New York Personal Injury Lawyer Blog

A boy was invited by his friend to a sleep over at his house. He had been to his friend’s house several times before. A New York Injury Lawyer is friend had a family pet, a beagle-collie-Rottweiler mixed breed dog. The dog was excitable. He ran around a lot and barked. But he was not aggressive.

On that night that seven boys were at the house for the sleep over on December 31, 1998, one of the boys went down to the kitchen to use the bathroom. The family pet barked at him. The boy was not afraid. He went to the bathroom and he was already on his way back up to his friend’s room when he saw his friend’s mother with the dog.

Whenever there were visitors to their home, the family kept the dog fenced-in in the kitchen as he barked when he saw the guests. As the boy was going back up the stairs, his friend’s mother called him over and told him to put his hand out so the dog can smell him. The mother told him that the dog will remember that he had been to their house before. The boy was not afraid as his friend’s mother had the dog on a leash. When the boy reached out to the dog, the dog lunged at the boy and bit him. The boy sustained a head injury because of the dog attack.

The boy’s mother then sued the dog’s owners. At the trial, it was stipulated that the attack and dog bite was unprovoked. The parties testified that they had no knowledge that the dog had ever previously threatened or bitten any other person.

The dog’s owners moved for a summary dismissal to dismiss the complaint for damages for failure to state a cause of action. A Bronx Personal Injury Lawyer said the dog owners argued that the plaintiff failed to prove that the dog had vicious propensities. They claim that the plaintiff failed to prove that the owners knew or should have known that the dog had vicious propensities. The plaintiff argued that the dog owners knew of the vicious propensities of their dog or they would not have fenced him in. The judge found for the plaintiff and ordered the dog owners to pay damages.

On appeal, a Brooklyn Personal Injury Lawyer said the Appellate Division ruled that the plaintiff failed to raise a material issue of fact that the dog owners were aware that their dog had vicious propensities. Hence, this appeal was brought before the Supreme Court of New York.

The only issue before the Supreme Court was whether or not there is a triable material issue of fact that the dog owners had knowledge that their dog had vicious propensities.
The Court affirmed the Appellate Division’s dismissal of the complaint.

The Court ruled that the law of the state has been consistently applied that the owner of a dog who knows or should have know of his animal’s vicious propensities shall be held liable for the harm caused by the animal because of those vicious propensities.

The Court ruled that vicious propensities meant that the dog attacks and the dog bites. It had a propensity to act so as to endanger the safety of persons and property of others. The evidence that the dog owner knew of the dog’s vicious propensities is if there had been prior acts of a similar nature which was known to the owner.

Evidence that the dog had been known to growl, snap or bare its teeth is enough to show that the dog had vicious propensities. Evidence that the owner restrained the dog is also acceptable to prove vicious propensities. Even if the dog has not bitten anyone before, if it can be proved that the dog acts in a way that puts others at risk of harm is enough to prove vicious propensities.

In light of all the evidence presented, the Court held that there was no material issue of fact raised that the dog had vicious propensities that were known or should have known to the defendants.

At Stephen Bilkis and Associates, you can speak to any of their New York City Dog Bite Lawyers. You can talk to their New York Dog Bite Lawyers and they can assess if you have a viable cause of action to sue for damages consequent to a dog bite. Their NYC Dog Bite attorneys can help you present evidence and help you argue your case. Call Stephen Bilkis and Associates today, speak to any of their NY Dog Bite attorneys at any of their offices around the New York area.

A married woman owned a property with a two-car garage. She decided to renovate the two-car garage by making it over into a guesthouse with a fireplace. She hired a general contractor to secure the necessary permits and licenses needed for the project; to hire and to supervise sub-contractors for each and every phase of the work; and to purchase insurance to shield the owner from suits in damages for any accidents that may occur during the renovation at the worksite.

The general contractor hired a company that constructs and installs drywall. It also hired a rock supplier to provide and install sheet rock as flooring. A man was hired by the rock supplier to deliver 16-foot sheet rock. A New York Injury Lawyer said he drove the truck on which the sheet rock was delivered. He also operated the boom that lifted the sheet rock from the truck bed to the forklift. A foreman from the general contractor told him to just bring the sheet rock into the garage and rest them on the long wall. The man and his helper took one sheet rock and carried it between the two of them. They entered the garage. When they got to the room where they were supposed to pile the sheet rock, the man’s right foot slipped into a hole on the cement floor of the worksite that measured about sixteen inches in diameter. There was a pipe that protruded from the hole and the man tripped on this and fell. The man could not see where he was going as he and his helper carried the sheet rock in between them. His slip and fall made him land on the sheet rock which fell and broke.

The man sustained serious personal injury and sued the owner of the premises (premises liability), her husband, the general contractor, the drywall installer, and the rock supplier for common law negligence and for negligence under the labor code to compensate him for the damages he sustained as a result of his personal injury.

All the defendants moved for summary judgment asking for the dismissal of the complaint of the sheet rock delivery man. The only question before the Court is whether or not the defendants are entitled to a summary judgment of dismissal.

The owner of the premises submitted proof that she personally and solely owned the premises. She hired a general contractor to oversee in her behalf the construction and renovation. A Bronx Personal Injury Lawyer said that she often visited the premises but did not exercise any supervision of the construction work. She did not give instructions as to the performance of the construction work. She merely visited to see how the work was progressing.

The husband of the owner of the premises submitted proof that the premises are not conjugally or jointly owned by him and his wife; he submitted proof that only his wife owned the premises. He also submitted proof that he has not visited the premises and has not in any way supervised the work at the construction site.

The dry wall company submitted proof that on the day of the accident, it was not yet working at the worksite. The phase of the work that involved the installation of drywall had not yet begun and so it did not have any employees or equipment at the worksite. It had not yet worked at the worksite.

The rock supplier also disclaimed any responsibility for the slip and fall accident of the delivery man. Although the sheet rock was delivered at the worksite, the rock supplier had yet to begin work at the construction site. It had not yet done any work that could have created or caused the slipping and tripping hazard claimed by the deliveryman.

The general contractor denies any liability by stating that its job was limited to hiring sub-contractor to do the different phases of the construction work. A Brooklyn Personal Injury Lawyer said it hired architects, engineers and interior designers; it secured all the necessary licenses and permits for the construction work. Also it denies that it can be held liable for negligence under the Labor Code as it is not the employer of the deliveryman.
The only question before the Court is whether or not the complaint should be dismissed.

The Court ruled in favor of dismissal of the causes of action against the owner or the premises who never at any time exercised supervision or control of the construction project. The cause of action against the husband of the owner of the premises is also entitled to a dismissal of the cause of action against him as he is not the owner and has no relationship of supervision or control over the construction project.

The Court opined that liability for causes of action based on common law negligence and for violations of the Labor Code is limited to those who exercised control or supervision over the deliveryman; and to those who had actual or constructive notice of the existence of an unsafe condition that has caused the accident.

Clearly, none of the people and companies sued for damages under common law or the labor code exercised supervision or control over the deliveryman at the time that he delivered the sheet rock. There is no preliminary proof adduced in any of the causes of action that any of the parties here had actual or constructive notice that a dangerous condition existed that caused the deliveryman to slip and fall.

The complaint was dismissed.

Are you an employee who got injured at a worksite? Did you suffer damages as a result of a construction accident? Are you wondering if you can sue? Are you wondering whom to sue? Call the New York City Workers Compensation lawyers at Stephen Bilkis and Associates. They can give you advice on the most viable cause of action to bring. Their New York Workers Compensation attorneys will spare you the nightmare and expense of engaging in costly litigation that will end up in dismissal. You will also need to have some idea of the amount of damages you are likely to obtain. The NYC Slip and Fall Lawyers at Stephen Bilkis and Associates can sit down with you and work out the actual and moral damages you can claim. Call Stephen Bilkis and Associates at any of their offices in the New York area. The NY Slip and fall attorneys there are willing to assist and to represent you.

In June 1969, a woman gave birth to a baby but the baby survived only for five hours. The baby had polycystic kidney disease. This is a genetic and hereditary disease but the couple did not know this at the time of the birth of their first baby. After their first baby was born and soon after the baby died, the woman and her husband spoke to the obstetricians who took care of her during her first pregnancy.

A New York Injury Lawyer said the couple asked the obstetricians plainly if the woman gets pregnant again, would their baby also have the same disease that their first baby died of. The doctors plainly told the couple that the chance that their next baby would have the same polycystic kidney disease was practically zero. The couple relied on this advice by the obstetricians and so the woman conceived soon after.

When the woman gave birth in July 1970, their baby girl was delivered by the same obstetricians. The baby girl also had polycystic kidney disease. The second baby, however, survived for two years suffering much pain before finally succumbing to death from the same polycystic disease.

After their baby died, the couple sued the obstetricians for medical malpractice, stating that their medical advice was erroneous and this caused not only the wrongful life of their daughter but also her painful existence for two years and her death. They also sued to reimburse their medical expenses. They also sued the obstetricians for the personal pain and suffering suffered by the couple.

The couple alleged that the obstetricians were negligent in giving erroneous medical advice. They should have known that polycystic kidney disease was genetic, hereditary and fatal. The couple alleged that they were reckless and heedless; totally disregarding the medical knowledge they should have known.

The trial court dismissed the causes of action for the couple’s emotional distress and for fraud. But the trial court specifically preserved the causes of action for the wrongful life of the child , the reimbursement of medical expenses and the medical malpractice of the obstetricians that was given to the parents.

The couple did not appeal the dismissal of these causes of action. It was the obstetricians who appealed: they appealed the preservation by the trial court of the other causes of action in the complaint especially those for the pain and suffering of the parents consequent to the wrong medical advice given by the obstetricians to them.

The Supreme Court upheld the preservation by the trial court of these causes of action.
The Court noted that during the deliberations of the Court on this case, some who were in the majority were afraid that upholding the preservation of these causes of action would impose on obstetricians the additional duty of being genetic counselors or the duty to insure that every newborn delivered by them would be healthy. A Bronx Personal Injury Lawyer said they were also afraid that the concept of damages will be extended beyond manageable limits.

The Court however ruled that when the negligence of the obstetrician is directly responsible for the physical injury to another, there is no doubt but that the person who was injured can recover damages not only for the physical injury sustained but also for the mental and emotional suffering they suffered consequent to the wrongful act.

Here, the obstetricians were negligent. They gave incorrect and inaccurate medical advice. They gave the advice precipitately without first checking actual medical facts so that they can advice the parents. The woman was the patient of these obstetricians and they owed her a direct duty to make sure that they gave her correct medical information. The woman relied upon the advice given to her by the obstetricians.

Thus, it was established that the obstetricians owed a duty to the mother; they were negligent in performing the duty; the mother suffered injury from the negligence of the obstetricians. A Brooklyn Personal Injury Lawyer said the emotional and mental distress that comes with the injury she suffered must be compensated for in damages.

A New York City Medical Malpractice Attorney must prove negligence on the part of the doctor being sued. In the alternative, a NYC Medical Malpractice lawyer must prove that the doctor being sued deviated from accepted medical practice. A NY Medical Malpractice lawyer must also prove that the deviation from accepted medical practice directly caused the injury sustained.

The plaintiffs in the case are the People of the State of New York. The defendant in the case is Nicolas Pierre Louis.

Plaintiff Argument

The plaintiffs in the case, the People of the State of New York offer a deposition in the case for aggravated harassment by the defendant. A New York Injury Lawyer said the plaintiff states that in between the dates of February 22, 2010 through April of 2010, while employed by the Nassau County District Attorney’s Office, as the Assistant Defensive Attorney, I received a number of voice mails from the defendant, Nicolas Pierre – Louis. The voice mails consisted of screaming, yelling, and the use of profanity. Each of the voice mails are both alarming and annoying, filled with profanity and threats as well as offensive comments. These recordings caused me to fear for both my safety and the safety of one of my co-workers as well.

Defendant argument

The defendant makes the argument that while his statements on the recordings may be both offensive and vulgar, they are protected constitutionally through the right to free speech, under the First Amendment of the Constitution of the United States of America. He states that because of his rights under the first amendment, there is no basis for the criminal charge that the plaintiff is seeking.

A Bronx Personal Injury Lawyer said the defendant argues that though the defendant's statements may be vulgar and offensive, they are constitutionally protected speech and therefore should not form the basis of a criminal charge.

Case Discussion

Over the years, the courts have sought to define areas where free speech is justifiable. There have been many cases throughout the years where the First Amendment right of the freedom of speech has been argued. Cases that have been in favor of the plaintiffs were the direct result of the defendant speaking in a manner that is intended to induce lawless actions and is likely to incite or produce these types of actions. Any type of speech in this manner is not protected by the first amendment. Additionally, if the words used by an individual can be deemed as threatening or harassing in nature and the make the other individual feel truly threatened, the protection of free speech is void. However, the First Amendment does protect individuals from being discriminated against by the government by not allowing the government to proscribe speech or expressive conduct simply because they disapprove of the ideas that are being expressed.

Dismissal Argument

After reviewing the facts of the case, including the supporting deposition as given by the plaintiff, which contains the statements that were made by the defendant, the court has decided that while the statements made by the defendant were in fact vituperative and vulgar, they do not rise to the level of “fighting words” as described by the plaintiffs. A Brooklyn Personal Injury Lawyer said the statements also do not rise to the level of being a true threat. While the defendant does use a number of derisive terms to describe the plaintiff the threats seem to be confined to having the ADA fired.

If you have a legal issue, whether it involves a car accident, medical malpractice mistake or a construction accident, call Stephen Bilkis and Associates for guidance. We will provide you with a free consultation and ensure that your rights are protected.

A woman seeks damages for personal injuries sustained when she slipped and fell (slip and fall) inside parking lot staircase inside of a Center Mall. The premises are jointly owned, managed and operated by the companies who owned the parking garages/lots of the Center Mall. A third party provides certain maintenance and housekeeping services for the Queens Center Mall.

The woman alleges that on the date of the accident, it was an overcast morning with sunrise at 6:22 a.m., and that therefore there was limited natural lighting at the time of the occurrence. The weather records relied upon by moving accused parties indicate that it had rained on the two days prior to the date of the accident with wind gusts up to 53 miles per hour, however that the weather, on the date of the accident, was clear. It is further alleged that the woman was descending the steps of the stairwell when she was caused to slip and fall due to the negligently designed, negligently constructed and/or negligently maintained stairs and treads; recurring wet, slippery, slick and/or damp condition of their stairwell; and unlit or improperly lit condition of their stairwell. A New York Injury Lawyer said the record reveals that the steps are made of cement that is white in color and that there are strip/tread at the edge/nose of each step prior to descending to the next level, that are dark brown or charcoal-colored, and is contrasting in color from the concrete steps. There are also handrails on both sides of the stairs in the subject stairwell.

Furthermore, there was artificial lighting from fluorescent light fixtures that are attached to the walls and there was natural light from the windows facing the north side of the East parking structure, which are sealed shut.

The third party and, separately, the companies move to dismiss the complaint on the ground that they did not create nor did they have notice of the alleged dangerous condition at issue. The motions are opposed by the woman. A Bronx Personal Injury Lawyer said the companies further cross move for leave to amend their cross claims asserted against the third party; and the third party cross moves for summary judgment dismissing the cross claims of the companies and for summary judgment on the third party’s cross claims. The cross motions are opposed by the respective parties.

An owner of property has a duty to maintain his or her premises in a reasonably safe condition, and here that duty included providing a reasonably safe means of ingress and egress to and from the parking garage. An accused that moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. A Brooklyn Personal Injury Lawyer said 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 permit the accused parties’ employees to discover and remedy it. To meet its initial burden on the issue of lack of constructive notice, the accused must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the woman slipped and fell.

The third party met the burden of establishing legitimate entitlement to judgment as a matter of law by demonstrating that they, neither created nor had actual or constructive notice of the allegedly dangerous stairwell. In addition to evidence of its general daily cleaning practices, the third party submitted the affidavits of three housekeeping employees whose duties it was to clean the area where the woman slipped and fell.

The housekeeping employees aver that they had last cleaned the area at some point on the date of the accident, and did not notice any spills or liquids or anything out of the ordinary regarding the stairs. The third party also submitted evidence indicating that it had not received any prior complaints about the area prior to the woman's slip and fall incident.

The woman has offered testimony that on prior occasions, she observed water on the stairs and lack of lighting in the staircase to impute constructive notice. However, a general awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused the woman’s slip and fall accident.

