The family of a 57-year-old member of the Buffalo Fire Department received $100,000 from the
City of Buffalo and Nationwide Insurance Company when he aggravated a
lower back injury during
an automobile accident (April 2004)
A 47-year-old Genesee County woman wins $90,000 from Healthcare Underwriters Mutual for
injuries she sustained when a venetian blind fell on her head while working
at United Memorial Hospital (April 2004)
A 58-year-old Orleans County woman wins $40,000 after she slipped on ice and
broke her leg in a Jubilee Foods parking lot (March 2004)
A 75-year-old Lancaster woman accepts $20,000 from Federated Insurance Company for a
knee injury she sustained when she tripped over torn up flooring at a Tops
Supermarket (March 2004)
A 50-year-old West Seneca man accepts $18,000 from the City of Buffalo for a finger
injury sustained when his finger became lodged between a loose bleacher plank and a
metal post (February 2004)
A 33-year-old Batavia woman accepts $25,000 from Utica National Insurance Company when she
tripped over a broken concrete curb at her daughter's school and
broke her wrist (January 2004)
A 63-year-old West Seneca volleyball official accepts $12,000 from Network Adjusters when he
injured his knee when a volleyball stand, upon which he was officiating,
collapsed (December 2003)
An 11-year-old Buffalo boy wins $15,000 from Travelers Insurance Company when bitten
on the arm by a neighbor's dog (February 2004).
Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall,
dog bite and defective product cases. He is a member of the Association of Trial Lawyers of
America, Western New York Trial Lawyers Association, New York State Trial Lawyers Association
and Erie County Bar Association Negligence Committee.
[top of page]
Estate Planning Seminars
"Crucial Senior Updates Workshop on How to Survive Your Retirement" will be
presented by Robert Friedman of Friedman & Ranzenhofer, P.C. and Michael W. Buettner, registered
financial consultant of Raymond James Financial Services, Inc. on Thursday, October
7, 2004 at Vinecroft Retirement Community, 5945 Vinecroft Drive, Clarence Center, New
York and on Tuesday, September 21, 2004 from 6:30 to 7:30 p.m. at Montgomery Park
Retirement Residence, 6363 Transit Road, East Amherst, New York. Learn how to protect your assets
from catastrophic illness and nursing home costs, how estate taxes affect you, ways to invest in
today's economic times and ways to maximize your retirement distribution. The topics
are: techniques to minimize the cost and delays of probate, how to qualify for Medicaid for nursing
home care, financial management and medical decision-making in the event of disability, how to
provide for your dependents and favorite charities and asset protection strategies. The legal
tools for retirement, financial and estate planning which will be discussed include: wills,
trusts, life estate deeds, guardianships, health care proxies, private annuities, IRAs, long term
care insurance and life insurance. There is no registration fee. To register, call (716) 631-9999.
[top of page]
Landlord Seminars
"Landlord Legal Survival" will be presented by attorney/author Robert Friedman
on Monday, October 25, 2004 from 6:00 to 9:30 p.m. at Clarence High School, Room 121, 9625 Main
Street, Clarence, New York. Mr. Friedman will discuss evictions, leases, Small Claims Court,
discrimination laws, civil liability, insurance, security deposits, elderly tenants, drugs, debt
collection and lead paint regulations. To register, call Clarence Community Education at (716)
407-9290 or visit www.clarenceschools.org.
[top of page]
Delivery of Deed is Key to Medicaid Eligibility
A woman signed a quitclaim deed in January of 1998 conveying ownership of her home
to her two children for the consideration of $1. Although she physically delivered the deed to one
of her daughters in January, 1998, the deed was not actually recorded until the house was being
prepared for sale in September, 2002. The county Social Services Department denied the woman's
application for Medicaid on the grounds that the house valued at $59,900 had been transferred in
September, 2002 for less than fair market value. The Department imposed a penalty period of eleven
months, during which the woman would be ineligible for Medicaid coverage for the cost of nursing
facility services. The Department determined this by dividing the $59,900 value of the home by
the $5,393 applicable regional penalty rate at that time. A transfer for less than fair market
value, unless it meets an exception, will cause a Medicaid applicant or recipient to be ineligible
for nursing facility services for a period of months equal to the total cumulative uncompensated
value of all assets transferred during or after the look-back period, divided by regional penalty
rate (the average cost of care to a private patient for nursing facility services in the
region). The "look-back period" is 36 months immediately preceding the date that the person receiving
nursing facility services is both institutionalized and has applied for Medicaid. In the case of
payment to or from a trust, the look-back period is 60 months. At the Erie County Department of
Social Services Fair Hearing, it was determined that the Department's denial of the Medicaid
application was incorrect under New York Real Property Law because the transfer of real estate takes
effect from the date of delivery, not the date of recording.
