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.

On 3 September 1987 at approximately 1:00 a.m., defendant encountered the complainant, on St. Mark's Place in Manhattan. Complainant, who was an acquaintance of defendant, angrily confronted him about $5.00 which she and a friend had given him to procure "pot" for them a month earlier. A New York Injury Lawyer said the complainant accused defendant of having neither returned with the marijuana nor refunded the money. Defendant denied the accusation, claiming that he had in fact returned, but had been unable to find complainant.

Immediately prior to being stopped on the street by complainant, defendant had been riding a bicycle with his dog, a pit bull terrier, leashed at his side. As the disagreement escalated, complainant became so enraged that she picked up defendant's bicycle, which he had dismounted and left at the curb, and threw it into the street.

Conflicting evidence were presented as to the exact point in the dispute when the dog, agitated by the commotion and shouting, lunged at complainant and began to bite her foot (dog bite, injury).

The assault charge brought against defendant was predicated on the theory that he had deliberately loosened the leash to enable the dog to reach complainant. Both complainant and a second prosecution witness testified to that effect but their versions of the incident conflicted, with the witness stating that complainant had thrown the bicycle after an initial attack by the dog (dog attack or animal attack), which precipitated defendant's releasing the dog to lunge a second time. A Suffolk County Personal Injury Lawyer said the complainant, on the other hand, had testified to solely one attack, which came after she had thrown the bicycle.
Defendant denied any intentional action when testifying in his own behalf, claiming that the dog had seized complainant’s foot when defendant moved to retrieve his bicycle as complainant was coming back to the sidewalk after throwing it.

While the herein case presents little more than a credibility contest centering on whether defendant intentionally permitted the dog to attack complainant, an examination of the record persuades us that the prosecutor's summation was so highly inflammatory and interspersed with improper commentary and invective as to have unduly prejudiced defendant and denied him a fair trial. The inflammatory rhetoric escalated as the summation continued, with the prosecutor ultimately resorting to gruesome analogies; neither were the prosecutorial improprieties limited to dramatic expressions of pain and brutality. The closing statement also mischaracterized the defense by accusing defense counsel of claiming, in an oblique way, that defendant was justified in setting a pit bull terrier on a woman. When defense counsel objected to this comment, as he had on several occasions throughout the prosecutor's summation, an apparently incredulous court responded, "You're saying that's the defendant's position?". Although the defense objection was sustained and a curative instruction was given, the prosecutor persisted in this vein, telling the jury that, "It's not oblique, ladies and gentlemen, the suggestion to you that somehow complainant got what she deserved" and adding that this was "the only issue in the case, the only question that you have when you go into that jury room".

An NYC Personal Injury Lawyer said to reiterate, summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits. Above all counsel should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant. The repeated appeals to passion and sentiment and the other myriad of improper comments which comprised the prosecutor's summation in the matter before us served to deprive defendant of a fair trial
Accordingly, the judgment of assault in the second degree is reversed is reversed, on the law, and as a matter of discretion in the interest of justice, and a new trial is directed. The judgment convicting defendant of attempted robbery in the third degree rendered upon Indictment to run concurrently with the sentence imposed in the assault charge is vacated, on consent, as having been induced by the promise of concurrent sentencing, and the matter remanded for further proceedings.

The responsibility in taking care of animals as pets extends to making sure that the public is safe when it’s around such animal. When injuries result from an attack of the animal, the owner is liable. Know more of your rights in situations similar to the herein mentioned case. Whether you have been injured because of a dog bite, car accident, or medical malpractice incident, contact Stephen Bilkis and Associates for guidance and a free consultation.

Defendant-doctor and his professional corporation (defendant-one) rendered obstetric care to plaintiff-mother during her pregnancy with and birth of her baby. During the course of her pregnancy, she had four ultrasound examinations for which defendant-two rendered ultrasound reports. A New York Injury Lawyer said that based upon the reports and also the defendant-doctor’s examinations of the mother, it was determined that plaintiff-mother was carrying a large fetus for its gestational age. Defendant-doctor noted that plaintiff-mother should be watched for cephalopelvic disproportion.

On 17 January 1990, plaintiff-mother was admitted to defendant-doctor’s hospital for induction of labor by use of the medication Pitocin. Upon her admission, she was examined by an employee of defendant-doctor’s hospital, who determined that the mother’s pelvis was adequate to deliver the baby, and who administered the Pitocin, as ordered by defendant-doctor.

On 17 January 1990 at 5:00 pm, the mother began to deliver her baby. After emergence of his head, the head retracted back into the uterus, indicating that his shoulders were stuck. At this point, there was a strong fetal heartbeat, and pulsating in the umbilical cord. From 5:05 to 5:24 pm, eight physicians attempted to deliver the baby. Upon his full expulsion, the baby was no longer viable. At no time did he breathe on his own, outside his mother. Upon autopsy, the baby weighed 12 pounds, 12 ounces.

The complaint states three theories of recovery: first, on behalf of the baby for wrongful death and personal injuries (for the birth injury or birth injury accident); second, on behalf of the mother for mental distress, and; third, on behalf of both parents for mental distress based upon the theory of "zone of danger".

On the first issue, plaintiffs contend that since the baby was alive during the birth process, he was not stillborn, and is entitled to maintain a separate cause of action for wrongful death. Defendants maintain that the child was stillborn, based upon the definition of fetal death in Public Health Law: "Death prior to the complete expulsion or extraction from its mother."

There is no reported case which defines stillborn, fetal death, or live birth for the purpose of maintaining a wrongful death action. The Court of Appeals has addressed the issue in the context of homicide with three possible definitions of live birth. Under the first theory, live birth is birth after the child has reached that state of development where it is capable of living an independent life as a viable being. A baby alive during the birth process is a person. On the second theory, a separate and independent existence from the mother after the child has been completely expelled from the mother's body is required. On the third theory, it adds the requirement of independent circulation or respiration.

Whether the second or third theory is the appropriate definition of live birth, it is clear that the baby was not born alive. There is no evidence that the child had any independent existence, independent circulation or independent respiration following full expulsion from the mother at 5:24 pm. While there may be evidence of life of the fetus during childbirth, only evidence of life after full expulsion will confer person status upon the fetus enabling the maintenance of a wrongful death cause of action.

Under these facts, plaintiffs cannot maintain a wrongful death cause of action. A Westchester County Perosnal Injury Lawyer said there is no cause of action on behalf of a baby who is stillborn.

On the second issue, a cause of action for emotional damages must be predicated upon a breach of duty owed to the mother separate from the duty owed to the child, which breach proximately causes a physical injury. A plaintiff mother cannot recover for injuries which are caused by the breach of duty owed to the fetus.

When the alleged medical malpractice occurs during the delivery of the child, the physical injury to the mother must be separate from that which occurs in any normal childbirth, and must flow directly from the claimed malpractice. Plaintiffs claim that the defendants' failure to diagnose macrosomia and the concurrent shoulder dystocia caused a variety of physical injuries including rash and edema, loss of blood due to a particularly large episiotomy, severe pain and bruising occasioned by the attempts to dislodge the baby's shoulders from the mother's pelvis, and plaintiff's own fear of death.

There is no dispute that the rash and edema preceded the inducement of labor, and that plaintiff also suffered from a rash and edema in her first pregnancy. These are not injuries flowing from any breach of duty by defendants. A Suffolk Personal Injury Lawyer said the allegations of loss of blood can be considered a physical injury to the mother flowing from the defendants' malpractice if shown to be beyond normal childbirth. However, the blood loss in this case was the result of a large medial episiotomy, which has been held to be part of the normal childbirth process.

On the other hand, during the twenty minutes of the attempts to extract the child, dislodge his shoulders and break his clavicle to facilitate his removal, plaintiff was subjected to bruising and the fear of danger to her own life. According to the affidavit of her expert witness, these are not a part of normal childbirth. The expert further states that macrosomia, from which plaintiff suffered, can be life-threatening to the mother. This fear of death can be a separate physical injury to plaintiff flowing from the breach of duty owed to her by defendants.

Therefore, separate physical injuries to the mother as a result of the breach of duty owed to her by defendants, and her cause of action for emotional as well as physical damages is permissible.

On the third issue, plaintiffs raise a "zone of danger" theory of recovery for emotional damages. While such theory has been upheld in other cases involving the death of a fetus, it was held inapplicable to an action by a mother against her obstetrician for damages flowing from the death of the child delivered, holding that the legal fiction of a "duty" created in zone of danger cases is unnecessary and inappropriate when a duty was already owed by defendants to the mother. Any fear of death or bodily injury to the mother can be an element of the mother's action for physical and emotional injuries, and need not be raised as a "zone of danger" cause of action.

The plaintiff-father, however, does not meet the tests for a "zone of danger" claim. He was not placed in any fear for his own life. Furthermore, he did not suffer any physical injury.

Meanwhile, defendant-one and defendant-two also claim summary judgment on the basis of a lack of any proximate cause of plaintiff's injuries flowing from any alleged negligence by them. They base this claim on the argument that even if they breached some duty to the plaintiff with respect to properly estimating the size of the fetus, testimony of defendant-doctor shows that he did not rely on any information provided by them in formulating his own estimation of the size of the fetus.

While defendant-doctor may have so testified at his examination before trial, his actions in seeking the ultrasound evaluations from defendant-two and from relying on the assistance of residents and other personnel from defendant-one’s belies his testimony. His actions and the reasonable inferences to be drawn from them, create a factual issue as to proximate cause. Summary judgment cannot be sustained on this ground.

Defendant-one and defendant-two argue no breach of any duty as a matter of law. Defendant-two states that fetal weight was not requested by defendant-doctor so their failure to report fetal weight could not be a breach of a duty. However, the affidavit of plaintiff's expert asserts otherwise. This creates a sufficient factual issue to deny summary judgment.

Defendant-one states that all of its acts were under the direction of defendant-doctor. While the hospital need not intervene in the relationship between the patient and her private physicians, the hospital owes an independent duty to the plaintiff to perform without negligence. Plaintiff's expert raises deviations in the performance of the employees of defendant-one both prior to and during the delivery process. While defendant-one may ultimately be able to show at trial that each act was under the strict orders of defendant-doctor and, thus, avoid liability, there is no indication that this is the case as a matter of law.

