Dr. BK and Dr. JM ...cont

December 18, 2014,

The decedent underwent three open heart surgeries within a period of less than twenty-four hours. Evidence was offered that the defendant's malpractice necessitated the second and third surgeries. Hospital records record a pain level of 10 following the second operation. Even when sedated Mr. AT was restless and agitated and required wrist restraints. During his ensuing five-month hospitalization, Mr. AT experienced multiple blood transfusions, six episodes of pneumonia, a partial lung collapse, requiring a bronchoscopy, intestinal bleeding, urinary tract infections, decubitus ulcers, sepsis and hearing loss. He underwent surgery for his bed sores. Antibiotics administered to Mr. AT for infection rendered him comatose at times. As a result of the use of respiratory tubes, he was unable to speak at times and communicated with his wife in writing. In several of his notes he expressed that he was in pain and discomfort, and in fear of dying.

The amount of damages to be awarded to the plaintiff for conscious pain and suffering and loss of services is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation. Here, the jury's award for conscious pain and suffering deviates materially from what is reasonable injury compensation to the extent that it exceeds $1.2 million

Upon this record, the jury's award for loss of services deviates materially from what is reasonable compensation to the extent that it exceeds $200,000.00.

Finally, Dr. BK argues that the jury's award of $780,000.00 in wrongful death pecuniary loss was not proven with reasonable certainty. Specifically, he maintains, there was no evidence offered of loss of earnings, loss of guidance, loss of inheritance or loss of household services.
Here, plaintiff offered evidence as to loss of services and loss of parental guidance, and the jury rendered an award only as to loss of services.

As previously noted, the decedent, a 68-year-old retiree suffered from polycythemia vera, congestive heart failure, kidney stones and high blood pressure prior to his admission to Downstate Hospital. Mrs. AT testified that her husband, who was from the Carribean, did all of the baking and all of the West Indian cooking for the family. Each Saturday he would make the West Indian bakes, and on Thanksgivings he prepared the meal for 70 to 80 guests. He cooked when he came home from work, which was after midnight. Family birthdays, therefore, were celebrated at 2 a.m. The decedent's age, health, life expectancy, relationship to his wife and family and disposition to serve them were all proper considerations for the jury. Thus, while the plaintiff presented sufficient evidence to establish her claim, the evidence offered by the plaintiff does not support the jury's injury award for pecuniary damages to the extent that it exceeds $75,001.00.

Accordingly, it is ordered that the motion is granted to the extent that a new trial as to damages is granted for the decedent's conscious pain and suffering, plaintiff's past loss of services and society, and wrongful death pecuniary damages for loss of services, unless within 30 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for the decedent's conscious pain and suffering from the principal sum of $6 million to the principal sum of $1.2 million, to reduce the verdict as to damages for the plaintiffs past loss of services and society from the principal sum of $13 million to the principal sum of $200,000.00, and to reduce the verdict as to damages for wrongful death pecuniary damages for loss of services from the principal sum of $780,000.00, to the principal sum of $75,000.00; and it is further ordered , that the motion is otherwise denied.

Dr. BK and Dr. JM ...cont

December 16, 2014,


CPLR 1601(1) does not address situations, such as here, where the alleged non-party tortfeasor is the State of New York which cannot be joined as a co-defendant in the Supreme Court. The prevailing view, however, is that apportionment against a state joint tortfeasor, subject to suit in the Court of Claims, is appropriate in a Supreme Court action.
In addition, CPLR 1601 (1) permits a state defendant, in the Court of Claims, the benefit of Article 16 apportionment against a non-state, joint tortfeasor by exempting the State from the rule which excludes a non-party's share when jurisdiction cannot be obtained over that non-party. In this case, the plaintiff has sued Downstate Hospital in the Court of Claims and the hospital in that action has raised as an affirmative defense the protection of CPLR, Articles 15 and 16. Thus, the state hospital may well seek apportionment against Dr. BK in the pending Court of Claims action.

It is noted that when two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Although the original wrongdoer is liable for all the proximate results of his or her own tortious act, including aggravation of injury by a successive tortfeasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct. However, in order for a defendant to be considered an independent and successive tortfeasor and therefore liable only for such aggravated or additional injury caused by it there must be demonstrated two separate injuries, with the second injury not necessarily resulting from the first, and further, there must be demonstrated the capability of delimiting the injures caused by the successive tort-feasor.

