New York Injury Lawyers Blog

A study released by the Centers for Disease Control in late April found that elderly individuals are more likely to be killed in pedestrian accidents than younger members of the population. The study used data compiled from 2001 through 2010, and based its results on a per-100,000 person standardization. The highest death rates found in the study were among males seventy-five years of age or older. The study split this group into two groups: eighty-five and older and seventy-five to eighty-four. For men eighty-five and older, study found the death rate to be 6.35 per 100,000 accidents. This is more than four times the average death rate of 1.58/100,000. Men falling into the second age group had a significantly lower death rate of 4.53. Even with the drop of almost 2 men per 100,000, however, this rate is still roughly 2.85 times the average.

The study found survival rates for female pedestrians in these age groups to be significantly better than their male counterparts. Among the eighty-five and older group, female pedestrian deaths measured 2.43 per 100,000; the second group was measured at 2.16 per hundred thousand.

The study also investigated pedestrian death rates among ethnic groups. It found that the American Indian/Alaska Native population had the highest death rate, while whites ranked the lowest.

The study makes no definitive assertion as to why older members of society are more likely to be killed in a pedestrian accident than younger people. It does, however, note several unsurprising factors that lend themselves to this correlation. In general, seniors are more frail, disabled, and ill than younger generations. This could lead to inability to recover from injuries. Further, as we have noted before in the NY Nursing Home Abuse Lawyer blog, frequently falls, fractures, and accidents can lead to a physical and cognitive decline among seniors, making recovery that much more difficult.

The study seems to suggest that decline in vision and physical functionality may have something to do with these results, as they would make seniors more likely to be struck by vehicles. It seems though, that because the numbers are standardized, that this increase in opportunity would have no bearing on the overall death rate. Regardless, the study point to a necessity for seniors, and their caregivers, to remain alert and aware when on roadways. Being struck by a moving vehicle, much like any accident that may befall a senior, has a much greater negative effect on the elderly than it does on younger generations.

The full findings of the CDC can be found on its government website.

CBS New York is reporting that charges are pending against a Brooklyn driver whose passenger was killed in a crash early Monday morning. Police have said that the driver faces charges of DWI, manslaughter, reckless driving, and criminally negligent homicide. The driver was speeding on the Brooklyn-Queens Expressway when she hit the divider. A backseat passenger was thrown from the vehicle. The passenger died at the scene.

If convicted of the litany of charges against her, the driver faces incarceration. Under New York State law, A blood alcohol content between .08 and .18 constitutes DWI; blood alcohol above this falls into the category of aggravated DWI. Driving while intoxicated is a misdemeanor, so by definition the driver faces no more than one year jail time for this offense. The other misdemeanor that the driver faces is reckless driving. New York Vehicle and Traffic law defines reckless driving as driving or using any motor vehicle...in a manner which unnecessarily interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." As with the other misdemeanor charge, the maximum sentence for this is one year in jail.

More serious are the felony charges facing the driver. To be found guilty of criminally negligent homicide, an individual must cause the death of another person with criminal negligence. In other words, the negligence must be of such an extreme nature that it is punishable as a crime. In New York, criminally negligent homicide is a Class E Felony. An allowable prison term for Class E Felonies in New York State is between one and a half and four years. The final charge, listed by CBS as simply manslaughter, seems to make more sense as vehicular manslaughter in the second degree, due to the nature of the circumstances involved here. The applicable standard for vehicular manslaughter in the second degree for this case would be Penal Law section 125.12(1). This section of the statute states that a person is guilty when he or she causes the death of another person, and is in violation of section 1192(2) of the vehicle and traffic law (the DWI misdemeanor referenced earlier). Second Degree vehicular manslaughter is a Class D felony, and as such is punishable by a maximum of seven years in prison.

These charges, and their accompanying potential terms of incarceration, display the severity that can arise out of driving under the influence of alcohol. A young woman is dead, leaving behind a family to move on without her, and the driver faces years behind bars. The story is a reminder of the dangers and consequences of DWI.

Website resource: Driver In Fatal Brooklyn Crash Faces Manslaughter Charges; CBS New York

A Queens car accident has led to the arrest of a seventeen year old, according to the Daily News. Police estimated that the youth was driving in excess of one hundred miles per hour at 4:30 p.m. last Friday, the time of the crash that left ten people injured, but amazingly, none dead.

