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

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/

Foley Griffin Jacobson & Faria, LLP - Video

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

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

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/

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/

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/

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/

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

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

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/

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/

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/

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/

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.

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.

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

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.

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

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/.

Dog Bite - Animal Attacks

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]).

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

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.

DWI in NY State

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. www.foleygriffin.com

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.