Appellate Division, 3rd Department Case Summaries: November 9, 2010

Appellate Division, Third Department

Ineffective AssistanceAppealed from County Court, Chemung CountyMatthew C. Hug for the appellant; Kevin M. O'Shea, assistant district attorney, for the respondentSciscente v. Lill Overhead Doors Inc.Sarah Spain Holt of E. Stewart Jones PLLC for the appellant; Robert S. Stockton of Stockton, Barber, Mead LLP for the respondentThe garage, on a busy route into Newcastle, came under attack at 2.55am today. Police were called to the garage after receiving a report that two men had forced their way in.Background: The appeal is from an order that granted the defendant's motion for summary judgment dismissing the complaint. The plaintiff, a mechanic, was injured at work when a garage door struck him on the head in December 2005. The parties dispute whether the door was pulled down accidentally onto the plaintiff by a coworker or whether it descended on its own. The defendant had installed several garage doors for the plaintiff's employer in 1993 and repaired them as needed when called by the employer. The most recent repair the defendant performed prior to the accident was in June 2003. Finding the defendant owed the plaintiff no duty of care, the supreme court granted the motion. The plaintiff appealed.With a blue tarp covering the hole in our wall, we were anxious to find a contractor as soon as possible. Our first move was to call a company that has a lot of trucks with signs touting its years in business and the scope of its capabilities. Yes, we were assured, we will be right out to give you an estimate and we will not cut corners. We're a family company and we feel your pain. Great line of patter, but the problem was nobody ever showed up. So much for ads on trucks.One was slim build and the other was medium build.The second estimator was the complete opposite. He took careful measurements, photographed the damage and surrounding areas, explained how the building codes had changed since the wall was first built, and said the first order of business was to get an electrician to fix the damaged wiring. About four days later we received a 23 page estimate, with drawings, photos, material lists, estimated labor costs, provision for repainting, etc.People v. AndrewsThe insurance company had given us a list of approved contractors, but we were a little reluctant to use the list since we weren't convinced the insurance people always approve top quality contractors. Nevertheless, we called two of the recommended companies.Witnesses are asked to contact Northumbria Police on 03456 043 043 ext 69191.102774CAPTION(S):

Sarah Spain Holt of E. Stewart Jones PLLC for the appellant; Robert S. Stockton of Stockton, Barber, Mead LLP for the respondent