According to the News, the driver has been charged with reckless endangerment, although it does not specify which degree of reckless endangerment law enforcement officials have charged him with. Reckless endangerment in the second degree is a Class A Misdemeanor, and involves recklessly engaging in conduct that creates a substantial risk of injury to another person. The more serious crime is reckless endangerment in the first degree, which is classified as a Class D Felony. To be found guilty of first degree reckless endangerment, circumstances must evince a depraved indifference to human life, and under these circumstances an individual engages in conduct that creates a grave risk of death to another person. The Court of Appeals has defined depraved indifference as follows: "'Depraved indifference', as required to support conviction for first-degree reckless endangerment, is best understood as an utter disregard for the value of human life, a willingness to act not because one intends harm, but because one simply does not care whether harm results or not." People v. Feingold, 7 N.Y.3d 288, 852 N.E.2d 1163. So essentially, depraved indifference is a means of showing mental state by showing a gross lack of care.

Whether the prosecution will pursue the felony charges is unclear from the report in the Daily News. Perhaps they will show leniency because of the driver's age. To be certain though, driving one hundred miles per hour at a busy time of day could, in the eyes of a reasonable juror, be found to be depraved indifference to human life. How the rest of the story plays out remains to be seen.

The case will likely result in numerous civil lawsuits brought on behalf of the injured parties against the seventeen year old. Given his age, he may have been covered under his parents' car insurance policy. Whether the coverage will be enough to properly compensate those injuries will depend on the extent of the injuries suffered, which were not reported by the Daily News.

Website Resource: Teenager arrested in 100 mph three-car crash that injured 10 in Queens, NY Daily News.

A Barnes and Noble security guard won an appeal for reversal of summary judgment in a Second Department ruling decided on Wednesday. The guard had sued for personal injuries in Westchester County Supreme after falling from a loading dock. The fall occurred after the guard's foot became ensnared in garbage while working on the loading dock.

The Appellate Court determined that the defendants established that they did not create the hazardous condition, and did not have actual notice of the condition. However, the Court also found that the plaintiff raised an issue of fact as to whether the defendants had constructive notice of the condition. Blacks Law Dictionary defines constructive notice as "information or knowledge of a fact imputed by law to a person, because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it."

Plaintiffs here claimed that the hazardous condition was recurring on the dock thereby providing the defendants with constructive notice of the condition. Plaintiffs further argued that the defendants had failed to address the issue.

As always in cases such as this, the favorable ruling by the appellate court does not mean that the plaintiff has won his case. It simply means that the Supreme Court erred in granting summary judgment to the defendants, and that the raised issues of fact preclude granting summary judgment as a matter of law. The case will be returned to the Supreme Court for a Trial.

The Second Department's ruling can be found on the New York State Official Reports website.

On May 1st, the Second Department affirmed a summary judgment ruling in favor of a defendant NYC bus in a personal injury case involving a fall. The plaintiff had sued for personal injury after falling inside the bus when the driver stopped short. The defendant, New York City Transit Authority, was granted summary judgment by the Supreme Court in Queens. The driver of the bus testified that a car had swerved in front of him while making an illegal lane change, which led to the sudden braking. It was the jolt from this short stop that caused the plaintiff's fall and subsequent injury.

The appellate court, in affirming the order, cited the emergency doctrine, which states that an individual may not be held negligent for reasonable and prudent actions in the face of an emergency, if the emergency is sudden, unexpected, and not of the individual's own making. Left with no time to reflect on a course of action, the individual avoids liability if his or her actions are reasonable within the context of the emergency. As the plaintiff failed to raise a triable issue of fact in response to the emergency doctrine presented by the defendant, the court granted summary judgment for the defendant, and now the Second Department has affirmed. To avoid a collision, and the risk of serious injury to the other driver and the other passengers on the bus, the driver acted reasonably and prudently in his sudden application of the brake. Thus, although one passenger was injured, the driver's actions were protected by the emergency doctrine.

The full Order by the Appellate Court can be found here on the New York Official Reports website.