Here plaintiffs Bill of Particulars, which was served on Downstate Hospital prior to dismissal of her claims against Downstate in this action, alleges that the hospital caused the following injuries: death; infections; sepsis; multiple surgeries; ulcers; emphysoma; respiratory failure; tracheostomy; infected nephrostomy site; prolonged tracheal intubation; chronic renal insufficiency; thrombocytopenia; multiple blood transfusions; disseminated intravascular coagulopathy; respiratory distress; pneumonia; prolonged mechanical ventilation; multiple decubitus ulcers; shock; acute renal failure; hemorrhage; severe pain; mental anguish; anxiety; loss of enjoyment of life; fear of impending death; cardiopulmonary arrest; fevers; anxiety; mental anguish; emotional distress and loss of enjoyment of live.

During the trial against Dr. BK plaintiff maintained that the decedent's five month hospitalization and death resulted from the negligent surgeries performed by Dr. BK Dr. JM testified that the second operation was a substantial factor in the decedent's prolonged hospitalization due to lung damage. There was evidence presented that pneumonia was a complication resulting from the use of a ventilator required as a result of the surgically caused lung injury. Plaintiffs expert also opined that multiple blood transfusions during and following the surgeries exposed the decedent to the risk of infection.

Dr. H opined that prolonged hospitalization and prolonged use of a respirator caused episode of pneumonia, the need for a bronchoscopy, urinary obstruction requiring a tube to drain the kidneys, urinary tract infections, sepsis shock and ultimately death. Dr. H testified that the infection which resulted in sepsis, shock and death, were caused by three bacterial organisms which were most likely associated with hospital infections. Dr. H further testified that systemic inflammatory response syndrome, which induced respiratory distress, was associated with injuries to the lungs during the heart surgeries. Dr. BK treated the decedent in the cardio-thoracic intensive care unit September6, 2004, at which time he was transferred to the medical intensive care unit. He died six days later on September 12, 2004. Thus, upon this record it cannot be said that damages for pain and suffering are divisible as between Dr. BK and Downstate. Accordingly, Dr. BK was entitled to apportionment against Downstate in this action.
Next, with respect to the jury's damages award, Dr. BK argues that the awards in the amount of $6 million for pain and suffering and $ 13 million for loss of services deviate materially from what would be reasonable compensation, and that the jury's $780,000.00 award for wrongful death was not proven with reasonable certainty.


To Be Cont...

Dr. BK and Dr. JM ...cont

December 14, 2014,

Dr. JM, a board certified cardiac surgeon and professor in heart surgery at the University of Minnesota, testified regarding his training in Central America, Germany and Minnesota, his more than 120 publications on the topic of cardio-thoracic surgery and related subjects, and his participation in approximately 6,000 such surgeries. Thus, Dr. JM, by study, training, observation and experience was qualified to offer an opinion as to the relevant standard of care.

Moreover, the defendant's present challenge to the qualifications of Dr. JM was not preserved for review by timely objection. In any event, the contention lacks merit as Dr. JM possessed more than adequate qualifications to render an opinion and any alleged lack of skill or expertise on his part was merely a factor to be considered by the jury in weighing his testimony.

The defendant next argues that the injury plaintiff failed to establish, prima facie, that he departed from the accepted standard of care in the manner in which he inspected the decedent's lung for bleeding at the conclusion of the bypass surgery. This argument, also, is rejected. Dr. JM testified that it did not appear from the records that Dr. BK inspect id the apex area of the upper left lobe of the lung for bleeding or leakage of air at the conclusion of the bypass surgery, and that this constituted a departure from the accepted standards of care. According to Dr. JM, the significance of doing such an inspection is that it would have provided Dr. BK with the opportunity to address the bleeding or leakage as he did later and would have avoided the need for a second or third surgery.

There was testimony by Dr. BK and Dr. JM regarding excessive bleeding from the chest tube following completion of the bypass surgery. In addition, testimony was offered by Dr. BK and Dr. JM regarding bleeding from the apex of the lung, in the area of adhesions where the mammary artery was harvested, upon re-opening the decedent's chest cavity to perform the second surgery. In view of this evidence the jury was free to reject the testimony of Dr. BK that he conducted an appropriate inspection for bleeding and leaking at the conclusion of the bypass surgery.

