New York Injury Lawyers Blog

Last week, Queens County Supreme Court ordered that the complaint against the City of New York be dropped in a wrongful death suit of a Queens Assistant Principal who died of swine flu in 2009. The suit, filed by the decedent's family, claimed that the city failed to warn the decedent that he had been in contact with students who carried the swine flu virus, that the city did not act quickly to stop the spread of the virus, and failed to disseminate information about the virus.

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

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

The New York State Appellate Division, 4th Department recently held that a jury award of $500,000 for loss of consortium constituted a material deviation from reasonable compensation. The underlying basis for the claim occurred while the plaintiff-decedent was being treated for respiratory issues in an upstate hospital. Several unsuccessful attempts to intubate resulted in a punctured esophagus.

The decedent died from unrelated causes, however, she and her husband had initiated a medical malpractice suit prior to the decedent's death. A jury awarded $500,000 for pain and suffering and $500,000 for loss of consortium. A claim for loss of consortium arises when the injured party can no longer provide services customary in a marital relationship (ie. companionship, love affection, sexual relations),

The court ruled that the maximum amount of reasonable compensation for loss of consortium was $200,000, and as such granted a new trial for damages for loss of consortium only. In making this determination, the Appellate Court cited CPLR section 5501(c), which states, in relevant part, that "the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation." Because the Appellate Division in this case deemed that the $500,000 award for loss of consortium deviated materially from what would be reasonable compensation, it was within its powers to reverse the award and grant a new trial. If plaintiffs stipulate to reduce the award to the $200,000 that the court ruled reasonable compensation, a new trial would be avoided and the judgment modified for the specific damages.

Website Resource: LexisNexis

On October 30, 2010, a 23-year-old Westchester County, NY man was one of two people killed by an alleged drunk driver in Tampa, Fla. Douglas Kozar was reportedly crossing the Harbor Island Bridge with two co-workers around 2 a.m. when Matthew Moye, a 34-year-old dentist, struck them with his 2011 Cadillac.

Moye has been charged with two counts of vehicular homicide, two counts of driving under the influence manslaughter and DUI with injury.

Family members and close friends were shaken by Mr. Kozar's death. Kozar's father, Russell, explained, "We are just devastated. This is a loss we will never get over."

Kozar's wake will be at the Whalen & Ball Funeral Home in Yonkers on Wednesday from 2 to 9 p.m. His funeral will be held at St. Matthew's Catholic Church in Hastings-on-Hudson on Thursday at 10 a.m. and he will be buried at Mount Hope Cemetery in Hastings-on-Hudson.

The family has asked that donations be made to Mothers Against Drunk Driving.

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Cortlandt man, 23, killed by alleged drunken driver in Fla., Journal News, Danielle DeSouza, November 1, 2010.

An elderly driver struck and killed a pedestrian near Yonkers Avenue in Yonkers, NY last week. The accident occurred at approximately 7 p.m. on October 21, 2010 at the intersection of Yonkers Avenue and St. John's Avenue. Yonkers Avenue was closed for a few hours while police investigated.

The pedestrian accident resulted in the death of a middle-aged man who was engaged to be married. His fiance appeared on News 12 calling for the implementation of an age limit on drivers in New York.

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Man Struck, Killed By Car In Yonkers, Journal News, Danielle De Souza and Will David, October 21, 2010.

Two pedestrians were killed in car accidents in the New York area over the weekend.

NYPD detectives are investigating whether a New York City fireman was driving a sport utility vehicle that struck and killed a 25-year-old pedestrian in Brooklyn (NYC) Sunday morning of October 10, 2010. Manuel Tzajguachiac was struck by a BMW SUV as he walked near the corner of 65th Street and 20th Avenue in Bensonhurst, Brooklyn. He was reportedly transported to Lutheran Hospital, where he was pronounced dead.

The SUV was later found abandoned on East 9th Street in Midwood, Brooklyn. A source within the NYFD reported that Pat Quagliariello, 39 years old, walked into the 62nd Precinct at about 4:00 a.m. and identified himself as the owner of the vehicle and informed police he was retaining a lawyer. He was reportedly released as police continued to investigate the accident.

In the second accident, Dario Digiano, 21, of Belleville, N.J., was pronounced dead at Beth Israel Hospital after he was hit by a small delivery truck while walking on Morton Street near West Street in Lower Manhattan. Detectives were searching for the truck and its driver after the accident. No arrests have been made.

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Fireman Probed in Brooklyn Car Death, Wall Street Journal, Tamer El- Ghobashy, October 11, 2010.

Staten Island, New York: Two young men were died and four others were injured in a single-car crash on Staten Island last week. The driver and five passengers were traveling south on Arthur Kill Road in a blue Nissan Altima just before 1 a.m. when the vehicle reportedly swerved off the road and struck a wooden utility pole.

One of the six men, Jeff Capretta, 20, was pronounced dead at the scene. Another, Daniel Peluso, 19, was pronounced dead at Staten Island University Hospital South.

The four other men -- ages 19, 20, 21 and 23 -- were listed in stable condition at Staten Island University Hospital North.

The police said that it was unclear who had been driving. The cause of the accident remained under investigation at the time of this post, and no charges had been filed.

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Two Killed in Staten Island Car Crash, New York Times, August 29, 2010.

Former New York Yankee catcher and pinch-hitter, Jim Leyritz, has settled the combined personal injury and wrongful death lawsuit filed by a Florida family stemming from a December 2007 car accident. Leyritz was allegedly driving under the influence of alcohol when he struck Freida Ann Veich's vehicle. Ms. Veich was a mother of two.

As part of the settlement, Leyritz will reportedly pay the family $250,000 up front, as well as $1,000 a month for 100 months. Leyritz is still awaiting a criminal trial on charges of manslaughter.

