New York Injury Lawyers Blog

Recently, in a Westchester County, NY criminal matter handled by Gallivan & Gallivan, our client, a 20 year-old male, was arrested and originally charged with Assault in the second degree, a Felony, after a fight with his mother's boyfriend. The boyfriend was a 46 year-old with a criminal history of his own.

After Grand Jury testimony was obtained, the charges were reduced to four Misdemeanors and one violation. Our client was charged with the following:

Assault in the third degree (PL 120.00);
Menacing in the second degree (PL 120.14);
Criminal Possession of a Weapon in the fourth degree (PL 265.01 - 2 counts); and
Harassment in the second degree (PL 240.26).

Fully prepared for trial and pursuing a justification defense (self-defense), on the first day of jury selection, all charges were dismissed.

Earlier this month, a Brooklyn appellate panel upheld the murder conviction of Franklin McPherson. McPherson was convicted of second degree murder after driving the wrong way for approximately five miles on the Southern State Parkway in October of 2007, eventually striking another car and killing its driver. Defense counsel argued that because McPherson had been drinking, and in fact had a blood alcohol content of 0.19%, he therefore lacked the mental capacity to prove "depraved indifference." The trial court disagreed, and its decision was upheld on November 1, 2011 by the Appellate Division.

The New York Penal Code states that "A person is guilty of murder in the second degree when: (2) Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." The court ruled that McPherson "deliberately and purposefully proceeded the wrong way down a parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences." The court did not find his drunkenness a mitigating factor. Murder in the second degree is a class A-1 felony.

Read the Court's full decision here.

Last week, Queens County Supreme Court ordered that the complaint against the City of New York be dropped in a wrongful death suit of a Queens Assistant Principal who died of swine flu in 2009. The suit, filed by the decedent's family, claimed that the city failed to warn the decedent that he had been in contact with students who carried the swine flu virus, that the city did not act quickly to stop the spread of the virus, and failed to disseminate information about the virus.

The City, along with co-defendants the NYC Department of Health and Mental Hygeine, NYC Department of Education, and the Board of Ed for NYC, moved to dismiss the Complaint pursuant to New York CPLR Section 3211(a)(7), stating that the plaintiffs' pleading failed to state a cause of action. In finding for the defendants and dismissing the claim, the court stated that "[T]he city's response to a possible outbreak of a communicable disease is a discretionary action." Further, citing McLean v. City of New York, 12 NY3d 194, 203 [2009], a government action may not be the basis for liability if such action is discretionary. Based on this reasoning, the court dismissed the wrongful death complaint against the City.

Website Resource: New York Law Journal

Police in the Bronx are looking for a livery cab driver who they say struck a pedestrian with his car and then left the scene. After the first hit-and-run, the victim was hit by a sanitation vehicle, the driver of which stayed on the scene. The victim was taken from the accident site at East 163rd Street and Third Avenue to Lincoln Hospital, where he was pronounced dead.

The Accident Attorneys at Gallivan & Gallivan regularly represent pedestrians struck by vehicles in the New York area. Call us today for a free consultation.

Website Resource: NY1

A Bronx judge ruled on October 7th that the Bronx DA failed to meet the requirements of "exceptional circumstances" in failing to produce police witnesses in the criminal trial of a man accused of felony assault and marijuana possession, among other charges. The DA had argued that the witnesses, two police officers, were unable to testify because of injuries sustained during the defendant's arrest. Both officers suffered wrist injuries during the arrest.

Under New York Criminal Procedure Law section 170.30(1)(e), a criminal court may dismiss charges when a defendant is denied his or her right to a speedy trial. Further, under section 30.30(1)(a), a motion made pursuant to 170.30(1)(e) must be granted when the prosecution is not ready for trial within six months of the commencement of the criminal action, if at least one of the charges against the defendant is a felony. Article 30 outlines an "exceptional circumstances" exemption from this speedy trial requirement, however the court in this case ruled that the officers' respective wrist injuries did not meet the standard for this exemption. Their wrist injuries did not affect their ability to testify. Additionally, the People failed to produce relevant medical documents to support the delay. As such the court ordered a recalculation of the speedy trial time.

