Rochester Law Review

Required Disclaimers

Pursuant to Rules 7.1(e)(3) and (f) of the NY Rules of Professional Conduct, you are hereby advised that "prior results do not guarantee a similar outcome" and the contents of this blog constitute "Attorney Advertising."

Legal Advice

This publication is intended as an information source for clients, prospective clients, and colleagues. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

© Peter J. Weishaar and Rochester Law Review, 2013 – 2018.

All Rights Reserved

Revised Regulations Implementing State Environmental Quality Review Act Adopted

The New York State Department of Environmental Conservation recently announced that it has formally adopted revisions to the regulations implementing the State Environmental Quality Review Act (SEQRA).  The new regulations will become effective on January 1, 2019.

I expect to write another post summarizing the major changes shortly.  In the meantime, you can find out more information about the amendments on the DEC’s website.

 

Are you responsible for injuries caused by a distracted driver who crosses the center line and collides head-on with another vehicle while texting with you?

Courts have held that a passenger in a car may be liable if he or she distracted the driver while operating the vehicle immediately before an accident.  Does such liability extend to a person sending text messages to a person whom he or she knows is operating a motor vehicle immediately before an accident?  Earlier this month, the Appellate Division answered this question in a case of first impression in the State of New York [Vega v. Crane, ___ A.D.3d. ___, 2018 NY Slip Op 03262 (4th Dep’t 2018)].

On a dark, rainy night in December 2012, Carmen Vega and Collin Crane were driving their vehicles toward each other on Route 33 in Genesee County.  Mr. Crane was driving home from work and was exchanging text messages with his girlfriend, Taylor Cratsley.  As the vehicles approached each other, Mr. Crane’s vehicle crossed the center line and the two vehicles collided, killing Mr. Crane and seriously injuring Ms. Vega.

The New York State Police determined that the primary cause of the accident was Mr. Crane’s failure to keep to the right of the center line.  According to the accident reconstruction report, there was no evidence that Mr. Crane tried to take evasive action, suggesting that he was likely distracted.  The investigator concluded that the cellular phone activity “may have been the source of this distraction.”

Ms. Vega commenced a lawsuit arising out of the accident, and included a claim against Ms. Cratsley, “alleging that the collision was caused in part by her negligence in continuing to engage [Mr. Crane] in a text message conversation despite knowing, or having special reason to know, that he was operating a motor vehicle.”

The trial court granted Ms. Cratsley’s motion for summary judgment, dismissing the complaint against her, and Ms. Vega appealed.  The Appellate Division affirmed, holding that:

[A] person does not owe a common-law duty to motorists to refrain from sending a text message to a person whom he or she knows, or reasonably should know, is operating a motor vehicle.

In rendering its decision, the Court noted “a significant distinction between the distracting passenger and the remote sender of text messages.”   The Court reasoned that a driver cannot prevent the passenger–who is actually inside the vehicle–from creating a distraction.  However, the same driver “has complete control over whether to allow the conduct of the remote sender to create a distraction.”

It is the driver who has the duty to see what should be seen and to exercise reasonable care in the operation of his or her vehicle to avoid a collision with another vehicle.

If a person were to be held liable for communicating a text message to another person whom he or she knows or reasonably should know is operating a vehicle, such a holding could logically be expanded to encompass all manner of heretofore innocuous activities.  A billboard, a sign outside a church, or a child’s lemonade stand could all become a potential source of liability in a negligence action.  Each of the foregoing examples is a communication directed specifically at a passing motorist and intended to divert their attention from the highway.

Finally, in reviewing the various laws passed to regulate cellular telephones and other electronic devices by those operating motor vehicles, the Appellate Division noted that in passing these laws, the legislature did not create a duty to refrain from communicating with persons known to be operating a motor vehicle.  Instead, “those laws place the responsibility of managing or avoiding the distractions caused by electronic devices squarely with the driver.”

Did you know?  Since our firm began in 1979, we have represented clients seriously injured by the negligence or intentional misconduct of others, whether involving motor vehicle accidents or other wrongful conduct.  This has also been part of my litigation practice since I joined the firm over 20 years ago.  If you or a someone you know is ever seriously injured by another person’s carelessness, you can always contact us to talk about your rights and available options.  Information about our Personal Injury Practice may be found here.  Hopefully, you’ll never need us for that.

SUM Good News About Auto Insurance

Crash

How’s your SUM coverage?

