Plaintiffs oppose the instant motion...cont

March 29, 2015,

NY Insurance Law §5104(a). NY Insurance Law §5102(d), defines serious injury as: A personal injury which results in death; dismemberment; significant disfigurement, a fracture, loss of 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 all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

NY Insurance Law §5102(d). NY Insurance Law §5102(c) defines non-economic loss as pain and suffering and §5102(j) defines covered persons as Any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security provide.

When a defendant seeks summary judgment by alleging that plaintiff's injuries are not serious under the insurance law and that as such plaintiff does not meet the threshold required to maintain a lawsuit, it is incumbent on the defendant to first establish that plaintiff's injuries are not serious as defined by the Insurance Law. If defendant meets this burden, defendant has established prima facie entitlement to summary judgment. Id. It then becomes incumbent on the plaintiff to submit proof, in admissible form, of the existence of triable issues of fact with regard to the existence of a serious injury.

Specifically, plaintiff must demonstrate that there is a serious injury under the Insurance Law, that summary judgment is not warranted and that the action mandates resolution by trial. Additionally, and equally important, plaintiff must establish, through admissible medical evidence, that the injuries sustained are causally related to the accident claimed.
A defendant can satisfy the requisite burden of prima facie entitlement to summary judgment in several ways. A defendant can negate the existence of serious injury using plaintiff's own pleadings. As a matter of course, a defendant's medical submissions must be based on objective evidence. A defendant's doctor's failure to list the objective tests upon which his conclusion is based warrants denial of defendant's motion on the grounds that said defendant has not established prima facie entitlement to summary judgment. Id. A defendant can submit an affidavit from a doctor who examined the plaintiff and opines that the plaintiff had a normal medical examination. A defendant can submit an affirmation from an attorney indicating that plaintiff's own medical records and the reports of plaintiff's own doctors do not indicate that plaintiff suffered a serious injury and that plaintiff's injuries were not, in any event, causally related to the accident alleged.


To Be Cont...

Plaintiffs oppose the instant motion..cont

March 28, 2015,

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. Accordingly, affirmations from attorneys having no personal injury knowledge of the facts are not evidence and offer nothing more than hearsay. Consequently, any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. With regard to leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent's file. An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment.

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 lose." It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated to obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. Dog Bite was not involved.

Accordingly, generally, the opponent of a motion for summary judgment seeking to have the court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact.

A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof.

NY Insurance Law §5104(a) states that notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injury arising out of negligence in the use or operation of a motor vehicle in this state there shall be no right of recovery for non-economic loss, except in the case of serious injury.


To Be Cont...

Plaintiffs oppose the instant motion

March 27, 2015,

A Bronx Estate Litigation Lawyer said that, defendant moves seeking an Order granting him summary judgment over and against plaintiffs. Defendant avers that to the extent that plaintiffs did not sustain serious injuries, as defined by the Insurance Law, it is entitled to summary judgment. Plaintiffs oppose the instant motion averring that defendant has failed to establish prima facie entitlement to summary judgment and that questions of fact preclude summary judgment.

A Bronx Estate Lawyer said that, the instant action is for alleged personal injury. Within their bill of particulars plaintiffs allege that on August 3, 2006 plaintiffs were involved in a motor vehicle accident with a vehicle owned and operated by the defendant. Plaintiffs allege that plaintiff sustained injuries, the most serious being a tear of the medial meniscus, requiring arthroscopic surgical repair and disc herniations at C3-C5. It is alleged that plaintiff sustained injuries, the most serious being a herniated disc at C5-C6. It is alleged that plaintiff sustained injuries, the most serious being, disc bulges at C3-C7. Plaintiffs allege that their injuries are serious under all categories of serious injury promulgated by the Insurance Law.

