Articles Posted in Personal Injury

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For the Supreme Court of the State of New York, the prescribed venue of an action is codified at and statutorily authorized by Article 5 of the CPLR. The statutory scheme provides that “notwithstanding the provisions of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order of the court upon motion or by consent” (CPLR §509). As such, unless the parties have by prior written agreement fixed the venue of an action, CPLR Article 5 permits the plaintiff the right to make the initial selection of an appropriate venue.

Pursuant to CPLR §503(a), venue is predicated upon the residence of one of the parties at the time the action is commenced, not where the cause of action arose. However, CPLR §510(1) provides that the “court, upon motion, may change the place of trial of an action where: the county designated for that purpose is not a proper county.” And, it is settled that upon a motion by defendants to change said venue, defendants bear the burden to establish that the plaintiff”s choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. In addition, it is settled that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed”.

Here, defendants fail to demonstrate that plaintiffs move to Pennsylvania shortly after commencing the instant action evidences a lack of intent to retain New York County as a permanent residence sufficient to defeat New York County as a basis for venue.

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In this personal injury action brought by plaintiff defendants move for an order, pursuant to CPLR §511, to change venue to Westchester County. A Bronx Estate Lawyer said that, plaintiff commenced this action through the service of a Summons and Complaint on September 30, 2009. Her Summons lists the basis of venue as her residence, 214 East 83rd Street, Apt. 5A, New York, New York 10028. In her Complaint, plaintiff alleges that defendant is the owner of 214 East 83rd Street, New York, New York (the “premises”), and Realty is the management company of the premises. Plaintiff further alleges that on or about July 2, 2009, as a result of defendants’ negligence, she fell down an interior staircase of the premises, and suffered serious injuries.

A Bronx Probate Lawyer said that, defendants contend that, pursuant to CPLR §503(a), venue is based on the parties’ residence at the time of commencement of the action. For corporations such as Realty, residency is determined by the county where its principal place of business is listed on its certificate of incorporation. As defendant resides at 10 Forthill Lane, Scarsdale, New York, New York, 10583, and Realty is a domestic limited liability company incorporated in Westchester County, with its principal office in Westchester County, defendants’ residency is Westchester County.

Citing injury case law, defendants further contend that a defendant is entitled to a change of venue from the venue chosen by plaintiff, if, shortly after an action is commenced, the plaintiff moves from the residence that served as the basis for venue at the time of commencement. Such an act evidences a plaintiff’s lack of intent to retain the residence as a permanent residence. Citing the affidavit of defendant, defendants argue that plaintiffs lease regarding the premises was terminated in October 2009, and plaintiff moved out of said premises on October 31, 2009, and now lives in Pennsylvania. Therefore, plaintiffs address at the time the instant matter was commenced cannot be deemed plaintiffs residence, because she did not possess the requisite intent to retain the residence for some length of time and with some degree of permanency. Given that plaintiff is now a Pennsylvania domiciliary with no residency in any county within New York State, the only proper county for venue is Westchester County, defendants argue.

In opposition, plaintiff distinguishes the case law on which defendants rely, on the ground that in those cases, it was clear that the plaintiff was never a bona fide resident of the county wherein the action initially was venued. The courts rejected such attempts to manufacture or manipulate venue by temporarily relocating to the chosen venue. In contrast, plaintiff was a longstanding resident and domiciliary of New York County, where she lived, worked, received her paychecks, and filed her income tax returns. Plaintiff did not temporarily move or relocate to New York County for the specific purpose of establishing venue therein, nor did she utilize the home of a family member or office as a temporary stopover for the purpose of creating a sham venue. The mere fact that plaintiff relocated outside of New York County after commencing this action is irrelevant for venue purposes, plaintiff argues.

Plaintiff further contends that venue is preferred in the county where the cause of action arose. Plaintiff’s accident occurred in New York County, and the accident situs is within the management and/or ownership of defendants. Thus, New York County is the proper venue. In reply, defendants point out that they are not contending that plaintiffs New York County residency was a sham. Instead, they are arguing that, based on recent case law, New York County is an improper venue.

Further, defendants distinguish the case law plaintiff cites, and contests plaintiffs argument that venue is preferred in the county wherein the cause of action arose. While the importance of the situs of an accident for venue purposes is relevant in regards to the convenience of witnesses, defendants are not seeking a change of venue based upon the convenience of witnesses, but instead upon the contention that Westchester County is the only proper venue in this matter. As such, plaintiff’s argument regarding the situs of the accident is irrelevant for the purpose of defeating defendants’ motion.

