Municipal Liability

MICHAELS & SMOLAK HAS CHANGED! (and other news)

January 14, 2023 | by Michael Bersani

It’s been quite a while since this Central New York Injury Law blogger has posted anything. In fact, almost a year. It was a busy year and blogging gave way to serving our clients’ pressing needs, always our number 1 priority. But to quote Arnold Schwarzenegger (sort of), “we’re back!” And with lots of news:

News Item Number 1: “Michaels & Smolak” is no longer (sigh). Jan Smolak, one of our four lawyers, left the firm to go join his lawyer-wife’s practice, Perotto Law, in Rochester, New York. We wish Jan luck!

News Item Number 2: The other three “Michaels & Smolak” lawyers, Lee Michaels, Mike Bersani, and Dave Kalabanka. have remained right here in the same office in Auburn New York, but are now operating under the name “Michaels Bersani Kalabanka, P.C.”. Yeah, I know, that’s quite a mouthful, which is why we prefer to call ourselves “MBK Law”. Our new website is MBK-LAW.com

Central NY Injury Lawyer’s Lecture to Other NY Personal Injury Lawyers Well Received

November 19, 2020 | by Michael Bersani

Last week I gave a lecture to more than 800 fellow New York personal injury lawyers by Zoom. The hour-long lecture (followed by a 20-minute question-and-answer period) was titled, “How to Defeat the Governmental Immunity Defense”. You can watch a short clip from my lecture here, or you can, if you are a lawyer interested in this area of the law, watch the entire presentation here.

I used power point to guide my audience through the relevant case law and the “do’s and don’ts” of defeating the defense. Thanks to my legal assistant Becky, the accompanying power point presentation was attractive, informative, and well received.

The lecture was by zoom rather than in person because of COVID. I really missed delivering to a live audience. But the advantage was that I got in front of 800 lawyers from all over the State in real time in the same hour. Usually, I’ve got to travel around the State to deliver to rooms of a few hundred at a time.

Coronavirus Lawsuits Already? Syracuse NY Injury Lawyer Explains.

April 6, 2020 | by Michael Bersani

Like almost everyone else on Planet Earth, this Syracuse NY injury lawyer has been holed up at home, hunkering down against the pandemic. My home is in Geneva, NY, which is a pretty nice place to be locked down. People here are looking out for each other. I’ve joined a group of corona virus fighters at a local church preparing cheap and even free meals for folks on the weekend. Can you guess which one in the above photos is me?

My “real” job, though, is not on standstill. In fact, my laptop keyboard is getting quite a workout: I have been conducting online research, shooting out emails to adjusters and defense lawyers, preparing legal briefs, etc. My cell phone has also been working overtime: Insurance adjusters are still working (from home) so I have been trying to settle cases with them. I have also been catching up with clients on the status of their medical treatment.

The court system, however, is frozen solid, at least in the civil arena. All motions, court filings, trials, etc. are suspended. My calendar is just about empty. And that does give me some extra time for reading and writing.

Who Can You Sue For Your Slip and Fall on City Sidewalk? Probably No One, Says Syracuse Injury Lawyer

December 14, 2019 | by Michael Bersani

The City this Central New York personal injury lawyer calls home, Geneva, New York, recently amended its sidewalk law. Many local homeowners are concerned about the effect this might have on their “liability” for snow and ice on sidewalks. Before the amendment, the City Code had said, and continues to say, that homeowners (and business owns) “shall at all times keep the sidewalk (abutting their property) free from ice, snow, grass, weeds, rubbish and other obstructions; and shall at all times keep said sidewalk in a good state of repair . . .”. (Geneva City Code section 306-7). The Code further said, “If any person shall neglect or refuse to comply with the requirements of this section as to snow, ice or other obstructions, or sidewalks out of repairs, the Director of Public Works may cause all necessary work to be done at the expense of the person so in default” (id.) The amended law now states that, for snow and ice, the abutting property owner has only 24 hours from the cessation of snowfall to clean it up.

Bottom line, the City has upped the ante so that now, if you don’t remove the snow and ice within 24 hours, the City will do it and charge you for it.

The question for today’s blog post is, given the mandates of this City Code, can a passerby who slips on snow or ice or trips on a defect on the sidewalk abutting my property sue me for failing to remove snow or ice or otherwise failing to maintain the sidewalk abutting my property so that it is safe?

Syracuse New York Injury Lawyer Explains Why He Loves to Sue the Government

September 2, 2019 | by Michael Bersani

I sue for a living. I say that with pride. I help injured folks get compensation from wrongdoers. But when the wrongdoer is the Government, it gets tricky. And when I say “the government”, I mean not just “THE” Government, but all the cities, towns, counties, school districts legally deemed subdivisions of the State of New York. On the road to victory against such defendants lies a minefield of bombs.

The procedural requirements for suing the government are rigorous. On the way to the finish line, government lawyers will be watching for your mistakes. But not just watching. Slung across their wool suit jackets, they carry a quiver packed with sharp arrows, legal defenses that are available only to government entities.

Why is suing the government so hard? Because the legislature has deliberately set up an obstacle course between the injured victim and government money.

Cuidado! Sidewalk Hazard law in New York versus Costa Rica

July 9, 2018 | by Michael Bersani

Photo above: A New York sidewalk defect, suitably marked with orange cones.