In support of the instant motion, and with regard to Ortiz, defendant submits four sworn reports from a radiologist, who discusses his review of radiological studies performed upon plaintiff. The radiologist reviews an MRI study performed upon plaintiff’s left knee on September 18, 2006. According to the radiologist, said study, while there is no evidence of meniscal or ligament tear, it nonetheless evinces knee injury, namely moderate tricompartment osteoarthritis with an ununited ossification of the tibial tuberosity. Said injury, according to Fisher is degenerative in nature, pre-existed the accident herein, and are unrelated to trauma. Fisher reviews an MRI study performed upon plaintiff’s left shoulder on September 22, 2006. According to Fisher said study evinces injury, namely bony impingement secondary to acromioclavicular hypertrophic spurring. Said injury, according to the radiologist is degenerative in nature, pre-existed the accident herein, and is unrelated to trauma. He reviews an MRI study performed upon left hip on September 21, 2006. He concludes that said study evinces injury to the left hip, namely, osteoarthritis. Said injury, according to him is degenerative in nature, pre-existed the accident herein, and is unrelated to trauma. Fisher reviewed MRI studies performed upon plaintiff’s cervical spine on September 20, 2006. Said studies, according to Fisher, evince injury, namely degenerative changes in plaintiff’s cervical spine. Said injury, according to the radiologist is degenerative in nature, pre-existed the accident herein, and are unrelated to trauma.

In opposition to the instant motion, plaintiffs submit a copy of this Court's Order dated April 30, 2008, wherein plaintiffs were granted partial summary judgment on the issue of liability.


To Be Cont...

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XX Bronx Park South, Bronx

March 26, 2015,

This is a personal injury action in which plaintiff alleges that he slipped and fell on the front steps of his apartment building, which is designated as XX Bronx Park South, Bronx, New York (the "building"). The building is owned and maintained by defendant Bronx Park South Associates ("Bronx Park").

Plaintiff, at a deposition conducted on February 3, 1999, testified that he worked close to his residence and returned often during the day, and that when he left for work at 5:00 A.M., he did not notice any debris or oil on the steps of the building. Plaintiff maintained that he returned to his apartment for lunch at approximately 12:00 P.M., at which time there was no debris on the steps. Plaintiff then testified that he left to return to work at approximately 1:30 P.M. and slip and fell on supermarket fliers that were probably placed on the steps while he was inside his apartment eating lunch. Initially, plaintiff averred that he fell on the fliers and that was it, but, after some prodding from his attorney, who queried "didn't you tell me you slipped on garbage and oil on the steps?", plaintiff agreed that there was oil on the first step, but that the oil was not there earlier in the day and appeared at some point between the time he returned for lunch at noon and when he fell, one and one-half hours later.

According to Plaintiff, the discrepancy between plaintiff's deposition testimony that he observed no debris or oil on the steps an hour-and-one-half prior to the accident and the affidavit of his neighbor that she observed "papers, garbage and grease" on the steps the previous day that had not been removed at the time of the accident presents, at most, an issue of credibility to be resolved at trial. "The assessment of the value of a witness's testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony. The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned.

It is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, which include the likelihood of injury to third parties, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk. However, in order to recover damages for an alleged breach of this duty, a party must demonstrate that the landlord created, or had actual or constructive notice of, the hazardous condition which precipitated the injury. In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to allow the owner to discover and remedy it.

In light of the foregoing, plaintiff's own deposition testimony makes it clear that none of the criteria necessary to sustain a cause of action against the landowner has been met. Plaintiff's submission of a one-page affidavit from his neighbor, an alleged eyewitness to the accident, which consists of nothing more than two relevant sentences of conclusory allegations tailored to overcome plaintiff's testimony, is insufficient to warrant the denial of defendant's motion.

As we held in Phillips v Bronx Lebanon Hospital, 268 A.D.2d 318, 320, while issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment. The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned. Hence, Plaintiff’s petition is hereby dismissed.

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According to the officer, the steps were more than just wet, there being a build-up of snow.

March 24, 2015,

This action involves a claim for damages arising out of personal injury suffered by plaintiff Mrs. DB as a result of the alleged negligence of defendant Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). At approximately 9:00 A.M. on December 20, 1979, plaintiff, accompanied by her young son, boarded one of defendant's buses at Williamsbridge Road and Morris Park Avenue in the Bronx. It had snowed the previous day, leaving an accumulation of some three to three and one-half inches. The weather report for the morning of the accident indicated that the temperature was in the low 20's. As plaintiff got onto the bus, she noticed that there was slush present on all of the front steps. The vehicle was not crowded, and it made about four or five stops before it reached plaintiff's intended destination. She then pulled on the signal cord, and the bus halted at the intersection of Bogart and Morris Avenues. She walked back to the front with her son, again observing the slush on the stairs. Standing on the platform leading to the stairwell, she uneventfully assisted her child off the vehicle. Thereafter, she stood up and, holding one hand on the railing, she descended the first step and fell backward onto the stairs, striking against them with her back, left arm and left shoulder, her knees in the slush and her legs bent under her body.

