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Rebecca Monte to Speak at Erie Institute of Law Seminar
April 2008 —
Rebecca Monte, a member
of the firm, will be a speaker at the May 1, 2008 Erie Institute of Law,
Erie County Bar Association CLE presentation of "Elder Law Practice Post
DRA." Ms. Monte will be part of a panel of presenters who will
instruct and answer questions on this timely topic.
The seminar will be held at Shanghai Red's in Buffalo,
New York.
Art Herdzik
Selected to Speak on Ethics and Civility
April 2008 —
Arthur A. Herdzik,
was selected by the New York State Bar Association to speak at a
continuing legal education program. The program,
"Introductory
Strategies on Ethics and Civility in Everyday Lawyering" was presented
Friday, April 4, 2008 at the Ramada Hotel and Conference Center in
Amherst, New York. Art together with our newest associate Katy
M. Hedges also prepared course material.
Art also participated in
a panel discussion on ethics and civility with other program faculty
which included, Supreme Court Judge John M. Curran, and Attorney Daniel
Drake of the Appellate Division, Fourth Department Attorney Grievance
Office.
Arthur
Herdzik Wins Summary Judgment Motion on Behalf of The Town of
Concord
February 2008 — In Rothfuss v.
Town of Concord, the plaintiff filed suit against the Town of
Concord for injuries she sustained in a motor vehicle accident which
occurred after passing the left side of a snowplow owned by the Town of
Concord.
The plaintiff was driving behind a
Town of Concord snowplow eastbound on Middle Road in the Town of
Concord. The driver of the Town of Concord snowplow slowed down the
vehicle in order to turn around, having reached the end of his route.
The plaintiff, in an effort to get by the plow, crossed a double yellow
line into the oncoming lane and was struck head-on by another vehicle.
The plaintiff sued the Town of Concord claiming that the plow was
negligent in stopping in its lane and forcing her to pull blindly into
oncoming traffic, where she was struck.
In a motion argued by
Arthur Herdzik, it
was established that the Town of Concord, pursuant to VTL 1103(b), could
only be held liable if its driver acted with recklessness. The
Honorable Paula Feroleto found that no question of fact existed that the
snowplow driver did not act with recklessness and granted summary
judgment for the Town of Concord, dismissing the plaintiff's complaint.
If you have any questions regarding
this decision, do not hesitate to contact Mr. Herdzik at (716) 852-3600
or by e-mail at aherdzik@cheluslaw.com. Mr. Herdzik was assisted with respect to
the drafting of the motion papers by
Patrick D. Slade, Esq.
Chelus
Elected to Board of Directors of Western New York Trial Lawyers
Association
February 2008 — Michael M. Chelus, an associate with
the law firm of Chelus, Herdzik, Speyer & Monte, P.C., has been elected
to the Board of Directors of the Western New York Trial Lawyers
Association. Mr. Chelus was elected by the members of the association
conducted at its annual dinner at Westwood Country Club on January 18,
2008. Mr. Chelus will serve a two year term on the Board of Directors.
Thomas
Kawalec Elected to Board of Directors of the Defense Trial Lawyers
Association of Western New York
February 2008 — Thomas P. Kawalec, a partner with the
law firm of Chelus, Herdzik, Speyer & Monte, P.C., has been elected to
the Board of Directors of the Defense Trial Lawyers Association of
Western New York at the Board's February meeting.
February 2008 — Chelus, Herdzik, Speyer & Monte, P.C.,
today announces that Katy Hedges and Patrick Slade have joined the firm
as associates. They will be working with the other members of the firm
in handling the firm's litigation files as well as other general
practice matters. In addition to working with the firm at its downtown
office at 1000 Main Court Building, 438 Main Street, at Lafayette
Square, Katy and Patrick will also be practicing at the firm's branch
office at 2448 Union Road in Cheektowaga.
A resident of Williamsville, New York, Ms. Hedges
received her juris doctor in 2005 from the State University of New York
at Buffalo. In addition to her J.D., Katy also holds a Bachelor of
Health Science from the University of Western Ontario, Canada.
Mr. Slade is a resident of Amherst, New York and
received his juris doctor in 2007 from the State University of New York
at Buffalo. In addition to his J.D., Patrick also holds a B.A. in
Psychology and English from the State University of New York at Buffalo.
Ms. Hedges and Mr. Slade now join with the other
associates of Chelus, Herdzik, Speyer & Monte, P.C. in serving the legal
needs of the Western New York Community.
Speyer and
Kawalec Prevail in Appellate Division Decision in Claim
Against Homeowner
February
2008 – In an appeal from a lower court decision in dismissing
plaintiff's complaint as against a homeowner, the Appellate Division
affirmed in determining that an action which is the result of the
plaintiff's voluntary activities on the property may not be the basis
for finding liability as against the landowner.
The
plaintiff had commenced an action seeking damages for injuries sustained
when he fell from a stepladder owned by the defendant while installing a
television antennae on the defendant's residence. The plaintiff was
living in the defendant's house at the time and had agreed to perform
various tasks around the house including the installation of the
antennae. The record established that the defendant had, at one point,
held the ladder and guided the plaintiff's foot onto the ladder during
one of the descents.
The Court
determined, however, that the defendant had no duty to warn the
plaintiff of the ladder's alleged defects. The defendant had
established that she believed the ladder was not defective and that she
frequently used it without any problem. Although the plaintiff had
submitted an expert affidavit outlining alleged defects, it failed to
describe how those defects caused the accident.
As the
defendant had established she had no actual or constructive notice of
any such defect, she met her burden, as a matter of law, that she had no
duty to warn the plaintiff of same. As such, the Court affirmed the
trial court's granting of summary judgment dismissing the plaintiff's
cause of action in its entirety.
Thomas
Speyer to Teach UB
February 2008 — Thomas
Speyer has again been asked to teach at the University at Buffalo as an
adjunct professor for the trial technique program this fall.
Chelus Elected To Board of Directors of Western New York Trial
Lawyers Association
February
2008
–
Michael
M. Chelus has been elected to the Board of Directors of the Western
New York Trial Lawyers Association. Mr. Chelus was elected by the
members of the association conducted at its annual dinner at the
Westwood Country Club on January 18, 2008. Mr. Chelus will serve a two
year term on the Board of Directors.
