A Kings Workers Compensation Lawyer

July 2, 2015,

“An insurer's duty to defend is broader than its duty to indemnify, such that an insurer may be obligated to defend its insured even if, at the conclusion of an underlying action, it is found to have no obligation to indemnify its insured”. “An insurer must defend its insured whenever the allegations of a complaint in an underlying action ‘suggest a reasonable possibility of coverage’. The duty to defend an insured is not triggered, however, “when the only possible interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion”. “An exclusion from coverage ‘must be specific and clear in order to be enforced’, and an ambiguity in an exclusionary clause must be construed most strongly against the insurer”. “However, the plain meaning of a policy's language may not be disregarded to find an ambiguity where none exists”.

Here, the plain meaning of the employee exclusion invoked by defendant Insurance Company is that the policy does not provide coverage for damages arising out of bodily injury sustained by an employee of any contractor hired by or for any insured in the course of the employee's employment. In the plaintiff's complaint in the main action, he alleged that he sustained bodily injury in the course of his employment for Contracting Corp., an entity he alleged was hired to perform work on the construction project by either Fabian, an additional insured under the policy, or defendant, the named insured of the policy. The only possible interpretation of these allegations is that the factual predicate for the plaintiff's claim falls wholly within the employee exclusion. In opposition to Utica's prima facie establishment of its entitlement to judgment as a matter of law, Fabian failed to raise a triable issue of fact. Accordingly, the policy precludes coverage to Fabian and AG Masonry for the injuries allegedly sustained by the plaintiff, and the Supreme Court should have granted that branch of Utica's motion which was for summary judgment declaring that it is not obligated to defend and indemnify the defendants in the main action. Defendant Insurance Company’s remaining contention is not properly before the Court and, in any event, has been rendered academic in light of our determination.

Since the third-party action is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that Utica is not obligated to defend or indemnify Fabian and AG Masonry in the main action of personal injury appeal dismissed.

Accordingly, the court held that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the third-party defendant Utica First Insurance Company which was for summary judgment declaring that it is not obligated to defend and indemnify the defendant third-party plaintiff, and the defendant third-party defendant, in the main action is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third-party defendant Insurance Company is not so obligated.

A Kings Workers Compensation Lawyer

June 29, 2015,

A Kings Workers Compensation Lawyer said that, in an action to recover damages for personal injury, and a third-party action, inter alia, for a judgment declaring that the third-party defendant Insurance Company is obligated to defend and indemnify the defendant third-party plaintiff, in the main action, the third-party defendant Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated November 25, 2009, as denied that branch of its motion which was for summary judgment declaring that it is not obligated to defend and indemnify the defendant third-party plaintiff, and the defendant third-party defendant, in the main action.

A Kings Personal Injury Lawyer said that, the third-party defendant Insurance Company issued an insurance policy to the defendant third-party defendant Corporation that contained an exclusion for bodily injury to any employee of any contractor hired by or for any insured arising out of and in the course of the employee's employment for that contractor. The defendant third-party plaintiff, then hired third-party defendant Corporation to perform work on a construction site by way of a written contract, which required third-party defendant Corporation to name defendant as an additional insured under its insurance policy. The plaintiff commenced this action against them to recover damages for personal injury he allegedly sustained while working on the project for a subcontractor hired by either defendant or third-party defendant Corporation. Defendant Insurance Company denied coverage to third-party defendant Corporation inter alia, on the ground that the employee exclusion precluded coverage. Defendant Insurance Company denied coverage to Fabian, among other things, on the same ground.

Defendant then commenced a third-party action, inter alia, for a judgment declaring that defendant Insurance Company is obligated to defend and indemnify it in the main action as an additional insured of the policy issued to third-party defendant Corporation. Defendant Insurance Company moved, among other things, for summary judgment declaring that it is not obligated to defend or indemnify them in the plaintiff's action. In the order appealed from, the Supreme Court, inter alia, denied that branch of defendant’s Insurance Company’s motion which was for summary judgment declaring that it was not obligated to provide such a defense and indemnification.

We reverse the order insofar as appealed from.

To Be Cont...

