NYC Construction Accident - Recent Settlement

Five companies that were involved in the demolition of a Queens bottling plant have agreed to pay a total of $16 million to a worker who suffered severe brain damage in a fall at the plant. The injured worker fell off of an 18-foot-high scaffold while working on the building. As the scaffold was not tall enough to reach the ceiling, the worker stood on a crate that was placed on the scaffold's top level. The claim was that this configuration was a violation of the New York State Labor Law. www.foleygriffin.com

Recent Jury Award

A jury awarded more than $13 million to a construction foreman who was injured when a job site's temporary bridge collapsed and dumped him onto a sidewalk eight feet below. After a judge ruled that the site's owners and the project's general contractors were liable via the broad applicability of the labor law, the jury found that the bridge's manufacturer was negligent in its construction of the bridge and that the site's engineer and the foreman's employer were negligent in their failure to inspect the bridge. The foreman, Paul Barraco, claimed that he sustained a back injury and fractures of both heels. He contended that he cannot resume work. Barraco was awarded $13,362,904, and his wife was awarded $637,096 for her residual loss. www.foleygriffin.com

MEDICAID LIENS

RECENT SUPREME COURT DECISION ON MEDICAID LIENS

Recently the Supreme Court decided a case that will have an impact upon State's ability to recover payments under Medicaid. In discussing litigation settlements and recoveries, the U.S. Supreme Court has ruled that States may not demand reimbursement from portions of the settlement allocated or allocable to non-medical damages; instead, States are given only a priority disbursement from the medical expenses portion alone. Why is this important? Before this ruling, states like New York, would seek reimbursement for all Medicaid related expenditures. This often would seriously reduce a person's recovery. Now, the State's recovery will be limited pursuant to the ruling. www.foleygriffin.com

Hospital May Be Held Liable for Private Doctor's Negligence

In a recent Nassau County medical malpractice case against North Shore University Hospital at Plainview, Dimitriou v. Mansouri, Nassau County Justice Bruce D. Alpert ruled that the hospital would not be released from the lawsuit of a plaintiff who sued to recover damages for personal injuries sustained as a result of malpractice of his private doctor who treated him at the hospital. The hospital moved to dismiss the complaint against it, claiming it could not be held responsible for the negligent acts or omissions of the plaintiff's treating private doctor. The rule is that a hospital could not be held liable for the malpractice of a private attending physician who was not its employee. However, there is an exception where the patient entered the hospital through the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing. The Court denied the hospital's motion stating that it failed to submit enough evidence to demonstrate that the plaintiff went to the emergency room seeking treatment from a private doctor rather than from the hospital itself. www.foleygriffin.com

The 90 Day Notice of Claim Rule

In the case of Tupaz v. City of New York, a Staten Island Judge, Justice DiDomenico, dismissed, on a legal technicality, the lawsuit of a Staten Island homeowner who sought to recover money damages against New York City after multiple City sewer back-ups caused damage to his house. The problem was that the homeowner filed the required Notice of Claim within the 90 days after the discovery of the cause of the damage, the defective sewer line, and not within the required 90 days of the actual damage. Although this was a property damage claim, the same rule applies (except for certain medical malpractice claims against the City) to personal injury claims. The lesson to learn here is if you have a claim that MAY be against The City of New York or any of its agencies or departments, make sure that a Notice of Claim is filed within 90 days of the event. www.foleygriffin.com.

New York State Liable for the Death of Group Home Member

Patrick v. State of New York. After the death of their son in the hands of State agents, his parents brought a claim against the State of New York alleging that their son died because staff members at the group home he lived in used excessive force to restrain him. They also claimed that the staff members were inadequately trained. The court ruled that the parents did establish "by a preponderance of the credible evidence" that the State's negligence caused their son's death and found the State fully liable. The court noted the cause of death was asphyxia during restraint, and that but for the use of excessive force by staff members of the group home, their son would likely be alive today. www.foleygriffin.com

Landlords Liability in New York State

Generally, in New York State, a landlord, must act reasonably in the maintenance of his/her property, keeping it in a reasonably safe condition. As most situations are unique to a degree, what is reasonable must be considered on a case by case basis. Each case will be evaluated by the Courts with the following in mind: the likelihood of injury to others; the seriousness of the injury; and the burden upon the landlord to avoid the risk of harm and injury to others. More particularly, a landlord is under a duty to keep in repair those parts of a property that are within his/her exclusive control. However, a landlord is required only to make the premises reasonably safe for the purposes for which they were intended to be used or for a purpose which he or she should reasonably anticipate. A landlord cannot ignore their property they lease to others and later claim that they did not know about a certain condition that caused someone to be injured. There is an affirmative obligation of landlords to exercise reasonable care to inspect and repair common areas of their premises for the protection of the tenants. This duty may not be delegated with the consequent immunity from liability. www.foleygriffin.com

Plaintiff's Lawyer Fails to Provide Discovery

One of the pitfalls of plaintiff personal injury practice is the failure to provide demanded discovery to your adversary. This can occur when an attorney for the injured party has either taken on too many cases, or has let a case slip through the cracks. The penalty for this inaction can be harsh. In the fall of 2005, New York State's highest court, The Court of Appeals, held that a trial court's dismissal of a plaintiff's personal injury action for the attorney's failure to comply with the Court's discovery orders warranted a dismissal "for neglect to prosecute the action". Unfortunately for the injured plaintiff, because the statute of limitations of three years had expired, the plaintiff was not allowed to bring the action again. The Court of Appeals stated that "disregard of deadlines should not and will not be tolerated." www.foleygriffin.com

Slip & Fall Upon Wet/Greasy Conditions Created by Restaurants.

