Articles Posted in Long Island

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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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Two construction and repair crewmen from the water district were riding in the car of a co-worker on their way to work when their car was hit in the rear end by a truck driven by an employee of an iron works company.

Both the Bronx crewmen were injured. The other crewman, the one sitting in the back sustained spinal injury from the force of the impact of the collision. His spinal injury consisted of bulging discs in the cervical spine and in the lumbar spine. Because of these injuries, he suffered painful muscle spasms, migraine headaches and numbness in the right arm and shoulder. He was treated in the hospital and was confined to bed for six weeks following the accident. After the confinement, the crewman could not return to his regular job as repair crewman because he could not lift materials. He had difficulty bending down and he could not sit or stand for long periods of time.

Both the crewmen filed a suit in damages against the two drivers of the motor vehicles involved in the car accident. They both claimed compensation for damages under the Insurance Law for the spinal injuries and fractures they sustained as a result of the accident. The driver from the iron works company filed a motion for summary judgment alleging that the injuries sustained by the crewmen were not serious injuries and so they are not compensable injuries. The L.I. crewman was examined by independent physicians but the physicians examined the crewmen two years after the accident.

A serious injury is one which brings about loss of life or loss of a limb, substantial disfigurement; loss of a fetus or loss of the use of an organ or system. If the injury is not permanent, it should prevent the injured person from performing his usual and customary activities for ninety to one hundred eight days after the accident.

Here the crewman did not allege that he permanently lost the use of any body part. He did prove that the injury he sustained in the accident limited his physical activity. He was not able to do the customary activities or perform the regular work he used to perform prior to the accident. He alleged that his neck and back had limited range of motion after the accident.
The finding of loss of range of motion in the cervical spine and lumbar spine cannot be based on the mere complaints of the crewman. There must be objective medical tests and diagnostic methods used to arrive at the findings of loss of range of motion.

The fact of having limited use of the spine and the fact of the loss of range of motion are both issues of fact which must be proven. There must be documentation by medical professionals who will attach the results of medical tests, x-rays, CT Scans or MRI scans on which they will base their opinions.

The independent physicians who examined the crewman one year after the accident based their opinions on the MRI and CT Scans of the crewman taken at or around the time of the accident. They themselves did not subject the crewman to MRIs or CT Scans. The independent physicians did not even mention in their report that they conducted range of motion tests themselves. They based their own report on the same range of motion tests conducted at or around the time of the accident. The reports of the attending physicians of the crewman stated that he had significant loss of range of motion in his cervical and lumbar spine.
Thus, the defendant iron works company failed to submit admissible and credible proof on its motion alleging that the crewman did not sustain serious injury. The case is remanded for trial to determine the issue of liability for the serious injury.
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A father died as a result of a vehicular accident. His surviving spouse and their two children filed a case for wrongful death against the owners of the vehicle that collided with the father’s car. After the litigation, the owners of the vehicle paid a sum of $182, 717.00 in damages.
By the time that the wrongful death suit was terminated, the surviving spouse had also died. The owners of the vehicles then filed this action to ask the court to determine who should receive the judgment award, and what the sharing should be among those who should receive the judgment award. The Long Island owners of the car that collided with the deceased’s car came to court to ask for a final determination as to the sharing of the heirs and surviving relative of the deceased in the proceeds of the wrongful death action.

The estate of the surviving spouse claims that it should receive half of the proceeds from the wrongful death suit as she is entitled to share in her deceased husband’s estate. The two surviving children of the deceased father asked for the disqualification of the surviving spouse’s estate and that the proceeds should instead be shared by them, the two children of the deceased.

The children of the also assert l if the estate of their mother, the surviving spouse of their father should be allowed to share in the proceeds, her share should be substantially reduced as she did not survive until the final determination of the wrongful death case.

A special Manhattan guardian was appointed for one of the children of the deceased, the son, who was a minor at the time of this action. The son sustained a brain injury from the same car accident that claimed his father’s life although the brain injury did not fully manifest until years later.
The court then reduced the share of the estate of the surviving spouse to only ten per cent of the value of the proceeds. The rest of the proceeds was ordered to be equally distributed to the two children.

