Articles Posted in Hit and Run

Published on:

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.

Continue reading

Published on:

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.

Continue reading

Published on:

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

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

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

Continue reading

Published on:

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

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

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

Continue reading

Published on:

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.

Continue reading

Published on:

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

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

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

Continue reading

Published on:

An automobile accident occurred and, as a result, the appellee suffered serious injuries. He was taken to a Medical Center where he was evaluated by several NYC physicians, including a surgeon, an orthopedist, and a radiologist. However, these physicians misinterpreted appellee’s x-rays and radiological studies, and negligently concluded that he did not suffer a recent spinal injury, specifically a spinal column injury. Consequently, the attending surgeon and assistant encouraged appellee to attempt to walk approximately a week after the automobile accident. When he arose from the bed, appellee felt a shock and collapsed. He was then transferred to another Medical Center, a Regional Medical Center (second Medical Center), where he underwent surgery on his spine, but the surgery was not successful in reversing the spinal column damage, the spinal injury. The appellee then retained a lawyer of a certain law firm to investigate and initiate a legal malpractice action against the various physicians. The lawyer considered joining the physicians individually in the malpractice suit but, for various reasons, he decided not to join. He sent an “intent to sue” only to the two Manhattan Medical Centers and its physicians. However, when the complaint was filed, the first Medical Center was not named. Thereafter, during discovery, the lawyer realized that the second Medical Center’s defense was based upon the comparative fault of the first Medical Center and its physicians. At this point, the statute of limitations had already expired, and the lawyer realized the potential of a legal malpractice claim for failing to join them. Thus, the lawyer then contacted his insurance company and referred the appellee to a new counsel.

The appellee and the second Medical Center, and its physicians, entered into a settlement agreement in the amount of $1,000,000, and then brought a legal malpractice action against the lawyer and his firm, which the Insurance Company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the “aggregate” amount applied. Specifically, the parties disputed whether the attorney’s failure to name the first Medical Center and each individual physician constituted independent wrongful acts or a single claim. So, the appellee filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because the lawyer committed multiple wrongful acts, the appellee claimed that he was entitled to the aggregate limits. The Insurance Company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act; that, since there was only one claim, the appellee was entitled to only $250,000 in coverage. The trial court agreed with the appellee and, on motion for summary judgment, entered a judgment in favor of the appellee for the aggregate limits. Based upon its interpretation of the policy, the trial court found that there were several acts of malpractice during the legal representation of appellees. Thus, the trial ruled that the appellees were entitled to the aggregate policy limits. The Insurance Company now appeals the said judgment.

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

Continue reading

Published on:

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

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.

The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

Continue reading

Published on:

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.

Continue reading

Published on:

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

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

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

Continue reading

Contact Information