New York Personal Injury Lawyer Blog

A married woman owned a property with a two-car garage. She decided to renovate the two-car garage by making it over into a guesthouse with a fireplace. She hired a general contractor to secure the necessary permits and licenses needed for the project; to hire and to supervise sub-contractors for each and every phase of the work; and to purchase insurance to shield the owner from suits in damages for any accidents that may occur during the renovation at the worksite.

The general contractor hired a company that constructs and installs drywall. It also hired a rock supplier to provide and install sheet rock as flooring. A man was hired by the rock supplier to deliver 16-foot sheet rock. A New York Injury Lawyer said he drove the truck on which the sheet rock was delivered. He also operated the boom that lifted the sheet rock from the truck bed to the forklift. A foreman from the general contractor told him to just bring the sheet rock into the garage and rest them on the long wall. The man and his helper took one sheet rock and carried it between the two of them. They entered the garage. When they got to the room where they were supposed to pile the sheet rock, the man’s right foot slipped into a hole on the cement floor of the worksite that measured about sixteen inches in diameter. There was a pipe that protruded from the hole and the man tripped on this and fell. The man could not see where he was going as he and his helper carried the sheet rock in between them. His slip and fall made him land on the sheet rock which fell and broke.

The man sustained serious personal injury and sued the owner of the premises (premises liability), her husband, the general contractor, the drywall installer, and the rock supplier for common law negligence and for negligence under the labor code to compensate him for the damages he sustained as a result of his personal injury.

All the defendants moved for summary judgment asking for the dismissal of the complaint of the sheet rock delivery man. The only question before the Court is whether or not the defendants are entitled to a summary judgment of dismissal.

The owner of the premises submitted proof that she personally and solely owned the premises. She hired a general contractor to oversee in her behalf the construction and renovation. A Bronx Personal Injury Lawyer said that she often visited the premises but did not exercise any supervision of the construction work. She did not give instructions as to the performance of the construction work. She merely visited to see how the work was progressing.

The husband of the owner of the premises submitted proof that the premises are not conjugally or jointly owned by him and his wife; he submitted proof that only his wife owned the premises. He also submitted proof that he has not visited the premises and has not in any way supervised the work at the construction site.

The dry wall company submitted proof that on the day of the accident, it was not yet working at the worksite. The phase of the work that involved the installation of drywall had not yet begun and so it did not have any employees or equipment at the worksite. It had not yet worked at the worksite.

The rock supplier also disclaimed any responsibility for the slip and fall accident of the delivery man. Although the sheet rock was delivered at the worksite, the rock supplier had yet to begin work at the construction site. It had not yet done any work that could have created or caused the slipping and tripping hazard claimed by the deliveryman.

The general contractor denies any liability by stating that its job was limited to hiring sub-contractor to do the different phases of the construction work. A Brooklyn Personal Injury Lawyer said it hired architects, engineers and interior designers; it secured all the necessary licenses and permits for the construction work. Also it denies that it can be held liable for negligence under the Labor Code as it is not the employer of the deliveryman.
The only question before the Court is whether or not the complaint should be dismissed.

The Court ruled in favor of dismissal of the causes of action against the owner or the premises who never at any time exercised supervision or control of the construction project. The cause of action against the husband of the owner of the premises is also entitled to a dismissal of the cause of action against him as he is not the owner and has no relationship of supervision or control over the construction project.

The Court opined that liability for causes of action based on common law negligence and for violations of the Labor Code is limited to those who exercised control or supervision over the deliveryman; and to those who had actual or constructive notice of the existence of an unsafe condition that has caused the accident.

Clearly, none of the people and companies sued for damages under common law or the labor code exercised supervision or control over the deliveryman at the time that he delivered the sheet rock. There is no preliminary proof adduced in any of the causes of action that any of the parties here had actual or constructive notice that a dangerous condition existed that caused the deliveryman to slip and fall.

The complaint was dismissed.

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The plaintiff is the case is Marcia Spalma. The defendants in the case are the Lawrence Towers Apartments, LLC, and AMA, Inc.

About the Case

The defendants/movants in the case, Lawrence Towers Apartments LLC and AMA, Inc., move for a summary judgment to dismiss the complaint made against them by the plaintiff. Alternatively, a Manhattan Personal Injury Lawyer said the defendants/movants seek the case’s dismissal because allegedly the plaintiff released the defendants from liability from the personal injuries that she sustained. Additionally, the defendants/movants seek the case to be dismissed because the injuries obtained by the plaintiff were not caused by a toxic substance or mold. The defendants/movants seek a hearing based on the case of Frye versus the United States in order to contest the scientific basis of the cause of her alleged injuries.

Plaintiff’s Argument

On the third of April in 2007, the plaintiff filed a complaint and summons against the defendants, Lawrence Towers Apartments LLC and AMA, Inc. The defendants are the owners and managers of a building that is located on Norstrand Avenue. In the month of April during the year 2003 the plaintiff moved into the building located on Norstrand Avenue. She first resided in apartment 211 of the building. Later in the month the plaintiff moved from apartment 211 into apartment 109. While living in apartment 109, the plaintiff was exposed to toxic substances (premises liability) and mold that resulted in her becoming ill. The bill of particulars stating her injuries includes obstructive airway disease, chronic obstructive disease, and bronchial asthma. In addition, she suffered from coughing, aggravated psoriasis, difficulty breathing, mental anguish, and anxiety.

Defendant’s Argument

A New York Injury Lawyer said that the defendants offer several motion papers in regard to the case. These include an affidavit from the manager of the property in question, attorney’s affirmation; an affirmation from the doctor that treated the plaintiff and exhibits labeled A through H. Exhibit A is the summons and complaint issued by the plaintiff. Exhibit B is the verified answer provided by the defendant. Exhibit C is the document from the instant case that was assigned by the King’s County Clerk’s office. Exhibit D is a copy of the release that is signed by the plaintiff and dated May 31st, 2006. Exhibit E is excerpts from an examination given to the plaintiff before the trial. Exhibit F is the copy of the plaintiff’s bill of particulars before litigation. Exhibit H is a copy of the sale deed of the premise.

