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

April 15, 2015

Appellate Division, First Department Orders that Inconsistencies in Plaintiff's Evidence Preclude Summary Judgment

The Supreme Court of the State of New York, Appellate Division, First Judicial Department reversed an order by the Supreme Court of Bronx County that granted the plaintiff's motion for partial summary judgment in a scooter accident case.

The plaintiff was riding a scooter northbound on Riverside Drive, a two-way street, when he encountered the defendant. The defendant, driving a car, was waiting in the left turn lane of southbound Riverside Drive. When the defendant attempted to turn left onto 88th Street, she hit the plaintiff's scooter in the intersection. A police officer responded to the scene of the crash and spoke with the plaintiff and an eyewitness. According to the certified police report, the plaintiff told the officer he didn't remember anything before the crash. However, an eyewitness told the officer that while the defendant caused the accident when she pulled into oncoming traffic, the plaintiff was driving his scooter at 40 to 50 miles per hour.

The plaintiff filed a motion for partial summary judgment on the issue of the defendant's liability for the car crash. The plaintiff argued that the defendant's conduct while driving, as well as her confession that she never saw him or his scooter until after the crash, was enough to establish a prima facie violation of the Vehicle and Traffic Law. In support of his motion, the plaintiff included the certified police report. The plaintiff also included an affidavit from himself, as well as an affidavit from the eyewitness. However, the affidavits contradicted the police report. In his own affidavit, the plaintiff said he did remember the crash and that he had attempted to brake before the crash. The eyewitness's affidavit stated that the plaintiff appeared to be driving at the speed of the normal flow of traffic at that time.

The defendant opposed the motion, arguing summary judgment was not proper because the plaintiff's motion, police report, and affidavits did not prove where the plaintiff was in the intersection when the defendant began the left turn. In addition, the defendant argued that it was still disputed whether the plaintiff was speeding at the time of the accident and whether the plaintiff had used reasonable care to avoid the accident.

Here, the plaintiff alleges the defendant violated Vehicle and Traffic Law Section 1141. This law states that any driver turning left must yield the right of way to a driver approaching from the opposite direction who is either in the intersection or close enough to create an immediate hazard. Thus, if the plaintiff proves that his scooter was in the intersection or close enough to create an immediate hazard or risk of a crash, yet the driver attempted to turn left anyway without yielding to the plaintiff, then the plaintiff should win.

However, the defendant does have some cognizable defenses. First, courts in New York require that a victim of the car crash use reasonable care to avoid the accident. This may be why the plaintiff decided to include an affidavit in which he stated that he had attempted to brake prior to the accident. This was meant to serve as proof that he had used reasonable care (braking) to avoid the crash.

Second, motions for summary judgment or partial summary judgment are only to be granted when there is no issue at dispute for the court to try. The plaintiff is attempting to argue that there is no dispute as to whether the defendant violated the law on left turns. However, this is not necessarily the case. By introducing the police report and the affidavits into the record as attachments to the motion for partial summary judgment, the court is now aware of inconsistencies in the plaintiff's claims. This creates an issue of material fact. Was the plaintiff speeding at the time of the crash? Did the plaintiff act negligently, and if so, did this negligence contribute to the cause of the crash? Did the defendant violate Vehicle and Traffic Law Section 1141? Because these issues remain outstanding, the lower court's order granting the plaintiff's motion for partial summary judgment was reversed so that the court can try the outstanding issues.

If you or a loved one has been injured in an auto accident, please do not hesitate to contact the New York automobile injury expert attorneys at Gallivan & Gallivan today to discuss your potential claim.

Espinal v. Volunteers of Am.-Greater N.Y., Inc., 2014 NY Slip Op 07260

April 15, 2015

Appellate Division, First Department Holds City of New York May Be Liable for Icy Slip-and-Fall

The Supreme Court of New York, Appellate Division, First Department has reversed an order issued by the Supreme Court for New York County that granted the City of New York's motion for summary judgment and dismissed the plaintiff's complaint that an icy patch caused her to fall and injure herself.

frozen.jpgOn December 23, 2008, the plaintiff was walking on a public sidewalk when she slipped on some ice and fell. She later filed a lawsuit against the City of New York, alleging the City failed to timely clear the sidewalk of ice in order to prevent her fall. The City filed a motion for summary judgment to dismiss the complaint.

