December 7, 2013

Injury Lawyer Advertising In Central New York And Elsewhere . . .

Thumbnail image for lady justice.jpgI hate legal advertising. But for a New York personal injury lawyer these days, even the best, it's tough to get by without advertising, at least some. That's because a few lawyers have bombarded the airwaves, TV included, and billboards, with catchy names and easy-to-remember phone numbers. A lot of injured folks know those ads and numbers by heart, and the easiest thing to do when they are injured is to dial one of those numbers instead of investigating who the best lawyer for them might be.

For example, one Rochester New York personal injury lawyer has played off his surname, "Mattar", because it rhymes with "car". So if you are hurt in a car, call William Mattar.

I'm not so lucky. My surname, "Bersani", does not rhyme with "car". But hey -- it DOES kinda rhyme with Ferrari. So what about an ad, "if you are hurt in a Ferrari, call Mike Bersani". The problem is there are not enough Ferraris in central New York where I practice personal injury law. Should I move to Greenwich Connecticut?

But I am not totally luckless with my name. My first name has some potential. I could run ads for motorcycle or bicycle accidents: "If you are hurt on a bike, call Mike". Most people would assume that if my parents named me "Mike" I must be a great lawyer if you are injured on a "bike". After all, isn't that why they assume William Mattar must be good at car accident cases?

Then there are some big-advertising Syracuse lawyers who call themselves, "The Heavy Hitters". No one in my line of business thinks of them that way, but no matter. If you say it often enough apparently people will believe it. Since the moniker "Heavy Hitters" is already taken, I thought of advertising my firm as "the Medium Hitters". Next best thing, right?

I have also considered running a series of ads proclaiming myself "Mike the Machete". I envision a photo of my face superimposed over a muscular, naked torso, waiving a machete over my head. An insurance adjuster would then appear, his face contorted in fear, as he hands me a pile of money.

If you are unlucky enough to not have been given a name that rhymes with car, bike, construction accident, or slip-and-fall, maybe you have some other accident of birth that helps you advertise. For example, what if you just happen to be very good looking. That's where the billboard above comes in. This is a real billboard advertising a pair of young, good looking California lawyers who just happened to be wearing tight-fitting pencil skirts with suspenders (nice touch!) and high heels when the photographer stopped by. It gets better. They call themselves "The Law Offices of Lady Justice". Their phone number is 888-LADY-121. They advertise "open late and weekends".

These ladies might get a lot of calls, but I'm not sure how many of the callers are looking for a lawyer . . .

On second thought, I think I'll nix the "Mike the Machete" ad.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

November 27, 2013

New York State Troopers' New Anti-Texting-While-Driving Weapon.

Blow a stop sign, speed, or turn without signaling, and a cop can see it, stop you, and ticket you. Even talking on a hand-held cell phone (illegal in New York) can be seen from outside your car. But texting-while-driving is different. How does a cop "catch" you doing it? Most texters keep their phone down on their lap or at least below the window line, so a cop traveling behind, or even beside the texter, is not going to see it happen.

Until now. New York has recently given State Troopers thirty-two tall, unmarked SUVs for the express purpose of peering down at drivers' hands and catching them "red-handed".

This reminds me of a funny scene from the 1960's Peter Sellers' film, "A Shot in the Dark", where Peter Sellers and a young lady end up having to escape naked in a small car. They are able to navigate the narrow streets of Paris without other motorists noticing they are naked, until a tall tourist bus pulls up next to them. Hilarious. See the scene here.

Anyway, this new "peering down at you" trick is part of Governor Cuomo's aggressive attack on texting-while-driving, which includes steeper penalties and establishing "Texting Zones" designed to encourage motorists to pull over for texting.