In May, a Brooklyn jury awarded over $36,000,000.00 in damages in a case involving a 12 year old boy on a bicycle struck by a speeding motorist. The victim sustained fractures of the skull and ankle, as well as brain damage after being struck by the defendant, who, according to investigators, was driving 24 mph in excess of the speed limit. The boy's mother, acting both individually and on behalf of her son as his guardian, sued the driver for negligently operating his motor vehicle; the owner of the vehicle, claiming vicarious liability; and the city of New York for negligently failing to address a persistently dangerous condition that caused the accident.

In suing the city, the plaintiff contended that speeding was a persistent problem on the road where the accident occurred. The plaintiff claimed that the city knew this, yet failed to implement measures to deter speeding. As such, this failure to act constituted a proximate cause to the boy's injuries.

Along with damages for pain and suffering and medical expenses, the plaintiff sought damages for future lost earnings. An expert for the plaintiff testified that prior to his injury, the boy would have been able to earn a salary equal to or above the national average. Due to the brain damage sustained in the accident, however, the child now stands to earn a minimal salary because of the probability that he will only be able to maintain part-time employment. The plaintiff asked for $6 million in lost future earnings.

The jury found liability to be 50% for the car owner and driver, 40% for the city, and 10% for the child. The final damage award found by the jury was $36,161,797.52. Subtracting the 10% comparitive-negligence for the boy, the total damages awarded to the plaintiff family were $32,545,617.77. The insurer for the individually named defendants is obligated to contribute $50,000.00. In all likelihood, this is all that they will contribute. The rest of the damages fall to the city to pay. Unfortunately for the plaintiffs, the city must pay all remaining economic damages, but only 30% of the noneconomic damages. Thus, the $31M+ figure will likely come down. It is still a substantial monetary award, but doubtless an award the family would forego to have avoided the accident altogether. Robert Walker, Esq. of Mineola, NY represented the plaintiff in this case.

Website Resource: New York Law Journal

In August, a Queens jury awarded damages in excess of 20 million dollars to a woman struck by an MTA bus in Long Island City. The plaintiff, a housekeeper, was awarded summary judgment after a surveillance video established that the pedestrian had the right of way. The bus did not yield and struck the plaintiff. Among her resulting injuries were multiple fractures of her dominant arm, facial abrasions and contusions, and subsequent amputations of the right (dominant) arm above the elbow and right leg below the knee. The plaintiff required twenty subsequent surgeries and seven months of rehabilitation.

The plaintiff claimed negligence on the part of the bus driver, and vicarious liability on the parts of the MTA, New York City Transit Authority, and MTA Bus Company. "Vicarious liability" allows for an employer to be held liable for the actions of his or her employees in certain situations. Generally, the employee must be performing the standard operations of his or her job description at the time the offense occurs for the employer to be held liable. In the case at hand, the plaintiff asserted vicarious liability because the driver negligently performed an everyday aspect of his job. The MTA employs him to drive the bus with reasonable care. and in this instance, he performed this duty negligently, so his employers could be found responsible for his negligence.

The breakdown of damages is as follows:

• $483,907.00: Past medical expenses

• $4,832,142.00: Future medical expenses

• $4,000,000.00: Past pain and suffering

• $11,000,000.00: Future pain and suffering

The defense has appealed both the summary judgment finding and the amount of the damages. The plaintiff has also moved to increase the award for past medical expenses. The law firm, Lipsig, Shapey, Manus & Moverman, PC, represented the plaintiff.

