School District responsibility

A school district can be found responsible for a defective condition on their property if they have notice of the decision. The appellate Court in Gille v. Long Beach City School Dist. ,(N.Y.A.D. 2 Dept.)held that there were genuine issues of material fact as to whether a school district negligently supervised a student and his classmates, and whether the school district had actual or constructive notice of the defective condition. Therefore, the school district was not entitled to summary judgment in the student's action seeking to recover damages for injuries he allegedly sustained when a window shade fell and struck him in the head and eye.

Pedestrian accidents-Long Island

Nassau and Suffolk counties rank third and fourth in pedestrian fatality rates among New York's 62 counties, according to a national report. The survey spurred calls for the state to redesign Long Island's deadliest roads for pedestrians. The report, released by the national nonprofit group Transportation for America, found that 52 percent of pedestrian fatalities across the country from 2000 through 2009 occurred on arterial roads -- thoroughfares it noted were engineered to move cars quickly, with little or no provision for people on foot, in wheelchairs or on bicycles.
Local transportation advocates called for the state Department of Transportation to invest more in safety projects and to develop plans to reduce pedestrian deaths on Hempstead Turnpike and Sunrise Highway, state roads that federal data show are among the region's most dangerous for pedestrians.

Cheerleading injury

Recently it was found that a school district was not liable in a cheerleader's personal injury action, arising from an accident during cheerleading practice in which a teammate fell on the cheerleader during practice of the "liberty" stunt. The cheerleader voluntarily engaged in the activity of cheerleading, including the performance of stunts and, as an experienced cheerleader, she knew the risks inherent in that activity. The cheerleader was adequately supervised and further assumed obvious risk of injury from practicing on a bare gym floor. Also, the cheerleader did not know why the accident occurred, as required to demonstrate proximate cause.

Trip and Fall accidents

In trip and fall cases, defendants will often argue that a defect was "open and obvious," thus the injured plaintiff should have seen the defect. This claim, however, should not be fatal to a claim. Under the theory of comparative negligence, just because the plaintiff may be partly responsible for the happening of an accident, doesn't mean that the case is over. This issue was recently addressed by an appellate court. In Saretsky v. 85 Kenmare Realty Corp., the plaintiff, Saretsky was hurt when she fell off a raised walkway in front of defendant's building after exiting a store. The platform-like raised walkway extends some 4½ feet from the building's face and ends at a 5-inch-high transition step at the center of the sidewalk. At a General Municipal Law §50-h hearing, Saretsky asserted she did not see the transition step, which she claimed was dangerous and trap-like. Supreme Court summarily dismissed her personal injury action after interpreting her claim that she did not see the purportedly "open and obvious" step as being that "she fell because she wasn't looking." Discussing Westbrook v. WR Activities-Cabreara Mkts. and Chafoulias v. 240 E. 55th Street Tenants Corp., and noting that her theory of "optical confusion" was supported by the record, the First Department reversed and reinstated the personal injury complaint. The panel ruled that the lower court's determination was error. Citing Westbrook, it reiterated the "well established principle" that a finding of "open and obvious" as to a hazardous condition is not fatal to a plaintiff's negligence claim. Rather it is relevant only to plaintiff's comparative fault. Therefore, summary dismissal of Saretsky's complaint was inappropriate.

Owners liability for dog

A recent court decision found that the owners of a dog were not liable for injuries which motorcyclist sustained when he attempted to avoid hitting the dog. In the case, Rockwood v. Abate, the Judge found that tthe owners of a dog were not liable for injuries which a motorcyclist sustained when he attempted to avoid hitting the dog, which had entered the road after pushing open the gate on a six-foot chain link fence surrounding the owners' yard and running down 100-foot driveway and into the road. The dog had never been unrestrained outside of the confines of the owners' yard prior to date of accident.

Hit and run driver-Bethpage

Nassau County Police reported that a hit-and-run driver in Bethpage struck two men riding on one bicycle Wednesday morning, killing one and seriously injuring the other.
The bicyclist was pronounced dead at a hospital at 7:20 a.m., an hour and 15 minutes after he was struck. The second victim was hospitalized in serious condition with internal injuries. Homicide detectives are searching for the driver of a white box truck that they think struck the bicycle as the two men headed south on Hicksville Road shortly after 6 a.m. The truck sustained damage in a front headlight area as a result of the collision, police said.