Dr. BK argues that the exercise of his professional judgment in testing his staple repair, luring the second surgery, was neither a departure nor a proximate cause of injury to the decedent. Essentially, he contends that plaintiffs criticism of his testing of the staple line during he second surgery derives solely from the conclusion of her expert that because the staples failed, more stringent testing by him should have been undertaken.

At trial Dr. BK explained that during the second surgery he excised defective tissue from the left upper lobe of the lung where there was excessive bleeding, cauterized the area and closed/connected the tissue with surgical staples. He then tested his repair by irrigating the area with fluid and inflating the lung by means of a ventilator in use during the surgery. However, plaintiffs expert, Dr. JM, offered testimony that the level of pressure provided by a standard ventilator used during surgery would have been inadequate to test the viability of the stapled repair. Dr. JM indicated that in the pleura, or lung tissue, staples pull through and, therefore, 30 centimeters of pressure was required to adequately test the repair. This was especially true in Mr. AT's case, Dr. JM indicated, because of his poor lung tissue. Because the lung tissues were bad the metal staples tore through and Mr. AT continued to bleed, necessitating a third procedure. Dr. JM testified that had the appropriate testing been conducted during the second surgery, the defect would have been discovered and remedied by reinforcing the sutures with pericardium strips, a technique successfully employed during the third surgery. The jury, therefore, was free to conclude that, as testified to by plaintiffs expert, if the lung had been properly tested, the defect discovered and remedied during the second surgery, the third surgical repair would not have been necessary.

In an action for personal injury a joint tortfeasor whose proportionate share of fault is 50 percent or less is liable for the plaintiffs non-economic loss to the extent of its proportionate share. Dr. BK maintains that he was entitled to have the jury apportion fault between him and the non-party Downstate Hospital.

CPLR 1601 [1] requires that the equitable shares of non-party joint tortfeasors be included in a determination of the relative culpability of the named defendants unless the claimant's is unable, with due diligence, to obtain jurisdiction over the non-party tortfeasors. The burden of demonstrating inability to obtain jurisdiction over the non-party is on the claimant. Upon such a showing, the equitable share of the non-party will not be considered. One apparent purpose of this provision is to enhance plaintiffs recovery only when it is jurisdictionally impossible to join all of the tortfeasors in the New York action.

To Be Cont...

Dr. BK and Dr. JM

December 12, 2014,

In this action for medical malpractice and wrongful death, defendant JH. Dr. BK seeks an order, pursuant to CPLR 4401, 4404 and 5501, setting aside a jury's liability verdict in favor of plaintiff and award of damages totaling $19,780,000.00

Dr. BK alleges that (a) plaintiff failed to make a prima facie showing of medical malpractice; (b) the liability verdict is against the weight of the evidence; c) a new liability trial is required in order to apportion fault against Downstate Hospital 1; (d) the interest of justice requires a new trial; (e) the awards for pain and suffering and loss of services are excessive and not supported by the evidence; and (f) the award for wrongful death, pecuniary loss, was not proven with reasonable certainty.

Plaintiff opposes the motion. On April 7, 2003 plaintiffs decedent, AT, was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. Within a period of less than 24 hours, Dr. BK performed three open heart surgical procedures on Mr. AT. At trial, plaintiff alleged negligence by Dr. BK in connection with these surgeries, and Dr. BK claimed that hospital staff was negligent in the monitoring and treatment of various infections and complications during Mr. AT' ensuing five-month hospitalization. Mr. AT died on September 12, 2004, without leaving the hospital.

The jury determined that Dr. BK departed from good and accepted medical practice in failing to inspect Mr. AT's lung injury for bleeding at the conclusion of the first surgery and in failing to properly test his staple line repair during the second surgery. The jury awarded $6 million for Mr. AT's conscious pain and suffering, $13 million to Mrs. AT for the loss of Mr. AT's services and society prior to his death, and $780,000.00 in pecuniary damages on the wrongful death claim. The jury declined to make an award for wrongful death, loss of guidance, on behalf of Mr. AT's adult children.

In connection with his challenge to the liability verdict, Dr. BK first argues that Dr. JM, plaintiffs expert, was not qualified to opine as to the standard of care governing cardio-thoracic surgeons in New York State. This contention is without merit.

