Car Accidents

Published on: July 27, 2012

Defendants request summary judgement in a case involving injuries from exposure to lead paint – Scott v. City of New York, 2007 NY Slip Op 33484(U) (N.Y. Sup. Ct. 9/27/2007)

by Stephen Bilkis

Plaintiffs include several members of the Scott family, including 19 children, who resided at the Brooklyn Arms Hotel which is owned by defendant Fields. The Hotel was leased to Merco. In 1981 the plaintiffs were homeless. The City of New York placed them in the hotel. The plaintiffs claim that from the years 1981 through 1984, several of the Scott children were exposed to lead paint while at the hotel. The plaintiffs also claim that while they lived at the hotel there were no attempts made to correct the hazardous lead paint condition. The plaintiffs filed a lawsuit against the plaintiffs based on negligence, recklessness, and gross negligence. In addition, the plaintiffs allege that the Housing and Maintenance Code for New York City was violated.

The defendants filed a motion for summary judgement dismissing the case. The purpose of a summary judgement motion is to ask the court to dismiss the case without the case having to go to trial. The court will grant a motion for summary dismissal of a case if the defendant produces evidence that demonstrate that there are no genuine issues of material fact. This means that based on the undisputed facts, the law requires that the defendant wins.

In support of their summary judgement motion, the defendants make arguments related to not being aware of the problem, not having regular access to the premises, not having control over the premises, and not being aware that children lived there. The court determined that some of the defendants’ arguments are specious. Based on the evidence presented at the hearing on the motion, the court concluded that there were indeed questions of fact. For example, the court found that there were questions of fact with regard to whether the defendants were aware that paint was peeling the Hotel, whether they were aware that children under the age of 7 lived in the Hotel, and who had complete and exclusive control over the Hotel. Thus, on the issue of negligence, the court denied the defendants’ motion for summary judgement. However, the court did grant the defendants’ summary judgement motion to the extent that the plaintiffs will not be allowed to recover claims related to the breach of warranty of habitability or their claims of nuisance.

Published on: July 24, 2012

Mother sues doctors for failing to order a c-section delivery- Mitchell v. Lograno (N.Y. Sup. Ct., 2011)

by Stephen Bilkis

When a doctor fails to perform a c-section delivery when warranted, there is a risk that the mother or baby will suffer serious birth injuries, including permanent injuries to the brain. Plaintiff Mitchell filed a medical malpractice lawsuit on behalf of her infant son against defendants Lograno, Strittmatter, and the hospital. Mitchell argues that because the doctors did not perform a c-section delivery, there were negligent, and as a result, her son suffered permanent brain injuries.

Two days prior to her expected delivery date, Mitchell was given a test that showed that her baby’s heartbeat was non-reactive. Mitchell was transferred to a hospital for additional tests and monitoring. Defendant Lograno, Michell’s doctor, discussed options with her and decided to induce a vaginal delivery using Pitocin. Before Lograno left for the evening, he discussed Mitchell’s case with Strittmatter. It was agreed that the baby would be delivered via vaginal delivery. Strittmatter performed the delivery. The baby suffered a number of injuries during the delivery, including brain damage. Mitchell filed a personal injury lawsuit against Lograno, Strittmatter, and the hospital, arguing that as a result of not performing a c-section, her baby suffered serious injuries including a brain damage. Lograno and Strittmatter moved for summary judgement dismissal of the case.

A motion for summary judgment dismal seeks a judgement on all or part of the case in a summary fashion, without the issue or case being fully litigated at trial. In this case the defendants are asking the judge to decide the case in their favor, immediately, without a trial. The legal standard for summary dismissal is that the defendants must show that there are “no genuine issues of material fact” and that they are entitled to judgment as a matter of law. In other words, the defendant must show that based on undisputed facts presented, the defendant must win because the law supports the defendants’ position.

Published on: July 23, 2012

Did an airline’s negligence result in a dangerous condition on a jet bridge? – Guntur v. Jetblue Airways Corp., 2011 NY Slip Op 32615 (N.Y. Sup. Ct., 2011)

by Stephen Bilkis

In this slip and fall case, the issue is whether an airline caused the hazardous condition or had notice of the hazardous condition that led to the plaintiff’s injuries.

Plaintiff Guntur was scheduled to fly from Logan Airport in Boston to New York. While she was in the restroom, her name was called for boarding. She hurried back to the gate and down the jet bridge as she did not want to miss the flight. She was the last to board the plane. As she neared the portion of the jet bridge that connected with the door of the airplane, Guntur slipped and fell. She immediately looked at the area where she fell and noticed that there was icy, wet dirt. Guntur filed a lawsuit against Jetblue to recover damages for the injuries she suffered due to her fall that was caused by Jetblue’s negligence.

The Airport Operations Lead Officer for the airline testified that the airplane was regularly cleaned. On icy or rainy days, the airplane was cleaned not only by the cleaning crew but the flight attendants check the jet bridge for any water or snow accumulation. The employees have a broom and mop handy. They also have a carpet that they lay so that the passengers can walk on a dry surface. The flight attendants are also trained to always check the entrance of the plane. They are trained to use handy paper towels to pat the area dry so that the passengers will walk onto the plane on a dry surface.

Published on: July 22, 2012

Court determines liability of pet store owner in dog bite case – D.C. v. Petco Animal Supplies Stores, Inc., 2007 NY Slip Op 51413(U) (N.Y. Sup. Ct. 7/16/2007)

by Stephen Bilkis

In D.C. v. Petco Animal Supplies Stores, the court determines the liability of a pet store owner in a case where a customer’s pet dog bites a child in the store. This case may impact not only pet stores where customer pets are routinely permitted, but other types of stores and venues where there is a trend toward becoming more “pet-friendly.”

On January 23, 2006, plaintiff Christian took her two children to defendant pet store, Petco, in order to buy supplies. Defendant Coughlin was also shopping at the same pet store. He had with him his 8-9-month-old Rottweiler puppy that he had adopted from an animal shelter just ten days earlier. The dog exhibited a great disposition and Coughlin was in the process training with the puppy. After coming from the animal shelter, the puppy had contact with children. The puppy had visited the pet store before the incident and had not exhibited any aggressiveness or territorial barking.

On that day at the pet store, plaintiff Christian asked Coughlin if her daughters could pet his puppy. The puppy was on a leash. Coughlin agreed. While Coughlin and Christian chatted, her children patted the dog. Suddenly the Rottweiler lunged and bit one of Christian’s daughters in the mouth causing her injury.

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.