Articles Posted in New York City

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This is an action to recover damages for personal injuries allegedly sustained by the plaintiff when her vehicle was struck by a vehicle owned and leased by the defendant Enterprise, and operated by the defendant Driver. The accident occurred on South Edgemere at or near its intersection with South Elmwood in the Town of East Hampton, Suffolk County, New York. By her bill of particulars, a rep said that the plaintiff alleges that as a result of said accident she sustained serious injuries including central posterior protruded disc herniation at C2-3, C3-4, C4-5; left paramedian posterior protruded disc herniation at C5-6 and C6-7; acute cervical sprain and strain with radiculitis; bilateral C5-6 cervical radiculopathy; aggravation of pre-existing spine injury to the lumbar spine; disc bulge at L3-4; disc bulge at L4-5 contacting left L4 nerve roots within the neural foramen; supraspinatus tendinosis in right shoulder; brachial neuritis; and tinitus in right and left ears. In addition, the plaintiff alleges that she was confined to bed from July 4, 2009 until August 4, 2009, except to attend medical appointments, and was confined to home from July 4, 2009 until September 29, 2009 and intermittently thereafter except to attend medical appointments. The plaintiff also claims that following said accident she was incapacitated from her employment as a director of resident relations in a company, as an assisted living facility, in Massapequa, New York from July 4, 2009 until September 29, 2009, from December 5, 2009 until December 9, 2009, and from December 30, 2009 until January 6, 2010.

A source said that, the NYC defendant Enterprise now moves for dismissal of the claims against it for failure to state a cause of action as well as for summary judgment based on 49 USC § 30106 (the Graves Amendment). Defendant Enterprise submits a faxed copy of an affidavit of its employee, that lacks an original signature. The Court considers said affidavit despite its defect. The said employee indicates in his affidavit that he is a regional risk supervisor for defendant Enterprise, and that the day before the subject accident, defendant Enterprise rented its vehicle, a Chevy vehicle, to defendant Driver who signed a rental agreement. He also indicates that a search of records related to said vehicle revealed no pre-accident complaints or evidence of any performance or maintenance problems, and that defendant Driver was not employed by defendant Enterprise on the date of the accident.

On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), a comprehensive transportation bill that included the Graves Amendment, was signed into law. The Act is now codified at 49 USC § 30106. The section is entitled “Rented or leased motor vehicle safety and responsibility”. “The section applies to all actions commenced on or after August 10, 2005, and has been enforced as preempting the vicarious liability imposed on commercial lessors by Vehicle and Traffic Law § 388”.

A rep said that defendant Enterprise established that it is an “owner (or an affiliate of the owner) engaged in the trade or business of renting or leasing motor vehicles. In addition, the employee demonstrated through his affidavit that the plaintiff’s allegations of failing to maintain the vehicle in a proper state of repair and respondent superior are unfounded such that there is no negligence or wrongdoing on the part of defendant Enterprise. Moreover, the plaintiff’s vicarious liability claims pursuant to Vehicle and Traffic Law § 388 as against ELRAC are barred by 49 USC § 30106. The plaintiff failed to raise any opposition warranting the denial of defendant Enterprise’s request. Therefore, defendant Enterprise’s is entitled to dismissal of the complaint as against it.

A Lawyer said that, the defendant Driver seeks summary judgment in his favor dismissing the complaint as against him on the ground that the plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.

The issue n this case is whether plaintiff failed to establish serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.

The Court said that, on a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102 (d). The defendant may satisfy this burden by submitting the plaintiff’s own deposition testimony and the affirmed medical report of the defendant’s own examining physician. The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers.

Insurance Law § 5102 (d) 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.”
“It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified, compared to the norms, and based upon identified objective tests”. “These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment”. The defendants must submit admissible medical evidence demonstrating that the plaintiff’s range of motion was not significantly limited in comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height.

For a Queens plaintiff to recover under the “permanent loss of use” category, he or she must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories, the plaintiff must provide either objective evidence of the limitation or loss of range of motion and its duration based on findings from an examination contemporaneous to the accident and a recent examination or the plaintiff must provide a sufficient description of the “qualitative nature” of his or her limitations, with an objective basis, correlating the plaintiff’s limitations to the normal function, purpose and use of the body part.

