New York Personal Injury Lawyer Blog

A 72 year old lady lived in an apartment complex where there was a “no pets” policy in the lease. One of the residents violated his lease and kept a pit bull as his pet. On August 8, 1995, the 72 year old lady was walking down a pathway when she heard a dog barking. She saw a neighbor or hers as he tried to control his barking pit bull. The dog’s owner told the 72-year old lady that his dog was barking because he saw children playing and that aggravated the dog.

A New York Injury Lawyer said a few seconds later, the dog jumped up on the 72 year old lady. The dog attacked the lady and she sustained a head injury when the dog bit off her left cheek. The lady then sued her landlord because he was negligent in enforcing the terms of the lease that no pets were allowed in the apartment building. She also sued the dog owner. She claimed that the dog owner knew or should have known that his dog had vicious propensities. He should have known that his dog attacks people.

Both the landlord and the dog owner filed a motion for summary judgment asking that the complaint against them be dismissed. The plaintiff also moved for a summary judgment asking the court to determine liability.

During the trial, the plaintiff presented evidence of newspaper reports and magazine articles that pit bulls are dogs with vicious propensities. A Suffolk County Personal Injury Lawyer said the trial judge took judicial notice that pit bulls were a vicious breed that is known to attack and bite people.

The dog owner and the landlord filed this appeal. The only issue before the Court was whether or not there were triable material issues of fact.

The Court first noted that the judge improperly took judicial notice that pit bulls are a vicious breed. The Court held that in order for judicial notice to be properly taken, the fact must be of such generalized knowledge that is so notorious that there can be no reasonable dispute.
The Court also held that there are many other sources or authorities that show put bulls do not have a vicious nature but that they have the capacity to be trained to become vicious. The existence of these evidence show that judicial notice should not have been taken by the trial court judge.

The Court held that the viciousness of a breed cannot substitute for evidence of the viciousness of a particular dog who is a member of that breed. There must be evidence that the specific dog itself was vicious. Evidence that viciousness must be specific to the dog who had bitten the child.

The plaintiff submitted evidence that five times prior to being bitten, he saw the dog owner and one of the dog owner’s sons walking the dog while it was on a leash. She testified that the pit bull appeared extremely strong as it was always straining at his leash. He looked like he had very sharp teeth.

The Court ruled that all this is not sufficient to prove that the dog owner knew or should have known that his dog had a vicious propensity. A Staten Island Personal Injury Lawyer said it does not prove that the owner knew his dog attacks and that the dog bites people. There is also no evidence that the landlord knew that his tenant had a dog with a vicious propensity.

Although there is evidence that the dog owner had been in violation of his lease because he kept a pet in his apartment despite the clear prohibition to keep pets, this violation of the lease does not show that the landlord was negligent. It does not show that the landlord knew that the dog had vicious propensities.
Thus, taking everything into consideration, there is no triable issues of fact that tends to show that the landlord or the pet owner knew or should have known that the dog had a vicious propensity.

Call Stephen Bilkis and Associates today. They have New York Dog Bite Lawyers at any of their offices in the New York area. You can talk to any of the New York City Dog Bite lawyers and ask them to assess if you have a viable cause of action for damages. Their NYC Dog Bite attorneys can help you file your complaint. Their NY Dog Bite attorneys can help you present evidence on your behalf. Call Stephen Bilkis and Associates today and begin the process of claiming the compensation you deserve.

A woman was walking along a sidewalk on Leonard Street in Brooklyn. She passed a house with a garage that abutted a sidewalk. The position of the garage door indicated that the residents of the house passed the sidewalk when they bring their cars to and from the garage.

A New York Injury Lawyer said as the woman was walking on the sidewalk in front of the garage door, she slipped on ice and snow that had not been removed. Her weight was on her right foot when she suffered the slip and fall. She sustained personal injury and commenced a suit in damages against the owner of the property that abutted the sidewalk.

After discovery proceedings and before trial, the property owner moved for a summary judgment, asking that the complaint be dismissed for the failure of the plaintiff to show that there are genuine issues of fact that must be heard by a jury.

The defendants offered preliminary evidence that they cleared or attempted to clear the snow from the sidewalk in front of their garage to prevent the slip and fall. They did not create or worsen what could have been a dangerous or hazardous condition on the sidewalk.

The plaintiff naturally opposed the motion for summary judgment. She claimed that the homeowner made special use of the sidewalk as access to their driveway and garage. She also contended that the use of the homeowner of the sidewalk caused or created the icy condition on the sidewalk and caused the woman to slip and fall. She also claimed that dangerous condition is that the ice covered the cracked surface of the sidewalk that had a hole in it.

The only question before the court was whether or not there are material issues of fact that still remain and that can only be tried by a jury. A Staten Island Personal Injury Lawyer said the Court ruled that the homeowner was entitled to the summary judgment they moved for as there are no more issues of fact that must be tried.

The Court first of all stated that there is no duty on the part of the homeowner to keep the public sidewalk in front of his house in a safe or passable condition. The reason for this rule is that the homeowner does not own or control the public sidewalk. The Court further stated that there is however a legal duty imposed upon landowners whose properties abut a sidewalk to refrain from acting negligently and creating dangerous conditions or obstacles. If the homeowner takes it upon himself to repair the sidewalk that abuts his property, he may be liable for injury caused to others by the shoddy repair job. When the landowner benefits from a use of the sidewalk, a legal duty also arises for the homeowner to maintain the sidewalk with due care for the safety of passersby.

There is no allegation or evidence that the homeowner in this case acted negligently in such a way as to have created a dangerous condition or obstacles on the sidewalk. There is no allegation or evidence that the homeowner has derived a benefit from the sidewalk or has undertaken the duty to repair the sidewalk for the purpose of benefiting from the sidewalk. There is no shoe showing that the homeowner has constructed a special feature on the sidewalk although they may have regularly used it to get into and out of their garage.

There was no allegation or showing that the homeowner caused the ice to form on the sidewalk. A Queens Personal Injury Lawyer said from all indications, the ice was a natural occurrence. The woman who sustained injury was unable to show that the homeowner ever cleared the sidewalk or attempt to clear it thereby causing ice or snow to accumulate on the sidewalk.

The motion for summary judgment in favor of the homeowner is granted and the complaint is dismissed.

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The appellant is State Farm Mutual Automobile Insurance Company. Jacques Laguerre et al. Are listed as defendants and Petter A. Gozzi is named as a respondent.

Results

The initial order from the original suit was reversed as was appealed for in regards to the portion of the original complaint. The plaintiff looked for summary judgment that would remove any obligation to defend and provide liability coverage to Jacques Laguerre. This defense was to have been in regards to a car crash that occurred on February 11, 1999. Petter A. Gozzi also filed a cross-motion that would force the plaintiff to defend and indemnify Laguerre in the action regarding the crash. This case, Index Number 111255/01 was pending in New York County. However, a New York Injury Lawyer said the motion to force State Farm to defend and indemnify Jacques Laguerre was subsequently denied.

Insurance Law

Jacques Laguerre was initially issues insurance policies on automobiles which were provided by State Farm Mutual Automobile Insurance Company. Weeks after those policies were issued; three collisions took place involving the insured vehicles. One car accident involved Laguerre's car hitting the vehicle driven by Peter A. Gozzi. This took place on the 11th of February, 1999. Gozzi began an action that sought damages for personal injuries against the driver in the car which hit him. An investigation was conducted that examined the circumstances of the collision; however, the findings indicated that the accidents were caused on purpose. Allegedly, this was done to collect insurance benefit money.

After this discovery, State Farm began an action seeking a ruling that would eliminate any onus on its behalf to provide liability coverage for collisions involving the Laguerre owned vehicles. The Supreme Court felt that two collisions were clearly intentional, and ruled that State Farm did not have to provide coverage in those instances. However, a Queens Personal Injury Lawyer said the February 11th crash presented with facts that were deemed triable.

Gozzi had also made a motion that requested that State Farm be required to defend and indemnify Laguerre in the action in regards to the February 11th accident, which was granted.

Insurance Law

According to Insurance Law, accidents that are arranged in order to commit fraud are not covered by automobile insurance policies. State Farm was able to prove that the accident in question was caused deliberately in order to commit fraud for the purposes of collecting insurance payouts. Gozzi was not able to present any issue which was triable in order to oppose the motion put forward by State Farm. A Staten Island Personal Injury Lawyer said the distinction is that there is no exclusion provision in the policy which prevents coverage in this type of incident. Instead, the incident is not covered at all due to its intentional nature. This means that the Plaintiff, under Insurance Law 3420 (d) is not required to issue any type of disclaimer.

Stephen Bilkis & Associates specialize in helping clients in legal situations determine what types of legal action options they have available to them. Free telephone consultations are available to help lay out these options for you. Your specific circumstances are understood by our team of highly trained lawyers. They will work with you to ensure that the outcome you end up with is the best possible one. You can find our offices throughout greater metropolitan New York.

On January 15, 2006, a woman left her home in Queens, New York. She was walking and it was snowing in a heavy fashion. She stated that she had seen five inches of snow on the banister of her home’s steps when she walked down them. A New York Injury Lawyer said she woman walked past two houses on her way to the supermarket. She stated that she had gotten home from work the night before and that it had been snowing and there was ice on the sidewalk. When she was in front of the house owned by the defendant and his wife, she tripped on something in the snow and fell (slip and fall). Her ankle was twisted badly and she could not get up to continue on to her location or to go back to her own house just two houses away. She testified in court that she sat on the sidewalk in front of the defendant’s house for two hours in a blinding snowstorm until she was found and helped. She stated that she had tripped on old ice that was piled up under the new snow. As she sat there, she examined the ice and found that it was old and blackened with dirt from melting and refreezing.

The defendant has filed a motion for summary judgment in his favor dismissing the complaint against him. He maintains that there was no snow accumulated in front of his residence. He and his wife testified that they shovel the snow in front of their residence as soon as the snow accumulates there. They maintain that they were never notified by the city that there was an accumulation in front of their home that needed to be removed. Queens Personal Injury Lawyer they further stated that until the notice to appear in court, they did not know anything about anyone falling in the snow.

In support of their claims, the defendant produced climatological reports for the two weeks prior to the incident. The woman claimed that she had noticed the ice on the sidewalk in that location a couple of weeks before and that the defendant’s had failed to remove the ice. The defendant’s refute that claim by stating that after shoveling snow, they are always conscientious about applying salt to the sidewalk to make sure that ice does not form. The climatological reports showed that while it got down below freezing at night on several of the nights, prior to the snowstorm of that date, the days were warm and any snow or ice that was on the ground would have melted. Since this evidence creates an atmosphere of doubt surrounding the survival of any ice on the sidewalk for two weeks prior to the accident, it is doubtful that the woman tripped on any old ice.

Since the weather was too warm for the preceding two weeks for ice to have remained on the ground, the ice that was on the ground must have been fresh or recent ice. The woman claimed that on her way home the night before at about eight in the evening, it was snowing and hail was falling. Because the snow and ice had fallen all night, and the woman herself stated that there was about five inches of snow on her own banister, it is reasonable to assume that the snow and ice that caused her to fall had occurred overnight and in the early morning hours. Staten Island Criminal Lawyer said that means that the defendants did not have a reasonable amount of time to shovel the sidewalk before the woman walked down it. The court found in favor of the defendants and granted a summary judgment to dismiss the case against them.

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On 1 August 2009, the complaining witness, respondents’ neighbor, was washing his car in his own driveway when his next door neighbor exited her home. As she exited, three adult Rottweilers ran out of the house and chased a male who had apparently been visiting the woman next door. A New York Injury Lawyer said that individual seemed to be frightened by the dogs and in order to avoid what seemed to have been an imminent attack (a dog attack or an animal attack), jumped upon a vehicle owned by the complaining witness. At that time, the same three dogs turned their attention to the complaining witness. He, too, jumped on top of his car to avoid what seemed to be an attack on his person. However, this time the dogs alighted the vehicle he had been washing and one or more of the dogs bit him on numerous parts of his body. It was only after he was perched on top of his vehicle that the dogs retreated to the respondent's home.
Subsequently, the aforesaid neighbor initiated this complaint.

During the hearing, the Court was able to observe a wound on the victim's hand. Photographs were admitted into evidence depicting two large and seemingly deep penetrating wounds on the victim's thigh. Other photographs were admitted into evidence showing that pieces of human flesh and fatty tissue had been ripped from the victim's body. Furthermore, it is apparent that blood was dripping from the roof of the vehicle and down the windshield. Moreover, it is apparent to the Court that the blood was that of the victim. It should also be noted that paw prints were depicted on the hood of the freshly washed car.

The primordial concern here is whether a rational person could assume that the behavior of the victim could reasonably believe that his actions could be anticipated to be interpreted as violent, threatening or tormenting the subject dog or dogs. In this case, the victim was merely washing his car, on his own property. A Queens Personal Injury Lawyer said the Court must, in this case, take Judicial Notice that dogs are pack animals and that notwithstanding the fact that the victim is not sure which or how many of the subject Rottweilers actually bit (dog bite) him, he is certain that they all chased him and all acted together in the attack.

Undoubtedly, the Court finds that there is clear and convincing evidence that the attack on the complaining witness by his neighbor's dogs was unjustified and unprovoked; that the subject dogs are dangerous dogs within the meaning of Agriculture and Markets Law.
Effective 15 December 2004, Agriculture and Markets Law and related statutes were extensively amended. First, the definition of a "dangerous dog" was expanded to include: any dog which (i) without justification attacks a person, companion animal, farm animal, or domestic animal, and causes physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons, companion animals, farm animals, or domestic animals or (iii) without justification attacks a service dog, guide dog, or hearing dog and causes physical injury or death".

Once a judge or justice determines that a dog is dangerous by clear and convincing evidence, then, pursuant to the new version of Agriculture and Markets Law, the judge or justice shall order neutering or spaying of the dog, microchipping of the dog and one or more of those provided by law as deemed appropriate under the circumstances and as deemed necessary for the protection of the public.

Once a Court determines a dog to be "dangerous", the aforementioned conditions must be imposed by the Court. In addition to these requirements, Agriculture and Markets Law continues to provide that under certain circumstances humane euthanasia or permanent confinement of a dog may also be directed. A Staten Island Personal Injury Lawyer said the statute makes it clear that prior to euthanasia or permanent confinement, aggravating circumstances must be established at the judicial hearing.
In the instant case, the Town seeks to have all three dogs humanely euthanized; emphasizes that the less drastic measures are not appropriate; contends that the injuries suffered by the complaining witness are "serious injuries" as that term is defined in New York Agriculture and Markets Law.
However, an examination of the statute reveals that none of the aggravating circumstances are present in the herein case which would justify an order directing the euthanization of the dogs.
The first aggravating circumstance is that the dog unjustifiably attacked a person, causing "serious physical injury or death".

It must be noted that serious physical injury, as defined in Agriculture and Markets Law, is "physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ". The definition of serious physical injury is essentially the same.

Based on the evidence, the court concludes that the injuries sustained by the complaining witness do not meet the threshold.

The testimony revealed that the complaining witness sustained a bite wound to his right leg, for which he was prescribed antibiotics, a small bite to his hand and missed several days of work because of the injury. There is no doubt that the complaining witness’ injuries caused him pain and suffering. The injuries were supported by the photographs presented. Nonetheless, the standard is not whether the complaining witness’ thigh and hand were injured, but rather whether those injuries rise to the level of a serious injury' as that term is defined in Agriculture and Markets Law and New York case law.

