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.

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.

A man died and his two of his daughters were removed from the care of his wife and the children’s maternal grandmother by the City Children's Services without a court order. The City Children’s Services filed neglect petitions against all the children’s father, mother and grandmother. A New York Injury Lawyer said the petitions allege that the mother and the father neglected the son by failing to provide adequate supervision and guardianship. Specifically, the petitions allege that when the couple together with their son left the grandmother's home, they stayed in an abandoned building in Brooklyn. A New york he petitions allege that the building had no heat or electricity and access to the building was obtained through a window that the father broke on a prior occasion. The baby fell asleep in a stroller and the couple slept on the mattress on the floor.

When the baby started crying, his father woke up and gave him a bottle propped up with a tee-shirt and went back to sleep. The father woke up six or seven hours later and found the baby cold and stiff. He attempted to revive the baby but failed then told her wife to call 911 in a payphone. The child’s mother went out but returned without making the call and the father was the one to call 911. The baby was taken to the hospital where he was pronounced dead.
The petitions also allege that the children were neglected as a result of the failure of their mother, father and maternal grandmother to provide adequate food, clothing and shelter. Specifically, the petitions allege that the children were dirty and not adequately fed and that the home was dirty and infested with roaches and mice. The petitions also allege that garbage bags, dirty dishes and dirty clothing were observed throughout the residence. Finally, the petitions allege that the two daughters were derivatively neglected children by virtue of the neglect of their baby brother. On the day the petitions were filed, the Court granted the request of the City Children Services for a remand of the two girls.

A fact-finding hearing was conducted for 15 months and the City Children’s Services withdrew the petitions against the maternal grandmother after she moved to dismiss the petitions for failure to establish a legitimate case. A witness of the fact finding was a caseworker who conducted the initial investigation into the allegations of neglect. She visited the case address and testified that various family members were present when she visited. She indicated, however, that the maternal grandmother was rarely present since she was generally at work. She testified that it was in a deplorable condition, infested with roaches and vermin that although the conditions of the home were improved, they subsequently deteriorated. She testified further that the children’s father did not live at the case address and he was not even allowed to visit there.

The Medical Examiner testified and was qualified as an expert in forensic pathology. She testified that the cause of the baby's death was positional asphyxia due to soft bedding covering the baby's mouth and she concluded that it was an accident. She testified that these conclusions were based on a reasonable degree of medical certainty. She further testified that the baby had been placed in the stroller and that he eventually slid down and as a result, the baby's airway was covered by the blanket, tee-shirt and the bottle in the stroller. The Medical Examiner also testified that the child, like all babies younger than six months of age, did not have the musculature in the neck necessary to lift his head, hold it up and move his body to get air. The Autopsy Report lists the manner of death as accident while asleep in stroller with clothing over airway and there was absolutely no intent to cause the death. The Medical Examiner also testified that the baby was dirty, had dirty fingernails and the baby also had areas of thinning hair around the scalp which suggested that the baby had been lying down in the same position for extended periods of time, long enough to kill the hair follicles. The Autopsy Report also indicated that marks were observed on the baby's scalp consistent with lice.

Neither parent testified on the hearing. The father called a witness doctor who was qualified as an expert in pediatrics and child abuse. A Brooklyn Personal Injury Laywer said the expert testified that the circumstances surrounding the baby's death were similar to Sudden Infant Death Syndrome. The accused parties assert that the petitions should be dismissed because the baby's death was an accident. They emphasize that they never intended to hurt their son and that the Medical Examiner's testimony establishes that the death was unintentional.

The City Children’s Services and the Attorney for the two daughters disagree. They contend that a finding of neglect can be based on an unintentional injury and although the parents did not specifically intend to harm their son, they failed to exercise a minimum degree of care that resulted to his death. Accordingly, they assert that findings of neglect are warranted against both parents.

For the reasons more fully set forth, the Court agrees with the City Children’s Services and the Attorney for the Children and enters findings of neglect against the mother and findings of derivative neglect against both parents. A Queens Personal Injury Lawyer said both parents equate the term accident with unintentional injury. They assert that since the son’s death was unintentional, it was accidental and should be immune from liability of neglect. The Court disagrees with the conclusion. The Court states that the parents ignore the plain language of the Family Court Act, which specifically provides for a finding of neglect based on an unintentional injury. Furthermore, the parents ignore the fundamental concerts of tort law; specifically, that liability in negligence does not require intent to cause injury. It requires only a failure to exercise reasonable care, which results in an injury that was reasonably foreseeable. Lastly, the Court states that the term accident does not apply when the parties' intentional acts had unintended consequences and it is therefore not a defense to allegations of neglect.

The Court rejects the parents’ assertion that the child's death was accidental and finds instead that it was the result of the parents' failure to exercise a reasonable degree of care. Accordingly, the Court enters findings of neglect and derivative neglect against the mother and findings of derivative neglect against the father.

The death of the couple’s son may have been unintended but it was not the result of an unavoidable or inevitable accident. There was nothing in the circumstances leading up to the death that was unusual or unexpected. Although the couple did not intend to harm their baby and the results of their conduct were unplanned, their actions were otherwise deliberate. They intentionally removed a two-month-old infant from his home late in the night while he was recovering from a cold, without making adequate sleeping arrangements or taking necessary precautions against the cold, in order to bring him to an abandoned building without heat or electricity and allow him to sleep in a stroller for six hours without supervision, with a bottle propped into his mouth by a tee-shirt. The actions clearly demonstrate a failure to exercise a minimum degree of care. The evidence establishes that the children's physical, mental or emotional condition was placed in imminent danger of impairment. In reaching the conclusions, the Court notes that both parents chose not to testify and such warrants the drawing of the strongest negative inference against them that the evidence will allow.

Children rely on their families to protect them and make sure that all their needs are satisfied. When you know of children with such needs not being met, you may consult a skilled attorney from Stephen Bilkis and Associates. whether you have a wrongful death action, negligence, or medical malpractice action, their office can help.