The prevailing standard of care governing the conduct of medical professionals, as articulated by the Court of Appeals in Pike v. Honsinger, requires that a physician exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices, and which is ordinarily regarded by those conversant with the practices as necessary to qualify [the doctor] to engage in the business of practicing medicine or surgery. Although malpractice jurisprudence has evolved to accommodate advances in medicine, the Pike standard continues to serve as the beginning point of any medical malpractice analysis.

To Be Cont...

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AC Const. Co. Inc. ..cont

December 10, 2014,

RS testified to the effect that he is the owner/president of AC Const. Co. Inc. Collaborative Construction Company, a New York corporation founded in 1997 to build high-end residences of modern architectural design primarily on the eastern end of Long Island. AC Const. Co. Inc. entered into a contract or agreement with DL to erect a one-family house at 611 lazy Point Road, Amagansett and was the general Contractor for the project and hired subcontractors for the job site. Mr. DL did not retain any authority to hire the subcontractors and did not supervise any of the work that was done at the job site from when the job was started through July 22, 2005. SD was the foreman for AC Const. Co. Inc. at the site but was on vacation on the date of the accident. RS did not know who the foreman was who replaced SD on the date of the accident, but stated the substitute foreman could make a decision about injury or call and get a decision, but that anyone other than a laborer would be able to remove a cross bar of scaffold. He did not ask any of his employees whether or not they were requested to remove the scaffold. He held safety meetings or his employees, but the subcontractors held their own safety meetings. He did not go the site on a daily basis, out typically went about two to three times a week. LGP was the concrete subcontractor on the site. AC Const. Co. Inc. had laborers specifically assigned for the purpose of cleaning up and policing the job site. He thought pipe scaffolding had been set up for some trim work around the windows or for handrail work but he did not know if it was affixed to the ground. He had hired Forge and while Forge was on the site, AC Const. Co. Inc. did not direct or control any of the work that was being done by the Forge workers and did not discuss the means or authorize me method of digging the trench. Mr. SD was not responsible for the instructions of any of the workers from forge concerning the means and authorization to dig the trenches. He never directed or controlled the work of RM.

The first cause of action is premised upon the alleged negligence of the defendants in causing injury to the plaintiff. In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant's negligence were a substantial factor, it is considered to be a proximate cause even though other substantial factors may also have contributed to plaintiffs injury. In order to establish the third element, proximate cause, the plaintiff must show that defendant's negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party
It is determined that the defendant AC Const. Co. Inc., as the general contractor, had a duty to maintain a safe working environment at the work site. AC Const. Co. Inc. has not demonstrated prima facie entitlement to dismissal of the cause of action premised upon negligence in that there are factual issues concerning whether it breached that duty and was negligent in supervising the work site and in not providing someone with authority at the site to move the scaffolding when asked by the plaintiff to enable him to dig the trench on the date of the construction accident. There is further factual issue concerning whether AC Const. Co. Inc. was negligent in permitting the unused concrete debris to remain at the construction site, and whether such debris impaired the plaintiffs ability to safely perform his job thus causing injury to the plaintiff.


To Be Cont..

AC Const. Co. Inc.

December 9, 2014,

In this action the injury plaintiff, RM seeks damages for personal injuries allegedly sustained on July 22, 2005 while working as an employee of Forge Heating and Air Conditioning at the premises located at 611 Lazy point Road, Amagansett, New York. It is claimed that AC Const. Co. Inc. was the general contractor at the site pursuant to a contract entered into with DL, the owner of the premises under construction. Liability is premised upon negligence and the alleged violation of New York State Labor Law §§ 200, 240(1) and 241(6) and the Industrial Code of the State of New York 12 NYCRR sections 23-1.5; 23-1.70); 23-2.1; and 23-2.30; and Article 1926 of the Rules and Regulations of Occupational Safety and Health Administration.