The court finds that there was no evidence that the complaining witness sustained "protracted impairment of health", a "protracted disfigurement" or a "protracted loss or impairment of a function of any bodily organ" as a result of the. Accordingly, the first aggravating circumstance has not been met.

The second aggravating circumstance is that the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death". This aggravating circumstance also was not established at the hearing. Although a witness testified that one or several of the respondents' dogs had once chased the complaining witness’ children and wife such that they ran back inside their home, that witness did not sustain any injuries as a result of that incident, let alone a serious physical injury.

Finally, the third aggravating circumstance is that the dog unjustifiably causes "serious physical injury or death to a companion animal", is inapplicable in this case.

By reason that none of the three aggravating circumstances exists in the case at bar, the Court lacks the authority to direct humane euthanasia or permanent confinement, despite its strong belief that euthanization is the appropriate remedy. Rather, the court orders that certain conditions be met for all the three dogs: that the dogs shall either be neutered or spade (whichever is applicable) and each dog shall be fitted with a microchipping device; that the dogs be immediately evaluated by a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert; that the owner of the dog shall be responsible for all costs associated with evaluations and training ordered; that there be restraint of the dogs on a leash by an adult of at least twenty-one years of age whenever the dogs are on public premises; that muzzling the dogs whenever they are on public premises in a manner that will prevent the dogs from biting any person or animal, but that shall not injure the dogs or interfere with its vision or respiration, must be observed; that the respondents take all necessary steps to comply with Agriculture and Markets which requires owners of dangerous dogs to report the presence of a dangerous dog pursuant to the General Municipal Law; that the respondents maintain a liability insurance policy in an amount of one hundred thousand dollars for personal injury or death resulting from an attack by such dangerous dog.

Caring for animals doesn’t only require feeding them, bathing, etc. It requires a great deal of responsibility; that the animal must not be a danger to the people around. To learn more of the rights that can be exercised when animals pose a certain danger to your health or safety or when an injury has already been sustained, contact Stephen Bilkis & Associates. Whether you have been hurt in a car accident, a construction accident or medical malpractice incident, contact us for help.

A man moves to dismiss the personal injury action filed against him on the ground that the action is barred by the law of limitations. A New York Injury Lawyer said the complainant cross-move the action to consolidate it against the man with another pending action arising out of the same slips and fall. The record establishes that the man is not entitled to the relief he seeks and that consolidation of the actions is appropriate.

The abovementioned actions arise out of when the complainant slip and fall on an icy walkway at a mobile home park then owned by the man. The particular lot where the complainant fell was rented by a couple. The complainant’s contend that the man, who rented the lot, was employed by the man to supervise the mobile home park. The pending personal injury action against the man was commenced more than three years after the complainants ‘cause of action accrued. The complainant also contend that because an employer-employee relationship existed between his opponents, he is entitled to the benefit of the relation back principle and that the claim against the man is therefore deemed to have been interposed when the complaint was served in the action against the man’s employee.

The man points out that he was originally named as an opponent in the complainant’s timely-commenced action but was never served and therefore, the action against him was automatically dismissed. For that reason, because the additional 120-day period had also expired, the complainants’ motion to permit expedited service on the man in that action was denied by the decision of the court. The complainant thereafter purchased a new index number, initiated a new action against the man and obtained an order permitting expedited service on man and to effect on such service.

Based on records, the automatic dismissal of the prior action against the man was not on the merits and does not preclude the new action. A Queens Personal Injury Lawyer said the ruling was designed to increase state revenue. The complainants' purchase of a new index number served the ruling purpose. The ruling was not intended to shorten the period in commencing a new action. Accordingly, the dispositive issue on the man's motion to dismiss is whether the complainants are entitled to the benefit of the relation back principle.

The complainant’s clearly knew of the man’s potential liability from the outset, for they named him as an opponent in the original action. It is equally clear, however, that the complainant did not intentionally abandon their claim against the man. According to the complainant’s counsel, service of process on the man was not in effect because the man had moved from his last known address and could not be found. In addition, the complainants' counsel learned that the man had been discharged in bankruptcy. Nevertheless, the counsel alleges that extensive nonparty discovery was conducted in an effort to ascertain whether the bankrupt and missing man had any insurance coverage on the premises which might not be protected by the discharge in bankruptcy. The counsel was finally able to determine the existence and identity of the insurer of the premises where the slip and fall occurred through the files of the insurance company. Coincidentally, a Staten Island Personal Injury Lawyer said the insurer also insures the employee of the man and according to the complainants' counsel, the employee of the man repeatedly denied that it insured the man. After discovering the existence of insurance coverage, the complainants’ attempted to proceed against the man in the original action, which was unsuccessful because of the automatic dismissal and then commenced the new action.

With regard to the cross motion, the consolidation of the two actions which involve common questions of fact is clearly appropriate. Consequently, the cross motion is therefore granted and the two actions are hereby consolidated into an action.

The New York Slip and Fall Attorneys are always ready to provide beyond ordinary defense especially when your case is within the scope of expertise. If you seek help or assistance when you or your company is in trouble because someone is claiming accident or injury against you, the New York Personal Injury Attorneys or New York Accident Attorneys at Stephen Bilkis and Associates can represent you against any lawsuit.

A coonhound mix dog attacked another dog. The owners of both dogs were neighbors residing in a side-by-side duplex. One day, the owner of the coonhound mix went out to tie up her dog in the back yard however her dog got away and attacked the complainant who was in the back yard of the duplex at that time. The complainant were not injured and managed to get away from the dog. A New York Injury Lawyer said the coonhound mix then ran around to the front of the house of the complainant’s side, where the complainant’s roommate was sitting on the porch. The coonhound mix proceeded to chase that individual into the front door of the complainant’s residence. When they got inside, the coonhound mix attacked a little dog causing life threatening injuries to it. The harm acquired by the little dog required surgery and significant follow-up veterinary care. The bills generated by the said attack were submitted to the court.

The complainant sued the owner of the coonhound mix and seeks reimbursement for veterinary bills acquired as a result of the injuries sustained by their dog. The complainant testified that she was not aware of any violent tendency of the coonhound mix nor had she ever seen the coonhound mix dog attack another animal. The facts were confirmed by the owner of the coonhound mix. The owner of the coonhound adopted the dog from a farm, which is operated by the humane society about a year before the attack. In addition, the owner of the coonhound mix presents evidence through a letter from the farm, which stated that based on paper work and conversations with staff during the time the dog was at the farm, the staff did not observe any aggression towards other dogs. The owner of the coonhound mix also testify that since she had a baby, the behavior of the dog changed in which she observed him bark and growl from time to time. She further testified that the dog was not very obedient.

Based on records, the state recognizes a reason of action which imposes strict liability or no proof of negligence necessary upon owners for injuries inflicted by their violent dogs, the owners which have knowledge thereof and viciousness being defined as prior bites and mischievous tendency. A Staten Island Personal Injury Lawyer said in common law negligence, the instant case of the owner of the coonhound mix failed to maintain control of their dog. As to the testimony indicated, the court stated that there is no merit to the contention of the complainant that she may assert a common law negligence reason for action against the owner of coonhound based upon the failure to secure the dog properly, without having to prove that the dog had violent tendencies of which the owner was aware. Liability is not dependent upon proof of negligence in the manner of keeping or confining the animal, but is predicated upon the owner's keeping of the animal, despite his knowledge of the animal's violent tendencies.
The court finds that the case conflict, between the substantive law, as established by the case law defining the liability of a dog owner or custodian under theories of strict liability and common law negligence and the concept of substantial justice, is resolved by the dangerous dog provisions of the agriculture and markets law.

In the instant legal action filed, the complainant established that the harm sustained by their dog, were caused by the coonhound mix. A Suffolk County Criminal Lawyer said the complainant further established that the veterinary bills generated by the attack were in the amount of $1,167.95. For such reason, the court finds that the owner of the coonhound mix is liable to the complainant in accordance to agriculture and markets law. The decision shall enter in favor of the complainants and against the owner of the coonhound.

Attacks from either another person or an animal would cause great amount of distress. When you become a victim of an attack and would want to be represented by effective lawyers, consult a NY Dog Attack Attorney. Whether you have been involved in a dog attack, premises liability or a medical malpractice action, contact Stephen Bilkis and Associates for a free consultation.

The defendant third-party plaintiff-respondent in the case is the Waltco Truck Equipment Company. The plaintiff is Mark Mandel. The Coca-Cola Company is a third-party defendant, while the Industrial Truck Body is a third-party defendant-respondent.

Court Memo

A New York Injury Lawyer said an appeal was filed by the plaintiff to recover damages for personal injuries. On September 3rd, 1996, the Kings County Supreme court granted the motion by Waltco Truck Equipment Company, and Industrial Truck Body, the defendant and a third party defendant, to dismiss the initial complaint based on the non-compliance of the plaintiff with CPLR 306-b. The summons, complaint and affidavit of service included in the cross motion was denied.

Results

The order is confirmed according to the appeal, including costs. Allegedly, the plaintiff sustained injury when working for the third party defendant, the Coca-Cola Company. Pre-action discovery started in 1992 when Mandel purchased Index No. 3926/92. On March 29th of the following year, the Waltco Truck Equipment Company was served with a summons and complaint of that number, after which Waltco initiated third-party action against the third-party defendants in the case.

The complaint lodged under the original index was filed with the Supreme Court, Kings County, on August 4th of 1994 under Index No. 24909/94. No summons or complaint was reserved, but the proof of service from the original summons and complaint made against Waltco in1993 was filed.

The complaint was moved for dismissal by Industrial Truck Body, a third-party defendant, and Waltco. They based this move for dismissal on the claim that CPL 306-b had not been adhered to. The Supreme Court granted this motion. A cross motion by the plaintiff to file the summons and complaint nunc pro tunc was also denied by the Supreme Court, correctly.

CPLR 306-a requires that a plaintiff has to purchase an index number and file their complaint with the court's clerk in order to commence any action. Poley Paving Corp. V. United Cerebral Palsy Association of Sullivan County sets a precedent which shows that a personal injury action that is a new action against a second party rather than an adjunct of the pre-action discovery requires that CPLR 306-a must be complied with. This means that the plaintiff needs to again file a complaint and summons with the clerk while also purchasing a new index.

In the case of Mr. Mandel, these requirements were not met. The plaintiffs did not correctly follow the guidelines set out. A Queens Personal Injury Lawyer said the initial process served in March of 1993 was a nullity. Action against Waltco did not begin until index No. 3926/92 was filed.

The commencement of the action could not be waived despite the fact that jurisdictional defenses were not raised by Waltco. The Matter of Fry V. Village of Tarrytown is relevant, although some differences are apparent. The filing fee in the case at bar was not paid before the process was served. The summons and complaint were also not properly filed with the clerk. In the case of Matter of Fry, the papers filed were the problem, whereas the fee was properly paid which satisfied the principal interest of the court.

A Staten Island Personal Injury Lawyer said nunc pro tunc relief was requested based on the purchase of the August Index number, but as the action had not been initiated properly at the outset, there was in effect no action which nunc pro tunc would be applicable to.

In August of 1994, the action began properly when an index number was properly purchased and the summons and complaint were properly filed. The affidavit of service that was filed with the court referred to papers that were not properly filed, which results in the summons and complaint not being served to Waltco. The action was dismissed because proof of service wasn't filed until beyond 120 days of the initial filing of summons and complaint.

When a legal difficulty arises, whether from a car accident, construction accident or medical malpractice issue, Stephen Bilkis & Associates can help you understand what options you have available to you. Our team will work carefully with you to ensure that your interests are protected in your specific circumstances. Offices are located through the metropolitan New York area, and you may call us at any time to receive a free consultation on your case.

In New York, the laws that cover an attack by a dog on a person or other animal are handled in civil court as a motion to recover damages. A New York Injury Lawyer said in a situation where a dog has bitten a person, the dog is usually tied up or on a leash and a stranger approaches it. It is important to note that the dog is almost always considered at fault in this type of encounter even though the person had to approach the dog and not the other way around.

However, it is never a good idea to leave a dog chained or tied without a fence around them. People are often attracted to dogs and are known to approach them. No one should approach a strange dog, especially when the dog is tied and cannot retreat. Most cornered animals will turn and fight. A tied or chained dog is no exception. In some cases, an owner of a vicious dog uses poor judgment. One particular case demonstrates several issues.

In this case, a dog owner often left his dog chained in the back yard. The chain was attached to a stake in the ground, and there was no fence around the back yard. The dog was known to grown, bark and lunge to the end of his chain if anyone came in to the backyard. A Staten Island Personal Injury Lawyer said on one occasion, the dog’s owner told one of his neighbors to stay away from the dog because it was known to bite. On June 26, 1986, a child approached the dog and was bitten. It is critical to note that at the time of the attack, the dog was on a chain and was in his own back yard. Thus, the child who was bitten had ventured on to the property that was owned by the dog’s owner and gone into the reach of the dog who was secured by a chain.

The trial court that the case was presented to dismissed the case because they stated that the child’s lawyer had failed to make a prima facie case to establish a complaint. On appeal, the verdict was overturned and the Supreme Court advised that they felt that the complainant had provided sufficient evidence that the dog was vicious. This was proven by the dog’s proclivity to growl, bark and lunge to the end of his chain at people. They also felt that the case was proven that the owner of the dog knew that the dog was vicious. The neighbor who was warned to stay away from the dog because it bites proved this. The Supreme Court maintains that the evidence established that the dog was vicious and the owner knew that it was, so the dog should have been maintained in a manner that would protect the public from the dog.

The question remains, that if the dog was chained in the owner’s back yard, was it a danger to the public? If the child was trespassing on the property of the owner and was bitten by the owner’s dog, is it the owner’s fault? Unfortunately, the days of being able to protect your own property are being threatened. This case is only one of several. Some have even been brought when a homeowner’s dog bit a man possessing burglary tools. The man had climbed a fence into the backyard of the home in order to break in to it. The owner’s dog was on a chain inside the fenced yard in the middle of the night when he bit the burglar. A Queens Personal Injury Lawyer said the burglar filed suit against the homeowner and won. If you are a dog owner facing charges because someone trespassed on your property and approached your dog, you need an attorney to represent you.

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Dog ownership is a serious commitment that is often misguided. Pet stores have made it easy for people to purchase puppies without having any knowledge of their breeding, background, or breed characteristics. Unlike reliable certified breeders, who inquire about the person’s knowledge of the breed and facilities to maintain large breeds, pet stores do little if anything to ensure that the purchaser is able to care for the dog. Many pet stores carry “bully breed” dogs. They sell them without providing the purchaser with any warnings about what the breed was originally bred for. All domesticated dogs were specifically bred to handle a need among people. Some breeds were bred specifically as guard dogs and as such were bred not to form as close a bond with people as other breeds.

People may purchase a large breed puppy because it is cute and has wrinkles, but in some cases, they might as well bring a loaded gun into their homes. A New York Injury Lawyer said more people are purchasing breeds like the Neapolitan Mastiff and others, which were bred to be guard dogs. These people think that they can make the dog a gentle pet. These dogs need exercise and they need a job. They were never intended as pets.

On February 8, 2008, a little girl went to her brother’s fiancée’s house to spend the night with her brother and his future bride and her daughter. That night, she played with the three dogs that belonged to the family. One was a 125-pound Neapolitan Mastiff, the second dog was a Golden Retriever, and the third was a Maltese which weighed less than ten pounds. The following morning, she went into the living room to say good-bye to the dogs. She grabbed dogs by the face, put her face up to theirs and kissed their noses. When she got to the Mastiff, she was sleeping. The child grabbed the sleeping dog’s face and pressed her face to the dog’s face. The dog was startled and leapt up. The dog’s foot hit the child in the face, causing a deep cut that required stiches. The child fell over the ottoman and struck her face on the coffee table which caused her to break her nose. The dog never growled, barked, bared its teeth, or bit the child. In fact, the dog was so terrified by the attack that she retreated to the kitchen and hid.