Police Officer DS, who arrived at the scene shortly after the accident, testified with the aid of notes made on the scene that he spoke to both the bus driver and plaintiff. He stated that there was slush on the front stairs of the bus. Moreover, the vehicle was resting at a steep incline at the bus stop, causing it to lean excessively. Although several pages of the Officer's memo book were marked for identification and read to the jury, the portion relating to the slant of the bus was ordered stricken. According to the officer, the steps were more than just wet, there being a build-up of snow.

The bus driver also took the stand, asserting that while there has been some slush on the steps, the other people on the bus had gotten on and off without any difficulty. Following the accident, he had informed the bus company by telephone, and one of its dispatchers had arrived at the scene. The driver conceded that he had not cleaned the stairs or placed any salt or other material on them nor had he been instructed to do so by the bus company. The written report of the accident prepared by the dispatcher was also entered into evidence.

In its charge, the court instructed the jury that the standard of care applicable to a situation such as the one herein is that: A common carrier, such as the defendant here has the duty to exercise reasonable care and diligence to keep its bus steps reasonably clear of snow and ice. The fact that a passenger falls on snow or ice and is injured does not, of itself, make the common carrier liable.

to Be Cont..

Board of Examiners of Sex Offenders ...cont

March 23, 2015,


In this case, the Board noted that the defendant admitted his guilt. He stated he fondled the victim for pleasure, but at times indicated that he remembers nothing about the instant offense or his criminal history as a result of a severe beating he received in retaliation for his crime. At the time of sentence in 1995, defendant's psychiatrist noted that, "although the defendant does not remember any pedophilic acts on his part, he personally accepts responsibility for his actions and says that if he was accused of these actions that he did them." A second examining psychiatrist noted that the defendant stated he "rubbed this little boy's penis." But later, when confronted with both his admission of guilt to the Probation Department and his claims of lack of memory, he stated, "that is my thing touching boys (genital area) so I must have done it." An individual cannot accept responsibility for committing a crime while at the same time denying memory of his criminal conduct.

The Guidelines themselves stress that both the Board and the court should examine the offender's most recent credible statements and should seek evidence of genuine acceptance of responsibility. Here, there is no such genuine acceptance of responsibility. Quite notably the defendant's letters are after he completed the prison's mandatory sexual treatment program. While neither admitting nor denying his latest offense, he nonetheless expressed his willingness to continue participating in the sex offender treatment program saying "better safe than sorry" and "just in case."

This personal injury court further finds that, although the defendant received the maximum amount of points with respect to the number and nature of his prior crimes, the objective risk assessment instrument itself cannot adequately take into consideration this pedophile's criminal history. Prior to his latest offense, the defendant was arrested, in 1987, for criminal impersonation of a police officer and endangering the welfare of a child. The defendant approached two boys, identified himself as a police officer and displayed a badge. A police officer, who observed the defendant's actions, intervened believing that the defendant was attempting to seduce or solicit the boys. The defendant pled guilty and received three years probation. In 1985, the defendant was also arrested for criminal impersonation and criminal trespass. In that case, the defendant dressed up in a Fire Marshall's uniform and went into two public elementary schools posing as a Fire Marshall. He was sentenced to 60 days in jail.

When the defendant impersonated a Fire Marshall, he was already on probation with respect to an earlier 1985 conviction in which he pled guilty to sexual abuse. There, the defendant sexually abused his paramour's nine year old son by fondling the child's anus and rubbing his genitals against the child's genitals. This was another offense for which the defendant pled guilty but denied his guilt or any knowledge of the offense in that presentence report. The defendant was sentenced to three years probation.

