December 3, 2008

Notice of Claim Against Town Must Be Specific

In Godwin v. Town of Huntington, the Second Department Appellate Division threw out the lawsuit and claim of Ms. Godwin who was injured in an car accident with a vehicle owned by the Town of Huntington. In almost all cases against a government, like the Town of Huntington, the law is clear (General Municpal Law Section 50-e). A a Notice of Claim must be filed with the government within 90 days from the date of the accident/incident. Only when the governenment has actual knowledge of the essential facts of the claim will the courts allow an extension of the time period after 90 days, but not past 1 year and 90 days. The Court held in this case that the claim must be dismissed because the Notice of Claim was filed 99 days after the accident and not within the 90 days as required. The Court also mentioned that there would be no extension of the time to file because the Notice of Claim did not mention the essential facts of the accident, and the police report that the town did receive within the 90 days did not mention any of the claims of negligence alleged by Ms. Godwin. www.foleygriffin.com

November 21, 2008

Illegal Aliens Entitled to Their Lost Wages

SCAFFOLD FALL
The Appellate Division Second Department decided a case on November 12, 2008 has determined that a laborer from Ecuador, who was in the United States without permission, was entitled to recover lost wages as a result of his injuries from a fall at a construction site. The worker fell from a makeshift scaffolding at a townhouse construction site after he was hired by one of the construction site companies to perform work. As a result of the fall of approximately 25 feet, the worker was left paralyzed. In December 2006, a jury awarded the worker $3.3 million, which included the very low amount of $102,000 for lost wages. The Court ruled that because the worker's employer violated The Immigration Reform and Control Act of 1986 by not verifying the worker's identification documents, the worker was able to submit a claim for his actual lost wages to the jury. The Court then ordered a new trial unless defendants agreed to pay $6.8 million. http://www.foleygriffin.com/

November 5, 2008

Family Gets $29M for Fatal Crash Caused by Overloaded Truck

In Estate of Malkin v. Transport Expressway Inc., an Orange County New York jury awarded over $29 million to a family that was involved in a fatal motor-vehicle accident on the New York State Thruway on January 25, 2002. The plaintiff driver was driving on the northbound side of the New York State Thruway, near an underpass that crossed beneath Pleasant Hill Road, in Mountainville, New York. The plaintiff driver's husband was a front-seat passenger and the couple's 15 year old daughter was a rear-seat passenger. At the time of the accident, a trucker in front of the family attempted to travel beneath the overpass, but the truck's payload struck the underside of the overpass causing a freight container to fall off the truck and shatter on the highway. As the plaintiff driver tried to avoid the container, the family's vehicle was hit by a second truck causing it to go off the highway, killing the husband injuring his wife and daughter. The jury found that the accident was caused by negligent overloading of a tractor-trailer. www.foleygriffin.com

October 28, 2008

Deposition Permitted Through Video Teleconferencing

In Guthartz v. First Wall St. Securities of NY Inc., the elderly and infirm plaintiff, who is a Florida resident, requested of the Court to order that his deposition in the Nassau County, New York case be conducted by video teleconferencing, and not in person as the general rule and custom. Defendant disputed plaintiff's inability to travel, claiming the "true purpose" of the motion was to avoid disclosing that plaintiff may not be of sound mind to continue the litigation. The court stated rebuffed defendant's argument that conducting the deposition by video conferencing would impair his ability to inquire as to plaintiff's competency or any substantive issue in the case. The courts are given wide discretion in discovery issues by New York law. The Nassau County judge decided that due to plaintiff's ill health, it would be an undue hardship for plaintiff to travel to New York and granted his request to have his deposition by live video conference from plaintiff's Florida home. www.foleygriffin.com

