Articles Posted in Bronx

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Defendant moves, pursuant to CPLR § 3212, for an order granting summary judgment due to plaintiff’s failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104. Plaintiff opposes defendant’s motion. A Lawyer said that, the action arises from a motor vehicle accident involving a collision between a motor vehicle operated by plaintiff and a motor vehicle owned and operated by defendant. The accident occurred at approximately 4:00 p.m. on August 21, 2007, on West Merrick Road at its intersection with Rockaway Avenue, Valley Stream, Long Island. On or about May 21, 2008, plaintiff commenced this action by service of a Summons and Verified Complaint. Issue was joined on June 19, 2008.

The issue in this case is whether The Bronx defendant is entitled to his motion for summary judgment on the ground that plaintiff did not sustained serious injury as defined under the Insurance law.

The Court held that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist.

Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury.” In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiffs examining physicians. However, unlike the movant’s proof, unsworn reports of the plaintiffs examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s injury.

Conversely, even where there is ample proof of a plaintiff’s personal injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

Plaintiff claims that as a consequence of the above described automobile accident with defendant, she has sustained serious injuries as defined in § 5102(d) of the New York State Insurance Law and which fall within the following statutory categories of injuries: 1) a permanent consequential limitation of use of a body organ or member; (Category 7); 2) a significant limitation of use of a body function or system; (Category 8); 3) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. (Category 9).
The Court said that, a minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. A claim raised under the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories can be made by an expert’s designation of a numeric percentage of a plaintiff’s loss of motion in order to prove the extent or degree of the physical limitation. In addition, an expert’s qualitative assessment of a plaintiff’s condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiffs limitation to the normal function, purpose and use of the affected body organ, member, function or system.
Finally, to prevail under the “medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” category, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature” “which would have caused the alleged limitations on the plaintiffs daily activities.” A curtailment of the plaintiff’s usual activities must be “to a great extent rather than some slight curtailment.” Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

With these guidelines in mind, this Court will now turn to the merits of the defendant’s motion. In support of her motion, the defendant submits the pleadings, plaintiff’s Verified Bill of Particulars, plaintiff’s hospital records from treatment at the Franklin Hospital Medical Center Emergency Room, the report of plaintiff’s treating physician. A board certified orthopedic surgeon, reviewed plaintiff’s medical records and conducted a physical examination of plaintiff. Based on his clinical findings and medical records review, the doctor’s diagnosis of plaintiff was “lumbar sprain with no clinical evidence of neuromotor deficits, no clinical evidence of herniated discs, radiculitis or radicupathy. Cervical sprain with no clinical evidence of neuromotor deficits, no clinical evidence of herniated discs, radiculitis or radicupathy. Right Shoulder contusion with no clinical evidence of internal derangement.” The orthopedic surgeon concluded “it is my orthopedic opinion that the claimant has no evidence of orthopedic disability related to the accident.

With respect to plaintiffs 90/180 claim, defendant relies on the deposition of the plaintiff which indicates that, at the time of the accident, she was working as a cashier and that she missed approximately two weeks of work. Plaintiff also testified that, in October 2007, she began working one day a week at Vincent’s Clam Bar in Carle Place, New York. Plaintiff further testified that she was enrolled as a full time student at Nassau Community College from September 2006 through May 2008 and that she missed one week of classes after the accident and several classes in the following months. Based upon this evidence, the Court finds that the defendants have established a prima facie case that the plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102(d).

The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. To support her burden, plaintiff submits the affirmed reports of D.O., who began treating plaintiff in September 2007 (approximately two weeks after the alleged car accident), the affirmed report of an MD, FAAPMR, who conducted a pain consultation for plaintiff. All of the aforementioned affirmations and the medical reports accompanying same indicate that plaintiff had indeed incurred a serious injury.

Accordingly, the Court concludes that the affirmations and affidavit provided by plaintiff clearly raise a genuine issue of fact as to injuries causally related to the accident. Consequently, defendant’s motion for summary judgment is hereby denied.
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The plaintiff sustained serious and catastrophic injuries when he fell while traversing a trench at a construction site in the Bronx. As a result of plaintiff’s fall into a trench at the job site he became impaled on a reinforcement bar (rebar) that was surgically removed several hours after his admission to the hospital. It is in this setting that the jury, after a trial and after hearing testimony from plaintiff’s physicians and other experts regarding the devastating and traumatic nature of the personal injuries he sustained, rendered a verdict in the sum of $86 million including $20 million for past pain and suffering and $55 million for future pain and suffering.

A Lawyer said that, plaintiff’s treating physician, the Director of Spinal Cord Services at Helen Hayes Hospital, described in explicit detail the nature and effect of the spinal injuries plaintiff incurred. The Doctor provided the court and jury, inter alia, with a graphic picture of plaintiff’s suffering, stating in part, that the pain plaintiff continues to experience “is of two types. He has nerve pain in his legs, and that nerve pain is perhaps one of the worst pains that you could think of. Imagine somebody stabbing you with a knife, a gazillion times, or with a pin all over the place. That numbness, that tingling, that stabbing sensation” is “present all the time, but it is a constant pain and that pain will not go away.” He depicted plaintiff’s chronic pain by providing the jury with a vivid description of the damage to plaintiff’s spinal column when the rebar went into the area of his spinal cord and the compression fracture also caused by the pipe entering his body. He described the emotional pain sustained by the plaintiff caused by the distress of no longer having the ability to walk and the nerve pain emanating from his legs which he testified was permanent. The jury also heard testimony regarding plaintiff’s chronic bed sores, his cauterization in order to urinate, his inability to control bowel movements, constant urinary tract infections and repeated hospitalization for the conditions described by the Brooklyn Doctor.

A Lawyer said that, the defendant moves pursuant to CPLR §4404 and §5501, to reduce the damages awarded to the plaintiff, after a jury trial, contending that the award is excessive and materially deviates from fair and reasonable compensation.

