Articles Posted in Westchester County

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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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On 6 July 2006, plaintiff was involved in an automobile accident. Consequently, plaintiff filed a personal injury action against The Bronx defendant to recover damages for the injuries he sustained as a result of the accident. In opposition, defendant moved for a motion for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law.

The issue that was brought before the court for resolution was whether or not plaintiff has sustained a personal injury that is within the definition of serious injury under Insurance Law, and, as such, entitles him to recover damages from defendant.

As provided for under the no-fault law, in order to maintain an action for personal injury, a plaintiff must establish that a serious injury has been sustained. This is pursuant to the ruling of the court in the landmark case of Licari v. Elliot which was decided sometime in 1982. As a rule, 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; as held in the case of Alvarez v. Prospect Hospital, in 1986, and the case of Winegrad v. New York Univ. Medical Center, in 1985. Pursuant to the court’s ruling in the case of Lowe v. Bennett, which was decided by the 1st Department sometime in 1986, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff 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 plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. This was the Westchester court’s ruling in the cases of Licari v. Elliot and Lopez v. Senatore, in 1985. In support of a claim that plaintiff 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 plaintiff’s examining physician. Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant’s motion, to submit proof of serious injury in admissible form. Unsworn reports of plaintiff’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 plaintiff is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a plaintiff’s serious injury. As held in the cases of Gonzalez v. Vasquez in 2003 and Ayzen v. Melendez in 2002, unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a prima facie 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 plaintiff’s subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice; as ruled in the cases of Pichardo v. Blum in 1999 and Feintuch v. Grella in 2003. In any event, the findings, which must be submitted in a competent statement under oath, or affirmation, when permitted, must demonstrate that plaintiff sustained at least one of the categories of serious injury as enumerated in Insurance Law. For example, in the case of Parker v. DeFontaine, it was held that a medical affidavit, which demonstrated that the plaintiff’s threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a serious injury within the meaning of that term as set forth in Article 51 of the Insurance Law. In other words, a physician’s observation as to actual limitations qualifies as objective evidence since it is based on the physician’s own examinations. Besides, in the absence of objective medical evidence in admissible form of serious injury, plaintiff’s self-serving affidavit is insufficient to raise a triable issue of fact.

Here, defendant has established a prima facie case that plaintiff did not suffer a serious injury as defined in Insurance Law, for all categories. The defendant submitted, among other things, the affirmed reports of four independent examining and/or evaluating physicians, particularly, an orthopedist, a neurologist, two radiologists, and plaintiff’s verified bill of particulars.
According to Dr. AA, defendant’s independent examining orthopedist, in his affirmed report, he examined plaintiff on 5 February 2006; the examination revealed a diagnosis of resolved cervical and lumbosacral strains/sprains; and he concluded that plaintiff’s examination was non-focal and plaintiff was neurologically intact.

According to Dr. BB, defendant’s independent examining neurologist, in her affirmed report, she examined plaintiff on 7 February 2008; and the examination revealed a diagnosis of resolved post cervical and lumbar sprains.

According to Dr. CC and Dr. DD, defendant’s independent evaluating radiologists, in their affirmed report, plaintiff’s MRI of the cervical spine which was taken on 10 August 2006 revealed a diagnosis of multilevel disc dessication and degeneration, and posterior and anterior disc displacement as described in association with productive bony changes; they both opined that the findings were consistent with a chronic degenerative spinal disease or a spinal injury which was a pre-existing condition and was a long-standing discogenic disease; and they concluded that the findings most likely reflected natural wear and tear. On plaintiff’s MRI of the lumbar spine which was taken on 16 August 2006, both doctors found that it revealed a diagnosis of degenerated, herniated L5-S1 disc in association with productive bony changes; they both opined that the findings were also consistent with a chronic degenerative spinal disease or a spinal injury which was a pre-existing condition and was a long-standing discogenic disease; and they also concluded that the findings most likely reflected natural wear and tear.

Evidently, the defendant has submitted proof in admissible form in support of his motion for summary judgment, for all categories of serious injury. In addition, the defendant has also established a prima facie case for the category of 90/180 days. According to the plaintiff, in her verified bill of particulars, she was only confined to bed for four (4) days; she was only confined to home for five (5) days; and she was not confined to the hospital. These admissions clearly show that plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, as required by the statute.