Legal matters can be a lot for anyone to handle especially when the person involved has no legal background. If you wish to be enlightened on some legal matters like the aforementioned case, let us help you. Get in touch with Stephen Bilkis & Associates. Our New York City Medical Malpractice Attorneys or our New York City Birth Injury Attorneys, among others, are at your service.

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 respondent in the case is Liberty Mutual Insurance Company. The appellants in the case are Aetna Casualty & Surety Company.

Original Case

A New York Injury Lawyer said the current action for a judgment to declare the four insurance companies stems from an accident that was subject to action to recover damages for personal injuries.

The original case was a personal injury action case that resulted in the Catherine Cranston the plaintiff in the case, receiving a verdict in the sum of $1,526,000 for injuries that she received when she was hit by a car that was being driven by Esther Dancour. The car that was involved in the car accident was owned by the Oxford Resources Corporation and was leased to Manny’s Kiddie Shop, which is a business that is owned and controlled by Esther and her spouse Morris Dancour.

Current Case

The main problem in this declaratory judgment action is determining which of the different insurance policies that the defendants held are liable in the personal injury suit for the compensation of the judgment in the action. The vehicle that was involved in the accident was covered through an insurance policy that was issued by Liberty and provided $100,000 in coverage’s for the lessee, Manny’s, and a million dollars coverage for Oxford in a “step down” endorsement. Aetna provided a policy of $1 million of coverage to Manny’s under their business owners policy. INA provided an excess liability insurance policy to Mr. Dancour that provided $2 million worth of coverage to the driver of the vehicle, Esther Dancour. Liberty Insurance Company conceded to paying $100,000 towards the agreement in the judgment.

Liberty then moved for a summary judgment towards the obligations of the other various insurance providers. A Westchester County Personal Injury Lawyer said the Supreme Court ruling in the case directed Liberty to pay $1,100,000 towards satisfaction of the judgment. Aetna was directed to pay the remaining amount. In appeal to the case, the Kings County Supreme Court adapted the order and submits the issue for further discovery to determine the coverage in the personal injury action.

Upon further discovery, it was determined through the depositions given by Esther and Morris Dancour that Esther was driving the vehicle as a course of her job at the time the accident occurred. The underlying judgment was settled by the insurance companies and Liberty paid the entire policy limit of a million dollars plus interest and INA and Aetna paying the remaining balance.

In the current case, Liberty paid $1 million plus interest on behalf of Oxford to satisfy a portion of the underlying judgment in the personal injury case and is now asserting their right to be subrogated to Oxford’s right to seek indemnification from Esther Dancour who was driving the car at the time of the accident. However, since Liberty insured both Oxford and Manny’s, who employed Esther Dancour, the antisubrogation rule comes into effect and precludes Liberty from seeking subrogation of the rights of Oxford or indemnification from Dancour for any payment above $100,000. A Suffolk County Personal Injury Lawyer said the motion by Liberty for a summary judgment seeking enforcement of the prior order of the court is therefore denied and the cross motions in this area for Aetna and INA are granted.

The team of lawyers at the law offices of Stephen Bilkis & Associates can help you in any type of legal situation that you may find yourself in. We offer offices located throughout the metropolitan area of New York for your convenience. You may call any of our offices at any time to set up an appointment for a free consultation. We will help you determine the type of legal action that will be in your best interest to pursue.

A man was walking on the sidewalk next to a house fenced by chain-link. He saw that a dog was unleashed and freely roaming the property behind the chain-link fence. The man paused in front of the chain-link fence and rested his hand on the top of the chain-link fence. The dog within the fence climbed some cinderblocks. It lunged at the man’s hand. A New York Personal Injury Lawyer said the man sustained an injury on his hand caused by the dog bite. After the dog bit the man’s hand, the dog backed away.

The man sued the dog owner seeking damages to compensate for the injury he sustained consequent to the dog attack. The man claims that the dog owner knew or should have known that his dog was dangerous, that the dog had a vicious propensity and was prone to bite or attack.

In the alternative, a Westchester County Personal Injury Lawyer said the man also brought a cause of action in the same complaint alleging that the dog owner was negligent. He left cinderblocks piled on the corner of his property which the dog climbed on and was the very reason why the dog was able to reach his hand and bite it.

The dog owner gave a deposition and he stated that his dog was a 12 year old purebred husky. The dog had never bitten anyone before. It had never growled or bared its teeth when anyone approached. He also testified that the dog had never exhibited any threatening or menacing behavior.

The dog owner also filed a motion for summary judgment asking that the complaint against him be dismissed for the failure of the man to prove that his dog had any vicious propensity.

The court granted the motion for summary judgment and dismissed the complaint for damages. A Suffolk County Personal Injury Lawyer said on appeal to the Supreme Court the only question was whether or not a triable material issue of fact has been raised that renders the order of summary dismissal improper.

The Court held that there was no material issue of fact raised in the pleadings or in the motion that has to be tried by a jury. The Court held that the man simply failed to allege and give preliminary evidence that the dog owner knew or should have known that the dog had vicious propensity that proximately caused the dog bite and the dog attack.

A dog running in the yard chasing chickens is not evidence of vicious propensity. A dog chasing after bicycles, motorcycles or cars is not evidence of vicious propensity. A dog barking at strangers is not evidence of vicious propensity. These are normal territorial behaviors of a dog.

The man himself testified that the dog just lunged at him and bit his finger but after that, the dog backed away. The dog did not bark or growl at him and the dog did not attack him viciously: he simply nicked the finger. There is no evidence of vicious propensity here.

The cause of action for negligence also fails. The man’s theory that the dog owner was negligent because he placed a pile of cinderblocks on his property near the chain-link fence that allowed the dog to reach his finger cannot be given due course either. This cause of action is a common law action for negligence which cannot be the basis for a suit in damages due to a dog attack or a dog bite.

Also, if the common law action for negligence were to be given due course, the man must proffer evidence of a duty of care owed by the dog owner to the man to prevent the animal’s misbehavior. In this the man has also failed to allege and to preliminarily prove factual circumstances that show that the dog owner had a duty of care. There is no showing that the dog had in the past displayed vicious tendencies that gave the dog owner a heightened duty of care.

The order granting the motion to for summary judgment dismissing the complaint was upheld.
Were you injured consequent to a dog bite? Did you suffer damages due to a dog attack? Are you wondering if you have a cause of action for damages? Whether you have been injured do to a dog attack, car accident or construction accident, call Stephen Bilkis and Associates today. Ask to speak to any of their New York Dog Bite Lawyers. Their New York City Dog Bite Lawyers can assess the facts of your case to see if you have a viable cause of action against the owner of the dog that bit you. Their NY Dog Bite Attorneys can help you present your case and present evidence in your behalf. Go to any of the conveniently located offices of Stephen Bilkis and Associates today. Speak to a NYC Dog Bite Attorney and begin the process of getting compensated for the legal injuries you sustained.

These are two consolidated cases of pregnant women who gave birth to stillborn babies because of the medical malpractice and negligence of their obstetricians.

A New York Injury Lawyer said in the first case, the woman was under the care of an obstetrician and a nurse-midwife. At 1:45 am. Of September 25, 1994, the pregnant woman called the nurse-midwife to inform them that her bag of waters had broken and that there was a lot of blood. They were instructed to go to the birth center.

The couple arrived at 3:00 a.m. at the birth center and while there, she expelled some more blood. The pregnant lady wondered aloud to the nurse-midwife if she should go to the hospital across the street for emergency treatment. The nurse-midwife called her obstetrician who ordered that the pregnant lady be transported to a hospital in Manhattan.

When the pregnant lady and her husband arrived in Manhattan, it was 3:45. They had to wait for the doctor who arrived forty-five minutes after. The doctor detected a slowing of the baby’s heartbeat. But instead of immediately performing a cesarean section, the doctor performed an ultrasound. By the time the ultrasound was performed, the baby had no more heartbeat. Still thirty minutes passed before the baby was finally delivered by cesarean section and it was born dead. The pregnant lady’s placenta had ruptured and caused the fetus to die before it was extracted.

The pregnant lady and her husband then sued the obstetrician and the nurse-midwife for medical malpractice and for negligence for failing to properly and timely diagnose her placental rupture and for failing to timely perform a cesarean section which could have saved her baby’s life. The woman claimed damages for emotional distress at the loss of her baby but she alleged no direct injury to herself. The doctor and the nurse-midwife moved for a summary judgment of dismissal on the ground that the woman failed to allege any direct physical injury to her and so she cannot sue for damages due to her emotional distress at the injury sustained by her baby only.

In the other case the pregnant lady was told by her obstetrician in August 1999 that she was carrying twins. At the end of October during a follow-up visit that she was experiencing lower abdominal pain and cramps. The obstetrician performed an ultrasound and told her that one of the twins was pressing against her sciatic nerve. A Suffolk County Personal Injury Lawyer said two days after that the pregnant lady called her doctor and told him that she had intense pelvic pain and nausea. The doctor just told her to lie down to relieve the pressure on her sciatic nerve. He told her that her nausea was probably due to something she ate.

Two hours after she called her doctor, the lady sat in the toilet and one of the twins popped out of her. They called an ambulance and the pregnant lady with her baby still attached to her by the umbilical cord was rushed to the hospital. In the hospital, she delivered the other twin. Both died at only eighteen weeks of gestation.

Other doctors diagnosed the pregnant lady and found her to have an incompetent cervix. She had surgery to repair her cervix to prevent the premature explusion of the fetus. A year after the surgery, the lady gave birth to a premature baby girl.

The pregnant lady and her husband brought suit against the obstetrician for medical malpractice and for negligence for his failure to correctly diagnose the condition of her cervix. She claimed damages for the emotional pain she suffered from the loss of viable babies that she lost because the doctor failed to treat her in accordance to the level of care dictated by accepted medical practices.

The doctor also filed a motion for summary judgment asking for the dismissal of the complaint for damages arguing that since the mother did not claim and direct physical injury sustained by her, she cannot recover damages for the emotional distress brought about by the still birth of her babies even if the doctor were found to be guilty of medical malpractice and negligence.
These two cases are on appeal and the Supreme Court decided to decide them jointly. The Supreme Court decided to overturn the ruling they had made in 1985 where they proclaimed that a mother cannot recover for emotional distress when her doctor’s medical malpractice caused her to miscarry or to give birth to a stillborn child if she does not also show that she suffered a physical injury separate from the suffering of her fetus and which is not a normal incidence of childbirth.