For further information on Medicaid, send a stamped ($.62) self-addressed envelope to P.O. Box 31,
Akron, New York 14001 with a request for pamphlet "M".
[top of page]
Deed Restrictions Prohibit Cell Tower
A homeowner's association had deed restrictions that prohibited any building except
single-family homes and banned any trade or business whatsoever. One of the owners leased 2,000
square feet of one lot and a right of access on an adjacent lot to Verizon Wireless to build a cell
tower. The other owners sued to enforce the restrictive covenants and have the tower removed.
Meanwhile, the town zoning board approved a special permit for a 120-foot cell tower with a two-story
equipment storage shed at the base and parking space for maintenance vehicles. The board had
rejected eighteen alternative sites because they did not provide adequate cellphone coverage.
Verizon argued that the public policy underlying the Federal Telecommunications Act of 1996 had
precedent over the covenants. The act provides that the regulation of the placement, construction,
and modification of personal wireless service facilities by any state or local government shall
not prohibit or have the effect of prohibiting the provision of personal wireless services.
However, the New York Court of Appeals found that enforcing the covenants would not prohibit Verizon
from providing service, because the cell tower could have been placed elsewhere in the town. The
court said that upholding Verizon's contractual rights in no way denies wireless telecommunication
services in the town. The court also rejected Verizon's argument that upholding the covenants in
spite of the town board's decision to approve a permit would undermine the town's authority. The
court ruled that Verizon and the town cannot negate the restrictive covenants by ignoring them and
proceeding with the permit process and construction. The court noted that the act's anti-prohibition
provision applies to state or local governments and does not preempt the power of private citizens
to enforce their contractual rights, or limit judicial enforcement of those rights. Therefore,
Verizon must remove the tower.
[top of page]
What Clients Like About Elizabeth M. DiPirro
"Elizabeth responded to questions and concerns in a thoughtful way and is very thorough. You
don't always find that quality in lawyers."
M.M. of West Seneca, NY...
"I want to thank you again for your representation of me in family court. I couldn't have had
a better outcome. I will be using you and your practice for all my legal needs from now on."
K.W. of Hamburg, NY...
"We found Elizabeth DiPirro to be very friendly, informative, knowledgeable and thorough. She
took care our our wills expediently. We would and have recommended your firm highly. Thank you
once again."
J.P. of Cheektowaga, NY.
We are often asked if we have time to serve additional clients. We appreciate your business, and
we would also appreciate your referrals. We are a growing firm so new clients are welcome. Please
mention our name to your friends, relatives and business associates for estate planning, real
estate, personal injury, probate, criminal, traffic, marital, family, bankruptcy, business,
municipal, corporate, debt collection, landlord/tenant and elder law matters.
[top of page]
Back Issues/Free Subscription
Have you missed the past eight (8) years of the LegalSurvival.com newsletter? If so, all back
issues are available at www.LegalSurvival.com/newsletter. To
receive a free subscription, call (716) 631-9999.
[top of page]
Nursing Home Lawsuit Verdicts
After a 78-year old woman fractured her wrist and hip, she was admitted to a
small nursing home in rural Texas for a few weeks of rehabilitation. While at the nursing home,
she suffered from pressure sores, malnourishment, dehydration and other health problems so severe
that she was hospitalized several times. By the time of her third hospital admission - two and
a half months after she entered the nursing home - her health had completely deteriorated and
she lapsed into a coma and died. Her family obtained a $25 million verdict against the nursing
home.
A $10 million verdict was obtained in March of 2004 against a Mississippi nursing
home that failed to properly treat an elderly woman whose leg was amputated after developing
pressure sores.
A Florida jury awarded $17 million in December of 2003 against a nursing home on
behalf of an Alzheimer's patient who developed pressure sores that turned gangrenous because of
alleged nursing home negligence.
A Georgia jury awarded $2.2 million in December of 2003 against a regional
nursing home chain for the wrongful death of an elderly man who suffered from pressure sores,
dehydration, malnutrition and frequent falls. The nursing home owner's awareness of potential
health problems and deliberate failure to correct them was proven by understaffing, state health
code violations and repeated failure to correct substandard conditions.