The defendants seek an order granting summary judgment dismissing the complaint on the basis that the plaintiff cannot establish negligence and in that DL qualifies for the single family home exemption relative to New York State Labor Law §§ 200, 240(1) and 241 (6). In support of the motion the defendants have submitted an attorney's affirmation; a copy of the pleadings, answer and bill of particulars; and copies of me deposition transcripts of RM dated August 14, 2008 and RS dated August 14, 2008

The plaintiff opposes this motion submitting an attorney's affirmation and the affidavit of RM dated April 28, 2009.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to Judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case, to grant summary judgment it must clearly appear that no material and triable issue of fact is presented Sillman v Twentieth Century-Fox Film Corporation. The movant has the initial burden of proving entitlement to summary judgment failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing paper. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact. The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. Summary judgment shall only be granted when there are so issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of injury law.

RM testified to the effect that in July 2005 he was employed by Forge Heating and Air Conditioning (Forge) as an HVAC mechanic for about eight years and was also a free lance captain for boats up in seventy feet in length. On July 22, 2005 he was working at the premises located at Lazy Point Road, Amagansett for Forge where he had been working on and off for about two months. On that day he was running line sets for the air conditioning and was digging a trench approximately one hundred twenty feet long, eight inches wide and two feet deep in which the line sets were to be encased in PVC and buried. The trench started on the side of the house where there was a mechanical room and was dug by using shovels and a rotary hammer to dig through the dirt and construction debris. He described the construction debris as left over, hard packed concrete scattered all over the place through which they cleared a path.

A scaffold set up by the house was in his way when he was digging the trench, so he went inside the house to speak to the employees of the general contractor to see if the four point scaffolding could he moved, but was told there was no one to move it. He went back outside and was standing in the trench digging under the scaffold just past the cross members and a foot underneath it and was leaning over to avoid the cross member while he was digging. As he picked up a scoop of dirt and debris with the shovel, he rotated to his left to dump it and his back went out. He sat down on the edge of the trench for about ten minutes when a co-worker came by and he told him that he blew out his back. He described the premises as a single-family dwelling. Although workers from the general contractor were at the site on the date of his injury, the foreman was rot. He did not know who the owner of the premises was but stated that the owner did not direct or control the way he did his job.


To Be Cont...

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A Kings Car Accident Lawyer...cont

December 8, 2014,


The plaintiff has failed to proffer competent medical evidence that he sustained a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

At his deposition, the plaintiff acknowledged that he missed less than 90 days of work as a result of the subject motor vehicle bus accident; specifically, he acknowledged that he missed seven to eight weeks from work. To establish this prong of the statute, plaintiff's doctor would have had to inform him that he could not return to work-that is the prerequisite for a medically determined injury. There is no such evidence in any of his medical reports. The important element in establishing injury under the 90/180 day category is that the injury be medically determined. Absent some objective proof of disability to perform the activities of daily living for 90 out of 180 days following an accident, there is no showing of a serious injury from mere allegation. Plaintiff also contends that he has suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system.

Plaintiff has overcome the motion with regard to these two categories of injury. The radiologists, of course, have no opinion on the issue of causation. The doctors set forth the requisite language establishing their opinion that plaintiff's injuries were caused by the accident. Plaintiff testified at his EBT to visiting his primary care physician, several times each year through 2007 to the present and presumably prior to 2007 but there is no affirmation from him. His opinion on the issue of causation would be helpful, but it is not necessary.
Plaintiff returned to work as a limo driver 6-8 weeks after the accident and is still working. He complains he still experiences pain. The plaintiff has demonstrated significant restrictions in the range of motion of his left knee and his cervical and lumbar spine. As such, he has overcome the motion with regards to whether he has suffered a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system, and has raised a triable issue of fact as to these two prongs of the statute.
In opposition to the motion for summary judgment, the plaintiff has presented ample evidence of specific and documented restrictions in his ranges of motion, both from a recent examination by his doctor and from tests which were contemporaneous with the subject accident. He has also adequately addressed the issue of the prior accidents. The evaluation of competing evidence (the battle of the experts) falls within the province of the trier of fact at trial, and it is not appropriate for the Court to dismiss the complaint on a motion for summary judgment.

The Court finds that the evidence submitted by the plaintiff has raised a triable issue of fact with regard to the categories of 1) permanent consequential limitation of use of a body organ or member; and 2) a significant limitation of use of a body function or system. The Court finds that plaintiff has provided an adequate explanation for his gap in treatment, if there is in fact a gap. After four months of treatments, he became the primary caregiver for his mother. He sees his primary care physician and his orthopedist on an as-needed basis, approximately once per month.