The defendant Driver relies on the affirmed medical reports of the defendants’ examining orthopedic surgeon, and examining neurologist. The report dated November 9, 2010 indicates that he examined the plaintiff on said date and performed range of motion testing of her cervical spine, right and left shoulders, right and left elbows, right and left wrist and hand, lumbosacral spine, and right and left ankle and foot using a goniometer. The doctor’s findings with respect to the cervical spine injury revealed decreased bilateral rotation of 30 degrees (normal 80 degrees), flexion of 10 degrees (normal 50 degrees), and extension of 10 degrees (normal 60 degrees), with no evidence of paracervical muscle spasm or atrophy. His findings regarding range of motion of the plaintiff’s lumbosacral spine injury revealed decreased flexion of 30 degrees (normal 60 degrees) limited by pain, and normal extension, bilateral lateral bending and bilateral rotation but with complaints of pain at the extremes of motion. The doctor stated that the plaintiff has evidence of symptom magnification based on her complaints of pain in her lumbar spine when he lightly touched the skin overlying her paralumbar muscles, her complaints of pain in her lumbar spine when he rotated her body at the hips while maintaining her lumbar spine completely stable, and her complaints of pain radiating from her head to her lower back when he tapped the top of her head. The doctor noted that there was no paralumbar muscle spasm or loss of normal lumbar lordosis and that straight leg raising was bilaterally full and pain free. In conclusion, the doctor opined that the plaintiff showed evidence of a resolved cervical hyperextension injury, resolved left foot contusion, resolved right shoulder strain, and resolved low back strain. He also opined that she had evidence of symptom magnification and noted that the range of motion examination is a subjective test under the voluntary control of the individual being tested. The doctor concluded that the spinal injuries appeared to be causally related to the subject accident, that the plaintiff had no pre-existing conditions affecting her recovery, and that she was presently able to perform the duties of her occupation.

The doctor indicated in his report that he examined the plaintiff on November 8, 2010 and found a normal neurological examination. However, he reported that the plaintiff’s spinal range of motion testing with a goniometer revealed lumbar flexion to 20 degrees (60 to 90 degrees normal), cervical flexion to 20 degrees (50 to 60 degrees normal), cervical extension to 20 degrees (40 to 60 degrees normal), and cervical lateral flexion to the left was 20 degrees (45 degrees normal) and cervical lateral flexion to the right was 25 degrees (45 degrees normal). The doctor also reported that the plaintiff needed effort to rotate to the left and rotated to the right 20 out of the maximum 80 degrees. He concluded his report by diagnosing cervical sprain injury superimposed upon cervical degenerative disc disease, ossified ligaments and congenitally narrowed spinal canal, and subjective headaches, “cervically mediated from spondylosis and sprain/strain.” He opined that there was no evidence of cervical radiculopathy, lumbosacral radiculopathy, or central or peripheral nervous system dysfunction and that the plaintiff’s reduced range of motion was secondary to spondylitic disease and diminished effort. He further opined that there was no causally related neurologic injury or impairment but that the cervical sprain appeared to be causally related to the subject accident, superimposed upon pre-existing degenerative changes, and that her lumbar condition appeared to be an entirely pre-existing condition.

Here, the Court held that the defendant Driver failed to meet his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The doctor reported the existence of significant limitations in the plaintiff’s cervical and lumbosacral spine range of motion more than a year after the subject. Although he stated that the plaintiff had evidence of symptom magnification and that range of motion testing is subjective, he failed to substantiate those conclusions with objective medical evidence. In addition, it appears that the doctor also found significant limitations in range of motion of the plaintiff’s cervical and lumbar spine, the extent of which is difficult to determine. He reported ranges of motion for the plaintiff’s lumbar flexion, cervical flexion, and cervical extension that were expressed in certain or definitive numerical degrees but he failed to provide the corresponding certain or definitive normal values and instead gave ranges or spectrums of degrees spanning 10 to 30 degrees for his normal standards of comparison. When a normal reading for range of motion testing is provided in terms of a spectrum or range of numbers rather than one definitive number, the actual extent of the limitation is unknown, and the Court is left to speculate. Furthermore, both physicians failed to address the plaintiff’s claim, as set forth in her bill of particulars, that she sustained a medically-determined personal injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary activities for not less than 90 of the 180 days immediately following the accident. Neither physician related his findings to this category of serious injury for the period of time immediately following the subject accident. Inasmuch as the defendant Driver failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiff’s papers submitted in opposition to his motion for summary judgment were sufficient to raise a triable issue of fact.
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First Case:

On 7 March 1991 and on 14 June 1991, the Family Court of New York County made a finding of neglect against the subject parents and ordered a year of minimal supervision by the Child Welfare Administration, respectively. An appeal from the order followed.

