News

We are proud to announce that Kenneth Krajewski, Renata Kowalczuk, Donald B. Eppers, Jessica Burgasser, and Kristen B. Degnan were selected as Super Lawyers 2015. Inclusion in Super Lawyers is based on a rigorous, multi-step selection process, which includes background and experience as well as peer review recommendation. 

After two years of planning, Brown & Kelly has officially moved to the Main Place Tower. We would like to give our heartfelt thanks to the two people who engineered the move: Managing Partner Kenneth A. Krajewski and Senior Litigation and Trial Paralegal Rebecca Koenig.

We would like to point out that Ms. Koenig not only planned the move itself, she was our “Moving Czar”. She coordinated our move with all vendors, both buildings and our attorneys and staff, and was the driving force in the design of the office. Her keen eye in creating a comfortable, yet businesslike, the atmosphere is evident in this picture which depicts our waiting area. It is as comfortable as it looks.

Yesterday, the 2nd Circuit Court of Appeals upheld almost $4 million in damages awarded to Elijah Turley by the United States District Court in Buffalo, as a result of his employment discrimination and harassment claims against his former employer, Arcelor-Mittal Steel.

Although the Court reduced the punitive damages portion of the judgment from $5 million to $2.6 million, it turned away almost every argument made by the defendants on appeal.

The court noted that Mr. Turley had “endured an extraordinary and steadily intensifying drumbeat of racial insults, intimidation, and degradation over a period of more than three years.” The court noted that the employer’s “meager investigations and nearly total lack of action failed to stop the escalating abuse; instead, managers often appeared to condone or even participate in part in the harassment.”

While the court observed that few recorded cases had dealt with an “award of quite this magnitude” ($1.32 million) in damages for pain and suffering, the reason for this is that this level of harassment and mistreatment had never before been reported, and “the case before us appears to be unique.”

Brown and Kelly, and trial counsel Donald B. Eppers, were honored to represent Mr. Turley in his efforts to obtain justice for what he endured.
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Many insurance policies contain a “non-cumulation clause” which limits the insurer’s exposure to the policy limit.  The Court of Appeals previously addressed the non-cumulation clause for lead paint claims in Hiraldo v. Allstate, 5 N.Y.3d 508, 840 N.E.2d 563 (2005), where the infant plaintiff alleged lead poisoning over the course of three (3) years while living at a property owned by the insured.  The insured had a landlord’s insurance policy with Allstate, and two (2) identical renewal policies, each with a $300,000 liability limit.  The Court of Appeals held that the non-cumulation clause precluded the plaintiff from stacking the policies.  The liability limits for plaintiff’s claims were thus $300,000.  
On November 25, 2014, Nesmith v. Allstate Insurance Company decision, the Court of Appeals held that the non-cumulation clause may limit the insurer’s exposure in cases where multiple plaintiffs were successively exposed to the same lead hazard in the same household. A copy of the decision is enclosed.
In Nesmith v. Allstate Insurance Company, two (2) families occupied the same apartment in successive years between 1992 and 1993. Felicia Young and her children lived in the subject apartment from November 1992 until September 1993. In July 1993, the Department of Health notified the landlord that one of the Young children had been found to have elevated lead levels and violations were cited at the residence. The landlord made repairs and the Department of Health advised, in August 1993, that the violations had been corrected. After the Young family moved out in September 1993, Lorenzo Patterson, Sr. moved in with the Nesmith children. Again, a child was found to have an elevated blood level and violations were cited by the Department of Health.  Thus, despite the initial efforts made by the landlord to remediate the lead hazards after the first family vacated the property, and before the second family moved into the property, lead hazards continued to exist on the property.
The Court of Appeals agreed with Defendant Allstate that there was no basis to conclude that a new lead paint hazard had been introduced between the time when the first family moved out of the residence and the second family moved in.  Even though the claims were during different time frames and involved different plaintiffs, the hazard was the same. Both the Nesmith and Young plaintiffs were injured “from continuous or repeated exposure to the same general conditions” so that the injuries were a single “accidental loss” within the meaning of the policy. Thus, the insurer’s maximum total liability for the Nesmith and Young claims was the policy limit. 
The significance of this decision cannot be overstated as it caps an insurer’s exposure in multiple claims to the policy limit for “each occurrence”, as long as the hazard is the same and the policy contains a non-cumulation clause.
If you have any questions on this decision or any lead paint claims, please do not hesitate to contact Renata Kowalczuk or Kristen B. Degnan.

We are proud to announce that Kenneth A. Krajewski, Renata Kowalczuk, Donald B. Eppers, Jessica J. Burgasser, Andrew D. Merrick and Paul Michael Hasset were selected as Super Lawyers 2014. Inclusion in Super Lawyers is based on a rigorous, multi-step selection process, which includes background and experience as well as peer review recommendation. 