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

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

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

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

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

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

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

A personal injury lawsuit (private individual vs. 1st additional insured) was commenced in February 2006. The plaintiffs in the personal injury action allege that the private individual, a Connecticut resident, sustained serious bodily injuries (injury) in an accident which led to her death (wrongful death) on 2 April 2004, when she exited from an elevator (defective product) in a building located in Hamden Connecticut (the "building").

The defendants in the personal injury action were the 1st and 2nd additional insured and the elevator company. The building was owned by the 1st additional insured on the date of the accident and the 2nd additional insured is a member of the 1st additional insured. The elevator company entered into an agreement with the 1st and 2nd additional insured to maintain the elevators in the building where they were required to name each entity as an additional insured under its insurance contract. A commercial general liability insurance policy (from the 1st defendant) was obtained by the elevator company providing Commercial Liability Coverage effective on the date of the private individual’s accident.

A New York Injury Lawyer said the personal injury action was settled for a total sum of $2.5 million. The settlement in the personal injury action was paid as follows: [1] Plaintiff, on behalf of the 1st and/or 2nd additional insured — $1,000,000; [2] 1st defendant on behalf of the elevator Company — $1,000,000; and [3] 2nd defendant on behalf of 1st and/or 1nd additional insured — $500,000. Plaintiff then commenced this action on its own behalf and as subrogee of 1st and/or 2nd additional insured to the extent that it was required to fund the settlement in the personal injury action and to pay for 1st and/or 2nd additional insured’s defense in the personal injury action.

A dispute involving insurance coverage arose where plaintiffs claim that defendants, Insurance Companies (1st defendant and 2nd defendant), wrongly refused to acknowledge plaintiffs’ additional insureds (1st additional insured and 2nd additional insured) under certain insurance policies and failed to defend and indemnify the Home Properties in a separately commenced personal injury action.

Plaintiff, also an Insurance Company, brings this action both on its behalf and also as subrogee of the 1st and/or 2nd additional insured.

A Nassau County Personal Injury Lawyer said that plaintiffs allege in their complaint that the defendants each breached the duty of good faith and fair dealing, their fiduciary duty and willfully violated the Connecticut Unfair Insurances Practices Act and Connecticut Unfair Trade Practices Act. On these causes of action plaintiffs seek compensatory damages amounting to $1.25 million, punitive damages and attorneys' fees.

In the present case, a genuine conflict of law exists on whether the New York Law or the Connecticut law should be applied.

To determine the appropriate choice of law in a contract case, a court is required to apply the law of the state with the "most significant relationship to the transaction and the parties", under the "center of gravity" or "`grouping of contacts" test. In applying the "center of gravity" test, courts examine the following factors: [1] the place of contract; [2] the place of negotiation of the contract; [3] the place of performance; [4] the location of the subject matter of the contract; and [5] the domicile, residence, nationality, place of incorporation, and place of business of the parties. A Queens Personal Injury Lawyer said the court must focus on the contacts that are significant in the particular contract dispute. A court should also consider public policies underlying conflicting laws that are readily identifiable and reflect strong governmental interests. A liability insurance contract should be governed by the law of the State which the parties understood to be the principal location of the insured risk unless, with respect to the particular issue, some other state has a more significant relationship to the transaction and the parties. Where, however, the policies cover risks in multiple states, the state of the insured's domicile is the considered the proxy for the principal location of the insured risk.

Applying the above-mentioned legal standards, the court finds that Connecticut is the principal location of the insured risk based on the fact that the elevator company’s operations at the building located in Connecticut were insured under each policy, the personal injury action was litigated in Connecticut, and and the risks for which plaintiffs seek coverage as additional insureds arose from the elevator company’s work for the 1st additional insured and 2nd additional insured performed only at the building located in Connecticut. Moreover, although plaintiffs allege in the complaint that 1st additional insuredl's principal place of business was in Rochester, New York, plaintiffs now maintain that its principal place of business is and/or was in Hamden, Connecticut, based upon the affidavit of the Director of Risk Management for 2nd additional insured where he states that the 1st additional insured still exists, but was solely created to own the building in Hamden, Connecticut.

Accordingly, the "center of gravity" lies in Connecticut and there is no basis to find that New York has a more significant relationship to the transaction and the parties.

The defendants alternatively argue that even under Connecticut Law, the claims cannot proceed. The argument is incorrect. Civil Practice Law and Rules (CPLR) provide that every court will take judicial notice of the common law, Constitutions and public statutes of every other state. Thus, the court proceeds to consider the arguments presented regarding Connecticut common and statutory law.

Plaintiffs allege that the 2nd defendant breached the duty of good faith and fair dealing by: [1] structuring the settlement to benefit its own interests at the expense of plaintiffs; and [2] improperly and without any reasonable justification, denying coverage to the additional insureds under the policy.

Plaintiffs also allege that the 1st defendant breached the duty of good faith and fair dealing by: [1] improperly favoring one insured, the elevator company, to the detriment of its other insureds, 1st and 2nd additional insureds, by attempting to exhaust its policy by payment on behalf of the elevator company without any provision to protect the additional insured’s rights under the 1st defendant’s policy or to contribute to the settlement on their behalf; and [2] improperly and without any reasonable justification, denying coverage to the additional insured’s under the 1st defendants’ policy.

The court agrees. Plaintiffs do in fact allege that the defendants acted in bad faith.
Defendants argue that the cause of action for breach of fiduciary duty is untenable under Connecticut law. Specifically, defendants contend that no fiduciary duty can exist where the parties are business entities that engaged in an arm's length transaction.

Under Connecticut law, to find the existence of a fiduciary duty, the relationship at issue must be examined. A "fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." Integral to the existence of a fiduciary duty is that the superior position of one party is the keystone of the trust and confidence placed in that party by the other. Whether such a confidential relationship exists is usually a question for the finder of fact.