The Court refused to apply this twenty-year old ruling to these two cases stating that they can no longer defend the logic or ruling in that old case. A Manhattan Personal Injury Lawyer said they pointed out the discrepancy created by that ruling: babies who are injured while they are still in utero can sue the doctor for negligence and medical malpractice provided they survive the pregnancy. But babies who die in the womb or are miscarried or are delivered stillborn cannot sue for the pain and injury they sustained. Their mothers cannot sue for the emotional distress of losing the baby if she does not show any other physical injury she sustained apart from childbirth.

In these two cases, the Supreme Court ruled that if the stillborn, miscarried baby cannot sue, then the mother can because the injury was done to the mother. The Court found that an obstetrician owes a duty both to the woman and to the baby she was carrying to make sure that he exercises care in their treatment. When a fetus is injured in the womb and dies as a result or is miscarried, there is a breach of the obstetrician’s duty of care to the patient (the mother). The mother is therefore entitled to recover damages for emotional distress.

A New York Medical Malpractice Lawyer has the duty to prove negligence or medical malpractice on the part of the obstetrician. The NY Medical Malpractice Attorney must show that the doctor deviated from accepted medical practice and this resulted in the injury to the fetus which caused its death. Thanks to this 2004 ruling, the NYC Medical Malpractice Lawyers at Stephen Bilkis and Associates need no longer prove a separate and direct physical injury to the mother for her to recover damages for the death of her fetus. Call Stephen Bilkis and Associates today. Speak to any of their NYC Medical Malpractice attorneys and ask for their assistance to bring a claim for medical malpractice against a negligent obstetrician.

Everyone who owns a dog in the United States should be aware of the many legal issues associated with having your pet. Most of us who own dogs, consider them four legged family members. When an incident arises that could jeopardize their survival, we become frantic. However, people are human and often make ill-advised choices. A New York Injury Lawyer says any animal, human or other, will bite if the situation calls for it. Responsible dog owners understand this. A responsible dog owner will not put his or her dog in a situation where the dog will feel that it is necessary to fight or flee.

Unfortunately, even the best-intentioned dog owners have a tendency to assume that a dog understands all human actions. What they should be doing, is attempting to understand how your dog will view any given situation in order to avoid an encounter that could jeopardize your dog. Early dog training classes are good for dogs. A dog is never too old to learn. The earlier the dog starts learning how to communicate with humans and vice versa, the better the chances are that the dog will not get into trouble with the law later in his life. When a dog is placed into a situation where he feels threatened, he will bite. When a dog bites a person, the dog is usually the one who is killed. It doesn’t seem fair that a dog can be put to death for defending itself, but there is no self-defense plea in dog bite cases.

The laws of New York state that in order for the owner to be charged for the vicious actions of his or her dog, they must have knowledge of the vicious propensity of the dog. If the owner has never been in a situation to suspect that the dog might bite, New York law says that the owner is not responsible. If an animal has teeth, they can bite. A Westchester County Personal Injury Lawyer said that most domesticated animals make the conscious choice not to bite. However, there are many situations where dogs have gone years with their owners never showing a desire to bite a person and then one day they bite someone.

When a dog bite case goes to court, the owner of the dog must prove that they did not know that the dog was dangerous. If they did know that the dog was dangerous, it is incumbent upon them to prove that they took steps to ensure that the dog would not hurt anyone. In court, the judge must instruct the jury, only on the information that is essential for the trial.

In one appeal, from the Supreme Court Second Department dated November 24, 1986, a verdict to recover damages for personal injuries which was entered on September 10, 1985. A Suffolk County Personal Injury Lawyer said the Supreme Court ordered a reversal of the trial court’s verdict because the judge gave improper instructions to the jury before jury deliberation. Specifically, the judge stated that dogs bite for many different reasons. He told the jury that dogs do not always bite out of viciousness, sometimes they bite out of self-defense, if they are being teased, or to protect someone. While this information is certainly true, there was no evidence given in the trial of the case to support any of those theories.

The court found that the instructions to the jury should tell them what the law says as it applies to the particular facts in the case being heard. The Supreme Court determined that the alternate reasons that the judge gave the jurors for the dog’s actions, effectively prejudiced them from finding in favor of the person who was bitten by the dog. The victim of the dog bite appealed and the verdict in the case was overturned. Specifically, the justices stated that the evidence did not support the examples provided by the judge.

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Dog owners have many responsibilities. Sometimes, they do not make appropriate choices either because they are hurried, or just out of ignorance. One common bad choice that some dog owners make involves tying their dog up outside of a business while they go in. A dog that is tied up in a strange place if frightened. It does not have an area of safety in which to retreat. This is a bad situation waiting to happen. Further, when a dog owner leaves their dog unsupervised in a public area like the front of a business, they are trusting that everyone who passes the dog will make good judgments. I find that this is rarely the case.

There are certain rules to dealing with dogs. A New York Injury Lawyer said most Americans are taught not to approach a strange dog. When you approach someone’s dog, you ask if you can pet the dog. Then you extend the back of your hand for the dog to sniff. Never go face to face with a dog, the dog will consider this to be an aggressive move and could instigate an attack. I find that people rarely abide by these rules. When they don’t, it will always go worse for the dog than the person who did not use good sense.

In one such case, a dog owner tied his dog in the parking lot of a business and left the dog unattended. The business was an ice cream shop that was closed. The owner was inside preparing the business to open for the season, but had no knowledge of the dog’s owner, or why he chose that parking lot in which to tie his dog. A Suffolk County Personal Injury Lawyer said the mother and her three year old child went into the parking lot, and the child was bitten.

The mother filed a lawsuit to recover damages naming the owner of the dog, the owner of the ice cream business, and all of the employees of the ice cream business. One such employee was not even at work on the day that the child was bitten. She requested a summary judgment to remove her from any liability in that she was not at work, had no knowledge of the dog, did not know the dog’s owner, and did not know the child who was bitten. A Weschester County Personal Injury Lawyer said the court agreed and granted her motion for summary judgment removing her from liability.

There are times when one must wonder who is at fault in an incident like this one. The dog was tied up. The only way that the child could have been bitten by the dog while it was tied up was if she approached the dog within close range. Her mother was with her and allowed her to venture into striking distance of a strange dog. This type of poor judgment is at least partially the reason for this incident. If they had not approached the dog, the child could not have been injured.

However, the dog owner was also at fault. When one is responsible for the actions of another being with its own brain and problem solving concepts, it is never a good idea to leave them unsupervised in a strange environment. If the owner had been with the dog, it is less likely that the incident would have occurred.

In this incident, there is no sense in attaching liability to the owner of the ice cream shop, or her employees. Since the shop was not open, she was not even expecting anyone to be in her parking lot. She could not have predicted that a stranger would tie his dog in the parking lot, or that a mother would allow a three year old to go into the space that the dog could reach on its leash to be bitten. The store owner’s employees who were not even at work, certainly hold no liability here. It is interesting to note that the court also viewed it this way and granted summary judgment to the ice cream storeowner as well.

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A mother alleges medical malpractice as a result of the failure of the hospital in evaluating properly her condition as well as treating her when she presented at the hospital in approximately 32nd week of pregnancy with complaints of abdominal pain, she delivered a baby at home unattended by a medical personnel. The baby emerged in a footling breech position and was later determined to have died of asphyxia, a condition where the body is severely insufficient in supply of oxygen, because its head had been wedged at the birth canal. The mother claims that she suffered great emotional pain as a result of this event and its consequences. The complaint alleges that the baby was born alive, and names the baby's estate and the baby's father as co-complainant. The hospital brought a third-party action against the physician who allegedly treated the mother on her final visit to the said health care facility prior to the home birth.

A New York Injury Lawyer said that following the pretrial disclosure, the hospital and the physician moved to asked for decision without proceeding to dismiss the complaint on the ground that the baby had been stillborn. The complainant was prohibited from claiming damages. At the time the motion was made, the prevailing rule under the law was that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth, absent a showing that she had suffered a distinct physical injury.

The mother in opposing the motion contented that her baby had briefly lived. The civil court denied the request to dismiss the complaint, concluding that the record presented did not establish that the baby was stillborn.

After the case had been placed on the trial calendar, the mother served a revised expert witness testimony, a notice of medical report, and a further expert testimonial. A Nassau County Personal Injury Lawyer said that was the first indication that the mother would call an expert witness at trial to establish that the mother suffered emotional injuries. However, the hospital and the physician moved to disqualify the complainants from revealing expert testimony at trial, contending that recovery for such injuries depended upon the mother proving that the baby had been stillborn, and that the mother was intelligently impede from taking that position, which was at odds with the facts as pleaded and as complainant had argued in opposition to the motion for decision dismissing the complaint. In an order, the civil court denied the motion and directed the mother to revise the complaint to allege that the baby was stillborn, finding that the doctrine of legal impediment did not apply when a party took contradictory positions within the context of a single lawsuit.

The evidence attested on trial that the mother was first treated at the hospital during her pregnancy when she presented with headache, fever and lower abdominal pain and was hospitalized for six days. Subsequently, a Suffolk County Personal Injury Lawyer said the mother returned to the hospital with complaints of pain, lower abdominal pain, and spotting, and was admitted for the purpose of ruling out labor. She was treated with a drug that relaxes the uterine muscles and also used to stop premature labor, and then she was placed on a fetal monitor. Further, a culture test was taken and an antibiotic was administered. The mother was discharged on with a diagnosis of cervicitis.

Two days after the mother’s discharged, she was again admitted to the hospital with similar complaints. During the admission, she received another drug used to prevent or stop premature labor, and was discharged against with medical advice. Four days after, the mother returned to the hospital. She was determined not to be in labor and given another antibiotic for a possible urinary tract infection then sent home. On the succeeding day, the mother was approximately on her 32 to 33 weeks of pregnancy. She had triage admission at the same hospital and again determined was not in labor then she left.