The instant offense is consistent with this defendant's escalating pattern of anti-social criminal behavior. His criminal history dates back to 1984 and has continued unabated by prior court imposed probation or correctional sanctions. A probation failure, he remains undeterred and a serious threat to children. The personal injury defendant is fully culpable for his behavior. He did not express any remorse or concern for the eight year old victim he traumatized, by sexually deviant acts herein. Having failed to derive sustaining benefit from years of previous psychiatric intervention and treatment the outlook for this immature and non-insightful personality is necessarily pessimistic.

A mere mechanical application of the guidelines is not the appropriate manner in which to classify this offender. As risk assessment determinations become routine, the sentencing court must continue to fully exercise its independent judgment to ensure an accurate final judicial determination given the importance of the individual and public interests involved in designating an appropriate risk level. Here, there is clear and convincing evidence of the existence of aggravating factors of a kind, or to a degree, not otherwise taken into consideration by the Guidelines. In spite of the lower recommendation by the Board, and even in the absence of a request for an upward departure, this court finds that special circumstances warrant an upward departure from the presumptive risk level two to a level three. The court finds, pursuant to the Sex Offender Registration Act, that the risk of repeat offense is high and that there exists a threat to the public safety.

Accordingly, the defendant is deemed a sexually violent predator and a risk level three designation is hereby assigned to this sex offender.

Board of Examiners of Sex Offenders ...cont

March 21, 2015,


The defendant seeks a downward departure from the presumptive risk level two to a risk level one. The defendant and defense counsel appeared for a hearing on August 19, 1998. The Bronx District Attorney's Office declined to appear indicating that it routinely takes no position with regard to sex offender classifications. The State Attorney General's Office was notified, but did not appear. No one has moved on behalf of the State for an upward departure from the level two recommendation of the Board.

Due process mandates that the State must bear the burden of proof to support its proposed risk level assessment by clear and convincing evidence. However, even where departure from the calculated presumptive risk level is not requested, it is still appropriate for the court to independently consider whether a departure from the recommendation is warranted. The board serves only in an advisory capacity similar to the role served by a probation department in submitting a sentencing recommendation. The court is not bound by the recommendation of the board and, in the exercise of its discretion, may depart from the recommendation and determine the sex offender's risk level based upon the facts and personal injury circumstances that appear in the record.

Similarly, the court need not accept at face value the allocation of risk factor points by the Board, even where there has been no challenge. The court may still wish to scrutinize the underlying circumstances that the Board relied upon in assessing risk. This is especially true when the information in the record before the court appears to be more extensive than that relied upon by the Board. In assessing risk, the Board or the court may rely upon the case file, the sex offender's admissions, the victim's statements, the evaluative reports of the supervising probation officer, parole officer, or corrections counselor, or any other reliable source. After considering the Board's recommendation, any victim's statement, any statement or materials submitted by the sex offender, and reliable information in the case file, the sentencing court bears the ultimate responsibility to determine whether the Board's presumptive risk level recommendation appropriately reflects the risk posed to the public, or whether departure from that recommendation is warranted.

An upward or downward departure from the presumptive risk level is warranted where there is clear and convincing evidence of the existence of an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines. The court should consider departure from the presumptive risk level where either the state or the defendant seeks an upward or downward departure and offers clear and convincing evidence to support departure. The court should sua sponte depart from the presumptive risk level when it is clearly evident from the record before the personal injury court that special circumstances warrant departure.

An objective risk assessment instrument, no matter how well designed, will not fully capture the nuances of every case. In this case, the Board's presumptive risk level calculations resulted in an under-assessment of this sex offender's risk to the public safety. Firstly, in allocating points to the defendant with respect to the current offense, the Board chose not to assess any points for more than one victim. The existence of multiple victims of sexual contact is indicative of compulsive behavior, and is therefore a significant factor in assessing the offender's risk of re-offense. To determine the number of victims, neither the Board nor the court is limited solely to the dispositional charge to which the defendant pled guilty. In this case, although the defendant was charged and pled guilty to fondling an eight year old boy, the presentence report notes that the mother of the victim stated, "the defendant also kissed my four year old son Leo, in the mouth. Leo has never forgotten the accident and he is now afraid of all men." The Board did not assess any points for the defendant kissing a four year old boy in the mouth. However, the defendant's conduct in this regard constitutes "sexual contact" within the meaning of the statute defining first degree sexual abuse. In determining risk assessment under the Guidelines, sexual contact includes intimate touching or kissing for the purpose of sexual gratification.

