Law Office of David Ascher

03/31/2023

CASE OF INTEREST: MADISON SQUARE GARDEN DOES NOT LIKE YOUR FACE
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​ Recent technology called “facial recognition” has been used at Madison Square Garden to bar certain lawyers from sporting events. After spending a morning in a crowded courtroom, I can’t say that I blame the Garden, but I think we can all agree that such actions are simply not nice. What if Mr. Dolan starts banning podiatrists who don’t cure his warts or ministers who will not absolve his sins?
​ Mr. Larry Hutcher really wants to go to Ranger and Knick games. Larry brought a motion for a “Preliminary Injunction” to enjoin the Garden from barring him and other sports loving attorneys. Hutcher v. Madison Square Garden: NY Supreme Court 65793/23. Larry based his motion on NY Civil Rights Law. The Civil Rights Law section 40-b what requires admission to all who hold tickets to “legitimate theatres, burlesque theatres, music halls, operas and the circus.” Athletic events are not included in the statute.
​ The Court did not allow the injunction. The law does not provide a right to watch the Knicks or Rangers. Sports were not included. Based upon this law, you have more constitutional rights to see a burlesque show rather than the Knicks.
​While this blog usually deals with accidents and injuries, I could not resist giving everyone an insight into the nuts and bolts of your constitutional right to watch a burlesque show.
​ However, if you have any questions about accidents or injuries please feel free to call me at (212) 964-1515.

09/30/2022

To All our Dear Friends:

Wishing you and your families a happy, healthy and sweet New Year!

From the Law Office of David Ascher
(212)-964-1515
[email protected]

02/10/2022

CASE OF INTEREST
​​​ RES IPSA LOQUITOR: LATIN FOR “DANGERS
​​​ IN THE BATHROOM”

​ The legal doctrine “Res Ipsa Loquitor” is an ancient legal theory which permits an injured party to prevail in a lawsuit where the accident can only occur as a result of someone’s negligence. The doctrine allows recovery if three elements are satisfied: 1) the event does not ordinarily occur without negligence; 2)the accident occurred due to an instrument in the exclusive control of the defendant; 3)the accident was not due to any voluntary action of the Plaintiff.
​ In the case of Valdez v. Upper Creston 2022 NY Slip Op 00367, a young women in halfway home was in the restroom. When she reached for the toilet paper above the toilet seat, she stepped on a drain cover in the floor which immediately collapsed under her foot. The Plaintiff brought the case under the theory of “Res Ipsa Loquitor.”
​ The Defendant argued that it was not in “exclusive control” of the cover, as other residents of the halfway home utilized the bathroom. They argued the defendant should not be considered within “exclusive control” of the drain cover. The Court rejected this argument stating there was no proof of any resident touching the cover. Mere speculation is not enough.
​ The Court held that the doctrine of applied and the Plaintiff could recover against the Defendant. The “legal insight” into this doctrine of “Res Ipsa Loquitor” is that the law will allow inferences to be drawn into certain circumstances, but they are narrow and limited. The theory is used to protect in certain circumstances, but cannot compare to a well investigated, well documented explanation of how the negligence unfolded and occurred.

07/28/2021

CASE OF INTEREST FROM YOUR ACCIDENT ATTORNEY DAVID ASCHER: GOOD PHOTOGRAPHS

I hope you are all having a happy, fun and safe summer.

I am catching up on reading cases from different courts. The case Martinez v. 560-568 Audobon Realty struck me as something we should all be aware of: good photographs.

In this case the Plaintiff fell on marble steps that had a crack. The lower Court dismissed the case saying that the defendants could not be held liable as there was no evidence they were aware of the crack or the crack had beenpresent for a long enough time where they should have known about it. This is called the law of notice. A defendant is only responsible if it had notice of a condition and failed to fix it.

The Appellate Court reversed and reinstated the case. The Court said an issue existed as to whether the Defendant should have known about the accident. The Court pointed to the photographs which showed the steps were worn out. Based upon the photographs showing worn steps, the Court said a jury could infer that the crack was present for a long period of time and Defendant should have known about the defect and therefore possibly responsible.

