New York Personal Injury Lawyer Blog

A general contractor was hired by a tenant of a building in Manhattan. The project was to install duct work into the intake air duct down in a shaft below street level in front of the building. A New York Injury Lawyer said the general contractor hired an air conditioning contractor to install the duct work at the job site. The air conditioning contractor subcontracted out its work to the metal sheet contractor.

The complainant was employed by the metal sheet contractor as a journeyman sheet metal worker, whose responsibilities were to hang and install duct work through the supervision of the complainant’s foreman. On November 9, 2004, the complainant and his foreman went to the building in order to install a large piece of prefabricated duct work, known as gooseneck duct, below street level. According to the complainant, the gooseneck duct was the size of a car and was approximately six feet long, six feet wide, and five feet tall, and weighed between 110 and 125 pounds. The site where the gooseneck duct was to be placed was located below a series of about 40 metal grates that were in place on the ground. Each grate measure approximately two feet by four feet, and this grating covered an area of the ground measuring approximately 12 feet by 8 feet. The vault below the grating was approximately 15 feet deep.

In order to install the gooseneck duct below ground, the grating on the street level needed to be opened. The gooseneck duct was to be lowered through an opening in the grates in order to be installed below them.

Upon the complainant’s arrival together with his foreman at the job site, they met with a representative from the general contractor, The general contractor representative who showed them where the gooseneck duct was going to be installed in the area below the grates and told them to wait for the representatives of the buildings to see how they would go about installing it. A mechanic and an engineer, who were employees of the building met with the complainant and the foreman. The two building employees then told the complainant and his foreman that the gooseneck duct was going to be lowered though the grating, and asked the foreman which grate was to be opened. The foreman told the building employees which grate to open and the complainant and his foreman went back to their truck to unload the gooseneck duct. As the complainant and his foreman were unloading the gooseneck duct off the truck, the mechanic removed the grate by unbolting four clips that held the grate down, lifting the grate up, and leaning it back against the building. However, the mechanic did not open the grate that the foreman had requested him to open. Instead, the mechanic opened the grate in the far corner, creating an unprotected two feet by four feet holes.

In order to maneuver the gooseneck duct to the grating area, the complainant and his foreman had to take the gooseneck duct around a rectangular billboard sign, which was attached to posts that were bolted to the ground over the grates. They transported the gooseneck duct to the area of the billboard on a dolly, and, when they arrived at the billboard area, they removed the gooseneck duct from the dolly, and attempted to drag the gooseneck duct behind the billboard on the left side in the space between the billboard and the building. While the gooseneck duct was on the sidewalk over the grates and the complainant was attempting to pull it into position, he let go of the gooseneck duct and fell backwards down approximately 15 feet into the hole created by the open grate.

Consequently, the complainant filed the action against the property manager and the general contractor, seeking to recover damages for the personal injuries sustained by him due to his slip and fall. The complaint alleges claims of common-law negligence, and violations of Labor Laws. The general contractor and the property manager both interposed their answers and the property manager asserted cross claims against the general contractor. The general contractor filed a third-party action against the metal sheet contractor. The metal sheet contractor answered the third-party complaint and the general contractor filed a second third party complaint against the air conditioning contractor. The air conditioning contractor interposed its answer and served cross claims against the metal sheet contractor. The general contractor sought to voluntarily discontinue its second third-party action against the air conditioning contractor, but none of the parties, other than the general contractor and the air conditioning contractor agreed to sign and execute the stipulation of discontinuance. The complainant filed his note of issue upon the completion of discovery.

The complainant argues that he is entitled to summary judgment in his favor on his Labor Law claim. The Labor Law imposes liability upon owners and contractors and their agents who fail to provide or erect safety devices necessary to give reasonable and adequate protection and safety for workers engaged in construction work who are exposed to elevation-related hazards. The legislative purpose behind the enactment is to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect them from an accident. A Long Island Personal Injury Lawyer said it is well settled that Labor Law is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed.

In opposition to the complainant’s motion for summary judgment and in support of its motion insofar as it seeks summary judgment dismissing the complainant’s Labor Law claim, the property manager contends that the Labor Law is inapplicable to it because it was not the owner of the premises, a general contractor, or the agent of the owner or general contractor. However, a Brooklyn Personal Injury Lawyer said while the property manager was not the owner of the premises or a general contractor, a party can be deemed a statutory agent under the Labor Law and may be held vicariously liable as an agent of the property owner for injuries sustained pursuant to Labor Law where it had the ability to control the activity which brought about the injury.
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When the work giving rise to the duty to conform to the requirements of Labor Law has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent of the owner or general contractor. Indeed, it has been held that a property manager can be held liable under Labor Law as an agent of the owner.

The property manager argues that although it served as the property manager for the premises, it had no contractual relationship to the construction work which the complainant was performing. The property manager relies upon the fact that the general contractor’s contract for the project was with the tenant. However, it is unnecessary for the property manager to have it actually contracted for the work in order for it to be held liable under Labor Law.

The property manager also relies upon their mechanic’s deposition testimony that his supervisor, had told him to go up to the street level and open a piece of the grating for the tenant. Such deposition testimony, however, only supports the argument that the property manager was acting as an agent for the owner when its employee, the mechanic opened the grate for the complainant to install the gooseneck duct.

While the property manager argues that it did not supervise or control the complainant’s work, their employees, the mechanic and the engineer, were present at the work site. The property manager contends that the removal of the grate by their mechanic did not constitute supervision or control over the complainant’s work since it was the foreman who directed their mechanic to remove a particular grating. The foreman’s direction as to which grate to open, however, did not negate any independent duties which the property manager may have had under the Labor Law, or prevent them from assuming those duties and thereby becoming vicariously liable as an agent of the property owner.

With respect to the supervision and control of the property manager over the complainant’s work, the foreman testified, at his deposition, that a representative from the general contractor told them that they had to wait for somebody from the building to come and see how they were going to get the gooseneck duct into the building. The foreman further testified, at his deposition, that the people from the building then told them that they should bring the gooseneck duct down through the grating. Although according to the foreman, he told the people from the building which grate he wanted removed, the mechanic decided to open a different grate because he thought it would be the safest one, and neither the complainant nor the foreman was informed of it.

By opening the grating and thereby creating an open unprotected hole, the property manager, through its employees, exercised sufficient supervision and control over the complainant’s work so as to render it liable under Labor Law as an agent of the owner. While vigorously disputing the liability of the property manager, which is acknowledged to be an incorrect accused and not the owner of the premises, the company has acknowledged that it served as the property manager for the subject premises. Thus, as the agent for the owner, they would be liable to the complainant under the Labor Law. Thus, the property manager’s cross motion, insofar as it seeks dismissal of the complainant’s Labor Law claim, must be denied.

In opposition to the complainant’s motion for summary judgment in his favor, the property manager argues that the complainant is not entitled to summary judgment because there is a question of fact as to whether the complainant acts were the sole proximate cause of his injuries. Specifically, the property manager contends that the complainant was aware of the necessity for a grate to be removed so that the job could be carried out, but did not pay attention to the work of the employees. The property manager asserts that the complainant’s failure to pay attention is a sufficient ground to deny his motion for summary judgment.

The property manager's argument is rejected. Where a violation of Labor Law is a proximate cause of an accident, the worker's conduct cannot be deemed solely to blame for it. The law states that contributory negligence will not exonerate an accused who has violated the statute and proximately caused a complainant’s injury.

The general contractor and the metal sheet contractor, in opposition to the complainant’s motion, argue that Labor Law is inapplicable to the case because the complainant was not involved in any work related to an elevation differential, but was, instead, merely moving the gooseneck duct from one location on the ground to another and not attempting to lower it. The argument is rejected. Although the complainant was at ground level, the hole into which he fell was 15 feet deep, and, thus, there was an elevation differential. The purpose of the complainant’s actions, moreover, was to move the duct from ground level to the lower level through an opening in the grate pursuant to instruction. Traversing the ground where there was a 15 foot deep hole constituted an elevation-related risk covered by Labor Law.

The general contractor further argues that an opening created by the removal of a grate is akin to an opening created by the removal of a manhole cover. The Appellate Division in so holding, specifically noted that while Labor Law is applicable to work performed at heights or where the work itself involves risks related to differentials in elevation, the work in which the injured the complainant was involved in that case was wholly unrelated to an elevation-related hazard, the manhole in which he fell. Thus, the complainant’s injury was not a direct consequence of the performance of his work.

Doing our job sometimes exposes us to danger. If you are harmed or injured while at work, you can seek the services of Brooklyn Slip and Fall Attorneys together with Brooklyn Accident Lawyers. If you are unable to work and earn a living due to injuries at work, you may consult a Brooklyn Workers Compensation Lawyer from Stephen Bilkis and Associates.

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.

Two neighbors had a common fence between their properties. The owner of one of the properties had three young children and a rambunctious dog. The owners of the adjoining property were an elderly couple who lived with their niece.

A New York Injury Lawyer said ihttp://www.1800nynylaw.com/n the year prior to the incident, the elderly lady petted the dog through the fence and called the dog “her boyfriend” because he stood up and licked people’s faces. Prior to the incident, the dog would put his forepaws on the fence and barked.

The dog also put his forepaws on people’s chests but in a friendly and non-aggressive manner. But the dog was big and some people are startled by the dog’s overly friendly behavior.
On June 4, 2008, the day of the incident, the elderly lady was gardening in her backyard when the dog jumped over the fence and headed for the lady. The lady was so startled by the dog jumping through the fence that she backed away from the dog and she fell (trip and fall). There was no dog bite nor dog attack.

The elderly lady sued her next door neighbors for damages she sustained as a result of her fall. The elderly lady contended that the dog had vicious propensities which her next door neighbor knew or should have known.

During the trial, the elderly lady asked for a directed verdict. She claimed that the defendant failed to present a case for the jury to decide. She asked the trial court judge to order a verdict even without allowing the jury to consider the evidence because there can only be one verdict. The judge reserved decision on the elderly lady’s motion.

The judge gave instructions to the jury. A Brooklyn Personal Injury Lawyer said he asked them to answer the question: did the dog have vicious propensities on June 4, 2008? Then he asked the jury to consider next that if the dog had vicious propensities, did the dog owners know about their dog’s propensities?

The jury answered that the dog had no vicious propensities on June 4, 2008. The elderly lady then asked the trial court for a directed judgment even when the jury had already rendered its verdict. The trial court denied the elderly lady’s motion for a directed judgment. She then appealed the denial of her motion for a directed verdict.

A Long Island Personal Injury Lawyer said the only issue before the Supreme Court is whether or not the plaintiff was entitled to a judgment despite the jury verdict.

The Court held that a vicious propensity is a natural inclination or usual habit of the dog to act in a way that endangers people or property. It is not necessary that the dog had bitten some other person prior to the dog attack complained of. If there is no evidence of a vicious propensity in the dog then the jury had to find for the dog owners and dismiss the complaint. But if the jury found a vicious propensity in the dog then they had to enter a verdict for the elderly lady.

The trial judge could not grant a motion for a judgment as a matter of law unless it is shown that there is no valid line of reasoning or any other permissible inference which can be reached other than the conclusion reached by the jury on the basis of the evidence presented.

The Court held that the jury reached a rational verdict which was duly supported by the evidence. The jury used its common knowledge and experience. There is no reason why the jury verdict should be disturbed as there is no showing that the jury made prejudicial errors in considering the evidence. There is no showing that the judge’s instructions to the jury were incorrect. At any rate, where there is a showing of errors of the kind enumerated here, the remedy of the judge is not to enter a directed verdict for the elderly lady but to order a new trial.
The Court resolved to uphold the jury verdict.

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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.

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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.

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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 respondent in the case is the New York State Insurance Fund. The appellants in the case are Merchants Insurance Company of New Hampshire, Inc., and CPN Construction Corporation.

About the Case

The defendant in the case, Merchants Insurance Company of New Hampshire, seeks an inter alia for a judgment that was made by the Kings County Supreme Court which orders that the company is required to defend and indemnify the CPN Construction Corporation in a personal injury suit titled Salinas versus Briarwood Ave. Association. The defendant is appealing the order from the Supreme Court that granted the plaintiffs motion for a summary judgment and declared they are obligated to defend the defendants, CPN Construction Corporation and Building Block Contracting Corporation in the personal injury action.

Case Facts

Merchants Insurance Company of New Hampshire issued separate insurance policies to both CPN Construction Corporation and Building Block Contracting Corporation. Building Block entered into a contract with Hallet’s Cove, a general contractor.

The personal injury suit pertains to Jubencio Salinas, who was working for Building Block, CPN, or both when he fell from a height in a construction accident. Salinas and his wife are seeking to recover damages for the personal injuries he sustained from the accident. They commenced their action against Hallet’s Cove. Hallet’s Cove then entered a third party action against CPN and Building Block to seek contractual indemnification and contributions.

Merchants Insurance Company was unable to find the principal coverage for Building Block and disclaimed coverage a year and a half after the third party action was commenced. Merchants Insurance Company also disclaimed coverage on the policy that was issued to CPN. They cited a clause in the policy that excludes bodily injury of an employee of the insured. A New York Injury Lawyer said the policy that was issued to CPN provided that the exclusion did not apply to liability assumed under an “insured contract.” Merchants Insurance Company claims that there was no contract between Hallet’s Cove and CPN.

A Brooklyn Personal Injury Lawyer said the action in this case by the New York State Insurance Fund is to declare that Merchants Insurance Company is obligated to indemnify and defend both CPN and Building Block in the underlying personal injury suit and this was granted by the Supreme Court.

Case Outcome

This court feels that the granting of the summary judgment to the New York State Insurance Fund was an error in regard to the policy issued by Merchants Insurance Company to CPN. It is found that the exclusion for bodily injuries for CPN employees is applicable in this case as the contract with Hallet’s Cove was made by Building Block and not by CPN.

However, a Long Island Personal Injury Lawyer said that there is a question of fact that exists to prevent the grant of a summary judgment to Merchants Insurance Company to uphold their disclaimer under the insurance policy that they issued to CPN. To grant this disclaimer, it must be found that Salinas was employed by CPN. A trial for this issue is necessary and therefore a summary motion cannot be granted.

Since it is confusing as to who employed Salinas at the time of the accident, a 49 day delay to issue the disclaimer is not unreasonable and is thereby granted by the Court.

The remaining contentions as made by Merchants Insurance Company are without merit, unpreserved for appellate review, and need not be reached.

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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 plaintiffs in the case are Diane Jakubowski, who is the proposed executrix of the estate of Jan Jakubowski, and Diane Jakubowski individually. The defendants in the case are Huntington Hospital, Nick Fitterman M.D., Cristina Pruzan, M.D., Hilaire Farm Skilled Living and Rehabilitation Center, and Huntington Village Rehabilitation and Nursing.

Plaintiff’s Complaint

A New York Injury Lawyer said the initial complaint made by the plaintiff was filed on December 3, 2010. The complaint asserts a cause of action for medical malpractice towards each of the defendants. This cause of action asserts that beginning on or around June 3rd, and continuing through the course of treatment Jan Jakubowski was a patient of Nick Fitterman M.D. and Cristina Pruzan and they both failed to care for him properly, which caused him to sustain severe and serious injuries and further complications. A New York Injury Lawyer said at this time Jan Jakubowski was also a patient of Hilairic Farm Skilled Living and Rehabilitation and Huntington Village Rehabilitation. A second cause of action in the complaint is for lack of informed consent towards each of the defendants. The third cause of action in the complaint is premised on the negligent hiring and supervision of Huntington Hospital, Huntington Village Rehabilitation, and Hilaire Farm Skilled Living and Rehabilitation Center. The fourth cause of action is for loss of services on behalf of Diane Jakubowski, spouse of the deceased, Jan Jakubowski.

Defendants Argument

The defendants in the case are seeking dismissal of the complaint. The basis for the dismissal is that Diane Jakubowski, the executrix of the estate, lacked the ability to commence the action on December 3, 2010 as she was not yet the appointed executrix. Dismissal of the complaint is also sought on the basis that the statute of limitations had expired when they were served the amended summons and complaint that reflected her capacity as executrix of the estate.

Court Orders

Based on the evidence that has been supplied in this case, the Court makes the following orders.

The first order is that the motion by the defendants Hilaire Farm Skilled Living and Rehabilitation Center and Huntington Village Rehabilitation and Nursing for the dismissal of the complaint made by the plaintiff is granted. A Brooklyn Personal Injury Lawyer said the basis for this order is the fact that the plaintiff did not have the capacity to sue when the action was started. The complaint that was made against the defendants is dismissed without prejudice. Additionally, the causes of action based on medical malpractice and negligence is denied.

The second order is that the motion made by the plaintiff for an order that allows the plaintiff to amend the caption of this particular action is also denied. An NYC Personal Injury Lawyer the plaintiff is granted the right to recommence this action within six months of the date that it has been dismissed and if the plaintiff is advised, she may commence a new action by purchasing a new Index Number and filing a summons and complaint.

The court further orders that the motion made by the defendants Huntington Hospital, Cristina Pruzan, MIX, and Nick Fitterman, M.D. for an order that dismisses the action for medical malpractice is denied. However, the action that dismisses the action based on the plaintiff not having the capacity to sue when the action began is granted.

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A woman during the course of her pregnancy informed her two doctors that there was a blood incompatibility between her and her husband. Because of this incompatibility, their first child developed a condition known as thrombocytopenia at or following his birth. The woman was afraid that the baby she was carrying will develop the same disease as the first child, so she informed her doctors so take preparations can be made. A New York Injury Lawyer said that having been forewarned, the doctors still failed to take proper pre-birth precautions with regard to the second child. She is alleging that the child died because of thrombocytopenia or respiratory distress syndrome or hylem membrane disease caused by the negligence of the defendants.

She is filing an action for the medical malpractice, negligence, breach of contract and fraud arising from the care and treatment by the defendants during the course of her pregnancy. The first cause of action is based on the wrongful death of the child due to the defendants’ medical malpractice.

The second cause of action seeks recovery for the emotional and psychological pain and suffering and mental and physical injury she incurred. The third cause of action seeks also recovery based on the same grounds as the second with respect to the husband. The fourth cause of action seeks damages arising from the breach of contract. The fifth cause of action seeks recovery for the medical and surgical expenses, also for emotional, psychological and physical pain and suffering based on the gross negligence of the defendants in failing to take proper precaution even after being informed that the second child would likely develop the same disease as the first child. The final cause of action is based on the fraudulent representations of the defendants, that they were familiar with the records of the plaintiff’s concerning the birth of her first child and that they were prepared to handle any problems resulting to the blood incompatibility of the her and her husband, particularly the thrombocytopenia, which would likely to develop in her second child also.

The defendants move to dismiss on the grounds that the second, third and fourth causes of action for failed to state a claim upon which relief may be granted and moved for summary judgment dismissing the fifth and sixth cause of action. A Brooklyn Personal Injury Lawyer said that the Special Term dismissed the second, third and fourth causes of action, granted summary judgment in favor of the defendants on the six cause of action and a portion of the fifth cause of action, seeking recovery for emotional, psychological and physical pain and suffering.

The court ruled in jurisprudence, that recovery for emotional harm suffered by one person as a result of injuries sustained by another should be eliminated. The court’s basis for this is the “bystander rule.” This rule prevents the recovery for emotional harm resulting from physical injuries sustained by another.

However, in this case, there is a breach of duty to the mother as well as to the child. The bystander rule is not applicable because it involves a breach of duty only to the victim. The mother was more than a mere bystander, having a unique physiological relationship with the baby.

In order to recover for emotional harm plaintiff must show in addition to a breach of duty owed to her, that she was the person directly injured by that breach. A Long Island Personal Injury Lawyer said the emotional harm and mental suffering is caused by the loss of the child, and not directly arose from the defendants’ breach of their duty.

The mother does not seek to recover damages from the psychic and emotional shock she sustained from witnessing injuries to her child resulting from the doctor’s breach of duty owed to the child, but she claims damages based on the doctor’s breach of duty owed to her and on this she may recover. The defendants’ were informed of the blood incompatibility of the plaintiff and that the first child developed thrombocytopenia still failed to take the proper measures in caring for the mother during her pregnancy and prevent the development of the disease which caused the death of the newborn child.

The plaintiffs desired to have a second child. If the defendant only fulfilled their duties owed to the plaintiff, they would have had a healthy child who survived the blood condition, as had her firstborn child. After warning them of the blood incompatibility, they should have taken the proper precaution and measures to ensure the baby’s health and safety. Because of the defendants’ medical malpractice, the baby developed thrombocytopenia, which caused his death. Because of this breach of duty, the parents should be entitled to damages.

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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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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 plaintiffs in the case are Louis V. Greco individually and as the Trustee for the Gamcrefk Trust. The defendants in the case are Ulmer & Berne L.L.P.

Case History

The defendants in the case, Ulmer & Berne, Jeffrey S. Dunlap, Esq., and Christopher P. Fisher, Esq., move for an order that dismisses the complaints by the plaintiffs both individually and as the trustee for the Gamcrefk Trust on the basis of lack of personal jurisdiction and dismissing the complaint made by the plaintiff based on the expiration of the statute of limitations.

Case Background and Facts

The plaintiffs are seeking to recover damages for legal malpractice, undue enrichment, breach of contract, and attorney’s fees that resulted from the Ulmer defendants’ representation of the plaintiffs in the underlying action from the case Brian Sullivan versus Alain Kodsi. This case was commenced in the state of Illinois. The action stemmed from a business relationship that was entered into by Kodsi, Sullivan, and Antonio Gracias in 1996 for the purpose of purchasing mid-sized companies. Sullivan alleges that they found a suitable company located in Ohio, but he was told by Kodsi and Gracias that they were going to purchase the company and exclude him from the deal. A New York Injury Lawyer said the company was purchased in June of 1998 and Sullivan sought action to recover damages, based on claims of breach of a partnership agreement.

The Ulmer defendants appeared in the Illinois action as counsel for Kodsi in July of 2002. During this instant action the plaintiffs allege the firm failed to respond to specific requests to admit in the Illinois action. This resulted in an agreement pursuant to which Kodsi and the Trust conceded certain points, which ultimately forced them to settle for an amount that was greater than necessary.

Defendants Arguments

The defendants, in support of their motion rely upon affirmation from the counsel and from affidavits provided by Dunlap and Fisher that argue this court does not have jurisdiction over them. They further argue that the headquarters of the firm are located in Cleveland, Ohio with other offices throughout Ohio and in Chicago, Illinois. A Brooklyn Personal Injury Lawyer said they do not maintain and office in New York and do not own any property here or regularly conduct business in this state.

Plaintiffs Argument

The plaintiff argues that this court may exercise jurisdiction over the Ulmer defendants because the firm has residents of the state and businesses for clients as well as they have visited New York in connection with the action in Illinois. A Suffolk County Personal Injury Lawyer said the plaintiff relies on an affidavit submitted by Greco that alleges he is a Brooklyn resident and he has been trustee of the trust since the fall of 2005.

Case Results

In this case, the Court finds that the plaintiffs have failed to establish any facts that would entitle them to pursue discovery and demonstrate that the court should exercise personal injury jurisdiction over the Ulmer defendants. The court concludes that the plaintiff has failed to submit sufficient facts to demonstrate that the defendant engaged in activities that made it foreseeable that their products would be marketed and sold in New York.

According to the evidence that has been provided in this case, the court rules in favor of the Ulmer Defendants. The action against them is dismissed and all other claims against them shall be severed and shall continue.

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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.

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A man died and his two of his daughters were removed from the care of his wife and the children’s maternal grandmother by the City Children's Services without a court order. The City Children’s Services filed neglect petitions against all the children’s father, mother and grandmother. A New York Injury Lawyer said the petitions allege that the mother and the father neglected the son by failing to provide adequate supervision and guardianship. Specifically, the petitions allege that when the couple together with their son left the grandmother's home, they stayed in an abandoned building in Brooklyn. A New york he petitions allege that the building had no heat or electricity and access to the building was obtained through a window that the father broke on a prior occasion. The baby fell asleep in a stroller and the couple slept on the mattress on the floor.

When the baby started crying, his father woke up and gave him a bottle propped up with a tee-shirt and went back to sleep. The father woke up six or seven hours later and found the baby cold and stiff. He attempted to revive the baby but failed then told her wife to call 911 in a payphone. The child’s mother went out but returned without making the call and the father was the one to call 911. The baby was taken to the hospital where he was pronounced dead.
The petitions also allege that the children were neglected as a result of the failure of their mother, father and maternal grandmother to provide adequate food, clothing and shelter. Specifically, the petitions allege that the children were dirty and not adequately fed and that the home was dirty and infested with roaches and mice. The petitions also allege that garbage bags, dirty dishes and dirty clothing were observed throughout the residence. Finally, the petitions allege that the two daughters were derivatively neglected children by virtue of the neglect of their baby brother. On the day the petitions were filed, the Court granted the request of the City Children Services for a remand of the two girls.

A fact-finding hearing was conducted for 15 months and the City Children’s Services withdrew the petitions against the maternal grandmother after she moved to dismiss the petitions for failure to establish a legitimate case. A witness of the fact finding was a caseworker who conducted the initial investigation into the allegations of neglect. She visited the case address and testified that various family members were present when she visited. She indicated, however, that the maternal grandmother was rarely present since she was generally at work. She testified that it was in a deplorable condition, infested with roaches and vermin that although the conditions of the home were improved, they subsequently deteriorated. She testified further that the children’s father did not live at the case address and he was not even allowed to visit there.

The Medical Examiner testified and was qualified as an expert in forensic pathology. She testified that the cause of the baby's death was positional asphyxia due to soft bedding covering the baby's mouth and she concluded that it was an accident. She testified that these conclusions were based on a reasonable degree of medical certainty. She further testified that the baby had been placed in the stroller and that he eventually slid down and as a result, the baby's airway was covered by the blanket, tee-shirt and the bottle in the stroller. The Medical Examiner also testified that the child, like all babies younger than six months of age, did not have the musculature in the neck necessary to lift his head, hold it up and move his body to get air. The Autopsy Report lists the manner of death as accident while asleep in stroller with clothing over airway and there was absolutely no intent to cause the death. The Medical Examiner also testified that the baby was dirty, had dirty fingernails and the baby also had areas of thinning hair around the scalp which suggested that the baby had been lying down in the same position for extended periods of time, long enough to kill the hair follicles. The Autopsy Report also indicated that marks were observed on the baby's scalp consistent with lice.

Neither parent testified on the hearing. The father called a witness doctor who was qualified as an expert in pediatrics and child abuse. A Brooklyn Personal Injury Laywer said the expert testified that the circumstances surrounding the baby's death were similar to Sudden Infant Death Syndrome. The accused parties assert that the petitions should be dismissed because the baby's death was an accident. They emphasize that they never intended to hurt their son and that the Medical Examiner's testimony establishes that the death was unintentional.

The City Children’s Services and the Attorney for the two daughters disagree. They contend that a finding of neglect can be based on an unintentional injury and although the parents did not specifically intend to harm their son, they failed to exercise a minimum degree of care that resulted to his death. Accordingly, they assert that findings of neglect are warranted against both parents.

For the reasons more fully set forth, the Court agrees with the City Children’s Services and the Attorney for the Children and enters findings of neglect against the mother and findings of derivative neglect against both parents. A Queens Personal Injury Lawyer said both parents equate the term accident with unintentional injury. They assert that since the son’s death was unintentional, it was accidental and should be immune from liability of neglect. The Court disagrees with the conclusion. The Court states that the parents ignore the plain language of the Family Court Act, which specifically provides for a finding of neglect based on an unintentional injury. Furthermore, the parents ignore the fundamental concerts of tort law; specifically, that liability in negligence does not require intent to cause injury. It requires only a failure to exercise reasonable care, which results in an injury that was reasonably foreseeable. Lastly, the Court states that the term accident does not apply when the parties' intentional acts had unintended consequences and it is therefore not a defense to allegations of neglect.

The Court rejects the parents’ assertion that the child's death was accidental and finds instead that it was the result of the parents' failure to exercise a reasonable degree of care. Accordingly, the Court enters findings of neglect and derivative neglect against the mother and findings of derivative neglect against the father.

The death of the couple’s son may have been unintended but it was not the result of an unavoidable or inevitable accident. There was nothing in the circumstances leading up to the death that was unusual or unexpected. Although the couple did not intend to harm their baby and the results of their conduct were unplanned, their actions were otherwise deliberate. They intentionally removed a two-month-old infant from his home late in the night while he was recovering from a cold, without making adequate sleeping arrangements or taking necessary precautions against the cold, in order to bring him to an abandoned building without heat or electricity and allow him to sleep in a stroller for six hours without supervision, with a bottle propped into his mouth by a tee-shirt. The actions clearly demonstrate a failure to exercise a minimum degree of care. The evidence establishes that the children's physical, mental or emotional condition was placed in imminent danger of impairment. In reaching the conclusions, the Court notes that both parents chose not to testify and such warrants the drawing of the strongest negative inference against them that the evidence will allow.

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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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A personal injury lawsuit (private individual vs. 1st additional insured) was commenced in February 2006. The plaintiffs in the personal injury action allege that the private individual, a Connecticut resident, sustained serious bodily injuries (injury) in an accident which led to her death (wrongful death) on 2 April 2004, when she exited from an elevator (defective product) in a building located in Hamden Connecticut (the "building").

The defendants in the personal injury action were the 1st and 2nd additional insured and the elevator company. The building was owned by the 1st additional insured on the date of the accident and the 2nd additional insured is a member of the 1st additional insured. The elevator company entered into an agreement with the 1st and 2nd additional insured to maintain the elevators in the building where they were required to name each entity as an additional insured under its insurance contract. A commercial general liability insurance policy (from the 1st defendant) was obtained by the elevator company providing Commercial Liability Coverage effective on the date of the private individual’s accident.

A New York Injury Lawyer said the personal injury action was settled for a total sum of $2.5 million. The settlement in the personal injury action was paid as follows: [1] Plaintiff, on behalf of the 1st and/or 2nd additional insured — $1,000,000; [2] 1st defendant on behalf of the elevator Company — $1,000,000; and [3] 2nd defendant on behalf of 1st and/or 1nd additional insured — $500,000. Plaintiff then commenced this action on its own behalf and as subrogee of 1st and/or 2nd additional insured to the extent that it was required to fund the settlement in the personal injury action and to pay for 1st and/or 2nd additional insured’s defense in the personal injury action.

A dispute involving insurance coverage arose where plaintiffs claim that defendants, Insurance Companies (1st defendant and 2nd defendant), wrongly refused to acknowledge plaintiffs’ additional insureds (1st additional insured and 2nd additional insured) under certain insurance policies and failed to defend and indemnify the Home Properties in a separately commenced personal injury action.

Plaintiff, also an Insurance Company, brings this action both on its behalf and also as subrogee of the 1st and/or 2nd additional insured.

A Nassau County Personal Injury Lawyer said that plaintiffs allege in their complaint that the defendants each breached the duty of good faith and fair dealing, their fiduciary duty and willfully violated the Connecticut Unfair Insurances Practices Act and Connecticut Unfair Trade Practices Act. On these causes of action plaintiffs seek compensatory damages amounting to $1.25 million, punitive damages and attorneys' fees.

In the present case, a genuine conflict of law exists on whether the New York Law or the Connecticut law should be applied.

To determine the appropriate choice of law in a contract case, a court is required to apply the law of the state with the "most significant relationship to the transaction and the parties", under the "center of gravity" or "`grouping of contacts" test. In applying the "center of gravity" test, courts examine the following factors: [1] the place of contract; [2] the place of negotiation of the contract; [3] the place of performance; [4] the location of the subject matter of the contract; and [5] the domicile, residence, nationality, place of incorporation, and place of business of the parties. A Queens Personal Injury Lawyer said the court must focus on the contacts that are significant in the particular contract dispute. A court should also consider public policies underlying conflicting laws that are readily identifiable and reflect strong governmental interests. A liability insurance contract should be governed by the law of the State which the parties understood to be the principal location of the insured risk unless, with respect to the particular issue, some other state has a more significant relationship to the transaction and the parties. Where, however, the policies cover risks in multiple states, the state of the insured's domicile is the considered the proxy for the principal location of the insured risk.

Applying the above-mentioned legal standards, the court finds that Connecticut is the principal location of the insured risk based on the fact that the elevator company’s operations at the building located in Connecticut were insured under each policy, the personal injury action was litigated in Connecticut, and and the risks for which plaintiffs seek coverage as additional insureds arose from the elevator company’s work for the 1st additional insured and 2nd additional insured performed only at the building located in Connecticut. Moreover, although plaintiffs allege in the complaint that 1st additional insuredl's principal place of business was in Rochester, New York, plaintiffs now maintain that its principal place of business is and/or was in Hamden, Connecticut, based upon the affidavit of the Director of Risk Management for 2nd additional insured where he states that the 1st additional insured still exists, but was solely created to own the building in Hamden, Connecticut.

Accordingly, the "center of gravity" lies in Connecticut and there is no basis to find that New York has a more significant relationship to the transaction and the parties.

The defendants alternatively argue that even under Connecticut Law, the claims cannot proceed. The argument is incorrect. Civil Practice Law and Rules (CPLR) provide that every court will take judicial notice of the common law, Constitutions and public statutes of every other state. Thus, the court proceeds to consider the arguments presented regarding Connecticut common and statutory law.

Plaintiffs allege that the 2nd defendant breached the duty of good faith and fair dealing by: [1] structuring the settlement to benefit its own interests at the expense of plaintiffs; and [2] improperly and without any reasonable justification, denying coverage to the additional insureds under the policy.

Plaintiffs also allege that the 1st defendant breached the duty of good faith and fair dealing by: [1] improperly favoring one insured, the elevator company, to the detriment of its other insureds, 1st and 2nd additional insureds, by attempting to exhaust its policy by payment on behalf of the elevator company without any provision to protect the additional insured’s rights under the 1st defendant’s policy or to contribute to the settlement on their behalf; and [2] improperly and without any reasonable justification, denying coverage to the additional insured’s under the 1st defendants’ policy.

The court agrees. Plaintiffs do in fact allege that the defendants acted in bad faith.
Defendants argue that the cause of action for breach of fiduciary duty is untenable under Connecticut law. Specifically, defendants contend that no fiduciary duty can exist where the parties are business entities that engaged in an arm's length transaction.

Under Connecticut law, to find the existence of a fiduciary duty, the relationship at issue must be examined. A "fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." Integral to the existence of a fiduciary duty is that the superior position of one party is the keystone of the trust and confidence placed in that party by the other. Whether such a confidential relationship exists is usually a question for the finder of fact.

In the context of the relationship between insured and insurer, the trial courts of Connecticut have not yet recognized a fiduciary relationship, at least as it concerns first party claims. Some courts have, at least in dicta, distinguished rights between insured and insurer on first party benefits from situations dealing with third party claims. It was held that "while there are circumstances, particularly when dealing with third party claims, in which fiduciary-like duties may be placed on the insurer to benefit the insured, such situations do not arise in first party disputes between insurer and insured."

At bar, the allegations concern defendants' actions insofar as they relate to the payment of third party benefits. There is no basis in Connecticut law to rule at this time that such a claim fails as a matter of law.

Defendants' business practices and their frequency of failing to adopt and implement reasonable standards for the prompt investigation of claims for additional insured coverage "is a proper area for discovery, particularly as such information may only be in [the insurer's] possession". Although on a dispositive motion pursuant to CPLR or at trial, the burden will be on the plaintiffs to prove that the defendants frequently engaged in acts in violation of CUIPA and CUTPA, plaintiffs' burden at this point is far easier, which is to present facts that state a cause of action against the defendants. A Brooklyn Personal Injury Lawyer said the plaintiffs have easily met its burden because, at this stage, the facts are afforded every favorable inference.

On the issue of damages and attorney’s fees, under Connecticut law, plaintiffs may recover "punitive damages or damages of any nature beyond the policy limits" in a tort cause of action alleging breach of good faith and fair dealing by an insurer and for an intentional breach of a fiduciary duty. In addition, because CUIPA violations can be the basis for violations under the CUTPA, punitive damages and attorneys' fees may be awarded.

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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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A couple from New York commenced a matrimonial action on April 2000. The parties were married on September 9, 1974, currently physically separated and they never had any children. The complainant husband is an attorney whose practice consists almost exclusively of his personal injury cases. The accused wife works part time at a Home Depot store.

At the time of their marriage, the husband was a high school teacher. During the course of the marriage he attended law school, graduated in 1978 and began practice thereafter. Since 1985, he has been in a partnership with a law firm in White Plains, New York. No written partnership agreement was made.

A New York Injury Lawyer said the separated couple have stipulated on a number of issues. One of the issues includes an annual payment of the husband to the wife as maintenance until she reaches the age of 65. Agreements on division of the marital home, stock, the cars and marital debt was also reached.

The parties retained a law firm and a certified public accountant to assess the husband’s partnership interest in his practice of law. It was found that half of the net tangible asset value of the firm was assigned to the husband. The accountant also valued the husband’s law license which was obtained during the course of the marriage. The parties agreed they would take the average of the two figures for the purpose of computation. The accountant also concluded the husband’s annualized net pretax earnings as an attorney and his net base line earnings had he remained a teacher.

The major area where the parties are not in agreement concerns the valuation and the equitable distribution of the husband’s personal injury cases. A Queens Personal Injury Lawyer said that the parties agree that pending in the husband’s office at the commencement of the action were 146 personal injury cases, all in different stages of preparation. The parties also agree that the cases constitute marital property. The value of these cases is to be determined and what portion of the ultimate recovery in each is for the husband’s benefit.

The parties have agreed to submit the issue on papers. They have even agreed on a listing of the pending cases including the type of case, the retainer agreement, if there was a referral fee and so forth. The cases have been categorized by the husband as either retained and/or subject to investigation; pleadings having been prepared and/or served; bill of particulars served; request for judicial intervention filed; and cases on the trial calendar with a note of issue having been filed. It was further agreed that the cases that were already resolved and the fees received at the time of the commencement of the action would be held in a written agreement while the determination of the issue is pending.

The parties have also agreed to resolve the question of tax impacting by making a one-third adjustment on all fees recovered and any recovery will be first adjusted for any fees owed to a referring attorney. All disbursements incurred before the commencement of the action will not be part of any calculation in distributing a fee. Any disbursements incurred after commencement of the action and subject to recovery will be calculated as part of the fee.
Before the court addresses the wife’s interest in the personal injury cases, there are related issues to be addressed. One is whether there should be a downward adjustment on any recovery for the wife for overhead expenses attributable to the husband’s law firm incurred subsequent to the commencement of the divorce. The husband wants to deduct the said overhead. The wife claims that her husband is not entitled to deduct the said overhead. The court agrees with the wife.

The husband’s argument is that since the wife would be receiving a percentage of the fees obtained by the husband from contingency fee cases then she should also have to contribute towards the overhead costs that were incurred in the operation of the law office such overhead expenses which were necessary to help generate the contingency fees. The husband argues that not to do such would give the wife a greater percentage of the fees as her marital share than the husband.
First of all, the court is not satisfied with the numbers for overhead that were given to the accountant. A review of his report shows an extremely high percentage for overhead which seriously brings into question the accuracy of the expenses for a personal injury law practice. The wife’s recovery will be based on the value of the cases as of the commencement of the action and she will not get the percentage based on the full value at the end of the cases therefore she should not pay for a deduction for expenses incurred after commencement of the action.

In support of her position that the recovery should not be adjusted for overhead, the wife submitted a letter from a Financial Appraisal Services. A Brooklyn Personal Injury Lawyer said in response to the written question of should there be an adjustment for overhead expenses in the recovery of contingency fees, the appraisal services stated that one must recognize that accounts receivable, and work in process represent work that has already been done in a matter at a specific point in time. The expense of the firm in completing work to that point in time has been recognized. Allocating the amount of work in process of a contingency fee case is no different. One is assigning the fees to be recognized to the off balance sheet asset, as of a specific date. One can argue that the firm will incur expenses to collect funds however the argument has been traditionally dismissed.

It is interesting to note that the appraisal services officer treats the contingency fee cases as accounts receivable where at the date of commencement of the matrimonial the overhead has already been fully incurred by the firm. The court disagrees. The cases cannot be deemed accounts receivable because it is contingent in nature and an express value cannot be put on the cases unless and until a recovery is obtained.

Notwithstanding the disagreement, the court still cannot accept the husband’s reasoning that a set amount for overhead expenses should be deducted before the wife’s fee is determined. As stated, the court cannot accept the high percentage for overhead sought by the husband in the first place. It should be noted that even the accountant stated that some of the money was given back for personal use by the husband and his partner. There is also no clear way to determine how much overhead was actually incurred for the particular cases which are the subject of the action and how much for the general operation of the office including other matters such as real estate files. Furthermore, much of overhead expenses can be used as a business expense which can be deducted on behalf of the husband and for which the wife gets no benefit, especially since the husband will be submitting individual tax returns subsequent to the completion of the matrimonial action.

In short the court does not see the basis why the wife should have to have a reduction in the fees payable to her as a result of the expenses.

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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 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.

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A student at the City University of New York was leaving the Performing Arts Center of Queens College at 11:30 p.m. when she stepped on a broken and raised part of the stairs which caused her to trip and fall. As it turned out, the student made a mistake when she mentioned in her complaint that she tripped and fell on the dangerous defect on the third set of stairs instead of the second set of stairs. She claimed that the stairs in front of the Performing Arts Center was poorly maintained and poorly lighted. She then asks for leave of court to amend her original complaint to reflect that she tripped and fell on the third set of stairs.

The City University of New York vigorously opposed the motion claiming that her mistake in the complaint is a defective flaw which fails to comply with the requirement of the statute. Under the Court of Claims Act, claims for personal injury must state the time and the place where the claim arose, specifically stating the nature of the claim and the injuries sustained.

According to a New York Injury Lawyer, the Claims Court is now tasked to determine whether the allegations contained in the student’s complaint is sufficient to comply with the requirements of the statute.

The Court notes that the law is strict in that failure to comply with the requirement of specifically stating the ultimate facts which comprise the cause and nature of the injury as well as the specific time and place it occurred will make the complaint susceptible to dismissal for failure to properly allege a cause of action. It is a jurisdictional infirmity that cannot be repaired by amending the complaint. A complaint with a defective or non-existent cause of action cannot be remedied by amendment as one cannot amend a complaint that, in the eyes of the law, does not exist.

The Performing Arts Center of Queens College has a long and wide stairway leading from the sidewalk to the entrance of the building. The long and wide stairway is broken into three sets of stairs by wide landings but the sets of stairs are still connected as one long stairway by those wide landings.

A Queens Personal Injury Lawyer said that the student mentioned in her complaint that she fell on the broken and raised steps of the third set of stairs instead of on the second set of stairs where the only broken and raised steps were located, did she commit a fatal flaw that would cause her complaint to be dismissed?

The Court opined that identifying the specific step on the stairs where the trip and fall occurred is not required by the law. This is logical because a trip and fall may involve bouncing off of more than one step. But the Court also observed that if there are more than one set of stairs, it would be necessary to specifically state the particular set of stairs where and when the trip and fall occurred.

A Brooklyn Personal Injury Lawyer said the Court noted with approval the observation by the Court of Appeals that the guiding purpose of the requirement for definite statements on the specific place and time of the trip and fall was to enable to courts to investigate the claim and to ascertain the liability.

The Court held that absolute exactness is not required by the law. Since there is only one long stairway in front of the Queens College Performing Arts Center, and the long stairway is broken only by landings, the student’s allegation in her complaint is sufficient compliance with the requirements of the statute. Under the original wording of the complaint, it can be determined where and when the trip and fall occurred. Thus, the Court granted the student’s motion for leave to amend her complaint.

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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 worst oil spill in U.S. history was set off last year by the Deepwater Horizon disaster which claimed 11 men at sea. The tragedy exposed several weaknesses, including severely outdated limited liability laws that have protected the very players who should be claiming responsibility, according to a Brooklyn Personal Injury Lawyer.

Because the wrongful death of the 11 men occurred offshore, the corporations and its contractors were shielded by maritime laws of limited liability. According to these laws, the companies can only be sued for future wages, minus taxes and expected living expenses – not for pain and suffering and other damages commonly sued for in the case of fatal onshore activities.

Congress has been called upon to raise or completely lift the limit; it wasn’t long before Congressmen and women were being chastised for their inactivity in the affair. One champion of the victims’ families stated, “It hasn’t been changed in 20 years. It really shows you how inadequate it is. You’re in a situation where either taxpayers end up footing the bill, or injured parties do, which seems fundamentally unfair.”

The Oil Pollution Act caps the amount of damages a corporation has to pay out. Fortunately, under public pressure, some companies volunteer not to invoke those limits. This highlights the possible problem that is likely to arise again, stated a New York Personal Injury Lawyer. Another accident at sea will happen, but if the next affair is not highly publicized, the corporation at fault may then see it possible to maintain protection behind the liability limit. Without public opinion against them, companies will not feel it politically expedient to repair grievances to their full capacity; they will not make voluntarily larger settlements.

“It needs to be changed,” the father of one victim exclaims. “If all these companies can care about is money, then they need to keep in mind that when they put men at risk, that costs money too. If you can’t bring yourself to consider it for any other reason, think of it this way.”

Continue reading "One Year Later: Oil Companies Remain Shielded by Offshore Liability Limits" »

During lunch at a Texas elementary school last week, a loaded pistol dropped from the pants of a six-year-old male pupil and discharged, injuring him and two other students in the lower extremities. It is thought that one bullet or fragments of the same bullet caused all the injuries. All three children were reportedly in stable condition and were smiling and playing video games by that afternoon, according to a Brooklyn Personal Injury Lawyer.

At this time, investigators are trying to determine how the boy came into possession of a gun in order to bring it to campus without anyone knowing and stopping him. The boy’s parents have so far been unavailable for comment. Texas Child Protective Service officials planned to speak with the family within 24 hours.

The punishment for having a gun is expulsion for one year. It is unclear if that punishment is carried out in each case.

Approximately 25 kindergarteners were eating lunch when the gun discharged. As other students began coming into the cafeteria, officials at the school rerouted them back to their classrooms. The 470-student campus went into lockdown which lasted about 45 minutes.

As parents reached the school to pick up their children, they saw yellow police tape and numerous squad cars. The injured students were removed from campus via stretchers in ambulances. The school planned extra security for the following day and employed a crisis intervention team of counselors and psychologists.

The mother of one of the injured students was relieved that her five-year-old was safe. She said she didn’t feel any anger and believed in forgiveness. “I’m not upset,” she said. “I can’t explain it – probably because I’m just so happy my child is alive. That’s all I care about.” Her daughter had a minor foot injury.

The family of the other injured student reported to a New York Injury Lawyer that he suffered scratches and bruises and was already asking to return to school. “It is a sad situation that took place, but we are thankful our son is in good spirits.”

The grandparent of an uninjured student, however, insisted “This is a problem. This is a serious problem and it needs to stop.” Others invariably agree with her, and it appears that school officials followed protocol and will try to discover why this event took place and what they can do to prevent it in the future. This time, the injuries and disruption were minor; there is no guarantee next time will be the same.

Continue reading "3 Injured when Six-Year-Old Brings Gun to School " »

To keep a rival out of a talent show, five high school girls assaulted another girl, one of them beating her with a padlock inside a sock, a New York Injury Lawyer reported. "Yo, b***h. I got a lock,” allegedly the first attacker, before the assault began, according to a police source.

The 16-year-old girl with the lock and four of her friends are accused of attacking a 17-year-old student a Brooklyn High School, known for being a gifted singer. She was outside the home of her voice coach when the attack occurred. After it was all over, the victim was left with a head injury consisting of six stitches near her left ear, a cut on her face, and a bruised jaw.

“I wasn’t able to open my jaw. I wasn’t able to talk. I wasn’t able to sing,” the victim reported. She also said one of the girls attacked her “because I sang better than her… it was jealousy. It was all due to the talent show.”

The victim’s mother said that her daughter received a Facebook message the day before the attack. It said “they were going to get her and hurt her so she wouldn’t be able to sing again.”

After the attack, the talent show was canceled. Witnesses say the attack happened swiftly. The victim was outside the home of her voice coach when she was surrounded by her attackers. First the girl with the lock started, then the other four joined in.

“I could see them hitting her with something,” said one witness. She watched the whole thing from her apartment window. “She started out on the stoop, and you could tell she didn’t want to fight, but she came down and they fought her with everybody hyping it up. She was bleeding.”

The victim had a friend with her who tried to help, but she was also beaten, authorities explained in their reports. Four of the girls were arrested on the scene, while the fifth was captured a few days later.

Continue reading "Young Singer Attacked by Five Teenagers" »

A New York Injury Lawyer was quick to agree that Emilio Navaira, a Tejano Singer, was extremely neglectful to ruin his tour bus while he drove home in a drunken stage from a concert.
According to a friend and confident of the accused, the singer did some damage to the vehicles in the accident, but not nearly as much damage as his previous bass player did. It so happened that in court, the former bass player asked for a little less than $95,000, which the juries awarded him.
After the court session, both the defendant and the complaint said that they agreed with the verdict. According to the bass player, he just wanted everything to be over. He said that the guy in the accident was his friend and now he wanted to move forward.
The NY Injury Lawyer indicated that the bass player looked like he did not want to hurt his friend. He had told the jurors that he had never seen Navaira drinking while he was doing the concert. All he could remember was the brake slamming on the highway and his friend trying to control the vehicle. The Tejano Singer had to have five brain operations because of his extensive injuries.
The lawsuit between the former bass player and the Singer was settled in court. The bass player was originally asking for one million dollars and after deliberating for eight hours, the jury came back with a lesser amount that seemed to be favorably to the complainant in the end. In Brooklyn and Queens, cases like this one are handled in the same manner.

Continue reading "Singer found to be negligent" »