As more and more businesses require customers to submit sensitive personally identifiable information (PII) to provide goods or services – such as Social Security numbers, and birth dates – people are forced to trust that these companies will safely store their data. Unfortunately, that is not always the case.
There were 2,216 confirmed data breaches worldwide in 2017 alone. Data breaches affect companies of all sizes, with 58 percent of targets categorized as small businesses across a range of industries, including health care, education, and financial services.
While data breaches that dominate the news tend to involve the massive corporations and tens of millions of victims, a smaller data breach of a local business that affects people in a limited geographic area is more likely to come across the desk of most attorneys. Three types of data breaches frequently occur in local communities: phishing emails to office staff, employees improperly accessing medical records, or hackers deploying ransomware. Although these data breaches may be “small” in scale, the impact on victims and local communities can be devastating.
Big data breaches grab headlines, but smaller-scale, localized ones occur frequently and have the same impact on consumers. Learn about the features of these breaches and how to handle them in the below article published by the American Association for Justice and written by Faraci Lange partner Hadley Matarazzo and Cohen & Malad attorney Lynn A. Toops.
Americans love their dogs. According to the American Veterinary Medical Association, there are approximately 70,000,000 pet dogs in the U.S., and over 36% of U.S. households own at least one. But while dogs can provide companionship, pleasure and even decrease your blood pressure, they can also bite.
The Centers for Disease Control and Prevention (CDC) reports that about 4.5 million people are bitten by dogs every year. Approximately 800,000 of these injuries require medical attention; nearly 370,000 require treatment in a hospital emergency department. 
Children are more likely than adults to be bitten by a dog – kids ages 5 to 9 are the most common victims – and are also much more likely to be severely injured. In addition to pain and puncture wounds/lacerations, dog bites can cause fractures, nerve damage and other soft tissue injuries, serious infections, disfiguring scars and in rare cases death.
The CDC has issued tips for preventing dog bites, including the following:
- Don’t approach an unfamiliar dog.
- Don’t run from a dog.
- Don’t panic or make loud noises.
- Don’t disturb a dog that is sleeping, eating, or caring for puppies.
- Don’t pet a dog without allowing it to see and sniff you first.
- Don’t encourage your dog to play aggressively.
- Don’t let small children play with a dog unsupervised.
- Always ask if it is okay to pet someone else’s dog before reaching out to pet the dog.
- When approached by an unfamiliar dog, remain motionless (“be still like a tree”).
- Avoid direct eye contact with the dog and stand with the side of your body facing the dog. (Facing a dog directly can appear aggressive to the dog.)
- Wait for the dog to pass or slowly back away from the dog.
- If a dog knocks you over, curl into a ball with your head tucked and your hands over your ears and neck.
If you are attacked or bitten by a dog, try to protect yourself by putting your purse, bag or coat between you and the dog and covering your neck and ears. When you are able to get to safety, immediately wash your wounds with warm, soapy water. If the wound is minor, apply an antibiotic cream and cover it with a bandage.
Seek medical attention if the wound is serious (uncontrolled bleeding, loss of function, severe pain, etc.), if the dog is behaving strangely or looks sick, if you do not know whether the dog has a current rabies vaccination, or if the wound shows signs of infection (redness, increased pain, warmth and/or swelling) or you develop a fever.
Someone who is seriously injured or killed by a dog may have a legal claim against the dog’s owner to recover for pain and suffering, medical bills, lost wages and other expenses. Under New York law, a dog owner is strictly liable for injuries caused by his/her dog if the owner had “prior knowledge of the dog’s vicious propensities.”
A claimant can establish a dog owner’s prior knowledge of vicious propensities with evidence showing that the dog had previously bitten someone else; that it was known to growl, snap or bare its teeth at people; that the owner kept/used it as a guard dog; that it was known to behave aggressively with other dogs; that it had a habit of running at, charging or lunging at passersby or visitors; or other evidence tending to show that the dog was prone to dangerously aggressive behavior.