One month later, the dog bit a friend and the owner’s put her down because they were afraid that she would hurt someone else. A Queens Personal Injury Lawyer said they advised that they had purchased the dog from a pet store. They were unaware of the reputation of the breed and had no knowledge that they were considered guard dogs and not family pets. They had not gotten the dog any formal training and had not consulted a professional about any breed specific issues that Neapolitan Mastiffs might have. They had never cautioned the child when she came to visit that you should not sneak up or startle a dog.

They never told the child to be cautious of the dog, because they did not have any idea that the dog might have any proclivity to cause harm. The plaintiff, the child’s mother, claims that the fiancée who owned the dog, should have known about the breed before she purchased it. Further, the dog was quite large, common sense would be to restrain it when a small child is around. At the very least, the child should have been cautioned about going face to face with any dog. A face to face greeting is a threat to a dog. A Staten Island Personal Injury Lawyer said they are likely to react toward the human who exhibits this behavior in much the same fashion that they would if a dog threatened them in that manner.

The court finds that the dog acted in a normal dog like manner. The dog was large and struck the child with a foot. There was no indication that the dog had any vicious tendencies. The motion by the defendant owners of the dog was granted in that they were given a summary judgment dismissing the complaint against them.

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The plaintiff in this case is the New York County Lawyers’ Association. The defendant in the case is the State of New York.

The Case

A New York Injury Lawyer said this is a bench trial case that is seeking a declaratory judgment and a permanent injunction as to whether or not the state of New York’s failure to raise the rates of compensation for assigned counsel violates the statutory and constitutional rights of an individual to gain effective and meaningful representation. The plaintiff in the case, the New York County Lawyers’ Association is seeking an increase of the rate of compensation for both in court and out of court work for assigned counsel.

Court Opinion

In the opinion of the court, the evidence that has emerged from this case shows the reality of indigent adults and children suffer from in Criminal Court, Family Court, and Criminal Term of the Supreme Court. The Court feels that these individuals are at an unreasonable risk to be subject of a process that is not swift or deliberate, and fails to confirm reliability and confidence in our legal system.

It is felt that the “True Administration of Justice is the Firmest Pillar of Good Government” and that the courts in the state of New York cannot be held true to this statement of George Washington when the most vulnerable people in our society are appearing in courts without advocates to defend or champion their cause. The procrastination of the legislative and executive branches has created a crisis in the assigned counsel field and thus has impaired the ability of the judiciary system to function properly.

It is felt that the state of New York has continuously ignored their constitutional obligation to the underprivileged by failing to raise the compensation levels for assigned counsel. This has resulted in many cases counsel being denied or a delay in the appointment of counsel. Additionally, this has lead to these individuals having legal representation that is less meaningful and effective.

Evidence has shown that the rate for assigned counsel had an initial set rate of $15 per hour for in court work and of $10 per hour for out of court work. The amount was increased in 1978 to $25 for in court work and $15 for out of court work. The final rate increase occurred in 1985 where the amounts were increased to $40 and $25. A Queens Personal Injury Lawyer his increase was nearly 20 years ago and is not longer effective.

Court Ruling

In this particular case the Court finds that the failure of the state of New York to raise the levels of compensation for assigned counsel does, in fact, violate the statutory and constitutional right of an individual to have effective and meaningful representation. The Court rules this that beyond a reasonable doubt, this failure of raising compensation obstructs the judiciary’s ability to function.

Based on this evidence, the Court rules that the rates for assigned counsel be raised to $90 per hour. A Staten Island Personal Injury Lawyer said there is to be no distinction given to in court or out of court work and there are no ceilings for the total compensation per case. This rate will be applied to all assigned counsel and will not be subject to change until the Legislative branch of the state takes over the issue at hand.

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A New York Injury Lawyer said on 30 January 2007, at approximately 11:30 PM, New York City Children's Services (hereinafter "NYCCS") removed the subject children (child-one and child-two) from the care of the respondents without a court order pursuant to Family Court Act.

On 1 February 2008, NYCCS filed abuse petitions against both parents, respondents.

The petitions allege that, on or about 30 January 2007, respondent father inflicted excessive corporal punishment on child-one causing marks, bruises and two black eyes (head injury). Further, the petitions allege that in November 2007, respondent father hit child-one with a belt in the face causing bruising. In addition, the petitions allege that respondent mother failed to provide adequate care and supervision for child-one by allowing respondent father to remain in the home with the children after November 2007 when she learned that he had beaten child-one. Finally, the petitions allege that child-two is a derivatively abused and neglected child by virtue of the abuse of child-one. (The respondent-father is the father of child-two but not child-one.)

Was the respondent-father a person legally responsible for the care of the child-one?

In determining whether a respondent is "person legally responsible" under the statute, the court must consider such factors as the frequency and nature of the contact between the child and the respondent, the nature and extent of control exercised by the respondent over the child's environment, the duration of the respondent's contact with the child, and respondent's relationship to the child's. A respondent will be deemed a "person legally responsible" even if he is not a parent, where, as here, he periodically resided in the same household as the child and was otherwise found at regular intervals in the same home and was involved in the ongoing care of the child.

In the instant case, child-one resided with respondent father for extended periods prior to the time the petitions were filed. During those periods, he was repeatedly found in the same household as the child and was involved in child-one’s daily care, supervision and discipline. He cared for her when respondent mother was not home. She called him "Daddy." A Staten Island Personal Injury Lawyer said respondent father testified that during 2007, the parties resided together with both children at the homes of various family members, including the maternal grandmother and the paternal grandfather. The Court finds these facts sufficient to establish that respondent father was a "person legally responsible" for the care of child-one.

Did NYCCS establish a prima facie case of neglect against respondent-father?

A parent or person legally responsible is liable for the abuse of a child pursuant to Family Court Act when they inflict or allow to be inflicted upon such child, physical injury (or personal injury which may also arise from a birth injury or medical malpractice, etc.) by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or create or allow to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or the protracted impairment of physical or emotional health or the protracted loss or the impairment of the function of any bodily organ.

On the other hand, the Family Court Act defines a neglected child as "one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of (respondent) to exercise a minimum degree of care". A Suffolk County Personal Injury Lawyer said the physical impairment referred to involves a lower threshold of resultant harm than the serious physical injury required in abuse cases.

In the instant case, NYCCS is not required to prove a course of conduct. It is well-settled that a single incident may be sufficient to establish neglect where a parent fails to exercise reasonable care and as a result the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired. This is particularly true where the parent was aware or should have been aware of the intrinsic danger of their actions and the situation. (The allegations of abuse were dismissed.)

Did respondent-father neglect child-one?

It is the view of the herein Court, that the actions of the respondent-father were inconsistent with how a reasonable and prudent parent would have acted under the circumstances and that, as a result, the child's physical, mental and emotional condition where impaired or placed at imminent risk of impairment; sufficient to establish neglect based on excessive corporal punishment. A reasonably prudent parent under these circumstances would not have struck a three-year-old child with a belt with sufficient force to leave marks. Even if the Court were to accept respondent's assertions that he hit the child with the belt in the face by accident and that he only meant to hit her on the hand, the result would be the same since the force used was excessive and it resulted in marks on the child's face and fear of respondent father. In addition, the risk that a three year old would move when she is threatened with a belt and therefore sustain bruising on some other part of her body is something that respondent knew or should have known was one of the inherent dangers of hitting a small child with a belt.

Did respondent-mother neglect child-one?

In the instant case, respondent mother was out of the home in November 2007, when respondent father hit three-year-old child in the face with a belt leaving a mark. Upon her return home, both respondent-father and child-one told her about what happened. Despite that knowledge, she failed to take any action to protect child-one and ensure that respondent father did not strike her again.

Furthermore, when respondent mother was first interviewed by NYCCS, she denied that the 2007 incident had taken place. Likewise, when child-one was first interviewed, she was reluctant to reveal what had happened. She told the caseworker that it was "a secret" and that "Mommy told me not to tell the truth." Respondent mother did not testify at the fact-finding hearing. Accordingly, the Court draws the strongest negative inference against her that the evidence will permit, that is, that she realized child-one was at risk when she was with respondent father but failed to immediately take the necessary steps to protect her.

Since the allegations of abuse by respondent-father have been dismissed, the allegations that respondent-mother failed to protect child-one from abuse are likewise dismissed. Nevertheless, pursuant to Family Court Act, the Court amends the petitions to conform to the proof and enters a finding of neglect against respondent mother pursuant to Family Court Act based on her failure to take appropriate steps after the November 2007 incident to protect her daughter from future acts of excessive corporal punishment inflicted by respondent father.

Did NYCCS establish a prima facie case of derivative neglect against respondent-father as to child-two but not against respondent-mother?

Family Court Act provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of the respondent. Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding may be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care, thereby making such a child neglected under Family Court Act.

Nevertheless, although the statute requires that evidence as to the neglect of one child be considered on the issue of the neglect of another child in the home, such evidence is not conclusive and does not establish a prima facie case of neglect of another child in the parent's care. In other words, the fact that one child has been neglected, standing alone, is insufficient without more to support a finding that the child's sibling is also neglected.

The determinative factor is whether the nature of the neglect, notably its duration and the circumstances surrounding its commission evidences such a fundamental flaw in respondent's understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists. Unless the underlying finding provides a reliable indicator that the sibling's physical, mental or emotional condition is in imminent danger of becoming impaired a finding of derivative neglect cannot stand.

After examination of the evidence presented, the Court concludes that respondent father derivatively neglected child-two, although respondent mother did not.

On the father’s neglect, the Court has considered that the underlying neglect is based on acts of commission by respondent father; the excessive corporal punishment inflicted by respondent father upon the three-year-old subject child was fairly serious and in response to minor infractions; the punishment inflicted by respondent father was not an isolated incident but a pattern that he believed was justified; respondent father introduced no evidence of his rehabilitation during the period prior to the conclusion of the fact-finding hearing and that he still has not addressed — let alone overcome — the problems that led to the filing of the original petition; and respondent-father, at the time that the fact-finding concluded, had not even started parenting skills or anger management — let alone completed them. Accordingly, even without direct evidence of neglect as to child-two, the Court finds that her physical, mental or emotional condition are at risk of impairment while she is in the care of respondent father.

On the mother’s neglect, NYCCS has failed to introduce sufficient evidence to establish a prima facie case of derivative neglect. In reaching this conclusion, the Court has considered that the underlying neglect by respondent mother is not based on her physical or sexual abuse of the child; not based on her inflicting excessive corporal punishment; not based on a course of conduct; instead, it is based on a limited incident when she failed to protect child-one from further acts of corporal punishment despite her knowledge of the November 2007 incident.

In other words, the circumstances surrounding the original neglect do not evidence a fundamental flaw in respondent-mother's understanding of the duties of parenthood. Although respondent-mother's conduct toward her daughter child-one fell below a minimum degree of care when she failed to take action to protect her after the November 2007 incident, her conduct on that occasion is not a reliable indicator that any other child in her care is at imminent risk of impairment. Indeed, the evidence adduced is to the contrary and the Law Guardian supports the dismissal of the derivative allegations. The mother's failure to testify is insufficient to establish derivative neglect since the underlying finding does not provide a reliable indicator that child-two’s physical, mental or emotional condition is in imminent danger of becoming impaired.

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A dermatologist was pregnant. Three weeks before she gave birth, dermatologist reported to her obstetrician that she had been experiencing abdominal pain, vomiting and she could not hold any food down. The woman had lost weight during the last few weeks of her pregnancy instead of gaining weight.

A New York Criminal Lawyer said the dermatologist was diagnosed with an infected gall bladder and gall stones at the time that she delivered her baby. The obstetrician claims that the mother made no such complaints to her. She claimed in her deposition that the pregnancy proceeded uneventfully.

The dermatologist had to undergo a cesarean section. In the delivery room, the circulating nurse noted on the chart that the amniotic fluid was clear. The obstetrician made a handwritten note on the margin of the delivery report that there was no meconium present. An intern at the neonatal intensive care unit where the child was transferred after his cesarean delivery noted that meconium was present.

The dermatologist, however, insisted that when the baby came out, it was covered with thick brown goo. The dermatologist claims that her gall bladder infection and her gall stones which the obstetrician failed to diagnose in time caused her baby to be distressed. The baby’s distress caused it to pass meconium while still in the uterus and this is what caused the child to have breathing difficulties. The dermatologist claimed that her baby had aspirated the meconium into his lungs because of the prolonged distress he suffered.

After the baby was extracted from the mother, the doctor had to ventilate the baby. A Queens Personal Injury Lawyer said the baby was bluish, pale and could not breathe well. The baby’s mouth had to be suctioned but they also felt the urgency to use four kinds of suctioning procedures in order to remove as much fluid from the baby for fear that the child had ingested or aspirated something. The only kind of suctioning that the staff at the hospital did not do is the endotracheal suctioning. The dermatologist insisted that had the staff performed this deep kind of suctioning, they would have removed the fluid or meconium which eventually got aspirated deep into the right lung of the baby.

Days after the child had been delivered; he still had difficulty breathing so the doctors ordered an x-ray. The x-ray indicated some sort of growth which the pulmonologist suspected as a tumor or cyst. The pulmonologist suggested that a CT-scan be performed on the child.

A CT-scan requires the child to be immobile during the procedure. So the radiologist informed the dermatologist that her baby will have to be anesthetized during the CT-scan. The dermatologist expressed concern about using general anesthesia on the baby because the baby was already having breathing difficulties. The radiologist agreed to try to get the baby to sleep without general anesthesia but if she cannot then she will have to use the anesthesia Propofol. The radiologist went ahead and intubated the baby so that he received oxygen directly into his lungs during the CT-scan. When the scan was almost over, the baby started having seizures. The radiologist gave the baby another dose of the Propofol instead of giving the baby Phenobarbital which is the usual first aid to stop seizures. The baby was not given Phenobarbital until the baby was returned to the neonatal intensive care unit and had another seizure there.

Later the baby was diagnosed to be blind, suffering from cerebral palsy, brain damage and lung damage. A Staten Island Personal Injury Lawyer said the dermatologist sued the obstetrician for medical malpractice and negligence. She claimed that her failure to treat her gall bladder infection distressed her baby and caused it to pass meconium while it was still in her uterus. The dermatologist sued the hospital for medical malpractice and negligence for the failure of its staff to remove the meconium the baby had aspirated and for not effectively suctioning out the meconium but instead, driving it deeper into the baby’s lungs.

The dermatologist also sued the pulmonologist who recommended the CT-scan for medical malpractice and negligence: he failed to properly diagnose the problem with her baby’s lungs. She also sued the radiologist who performed the CT Scan for medical malpractice and negligence. She blamed the radiologist’s use of anesthesia on a child who was less than a month old. She blamed the radiologist for aggravating the child’s brain injury when the anesthesia she used caused the seizures.

The hospital filed a motion for summary judgment asking that the complaint be dismissed seeing as there is no proof that it was negligent in its care of the child or that in their treatment of the child they deviated from accepted medical procedure.

The doctors also moved for a Frye hearing. They question the dermatologist’s theory of how her baby got injured and they also question whether her complaint sufficiently establishes their liability.