One of the children of the deceased, the daughter, appealed the order of the court that distributed the proceeds of the wrongful death suit. She claimed that her share was substantially less than her brother’s. She argues that if the court had not reduced their mother’s share, she would have also participated in her mother’s estate as one of the only two surviving heirs of their mother.

The only question before the Court is whether or not the trial court erred when it reduced the share of the surviving spouse of the deceased which resulted in the minor son of the deceased getting a share larger than that of her sister’s by $50,000.00.

The Court held that even if it were not to put into account the fact of the disability of the minor son. The Court held that the lower court did not act arbitrarily but used a generally accepted legal means of formulating the shares in the proceeds. By applying the Kaiser formula, the minor son’s share became larger than that of her older sister’s, the difference is only $50,000.00 and does not represent such an excessive amount.

Considering that the difference in the shares of the two children of the deceased were a result of the use and reliance by the court on a legally acceptable formula for calculating the relative shares of the heirs, the court cannot be said to have acted arbitrarily or with grave abuse of discretion. Thus, the Court resolved to uphold the finding of the court.
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A man drove to the house of a friend whom he was supposed to pick up. When he got to his friend’s house, he left the car engine running with the key in the ignition to ring the doorbell and alert his friend that he had already arrived to pick him up. While he was in the house, a man stole the car that was parked in the driveway. The thief took the car and drove off at such a high speed.

In the meantime another man was stopped at an intersection. He was waiting for the light to turn green so that he can make a left turn. As he was waiting for the traffic signal, the thief was driving from the same direction at such a high speed. The thief lost control of the He car and hit the car that was stopped at the intersection.

The impact of the stolen car hitting the stopped car was so great that the driver of the parked car lost consciousness while still inside his car. When the parked car was struck from behind by the stolen car, the parked car also careened off and hit another car.

The man who lost consciousness because his parked car was struck by the stolen car from behind filed a suit in damages. He claimed damages for the personal injury he sustained consequent to the car accident. He sued the owner of the car and the driver of the car from whom the car was stolen. He also included in the suit the thief who stole the car and drove it, the same thief who struck his car from behind. He also sued the insurer of the stolen car.
After the owner of the car and the driver of the car filed their answers, the driver of the parked car filed a motion for summary judgment. He claims that he was not negligent at the time of the car accident. He was sitting in traffic, waiting for the light to turn green at an intersection when he was struck from behind. He asserts his entitlement to a summary judgment and for an award of damages for the personal injury he sustained.

The owner of the car from Manhattan and the Long Island driver from whom the car was stolen filed a motion for summary judgment asking that the complaint against them be dismissed. They assert that they can only be made liable for the personal injury sustained by the driver of the parked car if they had actual control over the car at the time of the car accident. Since the car was stolen from them, they had no control over the car or over the thief who was driving the stolen car. They cannot be made responsible in damages for the personal injury sustained by the driver of the parked car.

The driver of the parked car opposed the summary judgment filed by the owner of the car and the driver of it. He claims that the owner of the car and the driver were negligent in that they left the car running in a driveway with the key in the ignition rendering it easy for the thief to steal the car.

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

The Court held that the motion for summary judgment filed by the owner of the car and the authorized driver should be granted. They had no control over the car at the time of the car accident as the car had been stolen from them. They cannot be held liable for the damages caused by the thief when he recklessly operated the car. They are likewise not negligent when they left the car running in the engine. The law requires drivers to turn off their engine and lock the ignition only when parked in a public parking area. The car here was parked in the driveway of a house.

The Court also held that the motion for summary judgment filed by the driver of the parked car should be granted. He was not negligent when he was stopped in traffic. He was hit from behind by a person who acted in reckless disregard for the safety of others.
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This involves a case where the court ruled that plaintiff failed to demonstrate a prima facie case that he suffered serious injury within the meaning of Insurance Law Section 5102 (d).

Plaintiff, age 24, alleged that on August 21, 2006, at approximately 11:20 a.m., a motor vehicle owned and operated by him came into contact with a vehicle owned by defendant owner and operated by defendant driver. The car accidentoccurred on Old Country Road, at its intersection with Frost Street, County of Nassau, Long Island. Defendants moved for an order dismissing plaintiffs complaint pursuant to CPLR §3212, on grounds that plaintiff failed to sustain a “serious injury” within the meaning of Insurance Law §5102(d).