In the context of the relationship between insured and insurer, the trial courts of Connecticut have not yet recognized a fiduciary relationship, at least as it concerns first party claims. Some courts have, at least in dicta, distinguished rights between insured and insurer on first party benefits from situations dealing with third party claims. It was held that "while there are circumstances, particularly when dealing with third party claims, in which fiduciary-like duties may be placed on the insurer to benefit the insured, such situations do not arise in first party disputes between insurer and insured."

At bar, the allegations concern defendants' actions insofar as they relate to the payment of third party benefits. There is no basis in Connecticut law to rule at this time that such a claim fails as a matter of law.

Defendants' business practices and their frequency of failing to adopt and implement reasonable standards for the prompt investigation of claims for additional insured coverage "is a proper area for discovery, particularly as such information may only be in [the insurer's] possession". Although on a dispositive motion pursuant to CPLR or at trial, the burden will be on the plaintiffs to prove that the defendants frequently engaged in acts in violation of CUIPA and CUTPA, plaintiffs' burden at this point is far easier, which is to present facts that state a cause of action against the defendants. A Brooklyn Personal Injury Lawyer said the plaintiffs have easily met its burden because, at this stage, the facts are afforded every favorable inference.

On the issue of damages and attorney’s fees, under Connecticut law, plaintiffs may recover "punitive damages or damages of any nature beyond the policy limits" in a tort cause of action alleging breach of good faith and fair dealing by an insurer and for an intentional breach of a fiduciary duty. In addition, because CUIPA violations can be the basis for violations under the CUTPA, punitive damages and attorneys' fees may be awarded.

Have you been injured for causes that are not your fault? Someone should answer for that. Contact Stephen Bilkis & Associates to know what legal remedies are available to you. Our legal teams are well-trained in personal injury cases and we assure you that you will be very well represented.

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.

The accused moves to dismiss the complainant’s amended objection by reason of the complainant having been added as an accused following the expiration of the law of limitations. For the reasons set forth, the accused person’s motion is granted in part and denied in part.

The complainant was diagnosed with asbestosis in February of 1994. He filed a lawsuit to recover for damages arising from his condition in August of 1994. The accused Kitchen and Bath Company was not named in that complaint. More than fourteen years later, the complainant was diagnosed with lung cancer. He passed away shortly thereafter. On July 12, 2011, the complainant’s family filed an amended complaint alleging new causes of action both as against the accused named in the original complaint, against the Kitchen and Bath Company, and others as new accused.

A New York Injury Lawyer said that in the motion, the Kitchen and Bath Company argue that the complainants were lawfully time barred from amending the original complaint to add it as an accused because the applicable law of limitations had long since run. The Kitchen and Bath Company submits that since the complainants are time-barred from suing for personal injuries, the deceased man’s estate is also time-barred from suing wrongful death. The complainant concedes that their claims are time-barred. However, they argue that the injury claims are governed by a different limitations period and are therefore duly pled. In general, the two claims are materially different.

The Court of Appeals clarified that the two causes of action are predicated on essentially different theories of loss which accrue to different parties. In the context, personal injury actions are brought to recover for a deceased person’s conscious pain and suffering prior to his death. It also accrues to a deceased person’s estate. The law sets a three year statute of limitations for such claims arising from the latent effects of exposure to toxic substances, including asbestos. The period begins to run from the date of discovery of the injury by the complainant or from the date when through the exercise of reasonable diligence such injury should have been discovered by the complainant, whichever is earlier. Wrongful death claims, on the other hand, are designed to compensate a deceased person’s beneficiaries who have suffered financial injury as a result of the wrongful death. These claims may only be brought on behalf of the deceased person’s beneficiaries. Given the stark differences, it is not surprising that each cause of action is governed by a different statute of limitations. These claims are governed by the law which provides that such claims must be commenced within two years after the person’s death.

In terms of the complainant’s unjust death claim, the deceased passed away on March 21, 2009 and the amended complaint was not filed until July 12, 2011, more than two years later. As the complainants concede, the death claims herein plainly are time-barred and to the extent, the accused party’s motion is granted.

A NYC Personal Injury Lawyer said the only dispute is whether the deceased man’s injury claims are actionable. In such regard, the Kitchen and Bath Company argues that such claims are time-barred as to it because it was added to the lawsuit as an accused almost seventeen years after the original complaint was filed. In alternative, the Kitchen and Bath Company also argues that the deceased man’s ability to sue for his personal injury claims expired upon his death.

It is established that a party's lung cancer constitutes a separate and distinct injury from his asbestosis so as to trigger New York's second injury rule. Manifestations of toxic injury cases do not become apparent until many years of exposure and may be actionable if they are separate and distinct from an earlier medical problem caused by the same problem, even if the statute of limitations on the previous injury has expired. Further, it is axiomatic that claims are not lost simply because the injured party has died. It is therefore immaterial that the deceased filed his original asbestos-related injury claim in 1994 or that he passed away prior to amending the complaint. What is important is that the complainants amended the original complaint, within three years of the manifestation of the deceased man’s lung cancer, which is a separate and distinct disease from asbestosis and a second injury under the law. Therefore, the complainants claim in relation to the deceased man’s lung cancer is timely.

Accordingly, the Kitchen and Bath Company’s motion to dismiss is granted in part and denied in part. An NY Personal Injury Lawyer said the court ruled it is further ordered that the complainant’s cause of action for wrongful death is dismissed as against all the accused and it is further ordered that the complainant’s cause of action for personal injuries relating to the deceased man’s lung cancer is severed and shall continue as against all the accused, including the Kitchen and Batch company.

As a family member, we may feel weighed down as we try to center our attention on taking care of our ill loved ones during a hard time. Let us at Stephen Bilkis and Associates fight for the financial worries that your family member experienced due to the injuries sustained.

A complainant man sought to recover damages for legal malpractice and filed an appeal from an order of the Supreme Court which granted the lawyers’ motion to dismiss the complaint.
It started when the counsel of the complainant represented him in a personal injury action resulting from injuries apparently sustained by the complainant.

