June 8, 2015

Second Department Rules in Favor of Defendant School in Falling Debris Case

The New York Supreme Court, Appellate Division, Second Department reversed a trial court order that denied the defendant's motion to dismiss in a personal injury case involving falling debris.

The plaintiff was a teenage student at Locust Valley High School at the time of the accident. The plaintiff volunteered with the high school's stage crew. On the day of the incident, the plaintiff was walking down a hallway. Alongside the hallway was a series of shelves. A stick was protruding from a shelf. The plaintiff bumped into the stick. In order to move it out of the way, the plaintiff decided to pick up the stick and put it on the top shelf. The plaintiff was unable to see the top shelf, so he attempted to blindly place the stick on the shelf. While doing so, he felt the stick hit something and push something off of the shelf. In that instant, two wood boards fell off of the shelf and landed on him, injuring him.

The plaintiff filed a personal injury lawsuit against the high school, alleging premises liability. The plaintiff claimed that not only were the loose wooden boards a dangerous condition but also that the school failed to properly supervise the plaintiff.

Under premises liability, the plaintiff must prove the cause of his injury, that the injury resulted from a defective or dangerous condition on the property, and that the property owner either created the dangerous condition or was aware of it. If it is questionable whether the condition is dangerous or defective, then the jury must decide. However, if the plaintiff does not submit any evidence to prove the condition was dangerous and defective, then the defendant will win the summary judgment motion.

The defendant filed a motion for summary judgment. As part of its evidence, it presented the plaintiff's testimony from a General Municipal Law 50-h hearing in Nassau County. At the hearing, the plaintiff said that he inadvertently pushed the two planks of wood off of the shelf. The wood would not have otherwise fallen. The Appellate Court determined that the trial court should have granted the defendant's motion or summary judgment. In the Court's view, it was clear from the evidence and testimony that while the two planks did cause the injury, the two planks without being touched were not a dangerous condition.

The plaintiff also claimed that the hallway in general was a dangerous condition due to its state of disarray. However, the Second Department disagreed. In addition, the plaintiff argued that the lighting in the hallway was inadequate. However, the plaintiff had previously testified that the lighting was moderate and didn't cause any issues with the plaintiff seeing where he was walking.

Finally, the plaintiff claimed that the school was negligent in supervising him. In New York, schools have a duty to supervise students in their care and are liable for any foreseeable injuries that occur due to the lack of adequate supervision. While a school cannot be reasonably expected to ensure complete safety of its students and to control all of their actions, it does need to adequately supervise them.

Here, however, the plaintiff was an older child and was voluntarily participating in an after-school activity at the school campus. Thus, the defendant was able to prove in its motion for summary judgment that it was not negligent in its supervision of the plaintiff.

The Second Department found that the plaintiff failed to raise a genuine dispute of material fact sufficient enough to rebut the defendant's prima face entitlement to judgment as a matter of law. As such, the trial court should have granted the defendant's motion for summary judgment and dismissed the case.

If you or a loved one has been injured in an accident on someone else's property, you have options. A landowner has a duty to maintain his premise in a safe condition. If injured, you may have a premises liability claim for personal injury damages. Contact the personal injury lawyers at Gallivan & Gallivan today to discuss your options.

Rant v. Locust Val. High Sch., 123 AD3d 686 (2nd Dept. 2014).

June 3, 2015

Property Owners May Still Be Liable For Injuries Caused By "Open & Obvious" Condition

The New York Supreme Court, Appellate Division, Second Department affirmed a trial court order denying a school district defendant's motion for summary judgment after the plaintiff tripped over a pole vault box and sustained injuries.

In 2010, the plaintiff went to Longwood High School to watch her niece's softball game. While walking across a field at the high school with her daughter, she was on a paved part of the field and was chatting with her daughter, not looking down. She tripped over the pole vault box, fell, and sustained injuries. She then brought a personal injury lawsuit against Longwood Central School District.

In her affidavit, the plaintiff stated that she had never been to the school's field area before and was not familiar with it. She said she believed she was walking on a walkway at the time of the fall, but in reality, she was walking on the pole vault runway. She said that because she was talking with her daughter right before the trip, she wasn't looking down to see what the ground was like or if she was approaching any obstacles. The school district moved for summary judgment, arguing that the pole vault box would have been very obvious to the plaintiff had she exercised care and looked down at the ground while walking.

In slip-and-fall cases, the plaintiff must prove that a dangerous or defective condition existed at the time of the fall. This could be a puddle or a hole. The plaintiff then must prove that the defendant either created this defect or had notice of it.

However, if a defect is "open and obvious", then the defendant doesn't need to warn others about it. This is because obvious defects are not inherently dangerous because everyone is aware of them and knows to avoid them. Whether a defect is in fact open and obvious depends on the individual defect and all of the facts surrounding the circumstances of the fall. Usually, for an open and obvious defect to exist, a person, making reasonable use of his or her senses while walking about, would notice the defect.

Here, however, the plaintiff was distracted. New York law holds that open and obvious defects may become traps for the unwary when the defect is either hidden or the plaintiff is somehow distracted.

In order to establish that a defect was "open and obvious" in a motion for summary judgment, the defendant must show that the defect was not inherently dangerous and was easily observable by those utilizing reasonable use of their senses. This can be rebutted by the plaintiff if the plaintiff shows that the plaintiff was distracted or the defect was obscured at the time of the fall.

Here, summary judgment was not proper as the plaintiff raised a genuine material dispute as to whether the defect was a trap. The defendant argued that the pole vault box was open and obvious - anyone walking on the runway would have seen it and known to step around it. In her opposition, the plaintiff argued that she believed she was walking on a walkway, not runway, she had no prior experience with this field, and she was distracted while speaking with her daughter. In support of her opposition, she submitted: photos of the pole vault box, her own affidavit, and an expert witness's affidavit that stated that the box was a dangerous pedestrian risk. The expert opined that the school district was required to either cover the box when it wasn't being used or at least place warning signs around it so that people would be warned of its presence and danger.

Even though the school district proved the pole vault box was open and obvious, the plaintiff showed there was a triable issue of fact regarding whether it was a trap. While the plaintiff's injury may be reduced by any comparative negligence, she successfully rebutted their motion for summary judgment. The trial court denied the motion, and the Second Department affirmed.

