The attorneys and staff at Nash Connors, P.C. have had a great year.  We've added an attorney, two paralegals and a legal assistant and look forward to our continued growth in 2018.  We cannot thank our clients and business partners enough for the support we've gotten this year.  We sincerely hope that you have a wonderful holiday season and look for the next newsletter in the new year!

IMPROPER SERVICE:  An appellate court held that defendant waived his right to move to dismiss a Summons with Notice for lack of personal jurisdiction (based on improper service) because he waited more than sixty days to make the motion.  More importantly, the court said that because plaintiff waited more than two months, he could not challenge the trial court's decision to grant plaintiff additional time to serve the Complaint pursuant to CPLR 306-b ( Doe vs D'Angelo).

HE MADE HOW MUCH?:  A trial court's ruling that required an IME physician to produce all billing and payment records for examinations performed by all insurance companies and attorneys for the past five years was affirmed by an appellate court ( Porcha vs Binette, et al.). 

PRACTICE TIP: This decision is important because it expands on the amount of billing information to which a plaintiff's attorney is entitled.  Previously, case law had only required the IME physician to turn over billing records for the insurance company involved in the trial.  Now, it appears that plaintiff is entitled to all billing information for every insurance client. 

LABOR LAW:  Plaintiff was injured when a bundle of rebar fell from a crane and hit him.  The appellate court said that he had established a Labor Law § 240(1) claim because (1) the rebar was being hoisted or secured and (2) the rebar fell because of the absence of a safety device to guard against a gravity-related risk.  In addition, the court dismissed defendant's sole proximate cause argument because plaintiff was assisted by other laborers in loading the rebar ( Flowers vs HarborCenter Development, LLC).

UNSUCCESSFUL SISYPHUS (aka LABOR LAW PT II): Plaintiff was a stone tender using nylon straps to move an 8 by 4 foot, 500-600 pound stone. As he and his supervisor attempted to move the stone, the supervisor lost his grip and the stone fell 18-20 inches onto plaintiff's foot. Defendants (general contractors on the project) moved for summary judgment on plaintiff's Labor Law §§ 200 and 240(1) claims. The appellate court found that on the Labor Law § 200 claim, defendants successfully showed that the accident arose out of the manner of plaintiff's employer's work, and the general contractors did not exercise more than general supervision over the work site. On the Labor Law § 240(1) claim, the defendants successfully showed that the granite stone did not fall because of the absence or inadequacy of a safety devices, and plaintiff failed to raise a triable issue of fact ( Portalatin vs Tully Construction Co.).  

INFANT DART OUT: An infant-plaintiff darted out on his bike in front of defendant's car. Defendant moved for summary judgment arguing that plaintiff's actions were the sole proximate cause of the accident. Plaintiff did not oppose the motion, but Supreme Court still denied it. On appeal, the appellate division affirmed the decision, stating that although the surveillance video of the accident confirms that plaintiff was negligent for darting out into traffic, defendant failed to establish prima facie that she was not also negligent. The Court stated that defendant had a duty to see what was there to be seen and use reasonable care to avoid the accident, and defendant's testimony about looking away from plaintiff raised questions on that point ( Ellis vs Vazquez).

INJURED FIREFIGHTER:  A firefighter was injured after slipping on an unknown wet substance on a stairway while responding to a fire in defendant's residential apartment building. The appellate court dismissed plaintiff's claims for common law negligence and violation of General Municipal Law § 205-a on the basis that plaintiff could not identify  the substance or the duration for which it existed. Furthermore, the Court held that the certificate of occupancy, which indicated that the building was in compliance with all applicable statutes, codes and ordinances, shifted the burden to plaintiff to show the stairway was defective in some other manner (Viselli vs The Riverbay Corp.).

   

INJURED BY A POLICE OFFICER: A police officer who struck p laintiff was entitled to the reckless standard for emergency vehicles despite the fact that he mistakenly believed that plaintiff was stopping her vehicle when he proceeded to pass through the red light 10 miles per hour over the speed limit. That the police vehicle's lights and siren were not activated was not material because defendant was not required to activate either of these devices in order to be entitled to the statutory privilege of passing through a red light (Lewis vs City of New York).  

 

 

SO WHAT HAPPENED??? The decedent, a podiatric surgeon, arrived at a hospital to perform surgery. She parked in the physician parking lot at 6:52 a.m., was found in her vehicle at 6:00 p.m., and was pronounced dead at 6:28 p.m. An autopsy showed she died of natural causes. The executor of the decedent's estate commenced an action against the hospital, claiming it created a dangerous condition and failed to provide adequate security to people on its premises. The hospital moved for and was granted summary judgment after showing that it did not breach a duty of care to the decedent (Carney vs State Island Univ. Hosp.).  

                         

   

MVA PROXIMATE CAUSE: Plaintiffs' decedent was riding his motorcycle while lane-splitting and weaving in and out of lanes at a rate of speed in excess of other vehicles on the road, in stop and go traffic, when he struck the rear of a motor vehicle in the center lane. Decedent was thrown from his motorcycle to the left lane, rolled under defendants' tractor-trailer, and was run over by the tractor-trailer's rear wheels. In dismissing the action, the Appellate Division, First Department held that even though the tractor trailer was unlawfully in the left lane at the time of the accident there is no evidence in the record that would support a finding that the statutory violation was a proximate cause of the accident. The Court further held that, the presence of the tractor-trailer in the left lane merely furnished the condition that led to decedent's death, and was not a proximate cause of the accident (Caro vs Chesnick).