A New York Injury Lawyer said that the complainant obtained a default decision against one of the lawyers in the personal injury action. Subsequent to the investigation on the issue of damages, the Supreme Court entered a money judgment in favor of the complainant. The complainant retained the law firm to collect on the money judgment. However, the lawyer subsequently signed consent to change attorney form in which the firm replaced him as the complainant's counsel in the personal injury action. The lawyer then filed an action to vacate the money judgment entered against him on the ground that he had not been properly served with process in the said action. In an order, the Supreme Court granted the action to vacate the money judgment and dismissed the action as asserted against the lawyer.

The complainant initiated the action against the lawyer to recover damages for legal malpractice. He claims that the lawyer had been negligent in failing to properly accomplish the service of process upon the personal injury lawyer prior to the expiration of the law of limitations in the action. The lawyer moved to dismiss the complaint on the ground that it was time-barred by the applicable three-year law of limitations and for failure to state a reason for action. The Supreme Court granted the branches of the motion and modified.

A Brooklyn Personal Injury Lawyer said that based on the record, the Supreme Court improperly granted the branch of motion to dismiss the complaint as time-barred and to dismiss a cause of action on the ground that it is barred by the applicable law of limitations. The lawyer accepted the initial burden of establishing that the time in which to sue has expired. The lawyer satisfied the initial burden by demonstrating that the claimed legal malpractice occurred more than three years before the instant action was initiated. Opposing the Supreme Court's determination, the evidentiary facts claimed by the man were sufficient to raise an issue of fact as to whether the law of limitations was charged by the policy of continuous representation because the lawyer continued to perform services for the complainant. However, the Supreme Court properly granted that branch of the lawyer's motion which was to dismiss the complaint for failure to state the reason for action. Based again on the record, a motion to dismiss will fail if all facts are assumed as true then every possible conclusion would be favorable to the complainant.

In an action to recover damages for legal malpractice, a complainant must demonstrate that the attorney failed to implement the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. A complainant must also demonstrate that the attorney's breach of duty proximately caused the complainant to sustain actual and ascertainable damages. To establish connection, a Bronx Personal Injury Lawyer said that the complainant must show that he or she would have exists in the underlying action or would not have incurred any damages if not for the lawyer's negligence. The complaint failed to contend any facts inclining to show that the lawyer caused the damages. The complainant would have prevailed in the action of the lawyer's alleged negligence in failing to serve process upon the lawyer in the personal injury action. The complainant's remaining arguments regarding dismissal are without merit. As a result, the Supreme Court properly granted the lawyer’s motion to dismiss the complaint.

Numerous accidents happen in every corner of the world every day. No one can tell if one will strike your way. If misfortune happens, skilled lawyers can provide you with the most appropriate legal assistance. However, some wrongful death proceedings results will come out not in favor of you. During this situation, contact Stephen Bilkis and Associates who are always ready to provide you with sound legal advice.

The deceased woman was seriously injured in an accident. She died from such accident injuries and was survived by her husband and twelve children, seven of whom were infants at the time of her death.

From 1966 to 1972, the Department of Social Services furnished AFDC (Assistance for Families with Dependent Children) to the deceased and her infant children in the sum of approximately $36,000. Since all assistance and care of whatever nature was furnished before the injury then no lien may be attached to any personal injury recovery.

The administrator of the deceased woman’s estate commenced a combined action for personal injuries and wrongful death. The combined action has been settled for $100,000. The Court allocated $12,500 to the personal injury cause payable to the estate for the 4 3/4ths days the woman survived.
The Department recognizes that in the absence of an assignment from the beneficiaries, there is no right to recover from the proceeds of the wrongful death cause. Recovery is sought by the Department solely from the estate.

The deceased woman’s estate is the estate of a Recipient. As an estate of a recipient, the estate is responsible for all AFDC allocated to such recipient as the head of the family under the Social Services Law. A recipient's estate is not responsible for Medical Assistance paid to such recipient unless the recipient was over 65 and left no surviving spouse or children under 21 under the Social Services Law.

According to a New York Injury Lawyer, the deceased woman’s estate is also the estate of an RR (Responsible Relative). The estate of a deceased adult Responsible Relative is responsible for all AFDC payments allocated to the Responsible Relative’s infant children under the Social Services Law. A Living Responsible Relative would not be responsible unless of sufficient ability during the period of assistance. The estate of a Responsible Relative is probably not responsible for MA furnished to infant children although a living parent would, if of sufficient ability, be responsible. It is determined in any event that the deceased was not of sufficient ability during the period of assistance.

It is obvious from the above that the Department's right to recover for AFDC payments to the deceased and her infant children will far exceed the net estate after administration expenses. The distribution of the proceeds of both the personal injury cause and the wrongful death cause is made by separate decision.

The recurring problem of the right of Social Service Departments to recover for public assistance and care given to needy recipients has been troubling our courts since 1935 and with increasing frequency of late. In our Supreme Court, such issues arise mainly with respect to claims by a Department against personal injury recoveries. A Brooklyn Personal Injury Lawyer said that the Surrogate's Courts are concerned with claims by a Department against estates and as well against beneficiaries of the estates.

Although there have been hundreds of reported decisions, for reasons which are obvious, none has attempted to articulate at any length the basis for such decision.

In the absence of a recovery ruling authorizing a Department to recover assistance and care correctly paid, there is no obligation to repay the Department. New York has enacted such recovery statutes. Although enacted separately, these recovery statutes are interrelated and dependent upon one another.

A recovery ruling is one which authorizes a Department to recover the cost of assistance and care from a recipient or the estate of such recipient, and from a responsible relative of such recipient or from the estate of such responsible relative.

