Staten Island

Published on: June 10, 2012

NY Appellate Court Discusses Liability Issues for Slip and Fall on City Sidewalk

by Stephen Bilkis

The Housing Authority entered into a contract with a general contractor to improve the grounds of a housing projects owned by the City of New York. The general contractor entered into a subcontract with a company that performs concrete work. The grounds of the housing project abutted a sidewalk.

On March 21, 2006 an elderly woman and her husband were walking on the sidewalk around the housing project. The husband was assisted by a healthcare attendant. As they were walking, the elderly woman’s right foot got stuck in a deep indentation in the concrete sidewalk. This hole in the sidewalk caused her to slip and fallon her knees. When the elderly lady got up, she saw the hole for the first time and described it to be about five inches long, ten inches wide and three inches deep.

The woman sued the City of New York and the Housing Authority. These two defendants sued the general contractor and the sub-contractor whose job was to work on the concrete grounds in and around the housing project.

Published on: June 3, 2012

Plaintiff Contends Emotional Distress in Medical Malpractice Claim

by Stephen Bilkis

A mother and on behalf of her deceased daughter, sued three doctors, two nurses and a hospital for medical malpracticeand for her daughter’s wrongful death. However, the hospital together with one of the doctors and one of the nurses separately move for a decision without a trial to dismiss the claims for emotional distress and lost society, comfort, and affection. The said doctor also seeks dismissal of the mother’s claims for lost support, services, and protection.

In opposition to the medical practitioner’s motions, the mother maintains that her action is closer with the previous court case in which a mother may recover for emotional distress when a child is stillborn due to medical malpractice. Further, a New York Injury Lawyer said the current record raises a factual issue whether the mother’s child was stillborn, since the opponent didn’t show that the child took a breath or had a heartbeat. Based on records, the state’s public health law defines live birth as a product of conception which after separation breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. The medical practitioners point out, however, that as they failed to make that showing, it was unnecessary, because the mother pleaded another claim on which with that previous court case a mother may not recover for emotional distress when her child is born alive and then dies due to malpractice. Consequently, the mother moved to revise her complaint and bills of particulars to clarify her alternative theories.

The court grants the mother’s motion to revise her complaint and bill of particulars as specified. Further, the court also denies the medical practitioner’s current motion for a decision without trial, without prejudice, as they seek dismissal of her claim for emotional distress.

Published on: May 31, 2012

Medical Malpractice Case Turns on Issue of Whether Child was Stillborn

by Stephen Bilkis

In New York, civil lawsuit policy is dictated through case law that determines what if any compensation that a person is entitled to. In the case of an infant who is stillborn due to medical malpractice, the standard of policy is determined by Broadnax v Gonzalez 2 N.Y. 3d 148, 777 N.Y. S 2d 416, 809 N.E. 2d 645 (2004). It states that a mother may recover damages for emotional distress due to a delivery of an infant who is stillborn, or deceased at birth due to medical malpractice.

However, if that same infant is delivered alive and then dies, then the mother is not eligible to recover damages based on emotional distress. She is able to recover for lost support, services, or protection. She may also recover other pecuniary loss from the medical malpractice death of her child. These guidelines are established in Sheppard-Mobley v King, 4 N.Y.3d 627, 797 N.Y.S. 2d 403, 830 N.E. 2d 301 (2005).

Therefore, for a mother whose child is deceased, in order to file a lawsuit, she must know if the child was actually stillborn, or if the child died after taking a breath. A New York Injury Lawyer said that a single breath is proof that the child was born alive. Air in the baby’s lungs is considered proof that the baby was born alive. However, in a case where these lines are blurred, it can become difficult for a parent to know how to proceed. The case must be filed within a set time period of 90 days from the birth of the child. It can be difficult for a mother who has just lost her child to make decisions of this sort in this time frame.

Published on: May 19, 2012

Court Rules Against Insurance Company in Slip and Fall

by Stephen Bilkis

Occasionally, a situation will arise that causes a personal injury to a person in which it is difficult to determine who holds the liability for the specific situation. In New York, according to a New York Injury Lawyer, most delivery companies have liability insurance that covers the delivery of their product through transport until the item is placed in its final delivered position. If a person is injured during a delivery, the delivery company has liability coverage that will cover it. However, if the product has already been placed in its delivered position, the delivery is complete and the insurance coverage for that delivery is over.

