The New York State Court of Appeals addressed what is a “trivial” defect in Hutchinson v. Sheridan Hill House Corp., 215 N.Y. Slip Op. 07578 (Oct. 20, 2015). The Hutchinson court dealt with three separate appeals in which the Appellate Division found the defects to be “trivial” in each. While under New York law, a court can rule a defect trivial as a matter of law, the Court of Appeals defined the critical question of when a defect is in fact “trivial”. Standing alone, the actual dimension and size of the defect cannot ultimately determine the question. Courts are now directed to look at the circumstances surrounding the condition and not simply the condition itself. The Court noted that summary judgment should never be granted based solely on the dimension of the alleged defect. Various factors come into play. A certain defect may be trivial if it is in area where it can be readily seen, or in an area where pedestrians are not distracted by other characteristics in the same vicinity. Accordingly, even a physically small defect can be actionable and as a matter of law not “trivial” if it is in area with conditions that make it hard to appreciate including poor lighting, or in a heavily traveled area.

As with all of our litigation defense matters, we pride ourselves on conducting thorough comprehensive discovery. We continue to address all of the factors that the court will need to make decisions favorable to our clients.

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Defense Motion for Summary Judgment Granted for Town of Java

On February 3, 2014, the plaintiff collided with a Town of Java snowplow truck when the truck was turning left in front of the plaintiff to do its snowplowing/salting activities. The plaintiff claimed reckless and improper signage of the intersection. Defendant’s motion for summary judgment was granted pursuant to Vehicle and Traffic Law § 1103(b) that there was no question of fact that the Town driver in fact did not act with reckless disregard for the safety of others and that the existing road signs where the result of a rationale governmental planning decision for which the municipality was immune from liability. The complaint was dismissed.

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Personal Injury Claim Against Town of Amherst Snowplow

On November 20, 2015, the Fourth Judicial Department in Rochester unanimously affirmed the order of the Hon. Timothy J. Drury, J.S.C. in granting the motion for summary judgment on behalf of the Town of Amherst in dismissing the claim. The plaintiff was seeking damages for injuries sustained when he was struck by the wing blade of a snowplow while clearing snow from his driveway. The Fourth Department agreed with the arguments of Bouvier attorneys that the facts and circumstances surrounding the claim removed any question of fact relative to the absence of any “reckless disregard for the safety of others” behavior by Town snowplow personnel, the standard required by Vehicle and Traffic Law § 1103(b).

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US News and World Report and Best Lawyers

has included the Bouvier Partnership, LLP in the 2016 “Best Law Firms” list recognized for professional excellence with persistently impressive ratings from client and peers. Achieving a tiered ranking signals a unique quality law practice and breadth of legal expertise. The Bouvier Partnership has received a tier one designation for the fifth consecutive year reflecting the high level of respect the firm has earned among other leading lawyers and clients in the Western New York community where the firm has been located for 45 years.

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Obtaining Social Media Content (George W. Collins, Jr.)

Defense counsel have been continually frustrated by the courts in their efforts to obtain disclosure of relevant content on social media. In New York State, courts have been reluctant to compel production of social media content absent a factual predicate for the relevancy of the evidence. See McCann v. Harleysville Ins. Co. of New York, 910 N.Y.S.2d 614 (2010). While defense counsel can freely access publicly available content, which can be very useful, courts in our jurisdiction require a showing a relevancy before allowing access to social media pages with higher privacy settings.

My colleagues and I have found it very useful in establishing the threshold showing of relevancy by asking the plaintiffs in depositions how he or she has used Facebook and whether he or she has commented on or posted photographs of their injuries or documented daily activities prior and subsequent to the accident in question. We also question about whether a plaintiff has utilized social media to discuss the event in question, injuries, medical treatment or other items relevant to pending litigation.

Plaintiffs typically resist energetically to prevent access to social media claiming either relevancy or “overly broad and unduly burdensome.” Again, my colleagues and I have found that the latter objection may be overcome by limiting production to content posted during a specific date range. An objection to privacy or privilege typically fail as courts have found that there is no “social media privilege.” Privacy objections are arguably disingenuous as the purpose of social media is to share information with others. In Melissa G. v. North Babylon Union Free School District, 6 N.Y.S.3d 445 (2015), restricting the general public’s access to content through privacy settings cannot act as a shield to discovery. Lastly, courts have held that spoliation of social media content is sanctionable. Thus, my colleagues and I send a litigation hold letter at the outset of litigation relative to social media.

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George W. Collins, Jr. and John P. DePaolo gave a presentation on October 2, 2015 at the annual conference for the New York State Association of Independent Adjusters in Riverhead, New York entitled “Damages in a Personal Injury/Wrongful Death Case: What’s Recoverable and What’s Not.”

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Attorney John P. DePaolo prevails on behalf of his client in an arbitration before a 3 person panel.

