Nassau

Published on: March 25, 2012

Plaintiff’s Request for Leave to Follow Late Claim is Denied by New York Appellate Court

by Stephen Bilkis

A mother and her son claim for medical malpractice against a hospital. The action arises when the mother delivered her son and alleges that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of her labor and delivery. Even if the infant was transferred to another hospital for almost two weeks, he was then transferred back to the opponents’ hospital where he remained. Subsequently, the newborn was treated at the opponents’ hospital. It is further alleged that the newborn suffers from brain injury and severe developmental delays.

At the beginning, the court lacks of authority to grant leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the action.

In determining whether to allow a late filing, a New York Injury Lawyer said the court must consider various factors which includes whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or reasonable time thereafter, and whether the delay would considerably prejudice the public corporation in defending on the merits.

Published on: March 23, 2012

Plaintiff Appeals Dismissal for Birth Injury Claim in NY Appellate Court

by Stephen Bilkis

A thirty-seven year old woman consulted an obstetrician/ gynecologist. She had a thyroid condition and had given birth to a deformed child. She specifically went to this obstetrician for him to inform and advise her on the risk of having another deformed child if she were to get pregnant again. Knowing all this background information, the obstetrician did not inform the woman about amniocentesis, a test which draws amniotic fluid from the mother and testing it for markers for genetic or chromosomal abnormality. The doctors did not give her any advice whatsoever as to how to determine if the child she was carrying would also be deformed.

According to a New York Injury Lawyer, as a result of the lack of information, the woman continued her pregnancy and eventually gave birth to a child with Down’s syndrome. She sued the doctors for negligence, medical malpractice, lack of informed consent, breach of contract and wrongful life. The woman claimed damages for her pain and suffering at having delivered an impaired child; she claimed damages for the extraordinary cost of caring and supporting the impaired child. The husband also included a cause of action for loss of income as a result of the child’s deformity, loss of consortium and for his own pain and anguish. The woman filed a separate cause of action on behalf of their child, seeking damages for his own pain and suffering for the burden of living life impaired.

The obstetrician filed a motion for summary judgment asking for the dismissal of all the causes of action and alleging that there are no material issues of fact that need to be tried. A Nassau County Personal Injury Lawyer said the Court granted the motion and dismissed the wife’s cause of action for her pain and suffering; the cause of action for the husband’s pain and suffering and loss of income; the cause of action for lack of informed consent and for breach of contract; the cause of action for the wife’s development of breast cancer due to the stress; and the claim for punitive damages in behalf of the child.

Published on: March 23, 2012

New York Appellate Court Discusses Concept of “Wrongful Conception” in Birth Injury Case

by Stephen Bilkis

A thirty-seven year old woman got pregnant in 1974. When she and her husband learned that she was pregnant, they engaged obstetrical specialists. They treated her and cared for her during the rest of her pregnancy. These specialists also delivered her baby on May 10, 1975.

The baby girl was born with Down’s syndrome. The parents brought suit against the specialists for negligence and for medical malpracticeclaiming that they should have known that women over thirty-five years old (such as the pregnant lady here) have a much higher risk of giving birth to infants with Down’s syndrome. As specialists, they should have taken care of the pregnant lady and advised her to undergo amniocentesis. This is a test where a needle is inserted through the mother’s navel and a sample of the amniotic fluid is drawn and tested for its chemical and DNA properties. A scrutiny of the fluid can detect if the baby has chromosomal defects that would signal that the baby has Down’s syndrome.

A New York Injury Lawyer said the parents sued the obstetrical specialists for negligence and medical practice in behalf of their child. They also included in their complaint a cause of action for actual damages. They are asking that the doctors pay for what they may need to spend for the institutional care of their child. They also included in their complaint a cause of action for damages to the parents. They contend that the obstetricians’ negligence and medical malpractice caused them emotional harm when their child was born with Down’s syndrome.

Published on: March 17, 2012

Plaintiff Injured in Crane Collapse, New York Appellate Court Rules on Legal Fee Dispute

by Stephen Bilkis

On March 15, 2008, a couple of Greek descent was sitting in their apartment on East 50th Street when a crane collapsed from the roof of a nearby construction site of a high rise building. The crane fell on the apartment of the Greek couple. The woman ran out of her apartment thinking that there was a terrorist attack. She fell down the stairs and twisted her ankle.