October 27, 2008

Medical Malpractice Suit for Pain and Suffering

In Crawford v. Beth Israel Medical Center, a medical malpractice action arose from coronary surgery. The action sought damages for conscious pain and suffering based on defendant surgeon's alleged departures from standards of good and accepted medical practice. During the surgery a pair of clips placed on plaintiff decedent's vein came off causing decedent to hemorrhage in the recovery room and require emergency resuscitation. Defendant surgeon moved to dismiss, contending that a clip can come off absent negligence and that he checked proper clip placement and installation because "[i]t's in the nature of the process to check repeatedly for the integrity of the conduit." The court denied defendant's motion, finding it was not readily apparent that defendant had checked the clips or that he did so adequately. http://www.foleygriffin.com/

October 22, 2008

Federal Judge Blasts Use of Statistics on Race to Set Damages

A Brooklyn federal judge slammed the use of statistics showing racial differences in life expectancy to determine damages for a catastrophically injured black man. The man was rendered a quadriplegic in the 2003 crash of the New York City-operated Staten Island Ferry. Last month, the judge awarded the man damages of $18.3 million. The city had sought to limit his damages on a number of grounds, arguing that his past criminal records as much as his race indicated a shorter life expectancy. The judge held that the consideration of statistical differences in life expectancy among races in determining damages would be discriminatory and unconstitutional. http://www.foleygriffin.com/

October 20, 2008

Wrongful Death of Incarcerated Woman

The family of a woman who died after five weeks in the Delaware County Jail filed a wrongful-death lawsuit against the Delaware County Jail in the 3rd District Federal Court, accusing jail officials of ignoring the medical and mental-health needs of the decedent until it was too late. When the decedent was first incarcerated, the jail personnel were informed that she suffered from mental illness and schizophrenia. During the 78 nursing shifts for the five weeks she was incarcerated before she died, her vital signs were taken only 17 times. And even though she was on suicide watch, the jail refused to provide her with psychotropic medication. When she had a seizure, jail medical staff waited nearly an hour and a half before calling 911. By the time ambulance arrived, she was non-responsive. The Delaware County Medical Examiner stated in the autopsy report that the cause of death was profound hypothyroidism, a condition which slows metabolism. While she was in jail, she did not receive any treatment for hypothyroidism. The family alleged in their lawsuit that her death was the result of a deliberate indifference by the jail personnel to her basic and serious medical and psychological needs and violated their own policies for caring for their inmates. http://www.foleygriffin.com/

October 15, 2008

Police Officer Liability

In Tutrani v. County of Suffolk, the Court of Appeals unanimously decided that a Suffolk County Police Officer was properly held 50 percent liable by a jury for an auto accident in which another motorist was injured. The officer was driving his vehicle on the Long Island Expressway in the middle lane during rush-hour traffic when he abruptly decelerated from 40 mph to a crawl while changing lanes. Plaintiff, traveling immediately behind him, slammed on her brakes and was able to stop without colliding with the officer's vehicle. However, seconds later, plaintiff's vehicle was rear-ended by another vehicle.

The jury found both the officer and rear driver 50 percent at fault for the plaintiff's injuries. On appeal, the Second Department held the officer was not liable because his conduct was not a proximate cause of the accident as plaintiff was able to stop before striking his vehicle. The Court of Appeals overruled the Second Department, holding that "it is irrelevant that plaintiff was able to stop her vehicle without striking the officer's vehicle." The highest court in the state went on to find that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle. However, the rear driver's negligence in rear-ending plaintiffs stopped vehicle does not absolve the officer's liability as a matter of law. Clearly, the officer's actions created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear-end collisions. It is a foreseeable consequence of the situation created by the officer that a negligent driver may be unable to stop his or her vehicle in time to avoid a collision with a stopped vehicle in the middle of the highway. http://www.foleygriffin.com/

October 14, 2008

Inconsistent Expert Opinions Result in Denial of Summary Judgment

In Joseph v.Hummel, Ms. Joseph sued to recover for her injuries from a car accident. The defendants alleged that her injuries did not meet the "serious injury threshold" set forth by New York Insurance Law. They asked the Court to throw out the case and submitted affirmations of their expert doctors, Edward A. Toriello, M.D. (orthopedic surgeon) and Monette G. Basson, M.D. (neurologist), who stated that Ms. Joseph did not suffer a serious injury because her range of motion in the injured parts of her body were "normal". However, each doctor had a different opinion as to what "normal range of motion" was and had a different opinion on the actual range of motion the plaintiff had at the time of their defense medical examination. The judge stated that this was fatal to their application to dismiss the case and he denied their motion. www.foleygriffin.com