Insurance Law §5102(d) provides that a “serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) 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” (numbered by the Court). The Court’s consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body function or system.

Defendant submitted an affirmed report of examination of physician, neurologist, and radiologist for the spine injury allegedly sustained by the plaintiff.

The Court found that the reports of defendants’ examining physicians, are sufficiently detailed in the recitation of the various clinical tests performed and measurements taken during the examination, so as to satisfy the Court that an “objective basis” exists for their opinions. Accordingly, the Court finds that defendants have made a prima facie showing, that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d).

With that said, the burden shifts to plaintiff to come forward with some evidence of a “serious injury” sufficient to raise a triable issue of fact.

After the plaintiff submitted its medical evidence, the court found that plaintiff has failed to provide sufficient evidence that plaintiffs alleged injuries are causally related to the accident of August 21, 2006. Although the physician’s report covering plaintiffs cervical spine MRJ indicates “subligamentous posterior disc herniations from C3 through C7 abutting the anterior aspect of the spinal cord[;] Chiari malformation” and his report covering plaintiffs lumbar spine MRJ indicates “posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally,” the Court notes that the existence of a radiologically confirmed disc injury alone will not suffice to defeat summary judgment. The Court further held that plaintiff failed to present evidence to refute the findings of defendant’s examining physician that plaintiff has degenerative changes in his cervical and lumbar spines. This lack of evidence as to causation renders plaintiff’s physician statement, that plaintiffs alleged injuries were proximately caused by the accident highly speculative.

The court noted that there is also insufficient evidence that plaintiffs alleged injuries are permanent §5102(d)((7)). Plaintiff’s physician assertion that plaintiff sustained a permanent consequential limitation is conclusory as she fails to offer any evidence of permanency. “Mere repetition of the word `permanent’ in the affidavit of a treating physician is insufficient to establish ‘serious injury’ and [summary judgment] should be granted for defendant where plaintiffs evidence is limited to conclusory assertions tailored to meet statutory requirements.

The Court reiterated that plaintiffs complaints of subjective pain do not by themselves satisfy the “serious injury” requirement of the no-fault law. Plaintiff has also failed to submit competent medical evidence that the injuries that he sustained rendered him unable to perform all of his usual and customary daily activities for ninety days of the first one hundred eighty days following the accident.
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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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This involves a case where the court granted defendant’s motion for summary judgment dismissing the plaintiff’s complaint for failure to prove that the latter suffered serious injury threshold requirement of Insurance Law Sec. 5102 (d).

Plaintiff alleged that a car accident occurred on September 15, 2002 at approximately 5:15 p.m. at the intersection of Carman Avenue and Choir Lane in the Town of Hempstead, Long Island. Plaintiff claimed that as a result thereof, she suffered serious injuries. At her oral examination before trial, the Plaintiff testified that she had a preexisting spinal injury to her lower back from another car accident in 1988. After being treated for the injuries from that accident, the Plaintiff continued treating with a chiropractor for occasional discomfort to her back, “as needed,” rather than having a set schedule of appointments. Following the subject accident, it was suggested by multiple doctors that the Plaintiff undergo surgery and/or physical therapy, but she declined and chose to continue seeing the chiropractor instead. The Plaintiff also declined pain medication immediately following the accident, preferring over the counter medication. But plaintiff admitted she had her first doctor visit for medical expert opinion after 18 months from the accident. Following the accident, Plaintiff testified to having trouble bending over, walking long distances, participating in her children’s activities, dancing, hiking and brushing her teeth. Plaintiff claimed that she had some occasional discomfort in her back prior to the subject accident, and that the accident exacerbated that pain into a chronic condition.

The Court held that Plaintiff’s claims that her injuries satisfy the 90/180 category of Insurance Law § 5102 (d) are unsupported and contradicted by her own testimony wherein she states that she only missed a week and a half of work and was confined to her home or bed for one week. Additionally, the Plaintiff does not provide any evidence that she was “medically” impaired from doing any daily activities as a result of this accident for 90 days within the first 180 days following the subject accident.

Having made a prima facie showing that the injured Plaintiff did not sustain a “serious injury” within the meaning of the statute, the burden shifts to the Plaintiff to come forward with evidence to overcome the Defendant’s submissions by demonstrating a triable issue of fact that a “serious injury” was sustained.

