Last night my wife Alejandra and I attended the Geneva YMCA’s fundraiser, the “Frost Fest”, at Three Brothers Winery right along the eastern shores of Seneca Lake.  Here is a photo of us sitting on the ice thrown:

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Yes, lots of beautiful ice carvings.  And lots of other great stuff to see and do.  Local wine, beer and restaurant tastings and to top it all off a huge fireworks display.

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And notice the beautiful moon-lit evening:

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On January 28 of this Year New York’s legislative bodies put the final touches on the “Child Victims Act”.  It’s almost law. All that is needed now is Governor Cuomo’s signature, which is sure to come soon.

The new law will extend the statute of limitations for adults who were sexually abused as children from the current 23-years-of-age limit to the victim’s 55th birthday.   And for one year, anyone of any age – even if they are over 55 – will be able to sue.  The law also extends (though not as dramatically) the statute of limitations for bringing criminal charges against the abusers.

This is HUGE.  The new law will extend the statute of limitations for suing both the predators and the institutions or others who, through negligence or callousness, facilitated the sexual abuse.

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As a longstanding NY personal injury lawyer, I have seen my clients’ right to privacy disintegrate over the years.  And just when I thought it could not get much worse, it got worse. Let me tell you about it.

First, though, a little background. When you sue for personal injuries, you give up some of your privacy.  The insurance company lawyer has a right to pry into your medical records, at least to the extent they are relevant to the injuries you are claiming from the accident.  So if you are claiming a broken right arm, for example, they have a right to scour through any medical records related to your right arm, whether from before or after the accident.  But they would not have the right to look at records for treatment unrelated to that arm.  You don’t give up all your privacy, just that much of your privacy that is related to the injuries you are claiming.

Now, if you are claiming that your injuries have hampered your lifestyle – as they often do – and that you can no longer do certain things you used to do, the insurance company lawyers can try to uncover evidence that you are either lying or exaggerating your disability.  For example, they can have investigators secretly trail you and try to catch you – on camera – performing activities you claim you can’t do.

Happy New Year’s readers!   In my last blog I talked about my New Year’s plan to volunteer on a week-long assignment in an immigrant detention center near the Texas-Mexico border. I was to help asylum seekers advance their claims.  Not really in my wheelhouse, since I am a New York personal injury lawyer.  But I speak Spanish, and am married to a Guatemalan, and wanted to help out with all the Central Americans claiming asylum on our border right now.  I am writing now to report that my efforts were successful.  Here is an article by a reporter at the Finger Lakes Times about my journey.  Thanks for reading!

Mike Bersani

BORDERLINE: PART II: Freedom fighter

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Merry Christmas everyone!  Hope you all enjoy this holiday season.  Like most of you, I will be spending Christmas with family and friends.  But come the New Year, I will be spending a week with complete strangers.  Here’s my story:

I will be a volunteer lawyer on a week-long assignment in an immigrant detention center near the Texas-Mexico border. I will be helping asylum seekers advance their claims. I will help them present evidence that they have a credible or reasonable fear of returning home because their safety or lives are threatened there. The fear cannot be simply economic. It has to be a fear of persecution based on their ethnicity, religion, nationality, political opinion, or membership in a particular social group.

It’s not an easy claim to win.  As anyone who follows the news knows, our borders are now crowded with refugees, mostly from Central America.  Some politicians have painted these refugees as evil.  Although there may be a criminal here and there in the group, the vast majority of refugees consist of simple, poor, and desperate families seeking safe harbor.  And unfortunately for them, most of their asylum claims will fall on deaf ears.  Their “reasonable fear” of returning home will not fit within the narrow confines of asylum law.

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Most lawyers, whether they make their living representing personal injury victims or others, have a few heroes who inspire them to fight the good fight, to go above and beyond, and to be courageous warriors for their cause.  We at Michaels & Smolak are no different.  So let us tell you about one of our heroes, George Michaels.

To tell the George Michaels story, we need to take a walk through the New York State Equal Rights Heritage Center (located right next to the historic William H. Seward museum and about a mile from the Harriet Tubman home, in our home town of Auburn, New York), which had its grand opening on November 13, 2018. The Center celebrates New York State’s progressive history of promoting social and equal rights by luminaries such as Harriet Tubman.

As we start our tour, the first thing we see is a seven-and-a-half-foot commemorative statue of Harriet Tubman, which adorns the entrance.

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We are proud to announce that U.S. News & World Report  has once again honored Michaels & Smolak with its “first tier” ranking in its “Best Lawyers in America” listings for personal injury litigation firms in the Syracuse, New York metropolitan area. In the 2019 edition, just as past editions, the firm was ranked “first-tier” in the categories of both “personal injury” and “product liability”.

