March 10, 2013

In support of their motion, the opponents submitted the affirmed medical report

This is an action for personal injury in which a Bronx man alleges that he sustained an injury as a result of a motor vehicle accident. A vehicle owned by a cab cormpany struck the man's vehicle in the rear. The man claims that as a result of the accident he sustained spine injury, back pain, muscle spasms in lumbar spine and radiculopathy. The opponent however requests to dismiss the case agasint them on the ground that the man failed to meet the serious injury threshold.

In support of their motion, the opponents submitted the affirmed medical report of a radiologist who reviewed the MRI of the man's thoracic spine. The opponent also submitted the affirmed medical report of a board certified neurologist and the man's deposition testimony.

The Westchester radiologist found a scoliosis and diffuse degenerative changes of the thoracic intervertebral discs of the man and concluded that the small posterior disc protrusions present are of uncertain age and etiology and may be degenerative in nature.

The neurologist, who conducted a physical examination of the man, used a hand held goniometer to measure the man's ranges of motion and found a normal range of motion in all spheres. In her diagnosis, the neurologist determined normal neurological evaluation, no focal deficits and a neurologically intact. Aside from her quantification assessment, the neurologist also made a qualitative assessment, finding that the man was able to get on and off the bed and turn to his sides unassisted. He can boot, unboot, dress and undress without assistance. He can also move his head, neck and body freely during unguarded conversation. She further found no neurological disability and he has no restrictions on activities of daily living and no permanency or residuals.

The opponents also pointed the man's deposition testimony in which he testified that he is self-employed as an owner of a security guard company and is required to supervise his staff and to travel to three different locations during the day. He further testified that he stayed home three or four days after the accident and probably missed three weeks from work. He further testified that the only physical or athletic activity that he engaged in before the accident was weight training which he continues to engage in to a lesser degree.

The man initially seeks to discredit the opponents' experts. He argues that the neuroligist fails to review any of his medical records and the neurologist reliance solely on her onetime physical examination undercut her conclusion that the man did not sustain a serious injury. He also argues that the radiologist's conclusion after reviewing the MRI film that the small posterior disc protrusions were the result of degenerative changes not trauma is irrelevant and therefore the opponents failed to demonstrate that the disc bulges, herniated discs, limitation of flexion, extension and rotation of the man's thoracic spine as found by their own examining physicians did not demonstrate a serious damage.

The opponent however failed to meet the burden of showing that the man did not sustain a serious injury as a result of the accident. The papers submitted by the opponent in support of the motion included the affirmed medical report of his examining orthopedist which showed the existence of limitations in the range of motion of the injured the man's cervical spine. The bare conclusory opinion of the opponent's orthopedist is that the decreased range of motion is due to degenerative changes that are pre-existing and was without probative value.
Consequently, the court granted the motion of the opponents to dismiss the case filed against them and further dismissed the complaint.

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March 3, 2013

Passengers are injured in Car Accident

This action arises out of an automobile accident. It is alleged that at the time of the accident, the complainant man was the driver of a motor vehicle in which the complainant women were passengers; and that the complainants' vehicle was rear-ended by the defendants' vehicle.
Under the no-fault law, in order to maintain an action for personal injury, a complainant must establish that a serious injury has been sustained. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on the defendants to establish, by the submission of evidentiary proof in admissible form, that the complainant man has not suffered a serious injury. When a defendant's motion is sufficient to raise the issue of whether a serious injury has been sustained, the burden shifts and it is then incumbent upon the complainant to produce legitimate evidence in admissible form to support the claim of serious injury.

In support of a claim that the Westchester complainant has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physician or the unsworn reports of the complainant's examining physician. Once the burden shifts, it is incumbent upon the complainant, in opposition to defendant's motion, to submit proof of serious injury in admissible form. Unsworn reports of the complainant's examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician's personal examination and observations of the complainant is an acceptable method to provide a doctor's opinion regarding the existence and extent of a complainant's serious injury. Unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a legitimate case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician's own examination, tests and observations and review of the record rather than manifesting only the complainant's subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the Civil Practice Law and Rules to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice.

In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that the complainant sustained at least one of the categories of serious injury as enumerated in Insurance Law.

A Bronx physician's observation as to actual limitations qualifies as objective evidence since it is based on the physician's own examinations. Furthermore, in the absence of objective medical evidence in admissible form of serious injury, the complainant's self-serving affidavit is insufficient to raise a triable issue of fact.

The defendants have submitted proof in admissible form in support of the motion for summary judgment, against the complainant driver for all categories of serious injury, except for the category of 90/180-days. The defendants submitted the affirmed reports from two independent examining physicians (an orthopedist and a neurologist).

The affirmed report of defendants' independent examining orthopedist indicates that an examination conducted revealed a diagnosis of status-post cervical, thoracic and lumbar sprain/strain and status-post right knee injury. He opines that claimant does not need any treatment or testing from an orthopedic perspective. The orthopedist concludes that the claimant has no disability or work restriction.

The affirmed report of defendants' independent examining neurologist indicates that an examination conducted revealed a diagnosis of normal neurological examination, no focal deficits, neurologically intact, resolved cervical, thoracic, and lumbar sprain/strain, claimant's knee complaints are deferred to the appropriate specialty. He opines that claimant does not need any treatment or testing from a neurological perspective. The neurologist further opines that there is no disability at the present time. Finally, the neurologist concludes that there are no restrictions of activities of daily living, including work, at the present time.

The defendants have failed to raise a triable issue of fact as to the 90/180-day claim. When construing the statutory definition of a 90/180-day claim, the words substantially all should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment. The defendants' experts examined the complainant driver almost 4 years after the date of the complainant's alleged personal injury and accident. The defendants' experts failed to render an opinion on the effect the injuries claimed may have had on the complainant for the 180 day period immediately following the accident. The reports of the independent medical examiner (IME) relied upon by defendants fail to discuss this particular category of serious injury and further, the IME's took place well beyond the expiration of the 180-day period. With respect to the 90/180-day serious injury category, the defendants has failed to meet their initial burden of proof and, therefore, has not shifted the burden to the complainant to lay bare its evidence with respect to this claim. As the defendants have failed to establish a legitimate case with respect to the ninth category, it is unnecessary to consider whether the complainant driver’s papers in opposition to the defendants' motion on this issue were sufficient to raise a triable issue of fact. Accordingly, the defendants are not entitled to summary judgment with respect to the ninth category of serious injury, regarding the complainant driver.

The aforementioned evidence amply satisfied the defendants' initial burden of demonstrating that the complainant driver did not sustain a serious injury, with regards to all categories except for the ninth category of 90/180-days. Thus, the burden then shifted to the complainant driver to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law, as to all categories except for the ninth category of 90/180-days. Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint.

In opposition to the motion, the complainant driver submitted the uncertified police accident report, pleadings, unsworn medical records, an affirmation and narrative report of the complainant's physiatrist, an affirmation and MRI report of the complainant's radiologist, and the complainant's own affidavit.

A medical affirmation or affidavit which is based upon a physician's personal examinations and observation of the complainant is an acceptable method to provide a doctor's opinion regarding the existence and extent of a complainant's serious injury. The causal connection must ordinarily be established by competent medical proof. The complainant has established a causal connection between the accident and the injuries. The affirmation submitted by the treating physiatrist sets forth the objective examination, tests, and review of medical records which were performed contemporaneously with the accident to support his conclusion that the complainant suffered significant range of motion deficits in the complainant's neck and lower back.

The physician’s medical examination opines that the injuries are permanent in nature, significant, causally related to the motor vehicle accident and result in a permanent consequential impairment of the patient's abilities. Clearly, the complainants' experts' conclusions are not based solely on the complainant driver's subjective complaints of pain, and therefore are sufficient to defeat the motion.

Therefore, the complainant driver has raised a triable issue of fact and accordingly, the defendants' motion for summary judgment is denied in its entirety as against the complainant driver.

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February 24, 2013

Serious injury is questioned in a car accident case

This is a case resolving the motion filed by the defendant for a summary judgment on the ground that plaintiff did not suffer any “serious injury” in the car accident which preceded the filing of this instant case. The defendant alleged that the injuries suffered by the plaintiff do not belong to the same category as that which was defined under the New York State Insurance Law. Plaintiff was not able to submit any opposition to the motion.

This case sprang from the incident which occurred on April 8, 2010 in Westchester wherein the parties were involved in a motor vehicle accident which led to the injuries sustained by the plaintiff. According to the plaintiff, he sustained the following damages: partial tear of the left shoulder and spinal injuries.

Under the law, it is required that the movant for a motion for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. He must be able to establish his claim by tendering evidence to prove that the court must decide in his favor.

A motion for summary judgment requires that there must be no triable issue of fact presented by the movant. Thus, in this case, the defendant must prove, by competent and relevant evidence that the plaintiff did not sustain any serious injury which could have been the possible result of the vehicular collision between the parties.

On the other hand, the plaintiff must provide an objective proof of the injuries he sustained. An example of such evidence is a sworn MRI and CT scan tests. These tests must be paired with the physician’s observations during the physical examination of the Bronx plaintiff. There could also be factors that may override the plaintiff’s claim of serious injury such as: gap in the treatment, intervening medical problem, or a pre-existing condition which interrupted the chain of causation between the accident and the claimed injury.

The Court ruled that the plaintiff must demonstrate through competent, objective evidence, a “medically determined injury or impairment of a non-permanent nature” which would have been caused the alleged limitations on the plaintiff’s daily activities. This is required in order for the “medically determined injury or impairment of a non-permanent nature which prevents a person from performing substantially all of the material acts which constitutes such person’s usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury or impairment” clause.

In determining if the plaintiff is entitled to receive damages based on said clause, it is a must that the evaluation has an objective basis and the evaluation compares the plaintiff’s limitation to the normal function, purpose and use of the injured body organ, member function or system.

The Court ruled that the defendant in this case has established a prima facie case that the plaintiff did not sustain a serious injury within the categories of permanent loss of a body organ, member, function or system, a significant limitation of the use of a body function or system and a medically determined injury or impairment of a non-permanent nature which prevented a person from normally performing his daily activities. The plaintiff failed to provide proof of the extent of the damage or injury brought to him by the incident. Also, the evidence revealed that the plaintiff has formerly experienced a motor vehicle accident which has contributed to his present state.

On the other hand, the plaintiff failed to raise the issue of fact through objective medical evidence or any other type of evidence.

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February 17, 2013

Accident Occurs on Southern State Parkway

This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants' motion, and defendants have filed a reply.

A source said that, in support of this motion defendants submit, the pleadings; the plaintiff's verified bill of particulars; plaintiff's Hospital emergency department records, including x-ray reports of plaintiff's cervical and thoracic spine; the affirmed report of defendant's examining neurologist,; the affirmed report of defendant's examining radiologist,; the affirmed report of defendant's examining orthopedist,; plaintiff's employment verification records dated March 1, 2006; and plaintiff's deposition testimony.