The issue in this case is whether the damages awarded to plaintiff is excessive and materially deviates from fair and reasonable compensation.

The Court said that, manifestly, pain and suffering awards are not subject to precise standards that permit a purely mathematically evaluation in order to determine whether a verdict deviates materially from what is reasonable compensation. CPLR §5501 requires that: “In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.”

It is well established that the language quoted, although specifically directed to the appellate courts, also applies to the trial court mandating the trial court to review jury awards to determine whether the award is excessive or inadequate. Consequently, review under CPLR 5501 requires the trial court to evaluate whether the award deviates from comparable awards and as the court observed, reviewing comparable awards “cannot, due to the inherently subjective nature of non-economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate.” It is also evident that review of jury verdicts for personal injuries to ascertain whether the award is reasonable, involves questions of fact.

Defendant referred this Court to several cases in an effort to convince the Court that the award, in the instant case, is not fair and reasonable. At the outset, this court acknowledges that the verdict rendered by the jury in the case at bar is unprecedented in view of the evidence presented regarding plaintiff’s spinal injuries and the jury award clearly exceeds what can be considered fair and reasonable. However, this recognition regarding the size of the verdict in the instant case does not automatically carry with it the court’s determination that the award falls within the boundaries which defendant suggests would be a fair and reasonable award for the plaintiff, who concededly is a paraplegic experiencing constant pain.

Evaluation of prior awards, in similar personal injury cases is intended to provide guidance to the court in resolving disputed contentions regarding the adequacy or inadequacy of a verdict so that issues such as prejudice or sympathy do not become the motivating factor for the award. The trial court, therefore, in reviewing a jury award must consider the nature of the injury sustained by the plaintiff, the plaintiff’s age, the physical condition of the plaintiff prior to the occurrence, the permanency of the injury sustained, plaintiff’s ability to return to gainful employment, the pain, both physical and emotional, experienced and to be experienced in the future, the extent of future hospitalization and ascertain whether the award in part was generated by the devastating effect of plaintiff’s injury. Here, x rays introduced at the trial showing the presence of the rebar that entered plaintiffs body clearly invoked sympathy by the jury causing in part, a huge verdict that was intended to compensate the plaintiff not only for pain and suffering he sustained but the grief experienced by the impact of the steel rod entering his body. Manifestly, modification of damages awards cannot be based on past precedents alone.

This Court’s review of the cases set forth in this opinion denotes the factors which are considered in assessing what would be reasonable compensation. This process, now completed, does not however provide a clear picture that permits the application of some formula that identifies the limits of compensation for injuries that parallel plaintiff’s suffering. It is undisputed that plaintiff who at one time was a strong and vibrant man is now a wheelchair bound paraplegic. The devastating injury he sustained was caused by the pipe that upon entering his body destroyed his bowel requiring a colostomy bag to collect his waste matter and he is required to manage his bladder with catheters. Plaintiff’s nerve pain in his legs is continuous and permanent. Such injuries, including those previously described, including the permanency of his injuries and his inability to return to gainful employment, are the factors that this court has applied in determining what would be reasonable compensation.
For the foregoing reasons, this Court grants defendant’s motion to set aside the verdict as excessive unless within 30 days after service of a copy of this decision and order with notice of entry plaintiff stipulates to reduce the jury award for past pain and suffering from $20 million to $5 million; for future pain and suffering from $55 million to $10 million, and for future medical related expenses from $10 million to $8,295,000.
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One Sunday, plaintiff, then twenty-seven years of age, was returning home from church services with her two children, a daughter then, 3 1/2 years of age and son, then 2 1/2 years of age, accompanied by her mother, then 62 years of age. The group proceeded along Buhrem Avenue in Bronx County and came abreast of defendants’ one-story taxpayer building. At this point, the infant daughter walked ahead, necessitating her mother’s ‘catching up’ to ensure that she did not go near the street. On the top of defendant’s building was a brick parapet approximately seven feet in height and one hundred feet long. This parapet had been observed to be leaning outward toward the sidewalk for a period of at least six months prior to the accident. The falling of this parapet wall occasioned the accident.

A doctor said that, plaintiff testified that she turned around to see how far her mother and son were behind, and heard her son asking for a cookie. Her mother stopped and reached into her bag to get him a cookie. Then plaintiff turned back to her daughter and heard a loud roar. When she turned around, she saw bricks were falling and hit the side of her body. She ran over and saw her mother and son under the bricks. A bystander rushed to aid plaintiff and the fallen victims and through his intervention plaintiff was able to remove her son, who was moaning, from the debris. He took plaintiff and her son to the hospital. Plaintiff, holding her injured son on her lap in the back seat of the vehicle, had for the first time a chance to look at his body. She testified that ‘his legs were hanging off at the sides. He had a little sun suit on, so it was very clear to me what I saw. I went to push his legs back on but I was afraid they would fall off. And as I did so I grabbed his shoes and saw that his ankles were the same way his thighs were’. Plaintiff’s son died on the evening of the same day from cardiac arrest following surgery necessitated by the previous personal injuries he sustained. The personal injuries sustained by plaintiff’s mother were severe, including comminuted compound fractures of the legs, pelvis, and ribs, a severe avulsion laceration of the scalp, and a spinal cord trans-section at about the middle of her back which paralyzed her from that point down. She was conscious with some intermittent periods of unconsciousness, and underwent two operations not under anesthesia. Plaintiff’s mother died as a consequence of her spinal injuries on May 19, 1970.

A Lawyer said that, after trial the jury returned a verdict in favor of plaintiff’s son’s father as administrator of the deceased infant in the amount of $150,000 for wrongful death and $25,000 for conscious pain and suffering. The trial court reduced the award for wrongful death to $40,000 and for conscious pain and suffering to $5,000. The jury verdict in favor of plaintiff’s father, the surviving spouse o plaintiff’s mother, in his capacity as administrator of her estate in the amount of $75,000 for wrongful death and $25,000 for conscious pain and suffering was not disturbed.

