New York Personal Injury Lawyer Blog

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.

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.

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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.
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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.

At Stephen Bilkis & Associates if you need a New York Criminal Lawyer to help you. Our New York Dog Bite Lawyers may give you the best defense possible especially if your dog has bitten someone. If you are the victim of a vicious dog or other animal, our New York Dog Bite Attorneys can represent you in court. Whether you have been injured due to the negligence of another, or have been hurt in a car accident or construction accident, contact us for guidance.

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.

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 petitioner in this matter is Kenneth Daniel. The respondent is the Motor Vehicle Accident Indemnification Corporation.

Request

Kenneth Daniel requests that an action against MVAIC, the respondent, be allowed under the terms of article 52 of the Insurance Law.

Hearing

The petitioner qualifies as insured for coverage during the hit and run car accident which caused him bodily harm. MVAIC argued that he was not insured for two primary reasons. The first is that the accident was not reported within the span of a single day to the authorities, and the second was that he did not make a reasonable effort to identify the motorist who committed the hit and run, both of which are terms which need to be met under Insurance Law.

A case in the Supreme Court of Bronx County must be resolved in the issue of the hit and run before the qualifications of “reasonable efforts” are met, according to MVAIC.

Important Facts

A New York Injury Lawyer said the hit and run took place at 7:20 PM on July 24 of 1998. While riding a bicycle near East Tremont Avenue in the Bronx, the petitioner was hit by a car. Witnesses on the scene could not provide a consistent description of the vehicle. The only information provided conclusively by the victim was that the vehicle which struck him was white.

The court finds that the police were in fact notified within the requisite 24 hour period because they were called to the scene of the accident. This qualifies in all regards as adequate notification.

Relevant Laws

A Westchester Criminal Lawyer said that according to the relevant sections of the Insurance Law, for a valid action against MVAIC to proceed, a previous adverse judgment must occur on the basis that ownership of the vehicle in the hit and run could not be established. However, the victim also has the option to make MVAIC a party defendant rather than concluding the proceeding against the suspect first. This is especially the case when it appears that even after proceedings it seems unlikely that the driver of the vehicle could be positively identified.

There are problems in any case with proceeding with the case against the suspect in the accident and MVAIC separately. These include all the complications associated with running two concurrent cases on a similar issue along with increasing the case loads on the always overworked courts. A Queens Personal Injury Lawyer said there are many measures are in place to streamline the caseload facing the courts when possible. The initial petition in this matter states that further relief the court might choose as appropriate is also requested by the petitioner, which could certainly include consolidation of the cases.

Decision

In the end, the court renders several portions to the decision. These include:

1. The petitioner may file an action against MVAIC based on the relevant sections of the Insurance Law.
2. The motion will be passed to the Supreme Court to judge the possibility of consolidation of the cases, as this cannot be accomplished in the present situation at Civil Court.
3. The Civil Court must transfer any parts of the case that might be relevant to making a decision on consolidation to the Supreme Court so that the above decision may be rendered.
4. Approving the submission of any other documentation required by the Supreme Court to further its decision.
5. Ordering that all parties named need to adhere to any rules within the Supreme Court that apply to the matter at hand after the transfer is completed.

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

Case History

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

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

Defendant Argument

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

Plaintiff Argument

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

Case Discussion

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

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

Case Results

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

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

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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.

Stephen Bilkis & Associates has law offices throughout the greater metropolitan area of Manhattan. If you have been injured because premises liability, a car accident or work injury, you may contact our offices to set up a free consultation. We have expert lawyers in every field and will be able to help you determine the best course of action to take for your particular legal situation.

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.

It is very hard to accept when we lose someone important. However, it is harder for a family member especially for a child to lose a parent. Lawyers are skillful in handling cases and defending clients in need. If you suffered from malpractice of health care providers and obtain recurring injuries, inquire at Stephen Bilkis & Associates.

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

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

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

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

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

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

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

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

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

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

Was there a medical malpractice?

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

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

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

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

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

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

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

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

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

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

For inquiries on legal matters involving personal injury cases, like the medical malpractice action above-stated, consult with Stephen Bilkis & Associates.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court affirmed the reduced award of $125,000 for the pain and emotional distress.
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In 1967, at the age of 26, plaintiff began to undergo regular gynecological examinations in the office of defendant-doctor, an obstetrician-gynecologist. In April of 1969, plaintiff became pregnant for the first time. During the course of her pregnancy, she began to experience problems, including severe bleeding, which, according to defendant-doctor, indicated the possibility of a miscarriage. He thereupon prescribed medication which he said would help prevent a miscarriage. She took 100 pills a month for six months until, on 14 November 1969, she gave birth to a daughter. Following the birth, she continued her regular annual gynecological examinations and thereafter gave birth to two other daughters on 27 July 1973), and on 14 October 1974). During each of these pregnancies she was cared for and treated by defendant-doctor, who also delivered the children. After the third child’s birth, at plaintiff's request, defendant-doctor performed a tubal ligation so that she would bear no more children. Plaintiff thereafter continued her regular annual gynecological examinations with defendant-doctor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Was the complaint time-barred?