A Spine Injury Lawyer said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Plaintiff's Hospital emergency department records for treatment rendered on the day of the accident show that he complained of pain in his neck and upper back. X-rays of plaintiff's cervical and thoracic spine performed at the hospital that day show no signs of fracture, dislocation, significant subluxation, or soft tissue abnormalities. The hospital radiologist opined that x-rays of plaintiffs thoracic spine taken that day showed mild degenerative changes and minimal biconcave scoliosis of the lower-thoracic-upper lumbar spine. Based on these findings, the attending physician diagnosed plaintiff with neck/back pain, but also found that there were no injuries to his head, shoulder, arm or leg. In his report dated August 30, 2006, the neurologist doctor states that he performed an independent neurological examination of plaintiff, and his findings include a motor examination that was "5/5" in all extremities with normal tone; DTR's that were "2 +" and symmetrical; an intact sensory examination; and a normal gait. The doctor opined that plaintiff had sustained sprains of the cervical and thoracic spine injury, but that there were no objective findings to indicate a neurological disability. He also concluded that plaintiff had a pre-existing history of a degenerative condition of the spine. In his report dated October 23, 2006, the orthopedic doctor states that he performed an independent orthopedic examination of plaintiff on that date, and his findings include no muscle atrophy; a negative straight leg raising test; and motor strength that was "5/5." His testing also showed a normal range of motion of the cervical spine, thoracic spine, shoulders, elbows, wrists and hands as well as no tenderness, heat, swelling, erythema or effusion of the upper or lower extremities. Additionally, he noted that plaintiff’s medical history included a prior neck and back injury. He opined that plaintiff had sustained sprains on the cervical and lumbar spine which exacerbated pre-existing injuries.

A Suffolk Spine Injury Lawyer said that, plaintiff Employment Verification records show that he was employed continuously with the from April 20, 1998 until the date of the verification, March 1, 2006. These records also show that plaintiff was paid in full from an LIRR sick bank from March 11, 2005 through to March 15, 2005, and from March 21, 2005 through to March 31, 2005, and that he worked on March 16 and April 1, 2005. Plaintiff testified that he was employed on a full-time basis as a plumber at the time of the accident. His duties included maintaining the plumbing systems at different stations and outlying buildings. He went to work the Friday after the accident, but he was sent home after a few hours. In total, he missed approximately three weeks of work as a result of his personal injuries. Upon his return, he performed the same duties as before, except that he was unable to lift heavy equipment or materials. He also has difficulty gardening and engaging in various sporting activities such as waterskiing. In addition, he restricts himself to a 40-hour week and has turned down available overtime since the accident. Plaintiff further testified that he was injured in a prior motor vehicle accident about 20 to 25 years ago, at which time he received some chiropractic treatment to his back.

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

Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The Court said that, in order to recover under the "permanent loss of use" category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

It is for the Court to determine in the first instance whether a prima facie showing of "serious injury" has been made out. The initial burden is on the defendant "to present evidence, in competent form, showing that the plaintiff has no cause of action". Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.

By their submissions, the Court held that the defendants made a prima facie showing that plaintiff did not sustain a serious injury. Defendants' examining orthopedist found, upon a recent examination, that plaintiff had a normal range of motion of the upper extremities with no atrophy. Similarly, defendants' examining neurologist, round, upon a recent examination, that plaintiff had normal range of motion of the cervical and lumbar spine, with no paravertebral tenderness or spasm. Furthermore, defendants' examining radiologist opined, based upon his review of plaintiff's MRI studies, that plaintiff had a multilevel preexisting degenerative condition of the cervical spine, but that there was no evidence of any causally related injuries. Defendants remaining evidence, including plaintiff's deposition testimony, also supports a finding that he did not sustain a serious injury. As defendants have met his burden as to all categories of serious injury alleged by plaintiff, the Court turns to plaintiff's proffer.

In opposition to this motion, plaintiff submits, among other things, the unaffirmed report of plaintiff's treating radiologist; and the affirmed report of plaintiffs treating osteopath. Initially, the unsworn report of the doctor that was discussed in detail by defendant's examining orthopedist has been considered as it is admissible. In his report, the doctor states that he performed MRI studies of plaintiff’s cervical spine, and his findings include straightening of cervical lordosis; diffuse disc dehydration; and posterior disc bulges. While he observed a ventral cord abutment at C-4/5 through C-6/7, he also noted that there were no significant protrusions into the neural canal, recesses or foramina. He opined that these studies showed no focal prevertebral or posterior paraspinal abnormal masses.

The Court held that, plaintiff has provided insufficient medical proof to raise an issue of fact that he sustained a serious injury under the no-fault. Initially, it is noted that plaintiff failed to submit any medical proof addressing his prior neck/back injuries as well as his condition relative to thereto. In this regard, the doctor failed to indicate awareness that plaintiff had previously injured his neck/back, therefore, any conclusion on his part that plaintiff's claimed injuries were causally related to the subject incident was mere speculation. The doctor also failed to adequately address the preexisting degenerative condition of plaintiff’s cervical spine as diagnosed by his own treating radiologist only two months after the accident, as he did not provide a sufficient foundation or objective medical basis supporting the conclusion which he reached, namely, that the alleged conditions were causally related to or exacerbated by the accident. Further, while the doctor records plaintiffs complaints of pain, he has failed to present medical proof that was contemporaneous with the accident showing any initial range of motion restrictions for the affected body parts. Additionally, the report of the doctor tends to show that plaintiffs injuries, which consisted of a cervical and thoracic sprains/strains and myofascial derangements, were mild, minor or slight. In any event, the doctor has not adequately explained the approximate 14-month gap in treatment between the conclusion of plaintiffs last exam on March 30, 2006 and his most recent examination of plaintiff in May 3, 2007, shortly after the filing of defendants' motion. Thus, plaintiff’s unexplained gap in medical treatment was in essence, a cessation of treatment that is not addressed by competent proof. Additionally, the proof submitted by the plaintiff is insufficient to raise a triable issue of fact.

Moreover, since there is no evidence in the record demonstrating that plaintiff's alleged economic loss exceeded the statutory amount of basic economic loss, his claim in this regard must be dismissed. Accordingly, the Court held that this motion for summary judgment is granted and plaintiff's cross motion is denied as moot.

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February 10, 2013

Taxi Involved in Car Accident

This action was instituted by the plaintiff for alleged personal injuries sustained in a motor vehicle accident occurring on January 27, 2003 at approximately 12.21 a.m. on Barton Avenue at or near its intersection with Valley Road in Patchogue, Suffolk County on Long Island, New York. A source said that, the plaintiff alleges that the defendant taxi company, being driven by co-defendant, attempted to make a left turn from Barton Avenue, eastbound, onto Valley Road without signaling and came into contact with the plaintiff's vehicle which was proceeding straight on Barton Avenue in a westerly direction. The plaintiff claims she hit the steering wheel and was bleeding from her left knee. This lawsuit thereafter ensued.

A Lawyer said that, the defendants now move for summary judgment pursuant to CPLR §3212 dismissing the plaintiff's complaint on the grounds that the plaintiff has not sustained a "serious physical injury" as that term is defined in Insurance Law §5102(d). The defendants submit medical proof to substantiate their claim that the plaintiff failed to sustain a "serious injury" in the car accident. The plaintiff opposes the requested relief in an attorney's affirmation arid submission of the plaintiff's deposition but proffers no medical proof to substantiate the claim of a "serious physical injury".The issue in this case is whether plaintiff sustained serious personal injury as defined under the Insurance Law.

The function of the Court on a motion for summary judgment is issue finding not issue determination. It is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is `arguable; `issue finding, rather than issue determination is the key to the procedure.

Although the question of the existence of a "serious injury" is often left to the jury, where properly raised, the issue of whether a plaintiff is barred from recovery in a judicial forum for want of a "serious injury" is, in the first instance, for the Court's determination. If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide.
Section 5104 of the Insurance Law provides that an individual injured in an automobile accident may bring a negligence cause of action only upon a showing that the individual has incurred a "serious injury" within the meaning of the no-fault law. Insurance Law §5102(d) defines "serious injury" as a personal injury which results in death; dismemberment, significant disfigurement and 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 can establish that a plaintiff's personal injuries are not serious within the meaning of Insurance Law §5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings support the plaintiff's claim. With this established, the burden shifts to the plaintiff to come forward with admissible evidence to overcome the defendants' submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. In this situation, the plaintiff must present objective medical evidence of the injury based upon a recent examination of the plaintiff. However, the plaintiff does not provide any medical documentation even though confronted by the defendants with three medical experts attesting to their examination of the plaintiff and their findings that plaintiff suffers from no significant limitation of use of a body function or system or permanent consequential limitation of movement or use of a body member.

Furthermore, the New York Court of Appeals has stated that a sufficiently described opinion by a doctor on the "qualitative nature of the plaintiff's limitations based upon the normal function, purpose and use" of that body part is sufficient even without specific degrees of limitation or an arbitrary cutoff of degree. However, the Court of Appeals went on to state that a diagnosis of a bulging or herniated disc, by itself, does not constitute a serious physical injury and the plaintiff must provide objective evidence of the extent and degree of any alleged physical limitation resulting from the spinal injuries, the duration and causality to any limitation of motion.

Generally a soft tissue injury with cervical and low back sprain does not meet the threshold for serious spinal injury. These were the types of injuries which the legislature hoped would no longer burden the court system under the no-fault scheme. Neither are subjective complaints of transitory pain due to cervical and lumbar sprains sufficient. Here, in the case at bar, the defendants present the affirmation of the doctor who conducted a neurological medical examination and found no neurological disability and normal range of motion tests; an orthopedic medical evaluation of the plaintiff by the doctor who found no permanent or residual injuries and who found no limitations of movements on the tests conducted and set forth in his medical report; and an affirmed radiological medical examination by the radiologist who found normal spinal alignment and no injury causally related to the accident. The Court finds that the defendants have met their burden of proof by the reports and affirmations of the medical authorities submitted on this motion.

At that point, supported by objective testing, it was incumbent upon the plaintiff to produce competent medical testimony and evidence showing that she sustained a serious physical injury. Plaintiff has failed to so assemble any competent medical proof to refute the defendants' medical findings of no serious injury. The plaintiff has failed to substantiate a permanent or serious physical injury with an objective test or finding. The proof adduced by the plaintiff relies upon unsupported conclusions by the plaintiff's attorney in his affirmation and the plaintiff's deposition testimony. Plaintiff's conclusory statements of undifferentiated pain and discomfort and range of motion restrictions, standing alone, without objective testing results or degrees of limitation is fatal to her complaint. She fails to raise a factual issue requiring a denial of the defendants' motion.

Here, in the case at bar, the Court is confronted with soft tissue injuries and subjective complaints of pain by the plaintiff in conclusory fashion only. The defendants detail the medical reports by the defendants' doctors suggesting no restrictions of movement or range of motion or any other pathology to support an injury. Clearly, the failure to submit some medical authority to support the plaintiff's subjective complaints of pain is fatal to her opposition to the defendants' motion and supports summary disposition and dismissal of the action.

Accordingly, under the facts and circumstances as presented in this case and after reviewing the deposition of plaintiff and the defendant, all the medical exhibits submitted in support of the motion and none being offered in opposition thereto, the Court concludes that the plaintiff has failed, as a matter of law, to establish the threshold of sustaining a serious physical injury or any causal relationship with the motor vehicle accident occurring on January 27, 2003. A review of the medical submissions has failed to raise a triable issue of fact that the plaintiff sustained a serious physical injury and therefore, the defendants' motion for summary judgment and dismissal of the plaintiff's action pursuant to CPLR §3212 is hereby granted and the plaintiff's action is dismissed.

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January 24, 2013

Surgery Keeps Woman Out of Work

A woman was driving her car sometime on June 10, 2005. She was involved in a vehicular accident. The impact caused her neck to snap back and her entire body was shaken violently. She lost consciousness and she was taken to the hospital by the emergency services. She experienced excruciating pain in her neck and left shoulder. An x-ray was taken of her and she was observed overnight in the hospital. The next day she was discharged but was advised to go for follow-up a neurologist. The woman experienced tingling and numbness from her back to her hips and from her shoulders to her fingers. Her neurologist advised her to undergo physical therapy.

