Summer 2004 Edition

Vol.9 – No.1

Personal Injury Settlements

Veteran trial attorney, Michael H. Ranzenhofer of Friedman & Ranzenhofer, PC, PC, P.C., successfully handled the following personal injury cases over the past several months: The family of a 57-year-old member of the Buffalo Fire Department received $100,000 from the City of Buffalo and Nationwide Insurance Company when he aggravated a lower back injury during an automobile accident (April 2004) A 47-year-old Genesee County woman wins $90,000 from Healthcare Underwriters Mutual for injuries she sustained when a venetian blind fell on her head while working at United Memorial Hospital (April 2004) A 58-year-old Orleans County woman wins $40,000 after she slipped on ice and broke her leg in a Jubilee Foods parking lot (March 2004) A 75-year-old Lancaster woman accepts $20,000 from Federated Insurance Company for a knee injury she sustained when she tripped over torn up flooring at a Tops Supermarket (March 2004) A 50-year-old West Seneca man accepts $18,000 from the City of Buffalo for a finger injury sustained when his finger became lodged between a loose bleacher plank and a metal post (February 2004) A 33-year-old Batavia woman accepts $25,000 from Utica National Insurance Company when she tripped over a broken concrete curb at her daughter’s school and broke her wrist (January 2004) A 63-year-old West Seneca volleyball official accepts $12,000 from Network Adjusters when he injured his knee when a volleyball stand, upon which he was officiating, collapsed (December 2003) An 11-year-old Buffalo boy wins $15,000 from Travelers Insurance Company when bitten on the arm by a neighbor’s dog (February 2004). 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, New York Trial Lawyers Association, New York State Trial Lawyers Association and Erie County Bar Association Negligence Committee.

Estate Planning Seminars

“Crucial Senior Updates Workshop on How to Survive Your Retirement” will be presented by Robert Friedman of Friedman & Ranzenhofer, PC, PC, P.C. and Michael W. Buettner, registered financial consultant of Raymond James Financial Services, Inc. on Thursday, October 7, 2004 at Vinecroft Retirement Community, 5945 Vinecroft Drive, Clarence Center, New York and on Tuesday, September 21, 2004 from 6:30 to 7:30 p.m. at Montgomery Park Retirement Residence, 6363 Transit Road, East Amherst, New York. Learn how to protect your assets from catastrophic illness and nursing home costs, how estate taxes affect you, ways to invest in today’s economic times and ways to maximize your retirement distribution. The topics are: techniques to minimize the cost and delays of probate, how to qualify for Medicaid for nursing home care, financial management and medical decision-making in the event of disability, how to provide for your dependents and favorite charities and asset protection strategies. The legal tools for retirement, financial and estate planning which will be discussed include: wills, trusts, life estate deeds, guardianships, health care proxies, private annuities, IRAs, long term care insurance and life insurance. There is no registration fee. To register, call (716) 333-5144.

Landlord Seminars

“Landlord Legal Survival” will be presented by attorney/author Robert Friedman on Monday, October 25, 2004 from 6:00 to 9:30 p.m. at Clarence High School, Room 121, 9625 Main Street, Clarence, New York. Mr. Friedman will discuss evictions, leases, Small Claims Court, discrimination laws, civil liability, insurance, security deposits, elderly tenants, drugs, debt collection and lead paint regulations. To register, call Clarence Community Education at (716) 407-9290 or visit www.clarenceschools.org.

