New York Car Accident Lawyer Blog

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 car accident and continues to be partially incapacitated from her employment to date.

A report 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.

The Suffolk Court said that it has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries". Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance.

Insurance Law § 5102 (d) defines a "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."

A defendant seeking summary judgment on the ground that a plaintiffs’ negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury". When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, such as, affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law. A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians.
Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law. However, if a defendant does not establish a prima facie case that the plaintiff’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers.

Initially, the Court notes that the report submitted by defendants' chiropractor, is inadmissible, inasmuch as it was not sworn to before a notary or other authorized official does not allow for a chiropractor to affirm the truth of his statement with the same force as an affidavit. Thus, defendants' failure to submit the chiropractor's report in admissible form requires that it be excluded from consideration.

However, defendants have established their prima facie burden that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The reports of defendants' various experts state that plaintiff has full ranges of motion in her cervical and lumbar regions when compared with the normal ranges of motion for those areas. The reports also state that although plaintiff complains of minimal tenderness upon palpation over the cervical and lumbar spines, no muscle spasm is elicited when the cervical or lumbosacral musculature is palpated and that there is no tenderness upon palpation of the thoracic spine. The reports further state that the cervical and lumbar spines sprains that plaintiff sustained as a result of the subject accident have resolved and that plaintiff is capable of performing all of her daily living activities without restriction. Furthermore, reference to plaintiffs own deposition testimony sufficiently refuted the "limitation of use" categories of serious spinal injury and the "90/180 days" category under Insurance Law § 5102(d).

Therefore, the burden shifted to plaintiff to come forward with competent admissible medical evidence based on objective findings, sufficient to raise a triable issue of fact that she sustained a "serious injury". A plaintiff alleging an injury within the limitation of use categories must present either objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration in order to prove the extent or degree of physical limitation he or she sustained. A sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and use of the body part may also suffice. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

In opposition, plaintiff raised a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Plaintiff relies upon the affidavit of her treating chiropractor, which states that he initially began treating plaintiff on May 2, 2008 and continued to treat her until February 2010. Dr. Wright's affidavit reveals that plaintiff had significant range of motion limitations in her cervical and thoracolumbosacral regions contemporaneous with the subject accident, and that those limitations still were present when he re-examined plaintiff on September 25, 2010. He opines that plaintiff's range of motion limitations are permanent and are the direct result of the subject accident. The report further states that the spinal injuries plaintiff's sustained as a result of the accident will "inhibit her ability to carry out her normal living activities of daily living, which involve prolonged sitting, standing, bending, walking, lifting or extreme physical exertion."

Contrary to defendants' contention, plaintiff adequately explained her gap in treatment. The doctor’s explanation for the gap in treatment essentially is that plaintiff reached her maximum medical improvement and any further treatment would have merely been palliative in nature. Furthermore, inasmuch as plaintiff established that at least some of her injuries meet the "No Fault" threshold, it is unnecessary to address whether her proof with respect to other injuries she allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment. Accordingly, defendants' motion for summary judgment is denied.

Continue reading "Accident on LIE Causes Personal Injury" »

When a vehicle has been involved in a traffic accident, it is not uncommon for issues relative to the ownership of the vehicle to play a part in the venue of the hearing. Venue is the location in which the court will conduct any hearings relative to the case at hand. In order for the court to determine an appropriate venue for a case, it generally takes several items into consideration. Most of the time, such as in criminal trials, the venue for the case is the location where the incident occurred. If a robbery happens in Brooklyn, New York, then the Superior Court of Kings County and not the Superior Court of Queens County will hear the case. However, in civil cases and Family Court, the rules about Venue are much more flexible. Rather than being relative to a particular incident location, it is generally based on the county of domicile for one or both of the participants. If the case involves a business, it is much more likely that the case will be tried in the court that is located in the county where the business maintains its main base of operations.

On October 1, 1982, a traffic accident occurred in the Village of Freeport in Nassau County. The passenger in one of the vehicles, filed a personal injury lawsuit. She named the business that the other driver worked for in her lawsuit. The truck that the man was driving was owned by a business that had their primary offices in Kings County. The business had leased the truck from a truck leasing company that operated out of Nassau County. While the case was waiting for trial, the headquarters of the company moved from Kings County to Nassau County.