The mother again reported to the hospital later the same morning. Although there was no hospital record made of that visit, it was certain that the mother was seen by medical personnel at that time, was given a prescription of certain drug written on the physician’s prescription pad and was sent home. On the following day, while at home, the mother began experiencing an urge to urinate but was unable to empty her bladder. At approximately 12 noon, the mother went into abrupt labor. Her brother called for an ambulance but the baby was born foot-first at home. There was a testimony that while the baby was only partially emerged, she was pink and kicking. However, the baby's head lodged in the birth canal and on that specific time the baby appeared gray and had no detectable pulse. Efforts of resuscitation begun at home by an EMS technician and was continued in the ambulance going to the hospital. From the ambulance, the baby was reported by the EMS technician to be in arrest and upon arrival at the hospital the baby had no pulse or respirations. Suctioning, bagging and intubation was done and pulse respirations and an EKG rhythm were briefly recorded. However, after several minutes the baby was pronounced dead. The death certificate states that the baby died at the age of approximately one hour because of asphyxia due to unattended breech delivery with head wedged in birth canal. However, the mother’s expert physician testified that a breech baby born cyanotic with zero pulse and zero respirations approximately half an hour after its feet emerge is stillborn. Consequently, there was conflicting evidence presented as to whether the baby was born alive or was successfully resuscitated for any period of time.

The hospital’s experts testified to their belief that the mother had not been in labor when she went to the hospital on the days before her abrupt delivery. It was their contention that the placenta became infected following those triage visits to the hospital, and that the infection caused the sudden delivery of the baby at home. As to the argument, the mother's expert countered with his opinion that the placenta became infected because of its exposure to microbial agents during the time that the mother was at home with ruptured membranes and a partially delivered baby as well as during her ambulance transport to the hospital. It was his opinion that, rather than causing the premature delivery, the placenta became infected during the extended delivery process that occurred in non-sterile conditions.

The jury recognizes the duty to consider whether the jury verdict deviated materially from what would be reasonable compensation. Based on the record, the review of damage awards involves the use of two distinctly different standards. One analysis focuses on whether or not the verdict is supported by the evidence. Another line of inquiry requires us to determine what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries.

The jury's judgment reflected its decision to resolve the battle of the experts in the mother’s favor. The jury finds no grounds for reversal of the decision, which was based upon significant evidence.

Considering the nature of the mother's injuries, the jury concluded that the civil court properly refused to reduce the jury's award for the mother's past pain and suffering. The court noted that the judgment entered was awards judgment not only in favor of the mother individually, but also in favor of the administrator of the estate of the baby. The court corrected the clerical error by modifying the judgment to provide that the award is only in favor of the mother individually.
It is very disappointing for a parent to see her own baby without life. If you want to provide your child with justice she deserves, call our NYC Birth Injury Lawyer and our NYC Medical Malpractices Lawyers for legal guidance. Helping the person claim his rights can lessen the pain and suffering he is experiencing, so call a NYC Injury Lawyers at Stephen Bilkis & Associates to find out how.

The plaintiff in this case is J. Leonard Spokek. The defendant is the Liberty Mutual Insurance Company.

The Case

A New York Injury Lawyer said that the plaintiff filed an action declaring that Liberty Mutual Insurance Company must defend and indemnify the plaintiffs from Cohen V. Spodek, Index Number 3456/87. The defendants from the initial case were Nevin Cohen and Kenneth Skrudna. Index Number 3456/87, was filed in the Civil Court of Kings County, and included Liberty Mutual (the defendant) appealing a judgment dated September 27th, 1988 from the Supreme Court of King's County which granted that relief.

Results

The judgment resulted in the modification of the original judgment. A paragraph in the original judgment stated that the Liberty Mutual Insurance Company must indemnify the plaintiffs for any damages that resulted from the action involved in Index Number 3456/87, the original case filed in the Civil Court of Kings County. The judgment requires the deletion of that paragraph. In its place, a provision was inserted stating that the underlying action must be resolved first. Only then can Liberty Mutual Insurance Company face a determination of any obligation to indemnify the plaintiffs.

 The Previous Case

The initial case, Cohen V. Spodek commenced in 1985. The defendants were Nevin Cohen and Kenneth Skurdna. The plaintiffs in this case included but were not limited to, Interboro Manaement Company, 1601 Beverly Realty Corp. and Leonard Spodek. The underlying action included a complaint which stated that Cohen and Skurdna were tenants in an apartment included in a property owned by Spodek. According to the complaint, payments were made by the tenants that should allow them to take possession of the apartment in question according to the terms of a rent-stabilized lease. They then took possession of that apartment.

A Suffolk County Personal Injury Lawyer said that following this possession, the complaint alleges that Spodek took action to prevent the tenants from returning to the apartment. This included changing the locks on the doors to the property without obtaining the consent to do so from the tenants. The property belonging to the tenants that was in the apartment was appropriated by Spodek.

Spodek held general liability insurance with Liberty Mutual Company. The summons and complaint was forwarded by Spodek to Liberty Mutual. After receiving such, Liberty Mutual would not provide coverage or defend Spodek. Liberty Mutual would also not indemnify Spodek for any loss that would result as an effect of the action. A Westchester County Personal Injury Lawyer said the reasoning for this was that the losses suffered by the tenants were an intended result of the actions taken by Spodek. According to Liberty Mutual's policies, injuries that are intended are not covered, so it declined coverage.

Results (cont.)

Agreement was found with the Supreme Court. Liberty Mutual is responsible for defending Spodek in the original action. Liberty Mutual is required to defend Spodek because of the “Special Multi-Peril Policy” included in the policy. The tenant’s complaint asserts the loss of access to the apartment and of personal properly. They also assert that false eviction took place, that a contract was breached and that the Administrative Code of the City of New York was violated. Punitive damages are being sought as a result. Some of these specific assertions are provided for in the “Special Multi-Peril Policy” which is why Liberty Mutual must defend Spodek.

Insurers are required to defend their insured clients even when suits are groundless. It has a broad duty that requires defense of the insured even if the claim is not clearly covered by the insurance. Sometimes this duty applies even if the claims are completely outside the initial protection offered by the insurance.

According to the pertinent policy, Liberty Mutual must defend Spodek if property damage happens as a result of an accident that was not initially intended from the point of view of the insured. This concept of property damage applies to the use of the designated property.

The underlying claim must be resolved before decisions can be made in regards to whether or not Liberty Mutual must indemnify Spodek. A special verdict should be sought by the Supreme Court to ascertain whether compensatory damages need to be awarded. Punitive damages need be indemnified by Liberty Mutual.

Legal options for every situation can be evaluated by the team of lawyers at Stephen Bilkis & Associates. We understand the wide variety of legal situations that arise, whether it be from a car accident, premises liabilty incident or medical malpractice, and endeavor to help our clients find favorable outcomes in any situation. Throughout the New York City greater metropolitan area you can find our offices, any of which will be happy to offer you a free telephone consultation.

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 woman was diagnosed to have Rh-negative blood. She conceived and gave birth to a baby in 1982 which had Rh-positive blood. A New York Injury Lawyer said to prevent the mother from having an immune reaction to Rh-positive blood in her baby’s body, she was given RhoGAM. This medicine’s sole purpose was to prevent the mother’s body from producing antigens that will attack the blood of any future babies she will conceive the way her body would fight off any harmful virus or bacteria.

When the woman conceived and gave birth to her second child in 1984, her baby also had Rh-positive blood. The woman repeatedly asked her second obstetrician to give her a shor of Rho-GAM so that she will not have a reaction to the Rh-positive blood of any child she conceives in the future. The second obstetrician refused and failed to give her a RhoGAM injection. He told her that she didn’t need it.

In 1987, the woman conceived her third child. When she gave birth to her third child, she had a blood disease and pulmonary problems. These health problems of her third child were directly the result of the second obstetrician’s failure to inject her with RhoGAM after she gave birth to her second child. When the second obstetrician refused and failed to inject her with RhoGAM, her body developed antibodies against Rh-positive blood. Her body produced antigens that attacked her third baby thinking that her third baby’s blood was a harmful pathogen.
The woman filed a complaint in behalf of her third child for medical malpractice against the second obstetrician and the hospital whose staff failed and refused to inject her with RhoGAM. The woman and her husband contend that his negligence and medical malpractice directly caused the injury to their third baby.

The woman also included as causes of action in her complaint, for her own claim for damages for the personal emotional distress she suffered. She also included a cause of action for her husband’s emotional distress.

The obstetrician and the hospital both filed a motion for summary judgment asking that the complaint in its entirety be dismissed. A Queens Personal Injury Lawyer said they claim that since the alleged injury to the mother was sustained by her in 1984, she cannot claim for it in 1987 as it is barred by lapse of time. Also, they claim that they cannot be made liable for injury to the mother which resulted in injury to the fetus when the injury to the mother was allegedly committed years before the fetus was even conceived.

The court granted the motion for summary judgment which is now the subject matter of this appeal. A Suffolk County Personal Injury Lawyer said the only question presented before the Supreme Court is whether or not the complaint was filed beyond the time limit prescribed by law.

The Supreme Court sustained the order of the trial court granting the motion for summary judgment and dismissing the complaint.
The Court held that the woman can claim an exception to the statute of limitations if there was any fraud, misrepresentation of deception on the part of the obstetrician and the hospital to induce her to delay the filing of her claim. Since there is no such claim of fraud, the complaint does not fall under this exception; it is time-barred.
The Court also noted that another exception to the statute of limitations is when a patient discovers a doctor left behind a foreign object in her body after surgery. The patient is given one year from the date of discovery of the foreign object to file a complaint for damages. Since this is not the case here, this exception does not apply either.
The Court also held that the negligent act and medical malpractice consists of an injury to the mother in 1984 which resulted in injury to her fetus which was conceived only in 1987. Under the law, there can be no recovery for injuries sustained by the mother which affected a fetus which was not yet in utero at the time of the injury to the mother.
A New York Medical Malpractice Lawyer needs to prove that a doctor failed in his duty to treat his patient with care. A New York City Medical Malpractice Attorney also needs to prove that in treating the patient, the doctor deviated from accepted medical practice. Most important of all, a NYC Medical Malpractice lawyer has to see to it that the complaint is timely filed. Call Stephen Bilkis and Associates today. Speak to any of their NY Medical Malpractice attorneys. Do not put off your right to claim compensation for your legal injuries. At Stephen Bilkis and Associates, their New York City Medical Malpractice lawyers are willing to assist you.

