New York Car Accident Lawyer Blog

On June 10, 2007, a woman, driving a Nissan was rear-ended by a BMW as it was stopped at the intersection of Merrick Road and East Shore Drive in Nassau. As a result of this car accident the woman sustained a spinal injury: she had swollen discs and a severe sprain of the lumbar spine. She asserts that two weeks after the accident occurred, she was ordered to rest in bed by her doctor. She was also confined to her home and could not go to work until after another four weeks.

She claims that after the car accident, she could no longer play volleyball or do gardening. She cannot stand or sit for more than thirty minutes. Fifteen months after the accident, the woman joined a local gym where her favourite workout was on the recumbent bicycle.

The defendant owner and driver of the BMW that allegedly rear-ended her Nissan filed a motion for summary judgment. He claims that the complaint should be dismissed because the woman failed to state that the spinal injury she sustained is a serious injury. She also failed to state which classification of serious injury she falls under. There are five categories of serious injury under the Insurance Law: death, dismemberment, significant disfigurement, fracture or loss of a fetus, total loss of use of a body organ, function or system.

The Suffolk owner and driver of the BMW asserts that the woman did not suffer from a permanent limitation of the use of her spinal or cervical spine. He submitted the medical records from the hospital emergency room and the initial findings at the time of her admission into the hospital right after the accident and these do not show any physical limitation or loss of range of motion. The orthopaedic surgeon concluded that the range of motion tests he conducted on the woman showed that her ranges of motion were within normal range. He also made a finding that the pain she feels and the spinal injury she complains of may as well be caused by a genetic condition (brittle bone disease) that has largely been undiagnosed. His findings also state that the woman suffered sprain of the muscles along the spine but that these will resolve themselves and have resolved themselves in time.

The woman then submitted her own affidavit. Her opposition to the motion for summary judgment includes her claim that even when the initial findings at the time of the accident show that there was no permanent limitation to the use of her cervical and lumbar spine, still, the findings of the doctors much later which can prove that her spinal injury was caused by the accident is also sufficient to raise a material issue of fact.

The woman submitted the affidavit of her chiropractor who treated her once immediately after the accident and the second time four years later just before the trial. She also submitted unsworned and unaffirmed statements and findings of her attending physician and an orthopaedic surgeon.

The only question before the Court is whether or not the motion for summary judgment filed by the owner and driver of the BMW should be granted.

The Court held that when a motion for summary judgment is filed, it is the duty of the person who filed it to prove that he is entitled to the summary judgment. When he succeeds in proving that he is entitled to the summary judgment, the burden of proof then shifts to the person opposing it to prove that a material issue of fact still exists that needs to be tried before a jury.

The Court held that the owner and driver of the BMW has proved that he is entitled to the summary judgment. He proved that the spinal injury complained of by the woman does not fall under any of the five categories of serious injury for which she can claim compensation in damages.

The Court also held that the woman failed to submit acceptable and admissible proof that there are still material issues of fact that need to be tried.

Continue reading "The owner and driver of the BMW asserts that the woman did not suffer" »

The above entitled action stems from personal injuries allegedly sustained by plaintiff as a result of which occurred.
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On 16 May 2008, at approximately 1:20 p.m. when plaintiffs' vehicle was exiting Northern State Parkway to Route 110 in Melville, County of Suffolk, State of New York, an automobile accident with defendant occurred. Plaintiff was operating a 2003 Lincoln Town Car which was owned by his employer while defendant was the owner and operator of a 2001 Chevrolet. Allegedly, the automobile that was being driven by plaintiff was struck in the rear by the automobile being driven by defendant. Defendant claims that the impact was heavy and caused his glasses to fly off and his body to move back and forth inside the vehicle despite the fact that he was seat belted. As a result of the accident, plaintiff claims that he sustained several injuries, including a spinal injury.

Consequently, on 6 April 2009, plaintiff commenced a personal injury action against defendant.

Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting her summary judgment on the ground that plaintiff did not sustain a serious injury in the subject accident as defined by New York State Insurance Law. Plaintiff opposes defendant's motion.

The Ruling:
Well settled is the rule 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 such, 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. 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.

Under the rules, 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. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.
Notably, 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. 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.
Accordingly, in support of a claim that the plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians. Nevertheless, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. In order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury. A plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests, as the Court of Appeals in the case of Toure v. Avis Rent-a-Car Systems has ruled.

Nonetheless, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. On the other hand, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. 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 car accident and the claimed injury.