In one case that occurred on August 30, 2010 in Bronx County, New York, a man was walking across the floor of the basement boiler room in his residential building when he slipped. He slipped on oil that had been delivered the day before to the boiler room (slip and fall). Apparently, during the delivery, the delivery personnel spilled oil on the floor and failed to clean it up or notify anyone that the oil was on the floor. The man sustained significant injury in the fall and filed a lawsuit to recover damages from those injuries. The main also filed a motion to obtain a summary judgment from the court declaring that the defendant insurance company for the oil delivery truck pay those damages. The Supreme court of Bronx County granted the victim’s summary judgment and ordered the truck insurance company to reimburse the victim for his personal injury.

The insurance company for the delivery truck filed an appeal. They stated that the delivery had been completed the day before and thus they did not believe that they should hold any liability. The offered before the court the defense that they cannot be held liable for the injuries that were sustained the day after the delivery was completed. The court disagreed. A Queens Personal Injury Lawyer said the statute as written states that the products-completed operations hazard coverage applies if the work has not yet been completed or if the work was abandoned while it was in delivery and the company employee failed to complete the delivery in a satisfactory manner.

Published on: May 17, 2012

Plaintiff Claims Landlord Negligent in Dog Bite Incident

by Stephen Bilkis

A 72 year old lady lived in an apartment complex where there was a “no pets” policy in the lease. One of the residents violated his lease and kept a pit bull as his pet. On August 8, 1995, the 72 year old lady was walking down a pathway when she heard a dog barking. She saw a neighbor or hers as he tried to control his barking pit bull. The dog’s owner told the 72-year old lady that his dog was barking because he saw children playing and that aggravated the dog.

A New York Injury Lawyer said a few seconds later, the dog jumped up on the 72 year old lady. The dog attacked the lady and she sustained a head injurywhen the dog bit off her left cheek. The lady then sued her landlord because he was negligent in enforcing the terms of the lease that no pets were allowed in the apartment building. She also sued the dog owner. She claimed that the dog owner knew or should have known that his dog had vicious propensities. He should have known that his dog attacks people.

Both the landlord and the dog owner filed a motion for summary judgment asking that the complaint against them be dismissed. The plaintiff also moved for a summary judgment asking the court to determine liability.

Published on: May 16, 2012

Plaintiff has Slip and Fall Accident from Excessive Ice

by Stephen Bilkis

A woman was walking along a sidewalk on Leonard Street in Brooklyn. She passed a house with a garage that abutted a sidewalk. The position of the garage door indicated that the residents of the house passed the sidewalk when they bring their cars to and from the garage.

A New York Injury Lawyer said as the woman was walking on the sidewalk in front of the garage door, she slipped on ice and snow that had not been removed. Her weight was on her right foot when she suffered the slip and fall. She sustained personal injury and commenced a suit in damages against the owner of the property that abutted the sidewalk.

After discovery proceedings and before trial, the property owner moved for a summary judgment, asking that the complaint be dismissed for the failure of the plaintiff to show that there are genuine issues of fact that must be heard by a jury.

Published on: May 14, 2012

Court Decides of Insurance Company should Provide Liability Coverage

by Stephen Bilkis

The appellant is State Farm Mutual Automobile Insurance Company. Jacques Laguerre et al. Are listed as defendants and Petter A. Gozzi is named as a respondent.

Results

The initial order from the original suit was reversed as was appealed for in regards to the portion of the original complaint. The plaintiff looked for summary judgment that would remove any obligation to defend and provide liability coverage to Jacques Laguerre. This defense was to have been in regards to a car crash that occurred on February 11, 1999. Petter A. Gozzi also filed a cross-motion that would force the plaintiff to defend and indemnify Laguerre in the action regarding the crash. This case, Index Number 111255/01 was pending in New York County. However, a New York Injury Lawyer said the motion to force State Farm to defend and indemnify Jacques Laguerre was subsequently denied.

Published on: May 10, 2012

Slip and Fall Plaintiff Contends Poor Snow Removal Caused Accident

by Stephen Bilkis

On January 15, 2006, a woman left her home in Queens, New York. She was walking and it was snowing in a heavy fashion. She stated that she had seen five inches of snow on the banister of her home’s steps when she walked down them. A New York Injury Lawyer said she woman walked past two houses on her way to the supermarket. She stated that she had gotten home from work the night before and that it had been snowing and there was ice on the sidewalk. When she was in front of the house owned by the defendant and his wife, she tripped on something in the snow and fell (slip and fall). Her ankle was twisted badly and she could not get up to continue on to her location or to go back to her own house just two houses away. She testified in court that she sat on the sidewalk in front of the defendant’s house for two hours in a blinding snowstorm until she was found and helped. She stated that she had tripped on old ice that was piled up under the new snow. As she sat there, she examined the ice and found that it was old and blackened with dirt from melting and refreezing.

