Since our last newsletter, the leaves on the trees have begun to turn color and (amazingly) our beloved Buffalo Bills have won three games in a row.  This can only mean that we are in the midst of fall.  We hope everyone enjoys the beautiful weather and this newsletter from Nash Connors, P.C.

Erin Molisani and her husband Seth welcomed their first child into the family recently!  Perry Thomas Molisani was born on October 4, 2016 and he weighed in at 7 pounds, 7 ounces.  Everyone is happy and healthy.

Please join us in congratulating Jim Nash, who was named one of Western New York's "Legal Elite" by Buffalo Business First and the Buffalo Law Journal.  This is the second straight year that Jim was named to this prestigious list.

CAN A NEGLIGENT PARTY GET SUMMARY JUDGMENT?  The First Department answered what it called "a vexing issue" in this case: must a plaintiff show that he or she is free from fault before obtaining summary judgment on the issue of liability?  In Rodriguez vs City of New York, plaintiff was injured when a garbage truck struck a car that eventually hit him.  Defendant argued that plaintiff was partially at fault for his own accident based on where he was standing.  The Appellate Division (based in New York City) ruled that a plaintiff must be free from any comparative negligence if he wants to obtain summary judgment.

PRACTICE TIP:  This is not the rule in all four Appellate Divisions in New York.  For example, a plaintiff who is comparatively negligent can still obtain summary judgment on liability in the Fourth Department (where Buffalo and Rochester are located) pursuant to Simoneit vs Mark Cerrone, Inc.  Such a split of appellate decisions on an important issue almost requires New York's highest court -- the Court of Appeals -- to make a decision covering the entire state.


ESPINAL:  A property management company that made numerous attempts to repair a water leak in a tenant's apartment was not entitled to summary judgment on the "launch an instrument of force or harm" prong of Espinal vs. Melville Snow Contractors, Inc.  The Court in Karydas vs Ferrara-Ruurds, et al. said that the evidence in the case (namely, four visits by a plumber) raised a question of fact as to whether defendant created or exacerbated the condition.

PRACTICE TIP:  Readers of this newsletter know that we love to discuss the case of Espinal vs Melville Snow Contractors, Inc.  That case says that a contractor does not owe third-parties a duty of care unless: (1) the contractor launches an instrument of force or harm, (2) the injured party detrimentally relies on the performance of the contractor or (3) the contract was so comprehensive and exclusive that it displaced entirely the property owner's duty of care.

The Karydas decision seems to suggest that it is defendant's burden on summary judgment to prove that each of the three exceptions do not apply.  Further, the Court appears to deny defendant summary judgment because it could not prove that the four visits by the plumber did not create or exacerbate the condition.




LANDLORD LIABILITY:  The Second Department reminded us that just because an out-of-possession landlord has the right of entry into an apartment does not mean the landlord has a duty to make repairs ( Han vs Kemp, Pin & Ski, LLC).


BAR FIGHT:  The Fourth Department held that a bar does not have a duty to protect its patrons from a fight that could not have been reasonably anticipated or prevented.  In this case, the evidence showed that the fight participants were at opposite sides of the bar and had little interaction with each other prior to the incident ( Wirth vs Wayside Pub, Inc.).


LABOR LAW:  Plaintiff was not entitled to summary judgment on a Labor Law 240(1) claim when defendant submitted evidence that plaintiff was instructed to use an available harness (recalcitrant worker) and there was an issue as to whether plaintiff merely slipped as opposed to a defect in the scaffold causing the accident ( Albino vs 221-223 W. 82 Owners Corp.).


LABOR LAW, PART II:  The Fourth Department affirmed summary judgment to a defendant on the basis of the "homeowners exemption" of the Labor Law.  Defendant purchased a home located in the Chautauqua Institute that he planned on both using for his own purposes and also for rental income.  The homeowner was making renovations to the house to make it more accommodating.  The court affirmed summary judgment notwithstanding the fact that defendant rented the property for eight of the nine weeks during the summer season ( Fawcett vs Stearns).

PRACTICE TIP:  Remember that just because a property owner has a dual purpose for the property (personal and rental use) does not automatically disqualify the owner from using this exemption to Labor Law liability.


IT'S OK NOT TO KNOW WHAT CAUSED PLAINTIFF TO FALL?  The Fourth Department affirmed the denial of summary judgment to a department store in a premises liability case.  Plaintiff fell while shopping at the Bon-Ton, but could not identify the cause of her fall.  The appellate court reasoned that because plaintiff testified about the presence of a gift box on the ground, a jury could arrive at the conclusion that this box caused the accident "without resorting to speculation" ( Farrauto vs Bon-Ton Department Stores, Inc.).

PRACICE TIP:  When defending a case in which plaintiff cannot identify what caused their fall, it is essentially to find some non-negligent excuse that could have caused the fall, such as a misstep or pre-existing walking issues.


SUPPLEMENTAL BILL OF PARTICULARS:  A plaintiff is not permitted in New York to serve a Bill of Particulars that raises new theories of liability or damages after filing the Note of Issue.  The Second Department held, however, that a plaintiff may file a Supplemental Bill of Particulars post-Note of Issue that lists "the continuing consequences of the same injuries that were alleged in the original bill of particulars" ( Alicino vs Rochdale Vil., Inc.).

QUERY:  So what is the difference between a new injury and a continuing consequence of a previously-pled injury?


YOU WANT MORE POST-NOTE OF ISSUE CASES?  The Second Department permitted a defendant who learned that plaintiff had been involved in prior accidents additional discovery, including a second deposition of plaintiff, despite the fact that the Note of Issue had been filed ( Jones vs Seta).

PRACTICE TIP:  Although the decision does not mention when defendant learned about the prior accidents, presumably this happened after the Note of Issue was filed.  We would find it difficult to believe that a Court permitted post-Note of Issue discovery on an issue that a party knew or should have known about before the close of discovery.  Also, you'll see that the Court did not permit defendant the right to conduct a second independent medical examination of plaintiff.


CONSTRUCTIVE NOTICE:  In this slip-and-fall case involving snow and ice, the Second Department reminded us that a property owner must demonstrate the last time it inspected and cleaned the area in order to show that it should not be charged with constructive notice of a dangerous condition ( Giantomaso vs T. Weiss Realty Corp.).