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

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

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

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

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

In view of the above, the court is constrained to dismiss the complaint. The ingestion of a pill is analogous to the injection of a chemical substance or the inhalation of dust as to render this case legally indistinguishable from those cited. The law as it now stands--restated by a majority of our state's highest court but 20 months ago--mandates that the court decides the case against the weight of profound sympathy; and the apparent injustice that the doctrine brings.
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On 16 June 2004, a motor vehicle accident occurred where serious injuries were allegedly sustained by plaintiffs. The accident allegedly happened when the vehicle owned and operated by the defendant struck the vehicle operated by one of the plaintiffs, the other plaintiffs riding as passengers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two of the eleven plaintiffs claimed damages for wrongful death.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A taxi driver was walking alone a sidewalk in Woodside, New York at 6:00 a.m. He was on the sidewalk outside 60-01 31st Avenue when he stepped on a raised and elevated sidewalk flag. This caused him to trip and fall. He fractured his right arm as a result of the trip and fall and he sued the owner of the premises as well as the two tenants of the premises who had shops abutting the sidewalk. The taxi driver’s wife joined the suit. She claimed damages for personal losses she sustained as a wife who lost the usual financial support from her husband that she was accustomed to, and for personal losses because she was unable to have normal conjugal relations with her husband during the time of his confinement due to his fractured right arm.

According to the New York Injury Lawyer, the owner of the premises and the taxi driver were deposed during discovery. The tenants of the premises did not depose the taxi driver. But then later both of the tenants filed separate motions for summary judgment against the owner of the premises and against the taxi driver and his wife.

The tenants alleged that as mere tenants they are not obligated by the law to maintain the premises. It is the owner of the premises who is obligated under the Administrative Code of New York who is responsible for injuries resulting from the negligent maintenance of sidewalks outside the property owned by them.

A New York City Personal Injury Lawyer said that the tenants also assert that they are mere lessees and there is no showing that they derived special use of the premises. There is no evidence in the record to show that they created the defect in the sidewalk which caused the taxi driver to trip and fall. There is no evidence to show that they made any repair work on the sidewalk which caused the defect. They insist that they are entitled under the law to be released as parties to this lawsuit.

The taxi driver opposed the motion for summary judgment asking that the case be dismissed against the tenants. He asserts that there is no evidence on the record that the defendants are only tenants. The tenants failed to attach a copy of their lease to their motion for summary judgment. They also did not attach a sworn affidavit of any person who had personal knowledge that tenants did not perform and repair work on the sidewalk which caused the defect.
The Supreme Court is then tasked to decide on whether or not the tenants are entitled to a summary judgment of dismissal of the case against them. The Court decided to deny the motion for summary judgment.

The Court noted that under the laws of procedure, the tenants had to show that they are entitled to a summary judgment. It is their burden to present preliminary evidence ( from the pleadings and documents identified during the deposition) that they cannot be held responsible for the negligence and that they did not create the defect as they never used the sidewalk or performed any repair work on it.

The Court noted that, as observed by the taxi driver, the tenants did forget to attach a copy of their lease agreement which would prove that they are mere tenants and not the owners of the premises and as such, they cannot held liable for the negligence. A Staten Island Personal Injury Lawyer said this inadvertence on the part of the counsel is fatal to their motion for summary judgment.

Also the Court noted that there is no affidavit attached to the tenants’ motion for summary judgment except the affidavit of the counsel for the tenants alleging that the tenants have not derived any special use from the sidewalk outside the premises nor have they performed any repair on the sidewalk which could have caused the defect.

The affidavit of the counsel for the tenants cannot be relied upon as admissible evidence to support a motion for summary judgment because the counsel for the tenants has no personal knowledge about any special use or repair work performed on the sidewalk. He is incompetent to swear to those facts because he has no personal knowledge of them. Only the tenants themselves or their employees and personnel can have personal knowledge of those facts.
The Court denied the tenants’ motion for summary judgment.

Perhaps you are a tenant of a building which abuts a sidewalk. Have you been sued for negligence like the tenant in this case? Did you know that as a mere tenant, you cannot be made liable for any negligence if you did not have special use of the sidewalk or if you did not create the defect in the sidewalk?