So over the Thanksgiving break -- and beyond -- keep your hands "above board". Don't text yourself into a ticket, or worse, into a graveyard.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

November 26, 2013

Meet "Everyday Hero" Tim Coolbaugh

Thumbnail image for IMG_3331.JPGThumbnail image for IMG_3292.JPG
As Syracuse Crunch fans all know by now, Michaels & Smolak, P.C., your Central New York Injury Law Firm, is honoring "Everyday Heroes" at all Syracuse Crunch home hockey games this winter. "Everyday heroes" are local community volunteers who have given their time and talents to a local charitable organization. In front of the whole Crunch crowd, we regal them, and their family and friends, with free game tickets, food, drink, etc.

Now let me tell you about one of our recent "Everyday Hero" winners, Tim Coolbaugh.

For many guys Sundays means the couch, a brew and a game. Not for Tim (though he loves all three of those!). He has more important things to do. You can find him on Sundays rescuing and transporting abandoned dogs to and from Syracuse to Binghamton, Rochester, Albany or Canada. The only compensation Tim receives is the love of the dogs (and an occasional cat). He gives his time, use of his car, and his money. Why? To save dogs, many of which have been abandoned by "puppy mills" that can't sell them for a profit.

Tim is one of only a few guys in a volunteer field heavily populated by women.

Many other volunteers help rescue these unfortunate animals. But Tim has gone above and beyond, helping save hundreds if not thousands of dogs. Recently Tim made three separate runs, for a total of 500 miles, all in one day!

If you want to help out with rescuing dogs, there are animal shelters and animal protection societies near where you live. Give them a call and find out how to help out.

Our thanks go out to John Dibernardo for nominating Tim.

Come on, help us honor your Everyday Hero, right here, right now! It could be a friend, a relative, or just someone whose volunteer efforts you admire. Click here to nominate someone right now.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


November 24, 2013

Jerry Sandusky, Childhood Sexual Abuse, and What Lawyers Can Do

index.jpgJerry Sandusky sexually abused and raped boys in Penn State showers, and elsewhere on Penn State grounds, and Penn State let him.

Jerry Sandusky is in jail and broke. But Penn State is not. That's why Sanduski's victims, now grown men, are suing Penn State and not Sandusky for money damages. You can't get water from a rock. But Penn State is no rock. It's a reservoir.

Michaels & Smolak has recently taken on a similar case involving a New York State school district whose administrators knew, or should have known, that one of its teachers was sexually abusing and raping young students. And we are suing the school district rather than the jailed and disgraced teacher. Again, you can't get water from a rock.

Twenty-six of the Penn State victims have settled with Penn State for an average of $2.3 million each. But "victim 9" is holding out for more. Everyone admits he suffered the most harm at the hands of Sandusky. Victim 9's attorney says his client "did not consider the offer [from Penn State] sufficient to compensate him adequately for what he needs and deserves." Can you blame him?

By the time victim 9, and most of the other victims got raped, Penn State's administrators knew what was going on and decided to "turn a blind eye". Well, now let's see if they can turn a blind eye to the big bucks they need to shell out to resolve this mess.

History repeats itself. After the Penn State/Sandusky headlines of a few years ago, you would think that institutions such as universities, school districts, and others would finally learn to spot, and stop, abusers in their midst. But as the case we recently took in shows, some people never learn from others' mistakes. They learn only from their own.

While Sandusky rots in jail, as he should, three former officials of Penn State University, the former president, vice president and athletic director are facing criminal charges that they lied to a grand jury, failed to report allegations of abuse, and obstructed justice. Criminal sanctions are one thing, but that won't compensate the victims. Only tort law can do that.

To Victim 9, the lawyers at Michaels & Smolak send you our wishes for either a fair settlement or successful trial. To victims of childhood sexual abuse everywhere, we send this message: don't let your claims die without seeing whether you too can have a measure of justice. Did someone in a position to stop or prevent the abuse allow it to go on? You may have a claim. And your statute of limitations does not even begin to run until you turn 18. Seek legal counsel. Time may be running out . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Child Sexual Abuse Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


November 23, 2013

The Creepy Jury Stalker Story Goes Viral

stalker.jpgThe "Creepy Jury Stalker" story, straight from my hometown, Syracuse, New York, has gone "viral". The New York Law Journal covered it, and so did the American Bar Association Journal not to mention the Syracuse Post Standard.