As a matter of law, a motion for summary judgment will only be granted if no genuine issue of material fact exists that needs to be decided by a jury. In its motion, the City argued several things. First, the City argued that the plaintiff contradicted herself in her affidavit and her deposition regarding what exactly she slipped on. At her deposition, the plaintiff described the ice as "dirty" with "snow layers on top of layers." The plaintiff later clarified in her deposition that the ice was "slushy ice" that was "clean, like slippery, flat" with a little snow on top. However, in an affidavit submitted in opposition to the City's motion for summary judgment, the plaintiff stated that the ice was "one inch thick, flat, hard, and dirty, as if it had existed for several days." The appellate court held the deposition was not inconsistent with the affidavit. In addition, the appellate court held it generated a dispute of fact that needed to be tried, not decided on a motion for summary judgment.

Second, the City argued that it did not have a sufficient amount of time prior to the fall to clear the ice off of the sidewalk. The appellate court has held previously that snow and ice left on a sidewalk following a storm creates an "unusual and dangerous condition" and that it is the responsibility of the City, if a public sidewalk, to clear the sidewalk of snow and ice within a reasonable amount of time following a storm. Interestingly, the City claimed in its motion for summary judgment that it routinely clears streets after a snow storm but is not in the habit of clearing sidewalks. Regardless, the appellate court held that whether the duty to clear the sidewalk after the storm was triggered was a triable issue of fact that could not be decided on a motion for summary judgment.

In its motion, the City included no affidavit of an expert witness such as a meteorologist. Rather, the City's attorney made broad, sweeping conclusions about the weather. However, the parties did agree about the nature of the weather. On December 19th, four inches of snow fell. On December 20th, 0.5 inches of snow fell. On December 21st, 0.2 inches of snow fell. On December 21st after the snowfall, non-freezing rain then fell, and the temperatures hovered above freezing. On December 23rd, the average temperature was 21 degrees and never went above freezing. The City argued that the ice had formed only 48 hours before the fall but provided no analysis of the weather data to support this conclusion.

In her opposition, the plaintiff demonstrated there was a triable issue of fact regarding the source of the ice. Using the expertise of a meteorologist, the plaintiff argued that the ice came from the snow storm on December 19th, four days before the fall. The meteorologist opined that the non-freezing rain storm could not have caused any ice due to the high temperatures.

Because summary judgment on a snow or ice case requires both climatological data and expert opinion, the defendant's motion for summary judgment failed. Therefore, the lower court erred in granting the motion. The lower court's order is reversed, and the complaint is reinstated.

If you or a loved one was injured in a slip-and-fall after a storm, please contact the New York slip-and-fall expert attorneys at Gallivan & Gallivan to discuss your case today.

Rodriguez v Woods, 2014 NYSlipOp 06887

April 7, 2015

Fourth Department Holds Employer Liable for Unsafe Scaffolding

In its January, 2015 Decision, Bernard & Bernard v. Town of Lysander, 2015 CA 14-00649, the Appellate Division, Fourth Department has reversed an order of the Supreme Court of Onondaga County that denied the plaintiffs' motion for partial summary judgment relating to a fall that was caused by unsafe scaffolding at a construction site.

scaffold2.jpgThe plaintiff, a construction worker employed by the local government, was building a sewage treatment pump house when the accident occurred. At the time of the accident, the plaintiff was installing Hardie trim boards. In order to reach the upper level of the wall of the pump house to install the remaining boards, the plaintiff and a co-worker constructed a makeshift scaffold. The employer had provided only a 14-foot-long aluminum scaffold plank, so the plaintiff was forced to make do by placing one end of the plank into the bucket of a backhoe and nailing the other end to two pieces of wood that were attached to the side of the pump house. While precariously perched on this makeshift scaffold without any proper safety equipment, the plaintiff fell to the ground after the nails in the wood gave way. The plaintiff broke his ribs, injured his spine, and perforated a lung.