There are many occasions when our clients are injured after they fall due to dropped debris from a restaurant staff member. New York law is clear on who is liable when these types of accidents happen and how to prove the fault of the restaurant if you are injured. In order for the injured person to establish liability of the restaurant for the debris and subsequent fall, she must submit evidence to the judge and jury to create a triable issue of fact of whether or not the restaurant either created the defective, dangerous and wet/greasy condition or had actual or constructive notice of it. The injured person may prove notice by submitting evidence that an ongoing and recurring dangerous condition existed in the area of the fall, which was routinely left unaddressed by the restaurant. If the injured person does establish this "recurrent condition", the restaurant may then be charged with constructive notice of each specific re-occurrence of the hazardous condition. Also, it is well settled that a restaurant is liable if its affirmative acts created or increased the hazard that caused the injury. www.foleygriffin.com

Medical Records - The New York State Privilege & Waiver

We represented the family of a young woman who was killed in a two car accident in Suffolk County, New York, when the driver of her car went through a stop sign and was hit by an oncoming car. There was a belief that the driver of the young woman’s car was drunk. This belief was confirmed by a test of his blood at the hospital he was taken to for treatment of his injuries. This blood test would not be admissible in a criminal trial due to a chain-of-custody issue. There would have to be an official blood test ordered by a warrant. The police did not get the warrant and the District Attorney’s office declined to prosecute claiming that there was no admissible proof under the New York State Vehicle and Traffic Law statute for Driving While Intoxicated. The family looked to Foley, Griffin, Jacobson & Faria, LLP to prosecute a wrongful death action against the drivers of both cars. However, because of New York State’s rule that a defendant in a personal injury/wrongful death action has his/her medical records protected by the physician-patient privilege, we could not introduce the medical records showing that the driver of the host car was intoxicated. There is only one exception to this rule, if the defendant waived the privilege. During the prosecution of the wrongful death action, we learned that the driver brought his own personal injury action for the injuries he sustained. His medical condition was now out in the open and his hospital records showed that he had a blood alcohol level over twice the New York State legal limit. Once the driver realized that his intoxication would be too strong an issue for him to overcome in his lawsuit, he withdrew it. We attempted to use his hospital records in the wrongful death action to prove he was intoxicated. His lawyers objected, claiming that he was still protected by the physician-patient privilege. We countered that once the driver waived the privilege in his action, it was waived for all time and all purposes. The fact that he discontinued his lawsuit was of no concern. After argument, the Judge agreed with our position and ruled that the hospital records of the driver would be admitted into evidence. www.foleygriffin.com

Slip & Fall Accidents in New York State

Slip & Fall Accidents: As attorneys practicing in the field of personal injury in New York City and Long Island, we have many clients who have been injured in slip, trip and fall accidents. The first thing that we advise our clients at their initial interview, is the current applicable law in New York State. In order for a victim of a slip, trip and fall accident to be successful, she must submit to the Court that is hearing her case, sufficient evidence to create "a triable issue of fact" of whether or not the defendants either created the defective condition that caused her to fall or had actual or constructive notice of the defective condition. This can be proven by evidence that the defendants actually created the condition, or that they actually knew about the exact condition that made the victim fall. The victim may also prove this "notice" requirement by submitting evidence that an ongoing and recurring dangerous condition existed in the area of the incident, which was routinely left unaddressed by the defendants. This does not have to be the exact condition that the victim fell upon. If the victim does establish a condition was continuously present, the defendants may then be charged with notice of each specific re-occurrence of the hazardous condition. These rules are applied once the victim has successfully identified the proper defendants and followed all the legal requirements to effectively prosecute a civil case against them. As in most areas of the law, there are exceptions to these rules. It takes a cautious practitioner to identify and pursue all the proper parties and arguments in a slip, trip and fall case. www.foleygriffin.com

Foley Griffin Jacobson & Faria, LLP

At the law firm of Foley, Griffin, Jacobson & Faria, LLP, our attorneys have over 45 years of combined experience and are committed to achieving superior results for every client we serve. Our dedication has paid off in numerous large personal injury and wrongful death verdicts and settlements as well as successful criminal defense verdicts and resolutions. At Foley, Griffin, Jacobson & Faria, LLP, we take pride in developing thorough and effective courtroom presentations that get results. At trial, our attorneys utilize state-of-the-art digital technology that presents evidence in a hard-hitting manner, which impresses upon a jury the seriousness of our client's claims. From inception, we prepare every case as if it will go to trial. Contact our office to schedule a free consultation to discuss your New York personal injury, auto accident or wrongful death case. Call 1-888-525-3924 or visit our website at www.foleygriffin.com.