Feldman, Kronfeld & Beatty Law Blog

Tuesday, October 13, 2015

Contracts, Sports, & Injuries: Preventing Recovery for Others' Negligence

The attorneys and staff at Feldman, Kronfeld & Beatty enjoy outdoor activities like hiking, sailing, and playing sports. Sometimes, like our clients, we are involved with an organization that asks us to sign a contract or a waiver before participating. Those waivers, long paragraphs of little text, often have provisions that can prevent you or injured loved ones from recovering for injuries received due to others' negligence. If you are participating in a sports program, be sure to ask for copies of any contract or waiver that you signed for your own records.

A perfect example is the tragedy of 20-year-old Thomas Plotkin. In 2011, Mr. Plotkin was in India with the National Outdoor Leadership School, hiking with a heavy backpack in pouring rain next to a 300-foot ravine. He slipped on a wet rock and fell into the canyon, disappearing into a raging river. His body was never found.

Ms. Plotkin's mother sued the school in federal court, saying that Plotkin should not have been allowed to hike so far ahead of the school's leaders and that the school took too long informing authorities and a local village of Mr. Plotkin's disappearance. However, the federal judge, while sympathizing with the plaintiff, found on Friday that Mr. Plotkin had signed an agreement stating that he understood that what he was doing was dangerous. The judge said that because Mr. Plotkin promised not to sue the school in case he was injured in the inherently dangerous activities of the school, the mother could not either.

New York law is much the same; it is very difficult to prove negligence if someone is injured playing a sport (of which hiking is one), even if the injury "came out of left field." If you are injured playing a sport, be sure to speak with an experienced trial lawyer to discuss your rights and any potential claims you might have. The attorneys at Feldman, Kronfeld & Beatty are available to speak to you for a free consultation on the subject of sports or hiking injuries at (212) 425-0230 or at 

Friday, October 9, 2015

1st Judicial Department, Appellate Division Roundup: October 1 & October 6, 2015 Edition

As most of the personal injury cases backlogged on the Court's docket seems to have been dealt with a few weeks ago, there are really only two cases worth mentioning:

Muth v. Wali Mohammed, MD, PC

In this case, the plaintiff committed suicide three weeks after meeting with Dr. Radcliffe, a staff psychologist with a firm that examined plaintiff on three separate occasions for a Workers' Compensation examination and evaluation. The Court dismissed the case that sought to find Dr. Radcliffe's responsible for plaintiff's suicide, since the Court found as a matter of law that "the choices Dr. Radcliffe made were not a proximate cause of [plaintiff's] suicide, an event which occurred three weeks after he last visited with Radcliffe."

Obiotta v. Dukes System Corp.

In this case, the defendant Dukes System Corp., the owner of a truck, and the driver of the truck, were dismissed from a case. The plaintiff's vehicle was being towed, and the tower of the vehicle crossed double yellow lines and nearly hit the truck. In order for the tower to avoid hitting the truck, the plaintiff's vehicle hit the truck, which was stopped. The Court found as a matter of law the truck could not be held liable for the accident, nor could its failure to take evasive action be responsible for the accident.

Thursday, October 8, 2015

Better or Worse: Motor Vehicle Accidents Still Claim Lives

Yesterday, the Department of Transportation testified before the New York City Council on the progress of their "Vision Zero" program introduced by Mayor de Blasio. In the last twelve months, no police cars, fire trucks, garbage trucks or snow plows were involved in a fatal crash. Last year, eight people were killed. The City is claiming that new training programs and sideguards on 250 city trucks have prevented the deaths. However, the Comptroller's introduction of ClaimStat to make city agencies accountable for the lawsuits and payouts they have had to make from injured New Yorkers are likely also involved.

But by no means is the City still safe. On Monday, a mother was killed, and her toddler critically injured, when an SUV ran a red light at Atlantic Avenue and 108th Street, striking a Kia and sending the car into four people. The mother heroically tried to push the toddler out of the way. That same day, a pregnant mother leaving her work as a waitress in Staten Island was trying to catch the bus and killed.