Here, defendant submits the pleadings, copies of photographs of the alleged damage to plaintiff's automobile, copies of the New York State Unified Court System Web Civil Case Details on plaintiff's prior automobile accident lawsuits, plaintiff's Verified Bill of Particulars for the subject motor vehicle accident, plaintiff's Verified Bill of Particulars for his 11 February 2005 accident, the transcript of plaintiff's examination before trial ("EBT") testimony for the subject motor vehicle accident, the transcript of plaintiff's EBT testimony for the 11 February 2005 accident, records of plaintiff's treating physician, the report of the doctor who examined plaintiff on or about 4 June 2010, the records of plaintiff's treatment at Nassau County Pain Management, Rehabilitation & Medical Offices, P.C. and the affirmed report of the doctor who performed an independent orthopedic medical examination of plaintiff on 3 August 2010.
Defendant argues that, in 2005, plaintiff was involved in a major motor vehicle accident for which he had seen a variety of medical providers and commenced a lawsuit for personal injuries arising out of said accident, with representation by the same attorneys who are representing him in the instant matter; that in addition to that prior accident in 2005, plaintiff was involved in six other prior automobile accidents, for which he commenced a lawsuit each time; that plaintiff was represented by the same counsel; that plaintiff cannot establish the requisite causation through any legally admissible evidence that his current claims are proximately related solely to the accident of 16 May 2008; that it is undisputed that the plaintiff had long-standing complaints with regard to his left shoulder, back, knees and neck; that they are related to his prior accidents, as well as his pre-existing degenerative conditions, and his diabetes; and that plaintiff's complaints alleged to be related to injuries sustained in the May 2008 accident are simply not proximately connected.

Under the law, when moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury. Within the scope of the movants' burden, a defendant's Suffolk medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff's range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

In the instant case, the Court finds that the defendant has established a prima facie case that the plaintiff did not sustain serious injury within the meaning of New York State Insurance Law.
The burden of evidence now shifts to the plaintiff to overcome defendant's submissions by demonstrating the existence of a triable issue of fact that a serious injury was sustained.
Plaintiff submits his own affidavit, an affirmation from the doctor who treated plaintiff beginning on 21 May 2008, an affidavit of the chiropractor who treated plaintiff following his May 2008 accident, the affirmation of the board certified orthopedist who examined plaintiff on 27 April 2009 and 28 August 2009 and the affidavit of the radiologist under whose auspices administered and supervised the administration and examination of the MRIs of plaintiff's cervical spine and lumbosacral spine performed on 26 July 2008 and MRIs plaintiff's left shoulder and left knee performed on 2 August 2008.

First, in the affirmation of the doctor who treated plaintiff beginning on 21 May 2008, it was concluded that the injuries, as diagnosed, were causally related to the motor vehicle accident of 16 May 2008 and that said injuries were consistent with the clinical presentation in the doctor’s office. The doctor opined that the herniated discs at L4-5 and L5-S1 were exacerbated by the subject accident and that the accident had caused the L4-5 herniation to impinge on the anterior aspect of the spinal canal and left root at L4-5. In sum, the doctor concluded that the limitation in ranges of motion in the cervical and lumbar spine as well as the left knee and left shoulder were significant and permanent in nature and that the patient was totally disabled.

Second, in the affidavit of the chiropractor who examined plaintiff on 16 May 2008, it was concluded that the injuries sustained by the patient are causally related to the subject motor vehicle accident of 16 May 2008.

Third, in the affirmation of the doctor who examined plaintiff on 27 April 2009, it is provided that the doctor performed quantified and comparative range of motion tests on plaintiff's cervical and thoracolumbar spine. The doctor also concluded that the injuries, as diagnosed, are causally related to the motor vehicle accident of 16 May 20008 and the limitations in the ranges of motion as they are still present one year post accident can only be considered permanent.

And fourth, in the affirmation of the radiologist under whose auspices administered and supervised the administration and examination of the MRIs of plaintiff's cervical spine and lumbosacral spine performed on 26 July 2008 and MRIs plaintiff's left shoulder and left knee performed on 2 August 2008, the doctor’s impression of the cervical spine was subligamentous posterior disc herniations at C3-4, C4-5, C5-6 impinging on the anterior aspect of the spinal canal at C3-4 and C4-5 and on the anterior aspect of the spinal cord at C5-6; the doctor’s impression of the lumbosacral spine was subligamentous posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal, the neural foramina bilaterally and the left root nerve at L4-5 and moderate to severe stenosis from L3 though L5; the doctor’s impression of the left shoulder was acromion impingement on the supraspinatus muscle and increased signal in the supraspinatus tendon consistent with tendinopathy; and the doctor’s impression of the left knee was sprain of the anterior cruciate ligament and findings consistent with a tear in the posterior horn of the medical meniscus.
Lastly, plaintiff submits his own affidavit in support of his 90/180 argument. Plaintiff states that during the first six months after the accident, he was unable to perform several personal acts like food shopping, carrying groceries, exercising, enjoying social gatherings, etc.; and that despite the prior accidents he was involved in, at the time of the accident of 16 May 2008, he was pain free and leading a full normal active lifestyle including going to work as a limo driver.