The court finds that the orders must be are affirmed, without costs.

As the Family Court Act provides, a prima facie case of abuse or neglect is established by proof of injuries sustained by a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child. Once a prima facie case is established, the burden of coming forward with the proof shifts from the petitioner to the parents to offer a satisfactory explanation to rebut the evidence of abuse.

Here, the court finds that the ruling of the Family Court that the subject child was neglected was supported by evidence and that he sustained a spiral fracture of his upper right arm while in the sole care of his parents. This injury, according to the expert testimony of two witnesses, would not have been caused by the child’s spina bifida. Further, while there was some testimony by the mother that the injury could have been caused by the infant’s two and one-half year old brother, other testimony demonstrated that it was unlikely that a two and one-half year old child would have the strength or dexterity necessary to inflict such an injury. Moreover, despite the overwhelming medical evidence that the child would have experienced extreme pain immediately after the injury, and the pain would have continued for several days, the mother testified that prior to the morning of 10 October 1989, when she brought the subject child to the Institute for an evaluation as to his spina bifida, she observed no swelling or discoloration of the right arm and no indication the child was suffering pain or discomfort. The uncontroverted medical testimony was that multiple signs of injury, including swelling, discoloration, lack of movement of the arm and pain whenever the arm was touched, would have been clearly apparent to the parents and they should have sought medical treatment sooner than October 10. Thus, the record establishes that the parents failed to take prompt and appropriate action to obtain medical treatment for the child after the injury to his arm was readily discernible. In addition, the Queens Family Court did not abuse its discretion in concluding the parents required the continued services of the agency and ordering a twelve month period of supervision. In any event, since the dispositional order has expired, the issue of the length of the supervision is now moot.

Second Case:

On 7 August 1991, the Supreme Court of Ulster County granted certain defendants’ motions for summary judgment dismissing the complaint against them. An appeal from the said judgment followed.

There are two actions involved which allege medical malpractice arising out of the labor and delivery of plaintiff at a Hospital in Ulster County on 16 January 1980. The first action seeks to recover damages for the pain and suffering plaintiff experienced during a prolonged and difficult labor, during the birth of her son, however, permanent injury is not alleged; she also seeks damages for the emotional distress allegedly incurred by her due to the condition of her infant; and includes a derivative cause of action on behalf of plaintiff’s husband. The second action was commenced on behalf of the infant seeking damages for injuries he sustained at the time of his birth. Nonetheless, the herein appeal is limited to the dismissal of the complaint in the first action.

Here, the court finds that plaintiff did not sustain any physical injury and by reason of the fact that her pain and suffering was not alleged to be permanent, but that the pain was associated with the childbirth process resulting from the prolonged labor and delivery of her son, it is not actionable. In view thereof, in the absence of an independent physical injury to plaintiff, her cause of action seeking recovery for emotional or psychic harm occasioned by the birth of her child in an alleged impaired state must also fail. Thus, with the plaintiff having failed to set forth a cognizable claim, the derivative action of plaintiff’s husband must also fail. On plaintiff’s claim that defendants have failed to support their motion for summary judgment with an affidavit of merit, the court finds this untenable. The evidence in the record clearly establishes as a matter of law that plaintiffs have no cognizable claim. Therefore, the Supreme Court correctly granted summary judgment to defendants dismissing the complaint in the first action. In sum, the judgment appealed is affirmed, with one bill of costs.
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In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant’s negligence were a substantial factor, it is considered to be a “proximate cause” even though other substantial factors may also have contributed to plaintiffs. In order to establish the third element, proximate cause, the plaintiff must show that defendant’s negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. Summary judgment is rarely appropriate in a negligence action because the issue of whether a plaintiff or defendant acted reasonably under the circumstance could rarely be resolved as a matter of law.

If it cannot be determined who the parties are who owed a duty to the plaintiff and what the defendants’ respective roles and responsibilities were, no determination as to negligence can be made based upon the evidentiary submissions and adduced testimonies.