The plaintiff filed suit against the government employer for one count of violating Labor Law 240. Labor Law 240, also known as the Scaffolding Act, requires the employer to provide adequate safety protection for the worker, such as harnesses. The goal of Labor Law 240 is to protect the welfare of construction workers who must risk their safety by working at elevated heights, such as on scaffolding or ladders. By requiring adequate safety protection, Labor Law 240 ensures that employers utilize proper safeguards and punishes employers who shirk the requirement by imposing liability.

Following discovery, the plaintiff moved for partial summary judgment, arguing that the employer had failed to provide adequate safety protection as required by Labor Law 240. The employer opposed, arguing that there was a triable issue of fact regarding whether the plaintiff's construction of the makeshift scaffold was the proximate cause of the fall. The Supreme Court of Onondaga County denied the plaintiff's motion for partial summary judgment.

The Appellate Division, Fourth Department, held that the lower court erred in denying the plaintiff's motion. A motion for partial summary judgment can be made by either party and requests judgment as a matter of law on part of a claim or defense. In order to be successful, the party filing the motion must show that there is no genuine dispute of material fact regarding that part of the claim or defense. This means that there is no disputed issue that can be tried in court.

The appellate court held that the fact that the scaffolding gave way while the plaintiff was standing on it was sufficient proof that the scaffolding did not provide proper protection as required by Labor Law 240. In addition, the fact that the employer provided only the 14-foot-long aluminum plank and no safety gear, such as harnesses or safety lines, was further proof that the employer violated Labor Law 240. The appellate court held that it was not the responsibility of the plaintiff to attempt to fashion scaffolding out of the random supplies he had access to.

Finally, the appellate court addressed the employer's proximate cause argument. A proximate cause is a cause reasonably foreseeable as a result of the negligence. The employer argued that the plaintiff's shoddy construction of a makeshift scaffold was the proximate cause of the injuries. However, the appellate court held that the employer's failure to provide safety equipment contributed to the injury. Because Labor Law 240 does not permit the defense to argue that the plaintiff contributed to the cause of the injury through his own negligence, the appellate court permitted partial summary judgment on this issue.

If you or someone you love has been injured on a construction site due to the negligence of an employer, call the New York Labor Law attorneys at Gallivan & Gallivan today to discuss your potential claim.

April 7, 2015

Appellate Court Holds School Not Liable for Snowy Slip-and-Fall

The Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department reversed an order by the Supreme Court of Erie County that denied a school's motion for summary judgment in a slip-and-fall case. Gilbert & Gilbert v. Tonawanda City School District and Mullen Elementary School, 1274 CA 14-01026 (Jan. 2, 2015)

snowy steps.jpgMidday on January 21, 2011, the plaintiff was at the school owned by the defendant. When exiting a door and walking down a flight of icy outdoor stairs, the plaintiff slipped, fell, and injured herself. She filed suit against the school district, alleging the school was negligent in failing to clear the stairs of snow and ice. The defendant filed a motion for summary judgment, arguing that the school did not have a duty to clear the stairway at the time of the fall because of an ongoing snowstorm.

The lower court held an evidentiary hearing on the motion. At the hearing, a meteorologist testified for the defendant. This meteorologist testified that a snowstorm began the evening of January 20, 2011 and lasted through the evening of January 21, 2011. Thus, the fall occurred during the middle of the snowstorm. In addition, two teachers testified for the defendant. The two teachers testified that a snowstorm was raging at the time of the fall. The teachers remembered icy conditions, wind whipping snow around, and extremely cold temperatures at the time of the fall. After the hearing, the lower court denied the defendant's motion for summary judgment.

A motion for summary judgment will be properly granted when there is no material issue of triable fact for the court to consider. This means that there is no issue in dispute or in contention that the court needs to decide. If there is an issue in dispute, the proper way to decide it is through a trial, not a motion for summary judgment. However, motions for summary judgment are available for both plaintiffs and defendants to use to reduce costs, increase efficiency, and reduce burdens on the court regarding litigating undisputed issues.