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A Kings Premises Liability Lawyer

June 27, 2015,

A Kings Premises Liability Lawyer said that, in an action to recover damages for personal injury, the defendant appeals from a judgment of the Supreme Court, Kings County, dated July 14, 2009, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $508,000. The plaintiff was allegedly injured when she fell in a hole in the street while alighting from a bus owned and operated by the defendant, New York City Transit Authority (hereinafter NYCTA). The hole was located at the curb line, next to the sidewalk. The plaintiff alleged that the bus driver parked the bus at an angle, so that the front of the bus was next to the sidewalk and the back of the bus was several feet from the curb. As the plaintiff descended the stairs of the rear exit of the bus, she stepped down with her left foot into a hole in the ground and fell.

A Kings Personal Injury Lawyer said that, the plaintiff claimed that she did not see the hole before she fell. The bus driver also claimed that he did not see the hole before the accident, because it was near the curb, and he was scanning the street in front of the bus for pedestrians. After a trial on the issue of liability, the jury found that NYCTA was negligent, and that its negligence was a substantial factor in causing the plaintiff's construction accident. The jury found that the plaintiff was not negligent.

At a trial on the issue of damages, the plaintiff's physician testified that she had suffered a meniscal tear and subchondral bone injury in the left knee, had an abnormal gait, and would require a total knee replacement in 5 to 10 years. NYCTA's physician testified that the plaintiff's left knee was normal, her gait was normal, and that she had no permanent back injury or disability. He testified that the alleged meniscal tear was an age-related degenerative change. Counsel for NYCTA requested at trial that the jury be required to determine whether the plaintiff had sustained a serious injury pursuant to the no-fault insurance law. The plaintiff's counsel contended that the accident was not the result of the use or operation of a motor vehicle, so that the no-fault provisions did not apply. The plaintiff's counsel noted that NYCTA had denied her claim for first-party benefits. Counsel for NYCTA stated that the reason that no-fault benefits were denied was that NYCTA had no record of the plaintiff's bike accident. The Supreme Court denied NYCTA's request to charge the jury as to the issue of serious injury.

A Kings Construction Accident Lawyer said that, the jury awarded the plaintiff $250,000 for her past pain and suffering, and $250,000 for her future pain and suffering. The jury also awarded the plaintiff $8,000 for past medical expenses. NYCTA appeals from the judgment entered against it.

Although there was a fair interpretation of the evidence by which the jury could have found that the bus driver should have seen the defect through the proper use of his senses, and was negligent in failing to do so, the judgment must be reversed. As a threshold matter, in an automobile accident personal injury case, the plaintiff is required to plead and prove that he or she sustained a serious injury as defined in the no-fault Insurance Law. If a plaintiff at a trial on the issue of damages fails to sustain the burden of establishing serious injury, the plaintiff is not entitled to any recovery despite proof of common-law liability. Contrary to the plaintiff's contention, the no-fault Insurance Law does apply to her accident, as the accident arose out of "the use or operation of a motor vehicle" (Insurance Law § 5104[a] ). Therefore, in order to recover, she was required to establish that she sustained a serious injury within the meaning of Insurance Law § 5102(d).

For the no-fault statute to apply, the vehicle must be a proximate cause of the injury. To be a proximate cause of the injury, the use of the motor vehicle must be closely related to the injury. Also, the injury must result from the intrinsic nature of the motor vehicle as such, and the use of the vehicle must do more than merely contribute to the condition which produced it.

Here, the negligent operation of a motor vehicle was the proximate cause of the plaintiff's injuries. The plaintiff's theory of liability is that her injuries resulted from the manner in which the bus driver operated the bus, specifically his positioning of the bus next to a hole in the street when he pulled over at the bus stop. Moreover, this is not a case in which the plaintiff was completely outside of the vehicle when the accident occurred, or in which the plaintiff was the victim of an intentional tort. NYCTA was not estopped from arguing that the accident arose from the use or operation of the insured vehicle, as NYCTA never did anything to lead the plaintiff to believe that it would not argue that the accident arose from the use or operation of a motor vehicle. NYCTA stated at trial that first-party benefits had been denied because it had no record of the accident.

The issue of whether the plaintiff had sustained a serious injury within the meaning of the Insurance Law should have been submitted to the jury, as set forth in PJI 2:88A and 2:88F, as requested by NYCTA. It is for a jury to resolve the issues of credibility raised by the conflicting medical opinions. The matter must be remitted for a new trial on the issue of damages. Specifically, the jury should first be required to determine whether the plaintiff sustained a serious injury pursuant to Insurance Law § 5102(d).

In light of our determination, it is unnecessary to reach NYCTA's remaining contention.
Accordingly, the court held that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages.