Based on the evidence presented, defendant has indeed demonstrated that plaintiff did not sustain a serious injury. Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint.

Here, plaintiff has failed to raise a triable issue of fact. In opposition to the defendant’s motion, plaintiff submitted the following: a physician’s affirmation of plaintiff’s orthopedist, Dr. A; a physician’s affirmation of plaintiff’s radiologist, Dr. B, pertaining to plaintiff’s cervical spine; a physician’s affirmation of plaintiff’s radiologist, Dr. B, pertaining to plaintiff’s lumbosacral spine; MRI reports of Dr. B pertaining to plaintiff’s cervical and lumbosacral spine; an attorney’s affirmation; and plaintiff’s own affidavit.

While the defendant’s independent examining radiologists opined in their affirmed report that their examination of plaintiff revealed a chronic degenerative spinal disease or a spinal injury which was a pre-existing degenerative condition in both the cervical and lumbar spines, plaintiffs’ experts nonetheless failed to indicate their awareness that plaintiff was suffering from such condition and failed to address the effect of these findings on plaintiff’s claimed accident injuries. Henceforth, as held in the celebrated case of Pommels v. Perez which was decided by the court sometime in 2005, plaintiff failed to rebut defendant’s claim sufficiently to raise a trial issue of fact. Moreover, the plaintiff has failed to come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying automobile accident. Under the rules, the record must contain objective or credible evidence to support the plaintiff’s claim that the injury prevented plaintiff from performing substantially all of her customary activities. 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 her usual activities to a great extent, rather than some slight curtailment. In the case at bar, plaintiff has failed to include experts’ reports or affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the subject automobile accident. As such, plaintiff’s submissions were insufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed her from performing her usual activities for the statutory period. Obviously, plaintiff’s claim that her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the accident was insufficient to raise a triable issue of fact, as held in the case of Graham v Shuttle Bay which was decided by the 1st Dept. sometime in 2001; the case of Hernandez v. Cerda which was decided by the 2nd Dept. sometime in 2000; and the case of Ocasio v. Henry which was also decided by the 2nd Dept. sometime in 2000. Moreover, plaintiff’s attorney’s affirmation was not an admissible probative evidence of medical issues. Plaintiff’s attorney has failed to demonstrate personal knowledge of the plaintiff’s injuries. What’s more, plaintiff’s affidavit and deposition statements were self-serving and were not given great weight. They were insufficient to raise triable issues of fact.

Based on the evidence presented, plaintiff clearly failed to raise a triable issue of fact. Plaintiff’s submissions were undoubtedly insufficient.

In sum, plaintiff has not sustained a serious injury within the meaning of the Insurance Law. Thus, the defendant’s motion for summary was granted in its entirety and the plaintiff’s complaint was dismissed as to all categories.
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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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A employee of a nursing home also worked part-time at a realty office as a clerk. She was married and she had young children. She rode as a passenger in the car driven by a friend. The car she was riding in was involved in a car accident. She lost consciousness and was taken to the hospital in an ambulance. When she regained consciousness, she complained of pain in her neck, her spine, her shoulder, her wrist, her hips, her knees and her ankle.

The initial diagnosis was a fracture of her cervical spine. MRI and CT Scans as well as x-rays were taken of her but a fracture was ruled out. She stayed a total of three days in the hospital but she was later discharged. She was ordered to see a neurologist to determine the cause of her pain. She was also advised to see an orthopedist and a chiropractor for the management of the pain she was experiencing. She was also advised to undergo physical therapy.

The Westchester employee testified that she sustained a back injury at work sometime six years prior to the accident and she was also in a motor vehicle accident nine years prior to the accident. She experienced pain in her lower spine and legs but she also testified that the pain she felt then was not in the same area that she feels pain now. She claims that she can no longer lift heavy things the way she used to do before the accident in 2006. She worked in a nursing home and her duties include assisting the elderly patients and residents in the nursing home. After the accident, she can no longer stand or sit for long periods of time and she has difficulty assisting to the patients’ physical needs. She couldn’t engage in sports the way she used to do prior to the accident and she cannot do laundry anymore as laundry involved bending down and lifting heavy clothes, lifting wet clothes and putting them in the dryer. All the movements involved the use of her back which now gave her constant pain.