The Suffolk County Court held that the ambulance report and emergency room records presented by the plaintiff prove the occurrence of the accident, but do not provide any indication that a serious injury was suffered, and are not relevant for the purpose of determining whether a permanent or significant limitation resulted. Further, even with competent evidence, the unexplained 18 month gap in the Plaintiff’s medical attention following the accident is fatal to her claim of serious injury. More specifically, the Plaintiff appeared to receive no treatment following the accident, aside from seeing a chiropractor who she had been seeing before the subject accident.

According to the court, while a cessation of treatment is not dispositive * * * a plaintiff who terminates therapeutic measures following the accident, while claiming “serious injury,” must offer some reasonable explanation for having done so.

The Plaintiff provided no explanation as to why she failed to pursue any treatment for her injuries in the year and a half following the accident, nor did her doctors. Therefore, the unsworn medical records of her physicians should be deemed as stale and insufficient to present an issue of fact.

The 18 month gap between the car accident and the Plaintiff’s first doctor visits renders the medical expert’s later opinion on causation speculative and places into question the seriousness of the injuries themselves. While the Court of Appeals recently pronounced in Perl, supra, that a quantitative assessment of a plaintiff s injuries does not have to be made during an initial examination, it did not dispense with the requirement that a plaintiff must submit objective medical findings contemporaneous with the subject accident in order to raise an issue of fact with respect to causation. Additionally, the physician’s opinion, in conjunction with the medical evidence as a whole, fails to describe how the Plaintiff’s injuries amount to a “serious injury” as defined by Insurance Law § 5102 (d).
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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.
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On 18 to 19 October 2007, at around midnight, the defendant went to the Island Rock nightclub in Hempstead with his girlfriend, a friend of his girlfriend and another individual. After drinking alcohol at the nightclub, the defendant and the other individual left and went to a nearby parking lot. At that time, the defendant did not appear intoxicated. According to the girlfriend’s friend, the defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant went into the trunk of his car and searched for something. The defendant then began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered the girlfriend’s friend to leave with his girlfriend, which they did, driving the defendant’s girlfriend home. The defendant and the other individual then entered the defendant’s vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot. At approximately 3:30 A.M., the defendant’s vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant’s vehicle traveled in the wrong direction from about exit 19 to exit 13, a distance of approximately five miles. A witness observed the defendant driving directly at him while changing lanes. That witness had to immediately pull his vehicle onto the shoulder to avoid a collision. This long Island witness saw that the defendant continued driving the wrong way, and the witness observed the other vehicles on the parkway split apart in order to get away from the defendant. The witness testified that the defendant was steadily going, not braking, nothing; that he was just going; that he was speeding. Meanwhile, another witness, a Police Sergeant was also driving in the proper direction in the left eastbound lane of the parkway. As the Sergeant passed exit 14, he observed the defendant’s vehicle driving towards him at a very high rate of speed, which caused the Sergeant to violently turn his steering wheel to the right to avoid a collision. The defendant’s car came within inches of the Sergeant’s vehicle. According to the Sergeant, the defendant made absolutely no effort to get out of the way. Near exit 13, the defendant’s vehicle, without ever having slowed down, collided with the victim’s vehicle, killing the victim instantly and incinerating the victim’s vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. Following the defendant’s arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the motor vehicle accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%. After the defendant was removed from his vehicle, the police began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine (cocaine possession) beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant’s vehicle matched the shell casings found in the parking lot near the nightclub.

Consequently, the defendant was arrested and charged. On 16 September 2008, the County Court, Nassau County, found him guilty of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated or DWI, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree.
The defendant filed an omnibus motion to suppress physical evidence which was denied by the court. The defendant then appeals from the said decision of the court.

The Ruling:
Under the law, a person is guilty of depraved indifference murder when, under circumstances evincing a depraved indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

Here, the testimony of the New York City witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant’s mental state was one of depraved indifference to human life.

Moreover, the evidence demonstrated that the defendant helped the other individual leave the nightclub. The girlfriend’s friend testified that when the defendant left the nightclub, the defendant looked okay to him, didn’t look like intoxicated, and that the defendant seemed like he could handle himself. Clearly, the evidence did not establish that the defendant was too intoxicated to form the culpable mental state necessary to prove depraved indifference. Thus, the record supports a view of the evidence that the defendant was coherent and able to form the requisite mens rea prior to leaving the parking lot.