For the reasons set forth herein, the defendants' motion is denied.

A Kings Car Accident Lawyer...cont

December 5, 2014,


The affirmation of the doctor’s, dated June 7, 2010, states he first evaluated the plaintiff on March 17, 2009, four days after the accident. Range of motion testing of the cervical spine revealed flexion to 20 degrees (45 normal); extension to 25 degrees (40 normal); left rotation to 35 degrees (40 normal); right rotation to 25 degrees (40 normal); left lateral flexion to 25 degrees (40 normal); right lateral flexion to 20 degrees (40 normal). Range of motion testing of the lumbosacral spine revealed flexion to 50 degrees (90 normal); extension to 15 degrees (30 normal); left rotation to 10 degrees (30 normal); right rotation to 15 degrees (30 normal); left lateral flexion to 20 degrees (30 normal); right lateral flexion to 25 degrees (30 normal). Examination and range of motion testing of the left knee revealed flexion to 95 degrees (normal is 120) and extension to-10 degrees (normal is 0).

The doctor states he conducted EMGs of plaintiff on 4/20/09 and the findings were consistent with C5-7 cervical radiculopathy. He conducted EMGs on 5/7/09, with findings consistent with L5-S1 lumbar radiculopathy. He states he also treated plaintiff after an accident in a department store (Macy's) in October, 2007, when his right knee struck a sharp corner of a table. Plaintiff was treated primarily for his right knee, though there was also slight neck and lower back pain. Plaintiff's left knee was unaffected by that injury. He states that at his last examination of plaintiff related to that accident, on January 7, 2008, plaintiff had a full range of motion in his cervical and lumbar spine. Specifically, his reports that range of motion testing of the cervical spine revealed flexion to 45 degrees (45 normal); extension to 40 degrees (40 normal); left rotation to 40 degrees (40 normal); right rotation to 40 degrees (40 normal); left lateral flexion to 40 degrees (40 normal); right lateral flexion to 40 degrees (40 normal). Range of motion testing of the lumbosacral spine revealed flexion to 90 degrees (90 normal); extension to 30 degrees (30 normal); left rotation to 30 degrees (30 normal); right rotation to 30 degrees (30 normal); left lateral flexion to 30 degrees (30 normal); right lateral flexion to 30 degrees (30 normal). He avers that, to the extent that plaintiff had any limitations to his neck and lower bad after the October, 2007 Macy's accident, or any prior accident, his neck and back were healed well before the March, 2009 auto accident. He states he never treated plaintiff for the other 2007 accident at Costco. Plaintiff says he went to the doctors for two months of chiropractic treatment for the Costco incident and three months for the Macy's incident. Plaintiff then says in his affidavit that he was confused about this, and acknowledges he did not seek treatment for the Costco incident, although he brought lawsuits for both the Costco and the Macy's injury.

The doctor avers that, as a result of the March 2009 accident, plaintiff sustained a permanent and significant limitation and restriction of the range of motion to his cervical spine, lumbar spine and left knee. He asserts that he reviewed the MRI reports (not the fi" ns) and the results are not degenerative in nature. However, his summary of the MRI reports is hearsay, and may not be considered by the Court. He never saw plaint ff before the accident. Further, defendant's IME doctors do not allege that plaintiff has any degenerative condition. The affirmation of the orthopedist, dated June 21, 2010, states he first evaluated the plaintiff on August 4, 2009, and then again on September 2, 2009, October 13, 2009, and April 26, 2010. He too never saw plaintiff before the injury. He states his most recent examination of plaintiff was on April 26, 2010. On that date, range of motion testing of the cervical spine revealed flexion to 50 degrees (50 normal); extension to 60 degrees (60 normal); left gaze of 80 degrees (90 normal); right gaze of 80 degrees (90 normal); left lateral bending to 25 degrees (30 normal); right lateral to 25 degrees (30 normal). Range of motion testing of the lumbosacral spine revealed flexion to 50 degrees (90 normal); extension to 20 degrees (40 normal); left lateral bending to 25 degrees (30 normal); right lateral bending to 25 degrees (30 normal). Examination and range of motion testing of the left knee revealed flexion to 135 degrees (normal is 140). He opines that, as a result of the accident, plaintiff sustained a permanent and significant limitation and restriction of the range of motion to his cervical spine, lumbar spine and left knee.