Tom
Kawalec Prevails in a Declaratory Judgment Action at the Appellate
Division, Fourth Judicial Department
January 2008
–
In the case of Allstate vs.
Swanson, our office commenced an action on behalf of the plaintiff
seeking a declaration that Allstate has no duty to defend or indemnify
Christopher Swanson in the underlying personal injury action brought
against them by the parents of a minor. In the underlying incident, Mr.
Swanson shot an arrow from a compound bow at the minor striking him in
the eye. As a result of the incident, Mr. Swanson plead guilty to an
assault in the first degree. Thereafter, our office prepared a
disclaimer of coverage on behalf of Allstate relying on a policy
exclusion for bodily injury as a result of intentional or criminal
acts. The Supreme Court, Allegany County, granted Allstate's
cross-motion for summary judgment declaring that Allstate has no
obligation to defend or indemnify Mr. Swanson in the underlying personal
injury action.
The Appellate
Division, Fourth Judicial Department, unanimously affirmed stating that
Allstate submitted the requisite evidence establishing, as a matter of
law, that the injury in question falls within the policy exclusion as it
resulted from Mr. Swanson's criminal act, for which he was convicted,
and that the injury could reasonably be expected to result from the
aforementioned criminal act.
As such,
Allstate has no duty to defend or indemnify Mr. Swanson in the
underlying personal injury action.
If you have
any questions regarding this opinion, you can certainly contact Tom
Kawalec at (716) 852-3600 or by e-mail at
tkawalec@cheluslaw.com.
Mr. Kawalec was assisted with respect to the underlying motion and
appeal by Scott R.
Orndoff, Esq.
Michael F. Chelus and
Associate
Win Summary Judgment in Case Prior to Trial
January 2008 –
A wrongful death action was commenced in the Supreme Court of Erie
County by the decedent's estate. The decedent Howard Wallace had a
Ph.D. in Biology. Kevin Adkins and SLB Enterprises had picked up three
small utility cargo trailers from our client, Forest River, Inc., the
manufacturer of the cargo trailers in Indiana. They had delivered the
trailers to Agricultural Belt Service in Western New York. After the
trailers were dropped off, Kevin Adkins in driving his pick-up truck
with the empty flat bed trailer went through an intersection killing
Howard Wallace.
On behalf of Forest
River, after completion of discovery, we made a motion for summary
judgment on the legal theory that Kevin Adkins and SLB Enterprises were
independent contractors. As a result, Forest River is not responsible
for the negligent operation of the truck by Kevin Adkins.
The plaintiff alleged
that Forest River arranged for the delivery of its merchandise. Adkins
was working in the furtherance of Forest River's business by virtue of
his earlier transport of the Forest River cargo trailers. There is
testimony that Adkins at the time of the accident may have been carrying
a check conveying payment by Agricultural Belt Service to Forest River
for the cargo trailers.
Justice NeMoyer stated
that Forest River sustained its initial burden on the motion of
demonstrating its entitlement to judgment as a matter of law on the
issue of liability and the plaintiff failed to raise a triable question
of fact. The determination of whether a worker is an employee or
independent contractor is ordinarily for the trier of fact.
However, where no
conflicting evidence exists or the facts are compellingly clear, the
Court may determine such issue is a matter of law. Nothing on this
record indicates that Forest River had any ownership interest in the
pick-up truck or flat bed trailer. Forest River exercised no
supervision, direction, or control over Adkins delivery timetable and
work.
The Court determined
as a matter of law that, in relation to Forest River, both Adkins and
SLB were independent contractors for whose torts Forest River bears no
legal responsibility.
Thomas Speyer Prevails in Appellate Division on New
York State Labor Law §240(1) and §241(6)
December 2007
–
In an appeal from a lower court decision dismissing plaintiff's causes of
action grounded in Labor Law §240(1) and §241(6), Mr. Speyer recently
obtained a unanimous affirmation from the Appellate Division, Fourth
Department. The plaintiff had fallen approximately nine feet to the ground
from a plank over an unfinished basement in a house under construction. At
the time he fell, plaintiff was attempting to collect an extension cord that
was caught on an object in the basement below him. As the examinations
before trial clearly established that a ladder was "readily available", the
Court determined that the plaintiff's "normal and logical response" should
have been to go and get the ladder. Given that the examinations before
trial revealed that proper safety equipment was available for the plaintiff
and he chose to instead expose himself to the height related risk without
utilizing same, the Court determined that the plaintiff's failure to use the
available ladder was the sole proximate cause of his injuries requiring
summary judgment dismissing the Labor Law §240(1) and 241(6) causes of
action.
Thomas Speyer Obtains No Cause Verdict in Accident
Involving NFTA Bus
December 2007
–
Thomas Speyer recently obtained a no cause jury verdict in the case of White v. NFTA. In that case, an NFTA bus was involved in an accident
with a pickup truck. Mr. Speyer represented the common carrier (NFTA) in a
lawsuit arising out of an accident on a traffic circle in downtown Buffalo.
In a trial before assigned Trial Justice Glownia,
the jury returned a verdict of no cause of action as against the NFTA and
imposed 100 percent responsibility as against the driver of the pickup
truck.
Thomas
Speyer Obtains No Cause Verdict In Wrongful Death Action
December 2007 – assisted by
Kristen Degnan, Thomas
Speyer recently obtained a no cause jury verdict in the case of Mazur v.
Town of Evans. In that case, an individual drove through a barrier at
the end of a posted dead end street and flipped his car into the nearby
creek, resulting in his drowning death. The decedent's estate sued the Town
of Evans, the municipality where the accident occurred, for failure to
maintain a proper barrier at the end of the dead end street and improper
signage. After a two week trial including the testimony of two
transportation engineers, a pathologist, an economist, as well as numerous
police officers and civilian witnesses, the jury was sent to deliberate.
The jury
returned with a no cause verdict, finding that the Town of
Evans
was
not negligent.
PHILIPPS ELECTED AS
PRESIDENT OF LOCAL BAR ASSOCIATION
September 10,
2007 – John N. Philipps, Jr., partner, has been elected to the position of
President of the Lockport Bar Association for the 2007-2008 term. Mr.
Philipps had previously served as Vice President of the organization.