DePaolo’s client was being accused of contributing to the eventual death of an individual who was found by the arbitrators to have been substantially intoxicated when he ran alongside the moving pickup truck and fell underneath. DePaolo’s client was unaware that the decedent was running alongside the truck, and was also unaware that she had actually run over him. The Arbitration Panel determined that DePaolo’s client had not been drinking, and if there was any negligence on her behalf, it would have been nominal. Furthermore, the Arbitration Panel put the primary liability on the son of the homeowner, who was underage, and had held a beer party at his parents’ home, providing alcohol to his guests and allowing them to bring their own. Accordingly, no award was found as against Mr. DePaolo’s client.

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The annual list of the top attorneys in upstate New York was released by the Super Lawyers ® for 2015. The following attorneys from the Bouvier Partnership were included: Michael P. Caffery in the General Litigation category, Emilio L. Colaiacovo in Family Law, George W. Collins, Jr., John P. DePaolo, Paula Eade Newcomb, Dale A. Ehman and Paul Hammond in the category of Personal Injury Defense and Norman E.S. Greene in the category of Civil Litigation/Defense. Jeffrey T. Bochiechio was named a Rising Star in the category of Personal Injury General. The selection process involves peer nominations followed by third-party research, evaluations and final selection.

Emilio L. Colaiacovo resides in Clarence with his family, George W. Collins, Jr. resides in Snyder with his family, John P. DePaolo resides in Williamsville with his family, Paula Eade Newcomb resides in West Seneca with her family, Dale A. Ehman resides in West Amherst with his family, Paul Hammond resides in South Buffalo with his family, Norman E.S. Greene resides in Williamsville with his family and Jeffrey T. Bochiechio resides in Amherst with his family.

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An Erie County Supreme Court jury wasted no time in finding that Mr. DePaolo’s client was not negligent as alleged by the 30-year-old plaintiff who ran out into the street chasing his dog.  Mr. DePaolo’s client was faced with an emergency as he drove his vehicle and had no time to avoid striking the plaintiff.  During the trial, the plaintiff admitted that he was not in a crosswalk and that he violated the Leash Law Ordinance.  Plaintiff’s counsel asked the jury for $200,000.00.  Mr. DePaolo asked the jury to decide that the plaintiff was solely responsible for the happening of the accident and the resulting fracture that required a surgical repair.  The verdict of the jury was returned in thirty minutes and awarded no money damages to the plaintiff.

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John P. DePaolo, Esq., successfully defends client in New York State Supreme Court

John P. DePaolo, Esq., successfully defends client in New York State Supreme Court- The following is Reprinted by permission -Jury Verdict Review & Analysis

Rear-end chain collision – Plaintiff struck in rear and pushed into car in front – Plaintiff claims collision causes aggravation of prior knee meniscal tear previously addressed surgically and prompting new surgery – Plaintiff also contends subject collision causes bilateral carpal tunnel syndrome that required two surgeries – Plaintiff further maintains accident causes cervical herniations that are superimposed on previously asymptomatic degenerative disc disease and which will allegedly occasion two future cervical fusion surgeries – Plaintiff requests $1.3 mil.

Erie County, NY

Negligence was not in issue in this case in which the defendant struck a vehicle driven by a non-party in the rear, which subsequently struck the rear of the plaintiff’s car and which also propelled the plaintiff’s car into the vehicle in front while stopped at an intersection. The plaintiff claimed only moderate neck pain on the date of the accident.
The plaintiff, 63 at the time of the collision, and 66 at trial, contended that he suffered an aggravation of a prior right knee meniscal tear that was previously treated with arthroscopic surgery and which necessitated new arthroscopic surgery. The plaintiff maintained that he will suffer permanent pain and some difficulties ambulating.
The plaintiff further contended that the collision caused bilateral carpal tunnel syndrome that necessitated surgery on each side, and that future carpal tunnel surgery will probably also be required.
The plaintiff also maintained that he suffered several cervical herniations and that although the imaging studies showed degenerative disc disease, it was previously asymptomatic. The plaintiff maintained that he will probably require two cervical fusions in the future.
The plaintiff maintained that the impact to his rear was substantial and indicated that the second impact when he was pushed into the car in front was less significant.
The defendant maintained that the impacts were slight. The defendant introduced, on the issue of the plaintiff’s credibility, evidence that very minor cosmetic damage was sustained and that the cost of repair was $1200. The defendant also pointed out that none of the airbags on the vehicles involved had deployed.

The jury found for the defendant on the no-fault threshold.


Plaintiff’s chiropractic expert: Lawrence Adymy DC from Buffalo, NY.

Plaintiff’s orthopedic surgical (knee) expert: Graham Huckel, MD from Buffalo, NY.

Plaintiff’s orthopedic surgical (neck) expert: Cameron Huckel, MD from Buffalo, NY.

Plaintiff’s orthopedic surgical (wrist) expert: A. Marc Tetro, MD from Buffalo, NY.

Defendant’s neurosurgical expert: Michael Landi, MD from Williamsville, NY.

Defendant’s orthopedic surgical expert: Leslie Bisson, MD from Buffalo, NY.

Rzepka vs. Berlin. Docket no. 20113155; Judge Donna Siwek, 02-18-14.

Attorney for defendant : John P. DePaolo of Bouvier Partnership, LLP in Buffalo, NY.


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