Plaintiff in the fourth cause of action set forth in the complaint asserts that her son at the time of the accident was accompanied by members of his family and that she therefore was a witness to the accident and ‘suffered severe emotional and mental trauma and anxiety and grief, with residual physical effects, resulting solely from the negligence of the defendant.’ A Lawyer said that, at the trial’s inception, the corporate defendant for the first time moved to dismiss this cause of action on the authority of the 1969 Supreme Court decision. This motion was granted by the trial court. A Lawyer said that, plaintiff thereupon took exception and moved to amend her complaint by asserting a cause of action, similar to the previously pleaded fourth cause of action, but limiting damages to the emotional trauma sustained as a result of her own involvement in the accident, as distinguished from damages she suffered only because she saw a building fall on her son and mother. The trial court originally granted this application, but subsequently, reversed itself, viewing the amended claim as a ‘new cause of action’ which is barred by the statute of limitations.

The issue in this case is whether plaintiff is entitled to damages for the death of her son and mother.

The Court said that, study of the rationale set forth in the 1969 case, impels the conclusion that plaintiff may not recover merely because she was an eyewitness to the occurrence resulting in the deaths of her infant son and mother. Similarly, it does not stand for the proposition that she cannot recover because she was an observer of the accident. Beyond peradventure plaintiff was not only an observer of, but a participant in the occurrence. In analyzing the considerations which give rise to the rule enunciated in the 1969 case, the then Chief Judge, initially observed that as to the scope of duty to one who is not directly the victim of an accident causing severe physical injury to a third person, the problem is ‘whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety’. Plaintiff did not under the facts as narrated by her sustain injury solely as the result of the personal injuries directly inflicted on her son and mother, but sustained harm as a consequence of being within the zone of danger and responding to her natural instinct to rescue her child and mother during the course of the occurrence. The bricks were still falling, according to plaintiff, as she advanced to her infant son and her mother and she was struck by some of them. The circumstances herein are unique and fall without the ambit of the rule enunciated in the 1969 case. Being directly involved in the accident, said plaintiff’s claim does not create the problem of unlimited liability which engaged the attention of the then 1969 case court.

Viewing the allegations of the fourth cause of action asserted by plaintiff in the context of the type of accident occurring, namely, the collapse of an entire parapet wall with consequent raining of hundreds of bricks into the street below, the defendants could not reasonably construe the averment that plaintiff ‘was a witness to the aforesaid occurrence’ in a narrow sense. It was clearly averred that the infant decedent was accompanied by members of his family at the time of the occurrence. On a motion to dismiss for failure to state a cause of action, the pleading must be liberally construed and every fair intendment given to the allegations contained therein. Thus viewed, the complaint served to put defendant on notice that plaintiff’s status as a witness may well have been imparted because of her status as a participant in the occurrence. Under these circumstances, plaintiff should not be penalized for failing to specifically assert a claim for recovery based upon physical contact with the falling bricks. Despite the information given in the bill of particulars relating to plaintiff’s physical ailments and confinement as consequence of the severe emotional and mental trauma suffered, defendant awaited the eve of trial with the apparent expectation that through a statute utilization of the 1969 case, it could effectively non-suit this plaintiff.

Confronted with the trial court’s rulings striking the fourth cause of action and refusing to allow amendment of said cause, plaintiff’s counsel made an offer of proof not in the jury’s presence to the effect that plaintiff, since the events of May 10, 1970, was on a prescription of tranquilizers, distraught, disoriented, constantly apprehensive of things falling upon her from the sky; that she walked on the curb line of sidewalks, and finally that she compelled her husband to reconstruct their own home although there was nothing wrong with the brickwork. Further, an offer of proof was made to the effect that the physician treating plaintiff for her emotional trauma would have testified that the accident of May 10, 1970 was the competent producing cause of her emotional and psychological traumas and fears. Parenthetically, it is noted that the plaintiff’s counsel in his brief asserts that defendant Buhre Avenue Co. Inc.’s counsel received the doctor’s report prior to filing of the note of issue but that said defendant opted not to conduct any examination before trial of plaintiff and decided to forgo a physical examination of her as well.

At this point it should be remembered that the 1969 case enunciated a policy determination with respect to substantive law, to wit, that ‘no cause of action lies for unintended harm sustained by one, Solely as a result of personal injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries’. The zone of danger rule was regarded as ‘quite relevant’ to the problem of allowing recovery to an eyewitness. Peculiarly, although the 1969 case was decided on the pleading alone, which pleading alleged psychic injury from the fact that a mother witnessed an accident to her child, the Court of Appeals in Brooklyn was cognizant of the fact as developed in an examination before trial that the mother involved did not in fact witness the accident. Patently, the harm to plaintiff was direct. The corporate defendant cannot reasonably claim surprise or that, it was misled. Essential justice mandates affording this litigant her day in court.