With numerous affidavits of experts, the Supreme Court ruled that there are material issues of fact that have to be tried before a jury. These issues of fact include: whether the baby passed meconium at birth; whether the baby aspirated meconium; whether the baby’s seizures were caused by the anesthesia used; whether the anesthesia used caused more seizures to occur; whether the seizures exacerbated the baby’s brain injury.

The Court ruled that sufficient cause was raised in the complaint, which if proved, could render the doctors liable for medical malpractice and negligence.

A New York City Medical Malpractice attorney must prove that the doctors and the hospital sued were negligent. A NYC Medical Malpractice lawyer must also prove, in the alternative, that while treating your child, they deviated from accepted medical practices. At Stephen Bilkis and Associates, their NY Medical Malpractice attorneys will assist you in assessing whether the facts of your case can sustain a complaint for medical malpractice. Call Stephen Bilkis and Associates, speak with any of their New York Medical Malpractice Lawyers and begin the process of claiming just compensation for the injury your loved one sustained.

A fourteen-year-old plaintiff, by and with her father, sues the hospital and physician who treated her at birth and for a period thereafter for injuries sustained in the first weeks of her life. Only two pounds, eight ounces at birth, she is today a healthy teenager with an above-average I.Q.; however, she is totally blind (blindness) as a result of retrolental fibroplasia (RLF) disease, which plaintiffs argue was caused by the administration of excessive amounts of oxygen over her first thirteen days (birth injury or birth injury accident). The complaint alleges medical malpractice and lack of informed consent.

Up until the mid-1950's it was accepted medical practice to administer quite liberal doses of oxygen to premature infants to prevent death or brain damage. Research of this period ultimately showed, however, that prolonged and high concentrations of oxygen in an incubator (over 50%) led to the certain development of RLF. Thus, by the time of plaintiff's birth, in May of 1970, it was well-established that oxygen should only be applied to counteract respiratory problems and cyanosis in premature infants, as exhibited by plaintiff, and then only at relatively low percentage-volumes and for only brief periods.

A New York Injury Lawyer said at trial, evidence showed that plaintiff was subjected to concentrations of oxygen between 31-40% over a thirteen-day period. This proof permitted a finding, based also upon the opinion of plaintiff's expert, that this continuous use of oxygen caused her RLF. However, there was also an abundance of evidence that without any oxygen, plaintiff would have died or suffered brain damage.

Was the oxygen given to plaintiff administered improperly so as to make out a claim of medical malpractice?

The jury found no departure from accepted medical or hospital practice as it existed by either the hospital or the attending pediatrician.

The court now addresses the issue on lack of informed consent.

The testimony presented showed that the attending physician never informed plaintiff's parents about the risks of oxygen use nor, specifically, the possibility that blindness might result. Accordingly, neither was there any discussion of the range of percentage-volume and duration of oxygen therapy possible. A Queens Personal Injury Lawyer said given the complexity of factors and outcomes in treating a grossly underweight and premature infant, the issue of lack of informed consent was clearly not reducible to whether, if so informed, the parents would have been forced to choose between death and blindness.

Were the infant's parents adequately and reasonably informed and based on that, did they give their consent to the procedure and treatment undertaken?

Whether an action for lack of informed consent is viewed as a malpractice action based on negligence or as a malpractice action based on common law principles of assault and battery, it is nevertheless a tort action and requires proof of a causation relation between the defendant's disputed conduct and the resulting injury to plaintiff. A Staten Island Personal Injury Lawyer said an an action raising lack of informed consent there are two separate causation elements: the "but for" and the proximate cause elements.

Upon finding that a doctor has failed to adequately inform the patient of the attendant risks of and alternatives to a medical procedure, the question now is whether the treatment would not have occurred "but for" the doctor's failure to inform properly. This "but for" relation is established when a reasonably prudent person in the patient's position would not, if fully informed, have consented to the treatment.

Once the "but for" relation is established, and it is concluded that the treatment would not have taken place, a second inquiry is then directed at whether the injury in fact resulted from the disputed treatment, for there can be no recovery without actual damages to the plaintiff. This is the proximate cause element.

Whether the treatment in question had the effect of producing plaintiff's injury and whether reasonable men would regard the treatment as the cause of the injury, it must be proven that no fully informed reasonable person would consent to the treatment and that the plaintiff in fact suffered an injury which medically was caused by the treatment.

Unquestionably, it is impossible for a lack of informed consent to cause a physical injury. The parent's lack of knowledge about the risk of the treatment did not cause that risk to materialize. Rather, it is the administration of an unconsented treatment which may cause injury. Unfortunately, a literal interpretation of the instruction would require the impossible: that the lack of informed consent must proximately cause the blindness.

Given the complexity of the issue of lack of informed consent and the court’s inability to conclude that the ultimate verdict by the jury of the lower court was based on a correct application of the relevant legal principles, the court reverses and remands the case for a new trial, but on such cause of action alone.

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The plaintiff in this case was the Legion Insurance Company, while Abraham Weiss was the respondent.

Appeal

This appeal is in regards to another action. The original case is known as Jordan v Weiss. This case was a personal injury claim filed in the Supreme Court of Kings County. It was identified by Index Number 46083/99. The appeal is a request for a summary judgment that would remove any obligation on the part of the plaintiff to defend and indemnify Mr. Weiss in the previous personal injury case. A New York Injury Lawyer said originally, the defendant’s motion for summary judgment had been granted, while the plaintiffs cross motion for a ruling in its favor had been denied.

Ruling

The initial order issued by the Supreme Court in Kings County is affirmed during the appeal. The case is returned to the Kings County Supreme Court so that a judgment can be logged which states that Legion Insurance is legally obligated to defend the defendant. This also extends to the responsibility to indemnify the defendant should such be necessary. A Staten Island Personal Injury Lawyer said this ruling applies to the previous case in question. Jordan v Weiss (Index Number 46083/99) is the case in which Legion must now defend Mr. Weiss when it resumes in the Supreme Court.
Insurance Law.

The person injured in a personal injury lawsuit or the insured person is entitled to make an insurance claim to the issuer of a policy according to Insurance Law 3420 (a)(3). There is a further section found in Insurance Law 3420(d) which allows the provider of insurance to disclaim coverage. However, in order to do so, a written notice that provides the terms of the disclaimer must be issued within a reasonable time-frame.

Such a disclaimer cannot be general however. Instead, it must be extremely specific in telling the claimant which terms apply to the disclaimer of coverage. A Queens Personal Injury Lawyer said that in this case, the only basis for the lack of coverage was defined by the fact that Mr. Weiss didn’t notify the insurer of the claim. Since the person who was injured, rather than Mr. Weiss, was the party to give notice of the claim, this disclaimer cannot apply.

This means that legion cannot use the late notice of the injury claim as a reason to deny coverage to the defendant, as this provision was not accounted for in the disclaimer of the insurance.

This is why the Supreme Court was correct when it initially claimed that Legion Insurance must defend Mr. Weiss in the case of Jordan V. Weiss.

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The plaintiff in this case was Augustin Lopez. The defendant was Mark Senatore.

The Appeal

The appeal in this case was filed in regards to an initial ruling made in January of 1983 by the Supreme Court of Kings County. The original case was a negligence action that sought to recover damaged as a result of damage to property and personal injuries sustained by the plaintiff. A New York Injury Lawyer said the Supreme Court denied the plaintiff's motion for a partial summary judgment. A cross-appeal was filed by the defendant that requested the action dismissed based on the claim that any injuries did not meet the requirement of serious injury. This cross-appeal was abandoned.

The defendants were granted a summary judgment on the first cause of action regarding the recovery of damaged for personal injuries. The plaintiffs were also granted a partial summary judgment on the second cause of action. This entailed recovery for damaged sustained by property. Further proceedings consistent with this were remitted to the Kings County Supreme Court.

History

The original incident in the case took place when the defendant's car backed into the plaintiff's parked car. The plaintiff was in the parked car at the time of the accident. The plaintiff initially sought damages for the property damage done to the automobile and for injuries that he sustained.

A summary judgment regarding liability was requested by the plaintiff. The defendants referred to subdivision 4 of section 671 of the Insurance Law, claiming that the requirements for serious injury were not met. As a result, they cross-moved that the action. The initial motion and subsequent cross-motion were both denied.

Summary Judgments

Summary judgments are only offered when certain criteria are met. A Queens Personal Injury Lawyer said the mover for a summary judgment must submit admissible evidence that proves that court should clearly judge in his favor. It is important to note that even after the initial cross-motion to dismiss the complaint was denied, that a summary judgment could still be offered in favor of the defendant. This could occur if the record is searched in the process of reviewing the denial of the plaintiff's request for a summary judgment and evidence is found which indicates that a summary judgment is appropriate for the defendant instead.

Insurance Law

The applicable section of the Insurance Law says that non-economic loss caused in a motor-vehicle accident can only be obtained if “serious injury” has occurred. Serious injury is defined by subdivision 4 section 471 of the Insurance Law.

Serious Injury

Upon review of the case, it appears that the plaintiff was unable to prove that “serious injury” occurred. An affidavit offered by the plaintiff's doctor fails to establish enough permanency of the injuries to qualify them as serious as defined in insurance law.

Results
1. As a result of the failure to establish serious injury, the defendant's deserved summary judgment against the initial action cause which aimed to recover damaged based on the injuries sustained by the plaintiff.
2. Summary judgment was granted to the plaintiff on the basis of property damage. Because the plaintiff was parked, his conduct was not an issue in the case. A Staten Island Personal Injury Lawyer said the defendant, on the other hand, was operating the vehicle in a matter that falls beneath the acceptable standards for care. No conflict in the evidence emerged which would prevent a summary judgment.

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The plaintiffs in the case are Norris A. Calliste and Javaka Brown. The defendant in the case is Claude Williams. The case is being heard in the Supreme Court of Kings County.

Plaintiff Argument

The plaintiff’s action in this case is based on personal injuries that were sustained when they were involved in a car accident. The verified complaint that has been issued by the plaintiffs states that they were passengers in a car that was owned and operated at the time of the accident by the defendant, Claude Williams. The car was traveling on the Belt Parkway in Queens County at the time the accident occurred. Both plaintiffs sustained serious injuries when the car driven by Claude Williams collided with a vehicle on the overpass.

The plaintiffs offer 18 different exhibits in the case labeled A through R. The exhibits offered by the plaintiffs include copies of the depositions that were given by both the plaintiffs on the 18th of August. Additionally, said a Staten Island Personal Injury Lawyer, the exhibits offer medical reports from Flatlands Medical and hospital reports from Jamaica Hospital.

Defendant Argument

A New York Injury Lawyer said the defendant is seeking a motion of summary judgment in the case to dismiss the complaints filed against him. His request is pursuant to CPLR 3212, based on the fact that the injuries the two women sustained do not qualify under the “serious injury” clause of the insurance laws.

The motion papers offered by the defendant include eight exhibits, labeled A through H. Exhibit A is a copy of the verified complaint and the summons. Exhibit B is a copy of the answer provided by the defendant. Exhibit C is a copy of the verified bill of particulars. Exhibit D is a copy of the deposition given by Calliste on August 18, 2010. Exhibit E is the affirmed report of the orthopedic examination that was given to Calliste by Dr. Allen J. Zimmerman. Exhibit F is a copy of Brown’s deposition that she gave on August 18, 2010. Exhibit G is a copy of the document that allows the plaintiff Brown to return to work. Exhibit H is the orthopedic examination as given to Brown by Dr. Allen J. Zimmerman.

Case Results

In a case such as this, for a summary judgment to be granted prima facie must be made to prove clearly that there are no triable issues of fact.

In a case involving insurance, insurance law states that any action by a person who is covered by the policy that involves personal injuries that rise from negligence on their behalf when operating a vehicle will not be eligible for the recovery of non-economic loss, except in situations of “serious injury.”

In the motion to dismiss the case made against the defendant by Calliste, it is found that Calliste did not in fact sustain serious injuries from the accident. A Queens Injury Lawyer said for this reason, the defendant’s motion for the case to be dismissed is granted.

In the motion to dismiss Brown’s case against the defendant, it is found that the plaintiff did in fact sustain serious injuries from the accident. For this reason, the court must deny the defendants motion for summary judgment dismissing the complaint made against him.

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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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The plaintiffs in the case are La Cara Mia Bar Lounge Inc. The defendants in the case are Great Locations, Inc.

Plaintiff Argument

The plaintiff is seeking an order in the case to grant it preliminary injunction pursuant to CPLR 6301, staying that the prosecution of a non-payment summary proceeding that was first heard in the District Court of Nassau County and titled Great Locations versus La Cara Mia. The plaintiff also seeks to deny the defendant from initiating any other proceedings against them including evicting the plaintiff from the premises that are the subject of the instant action.

The plaintiff states that he is entitled to a preliminary injunction as he is likely to be meritorious in this action and will suffer irreparable harm absent the injunction and the prejudice that he will suffer without the injunction outweighs the prejudice to the defendant if the injunction is granted. A New York Injury Lawyer said there are no arguments submitted that support consolidation.

Defendant argument

The defendant opposes the instant motion, but does not offer any argument as to why. The defendant cross moves and seeks an order that will dismiss the action based on documented evidence. The defendant argues that the dismissal is warranted because of the plaintiff’s cause of action, fraud, and evidence supported by documents in the case. The defendant also seeks to change the venue of the case as the action involves real property and is governed by CPLR 507, which fixes the proper venue of the case in the county where the property at issue is located.

Case Results

The Court has denied the plaintiff’s motion and the defendant’s cross motion. The following reasons are given by the court for denying both motions.

The first cause of action is for lease recession and unjust enrichment. A Staten Island Personal Injury Lawyer said the plaintiff claims that it is a tenant within the building owned by the defendant and that the defendant stated that the location could be used as a restaurant or bar immediately. The defendant was informed that the Liquor Authority had issued a prescription which barred the use of the premises as a bar until at least June of 2009 and they withheld this information from the plaintiff.

The second cause of action alleges unjust enrichment and is premised on the same facts as listed above.

In opposition to the instant motion and supporting the cross motion, the defendant submits a document titled “Agreement to pay outstanding debt” the document is an agreement between Curtis and Agramonte and states that Agramonte agrees to pay Curtis, arrears that were owed by Cecilio Almonte and a new lease would be executed.

In this particular case the Court has found that the motion by the plaintiff to combine the instant action and the summary proceeding is denied. A Queens Personal Injury Lawyer said the Court acknowledges that while the summary proceeding and instant action do involve common questions of the law, jointure is not appropriate since it will hinder the prosecution of the summary proceeding, which the Court has already denied.

It is ordered by the Court that both the plaintiff’s motion and the cross motion of the defendant are denied. It is also ordered by the Court that the plaintiff serve a copy of the order to all parties involved in this case within 30 days of the order being issued.

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The petitioner in this case is Government Employees Insurance Company. The respondents in the case are Rinella Binns-Harty, and Technology Insurance Company. Proposed additional respondents are Sandra Ramos.

Case History

The respondent, Binns-Harty has moved for an order that vacates the award given to the arbitrator on July 28, 2009. The petitioner, Government Employees Insurance Company and Sandra Ramos both oppose this motion.

The case began with a car accident that occurred on June 30, 2006. At this time the offending vehicle was operated by Ramos and the car was owned by Transcare. The vehicle was insured by the proposed additional respondent, TICO. Binns-Harty filed a demand for arbitration for an uninsured motorist claim and the Government Employees Insurance Company states they received the claim on March 13, 2008. Government Employees Insurance Company began the instant special proceeding, pursuant with the law, CPLR 7503, and sought to stay arbitration of the respondents uninsured motorist claim.