The Board also did not assess any points against the defendant for his non-acceptance of responsibility. A guilty plea may provide some evidence of a defendant's acceptance of responsibility. However, it does not, by itself, constitute a sincere acknowledgment of personal culpability. For example, an offender who pleads guilty but tells his presentence investigator that he did so only to escape a state prison sentence has not accepted responsibility.

To Be Cont...

Board of Examiners of Sex Offenders

March 20, 2015,

A Bronx Personal Injury Lawyer said that, on August 15, 1998, the defendant was released from state prison after serving a three year sentence following his conviction on October 25, 1995 to sexual abuse in the first degree. The defendant, who was a Cadet Leader of an eight year old boy, pled guilty to fondling the boy's penis while staying overnight at the boy's home. The court must now make a risk assessment determination pursuant to the Sex Offender Registration Act (SORA).

A Bronx Personal Injury Lawyer said that, the Board of Examiners of Sex Offenders has recommended to the court that the defendant be assessed a risk level two. This recommendation was based on the Board's use of its objective risk assessment instrument which assigns a numerical value to the existence of certain risk factors and totals the numerical points to arrive at the offender's presumptive risk level. The Board found that the defendant's total risk factor score was 100 points. This score, being more than 70 points but less than 110 points, falls within the numerical parameters set forth for a presumptive risk level two category. A level two designation indicates that the risk of repeat offense is moderate.

The issue in this case is whether the Board of Examiners of Sex Offenders erred in recommending to the court that the defendant be assessed a risk level two.

After receiving a risk assessment recommendation from the Board, the sentencing court must make a final judicial determination with respect to the level of notification. The phrase "sentencing court" is not defined within the Act. Other States have held that the phrase "sentencing court" refers to the forum that had jurisdiction over the case, as opposed to the specific judge. Although this State has not set forth a definition in statute or case law for the phrase "sentencing court," it has been held that a judge is not "the court" as a "court" is defined as an organized body with defined powers, meeting at certain times and places for the accident hearing and decisions of causes and other matters brought before it.

A sex offender need not be classified by the particular judge who sentenced that sex offender. However, the judge who personally presided over a sex offense case and sentenced the sex offender is usually in the best position to evaluate the potential danger posed by the defendant, and accordingly determine what is the proper level of notification owing to the public. This thirty-seven year old sex offender is a psychiatrically diagnosed and self-described pedophile. In 1995, recognizing the serious threat the defendant posed, this court ultimately rejected the original plea agreement negotiated between the prosecution and the defendant which sought a sentence of probation, coupled with the imposition of certain conditions. This court sentenced the defendant to an indeterminate state prison sentence of one to three years.


To Be Cont...

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The cause of action for

March 18, 2015,

The cause of action for this case is for personal injury sustained by the plaintiff on September 7, 2002, when a portion of her bathroom ceiling collapsed on her head while she was in her apartment in the Bronx.

A Bronx Personal Injury Lawyer said that Defendant, in its motion, asserts that PET scans are not generally accepted in the medical community in the role of evaluation of minor brain trauma and, therefore, plaintiff's PET scan evidence must be excluded. Defendant further asserts that the doctor is not qualified to interpret the PET scan results because he is not a Board Certified Nuclear Medicine Specialist.

Both parties agree that New York's standards of admissibility for expert testimony based on scientific principles or procedures are governed by the "general acceptance test".
Plaintiff's affirmation in opposition cites a case wherein the First Department clarified the limited role of a Hearing, namely, to determine whether the expert's deductions are based on principles that are sufficiently established to have gained general acceptance. Plaintiff also cites a case to establish the legislature's intent regarding the admissibility of graphic, numerical, symbolic or pictorial representations of medical or diagnostic tests.

The 1993 New York State Legislative Annual clarifies the legislative intent. A Senator stated in a memorandum, "This bill represents a recognition of the advances in medical technology by allowing these well accepted diagnostic procedures to receive the same treatment that x-rays currently receive for authentication purposes in personal injury cases."

While other states, as well as the Federal Government, may have varying standards for admitting expert testimony based on scientific principles, New York remains a Frye state. In a case, the court stated, "The important purpose of the Frye test is to ensure that courts do not rely upon an expert's testimony regarding a novel procedure, methodology or theory unless it has been "generally accepted" within the relevant scientific community as leading to reliable results.

