Articles Posted in Westchester County

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This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident on January 19, 2008 within a private parking lot on route 107, near its intersection with Lewis Street, in the town of Oyster Bay, Nassau County, New York.

A said that, in his bill of particulars, plaintiff alleges that he sustained the following injuries which are alleged to be permanent: Cervical muscle spasm, cervical radiculopathy, neck painwith upper extremity weakness, lumbar radiculopathy, right and left shoulder pains with numbness and tingling, decreased range of motion of the cervical spine, low back pain with lower extremity weakness, subluxation of the cervical spine and lumbar spine, headaches, muscle spasm of the lumbar spine, decreased range of motion of the cervical and lumbar spine injury, mid back pain, dizziness, inability to sit or stand for prolonged periods of time, difficulty performing everyday activities such as bending, lifting, and sitting necessity for prescribed pain medications, necessity for physical therapy, sleep disturbances, cervical spine tenderness with restricted range of motion, lumbrosacral spine tenderness with restricted range of motion, necessity for extended physical therapy, unable to perform household chores and loss of enjoyment of life.

Plaintiff was involved in a prior motor vehicle accident in 2002 whereby he injured his neck, lower back, and shoulders. A Manhattan doctor said that, defendant claims that the injuries plaintiff complains of in this accident of 2008 are not causally related to the 2008 motor vehicle accident, but rather are permanent injuries resulting from the 2002 accident. Defendant has presented objective medical testing from 2002 in order to establish the preexisting injuries at the time of the 2008 accident. The MRI report dated February 25, 2002 indicated posterior disc bulge at L3-L4 and at L5-S1 impinging on the spinal injury canal. The report of August 29, 2002 indicated posterior disc bulges at C-5-6 and at C6-7 impinging on the anterior aspect of the spinal canal.. Therefore, plaintiff had bulging discs with impingement six years prior to the subject accident. Further, the nerve conduction examination performed on November 4, 2002 revealed abnormal results. The examining doctor states that “any scores falling in the abnormal range recognize a possible entrapment of the nerves and indicate that a problem exists.” The electromygram exam performed by plaintiff’s physician on November 20, 2002 after the prior accident was abnormal showing a mild right acute C6 radiculopathy. More recently, plaintiff’s treating Westchester chiropractor, issued a report dated March 16, 2010 in which she opined that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the accident on August 24, 2002. Defendant claims that the evidence demonstrates that any permanent and consequential injuries and plaintiff’s inability to perform activities of daily living were a result of the prior accident in August 2002 and not the subject accident on January 18, 2008.

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A woman took the bus. As she was about to go down from the bus, while walking down the aisle toward the exit, she slipped on something slippery on the floor. She had a slip and fallwhich landed her on her bottom. She sustained spinal injury, specifically in her lumbar spine and cervical spine.

The Staten Island woman sued the transit authority which operated the bus along with the city government which owned the bus. After the depositions were taken and discovery was closed, the transit authority filed a motion for summary procedure asking that the woman’s complaint be dismissed for failure to show that she sustained a serious injury.

The woman opposed the motion for summary judgment arguing that this is not the usual motor vehicle accident and that she was not suing merely under a “no fault” law. She claims to have raised issues of negligence. She claims that the transit authority and the city government did not exercise reasonable care in keeping the buses safe for passengers and clean enough so that passengers would avoid a slip and fall while riding on the bus.

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A forty-seven year old Staten Island warehouseman for a closet manufacturing company was operating a forklift at the workplace. This was his regular duty for the past three and a half years of employment there. Also as part of his regular job, he lifted boxes to and from the stocks. On May 16, 1996, the warehouseman was unloading a pallet of boxes. A box fell from the pile and hit him on the back of the head. He experienced pain and the weight and sudden impact of the box caused him to fall on his knee. After that incident at work, he began to experience backand neck pain.

