Articles Posted in Nassau

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The issue in this case is whether a defendant in a truck accident personal injury case can escape summary judgement after the death of the co-defendant whose actions were the direct cause of the plaintiff’s injuries.

Defendant Stern was an employee of defendant Schor & Rosner. On October 31, 1958, Stern was driving a truck owned by Schor & Rosner when he backed into another vehicle, causing that vehicle to collide with the vehicle occupied by plaintiff McCarthy. As a result, plaintiff McCarthy was injured. McCarthy filed a personal injury lawsuit against Schnor & Rosner, and now moves for summary judgement. The court will grant the motion for summary judgment if the plaintiff can show that there is no genuine dispute as to any material fact, and that he is entitled to judgment as a matter of law.

Defendant Stern, the driver of the truck, died before he was served with the summons and complaint. Defendant Schor & Rosner does not deny the allegations in the complaint that Stern was driving the truck that day. However, Schor & Rosner denies knowing any of the specifics of the accident because the driver is no longer available to testify. Schor & Rosner asked the court permission to not be held to as high a standard of proof for this case because they are unable to know the details that led up to the accident. The court points out that following the accident, the company asked for and obtained a statement from the now deceased driver in reference to the circumstances surrounding the accident. In addition, the court contends that the Schor & Rosner is in fact in possession of an affidavit made by the driver and a copy of the accident report. Thus, the defendant does know the details that led up to the accident.

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The issue in this medical malpractice claim based on the death of an infant during childbirth is whether the mother must suffer a physical injury in order to sustain a claim for emotional distress.

In March 1983, plaintiff was admitted to the labor and delivery unit of defendant hospital. During the course of her labor, plaintiff’s attending physician, defendant doctor, prescribed Pitocin to stimulate contractions. The Pitocin was administered intravenously to plaintiff and, as a result, her contractions increased in intensity and frequency. Plaintiff gave birth to a baby boy. The infant was in respiratory distress at birth and died approximately 6 1/2 hours later.

Plaintiff filed a medical malpractice lawsuit against the hospital, as well as against the doctor and nurse who attended to the plaintiff throughout her labor and delivery. The plaintiff seeks recovery for serious personal injuries, physical and emotional pain, disappointment, sadness, anxiety and psychological trauma.

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In Reece v. City of N.Y., the court considered the question of what the plaintiff must show to prove that a defendant had sufficient notice of a hazard to be liable for injuries caused by the presence of that hazard.

As Reece, the plaintiff, stepped on the curb at the corner of Water and Wall Streets in Manhattan, she slipped and fell on a blob of grease and suffered an injury. Alliance, a not-for-profit business improvement district organization, was responsible for cleaning the sidewalk at the location of the accident. Alliance contracted the cleaning to Onesource. Reece filed a personal injury claim against Alliance, Onesource, and the City of New York.

The defendants filed a motion for summary judgment asking that the complaint against all of them be dismissed. Under New York law, the burden is on the defendant to prove that they are entitled to summary judgement. This means that the defendant must make a prima facie showing that it did not cause the dangerous condition that led to the plaintiff’s injuries, and that it did not have actual or constructive knowledge of the dangerous condition. If the defendant does not make a prima facie showing then the court will deny its motion for summary judgement dismal of the case.

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In a slip and fall case, the defendant grocery store moves for summary dismissal, arguing that the plaintiff does not have evidence that its negligent created the hazard that led to the plaintiff’s fall, or had real or constructive notice of it.

Plaintiff Richardson was shopping at Waldbaum’s grocery store. Defendant Great Atlantic & Pacific Tea Company is the parent company. As she walked through the produce section, plaintiff slipped and fell due to a bunched up floor mat and area that was wet due to the vegetable misting machine which sprayed water into the aisle- beyond the area where there were mats and carpets placed to prevent customers from slipping. Based on the injuries suffered when she slipped and fell, the plaintiff filed a personal injury lawsuit against the defendant. Defendant filed a motion for summary judgement dismissing the case.