The Staten Island defendants filed a motion for summary judgment alleging that the woman’s injuries, although they may have included her spine, have already been resolved and so, they are not compensable as serious injuries under the Insurance Law. The defendants asked for the dismissal of the employee’s cause of action.

The Court held that the attending physicians of the employee were a neurologist, a radiologist and an orthopedist. They were all unanimous in finding that the condition of the woman’s spine was within normal range. However, they all agreed that there were bulging discs, dessicated discs and compressed discs that may be age related or may be caused by a degenerative disease. They all reported that leg raising and flexing of the lower back in various postures caused muscle spasms. They all opined that the pain constantly experienced by the employee may have been initially caused by age-related degenerative damage to the spine which was aggravated or exacerbated by the spinal injury she sustained in the car accident.

The Court resolved to deny the motion for summary judgment filed by the defendants. The Court found that the reports of the three physicians raise an issue of material fact which must be tried by a jury. The issues of material fact was whether or not the employee suffered indeed from age-related or degenerative spinal condition; and whether or not the accident caused an exacerbation or aggravation of a pre-existing spinal condition; and whether or not this constitutes a serious spinal injury which is compensable under the Insurance Law.
The case was remanded for trial on these issues.
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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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On March 12 of 2010, a school security guard was struck by the car of one of the parents while attempting to assist her with a traffic issue. He approached her car as she sat in the traffic line to drop off her child. After she pulled in, a school bus pulled in behind her. Her vehicle was blocked. The Westchester security guard approached her vehicle from the front. As he passed in front of her car, she inexplicably drove forward striking the security guard. He incurred a personal injury that resulted in a lawsuit against the woman and her insurance company, but also the owner of the car and their insurance company.

The car was owned by a vehicle leasing company. They had an internal policy against leasing cars to people with revoked or suspended driver’s licenses. Upon investigation, the security guard had discovered that the car had been leased by the woman’s boyfriend who had a restricted driver’s license. The security guard maintains that the company employee violated policy when he leased the car to the man. The man’s driving record clearly indicating that he was not a safe driver as per the standards set by the leasing company itself. The security guard believes that if the leasing company had not leased the car to the man in violation of their own internal policy, he could not have loaned it to his girlfriend, and she would not have hit him with it causing his injury.

The security guard maintains that he was injured so severely as to have to miss several days of work and suffering from injuries so severe that they have altered his lifestyle. He stated that he had a spine injury, head injury, hip and knee injuries that required surgery. He stated that he is no longer able to play ball with his grandchildren or to maintain a normal lifestyle.

The Bronx vehicle leasing company filed a motion for summary judgment based on the fact that they had no way of knowing that their leasing agent had taken it upon himself to violate policy and lease the car to the man with the restricted driver’s license. They maintain that they do not support the decision of their employee and that the employee was disciplined for his violation of policy. They maintain that they are not responsible for the accident and that the injured man will have to take his case up with the insurance company that the woman had personally. The company asked the court to direct that they be removed from the lawsuit and found to not hold any liability toward the security guard or his injuries.

The woman and her insurance company also requested that the court dismiss the case. Their contention being that the injured man had not made a sufficient case to demonstrate that he had suffered a severe injury as defined in the Insurance Law of New York State. In order for the injured man to have a case under this statute, he must be able to prove through certified and sworn medical testimony that he has lost the use of a body part, incurred a severe spinal injury or brain injury, or have been unable to perform his normal activities for 90 of the following 180 days after the accident.

The security guard produced numerous doctor reports, tests, and testimony to demonstrate that he had sustained a partial use of his leg from the knee injury. His medical witnesses also produced tests that demonstrated that he had been unable to perform normal activities for 90 of the 180 days for that claim. The court determined that the motion to relieve the rental car company of liability should be granted, but the motion to dismiss the claim against the woman and her insurance company will proceed to trial.
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A case against the State of New York was filed by the administrators of Tonya M. Hilliker’s estate. The claim was that two New York State troopers acted with “reckless disregard” in pursuing another vehicle. They allege that Ms. Hilliker of The Bronx died because of that recklessness. The car that they were chasing hit other vehicles. This happened on April 19, 2003 at approximately 2:30 A.M. in the City of Glens Falls.