Originally, the venue for the car accident case was set for Kings County where the business headquarters was located. Following the move of the business from Kings County to Nassau County, the owner filed a motion to change the venue of the case from Kings County to Nassau County. Originally, the court denied the motion. The owner of the business filed an appeal of the decision.

The Supreme Court reviewed the request and determined that the original trial court had been wrong when they denied the request to change the venue of the hearing from Kings County to Nassau County. The reasoning was beyond comprehension for the appeal court. It was only logical that the case should be heard in Nassau County. The business headquarters was located in Nassau County. The accident occurred in Nassau County. The police officers who were on the scene and investigated the circumstances of the accident are Nassau County Police Officers. Even the hospital where the complainant was taken following the accident was located in Nassau County. Therefore, all of the witnesses that would be called to court to testify would be either living or employed in Nassau County. Making them travel to Kings County for the trial of the case would have posed an undue hardship on everyone involved in this case. There were no notes about why the original trial court had refused to transfer the case to Nassau County. However, logic prevailed when the decision was appealed and the case was subsequently transferred to the courts of Nassau County.

Sometimes, courts make mistakes in judgment. Courts are made up of people who are each assigned specialized jobs. They must all communicate clearly and with good communication skills in order for the court to function as it should. When someone makes a mistake, it is important that steps be taken as soon as possible to correct that mistake. That is when the appeals court is brought in to review decisions.

Continue reading "Where are trials held?" »

This is a case where the court ruled that the motion by plaintiff for summary judgment on the issue of liability or fault but not as to serious injury is granted. However, the cross motion by defendant for summary judgment dismissing the complaint on the grounds that plaintiff has failed to sustain a "serious injury" within the meaning of Ins. Law §5102 is denied.

This is an action arising out of a hit in the rear car accident that occurred on May 15, 2003, on Glen Cove Road at or near Pound Hollow Road, Nassau County. Plaintiff was struck in the rear by defendant's vehicle while stopped for a red traffic light. There is no claim that plaintiff had made any short or sudden stop or turn. Plaintiff's examination before trial testimony states that plaintiff's vehicle was stopped for a red traffic light. As the light turned to green but before he began his forward motion, plaintiff's vehicle was struck in the rear by a vehicle driven by the individual defendant and owned by the corporate defendants. Defendant testified that at the time of the car accident, plaintiffs vehicle was stopped, his view was unobstructed and there was nothing that prevented him from coming to stop before hitting plaintiffs vehicle. Although defendant posits that plaintiff testified that the traffic light had turned to green as the impact occurred, it is clear that his foot was still on the brake and that he had not begun to move.

According to the Suffolk court, there is no competent evidence to dispute plaintiff's evidence that defendant's vehicle struck the plaintiffs vehicle in the rear. The submission in support of the motion by plaintiff has established entitlement to judgement thus shifting the burden to defendant to rebut the motion by submitting proof in evidentiary form showing the existence of triable issues of fact. Here the defendant has failed to establish the existence of triable issues of fact on the issue of liability or fault and the Court finds no material fact issues requiring a trial with respect to the issue of fault.

The court ruled that a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle.

The following vehicle was under a duty to maintain a safe distance between his vehicle and the vehicle ahead. Vehicle and Traffic Law § 1129 [a].Leal v. Wolff, 224 AD2d 392 (2d Dept. 2005). In opposition defendant relies solely on the EBT testimony of the parties. The affirmation of defendant's attorney, which fails to rely on any personal knowledge, is lacking in evidentiary value. The Court has not considered the police accident report attached to the moving papers of plaintiff because it is hearsay and inadmissible unless a hearsay exception applies. Based on the foregoing, the motion by plaintiff for summary judgment on the issue of liability and fault, except for the issue of serious injury is granted.

The Court held that within the context of the defendant's burden, when presented with claims which include shoulder injury or bulging or herniated discs, defendant through medical experts must demonstrate that such conditions are not causally related to the subject car accident or that they do not constitute a "serious injury".

In the Bill of Particulars plaintiff alleges having sustained: right shoulder injury with impingement, disc bulges, radiculopathy, spasms, straightening of the spinal curvature and related sequelae.

In order to support their application for summary judgment, the defendants were compelled to present competent proof in admissible form demonstrating that plaintiff did not suffer a serious injury under any of the four categories cited.

Based on the foregoing the Court finds that defendants have failed to meet their burden of making out a prima facie showing that plaintiff did not suffer a "serious injury" under the Insurance Law. Insurance Law § 5102(d).