Now an even more important news source is covering it: Me.

The backdrop to the story is a dental malpractice trial in Onondaga County Supreme Court. The insurer for the defendant dental practice was AIG, the same AIG which helped collapse the global economy in 2008. I guess their fifteen minutes of fame infamy back then wasn't enough, and they have come back to the trough for more.

But I digress. On with the story.

AIG paid for local Syracuse trial counsel to defend its insured defendant but also sent to trial a downstate "litigation lawyer", Scott Greenspan, to "monitor" (according to him) the trial. He had no role in the trial itself but, as you'll see, was an important "presence" at the trial.

At the conclusion of the trial, the jury rendered a verdict in the defendant's (AIG's insured's) favor. Then, in a kind of "debriefing" session after trial, they happened to ask the judge who that "creepy" guy was who had been following them around everywhere during trial. The jurors described Greenspan, and complained that he would follow them into the elevators, into restaurants - wherever they went, he was close behind, or right next to them. Listening and watching. In other words, stalking. And though they were puzzled as to who he was or why he was doing this, they figured out he worked for the defendant because he was often seen talking to defendants' trial lawyers.

Now the story gets very interesting because Judge Karalunas did a very brave thing. She flipped the verdict. She un-rung the bell. She ordered a new trial. She snatched victory from the claws of the defendant, and thus from AIG and its stalker.

Why was this brave? Because even though what AIG and its lawyer did were clearly wrong, reprehensible, even "creepy", there was no evidence, at least none I have seen, indicating that the jury verdict was affected by the stalking. None of the jurors told anyone, as far as I can tell, "we voted to let defendant off the hook because we were afraid of the creep".

Personal injury lawyers like me are just eating this story up. It feeds our love/hate relationship with insurance carriers. Insurance companies are the boogie man we all love to hate. Why do we hate them? Let me count the ways: They wrongfully disclaim coverage whenever they think they can get away with it, never mind years of faithful premium payments by their insureds; they give our seriously injured clients low-ball settlement offers; they advance ridiculous legal positions in court; they spy on our clients through tinted glass vans with zoom-in cameras, sometime right into their bedrooms; they make our clients submit to so-called "independent" medical exams by their biased medical doctors who routinely testify on their behalf that our clients' injuries are fake, exaggerated and/or not causally related to the accident.

Now we get to add one more transgression to the insurance industry's seemingly infinite list of sins: They send creepy lawyers out to stalk jurors at trial. And we love this story because for once the insurance carrier was actually punished for its misbehavior!

I hope Judge Karalunas' decision will stand up on appeal. The insurance companies and their goons need to learn some lessons from the school of hard knocks.

Now let me tell you something about Judge Karalunas. I have argued many motions in front of her, but this summer I had the pleasure of tying a jury trial in front of her. She was extremely sharp, fair and always tried to do the right thing. She showed great respect for the lawyers, the parties, and especially the jury. I must emphasis this -- she made it clear that she respects juries enormously -- in my opinion more so than most judges -- and will go out of her way to make sure the jury has an uplifting experience while performing its civic duty of rendering justice as best it can.

That's probably why she was so harsh on the defendant here. She was clearly outraged -- as we all should be -- that an insurance company would stoop so low as to exert this type of psychological pressure on the jury.

She might be shocked at this behavior, but I'm not. I have become jaded to insurance company foul play. Ask any New York personal injury lawyer who has had this gig as long as I have and I think they will concur. Judge Karalunas hasn't ever been a personal Injury litigator, so this was simply a wake up call for her. I applaud her courage and hope to see her affirmed.

November 17, 2013

Greedy Lawyers Give Us Good Guys A Bad Name

hypocrite.jpgOne bad apple can spoil the whole bunch. Likewise, a few greedy lawyers can make all lawyers look bad. Here's a prime example.