ART HERDZIK SELECTED AS
"NEW
YORK SUPER LAWYER"
September 2007
— Law
and Politics, publisher of New York Super Lawyers Magazine, has announced
that upon completion of a peer review process, Art Herdzik is one of 15
lawyers included within its 2007 list of "New York Super Lawyers-Upstate
Edition" for "personal injury defense- general ". More on the peer selection
process can be learned by visiting
www.superlawyers.com.
August 2007—Thomas
Speyer has again been asked to teach at the University at Buffalo as an
adjunct professor for the trial technique program this fall.
In addition, he has been named a finalist in the
Who's Who in Law in Buffalo relative to defense litigation.
HERDZIK
IS
SUCCESSFUL ON APPEAL
May 2007—
IIn Piazza v. Spectra Flooring, et
al, the plaintiff filed suit for injuries allegedly sustained in a
fall. At the time of the incident, the plaintiff was employed by the
Buffalo Municipal Housing Authority as a cleaner. The defense successfully
argued at both the trial court and Appellate level that the plaintiff was
not engaged in activity within the context of construction. The Fourth
Department affirmed the trial court's decision that the plaintiff could not
present a viable §241(6) claim.
If you
have any questions about the scope of Labor Law §241(6) or would like to see
a copy of this office's brief, please contact
Arthur Herdzik.
PHILIPPS WINS SUMMARY JUDGMENT MOTION ON BEHALF OF DEFENDANT
LANDOWNER
May
2007— In Grenier v. Buffalo Motorsport, et al., the plaintiff filed suit for
injuries she sustained as a result of a motor vehicle accident. The plaintiff
was a passenger in a vehicle driven by her husband which ran into a parked
truck/trailer in front of the defendant’s property. Apparently, the driver of
the truck/trailer was given permission to park on the side of the road in front
of the landowner’s property by the landowner’s estranged husband.
Ultimately, the plaintiff was forced to admit that the named defendant property
owner did not create the allegedly defective condition (the negligently parked
truck/trailer) nor did she have any actual or constructive knowledge of this
condition. As a result, the court granted the landowner’s motion for summary
judgment in its entirety.
MONTE
SELECTED TO SPEAK AT ERIE INSTITUTE OF LAW CLE PROGRAM
May
2007—Member Rebecca E. Monte has been selected by the Erie Institute of Law
to speak at a continuing legal education program. The program is entitled
“Court Certified Article 81 Training”. The seminar will be held on
Thursday, May 17, 2007. Ms. Monte will speak on the rights of a person in
need of a guardian and the rights of an AIP.
PHILIPPS SUCCESSFUL IN HAVING LABOR LAW CLAIM DISMISSED AGAINST
DEFENDANT LANDOWNER
April 2007—In Johnson
et al. v. Mullen et al., the plaintiff worked for a subcontractor
constructing a pole barn addition onto the defendant’s property. The
plaintiff alleges to have fallen in a rut on the jobsite.
Among other causes of
action, the plaintiff alleged a violation of Labor Law §241(6). In support
of this claim, the plaintiff alleged a violation of code section 12 NYCRR
§23-1.7. This code section states in part that hazardous openings into
which a person may step of fall, shall be guarded by a cover or safety
railing. While this regulation, on its face, appears to be applicable, I
was able to find case law supporting the proposition that for this code
section to be applicable, the hazardous opening must be of significant depth
and size. By the plaintiff’s own testimony, the rut in which he claims to
have fallen was not significant in depth or size as a matter of law. As a
result, the court dismissed the plaintiff’s Labor Law §241(6) cause of
action.
Please feel
free to contact us if you would
like to discuss the case or review copies of the supporting case law or
moving papers.
April 2007 —
Chelus, Herdzik, Speyer & Monte, P.C., today announces that
Christopher R. Poole has joined the firm as an associate. He will be working
with the other members of the firm in handling the firm's litigation
files and general practice matters. In addition to working with the firm at
its downtown office at 1000 Main Court Building, 438 Main Street, at
Lafayette Square, Chris will also be practicing at the firm's branch office
at 2448 Union Road in Cheektowaga.
A resident
of Buffalo, New York, Chris received his juris doctorate in 2005 from the
State University of New York at Buffalo. In addition to his
J.D., Chris also holds a B.S. in Biochemistry from Syracuse University.
HERDZIK
SELECTED TO SPEAK
AT NYSBA CLE PROGRAM
April 2007 – Senior member
Arthur A. Herdzik has been selected by the New York State Bar Association to
speak at a continuing legal education program. The program "Ethics and
Civility in Litigation: Introductory Lessons for the 21st Century
Litigators" will be presented Friday, April 27, 2007. Art will speak
on issues of ethics and civility. He will also participate in a panel
discussion on ethics and civility with other program faculty.
Art has in the past participated as an organizer, speaker
and cover book contributor in several State and County Bar Association
continuing professional education programs. He resides in the Village
of Lancaster where he is the Village Attorney and Treasurer of the Lancaster
Lions Club.
CHELUS
APPOINTED
ADJUNCT PROFESSOR
AT BRYANT & STRATTON COLLEGE
April 2007 – Michael M.
Chelus has been appointed as an Adjunct Professor at Bryant & Stratton
College. Mr. Chelus will be teaching various courses as part of Bryant &
Stratton College's paralegal studies curriculum. Mr. Chelus will be
teaching a course in torts and civil litigation during the college's summer
2007 semester.
If you have any questions
regarding this matter or if you would like to contact Mr. Chelus, his e-mail
address is
mmchelus@cheluslaw.com.
December 2006 — Three of the attorneys in our firm,
Michael F. Chelus, Thomas P. Kawalec and Michael M. Chelus have authored two
chapters of the New York State Bar Association's newly published Second
Edition of Insurance Law Practice, 2006. The two volume publication
provides a completely updated and expanded examination of all areas of
insurance law practice. It has been written and edited by more than 50
leading practitioners in the field.
Michael F. Chelus and his son, Michael M. Chelus
co-authored Chapter 26 which is entitled "Exceeding the No-Fault Threshold:
Serious Injury". It provides the history of and analyzes all of the
categories defining serious injury in the New York Law.
