LocationsTroy, Latham & Saratoga OfficesLocations

Troy
(Main Office and Mailing Address)

Call(518) 274-5820

View MapThe Jones Building
28 Second Street
Troy, NY

Latham

Call(518) 783-3843

View MapLatham Office
7 Airport Park Boulevard
Latham, NY

Saratoga

Call(518) 584-8886

View MapThe West Building
511 Broadway
Saratoga Springs, NY

Blog

E. Stewart Jones Hacker Murphy, LLP Named Top Rated Upstate Litigators

E. Stewart Jones Hacker Murphy, LLP, founded in 1898, is one of Upstate NY’s oldest and most respected law firms focusing on personal injury, medical malpractice, criminal defense, commercial litigation and eminent domain.

The firm’s senior partner, E. Stewart Jones, has consistently ranked as the number one attorney in the Upstate NY “Super Lawyers” directory.

Other recognition includes:

  • AV Rating by Martindale-Hubbell
  • “Tier One” Ranking by U.S. News & World Report
  • American College of Trial Lawyers
  • Inner Circle of Advocates
  • Multi-million Dollar Advocates Forum
Black Ice, Slip and Fall Claims, and Your Right to Compensation

You have no doubt heard the ironic expression “pure as New York snow,” which conjures up the mental image of ice blackened with soot. Well that’s not what “black ice” is. In fact, black ice is clear as a mountain stream. It looks black because, ominously, it covers blacktop. It is clear because you see right through it to the blacktop below – and that is what makes it dangerous. The term also applies to clear ice that covers sidewalks,  

When and Where You Are Most Likely to Encounter Black Ice

Black ice tends to accumulate in shaded areas when the temperature dips below freezing. Watch for it below trees, tunnels, bridges, and overpasses. The greatest danger occurs when the temperature dips below freezing overnight, then rises to marginally above the freezing point during daylight hours  

This weather pattern (where the temperature hovers around freezing, dipping above and below it, depending whether or not the area is sunlit or shaded) can leave streets and sidewalks free of ice in sunlit areas even as black ice lingers in the shade. The result is a high rate of accidents as pedestrians and motorists get caught by surprise. Be aware of this phenomenon and watch for it.

The Legal Responsibilities of a Property Owner under Premises Liability Law

The owner or occupier of real estate is legally responsible for making sure that his premises are safe for guests by conducting a reasonable inspection of the property for hazards (including black ice) and either repairing or warning of any hazards. This principle applies to private homeowners, businesses open to the public and even the government. Some cities have laws requiring property owners to keep the sidewalks in front of their property free of snow and ice.

Damages

Three general types of damages are available under New York personal injury law (anywhere in the state):

  • Economic damages: Medical bills, lost wages, etc.
  • Non-economic damages: Pain and suffering and other psychological trauma
  • Punitive damages: Awarded only when the defendant’s conduct was outrageous or shocking to the conscience

These three types of damages are not alternatives – they are cumulative.

Workers’ Compensation

If you are seeking damages against your employer for a work-related slip and fall accident, your claim will probably be handled under the New York workers’ compensation system. There is good news and bad news here:

  • The good news is that you can win without proving that your employer was at fault for the accident.
  • The bad news is that you will not be able to collect non-economic damages such as pain and suffering or punitive damages.

Potential Defense: Comparative Fault

Under New York’s comparative fault rule, you are only entitled to damages to the extent that the accident was not your fault. Suppose, for example, that you slip on black ice in a grocery store parking lot that should have been kept free of ice, but you were intoxicated at the time of the accident.

The court might decide, for example, that you were 60 percent at fault and the grocery store was 40 percent at fault. In that case you would be eligible to receive only 40 percent of your damages. Theoretically, you could still receive one percent of your damages even if the accident was 99 percent your fault.

Potential Defense: Statute of Limitations

In New York, the statute of limitations deadline for filing a lawsuit (including a slip and fall lawsuit) is:

  • three years from the date of the accident for a personal injury lawsuit; or
  • two years after the victim’s date of death for a wrongful death lawsuit.

There are limited exceptions to these deadlines. In any case, it is best to get started on your claim well before these deadlines loom.

Liability of Employers

In most cases, insurance will be available to pay your claim (if you slip on black ice in someone’s driveway, for example, you can sue the owner and rely on his homeowner’s insurance policy to pay your claim). Suppose, however, that you were injured when a teenage employee failed to properly remove the ice from the parking lot of a drug store?