Almost all assistance and care to the needy of the state is today given under one or another of the categorical programs mainly Assistance for Families with Dependent Children and Medical Assistance under the Social Security Act. A Bronx Personal Injury Lawyer said that as a condition of federal assistance, some of these programs limit the resources, both in terms of the recipient's property and contribution from his responsible relatives, to which the State may look in determining eligibility. As a consequence, New York has been compelled to amend its recovery rulings or enact new recovery rulings. Pre-amendment decisions in many cases are no longer relevant.

Since Departments often contend before the courts that denial of recovery imperils federal assistance, it should be observed that the Social Security Act does not require as a condition of assistance that States enact recovery orders. In fact many States have none. True, Congress has given implied recognition to recovery orders by requiring States which do recover to share the recovered proceeds. But the federal law is directed toward incorrectly not correctly paid assistance.

Under the recovery laws, recovery may often be had against the mother for assistance allocated to her but not to the children. The Departments are required to maintain separate allocations and are most cooperative in furnishing such records to the courts.

With these general observations, recovery law is the basic law which in the first instance determines liability and around which the other laws revolve.

It became a statewide law when the State took over from the municipality’s responsibility for public assistance.

As originally enacted in 1929, a spouse was responsible for the other spouse; grandparents and parents were responsible for their adult and infant grandchildren and adult and infant children and grandchildren were responsible for their parents and grandparents.

The first major change in the decree was made in 1936 and the amendment exempted infant children or grandchildren from all responsibility for their parents or grandparents. Although no decision has considered the question, the 1936 amendment also exempted infant spouses and infant parents from all responsibility for assistance and care given to their spouses or infant children, while such Responsible Relative spouse or parent was an infant.

The next and last major amendment was made in 1966. The 1966 amendment exempted adult children from responsibility for their parents and exempted parents from all responsibility for their adult children. Parents, however, remained responsible for their infant children and adult children remained responsible for their spouses and infant children.

It is observed that the 1966 amendment was commanded on the States by the Social Security Act but only with respect to the MA categorical program. New York State, in amending the law, made the new provisions applicable to all assistance whether federally or solely locally supported.

In addition to defining who are Responsible Relatives also limited the conditions under which a Responsible Relative could be found liable. The law specifically provides that one is a Responsible Relative only if of sufficient ability.

This provision, as discussed has been held to mean of sufficient ability during the period when assistance was being provided to the recipient relative.

The law further limits the liability of a Responsible Relative. Subject to such further limitations, under the definitions of present section of the law, only an adult spouse for assistance and care to his spouse or an adult parent and step-parent only for assistance and care to his infant children or stepchildren can be held responsible as a Responsible Relative.

But such Responsible Relatives can only be held responsible if they were of sufficient ability during the period when assistance was being given to their recipient relative.

And, in conclusion, an infant can never be held responsible as a Responsible Relative.
As first enacted in 1901 it applied only to the liability of the recipient. It was modified in 1929 to apply to recipients, to the estates of recipients, to the Responsible Relatives and to the estates of the Responsible Relatives.

A public welfare official may bring action or proceeding against a person discovered to have real or personal property, or against the estate of a person who dies leaving real or personal property, if such person or anyone for whose support he is or was liable, received assistance and care during the preceding ten years, and shall be entitled to recover up to the value of such property the cost of such assistance or care. Any public assistance or care received by such person shall constitute an implied contract.

As observed, the law gives to a Department the right to recover against the recipient himself; against the Responsible Relative of the recipient; against the estate of a recipient, and against the estate of the Responsible Relative.

The law distinguishes between actions brought to recover from the Living recipient or his living Responsible Relative and actions or claims against the Estates of deceased recipients or Responsible Relatives.

With respect to actions against living recipients and Responsible Relatives, from its inception in 1929, the law has permitted recovery from such persons discovered to have real or personal property. Whatever may have been the original purpose of employing such odd but broad statutory language, the decisions establish that the law has never been used by the Departments to recover from wages or salaries of living recipients or Responsible Relatives or from property acquired from such earnings. Today this is an established policy. The policy is understandable since the expressed purpose of public assistance is to assist the recipient to attain and retain self-supporting status.

Instead, as the decisions establish, the thrust of proceedings by the Departments against Living recipients and Responsible Relatives has been to recover from windfalls to them resulting from personal injury recoveries or inheritances as beneficiaries from another's estate.

In fighting for your loved one’s rights in an accident brought about by the negligence of other people, call Stephen Bilkis and Associates.

A pedestrian was fatally hit by a drunken driver on Route 35 earlier in the month. One New York Injury Lawyer says a strong case exists as the driver left the scene, though he later returned and stated that a pedestrian had been hit.

At around 1:35 A.M. the California Highway Patrol and Pacifica police department responded to a call. The report stated that someone called in to report a possibly deceased pedestrian that had been hit on the Sharp Park Road and Route 35. A New York Injury Lawyer reflects on the fact that a resident of Leopoldo Tobilla showed up shortly after the police to say he was driving and hit the pedestrian. The resident was immediately arrested and was found to be intoxicated. His DUI arrest was for DUI resulting in fatal injury and leaving the scene of an accident.

It will be interesting to see how the charges will play out since the man seemingly turned himself in. The arrested is being held at San Mateo County jail in Redwood City. He is currently charged with vehicular manslaughter, leaving the scene of a vehicle collision resulting in fatal injury, and driving while intoxicated. The suspect was arrested on scene after he returned explaining to officers that he had hit someone walking on the roadway. Any witnesses to the accident are asked to contact the local police to explain what happened. Though the pedestrian was declared dead on the scene it has not been released whether death was immediate upon impact. The accused is a fifty seven year old male and the level of his intoxication has not been released to news sources.

Information about where the suspect had been, what he had been drinking, his alcohol levels, and why he left or returned has not been released. It can be assumed that the driver felt some remorse in order to return to the scene and turn himself into the police. The information is not clear on how prosecutors are choosing to proceed in this case or whether all charges will be pursued.