In addition, the third party submits that shortly after the woman’s fall, a security officer arrived at the accident site while the woman was still present. The third party submits that the security officer observed that the staircase was dry and well-lit by both natural and artificial lighting and observed that the woman's clothing were not wet. He then prepared an incident report reflecting the fact that the staircase was dry and well-lit, and was observed by another security officer while he took two (2) photographs of the unaltered area. The photographs depict a dry and lighted area.

In opposition to the third party’s legitimate showing, the woman failed to raise a triable issue of fact as to whether there was water or some other liquid on the stairwell where she fell, or whether the third party created or had actual or constructive notice of the allegedly dangerous condition. In the absence of evidence establishing the elements of actual or constructive notice, any conclusion that such notice existed would be based upon pure speculation, which is legally insufficient to support the complainant's cause of action. Here, since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation.

The woman also alleges that there were defects in the stairway (oversized treads) which, according to her expert are in violation of certain statutes and codes. Even if an expert alludes to potential defects on a stairway, the woman still must establish that the slip and fall was connected to the supposed defect, absent which summary judgment is appropriate. The third party met its burden of demonstrating the absence of notice as a matter of law, and that it did not create the condition at issue.

As owners, the accused were responsible for the lighting of the premises. In addition to the water condition, the woman alleges that the premises were inadequately lit. The accused contend that the premises were properly lit and, in any event, such alleged inadequate lighting was not the proximate cause of the accident.

It is the woman's initial burden to show that the accused parties’ negligence was a substantial cause of the events which produced the injury. The woman’s claim that her slip and fall was caused by inadequate illumination is belied by her admission upon her examination before trial testimony that she fell as a result of slipping on water on the stair with no mention of being unable to properly see. In fact, the woman also testified at her deposition that there was adequate lighting to descend the subject stairs and to perceive any alleged water on the subject stairs. Consequently, no matter what the lighting condition, it was not a proximate cause of her slip and fall.

The accused also submitted the affidavit of the person who inspected the premises approximately one (1) hour after sunrise, in order to be consistent with the time the woman’s accident allegedly occurred. The inspection was conducted immediately following the cessation of a significant rain storm marked by high wind gusts and it was overcast at the time of the inspection. Following the inspection wherein it was revealed that the illumination levels in the staircase exceeded the illumination requirements of the 1968 New York City Building Code, the inspector opined that the lighting condition was not the proximate cause of the accident.

We are responsible for our every action and we should not make it a habit to point fingers when things go wrong. If you are being sued for the an accident that you did not intend to happen, call the office of Stephen Bilkis and Associates and consult a NY Injury Attorney or a New York Personal Injury Lawyer. If you already suffered financial downfall due to wrongful accident accusations, seek the help of NY Worker’s Compensation Attorney to help you make sure that you get what you truly deserve.

A woman first came to see the obstetrician on October 14, 2004. She was told that she was estimated to deliver around May 29, 2005. On her first visit, her blood pressure was 100/60. Her first sonogram showed that the size of the fetus was consistent with the due date. But later sonograms showed that the fetus was larger than its gestational age.

A New York Injury Lawyer said by the middle of the month of May, the woman had edema of the hands and feet, her urine had traces of protein and she reported spotting in her vision. On June 6, she reported shivering and on June 7, she reported that she did not feel any heartbeat.

The woman still had not given birth by June 8, 2005 but when she felt tightness in her abdomen and saw blood on her underpants, she went to the hospital. She was noted to have contractions and was placed on a fetal monitor. She was found to only be one to two centimeters dilated.
Later while in the labor room, the fetal heartbeat decreased. The doctor ruptured the membranes and thick meconium was noted. The baby was delivered by cesarean section. When he came out, there was no heartbeat for the first ten minutes of his life. On the fifteenth minute, a faint heartbeat was noted.

The baby was transferred to a neonatal intensive care unit. The doctors there diagnosed the child to have meconium aspiration syndrome, metabolic acidosis, pulmonary hypertension, seizure activity, hypoxic ischemic encephalopathy and anemia. On June 12, when no improvement was noted in the baby’s condition, treatment was withdrawn: the baby was taken off the ventilator and he was pronounced dead at 4:00 p.m.

The mother sued for medical malpractice against the obstetrician who failed to deliver her baby even when she was already overdue. She sued for her own emotional distress and pain at the death of her fetus. But then the mother sued also as the legal representative of her son’s estate claiming that since he lived for those few days, he should be considered alive and thus, his estate can sue for his wrongful death due to the medical malpractice and negligence of the obstetrician who delivered him and of the hospital staff who failed to note that the baby was already in distress and should have been immediately delivered via cesarean section.

The obstetrician and the hospital staff filed motions for summary judgment asking for the dismissal of the complaint. A Bronx Personal Injury Lawyer said they produced the affidavits of two expert witnesses who both testified that the obstetrician and the hospital did not deviate from any accepted medical practice. They both affirmed that the treatment of the woman and of the baby was well within the standard of care prescribed by the medical profession. They also both affirmed that there was no way to predict or prevent fetal hemorrhage. The injuries and subsequent death of the baby was not caused by any deviation from good and accepted medical practice by the doctor or the hospital staff.

The two expert witnesses for the defendants differed in their assessment of whether or not the child was stillborn or born dead. A Brooklyn Personal Injury Lawyer said that one opined that the fetus had a heartbeat while still inside the uterus. It had a faint heartbeat that was not immediately noted.

The expert witness of the woman stated that the fetus was not born alive because it had no signs of life when it was completely expelled from the mother.

The Court that the motion for summary judgment should be denied when there exists any material issue of fact that must be tried. Here, the issue of whether the child was born dead or alive must be tried. On this issue hinges the fate of the cause of action of the child’s estate. If the child were born alive, then the cause of action for wrongful death filed by the child’s estate is legally viable. But if the child were born dead, then the mother’s own individual cause of action for emotional distress from her child’s stillbirth cannot be sustained as legally compensable if there is no physical pain directly sustained by the mother.

The Court upheld the denial of the motion for summary judgment.

A New York Medical Malpractice Lawyer must prove material issues of fact that must be tried before a jury. A New York City Medical Malpractice Lawyer must also prove that the doctor being sued failed to perform his duty in accordance with medically accepted standards. At Stephen Bilkis and Associates, their NYC Medical Malpractice attorneys are willing to sit with you and analyze the facts of your case. Their NY Medical Malpractice attorneys are available to render advice as to the viability of your claim for medical malpractice. Call Stephen Bilkis and Associates today.

A man owned a Chesapeake Bay retriever. It attacked the daughter of his neighbor and caused serious injury to her. The father brought suit against the dog owner and asked the court to declare the Chesapeake Bay retriever a dangerous dog.

A New York Injury Lawyer said a dangerous dog is defined as one who has attacked a person or another animal without justification and has caused serious injury. Under the law, the owner who allows his dog to bite another person knowing that his dog has a propensity to bite shall pay restitution not exceeding $1,500 plus penalties and pay unreimbursed medical expenses, lost earnings and other damages resulting from the injury. The dog will also be put down. Further, the law mandated that the owner of the dog shall be strictly liable for medical costs resulting from injury caused by his dog.

The judge made an oral decision declaring the Chesapeake Bay retriever was a dangerous dog. He imposed the $1,500 civil penalty. The judge declared also that the owner was strictly liable for the unreimbursed medical expenses. The judge deferred ordering the euthanasia of the dog as it had already been sold.

The dog owner filed an action seeking the clarification of the judge’s decision. He asked for clarification on the concept of negligence and strict liability used by the judge in his oral decision.

The only issues presented here is whether the common law negligence applies here; whether the strict liability for unreimbursed medical expenses still have to be paid.

A Bronx Personal Injury Lawyer said the Court held that prior to the 2004 amendments of the Agriculture and Markets Law, a person who got bitten by a dangerous dog had to choose whether he would sue under the common law negligence or sue under the statutory “vicious propensity” theory.

The Court of Appeals has decided in a case that after the amendments, those bitten by a dangerous dog only have one recourse and that is to file suit under the statute. There is no more common law cause of action for negligence against the owner of a dog who bites another.
The Court also held that it will take this opportunity to explain exactly what the statute means when it used the terms “negligence,” “strict liability,” and “civil penalties.” This ruling will put to rest all questions regarding what kind of damages a person can ask for when he is bitten by a dangerous dog.

The Court held that the amendments in 2004 aimed to give the courts more control over dangerous dogs by making their owners accountable. It also aimed to increase the judge’s discretion in imposing penalties on the dog owner.

The Court held that under the statute as amended, a person bitten by a dog must first prove that the dog was a dangerous dog. A Brooklyn Personal Injury Lawyer said if the owner of the dog knew that the dog was dangerous, or, that the owner did not exercise his duty of care to make sure that his dog could not bite anyone. The Court held that the father of the child who got bitted by the dog here has met his burden when he introduced evidence that the attack by the dog on his daughter was unprovoked. He has succeeded in establishing the dog’s vicious propensity and the owner’s negligence. This proof entitled the father to the payment of damages in the amount of $1,500.

The Court also held that insofar as the award for payment of unreimbursed medical expenses, the dog owner had strict liability. That is, there is no need to present proof of negligence. The only thing the father had to prove was the injury to his daughter and the medical costs he has incurred.

The Court held that the amendments to the law granted jurisdiction to the courts to enter judgments for unlimited amounts of medical expenses arising from dangerous dog attacks. The Court further held that the duty to compensate for unreimbursed medical expenses is a continuing obligation.

The Court ordered the father to present evidence on the exact amount of medical expenses he has incurred in connection with the treatment of his daughter’s dog bite. If necessary, a damages hearing shall be scheduled.

At Stephen Bilkis and Associates, their New York Dog Bite Lawyers will assist you in presenting evidence that the attack upon you was unprovoked. Their New York City Dog Bite Lawyers will also help you present evidence of the injuries you sustained. Whether you have been injured in a car accident, because of a medical malpractice case or construction accident, we will advise you to keep all receipts for doctor’s fees, hospital fees and receipts for purchase of medicine. All these will constitute the amount of actual damages you are entitled to. Call Stephen Bilkis and Associates today and speak to any of their NYC Dog Bite Attorneys at any of their offices conveniently located around the New York area.

Plaintiff was admitted to one of the defendants' hospitals for a cesarean section (birth injury or birth injury accident), the second of such procedures performed upon her, and emerged therefrom a paraplegic (paraplegia). The instant action was then commenced against defendants.

Were the defendants negligent that would warrant a finding of medical malpractice?

Plaintiffs introduced medical experts whose view were to the effect that the injuries to the plaintiff resulted from a compression of the arteries supplying blood to the spinal cord, and this view found some further support in the hospital's own records, in a note containing the impression that the plaintiff was suffering from paralysis as a result of the compressing of her spinal cord.

A New York Injury Lawyer said the evidence presented a sharp issue of fact; whether plaintiff’s injury was caused by a negligent interference with the blood supply to her spinal cord or whether it was the result of any other source.

The trial court ruled in favor of the plaintiffs.

The defendants' contend that the verdict was against the weight of the evidence which is founded in the testimony of their own medical experts.

Emphasis must be given on the fact that the resolution of conflicting evidence, as well as the credibility of witnesses, is a matter for the jury to determine, and not the court. The plaintiffs are entitled to the benefit of every favorable inference which can reasonably be drawn from the facts, and the finding of the jury may be disturbed only if it may be said that the preponderance of the evidence in this case was so great that the jury could not have reached the verdict it did on any fair interpretation of such evidence.

The defendants also contend that certain remarks made by plaintiffs' counsel in his closing statement that “it was his "theory" that the doctors performing the cesarean had intentionally compressed the artery supplying blood to the area in question in order to stop plaintiff from hemorrhaging and in order to provide a clean operational field” were highly prejudicial and mandate reversal.

It must be noted from the testimony presented that the surgical procedure was improperly delayed for a matter of hours by defendants' servants; and, as testified to by defendants' witnesses, each step in a second cesarean procedure should take longer than the corresponding step in the initial cesarean procedure. A Bronx Personal Injury Lawyer said in the second operational procedure involving plaintiff, however, the infant was delivered only 13 minutes after commencement of the operation, whereas in the first cesarean section performed upon her, the infant had been delivered 18 minutes after commencement of the operation. From these facts, it could fairly be inferred that the early part of the second procedure was performed with untoward haste. Evidence was also adduced that during the 13 minutes after the commencement of the second procedure plaintiff sustained a four centimeter tear in her uterus. Plaintiffs' expert in obstetrics testified that such a tear should engender considerable bleeding. However, evidence of plaintiff’s blood loss during this procedure demonstrated that such blood loss was below what is normal for such type of surgery. It could be reasonably inferred from such evidence that action was taken in the initial stages of surgery to restrict blood loss and such inference has support in the testimony of defendants' expert in obstetrics, who stated that the only way to cause an injury of the type that resulted in this case is to restrict the blood supply; and that in certain life-threatening situations it is proper to clamp the aorta in order to prevent hemorrhaging in the pelvic area and to provide a clean surgical field. It should be noted further that the issue of intentional clamping of the aorta as being a possible causative factor of the restricting of blood flow and any resultant injury was addressed by the defendants' counsel both in his cross-examination of one of the plaintiffs' expert witnesses and in the direct examination of his own experts.

The trial court ruled that the remarks in question were fair comment and that since plaintiff was unconscious at the time of the operation, she could not know exactly what occurred; as a result, a Brooklyn Personal Injury Lawyer said the court ruled that she was entitled to argue any theory consistent with the proof offered at trial.

The herein court agrees with the trial court’s rulings.

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Kings County Personal Injury 125

The plaintiff in the case is Don J. Peters and the defendant in this case is the City of New York, et al. The other plaintiff in the case is Charlene Cowan and the defendant in this case is the City of New York, et al.

About the Case

A New York Injury Lawyer said this case consists of action one and action two, which are related actions. Action one is titled Peters versus City of New York and action two is titled Cowan versus City of New York.

The plaintiff in the first action, Peters, is seeking an order that strikes the answers of the City of New York and the New York City Health and Hospitals Corporation from action number one and also to allow him an extension of time to file a statement of readiness and a note of issue. He also seeks a summary judgment for to dismiss the complaint made against him by Cowan.

The plaintiff in action two, Charlene Cowan, is seeking an order that seeks to strike the answers provided by the City of New York and the New York City Health and Hospitals on the basis that they failed to comply with the previous orders of the court. In alternative, a Brooklyn Personal Injury Lawyer said Cowan seeks to extend her time to file and serve a note of issue until the defendants have complied with the order.

Peters, is a defendant in the second action and makes a cross motion for an order to strike the answers provided by the City and NYCHHC or to preclude them from offering any testimony if action two comes to trial.

Faiz Ahmed, another defendant in the case also makes a cross motion to order that the answers given by the City and NYCHHC are removed or precluded from offering testimony when action 2 comes to trial. A Bronx Personal Injury Lawyer said he also wishes to dismiss any cross claims that are made by the defendants against him in this action.

Both the City and NYCHHC cross move for a summary judgment to dismiss Peter’s complaint against them in the first action.

Case Facts

The reason for the case is the result of an accident that occurred on the 17th of June in 1994 when Peters was driving near the Eastern Parkway intersection and collided with a vehicle that was being driven by Ahmed.

An ambulance stopped at the scene of the car accident and placed flairs around the vehicles. While the two paramedics were moving Peters via stretcher to the ambulance, a Jeep that was owned by Karen Ford and driven by Keith Church-Ford, struck Peters car, which propelled it towards the ambulance causing injury to one of the paramedics, further injuring Peters, and killing the other paramedic. Church-Ford was intoxicated at the time of the accident.

Peters began the first action against the City, NYCHHC, Karen, Ahmed, and Church-Ford, seeking damages for the personal injuries that he sustained in the accident.

Case Results

After reviewing the facts of the accident and the case, the Court denies all actions against the City and NYCHHC for their failure to comply with discovery. The cross motions by the City and NYCHHC seeking summary judgment to dismiss the cases against them are granted. The motion by Peters to dismiss the complaint against him made by Cowan is granted. The cross motion of Ahmed that seeks summary judgment is denied.

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There are two appeals or two cases before the court.

