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As anyone who has not been living under a rock knows, it’s election season.  Boy, is it!  The Trump/Biden contention is one of the most – well – contentious in modern history.  It’s a battle of two completely opposite and irreconcilable narratives:

Trump says he has performed brilliantly in fighting the coronavirus.  Biden says he has failed miserably.

Trump says Biden is senile and incapable of governing.  Biden says Trump is a narcissistic egoist whose every act is aimed at self-aggrandizement and self-enrichment.

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A few weeks ago, Breonna Taylor’s family received $12 million in settlement for their wrongful death case against the City of Louisville, Kentucky and its police department for their botched “no-knock” warrant raid in which Ms. Taylor was killed. When news broke about that settlement, I asked myself, “would she have gotten such a settlement in New York State”?  My answer was “no”.  That’s because New York’s highest court, the Court of Appeals, has, in the last decade or so, narrowed and toughened a rule of law called the “public duty” rule, also called the “special duty” or “special relationship” rule.  Under the recent version of this rule, no one injured by the negligence of a governmental entity (such as a city or its police) can sue for money damages unless the victim can show that the blameworthy officials had a “special duty” toward him or her.  In cases like Breonna Taylor’s, that means that in New York her family would have to show that the police had some kind of verbal communication with Breonna, before she was shot, that made her feel she was safe or protected from harm.

But Breonna Taylor had absolutely no communications at all with the police before they burst open the door in the apartment where she was staying and shot her.  Thus, under New York law, the police did not have a “special duty” toward her.  It is very possible that a New York Court would thus have felt compelled to throw her case out based on lack of “special duty”.

In fact, this is exactly what happened in the recent New York case of Ferreira v. City of BinghamtonThe facts in that case were, in all relevant ways, exactly the same as in the Taylor case.  Jesus Ferreira was staying in a friend’s apartment when a SWAT team burst in with a “no-knock” warrant.  The lead officer wasted no time in firing bullets into the unarmed Ferreira.  Ferreira had done nothing wrong. Fortunately, unlike Taylor, Ferreira did not die.

MGB-photo-223x300Hello there blog readers!  I’m back after my partner Dave Kalabanka hi-hacked this site last week to write about that “Personal Injury Lawyer of the Year” award.  What Dave did not mention is that ALL four lawyers at Michaels & Smolak were again listed for their representation of personal injury victims in the Best Lawyers in America publication this year.  In addition, Dave Kalabanka and I were listed in the categories of representing injured plaintiffs in product liability litigation , and I was also listed for representing victims of professional malpractice.  All these listings were based on “peer review”, meaning that the folks at Best Lawyers asked other lawyers and judges who know our work to rate us.  Most of those rating us were likely our opponents and judges since they best know our work.  So we are all very proud to have made such a strong impression on them.

What the Best Lawyers listings don’t tell is this:  At Michaels & Smolak we don’t work as isolated lawyers representing individual clients.  So it’s a bit misleading to rate us individually. Rather, we work as a team, meeting every second week to discuss our cases.  We also pitch in with the actual heavy lifting on each other’s cases.  For example, Jan smolak might have a case where I will draft his summary judgement motion papers or argue his appeal, or I might do his legal research.  Dave Kalabanka might consult with his network of New York lawyers to find solutions to a problem that has emerged on one of my cases.  Lee Michaels might call any of us at any time of day or night seeking help deciding on a strategic move he is considering making on one of his cases.

So although Best Lawyers rates each lawyer separately, what they really can’t see or feel is how this office works as a team.  We believe that of all the personal injury law firms in the Syracuse area, we have the best “team”, not just because our individual lawyers are outstanding, but because the formula we use to work together creates a powerful “synergy” that is the best in the area.

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Hello there blog readers!  This is Dave Kalabanka, Mike Bersani’s partner. I’ve hijacked his blog for today to interview him about an important award he just got: Mike has been selected as the “Personal Injury Lawyer of the Year” for the Syracuse metropolitan area. A publication called “Best Lawyers in America” bestows this honor on the lawyer with the highest overall positive peer-feedback (judges and other lawyers rate him higher than any other lawyer) for a specific practice area and geographic region. Yes, Mike was the highest ranking attorney in the field of representing injured folks in personal injury litigation for the entire Syracuse Metropolitan area.  Given this tremendous honor, I decided to take some time from Mike’s busy schedule to interview him about it:

DAVE:  Mike, first, congratulations! That’s quite an honor, and well deserved.  Did you know this was coming?

MIKE:  Thanks Dave, and no, it caught me by surprise.  There are many outstanding personal injury lawyers in the Syracuse area, including right here at Michaels & Smolak.  I had no idea I would be selected.