However, a “vicious propensity” includes not only the propensity of the dog to bite or attack, but also the inclination of the dog to act in any manner that could endanger someone’s safety, even if the behavior is playful rather than ferocious, as long as the injury results from that propensity. For example, an owner who is aware that his large, friendly dog tends to enthusiastically jump up on visitors will be liable for damages if the dog jumps up on a visitor and knocks him over, resulting in an injury. That owner would not be liable if the dog bit the visitor instead of jumping on him, unless the owner had prior notice that the dog had a tendency to attack or bite as well as jump.
In addition to the owner of the dog, the owner/operator of the property where the injury occurs may be strictly liable for injuries caused by the dog of a tenant or customer if he/she has notice of the dog’s vicious propensities.
Thus, New York courts have ruled that a landlord is strictly liable for bite injuries to a visitor caused by a tenant’s dog if the injured party can demonstrate that the landlord: 1) had notice that the tenant had a dog on the premises, 2) knew or should have known of the dog’s propensity to attack/bite, and 3) had enough control over the premises that he could have required the tenants to remove or confine the dog.
There is no liability of a property owner in a dog bite case for failing to maintain his/her commercial property in a reasonably safe condition for visitors or customers. Even where a dog attack takes place in a veterinary clinic waiting room, the veterinarian cannot be held liable without evidence that he/she knew or should have known about the vicious propensities of the particular dog that caused the injury.
Since joining Faraci Lange in 1990, Carol A. McKenna has worked on all types of personal injury litigation cases.
If you or a loved one has been the victim of a personal injury accident, contact Faraci Lange today for a free legal consultation.
 CDC, MMWR Weekly, 7/4/2003, Non-fatal Dog Bite-Related Injuries Treated in Hospital Emergency Departments
 Pollard v UPS, 302 AD2d 884 (4th Dept., 2003).
 See, e.g., Collier v Zambito, 1 NY3d 444, 446-447 (2004]); Meka v Pufpaff, 167 AD3d 1547, 1548 (4th Dept., 2018); Arrington v Cohen, 150 AD3d 1695, 1696 (4th Dept., 2017); Dixon v Frazini, 188 AD2d 1054 (4th Dept., 1992).
 Meka, 167 AD3d at 1547-1548.
 Toher v Duchnycz, ___AD3d___, 2019 NY Slip Op 03487, *1 (4th Dept., 2019); Dixon v Frazini, 188 AD2d 1054 (4th Dept., 1992).
 Hewitt v Palmer Veterinary Clinic, PC, 167 AD3d 1120, 1121-1122 [(3rd Dept., 2018).
Monroe County, in collaboration with the Department of Public Safety, has ran a Stop-DWI program since 1982 in an effort to educate the community regarding the dangers of impaired driving and to provide funding to organizations involved in alcohol and other drug-related traffic safety activities.
“We want to heighten awareness to the issue of DWI, so that the community remembers that drunk driving is a random act of violence and can be prevented,” stated program coordinator Peggy Duffy.
Every year, Monroe County publishes an Annual Report summarizing information regarding the efforts of the Stop-DWI program. It also reports on statistical data of current and historical DWI accidents in Monroe County.
According to the Annual Report that was released this month, local law enforcement made 2,462 arrests due to drunk driving and driving under the influence of other substances in 2018.
Monroe County’s statistics show that 3.13% of total motor vehicle accidents in 2018 were alcohol or other drug-related. Although the difference is small, this percentage is the lowest it has been in the last five years.
According to information received through the Monroe County Medical Examiner’s Office, there were a total of 44 traffic fatalities in Monroe County during 2018 that were reported in the Stop-DWI Annual Report. From these 44 fatalities, 16 deaths (36%) were alcohol or other drug-related.
Faraci Lange has handled hundreds of auto accident cases involving drunk drivers who cause injury to innocent members of the public. If you or someone you love has been the victim of a DWI accident, contact us today.
Faraci Lange Associate, Kristin Merrick, recently settled a motorcycle accident case for a Rochester resident who suffered serious head and neck injuries. Our client was a passenger on a motorcycle when the driver lost control, throwing both of the riders off the bike. After the accident, our client was diagnosed with a herniated disk in her neck. She continues to feel constant neck and shoulder pain as well as occasional numbness to her arms and hands. Kristen was able to successfully negotiate a fair settlement for our client.