If you or a loved one has been the victim of a slip-and-fall accident, don't hesitate to contact the experience personal injury attorneys at Gallivan & Gallivan today to discuss your potential claims.

Oldham-Powers v. Longwood Cent. Sch. Dist., 123 AD3d 681 (2nd Dept. 2014).


June 2, 2015

Police Officer Who Ran Over Pedestrian May Be Liable for Wrongful Death

Late at night on March 30, 2015, a West New York police officer was making his way to work. Driving in his personal vehicle, a blue 2013 Honda Accord, the rookie officer was making his way down JFK Boulevard in North Bergen when he encountered the victim.

The victim was a young man who was crossing JFK Boulevard by the 70th Street intersection. It was dark at night, the victim was wearing dark clothing, and the victim was not walking on or near a crosswalk. The victim was struck by the officer's car and went flying, landing on the sidewalk face down.

The officer immediately stopped his car and got out to assist. The victim was passed out with head trauma. A Guttenberg Police Department officer was driving by and also helped to assist. North Bergen Police and the Hudson County Sheriff's Office were called to the scene following a 911 call. By the time North Bergen EMS arrived, the victim had gone into cardiac arrest. Both the driver and victim were taken to Palisades Medical Center for treatment. The victim did not die until the next day while being treated at the hospital.

The car accident is still undergoing an investigation. So far, it has been determined by the Hudson County Sheriff's Office Crash Investigation Unit that the officer's Honda was not speeding at the time of the accident.

Police officers and police departments are usually shielded from liability. However, they can be sued under federal law in a 42 U.S.C. 1983 lawsuit. Congress enacted this statute to allow victims to sue government entities and employees for depriving them of their constitutional rights. One such example may be that of police brutality in which a police officer chases an unarmed suspect and shoots him in the back. This deprives the victim of his Fourth Amendment rights.

To be liable in a Section 1983 claim, a police officer must have been acting in his official duties as a police officer. If he was off duty, then the best course of action is to sue the individual as a tortfeasor, not a police officer.

In a car accident negligence case, coverage depends on the municipality you live in. Most towns have the same or a similar policy. When the crash occurs, the officer is required to report it to his superiors. An incident report is taken. Then an adjuster from the city will come to your home to assess the damages and calculate the cost to fix your car. Then the city will either cut you a check or pay a body shop to fix the damage.

However, the city will only cover car accident damage when the police officer is acting in his official duties as a police officer. For instance, if the police officer is on a high-speed chase of a suspect and scrapes your car when it's parallel-parked on the side of the road, the city will cover the damages. The city has an insurance policy for the police department that covers accidents such as this.

If the officer is off-duty, though, the city will likely not cover the damages. Off-duty officers are required to drive their personal vehicles in their spare time. This includes paying for their own insurance in their names. Therefore the best course of action is to go after the individual or his insurance company directly.

Some towns may offer an exception to this rule if the officer is not technically on the clock but is still acting in his official capacity as an officer. For instance, he witnesses a crime while on his way home and begins chasing the suspect in his personal car.

Why would you want to sue a police department instead of the actual person for damages incurred during a car accident? With the police department, you know the department or city will have adequate insurance to cover your damages. However, around 50% of personal drivers are either uninsured or underinsured.

If you or a loved one has been injured in a car accident, talk with an experienced personal injury attorney at Gallivan & Gallivan today to review your legal options.

Website Resource:

John Heinis, West New York Cop Fatally Injures Pedestrian in Car Accident, Hudson County View, http://hudsoncountyview.com, March 31, 2015.

June 1, 2015

Injury Law Report: Fall Case Dismissed By Second Department

The New York Supreme Court, Appellate Division, Second Department reversed a Trial Court's order denying the defendant's motion for summary judgment in a slip-and-fall bathroom case.

The plaintiff was a frequent visitor at the Yonkers Racing Association. She had used the bathroom at the facility many times in the past. On the day of the accident, she walked into the bathroom. While she was walking through the bathroom, she fell and injured herself. She notified a security officer on the property about her fall. The plaintiff told the security officer what had happened, and he typed up a report. The report said that when walking into the bathroom, the plaintiff looked into the mirror that was on the right wall by the entrance. The plaintiff said she was not paying attention and walked into a wall, which caused her fall.

The plaintiff filed a personal injury lawsuit against Yonkers Racing Corporation, which owns the racetrack in New York. In her complaint, she alleged that Yonkers Racing Corporation's negligence caused her slip-and-fall injuries. Yonkers responded, and the parties then began the discovery process.

During discovery, the parties gathered evidence and deposed witnesses. One piece of evidence that was gathered was the security officer's incident report. During plaintiff's deposition, she testified that she was extremely familiar with the facilities because she went there all of the time. In fact, she had been in that same bathroom countless number of times. She testified that upon entering, she didn't feel any slipperiness on the floor. She was looking forward as she walked in and slipped on something. She said there may have been a slippery substance underneath her because she felt damp after falling.

However, at another point in the deposition, she said that she never saw or felt a puddle underneath her and that she was unable to say whether the floor was wet at the time of the accident. In addition, when she was questioned about the lighting in the bathroom, she said she never noticed the lighting in the bathroom, including whether it was darker in there than usual.

In a slip-and-fall case, the plaintiff must identify the cause of the fall, prove that it is dangerous or defective, and prove that the property owner either caused the defect or had notice of it. If the plaintiff can't testify as to the cause of the fall, then it doesn't matter if a dangerous condition existed or if the race track was aware of it. The legal system does not allow plaintiffs to prevail on claims based on pure speculation. Testimony and evidence that prove by a preponderance of the evidence that a specific type of defect caused the fall are necessary to prevail.

Here, the plaintiff was unable to identify what caused her fall. At one point, she said she wasn't paying attention and walked into a wall. At another point, she insists she slipped and fell but that there was no puddle on the floor. At another point, she said she never saw a puddle but did land in something wet. In her complaint, the plaintiff alleged that water or a cleaning substance had caused her fall. However, she failed to properly identify what caused the fall based on her inconsistencies.

When a plaintiff is unable to identify the cause of her fall, then any argument that a defendant proximately caused the fall is peculation. The defendant is therefore entitled to summary judgment as a matter of law. The only way to survive such a motion is for the plaintiff to show some triable issue of fact in her opposition papers, which this plaintiff failed to do. As such, the Second Department held that the defendant's motion for summary judgment should have been granted and dismissed the case.