These everyday New Yorkers, caught in horrible and preventable accidents, deserve to be represented by a neighborhood law firm who cares to get them the most that they can for their injures. If you, or a loved one, has been hurt in an automobile accident or struck while in the street, call the experienced trial lawyers at Feldman, Kronfeld & Beatty at (212) 425-0230 or at

Wednesday, October 7, 2015

2d Judicial Department, Appellate Division Roundup: September 30, 2015 Edition

In this edition of the 2d Judicial Department, Appellate Division Roundup, which was light on detailed personal injury cases, we bring to you some interesting elements of presenting a successful case against municipal defendants, and the 2d Judicial Department's thoughts on the necessities of motion to compel discovery: 

Bachvarov v. Lawrence Union Free School District and County of Nassau

This case again shows the difficulty of proving “prior written notice” when municipal defendants are being sued for personal injuries related to defective conditions. The plaintiff was hurt when she tripped and fell over a defect in a sidewalk abutting a premises owned by the school district in Nassau. Unlike New York City, which generally makes the landowner responsible for sidewalks with the exception of certain family residences, in counties like Nassau it is the municipality’s responsibility. However, the county needed to have prior written notice of the defect in order to be sued over it. Here, the Court said that even though the Nassau County of Public Works, the entity in charge of actually fixing the defect, had prior written notice, because the statute required that the Office of the County Attorney get the notice, the County could not be held liable. Therefore, the plaintiff’s case was dismissed.

Fridman v. New York City Transit Authority

Another case where the trial lawyers have to be experienced with the ecosystem of municipal defendants in New York City in order to properly provide clients with a chance at recovery. In this case, the plaintiff was injured when the Q60 bus on Queens Boulevard suddenly stopped, throwing him forward and fracturing his hip. The correct defendant to sue was the MTA Bus Company, but instead, the lawyers for the plaintiff sued the MTA and the New York City Transit Authority. Since the MTA Bus Company, although a subsidiary of the New York City Transit Authority, was a different entity, the plaintiff’s lawyers missed the statute of limitations and the motion for summary judgment was granted.

Friedman v. Rogerson

In this motor vehicle accident case, the plaintiff was granted summary judgment on the issue of liability, when she proved that was walking within an unmarked crosswalk, that she had observed the conditions of approaching traffic before she began to cross, and that the defendant driver did not yield the right of way.

Pardo v. O’Halleran Family Chiropractic

In this medical malpractice case, the defendant lost their application for summary judgment on whether the defendant’s chiropractic treatment caused the plaintiff’s injury, and also failed to establish with reasonable certainty that the plaintiff would not be able to prove lost earnings. Furthermore, as a practice tip, it should be noted that the court simply threw out the motion for compelling discovery since the required affirmation of good faith effort to resolve the dispute was missing.

Tuesday, October 6, 2015

2d Judicial Department, Appellate Division Roundup: September 26, 2015 Edition

BInani v. City of New York

The Court granted a motion for summary judgment on behalf of the City and the Department of Education, DISMISSING the case. During a wiffle ball game, the plaintiff, a child, was jogging between home base and first base when he was struck in the head by a fellow student taking a practice swing. This was considered a type of accident which was "spontaneous and unforeseen . . . which could not ave been prevented by any reasonable degree of supervision," and so the Department of Education and the City bore no responsiblity to the child and to the parents to prevent this kind of accident from happening again.

Calamari v. Panos

At Decisions 2015 last weekend, hosted by the New York State Trial Attorneys, attorneys at Feldman, Kronfeld & Beatty heard many stories about the patients of the orthopedic surgeon Spyros Panos. The Court prevented the plaintiffs from bringing extra claims against Mid Hudson Medical Group, P.C. and Hudson Valley Center at Saint Francis, LLC because, along with the claims of medical malpractice, the plaintiffs wanted to allege negligent hiring and negligent supervision. Because the plaintiffs waited too long to bring the extra claims, they weren't allowed to amend their complaint and include those causes of action.

Chou v. Ocean Ambulette Service, Inc.

The Court reversed the denial of a summary judgment motion in favor of the plaintiff, granting the plaintiff's summary judgment motion for liability against the defendant. The plaintiff had waited for the pedestrian signal, and was crossing the street, walking at a steady normal pace, and having almost crossed to the other side she was struck by the vehicle operated by the defendant driver. Since the defendant driver came from behind and failed to yield the right of way, it was considered that there were no facts that the defendant could bring up that would make the plaintiff partially responsible for her injury.

Correnti v. Chinchilla

A plaintiff had slipped and fallen on a grassy slope on defendant's property. The Court found that this was the kind of open and obvious condition that was not inherently dangerous to people using it so that the defendant had some duty to prevent the plaintiff from being injured by it. The case was dismissed.