Labor Law §200 provides in pertinent part that “All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places…. (Trbaci v AJS Construction Project Management, Inc, et al, 2009 NY Slip Op 50153U; 22 Misc3d 1116A [Supreme Court of New York, Kings County 2009). “New York State Labor Law §200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 880 NYS2d 227 [2000]). In order to prevail on a claim under Labor law §200, a plaintiff is required to establish that a defendant exercised some supervisory control over the operation (Mendoza v Cornwall Hill Estates, Inc., 199 AD2d 368, 605 NYS2d 308 [2nd Dept 1993]). Labor Law §200 governs general safety in the workplace, imposes upon employers, owners, and contractors the affirmative duty to exercise reasonable care to provide and maintain a safe place to work and is a reiteration of common-law negligence standards. Therefore, a Staten Island party charged with liability must be shown to have notice, actual or constructive, of the unsafe condition and to exercise sufficient control over the work being performed to correct or avoid the unsafe condition (Leon v J&M Pepe Realty Corp. et al, 190 Ad2d 400, 596 NYS2d 380 [1st Dept 1993]).

New York State Labor Law §240. Scaffolding and other devices for use of employees at section (1) provides “[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

“New York State Labor Law §240 (1) is applicable to work performed at heights or where work itself involves risks related to differentials in elevation”. Labor Law §240 (1) was enacted to “prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person, Labor Law §240 is intended to protect workers from gravity-related occurrences stemming from the inadequacy or absence of enumerated safety devices. The duties articulated in §240 are nondelegable, and liability is absolute as to the general contractor or owner when its breach of the statute proximately causes spinal injury.

The injury claimed to have been sustained by the plaintiff did not arise out of the effects of gravity within the meaning of Labor Law §240 and it is not alleged that something fell or that the plaintiff was working on an elevated work height when he fell (see, Auchampaugh v Syracuse University et al, 57 AD3d 1291 [3 rd Dept 2008]. In Masullo etal v City of New York, 253 AD2d 541, 677 NYS2d 162 [2nd Dept 1998], it was determined that falling into a manhole is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor law 240(1); to the contrary, it is the type of ordinary and usual peril a worker is commonly exposed to at a construction site. Section 240(1) is applicable to work performed at heights or where the work itself involves risks related to differentials in elevation. It is determined as a matter of law that the cause of action premised upon the violation of Labor Law §240 is not contemplated within the meaning of the statute as although this incident occurred while the plaintiff was walking on the ground at the worksite, there was no gravity related event wherein the plaintiff was working at an elevated height giving rise to application of Labor Law §240 to the facts in this action. It is determined that this is an usual and ordinary danger of a construction site rather than a special elevation-related hazard within the meaning of Labor Law §240.

Accordingly, the cause of action premised upon the defendants’ alleged violation of Labor Law §240(1) is dismissed as a matter of law as asserted against all the defendants.
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This complaint sets forth a first cause of an action sounding in negligence arising out of the care and treatment rendered to plaintiff wherein she sustained second degree burns to her feet while bathing in a tub on October 10, 2004 while a resident at Siena Village, owned by the a health system of Long Island, Inc. and located at Smithtown, New York. The defendant, was an employee of the facility and the personal care aide for the plaintiff when the spinal injury occurred. The plaintiff resided at Siena Village where she received custodial care and housing. The second cause of action is premised upon the alleged negligent hiring of defendant employee by the defendant health System of Long Island, Inc.

In the answer submitted by defendant employee, a cross-claim has been asserted against the co-defendant health System of Long Island, Inc. for indemnification and/or contribution. In the answer submitted by the health system, a cross-claim has been asserted for judgment over against “Kenneth Doe” who is not named in the complaint, and a second cross-claim for indemnification from defendant employee.

According to the court, the common-law right to indemnification exists pursuant to a contract implied in law and is rooted in equity; it is a device to prevent unjust enrichment. Implied indemnity is frequently employed in favor of one who is vicariously liable for the tort of another, but the principle is not so limited and has been invoked in other contexts as well. Nonetheless, an indemnity cause of action can be sustained only if the third-party plaintiff and the third-party defendant have breached a duty to plaintiff and also if some duty to indemnify exists between them”.

“Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss because he was the actual wrongdoer. The right to indemnification may be created by express contract, but the contract is often one implied by law to prevent an unjust enrichment or an unfair result. In some instances the law imposes liability on a person who has in fact committed no actual wrong, but who is held responsible for a loss as a matter of social policy because he is in a position to spread the risk of loss to society as a whole.

Where one who has committed no actual wrong is held vicariously liable for the wrongdoing of another, he has a right to indemnification from the actual wrongdoer. Mere use of the term indemnification’ is insufficient to evade the bar of N.Y.Gen. Oblig. Law §15-108. A proper basis for the claim must be stated. If there is actual wrongdoing by the person seeking to assert an indemnification claim, that claim is not viable” (County of Westchester v Welton Becket Associates et al,102 AD2d 34, 478 NYS2d 305 [2nd Dept 1984]).

