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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.

Municipal Update: Non-Public Bid Opening Permitted During COVID-19 Emergency


On March 7, the Governor issued Executive Order 202, declaring a State disaster emergency for the entire State of New York.  Over the course of the next several weeks, the Governor has issued updates to the original Executive Order.

On Friday, March 27, 2020, the Governor issued Executive Order 202.11.  Fire districts and other municipalities should be aware of one change with respect to public bidding that was included in that order:

Section 103(2) of the General Municipal Law, Section 144(1) of the State Finance law, Section 376(8)(a) of the Education Law, and Section 359(1) of the Public Authorities Law to the extent necessary to allow the non-public opening of bids; provided, however, that where practical, public entities shall record or live stream id openings so that the public has the opportunity to view such bid openings….

The statutory provisions referenced in the Executive Order are temporarily suspended or modified through April 26, 2020.   Information about this and other COVID-19 Executive Orders may be found here.

If you would like to schedule a consultation to discuss the the impact of this Executive Order or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

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.

Appellate Division Holds Arm Wrestling Outside Scope of Employment


Image by Ryan McGuire from Pixabay 

From time to time, a case in the Advance Sheets piques my curiosity.  Gehrke v. Mustang Sally’s Spirits and Grill, Inc., __ A.D.3d __, 2020 NY Slip Op. 00741, is one of them.

As the trial court noted in her decision denying summary judgment: “This is an arm wrestling in a strip club case.”  I did not know there were such cases, but apparently there are, and this is one of them.  I was curious about why someone would pursue such a case to begin with, let alone pursue an appeal, and I ended up looking up the appellate record online to find out more about this case.

The plaintiff was a regular at “Tiffany’s Cabaret,” and one afternoon after about three hours of drinking, he talked the bartender into arm wrestling.  After about ten seconds, there was a “pop” and his arm went limp.  The bill of particulars indicates that he had a displaced right humeral shaft fracture, requiring surgery and hardware to repair.  In other words, he broke his funny bone.  But, the injuries were not funny.  A displaced fracture requiring surgery is no laughing matter.

Plaintiff asserted a cause of action for negligence based on theories of respondeat superior and premises liability.  Respondeat superior is a legal doctrine whereby an employer is liable for the negligent acts of his or her employee if the acts occur within the scope of employment.  “Tiffany’s Cabaret” moved for summary judgment, seeking dismissal of the complaint on both theories of liability, claiming that its employee was acting outside the scope of employment at the time of the incident and also claiming that it did not owe plaintiff a duty of care under the theory of premises liability.

The trial court denied the Cabaret’s motion on both grounds, holding that it owed its customer a duty of care on the premises liability claim, and determining that factual issues exist on the respondeat superior claim.  The trial court also noted that, if a jury found the arm wrestling to be within the scope of the bartender’s employment, “a notice requirement is obviated because, per respondeat superior, Defendants created the alleged dangerous condition of arm wrestling.”

The Appellate Division reversed on the respondeat superior issue.  While noting that it is generally a question for the jury whether an employee is acting within the scope of employment, “an employer is not liable as a matter of law under the theory of respondeat superior ‘if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business.'”  Id. (quoting Mazzarella v. Syracuse Diocese, 100 A.D.3d 1384 (4th Dep’t 2012)).  The Appellate Division concluded that the defendant established that the employee’s act of arm wrestling plaintiff was not within the scope of his employment and that plaintiff failed to raise a triable issue of fact in response.

The Appellate Division also reversed on the premises liability issue, resulting in the dismissal of the complaint in its entirety.

There are perhaps several morals of this story, and I will let you draw your own conclusions about that.  But, one thing I would like to point out to my readers is that this case demonstrates that not all serious injuries are the result of actionable negligence.  It is unfortunate that the plaintiff broke his arm.  But, Tiffany’s Cabaret was not legally responsible for causing this injury.