First some background. We New York personal injury lawyers generally charge a 1/3 contingency fee. Sometimes we work our asses off and the case goes south or we get a very small settlement or verdict. Cases that look good at the start can quickly sour when the other side pulls out its evidence. In those cases our per-hour fee can end up being a buck hour or less.

On the other hand, sometimes we get a great result for not-so-much work, and can earn a huge hourly fee. It all evens out in the end and we make a decent living, even a very good one if we are very good at what we do (we are!).

There are exceptions to the standard 1/3 contingency fee, though. One of them is when the injured plaintiff is an "infant", defined by law as anyone under the age of 18. When settling an "infant's" case, New York law requires court approval of both the amount of settlement and the amount of the fee. In my experience, Central New York judges won't allow for a 1/3 fee in an infancy case unless (1) the lawyer has brought the case all the way to trial or (2) the case involved more legal work than is customary for a personal injury case.

For example, if a lawyer takes the case as far as depositions, and then settles before trial, the Court is likely to grant the attorney a 25% contingency fee, maybe 30%, but no more.

We at Michaels & Smolak make it a practice to request only a fee that we believe the judge will deem fair for the infant. As a result, our fee requests in infancy cases have never been rejected.

Apparently not all law firms follow this practice. In a case recently discussed in the New York Law Journal, C.M. v. Syosset (11-cv-01402) a judge recently referred a Long Island law firm to an attorney disciplinary committee after finding the firm's fees were not only too high, but they failed to disclose the true amount.

How high were the fees the attorneys failed to disclose? Guess.
50%?
Nope.
$75%?
Nope, guess again.
100%?
Not even close.

FOUR TIMES THE AMOUNT OF THE SETTLEMENT!!! That's right, the infant had to pay the lawyer 4 times what he got in settlement. This incredible fee was based on a combination of contingency and hourly payment calculations.

When the judge got wind of the fee, he called it "wildly disproportionate" and ordered most of it disgorged.

In my opinion, they should also be ordered to disgorge their law licenses. Getting rid of the bad apples spares the whole bunch.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

November 15, 2013

Should Drunk Who Tries To Kill Himself By Lying Down On Railroad Tracks Be Allowed To Sue Railroad?

train tracks.jpgLet's say you're feeling blue, have a few, get into a drunken stupor and decide to kill yourself by lying down on some nearby railroad tracks. Let's say the railroad company, doing what railroad companies do, then runs a train along its tracks. The engineer spots you almost immediately, puts the train into emergency, but cannot stop the train before it reaches you. You get hurt.

Should you be able to sue the railroad? In De Los Santos v. MTA Long Island Rail Road, the Queens County judge says "no". After reviewing the case law regarding a railroad's liability for striking pedestrians on its tracks, he surmised that the "focus [must be] on whether the reaction of the train operator was reasonable under the attendant circumstances", which they were here.

I represent injured people all day long. They sometimes have some fault in causing their own injury (we personal injury lawyers call this "comparative negligence"). But I don't know if I could sue a railroad on behalf of a suicidal drunk who lies down on the tracks. Takes hutzpah.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


November 14, 2013

A Yellow Dot Can Save Your Life

yellow-dot-web.jpgsheriff yellow dot window.pngAs New York car accident lawyers, we have represented many critically injured motor vehicle accident victims over the years. One thing we have learned is that first responders who arrive at the scene of a wreck aren't always able to take into account the victims' health history or medical conditions before rendering treatment. And that's too bad, because that knowledge can mean the difference between life and death.

For example, I am on a blood thinner (Xarelto) because if have developed some atrial fibrillation - a common and minor disorder of the heart. And I sure would want anyone performing emergency medical care on me to know about that. After all, I could bleed to death if they do surgery on me without knowing I am on blood thinners.

