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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.

Enhanced Cancer Disability Benefit Regulations Finalized

fire service lawsOn October 17, 2018, the Division of Homeland Security and Emergency Services published a notice of adoption with respect to the New York State Volunteer Firefighter Enhanced Cancer Disability Benefits Program regulations.  The regulations were adopted as proposed.  A link to the Division’s website (here) contains links to both the regulations and the New York State Register.

The Register (starting at page 16) includes an assessment of public comment with respect to the proposed rules (including a response to each written comment).  Unfortunately, none of the comments resulted in any changes, and the regulations were adopted as originally proposed.

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.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.

Anti-Harassment Policy and Training Available Now

I recently wrote about the sweeping workplace rules designed to prevent sexual harassment here.  As of this month, employers are required to adopt a sexual harassment prevention policy and provide annual sexual harassment prevention training.  Both the policy and the training are required to meet or exceed minimum standards set by a model policy and model training program provided by the Department of Labor and Division of Human Rights.  At the time I wrote about these requirements, only drafts of the model policy and training were available.

The final model policy and training module are now available here.

If you would like to schedule a consultation to talk about how this legislation may impact your business,  please feel free to contact me at pweishaar@mccmlaw.com or 585.512.3542.

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.

Fire District Resources for September MCFDOA Meeting

MCFDOA

I will be making some brief remarks at the next meeting of the Monroe County Fire District Officers Association on September 20, 2018, and I wanted to make a resource page available with links to additional information on the following topics:

Guidance for Public-Sector Employers and Employees in New York.  Earlier this year, the Supreme Court issued a decision in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018).  In Janus, the Court held that unions did not have a right to receive fair share agency fees from public-sector employees who decline union membership.  The New York State Department of Labor recently issued two short publications providing guidance to New York Public-Sector Employers and Employees:  Guidance for Public-Sector Employers and Employees in New York State; and Guidance for Public-Sector Employers and Employees in New York State–Frequently Asked Questions.

Sexual Harassment Prevention.  The 2018-2019 New York State Budget contained several provisions affecting sexual harassment prevention policies, training and settlements.  The Legislation also required the creation of a state-mandated model policy and model training.  You can read more about these requirements in an article I wrote on our firm’s website here.  The model policies were recently published in draft form, along with a model complaint form, and all of these draft documents are available here.

Volunteer Firefighter Enhanced Cancer Disability Benefits Program.  Over the summer, the State published proposed regulations implementing this new program.  The proposed regulations are available here.

UPDATE:  Budget Question.  Last night, there was a question about amendments to the budget after the budget hearing.  Town Law section 181(b) provides in part that “After the public hearing, the board of fire commissioners may adopt changes, alterations and revisions to the proposed budget subject to the requirements of paragraph (a) of subdivision two of this section, except that the board of fire commissioners shall not add or increase an appropriation to a capital reserve fund.” (emphasis added).

Thank you for visiting my blog.  If you want to find out more about me and my practice, I invite you to visit my page on our firm’s website.

Here are some other posts you may enjoy:

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.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.

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!

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