The physical therapy alleviated the tingling sensation somewhat but the numbness persisted. The neurologist referred her to a neurosurgeon who advised her to undergo surgery on her spine. The woman was afraid of having any surgery on her spine so she went to a chiropractor instead.

Until the trial, the Queens woman testified that her arms, shoulders and hips become numb when she holds a position for a long period of time. She has trouble turning her neck and she has trouble lifting things. The woman is a nurse who works with newborns. She assists in deliveries of infants and she also cares for newborns in the intensive care unit. Her work involves standing for long periods of time which she now finds difficult to do without experiencing pain and numbness.

She claims that she has had prior injuries in 1986 when she sustained a concussion in a car accident. She also suffered injury in her right arm in 1992. She slipped on the ice in 2001 and at work a heating lamp fell on her which injured her shoulder.

The woman filed a cause of action in damages against the driver of the other car involved in the car accident. She claims that the car accident caused a serious injury for which she now claims compensation in damages.

In support of her claims, her personal Staten Island physician submitted a report which stated that the woman was undergoing treatment for chronic knee pain caused by sprain of the ligaments in the knee and in the patella. The doctor’s impression was that the woman needed a blood work-up to determine if she is suffering from rheumatism.

A radiologist also provided a report on an MRI which was performed on the woman’s neck at or around the time of the accident. The radiologist saw that there was degeneration in the cervical spine of the woman. There was narrowing and dehydration of her discs. The radiologist failed to state the probable cause of the degeneration in the woman’s cervical spine.

A psychiatrist who was also a neurologist also examined the woman and she reported that the range of motion of the woman’s lumbar spine was normal. However, there is nothing in the report that states what kind of range of motion tests were performed on the woman. The doctor opined that the woman has no neurological disability or limitations. The doctor could not see any reason why the woman cannot continue her usual and daily activities.

The opponent of the woman in this suit (the driver of the other car involved in the accident) filed a motion for summary dismissal asking that her cause of action be dismissed.

The Court held that the conflicting medical reports of the doctors who examined and treated the woman’s spine give rise to an issue of material fact that must be tried by a jury. The Court denied the motion for summary judgment and remanded the case for trial.

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January 12, 2013

Injured Party was taken to a Medical Center where he was evaluated

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

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

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

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

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

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

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

In sum, the alleged wrongful acts of the attorney were related and resulted in a single claim. While there were several wrongful acts, they were all related and constituted but one claim of legal malpractice under the policy language. Thus, the court finds that the judgment appealed from must be reversed and remanded for an entry of a declaratory judgment determining that the policy limit "per claim", and not the aggregate limit, applies.

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January 2, 2013

The opponent woman moves for summary judgment

This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a laborer for a Bronx construction company, and that he missed 11 days of work due to his spine injuries.

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

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

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

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

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

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

Moreover, the man failed to present competent medical proof contemporaneous with the accident showing significant limitations in spinal movement and the duration of such limitations. He also failed to provide evidence substantiating his allegations that he was forced to cease medical care just months after the accident, because his no fault benefits were terminated and he lacked the financial means to pay for such care. Finally, absent objective medical proof as to the significance or duration of the alleged spinal injuries, the man’s self-serving affidavit, which contains allegations of continued lower back pain and restricted movement, is insufficient to defeat summary judgment. Accordingly, summary judgment dismissing the complaint based on the man’s failure to meet the serious injury threshold is granted.

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December 29, 2012

The man retained a law firm to investigate and initiate a medical malpractice action

A Manhattan man suffered serious as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury.

As a result, the attending Westchester surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

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

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

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

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

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

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

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

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

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

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

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

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit "per claim" and not the aggregate limit applies in this case.

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December 7, 2012

Brain and spinal injuries qualify as serious injuries

On July 23, 2007, a man was sitting at the traffic control light located at Greenwich Street and Jerusalem Avenue in Nassau County, New York when another vehicle hit his. The other vehicle made contact with his vehicle in a same direction side swipe manner. As the vehicle was driving past his in the same direction, it swerved and the offending vehicle swept up the passenger side of the man’s car from the rear passenger side area to the front. The man filed a personal injury and 90/180 case against the driver of the other vehicle.

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

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

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

The court reviewed the case and examined all records associated with it. The court is reluctant to grant summary judgment dismissing a case because New York Law considers that a person has a right to argue their case in court. When there is even the slightest chance that there may be arguable points of fact, then the case will not issue a summary judgment and will forward the case to court for trial. In this case, although the man had provided doctor’s letters, they were not sworn documents. The primary test result that he was depending on to make his case, was not signed or properly admitted. Further, the fact that the man had obtained employment within four months of suffering his injury and stopped all medical treatment for a period of two years before filing this claim is suspect. The man provided no explanation for his failure to obtain treatment for two years following the accident. With these facts in mind, the court approved the other driver’s request for summary judgment and dismissed the case against him.

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November 10, 2012

The plaintiffs agreed that there is a necessity for regulation of the tow car industry

In this case, the Court ruled that Section 12.0 of Ordinance No. 40 of the Town of Hempstead entitled “Operation of Tow Cars” is valid and constitutional.

The plaintiffs are in the tow car business and are licensed tow car operators in the Town of Hempstead in Nassau. The Plaintiff is seeking to declare certain sections of Ordinance No. 40 of the Town of Hempstead entitled 'Operation of Tow Cars' unconstitutional and void and to enjoin any action and enforcement thereunder.

The plaintiffs agreed that there is a necessity for regulation of the tow car industry. They contend, however, that section 12.0 is prohibitory, not regulatory, and therefore unconstitutional.

Section 12.0 states:

'Sec. 12.0 It shall be unlawful for any person to drive along any street or bridge in the Town of Hempstead and solicit towing work. Solicitation of towing work by the Suffolk operator or other occupant of a tow car while parked on any street or bridge is also prohibited. A tow car operator shall not proceed to the scene of a disabled motor vehicle without having been requested or notified to do so by the owner or his authorized representative or the Police. Responding to a call, merely upon notification from gas station attendants, taxicab drivers [13 Misc.2d 1056] or other unauthorized persons shall be considered in violation of this provision.'

The court held that Section 12.0 does not prohibit as did the ordinance in the Grant and Good Humor cases. Whereas the use of public streets was prohibited in those invalid ordinances, under section 12.0 tow cars may still travel the public streets for towing purposes. In fact, they are authorized to tow when 'requested or notified to do so by the owner or his authorized representative or the police'; and under section 12.1 tow car owners and operators are required to service a disabled car when requested by the owner of the disabled car who is able and willing to pay the required towing fee. What is prohibited is 'solicitation of towing work' by the operator or occupant of a tow car while on the public street at the scene of a motorcycle accident, and going to the scene of an accident for the purpose of solicitation at the scene of the car accident. Other solicitations by tow car operators are not prohibited.

The mere fact that tow car operators may from time to time have been of assistance to injured persons by their ability at times to get to the scene of an accident first may warrant them some praise, but that does not permit the conclusion that the ordinance is therefore invalid. Such acts are gratuitous and not obligatory. The primary responsibility in such matters rests on the county, the town and the police.

In short, section 12.0 does not prohibit the use of public streets to tow cars nor does it prohibit all solicitation of towing work. What it does prohibit is unregulated solicitation that interferes with the free choice by the damaged car owner who is in a poor position or condition at that moment to property protect himself, the racing to the scene of an accident by tow car operators to first solicit and garner the towing contract with the resultant interference with the rights of other motorists and traffic in general, and the interference with the proper police investigation and other necessary police work at the scene of the accident.

Accordingly, so long as there are motor vehicle accidents the number of towing jobs available will keep pace with the number of these accidents. The towing business will not be diminished or interfered with by this ordinance. What is diminished or interfered with by this ordinance is dangerous 'chasing' to the scene of an accident, unwarranted 'avalanche' solicitation of emotionally upset, confused or dazed operators involved in accidents, and interference with proper investigation and other work by the police at the scene of the accident.

Furthermore, the Court stated that the fact that a better ordinance may have been drafted is also not a sufficient objection. Constitutionality does not require perfection.

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October 17, 2012

The orthopedist also affirmed that the woman is partially disabled

A complainant woman commenced an action for her claimed of personal injuries resulting from a motor vehicle accident.

According to the woman's statement, after the car accident the police responded to the scene but an ambulance did not arrive. The Queens woman then exited her vehicle unassisted, without any pain in any part of her body and was capable of driving her vehicle from the scene to her workplace. The woman testified that she first sought medical attention when she felt some pain in her lower back and headaches. X-ray examinations were taken and chiropractic treatment was rendered by a physician. She further testified that she was treated by the same physician regularly until the winter and eventually discontinued the treatment. Thereafter, she received physical therapy two or three times per week for a few months. She also testified that she visited an orthopedist on three or four occasions.

The woman no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does have any future medical appointments scheduled. She testified that she was confined to her bed for one day as a result of the accident and missed less than one week of work. The court notes that the testimony contradicts the woman's bill of particulars.
The woman also claims that as a result of the accident she sustained several spinal injuries. She contends that the injuries was due to the motor vehicle accident and qualify as serious injuries in insurance law. Based on records, serious injury under the insurance law is defined as death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use of body organ, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and a medically determined damage of a non-permanent nature that prevents the injured person from performing substantially all of the material acts which constitute his usual and customary daily activity for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the incident.

Based upon the plain reading of the papers submitted, the woman is not claiming that her injuries fall within the first five categories of the serious injury definition which includes death, dismemberment, significant disfigurement, a fracture or loss of a fetus. Therefore, the Staten Island court restrict its analysis to the remaining four categories of insurance law that includes 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 damage 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 incident.

Consequently, the opponent of the woman move to dismiss the action against her on the ground that the complainant’s injuries do not meet any definition of serious injury as defined in insurance law.

Based on records, in moving to dismiss the case, the opponent must make sufficient evidence that the complainant woman did not sustain serious damages within the meaning of the law. Once it is established, the burden then shifts to the complainant to come forward with evidence to overcome the opponent’s submissions by demonstrating a triable issue of fact that a serious harm was obtained.

The opponent submits a physician's affirmation from an orthopedist. In his affirmation, the orthopedist indicated that his physical examination to the woman was essentially unremarkable with completely normal functional capacity of the cervical and lumbosacral spine areas, as well as the upper and lower extremities. Based upon his review of the provided medical records and his examination, there was no evidence of radiculopathy. He dismisses the possibility of a compression deformity of L3 as indicated on the MRI findings as it is related to a schmorl's deformity as documented in the official MRI report and is not related to a posttraumatic event or to the accident.

The orthopedist further states that as a result of the accident, the woman sustained mild strains of the cervical and lumbosacral spine areas. The condition resolved uneventfully with the passage of time. There is no evidence of disability, sequelae or permanency. The woman has a completely normal functional capacity of the musculoskeletal system and no further treatment is needed.

In opposition to the opponent’s instant applications, the woman submitted records from three doctors. She also submits her own affidavit.

The MRI report of the cervical spine prepared by one of the doctor indicates the there was a posterior disc herniations at cervical spinal nerve 5-6 and at cervical spinal nerve 6-7 which is both eccentric toward the left impinging on the anterior aspect of the spinal canal and on the left intervertebral foramina. With the MRI report of the lumbar spine prepared by the orthopedist, it indicates a posterior disc herniation at lumbar spinal nerve 5 to sacral spinal nerve 1 impinging on the left nerve root. In addition, there is also a mild central compression deformity in the lumbar spinal nerve 3 vertebral body superiorly with an associated schmorl's node and probably had no acute significance. It is an osteoarthritic changes’ at lumbar spinal nerve 4-5.