Fall on stairs

Recently, the courts decided a case where a theater-goer was injured after the lights had been turned off. The court held that A theater did not proximately cause injuries that a patron suffered from a fall from a stairs by suddenly turning the lights off before a performance. The strips of lights on the stairs were functioning, the patron of the theater should have expected that the lights in the theater would be turned off before the show began, common law authority did not prescribe a procedure of flashing or dimming lights before going off, and preventing house lights from being turned off until everyone was seated would have amounted to a prescription of conduct exceeding a duty of reasonable care.

Long Island Personal Injury Trial Lawyers: Motorcycle accident

Long Island Personal Injury Trial Lawyers: Motorcycle accident

Motorcycle accident

A motorcyclist from Farmingdale died on March 29, 2011 when his motorcycle collided with a car in Hicksville. According to the police, the man was taken by ambulance to Nassau University Medical Center in East Meadow, where he was pronounced dead. The man was operating a 2010 Harley-Davidson motorcycle east on Duffy Avenue at 3:16 p.m. when he crashed into the side of a northbound Honda that was making a left turn onto Duffy from West Nicholai Street.

Plowing Snow on Parking Lot

In the past, several cases have dealt with a frequently met requirement regarding the liability of a municipality in an area where a defect is present. The law says that a written notice of the defect must be given to the municipality before the liability of an injury from the defect can be imposed.

An exception to this law was recognized by the Court of Appeals in several cases. A recent case cited this exception stating that if the municipality created the defect through negligence, then they are not protected from liability.

The Court says that these statutes were never meant to exempt a municipality of liability where negligence is present. Piling the snow instead of removing it was a “cost-saving pragmatic solution,” but presented a “foreseeable, indeed known, risk of melting and refreezing.”

In the dissenting opinion, it says that prior written notice requirements are ‘a valid exercise of legislative authority.’ These notices are supposed to prevent negligence, and therefore injury. The dissent claims the written notice requirement did apply, and the case should have been dismissed.

Will My Case Go to Trial?

After being retained by people injured in car accidents, one of the first questions we often receive is, “will my case go to trial?” More often than not the answer is “maybe.” However, what we do inform clients, is that our firm prepares all cases as if they will go to trial. In our experience we have found that this is the best way to maximize the value of a case when negotiating with the insurance company. It is our belief that if the insurance company recognizes that you are prepared to litigate a case, they will treat your case more seriously and ultimately value you it higher.

There are three main factors that help determine if your case will go to trial. Those factors are as follows:

Liability: The first aspect of your case to be examined is the circumstances of the accident, and more specifically, who’s fault was the accident. If you were completely at fault for the happening of the accident, you have no case. But, if the other driver or drivers were completely at fault, or you were only partially at fault, you may have a case. A typical car accident case involves a rear-end collision. If you were involved in a rear-end collision case, and you were the front car (i.e. the car hit from behind), you have a great liability case. If someone makes a left turn in front of you causing an accident, you have a great liability case. In sum, if the other driver(s) violate a specific part of the the Traffic law (ex. red light, stop sign) your chances of succeeding on a personal injury claim are vastly improved.

Damages: New York State Law requires that in order for you to be successful on your automobile personal injury lawsuit, your injuries must meet a certain minimal threshold. If the Court determines that your injuries do not meet the threshold, your lawsuit is subject to dismissal. Yet, if your injuries meet the threshold, your likelihood of having a successful case vastly improves. Under the law, there are nine categories of threshold injuries. Examples of threshold categories are fractures, or significant disfigurement. The trickier cases involve so called “soft tissue” injuries. A “soft tissue” injury can be a disc herniation in your back, or a shoulder tear. The severity of this type of injury will determine the value of the injury. The best way to determine if your injury is significant is to examine the objective proof of the injury (i.e. x-ray or MRI) and couple that with the impact on your life, such as missed work. If you have an injury that was confirmed by X-ray or MRI and you missed a significant period of time from work, your chances of succeeding on your case greatly improve.