Michael F. Chelus and Thomas P. Kawalec authored
Chapter 29 entitled "Fire and Property Insurance". It analyzes statutory
provisions, coverage issues, the burden of proof and any defenses concerning
a fire loss claim.
CHELUS WINS NO CAUSE
AGAINST FORD MOTOR CREDIT COMPANY
December 2006 – In
McEllhenney v. Ford Motor Credit Company, et al.,
the infant plaintiff sued for injuries sustained as a result of a motor
vehicle accident that occurred on April 7, 2000. At the time of the
incident, the infant plaintiff was a backseat passenger in a vehicle
operated by his mother that was traveling down Route 20 in the Hamburg. As
the plaintiff's mother neared the intersection of Route 20 and Rogers Road,
another driver in a Ford pick-up truck pulled out of a parking lot and
collided with the vehicle in which the infant was traveling.
The infant plaintiff brought suit against the other driver
and against Ford Motor Credit Company, the lease holder. Over six (6) years
later, Ford Motor Credit Company and the other driver brought suit against
the infant plaintiff's mother, just over a month prior to the date of the
negligence trial.
The case was tried before the Honorable Kevin M. Dillon on
December 5 and6, 2006. This matter was tried by
Michael M. Chelus, who
represented the infant plaintiff's mother. On December 6, the jury returned
a verdict of no cause of action in favor of the infant plaintiff's mother.
If you have any questions regarding this matter or if you
would like to discuss this case, do not hesitate to contact Mr. Chelus whose
e-mail address is
mmchelus@cheluslaw.com.
CHMIEL PREVAILS ON MOTION FOR
SUMMARY JUDGMENT DISMISSING A THIRD-PARTY ACTION
November 2006
In
the matter of Hill-Lefebvre v. Dollar Thrifty Automotive Group, et al.,
the plaintiff, a passenger in the vehicle of our client, Heather Ramsdell, was
injured when their vehicle was struck by a vehicle owned by the defendant. That
defendant, in turn, filed a third-party action against Ms. Ramsdell alleging
that she was at least partially at fault in causing the motor vehicle accident.
In a
motion that was written and argued by Michael J. Chmiel, it was argued that no
evidence whatsoever existed demonstrating any degree of negligence on the part
of Ms. Ramsdell. Based upon these arguments, as well as the evidence obtained
during discovery, the Honorable Patrick J. NeMoyer granted the motion for
summary judgment, thus dismissing the third-party action against Ms. Ramsdell.
If
you have any questions regarding this decision, do not hesitate to contact Mr.
Chmiel, whose email address is
mchmiel@cheluslaw.com
SPEYER AND
ASSOCIATE PREVAIL
ON A MOTION FOR SUMMARY JUDGMENT
ON A PREMISES LIABILITY CLAIM
November 2006
In
Rose v. Rite Aid, et al, the plaintiff suffered serious injuries
due to a slip and fall due to an alleged icy condition.
Thomas Speyer and an
associate drafted a motion on behalf of the defendants seeking to dismiss the
plaintiff’s case. Judge Burns granted the motion, finding that the defendant
owed no duty to the plaintiff due to the location of the accident and due to the
fact we were a tenant on the property. The court also agreed with the defendant
that there was a lack of notice concerning the icy condition.
This motion was
handled by Thomas J. Speyer. If you would like a copy of the Court’s decision,
or have any questions regarding this case, please do not hesitate to contact us.
TARGIA AND
CHELUS PREVAIL IN FEDERAL COURT ON SUMMARY JUDGMENT MOTION.
October 2006
In Virginia Johnson v. The Bon-Ton
Department Stores, Inc., the plaintiff was allegedly injured when she
tripped and fell while exiting an elevator at the Eastern Hills Mall location of
the Bon-Ton Department Store. The plaintiff filed suit in New York State Supreme
Court alleging that a defective condition existed in the elevator and that the
defendant was therefore negligent.
Strategically, we immediately
removed the matter to the United States District Court for the Western District
of New York on the basis of diversity. In defense of the case, we argued that
there was absolutely no evidence of either a defect in the subject elevator or
notice of a defect to the defendant. Our position was reinforced by the records
of the elevator maintenance company with whom the defendant had an exclusive
maintenance contract.
Magistrate Judge Hugh B. Scott
(United States District Court Western District of New York) dismissed the case
against our client holding that the plaintiff failed to present even a scintilla
of evidence to establish a defect in the subject elevator.
The motion was handled by
Anthony B. Targia and Michael M. Chelus. If you would like a copy of the
Court's decision, do not hesitate to contact us.
Philipps Elected as
Officer
of Local Bar Association
September 2006 John N. Philipps, Jr., Esq.,
partner, has been elected to the position of Vice President of the Lockport Bar
Association. Mr. Philipps had previously served as Treasurer.
Kawalec and
Associate are
Successful in Dismissing the Plaintiff's Case Against Allstate Insurance
Company.
September 2006 In Peinkofer v. Allstate
Insurance Company, the plaintiff alleged that Allstate Insurance Company and
its agent failed to fully apprise him of his rights as to the limits of SUM
coverage and breached its duties as set forth in Insurance Law §3420(f) and
various Insurance Regulations.
In defense of the case, we argued that no private
cause of action exists under Insurance Law §3420(f) and that Allstate and its
agent discharged their duties to the plaintiff.
Judge Donna M. Siwek (Erie County Supreme Court)
dismissed the case against Allstate and its agent. The Court held that the
agent discharged its duty to the plaintiff. In dismissing the case, the Court
also held that Insurance Law §3420(f) does not create a private cause of action
against Allstate Insurance Company. As such, Judge Siwek denied the plaintiff’s
motion for summary judgment and granted the defendants’ motion for summary
judgment.
The motion was argued by Tom Kawalec and an
associate assisted with the preparation of the motion papers. If you’d like a copy
of the Court’s decision, don’t hesitate to contact us.
Kawalec
and Orndoff Prevail in the
Declaratory Judgment Action.
August 2006 In Allstate v. Swanson, our firm
represented Allstate Insurance Company. In this case, Justice Thomas Brown,
Supreme Court, Allegany County, granted Allstate's motion for summary judgment
finding that Allstate Insurance Company had no obligation to defend and
indemnify its insured due to a criminal act exclusion contained in the policy.