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photo by V. Renee Photography

We’re Auburn’s homegrown personal injury law firm. But our clients come from all over, including Syracuse and Rochester, because of our reputation. But we are not the only big-time homegrown business in this small town. From time to time we like to check out our fellow Auburn success stories. So I recently “zoomed” in for a conversation with Gwen Webber-McLeod, President/CEO another amazing Auburn success story:  Gwen,Inc.

MIKE: Gwen, right from the start, what does Gwen, Inc. do?

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Governor Cuomo recently signed into law legislation requiring passengers in motor vehicles over the age of 16 to buckle up in back.  This is a change from the current law which requires them to wear seat belts only when in the frontseat. The new law takes effect November 1.

Note that in New York the driver of the vehicle is responsible for ensuring that his or her passengers are all wearing seat belts. Buckle up in back or your driver gets the ticket.

Why the new law?  Studies have more conclusively proven that you are much less likely to suffer serious injuries or death if you wear a seat belt, even in the backseat.  In fact, studies show that the use of a backseat seat belt could reduce death rates by 2/3.

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It just occurred to me that after so many years of blogging, I’ve never blogged about how I ended up becoming a Syracuse New York personal injury lawyer.  That’s actually a pretty interesting question because you can ask a thousand ten-year olds what they want to be when they grown up and I can pretty much guarantee you none of them will say, “a personal injury lawyer”.  They might say “lawyer”, but I doubt any of them aspire to be the guy on the big billboard under the worked “INJURED?”

Here’s my story.  Just for fun, I’m going to embed a lie in it.  At the end I’ll tell you what the lie was.  Play along and try to guess what the lie is before you get to the end.

When I finished college, I was undecided on a career, but I knew I wanted to see the world.  So I went back home to Syracuse, New York, where I worked in a textile cleaning company (Coyne Laundry) for a year to save up some money for long trip.

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Every once in a while, my news feed delivers to me some horrendous story about a lawsuit involving a vicious attack by someone’s exotic pet animal such as a monkey or wolf or bear.  Yes, some folks don’t find owning a standard run-of-the-mill dog or cat satisfying enough.  No sir, they want to take a “walk on the wild side”.  They might get a pet wolf, boa, miniature crocodile – you name it.

Since this is a legal blog, and a New York one, I am going to speak about what you have to prove in New York if you are attacked by a pet animal such as a bear or wolf versus the proof you need if you are attacked by a traditional pet – like a dog.  There’s a legal difference!

Let me briefly digress.  We had a case several years ago where our client accepted an invitation to visit a friend who was soon to be the lucky recipient of lawsuit papers signed by yours truly.  What did he do to earn such an honor?  He harbored his own private collection of caged bears and other exotic animals, a miniature zoo. Just a nice little hobby. He loved showing off his trophy beasts to friends and neighbors, and that’s what he did to our client.  Unfortunately, he failed to warn our client about the length of the bears’ arms.  Our client inadvertently wandered too close to a cage, and the bear got him in – well – a bear hug.  I’ll spare you the gruesome details of what happened next.

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I took in yet another boating accident case the other day.  In many ways, it was a typical Finger Lakes boating accident that boating injury lawyers are bound to come across from time to time:  Unbeknownst to the boat operator who had been drinking and was on his cell phone chatting, two of his passengers went for a swim.  The boat operator then put the throttle in forward, and ran them over.  The boat operator then felt the prop of his boat “snag” on what he assumed was seaweed.   The trail of blood, and bodies, behind his boat alerted him to the real problem.

Not a pretty picture.  And not pretty injuries.  I’ll spare you the details.  But here’s what you need to know so this same thing doesn’t happen to you or your boating buddies:

  • Never drink and drive. Not in a car, not in a boat, not on a bike.  Just don’t. The rules for alcohol blood levels, and the penalties, are the same for all motorized vehicles, including boats.

bookI’ve been settling my New York personal injury cases here in the Syracuse area for what some of my colleagues see as larger than normal numbers.  It seems I don’t have to try as many cases these days because the insurance carriers want to pay me to go away before we get to trial.  My “secret weapon”?  The “Rules of the Road” technique to case preparation.

Here’s a litmus test for picking a New York personal injury lawyer:  Ask your would-be lawyer whether he or she uses the “Rules of the Road” technique from the start of litigation through trial.  If he or she looks bewildered, run away.  The best personal injury attorneys in New York and all throughout these United States use it from day one in their case preparation.

The method was devised, or at least perfected, by the team of Rick Friedman and Patrick Malone.  You can get their book here. (I am not affiliated with them and do not get commissions from sales of the book).

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