Insurance: The last piece to the puzzle is the amount of insurance available. Initially a claim will be made against the insurance company of the other driver. Hopefully, the other driver maintained more insurance that the New York State minimum of $25,000.00. If the other driver had a minimal policy, the chances of your case going to trial are dramatically reduced. The more insurance available, the more likely that your case will be tried. If the other driver was uninsured or underinsured, you can also make a claim against your own insurance company. This topic will be the subject of another article.

In conclusion, think of your car accident case in three parts: liability, damages and insurance. If one part is missing or reduced, the chances of your case going to trial are diminished.

Lack of Supervision

Recently the New York City Board of Education was sued when a student was injured in a fight with another student. The injured student claimed that the Board of Education failed to supervise the student who instigated the assault. However, in Espino v. New York City Bd. of Education, the city's board of education established its prima facie entitlement to judgment as a matter of law in a personal injury action brought by a 17-year- old student who was injured during a fight in a school hallway. The summary judgment evidence demonstrated that the supervision provided for students of the plaintiff's age was sufficient, that the attack on the plaintiff was sudden and spontaneous and could not have been prevented by more supervision, and that the board had no prior notice of problems between the plaintiff and his assailants.

Labor law-scaffold cases

One of the most complex and confusing areas of the labor law concerns scaffold cases. Generally speaking a worker injured during a height related accident can bring a claim for negligence. Of course there are many obstacles that must first be overcome. A recent case in the Appellate Division took a look at some of these issue. In Leconte v. 80 East End Owners Corp, a building's owner and managing agent violated the scaffold law, and thus were liable for the injuries of a worker who fell while installing a security system in the building, regardless of whether the worker used one of the building's ladders and fell when a part of the ladder went through a gap in a stairway landing or did not use one of the building's ladders and instead fell from the stairway's railing. Under the latter version of events, the worker's alleged conduct was not the sole proximate cause of the accident, since he was not offered the use of the building's ladders to perform his work and did not know that he could, but chose not to, use the building's ladders. Under the former version of facts, moreover, the worker's allegedly negligent conduct in placing the ladder in a manner that allowed a part of it to go through a gap in the landing was not the sole proximate cause of his injuries.

Slip and Fall-black ice

The Court of Appeals has recognized a possible exception to the prior written notice statute required for bring a personal injury action against the government. In San Marco v. Village/Town of Mount Kisco , the Court found that there was an issue as to whether village created black ice condition upon which plaintiff slipped and fell precluded summary judgment.
The Court of Appeals has held that the "immediacy" test for determining whether the "affirmative creation" exception to the prior written notice statute excused written notification in cases involving hazards caused by a pothole or manhole cover did not extend to cases involving hazards related to negligent snow removal. As such, a village could be liable for a negligent ice condition without receiving prior written notice, if it created the defect or hazard through an affirmative act of negligence. However, a fact issue as to whether the village created the black ice condition upon which the plaintiff slipped and fell precluded summary judgment in the plaintiff's personal injury action against the village.

Hit and run drivers

Recently, the Suffolk County Police Fifth Squad detectives investigated a hit-and-run crash that seriously injured a pedestrian. Police responded to a 911 call from a passing motorist reporting that a pedestrian was lying on the ground on North Ocean Avenue near Vehslage Street in Patchogue on December 11 at 6:07 p.m. When police arrived, they determined that a man had been struck by an unidentified vehicle that fled in an unknown direction. The injured man was transported to Brookhaven Memorial Hospital Medical Center in East Patchogue and was listed in critical condition.

Slip and Fall on Ice-great decision

New York State's highest court has recently decided a case that will be very favorable to plaintiff's injured after slipping on "black ice." In the case, San Marco v. Village/Town of Mount Kisco, a woman who was seriously injured when she slipped on "black ice" in a municipal parking lot was not required to show the municipality had received prior written notice of the hazard for her suit against it to proceed. The lack of prior written notice is often the reason for dismissal of cases such as Ms. San Marco's.
In her case, Ms. San Marco claimed the village created the hazardous condition when its piled up snow that then melted and re-froze over several days. In denying the village's motion for summary judgment, the Court's majority said the municipality's alleged negligence distinguished the case from other prior-notification issues.
"A jury must decide whether San Marco fell on ice created by the Village's snow clearance operation," Chief Judge Jonathan Lippman wrote for the majority. "And relatedly, there are factual issues concerning whether the Village exercised its duty of care to maintain the parking lot in a reasonably safe condition by plowing snow high alongside active parking spaces, and in failing to salt or sand the lot on weekends, despite the fact that it remained open seven days a week."

