Section 1192(2) of the New York Vehicle and Traffic Law defines driving while intoxicated as operating a motor vehicle while having a blood alcohol content of .08 or greater. Further, Section 125.12(1) defines vehicular manslaughter in the second degree as when a person "causes the death of another person, and...operates a vehicle in violation of subdivision...two...of section eleven hundred ninety-two of the vehicle and traffic law...and as a result of such intoxication...operates such motor vehicle...in a manner that causes the death of such other person."

Tolar was reportedly driving a Lincoln Navigator eastbound on Montauk Highway in Brookhaven when his vehicle crossed over a divider on Dec. 17, 2010 and struck a vehicle driven by Scott Albrecht of Patchogue. Mr. Albrecht was pronounced dead at the scene.

Resource: Long Island Press, Timothy Bolger, April 24, 2012

New York Vehicle and Traffic law states that, with exceptions, "no person shall operate a motor vehicle while using any portable electronic device while the vehicle is in motion." The growing ubiquity of mobile devices led to the enactment of this law. Safety while driving should always be a priority, and avoiding mobile device usage while driving a vehicle is an important aspect of maintaining safe roadways.

Source: NY1, State Police Begin Distracted Driving Countdown, April 23, 2012.

An investigation into the events leading up to the crane's collapse is ongoing. It remains to be seen whether civil or criminal actions will be pursued in the wake of this tragic accident. For more information on this story, see Katherine Creag's article on msnbc.

As a matter of law in a case involving a slip and fall, if moving for summary judgment, the defendant has the initial burden of showing that it did not create the condition, nor did it have actual or constructive notice of the condition. In reversing the Trial Court's ruling, the Appellate Division noted that the City failed to meet its initial burden with respect to creation and notice.

The Court explained that given the location of the accident site, the defendant failed to establish, prima facie, that the greasy substance was not created by its employees. They further reasoned that reversal was appropriate because the defendant also failed to submit any evidence as to when the subject staircase was last cleaned or inspected, thereby failing to establish they did not have constructive notice of the alleged hazardous condition. Since the defendant failed to establish its initial burden for summary judgment, plaintiff's papers were not considered.

Amendola v. City of NY, 2011 NY Slip Op 08104 (2d Dept. 2011).

Institutional problems do not mitigate the need to maintain an accepted standard of care within a hospital. Even considering monetary and administrative concerns within the facility, it still owes a duty of care to its residents. Although many if not most of these lawsuits are still pending, with no liability yet found, the sheer volume of suits pending against Brookdale is an indicator that too many patients feel that they received substandard care while under the supervision of the facility.

Website Resource: 'Alarming' number of lawsuits against Brookdale

NY Daily News, Conor Febos; Lore Croghan, March 1, 2012

With respect to CVS, the Court stated that CVS failed to establish that it owed no duty to the plaintiff. Citing a common law duty to repair defective conditions, the Court reversed summary judgment in favor of CVS, asserting that it failed to establish that it did not have actual or constructive knowledge of the condition. Because CVS failed to meet this initial burden, the court ruled that summary judgment should have been denied as a matter of law.

Sarisohn v 341 Commack Rd., Inc., 2011 NY Slip Op 08579 [89 AD3d 1007] (2d Dept. 2011).

In the first instance, partial summary judgment was granted to the plaintiff after he fell a floor while repairing an elevator. The latch worked improperly, causing the plaintiff to fall while repairing the elevator. The Court ruled that the latch was considered a "device" under the wording of Labor Law Section 240(1), which states that "[A]ll contractors and owners and their agents...shall furnish or erect...devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Because the Court deemed the latch a device, the plaintiff was entitled to recover under this section of the Labor Law.

In the second case, an inspector was injured while installing new subway tracks. The Court ruled that the defendant failed to conduct continuing inspections to ensure that the work area was maintained in a safe manner. As Section 241(6) of the Labor Law mandates, "[A]ll areas in which construction, excavation, or demolition work is being performed shall...provide reasonable and adequate protection and safety to the persons employed therein..."

Important to note in these Labor Law scenarios is that these are strict liability provisions. In other words, actions by the injured party that, under normal circumstances would render him or her comparatively liable, do not apply. It is the duty of the employer to ensure that its employees are working in safe environments.

Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904 (1st Dept. 2011).

Medina v City of New York, 87 AD3d 907 (1st Dept. 2011).

The other attacker fled the scene but was arrested later. Any charges were not reported at the time of this entry. The seventeen year old died from the wound suffered by the shot. The off-duty officer was taken to the hospital for trauma and to treat the facial injuries incurred by the cane.

Website Resource: NY1, Kristen Shaughnessy, January 30, 2012

After Grand Jury testimony was obtained, the charges were reduced to four Misdemeanors and one violation. Our client was charged with the following:

Assault in the third degree (PL 120.00);
Menacing in the second degree (PL 120.14);
Criminal Possession of a Weapon in the fourth degree (PL 265.01 - 2 counts); and
Harassment in the second degree (PL 240.26).

Fully prepared for trial and pursuing a justification defense (self-defense), on the first day of jury selection, all charges were dismissed.

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.

The City, along with co-defendants the NYC Department of Health and Mental Hygeine, NYC Department of Education, and the Board of Ed for NYC, moved to dismiss the Complaint pursuant to New York CPLR Section 3211(a)(7), stating that the plaintiffs' pleading failed to state a cause of action. In finding for the defendants and dismissing the claim, the court stated that "[T]he city's response to a possible outbreak of a communicable disease is a discretionary action." Further, citing McLean v. City of New York, 12 NY3d 194, 203 [2009], a government action may not be the basis for liability if such action is discretionary. Based on this reasoning, the court dismissed the wrongful death complaint against the City.

Website Resource: New York Law Journal

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

Under New York Criminal Procedure Law section 170.30(1)(e), a criminal court may dismiss charges when a defendant is denied his or her right to a speedy trial. Further, under section 30.30(1)(a), a motion made pursuant to 170.30(1)(e) must be granted when the prosecution is not ready for trial within six months of the commencement of the criminal action, if at least one of the charges against the defendant is a felony. Article 30 outlines an "exceptional circumstances" exemption from this speedy trial requirement, however the court in this case ruled that the officers' respective wrist injuries did not meet the standard for this exemption. Their wrist injuries did not affect their ability to testify. Additionally, the People failed to produce relevant medical documents to support the delay. As such the court ordered a recalculation of the speedy trial time.

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

The plaintiff claimed negligence on the part of the bus driver, and vicarious liability on the parts of the MTA, New York City Transit Authority, and MTA Bus Company. "Vicarious liability" allows for an employer to be held liable for the actions of his or her employees in certain situations. Generally, the employee must be performing the standard operations of his or her job description at the time the offense occurs for the employer to be held liable. In the case at hand, the plaintiff asserted vicarious liability because the driver negligently performed an everyday aspect of his job. The MTA employs him to drive the bus with reasonable care. and in this instance, he performed this duty negligently, so his employers could be found responsible for his negligence.

The breakdown of damages is as follows:

• $483,907.00: Past medical expenses

• $4,832,142.00: Future medical expenses

• $4,000,000.00: Past pain and suffering

• $11,000,000.00: Future pain and suffering

The defense has appealed both the summary judgment finding and the amount of the damages. The plaintiff has also moved to increase the award for past medical expenses. The law firm, Lipsig, Shapey, Manus & Moverman, PC, represented the plaintiff.