In this case, Patrick Balsamo is the respondent. The City of New York is the appellant and defendant.

Original Ruling

A New York Injury Lawyer said the city of New York originally filed a cross motion which asked for a summary dismissal of a case. This case was based upon a violation of Labor Law, and the action for damages sought was originally ruled upon in the Supreme Court of Kings County on March 28th, 2000.

Appeal

The City of New York appealed whether claims under General Municipal Law can apply when Labor Law is violated.

Ruling

During the course of the appeal, it is ruled that in fact a violation of Labor Law can provide for claims under General Municipal Law.

Case History

The original case in question involved a car accident. Patrick Balsamo was employed as a New York City Police Officer when the accident occurred and he sustained personal injuries. The defendant Yui Tung Chan collided with the radio motor patrol car in which Balsamo was working as a recorder. The original accident took place shortly before 3AM on the 29th of April. During the collision, Balsamo smashed his knee into the edge of a computer unit mounted in the car. The edge of this unit was not covered in any padding, and as so, was quite sharp.

After the accident Balsamo started action against the City. The driver of the vehicle Balsamo was in also commenced an action against the city.

The original allegation was that the City's negligence resulted in the installation of the computer which violated several laws. The city was late ordered to show documentation in regards to the installation of the unit as well as any maintenance done to the computer. A Suffolk Personal Injury Lawyer said the second bill of particulars was later added to the action which involved the General Municipal Law. The accusation was that because no padding was installed around the computer that the City had violated its duty.

The original Supreme Court Ruling dismissed the parts of the action related to all parts of the law with exception to the violation of General Municipal Law 205-e. The city appealed the particular part of its cross motion for dismissal of that part of the case.

Labor Law ensures that all employees can work in a safe environment that is free from anything which stands a high chance of causing them harm. Public employees are protected by a bill that amended the Labor Law to ensure they had that same protection. A Westchester County Personal Injury Lawyer said the language in the specifically applicable sections of the Labor Law is very specific and indicates that employers absolutely must provide a safe environment for workers at all times.

The move to dismiss by the City which states that the Labor Law does not apply due to the nature of police work and the inherent dangers does not apply in this case. Even if the work itself is dangerous, the City is obligated to provide a workplace that does not increase the danger of injury in any way.

The original ruling of the Supreme Court was correct. It needed to be determined whether or not the sharp edge of the computer in question could be recognized as a potential safety hazard. There was also a fault on the part of the City to provide all of the information requested by the court in regards to the console. This resulted in the affirmation of the original ruling.

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

Case History

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

Case Background and Facts

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

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

Defendants Arguments

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

Plaintiffs Argument

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

Case Results

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

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

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The 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 plaintiff in the case is William Stout. In action number 1, the third party defendants are East 66th Street Corporation and the plaintiffs and respondents in the third party action is Tishman Construction Corporation. In the second action the defendant and respondent is Interstate Fire and Casualty Company and the appellants and defendants is the Zurich American Insurance Company.

The case is being heard in the New York State Supreme Court in the Appellate Division. The judges in the case are Mark C. Dillon, J.P., Ariel E. Belen, JJ, Ruth C. Balkin, and John M. Leventhal.

Case Facts

This case consists of two different actions. The first action is seeking to recover the damages for personal injuries. The second action is for an inter alia judgment that declares the defendants Zurich American Insurance Company and Interstate Fire and Casualty company obligated to indemnify and defend Tishman Construction Corporation and Tishman Interiors Corporation in the first action.

A New York Injury Lawyer said Zurich American Insurance Company is a defendant in the second action and is appealing an order from the Kings County Supreme Court that ordered a summary judgment that declared they are required to indemnify Tishman Interiors Corporation and Tishman Construction Corporation who are defendants of the first action. The ruling is based on an insurance policy that is issued to the Atlantic- Heydt Corporation. Zurich American Insurance Company declares that the coverage issued under the insurance policy was disclaimed in a timely manner and that they are not responsible for defending Tishman Construction and Tishman Interiors in the first action.

The cross motion filed against Fire and Casualty Company, who is a defendant in the second action, was for a summary judgment that stated they were not responsible for defending the Tishman Corporations in the first action as the additional insured on a policy that they issued to Evergreene Painting Studios. A Suffolk County Personal Injury Lawyer said the company claims that the policy issued to Evergreene Painting Studios was excess insurance coverage and the policy that was issued to Atlantic-Heydt Corporation was the primary insurance coverage.

Court Orders

After reviewing the case the Court orders that the provision that granted the Tishman Corporations the summary judgment that declared Zurich American Insurance Company will be modified on the law. The new provision will deny this branch of motion. Additionally, the provision that grants the branch of the cross motion for Interstate Fire and Casualty Company for a summary judgment stating that they are not obligated to defend the Tishman Corporations in the first action as the additional insured is deleted. A Westchester County Personal Injury Lawyer said the provision will be substituted that the cross motion will be modified and affirmed to be appealed in the Kings County Supreme Court without costs or disbursements.

As the second action is a declaratory judgment action it must be resubmitted to the Kings County Supreme Court as well. An entry of judgment, inter alia, to declare that the Zurich American Insurance Company policy that was issued to Atlantic is the primary insurance policy in the matter and the policy issued by Interstate Fire and Casualty Company to Evergreene is issued as the secondary insurance in the case. The issue of Zurich American Insurance Company not timely disclaiming coverage in the matter under the policy that was issued to Atlantic is dismissed.

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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.

A man was killed in a motor car accident and his only asset is the cause of legal action for wrongful death. The attorneys for the administrators have received an offer of $12,500 in settlement of that claim. The two car accident in which the man was killed gave rise to suits by three different complainants and the $12,500 offer represents one-third of entire policy limits of the two opponent's insurance coverage.

The administrators' petition asks that the entire amount, after payment of attorneys' fees and debts and expenses be paid to the man's mother and father. However, the appointed guardian of the man’s out-of-wedlock son contends that his ward is entitled to the full amount of the recovery. The department of social services entered a claim against the estate in the amount of $6600 for the support of the man’s out-of-wedlock child. A Suffolk County Personal Injury Lawyer said the claims by the department of social services for payments made to support the child cannot be satisfied from the funds recovered in a wrongful death proceeding. However, the only assets of the estate is the wrongful death proceeds, the department of social services has withdrawn its charges. The recovery for pain and suffering belong to the man, his estate and recovery for wrongful death do not become estate assets, but bound to the benefit of those who lose financial support by the wrongful death. By a written agreement with the department of social services the man acknowledged paternity of his son. No evidence of financial injury on the part of the parents of the deceased man was introduced.

After all expenses, attorney's fees and guardian fees there will be only approximately $6,000 left of the wrongful death settlement. The entire net amount is to be given to man's out-of-wedlock child, as the only heir for the wrongful death settlement which suffered financial injury because of his father’s death.

Finally, arose at the trial the problem of custody of the out-of-wedlock child. The paternal grandfather of the child strongly urged that the child be awarded to his custody to live with him. The child had been voluntarily given by the mother into the custody of the department of social services and for boarding custody and care with one of the social welfare agency. The mother of the child was present in the courtroom but not seeking custody. A Westchester County Personal Injury Lawyer said the department of social services strongly opposed the paternal grandfather's custody request . Under the said situation, the application for custody by the paternal grandfather is denied with leave for him to renew his application in the family court proceeding. In that court, if permanent neglect should be found for the purpose of separating the child from his mother's rights, the social work and probation services available to the family court would better serve the interests of the child. A New York Injury Lawyer said the paternal grandfather's home can be considered with the help of probation or foster care in an adoptive home may become available and may appear preferable to boarding home care. The custody of the child is, therefore, left temporarily on the mother's voluntary consent without change, and subject to further proceedings in a court of competent authority.

The conditional fee of the attorney who succeeded in recovering $12,500 for wrongful death by settlement is limited to $3500 plus $66 disbursements, the guardian claim for $1,000 through final pronouncement is moderate in view of the effort and success he has, with the help of his attorney, achieved for his charges and the travel expenses of the administrators are limited and allowed to the extent of $150 for each. The entire net estate after the said charges shall be deposited for the benefit of the infant child of the man.

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A pregnant woman who was receiving prenatal treatment at a clinic came to the emergency room of a university hospital on March 29, 1997 complaining of leaking amniotic fluid. The residents and interns attended to her by taking her medical history and interviewing her. A licensed obstetrician saw the pregnant woman and conducted tests on at vaginal fluid but found negative results. They also performed a test to determine if the amniotic fluid was sufficient and they found the amount of amniotic fluid to be normal. A fetal heart monitor was used to check if the baby was distressed but the fetus was active and its heart beat was normal. She was discharged. She was also advised to rest and go to the clinic on March 31, 1997.

When the pregnant woman went back to the clinic as she was instructed, they confirmed the findings of the university hospital staff that there was no leak in her amniotic fluid. All her vital signs were normal as were her fetus’s heart tones. A New York Injury Lawyer said she was ordered to return for an ultrasound after two days so that she can present her employer with a medical certificate for her two-day absence from work. She was told to return for her scheduled follow-up visits after a week or on April 7, 1997.

But a day after her visit to the clinic, on April 1, 1997, the pregnant lady went back to the emergency room. The obstetrician on duty determined that the lady’s bag of water had already broken. She was admitted into the hospital and given antibiotics to forestall any infection. She was also given medications to prolong the pregnancy. At that time, the pregnant lady had no fever. She stayed in the hospital for two more days. On April 3, 1997, she gave birth. Her placenta and her bag of waters were tested and the tests revealed that the pregnant lady had a mild infection of the amniotic lining.

The baby had to be ventilated and was given antibiotics to forestall any sepsis. A Queens Personal Injury Lawyer said that after five days and no infection was noted, the antibiotics were stopped. When the baby’s skin turned yellowish, it was given phototherapy and the mild jaundice was resolved. One week after birth, the baby had difficulty breathing and its heart rate slowed. They started antibiotics again and it was determined that the baby was suffering from meningitis. The baby was discharged from the university hospital on May 28, 1997.