One unique facet of motions for summary judgment is that the court is allowed to consider evidence outside of the complaint itself. This can come in the form of evidence, affidavits, or additional pleadings provided by the parties, or the court can hold an evidentiary hearing to gain more insight into the issue, which is what the trial court opted to do in this case.

The appellate court held that the lower court erred in denying to dismiss the plaintiff's case. The appellate court held that the testimony and evidence presented by the defendant at the evidentiary hearing was sufficient to prove that a snowstorm was in fact occurring at the time of the accident. New York law does not require a business or homeowner to remove snow or ice "until a reasonable time has elapsed after cessation of the storm." Individuals are not required to immediately begin clearing sidewalks or stairs once a lull or break in the storm occurs. Rather, they may wait a reasonable amount of time after the storm fully ends. Thus, the appellate court held that the defendant did not have a duty to begin clearing the stairway at the time of the fall as the storm was ongoing at that point.

In addition, the appellate court held that there was no triable or disputed issue and therefore granted summary judgment to the defendant. The plaintiff argued that there was a triable issue of fact regarding whether the snowy or icy conditions on the stairs existed prior to the storm and whether the school was on notice of this pre-existing condition. However, the appellate court held that the plaintiff had not properly raised this in her complaint or at the hearing and that the plaintiff had not provided evidence that the school had any notice of a pre-existing condition. As such, the lower court's order was reversed, and the case was dismissed.

If you or a loved one was injured during a slip-and-fall accident, please contact the New York personal injury lawyers at Gallivan & Gallivan today to discuss your potential claim.

April 7, 2015

Hospital Patient Denied Punitive Damages in Shared Needle Case

The Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department has modified an order issued by the Supreme Court of Cattaraugus County that denied a hospital's motion to dismiss the plaintiff's complaint. Beville v. Olean General Hospital and Upper Allegheny Health Systems, Inc., 1460 CA 14-00944

syringe1.jpgIn 2011, hospital staff administered several insulin injections to the plaintiff during a stay at the defendant's hospital. Several years later, the plaintiff received a letter from the hospital stating that the hospital had discovered that one or some of the needles used to inject insulin into the plaintiff may have been shared with multiple patients. In its letter, the hospital offered free testing for hepatitis B, hepatitis C, and HIV.

Distraught by this revelation, the plaintiff filed suit in Cattaraugus County for negligence and emotional distress. In her complaint, the plaintiff argued that the hospital was negligent by allowing insulin pens to be used on multiple patients and the fear of contracting a deadly blood-borne virus caused emotional distress. The plaintiff also sought punitive damages against the hospital.

The hospital filed a motion to dismiss the plaintiff's entire complaint under CPLR 3211(a)(7). The lower court wholly denied this motion. CPLR 3211 is the New York civil procedure rule regarding motions to dismiss. There are several grounds on which a defendant may seek to dismiss a case under CPLR 3211, such as a lack of documentary evidence. The most common ground for a motion to dismiss, however, is CPLR 3211(a)(7)'s "failure to state a claim upon which relief may be granted." The court must view the evidence in the light most favorable to the plaintiff when deciding a motion to dismiss. The court is not to decide the motion on whether the plaintiff's complaint has structural defects but rather whether a claim actually exists. In its motion to dismiss, the defense may articulate defects in the complaint. In the event that the complaint is unclear or fails to include a technical pleading requirement, the proper remedy is to provide the plaintiff with an opportunity to amend the complaint, not dismiss the complaint.

Here, the appellate court held that the lower court properly denied the hospital's motion to dismiss the entire complaint for failure to state a claim. The appellate court held that the plaintiff successfully alleged both negligence and negligent infliction of emotional distress on behalf of the hospital. However, the appellate court did dismiss the plaintiff's claim for punitive damages. Punitive damages are fines or fees assessed against a defendant as punishment for its wrongdoing. Punitive damages can only be assessed in cases involving wrongdoing so severe that it was only caused by wanton dishonesty, criminal indifference, or a lapse in morality. The appellate court in this case found that the complaint did not provide any evidence that the hospital acted in bad faith regarding the sharing of insulin needles and thus dismissed the claim for punitive damages. The appellate court modified the lower court's order by granting the hospital's motion to dismiss with regards to the punitive damages claim only.