At Faraci Lange, we have been representing motorcycle accident victims successfully for over 40 years. We have the resources and expertise to analyze and prosecute these types of cases.
If you or someone you care about was injured in a motorcycle accident, please call us at (585) 325-5150, or click here to contact us for a free legal consultation.
The Daily Record’s Excellence in Law program honors members of the legal community with three distinguished awards: Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes.
Top Women in Law awards recognize the outstanding accomplishments of female attorneys who are making notable contributions to the legal profession while inspiring positive change in the community. The Up & Coming Attorneys category honors those who demonstrate professional accomplishment, community service and a strong commitment to the legal profession early in their careers.
Kathryn has been with the firm for almost twelve years and is a integral part of the team. Along with her tireless work at Faraci Lange, Kathryn is dedicated to make a positive impact on her community. She volunteers with Camp DayDreams, that develops, challenges and empowers Rochester’s urban youth. She is also a board member of the Braddock Bay Bird Observatory, a non-profit organization dedicated to ornithological research, education and conservation.
“I have had the pleasure of witnessing Katie always going the extra mile, whether it be while serving her clients, her profession or her community, ” stated firm partner Hadley Matarazzo.
Lesley is the youngest, and also one of the brightest, attorneys at Faraci Lange. Her work ethic and drive to succeed are just some of the qualities that make her a deserving recipient of the Up & Coming Attorney Award. Along with her dedicated work at the firm, Lesley is also a part of several ethics committees in various legal organizations, including the Monroe County Bar Association’s Ethics Committee, the New York State Bar Association’s Attorney Professionalism Committee and Professional Discipline Committee, as well as the American Bar Association’s Young Lawyers Division Ethics and Professionalism Committee.
Firm partner Matthew Belanger stated, “Our firm is fortunate to have Lesley as part of our team. I strongly believe she will be a leading attorney in the Rochester legal community for many years to come.”
This year’s Excellence in Law honorees are exceptional. Not only are they professionally accomplished, but they are committed to making a difference in their community,” said Suzanne Fischer-Huettner, publisher of The Daily Record. “The honorees, in the categories of Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes, uphold the highest legal standards and improve communities throughout Western New York. It is an honor for The Daily Record to recognize their accomplishments.”
Kathryn and Lesley will be presented with their awards on June 6th at a luncheon and awards reception at the Hyatt Regency Rochester.
Many people have a basic understanding of the legal system based on what they see on television. If you were involved in a motor vehicle collision and have decided to bring a lawsuit, however, there are a multitude of steps before your day in court and a significant amount of time that passes.
GENERAL OVERVIEW OF THE LAW
In New York, in order for a plaintiff to be successful in a motor vehicle case he or she must prove liability, which encompasses the negligence of the other driver and/or owner of the other vehicle and that the plaintiff has incurred basic economic loss exceeding $50,000 or meets the serious injury threshold, and then establish the impact of those injuries, otherwise known as damages.
A plaintiff meets the serious injury threshold if he or she sustains an injury as defined by Insurance Law § 5102, which includes: death; dismemberment; significant disfigurement; fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of a body organ or member; significant limitation of use of a body function or system; and a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s unusual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. (Insurance law § 5102(d)).
Even when a plaintiff proves negligence and meets the serious injury threshold, he or she must establish damages. Damages are subjective and can vary depending upon the people that sit on the plaintiff’s jury.
A motor vehicle case typically begins by filing a pleading. This pleading is most often a complaint accompanied by a summons. Under New York Civil Practice Law and Rules (CPLR) § 3013, a complaint must allege “statements [ . . . ] sufficiently particular to give the court and parties notice of the transaction, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action . . . .” A summons is a document that requires the opposing party to answer the complaint within a certain amount of time.
Depending on the county where the action will be commenced, filing the initiating documents may be required to be done electronically. For instance, Monroe County has a mandatory e-filing program for motor vehicle cases. Once the documents commencing the lawsuit have been filed, they will be served on the opposing party who has an opportunity to answer the allegations in the complaint. A party answering the complaint, shall deny those statements known or believed to be untrue and specify those statements as to the truth which the party lacks knowledge or information sufficient to form a belief. (CPLR § 3018(a)). Any statements that are not denied or specified in lacking in knowledge or information sufficient to form a belief are deemed admitted. (Id.). In addition, an answer must include any affirmative defenses to the causes of action in the complaint or those defenses may be waived, and it can allege counterclaims and cross-claims, where applicable.