In conclusion, the Court finds that the affirmations and affidavits provided by plaintiff clearly raise genuine issues of fact as to injuries causally related to the 17 May 2008 accident. Accordingly, defendant's motion for summary judgment is denied.

Continue reading "The above entitled action stems from personal injuries" »

According to reports received by a New York Car Accident Lawyer, this is a case involving a car accident and personal injury claims. Carlos Roldan and Carmen Torres filed a case against the County of Suffolk police Department. According to their testimony, on January 21, 2004 at about 2:30 in the afternoon, Roldan and Torres from Nassau County were passengers on a vehicle owned and driven by Jose Lopez-Nieves. They were driving along Washington Avenue and Express Drive South. They stopped at a red light at the intersection when the accident happened.

Roldan testified that while their vehicle was at stop along the intersection of Washington Avenue and Express Drive South, they were hit by an oncoming police car owned by Suffolk County Police Department and driven by Theresa Brondtman. It was after found out that the Police Car was also involved in a collision with another vehicle operated by Joseph G. Sorgie, Jr. and owned by Laura A. Sorgie.

Still according to the report, Suffolk County Police Department argued that Brondtman was operating the police car under official duty and was on her way to respond to a distress call. She further told the court that when she received the police radio call about a stabbing on Fifth Avenue, she turned on the siren and full lights and proceeded to the scene of the crime. Upon reaching Washington Avenue, Brondtman slowed down and observed the oncoming traffic. She proceeded when she established that at the moment, one part of the street was one-way-traffic. She drove no more than 20 miles per hour when suddenly a vehicle collided with Brondtman sending her spinning about 180 degrees before finally colliding with the white van where Roldan was a passenger. After the accidents, Brondtman stayed inside her vehicle and called for backup.

Based on the findings that reached a reporter, the vehicle operated by Sorgie was travelling on the South Service road about 30 miles per hour. He testified that he did not hear any siren nor see the police car until it was only about two cars length in front of him. He applied his breaks but couldn’t do much anymore. He tried to turn to the right by heavily turning his steering wheel but the front driver’s side and the rear of the police car already hit Sorgie’s vehicle before colliding with Nieves’ vehicle where Roldan was a passenger.

There were a lot of issues involved in this three collision accident. It was mentioned in the argument that Brondtman was on official duty when the accident happened. And even though she was on duty and about to respond to a crime scene she proceeded with caution but was caught in the accident in the process. According to a Lawyer, Roldan sustained a back and spine injuries. He underwent chiropractor therapy as well as acupuncture sessions along with injections over a period of 2 months for the injuries that he got from the said accident.

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Kathleen Stolarz and her husband were involved in a two-car auto accident caused by a bus on Route 6 in Woodbury, New York. This happened on February 18, 1989. A source found out that the vehicle that they were using was a company car rented by her employer Blue Cross/ Blue Shield. Blue Cross/ Blue Shield is a New Jersey company, and the car is registered in New Jersey. The car was insured by New Jersey Manufacturers Insurance Company. The policy given to Blue Cross/ Blue Shield was set to be consistent with the New Jersey law. Mr. and Mrs. Stolarz often garaged the vehicle at their home in Monroe, New York, which is just a few miles from the New Jersey border.

The insurance company of the other vehicle paid Mrs. Stolarz $20,000, which is the liability limit of the insured’s policy. This was disputed by Allstate Insurance Company, from whom the Stolarz’s got their personal car's insurance from. They based their dispute from the underinsurance coverage of that policy. Mr. and Mrs. Stolarz demanded for arbitration. A source said, Allstate Insurance Company answered by filing for a special proceeding with the Supreme Court. New Jersey Manufacturers Insurance Company also disputed the amount that is payable and joined the proceeding to get a decision as to the obligations of the parties. Allstate Insurance Company settled with Mr. and Mrs. Stolarz and was not part of the appeal anymore.

New Jersey Manufacturers Insurance Company argued that in the insurance policy’s terms and the New Jersey law, they were entitled to offset the $20,000 which was given by the other driver to Mr. and Mrs. Stolarz from the $35,000 limit that was in the policy. Mr. and Mrs. Stolarz, said by a rep, countered this with the New York law offset clauses are void, and they should get the full amount. The court determined that with the conflict between the New Jersey law and New York law in this case, New York law should be the one to be followed with these injuries.

