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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.

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.

Giddyup! Horseback Rider Survives Injury (and Ranch’s Summary Judgment Motion)

My wife finally convinces me to go on a trail ride.  Emerald Springs Ranch?

My wife finally convinces me to go on a trail ride.

Year after year, no matter where we went for vacation, we always seemed to drive by a ranch offering trail rides.  Finally, after many years of declining such requests, my wife finally convinced me to give it a try.  We were vacationing in the Adirondacks and I owed it to my wife to finally give horseback riding a try.  

Earlier in the week, I went overboard with the mountains we climbed–choosing in mid-hike to add another nearby mountain to our trek before returning to the car.  Suffice it to say, this made it easier for my wife to convince me to finally go on my first trail ride.

While the trail ride proved to be a fun experience (and I’ve been riding a few times since then), I was pretty nervous about being that high up on unfamiliar trails.  I also remember the guide giving us a short pre-ride lesson, and while he was sitting on his horse, it stepped back and tripped on the small step ladder he used to get on the horse.  This only served to heighten my anxiety, as I already had Christopher Reeve on my mind, and now I watched our guide nearly fall off his horse.  But we made it without any other mishaps.

By now, you’re probably thinking, “What does this story have to do with the injured horseback rider you mentioned earlier?”  I am pretty sure that the ranch where I first rode was the Emerald Springs Ranch in Saranac Lake (how many other ranches could there be in Saranac Lake?).  So when I saw a case about an injured horseback rider suing the Emerald Springs Ranch I knew I had to write about it.

In Vanderbrook v. Emerald Springs Ranch, 109 A.D.3d 1113, 971 N.Y.S.2d 754 (4th Dep’t 2013), the horseback rider sued the Ranch, seeking damages for personal injuries she sustained while riding a horse on a guided trail ride at the Ranch.  During the ride, the horse brushed up against a tree, plaintiff was unable to push away from the tree, and the tree caught plaintiff’s leg, allegedly injuring her leg and hip.

The Ranch moved for summary judgment, asking the trial court to dismiss the complaint as a matter of law because, according to the defendant, the plaintiff could not establish either (1) the horse’s “vicious propensity” or (2) that the Ranch was aware of such “vicious propensity.”  How could a horse have a vicious propensity?  Should be pretty easy, right?

Not exactly.  As the court noted, “It is well settled that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities.”  [Vanderbrook, 109 A.D.3d at __, 971 N.Y.S.2d at 755 (internal quotations omitted)].  “[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities–albeit only when such proclivity results in the injury giving rise to the lawsuit.” [Id. (internal quotations omitted)].

In an effort to convince the court that the complaint should be dismissed, the Ranch submitted proof establishing that the rider herself testified that she was in fact instructed by Ranch personnel to push off the trees if the horse walked too closely to the trees on the single-track trail.  The Ranch bolstered this proof with the transcript of the Ranch owner’s deposition, in which she also stated that she told her guides to instruct riders to push off the trees of the horses rode too closely to them.  The Ranch obviously thought this proof would support its arguments.  But the court instead found that this proof instead illustrated a question of fact to be determined at trial as to whether the Ranch knew of the horse’s propensity to walk too closely to the trees, which was the behavior that allegedly caused the rider’s injury.

The court also ruled that the Ranch failed to establish as a matter of law that the rider assumed the risk of horseback riding.  “Assumption of the risk” is a defense often successfully asserted in recreational injury cases.  However, as the court noted here, “Horseback riding participants will not be deemed to have assumed unreasonably increased risks.” [Id. (internal quotations omitted)].  According to the court, the Ranch’s evidence again raised questions of fact as to whether the Ranch unreasonably increased the risks of horseback riding by using a bitless bridle on their horses, which allegedly failed to provide plaintiff with the ability to control the horse, and by failing to give the plaintiff, who was a novice rider, adequate instruction on how to control the horse.  When looking at the pictures of my first ride, I noticed that the bridle on my horse also appeared to be bitless.

Finally, the Ranch also sought dismissal of the complaint based on the waiver of liability that the rider signed before the ride.  The court ruled that the Ranch failed to establish any entitlement to dismissal on this ground as well, finding that the release here was void as against public policy based upon General Obligations Law section 5-326.  Although it is a common practice to ask participants to sign waivers like this before engaging in certain recreational activities, many (but not all) of these releases have been rendered void by this provision of the General Obligations Law.  The issues presented by such releases are beyond the scope of this post, and I plan to write about that in a future post.

So what happens next?  In all likelihood, the case will be scheduled for a trial.  Although the injured rider survived the Ranch’s motion for summary judgment, this only means that she was able to convince the judge that factual issues exist, warranting a trial.  Absent a settlement of the claim, she now must convince a jury that she is entitled to recover.

Giddyup!  My First Time on a Horse!

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