If you or a loved one are involved in an accident involving a vehicle or a drunken driver, that has resulted in injury, or even wrongful death, contact Stephen Bilkis and Associates immediately. Only the best should represent you in court so that your legal needs are met, and you receive the compensation you deserve.

The Deepwater Horizon Oilrig explosion and subsequent oil spill devastated many families, lives, and coastlines. The man made devastation was incalculable. A New York Injury Lawyer has learned that the widow of one of the 20 crewmen that was killed by the explosion has settled her lawsuit with BP. As a result of the settlement, the presiding U.S. District Judge agreed to dismiss the suit.

While the exact terms of the settlement were not disclosed, her lawsuit against the BP partners that were named as a part of the suit was also dismissed. It appears that the only party involved in the disaster that was not named in her suit was Transocean, who was the owner of the rig.

This lawsuit is but one of the more than 350 lawsuits that have been filed against BP, Transocean, and the many companies and contractors that were part of the oil-drilling project, sources told a NYC Personal Injury Lawyer. Each of these are from parties who claim to have been injured and/or suffered economic loss due to either the explosion itself, or due to the resulting oil spill that affected so many beachfronts and communities.

The owner of the rig, Transocean, still faces at least one federal lawsuit from the victims. For those victims who want to file a claim in that lawsuit, the deadline the federal court has set is April 20, which incidentally is the one-year anniversary of the oil rig’s explosion.

While it may be relatively simple to attempt to assess the blame for the tragedy, what many of the people in the Gulf region have experienced can defy belief. While there are those whose losses may be simplified by their having a little oil wash up on their beaches, others have endured events that are more dramatic--events, which have altered the course of their lives forever. No one should ever forget about those who died as a result of this disaster.

During the course of these events, one thing remains explicably clear, with all of the technologically advanced equipment and instruments, no one, according to the official reports, prepared for the ultimate worst-case scenario, which ultimately happened.

If you have experienced the loss of a loved one becase of a wrongful death, or have suffered an injury because of a the negligence of another, it is important to seek legal guidance right away. You may be entitled to compensation for your injuries, including reimbursement for medical expenses, loss of income, and for pain and suffering.

Continue reading "Deepwater Horizon Widow Settles Lawsuit" »

The worst oil spill in U.S. history was set off last year by the Deepwater Horizon disaster which claimed 11 men at sea. The tragedy exposed several weaknesses, including severely outdated limited liability laws that have protected the very players who should be claiming responsibility, according to a Brooklyn Personal Injury Lawyer.

Because the wrongful death of the 11 men occurred offshore, the corporations and its contractors were shielded by maritime laws of limited liability. According to these laws, the companies can only be sued for future wages, minus taxes and expected living expenses – not for pain and suffering and other damages commonly sued for in the case of fatal onshore activities.

Congress has been called upon to raise or completely lift the limit; it wasn’t long before Congressmen and women were being chastised for their inactivity in the affair. One champion of the victims’ families stated, “It hasn’t been changed in 20 years. It really shows you how inadequate it is. You’re in a situation where either taxpayers end up footing the bill, or injured parties do, which seems fundamentally unfair.”

The Oil Pollution Act caps the amount of damages a corporation has to pay out. Fortunately, under public pressure, some companies volunteer not to invoke those limits. This highlights the possible problem that is likely to arise again, stated a New York Personal Injury Lawyer. Another accident at sea will happen, but if the next affair is not highly publicized, the corporation at fault may then see it possible to maintain protection behind the liability limit. Without public opinion against them, companies will not feel it politically expedient to repair grievances to their full capacity; they will not make voluntarily larger settlements.

“It needs to be changed,” the father of one victim exclaims. “If all these companies can care about is money, then they need to keep in mind that when they put men at risk, that costs money too. If you can’t bring yourself to consider it for any other reason, think of it this way.”

Continue reading "One Year Later: Oil Companies Remain Shielded by Offshore Liability Limits" »

A New York Injury Lawyer reports that a state appeals court recently reinstated a woman’s lawsuit. The wrongful death suit was in connection to a man she had considered to be her husband for four years, but who was not divorced from his previous wife before their wedding day. The plaintiff was completely unaware of this when she began seeking for compensation for her husband’s injuries and death.

The Sixth District Court of Appeal ended up ruling that someone who “believed in good faith” that he or she was legally married is, indeed, entitled to marital rights – including filing a wrongful death suit. This ruling opposes more than 20 years of rulings in the cases of “putative spouses.”

A putative spouse is one who mistakenly believes he or she is married, explained a New York Injury Lawyer. California courts have recognized the rights of such spouses for more than a century. State legislation affirmed those same rights in 1969.

In 1988, however, a Los Angeles appellate decision instituted the requirement that those who claimed putative rights had to show that their belief was “objectively reasonable” and not simply sincere. This particular case in 1988 rejected a woman’s alimony claim based on marrying a man in a private religious ceremony that did not comply with state law. Her purported husband, at the time of the marriage, assured her that it was valid, but he changed his mind when he wanted to marry another woman two years later. The court, in this case, ruled that the woman’s belief was “unreasonable” and thus, she was not entitled to marital rights like alimony.

In the recent case in San Jose, the court ruled that the decision the court made in 1988 was a distortion of the law that was meant to protect those who were taken advantage of. The court sided with this ‘wife.’ Her ironworker husband died in a workplace accident. She believed she had been married to him for four years before his tragic death. She wasn’t aware that her groom was still married to a previous wife when they conducted their wedding ceremony. His divorce became final 3 months later. The defendant claimed she had never read the divorce papers closely and thus never knew about the overlapping date.

When she tried to sue a contractor for negligence that resulted in wrongful death, a judge dismissed the suit, saying she wasn’t married and should have been aware of it. According to a NYC Personal Injury Lawyer, the San Jose Appeals Court, however, unanimously ruled that she was, indeed, entitled to a trial. The presiding judge wrote that the law asks whether someone “honestly and genuinely (believes) that the marriage is valid” and not whether that belief is reasonable or not. And since she did honestly believe, she deserves the rights of a spouse.