Now there is a potentially life-saving program from the New York State Sheriffs' Association that can help you, your family, and your friends alert first providers about their medical conditions and medications. It's called the "Yellow Dot Program" and it works like this:

Pick up the Yellow Dot kit at your local sheriff's office. Then place the "yellow dot" decal you find in the kit on the driver's side rear window of your vehicle (see photo). This alerts first responders that vital medical information is stored in your glove compartment. Then fill out and place in your glove compartment the "yellow dot card" which has your photo on it and contains all the important medical information that first providers need to know about you. You can complete one card for each person who regularly occupies the vehicle.

Yellow Dot kits save lives and are available for free. Pick up a kit at any of the central New York deputy sheriff's offices listed below:

Cayuga County Sheriff's Office
7445 County House Road, Auburn, NY 13021
(315) 253-1222

Monroe County Sheriff's Office
130 South Plymouth Avenue Rochester, NY 14614
(585) 753-4178

Ontario County Sheriff's Office
74 Ontario Street, Canandaigua, NY 14424
(585) 394-4560

Seneca County Sheriff's Office
6150 State Route 96, Romulus, NY 14541
(315) 220-3200

Tompkins County Sheriff's Office
779 Warren Rd, Ithaca, NY 14850
(607) 257-1345

Wayne County Sheriff's Office
7376 Route 31, Suite 1000 Lyons, NY 14489
(315) 946-9711

Your may also request a kit by going to www.nysheriffs.org/yellowdot.. Request kits for your friends and family too!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

November 11, 2013

Bystanders Accidently Shot By Police Face Uphill Battle In New York Personal Injury Lawsuits

policecar.jpgI came across a New York Times' article today titled, "Bystanders Shot by the Police Face an Uphill Fight to Win Lawsuits." We don't get a lot of cases brought by bystanders struck by police bullets in my neck of the woods (Syracuse & Central New York), but the article interested me because it deals with an area of New York personal injury law I write and speak about frequently; "governmental immunity".

First, a bit of background. The legal doctrine of "governmental immunity" in very general terms says this: As long as a governmental actor, such as a police officer, exercises his or her discretion in making a decision, the victim of any negligence can't sue for the harm. This doctrine is meant to protect our governmental agencies, such as police departments, from a barrage of lawsuits and allow them to make their sometimes necessarily spur-of-the-moment decisions without fear of being sued. It also protects all of us taxpayers from getting hit with huge bills for lawsuit verdicts.

But recently, in my opinion, the Court of Appeals has taken the doctrine too far. As a result, it seems almost impossible to hold a police officer liable for his or her negligence. For example, in the 2010 case of (Johnson v City of New York) the Court threw out a lawsuit brought by a bystander struck by police bullets intended for an armed robbery suspect, even though the police officers testified THEY NEVER EVEN LOOKED TO SEE IF THERE WERE BYSTANDERS NEARBY BEFORE THEY STARTED FIRING. The police won that suit by relying on police guidelines stating that officers should not fire their weapons when "in their professional judgment, doing so will unnecessarily endanger innocent persons". They claimed they had exercised their "professional judgment", and thus were off the hook. But how could they even exercise that "judgment" if they never looked to see whether there were any bystanders? Four of the seven justices said it did not matter; the police were acting within their discretion when they fired, and thus were protected by "governmental immunity".

As a result of cases like Johnson v City of New York, the City has now taken an "aggressive stance" against claims brought by wounded bystanders who sue for injuries caused by stray police bullets. Recent example: In September two officers near Times Square mistakenly believed, wrongly, that a man was holding a gun, shot at him, missed, and instead struck two female bystanders standing in a crowd nearby that was clearly visible to the two officers. One of them has sued for negligence. The City's legal department's stance? This is a "no-pay" case. Won't negotiate a settlement.