He went to see a Westchester neurosurgeon to determine the injury he suffered and to get a diagnosis of what caused his pain. The employer and the servicing agent agreed to compensate the warehouseman and to pay him temporary disability benefits. Medical tests were conducted and the neurosurgeon discovered that the warehouseman had a preexisting medical condition called spinal stenosis. It is a kind of arthritis of the spine. It is congenital and degenerative. A traumatic injury is sometimes the first sign that a person suffers from spinal stenosis. Here, when the box fell on the warehouseman’s head, his back was twisted and the nerves in his lower spine bruised against his bone causing pain.

The neurosurgeon recommended treatment through physical therapy and restricted his lifting of heavy objects at work and in daily activities. The warehouseman’s back and neck pain was not resolved so the neurosurgeon recommended that he go on a diet to lose excess weight to relieve the weight carried by his spine but still the pain was not alleviated. In 1997, a year after the accident, the neurosurgeon recommended surgery to repair the damage to his spine.

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A Brooklyn bagel shop clerk met an accident while driving near the corner of West Merrick and Rockaway Avenue: her car collided with another car on August 21, 2007. As a result of the accident, the bagel shop clerk missed two weeks of work. The pain she felt prevented her from lifting baskets of bagels as she had been doing previous to the accident. She was unable to stand behind the counter for long periods of time as she had been doing before the accident. She held down another part-time job at a clam bar and was also enrolled as a full time college student. She missed two weeks of classes after the accident and she had to stop working at the clam bar.

The owner of the bagel shop allowed the clerk to reduce the number of hours she had to work. She also allowed her more frequent breaks and excused her from having to lift heavy objects while on duty. Still, the woman was unable to continue working full time: she began working part-time and clocked only eighteen hours of work every week. The pain in her neck and back intensified and she resigned from her employment.

She received treatment consistently since the accident and stopped treatment and therapy only when her “no-fault” insurance ran out and she could no longer afford the treatments and therapy. She filed a case in damages seeking compensation for her spinal injury under the Insurance Law. She claims that the use of her cervical spine and lumbar spine has been significantly limited; she also claimed that the spinal injury she sustained resulted in non-permanent impairment which prevented her from performing all the activities of daily living within ninety days from the accident.

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Brooklyn Claimant sustained injuries arising out of and in the course of her employment on two occasions. First was in December 1988, when claimant injured her neck, back, shoulders, knee and left elbow, and the second was in September 1989, after claimant had been released to return to full-duty work, when claimant injured her fingers. Since her first injuries, claimant has been treated by a doctor, doctor-one, who is a board-certified orthopedic surgeon. Doctor-one diagnosed claimant as suffering from cervical and lumbar spondylosis or arthritis.

According to doctor-one, claimant had suffered from a pre-existing arthritic condition which was exacerbated by her work related injury; that, because of claimant’s arthritis, she was not going to get better, that is, she would continue to experience good periods and bad periods, as she had for some time; that there was little that he could offer claimant in the way of new treatment. Doctor-one prescribed physical therapy which had included traction, heat, ultrasound and electrical stimulation for some time, for temporary relief of claimant’s symptoms; and recommended that claimant continue to receive physical therapy as needed. However, according to the claimant, the physical therapy prescribed by doctor-one provided only temporary relief from her symptoms. Thus, she wanted to be treated by doctor-two, a chiropractor, by reason of the fact that her husband had been treated successfully by the said doctor, and she felt that doctor-two could achieve similar results with her. Claimant then filed a claim seeking authorization for a chiropractic treatment to be conducted by doctor-two.

Consequently, doctor-two was called to testify. According to doctor-two who is a chiropractic physician, claimant is suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar strain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, doctor-two concluded that claimant was a candidate for chiropractic therapy which basically consists of adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints; that he would use traction in the low back, exercises and some electrical stimulation. Doctor-two opined that chiropractic treatment would be beneficial to the claimant because the key thing is to get the vertebrae that are out of place, or the subluxated, back into their proper respective position and functioning again, and he saw nothing about claimant’s condition to suggest that it would be inappropriate to treat her in such a way.

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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.