I love traveling and have done a lot of it, including in Mexico and Central America. Right now I am in Costa Rica. Love it here! The people are super friendly, the climate is awesome, the food great. The countryside is spectacular – active volcanoes, dense pristine jungles, and sandy beaches both on the Atlantic and Pacific costs. What’s not to like?

So far I can think of only one thing: Their tort law. Though I have not read their laws, I have to assume – from what I have seen – that someone injured through the negligence of others does not have much of a remedy in Court. Take a look at this video I shot today before you read any further:

Michaels Bersani Kalabanka Helps Get Big Win in Highest Court in New York (Court of Appeals)

December 26, 2016 | by Michael Bersani

Winning is fun, especially when it’s a win not only for your client, but for many other people as well. I am proud to say I recently helped win a victory for people injured through the negligence of governmental entities such as counties, cities and school districts. In New York, these entities are known as “public corporations”. Let me explain.

The case, Newcomb v Middle Country Central School District, was about a teenager struck by a hit-and-run car while attempting to cross an intersection near his high school. He suffered a life-altering brain injury. His parents hired a lawyer who, among other things, tried to investigate whether other people, besides the driver, might have contributed to accident. In other words, was anyone besides the driver at fault? The lawyer did everything he could to get his hands on the police file. But unfortunately the police delayed eight months in getting the lawyer the photos of the accident scene, the police report and other investigative materials.

Once the lawyer got the photos, he noticed that the School District had placed a temporary sign (announcing a high school musical) at the corner of the intersection. The sign appeared to obstruct the line of sight between pedestrian and driver. This was likely a cause of the pedestrian not seeing the car approaching, and the driver not seeing the teenager as he stepped off the curb.

CNY Injury Lawyer Again Hits The Road To Teach Other New York Personal Injury Lawyers How To Sue Government

August 28, 2016 | by Michael Bersani

This fall your Central New York personal injury lawyer will again — for the 9th straight year — give his annual “CLE” (continuing legal education) class to fellow New York personal injury lawyers across New York State. Once again I will be lecturing on the topic of governmental liability for causing personal injuries. In other words, I’ll talk about how to hold the State and its various sub-divisions (counties, school districts, villages, towns etc.) liability for negligently causing personal injuries. Each year, the New York State Trial Lawyers Academy invites me to do so. I am invited to speak to rooms full of New York personal injury lawyers in Buffalo, Rochester, Syracuse, Albany, Manhattan, Queens, Long Island and more.

Why? Because I have been fortunate enough through my work to become seen as one of the top experts in this field of law in New York State. My articles on the subject have been published in New York’s most important law journals and magazines. New York State judges sometimes cite to my work when they decide cases.

Suing governmental entities and agencies such as New York State or its cities, counties, school district, villages and towns is very different from suing a private wrongdoer such as a car driver or a hospital or a business. The procedure is different, the time deadlines are different, the things you can sue for are different, and the defenses that can be raised are different. You name it, it’s different.

CNY Injury Lawyer’s New York State Personal Injury Lecture Tour About To End

October 29, 2015 | by Michael Bersani

Tomorrow I head to Buffalo to give my annual “Municipal Liability” update lecture to a room full of lawyers there. I have already given the same talk in Albany, Syracuse and Rochester earlier this month. Buffalo is the “end of the road” for this year.

I’ve been giving the annual update on this topic to my fellow New York personal injury lawyers all around New York state every year since 2007. To prepare the talk, I have to read EVERY published case from all New York courts on the topic for the entire year, which amounts to hundreds of cases. I then have to write an “outline” summarizing the most important hundred or so cases.

Lots of work? Sure. And it is UNPAID work. Totally voluntary. But still, I get more out of it than what I put in. How?

Violence in Schools: Teachers assault kids, parents assault teachers, and lawsuits everwhere, oh my!

April 18, 2015 | by Michael Bersani

In nearby Tioga County, NY, a 10-year-old boy was recently hospitalized after his math teacher caused this injury (see photo) to the boy’s shoulder. The kid’s mom posted the photo on her Facebook page. Mom and child have served a “notice of claim”, which is the precursor to a lawsuit, on the School District. The notice of claim alleges that the boy was working on a math question, when teacher overheard him say, “c’mon.” The teacher then confronted the boy, dragged and lifted the boy by his right arm from his seat, and pushed him out of the classroom. He has apparently suffered a separation of his clavicle bone. Ouch!

Meanwhile, in another part of New York State — down in Long Island — the mother of a middle school student received a call from her 12-year-old daughter complaining that her teacher had “put her hands on me.” The outraged mother raced to school and somehow got past security (that should not have happened) and into the school. She then made a beeline to the teacher’s classroom, attacked her, put her in a headlock, and then threw her to the floor where the teacher lost consciousness. That’s her lying on the floor in the photo. (It’s all captured on surveillance tape). But that’s not all. While lying on the ground unconscious, the teacher was beaten by several students, including the mother’s 14-year-old niece. Talk about being an unpopular teacher!

So why am I blogging about these two unrelated events? Well, first, they are somewhat related in that they suggest there must be something in New York State’s drinking water making people crazy at school.