In the evidence presented, it showed that Trooper Matthew Gilbert of Westchester was being closely followed by a white car. In the vehicle with him was Trooper Kevin Bouyea, who was sitting in the front passenger seat. The white car turned left from Main Street to South Western Avenue. The troopers continued to travel the main street and turned left onto Luzerne Road to see why the other vehicle was following them. A Lawyer mentioned that it was the time that the troopers noticed the white car heading straight toward them. It was going the opposite way on a one-way street. Trooper Gilbert avoided getting hit by pulling the patrol car on the side of the road. The white car passed them. In pursuit of the other vehicle, Trooper Gilbert made a U-turn and activated their emergency lights. The white car did not immediately turn on Broad Street. What the troopers did was to activate their siren. There was no evidence of traffic on Broad Street at the time of pursuit.

While on Broad Street, the speed of the white car was at 80-85 miles per hour, and the troopers were at 70 miles per hour when they were trying to get the plate numbers. They said that they slowed to about 50 miles per hour after getting the license plate as they were concerned about the safety if they continued that kind of chase. They lost sight of the vehicle for a few seconds after it turned at South Street. When they saw it again it was going into a bouncing stop. They exited their vehicle with guns drawn, said a Lawyer. At the scene Timothy Culligan said he was talking to Ms. Hilliker and Walter LaBarge. He was inside his car while the two were standing outside. This was when his car was struck by the white car. In the reconstruct, it was determined that the white vehicle was driving at least 82 miles per hour. For all the witnesses, they said that after the crash the police officers were immediately there about 10 feet away from the white car. This is contrary to the evidence of the lack of contact from the trooper’s vehicle, and that lack of skid marks made by the trooper’s car. Although, when the statement of Trooper Gilbert and Trooper Bouyea were compared there was a difference. A reporter got information that, Trooper Bouyea said he saw the white car hit other vehicles, which meant that they would have been near enough. There is also the undeniable knowledge of both troopers knew at that time, there are a lot of people in that area.

The court chose to go with the hard evidence. The eye witness testimonies as they said are not very accurate. It contradicted the evidence like the skid marks not being on the street. A Lawyer said that the court stated even if the statement of the troopers did not match, they still exercised caution as they slowed down after they had gotten the license plate. court them decides that this is subject to the immunity.
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A Westchester taxi company filed a request to grant them a decision without trial in dismissing the complaint against them on the ground that the complainant man failed to support a serious injury allegation. However, the complainant man filed a cross motion and for sanctions based upon the court’s prior ruling awarding him a decision without trial regarding the liability.

The action stemmed from the complaint of personal injury action filed by the man against the driver of the taxi, the taxi company and the owner of the taxi. The man alleged that he was stopped at the traffic light when the taxi hit into his vehicle. The driver of the taxi escaped and throughout the proceeding the driver’s location cannot be identified that’s why the taxi company was held vicariously liable for the driver’s negligence.

The taxi company argues that the man has failed to meet the legal requirements of a serious injury under the insurance law. Based on records, serious injury is defined 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, significant limitation of use of a body function or system, a medically determined 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 impairment.

The taxi company presents affirmed medical reports from two Queens physicians in support of their argument. First, they submitted the affirmed report of an orthopedic surgeon regarding the man’s assessment. That report references the man’s repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. It is noted that the man specifically stated that he experiences permanent pain on his back and can’t stand for about 15 minutes. The man also states that he can’t sleep for more than 3 or 4 hours because he needs to wake up due to the pain in his lumbar. However, the orthopedic surgeon’s physical exam found that the man exhibited a normal range of motion and moved pain free within the normal range. The surgeon also found that the man can walk normally, rapidly and without limping. The surgeon measured both of the man’s arms, conducted manual muscle testing and again found each arm normal. Likewise, the surgeon also measured the circumference of the man’s legs conducted manual muscle testing and pin prick simulation and found normal, symmetrical measurements, movements, and response.

The second affirmed medical report was a radiology study completed by another physician. The CAT scans have been provided on a CD-ROM and are unauthenticated. According to the physician, the man’s scans taken 25 days after the accident showed spinal degeneration. However, the physician found no evidence of acute or recent damage, considerably a representation of age-related chronic degeneration of the spine.

The man’s first argument is about the taxi company’s improper filling of the cross motion. The man claims that the prior determination granting him decision without trial resolved both the liability and serious injury issues presented therein and contends that the taxi company needed to pursue any remedy through appeal. The man then requests denial of the cross motion and seeks sanctions against his counsel.

