Serious injury threshold

One of the most common issues that we confront as personal injury attorneys is the question as to whether our client's injuries meet the minimum threshold required to bring a successful lawsuit in New York State. (Insurance Law § 5102(d)). The Courts often grapple with the question as to what is a serious physical injury. It is commonplace for defendants to move to dismiss plaintiff's claims based upon the theory that the plaintiff's injuries are inadequate as a matter of law. However, the Courts will look to the medical report of the defendant's doctor before deciding whether or not the defendant has met his/her burden establishing the lack of serious injury. Recently the Second Department held that based upon the defendant's doctor's report, the motion to dismiss should have been denied by the trial court. In this case, Britt v Bustamante, the defendants relied, inter alia, on the affirmed medical report of an orthopedist who examined the plaintiff more than three years after the accident, and noted significant range-of-motion limitations in the plaintiff's cervical spine. In view of the orthopedist's findings, the defendants failed to establish their prima facie entitlement to judgment as a matter of law

Car accident-Sunrise Highway

Suffolk County police announced that one person has been airlifted to Stony Brook University Medical Center following a three-car on October 19, 2010 near the West Babylon-North Lindenhurst border. The crash occurred at 7:43 a.m. and closed down westbound Sunrise Highway at Exit 37, Route 109, police said.

Day care liability

Nassau County District Attorney Kathleen Rice announced that the owner, the former assistant director, and corporation that operates the Hicksville child daycare facility, Carousel Day School, where a two-year-old died in March 2009 after choking on a carrot have pleaded guilty to criminal charges. In addition to agreeing to State licensing requirements, sweeping safety improvements and more stringent oversight by the New York State Office of Child and Family Services (OCFS), the owner and former director of the school pleaded guilty to Reckless Endangerment in the Second Degree. As part of the plea agreement, the center must remain licensed and subject to the requirements of OCFS, including the fact that neither of the defendants is permitted to resume their former positions at the school. The civil claim in connection with the death of the child is being handled by attorney Thomas J. Foley of Foley Griffin Jacobson & Faria, LLP.

Notice of Claim

In order to bring a negligence claim against the government, it is necessary to notify the government of the claim within 90 days of the event that causes rises to the claim. This notification is known as a "notice of claim." The specific requirements for the notice of claim are set forth in the law. There are circumstances where a person may not know about the claim within 90 days of the event. The Courts will sometimes makes exceptions for those people and allow them to file a late notice of claim. The recent case of Dixon v City of New York illustrated one of those rare occasions where the Court permitted the plaintiffs to file a late notice of claim. In Dixon, the plaintiffs made a claim against the New York City Medical Examiner in connection with the M.E.'s handling of the autopsy of their son. The Dixons did not become aware of the M.E.'s claimed negligence until they received the autopsy report, likely more than 90 days after the M.E.'s negligence. The Court, however, allowed the Dixons to file a late notice of claim, holding that their claim became ripe at the time the plaintiffs became aware of the defendants' actions and suffered mental anguish as a result, not at the time of the autopsy.

Carousel Day School

On October 4, criminal defendants Eugene Formica, the owner of Carousel Day School in Hicksville, and Kathryn Cordaro, its manager, both pleaded guilty to misdemeanor charges for running an unlicensed child care center. These defendants were charged following the death of a toddler in their day care program. According to the information gathered, the defendants lacked the proper license to run the day care center. As a result, the school was not properly regulated leading to dangerous conditions and practices existing at the school. The civil claim against Carousel is being handled by Foley Griffin Jacobson & Faria partner, Thomas J. Foley, Esq.

Serious personal injury

In order to be successful on an automobile "personal injury" claim, a plaintiff must prove that her injuries met the personal injury "threshold." What injuries meet the threshold is a topic often discusses by the Courts. Recently the Court in Ballard v. Cuneen, 2010 NY Slip Op 06771, found that the defendant's failed to allege sufficient information establishing that the plaintiff's injuries did not meet the threshold. In particular the Court held that the defendant's own doctor found that the plaintiff had limited range of motion in her spine. Additionally, the Court held that the defendant's never addressed plaintiff's claim that that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.

Slip and fall

For attorneys to to bring a successful "slip and fall" lawsuit," it is necessary to prove that the property owner knew of the dangerous condition before the fall or the owner created the condition. Without proving knowledge or creation of the condition, the case will not succeed. A recent case in the second department demonstrated this. In Arzu v. County of Nassau the plaintiff allegedly sustained personal injuries when he slipped and fell on water on the bathroom floor of the defendants' facility. The defendants established their entitlement to judgment as a matter of law by demonstrating that they did not create the alleged hazardous condition or have actual or constructive notice of it (see Otey v City of New York, 42 AD3d 515; Gallais-Pradal v YWCA of Brooklyn, 33 AD3d 660; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409; Lowe v Olympia & York Cos. [USA], 238 AD2d 317). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320). Contrary to the plaintiff's contention, there was insufficient evidence to raise a triable issue of fact as to whether the defendants had actual notice of a recurring hazardous condition which proximately caused him to fall (see Gallais-Pradal v YWCA of Brooklyn, 33 AD3d 660; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.