Located throughout the city of New York, Stephen Bilkis & Associates offer legal representation and advice for whatever type of legal situation that you may find yourself in. For cases where you have been injured while on someone else’s property or you are injured due to someone’s negligence, we can advise you to the best course of action. Call our offices at any time to set up a free consultation.

Case Results

In this particular case for a summary judgment to be granted the defendant must prove prima facie to the fact that the injuries sustained by the plaintiff were not caused by the mold in the apartment.

The defendants use a statement made by Dr. Young to prove prima facie in the case. An NY Personal Injury Lawyer said the doctor testifies to the fact that the plaintiff had been seen in the emergency room for hypertension, uncontrolled diabetes, and obstructive pulmonary disease. These admissions occurred before she moved into the apartment. Additionally, the plaintiff has been tested and shown no signs of an allergy to mold. For this reason, the doctor states that the symptoms that the plaintiff had were not caused by the mold in the apartment.

As a result, the court rules in favor of the defendant and grants a summary motion that dismisses the case.

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.

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

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

Court Memorandum

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

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

Original Case

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

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

Current Case

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

Case Outcome

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

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

If you find yourself in a legal situation, Stephen Bilkis & Associates is here to help you determine the type of legal action that you should consider. Our teams of lawyers are experts in a variety of fields and will be able to work with you no matter what type of circumstance that you may be in. Our offices are conveniently located throughout the NY metropolitan area. You may call us for a free consultation.

The accused persons brought a motion seeking an order forcing a non-party witness to appear and give her further testimony after the witness was previously deposed but was directed by the counsel not to answer. The accused persons also seek an order appointing a Judicial Hearing Officer to supervise such follow-up deposition. Lastly, the accused persons seek an order imposing costs and sanctions on the complainants’ counsel in the form of payment to the court for the expense for the Judicial Hearing Officer for the supervision of the said further deposition based upon the alleged insignificant conduct of the complainants’ counsel at the earlier deposition of the non-party witness. They also move for an order relieving them from complying with the complainant’s notice for physical examination.

A New York Injury Lawyer said the action is for the personal injuries allegedly sustained by the complainant as a result of the claimed exposure to lead-based paint at the premises owned by the accused persons. The non-party witness is the complainant’s mother and she has commenced the action in her representative capacity as parent and natural guardian of an infant. The other complainants are also the children of the non-party witness and they all have reached the legal age.

In the Bills of Particulars verified by the complainants’ counsel, the children allege multiple neurological, cognitive functions, neuro-behavioral injuries, developmental and psychological injuries including neurological damage, brain damage and Attention Deficit Hyperactive Disorder (ADHD) as a result of exposure to lead while residing at the accused persons’ premises.

Significantly, the complaint alleges, according to a NYC Personal Injury Lawyer that lead paint exposure during three different time periods at three different residential leasehold premises. The accused were owners of premises where the complainants resided for two years. The allegations of injury advanced by the mother of the children on behalf of the infant are verbatim identical to those of the infant’s older siblings.

The non-party witness was first deposed on for two consecutive days. Upon the commencement of her deposition, the counsel for all parties specified, as is the custom and practice in the district, that all objections except those as to form were reserved until the time of trial and that the deposition would be held in accordance to the provisions of the Civil Practice Law and Rules. At the beginning of the deposition, the complainants’ counsel made certain pronouncements and imposed significant unilateral limitations on the scope of the questioning he would permit the non-party witness to answer. Almost immediately, a NY Personal Injury Lawyer said the counsel undertook a course of conduct at the deposition whereby he restricted the witness from answering questions, made demands for production of records, supporting the questioning counsel's good faith and otherwise engaged in conduct that severely limited, unfairly and improperly obstructed the accused persons’ ability to conduct the deposition.

As a result, the accused brought the motion and at the direction of the court. The issues and subject areas where the accused persons seek a further deposition have been narrowed and clarified by the parties.

The accused persons have made a sufficient showing of the materiality and relevance of the subject matter about which they seek to further depose the infant complainants’ mother in the lead paint injury action. The accused have submitted competent expert opinion supported by authoritative treatises and studies which demonstrate a sufficient scientific basis for the accused to pursue the areas of deposition questioning at issue.

The court has undertaken an extensive review and study of the statutes, decisional law and exhibits submitted by the complainants’ counsel in opposition to what the counsel characterizes as simple and settled legal issues. The court, however, finds that the legal, scientific and medical bodies of knowledge involved in lead paint litigation and discovery present complex issues for the court's resolution.

The conduct of the complainants’ counsel at the prior deposition of the mother of the infant was obstructive and unprofessional which in turn resulted in an improper frustration of the accused person’s attempts to conduct discovery of information material and necessary to the defense of the injury and damage claims embraced within the complainants’ pleadings. Since the complainants have failed to provide the accused with the type of records required, the accused are relieved at the juncture from compliance with the complainants’ notice.

The court entitles parties to full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. What is material and necessary is left to the sound discretion of the lower courts and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.

The Court of Appeals clarified the law in the area of discovery in lead paint injury actions. The court emphasized that discovery determinations are discretionary. Each request must be evaluated on a case by case basis with due regard for the strong policy supporting open disclosure.

It is significant to the analysis that the accused are not seeking at the juncture the production of any of the mother’s medical, educational, psychological or social services records. The discovery presently at issue relates solely to her deposition questioning. The witness was directed by her counsel not the answer her past history of any head trauma, striking or choking of one or more of the complainants, the factual history as it relates to the development and continued existence of asthma, the factual history of a documented incident of possible carbon monoxide poisoning, the factual history of a documented incident of a past exposure of the complainants to chemicals involved in photography, factors related to the development and cause of Attention Deficit Hyperactivity Disorder (ADHD) identified by the complainants in their Bills of Particulars as having been caused by the alleged lead poisoning at accused persons’ premises, the identification and factual history of the witness as learning disabled during her public school education and the factual information relating to the witness's participation in social services programs and in particular, rental assistance programs at the premises where the alleged lead paint exposure occurred.