The issue in this case is whether the motion to change the venue should be granted.

To Be Cont…
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The Finch complaint alleged that the defendants improperly placed the infant in non-kinship foster care; failed to provide federally mandated preventive and reunification services; arbitrarily restricted visits between the infant and his grandmother; and failed to provide the infant with treatment for deafness. The policy in that case contained an endorsement with language identical to that contained in ISO Form CG 20-26 in that the City was qualified as an additional insured but only with respect to liability arising out of Talbot’s operations. The policy also contained a clause that excluded from coverage any bodily injury due to the rendering of or failing to render any professional services. The insurer disclaimed coverage for the City arguing that the Finch allegations concerned actions undertaken by social workers in their professional capacities and thus fit completely within the professional services exclusion clause. The insurer further argued that the infant’s injuries did not arise out of the foster care agency’s operations because the City, not the agency, initiated the course of action leading to the alleged injuries by placing the child with the agency instead of in kinship foster care with his grandmother. In granting the City’s motion for a declaration that the insurer was required to defend it, the court reasoned, As a frontline foster care provider, Talbot was in an excellent position perhaps the best position to avoid or reduce the risk that the infant would be harmed while out of his family’s custody. The court further stated, Clearly, to the extent there is liability in this case, the City’s liability stems from Talbot’s operations as well as its own.

Similarly here, irrespective of whether the City had an independent duty to the plaintiffs in the underlying action, the fact remains that Army, through its contract with the City, obligated itself to provide child welfare services, including placement of children in foster homes. Furthermore, according to the allegations in the complaint and Army’s own admission, the infant plaintiff was injured while in foster care with Army’s foster boarding program. Thus, Army’s actions as the frontline foster care provider are a central component of the infant plaintiff’s alleged injuries. Accordingly, Army has failed to meet its burden demonstrating that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions.

Army argues, in the alternative, that should this court find that the Agreement provides for the City’s coverage as an additional insured with respect to the Stanley complaint, the City’s motion must still be denied because the City’s failure to comply with the notice requirements voids any coverage under the Agreement. The personal injury insurance provision in the Agreement required the City to notify the insurer, in this case Army, of any occurrence, offense, claim or suit as soon as practicable. As soon as practicable has been construed to mean within a reasonable time after the duty to give notice arises. The duty to give notice arises when, based on the information available, an insured could glean a reasonable possibility of the policy’s involvement.

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The court is also unpersuaded by Army’s arguments that “this is essentially a claim for indemnity with defense” and that the defense and breach of contract claims herein are identical and duplicative of those asserted in the underlying Stanley action. In the underlying Stanley action, City asserted a cross-claim against Army for contribution and/or indemnity. Here, the City moves for a declaration that, pursuant to the insurance provision in the contract between the parties, Army has a duty to defend City in the underlying Stanley injury action or alternatively, that Army has breached the contract between the parties in that it failed to obtain the insurance required under the terms of the Agreement. An insurer’s duty to defend an insured is separate and apart from an obligation to pay or indemnify an insured.

Accordingly, an insurer may be contractually obligated to defend on a claim for which it is not required to pay or indemnify because it is later discovered that the claim falls within an exclusion. Thus, although the causes of action asserted by the City here and in the underlying Stanley action arise out of the same subject matter or series of alleged wrongs, the nature of the relief sought is not the same or substantially the same and therefore are not duplicative.

The motion herein is for summary judgment declaring that Army is required to defend City in the underlying Stanley action. With respect to Army’s duty to defend, the Agreement provides that Army has no duty to defend the City in personal injury or property damage actions to which the subject insurance does not apply. The Agreement further provides that coverage for the City as an additional insured is only with respect to liability arising out of Army’s operations. In support of its motion, the City annexes a copy of the complaint in the underlying action. The Stanley complaint alleges, in relevant part,

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During the second renewal period of the Agreement, the infant Joseph Stanley II was placed into care with foster parent Anita Nurse. On June 6, 2006, while in the custody of Ms. Nurse, the infant was injured. On or about August 2006, a Notice of Claim, dated June 20, 2006, was served on the City. On December 7, 2006, a 50(h) hearing was held of plaintiff Joseph Stanley, father and natural guardian of the infant plaintiff. In January 2007, the City and Army were served with a summons and complaint in the Stanley action.