The woman’s attorney called the ruling “good for the institution of marriage.”

Continue reading "Appeals Court Reinstates a Wrongful Death Suit" »

A high school youth was struck and killed on a rainy night by a 20-year-old woman about a year ago. That woman plead guilty to a car accident involving wrongful death and was sentenced to one to five years in prison, the minimum mandatory sentence for a felony charge.

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

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

Had the defendant stopped at the scene, she would not have been charged with a crime. The investigation ended up determining that the defendant was not the cause of the accident, but that the teen walked into the road herself.

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

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

 In Brooklyn as well as Long Island these mistakes are often made.

The girl’s parents are trying to keep the memory of their daughter alive through scholarships and other means. The scholarship is to help student athletes and the Senior Class Trip Fund is to help students at her alma mater attend school functions. “Going positive is a fight, but it’s the only way to go,” the victim’s father states. “She was the kind of kid when she walked into a room, she put a smile on your face.”

Continue reading "Driver Sentenced to Prison for Fleeing the Scene of Accidental Run Over " »

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

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

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

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

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

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

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

A family has filed a $120-million personal injury lawsuit against an officer who allegedly killed a Pace University football player in the course of a late-night bar fight.

The 20-year-old student was allegedly shot by two officers as they removed a crowd of people, mostly Pace students, from a Mount Pleasant bar in the fall of 2010.

Prosecutors did not file charges against the two officers who shot the young man, claiming there wasn’t sufficient evidence to show they’d done anything wrong, sources told The public. The student’s family filed a wrongful-death lawsuit in federal court against the officer who fired the fatal shot.

The father of the student said the civil suit will hold the officer responsible for what occurred that night. Police Depts. in Staten Island and Westchester face the same problems from time to time.

“We said from the beginning we didn’t think this would be investigated in a way that was fair. It wasn’t prosecuted that way either,” The attorney for the officer had no immediate comment.
It is the hope of the student’s father the lawsuit will uncover new evidence, such as 911 audiotapes and surveillance footage of the area where the tragedy took place.
The officers fired shots into the victim’s car as he attempted to drive away from the crowd. They are white, while the man shot was black. The U.S. Department of Justice is investigating whether civil rights laws involving official misconduct were violated.

The municipality of Pleasantville is also a defendant in the lawsuit. The complaint says the employer of the officer did not properly punish him for his actions. The local police union has recently awarded the officer named in the lawsuit with its annual Officer of the Year Award.
Investigators could not reach Pleasantville officials for further comment.

No one can bring back something that has been lost, particularly the life of a loved one. That does not mean the cause of that loss should be able to escape justice. .

Continue reading "Family of Slain Man Sue Police for wrongful death" »

A Queenboro off-ramp has been a big factor, if not the ultimate cause, in the death of a second person in a two-week time period. A mother of two who crashed due to a dangerous off-ramp died in the hospital, according to sources.

The 40-year-old woman happens to be the second death caused by crashes from the off-ramp. The last fatal car accident in the exact same location occurred only a week before. In the previous accident, one with very similar circumstances, a car lost control coming off of the ramp and hit a pedestrian, killing that person instantly.

“They should definitely fix that bridge exit. I think she would be alive today if they would have fixed it,” a sister-in-law of the victim said. The victim was survived by a husband and two teenage boys.

She was a passenger in the Volkswagen driven by a 39-year-old man, when it lost control while leaving the bridge into Queens. The vehicle hit the guardrail near the end of the outer-lane exit ramp and slid across Queens Plaza South, slamming into two storefronts. The accident severed the left arm of the driver and the passenger suffered severe head wounds. When the victim died, her estranged husband was at her side.

Family and friends blame the accident on the ramp, part of a $44 million bridge-plaza reconstruction project. The city is already planning to reconstruct the ramp as part of improvements to Queens Plaza North and South. The process will take around three months.

In the meantime, traffic has been funneled into a single lane of Queens Plaza South, while workers attempt to make the off-ramps safer, New York Injury Attorneys have learned.

A 35-year-old driver suffered a similar accident coming off the same ramp not long ago, even to the point of severing his arm, as happened to a subsequent driver down the ramp. He was taken to Bellevue Hospital.

“I hear there’s been another crash,” he said to a New York Injury Attorney. “I’m in a lot of pain,” he added later.

Continue reading "Another Car Accident on the Queensboro Off-Ramp Takes a Life" »

The power of a large cruise ship was knocked out after one of the six generators caught fire a couple weekends ago. Nearly 750 passengers and crew members were forced to evacuate the vessel off the coast of Mexico. The 522 passengers and 226 crew members were evacuated by catamaran and brought to the port of Huatulco on Mexico’s West Coast.

A company executive was quoted as saying it was a “small, small fire.” The fire was quickly controlled and power was restored several hours later. No injuries were reported. However, many passengers upon reboarding were said to have spent the night on deck because of air conditioning malfunctions.

This accident happened just five months after another passenger ship was left dead in the water after a fire stalled it off the Mexican coast. In that mishap, more than 3,000 passengers were left adrift in the vessel.

This most recent incident involves a ship that has a capacity of over 1,000 passengers, but it only had 520 at the time of the accident, according to a New York Injury Lawyer.

Recently sold to a cuise line company, the nearly 40-year-old ship was on its second voyage. The new owners had recently renovated the ship to appeal to Mexican markets.

A full investigation is being led by the Secretariat of Communications and Transport. An onboard fire is a major safety concern although they do not happen with regularity. Almost all reported fires have limited scope. They are confined to specific areas and are quickly put out with no injury or death. There have been incidences however, of serious injury and even wrongful death due to onboard fire. Safety training, functioning fire safety equipment and the use of fire retardant materials are all efficient means of reducing fire on board a ship. Most cruise lines employ every measure possible to ensure a safe trip for their customers.