I'm not saying that the police should pay for any and all "collateral damage" resulting from their admirable and sometimes heroic efforts to protect us all. Some discretion and mistakes should be allowed for in the heat of battle. All I'm saying is the scale seems to have tilted too far in favor of the police right now, and that means police departments can, with impunity, allow their officers to act carelessly and even recklessly, thus endangering all of us, without paying the price.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


November 11, 2013

Bystanders Accidently Shot By Police Face Uphill Battle In New York Personal Injury Lawsuits

I came across a New York Times' article the other day titled, "Bystanders Shot by the Police Face an Uphill Fight to Win Lawsuits." We don't get a lot of cases brought by bystanders struck by police bullets in my neck of the woods (Central New York), but the article interested me because it deals with an area of law I write and speak about frequently; "governmental immunity".

First, a bit of background. The legal doctrine of "governmental immunity" in very general terms says this: As long as a governmental actor, such as a police officer, exercises his or her discretion in making a decision, the victim of any negligence can't sue for the harm. This doctrine is meant to protect our governmental agencies, such as police departments, from a barrage of lawsuits and allow them to make their sometimes necessarily spur-of-the-moment decisions without fear of being sued. It also protects all of us taxpayers from getting hit with huge bills for lawsuit verdicts.

But recently, in my opinion, the Court of Appeals has taken the doctrine too far. As a result, it seems almost impossible to hold a police officer liable for his or her negligence. For example, in 2010 the Court threw out a lawsuit brought by a bystander struck by police bullets intended for an armed robbery suspect, even though the police officers testified THEY NEVER EVEN LOOKED TO SEE IF THERE WERE BYSTANDERS NEARBY BEFORE THEY STARTED FIRING. The police won that suit by relying on police guidelines stating that officers should not fire their weapons when "in their professional judgment, doing so will unnecessarily endanger innocent persons". They claimed they had exercised their "professional judgment", and thus were off the hook. But how could they even exercise that "judgment" if they never looked to see whether there were any bystanders? Four of the seven justices said it did not matter; the police were acting within their discretion when they fired, and thus were protected by "governmental immunity".

As a result of cases like JOHNSON, the City has now taken an "aggressive stance" against claims brought by wounded bystanders who sue for injuries caused by stray police bullets. Recent example: In September two officers near Times Square mistakenly believed, wrongly, that a man was holding a gun, shot at him, missed, and instead struck two female bystanders standing in a crowd nearby that was clearly visible to the two officers. One of them has sued for negligence. The City's legal department's stance? This is a "no-pay" case. Won't negotiate a settlement.

I'm not saying that the police should pay for any and all "collateral damage" resulting from their admirable and sometimes heroic efforts to protect us all. Some discretion and mistakes should be allowed for in the heat of battle. All I'm saying is the scale seems to have tilted too far in favor of the police right now, and that means police departments can, with impunity, allow their officers to act carelessly and even recklessly, thus endangering all of us, without paying the price.


November 8, 2013

Michaels & Smolak Once Again Ranked "Tier 1 Best Law Firm" By U.S. News & World Report

index.jpgI'm proud to report that Michaels & Smolak has once again been honored by U.S. News & World Report as a "Tier 1" National Best Law Firm for our area of expertise, that is, New York personal injury law.

The 2014 rankings were announced November 1 of 2013. This prestigious national recognition -- recognizing that we are among the best in the nation at what we do -- not only honors us for being good, it might even make us BETTER at what we do! How?

Insurance defense firms and insurance adjusters who sit on the other side of our cases -- and who aren't familiar with the high quality of our work already -- might take notice that they are dealing with a top notch firm that gets top results, and may thus be more inclined to settle with our clients at top dollar without a need for trial.

As always, strong achievement breeds a strong reputation, and vise versa.

The U.S. News & World Report website describes its selection process as follows:

"Rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process".

Yes, the lawyers at Michaels & Smolak are highly accomplished New York personal injury lawyers. But we could not have gotten there without a lot of help -- from a great staff, great referring attorneys and wonderful clients. Thank you all!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


October 10, 2013

dog.jpgI just love it when I'm right!