If you or a loved one has been involved in a slip-and-fall accident, contacted the expert slip-and-fall personal injury lawyers at Gallivan & Gallivan to start reviewing your claims today.

Trapani v. Yonkers Racing Corp., 124 AD3d 628 (2nd Dept. 2015).


May 31, 2015

Plaintiff Slip and Fall Case Dismissed for Testifying She Fell at Wrong Location

The New York Supreme Court, Appellate Division, Second Department dismissed a personal injury case against a building owner and Chinese restaurant when the plaintiff mistakenly sued the wrong entity.

While walking down the sidewalk on Fifth Avenue in Brooklyn, the plaintiff tripped over a cellar door and fell, sustaining injuries. She brought a personal injury suit against 197 Fifth Avenue, the building owner, and Sun Luck Restaurant, a Chinese restaurant that used a cellar at the building.

A civil case, including a slip and fall lawsuit, begins when the plaintiff files a complaint. The complaint must contain the plaintiff's specific claims, as well as some facts to support those claims. The defendant's answer contains counterclaims or defenses, as well as facts to support the counterclaims and defenses.

The parties then conduct discovery. During discovery, the parties conduct investigations, depositions of witnesses such as the plaintiff or expert witnesses, consult with witnesses and have the witnesses draft affidavits, comb through relevant documents, and draft and file any relevant motions.

One such motion is the motion for summary judgment. This motion can incorporate all of the information gathered during the discovery phase that is deemed admissible evidence. Though it can be made early on in the process, the moving party generally waits until gathering a substantial amount of discovery. This is because it is the burden of the moving party to proffer enough evidence in its motion to show that it is entitled to judgment as a matter of law.

If the defendant files the motion, the defendant is arguing a claim or the entire complaint must be dismissed because the defendant has proven that it is entitled to this outcome as a matter of law.

One such way the defendant may argue that it is entitled to judgment as a matter of law is by showing that the wrong defendant is being sued. Here, the two defendants made this exact argument.

During her deposition, the plaintiff testified that she tripped and fell at 140 Fifth Avenue, not 197 Fifth Avenue. Not only is this property not affiliated with either defendant in any way, but it is three blocks away and across the street. Throughout her deposition, she repeatedly stated 140 Fifth Avenue and even described the exact route, distance, and direction she walked in order to reach 140 Fifth Avenue. The plaintiff also recounted the name of the business at 140 Fifth Avenue, which was not Sun Luck Restaurant. Further, in her deposition, the plaintiff stated she was positive it was 140 Fifth Avenue because she retraced her walking route a few days later to confirm the address. When she was handing a photo of 140 Fifth Avenue, she confirmed this was the location and circled the cellar door for that property.

Despite her repeated and emphatic testimony, the plaintiff later filed an errata sheet. An errata sheet is a list of corrections a witness wishes to make to clarify or revise testimony given during a deposition. New York requires that in order for an errata sheet to be accepted by the court, the moving party must provide an adequate reason for any critical changes or corrections that would materially alter the testimony. This is because the court does not want to encourage parties to constantly revise any unfavorable testimony to support their claims.

In her errata sheet, the plaintiff corrected the address of her fall to 197 Fifth Avenue. She said that the reason for her correction was that an investigator for her lawyer had mistakenly gone to 140 Fifth Avenue and taken photographs, which caused her to believe the accident had occurred at that address when it really happened at 197 Fifth Avenue.

The trial court accepted this argument and refused to strike the errata sheet as requested by the parties. In addition, the trial court refused to grant the defendants' motions for summary judgment. The Second Department reversed and dismissed the case, holding that the plaintiff failed to proffer an adequate reason for her very serious testimony changes. Without those changes, the evidence showed the accident occurred at a different address.

If you or a loved one has been injured in a slip-and-fall accident, you need a skilled and experienced lawyer to advocate for your rights. Contact the accomplished New York personal injury lawyers at Gallivan & Gallivan today.

Horn v. 197 5th Ave. Corp., 123 AD3d 768 (2nd Dept. 2014).

May 25, 2015

New Trial Ordered By Second Department In Slip & Fall: Closing Arguments Found Prejudicial

The New York Supreme Court, Appellate Division, Second Department ordered a new trial in a slip-and-fall accident case after the plaintiff's lawyers made prejudicial comments in the closing argument before the jury.

The plaintiff slipped and fell while shopping at the defendant's supermarket. After falling and sustaining injuries, she was taken to the hospital. While in the emergency room, she was cared for by a triage nurse. According to medical records maintained by the triage nurse, she told the nurse that she had fallen outside of the grocery store, not inside.

The parties proceeded to trial. At trial, during opening statements, the defense spoke of his star witness, the triage nurse and her medical report. He shared with the jury that this nurse saw the plaintiff in the emergency room right after the accident and that the plaintiff told the nurse that the fall didn't occur at the supermarket.

However, during a later discussion with the parties outside the presence of the jury, the trial judge held that the statements in the medical records could not be admitted into evidence under the rules of evidence. Because the triage nurse was only going to testify about those statements, the court also precluded her from taking the stand.

At closing arguments, the plaintiff brought up how the nurse never testified. The plaintiff accused the defendant of lying in opening statements about the nurse. The plaintiff stated that the defendant had told the jury of the nurse's predicted testimony yet never delivered it. The plaintiff argued that if the defendant had lied about the nurse testifying, then the defendant must have lied about everything else. The plaintiff did not reveal that the nurse was precluded from testifying because of the evidentiary rule issue.

Because the court had instructed the defendant not to explain to the jury why the nurse had never testified, the defendant was unable to rebut these claims by the plaintiff during its closing argument.

The jury then found in favor of the plaintiff and awarded her $50,000 for past pain and suffering, $12,000 for past medical expenses, $140,000 for future pain and suffering, and $60,000 for future medical expenses.

The Second Department held that the trial judge had properly kept the medical records out of evidence. The medical records had to be "germane to the injured plaintiff's diagnosis and treatment" in order to be admitted, which they were not. In addition, the statements did not contradict any of the plaintiff's testimony like the defense had alluded to in its opening statement. Rather, the statements in the medical records appeared to support her story as to how the accident happened. Because the records could therefore not be used to impeach the plaintiff's credibility on the witness stand, they were not admissible at trial. Because the triage nurse's testimony was to be centered on these statements, her testimony was properly precluded.