The baby was diagnosed to experience apnea (breathlessness while asleep). The child was also diagnosed to have an obstruction in the intestines and had to undergo surgery to correct the problem. Because of the meningitis, the baby experienced seizures within the first three months of birth but the seizures have not recurred. The child was screened for vision and hearing and found some abnormalities. They advised the mother to present the baby for outpatient follow-up.

The woman then sued for medical malpractice the university hospital and the doctors, interns and residents who treated her there for the two times she came to the emergency room. She also sued the obstetrician who helped deliver her baby and the pediatricians and residents and interns who took care of her baby in the neonatal intensive care unit. She claims that the doctors were guilty of medical malpractice for failing to timely and correctly diagnose that she had an infection in her amniotic sac lining. They also committed medical malpractice for failing to give her enough antibiotics to kill all the bacteria present in her amniotic fluid. She claims that the insufficient antibiotics that failed to kill the bacteria in her amniotic fluid was the direct cause of her baby’s contracting meningitis. She also sued for medical malpractice the pediatricians, residents and interns claiming that their negligence in caring for her baby caused him to develop brain damage and other neurological disabilities.

The residents and interns moved for a summary judgment asking dismissal of the medical malpractice case against them as they were just students at that time. They did not treat the pregnant lady apart from taking her medical history and merely executing the orders of the attending physicians. The plaintiff did not object to the motion so the motion was granted.
The obstetrician who examined her when she presented herself for the first time at the emergency room when she complained that her amniotic fluid was leaking also filed a motion for summary judgment asking that the case against them be dismissed because they did not deviate from accepted medical practice. The plaintiff did not oppose this motion. The Court found that there was no evidence of infection of any kind at the time that the lady first presented herself at the emergency room and so, the Court dismissed the case against them.

The obstetricians who delivered her baby also moved for a summary judgment asking for the summary dismissal of the case against them as they did not deviate from accepted medical practice. A Suffolk County Personal Injury Lawyer said the plaintiff vigorously opposed this motion claiming that the obstetricians failed to give her sufficient antibiotics when she came into the emergency room for the second time. She claims that this is the direct cause why the bacteria that caused her infection thrived and infected her baby as well, although her baby’s infection did not manifest until after a week from birth.

The Court ruled that the plaintiff has raised a question of material fact that must be tried by a jury. The obstetricians’ motion for summary dismissal was denied. The Court ordered that trial on this sole issue of material fact ensue in the lower court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A man commenced an action against the City of Utica, five of its police officers and its chief of police, to seek damages for injuries he had sustained a year earlier when he was still under the age of 21. In his complaint filed in the District Court, he claimed that the officers attacked him, wrongfully detained him, delayed medical treatment, and charged him with assorted violations of the Penal Law without cause. He settled his claim after having reached his 21st birthday.

Thereafter, the Department placed an encumbrance against the man’s settlement proceeds in accordance with the Social Services Law. A New York Injury Lawyer said the law permits a public welfare official to attach the personal injury recovery of a public assistance recipient in order to recover benefits paid on and after the date the injuries were sustained.

The man commenced a proceeding to annul the findings of the Department and to vacate the encumbrance it had placed against his personal injury proceeds. He claims that inasmuch as the action against the city arose prior to his reaching his legal age, the encumbrance could not be properly attach. The man, however, did not challenge the Department's ability to recover the medical expenses that it had incurred on his behalf. The Supreme Court ordered the man to reimburse the Department of the portion of his recovery that represented his medical and hospital expenses, but disallowed the remainder of the encumbrance. The Appellate Division affirmed, holding that the portion of the settlement that represented damages for the man’s personal injuries was not subject to the encumbrance. The Appellate Division stated that while the Department may have a claim for public assistance payments made after the man reached his legal age, it could not seek recovery by placing an encumbrance against the settlement proceeds.

A Manhattan Personal Injury Lawyer said the provisions of the Social Services Law permit public welfare officials to seek recovery of public assistance benefits. It allows officials to bring an action or proceeding against a recipient of public assistance who is discovered to have real or personal property and who received assistance and care during the preceding ten years. The official is entitled to recover up to the value of such property with the cost of assistance or care provided. The official's ability to proceed is limited when the recipient of the public assistance is a minor. No right of action shall arise against a person provided with assistance or care who is under twenty-one years of age unless the person possessed excess money and property taking into account his maintenance, education, medical care and any other factors applicable to his condition when the assistance or care was granted.

The mere fact that the man’s injury was sustained while he was still a minor does not insulate the proceeds of his personal injury settlement from attachment. The Department should not be barred from seeking recovery for four years of public assistance simply by virtue of the fact that a settlement was reached when the man was 25 had its origins in an incident that occurred when the man was still a minor. He was an adult when the public assistance payments at issue were made and such alone is conclusive. Although the Department has a claim for payments made after the man reached his legal age, the Department is not barred from attaching a portion of the man’s settlement proceeds. Since the man was an adult when the public assistance in question was granted, a right of action is lawful. As a result, the Department was free to proceed in order to recover the payments made to the man after he reached his legal age. Thus, the Department's encumbrance on the man’s settlement should be reinstated to the extent that it corresponds to the public assistance that was granted to him after he reached his 21st birthday.

The order as appealed from should be reversed with costs. The man’s application to vacate the Department’s encumbrance against the proceeds from his settlement of the personal injury action is denied.

Minor persons are more prone to be victims of unlawful arrest. A Suffolk County Personal Injury Lawyer said that with their age comes the inability to stay away from group squabbles and petty crimes but they get harmed anyway and a simple injury can lead to a partial or full body paralysis and even wrongful death.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The complainant asked for an order dismissing the affirmative defenses and counterclaim. The opponent also filed an action asking to void the complainant’s motion and demand to direct the action to follow the trial case of her car accident.

It started when the opponent pedestrian was injured in a three car accident. She retained the complainant in the legal action as her attorney. The complainant apparently retained a lawyer as his counsel and both attorneys completed the preliminary trial. During the pre-trial conference, the complainant received an offer of $25,000 and stated that it was the extent of the total insurance coverage applicable to the accident and the opponent’s injuries. After communicating the offer to the opponent, she terminates the complainant and retained new counsel, who now represents the opponent in the underlying personal injury action as well as the recent case she filed. The complainant presented a bill for legal services rendered to the opponent in the sum of $17,500 plus disbursements which is unpaid.

A New York Injury Lawyer said that after presenting the summons and complaint, the opponent moved to dismiss the complaint and direct the complainant to turn over the files as well as to fix the attorney’s bill with security interest. Subsequently, the court ordered the turnover of files and fixed a temporary security interest in favor of the complainant with 50% of the net attorney’s fees subject to his determination. Thereafter, the opponent moved for a protective order as to certain items in the complainant's demands with regard to the affirmative defenses and accordingly the motion was denied by the court.

The opponent's first affirmative defense states that the opponent has been compensated in an amount appropriate with his services. However, since the opponent admitted that she didn’t pay the complainant, the defense has no merit and was immediately dismissed.

The opponent's second affirmative defense states that the complainant has received or is entitled to receive full compensation for the services performed by him through the no fault insurance carrier insuring the vehicles. However, based on records, the complainant could not receive full or even part compensation by a no fault carrier for his fee for services rendered in a negligence case for personal injuries. The attorney's fees payable from no fault carriers are fixed after settlement trial with regard to uncertain medical expenses or loss of earnings. There has been no proof offered by the opponent of any such settlement trails; and even if there were payment of such no fault attorney's fees, the legal services charges are separate and apart from no fault fees. Consequently, the second affirmative defense has no merit and was also dismissed.

The opponent's third affirmative defense states that together with the complainant, she entered into a written agreement which sets the full and exclusive terms of the complainant’s compensation. There is a written compensation agreement annexed to the complainant’s motion papers which provides for a sliding scale payment to the complainant. The agreement asserts to set the terms of the complainant's compensation for services rendered. Since the contract of payment is not the sole standard of compensation, it may be taken into consideration in determining the fee for the service recovery of the complainant. Given that the defense asserts a breach of the contract and factual accusation of such breach of contract are set in the opponent's bill of particulars, the defense raises issues capable of trial and must await trial. The motion to dismiss the third affirmative defense was denied.

A Manhattan Personal Injury Lawyer said that the opponent's fourth affirmative defense states that complainant has breached his agreement with the opponent. The complainant contends that the opponent’s confirmation of the argument in her bill of particulars consists of vague generalities.

As to the counterclaim, the opponent alleges that the complainant is improperly retained as trial counsel without her consent and negligently prepared papers and conducted pretrial discovery as well as well as advised the opponent to settle for an amount less than the potential of the lawsuit. There are some specific factual allegations set in the bill of particulars. The opponent demands damages in the sum of one million dollars. The said allegation is sounding in legal malpractice. However, based on the record, a necessary element for legal malpractice action is damages. There can be no legal damages until the underlying case is resolved. Consequently, the motions to dismiss by the complainant by his attorney and his attorneys (on the counterclaim) are granted. The dismissal is not on the merits and is without bias to renewal of the legal malpractice, either by way of suit or counterclaim, after the termination of the underlying personal injury case, or the fixing of damages in any other manner.

The opponent argues that her underlying car accident case must be put on trial prior to the suit concerning the legal services rendered to her. To resolve the question of the priority of trial, the court will determine whether the complainant has a right to put on trial the suit for legal services rendered prior to and without awaiting the resolution of the underlying law suit.

The law with regard to priority of trial between an underlying unresolved law suit and a substituted attorney's suit for legal services rendered states that when a client terminated her attorney without any reason, the attorney is entitled to have his payment determined in a fixed dollar amount, presently payable based on the reasonable value of his services. A Suffolk County Personal Injury Lawyer the attorney's right to recovery is limited to a cause of action in the reasonable value of his services rendered up to the time of the termination.

Despite of the complainant’s desire for immediate action with regard the suit for the legal service rendered, the court is of the opinion that the proper process with the case would be to defer the trial until the conclusion of the underlying lawsuit either by trial or settlement. If not, for the reason that the cases that give the complainant the right to an immediate trial speak of the discharge of the attorney without cause. Second, that it would be obviously unfair, if not improper, for the court to defer the opponent's counterclaim for legal malpractice and yet permit the trial of the complainant's suit for legal services. And lastly, despite of the complainant's urging for an immediate trial for his services rendered on a payment to the service basis, the evaluation of such services in a personal injury suit clearly provide themselves to easier, more reliable and accurate evaluation after all the work has been completed and the disposition is established.