For for many years, I told clients, friends, and family–really anyone who would listen–to be sure to check their automobile insurance policies and make sure that coverage for supplementary uninsured/underinsured motorist coverage–sometimes referred to as “SUM” coverage–was equal to the amount of liability (bodily injury) coverage.  I have always thought that SUM coverage is one of the most important types of coverage included in your policy because that is the coverage that will compensate you (and members of your family) for injuries you sustained by a negligent driver with insufficient insurance.

In New York, drivers are only required to have $25,000 in bodily injury coverage. Bodily injury coverage is the liability insurance that pays when a driver negligently causes injuries to another party.  Sadly, many drivers only purchase the minimum.  This is probably one of the ways that 15 minutes can save you 15% or more on car insurance.

If you are seriously injured by the negligence or carelessness of one of these underinsured drivers, your own SUM coverage could be available to compensate you for any injuries sustained that are above and beyond the insurance carried by the negligent driver.  But, that requires you to have adequate SUM coverage too.

Unfortunately, there have been a number of occasions when we have had clients suffer devastating injuries after being struck by a negligent driver carrying only the minimum amount of bodily injury coverage, and we have had to explain to the client that there is little left for them to recover because our client carried a minimal amount of SUM coverage, even though the client in this case often had adequate bodily injury coverage insuring against their own negligence (which wouldn’t apply in this situation).

A good summary of how SUM works may be found by reading Auto Insurance Protection: the SUM of all fears.  Over the years, we’ve written several posts about the importance of having adequate SUM coverage, and now we have some good news to report.

On December 18, 2017, the Governor signed a bill amending provisions of the Insurance Law to provide for increased SUM coverage.  Starting with new policies issued after June 16, 2018, the amount of SUM coverage to be included in any auto insurance policy will be the same as the amount of bodily injury coverage selected by the insured.  Although an insured may decline SUM coverage or purchase a lower limit, I do not recommend doing so.  According to the sponsor’s memorandum:

Supplementary insurance, also known as uninsured or underinsured motorist insurance, protects motorists who suffer severe and devastating injuries in accidents with drivers who carry inadequate or no insurance.  Few drivers are aware of the value of supplementary insurance and insurance companies rarely offer supplementary insurance coverage above the statutory minimum.  This bill will ensure that drivers are fully protected themselves by supplementary insurance equal to the bodily injury liability insurance coverage they select to protect others, unless they affirmatively elect lower coverage for themselves.

If you or a family member are ever seriously injured in an accident caused by another person’s carelessness, you can always contact us to talk about your rights and available options.  Information about our Personal Injury Practice may be found here.  Hopefully, you’ll never need us for that.

Happy New Year!

Fire District Alert: Requirements for Sale or Disposition of Surplus Apparatus Amended

fire service laws

I am often asked about the requirements for disposing of surplus apparatus or other property.  Generally, unless apparatus was being traded in as part payment for new apparatus, fire district commissioners had to pass a resolution subject a mandatory referendum before disposing of surplus property.  However, there are two exceptions to the mandatory referendum requirement:  (1) If the property was valued at less than $50,000, then the board of fire commissioners only needed to pass a resolution subject to a permissive referendum; and (2) If the property was valued at less than $10,000, then the commissioners need only a resolution to dispose of the surplus property.

Effective immediately, those thresholds have been boosted to $100,000 and $20,000, respectively.  For more information about this recent amendment, please see my article on our law firm’s website: New Law Removes Red Tape for Fire Districts Selling Surplus Apparatus.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Can a Fire District Pre-Pay for a New Fire Truck?

This is a question that has come up quite a bit recently, and I’ve decided to explain the reasoning behind my answer here.  Fire apparatus can be very expensive, ranging from several hundred thousand dollars to as much as a million dollars or more for the most sophisticated aerial ladder trucks.  With the tax cap as low as it is, it is easy to see why it may be tempting to take advantage of the savings offered by a vendor who offers a pre-payment option.  Sometimes the savings can be as much as 10% of the cost of the apparatus.  Should you take advantage of this?

It is well settled that “[f]ire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies . . . and have only those powers expressly granted by statute and necessarily implied therefrom.” 1992 Opn. St. Comp. No. 92-41.  Is there a statute that expressly permits a fire district to make pre-payments?

Section 176(4-a) of the Town Law outlines the procedure for fire district commissioners to audit and authorize payment of claims.  Although originally not permitted, payments in advance are now permitted in limited circumstances:

The board of fire commissioners may, further, by resolution authorize the payment in advance of audit of claims for light, telephone, postage, freight and express charges. All such claims shall be presented at the next regular meeting for audit, and the claimant and the officer incurring or approving the same shall be jointly and severally liable for any amount disallowed by the board of fire commissioners.

[N.Y. Town Law section 176(4-a)].