Being sued in court is often a stressful reality that you are unprepared for. Do not grope in the dark. You need to consult an attorney who can apprise you of your rights and obligations under the law as a tenant. At Stephen Bilkis & Associates, their legal team is well-trained to guide you in the intricacies and complexities of damage suits such as these and ensure that you can have your day in court. They can present evidence and argue your case to shift the liability to the owner as the law mandates and so mitigating your liability as a mere tenant. Call Stephen Bilkis & Associates today.

The Governor of the State of Alabama as well as the Alabama Attorney General are both reminding and urging all of the victims of the BP Deepwater Horizon oil spill to submit their claims to the federal court before the April 20 deadline, sources revealed to a New York Injury Lawyer. That is the deadline that the federal court in New Orleans has set for people to file claims against the rig’s owner, Transocean.

The Alabama Attorney General has been especially vocal about the apparent lack of cooperation with the BP claim processing that has taken place since the company began processing and disbursing claim payments, a Westchester Personal Injury Lawyer was told. This is in contrast to the claims that the processing center has made about recently reaching a milestone and having processed about half of the claims against BP. He recently commented that, “Quit dragging your feet and stalling the large majority of claims to a point where victims are so desperate that they settle for anything.

Alabama’s governor and attorney general have reportedly taken a larger role than the previous administration and have vowed to fight for the area since they believe it was harder hit when the oil spill washed ashore after the oilrig exploded.

When the Deepwater Horizon oilrig exploded and allowed untold millions of barrels of crude oil to flow into the Gulf of Mexico, no one could know what hazards would be experienced, nor how far the damage would go. While the oil spill was allegedly contained and the oil well itself was capped, hundreds, if not thousands of people continue to struggle with how to cope with the aftermath of this manmade disaster. Time has been too short to determine the long-term physical, psychological, and emotional affects that await its victims, just as the environmental damage may also not manifest itself for many years.

As the governments, oil executives, judges, and lawyers all make their arguments both for and against each other; the government of the State of Alabama is asking its citizens to beat the deadline for including their claims in the federal lawsuit. This seems to be the only way they will receive anything for their lives being untracked, and in many cases completely destroyed.

Whether you have been injured due to a premises liabilty issue, a defective product, or have suffered injury from a car accident, the law offices of Stephen Bilkis are here to assist you, provide you with real guidance to your problem, and a free consultation. Call us today and schedule a free consultation at any of our offices located in the New York area.

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A Massachusetts state trooper was struck by a vehicle at approximately 4:50 a.m. Sunday morning during a traffic stop on I-93, a New York Injury Lawyer has learned. The trooper was injured when a driver slammed into the trooper’s parked vehicle, which then slid into the trooper. The 40-year old man taken into custody and charged with “operating under the influence, operating to endanger, failure to move over for an emergency vehicle and a marked lanes violation,” according to a police spokesman.

Within minutes, emergency medical personnel arrived on the scene to assist the injured trooper. Once he had been stabilized, he was then taken to Boston Medical Center. He suffered from leg injuries which may have included a broken bone and was listed in stable condition.

This is not the first crash that has left a State Trooper injured due to a traffic accident. As recently as this past Wednesday, a 54-year old trooper was seriously injured by a vehicle that had crossed the median and struck his police cruiser head on. It is unknown at this time what charges were filed in that incident, or as to the condition of the officer.

State Police have further commented that this makes at least the 12th serious crash that has occurred in the last 15 months. In each of these, a trooper received injuries because of erratic driving, speeding, or suspected impaired driving.

According to a Westchester County Personal Injury Lawyer, many states, including Massachusetts, have enacted laws that are designed to protect police, firefighters, paramedics, tow truck drivers, and all roadside emergency and maintenance professionals that as part of their job function are required to work along the sides of the roads and highways. These laws are often called “Move Over Laws.” The Massachusetts move over law was enacted on March 22, 2009. Of course, laws can mean very little to those drivers who have chosen to ignore or blatantly violate them. Just one case in point, those drivers on the highways who choose to drink and drive are likely to place everyone in danger, and lack the cognizance to recognize the situation and move over. These drivers are some of the greatest risks to everyone.

If you have been injured due to the negligence of another, it is important to ensure that your rights are protected. Speak to qualified legal counsel for advice. You may be entitled to receive just compensation for your injuries, which can include reimbursement for medical expenses, pain and suffering, and loss of income.

Continue reading "Alleged Drunk Driver Injures State Trooper" »

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

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

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

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

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

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

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

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

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

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

Both members of a Maryland couple were charged with DWI, among other charges, after causing a three-car crash in Seaford, Delaware. The incident happened about 11:05 p.m. on U.S. 13, a state police spokesman told a New York Injury Lawyer.