We are also pleased to announce that Kathleen Feroleto has been selected as a Rising Star to the Super Lawyers list for 2014. The selection as a Super Lawyer Rising Star is a great honor, not only because it recognizes outstanding achievement, but also because it is dependent upon the recommendation of peers. Less than 2.5% of lawyers in each state are named Rising Stars.

On June 12, 2014, in the case of Hamilton v. Miller et al., the New York State Court of Appeals addressed whether a plaintiff has to supply medical narrative reports diagnosing every condition or injury alleged in plaintiff’s bill of particulars prior to an independent medical examination. The Court answered in the negative.

In Hamilton, plaintiffs’ attorney alleged over fifty (50) injuries in the Bill of Particulars, including kidney damage, liver damage, eye damage, and neurological damage with related cognitive and behavior problems. The plaintiffs provided no medical evidence regarding most of the injuries and disclosed no medical diagnoses linking their injuries to the lead exposure. The only “evidence” they provided were their diagnoses of elevated lead levels (a lead level of 35 in one case and a lead level of 58 in the other).

Before conducting independent medical examinations under CPLR Section 3121, six defendant landlords moved pursuant to 22 N.Y.C.R.R. 202.17 to compel the plaintiffs to produce any medical reports diagnosing them with the injuries alleged in the Bill of Particulars, and causally relating those injuries to lead exposure. The Supreme Court agreed and ordered the plaintiffs to produce the disclosure to the independent medical examination as it would be fundamentally unfair and contrary to the spirit and intent of 22NYCRR202.17 to force defendants to conduct IMEs in a vacuum. The Fourth Department affirmed.

The New York State Court of Appeals reversed. The Court held that the trial level order imposed unduly burdensome obligations not contemplated by 22 N.Y.C.R.R. 202.17. The Court held the regulation requires only the disclosure of medical reports by medical providers who have previously treated or examined the party seeking recovery, whereas the disclosure sought by the defendants was akin to expert disclosure. For the plaintiff to succeed at trial, the plaintiff will likely need to retain an expert to review the medical records and render the type of causation opinion contemplated by the defendants. However, nothing in the language of 22 N.Y.C.R.R. 202.17 required a plaintiff to make such disclosure at this early stage in litigation, i.e., pre independent medical examination.

The Court of Appeals further indicated that the proper way to deal with issues regarding expert disclosure would be for defendants to ask the individual Judges to amend, or issue, scheduling orders requiring plaintiffs produce expert disclosure at an earlier date. Thus, defense counsel must request the Court order plaintiff to provide expert disclosure prior to the defense expert disclosure deadline, and in advice of 30 days before trial.

Should you have any questions or concerns, please feel free to contact Renata Kowalczuk or Kristen B. Degnan.

Brown & Kelly, LLP again participated in the Lawyers for Learning Bowling Tournament. The Lawyers for Learning program matches volunteers from the legal community to students in grades one through eight who are academically at risk and/or financially disadvantaged in order to improve their academic performance, build self-esteem, provide profession role-modeling and increase self-confidence. Kathleen T. Feroleto is a volunteer tutor with the program. 
The combined efforts of bowlers Renata Kowalczuk, Managing Partner, and Rebecca Koenig, Litigation Paralegal and Administration and Personnel Manager, lead to them winning “The Worst Bowler” trophy for the evening. Dawn Lindner, the firm’s Litigation Medical Coordinator, coordinated our participation and school supplies donations, as well as bowling at the event. The other bowlers were: Kristen B. Degnan and Shea Kolar, Attorneys; Kristie Marshall, Paralegal; Laura Young, Bookkeeper; Teresa Cleary, Legal Assistant; and a few significant others.

Brown & Kelly is pleased to announce that Jessica J. Burgasser has been named a partner to the firm. Jessica joined Brown & Kelly in 2001 and concentrates her practice in insurance defense and coverage litigation, as well as family law matters. She manages the firm’s asbestos caseload and provides experienced legal advice to a wide range of asbestos clients, including manufacturers, property owners, and retailers.

Mentioned Attorney: Jessica J. Burgasser

Renata Kowalczuk and Kristen B. Degnan attended the Federation of New York Insurance Professionals Conference in Fishkill, NY with the Insurance Women of Buffalo. The Federation of New York Insurance Professionals, Inc. was founded in 1943 as a professional organization which provides its members with skills and experiences to help them progress in the risk and insurance fields through educational, networking and philanthropic activities.

On April 10, 2014, Kristen B. Degnan was invited to speak to a senior level class at D’Youville College on Workers Compensation Law. Her presentation was geared toward including the perspectives of both employers and employees.  She also offered many useful tips to the class.  Thank you, Kristen, for your volunteer spirit as I am sure the class also appreciated your insightful tips and the time you offered out of your busy schedule.