Accordingly, the judgment of the Supreme Court, Bronx County, should be modified to the extent of reversing, on the law, the dismissal of the cause of action of plaintiff, said cause of action should be reinstated and a new trial granted thereon, without costs and without disbursements; further, the judgment should be modified, on the law and the facts, so as to grant a new trial to defendants-appellant as against plaintiff’s father, as administrator of the estate of plaintiff’s deceased mother, solely on the issue of damages with respect to the wrongful death claim of said administrator, unless he, within 20 days of service upon him by the defendants-appellants of a copy of the order entered herein, with notice of entry, serves and files in the Office of the Clerk of the Supreme Court, Bronx County, a written stipulation consenting to reduce the verdict in his favor on the wrongful death claims to $60,000 and to the entry of an amended judgment in accordance therewith.
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An automobile accident occurred and, as a result, the appellee suffered serious injuries. He was taken to a Medical Center where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. However, these physicians misinterpreted appellee’s x-rays and radiological studies, and negligently concluded that he did not suffer a recent spinal injury, specifically a spinal column injury. Consequently, the attending Bronx surgeon and assistant encouraged appellee to attempt to walk approximately a week after the automobile accident. When he arose from the bed, appellee felt a shock and collapsed. He was then transferred to another Medical Center, a Regional Medical Center (second Medical Center), where he underwent surgery on his spine, but the surgery was not successful in reversing the spinal column damage, the spinal injury. The appellee then retained a lawyer of a certain law firm to investigate and initiate a legal malpractice action against the various physicians. The lawyer considered joining the physicians individually in the malpractice suit but, for various reasons, he decided not to join. He sent an “intent to sue” only to the two Medical Centers and its physicians. However, when the complaint was filed, the first Medical Center was not named. Thereafter, during discovery, the lawyer realized that the second Medical Center’s defense was based upon the comparative fault of the first Medical Center and its physicians. At this point, the statute of limitations had already expired, and the lawyer realized the potential of a legal malpractice claim for failing to join them. Thus, the lawyer then contacted his insurance company and referred the appellee to a new counsel.

The appellee and the second Medical Center, and its physicians, entered into a settlement agreement in the amount of $1,000,000, and then brought a legal malpractice action against the lawyer and his firm, which the Westchester Insurance Company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the “aggregate” amount applied. Specifically, the parties disputed whether the attorney’s failure to name the first Medical Center and each individual physician constituted independent wrongful acts or a single claim. So, the appellee filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because the lawyer committed multiple wrongful acts, the appellee claimed that he was entitled to the aggregate limits. The Insurance Company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act; that, since there was only one claim, the appellee was entitled to only $250,000 in coverage. The trial court agreed with the appellee and, on motion for summary judgment, entered a judgment in favor of the appellee for the aggregate limits. Based upon its interpretation of the policy, the trial court found that there were several acts of malpractice during the legal representation of appellees. Thus, the trial ruled that the appellees were entitled to the aggregate policy limits. The Insurance Company now appeals the said judgment.

The issues for the court’s determination is whether or not, pursuant to the insurance policy of the law firm the aggregate policy limit should apply where the appellee’s attorney committed multiple wrongful acts by failing to join several defendants in his medical malpractice action; whether or not, because each of the defendants had separate insurance coverage available to pay a damage award, appellee had multiple claims against his attorney.

The insurance company argues that appellee has only a single claim because he suffered one injury, that is, he did not receive his full recovery because the attorney failed to join all the proper defendants before the statute of limitations tolled; that even if the failure to sue each defendant is considered a wrongful act, these wrongful acts are related to the appellee’s sole malpractice claim against his attorney.

The appeal arises from a dispute regarding the policy limits of a legal malpractice insurance policy. The insurance policy in dispute is a “claims-made” policy which covers claims made against the insured during the policy period. The policy specifically provides that the insurance company shall pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period; that a claim means a demand received by the insurance company or an insured for money or services; and that a wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an insured. Under the conditions of the policy, the maximum amount that the insurance company will pay for each claim is the limit shown in the declarations as “per claim” for all claims and claims expenses arising out of or in connection with the same or related wrongful act; that this limit applies regardless of the number of persons that are insured under the policy or the number of claimants; that the aggregate, subject to the aforementioned condition, maximum amount that the insurance company will pay for all claims and claims expenses will not exceed the limit shown in the declarations as aggregate; and that all wrongful acts for which claims, or incidents which will later become claims, reported during the policy period are included.

As a rule, the construction and interpretation of an insurance policy is a question of law for the court. Such contracts are read in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

Here, the court finds that the Insurance Company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. Notably, there was but one demand for money, namely the lost recovery because of the failure to join various other defendants and thus one claim. Even if the appellee had multiple claims against his attorney, the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The California Supreme Court has already ruled in one case that, when a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained, there can only be a single claim under the attorney’s professional liability insurance policy. Applying that rationale to the case at bar, the appellee retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible defendants in his action. While the attorney’s negligent omission may be considered multiple wrongful acts, the appellee suffered only one injury, that is, an award that does not represent the full extent of his damages.

In sum, the alleged wrongful acts of the attorney were related and resulted in a single claim. While there were several wrongful acts, they were all related and constituted but one claim of legal malpractice under the policy language. Thus, the court finds that the judgment appealed from must be reversed and remanded for an entry of a declaratory judgment determining that the policy limit “per claim”, and not the aggregate limit, applies.
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This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a Bronx laborer for a Brooklyn construction company, and that he missed 11 days of work due to his spine injuries.

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.
The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

The man opposes the motion for summary judgment, arguing that the proof submitted by the woman fails to establish legitimately that he did not suffer a significant limitation of use in his lumbar spine as a result of the subject accident. Alternatively, the man asserts that medical evidence presented in opposition raises a triable issue of fact as to whether he sustained injury within the significant limitation of use category of Insurance Law. The Court notes that although the affirmation by the man’s counsel states that a denial of benefits statement from the no-fault carrier, the insurance company was included with the opposition papers, no such statement was annexed thereto. In addition, while an affidavit by the man states that he treated with a doctor until September 2005, the doctor’s affidavit states that the man ceased treatment in July 2005, because of financial constraints.

Insurance Law defines serious injury as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. When an accused seeking summary judgment based on the lack of serious injury relies on the findings of the accused party’s own witnesses, those findings must be in admissible form, and not unsworn reports to demonstrate entitlement to judgment as a matter of law. An accused also may establish entitlement to summary judgment using the complainant’s deposition testimony and medical reports and records prepared by the complainant’s own physicians. Once an accused meets the burden, the complainant must present proof in admissible form which creates a material issue of fact, or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form. However, if an accused does not establish a legitimate case that the complainant’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the complainant’s opposition papers.