The first petition was dismissed by Honorable Nicholas Figueroa, based on the fact that the issue was time barred because it was not started within 20 days of being received. Additionally, Justice Figueroa granted the respondents motion to resettle the issue on October 16, 2008.

A New York Injury Lawyer said that during the interim, the matter went before Howard I Bushin, Esquire of the American Arbitration Association. A telephone conference was held with both Government Employees Insurance Company and Binns-Harty being represented by counsel. Attorneys for Transcare testified on behalf of Government Employees Insurance Company stating that the vehicle that was operated by Ramos at the time of the accident was insured by TICO. The arbitrator found that the car was insured on the date of the accident and therefore dismissed the uninsured motorist claim which had been made by Binns-Harty.

Binns-Harty moves to vacate the arbitrators’ award, based on the grounds that the arbitrator did not have the authority to decide the issue of insurance coverage and therefore exceeded his authority.

Case Results

In this particular case, the respondent has not met the requirements needed to vacate the arbitrators’ award. When reviewing the records the court finds no evidence that the arbitrator exceeded his power when finding in favor of the Government Employees Insurance Company’s coverage issue. A Staten Island Personal Injury Lawyer said that during the teleconference the arbitrator indicated that the issue of coverage would be considered. Additionally, the respondent and his attorney’s waited four months before seeking clarification from the decision and order made by Justice Figueroa, which left the question of coverage up to the arbitrator to decide. For this reason, the Court cannot find that the arbitrator exceeded his authority by dismissing the uninsured motorist claim made by the respondent. A Suffolk County Personal Injury Lawyer said the records indicate that his finding was supported by the fact that the vehicle in question was insured on the day of the accident. The position made by the respondent would require the Court to ignore all concessions made by the counsel for the offending vehicle and make new findings in the case.

The Court upon hearing the evidence in the case has ruled that the respondent’s motion to vacate the arbitrators’ award is denied. The Court finds in favor of the Government Employees Insurance Company and the dismissal of the uninsured motorist claim is confirmed.

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The plaintiff in the case is Aragon, LLC. The defendants in the case are Scottsdale Insurance Company and Sterling Group, Inc.

Plaintiff Argument

In this case of insurance declaratory judgment action the plaintiff Aragon moves for a summary judgment. The plaintiff declares they are entitled to indemnification and defense from the defendant, Scottsdale Insurance Company as an additional insurance in a personal injury action titled “Bernard Ford versus 250 Park LLC, or the “Ford Action.” The plaintiff seeks reimbursement for attorney fees as well as expenses incurred.

Case Facts

In the previous case, the Ford Action, Bernard Ford alleges that he was employed as a sheet metal mechanic on October 13, 2005 for EZ Mechanical Contracting, Inc., when he fell off a construction accident at the project they were working at located at 250 Park Avenue South. The particulars of the case state that Aragon had violated labor laws and was generally negligent in the case.

Before the accident occurred, Aragon had entered into a construction agreement with the defendant, Sterling Group for construction work to be performed at 250 Park Avenue South. A New York Injury Lawyer said the contract required Sterling to maintain insurance policies in the amounts that are required for this type of project. A general liability policy of insurance was issued to Sterling by Scottsdale and it contains a Blanket Additional Insured Endorsement.

After the accident, Aragon sought additional insurance coverage under this blanket policy and Scottsdale denied the request.

Aragon argues that because the accident happened while Ford was working for his employer, which is a subcontractor for Sterling, the accident occurred during the course of operations by Sterling and therefore the accident falls within the scope of additional insurance.

Case Results

It is found by the court that Blanket Additional Insured Endorsement will provide additional coverage for a person who is insured by the person or organization that you have been required to add as an additional insured on the policy through a written contract, permit, or agreement. A Staten Island Personal Injury Lawyer said this policy must currently be in effect or becoming in effect and must be executed before personal, bodily, or advertising injury occurs. This additional insurance is limited to a person or organization that is injured by omissions or acts on your behalf.

In this case, the scope of the language of the policy endorses that Aragon was insured under this policy and while Ford was working under the relevant clauses of the policy, he was injured.

Based on the information that has been provided by both the defendant and the plaintiff, it is ordered by this Court that the motion for summary judgment by the plaintiff, Aragon, LLC, is granted. A Suffolk County Personal Injury Lawyer said the judgment declares that Aragon is entitled to both indemnification and defense from the defendant, Scottsdale Insurance Company as an additional insurance coverage in the case of Bernard Ford Versus 250 Park LLC, Aragon, and LLC. This includes the reimbursement of all attorney fees. It is also ordered that the plaintiff serve a copy of this order with notice of entry to the defendant within 20 days of the order being entered.

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The respondent in the case is James Davis. The respondent is represented by Jacobs, Jacobs & Giulini, Brooklyn, and Michael R. Scolnick. The appellant in the case is Bamboo 234 Restaurant, Inc. The appellant is represented by Henry Wolfman, from New York City and by Herbert Minster from Brooklyn.

The case is being held in the Second Division of the Supreme Court, Appellate Division. The judges in the case are Rabin, P.J., Hopkins, Munder, Martuscello, and Shapiro, JJ.

Court Memorandum

According to a New York Injury Lawyer, this is a proceeding that is attempting to remove a personal injury lawsuit from a Civil Court in the City of New York and move it to the Supreme Court. The proceeding wish to leave the complaint in the personal injury case and the appeal is ordered by the Supreme Court. The order is dated the 6th of October, 1970 and was granted by the Kings County Supreme Court.

In so far as being appealed from, the order is reversed with $10 in costs and disbursements and the application is denied. The application is denied without prejudice to the application made in the Civil Court of the City of New York, located in Kings County for the complaint to be amended.

Original Case

The original case was instituted by the plaintiff in December of 1966. The plaintiff began the case in the Kings County Civil Court. A Queens Personal Injury Lawyer said that the oral complaint from the plaintiff declares the following cause of action; Seeking a sum of $10,000 for the personal injuries and damages (premises liability) that were received on October 30, 1966 while I was on the premises of the defendant. The premise in question is located at 1011 Bedford Avenue in Brooklyn, New York. I was invited there as a business invite issued from the defendant.

The plaintiff goes on to claim that the defendant was negligent in the responsibility of ownership, maintenance, control, and operation of the premises in question. The plaintiff states he is free of any contributory negligence.

Current Case

The order that is being appealed is the order that granted the plaintiff the motion to remove his case from the Civil Court and move the case to the Supreme Court. A Staten Island Personal Injury Lawyer said the order also permitted the plaintiff to amend his complaint and set forth another cause of action in an attempt to recover punitive damages for the injury as well as compensatory damages.

Case Outcome

The special term of the motion that seeks to increase the ad damnum to $50,000 is denied. The reasoning for this is that the plaintiff can be adequately compensated for his actual damages with an amount that is within the limits of the jurisdiction.

In this court’s opinion, the transfer of the plaintiffs case from the Civil Court to the Supreme Court was an abuse of discretion as it allowed the plaintiff the ability to allege a new cause of action under the General Obligations Law, sections 11 through 101. This is also in view of the fact that the motion to move the case did not occur until almost four years after the fact. The plaintiff will be allowed to move through the Civil Court to amend his complaint under the same General Obligations Law.

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A man fell in his residential hotel apartment in New York City. A neighbor heard him yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found lying in apt, full of feces and was having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute while in the care of the EMS workers. A New York Injury Lawyer said the Ambulance Call Report also contained the man’s address, date of birth, social security number and a telephone number of a female close friend which named her as his next of kin.

Records revealed that the man was taken by the ambulance to the emergency room of a hospital and the Ambulance Call Report was received by the staff member of the hospital. An Emergency Department Patient Registration Form was prepared after the man’s arrival at the hospital and contained the same pedigree information as the Ambulance Call Report. A triage assessment was performed and the records indicate that the man was still experiencing shortness of breath and was noted to have an elevated heart rate. It appears that no treatment was administered in triage and he was given acute priority and sent to an acute area of the emergency department.

The man was assessed by an attending physician in the emergency room and was found to be in respiratory distress with swelling of the extremities. The emergency room attending physician testified that his preliminary diagnosis was congestive heart failure. He also entertained the possibility of pneumonia and heart ischemia and considered the man to be a critically ill patient. He further testified that he put a non-re-breather face mask on the man with the highest concentration of oxygen and such was documented in the emergency room records. A Westchester County Personal Injury Lawyer said that according to the emergency room attending physician, he administered a medicine to reduce the man’s heart rate and administer a dose of another medicine to get rid of extra body fluid. He further testified that he would have probably given the man an antibiotic in case there was pneumonia. The emergency room records did not indicate that the man was provided with any of the medication treatments discussed by the attending physician at his deposition. Additionally, the attending physician testified that nurses of the hospital assisted in the emergency room treatment provided to the man, however, it does not appear that any nursing notes were generated in connection with such treatment.

The man eventually stopped breathing and became unresponsive four hours after his arrival. The attending physician testified that he had a vague recollection of placing intubation on the man and remembered performing Advanced Cardiac Life Support. These treatments were not noted in the medical records. The attending physician said that he made at least two attempts to contact the next of kin listed in the medical chart but was unable to reach her and there was no recording or ability to leave a message. It appears that no written record was created with respect to the attempt to contact the next of kin. Since he was unable to reach the next of kin, the attending physician informed other hospital personnel and they took over the responsibility of contacting the man’s next of kin. He could not remember specifically who he spoke with regarding the matter, but believes it was the charge nurse and a nursing administrator.

A Suffolk County Personal Injury Lawyer said that the hospital's rules and regulations relating to notifying a family about the death of a family member specifically sets forth that it is initially a physician's responsibility to notify the next of kin of a patient's death. If the physician is unable to contact the next of kin, the physician is to notify the Clinical Nurse Manager/Nursing Administrator, who is required to make further efforts to contact the next of kin by making frequent phone calls, sending a telegram, and making a request of the City Police Department to visit potential residences for next of kin. If the Clinical Nurse Manager/Nursing Administrator is not successful with these aforementioned methods, and as a consequence, fails to locate a patient's next of kin, they are responsible for contacting the City Police Missing Person's Unit. After the City Missing Person's Unit is contacted, a request for police investigation form must be prepared by the hospital in triplicate. One copy of that form remains with the body, one copy is to be kept at the hospital, and the original is to be forwarded to the Receiving City Mortuary with the body, the latter copy to be returned to the City Police Department when the body is released from the mortuary to a legally designated institution.

According to an affidavit submitted by the complainant to the City Police Department in opposition to the hospital’s motion, the City Police Department was never contacted by the hospital to conduct any investigation into the existence and whereabouts of the man's family following his death. Furthermore, although the rules and regulations require the Nursing Administrator, at the appropriate care center, to maintain a log detailing the attempts made to contact a patient's next of kin, there are no records indicating that any efforts were made by anyone.

A Certificate of Death form was completed by another emergency room physician and the man’s body was then brought to the hospital morgue. A Staten Island Personal Injury Lawyer said that since the hospital staff was unable to locate next of kin, he was characterized as an unclaimed body. According to the testimony of a hospital employee, once the morgue is in possession of an unclaimed body, it becomes the responsibility of the morgue staff to complete the personal particulars portion of the Certificate of Death. Typically this is completed by a funeral director. Notwithstanding the fact that the hospital records relating to the man contained his pedigree information, his death certificate personal particulars’ were all unknown. The Certificate of Death also indicated that the informant’s name was unknown and the man was to be buried in the City Cemetery.

In addition to the hospital rules, when a body remains unclaimed for 72 hours in the hospital morgue, the Morgue Supervisor is required to notify the Administrator of Pathology. The Administrator of Pathology is then required to communicate with the Care Center Director and complete a decedent follow-up form and forward it to the Care Center Director. Thereafter, under the direction of the Care Center Director, a decision is to be made with respect to the disposition of the body. If further efforts are needed to locate next of kin, the body is to be retained in the morgue. The hospital's rules and regulations further state that if after 42 hours it is definitely established that there is no next of kin and every source has been exhausted, the Superintendent's Permission form is completed by the Care Center Director, authorizing a Hospital Post Mortem Examination after which the body is transferred to the City Mortuary. In the instant action it appears that the hospital did not abide by its own rules and regulations.

The Department of Health issued a burial permit in November of 2001 and the man’s body was transferred to the City Morgue. While at the City Morgue, students of County Community College's Mortuary Science Department were permitted to practice embalming on the man’s body. It does not appear that any efforts were made at any time by the City Morgue to verify that the body was unclaimed. On December 2001, the body was transferred from the City Morgue to the City Cemetery operated by the City Department of Corrections. The man’s body was then buried in a large burial plot by the inmates with approximately 150 other unclaimed bodies. Admittedly, the Department of Corrections would not have made any efforts to determine or contact the next of kin of an unclaimed body.

On February 2002, the man’s niece, a State Police Trooper, received a telephone message from the manager of the residential hotel that her that her uncle had passed away. It appears that the staff of the hotel began to grow concerned when they had not seen the man for quite some time, and began making inquiries at the hospital. Upon learning of the man’s passing, a hotel staff member was able to contact the niece, calling a telephone number contained in the hotel's records. After contacting the hotel, the man’s niece and her father were informed by a hotel staff that the man was taken to the hospital on October 28, 2001, and passed away on that date. The female friend advised them that she was never called by the hospital to inform her that the man had passed away.

After learning that the man had passed away, his brother made inquiries with the hospital and the City Morgue to find out where his brother had been buried. According to the brother’s deposition testimony during his initial visit to the hospital, he was told by an employee that she could not provide him with details about his brother's death or advise him as to where the body was located at that time, because the pertinent hospital records had been signed out by another employee who was on vacation at that time. The brother learned that the hospital employee intentionally lied to him in order to conceal the hospital’s wrongdoing. He eventually learned that his brother had been buried and he stated that he was encountering great difficulty when he initially attempted to locate his brother’s remains, and it was not until the media began assisting him, in the search, did he learn the exact whereabouts of the body. The body was exhumed and identified and the man’s family was able to have a wake and a funeral for him.

The brother served a notice of claim upon the hospital and its staff. The complaint asserts causes of actions against all the accused parties for medical malpractice, loss of sepulcher, fraudulent concealment and punitive damages. The City Health and Hospitals Corporation, the City Police Department, the City Department of Corrections and the City Department of Health respectively move to dismiss the action as asserted against them, and by separate motion, the hospital moves to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim. Additionally, the man’s brother moves for leave to amend the complaint.

According to the brother, dismissal of his claim for punitive damages relating to the medical malpractice cause of action is not warranted. As the evidence demonstrates that the attending physician was the physician in charge of providing medical care to emergency room patients, the Court finds that issues of fact exist as to whether such authority amounted to general managerial authority in relation to the nature and operation of the employer's business. The failure on the part of the hospital to simply transcribe the man’s personal particulars on his death certificate not only stripped him of his identity, but facilitated the unfortunate chain of events that were yet to unfold.

The Court ordered that the motion by the City Health and Hospitals Corporation to dismiss the action as asserted against it is denied to the extent that it seeks dismissal of the sepulcher cause of action, and granted in all other respects. The Court further ordered that the motion by the hospital to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim is granted only with respect to the fraudulent concealment claim asserted against it in the complaint, and denied in all other respects. The Court also ordered that the motion by the City Police Department, City Department of Corrections and City Department of Health to dismiss the action as asserted against them is granted in its entirety. The Court further ordered that the motion by the brother for leave to amend the complaint is granted only to the extent that he may assert a cause of action for gross negligence against the hospital in connection with the alleged acts of medical malpractice, and seek punitive damages in connection with that cause of action.