In 1996, fire district commissioners became authorized to make progress payments in connection with the purchase of motor vehicles used for fire-fighting purposes.  But even this authorization was limited.  Section 176(23-a) of the Town Law provides in pertinent part:

In any case of a purchase from a manufacturer of a motor vehicle used for fighting fires, whether or not including apparatus used in connection with such motor vehicle, having a period of probable usefulness of ten years as determined by section 11.00 of the local finance law, advertisement for sealed bids may be made and the purchase contract may be awarded for such motor vehicle and apparatus with the provision, if the board of fire commissioners shall so specify, that progress payments be made to the manufacturer as the motor vehicle or apparatus or both progresses, provided that evidence satisfactory to the board of fire commissioners as to the progress of such work be produced with each request by the manufacturer for a progress payment, and further provided that such progress payments shall not exceed four in number and that at least twenty-five per cent of the contract price of the motor vehicle or apparatus or both be withheld by the board of fire commissioners until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners, and further provided that every such contract providing for progress payments shall be accompanied by a surety bond of a property/casualty insurance company, as defined in section one hundred seven of the insurance law, for the completion of the work, specified in the contract, within the amount stipulated therein, which bond shall be filed with the board of fire commissioners.

[N.Y. Town Law section 176(23-a)].  In other words, a fire district may use progress payments to purchase apparatus, provided the following requirements are met:

  1. The specifications for the purchase must include an option to make progress payments;
  2. There shall be no more than four payments;
  3. Each request for payment must include evidence satisfactory to the board of fire commissioners as to the progress of the work;
  4. At least 25% must be withheld by the board of fire commissioners (i.e., the last payment) until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners; and
  5. The contract providing for progress payments shall be accompanied by a surety bond.

These requirements do not permit advance payments or any other type of pre-payment.  However, if the foregoing criteria are met, progress payments are permitted.  While the savings offered by vendors will not be as great as the pre-payment option, many vendors also offer progress payment options, and these options should be considered.  At the very least, the bid specifications should include a request that the vendors include options for progress payments (and the specifications should also explain how the lowest responsible bidder will be determined if such options are requested).

Although it would seem to be in the best interest of the taxpayers to obtain the discount offered by the pre-payment option, taking advantage of this option would run counter to the public policy of the State of New York.  This is similar to the rules that prohibit fire districts and other municipalities from investing their funds in something other than insured certificates of deposit or United States obligations.  In a recent fire district audit involving the failure of a fire district to invest funds properly, the Comptroller explained that “[t]he law emphasizes safety, security and liquidity over yield, because improper investments could result in a risk of market fluctuation and the loss of principal.”  [Orient Fire District Audit at 6 (March 2016)].

Thank you for visiting my blog. I hope you consider subscribing by email, liking my page on Facebook, or following me on Twitter. You may also want to subscribe to our firm’s email newsletter, In Confidence, here. You can subscribe to only the topics you are interested in, and from time to time, I write about developments impacting New York municipalities, including fire districts.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Open Meetings Law Will Require State Agencies To Live Stream Meetings

It is about time that the State of New York finally catches up to what the town of Penfield is already doing!  For many years, local towns like Penfield have have broadcast public meetings over their local public access cable television stations.  Several years ago, Penfield began broadcasting public meetings–both hearings and work sessions–in full high-definition on the Internet.  Once that happened, you no longer needed to have access to the town’s cable access channel.  You can now watch meetings of the town, zoning, and planning boards from anywhere in the world–as long as you have Internet access.

On December 11, 2015, the State of New York enacted an amendment to the Open Meetings Law (L.2015, ch.519), adding a new subdivision (f) to Section 103 of the Public Officers Law.  Starting next month, open meetings of agencies (which for the purposes of this new subdivision generally include only state agencies) shall be broadcast to the public and maintained as records of the agency.  The new subdivision also generally requires agencies to stream such meetings in real-time, and post video of the meetings on the agency’s website within and for a reasonable time after the meeting.  One caveat, though, is that agencies are only required to stream and post the meetings if they already maintain a regularly and routinely updated website, and if they already utilize a high-speed Internet connection.  Don’t all state agencies maintain updated websites, with high-speed connections?  They should.

Even though the Governor was criticized for his recent FOIL vetoes, this amendment gives good government groups at least one small victory this term.  As noted by the sponsor’s memorandum in support of the legislation:

This legislation would help increase transparency by allowing people to virtually participate in open meetings, without imposing additional burdens on public bodies.  Moreover, making the content of these meetings easily available to the public would reduce the likelihood of repeated questions to the agency, the impact of misinformation, and the number of individual FOIL requests.