The defendant has filed a motion for summary judgment in his favor dismissing the complaint against him. He maintains that there was no snow accumulated in front of his residence. He and his wife testified that they shovel the snow in front of their residence as soon as the snow accumulates there. They maintain that they were never notified by the city that there was an accumulation in front of their home that needed to be removed. Queens Personal Injury Lawyer they further stated that until the notice to appear in court, they did not know anything about anyone falling in the snow.

In support of their claims, the defendant produced climatological reports for the two weeks prior to the incident. The woman claimed that she had noticed the ice on the sidewalk in that location a couple of weeks before and that the defendant’s had failed to remove the ice. The defendant’s refute that claim by stating that after shoveling snow, they are always conscientious about applying salt to the sidewalk to make sure that ice does not form. The climatological reports showed that while it got down below freezing at night on several of the nights, prior to the snowstorm of that date, the days were warm and any snow or ice that was on the ground would have melted. Since this evidence creates an atmosphere of doubt surrounding the survival of any ice on the sidewalk for two weeks prior to the accident, it is doubtful that the woman tripped on any old ice.

Published on: May 9, 2012

New York Appellate Court Decides Dog Bite Case, Judgement for the Defendant

by Stephen Bilkis

On 1 August 2009, the complaining witness, respondents’ neighbor, was washing his car in his own driveway when his next door neighbor exited her home. As she exited, three adult Rottweilers ran out of the house and chased a male who had apparently been visiting the woman next door. A New York Injury Lawyer said that individual seemed to be frightened by the dogs and in order to avoid what seemed to have been an imminent attack (a dog attack or an animal attack), jumped upon a vehicle owned by the complaining witness. At that time, the same three dogs turned their attention to the complaining witness. He, too, jumped on top of his car to avoid what seemed to be an attack on his person. However, this time the dogs alighted the vehicle he had been washing and one or more of the dogs bit him on numerous parts of his body. It was only after he was perched on top of his vehicle that the dogs retreated to the respondent’s home.

Subsequently, the aforesaid neighbor initiated this complaint.

During the hearing, the Court was able to observe a wound on the victim’s hand. Photographs were admitted into evidence depicting two large and seemingly deep penetrating wounds on the victim’s thigh. Other photographs were admitted into evidence showing that pieces of human flesh and fatty tissue had been ripped from the victim’s body. Furthermore, it is apparent that blood was dripping from the roof of the vehicle and down the windshield. Moreover, it is apparent to the Court that the blood was that of the victim. It should also be noted that paw prints were depicted on the hood of the freshly washed car.

Published on: May 8, 2012

Defendant Claims Statute of Limitations has Run, New York Appellate Court Disagrees

by Stephen Bilkis

A man moves to dismiss the personal injury action filed against him on the ground that the action is barred by the law of limitations. A New York Injury Lawyer said the complainant cross-move the action to consolidate it against the man with another pending action arising out of the same slips and fall. The record establishes that the man is not entitled to the relief he seeks and that consolidation of the actions is appropriate.

The abovementioned actions arise out of when the complainant slip and fallon an icy walkway at a mobile home park then owned by the man. The particular lot where the complainant fell was rented by a couple. The complainant’s contend that the man, who rented the lot, was employed by the man to supervise the mobile home park. The pending personal injury action against the man was commenced more than three years after the complainants ’cause of action accrued. The complainant also contend that because an employer-employee relationship existed between his opponents, he is entitled to the benefit of the relation back principle and that the claim against the man is therefore deemed to have been interposed when the complaint was served in the action against the man’s employee.

The man points out that he was originally named as an opponent in the complainant’s timely-commenced action but was never served and therefore, the action against him was automatically dismissed. For that reason, because the additional 120-day period had also expired, the complainants’ motion to permit expedited service on the man in that action was denied by the decision of the court. The complainant thereafter purchased a new index number, initiated a new action against the man and obtained an order permitting expedited service on man and to effect on such service.