The case involved the insured discharging an arrow from a
compound hunting bow thereby injuring an individual, who was seated nearby. The
plaintiff eventually commenced an action against the insured for personal
injuries arising out of this incident. Justice Brown held that the insured's
criminal actions caused the injury to the plaintiff, thereby triggering the
policy's "criminal act" exclusion.
Mr. Kawalec argued the motion for summary judgment and both
he and Mr. Orndoff prepared the papers on behalf of Allstate insurance company.
If you have any questions regarding this decision, certainly don’t hesitate to
contact either Mr. Kawalec or Mr. Orndoff.
PHILIPPS,
TARGIA AND
KAWALEC BECOME OFFICERS/SHAREHOLDERS AT
CHELUS, HERDZIK, SPEYER, MONTE & PAJAK, P.C.
Buffalo, NY – July 1,
2006 -One of Western New York’s oldest law firms is adding three new
officers/shareholders. John N. Philipps, Jr., Anthony B. Targia and Thomas P.
Kawalec have been appointed as shareholders and officers of Chelus, Herdzik,
Speyer, Monte & Pajak, P.C. Established in 1896, Chelus, Herdzik, Speyer, Monte
& Pajak, P.C. is a full service law firm which practices in areas such as civil
litigation, appellate practice, commercial litigation, commercial and
residential real estate, family law, criminal law, wills and estates as well as
business and elder law.
John N. Philipps, Jr.
resides in Wheatfield, NY with his wife and daughter. Mr. Philipps was hired as
an associate in 1997 after receiving his Juris Doctor degree, cum laude, from
Thomas M. Cooley Law School in Lansing, Michigan. Mr. Philipps graduated in the
top 4% of his graduating class and served as an associate on the Thomas M.
Cooley Law Review. Mr. Philipps was admitted to practice in the State of
Michigan in 1996 and in New York State in 1997 and is also admitted in the U.S.
District Court for the Western District of New York, as well as U.S. Bankruptcy
Court. Mr. Philipps is also treasurer of the Lockport Bar Association and is a
member of the Western New York Trial Lawyers Association, New York State Bar
Association, Erie and Niagara County Bar Associations as well as the Defense
Trial Lawyers Association of Western New York. Mr. Philipps is a frequent
lecturer at continuing legal education seminars on civil litigation issues. Mr.
Philipps’ areas of practice include insurance defense litigation, personal
injury, and commercial litigation.
Anthony B. Targia resides
in Cheektowaga, NY. Mr. Targia was hired as an associate in 1998 after
receiving his Juris Doctor degree from the University of Dayton School of Law in
1997. In 1998, Mr. Targia was admitted to practice in New York State Supreme
Court, U.S. District Court Western District of New York and the U.S. Bankruptcy
Court. Mr. Targia represents the firm as a member of the Cheektowaga Chamber of
Commerce. Mr. Targia is also currently serving as the Educational Director for
The Charles S. Desmond Inns of Court and is a member of the Western New York
Trial Lawyers Association, New York State Bar Association, Erie County Bar
Association as well as the Defense Trial Lawyers Association of Western New
York. Mr. Targia’s areas of practice include insurance defense litigation,
personal injury, corporate law and commercial litigation.
Thomas P. Kawalec, who
resides in Amherst, NY, was hired by the firm in 1998 as an associate after
receiving his Juris Doctor degree from the State University of New York at
Buffalo School of Law. In 1998, he received the Robert
J. Connelly Award for Excellence in Trial Advocacy. Mr. Kawalec is
admitted to practice in New York State Supreme Court, U.S. District Court for
the Western District of New York and the U.S. Bankruptcy Court. In 2005, Mr.
Kawalec was admitted to practice before the United States Supreme Court. Mr.
Kawalec is currently serving as Treasurer for The Charles S. Desmond Inns of
Court. He is a member of the American Bar Association, Western New York Trial
Lawyers Association, New York State Bar Association, Advocate's Club and the
Defense Trial Lawyers Association of Western New York. He is also a member of
the Negligence, Criminal Law and Employment Law
Committees of the Erie County Bar Association. Mr. Kawalec has
co-authored "Fire Insurance and Property Insurance"
in the Insurance Law Practice treatise for New York State Bar Association and
has participated in a number of presentations relating to civil litigation.
Mr. Kawalec's areas of practice include insurance defense, personal injury
litigation, medical malpractice litigation, criminal law, workers' compensation,
estate planning and commercial litigation. Mr. Kawalec, a fluent speaker of
Polish, has also been assisting the local Polish community with their legal
needs for nearly a decade.
Over the last 110 years,
Chelus, Herdzik, Speyer, Monte & Pajak, P.C. has seen three of its firm members
become Supreme Court Justices; one Appellate Division presiding Justice, as well
as an Appellate Division Justice. Current members of the firm serve as Village
Attorney for the Village of Lancaster and Fire District Attorney in Orchard Park
and Colden.
KAWALEC PREVAILS IN A
MOTION FOR SUMMARY JUDGMENT ON
BEHALF OF ALLSTATE INSURANCE COMPANY
June 2006 --
In Allstate v. Kraft, we argued that Allstate Insurance
Company does not have an obligation to defend or indemnify a defendant in a
personal injury action who was using a motor vehicle without the owner's
permission at the time of an accident. In deciding in favor of Allstate
Insurance Company, Niagara County Supreme Court Justice Kloch held that Allstate
Insurance Company does not have an obligation to defend or indemnify the driver
in the underlying personal injury action where the driver pled guilty to
unauthorized use of a motor vehicle.
CHMIEL WINS SUMMARY JUDGMENT
March 2006 --
Michael J. Chmiel has recently
won a summary judgment motion before the Honorable Richard C. Kloch, Sr.,
Supreme Court Justice in Sconiers v. Kelly Barber et. al. He
successfully argued that our client, Kelly Barber, was not liable as a matter of
law.
In this case, our client was involved in a chain reaction collision on the South
Grand Island Bridge. After cresting the top of the bridge, the insured brought
the vehicle to a stop behind the plaintiff, who was stopped in response to a
disabled vehicle. Immediately thereafter, our insured's vehicle was impacted
from behind by the co-defendant. This initial impact drove our client's vehicle
into the vehicle containing the plaintiff.