Under New York law, the defendant will be entitled to summary judgement if it can make a prima facie showing that it is entitled to it. This means that the defendant must produce sufficient evidence that there are no material issues of fact. In other words, the defendant must show that the plaintiff does not have a case. If the defendant makes a prima facie showing, then the burden shifts to the plaintiff. The plaintiff must show that there is an issue of material fact that would preclude summary judgement.

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The issues before the court in Stuart v. Health & Hosps Corp. are whether a plaintiff is permitted to amend her complaint based on a change in the law that occurred after she initially filed her claim and whether the new law should be applied retroactively.

In 2000, plaintiff Ashmeade filed a medical malpractice claim on behalf of her deceased son who was born with brain damage and cerebral palsy. Plaintiff claims that the injuries suffered by her son, who was born in 1996, were due to the negligent care by the defendant. In the complaint there were two causes of action. First, on behalf of her son, the plaintiff sought recovery for pain and suffering. The second cause of action was based upon a lack of informed consent.

At the time that the plaintiff file her claim, the law did not give a mother a cause of action for emotional distress in cases where her baby was stillborn or was severely impaired at birth. However, in 2004 the New York Court of Appeals changed the law when it decided Broadnax v. Gonzalez,  777 N.Y.S.2d 416 (2004). The court held that if medical negligence resulted in a miscarriage or stillbirth, then there was also a violation of duty of care to the mother. As a result, she would be entitled to damages for emotional distress. The same year, the court decided Sheppard-Mobley v King (10 AD3d 70 [2004]). This case focused on a child who was born severely impaired. The court held that even if the mother did not suffer a physical injury, if the child is born severely impaired, the mom would be entitled to damages for emotional harm because there would have been a violation of duty of care owed to the mother. Because of these two rulings, the plaintiff sought to amend the complaint filed on behalf of her son to include a claim for her own emotional distress. The defendant opposes the plaintiff’s motion.

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In a medical malpractice claim, the issue before the court is whether the plaintiff had a reasonable excuse for filing a late notice of claim. Under New York law, before a plaintiff can bring a lawsuit against a public or government entity, the plaintiff must first file a notice of claim. The purpose of a notice of claim is to give the government entity advance warning that a lawsuit is pending that involves a claim for damages. It allows the government the opportunity to investigate the incident and the merits of the claim. In the Velazquez case, the defendants are the City of New York Health and Hospitals Corporation, the public entity that operates Jacobi Medical Center. The plaintiff was required to serve the notice within 90 days of the incident that led to the medical malpractice claim.

The infant plaintiff was born at Jacobi Medical Center in March 1998. At birth he weighed one pound, nine ounces, and remained in the neonatal intensive care unit until July 6, 1998. At age 4 he was diagnosed with spastic cerebral palsy and asthma. However, his parents did not file a notice of claim on his behalf until October 11, 2006– 8 years later. The plaintiff claimed that due to the defendant’s medical malpractice and failure to obtain informed consent, he was injured.

Clearly the plaintiff did not serve the notice of claim within 90 days of his birth in 1998. The court must now determine if, despite filing the notice of claim 8 years after the incident, the plaintiff filed the notice timely. The plaintiff filed a motion requesting the court to issue an order deeming the notice of claim served to be timely or, in the alternative, granting leave to serve a late notice of claim. New York law does allow exceptions to the 90-day rule statutory timeframe. In making its decision, the court must look at 3 factors: 1). whether the plaintiff provided a reasonable excuse for the late serving of the notice of claim; 2). whether the municipality had actual notice of the essential facts of the claim within 90-days after the claim arose; and 3) whether the delay would substantially prejudice the municipality in its defense.

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In a medical malpractice claim, both the plaintiff and the defendants moved for a Frye hearing regarding the anticipated testimony of the expert witnesses. In the alternative, the defendants ask the court to dismiss the plaintiff’s action, and the plaintiffs ask the court to preclude the testimony of the defendants’ experts.