Initially, the primary focus of the issues before the court deal with the nature and scope of the injuries claimed by complainants and the accused persons’ attempts to conduct discovery in furtherance of defending or minimizing these damage issues. Causation, within the negligence analysis, is not the predominate issue at hand. Causation, in the sense of which of complainants' claimed injuries and disabilities were proximately caused by the lead paint exposure, is the central focus at this juncture.

The court is mindful that it is well established that lead-based paint exposure presents a serious potential health hazard to children. The court is also mindful that lead poisoning itself is an actionable injury. However, the observation that lead poisoning is an actionable injury in itself does not give rise to the grand logical and evidentiary leap that every developmental, behavioral or neuropsychological problem experienced by a complainant has been proximately caused by a prior lead paint exposure.

As regards to the choking, depending upon the nature and extent of the choking, the fact that a child was choked could cause a deprivation of oxygen to the brain which in turn would be relevant as to the potential cause of some of the injuries claimed by the complainants in the instant litigation. Accordingly, to the extent that the complainants’ counsel directed the witness not to answer defense counsel's questions concerning the striking or choking of one or more of the children, the objection was palpably improper and inappropriate.

The defense counsel has submitted a hospital emergency room record reflecting that the son was brought to the hospital by his mother for headache and nausea with a complaint of possible carbon monoxide poisoning due to riding in a car with hole in the muffler.

The accused persons’ expert has opined that carbon monoxide poisoning is well known to cause brain injury with variable associated neuropsychological deficits depending on the level of carbon monoxide exposure and individual differences. Additionally, based upon articles from the affidavit and described as authoritative, the doctor also opined that mild head injury, concussion or a significant blow to the head may result in or produce subtle but significant changes that can affect school performance, or manifest problems such as specific learning difficulties and attention and memory problems that become apparent in the school environment.

The court is mindful of, and has considered, the concern of unfettered litigation on collateral issues. Relevant evidence on the issue of the medical causation of the thirty-four different neurodevelopmental injuries alleged by each complainant is central to the resolution of the action. Accordingly, the discovery at issue herein is not collateral to the issues raised by the complainants’ pleadings. Such discovery may make the case more complex than the complainants might prefer is of no impact. Under the circumstances, a factual scientifically based exploration of possible causes of the alleged injuries can hardly be considered collateral to the issues at hand.

The court finds that it was not defense counsels' questions that were improper, but rather the complainants’ counsel's instructions to the witness not to answer and his otherwise obstructive and excessive interference which was improper.

Complainants' counsel is to pay all cost associated with the conduct of the further deposition of Susan Adams including the cost of the stenographer.

Additionally, the court orders that the deposition transcript of Susan Adams produced as a result of the subsequent examination before trial ordered herein shall not be used, published or disseminated for any purpose other than this litigation, subject to further order of this court. At the completion of this action, accused persons’ counsel shall return all copies of said transcript to complainants' counsel. The transcript shall only be used for purposes of this litigation inclusive of trial preparation, including use by such witnesses, consultants and experts as may be retained or utilized by the parties and at the trial of this action pursuant to the provisions of the CPLR.

The accused also bring a motion for Exchange of Medical Reports in Personal Injury and Wrongful Death Actions seeking an order vacating the complainants’ Notice for Physical Examination of all the complainants. The accused also seek an order directing the complainants to produce medical reports of any medical service provider or expert witness detailing a diagnosis of any injuries sustained by the complainants as a result of the claim of negligence made in the poisoning lead paint injury action.

The court finds either of these approaches to be fundamentally unfair and contrary to the spirit and intent of the medical report disclosure rules. The complainants also allege irreversible brain damage. There is no record of any qualified medical provider having examined, tested, treated or diagnosed these complainants for brain damage. The record unequivocally demonstrates that the complainants have failed to satisfy the requirements the law and the accused persons’ obligation to conduct the examination has not ripened.

The court finds that it would be manifestly unfair to require the accused to conduct examinations of the complainants based upon this record and the total absence of any records demonstrating the treatment or diagnosis of the complainants by any qualified provider for the injuries verified by complainants' counsel in the Bills of Particulars.

All counsel are directed to appear at chambers for the purpose of scheduling the deposition of the witness and conferring and issuing a scheduling order for the completion of all discovery and the filing of the Trial Term Note of Issue.

Children should be protected and safeguarded from any form of harm but other people take this responsibility for granted. If you have a premises liability claim, or have been injured because of the negligence of another, speak to Stephen Bilkis and Associates for sound advice and a free consultation.

Asbestos product liability related, personal injury and wrongful death actions have been filed. The issue is whether the court should grant approval to the settlement of a wrongful death claim even if there has been no appointment of a personal representative.

Each of the three individuals, who are alleged to have sustained personal injuries as the result of exposure to asbestos products manufactured and/or distributed by the defendants, are now deceased. The complaint contains causes of action seeking money damages as the result of pain and suffering allegedly incurred by each one of them prior to their deaths. A cause of action for personal injury is not lost because of the death of the injured party, and may be commenced and/or maintained by the personal representative. In the event the injury causes death, damages are limited to those accruing before death, except for reasonable funeral expenses, and become assets of the estate.