Gap in treatment

When deciding if a plaintiff's personal injury claim meets the threshold required by law, the Courts will often look to see if the person treated continuously. Unexplained gaps in treatment have led to the dismissal of many claims. Recently, the Court addressed the issue of "gap in treatment" in Abdelaziz v Fazel, 2010 NY Slip Op 08877. There the Court held that the plaintiff's affidavit explained the gap in his treatment. In the statement, the plaintiff explained that he stopped treatment after his no-fault benefits were terminated and he could not afford to personally pay for further treatment (see Black v Robinson, 305 AD2d 438, 439-440; see also Domanas v Delgado Travel Agency, Inc., 56 AD3d 717, 718; Jules v Barbecho, 55 AD3d 548, 549).

Assumption of the risk

It is often to prove negligence in cases where a plaintiff engages in potential dangerous activity such as sporting events, horseback riding, sky-diving and similar events. The Courts have consistently held that most times a plaintiff assumes the risk that he/she may be injured by engaging in such activity. This issue was recently addressed by the appellate courts in Stanislav v. Papp. There the Court held that the defendant did not owe plaintiff a duty to ensure that the horseback riding experience on their date was safe. The plaintiff had experience riding horses and was aware that the risks of falling from a horse or a horse acting in an unintended manner were inherent in the sport.

Police Shooting, Johnson v. City of New York

The Court of Appeals recently held that police officers and city were immune from liability for accidental shooting of bystanders during shootout with armed robbery suspect.The Court held that the fact that police officers who were in pursuit of an armed robbery suspect who had opened fire on them on a public street did not observe two bystanders hiding on the ground behind a sport utility vehicle at the time they exercised their judgment in returning fire did not raise an issue as to whether the officers unnecessarily endangered innocent persons. As such, the officers and the city were immune from liability for the accidental shooting of the bystanders during the exchange of gunfire between the officers and the robbery suspect. The Court reasoned as such given that the officers had a clear view of the suspect when they returned fire, that the officers did not see any bystanders in the area while firing on the suspect, and that the bystanders were not in the line of fire during the shootout.

Day Care Workers sentenced

Judge James McCormack sentenced the owner of Carousel Day School to probation for his role in the death of a toddler at his school. In March 2009, the toddler was given a raw carrot by a Carousel staff member. The child began to choke and efforts to revive her were unsuccessful. Carousel, it's owner, Gene Formica, and it's manager, Kathy Cordaro, were all charged with their involvement with the child's death. The criminal case has now concluded. The attorneys at Foley Griffin Jacobson & Faria, are handling a civil claim arising out of this tragedy.

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.

Notice of Claim

In order to bring a negligence claim against the government, it is necessary to file a notice of claim within a short period after the event that gives rise to the claim. The courts are very strict in interpreting the time period. Recently the Second Department in Werner v. Nyack Union Free School Dist.,(N.Y.A.D. 2 Dept.)held that the request by parents of a minor to file a notice of claim after an 8 month delay was not warranted. The parent's delay of more than 8 months following expiration of the 90-day period after her negligence claim against a school district arose from the student's injuries allegedly sustained by slipping on spilled water on the gymnasium floor. The Court found that this did not warrant leave to serve late notice of the claim. The parent's excuses for the delay were not reasonable. The student incident report and medical claim form prepared by school officials after the accident did not provide the district with actual knowledge of the essential facts of the claim. The district would be substantially prejudiced in its defense upon a grant of leave to serve late notice.

Construction accident

In a recent New York State case in the Second Department, the Court found that there was a tripping hazard caused by mislaid contractors' crowbar. The actions of the defendants constituted premises condition. The crowbar was left on the floor of an office doorway by painters who had ceased their work and were no longer using their tools for that day. The Court found that these actions constituted a "premises condition," triggering the "actual or constructive notice" standard. The crowbar was a mere consequence of the painters' work after a day's work had been completed.