Finally, the court in a case stated that, "where the challenged theory of causation finds no objective support, but instead is based solely upon the expert's own unsupported beliefs," this would be a fertile ground for a successful challenge. Here, the doctor's use of PET scans to diagnose traumatic brain injury is neither a novel procedure nor an unsupported personal belief. Plaintiff, in her affirmation in opposition, attached three peer review articles which provide objective support of the doctor's particular use of PET scans. The peer review articles are helpful in establishing both the "general acceptance" and reliability of PET scans for diagnosing brain injury.

Defendant, in its motion, cites the federal standard that was established. However, New York courts have repeatedly declined to accept the federal standard for admitting scientific evidence, and this court is bound by this precedent as support for its argument, the defendant misinterprets the statute as implying an outright duty on the expert's part to provide support for their opinion. Yet, the statute states that, "

Defendant asserts that the doctor’s lack of board certification should preclude him from interpreting PET scan results and testifying as an expert witness. The doctor is the Director of the Neuroscience PET Laboratory at Mt. Sinai School of Medicine and has published well over 400 articles in his field of study. He has testified as an expert interpreting PET scans at many trials and his lack of board certification does not bar his testimony here.

Both parties in their motion also cite to a case where the doctor's testimony was admitted in evidence during the sentencing phase of that trial. After admitting the evidence, the judge, as fact finder, determined that the doctor's use of PET scans and his expert opinions derived therefrom were not helpful in making his determination. Therefore, it is appropriate that the doctor's testimony be admitted at this trial for the jury, as fact finder, to determine its validity. The jury is free to accept or reject his testimony in whole or in part.

The proffered expert opinion represents the consensus of the medical and scientific community by clear and convincing evidence.

Accordingly, defendants' motion to preclude the PET scan images and expert testimony by the doctor in reference to these images is denied.

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CPLR 5015(a)(3) and (4)...cont

March 17, 2015,


Based upon the evidence adduced at the hearing herein, including the fact that the physical description in the affidavit of service of the individual allegedly served differed considerably from the physical appearance of defendant, and the further fact that the process server failed to identify him in court as the person upon whom he had served process, there was a more than adequate basis for the hearing court's determination that he was never personally served with process. Accordingly, we conclude that Special Term properly held that personal jurisdiction over he was not acquired by personal service of process upon him.

However, as indicated, we disagree with Special Term's conclusion that having determined the question of acquisition of jurisdiction by service of process against the plaintiff, the issue of whether the attorney’s appearance on behalf of the defendant was authorized becomes moot. To the contrary, once it was found that personal injury jurisdiction had not been acquired, the court should have shifted its focus to the question of whether the appearance by the attorney on defendant’s behalf amounted to a waiver of the right to challenge jurisdiction. An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer. By statute, a party may appear in an action by attorney, and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction.

Simply stated, the rule, which traces its origin to English case law, holds that the unauthorized acts of a duly admitted attorney may serve to extend jurisdiction over a New York resident who has not otherwise subjected himself to the jurisdiction of the court. From its accident inception, however, the rule has been criticized and its original scope has been narrowed.

The rule that a defendant will ordinarily be precluded from attacking a judgment entered against him on the ground that personal jurisdiction was conferred simply by virtue of an unauthorized appearance was first enunciated in New York case.

Thus, from the outset, there was an awareness of the unfairness that strict adherence to the rule might work, both as to those defendants who had a meritorious defense to the claim made against them and to those who were without recourse against the errant attorney. It bears noting that the Denton case was decided over a vigorous dissent by Judge, who argued that a close examination of the English cases cited by the majority in support of the rule revealed that they were distinguishable in various respects from the facts before the court. The majority position prevailed, however, and the Denton rule was thereafter followed during the early and middle part of the nineteenth century. Throughout, however, the rule remained the subject of strong criticism and dissent.

Nor do we find adequate the other remedy proposed by Denton of allowing a defendant to institute an action for damages against the attorney who made the unauthorized appearance. Such a remedy subjects an innocent party to the burden of instituting a new proceeding against an attorney. Moreover, like our colleagues of the Third Department in, we "fail to see how an attorney's solvency can validate an otherwise void judgment entered against a person over whom personal jurisdiction was not obtained".