Each of the named plaintiffs is a surviving spouse, and has made an individual claim for loss of consortium, which, of course, would be dependent upon the respective personal injury claims. In addition, according to a Brooklyn Personal Injury Lawyer, each plaintiff is designated, as the "Personal Representative" of the respective estates, which representation is repeated in the body of the complaint. In their respective, purported capacities as personal representatives, plaintiffs have asserted not only causes of action for personal injuries incurred by their spouses prior to death, but also causes of action for wrongful death. A "personal representative" is defined as "a person who has received letters to administer the estate of a decedent"
Unlike a claim for personal injuries, for which any recovery, by settlement or verdict, is payable and belongs to the estate, a wrongful death action is brought on behalf of the decedent's distributees, who have suffered pecuniary damages as the result of death wrongfully caused by a defendant. A wrongful death cause of action is created solely by statute. The provision, which authorizes maintaining such an action, reads as follows: "The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death." This section further provides that the wrongful death action must be commenced within two years after the decedent's death, and in the event that an executor, appointed under a will, refuses to bring such a claim, "the distributees are entitled to have an administrator appointed to prosecute the action for their benefit."

Wrongful death claims are one of the few types of civil lawsuits, in the State of New York, that require court approval for resolution by settlement.

Although Supreme Court may refer a case to the Surrogate's Court for the purpose of administering the proceeds of an approved wrongful death settlement, the authority and responsibility for approval is conferred solely upon Supreme Court, to "resolve the fairness and reasonableness of the settlement, including the amount to be paid, the manner in which the payment obligation is amortized and the parties' arrangements for payment of costs and attorneys' fees".

In asbestos related personal injury and wrongful death actions, it is not uncommon for the claims to be resolved by settlement on the eve of trial. This, in most instances, does not allow sufficient time for plaintiff's counsel to make formal application for approval of the wrongful death claim. Accordingly, the CMO for the Seventh Judicial District attempts to accommodate this situation by making provision for a preliminary approval, based upon a statement from plaintiff's counsel "certifying that the personal representative has consented to the compromise," setting forth the amounts contributed by the respective defendants and stating the reasons for compromise of the claims. A Bronx Personal Injury Lawyer said if preliminary approval is granted by the court, the case is marked "Off" of the trial calendar, and a plaintiff is then permitted to submit formal application for approval of the wrongful death action within a period of 60 days, thereafter.
Days before the scheduled trial date, the court received a letter from plaintiffs' counsel, dated 18 May 2004, whereby preliminary approval was sought for settlements of wrongful death claims. The letter indicated that one of the claimants(1st claimant) had died at the age of 81 from thyroid cancer, which, according to plaintiff's expert, was unrelated to asbestos exposure, and further stated that there was "no viable wrongful death claim." The court was also provided with a copy of the death certificate, and letters testamentary, which revealed that the claimant had died prior to the commencement of the action on 14 July 2001, and that no personal representative had been appointed until 1 March 2004. The letter further stated that the other claimant(2nd claimant), who had an extensive smoking history, died of smoking related lung cancer, and that plaintiff's expert was unable to find any "definitive" asbestos related disease. Therefore, according to counsel, causation would have been "almost impossible" to establish at trial. The letter also disclosed, for the first time, that the other claimant had never been granted letters testamentary, and that there were two children, from a prior marriage, who, in addition to herself, would be distributees. Efforts had been made by the estate attorney to secure consents to the appointment of the other claimant’s wife as a personal representative but the children had not responded to the telephone messages. Consequently, the attorney intended to attempt contact with the children one more time and if unsuccessful, to proceed by way of citation.

A New York Injury Lawyer said that on 19 May 2004, a letter was sent to plaintiffs' counsel, with a copy to defendants' counsel, which stated that the court was unable to grant preapproval to the proposed settlements in the matter of the 1st claimant, and suggested that, counsel consider a motion to discontinue the wrongful death cause of action. It should be noted that the 2nd claimant’s wife has been substituted as a plaintiff by order, dated 2 April 2004, and there had been no previous motion to dismiss based upon lack of capacity to bring the lawsuit. In addition, the amount of settlement was relatively small, and unlike the 2nd claimant’s case, counsel was unequivocal in stating that plaintiff could not establish causation. Absent objection on behalf of a defendant, the entire settlement could then be allocated to the personal injury and loss of consortium claims, and would not require approval of the court. A motion for discontinuance of the wrongful death claim in the 1st claimant’s matter was made returnable on May 21, 2004, which was also the scheduled trial date. However, plaintiff's counsel elected not to proceed by order to show cause, but rather, upon one day's notice of motion and without stating the basis for the application.

In the present case, the defendants, who have entered into settlement agreements, have not made motions to dismiss either the personal injury or wrongful death causes of action. Although it is not apparent whether any of these defendants had previously been aware of the lack of capacity of each plaintiff to bring these actions as a "personal representative," a motion to dismiss upon this ground, should have been made prior to the service of the answer, or alternatively, asserted therein. In regard to the wrongful death claims, the appointment of a personal representative is an essential element, and summary judgment, which does not contain any similar time constraints, may be an appropriate remedy. Arguably, one of the claimant’s wife, having been appointed a personal representative following commencement of the action and substituted as plaintiff, may possess authority to make a motion to dismiss the wrongful death claim. Again, it should be emphasized that the wife’s capacity to commence the lawsuit has not been challenged by a motion for dismissal of the complaint.

On the issue whether the court should grant approval of a settlement in a wrongful death action, which lacked a duly qualified personal representative both at the time of commencement and at the time of application for such approval, the plaintiff not only lacked capacity to commence the personal injury and wrongful death causes of action, but in regard to the latter, the lack of a personal representative renders the claim further defective because such appointment is an essential element and condition precedent to the claim itself. Thus, by making the application for approval, counsel, in effect, is asking that the court's imprimatur be placed upon the settlement of a defective claim. In any event, there has been no substitution of a personal representative, and the court lacks jurisdiction to rule upon any motion. Furthermore, from the perspective of plaintiffs' counsel, there is no legal entity who could be represented as a client.
Conversely, defendants, who receive releases in exchange for payment of monies, would not be protected from additional, future claims. Based upon all these considerations, there should be a denial of the application for settlement of the wrongful death action, as otherwise authorized by the laws.