The orthopedist also affirmed that the woman is partially disabled and that her injuries are causally related to the car accident. He indicates that the woman suffered a decreased range of motion in her cervical and lumbar spine. He recommended chiropractic care, physical therapy, and epidural injections.

A neurologist also affirmed that upon range of motion testing with inclinometer there is a limitation of the cervical spine and lumbar spine. The neurologist moreover conducted a nerve conduction studies, wave studies, reflex studies and EMG studies. The electrodiagnostic study revealed evidence of right L5-S1 radiculopathy. He also performed additional range of motion testing with inclinometer which revealed decreased range of motion of the lumbar spine. Based on record, inclinometer usually used to measure and evaluate ranges of motion of the human joint. In his letter, the neurologist states that the woman’s lapse of treatment was due to the fact that the patient was recommended to continue physical therapy.

The woman additionally submitted her own affidavit which states that as a result of the accident, she was unable to attend her employment for several days. She was confined to her home after work and on weekends for approximately four (4) months following the accident. She indicates that she stopped seeing her orthopedist and his neurologist because she didn't believe that the treatment would improve her condition and her insurance had stopped paying for treatment which she could not afford to pay herself.

When the court examined the medical evidence offered by the woman on a threshold motion, the court ensure that the evidence is objective in nature and that the woman’s subjective claims as to pain or limitations of motion are sustained by verified objective medical findings. Consequently, the court denied the motion of the opponent to dismiss the claims against her.
There are times that when emergency occurs, instant reaction from our body comes out and gives as extraordinary strength, swift movement and even unusual tolerance to pain.

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October 10, 2012

Locustwood

This involves a case where the court ruled that plaintiff did not sustain a “serious injury” contemplated under New York State Insurance Law § 5102(d).

A car accident occurred on January 30, 2008, at approximately 8:15 a.m., at or near the intersection of Hempstead Turnpike and Locustwood Boulevard, Elmont, Nassau County, Long Island. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike. Plaintiff claimed that she looked before crossing and did not see any vehicles on Locustwood Boulevard making a turn onto Hempstead Turnpike. Plaintiff further claimed that, as she was crossing Hempstead Turnpike, she was struck in the rear, specifically her lower back, by the front of defendant's vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced an action by the filing a Verified Complaint for spinal injuries sustained.

Defendant argued that plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendants vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment.

The court ruled that there is an issue of fact with respect to whether the wind, turning plaintiff's umbrella inside out, caused plaintiff to walk backwards into the defendant's vehicle.

Defendant submitted that the clinical findings and diagnosis reported by the physician who examined plaintiff in the Franklin Hospital Emergency Room after the subject accident establish that plaintiff did not suffer any "serious injury" in the accident. . Upon examination, it was noted that plaintiff's neck was supple and all extremities were normal. Plaintiff also had a normal musculoskeletal and neurological examination. The attending physician in the Emergency Room sent plaintiff for x-rays of her cervical spine, lumbosacral spine and pelvis, which were negative for fracture and dislocation.

Based upon this evidence, the Court found that the 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).

To oppose defendant’s motion, plaintiff submitted unsworn medical reports of treating physician. However, the court ruled that said reports do not constitute competent admissible evidence in opposition to defendant's motion for summary judgment as unsworn reports of the plaintiff's examining doctors are not sufficient to defeat a motion for summary judgment. Further, the defendant argued that in the affirmation of the physician, the physician did not provide explanation for plaintiff’s gap in treatment from March 3, 2009 to September 13, 2011 and that said failure to explain the gap in treatment is fatal to the opposition.

The Court held that 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. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

According to the court, plaintiff did not provide the Court with evidence of any physical therapy she may or may not have been taking part in since the date of the accident. Also, there was no statement from any doctors that plaintiff had reached her maximum possible medical improvement and that further treatment was unnecessary. Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff's objective medical proof of limitations and permits dismissal of plaintiff's Verified Complaint.

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October 3, 2012

The Court held that the lady driver of the Honda Civic

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in traffic waiting for the light to turn green when a Jeep hit her car from behind. The impact of the rear-end collision pushed her Honda Civic one car length away. Her Honda Civic struck the car in front of her.

The impact of the collision sent the lady driver of the Honda Civic in a lurching motion. She hit the steering wheel and was pulled back by gravity so that she hit her neck and back on the head rest. She claims that she twisted her neck and was in pain.

She claims that she sustained spinal injury in her cervical and lumbar spine. She claims to have discs that have been misaligned and resulted in swellings which brought about impingement of the nerves and great pain.

The owner and driver of the Jeep seeks the dismissal of the complaint on the ground that the lady driver did not sustain a serious injury. They produced evidence that the lady driver did not miss any work from the time of the accident. They also produced evidence that the lady driver went out of the country to travel abroad on at least three occasions after the accident until the time of the trial.

The Jeep owner also provided evidence by way of physicians’ reports and MRI and CT Scans of the lady driver immediately after the car accident. The doctors examined the lady driver and performed range of motion tests on her and their findings show that the range of motion of the lady driver’s spine was within normal range.

The Bronx doctor who interpreted the MRI findings gave an opinion that the pain and swellings of the discs of the spine of the lady driver were not caused by the accident but these were caused by a degenerative spinal condition that is due to the wear and tear on the spine as a result of aging.

The lady driver opposed the motion for summary judgment filed by the owner of the Jeep. She produced medical findings of doctors who treated her from the time of the accident until the time of the trial. Her medical experts claim that she has sprained her lumbar and cervical spine such that she suffers pain when she sits or stands for a long time. She also claims that she is unable to lift objects and unable to do chores in the house as a result of the constant pain she suffers.

She also answered the allegation of the owner of the Jeep that she did not miss any day of work after the accident. She claims that she could not afford to miss work so she showed up for work although she was heavily medicated. She also claims that her daily activities have been limited as her constant pain renders her unable to do the things around the house that she used to do.

She also presented the diagnosis, findings and opinions of her Long Island chiropractor who testified that she suffered sprain in her cervical and lumbar spine which caused her spine to be misaligned. The misalignment impinged on nerves which cause her considerable pain.

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

The Court held that the lady driver of the Honda Civic had succeeded in raising material issues of fact that must be resolved by a jury. The plaintiff in her own affidavit and in the affidavit of her attending physicians have raised the issue of fact as to whether or not the spinal injury she suffered were caused by the accident. The motion for summary judgment is denied.

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October 1, 2012

On this appeal the employer contends that claimant's disability is causally

Claimant, employed as a policeman by the Nassau County Police Department, was accidently shot in the abdomen on November 8, 1953 as he was removing a shotgun from a police car. Compensation in the form of reimbursement to the employer was paid for intermittent periods of lost time, and the case was closed upon finding of no further disability. On November 1, 1962 claimant was in an automobile accident while on police duty and sustained injuries to his neck and back. Compensation in the 1962 case was paid for several weeks, and the case was eventually closed pending the outcome of a third-party action which was later settled without the consent of the employer. Thereafter, claimant was relieved of all police duties and went on sick leave and performed no work thereafter.

A Lawyer said that, Dr. Masoff, claimant's physician, reported to the employer that he had examined claimant, that claimant had pain in his right side for about four months with no relief; and that claimant had pain in his right side radiating to his lower back and down his life lower extremity, and requested authorization by the employer to hospitalize claimant for x-rays and further treatment. Upon a C--4 medical reports by Dr. Masoff filed which indicated recurrent back pain necessitating x-rays and hospitalization, the Workmen's Compensation Board on reopened the 1953 case upon the report of changed condition and directed that the Special Fund be placed on notice.

A Nassau Personal Injury Lawyer said that, claimant was admitted to the Smithtown General Hospital and placed in pelvic traction and bed rest. After consultation with Dr. Levitan and Dr. Stein, an operative procedure was done by Dr. Levitan and Dr. Stein to probe the 1953 shotgun wound. Claimant was fitted with a Knight Spinal Brace and was discharged from the hospital on August 17, 1965.

On February 13, 1968 the board determined that claimant was receiving full pay for his disability in accordance with rule 11 of article 7 of the County Police for a spinal injury on police duty; that claimant applied for and has been doing clerical work since February, 1964 'as he could not stand the cold weather'; that his assignment to light work in February, 1964 at full wages with knowledge that his disability was due to compensable spinal injury constituted advance payment of compensation by the employer within three years from the application for reopening; and that claimant's disability is causally related to the 1953 car accident. The board made a finding that the testimony of Dr. Levitan related 'only to the disability due to the 1953 accident'; denied the request of the employer that the Referee's decision relieving the Special Fund be reversed, and reaffirmed its decision of February 13, 1968.

On this appeal the employer contends that claimant's disability is causally related to both accidents; that advance compensation was not paid the claimant, and the Special Fund should not have been relieved from liability. Respondent Special Fund contends that its discharge is supported by the facts and the law and that in any event, there is no substantial evidence to support the board's finding that claimant's disability is attributable solely to the 1953 accident.
The issue in this case is whether the Workmen’s Compensation Board erred in discharging the Special Fund for Reopened Cases from liability under section 25(a) of the Workmen’s Compensation Law.

The Court said that, at the hearings the Special Fund attempted to establish advance payments of compensation by the employer by reason of payments made to claimant after June 16, 1965 in accordance with rule 11 of article 7 governing the Nassau County Police Department and by reason of the claimant's assignment to clerical duty in the month of February, 1964 asserting that this was an assignment to light duty. The determination of the board clearly rejected the contention that the payments pursuant to article 7 after June 16, 1965 were advance payments of compensation.

The board's determination that the payment of full salary to claimant after assignment to clerical duty in February, 1964 constituted advance compensation is not supported by the evidence or by the law. There is no evidence here that only disabled police officers were assigned to clerical duty, or that the claimant did not earn his wages and that the salary paid was actually a gratuity. Compensation does not include wages paid for value received. If any part of wages is to be deemed an advance payment such part must necessarily be found gratuitous. If an injured employee returns to work and fully earns his hire there is nothing gratuitous in such an arrangement. In that case the employer gives him nothing; he merely pays for the worth of services performed. Of course an employer may furnish work to an injured employee in the nature of a sinecure at full wages, and doubtless in such a case the board may, within the range of its fact finding power, find the element of gratuity. The test is whether the employer paid for something he did not get in the way of service.
The Court held that, in this record there is nothing of substance which indicates that the employer did not receive full value for claimant's wages, and the board's finding of advance payment of compensation must be reversed. The board's determination that claimant's disability is causally related only to the 1953 accident also finds no support in the record. The conclusion of the board that Drs. Levitan and Tolmach testified that claimant's disability was due to the 1953 accident finds no support in the record. Dr. Levitan limited his testimony to the treatment rendered claimant by reason of the 1953 accident and, although he stated that claimant would have pain due to the 1953 accident, he further testified that at the time he treated the claimant, he was also being treated for complaints in connection with his back spine injury on November 1, 1962, but that he treated claimant only for the shotgun injury and did not go into the back complaints. Dr. Levitan from Suffolk also testified that a spinal brace given claimant upon discharge from the hospital was for a low back spine injury and not by reason of the shotgun injury. While Dr. Tolmach testified that if claimant had an operation by reason of the gunshot wound, he would be disabled at that time, and this because of the 1953 accident, he also testified that if the claimant had left lower extremity pain, it would be from low back disability and apparently limited his testimony to the 1953 accident alone. The testimony of Drs. Levitan and Tolmach then are consistent with the testimony of Dr. Masoff to the effect that claimant's complaints of pain in the left lower extremity were due to the low back injury of 1962 and had nothing to do with the shotgun injury of 1953, and that the complaints were due to both accidents. He further testified that any pain from the shotgun wound would be local to the right side and would not radiate to the left lower extremity. Thus, there was no basis upon which the board could conclude that claimant's disability was due to the 1953 accident alone.