In light of what we perceive to be the inadequacy of the remedies available to a defendant who finds himself bound by a judgment in an action in which an attorney made an unauthorized appearance on his behalf, we are obviously not persuaded by the further contention set forth in Denton that unauthorized appearances rarely occur and that even when they do "no very serious injury can result"). The infrequency of occurrence is of little solace to defendant and those like him who find themselves bound by a judgment entered on an unauthorized appearance. Furthermore, it is not always the case that the ill effects of an unauthorized appearance are slight. A judgment may subject a party to great financial hardship and, as previously noted, we find the alternative remedies available to such a party to be far from adequate.

Accordingly, we conclude that jurisdiction was not acquired over the defendant since he was never served with a summons and did not voluntarily submit to the court's jurisdiction. In light of this fundamental jurisdictional defect, we hold that as against defendant the judgment entered herein, predicated upon jurisdiction based upon an unauthorized appearance, is void and, therefore, the order appealed from, which vacated the judgment as to him, should be affirmed.

CPLR 5015(a)(3) and (4)

March 16, 2015,

The defendants, his brother, and his father were the principal shareholders of the corporate defendant. For several years prior to 1974 the corporation owned a restaurant in Staten Island, together with the real property upon which it was located. During this time, the brother had been the president and chief operating officer of the restaurant, while his brother defendant and his father apparently had not been actively involved in the business.

Sometime in January 1974 the president of the plaintiff real estate broker, approached the brother to discuss a possible sale of the restaurant and the real property upon which it was situated, as well as a private residence immediately adjacent thereto which was owned by him, his wife, and his father. Within a few weeks, a contract of sale was prepared and executed under which the restaurant, the property upon which it was located and the adjacent private residence were to be sold to a buyer produced by the plaintiff. Thereafter, on or about April 25, 1974, the transaction was consummated with the transfer of all of the stock of the corporate defendant together with the private residence, to the buyer. As part of the financial arrangements for the transaction the buyer gave a purchase money mortgage to defendant and the other parties. Thereafter, the purchase money mortgage was foreclosed and the real properties were conveyed to the buyer and his sons, as tenants in common.

Plaintiff commenced the instant accident action against the seeking to recover the balance allegedly due under the brokerage agreement. Following service of the summons and complaint upon him, the brother retained an attorney, to appear on his behalf and purportedly to appear as well on behalf of his brother, his father, and the corporation. Following his retention, the attorney filed a notice of appearance and an answer on behalf of all the defendants and later interposed an amended answer and filed a demand for a bill of particulars on their behalf.

On March 14, 1983, the parties--the defendants now purportedly appearing by one counsel to the other attorney entered into a stipulation in open court providing for settlement of the action for the sum of $17,000. It was further provided that if payment was not made within 30 days, Skyline could enter a default judgment against the defendants for the entire amount alleged to be due, to wit, $39,000. Thereafter, on May 10, 1983, following the defendants' failure to pay the settlement amount within the allotted time, a judgment was entered pursuant to the parties' stipulation against the defendants in the sum of $39,000. Based upon that judgment, Skyline's counsel thereafter issued an execution, with notice to garnishee, to three individuals who were indebted to the defendant under a mortgage and petitioned the court for entry of a judgment directing the mortgagors to pay plaintiff the sum of $39,152 in satisfaction of the outstanding judgment against the defendants.

Thereafter, by order to show cause dated October 24, 1983, defendant moved, inter alia, for an order pursuant to CPLR 5015(a)(3) and (4), vacating the judgment insofar as entered against him. In support of his application, he alleged that he had never been served with process in the action and that he had first become aware of the action and of the judgment therein in June of 1983 when execution was levied upon the mortgage payments due to him. He claimed that without his knowledge or consent his brother had apparently retained the attorney to defend the action and that Fitzpatrick had entered an appearance on his behalf without his knowledge or authorization and without his ever having been advised of the pendency of the action.