As a result, the applications for approval of settlements of the wrongful death claims in the both cases are denied, and the motion to discontinue the wrongful death claim in the 1st claimant’s case is denied, without prejudice.

Legal procedures can be a lot confusing to individuals with little knowledge of the law or no knowledge at all. Much more if you find yourself in pain for injuries that was brought upon you for causes attributable to another. Let us help you in these trying times. Stephen Bilkis & Associates are proud to offer free legal advice for your problems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court dismissed the complaint of the county against the insurance companies.
You need the assistance of a New York City Personal Injury Lawyer when filing a complaint for personal injury caused by the discharge of pollutants in the soil, water or air, or other premises liability issues. The legal services of an attorney are indispensable not only in presenting evidence but also in making sure that the person or corporation that caused the pollution has sufficient funds and property to pay damages. Contact Stephen Bilkis and Associates today for a free consultation.

An insurance litigation, class actions, arose which revolved around the issue on the coverage of insurance for the contractors and sub-contractors of a complex where damages resulted.

It was alleged – that, on, about and between February 10, 2003 and continuing to and through November 2007, certain Plaintiffs and all members of the Personal Injury Subclass sustained serious and permanent injuries as a result of breathing, inhaling, being subjected to, and living in an environment infested with mildew, mold, bacteria and other contaminants; that, at all relevant times, the defendant, its agents, servants, representatives and/or employees, constructed and built the Complex; that, at all relevant times, plaintiffswere tenants of the defendant; that, at all relevant times, the Complex had significant water intrusion, water damage and extensive mold infestation.

A New York Injury Lawyer said that individual and class actions were filed by tenants of the complex, alleging personal injury and property damage related to pervasive water leaks and exposure to mold and other bacteria present throughout the complex. Because of this, other actions arose seeking, among other things, damages, indemnification for any monies that will be paid or has been paid to tenants, because of the ubiquitous water intrusion issues and pervasion of mold growth; thereafter, an action for insurance coverage.

Various insurance policies contain an exclusion for damages as to which the insured has liability only because of an indemnification agreement or similar assumption of premises liability. This insurance does not apply to bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. However, this exclusion does not apply if there is another independent source of liability for such damages. These policies thus contain additional language indicating that this exclusion does not apply to liability "that the insured would have in the absence of the contract agreement." The present action involves claims for both, contractual and common law indemnification in connection with the Tenant Actions. Because common law indemnification is liability that the general contractor "would have in the absence of the contract agreement" for contractual indemnity, there is a reasonable possibility of coverage for those indemnification claims.
One of the contentions was that the policies expressly and unambiguously exclude purely contractual damages. The Court reasoned rejected such claim. Nothing in the coverage terms of the policy even implies a distinction between liability acquired by contract or in tort." Indeed, the plain meaning of the provision is to exclude from coverage the insured's voluntary assumption of another's liability, such as by an indemnification agreement. It is axiomatic that contractual damages occur only upon breach of contract, and therefore there is no liability for such damages upon the signing of a contract, before they occur.

Various insurers argue that their policies exclude purely contractual damages from coverage, because the requirement of an "occurrence" is not satisfied. This argument is essentially an alternative manifestation of the work/product exclusion in many general commercial liability insurance policies, and the language should not be read to broaden that exclusion beyond its plain meaning.

Insurers point to language in their policies that indicates that a covered "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

Here, the [underlying] complaint does not allege an "occurrence" resulting in "property damage" as contemplated by the comprehensive general liability policy... The asserted claims arise out of a contract dispute between the insured, a general contractor, and the property owner. [The contractor's] policy, however, does not insure against faulty workmanship in the work product itself but rather faulty workmanship in the work product which creates a legal liability by causing bodily injury or property damage to something other than the work product. The Court then reasoned that the claimant had only alleged economic damages, such as repair and reconstruction costs and diminution in property value, and that such allegations do not involve an accident or continuous exposure to a harmful condition, such as would represent an "occurrence." A Nassau County Personal Injury Lawyer said because damage only to the work or product itself was alleged, stand-alone allegations of negligent installation or supervision (which, it is worth noting, would collapse into contractual or warranty causes of action under the economic loss doctrine), did not transform the nature of the exclusively contractual or warranty claims.

Subsequent decisions have adopted this holding and have more broadly concluded in dicta that general commercial liability policies, as a rule, provide coverage only for damages arising in tort and exclude purely contractual or warranty damages. However, because each insurance policy is an agreement between the parties, it must be interpreted in accordance with the language of that policy.

To the court's knowledge, there are no contentions for the tort injury limitation imposed on "occurrence," and who do not also have a work/product (or "your work" or "damage to property" – defective product) exclusion. Turning to the work/product ("your work" or "damage to property") and premises hazard ("damage to property") exclusions, several of the insurers contend that language in these exclusions relieves them of any duty to defend the contractors and sub-contractors, because all allegations in the Tenant Actions relate to defects in their named insured's work. The work/product exclusion removes from coverage damage to "that particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it," "property damage to your product' arising out of it or any part of it," and "property damage to your work' arising out of it or any part of it." The premises hazard exclusion removes from coverage damage to "property you own, rent, or occupy...," and damage to "that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the property damage arises out of those operations."

The premises hazard exclusion, as it might apply to any allegations in the Actions is co-extensive with work/product exclusion in this case, since the products and work applied in the complex involved real property. A Queens Personal Injury Lawyer said the legal understanding and interpretation of a work/product exclusion has been explained numerous times in a variety of cases. The fact that defective work is alleged, does not mean that the work/product exclusion applies. The exclusion applies only if the claimed damages relate only to the work or product itself, such that they make out only contractual or warranty type claims; if some defective work or product causes damage to persons or to property other than to any installed product or work performed, the exclusion does not apply. In a landmark case it was held that the consequence of not performing well is part of every business venture; the replacement or repair of faulty goods and works is a business expense, to be borne by the insured-contractor in order to satisfy customers.