Furthermore, the defendant’s action of driving his vehicle towards oncoming traffic on the parkway for approximately five miles constituted reckless conduct which carried with it a grave risk of death and evinced a depraved state of mind. The negation of this intent, by extreme intoxication, is not supported by the record. For instance, the defendant helped the other individual into the car, he searched for his missing drugs, and the girlfriend’s friend testified that the defendant did not appear intoxicated. Thus, the court cannot conclude that the evidence of the defendant’s guilt of murder in the second degree was legally insufficient to support that conviction.

Evidently, the verdict of guilt as to depraved indifference murder was not against the weight of the evidence. The evidence was legally sufficient to establish the defendant’s guilt of criminal possession of a weapon in the second degree, and that the verdict of guilt as to that crime was not against the weight of evidence. The hearing court properly denied that branch of defendant’s omnibus motion which was to suppress the physical evidence seized from his vehicle. The evidence adduced at the suppression hearing demonstrated that the search of the defendant’s vehicle was authorized as a warrantless search falling within the automobile and emergency exceptions to the warrant requirement. In addition, the defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation. The sentence imposed was also not excessive.

In sum, the court finds that the defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review. The court finds that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt. Hence, the judgment is affirmed.
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Police officers were called to the scene of a car accident at the corner of Connecticut and West Beach Streets. Two cars were involved in the mishap: a Chevrolet with damage to its front bumper and a Volkswagen with damage to its rear bumper.

The Long Island police officers asked for the licence and registration of both drivers. As the police officers were speaking with the drivers, they noticed that the driver of the Chevrolet did not smell of alcohol but his speech was slurred and he did not walk straight. The officers asked the driver of the Chevrolet to walk on a line on the side of the road but the man walked in a zigzag pattern instead.

The police officers arrested the driver of the Chevrolet and brought him to police headquarters for an alcohol breath test. AT the precinct, the breath analyzer test showed that the driver’s blood alcohol level was only 0.03. The friends of the driver who were also passengers in the car came to the police station and informed police that the driver spoke with a slight slurring and his gait was naturally uneven. They assured the police that their friend was not driving under the influence of drugs or alcohol.

In the meantime, the police were going to place the Chevrolet in the impounding area. The arresting officers were inspecting the car and making an inventory of the contents of the car before turning it over to the impound area. They noticed a brown envelope in the rear which they took. As they were taking it out of the car, its contents spilled onto the pavement. There was a gun and there was also a driver’s licence that had the same picture of the driver of the Chevrolet but the licence had a different name.

The police continued with the charge of driving under the influence of alcohol. The accused Manhattan driver of the Chevrolet asked the court to suppress the evidence of the gun and the driver’s licence which were found in the car. The trial court denied the motion which the driver of the Chevrolet appealed.

The Court held that there were two essential questions that had to be answered: the first is if there was probable cause to arrest the driver of the Chevrolet; the second question is whether or not the car was properly impounded.

The Court held that the Chevrolet was obstructing traffic when it was stalled in the middle of the road after it had collided with the Volkswagen which was in front of the Chevrolet. Second, the police officers directly observed the actions of the driver and concluded that the man was probably under the influence of alcohol or drugs because his speech was slurred and he could not walk a straight line. There was then probable cause for the police officers to suspect that the accused had committed a crime.

When the driver of the Chevrolet was arrested, he surrendered his keys to his passenger and friend who did not know how to drive and who did not have a driver’s licence. The police then were duty bound to remove the car from the roadway where it was obstructing traffic. They also had the obligation to make a detailed list of items found in the car. When they conducted the inventory of the contents of the car, that was when the gun and the driver’s licence were discovered.

Was the search and confiscation of the gun and the driver’s licence lawful? No, the Court held that it was a warrantless search. The car was not searched at the same time as the arrest. It was searched almost two hours after the arrest. The search was also conducted when the driver was already in custody of the police. The police raised the issue that the inventory was conducted after lawyer impounding even if the search was warrantless. The question then of whether or not the car was lawfully impounded must be determined by a jury as an issue of material fact.
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