October 13, 2008

Lack of Preparation Botches Discovery

In Sapichino v. City of New York, a personal injury action arising from a trip-and-fall on raised city sidewalk flagstones, plaintiff requested that the trial court strike the city's Answer for failing to comply with the court's prior discovery orders. The plaintiff submitted this request six weeks after filing a Note of Issue and Certificate of Readiness, which informs the court that all pre-trial discovery has been completed. The rules of the trial courts state that you cannot seek, except under special circumstances, discovery after you file the Note of Issue and Certificate of Readiness. The problem here was the plaintiff's attorney filed the Note of Issue and Certificate of Readiness and inserted a paragraph in the Certificate that there was still a discovery and inspection response by the city that was outstanding. Plaintiff's counsel argued that this modification was "how [they] do it in Brooklyn" and therefore, plaintiff's right to post Note of Issue discovery. The court stated it knew of no "Brooklyn" exception to the Uniform Court Rules, and denied plaintiff's motion, ruling plaintiff failed to make the required showing under Price v. Brady of "special, unusual or extraordinary circumstances" warranting a deviation from the court rule of no post Note of Issue discovery. The court declined to strike the defendant City's Answer or allow the requested discovery. This case highlights the importance of finding an experienced trial attorney who understands how to comply with procedural rules for all the different courts he or she practices in. www.foleygriffin.com

October 10, 2008

Patient Injured by Home Health Care Aide

An elderly, quadriplegic man, in Garden City South was injured when his home health care aide assaulted him. The aide is accused of mistreating the patient, who uses a wheelchair and requires round-the-clock care, while employed as an aide by Ameriplan, a health care agency. The aide became irate while taking care of the victim, verbally harassing him, and then striking him with a fist upon his face causing severe swelling, pain and bruising. Afterwards, the aide locked the 68-year-old man in a room, removed the telephone, and left the residence for two hours without providing the victim with food, water, medication or care. The aide was criminally charged with endangering the welfare of an elderly person, unlawful imprisonment and assault. Not only could the aide be held civilly liable for the injuries sustained by the victim, so could Ameriplan if they knew, or should have known, that the aide was prone to violence. http://www.foleygriffin.com/

October 9, 2008

Intentional Act Ruled an 'Accident' For Victim in Car Insurance Claim

In State Farm Mutual Automobile Insurance Company v. Langan, a New York City lawyer was walking on Seventh Avenue near 32nd Street when a car, driven by a man seeking to kill as many pedestrians as possible, jumped the sidewalk, striking him and fracturing his leg. The car continued to barrel down the avenue, hitting 19 people in total.

In a precedent setting case, the Appellate Division, Second Department ruled that the incident was deemed an "accident" for no-fault insurance purposes, even though the driver's actions were intentional. The court held that the issue of whether an automotive "event" is an "accident" should be viewed from the perspective of the victim, not the errant driver. The court went on to state that insurance "coverage is unaffected by whether the tortfeasor acted intentionally in causing the injury, provided only that, from the viewpoint of the insured, the event was 'unexpected, unusual and unforeseen' and not brought about by the insured's own 'misconduct, provocation, or assault.'". He was entitled to recover benefits under his insurance policy's personal-injury protection endorsement, as well as its death, dismemberment and loss of sight provisions, because the sections did not exclude intentional acts. However, the lawyer was not covered by his car-insurance policy's uninsured-motorist or his supplemental uninsured-motorist provision, which explicitly excludes intentional acts. http://www.foleygriffin.com/