To Be Cont...

A Kings Car Accident Lawyer...cont

December 2, 2014,


The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

Defendants contend the complaint must be dismissed because plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102(d) which provides: "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Where a motion for summary judgment is predicated on a determination of "serious injury "the moving party has the initial burden of submitting sufficient evidentiary proof in admissible form to warrant a finding that the plaintiff has not suffered a "serious injury ". Defendants' evidence, comprised of experts' affirmations, supports the conclusion that plaintiff did not sustain a "serious" injury, and thus defendants have met their prima facie burden of proof.

The Plaintiff then has the burden of overcoming the motion. Plaintiff opposes the motion. In his affidavit (Exhibit E), plaintiff states that as a result of the accident he still has pain in his neck, lower back and left knee. He does not mention his shoulder. He states that he began treating with his doctor shortly after the accident, and received treatment approximately two or three times a week for approximately three or four months. He also treated with an orthopedist, and his personal physician. He was referred for MRIs. He states that he stopped consistent treatment after four months because his mother was ill and he needed to care for her. However, he states that he continued to treat with them every month or two. He says that as a result of the accident, he can no longer play basketball or run and has difficulty walking, driving, sitting, sleeping, standing up, and Lifting his client's luggage. Plaintiff states he missed approximately seven to eight weeks of work as the result of the accident.


To Be Cont...

A Kings Car Accident Lawyer

November 30, 2014,

A Kings Car Accident Lawyer said that, defendants move for summary judgment dismissing plaintiff’s action on the grounds that he did not suffer a "serious injury" as defined by § 5102(d) of the NYS Insurance Law. Plaintiff opposes the motion. Plaintiff claims he sustained personal injuries as a result of an automobile accident on March 13, 2009, at the corner of Fort Hamilton Parkway and 65th Street in Kings County, when his vehicle was hit in the rear by a vehicle owned and operated by defendants respectively. Plaintiff states he later sought treatment from several doctors and subsequently commenced the within negligence action against defendants. Plaintiff claims (Bill of Particulars) he has suffered injuries including cervical sprain with herniated disc and radiculopathy, lumbosacral sprain with disc bulges and radiculopathy, and internal derangement of the left knee. Plaintiff was 45 years old at the time of the accident. Examinations Before Trial and Independent Medical Examinations of the plaintiff have been conducted.

A Kings Spinal Injury Lawyer said that, as an initial matter, plaintiff claims that defendant's motion was not timely made. Plaintiff filed his Note of Issue on February 1, 2010. Defendants filed a prior motion for Summary Judgment on April 21, 2010, within the sixty-day time limit provided for in the Uniform Civil Term Rules for the Supreme Court, Kings County. Defendants then filed this "Amended Motion" on June 10, 2010. The difference between the two motions is that the "Amended Motion" adds the Independent Medical Examination report of a radiologist. On August 19, 2010, the date on which this motion was marked submitted, defendants were asked by the Court to withdraw their first motion to avoid confusion, as there were two motions for the same relief. Plaintiff is correct that the amended motion is late, and that defendants' papers do not offer a showing of good cause for their untimeliness (CPLR 3212(a). As defendants' original motion was timely, the court will consider the motion, but not the radiologist IME report, which was first included in the amended motion. In hindsight, the court should have marked the first motion "submitted" and denied the second one as both late and duplicative.


To Be Cont...

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Plaintiff disclaimed coverage by letter dated June 16...cont

November 27, 2014,

I was the only who witnessed the fall. She tripped on the hoses and fell forward on her hands there was no sign of injury and I helped her up. She walked away without asking for an ambulance. About an hour later she came back and asked for my name. At that time she told me that she had injured her arm and had seen a doctor. After she left I went out and took pictures of the hoses and the cones. After not hearing anything from the woman, I thought she was not going to make a claim, and did not think it was necessary to report it to my broker. Plaintiff disclaimed coverage by letter dated June 16, 2008, alleging that respondent failed to give timely notice of the claim. Plaintiff alleged that T&S was aware of the occurrence giving rise to the underlying action on about October 23, 2007, yet failed to notify them until May 21, 2008.