Shared needles are surprisingly common at hospitals. Due to health code regulations and the risk of transmitting an infectious or blood-borne virus between patients, hospitals are prohibited from sharing or reusing needles. While the hospital in this case did the right thing by informing the plaintiff of the issue, the news came two years after the actual mix-up. If the plaintiff had contracted a deadly virus due to the mix-up, this delay in informing the plaintiff could have cost her valuable treatment time if undetected.

If you or a loved one has been the victim of shared needles or other contamination at a hospital, you may have a claim for negligence and other injuries. Contact the experienced medical malpractice attorneys at Gallivan & Gallivan today to discuss your potential claim.

March 11, 2015

The Latest on the Joan Rivers Personal Injury Lawsuit

As the reader is no doubt aware, on September 4th of this past year legendary comedienne and red carpet host Joan Rivers tragically died during a medical procedure. She was 81 years old and reportedly in excellent health, making the death a shock and surprise to both her fans and her loved ones. Since then, the medical procedure and the professional staff who performed it have been under the legal microscope, as questions have been raised about medical negligence leading to Ms. River's untimely demise.

As a brief review (we've covered medical malpractice lawsuits on this blog before), medical malpractice is essentially simply negligence committed by a medical professional. There are some wrinkles not found in non-medical negligence cases, most notably how to determine the standard of care owed to a patient. The clearest way to express this is to understand that not every negative medical outcome, up to and including death, is malpractice. Sometimes, procedures come with inherent risks, and a patient who understands those risks and chooses to undergo the procedure anyway in effect assumes said risks. As such, the issue in the Joan Rivers case, like many medical malpractice cases, is: would we expect death to be a significant and substantial risk of the procedure Ms. Rivers underwent?

forceps.jpgA wrongful death lawsuit was filed in late January, and the complaint and supporting documentation provided some previously unknown details. The medical details are highly technical, as you would imagine, so it may help to simplify a bit. Ms. Rivers signed forms consenting to a few procedures, which were intended to assist in diagnosing her stomach reflux issues and sudden voice changes: an upper endoscopy, a possible (not unless necessary) biopsy, and a possible dilation of the esophagus. The lawsuit claims first that these were not the only procedures performed on Ms. Rivers. She could not have given consent to the other procedures, ergo, she could not have assumed the risk of said procedures. In medical malpractice law, this is known as the doctrine of informed consent, and you can read the New York statute addressing the doctrine here.

But the lawsuit actually goes further. Not only were additional procedures performed (for what are rumored to be extremely suspect reasons involving medical curiosity and publicity), but one of the doctors performing them is claimed not to have had privileges to perform surgery at the medical center where Ms. Rivers was being treated. As a result, this doctor left the room "when Ms. Rivers started to deteriorate" because she knew she was not supposed to be practicing surgery there in the first place. If true, this is a stunning breach of duty and care and displays a shocking lack of proper judgment from a licensed medical professional.

The lawsuit also alleges what we can think of as more garden-variety negligence: the doctors simply did not do what we would expect doctors of their training and experience to do in this situation, and severe injury (in this case, death) resulted from that failure. I encourage you to read this Washington Post article to see, step by step, how a fairly routine surgical procedure can become a tragedy, explained in easy to follow terms.

Taken as a whole, the suit is comprehensive, legally compelling, and devastating to the professionals involved. Claimed damages are in the millions, which does not seem unreasonable considering how Ms. Rivers up to the day of her death was considered an unstoppable workhorse. Bookmark our personal injury blog to check back for the latest news on the lawsuit, which may wind up heading to trial.