Contrary to the conclusive assertions by the man’s counsel, the medical evidence presented by woman establishes legitimately that the man did not suffer a serious injury as a result of the accident. The Court notes that an accused who submits admissible proof that a complainant has full range of motion and suffers no disabilities as a result of the subject accident establishes a legitimate case that the complainant did not sustain a serious injury, despite the existence of an MRI report showing a herniated or bulging disc. The burden, therefore, shifted to the man to raise a triable issue of fact.

A complainant claiming injury within the limitation of use categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitations of movement and their duration. He or she must present medical proof contemporaneous with the accident showing the initial restrictions in movement or an explanation for its omission, as well as objective medical findings of limitations that are based on a recent examination of the complainant. In addition, a complainant claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so.

The man’s submissions in opposition are insufficient to raise a triable issue of fact. The affidavit by the man’s doctor improperly relies on unsworn reports of others in concluding that the man suffered significant limitations in spinal function as a result of the accident. Further, the man’s doctor’s affidavit states that on February 22, 2005, the man was sent for spinal rave of motion testing using a dual inclinometer and details the degrees of movement measured at that time. It states that range of motion testing using a dual inclinometer was performed again in March 2005 and provides the measurements taken, yet does not indicate who performed such testing. The doctor’s affidavit, therefore, is without probative value on the question of whether the man suffered a serious injury in the accident.

Moreover, the man failed to present competent medical proof contemporaneous with the accident showing significant limitations in spinal movement and the duration of such limitations. He also failed to provide evidence substantiating his allegations that he was forced to cease medical care just months after the accident, because his no fault benefits were terminated and he lacked the financial means to pay for such care. Finally, absent objective medical proof as to the significance or duration of the alleged spinal injuries, the man’s self-serving affidavit, which contains allegations of continued lower back pain and restricted movement, is insufficient to defeat summary judgment. Accordingly, summary judgment dismissing the complaint based on the man’s failure to meet the serious injury threshold is granted.
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A complainant man, age 37, was admitted to a hospital, after having suffered a gunshot wound to his neck. He was treated by a general surgeon and a neurosurgeon. During the first few days of treatment, the Bronx general surgeon formed an opinion that the man would be a permanent paraplegic. The neurosurgeon was also of the opinion that the man’s spinal column had suffered such severe damage and that eventual spasms in his extremities would be inevitable. However, the neurosurgeon noted in the hospital records that the man apparently had a sensation to his feet.

Subsequently, while the man was in an intensive care unit, nurses at the hospital placed him on a special bed used to allow immobilized patients to be rotated to a vertical position. The nurse who was responsible for checking out the bed failed to check on the position of an essential bolt, and as the bed was rotated the man fell. There was conflict in the testimony as to injuries caused by the fall. The man claimed that he struck his back on a chair, while the nurse testified that she caught the man prior to the time he struck to anything. After the incident, the man was examined by another physician, who noted that the patient had not sustained any injury when a section of the bed had almost fallen down. The man testified, however, that his pain intensified after the fall and that it was only after the fall that he had begun to suffer spasms. The man was discharged from the hospital and after which, he was a patient in various other Westchester hospitals. He undergone several operations, but he remains paralyzed.
A pathologist testified as an expert witness for the man. It was his opinion that the fall striking the mid portion of the man’s back in the area through which the bullet had passed had caused some degree of neurological and spinal injury, which in turn caused additional injury to the wound site. Even if the pathologist could not assess any particular degree of aggravation caused to the already existing damage, he did testify that the man’s fall from the bed injured him to some additional degree.

For the opponent, the neurosurgeon testified that he had seen no medical changes in the man before or after which warranted any conclusion that any injury such as a fall occurring in the hospital had worsened his condition, but rather that all of the man’s problems were consistent with the original gunshot injury and inconsistent with any other damage.

Initially, the court rejected the hospital’s argument that the man’s evidence did not warrant submission of the case to the jury. But, the court finds competent substantial evidence from which the jury found that the man suffered additional injury resulting from the hospital’s negligence. The man testified that he had fallen out of bed and there were notes from one of the nurses indicating that after such fall he was unable to move his toes. Even the neurosurgeon acknowledged there had been some sensation in the man’s feet prior to the fall, but there was none there after it.

The hospital however filed an appeal from the decision entered awarding the man a total of $350,000. The thrust of the hospital’s contention is that the man was an irreversible paraplegic when he was admitted to the hospital, therefore, the fall he sustained as a result of the hospital’s alleged negligence did not aggravate his then existing injuries.
Consequently, the court affirms the decision of the trial court as to the hospital’s liability, but reverses and remand to the trial judge.
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The Bronx complaint of this action sets forth causes of action sounding in medical malpractice, lack of informed consent asserted on behalf of the complainant woman and a derivative claim asserted on behalf of her spouse. It is claimed that the accused parties negligently departed from good and accepted standards of medical/surgical/anesthesia care and treatment when the complainant woman was admitted to the hospital for a scheduled right total hip replacement due to osteoarthritis and lack of blood flow on the right hip, and failed to inform her of the risks and complications associated with the surgery, anesthesia, and treatment with an anti-coagulant drug. It is claimed that due to the negligence of the orthopedic surgeon, the anesthesiologist and the hospital, the woman was caused to suffer extensive bleeding in the area of the lumbar plexus and to sustain serious injury and nerve damage resulting in right lower extremity weakness, foot drop, and numbness due to the failure of the accused parties to properly and timely treat her condition. It is further claimed that the accused doctors and hospital failed to properly provide information concerning the risks, benefits and complications to her to enable her to give an informed consent. The orthopedic surgeon performed the hip replacement, the anesthesiologist administered the spinal anesthesia for the surgery, and postoperative placed a lumbar plexus block and peripheral nerve block.

The moving doctors and hospital seek an order granting summary judgment dismissing the complaint asserted against them on the basis they did not deviate from good and accepted standards of care during the care and treatment and admission of the woman which proximately caused the claimed injuries she suffered.