October 8, 2008

Lawsuit Dismissed Against Driver Caught in Car Chase


In Pisciotto v. LaRocque, a driver, caught in the middle of a speed race that ended in a three-car accident, was found not to be negligent in a lawsuit brought by his passenger. The driver was going down Town Path Road in Glen Cove when two vehicles pulled up alongside, flanking him. The court found that the testimony plainly showed a speed race, where both racers simultaneously attempted to pass the driver. One of the racers collided with the driver, then hit the other racer before crashing into a tree. The court held that mere speculation that the driver failed to take accident avoidance measures, such as braking or steering away, was not enough to keep him in the lawsuit. http://www.foleygriffin.com/

October 7, 2008

Independent Medical Examination Does Not Create a Physician-Patient Relationship

Doctors Doing Medical Exams for Insurance Companies Better Be Careful
In the case of Bazakos v. Lewis, plaintiff was injured when his car was rear-ended by another. After the accident, he commenced a lawsuit against the other driver, seeking to recover money damages for his injuries. As a result of the lawsuit, plaintiff was required to appear at the office of an orthopedic surgeon, who had been hired by the insurance company of the other driver. During the medical examination, the doctor took the plaintiff's head in his hands and forcefully rotated it while simultaneously pulling, which caused the plaintiff personal injury.

Approximately two years and eleven months after the medical examination took place, plaintiff commenced a second lawsuit against the doctor, alleging that the doctor "committed negligence toward" him during the medical examination. The orthopaedic surgeon moved to dismiss the lawsuit because the plaintiff filed it after the two and one-half year statute of limitations period for medical malpractice claims, and not the three-year statute of limitations for regular negligence. The Appellate Division, 2nd Department, held that because a physician-patient relationship did not exist where the medical examination was conducted for the purpose of rendering an evaluation for an insurance company in a lawsuit, the two and one-half year statute of limtations was not applicable and the three years statute governed. http://www.foleygriffin.com/

October 6, 2008

Lawsuit Filed on Behalf of Estate of Teenager

A Harborfields High School senior drowned in shallow water while he practiced holding his breath at the YMCA of Long Island's Huntington facility. Two lifeguards were on duty when the accident happened, as well as an aquatics coordinator. A lawsuit has since been commenced by the student's estate against the YMCA and some of its employees for "reckless, careless and negligent . . . life guarding and supervision of the 4-foot deep pool." The lawsuit also alleges the YMCA and their employees were "reckless, careless, and negligent in the ownership, operation, management, maintenance, control, life guarding and supervision of the subject premises."

The family believes that the lifeguards failed to stop the boy from a life-threatening activity and, when he was in distress, were inadequately prepared to respond in a timely and proper manner. In our opinion, the estate will have an uphill battle being successful on this case. Many times, courts will reject these claims before the family has a chance to present their case to a jury, based upon the fact that the injured party, or in this case this case, the decedent, "assumed the risk" of injury or death.

August 1, 2008

Student Assault - Brooklyn


In the case of S.K. v. City of New York, the plaintiff SK was a 7th grader from Brooklyn who was injured during a fight with a fellow student, LC, at the end of gym class. LC assaulted SK and struck him the head. This caused SK to have a hemorrhage that necessitated approximately ten brain surgeries. There was evidence that the Board of Education of the City of New York was aware that SK had previously and repeatedly been harassed and assaulted by fellow students, including LC. There was also evidence that the Board refused to transfer SK to a safer school after repeated requests by his father. At the time of the assault, LC initially cursed at SK and then SK cursed back. LC threw the initial punch and SK hit LC back. The attorneys for the Board, who obviously forgot what it was like to be a 7th grader, argued that SK deliberately chose to continue the fight instead of retreating or seeking help from the gym teacher. They asked the judge to throw the case out of court. In response to this move, SK's father offered a detailed history of the complaints he made to the school along with four specific incidents where SK was attacked by other students in 1998. He stated he met with the principal about these incidents. He also wrote a letter wherein he detailed the incidents of harassment and physical assault and asked that his son be transferred. He detailed similar incidents throughout the year of 1999. The judge wisely refused to dismiss SK's case, stating that it was up to a jury to decide (1) if the Board should have provided closer supervision of SK or taken other action to protect him, (2) if SK was a voluntary participant in the fight with LC or was merely acting in self defense, (3) if the gym teacher provided adequate supervision of his students, (4) if SK's chronic problems with other students required closer supervision, (5) if the Board was on notice of such problems, and (6) if the Board breached its duty to adequately supervise SK. http://www.foleygriffin.com/