March 6, 2015

The Various Forms of Car Accident Liability in New York State

This post will outline a bit of the actual legal reasoning and process behind car accident personal injury lawsuits, using some recent examples of media-reported accidents as case studies. Most people seem to understand that when someone who is driving negligently injures the person or property of another, they should pay (or their insurance company should). But this seemingly simple proposition actually has a great deal of law, worked out through both courts and legislatures over years, behind it.

crash3.jpgConsider this recent example, from the New York Post: a driver fleeing police during a high-speed chase slams into a pedestrian and nearly kills him. Most basically, the driver is almost certainly liable to the pedestrian under a theory of negligence. Why? Because we know two things: the driver was speeding, and the driver was fleeing from police. Both of these acts represent a breach in the so-called "duty of care" a vehicle driver owes a pedestrian. Think of the legal duty of care this way: a driver acting in concert with such a duty would be driving as a reasonable person would under the circumstances: at or under the speed limit, both hands on the wheel, paying close and careful attention to his or her surroundings and the police cruiser attempting to force the driver to stop. A breach of this duty - a failure to behave in this way - that leads to an injury, causes liability.

(This is a topic for another post, but it is not unheard of for police departments to get sued for negligently engaging in a vehicle chase. There certainly can exist conditions where an innocent bystander is injured because police officers refused to give up even when a chase became exceedingly dangerous to pedestrians.)

In a more tragic case, again from the Post, a Queens teenager swerved into oncoming traffic, resulting in an accident that killed his co-passenger. According to the Post, police believe speeding was a factor. While the negligence is not quite as clear cut in this example as in the previous, I bring this case up to highlight the fact that pedestrians are, from the point of view of the law, not the only possible plaintiff/victim's in a personal injury suit. Willingly entering a vehicle does not mean automatically accepting the risk of injury from the driver's negligence. Lawsuits like this most often come about from drunk driving accidents - a drunk driver is both criminally and civilly responsible for hurting his fellow passengers, and this is the case even if those passengers entered the car with the full knowledge of his drunkenness. It is not an "excuse" that the passenger chose to ride along. Negligence is negligence, and harm remains harm.

In future posts, we'll use other recent examples of motor vehicle negligence to highlight a few other ways the law seeks to reimburse innocent victims civilly, and we'll particularly take a look at the so-called "No Fault Law" that stands so prominently in the minds of many personal injury attorneys in this state. As always, if you think these factual scenarios could apply to you, contact our firm to sort through your options. Even a consultation can bring some clarity to a confusing legal scenario.

February 4, 2015

Proposed Budget Would End Physician Profile Website

Governor Andrew Cuomo's proposed budget would eliminate nydoctorprofile.com, a state-run website that provides information to current and prospective patients about New York doctors' education, areas of practice, professional activities, and legal action taken against them. According to the governor's proposed budget, the site is duplicative, as much of the information on it can be found elsewhere on the internet.The key difference is that this site is operated by the NY Department of Health, whereas many other sites are run privately. The DOH site is also free, while some other sites are pay per usage.

The doctor profile site provides numerous valuable research tools for individuals seeking a new health care provider. The categories are broken into subcategories. For instance, by searching a particular physician's "Practice Info" tab, users can glean information regarding the doctor's specialty, office locations, insurances accepted, and hospital privileges. Often equally important to healthcare consumers is information regarding legal actions taken against the physician. Under this category, the site lists judgments and arbitration awards, settlements, and malpractice history, among other pieces of information. Whether searching for a healthcare provider for oneself, or one's children, or even one's elderly parents, it is important to know the doctor's litigation history. A single incident in his or her malpractice history could be a single event in an otherwise unblemished career. A long list of of offenses might signal a physician you would prefer to avoid. In either scenario, the insight gained from the DOH site provides a basis for making an informed decision. And while, even if the site is terminated with the new budget, such information would still be available elsewhere, it would not necessarily all be gathered in one place, nor would it necessarily have the Department of Health seal.

The proposed shuttering of the site has spawned harsh criticism from lawmakers and advocacy groups. As quoted in James Mulder's post on syracuse.com (link below), State Assemblyman Richard Gottfried, the chair of the Assembly's Health Committee stated "[I]t concerns me that we would shut down the only site with the official stamp of the health department. As we move towards more transparency and public access to healthcare information, this proposal takes us in the opposite direction."

The doctor profile costs the state approximately 1.2 million dollars per year. Governor Cuomo's proposed budget is 142 billion dollars.

More information on this proposal can be found here:

Cuomo wants to pull plug on free website that reveals malpractice info about docs, syracuse.com, James T. Mulder, January 30, 2015