After the case has been filed and the opposing party has answered, the next phase is called discovery or disclosure. In New York, the scope of disclosure is broad. Specifically, CPLR § 3101(a), provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Attorneys have different methods of obtaining disclosure. These methods include: depositions upon oral questions (CPLR § 3107), interrogatories (CPLR § 3130), discovery and inspection of documents or property (CPLR§ 3120), physical and mental examinations of persons (CPLR § 3121), and requests for admission (CPLR § 3123).
Throughout the discovery phase, the parties will gather and collect medical records of the plaintiff to better understand and examine the injuries involved. In any case a party can require any other party to give a bill of particulars of such party’s claim, or a copy of the items of the account alleged in a pleading. (CPLR § 3041). CPLR § 3043 sets forth the specified particulars in personal injury actions, of which a motor vehicle collision would be considered. These specified particulars include: the date and approximate time of the occurrence; the approximate location; general statement of the acts and omissions constituting the negligence claimed; where notice of a condition is a prerequisite, whether actual or constructive notice is claimed; if actual notice is claimed, a statement of when and to whom it was given; statement of the injuries and description of those claimed to be permanent and how the plaintiff in a motor vehicle collision sustained a serious injury or economic loss greater than basic economic loss; the length of time confined to a bed and to house; length of time incapacitated from employment; and total amount claimed as special damages, loss of earnings, hospital expenses, and nurses’ services.
Depositions will likely be taken of the plaintiff or plaintiffs and the defendant or defendants. In addition, parties may take the depositions of other non-party witnesses which they believe would be helpful in the prosecution or defense of the action at trial. In a motor vehicle collision case, depositions will be taken of the drivers for the respective vehicles and potentially any passengers or eye-witnesses to the collision. It is also common for a plaintiff to be subjected to a physical and mental examination by the opposing party’s doctor.
Once discovery is completed, two documents: a note of issue, certifying that all discovery has been completed, and a certificate of readiness, are filed. It is common at this juncture to have a pre-trial conference, if one has not been done already with the judge assigned to the case, to get a date for trial.
Parties may also make summary judgment motions, which is a motion made by a party to have the judge determine an issue in a case or an entire case as a matter of law without a jury trial. In essence, the party arguing for summary judgment is saying there is an issue in the case or the entire case that no reasonable jurors could disagree about and so the judge should determine that issue or the case in favor of one party and not the other. Depending on the circumstances of the motor vehicle collision, either side can move for summary judgment. In New York, if a plaintiff can prove liability as a matter of law, interest starts to run on any award of damages at trial. It is not always the case that summary judgment motions are made after discovery is completed and the note of issue and certificate of readiness is filed, but this tends to be the normal procedure.
Once a trial date is set, and the issues for trial have been determined, the judge will set deadlines for the parties to make their pre-trial submissions. These pre-trial submissions include, among other things: a jury verdict sheet, requests to charge, witness list, deposition designations, video-recorded testimony, technology requests, and jury questionnaires. Prior to trial, parties will also submit motions in limine and trial memoranda. Based on the issues left in the case, the plaintiff or plaintiffs will have a trial on those issues to be decided by a jury of six (6) people and two (2) alternates. There is no right to a speedy trial in civil law, so a case could take years before it is ready to be tried.
Every motor vehicle collision case is unique and there are many factors that can make a case simple or complex. Although, most of the cases will follow the above progression to trial, settlement can be reached during each phase of a case up until the jury returns a verdict.
Faraci Lange attorneys, Matthew Belanger and Kristin Merrick, were recently successful in settling a personal injury claim for a Victor resident who’s house was engulfed in flames by the negligence of one of her neighbors.
It was discovered that our client’s neighbor had been using a smoker and had deposited the remaining ash, wood chips, and composite materials into a garbage can that was around 30 feet away from the victim’s house. It was also found that there were gasoline and propane tanks near the garbage can.