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September 15, 2012

On November 6, 2009, at around 11:30am, a car had stopped at a red light at the corner of 86th

On November 6, 2009, at around 11:30am, a car had stopped at a red light at the corner of 86th Street and 7th Avenue in Brooklyn. The car had stopped for around ten seconds when it was hit from the rear end by a van owned by a private company and driven by one of its employees. As a result of the rear-end collision, the driver of the car sustained a shoulder injury which had to be surgically repaired twice.

The defendant in his deposition claimed that it was raining on that day and hour when the car accident occurred. He also claims that the car accident was not really a rear-end collision but that the van tried to swerve to avoid hitting the car in front of him. He claims to have succeeded in that only the end of the van’s bumper hit the end of the car’s bumper. The defendant also claims that the car stopped abruptly in front of him which made it impossible for him to stop in time and avoid hitting the car in front of him.

These allegations of the defendant in his examination before trial were never made part of the police report accomplished by the police officers who responded at the car accident scene. These allegations were also never contained in the report filed by the employee when he explained the accident to his employer. The car owner points out that the police report clearly showed that the van hit the car squarely in the rear.

For these reasons, the car owner filed a motion for summary judgment. He asserts that there are no material issues of fact that still need to be tried before a jury. He also asserts that his claims for damages arising from the injury sustained in the car accident be granted.

The defendant van owner opposed the summary judgment prayed for by the car owner. He claims that the van stopped behind the car when the light turned red. But then when the light turned green the car started to move but abruptly stopped. This was when the collision took place.

The only question before the Court in Queens is whether or not the car owner’s motion for summary judgment should be granted.

The Court held that there are no issues of material fact that must still be tried before a jury. The Court pointed out that a vehicle in the rear is duty bound to keep a safe distance from the car in front of it. The car in the rear must maintain a rate of speed and control over his vehicle so as not to hit the vehicle in front.

The Court appreciated the fact that the car was already stopped at the red light when the van hit it from behind. When a car accident involves a vehicle hitting a parked or stopped vehicle from behind, an inference arises that the vehicle in the rear which bumped the stopped car is the vehicle at fault.

The law presumes that the bumping vehicle was negligent. A mere allegation that the parked car “suddenly” or “abruptly” stopped cannot defeat the presumption of negligence. This is because the law impose a duty on every car and car driver to maintain sufficient distance between his car and the car in front of him to give allowances for such sudden stops.

For the failure of the van owner to prove that there are still issues of material fact that need to be tried before a jury, the Court granted the motion for summary judgment filed by the car owner.

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September 3, 2012

This action arises from a motor vehicle accident

This action arises from a motor vehicle accident which occurred at or near the intersection of Hempstead Turnpike and Lincoln Road, Franklin Square, County of Nassau, State of New York. The accident involved two vehicles, a 1998 Mercedes Benz owned and operated by plaintiff and a 1994 Ford Pick-Up Truck owned and operated by defendant. Plaintiff commenced the action by the filing and service of a Summons and Verified complaint for damages.

A Lawyer said that, it is plaintiff's contention that at the time of the car accident his vehicle was stopped at a red light on Hempstead Turnpike, and had been so for approximately ten seconds, when it was violently struck in the rear by defendant's vehicle. In his Affidavit in Support of his motion, plaintiff states, there is nothing to my knowledge and belief that I could have done to avoid this truck accident. My actions of obeying the New York State Vehicle and Traffic Laws were obviously no factor in causing this accident. Based upon Defendant's conduct and the physical objective facts, it is clear that the Defendant's negligence was the sole cause of this truck accident and that the Defendant's conduct fell well below the standard of reasonable care that one should employ and utilize when operating a motor vehicle within the State of New York.

Plaintiff moves, pursuant to CPLR § 3212, for an order granting partial summary judgment against defendant on the issue of liability upon the ground that there are no triable issues of fact and that, as a matter of law, plaintiff is entitled to such judgment; and, upon granting summary judgment, for an order setting this matter down for an assessment of damages. Defendant opposes the motion.

Plaintiff argues that there are no questions of fact to be determined by a jury in connection with the issue of liability in this matter.

Defendant first argues that plaintiff's summary judgment motion should be denied as premature because the Examinations Before Trial have not yet been conducted. In opposition to plaintiff's motion, defendant submits his own Affidavit in which he claims that he has a non-negligent reason for not being able to stop and thus there are issues of fact in this matter. Defendant states “on the day of the car accident, I was traveling about 25 m.p.h. westbound on Hempstead Turnpike, approaching Lincoln Road in Hempstead, New York. It was a windy, rainy morning. When I was about 80' from the intersection there was a small yellow school bus in the left of the two west bound lanes. I then began to apply my brakes and started to slow down. I turned on the right directional signal to go into the right lane, with my foot still on the brake pedal. However, after entering the right lane, the brakes were no longer slowing down my vehicle. The front of my vehicle struck the rear of plaintiff s vehicle. After the accident I exited my vehicle and saw a white plastic garbage bag and other garbage including empty egg cartons, papers and cardboard on the roadway under my tires, which was the cause of my being unable to stop or turn the vehicle to avoid the impact. The garbage placed at the curb for garbage pickup apparently was blown into the street by the weather. Police responded to the scene and I advised the police officer of the garbage that caused the car accident. The police officer confirmed the garbage as the cause of the accident. Defendant also submits the Police Accident Report in support of his opposition, in which the responding officer wrote in the Accident Description/Officer's Notes section, "MV1 and MV2 were in collision. MV1 OP stated that he tried to stop but due to debris in the road and slippery pavement his vehicle skidded and struck MV2. Findings of investigation revealed the cause." Defendant therefore argues that issues of fact exist with respect to the allegations of his negligence.

The issue in this case is whether defendant is liable for damages caused by the accident, warranting plaintiff’s grant of partial summary judgment on the issue of liability.

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

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. 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. 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 § 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.

As noted, 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, thereby requiring the operator 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. See VTL § 1129(a). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident.

The Court held that, plaintiff, in his 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.

After applying the law to the facts in this case, the Court finds that defendant has demonstrated an issue of fact which precludes summary judgment by providing a non-negligent explanation for the collision, specifically the alleged condition of the debris on the road which caused his car to skid and strike plaintiff's vehicle. As discussed above, said condition was confirmed in the Police Accident Report.

Therefore, plaintiff's motion, pursuant to CPLR § 3212, for an order granting partial summary judgment against defendant on the issue of liability upon the ground that there are no triable issues of fact and that, as a matter of law, plaintiff is entitled to such judgment; and, upon granting summary judgment, for an order setting this matter down for an assessment of damages is hereby denied.

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August 27, 2012

The defendants claim that there is no objective medical evidence

A man was involved in a car accident in 2002 and he sustained injury in his shoulders, neck and back. According to an MRI report his spinal injury involved bulging discs that impinged his spinal canal. He received treatment and therapy for his injury and he also received compensation for the spinal injury he sustained when he missed work for the days of his confinement until he recovered from his injury.

In 2008, the man figured in another motor vehicle accident. He filed a suit for damages from a personal injury he sustained when he injured his back, shoulders and neck. He claims that he is in constant pain; he has lost strength in his arms; he has lost the full range of motion in his back and neck; and cannot perform his regular daily tasks and perform his regular work.
The man sued the defendants who were owners of the motor vehicle that figured in the accident as well as their insurer. He claims that he sustained serious injury for which he demands compensation under the Insurance Law.

The defendants filed a motion for summary judgment asking for the dismissal of the complaint. The defendants claim that the injuries complained of by the man in 2008 were the exact same injuries he claimed and received compensation for way back in 2002. They presented evidence to prove that after the accident in 2008, the man was brought to the emergency room where x-rays were taken. The physician who interpreted the x-ray plates reported that there were no fractures, no dislocation or abnormalities in the bones. The report also stated that his spinal discs were normal.

The defendants also gave proof that the man went for treatment and therapy for three days after the 2008 accident but after three days, he stopped going to therapy for seven months. On top of that, in 2010, a physician conducted a range of motion test on the man and found that all the strain on the muscles of the neck, back and shoulder have all been resolved.
The defendants claim that there is no objective medical evidence that the man sustained a serious injury that would render him unfit to work or perform his customary daily tasks for eight months.

The only issue before the Court is whether or not the motion for summary judgment should be granted.

The Court held that the defendants have sufficiently proved that they are entitled to a summary judgment but that this merely serves to shift the burden to the man to prove that there still remains a material issue of fact that needs to be resolved by a jury.

The Court then turned to look at the evidence provided by the man. He submitted an affidavit where he alleged that he is in constant pain and that he moves with difficulty and can no longer perform his regular work or even do household chores. The Court then held that it is not sufficient for the man to merely make a subjective complaint of pain. There must be objective medical proof of a serious injury. There must be an examination by a physician who can report the existence of a serious injury. The Court in Queens, New York City also held that even if there exists proof of serious injury, if there is also proof that there are factors or events that interrupt the chain of causes between the car accident and the injury he sustained, the motion for summary judgment may still be granted.

The man submitted an affidavit of his chiropractor. The affidavit states that the injury sustained by the man was related to the 2008 accident. The Court rejected this affidavit as insufficient because it makes conclusions without presenting the objective facts on which the conclusions were based.

The expert presented by the man failed to rebut or even address the findings of the attending physicians of the man in 2008 that showed that the injury he complains of in 2008 were already present as early as 2002.

The Court also rejected the chiropractor’s affidavit because it totally contradicted a similar affidavit she executed in 2002 stating that the same injury complained of by the man had also rendered him unfit for his customary employment and unable to perform his normal daily activities.

The Court granted the motion for summary judgment.

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August 22, 2012

At the time of the accident, claimant was 53 years old

At the time of the car accident, claimant was 53 years old, with a medical history that included a heart attack, and treatment of high blood pressure. As she was driving at or near highway speed with two of her grandchildren in the back seat, a chunk of concrete measuring approximately 9" x 12" x 6" hit the front hood of her car, penetrated the windshield, hit the steering wheel, and then struck claimant on the left side of her forehead, rendering her unconscious. Claimant's car drifted off the right side of the roadway, eventually striking a tree beyond the right shoulder of the roadway and coming to rest. At the time of the accident, claimant was wearing a lap belt with a shoulder harness seatbelt.

Claimant regained consciousness while she was still in her car. Her first memory after the accident is of regaining consciousness while lying halfway on her back, seeing a large hole in the windshield, reaching for a tissue because there was blood in her eye, and realizing that she was being attended to by another person. Claimant inquired many times about the safety of her grandchildren before again losing consciousness. Thereafter, claimant was brought in the emergency room at Albany Medical Center (AMC).

A source said that, claimant was admitted to AMC, and was treated by neurosurgeon Dr. John Waldman. Initial CT scans of claimant's skull taken the day of the accident indicated that she had suffered numerous skull fractures in the area of her left eye socket involving the forehead bone behind her left eyebrow, the bones of the outer upper part of the eye socket, the roof of the eye socket, and the upper part of the eye socket near the temple, as well as fractures of the bones along the left side of her sinuses behind her nose. In addition, the initial CT scans indicated a small epidural hematoma (i.e. a blood clot between her skull and the dura, the fibrous material that covers and protects the brain), a traumatic subarachnoid hemorrhage (blood in the fluid between the brain and the dura), and bloody fluid in the ethmoid sinus. The CT scans also revealed pneumocephalus (air inside the skull cavity), indicating that the dura may have been torn at the time of the head injury. The CT scans also indicated that claimant had sustained trauma in the area of the skull where the olfactory nerve (the nerve that senses odors) is located. In addition, claimant had a deep laceration of approximately two inches on her forehead above her left eyebrow.