In the instant action it has not been demonstrated that there was a duty to indemnify as relates to the co-defendants nor has it been demonstrated that CHSLI is vicariously liable for the actions of Joanne Stokes.

Accordingly, that part of motion (002) by defendant employee which seeks dismissal of the second cross-claim which seeks indemnification, asserted by co-defendant health system against her, is granted and the second cross-claim for indemnification asserted by defendant health system is dismissed with prejudice.

Turning to motion (003) wherein the Health System of Long Island seeks summary judgment dismissing the complaint, it is determined that the health system has not demonstrated prima facie entitlement to summary judgment dismissing the complaint.

The moving papers raise further factual issues in that an employee estified that she notified the supervisor of the excessively hot water and fluctuating water temperature, and he denies ever having been notified of the same. Thus there are factual issues raised in the moving papers submitted by defendant health system which preclude summary judgment.
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On 1994, a man was admitted to a NYC hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.

Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.

In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.

Consequently, the Staten Island trial judge ruled that the man’s injury was of such a nature that a reasonable person would question why it had happened during that type of procedure. The court additionally found that the hospital and the nurse would be within the zone of anticipated targets for a lawsuit. As a result the trial court opined that the man was on notice of his injuries and of the identity of the potential opponents.

The evidence shows that the man did not discover that the hospital and the nurse potentially shared fault in the injuries until when the physician answered the complaint and raised the negligence of other hospital employees as an affirmative defense.

Based on records, the legislative policy underlying the medical malpractice area supports the first decision of the case. In an effort to foster full investigation on the claims, promote pre-suit settlement of claims and prevent the filing of baseless litigation, the legislature enacted the law, which requires a potential complainant to conduct a thorough pre-suit investigation of the medical viability of a malpractice claim.

In the case, the man did begin an immediate investigation. However, the hospital’s and the nurse’s potential responsibility did not come to reveal until the physician answer the complaint and state his deposition. The man brought his claim a little more than a year following receipt of the initial indication of the hospital’s wrongdoing and a mere three months after the information was confirmed in the physician’s deposition. The court believes that the timing complies with the applicable law of limitations. The suit was brought within two years of the time the man first learned of the possible negligence of the hospital and the nurse, and within four years after the incident.

Consequently, the court finds out that trial court erred in granting the decision of dismissal based on the law of limitations and the decision is hereby reversed.
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On March 16, 2003, two cars were involved in a head-on collision in an expressway in Brooklyn, New York. Both the drivers of the two cars claimed damages for serious spinal injuries they allegedly sustained. Both claim that they lost the function of their lumbar or cervical spine. Both claimed bulging discs at the cervical spine, herniated discs at the lumbar spine, sprain and nerve damage. The drivers sued each other as well as their insurers for damages.

Both submitted magnetic resonance imaging scans which their medical experts used as basis to find that there were degenerative changes in the cervical and lumbar spine which show herniation (swelling).

However, the medical reports issued by the examining neurologist at the time of the accident only found the two drivers to be suffering from cervical and thoracic spinal sprain and right shoulder sprain. In the weeks that followed the accident, the same attending neurologist made follow-up reports of the development of the injuries sustained by both the drivers and reported that the spinal sprains have resolved themselves. Even the sprain in the right shoulder and right arm were also resolved. This is evidence, according to the insurers, that neither driver sustained serious injury such that they can be compensated under the Insurance Law. There is no evidence that links their injuries as caused by accident.

For their part, the drivers both answered the contention of their respective insurers that the injuries sustained by them were not serious injuries. They both claimed that at the time of the accident, their injuries were “serious” enough to cause them pain and to cause them to refrain from their normal activities. They could not go to work and had to rest in bed. They both claim that is only thanks to rigorous physical therapy. They produced authenticated medical records from the neurologists and radiologists they consulted who all opined that the bulging and swollen discs of their cervical and lumbar spine were all directly caused by the accident.
The insurers filed motions for summary judgment asking that the complaints against them be dropped. They both claim that while both the drivers sustained injuries as a result of the accident, their injuries may not be serious injuries as defined by the Insurance Law such that the insurers cannot be made liable to pay therefor.

The only question before the trial court was whether or not the summary judgment should be granted and the case against them be dismissed. The trial court granted the summary judgment. Both drivers then appealed.