In a recent Westchester County, NY personal injury, slip and fall lawsuit, the plaintiff nurse claimed that she had slipped on urine while assisting a handicapped teenager who attended school at the defendant Pines Bridge Program. The school was owned and operated by defendants, Putnam / Northern Westchester Board of Coop. Services, and the plaintiff was employed as a private nurse for the teenager.

The Trial Court awarded summary judgment to the defendants, and, on plaintiff's appeal, the New York State Appellate DIvision, Second Department reversed. The Appellate Court found that a "defendant moving for summary judgment in a slip and fall case has the burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence."

According to the appellate decision, the defendants, in their motion for Summary Judgment, offered admissible evidence of general cleaning practices. However, the defendants failed to provide any evidence of specific cleaning or inspection on the day of plaintiff's fall, and thus failed to establish their entitlement to summary judgment.

Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 2011 NY Slip Op 05950 [86 AD3d 551] (2d Dept. 2011).

At trial in Kings County Supreme Court, a jury found Defendant, New York City Transit Authority, 70% at fault when Plaintiff, Clyde Davison, was struck by a train. Mr. Davison suffered a fractured clavicle and a fractured scapula as a result of the accident. The same jury awarded Mr. Davison $150,000 for past pain and suffering and $66,000 for future pain and suffering.

Plaintiff appealed arguing that the awards for pain and suffering were unreasonably low given the severity of the injuries. The Appellate Division, Second Department, agreed. The court increased damages on past pain and suffering from the principal sum of $150,000 to $275,000 and future pain and suffering from the principal sum of $66,000 to $175,000.

As a result, Mr. Davison will either have a new trial on damages or the Defendant will agree to pay at total of $315,000 ($192,500 ($275,000 x .70) for past pain and suffering and $122,500 ($175,000 x .70) for future pain and suffering).

Davison v New York City Tr. Auth., 2011 NY Slip Op 06244 (2d Dept. 2011).

A court in upstate New York (Niagara County) recently dismissed a misdemeanor charge of assault in the third degree due to a fatal defect in the factual assertions of the case included in the accusatory instrument. As a brief background, the defendant was accused of punching his brother-in-law in the face, and subsequently striking him in the face with a stick. As a result, the brother-in-law suffered an abrasion to the face for which he received medical attention. After the on-site treatment, the brother-in-law received no further medical care for the wound.

According to Section 120 of the Penal Code, an individual is guilty of assault in the third degree if he or she intends to cause physical harm to another individual, and causes such harm; recklessly causes physical injury to another person; or negligently causes physical injury to another person with a deadly weapon or dangerous instrument. Physical injury is defined by the Code as "impairment of physical condition or substantial pain."

As the statute states, impairment of physical condition or substantial pain must be shown to prove physical injury. The court cites a previous decision, People v. Chiddick, which ruled that when substantial pain is established, so too is physical injury. Of course, as the court concedes, "substantial pain" has a subjective standard. In Chiddick, there was evidence of bleeding and a broken fingernail, as well as testimony from the victim. In the present case, the only claim regarding "physical injury" included in the accusatory instrument was a minor abrasion to the face. As such, the court ruled that the State's case was defective, as it did not properly allege the element of substantial pain. In light of this, the court granted the defendant's motion to dismiss the charge of assault in the third degree.

People v. McDowell, 11030021, NYLJ 1202514685987, at *1 (Town, Niagara, Decided August 16, 2011).

Last week, the Second Department upheld a jury verdict in a Suffolk County medical malpractice action. The plaintiff sought and received from the Defendant doctor, among other things, counseling for mental health issues. During the course of the plaintiff seeing the defendant professionally, a personal sexual relationship developed. The consensual relationship lasted approximately nine months, until the parties concluded their affair.

