Car Accidents

Published on: July 19, 2012

Court denies defendant’s motion for summary judgment in a medical malpractice birth injury case – McLaughlin v. Royek, 2007 NY Slip Op 32242(U) (N.Y. Sup. Ct. 7/17/2007)

by Stephen Bilkis

In this birth injury medical malpractice case, the defendant moves for summary judgment, arguing that he did not deviate from accepted medical standards in his care and treatment of a pregnant woman by delaying performing a cesarean section delivery despite evidence that the baby was in distress.

Plaintiff McLaughlin filed a medical malpractice lawsuit on behalf of her infant son who was born in 1998 prematurely with an extremely low birth weight. The plaintiff contends that as a result of the negligent care of the defendants, her son suffered a variety of serious, permanent birth injuries including brain damage; status encephalopathy; fetal hypoxia; cerebral palsy; exacerbation of injuries related to prematurity; developmental delays; cognitive and speech deficits; and the need for braces on his extremities.

On September 5, 1998, the plaintiff, who was 23 weeks pregnant, was admitted to St. Charles Hospital with swelling of the legs and decreased fetal movement. St. Charles Hospital (a non-defendant) transferred the plaintiff to Stony Brook Hospital so that she would have access to its neonatal intensive care unit (NICU) in case the baby had to be delivered prematurely.

Published on: July 18, 2012

Plaintiff fails to rebut defendant’s prima facie showing that it did not cause or know about the hazard that led to plaintiff’s injury – Reece v. City of N.Y., 2010 NY Slip Op 31655 (N.Y. Sup. Ct., 2010)

by Stephen Bilkis

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.

Published on: July 16, 2012

NY Appellate Court Decides if Hazardous Condition Present with Slip and Fall

by Stephen Bilkis

Anyone who has been injured in a slip and fallcase on another person’s property is required to demonstrate why they believe that the other person is liable for their injuries in order to win any type of award for damages resulting from that fall. That means that just because a person falls and gets hurt on another person’s property, that person may not carry any liability at all if the victim cannot show that the owner of the property knew, or should have known, of the hazardous situation. That owner is then responsible for resolving the dangerous situation before anyone is injured. If the owner has knowledge of the situation and then intentionally does not take steps to correct the problem, they may have liability associated to any injury that occurs as a result of their negligence.

A New York Injury Lawyer said in civil disputes, such as a slip and fall lawsuit, the burden of proof to establish negligence is on the victim and not the property owner. The person who files that claim must be able to show that the property owner was notified at one time or another that there was a hazardous situation on their property that could result in an injury to a person. The victim must then show that the property owner took no steps to correct the problem which results in a liability for them. Only then can the victim be awarded any type of damages related to the incident.

This type of review is necessary because a property owner should not be liable for an injury that results on their property that is not their fault. A Long Island Personal Injury Lawyer said just because a person trips and falls and injures themselves while they are on the property of another, that property owner is not responsible unless they created the hazardous situation. In one case, a person was traversing a stairway in a building and slipped and fell down the stairs. They filed a lawsuit against the property owner stating that the stairs had a spill on them that should have been cleaned up before someone was hurt. The victim did not establish how the property owner should have been made aware of the spill and had it cleaned up before the victim fell on the stairs.

Published on: July 15, 2012

Plaintiff seeks to use the Noseworthy doctrine in order to lower his burden of proof in a slip and fall case – Dolnick v. Borders Group, Inc., 2009 NY Slip Op 30538(U) (N.Y. Sup. Ct. 3/9/2009)

by Stephen Bilkis

Plaintiff Dolnick filed a personal injury lawsuit against defendant bookstore Borders Group for an injury suffered by his father at the Borders location in Columbus Circle. The defendant moved for summary judgement to dismiss the case because the victim had passed away, and the plaintiff had not witnessed the accident. The court had to determine if the defendant met its burden of showing that the plaintiff’s claim has no merit.

In May 2004, plaintiff’s father fell in the defendant’s bookstore, and as a result suffered an open ankle fracture. The following year, in March 2005, the injured victim died from an unrelated cause. The plaintiff, who is the administrator of the estate of his deceased father, initiated the personal injury lawsuit against defendant Borders after his father’s death. The defendant filed a motion for summary judgement dismissing the claim.

When a defendant files a motion for summary judgement dismissing a claim, the defendant has the burden of presenting a prima facie case that it did not cause the hazard that resulted in the victim’s injury and that it did not have real or constructive knowledge of the hazardous condition. Once the defendant establishes a prima facie case, the burden shifts to the plaintiff.