Upon appeal, the only question before the Court is whether or not the order granting the motion for summary judgment was proper.

The Court held that the insurers gave acceptable preliminary proof that the two drivers did not sustain a serious injury as it is defined under the Insurance Law. The drivers have succeeded in proving that they both suffered from bulging or swollen spinal discs. However, swollen spinal discs by themselves cannot be considered as acceptable evidence of a serious injury.
Both the drivers have to submit proof that the swollen spinal discs constitute serious injury that would disable them from doing their usual work and daily activities. The Court held that when they submitted scans and reports of their own physicians, the two drivers have raised a material issue of fact that has to be tried. That is to say, both the drives were able to submit evidence that raised an issue of fact which a jury alone can determine.

Thus, the Court remanded the case for further proceedings to determine the material issue of fact raised by the two drivers.
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A NYC eighteen-year old resident of an apartment building was walking along the grounds of the apartment building in Florida when he met an accident. He lay on the concrete pavement, unable to move because of a spinal injury. A few minutes later, an employee of the apartment owner was making his rounds of the apartment. He saw the eighteen- year old sprawled on the pavement and thought that he was unconscious due to a drug overdose or because he was drunk. He shook the eighteen-year old and found him to be conscious. The employee told him that he will move him to a more lighted area so that he can help him. The eighteen-year old protested, asking the employee not to touch him or to move him as his spine may be broken. The eighteen-year old protested continuously but the employee did not heed his protests, he dragged the eighteen-year old near the entrance of the building. He then called emergency services who rushed the eighteen-year old to the hospital. When the police and emergency services arrived, the employee told the police that he moved the eighteen year old because he thought that he was just passed out because he was drunk or overdosed from drugs. He had no idea he was injured. The incident resulted in the eighteen-year old being disabled due to quadriplegia or paralyzed from the neck down.

The eighteen-year old then sued the Westchester apartment owner and his insurer. He did not include in the suit the employee of the apartment owner. He wanted to call him as an adverse witness because the employee made inconsistent statements before the police (at the time of the incident) and then when he was deposed (before the trial) which testimonies and statements totally contradicted his testimony at trial. The trial court refused the eighteen year old’s request to call the employee as an adverse witness. The trial court held that there was a question as to whether the employee was really employed by the apartment owner; the trial court also held that the employee could not be called as an adverse witness because he was not a party to the case or listed as a party defendant in the damage suit.

The apartment owner and the insurer based their defense on the Good Samaritan Act. They claim that the employee was immune from a suit in damages because he was only trying to help. Under Florida Law, bystanders who help those who were injured cannot be sued for damages if the person they aided suffered injury in the course of being rescued or aided. They also claimed that even if they were found to be liable the amount of lost earning capacity of the eighteen year old cannot be determined because the eighteen-year old was a career criminal who had no real job or job prospects as he dealt in drugs and petit larceny.

The trial court also refused to allow the testimony of the expert witness for the eighteen year old. The proposed expert testimony was from a doctor who had experience in rehabilitation medicine specializing in those with spinal injuries. He treated and examined the eighteen-year old and supervised his physical therapy. His testimony was proffered but it was not admitted as evidence for the eighteen year old who tried to prove that it was not the injury that caused the quadriplegia but it was the dragging of his injured body down the pavement from where he was injured to the entrance of the building that resulted in his disability.

The jury found for the defendant apartment owner and insurer, claiming that they had no liability to pay damages to the eighteen year old as their agent merely tried to help him. The eighteen-year old appealed the jury verdict for the apartment owner.

The only question is whether or not the jury verdict for the apartment owner and the insurer are errors which can be cured by a re-trial.

The Court held that the trial court erred in not allowing the employee to be examined by the eighteen year old as an adverse witness. The employee, if he were truly an employee of the apartment owner instead of merely a bystander has interests that were adverse to that of the eighteen-year old. To protect his job, he would have to testify favorably to his employer. The employee, if he is not really an employee, may also be examined as an adverse witness because he made prior inconsistent statements to the police and then on deposition. The eighteen-year old had the right to examine the credibility of the employee and to sift through his varying pronouncements which were true and which were not.