High Court Clarifies "Loss of Chance" Doctrine

In Massachusetts, victims of medical negligence can recover damages for reduced chance of survival even if the patient's prospect for recovery was already less than 50 percent. The Supreme Judicial Court decision stemmed from a $1 million award to the estate of a man whose doctor failed to diagnose his stomach cancer. The decision is the first time the Massachusetts court has recognized the “loss of chance” doctrine in a medical malpractice case. Unfortunately, New York is far behind and still does not recognize this right.

Playground Injury by Child


On September 7, 2004, the eight-year-old plaintiff was injured at a playground on the New York City Housing Authority's premises when she climbed on an inverted fish tank and the glass broke, causing injuries to her leg. The child's mother testified that the fish tank had not been in the playground the day before, but that it was there when she and the plaintiff arrived late in the afternoon or evening on the day of the accident. Other evidence was offered to show that the fish tank had been in a "drop area" adjacent to the playground for one or two weeks and that a child dragged it into the playground when the plaintiff arrived on the day of the accident. The defendant moved for summary judgment dismissing the complaint. The Court refused to dismiss the case. http://www.foleygriffin.com/

Allstate Commits Bad Faith

Court Uphold Bad Faith Judgment Against Allstate
A Missouri appellate panel upheld a $16 million bad faith judgment against Allstate Insurance Company. The Missouri Court of Appeals found that, based on the evidence presented in the case, it was reasonable to infer that the insurer had acted in bad faith. The cases stemmed from a 2000 drunken driving accident in which Allstate refused to settle claims on behalf of the victims.

Punitive Damages as Punishment

State Court Upholds Punitive Damages Against Automaker
The family of an 8-month-old boy killed in a 2001 auto accident will receive $13 million in punitive damages from DaimlerChrysler following a Tennessee Supreme Court decision. According to the wrongful-death lawsuit, the defective seat construction in the Dodge Caravan was to blame for the boy’s death.

July 3, 2008

Lead Paint Poisoning - Jury Verdict - Pain & Suffering


Brooklyn Supreme Court Justice Saitta, in his decision of June 23, 2008 in the case of Solis-Vicuna v. Notias, denied the defendants motion to set aside the jury verdict against them. The jury decided that the plaintiff in the case was entitled to future pain and suffering but not past pain and suffering, which while uncommon was not inconsistent. The plaintiff in the case sued defendants for personal injury resulting from the lead paint poisoning of the child plaintiffs while they lived in defendants' building. The evidence at trial was that the children's pain and suffering caused by the lead poisoning would manifest in the future as developmental deficiencies of their mental and intellectual abilities. The children's expert testified that lead intoxication would become evident as the children grew older. Justice Saitta ruled that the testimony at trial supported the jury's findings that the children will suffer in the future as a result of the lead poisoning. www.foleygriffin.com

May 27, 2008

Child Hurt On Collapsed Bleacher

On May 19, 2008, Brooklyn Supreme Court Justice Robert Miller decided in the case of Einhorn v. City of New York, that injured students of a Brooklyn private school could continue their lawsuit not only against the City of New York, but against their congregation and their school for the negligent planning, operation and control of a wedding that they were attending. The students were injured when the bleachers they were watching the wedding from collapsed underneath them. The evidence showed that the bleachers were over flowing with people. The Court held that the congregation could be sued because a jury may find that as the organizer of the wedding it had a duty to its invited guests, including the students, to use reasonable and ordinary care to insure against foreseeable risks, which included preventing overcrowding of the bleachers.

March 31, 2008

Assumption of Risk


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. www.foleygriffin.com

March 25, 2008

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