Last year I blogged about the Court of Appeals (highest court in NY State) case of Hastings v Suave where the Court made an exception to the general rule that, if an animal harms someone, the owner can be held liable only if he knew or should have known that the animal had "vicious propensities". The issue in that case was whether a farmer could be held liable for negligently allowing his cow to stray out into the road and cause an accident. Obviously cows are not "vicious", so under the general rule the farmer could not be held liable for the harm.

The wise Court saw the need for an exception to the rule, and held that "a landowner or the owner of . . . a farm animal . . . may be held liable where the animal is negligently allowed to stray from the property on which the animal is kept even when the animal did not display 'vicious propensities'".

The Court, however, left the question of whether the same exception would apply to stray dogs and cats, stating, "we do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case". I predicted that the "different case" should not take too long to go up to the Court of Appeals because cats and dogs running into the road and causing accidents is very common.

Well a "stray" dog case is now barking at the Court of Appeal's door. Just the other day an intermediate appellate court (the First Department) decided Doerr v. Goldsmith. In that case, the owner (defendant) of a small dog called across the street to her friend (co-defendant), asking the friend to put the dog down so the animal could come to her. The friend released the pooch, who then darted across the road toward his owner's loving arms. The pup failed to look both ways and caused an oncoming cyclist to topple to the ground.

The defendants tried to wiggle their way out of the case on the grounds that their four-legged friend didn't have a "vicious" bone in his tiny body. But in a 3-to-2 split decision (which means an automatic appeal to the Court of Appeals) the Court held that releasing a dog, even a non-vicious one, near traffic under such circumstances can be grounds for liability.

I like the Court's reasoning. The Court observed that this kind of case is entirely different from the kind where a vicious animal attacks someone. It is more analogous to two people playing "catch" with a ball across a street. If the ball had struck the cyclist, causing him to fall, they would be liable, so why should they not be liable for releasing a dog, albeit an non-vicious one, to run across the street into the cyclist's path? Answer: They should!

So I'll make another prediction: The Court of Appeals will agree and affirm! And I am certain that my readers are predicting that my prediction is right :)

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY negligence Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

October 9, 2013

Syracuse Personal Injury Lawyers at Michaels & Smolak honor "Everyday Heroes" at Syracuse Crunch games!

crunch_2012_primary.jpgAs all of Auburn and Cayuga County knows, all summer long, at each home Auburn Doubleday baseball game, Michaels & Smolak honored a"Hometown Hero", that is, a local community volunteer who had given his or her time and talents to a local charitable organization. In front of the whole crowd, we regaled them, and their family and friends, with free game tickets, food, drink, etc.

But that was not enough for us. In fact, the program's success only whetted our appetite for more! So now we have expanded the program to all of Central New York.

This fall and winter, and all the way through April, "Everyday Heroes" will be nominated, selected and then honored at all Syracuse Crunch home hockey games this winter.

What's really cool about this program is how it recognizes that volunteering is not just an individual effort, but a family, community one. If family and friends aren't right next to the volunteers while they are giving of their time and talents, then they are often helping them balance things at home and work so that they can volunteer. That's why we at Michaels & Smolak are again treating not only the volunteers, but their family and friends as well.

Have you noticed an Everyday Hero in your community or neighborhood? Let's thank them together! Nominate someone today for a chance to win 4 tickets to a 2013-2014 Syracuse Crunch home game, $40 food vouchers ($10 per person), 1 parking pass for the Oncenter Garage, 4 custom hockey pucks and recognition on the video board during the game.

Come on, help us honor our Everyday Heroes right here, right now! It could be a friend, a relative, or just someone whose volunteer efforts you admire. Click here to nominate someone right now.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

September 24, 2013

Central NY Auto Accident Lawyer Explains How To End The Texting-While-Driving Crisis In New York

cuomo.jpgI recently blogged about Governor Cuomo's new beefed up penalty for texting while driving (from a 3-point violation to 5 points). But apparently the Gov ain't done tackling texting. His latest anti-texting initiative is to designate old rest stops along the Thruway and other major highways as "Texting Zones" (see photo).