However, an underlying tenant of the adversarial system we have in the U.S. is the idea of fundamental fairness in civil trials. There is open discovery. Plaintiffs and defendants are aware of each witness's testimony thanks to depositions and affidavits. The parties have access to evidence such as medical records. It is simply up to each party to use the witnesses' testimony and the evidence to craft the best story. Prejudicial statements before the jury regarding one party that cannot be rebutted are usually not allowed.

Here, while the trial court was proper in precluding the evidence and testimony, it was not proper in allowing the plaintiff to make the remarks about the nurse during its closing argument. First, these statements were untrue. The nurse hadn't failed to show up to testify, and the defendant didn't fail to call her as a witness. Rather, the witness had shown up and then was precluded by the court from testifying. Second, the statements were extremely inflammatory and prejudicial. They were likely to have unduly influenced the jury's decision and therefore hampered the fair trial process. As such, the Second Department ordered a new trial.

If you or a loved one has been the victim of a slip-and-fall accident, you need someone who can navigate the legal system and advocate on your behalf. Call the expert personal injury attorneys at Gallivan & Gallivan today to discuss your potential case.

Web Resources:

Nelson v. Bogopa Serv. Corp., 123 AD3d 780 (2nd Dept. 2014).


May 24, 2015

Car Accident Attorney Report: Lynyrd Skynyrd Drummer Dies in Late Night Car Accident

Just before midnight on April 3, 2015, Lynyrd Skynyrd drummer and founding member Robert Burns Jr. died in a single-vehicle car crash.

Burns was driving through Cartersville, Georgia on a winding road. As he approached a curve, he lost control of his car, swerved, hit a mailbox, and crashed into a tree. Though he was still alive when the paramedics arrived, he died at the scene. Drugs and/or alcohol did not play a part in the crash. However, Burns was not wearing a seat belt when the accident happened. No other cars were involved.

Lynyrd Skynyrd formed in 1965 with founding members Ronnie Van Zant, Allen Collins, Bob Burns, Larry Junstrom, and Gary Rossington. To date, Junstrom and Rossington are the only surviving founding members.

Car accident is the top cause of death in the U.S. Many of the deaths could be prevented by seat belt use. Despite the inherent dangers, millions of Americans decline to wear seat belts while driving or riding in a car. In fact, the frequency of car accident deaths and injuries could be halved if all occupants wore a seat belt. While many passengers believe an airbag is enough protection in a crash, seat belts have been proven to provide greater protection.

Unsurprisingly, younger adults and teens are much less likely to wear seat belts. In addition, many states have begun passing mandatory seat belt laws. New York requires everyone sitting in the front seat to wear a seat belt, as well as all children under the age of 16, whether they are in the front or back of the car.

Seat belt enforcement laws allow police officers to pull a car over simply for suspecting that a driver or passenger is not wearing their seat belt. The officer can then issue a ticket. States with seat belt enforcement laws have an average of 89% of drivers complying with the law.

If you are injured in an accident caused by someone else, but you were not wearing a seat belt at the time of the accident, your damages may be reduced under what's known as comparative negligence. Comparative negligence is akin to contributory negligence in which damages are reduced in proportion to the degree upon which the plaintiff's own negligence contributed to the cause of the death or injury. Thus, while a failure to wear a seat belt may not have prevented the car accident from happening, the seat belt may have prevented the passenger from suffering from severe injuries.

Many individuals refuse to wear seatbelts because they are uncomfortable. However, most cars allows drivers and front seat passengers to adjust the seat belt height in order to increase the comfort of the seat belt. In addition, companies manufacture special padded seat belt sleeves that you can slip on the seat belt. These padded sleeves are soft and will prevent the seat belt from cutting into your chest or shoulder.

It is imperative that you and your loved ones wear seat belts. Even though New York only requires front seat adults to wear seat belts, everyone in your car should wear a seat belt at all times. This will protect you in the event of an unexpected car accident. During a crash, you don't have time to stop and put on your seat belt. The seat belt will retract and keep you pulled against the seat in order to prevent you from flying out of the windshield. A seat belt may spell the difference between life or death for you and your loved ones.

If you or a loved one has been the victim of a car accident, you have options. Call the experienced and trained personal injury lawyers at Gallivan & Gallivan today to discuss your potential claims.

May 24, 2015

Personal Injury Attorney Report: Landowners Have a Duty to Prevent Foreseeable Crimes from Occurring to Guests on Property

The New York Supreme Court, Appellate Division, Second Department reversed a trial court order that denied summary judgment to two landlords of a restaurant whose employees attacked the plaintiff.

One day, the plaintiff was walking down the sidewalk of New Utrecht Avenue in Brooklyn, New York. There is a restaurant that spans 6010 and 6012 New Utrecht Avenue. AYT Realty owns 6012 New Utrecht, and 6010 Realty owns 6010 New Utrecht. As the plaintiff was outside of the restaurant, for reasons unknown, a group of men beat him. According to the plaintiff, two of the men worked at the restaurant.

The plaintiff filed a claim with the Department of Social Services of the City of New York, and the Department of Social Services covered his medical expenses and then initiated a claim against the 6010 and AYT for reimbursement. The plaintiff also filed a lawsuit against AYT and 6010 to recover damages for personal injuries. AYT and 6010 moved jointly for summary judgment.

Property owners are required under New York Law to prevent harm to guests on their property. This includes maintaining safe premises in order to prevent accidents. This also covers third parties injuring others on their premises. The landlords have a duty to control third parties if (1) they are able to control such persons and (2) they are aware that control is necessary.

This duty to control is hinged on whether the landowner is aware. The landlord must take steps to reduce the risk of criminal acts and to protect guests when the landlord either is or should be aware that the third parties' actions will endanger the guests.

A common legal principle found in civil lawsuits is foreseeability. Defendants will be liable for foreseeable injuries. Thus, if the criminal acts were foreseeable by the landowner, the landowner will be liable for them if he fails to take reasonable actions to control them.