It is unlikely that the teenager will carry insurance to pay your claim, or that he will be able to pay the claim out of his own pocket. Are you out of luck? Not likely. You can probably file a claim against the drug store for the negligence of the teenager. Because, in most cases, an employer is responsible for the negligence of its employees.   

I slipped on ice and broke my hip in the parking lot of my fitness gym. My membership contract contains an arbitration clause. How will this affect my claim?

Many consumer contracts contain an arbitration clause in which a private judge decides on your claim. Arbitration simplifies the rules of evidence and procedure, and it is usually a lot faster than courtroom litigation. The biggest disadvantage of arbitration is that, in most cases, you cannot appeal an adverse decision.

Although it is possible, in some cases, to have an arbitration clause invalidated or to appeal an adverse decision, in most cases, you are stuck with arbitration. That is not necessarily a problem, because arbitration tribunals are typically fair. And just because you signed an arbitration clause doesn’t mean you can’t still try to negotiate a private settlement of your claim. You can bring a lawyer with you and we can help you negotiate or, if necessary, arbitrate.

At E. Stewart Jones Hacker Murphy, we fight to win. Our record of victory at trial is so successful that most defendants don’t dare risk a trial – which is precisely why most of our personal injury clients receive out-of-court settlements. If you have been injured in a slip and fall accident, contact us online or call one of our offices in Troy, Albany, Saratoga or Latham. We charge no upfront fees, and you will owe us nothing, ever, until and unless we win your case.

GEICO Faces Deceptive Trade Practices Over Its Use of Biased Medical Opinions

In a 5-0 decision issued on December 14, 2017, the New York State Appellate Division, Third Department, re-instated claims against GEICO Insurance Company for deceptive business practices related to its use of so-called “independent” medical doctors.

The precedent setting case of Brown v. Government Employees Insurance Company (available at http://decisions.courts.state.ny.us/ad3/Decisions/2017/524696.pdf ) now makes clear that insurance companies cannot simply deny claims based upon biased medical reports.  The case alleges that GEICO’s “independent” medical examiners have a strong financial motive to systematically issue reports that deny benefits whenever an argument can be made that the injuries are pre-existing or degenerative in nature.  It is further alleged that GEICO hires only experts who will go along with its scheme to defraud applicants out of benefits. It is alleged that the “independent” experts have a financial incentive to give GEICO what it wants: medical opinions that support denial of benefits.

Ryan M. Finn, a Partner with E. Stewart Jones Hacker Murphy, LLP (https://joneshacker.com/), represents Brown in the action, and stated as follows “this Decision should be a wake-up call for the insurance industry.  Attorneys representing injured victims have been referring to these exams as defense medical exams for a long time and for good reason:  there is nothing independent about the process and many of these doctors make millions of dollars issuing reports to deny lost wages and medical expenses to injured victims who most need the help.”  For more information please contact Ryan Finn, Esq.  at rfinn@joneshacker.com or 518-274-5820.

Your Personal Injury Claim and the Auto Insurance Company’s Bag of Dirty Tricks

personal injury settlement

When you are hurt in an auto accident caused by someone else, you can become very
dependent on an auto insurance company that you may have never even heard of.
That’s OK, don’t they insist on what good neighbors they are? The harsh reality,
however, is that insurance companies are in business to make money – and they
don’t make money paying out claims.

That fact puts you and the insurance company at odds with each other: it is in your
interest to obtain every dime of compensation you are entitled to, and it is in
their interest to pay as little as possible. It is this adversarial relationship, in addition to their extensive experience negotiating claims like yours, that puts you at a disadvantage at the negotiating table.

It is best to simply hire an experienced Albany personal injury lawyer to handle the claim – just so you will know what you are up against. However, the following are some time-tested auto insurance company tricks that you are bound to run into if you elect to negotiate your own claim:  

Gerrymandering the Scope of Coverage

The best way to reduce their payout to zero is to convince you that the policy you are
claiming against (typically the at-fault driver’s policy) doesn’t cover your injuries at all. Sometimes, the insurance company claims that the accident you are involved in is not covered in the policy. They may do this by over-interpreting the language of the policy to try to open up a manufactured loophole in coverage.

Monitoring Your Social Network Accounts

If the amount of your claim is large, do not assume the insurance company won’t put an investigator on your case to monitor your social media account for information they can use to suggest that you are exaggerating your injuries (a photo of you standing and smiling, for example). Beware of friend requests from people you don’t know while your claim is
pending.