Delivery of Deed is Key to Medicaid Eligibility

A woman signed a quitclaim deed in January of 1998 conveying ownership of her home to her two children for the consideration of $1. Although she physically delivered the deed to one of her daughters in January, 1998, the deed was not actually recorded until the house was being prepared for sale in September, 2002. The county Social Services Department denied the woman’s application for Medicaid on the grounds that the house valued at $59,900 had been transferred in September, 2002 for less than fair market value. The Department imposed a penalty period of eleven months, during which the woman would be ineligible for Medicaid coverage for the cost of nursing facility services. The Department determined this by dividing the $59,900 value of the home by the $5,393 applicable regional penalty rate at that time. A transfer for less than fair market value, unless it meets an exception, will cause a Medicaid applicant or recipient to be ineligible for nursing facility services for a period of months equal to the total cumulative uncompensated value of all assets transferred during or after the look-back period, divided by regional penalty rate (the average cost of care to a private patient for nursing facility services in the region). The “look-back period” is 36 months immediately preceding the date that the person receiving nursing facility services is both institutionalized and has applied for Medicaid. In the case of payment to or from a trust, the look-back period is 60 months. At the Erie County Department of Social Services Fair Hearing, it was determined that the Department’s denial of the Medicaid application was incorrect under New York Real Property Law because the transfer of real estate takes effect from the date of delivery, not the date of recording. For further information on Medicaid, send a stamped ($.62) self-addressed envelope to P.O. Box 31, Akron, New York 14001 with a request for pamphlet “M”.

Deed Restrictions Prohibit Cell Tower

A homeowner’s association had deed restrictions that prohibited any building except single-family homes and banned any trade or business whatsoever. One of the owners leased 2,000 square feet of one lot and a right of access on an adjacent lot to Verizon Wireless to build a cell tower. The other owners sued to enforce the restrictive covenants and have the tower removed. Meanwhile, the town zoning board approved a special permit for a 120-foot cell tower with a two-story equipment storage shed at the base and parking space for maintenance vehicles. The board had rejected eighteen alternative sites because they did not provide adequate cellphone coverage. Verizon argued that the public policy underlying the Federal Telecommunications Act of 1996 had precedent over the covenants. The act provides that the regulation of the placement, construction, and modification of personal wireless service facilities by any state or local government shall not prohibit or have the effect of prohibiting the provision of personal wireless services. However, the New York Court of Appeals found that enforcing the covenants would not prohibit Verizon from providing service, because the cell tower could have been placed elsewhere in the town. The court said that upholding Verizon’s contractual rights in no way denies wireless telecommunication services in the town. The court also rejected Verizon’s argument that upholding the covenants in spite of the town board’s decision to approve a permit would undermine the town’s authority. The court ruled that Verizon and the town cannot negate the restrictive covenants by ignoring them and proceeding with the permit process and construction. The court noted that the act’s anti-prohibition provision applies to state or local governments and does not preempt the power of private citizens to enforce their contractual rights, or limit judicial enforcement of those rights. Therefore, Verizon must remove the tower. What Clients Like About Elizabeth M. DiPirro “Elizabeth responded to questions and concerns in a thoughtful way and is very thorough. You don’t always find that quality in lawyers.” M.M. of West Seneca, NY… “I want to thank you again for your representation of me in family court. I couldn’t have had a better outcome. I will be using you and your practice for all my legal needs from now on.” K.W. of Hamburg, NY… “We found Elizabeth DiPirro to be very friendly, informative, knowledgeable and thorough. She took care our our wills expediently. We would and have recommended your firm highly. Thank you once again.” J.P. of Cheektowaga, NY. We are often asked if we have time to serve additional clients. We appreciate your business, and we would also appreciate your referrals. We are a growing firm so new clients are welcome. Please mention our name to your friends, relatives and business associates for estate planning, real estate, personal injury, probate, criminal, traffic, marital, family, bankruptcy, business, municipal, corporate, debt collection, landlord/tenant and elder law matters.

Nursing Home Lawsuit Verdicts

After a 78-year old woman fractured her wrist and hip, she was admitted to a small nursing home in rural Texas for a few weeks of rehabilitation. While at the nursing home, she suffered from pressure sores, malnourishment, dehydration and other health problems so severe that she was hospitalized several times. By the time of her third hospital admission – two and a half months after she entered the nursing home – her health had completely deteriorated and she lapsed into a coma and died. Her family obtained a $25 million verdict against the nursing home. A $10 million verdict was obtained in March of 2004 against a Mississippi nursing home that failed to properly treat an elderly woman whose leg was amputated after developing pressure sores. A Florida jury awarded $17 million in December of 2003 against a nursing home on behalf of an Alzheimer’s patient who developed pressure sores that turned gangrenous because of alleged nursing home negligence. A Georgia jury awarded $2.2 millionin December of 2003 against a regional nursing home chain for the wrongful death of an elderly man who suffered from pressure sores, dehydration, malnutrition and frequent falls. The nursing home owner’s awareness of potential health problems and deliberate failure to correct them was proven by understaffing, state health code violations and repeated failure to correct substandard conditions.