In the past, I have viewed live-streaming and archived video of oral arguments at the Court of Appeals.  Living and working more than three hours away from Albany, it would not have been practical for me to do that for the cases I was able to observe without the Internet capabilities of the Court.  The availability of live-streaming and video archiving now enables those of us in Western New York to more easily observe our government in action.  I am looking forward to the opportunity to observe the agencies in the executive branch from the comfort of my office in Rochester.  The amendment takes effect on January 10, 2016.

LOSAP Penalty for NY Public Employees Removed

Many fire districts have established Length of Service Award Programs (“LOSAPs”) in an effort to recruit and retain volunteer firefighters.  The service awards provided under these LOSAPs relate to credits earned annually by performing various volunteer firefighting functions for a period of years, and are generally paid on a monthly basis upon the participating volunteer reaching a certain age.

Previously, public employees who serve as volunteer firefighters were unfairly penalized, in that they were not permitted to earn any credit for responding to calls during the individual’s regularly assigned work periods.  Effective immediately, this penalty no longer applies.

The Memorandum of Support accompanying Chapter 535 of the Laws of 2015 notes the absurdity of the prior restriction:

Section 217(f) of the [General Municipal Law] precludes a volunteer firefighter who provides firefighter services (generally, emergency services) during his or her “regularly assigned work periods” from receiving LOSAP credit for those services. So, in spite of the increasingly desperate need to attract folks willing to undergo hundreds of hours of required training and stay active for many, many years to earn any marginally-significant LOSAP benefits, public employees are “dis-incented” from providing volunteer firefighter services for circumstances over which they have no control and which may already cause them significant employment-related penalties.

Thankfully, on December 11, 2015, the Governor signed legislation to repeal this penalty, effective immediately.

Shareholders of Foreign Corporations Liable for Wages?

Shareholder Liability Extended to Foreign CorporationsLast year, I wrote a post about amendments to the Wage Theft Prevention Act that added a provision to the New York Limited Liability Company Law, imposing personal liability on the members of a limited liability company with the ten largest ownership interests for the failure of the company to pay the wages of its employees. These amendments were similar to provisions already contained in Section 630 of the New York Business Corporation Law, which imposes personal liability on the ten largest shareholders of a corporation (other than a publicly-traded corporation) for the unpaid wages of employees of the corporation.

On November 20, 2015, the Governor signed an amendment to Section 630 [Chapter 421 of the Laws of 2015], which extends the reach of this provision to foreign corporations, when the unpaid services were performed within New York.

Although the law has been criticized because “it might turn business away from New York,” I do not necessarily see it this way.  That’s because shareholder liability is not automatic.  Before an employee can charge a shareholder for such unpaid wages, the employee must first provide a notice in writing to the shareholder, within 180 days after termination, advising the shareholder that he or she intends to hold the shareholder liable under this section.  The employee cannot commence an action against the shareholder until after the return of an execution unsatisfied against the corporation upon a judgment recovered against it for such services.  Once an execution is returned unsatisfied, the employee must then commence his or her action within ninety days.

Therefore, as long as the company has sufficient assets to cover the amount of any unpaid wages, the shareholders aren’t likely to be concerned about this possible liability.  Also, depending on the amount owed, it may not be cost effective for the employee to hire an attorney to prosecute these two lawsuits–even with the prospect of attorney’s fees and liquidated damages that are both recoverable under Article 6 of the Labor Law.  But, a word of caution.  Even though lawsuits under Section 630 are rare, I can think of at least one time in my nearly 20 years of practice that I was able to recover against shareholders for failure to pay wages of a former employee.

The sponsor’s memorandum of support for this legislation includes some interesting historical background discussing the reasons why the Legislature originally imposed shareholder liability for unpaid wages, as well as a discussion of how it came to be that foreign corporations were not covered by these provisions.  But, what should be highlighted here is the primary reason for this amendment, which was to eliminate discrimination against New York corporations in favor of foreign (out of state) corporations insofar as liability for unpaid wages is concerned:

It should be noted that this Legislature recently recognized the problem revealed during the recent economic collapse in which unscrupulous businesses opened and closed without paying wages due their employees.  The Legislature increased the penalty for failure to pay wages to 100% of the wages owed.  However, the penalty is meaningless if the employee lacks an effective remedy for recovering his or her unpaid wages.  The amendment strengthens existing remedies.

The amendment will be effective on January 19, 2016.

 

Seat Belt Use Required For Volunteer Firefighters

Volunteer Fire Fighters Now Must Buckle-Up!

Volunteer Firefighters Now Must Buckle-Up!