Negligence of one person results in the injury of the other. If you or a member of your family becomes a victim of malpractice in the field of medicine and sustained injuries in the process, you should seek the advice of an attorney to explore your legal options. Stephen Bilkis and Associates will provide you with legal counsel, and a free consultation, so call us today for an appointment.

The infant was allegedly injured during her mother's labor and delivery as a result of the accused party’s medical malpractice. The infant was born in 1999 in one of the hospitals by the State Health and Hospitals Corporation facility (HHC). The record reflects that the infant was admitted for shaking and possible seizure three weeks after birth in another hospital not affiliated with the hospital. The unaffiliated hospital records show that the mother told the doctors that the infant had been shaking since birth. Those records also show that the mother told the doctors that the infant had fallen on the floor when she was three days old and that there was some family history of epilepsy. Seven months after birth, a doctor from the unaffiliated hospital found that the infant has a seizure disorder.

Nine years after the infant's birth, the mother and the infant moved for leave to serve a late notice of claim on the hospital. The mother alleged that the infant had suffered fetal distress but the hospital had allowed the mother to labor for 48 hours which resulted to the infant’s birth injury. In further support of the motion, the mother asserted in an affidavit that the hospital should have performed an emergency caesarean section. A New York Injury Lawyer said the mother stated that when the infant was born she was purple and she would shake all over her body and her eyes would roll back. She further stated that she had complained about the infant's condition to the nurses at the time, but they told her nothing was wrong. Hence, the complainant asserted that leave to file a late notice should be granted because they had met their burden of showing that the hospital had actual, contemporaneous notice of the facts underlying the claim.

In opposition to the motion, the hospital asserted that its hospital's records do not support the mother’s allegations that it allowed prolonged fetal distress and the complainants failed to attach an expert affidavit establishing a connection between any alleged complications during labor or delivery and the infant's injuries. A Westchester County Personal Injury Lawyer said that more significantly, the hospital asserted that the records directly contradict the contention that there was anything wrong with the infant, or that they include any reference to the mother's report of the infant’s shaking or rolling back of eyes. On the contrary, the hospital argued that the medical records established that the infant was a healthy newborn.

In reply, the complainants annexed the records from the affiliated hospital. The record certifies that three weeks after the woman was discharge from the hospital, the mother told doctors at the unaffiliated hospital that the infant had a history of seizures since birth. The mother annexed the affiliated hospital records to show that the infant has been documented as having suffered seizures since birth or her second day of life.

The motion court granted the motion to file a late notice of claim of the infant but denied the motion of the mother since it is time-barred. The motion court reasoned that the accused had actual notice of the facts underlying the claim. Hence, the court concluded that the delay in notice would cause the hospital only some prejudice in investigating the claim. The hospital appeals but the court finds that the hospital had no actual notice of the facts underlying the medical malpractice claim, and would be substantially prejudiced by receipt of the notice of the infant’s claim nine years after the alleged medical malpractice took place.

The motion court noted that the attending physician who admitted the mother and made the decision to induce labor is no longer employed at the hospital and the obstetrician who delivered the infant resides outside of the state. Therefore, the accused party’s ability to defend itself against the mother's allegations is substantially prejudiced by the passage of nine years. Accordingly, the order of Supreme Court granted the infant's motion for leave to serve a late notice of claim upon the accused parties should be reversed without costs and the motion denied.
In taking care of children, one must be very observant and keen. Any unusual observations especially injuries in children caused by other people should be properly addressed with the help of a New York Injury Attorney from Stephen Bilkis and Associates. When dealing with birth related actions, be sure to contact a NYC Birth Injury Accident Lawyer or a NY Medical Malpractice Attorney.

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.

In 1967, at the age of 26, plaintiff began to undergo regular gynecological examinations in the office of defendant-doctor, an obstetrician-gynecologist. In April of 1969, plaintiff became pregnant for the first time. During the course of her pregnancy, she began to experience problems, including severe bleeding, which, according to defendant-doctor, indicated the possibility of a miscarriage. He thereupon prescribed medication which he said would help prevent a miscarriage. She took 100 pills a month for six months until, on 14 November 1969, she gave birth to a daughter. Following the birth, she continued her regular annual gynecological examinations and thereafter gave birth to two other daughters on 27 July 1973), and on 14 October 1974). During each of these pregnancies she was cared for and treated by defendant-doctor, who also delivered the children. After the third child’s birth, at plaintiff's request, defendant-doctor performed a tubal ligation so that she would bear no more children. Plaintiff thereafter continued her regular annual gynecological examinations with defendant-doctor.

In November of 1978, plaintiff became concerned about a painful lump in her left breast. Defendant-doctor referred her to her family physician. The lump was found to be cancerous and, in December of 1978, plaintiff underwent a modified radical mastectomy of her left breast. After completion of her post-operative care, she returned for her annual visit to defendant-doctor’s office. Upon learning of her operation, he advised her to return twice yearly. Early in 1980, on one of her visits, plaintiff asked defendant-doctor whether the drug she had taken in 1969 was DES. He acknowledged that it was. According to a New York Injury Lawyer, in May of 1980, plaintiff began to develop severe back pain. In June of 1980, she had a positive bone scan, evidencing lesions in her thoracic spine. After 10 radiation treatments, she underwent a bilateral salpingo-oophorectomy (removal of both fallopian tubes and ovaries) for relief. By the fall of 1980, she began to experience new back pain. A bone scan administered in January of 1981 showed new areas of activity and lesions. Plaintiff is at present being treated for an estrogen related metastatic bone disease which has spread through her vertebrae to her right ribs and the right side of her skull.

Plaintiff and her husband hereafter commenced the instant action against defendant-doctor and the manufacturer and seller (defendant-company) of the DES which she took in 1969. A Staten Island Personal Injury Lawyer said the complaint stated three causes of action against each defendant: (1) on behalf of plaintiff, against defendant-doctor, alleging negligence and lack of informed consent; (2) on behalf of the husband, against defendant-doctor, alleging medical expenses and loss of services and society; (3) on behalf of plaintiff, against defendant-doctor, alleging negligent infliction of emotional distress (from fears that her 1st daughter would develop reproductive cancer as a result of her prenatal exposure to DES); (4) on behalf of plaintiff, against defendant-company, on a theory of strict products liability (defective product); (5) on behalf of the husband, against defendant-company, alleging medical expenses and loss of services and society; and (6) on behalf of plaintiff against defendant-company, alleging negligent infliction of emotional distress.

Defendants argue that the action is time barred on Statute of Limitation grounds; lack of merit; and failure to state a cause of action.

Were the plaintiff’s two subsequent pregnancies and her series of annual gynecological examinations constitute a continuous course of treatment sufficient to postpone the running of the Statute of Limitations?

The "continuous treatment" exception states that the time in which to bring a medical malpractice action is stayed "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint". The Court limited the doctrine to a continuous course of treatment related to the same original condition or complaint, for the same or related illness or injuries, continuing after the alleged acts of malpractice, but excluded those cases involving the mere continuity of a general physician-patient relationship. The rationale for the exception rests, in part, upon the principle that where a patient is being treated continuously for one condition, he or she should not have to interrupt that treatment in order to sue the physician; rather, the patient should be allowed to continue the treatment to its conclusio reposing trust and confidence in the physician, and the Statute of Limitations should not begin to run until that course of treatment has ended.

New York Courts have continued to elaborate upon the "continuous treatment" doctrine and held that a patient's yearly checkup appointments for mammographies amounted to a series of discrete individual "treatments" and therefore did not constitute a "continuous course of treatment" sufficient to delay the running of the Statute of Limitations. A Westchester County Personal Injury Lawyer said the Courts further held that a series of mail and telephone contacts regarding the scheduling of an appointment did not constitute "treatment"; a series of routine pediatric examinations did not constitute a "continuous course of treatment".

The "continuous treatment" exception would also not apply to a situation where a patient interrupted her treatment in disregard of her physician's advice and then, eight and one-half months later, after she was admitted to the hospital under treatment by other physicians, her original physician visited her there and signed her discharge summary as this constituted a resumption and not a continuation of treatment. On the other hand, the "continuous treatment" doctrine can be applied to a situation in which, after operating on a patient, a physician continued to care for and observe him during post-operative visits, advising him that he had been cured, and the patient, complaining of pain in the same area, thereafter continued to return for further visits until the original allegedly faulty diagnosis was finally discovered.
On the basis of the foregoing cases and the legislative codification of the holdings thereof, it is thus clear that the facts as alleged by plaintiff do not bring her within the purview of the "continuous treatment" exception to the Statute of Limitations in medical malpractice actions.

Did the defendants have a "continuing duty to warn" plaintiff regarding the dangers of DES, as those dangers became known, and that this duty delayed the running of the Statute of Limitations?

It must be noted that plaintiff took DES during only one period in 1969 and, once she ingested the medication, the "treatment" in question ceased and the Statute of Limitations began to run. Since plaintiff's allegations do not bring her within the purview of the "continuous treatment" exception, the Statute of Limitations began to run when the "treatment in question" ceased, that is, when plaintiff's 1st daughter was born on 14 November 1969, or shortly thereafter when postoperative care ceased, and expired well before the commencement of this action.
Can defendant-company be liable on the same basis as defendant-doctor?

Even if the herein court were to conclude that the "continuous treatment" exception was somehow applicable to defendant-doctor, it would not similarly make the action timely against defendant-company. Courts have extended the applicability of the "continuous treatment" doctrine to third parties not directly involved in the physician-patient relationship, such as consulting physicians, laboratories, and manufacturers, only under very limited circumstances.
The court held, in a landmark case, that a pathologist who misdiagnosed a biopsy specimen would be liable under the same "continuous treatment" theory as the primary physicians who treated the patient since during the course of their treatment they continued to rely on the pathologist's faulty diagnosis in assuring the patient that he did not have cancer. Thus, it was reasoned that his misdiagnosis was as much a part of the continuing malpractice as the physician's continued reassurances.

However, the Court of Appeals held, in another case, that a pathology laboratory would not be liable on a "continuous treatment" theory for its misdiagnosis of a cancerous biopsy specimen where its action consisted of a one-time analysis and it had no continuing relationship, of an agency or any other nature, with the primary physician who continued to treat plaintiff for the condition in question.

In another case, the court, applying New York law, held that the "continuous treatment" exception would apply to the manufacturer of an inflatable mammary prosthesis in a case where the "continuous course of treatment" in question involved the fitting and continuing adjustment of the prosthesis in the patient's body by the physician, since the device was an integral part of the treatment.

However, in another landmark case, in an action by a patient against both her physician and a manufacturer in connection with the continuing administration, over a period of years, of birth control pills, the Second Circuit Court of Appeals declined to follow the aforesaid ruling reasoning that it would rather await a ruling on the question by the New York Court of Appeals before finding a pill's manufacturer liable under a "continuous treatment" theory.

On the basis of the abovementioned cases, the court finds that there is no reading of the allegations present under which defendant-company’s role in the treatment of plaintiff can be said to have extended past the birth of plaintiff’s 1st daughter. Thus, as to it, the Statute of Limitations began to run at that time and plaintiff's action is untimely.

Is defendant-doctor estopped from raising the Statute of Limitations as a bar to plaintiff’s action because he knowingly concealed his malpractice from her and intentionally deceived her in order to prevent her from suing him?

On the facts as alleged, such contention is without basis.

The Court of Appeals has held in a number of cases that a defendant physician in a malpractice action might be equitably estopped from raising the Statute of Limitations as an affirmative defense where, through actual affirmative misrepresentations, he fraudulently concealed his malpractice from the patient by informing her that she was being cured (when in fact he knew this to be false), thereby causing her to continue her treatment with him in reliance on his advice and forego both seeking other treatment and suing him before the running of the Statute of Limitations. However, the court indicated that there had to be specific allegations of such fraudulent concealment in the complaint, or at least evidence in the record that might support such allegations, before the principle could be applied.

A reading of plaintiff's complaint and the papers submitted on the motions disclose no such allegation or evidence. It contains no allegation that defendant-doctor actually knowingly concealed his malpractice or made fraudulent misrepresentations to plaintiff. Similarly, although plaintiff's affidavit seeks to imply that defendant-doctor deliberately concealed from her the fact that he had given her DES in 1969 when she informed him of her breast cancer and subsequent mastectomy, the allegations in the record do not in any way indicate the kind of actual fraud necessary to create an equitable estoppel.

Was the complaint time-barred?

A cause of action for damages suffered as a result of exposure to a harmful substance accrues, the Statute of Limitations begins to run when the last exposure occurs, even though the actual injury (personal injury) may only become manifest many years later. In actions of negligence, damage is of the very gist and essence of the plaintiff's cause.

Although negligence may endanger the person or property of another, there is no actionable wrong is committed if the danger is averted. It is only the injury to person or property arising from negligence which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong. Through lack of care, a person may set in motion forces which touch the person or property of another only after a long interval of time; and then only through new, fortuitous conditions. There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose.

"That does not mean that the cause of action accrues only when the injured person knows or should know that the injury has occurred. The injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues. Except in cases of fraud where the statute expressly provides otherwise, the statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury. Consequential damages may flow later from an injury too slight to be noticed at the time it is inflicted. No new cause of action accrues when such consequential damages arise. So far as such consequential damages may be reasonably anticipated, they may be included in a recovery for the original injury, though even at the time of the trial they may not yet exist. When substantial damage may result from any wrong affecting the person or property of another, a cause of action for such wrong immediately accrues.

The leading case applicable to the case at bar held that: the injury to the plaintiff was complete when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust. For that injury, including all resulting damages the defendant was then liable. The disease of the lungs was a consequence of that injury. Its result might be delayed or, perhaps, even by good fortune averted; nevertheless, the disease resulted naturally, if not inevitably, from a condition created in the plaintiff's body through the defendant's alleged wrong. It cannot be doubted that the plaintiff might have begun an action against the defendant immediately after he inhaled the dust which caused the disease. No successful challenge could have been interposed on the ground that the action was prematurely brought because, at the time it was commenced, no serious damage to the plaintiff had yet developed. In that action the plaintiff could recover all damages which he could show had resulted or would result therefrom. In effect, the plaintiff is asking this court to hold that the statutory period of limitation begins only from the time that the plaintiff had reasonable assurance that serious damage had resulted or would result from past injury. The statute provides in unambiguous language that the period of limitation begins to run at the moment when right to begin an action accrues. The same test must be applied to a challenge that the action is stale as to a challenge that the action has been brought prematurely.

The Statute of Limitations is a statute of repose. At times, it may bar the assertion of a just claim. Then its application causes hardship. The Legislature has found that such occasional hardship is outweighed by the advantage of outlawing stale claims. The problem created by the slow onset of the disease of pneumoconiosis or silicosis has been considered by the courts of other jurisdictions. They have given to statutes of limitation their intended effect as statutes of repose and have held that a cause of action sounding in negligence accrues at the time when through lack of care by an employer, deleterious substances enter the lungs of an employee though the development of consequential damages may be long delayed.

In view of the above, the court is constrained to dismiss the complaint. The ingestion of a pill is analogous to the injection of a chemical substance or the inhalation of dust as to render this case legally indistinguishable from those cited. The law as it now stands--restated by a majority of our state's highest court but 20 months ago--mandates that the court decides the case against the weight of profound sympathy; and the apparent injustice that the doctrine brings.
If you have been injured as a result of a negligent act, consult with a lawyer immediately. Do not waste time for you might end up like the above mentioned case where you could lose your right to ask for compensation on the damages or injuries inflicted on you. Contact Stephen Bilkis & Associates for a free legal advice.