A New York Premises Liability Lawyer said that, by order dated March 13, 1984, Special Term directed that a hearing be held on the issues of whether proper service was effected upon defendant and whether the attorney had had authority to appear on his behalf. Following the hearing, Special Term concluded that personal service had never been effected upon Frank and that it, therefore, lacked personal jurisdiction over him. Accordingly, Special Term vacated the judgment as against defendant.

The issue in this case is whether an attorney's unauthorized appearance conferred personal injury jurisdiction over the individual for whom the attorney purported to appear when that individual neither had been served with process nor had become aware of the fact that an action had been brought against him until subsequent to judgment.

We conclude that, under such circumstances, personal jurisdiction is not acquired and the judgment entered as a result of such an unauthorized appearance must be vacated.

While Special Term's determination as to the lack of personal service was, in our view, correct, we do not agree that the question of the attorney’s authority to appear on defendant’s behalf is moot. For the reasons stated herein, we find it necessary to reach that issue and upon our review thereof we conclude that vacatur of the judgment as against defendant was appropriate. Accordingly, we affirm.

At the outset, we address the issue of whether jurisdiction was acquired over the defendant by proper service of process. In New York, a civil action is generally commenced and jurisdiction acquired by service of a summons (CPLR 304). While there are a number of methods by which a summons may be served upon a natural person, the method claimed to have been utilized at bar to effect service was personal delivery of the summons pursuant to CPLR 308(1). It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action. Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction. Where, however, as here, there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.

To Be Cont...

Continue reading "CPLR 5015(a)(3) and (4)" »

Department of Financial Services...cont

March 15, 2015,

The Fund reduces, often substantially, the amount of net cash available to settle a case. While some parents of youngsters who have been the victims of an obstetrical mishap will, hopefully, realize that enrollment in the Fund is a valuable tangible asset, some, undoubtedly, will grouse about the reduced amount of cash which results from a settlement. Potentially, some parents will be disappointed with the outcome and their lawyers will have the difficult task of trying to explain why a guaranteed program of medical services for a child is an appropriate substitute for ready cash.

In smaller value settlements (usually because of liability problems), where a 50/50 allocation is appropriate because of the nature of the injuries, this court has tinkered with its 50/50 allocation. Take, for instance, a $2,000,000 settlement. Applying a 50/50 allocation, plaintiffs will have to pay a portion of the attorney's fees, leaving a net recovery of less than $1,000,000. Under those circumstances, this court encourages a hospital or insurer to be less insistent on a 50/50 allocation or to take other innovative measures to maximize cash. For instance, in a recent case, a self-insured hospital, above and beyond the settlement, agreed to satisfy the Medicaid lien so that the allocation percentages remained in tact, but cash was maximized.

As we know from past experience, many obstetrical settlements will involve children who will not require custodial care or whose need for future medical services is limited. Thus, the amount allocated to Fund damages will likely be less than 50%. Hopefully, as more courts apply the allocation process to settlements, certain general parameters will be established to deal with differing fact patterns.

Now comes the difficult part: The Fund was created to help insurance companies, hospitals and medical providers reduce premium costs in obstetrical malpractice actions. Thus, if the Fund takes on the obligation of paying for a child's future medical needs, the statute anticipates an accompanying savings to the class for whose behalf the Fund was created. “Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation”

The Legislature's reason for creating the Fund is unequivocally set forth in the statute: “To provide a funding source for future healthcare costs associated with birth related neurological injury, in order to reduce premium costs for medical malpractice insurance coverage” Distilled to its basics, the statute's legislative scheme is a simple one: The Fund substitutes services for up-front cash. The Fund pays for the services and the insurer, hospital and/or medical provider saves the up-front cash. This savings reduces the insurer or self-insured medical provider's cost of resolving obstetrical cases, doubtless resulting in reduced malpractice premiums and/or expenses.

Lastly, enactment of the Fund has stirred controversy; change often does. Undoubtedly, the Fund will have to work out its “kinks”; most new programs do. And, yes, skeptics have a right to insist that the Fund meet the needs of a damaged child without subjecting a family to bureaucratic nightmares and snafus. However, at a time when States across the nation confront the fiscal reality that the cost of governance must be reduced, particularly expenses related to healthcare and Medicaid, the bench and bar must act cooperatively and responsibly to implement a program whose purpose is clear while protecting the sick children who we have the privilege to call our wards.