The trial court erred in not allowing the doctor to testify as an expert witness. He is board-certified as a physician specializing in rehabilitation of patients with spinal injury. He may have examined and treated the eighteen-year old and can thus give testimony of the injuries he diagnosed and the treatments he prescribed. But he is also an expert in his field and his testimony as an expert should have been admitted for the benefit of the jury who were laymen and unable to know from their common everyday experience what spinal injury are all about.
The evidence regarding the drug use and drug dealing of the eighteen-year old are relevant not to prove his credibility as a witness about his injures (the medical evidence proves his injuries). They are relevant to prove his earning capacity or lack thereof. At the re-trial, the jury should be instructed to regard the evidence of former drug dealing and petit larceny when the eighteen year old was only fourteen as evidence of his earning capacity and not evidence of his injuries or of his credibility to testify as to his injury.

As for the apartment owner and his insurer, they can surely hide behind the provisions of the Good Samaritan Act but only if they can prove that the help they gave to the injured eighteen year old was requested by him and was not objected to by him. There is evidence that the eighteen year old continuously objected and protested his being dragged and moved from one place to another. His protests and objections went unheeded. For this alone, the Good Samaritan defense cannot be availed of. There is also the issue (which was not taken up) regarding the liability of the apartment owner and his insurer for injuries to third persons while on their property. Their liability in this regard cannot be ignored as it was.
The Court granted the eighteen-year old a re-trial.
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The ability to prove that an injury that has been sustained in an automobile accident is serious under the essential elements of the laws of New York can be a daunting experience. The law is clear on what is considered a serious personal injury. In order for a person to recover damages associated with an accidental injury, the person must be able to present medical evidence that demonstrates that the person has a loss of use of a limb, a serious spinal injury, or a serious brain injury. The mere contention that an injury is serious and painful does not constitute a serious injury under the law. There must be some corroborating medical evidence of the injury. It is not even sufficient to bring in a doctor who is willing to testify that the person has experienced a serious injury that is life changing. That doctor must be able to show that he performed or administrated accepted medical tests that demonstrate that the injury is severe enough to be life altering.

That means that the injury that is sustained must be so severe that the person injured is not able to do the things in life that they did for enjoyment or work before the accident. The problem is that many doctors do not agree on diagnoses. Anyone who has gone to numerous doctors and had each one give them a different diagnoses understands this problem. It is frustrating when it is not something that will be presented in court. It is unnerving when it is. That is a major problem for anyone who has suffered a life changing accident only to have to find a doctor who is willing to interpret the test results to a court in verification of what the patient already knows to be true. One case of this nature was commenced on December 16, 2008.

That was the date that an injured man filed his personal injury lawsuit in New York. He was injured in a motor vehicle accident on January 9, 2008. His car was stopped at a traffic light when another car struck it with enough force to knock it off of the roadway and into a fire hydrant. The man maintained that he sustained serious spinal injury, and injury to his right knee that has resulted in an altered gait and a limp. He also maintained that he received a head injury that has left him with headaches, dizziness and post-concussion syndrome. He presented numerous medical records, x-rays and MRI reports to support his allegations.

The Brooklyn insurance company for the man who hit him requested that he be examined by a doctor of their choosing. That doctor stated that there was nothing wrong with him. That doctor stated that he did not have an altered gait and that his range of motion was normal. The insurance company contends that the spinal complaints that the man has are not related to the automobile accident at all, but rather to an incident that happened in 2001. In 2001, the man was shot in the back. As a result of that incident, the man still has a bullet in his back and that bullet is located in the left side of his colon where it presses on the nerves that control his left leg. He stated that the second bullet that hit him was removed by the hospital on the date that he was shot. The CT scan presented as evidence, however, showed that there was a bullet lodged in the region of his L5-S1 region of his back that has caused the machine to not be able to evaluate the underlying injury. The doctors stated that impingement cannot be excluded. Based on the evidence presented and the fact that it appears that the man still has a bullet wedged into his back, the request by the insurance company for summary judgment releasing them from liability is granted.
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On July 23, 2007, a man was sitting at the traffic control light located at Greenwich Street and Jerusalem Avenue in Nassau County, New York when another vehicle hit his. The other vehicle made contact with his vehicle in a same direction side swipe manner. As the vehicle was driving past his in the same direction, it swerved and the offending vehicle swept up the passenger side of the man’s car from the rear passenger side area to the front. The man filed a personal injury and 90/180 case against the driver of the other vehicle.

In order for a person to claim a serious person injury under the auspices of the New York Insurance Law, they must be able to prove that they suffered an injury that was invasive enough to alter their normal everyday lifestyle. In order to make that statement, the injured person must be able to demonstrate through medical records that they have sustained either a permanent loss of use, or partial percentage loss of use of a member of their body.