What is the takeaway: If you are in an accident, take photographs of the defective condition or the condition which caused the accident. Do it immediately.

Feel free to call with any questions. If you know someone who has fallen due to the negligence of another, please call DAVID ASCHER - (212)964-1515

11/10/2020

CASE OF INTEREST
​​​ Dogs, Cats, Vets and Personal Injury Cases
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The first sentence of a court decision can sometimes tell you the Court is amused by a case. In a recent New York Court of Appeals case, the first sentence gives away where the Court is going. Hewitt v. Palmer Veterinary Clinic, P.C. “Defendant Palmer Veterinary Clinic treated Vanilla, a dog, for a paw injury at its clinic.” The Plaintiff was injured when the doctor lost control of dog in the waiting room. The dog jumped at a cat sitting in the lap of the Plaintiff in the waiting room. You can tell the Court was amused.
​ The real issue on appeal deals with an old subject. Normally, to hold a dog owner liable for injuries, the Plaintiff must demonstrate that the dog owner knew of its “vicious propensities.” It is similar to many negligence actions where a defendant will only be held responsible for defects, conditions or problems that it knew about or in the course of business should have known about.
​The case appeal presented a novel issue. Whether the Plaintiff must prove the veterinarian who treated the dog was aware of vicious propensities or demonstrate that this dog had such vicious inclinations. In essence, hold the vet to the same legal standard as the dog owner. The Court held that:

An animal in a veterinary office may experience various stresses- in addition
to illness or pain…give rise to a risk of aggressive behavior. Therefore we conclude
​that Palmer (Vet) does not need the protection afforded by the vicious propensities requirement​.

The Court essentially is lowering the level of proof for an injured Plaintiff in a veterinary office. Is this public policy? Is this fair? Maybe the Court was not amused by the dog’s disarming and misleading name-Vanilla.

10/13/2020

Victory in Court
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Today, this office won a victory in Court. A Bronx judge granted judgment in favor of an injured person represented by this office, Law Office of David Ascher. The Plaintiff was injured when a truck struck the rear end of her vehicle. The judge found that as a matter of law, the Plaintiff was entitled to a judgment on liability. The only issue for a jury to determine is damages. The defendant made several arguments that judgment was inappropriate so early in the case, however, this office overcame defendant arguments and convinced the judge that judgment in favor of the injured person was proper.

If you have any questions about any accident or injuries. Feel free to call David Ascher-(212)964-1515.

07/09/2020

Sidewalk Accidents Part 2

06/23/2020

Sidewalk Accidents

06/16/2020

Explanation of No Fault

06/15/2020

WHO IS A CONSTRUCTION WORKER?

The State of New York has a special law which protects injured construction workers it is known as Labor Law 240 and 241. Labor Law 240 is often referred to as the "Scaffold law" . If worker gets hurt at an elevated work site, the owner of the premises can be held strictly liable. The kicker is that one must be doing work which is defined in the statute. In legal terms, one must be a "covered" worker. A recent Appellate Division case determined that an inspector at a job site was not deemed to be engaged in construction at the work site where he was injured. Therefore, the worker did not get the protection of the Labor Law. The Court wrote:
Plaintiff, a bridge inspector, was injured while performing an inspection of a City bridge, pursuant to a contract providing for periodic bridge inspections to determine any necessary future repairs. Upon consideration of the contract and the work performed by plaintiff, it is clear that he was not engaged in an activity within the ambit of Labor Law § 240(1) or 241(6) at the time of his accident (see Martinez v City of New York, 93 NY2d 322, 326 [1999]; Bosse v City of Hornell, 197 AD2d 893, 894 [4th Dept 1993]; Shpizel v Reo Realty & Constr. Co., 288 AD2d 291 [2d Dept 2001]; Russ v State of New York, 267 AD2d 833, 834 [3d Dept 1999]).
If you were hurt at a job site, contact this office to determine whether you can make a Labor Law claim. Call David Ascher 212-964-1414

06/11/2020

06/11/2020