Articles Posted in Miscellaneous

Beginning in January 2018, New York’s Paid Family Leave Law (PFLL) will provide all New York employees with 50 percent of their wages for eight weeks while they are taking off work to care for a loved one. The new law, passed by Governor Andrew Cuomo, will gradually increase the employee’s reimbursement until it pays out 67 percent of an employee’s wages for a 12-week period in 2021. The new law will be fully funded through payroll tax deductions.

Advocates of the new law hope that the PFLL will address the “gaps” not covered by the Family and Medical Leave Act (FMLA), a federal law that also applies to family members taking time off from work to care for a sick loved one. There are several notable differences between the federal law and New York’s. First, the FMLA only applies to employers with over 50 employees in a 75-mile radius, the PFLL applies to all employers in New York. Second, the PFLL extends to domestic partnerships. Third, unlike the FMLA, New York’s Paid Family Leave Law does not apply to employee’s who take time off to care for their own health problem. Fourth, the FMLA requires employees to work for 12 months to become eligible for benefits while the PFLL only requires employees to work for 26 months. Last, the most important difference is that the PFLL provides for compensation during the employee’s absence while the FMLA is typically unpaid.  When both New York’s PFLL and the FMLA apply to an employee’s leave, the employee’s paid leave with both benefit programs will apply simultaneously as long as the employer provides the proper notice required under the FMLA. Continue reading

Ethel Easter of Harris County, Texas was wary of the doctor who would be performing a hernia surgery after some harsh comments he made to her. Easter was told by her doctor she would have to wait two months before her surgery could be performed.  She pleaded that she could not wait that long as she was terribly ill.  The doctor responded, “Who do you think you are? You have to wait just like everybody else.” After this comment, Easter decided to secretly tape record her surgery. Easter placed a small recorder in her hair extensions before entering surgery, when she played the tape back she was shocked at what she heard.

The surgeon began to criticize her immediately after she went under stating, “She is a handful.” He continued to mimic her, saying that she would contact a lawyer and file a complaint for having to wait longer than two weeks to book her surgery; the comments were followed by laughter of other staff in the room. She heard a female voice make fun of her belly button and a male voice saying “Precious, meet Precious.”; Easter believes this is in reference to actress Gabourey Sidibe’s overweight character in the movie Precious. Continue reading

As part of the personal injury civil system, discovery is a phase in litigation that prevents unfair surprises for all parties to a cause of action. The court system, including Federal and State courts, require disclosure of all relevant and material facts that pertain to the case, to be “disclosed,” to the other side prior to trial. This includes document production, depositions, interrogatories, and when necessary, “independent” medical examinations.

An independent medical examination, also known as an “IME,” is a discovery device, which allows a defendant in personal injury cases, to obtain an assessment of plaintiff’s injuries from a physician that has not previously treated the plaintiff. This discovery device, allows the defendant to obtain what is supposed to be an objective and neutral evaluation, rather than documents that have been produced by plaintiff’s personal health-care providers and/or physicians. Parties must comply with specific rules and deadlines in order to take advantage of such resources. See, NYCPLR §3121(a): Physical or mental examination.  “IME” is a term of art.  IME doctors are hired by the defendants and their insurance companies.  Therefore, there is a built in incentive for IME doctors to support the defense.  In many plaintiffs personal injury offices, these examinations are referred to as Defense Medical Examinations or “DME’s”.

Continue reading

Darin Hill, security guard at a  nightclub in New York City, allegedly caused a patron, Plaintiff Fauntleroy, to suffer serious personal injuries during an altercation.  Mr. Hill was employed by a security company, All Season Protection of NY, LLC.  The operator of the nightclub, Sutol Operating Company, hired All Season Protection to provide security at the establishment.  Mr. Hill, All Season Protection and Sutol Operating are all defendants in the lawsuit filed on behalf of Plaintiff Fauntleroy.  Mr. Hill claimed he punched the patron in order to defend himself.

All the defendants made motions for summary judgment asking the Trial Court to dismiss the case.  The Trial Court ruled in favor of the defendants and the case was dismissed.  Plaintiff appealed.  In Fauntleroy v. EMM Grp. Holdings LLC, 133 A.D.3d 452, 452-53, 20 N.Y.S.3d 22 (N.Y. App. Div. 2015) , the Appellate Division, First Department, reversed the Trial Court’s decision.  As such the case will be placed on the trial calendar in Bronx County Supreme Court.

The Second Department Court found that issues of fact existed regarding whether Defendant Hill was justified in punching the plaintiff given the preceding events, and whether the punch was excessive under the law.  The case will also proceed against both Hill’s employer, All Season Protection and the operator of the establishment, Sutol.  Under the law of vicarious liability an employer can be held responsible for negligent or even intentional acts of its employees IF the employees are acting within the cope of their employment or in furtherance of the business.  Here, the use of physical force as a security guard or bouncer at a nightclub could certainly be considered within the scope of Hill’s employment.  For these reasons, the Appellate Court reasoned that a jury should decide these questions.