On June 21, 2007, five months after it had been served with the summons and complaint, City forwarded, by fax, a copy to Chesterfield, Army’s insurer, and requested that defense counsel be assigned to defend City. In a letter dated July 24, 2007, a Chesterfield claims representative denied the City’s request citing a review of the contract between the parties as the basis for the denial. The basis for the denial lacked any further specificity.

City submits that pursuant to the Agreement, Army is obligated to defend it in the Stanley personal injury action. Specifically, the City contends that the Stanley complaint alleges bodily injury arising out of Army’s work or operations and is thus within the scope of the insurance coverage that Army must provide to the City pursuant to the contract. Thus the City seeks a judgment declaring that Army is obligated to defend the City in the Stanley action and requiring Army to reimburse the City for fees incurred in defending the Stanley action from June 21, 2007, to date. Alternatively, City argues it should be granted summary judgment on its breach of contract claim in that Army failed to provide it with liability insurance coverage as required by the agreement between the parties.

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This action was commenced by the City of New York (City) for a declaration, pursuant to CPLR 3001, that defendant the S Army (Army) has a duty to defend the City in a negligence action currently pending in the Supreme Court of Kings County. That action is entitled Joseph Stanley and Aphrodite Stanley as parents and natural guardians of Infant Plaintiff Joseph Stanley II, and Joseph Stanley and Aphrodite Stanley, Individually, v. City of New York, The S Army of Greater New York and Anita Nurse, (the Stanley action). The City now moves for summary judgment declaring that the Army is obligated to assume the City’s defense in the Stanley action and requiring the Army to reimburse the City for attorneys’ fees incurred in defending the Stanley action from June 21, 2007, to date. Alternatively, the City moves for summary judgment on its third cause of action for breach of contract alleging that if the court issues a determination that S Army has no duty to defend the City, then S Army will have breached its obligations to the City by failing to provide it with liability insurance coverage for S Army’s operations as required by the Agreement that exists between the two. The Army opposes the City’s motion on several grounds and cross-moves for summary judgment dismissing the injury complaint.

On or about May 30, 2000, the City and Army entered into an agreement for the purchase of child welfare services (hereinafter, the Agreement). Pursuant to the Agreement, Army as contractor would provide child welfare services, including the placement of children in foster homes within their communities, to the City for the period March 1, 2000 to February 28, 2003. The contract was renewed twice, once in November 2002 and again in January 2006. The last renewal extended the agreement through February 28, 2009.

With respect to insurance, the Agreement provides, in relevant part: The Contractor shall carry paid up commercial general liability insurance covering both itself and the City with a limit no lower than $1,000,000 per occurrence and with a deductible no higher than $10,000. This policy shall provide coverage of at least as broad as that provided by ISO Form CG 00-01 and shall contain no additional exclusions of any kind whatever except for those mandated by law and those expressly accepted by the Department in writing. The City’s coverage thereunder shall be as additional insured, and such coverage shall be no narrower than that provided by ISO Form CG 20-26. Such policy or policies of injury insurance shall be obtained from a company, or companies, duly licensed to do business in the State of New York.

The form further provides that it is the insurer’s right and duty to defend the insured in personal injury or property damage actions, but that the insurer has no duty to defend the insured in personal injury or property damage actions to which the insurance does not apply. at Section I (A)(1)(a)(2). ISO Form CG 20-26, an endorsement regarding the designation of a person or organization as an additional insured, qualifies the City as an additional insured for coverage but only with respect to liability arising out of the operations or premises of Army as the named insured. Pursuant to the Agreement, the City had the obligation of notifying the insurer as soon as practicable of any occurrence, offense or accident lawsuit which may result in a claim. See Exhibit 3 at Section IV (2)(a) and (b).

In order to meet the insurance requirements of the Agreement, Army provided the city with a copy of its certificate of liability insurance and letters from its insurance carrier, Chesterfield Insurance Agency, Inc. As indicated in the certificate of liability insurance, Army is self-insured for commercial general liability purposes with a limit of $500,000 per occurrence. Army carries additional general liability coverage through an excess/umbrella liability policy from Chesterfield Insurance Agency, Inc., with a limit of $3,000,000 per occurrence. Id. There is no deductible for either the self-insured commercial general liability insurance or the excess/umbrella liability insurance.

