it did not constitute a defective condition ( Keller vs Keller).  


MEDICAL DISCOVERY:  The Appellate Division ordered plaintiff to provide authorizations for her health insurance and school records for an in camera inspection because of the "broad and all-encompassing allegations of physical injury" ( Milligan vs BiFulco, et al.) .

PRACTICE TIP: The Fourth Department issued a second decision this month in which plaintiff was required to produce authorizations for her primary care provider, Social Security Disability and pharmacy records ( Snyder vs Asher, et al.).  Typically defendants are entitled to this discovery when plaintiffs seek recovery for loss of enjoyment of life and other related claims.


LABOR LAW:
  In a brief decision, the Court of Appeals has reversed the granting of partial summary judgment on the issue of liability in a Labor Law § 240(1) case.  While plaintiff did submit evidence showing a fall from an elevated surface, the foreman provided testimony which raised a triable issue of fact regarding whether plaintiff's own conduct was the sole proximate cause of the fall.  The court identified conflicting testimony regarding the availability of safety devices and plaintiff's knowledge that he was supposed to wear the equipment but chose not to wear the device for no good reason ( Valente vs Lend Lease).
 
 
LABOR LAW, PT II:  Plaintiff claimed injury after a fall from scaffolding and brought claims under Labor Law §§ 200, 240(1) and 241(6). Prior to the completion of discovery, plaintiff moved for summary judgment on the § 240(1) claim, and the lower court granted it. On appeal, the Appellate Division noted that plaintiff made out a prima facie case that the accident was caused by the failure to provide adequate safety devices and that failure was the proximate cause of the accident. However, the Appellate Division reversed and found that summary judgment was premature where defendants demonstrated that discovery might lead to relevant evidence, particularly that facts may exist establishing that plaintiff's conduct was the sole proximate cause of the accident ( Antonyshyn vs Tishman Construction Corporation, et al.).
 
 
LABOR LAW, PT III:  In a similar case decided the same day as Antonvshyn, the defendant in a Labor Law case moved for summary judgment before discovery was completed on the grounds that it was not the owner, contractor, supplier of the allegedly defective boom lift, or agent involved in the project in which plaintiff claimed injury. In opposition, plaintiff argued that the motion was premature, but failed to set forth any evidentiary basis to suggest that discovery may lead to relevant evidence. Plaintiff could only rely on mere hope or speculation that evidence may be uncovered during discovery which would support liability against defendant, which was insufficient ( Haidhaqi vs F&S Contracting, LLC).
 
PRACTICE TIP: Although it is not clear from these two decisions exactly what the submissions were that led to different results, an affidavit from defendant setting forth what specific facts and issues need to be addressed in discovery may likely have been the type of evidentiary showing that was the deciding factor.


RES IPSA LOQUITOR:  The Appellate Division determined that plaintiff was not entitled to rely on the theory of "res ipsa loquitur" at trial. That theory, meaning "the thing speaks for itself" in Latin, requires proof that the event ordinarily does not occur in the absence of negligence; that the injury-causing instrumentality is within the defendant's exclusive control; and the injury is not the result of any voluntary action by plaintiff. In this case, the plaintiff-tenant claimed injury after a portion of her ceiling in her rental fell on her. Defendant-landlord successfully showed that she did not have the requisite exclusive control over the ceiling where plaintiff had lived in the apartment for over a year at the time of the accident (Correa vs Matsias).
 
 
SUING JOHN DOE?  Plaintiff brought suit to recover for personal injuries sustained when an overhead door fell onto him.  Plaintiff originally sued John Doe, because he did not know who manufactured, produced or maintained the door.  Ten months after the statute of limitations had run, plaintiff named defendant, who then successfully moved to dismiss on the grounds that the claim was barred by the statute of limitations.  The Appellate Division upheld this decision, because plaintiff made no effort to establish that "diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations," as required by CPLR § 1024 ( Walker vs Hormann Flexon, LLC).


SERIOUS INJURY:  Plaintiff sustained injuries to her cervical and lumbar spine as a result of a motor vehicle accident on May 27, 2011. In support of their motion for summary judgment, defendants submitted the reports of an orthopedist and a neurologist who opined that plaintiff suffered sprains to her cervical and lumbar spine as a result of the 2011 accident, which were "superimposed" on prior injuries, and that those injuries had resolved. In denying defendants' threshold motion for summary judgment, the Appellate Division held that the experts' opinion that the plaintiff's neck and back injuries had "resolved" were contradicted by their own findings of significant limitations in range of motion of plaintiff's cervical and lumbar spine which were not "clearly or unequivocally" attributed to the plaintiff's pre-existing accident in 2008 or her subsequent accident in 2012 (Karounos vs Doulalas).
 
 
NO FAULT LOST WAGES:  After sustaining injuries in a motor vehicle accident, plaintiff submitted an application for no-fault benefits to his carrier, which included a claim for lost wages.  At the time of the accident, plaintiff had been unemployed for approximately seven months, but alleged that he was "due to start a new job" but was unable to work as a result of the accident.  Plaintiff provided testimony from a business owner that the business had intended to hire plaintiff and pay him $2,000 per week.  Defendant moved for summary judgment on the grounds that  plaintiff's evidentiary showing for his lost wage claim was deficient because it was speculative.  The Appellate Division agreed, as their review of the business' financing showed that it was not actually able to pay the plaintiff that salary, that the business was essentially defunct, and that shortly after the alleged job offer was made, the business was sold for only $40,000 (Freligh vs GEICO).  
 
 
IS THE GENERAL RELEASE BINDING?  Decedent died from mesothelioma contracted from his exposure to asbestos while working 37 years as a Merchant Marine. Defendant moved for summary judgment on the basis that decedent signed a release in 1997 in connection with an earlier lawsuit involving asbestos exposure. At the time the release was signed decedent had not been diagnosed with mesothelioma. In denying the defendant's motion to dismiss the present action, the Appellate Division held that the release was filled with boilerplate language and even though mesothelioma was mentioned in the release, it was not clear that the decedent knew he had mesothelioma or that mesothelioma was a risk associated with exposure to asbestos (In re NYC Asbestos Litigation).
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