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Co-defendant did not appear or oppose...cont

June 24, 2015,

Insurance Law § 5104(a) provides that, "when an insured injures someone in a motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met,".

Insurance Law § 5102(d) defines "serious injury" as: "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 loss"]; permanent consequential limitation of use of a body organ or member ["permanent consequential limitation"]; significant limitation of use of a body function or system ["significant limitation"]; or 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 or impairment ["90/180-day"]."
Plaintiff provided the defendant with a verified bill of particulars dated February 10, 2009. In paragraph fourteen, plaintiff alleges that her injuries are of a serious nature as defined by the four elements comprising Insurance Law §5102(d); permanent loss, permanent consequential limitation, and significant limitation under the 90/180-day category. In paragraph fifteen, plaintiff alleges, among other things, that she was confined to bed for approximately one month and incapacitated from employment for approximately six months after the accident.
In support of the instant motion, defendant submitted the affirmed reports of a neurologist, an orthopedic surgeon, and a radiologist. The neurologist examined the plaintiff on March 17, 2010 and concluded that plaintiff had an "essentially normal" neurological exam. He offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period. The orthopedic surgeon examined the plaintiff on March 15, 2010 and concluded that plaintiff had full and painless ranges of motion. He offered the opinion that plaintiff's prognosis for the date of the accident, September 27, 2005, was excellent and that no permanent residuals or musculoskeletal disability were detected. He offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.

On April 16, 2010, the radiologist reviewed plaintiff’s radiological films from a cervical spine MRI examination conducted on October 26, 2005 and a lumbar spine MRI examination conducted on November 8, 2005. He concluded that plaintiff exhibited bulges that were degenerative in nature and not related to the accident but offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.

The affirmed reports of the said doctors are silent as to the plaintiff's condition during the relevant 90/180-day time period. Therefore, defendant has not met its burden because the affirmed medical reports submitted by defendant's physicians fail to specifically discuss the 90/180-day category of serious injury clearly articulated in the plaintiff's verified bill of particulars.

Since the defendant failed to meet the prima facie burden, we need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact.

For the foregoing reasons, the defendant's motion to dismiss the complaint pursuant to CPLR § 3212 and Insurance Law § 5102(d) is denied.

Co-defendant did not appear or oppose

June 21, 2015,

By notice of motion filed on June 24, 2010, defendant moves under motion sequence three, for an order dismissing plaintiff's complaint, pursuant to CPLR § 3212, on the basis that plaintiff's injuries do not satisfy the "serious injury" requirement of New York Insurance Law § 5102(d). Plaintiff opposes defendant's motion. Co-defendant did not appear or oppose the defendant's motion. On September 22, 2008, plaintiff filed a summons and verified complaint with the Kings County Clerk's Office. By verified answer, dated December 5, 2008, defendant joined issue. On April 29, 2010, a note of issue was filed.

A Kings Car Accident Lawyer said that, plaintiff's action is for damages due to personal injury sustained as a result of a motor vehicle accident. Plaintiff's complaint and bill of particulars alleges that on September 27, 2005, she was a passenger in a 1997 Lincoln Town Car owned and operated by co-defendant when said vehicle collided with a 2000 Acura owned and operated by defendant at the intersection of 58th Street and 6th Avenue in the County of Kings. Plaintiff alleges to have sustained severe physical injury as a result of the defendant's negligent operation of their vehicles.

A Kings Motorcycle Accident Lawyer said that, defendant's motion papers consist of a notice of motion, an attorney's affirmation and seven exhibits, labeled A through G. Exhibit A is an "e-law" document containing details of the instant case. Exhibit B is the plaintiff's summons and verified complaint. Exhibit C is the defendant's verified answer. Exhibit D is the plaintiff's verified bill of particulars. Exhibit E is the affirmed report of neurologist. Exhibit F is the affirmed report of orthopedic surgeon Exhibit G is the affirmed report of radiologist.
Plaintiff in opposition, has submitted an attorney's affirmation, an affidavit of merit and five exhibits labeled A through E. Exhibit A includes medical records from Lutheran Medical Center. Exhibit B includes medical records from Seaview Medical & Rehabilitation. Exhibit C includes medical records from Al Correa, Neurologist, P.C. Exhibit D includes medical records from Complete Care, including the affirmation of the neurologist. Exhibit E includes medical records from Doshi Diagnostic.