How will a landlord know if a criminal act is foreseeable? Usually the act will be reasonably predictable. This prediction could be based off of past criminal acts that the landlord is aware of at the property. For instance, if a bar owner is familiar with one of its bartenders constantly assaulting customers when they tip poorly, the bar owner could be said to be put on notice of its bartender's behavior. Any future assaults against poor tippers will be foreseeable due to their predictability.

A bar owner, however, will be intimately familiar with its bartender's behavior because the bar owner is presumably very involved in the affairs of the bar. Here, AYT and 6010 were mere landlords. They leased the property to the restaurant. They had no other affiliation with the restaurant. Therefore, they are termed "out-of-possession landlords."

The plaintiff argued that AYT and 6010 were not "out-of-possession" because AYT and 6010 had offices next to the restaurant. However, they did not own or operate the restaurant nor were they familiar with the employees.

An out-of-possession landlord will not be held liable for any injuries that occur due to criminal conduct of third parties such as employees unless the landlord either somehow maintains control of the property or contracts with the renter to provide security. Neither of these two factors applied to AYT and 6010.

Because AYT and 6010 were out-of-possession landlords, they did not owe a duty to the plaintiff to control third parties and prevent criminal conduct by third parties. Thus they established a prima facie case for summary judgment.

In his opposition, the plaintiff argued that AYT and 6010 had notice of prior criminal activity but was unable to raise a genuine dispute of material fact on this issue. The trial court therefore should have granted summary judgment and dismissed the case.

In addition, because summary judgment for the defendants was proper, the Department of Social Security claim against the two defendants was also dismissed.

If you or a loved one has been injured while on another's property, you may have legal recourse. Contact the skilled personal injury attorneys at Gallivan & Gallivan today to discuss your potential premises liability case.

May 12, 2015

New York Car Accident Case Revived By Second Department Under Insurance Law 5102 (d)

The New York Supreme Court, Appellate Division, Second Department reversed a trial court order granting summary judgment for defendants in a car accident case recently. The Court held the plaintiff did suffer from a "serious injury" to the spine as defined by statute following a car accident. See Yeu Jin Baik v. Enriquez, 124 AD3d 880 (2nd Dept. 2015).

New York is a no-fault car insurance state. There are three types of car insurance systems: fault, no-fault, and no-fault add-ons. In a typical fault system, the most common type of car insurance system, state law requires that whoever is at fault for the car accident must cover all of the damages. Usually, the police are called to the scene of the accident and write up an incident report, assessing fault. Insurance information is shared, and the victim contacts the driver-at-fault's car insurance company to request compensation.

However, a fault system can pose a burden on the courts. The driver at fault often denies responsibility or his insurance agency refuses to reimburse all or some of the damages. The plaintiff then sues either or both the driver and the insurance company. It could be years of costly litigation before the plaintiff sees any reimbursement.

In a no-fault system such as New York, car insurance providers are required to provide coverage for property damage, medical expenses and lost wages to their drivers regardless of who was at fault in the accident. That way, a driver can immediately call up his insurance company and request that an adjuster come evaluate his car for repairs even though the other driver may have caused the crash. This allows the driver to receive almost immediate compensation for property damage suffered, and allows for coverage of medical expenses/lost wages related to any injuries caused by the accident.

In a fault add-on system, the state law requires that car insurance companies provide an optional add-on no-fault coverage. Drivers do not have to include it on their policy, but they do receive greater protection in accidents if they do.

It is estimated that some 50% of drivers on the road either do not have car insurance or are severely underinsured. No-fault car insurance protects people on the road from under- and uninsured motorists.

New York's no-fault system is codified in the Insurance Law. If an individual sustains a "serious injury" as defined by Insurance Law Section 5102, the injured person can seek compensation for pain and suffering and other damages. No fault only pays for medical expenses related to the accident and lost wages. In this case, the plaintiff sued the driver-at-fault and his car insurance company for serious injuries she suffered to the cervical and lumbar regions of her spine and her left knee.

In this case, the defendants filed a motion for summary judgment, arguing that the plaintiff's injuries did not constitute serious injuries as required by the Insurance Law because the plaintiff did not suffer a "permanent consequential limitation" or a "significant limitation of use" as defined in the case law.

If a defendant is to make this argument, medical evidence is required. A defense medical expert will review the plaintiff's medical records and examine the plaintiff. The defense medical expert will then opine via an affidavit that while the plaintiff was injured, the injury either did not impair or limit the plaintiff.

The plaintiff has the opportunity to respond. Here, the plaintiff raised a genuine material dispute as to whether the spinal and knee injuries were serious injuries under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law ยง 5102(d) . As such, it was improper for the trial court to grant the defense motion for summary judgment. The Second Department reversed the order.

Due to the intricacies involved in the insurance law it is imperative for car accidents victims to hire competent legal counsel soon after the accident.

If you or a loved one has suffered significant injuries as the result of a car accident and you need help pursuing compensation, contact the skilled personal injury lawyers at Gallivan & Gallivan today to discuss your potential claims.

May 3, 2015

Defendant Landlord Failed to Establish It Was Not Responsible for Fall in Premises Liability Case

The New York Supreme Court, Appellate Division, Second Department reversed a trial court order that granted summary judgment to a defendant property owner in a slip-and-fall case that happened in a New York apartment.

In 2010, the victim, now deceased, was walking through his apartment when he tripped on the wood floor and fell. He sustained head injuries from his fall. It was not until 2013 that this case was brought for personal injuries by the victim's son, the executor of the estate.

In his deposition testimony, the son testified that he was at the victim's house at the time of the fall and saw the actual fall. He said he was walking behind his father on the wood floors. The flooring was warped and bowed and had been that way for some time. In fact, the father had been making ongoing complaints about this since 2001. The victim's foot went down in a spot where the flooring was warped, and he fell at an angle, hitting his head. The defense filed a motion for summary judgment.

In a premises liability case, the plaintiff has the burden to prove three things: (1) the cause of the injury, (2) that the cause of the injury was a dangerous condition or a defect, and (3) that the dangerous condition or defect was either caused by the defendant or the defendant had notice of its existence.

The defense first argued that the plaintiff failed to identify the cause of the injury without using speculation, and the Supreme Court accepted this argument. However, this was in error. The plaintiff's testimony about how the dip in the floor caused his father to trip was sufficient to identify the source of the fall.

The defense then argued it did not have notice of the alleged defect. However, the plaintiff's testimony that both he and his father had complained several times before the accident about the warped floors was sufficient evidence to rebut this argument.

