The doctrine of Assumption of Risk is often used by the courts to dismiss lawsuits where the injured party had knowledge of the injury causing defect and an appreciation of the resulting risk. Nassau County Supreme Court Justice Thomas Feinman was faced with this issue recently in the case of Berman v. Rolling River Associates Ltd. On March 17, 2008, the judge denied the defendant camp's motion for summary judgment dismissing a child's lawsuit to recover for the injuries suffered at a gymnastics class when she fell and broke her elbow. The claim was that the 7-year-old stepped directly on an apparatus that rolled over causing her to lose her balance and fall. The child's parent argued that there were no instructors at the apparatus, while defendants argued they provided adequate supervision. Defendants argued assumption of the risk in that the child consented to engage in the activity, thus consented to the inherent risk. The judge disagreed, stating it could not be determined that this child, participating in a gymnastics class for the first time, appreciated the risks associated with the apparatus. It noted plaintiff did not appreciate the risk given her age and level of experience, thus the doctrine of assumption of risk did not provide a bar to recovery. http://www.foleygriffin.com/

Serious Injury 2008

What is a serious injury under the law? www.foleygriffin.com

We often struggle with the question as to whether our clients have suffered a "serious physical injury" under the law. The answer to the questions is a mix of legal and medical principles. The law sets forth nine (9) categories of "serious physical injury." If a client meets this threshold of "physical injury" the claim will survive. This issue is addressed on a daily basis. Recently, the second department upheld the plaintiff's claim in Altreche v. Gilmar Masonary Corp. The Court in Altreche found that the plaintiff did in fact suffer a "serious physical injury" under Insurance Law section 5102(d). The Court stated: "The opinion of the plaintiff's treating physician was based both on his contemporaneous and his most recent examinations of the plaintiff, as well as upon his review of, inter alia, the plaintiff's cervical and lumbar magnetic resonance imaging reports, which showed, among other things, disc bulges at C2 through C5 and a disc herniation at L5-S1. He opined that the plaintiff's spinal injuries and range of motion limitations observed were permanent, and were causally related to the subject accident." www.foleygriffin.com

A Brooklyn Judge's Interpretation of the Sidewalk Law of NYC

Recently, Justice Herbert Kramer of Supreme Court, Kings County, held in the case of MOORE v. NEWPORT ASSOCIATES L.P., that an elevation differential between sidewalk slabs of more than one half inch, caused by a tree root, was actionable and not too small under the new Sidewalk Law of 2003 [Local Law number 49, New York City Code § 7-210]. Furthermore, that the new law placed a duty on a New York City property owner to repair or replace a sidewalk flag that causes a trip hazard because of a grade differential of one half inch or more. http://www.foleygriffin.com/.

Once again, New York Courts have shown the difficulties in proving the vicious propensities of a dog. In Suchdev v. Singh, decided: November 24, 2006, Justice Weiss, a Supreme Court Judge in Queens County dismissed the plaintiff’s complaint. The Judge reasoned as follows:

This is an action to recover for personal injuries plaintiff sustained on December 19, 2004 when she was bitten by the defendant's, MENAKSHI SINGH's (hereinafter Mona), dog at the premises owned by her father, defendant MOHAN SINGH. The premises are a single family home in which MOHAN SINGH, his wife and two of his sons occupy the first floor and his son Arun (hereinafter Ronnie), his daughter Mona and Ronnie's friend Newang occupy the second floor apartment. In her complaint plaintiff alleges that on December 19, 2004 she was visiting her friend Ronnie, that his sister Mona, Ronnie and two friends were gathered in the livingroom. While Mona was feeding snacks to the dog, the dog turned and bit plaintiff in the face.

Although not separately numbered, the complaint alleges two causes of action. The first sounding in strict liability based upon the allegation that the defendants knew or should have known that the dog had vicious propensities; and the second sounding in common-law negligence.

In Collier v. Zambito, 1 NY3d 444 [2004], the Court of Appeals reaffirmed the long standing rule that the owner of a domestic animal, a dog in this case, will be held strictly liable for an injury caused by the dog when the owner either knows or should have known of the dog's vicious propensities and the injury is a result of those propensities (see also Hosmer v. Carney, 228 NY 73, 75[1920]). The court went on to say that an animal can be found to have vicious propensities even when its behavior would not be "considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm . . . albeit only when such proclivity results in the injury giving rise to the lawsuit" (Collier v. Zambito, 1 NY3d at 447). "Vicious propensities include the 'propensity to do any act that might endanger the safety of the persons and property of others in a given situation'" (Collier v. Zambito, 1 NY3d at 447 quoting Dickson v. McCoy, 39 NY 400, 403 [1868]). The determination of whether a dog has vicious propensities and whether the owner knows of such propensities involves the consideration of proof of such factors as the dog's prior similar acts, the tendency to growl, bare its teeth, snap at or jump up on people, the fact that the dog was kept for protection or as a guard dog, and whether the dog was restrained and how it was restrained (Collier v. Zambito, supra; Parente v. Chavez, 17 AD3d 648 [2005]).