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Former New York Yankee Jim Leyritz settles civil suit stemming from fatal 2007 car accident, Daily News, Christian Red, May 26, 2010.

A Brooklyn (NYC) cab driver was reportedly drunk when he struck and killed a pedestrian. The 36 year-old driver has been charged with DWI and Vehicular Homicide.

The victim, a 50 year-old male, was crossing W. 6th Street and Avenue O in Gravesend at approximately 6:45 pm on January 1, 2010. The driver reportedly had the green light. However, if it is proven that the driver was intoxicated at the time of the accident, he or his company could still be found civilly liable for the pedestrian's pain and suffering and wrongful death.

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Brooklyn cabby in 'DWI' kill Mows down man, NY Post, Christina Carrega and Time Perone, January 2, 2010.

The family of Anthony Leone, a 63 year-old retiree collecting disability benefits, recovered $2 million in a settlement of a Brooklyn (NYC) medical malpractice lawsuit against his doctor and a hospital. Anthony Leone died in June 2006, about 2.5 years after a New York Methodist Hospital radiologist detected a suspicious mass in an X-ray.

Leone and his doctor were never informed of the result, and Leone's cancer was not diagnosed until July 2005. The hospital blamed Leone's doctor, contending that the doctor was aware of the X-ray but ignored the test's films after a preliminary reading indicated no problem. A trial resulted in liability for both defendants and a verdict of $4,194,000, but the parties negotiated the post-trial settlement soon thereafter.

Resource:

Verdictsearch, March 11, 2010.

Amir Zeqiri, 17, a Central Islip, NY resident, drowned in a bizarre incident. The tragedy occurred when the teenage employee went behind the Smithtown, NY Dunkin' Donuts to empty the garbage and fell into the open cesspool. After not returning to work, Zeqiri's younger cousin when out to investigate and noticed the boy flailing around in 8 feet of filthy water. He ran for help. Upon returning the boy had slipped beneath the surface.

Amir Zeqiri was fished out the filthy cesspool and rushed to the nearest hospital where he later died.

Dunkin' Donuts and its employees expressed condolences for the boy's tragic death. The hole Zeqiri reportedly fell into was not covered with a manhole. A personal injury and/or wrongful death may be initiated against the entity charged with the duty of maintaining the premises.

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Teen dies after falling into open cesspool outside of Long Island Dunkin' Donuts, Daily News, Corky Siemaszko, March 1, 2010.

An SUV driven by a 72 year-old NYC churchgoer was involved in a car accident that killed one and injured four Sunday, March 8, 2010, in Brooklyn. The accident occurred in the Gravesend Section in a park by the AHN Presbyterian Church.

40-year-old, Sung Won Cho, reportedly died of her injuries at the scene. Cho, the owner of a Manhattan nail salon, is survived by a husband and two sons, aged 8 and 10. Witnesses said the boys may have seen the accident.

The four people injured by the Mercedes SUV have been identified as two women, a 10-year-old girl and a 15-month old boy. All were transported to a nearby hospital for treatment of their injuries. Police report that their injuries are not life-threatening.

The identity of the driver has not been released.

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Car Mows Down Five in Brooklyn Church Parking Lot, 1010 Wins, Sonia Rincon, March 9, 2010.

The family of a 6-year boy who was struck in the head by an oxygen tank causing his death at Westchester Medical Center has reached a settlement of $2.9 million in a medical malpractice and wrongful death lawsuit.

The horrifying incident happened when a hospital staffer brought an oxygen canister into the MRI's magnetic field while the 6-year old, Michael Colombini, was lying in the MRI chamber. The machine's powerful magnet sent the metal oxygen tank flying into the chamber. The tank struck the boy in the head. He died two days later.

Michael Colombini had a benign brain tumor successfully removed at Westchester Medical Center and returned July 27, 2001 for a follow-up MRI. The boy was sedated and inside the MRI machine when a problem with the supply of piped-in oxygen to the MRI room occurred. An anesthesiologist called out to obtain oxygen, and oxygen tank was brought into the room. A NYS investigation concluded that the anesthesiologist brought the tank into the room, while the hospital internal investigation found that either a nurse or doctor brought the tank in.

A week after the accident, then president of Westchester Medical Center, Edward Stolzenberg, said the hospital "failed miserably" and he felt an "overwhelming sense of guilt."

The family's initial lawsuit included General Electric Corp., which manufactured the MRI machine and several individuals involved with the accident.

The settlement will be paid entirely by Westchester Medical Center. Neither the family nor Westchester Medical commented on the settlement.

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Croton family settles with Westchester Medical Center over 2001 death of boy, 6, Journal News, Gary Stern, February 6, 2009.

Mother of two, Julie Stratton, was killed last month when a big rig hit her disabled car in Buffalo, NY. Authorities now believe that truck driver, Thomas Wallace of Brook Park, Ohio, collided with the 33-year-old woman's car because he was watching pornographic material as he drove.

The 45-year-old truck driver is being held in the Genesee County Jail in Buffalo, NY and is charged with 2nd degree manslaughter. Authorities also believe that Wallace violated Federal-trucking rules by sleeping no more than 4 of the 27 hours before the crash occurred.

Straton's car was pulled over to the side of the road because she had hit a deer and stopped to call 911 for assistance.

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Police: Trucker viewed porn before fatal NY crash, Washington Post, January 27, 2010.

A New York trucking accident took the life of 31-year-old Jill E. Mattice, a 6 1/2-year veteran of the Oneonta State Police. Officer Mattice was pronounced dead at the scene after colliding with a tractor-trailer.

The truck was driven by 33 year old F.M. Saggese of West Oneonta. The investigation into the crash remains open.

Website Resources:

State Trooper killed in collision with truck, WKTV, January 20, 2010.