Where the defendant fails to meet the initial burden of establishing prima facie entitlement to judgment as a matter of law, the court need not consider whether the opposition papers are sufficient to raise a factual issue.

Continue reading "Suffolk Court rules on evidence in car accident" »

This involves a case wherein the Court ruled that plaintiff’s injuries did not suffer a “serious injury” in the accident as defined by New York State Insurance Law which led for an order granting defendant summary judgment.

Plaintiff commenced the action against defendant allegedly for personal injuries sustained by plaintiff as a result of a car accident with defendant which occurred on November 20, 2009, at approximately 7:51 p.m., at or near the intersection of Guinea Woods Road and Jericho Turnpike, Old Westbury, County of Nassau, State of New York. The accident involved a 2008 Chrysler owned and operated by plaintiff and a 2003 Volkswagen owned and operated by defendant. It is plaintiff's contention that the car accident occurred when defendant's vehicle struck plaintiff's vehicle in the aforementioned intersection when, defendant's vehicle, while speeding, made a left turn in the intersection and failed to yield the right of way.

Defendant argued that plaintiff's medical records establish that plaintiff had a preexisting medical history of lower back pain that pre-dates and is unrelated to the subject accident. Defendant submits that, on January 22, 2004, almost six years prior to the subject accident, plaintiff went to a physician with complaints of back pain from the proceeding year and admitted that the condition originated five to six years earlier. Defendant added that the medical records of plaintiff's treating physician, further showed that plaintiff had pre-existing spinal injury, lumbar stenosis and pain of his lumbar spine for which he was treating from 2004 through 2006 and again in 2009 prior to the subject car accident.

Based upon this evidence, the Court found that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

The burden now shifted to plaintiff to come forward with evidence to overcome defendant's submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. To support his burden, plaintiff submitted the Affirmation of his treating physician, plaintiff's EBT testimony and the physician's medical treatment records for plaintiff dated October 13, 2009 thought January 19,2010.

However, the Court noted that physician's Affirmation (Plaintiff's Affirmation in Opposition Exhibit A) fails to set forth any objective findings contemporaneous with the subject accident, as well as fails to set forth any quantified range of motion findings based on a recent examination of plaintiff. The physician provided no objective basis for any of his conclusions concerning his initial examination, nor for his most recent examination of plaintiff. Furthermore, in his Affirmation, the physician did not set forth the objective tests upon which he predicated his findings and conclusions and accordingly his Affirmation is insufficient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use categories of New York State Insurance Law § 5102(d).

The Court said that absent any objective contemporaneous findings, plaintiff cannot establish the duration or cause of any limitations found by his treating physician during his recent examination of plaintiff.

With respect to plaintiff's 90/180 claim, nowhere does plaintiff claim that, as a result of his alleged injuries, he was "medically" impaired from performing any of his daily activities or that he was curtailed "to a great extent rather than some slight curtailment.". In light of these facts, the Court determined that plaintiff's injuries do not satisfy the "medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" category of Insurance Law.

Continue reading "Based upon this evidence, the Court found that defendant has established a prima facie " »

This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident in 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. In his bill of particulars, plaintiff alleges that he sustained the following spinal injury and other injuries which are alleged to be permanent: Cervical muscle spasm, cervical radiculopathy, neck pain with 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, 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, loss of enjoy of life.

A source said that, plaintiff was involved in a prior motor vehicle accident in 2002 whereby he injured his neck, lower back, and shoulders. Defendant claims that the spinal injuries plaintiff complains of in this accident are not causally related to the 2008 motor vehicle accident, but rather are permanent spine injuries resulting from the 2002 accident.