Established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the purpose of a Frye hearing is to determine the admissibility of scientific evidence. Opponents of scientific evidence that the opposing party wants to submit typically object to it as unsupported by published articles or prevailing medical or scientific thought. During a Frye hearing it is up to the court to determine if the testimony was developed based on accepted on scientific methods.

In Fernandez v. St. John’s Queens Hospital, the infant plaintiff was born prematurely on April 29, 1991 at St. John’s Hospital in Queens. She was discharged on July 10, 1991. After discharge, defendant Pavlakis, a pediatric neurologist and defendant Miguez, a pediatrician, began to treat her. In October 1991, Pavlakis diagnosed the plaintiff with progressive obstructive hydrocephalus and placed a shunt to remove fluid around the brain. It was determined that the plaintiff had suffered brain damage. She has spastic quadriplegia, severe mental retardation, and suffers from seizures. She was admitted to New York Foundling Hospital.

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The claimant in this case is Alice D. The defendant of the case is William M. The case is being heard in the New York County Harlem Small Claims Court. Both the claimant and the defendant are representing themselves in the case. The Honorable David B. Saxe is overseeing the case.

Case Introduction

This case revolves around the issue of a man and a woman having sexual intercourse that resulted in a pregnancy. A New York Injury Lawyer told the man told the woman that he was sterile at the time they had sexual relations. She is suing him for the cost of the abortion and related expenses as a result of the pregnancy.

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This case is being heard in the Supreme Court of the State of New York in New York County. The case involves the matter of an Application of MVAIC to vacate an Arbitration Award. MVAIC is the petitioner of the case. The respondents in the case are Geico Insurance Company, New York City East-West Acupuncture, and PC A/A/O Chun Hong Li. The Judge overseeing the case is Joan B. Lobis.

Case

The petitioner, MVAIC or Motor Vehicle Accident Indemnification Corporation, moves for an order to vacate an order that was awarded by the Lower Arbitrator and affirmed by the Master Arbitrator. The petitioner seeks an entry of judgment on their behalf that dismisses the case with prejudice. The respondents are currently in default as they have not submitted any opposition papers in this case.

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A mother and her child filed a medical malpracticelegal action against a hospital and three doctors. The mother allege that the hospital and the doctors basically failed to timely schedule a cesarean section as well as her delivery to her infant which was in double footling breech presentation.

A double footling presentation is a condition whereby the fetus’ both feet are the presenting part. As a result, it caused the infant to suffer a spinal injury during delivery, produce bleeding and swelling, and ultimately segmental spinal cord atrophy resulting paralysis and severe low muscle tone to the lower extremities, hydronephrosis, neurogenic bladder transverse myelopathy, and a marked spinal kyphosis. A neurogenic bladder transverse myelopathy is a condition indicating that there is something wrong with the spine. A New York Injury Lawyer said the mother claims that her infant, now four years old, was unable to walk, suffers from frequent urinary tract infections, requires continuous antibiotic therapy and urinary catherization. The mother further states that all of her infant’s injuries are permanent.

The mother alleges that the hospital and the three doctors failed to perform a cesarean section when an external version was unsuccessful. Bases on records, an external version is known as a procedure used to manually turn a fetus from a breech position into a vertex position which is a normal presentation wherein the fetal head is the presenting part before labor begins. It is usually done to make vaginal delivery possible. The mother claims that the hospital and the doctors were negligent in performing the external version. She further claims that they failed to perform pelvimetry studies. A pelvimetry refers to the measurement of the diameters of the pelvis and it also recognizes a footling breech caused by a frank breech to become a footling breech. A Nassau County Personal Injury Lawyer said a frank breech has been described as the position of the fetus whereby the fetus’ buttocks are present at the maternal pelvic inlet, legs are straight up in front of the body, and feet are at the shoulders. Additional, she claims that they failed to perform vaginal exams at 36 weeks.

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