There exists another form of risk in the insured-contractor's line of work, that is, injury to people and damage to property caused by faulty workmanship... While it may be true that the same neglectful craftsmanship can be the cause of both a business expense of repair and a loss represented by damage to persons and property, the two consequences are vastly different in relation to sharing the cost of such risks as a matter of insurance underwriting.

An illustration of this fundamental point may serve to mark the boundaries between business risks' and occurrence giving rise to insurable liability. When a craftsman applies stucco to an exterior wall of a home in a faulty manner and discoloration, peeling and chipping result, the poorly-performed work will inevitably have to be replaced or repaired by the tradesman or by a surety. On the other hand, should the stucco peel and fall from the wall, and thereby cause injury to the homeowner or his neighbor standing below or to a passing automobile, an occurrence of harm arises which is the proper subject of risk-sharing (as provided by the type of policy in the present case) The injury to persons and damage to other property constitute the risks intended to be covered.

In support of the allegation of the insurers, they cited a case which held that water damage to a building involved only repair costs to the owner. Critically, the underlying complaints which those cases analyzed did not allege any other damages to persons or property, other than to the work or product itself. In contrast, the actions allege consequential damages to the tenants' personal property and health. Damage to the tenants' personal property is not damage only to the work or product itself.

It was also alleged that mold exclusion removes from coverage all allegations in the underlying actions. In fact, some insurance policies do not exclude damages from mold, while others expressly provide coverage for damages arising from mold. As to those carriers, therefore, there is a reasonable possibility of coverage as to the tenants' alleged bodily injury related to mold exposure.

In relevant part, the insurers’ mold exclusions bar coverage for " bodily injury' [or] property' ... which would not have occurred or taken place, in whole or in part, but for the... inhalation of, ingestion of, contact with, exposure to, existence of, or presence of any fungi' or bacteria'... regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage." These insurers contend that all property damage and personal injury was related to mold, or concurrently to mold and water and that the Tenant Actions allege damage to personal property that was not concurrently damaged by mold. Alternatively, there is a doubt as to whether tenants suffered some damage to personal property that was related only to water intrusion, and this doubt supports a reasonable possibility of coverage.

The mold exclusions did not apply to bar coverage, because, the Tenant Actions alleged damages from water and/or mold. The tenants have sustained "significant property damage and other economic damages as a result of the water damage and mold infestation present in their apartments. Such losses may include but are not limited to the costs of replacing or restoring property damaged by water and/or exposed to toxic mold."

Wherefore, insurance coverage has been sufficiently established in the consolidated actions for a duty to defend the contractors and sub-contractors.

Are you a victim of a faulty product or a poorly constructed house? Have you suffered damages by reason of the negligence or lack of care of another? Are you in pain because of an inefficient worker you’ve hired? Do you want to do something about it but you don’t know how? Let us help you. Know your rights and protect yourself from past, present and future harm. Be wary of your surroundings and defend yourself from these careless individuals who have no regard of other people’s safety but themselves. Contact Stephen Bilkis & Associates.

A law firm claims that for several years, the Attorney General has devoted substantial resources to an investigation of the $85 billion student loan industry. The investigation has revealed that the industry is infected with serious conflicts of interest. The said conflicts of interest have prevented students and parents from making informed decisions about financing higher education. The investigation, which remains open, has resulted in numerous settlements with schools and lenders, including a student lending institution. In these settlements, schools and lenders have agreed to adopt the Attorney General's Student Loan Code of Conduct, which prohibits lenders from providing improper financial incentives to schools and eliminates a number of other practices presenting conflicts of interest.

a New York Injury Lawyer said that based on records, the Attorney General has widely publicized its commitment to the protective efforts, particularly with respect to illegal relationships between schools and greedy student lending institutions. Notably, the Attorney General entered into a $2 million settlement with the student lending giant which brought about a code of conduct prohibiting greedy and illegal behavior by the lender. However, the investigation surrounding the settlement is now being carefully, and needlessly, shrouded by the Attorney General’s office. The consumers are entitled to the information discovered by the Office of the Attorney General to ensure fair dealings with the student lending giant, and the Office of the Attorney General should encourage, not interfere with those attempts at protective measures.

The law firm moves for a judgment directing the accused parties which includes the State of New York, Office of the Attorney General and the Records Appeals Officer to comply with the duties imposed on them to provide the information requested by the complainant in its April 17, 2009 request and May 29, 2009 appeal, and awarding reasonable lawyer’s fees and litigation costs.

More specifically, a Nassau County Personal Injury Lawyer said the law firm seeks access to the documents associated with the Office of the Attorney General's investigation of the student loan industry, as they relate to the student lending giant or any related subsidiaries with respect to the preferred lender relationships and kick-back arrangements between the student lending giant and various colleges and universities.

The accused parties and the student lending giant oppose the petition through their answers, affidavits and affirmations. They assert a counterclaim that although the Office of the Attorney General has sustained some but not all of the lending company’s claims of exemption from disclosure based on the competitive injury exception, to the extent that the Office has not sustained the claims of exemption.

In response to the counterclaim, the Attorney General’s Office admits that the accused parties sustained some but not all of the lending company’s claims of exemption from disclosure. A Queens Personal Injury Lawyer said that the Office asserts that if the documents that the accused parties declined to provide exemptions are ordered to be disclosed, any information that would constitute an unwarranted invasion of personal privacy and any lawyer-client communication should be protected. The accused parties assert that they declined to find certain documents be exempt because the student lending company failed to establish a likelihood of substantial competitive injury from the disclosure of the documents.

During 2007 and 2008, the Office of the Attorney General sought a number of documents from the student lending company, both in demand letters and by subpoenas. The lending company produced the documents voluntarily in response to the demand letters, as well as in response to the subpoenas. Through its lawyers, the lending company requested that the documents they provided be governed by the provision which permits any person who submits information to a State agency to request that the information be exempted from disclosure under the trade secret exemption.