Tenant Crime Victims Sue Landlords

Landlord sued for murder of tenant. Despite repeated requests, the landlord never replaced a broken window pane in the front door. The tenant’s brother ultimately covered up the hole with plywood. The tenant’s estranged boyfriend removed the plywood, opened the door, entered the apartment and stabbed the tenant to death. The boyfriend later testified that he would have not have risked hurting himself by trying to break the glass pane. The tenant’s family sued the landlord for negligence. The landlord argued that it did not have a duty to prevent the boyfriend from entering the apartment because the attack on the victim was not foreseeable. The court noted that replacing the window pane would have cost the landlord about $15. The California Court of Appeals, 14th District ruled that if the facts known to the owners were sufficient to notify them of the slight likelihood that an intruder might seek to enter the apartment, they had a duty to take the minimally burdensome steps available to restore the integrity and security provided by a repaired front door. Sexual assault by apartment maintenance worker. A maintenance worker sexually assaulted a 17-year-old girl in her apartment, gaining entry to the apartment by telling her that he was there to repair the ceiling. She continues to suffer psychological problems. Her mother, individually and on her daughter’s behalf, sued the landlord and the management company alleging negligent hiring and retention of the maintenance worker, who had been arrested on criminal charges thirteen times before he was hired. The tenants alleged that the defendants knew or should have known of it’s employee’s criminal record and that the defendants violated their own hiring practices by not checking the worker’s background or by hiring him despite it (Fulton County State Court, Georgia). Landlord liable for failure to protect tenant from neighbor’s assault. A tenant was repeatedly assaulted by another tenant in the apartment building. She complained to the building managers, who did nothing. One night while she was returning to her apartment, the other tenant attacked her again, throwing her down the stairs resulting in physical injuries. She filed suit against the landlord alleging negligence in failing to protect her from the attacks. The California Court of Appeals ruled that because the tenant’s attacks were repeated and the tenant reported them, the landlord knew or should have known of the danger that the tenant would cause harm. Thus, the landlords owed the tenant a duty of care that they had breached by failing to take any action, such as installing a security camera, hiring a security guard or evicting the violent tenant. Widow sues for negligent security practices. An intruder entered the tenant’s apartment during the night through a sliding glass door and shot the tenant who suffered fatal injuries. The tenant’s wife sued the landlord and manager for her husband’s wrongful death, alleging that they allowed a dangerous condition to exist under its control and failed to prevent a foreseeable criminal act. Defendants contended that they had no duty to protect tenants from violent crime because the incident was in their apartment, not a common area of the premises, and that their security measures were adequate. The court ruled that a landlord does not necessarily escape liability simply because the criminal attack took place inside leased premises instead of a common area. If a defect within the common area adversely affects tenants of the premises, the landlord may still be liable, the court held. Furthermore, the court found, the landlord’s duty to provide reasonable security measures does not end when such measures are put in place. Rather, the landlord has a continuing duty to inspect and maintain the security devices to make sure they will continue to deter criminal activity (Maryland Court of Appeals).

Disclaimer

The LegalSurvival.com Newsletter is published quarterly as a public service by Friedman & Ranzenhofer, PC, PC, P.C., Attorneys, with offices in Akron, Buffalo, Batavia, West Seneca and Williamsville/Clarence, New York. The firm, founded in 1955, practices estate planning, real estate, personal injury, probate, criminal, traffic, marital, family, bankruptcy, business, municipal, corporate, debt collection, landlord/tenant and elder law. Your coments and questions are always welcome. For further information or to obtain permission to reprint the contents of this newsletter, call Robert Friedman at (716) 333-5144. 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. 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.