Winter 2000

Vol.4 – No.3

USA Today Recommends Legalsurvival.com

Friedman & Ranzenhofer, P.C.’s Legalsurvival.com web site, which has been recommended by Fortune Magazine, Starting Point, The American Bar Association, Yahoo, The New York State Bar Association, and the Bar Association of Erie County has also been recommended by USA Today: “For a wide range of free legal information — from how to find a lawyer to how to start a business — with a minimum of legalese. The Legalsurvival.com site also offers to e-mail its newsletter to you”. Legalsurvival.com had 67,711 hits during the month of January, 2000. The web site has checklists, a library of frequently asked questions and forms, a wide range of current business and personal legal topics, seminar information, a bookstore, and information about the services offered by Friedman & Ranzenhofer, P.C.

Landlord Seminars

“How to Survive Legally as a Landlord” will be presented by attorney/author Robert Friedman from 6:00 to 9:30 p.m. on the following two dates: (1) Tuesday, March 7, 2000 at Mill Middle School (505 Mill Street, Williamsville, telephone: (716)626-8080) and (2) Thursday, April 6, 2000 at Erie Community College, South Campus (4041 Southwestern Boulevard, Orchard Park, telephone: (716)851-1800). 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. There is a registration and book fee. To register, call the telephone number at the location where you wish to attend.

Start and Grow Your Own Business

“Your Silent Partner (Taxes & Your Legal Business Structure)” will be held at the New Golden Nugget, 2046 Fillmore Avenue, Buffalo. Robert Friedman, along with the IRS Business Assistance Center, SCORE, and the New York State Department of Taxation and Finance, will present an overview of different business structures, including: corporations, limited liability companies, partnerships, and sole proprietorships on Thursday, April 25, 2000 from 6:00 to 8:00 p.m. To register, call the U.S. Business Administration at 551-4301.

Hot Sites

Crashtest.com draws together crash-test data from several sources including the National Highway Traffic Safety Administration, The Insurance Institute for Highway Safety and The Highway Loss Data Institute. The site compiles assessments of new and used cars allowing users to compare cars of different makes and years. Included are figures for side-impact and full front-end collisions, frontal offsets and head restraints, amounts paid by insurance companies for personal injury claims and collision damage and death rates for different makes and models. It links to a variety of related resources, including insurance companies, technology sites and parts and services providers. This site is a service of CarLynx Automotive Links which claims to be “The Internet’s largest directory of automotive Web sites”.

What’s New in Consumer Law?

Shirt manufacturer liable for failure to warn of flammability. A Vermont jury awarded $1.5 million in compensatory damages to a 10-year-old girl who was severely burned when her cotton turtleneck burst into flames. While standing with her back less than three feet from an airtight wood stove, she suddenly felt her clothes catch on fire. She ran out into the snow and rolled until she thought the fire was out. When she stood up, her shirt again burst into flames. She sustained third degree burns over her back, buttocks, arms and right thigh and has permanent scars. Introduced at trial was evidence that the cotton industry successfully lobbied to block requirements to put specific warnings on cotton clothing.

What’s New in Debtor/Creditor Law?

FDCPA does not apply to rentals. Contrary to recent federal rulings, the Fair Debt Collection Practices Act (FDCPA) does not apply to three-day notices for non-payment of rent. The FDCPA requires debt collectors to advise debtors in writing that they have thirty days to contest the validity of an alleged debt. Previously, the U.S. Court of Appeals for the Second Circuit had ruled that back rent is a debt under the FDCPA and if the three-day notice is signed by the landlord’s attorney, the attorney was considered to be a “debt collector”. “Had Congress intended to alter statutory and contractual rights concerning property rentals by transforming every three-day, five-day or 10-day notice for a default in rent payment into a 30-day notice when the notice is given by an agent rather than the creditor, such an intention should have appeared in the statutory language and the legislative history, which are silent on this point,” ruled the Appellate Term of the 2nd Dept., New York Supreme Court. Furthermore, the Appellate term of the 1st Dept. held on February 2, 2000 that “Assuming in the tenant’s favor that the attorney-signed three-day notice served under RPAPL §711(2) falls within the purview of FDCPA, the [federal] Act does not provide for or compel dismissal of state court special proceedings commenced by landlords because of alleged unauthorized ‘debt collection’ practices by their agents or attorneys.”

What’s New in Divorce/Family Law?

Divorce agreement omits survivor benefits. An ex-wife could not collect any survivor’s benefits where her divorce agreement stated that she would get part of her husband’s pension when he retired — but was silent as to what would happen if he died first. This provision should have been in the Qualified Domestic Relations Order or in the terms of the divorce settlement naming the plan and providing that the ex-wife would be treated as the surviving spouse (U.S. Court of Appeals, Third Circuit).

What’s New in Estate Planning/Elder Law?

Estate and gift taxes eliminated for most people. New York no longer has the highest estate and gift taxes in the nation. The previous estate and gift tax with a maximum rate of 21 percent forced many affluent New Yorkers to retire to states with lower estate and gift taxes and to sever all ties with New York. New York’s estate tax rate is now identical to at least 35 other states, including the retirement states of Florida, Arizona and California. The threshold for filing a New York estate tax return increased to $675,000 on February 1, 2000. The gift tax was eliminated as of January 1, 2000. The federal and state estate and gift tax is imposed upon transfers during life or at death in excess of $675,000, which is the amount sheltered by the unified credit. The federal and state credits will increase to $1 million in incremental steps by 2006. Also eliminated is the requirement of obtaining estate tax waivers before transferring assets held by banks, brokers, insurance companies and other institutions.