Yeo v. Spa Castle, Inc.

In this case, the defendant, Spa Castle, Inc. owned a vehicle in which the plaintiff was a passenger. Another defendant, Jin, turned in front of the Spa Castle vehicle and caused the accident. In a motion for summary judgment, the plaintiff was able to rebut testimony, via the plaintiff's deposition transcript, that Jin violated several elements of the Vehicle and Traffic Law and failed to yield. However, they were unable to raise a triable issue of fact that the driver of the Spa Castle vehicle was at fault, and the case against that defendant was dismissed.

Lewis v. City of New York

An NYPD officer was shot in the torso while apprehending a suspect in Queens County. His bulletproof vest, issued by the City, did not cover the bullet's entry point. The officer sued the City, claiming that the City was negligent in failing to provide him with a vest that covered a larger area of his torso. However, the Court found that this was the kind of decision that is a discretionary governmental function, and it was entitled to qualified immunity and could not be sued for this kind of behavior and dismissed the NYPD officer's case.

Rabenstein v. Suffolk County Department of Public Works

In this case, the plaintiff was on Health Science Center Road, which was controlled by a flashing red light, in Brookhaven. A bus, operated by the County of Suffolk, was on Health Science Center Drive, which was controlled by a flashing yellow light. The bus struck the plaintiff. The bus, moving for summary judgment, alleged that as a matter of law, the case should be dismissed. However, even if the bus had the right of way, a driver may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident. Therefore, the motion for summary judgment was properly denied.

Richardson v. Brooklake Associates

The plaintiff, producing and directing a play at the Galapgos Art Space, fell into a water-filled trench when her right foot went off an unguarded edge of the walkway leading to the stage from the center aisle of the venue. The area where the plaintiff had been walking was dark at the time of the accident, while the stage was lit, and this was the first rehearsal of the play. The Court found that this was not the kind of open, obvious, and not inherently dangerous condition that would warrant dismissal of the complaint. The defendant had controlled the venue and removed the railing around the area where the accident occurred and controlled the lighting. Therefore, the defendant's motion for summary judgment was properly denied.

PRACTICE TIP (default judgment & disclaimer): Gershman v. Ahmad

This is a "Dram Shop" case, one in which the plaintiff alleges that one of the defendants, in this case Billiard Balls Management, LLC doing business as Slate, served alcoholic beverages to a visibily intoxicated person, in this case the defendant Sammy Ahmad, who then got into an auto accident involving the plaintiff. The Slate was ten months late in serving in Answer, because their insurance policy had "disclaimed" and refused to provide Slate with attorneys to defend them. Furthermore, the defendant failed to do the most important thing: get an affidavit from the owner of Slate stating facts that would prove they had a meritorious defense to the Dram Shop action. The default judgment was granted.

PRACTICE TIP (contractual indemnification): Cordova v. Town of Islip

In this case, a motion of summary judgment dealing with contractual indemnification, the Court gave an interesting discussion between two parties in a wrongful death action involving an employee of one of the parties. In November of 2002, Mr. Cordova was working at a paper recycling facility owned by his employer, Giove Company, Inc. A truck driven by employees of the Town of Islip was unloading paper in the facility, in which two parts of the facility were separated by a wall of stacked cement blocks. The employee of the town testified that the mechanical arm that pushed paper off the back of the truck wasn't working normally, and when he went to go check, he saw that some parts of the cement wall had fallen off, presumably on top of Mr. Cordova. However, the testimony also demonstrated that the wall was just cement blocks stacked on top of each other with no mortar or anything else to secure them, and usually employees of Giove helped others to unload paper from the trucks. The NY Department of Buildings issued a violation for the wall to Giove after an investigation. The Court found that common-law indemnification and contribution applied here, but because there was no contractual relationship between Giove and the Town and the Town failed to introduce evidence that it was an "intended third-party beneficiary" to the contract between Giove and Islip Resource Recovery Agency, a cause of action for contractual indemnification was improper and should have been dismissed.


Monday, October 5, 2015

Explosion in Brooklyn: Another Gas Explosion in NYC Claims at Least One Life

On Saturday afternoon, an explosion ripped through a building on 13th Avenue and 42nd Street, killing a woman. It is being reported that the previous tenants had removed an appliance from the apartment, a stove, without properly disconnecting the gas line. Three others, including a 10-year old boy, have been taken to Maimonides Hospital with injuries. One of the injured may have serious, debilitating injuries to his leg and feet.