When New York’s Seat Belt Law was originally enacted in 1984, the Legislature exempted “authorized emergency vehicles” from the definition of “motor vehicles” whose operators and passengers had to be restrained by safety belts, because it was believed that the operators of these vehicles needed to be able to perform their duties in an “unhampered fashion.” However, that is about to change for volunteer firefighters.

On November 20, 2015, the Governor signed an amendment to the Seat Belt Law (Chapter 448 of the Laws of 2015), which now includes vehicles owned or operated by volunteer fire departments within the definition of “motor vehicles” whose operators and passengers must be restrained.  The amendment also applies to ambulances owned or operated by voluntary ambulance services as well.  However, the safety restraint requirements still do not apply: (a) to a passenger in the rear seat of a fire vehicle or ambulance if the seat is not required to be equipped with safety belts, nor (b) to emergency medical personnel during the course of providing patient care in the rear compartment of an ambulance in accordance with applicable patient care standards, guidelines and protocols established pursuant to the Public Health Law.

In support of this legislation, the sponsor’s memorandum noted:

The single largest cause of Volunteer Firefighter and EMS responder death is vehicle accidents to and from an incident scene. The largest contributor to those deaths is failure to wear seat belts.  Volunteers would like the current exemption removed from the law making New York law consistent with the training and operational procedures currently in place to promote seat belt use.

Use of seat belts promotes safety and saves lives. Since buckling a seat belt takes just a few seconds, fire and ambulance vehicles should be required to use them. This bill is strongly supported by the Fireman’s Association of the State of New York.

This amendment will not take effect until November 1, 2016.

 


Fire District Materials: 2015 Batavia Conference

fire service lawsOn Saturday, September 26, 2015, I was honored to be invited to participate as one of the panelists at the 2015 Western New York Fire District Officers Legislative Association Workshop.  I understand that the event was a “sell-out” with fire district officials from over 11 counties in attendance.  There were many topics covered, and I wanted to follow-up with a short post including some additional information and links to relevant information from some of the topics that were covered.

Fundraising.  During one of the breaks, I was asked about firefighters participating in fundraising activities in support of other (non-fire) organizations.  A word of caution about this.  Although the statute governing fundraising, General Municipal Law section 204-a, generally provides that firefighters participating in fundraising activities are covered by the Volunteer Firefighters’ Benefit Law (“VFBL”), not all kinds of fundraising activities are included in this coverage.  Section 204-a defines “fund raising activity” as “a method of raising funds to effectuate the lawful purposes of a fire company.”  Thus, if the funds are not being raised for “the lawful purposes of a fire company” it is not likely that there would be coverage under the VFBL if a firefighter is injured while participating in such activity.

One of the fundraising activities briefly discussed involved raffles.  The New York State Gaming Commission website has a section dedicated to Charitable Gaming–including Raffles.  You can find it here.  It is critical that both the requirements of the General Municipal Law and the applicable gaming rules are followed.

Firefighters Under 18.  There are opinions from the Attorney General’s Office indicating that firefighters may be as young as 16 years old.  But, before deciding whether or not to permit firefighters that young, the fire district should consult with counsel about the unique rules applicable to such firefighters, and also to review the risks associated with having firefighters that young on active duty.  Fire districts are also authorized by section 204-b of the General Municipal Law to establish youth programs, provided the program complies with the requirements of the statute.  Participants in such a youth program are not active firefighters.  Unlike active firefighters, youth participants are not eligible for VFBL coverage, and they may not participate in any emergency operation or any hazardous activity.

Blue Lights.  The SafeNY website contains a good FAQ page [here] with a good summary of the requirements applicable to the different types of sirens and flashing lights–including the blue lights used by volunteer firefighters.  The website also contains links to the relevant statutes, including Section 375(41)(4), which governs the use and operation of the blue lights.

Bonding Credit Card Users.  Recent audits by the New York Comptroller have included a recommendation that fire districts and other municipalities bond individuals who are issued credit cards.  Here is a copy of a recent audit with this recommendation.

Document Retention Policies.  I have been asked by my fire district clients how long it should retain certain documents.  Fortunately, the New York State Archives published a document retention and disposition schedule applicable to fire districts and other political subdivisions in New York.  The schedule–known as MU-1–may be found here.

Thank you for visiting my blog. I hope you consider subscribing by email, liking my page on Facebook, or following me on Twitter. You may also want to subscribe to our firm’s email newsletter, In Confidence, here. You can subscribe to only the topics you are interested in, and from time to time, I write about developments impacting New York municipalities, including fire districts.

%d bloggers like this: