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.

On December 7, 2006, a bricklayer was working on a scaffold more than 20 feet off of the ground. A New York Injury Lawyer said it was late in the day and the bricklayer maintains that he needed to use the bathroom. He informed his foreman and requested permission to lower the scaffold. He had lowered the scaffold on previous occasions so that he could use the bathroom and the foreman had not had an issue with it. However, the complainant advised that on this particular date, when he asked permission to lower the scaffold, the foreman told him that it was too late in the day and that it would put them behind on the job. He told the bricklayer to use the materials basket and have the helper lower him down in it.

The materials basket is a canvas basket that is used to raise and lower tools when they are needed. The helper told the foreman that it would not be a good idea, but the foreman ignored him. The bricklayer got into the canvas basket and the helper began to lower him to the ground. A Nassau County Personal Injury Lawyer said he was lowered about one half of a building story before the ropes gave way and the basket fell two stories to the ground below. The bricklayer was wearing a safety harness that was attached to the scaffolding, but it did not stop his fall. He sustained significant injury in the fall and filed a lawsuit against the construction company and the foreman.

This lawsuit is based on the fact that the foreman used negligence in insisting that the bricklayer use the materials basket to get to the ground to go to the bathroom rather than lowering the scaffold. This is a clearly dangerous practice and one that a reasonable man would consider hazardous. The construction company foreman disagreed.

The foreman denies ever telling the bricklayer that he should use the materials basket to lower himself. He maintains that the bricklayer took it upon himself to take that action and his subsequent injury is his own fault and not the fault of the foreman who did not give him permission for such a fool hardy stunt.

The bricklayer’s wife also filed suit. Her suit alleges that she deserves compensation from the construction company because of loss of consortium. Basically, she is claiming that because her husband is injured, they are not able to continue on as man and wife. She believes that she should be compensated for that lack of consortium. A Long Island Personal Injury Lawyer said he and her husband filed a motion requesting a summary judgment of liability against the construction company because the labor laws of New York state that anyone working at an elevated height who is injured due to negligence of the company or building owner because his safety harness did not prevent his fall. He was not in violation of any orders made by his supervisor so the law says that he is entitled to summary judgment.

The owner of the construction company contends that the foreman’s request for a summary judgment should be denied because the foreman testified that he did not refuse to lower the scaffold and that he knew nothing of the bricklayer’s intentions to ride the materials basket down to the ground. They maintain that his conduct caused the accident and that he should be considered a “recalcitrant worker” as described in the code section. A recalcitrant worker is one that is aware of the necessity for using the safety harness and lines, but who refuses to use them. The company states that this is reason for dismissal of the summary judgment request made by the bricklayer.

The Supreme Court reviewed the facts of the case and determined that the foreman’s testimony in reference to the fact that the bricklayer was wearing his harness and safety line at the time of the accident undermines the contention by the company that he is a recalcitrant worker. The request for summary judgment in favor of the bricklayer was approved. The motions from the company were dismissed. The motion from the wife for compensation from lack of marital consortium is also dismissed for lack of cause.

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On October 20, 2006 at approximately 11:30 p.m., a man allegedly slipped and fell (slip and fall) at the Chalet in New York. In the Bill of Particulars, the man alleges that he slipped and fell on a wet deck that was covered with leaves and the portion of decking that the man walked upon gave way due to rot and the man’s right foot went through the decking and his left foot slipped on the leaves and he fell forward down two flights of steps.

The man alleges that the hazardous and dangerous conditions was that the two small steps exiting the restaurant created a tripping hazard for pedestrians, the threshold was steeply sloped and worn, the handrail was not usable and consisted of a wide board that was impossible to grab, and the carpet pad on the wood deck and the presence of wet leaves created a slippery surface.

The man testified at his examination-before-trial. A New York Personal Injury Lawyer said he executed a misstatement sheet on which he made various changes to his examination-before-trial transcript. He submitted an affidavit setting forth a generalized statement of the reason for the changes to the transcript.

Notably, the man never changed any of his testimony with regard to his claim that his foot went through decking, and that he slipped on wet leaves. The man only changed that portion of his original testimony wherein he denied that his accident occurred while stepping outside the door onto the deck and instead indicated that he was standing on the deck for five minutes when his foot went through the deck and then he slipped and fall on leaves.

The man seek summary judgment on the grounds that they had no notice of the alleged wet leaves and rotting wood on the upper level of its deck, and also upon the video surveillance footage depicting the specific manner in which the accident occurred. A Long Island Personal Injury Lawyer said the accused parties assert that the video footage completely contradicts the man’s claim as far as the alleged presence of a rotting deck and wet leaves causing his slip and fall.

In addition to the video surveillance tape, the accused rely upon the transcripts of testimony of the man and his wife, a dentist who knew the man as a colleague for over 20 years and the sole shareholder of the company which owns the Chalet Restaurant. At his examination-before-trial, the shareholder testified, in pertinent part, that prior to the incident no person had ever fallen in the area. Thousands of persons would have exited the upper level door to the upper level deck since the shareholder purchased the restaurant and the property. The company received no complaints about the step down. He is aware that the man is alleging to have slipped on wet leaves and fallen because of rotting wood on the deck. However, prior to the man’s accident he had never been aware of any problems with leaves being present in the area, nor any rotting wood nor discovered any such rotting on the deck since the accident up until the present. After the accident occurred, the company also never observed the presence of any rotting wood or wet leaves on the deck that could have caused the man to fall. The shareholder asserts that the foregoing is completely supported by the videotape of the accident showing the man to have fallen simply because his right leg gave out with no evidence of wet leaves and/or rotting deck having caused the man's accident.

The shareholder did not witness the man's accident. However, the whole accident was caught on infrared video maintained at the restaurant in the regular course of business, which was saved by the company after the accident and is annexed to the motion. There were numerous cameras placed in the restaurant for security purposes. The tape is digitally stored and recorded over once a month. He, however, maintained a copy of the recording of the accident. The cameras are night vision cameras with cameras recording all day on detection of motion. There was one camera specifically in the area of the accident by the exterior door.

The Chalet argues that the video footage depicting the entire accident as it occurred establishes that the man’s accident occurred as his right foot came through the doorway and down onto a mat on the deck, with the right foot then giving out thereby causing him to slip and fall. The man had undergone surgery on his hip two months prior to the accident. A Manhattan Personal Injury Lawyer said regardless of the actual cause for the man's right leg giving out, the video tape shows the man did not slip on wet leaves and he did not slip and fall because his feet went through a rotting deck.

The videotape also refutes the testimony as well as the claims made by the man, his wife and the dentist that they were caused to slip and fall on the deck as well. The dentist testified that the deck cracked and/or that there was a dip in the deck which could have caused the man to have fallen.

In opposition to the accused parties’ motion, the man argues that conflicts between the misstatement sheet changes and the original deposition testimony raise an issue of credibility that cannot be resolved on a motion for summary judgment. The man further asserts that notice of the defective condition is not a prerequisite to establish liability on behalf of a property owner as it has a non-delegable duty to maintain the premises in a reasonable safe condition.

The man also relies upon a belatedly served expert disclosure and Second Supplemental Bill of Particulars which allege new theories of negligence against the accused parties. As noted the documents were served after the Note of Issue was filed.

Although leave to amend a pleading 'shall be freely given in the absence of surprise or prejudice, the determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed. Where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discreet, circumspect, prudent and cautious.

The man’s unreasonable delay in seeking leave, as well as the absence of an excuse for the delay, warrants denial of leave to serve a Second Supplemental Bill of Particulars alleging a new theory of negligence, after the Note of Issue has been filed.

The new theory of negligence includes that the accused created a defective condition in that the subject doorway and stairway violated several sections of the Building Code of New York State, the two small steps exiting the premises created a tripping hazard for pedestrians; and a handrail was not usable and impossible to grasp.

While modern practice permits a complainant to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the man’s submission. As noted the new theory was alleged for the first time in opposition to the accused parties’ motion.

The Court addresses the merits of the accused parties’ motion for summary judgment. It is well settled that an accused who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.

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.

In view of the foregoing, the accused parties’ motion for summary judgment is denied, the motion to preclude is granted, and the man’s cross-motion for leave to serve a Second Supplemental Bill of Particulars is denied.

Public places should always be safe in every aspect. If you experienced otherwise, you can seek the services of Nassau Slip and Fall Attorneys to work hand-in-hand with Nassau Personal Injury Lawyers. Stephen Bilkis and Associates lawyers can also provide you with assistance if you lost your loved ones due to other people’s negligence through its team of Nassau Wrongful Death Attorneys.

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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In June 1998, the defendants (husband and wife) operated a day care center out of their home. The plaintiff, then approximately three years old, attended the day care center. On 30 June 1998, the plaintiff was bitten on the face by the day care center’s family dog, a pure bred labrador retriever weighing approximately 75 pounds. At an examination before trial, defendant-wife testified that the dog, who was trained by the defendants, was mainly a house dog, although the yard was fenced in and she had free rein to go where she wanted. On the day in question, there were a total of six children in the center, ranging in ages from two to four years old. At around 10:30 A.M., the children went out on the deck to play. Defendant-wife was sitting at a table inside the house approximately two feet from a sliding door to the deck, doing paperwork and going through mail and bills. Just prior to the incident, the dog walked onto the deck. The plaintiff went up to the dog, who was sitting, and "bear hugged" her around the neck, coming face-to-face with the animal. Defendant-wife testified: "I told the plaintiff to leave the dog alone. And at that, the dog moved and the plaintiff was crying." At the time, defendant-wife was approximately 10 feet from the dog and the plaintiff. When defendant-wife took the plaintiff inside to get him a glass of juice, she noticed that there was a cut and some bleeding above and below one eye of the plaintiff. Defendant-wife testified that there had been no prior incidents with the dog concerning anyone on the premises, and that, although Daisy would bark at strangers at the door, she did not growl or jump on people. Indeed, defendant-wife asserted at the time of her deposition in February 1999 that the defendants still owned the dog and that there had not been another incident.

Subsequently, a New York Injury Lawyer said the plaintiff commenced the instant action seeking to recover damages arising from strict liability and common-law negligence. He alleged, inter alia, that the dog had vicious propensities, and that the defendants had failed to provide adequate supervision.

Plaintiff moved for summary judgment on the issue of liability and to dismiss the defendants' affirmative defenses of assumption of the risk and comparative negligence.

The plaintiff argued, inter alia, that it could be determined as a matter of law that the defendants failed to provide adequate supervision, and that he was too young to have either assumed the risk of his injuries or to have been comparatively negligent.

On appeal, plaintiff does not pursue the argument that the dog had vicious propensities and that, therefore, the defendants may be held strictly liable for his injuries.

When a three-year-old child bear hugs a pet labrador retriever owned by his day care provider and the dog bites the child as the provider calls out to the child to leave the dog alone, can there be a recovery by the child in an action alleging negligence even though there is no evidence that the dog previously exhibited vicious propensities?

Indeed, there is no proof on the record that the dog possessed or demonstrated vicious propensities. However, contrary to the defendants' contention, proof of vicious propensities is not required in all cases to recover for injuries arising from a dog bite, a dog attack or an animal attack. Rather, where the conduct at issue, although not vicious, results in reasonably-foreseeable injury, the courts have recognized a right to recover for common-law negligence.
In the case at bar, the plaintiff also seeks recovery for damages based on common-law negligence, other than the theory on strict liability. An NYC Personal Injury Lawyer said that pursuant to general principles governing a negligence claim, there must be a duty owed the plaintiff by the defendant and a breach of that duty. In the oft-quoted language of a landmark case, "the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Thus, liability in negligence arises when a defendant owes a plaintiff a duty of care and is negligent in taking reasonable measures to prevent injury arising from conduct that is reasonably foreseeable. By contrast, even the most elaborate and extensive measures will not avoid strict liability for injuries arising from a dog's known vicious propensities. Here, the question is whether the action of the plaintiff, and the dog’s response, were sufficiently foreseeable to put the defendants on notice that such an encounter might be anticipated. This inquiry raises issues of fact.

The defendants, as providers of day care services, owed the plaintiff the same duty of care and supervision owed by a reasonably prudent parent under the circumstances. Further, as such, a jury might find that they are charged with the knowledge that a young child such as the plaintiff may interact with a dog in a fearless manner that befits a child's lack of capacity to fully understand the foreseeable consequences of such conduct; that is, that such conduct may be injurious or threatening to the dog and, if so, that the dog, even a docile and well-trained one, may instinctively engage in defensive action such as biting. Here, defendant-wife’s calling out to the plaintiff to leave the dog alone just before he was bitten may be found by a jury to be evidence that she was in fact aware of the possibility of such a response by the dog.

Accordingly, a Long Island Personal Injury Lawyer said the dismissal of the defendants' affirmative defenses of assumption of the risk and comparative negligence is warranted.

In sum, there are questions of fact whether the defendants breached the duty of care owed the plaintiff by failing to take reasonable measures to prevent the incident at issue and, if so, whether such a breach was a proximate cause of the damages alleged.

Accordingly, the court holds that the aforementioned issue cannot be summarily determined and that questions of fact warrant submission of the case to a jury; the order is modified; defendants’ affirmative defenses of comparative negligence and assumption of risk are dismissed.

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On 27 December 1971, a woman (the mother) underwent an abortion at a hospital during the course of which her uterus was perforated.

In June of 1973, she commenced a medical malpractice action which was ultimately settled in June of 1979 for $175,000.

On 3 June 1976, four years after the alleged malpractice and three years before it was settled, the infant plaintiff was born to the woman.

On 26 September 1978, the instant action was commenced on behalf of the infant plaintiff. A New York Injury Lawyer said it is contended that as a result of the alleged malpractice of defendants in negligently perforating the mother’s uterus, seven years prior to this lawsuit, plaintiff was born with a damaged brain.

Does a cause of action lie in favor of a child for injuries suffered as a result of a preconception tort committed against the mother?

Had the alleged negligence not occurred and the mother’s uterus not been perforated, would plaintiff have, in all likelihood, been born normal?

A Long Island Personal Injury Lawyer said the defendants' alleged negligence made the difference between life in an impaired state and life in an unimpaired state.

When faced with a novel cause of action, sentiment should be put aside and the law must establish the rules ascribing liability in a manner which avoids the drawing of artificial and arbitrary boundaries. Though at the time the mother underwent an abortion in 1971 it was foreseeable that she would again conceive and that the health of children born thereafter could be adversely affected by damage to her uterus, this foreseeability alone does not establish a duty to plaintiff on the part of defendants. A Manhattan Personal Injury Lawyer said the court has held in a number of cases that foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability.

Thus, were we to establish liability in this case, could we logically preclude liability in a case where a negligent motorist collides with another vehicle containing a female passenger who sustains a punctured uterus as a result of the accident and subsequently gives birth to a deformed child (birth injury or birth injury accident)? Unlimited hypotheses accompanied by staggering implications are manifest. The perimeters of liability although a proper legislative concern, in cases such as these, cannot be judicially established in a reasonable and practical manner.

The recognition of a cause of action under the circumstances of this case would have the undesirable impact of encouraging the practice of "defensive medicine". A physician faced with the alternative of saving a patient's life by administering a treatment involving the possibility of adverse consequences to later conceived offspring of that patient would, if exposed to liability of the magnitude considered in this case, undoubtedly be inclined to advise against the treatment rather than risk the possibility of having to recompense a child born with a handicap. Society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger.

While the temptation is always great to provide a form of relief to one who has suffered, it is well established that the law cannot provide a remedy for every injury incurred. In defining the common law, it is the court's duty to consider the consequences of recognizing a novel cause of action and to strike the delicate balance between the competing policy considerations which arise whenever tort liability is sought to be extended beyond traditional bounds.

The recognition of a cause of action under the circumstances would require the extension of traditional tort concepts beyond manageable bounds.

Accordingly, the order of the Appellate Division is affirmed and the complaint is dismissed.

Losing a loved one is a sad phase in one’s life. But when a loved one lives with deformities, it is far more heart-breaking. And if the deformities were for causes attributable to the negligence of another, the emotional pain is just unimaginable and could be too much for anyone to handle.
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The appellant in this case was Mamie R. Jemison, while the respondent was Grantley E. Crichlow.

CPLR 215(1)

A key factor in the case is that CPLR 215(1) states that when an action is brought against a sheriff as a result of an action or lack of an action performed in the official capacity of that office, that the action must start within a year of the accrual of the cause of that action (or omission of fulfillment of his duty). A New York Injury Lawyer said there is an exception provided for within CPLR 215(1), but it does not apply in this case. The plaintiffs in this case assert that Grantley E. Crichlow is not covered by the terms of CPLR 215(1) or two reasons. The assertion is that it does not apply to City Marshals. The second is that the year-long statute of limitations is not applicable when allegations of malevolent misconduct or allegations of intentional misconduct are the cause of the initiation of the action.

City Marshals and Maliciousness

Kolomensky V. Wiener shows that the court has recently determined that City Marshals are covered under the terms of CPLR 215(1). This resulted in the first protest being immediately rejected as regards the applicability of CPLR 215(1). The second argument was also rejected. CPLR 215(1) is worded plainly, and no interpretation provides for an exemption based on perceived maliciousness of a given action.

The Complaint

The allegations of the plaintiffs states that on April 11, 1983, they were evicted from an apartment. Allegedly, Crichlow, who has a license as a process server and who serves as a City Marshal, forcibly evicted them from a residence at West 31st Street, Brooklyn New York. This eviction was performed pursuant to a Kings County Civil Court judgment entered upon the default of the plaintiffs. A Long Island Personal Injury Lawyer said the complaint alleges that Crichlow falsely stated in a filing with the court that a previous dispossess notice had been served to the tenants of the apartment. This omission was declared to be committed willfully and with the full knowledge of Crichlow according to the terms of the original complaint. Allegations of negligence in the performance of his duty were also levied against Crichlow.

History

The following events lead up to the presently discussed action.

1. Plaintiff's sought financial compensation and damages for their eviction, while also claiming other issues such as trespassing, intentional infliction of emotional distress, inference with contractual relations, constitutional right violations, etc. etc.
2. Crichlow moved that the complaint be dismissed due to the elapsed time in regards to the Statute of Limitations and because no cause of action had been stated.
3. The plaintiff's attorney opposes that motion was filed to obtain an extension when the end of three years outlined in the Statue of Limitations was about to elapse.
4. It was found that all of the plaintiff's causes for action should be prevented as a result of the Statute of Limitations.

Results

A Manhattan Personal Injury Lawyer said as a result of the applicable Statutes of Limitations as determined by the court, all the causes of action originally filed by the plaintiff were dismissed except one. The original order which dismissed the ninth cause of action is modified by the deletion of that provision. The replacement provision stated that Crichlow's motion denying that cause of action be denied. The first complaint was eliminated as a result of a one-year statute of limitations, the rest as result of a three-year statute of limitations. The order was modified so that the plaintiff's claim that their constitutional rights had been violated was reinstated.

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On 2 January 2004, infant-plaintiff’s mother first presented to defendant-doctor for prenatal care. The defendant-doctor determined that the mother’s estimated delivery date was 10 July 2004.
On 25 February 2004, an ultrasound was performed, which revealed that the fetus' arithmetic ultrasound age was identical to its gestational age, as well as average measurements for weight, head size, abdominal circumference, and femur length.

A New York Injury Lawyer said on 24 April 2004, a second sonogram was again normal in all respects.

On 30 June 2004, a third and final sonogram was performed and revealed an arithmetic ultrasound age of thirty-five weeks and four days; the gestational age was thirty-eight weeks and five days. The sonogram also revealed that the ratio of head circumference to abdominal circumference was 1.09, outside the normal range of 0.92 to 1.05. The estimated fetal weight was 2482 grams.

On 4 July 2004, the mother reported to defendant-hospital after her membranes ruptured and was placed on a fetal heart monitor. At approximately 3:00 p.m., she was examined by a resident physician. A Long Island Personal Injury Lawyer said the physician reported that the infant-plaintiffs head was at the ischial spines or at the "0 station." According to the examination before trial ("EBT") testimony, she was not involved in the mother’s care beyond the 3:00 p.m. examination. However defendant-doctor testified that, at approximately 10:40 p.m., the resident physician called him and "asked what a cord prolapse felt like."1 After receiving the call, defendant-doctor rushed to the mother’s room and examined her. Defendant-doctor confirmed that the umbilical cord had passed through the mother’s cervix and into her vagina before the baby, which presents a risk of compressing the umbilical cord and cutting off the baby's oxygen and blood supply. Defendant-doctor ordered an emergency Cesarian section ("C-section") and the mother arrived in the operating room at 10:54 p.m. In the operating room, the infant's head was noted to be above the ischial spines at the "-2 station," but in his EBT testimony, defendant-doctor claimed that the he probably erroraneously made that notation.

According to the mother’s EBT testimony, once in the operating room, a nurse placed her finger into her vagina. This was done in order to push the infants head up and relieve any pressure on the umbilical cord. At approximately 11:09 p.m., the infant-plaintiff was delivered via C-section with normal Apgar scores. The infant-plaintiffs cord blood gases were also normal.

In April 2006, infant-plaintiff was diagnosed with congenital motor nystagmus, an impairment of vision. In August 2006, infant-plaintiff, who was 21 months old at the time, exhibited developmental delays. In February 2007, his pediatrician believed that he had a developmental disorder and possibly autism. In March 2007, when infant-plaintiff was 2 years and 8 months old, his pediatrician noted that infant-plaintiff had pervasive developmental disorder ("PDD"). On 17 May 2007, infant-plaintiff underwent an MR1 of the brain, which was unremarkable.

On or about 27 August 2007, an action for medical malpractice was filed by plaintiffs, infant-plaintiff and mother, which centers on the prenatal care administered to and the delivery of the infant-plaintiff in June and July 2004. Plaintiffs allege that the infant-plaintiff suffered from hypoxic-ischemic brain injury during the prenatal and delivery period (birth injury or birth injury accident), which caused cognitive and behavioral deficits.

On 30 October 2008, after the depositions were complete, infant-plaintiff underwent an independent medical examination ("IME") where it was concluded that infant-plaintiff demonstrated delays mostly in fine motor and in his personal-social skills, and mild or no delays in his gross motor and language skills.

Both defendants now, separately, seek an order granting them summary judgment and dismissing the action.

The party moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged." A Manhattan Personal Injury Lawyer said to satisfy their burden, defendants must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. If the movant makes a prima facie showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Specifically, in a medical malpractice action, a plaintiff opposing a summary judgment motion must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiff’s injuries. In order to meet the required burden, the plaintiff must submit an affidavit from a medical doctor attesting that the defendant departed from accepted medical practice and that the departure was the proximate cause of the injuries alleged. The plaintiff's expert opinion testimony must also be founded in facts in the record, not merely consisting of general or conclusory statements of negligence, in order to rebut defendant's prima facie showing. On the other hand, a defendant hospital that is seeking summary judgment in a medical malpractice action may also argue that the alleged malpractice was committed by a private attending physician or by hospital staff under the "directions of the attending physician." In such circumstances, the "hospital is sheltered from liability." However, a hospital "may be held concurrently liable with a private physician for the independent negligence of its medical staff."
Defendant-doctor relies on the affirmations of two physicians. While defendant-hospital argues that it is not liable for malpractice, if any, because its staff acted under the direction of defendant-doctor, a private attending physician. It also relies on the affirmations of three physicians.

In opposition, plaintiffs rely on the affirmations of three physicians.

In the first affirmation, the medical expert maintains that plaintiff first exhibited signs of distress on 30 June 2004, when the third sonogram was taken. The sonogram manifested that the estimated fetal weight was below normal and sets forth that it was below the fifth percentile. He notes that the ratio of head circumference to abdominal circumference was also below normal. The medical expert states that these characteristics clearly indicate the presence of intrauterine growth restriction ("IUOR"); that "hypoxia caused by placental insufficiency is one of the most significant problems found in infants with IUOR"; therefore, the infant-plaintiff should have been delivered immediately. The medical expert maintains that it was a deviation from the standard of care to postpone delivery until spontaneous birth. As to the care rendered at NYU on 4 July 2004 prior to the delivery, the medical expert notes that the infant-plaintiff was at "0 station" after the resident physician’s examination at approximately 3 p.m. and then at the "-2 station" in the operating room at approximately 10:54 p.m. the medical expert asserts that the fact that the infant-plaintiffs head went from a low position to a high position is evidence that "outside force acted upon it." The medical expert maintains that this force was from a pelvic examination administered by the resident physician sometime before the umbilical cord prolapse. He asserts that this newly created space allowed the cord to prolapse and was the result of a deviation from the standard of care. The medical expert further asserts that hospital staff should have immediately elevated the infant-plaintiff’s head once an umbilical cord prolapse was diagnosed in order to take pressure off the umbilical cord. He notes that the mother testified that a nurse did not do so until fourteen (14) minutes after the cord prolapse, which was a deviation from the standard of care. The medical expert also maintains that between 10:40 p.m. and 10:55 p.m., a series of deep variable decelerations were apparent on the fetal monitoring strips, which indicated that the umbilical cord was being compressed. With respect to the normal Apgar scores and normal gases measurements, the medical expert asserts that hypoxic brain injury can occur without any "grossly obvious clinical signs in the neonatal period." He maintains that Apgar scores only measure catasphrophic losses of oxygenation.
In the second affirmation, the medical expert maintains that infant-plaintiff has sensory motor integration deficits and fine motor delay that are the result of brain injury and are not related to his vision impairment.

In the third affirmation, the medical expert notes that infant-plaintiff has significant cognitive and development delays, but she asserts that he is not suffering from PDD. The medical expert maintains that the infant-plaintiffs delays and deficits are consistent with hypoxic-ischemic brain injury.

In view of the above, as to plaintiffs' allegations of medical malpractice, the court finds that defendants have met their prima facie burden. Their experts' affirmations eliminate material allegations of malpractice and causation by sufficiently detailing the infant-plaintiffs prenatal and postnatal course as normal and by describing how the infant-plaintiffs current condition is unrelated to brain injury. Nonetheless, plaintiffs' experts have adequately offered an alternative theory as to the cause of infant-plaintiff’s undisputed developmental delays.
Hence, summary judgment is denied.

On the issue of vicarious liability for medical malpractice of defendant-hospital, plaintiffs' expert has pointed to several facts that support plaintiffs' contention that a defendant-hospital’s staff member performed a negligent pelvic examination that proximately caused the infant-plaintiffs injury. Taking this allegation to be true, there is no indication that the manner in which the pelvic examination was conducted was directed by defendant-doctorz. It is an independent act of alleged negligence.

Hence, summary judgment is not warranted.

On defendants' complaints in their replies about the factual inferences drawn by plaintiffs' experts concerning the credibility of evidence, it must be noted that it is not the court's function on a motion for summary judgment to assess such credibility.

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A 35-year old woman came to an obstetrician asking him to care for her during her pregnancy. A New York Injury Lawyer said the obstetrician noted the advanced age of the mother and suggested that the woman undergo an amniocentesis to rule out any genetic abnormalities in the child. On July 30, 1980, when the woman was into her 16th week of pregnancy, the obstetrician performed the amniocentesis.
The amniotic fluid sample could not be processed by the laboratory because the fluid contained an excessive amount of blood. Weeks later during a routing pre-natal check-up, the obstetrician could not detect the fetal heartbeat.

The woman then went to another obstetrician who told her that her fetus died while in the womb. On September 6, 1980, the lady was induced to go into labor in order to expel the dead fetus. When the fetus was expelled, the second obstetrician noted that the body of the fetus had three puncture marks with blood clots. The second obstetrician then told the woman that it was his opinion that the puncture wounds on her baby was caused by the amniocentesis performed by the first obstetrician.

The woman filed a case for medical malpractice against the first obstetrician alleging that his negligence in performing the amniocentesis caused her baby’s death. The woman however did not allege any physical injury sustained by her other than the pain and suffering sustained by the fetus. She sought to recover for her pain, severe disappointment, anxiety, despondency, bitterness and suffering.

The obstetrician moved for summary judgment alleging that the fetus was not considered under the law as a “person” capable of suing until it is born alive. Since the fetus was born dead only at 16 weeks, it had no personal capacity to sue. The woman also did not allege any particular physical pain she suffered, such that any consequent emotional pain and suffering she may have had cannot be the basis for recovery of damages.

The trial court granted the motion for summary judgment and dismissed the complaint. A Long Island Personal Injury Lawyer said the woman then appealed to the Supreme Court. The only question she presents before the Court is whether or not the summary judgment dismissing her complaint was proper.

The Court ruled that although they sympathize with the woman, the law is clear that she cannot recover damages for her emotional distress if she fails to allege any physical injury directly sustained by her as a result of the obstetrician’s medical malpractice or negligence.

A Manhattan Personal Injury Lawyer said that although it is clear that the obstetrician committed an injury to the fetus, the fetus was not yet a “person” in contemplation of law that can sue for the pain and injury it sustained. The sixteen-week old fetus has no personality or existence apart from its mother but it is not a body organ or a member of its mother such that injury to the fetus should be considered as injury to the mother. The mother’s pain and suffering at the loss of her baby and at its stillbirth, while real, is not the same as the pain and suffering of the fetus itself. Thus, the loss of the woman’s child while extremely emotionally devastated is not a legal injury for which damages can be recovered. The obstetrician owed a legal duty to care for the pregnant mother but had not legal duty to care for the fetus, thus, the woman should have alleged direct physical pain suffered by her and not just by her fetus.

The Court upheld the trial court’s dismissal of the complaint.

A New York City Medical Malpractice Lawyer has the duty to allege negligence on the obstetrician’s part or, to allege that the obstetrician committed a medical malpractice by deviating from accepted medical practice. A New York Medical Malpractice Attorney has also to allege that the negligence or medical malpractice of the doctor directly resulted injury to the pregnant woman in his care. At Stephen Bilkis and Associates, their NY Medical Malpractice lawyers will assist you by making sure you have a viable cause of action for negligence or medical malpractice. Call Stephen Bilkis and Associates at any of their offices in the New York area.

A woman is facing a case against her for causing the death of a child which was found in a plastic bag by the police inside her house. The child found was said to be given birth recently by the woman. An indictment is filed and she is being charged with murder in the second degree, man slaughter in the first and second degree, and endangering the welfare of a child.

A New York Injury Lawyer said that the defendant woman filed for the re-inspection by the court of the grand jury minutes to determine the admissibility of evidence since it was acquired through the violation of the physician-patient privileged communication and search warrant was properly obtained.

The judged, in an oral decision, agreed to the re-inspection of the minutes. This will determine if there is a probable cause to issue a search warrant of the defendant’s house, whether the evidence presented will be sufficient to support the charge of manslaughter in the first degree, which requires the “intent to cause an injury”, and lastly, whether the indictment should be dismissed.

Based on the summary of evidence before the grand jury, one medical technician, in her testimony, she received a call that the daughter of the caller was bleeding. When she arrived at the house, she went upstairs and found the daughter which was the defendant in the case. The defendant was found in the toilet, and she was sweating, clammy, and there were also blood clots found on the floor. The medical technician asked the defendant if she was pregnant or recently pregnant, which was answered in the negative. The defendant was then brought to the hospital.

Another testimony was given by a police officer. He said, he was responding to an order made by his supervisor telling him that the hospital called that they have a woman who, apparently, gave birth but the baby was missing. When the police officer reached the house of the defendant, they were greeted by the defendant’s sister. They asked her if the baby was with her, she said that she did not know anything about the baby. The police officers persistently asked her if the baby was inside the house, she only said that there were plastic bags in the back of the house. A Long Island Personal Injury Lawyer said they found a female baby inside a black garbage bag which was also inside a shopping bag. The baby was wrapped in a bloody towel and she still had her umbilical cord attached. The baby was taken to the hospital by the ambulance lifeless.

A doctor, who was an expert in forensic pathology, made an autopsy to the baby. Based on the test, the baby was recently born, fully-formed, was born alive and had her umbilical cord attached to her. The baby girl was found be live long enough to breathe because of the bubbles found in her intestines. The doctor believed that the cause of death to be “asphyxia and hypothermia due to environmental exposure to cold temperature” and the manner of death to be homicide. In her opinion and based on a reasonable degree of medical certainty, her conclusion is to be in line with that the baby was placed inside a plastic bag and was left to die outside in the cold for several hours.

The defendant questions the admissibility of the evidence. She believes that information she disclosed to the medical technician and doctor were both under the physician-patient privileged communications and cannot be used to warrant the search of her house. The fruits obtained from the illegal search should be inadmissible in court.

The court ruled that the privilege does not apply to this case because it involves communication made to a medical technician who is not a physician or is employed by a physician.
On the other hand, the privilege is not limited to direct communications between the physician and patient. Those information which they have acquired in attending the patient in their professional capacity, and which was necessary to enable them to act in their capacity are also covered by this privilege. The form in which the information may be stored whether in the memory of the doctor or in medical records is not important, as long as it is protected by under the physician-patient communication. However, the because of the defendant’s condition in the hospital, a normal person would have readily perceived that she has recently given birth, and the privilege will not apply.

Based on a constitutional doctrine, police can enter the premises without a search warrant to protect individuals in distress, to assist victims of crimes that have just occurred, or to investigate suspicious signs of impending danger. The search of her house was done after she was treated and found out that she gave birth. Emergency exists because the baby was missing. The exception applies to the case and evidence acquired will be admissible in criminal prosecution.

A Manhattan Personal Injury Lawyer said it has been judicially recognized that the privilege communications between physicians and patients must be overcome in instances where silence would place an innocent person’s life in jeopardy and that the disclosure of the confidential information made under these circumstances may later be used against the patient in a criminal proceedings. This is called the “Tarasoff exception.” Based on this, the privilege can be overcome provided that the patient demonstrates clear and present danger to a third party. In this case, the baby’s life was in danger. The disclosure made by the medical technician and hospital is covered by the Tarasoff exception and it overcomes the privilege communication, making the evidence acquired admissible.

The evidence acquired showed that the defendant was indeed recently given birth and denied to the medical technician that she had done so, also withheld from the medical technician the information of the whereabouts of her baby, who was found by the police officers outside her house on a cold night several hours after, wrapped in bloody towels and inside a garbage bag, and was left to die. The evidence supports a rational inference that the defendant recklessly engaged in conduct which created a grave risk of serious physical injury or death to her baby and thereby caused the baby’s death. This sustains the decision charging her of murder in the second degree.

Manslaughter counts in the first and second degree were also sustained based on the rational inference that could be drawn from the acts of the defendant, with intent to cause physical injury to the baby, recklessly engaged in conduct creating grave risk of serious physical injury to the baby and thereby caused the baby’s death.

Finally, the defendant’s charge on endangering the welfare of a child was also sustained based on that it can be inferred that the defendant knowingly acted in a manner likely to be injurious to the physical welfare of the baby.

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Plaintiff consulted defendant, a gynecologist, because she had not had a menstrual period for over three months and her "home pregnancy tests" were negative. A New York Injury Lawyer said that after a visual examination and with no blood or urine analysis, defendant informed her that she was not pregnant. Without explaining any of the attendant risks, he prescribed the hormonal drug Provera. When plaintiff had the prescription filled, she became aware--from the warning on the label and advice given by the pharmacist--that the drug was known to pose a serious risk of producing congenital defects in the child if ingested during early pregnancy. Relying on the defendant’s advice that she was not pregnant, plaintiff took the drug as prescribed. When menstruation did not occur, she consulted another gynecologist who ascertained from laboratory tests that she was indeed pregnant and cautioned her about the drug's potentially harmful effects on a fetus in early stages. Fearing that these harmful effects had occurred, plaintiff and her husband elected to have the pregnancy terminated.

Plaintiff alleges that defendants' negligence forced her either to risk having a congenitally defective child or to submit to an abortion in violation of her "personal, moral and religious convictions". She seeks damages for her physical, psychological, and emotional injuries resulting from the abortion and from having to decide whether to undergo it.

The court rules that the complaint and affidavits sufficiently define a cause of action in medical malpractice for the physical and emotional injuries suffered by plaintiff as a result of defendants' negligence in rendering medical services to plaintiff, and, thereby, breaching their duty of care owed directly to her.

Plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on the fetus. The breach of duty claimed by plaintiff is the defendant’s failure to perform a pregnancy test before advising her that she was not pregnant and before prescribing a drug with potentially harmful side effects if taken during early pregnancy. It is the erroneous advice that she was not pregnant and not an injury to a third person as in which, plaintiff asserts, led to the actions directly causing her injuries: her ingestion of the dangerous drug and her decision to terminate the pregnancy to avoid the drug's harmful effects. It is not an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it or a claim for damages based on plaintiff's emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss.

A Long Island Personal Injury Lawyer said the general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability. Thus, a reasonable attempt to avoid the danger created by a defendant's conduct--an action that should certainly be considered a "normal consequence" of that conduct--cannot amount to a superseding act which breaks the chain of causation.

A Manhattan Personal Injury Lawyer said applying these rules here and assuming the truth of the allegations in the complaint, it is apparent that plaintiff's "choice" to have an abortion cannot be said to be, as a matter of law, a superseding cause.

As the complaint alleges, the physician's negligent diagnosis and treatment were the precipitating causes of all that followed; but for the gynecologist's conduct, plaintiff would not have been in the position of having to choose between two objectionable alternatives: undergo an abortion or risk having a baby with serious birth defects (birth injury or birth injury accident). That plaintiff made the very choice forced upon her by defendants' negligence cannot insulate them from legal responsibility for such conduct.

The case presents a malpractice action based on medical advice which put plaintiff in the position of having to make decisions and take actions which caused her physical and emotional injuries.

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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 plaintiffs in the case are Elaine Klau and Marvin L. Klau. The defendant in the case is Belair Building, LLC. The third party plaintiff is Belair Building, LLC. The third party defendants are National Grid and LIPA.

Plaintiff Argument

In August of the year 2009, the plaintiff, Elaine Klau, was walking on the public sidewalk located in front of 325 Shore Road, in Long Beach, New York. As she headed towards the east, her foot struck a “blob” of concrete that was located directly on top of a metal gas valve cap. When her foot struck the sidewalk she lost her balance and fell to the ground. She allegedly sustained personal injuries from the trip and fall.

The property that is adjacent to the sidewalk where the plaintiff fell is owned by the defendant, Belair Building LLC. The third party defendant, National Grid, owns the sidewalk gas valve and is responsible for maintenance of the gas valve that caused the plaintiff to fall.

A New York Injury Lawyer says the plaintiff is suing Belair Building LLC for the personal injuries she sustained during her fall. The verified complaint filed by the plaintiff refers to the Long Beach City Charter 256, which states that any landowner that has property that fronts any traveled road, street, highway, public alley, square, or lane, is responsible for maintaining the curbs, gutters, and sidewalks of the area.

Defendant Argument

Belair answered the verified complaint and denied the material allegations and offered various affirmative defenses. Belair then instituted a third party action against both National Grid and LIPA.

The defendant, Belair, moves for a summary judgment to dismiss the allegations made against them by the plaintiff. The defendant argues that it was the gas cap that caused the plaintiff to fall and that this is not part of the sidewalk that is subject to the City Charter Provision referenced by the plaintiff. A Long Island Personal Injury Lawyer said the defendant states that the defect was exclusively created by National Grid and therefore they are not responsible for maintenance of that area. National Grid has failed to file any papers in connection to the motion made by Belair.

Case Discussion

It is settled that a landlord may be held liable for injuries that are caused by a defect in the sidewalk that is adjacent to their property. This is only the case if the landlord created the potentially dangerous situation, made negligent repairs to the area, or caused the dangerous area to occur by special use of the area, or violated a statute that imposes liability to the property owner. The defendant must present prima facie verifying that they did not cause the dangerous situation or have knowledge that it existed.

Case Results

In this case, it is found that Belair Building LLC has proven prima facie in the case and that in fact, the potentially hazardous situation was caused by National Grid. A Nassau County Family Lawyer said the Court has also considered the plaintiffs contentions in the case and has determined that they are not sufficient to defeat the motion for a summary judgment as made by Belair.

The Court rules in favor of the defendant and grants a summary judgment which dismisses the complaints against the company as well as any cross claims or counter claims that have been interposed against them.

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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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Kings County Personal Injury 122

The plaintiff in this case is Andrzej Drozdzal. The defendants in the case are Suzanne and Ruth Semel and Spoon Incorporated. The judge overseeing the case is Laura Lee Jacobson.

About the Case

A Manhattan Personal Injury Lawyer said the defendants of the case, Ruth Semel and Suzanne Semel are seeking a summary judgment to dismiss the complaint against them and all of the cross claims made against them by the plaintiff. The co-defendant of the case, Spoon Incorporated, is also seeking a summary judgment in the case to dismiss the claim and cross claims made against them by the plaintiff. The plaintiff, seeks a cross motion to amend his bill of particulars in the case.

Case History

The case is a personal injury action that stems from a slip and fall accident that happened on the first of November in 2005. The accident occurred at 5001 13th Avenue in Brooklyn, New York, where the plaintiff slipped and fell down a staircase located inside the Spoons Restaurant. The location was owned by the Semels at the time of the incident and occupied by the Spoons Restaurant through a lease agreement. The plaintiff worked for Ossie’s Fish Market and had the responsibility of delivering fish to the restaurant.

Plaintiff Argument

In the testimony submitted by the plaintiff, he states that he was delivering fish to the restaurant when he fell down the stairs that led to the basement. He also states that he noticed the steps were wet when he started down them, but at this point it was too late to stop. He proceeded to fall backwards and slide down the steps. A New York Injury Lawyer said he plaintiff claimed that there was a wet spot on the center of each step.

A Long Island Personal Injury Lawyer said in the cross motion of the plaintiff he states that after the findings by Ainso, an expert engineer, he should be allowed to amend his bill of particulars. The report filed by Ainso clearly shows that the stairs in question do not meet the New York City Building Code.

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Defendants Argument

The defendant, the Semels, motion for summary judgment is based on the fact that they are out of possession landlords and there is no evidence of a design defect or significant structural damage. The plaintiffs argue that it was a “wet and slippery” staircase that caused the plaintiff to fall according to his bill of particulars. The Semels also state that they did not know about the wet stairs and did not view the stairs prior to the fall.

Spoon Restaurant seeks a summary motion as well. Spoons declares that they had no notice of the defective condition and that they did not create the defective condition. They also claim that the claims made by the plaintive are merely speculative.

Case Results

In a slip and fall case the defendant must prove prima facie to the fact that they did not create the potentially hazardous situation. In this case, the defendants, the Semels, are out of possession landlords and because of this did not have notice of the situation. The motion for summary judgment is granted to the Semels.

In the case of Spoons Restaurant, the defendant cannot prove that the potentially hazardous situation was not created by one of their employees. For this reason, prima facie in the case is not met and the summary judgment is denied.

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The plaintiffs in the case are China Rabalais, an infant and her mother Kysha Jones and Kysha Jones as an individual. The defendant in the case is Starrett City, Inc.

Case History

The defendant in the case has filed a motion on April 12, 2010, seeking a summary judgment in their favor to dismiss the complaint made against them.

A New York Injury Lawyer said this action was started on June 28, 2008 when the plaintiff, China Rabalais and Kysha Jones filed a summons and verified complaint with the clerk’s office of Kings County. The defendant provided a verified answer to the complaint on July 2, 2008.

Plaintiff Argument

The verified complaint issued by the plaintiff contains 25 allegations of fact and two causes of action. The main complaint against the defendant alleges that the company owns the multiple dwelling building located at 1440 Freeport Loop, Kings County, New York. The plaintiffs resided in this building in apartment 4E. The first cause of action in the allegations is for personal damages the plaintiff received on February 24, when a defective shower knob in her apartment caused injury to her hand based on negligence by the defendant. The second cause of action is for derivative injuries.

The plaintiffs oppose the motion for a summary judgment with affirmation from three annexed exhibits as well as their counsel. The first exhibit is a photograph of the shower knob that is allegedly defective. The second and third exhibits are the affidavits of Jones and Rabalais.

Defendant argument

The defendant has issued motion papers that consist of nine exhibits labeled A through I. Exhibit A is the summons and verified complaint. Exhibit B is the verified answer provided by Starrett City. Exhibit C is the defendants demand for a bill of particulars. Exhibit D is the verified bill of particulars. Exhibit E is a copy of Rabalais’s deposition testimony. Exhibit F is a copy of Jone’s deposition statement. Exhibit G is a copy of Gonzalez, a superintendent for the defendant, deposition. Exhibit H is a copy of Josapha Gonzalez’s affidavit. Exhibit I is a copy of the affidavit given by an employee of the main office of Starrett City’s Maintenance Office, Margaret Maxwell.

Case Results

A Long Island Personal Injury Lawyer said that in a personal injury case such as this, the defendant must prove prima facie to the fact that they did not cause the defect that resulted in the injury and that they did not have sufficient notice that a possibly hazardous condition existed.

In this case Starrett City proves prima facie showing that they did not cause or create the defect through the affidavit of superintendant Josapha Gonzalez who states that on January 27, 2006, before the plaintiffs moved into the location, he personally inspected the apartment and found the faucets on the showers to be in working order. A Staten Island Personal Injury Lawyer said that Starrett City further points out that they were not notified that the problem existed, proving prima facie in this case as well.

Based on the evidence provided and the fact that Starrett City has proven prima facie in the case, the Court rules in favor of the defendant and grants the motion for summary judgment. The case is dismissed.

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Petitioner was born prematurely at about 31-weeks gestation at defendant hospital. He is alleging that because of defendant Hospital’s failure to properly diagnose the amniotic infection of his mother and failure to properly monitor and intervene with the labor and delivery process, he incurred development delay, cerebral palsy, and spastic diplegia. Petitioner filed to claim damages but defendant Hospital is argues that the action has already expired, and petitioner cannot claim anymore.

A New York Injury Lawyer said that according to General Municipal Law, the Legislature enacted a protocol for suing a public corporation a notice of claim should be first filed. Under the same law, it is provided that it is the discretion of the court to extend the time, which a petitioner can serve a notice of claim. However, the extension should not exceed the time limit for the commencement of the action against public corporation. The law requires that the notice should be served 90 days after the claim arises. The extension of time should consider whether it involves an infant, if the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, when the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and lastly, if the delay would substantially prejudice the municipality in maintaining its defense on the merits. A Manhattan personal injury lawyer said tha based on jurisprudence, the court shall consider other relevant facts and circumstances such as whether the claimant was an infant, mentally, or physically incapacitated, or died before the time limited for service of the notice of claim. If the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative. Also, whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted, and lastly, whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

Medical records show that petitioner was prematurely born. He was approximately 31-weeks gestation, low birth weight and in need of immediate oxygen resuscitation. A Long Island Personal Injury Lawyer said he was on oxygen for five days after his birth and was then transferred to the Neonatal Intensive Care Unit or NICU and for a month, he remained hospitalized. ased on the medical records, there is no showing of substantial prejudice and there since there is no injury, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim.

However, the claim of the mother is dismissed on the grounds that the infancy toll is purely personal to the infant petitioner. This does not extend to the mother, thus there is no cause of action. The mother then filed leave to amend a bill of particulars. According to jurisprudence, amendment of a bill of particulars is ordinarily freely given in the absence of prejudice or surprise resulting directly from the delay. The court granted this leave to amend bill of particulars, provided that they would include additional allegations in support of the theory of the medical malpractice set forth in the prior proceedings.

Defendant hospital submits the affirmation of one doctor who is board certified in obstetrics and gynecology. According to the doctor, the defendant hospital followed good and accepted standards of medical practice with respect to the treatment of the infant plaintiff and that defendant hospital did not contribute to or directly caused the birth injury.

To challenge this, plaintiff also submitted affirmation of doctors, who is board certified in pediatric neurology and another is board certified in obstetrics and gynecology. Both of the doctors assert that defendant Hospital failed to observe and departed from good and accepted medical practice which lead to contribute to the infant’s brain injury, the consequences of which include cerebral palsy. These affirmations made by the doctors raise questions of fact involving the medical malpractice and the proximate cause as to whether the infant plaintiff suffered injury due to the treatment he received from defendant Hospital.

The ruling of the court, based on this was to grant the amendment of bill of particulars and plaintiffs’ notice of claim to be timely served.

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The plaintiff in the case is Bierzo Construction Corporation, LLC. The Defendant in the case is The Everest National Insurance Company. The third party plaintiff in the case is The Everest National Insurance Company and the third party defendants are Port-Land Construction Corporation and Utica First Insurance Company.

Case History

A New York Injury Lawyer explained that this is an insurance action, which comes from the underlying action from a fatal accident that occurred on October 7, 2006. The fatal accident occurred at a construction site when Erasmo Sanchez Lopez was struck by a brick while working at the site.

The plaintiff, a defendant in an underlying action, commenced this action against Everest National Insurance, seeking the declaration that the insurance company is obligated to defend and indemnify the plaintiff in the underlying action against them.

Everest National Insurance has issued a third party action against the employer of Mr. Lopez, Port-Land Construction Corporation and the insurer for the company, Utica First Insurance Company. Everest National Insurance seeks a declaration that Utica First Insurance Company is deemed to owe indemnification and defense to the plaintiff and additionally Utica First Insurance is obligated to indemnify and defend the plaintiff in the underlying action based on the fact that the plaintiff was an additionally insured under a policy that was issued by Utica to Port-Land.

Case Facts

The plaintiff had been hired to perform work at 765 Amsterdam Avenue in New York, New York and obtained a Commercial General Liability Insurance Policy from the defendant, Everest National Insurance.

A sub contract with Port-Land was entered on August 25, 2006. Port-Land obtained an additional insurance policy from Utica First Insurance Company. The insurance broker for Port-Land issued a Certificate of Insurance on September 2, 2006, which reflected the plaintiff as an additional insured under the policy that was issued through Utica First Insurance Company. Port-Land’s employee, Mr. Lopez, was injured in a construction accident on October 7, 2006.

On January 29, 2007, a representative from UTC Risk Management Services informed Port-Land of the underlying action and enclosed a copy of the summons and the complaint in the underlying action.

Utica First Insurance Company requested a copy of the contract between the plaintiff and Port-Land. A Manhattan Personal Injury Lawyer said they received a copy of both the contract and the Certificate of Insurance on March 14, 2007. Utica disclaimed coverage to Port-Land on March 27, 2007. This disclaimer was based on the exclusions for bodily injuries sustained by Port-Land employees and the exclusion for liabilities assumed under the contract or agreement.

Case Results

Based on the evidence that has been provided by the plaintiff, defendant, and third party plaintiff and defendants, the court has ordered the following verdicts:

A Long Island Personal Injury Lawyer said the motion by Utica pursuant to New York Insurance Law 3420 to dismiss the third party claim and all the cross claims made against them is granted.

The request by Utica that the Court treat its motion for summary judgment as one and declare they are not responsible to indemnify Port-Land in the third-party action or defend and indemnify the plaintiff in the underlying action is granted.

Utica is ordered to serve a copy of this decision and notice of entry to all parties within 20 days of entry.

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The respondent in the case is the Allstate Insurance Company. According to a Long Island Personal Injury Lawyer, the respondent is represented by Charles F. Brady for counsel, from the Benjamin Purvin law firm located in Lake Success. The appellant in the case is Carlos Casanova. The appellant is represented by Kenneth Popper for counsel, from the Joseph Greene law firm located in Rego Park.

The case is being heard in the Second Department of the Supreme Court in the Appellate Division. The judges overseeing the case are Kunzeman, J.P., Weinstein, Kooper, and Balletta, JJ.

Court Memorandum

The appeal issued in this case is from the Kings County Supreme Court, overseen by Justice Levine. The appeal is dated the 8th of February, 1988 and seeks to stay the arbitration of an uninsured motorist claim. The order grants the petition to staying the arbitration until the Court decides the outcome of a personal injury case titled, Casanova versus New York Telephone.

Court Orders

The Court now orders that the order is changed, on the law. The new order will delete the phrase that states “the court in Casanova versus New York Telephone” to be substituted by the phrase “this court.” The changes affirm the order with the costs of the order being the responsibility of the appellant. A New York Injury Lawyer said the matter is now submitted to the Kings County Supreme Court to proceed further.

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Considerations of the Court

In a case such as this, the petitioner insurer is not part of the personal injury action that has been commenced by the appellant. The personal injury action pertains to the owner and driver of the vehicle that was involved in the car accident with the appellant. The owner of the vehicle in question is New York Telephone.

In this case the res judicata doctrine or the doctrine of collateral estoppels can be invoked to bind the company to a determination therein. This is in reference to the case of American Motorists Insurance Company versus the North Country Motors.

In this case there is a genuine issue of threshold and the appropriate course of action is to stay arbitration pending the resolution of the issue at a preliminary trial or at an evidentiary hearing. The evidentiary hearing will be held in the Kings County Supreme Court.

A Manhattan Personal Injury Lawyer said that according to the evidence in the case, this Court finds that the stay of arbitration is issued and is pending the non permissive use issue in the personal injury case. The non permissive use issue can be brought up at the evidentiary hearing. The evidentiary hearing will be held in the Kings County Supreme Court. At this time the driver of the vehicle and the self-insured/owner of the vehicle in question may be subpoenaed to testify in the case.

A woman, her husband and their child sued a global drug manufacturer, a physician and a hospital for medical malpractice. In the first action, the complainants allege six causes of action seeking a total of $30,000,000.00 in damages, claiming that during her pregnancy, the woman ingested a drug manufactured and distributed by the pharmaceutical company. The drug was administered to her by the accused physician and resulted to her child’s delivery by Caesarean section at the accused hospital. The child was born without limbs. The complainants allege the drug manufacturer with negligent manufacture, testing, advertising, drug safety representation and improper usage instructions. They further allege that the manufacturer knew or should have known that the drug is unsafe and unfit for use due to its dangerous side effects, contraindications and insufficient testing. In addition, the complainants allege breach of warranties, violation of statutory duties and strict tort liability. The claims against the physician and the hospital are based on professional care negligence, diagnosis, treatment, surgery and after care rendered to the child.

Parenthetically, A New York Injury Lawyer said that the drug is a progesterone hormone medicine intended to prevent miscarriage. The record before the court shows that the woman had three pregnancies. Her first pregnancy was terminated in the birth of a stillborn child at the accused hospital, another was terminated by miscarriage and her third pregnancy gave birth to the complainant child. The woman received injections of the said drug weekly for five months and monthly thereafter until her child’s birth. The injections were administered by the accused physician.

The second action was commenced by the woman and her husband against the same accused parties. The complaint in the second action alleges ten causes of action against the accused parties, nine of which are the subject of the accused parties’ motions to dismiss. A Long Island Personal Injury Lawyer he first cause of action is negligence and the allegations are similar to the allegations of negligence against the accused parties in the first action. The second cause of action by the husband against the drug manufacturer asserts the same allegations of injuries as his wife, except for the phrase fear for her own well- being and health, which appears in the first cause. The husband claims damages as well for medical expenses of his daughter, his wife and himself. The third cause of action on behalf of both complainants against the drug manufacturer and the physician is based on breach of warranties in that it is alleged that the accused parties represented and warranted that the drug was safe and fit for use as a therapeutic drug, of merchantable quality, without side effects that may cause danger to life and the limb. It is claimed that the representations and warranties were false.

The fourth and fifth causes of action by the woman and her husband are for violation of statutory duties and strict tort liability, respectively, against the drug manufacturer and the physician. A Queens Personal Injury Lawyer said the sixth cause of action by the woman is against the physician and the hospital for professional negligence in the care, diagnosis, treatment, surgery, discharge and aftercare of the woman, including the use of the drug by the physician and the hospital's failure to discover and treat the woman’s condition caused by the physician.

The seventh cause of action by the husband against the physician and the hospital is for the professional negligence alleged in the sixth cause, the birth of his daughter without limbs, resulting in the same injuries and damages also alleged in the second cause. The eighth and ninth causes of action by the couple are against all the accused. Each complainant is claiming derivatively for the loss of services of the other and seeking $1,000,000.00. In the ninth cause, the husband also claims loss for medical expenses for his wife. The tenth cause of action by the couple is against the physician and the hospital for failure to inform the woman of the dangers in medical treatment and injections of the drug and failure to receive informed consent.
Essentially, the second action of the complainants are seeking damages for claimed injuries to their nervous systems and emotional damage, personality changes and extreme mental anguish occasioned by the birth of their daughter without limbs and with other serious and permanent injuries and congenital defects due to the woman’s ingestion of the drug during her pregnancy.

The accused parties argue that no such claims may be asserted and New York has repeatedly denied recovery for mental and emotional injuries suffered by another regardless of the relationship. Accordingly, the drug manufacturer seeks the dismissal of the complainant’s first, second, third, fourth, fifth, eighth and ninth causes of action of the second action. The physician, by cross-motion, seeks the dismissal of the third, fourth, fifth, sixth, seventh, eighth and ninth causes of action. The accused parties move on the grounds of legal insufficiency and that the causes of action do not state a cause of action as a matter of law.

On a motion to dismiss, the court must assume the truth of the allegations contained in the causes of action under attack. The pleader is entitled to every favorable inference that might be drawn from the pleading. Thus, the negligence, breach of warranties and other violations of duty owed to the complainants are all assumed, as well as their claims of damage resulting therefrom.

Each of the parents sought recovery for the pain, suffering and mental anguish incident to the delivery of the child and also that caused by the birth of their child in an impaired condition. The Special Term court dismissed the individual claims of the parents for mental anguish resulting from the birth of a child in an impaired condition.

Turning to the instant case, where the harm is more direct, the court is persuaded that the parents have pleaded valid causes of action, which are hereby sustained. As was to be expected, the court has now been presented with a pleading which takes us one giant step further along the path towards judicial recognition of the need to permit recovery in these tragic cases. A questionable principle, denying recovery for emotional injuries to a mother-bystander to an accident involving her child, can have no reasonable application to the facts as presented.

The woman and her husband are not bystanders on the situation. As alleged, it was as the direct result of the numerous injections of the drug administered by the physician to the mother during her pregnancy that made her gave birth to a deformed child. Such condition of the child is direct harm to the complainants caused by the negligence of and breach of duty of the accused parties owed to the woman, her husband and their child. The harm was not birth injury or as a result of birth but while the fetus was developing in the mother's womb. Furthermore, the woman has alleged fear for her own well-being and health as a result of her ingestion of the drug. If the injections of the drug were the direct and proximate cause of the birth injury of the child, the court will permit both the woman and her husband to prove whatever other injuries it may have caused or produced, as a natural consequence of the wrongful act. The accused parties’ motions are denied in all respects.

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The complaint of this action sets forth causes of action sounding in medical malpractice and lack of informed consent wherein the woman alleges that from January 16, 2003 through May 12, 2004, the accused hospital and her attending gynecologist undertook to treat her for certain gynecological complaints and during that care and treatment. She also alleges that her attending gynecologist departed from good and accepted standards of medical care and failed to inform her of the reasonably foreseeable risks, benefits and alternatives to the treatment proposed and rendered. She further claims that her attending gynecologist failed to obtain an informed consent, causing her to sustain personal injury including sterility, total abdominal hysterectomy and removal of both ovaries and both fallopian tubes.

The attending gynecologist and the hospital move for summary judgment to dismiss the complaint on the basis that the surgery performed was warranted and performed properly and that proper informed consent was given to the woman.

To grant summary judgment it must clearly appear that no material and issue capable of trial of fact is presented. The gynecologist and the hospital have the initial burden of proving entitlement to summary judgment. Failure to make such requires denial of the motion, regardless of the sufficiency of the opposing papers. A New York Injury Lawyer said that once such proof has been offered, the burden then shifts to the woman. In order to defeat the motion for summary judgment, the woman must submit evidence in admissible form and must show facts sufficient to require a trial of any issue of fact. The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established.

In support of the motion, the attending gynecologist and the hospital have submitted an attorney's affirmation, copies of the pleadings and answer, bill of particulars and supplemental bill of particulars, IRS records, medical records of a university hospital dated May 21, 2001, medical records of a memorial hospital dated March 4, 2000, and a physician’s copies of transcripts of the examinations of the woman, and testimonies of the woman’s friend, and the affirmation of the attending gynecologist’s expert.

A Long Island Personal Injury Probate Lawyer said that in opposing the motion, the woman has submitted an attorney's affirmation, her various medical and operative records, a copy of the transcript of the examination of her attending gynecologist and the affirmation of the woman’s medical expert.
The woman testified that she was due to deliver on July 17, 1975 and she has never been married. She has a history of interstitial cystitis, polycystic kidney disease and endometriosis. She fifteen years old when she was diagnose with endometriosis by a physician who performed a biopsy procedure from the university hospital and was treated in Manhattan by a obstetrician gynecologist. Two surgeries were performed by laparoscope for endometriosis and cysts and she was placed on prescribed with medication but developed allergic reactions and was then placed on birth control pills. She was then treated by another physician for about a year and a half but could not remember the doctor's name. During that time, she had another laparoscopic procedure performed at the university hospital for endometriosis and she was placed on medication to which she reacted. She was also undergoing treatment with another physician who also performed a laparoscopic examination and laser treatment for pelvic endometriosis and scar tissue. Additionally, she presented to the emergency rooms of various hospitals due to heavy bleeding and pain. She was treated next by another physician who also performed laser treatment at the university hospital for endometriosis. The procedure made her period lighter and less painful for about four to five months. She had two miscarriages and when she was in her late twenties, she was diagnosed with polycystic kidney disease. Thereafter, she began treatment with her attending gynecologist.

On her first visit with her attending gynecologist, the woman states she advised him that she had been trying to conceive for four months but her pregnancy test was negative. Thereafter, she was admitted by her attending gynecologist in a hospital for about a week to treat an infection. A Manhattan Personal Injury Lawyer said the attending gynecologist called a urology consult and she was diagnosed with interstitial cystitis. Her next visit with her attending gynecologist was for a painful and heavy period. He referred her to the reproductive specialist for fertility issues. She testified she was advised by the reproductive specialist that she could have children, but not with her current partner who had a low sperm count. Thereafter, she stated that her attending gynecologist told her it was time to consider having a hysterectomy as that was her only cure for the endometriosis. He explained that a hysterectomy would give her a better life with no more periods although she could have some hot Hashes and a few night sweats. Her attending gynecologist also gave her the name of an allergist to see about desensitizing her to some of the medication she had previously reacted to and used in the treatment of endometriosis. She did not see the allergist but returned and had a conversation with her attending gynecologist about having the hysterectomy, which was thereafter scheduled. Just before she was administered anesthesia, she was advised that tubing would be placed in her ureters so they would not be cut during surgery. After surgery she woke up crying and felt something was wrong. A week later, she was in pain on her right side and she was still bleeding, but was advised that she would heal slowly. She also was experiencing hot flashes, she couldn't sleep and her bones were hurting. She continued to bleed for a month or more and was given medication for hormone replacement. She developed problems urinating and was diagnosed with interstitial cystitis due to hydro-distention. She was still experiencing pain in her right side and had vaginal bleeding. She testified that her attending gynecologist told her to see a counselor and that he was not ordering any tests and that there was nothing wrong with her.

She then saw another doctor who examined her and found a large mass on her right side and referred her for an evaluation of her kidneys. The physician advised her that she had polycystic kidneys and performed surgery. The woman’s the tests revealed that part of her ovary was left inside her body at the time the hysterectomy was performed. The ovary was filled with blood, which was why she had so much pain when the estrogen patch was removed. She was recommended to see a doctor in Manhattan.

The Manhattan doctor ordered a CAT scan and performed laser surgery for endometriosis and scar tissue removal and recommended her to another doctor due to her inability to urinate since the hysterectomy and for treatment of a bladder infection. She was also referred to another doctor for her bloody bowel movement. She testified that the Manhattan doctor advised her that she did not need the hysterectomy and that her attending gynecologist only took out the organs but left the disease behind. The Manhattan doctor further states that the disease would only continue and that she should have only had a good cleaning instead of the hysterectomy.
A friend of the complainant testified to the effect of her experiences in accompanying the woman to the various treating physicians, and the pain and problems encountered by her. The accused parties’ expert has set forth in his affirmation that he is licensed to practice medicine and is board certified in obstetrics and gynecology. It is his opinion based upon a reasonable degree of medical certainty that the attending gynecologist and the hospital did not depart from accepted standards of care and practice and did not proximately cause any harm to the complainant.

The woman’s expert claims with a reasonable degree of medical certainty that the attending gynecologist departed from accepted standards of medical care when he performed a total abdominal hysterectomy and removal of both ovaries and fallopian tubes. These departures are the proximate cause of injury to the woman. The woman’s expert sets forth the physiology of endometriosis and states that while endometriosis can cause chronic pelvic pain, there are many additional gynecologic conditions that may be the source of chronic pain, and that other diseases, such as irritable bowel syndrome and interstitial cystitis can also cause pelvic pain. Psychological factors may contribute to the pain as well as the production of adhesions pulling on normal tissue. When the woman visited the attending gynecologist, she thought she might be pregnant and miscarrying, but was not pregnant. Two weeks later, she had severe left lower back pain, complaints strongly suggestive of kidney problems, and was sent to the hospital for admission and evaluation. The pelvic CT scan showed multiple cysts scattered throughout the liver, a left ovarian cyst, and bilateral medullary sponge kidneys. She was treated with antibiotics and discharged.

The woman’s expert opines that the attending gynecologist departed from the accepted standards of care by adopting a diagnostic bias by adopting the patient's history of endometriosis as the cause of her pain and stopped there instead of investigating the other possible causes of the pain.

The woman’s expert further opines that the attending gynecologist departed from the standard of care by not providing her with adequate medical information that the surgery may not resolve her chronic pelvic pain; and that her pain could be caused or contributed to by other conditions or adhesions can cause pain or worsen her condition. The woman’s expert sets forth that sterilization to treat pain in a woman of child-bearing years is a surgery of last resort, and definitive surgical treatment is reserved for patients for whom future fertility is not a consideration, and that the attending gynecologist failed to discuss with the woman the psychological impact of removal of both ovaries, her cervix and uterus while she was still considering the possibility of pregnancy, and further failed to refer her to a therapist regarding the possible emotional consequence to sterilization.

The woman’s expert further opines that the surgical pathology report documents do not support the attending gynecologist’s representation that the woman had severe and extensive stage IV endometriosis as it reveals only modest endometriosis on one fallopian tube and equivocates as to whether there was a cyst on the ovary. Based on the report, the attending gynecologist should not have removed all the organs as it was not indicated.

Based upon the foregoing, it is determined that there are factual issues raised by as experts' conflicting opinions concerning whether or not the total abdominal hysterectomy and removal of both ovaries and both fallopian tubes was indicated; whether other causes of the pain were ruled out prior to the surgery; whether proper informed consent was given to the plaintiff of child-bearing years who was trying to conceive; whether failing to remove the entire right ovary caused or contributed to her pain and injury; whether differential diagnoses were made prior to surgery; and whether or not the accused parties departed from accepted standards of care in the care and treatment of the woman, and if those departures were the proximate cause of her claimed injuries. The motion is granted.

When faced with medical condition, we entrust our safety and our life to our doctors. If a medical professional caused you pain and suffering, feel free to call the offices of Stephen Bilkis and Associates and speak with our legal team. We will provide you with legal guidance and a free consultation.

A child was born at a public hospital in New York on September 5, 2000. He was repeatedly brought to the same public hospital for his routine well-baby check-ups. At his six-month check-up, on March 21, 2001, he was not given the routine blood test required to screen for lead poisoning. He continued to go for routine well-baby check-ups at the public hospital. He came in a few times for ear infections, diarrhea, decreased appetite, stomach pain, decrease and a broken arm.

In March 2001, the infant changed residences with his parents. The apartment they moved into had peeling paint. It is the mother’s contention that the child was exposed to the lead in the peeling paint at their new apartment beginning at this time.

A New York Injury Lawyer said the first ever blood test screening for blood lead levels was first performed on the child only on August 14, 2002. At this time, the blood lead of the child was just 6 micrograms per deciliter. The mother was not told that this result could mean that her baby had been exposed to lead. The mother was not told that exposure to lead would cause cognitive impairment in her child.

The lead blood poisoning of the child was not diagnosed until September 9, 2003 when he was already 3 years old. He was hospitalized until September 17, 2003 to receive chelation therapy. The mother consulted three different lawyers. She intended to sue the owners of the apartment to recover damages for the lead poisoning of her baby due to the peeling paint in the apartment which contained lead. A Long Island Personal Injury Lawyer said one of the lawyers she consulted took the case because the owner of the apartment did not have any insurance. None of the lawyers ever informed her that she had a cause of action against the public hospital for medical malpractice.

The baby boy continued to go to the public hospital for follow-up-check-ups and routine well-baby check-ups from 2003 until March 2006.

In the meantime, on June 8, 2005, the parents finally found lawyers who told them that they had a cause of action for medical malpractice against the public hospital. The doctors first served a claim against the public hospital on February 6, 2006. On July 21, 2006, the public hospital examined the hospital records in their possession and deposed the mother. On September 28, 2006 the mother finally filed a medical malpractice case against the public hospital and served summons and a copy of the complaint on the public hospital on October 2, 2006.

The mother claims that the public hospital’s failure to perform the routine blood test for blood lead levels when the baby was 6 months old, when he was a year old, and when he was two years old resulted in the prolonged and undiagnosed exposure of their baby to lead. A Manhattan Personal Injury Lawyer said this lead poisoned their child and the lead poisoning caused his brain injury, learning disabilities, speech disorders, hyperactivity, attention deficit and developmental delay. For this, the mother claims damages.

The hospital claims that the complaint is barred by the Statute of Limitations. The law provides that actions for medical malpractice must be initiated within two years and six months from the time the medical malpractice or the last treatment of the illness, injury or condition complained of.

It was the hospital’s contention that they continued to treat the child until March 2006. They claim that the continues treatment should count only from the time that the lead poisoning was discovered in September 2003 but that it cannot count until March 2001 when the child turned 6 months. In effect, the hospital was asking the Court to dismiss that part of the complaint that alleged medical malpractice in failing to test the child from March 2001 until August 2002. They claim that if they had committed medical malpractice, only that which may have occurred after September 2003 should be considered.

The Court found that prior to September 9, 2003 there was no evidence that the child had lead poisoning. His treatments and visits to the public hospital were for routine well-baby check-ups. The lead poisoning was diagnosed only on September 9, 2003. After this date, the child began continuous treatment for the lead poisoning. Thus, the notice to the public hospital should be deemed effective only beginning September 9, 2003.

Despite this finding, the Court still made the late notice apply to any medical malpractice beginning on March 22, 2001 until September 9, 2003 because the medical malpractice case include injury to a child who is mentally and physically incapacitated to look out for its own interests.

Skilled lawyers not only need to prove negligence and deviation from accepted medical malpractice, they also need to file timely notices of claim if the party being sued is a public hospital. The attorneys from Stephen Bilkis and Associates are ready and willing to assist you in filing a notice of claim. They are also willing to assess the facts of your case to see if you have a viable cause of action for medical malpractice. Call Stephen Bilkis and Associates today, speak with any of their legal team and begin the process to ensure you are compensated for valid legal claims you may have.

A woman who was pregnant first saw an obstetrician on January 2, 2004 for prenatal care. Two ultrasounds were performed on February 25, 2004 and again on April 21, 2004. These ultrasounds showed that the baby was growing normally. The third ultrasound on June 30, 2004 showed that the growth rate of the fetus was not the same. The ratio of the size of the head with the girth of the child around the abdomen was not within normal range.

On July 4, 2004, the mother’s water broke. She had a normal labor. She was hooked up to a fetal monitor and no signs of fetal distress were noted. While she was in labor, the umbilical cord of her baby was noted to be squeezed. The doctor ordered an emergency cesarean section.

A New York Injury Lawyer said when the baby was born, it cried spontaneously. His Apgar scores were normal. A sample of the blood from the umbilical cord showed that the gases in the blood were normal.

When the baby was transferred to the neonatal nursery, he nursed well and showed healthy color and muscle tone. There were no seizures and no other complications. Four days later, the baby went home with his mother.

The baby was generally healthy and he progressed well during his first year. A Long Island Personal Injury Lawyer said that in November 2005, the child suffered an eye condition. The pediatrician ordered a magnetic resonance imaging (MRI) test of the child’s brain and the results yielded a finding that the child had autism. In May 2007, the child had another MRI and the results were normal. The diagnosis of autism or pervasive developmental disorder remained.

The mother then brought a suit for negligence and medical malpractice against the obstetrician who gave her prenatal care and who delivered her baby. It was the mother’s contention that the doctor was negligent and that during his treatment and care of her while she was pregnant, the doctor deviated from accepted medical practice and this caused her prolapsed umbilical cord: the umbilical cord was squeezed by the baby’s head in the birth canal and caused the cord to come out ahead of the baby. The squeezing of the umbilical cord, according to the mother, caused the baby to have a low heart rate and low blood flow while he was lodged in the birth canal during labor and this caused him to develop autism.

The obstetrician and the hospital filed a motion for summary judgment alleging that the complaint should be dismissed for failure of the mother to prove any negligence or medical malpractice during her prenatal care and during her delivery. The doctors also argued that there is absolutely no evidence anywhere that the mother or her baby suffered lack of oxygen at all during the delivery. The only complication of the prolapsed umbilical cord cannot and does not prove any negligence or medical malpractice. The umbilical cord gases taken immediately after the delivery does not show that the baby suffered from lack of oxygen at any time of the labor or delivery. The tracings of the fetal heart monitor did not show any sign of fetal distress such as low heart rate or low blood flow that would support a conclusion that the child suffered from lack of oxygen in his brain at any time during the delivery.

There is also no sound evidence in medical knowledge that autism is caused by low blood flow or low blood oxygen while the baby is being delivered. A Staten Island Personal Injury Lawyer said there is yet no satisfactory medical explanation as to what causes autism in a child.

The trial court granted the motion for summary judgment and the mother appealed the dismissal of the complaint. She appealed the dismissal to the Supreme Court. The only issue raised is whether or not the complaint was properly dismissed.

The Court has held that in a motion for summary judgment, the doctor has to give preliminary proof that there is no evidence of negligence or medical malpractice. If the doctor succeeds in showing that, then the burden shifts to the mother to prove that there are still material issues of fact that have to be tried before a jury.

The plaintiff has failed to raise any issue of material fact which still needs to be tried before a jury and the Court upheld the dismissal.

A lawyer has the burden of presenting facts that would show negligence on the part of the doctor. They also have the burden of presenting facts that show that the doctor being sued deviated from accepted medical procedures. They also must show that the negligence or the medical malpractice was the proximate cause of the injury sustained by the mother or the child or both. At Stephen Bilkis and Associates, their legal team can sit with you to sift through facts to make sure that your complaint is sufficient. Call Stephen Bilkis and Associates today and schedule a free consultation.

A woman filed for medical malpractice action wherein she alleges that the accused parties negligently departed from good and accepted standards of medical/obstetrical care and treatment and failed to give her informed consent during her admission to the University Hospital relating to her pregnancy, labor and delivery of her infant. It is further claimed that the accused parties failed to provide the infant with proper medical care and treatment and otherwise departed from good and accepted standards of care, causing the infant to suffer serious and severe birth injury. It is claimed in the verified bill of particulars that the infant suffered iatrogenic prematurity, brain injury, static encephalopathy, cerebral palsy, ataxia, global developmental delays, respiratory distress syndrome, persistent pulmonary hypertension, chronic respiratory disorder, respiratory disease syndrome, high bilirubin blood level, stomach reflux, pronated lower extremities, reactive airway disease, cognitive impairment and delays, communicative impairment and delays, difficulty seeing with his left eye, pervasive development disorder, autistic spectrum disorder, loss of enjoyment of life, social-emotional developmental delay, and impaired earning capacity. It is claimed that the infant has been caused to require early intervention services, physical therapy, occupational therapy, speech therapy, and may require custodial care, medical care including therapies and equipment and special residential accommodations and modifications.

It is noted that a demand of discontinuance was filed with the Court and the accused parties are moving for summary judgment to dismiss the complaint asserted against them on the basis that they bear no liability in the action.

A New York Injury Lawyer said that in support of motion, the accused parties have submitted an attorney's affirmation, affidavits, copies of the summons and complaint, the moving accused parties’ answers, the woman’s verified bill of particulars, uncertified copy of the memorial hospital record, transcripts of the examinations before trial, certified and illegible copy of hospital record and an uncertified copy of the University Hospital record.

In support of the cross-motion, the accused parties have submitted an attorney's affirmation and a doctor’s affirmations, copies of the summons and complaint, answers of the moving accused parties, the woman’s bill of particulars, a copy of the University Hospital medical record for the woman, and the transcripts of the examination of the woman.

It is noted in the university hospital record that the woman was admitted with diagnosis of premature labor. She had prior confidential pregnancy termination and was noted to be on her 33rd week of pregnancy. The infant was estimated to be about five pounds. She complained of feeling pulling in her upper abdomen followed by rupture of the membranes with clear yellow-tinged fluid. Fetal movement was then reported fine and there was no vaginal bleeding. She had been seen at the Hospital where she was ruled/in for rupture of the membranes. She was given medication and was transported to the University Hospital. Upon admission, the fetal heart rate was noted to be 130's to 140's. On October 12, 1997, the nurse's note showed that a family member alerted the nursing staff that the woman was in the bathroom with the umbilical cord hanging out. One nurse placed her hand up the vaginal track to relieve pressure on the cord and another nurse called the doctor. A Long Island Personal Injury Lawyer said the woman was transferred to the labor and delivery room in a knee/chest position and an emergent caesarean section was performed by the attending gynecologist. General anesthesia was administered by an anesthesiologist. The birth report indicates that the woman delivered a male infant.

The woman testified that she saw the gynecologist for prenatal care and she was at home with her sister-in-law when her water broke. She called up her doctor and did not waste time in going to the hospital. Her gynecologist examined her and had her transferred to the university hospital since the prior hospital has no neonatal intensive care unit. Upon arrival at the university hospital, she was seen by a female doctor, and then she was transferred to labor and delivery, where she was seen by a male doctor. A sonogram was performed. The catheter which was inserted at the prior hospital was removed. She was advised she could use the bathroom and was assisted by the nurse when she first used it, and thereafter was permitted to use it without assistance. Another sonogram was performed because she was cramping. On October 12th, she felt something when she was wiping herself when she went to the bathroom and saw blood. She thought it was the baby coming out. Her sister-in-law went for help which took about five minutes. A nurse came and went to get further assistance and the nurse returned with a stretcher. She was still on the toilet so they told her to get on the stretcher and the nurse inserted her hand to hold the baby's head up from the cord. She was taken to the operating room and three days later, she was told that her baby had lung problems, was intubated and her baby was critical.

A university hospital doctor claims that he had no independent recollection of the woman but remembered the care and delivery and conversations with her. The gynecologist attending on that date clinically supervised the doctor and taught him in the care and treatment of obstetrical patients. He was responsible for pre and post-partum patients admitted to the service of her attending physician. When he began his shift on October 12th, the gynecologist and the resident were outgoing. A Weschester County Personal Injury Lawyer said the doctor testified that after he was notified, the woman has prolapse the umbilical cord and he saw her immediately and accompanied her to the operating room where she was prepped for an emergency caesarean section.

A hospital employee testified at her examination before trial that she was an employee of the university hospital from 1997 to 1999. She is as an attending physician in the division of maternal-fetal medicine and is licensed to practice medicine in the State and is board certified in obstetrics and gynecology. She was present for the delivery of the woman on October 12, 1997 as she was the attending covering labor and delivery from 7 a.m. on October 12th through 7 am October 13th but she had no recollection of the woman. She was also supervising residents for inpatients under the service wherein they discussed patients and made a plan of management. The attending physicians were residents in 1997. She had a sign-out meeting with one of the attending physician when she came on duty. A physician who assisted also testified that she could not remember if she made the incision or if the resident did, but it was custom and practice to have the resident make the incision and that she supervised him. A physician testified at his examination before trial that he was an attending generalist anesthesiologist on staff at the university hospital. The supervising anesthesiologist was supervising the physician with the anesthesia for the woman. He had no independent memory of the woman. On October 12, 1997, he was assigned as the attending anesthesiologist for patients needing anesthesia service in the obstetric suite. The anesthesia prepared by him and indicates that the woman understood and agreed to proceed with general anesthesia for a caesarian prolapsed. He stated the section was urgent and had to be performed as soon as was possible. Under the circumstances, his conversation with the patient would have been very brief, asking if she had any medical problems, took any medications, had any allergies. He would have explained to her that he was going to be giving her general anesthesia to deliver her baby. In the case, due to the urgency of the situation, general anesthesia would have been the only option. It would have taken about one to two minutes to position her on the table in a supine position with a left lateral tilt for fetal consideration and to optimize the perfusion of blood flow to the fetus. The anesthesia start time was 5:16 for a rapid sequence induction. The infant was delivered at 5:21 p.m.

The requisite elements of proof in a medical malpractice action are deviation or departure from accepted practice, and evidence that such departure was a proximate cause of injury or damage. To prove a legitimate case of medical malpractice, a complainant must establish that the accused parties’ negligence was a substantial factor in producing the alleged injury. Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the injury. In a medical malpractice action, the moving parties’ papers must set forth everything that the accused does during the treatment of the patient and indicate that the treatment is not the proximate cause of the patient's complaints. An accused meets this burden by establishing that there was no duty of care breached to the patient.

Turning to motion, the accused seeks summary judgment dismissing the complaint against them. The affirmation of defendants' expert has been submitted. Based upon the foregoing, the physicians have demonstrated legitimate complaint privilege to summary dismissal of the complaint as asserted against each of them. It has been established that, as a resident, each was working under the supervision and direction of a supervising attending physician and did not exercise independent medical judgment in their care and treatment of the woman.
A resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor's directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene. A private physician may be held vicariously liable for conduct of a resident physician where the resident is under the direct supervision and control of the private physician at the time of the conduct; the key is whether the resident exercises independent medical judgment. Here, the record supports that the moving parties were each working under the supervision and control of their respective attending physician and only acted within the scope relating to what care and treatment was approved by the attendees. The complainants, who have not opposed the motion, have not raised a factual issue to preclude summary judgment dismissing the complaint. Accordingly, the motion is hereby granted and the complaint asserted against the moving party is dismissed with prejudice.

Based upon the foregoing, the court finds that the resident physician have demonstrated legitimate entitlement to summary judgment do dismiss the complaint on the issue that they did not depart from good and accepted standards of medical care and that they did not proximately cause any of the injuries which it is claimed that the infant suffers from. The complainants have not opposed the motion and therefore have failed to raise a factual issue to preclude summary judgment.

A skilled lawyer can help you find the proper lawsuit to explore when you are a victim of malpractice. The legal team at Stephen Bilkis and Associates can also provide legal assistance when injuries are obtained.

An unmarried woman got pregnant. She discussed the pregnancy with her boyfriend and they determined that they were unable to care for and rear a child at this time. The woman decided to have an abortion. She went to an advertised abortion clinic. She was asked to fill up forms and wait until a doctor can see her. In the meantime, a nurse took her blood pressure and her medical history. She was also asked to pay in cash for the abortion procedure.

When the doctor was available, the unmarried woman was brought to an examining room and was examined by the doctor. The doctor explained how the abortion procedure would be performed and informed her that she would experience cramping. She was told to take Tylenol for the pain and to come in for a follow-up after two weeks. The doctor then performed the procedure on her. After the procedure, the nurse injected her with RhoGAM because she was Rh-negative. She was charged $25 dollars for the injection. The unmarried lady went home and took Tylenol for her cramps. A New York Injury Lawyer said the cramps continued and she just continued taking Tylenol. She decided to return for a follow-up check-up at the abortion clinic but there was a snow storm on the day of her appointment and so she was unable to go to the clinic.

The abortion clinic received a pathology report which suggested that the unmarried woman was still pregnant and the abortion procedure was unsuccessful. They did not call or inform the unmarried lady. They did not tell her to come in for another abortion as the first one was unsuccessful.

The lady was at work when she felt extreme pain. She asked her boyfriend to bring her to a hospital. While in the waiting room of the emergency room of the hospital, she experienced a pressure in her abdomen. She went to the bathroom and she felt something fall out of her. In the toilet bowl, she saw a four and a half inch fetus and much blood. She started screaming. Medical personnel came to get her from the toilet stall.

The fetus was still attached to the umbilical cord and the placenta was still inside the unmarried lady’s uterus. A Long Island Personal Injury Lawyer said the medical personnel delivered the placenta and cleaned out her uterus. She was in the hospital for two days.

The lady suffered post-traumatic depression, nightmares and sleeplessness. She became withdrawn and refused to resume sexual relations with men for fear that she would again get pregnant.

She sued the abortion clinic for negligence and medical malpractice for the unsuccessful abortion, for failing to inform her of the unsuccessful abortion which she alleged to have caused her extreme pain and emotional distress. She also claimed that she was psychologically traumatized when she miscarried and saw the fetus.

At the trial court stage, the abortion clinic appeared but later, their lawyers withdrew their appearance and they did not participate. The doctors defaulted and did not even file an answer. After the trial, a Westchester County Personal Injury Lawyer said the jury awarded the unmarried woman $135,000.00 in damages.

The abortion clinic and the doctors ask for a new trial. On the appeal level, the court was constrained to reduce the award to $125,000. The abortion clinic and the doctors appealed from this reduced award. They claim that the complaint should be dismissed.

The only question before the Court is whether or not the complaint should be dismissed for failing to state a cause of action.

On the defendant’s claim that the pain experienced by the unmarried lady was a necessary accompaniment of the childbirth process, the Court ruled that the lady’s injuries were not a natural part of child birth. She had an illness or condition for which she sought treatment and the doctors failed in their duty to care for her.

On the defendant’s claim that the lady cannot claim for emotional distress from seeing her stillborn fetus, the Court held that the lady proved her own personal and direct personal injury: she suffered intense pain for which she had to be hospitalized. The unsuccessful abortion caused her to expel her fetus and she had to undergo uterine curettage (scraping of the uterus) which is a painful procedure.

The lady also did not claim for any pain or injury for the aborted or miscarried fetus. She only claims damages for her own personal physical and emotional injury. She did not sue for damages arising from negligence and medical malpractice from what happened to the fetus but her suit is based on what happened to her when she underwent a spontaneous miscarriage.

The Court affirmed the reduced award of $125,000 for the pain and emotional distress.
An attorney must prove a duty of care that a doctor breached. Or, in the alternative, a skilled lawyer has to prove that in performing the duty of care, the doctor deviated from accepted medical procedures and standards. At Stephen Bilkis and Associates, their legal team can help advice you as to the viability of your claim for medical malpractice. They can assist you in gathering evidence, drafting your complaint and even deposing witnesses. Call Stephen Bilkis and Associates today and schedule a free consultation.

A couple, who are carriers of genetic mutations that cause cystic fibrosis were residents of the State of Colorado. When the wife became pregnant with triplets via in vitro fertilization, they decided to have a genetic test to determine the health of the fetuses. A doctor, who is the Chief of the Columbia Center for Genetics, Fetal and Maternal medicine gave the mother the option where to do the procedure, either to go to New York or to go to Philadelphia, Pennsylvania. The couple chose to go to Philadelphia.

The doctor performed a chorionic villus sampling (CVS) procedure on the triplet fetuses. This procedure involves taking a small sample of the placental tissue of each fetus to perform chromosomal and DNA analysis. A New York Injury Lawyer said the samples taken were split and labeled as belonging to fetus A, B and C. The results showed that they had one healthy fetus and two with cystic fibrosis. Based on the DNA analysis, Fetus C was a carrier of cystic fibrosis but did not have the disease. On the other hand, A and B had cystic fibrosis. On the belief that two fetuses had cystic fibrosis, the parents decided to have the doctor reduce those two fetuses, while allowing the pregnancy to continue as to the third fetus which believed to be carrier. However, the confirmatory studies done were incomplete due to the DNA insufficiency in the samples. The parents continue the pregnancy of the third fetus. When the baby was born, he was diagnosed with cystic fibrosis.

Now the parents are suing the doctor for damages based on the alleged “wrongful birth” of their son, who was born with cystic fibrosis. According to the parents, they consulted the doctor before the baby was born with the specific purpose of confirming whether the infant would be born with cystic fibrosis and with the intention to terminate the pregnancy if cystic fibrosis was confirmed. Due to the doctor’s medical malpractice connected with the pre-natal genetic testing and reduction of the two fetuses, they were not informed of the condition of the third fetus and would have chosen not to continue the pregnancy.

The parents commenced the action against the doctor and Columbia in New York. The parents have engaged in extensive discovery which included numerous depositions of the various persons involved in the testing and related procedures in the various states. The residence of these depositions and the parents include Colorado, New York, Pennsylvania and New Jersey.
The legal issues they are facing relates to forum non conveniens and choice of law.

There is forum non conveniens when the court finds that in the interest of substantial justice the action should be heard in another forum. A Suffolk Personal Injury Lawyer said the defendants move to dismiss the action on this ground. The doctor emphasizes that he performed all the procedures in Pennsylvania and most of the relevant witnesses reside in that state. However, the parents support to maintain jurisdiction in New York asserting that there are no available forum exists as the State of Pennsylvania does not recognize claims for wrongful birth.

The court agrees with the parents that the place where the injury occurred is Colorado, where the baby is born and the damages incurred by the parents for the baby’s care and treatment all occurred, even if the doctor performed his procedure in Pennsylvania.

According to jurisprudence, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred. The location in this case should be determined where the parents’ injuries occurred. Based on this, said a Long Island Personal Injury Lawyer, the court denied the motion to dismiss of the defendants and Colorado law shall be applied.

Stephen Bilkis and Associates can give you advice on remedies that can help you with your cause. Our skilled legal team are also available if your newborn baby suffered injury due to negligence of the doctors and medical staff. The asking for their help, we can understand more what our rights are and how we can fight for them.

Infant plaintiff alleges that he sustained injury due to respondent’s medical malpractice. The injury was in connection with his birth, pre-natal and post-natal up to his discharge. He sustained perinatal asphyxia, which manifested as a cognitive developmental delays, coordination difficulties, seizures, hyperactivity, and mental retardation.

According to General Municipal Law, for him to commence an action based on torts against a municipality or public corporation he must serve first a notice of claim upon the municipality or public entity within 90 days after the claim arises. But the notice of claim was served upon defendant Hospital for almost nine years past the ninety-day deadline for the filing of a notice of claim.

Under the same law, according to a New York Injury Lawyer, the court is given the discretion to allow the filing of a late notice of claim within the period of limitation for commencing tort actions against municipality provided that the action must commenced within one year and ninety days after the date plaintiff’s cause of action accrued.

Since the plaintiff is an infant, the statute of limitations on a medical malpractice action is tolled for a period not exceeding 10 years from the date the cause of action accrued. The serving of the notice of claim has been brought less than ten years, making the application timely.
A Long Island Personal Injury Lawyer said that in the exercise of the discretionary power of the court to allow a late notice of claim, it must consider all the other relevant facts and circumstances, including infancy and whether the delay would cause substantial prejudice to the municipality or public entity.

Plaintiff argues that defendant Hospital having the medical records of the plaintiff, had the actual knowledge of the facts, and since having the knowledge, defendant would be prejudiced by a late notice of claim. However, a Suffolk County Personal Injury Lawyer said that based on jurisprudence, hospital even having in their possession the medical records, do not establish actual knowledge of a potential injury or medical malpractice. Where the records do not show that the medical staff inflicted any birth injury on plaintiff during the birth process, it cannot be established that there is actual knowledge on defendant hospital’s part.

The records show that plaintiff due to his large size labor failed to progress and caesarean section has to be performed. He was depressed at birth and was suffering from perinatal asphyxia. When he was discharged, he was diagnosed with a perinatal depression and clinical sepsis. Plaintiff had a very difficult birth. However, there is no showing that he suffered from any of the injuries or showed signs of brain damage or any other impairment which he is alleging to constitute the grounds upon which he based his claim against the defendant Hospital. Plaintiff contends that, according to his physicians, the perinatal asphyxia was a result of waiting too long to perform and emergency C-section. Medical records and even the plaintiff physician do not affirm that perinatal asphyxia will not lead or result to brain damage.

Many tests were done to the plaintiff. He showed delays in language and speech, socialization and visual motor coordination, and signs of ADHD. But, these disorders do not result from perinatal asphyxia. Based on the tests conducted by physicians, there is no finding that any casual connection between the plaintiff’s delays and his perinatal asphyxia at birth exists. The record on this motion fails to establish that the defendant had actual knowledge of the facts underlying the claim.

More than nine years have passed since the birth of plaintiff, but no action was filed. Plaintiff’s mother avers that she was preoccupied with caring for him and trying to make his life normal. According to her, she did not know that she had to file a notice of claim. However, ignorance of the law does not constitute a reasonable excuse. This delay of filing of notice of claim causes prejudice to defendant hospital and it would cause injustice if the Court would exercise its discretion in allowing the filling of the late notice of claim.

Ignorance of the law is not a reasonable excuse. Stephen Bilkis and Associates can provide skilled lawyers that can help you be informed of your rights. With the help of a skilled lawyer, you can be more knowledgeable of the law and how to exercise your rights.

The Grievance Committee served the respondent with a petition, dated 20 November 2007 containing 10 charges of professional misconduct. After hearings in April 2008, the Special Referee sustained all 10 charges. The Grievance Committee now moves to confirm the Special Referee's report and impose such discipline as the Court deems appropriate. The respondent also moves to confirm the Special Referee's report, having admitted the 10 charges of the petition, and asks the Court to take mitigating evidence into account when determining the sanction.

The 1st , 2nd 3rd, 4th and 5th charges allege that the respondent converted to his own use funds entrusted to him as a fiduciary, incident to his practice of law, on behalf of his clients in violation of the Code of Professional Responsibility.

According to a New York Injury Lawyer, on the 1st charge, the respondent maintained a checking into which he deposited client funds and other funds entrusted to him as a fiduciary. On or about 26 October 2005, the respondent deposited the sum of $6,250 into his attorney escrow account on behalf of his client as the proceeds of a personal injury settlement (personal injuries may refer to broken bones, or as a result of car accidents or medical malpractice). A Suffolk Personal Injury Lawyer said that on or about 9 November 2005, the respondent drew a check in the amount of $4,083.34 payable to the order of his client as her share of the settlement. From approximately 26 October 2005 until approximately 9 November 2005, the respondent was required to maintain a balance of at least $4,083.34 in his attorney escrow account on the client’s behalf. By 28 October 2005, the balance in the respondent's attorney escrow account was depleted to $253.68.

On the 2nd charge, on or about 28 October 2005, the respondent deposited the sum of $6,500 into his attorney escrow account on behalf of his 2nd client as the proceeds of a personal injury settlement. On or about 20 November 2005, the respondent drew a check in the amount of $4,226.67 from his attorney escrow account payable to his 2nd client as her share of the settlement. From approximately 28 October 2005 until November 20, 2005, the respondent was required to maintain a balance of at least $4,226.67 in his escrow account on the 2nd client’s behalf. By 10 November 2005, the balance in the respondent's escrow account was depleted to $4,083.34.

On the 3rd charge, on or about 10 November 2005, the respondent deposited a check in the amount of $3,125 into his attorney escrow account on behalf of his 3rd client as the first proceeds of a personal injury settlement. On or about 21 November 2005, the respondent deposited a check in the amount of $7,500 into his attorney escrow account on the 3rd client’s behalf as the second portion of her personal injury settlement. A Long Island Personal Injury Lawyer said that on or about 1 February 2006, the respondent drew a check on his attorney escrow account in the amount of $6,337.75, payable to the order of his 3rd client as her share of that settlement. From approximately 21 November 2005 to 1 February 2006, the respondent was required to maintain a balance of at least $6,337.75 in his attorney escrow account on behalf of his 3rd client. By 27 December 2005, the balance was depleted to $2,798.33.

On the 4th charge, on or about 14 March 2006, the respondent deposited the balance of $25,000 into his attorney escrow account on behalf of his 4th client as the proceeds of a personal injury settlement. On or about 26 May 2006, he drew a check in the amount of $15,920.68 payable to the order of his 4th client as her share of that settlement. From approximately 14 March 2006 until 26 May 2006, the respondent was required to maintain a balance of at least $15,920.68 in his attorney escrow account on the 4th client’s behalf. By 23 March 2006, the balance in the respondent's attorney escrow account was depleted to $14,173.34.

On the 5th charge, on or about 11 May 2006, the respondent deposited a check in the amount of $8,000 into his attorney escrow account on behalf of his 5th client as the first portion of the proceeds of a personal injury settlement. On or about 25 May 2006, he deposited a check in the amount of $4,000 into that account on the 5th client’s behalf as the second portion of the personal injury settlement. On or about 14 July 2006, the respondent drew a check on his attorney escrow account in the amount of $6,907.82 payable to his 5th client as his share of that settlement. From approximately 25 May 2006 until 14 July 2006, the respondent was required to maintain at least $6,907.82 in his attorney escrow account on the 5th client’s behalf. By 21 June 2006, the balance was depleted to $6,711.27.

The 6th charge alleges that the respondent failed to safeguard funds entrusted to him as a fiduciary, incident to his practice of law, on behalf of his 6th client in violation of the Code of Professional Responsibility.

On or about 23 March 2006, the respondent received a check in the amount of $22,000 from his 6th client as payment for legal services provided. Inasmuch as the 6th client disputed the exact amount owed, the respondent agreed to hold that check in escrow pending resolution of the fee dispute. That check was not deposited into the respondent's attorney escrow account until approximately 18 September 2006.

The 7th charge seven alleges that the respondent paid himself legal fees for two personal injury matters before depositing the corresponding settlement checks into his attorney escrow account, in violation of the Code of Professional Responsibility.

On or about 28 October 2005, the respondent withdrew the sum of $6,000 from his attorney escrow account to pay himself legal fees for personal injury matters for three clients. However, he did not deposit the settlement checks for one of the three clients (3rd client) into his attorney escrow account until approximately 10 November 2005 and 21 November 2005. Between approximately 10 November 2005 and 20 December 2005, the respondent made four withdrawals from his attorney escrow account totaling $8,270.34 to pay himself legal fees for personal injury matters for four clients (8th client). The respondent did not deposit the settlement checks for another one of the four clients matter into his attorney escrow account until approximately 26 January 2006.

The 8th charge alleges that the respondent engaged in a pattern and practice of failing to promptly pay his clients the shares of the proceeds of the personal injury settlements to which they were entitled, in violation of the Code of Professional Responsibility.

On or about 28 October 2005, the respondent deposited the sum of $6,500 into his attorney escrow account on behalf of his 2nd client as the proceeds of a personal injury settlement. He failed to pay her share of the settlement ($4,226.67) until approximately 20 November 2005.
On or about 10 November 2005, the respondent deposited a check in the amount of $3,125 into his attorney escrow account on behalf of his 3rd client as the first proceeds of a personal injury settlement. On or about 21 November 2005, he deposited a check in the sum of $7,500 on behalf of his 3rd client as the second portion of the settlement proceeds. The respondent failed to pay his 3rd client her share of that settlement ($6,337.75) until approximately 1 February 2006.

On or about 27 March 2006, the respondent deposited the sum of $4,250 into his attorney escrow account on behalf of his 9th client as the proceeds of a personal injury settlement. The respondent failed to pay his 9th client his share of the settlement ($2,416.67) until approximately 15 May 2006.

On or about 11 May 2006, the respondent deposited the sum of $15,000 into his attorney escrow account on behalf of his 10th client as the proceeds of a personal injury settlement. The respondent failed to pay his 10th client her share of that settlement ($9,506.67) until approximately 20 July 2006.

On or about 18 July 2006, the respondent deposited the sum of $25,000 into his attorney escrow account on behalf of his 11th client as the proceeds of a personal injury settlement. The respondent failed to pay his 11th client her share of that settlement ($7,810) until on or about 2 October 2006.

The 9th charge alleges that the respondent failed to maintain the required bookkeeping records for his attorney trust account, in violation of the Code of Professional Responsibility.
The respondent failed to maintain records of all deposits into and withdrawals from his attorney trust account, showing the date, source, and description of each item deposited and the date, payee, and purpose of each withdrawal or disbursement. The respondent failed to maintain a ledger book or similar record for his attorney trust account, showing the source of all funds deposited into it, the names of all persons for whom those funds were held, the description and amounts of those funds, and the names of all persons to whom those funds were disbursed. The respondent failed to maintain the required checkbooks, check stubs, bank statements, prenumbered canceled checks, and duplicate deposit slips for his attorney trust account.
The 10th charge alleges that the respondent engaged in a pattern of failing to file closing statements with the Office of Court Administration (OCA), in violation of NYCRR and the Code of Professional Responsibility.

The respondent filed 143 retainer statements with OCA on behalf of his law firm between July 2001 and November 2006. However, he filed only 10 closing statements between July 2001 and 31 December 2002. Since 1 January 2003, the respondent did not file any closing statements.
Inasmuch as all of the factual allegations have been admitted and the respondent has joined in the Grievance Committee's motion to confirm, the Special Referee properly sustained all 10 charges and the Grievance Committee's motion to confirm the Special Referee's report is granted.

In determining an appropriate measure of discipline to impose, we note that the respondent has no prior disciplinary history. The court considers mitigating factors, as requested by the respondent, which are - the absence of economic harm to any client; his abandonment of the Quikbooks system in favor of personally reconciling his accounts with his banking statements; his excellent reputation in the legal community; his sincere remorse; and his full cooperation with the Grievance Committee. The respondent has admitted from the outset of the investigation that he unreasonably relied upon others to manage his accounts. He notes that the conversions were not motivated by venality. The respondent was unaware that his father, upon whom he relied to manage his account, had delegated that responsibility to his brother or that his brother suffered from a psychiatric disorder which prevented him from focusing on his accounting duties. The respondent belatedly discovered, to his detriment, that during his brother's management of his accounts, the Quikbooks entries had not been reconciled with bank statements. It became evident from continued communications with the Grievance Committee that the accounting errors went beyond the error which caused the subject check to be dishonored. Upon ascertaining that fact, the respondent instructed both his brother and his father to cease working on his accounts.

Thus, the respondent's misconduct warrants his suspension from the practice of law for a period of one year.

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A man was hit by an automobile while crossing an intersection. It is acknowledged that there were traffic signals controlling the intersection where the car accident happened. Subsequently, the man initiated a personal injury action against the driver and the owner of the automobile that had struck him. The law firm was retained as the trial counsel. The attorney who represented the man is now his opponent.

During the liability phase of the injury trial, there was conflicting testimony as to whether the injured man was in the crosswalk of the intersection when he was struck by the opponent’s vehicle. With the request of the man’s attorney, the trial court notified the jury with the vehicle and traffic law. It stated that a pedestrian has the right of way when crossing on a crosswalk, but has a duty not to leave a curb or other place of safety and enter the path of a vehicle that when a vehicle is so close it is impractical for the driver to give way. A New York Injury Lawyer said that the law further states that it only applies when there is no controlling traffic signal at the intersection, which was not the case in the accident. At the conclusion of the liability phase of the trial, the jury returned a decision finding that the injured man and the driver of the automobile had 50% each at fault in the happening of the auto accident. Following the damages phase of the trial, the jury found that the man’s sustained damages for past and future pain and suffering, past and future lost earnings, and loss of services, at which was reduced by the liability distribution. After unsuccessfully moving to set aside the liability decision, the man appealed from the judgment in the legal action contending that the trial court had made a mistake in notifying the jury on the vehicle and traffic laws. Although the man had not properly maintained his claim, the court reached did in the exercise of the interest of justice jurisdiction, reversed the judgment and ordered a new trial on all issues. In reversing, the court explained that vehicle and traffic laws imposed different rights and duties on drivers and pedestrians, and that section 1111 rather than section 1151 should have been charged because the subject intersection was controlled by traffic signals.

Shortly after the judgment in the legal action was reversed, the man initiates the legal malpractice action against his attorney and the law firm. A Long Island Personal Injury Lawyer said the man alleges that they had committed malpractice by failing to object to the erroneous charge and failing to demand a charge on the vehicle and traffic laws. In the complaint, the man wanted to reimburse the legal expenses incurred in moving to set aside the liability decision and action against the appeal. He also wanted to reimburse the probable costs of the retaining expert witnesses for a new trial. Lastly, he sought damages on the theory that they had lost the value and use of the monies that would have been secured for the opponent’s malpractice.

A second trial in the legal action was conducted. At the conclusion of the liability phase of the second trial, the jury returned a decision finding that both the injured man and the automobile driver had been negligent, but that the injured man’s negligence was not a significant factor in causing the accident. Therefore, legal responsibility for the happening of the accident was given solely to the driver. A Westchester County Personal Injury Lawyer said before the jury decided on the issue of damages, the man and the driver reached an agreement to settle the legal action.

The man thereafter moved for judgment without trial in the instant legal malpractice action contending that due to his lawyer’s malpractice in requesting an incorrect vehicle and traffic law instruction, they would have received a different amount in damages at the conclusion of the first trial. The man therefore argued that they were entitled to approximately $190,000 in damages representing the interest that would have accrued on a $750,000 award if it had been received at the end of the first trial. Although the Supreme Court granted the man’s motion for judgment, it awarded the man’s damages in the principal sum of only $28,703.27, representing reimbursement for the legal fees and expenses incurred in moving to set aside the liability decision in the first personal injury trial, action against the appeal and trying the action for the second time.

The court ordered that the judgment is reversed. The man’s motion for judgment without proceeding is denied. Upon searching the record, judgment without proceeding is awarded to the attorney of the man and the attorney’s firm. The complaint is also dismissed and the order is modified accordingly. The court also ordered that the appeal from the judgment is dismissed as speculative. Lastly, the court ordered that a bill of costs is awarded to the attorney and the firm.

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A school district was constructing a new school building. It hired a construction manager and it also hired a general contractor for the school building project. The school district and the construction manager procured an insurance to indemnify them from any claim of damages for injuries sustained in the construction project.

The general contractor hired a sub-contractor to do structural steelwork on the project. A New York Injury Lawyer said the general contractor required the steel subcontractor to obtain a general commercial liability insurance that had a $1 million occurrence limit. The steel subcontractor, the general contractor and the school district (as project owner) were named as additional injured.

On January 19, 2006, an employee of the steel subcontractor slipped and fell from a wet deck on the second floor of the building project. He landed on the first floor and was seriously injured.
When the employee of the steel subcontractor sued for damages for the slip and fall he suffered, the insurer of the school district and construction manager indemnified them. This insurer of the school district then claimed reimbursement from the insurer of the steel subcontractor because the steel subcontractor’s negligence was the ultimate cause of the personal injury suffered by its employee.

The insurer of the steel subcontractor refused to indemnify and defend the steel subcontractor because bodily injury caused by the negligence of the school district and construction manager is not covered under the insurance. A Suffolk Personal Injury Lawyer said that since the school district and the construction manager are being sued on the basis of their negligence, the insurer for the steel subcontractor cannot be made liable to pay for personal injury sustained by their negligence but only by the negligence of the steel subcontractor.

The insurer of the steel subcontractor then filed a motion for summary judgment asking that the claim against it for indemnity be dismissed because it has not yet been established if the injury sustained by the employee of the steel subcontractor was caused by the steel subcontractor, the school district, the construction manager or the general contractor. It argued that since the personal injury case is still pending, there is, as yet no finding of fault.

Because of the refusal of the insurer of the steel subcontractor to indemnify the school district and the construction manager, they were forced to sue the steel subcontractor seeking contractual and common-law indemnification and contribution. They claimed that the steel subcontractor’s employee was injured because of the steel subcontractor’s negligence.
He testified that he was working at a height and he was laying out an aluminum sheet with a new employee. The new employee froze in fear so the injured employee walked on the deck to assist the new employee. It was while he was walking over to help him that he slipped and fell. He testified that the steel subcontractor did not provide him with a safety harness while he was assigned to work at such a height.

A Long Island Personal Injury Lawyer said in this suit filed by the school district and the construction manager against the steel subcontractor, they also included the insurer of the steel subcontractor. They argue that the insurer of the steel subcontractor is obligated to indemnify them if the personal injury to the employee was caused in part by the steel subcontractor.

The trial court found the steel subcontractor liable for its employee’s personal injury. It declared that the insurer was liable to indemnify the school district and the construction manager.

The Supreme Court ruled that the terms of the insurance were clear and since there is evidence that the steel subcontractor was in part to blame for the personal injury sustained by its employee, the insurer of the steel subcontractor can no longer deny liability.

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A 32-year old resident of New York was involved in an accident on Hudson Street in New York County on 12 April 2000 while he was working and fell off (slip & fall or trip & fall) a scaffold (scaffold accident or construction accident). He hit his head when he fell and suffered a brain injury. The person has a lawsuit currently pending in Bronx County. He stated that he wants a guardian to help him because he has memory problems and he needs someone to make decisions for him. The person further stated that he has attention and concentration problems, anger issues, depression and suicidal thoughts. He takes medication for his various ailments.

As a result of his limitations, the person wishes to have a guardian appointed for his property. A self-petition has been filed for the appointment of a guardian of the property of an alleged incapacitated person (hereinafter known as "the person") where he nominated someone whom he met at his personal injury attorney's office.

The issue is whether or not the guardianship appointment was proper and that the person appointed is acceptable.

The guardian stated that he was nominated by the person and his family to serve as the guardian after meeting with all of them at the lawyer’s office.

A New York Injury Lawyer said the court evaluator stated that when he met with the person, the person was not able to state why he wanted a guardian or what the guardianship proceedings were about. The court evaluator pointed out that the medical records did not indicate what the causes of his medical problems were. In one report, a medical expert states that he is unsure if the person's memory problems are due to the depression he suffers from or if they are the result of the brain injury he sustained in the accident.

The court evaluator stated that even though the person indicated that he was having difficulty managing his finances, he admitted that he has not had any problems paying his bills. A Long Island Personal Injury Lawyer said the court evaluator further indicated that there may be a conflict with having the appointed guardian since the person is claiming to be a vulnerable person who needs help and his personal injury attorney is the one who introduced him to the potential guardian. The court evaluator further stated that the person should be designated a person in need of a guardian and the guardian should have the limited power of assisting the person with the litigation only.

The court finds that the person is a person in need of a guardian of his property for a limited duration but the nominated guardian is not accepted due to the apparent conflict involved. The person met the guardian through his personal injury attorney with whom he has a professional relationship. Zealously representing the interests of his proposed ward at a time when his own financial interests might be directly tied in with his associate attorney's financial interests can amount to competing and conflicting endeavors. Even the appearance of impropriety must be avoided at all costs.

A Westchester County Personal Injury Lawyer said the guardian’s role is to represent the person's best interests and that includes obtaining a favorable settlement for the person in his personal injury action, if the action reaches that stage. It is unclear whether or not the nominated guardian would be able to be objective since the personal injury attorney has introduced him to potential wards in the past and will likely continue to do so in the future. The financial incentive to go along with the attorney's recommendations thereby creating the likelihood of continuing this practice of generating lucrative referrals as guardian in the future cannot be discounted.

Furthermore, the court is disturbed by the guardian’s reference to the fact that he was essentially "auditioning" for the role of guardian when he was called to the lawyer’s office to meet with the person and his family. That there may have been a certain amount of "acting" involved in that meeting is a great possibility and further firmly establishes to this court the fact that an independent guardian should be appointed for the person and not an individual he met through his personal injury attorney who very well might have a monetary stake in the outcome of the litigation.

In view of the above, the court appoints another as the guardian of the property of the person for a limited duration. The newly appointed guardian’s powers are limited to assisting the person in the personal injury litigation and limited to the duration of the litigation. However, the guardianship can be extended beyond the duration of the personal injury litigation upon good cause shown.

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The County of Columbia in New York established a solid waste disposal plant in the town of Claverack in 1981. To protect itself, the County procured comprehensive and general liability insurance policy. The insurers claimed in its advertising that it would pay all sums which the insured shall be legally obligated to pay as damages because of bodily injury or property damage. Every insurance policy excluded from coverage those bodily injuries and property damage sustained from pollution or arising from the discharge, dispersal, release or escape of waste materials, contaminants and pollutants on land, atmosphere and water unless the discharge was sudden and accidental.

In 1986, the solid waste disposal system was charged with violations of the Environmental Conservation Law for it was found that liquid waste was leaching onto the soil and seeping into the groundwater which was the source of drinking water for the town of Claverack. A fine was assessed against the Town of Claverack but the payment of the fine was suspended on condition that the Town close down the solid waste disposal facility. It was closed in December 1988.

A New York Injury Lawyer said however, the County however, continued using the facility despite the order of the Town to close the solid waste disposal plant. The Town of Claverack sued the County. A hunting club that owned the land next to the solid waste disposal plant also sued the County in January 1989 for impairment of the soil, air, ground and surface water. The hunting club also alleged that the County’s continued use of the facilities was a continuing nuisance, a continuing trespass and that its activities in using the plant has caused the eviction of the hunting club from its premises.
The County asked the Court to allow it to include as a third party defendant the insurance corporations who were obligated under the insurance policies issued by them to the County to reimburse and indemnify the County and to defend it in these actions for personal injury filed against it.

The insurance corporations refused to indemnify and defend the County. It also asked that the complaints against it be dismissed.

The court dismissed the complaint against the insurance corporations because the complaint for damages falls within the pollution exclusions. The County appealed this dismissal of its complaint against the insurance corporations.

The only question before the Supreme Court is whether or not the insurance corporations can be made liable to indemnify and defend the County in the cases for personal injury filed by the Town of Claverack and the hunting club against it.

A Suffolk County Personal Injury Lawyer said that on appeal, the County claims that the insurance corporation should be made to indemnify and defend it because of the advertisement it made promising to pay any and all sums to indemnify the County for damages it is required to pay.
The Supreme Court ruled that while it is true that the insurance companies have made the advertisement endorsements that promises to pay any and all sums, it also stated that it will not pay the sums if they arise from events that are not covered by the policy.

The Court ruled that the laws of the state of New York precisely excluded pollution from the coverage of all insurance policies issued in New York. The allegations contained in the complaint precisely claimed that the County willfully used the plant to treat waste after it had been closed. A Long Island Personal Injury Lawyer said the County’s operation of the plant caused pollutants to leach into the ground water. Clearly, damages for personal injury arising from pollution are not covered by insurance policies. More importantly, the complaints alleged that the County’s operation of the plant constituted continuing nuisance, continuing trespass and invasion. These offenses are clearly not covered by the personal endorsement.

The Court dismissed the complaint of the county against the insurance companies.
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The wife came to court for his husband’s injuries and death claims allegedly resulting from breach of warranty and strict liability in an injury. The complainant further claims that the single utility vehicle accident was caused by the failure of one of the car’s steel belted radial tires. The complainants admit that the tire company has answered the sixty-eight inquiries they served upon the tire company.

The accused on the other hand assert that the complaint establishes the tire company’s product liability for the man’s death upon theories of negligence, strict injury liability and breach of warranty in connection with the manufacture and sale of the tire. The complaint also alleges that the man’s death was conscious for an undetermined period of time prior to the car accident and that the tire company is liable upon the same theories for his pain and suffering.

The question is whether the complainant is entitled to a deposition of the accused after having served written inquiries upon the tire company. A New York Injury Lawyer said after commencement of an action, any party may serve upon any other party a written inquiry. A party may not serve written inquiries on another party and also demand a bill of particulars nor, in the case of an action to recover damages for an injury to property or an injury resulting from negligence or death and take a deposition without leave of court.
The law does exclude the use of inquiries in all wrongful death actions regardless of the underlying theory of recovery pleaded. The court recognized the difficulties associated with the language and was careful to confine its decision to the specific issue raised rather than assuming the Legislature's function.

There is still a difference between a personal injury and property damage claims and the wrongful death claim. But now the difference need to choose between inquiries and a deposition which exists in all wrongful death cases without regard to ground, but, with respect to personal injury and property damage cases, the election is necessary only in those based on negligence. A Suffolk County Personal Injury Lawyer said when not so based, the two devices are apparently to be available without a special court order.

When an injured party asserts in a personal injury action both negligence and breach of warranty claims, the courts have been compelled to draw a careful line between the two theories and have permitted the service of inquiries only with respect to the breach of warranty claim notwithstanding that the two claims stem from the same accident.

It is not possible to draw such a line between the personal injury and wrongful death claims in the present case. Realistically, the accused tire company could not be deposed solely regarding the personal injury aspect of the lawsuit without also disclosing matters that are relevant to the wrongful death claim. The matter would be true whenever a wrongful death allegation was present, since the factual underpinnings of such claim necessarily involve all the causes of action asserted. However, the law prohibits the issue from occurring in the absence of granting a prior leave of court.

It was held that since the fourth cause of action was essentially a claim for general damages arising out of the deceased person’s death and the inquiries were properly stricken. In upholding the denial of the complainant’s motion for a protective order for reasons not relevant, the court noted that the law as it read prohibited written inquiries in actions for death or for injury or property damage based on negligence. A Long Island Personal Injury Lawyer said the amended law lifted the absolute prohibition so as to allow written inquiries to be obtained in all actions, upon certain conditions and restrictions, the need to seek leave of court in a wrongful death case.

Therefore, a party in any action involving a wrongful death claim may only proceed by seeking leave of court to serve written interrogatories and depose the same party. The tire company has already responded to sixty-eight inquiries served by the complainant as noted and the complainant did also attend the deposition of the tire company taken by the co-accused. The complainant has failed to demonstrate any special circumstances to support its application to depose the tire company and leave to depose the tire company is denied.

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A woman claims she sustained personal Injuries including a fracture, when she tripped and fell in a building in Manhattan where she lived. The woman retained a law firm to commence a law suit against the woman’s landlord, the property owner. The law firm commenced the action by filing the summons and complaint, which were shortly thereafter served on the property owner. The personal injury action was eventually dismissed for failure to prosecute. A subsequent motion to restore the action was filed by the second law firm and was denied.