Gas explosions, like the one that occurred in March at 121 Second Avenue which killed two, should not occur. For example, the 121 Second Avenue explosion was caused by one or more gas lines being illegally and improperly tapped. Sometimes people only have moments between the times they smell gas and the explosion. In 2014, eight people were killed when 1644 and 1646 Park Avenue in East Harlem were obliterated by a gas leak caused by faulty welding of two ConEd pipes and a large hole in a nearby sewer main that New York City failed to fix, according to the National Transportation Safety Board.

According to ConEd, if you smell a distinctive, strong odor like rotten eggs, if you see a white cloud, mist, fog, bubbles in standing water, or blowing dust or vegetation that appears to be dead or dying for no reason, or hear roaring, hissing, or whistling, leave the area immediately and call 911 or ConEd to report a gas leak.

Gas explosions are almost always the cause of negligence. If you, or a loved one, is injured in a gas explosion, you should talk to an experienced trial lawyer immediately to determine your rights and potential claims. The experienced trial lawyers at Feldman, Kronfeld & Beatty are available at (212) 425-0230 or at to discuss with you any injuries that you may have suffered due to a gas explosion.

Friday, October 2, 2015

Elevator Horror: Man Trapped Between Elevator and Lobby, Killed

This morning, another horrible accident that could only be the result of a building owner's or elevator operator's negligence occurred: a man was trapped between an elevator and the lobby of his apartment building and killed. He and his roommate lived in The Espoir building in Williamsburg, on Hope Street near Union Avenue. As the elevator went down, the elevator's doors never closed.  When he tried to jump out of the elevator, it suddenly shot upwards, trapping his body inside the elevator and his head outside the elevator. Worst of all, he wasn't killed immediately: his roommate, who was with him as he died, reported that she actually felt his pulse slow and stop nearly a minute after the accident occurred.

Deaths by elevator accidents in the city are rare, but they do happen. In 2011, an advertising executive named Suzanne Hart was killed by an elevator that suddenly shot up; the Department of Buildings later learned that workers for Transel bypassed a door safety circuit with a jumper cable and allowed people to use that elevator.

Elevator accidents are uncommon, but they can sometimes cause terribly and long-lasting injuries. Whether it's as minor as misleveling or as major as catching people as they enter or exit, anyone who is the victim of an elevator accident should call an experienced trial lawyer to discuss their rights or possible claims. It should be noted that courts in New York consider misleveling elevators and some other elevator accidents to be so extreme that any injury that comes from such accidents must be the elevator's fault, under the theory of res ipsa loquitur. The attorneys at Feldman, Kronfeld & Beatty are available at (212) 425-0230 or at to discuss with you potential claims you may have if you are injured by an elevator.

Thursday, October 1, 2015

1st Judicial Department, Appellate Division Roundup: September 29, 2015 Edition

The 1st Department is issuing a significant number of decisions against, but most of them on September 29, 2015 dealt with criminal appeals. However, there were a few cases involving personal injuries:

Golubowski v. City of New York, et al. and 150 Williams Street Associates, L.P. et al.

The plaintiff, a plumber, was dismantling pipes in a building owned by the defendant, 150 Williams Street. He was on a ladder, and a leaky overhead sprinkler system was dripping water down on top of him. The ladder became wet and slippery, and he slipped and fell and sustained personal injuries. The plaintiff won his summary judgment motion, because the defendants provided him the ladder, and the scaffold that the defendants already provided was in use by plaintiff's co-worker and unavailable for the particular project.

In re Jacobs v. New York State Division of Human Rights

On July 17, 2013, the New York State Division of Human Rights found that Mr. Jacobs had engaged in housing discrimination based on age and discrimination, and had caused mental pain and suffering and punitive damages to the woman that was discriminated against. In all, Jacobs had to pay $75,000.00 in damages, $20,000.00 to the woman he discriminated against. Furthermore, it was confirmed that compensatory damages for mental pain, suffering, and anguish in a housing discrimination case was proper.

