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/

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/

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/

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/

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/

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

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

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