Chmiel cited the case of Betts v. Marecki, 247 AD 2nd 916, 668
N.Y.S. 2nd (4th Dept.), which had a similar fact pattern.
Betts was a case successfully defended by our own Gregory V. Pajak before
the Appellate Division, 4th Department.
TARGIA SUCCESSFUL AT TRIAL
February 2006 – In the
case of Bellaus v. Johnson and Graham, a Summary Jury Trial was held
before the Honorable Norman E. Joslin J.S.C. in Erie County. Negligence having
been conceded, the jury was left to decide the questions of serious injury and
damages. Julius Horvath D.C. testified on behalf of the plaintiff who had
alleged neck and back injuries as well as a shoulder injury for which the
plaintiff had undergone arthroscopic surgery. The jury returned a verdict for
the defense indicating the plaintiff failed to satisfy the serious injury
threshold.
KAWALEC
AND ASSOCIATE ARE SUCCESSFUL IN
OBTAINING A PROTECTIVE ORDER IN A DECLARATORY JUDGMENT ACTION.
In Allstate v. Swanson, the Allegany County
Supreme Court concluded that a defendant in a declaratory judgment action is not
entitled to a deposition of a representative of the plaintiff Allstate Insurance
Company as well as access to its entire file. Citing the arguments made on
behalf of Allstate Insurance Company, Judge Brown granted Allstate's Motion for
a Protective Order and denied the defendant's Motion to Compel the disclosure of
the claims file and depositions of Allstate's representatives. If you would like
a copy of the decision, do not hesitate to contact us.
 
KAWALEC
AND ORNDOFF PREVAIL IN A
SUMMARY JUDGMENT ACTION DISMISSING AN ACTION ARISING OUT OF A SLIP AND FALL
ACCIDENT ON PROPERTY OWNED BY A LOCAL MUNICIPALITY.
In Dumais vs. Town of Cambria, Judge Vincent
Doyle dismissed the plaintiff's personal injury claims arising from a slip and
fall incident at the Town of Cambria Town Hall complex. The Court agreed with
the defendant that clearing sidewalks leading to a closed Town Hall is a
governmental function. After considering numerous factors including the amount
of snowfall; the amount of time that passed between the end of the snowstorm and
the accident; and the prioritization of snow removal tasks, the Court agreed
with the defendant and dismissed the plaintiff's claims as there was no evidence
that the defendant was negligent in its exercise of its duty to the plaintiff
under the circumstances. Scott Orndoff assisted in the preparation of the
Motion for Summary Judgment. If you would like a copy of the decision, please
feel free to contact us.
TOM KAWALEC WINS
SUMMARYJUDGMENT ON BEHALF OF INSURANCE CARRIER IN A DECLARATORY JUDGMENT ACTION.
In Hermitage Ins. Co. v. Weierhouser, Supreme
Court Justice Thomas P. Brown granted summary judgment on behalf of Hermitage
Insurance Company in a declaratory judgment action stemming from a snowmobile
accident. The underlying accident involved an accident that took place off of
the trails maintained by the Allegany County Federation of Snowmobilers, Inc.,
Hermitage's insured. The snowmobile accident took place in the midst of a race
on private property and away from the trails between Kenneth C. Frazier and
Ronald J. Weierheiser. Mr. Weierheiser alleged that Hermitage Insurance Company
should defend and indemnify Kenneth C. Frazier in the underlying personal injury
lawsuit. However, agreeing with Hermitage's position, Judge Brown declared that
Hermitage is not required to defend or indemnify Kenneth C. Frazier in the
underlying action as Kenneth C. Frazier was not an "insured" under the Hermitage
policy insuring the Allegany County Federation of Snowmobilers. The Court
declared that the policy did not provide coverage for members of the Allegany
County Federation of Snowmobilers that were not involved in Club activities or
performing activities on behalf of the Allegany County Federation of
Snowmobilers at the time that the accident occurred.
TARGIA
SUCCESSFUL AT TRIAL
December 2005 – In the case of Texeira v. Crowell,
the liability portion of a bifurcated trial was held before the Honorable Larry
Himelein J.S.C. in Chautauqua County. The jury returned a verdict finding the
plaintiff solely responsible for the subject auto accident.
A judgment for costs was entered against the
plaintiff.
KAWALEC SUCCESSFUL AT THE COURT OF APPEALS
Thomas Kawalec has recently
won a case in the Court of Appeals, New York State's highest Court. In
Drasgow v. New York Central Mutual Insurance Company, He successfully argued
that a no-fault arbitrator's decision should not be vacated providing that the
arbitrator had a rational basis for the decision. The Court of Appeals reversed
the holding of the Appellate Division, Fourth Judicial Department, and confirmed
the underlying arbitration award. The decision gives the arbitrator's
conclusion considerable weight as long as a rational basis for the decision is
shown.
This is yet another example of
our firm's perseverance and commitment to our clients.
PHILIPPS
ELECTED
September 2005 –
John N. Philipps, Jr., Esq,
senior litigation associate, has been elected to the position of
Treasurer of the Lockport Bar Association. Mr. Philipps had previously
served as secretary of the Lockport Bar Association.
KAWALEC NAMED AS CO-TREASURER TO THE LOCAL CHAPTER OF THE
AMERICAN INNS OF COURT
Thomas Kawalec has been
recently appointed as a co-treasurer of the Western New York Chapter of the
American Inns of Court. The American Inns of Court is an amalgam of judges,
lawyers, law professors and law students that meets approximately once a month
to hold programs and discussions on the matters of ethics, skills and
professionalism. Looking for a new way to help lawyers and judges rise to
higher levels of excellence, professionalism and ethical awareness, American
Inns of Court helps legal professionals to become more effective advocates and
counselors with keener ethical awareness. Members learn alongside with the most
experienced judges and attorneys in their community.
The local Western New York
Chapter holds monthly meetings which are attended by local legal professionals,
including judges and law students. For more information with respect to the
American Inns of Court, please click here.
innsofcourt.org
PHILIPPS
SPEAKS AT SEMINAR
John N. Philipps, Jr., Esq,
senior litigation associate, spoke at a
Continuing Education Seminar entitled "Taking and Defending Effective
Depositions in New York" on April 21, 2005.