Post accident changes often inadmissible

Many times after a person has been injured due to negligence, changes may occur as a result of the negligence. For instance a property owner can make changes that make his or her property safer. The law wants to encourage this type of behavior. Therefore, in most cases evidence of changes after an accident (also known as "subsequent remedial measures" is inadmissible. A recent case highlighted this rationale. In Alfieri v. Carmelite Nursing Home, Inc. ,(N.Y.City Civ.Ct.)
Litigation - Evidence of subsequent remedial training is inadmissible to show employee's negligence or employer's negligent control.
Evidence of the subsequent remedial training of an employee is inadmissible to show the employee's negligence or the employer's negligent control over the employee, a New York trial court has ruled as a matter of apparent first impression under state law. Consequently, the court ruled, evidence of any post-accident training received by a nursing home employee would be inadmissible to show the nursing home's negligence at the time of an accident in which a 90-year-old resident fell and sustained a hip fracture. Thus, pursuant to the rule that evidence that is inadmissible at trial is also undiscoverable pre-trial, evidence of the employee's post-accident training was undiscoverable in the personal injury action arising from the resident's fall.

Parents responsible for their kids?

What happens if your child intentionally injures someone? Are you responsible civilly for your child's actions? The answer is sometimes. Most often parents are not held responsible for their child's criminal, reckless or negligent behavior. As with any general rule, there are however, exceptions. For instance if your child negligently injures another child with a BB gun given to the child by you,the parent, you can be held liable under the theory of negligent entrustment. Additionally if your child commits an intentional assault, you could be held liable if your child had "prior vicious propensities" and you did nothing about it. The good news for parents is that but for very limited circumstances, you will most often not be responsible for your child's negligent and/or criminal actions.

Sidewalk trip and fall cases

We are often consulted by clients regarding pursuing a claim in connection with a trip and fall on a sidewalk. People commonly wish to purse these claims because significant injuries are generally involved and insurance companies do not offer an appropriate sum of money to settle. The first step in evaluating the claim is to examine the defect that caused the fall. The Courts have repeatedly found that small (a.k.a diminimis) defects are not enough of a hazard to warrant a successful claim. Therefore the defect must be large enough to clear that initial hurdle. The second step would be to examine the local laws regarding sidewalk defects. If the sidewalk is owned by a municipality (and most are) the municipality must receive "prior written notice" of the defect in order to be successful in a claim against the municipality. Since this rarely exists, the final step is to determine if there are any local laws wherein the municipality transfers liability for the care and upkeep of the sidewalk to the adjacent property owner. Assuming there is a transfer of responsibility and liability, a successful claim against the property owner is possible.

Trip and Fall accidents

We often receive calls from clients who have been injured in a trip and fall accident on a sidewalk. For a variety of reasons, these cases can be tough. Like most cases where an injury occurs on someone's property, notice of the defect to the owner of the property is a central issue. Also, the size of the defect is an issue. Recently our Second Department appeals court dismissed a sidewalk trip and fall case against the Town of Riverhead finding that the defect was "trivial." The court took into account the appearance of the subject walkway, the extent of the height differential between the walkway and the adjacent unpaved ground, and the time, place, and circumstances of the accident. In the Riverhead case, the Court held that the defendant established its entitlement to judgment as a matter of law by demonstrating that the alleged defect did not, by reason of its location, the weather conditions, or other relevant circumstances, have any of the characteristics of a trap or snare, and was trivial as a matter of law and therefore not actionable prove liability, that is responsibility for the happening of the accident.

Gunshot Victim

In Kelly v. Norgate Business Associates, a case that originated in the Bronx Supreme Court and went up on appeal, a gunshot victim was able to proceed to a jury trial in his action to recover damages against the building owner and its security company after he was shot in an apartment building lobby. The victim was visiting a friend in the building. When he entered he found the locks broken and the security guard never asked him to sign in. There was a group of 10 to 12 men in the lobby near the guard. When the victim left the the building, a fight broke out and the victim was shot, while the guard did nothing but call police only after shots were fired. The Appellate Division ruled that the victim may recover as a third-party intended beneficiary of the security contract between the building owner and the security company where there was evidence that security officers were to safeguard lives and not just property. It also noted the building owner may also be found liable as a jury may find the assailant was an intruder who entered and exited the building through the broken doors. www.foleygriffin.com