The man also provides only one medical affirmation about the accident. A licensed neurologist refer on the unauthenticated images studied by the taxi company’s radiologist and affirms that the man has developed tingling and numbness in his right and left arms radiating into his right and left leg as a result of the accident. The neurologist also found that the man’s sensory thresholds are all within normal limits, except for a decreased sensation on the outer aspects of the bilateral leg and decreased sensation on the outer aspect of the bilateral arm. The neurologist also found that the man suffered a decreased spinal range of motion. She maintains that the man had weakness in the arm and leg muscles. The neurologist therefore reports permanent restrictions in range of motion of the cervical and lumbar spine region and neurological disability that would require a series of three epidural injections to the neck, systematic physical therapy and pharmacological pain management.

Despite of the man’s several requests, he failed to provide the court with affirmations from his treating physician at the time of the accident or with affirmations from those doctors treating him after the accident. Moreover, few of the documents provided in response to the subpoena are from the relevant time period. The only documents referencing the man’s medical treatment are an unaffirmed patient narrative by another physician, the CD-ROM of the man’s scans and an unaffirmed letter from the radiologist who performed the scans.
The unaffirmed narrative mentioned above outlines the treatment received by the man from three physicians who performed his CT scans and psychological examination thirty day after the accident. One of the said physician conducted a physical examination of the man’s lumbar and muscles finding a decrease in movement and motor strength. Specifically, he states in an unsworn letter that he found a 90 percent decrease from normal in right and left lateral flexion, extension, and rotation. Further, the physician found decreased muscle strength of the right deltoid, right wrist flexors and right wrist extensors diagnosing a 2/5 motor strength on the right with marked pain upon both active and passive range of motion. The physician neither noted the man’s specific measurements nor the normal comparative measurements. In addition, the man notes that he was treated by the physician several times and he argues that the facts demonstrate that he has suffered a serious injury under the insurance law.

The man also cites the unaffirmed report of his psychologist. He asserts that the report demonstrates that he is suffering both emotionally and cognitively and that the negligence of the taxi driver is the proximate cause of his psychological injury. In addition, the man refers to an unsworn MRI scan report of his lumbosacral spine performed by a radiologist. The radiologist explained in an unsworn report that the man is suffering from various spine injuries including anterolisthesis, disc space narrowing, dessication and a herniated disc. Additionally, the documents provided in response to the man’s subpoenas also include a small number of other unaffirmed documents referencing the accident. The documents are unaffirmed medical records from emergency rooms visits by the man apparently for treatment he received as a result of his complaints of lower back pain.

The man argues that the unsworn and sworn medical reports he has submitted in opposition to the taxi company’s cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of the excerpts of correspondence from the social security administration, the man further notes that the SSA has determined that he is disabled.

Consequently, the Supreme Court granted the taxi company’s cross motion and the complaint is dismissed. It is further ordered that the man’s request to dismiss the taxi company’s cross motion and for sanctions is denied.
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On August 24, 2002 nonparty driver was driving a van with eight passengers, one of whom was an adult and seven of whom were children. While driving on a divided highway in Pennsylvania, the driver lost control of the van when the right rear tire blew out. During the resulting crash, the van barrel-rolled across the median and became airborne before landing in the lanes of oncoming traffic. All of the children were ejected from the van and sustained varying degrees of injury. The adult passenger, who remained in the vehicle, died. The appellant lawyer was retained to litigate an action on behalf of the estate and the husband of the deceased, and on behalf of these five infant passengers.

Appellant based her action upon conclusion that the tire at issue had been improperly repaired and was not the proper size for the van. Second, she concluded that the van had a faulty liftgate latch, which allowed the liftgate to open during the car accident. Consequently, she named the manufacturer of the van as a defendant.

Appellant lawyer requested an award of an attorney’s fee in a sum consistent with her retainer agreement, representing one third of the net settlement from the manufacturer of the van and 25% of the net settlement from the driver’s insurer. The Supreme Court approved so much of the proposed infant’s compromise order as concerned the amounts recovered by the infant plaintiffs, but awarded appellant lawyer an attorney’s fee in a sum representing approximately 25% of the aggregate net settlement. The lawyer appealed.