The court accordingly directs that the action is stayed pending the termination of the underlying personal injury suit. The opponent is given to leave and to move for modification of her answer to once again interpose the counterclaim for legal malpractice. The complainant’s temporary security interest of 50% of the net attorney's fee is to continue, pending the trial of the action. The attorney of the opponent is directed to notify all opponents and their insurance carriers in the underlying legal action of the temporary security interest, and the opponent shall notify them to place the complainant's name on any check issued in any disposition of the underlying personal injury suit.

Bystanders can be a part of dreadful accidents. It is harder for a victim to accept such fact, but a skilled lawyer can provide you with legal support and can make you realize reason to fight. Contact Stephen Bilkis and Associates today.

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

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

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

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

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

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

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

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

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

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

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

On July 20, 2001, an employee was operating a 1996 Honda motorcycle which was involved in a car accident with one of the accused parties, a delivery truck of the courier company at the intersection of New York State and Connors Road in the Town of Van Buren, County of Onondaga. The accused was the operator of the delivery vehicle in the course of his employment for the courier company. The motorcycle driver sustained severe personal injuries in the motor vehicle accident and required substantial health care and medical services thereafter.

Based on records, prior to the employee’s accident, a Corporation had issued a group contract for HMO medical care coverage to the man’s employer and he was at all relevant times an eligible member under the HMO contract. By the terms of the HMO contract, the Corporation provided coverage to the man for certain medically necessary hospitalization and health care services. The cost of the benefits provided to the man and paid for by the Corporation presently exceeds the sum of $100,000.
In July 30, 2001, the man commenced a civil action against the operator of the delivery truck and the courier company seeking to recover monetary damages for the injuries he sustained. There is no factual dispute that the man is not seeking and has not advanced a claim for the recovery of past or future medical expenses.
The HMO contract contains succession language that provides in the event that the insured suffer an injury or illness for which another party may be responsible, such as someone injuring the insured in an accident, and the HMO pay benefits as a result of that injury or illness, the HMO will be superseded and succeed to the right of recovery against the party responsible to the extent of benefits they have paid.

A New York Injury Lawyer said that on April 17, 2003, the Corporation commenced the action against the operator of the delivery vehicle and the courier company and advanced one cause of action, which alleged standing as representative of the man under the applicable HMO contract language and sought recovery of the cost of benefits paid to him on the ground that the accused parties’ negligence was the proximate cause of his personal injuries and the medical expenses he incurred. The accused parties commenced a third-party action against the Town where the accident happen, seeking contribution or remuneration. The Town has taken no position in reference to the issues presented by the motion and has not submitted any papers to the court relative to the motion.
The Corporation and the accused parties both have taken the position that there are no material issues of fact that would preclude the granting of conclusion without trial and that the accused parties’ summary judgment motion presents a pure issue of law for the court to determine. Neither side has advanced an argument that the motion is premature or must await the completion of discovery.

A Manhattan Personal Injury Lawyer said that the accused parties’ primary argument in support of the summary judgment motion is founded upon admissibility of collateral source of payment. he said evidentiary statute provides that in a personal injury action wherein the complainant seeks and recovers compensatory damages for medical expenses, the court must reduce the award for certain categories of damages, including the cost of medical care, where it is determined that the cost of such expense will, with reasonable certainty, be replaced or reimbursed by any collateral source. The statute provides a list of collateral sources which includes insurance such as that provided under the HMO contract involved.

The accused parties’ argue that the Corporation, as a representative, has no greater rights than that possessed by its insured employee. According to the accused parties, since the employee would have no right of recovery against the alleged wrongdoers, the Corporation could have no greater right against the wrongdoers and may not recover under a succession theory that would be barred to the employee. The accused parties’ also argue that the Corporation is subject to whatever defenses the alleged wrongdoers could assert against the employee.

A Suffolk County Personal Injury Lawyer said that the Corporation argues that the law does not revoke or apply to a health insurer's succession claim. ccording to the Corporation, the collateral source rule serves only to prevent a double recovery by an injury complainant and the real issue is whether the health insurer stands to obtain a double recovery through its succession claim, which does not apply to the case.

It appears to the court that no other court has confronted and decided a collateral source succession dispute under the same facts as presented. However, there are a number of cases which have addressed similar claims in differing realistic settings.

The case, however, involves an attempt by the insurer to directly enforce its succession rights against the alleged wrongdoer to recover amounts paid to the insured and, because of the manner in which the insured's injury action has been pleaded and prosecuted then, there is no possibility of the wrongdoer having to pay twice and there is no need to await settlement.
The accused parties provide the court with a letter from the Superintendent of Insurance to the Counsel for the Governor regarding the proposed amendments to the law and enacting a new section with more expansive collateral source provisions. The accused parties cite to specific language in the letter which provides that finally, the Insurance Counsel believe that reduction of recoveries by collateral sources would have some effect upon the succession rights of insurers, and the effective date provision which affects existing occurrences would, therefore, impair existing rights, raising legal questions.

In response, the Corporation submits a letter from the New York State Insurance Department which discusses the Department's approval of succession language in group accident and health contracts. The letter provides in pertinent part that the State Insurance Department’s position on succession provisions is based upon a determination that such a provision is appropriate in group contracts to eliminate duplicative payments.

Again, the focus and emphasis by those evaluating succession provisions and the law issues seem to be upon the necessity to put in place a monitoring scheme to prevent double recovery by the injured complainant insured and, to a lesser degree, the question of who should bear the cost of paying once for the injured complainant’s medical costs.

The court turns to the question of whether the application of the law as advanced by the accused parties would result in an undeserved windfall to the accused parties. Clearly, in the absence of the Corporation medical insurance coverage, which paid the insured complainant’s medical bills, the accused parties would be exposed to the potential liability for all of the costs in the insured complainant’s direct action against the accused. Obviously, the employee’s counsel made a strategic decision not to include a claim for the costs in the insured complainant’s personal damages action because of the prohibition against double recoveries embodied in the law.

However, in the absence of such insurance, assuming the insured complainant was successful in suing a claim for past and future medical expenses in the personal injury action without apportionment of liability to the insured complainant, the accused parties would be responsible for every dime of such costs. There can be no double recovery to the insured complainant.
At least one federal court has analyzed and applied the New York law to a similar claim by an accused that the law bars succession claims by insurers to recover the cost of benefits paid to insured parties resulting from the accused parties’ wrongful conduct. The accused parties argued that the collateral source rule prevented the insurer from recovering anything more than what the insured could have recovered from the accused party in a direct action.

The accused parties also argue that the procedural pathway chosen by the Corporation has the potential to result in inconsistent verdicts or multiple judgments against the accused parties for the same items of damage. The court finds little merit in the argument. Initially, there is only one claim for medical expenses being advanced against the accused parties. The employee is not advancing such claim in his personal damages action and there will be no verdict or judgment awarding medical expenses to the employee in the personal injury action. Secondly, to the extent that one action results in a finding of liability as against the accused before the other action is reduced to verdict or judgment, traditional principles of determination and permanent ruling, if applicable, will come into play to resolve or harmonize the two actions.
In conclusion, the court finds that the law is not a bar to the Corporation’s contractual succession action against the accused parties to the extent that such action alleges that the accused are the responsible parties and seeks to recover the cost of medical expenses paid by the Corporation on behalf of its insured employee. The accused parties’ motion to dispose the case without trial is denied in its entirety.

One of the most common scenarios in the road is an accident and it is the most unpleasant scene that no one wants to encounter. If someone in your family gets involved in a car accident, a skilled lawyer will be guiding your steps in pursuing your legal complaints. If you lose your job or you are not compensated after the accident, please call Stephen Bilkis and Associates.

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

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

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

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

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

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

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

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

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

You may be a student who tripped and fell at a sidewalk in your school. Whom can you sue? How can you word your complaint so that it specifically states the particular place and time when your injury was sustained? You need a lawyer to help you draft your complaint. At Stephen Bilkis & Associates, they have trained attorneys who can help you present your claims coherently. They can help build your case and present evidence in your behalf. They can argue for you and stand with you to see that you are compensated for your injuries. Call Stephen Bilkis & Associates and ask to meet with a lawyer who specializes in personal injury litigation as these.

A lady was walking outside a restaurant located at 1396 Third Avenue in Manhattan. The restaurant had a permit from the City of New York to set up café tables and chairs on the sidewalk. On the sidewalk there was a tree providing shade for the café tables. Sometime on March 21, 2008 as the lady was walking past the café, she stepped on a raised sidewalk flagstone and that caused her to trip and fall.

She sued the owner of the premises and the owner of the premises sued the tenant (the café) and the insurance company. After the deposition of the lady, the building manager and the café manager, the plaintiff filed a motion for a partial summary judgment against the building owner and seeks that the building owner be declared as liable under the Sidewalk Law of New York. The building owner filed a motion for summary judgment asking the court to dismiss the lady’s complaint against it. According to a New York Injury Lawyer, the insurance company asked the court for a summary judgment to dismiss the complaint of the building owner against it.

The Sidewalk Law of New York provides that the owner has the duty to maintain the sidewalk outside its premises in a reasonably safe condition and failing to do so, the building owner shall be liable for any injury. This duty to maintain the sidewalk in a reasonably safe condition cannot be delegated. The Court held that since the Sidewalk Law clearly puts the duty on the owner to maintain the sidewalk, and there is evidence that the building owner owns the property which abuts the sidewalk where the lady tripped and fell, the lady’s motion for partial summary judgment against the owner declaring him liable for her injury is granted.

A Manhattan Personal Injury Lawyer said that just as the Court declared that the building owner is liable for the injury sustained by the lady from the raised sidewalk flagstone outside the premises, the Court also declared that the building owner’s liability is not strict. Its liability will arise only if it is established by evidence that the building owner created the defect in the sidewalk or had constructive notice of the defect (the raised flagstone) but did not do anything to repair the defect. The Court also declared that the building owner can agree with the tenant of the premises to allocate the liability and even procure insurance for the benefit of the building owner and the tenant.