A New York City cab driver who had been on trial for the attempted murder of two would-be passengers was acquitted yesterday of the attempted murder charges. Instead, he was convicted of reckless assault and leaving the scene of an accident. The charges stemmed from an incident in 2011, during which the driver, Mohammed Azan, refused to drive two potential customers from Manhattan to the Bronx. A confrontation of some sort occurred when Azan refused. During this altercation, Azan struck the men with his cab. Although it appeared from the evidence that Azan had been traveling at a relatively slow rate of speed (probably somewhere between ten and fifteen miles per hour), one of the men suffered a cracked skull from the assault.

The applicable definition of assault here is that Azan recklessly caused serious physical injury to another person by means of a deadly weapon or dangerous instrument. This is a Class D felony, punishable by a minimum of 2 years in prison. The maximum sentence for a Class D felony is 7 years in prison. While this is certainly a harsh penalty, it pales in comparison to the penalty that Azan would have faced had he been convicted of the more serious attempted murder charge. Attempted murder is a Class B felony, the term for which is no less than 5 years and no more than 25 years in prison. So while Azan is facing serious time in prison, it is not nearly as much time as it could have been under an attempted murder conviction.

The New York Post has the full story of Azan's trial and conviction, including the perspective of Azan's criminal defense attorney, and can be found here.

In the recent case, Burgos v. Montemurro Enterprises, LLC, the First Department of the Appellate Division, New York State Supreme Court, upheld a Bronx trial level decision denying a personal injury defendant's motion for dismissal.

The Plaintiff Samuel Burgos was injured when he tripped and fell on uneven planks while walking up a wooden walkway in front of his apartment. In reviewing the record, the Appellate Court found that the deposition testimony of the plaintiff, plaintiff's son, owner of the property, and the building's superintendent, as well as photographs of the planks, all raised issues as to whether defendant had constructive notice of the defective condition (the uneven wooden planks).

Defendant's expert opined that the lighting was sufficient at the time of the accident based on an inspection performed nearly two years after the accident. However, the Court found that there was additional testimony at various depositions that precluded a finding that inadequate lighting of the area was not the cause of the accident. As a result, the Court affirmed the trial Court's decision allowing the case to move forward to trial.

If you or a loved one has been injured in a trip and fall accident, please contact Gallivan & Gallivan in order to protect your rights.

Resources:

Burgos v Montemurro Enters. LLC, 2013 NY Slip Op 00554 (January 31, 2013).

Last week, New York Attorney General Eric Schneiderman released a statement detailing the arrests of eight motor vehicle inspectors, who are charged with falsifying inspection certificates. Combined, the eight inspectors certified more than thirteen thousand uninspected vehicles, often charging exorbitant amounts of money to push the certifications through.

The defendants allegedly used knowledge of the inspection system to certify cars that would not meet New York's emissions standards. According to the Attorney General's press release, the inspectors employed a process known as a clean scan to obtain the fraudulent inspections. In the clean scan process, the emissions of a different vehicle are measured after the information of the questionable vehicle is entered into the system. Several of the corporations employing these wayward inspectors have also been charged, as a lack of oversight allowed these fraudulent practices to continue unchecked. In addition to the criminal consequences discussed below, the inspectors and/or their employers could be held responsible if any of the vehicles that passed the emissions tests should not have been on the road and were subsequently involved in accidents.

Each of the defendants faces at lease one felony charge of Criminal Possession of a Forged Instrument in the Second Degree. Defined in section 170.25 of the New York State Penal Code, " [A] person is guilty of Criminal Possession of a Forged Instrument in the Second Degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10." One such instrument defined in section 170.10 is a written instrument officially issued or created by a public office or government instrumentality, such as a motor vehicle inspection certificate. Some of the defendants face additional felony charges. Accompanying the felony charges, which if convicted would constitute prison time, the inspectors also face misdemeanor charges with hefty fines attached.

Attorney General Schneiderman's press release, including the names of the alleged offenders and their places of business, can be found at the official attorney general website here.

A Manhattan cosmetic surgeon whose patient died after a risky liposuction procedure turned himself in to police last week on charges of manslaughter, reports the New York Post. Dr. Oleg Davie performed the procedure on a patient who had received a heart transplant in 2004, making the liposuction an extremely dangerous operation. In addition, authorities claim that Davie forged forms to insinuate that the patient had not informed him of the prior heart transplant. The patient's original medical history forms were found by a friend, and included the information regarding the transplant. Authorities allege that Davie removed this section of the history after the patient's death.