To Be cont….
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The Court finds GS and ZG Inc.’s failure to plead that the plaintiff had a grave injury within the third-party summons and complaint is not a defect which, in it of itself, requires dismissal. Despite the exclusion of the term grave personal injury, JB, by virtue of the third-party summons and complaint, had due notice of the facts and elements underlying this action. They knew that the cause of action arose out of plaintiff’s accident and they knew the extent of their involvement in this action. Accordingly, this Court is not inclined to dismiss GS and ZG Inc.’s action based on the deficiency of their pleadings.

In this action, JB alleges that a review of plaintiff’s bill of particulars and the injuries pled therein reveals that none of the injuries pled by plaintiff fall within the ambit of grave injuries as listed in Workers’ Compensation Law §11. Further, JB asserts that a review of plaintiff’s deposition transcript, specifically the portions delineating the injuries sustained, reveals that plaintiff’s injuries are not grave as defined by the statute. Lastly, JB submits that numerous portions of plaintiff’s medical records do not indicate that plaintiff is afflicted by any of the injuries termed as grave by the statute.

After a review of all items just listed, the Court concurs with JB. While plaintiff’s injuries are serious and involve fractures and injury to multiple body parts, they do not fall into any of the categories listed under the statute.

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The infant plaintiff, born by caesarean section on June 20, 1979 at the Bronx-Lebanon Hospital, suffered brain injury three days after his birth. Defendant doctors in this medical malpractice action maintain that, when plaintiff was born, he was in perfect health, sustaining brain injury damage when he inhaled milk during a feeding three days later. Defendants-appellants Bronx Anesthesia Group, P.C. and ZV, M.D. further assert that Dr. ZV did not assume her responsibilities as anesthesiologist during the surgery until 1:30 p.m., more than one-half hour after the infant was born at 12:56 p.m. Prior to that time, anesthesia duties were performed by BW, a nurse anesthetist employed by the Bronx-Lebanon Hospital Center. The record does not reflect any negligence by Nurse BW in her administration of anesthesia; but even assuming her negligence, it is asserted that such negligence is not attributable to ZV and the anesthesia group employing her.

Defendant Bronx-Lebanon Hospital Center maintains that there are questions of fact concerning whether management of the labor and delivery was appropriate. With respect to defendants-appellants, the hospital notes, “notwithstanding Dr. ZV’s affidavit, the operative report from the caesarean section lists Dr. ZV as the anesthetist, without mention of Dr. BW.” According to Bronx-Lebanon, there is a question of fact with respect to ZV’s duties as anesthetist and, particularly, her responsibility to supervise Nurse BW.

Plaintiff opposed summary judgment motions interposed by the obstetricians and the Clinton Medical Group to which they belong. Plaintiff did not, however, oppose the cross-motion made by defendants Bronx Anesthesia Group and Dr. ZV, which motion was opposed by the hospital. Supreme Court denied all the motions for dismissal without prejudice to renewal upon completion of all discovery in this matter.

The affidavit of Dr. ZV in support of her cross-motion states that she was not present during the birth of the child and that her involvement was limited to end-care anesthesia and treatment of the mother. Despite the hospital’s attempt to disparage its probative value, the statement of a witness constitutes competent evidence. Furthermore, her allegations are entirely supported by the hospital’s own anesthesia record made during the delivery. Appellants have therefore made a prima facie showing of their entitlement to summary judgment.

In opposition, Bronx-Lebanon offers only a surgical summary, dictated by Dr. HK, listing Dr. ZV as the anesthetist. From this single entry and in the absence of any proof, by affidavit or otherwise, that she had any responsibility for the administration of anesthesia prior to delivery, the hospital concludes, The medical record demonstrates that Dr. ZV was present in the delivery room during a time in which it is possible that negligence occurred. No explanation is offered for the discrepancy with the anesthesia record, which lists both Dr. ZV and Nurse BW as anesthesiologists.

The issue is whether or not the motion for summary judgment should be granted.
Bronx-Lebanon Hospital Center has offered no proof that Dr. ZV was responsible for supervising the administration of anesthesia prior to delivery of the infant. Nor has it offered any excuse why proof in admissible form cannot be provided. Conspicuously absent is an affidavit from Nurse BW, who is presumably both knowledgeable of Dr. ZV’s duties during the surgical procedure and under the hospital’s control. Instead, Bronx-Lebanon relies on counsel’s bald conclusory assertion that she should have been present earlier, a statement that can be given no evidentiary value. Furthermore, the hospital supplies no evidence to support the inference of malpractice. The record contains no affidavit of a physician stating how the administration of anesthesia by Dr. ZV or Nurse BW can be regarded as a departure from accepted medical practice or a proximate cause of any injury sustained by the infant plaintiff.
The hospital’s theory of liability, as far as one is discernible, is that Dr. ZV may have had a duty to supervise the nurse anesthetist, who may have departed from accepted standards of medical practice, which might have contributed to the infant’s condition. Rank speculation is no substitute for evidentiary proof in admissible form that is required to establish the existence of a material issue of fact and, thus, defeat a motion for summary judgment.