Defendant has presented objective medical testing from 2002 in order to establish the preexisting spine injuries at the time of the 2008 accident. The MRI report dated February 25, 2002 of Dr. Richard J. Rizzuti indicated posterior disc bulge at L3-L4 and at L5-S1 impinging on the spinal canal. The report 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. Dr. Spindler states that "any scores falling in the abnormal range recognize a possible entrapment of the nerves and indicate that a problem exists." More recently, plaintiff's treating 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 2002 accident. Defendant claims that the evidence demonstrates that any permanent and consequential spine 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.
As a result of the subject motor vehicle accident, plaintiff was taken to NUMC where x-rays were taken at the emergency room. The physician who interpreted the x-rays of his lumbar and thoracic spine reported no fractures, dislocation, or other significant bony abnormalities and reported that the intervertebral disc were normal in height. Defendants also submit plaintiff's deposition whereby plaintiff admitted that after the accident of 2008, plaintiff first sought treatment 2-3 days after the accident for physical therapy, and then received treatment for six to seven months thereafter. There is a gap in treatment by plaintiff's own admission. Finally, defendant submits an affirmed report from an orthopedic surgeon, Dr. Michael J. Katz, who examined plaintiff and performed a range of motion tests using a goniometer a well as other clinical tests, and found that plaintiff's cervical strain with radiculitis, thoracolumbosacral strain, and bilateral shoulder contusion were all resolved. Defendants conclude by stating that there is no medical evidence to support plaintiff's claim that he was unable to work for 8 months and was prevented from performing substantially all of his customary daily activities for at least 90 days of the last 180 days.

Defendants filed a motion for summary judgment on the ground that plaintiff did not sustain serious injuries as defined under Insurance Law.

The issue in this case is whether plaintiff sustained serious injuries as a result of the motor vehicle accident.

The Court in deciding the motion said that, as a proponent of the summary judgment motion, defendants have the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Defendant's medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff's range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The Court held that defendants established their entitlement to judgment as a matter of law by submitting, the affirmed medical report of Dr. Katz who examined the plaintiff in 2009 and found no significant limitations in the ranges of motion with respect to any of his claimed spinal injuries, and no other new serious injuries within the meaning of Insurance Law § 5102(d) causally related to the collision in 2008. Defendant has shown the pre-existence of the spine injuries claimed by plaintiff relating to the 2002 motor vehicle accident. Moreover, a defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the spinal injury, that he sustained a serious injury caused by the motor vehicle accident of 2008. In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law § 5102(d). Plaintiff must come forth with objective evidence of extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff, and upon medical proof contemporaneous with the subject accident.

Where, as here, plaintiff sustained injury as a result of a prior accident, the plaintiff's expert must adequately address how plaintiff's current medical problems, in light of his past history, are causally related to the subject accident. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate.

In opposition, plaintiff submitted an affidavit dated January 26, 2011 from her treating chiropractor, which is deficient. The statements made by the chiropractor that the spine injuries are causally related to the 2008 accident are conclusory and purely speculative. In the absence of an explanation by the plaintiff's expert as to the significance of the degenerative findings and the prior accident, it would be sheer speculation to conclude that the subject accident was the cause of plaintiff’s spinal injuries.

Finally, there is also no explanation provided as to plaintiff's gap in treatment after the 2008 accident. In order to survive summary judgment "a plaintiff who terminates therapeutic measures following the accident, while claiming serious injury, must offer some reasonable explanation for having done so. Plaintiff's submissions are insufficient to rebut the prima facie case established by defendants entitling them to summary judgment as a matter of law. Hence, the Court granted defendants motion for summary judgment.

Continue reading "The Court in deciding the motion said that" »

This action arises from a motor vehicle accident which occurred in the eastbound lanes of the Long Island Expressway, approximately 150 feet west of Powells Lane (between Exits 39 and 40) in the Village of Old Westbury County of Nassau, State of New York. The car accident involved two vehicles, a 2007 Mercedes Benz 350 Convertible owned and operated by plaintiff and a 2007 BMW owned and operated by defendant. Plaintiff commenced the action by the filing and service of a Summons and Verified Complaint.

A Lawyer said that, it is plaintiff's contention that the car accident occurred when, while driving in "stop and go Friday afternoon traffic," her vehicle was slowing down to stop in said traffic and was struck from behind by defendant's vehicle. Plaintiff asserts that the impact to the rear of her vehicle was very heavy and as a result of said impact, her vehicle flew into the car in front of her vehicle. The vehicle in front of plaintiff's vehicle then hit another vehicle that was in front of it.

Plaintiff claims that defendant was the negligent party in that he failed to maintain a safe distance behind plaintiff's vehicle, as well as failed his duty to exercise reasonable care under the circumstances to avoid the car accident. Plaintiff additionally claims that defendant cannot come up with a non-negligent explanation for striking plaintiff's vehicle in the rear, nor any conduct that would constitute any comparative negligence on plaintiff's part.

Plaintiff moves, pursuant to CPLR § 3212, for an order granting partial summary judgment against defendant on the issue of liability. Defendant opposes the motion.

