New York Car Accident Lawyer Blog

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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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.

Continue reading "The Court held that the lady driver of the Honda Civic" »

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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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" »

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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