These days, personal injury trial lawyers like us are bombarded with letters and “announcements” notifying us that we have been selected as part of an “elite group” of trial lawyers.  These letters go on to tout the very “stringent requirements” that attorneys must meet in order to qualify for the elite listing.  Only a very small percentage of lawyers, the letters say, have been selected.  And guess what?  YOU have been selected!

There’s only one hitch:  You have to pay for it.  These type of “award” or “honor” letters almost always end with a sentence like this: “to have your name registered as a member of this select group of top attorneys, simply make payment of (a few hundred dollars) to ____”.

scaffold-300x200If you walk into a Syracuse, New York pub on a Friday at 5:20,  and you happen upon a group of personal injury lawyers having an end-of-the-week beer, you might hear them rant about how unfair some New York personal injury laws are.  For example, unlike most States, New York does not allow the immediate family of a wrongful death victim to receive compensation for their grief and heartache at losing their loved one, even if that loved one is a child.  A millionaire drunk driver ran over your thee year old?  Tough luck, mom.  Was he supporting you economically?  Of course not, so you don’t get economic loss recovery.  So what if he was the most important thing to you in the whole world, and your life has been destroyed by losing him.  No compensation for your grief!  You might settle that case for a few thousand dollars, but not the millions it is really worth. Very unfair!

But New York personal injury law has its upside, too.  For example, unlike any other state, New York has something called “the scaffold law”, also known as Labor Law section 240.  That law allows construction workers and others who fall from heights – and  in some cases upon whom objects fall — to get full compensation for their injuries.  This compensation goes far beyond mere workers’ compensation.  The injured fallen worker can sue the general contractor and owner of the construction project for real money, including pain and suffering compensation.  Usually, the case will involve a ladder or scaffold that failed, but can also involve a worker falling because he was not provided with adequate fall protection, such as a harness or barrier.

But here’s the real kicker, and here’s why New York construction accident lawyers like me just love Labor Law section 240:  The injured worker gets fully compensated even if the fall from the height was partially his own fault, as long as Labor Law section 240 was violated.  And Labor Law section 240 is violated almost anytime a construction worker falls from a height, whether because the ladder or scaffold or harness failed, or because such safety devices were not provided, or because proper barriers were not in place.

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In this Syracuse NY Injury lawyer’s last blog post, I talked about how, in most cases, a New York personal injury victim will end up with a much larger settlement with a lawyer than without one.  The problem with “going it alone” is that insurance companies will generally low ball” you an offer, hoping you will take it, sign a release, and go away (forever).

But my clients aren’t the only ones who get low balled.  Sometimes insurance company adjusters will “low ball” me an offer, hoping I will want to make a quick buck and move onto the next case.  But at my law firm, we don’t take low ball offers (except in the rare case where our clients won’t listen to our advice and take the low offer).  Although some New York personal injury lawyers regularly traffic in low ball settlements, I am proud to say ours does not.

In my opinion, those that do are typically large law  firms who advertise heavily and need to “churn” their cases to keep the money rolling in to pay their advertising bills.  At my law firm, where the bulk of our cases come by referral from other lawyers, we would rather handle fewer cases and MAXIMIZE the amount we can get for those few but dear clients.  We make our money by working up a few cases rather than knocking off quick settlements on a swarm of cases.

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I hate to break it to you, but despite all the cute auto insurance ads on TV, insurance companies are not “nice guys”.  At least not if you were injured through the negligence of their insured.  You have to understand this very important fact right from the get-go:  In personal injury litigation, insurance companies are not your friend.  They are not a “good neighbor”.  They are not a cute little lizard.  They are not “by your side”.  You are not in “good hands” with them.  They are a business.  Their business is to pay you as little as possible on your claim so they can yield a bigger profit.

Case in point:  Last week I settled a case for a woman who fell off a horse at a local riding stable during a riding lesson in upstate New York (near Syracuse).  It was her first time on a horse. The saddle spun around while she tried to mount, throwing her to the ground, where she suffered a serious femur fracture.  Turns out she weighed more than the saddle setup could handle. The stable owners knew it, but failed to warn her.  Here was the original position the insurance company took (you need to click the image to read it):

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After we got that letter, we sued  the stable owners.  We then took the deposition testimony of the owners and witnesses.  The insurance company lawyers then asked the trial judge to toss out our case because our client had “assumed the risk” of horse riding lessons, and had signed the waiver.  The trial judge dismissed our case.   We then appealed to the appellate court in Rochester, New York, got the trial judge reversed, and the case reinstated.  Last week, at a mediation, we settled the case for $130,000, which by the way was the amount of money we always thought the case was worth.

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