“You Don’t Really Need That Operation”

Insurance adjusters are not doctors, and they are not qualified to determine what type of medical treatment you do or do not need.

The Runaround

Insurance companies have endless ways to delay your claim. It can be difficult to contact the person in charge of your case, for example, and they are masters of endless bureaucratic delay. In extreme cases, they might attempt to lull you to sleep with promises that never materialize and cause you to miss the statute of limitations deadline.

Blaming You for the Accident

You can be almost sure that the insurance company is going to try to pull this one at some
point. Under New York personal injury law, if they can pin even 10 percent of the accident on you, their payout is reduced by 10 percent. If they can pin most of the fault on you, you might even end up with a net loss if the other driver sues you.

Asking for a Recorded Statement

The insurance company is likely to ask you to give a recorded statement about the
accident. Don’t give it to them unless your lawyer approves it, because their tricks are endless. If you even answer “fine” to the question “How are you?”, the insurance company may try to use it against you. And that’s just the beginning.

“You Don’t Need to Retain a Lawyer for this Type of Claim”    

When they tell you this, you can be almost certain that the truth is that they are the ones who
don’t need you to retain a lawyer for “this type of claim.” If your lawyer happens to be E. Stewart Jones Hacker Murphy, we can assure you that this is true – the insurance company definitely could do without us. But can you?

Demanding Unfettered Access to Your Medical Records

In a manner of speaking, you could say that insurance adjusters are trained fisherman. For
them, complete access to your medical records is like a lake they can fish in to find an excuse not to honor your claim (by blaming your injury on a pre-existing condition, for example).

“Sign Here Please…”

Don’t sign anything without the advice of your lawyer, even after reading it. Insurance
companies are bureaucracies, and they have all sorts of forms they would just love you to sign. Be especially careful with checks written for less than the full amount of your claim – they are often bait. The fine print on the other side may release the insurance company from any further responsibility for your injuries.

Signing such a check before your condition has stabilized is especially dangerous because you don’t yet know the full value of your claim. If you sign a check today, have surgery tomorrow, and suffer unexpected complications the next day, you wouldn’t want to have signed away your right to further compensation.

“Nickel and Diming” You to Death

The insurance company may take the strategy of defending every inch of ground by
disputing every medical expense – claiming they are only liable for part of one, the other one was “unnecessary,” etc. Each objection may seem small, but they add up quickly.

Shortchanging You on Pain and Suffering Damages

Pain and suffering damages are naturally more difficult to quantify than medical expenses. An insurance company would love to take advantage of this ambiguity to exploit a fact that you might not be aware of: when they apply, pain and suffering damages typically amount to several times the amount of medical expenses. Your pain matters, and don’t let anyone tell you anything different.

Take Decisive Action Today

You have been injured by a careless driver. That fact cannot be undone. Don’t add to the
tragedy, however, by allowing a stingy insurance company to smooth-talk you out of the personal injury compensation you deserve. And don’t try to handle your claim without a lawyer. Don’t worry, you can afford us. We charge nothing unless we win, and our fee will not come due until your money actually arrives.

At E. Stewart Jones Hacker Murphy, you can expect to be treated with respect, empathy, and consummate professionalism. If you have been injured in an accident that may have been someone else’s fault,contact us today to schedule a free initial consultation by phone, at our office in Albany, or even at your home or in the hospital.

Local Attorneys Recognized as “Super Lawyers”

Twelve attorneys from the Capital Region law firm E. Stewart Jones Hacker Murphy LLP were recently selected as 2018 Upstate New York “Super Lawyers” and “Rising Stars” honorees.

E. Stewart Jones, Jr., Founding Partner, was ranked number one in Upstate New York. Managing Partner, James E. Hacker was ranked in the Top 10. John F. Harwick, Partner, was ranked within the Top 25 in the Hudson Valley for Personal Injury.

Partner James C. Knox and Associates David I. Iversen and Brett T. Williams were also recognized as “Rising Stars” by Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations, and each candidate is evaluated on 12 indicators of peer recognition and professional achievement.