What’s New in Health Law?

Health Care Plan must pay $51.5 million for denying cancer treatment. A woman was diagnosed with breast cancer in August, 1995. It eventually spread to her brain, where her neuro-oncologist discovered four malignant tumors. To fight those tumors, her doctor recommended intra-arterial chemotherapy, which places tumor-shrinking chemicals directly into the brain. The health care plan (HCP) pre-certified her for three intra-arterial treatments, which she underwent in April, May and June of 1997. An MRI showed that she was responding well. When she arrived at the hospital for her fourth treatment a month later, her oncologist told her that the HCP had not pre-certified the treatment. Nevertheless, she went ahead with the treatment. Her oncologist filed an appeal requesting that they re-review her records and approve eight more intra-arterial treatments. The HCP told the oncologist that it had mistakenly approved the first three treatments but that it would cover chemotherapy administered by an I. V. However, this treatment did not reduce the size of her tumors. She died that November at the age of 49. Her husband sued HCP alleging that it had acted in bad faith by denying his wife the treatment that her doctor had originally recommended. The denied treatments would have cost the family approximately $80,000. She did not want her family to go into debt over her health care expenses. The $51.5 million verdict consisted of $49 million in punitive damages, $2.5 million for bad faith and $1,350 for breach of contract (Licking County, Common Pleas Court, Newark, Ohio).

What’s New in Landlord/Tenant Law?

Landlord must pay $5 million for lead poisoning. A New York City landlord has been ordered to pay more than $5.3 million to a learning impaired teenager who had not lived in his building for nearly a decade. The Plaintiff, who was 13 at the time of the trial, has a diminished IQ of 74 and the mental capacity of a 9-year-old. She spent her first 4½ years in a run-down apartment with peeling lead paint on the walls. She claimed that she contracted lead poisoning during these vital developmental years by eating flaked paint and absorbing lead-paint particles. The Department of Health records showed high lead levels throughout the apartment at the time the girl’s lead poisoning was first detected in routine kindergarten blood tests. The award consisted of $300,000 for past pain and suffering, $2 million for future impairment of earning ability, $1.5 million for future pain and suffering, $1 million for future medical monitoring, $55,000 for future tutoring and $500,000 for future psychological counseling (Kings Supreme Court, New York).

What’s New in Municipal Law?

County is liable for courthouse murder. A county can be sued for failing to install metal detectors or other security devices where an ex-husband shot and killed his wife in the county courthouse hallway while waiting for a child support hearing. The ex-wife repeatedly told officials that she was afraid that her ex-husband might hurt her. She had also obtained a restraining order prohibiting him from carrying firearms. The California Court of Appeals, Second District, ruled that the county, as the party controlling the courts, has an obligation to take reasonable steps to discover criminal acts that are or are likely to be committed in its courthouses and to warn about or protect against foreseeable harm because “many have no choice but to utilize the courts”.

What’s New in Personal Injury Law?

Filing time for no-fault claims reduced. Beginning February 1, 2000, changes in New York’s no-fault insurance regulations will give victims of automobile accidents only 30 days from an accident date to file a no-fault claim and 45 days from the date of medical services to file proof of those expenses. This is a sharp drop from the previous 90 and 180 days. This shortened accident notification period severely prejudices injured people who, for a variety of legitimate reasons, may be unaware or unable to comply with the 30-day requirement. The 45-day medical claim time frame penalizes consumers for the failure of health care providers to submit bills in a timely manner. Eliminating the current second application mailing to those who fail to return their original applications within 30-days, will unfairly punish most injured people who will be filing for the first time.

What’s New in Real Estate Law?

City sued under ADA for prohibiting drug rehab clinic. A city, which prohibited drug rehabilitation clinics within 500 feet of a residential area in response to a clinic’s attempt to move into the area, can be sued under the American’s With Disabilities Act (ADA). A methadone treatment center sought to relocate to a building that was close to its patients and accessible to public transportation. The proposed site which had previously been used as a medical clinic, was located on a street with other medical and commercial offices. However, it abutted a residential neighborhood. In response to neighbors’ complaints that the clinic would lead to an increase in drug use and crime in the neighborhood, the city passed an “urgency ordinance” prohibiting methadone clinics within 500 feet of residential property. The clinic sued under the ADA, which prohibits a person with a disability from being excluded from the “services, programs or activities of a public entity”. The city argued that a zoning decision did not qualify as a “service, program or activity”. However, the U.S. Court of Appeals, Ninth Circuit, found that the ADA applied to zoning because it is “a normal function of a governmental entity”. The court also ruled that the clinic could get a preliminary injunction without showing that the city had failed to provide a “reasonable accommodation” by modifying the statute. The Second and Eleventh Circuit Courts have held similarly.

What’s New in Small Business Law?

Employer must pay punitive damages for not providing discrimination training to its managers. A hearing-impaired employee was fired after refusing to attend a training session without an interpreter. The jury awarded him $3,500 in compensatory damages and $75,000 in punitive damages. The employer argued that it was not liable for punitives because it had made a “good faith” effort to comply with the Americans With Disabilities Act (ADA) by instituting a written policy. However, the court ruled that the written policy alone was not enough. The supervisor who fired the employee testified that she had not learned that the ADA required an employer to make reasonable accommodations until three years later. Employers should be sure that all employees, especially those in supervisory positions, are given a copy of the company’s anti-discrimination policy. This should be followed-up with periodic hands-on training in implementing the discrimination policies. Managers should document their decisions and actions (U.S. Court of Appeals, Tenth Circuit).

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.