Spring 2000

Vol.4 – No.4

Legalsurvival.com Web Site

Legalsurvival.com, which has been recommended by Fortune Magazine, Starting Point, The American Bar Association, Yahoo, The New York State Bar Association, The Bar Association of Erie County, and USA Today had 91,000 hits during the month of March, 2000. The web site has checklists, a library of frequently asked questions and free legal forms. A wide range of current business and personal legal topics are covered and the site offers seminar information, an online bookstore, information about the services offered by Friedman & Ranzenhofer, P.C., and back issues of the Legalsurvival.com newsletter.

What’s New in Consumer Law?

Insurance company sued for discouraging auto accident victim from hiring an attorney. An insurance company was found guilty of practicing law without a license because its claims adjuster persuaded an accident victim to not hire an attorney and to settle her claim directly with the insurance company. The company was also found to have provided bad legal advice that would have amounted to malpractice if it had been an attorney. The company had adopted a controversial program of training its adjusters to build a rapport with potential claimants in an effort to keep lawyers out of the settlement process.

What’s New in DWI/Traffic Law?

New breath testing devices (by Michael S. Taheri, Esq.). Until last year, the vast majority of police agencies in New York State used the Breathalyzer when conducting breath tests of drivers suspected of Driving While Intoxicated. These Breathalyzers are now in the process of being replaced with a new generation of devices that use infrared spectrometry and other safeguards to measure a defendant’s blood alcohol content.

What’s New in Divorce/Family Law?

Spouse with Alzheimer’s disease awarded support. A husband and wife separated after less than five years of marriage. The wife, who was diagnosed with Alzheimer’s disease, moved for temporary maintenance of $5,500 per month. During the pendency of the divorce, the husband voluntarily provided $3,377 per month for temporary support and the wife received $655 per month from Social Security. She claimed that the amount provided was insufficient and that she now needed institutional care due to her deteriorating condition. The court awarded her an interim non-taxable sum of $4,100 per month. The court ruled that to deny interim maintenance because a spouse can be supported as a public charge, or as a means for providing the wife with an “incentive” to pursue Medicaid planning, was inappropriate. (New York Supreme Court, New York County).

What’s New in Estate Planning/Elder Law?

Why is probate necessary? A will is not operative until it is admitted to probate by the Surrogate’s Court. Admission to probate requires establishing, upon due notice to all required persons: (1) that the will is the will of the decedent; (2) that it has been signed and witnessed and otherwise executed as required by law; (3) that at the time of its execution the decedent was of sound mind; and (4) that it, indeed, was the Last Will and Testament of the decedent. The execution of a subsequent will revokes an earlier will. When the court is satisfied that the above conditions have been established, the will is admitted to probate and is effective for all purposes, including the transfer of the title to real property, as of the time of the decedent’s death. Until such admission, the will has no force and effect and the named executor has no authority.

What’s New in Health Law?

Doctors can be sued for negligent misrepresentation for not revealing that they were receiving financial incentives from an HMO where they told a patient that he did not need a referral to a cardiologist and the patient subsequently died of a heart attack (U.S. Court of Appeals, Eighth Circuit)…$79 million was awarded to a girl with cerebral palsy whose condition deteriorated when her health plan cut off her special care treatment (Fifteenth Judicial Circuit Court for Palm Beach County, Florida).

What’s New in Landlord/Tenant Law?

Landlord of two-family home is liable for worker’s fall. A couple purchased a duplex as a residence in 1978, renting out the other side. Since 1984, they had rented out both units. The New York Appellate Division, Third Department, ruled that they are not shielded by the Labor Law from a negligence action by a contractor who fell off the roof. The homeowners’ exemption of the Labor Law protects “owners of one and two-family dwellings who contract for but do not direct or control the work” from absolute liability. This exemption was designed to protect homeowners who lack sophistication or business acumen from the consequences of strict liability. The court ruled that when a property owner moves out of a dwelling and rents the property, he loses the benefit of the exemption.

What’s New in Small Business Law?

Employer may read employee’s e-mail. A Boston-area electronics manufacturer was concerned about the productivity of two employees. The employer, upon going through the employees’ e-mail files, found an extensive collection of movie reviews, travel plans, artwork and office gossip. The personal e-mails between the two employees totaled 40 full pages over a four-month period. When both employees were fired, they sued the employer for violating their rights to privacy. The jury ruled that any privacy interest the employees may have had was outweighed by the company’s business interest in monitoring their productivity. Employers are free to monitor the use of corporate e-mail and Internet systems, even in the absence of a clear policy warning employees that they can and will do so. However, it is advisable to have a written e-mail policy to prevent employees from suing in the first place. For a sample e-mail policy, see The Upstart Small Business Legal Guide, available at the Legalsurvival.com bookstore.

What’s New in Real Estate Law?

Landowner not liable for prior owner’s toxic dumping. A family that inherited real estate may not be liable for toxic waste that was dumped before they owned it. Under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), a landowner is liable for clean-up only if he owned the property when a “disposal” of the waste occurred. The EPA argued that the family was liable because the toxic waste continued to spread passively after they inherited the property. But the court said that the term “disposal” was limited to “spills occurring by human intervention…This interpretation of the statute is the better view…Because ‘disposal’ is defined primarily in terms of active words such as injection, deposit and placing, the potentially passive words ‘spilling’ and ‘leaking’ should be interpreted actively…In the absence of any evidence that there was human activity involved in whatever movement of hazardous substances occurred on the property since the (family has) owned it, we hold that the (family has) not ‘disposed’ of hazardous substances on the property”. The U.S. Court of Appeals, Sixth Circuit, cited similar rulings from the Second and Third Circuits.

What’s New on the Web?

Three new useful Web sites were launched this Spring:

• All U.S. Supreme Court decisions are now available to the public on the day that they are released at http://www.supremecourtus.gov. Also included are the Court’s argument calendar, schedules, rules, visitors’ guides and bar admission forms.
• The U.S. Social Security Administration’s new service (http://www.ssa.gov/enews) sends Social Security news as it happens. Social Security E-News is an electronic newsletter available free through the agency’s Web site. The monthly newsletter contains general Social Security information and timely updates on specific topics including disability, laws and regulations, retirement, press office, survivors, wage reporting, SSI, data, studies, research and Medicare.
• Have you been charged with DWI or injured by a drunk driver? DWILink is for those whose lives have been affected by alcohol. There were 1.4 million people arrested in the U.S. for driving under the influence of alcohol in 1997. There were also 16,189 traffic fatalities attributed to the use of alcohol. Information is provided on “Criminal Penalties For Alcohol-Related Driving Offenses”, “Tips From Top Guns In Trial Advocacy” and “Strategic Considerations For Defense Counsel When Confronted With License Suspensions”.

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

• To communicate with you in plain language that is easy to understand.
• To promptly return your telephone calls.
• To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
• To have your case personally handled by an attorney.
• To keep you informed of the progress of your case at all times.
• To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
• To not handle your case in an “assembly line” fashion.
• To accommodate the needs of you and your family during the handling of your case.
• To vigorously protect your legal rights.
• To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.