Nash Connors, P.C. is very pleased to announce that Jonathan Cox has joined the firm as partner and that Erin Molisani, Christopher Poole and Matthew Louisos have joined the office as associates.  These names should be familiar because we all practiced together at our last office.  Their biographies may be found on our website.

We would like to begin this newsletter by thanking all of our clients who appreciate the work we do and have confidence in our abilities.  We look forward to working with you in the future.  Thank you again for your support!

Please join us in congratulating Erin Molisani, who was recently appointed to the board of the Western New York Defense Trial Lawyers Association.  In this position, Erin will continue to be a strong advocate for the insurance defense bar in the Buffalo area.  She has been practicing insurance defense and Workers' Compensation for nearly a decade.

Jim Nash presented to the Negligence Committee of the Bar Association of Erie County (where he serves as an elected Director) on the issue of snow plow contractor liability.  Jim discussed various issues such as when a snow plow contractor owes a third party a duty of care, contractual and common law indemnification issues and how Additional Insured status plays a role in these situations.  Jim also gave an overview to the key appellate cases in the snow plow contractor context.  Please send Jim an e-mail if you would like copies of the presentation or the cases. 

STORM-IN-PROGRESS:  New York's highest court affirmed summary judgment to a property owner who argued it owed no duty to clear snow and ice during a storm-in-progress.  Plaintiff testified that it snowed the night before his accident, that a "intermittent wintry mix" occurred the morning of his accident and that it was raining when he fell ( Sherman vs. N.Y.S. Thruway Authority).

PRACTICE TIP:  Read the dissenting opinion for more facts of this case.  It appears that the Court of Appeals has enlarged the period for which a property owner can remove snow and ice until after a rain storm has ended.


PLAINTIFF'S STATEMENT IN HOSPITAL RECORD: An appellate court in New York held that the trial court improperly precluded plaintiff's statement to a hospital nurse that contained: "I fell in the street."  In his lawsuit, plaintiff claimed that he was hit by a motor vehicle in the street.  The defense called the nurse as a trial witness to attempt to get the statement into evidence.  The appellate decision said that the trial judge should have allowed the statement because it was an admission against plaintiff's interest ( Berkovits vs. Chaaya).

PRACTICE TIP:  Just because there is a statement in plaintiff's medical records that conflicts with his version of how the accident happened that is advanced in the lawsuit does not mean that the statement gets introduced at trial.  Please remember that you must call a witness to testify about hearing plaintiff's statement (assuming that the plaintiff denies making the statement).


HANDSHAKE INJURY (THIS IS NOT A JOKE!):  The Fourth Department held that defendant was entitled to summary judgment on a claim that he injured plaintiff by how he shook her hand ( Gladstone vs. Fallon).


RIGHT-OF-WAY:  A plaintiff who was driving straight through an intersection with a green light had the right to anticipate that other traffic with a red light would yield to her.  A jury, however, attributed 25% comparative negligence to plaintiff and the Appellate Division ordered a new trial on liability ( Waldo vs. Kang).


SERIOUS INJURY THRESHOLD:  On the issue of the 90/180 day threshold, the Fourth Department said that: "In our view, when a plaintiff presents objective evidence of a medically determined injury along with evidence that a medical provider placed restrictions on his or her daily activities, and there is no apparent explanation unrelated to the accident for those restrictions, it cannot be said as a matter of law that causation is lacking or that the plaintiff's limitations are based solely on subjective pain" ( Williams vs. Jones) .

PRACTICE TIP:  Two of the five appellate judges offered a dissenting opinion.  They wanted to grant defendant summary judgment on the 90/180 day threshold because they did not believe that plaintiff should automatically qualify for a "serious injury" because he was out work for 90 days.  In addition, some of plaintiff's claimed limitations (such as playing basketball) did not constitute his usual daily activities.  This case will now go to the Court of Appeals automatically because of the two dissents and we will keep you posted. 


MUNICIPAL SIDEWALK DEFECT:  The Second Department reminded us that generally an abutting landowner is not liable for defects on a municipal sidewalk unless: (1) there is an ordinance that imposes a duty on the abutting landowner to maintain the sidewalk and the ordinance specifically imposes tort liability for failing to do so; (2) the property owner uses the sidewalk for a so-called "special use" (e.g., when a driveway crosses over the sidewalk) or (3) the property owner created the defective condition. 

In this case it appears that plaintiff tripped on an uneven concrete slab.  The Court said that the property owner should have been granted summary judgment because plaintiff's theory that improper snow removal work caused the defect in the sidewalk was speculative, especially in light of evidence that tree roots were growing in the area of the sidewalk ( Kilfoyle vs. Town of N. Hempstead).


SCAFFOLD LAW:  Defendants were entitled to summary judgment on plaintiff's Labor Law § 240 claim when he fell while replacing a gel that covered a light in a hotel ballroom.  The Second Department said that the work of modifying the light did not "alter or cause a substantial change . . . to the building" to evoke the protections of the Labor Law ( Royce vs. DIG EH Hotels, LLC, et al.).

PRACTICE TIP:  Just because a plaintiff falls from a ladder or scaffold does not mean the case is automatically a Labor Law § 240 violation.  You need to determine what kind of work plaintiff was doing at the time of the accident.  Various cases have said that "routine maintenance" (such as changing light bulbs) does not rise to the level of repairing a building so as to have the Labor Law apply.