The issue in this case is whether defendant is liable, warranting partial summary judgment on the part of the plaintiff.

The Court held that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. 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.

Further, the Court said that, 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. It is the existence of an issue, not its relative strength that is the critical and controlling consideration. The evidence should be construed in a light most favorable to the party moved against.

The Court said that, when the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle pursuant to New York State Vehicle and Traffic Law ("VTL") § 1129(a).

A rear end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle. Such a collision imposes a duty of explanation on the operator. Since a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, the operator is therefore required to rebut the inference of negligence by providing a non-negligent explanation for the collision. Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. Drivers must maintain safe distances between their cars and the cars in front of them and this rule imposes on them a duty to be aware of traffic conditions including stopped vehicles. Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident.

The Suffolk Court held that, plaintiff, in her motion, has demonstrated prima facie entitlement to summary judgment on the issue of liability against defendant. Therefore, the burden shifts to defendant to demonstrate an issue of fact which precludes summary judgment.
Thus, after applying the law to the facts in this case, the Court finds that defendant has failed to meet his burden to demonstrate an issue of fact which precludes summary judgment. Defendant failed to submit any evidence to establish a non-negligent explanation for striking plaintiff's vehicle in the rear. In opposition, defendant submitted only an Attorney's Affirmation which did not dispute any of plaintiff's factual contentions nor set forth any facts or evidence to refute that defendant was negligent as a matter of law. The Court finds that the undisputed facts on the record establish that defendant's vehicle struck plaintiff's vehicle in the rear when plaintiff's vehicle was stopping in traffic. Defendant has offered no excuse or a non-negligent explanation for the occurrence of the rear-end collision.

Accordingly, in light of defendant's failure to meet his burden and raise any triable issue of fact, plaintiff's motion, pursuant to CPLR § 3212, for an order granting partial summary judgment against defendant on the issue of liability is hereby granted.

Continue reading "This action arises from a motor vehicle accident which occurred in the eastbound lanes " »

On 3 September 2008, on South Oyster Bay Road, at or near its intersection with Ontario Avenue, Plainview, County of Nassau and State of New York, a motor vehicle accident occurred. As a result, a negligence action was brought to recover damages for the personal injury allegedly sustained by plaintiff. It is alleged that the County, its agents, servants or employees, were negligent, reckless and careless when they permitted a defective, unsafe and dangerous condition to exist and in failing to provide proper signage or sufficient warning to motorists with regard to an approaching lane closure, causing plaintiff to swerve to avoid the closed-off lane and hit a vehicle in on-coming traffic. Plaintiff and the County stipulated to include another defendant who performs the tree maintenance adjacent to highways as well.

Both defendants move for summary judgment dismissing plaintiff's complaint on the grounds that plaintiff's own culpable conduct and negligence was a substantial cause of the events that produced her injuries.

The Ruling:

Under the law, in a negligence action where municipal employees or agents were engaged in work on a highway, plaintiff must show that defendant acted with reckless disregard to the safety and welfare of others. New York Vehicle and Traffic Law exempts persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway, including hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway from obeying the traffic laws of the state or municipality. Nonetheless, the law requires these vehicles to practice due regard for the safety of all persons, and the exemption will not protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others. Thus, courts have precluded the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness.

On another note, the standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law. Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial.

Here, plaintiff claims that under the Emergency Doctrine she is entitled to protection from liability. Under this doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. However, use of the Emergency Doctrine requires that the situation faced by the person claiming protection of the doctrine was not of that person's own making. Thus, the emergency doctrine does not apply here, as the party seeking to invoke it created or contributed to the emergency. Plaintiff's failure to anticipate and react to the eventuality that she would be unable to move her vehicle into the right lane as planned precludes application of the emergency doctrine. Plaintiff's negligent driving in the subject circumstances cannot be excused by the alleged emergency circumstance.

Accordingly, the County's motion is granted on the grounds that it was not the proximate cause of plaintiff's injury, and because plaintiff cannot present evidence that the County acted with reckless disregard. Plaintiff's complaint and any and all cross claims against the County are dismissed. The other defendant’s cross-motion for summary judgment advocating and reiterating the County's contention that plaintiff's negligence is a superseding cause of the accident is similarly granted. Plaintiff's complaint and any and all cross claims asserted against the other defendant are also dismissed. The other defendant’s motion to strike the Note of Issue and compel depositions and plaintiff's cross-motion for discovery-related relief are also denied as academic.