Although the First and Second Departments have allowed recovery for injury caused by domestic animals based on common-law negligence even in the absence of any proof of the owner's knowledge of prior vicious propensities (see, Colarusso v. Dunne, 286 AD2d 37 [2001]), the Court of Appeals in Barde v. Jahnke, 6 NY3d 592 [2006] has recently held that recovery for injuries caused by domestic animals may proceed only under strict liability standards and not on a common-law negligence theory (see also Morse v. Colombo, 31 AD3d 916 [2006]; Mindel ex rel. Mindel v. Jones, 16 AD3d 857 [2005], lv denied 5 NY3d 705 [2005]). Accordingly, the plaintiff's complaint, insofar as it asserts a cause of action for common-law negligence, is dismissed.

The defendants have established, prima facie, their entitlement to summary judgment by submitting the deposition testimony of the parties which demonstrated that the dog did not have vicious propensities or "a proclivity to act in a way that puts others at risk of harm", and that the defendants lacked any knowledge of any such "proclivities" (see Longstreet v. Peltz, ___ AD3d ___, 821 NYS2d 899 [2006]; Cohen v. Kretzschmar, 30 AD3d 555 [2006]; see also Malpezi v. Ryan, supra). In this regard, defendants submitted, inter alia, the plaintiff's deposition where she stated that she had been to Mona's apartment on several occasions, that although the dog was usually in Mona's room, on two occasions the dog was in the room with her, that she was not afraid of the dog and the dog had never attacked, or growled or bit her before. Where as here the defendants have established their entitlement to summary judgment, the burden shifts to the plaintiff to come forward with competent evidence to raise a triable issue of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zukerman v. City of New York, 49 NY2d 557, 562 [1980]). This the plaintiff failed to do.

In opposition, the plaintiff asserts that the dog had a history of aggressive behavior and that the defendants knew of such behavior and failed to disclose it. In support of this claim plaintiff submitted the veterinary clinic's medical records of the dog which contains an entry dated November 17, 2004" bleeding ear tip," " bite wound from October 31, 2004". Plaintiff argues that based upon this evidence alone, the motion should be denied, because the defendant's deposition testimony that the dog had a "cut" on the ear not a bite, is in conflict with the note which raises questions of credibility as to the defendants' knowledge of the dog's vicious propensities. Plaintiff's argument is without merit. Whether the dog had a cut or a bite on his ear, however, is insufficient to raise a question of fact as to whether the dog has vicious propensities, where as here there is no evidence of the medical basis for the entry and no evidence that the dog was involved in a fight in which it was the aggressor (see Marshall v. Darmody-Latham, 11 AD3d 992 [2004]).

Under the circumstances, the defendants' motion to dismiss the complaint is granted.

Supreme CourtJusticeWeiss

Recent Infant Compromise Decision involving lead paint

A recent case in Kings County discussed the power of the Court to reject the proposed settlement of a lawsuit involving a minor. In Joseph v. Drenis Realty LLC, 3819/00, decided: November 14, 2006, the Court found as follows: This application for an infant compromise order seeks approval for a proposed settlement of Mylic Olivier's claim for damages in a lead-paint poisoning case, instituted by his mother, Nadese Joseph, on his and her own behalf. For reasons that will appear, the application is denied, with leave to renew with new papers that address the concerns expressed.

The papers initially filed on this application consisted of a proposed Infant Compromise Order, an Attorneys' (sic) Affirmation of Paul Vesnaver; a Parent Affidavit of Nadese Joseph, the infant's mother; a letter dated August 23, 2005 from Structured Financial Associates to Plaintiffs' counsel, describing a structured settlement; a Physician's Affirmation of Leon Charash, M.D. dated September 14, 2005, accompanied by various medical records and reports; and a letter dated September 19, 2005 from Defendants' counsel to Plaintiffs' counsel, confirming a settlement at $200,000.00, "represent[ing] the balance of the insurance coverage limits available to the defendants for this matter."

