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Preparing a Proper Will

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Categories: From the Firm Tags: , , ,

Talking about estate planning can be a difficult discussion for many people. There can be many reasons that individuals avoid the thought, but having a will is of utmost importance for everyone. Whether it’s with regards to finances, possessions, family members, and even pets, having a plan will protect the ones you love as well as your estate.

When thinking about your legacy, having the RIGHT kind of will is even more important.  A self composed will, or hand written document can often create more problems no will at all. Challenges to invalidate wills, or will contests, are generally made by potential heirs or beneficiaries who receive little or nothing from the will. However, simply being unhappy about a will isn’t a good enough reason to invalidate it. There must be valid legal ground for a will contest to be successful. Wills are typically invalidated on the ground that:

  1. The will was a forgery;
  2. The will was not properly drawn, signed, or witnessed, according to the state’s requirements;
  3. The decedent lacked mental capacity at the time the will was executed; or
  4. There was fraud, force, or undue influence.

If the will is held invalid, the proceeds are distributed under the laws of intestacy (the laws that apply when there is no will), which means that an inflexible formula will determine which of your heirs get what, regardless of your preferences.  In addition, will contests are expensive, and the money to pay to defend a will contest is taken out of the total assets of the estate, meaning all heirs suffer.

For these reasons, it’s best to do everything possible to avoid a will challenge if you know someone will be disappointed or angry about the provisions of your will.  Needless to say, if there is even the possibility of a will contest, an experienced lawyer is a must to help you prepare your will.

An experienced lawyer can help prevent fights among your beneficiaries and instead promote acceptance that your true wishes have been spelled out and will ultimately be fulfilled. For example, your lawyer may ask a physician to evaluate your mental competence—and perhaps serve as a witness when you sign your will. Your lawyer can videotape your execution of the will (signing before witnesses).  Additionally your lawyer can include a no contest clause in your will, which states that if anyone files a lawsuit to challenge who you have provided for in your estate plan, then the person challenging the will or trust will receive nothing from your estate.  Finally, don’t forget about your will. A consistent pattern of sitting down with your attorney once a year to review your will sends a powerful message that will help to stave off any thoughts of a will contest.

GPS added to NYS Vehicle & Traffic Laws

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Categories: Legal Update

Most people realize that it is illegal to operate a motor vehicle while holding a cell phone. The Third Department Appellate Division issued a decision expanding the law to a GPS device. The court determined that a person holding a hand-held GPS device while driving violated New York State’s Vehicle & Traffic Law §1225-d[2][a] since the device is mobile and receives data to calculate the driver’s geographical location and to communicate directions. The court reviewed the legislative history “to encompass any portable electronic device that diverts a driver’s attention away from the road and prevents he full use of a driver’s hands.” Matter of Clark vs. New York State Dept. of Motor Vehicles, 2017 NY Slip Op 05133 (3rd Dept. June 2017)

Dismissal of Snow Plow Case

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Categories: Dismissal, Judgements Tags:

Bouvier Law attorney Paula Eade Newcomb was successful in obtaining a dismissal of a lawsuit against a municipality and its snow plow operator.  The snow plow operator was in the process of backing up a hill to further remove snow from a country roadway.   He looked in his mirrors, saw nothing, and was ready to plow when the collision occurred with a vehicle that was traveling down the hill.  The supreme court judge agreed with Bouvier Law that the actions of the snow plow driver did not constitute recklessness pursuant to NYS Vehicle & Traffic Law and granted summary judgment in favor of the defendants.

Successful judgement for Town of Gaines

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Categories: Judgements Tags: , , ,

In Richardson v. Town of Gaines (Supreme Court, Orleans County), Bouvier attorney George W. Collins, Jr. moved successfully for summary judgement against plaintiff’s claim on the issues of liability and failure to meet the serious injury threshold required by New York State Insurance Law.

The claim arose from an accident on March 30, 2014 when the Town snowplow struck a vehicle driven by the plaintiff as an intersection controlled by a stop sign for the snowplow only. Collins successfully argued to the Court that the defense submissions supported a finding that the drover of the snowplow did not act negligently or with reckless disregard to the safety of others and exercised reasonable care under the circumstanced. Without the use of an independent medical examination, Collins argued to the Court that the plaintiff had tested at her deposition that she back to work in approximately six weeks and that there were no activities that she could not perform, essentially relying on all of the plaintiff’s treatment records.

Index No.: 15-42536

Our friend, John F. Canale (1922-2017)

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Categories: Firm News

Bouvier Law mourns the loss of friend and special counsel attorney John F. Canale. Mr. Canale, 94,  passed away at home on April 12 after a brief illness, surrounded by his three children.

Married  67 years to the late Gladys “Becky” Canale, Mr. Canale was a WWII Air Force Veteran who flew 35 missions for his country in Europe. After the War, John finished law school and spent his career practicing negligence law in Buffalo. In 1993, Canale, Madden and Burke merged with Bouvier Law. Mr. Canale continued to work as special counsel at Bouvier Law until the time of his death – greeting us with a great big smile every Friday.