PRACTICE TIP: Kenneh v. Jey Livery Service

This case arose out of a discovery dispute in a personal injury action. Jeh Livery Service had filed a motion demanding that plaintiff provide HIPAA-compliant authorizations for production of medical records relating to the plaintiff's pre-existing diabetic condition. The plaintiff, however, never put his diabetic condition at issue by arguing anxiety or other symptoms following the accident. The plaintiff only alleged injuries to his right knee, shoulders, and spine. Therefore, the 1st Department found that the discovery relating to the diabetic condition was improper and affirmed the denial of the defendant's motion.

Wednesday, September 30, 2015

Failures of Probation & Surveillance: Can the Government Be Held Accountable for This Man's Crimes?

The attorneys at Feldman, Kronfeld & Beatty take the responsibility of protecting everyday New Yorkers from the negligence and failures of our government to protect us very seriously. We mourn the loss of family members with our clients, and always try to help them answer questions about how what happened to them will never happen to another.

On March 14, 2013, a sex offender named David Renz murdered a school librarian and raped her daughter in Syracuse, New York. Renz had just been arrested for child pornography charges, and as a condition of his bail had to wear an ankle monitor. From Renz's own mouth, he described how he was able to disable the ankle monitor, and his probation supervisor showed him how to re-attach it on his own. Renz was able to take off and re-attach the ankle monitor nearly a dozen times before his horrible crimes.

Is the government responsible for Renz's crimes? They might be. If the government knew that Renz was predisposed to sexually oriented crimes and failed to properly monitor Renz, as it appears they did here, they may be liable for negligently failing to supervise Renz and report him when he detached the ankle monitor. This is a classic "but for" case: but for the government's failure to properly monitor Renz, he may never have committed those crimes, and therefore the government may be responsible and will have to pay the family of Renz's victims for its negligence.

This is a hypothetical situation; no case has been filed yet to our knowledge. But if you, or if someone you know, has been hurt by the negligence of the government, you may have a case. Call the attorneys at Feldman, Kronfeld & Beatty at (212) 425-0230 or at for a free consultation to discuss your injuries and your rights.

Tuesday, September 29, 2015

Hit & Run Driver Leaves Pedestrian Seriously Injured in Queens

As we've discussed previously, the attorneys at Feldman, Kronfeld & Beatty are specialists in working with pedestrians who have been struck by automobiles, bicycles, motorcycles, and trucks. Some pedestrians suffer injuries that will haunt them for the rest of their lives, even though they were just trying to, for example, get to the store or go to a friend's house.

On Sunday, a hit & run driver in Forest Hills struck a pedestrian. It is reported that the vehicle did not even slow down before hitting the pedestrian, and kept on driving. The injured man is in serious condition at Jamaica Medical Center in Brooklyn. He was hit so hard that his body went flying and struck metal dumpsters; these secondary injuries may even be worse than the initial impact. This man may have a case against the driver of the automobile if they were able to get the license plate, make, and model of the car, or a case against the man's own uninsured motorist policy or MVAIC if that information remains unknown.

It is important that, if you have been hit by an automobile, to call experienced trial attorneys as soon as possible. The law firm at Feldman, Kronfeld & Beatty can help you if you're a pedestrian who has been hit by an automobile, even if you don't know the make, model, or license plate of the car. You can contact us at (212) 425-0230 or at for a free consultation.

Monday, September 28, 2015

Dog Jumps, Hip Breaks: Can This Manhattan Woman Recover From this Dog Attack?

We here at Feldman, Kronfeld & Beatty are responsible pet owners, but not everyone in New York City is. There are reports that a woman in Manhattan was attacked by a dog who pushed her to the ground, breaking her hip. She is suing the owner of the dog for negligence.

The attorneys at Feldman, Kronfeld & Beatty have vast experience in dealing with lawsuits involving domestic pets. The truth is that, since recent Court of Appeals decisions including Doerr v. Goldsmith, it will be very difficult to sue the owners of domestic pets for injuries suffered by that pet unless the plaintiff can prove a "vicious propensity," or other propensity that would put the owner on notice that the dog had to be given special attention. It is reported that this owner knew that the dog was likely to jump on people; however, as in Doerr v. Goldsmith, dogs acting like dogs is usually not enough to recover.

If you are injured in an accident involving a domestic pet, call an experienced trial attorney immediately to discuss your injuries and possible rights and claims. The attorneys at Feldman, Kronfeld & Beatty, who have decades of experience, are available at (212) 425-0230 or at for free consultations to discuss these very issues with you.

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