Plaintiff Mylic Olivier was born on September 9, 1996, and was nine years old when the application was filed in October 2005. According to the Physician's Affirmation, Mylic "sustained the following injuries as a result of reported exposure to lead poisoning" at his residence at 38 St. Pauls Place, Apt. #3I, Brooklyn:

"organic brain damage; severe developmentally impaired with respect to social, behavioral, cognitive, motor and adaptive development; quantitatively and qualitatively limited interaction and play skills with his peers; does not demonstrate the understanding of complex directive; poor ability to process information, requiring continuous cues to engage in specified tasks and/or task completion; severe impairment in attention span and concentration."

Based upon his review and a most recent examination of Mylic on September 14, 2005, Dr. Charash "found that [he] ha[d] received maximum benefit from treatment and his condition has been stabilized with medication."

Of the total $200,000.00 proposed settlement, $30,000.00 has apparently already been paid to Mylic's mother on her claim for loss of services. Of the remaining $170,000.00, Plaintiffs' counsel is requesting a fee of $56,666.66, waiving disbursements, leaving $113,333.34 for Mylic. It was proposed that an annuity be purchased, providing for the following periodic payments:

$13,075.00 Semi-annually for eight (8) guaranteed payments (4 years) beginning September 9, 2014 (age 18), with the last payment on March 9, 2018

$20,000.00 September 9, 2021 (age 25)

$30,000.00 September 9, 2026 (age 30)

$40,000.00 September 9, 2031 (age 35)

$60,000.00 September 9, 2036 (age 40)

$113,000.00 September 9, 2061 (age 65)

In his affirmation, Mr. Vesnaver recommended the settlement as "a fair and appropriate settlement given the recovery made by the Infant Plaintiff." Mylic's mother, Nadese Joseph, agreed to the settlement in her Affidavit. Neither document provided any elaboration for the conclusion that settlement for the sum of $170,000.00 is a fair and reasonable settlement, nor did either provide any reason for structuring the settlement generally or with the periodic payments proposed, nor did either explain any basis for the $30,000.00 paid to Mylic's mother.

In telephone conversation with Plaintiffs' counsel and at a June 6, 2006 interview, the Court expressed several serious concerns raised by the application. They were, generally and in no particular order: the Court was given no medical opinion as to whether and to what extent Mylic is likely to be capable of handling his own affairs when he reaches majority; the Court was given no opinion by any qualified expert as to whether and to what extent some portion of the settlement funds might be effectively used before Mylic reaches majority to ameliorate any of the learning, behavioral, or other developmental effects that he has suffered from lead poisoning; the Court questioned both the authority and justification for a structure that deprives the infant of the opportunity to make his own allocation of substantial funds for use and investment, with the final, and largest, payment deferred until age 65; and the Court could see no justification for deflecting more than 20 percent of available insurance proceeds (after deduction of a one-third attorney fee) to the mother for "loss of services." Only some of these concerns have been adequately addressed in the many months the application has been pending.

In an Amended Physician's Affirmation, after a further examination of Mylic on March 27, 2006, Dr. Charash offered his opinion that Mylic "will be able to graduate from high school, and may within reasonable certainty have the capacity to go on to some additional training and education." He opined further "within a reasonable degree of medical certainty", that Mylic will "be competent to handle his own affairs upon reaching the age of majority."

A revised proposed compromise order has been submitted that includes a different schedule of payments, namely:

$13,075.00 Semi-annually for eight (8) guaranteed payments (4 years) beginning September 9, 2004 (age 18), with the last payment on March 9, 2018

$25,000.00 September 9, 2021 (age 25)

$40,000.00 September 9, 2026 (age 30)

$84,056.62 September 9, 2031 (age 35)

The revised proposed compromise order was not accompanied by an additional attorney's affirmation or an additional guardian's affidavit, explaining how the new schedule of payments will serve Mylic's interests. Although the revised proposed order was accompanied by eight pages of school records, they are not explained by any teacher or other professional, and do not provide any assessment of Mylic's current developmental status or any information on whether and how he might benefit from assistance that will not be provided by the public school system.

As to the $30,000.00 payment to Ms. Joseph, a March 9, 2006 letter from counsel advises that, "due to the additional needs of Mylic which resulted from the lead poisoning, such as the special diet required by Dr. Charash as noted in his affirmation as well as specialized aftercare once the school day is done, Ms. Joseph required a fund from which she could help defer these costs given the limited nature of her income." The "special diet required by Dr. Charash" is a reference to the following statements in his Amended Physician's Affirmation: "I have advised the infant-plaintiff's mother to provide the infant with vitamins and iron supplements. She was also given a dietary instruction, with advice to eat a lot of green leafy vegetables." The Court has been given no description of the "specialized aftercare" counsel mentions, or any professional justification.