 

 

Town of Perrysburg receives judgement

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Categories: Judgements, Uncategorized Tags: ,

In Seeley v Merrill and Town of Perrysburg (Supreme Court, Cattaraugus Country), Bouvier attorney George W. Collins, Jr. successfully moved for summary judgement on the issue of liability on behalf of the town of Perrysburg for a claim arising out of a trip and fall on a dilapidated broken and overgrown sidewalk on June 20, 2014 allegedly caused by the improper maintenance and/or design construction by the Town of Perrysburg which it failed to perform necessary repairs or provide proper warnings. Collins successfully argued that there was insufficient evidence that the “sidewalk” in question was constructed or maintained by the Town Clerk or Superintendent of Highways so as to meet the statutory requirements stated in the applicable Town Law. A municipality cannot be held liable for the failure to maintain a reasonably safe condition in an area it does not own or control unless it affirmatively undertakes such a duty. Moreover because the plaintiff tripped on a tree root, the case law states that a land owner will not be help liable for injuries arising from condition on the property that are inherent to the nature of the land and could be reasonably anticipated by those using it. Co-defendant Merrill’s motion for summary judgement was denied.

Index no.: 83498

Legal Update: Changes in New York State regarding injuries caused by farm animals

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Categories: Legal Update Tags: ,

From the desk of John P. DePaolo

In New York State, an owner of a canine is entitled to assume that his or her dog will not injure anyone, unless the dog’s previous behavior gave evidence of vicious propensities.  Pattern Jury Instruction 2:220 defines vicious propensity as “a natural inclination or usual habit to act in a way that endangers people or property”.  Proof is also required that the canine owner knew or should have known of the vicious propensities.  A canine owner is responsible for any injury on a strict liability basis, but only after the owner continues to harbor the canine with knowledge of vicious propensities.

The Law in New York is that a Court may not take judicial notice of the viciousness or ferocity of any particular breed.  Additionally, the size of the animal is insufficient to establish that a particular animal has vicious propensities.  Kennet v. Sossnitz, 260 A.D. 759 23 N.Y.S.2d 961, Aff’d, 286 N.Y.623 36 N.E.2d 459.

The application of the vicious propensity rule to farm animals, including livestock, is more problematic.  Recently, in Hastings v. Sauve, the Court of Appeals distinguished the liability of an owner of a farm animal from cases involving household pets.  A farm animal typically is not implicated in litigation after a bite.  Most often horses and cattle are found on a roadway where a motor vehicle accident ensues.  The trial court, in Hastings, ruled in favor of the defendant based upon lack of a showing that the farm animal in question had exhibited previous vicious propensities.  Accordingly, an owner of a farm animal can be held responsible for issues of negligence in not properly securing their animal from a roadway or other area where liability might ensue.  See Hastings, 21 N.Y.3d 122; 989 N.E.2d 940; 967 N.Y.S.2d 658 (March 21, 2013).  The Hastings Decision, specifically focused on a domestic animal as that term is defined in Agriculture and Markets Law § 108(7).  Thus, Hastings has no application with respect to household pets.

A concern for canine owners is often whether or not they would be covered if their animal causes an injury.  Some insurers have canceled insurance or added a canine exclusion after an individual’s canine is involved in an injury.  Owners of canines that have never previously exhibited a natural inclination or usual habit to act in a way that endangers people or property should enjoy coverage without exception.

Successful judgement on behalf of Village of Hamburg

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Categories: Client News, Judgements Tags: ,

In Cintarino v. Village of Hamburg (Supreme Court, Erie County), George W. Collins, Jr. moved successfully for summary judgement on the issue of liability on behalf of the Village of Hamburg. The incident was a slip and fall accident with injury that occurred on January 8, 2014 when the plaintiff slipped on ice on a sidewalk in the Village of Hamburg following 72 hours of subfreezing temperatures and blizzard like conditions. Based on a site specific weather analysis report, and other documentation of the weather conditions, along with the absence of any prior written notice required by New York State Village Law and applicable Village Ordinances giving the Department of Public Works 24 hours following the conclusion of a snow storm to clear ice and snow, the court dismissed the claim with prejudice in all respects,

Index No.:802970-2015

Federal court judge finds in favor of local police lieutenant

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Categories: Judgements

A federal court judge for the Western District of New York has agreed with the arguments of Bouvier Law LLP, and granted summary judgment in favor of a local police lieutenant who entered a home to conduct a welfare check on an elderly gentleman.  The court found that the officer was entitled to qualified immunity and dismissed the complaint.

The police department had received a telephone call from Adult Protective Services seeking assistance.  When officers arrived at the house, the gentleman’s grandson approached them in the driveway and was confrontational, and refused to provide access to the gentleman or bring the gentleman to the door to verify the welfare of the individual.  The grandson went back into the house and the officer followed.   The officer was eventually permitted to speak with the elderly gentleman, confirmed his welfare, and left the house.  The plaintiffs claimed that their Fourth Amendment rights were violated by the warrantless entry of the police officer.

The judge found that the officer was entitled to qualified immunity as there was no clearly established law at the time regarding this particular situation.   Based on qualified immunity, the lawsuit was dismissed.  The court elected not to decide whether there was a Fourth Amendment decision.

Recent Decision in Favor of Town of Boston

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Categories: Client News, Judgements Tags: , ,

A recent decision handed down from the State of New York Supreme Court, County of Erie, finds in favor of Bouvier Law’s municipal client and plaintiff in the case, the Town of Boston, New York.

Attorney Paula Newcomb shared a summary of the case:
Agreeing with the case-law cited by Bouvier Law, the judge granted the Town of Boston’s cross-motion for summary judgment declaring that the property in question was not a town road, and in fact was private property. The court also agreed with the Town and declared that the Town of Boston had the right to erect barricades at the end of its road for safety reasons, and rejected plaintiff’s request for removal of the barricades.

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