Surgical intervention to reduce or repair the fractures was unnecessary, and the fractures in her skull were left to heal on their own. Cranial surgery to address the blood and air within claimant's skull was determined to be unwarranted, as the blood in claimant's skull was not life-threatening, and CT scans taken the day after her accident indicated that the intracranial blood and air were resolving. Dr. Waldman advised claimant to refrain from blowing her nose because of the cranial fractures and the head injuries to her skull. While claimant's facial laceration was sutured at AMC on the date of the accident, no reconstructive work was performed during her hospitalization.

A doctor said that, during claimant’s first night at AMC, claimant drifted in and out of consciousness and experienced pain in her entire head, with pain in her eye sockets that felt like somebody was sucking her eyes out. Swelling around claimant's eyes caused her to have difficultly seeing during her first night at AMC, especially out of her left eye. Following her discharge from AMC, claimant recuperate at home for at least two weeks before resuming work on a part-time basis as a bookkeeper and cleaner for her husband's contracting business. In addition to the physical pain, claimant testified that she feared death in the weeks following her accident, as her father had died suddenly from a cerebral hemorrhage a week after sustaining a head injury.

A Lawyer said that, after the accident, claimant suffered from neurological problems that she did not have before the accident. According to claimant, in the six or seven weeks following her accident, her thinking was "way off." Specifically, claimant had problems with comprehension and expressing herself, and had difficulty carrying on conversations and remembering the names of close family members. Claimant suffered daily headaches for approximately two months after her accident that she treated with ibuprofen. During the first six to eight weeks following the accident, claimant had a difficult time controlling her emotions and would cry for no reason. Claimant also suffered from problems with her balance in the six months following the accident, and she experienced three episodes during which she blacked out momentarily.

Claimant's initial problems started to subside a few months after the accident, but she continues to experience noticeable difficulties. At trial, claimant presented as lucid and composed, and she expressed herself in a relatively focused manner and without apparent difficulty. Her neurological problems provide her with a constant reminder of the car accident. Emotionally, claimant feels frustrated and "stressed out" because she cannot do many of the things of which she was capable before the accident, and she feels a sense of insecurity and unhappiness because she does not feel as capable as before the accident. Claimant's husband confirms that claimant is more forgetful and moody, has problems understanding things, and is not as confident as before the accident.

Dr. Waldman from Nassau, who treated claimant at AMC immediately after the accident and on four occasions, testified that claimant suffered two head traumas in the accident. Being struck by the concrete chunk caused a direct impact head injury that caused her skull to impact the frontal lobes of her brain, an area of the brain that is responsible for executive function and that is involved in memory. When her car struck the tree, she sustained a second trauma which was described as an acceleration/deceleration injury, or "coup/contrecoup injury which could cause the brain to move back and forth within the skull, possibly smacking against the bone. Dr. Waldman stated that the impact of the concrete chunk against claimant's head, along with the shaking of her brain within her skull after her vehicle hit the tree likely resulted in a "diffuse axonal injury" , which occurs when axons the cable-like connections between nerve cells in the brain are torn or sheared as the result of trauma. The damage to the axons renders certain parts of the brain unable to communicate with other parts of the brain, and memory and cognitive problems can occur. Damage to these axons is permanent, as brain cells cannot regenerate when injured. A diffuse axonal injury is at a microscopic level that cannot be objectively diagnosed by radiological studies. Based upon the nature of claimant's accident, the injuries to her head, and her continued complaints of memory and cognitive problems in the years following the accident, Dr. Waldman has concluded that claimant's post-accident memory and cognitive difficulties are caused by a diffuse axonal injury that is structural and permanent in nature.

Dr. Kevin D. Barron, a neurologist who is defendant's independent medical examiner, examined claimant. As part of his examination, Dr. Barron from Suffolk took claimant's medical history and performed a general physical examination and neurological examination, both of which failed to indicate any brain abnormalities. Dr. Barron administered a Mini Mental State Examination, on which claimant scored a perfect score of 30 out of 30 a score below 27 would be considered abnormal. In Dr. Barron's opinion, claimant did not suffer any permanent impairment to her memory or general brain function as a result of the accident. Rather, Dr. Barron believes that claimant had a diffuse axonal dysfunction from which she has recovered. Dr. Barron further testified that it is typical for persons in their 50s to have some memory impairment due to age, and further testified that the side effects of a blood pressure medication that claimant has been taking since 1995 include faintness, memory impairment and short-term memory loss.

Claimant seeks damages for past and future pain and suffering due to defendant's negligence.
The issue in this case is whether Defendant State is liable for the brain injuries suffered by the claimant.

The Court held that with regard to the neurological injuries suffered by the claimant, there is no objective radiological evidence, such as a CT scan or MRI, that conclusively demonstrates that claimant has suffered a permanent brain injury, and the Court recognizes that Dr. Waldman's diagnosis rests in great measure upon claimant's subjective complaints of memory and cognitive problems. However, the Court evaluated the demeanor of claimant and found her to be a highly credible witness with respect to her memory and cognitive impairments, and the Court does not believe that claimant is malingering or exaggerating her symptoms. Claimant's testimony was substantiated by that of her husband, and, to some degree, by Dr. Lifrak's neuropsychological evaluation report. The Court credits claimant's testimony that she suffered and continues to suffer memory and cognitive difficulties since the date of the accident, and further credits Dr. Waldman's testimony that these problems are the result of a permanent diffuse axonal injury caused by the accident.


The Court declines to accord much, if any, weight to Dr. Barron's opinion that claimant suffered no permanent memory and brain function impairment. Beyond the fact that Dr. Barron's current professional activities consist mainly of serving as an expert witness, he examined claimant only once, whereas Dr. Waldman's diagnosis derives from his observation and evaluation of claimant on multiple occasions over a period of approximately 18 months. Similarly, Dr. Lifrak's report was rendered upon numerous and varied assessments performed on several occasions over a period of time. Moreover, in conjunction with its assessment of Dr. Barron's demeanor, the Court finds his brusque and unexplained dismissal of the work of all neuropsychologists undermines the weight of his testimony in this case. Finally, the court is unpersuaded by defendant's argument that claimant's memory problems may be caused by age-associated memory impairment, as there is no evidentiary support for that argument other than Dr. Barron's generalized testimony about the experiences of people in claimant's age group. Similarly, defendant's contention that claimant's memory may be affected by the daily blood pressure medication she takes is without evidentiary support, and is, in any event, undermined by the evidence that claimant took the medicine for approximately eight years preceding her accident, but did not experience memory difficulties until immediately after sustaining head injuries in the accident.

Thus, the Court finds that as a direct and proximate result of the accident, claimant suffered a brain injury that has caused permanent memory and cognitive deficits. However, based upon the Court's observations of claimant at trial and claimant's neuropsychological evaluation, the Court finds that the effect of this head injury upon claimant is mild. This is, of course, not to trivialize the seriousness of the injury as perceived and experienced by claimant in her daily life, but is based upon the absence of evidence of objective or apparent substantial functional impairments. The Court further finds that the functional difficulties claimant suffers are compounded by the emotional effect upon her of these mild impairments. In sum, based upon the weight of the credible evidence, the Court finds that claimant suffered injuries as a result of the accident that have caused mild memory and cognitive impairments that are permanent, and which have had, and will continue to have, a moderate impact on claimant's quality of life.
As regards the olfactory injury suffered by the claimant, the Court finds claimant to be a credible witness with respect to her complaints about the loss and distortion of her sense of smell. The Court also finds persuasive the testimony of both Dr. Kaufman and Dr. Parnes, and finds that the accident caused a permanent injury to claimant's olfactory nerve, and that the injury is the cause of the loss and alteration of her sense of smell. Further, the Court finds that the effect of this injury is pervasive, and has had and will continue to have a profound impact on claimant's quality of life.

With regard to claimant’s forehead injury, the Court finds that claimant has suffered permanent injury to her forehead and left brow as a direct result of the accident. The injuries affect her appearance as well as the functionality of her left eye.

In view of the foregoing, it is clear to the Court that claimant has suffered and will continue to endure substantial pain and suffering as a direct and proximate result of the accident. Accordingly, the Court awards damages to claimant Linda Sanchez as follows: Past Pain and Suffering $100,000, Future Pain and Suffering $375,000.

Continue reading "At the time of the accident, claimant was 53 years old" »

August 11, 2012

This is a case involving a car accident and personal injury claims

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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August 8, 2012

The said car was a red Chevrolet

According to reports that reached a lawyer this is a case about two intoxicated males from Manhattan who are driving a vehicle despite of being under the influence of alcohol. The said car was a red Chevrolet which was allegedly parked while the driver went out to get something from a store while the other male companion stayed inside the car. The incident happened at about 7 o’clock in the evening of October 2, 1971.

The two people involved in the said car accident were Wenceslao, who was the driver and Marzulli, the passenger who allegedly made the vehicle move while parked in front of a store. According to the story, Wenceslao parked the red Chevrolet in front of the store to grab something. While parked, Marzulli stayed inside the vehicle and waited for Wenceslao. Based on accounts that reached a source, Marzulli was seen trying to get to the driver’s side of the vehicle. He was seen somewhere in the middle of the passenger side of the car when it began moving backwards. It was also accounted that at that time, there was no engine being started was heard in the vicinity. It was also noted that the street was levelled enough for a car or any vehicle to stay parked at any given time. The car began moving until it hit another car which was parked a few feet away from where the red Chevrolet was originally parked. Wenceslao immediately came out of the store just in time to see the accident happened. He apparently ran to his car and confronted Marzulli on what happened. After the brief exchange of words between the two men, Marzulli went back to the passenger’s seat and Wenceslao got on the Chevy and drove off, leaving the scene of the accident.

Meanwhile, Police Officer Mulvihill was in the area and saw everything that happened. He then followed the red Chevrolet driven by Wenceslao and stopped the men three blocks away from the scene of the accident. The men were taken to the station and were charged with leaving the scene of an accident wilfully. Marzulli testified that we was indeed intoxicated at that time but claimed he did nothing to make the car move while it was parked. He said that he tried to stop the car, stepping on the accelerator instead of the break in the process, after he felt that it started to move by its own. But his claims were contradicted by the police officer as well as by Wenceslao. It was fortunate, according to a Personal Injury attorney that nobody was injured in the said incident.

The charge of driving while intoxicated against Wenceslao was dropped because there was no enough proof that he was indeed intoxicated at the time he was operating the red Chevrolet. On the other hand, Marzulli was charged and found guilty of driving while intoxicated. Both men, however, were found guilty of leaving the scene of an accident which is a serious offense under the Long Island Vehicle and Traffic Law.

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July 30, 2012

English Car Crash Victim Awarded 3.6 Million Pounds

A car accident victim from Birmingham in the United Kingdom, has been awarded 3.6 million pounds in damages, about $5.8 million in United States dollars, according to report.

The 39-year-old victim struck his head against the steering wheel of his car when another vehicle rear-ended him back in 2008, causing brain damage.

The victim’s attorney has said that such a large settlement was necessary, so the victim could live as normal a life has possible.

The wife of the victim reported to authorities: “While no amount of money will repair the damage done, we now have a chance to move on.”

The victim was a resident of Trefor, North Wales, at the time of the accident. His attorneys say their client will have many years of painful rehabilitation before him – perhaps even the rest of his life.

The 32-year-old wife of the victim said, “I don’t think anyone can imagine how devastating a brain injury can be, it’s turned out lives upside down as its robbed [my husband] of his independence.”