Here's my take on the Gov's new laws: I know the Governor might be naïve to think that his "texting zones" are going to make a lot of texters pull over, just as I know that increased penalties are not likely to put a dent in the texting while driving problem. But I submit he's moving in the right direction.

The truth is that texting while driving is now so pervasive in New York, and probably everywhere else, too, that the Governor's anti-texting measures are the equivalent of sticking your finger in a dike that has already burst. Believe me, I know how ubiquitous the practice is, since I sue texting drivers for the broken lives their habit leaves behind.

The real solution may be a combination of several solutions: Combine stricter penalties, and stricter enforcement, with a mass publicity campaign that makes texting behind the wheel seem shameful in our collective consciousness. Yes, it can be done! How do I know? History is the best teacher.

I am old enough to remember when driving without a seat belt was cool, driving drunk was funny, and tossing litter out of your car window was acceptable. What turned the tide on all these practices were: (1) Stricter "buckle-up" laws and a ferocious buckle-up publicity campaign (remember the TV jingle, "buckle up for safety, buckle up"?), (2) stricter anti-littering fines and a ferocious anti-littering publicity campaign (remember, "don't be a litter bug"?), and (3) harsher drunk driving penalties with a ferocious publicity campaign (remember, "friends don't let friends drive drunk"?).

In all three examples (seat belts, littering and driving drunk) the one-two punch of more serious penalties combined with humongous ad campaigns turned the tide of pubic opinion. What before was cool or ok now became shameful. The ad campaigns were extremely successful in making it socially unacceptable to litter, drive drunk or drive unbuckled.

There may come a day when people are embarrassed or ashamed of being seen texting and driving, just like we eventually became ashamed to be caught driving drunk or littering. Passengers and nearby drivers will give them disdainful looks. That's what we need. A change of collective consciousness.

Yes, mass anti-texting campaigns will be expensive, but slowly, surely, they will change mindsets, and they will save lives. And in the long run, that will save money. Accidents are expensive for all of us . . ..

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


September 21, 2013

Yes, You Can Be Held Liable For A Car Crash Happening Right Now Thousands Of Miles Away -- Syracuse NY Car Accident Lawyer Explains

texting and driving.jpegTexters beware! You might be held liable for a distant car crash happening right now as you sit in the comfort of your living room texting a friend. To find out how this is possible, read on!

A New Jersey appellate court recently held that texting to a driver you know is reading your texts, or is likely to do so, while driving, can make you liable, along with the driver, for any resulting accidents (Kubert v. Best, 2013 WL 4512313, N.J. Super. App. Div. Aug. 27, 2013). This is the first case in the nation expanding tort liability for car accidents to remote texters. Until now, only the texting driver could be held liable for the accident he caused while texting, not the companion texting with him from some remote location.

The case was cleverly argued by plaintiffs' counsel. They pointed to case law that said a passenger in a motor vehicle has a duty "not to interfere with the driver's operations". For example, it has long been the rule that a passenger can be held liable, along with the driver, for showing him a road map to read while driving where the distraction causes an accident.

Plaintiffs' lawyers also pointed to case law that said someone who "aids and abets" a tortfeasor in committing a tort is equally liable for the tort. For example, if a friend is throwing stones from a bridge onto a highway below, and you encourage him to do it, even though you are not doing it yourself, you, along with your friend, can be held liable to those injured below.

Given this existing case law, it was not such a stretch for the Court to conclude that sending texts to a driver you know will read the text while driving constitutes "aiding and abetting" the driver in breaking the law.

I predict that eventually, when the right case comes along, New York courts will follow suit. The rule makes sense. New York already has a Statute (Motor Vehicle & Traffic Law § 1225-d) providing that "no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion". It is not such a stretch to hold a participant liable for exchanging texts with a driver, as long as the participant knew, or should have known, the driver was breaking the law by reading the texts or texting back while driving.

DISLAIMER: In the event that this blog post has just popped up on your smart phone while driving, please note that I have no knowledge you are reading it while driving!!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central and Syracuse NY Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293