The following E. Stewart Jones Hacker Murphy LLP lawyers, who practice in Upstate New York, were selected for inclusion in the 2018 New York Super Lawyers list:

SITTING left to right:
James E. Hacker – Personal Injury: Plaintiff
E. Stewart Jones, Jr. – Personal Injury / Medical Malpractice: Plaintiff
David R. Murphy – Property Tax Litigation and Disputes

STANDING left to right:
Ryan M. Finn – Employment Litigation: Plaintiff
John F. Harwick – Personal Injury: Plaintiff
Michael W. Kessler – Personal Injury / Medical Malpractice: Plaintiff
Thomas J. Higgs – Business Litigation
Meghan R. Keenholts – Personal Injury: Plaintiff
James C. Knox – Criminal Defense
Patrick L. Seely, Jr. – Real Estate Litigation
David I. Iversen – Personal Injury: Plaintiff
Brett T. Williams – Real Estate Litigation

The firm has offices in Albany, Latham, Saratoga and Troy.

Victim of Police Hit-and-Run and Cover-up Files Notice of Claim Against Montgomery County and Sheriff’s Department

sheriff badge hit and run

 

For Immediate Release: Oct. 22, 2018

Victim of Police Hit-and-Run and Cover-up Files Notice of Claim Against Montgomery County and Sheriff’s Department

AMSTERDAM, N.Y. — The teenage victim of a hit-and-run accident involving a Montgomery County Sheriff’s Department investigator and of the subsequent attempt to cover up the crime has filed a notice of claim that he intends to file a federal lawsuit.

Julian Louscher, 18, was skateboarding on Northern Boulevard in the Town of Amsterdam on the evening of July 11, 2018, when he was struck from behind by a personal car driven by Sheriff’s Department Investigator Roberto Gracia. Mr. Louscher was thrown across the hood of the car, shattering the windshield.  He suffered head, shoulder, arm and other injuries.

Investigator Gracia left the scene of the personal injury accident without calling an ambulance or notifying police, according to Mr. Louscher’s Notice of Claim. Another Sheriff’s Deputy allegedly learned of the hit-and-run and, with Investigator Gracia, conspired to conceal the crime.

The following day the Sheriff’s Department was alerted when it received a call from a third-party asking that it check on the well-being of a person who may have been hit by a car the night before. A subsequent investigation revealed the involvement of the two law enforcement officers.

The law firm E. Stewart Jones Hacker Murphy is representing Mr. Louscher. The case will be filed in U.S. District Court for the Northern District of New York.

The Montgomery County Sheriff’s Department announced in August that Investigator Gracia and Deputy Theresa Pingitore had been arrested. Investigator Gracia is charged with leaving the scene of a personal injury accident, a misdemeanor; tampering with physical evidence, a Class E felony; and official misconduct, a Class A misdemeanor, for failing to report the accident. Deputy Pingitore is charged with official misconduct. The Schenectady County District Attorney has been named the special prosecutor in the case. The criminal investigation is continuing.

“Mr. Louscher suffered personal injuries and violations of his civil rights when he was struck by a car driven by a law enforcement officer who then conspired with another law enforcement officer to cover up the crime,” said attorney John F. Harwick, a partner in E. Stewart Jones Hacker Murphy. “Two individuals sworn to uphold the law not only broke the law but engaged in conduct designed to thwart an investigation and impede justice.”

The lawsuit will allege that Investigator Gracia inflicted personal injuries on Mr. Louscher and violated his civil rights and, with Deputy Pingitore, attempted to cover up the crime in the course of their employment with the Sheriff’s Department.  The lawsuit will also allege that the Sheriff’s Department and the County failed to properly hire, train and supervise the two employees.

For Further Information:

John F. Harwick

Stewart Jones Hacker Murphy
(518) 274-5820
jharwick@joneshacker.com
Bill Richmond
Behan Communications Inc.
(518) 792-3856
bill.richmond@behancom.com

Proposed New Campus Sexual Misconduct Guidelines Would Strengthen Protections for the Accused

sexual misconduct guidelines

 
Campus sexual misconduct has long been a concern of university administrators, social activists, and politicians alike. This concern sparked a movement to strengthen the protection of victims of campus sexual misconduct. The zenith of this movement was probably reached in 2011 when the federal government’s “Dear Colleague” letter was delivered to over 4,600 schools.

The “Dear Colleague” letter advised colleges and universities of strengthened sexual misconduct standards that they would have to meet to remain eligible for federal aid. Although it was hailed by many as a landmark policy decision for the protection of victims of sexual misconduct, within a few years, many people had concluded that the pendulum had swung too far the other way. That men were being deprived of the right to defend themselves against sexual misconduct allegations.