Accordingly, order of the Supreme Court, Bronx County, entered January 28, 1993, which denied the cross-motion of defendants Bronx Anesthesia Group, P.C. and ZV, M.D. for an order granting summary judgment dismissing the complaint and all cross-claims against them, without prejudice to renewal upon completion of discovery, unanimously reversed, on the law, without costs, to the extent appealed from, the motion granted and the complaint dismissed, as against said defendants.
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It is well settled that employers are required to secure and provide a system of compensation for their employees in the event that they are hurt or killed as a result of injury sustained in their course of their employment. This compensation is provided to an employee without regard to fault. Id. If the employee provides for such compensation it is the employer’s exclusive liability in the event of an injury to an employee and it is an employee’s exclusive remedy against his employer. The right of compensation under this law is the employee’s exclusive remedy even if the injury is the result of the negligence of a co-worker.

On September 10, 1996, The New York Legislature amended the Workers’ Compensation Law. The amendment to §11 of the law specifically addressed third party actions against employers. Under the amended law, third party impleaders, against an employer who provides Workers’ Compensation coverage to his employees, are generally barred. The two exceptions are where there is (1) a contractual obligation specifically requiring the employer to indemnify the third party, or (2) when the employee has suffered a grave injury as defined and enumerated by the statute.

In defining grave injury the Worker’s Compensation Law, §11 states: An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a grave injury which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

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Former defendant, PB, moved seeking summary judgment against all other parties. Thereafter, said defendant and all other parties stipulated to withdraw said motion. Pursuant to said stipulation, PB was substituted out of this action and the BC Inc. was added as a defendant. The current caption represents the substitution. Third-party defendant, JB, cross-moves seeking summary judgment and dismissal of the third-party complaint. JB claims that the instant Third-Party action is summarily bared by the Workers’ Compensation Law in that no contract for indemnification exists between JB and the Third-Party plaintiffs. In addition, JB, contends that plaintiff has not suffered a grave injury as defined by the Workers’ Compensation Law. Lastly, JB claims that the third-party complaint fails to plead that plaintiff suffered a grave injury, and as such the complaint is defective. Third-party plaintiffs GS and ZG Inc., oppose said motion alleging that plaintiff, within his bill of particulars, has asserted injuries which are considered grave under the Workers’ Compensation law. BC Inc. does not oppose the instant motion.

The instant action arises from an alleged fall off a roof. On November 15, 2001, plaintiff a roofer employed by JB was working at the premises owned or occupied by GS and located at New York. While not directly addressed or relevant to the instant motion, JB was apparently hired by BC Inc. who was allegedly hired by ZG Inc. to perform the work on the roof. Plaintiff alleges that while he was lowering debris/garbage from the roof, he fell off the roof which was twenty-five feet above the ground. Plaintiff suffered a litany of injuries and as a result he sued BC Inc., GS and ZG Inc. Specifically, and at issue in the instant motion, plaintiff’s bill of particulars alleges, that he sustained facial lacerations and cognitive brain injuries.

There are several facts which are beyond change and which are relevant and dispositive for the purposes of deciding the motion herein. Plaintiff worked for JB. JB had a Workers’ Compensation insurance policy in effect at the time of this accident. Plaintiff received Workers’ Compensation benefits from JB after this accident. There is no claim that JB was a party to any contracts whereby JB was to indemnify anyone for injuries resulting from the work described. GS and ZG Inc.’s basis for impleading JB is that the plaintiff suffered a grave injury.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. There is no requirement that the proof for said motion be submitted in affidavit form; rather, the requirement is that the evidence proffered be in admissible form. Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. The burden, however, always remains where it began, with the movant on the issue. Hence, if the evidence on the issue is evenly balanced, the party that bears the burden must loose.

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial
Accordingly, the Court’s function when determining a motion for summary judgment is issue finding and not issue determination. Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. When the existence of an issue of fact is even debatable, summary judgment should be denied.

To Be Cont…
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