- ARTHUR
A. HERDZIK
-
DEMONSTRATES TRIAL METHODS
Partner Art Herdzik
was selected to demonstrate trial methods in a program presented by the
American Board of Trial Advocates. The program entitled “Masters in Trial” is a
continuing legal education program and was presented on December 3, 2004 at
the Rochester Institute of Technology Inn and Conference Center, Henrietta, NY.
The program featured a mock trial before a panel of jurors. Mr. Herdzik
served as a
member of the defense team.
The American Board of Trial
Advocates is a national association of trial attorneys dedicated to foster
improvement in the ethical and technical standards of practice in the field of
litigation.
PHILIPPS SPEAKS AT DISCOVERY SKILLS
SEMINAR
October 2004 – Senior litigation associate,
John W. Philipps, Jr., Esq.,
spoke at a Continuing Legal Education Seminar entitled "Discovery
Skills for Legal Staff in New York." Mr. Philipps lectured on subjects
including objections, protection orders, motions, and sanctions.
CHELUS, et al . . . WELCOMES CHELUS!
The following article appeared in the The Citizen (an Orchard Park, New
York newspaper) on June 12, 2004.
"Law Runs in the family for O. Park father &
son
by Christopher Schobert
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Attorney Michael Chelus Sr., an Orchard Park resident has been a noted and
trusted legal mind in Western New York for years.
Now, there is a new addition to Chelus, Herdzik, Speyer, Monte and Pajak, P.C.,
and ironically, his name is also Michael Chelus.
Chelus, the son of Michael Chelus Sr., recently joined the firm. 'I'll be
working here as an attorney,' Chelus Jr. said.
'I think it's a very good thing.' Chelus Sr. said. 'It's a very honorable
profession.'
After graduating from Pennsylvania State University with a degree in management
in 2000, Chelus Jr. attended law school at the University at Buffalo. He
will be officially admitted at a ceremony on June 24.
THE LAW is something that had been on the mind of the younger Chelus for
years.
'I grew up learning about the law from him my entire life,' Chelus said of his
father. 'The thought had always been there.'
Chelus Jr. said his experience at Penn State was a memorable one. 'I really
loved it there,' he said. But the opportunity to come back to Buffalo for
law school was too good to pass up.
'It was nice to come back home,' Chelus Jr. said, who began law school directly
after finishing his undergraduate work.
While a full-time student at UB, he also worked as a law clerk at his father's
firm, starting in the summer 2001.
AFTER TAKING the bar exam in February, Chelus Jr. recently learned that
he had passed. At the time, another attorney was needed at his father's
firm, making the timing perfect for him to step right in.
'Everything just kind of worked,' Chelus Jr. said.
Working as an attorney is a tradition in the Chelus family.
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'Michael is really the third generation in the law,' Chelus Sr. said who also
attended UB Law School, as did his uncle before him.
However, Chelus Sr. said that he and his wife, Dolores, never tried to direct
Michael to the law, instead allowing him to decide for himself.
'IT WAS more a matter of trying to make sure they got a good education,'
he said.
Chelus Jr. said that working with his father is an exciting and pleasing
experience.
'It's kind of hard to put into words,' he said.
Orchard Park is in the blood of Michael Chelus Jr. He grew up here, and
graduated from Orchard Park High School in 1996. His family members have
been longtime Orchard Park residents.
He said he is thrilled to be living and working so close to where he spent his
youth. It is clear that Orchard Park holds a special place in his heart.
'IT'S THE only place that really is home to me,' Chelus Jr. said.
He credits his family for its love and support in helping him achieve his goals
and accomplish his many successes.
His mother known to most as 'Dee,' is a teacher at St. Bernadette's School on
South Abbott Road. His sister, Elizabeth, recently graduated from Nazareth
College in Rochester and is following in her mother's footsteps as a teacher,
working in the Clarence school system.
The recent addition of Michael Chelus Jr. to Chelus, Herdzik, Speyer, Monte and
Pajak is a sign of both his efforts, and also of his family's love and caring.
The father and son duo represent a true Orchard Park success story."
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5th Oldest Law Firm in Western New York
Chelus, Herdzik, Speyer, Monte & Pajak, P.C. appeared in
the May 14, 2004 edition of Business First. The local publication
celebrated Western New York's oldest businesses and Chelus, Herdzik, Speyer,
Monte & Pajak, P.C. was listed not only as the 5th oldest law firm in the area,
but also as the 65th oldest business in Western New York.
Established in 1896 under the name of Petrie, Timerman & Pardee the firm
was located at the Dun Building in Buffalo, New York and developed as a small
group of trial lawyers. As the 20th century came on board with automobiles
and WNY's heavy industry, insurance began playing a major role. Large
insurance companies started referring cases to the firm because of expertise in
the local courts.
The firm grew and as the tradition continued, the name of the firm was changed
periodically to reflect the continuing legacy of its lawyers. It became known as
Williams & Williams then Williams & Moule and later Moule, Miles & Forehead.
This was followed by other names such as Miles, Cochrane, Grosse, Rossetti &
Chelus, P.C. on through our present name. While the firm has been known by
several different names, it has not changed in its endeavor to provide high quality,
caring legal services.
HERDZIK SUCCESSFUL AT APPELLATE DIVISION
As reported in the January 30, 2004 Buffalo News, Arthur A. Herdzik prevailed in an appeal before the Appellate Division, Fourth Department. In the case of Blair v. The Village of Akron, we defended the Village of Akron in an action involving a multiple snowmobile accident which resulted in two fatalities and a serious injury. The claimants contended that as a result of the negligence of the Village of Akron, the snowmobilers were unable to anticipate and negotiate a narrow footbridge upon the trail they were using. The Appellate Division unanimously reversed the lower court which refused to dismiss the action against the Village of Akron. The Appellate Division agreed with Art Herdzik that the recreational immunity statute enacted by the New York State Legislature applied to the Village as a property owner. A review of the case can be found in our February 2004 Summing Up.
HERDZIK RECOGNIZED
 Arthur A. Herdzik, has been recognized by Martindale-Hubbell with its AV rating. The Martindale-Hubbell Law Directory facilitates a peer review process that rates lawyers. Ratings reflect the confidential opinion of members of the bar and judiciary. Martindale-Hubbell ratings fall into two categories - legal ability and general ethical standards. Legal ability ratings are: C - good to high; B - high to very high; and A - very high to preeminent.
