New York Injury Lawyers Blog

Maurice Smith of Patchogue, Long Island faces up to eight years behind bars following a guilty plea to vehicular manslaughter, among other charges. Smith was speeding on Route 78 in Bedminster, NJ last June when he collided with Paul Shelley, operating a motorcycle of his own. Shelley suffered major leg injuries. His passenger on the bike, Nicole Widener, was ejected and killed by a passing vehicle.

Sentencing for Smith is scheduled for March 8th. He could face a maximum sentence of eight years jail time. A conviction in criminal proceedings will, in most instances, force the insurance carrier for the guilty party to seriously consider settlement. Although many insurance policies have exclusions for criminal acts, the criminal conviction makes it apparent that their insured was at fault.

A traffic accident involving a Brooklyn school bus and another vehicle left seven injured on Monday. Among those hurt in the crash were three children. No serious injuries were reported among the three children.

Although, according to witnesses, the other driver ran a stop sign, police have not, as yet, filed criminal charges in the accident. All involved in the accident are expected to make full recoveries.

Website Resource: 3 Children Among 7 Injured In Brooklyn School Bus Crash, CBS New York, January 4, 2011

Laurence Renard was struck and killed by a dump truck on Manhattan's Upper East Side last night as she crossed First Avenue. The accident occurred just before 6:00 between 90th and 91st Streets. Renard was crossing First Avenue when a carting truck driven by Diego Tappia-Ulloa turned left from 90th Street and struck her while heading north on First Ave.

Renard was pronounced dead at the scene. Officers arrested Tappia-Ulloa for driving without a valid license. Police are still investigating Tappia-Ulloa.

Website Resource: French fashion stylist Laurence Renard killed in horrific East Side rush-hour accident
New York Daily News, Meredith Bennett-Smith and James Fanelli, January 25, 2011

After the recent tragic events in Arizona, and as U.S. Representative Gabrielle Giffords' continues on her road to recovery, the media and the general public have an increased focus on brain injuries and medical advances that can lead to recovery from their neurological trauma. As accused gunman Jared Loughner awaits the next phase of his trial after pleading "not guilty", Giffords and her team of doctors continue to make strides in her rehabilitation process. Although her progress thus far has been remarkable, Giffords faces a long road ahead in her recovery.

On the other side of the country in New York, Emilie Gossiaux is fighting her own battle with a serious brain injury. Left blinded after being hit by a truck this past October, Gossiaux also suffered a stroke and brain trauma subsequent to the accident. For Gossiaux, as with many victims of brain trauma, the return to normalcy began with attempting to return to everyday activities. As motor function improves, a care plan generally progresses to more complex tasks, such as occupational and speech therapy. Gossiaux faces the additional challenge of coping with the loss of her eyesight, an obstacle that exacerbates the difficulty associated with recuperating from expected injuries from brain trauma, such as reduced cognition and memory loss. Despite the inherent hurdles of her recovery, Gossiaux remains positive that she will return to lead a full life.

Support from family and friends, if not a tangible factor hastening recovery, has certainly provided comfort and peace of mind to both Gossiaux and Giffords. After Giffords was able to massage her husband Mark Kelly's neck and shoulders last week, Kelly told Diane Sawyer, "It's so typical...that no matter how bad the situation might be for her...she's looking out for other people." Kelly's presence at Giffords' bedside, much like the presence of family and friends at the side of Gossiaux, display at the very least inspiration to the victims to keep working and striving through the recovery process.

Website Resource: Inside a brain injury recovery, CNN, Elizabeth Landau, January 24, 2011.

A New York Appellate Court recently reversed a trial level decision granting summary judgment in favor of the defendant in the 2009 case of Esther Jacobs v. Hector D Rolen. Plaintiff, who was involved in a car accident in New York, currently experiences limited range of motion in her lumbar spine, but full range of motion everywhere else. Defendant's expert, a radiologist, argued that the reduced range of motion experienced by the plaintiff was due to degenerative disc disease rather than causally related to the accident. Defendant also submitted an expert affidavit from an orthopedic surgeon who opined that although the plaintiff still experenced a reduction in range of motion 2 1/2 years after her automobile accident, these injuries were not "serious" as a matter of law. According to Insurance Law Section 5102(d), "'Serious injury" is defined as a personal injury which results in, among other things, "permanent consequential limitation of use of a body organ or member" and/or "significant limitation of use of a body function or system." In the lower court, a Bronx County Supreme Court Justice ruled that the defendant had met its burden of proof for summary judgment and granted the motion.

On appeal, the First Department held that plaintiff successfully raised issues of fact as to whether the injuries sustained constituted a "serious injury." Plaintiff's expert, her treating physician, contended that plaintff's injuries were, in fact, causally related to the accident. He supported his position by relying on "objective, quantitative tests" that showed significant range of motion limitations directly after the accident, as well as three years later. Plaintiff was also able to sufficiently explain a gap in treatment by stating that she continued her physical therapy until her no-fault benefits ceased, at which point she could no longer afford to pay for her treatment.

This is a familiar fact pattern for attorneys that handle car accident cases in New York. This is commonly referred to as a "threshold case", where it is questionable whether the injuries sustained will constitute a "serious injury" under the Insurance Law. Appellate decisions in this area of law are very fact specific and as illustrated here, it is important for plaintiffs to submit an affidavit from a physician whose opinions are based on "objective, quantitative tests" such as a Electromyography (EMG).

Jacobs v. Rolen, 76 AD3d 905 (NY 2010)