Continue reading "On 3 September 2008, on South Oyster Bay Road" »

Pieces of a sedan involved in a recent car accident were strewn across the highway and into the median as crews attempted to clean up the scene. The single car accident resulted in the death of the woman driving the vehicle and the hospitalization of her husband, who was also in the vehicle at the time, reports a witness.

The woman briefly lost control of her SUV; it is unknown what caused her to swerve to the side of the road and hit the guardrail. After attempting to correct the course of the vehicle, the woman overcorrected and caused the vehicle to roll. Because SUVs are more top heavy than sedans, they are much more likely to the roll when they change direction suddenly.

The woman was thrown from the vehicle as it rolled because she was not wearing her seatbelt at the time. The woman’s husband was also not wearing his seatbelt but he remained with the vehicle as it rolled although his body did partial leave the SUV. This situation exemplifies the importance of wearing seatbelts, explains a policeman.

The woman may have been distracted by her passenger, a cellphone or possible under the influence of drugs or alcohol at the time of the incident. The police have not yet attempted to question the husband because of the severity of his injuries and his hospitalization. There is also less urgency to determining the exact circumstances since the operator of the vehicle was killed and will not have face charges; the lack of other vehicles involved also make the incident less of a priority.

The husband continues to recover from his critical, if not life-threatening, injuries. The vehicle was totaled in the accident. The cleanup crews have finished scouring the area for any additional parts of the vehicle. The insurance companies in Nassau and Suffolk have not commented on the case, but will most likely conduct their own investigation into the events that took place that evening to determine their liability; in a case such as this, the husband’s injuries may be covered by either the health insurance company or the auto insurance company.

Continue reading "Single Car Accident Litters a Highway and Median" »

An SUV and a sedan collided on Tuesday when the driver of the SUV ran a stop sign, witnesses report. The driver of the sedan had to be removed from her vehicle by the firefighter who arrived on the scene shortly after the accident. Police are still investigating the witness’s accounts of the events to determine if the SUV really did run through the stop sign, reports a source.

The woman, after being removed from the vehicle, was transported via ambulance to a nearby hospital to receive treatment for her injuries; as she was loaded into the ambulance, the woman complained of injuries throughout the majority of her body. Police have not released any further updates on the woman’s condition and it is unknown whether or not she is still hospitalized.

The driver of the SUV was injured in the accident, but received only minor injuries which did not require hospitalization. The woman driving the sedan was wearing her seatbelt at the time of the incident while the driver of the SUV was not. A Lawyer explains that the relative sizes of the vehicle probably provided greater protection to the SUV driver. The woman’s injuries would have been more severe if she had not been wearing her seatbelt, and, without the seatbelt, she might have been thrown from the car.

Both drivers were alone in their vehicles at the time of the accident. The driver of the SUV responded to the police questioning without any incident, but it was unknown at this time what caused the driver not to stop at the intersection. Police and fire crews cleared the midday accident within a few hours; the accident did not affect the rush hour.

The woman’s car was towed from the scene while the woman was at the hospital. The damage to the sedan from the accident in Nassau and Suffolk was compounded by the damage that the rescue crew did as they removed as they cut the woman from the vehicle, states an officer. The SUV was damaged but was able to be driven away from the scene.

Continue reading "Events Surrounding Two-Car Accident Being Examined" »

Mark Anthony Spano died in a car accident. He hit a tree with his car and died. In a trial, filed by Leonard Spano as the Administrator of the Goods, Chattels and Credits of Mark Anthony the trial court found that they were not able to establish at initial look the negligence that was supposed to have been committed by Deputy Edward H. McAvoy. In their case, they claimed that spotlight that was used by Deputy McAvoy reflected in the decedent’s rearview mirror and temporarily blinded him, which in turn caused him not to see the tree and hit it and die. A witness said that the court did not find any evidence where they could somewhat infer that the deputy’s spot light can blind a driver.

A case was filed with the Appellate Court to appeal against the decision. The court looked at the evidence presented, said a juror. The only testimony regarding the length of time the spotlight on was from the defendant Deputy McAvoy. He testified and in his sworn statement, that the spotlight was on for about three seconds. He also swears that he did not see Mark Anthony Spano’s car hit the tree. Where evidence shows that he was just about five seconds or about 500 feet behind the decedent’s car. With this distance, he has a clear view if the car before him, and the tree. This creates a doubt about his testimony regarding how long the spotlight was on.