On 16 June 2004, a motor vehicle accident occurred where serious injuries were allegedly sustained by plaintiffs. The accident allegedly happened when the vehicle owned and operated by the defendant struck the vehicle operated by one of the plaintiffs, the other plaintiffs riding as passengers.

The complaint contains causes of action which allege that plaintiffs each sustained a "serious injury" as defined in Insurance Law; an action to recover damages.

Insurance Law defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture (broken bone); loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

According to a New York Injury Lawyer, in order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion muse be ascribed or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

Is there a prima facie showing of "serious injury"? The initial burden is on the defendant "to present evidence, in competent form, showing that the plaintiff has no cause of action". Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.

In support of the motion and relative to plaintiff-driver, defendant submits, inter alia, the pleadings; the plaintiffs' verified bill of particulars; and the affirmed report of defendant's examining orthopedist. Westchester County Personal Injury Lawyer said in their bill of particulars, plaintiffs claim that the driver sustained a concussion as well as cervical/lumbar disc bulges and herniations; sustained a limitation of motion and an exacerbation of all pre-existing injuries/conditions; and was confined to her home for two months as a result of the accident. The Court construes these allegations to mean that plaintiff claims a serious injury in the categories of a permanent consequential limitation and a significant limitation.

In support of the motion and relative to plaintiff (1st passenger), defendant submits, inter alia, the pleadings; the plaintiffs' verified bill of particulars; the affirmed report of defendant's examining orthopedist; and the affirmed report of defendant's examining neurologist (for head injury). In their bill of particulars, plaintiffs claim that 1st passenger sustained contusions of the knees; cervical and lumbar disc herniations; and straightening of the cervical lordosis; sustained a limitation of motion and an exacerbation of all preexisting injuries/conditions. The Court construes these allegations to mean that plaintiff claims a serious injury in the categories of a permanent consequential limitation and a significant limitation.

In support of the motion and relative to plaintiff (2nd passenger), defendant submits, inter alia, the pleadings; the plaintiffs' verified bill of particulars; the affirmed report of defendant's examining orthopedist; the affirmed report of defendant's other examining orthopedist; and the affirmed report of defendant's examining neurologist (for head injury); In their bill of particulars, plaintiffs claim that 2nd passenger sustained a lesion of the humeral head of the right shoulder; cervical and lumbar disc herniations; and a loss of cervical and lumbar lordosis; sustained a limitation of motion and an exacerbation of all pre-existing injuries/conditions; and was confined to his home for one week and to his bed for 2 days as a result of his injuries. A Staten Island Personal Injury Lawyer said the Court construes these allegations to mean that plaintiff claims a serious injury in the categories of a permanent consequential limitation and a significant limitation.

In the reports of the doctors who independently examined the plaintiffs for their alleged injuries, it was in their opinions that there were no serious impairments and that they were all capable of carrying out the normal activities of their daily living without restriction.

The defendant made a prima facie showing that plaintiffs each did not sustain a serious injury. In opposition, two affirmed MRI reports of plaintiffs’ treating radiologist for each of the plaintiffs; the personal affidavit of plaintiffs’ treating chiropractor for each of the plaintiffs; and the plaintiffs’ personal affidavits are submitted, inter alia.

The Court notes that the treating chiropractor’s affidavit is deficient to the extent that he attempts to render a medical diagnosis or prognosis which is beyond the scope of chiropractic practice.

Plaintiffs have provided insufficient medical proof to raise an issue of fact that they each sustained a serious injury under the no-fault. While a disc herniation may constitute a serious injury, each of the radiologist’s MRI reports are not probative for the purposes of demonstrating a serious injury for any of the plaintiffs because they contain no opinion as to, and, additionally, these reports do not establish the extent of the alleged physical limitations resulting from the alleged disc injuries and their duration. The chiropractor’s diagnoses of cervical and lumbar derangements are not explained, defined or specifically connected to plaintiffs' limitations, and their significance is not delineated; has not provided an adequate explanation for the end of his treatments rendered to plaintiffs sometime in November, 2005, and his most recent re-examination of them on October 4. Plaintiffs' gaps in treatment were, in essence, cessations of treatment which they have failed to adequately address by way of competent medical proof.

Therefore, the conclusory affidavits of the chiropractor, which were clearly tailored to meet the statutory requirements, are insufficient to establish a "serious injury" for the plaintiffs under the no-fault law. Moreover, plaintiffs' subjective complaints of pain to their health care providers do not constitute significant injuries within the meaning of the statute.

In conclusion, the proof submitted by the plaintiffs is insufficient to raise a triable issue of fact that they sustained a medically-determined injury or impairment rendering them unable to substantially perform all of their usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The record lacks objective proof of any substantial curtailment of their activities within the relevant time period after the.
Accordingly, plaintiffs' complaint is dismissed.

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Four separate actions were commenced against the defendant, City of New York, plaintiffs from over 40 families sought to recover damages for personal injuries and wrongful death based on allegations that the diseases they suffered from were caused by exposure to toxic substances at the Brookfield and Fresh Kills landfills on Staten Island. The plaintiffs are residents or former residents of neighborhoods located near the landfills. The four separate actions were later consolidated into one case.

Each of the plaintiffs served a notice of claim on the defendant in May or June 1992. A New York Injury Lawyer said that the notices of claim alleged, inter alia, that the defendant was negligent in allowing health hazards to exist at the landfills and that the plaintiffs or their decedents were exposed to toxic emissions from the landfills into the air, water, and ground. All of the notices of claim of the plaintiffs stated that each plaintiff discovered the cause of his or her injury in March 1992, except one plaintiff’s notice of claim, which did not indicate when the cause of her injury was discovered. In August 1992, the plaintiffs moved to amend their notices of claim to allege that the landfills continued to present health hazards and that the time when the claim arose is a question of fact to be determined by the jury.

The defendant concedes that, for Statute of Limitations purposes, the plaintiffs’ action was commenced on June 1, 1993. In June 1994, the defendant moved for summary judgment dismissing the claims of 19 plaintiffs, belonging to the 1st action as time-barred under the provisions of CPLR. A Staten Island Personal Injury Lawyer said that subsequently, in its reply papers, the defendant withdrew the motion with respect to three of the 19 plaintiffs.

The Supreme Court dismissed the claims of five of the plaintiffs as time barred, and the court denied the defendant's motion with respect to the remaining eleven plaintiffs.

Nine of the eleven plaintiffs claimed damages for personal injuries to themselves. The plaintiffs do not dispute the accuracy of evidence provided by the defendant, based on the notices of claim and General Municipal Law hearings, that their various illnesses (i.e., leukemia, Hodgkin's disease, seizure disorder, non-Hodgkin's lymphoma) were diagnosed on the dates stated.

Two of the eleven plaintiffs claimed damages for wrongful death.

The key issues presented are - whether the personal injury claims of 11 remaining plaintiffs, belonging to the 1st of the four actions, should have been dismissed as untimely under the "date of discovery" rule in Civil Practice Law and Rules (CPLR); and that the remaining plaintiffs were improperly joined; and, that the consolidation of the four actions were also improper.

In a cause of action to recover damages for personal injuries caused by the latent effects of exposure of the body to toxic substances, the accrual date is determined by the discovery rule set forth in CPLR. Prior to the enactment of CPLR in 1986, the Statute of Limitations commenced to run upon the date of exposure to the harmful substance, even though the ill effects of such exposure were not manifested until years later. The harshness of this rule was remedied by CPLR, which provides that the cause of action accrues, and the Statute of Limitations commences to run, upon discovery of the injury itself. Thus, the three-year Statute of Limitations for personal injury actions commences to run upon the date of discovery of the injury or "the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier" . Where, as here, General Municipal Law are applicable because the claim is asserted against a municipality, the Statute of Limitations of one year and 90 days is measured from the date of discovery of the injury or from the date when, through the exercise of reasonable diligence, the injury should have been discovered, whichever is earlier. The time within which to commence an action under CPLR may be extended - "Notwithstanding the provisions of subdivisions two and three of this section, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section".

On the issue with regard to the timeliness of the wrongful death causes of action of the plaintiffs, the court concludes that their causes of action are barred by the two-year Statute of Limitations in General Municipal Law, which runs from the date of death the two (2) plaintiffs died in 1990 and 1988, respectively, and the 1st action was not commenced until 1993.
The Statute of Limitations period in General Municipal Law for wrongful death actions is not affected by the discovery rule in CPLR, which, by its express language is limited to causes of action to recover damages for personal injury and injury to property. If the wrongful death causes of action had been timely commenced, the provisions of CPLR would be relevant to the issue of whether the decedents had viable personal injury causes of action at the time of their deaths.

Although the wrongful death causes of action are untimely, since the complaint in the 1st action is not included in the record on appeal, the court assumes for purposes of this appeal that the two (2) plaintiffs also asserted causes of action for personal injuries to their decedents which are governed by CPLR. Hence, upon consideration of the provisions in CPLR and their purpose, the court concludes that the defendant's motion to dismiss the subject plaintiffs' personal injury causes of action should have been granted.

The court notes that the plaintiffs do not dispute that the date their causes of action accrued, i.e., the "date of discovery of the injury" under CPLR 214-c(3), is the date their illnesses were diagnosed. As the illnesses of the plaintiffs in question were all diagnosed by the end of 1991, the action commenced in June 1993, more than one year and 90 days later, was untimely under CPLR. Accordingly, the plaintiffs in question must rely on CPLR, which applies in those situations where the cause of the injury is unknown at the time that the injury is discovered.
In order to take advantage of CPLR, the plaintiffs in question had to present evidence that they could meet three criteria: (1) they learned that harmful substances at the landfills caused their illnesses within five years after their illnesses were diagnosed, (2) this action was commenced within one year of discovery of the cause, and (3) there was insufficient information available to discover the cause prior to the expiration of the one year and 90-day Statute of Limitations. Contrary to the parties' contentions, the court does not find the subject plaintiffs' notices of claim helpful in resolving these issues. It is true that the allegation in the original notices of claim that the cause of the subject plaintiffs' injuries was discovered in March 1992 renders the causes of action interposed in June 1993 untimely on their face under CPLR. However, the plaintiffs disavowed this allegation and amended their notices of claim so as to leave open the possibility that the cause was discovered at another, presumably later, time. On the other hand, we disagree with the subject plaintiffs' contention that the defendant's failure to oppose their motion to amend the notices of claim constituted a concession with respect to any legal issues surrounding its Statute of Limitations defense.

The subject plaintiffs were unable to satisfy the first two criteria in CPLR because they made it very clear in their submissions to the Supreme Court that they had not as yet discovered the cause of their injuries. Although the plaintiffs contended that scientists were in the process of identifying clusters of illnesses in residents who lived near the landfills and that they believed such illnesses would ultimately be traced to chemicals at the landfills, their own expert acknowledged that any link between the landfills and the plaintiffs' illnesses was still in the hypothetical stage.

In cases where the medical diagnosis of the injury does not indicate that a toxic substance was the cause, a determination as to when there was sufficient information available to a plaintiff to discover the cause will often present a factual issue for the jury. But that issue arises after the cause of the injury is discovered, when the plaintiff must show that the cause could not have been discovered within the statutory periods. If a plaintiff does not discover the cause within five years of discovery of the injury, the issue of whether it was possible to discover the cause sooner is irrelevant.

The court recognizes that CPLR should be read liberally to further its remedial purposes. However, there is no question that the plaintiffs' claims are untimely under CPLR which provides only a limited amount of time for an injured plaintiff, whose claim is time barred, to discover the cause of his injury and commence suit. A Westchester County Personal Injury Lawyer said that the statute does not contemplate that a plaintiff may in effect indefinitely toll the Statute of Limitations while searching for the cause of the injury.

Our determination is limited to the narrow holding that the subject plaintiffs' claims are time barred under CPLR and that they have failed to show that another section of the provision applies. Since CPLR provides the subject plaintiffs with a five-year period in which to discover the cause of their injuries, and that five-year period has not yet elapsed for some plaintiffs, we do not reach the issue of whether they may commence another action if they succeed in discovering a connection between their illnesses and harmful substances at the landfills within that period. In addition, since the subject plaintiffs asserted that they had not yet discovered that any substances at the landfills caused their injuries, it is unnecessary to reach the issue raised that discovery of the cause of the injury for CPLR purposes requires discovery of the particular substance at fault.

The court concludes that these plaintiffs' claims are time-barred under CPLR, and their allegation that they have not, as yet, discovered the cause of their injuries precludes a finding that their claims are timely under CPLR.

Meanwhile, plaintiffs raise two alternative arguments regarding the Statute of Limitations. The plaintiffs allege that they were still being exposed to toxic emissions from the landfills which would not affect the accrual date of their causes of action since the date of discovery of the injury is the key under CPLR, and there is no continuing-wrong exception to the comprehensive rules in CPLR. The court concludes that these arguments are unwarranted.

The court concludes that the defendant's motion to dismiss the claims of the 11 plaintiffs under CPLR should have been granted and the Supreme Court's order should be modified accordingly.
On the issue that the remaining plaintiffs in the 1st action were improperly joined because their claims involve different disorders, different allegations as to exposure to the substances at the landfills, and different issues of proximate, the defendant's moved to sever the claims in the 1st action. The court denies the same. The plaintiffs' claims involve common questions of law and fact regarding, inter alia, the defendant's operation of the landfills, the substances deposited there and the health effects of exposure to such. The defendant has failed to establish that the factual differences among the plaintiffs' claims in the 1st action warrant a severance at this stage of the proceedings.

However, the consolidation of the four actions is improper. The record contains insufficient information about the individual claims of the plaintiffs in the 2nd, 3rd and 4th actions to determine whether consolidation or a joint trial would be appropriate and whether the presentation of the claims in all four actions before a single jury would unfairly bolster the case against the defendant. The motion for consolidation is therefore denied without prejudice to renewal. The court notes that the plaintiffs sought consolidation primarily in order to facilitate common disclosure. The defendant does not dispute that common disclosure would avoid needless duplication, as it appears that the plaintiffs in the four actions will be relying on the same scientific investigation of the landfills. Nevertheless, consolidation is unnecessary since the parties can consent to the joint use of discovery material if they be so advised.

If you have been injured for causes other than your own, you might find the need for an expert legal advice helpful. Get in touch with Stephen Bilkis & Associates for a consultation. Know your options.

A woman in Puerto Rico sued a Delaware corporation that manufactures blood analyzing machines. The complaint alleged that the Delaware Corporation had a manufacturing plant in Puerto Rico. The complaint alleged that the manufacturing plant continually discharged toxins from 1971 until 1981 into a creek that flowed into another creek that caused pollution and contamination of the soil, water and air in the neighborhood where the Puerto Rican woman lived and caused her sickness.

A New York Injury Lawyer said in its Answer, the Delaware Corporation admitted that it had intentionally discharged industrial wastes which flowed into the creek in 1979 but that after that, it began transporting its industrial wastes for disposal at a waste treatment facility. It also forwarded the defense that its intentional discharge of its industrial waste was not prohibited by its existing permits at that time.
In that personal injury case filed in the US territory of Puerto Rico, the Delaware Corporation asked the Superior Court to include as third party defendants around fifteen insurance corporations which had issued general and comprehensive insurance to the Delaware Corporation. The Delaware Corporation demanded that these fifteen insurance corporations indemnify it under the terms of its insurance policies and also provide the Delaware Corporation with defenses to protect itself against the personal injury suit filed by the Puerto Rican woman.