Published on: July 15, 2012

Plaintiff seeks compensation from hospital because the hospital failed to take reasonable steps to notify her of the death of her brother – Coto v. Mary Immaculate Hosp., 10515 2006 (N.Y. Misc. 2009)

by Stephen Bilkis

In this case the court considers whether a hospital’s failure to notify the next of kin can be the basis for a personal injury lawsuit for emotional distress. Under New York law a decedent’s next-of-kin has the right to “immediate” possession of the decedent’s body. This means that a hospital, for example, must make reasonable efforts to notify the next of kin. If someone interferes with the next of kin’s right, then he or she would be entitled to damages from that person or entity that interfered because of the mental suffering caused by the improper handling of the decedent’s remains.

In early January in 2004, the New York City Fire Department EMS found Coto, the brother of the plaintiff. He was rushed to defendant Mary Immaculate Hospital. When he arrived, he was unable to give hospital staff any information about his next of kin because he was unresponsive. The next day Coto died. Hospital staff went through Coto’s possessions but did not find anything other than his clothing and a watch. They were not immediately able to determine his name or any other information. Because the hospital was not able to determine the identity of Coto and was unable to notify his next of kin, a nurse from the hospital notified the police department to determine and contact the next of kin.

Meanwhile, following protocol, because Coto died within a day of arriving at the hospital, the hospital notified the medical examiner’s office. Coto was transferred to the medical examiner’s office, and the hospital advised the medical examiner that it was not able to determine Coto’s identify or notify his next of kin.

Published on: July 14, 2012

Defendants request summary judgement in a grocery store slip and fall case- Richards v. Great Atl. & Pac. Tea Co., 2010 NY Slip Op 33392 (N.Y. Sup. Ct., 2010)

by Stephen Bilkis

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.

Published on: July 11, 2012

Defendant Awarded Partial Summary Judgement in Medical Malpractice Action

by Stephen Bilkis

This case is being heard in the Bronx County Supreme Court in the state of New York. The case involves the deceased infant, Kayla Kesse Madison Charles. The plaintiffs are the administrix of the estate of the deceased infant, Dionne Charles and Dionne Charles on her own. The defendants in the case are Doctor Chaisurat Suvannavejh, Doctor, Fergal D. Malone, Doctor Michael J. Orfino, Elizabeth Riley, R.N., Susan Zucchero, R.N., and the Lawrence Hospital Center.

Case Background

The plaintiff on behalf of herself and her deceased daughter is suing the defendants for medical malpractice that resulted in the wrongful death of her daughter. A New York Injury Lawyer said the defendants of the case, Suvannavejh, Zucchero, and the Lawrence Hospital Center all separately move for a summary judgment that dismissed the claims made by the mother in regard to emotional distress, and loss of comfort and affection. Additionally, the defendant Suvannavejh seeks for the claim made by the mother in regard to lost support, services, and protection be dismissed.

Published on: July 9, 2012

Respondents Claim Petitioner in Violation of Public Health Laws

by Stephen Bilkis

The petitioner for this case is Lena Bagels, Inc. The respondent of the case is The City of New York and the New York City Department of Consumer Affairs. The case is being heard in the New York Supreme Court. The judge overseeing the case is Philip G. Minardo.

Case

Lena Bagels operates a corporation and the main place where business occurs is located on Richmond Avenue in Staten Island, New York. The company is authorized by the state to transact business. Lena Bagels was incorporated in 2001. A New York Injury Lawyer said the petitioner, Lena Bagels has been found guilty of selling tobacco products to a minor. The petitioner states that the fine of $3500 is void and requests the renewal of their application for their tobacco license. The petitioner is seeking to annul the recommendation made by Judge Mitchell B. Nisonoff.

Published on: July 8, 2012

Court Maintains Complaint if Friviolous and Lacks Standing

by Stephen Bilkis

This is an interesting case being heard in the Kings County Supreme Court that involves the plaintiff, Christopher-Earl Strunk and a number of defendants. Among the defendants for the case are President Barack Obama, along with Vice President Joe Biden, and Senator John McCain. Additional defendants include the Speaker of the House John Boehner, Representative Nancy Pelosi, and Governor Andrew Cuomo, Comptroller Thomas Di Napoli, Attorney General Eric Schneiderman, and billionaires Penny Pritzker, Peter Petersen, and George Soros, as well as six political parties from the state of New York.

Complaint

The plaintiff, Strunk, offers a 45 page document that delivers a number of variations on “birther” cases. The central allegation being made by the plaintiff is that the defendants Senator John McCain and President Barack Obama are not citizens naturally born in the United States of America according to his interpretation of clause 5 of the United States Constitution. A New York Injury Lawyer said the plaintiff declares that the two are involved with the other defendants in a conspiracy to defraud the people of the United States on behalf of the Roman Catholic Church. He offers a lengthy diatribe against all of the defendants as well as the Roman Catholic Church, the Vatican, and the Jesuit Order or Society of Jesus.

Published on: July 7, 2012

Plaintiff in medical malpractice actions seeks to amend complaint based on new law – Stuart v. Health & Hosps Corp., 7 Misc.3d 225 (N.Y. Sup. Ct., 2005)

by Stephen Bilkis

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.