Another question about his statement was that it was given three hours after. It was given to an investigator whom the sheriff hired. The statement itself showed that the defendant reviewed it very thoroughly before he signed it as there were corrections that he initialed by hand. It was mentioned by a source that it narrated Deputy McAvoy turning on his spotlight and focused it on the rear window of the pursued vehicle. There was no mention of when he turned off the spotlight, if he did. The records also showed that within four days from the accident, the investigator did a follow-up investigation to clarify Deputy McAvoy’s statement. In the additional report, it is said that Deputy McAvoy turned off the spotlight as the decedent’s car crossed the intersection. He said that it was because it was hard to drive and control the spotlight at the same time. Nassau and Suffolk have the same problems.

Leonard Spano, on the other hand, had presented an optometrist and an car accident reconstruction expert who could make the jury see that a person can be blinded by a strong light reflection from a mirror. The defense counsel also agrees that the effect of a shining light on a rearview mirror is a question for a jury. A Lawyer said that the court reversed the decision of the decision of the trial court. They granted a new trial to present the case.

Continue reading "Mark Anthony Spano died in a car accident" »

A car accident involving six vehicles on Route 101 is thought to of been caused by a medical condition of one of the drivers. The car accident happened on Saturday morning. The lady suffered from her illness which quickly developed into a pretty serious six car pileup according to police.

There were no fatalities caused by the crash and nobody was seriously injured as a result of the accident. Police said that it’s lucky that this accident wasn’t much more serious than it actually was.

Police have also explained that the woman will not face any criminal charges because of the accident. The accident was not her fault, and she didn’t know that she would cause the accident if she drove. The police still haven’t released the name of the woman, but it’s unlikely this information will ever be passed into the public domain.

The woman was travelling eastbound along Route 101 when she suffered from a medical complication. The complication was caused by a pre-existing medical condition.

This complication caused her to lose control of her car. This then hit a number of other vehicles at an intersection along Route 101. A few of the vehicles which were involved in the accident were heavily damaged by the crash. Some of the cars were even pushed over the center of the road into the westbound carriage way. It’s fortunate that the accident wasn’t more serious.

The woman was sent to hospital by ambulance. She received treatment at Catholic Medical Center which is in Manchester. She is currently being evaluated by medical professionals to look at what can be done to prevent the same thing affecting her in the future.
Some of the other drivers and passengers required medical attention. However, the only injuries sustained were minor and not life threatening. This meant that they could be discharged from hospital very quickly. Accidents like this one are common in Nassau and Suffolk counties.

The cause of the accident has been identified by police, and the woman is receiving medical treatment. There are unlikely to be any charges filed against anyone because of this crash.

Continue reading "Ill Woman Causes Crash involving 6 Cars" »

Mystery car accidents are frustrating for the police, particularly when it involves children, as in this case, commented the police. The 15-year old was ejected from the car she was riding in when it veered off the road and went into a roll over. She was dead on impact with the ground.

The vehicle in which she was riding had been headed to the nearest town and was being driven by an 18-year old young man, who didn’t have that much experience driving. Ambulance crews took him to the hospital, where he was treated for minor injuries and discharged. As soon as he was discharged, he was arrested. Another 21-year old man was arrested at the scene of the accident, outlined the reporter.

Police aren’t certain yet as to what happened to cause the first car that the young girl was riding in to go off the road, but they have suspicions that the two cars that were traveling together, were speeding and racing one another. The police are asking for any eye witnesses to come forward and help them with the investigation, explained the source. They particularly want to talk to anyone who saw the blue Corsa before it flipped or a white Ford Fiesta. They’re hoping they can get to the bottom of what caused this fatality. This could very easily be a case of distracted driving on the part of the offending car in the accident. Police in Nassau and Suffolk Counties are on the lookout for distracted driving because this causes the most personal injury in car accident cases.

The family of the young girl will be completely devastated and likely want to investigate filing a wrongful death lawsuit. In order to do that, they need to take their case to an experienced expert.

Continue reading "Mystery car wreck kills one" »

Road traffic accidents can affect anyone, even when they are doing everything they possibly can to remain safe. Sometimes the road conditions or other drivers expose even the safest of drivers to the risk of car accidents.