These fifteen insurance companies refused to indemnify the Delaware Corporation and refused to furnish it with a defense to protect itself against the personal injury suit filed by the Puerto Rican woman for diseases she contracted as a result of the intentional discharge by the Delaware Corporation of toxic industrial wastes into their drinking water and soil.

A Westchester County Personal Injury Lawyer said the Delaware Corporation now brought suit against the fifteen insurance corporations in the State of New York to compel them to indemnify the Delaware Corporation for all monies it will be required to pay the Puerto Rican woman as damages. It also filed this suit to compel them to furnish the Delaware Corporation with defenses in law as provided for in their insurance policies.

The only defenses of the fifteen corporations to support their refusal to indemnify and defend the Delaware Corporation were: that the Delaware Corporation’s discharge of toxic waste was not sudden and accidental; and that at the time that the Delaware Corporation discharged the toxic waste in 1979, all insurance policies were read to include the “pollution exclusion” clause that prohibited insurance corporations from indemnifying insured corporations for pollutions it had caused.

The fifteen insurance corporations filed a motion for summary judgment asking the dismissal of the complaint of the Delaware Corporation against them, alleging that there are no more issues of fact that need to be tried.

The only question before the Supreme Court is whether or not the fifteen insurance corporations are entitled to a dismissal of this complaint against them.

The Supreme Court of New York ruled that the word “sudden” should be given its common and ordinary meaning, that is, that events occurred without previous notice or with only brief notice. It also ruled that the word ‘accidental’ meant that the event insured against were unintended and unexpected. A Staten Island Personal Injury Lawyer said that for the fifteen insurance corporations to be made liable to indemnify the Delaware Corporation, the discharge of toxic waste for which it was being sued in Puerto Rico had to have been both sudden and accidental, that is, that the discharge of toxins was unintended and unexpected and that they happened without previous notice.

Looking at both the complaint for personal injury filed by the Puerto Rican woman as well as the certified answer filed by the Delaware Corporation, it was obvious that the discharge of toxins was intentional, deliberate, and it occurred in the regular course of business of the Delaware Corporation over a long period of time.

The Supreme Court of New York granted the motions for summary judgment filed by the fifteen insurance corporations. This complaint filed by the Delaware Corporation is dismissed.

When filing a personal injury case, whether a premises liability action, or medical malpractice case, an attorney needs not only to present facts comprehensively. A lawyer also needs to investigate if the person who caused the injury has the financial capacity to pay the damages claimed against him. Call Stephen Bilkis and Associates for advice and a free consultation.

On September 5, 1990, the complainant was injured in a car accident. The car he was riding was struck by another car driven by the accused. The accused was arrested for driving while intoxicated. The injured man went to the hospital on the date of the car accident and came back two days later. The hospital emergency medical record revealed that the injured man complains of bleeding from throat, blood in urine, swollen back and swollen left foot. As a result of his injuries, the complainant later allegedly developed a bone infection which required the amputation of his toes.

A New York Injury Lawyer revealed that the injured man executed the release claim on October 3, 1990, less than one month after the car accident. When he executed the release, he was not represented by a counsel. The release presents a question as to its sufficiency. Although it contained a space for the notarization of the injured man’s signature, there was no notarization. The blank spaces on the pre-printed release form were imprecisely filled in. The accused persons' names were misspelled and inverted. The release numerically recited the consideration paid yet the amount written in words was different from the numerical equivalent. The $700 discrepancy is unexplained. As the complainants contend either amount, whichever one represents the actual consideration paid, clearly appears to be far more consistent with the determined value payment for property damage to an aging BMW automobile that was totally destroyed in the car accident than with a personal injury claim.

Notably, after the release was executed, the parties proceeded as if the release covered property damage only. A Westchester County Personal Injury Lawyer said that the action that was commenced in July 1991 seeks only damages for personal injuries. Indeed, the accused persons’ answer, filed shortly thereafter, did not assert the release as a defense. For over two years, the parties proceeded with discovery on the personal injury claim. The complainant proffered communication from the accused person’s insurance carrier written in 1991, which refers to the release and yet sought additional information from the complainants. A later letter from the insurance carrier requested the disclosure of medical records and inquired into the injured complainant’s medical condition. If the insurance carrier believed the release, to which it specifically referred, was intended to cover the injured complainant’s physical injuries then there would have been no cause for the insurance carrier to seek out the requested medical information. It was not until the eve of trial and over three years after the injured complainant executed the release when the accused persons first moved to amend their answer to assert the release as a defense. Under the circumstances, there is a good deal of merit to support the claim that the release was not intended to cover the complainant’s personal damages, and at the very least the issue presents a truthful argument that may not properly be determined as a matter of law.

It is also significant that the complainant have not yet had an opportunity to depose potential witnesses who might have knowledge of the circumstances surrounding the execution of the release. The complainants’ failure to previously seek such discovery is directly attributable to the accused persons’ failure to more promptly raise their affirmative defense of the release.
A summary judgment was properly awarded in favor of the accused on the basis of the release. It is firmly established that a general release is governed by principles of contract law and the traditional bases for setting aside written agreements, namely, persuasion, threat, illegality, fraud, or mutual mistake, must be established otherwise, the release stands. The complainants have come forward with no evidence demonstrating any of the abovementioned grounds for invalidating the release. Rather, they argue that the complainant believed and intended that the release would pertain only to his property injury claim and would not bar a claim for personal injuries. However, the plain and unmistakable terms of the release disprove the contention by expressly releasing the accused from claims of bodily injuries and personal injuries. The law is clear that one who executes a plain and unambiguous release cannot avoid its effect by merely stating that he misinterpreted its terms. Likewise, the language with respect to the parties' intent is clear and unambiguous and will be given effect, regardless of the other party's claim that he intended something else.

The complainant further attempted to avoid the effect of the release by claiming that he did not read the document prior to signing it. However, the failure to read an instrument prior to execution has long been held a legally unacceptable basis for refusing to abide by its terms, a principle which has been applied with equal vigor in cases involving releases.

Notwithstanding the established law, the opposition agrees with the complainants’ argument that the parties may have intended the release to apply only to claims for property damage. A Staten Island Personal Injury Lawyer says the opposition finds claimed evidence of a mutual mistake such as executing the release 28 days after the car accident, the complainant was not represented by a counsel at the time of execution, the instrument appears to have been hastily prepared, the settlement amount seems more consistent with a compromise of a property damage claim than a personal injury claim, the complainant may have suffered some type of physical injury, and the accused requested certain information regarding the alleged injury as late as 1991. These factors, whether considered individually or collectively, fall woefully short of raising a question of fact regarding mutual mistake.

It requires particular emphasis that more often than not, the person who executes release of claims in personal injury cases are willing to settle for relatively small sums, or sums that do not discount injuries unknown at the time because of the doubtful liability of the person who benefits from the release, even when ordinary caution would suggest awaiting the development of unknown injuries or consequences. With this form of encouragement, it would be deceitful to assume that the amount of the settlement or the impulsiveness of affecting the settlement is confirmation of a mutual mistake.

Furthermore, while the record contains no evidence indicating that the complainant suffered any car accident-related injury, the issue is in any event irrelevant since he has never premised his mutual mistake contention upon the existence of any injury which was unknown at the time he executed the release. Naturally, if the injury was known, and the mistake was merely as to the consequence of a known injury, then the release will stand. Likewise, the mere circumstance that the accused persons’ insurance carrier continued to correspond with the complainant’s former attorney regarding his claimed injury subsequent to the execution of the release fails to demonstrate that the accused person’s believed the release covered only property damage. Indeed, the correspondence is indicative of nothing more than the insurance carrier's performance of a fair and cautious investigation of all claims made by the complainant.
The complainant’s assertions of misrepresentation and fraud, belatedly raised on an appeal are similarly unsubstantiated. Significantly, they have never identified the alleged misrepresentation or the person by whom it was made. Additionally, in the Supreme Court papers, the complainants expressly avoided any belief that a fraud occurred, and the improperly vague claim of fraud on the appeal is patently misleading. At best, the complainants have established a mere unilateral mistake on the part of the injured man as to the meaning and effect of the release. Such a mistake does not constitute an adequate basis for invalidating a clear, unambiguous and validly executed release.

Accidents are results of one’s negligence. When you are in a lawsuit caused by a car accident, Stephen Bilkis and Associates can help you unburden the weight of such incidents.

The defendant in this case has moved for a summary judgment and filed a motion to dismiss the personal injury case of the plaintiff due a trip and fall accident. With regard to the defendant’s motion, the plaintiff has moved to change her claim notice.

According to the claim document, the plaintiff filed the injury complaint because she wants to seek damages for the accident that happened to her in front of a building which is within the jurisdiction of the defendant. The plaintiff has alleged that she sustained injuries due to a defective sidewalk. The defendant in this case is a city.

In the plaintiff’s notice of claim, the plaintiff indicated that the defendant is considered as the owner of the defective sidewalk. Therefore, the defendant has the responsibility to ensure that the sidewalk is free from defects that may endanger the safety of the public. The city should be held accountable since it has agents and employees that are paid to inspect, maintain and repair any defects found on public property.

According to the provisions of the law, a New York Injury Lawyer explained that the notice of claim serves as a requirement in order for the plaintiff to recover damages against a city or municipality. The plaintiff has two defendants in this case. One is the transport authority and the other is the city itself.

Upon reviewing the notice of claim, the transport authority has discovered that the plaintiff has not made an allegation towards the agency. The agency has also found that while the complaint includes the transport authority as liable, the notice of claim does not contain the same information. The defendant has asserted that it is not liable for the trip and fall accident.
The court is tasked to determine whether there is sufficient proof to establish the conditions required for summary judgment. The law states that the responsibility to keep roadways and sidewalks free from any defects falls on the city. This provision was cited by the transport authority to support its non-liability defense.

A Staten Island Personal Injury Lawyer said that according to the court, the party seeking a summary judgment must present sufficient proof that the complaint against it lacks merit. The failure of that party to do so will deny the motion for summary judgment. Once the party has established the evidence, the burden of opposing the motion lies on the other party. In this case, the plaintiff has to prove the existence of material issues for the case to proceed.

The transport authority does not have any link of ownership to the location described by the plaintiff. The court also noted that the plaintiff has not made any specification as to the liability of the transport authority. It was not clear to the court if the plaintiff has identified the transport authority in the notice of claim.

The notice of claim must be written and sworn by the plaintiff as a formal document for a claimant to recover damages. The document must also include the items that have been damaged or injuries sustained. The notice of claim is needed so that the court can decide if it contains sufficient information. The notice of claim will also allow the city or municipality to investigate on the matter. A Westchester County Personal Injury Lawyer said public records and other relevant documents will be checked concerning the alleged defect on the sidewalk.

Based on the evidence presented, the court has decided to grant the summary judgment as filed by the defendant. The plaintiff’s complaint against the transport authority was dismissed since there was no sufficient evidence to prove its liability. The plaintiff was denied of her cross-motion. Finally, the remainder of the case was ordered by the court to continue.

If you require the legal expertise of a lawyer, secure a meeting with Stephen Bilkis & Associates to help you get started. The competent skills of our legal team will help you in your legal battles.

These twins have had a rough life and for one that life has unexpectedly ended, the other scarred by chemical burns is still hospitalized. Twins, a boy and girl, who were placed in a foster home at the age of two suffered at the hands of their adoptive parents as evidenced by the death of the young girl and the chemical burns found the young boy. How could this young pair have had so much bad luck, questions one New York Injury Lawyer?

The ten year old twins were placed into foster care at such a young age because the mother and father had lost parental rights at separate times. The mother lost her rights very early on for alleged prostitution, abuse, and drug use. She was said to have used cocaine and opium. The Father similarly lost his rights because he had a criminal past that included the molestation of a child. Though the father says he did everything that was ask of him by the state, the state removed his children anyway. This is not unusual in such cases and that the foster home was then allowed to adopt the twins. The twins did have relatives at the time that were willing to raise the children, but the twins were instead turned over to the foster home.
Since that time the young girl has been found dead, wrapped in a plastic bag inside of a pest control truck. The girl’s adoptive father is being held as a suspect in the girl’s death. The brother, her twin, was found inside of a truck seizing and covered in chemical burns. The biological father, though he has not been allowed contact with his children since a very young age, wishes to see his son. He wishes to express his love and hopes his son will be placed with relatives so that he may begin healing following his release from the hospital.

The foster parents were observed by social services as all foster homes are supposed to be observed and though initially reports documented a clean, safe environment, other reports paint a much different story. Reports later released to a Staten Island Personal Injury Lawyer showed several incidents in which teachers had complained of the girl being dirty, bruised, and hungry. Reports from the Division of Family Services also showed that though the twins’ mother was once listed as deceased, her whereabouts were also listed as unknown.

The biological father states that he just wants to be a part of his son’s life. He states that the past does not matter. This fisherman by trade lives in a small apartment and hopes that his relatives will take custody and care of his son. He simply wants to be with his son during this healing process. No one has yet determined what will happen with the boy or whether his biological father will be able to see him, though it is certain that the child will not be returned to the adoptive family who has also lost custody of their other two adopted children.

This child needs legal counsel to fight for his cause. He, along with anyone who has suffered unnecessarily at the hands of another can contact Stephen Bilkis and Associates to receive the much needed help, support, and legal advice that is needed. Whether you have suffered from a broken bone, a back injury, or loss of sight, it is important to speak with us to ensure that your rights are protected and that you receive the compensation you deserve.

A tradition of San Antonio, Texas, is Fiesta, in which there is much consuming of alcoholic beverages. One Texas mother pleads for a bit of responsibility from revelers, however, requesting they think about what they’re going to do after drinking. Her daughter was killed by a drunk driver and she is very intent on seeing it does not happen to anyone else.

It might seem like plain common sense to make plans of what to do after drinking, like how to get home or where to sleep it off, but very few people actually ever do so.

In the San Antonio area, there were 5,769 arrests for drunk driving in 2010, which included 2,870 wrecks, and 55 deaths.

Due to Fiesta, April is a high point of drunk driving related deaths. It is difficult to create a direct link to official Fiesta events and actual crashes, but April is a month that sees a significant increase in fatal crashes in the San Antonio vicinity.

Reporters told New York Injury Lawyers that 10 people were killed in drunken driving incidents in April of 2008 and 10 more in April of 2009. There was only one less death in April 2010.

The mother pleading for some responsibility lost her daughter to just such an accident. Her 19-year-old daughter, a rising rodeo star, was killed in an auto accident with a drunk driver. The woman driving the SUV that struck the 19-year-old woman’s vehicle was driving on the wrong side of the road.

The 19-year-old woman was killed instantly and three friends in her truck were critically injured. She was buried a week before her 20th birthday.

The mother of the victim has no harsh words for the woman who caused the accident, who was a mother herself, with three children. “The drunk driver was killed as well, so we never got to hear her side of the story,” she told a Staten Island Personal Injury Lawyer. “All we know is she had some issues in her life to deal with. She chose to deal with those issues with alcohol, and she chose to get behind the wheel.”

These types of accidents leave scars that will take a lifetime to heal, if ever. Remember that if you or a loved one has been injured in an accident because of the negligence of another, you are entitled to just compensation for your injuries including medical expenses, and lost income from work. Be sure however, to act promptly. The sooner you contact counsel after your accident, the better your chances for a positive outcome.

Continue reading "Mother of DUI Victim Pleads Her Case in San Antonio, Texas" »

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

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