In considering an application for approval of an infant compromise, the court must "scrutiniz[e] it to assure that it [is] fair and reasonable and in the infant's best interests." (See Edionwe v. Hussain, 7 AD3d 751, 753 [2d Dept 2004]; see also Barretta v. NBKL Corp., 298 AD2d 539, 539-40 [2d Dept 2002].) The facts and circumstances to be considered are those required to be included in the affidavit of the infant's representative, the affidavit of the infant's attorney, and in the medical or hospital reports, that must be submitted with the application. (See CPLR 1208[a], [b], [c]; see also Uniform Rules for the New York State Trial Courts, 22 NYCRR §§202.67, 208.36.) The considerations are similar to those that determine the fairness and reasonableness of settlements generally (see Allstate Insurance Co. v. Williams, 2006 U.S. Dist. LEXIS 67849, *5-*7, 2006 WL 2711538 [EDNY]), but require special focus on whether the infant's representative or counsel may have an interest adverse to or conflicting with that of the infant (see CPLR 1208[a][8], [b][2], [e].)

"[T]he power of the court to approve a settlement does not confer a concomitant power to dictate the terms of the settlement." (Stahl v. Rhee, 220 AD2d 39, 44-45 [2d Dept 1996].) "In a case where reasonable minds may legitimately differ, the judgment of the infant's natural guardian should prevail." (Id. at 46; see also Matter of Palmiere, 284 AD2d 965, 966 [4th Cir 2001].) But the court need not defer to a guardian's judgment that is "unreasonable, arbitrary, or capricious" (see Stahl v. Rhee, 220 AD2d at 46; Matter of Palmiere, 284 AD2d at 966), and the court may withhold its approval if all relevant information is not discernible from the record and "it does not appear that the infant plaintiff's best interests are being protected." (See Edionwe v. Hussain, 7 AD3d at 753-54.)

The deference given to the guardian's judgment covers the guardian's choice of a structured settlement. (See Barretta v. NBLK Corp, 298 AD2d at 539-40.) But the papers submitted on this application contain no explanation for that choice. (Compare Glenn v. Jones, 8 Misc 3d 799, 801 [Sup Ct, Nassau County 2005].) Nor is there any evidence that the guardian has investigated and considered whether any of the settlement funds would better be directed to the infant's immediate developmental needs (see Edionwe v. Hussain, 9 AD3d at 753-54), as requested by the Court more than once during the pendency of the application.

Equally troubling, if not more so, is Ms. Joseph's settlement of her claim for loss of services out of the available insurance proceeds. Except for a statement in a doctor's 2002 report that Mylic's father was living in Boston, the application contains no information on the father's relationship to the infant. The Court will assume, nonetheless, that Ms. Joseph would be able to establish facts that would entitle her to a claim for loss of services. (See Winnick v. Kupperman Construction Co., Inc., 29 AD2d 261, 266-67 [2d Dept 1968]; In re LaPonzina, 116 NYS2d 750, 751 [Sur Ct 1952].)

The right to recovery for loss of a child's services during the child's minority when caused by tortious injury has long been established at common law. (See Cuming v. Brooklyn City Railroad Co., 109 NY 95 [1888].) The parent is entitled to recover damages "measured by the pecuniary loss . . . sustained . . . including the value of [the child's] services, if any, of which [the parent] was deprived and reasonable expenses necessarily incurred by the [parent] in an effort to restore the infant to health." (Gilbert v. Stanton Brewery, Inc., 295 NY 270, 273 [1946].) There is no recovery for loss of society or companionship. (See id.; Devito v. Opatich, 215 AD2d 714, 715 [2d Dept 1995].)

There is no evidence on this application that Ms. Joseph has sustained or will sustain pecuniary loss by reason of deprivation or diminution of Mylic's services. (See Devito v. Opatich, 215 AD2d at 715; Foti v. Quittel, 19 AD2d 635, 635 [2d Dept 1963].) Although with respect to certain physical injuries, the absence of proof of loss of services might be cured by "ordinary human experience" (see Zimmerman v. New York City Health and Hospitals Corp., 91 AD2d 290, 295 [1st Dept 1983]), that is not apparent here, and would not in any event justify an award of $30,000.00 to the mother when the child is receiving $170, 000.00 (see id.)