The determination that was applied by the trial court was that in cases where there is a conflict between the laws is based on the parties involved, where the car accident happened and the government’s interest. In this case, the parties that affected lives in New York, the vehicle is normally parked housed in New York, and the accident happened in New York. The State of New York has a bigger interest in getting the issue resolved. According to police, this is normally used for issues regarding jurisdiction. The Court of Appeals decision was to look at where the contract was set and the parties to the contract. In the insurance policy, Mr. and Mrs. Stolarz were not the once who paid for it, nor were they the ones who got it. The insurance was between Blue Cross/ Blue Shield, a New Jersey Company and New Jersey Manufacturers Insurance Company basing it on previous decisions with regard to contracts. They, therefore, concluded that only $15,000 of the $35,000 is due to Mr. and Mrs. Stolarz. Police in Nassau and Westchester took note.

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This is a case filed by Karren Cotty against several individuals and companies regarding her cycling accident in which she suffered personal injuries. Included in Cotty’s complaints were the Town of Southampton where she and her husband along with other experienced bikers often rode in groups. Suffolk County Water Authority, Elmore Associates Construction Corporation and CAC Contracting Corporation are the other entities included in Cotty’s complaint.

According to her story the accident happened on July 27, 2002 along a two-way paved road known as Deerfield Road in the town of Southampton north of Woodthrush Lane. She said that she was the last cyclist in the party of 8 experienced bicyclist. She considered herself as advanced to intermediate rider while her husband, whom she also rode that day of the accident, was leading the pack and was considered as the skilled cyclist. According to a report Cotty was the last person in a single filed cyclist and immediately in front of her was Peter Deutch. According to Karen, when Deutch fell she tried to avoid running into him and that’s the last thing she remembered. When she opened her eyes, Cotty already saw EMT’s helping her and Deutch from their sustained injuries.

According to her testimony, she considers herself as a “safe-rider” following instruction on cycling safety rules and habits. She wore on that day a high-end type helmet. She said that as a habit, she never ride directly on somebody’s wheel. She always allow a safe distance between her and the rider in front of her. She also remembered the weather being significantly dry and good for riding. She also said that she had already ridden Deerfield about 20 to 30 times before and making her quite familiar with the place.

According to the witness, Deutch testified that he had been riding with Cotty for 6 to 7 years already. He said that on the day of the accident, he fell because there was a construction ahead and that there were no barricades or warning signs whatsoever. Deutch also saw the other riders in front of him had difficulty manuevering because there was no shoulder on the road and all the construction materials were there at the travel path. He saw the others get pass the difficulty, just a split second and he fell. He immediately thought of Cotty who was about three feet away from him and saw her avoid him. He said that there was no real contact between his bike and Cotty’s. But as Cotty avoided Deutche on the ground he believed that she slid the same way he did and slid to the other side of the road straight on to the oncoming car from the northbound lane which he believed was still moving.

Cotty’s husband upon hearing the screeching sound of a car stopping immediately looked around to see his wife underneath a vehicle on the northbound lane of Deerfield. He also testified that normally, when riding as a group the riders in front notifies riders behind them about rode imperfections, pot holes or other hindrances that are significant to their safety either orally or by hand gestures. On that day, their group was not as tight. There were bicyclists riding ahead and sort of several feet away.

According to a friend, Dennis Schmidt who was driving his vehicle on the northbound lane of Deerfield said that he noticed no construction on his side of the road. He noticed ahead, on the opposite side of the road several cyclists riding on a single file. When he saw them, he immediately slowed down or even hit the breaks in order to be cautious. He saw Deutche fell and in no time he saw Cotty avoid her fellow rider on the ground but had turned sharply and went to his side of the road. He immediately hit the breaks, skidded and went to a stop. He did not believe that he hit Cotty at that point. Witnesses who also saw the accident testified that Schmidt was driving about 30 miles per hour, on the speed limit. Accidents like these occur in Nassau also.

Based on the reports that reached a rep, this is a case wherein several individuals and corporate entities are involved. Each has contributory factor on the outcome of the event depending on the circumstances and evidences presented. On case against Schmidt, it was determined that he was not the direct cause of the accident and was not established that he was negligent in operating his vehicle. As for the case against Deutche, further investigation still needs to be done to determine whether he was also a cause of Cotty’s accident or if he was even operating his bicycle negligently.

As for the construction that was going on during the accident along Deerfield Road, it was found out that Elmore has long finished its contract and was replaced by CAC which removed the asphalt overlay done by Elmore, living a depression on the road. CAC was found to have a liability on the Cotty’s accident.

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