We are also pleased to support The Buffalo Garden Party, which takes place on July 28, 2018, during Garden Walk Buffalo, one of the largest garden walks nationally ( Erin Molisani's garden is one of the many featured gardens!).  The Buffalo Garden Party supports the mission of One Symphony Circle, Inc. to preserve and restore the historical landmark building that was designed by renowned Buffalo architect E.B. Green.  ( Jonathan Cox is the immediate past President of the BAS Board of Directors and is an active member of the Board of Directors of One Symphony Circle.)

If you like to run, you'll see a number of runners at the Canisius High School Chilly Challenge in Nash Connors shirts on March 25, 2018.  This is a 5k race in the City of Buffalo.  Jim Nash is a past President of the school's Board of Governors.  (Let us know if any other runners need a shirt!)

PRACTICE TIP: This opinion addressed only the disclosure of photographs and did not discuss whether plaintiff's posts both pre- and post-accident should be disclosed.  However, the court intimated that if such an issue came before them, the result would be the same, thereby subjecting a plaintiff's actual posts to the same level of disclosure as with the photos.

MOTORCYCLE MVA: Plaintiff, while on a motorcycle, was involved in a collision with a vehicle making a left-hand turn in front of him at an intersection. Plaintiff testified he was driving 25 miles per hour immediately before the accident and that he applied his brakes to try to avoid impact when he saw defendant start to turn. Plaintiff moved for summary judgment on liability, arguing that defendant's conduct was the sole proximate cause of the accident in failing to yield the right of way to plaintiff and violating Vehicle & Traffic Law § 1141. The Court found that while plaintiff made a prima facie showing of entitlement to summary judgment, defendant raised a triable issue of fact as to whether plaintiff was driving at an excessive rate of speed and whether he could have avoided the accident through the use of reasonable care. Because there was a question of fact as to plaintiff's comparative negligence, summary judgment against defendant was denied ( Shashaty vs Gavitt).

 

WE LOVE ESPINAL:  Plaintiff brought suit against the property owner and snow removal contractor of the condominium where she slipped and fell on ice. Defendants moved for summary judgment. The contractor's motion was denied because, while he testified about his general practices for snow removal, he failed to affirmatively prove that he did not launch a force or instrument of harm, which was alleged in plaintiff's pleadings. The property owner's motion was properly granted where it successfully established it lacked actual or constructive notice of the black ice that caused plaintiff's fall ( Yvars vs Marble Heights of Westchester, Inc.).

 

DID SOMEONE MENTION ESPINAL?  In a slip and fall action, the defendant snow plow contractor successfully moved for summary judgment under the Espinal line of cases.  Plaintiff appealed, arguing that the snow plow contract displaced the property owner's duty to maintain the property, because it granted the contractor independent authority in some aspects of maintaining the property.  The appellate court disagreed because the contract ultimately gave the property owner some control over how snow and ice was removed, and therefore did not "displace entirely" the property owner's duty.  Plaintiff made a second argument that the contractor "launched an instrument of force" by not properly maintaining the lot.  The appellate court held that this was insufficient to establish a launched instrument of force or harm, because even if it were true that the contractor did not properly maintain the lot, he did not affirmatively create a dangerous condition ( Hutchings vs Garrison Lifestyle Pierce Hill, et al.).