The accused orthopedic surgeon and anesthesiologist individually submitted their attorney’s affirmation; the affidavit, copies of the summons and complaint, answer, amended answer; the complainants’ verified bill of particulars; and copies of the transcripts of the examinations before trial It is noted that the deposition transcripts of the two doctors are not in admissible form and are not accompanied by an affidavit pursuant to the Civil Practice Laws and Rules, and therefore, are not considered.

The accused Brooklyn hospital also submitted an attorney’s affirmation; copies of the pleadings and the woman’s verified bill of particulars; certified copy of the woman’s hospital record; expert affirmation of the anesthesiologist and copies of the transcripts of the examinations before trial of the orthopedic surgeon. It is noted that the deposition transcripts of the orthopedic surgeon and the anesthesiologist are not in admissible form and therefore, are not considered.

The orthopedic surgeon opines with a reasonable degree of medical certainty that his care and treatment of the woman was well within the standard of care. He states he took a proper history during a telephone call with her, ascertained that she had hypertension for which she was taking medication, she had a previous knee surgery, she had no allergies, and he advised her that she would have to obtain medical clearance with her internist and have preoperative testing at the hospital. He dictated a history and physical note and indicated she was taking medications for her blood pressure. He states all of his actions demonstrate that he took a proper pre-surgical medical history. He further avers that he is not an anesthesiologist, and did not direct the anesthesiologist to place the psoas block, he did not have a role in the placement of the needle either for spinal anesthesia or the catheter for the psoas block. He states that it is the standard of care to place all patients undergoing a total hip replacement on anticoagulation therapy postoperatively to prevent the possibility of deep vein blood clot, and the anesthesiologist was aware of that. He further states it is the standard of care to place a psoas block for post-operation pain management in a patient receiving postoperative anticoagulation therapy. He discussed the risks of surgery with the woman as is his custom and practice, and advised of the risks of blood clot, lung artery blockage, death, infection, dislocation, and fracture, forming of bone tissues outside the skeleton, leg length inequalities, alignment issues, neurovascular injury, pain and stiffness. The orthopedic surgeon states he saw the woman every day in the hospital and her first complaint that she was unable to move her right lower extremity. He states his treatment was appropriate as he reviewed x-rays of the hip and a CT scan of the abdomen and pelvis, ordered pain medication and physical therapy. As an orthopedist, he states, he does not treat neurological problems such as foot drop, and the next day, called in a neurologist to evaluate her. He states he timely addressed the neurological complaint and did not fail to institute emergency measures, did not take improper corrective measures; and called in a specialist.

Based upon the foregoing, it is determined that the orthopedic doctor has not demonstrated legitimate entitlement to summary judgment dismissing the complaint. He does not state that he advised the woman of the possibility of bleeding from the therapy and thus that she received proper informed consent concerning the use of anticoagulant therapy. He opines that he timely and properly addressed the neurological complaint and did not fail to institute emergency measures, but does not state what the proper standard of care is for the neurological problem which the woman was experiencing and the time frame for such treatment, nor what his emergency measures were. Nor has he submitted the affirmation from an expert neurologist in support of his claim that his treatment of the woman’s neurological condition was timely and appropriate and the proper emergency measures to be taken. Further, he does not set forth the standard of care for a patient taking anticoagulation therapy and whether this standard was followed and the results of such treatment and testing. He does not state the proximate cause of the patient’s neurological injury and does not rule out that such injury was not caused by the surgery he performed, or that it was caused by any acts or omissions on behalf of the anesthesiologist.

The anesthesiologist has submitted the affirmation of his expert anesthesiologist who sets forth that he is a physician licensed to practice medicine in the State of New York and is board certified in Anesthesiology. Based upon his review of the relevant pleadings and bill of particulars, it is his opinion that he has become fully conversant with the allegations and opines with a reasonable degree of medical certainty that the care and treatment rendered by the accused anesthesiologist at all times comported with good and accepted medical practice without any deviation or departures there from, and that none of the care provided by the accused anesthesiologist contributed in any manner to the woman’s alleged personal injuries.
Based upon the foregoing, it is determined that the accused anesthesiologist has not demonstrated legitimate entitlement to summary judgment dismissing the complaint against him on the issue of liability and proximate cause as he has not addressed the issue of lack of informed consent and has not opined whether or not informed consent was provided to the woman concerning her anesthesia choices, risks, benefits and complications.

The hospital has submitted the affirmation of a physician duly licensed to practice medicine in the State of New York, board certified in neurology. It is his opinion with a reasonable degree of medical certainty that the care and treatment rendered at the hospital by its employees did not depart from good and accepted standards of medical care and treatment and there is no action, treatment, diagnosis, finding, study, recommendation, or care provided, or omission, which was the cause of, or a significant contributing factor to, any injury alleged to have been sustained by the woman.

It is hospital neurologist’s opinion with a reasonable degree of medical certainty that the staff of the hospital carried out all physician orders in a timely and appropriate manner; none of the orders made by the woman’s physicians were contraindicated by normal practice; the woman was appropriately monitored and observed; the chart is thorough and well-documented; the woman’s symptoms and complaints were timely and appropriately heeded and were relayed to her physicians in a timely manner and responded to timely and appropriately by the hospital; a neurologist was appropriately called and appropriate diagnostic studies were performed; and that none of the alleged acts or omissions of the hospital proximately caused or contributed to the woman’s injuries.

Based upon the foregoing, it is determined that the hospital has demonstrated a legitimate entitlement to summary judgment dismissing the complaint as asserted against it based upon the neurologist’s opinion.

There has been no affidavit submitted by the complainants to rebut the neurologist’s opinion demonstrating legitimate entitlement to summary judgment dismissing the complaint as asserted against the hospital on the basis that the hospital and its employees did not depart from accepted standards of care and that none of the alleged acts or omissions proximately caused or contributed to the woman’s injuries. Accordingly, the motion by the hospital for summary judgment dismissing the complaint is granted and the complaint is dismissed with prejudice as asserted against the hospital.