Finally, the defense argued that the defect had not caused the alleged injury. A defendant is the proximate cause of an injury when his negligence has been proved by the plaintiff to have been a substantial factor in causing the injury. Here, the plaintiff would have to prove the landlord's failure to fix the warped and bowed flooring was a substantial factor in causing the victim's fall after tripping on the warped flooring.

There can be multiple proximate causes. The landlord's failure to fix the flooring could be one and the plaintiff texting and not looking where he's walking may be another. If only one proximate cause could possibly exist for the fall, and that proximate cause is the plaintiff's own doing, then summary judgment for the defendant is proper. However, if the plaintiff proffers with sufficient evidence that the defendant is a proximate cause of the fall, then the jury should decide who is at fault and assess any damages.

The landlord here failed to establish that it was not a proximate cause of the injuries. The medical records included in discovery showed the victim suffered a subdural hematoma after the fall. The defendant tried to argue that because (1) the victim had tried to sue the landlord three times, twice for unrelated trip-and-fall accidents and once for debris falling on his head and (2) the victim waited two months to see a doctor about the head trauma, the cause of the head injury came from a different accident.

However, in order to prove he is entitled to summary judgment as a matter of law, a defendant must submit expert medical evidence that the specific head trauma was not caused by the fall. The defendant here failed to include an expert medical witness's testimony. As such, the trial court's order granting the defense summary judgment motion was reversed.

If you or a loved one has suffered a devastating injury after a slip-and-fall, you have options. Contact the experienced personal injury lawyers at Gallivan & Gallivan today to review your potential claims.

Martino v. Patmar Props., Inc., 123 AD3d 890 (2nd Dept. 2014).

May 3, 2015

Shopper Killed in Great Neck, New York after Car Crashes into AT&T Store

On the morning of Monday, March 30, 2015, an elderly driver of a 2006 Toyota Rav4 drove into a shopping center parking lot in Great Neck, New York on Northern Boulevard by Nassau Road. For some reason, the driver was unable to bring her car to a stop in a parking spot in front of an AT&T store in the parking lot. The car crashed through the front windows of the store and drove into the store.

A woman was sitting on a couch near the front windows at the time of the crash. The SUV rolled over her body and stopped. The victim was trapped under the tires of the car. Customers and employees of the AT&T, as well as neighboring stores, came to assist the woman. While part of the group worked together to lift the SUV, another part of the group pulled the woman out from under the car. However, she was later pronounced dead from the injuries.

This tragic accident caused numerous damages. First, the driver may have been injured. Her car insurance may be required to reimburse the driver for medical expenses, lost wages if she is unable to work due to injury, and pain and suffering. The car insurance policy will dictate any deductibles or maximum reimbursements.

In addition, the accident likely caused damage to the driver's vehicle. The car had to be towed out of the store as it was unsafe to drive. The driver will report any damage to the car insurance company. The company will send an adjuster out to assess the damages. The company will then either pay to fix the damages or will issue a check for the value of the car, minus any deductible.

Third, the driver will be liable for any damages to AT&T and the shopping center's property. This includes the shattered front windows and any property damage inside of the store. The car insurance policy will dictate what amount the car insurance company will pay out after a deductible. If the property damages exceed this amount, the store may sue the driver directly for compensation.

Finally, the victim who died in the accident will have a personal injury (survival action) and a wrongful death claim. Again, the car insurance company will pay the family of the victim a set amount, as dictated by the insurance policy. The family can then pursue a civil lawsuit against the driver for damages.

Interestingly enough, the driver of the car was driving a Toyota and says she was unable to stop the car. In 2009, reports began to surface of Toyota vehicles mysteriously accelerating on their own. This led to several fatal car accidents. The victims claimed that the car began accelerating for no reason, and braking was unable to stop or slow the acceleration.

At first, Toyota blamed the issue on floor mats that had shifted and gotten lodged under the gas pedal. However, a crash occurred in 2009 in which all floor mats had been placed in the trunk of the vehicle. This led Toyota to begin issuing recalls. Dealerships were instructed to update the vehicles' computer systems with a special program that would disable the throttle pedal when the brake pedal was pressed. Toyota then issued a recall on the throttle pedal, which stated that the pedal may become stuck in a depressed position.

Exact details about why the Rav4 could not be stopped in this case are not known. However, this may be a case of Toyota unintended acceleration. The driver of the car, as well as the victim of the crash, may be able to pursue a claim against Toyota. A complaint could be lodged with NHTSA, the National Highway and Traffic Safety Administration, which is the federal agency tasked with investigating car accidents and faulty car manufacturing. In addition, a wrongful death lawsuit could be filed against Toyota.

If you or a loved one has been killed or injured in a car accident, consult with an experienced personal injury lawyer at Gallivan & Gallivan today to discuss your case.

Woman Dies After SUV Crashes Into AT&T Store In Great Neck, CBS New York, newyork.cbslocal.com/2015/03/30, March 30, 2015.

April 21, 2015

Accidental Fall Case Dismissed as Plaintiff Was Determined to Be the Cause of the Fall

The New York Supreme Court, Appellate Division, Second Department affirmed the trial court's order granting a defense motion for summary judgment, ruling that the plaintiff was the cause of his accidental fall in a slip-and-fall case.

A property in Suffolk County, New York had a staircase handrail that ended before the last step. The plaintiff was descending this staircase with a full pot weighing a whopping 35-40 pounds. The plaintiff fell down the stairs and injured himself. In a slip-and-fall action for negligence, the plaintiff alleged that the staircase handrail was defective, thus causing his fall.

stairs2.jpgDuring a deposition, however, the plaintiff said that he was unable to identify the exact cause of his fall. Depositions are interviews of plaintiffs, defendants, and other witnesses that are recorded as part of routine discovery in civil cases. The parties are able to ask the witness questions, and the witness's answers to these questions can be used by the court when evaluating a motion to dismiss, such as a motion for summary judgment.

A motion for summary judgment on all counts by the defense is essentially a motion to dismiss. The moving party is requesting that the judge find that there is no triable issue of fact for each count. Without a triable issue of fact, the count must be dismissed. In its motion for summary judgment, the movant must show that there is no genuine dispute of material fact that can only be decided by a jury.

