New York Injury Lawyers Blog

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

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

Read the Court's full decision here.

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

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

Website Resource: NY1

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

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

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

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

Website Resource: New York Law Journal

In a recent motor vehicle accident case before the NYS Appellate Division, Second Department, named Vaz v. New York City Transit Authority, the Court ordered a new trial on liability holding that the trial court improperly permitted the Defendant to introduce previously undisclosed evidence. During cross-examination of the Plaintiff, the trial court allowed the Defendant to introduce into evidence a "Motor Vehicle Accident Form" (an MV104 form), prepared by the Plaintiff at her physician's office shortly after the accident. The purpose was to impeach the Plaintiff's credibility as to her version of how the car accident occurred.

The Appellate Division ruled that the Supreme Court improperly permitted the Defendant to introduce the MV104 into evidence since the Defendant obtained the document prior to the commencement of the action and failed to disclose it to Plaintiff during discovery. The Court reasoned that "contrary to the Supreme Court's conclusion, the Defendant was required to disclose the MVA form, which constituted the Plaintiff's 'own statement' (CPLR 3101[e]), upon the Plaintiff's demand prior to trial (see CPLR 3101[a], [e])." Instead, Defendant withheld the document until the middle of the trial; and could not offer an excuse for its failure to produce the document earlier. Because the central issue in the trial was the respective parties' credibility, this error could not be considered harmless. As such, the Second Department reversed determining that the Supreme Court should have granted that branch of the Plaintiff's motion to set aside the verdict and to commence a new trial on the issue of liability.

Vaz v New York City Tr. Auth., 85 AD3d 902 (2d Dept. 2011).

A Brooklyn hit and run accident left a father and his year old daughter injured in Bedford-Stuyvesant on Saturday afternoon. The father was attending to his daughter in her stroller when the livery cab was struck by another vehicle, causing it to jump the curb, crushing the pair against a fence outside of a convenience store. The driver of the cab fled the scene on foot, leaving his mangled car behind. The unnamed driver of the second vehicle stayed at the scene of the accident.

Both father and daughter were expected to recover. The livery driver was not immediately identifiable, however efforts were being made to determine his identity through the livery company.

In addition to the apparent liability for causing the accident, the livery cab driver will likely face criminal and/or traffic charges stemming from his decision to leave the scene of the accident. Although the injuries to the father and infant are unclear, a personal injury lawsuit or claim will follow. In such instances, it is important for the injured parties, their attorneys and or investigators to gather all pertinent information including photographs of the scene, police reports, relevant medical records, insurance information for the livery cab, etc. NYC cabs are required to carry a minimum of $100,000 in liability insurance coverage. Given the factual scenario here, this amount of insurance would likely fall short of fair compensation for the family.

An off-duty New York City Firefighter is facing multiple charges, including DWI and leaving the scene of an accident, after crashing into another car in the Bronx (NYC) on Thursday night. The firefighter was apprehended by police after leaving the accident, which occured on the Grand Concourse at approximately 10:30 pm. The motorists in the other vehicle reported minor back and neck injuries. The firefighter refused a breathalyzer upon his arrest.

Website Resource: Off-Duty Firefighter Charged With DWI After Accident

NY1, July 16, 2011

LA Lakers star forward, Lamar Odom, was a passenger in a car that struck and seriously injured a motorcyclist and a pedestrian in his hometown of Queens, New York, on Thursday.

A publicist for Odom's wife, Khloe Kardashian, told the New York Post that Kardashian was not with her husband a the time of the motor vehicle accident. A source close to Odom also told the Post that he was not physically injured in the accident, but was "shaken up."

The New York Police Department is reportedly investigating the accident. If you or a loved one has been injured in a motor vehicle accident, call the New York Accident attorneys at Gallivan & Gallivan.

Website Resource:

Report: Lamar Odom passenger in crash, Dave McMenamin and Ramona Shelburne, espn.com.

New York State Governor, Andrew Cuomo, signed a bill into law this week that allows police officers to stop and ticket drivers whom they see texting while driving. Texting while driving had already been a moving violation, however, prior to the new bill, police officers were only able to ticket the offending motorist if the officer had pulled the driver over for another reason. Drivers guilty of the violation of texting while driving can receive up to a $150 fine.

In March of last year, the federal government issued a ban on commercial truck drivers texting while driving. The fact that both the federal and state governments have recognized the inherent danger of texting while driving should make for safer roads for drivers and pedestrians alike.