A doctor states he is a physician duly licensed to practice medicine in the State of New York and is a diplomat of the American Board of Anesthesiology and board certified by the American Academy of Pain. It is his opinion to a reasonable degree of medical certainty that during the hip replacement procedure, there were complications as a result of the negligence of the accused doctors which caused a bleed around the lumbar plexus which caused the woman to sustain a nerve root injury causing a foot drop, and there were numerous medical malpractice which caused the devastating injuries to the woman.

Based upon the foregoing, it is determined that the anesthesiology diplomat has raised factual issues concerning whether the woman was on an anticoagulant drug prior to surgery creating factual issues with regard to both accused doctors’ care and treatment, and whether she was taking the anticoagulant drug and when it was started. The anesthesiology diplomat further opines that the accused orthopedic doctor, as leader of the surgical team, deviated from the standard of care concerning positioning of the woman, proximately causing her injuries. Although a further affirmation has been submitted in the Reply papers in an attempt to counter some of the anesthesiology diplomat’s opinions, summary judgment may not be awarded where the parties adduce conflicting opinions of medical experts; when experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution. Additionally, an affirmation received in a Reply deprives the woman from responding to such affirmation, and all arguments in support of the doctors’ motion should have been made in the moving papers to establish legitimate entitlement to summary judgment. There are further factual issues concerning whether the level of the placement of the catheter could in fact proximately cause the injuries claimed. Accordingly, the motion by the orthopedic doctor, and cross motion by the anesthesiologist for an order granting summary judgment dismissing the complaint as asserted against them are denied.
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A Bronx man suffered serious as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury. As a result, the attending surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Manhattan Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

The man retained a law firm to investigate and initiate a medical malpractice action against the various physicians. Although the man’s counsel considered joining the Hospital physicians individually in the medical malpractice suit, for various reasons he decided not to join them and sent intent to sue only to the Hospital and Medical Center Regional and its physicians. When the complaint was filed, however, the Hospital was not named. During discovery, the man’s counsel realized that the Medical Center Regional’s defense was based upon the comparative fault of the Hospital and its physicians. At this point, the statute of limitations had expired, and the counsel realized the potential of a legal medical malpractice claim for failing to join them. The counsel contacted his insurance company. He also referred the man to a new counsel. The man settled with the Medical Center Regional and its physicians for $1,000,000, and then brought a legal medical malpractice action against his counsel and his firm, which the man’s insurance company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the aggregate amount applied. Specifically, the parties disputed whether the attorney’s failure to name the Hospital and each individual physician constituted independent wrongful acts or a single claim.

The man filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because his counsel committed multiple wrongful acts, he claimed that he was entitled to the aggregate limits. The counsel’s insurance company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act. Since there was only one claim, the man was entitled to only $250,000 in coverage. The trial court agreed with the man and on its motion for summary judgment, the court entered a judgment in favor of the man for the aggregate limits. The counsel’s insurance company appeals this judgment.

The insurance policy in question is a claims-made policy which covers claims made against the insured during the policy period. Specifically, the policy provides that it will pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period.

Claim means a demand received by the insurance company or an insured for money or services while wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an Insured.

The construction of an insurance policy is a question of law for the court. Such contracts are interpreted in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

The man contends the aggregate policy limit should apply where his attorney committed multiple wrongful acts by failing to join several accused parties in his medical malpractice action. Because each of these accused had separate insurance coverage available to pay a damage award, the man argues he had multiple claims against his attorney. However, the counsel’s insurance company asserts that the man has only a single claim because he suffered one injury – he did not receive his full recovery because the attorney failed to join all the proper accused parties before the statute of limitations tolled. Even if the failure to sue each accused is considered a wrongful act, the counsel’s insurance company argues these wrongful acts are related to the man’s sole medical malpractice claim against his attorney.

The counsel’s insurance company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. In this case, there was but one demand for money, namely the lost recovery because of the failure to join various other accused parties and thus one claim. Even if the man had multiple claims against his attorney the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The court considered whether two acts of negligence were related so that notice of the first act constituted timely notification of both alleged acts of negligence. The man’s first claim of insurance agency negligence was for the agency’s failure to procure primary insurance coverage. It then later claimed that the agency was negligent in failing to notify an excess carrier of a third party claim against the insured.

Courts have pronounced different analyses in determining what constitutes a related act. Under the analysis of the State Supreme Court, however, the question appears to be whether each of the claimed negligent acts contributes to, or causes, the same monetary loss. If the errors lead to the same injury, under the Supreme Court analysis, they are related. Under the analysis of the United States District Court, acts will not be related if they arise out of separate factual circumstances and give rise to separate causes of action.

In this case, the claim was for the entire amount of the man’s uncollected damages as a result of the failure to join several accused parties in the suit, and all of the acts of negligence caused or contributed to the inability of the man to collect the entire amount of his damages. Thus, the negligent acts were logically related in accordance with the policy definitions.

In a related case, the contractor attempted to argue that there were two claims because it had two sources of payment. Supreme Court rejected the argument and stated, that when, as in this case, a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained — there is a single claim under the attorney’s professional liability insurance policy. Applying that rationale to this case, the man retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible accused parties in his action. The attorney’s negligent omission may be considered multiple wrongful acts, but the man suffered only one injury — an award that does not represent the full extent of his damages.

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit “per claim” and not the aggregate limit applies in this case.
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This involves a case where the court denied the petition stating that petitioner was not eligible for an RSSL Sec. 607-b pension when she applied for pension for benefits.