The plaintiff acknowledged that at no time did the defendant physician say or imply that the sexual relationship was "part of the treatment." Additionally, the defendant was not a mental health professional. The court stated that these facts were irrelevant, however. By acting in the capacity of a mental health professional, i.e. counseling the plaintiff and engaging in "talk therapy," the defendant was in essence performing the function of a mental health professional. In such cases, the court found that a sexual relationship is likely to have a negative impact on the patient, regardless of whether or not such a relationship was coerced. The court found that despite the consensual nature of the relationship, its very existence was a departure from the recognized standard of care.

The court found that the jury award did not materially deviate from reasonable compensation. Originally, the jury awarded $150,000 for past mental distress, $50,000 for future mental distress, $134,000 for loss of past financial support, and $166,000 in punitive damages. The jury found the defendant 75% at fault. The Second Department court affirmed the jury award, with a bill of costs to the plaintiff.

Website Resource: Dupree v. Giugliano, 19557/04, NYLJ 1202514716761, at *1 (App. Div. 2nd, Decided September 13, 2011)

In an Orange County, NY criminal case, our client, a criminal defendant was charged with 2 counts of misdemeanor driving while intoxicated (DWI) while operating an ATV. His BAC reading was .16. In New York, the legal limit is .08. Under New York Law, misdemeanor driving while intoxicated is defined under Vehicle & Traffic Law Section 1192. The section, in relevant part, states:

§ 1192. Operating a motor vehicle while under the influence of alcohol or drugs.
1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.

2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article...

2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.
(b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.

3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

Our client was charged with violating sections 1192(2) and 1192(3). The section 1192(2) was based on the client's BAC reading being over the legal limit. The section 1192(3) charge was based on the police officer's observations (ie. slurred speech, erratic driving). After a bench trial, our client was acquitted of all criminal charges.

If you or someone you know has been charged with DWI, your first call should be the New York DWI Attorneys at Gallivan & Gallivan.

The Westchester County criminal defense attorneys at Gallivan & Gallivan represented a client in Bronx County charged with Grand Larceny in the Second Degree. The charges were the result of an investigation by the Attorney General of the State of New York. The client was extradited from Florida to face charge. Under New York Penal Law § 155.40, Grand larceny in the second degree is defined as follows:

A person is guilty of grand larceny in the second degree when he steals property and when:

1. The value of the property exceeds fifty thousand dollars; or
2. The property, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property, or (c) use or abuse his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely.

Unable to make bail, the client was confined to jail for four months while counsel was attempting to resolve her case. Facing a maximum jail sentence for a "C" felony of up to 15 years and restitution of over $370,000.00, a plea was entered whereby a sentence of time served (4 months), probation, and a fine of $10,000 was imposed.

If you or a loved one is charged with a crime your first call should be to Gallivan & Gallivan for criminal defense representation.

The White Plains, NY criminal attorneys at Gallivan & Gallivan recently represented a criminal defendant in County Court in Orange County, NY, accused of Burglary 3rd, a class "D" felony as a second felony offender. As a second felony offender, the defendant was facing up to 7 years in State Prison. Under New York Penal Law § 140.20, Burglary in the third degree is defined as follows:

A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.

After extensive preparation and preliminary hearings, the matter was tried. The client was incarcerated as he was unable to make bail. After a four day trial, the client was found not guilty and released.

Our firm recently represented a criminal defendant in a local city court charged with the following offenses under 2 separate dockets:

Docket #1

1) Attempted Assault in the third degree (Penal Law §120.00); and
2) Harassment in the second degree (Penal Law §240.26).

Docket #2

1) Assault in the third degree (Penal Law §120.00);
2) Menacing in the second degree (Penal Law §120.14);
3) Criminal Mischief in the fourth degree, three counts (Penal Law §145.00); and
4) Harassment in the second degree (Penal Law §240.26).

The charges stemmed from two incidents of alleged domestic violence that occurred within a twelve hour period. The defendant was alleged to have threatened his wife with a knife, and assaulted his wife by throwing a computer monitor and glass table at her.

Both cases were fully prepared for trial. On the first day of jury selection, both cases were dismissed when the People could not present a prima facie case.