New York Injury Lawyers Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Docket #1

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

Docket #2

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

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

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