[top of page]
Tenant Crime Victims Sue Landlords
Landlord sued for murder of tenant. Despite repeated requests, the landlord
never replaced a broken window pane in the front door. The tenant's brother ultimately covered
up the hole with plywood. The tenant's estranged boyfriend removed the plywood, opened the door,
entered the apartment and stabbed the tenant to death. The boyfriend later testified that he
would have not have risked hurting himself by trying to break the glass pane. The tenant's family
sued the landlord for negligence. The landlord argued that it did not have a duty to prevent the
boyfriend from entering the apartment because the attack on the victim was not foreseeable. The
court noted that replacing the window pane would have cost the landlord about $15. The California
Court of Appeals, 14th District ruled that if the facts known to the owners were sufficient to
notify them of the slight likelihood that an intruder might seek to enter the apartment, they had
a duty to take the minimally burdensome steps available to restore the integrity and security
provided by a repaired front door.
Sexual assault by apartment maintenance worker. A maintenance worker sexually
assaulted a 17-year-old girl in her apartment, gaining entry to the apartment by telling her that
he was there to repair the ceiling. She continues to suffer psychological problems. Her mother,
individually and on her daughter's behalf, sued the landlord and the management company alleging
negligent hiring and retention of the maintenance worker, who had been arrested on criminal
charges thirteen times before he was hired. The tenants alleged that the defendants knew or should
have known of it's employee's criminal record and that the defendants violated their own hiring
practices by not checking the worker's background or by hiring him despite it (Fulton County State
Court, Georgia).
Landlord liable for failure to protect tenant from neighbor's assault. A tenant
was repeatedly assaulted by another tenant in the apartment building. She complained to the
building managers, who did nothing. One night while she was returning to her apartment, the other
tenant attacked her again, throwing her down the stairs resulting in physical injuries. She filed
suit against the landlord alleging negligence in failing to protect her from the attacks. The
California Court of Appeals ruled that because the tenant's attacks were repeated and the tenant
reported them, the landlord knew or should have known of the danger that the tenant would cause
harm. Thus, the landlords owed the tenant a duty of care that they had breached by failing to
take any action, such as installing a security camera, hiring a security guard or evicting the
violent tenant.
Widow sues for negligent security practices. An intruder entered the tenant's
apartment during the night through a sliding glass door and shot the tenant who suffered fatal
injuries. The tenant's wife sued the landlord and manager for her husband's wrongful death,
alleging that they allowed a dangerous condition to exist under its control and failed to prevent
a foreseeable criminal act. Defendants contended that they had no duty to protect tenants from
violent crime because the incident was in their apartment, not a common area of the premises, and
that their security measures were adequate. The court ruled that a landlord does not necessarily
escape liability simply because the criminal attack took place inside leased premises instead of
a common area. If a defect within the common area adversely affects tenants of the premises, the
landlord may still be liable, the court held. Furthermore, the court found, the landlord's duty
to provide reasonable security measures does not end when such measures are put in place. Rather,
the landlord has a continuing duty to inspect and maintain the security devices to make sure they
will continue to deter criminal activity (Maryland Court of Appeals).
[top of page]
Disclaimer
The LegalSurvival.com Newsletter is published quarterly as a public service by
Friedman & Ranzenhofer, P.C., Attorneys, with offices in Akron, Buffalo, Batavia, West Seneca and
Williamsville/Clarence, New York. The firm, founded in 1955, practices estate planning, real estate,
personal injury, probate, criminal, traffic, marital, family, bankruptcy, business, municipal,
corporate, debt collection, landlord/tenant and elder law. Your coments and questions are always
welcome. For further information or to obtain permission to reprint the contents of this
newsletter, call Robert Friedman at (716) 631-9999, visit the Legal Survival web site at
www.legalsurvival.com or e-mail to
rfriedman@legalsurvival.com.
While a great deal of care has been taken to provide accurate and current information, the ideas, suggestions, general principles and conclusions presented in this newsletter are subject to local, state and federal laws and regulations, court cases and any revisions of same. The reader is thus urged to consult legal counsel regarding any points of law - this newsletter should not be used as a substitute for competent legal advice. The purpose of this newsletter is to give the reader a general understanding of the law - not to provide specific advice. Every effort has been made to achieve accuracy. The law constantly changes and is subject to differing interpretations. Always consult with your attorney and act only on his or her advice. Friedman & Ranzenhofer, P.C. shall not be responsible for any damages resulting from any inaccuracy or omission. This newsletter is designed to provide accurate and authoritative information in regard to the subject matter covered. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Certain portions of this newsletter may be applicable only to New York State law.
[top of page]