The role of the jury in a civil case is to act as a fact finder. When facts are disputed, the jury evaluates the testimony and evidence presented at trial, assesses credibility, and tries to figure out what actually happened and who is responsible. If the facts are not disputed or if it is clear that the non-moving party is unable to show that there is a dispute that only a jury can settle, then summary judgment is proper.

When the defendant files a motion for summary judgment, he or she must argue that the plaintiff has failed to set forth a case for the jury. The defendant can rely on the plaintiff's complaint, as well as other evidence such as the depositions. Often times, the depositions will conflict with the complaint or will reveal additional information that may weaken the plaintiff's case.

Here, the plaintiff contradicted himself in a fatal manner. In his complaint, he listed the faulty staircase as the sole cause of his slip-and-fall accident. However, in his deposition, he did not blame the staircase. Rather, he said he did not know what caused his fall. In addition, he revealed in his deposition that at the time he was descending the staircase, both of his hands were occupied with carrying a very heavy pot. Thus it did not matter that the staircase was defective as he did not have any available hands to hold on to the staircase at the time of the fall.

The Second Department held that the plaintiff, in his opposition to the motion for summary judgment, failed to prove he was not the proximate cause of his own fall. Proximate cause is simply legal jargon that means that the event or action was sufficiently related to the injury that it could be said to be the cause of that injury.

Walking down the stairs with two full hands could have caused the plaintiff to be careless or unable to see where he was walking. He may have lost his balance or tripped. The stairway railing could not have caused or even prevented his fall because his hands were too busy carrying a pot to have grasped the handrail. Thus it could be said that the plaintiff was the proximate cause of his fall, not the faulty handrail.

Because the plaintiff failed to raise a genuine dispute regarding the cause of the fall, summary judgment was proper. The slip-and-fall complaint was therefore dismissed.

If you have been the victim of a slip-and-fall accident, consult the New York slip-and-fall accident lawyers at Gallivan & Gallivan today to discuss your potential claim.

Bardales v. VAM Realty Corp., 2015 NY Slip Op 00484

April 21, 2015

A Rear-End Car Collision Is a Prima Facie Case of Negligence

The New York Supreme Court, Appellate Division, Second Department affirmed an order denying defendant driver's motion for summary judgment in a rear-end car accident case.

accident.jpgIn 2011, the two plaintiffs were in their car waiting at a red light at the intersection of Ninth Avenue and 49th Street in Brooklyn, New York. While waiting, the defendant's car approached. The two cars collided. The rear of the plaintiff's car was damaged, and the front of the defendant's car was damaged. The plaintiffs filed a civil lawsuit for negligence.

During litigation, the plaintiff filed a motion for summary judgment, stating that it had established negligence and was owed judgment as a matter of law. In response, the defendant filed a cross motion for summary judgment, arguing that the defendant was entitled to judgment as a matter of law because he had not acted negligently. The trial court denied both the plaintiff's motion and the defendant's cross motion.

Negligence is the failure to exercise a duty of care to prevent reasonably foreseeable injury. There are an infinite number of various duties of care that exist. For instance, property owners have a duty of care to maintain their properties in safe conditions for guests. Municipalities have a duty of care to maintain the roads by removing snow or fixing potholes. And drivers have a duty of care to obey traffic laws and street signs and drive safely.

When a rear-end collision occurs with a stopped or parked vehicle, then the plaintiff has established a prima facie case of negligence. The defendant driver must then rebut this prima facie case by proving that he did not act negligently. An example of a non-negligent explanation for a rear-end collision is that "sudden or unavoidable circumstances" occurred.

Regarding the plaintiff's motion for summary judgment, the plaintiff succeeded in establishing a prima facie case of negligence because a rear-end collision had occurred. The plaintiffs provided their own testimony that the defendant driver crashed into the rear of the plaintiffs' car while they sat at a red light. It was therefore the defendant's job to rebut this negligence with a justified excuse.

In his cross-motion for summary judgment, the defendant asserted that he had not acted negligently. In fact, he alleged that the plaintiffs had caused the accident. He cited his affidavit, in which he stated that he was slowly approaching the plaintiffs at the red light. Suddenly, for no reason and without warning, the plaintiffs began reversing and hit the front of his car.

Because of the conflicting stories, it wasn't appropriate to grant either the motion or cross-motion. The conflicting testimony created a genuine dispute as to whether the plaintiff either caused the crash or at least contributed to it. As such, it was proper to deny the motions and allow the case to go to a jury for a decision.

Often times, trials appear to be battles of he-said-she-said. What should a plaintiff do if the defendant tries to rebut a claim by blaming the plaintiff?

First, the burden of proof in personal injury lawsuits is fairly low. The burden of proof is preponderance of the evidence. This means that the plaintiff's version of the facts is more probable than not or more likely than not to be true. This could mean that the plaintiff has only proved his or her case by 51%. If the plaintiff's case is stronger, even slightly, than the defendant's defense, then the plaintiff will win under the preponderance of the evidence standard.

Second, the defendant may be liable for perjury if he or she lies during a deposition or in an affidavit or while testifying on the stand. Perjury is simply legal jargon for lying while under oath. A trial court judge has broad discretion for fashioning sanctions when perjury has occurred. This can include striking a defendant's testimony, prohibiting defense attorneys from using the defendant's statements as evidence, or even granting summary judgment for the plaintiff.

If you or a loved one has suffered personal injury during a car accident, don't hesitate to contact the skilled personal injury lawyers at Gallivan & Gallivan today.

Lisetskiy v. Weiss, 123 AD3d 775 (2nd Dept. 2014)

April 16, 2015

Study: Eating while Driving Accounts for 80% of All Car Accidents

Each year, an astonishing 1.3 million people die in car crashes, and a whopping 20-50 million are injured. Car accidents are the 9th leading cause of death among adults and the #1 cause of death among young people. These crashes cost U.S. citizens over $230.6 billion each year. The vast majority of these accidents are caused by negligent and reckless drivers.

fries.jpgIn fact, a new study by the National Highway Traffic Safety Administration, described in the NY Daily News, has shown that 80% of car accidents in the U.S. are caused by distracted drivers who are eating while driving. While many drivers feel confident in their multitasking abilities, the facts show that eating while driving is dangerous. An alarming 70% of drivers eat while driving, and 83% drink beverages. Eating and drinking distracts drivers. Rather than focusing on the road, drivers are focused on rooting around in the bag for the last French fry and unwrapping a sandwich.