The building manager categorically testified during her testimony that she had never observed any raised flagstones around the premises or received complaints concerning any dangerous condition on the sidewalk. A Suffolk County Personal Injury Lawyer said she categorically stated that the café manager never informed her of any raised sidewalk flagstones and that she does not remember if any repairs were made on the sidewalk prior to the date that the lady tripped and fell on the sidewalk. During the same deposition, she also stated that she walked past the sidewalk on the way to her office in the higher floors of the building everyday for three years prior to the date of the lady’s accident.

But the testimony of the café manager totally contradicts the testimony of the building manager. He testified that in the spring of 2008, before he learned that a lady had tripped and fallen on the sidewalk, he painted the edge of the sidewalk yellow. He painted with similar yellow paint that area of the sidewalk that surrounded a tree to alert passersby and pedestrians of a possible tripping hazard. He testified that he had observed that the roots of the tree were causing some of the flagstones to be cracked and raised. He also testified that for fear that someone might get injured; he talked with the building manager herself and to clarify who was responsible for having the raised flagstone repaired. He testified further that the building manager gave him a printout of contact numbers of City offices which might be able to help him with the repair of the sidewalk.

The Court ruled that since there are discrepancies between the testimony of the café/restaurant manager and the building manager, these discrepancies raise issues of fact that must be tried by a court. The Court accordingly dismissed the motion for summary judgment filed by the building owner.

The lease contract entered into by and between building owner and the café/restaurant owner provided that they should both procure an insurance policy that will indemnify them for any claims for negligence that may be filed against them.

The insurance company moved for a summary dismissal of the complaint filed against it by the building owner and the café/restaurant owner. Because the insurance covered only bodily injuries sustained within the premises of the insured building. The insurance company reasoned that since the trip and fall occurred on the sidewalk and not in the building, it is relieved of its obligation to indemnify the building owner or the café.

The Court rejected this reasoning of the insurance company and it ruled that the sidewalk must be used to gain access and entry into the premises of the café. Without using the sidewalk, the patrons of the café will not be able to enter the café. The sidewalk then must be considered as part of the use of the premises of the café for the purpose of determining the liability of the building owner, the tenant and the insurance company.

The Court denied the building owner’s motion for summary judgment and his motion to dismiss the complaint. The insurance company’s motion to dismiss the complaint of the building owner against him is denied. All other issues of fact still remaining are remanded for trial.

Perhaps you have also tripped and fallen on a sidewalk and you are confused as to whom to sue for damages to compensate you for your injuries: know your rights and know your legal recourse. At Stephen Bilkis and Associates, they have ably trained lawyers who can listen to you and recommend the best course of action to secure compensation for your injuries.

The pre-preliminary hearing for five current and former priests and other church officials took place on March 14 in Philadelphia, learned a New York Injury Lawyer. While the hearing was supposed to have been a relatively simple matter, before the end of the hearing the judge was expressing her anger toward one of the defendants.

The hearing was the first hearing for the accused since they were all indicted by the grand jury. They each stand accused of sexually abusing children and endangering minors. The court heard arguments from prosecutors and defense attorneys, which lasted for about 75-minutes. While many of those arguments became heated at times, and left the judge exasperated, one particular incident led the presiding judge to address one of the defendants directly.

A Suffolk Personal Injury Lawyer was told that during the course of the grand jury hearing, one of the priests had approached the judge in tears because he could not afford an attorney. The judge then appointed an attorney for him. When he arrived at this hearing, he had paid for his own attorney to represent him. Upon learning of this, the judge required the defendant to rise to his feet and explain his actions. She further expressed to the former priest that he had lied to her. His attorney stated that his client paid for counsel by means of a loan obtained from his brother. He also stated that his client did not understand the question and had misspoken. The judge did not believe it. The priest in question stands accused of the rape of a 14-year old boy.

One of the arguments the defense attorneys are presenting steadfastly is that the authorities that filed the charges initially did not have the jurisdiction to do so, which indicates that the grand jury indictment should be dismissed. The alleged crimes reportedly committed in two other counties. Prosecutors responded by filing conspiracy charges against the priest.

This case is also the first time that charges have been filed against a ranking church official for his role in covering up the alleged crimes and by placing the priests in positions that would provide easy access to potential victims. The former archdiocese faces a felony endangerment charge.

Have you been injured due to no fault of your own regardless of where it occurred? Before you give up and sign anything that an insurance company’s representative has given you to sign, contact a Stephen Bilkis and Associates. Whether you have been injured in a car accident, a construction accident, or a trip and fall accident, will speak for you and preserve the rights that others would have you sign away.

Mark Zuckerberg, head of Facebook, has won yet another battle against his former classmates at Harvard who believe he stole the idea of the now-famous social-networking site from them.

The plaintiffs, twins featured in the movie about the ongoing conflict, “The Social Network”, are required to accept the settlement in cash and stock from Facebook, valued at $65 million, a federal appeals court ruled.

According to the twins, the deal should now be worth $160 million because of Facebook’s monumental success. They told a Suffolk County Personal Injury Lawyer that the deal was unfair because Facebook was not completely forthcoming with information as they negotiated the settlement.

The twins are very good negotiators and have a team of excellent attorneys at their disposal, noted a federal appeals judge. They tried to get more money, but now it’s time for them to turn the page. The decision of the court was unanimous.

“[The twins] are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace,” the judge wrote in his statement. "At some point, litigation must come to an end,” the judge continued. “That point has now been reached.”

Despite that, sources explained that the twins are still reviewing the decision and are consulting with their lawyers. They have not decided what their next step, if any, will be.

Some cases are certainly of higher profile than others, but that doesn’t make them more important than any other. To the people involved in the suit, their particular case is the most important in the world and a New York Injury Lawyer recognizes this. They will do all within their power to make sure their clients not only have their rights upheld, but that they get the compensation due to them. Fame, power, and the amount of money are irrelevant. What truly matters is if the client is given the solid legal protection and guidance that only a qualified professional can provide.

Continue reading "Mark Zuckerberg Does It Again" »

A car accident occured on a rainy night, resulting in the death of the victim. The woman who was behind the wheel, plead guilty to accident involving death or personal injury and was sentenced to one to five years in prison, the minimum mandatory sentence for a felony charge.

The defendant is eligible for the work release program offered at the prison where she is to serve. She also agreed to pay $500 to the scholarship fund set up in the victim’s name. The judge did point out that such a pledge was not legally binding.

The 17-year-old victim walked in front of the woman’s car and died because of injuries sustained at impact, according to a New York Injury Lawyer. The defendant was not impaired by either drugs or alcohol, but she ‘panicked’ after hitting the girl and kept driving. Her car was stopped less than three miles away where she admitted her involvement.

A Suffolk County Personal Injury Lawyer reveals that had the defendant stopped at the scene, she would not have been charged with a crime. The investigation ended up determining that the defendant was not the cause of the accident, but that the teen walked into the road herself.

The popular teenage high school student, who was active in lacrosse and field hockey, was out celebrating the school’s basketball championship with other students and had been drinking. The victim’s father said that the girl had been arguing with her boyfriend that night. The boy followed the young lady in his vehicle after she stormed out of his house on foot. He actually saw the hit and run.

An earlier charge was brought against the defendant stating that she was driving without a license, but that charge was eventually dropped. Apparently, when she moved from one state to another there was an administrative error following a paid traffic ticket.

The girl’s parents are trying to keep the memory of their daughter alive through scholarships and other means. The scholarship is to help student athletes and the Senior Class Trip Fund is to help students at her alma mater attend school functions.

“Going positive is a fight, but it’s the only way to go,” the victim’s father states. “She was the kind of kid when she walked into a room, she put a smile on your face.”

Continue reading "Driver Sentenced to Prison for Fleeing the Scene of a Car Accident" »

An NPYD precinct commander was savagely beaten by her ex-cop husband, suffering a broken bone and a hospital stay, but he managed to get escape time in prison by pleaded guilty to drastically reduced charges.

The ex-cop, 47, trailed his wife, a deputy inspector and commanding officer for a precinct in Bedford-Stuyvesant, to a home on Long Island, on March 21. He waited for her to emerge, and when she did, he confronted her and assaulted her there on the front lawn, police sources explained to a reporter. The attack broke several of the victim’s ribs.

Hearing the screams of the woman being attacked, a detective with the NYPD Joint Terrorism Task Force came to her assistance and the ex-cop fled. According to the ex-cop, upon being questioned later, his wife, 46, was having an affair with the detective who rescued her.

Before a judge, the ex-cop pleaded guilty to two misdemeanors, third-degree assault and trespassing. He also pleaded guilty to a violation, disorderly conduct. For these crimes, the Suffolk County judge presiding over the case ordered him to attend domestic violence classes and issued an order of protection for the ex-cop’s wife. The judge also gave the ex-cop three years of probation. After nearly a month, the precinct commander returned to work.

In some cases, legal system just doesn’t come through. The punishment may not be enough, or compensation may be required to pay for medical costs, time lost from work, or even pain and suffering.

Justice should be served in Manhattan as well as Staten Island and all should be done to make sure the perpetrator remembers the harm he or she has done, so it will never happen to anyone else.

Continue reading "Wife-beating Ex-Cop Escapes Jail Time" »

A Morgan Hill Police Sergeant told a reporter that a driver was seriously charged with a felony when the passenger in her car was injured in the car crash. The car got out of control and hit a tree when the passenger received the injuries.

The police reported that they went to the scene to investigate the accident. The media carried the story and it was learned that the young man was only 17 years old. The Police reported that the driver seemed to be intoxicated while driving.

The facts seemed to agree with the legal aspects of the situation and render this as an unfortunate incident for all who were involved. According to reports, the passenger in the vehicle became unconscious when the police arrived at the scene. It was apparent that he had visible signs of injuries to her face. A helicopter took the injured man to the hospital nearby and he was taken to the intensive care unit where he received treatment for this serious condition.

It seemed that the passenger received some head injuries as well and needed to be stabilized. Concerned relatives rushed to the hospital to be with their loved one. According to Police, the passenger may also have been intoxicated at the time that the crash took place. However, Police were unable to do a breathalyzer test on the passenger due to his injuries. The driver received injuries to her ankles and to her wrists and she, too was taken to the hospital after which she arrested on a DUI charge. Nassau and Suffolk counties are hard on these cases.

Continue reading "DUI crash cause critical situation" »