Part of my practice has included representation of plaintiffs seriously injured by the negligence of others.  In fact, the very first case I was assigned when I started as a new associate with the firm 24 years ago was a premises liability case where a little boy was injured in a fall through a wide-open stairwell in an elementary school.  Before we decide to take any personal injury case, we consider not only the nature of the injuries, but also whether or not somebody else’s wrongful conduct caused the injuries.

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.  As noted above, this has also been part of my litigation practice since I joined the firm in 1996.  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.

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.



Are Physician Non-Compete Covenants Enforceable?

PHLAlthough non-compete agreements with physicians have been held by courts to be enforceable, there is no per se rule that all such agreements involving physicians are enforceable.  Courts “must still scrutinize whether the covenant, on the facts presented, is being legitimately employed to protect [the employer’s] legitimate interests, would not be harmful to the public, and would not be unduly burdensome to the defendant.”  Oak Orchard Community Health Center v. Blasco, 8 Misc. 3d 927, 931 (Sup. Ct. Monroe County 2005) (citing BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 391 (1999)).   In Oak Orchard, the Court declined to enforce the restrictive covenant in a pediatrician’s employment contract.  Last month, another Monroe County Supreme Court justice denied the request for an injunction seeking to enforce a non-compete covenant contained in an anesthesiologist’s agreement.

Generally speaking, restrictive covenants in employment agreements will be enforced only if they are:

  1. Reasonable in time and area;
  2. Necessary to protect the employer’s legitimate interests;
  3. Not harmful to the general public; and
  4. Not unreasonably burdensome to the employee.

Employees challenging restrictive covenants in their employment agreements often focus on the employer’s claimed legitimate interest.   In determining whether a restrictive covenant is necessary to protect the employer’s legitimate interests, the Court of Appeals has “limited the cognizable employer interests…to [1] the protection against misappropriation of the employer’s trade secrets or of confidential customer lists, or [2] protection from competition by a former employee whose services are unique or extraordinary.”  BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 389 (1999).

In Westside Anesthesia Associates of Rochester, LLP v. Anesthesia Associates of Rochester, P.C.  (Sup. Ct. Monroe County 2019 [Index No. E2019007444]), the Court denied plaintiff’s request for a preliminary injunction enforcing the restrictive covenant against two anesthesiologists and their new employer “because [plaintiff] has failed to set forth sufficient indicia that the non-competes are necessary to forestall unfair competition.”  Id. at 9.  “It is well-settled that an employer has no legitimate interest in stifling legitimate competition.”  Id.

The Court found that there was no evidence that the defendant doctors were in possession of trade secrets worthy of protection, or that they otherwise accessed or sought to use their former employer’s alleged confidential information for the benefit of their new employer.

The Court also determined that there was no showing that the defendant doctors were “unique or extraordinary.”  Plaintiff made no showing that either of the defendant doctors possessed skills that gave them an unfair advantage over their former employer, and the Court also noted that the practices of the defendant doctors were not portable:

 An anesthesiologist provides anesthesia to a patient and a surgeon performs a surgical procedure at the same facility; in this scenario, the anesthesiologist does not develop a relationship with the patient. [Id.]

The Court concluded that the plaintiff “wholly failed to demonstrate a legitimate business interest” and therefore “the application for a preliminary injunction must fail because a likelihood of success on the merits [was] not shown.”  Id. at 10.

Although every case must be analyzed under its own set of facts, this is an interesting development that may impact the hospitals and practice groups in Monroe County that include broad, sweeping restrictive covenants in their physician employment contracts.  Under another set of facts, the covenant in this case may have been enforced.  If you would like to schedule a consultation to talk about restrictive covenants in employment,  please feel free to contact me at or (585) 512-3542.

Links to other articles I have written about non-compete agreements and related restrictive covenants are included below:

My employment practice includes the representation of businesses and individuals in matters involving restrictive covenants, non-compete agreements, discrimination and failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission.

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.

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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