The issue in this construction case is whether plaintiff’s motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent on the grounds that it failed to provide timely notice of the claim in violation of the policy terms should be granted.

CPLR § 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant's papers justify holding, as a matter of law, "that the cause of action or defense has no merit." It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant's entitlement to judgment as a matter of law. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact. When there is no genuine medical issue to be resolved at trial, the case should be summarily decided.

The record shows that T&S should have reasonably anticipated that a claim would be asserted. The Vice-president saw complainant fall in front of his premises; complainant came back an hour later to request insurance information and received a business card from the purported owner after claiming that she had just come from seeing a doctor, and was in pain as a result of the fall. The witnessing of the fall by the Vice-president and the statements of the complainant made immediately after the accident and the statements made an hour later when she returned, should have reasonably alerted the insured that a claim was possible.

The insured claims that it reasonably believed in its non-liability with respect to the alleged incident, because it was not involved in any activities at the loss location and were not responsible for any alleged back injury, and therefore had no awareness of any liability with respect to Wiesel's accident. However, the relevant legal standard is "not whether the insured believes he will ultimately be found liable for the injury, but whether he has a reasonable basis for a belief that no clam will be asserted against him".

This Court agrees with Tower that notice of the occurrence was untimely as a matter of law. Tower established that its insured, respondent failed to report the incident for nearly seven months. In response, respondent failed to demonstrate that a reasonably prudent person, upon learning of the incident, would have a good faith, objective basis for believing that litigation would not be commenced. Having failed to do so, the insured is entitled to summary judgment in its favor declaring that it had no duty to defend or indemnify respondent.

Accordingly, the court held that the motion of plaintiff for summary judgment on its first cause of action seeking a declaration that it is not obliged to provide a defense to, and provide coverage for, the respondent in the personal injury action is granted; and it is further adjudged and declared that plaintiff herein is not obliged to provide a defense to, and provide coverage for, the respondent in the said action pending in Kings County. It is further ordered that the branch of plaintiff's motion for a default judgment against the other defendants in this action is rendered moot.

Plaintiff disclaimed coverage by letter dated June 16

November 26, 2014,

A Kings Construction Accident Lawyer said that, this declaratory judgment action arises from an incident on October 23, 2007, in which complainant allegedly tripped and fell over a hose that lay across the sidewalk adjacent to the premises at 1911 Avenue M, Brooklyn, New York ("the Premises") and sustained bodily injuries. Thereafter, she commenced a personal injury suit pending in the Supreme Court of the State of New York, County of Kings ("the underlying action"). Plaintiff, Insurance Company now submits this motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent Ton the grounds that it failed to provide timely notice of the claim in violation of the policy terms.

A Kings Back Injury Lawyer said that, plaintiff Insurance Company issued a commercial general liability insurance policy to respondent for the subject premises. The policy conditions coverage under the general liability part on receipt of prompt notice of an occurrence or offense that may give rise to a claim. Policy form CG 00 01 10 01, at Section IV - Commercial General Liability Conditions, at paragraph 2 states in relevant part: 2. Duties in the event of Occurrence, Offense, Claim or Suit a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured person and witnesses; and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense. "Occurrence" is defined in Section V - Definitions as follows:

"Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

A Kings Medical Malpractice Lawyer said that, according to the allegations in the underlying action, the complainant sustained personal injuries when she tripped and fell over a hose laying across the sidewalk adjacent to the insured's premises. Complainant alleges that respondent and others were negligent in the ownership, maintenance, control and/or supervision of the wires and/or hoses that lay across the aforementioned sidewalk. Plaintiff alleges that respondent forfeited its right to coverage under the policy by waiting seven months before reporting the incident to them, in violation of the policy condition that insured give notice of a claim "as soon as practicable." On May 21, 2008, approximately seven months after the occurrence took place, plaintiff received first notice of the incident by receipt of a facsimile from vice-president of Respondent Corporation, forwarding a copy of the underlying summons and complaint.

A Kings Construction Accident Lawyer said that, on June 4, 2008, plaintiff, through its claims examiner, discussed the facts of the claim with the Vice-President. Additionally, he gave a sworn statement to the Company who was retained by plaintiff to investigate the claim. According to his statement: I saw when the woman fall. I was on the sidewalk.


To Be Cont...

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