There is one general ethical standard rating - V or very high. An attorney will not receive a legal ability rating unless he or she has been endorsed for a V. Only when both ratings are confirmed will an attorney receive a rating. With Art receiving an AV rating, our firm is also rated as an AV law firm. We have now joined a select group of attorneys who, through peer review facilitated by Martindale-Hubbell, have been recognized for their legal expertise and professional stature.
PHILIPPS SPEAKS AT SEMINAR
The New York State Bar Association conducted a statewide seminar entitled "Insurance Coverage Issues ? With a Focus on Personal Lines."
John Philipps, Jr., Esq.
of our office was on the faculty and spoke about non-owned vehicles,
specifically temporary substitute automobiles, and the whole ongoing saga
regarding rental vehicles.
MICHAEL F. CHELUS WON A SIGNIFICANT
APPEAL IN THE FOURTH DEPARTMENT
Michael F. Chelus
represented Lehigh Construction Corp. in the defense of a wrongful death action and 2 personal injury claims which resulted from an explosion which took place at FMC Corp. on August 18, 1995. The Appellate Division unanimously reversed the lower court's denial of summary judgment in favor of Lehigh Construction. The Appellate Division stated that Lehigh Construction (the general contractor) performed work according to plans and specifications prepared by others
and owed no duty to the plaintiff Raymond Jackson. The action against Lehigh Construction was therefore dismissed by the Appellate Division.
MICHAEL F. CHELUS's RECENT VICTORY
Michael F. Chelus
defended the village of Medina in a multimillion dollar lawsuit. In Trader v. Niagara Mohawk, Canal Festivals and Village of Medina 741 NYS2d 362, the appellate division unanimously reversed the trial court and dismissed the action against the Village of Medina. In the wrongful death action, the decedent was electrocuted when he removed a flag from the top of a fun house. Although the village by resolution authorized the canal festival and provided security, the appellate division agreed that the village did not own, control, direct, supervise or have notice of a dangerous condition.
PHILIPPS' SUMMARY JUDGMENT TRIFECTA
John N. Philipps, Jr.
won three successive summary judgment motions in less than thirty days.
The first suit involved a worker who fell off the roof of a homeowner's house during its construction. Judge Fahey agreed that the suit against the homeowner should be dismissed as the home owner was not negligent. The judge also found that New York's Labor Law did not apply as the evidence submitted in support fo the motion showed that the homeowner client not supervise and control the work.
In the second suit, the plaintiff brough suit against our client, a municipality, for injury sustained in a single car accident which occurred on a snowy road. Judge Joslin agreed with the defendant municipality, that the plaintiff could not maintain their suit because there was no prior written notice of the alleged defect, and dismissed the case.
In the third suit, the Honorable Frank A. Sedita granted the defendants motion for summary judgment dismissing a suit brought against our client, a snow plow contractor, and others for injuries alleged to have been sustained by a slip/fall on ice. Attorney Scott Kroll's work was instrumental in the success of the motion.
MICHAEL F. CHELUS IS INCLUDED IN 2002/2003 WHOS WHO
President and CEO of the law firm of Chelus, Herdzik, Speyer, Monte & Pajak,
P.C.,
Michael F. Chelus
was listed in Whos Who In Insurance and Risk Management 2002/2003.
Michael Chelus is a well respected and long time attorney in the Western New York Community with a career that began in the United States Army where he graduated from the United States Army Engineer Officer Candidate Regiment, Fort Belvoir, Virginia, Honor Review Board. He was commissioned as a Second Lieutenant Combat Engineer, September 12, 1969, was assigned as Officer in Charge of Courts and Boards, Fort Polk, Louisiana in 1970, and served in the Republic of Vietnam in Central Highlands with the 35th Engineer Group HG Cam Ranh Bay as Trial Counsel and Defense Counsel in Court Martial and Board proceedings before joining the firm of Chelus, Herdzik, Speyer, Monte & Pajak, P.C. (then known as Miles, Cochrane, Grosse & Rossetti).
Mr. Chelus is a graduate of the State University of New York at Buffalo School of Law class of 1968. He has served as counsel for the Orchard Park Fire District since 1971 which service continues today. In addition to co-authoring Chapter 27, Fire and Property Insurance in the New York Bar Associations Insurance Law Practice, Michael Chelus has also authored Disaster Awaits: Workers Compensation Liens vs. No-Fault First Party Benefits, (New York State Bar Journal, Vol. 62, December 1990), and Liquor Liability of Fire Companies and Municipalities, (Fire District Affairs Bulletin, Vol. 20, No. 19, No. 10, March 1993).In addition to his memberships in the various legal associations,
Mr. Chelus is an active member of the Western New York Community through his membership and involvement in The Buffalo-Niagara Parnership (Chamber of Commerce - Council of Small Business Enterprises, Vanguard Roundtable, Buffalo Development Council, Public Relations Committee); The St. Thomas Moore Guild, and the American Legion to name a few. Michael Chelus is also a frequent lecturer and speaker on various legal subjects at regional professional, social, philanthropic, and charitable organizations.
MONTE DELIVERS SEMINAR
Rebecca Monte spoke at the Alterra Clare Bridge of Orchard Park. Mrs. Monte
gave an informative presentation regarding the importance of consulting with an
elder care attorney.
CHELUS AND KAWALEC AUTHOR SECTION IN THE
NYSBA "INSURANCE LAW PRACTICE, 2001"
Michael F. Chelus, president and CEO of the law firm of Chelus, Herdzik, Speyer, Monte & Pajak, P.C., and associate
Thomas P. Kawalec.
co-authored Chapter 27 in the New York Bar Association's Insurance Law Practice,
which is a highly respected and relied upon reference manual for New York State
attorneys. The chapter entitled "Fire and Property Insurance" details the
mandatory provisions for fire insurance policies in New York State according to
New York Insurance Law. This publication is available through the New York State Bar Association.
The upcoming 2nd edition of the New York Bar Association's Insurance Law
Practice, due out in 2006, will feature an updated Chapter co-authored by
Michael F. Chelus and Thomas P. Kawalec as well as a chapter co-authored by
Michael F. Chelus and Michael M. Chelus, detailing the no-fault law and
serious injury threshold.
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