On April 11, 2007, the lending company entered into a settlement with the Office of the Attorney General. The lending company agreed to adopt the Attorney General's Code of Conduct governing student lending and to contribute to a fund devoted to educating college-bound students about their loan options. They also agreed to discontinue providing staffing for school's call centers or other staffing for college financial aid offices, discontinue paying financial aid officers for serving on advisory boards, and discontinue paying for any trips or travel for any financial aid officer.

The settlement further requires that the lending company cooperate in any ongoing or future investigations of student loans. They agreed to produce, voluntarily and without service of subpoenas, any information and all documents related to student loans reasonably requested by the Attorney General’s Office. In fact, the Office has requested and received documents from the lending company after the settlement was executed. Furthermore, the settlement provides that if the lending company commits a material breach of the agreement, the settlement may be terminated and an investigation, prosecution action or proceeding against them may be conducted.

On April 17, 2009, the Attorney General’s Office received a request for records related to its investigation of the student loan industry from an investigator in the law firm. The law firm requested the documents related to the student lending corporation and its affiliates obtained by the Office of the Attorney Secretary during its investigation of the student loan industry. The letter stated that the request includes, but is not limited to the 11 requests.

By a letter dated May 22, 2009, the Office of the Attorney General denied the law firm’s request on the ground that the documents requested were compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations or judicial proceedings. The law firm administratively appealed, and by a letter, the determination was upheld on the ground that the law enforcement exemption had been correctly invoked.

On November 9, 2009, the Attorney General’s Office notified the student lending company that it intended to determine whether the request for an exception should be granted, continued or denied. The lending company submitted an additional written statement of the necessity for the granting or continuation of an exception to disclosure. By a letter, the lending company withdrew its claim of exemption as to some documents, and maintained that remainder of the documents are exempted from disclosure because disclosure would cause substantial injury to their competitive position. They also asserted that all of the documents were also exempt under the law enforcement exemption, and that certain documents contained information entitled to protection because disclosure would constitute an unwarranted invasion of personal privacy.

By letter, the Attorney General’s Office granted the lending company’s request for an exception to certain documents, except for those portions that do not contain essential business terms. The Office granted the request for an exception in its entirety as to certain documents, and denied the request for the remainder of the documents.

On December 30, 2009, the Attorney General’s Office issued an appeal determination that expanded the number of documents deemed protected under the competitive injury exemption. The appeal determination did not address the other grounds for exemption.

In support of the petition, the law firm contends that the letter of denial dated May 22, 2009 did not contain any explanation of any of the documents that were being withheld or particularized reason for the withholding. Also, the June 23, 2009 letter did not contain any explanation of any of the documents that were being withheld or particularized reasons for the withholding. The law firm’s appeal specifically requested an explanation of the reasons for the denial fully in writing as required by law. In response, the Office appeal upheld the denial with only the simple explanation that the Office correctly invoked the exemption. The law firm was advised that there were no further avenues for administrative review of the request.

The law firm claims that the accused fail to meet, or even address, the requisite burden in establishing a basis for withholding the requested documentation. The initial denial provided no analysis of the determination to deny accessibility. The subsequent confirmation provided no additional insight into the decision to deny accessibility.

The accused parties contend that the denial of the law firm’s request was valid when issued and remains valid today. The Office of the Attorney General properly denied disclosure of the requested documents because disclosure would interfere with law enforcement investigations. The investigation of the student loan industry was, and continues to be, a major investigation of a large, very competitive business. The documents requested could provide information to current and potential targets of ongoing investigation, and would interfere with the ability to successfully conduct its investigations. Much of the information requested and received during the investigation is considered highly confidential and sensitive by the entities that provided the information.

The student lending company contends that the documents at issue, produced to the Office of the Attorney General during the investigation into the student loan industry, are exempt from disclosure under multiple exceptions. First and foremost, the Office would not have the documents but for the investigation. Thus, all of the documents were compiled for law enforcement purposes. A substantial number of the documents also are protected from disclosure because they contain confidential information about the business and disclosure would cause competitive injury to the lending company, or contain private information about individuals. Certain of the documents also contain lawyer-client communications and are exempt from disclosure on that basis. Finally, at the administrative level, the Office of the Attorney General has sustained many but not all of the lending company’s claims of exemption based on competitive injury, privacy and privilege. And to the extent that the Office of the Attorney General has not sustained the claims of exemption, the Attorney General’s Office’s determinations should be reversed.

The lending company requested at the time the documents were produced, that all the documents be maintained as confidential and exempt from disclosure. The expectation of confidentiality was specifically discussed at the time. The expectation of confidentiality for the documents was very important in the lending company’s decision to cooperate with the Office of the Attorney General's investigation. It would violate that expectation, and probably deter future cooperation by the lending company and other affected entities, if any of the documents were released.

Other than the enumerated list of 11 categories of documents requested, the law firm also made a blanket document request and an introductory general request. The two global document requests do not reasonably describe the records requested. However, the court finds that the global request, read in conjunction with the enumerated categories of documents requested was sufficient for purposes of locating and identifying the documents sought. It was possible for the court to review of the documents withheld on the basis that the document was not reasonably described in the request to determine if they should be produced.

The court finds that documents withheld solely on the basis that the materials were not reasonably described in the law firm’s request shall be produced, subject to the redaction conditions detailed.

Finally, the law firm seeks an award of lawyer's fees and litigation costs. Under the cited law, a prevailing requester may recover counsel fees and costs where the agency lacked a reasonable basis for denying access to the requested records. The court denies the branch of the law firm’s application. The court is not persuaded that the accused lacked a reasonable basis for its actions. The complainant law firm has not substantially prevailed in the matter, notwithstanding the court's directing that a limited category of documents be produced.

The legal system in any State is very distinct and a skilled lawyer can identify every distinction there is. When disclosing pertinent facts is used against you and could harm your establishment, seek legal counsel. Whether you have been charged with premises liability, medical malpractice or product liability, contact Stephen Bilkis & Associates.