As for expenses for vitamins and green leafy vegetables, assuming that such expenses could be recovered by Ms. Joseph if she actually incurred them (see Martell v. Boardwalk Enterprises, Inc., 748 F2d 740, 754-55 [2d Cir 1984] [educational expenses]), there is no evidence that she has. Any expenses of that type that might be incurred in the future must be reflected in Mylic's recovery, and not his mother's. (See Clarke v. Eighth Avenue Railroad Co., 238 NY 246, 249-50 [1924]; Stiles v. Caddick, 11 AD2d 889, 889-90 [3d Dept 1960].) Such an allocation "insures that whatever sum will be recovered will be more likely used for the infant's benefit than if a recovery be permitted by the parent." (See Clarke v. Eighth Avenue Railroad Co., 238 NY at 250.) The recovery will then be subject to the "usual protection of judicial supervision over the proceeds." (See Stiles v. Caddick, 11 AD2d at 890.)

Indeed, if such expenses are likely, and are the only basis for any recovery by the mother, it appears that the court would have the power to direct transfer of the mother's recovery to the benefit of the child. (See id.; see also Shields v. City of Watervliet, 41 AD2d 170, 172 [3d Dept 1973].) That is not a question that need be resolved now.

To the extent that the amount proposed to settle Mylic's claim, $170,000.00, does not include expenses that would necessarily be incurred for his care, and particularly since funds to cover those expenses were available through insurance, it is difficult to see how the amount proposed is a fair and reasonable settlement. Counsel's affirmation states conclusorily that the amount proposed is "a fair and appropriate settlement given the recovery made by the Infant Plaintiff", but "counsel . . . [does] not explain his reasons for recommending the settlement." (See Edionwe v. Hussain, 7 AD3d at 753-54.) The Court has already noted the absence of investigation into whether Mylic would benefit from immediate assistance and its likely cost. "In addition, there is no evidence of any diligent inquiry into the availability of additional insurance or assets against which the infant plaintiff might collect or concerns about liability if the case is tried." (Id., at 754.)

The Court must also note that, having reviewed hundreds of applications for approval of infant compromises, this is the first that does not contain a waiver of the parent's claim for loss of services. An informal survey confirms that this experience is shared throughout the courthouse. Every case, of course, is different, and one parent's decision to forgo a claim cannot bind another parent. But the experience suggests societal mores that encourage the parent to maximize the monetary recovery of the child, particularly when, as appears the case here, presented with a zero-sum field.

In preparing for renewal of this application, counsel should consider whether Ms. Joseph and Mylic have adverse interests, and whether his continued representation of both would create a conflict.

Civil CourtJudgeBattaglia

MEDICAID LIENS
Fergeson v. IHB Realty Inc.
In this case, plaintiff moved to modify a prior court order awarding $40,000 to New York City in full satisfaction of its asserted medicaid lien arguing the settlement should be set aside based on the recent ruling in Ark. Dept. of Health and Human Services, et al. v. Ahlborn asserting the holding made it clear the federal medicaid law and its anti-lien provision prohibited the recovery of medicaid liens from torts proceeds exceeding the medical expenses portion. The court stated the facts of this case did not run afoul of Ahlborn, noting all concerned parties were aware the matter was sent to arbitration with the court reserving the power to set liens. It noted it was clear liens would be deducted from the settlement regardless of any specific designation. The court directed counsel to negotiate a lesser compromise figure with the Department of Social Services which it agreed to set as the medicaid lien portion of the award in its order, and the amount of the reduced lien became the designated medical costs allocation in the prior settlement order, and pursuant to Ahlborn, the only amount recoverable by DSS. Thus, plaintiff's motion was denied.

Appellate Court decision regarding DWI in New York State

A driver who allegedly inhaled from a can of Dust-Off before veering into oncoming traffic and killing one person cannot face driving while intoxicated and vehicular manslaughter charges under the state's drunken-driving laws, an appeals court in Brooklyn has ruled.

A divided panel of the Appellate Division, Second Department, held that the laws in question, Vehicle and Traffic Law §1192(3) and Penal Law §125.12, only apply to impairment caused by alcohol.

The majority found that the state Legislature had clearly recognized that §1192(3) did not apply to driving under the influence of drugs, which is why it passed §1192(4). "For us to hold otherwise would render 1192(4) superflous[sic], a result to be avoided in statutory construction," the majority wrote in People v. Litto, 2005-02978.