Alternatively, they can show a brain injury or spinal injury that is severe enough to have altered their lives and receives treatment. They may also file a 90/180 claim that contends that although they recovered from their injuries, they were incapacitated by them for 90 out of the 180 days that immediately followed the accident. It is important that the injured person is able to demonstrate that they have been continually under the care of a doctor from the time of the accident until the time that they filed their suit. The court has been known to dismiss a gap in treatment for legitimate reasons if it can be properly documented.

In this case, the driver of the other car filed a motion for summary judgment asking the court to dismiss the case. The other driver contends that the man did not demonstrate proper documentation showing that he had sustained a serious spinal injury under the guidelines of the New York Insurance Law § 5102(d). While he submitted several test results, they were missing original signatures and failed to have sworn doctor testimony upholding them. Further, the driver of the other car demonstrated that the man claims to have been disabled by the accident, however, there is evidence that he took a job at UPS four months following the accident date. Since that time, the man has not been seen by a medical professional for any of his injuries. Because, the other driver contends that the man has not proven his case under the statute as either permanent, or as a 90/180, the man asks the court to free him from liability and dismiss this case as frivolous.

The court reviewed the case and examined all records associated with it. The court is reluctant to grant summary judgment dismissing a case because New York Law considers that a person has a right to argue their case in court. When there is even the slightest chance that there may be arguable points of fact, then the case will not issue a summary judgment and will forward the case to court for trial. In this case, although the man had provided doctor’s letters, they were not sworn documents. The primary test result that he was depending on to make his case, was not signed or properly admitted. Further, the fact that the man had obtained employment within four months of suffering his injury and stopped all medical treatment for a period of two years before filing this claim is suspect. The man provided no explanation for his failure to obtain treatment for two years following the accident. With these facts in mind, the court approved the other driver’s request for summary judgment and dismissed the case against him.
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When a person decides that they want to file a personal injury lawsuit in New York, they are required to submit proof to the courts that their injury is a severe injury as defined by the requirements of Insurance Law § 5102. That means that they must also show that they meet the requirements of Insurance Law § 5104 as it regards non-economic loss. When the elements of the injury are not in compliance with these codes, then the person will not be allowed to file the suit. A lawsuit in New York, alleging a personal injury may not be filed if the injury is merely an inconvenience. In order for an injury to be determined severe it must render that person unable to work for a substantial amount of time and/or prevent that person from continuing to work in their chosen career field.

The injuries that are defined as serious injuries are spelled out in the law. They are defined as injuries that deprive a person of the use of a limb, or actually results in the amputation of a limb. Some spinal injuries and brain injuries may also qualify as severe. In order for the spine injuryor brain injury to be categorized as serious, it must be so pervasive of an injury as to render the person unable to function on a daily basis as they were accustomed to performing. The ability to continue participating in daily activities that they were able to participate in prior to the injury would mean that the injury will not be considered a severe injury under the law.

In October of 2009, a woman was involved in a traffic accident at the intersection of Bellmore Avenue and Sunrise Highway. The accident occurred in Nassau County in the State of New York. At the time of the accident, the police determined that the vehicle that hit hers was at fault in the accident. At the accident scene, the woman left her car, walked around the scene, and was able to drive her vehicle to work after the accident. She later went home and stayed out of work for one day. She started to see a chiropractor following the accident because she claimed that she was having headaches and pain from personal injury that she incurred as a result of the accident. She was x-rayed by the chiropractor and went to see him two to three times a week for several months into the winter of 2010.

In the winter of 2010, she started physical therapy. She attended physical therapy sessions two to three times a week until she stopped in the summer of 2010. At this point, she saw an orthopedic doctor several times in an attempt to get relief from her symptoms. Following 2010, she stopped receiving treatment for her injuries and continued on with her daily routines. In accordance with the laws of New York, although her x-ray report and follow-up doctor reports indicated that she had sustained a spinal injury that involved compression of her spinal column and several dislocations of vertebrae, she testified in court that she was only in bed from the injury for one day. She also testified that overall, she has only missed less than a week of work obtaining treatment for her injury. Because the statute requires that the injury be severe and pervasive enough to prevent the patient from performing daily activities that she did before the injury, the woman has effectively ended her own lawsuit by stating that she was only inconvenienced one week because of her spinal injuries. The court in review of this testimony determined that the woman did not suffer a severe injury as defined by the law. Her case was dismissed.
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