On June 25th of last year, New York Giants cornerback Chad Jones was involved in a car accident in New Orleans, breaking multiple bones in his leg and foot. The initial charge by the New Orleans Police Department was careless operation of a vehicle, but alcohol was not a factor.

After emergency surgery, doctors were able to save the young cornerback's leg. A lengthy rehabilitation followed the surgery with Jones progressing significantly as the months passed. Jones is now working toward a return to the Giants for the 2012 season. His perseverence throughout the first year of his recovery bodes well for his continued recuperation and return to football.

Last Thursday, a 20 year old Nazareth College student pleaded guilty to vehicular manslaughter after a January crash left a passenger in her car, Gabrielle Acevedo of Portchester, NY fatally injured. Although the students were driving in inclement weather on the night of the crash, the driver also admitted to drinking prior to the accident. Additional charges of vehicular assault and driving while intoxicated were dropped as terms of the plea deal accepted by the driver.

The defendant, a resident of Oswego near Syracuse, reportedly lost control on a snow-covered road and hit another car. The other motorist, Renee Broderick, survived serious injuries.

Website Resource: NY student to get 6-month sentence for fatal crash

AP, July 8, 2011

Seven pedestrians are recovering from injuries after they were struck by a car while exiting a central New York park following a fireworks show.

The Cayuga County Sheriff's Office reported that the pedestrian accident occurred at approximately 10:15 p.m. Sunday as traffic was leaving Emerson Park in Owasco. Deputies say a pickup truck driven by 19-year-old Adam Hurd of Auburn struck a Volvo driven by 19-year-old Tyrel Cochran of Skaneateles (skan-ee-AT-less), pushing the car into the seven unsuspecting pedestrians.

The injured individuals were taken to Auburn Memorial or University Hospital in Syracuse with back and leg injuries. Police say none of the injuries appeared to be life-threatening. The sheriff's office says the investigation is continuing and tickets for traffic violations may be issued.

The New York Pedestrian Accident Attorneys at Gallivan & Gallivan provide aggressive representation for those injured in car accidents throughout the State. Please see our website for recent results in accident cases.

Website Resource:

7 pedestrians struck by car after fireworks show, Wall Street Journal, Associated Press, July 4, 2011.

Debra Whiting, the co-owner of an upstate New York winery, has died after a car accident on the New York State Thruway near Montezuma, NY. Her husband was reportedly driving the vehicle at the time of the accident. State Troopers reported that 47-year-old David Whiting of Hector was moving into the passing lane when his car collided with another car, ran off the highway, rolled over and hit a tree in the Cayuga County at approximately 8:15 p.m. on Thursday.

Debra Whiting, fifty-two years old, was flown to a local hospital, where she later died. Her husband was treated for cuts. The other car also ran off the road and overturned. That driver was not reported injured, but his passenger was also treated for cuts.

Mrs. Whiting had opened the Red Newt Winery and Bistro in 1998. She was a chef recently filmed for an episode of the reality show "Chopped."

In the event that this car accident results in a lawsuit, the attorney for the Whitings will likely have to contend with the defendant's claims that it was Mr. Whiting's own negligence that caused the accident.

Website Resource:

Crash in upstate NY leaves Finger Lakes chef dead, Wall Street Journal, Associated Press, July 1, 2011.

Port Jefferson Station resident Francisco Cardozo was struck and killed by an oncoming vehicle in Huntington Station early Friday morning. Police have determined that Cardozo was most likely walking in traffic when he was hit by the vehicle. The driver of the vehicle walked away unscathed, although police took custody of his car as part of an ongoing investigation.

This incident while undoubtedly tragic may not result in a successful personal injury lawsuit against the driver of the vehicle. Solely because this man was struck by a vehicle does not entitle his family to recover damages. Many questions must be answered including whether he was walking in the crosswalk, whether the driver of the vehicle violated any traffic laws, etc. The defendant in any potential case will seek to place responsibility on the accident with the injured party. Mr. Cardozo's family would need to prove that the accident was caused by the negligence of the driver in order to prevail.

Additional questions that a personal injury attorney would need answered during their investigation include whether he was working at the time of his death, whether he was supporting any family members at the time of his death, whether he died instantaneously or after suffering from his injuries for a period of time before dying. The answers to all of these questions and many more will dictate whether a successful personal injury / wrongful death case can be proven.

Website Resource: Pedestrian killed in NY suburb AP

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

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.