The issue in this case is whether plaintiff incurred serious injury under the Insurance Law.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact.


To Be Cont...

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A Kings Car Accident Lawyer...cont

June 19, 2015,


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 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

June 16, 2015,


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.

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 accident. 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 accident.

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 accident. 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

June 14, 2015,

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 injury 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.

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.

To Br Cont...

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Workers' Compensation Law

June 11, 2015,


The Court finds GS and ZG Inc.'s failure to plead that the plaintiff had a grave injury within the third-party summons and complaint is not a defect which, in it of itself, requires dismissal. Despite the exclusion of the term grave personal injury, JB, by virtue of the third-party summons and complaint, had due notice of the facts and elements underlying this action. They knew that the cause of action arose out of plaintiff's accident and they knew the extent of their involvement in this action. Accordingly, this Court is not inclined to dismiss GS and ZG Inc.'s action based on the deficiency of their pleadings.

In this action, JB alleges that a review of plaintiff's bill of particulars and the injuries pled therein reveals that none of the injuries pled by plaintiff fall within the ambit of grave injuries as listed in Workers' Compensation Law §11. Further, JB asserts that a review of plaintiff's deposition transcript, specifically the portions delineating the injuries sustained, reveals that plaintiff's injuries are not grave as defined by the statute. Lastly, JB submits that numerous portions of plaintiff's medical records do not indicate that plaintiff is afflicted by any of the injuries termed as grave by the statute.
After a review of all items just listed, the Court concurs with JB. While plaintiff's injuries are serious and involve fractures and injury to multiple body parts, they do not fall into any of the categories listed under the statute.

First, the injuries as pled do not fall within the statute. The Court focuses on the two injuries which GS and ZG Inc. allege are pled and do qualify under the statute as grave injuries. Those injuries are the facial lacerations and cognitive injuries sustained by plaintiff. These injuries as pled are not cognizable by the statute as demonstrated by the cases cited above.

Second, the injuries as testified to by plaintiff do not fall within the statute. The Court in reviewing the injuries alleged by plaintiff at his deposition cannot find that the injuries as testified to, constitute grave injuries. Plaintiff alleges that he sustained fractures to his leg necessitating surgery, an injury to his shoulder, and a head injury requiring the insertion of a metal plate. These injuries as described do not fall within the statute.

Third, The Court examined plaintiff's medical records which, not admissible as evidence, serve to clarify the issues nonetheless. The medical records simply corroborate plaintiff's deposition testimony with respect to his injuries. The Court finds that the medical records do not indicate that the plaintiff has a grave injury. Accordingly, The Court finds that JB has met the burden of establishing that the plaintiff did not sustain a grave injury. Consequently, it is incumbent on GS and ZG Inc. to raise a triable issue of fact on the issue of grave injury if summary judgment is to be averted.

GS and ZG Inc. while submitting opposition to the motion have nevertheless failed to raise a triable issue of fact with respect to the grave injury issue. In opposing the motion for summary judgment, GS and ZG Inc. assert that plaintiff's injuries as pled in his bill of particulars indicate that plaintiff sustained grave injuries. Specifically, they assert that plaintiff's claim that he sustained facial lacerations and brain damage and dysfunction is akin to permanent and severe facial disfigurement and injury to the brain caused by an external physical force resulting in permanent total disability. Goria and ZG Inc. do not oppose JB's motion on any other ground nor do they proffer any other evidence to rebut the claims made by JB in support of summary judgment. This case is analogous to Barbieri v. Mount Sinai Hospital. For the very same reasons that the Court in Barbieri granted summary judgment, this Court is compelled to do the same. The injuries listed in plaintiff's bill of particulars are not cognizable grave injuries.

Accordingly, this Court finds that GS and ZG Inc. have failed to raise a triable issue of fact sufficient to defeat summary judgment. The Court finds that plaintiff did not sustain a grave injury and as such his employer JB cannot be sued for his injuries by GS and ZG Inc. This Court hereby grants summary judgment in favor of JB and summarily dismisses the third-party summons and complaint.