Our client’s family who lived in the house were displaced for a period of time due to the damage caused by the fire. One family member also suffered injuries from the smoke inhalation. Matt was able to negotiate a successful settlement for the client and her family.
If you have suffered a serious injury as a result of another party’s negligence or have questions or concerns regarding personal injury claims, contact Faraci Lange today.
View more successful case stories here.
Faraci Lange Senior Counsel, Joseph A. Regan, recently settled a personal injury case for a Webster resident. Our client, who was on crutches at the time from a previous accident, was climbing the stairs to the entrance of his friend’s residence when he started to fall near the top step. He realized there were no handrails on the stairway as he fell to the ground, breaking his hip and his wrist. This accident put our client out of work for an extended period of time.
Joseph Regan was able to negotiate a successful settlement for his client’s personal injuries.
Faraci Lange has been handling claims on behalf of individuals who have been seriously injured due to the negligence of establishment owners for over 50 years. Our attorneys have vast experience in evaluating potential claims in this area and distinguishing those having a reasonable chance of success from those that do not.
To contact us about a Premises Liability claim, please click here or call us at (888) 325-5150 for a free legal consultation.
Since the era of lawyer advertising began, some firms have touted their ability to settle your case without a trial. Since no one looks forward to the stress and uncertainty of having a jury decide their fate, this can be a very appealing enticement to choose a firm with a high or virtually universal settlement record. But are these claims really the virtue they seem? The answer is plainly no.
Initially, statistics show that the vast majority of cases that are not dismissed by a judge on legal grounds are settled without trial. In the entire Seventh Judicial District (the district that includes, Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne and Yates Counties in New York), just over thirty civil trials were conducted in the entire calendar year 2017. When adjusted for population size, the numbers are not dissimilar in other judicial districts in the New York State Court system. Similarly, civil trials in federal courts aren’t frequent either, with the vast majority of trials that take place being criminal proceedings. Moreover, these infrequent civil trials are not limited to personal injury suits, but include all types of civil actions including contract disputes, employment discrimination cases and dozens of others. Accordingly, regardless of which firm is representing the injured plaintiff the likelihood of a settlement without a trial is exceedingly high.
Does that mean that your choice of firm is really meaningless since settlement is likely regardless of which one you choose? Again, that answer is no. Negotiations to resolve a personal injury claim are no different than any other negotiation – the end result is dependent on the strength of your negotiating position. The most important factor will always be the facts of your case. Regardless of the skill of your attorneys, strong evidence of wrongdoing on the part of the defendant and uncontroverted injuries and damages will always put the plaintiff in a powerful negotiating position. But common sense also suggests that an insurance company lawyer sitting across the table from an attorney from a firm that boasts it never takes a case to trial will approach settlement negotiations differently. Moreover, experience in trying cases, like experience in any other realm, leads to better preparation of the case and increased leverage in negotiations.
Defense attorneys and insurance companies do their homework. Their decisions about settlement are purely economic. They have to weigh the economic risks of going to trial against the amount that it will cost the insurance company to reach a settlement. When they perceive weakness, unwillingness or lack of preparedness for trial, this shifts the balance of power in the negotiations strongly in their favor. Settlement amounts, especially settlements involving claims for intangible damages like pain and suffering, can rarely be calculated with any precision. I frequently tell clients that the same case could be tried in front of ten different juries and the outcome would be different in each, with something approximating a bell curve distribution being plotted from the results. The willingness of an insurance company to pay something in the middle or toward the higher end of the bell curve distribution will always be dependent on the perceived willingness and readiness of the attorney for the injured party to take the case to a jury.
The type of claim is also an important factor in whether and for how much a case will settle. For a variety of reasons, auto accident cases have a higher frequency of settlement than all other types of personal injury cases. These reasons include the amount of insurance coverage available (if the value of the damages exceeds the coverage available, insurance companies usually offer the policy limits early on to avoid expense), easier proof of negligence (failing to stop at a stop sign, turning left in front of another vehicle with the right of way, etc.) and the New York No Fault Insurance law requiring a “serious injury” before a jury is permitted to award any pain and suffering. Medical malpractice claims, by contrast, are usually filed against entities such as hospitals and large provider groups with large or unlimited insurance coverage. Proving malpractice claims requires expert testimony on medical issues that are often difficult for a jury to understand. Defendants in medical malpractice cases have disproportionate advantages in resources and psychological advantages with jurors who prefer to side with medical providers in difficult cases.