A New York Injury Lawyer said the Greek woman retained the services of a lady lawyer for her personal injury case. After the investigation of the crane collapse, the City of New York returned the premises to the landlord for repairs. The landlord failed and refused to repair the Greek couple’s apartment. Instead, he threatened to simply end their lease. The couple had brought a case against the landlord to force him to repair and restore them to their apartment. The landlord was negotiating the buyout of the couple so that they would just end their lease and move out. A Nassau County Personal Injury Lawyer said the husband and the wife retained the services of a male lawyer to represent them in the buy-out case with the landlord. The male lawyer sent the Greek couple a retainer letter that stated that he was representing the couple only in the buy-out case but not in the personal injury case as this was being handled by another lawyer. They agreed to pay him 1/3 of any money they will be awarded by the court or paid through a settlement of their claims.

While the lady lawyer was working on the personal injury case of the wife, another lawyer, a male, was working on the buy-out case with the landlord. Eight months after the accident, the lady lawyer filed the personal injury suit. Depositions were taken already during discovery at pre-trial.

Published on: March 10, 2012

New York Appellate Court Discusses Liability in Products Liability Case

by Stephen Bilkis

On 16 April 1973 at approximately 3:30 in the afternoon, natural gas which had escaped from a leak and accumulated in the basement of a building (premises liability) and exploded. The explosion and resulting fire killed someone, seriously injured three people, destroyed a building and caused extensive damage to other buildings of the apartment complex and to personal property of several of the tenants.

Four out of a total of 21 lawsuits commenced, are the subject of this appeal: wrongful death action; two personal injury actions; and the property damage.

In the property damage action, a New York Injury Lawyer said the complaint alleged, inter alia, claims based on negligence and strict products liability against the concerns responsible for the manufacture, assembly and installation of the “gas train”, i. e., the various pipes, connections and devices located in the gas equipment room of the building through which the high pressure gas coming from the outside must pass for delivery at a properly reduced low pressure to be used by the tenants in the several garden apartment structures. Of the five defendants in the property damage action, four were manufacturers of components of the gas train – manufacturer of the filters for the removal of dirt and dust from the incoming gas; the manufacturer of the regulator which reduced the high pressure gas to the proper low pressure for use by the tenants; manufacturer of the valve to relieve the excess pressure and the meter to measure the amount of gas used; and, the fabricator and supplier of the gaskets used in the filters. The fifth defendant, purchased the various components and assembled and installed the gas train.

Published on: February 24, 2012

New York Appellate Court Decides Case Involving Injuries of a Child Due to Domestic Violence

by Stephen Bilkis

A father asked a court to vacate an order of protection issued against the father and an order granting sole legal and physical custody of the father’s child to the child’s grandmother. According to the records of the case, the child’s mother left the child when the child was barely a month old. Until the time the orders were issued, the mother’s whereabouts are unknown. The child was left at the care of the father and the child’s paternal grandmother.

According to a New York Injury Lawyer, an action for child custody and for acts of domestic violence was filed by the child’s grandmother asking the court to grant her custody of the child. The request was granted, after the court considered credible testimony and evidence presented by the grandmother, as well as the father’s sister. According to their testimonies, the father is an alcoholic who drinks alcohol excessively from early morning through each evening. The witnesses also said the father is aggressive and threatening toward the child. The testimony also pointed out an instance when the father, who has already consumed significant amounts of alcohol, drove a vehicle with the child. The witnesses said the father is unable to properly care for the child with respect to food and clothing and housing due to his excessive and persistent use of alcohol.

During the inquest proceedings of the case, the law guardian for the child appeared but the father failed to make an appearance nor made any explanation with the court as to why he failed to appear. The father’s counsel, however, asked for the matter to be adjourned because his client could not attend the proceeding because he had been scheduled to start an outpatient program for alcoholic abuse rehabilitation at a hospital. The request for adjournment was denied at the objection of the grandmother and the child’s law guardian. They both asserted that further adjournment of the case is prejudicial and is detrimental to the child.

