CourtHouse

Chmiel Wins Appeal, Affirming Dismissal of Case


March 2016 — In the matter of Roger Feller and Sherri Feller vs. Earth Leasing, LLC and Alliance Contracting, LLC, we represented the defendants in a case involving a construction accident. Although the accident took place in 2006, the plaintiffs did not commence the lawsuit against our clients until 2010; nearly fourteen months after the applicable statute of limitations had expired.

We immediately brought a motion to dismiss based upon the plaintiffs’ failure to commence in a timely fashion. The plaintiffs, in turn, replied by alleging that Roger Feller was “insane” such that he would be justified to an extension of the statute of limitations pursuant to CPLR §208.

Justice John Michalski ordered a hearing to follow so that this issue could be decided. We were able to introduce evidence that Feller, during the time that he was allegedly “insane”, was actually conversing with his attorneys on a regular basis. We also demonstrated that he was able to meet with and discuss his medical treatment with several physicians during the applicable time period. During the eventual hearing, Feller’s expert neuropsychologist was forced to admit on cross-examination that Roger Feller was capable of “answering anyone’s questions”, including that of an attorney.

In order to meet this standard, it was the plaintiff’s burden to demonstrate that his “insanity” rendered him “unable to protect his legal rights because of an overall inability to function in society”. Justice Michalski found that the plaintiffs failed to meet this burden and dismissed the case.

On March 18, 2016, the Appellate Division, Fourth Department, unanimously affirmed Justice Michalski’s decision in a memorandum opinion. Specifically, the Appellate Division found that Justice Michalski’s determination was “well supported in the record”.

Michael J. Chmiel conducted the hearing, and eventually wrote and argued the appeal. If you have any questions regarding this case, do not hesitate to contact him at mchmiel@cheluslaw.com.

Call us at 716-852-3600

SUBURBAN OFFICE

2448 Union Road

Cheektowaga, NY 14227

716-608-7664

Map & Directions

MAIN BUFFALO OFFICE

Main Court Building at Lafayette Square

438 Main Street, Tenth Floor

Buffalo NY 14202

Map & Directions

CONTACT US

716-852-3600

800-724-8519

fax: 716-852-0038

E-mail: mailbox@cheluslaw.com

Insurance Company Services

Appellate Advocacy

Environmental & Toxic Tort

Personal Injury Defense

Workers' Compensation

See More

Business Services

Collection of Receivables

Corporate Reorganization

Mergers and Acquisitions

Zoning and Land Use

See More

Personal/Family Services

Construction Accidents

Elder Law & Medicaid Planning

Federal and New York State

     Workers' Compensation Claims

Real Estate

See More

Municipal Law

Firematics Law Concerning Fire

    and Emergency Services

Tax Assessment Matters

Representation in Litigation

See More

The attorneys at Chelus, Herdzik, Speyer & Monte, P.C. represent clients throughout the Greater Western New York region encompassing the counties of Erie, Niagara, Genesee, Cattaraugus, Chautauqua and Monroe Counties.

Offices in Buffalo and Cheektowaga make it convenient for clients in Amherst, the Tonawandas, Grand Island, Kenmore, Williamsville, Clarence, East Aurora, Hamburg, Orchard Park, West Seneca, Niagara Falls, Lewiston, Lancaster, and Lockport.

Network Solutions Secure Site Seal

Legal Disclaimer

Attorney Advertising. All Content Copyright of Chelus, Herdzik, Speyer & Monte, P.C. 2012