The National Highway Traffic Safety Administration found that burgers are the most commonly eaten food during food-related car accidents. Given the prevalence of fast food restaurants and the relative ease of grabbing a burger to-go from a drive thru, this is not surprising. What is surprising, though, are the other top contenders on the list. Soup, tacos, chili dogs, ribs, wings, fried chicken, jelly donuts, and chocolate are all top culprits. In addition, coffee and soda have been notorious for causing spills that distract drivers and cause 65% of near misses.

One of the main reasons why distractions such as food and drinks cause so many accidents annually is that reaction time is seriously hampered. If a driver cuts you off, there is an unexpected dip in the road, or debris is flying toward your car, you can't react fast enough to swerve out of the way when you are focused on cleaning spilled coffee off of your jeans.

Despite its large population of 19.6 million residents, New York trends toward the bottom in a ranking of states by number of deaths per 100,000 drivers. Approximately 127,726,000 million miles are driven annually in New York, resulting in 1,199 deaths in 2013. If you are involved in a car accident in the state of New York, follow our tips for what to do post-crash to stay safe and build a case against the responsible party.
First, if someone hits your car, pull over into a safe location out of the way of oncoming traffic. Put your hazard lights on, and if available, place cones or hazard signs on the road behind your car. It is helpful to carry a car emergency kit in your trunk at all times that will include flares, a flashlight, hazard signs, and more.

After pulling over, call 911 to report the accident. New York State Vehicle and Traffic Law requires that any accident involving damage of $1,001 or more or injury or death must be reported to the police. In addition, the law requires that drivers exchange information regardless of the amount of damage. This information includes driver's license number, insurance, and registration.

After dialing 911, make sure you and other passengers are not injured. If there are no injuries, survey the damage. Take photos with your cell phone of the damage to your car and the other car. If there are any witnesses, get their contact information. When the police arrive, try to have any witnesses give statements to the officer. Make sure to tell the officer everything you remember, including how fast you were driving, what the driving conditions were like, whether you saw the other party's car, and any potential injuries. You can obtain a copy of the police report from the local police precinct or through the DMV.

If you are able to drive your car away from the crash site, call your insurance company when you get home to notify them of the accident. Then call the insurance company of the other driver. You will likely be asked to give a recorded statement of what happened.
If you or a loved one was injured in a car accident, contact the New York auto injury expert attorneys at Gallivan & Gallivan today to discuss your case.

For additional information, please see:

Annual Global Road Crash Statistics, Association for Safe International Road Travel;

General Statistics, Insurance Institute for Highway Safety Highway Loss Data Institute;

Motor Accident Reports, New York Department of Motor Vehicles

April 15, 2015

Doctor Faces Medical Malpractice Claim for Failing to Diagnose Cancer

The Supreme Court of the State of New York, First Judicial Department affirmed an order by the Supreme Court of New York County that had dismissed a doctor's motion for summary judgment that sought dismissal of a case alleging that the doctor failed to diagnose pelvic cancer.

The plaintiff had a long and tumultuous history of cancer. Despite being aware of this, plaintiff's doctor failed to diagnose a cancerous mass in the plaintiff's pelvis. At the time, the plaintiff was undergoing IVF procedures with the gynecologist doctor. IVF, or in vitro fertilization, helps women increase their chances of carrying a child to term by implanting fertilized eggs into their uteruses. This form of pregnancy is referred to as in vitro because the sperm fertilizes the egg in a laboratory dish before then being carefully injected into the uterus. The IVF procedure is long and complex. Prior to beginning IVF, patients generally seek supervised treatment from gynecologists, including ultrasound scans of their ovaries and uteruses, hormone injections, and more.

During this time period, the plaintiff had a cancerous mass in her pelvis that went undetected and undiagnosed by the gynecologist defendant overseeing the IVF procedure. The plaintiff brought a medical malpractice claim for failure to diagnose.

The defendant filed a motion for summary judgment, arguing he was entitled to judgment as a matter of law. In his motion, the defendant included the opinion of an independent medical expert. However, this medical expert failed to properly address the plaintiff's allegation that the doctor had not properly diagnosed the cancer and that the doctor's malpractice had not proximately caused her injuries. Because the defendant failed to make a prima facie showing that he was entitled to dismissal of the case, the burden never shifted to the plaintiff to raise an issue of fact.

In general, when a party files a motion, it is that party's burden to prove the motion. If that party is able to prove in their motion for summary judgment that there is no triable or disputed issue of fact, then they have built what is known as a prima facie case. The court must view the evidence in the light most favorable to the non-moving party. A prima facie case, if unrebutted by the non-moving party, will require that the motion be granted and the case dismissed. However, if a prima facie case has been built, the burden will then shift to the non-moving party to then raise a triable issue of fact.

Here, the defendant argued there was no disputed issue of fact. However, the defendant's expert testimony did not support this conclusion or rebut any of the allegations in the plaintiff's complaint, if viewing everything in the light most favorable to the plaintiff. Thus a prima facie case was not built. Because one was not built, the burden never shifted to the plaintiff to then raise a triable issue of fact regarding the failure to diagnose.

With that said, even though it was not her burden to do so in this case, the plaintiff did successfully raise an issue of fact. The plaintiff's expert, a gynecological oncologist, testified. This expert stated that a transvaginal ultrasound, commonly used by gynecologists, would have been more accurate in detecting the pelvic cancer. In addition, the expert opined that the cancer should have been discovered earlier because it was an endometrial sarcoma, which is a low-grade and slow growing cancer. Thus the defendant doctor should have discovered the cancer during the length of time the plaintiff was in his care.

As expected, the defendant's and plaintiff's experts offered competing opinions and conclusions. Due to the competing opinions, there was a genuine dispute of material fact regarding the cause and the progression of the disease. This was for a jury to decide, not a judge during a summary judgment motion. It is the job of the jury to act as the fact finder for disputed facts, not the judge.

If you or a loved one has suffered injury due to medical malpractice or a misdiagnosed illness, contact the New York medical malpractice expert attorneys at Gallivan & Gallivan today to schedule a consultation.

Carnovali v. Sher et al., 2014 NY Slip Op 07252