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.

Continue reading "Alabama Reminds Oil Spill Victims of Deadline to File Lawsuit " »

A local championship golfer was granted $15,000 in damages, indicated reports form a New York City Injury Lawyer. The woman was said to have suffered discrimination at a golf course owned by the town.

The woman was actually wanting $500,000, to close the case, but she settled for the smaller amount.

The sum will be paid by the local town. The city will also pay a portion of the legal fees as well as their own. The town apparently spent a good deal of money defending itself in this case, although the town’s insurer is expected to cover the costs.

The town apparently tried to negotiate with the woman over and over before it became a federal case and the woman would not settle. She claimed to be entitled to more money and would not settle until she got it. In the end she settled anyway.

The woman claims that the town discriminated against her when she was not allowed to play alongside her father in a men’s tournament at a golf course that is owned by the town. The woman actually lives in nearby but owns property in the town and plays with her single digit handicap there.

Public golf courses in Massachusetts are not required to have mixed gender tournaments according to the District Court. The woman’s lawsuit was not the first of it’s kind however. According to a New York City Personal Injury Lawyer, the court had found in favor of women who said they were treated differently than men in play at private golf clubs as well as country clubs. A decision was made last year to expand the decision to publicly owned golf courses too.

The golf course denies that the woman was discriminated because of her gender and repeatedly tried to settle the case, but the woman would not allow it. So the question went from whether she was actually discriminated against to how much the damages should be. The town originally offered much more than the $15,000 settlement.

Whehter you have been a victim of premises liability, or have been injured in a auto accident, or a motorcycle accident, it is important to consult with legal counsel right away. You could be entitled to compensation for your injuries. It is important not to delay however, the early you consult with qualified legal counsel, the better your chances for a postive outcome.

Contact Stephen Bilkis and Associates for guidance and a free consultation. We have offices located throughout New York City, such as locations in Manhattan, the Bronx, Brooklyn, Queens and Staten Island. We also have locations in Suffolk County and Nassau County on Long Island, as well as Westchester County.

Continue reading "Woman in Golf Lawsuit Awarded Damages" »

After spending 80 days in jail, and facing possible life in prison, a West Bloomfield man who was accused of raping his autistic daughter has been granted a $1.8 Million dollar wrongful-arrest settlement. This was for a form of premises liability.

The man’s wife also faced decades in jail, as the accusation stated that she had stood by and watched the assaults take place. Their 14-year-old daughter, who is severely autistic and cannot speak, was the suspected victim. She and her 13-year-old brother were placed in foster care.

The case began to unravel when judges began to more closely examine the evidence. The only evidence in the case was a statement that the 14-year-old girl supposedly typed with the help of a teacher’s aide at her school, reported a policeman. She stated that her father had raped her since the age of 7 and that her mother had stood by and watched.

According to a friend, the statement came from a form of communication known as facilitated communication, where an aide helps the girl type on a keyboard. The 14-year-old only functions on the level of a 2-year-old, and the case began falling apart when a judge realized the girl could not answer simple questions with this form of communication. There were no physical signs of abuse or injury.

The case was dropped in March 2008 for lack of evidence, claimed a judge. The township lawyers deny any wrongdoing by the police. The family has a federal lawsuit against the Oakland County Prosecutor’s Office, the Walled Lake Consolidated Schools and the Michigan Department of Human Services. The defendants have asked the judge to dismiss the case on grounds of governmental immunity. The family named the police department in the lawsuit because of a two-hour interrogation of the 13-year old son without an adult representative. The 13-year old suffers from a form of Autism called Asperger’s Syndrome, and was seen rocking and crying on the interview video.

It is unclear how much township insurance will rise because of this settlement. The county prosecutors as they would in New York City and Westchester County have admitted to not investigating the facilitated communication method before charging the parents, and after making nationwide calls, they were unable to determine the reliability of the method.

Continue reading "Father Arrested in Sexual Abuse Case Results in $1.8 Million Settlement" »

The American Cancer Society has stated that secondhand smoke is hazardous to health, recollects a New York Injury Lawyer. Now a public smoking ban has been put into action in New York City.
Arguments have been made by authorities that smoking bans will reduce modeling of this habit as normal behavior and possibly reduce the chance that the action will be mimicked. It is also possible, that restricting smoking in crowded areas would reduce the risks associated with the hazards of secondhand smoke as well as reducing litter and fires. However, there are not many differenced in the chemistry of the smoke from campfires or burning leaves than that of cigarettes. Bans have not been placed on these other activities because the amount of smoke produced is minimal. Therefore, the banning of smoking outdoors would yield minimal results as to the hazards of secondhand smoke.
Smokers have lost their right to smoke in most public buildings. However, smoke tends to dissipate quickly outdoors. Non-smokers do have the option of avoiding the smoke and if they are concerned for the modeling of this behavior in the public, they have the right to ask the person if they would mind moving to a different place to smoke.
Smokers should continue to have a right to smoke when others’ lives are not put at risk. Non-smokers should have the right to frequent public facilities without being exposed to harmful toxins. A compromise between the two could be reached to satisfy the rights of both, believes a New York Injury Lawyer. Separate sections within a building for smokers and non-smokers were not especially helpful to remove the toxins from the air. However, the concentration of cigarette smoke is abated when outside. Because the harmful substances contained in cigarettes is similar to the toxins contained in grilling smoke, camp fires and leaf burning; evidence does not substantiate the reasoning to ban outdoor smoking. One toxin is just as hazardous as the other. Creating a ban for outdoor smoking for the purposes of reducing the risk of mimicked behavior with children as an acceptable behavior may be morally feasible, but is not backed with medical documentation to support the reasoning. Designated locations at public parks and beaches would be a much more reasonable compromise without infringing upon the rights of either the smoker or non-smoker. The ban is also in effect in Staten Island.

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