Spring 2006 Edition

Vol.10 – No.4

Elizabeth DiPirro Wins Grandparent Visitation Appeal

A grandmother, (the “Petitioner”) appealed an Erie County Family Court decision denying her visitation with her granddaughter. Her daughter, (the “Respondent”), represented by attorney Elizabeth M. DiPirro of Friedman & Ranzenhofer, PC, PC, P.C., alleged that during her childhood the Petitioner had abused her and her sister. As a result of the reconciliation between the Petitioner and her daughter during her pregnancy, she allowed the Petitioner to have contact with the granddaughter for approximately seven months after her birth. However, the Respondent terminated all contact with the Petitioner because she refused to seek professional mental health treatment. The Petitioner’s only contact with the Respondent’s family, thereafter, was a series of telephone messages in which she threatened to seek an order permitting visitation with the granddaughter. The Appellate Division, Fourth Judicial Department, cited a case that grandparents must establish a sufficient existing relationship with the grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one. The Appellate Division ruled that the Petitioner failed to establish either an existing relationship or an attempt to establish such a relationship. Therefore, it concluded that the Family Court properly determined that the Petitioner lacks standing to sue for visitation.

New Medicaid Law

The Deficit Reduction Act (DRA), effective on February 8, 2006, imposes the following major changes regarding Medicaid eligibility: Increases the look-back period to sixty months for all transfers. Changes the date the penalty period begins to run. The penalty period commences on the later of: (a) the month following the month in which the transfer is made (existing law) or (b) the date on which an individual is both receiving institutional level of care (i.e., in a nursing home or receiving care at home under the Lombardi Program) and whose application for Medicaid benefits would be approved but for the imposition of a penalty period at that time. To start the penalty period, the patients must have $4,000 or less at the time they receive institutional level care and apply for assistance. Home equity over $500,000 renders an applicant ineligible. This provision does not apply if a spouse or child under 21 or a child who is blind or disabled resides in the home. Homeowners can reduce their equity through a reverse mortgage or home equity loan. Annuities must name the State as a remainder beneficiary and balloon payment annuities would be a countable asset. Certain sections of the DRA are not yet clear and may not be clarified for some time. Future state legislation, regulations and court cases will affect the DRA.

Have you Been Hurt in an Accident?

Are you worried what this may mean to your family, your job and your credit? Is the insurance company pressuring you? Are you beginning to feel a bit confused? Friedman & Ranzenhofer, PC, PC, P.C. will help you maximize your benefits, while protecting you and your family. If you have any questions about your responsibilities, your legal remedies or just what the best thing is for you to do, call Michael H. Ranzenhofer at (716) 333-5144. We promise to:

• Communicate with you in plain language that is easy to understand.

• Promptly return your telephone calls.

• Quickly and thoroughly investigate and analyze your case.

• Have your case personally handled by an attorney.

• Keep you informed of the progress of your case at all times.

• Show you the personal care, concern and attention which has been the hallmark of Friedman & Ranzenhofer, PC, PC, P.C. since 1955.

• Accommodate the needs of you and your family during the handling of your case.

Vigorously protect your legal rights.

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

Premises Liability for Terrorism

This article and the following article are the final installment in a series on the Landlords’ War on Terrorism. The Winter 2006 issue contained “Screening Out Terrorists” and “Tenant Wins $2.45 Million for Property Manager’s Search.” Landlords have the duty to protect tenants and visitors from the misconduct of other tenants and outsiders. Failure to execute that duty, including negligent exercise of duties can expose them to great liability. Landlords can be liable as the result of breaching the duty to prevent foreseeable risks by failing to implement security measures. Landlords and property managers are usually not liable for harm that occurs in areas under the exclusive control of tenants. But landlords have a duty to exercise reasonable care in maintaining common areas, e.g. lobbies, stairwells and ventilation systems. In addition to harm that occurs on their premises, landlords are also liable for harm off the premises resulting from conditions or activities on the premises. For example, the World Trade Center disaster caused neighboring buildings to collapse and be exposed to asbestos contamination. Terrorists could target HVAC systems in large buildings to disperse chemical or biological agents. Without carbon and HEPA filters, external air intake systems are very vulnerable to attack from contaminants such as toxic gas (e.g. hydrogen cyanide or chlorine) or aerosolized toxins (e.g. ricin or anthrax). Landlords must exercise reasonable care under the circumstances in maintaining their property in a sage condition. They should take fire safety precautions and provide security depending on the use of the premises and foreseeability of particular risks. The World Trade Center 1993 plaintiffs argued that the Port Authority breached its duty to prevent foreseeable risks by failing to implement security measures, i.e. restricting access to the parking garage which could have prevented the bombing. Factors to determine due care are failure to abide by past practices and policies and industry standards: e.g. every other downtown office building restricted access to parking garages. Landlords should update their policies and procedures to include:

• guidance on the signs of terrorism;
• comprehensive policies to safeguard residents and facilities;
• contingency plans for disaster response;
• emergency training of staff;
• crime prevention and resident safety awareness programs; and
• anti-terrorism insurance coverage.

Cooperation with Law Enforcement Agencies

Commercial and residential landlords are viewed by law enforcement agencies as central to their anti-terrorist efforts. Landlords are uniquely positioned to obtain detailed information about suspects: addresses, income sources, bank records and acquaintances that the police need. Although landlords want to safeguard their properties and tenants from the risk of terrorist attack, they face conflicting legal duties that make cooperation with the police problematic. Legal duties to protect tenant’s privacy and avoid discrimination are hard to reconcile with community security goals. Landlords should not disclose nonpublic information to law enforcement officials about a tenant, employee or applicant without a subpoena or search warrant. The U.S. Patriot Act provides landlords and property managers with liability protections and rights to compensation for assisting the FBI. The Act also restricts what information can be disclosed by a landlord as to its participation in the investigation. The FBI may obtain books, records and other documents for investigations of international terrorism and covert intelligence activity if it obtains a magistrate’s order. Landlords who produce documents in good faith are immune from liability. The Act provides for the installation of a pen register or trap and trace device pursuant to a court order. These devices capture telephone numbers and Internet routing and addressing information. Landlords may request compensation for the reasonable costs incurred in helping the FBI set-up these devices.

Tenth Anniversary of LegalSurvival.com

Online since 1996, LegalSurvival.com is a comprehensive source of legal information, tools and news. Consumers, small businesses, lawyers and law students are offered a wealth of free services such as forms, newsletters, FAQs and legal checklists. Also featured are a bookstore, discount legal plans and marketing tools for attorneys. The LegalSurvival.com website and newsletter have been highly recommended for the free information provided on many legal topics: “For a wide range of free information – from how to find a lawyer to how to start a business, with a minimum of legalese. The Legal Survival site also offers to e-mail its newsletter to you.” USA Today. “This site from Friedman & Ranzenhofer, PC, PC provides excellent information on estate planning. It presents information and articles on tax law and recent court cases, and you can download, for free, forms for making lists for wills and a health care proxy. The estate-planning checklists are very complete, and there is even one for the trustees’ duties. The FAQs on executors and wills are worth the visit too.” FORTUNE MAGAZINE. “Legal Survival is a very active Web site…where the law is presented in easy-to-understand lay terms for consumers and small business owners.” NEW YORK STATE BAR NEWS. “…very interesting free…electronic newsletters…include…the Legal Survival newsletter, from attorney Robert Friedman, author of several law books and a columnist for the Buffalo News, dealing with developments in such areas as consumer protection, debtor/creditor relations, divorce, estate planning, health, landlord/tenant, personal injury, real estate and small business. Mr. Friedman’s site even includes instructions on how to seek permission to private label the newsletter or reprint its contents…” The American Law Institute-America Bar Association.