The woman thought her case was active and ongoing. A New York Injury Lawyer said that she contends that none of the attorneys contacted her or told her otherwise. In May 2008, her daughter became concerned about her mother's personal injury case and filed a disciplinary complaint against the first law firm on her mother's behalf. The letter refers to the law firm and states that the daughter had called them numerous times. She indicates in her complaint that the file has been with the firm since 1998. The daughter states further that she appeared in court with her mother four years ago and the Judge ordered medical records and the case was adjourned to another date which never came. No one has been in touch since. She further states that the last time she called she was told that the case was old and no one could locate the file.

Although the disciplinary complaint was issued against the first law firm, by a letter by the second law firm states that the first law firm had been dissolved in 2002. The answer states that the woman was the client of a particular attorney while he was with the first law firm but that he left the firm to start the second firm in July 2008 and then another law firm later on.

The attorney also states in his letter that the woman’s personal injury action was dismissed. A Long Island Personal Injury Lawyer said that after numerous attempts were made to proceed with an inquest, he was told that since certified medical records were unavailable then it became possible to hold an inquest and obtain judgment. According to the letter, the lawyer told the firm that he had notified the woman and her daughter about the situation and advised her to have herself examined by a doctor so the case can proceed for inquest.

The woman denies anyone ever told her there was a problem with her medical records being unavailable or that she needed to set up a doctor's appointment or that the case was set down for inquest. According to her, it was only after the disciplinary complaint was dismissed that she first learned about, and obtained a copy of the order. A Westchester County Personal Injury Lawyer said that the order provides that the motion by the complainant to restore the stale action to the court's inquest calendar even though no note of issue has ever been purchased is denied. The woman has not offered any explanation or excuse for her repeated defaults including her failure to file her note of issue pursuant to the Officer's order. Failure serve the judicial support office for an assessment of damages by a referee pursuant to the court's order and failure to file her Note of Issue pursuant to the court's order ultimately resulted in the court's dismissal of the complaint.

The woman’s present attorney states that the Affidavit of Merit she sign in February 2005 in support of the motion to restore was written in such a manner that it was deliberately vague so as to keep her in the dark about what was going on. The affidavit states that she has a meritorious cause claim against the property owner where she tripped and fell, but contains none of the other statements contained supporting affirmation. The woman contends that it is a proof that the law firm deliberately concealed the true facts from her, which is a violation of Judiciary Law.

The accused denies ever meeting with or talking to the woman. He contends he was never a member of the first law firm, but only an associate, fresh out of law school. He claims he left the first law firm on December 31, 2000, well before the alleged malpractice occurred and he had no further involvement with them after he left.

According to the accused, the woman’s claim accrued on July 11, 2003 when the case was dismissed for failure to prosecute and, therefore, the action is time barred because the woman failed to commence the action within three years. The accused also denies that the doctrine of continuous representation has any applicability to the facts of the case because there was no ongoing attorney/client relationship between him and the complainant, thus the statute of limitations was not tolled but expired.

The last two law firms are jointly represented and argue that the complainant’s malpractice claim accrued when the Judge denied the motion to restore the personal injury case and not when she learned about the Judge’s order, which was allegedly in September 2008 when the third law firm answered the disciplinary complaint. The accused deny any fraud on their part such that would toll the statute of limitations.

The law firms also deny that they maintained an ongoing attorney-client relationship with the woman or had any contact with her daughter about the personal injury action after the Judge’s order of dismissal. While the firms agree that the present counsel were once partners in the first law firm, the accused contend that the first law firm was disbanded in 2002 and, thereafter was substituted by the second law firm. Since the woman was a client of one the accused attorneys, he kept the woman’s legal action and it traveled with him to the new firm. After the woman’s counsel withdrew from the second firm in 2008, the firm changed its name. The accused argue that the second cause of action, alleging a violation of Judiciary Law should be dismissed because the woman has not pled it with the required specificity.

Another partner from the first law firm separately argues that although he was a named partner in the first and second law firm before the personal injury action was dismissed, he left that firm to form another in May 2002 and he had no contact with the woman after that. He contends that the woman has provided no facts to support any claims against him and, like the other accused attorneys, he contends that the statute of limitations for the case has expired and was not tolled. He also seeks the dismissal of the claim based upon Judiciary Law because there are no facts that he engaged in any deceitful acts.

The accused parties’ counsels collectively argue that the case is time barred because the woman’s claim accrued in 2005 and she did not commenced the action within three years from that date. The counsel from the previous law firms denies that there was any attorney-client relationship with the woman since the case was dismissed. He also denies any personal liability because he was a shareholder in a professional corporation and then a professional limited liability corporation. Furthermore, like the other accused, he denies any fraudulent or deceitful acts to support a viable claim under Judiciary Law.

We have the obligation to keep our premises safe for everyone, if other people do otherwise, some may get hurt. If you need an assistance with a trip and fall case, you may reach the offices of Stephen Bilkis and Associates. A slippery sidewalk may cause anyone to fall and a qualified lawyer may help you with your legal actions.

A construction company and a building owner asked for judgment without proceeding claiming that the accused, an insurance provider of the subcontractor electrical company, has a duty to support and cover them with respect to the law suit filed against them. However, the insurance provider filed a move to dismiss the complaint.

In the underlying personal injury action of a law suit against the complainants, a man alleges that he was injured while working at the premises of the building as a journeyman-electrician. He was providing voice and data communication work for an electrical company. The accident happened when he was doing a data testing terminations on the ninth floor of the premises. While he was exiting the restroom, he tripped on tarp and fall on the corridor floor. The said action was allegedly settled for $600,000 with defense costs evidently acquired by the construction company.

A New York Personal Injury Lawyer said that the construction company was the general contractor for the renovation project of the premises. The renovation project was owned by the other complainant and an electrical company subcontracted the electrical work by means of a purchase order agreement. The agreement between the construction company and the electrical company states that as subcontractor, the electrical company shall hold harmless, assure and support by the construction company and others as requested by the general contractor from and against any and all claims, damages, liabilities, losses and expenses, including reasonable attorney's fees arising out of or occasioned by, or in any way connected with the work called for by the purchase order. The protection agreement will continue until the completion of the said project. The agreement also required the electrical company of commercial general liability insurance and it must name the construction company as an additional insured under the policy.

Based on the record, a Long Island Personal Injury Lawyer said that an insurance policy is a contract between the insurer and the insured. Therefore, the extent of coverage including a given policy's priority contrary to other policies, are controlled by the relevant policy terms and not by the terms of the underlying trade contract that required the named insured to purchase the coverage.

The insurance provider, then, issued a commercial general liability insurance policy to the electrical company as the primary insured and the construction company was named as an additional insured under the policy.

The insurance provider of the construction company contacted the insurance provider of the electrical company to demand that they should support and cover the construction company in the underlying personal injury. The electrical company’s insurance provider responded the demand, in which it agreed to support both companies under a reservation of rights, but it undertook no action to assume the defense or to disclaim coverage on any specific grounds.
The construction company then instituted a third-party action against the sub-contractor electrical company for contractual remuneration, which was dismissed by the court. The court noted that the terms in the agreement between the construction company and the electrical company regarding contractual remuneration was unenforceable because it alleged to cover the construction company for its own negligence and the construction company could not show that it was free of negligence. The immediate action was initiated and the insurance provider of the electrical company for the first time, disclaimed coverage based on the court's decision stating that the accident did not arise from electrical company’s work for the construction company.

In support of their motion, a Suffolk County Personal Injury Lawyer said that the construction company and the building owner argues that the occurrences of the man’s injuries convene coverage on the complainants as an additional party insured. A corporation, such as the electrical company can only act by its employees, and it is certain that the man was working as their employee at the time of his alleged injury. The electrical company’s insurance provider policy grants additional coverage to any entity to whom the company is required to provide such coverage with respect to liability arising out of the company's work. As the man suffered injuries while in the course of his employment for the electrical company and agreed to provide additional insured coverage for loss arising out of its work, the construction company is entitled for support and remuneration from the insurance provider.

The construction company and the building owner further contend that the court's earlier determination that the electrical company’s insurance provider was not obliged to cover the construction company in the underlying legal action does not prohibit in finding that the electrical company’s insurance provider is obligated to support and cover the construction company as additional insured in accordance to the terms of its policy with the electrical company. They also argue that the contractual remuneration language in the underlying action required the electrical company to provide remuneration for the construction company’s negligent acts or omissions, whereas the electrical company’s insurance provider’s policy is not so worded.

The counter objection of the insurance provider for the electrical company stated that the court's earlier decision determined that the construction company was solely and exclusively responsible for the man’s injuries, and that, if the purchase order was intended to have the electrical company ensure the construction company for their own negligence, it would be void and unenforceable as against public policy. The insurance company also states that there is no indication that the electrical company is intended to ensure the construction company for the types of employee claims barred against employers under the workers' compensation law, and the construction company cannot avoid its obligation to maintain a safe workplace or avoid liability by shifting the burden to the man’s employer and the employer's insurance provider. In addition, the insurance provider states that even if the construction company were considering being as an additional insured, the insurance policy excludes employee claims.

The complainants’ contend that it is certain that the man's accident happened when he tripped and fell on a tarp on his way out to the restroom while working on a construction project for the electrical company. Consequently, according to the construction company, the man’s injuries arose while engaged in performing his work at the job site. Therefore, the insurance provider is obligated to support and cover the complainants as an additional insured in accordance to its insurance policy with the electrical company. Lastly, the complainants maintain that since the insurance company failed to raise the employee exclusion provision in its denial letter, it is now irrelevant from avoiding defense and remuneration obligations based on that exclusion. Regardless of that provision being inapplicable to the additional insured, the only named insured under the policy is the electrical company.

The court ordered that the complainants’ motion for judgment without proceedings is granted. It is decided and declared that the insurance company has a duty to support and cover the complainants in the underlying personal injury action. It is also ordered that the accused parties’ counter motion to dismiss the complaint is denied. The issue of amount that the insurance provider shall reimburse to the complainants for the sums expended in supporting the underlying legal action is referred to a special referee to hear and report with recommendations, except that, in the event of and upon the filing of the provision of the parties, as permitted, the special referee or another person designated by the parties to serve as referee shall determine the issue.
A trip and fall accident can result in serious injuries. If you are injured due to negligence of other people, our legal team is capable of guiding you in pursuing legal actions. Even if we have indemnities to cover damages, unforeseen events always happen.

A unconscious woman, naked and beaten, was discovered in an undeveloped Miami cul-de-sac in Miami, in February 2005. Investigators, are still confused by the turns this case has taken.“She was dumped out and left for dead,” a Miami-Dade police detective said.

The victim was without identification, and even after canvassing houses near the site, the police were unable to turn up any new information. It was a day before the victim regained consciousness, but she had difficulty remember what happened, due to the savage beating she had received. While the extent of her injuries were unclear, the types of assaults can result in a broken bone, spinal injury or brain injury.

At the time, she couldn’t speak, but she was able to write enough to identify herself as a Ukrainian woman who worked for a cruise line. She also wrote down her attorney’s name and phone number, which the detective found “very unusual”, as told to a New York Injury Lawyer.
“Maybe they thought it was unusual that someone would ask for an attorney, but this woman had a horrific assault and probably was reaching for anything that she could,” an attorney explained.

The victim had been injured in the ship where she worked and had filed a suit against the cruise line. “I didn’t know nobody,” she said. “I was alone up here. So the only one person who I knew, that was my attorney.”

While she was recovering, the cruise line paid for her hotel, which was 10 miles from where she would be found.

“We have 16 cameras covering the whole perimeter of the hotel,” the hotel vice president told a Westchester County Personal Injury Lawyer. “Those cameras have a motion sensor detector. We have two security guards at night on duty. So we can see anything that happens.”

The police detective used the security DVDs to assist his investigation. The victim was seen walking to the lobby elevators at 3:41 am after buying a phone card to call her mother in Ukraine, and was not recorded again. Somehow she ended up 10 miles away, naked and beaten, where she was discovered five hours later.

“She has no clue what happened to her,” the police detective told Long Island Personal Injury Lawyer..

As mysterious as this case in, this women got off relatively lucky. These types of cases can result in emotional and physical scars that can last a lifetime. Injuries can run the gambit, from a back injury, to a skull fracture and even death in some instances. If you or a loved one has been hurt in a terrible accident, be sure to contact legal counsel for assistance as soon as possible. The sooner a qualified lawyer is on the case, the better. The injured party deserves just compensation for their injuries. Just compensation can include reimbursement for medical expenses, lost time from work, pain and suffering and more. Contact the skilled team at Stephen Bilkis and Associates to ensure that you case received the attention it deserves, and that your rights are protected throughout the legal process.

Continue reading "Mystery of Woman Left for Dead Remains Unsolved in Miami" »

One man’s quest to find an inexpensive cab service led him to open his own business, an affordable transportation service which now operates in Miami, Fort Lauderdale, West Palm Beach, Fort Myers, and Naples.

The service started by this man, only 23 years of age, and another recent college graduate, a 24-year-old woman, has already expanded to nine states.

The 23-year-old man actually lives near Cleveland. He remembers paying $60 just to go downtown to have food and drinks with friends. At the time, he resented paying all that money, but it was worth it to avoid driving home after drinking. His experiences led to his designated driver business.

“The idea came from catering to those professionals who have something to lose,” the young man said. “You wouldn’t want to work hard toward becoming a lawyer, doctor, or teacher and blow it over a DWI.”

Ohio is the biggest money making state for the company, but the other states are also doing well, the founder revealed to a Long Island Personal Injury Lawyer.

“People have really liked their drivers and return customers understand how beneficial [our business] really is,” he said.

They offer other services as well, including transportation to the airport and transportation for the elderly. Their big business still comes from the “night out” package, which costs $15 an hour for a personal chauffeur. The drivers go to the home of the customer and drive them wherever they like, using the customers’ own cars.

Those who have been out and have been drinking can also call for two drivers to come and pick them up and take their car home for just $25 plus mileage.

The company avoids the usual taxi restrictions since the use the cars of the customers. “There are a lot of companies doing that now in South Florida,” a licensing manager told a New York Injury Lawyer. “If it just entails driving a customer around in their own car then there’s no need for a license from us.”

One Miami bartender explained, “I see all these ‘Don’t drink and drive’ commercials, but they never tell people there’s an alternative.”

Driving under the influence can cause serious consequences. If you are found guilty, you could be facing criminal penalties, as well as civil penalties for personal injury if someone is hurt. Civil suits can include claims for wrongful death, a back injury, a head injury and more.

Continue reading "Designated Driver Service Starts in South Florida" »

A woman was struck by a patrol cruiser as she walked home one rainy night in April. She died soon after from her injuries. As she walked home in the rain, the 63-year-old office worker was hit by a police car at 10:41 p.m. on a Saturday night.

She was taken to the hospital, but it was already too late – she was pronounced dead at 11:25 p.m. She was almost home – just a few blocks away, when the accident occurred, likely caused in part by the stormy weather which had been prevalent during that time.

The officer, from the suffered some minor bruises to his knees and also went to the hospital, but was later released. When he hit the woman, he was on patrol. His identity has not been released by Nassau police, and the investigation is still ongoing.

It was almost the first night of Passover and the victim’s family had been looking forward to spending it with her. Instead, they are arranging for her memorial.

According to the victim’s son-in-law, the victim was a warm and friendly person who enjoyed having family and friends over for holidays. He told a New York Injury Lawyer she was “very friendly and sunny, and just a happy person, fun to be around.” She “loved to celebrate the holidays, hosting holiday celebrations. We were supposed to go to her house tomorrow night for the first seder,” he said.

There is no amount of money that can erase a tragedy or make up for a loss in a wrongful death incident, but that doesn’t mean justice should be abandoned in the face of grief or pain.

Continue reading "Beloved Mother Struck and Killed by Patrol Car" »

A passenger was killed in October when the driver met into an accident while driving drunk. A police officer told the authorities that the woman was only twenty years old and she decided to drive while intoxicated, which was not a wise decision to make. Her blood alcohol level was way over the limit as she drove her car on Highway 98 in Destin, Florida. Her car hit a utility pole according to what the news media told the police.

She had a passenger in the car and that passenger was a young lady who was only twenty two years old. The passenger died on the scene. The twenty year old drunken driver, stated the source, was arrested three months later for this incident.

According to reports by the Police, both passenger and driver were going east on the highway over the speed limit and suddenly the car ran off the road into a utility pole. This happened at about four thirty in the morning close to where the passenger and driver lived. New York City and Long Island deal with these types of accidents very swiftly and with little tolerance for the drunk driver.

A warrant was issued for the driver’s arrest, the Police told the newspaper. The driver gave information to the Police that she had three shots of liquor at midnight and that she had gone to a nearby bar and salon. She got paranoid that a white car was following her on the highway. It was when she looked back that her eyes came off the road and the car accident occurred.

Continue reading "DUI manslaughter charge" »