The infant plaintiff, born by

June 11, 2015,

The infant plaintiff, born by caesarean section on June 20, 1979 at the Bronx-Lebanon Hospital, suffered brain injury three days after his birth. Defendant doctors in this medical malpractice action maintain that, when plaintiff was born, he was in perfect health, sustaining brain injury damage when he inhaled milk during a feeding three days later. Defendants-appellants Bronx Anesthesia Group, P.C. and ZV, M.D. further assert that Dr. ZV did not assume her responsibilities as anesthesiologist during the surgery until 1:30 p.m., more than one-half hour after the infant was born at 12:56 p.m. Prior to that time, anesthesia duties were performed by BW, a nurse anesthetist employed by the Bronx-Lebanon Hospital Center. The record does not reflect any negligence by Nurse BW in her administration of anesthesia; but even assuming her negligence, it is asserted that such negligence is not attributable to ZV and the anesthesia group employing her.

Defendant Bronx-Lebanon Hospital Center maintains that there are questions of fact concerning whether management of the labor and delivery was appropriate. With respect to defendants-appellants, the hospital notes, "notwithstanding Dr. ZV's affidavit, the operative report from the caesarean section lists Dr. ZV as the anesthetist, without mention of Dr. BW." According to Bronx-Lebanon, there is a question of fact with respect to ZV's duties as anesthetist and, particularly, her responsibility to supervise Nurse BW.

Plaintiff opposed summary judgment motions interposed by the obstetricians and the Clinton Medical Group to which they belong. Plaintiff did not, however, oppose the cross-motion made by defendants Bronx Anesthesia Group and Dr. ZV, which motion was opposed by the hospital. Supreme Court denied all the motions for dismissal without prejudice to renewal upon completion of all discovery in this matter.

The affidavit of Dr. ZV in support of her cross-motion states that she was not present during the birth of the child and that her involvement was limited to end-care anesthesia and treatment of the mother. Despite the hospital's attempt to disparage its probative value, the statement of a witness constitutes competent evidence. Furthermore, her allegations are entirely supported by the hospital's own anesthesia record made during the delivery. Appellants have therefore made a prima facie showing of their entitlement to summary judgment.

In opposition, Bronx-Lebanon offers only a surgical summary, dictated by Dr. HK, listing Dr. ZV as the anesthetist. From this single entry and in the absence of any proof, by affidavit or otherwise, that she had any responsibility for the administration of anesthesia prior to delivery, the hospital concludes, The medical record demonstrates that Dr. ZV was present in the delivery room during a time in which it is possible that negligence occurred. No explanation is offered for the discrepancy with the anesthesia record, which lists both Dr. ZV and Nurse BW as anesthesiologists.

The issue is whether or not the motion for summary judgment should be granted.
Bronx-Lebanon Hospital Center has offered no proof that Dr. ZV was responsible for supervising the administration of anesthesia prior to delivery of the infant. Nor has it offered any excuse why proof in admissible form cannot be provided. Conspicuously absent is an affidavit from Nurse BW, who is presumably both knowledgeable of Dr. ZV's duties during the surgical procedure and under the hospital's control. Instead, Bronx-Lebanon relies on counsel's bald conclusory assertion that she should have been present earlier, a statement that can be given no evidentiary value. Furthermore, the hospital supplies no evidence to support the inference of malpractice. The record contains no affidavit of a physician stating how the administration of anesthesia by Dr. ZV or Nurse BW can be regarded as a departure from accepted medical practice or a proximate cause of any injury sustained by the infant plaintiff.
The hospital's theory of liability, as far as one is discernible, is that Dr. ZV may have had a duty to supervise the nurse anesthetist, who may have departed from accepted standards of medicalhttp://www.1800nynylaw.com/new-york-medical-malpractice.html practice, which might have contributed to the infant's condition. Rank speculation is no substitute for evidentiary proof in admissible form that is required to establish the existence of a material issue of fact and, thus, defeat a motion for summary judgment.

Accordingly, order of the Supreme Court, Bronx County, entered January 28, 1993, which denied the cross-motion of defendants Bronx Anesthesia Group, P.C. and ZV, M.D. for an order granting summary judgment dismissing the complaint and all cross-claims against them, without prejudice to renewal upon completion of discovery, unanimously reversed, on the law, without costs, to the extent appealed from, the motion granted and the complaint dismissed, as against said defendants.

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Workers' Compensation Law

June 8, 2015,

It is well settled that employers are required to secure and provide a system of compensation for their employees in the event that they are hurt or killed as a result of injury sustained in their course of their employment. This compensation is provided to an employee without regard to fault. Id. If the employee provides for such compensation it is the employer's exclusive liability in the event of an injury to an employee and it is an employee's exclusive remedy against his employer. The right of compensation under this law is the employee's exclusive remedy even if the injury is the result of the negligence of a co-worker.