Why You Need a Health Care Proxy AND a Living Will

The patient’s treating geriatrician recommended that she be given a percutaneous endoscopic gastrostomy (PEG) tube for hydration and nutrition because she could not be fed by mouth. The patient’s daughter, invoking her status as health care agent under a statutory health care proxy, refused to authorize the surgery. The patient’s sister petitioned for an order authorizing the PEG surgery. The Queens County, N.Y. Supreme Court pointed out that under New York’s health care proxy law, a patient’s preferences regarding artificial nutrition and hydration must be specified before his or her agent is deemed to have the authority to decide these questions. If a patient does not clearly indicate in an advanced directive that nutrition and hydration are to be withheld or withdrawn, nutrition and hydration must be provided. Since the patient left no written instructions in her health care proxy regarding the administration of artificial nutrition and hydration, and since it was conceded that her wishes in that regard were not reasonably known and could not with reasonable diligence be ascertained, there was no clear and convincing evidence on this specific issue. Under the circumstances, the court found that the patient’s daughter was without authority to make decisions about artificial nutrition and hydration for her mother.

Verdicts for Negligent Hiring

• $29,000,000 – Truck driver who was high on methamphetamine when he caused a fatal crash had never been drug tested by his employer. (Shelby Co., Ala., Circuit Court)
• $4,250,000 – Minister who sexually molested boys was ordained by the church despite its knowledge of the abuse. (Tarrant Co., Texas, District Court)
• $3,000,000 – Medical group was responsible for patient’s rotator cuff tear caused by an unlicensed rehab therapist it called an “exercise specialist.” (Essex Co., N.J., Superior Court)
• $3,000,000 – A tower toppled because bridge inspectors failed to discover defects. (Miami-Dade Co., Fla., Circuit Court)
• $997,000 – A drug company representative, who was on meds when she crashed into the car ahead of her, had a bad driving record. (Nueces Co., Texas, Court)
• $368,700 – A bouncer with no experience choked a patron and unnecessarily detained him. (Philadelphia Co., Pa., Court C.P.)
• $225,000 – An underage waitress became unruly and cut a patron’s face with a smashed bottle. (New York Co., N.Y., Supreme Court)
• $157,500 – A warehouse employee who hit a motorist on a drunken joyride was hired without a background check, which would have revealed DUIs. (Alameda Co., Calif., Superior Court)

Verdicts Against Cities

• $75,000,000 – Exposure to lead, arsenic and mercury from incinerators caused some local children to develop learning disabilities. (Duval Co., Fla., Circuit Court)
• $5,100,000 – A sanitation worker slipped on an oil slick in a poorly maintained garage floor. (Kings Co., N.Y., Supreme Court)
• $1,647,803 – City failed to clear snow and ice from sidewalk days after snowfall, resulting in pedestrian’s knee injury. (Bronx Co., N.Y., Supreme Court)
• $613,000 – A stairway in a city-owned property collapsed under a furniture mover, causing serious knee injuries. (Bronx Co., N.Y., Supreme Court)
• $500,000 – A driver of a sanitation truck ran over a co-worker causing leg-crush injury. (Bronx Co., N.Y. Supreme Court)
• $225,000 – A student was wrongfully charged with possession of a controlled substance for a piece of soap that looked like crack. (S.D., Fla.)
• $93,088 – A streetcar driver failed to lower the stairs at a stop; resulting in a passenger falling and injuring his wrist. (San Francisco Co., Calif., Superior Court)
• $25,000 – The city demolished a house after a fire without the owner’s consent. (Erie Co., N.Y., Supreme Court)

Disclaimer

While a great deal of care has been taken to provide accurate and current information, the ideas, suggestions, general principles and conclusions presented in this newsletter are subject to local, state and federal laws and regulations, court cases and any revisions of same. The reader is thus urged to consult legal counsel regarding any points of law – this newsletter should not be used as a substitute for competent legal advice. The purpose of this newsletter is to give the reader a general understanding of the law – not to provide specific advice. Every effort has been made to achieve accuracy. The law constantly changes and is subject to differing interpretations. Always consult with your attorney and act only on his or her advice. Victoria Square Publishing Co. Inc. and Friedman & Ranzenhofer, PC, PC, P.C. shall not be responsible for any damages resulting from any inaccuracy or omission. This newsletter is designed to provide accurate and authoritative information in regard to the subject matter covered. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Certain portions of this newsletter may be applicable only to New York State law.