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This is an action to recover damages for personal injuries allegedly sustained by plaintiff wife as a result of a motor vehicle accident that occurred on the westbound Long Island Expressway, approximately 500 feet west of South Oyster Bay Road, in the County of Nassau. New York on May 13. 2008. The accident allegedly occurred when the vehicle operated by defendant and owned by the other defendant struck the rear of the vehicle operated by plaintiff husband while it was stopped in traffic. Plaintiff at the time of the accident was a front seat passenger in the vehicle operated by her husband,. By her bill of particulars, plaintiff alleges that she sustained various personal injuries as a result of the subject accident, including straightening of the cervical and lumbar curvature; disc bulges at levels C3 through C6 and level L4-L5; vertebral subluxation complex; and derangement of the left shoulder. Plaintiff alleges that she was confined to her bed and home for approximately two days immediately after the accident. Plaintiff further alleges that she was totally incapacitated from her employment as a registered nurse at the Hospital for approximately three days following the accident and continues to be partially incapacitated from her employment to date.

A Westchester doctor said that, defendants now move for summary judgment on the basis that plaintiffs alleged spinal injuries do not meet the “serious injury” threshold requirement of Insurance Law § 5102(d). In support of the motion, defendants submit a copy of the pleadings, plaintiffs’ deposition transcript, and the sworn medical reports of the doctors. At defendants’ request, a neurologist, a chiropractor, and a physiatrist licensed in medical acupuncture, conducted independent examinations of plaintiff on September 23, 2008. A Lawyer said that, plaintiff opposes the instant motion on the ground that defendants failed to meet their burden of establishing that her injuries do not come within the meaning of the serious injury threshold requirement of Insurance Law § 5102(d). Alternatively, plaintiff asserts that she sustained spinal injuries within the “limitation of use” and the “90/180 days” categories of serious injury as a result of the accident. In opposition to the motion, plaintiff submits her own affidavit, the affidavit of her treating chiropractor, , and the sworn medical reports of her doctors.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

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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.

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The Department of Children and Family Services (DCF) appeals the trial court’s final judgment against DCF finding DCF negligent and awarding the complainants as guardians and adoptive parents of a child, the sum of $26,849,849.06. DCF raises several issues on appeal that the Appellate Court affirms without comment. The Court of Appeals addresses only DCF’s argument that the complainants failed to prove a legitimate case of negligence. It affirmed the final judgment because the complainants presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the spinal injuries sustained by two-year-old child.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case when representatives at the Miami Children’s Hospital (MCH) called the DCF hotline because the child’s biological mother failed to come to the hospital on December 8, 2000, the date of the child’s discharge. A Suffolk woman, who is the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. She testified that she was concerned that the mother did not show up to the hospital on the date of the child’s discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while the child was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed the investigator that the child did not appear very bonded to the mother. In her testimony, the investigator expressed concern because the child’s x-ray results showed a fractured clavicle, for which the mother had no explanation. The investigator also testified that the mother’s boyfriend was living with the mother and the child, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, the investigator, the mother, and the head of the child advocacy team (CAT) at the hospital met at the hospital on December 11, 2000. The head of CAT testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although the CAT head testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that the child is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing. The Westchester investigator admitted in her testimony that the CAT head advised her that a home study should be completed first before the child was returned to her home. The investigator also testified that after meeting with the CAT head, she suspected physical abuse.

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This involves a case where the court denied the motion of the defendants for summary judgment to dismiss the case against them.

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus driven by its employee made contact with a motor vehicle driven by defendant driver and owned by owner. Plaintiff was a passenger in defendant driver’s vehicle. By decision and order dated September 16, 2008, the court granted defendant owner’s motion to dismiss the complaint and any cross claims in this action as against it. (Martorella Affirm, dated 3/18/11, Ex E.)

The bill of particulars alleges that, as a result of this alleged car accident, plaintiff sustained herniated discs at C4-C7, and L5-S1, and injuries to his right hip, right arm, right shoulder, neck and back, some of which are believed or may be permanent in nature. (Martorella Affirm, dated 3/18/11, Ex C [Bill of Particulars ¶ 6].) In August 2008, plaintiff, who was represented by a law firm, apparently decided to represent himself. (Martorella Affirm, dated 3/18/11, Ex D.) Plaintiff testified at his deposition that, at the time of the accident, he was employed by Gotham Registry, a nursing agency, working per diem as a licensed nursing assistant.

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