The other driver went before a court and was convicted of driving without due care and attention. His penalty was a fine.

A judge at Liverpool Crown Court allowed this compensation to be granted to the victim and his family. An accident like this one can occur anywhere even in Brooklyn and The Bronx.

Cars are a worldwide phenomenon, commonplace in most countries on the planet. That means car accidents are going to be common as well. It’s simply a fact that there will be accidents where cars are involved. This is why Lawyers are so important.

The timeframe around an accident can be very confused and details can be lost. Sometimes details that seem unimportant can be of great importance – at least for the purposes of a law. Someone with a superb legal mind and knowledge of how the judicial process works is necessary in times such as those to make sure all the relevant facts are brought forward. Otherwise, what was a traumatic physical event can become a traumatic financial event as well, forcing those who suffered from the accident to have to pay expense for a matter that was not even their fault.

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July 23, 2012

In an almost movie-like event Angela I. Jansen was injured

In an almost movie-like event Angela I. Jansen was injured because her vehicle was hit by the car of a fleeing suspect. What happened was, in February 14, at around 10:45 in the evening, Trooper James E. Maring of the New York State Police received a radioed message that a Buick had been stolen. Trooper Maring proceeded to the street where it was reported as stolen and watched out for the automobile. He sighted it with a male driver and proceeded to pursue it. He radioed in order to confirm if it was the stolen vehicle, and it was. A witness said that from the information he got about the car chase the driver headed south while being trailed by the police. At some point, Trooper Richard C. Peck who was in the process of filling up his police car with gas noticed the Buick being followed by a police vehicle. He joined Trooper Maring in the pursuit. A third officer joined the chase before they reached the intersection where Mrs. Jansen’s car was hit. He was identified as Trooper McLaughlin.

The police officers had established a plan to box in the suspect. To do this one of them had to overtake the Buick. They were going more than 50 mph so that one of them can be in front of the pursued car. According to Mrs. Jensen, she stopped at the intersection because she had to turn left on Bailey road that intersects with Route 11 where the police was chasing the Buick. Before she had the chance to turn, a cop said, she already noticed the police lights. She just stayed where she was. The Buick hit their car in turning and the impact caused Mrs. Jensen to hit various parts of the car that had injured her. She had to undergo medical treatment for them.

A Lawyer found out that Mr. Gunter Jansen and Mrs. Jansen filed a case against the State of New York with the alleged negligence of the police officers with the pursuit. In the investigation, it was found that the police cars did not hit Mrs. Jansen’s car directly. The courts in New York City and Westchester though looked at the event as it progressed. The court determined that the police officers had the chance to shoot the tires of the Buick that would have slowed it down at least.

In their decision to box in the fleeing driver, they knew that they could cause damage to vehicles surrounding them. A source also mentioned that the court said that the police officers could have tried the maneuver in a less crowded part of the street or at least aborted the plan when they saw Mrs. Jansen’s car nearby. Granted that they can go over the speed limit while pursuing suspect they could still have proceeded with caution so as not to hurt anyone else. It is their decision that the planned action of the police officers is the one directly responsible for the pursued car to hit the vehicle of Mrs. Jansen. It was the court’s decision that Mrs. Jansen should be compensated for her medical expenses, for the housekeeper they had to hire when she was immobile and for the loss of service and companionship for Mr. Jansen in the total amount of $8,500.

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May 27, 2012

Traffic Stop Police Officer Assaulted

The police were extremely busy over the weekend. One police officer was first assaulted between the hours of 8 to 8:30 PM while he was at a traffic stop. The police also needed to respond to a traffic accident in the area. The crash was so serious that the driver needed to be cut free from the vehicle, explains the report.

The driver was a middle aged man who came from East Greenwich. He lost control of his vehicle and flipped it several times when it came to rest on its roof. After the emergency services arrived on the scene they managed to cut him free from the vehicle using the Jaws of Life. He was then transported by ambulance to Rhode Island Hospital where he is still undergoing treatment for his injuries.

The exact cause of the crash is not currently known as it is still being investigated. However, the police believe that excessive speed is likely to be the main cause of the accident. The driver is thought to be in a stable condition, however his condition has not been released by the police, says the source.

At the other incident, when a driver was pulled over at random, the officer was assaulted. It’s not known why the officer decided to stop the vehicle, but it is expected that either speed or erratic driving were the reasons. The names of the driver which is alleged to of assaulted the officer, and the police officers name has not been released.

The driver was not willing to comply with the police and did not pull over. He did once pull over but the driver was very angry. The police officer was assaulted when he walked over to the car.

The man accused of assaulting the officer was arrested by Warwick police. The assault did not cause any serious injuries and he did not require hospital treatment. The officer was however sent home to rest and he is said to be returning to work soon. Police in Staten Island and Westchester would handle it the same way.

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May 22, 2012

Suspect Fires at Officers and Crashes Car

Fortunately nobody was seriously injured in a firefight between police and a robbery suspect. The police officer opened fire when he was in fear of his life, explains a witness.

Police were informed about the robbery and a police officer responded at around 4 PM. The police officer saw the suspect holding a gun at an employee of the bank. According to the report read by the reporter in Queens, the suspect then turned and pointed the gun at the officer. The gun was fully loaded and ready to be fired. This action caused the officer to fire his weapon.

When police fired the suspect – a 19 year old male – then dropped his weapon and ran out of the building through a back exit. Police are thankful that he did not return fire as this could have put the lives of hostages and the police officer in danger.

The suspect then sped away in a Pontiac which he had already left at the back of the building. As the driver was driving so quickly, he crashed the car very quickly. The suspect then got out of the car and ran away on foot. Police pursued the suspect on foot for a short distance. He was then arrested at the 2400 block on Jefferson Avenue.

The suspect was later charged with several cases including aggravated assault, aggravated robbery, leaving the scene of an accident and felony fleeing. He is due to appear in court next month.

The car crash was not serious and nobody was seriously injured. The suspect of the robbery did sustain a minor injury to his hand. It’s believed by police that this injury was caused during the car crash. It’s fortunate that no other vehicles were involved in the accident as this could have made it much more serious.

The police investigation into the robbery is currently ongoing. It is not thought that there were any insiders in the bank who knew what was happening. The police in Staten Island are currently reviewing all the evidence to decide whether any more charges need to be filed.

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April 19, 2012

Maryann Agudio and an eight-year-old child, Janiece Robinson was driving Union Boulevard in Suffolk County

Maryann Agudio and an eight-year-old child, Janiece Robinson was driving Union Boulevard in Suffolk County when a vehicle driven by Warner Cooley hit them. The car was under Marcia Cooley’s name. Cases were filed against Mr. Cooley and Ms. Cooley. It was responded by a counter claim saying that it was Ms. Agudio, who was at fault in the accident. Ms. Agudio petitioned the court seeking a summary judgment saying that she was liable and that the eight-year-old Janiece Robinson did not sustain a serious injury in the context of insurance law.

Ms. Agudio had submitted to the court the transcripts of the claims, the counter claims and the answers. She also submitted a copy of the reports for the independent orthopedic examination performed on Janiece Robinson. The examination was done by Robert Israel M.D. on September 25, 2009. With her counsel, Janiece Robinson did not agree with the petition filed by Ms. Agudio. They asked for the dismissal of the case saying that Janiece did not sustain serious injuries as required by insurance law.

For a summary judgment to be granted the claimant must be able to show that all issues have been met and eliminated. There should be no issues that are presented that are deemed as needed to be decided on in a trail. With regard to the liability of Ms. Agudio, the child’s grandmother, she recounted the incident on April 5, 2004 at about 2:30 or 3:00 in the afternoon. She said that aside from Janiece her grandson, Michael Robinson, was also in the passenger seat. She stopped her vehicle at a red traffic light at the intersection of Carleton Avenue with Union Boulevard. This is the time that she noticed Mr. Cooley’s vehicle. A few seconds after, she said that Mr. Cooley’s car had struck the rear of her car. This had caused her vehicle to jolt forward. She claims that the light had not changed, it was still red. After they were hit, she pulled over at Union Boulevard and checked on her grandchildren. He approached the other car, and she was told by Mr. Cooley that he was in a hurry to pick up his son at school.

Janiece testified that she was sleeping when the accident happened. Beside her was her cousin who was one or two years old. She was jolted awake when the car was hit. This was also the time that she realized that there was a car accident.

In Mr. Cooley’s testimony, he said that he was driving on Carleton Avenue in a southbound direction. He was behind Ms. Agudio’s vehicle. He was unsure if the car was moving when he saw it or stopped, but he noticed that the traffic light was red so stopped behind the other car. He said that when the light turned green Ms. Agudio had let other vehicles pass her and the light turned red again and they remained stopped. When the light turned green, the next thing that he remembers was that she was going out of the car, and he did too. He said he asked if she was okay. He does not remember if Ms. Agudio told him that there was contact with their vehicles, but he insists there wasn’t. He also testified that he did not see anyone else inside the vehicle with her. They then went their own way without notifying the police. He also stated he did not notice any damage in the rear of her vehicle or the front of his car. He also believes that when he went to Allstate for repairs, he was given estimates for damages prior to the incident.

For the injuries, both submitted reports of Robert Israel M.D. about his examination of the infant. A serious injury defined by the insurance law, “means 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.” Significant meaning that their normal activities have been impaired. They were not able to do it.

In the testimonies, it appeared that Janiece had suffered back pains and head pains after the accident. Her mother Denise Robinson also said that she was not able to join gym for one month because of the pain in her back. She said all her activities were normal six months after the accident. This was the same for Ms. Agudio, though there was also evidence presented that she may have had the injuries prior to the accident. This was because she had been in another vehicle accident before. As for the infant, the doctor had said that it had its full range of motion, and it was normal. Both issues were not proven as have been covered as there are still questions as to the liability of Mr. Cooley, and it cannot be ascertained that the children did or did not suffer any serious injury just from the preliminary evidence presented. This cannot be ignored. Further examination and evidence need to be presented to determine it. For Mr. Cooley’s liability, there is his claim that the traffic light changed and quickly changed back. It may also be deemed that it was Ms. Agudio, fault that they got into the accident if the traffic light had turned green, and she did not move the car. That means that there is a shared negligence that may need to be decided by a trial. This has to be verified as well as the repair done to his vehicle after the incident happened. There are questions that exist, which need a trial. The petition for summary judgment was denied. Courts in Long Island and Manhattan have taken note.

Continue reading "Maryann Agudio and an eight-year-old child, Janiece Robinson was driving Union Boulevard in Suffolk County" »

April 6, 2012

Irving Cohen was driving his vehicle June 8, 1974

Irving Cohen was driving his vehicle June 8, 1974 when the vehicle, while he was trying to parallel park, and after he placed it on reverse, shot backwards at a high speed and even with him stepping on the brake did not stop. It moved backwards in an arc around 70 feet to the east side of the street, through an open space on that side. It then jumped the curb, and only stopped when it hit a building’s wall. Astor Cover was walking on that side of the street and was crushed against the wall by the speeding car. This accident cost him a leg and the other leg had required a brace. A Lawyer found out that even with a prosthesis and a brace, he could only stand if he had canes to help him.

Mr. Cover initially filed a case against Mr. Cohen only. After the death of Mr. Cohen, he added General Motors, the manufacturer of the vehicle and Kinney Motors the dealer to the complaint. Instead of Mr. Cohen, it was changed to claim from Mrs. Cohen, who was acting as the administratrix of Mr. Cohen’s estate. A source said this was because they got information that the car was delivered to Mr. Cohen brand new by Kinney Motors on December 22, 1972. It had only been driven around 12, 000 miles, since he got it and should have been working properly.