In affirming the infant’s compromise order, the court said that Judiciary Law § 474 expressly exempts, from the general rule, a contingency fee agreement between an attorney and a guardian of an infant, and provides that such agreements are always “subject to the power of the court, as hereinafter provided, to fix the amount of such compensation.” Pursuant to the statute, the court “shall proceed summarily to determine the value of the services of said attorney, taking such proof from either the attorney or the guardian by affidavit, reference or the examination of witnesses before the said court, judge or surrogate, as may seem to be necessary and proper, and shall thereupon make an order determining the suitable compensation for the attorney for his services therein”. Consequently, in rendering a determination as to “suitable compensation” within the meaning of Judiciary Law § 474, the court must determine the reasonable value of the legal services provided in light of all of the facts and circumstances, with consideration given to any agreement as to compensation, and award an amount consistent with such a determination and with the court’s duty to ensure fair and adequate compensation for the infant. Here, applying this standard, we find that the attorney’s fee awarded by the Supreme Court is “suitable compensation” within the meaning of Judiciary Law § 474.

Consequently, while the amount of the recovery was commensurate with the number of injured parties, the time and effort needed to investigate and prosecute the case was not. Rather, although some factors varied as between the injured parties, such as the nature and extent of their injuries, the core inquiries into causation and liability required no more effort than that necessary to litigate the action on behalf of only one injured party. Moreover, there were more injured parties to be compensated from the same limited pool of funds. Finally, the court note that the requested attorney’s fee of one third of the recovery from the manufacturer van represents the upper limit, in general, of what is deemed reasonable under the rules of the Court (see 22 NYCRR 691.20 [e]; cf. 22 NYCRR 603.7 [e]). Nassau and Westchester have similar laws.

In light of all of these facts and circumstances, and weighing the competing interests, the court find the amount of the attorney’s fee awarded-approximately 25% of the net aggregate settlement-to be suitable compensation.
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This involves a motion where the court denied defendant’s prayer for summary judgment to dismiss the claim of plaintiff.

Plaintiff Bianca Watler and her mother commenced an action to recover damages for personal injuries allegedly sustained in a car accidentthat occurred on Prospect Street in Kings County on October 25, 1996. The accident allegedly happened when a vehicle driven by defendant struck the rear of a vehicle operated by plaintiff, which was stopped due to traffic conditions on Prospect Street. The bill of particulars alleges that plaintiff sustained various injuries as a result of the collision, including a bulging disc at level L5-S1 of the lumbosacral spine; lumbar radiculopathy; right knee sprain/strain; cervical and lumbosacral sprains/strains; and “cervical paraspinal myofascitis with discogenic radiculopathy.” It further alleges that plaintiff, who sought treatment at the emergency department of Brooklyn Hospital Center immediately after the accident, was confined to home for approximately six months due to her injuries.

Defendant moves for summary judgment dismissing the claim of plaintiff on the ground that she is precluded by Insurance Law §5104 from recovering for non-economic loss, as she did not sustained a “serious injury” within the meaning of Insurance Law §5102 (d).

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.”

According to the court, a defendant seeking summary judgment on the ground that a plaintiff’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury”. ]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant’s own witnesses, “those findings must be in admissible form, i.e., affidavits and affirmations, and not unsworn reports” to demonstrate entitlement to judgment as a matter of law. A defendant also may establish entitlement to summary judgment using the plaintiff’s deposition testimony and medical reports and records prepared by the plaintiff’s own physicians . Once a defendant meets this burden, the plaintiff 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 a defendant does not establish a prima facie case that the plaintiff’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiff’s opposition.

Contrary to the assertions by defense counsel in Queens and Westchester, the sworn medical report by the physician is insufficient to demonstrate prima facie that plaintiff did not suffer a serious injury in the subject accident. Although the physician concludes in his report that his examination revealed that plaintiff only has “minimal residual cervical sprain without functional deficit” and no evidence of residual lumbosacral sprain or other orthopedic disability, his report fails to indicate the objective tests performed to support these finding. Further, while the report states that plaintiff exhibited “good” cervical movement and “no loss” in rotation, lateral bending and extension in the lumbar region, it does not indicate the range of motion measurements taken during the examination. Moreover, the physician indicates in his report that plaintiff exhibited “20 degrees decreased flexion” in her cervical spine and did not offer any cause for such limitation other than the accident or show that such a limitation is insignificant.

The motion for summary judgment, therefore, is denied, as defendant failed to establish prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.
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