Accident reconstruction expert

It is not uncommon for our attorneys to retain the services of an accident reconstruction expert in car accident personal injury cases. Recently were retained by the family of a woman seriously injured in a car crash. Unfortunately the client had no recollection of the accident. We immediately realized that this posed a significant obstacle in proving negligence on the part of other driver. We contacted and retained an expert who was able to determine that the other driver was speeding and thus our client had a valid case. We were only able to succeed on this matter because we were retained immediately after the accident and were therefore able to conduct a thorough and complete investigation.

Assault victims

Recently we have been retained by clients who have been the victims of assaults. Ordinarily these are difficult cases to prosecute. There are two main issues in an assault case, liability (who was at fault) and damages. If the client was truly victimized by an attacker, proving the defendant's liability may not be too difficult. However, although the client may have suffered serious injuries in the assault, the question remains as to how the defendant will be able to pay any judgment obtained against him. The problem with these cases usually centers around the defendant's lack of money to pay a judgment against him. After looking into the defendant's finances, we will be in a better position to decide if it is worth the effort to pursue a claim against him.

Government claims-Statutes of Limitations

In personal injury law there are "statutes of limitation" that govern the time frame when a claim must be started. An ordinary negligence claim usually must be commenced within three years of the accident. Of course there are exceptions to the three year time limit. One very import exception involves claims against the government. If a person is injured due to the negligence of a government worker/agency, etc., the government is entitled to receive a "Notice of Claim" within 90 days of the occurrence. This provides the government with the added benefit of being able to quickly investigate the validity of a claim. Therefore it is very important to seek legal advise immediately after a claim arises. This will allow the attorney to investigate whether or not the government was in any way responsible for the accident and thus entitled to a "Notice of Claim."

Car Accident-Police Reckless Conduct

On occasion, a police or emergency vehicle is involved in a car accident while responding to a police, fire or medical crisis. These cases are different than the ordinary car crash involving non-police vehicles. In particular, the standard of proof necessary to prove a case against a police officer is greater than that of an ordinary motorist. Police are given what is known as a "qualified privilege" meaning they can only be sued if their conduct rises to the level of "reckless disregard" of the safety of others. This is harder to prove than the standard of negligence required in an ordinary car accident. Recently a police officer was found responsible for an accident when it was determined that his conduct in stopping short on the L.I.E. contributed to the happening of an accident. The case, known as Tutrani v. County of Suffolk, was recently decided in the Appellate Division, Second Department of our State.

Dram Shop cases

In New York State there exists a social host law. Some people may call this a "dram shop" case. Under certain circumstances it is possible to bring a claim against a host (bar, restaurant, homeowner) if the host serves alcohol to someone visibly intoxicated and that intoxicated person injures a third party. These cases are very fact specific and a thorough investigation is required at the outset.

Worker's Compensation

The general rule in New York State is that an employee cannot sue his/her employer for injuries sustained on the job. The reason for this is that our state legislature has set up a mechanism for an injured worker to obtain compensation for injuries under the Worker's Compensation law. Thus, since the injured worker can recover under the Comp law, he/she is barred from suing the employer directly. However, any case involving an injured worker should be closely examined by an attorney to determine if a "third party" non-employer may be responsible for the worker's injuries. Under those circumstances it is entirely possible to bring a lawsuit against the non-employer for their negligence in causing the worker's injuries. This includes construction accidents, work site accidents, and as well as motor vehicle accidents.

Injured illegal immigrant can sue

Recently a local court upheld the right of an illegal immigrant to sue following a construction accident. In the Manhattan case, a Judge ruled that the plaintiff's case should not be dismissed even though the plaintiff was an illegal immigrant. The Court found that the plaintiff's illegal status was "irrelevant." The Court's ruling was clearly a victory for immigrant's rights. The Court found that the defendant employer of illegal immigrants cannot receive the benefits of paying illegal immigrants lower wages and then use the immigrant's illegal status against them when faced with a lawsuit. The Judge found that it was wrong for the firms to hold deportation over the heads of immigrant workers injured on the job

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]).