A policeman has been given a report caused by poor weather conditions. The driver was driving their children home from their sports game. The weather was very bad and visibility was also poor. The driver has later mentioned that the wind and rain became very heavy while driving along and that she saw the faint outline of a vehicle about to pull out to turn right. She was distracted by the conditions.

The report shows that the driver obviously tried to hit the brakes and stop, but there wasn't enough time. The wheels locked up and the car went into a spin. This caused it to strike the truck waiting to turn right. This completely damaged the front of both vehicles. There was another vehicle in front which was also involved in the accident.

The police stated that the driver’s immediate concern was to check that her two young sons were OK and still strapped securely to their seats. The lawyer points out that if the children weren't wearing their seat belts that the car accident could of been much more serious.

The police were called to the scene and acted quickly to resolve the collision. Medical treatment was not required as the only injuries sustained to anyone were aches and bruises.

According to a report issued by Nassau and Suffolk Counties, driving is pretty safe. Most people haven't been in a car accident before which means they won't normally know what to do when involved in one.

The woman who had the car gave her details to the local police department and then had to wait almost an hour for a state trooper to arrive. While the accident was caused by the driver of the first vehicle, it was just an accident caused by bad weather. No alcohol was drunk by any of the drivers before setting off and they were not going too quickly.

The vehicle was towed off the road to a repair shop to be fixed. The driver received 4 points on her record, and had to pay a fine of $163. An expert advised her that she can fight the charges and points.

Continue reading "Dealing with Road Traffic Accidents" »

A memorial fund has been established for the family of a boy killed in a solo car accident. The boy was driving when he lost control of his car and hit a tree. The car caught on fire and it appears the boy was trapped in the car and died. He was pronounced dead at the scene. Firefighters from the nearby fire station were called to the scene as were local law enforcement officials.

Those who knew the boy held a candlelight vigil in the area where the boy died. The vigil was later moved the parking lot of the local high school because of the number of people who attended. The boy was well-liked in his high school and in the community, explains a friend. Friends, teachers and relatives spoke about the boy at the vigil. Many remembered the boy's smile and how pleasant he was to be around. Some shared their memories while others comforted each other. It is unknown where the boy was headed when the accident occurred.
The accident happened on a Friday night around 8pm. It is unknown how long the boy had his driver’s license. Police believe the boy lost control of the red Honda he was driving and crashed into a tree. It might have been a case of distracted driving. They do not believe the boy was speeding or under the influence of drugs or alcohol at the time. Law enforcement officials believe this was just a tragic accident. The boy may have momentarily taken his eyes off the road or an animal may have crossed the vehicle's path and the boy swerved to miss it and hit the tree. Since he was the only person involved in the accident, there are few details to work with, claims a spokesperson.

By all accounts the boy had many friends, hobbies and interests. His hobbies included fixing cars and trapshooting. According to a friend, he was also very close to his family. The town will continue to mourn the boy's death and remember him by helping his family pay for funeral and other expenses through the memorial fund. Car accidents like this one are common in Nassau and Suffolk Counties.

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Anytime an 18-wheeler is involved in a car wreck, the results are never pretty, said the NY City Car Accident Lawyer. This case is a prime example of a terrible wreck that killed two elderly people; a pastor and his wife. The collision happened at an intersection and involved two semis. Somehow or other, the pastor’s vehicle was caught in between the two trucks and the truck behind them rear ended their car, causing an underride accident.
The police want to know a whole lot more about this accident and are asking anyone with any information to come forward. They want to find out if anyone saw the accident or saw the two trucks just before the accident. Given the fact that the truck behind the car rear-ended them, indicates that he was not paying attention to the road and it may also indicate he was speeding, as the force of the impact shoved the car under the truck in front, commented the New York Injury Lawyer.
Accidents like this are devastating for the family left behind and in this case, the family would likely have a solid wrongful death case to take to a personal injury lawyer. There will be other things that the police all over, including Nassau and Suffolk Counties, want to find out, including what the trucker was doing before the accident. In cases like this where a truck rear-ends another vehicle, you can count on the fact that the driver was not paying attention to driving.
All it takes is one split second with their eyes off the road and it’s too late to stop. In fact, big rigs can’t stop on a dime. While they may be able to slow down some, by the time they hit, they still do an enormous amount of damage.

Continue reading "Two dead in car wreck involving semis" »