On 24 May 1975, a family were riding in their station wagon but had to stop at the side of the Southern State Parkway in Nassau County due to mechanical difficulties. The father and driver, alighted from the vehicle, went around to the rear, and leaned inside the open tailgate window. The wife remained seated in the front passenger seat, and their daughter was in the rear seat. At this point, the station wagon was struck in the rear by an automobile owned by defendant-one and driven by defendant-two. The father was seriously injured in the car accident when he was pinned between the two vehicles. The mother and daughter were thrown about the station wagon by the force of the impact but suffered less serious physical injuries than the father. Although neither mother nor daughter actually saw the car strike their station wagon as they were facing forward or to the side, both were instantly aware of the impact and the fact that the father must have been injured and each thereafter immediately observed their seriously injured husband and father.

While on 3 June 1978, a father and a mother were riding with their two infant daughters in the family car along a roadway in the Mid-Westchester Mall in Cortlandt, New York. A New York Injury Lawyer the father was driving the vehicle, his wife, was in the front passenger seat with their one-year-old daughter in her lap, and their other four-year-old daughter was also seated in the car. Their car was struck by an automobile owned by another defendant-one and driven by another defendant-two, allegedly, in a reckless manner and at an excessive speed (car accident or auto accident). The mother suffered a fractured clavicle in the collision, the father sustained a broken finger, and the four-year-old daughter suffered abdominal injuries. Their one-year-old daughter died a few hours after the accident as a result of her various, severe injuries, alleged in the complaint to have been observed by plaintiffs.

The two appeals pose the same question of law--whether in addition to or apart from other damages to which a plaintiff may be entitled in consequence of the negligence of the defendant, he may recover for emotional distress occasioned by his witnessing injury (personal injury) or death (wrongful death) caused by the defendant's conduct to a member of the plaintiff's immediate family.

Should the concept of duty in tort be extended to third persons who do not sustain any physical impact in the accident or fear for their own safety?

A Brooklyn Personal Injury Lawyer said traditionally, courts have been reluctant to recognize any liability for the mental distress which may result from the observation of a third person's peril or harm; that liability to the foreseeable bystander could not be limited in any rational way and could lead to unlimited liability for negligent conduct; that there is no cause of action for the emotional distress suffered by the foreseeable observer of an accident. It is this foreseeability approach that has been rejected by the courts. However, foreseeability is not the sole test of whether a legally cognizable duty is owed.

Although the approach of permitting recovery "for the inseparable consequences of fear for" a relative's safety, as well as one's own safety, where the plaintiff is in the zone of danger "has been said to be a rather arbitrary limiting rule"; however, arbitrary distinctions are an inevitable result of the drawing of lines which circumscribe legal duties, and that delineation of limits of liability in tort actions is usually determined on the basis of considerations of public policy.

A Bronx Personal Injury Lawyer the zone-of-danger rule, which allows one who is himself or herself threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family, is said to have become the majority rule in this country. It is premised on the traditional negligence concept that by unreasonably endangering the plaintiff's physical safety the defendant has breached a duty owed to him or her where he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant's conduct. Recognition of this right to recover for emotional distress attributable to observation of injuries suffered by a member of the immediate family involves a broadening of the duty concept but not the creation of a duty to a plaintiff to whom the defendant is not already recognized as owing a duty to avoid bodily harm. In so doing it permits recovery for an element of damages not heretofore allowed. Use of the zone-of-danger rule thus mitigates the possibility of unlimited recovery, an overriding apprehension expressed in a landmark case, by restricting liability in a much narrower fashion.

Additionally, the circumstances in which a plaintiff who is within the zone of danger suffers serious emotional distress from observing severe physical injury or death of a member of the immediate family may not be altogether common.

The general rule, as explained by the American Law, is that there cannot be recovery for emotional disturbance, or its consequences, arising from the peril of a third person. The exception lies in the fact that the defendant, by his negligence, has endangered the plaintiff's own safety and threatened him with bodily harm so that the defendant is in breach of an original duty to the plaintiff to exercise care for his protection."

Where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family--assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death.

The court rejects any suggestion that the zone-of-danger rule is overly susceptible to fraudulent claims or that the emotional injuries claimed here are incapable of acceptable proof. The court has previously disposed of these arguments in one case and held that: "Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction. The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one. The only substantial policy argument is that the damages or injuries are somewhat speculative and difficult to prove.

However, the question of proof in individual situations should not be the arbitrary basis upon which to bar all actions. In the difficult cases, we must look to the quality and genuineness of proof, and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court and the jury to weed out the dishonest claims.

The court is not suggesting that any trifling distress would be sufficient to support recovery of damages under the zone-of-danger rule. Rather, the emotional disturbance suffered must be serious and verifiable. Additionally, the compensable emotional distress must be tied, as a matter of proximate causation, to the observation of the serious injury or death of the family member and such injury or death must have been caused by the conduct of the defendant.

The zone-of-danger rule adopted in the instant case is not inconsistent with the past decisions of the courts that have denied recovery for emotional distress attributable to a family member's death or injury. None of those cases involved plaintiffs subjected to a danger of bodily harm, although some of the plaintiffs had been present during, had observed, and even had participated in the negligent conduct.

The court is not creating a new cause of action which has not heretofore existed under the tort law of New York; rather, recognizing the right of a plaintiff to whom the defendant has owed but breached a duty of reasonable care (as determined under traditional tort principles) to recover as an element of his or her damages, those damages attributable to emotional distress caused by contemporaneous observation of injury or death of a member of the immediate family caused by the same conduct of the defendant. There may be an enlargement of the scope of recoverable damages but there is no recognition of a new cause of action or of a cause of action in favor of a party not previously recognized as entitled thereto. In conformity with traditional tort principles, the touchstone of liability in these cases is the breach by the defendant of a duty of due care owed the plaintiff.

Thus, the factual situations claimed bring both cases within the zone-of-danger rule. In each case plaintiffs assert that they were subjected to an unreasonable risk of bodily injury by negligent conduct on the part of defendants. In each, the seriously injured or deceased person was a member of the immediate family of plaintiffs, each of whom alleges serious emotional trauma as a result of observing the injury or death.

Although plaintiffs under the first appeal did not actually see the husband/father being injured, they do assert their instantaneous awareness that he had been injured as well as their observation of him immediately after he was struck by defendants' automobile.

Plaintiffs under the second appeal claim similar observations.

The claims in both cases are sufficient, if substantiated by the evidence, to entitle plaintiffs to recover for their asserted emotional distress damages.

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The plaintiff in this case was David Weber. The defendant was Joseph Kowalski.

Case Facts

A car accident occurred on July 15th, 1972. The plaintiff, his wife, and his two young children were traveling in Putnam County when a collision occurred between his vehicle and the one driven by Joseph Kowalski. In 1974, two law suits were initiated in the Dutchess County Supreme Court. The first, in January was filed by Weber and his wife. The second, a month later, was on behalf of their children. The court ordered the two cases consolidated. An application for general preference was made. This was subsequently denied, and the consolidated action was ordered to be transferred to the County Court after 90 days unless the application was renewed, which it was.

The following damages were sought by Weber:

1. $50000 for himself
2. $25000 on behalf of each child
3. $35000 for loss of services
4. $1500 property damage.

A New York Injury Lawyer said that lthough permanent injuries were alleged to have been sustained by the children, E.R. Records state that no significant lacerations were noted. The Weber's claimed special damages in the amount of $51 for glasses, $2400 for lost wages, $116 for hospital fees and $196 for doctors. Although Mrs. Weber was diagnosed with emotional distress, five letters from physicians dispute any claims of permanent disability.

Claims

The initial application for general preference was denied. The plaintiffs argued in support of the grant of preferences based on the value of the claim and the inclusion of the number of plaintiffs which they state requires hearing in the Supreme Court. A Bronx Criminal Lawyer said they also claimed that there is a lack of jurisdiction over the defendant because he is not a Dutchess County resident, and that they have a right to a jury trial.

History

Policy is shaped to encourage cases to be heard in inferior courts if the actions are within the jurisdiction of those courts. In the case of New York, if a personal injury case is not expected to result in damages higher than $10,000; those cases are placed on a non-preferred calendar. Very few of those cases are ever heard in the Supreme Court.

Value

Essentially, the plaintiffs were unable to convince the court that each claim in the case would potentially result in damages being awarded in the excess of $10000. In order to do so, significant medical evidence would have to be present that supported the claim of serious injuries. No documents as such were provided in the case of the infant's injuries. A Brooklyn Personal Injury Lawyer said the medical evidence indicates that Mrs. Weber's injuries were not significant in the first place, and those which were present were recovered from. The total special damages are well within the value of cases which can be heard in County Court.

Jurisdiction

A problem arises in the case in the case of jurisdiction, because the County Court does not have In Personam jurisdiction over defendants that are not residents. This may or may not have be a problem however, because within the Ninth Judicial District, if the defendant waives any objections related to In Personum jurisdiction, the motion to have the case heard in the Supreme Court based on jurisdictional conflicts can be denied.

Results

The ruling stated that the plaintiff could reargue the case for being heard in the Supreme Court, but that the re-argument was conditionally denied. The denial required that the defendant file an affidavit with the Calendar Clerk which stated that In Personum jurisdictional objections would not be raised. In the event that such an affidavit was not filed, the application for general preference would be approved.

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The plaintiff in the case is Tower Insurance Company of New York. The defendants in the case are Jose Reyes and Camille Khan.

Case History

A New York Injury Lawyer said the case is a declaratory judgment action. The plaintiff, Tower Insurance Company of New York, is seeking a judgment to declare that it does not have a duty to indemnify or defend the defendant in a personal injury action that is titled Reyes versus Khan.

The plaintiff is seeking an order to grant movant summary judgment in their favor in this declaratory judgment action.

The defendant, Jose Reyes, cross moves for a declaration that states that Tower Insurance Company does have a duty to defend him in the Khan Reyes Action.

Case Background

Reyes is an employee of Aerco Construction Company. While working on October 28, 2006, Reyes was injured in a construction accident while working at a site on Liberty Avenue that is owned by Khan. He commenced the action against Khan on August 28, 2007. He alleges causes of action as negligence and a violation of labor law 200, 240, and 241.

Tower Insurance Company issued a homeowners insurance policy to Khan for the property on February 2, 2006 and the policy expired on February 2, 2007. Tower Insurance Company disclaimed coverage for the accident stating the property did not qualify as an “insured location.”

According to the defendant, Tower Insurance Company, in order for the property to be covered by the policy, Kahn would have to reside on the property. The company claims that Khan never lived in the property.

Case Discussion

In a declaratory judgment action, a defendant must establish the rights of the parties on a particular subject matter. Evidence must be established to prove prima facie by the movant.

In this case the policy that was issued to Khan states that the property is owned, occupied and a two family home. A Bronx Personal Injury Lawyer said the application for insurance submitted to the defendant specifically asks whether the applicant owns any other residence and this is answered “no.” Kahn states that she does not recall signing any of the agreements for the insurance policy. She also does not deny that the application for the policy misrepresents her view of the property.

The policy clearly states that an insured location consists of the premises where the policy holder resides. Residence premises are defined as a two family dwelling where you live in at least one of the units.

Case Results

In summary, it is determined that the defendants opposition of the policy attempts to create a coverage for the property that did not exist. For this reason the court has ordered the following;

The motion for summary judgment by Tower Insurance Company declaring they are not obliged to provide a defense for or provide coverage for the defendant Camille Khan in the personal injury action of Reyes versus Khan is granted. It is also declared that Tower Insurance Company does not have to provide coverage for or defense to Camille Khan in the pending action in Kings County.

A Brooklyn Personal Injury Lawyer said the cross motion by Jose Reyes for a summary judgment is denied in this case. The Court also orders that Tower Insurance Company of New York shall be awarded all costs and disbursements as taxed by the Clerk of the Court upon an appropriate bill of costs being submitted.

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A New York Injury Lawyer said the plaintiff in the case is the People of the State of New York. The defendant in the case is Nicolas Pierre Louis.

Case History

This case begins on or around February 22, 2010. A New York Injury Lawyer said the deposition from the plaintiff states that while employed as an Assistant District Attorney in the Nassau County District Attorney’s office, he began receiving voice mails from the defendant, Nicolas Pierre-Louis. The voice mails that were left on his phone were derogatory in nature and included statements such as “I’m coming at you with fury,” and “Bitch, you will lose your fucking job,” as well as many other profanities and offensive statements.

The plaintiff states that the voicemails that he received were alarming and annoying. He also states that he feared for his safety as well as the safety of another Assistant District Attorney that worked in the office.

Defendant Argument

The defendant argues that although his statements were vulgar in nature and offensive, they are protected through the right of free speech and therefore should not form the basis for a criminal charge against him.

Plaintiff Argument

The plaintiff in the case offers the voicemails and transcripts of what was left on his voicemail as evidence of harassment. He states that he was fearful by the anger and the comments that were made by the defendant and that this constitutes the basis for harassment charges.

Case Discussion

A Bronx Personal Injury Lawyer said the issue of freedom of speech is one that has been contemplated in courts many times over the years. The issue arises when statements are made that others may find harmful and insulting. In the case of Chaplinsky versus New Hampshire described the use of “fighting words” or words that by their very expression tend to incite an immediate breech of peace. In this case the prosecution of the defendant was permitted on the basis of the speech that was given. Additionally, there have been cases that allowed the prosecution of the defendant where words sought to produce lawless actions or were true threats. A true threat is a statement where the speaker intends to communicate the intent of harm to an individual or a group of individuals.

On the other side of the issue, courts have been quick to strike down cases where the laws proscribe that the speech is entitled to First Amendment protection. One such case is that of Simon versus Schuster, which the court stated that “Regulations that permit the government to discriminate on the basis of content of the message cannot be tolerated under the First Amendment.”

Case Results

In this particular case, the vagueness and overbreadth of the statements made by the defendant are apparent. Even the statement of “I am coming at you with fury,” is not deemed to be threatening to a level that constitutes over riding the freedom of speech amendment. A Westchester County Personal Injury Lawyer said that lthough the statements that were left on the plaintiff’s voice mail are disturbing, vulgar, and filled with profanities, the statements are not felt to constitute “fighting words.”

For these reasons the court finds in favor of the defendant. According to the principles of the First Amendment, the Court dismisses the case.

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Kings County Personal Injury 143

The plaintiffs in the case are Progressive Max Insurance Company, Progressive Preferred Insurance Company, and Progressive Specialty Insurance Company. There are several defendants in the case, claims one through eight individual defendants.

Case Results
The plaintiffs have an entry of default against the defendants, from groups one through eight of the individual defendants in the case. The motion by the plaintiffs is pursuant of CPLR 3215(a). The plaintiff has proven jurisdiction by annexing copies of the affidavits of service from the summons and the complaints that have been made by the defendants. These affidavits prove the defendants default in the affirmation of counsel. The plaintiff issues a supporting affidavit to prove these claims.

A New York Injury Lawyer said that based on the evidence provided by the plaintiff, the court orders that the plaintiff is not contractually obligated to defend, provide indemnity coverage, or provide liability coverage in any future or pending personal injury or property damages. Additionally, the plaintiff does not have the obligation to provide coverage for any claims of uninsured motorist or no fault motorist coverage that is made by any of the defendants in this group.

The plaintiff withdraws the portion of its motion that sought a time extension and substituted service for the following defendants: Antoine Emmanuel, Spencer Vtxama, Rashed Mohammed, George Brathwaite, Keith Johnson, Herold Pierre, Jefferson Etienne, Junior Pierre, Demetri Alie, Jovany King, Luis Hernandez, Stanley Joseph, Eddie Aristhene, Rosento Gonzalez, Allister Sylvester, Tony Auguste, Menalo Luxana, Nora Alverez, Walter Anderson, Joy Christina Kaiser, Ketan Vora, and William Todd Pordy.

The plaintiff also received and executed the Stipulation of Discontinuance with Prejudices to the defendants Vincenza Scandiffio and Regina Scandiffio and withdraws this portion of their motion as well.

A Bronx Personal Injury Lawyer said the plaintiff is seeking a summary judgment in their favor against the defendant Ozone Park Medical Healthcare and the defendant opposes this motion.

The plaintiff submits that the defendant Ozone denied having any information or knowledge to form a belief as to the allegations in the verified complaint. This includes a paragraph in the complaint that alleges the defendant, Ozone, submitted a request for a no-fault reimbursement for the individuals that were involved in the loss of Eddie Aristhene in August of 2009. A Brooklyn Criminal Lawyer said the plaintiff makes the argument that they defendant does not even know that it submitted the claim treatment, which defines this as a “sham loss” and therefore entitles the plaintiff to a summary judgment.

The defendant, Ozone, argues that the plaintiff has failed to establish that they are not entitled to the no fault medical benefits from the plaintiff for the services that were provided to its assignors as stated by law.

The court rules that in this case the plaintiff has demonstrated prima facie in this case against the defendant. Since the plaintiff has demonstrated prima facie, the burden now falls to the defendant to come up with confident evidence proving triable issues exist.

The court has found that the defendant, Ozone, has offered no evidence to support their claims and thus provided no proof of triable evidence against the plaintiff. For this reason, the court finds in favor of the plaintiff and grants the summary judgment in favor of the plaintiff and dismissed the case from Ozone.

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The plaintiff in the case is Alex Grunberger. The defendant in the case is S & Z Service Station Inc.

Case History

The defendant has filed a motion on August 10, 2009 for an order that grants a summary judgment in the case. A New York Injury Lawyer said the summary judgment requested is in favor of the defendant finding they owe no liability to the plaintiff, Alex Grunberger.

The action and verified complaint were filed by the plaintiff on June 24, 2008. The defendant responded with a verified answer on August 5, 2008.

Plaintiff Argument

The verified complaint issued by the plaintiff lists 10 allegations of fact and one cause of action for personal injuries that he incurred during a car accident, which was a result of negligence by the defendant. The substance of the claim made by the plaintiff states that the defendant inspected and repaired his car and released it to him to drive. The brakes on the car were defective and because of this the plaintiff crashed his vehicle and suffered injuries.

Defendant Argument

The defendant offers nine annexed exhibits, affirmation of counsel, and memorandum of law. The exhibits are labeled A through I and consist of the following: Exhibit A is a website printout from the Unified Court System in New York State, Exhibit B is a copy of the verified bill of particulars of the plaintiff, Exhibit C is the instant summons and verified complaint, Exhibit D is a copy of the defendants verified answer, Exhibit E is a copy of the deposition of the plaintiff, Exhibit F is a copy of the transcript given by former employee Peter Kulsum, Exhibit G is a copy of the response of the plaintiff to the defendants discovery demands, Exhibit H contains copies of medical reports as procured by the plaintiff, and Exhibit I contains a medical report procured by the defendant.

Dismissal Argument

A Brooklyn Personal Injury Lawyer said the defendant is seeking summary judgment for three separate issues. The first is that the injuries that were sustained by the plaintiff do not meet the serious injury threshold that is prescribed by insurance law 5102. Second, the defendant argues that they were not liable to the plaintiff for brake failure as they were not hired to fix such an issue. Third, the defendant states that the plaintiff’s spoiling of evidence warrants the case being dismissed.

Case Results

In the memorandum of law submitted by the defendant, the defendant withdraws the first basis of its summary as it is noted that the serious injury requirement is not applicable in this case.

To support the second basis the defendant submits a transcript from the plaintiff’s deposition testimony and the testimony from one of their employees. However, it is found by the court that the testimony from the employee, Peter Kulsum, lacks knowledge about the accident which occurred and is therefore dismissed.

In this case it is found that the defendants have failed to make prima facie in regard to not being responsible for damaging the brakes on the plaintiff’s car and for failing to recognize a problem with the brakes before releasing the car to the plaintiff. A Brooklyn Personal Injury Lawyer said for this reason the court denies the motion for summary judgment in favor of the defendant.

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http://http://www.1800nynylaw.com/The plaintiffs in the case are Roseann Caracciolo individually and Roseann Caracciolo as the proposed administrator of the assets of her late husband, Pasquale. The defendants in the case are Ralph Peluso, M.D., Mladen Solar, M.D., The Staten Island University Hospital, the Brooklyn Family Medical Associates, Joseph McGinn, M.D., and Donald McCord, M.D.

The Case

Through the motion that was filed on the 7th of February, 2007, the defendants Donald McCord and Mladen Solar jointly move to discharge the grievance made by the plaintiff based on the fact that the plaintiff lacks the means to sue. By a cross motion that was filed on the 15th of February, 2007, defendants Brooklyn Family Medical Associates, Ralph Peluso, and the Staten Island University Hospital for dismissal of the case based on the same reasons. Defendant Joseph McGinn moves for the same release for the same reasons. According to a New York Injury Lawyer, the plaintiff is against the motions as well as the cross motions of the defendants/movants.

By the cross motion filed by the plaintiff on the 8th of March, 2007, the plaintiff moves to alternate the parties and to revise the caption.

Case Facts

The undisputed facts of the case are that on the 26th of December, 2004, Pasquale Caracciolo died. On the 13th of December, 2006, his spouse, Roseann initiated the action against the defendants through filing a complaint and summons with the Clerks office of Kings County. In the summons, she was named as the proposed administrator of the estate and herself and her husband as the individual plaintiffs. There are 3 causes of action in the complaint as well as 56 allegations.

The cause of action listed first is a medical malpractice suit filed against all of the defendants in regard to the medical treatment and care of the deceased. The 2nd cause of action avers the liability of the defendants in the untimely death of Pasquale Caracciolo. The 3rd cause of action avers the loss of services to the plaintiff as a result of her husband’s untimely death.

In January of the year 2007, the defendants responded to the complaint joined in issue with each other. On the 20th of February 2007, the plaintiff was appointed as the administrator of the assets of her late husband through the Surrogate’s Court of the State of New York. When the action was commenced by the plaintiff she had not been selected as the administrator of the estate.

Defendants Argument

According to a Brooklyn Personal Injury Lawyer, each of the defendants/movants motions for dismissal is supported by a copy of the complaint and summons, the answer of the complaint, and an affirmation of counsel. Defendants Donald McCord and Mladen Solar also state in opposition to the complaint stating it took place after the deadline set for this type of case.

Case Discussion and Verdict

The defendants wish to accelerate the judgment dismissing the case as the plaintiff lacked the power to sue at the time the complaint was commenced.

As for the argument that the complaint is untimely, in this case the plaintiff had two years from the time of death to file the wrongful death suit. Her complaint was submitted two weeks before the deadline.

In this case the Court finds in favor of the defendants and the case is dismissed. However, a Bronx Personal Injury Lawyer said the dismissal of the three causes of action is without prejudice to Roseann Caracciolo and gives her the right to recommence the action as the administrator of the estate.

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The plaintiffs in the case are Tray Wrap, Inc. The defendants in the case are Pacific Tomato Growers LTD and Florida Fruit and Vegetable Association.

Case History

In this case, the defendant Florida Fruit and Vegetable Association is seeking an order for a summary judgment over the plaintiff in the instant action suit. The defendant declares that a summary judgment is warranted for a number of different reasons.

Plaintiff Argument

A New York Injury Lawyer said the first cause of action issued by the plaintiff states that the defendant had no factual or legal basis to file a complaint against them with the USDA. The plaintiff alleges that the defendant knew that the allegations made in the complaint were false and they willfully intended to defraud the plaintiff. As a result of this abuse of the process, the plaintiff is seeking punitive damages of $500,000. The second cause of action reiterates the first cause of action.

In support of their case, the plaintiff provides a transcript of Spinale’s deposition, which he states that on June 22, 2001, the defendant FFVA on behalf of Pacific brought a reparation action against the plaintiff. The action was preceded by an informal complaint letter that was dated March 27, 2000. Spinale declares that the instant action was started despite the absence of probable cause because neither of the defendants conducted an investigation to prove that the plaintiff had defrauded them.

The plaintiff also submits an affidavit from Mazie Faraci who reiterates the majority of what was said by Spinale. The plaintiff also submits a portion of the transcript from a senior marketing analyst from the USDA that states that it is his opinion that the USDA inspectors altered reports at the USDA’s discretion and affected the integrity of the USDA.

Defendant Argument

The defendant in the case is issuing a counterclaim against the plaintiff. A Brooklyn Personal Injury Lawyer said that in the counterclaim, FFVA alleges that in April of 2002, a complaint was filed against the plaintiff for reimbursement of unauthorized adjustments. In this case the plaintiff and Pacific reached an agreement. The plaintiff then commenced the instant action against FFVA; even though the plaintiff had knowledge that FFVA was not a part of the actions between Pacific and the plaintiff.

The defendant issues a copy of the decision that was issued by SDNY in a case called “Tray-Wrap, Inc versus Meyer Tomatoes. This decision shows the amount of cost and fees that were to be awarded to the defendant in that action. This action involves facts that are similar to this case.

Case Results

The Court has partially granted the summary motion in favor of the defendant. However, the portion of the defendants claim to seek summary judgment in the case of malicious prosecution and abuse of the process is denied. However, the defendant has demonstrated an absence of misrepresentation or falsity in the case and this portion of the summary judgment is granted.

The Court orders that the complaint and all cross claims in the case are dismissed in their entirety, without prejudice. A Bronx Personal Injury Lawyer said it is also ordered that the defendant serve a copy of this order to all of the parties within 30 days of the notice of entry.

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The respondents in the case are Sandra Greenberg and Myron Greenberg. The respondents are represented by Manuel J. Steinberg, Alfred Joffe, from New York City. The appellant in the case is William De Hart, who is an infant over the age of fourteen years and is represented by Raymond M. De Hart as the guardian ad lien. The appellant is being represented by Manley H. Thaler from Ithaca.

Court Memorandum

In a Kings County Supreme Court action for the recovery of medical expenses and personal injuries as well as loss of services, this is an appeal case from the order that denies a motion for the complaint to be dismissed on the basis of res judicata, from the Rules of Civil Practice, rule number 107, division 4.

The court orders the reversal of the order and the motion is granted. The costs and disbursements equal $10 and the cost of granting the motion is $10.

Prior Case

A New York Injury Lawyer said that before the current action commenced, the respondents had asserted causes of action against the appellant in a case that was commenced in the Kings County court. The causes of action were consolidated along with actions for recovering damages for the injury of a property started by the appellant against the respondent Myron Greenburg, in the Cortland County court. When the case appeared for trial in the Cortland County court, the respondents failed to appear. The case was then marked as ready by the appellant’s lawyers and placed on the calendar as ready for disposition. During the following term, the action reached trial and the respondents did not appear, even though the attorney for the respondents had been given the date for the trial.

The claim in the case made by the appellant for the damage to his property was settled and the only issue left for trial was the personal injury case of the respondent. A Bronx Personal Injury Lawyer said the appellant went through the action of trial in the case and gave his testimony with witnesses present. After the evidence was given the trial court granted the motion to dismiss the complaint in favor of the appellant. This is the ruling that was entered by the courts.

Judgment

In the opinion of this court, the initial judgment is a complete bar to the re-litigation of the same cause of action. It is thereby determined that the dismissal of a previous complaint that has the same cause of action is not the result of a judgment based on merits. The complaint was dismissed through a motion by the defendants on the grounds that the plaintiffs did not appear and therefore offered no evidence. Additionally, the dismissal was based on evidence that was provided by the appellant, which in this case the judgment was properly stated to be within its merits. This is according to the Civil Practice Act section 482, and 494-a.

Three of the five judges in the case concur with this finding. The other two judges dissent with the vote to affirm that includes the following memorandum:

A Brooklyn Personal Injury Lawyer said the judgment that dismissed the prior action is not on the merits, despite being recited to that effect. We feel that the respondents should not be deprived of their initial cause of action under the circumstances of the case and the execution of a full bill of costs would be a sufficient penalty for their non appearance at the trial.

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A mother filed a medical malpractice action against her attending physician, her infant’s pediatrician, and the hospital. It was urged that the medical malpractice included the accused parties' failure to properly monitor the mother's condition during labor when her blood loss was allegedly abnormal. While the bill of particulars in the prior action stated that the accused parties failed to treat a maternal complication known as placenta previa. At trial, the complainant and her medical expert claims that the mother's continuous moderate vaginal bleeding from the time of her admission until delivery was symptomatic of a condition known as placenta disorder where the placenta prematurely separates from the uterine wall causing depletion in oxygen transfer from the mother to the fetus. The oxygen depletion caused fetal distress and the mother contends a single transitory deceleration in the fetal heart rate from 134 to 92 beats per minute during labor and approximately an hour after her admission to the hospital. It was alleged that as a consequence of the attending physician’s failure to monitor the maternal and fetal condition, the infant sustained permanent brain injury.

After the first action was set down for the mother voluntarily discontinued as against the pediatrician and the hospital. A New York Injury Lawyer said the trial proceeded solely against the attending physician on the theory that the alleged condition of the mother during labor warranted the institution of certain procedures such as rupture of the membranes and/or the performance of a cesarean section, which would have prevented brain injury to the infant.

Three days after the jury rendered its verdict in favor of the attending physician, an action was instituted on behalf of the infant against the hospital and a resident in obstetrics and gynecology who assisted in the labor and delivery rooms on the day of the infant’s birth. A Bronx Personal Injury Lawyer said the second suit was premised on a theory of medical malpractice substantially similar to that alleged in the first, namely, the improper monitoring of the mother and fetus during labor, resulting in the failure to diagnose and treat abnormal vaginal bleeding which occasioned the infant’s birth injuries.

The hospital moved to amend the trial transcript so as to indicate that the complainants’ discontinuance against them was with prejudice. By order, a Trial Term granted the motion. However, the court reversed and denied the same upon the ground that the trial court and the attorneys for the parties in the first action had not complied with the statutory protections afforded to infants whose rights to proceed against a party are to be terminated. The Court of Appeals affirmed.

In March of 1981, the hospital and the resident obstetrics and gynecology, having properly raised the defenses of issues that were already settled and collateral obstruction in their responsive pleading brought on the instant motion for summary judgment to dismiss the complainants’ action on those grounds. In opposition, the infant and her mother asserted that the necessary prerequisite for application of those defenses had not been met in that, while the birth injuries to the infant were common to the actions, the factual bases for liability were wholly distinct from one another. In denying the motion, Special Term reasoned that holding that infant’s discontinuance of the said action against the hospital was without prejudice and the infant was in effect given the right to institute and continue his present lawsuit against the hospital and the resident gynecologist, notwithstanding the jury verdict against the infant in the prior action.

Based upon the record before the court, it can fairly be concluded that neither the quality of woman’s representation in the prior Supreme Court action, nor the initiative to proceed therein, were such as to call into question the application of issue disqualification. A Brooklyn Personal Injury Lawyer said clearly then, the woman has failed to sustain he burden of demonstrating that issue preclusion should not be applied because she did not have a full and fair opportunity to contest the determination now said to be controlling. Accordingly, we turn to the question of whether the accused parties have sustained their burden of establishing an identity of issue necessarily decided in the prior action.

In sum, then, it would seem that when disqualification is sought to be invoked with respect to questions arising in a suit based upon a different cause of action, inquiry must center upon those issues and facts directly raised and actually litigated in the prior action. For disqualification purposes, an issue is actually litigated when properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined. However, it has been observed that it may be said that the doctrine of issue preclusion no longer applies only to matters actually litigated. It may also apply to matters that were necessarily decided in the prior action although not actually litigated.

Based upon a comparison of the pleadings and their intensifications in the prior and instant actions, which are essentially identical, and other materials of record in the prior action, it is the Court’s opinion that the essential prerequisites of identity of issue have been met.

In essence, the infant seeks to retry his case based upon the exact facts upon which he previously relied. The only difference is the cast of accused parties. He obscures the similarity by urging that the inconsistency between the testimonies of his mother’s attending physician at her examination before trial and her later testimony at the first trial regarding the exact time when she arrived at the hospital and began monitoring the mother, is central to the issue of medical malpractice on the part of each accused party named. However, if, as the infant currently alleges and his counsel most strenuously urged upon trial of the prior action that the placental separation existed prior to the attending physician’s arrival, then as the accused parties’ expert at the first trial testified, and as accepted medical authorities agree, such pathological process had to continue because a placenta disorder, once detached, does not reattach itself. Moreover, had its existence been established at trial, a presumption of continuity would have been raised. Indeed, as the infant by his brief concedes, if in fact it was necessarily determined in the prior action that there was no abnormal maternal bleeding and the fetus was not in distress prior to delivery, the issue of disqualification would apply.

His assertion that the failure to properly monitor the mother, which occurred sometime between her admission to the hospital and the deceleration in the fetal heart rate at approximately 8:30 P.M., and the fact that her attending physician changed her testimony estimating her arrival at the hospital rather than her being present at the time of the admission and first examination of the expectant mother, creates a new issue as to the responsibility for the alleged medical malpractice, is in error. To succeed on the theory of liability against any of the accused party, the complainant would be required to demonstrate that the asserted placenta disorder existed, and that the single episode of slow heart rate heard by the attending physician evidenced such condition. Yet, the existence of the condition was fully litigated in the prior action. In finding that the attending physician was not guilty of medical malpractice, the jury necessarily determined that the alleged placenta disorder was not present, and therefore that any invasive procedures such as a cesarean section were not indicated under the circumstances. To conclude otherwise, would be to afford the complainant the opportunity to unfairly engage in repetitive litigation.

Accordingly, the order of Special Term should be reversed and the accused parties’ motion for summary judgment dismissing the complaint is granted.

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The issue is filed on the supreme court for an appeal in the matter whether the infant who was born with birth injuries, has a reason of action against the manufacturers of certain drug which was allegedly ingested by infant’s grandmother while pregnant with infant's mother and allegedly caused certain physical abnormalities in the mother which caused the physical disabilities with the infant as well. The court answered the issue in the negative and dismissed all reasons of action seeking to recover damages for the infant's birth injuries.

The complaint asserts that the infant mother was exposed to the said certain drug when inside the uterus with the direction of a physician. A New York Injur Lawyer said it is further alleged that due to the exposure the infant mother developed some anatomical abnormalities and deformities in her reproductive system which subsequently prevented her from carrying a baby to full term. The infant mother consequently gave birth to the complainant infant. It is further alleged that infant was born prematurely due to her mother’s abnormalities developed as a result of exposure to certain drug and that premature birth caused the infant to develop severe disabilities which will affect her for her entire life.

The parents of the infant initiated the action individually and on behalf of the infant against various manufacturers of the alleged drug. The action asserts negligence, strict product liability, breach of warranty and fraud. Damages are sought for physical and emotional injuries sustained by the mother and physical damages, pain and suffering sustained by the infant. The father asserts a derivative reason of action based upon the inability to have a healthy natural child. The complaint also claimed that if it cannot be proven that the accused manufactured the drug ingested by the infant's grandmother, recovery would be sought on the basis of alternative enterprise and/or market share liability.

After the issue was joined, the accused parties moved to request for decision without trial and claims that since the state does not recognize preconception tort liability, all claims based upon the infant's birth injuries must be dismissed and no recovery could be awarded to the parents for damages based upon emotional distress resulting from the birth of an impaired child. They also request that the failure to identify the manufacturer of the drug ingested by infant's grandmother required dismissal of all claims and that the complainant’s claims were time barred since the revival law under which they were brought is unauthorized.

A Bronx Personal Injury Lawyer said the mother contends that based upon the foregoing discussion, her strict products liability reason of action should be reinstated. Relying upon previous court’s case decisions, the accused parties contend that the state does not recognize preconception strict products liability. It was held in previous cases that a child who was born with chromosomal damage, allegedly due to her mother's exposure to a toxic substance during the course of employment and prior to conception, had no reason of action. Consequently, the court concluded that although there may be no need for limitation on liability in most strict products liability cases, such a need exists in exposure and ingestion cases, relying largely upon the policy considerations supporting the longstanding Law of Limitations accrual rule which used the date of the injury and not the date of discovery.

The legislature also displayed considerable flexibility in allowing remedy to the allege drug victims. In addition, the Legislature enacted a revival decree which opened a one-year window for actions of injuries caused by allege drug and four other toxic substances that were previously barred under the old date-of-injury rule. A Brooklyn Personal Injury Lawyer said since the infant and other similarly situated infants already had the benefit of the tolling provisions, the relevance to the case of the Legislature's enactment of the toxic tort law including the revival provision lies in the clear manifestation of deep concern for those injured by toxic substances in general.

Undergoing a prenatal checkup is crucial both in the health of the mother and the baby. Any problem with regard to the well-being of both the mother and the baby can be addressed early on. Doctors and medicines are there to make sure that the baby will come out safe and healthy, but if the opposite happens, skilled lawyers are always ready to serve you in the offices of Stephen Bilkis and Associates. In addition, our team of NYC Injury Attorneys can offer excellent legal defense.

When plaintiff-mother was pregnant, with her fourth pregnancy, she was referred to the State University of New York Health Science Center (hereinafter University Hospital), Perinatal Center of the Department of Obstetrics and Gynecology, as a result of three prior habitual abortions and a suspected bicornuate uterus based upon an ultrasound performed at eight weeks. The expected due date for this pregnancy, based upon plaintiff-mother’s last menstrual cycle, was 18 January 1993. Mary DuPont was 21 years old at the time, weighed 117 pounds, and was 5 feet, 1 inch tall. On 23 July 1992, she began to treat with a doctor, professor and director of obstetrics at the Perinatal Center. The plaintiff-child was born weighing 2,485 grams, below the 10th percentile in weight for her gestational age on 14 January 1993.

Hence, an action for medical malpractice was brought by the plaintiff-child’s parents, on her behalf. It was alleged that the medical malpractice of the defendant in treating plaintiff-mother, during the course of her pregnancy from 23 July 1992 until plaintiff-child’s delivery on 14 January 1993 by caesarean section where it was noted that a full placental abruption had occurred, had resulted in her suffering intrapartum asphyxia and later being diagnosed with cerebral palsy, mental retardation and a seizure disorder.

A New York Injury Lawyer said four doctors or medical/professional experts testified in this case, and each had a slightly different assessment of the risks associated with plaintiff-mother’s pregnancy, a different understanding of the standard of care and evaluation of the facts.

However, it is fairly undisputed among the experts that the bradycardia and hypoxia in the infant claimant, to the extent presented at birth, resulted in her spastic quadriplegic cerebral palsy, a brain injury (birth injury or birth injury accident).

Was there a medical malpractice?

In a medical malpractice case, it is the claimant's burden to show that the medical professionals involved either did not possess the requisite knowledge and skill ordinarily possessed by practitioners in the field, or neglected to use reasonable care in the application of the requisite knowledge and skill, or failed to exercise their best judgment. A Westchester County Personal Injury Lawyer said that for liability to be imposed there must be a showing that the medical provider's treatment decision was "something less than a professional medical determination." A physician's duty is to provide the level of care acceptable in the professional community, he is not required to "achieve success in every case and cannot be held liable for mere errors of professional judgment" where a choice is made between medically acceptable alternatives or diagnoses.

The Court has struggled with the issue of liability, as it is clear that the practice of medicine involves ongoing decision making which factors in the patient's historical circumstances, test results, changes in condition, and the experience of the doctor involved. It is not an exact science, and there is, in any circumstance, a range of acceptable practice.

It must be noted that plaintiff-mother came under the doctor’s (also referred herein as “attending doctor”) care which he termed a very high risk pregnancy because of plaintiff-mother’s prior pregnancy and miscarriage history and her physical anomaly of a bicornuate uterus. Unfortunately for plaintiff-mother, her complications furthered as the pregnancy developed, including two unexplained elevated MSAFP test results, an increasing lag in fetal growth, and ultimately a diagnosis of IUGR on December 21. The attending doctor was an experienced, knowledgeable doctor having cared for many pregnancies complicated by a bicornuate uterus, and there is no established issue with the medical care he provided to plaintiff-mother until she reached 38 weeks gestation. At that point, the issue turns critically to whether the standard of care required the delivery of plaintiff-mother’s fetus at that time, or in any event, before 14 January 1993. Yet, the Court has focused on those critical days before that date, as the doctor had only the facts known at that time and was left, without the ability of prescience, to evaluate the condition of plaintiff-mother and plaintiff-child with his expertise within the accepted level of care.

When focusing on those last days, certain factors are clear and undisputed. This woman had a bicornuate uterus. With any pregnancy with a bicornuate uterus, even one not attached to the septum, there is an increased risk of a placental abruption. Plaintiff-mother had unexplained, significantly elevated MSAFP test results twice. An unexplained elevated MSAFP test result increases the risk for a placental abruption. Placental abruption places both the fetus and the mother at risk of death. Yet it is clear from his deposition testimony that it never occurred to the attending doctor that plaintiff-mother’s bicornuate uterus placed her and her pregnancy at risk of placental abruption and the risk of placental abruption played no involvement in the attending doctor’s decision making regarding the care of plaintiff-mother. Yet, placental abruption and the risk of fetal death are factors the attending doctor acknowledged and the standard of care required be considered.

The fetus was diagnosed with IUGR, having a significant growth lag measuring below the 10th percentile for her gestational age. A diagnosis of IUGR increases the risk of fetal demise. The attending doctor attributed the IUGR to the uterine anomaly which, by all accounts, is then usually the result of placental insufficiency. The doctor never ruled out placental insufficiency. Although he discounted placental insufficiency as the cause of the IUGR, he still attributed the cause to a uterine blood flow issue, which, as another doctor testified, would equate to placental insufficiency.

The doctor’s own plan of care, as of December 21, reflected a consideration to induce labor at 38 weeks, which was established as a term pregnancy. Plaintiff-mother’s condition, as of December 21, showed, according to the doctor, "some indicators of some concern" which led him to the plan for twice weekly nonstress tests and the thought process to induce labor. Those indicators of concern were the diagnosis of IUGR, the need to watch for hypoxic effects on the fetus, and concern about placental insufficiency. According to a Bronx Personal Injury Lawyer, as of December 21, the doctor had two nonstress tests, the four sonogram reports, and three Doppler studies. When the doctor changed his plan of care for plaintiff-mother on December 28, the only additional information he had, at that time, were the reactive nonstress tests from December 24 and December 28. In explaining his change of plan, the doctor expressed his reliance on the reactive nonstress tests and good flow studies to support his position that the risks associated with this pregnancy were the same or less than on December 21. It is clear from the doctor’s testimony that he did not factor in the increased risk for a placental abruption because of the bicornuate uterus or the elevated MSAFP test results. Nor was there any evidence of fetal growth during this period.

The doctor, who clearly beholds himself an exceptional practitioner, stated twice, unequivocally, that with documented fetal lung maturity and a diagnosis of IUGR, the standard of care requires delivery at 38 weeks. He then held up the risks of testing for lung maturity as a shield to any negligent decision of when to deliver plaintiff-mother’s baby. Yet, looking behind the shield, it was undisputed that the risks of amniocentesis to test for lung maturity were less than one percent, and the test was described, by all who testified, as a very "low risk procedure" at that point in the pregnancy. In fact, the risks for the amniocentesis were less than the risk for a placental abruption in a woman with a bicornuate uterus with a pregnancy not attached to the septum, even before including the increased risk for a placental abruption related to the unexplained MSAFP test results. Another doctor testified that there is no contraindication to delivery at 38 weeks given the circumstances presented here. Even defendant's expert testified that at 39 weeks fetal lung maturity could be presumed, and no testing was even required. All the medical providers agreed that if the testing had been done at 38 or 39 weeks, it would have more likely than not shown fetal lung maturity.

Clearly, the cervix was not ripe for delivery but, by all accounts, ripening agents and methods were available, and the risks of inducing delivery, which undoubtedly exist, would have evolved in the hospital, where emergency care, as evidenced by the exceptional treatment provided to plaintiff-mother on the morning of January 14, could have been provided. Moreover, the Court was moved by the attending doctor’s testimony, that within a couple days of plaintiff-mother’s next scheduled visit (January 14) he would "almost certainly be inducing her within days," despite those same risks of induction he touted as precluding an earlier induction. The difference in waiting that additional week, given his intent to thereafter induce, was not compelling for the Court in light of the other circumstances with this pregnancy. Moreover, the standard of care, to which the attending doctor testified, required delivery of an IUGR fetus at 38 weeks with documented lung maturity. He did not condition his testimony upon a ripe cervix. It is because of these factors that the Court finds the attending doctor’s decision to continue the pregnancy of plaintiff-mother beyond 38 weeks, and in any event beyond 39 weeks, was outside of the standard of care for a diagnosed IUGR fetus as he described. His failure to factor in the increased risks of a placental abruption for plaintiff-mother’s pregnancy despite as he acknowledged that the standard of care required this consideration, reflects a failure to exercise reasonable care in the application of his expertise, and not just a mere error in judgment. It appears that the attending doctor failed to heed all of the risks apparent for this pregnancy. He readily acknowledged that most maternal fetal medicine doctors dealing with an IUGR fetus, choose to deliver their patients as soon as pulmonary maturity is assured by testing, and it would have been within the standard of care to deliver this pregnancy even as early as December 21, 1992. He indicated, however, that he didn't feel that delivery would have been best. Unfortunately, his judgment was based upon his failure to heed all of the risks known for plaintiff-mother’s complicated pregnancy; and more importantly, for purposes of this case, below what the standard of care required based upon all of the information available to him.

Accordingly, the Court finds the defendant, based upon the attending doctor’s breach of the standard of care, 100% liable for the injury/ injuries suffered by the plaintiff-child.

For the amount of damages, several factors have been considered by the court including loss of earning capacity and economic analysis of costs for medical care and other needs. The amount of damages determined exceeds $250,000; therefore, a structured judgment is required under the rules. The Court encourages the parties to agree upon an attorney fee calculation and the discount rate to be applied to formulate a structured settlement of their own but in the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing, conforming to the requirements of the rules. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court with regard to the collateral source issues and the structured judgment.

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The infant plaintiffs, by their natural guardian, and the guardian individually, commenced an action against the defendants Corporation and private individual by the filing of summons and complaint in the office of the County Clerk of Westchester County on 11 October 1995. The complaint alleges, among other things, that the Corporation and the private individual were responsible for the operation and maintenance of certain apartments located in Westchester County, including the apartment in which the infant plaintiffs resided. The complaint alleges that the infant plaintiffs were each "caused to ingest, consume and/or be exposed to lead paint and/or dust which was upon and/or caused, allowed and permitted to chip, peel, fall and/or permeate the premises from the interior walls and portions of said apartment"; that as a result of the infants' ingestion of these noxious substances, they were severely injured (head injury, deafness, paralysis and the like) and suffered "great physical pain"; that each of the infants "incurred and in the future would necessarily incur further hospital and/or medical expenses in an effort to be cured"; and that the natural guardian had, on account of the injuries to the two infants, "been required to expend various sums of money for extraordinary medical care, consultation, advice, therapy, education, management and treatment of the infants."

A New York Injury Lawyer said that by virtue of a "notice of lien" dated 2 November 1998, the guardian, as well as the attorneys representing him and the infant plaintiffs, the defendants, and the defendants' attorneys, were notified that the Commissioner of the Westchester County Department of Social Services (hereinafter the DSS) was asserting a lien in the sum of $132,204.73 to be satisfied out of the proceeds of the settlement noted above. The defendants assert that this was their first notice of any such lien.
The issue here is whether or not the representatives of an infant plaintiff, on whose behalf a settlement of a personal injury action has been reached, may completely defeat enforcement of the Medicaid lien by the simple expedient of declaring that the settlement related solely to the infant's claim for pain and suffering?

There can be no dispute as to the validity of the general principle that a Medicaid lien may be satisfied from all of the proceeds of the settlement of a personal injury action brought by the recipient of Medicaid benefits, and that the proceeds available for the satisfaction of such a lien are not limited to the portion of such settlement specifically allocated to past medical expenses. Whether this general rule applies in the case of a Medicaid recipient who is under the age of 21 must remain an open question on this appeal mainly because such argument it has been abandoned which was based on the contention that this general rule does apply, even in the case of an infant plaintiff. Now, on appeal, said a Brooklyn Personal Injury Lawyer, the DSS seems to accept without dispute that, when a Medicaid recipient is under the age of 21, only that portion of a settlement attributable to past medical expenses is properly subject to a Medicaid lien.

Here, the appellant DSS has chosen to narrow the scope of its argument on a right to impose a lien only on that portion of the settlement as relates to medical expenses.

The court agrees with DSS. A Bronx Personal Injury Lawyer said the papers submitted by the defendants in the personal injury action establish very clearly that their intent, in agreeing to pay $1.3 million, was to obtain, in return, a release from all possible future claims relating to the injuries incurred by the two infant plaintiffs, including any claim based on the past medical expenses incurred by them. The assertion made by the plaintiffs' counsel that the only causes of action which have been compromised are those for pain and suffering leaves it unclear as to whether the infant plaintiffs themselves, or the private individual as their guardian, or the DSS as subrogee, may continue to pursue a claim based on past medical expenses.

The cases decided by the court holds that the determination as to the extent to which a personal injury settlement relates to the claim for past medical expenses "is to be made by the court and is not foreclosed by the form of the settlement documents or the language used by the attorneys in the settlement stipulation, if that form and language do not truly reflect the consideration of the settlement, or are chosen merely as a means to defeat DSS' recovery". While there may have been cases where the record on appeal conclusively established the proposition that, for some legitimate reason, a settlement of a personal injury action included no compromise of the claim based on past medical expenses, we do not believe that such a proposition may be considered as having been conclusively established by mere ipse dixit of the plaintiffs' attorney. For these reasons, the court agrees with the central argument, that is, that a Medicaid lien may not be effectively nullified by the mere expedient of the plaintiffs' attorney announcing that the settlement relates to pain and suffering only.

On the larger question of whether the Medicaid lien under review is in fact enforceable against all of the proceeds of the settlement, irrespective of how they are allocated, again, it must be noted that the court was not called upon to decide on that matter. It is always better for an appeals court, as it is for a trial court, to pass upon only those issues which the litigants have had a fair opportunity to address.

However, the ruling is not to preclude the DSS from reasserting its original argument (abandoned on this appeal) during the course of the further proceedings in the Supreme Court which are, in any event, necessary in light of our determination. The DSS should be granted leave to renew its opposition to the plaintiffs' motion to vacate the lien, and to advance once again its original argument, this time with the support of the recent case laws which neither party had an opportunity to brief on during the appeal. The plaintiffs should have a fair opportunity to identify any factors which might render those cases distinguishable from the one at hand before the effect of those cases on the present litigation is passed upon, either by the Supreme Court or by this Court.

Consequently, the motion to vacate the DSS lien is granted solely to the extent of directing a hearing to determine the portion of the settlement related to the claims for past pain and suffering. When a settlement of a personal injury action has been reached, it may not completely defeat enforcement of the Medicaid lien by the simple expedient of declaring that the settlement related solely to the infant's claim for pain and suffering. The court rules that further proceedings are necessary in any event, and that the appellant should be granted leave to renew its opposition to the motion to vacate the Medicaid lien in light of the recent caselaw which neither party had an opportunity to brief on during the appeal.

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The defendants represented the plaintiff in a personal injury action (hereinafter the personal injury action) arising from injuries (broken bone or back injury and the like) allegedly sustained by the plaintiff on 21 September 2001. In August 2002 the plaintiff obtained a default judgment against one of the defendants in the personal injury action (hereinafter the personal injury defendant). In August 2004, following an inquest on the issue of damages, the Supreme Court entered a judgment in favor of the plaintiff and against the personal injury defendant in the principal sum of $1,400,000 (hereinafter the money judgment).

In May 2005 the plaintiff retained another law firm, to collect on the money judgment. The defendants in this case subsequently signed a “consent to change attorney” form dated 21 March 2006.

A New York Injury Lawyer said that in November 2006 the personal injury defendant moved, inter alia, to vacate the money judgment entered against him on the ground that he had not been properly served with process in the personal injury action. In an order dated 6 June 2007, the Supreme Court, among other things, granted the motion, vacated the money judgment, and dismissed the personal injury action insofar as asserted against the personal injury defendant, with prejudice.

On 9 January 2009, the plaintiff commenced this action against the herein defendants to recover damages for legal malpractice, alleging that the defendants had been negligent in failing to properly effectuate the service of process upon the personal injury defendant prior to the expiration of the statute of limitations in the personal injury action. A Brooklyn Personal Injury Lawyer the defendants moved to dismiss the complaint, inter alia, pursuant to Civil Practice Law & Rules (CPLR) on the ground that it was time-barred by the applicable three-year statute of limitations, and for failure to state a cause of action. The Supreme Court granted those branches of the motion, and the herein court is obliged to modify.

Was there a legal malpractice to warrant the award of damages?

In dismissing a cause of action on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. A Bronx Personal Injury Lawyer said the herein defendants satisfied this initial burden by demonstrating that the alleged legal malpractice occurred more than three years before the instant action was commenced in January 2009. "The burden thus shifted to the plaintiff to aver evidentiary facts establishing that his cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies". Contrary to the Supreme Court's determination, the evidentiary facts averred by the plaintiff were sufficient to raise an issue of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation because the defendants continued to perform services for the plaintiff in the personal injury action until approximately March 2006
Thus, it is in the court’s conclusion that the Supreme Court improperly granted the defendant’s motion to dismiss the complaint as time-barred.

However, the Supreme Court properly granted the defendant’s motion to dismiss the complaint for failure to state a cause of action. "A motion to dismiss will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, 'the complaint states in some recognizable form any cause of action known to our law' ". "Affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims".

In an action to recover damages for legal malpractice, "a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. To establish causation, "a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages if not for the lawyer's negligence".

The complaint failed to allege any facts tending to show that if not for the defendant’s alleged negligence in failing to serve process upon the personal injury defendant in the personal injury action, the plaintiff would have prevailed in that action insofar as asserted against the personal injury defendant. The plaintiff's remaining contentions are unjustified.

In view of the foregoing, the court rules that there was no legal malpractice to warrant the award of damages.

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Asbestos product liability related, personal injury and wrongful death actions have been filed. The issue is whether the court should grant approval to the settlement of a wrongful death claim even if there has been no appointment of a personal representative.

Each of the three individuals, who are alleged to have sustained personal injuries as the result of exposure to asbestos products manufactured and/or distributed by the defendants, are now deceased. The complaint contains causes of action seeking money damages as the result of pain and suffering allegedly incurred by each one of them prior to their deaths. A cause of action for personal injury is not lost because of the death of the injured party, and may be commenced and/or maintained by the personal representative. In the event the injury causes death, damages are limited to those accruing before death, except for reasonable funeral expenses, and become assets of the estate.

Each of the named plaintiffs is a surviving spouse, and has made an individual claim for loss of consortium, which, of course, would be dependent upon the respective personal injury claims. In addition, according to a Brooklyn Personal Injury Lawyer, each plaintiff is designated, as the "Personal Representative" of the respective estates, which representation is repeated in the body of the complaint. In their respective, purported capacities as personal representatives, plaintiffs have asserted not only causes of action for personal injuries incurred by their spouses prior to death, but also causes of action for wrongful death. A "personal representative" is defined as "a person who has received letters to administer the estate of a decedent"
Unlike a claim for personal injuries, for which any recovery, by settlement or verdict, is payable and belongs to the estate, a wrongful death action is brought on behalf of the decedent's distributees, who have suffered pecuniary damages as the result of death wrongfully caused by a defendant. A wrongful death cause of action is created solely by statute. The provision, which authorizes maintaining such an action, reads as follows: "The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death." This section further provides that the wrongful death action must be commenced within two years after the decedent's death, and in the event that an executor, appointed under a will, refuses to bring such a claim, "the distributees are entitled to have an administrator appointed to prosecute the action for their benefit."

Wrongful death claims are one of the few types of civil lawsuits, in the State of New York, that require court approval for resolution by settlement.

Although Supreme Court may refer a case to the Surrogate's Court for the purpose of administering the proceeds of an approved wrongful death settlement, the authority and responsibility for approval is conferred solely upon Supreme Court, to "resolve the fairness and reasonableness of the settlement, including the amount to be paid, the manner in which the payment obligation is amortized and the parties' arrangements for payment of costs and attorneys' fees".

In asbestos related personal injury and wrongful death actions, it is not uncommon for the claims to be resolved by settlement on the eve of trial. This, in most instances, does not allow sufficient time for plaintiff's counsel to make formal application for approval of the wrongful death claim. Accordingly, the CMO for the Seventh Judicial District attempts to accommodate this situation by making provision for a preliminary approval, based upon a statement from plaintiff's counsel "certifying that the personal representative has consented to the compromise," setting forth the amounts contributed by the respective defendants and stating the reasons for compromise of the claims. A Bronx Personal Injury Lawyer said if preliminary approval is granted by the court, the case is marked "Off" of the trial calendar, and a plaintiff is then permitted to submit formal application for approval of the wrongful death action within a period of 60 days, thereafter.
Days before the scheduled trial date, the court received a letter from plaintiffs' counsel, dated 18 May 2004, whereby preliminary approval was sought for settlements of wrongful death claims. The letter indicated that one of the claimants(1st claimant) had died at the age of 81 from thyroid cancer, which, according to plaintiff's expert, was unrelated to asbestos exposure, and further stated that there was "no viable wrongful death claim." The court was also provided with a copy of the death certificate, and letters testamentary, which revealed that the claimant had died prior to the commencement of the action on 14 July 2001, and that no personal representative had been appointed until 1 March 2004. The letter further stated that the other claimant(2nd claimant), who had an extensive smoking history, died of smoking related lung cancer, and that plaintiff's expert was unable to find any "definitive" asbestos related disease. Therefore, according to counsel, causation would have been "almost impossible" to establish at trial. The letter also disclosed, for the first time, that the other claimant had never been granted letters testamentary, and that there were two children, from a prior marriage, who, in addition to herself, would be distributees. Efforts had been made by the estate attorney to secure consents to the appointment of the other claimant’s wife as a personal representative but the children had not responded to the telephone messages. Consequently, the attorney intended to attempt contact with the children one more time and if unsuccessful, to proceed by way of citation.

A New York Injury Lawyer said that on 19 May 2004, a letter was sent to plaintiffs' counsel, with a copy to defendants' counsel, which stated that the court was unable to grant preapproval to the proposed settlements in the matter of the 1st claimant, and suggested that, counsel consider a motion to discontinue the wrongful death cause of action. It should be noted that the 2nd claimant’s wife has been substituted as a plaintiff by order, dated 2 April 2004, and there had been no previous motion to dismiss based upon lack of capacity to bring the lawsuit. In addition, the amount of settlement was relatively small, and unlike the 2nd claimant’s case, counsel was unequivocal in stating that plaintiff could not establish causation. Absent objection on behalf of a defendant, the entire settlement could then be allocated to the personal injury and loss of consortium claims, and would not require approval of the court. A motion for discontinuance of the wrongful death claim in the 1st claimant’s matter was made returnable on May 21, 2004, which was also the scheduled trial date. However, plaintiff's counsel elected not to proceed by order to show cause, but rather, upon one day's notice of motion and without stating the basis for the application.

In the present case, the defendants, who have entered into settlement agreements, have not made motions to dismiss either the personal injury or wrongful death causes of action. Although it is not apparent whether any of these defendants had previously been aware of the lack of capacity of each plaintiff to bring these actions as a "personal representative," a motion to dismiss upon this ground, should have been made prior to the service of the answer, or alternatively, asserted therein. In regard to the wrongful death claims, the appointment of a personal representative is an essential element, and summary judgment, which does not contain any similar time constraints, may be an appropriate remedy. Arguably, one of the claimant’s wife, having been appointed a personal representative following commencement of the action and substituted as plaintiff, may possess authority to make a motion to dismiss the wrongful death claim. Again, it should be emphasized that the wife’s capacity to commence the lawsuit has not been challenged by a motion for dismissal of the complaint.

On the issue whether the court should grant approval of a settlement in a wrongful death action, which lacked a duly qualified personal representative both at the time of commencement and at the time of application for such approval, the plaintiff not only lacked capacity to commence the personal injury and wrongful death causes of action, but in regard to the latter, the lack of a personal representative renders the claim further defective because such appointment is an essential element and condition precedent to the claim itself. Thus, by making the application for approval, counsel, in effect, is asking that the court's imprimatur be placed upon the settlement of a defective claim. In any event, there has been no substitution of a personal representative, and the court lacks jurisdiction to rule upon any motion. Furthermore, from the perspective of plaintiffs' counsel, there is no legal entity who could be represented as a client.
Conversely, defendants, who receive releases in exchange for payment of monies, would not be protected from additional, future claims. Based upon all these considerations, there should be a denial of the application for settlement of the wrongful death action, as otherwise authorized by the laws.

As a result, the applications for approval of settlements of the wrongful death claims in the both cases are denied, and the motion to discontinue the wrongful death claim in the 1st claimant’s case is denied, without prejudice.

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On June 9, 1986 a woman was driving a small and compact sports utility vehicle on the highway. She slammed on her brakes to avoid a deer that had walked directly on the path of her small SUV. After she slammed on the brakes, her car rolled over and she suffered severe personal injury. She and her husband sued the car manufacturer who produced and marketed the compact sports utility vehicle. Her complaint asserted negligence, strict products liability and breach of implied warranty of merchantability.

The woman introduced evidence to show that a SUV rollover accident is not uncommon because its wheel base and track width was narrow. They claim that the small SUV was unstable as it was manufactured by the car company. They also introduced evidence that the car company marketed the small compact SUV as suitable and fashionable for suburban and city driving which was why they bought it.

After the presentation of evidence the trial judge instructed jury that the strict products liability claim and the breach of implied warranty claim should be treated separately. The trial court also instructed the jury that if they found the car as a defective product, then the car manufacturer should be found liable for injury which results from the use of the defective product for the purpose for which it was intended.

A New York Injury Lawyer said the trial court also instructed the jury that the law considers that the car manufacturer who sells a car it has made a warranty that the car is reasonably fit for the ordinary purposes it was intended. If the car was not fit for its intended purpose, the warranty is breached.

A Bronx Personal Injury Lawyer said the jury found that the car was not defective and found that the car manufacturer was not liable under the strict products liability cause of action. But the jury found that the car manufacturer breached the implied warranty of merchantability. The jury awarded the woman $1.2 million in damages to compensate for the personal injury she sustained..

The car manufacturer moved for a new trial on the ground that the jury finding that the car was not defective should have absolved it of liability both under the strict products liability cause of action and also under the implied warranty of merchantability. The trial court denied the motion for new trial. It is this order of the trial court that the car manufacturer now appeals.

The only issue in the Supreme Court was whether or not the trial court erred in denying the motion for new trial when it found that the jury verdict was not inconsistent.

The Supreme Court ruled that liability for the cause of action on strict products liability and implied warranty of merchantability are separate and distinct. The Court cited the purpose for the warranties: they were relied upon as a means for the complainant to recover economically for personal injury sustained by him for the use of defective goods.

The Court ruled that the “defect” for the purpose of attaching liability under implied warranty of merchantability originates from contract and it particularly addresses the purchaser’s disappointed expectations. The defect which attached liability under strict products liability actions originates from law and concerns itself with social policy and the allocation of risk.
In this case, the car manufacturer took the position that the design features such as the narrow track width and short wheel base was necessary to preserve the car’s ability to drive over irregular terrain of off-road travel. This is a proof that forms the defense under strict products liability. Under this distinction, the jury had to determine if the car’s value as an off-road vehicle outweighed the risk of rollover accidents that would occur if the vehicle was used for other driving tasks.

The injured woman’s proof focused on the car manufacturer’s warranty when it sold the car that it was safe and suitable for everyday road travel when it knew that its design made the car susceptible to rollover accidents. In other words, a Manhattan Personal Injury Lawyer explained, the evidence of the plaintiff showed that the car was advertised as safe and suitable for the ordinary purpose of routine street driving even when the car manufacturer knew that it was not.

For this reason, the Court found that the trial court did not err in dismissing the motion for new trial. The Court held that the jury verdict is not inconsistent because it is possible for there to be a breach of implied warranty even though the claim for strict products liability has not been established.

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On the evening of March 19, 1992, the defendant, while driving in an intoxicated condition, struck an individual, severing one of his legs and permanently disabling his other leg (personal injury). The defendant fled the scene with several motorists in pursuit. In an effort to elude his pursuers, defendant ran several red lights and ultimately collided with a vehicle (car accident) in which the second complainant was seated. Although defendant then attempted to flee on foot, he was apprehended by a by-stander. The police arrived shortly thereafter and the defendant was arrested.

After a jury trial, the defendant was found guilty of vehicular assault in the second degree for leaving the scene of an incident without reporting and reckless endangerment in the first degree.
The Vehicle and Traffic Law provides that "Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where said personal injury occurred, stop, exhibit his licence and insurance identification card ... give his name, residence ... and [other enumerated] information ... to the injured party, if practical, and also to a police officer ..."

According to a New York Injury Lawyer while the defendant failed to stop, report or provide any of the requisite information to the alleged victim (the second complainant) after he collided with her vehicle; instead, fled the scene of the second collision on foot, the trial evidence did not establish that the alleged 2nd victim sustained any personal or physical injury.

The Vehicle and Traffic Law contains an inherent anomaly where it is required that the offending driver have "scienter"--i.e., that he must "[know] or [have] cause to know" that personal injury has been caused to another person by virtue of his operation of a motor vehicle. The offense of leaving the scene of an incident without reporting, however, necessarily arises because the offender does not stop, inquire or ascertain whether injury resulted from his operation of a motor vehicle. Instead, the offender ignores the consequences of his actions by leaving the scene. Unless a person involved in a motor vehicle incident stops and/or inquires, the element of scienter (knowledge of the resulting injury) may be difficult to establish. It has been held that such knowledge can be gleaned or imputed from the circumstances surrounding the collision. The Court concluded that a jury could reasonably find that the victim's head hit defendant's windshield and that defendant, therefore, knew or had cause to know that personal injury was, in fact, caused to another. Where the impact of a motor vehicle collision is of great magnitude, a finding of scienter (or knowledge of injury) may be implicit. In such event, a jury could reasonably conclude, based upon the nature and extent of the impact, that personal injury was sustained by another and that the offending driver would have cause to know of such injury. Accordingly, it would appear that in the more typical "fender-bender" type collisions, the "victim" must, in fact, sustain some degree of personal or physical injury before knowledge of injury can be imputed to the offending driver.

A defendant's criminal culpability is measured by (1) the fact that he left the scene of an incident without reporting and (2) the extent to which he has harmed the victim. It follows that a prerequisite to finding a defendant guilty under either subdivision is that the victim actually sustain the type of damage or injury delineated in that particular subdivision. A Bronx Personal Injury Lawyer said that only then can it fairly be said that defendant "should have known" that the specific form of damage or injury had been caused to another by virtue of his operation of a motor vehicle.

The trial evidence did not sufficiently establish that the alleged victim sustained any personal injury as a result of the collision with defendant. Only damage to the automobile was sustained; hence, dismissed.

Now, the issue is raised on the imposition of Consecutive Terms of Incarceration, according to a Manhattan Personal Injury Lawyer. The Penal Law provides that there are two situations in which sentences imposed for two or more offenses must run concurrently - where offenses are committed through a single act or omission or where an act or omission constitutes both one of the offenses and a material element of the other.

The crimes for which defendant stands convicted were not committed through a single act. These acts constituted the crimes of vehicular assault in the second degree, leaving the scene of an incident without reporting (as to the first complainant) and reckless endangerment. Each crime was committed through distinct acts, occurring in a "consecutive" time frame, rather than as a result of a single act or omission.

As repeatedly held, where one crime is effectively completed before the other crime takes place, consecutive sentences is justified. The continuous, heinous course of conduct of the defendant, constituting three distinct criminal acts, warranted the imposition of consecutive sentences of imprisonment for leaving the scene of an incident without reporting, as a felony.
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A complainant man sought to recover damages for legal malpractice and filed an appeal from an order of the Supreme Court which granted the lawyers’ motion to dismiss the complaint.
It started when the counsel of the complainant represented him in a personal injury action resulting from injuries apparently sustained by the complainant.

A New York Injury Lawyer said that the complainant obtained a default decision against one of the lawyers in the personal injury action. Subsequent to the investigation on the issue of damages, the Supreme Court entered a money judgment in favor of the complainant. The complainant retained the law firm to collect on the money judgment. However, the lawyer subsequently signed consent to change attorney form in which the firm replaced him as the complainant's counsel in the personal injury action. The lawyer then filed an action to vacate the money judgment entered against him on the ground that he had not been properly served with process in the said action. In an order, the Supreme Court granted the action to vacate the money judgment and dismissed the action as asserted against the lawyer.

The complainant initiated the action against the lawyer to recover damages for legal malpractice. He claims that the lawyer had been negligent in failing to properly accomplish the service of process upon the personal injury lawyer prior to the expiration of the law of limitations in the action. The lawyer moved to dismiss the complaint on the ground that it was time-barred by the applicable three-year law of limitations and for failure to state a reason for action. The Supreme Court granted the branches of the motion and modified.

A Brooklyn Personal Injury Lawyer said that based on the record, the Supreme Court improperly granted the branch of motion to dismiss the complaint as time-barred and to dismiss a cause of action on the ground that it is barred by the applicable law of limitations. The lawyer accepted the initial burden of establishing that the time in which to sue has expired. The lawyer satisfied the initial burden by demonstrating that the claimed legal malpractice occurred more than three years before the instant action was initiated. Opposing the Supreme Court's determination, the evidentiary facts claimed by the man were sufficient to raise an issue of fact as to whether the law of limitations was charged by the policy of continuous representation because the lawyer continued to perform services for the complainant. However, the Supreme Court properly granted that branch of the lawyer's motion which was to dismiss the complaint for failure to state the reason for action. Based again on the record, a motion to dismiss will fail if all facts are assumed as true then every possible conclusion would be favorable to the complainant.

In an action to recover damages for legal malpractice, a complainant must demonstrate that the attorney failed to implement the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. A complainant must also demonstrate that the attorney's breach of duty proximately caused the complainant to sustain actual and ascertainable damages. To establish connection, a Bronx Personal Injury Lawyer said that the complainant must show that he or she would have exists in the underlying action or would not have incurred any damages if not for the lawyer's negligence. The complaint failed to contend any facts inclining to show that the lawyer caused the damages. The complainant would have prevailed in the action of the lawyer's alleged negligence in failing to serve process upon the lawyer in the personal injury action. The complainant's remaining arguments regarding dismissal are without merit. As a result, the Supreme Court properly granted the lawyer’s motion to dismiss the complaint.

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The deceased woman was seriously injured in an accident. She died from such accident injuries and was survived by her husband and twelve children, seven of whom were infants at the time of her death.

From 1966 to 1972, the Department of Social Services furnished AFDC (Assistance for Families with Dependent Children) to the deceased and her infant children in the sum of approximately $36,000. Since all assistance and care of whatever nature was furnished before the injury then no lien may be attached to any personal injury recovery.

The administrator of the deceased woman’s estate commenced a combined action for personal injuries and wrongful death. The combined action has been settled for $100,000. The Court allocated $12,500 to the personal injury cause payable to the estate for the 4 3/4ths days the woman survived.
The Department recognizes that in the absence of an assignment from the beneficiaries, there is no right to recover from the proceeds of the wrongful death cause. Recovery is sought by the Department solely from the estate.

The deceased woman’s estate is the estate of a Recipient. As an estate of a recipient, the estate is responsible for all AFDC allocated to such recipient as the head of the family under the Social Services Law. A recipient's estate is not responsible for Medical Assistance paid to such recipient unless the recipient was over 65 and left no surviving spouse or children under 21 under the Social Services Law.

According to a New York Injury Lawyer, the deceased woman’s estate is also the estate of an RR (Responsible Relative). The estate of a deceased adult Responsible Relative is responsible for all AFDC payments allocated to the Responsible Relative’s infant children under the Social Services Law. A Living Responsible Relative would not be responsible unless of sufficient ability during the period of assistance. The estate of a Responsible Relative is probably not responsible for MA furnished to infant children although a living parent would, if of sufficient ability, be responsible. It is determined in any event that the deceased was not of sufficient ability during the period of assistance.

It is obvious from the above that the Department's right to recover for AFDC payments to the deceased and her infant children will far exceed the net estate after administration expenses. The distribution of the proceeds of both the personal injury cause and the wrongful death cause is made by separate decision.

The recurring problem of the right of Social Service Departments to recover for public assistance and care given to needy recipients has been troubling our courts since 1935 and with increasing frequency of late. In our Supreme Court, such issues arise mainly with respect to claims by a Department against personal injury recoveries. A Brooklyn Personal Injury Lawyer said that the Surrogate's Courts are concerned with claims by a Department against estates and as well against beneficiaries of the estates.

Although there have been hundreds of reported decisions, for reasons which are obvious, none has attempted to articulate at any length the basis for such decision.

In the absence of a recovery ruling authorizing a Department to recover assistance and care correctly paid, there is no obligation to repay the Department. New York has enacted such recovery statutes. Although enacted separately, these recovery statutes are interrelated and dependent upon one another.

A recovery ruling is one which authorizes a Department to recover the cost of assistance and care from a recipient or the estate of such recipient, and from a responsible relative of such recipient or from the estate of such responsible relative.

Almost all assistance and care to the needy of the state is today given under one or another of the categorical programs mainly Assistance for Families with Dependent Children and Medical Assistance under the Social Security Act. A Bronx Personal Injury Lawyer said that as a condition of federal assistance, some of these programs limit the resources, both in terms of the recipient's property and contribution from his responsible relatives, to which the State may look in determining eligibility. As a consequence, New York has been compelled to amend its recovery rulings or enact new recovery rulings. Pre-amendment decisions in many cases are no longer relevant.

Since Departments often contend before the courts that denial of recovery imperils federal assistance, it should be observed that the Social Security Act does not require as a condition of assistance that States enact recovery orders. In fact many States have none. True, Congress has given implied recognition to recovery orders by requiring States which do recover to share the recovered proceeds. But the federal law is directed toward incorrectly not correctly paid assistance.

Under the recovery laws, recovery may often be had against the mother for assistance allocated to her but not to the children. The Departments are required to maintain separate allocations and are most cooperative in furnishing such records to the courts.

With these general observations, recovery law is the basic law which in the first instance determines liability and around which the other laws revolve.

It became a statewide law when the State took over from the municipality’s responsibility for public assistance.

As originally enacted in 1929, a spouse was responsible for the other spouse; grandparents and parents were responsible for their adult and infant grandchildren and adult and infant children and grandchildren were responsible for their parents and grandparents.

The first major change in the decree was made in 1936 and the amendment exempted infant children or grandchildren from all responsibility for their parents or grandparents. Although no decision has considered the question, the 1936 amendment also exempted infant spouses and infant parents from all responsibility for assistance and care given to their spouses or infant children, while such Responsible Relative spouse or parent was an infant.

The next and last major amendment was made in 1966. The 1966 amendment exempted adult children from responsibility for their parents and exempted parents from all responsibility for their adult children. Parents, however, remained responsible for their infant children and adult children remained responsible for their spouses and infant children.

It is observed that the 1966 amendment was commanded on the States by the Social Security Act but only with respect to the MA categorical program. New York State, in amending the law, made the new provisions applicable to all assistance whether federally or solely locally supported.

In addition to defining who are Responsible Relatives also limited the conditions under which a Responsible Relative could be found liable. The law specifically provides that one is a Responsible Relative only if of sufficient ability.

This provision, as discussed has been held to mean of sufficient ability during the period when assistance was being provided to the recipient relative.

The law further limits the liability of a Responsible Relative. Subject to such further limitations, under the definitions of present section of the law, only an adult spouse for assistance and care to his spouse or an adult parent and step-parent only for assistance and care to his infant children or stepchildren can be held responsible as a Responsible Relative.

But such Responsible Relatives can only be held responsible if they were of sufficient ability during the period when assistance was being given to their recipient relative.

And, in conclusion, an infant can never be held responsible as a Responsible Relative.
As first enacted in 1901 it applied only to the liability of the recipient. It was modified in 1929 to apply to recipients, to the estates of recipients, to the Responsible Relatives and to the estates of the Responsible Relatives.

A public welfare official may bring action or proceeding against a person discovered to have real or personal property, or against the estate of a person who dies leaving real or personal property, if such person or anyone for whose support he is or was liable, received assistance and care during the preceding ten years, and shall be entitled to recover up to the value of such property the cost of such assistance or care. Any public assistance or care received by such person shall constitute an implied contract.

As observed, the law gives to a Department the right to recover against the recipient himself; against the Responsible Relative of the recipient; against the estate of a recipient, and against the estate of the Responsible Relative.

The law distinguishes between actions brought to recover from the Living recipient or his living Responsible Relative and actions or claims against the Estates of deceased recipients or Responsible Relatives.

With respect to actions against living recipients and Responsible Relatives, from its inception in 1929, the law has permitted recovery from such persons discovered to have real or personal property. Whatever may have been the original purpose of employing such odd but broad statutory language, the decisions establish that the law has never been used by the Departments to recover from wages or salaries of living recipients or Responsible Relatives or from property acquired from such earnings. Today this is an established policy. The policy is understandable since the expressed purpose of public assistance is to assist the recipient to attain and retain self-supporting status.

Instead, as the decisions establish, the thrust of proceedings by the Departments against Living recipients and Responsible Relatives has been to recover from windfalls to them resulting from personal injury recoveries or inheritances as beneficiaries from another's estate.

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The plaintiff filed a complaint against the defendant for sustaining personal injury due to a trip and fall accident. The plaintiff experinced a trip and fall while walking on the sidewalk near the premises of the defendant. According to the complaint, plaintiff accuses the defendant of negligence for allowing the defect to remain on the sidewalk. The plaintiff alleges that the sidewalk has an uneven portion thus making it unsafe for anyone who passes by.

The plaintiff was a taxi driver who tripped on the alleged defective sidewalk and fractured his arm. The defendants were the owners of the building. Therefore, they also own the sidewalk within the building premises.

According to the statement of the plaintiff, he was just walking along the sidewalk near the building when he tripped on an uneven part of the sidewalk and fell on the ground. The plaintiff cited the tenants of the building as the negligent parties since they did not do anything to the sidewalk even though it had a defect.

A New York Injury Lawyer said that the defendant contested the allegations of the plaintiff and said that the tenants of the building should not be held responsible since they did not cause the defect on the sidewalk. They also do not know of any law that was broken which delegated the tenants of the building to maintain and repair any defects found on the sidewalk.

The tenants also asserted that they are not covered by the city administrative code which states that the owner of the physical property was required to maintain and ensure the safety of the sidewalk. Since the tenants are not the owners of the property, they are not required to maintain and ensure the safety of the sidewalk. The tenants have submitted lease agreements as proof that they did not own the building in question. The plaintiff had no evidence that the tenants created the defect on the sidewalk. The plaintiff also could not establish that the tenants made any existing defect even worse.

A Bronx Personal Injury Lawyer said that the counsel for the plaintiff has said the original lease agreement was not submitted in this case. The plaintiff has also declared that no sufficient proof was presented to support the defendant’s motion for summary judgment. The defendant provided only an affidavit from the legal counsel.

The co-defendant in this case is the owner of the building. The owner affirms that the motion for summary judgment was still premature. The building owner wants to know more about how the accident happened. The counsel of the building owner has declared that there may be more vital information which the plaintiff might have if the motion to dismiss the case was denied.

According to the provisions of the law, an abutting owner of a property should not have any liability for injuries sustained by someone who was just passing by on a defective sidewalk. The owner will only be liable for damages if the owner has caused the defect either by making special use of the sidewalk.

The administrative code of the city provides the responsibility to maintain and repair sidewalks on the property owners. Liability is also imposed on the abutting owners if any of them violates the statute and causes a breach of duty.

A Manhattan Personal Injury Lawyer said that in this regard, the court finds that the tenant can only be liable to damages if it was the owner of the property. Despite the existence of these provisions, the defendant has failed to establish sufficient evidence since only a counsel affidavit was presented to the court. The defendant also failed to get the testimony of a witness or a person who knows the information. The affidavit is not considered by law as sufficient basis for summary judgment.

A qualifed lawyer is ready to help you with your personal injury case. Contact the offices of Stephen Bilkis & Associates for a consultation.

The defendants of this case had filed for a summary judgment requesting dismissal for the personal injury complaint of the plaintiffs. The defendants have further claimed that the plaintiffs had failed in establishing that the alleged cause of their trip and fall was a defect on the premises. The defendants also contested that the reason for the plaintiffs’ fall was a trivial matter.

According to the plaintiff, she sustained personal injuries because she tripped and fell on the sidewalk just outside of the popular fast food chain. The restaurant and the physical property were owned by the defendant.

According to a New York Injury Lawyer, the plaintiff said in her testimony that the weather conditions on the day of the accident were cold. She went on to say that there was no snowfall or ice on the ground. The plaintiff is a regular user of the sidewalk in question since she used that route when getting to and back from her job. According to the plaintiff, there was not much room to move around on the sidewalk. She couldn’t have avoided the accident that day. She allegedly tripped on the uneven part of the sidewalk fronting the defendant’s premises. She also added the sidewalk was not crowded during that time.

On the other hand, a Brooklyn Personal Injury Lawyer said that the defendant contends that the height difference of the sidewalk is a trivial matter when it comes to the provisions of the law. The matter was not established as to the alleged defect being considered dangerous.
The plaintiff presented in her deposition specific pictures of the scene and the conditions that caused her to trip. She also asserted that there were no objects on the sidewalk or any precipitation since the weather was only cloudy that day. The plaintiff only cited the sidewalk as the cause of her fall.