Although medical malpractice claims do settle, the factors in bringing about a fair settlement for the injured party discussed above are even more impactful. In fact, it is not at all uncommon for such cases to settle during the trial and only after the plaintiff’s lawyer has demonstrated the ability to put an impressive case before the jury. This can, and frequently does, occur in situations where prior to trial nothing or very little has been offered in settlement. Obviously, a firm that boasts to never try cases would not have been able obtain such a result.
Negotiations in larger, more complex cases, whether they be motor vehicle accidents involving complicated issues and catastrophic damages against large solvent entities, product defect cases or toxic injury cases, tend to more closely follow the path of medical malpractice claims than the simple motor vehicle claims. These types of cases, too, are more difficult to settle and tend to settle only after demonstrating a willingness and ability to take the case all the way through trial.
Trials involve risk and, at the end of the day, a good trial lawyer must explain these various risks versus the potential benefits to his or her clients so they can make an informed decision as to whether to accept a settlement or let a jury decide their fate. However, if an injured plaintiff’s attorney is perceived to be unwilling or unprepared to take that risk, the amount of any settlement offered will be significantly less and the clients’ choices will be far more limited. Thus, although it may sound appealing to be told a firm settles all of its cases, such a claim is rarely the benefit to the client that it may seem.
Stephen G. Schwarz has been the managing partner of Faraci Lange, LLP since 1995. He focuses his legal practice on personal injury cases, including medical malpractice, serious auto accident cases, product liability and environmental contamination cases.
If you or a loved one has been the victim of a personal injury accident, contact Faraci Lange today for a free legal consultation.
Many people each year are injured or die as a result of medical errors. Medical malpractice is when a doctor makes a medical mistake that causes injury to the patient.
A medical mistake is when a doctor fails to use reasonable care under the circumstances and does something that another reasonably prudent doctor would not do under the same circumstances. This is referred to as standards of care that doctors must follow.
Many medical malpractice claims relate to injuries caused by a failure to properly diagnose and treat a medical condition, surgery, birth related injuries to the mom and the baby, and medications.
So, is there anything a patient or a patient’s caregiver can do to try to avoid being the victim of a medical error or medical malpractice?
Yes – you have to be your own advocate for either yourself or your loved one. Being your own patient advocate is an important step in trying to prevent medical errors.
Speaking with and questioning doctors and healthcare providers can be intimidating, but it also can be very helpful for both you and the healthcare provider to fully understand what is going on. Make sure you tell the healthcare provider all of your complaints/symptoms in a clear manner. If you feel there is a problem or have a concern, speak up and ask the healthcare provider about it. Doing this can help prevent medical errors.
Do your own research online and write your questions down so you do not forget them. Take notes on what the doctors or healthcare providers tell you. Consider taking a family member or friend with you to important healthcare visits. They may help you remember what the healthcare provider said and ask important questions you might not have considered.
Always follow-up with the healthcare provider and ask about lab results and diagnostic imaging results. Do not just think no news is good news.
When a family member or loved one is in the hospital, the hospital may have a Patient Advocate or a Hospital Representative available to help if you have any questions or concerns. Take advantage of that if you feel you should.
As a patient, it is important to trust your doctor and healthcare providers. You do not have to trust blindly, though. Research your doctor online and see what other patients think of the healthcare provider.
In New York State, information about your doctor may be found at the New York State Physician Profile or at the Department of Health Office of Professional Medical Conduct.
These are just a few of the ways you can be an effective advocate for yourself or loved ones. Trust your instincts, ask questions, and speak up if you still have concerns. This will not only help you better understand your own health, but it may also help prevent medical errors.
Jennifer L. Fay has been successfully representing plaintiffs in Medical Malpractice claims since she joined Faraci Lange’s Buffalo office in 2013.
To contact Faraci Lange about a potential medical malpractice case, call or text us at (888) 325-5150 or click here to submit an online contact form for a free legal consultation.