In a statement, Charles Hynes, the Kings County District Attorney, noted that Isel Pineda, the deceased, had a scar on her chest from the heart transplant. Combined with the original medical history form, this would have provided Davie with both actual and constructive notice of the dangers of performing the operation. Despite these warning signs, he carried through with the liposuction, and Pineda succumbed to cardiac arrest shortly after the operation.

In its story, the Post reports that Davie had been fined in the past by the Department of Health for negligence, although it does not say exactly what type of negligence. In addition to the criminal charges, which carry a maximum of thirty-four years in prison, Davie may face civil charges for medical malpractice and wrongful death.

The full story of this unfortunate event can be found here in the New York Post.

A study recently released by NYU Langone Medical Center reveals that roughly forty-five percent of pedestrians hospitalized at Bellevue were following pedestrian rules. The timeframe of the study was late 2008 through the middle of 2011.The study found that many cyclists ending up in the emergency room had been hit by cabs. Most of the accidents occurred during business hours, the busiest time of the day.

Of note in the study, fewer than one third of the cyclists were wearing helmets at the time of the accident. It also found that roughly fifteen percent of pedestrians and eleven percent of cyclists had been drinking alcohol prior to the accident. About one out of ten had been on their cell phone or listening to a portable music device.

The results of the study underscore the importance of paying attention while walking or riding a bike around New York City. Accidents can happen, regardless of the level of diligence one takes to follow standard traffic and walking patterns. In a city as large and as busy as New York, pedestrians must always be on the alert for what is going on around them, as not everyone is as quick to follow the rules of the road.

NY1 has a story regarding the study, including quotes from cyclists and pedestrians. The story can be accessed here.

In the aftermath of the tragic accident that killed a married couple and their unborn child, several state legislators have called for reforms to New York State hit and run statutes. The New York Post reports that at least three legislators are championing reform that would allow for a presumption, under the law, of driving while intoxicated in cases of leaving the scene of an accident.

Under current New York Vehicle and Traffic Law section 600(2)(a), a driver must provide identification to the injured party if the driver knows or has reason to know that he has caused personal injury to another person while operating a motor vehicle. Failing this, the driver must report the accident to a police officer either at the scene or, as soon as physically possible, to the nearest police station. A hit and run accident resulting in death is deemed a Class D felony, punishable by a fine of up to $5,000 and possible prison time.

Assuming that the driver was under the influence, as the lawmakers are considering proposing, would add a much stiffer penalty to the hit and run driver responsible for the death of Raizel and Nachman Glauber in Brooklyn this past weekend. Under New York Penal Law section 125.14, the driver could be guilty of Aggravated Vehicular Homicide for his role in the deaths. Aggravated Vehicular Homicide is a Class B felony, as opposed to the Class D described in the paragraph above. In New York, severity of felonies ranges from A (most severe) to E (least severe). A Class B felony would carry a much stiffer penalty than a Class D.

Of course, at this point, legislators are simply discussing these possible changes. How much, if any, traction they will be able to gain with their fellow state senators and assembly-people remains to be seen. It will be an interesting topic to follow in the coming months, as the proposed legislation stems from a tragedy that has gotten intense local and national attention already.

The New York Post covered the statements. A write-up can be found at the link below.

Pols: No more 'flee' passes

In November, the Supreme Court Appellate Division, Second Department, modified an order striking the defendants' demand for status reports, pictures, and videos on the Facebook page of one of the two plaintiffs in the action. Originally the Kings County Supreme Court had denied the demand. On appeal, the Second Department ruled that an in camera review of the plaintiff's Facebook account would be proper, in order to determine which postings were relevant to the plaintiff's condition post-accident.

The original accident involved a car accident, after which the plaintiff, Michelle'le McCarthy, claimed that the accident hindered her ability to play sports. She also claimed pain and suffering, particularly in colder weather. During its investigation, the defense found unprotected pictures on the plaintiff's facebook page showing her skiing after the accident. Although the Supreme Court denied the defendants' demand, the court directed that all photos showing McCarthy "participating in a sporting activity" be sent to the defense.

The Second Department ruled that the lower court did not go far enough. Because a photo was found that did indeed have probative value, the Court determined that other information on McCarthy's Facebook page could be relevant as well. However, because parts of the plaintiff's page were privacy protected, the Appellate Court called for an in camera review to determine relevance as opposed to standard discovery procedure. In this manner, the judge would be able to decide which, if any, additional photos, status updates, or videos were relevant to the defendants' case. Should the judge deem no additional information on the plaintiff's page relevant, her privacy would remain undisturbed with respect to the rest of her Facebook account.