According the law, a Bronx Personal Injury Lawyer explained that such defect on the sidewalk is trivial since it was not meant to be a trap. This trivial defect does not oblige the owner of the premises to act during instances that a pedestrian may happen to fall or stumble on uneven sidewalk.

The court has also found no evidence on the uneven sidewalk posing a threat by reason of its location. The sidewalk also does not pose a threat when there is a change in weather condition.

In summary of the plaintiff’s opposition to the defendant’s summary of judgment, the plaintiff asserted that the defendant was responsible for every part of its premises. She pointed out that the defendant had been using the sidewalk for its own special purposes. According to the plaintiff, the defendant had prior notice of such defect and failed to repair it. The defendant’s failure to repair the defect should be considered as negligence. The plaintiff also cited the provisions found on the administrative code since the code also debunks the trivial matter question.

According to the lease document of the defendant, there was a reference made regarding the condition of the sidewalk. The terms of the lease had included that the defendant was in-charge of repairing the said defect on the sidewalk. Yet, the defendant failed to repair it as provided by the terms of the lease.

However, the plaintiff in this case has not presented evidence that would constitute the sidewalk defect or uneven height differential as a trap or threat to pedestrian safety. The unevenness of the sidewalk was found to be only a trivial matter and does not hold the defendants liable for damages. Therefore, the court grants the summary of judgment as requested by both defendants – lessor of the property and the operator of the fast food chain. The personal injuries claim of the plaintiff is denied and the case dismissed.

Preparing for a personal injury case requires the expertise and training of competent legal counsel. If you want to have a legal consultation, contact Stephen Bilkis & Associates to get connected. The legal services of our office will increase your chances in court. Our legal team will be ready to listen and assist you in filing the lawsuit.

A lady was going down the stairs from the second floor of a building to the first floor lobby in a building located at 33-02 Skillman Avenue, Long Island City, New York. When she got to the last step, her left foot landed in a crack on the last step. Her foot got twisted in the crack; she lost her balance and fell. She brought this case for damages for the injuries she sustained as a result of her slip or trip and fall. She sued the owner of the building as well as the corporation that manages the building for the owner.

After the plaintiff was deposed, the building owner and building manager both filed a motion for summary judgment asking that the court dismiss the complaint at against them.

The Court first stated that a motion for summary judgment may only be granted when there are no more issues of material fact that need to be tried. It is the party who moved for summary judgment who has the burden of showing that he is entitled to the summary judgment as a matter of law because there is enough evidence to show that there is an absence of material facts that still need to be tried.

A New York Injury Lawyer said that after the person seeking the summary judgment proves that he is entitled to the judgment, the complaining party then bears the burden of proving that there are still material issues of fact that need to be tried by the court.

The Court also reiterated the rule that liability for a dangerous or defective condition on real property usually lies with the party who has ownership, occupancy, control or special use of the real property. When the suit involves a claim of negligence, the complaining party must show that there is a duty of care; and that the party being sued has breached the duty of care; and that the breach of the duty of care caused the damages to the complaining party.

A Brooklyn Personal Injury Lawyer said that first, the building manager and the building owner allege that the lady did not know what exactly caused her to trip and fall down the stairs. The Court perused the transcript of the deposition and it is clear from the answers of the lady that she knows that she stepped on a crack on the last step of the flight of stairs leading the second floor of the building down to the lobby. She testified that because she had stepped on the crack, her foot got twisted at the ankle; she lost her balance; and fell down the stairs. The Court then ruled that the lady had sufficiently alleged the cause of her trip and fall.

Second, the building manager and the building owner allege that the lady failed to testify that the defendant created the defect or dangerous condition or, that they had actual or constructive notice of it. The Court also rejected this argument. The Court ruled that the motion for summary judgment submitted by the building owner and building manager had no evidence to support their claim that they had no notice of the defect or dangerous condition. The Court suggested that building owner and the building manager should have adduced evidence as to when they last cleaned or inspected the last step of the stairs.

Third, the building manager and the building owner assert that the crack on which the lady tripped and fell is too trivial to be actionable. A Bronx Personal Injury Lawyer said that the Court also rejected this argument. The issue of a defect being too trivial to be actionable is a proper issue of fact that should be determined at trial. Also, the Court said that the building owner and the building manager should have presented evidence that the crack was indeed too trivial. But they presented no such evidence.

The Court ruled then that the motion for summary judgment should be denied and the case remanded for trial.

Perhaps you own or manage a piece of real property. Someone has sued you for damages because they tripped and fell on a defect or dangerous condition on your property. What should you do? What should you say? How can you protect yourself? Do not be like the building owner or the building manager in this case. They failed to present evidence on the motion they themselves filed. Know your legal options; be informed of your legal recourse. You need an skilled lawyer who specializes in cases such as these. Stephen Bilkis and Associates have licensed attorneys who can gather relevant evidence and present these intelligently before the court. Confer with a lawyer about your rights and your options: call Stephen Bilkis and Associates and ask for an appointment with an experienced lawyer who will assist you.

The driver of the bus that flipped over in the Bronx, last Saturday was interviewed by federal investigators Tuesday, a New York Injury Lawyer was told. It was the first chance that officials had since the crash that left 15 of its passengers dead and 17 others injured.

Federal investigators made use of the 3-hour interview with the bus driver, and were very anxious to learn just how much rest the driver had before the trip to Connecticut, as well as the six-hours that he was there as he waited on his passengers to gamble. They want to know just how much of a role, if any, that fatigue played in contributing to the accident. Investigators have been hearing reports from witnesses and survivors since the accident of the bus having drifted off the traveled portion of the roadway onto the shoulder multiple times.

The bus driver has been including in his statements since the auto accident that a passing tractor-trailer had clipped the bus, which caused him to lose control of the bus thereby causing the crash. Investigators have had the opportunity to investigate both the trailer of the truck and have interviewed the truck driver. The truck driver is being treated as a witness and not as a suspect.

New Jersey investigators are trying to determine the cause of another fatal bus crash that occurred on the New Jersey turnpike on Monday night. This crash killed the bus driver and one passenger. The bus driver that was thrown through the windshield was not wearing a seat belt.

Many of the bus’ passengers were obviously frightened, and the thoughts of the Bronx bus crash was in their minds, while there were a few who thought the buses tires had blown as the cause of the crash, according to a Bronx Personal Injury Lawyer.

The company that owns the bus involved in this crash has a history of issues regarding the safety of its buses and the driver’s qualifications.Calls to the bus company for comment were not immediately returned.

Have you been involved in an accident regardless of who was at fault? If you answered yes, contact Stephen Bilkis and Associates who can help you on your road to recovery and ensure that your rights remain intact and you receive the best settlement afforded under the law. We have office locations throughout New York City, including locations in Manhattan, the Bronx, Queens, Brooklyn, and Staten Island. We also have offices in Nassau County and Suffolk County on Long Island, as well as Westchester County. Call us today to schedule a free consultation.

A Queens man who beat up a 4-foot-11 Bronx woman pleaded guilty even as the victim’s mother called him a coward, sources told New York Injury Lawyers. He is accused of beating the woman into a coma over a parking space in the East Village.

The 35-year-old Queens man had already apologized for the February 25 assault of the woman and even made a video-taped confession to the police, but he still pleaded not guilty.“So I punched her in the face and I saw her fall to the ground,” the Queens man said after his arrest. “I hit her because she hit me.”

The 25-year-old victim is still in the hospital, as if this writing. Her mother says she has emerged from her coma, however.

“It’s a huge miracle,” the mother expressed to Bronx Personal Injury Lawyers.

According to the mother, the victim has sustained a brain injury and has a long way to go to full recovery, if she ever gets there at all. Part of the victim’s skull already had to be removed to reduce swelling in her brain. She will carry a scar on the top of her head from ear to ear for the rest of her life.

“I don’t know if she will be able to work again, drive a car or walk without assistance,” the mother said.

The victim was unemployed, after a November layoff from her job as a social worker with an HIV-prevention organization.

The suspect explained that he was very sorry and that he hit the woman “out of reflex” when she swatted him for trying to back his car into a parking space she was trying to save for her boyfriend. He drove off when he saw the victim’s boyfriend coming at him from across the street. Apparently unbothered by the incident, the suspect attended a friend’s birthday party later that night.

“I find it so callous that he hit her and drove away like a coward,” the mother sadly recalled. “It’s absurd that this happened over a parking spot. It’s absurd that he hit a girl and that he went to a party after he watched her hit the ground.”

These types of incidents leave not only physical scars, but emotional ones as well. If you have been the victim of a personal injury incident, it is important that you ensure that your rights are protected though every stage of the legal process. You may be entitled to compensation for your injuries which can include reimbursement for medical expenses, lost wages, and emotion distress.

Continue reading "Queens Man Pleads Not Guilty to Beating Up Petite Bronx Woman" »

A grandmother in El Reno, Oklahoma, has decided to settle a case she filed after local police shot her with a Taser in her own bed, a New York Injury Lawyer has learned. “I’m glad it’s over with,” said the 87-year-old woman.

“There’s one thing I told them, though. I wish that every person in law enforcement would have to take a full and complete course in paramedics. That way, maybe, they would think first before they shoot.”

The woman and her grandson sued the city of El Reno and the police officers after she was shot with the Taser in her own apartment. The grandson, 48 years old, explained that when he said “Don’t tase my granny!” to the officers, they threw him to the ground and handcuffed him.

There was going to be a civil trial on the matter, but the lawsuit was settled just days before the trial would have started. A Bronx Personal Injury Lawyer was unable to determine how much the settlement was, which would be paid to both grandmother and grandson out of the city’s insurance.

“We settled it with them. We can’t divulge the money end of it. But, you know, I bet they won’t be doing it ever again,” said the grandmother’s attorney.

According to the police, they came to the apartment after being told the grandmother may have been attempting suicide through a drug overdose. She was 86 at the time. A police officer reported that when they arrived, the grandmother withdrew a knife from under her pillow. “[The woman] looked me in the eyes and said, ‘If you try and get the knife, I will stab you and kill you.’

This officer says he did not use his Taser until other officers arrived and the woman continued to threaten him. According to him, his first shot did not have enough effect, so a second officer also used a Taser.

The grandmother denied she ever made any threats. She also denied she was ever attempting to commit suicide, either. And the knife? She said was using it to slice an orange and eat it in bed as she watched TV, as she often did.

Continue reading "Tasered Grandmother Settles Suit in El Reno, Oklahoma" »

Not many details are known in the case of a recent crash in Thousand Palms, California, where a vehicle was found 50 feet off the road. At least one person had major injuries resulting from the possible drunken driving, according to a New York Personal Injury Lawyer.

All 50 states and Puerto Rico apply two statutory offenses to driving under the influence of alcohol. The first offense is known as either driving under the influence (DWI), driving while intoxicated/impaired (DWI), or operating a vehicle while intoxicated/impaired (DWAI). This original charge is based solely upon a police officer's observations at the scene. The second offense is called "illegal per se" and involves driving with a Blood Alcohol Concentration (BAC) of 0.08 g/dL or higher - which has been illegal in all states since 2002. BAC (blood alcohol concentration) is a percentage of alcohol per deciliter of blood.

An average sized individual will have an approximate BAC of 0.04 percent in just one hour after drinking just two alcoholic beverages on an empty stomach.

“Alcohol begins impairing mental and physical reactivity after the first drink, and at 0.08, a person has lost many of the faculties that make him or her a safe driver – like paying attention, remaining alert, reacting to changes in the environment, obeying traffic signs and posted limits, etc.” a Bronx Personal Injury Lawyer reports.

The problems associated with drinking and driving are so severe that initiatives are raising money to buy and place breathalyzers inside bars in order to help patrons realize when they’ve had too much and should call a friend or a cab.

Every last drunk driving accident resulted from someone’s conscious decision to drive after consuming alcohol. This choice is completely avoidable, but too many individuals and families nationwide are affected by these poor decisions. According to MADD (Mothers Against Drunk Driving), 1 in every 3 people, at some point in their lives, will be involved in an alcohol-related accident, and someone is injured every minute in a drunk driving collision – in the U.S. alone. How completely unfortunate that so many have to be affected when a simple ‘no’ to driving yourself home could save lives.

Making the choice to drive while under the influence of alcohol can cause a host of problems. Not only could the subject open themselves up to a DWI charge, if there is an car accident, the defendant can open themselves up to additional civil suits for personal injury.

Continue reading "DWI Causes Major Injuries" »

A police officer was simply not watching where he was going when he ran a sunbather over with his SUV, according to a police report uncovered by a New York Injury Lawyer. People screamed at him to stop, but he just kept going.

The officer’s story is different. He claims he looked before making the U-turn that resulted in him running over the victim with his 5,000-pound vehicle. The victim was sitting in a chaise lounge at the time.

The report has quotes from witnesses who said there were a number of other people at the beach shouting for the officer to stop.

Miraculously, the victim survived being run over by the SUV. “I cannot believe the police officer said he looked, and did not see me,” he said.

The victim’s wife told a Bronx Personal Injury Lawyer her husband was “just too upset” to read the full police report.

The victim’s lawyer stated that the report, along with a video re-creation of the accident showed that the officer should have been able to clearly see the sunbather.

“This is the most extreme example of negligence imaginable,” the attorney recalled during the investigation. He went on to say that his client sustained a spinal injury and damage to his heart which leave him unable to work and that the accident “ruined his life”.

While the report makes things look bad for the cop, it also concludes there were no criminal actions involved.

The victim can still sue for damages, however, and his lawyer intends to sue the city, since the perpetrator is still a police officer. They are pressing a suit against both the police officer and the city for unspecified damage, looking for compensation for the victim who may not ever be able to work again.

Legal counsel for the city declined to comment in the matter, so it is unclear what defense they intend to mount, if any. It is entirely possible there may be a settlement in what looks like a clear case of extreme negligence.

Continue reading "Report May Condemn Cop Who Crushed Sunbather" »

A Stockton bus driver was arrested after police found her weaving on a California highway, according to a report. The bus driver had also run several vehicles off the road while she was swerving and driving erratically. Police were alerted to the situation and arrived before the bus driver could seriously injure someone. The bus driver was using the bus during non-school hours as she was caught on a Saturday evening.

The observer says that luckily no children were on the bus at the time the incident occurred. If children were on the bus when the incident occurred, the driver would be facing even more and serious charges than just an ordinary DUI arrest. The driver has been charged with driving under the influence and for driving under the influence with a blood alcohol level higher than the legal limit of .08. There is no word on the status of the bus driver’s job.

The bus driver was charged and then later released. She will face possible jail time and fines for her crime. The judge will also decide if she will be allowed to drive the bus in the future for any school district. The police believe that the bus driver will face the charges later in the spring. Depending on if this is her first offense will determine the amount of her fine and if she has jail time or not in her future.

When drunk driving is discovered in Manhattan and The Bronx any injuries are going to cost the driver a lot of money.

Continue reading "Bus Driver Charged in DUI " »

A 33-year-old woman was driving herself and three other people home from a funeral when she lost control of her car and it overturned and crashed.
The woman was driving at a high rate of speed when she swerved to avoid a stopped vehicle. When she swerved, the car flipped and struck a tree and light pole. A mother and her son were trapped in the backseat and declared dead at the scene. The third passenger was not injured.
The driver was initially charged with a misdemeanor DUI, but when she appeared in Traffic Court, she was arrested and charged with two counts of aggravated DWI involving a death. A New York Injury Lawyer reveals that the charges were upgraded after lab tests revealed her DNA was found on the driver’s side air bag; this proved she was at the wheel and drunk, which caused the death of two people. Her BAC was 0.17, more than twice the legal limit.
She admitted to detectives that she drank three and a half glasses of wine before she had gotten in the vehicle to drive her friend and son home. She also said that the mother had ‘hugged her’ which caused her to lose control. In The Bronx and Staten Island drunk driving is frowned upon to the nth degree.
Driving drunk is a decision this woman made and it resulted in the death of a close friend and her son. This completely preventable act has left its mark on this woman for the rest of her life. With motor vehicle accidents occurring daily that result in injury and death, the great majority of them involve alcohol. There is a reason why every state in the union has declared a legal limit of 0.08 BAC. Alcohol begins impairing mental and physical reactivity after the first drink, and at 0.08, a person has lost many of the faculties that make him or her a safe driver. The problems associated with drinking and driving are so severe that there are even initiatives raising money to place breathalyzers in bars to help patrons realize when they’ve had too much and should call a friend or a cab and avoid a DWI incident.

Continue reading "Upgraded Charges Possible after Fatality in Woman’s DUI Case" »