Petitioner began working as an EmergencyMedical Technician (EMT) with the FDNY in 1992. She is a Tier 4 Member of NYCERS pension fund. In 1995, petitioner was involved in a line of duty ambulance accident, sustaining spinal injuries. As a result, petitioner was out of work on paid sick leave for approximately 18 months. When she returned to work, it was determined that she could no longer work on an ambulance because of her injuries. She was assigned to work as a dispatcher. Over time, her condition worsened and she developed severe pain and locking of her hands. Petitioner, on May 10, 2006, was diagnosed with bilateral carpal tunnel syndrome, disc herniations at C5-6 and L5-S1, left radiculopathy, tendinitis, fluid in the distal ulnar joint and bi-lateral ulnar neuropathy. Accordingly, on that day, petitioner stopped working for medical reasons and remained on an unpaid medical leave of absence. Then, on August 10, 2006 and September 28, 2006, petitioner underwent carpal tunnel release surgeries.

FDNY, by letter dated July 30, 2008, advised petitioner CARTER that because she had been absent and unable to perform her job since April 2, 2007, her employment was subject to be terminated on August 11, 2008.

Petitioner, in support of the instant petition, contends that her medical condition and history, as discussed above, establish that she was disabled as the result of a line of duty injury. Respondents, in opposition, argue that petitioner is not entitled to receive an RSSL § 607-b pension, since an applicant must still be employed in an eligible title when applying pursuant to RSSL § 607-b (a). Thus, since petitioner’s employment had been terminated as of August 11, 2008 and her application was not filed before that date, she was ineligible to receive RSSL § 607-b benefits.

RSSL § 607-b (a), which provides for a line of duty disability retirement pension, states:

Any member of the New York city employees’ retirement system who is employed by the city of New York or by the New York city health and hospital corporation in the position of emergency medical technician or advanced emergency medical technician … who … becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary.

The Court is compelled to conclude that because RSSL § 607-b (a) does not reference or incorporate the language of RSSL § 605(b)(2), petitioner in The Bronx is not entitled to the extended time to file as is provided in the latter provision. Accordingly, RSSL § 607-b (a) must be interpreted as written, applying only to “[a]ny member of the New York city employees’ retirement system who is employed by the city of New York or by the New York city health and hospital corporation in the position of emergency medical technician or advanced emergency medical technician [ emphasis added ].”

Thus, it follows that the Long Island Court has no authority to afford petitioner the relief that she seeks. In so holding, it is noted that any request for relief on the ground that the Legislature intended to provide better protection for EMTs who are injured in the line of duty would be better addressed by the Legislature. ( See Matter of Lidakis v. NYCERS, 27 Misc.3d 1150, 1157 [2010], which discusses the Legislature’s response to the Court of Appeals’ Roberts v. Murphy decision, with the amendment of RSSL § 607-b [L.2004, c. 725, § 1, eff. Nov. 24, 2004], to specifically provide that an EMT NYCERS’ member who makes an application for § 607-b retirement shall be entitled to invoke the medical review procedure provided for in RSSL § 605[e] ). This is also supported by the above quoted provisions of the SPD Booklet and by the retirement applications, as well as the general principle of law that provides th.at the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.
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A independent building and construction contractor was working for a construction corporation in a project in Panama City on September 3, 1985. He was at the office working on some paper work. While he was seated at his desk, he reached out to his left to a cubby hole near his desk for some more blueprints. As he reached for the blueprints he turned in his seat. He twisted his trunk and he could not move: hand outstretched, trunk twisted to the left in his seat. He remained there until his wife found him forty-five minutes later. An ambulance was called to rush the independent contractor to the hospital.

His wife took him to the emergency room where he was diagnosed to be suffering from paralysis from the neck down. CT scans were performed on him in Panama City and he was diagnosed with sudden quadriparesis (weakness in the muscles of the four limbs) of unknown origin. The doctor in Panama City opined that his injury was vascular in origin and it must have been a pre-existing vascular anomaly.

The Panamanian construction company, his employer, paid for his medical bills and paid for temporary partial disability benefits. When the man returned for further diagnoses and treatment in the United States, he consulted his general physician, the one he had been seeing for most of his adult life. His general physician referred him to a neurosurgeon who conducted more tests on him. His American doctor found that what happened to the independent contractor was spinal contusion. As the man turned and reached for the blueprints while he was seated, his spine was twisted out of shape and there was a momentary loss of blood supply to his spine. The momentary loss of blood supply to the spine resulted in lack of oxygen and thus, paralysis. The vascular disability resulted from the blood supply loss and the oxygen deprivation of the spine.

Physical therapy and medication were advised. A year after the incident, the independent contractor was still suffering from muscular weakness in all his four limbs but he was able to walk around with the aid of a cane. He was able to do very light work for a short time. The American neurosurgeon opined that spinal injuries heal very slowly and it may take two years before the true extent and nature of the independent contractor’s injuries and disabilities are.
Further MRI scans revealed that the acute quadriparesis occurred spontaneously and that the spinal cord in the neck, the upper and lower back was within normal limits. With the help of these medical findings, the American neurosurgeon ruled out pre-existing muscular anomalies. The damage to the membranes covering the spinal cord, the myelin, looked to be healing. The general physician of the independent contractor testified that the independent contractor did not have any history of back pain although he had a history of migraine headaches.

The deputy commissioner for compensation claims found that although the medical evidence regarding the independent contractor’s condition was largely conflicting, the evidence that the sudden loss of blood circulation in his spine was not due to a pre-existing medical condition. There was no known cause. The onset was sudden. The injury occurred while the independent contractor was at work and it was occurred as he was discharging his functions at work. Had he not been at work, seated at his desk and doing paperwork, he would not have reached out to get blueprints from a nearby cabinet and he would not have twisted his spine so as to cut-off the blood supply to his spine. It was the turning and bending motions while seated at his desk which caused the internal spinal injury to the independent contractor.
The commissioner’s order for the employer to pay temporary total and temporary partial disability benefits, medical bills and to furnish medical care and treatment to the independent contractor is upheld.

Doctors in The Bronx and Brooklyn are taking note.
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