On September 10, 1996, The New York Legislature amended the Workers' Compensation Law. The amendment to §11 of the law specifically addressed third party actions against employers. Under the amended law, third party impleaders, against an employer who provides Workers' Compensation coverage to his employees, are generally barred. The two exceptions are where there is (1) a contractual obligation specifically requiring the employer to indemnify the third party, or (2) when the employee has suffered a grave injury as defined and enumerated by the statute.

In defining grave injury the Worker’s Compensation Law, §11 states: An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a grave injury which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

Hence it is patently obvious and well settled that the definition of what constitutes a grave injury is limited to the injuries enumerated. Consequently, an injury sustained, no matter how serious, will not be considered grave for purposes of impleading an employer, unless said injury appears on the list.

The burden of proving that an injury is grave in order to maintain an action against an employer always rest with the party seeking indemnification or contribution from the employer.

In order to be granted summary judgment in the absence of a grave injury or a contract specifying indemnification, the cases hold that once movant meets his or her burden of establishing the absence of a grave injury, the opponent must come forward with admissible evidence indicating that there is a triable issue of fact on the issue of grave injury.

A deficiency in a party's pleadings can at times be fatal while at other times the Court is well within its discretion to grant an amendment. In fact the CPLR has abolished the technical rules of pleadings and now holds that the pleadings need only provide the facts intended to be proven and the material elements of an action. The law further holds that a party may amend his or her pleadings at virtually anytime provided, that the party opposing such amendment suffers no prejudice.

In the context of summary judgment motions, a party's failure to articulate a cause of action in his or her pleadings does not give rise to an automatic grant of summary judgment against that party. This is specially true in cases where an opponent to summary judgment establishes a viable cause of action despite not having properly pled the same. Id.

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Workers' Compensation Law

June 5, 2015,

Former defendant, PB, moved seeking summary judgment against all other parties. Thereafter, said defendant and all other parties stipulated to withdraw said motion. Pursuant to said stipulation, PB was substituted out of this action and the BC Inc. was added as a defendant. The current caption represents the substitution. Third-party defendant, JB, cross-moves seeking summary judgment and dismissal of the third-party complaint. JB claims that the instant Third-Party action is summarily bared by the Workers' Compensation Law in that no contract for indemnification exists between JB and the Third-Party plaintiffs. In addition, JB, contends that plaintiff has not suffered a grave injury as defined by the Workers' Compensation Law. Lastly, JB claims that the third-party complaint fails to plead that plaintiff suffered a grave injury, and as such the complaint is defective. Third-party plaintiffs GS and ZG Inc., oppose said motion alleging that plaintiff, within his bill of particulars, has asserted injuries which are considered grave under the Workers' Compensation law. BC Inc. does not oppose the instant motion.

The instant action arises from an alleged fall off a roof. On November 15, 2001, plaintiff a roofer employed by JB was working at the premises owned or occupied by GS and located at New York. While not directly addressed or relevant to the instant motion, JB was apparently hired by BC Inc. who was allegedly hired by ZG Inc. to perform the work on the roof. Plaintiff alleges that while he was lowering debris/garbage from the roof, he fell off the roof which was twenty-five feet above the ground. Plaintiff suffered a litany of injuries and as a result he sued BC Inc., GS and ZG Inc. Specifically, and at issue in the instant motion, plaintiff's bill of particulars alleges, that he sustained facial lacerations and cognitive brain injuries.

There are several facts which are beyond change and which are relevant and dispositive for the purposes of deciding the motion herein. Plaintiff worked for JB. JB had a Workers' Compensation insurance policy in effect at the time of this accident. Plaintiff received Workers' Compensation benefits from JB after this accident. There is no claim that JB was a party to any contracts whereby JB was to indemnify anyone for injuries resulting from the work described. GS and ZG Inc.'s basis for impleading JB is that the plaintiff suffered a grave injury.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. There is no requirement that the proof for said motion be submitted in affidavit form; rather, the requirement is that the evidence proffered be in admissible form. Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. The burden, however, always remains where it began, with the movant on the issue. Hence, if the evidence on the issue is evenly balanced, the party that bears the burden must loose.

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. When the existence of an issue of fact is even debatable, summary judgment should be denied.


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