Continue reading "Fire Evacuates Cruise Ship " »

Carlos Castro, the Portuguese celebrity journalist who was found murdered and mutilated in his Times Square in New York City hotel room told friends that he was being threatened by his handsome companion just days before the murder, police said.

Castro, age 65, who was a prominent gay activist and a society columnist, was beaten to death, and had his scrotum severed with a broken wine bottle during a fight with his former lover. Renato Seabra, the 20-year old suspected murderer was discovered hours after the brawl at Roosevelt Hospital, sporting wounds that may have been from a suicide attempt. He is now in police custody at Bellevue Hospital psychiatric ward, according to a source.

Investigators have stated that they believe Seabra, who is a former Portuguese reality-show contestant, was stringing Castro along. They also believe he attacked Castro when he wouldn’t buy Seabra bigger gifts. Seabra had told friends back home that he wasn’t gay; he was merely using Castro as a route to fame and fortune.

Castro’s body was found when friends in Queens of the journalist became concerned and went to his hotel room to check on him. Reportedly, Castro had confided in his friends that he was scared to sleep in the hotel room with Seabra present, stated a reporter.

Seabra disappeared for a few hours after the murder, and turned up at a local hospital around 11 pm. The cab driver who had driven Seabra to the hospital saw news reports and dialed 911 after recognizing Seabra’s picture. A few minutes later, a nurse also contacted authorities after viewing his photo on the news. Charges like wrongful death are pending.

Continue reading "Murdered Portuguese Journalist Admitted His Lover Was Scaring Him" »

A man convicted of killing an 8-year old girl and seriously maiming her father died in prison recently, but monies from his estate may still be used to pay bodily injury, hospitalization costs and restitution to the family for harming the father and ending the life of the little girl. A NYC Injury Lawyer states that the man had just begun serving his 24-year prison sentence for recklessly killing the girl when a fellow inmate stabbed him to death with a homemade knife.
The little girl and her father were crossing the street in the crosswalk when the man hit both while riding his motorcycle. The little girl died as a result of her injuries while the father lost his leg. A new prosthetic leg may cost up to $500,000 along with hospital and physical rehabilitation costs. The man was tried and convicted of murder and sent to prison. Even though he is no longer alive, a judge has ruled that restitution must still be paid to the family using funds from the man's estate.
So far, little of an estate has been found. The man's mother recently filed paperwork to open a probate case to find financial documents and potential assets. The mother has also requested that she be given the motorcycle he was driving at the time of the accident so she can sell it. Any proceeds will mostly likely go to the little girl's family. It is unclear if the man's mother knew of any other assets the man had while he was alive.
The family of the little girl has filed a civil suit against the man's mother, her business and the city where the accident took place. It is unclear if the man's mother will become responsible for paying restitution on behalf of her deceased son.
Since the man's attorney had filed an appeal for conviction before the man's death and since that appeal had not been heard prior to death, according to the law, the man and his estate is released from paying any restitution. There are similar laws in Manhattan and Long Island.An NY Injury Lawyer agrees that the appeals court will have to decide whether to uphold the judge's order or not.

Continue reading "Deceased Man Still Responsible for Paying Restitution to Family Over Death of Little Girl" »

Back in June, a retired school teacher was making a left hand turn in her 1965 Thunderbird when she was broadsided by a police car that was in pursuit of a speeding vehicle. The 91 year old woman was killed in the crash. Her family has filed a wrongful death suit against the city and is seeking $534,000 in the claim, says a New York Injury Lawyer. 

The 28 year old officer who was driving the patrol car that killed the woman will not face criminal charges resulting from the accident, but that is not good enough for the family of the woman who was killed. 

According to reports, investigators determined that the woman driving the Thunderbird was solely at fault because she failed to yield to a police vehicle. Had the officer been blaring his lights and sirens, perhaps that determination would have merit. There are specific laws regarding this situation if it occurs in The Bronx or Brooklyn. But the fact is the officer had no lights or sirens on at the time of the accident, and so it is easily assumed that the woman would not realize that there was a patrol car headed towards her. 

The family alleges that the city failed to provide appropriate training to its officers in the case of high speed pursuits and it was this negligence that caused the accident that killed their loved one, claims the Injury Lawyer of New York. The officer involved in the crash has been back at work since January and says that he has no recollection of the accident at all. 

Negligence can lead to accidents and injuries. People’s lives can change as a result of lack of training and simple mistakes.

Continue reading "Family files wrongful death suit against city of Oak Ridge Oregon" »

Three Prince George’s County police officers shot and killed a man wielding an axe in front of a day care in the Glenn Dale area in what could be a case of wrongful death.
Just before 3 p.m. on a Thursday afternoon in early April 2011, police were forced to take action, after being called to the daycare to address reports of an armed man, a county police spokesman told NY Injury Lawyers.
The man in question was part of a child custody dispute and wanted to take his children out of the daycare, the police spokesman said. The daycare then called the mother of the children who instructed the caregiver not to give the children to their father.
The caregiver then called the police, the police spokesman tells. The man was no longer there by the time police arrived. But he returned a short time later and at least one officer was still on the scene.
The details of what occurred next are unclear and investigators have yet to ascertain all the details. According to the police spokesman, the man emerged from his vehicle with an axe in his hand and he approached three police officers.
“The officers felt threatened and they discharged their firearms,” the police spokesman said.
The man was shot at the site and pronounced dead on the scene before medical attention could arrive. No one else was hurt.
There are many things that are just beyond the control of anyone else, including the behavior of people who display behavior dangerous to others. Sometimes the authorities can take care of these people before they can cause real harm, but sometimes they do things that leave a lasting negative impression on others and they must be held accountable for what they’ve done. If it’s a criminal matter, it can be left to criminal courts, but everything else is under the umbrella of NY City Injury Lawyers, the people who make sure justice is done in civil cases in Nassau and Suffolk counties.

Continue reading "Police Shoot Man Outside of D.C. Area Daycare in Glendale" »