The first driver, a 30-year-old man, was leading a second driver, a 31-year-old woman back to their home when the front car came to a sudden stop, which resulted in the 31-year-old woman slamming the rear of his car.

The impact pushed the front car into the rear of another car, driven by a 22-year-old woman. She was sent to a local hospital with with a possible back injury, then treated and released, the police spokesman reported.

After an investigation, it was determined that both the 31-year-old woman and the 30-year-old man had been driving under the influence of alcohol. Subsequently, they were charged with vehicular assault, driving under the influence of alcohol, and driving without a valid license.

The 30-year-old man was also charged with possession of more than alcohol – a small quantity of the drug MDMA, better known as Ecstacy, was found in his car, a Westchester County Personal Injury Lawyer discovered.

The 31-year-old woman was released upon posting $1,100 secured bail. Her partner, however, was sent to a correctional institution, since he did not pay his $1,600 in secured bail.

While others may classify injuries as major or minor, there are no minor injuries when they happen to you or a loved one. They take away precious time as you are treated and for many people time is money. And even minor injuries may cause lingering difficulties. The accident itself may cause mental or emotional trauma. Sometimes criminal law just isn’t enough or doesn’t have the means to handle such problems, which is where injury law comes into play.

Everyone deserves fair compensation when an accident occurs and someone else is at fault, because it’s impossible to tell what the consequences of such an event will be in the long term.

Continue reading "DWI Results in Three-Car Delaware Crash" »

A man from Marion who was working on a motorcycle in his garage was taken to the hospital for treatment, says a friend. The man was working on the motorcycle when there was an explosion in his garage. He is currently in the hospital and it is unknown when he will be released.

Firefighters were sent to his home somewhere between 9 pm and 10 pm that evening after someone called the police to report the explosion, stated the report.

The explosion did cause damage to the garage, which happens to luckily not be connected to the house that is on the property, reports the friend. The explosion also caused damage to the siding on one of the neighbor’s houses, although at this time it is not known exactly how much damage was caused or exactly how far the explosion reached. Fire investigators say that the explosion could possibly have reached houses and properties several houses down from the incident.

Investigators are currently looking into just what could have caused this explosion and are asking that anyone who may have been a witness or just thinks they might have some information to come forward right away, even if they think their info is meaningless.

Sometimes the seemingly insignificant piece of information can turn into a big break in a case and that is what police are hoping will happen in this case.

So far no foul play has been suspected, although investigators are asking around to see if the victim may have had any enemies who may have wanted to harm him in any way. So far, it has just been called an accident although that can change if any new info comes in.

Firefighters said the man was extremely lucky that his garage is not attached directly to his house; otherwise the injuries could have been much more catastrophic than they were. It is unknown at this time if anyone was in the house at the time of the explosion

Investigations are currently pending in this case. New York City and Westchester County would handle this the same way.

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A deadly auto accident in New York has prompted lawmakers to take a closer look at the United States tour bus industry.

The National Transportation Safety Board (NTSB) will “launch a broad investigation into the entire safety regime that governs the low-cost bus industry,” lawmakers said.
According to these legislators, they made the decision after a March 12 accident in which 15 people were killed.

“March’s bus crash was a tragedy for New York, but these passengers did not have to die in vain,” said Senator Charles Schumer, D-NY. “A full and comprehensive review of this industry and the safety regulations governing it will no doubt lead to greater safety standards for the thousands of passengers who use these buses every week.”

“By ensuring NTSB thoroughly reviews how this standard is regulated, we can keep passengers safe, while restoring customers’ confidence in this type of travel,” Representative Nydia Velazquez said.

The lawmakers claim that another NTSB review has already “led to major improvements” when it comes to airline safety. The senator has also requested a review of all drivers of low-cost tour buses to make sure none of them have previous safety violations or suspended licenses. He revealed that such an audit would have shown the driver involved in the March 12 car accident “shouldn’t have been behind the wheel.”

Andrew Cuomo, governor of New York, ordered an investigation into the crash. The driver had a commercial license – despite having a poor driving record and a criminal history of grand larceny and manslaughter in Staten Island and Westchester County.

The bus line itself is not new to accidents. They had a crash in 2009 that resulted in an injury, and another crash in New Jersey in 2010 that caused another injury. They have also been cited numerous times for “fatigued driving” between December 2009 and October 2010 in several states.

The driver claims he was attempting to swerve out of the way of a tractor-trailer that was going to clip the bus. The bus then fell onto its side and hit poles that cut through a large portion of the vehicle. The driver has not been charged, though his license was suspended.

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