June 1997

Vol.1 – No.10

What’s New in Consumer Law?

Charities. Before you make a gift to a charity, check with the National Charities Information Bureau (NCIB) at http://www.give.org and GuideStar at http://www.guidestar.org. NCIB has a handy online guide to whether 300 national charities meet their Standards in Philanthropy; a full report on a new featured charity every two weeks; NCIB’s complete guidelines used in evaluating a charity; useful tips to guide you in making charitable contributions; and the opportunity to order a full report on any of the charities evaluated by NCIB. Guidestar, provided by Philanthropic Research, Inc., has a database of comprehensive reports describing the programs and finances of over 40,000 American non-profit organizations. See “Estate Planning Checklist-Charitable Gifts” (Vol. 1, No. 7).

What’s New in Debtor/Creditor Law?

Collection attorney awarded sanctions. A collection lawyer is entitled to sanctions against a debtor who sued him under the Fair Debt Collection Practices Act (FDCPA). Even though the lawyer’s dunning letter contained all the warnings required by the act, the debtor claimed that the warnings were “over shadowed” by a demand that he make an “immediate telephone call” to the lawyer. The debtor was unable to substantiate his claims that he suffered emotional distress from the lawyer’s campaign of deceptive, unfair and abusive debt collection practices (U.S. Court of Appeals, Ninth Circuit).

What’s New in Divorce/Family Law?

Joint Custody. There is a presumption of joint custody or shared parenting in 14 states (California, Florida, Idaho, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nevada, New Mexico, Oklahoma and Texas) and the District of Columbia. The option of joint custody is recognized by all states except South Carolina. Most states define joint custody simply as “frequent and continuing contact”. Therefore, it can encompass anything from an equal splitting of expenses and decision-making to arrangements that are indistinguishable from sole custody with visitation. The real question is what is in the best interest of the child. See “The Right of the Custodial Parent to Move Out of the State” (Vol. 1, No. 4). For further information, order the divorce pamphlet.

What’s New in Estate Planning Law?

Long term care. Most retirees and their families cannot afford the average $4,770 per month for long term care services. Medicare will provide benefits for up to 100 days in a skilled nursing facility if certain conditions are met. The first 20 days of care are usually fully covered. Medicare requires a co-payment of nearly $100 per day for the next 80 days of care. If a New York State Partnership for Long Term Care policy is purchased, the patient will be able to obtain Medicaid coverage after the policy benefits are exhausted. Medicaid coverage will then be based on the patient’s income alone, without consideration of assets. This allows the patient to keep all of his or her assets. For more information concerning the Partnership, call 1-888-697-7582 or visit their Web site at www.nyspltc.org. The New York State Insurance Department offers a book, Long-Term Care Services Currently Being Sold in New York State: Summary of Benefit and Premium Rates, which can be obtained by calling 1-800-342-3736 or visiting their Web site at www.ins.state.ny.us.

What’s New in Health Law?

Some doctors avoid medical malpractice by filing bankruptcy. A medical malpractice judgment can be discharged in bankruptcy even though the doctor was “reckless” (U.S. District Court, Eighth Circuit). The doctor had tried to save a patient money by providing cheaper–but substandard–treatment for an infected leg. The leg eventually had to be amputated. However, the following courts have refused to allow doctors to discharge debts: the U.S. District Court, Sixth District, where the doctor injected a patient with an unsterile needle and improperly treated the resulting infection, the U.S. District Court, Tenth Circuit where a doctor prescribed anesthesia without checking the patients medical history and tried to cover up a mistake; and the U.S. Bankruptcy Court in the Northern District of Texas where the surgeon erroneously removed a nerve from a patient’s hand and then changed records to hide his mistake. (# 10309)

Doctors sue HMO. An HMO who dropped a group of doctors from its “preferred provider” list can be sued for breach of contract, bad faith and “tortious interference with business expectancies” (Connecticut Supreme Court). (New Hampshire Supreme Court) (# 10310)

What’s New in Landlord/Tenant Law?

Court overturns spot zoning. A town’s decision to rezone an asphalt plant in an area of light commercial and residential uses for industrial use was overturned. The asphalt company operated a plant since the early 1960s. Since 1968, when the land was rezoned from industrial to business, the company had operated as a nonconforming use. As the business expanded and volume increased, it repeatedly sought variances from the Town Zoning Board of Appeals. In November, 1998 the town board approved a zoning change of three parcels. A neighboring campground claimed that the town had engaged in spot zoning and that the town had violated the State Environmental Quality Review Act (SEQRA). The court ruled that the town board failed to comply with all SEQRA requirements by neglecting to complete all parts of the Environmental Assessment Form. The court held that the town board engaged in no reasoned consideration of any of the following factors, but instead grounded its determination solely on the economic benefit the community would derive: (1) whether the rezoning was consistent with a comprehensive land use plan and is compatible with surrounding uses; (2) the likelihood of harm to neighboring properties; (3) the availability of other parcels; and (4) the recommendations of the professional planning staff. (New York Appellate Division, Third Department)

What’s New in Personal Injury Law?

$11.5 million award against gun seller. A store which sold a gun to a drunken man who shot his girlfriend is liable for $11.5 million for negligent entrustment. Selling a gun to an intoxicated person presents a foreseeable risk of harm. The gun buyer had consumed a fifth of whiskey and case of beer during the day. Although the store clerk indicated that the buyer did not appear intoxicated, he had to help him fill out the federal firearms form because his handwriting was illegible (Florida Supreme Court).

What’s New in Real Estate Law?

Beware of IRS estate tax lien. If you acquire property from an estate or from a seller who purchased it from an estate, it may be subject to a special tax lien under IRC Section 6324(a)(1). The lien is on all real and personal property of the decedent for ten years and secures the entire estate tax due from the estate. Because the lien is established and perfected by statute, the government is not required to record any instrument evidencing the lien. The lien attaches to an estate on the date of death and runs with the land of the estate until it is divested, even if the land is transferred to a bona fide purchaser for value.

What’s New in Small Business Law?

The owners of two Massachusetts metal processing companies were charged with assault with a deadly weapon when the ventilation system which was designed to exhaust harmful vapors broke and smelters were not supplied with the proper protective equipment. The company allowed toxic dust fumes to escape from the plants metal-smelting operations and to infiltrate the building’s office where one of the victims worked. In the other case, workers were exposed to open pits that contained cancer causing solvents. The owner of a metal scrap company was charged with manslaughter after one worker was pulled into a metal shredder and another was crushed by a loading truck. The employer ignored warnings to guard the shredder and to fix the loader’s failing brakes. OSHA had cited and fined the company for numerous violations.

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.

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