Continue reading

On November 27, 2007 the decedent (deceased) attended a party at Duvet Restaurant and Lounge, a restaurant and night club located on W 21st Street in Manhattan, where he was fatally stabbed. The decedent was stabbed outside the night club by another patron as the result of a fight that started inside the club. The decedent was stabbed with a knife that the defendant was able to bring into the club. The lawsuit was bought by the administrator of the decedent’s estate against the perpetrator of the crime as well as the establishment (bar/restaurant). An estate administrator is a person who has been appointed by the court to administer the estate of a person who passed away with no will.

The New York Supreme Court, Appellate Division, Second Department recently amended an order that denied plaintiff’s motion for summary judgment in this wrongful death suit.

Continue reading

New York State is one of the few states that do not have a “date of discovery” statute of limitations, which can prove detrimental to many medical malpractice victims. A date of discovery statute of limitations allows a person to pursue an action from the date at which the malpractice is discovered as opposed to the date on which it occurred. This is beneficial to plaintiffs who discover an error was made after the statute of limitations has expired. Lavern’s Law, a proposed bill, would start the statute of limitations at the time the malpractice was discovered, not at the date it occurred.
Continue reading

The New York Supreme Court, Appellate Division, First Department modified a trial court order that granted the defendant’s motion for summary judgment and dismissed a negligence complaint in a car accident case. The First Department dismissed the claim under the 90/180 day rule but allowed the plaintiff to proceed with the “permanent consequential” and “significant” limitations claim under Insurance Law 5102 (d).

The plaintiff was involved in a car accident caused by the defendant. The plaintiff suffered a lumbar and cervical spine injury, as well as a left shoulder injury. The plaintiff filed a negligence lawsuit, seeking personal injury damages for the three injuries.

The plaintiff is a police officer. After getting hurt in the accident, she saw an orthopedic specialist. The orthopedic specialist evaluated her and saw range-of-motion issues in her lumbar spine. The plaintiff missed eight weeks of work, then returned in a limited capacity.

The New York Supreme Court, Appellate Division, First Department affirmed a trial court order and jury verdict that awarded the plaintiff $340,000 in future economic losses and $40,000 in past economic losses after the hospital failed to timely treat the plaintiff for pneumonia.

On the morning of January 24, 2009, the plaintiff walked into Montefiore Medical Center’s emergency room with respiratory issues. However, he wasn’t admitted to the hospital until twelve hours later. He was tentatively diagnosed with pneumonia pending further tests. He passed away five hours later in the early morning hours. The administrator of his estate filed a medical malpractice lawsuit against the hospital. The case went to trial, and the jury awarded the plaintiff $40,000 for past lost wages, $680,000 for future lost wages, and $0 for pain and suffering.

The plaintiff and defendant moved to set aside the verdict. The plaintiff requested that the trial court strike testimony from an expert regarding the plaintiff’s cause of death and set aside the $0 pain and suffering award. The defendant requested that the trial court reduce the future lost wages to $340,000. The trial court denied the plaintiff’s requests but granted the defendant’s request.

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court’s order denying summary judgment to a landlord sued by his renter after a nasty fall down the stairs.

The plaintiff lived in a duplex owned by the defendant landlord. A set of exterior metal stairs at the building led to the front entrance. The metal was corroded, and parts of the handrail that had corroded had been haphazardly welded back together. The plaintiff descended the stairs, gripping the handrail on his way down. A portion of the handrail that had been welded then broke off in the plaintiff’s grasp, causing him to tumble down the stairs. The plaintiff sustained injuries due to the fall.

The plaintiff brought a premises liability lawsuit to recover for personal injury damages. In his complaint, the plaintiff alleged that the landlord was negligent in maintaining the stairs and handrail in a safe condition. The landlord filed a motion for summary judgment, requesting that the complaint be dismissed.

The New York Supreme Court, Appellate Division, First Department affirmed a trial court’s order that granted the Department of Education and hospital’s motion for summary judgment in a combined negligence and medical malpractice case.

The plaintiff was an 8-year-old child who attended a public school operated by the Department of Education. While playing on the playground, the plaintiff began to suffer a stroke. Several DOE staff were present on the playground at the time. The plaintiff began to fall, and one staff member scooped her up and caught her mid-fall. The child couldn’t stand or move her legs, so the staff member called 911.

EMS took the child to Jacobi Hospital where she was eventually diagnosed with an acute ischemic stroke. She received a CT scan and was later released.

Contact Information