Title IX: Both a Sword and a Shield

Title IX of the Civil RIghts Act of 1964 reads as follows:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Originally understood as a protection against overt gender discrimination, Title IX has come to be understood as a means to protect college women from sexual assault. Title IX has been asserted as the legal basis for the “Dear Colleague” letter, which is thought to have triggered a wave of expulsions of college men found guilty by campus tribunals applying lax standards of due process against defendants.

Defendants have been fighting back: Since 2011, over 150 federal lawsuits have been filed by male college students who were expelled for sexual assault. Many of these lawsuits have been successful. These students have been using Title IX on their own behalf, arguing that the school exhibited gender bias against them because they were male.   

Change Is in the Air…

Despite successes in federal courts, defendants continue to complain that campus tribunals do not offer them a fair chance to defend themselves against sexual misconduct accusations. The current administration has responded by proposing the modification of the existing higher education sexual misconduct policy in a manner that strengthens protections for the defendant.

In particular, Education Secretary, Betsy DeVos (after having already made some significant changes), is preparing new rules that would not require Congressional approval to go into effect. Strictly speaking, these rules are not mandatory. Instead, the federal government would condition its educational funding on a school’s compliance with them. The following features stand out:

  • The definition of sexual harassment would be modified to equivalence with the definition currently used by the U.S. Supreme Court: “…unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.” Under the previous administration’s definition, sexual harassment did not have to be pervasive or severe; in fact, it theoretically could be triggered by a single comment of a sexual nature directed towards the complainant.
  • The new rules allow schools to choose which of two possible standards of proof they will use: “preponderance of evidence” (which means something like “more likely than not”), or “clear and convincing evidence.” “Dear Colleague” rules require schools to use the “preponderance of evidence” standard.

Although both standards make it easier to prove a sexual misconduct allegation than the far more stringent “beyond a reasonable doubt” standard used in criminal proceedings, the “clear and convincing evidence” standard is a significantly higher bar to jump over.  

  • Schools will be able to decide for themselves whether to allow an appeals process (the appeals process was encouraged by the previous administration). Schools that now allow appeals allow either party to appeal the result of a sexual misconduct investigation.
  • University jurisdiction over sexual misconduct cases will be limited to misconduct that was alleged to have occurred on campus. It will not include off-campus housing or anywhere else outside of campus boundaries. Local police and prosecutors will exercise exclusive jurisdiction to pursue off-campus complaints.
  • Schools will be responsible for investigating sexual misconduct only to the extent that a  complaint has been filed or they have “actual knowledge” of the misconduct. Schools have been complaining that, up until now, they have been held liable for failure to investigate sexual assault claims they didn’t even know about.
  • Both parties (the accused and the accuser) would be entitled to all of the evidence gathered by the other side, regardless of whether the other side intends to actually use it.
  • Mediation between the two parties will continue to be an option, as it has been since 2017 (mediation was forbidden prior to 2017).
  • Both parties are allowed to question each other during disciplinary proceedings. This practice was formerly discouraged if not outright forbidden.

Regardless of whether these regulations end up going into effect as they are currently written, it remains a virtual certainty that the current administration will restore at least some of the protections for the accused that had been lost.

We Are Ready to Fight for You

At E. Stewart Jones Hacker Murphy, fighting for justice for the wrongfully accused is what we went to law school for. There is nothing more satisfying to us than to watch justice prevail due to our efforts, and we absolutely will not allow any of our clients to be bullied by the educational system.  

The following is a list of only some of the local area colleges and universities whose students we have or are ready to serve:

  • Rensselaer Polytechnic Institute (RPI)
  • Siena College
  • Skidmore College
  • College of Saint Rose
  • Sage Colleges
  • Russell Sage College
  • Union College
  • Albany Law School
  • State University of New York at Albany
  • State University of New York at Binghamton
  • State University of New York at Plattsburgh
  • State University of New York at Potsdam
  • State University of New York at Oneonta
  • Clarkson University
  • Colgate University
  • Columbia-Greene Community College
  • Cornell University
  • Bard College
  • Vassar College
  • Syracuse University
  • Hartwick College
  • Utica College
  • Hamilton College
  • New York Law School

Contact Us Today

If you have been accused of campus sexual harassment or sexual assault, it’s not a good idea to wait until a tribuna has already been scheduled before you seek legal help. Contact us online, or call one of our offices (in Albany, Saratoga, Troy, and Latham) to schedule a free case consultation so we can discuss your options.