Published on: February 21, 2012

New York Appellate Court Rules on Trip and Fall Case on Sidewalk, Denies Defendant’s Summary Judgment Motion

by Stephen Bilkis

The defendant, also the third party plaintiff in this case, has filed for a motion for summary judgment and to dismiss the third party complaint against another third party defendant. The defendant included in its motion also asserts that the insurance company must pay the housing company as part of the terms of liability.

According to a New York Injury Lawyer, the housing company has taken note of this motion and has moved for a summary judgment that would dismiss the allegations made against it. The insurance company has also filed a motion to dismiss the complaint of the third party. The main plaintiff in this case filed a motion for the court to provide her with partial summary judgment against the housing company.

According to the information presented, the plaintiff filed a complaint for sustaining personal injuries due to a trip and fall accident. The accident happed on the sidewalk just outside the property of the defendant. The plaintiff has alleged that she tripped and fell on the uneven sidewalk. The housing company was said to be the building owner while the restaurant belonged to a tenant including the space that leads to the sidewalk on the accident site.

Published on: February 18, 2012

Defendant Wins Summary Judgment in New York Appellate Court for Slip and Fall Case

by Stephen Bilkis

At around 7:00 to 8:00 pm on September 11, 2002, a lady was walking on the sidewalk of Second Avenue to meet a friend at a yogurt shop. When she reached the part of the sidewalk halfway between East 46th and East 47th Streets, her foot turned and twisted to the left and then to the right. She lost her footing and her balance and she fell on the sidewalk.

That part of the sidewalk where she fell abuts a building named after a former Secretary-General of the United Nations Organization. The building was managed by a subsidiary of the corporation that owned the building. The woman sued the City of New York, the building owner and the building manager.

According to a New York Injury Lawyer, the City of New York, the building owner and the building manager all filed motions for summary judgment asking that the complaint be dismissed. The building owner and manager argued that the complaint should be dismissed because the lady could not say what caused her to trip and fall; that it had no duty to maintain the sidewalk as it derived no special use of the sidewalk; it did not create the defect of dangerous condition on the sidewalk. The City of New York argued that the defect that the lady alleged to have caused her accident is too trivial to be actionable; and even if it were not too trivial, the City never caused or created the defect and the defect was not proven to be the immediate cause of her trip and fall.

Published on: February 17, 2012

New York Appellate Court Rules on Trip and Fall on Airplane

by Stephen Bilkis

The plaintiff has filed a complaint against the defendant for sustaining personal injury due to a trip and fallaccident. The plaintiff was boarding a plane at the airport when she suddenly tripped and fell to the ground. The plaintiff cited the slippery and defective condition of the floor of the airplane as the cause of her fall. She asserted that such defective condition has been existing inside the plane.

According to her testimony, the accident happened near the entrance of the plane. The weather on the day of the accident was described as a little snowy. There was also a little rain during that time. The plaintiff recalled that her name was called while she was still inside the bathroom. She noted that her flight was earlier than the expected time. The plaintiff was actually the last person to go aboard.

The plaintiff further described the incident. While walking towards the plane, she was aware of her steps and looked at the metal steps and the plane. A NYC Personal Injury Lawyer said she plaintiff saw the flight attendant and the next thing she knew, she tripped and fell. She added that she was walking towards the plane in her usual normal pace. She was looking at the attendant when she tripped. The plaintiff was not using her phone nor looked at anything that will distract her from going to her destination.

Published on: February 9, 2012

High School Student Injured in Hit-and-Run Accident

by Stephen Bilkis

An 18-year old high school student was struck by a car while walking in a middle school crosswalk. The driver fled the scene after the incident, reported a New York Injury Lawyer. The girl was not seriously injured, but was taken to a local hospital for the treatment of minor injuries. Witnesses say the car, driven by an older woman, drove off after hitting the girl. Police are currently looking for vehicle and the driver.

Charges may be pending for the driver who struck the student and left the scene. Police are asking those in the community with any information to step forward. The woman was driving red sedan. She had a dog with her in the passenger seat. The woman should have stopped after realizing she struck the girl and waited for police.

The woman was leaving the middle school parking lot when the accident occurred. Instead of yielding to make sure the crosswalk was empty, the woman turned her vehicle and hit the girl. Luckily, the girl was not seriously hurt. Even when walking in crosswalks pedestrians need to be cautious as some drivers do not pay attention when making turns out of driveways.