Please enjoy this newsletter from Nash Connors, P.C.
September 2016 Nash Connors, P.C. Newsletter
As we turn the page from August to September, the law firm of Nash Connors, P.C. hopes that everyone had a relaxing summer.  Please enjoy our September newsletter, which includes some news from the firm and case law updates.  As always, please let us know if you have any questions about one of these cases.
We Have a New Attorney!

We are pleased to announce the hiring of our new attorney, Michael Pretsch.  Mike has considerable experience handling Social Security disability claims and will join our litigation team.  His bio may be found here
Super Lawyers

This year's issue of the Upstate New York issue of Super Lawyers profiled a number of Nash Connors, P.C. attorneys, including Jim Nash, Dan Connors, Jon Cox and Erin Molisani.  There are few firms in Buffalo who can say that two-thirds of its attorneys made this list.  We are very proud of the recognition of our trial attorneys!
Case Law Update

PRE-JUDGEMENT INTEREST:  A party is entitled to 9% interest after a "verdict, report or decision" in New York.  The Second Department declined to award a plaintiff pre-judgement interest when the parties stipulated to liability in advance of a damages-only trial.  Plaintiff wanted interest to run from the date of the stipulation, whereas defendant said interest should run only from the date of the jury's verdict on damages.  The Court reasoned that if the NYS Legislature wanted to include voluntary stipulations of liability among the list of things that trigger the running of interest, it would have done it ( Mahoney vs Brockbank).

PRACTICE TIP:  Think of all of the instances in which your insured or client likely is liable to plaintiff and that this liability could be established by way of a summary judgment motion.  Labor Law 240(1) claims and rear-end accidents in which plaintiff sustained a "serious injury" are just two examples.  Instead of opposing plaintiff's motion that you expect to lose, why not just stipulate to liability?  If your opponent does not know the difference between the two in terms of interest, you will be able to hold off the running of interest until the damages trial-- which could be years away!

LABOR LAW:  A safety consultant hired by the property owner/developer was entitled to summary judgement on plaintiff's Labor Law lawsuit.  The Court reasoned that the consultant did not have the authority to supervise or direct the work that ultimately lead to plaintiff's accident; instead, the consultant's job was only to provide "general supervision... which is insufficient to impose liability" ( Marquez vs L&M Development Partners, Inc., et al.).

  In a rare ruling in which the court quantified what constitutes an actionable defect, the Second Department dealt with a plaintiff who fell down a staircase in the apartment building in which she resided. She sued the property owners, who successfully moved for summary judgment on the grounds that the defect was trivial. The court found that the defect in question, measuring one quarter inch wide and one-tenth of one inch deep, was physically insignificant. The defendants also presented proof that the staircase was well-lit, unobstructed, and that plaintiff had successfully traversed it on prior occasions without issue. On that record, the appellate court affirmed the lower court's dismissal of plaintiff's complaint ( Jackson vs Michel ).

Plaintiff was injured when she tripped over the loose edge of a rubber mat that was affixed to the interior stairs in the lobby of defendants' building. Defendants moved for summary judgment and argued that they neither created nor had notice of the defect.  The First Department affirmed summary judgment to defendants because they showed that their porter cleaned the building daily and regularly inspected the mat. Defendant further pointed to plaintiff's own testimony that she looked down at the mat immediately before falling and did not observe any defect. While plaintiff testified that she noticed a bump in the mat after her accident, she admitted that she had not noticed any bump  earlier that day ( Caban vs Bronx Park S. II Associates, et al.).

  Plaintiff fell from an elevated display platform at a store.  Defendants successfully obtained summary judgment by showing that the steps to the platform were clearly marked and that the area was well lit and free of debris ( Pinkham vs West Elm).

SPOLIATION OF EVIDENCE:  Plaintiff slipped on a puddle of liquid in a store and  sought production of the in-store surveillance.  Defendant provided footage from before the accident, but nothing from after the fall.  Plaintiff moved to compel the post-accident video (that defendant no longer possessed).  The Third Department denied plaintiff his spoliation sanction because (1) the store did not have an obligation to preserve the evidence in question, (2) the store did not destroy the evidence with a "culpable mind state" and (3) the destroyed evidence was not relevant to plaintiff's claim ( Atiles vs Golub Corp.).

PRACTICE TIP:  This decision is an interesting read.  The Appellate Division instructs attorneys to explain to the court why certain evidence is not preserved in order to get spoliation sanctions.  With respect to unavailable store video footage, be sure to inquire about the store's retention policy to try to avoid a spoliation sanction.

Plaintiff tripped over wires at a banquet facility.  During the trial plaintiff realized that she had a video of the event.  In her deposition, she said that a video was shot, but that she did not possess a copy of it.  The trial court dismissed plaintiff's lawsuit as the spoliation sanction.  The First Department reversed this decision and said that there was insufficient evidence of willful or contumacious conduct on plaintiff's part, or prejudice to defendants to warrant dismissal of the lawsuit ( Fox vs Grand Slam Banquet).

PRACTICE TIP:  Make sure your discovery demands ask for production of videos as well as photographs.  The defense attorney in this case only sought photos.  In addition, be sure to confirm the lack of videos in plaintiff's deposition.  Also, the parties agreed to a binding high/low agreement prior to opening statements.  The First Department said that this agreement would still be in effect for the second trial.

  Plaintiff was injured when he fell from a "zip line" that he helped construct on a friend's property.  The friend moved for summary judgment by arguing that the doctrine of primary assumption of the risk barred the lawsuit.  The Appellate Division reversed the granting of summary judgment by saying that a participant in a sporting activity only consents to risks that are inherent in the activity.  In that case, plaintiff alleged that the "zip line" was negligently constructed because it had a broken brake ( Zelkowitz vs Country Group Inc., et al.).

PRACTICE TIP:  Just because a plaintiff is injured while doing a sporting or recreational activity does not automatically mean that the property owner is entitled to summary judgment.  Plaintiffs can only assume the risks that are inherent to the sport.  Latent defects on the property and defectively-manufactured sporting apparatuses can be two things that participants are not aware of, and therefore cannot assume the risks.

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