Underlying this Appellate decision is the issue of personal privacy rights, particularly in today's world with the ubiquity of technology and social media. It should be noted that the second plaintiff's Facebook account is not subject to the same in camera review. The Appellate decision is silent as to her privacy settings, but the Court does say that the defense was unable to find anything in her profile that would lead to the assumption that relevant information was available on her page. Had McCarthy taken more care to protect the privacy of her online profile, perhaps the Appellate Division would have found in her favor as well.

The Second Department's decision can be found here on the nycourts.gov website.

In November of last year, the First Department of the Appellate Division in New York affirmed an order of the trial court denying the defendant's motion to compel the plaintiff to produce particular medical authorizations that would have authorized the defendant to obtain certain medical records of plaintiff. The underlying contention of the plaintiff in this medical malpractice action was that the defendant's negligence caused her child to be stillborn.

The plaintiff in this action claims physical injuries resulting from her hospitalization for the pregnancy, as well as emotional and psychological injuries subsequent to the stillborn birth of her child. Other than the injuries allegedly sustained during the hospitalization, the plaintiff is not claiming additional physical injuries. She claims no injuries for obstetrical work performed after the hospitalization. It is these records for which the defendant sought to compel the plaintiff to provide authorizations. In its ruling, the First Department stated that the defendant "failed to establish a particularized need" for the additional records, and thus affirmed the Supreme Court's denial of the motion.

The First Department ruling can be found here.

In October 2012, the Supreme Court Appellate Division, First Department, affirmed an order granting summary judgment to the New York City Transit Authority in a matter involving a slip and fall at a subway station. In the case, Kinberg v. NYCTA, the plaintiff brought a lawsuit after she fell during a snow storm on an icy staircase leading away from the subway.

The NYCTA moved for summary judgment after presenting evidence that at the time that the plaintiff fell, a storm was in progress. The Court ruled, based on precedent in Solazzo v. NYCTA, that a landowner's duty to rectify an unsafe condition does not take effect until a reasonable time after the storm has ended.

In the current case, the Transit Authority presented evidence that the snowstorm was in progress at the time of the plaintiff's fall. Although the plaintiff claimed otherwise, her only basis for this opposing contention was her own testimony. She presented no objective evidence that the storm had subsided. Accordingly, the duty of the Transit Authority to remedy the condition had not been triggered, and the Court affirmed the lower Court's dismissal of the case.

For the Court's decision, go here to the New York State Law Reporting Bureau.

In Jeffers v Style Tr. Inc. decided in October 2012, the Supreme Court Appellate Division, First Department, reversed a summary judgment finding for the defendants in a car accident case dealing with the serious injury threshold. The Supreme Court initially ruled that the defendants had shown that the plaintiff had not sustained a serious injury, as defined by Insurance Law section 5102(d). On appeal, the Appellate division found that the defendant did not meet its prima facie burden and, even had it met this burden, the plaintiff had raised a triable issue of fact that should have allowed the case to go to trial.

The Court noted that the defendant's expert made conclusory statements regarding his opinion that the plaintiff did not suffer the injury in the accident, failing to support these statements with medical proof. Plaintiff's expert, on the other hand, raised issues including reduced range of motion in her knee, difficulty with everyday activities, and the need for post-accident surgery. Also, the Court decided that the defendant skirted the issue of causation, while the plaintiff showed that prior to the accident she had no symptoms.

Insurance Law section 5102(d), referenced above, defines a "serious injury" under New York law. One of the ways an injured party in a car accident case can prove a "serious injury" is to show, through objective evidence, "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." In other words, the injured party's customary daily activities must be hindered for roughly three of the six months following the date that the injury occurred. The Court in this action determined that the defendant did not establish the absence of this type of injury. The plaintiff claimed to have missed eleven months of work following her injury, and the defendant offered no evidence to refute this claim.

As always, the reversal of summary judgment does not mean a victory for the plaintiff. It simply means that the Court found that evidence of a triable issue of fact existed such that it would be proper to allow a jury to decide the facts of the case. The ultimate outcome is yet to be determined. The First Department's decision can be found here on the NY Courts website.