A two-part trial had a jury decide four issues. The first is whether Mr. Cohen was negligent in his driving, and it was the immediate cause of the accident. Second is if General Motors was negligent and if that negligence also directly contributed t the accident. The third is the throttle return spring of the Chevrolet was defective and was it already defective when it was taken from General Motors. The last is if Chevrolet is reasonably dangerous because of the defect in the spring and did that defect caused the accident. The last question included an instruction that says, “If your answer is 'yes' then you must also find as against Kinney Motors as the seller (of the vehicle) on this issue of strict liability." A policeman said that the jury’s response was, in degrees of fault, was that Mr. Cohen is 2% liable, General Motors 94% and Kinney Motors 4%, and damages were calculated in favor of Astor Cover at $6,000,000 and in favor of Pearl Cover, on her request for relief, at $2,000,000. The trial judged moved the matter of negligence against Mr. Cohen to the jury, along with the issue if liability against Kinney Motors. The issue of Mr. Cohen against General Motors with regard to negligence, and liability was also moved to the jury. He also granted Mr. Kinney’s motion for damages. He also granted General Motors motions to lower the amount demanded from $3,000,000 to $1,000,000 but denied the motion for a new trial.

General Motors filed an appeal with the Appellate division in The Bronx and Brooklyn regarding the part of Mr. Cover. The liability of Kinney Motors will be dependent on the results of whether General Motors was negligent and liable. According to a source, the appeal of General Motors questions correctness of the evidence is introduced. They asked about a Federal motor vehicle safety standards given as evidence was after the vehicle was already manufactured. They queried about the throttle spring removed from Mr. Cohen’s vehicle because it was done about fifteen months after the accident. The statement given by Mr. Cohen after the accident was also part of the appeal. Lastly, a technical service bulletin with respect to the carburetor spring of the 1973 Chevrolet sent to its dealers by General Motors under date of January 22, 1974.

The Appellate Division decision was that the entering of the Federal motor vehicle safety standard was an error. The throttle spring and Mr. Cohen’s statement presented to the jury was also an error. On the matter of the bulletin though, they said that it was admissible as it is part of the negligence as a failure to warn. The court granted a new trial for Kinney Motors and General Motors.

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January 13, 2012

Car Crashes into Popular Restaurant then Flees the Scene

A car drove straight through the window of a very popular Deli in South Loop and then drove off without stopping. The incident was not reported until the next day when a delivery driver noticed the damage and reported it to police. There were no injuries.

When officers attended the scene they investigated exactly what had happened explained a prominent expert. They found that the glass was shattered and there was a hole in the wall. Among the debris, there was a lot of automobile parts. The police searched the local area looking for damaged vehicles which could be the culprit, but none were found.

The report says that police believe a 1990's Chrysler Concorde or Cirrus was the vehicle which crashed into the building due to a piece of broken taillight which was found. Using sophisticated databases and computer software police were able to pinpoint the year, the make and model of car. Based on paint transfer at the scene it is also believed that the car is white.

The police investigation is ongoing and nobody has been charged with the car accident. Police are currently alerting all auto-repair shops to be on the lookout for a white Chrysler Concorde or cirrus and to notify them immediately if one requires repairs which would be consistent with slamming into a building. This could allow the police to capture the offender, although the chances are fairly slim.

The owner of the Deli told the police that he is glad the crash was no more serious. The damage happened when nobody was inside the building, and also did not cause structural or long lasting damage. The restaurant is very popular in the area and has become a tourist attraction in its own right. Many politicians visit the deli and the owner is pleased that they can continue to do so. The owner said that although the damage will cost money to repair, it is not excessive and will be covered by the insurance. The owner also reassured loyal customers that the restaurant would remain open as the crash did not affect the kitchens, or food already prepared.

Crashes like this are treated the same way in Westchester and Suffolk Counties.

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January 3, 2012

Driver Left After Traffic Accident

The driver of an old van is wanted for causing a car accident and not waiting to exchange details. Instead he just drove off.

A report handed to a policeman explains that the driver of the van left the side of the road at speed. At the time he was towing a heavy pickup truck. The van tried to pull away so quickly that the tires were spinning viciously on the pavement which generated a lot of smoke. The truck behind was slowly bringing up the rear.

According to the report, passersby reported that it looked like the towing hitch on the rear of the van broke and released the vehicle which was being towed. This meant that the pickup truck was released from the van where it slammed into a back of a car parked by the side of the road.

Eye witnesses report that although the vehicles were moving relatively slowly at the time of the accident. The noise made by the car crash was very loud.

The driver of the van stopped and got out of his vehicle to have a look at the accident when it occurred. The witness explained that the owner of the car hit by the truck came outside to take a look at the damage. Both men were cautious and looked at each other.

They took a look at the pickup truck, the damaged car and the van. Then they examined the state of the tow hitch.

The report explains that there was not a proper tow hitch, but instead there was just a simple hook. This meant that the vehicle was much more likely to crash because it was not secured correctly. The hook had been torn off.

The scene of the accident attracted many people to gather and discuss exactly what happened. The two men seemed to be discussing what to do about the accident and how to deal with the accident. The driver of the van got back into his vehicle seemingly to get his license and registration details. However, he just drove off.

Fortunately the owner of the car damaged in the crash managed to write down the registration number of the van and truck which hit his car.

Witnesses discussed what must of really happened. It's suggested that the driver of the van was not actually supposed to be towing the truck. Perhaps the driver of the pickup truck parked too close to the hook on the back of the van and got caught. Instead of the van driver asking for help he instead tried to pull away quickly to release the van from the truck. Although the truck had its parking brake on it still pulled away with the vehicle.

It is not clear whether the van was stolen, or the driver was uninsured as police are still trying to track him down. In Queens and Staten Island you must have car insurance to operate a vehicle.

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December 23, 2011

New study shows injuries from car crashes cause more chronic pain than other injuries

It was revealed today that a recent study shows people are more likely to develop chronic pain from injuries after a hit and run car accident than after other physically traumatic events.

The study took place in Scotland and involved 2,069 people who were asked three times over a course of four years about musculoskeletal pain and related stress, related a doctor. They were asked if they had experienced any of these six physically traumatic events: traffic crash, surgery, workplace accident, fracture, hospitalization, or child birth.

33% of the 241 people in the study with chronic widespread pain were much more likely than other participants to report at least one physically traumatic event during the study period.
The study explained that the researchers decided to adjust for a number of factors and found that people who had been in traffic crashes had an 84 percent increased risk of developing chronic widespread pain.

It said the study found no link between new onset of chronic pain and hospitalization, surgery or childbirth.

Physicians involved in the study speculated that the results are due to the nature of car accidents. Car accidents really traumatize the body in a different way than every day traumatic injuries. The body gets jolted around in a very uncontrolled manner and often times it’s hard to predict the long term effect his will have on a victim’s body.

"We believe there are persons -- defined by prior physical and psychological health -- who in the event of a traumatic trigger are vulnerable to developing chronic widespread pain," one report said.

Further research in Long Island and New York City should focus on the unique aspects of an auto accident and the individual's reaction to this particular trauma that causes the increased risk of chronic widespread pain onset.

Everyone said more research is in the works now in hopes in improving the quality of life of accident victims and their families. “We hope to uncover valuable information to help people as much as we can,” a source concluded.

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December 14, 2011

Two dead and one injured in shooting and car crash

There is recent news of a deadly shooting and car accident that left two people dead and one severely injured Monday.

The police say they were responding to an accident report and when they arrived, they found four people at the scene.

They found two people who had been shot and killed and one who was severely injured. The fourth person had not been wounded or injured so he was taken in for questioning.
Police speculated that this car accident might have been the result of a violent gang chase. One of the men, who was shot and killed, had been in federal prison back in 2008 and had supposedly been deported to Mexico.

“We aren’t sure exactly what happened here,” said a police investigator, “but we are looking into it based on what witnesses have told us and based on our meeting at the station with the fourth man in the car.”

A reporter said that police are currently investigating a possible drug connection to the accident and the shooting.

There were two cars involved in the incident and they are currently looking for the other vehicle.

When police arrived at the scene, they had to first make sure paramedics and firefighters were on the scene. This could also be determined to be a hit and run case. In the Bronx and Brooklyn they would consider this as a charge.

Crews are looking for an older model white SUV in the surrounding areas. They believe the shooting might have taken place from the white SUV and that the accident happened seconds after the shooting. The SUV was seen by several witnesses nearby.

Police sent out alerts for witnesses to come forward in the case.

“The man who was taken in for questioning from the scene has not cooperated very much so far and isn’t talking,” said a person close to the case. “Police are doing their best to convince him to talk until they receive more information.”

There were no family members of the victims involved who were available for comment but police and hospital officials are trying to contact them now as well.

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August 16, 2011

Tragic Death of and Auto Sales Founder

Pete Peters was a well-known and deeply respected man who left his mark on the community of Amherst County. Our time on this earth is precious, and we never really know when it is coming to a close, this was tragically the case with Pete Peters, who passed away this week.

According to a NY Car Accident Lawyer, Pete was the beloved founder of Pete's Auto Sales, where he was known as one of the county's finest businessmen. Peters, who was only 73, died on February 16th, due to injuries inflicted on the 3rd of February following a car accident that took place while he was commuting from Northern Virginia. The vehicle that Pete Peters was driving was intended for sale. This was not a hit and run. In Manhattan and Nassau County, Hit and runs are taken very seriously and penalties are heavy.

Next year was supposed to mark the 50 year anniversary of Pete's business. A New York Car Accident Lawyer expands that Pete was proud of his business and was considered to be a real people person. People often stopped at Pete's Auto Sales for advice and directions. Pete's sister revealed that after Pete got out of the Army Reserve, his grandfather helped him start the business in 1962. A New York Injury Lawyer shares that Pete was very involved in the community, he supported the local fire-fighters, sponsored a Dixie youth baseball team, and was a very active Gideon.

Pete had a great fondness for family, motorcycles, and vintage cars. He is a kindhearted man, who will truly be missed, both in the business world, and by his family and friends. His memory will live on in the hearts of all the people that he touched with his friendship and love. Pete Peter's truly left his mark on the world, and blessed his community in ways that will never be forgotten.

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July 17, 2011

Salvation Army Church Damaged Following Car Accident

Last weekend, a car collided with a local church in Nassau and crashed through one of the walls. The building which was owned by the Salvation Army, is currently considered unusable pending an engineer’s evaluation, explains a reporter. The building was used for many different purposes in the community including a church, outreach and childcare.

The incident took place around midnight when the building was entirely empty; the church building very rarely holds events which take place at that time of night. The Salvation Army has had operations at the location for over fifty years and has no plans to relocate following the incident.

The driver of the silver sedan and the one passenger were spotted leaving the scene of the incident. The fact that they fled makes it likely that both people could face hit and run charges. The two people could not have been sure that no one was in the building at the time of the crash. Police immediately informed the director of the facility about the accident and requested that they come to the scene.

The vehicle suffered major damage and was probably totaled; over half of the vehicle was inside the building after the crash. The building also suffered major structural damage which went beyond the damage to the wall; the plumbing and electrical systems were shut down because of the damage.

Currently, no charges have been filed and it is unknown was caused the car to run into the building. It is possible that alcohol or drugs were involved, though there was no immediate evidence available.

The church is currently consulting with their insurance company to determine their coverage and start working on repairs. They are also holding several community fundraising measures aimed at getting the facility up and running again to serve the Suffolk community. It was unknown whether or not police had located the driver of the vehicle, nor whether they would pursue the passenger of the vehicle on separate charges. An incident report was not immediately available for the accident.

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