Feldman, Kronfeld & Beatty Law Blog

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.

Thursday, September 24, 2015

Dangers to Brooklyn's Elderly: NYPD & DOT Warn that South Brooklyn Elderly Are in Danger From Motor Vehicles

Of the 15 pedestrians who have been killed in auto accidents in the police command known as "Brooklyn South", which stretches from Coney Island to Crown Heights and Red Hook to East Flatbush, eight of them have been 65 or older. 

Just for the month of August alone, 5 pedestrians in Brooklyn have lost their lives to auto accidents. 228 have been injured. Each of those deaths or injuries may have been prevented. Each of those deaths or injuries may have been the cause of negligence on the motor vehicle driver's part. It is imperative that, although each and every case is different, that if you are injured as a pedestrian you immediately contact a trial lawyer to discuss your rights and any potential claims you might have.

Wednesday, September 23, 2015

1st Department Alert: City’s Summary Judgment Motion DENIED Against Murder-Suicide NYPD Officer’s Girlfriend

On September 22, 2015, the 1st Judicial Department, Appellate Division, DENIED a motion by the City of New York to grant summary judgment against the plaintiff in the case of Keyla Gonzalez v. City of New York. In this case, an NYPD officer murdered his girlfriend, the plaintiff’s mother, before killing himself. The plaintiff sued the City for negligent hiring, training, supervising, and retaining an NYPD officer that had complaint of violent propensity. While the police officers testified that they have denied ever receiving even a single complaint about the offending officer’s alleged violent propensities, the City was informed on numerous occasions about the abusive conduct toward the decedent and the plaintiff.

“The negligent retention or supervision of a police officer,” said the Court, “which results in the employee having possession of a dangerous instrumentality, is similar to if not indistinguishable from the tort of entrusting a dangerous instrumentality to another . . . . The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment.”

“When an officer misuses his weapon, a jury might reasonably find that the misuse was proximately caused by the government’s negligence, if proven, in supervising or retaining a police officer with known violent propensities. Furthermore, it was reasonably foreseeable that such an officer would injure a member of his own family, including his girlfriend.”

And even though the officer was off duty, the Court still found that New York has “declined to draw a bright line rule that would preclude recovery in a negligent hiring or retention claim in situations where, as here, the City employee was not acting within the scope of his employment.”

If you, or anyone you know, are the victims of brutality or abuse by City employees, make sure to discuss your potential rights with a trial lawyer. Decisions like this make it possible for those who have been hurt by employees of the City to recover against the City for failing to protect New Yorkers.

Tuesday, September 22, 2015

Falling Trees at Bryant Park: What's the First Step?

Earlier this month, a tree branch in Bryant Park snapped and fell, injuring four. One of the people who were injured in the accident, Columbia University graduate student Blythe Duckett, sustained a compound fracture to her arm and one of the witnesses to the accident told reporters "Her arm went limp. You could see the bone sticking out."

After the accident, the Post sent certified arborist Michael Pill to check out Bryant Park's trees. He said that several of the major London plane trees in Bryant Park suffered from crown rot.

Ms. Duckett, in a cast and having undergone surgeries, apparently contacted the trial attorneys at Smiley & Smiley, LLP. They, like other trial attorneys in a similar situation, understood that a claim such as hers needed immediate action. If the tree was diseased and dying, evidence of the tree's condition and evidence of other trees' conditions in the vicinity would be vital to prove her claim against the Department of Parks and Recreation and the Bryant Park Corporation.

They immediately filed suit and asked the Department of Parks and Recreation and the Bryant Parks Corporation to preserve any evidence of the branch collapse and related damage. They can now use the evidence that will be collected for trial, or use the failure to maintain such evidence against the defendants later down the road.

While no two cases are alike, and past results do not guarantee future results, be sure that experienced trial lawyers and litigators who understand the entire process can be helpful from day 1 of a potential claim.

Monday, September 21, 2015

Olivia Brown’s Death & NYCHA: Are NYCHA's Lawyers Blaming the Victim?

On Thursday, the New York Post reported that “[s]eeking a dismissal of the mother’s wrongful-death lawsuit, lawyers for the New York City Housing Authority argued Olivia’s 2013 shooting at the Lincoln Houses, allegedly by a trespasser was ‘spontaneous’ and ‘unavoidable.’ All the risks, hazards and dangers were open, obvious and apparent to [Brown] and said risks, hazards and dangers were openly and voluntarily assumed by Brown.”

The New York Post reports this as a shocking development, but for those who represent parents who’ve lost children to the City’s negligence, this is an all-too-familiar response.

Crystal Brown, the mother of Olivia Brown, filed a lawsuit on October 20, 2014, against the New York City Housing Authority. She alleged, that “an armed assailant who was not a tenant of [the Lincoln Houses] was permitted to enter and remain at the premises” and NYCHA “had a duty to maintain the premises in a reasonably safe and secure condition for the tenants . . . [including maintaining] proper safety and security precautions to protect the plaintiffs against intruders and dangerous persons.” Brown v. NYCHA Complaint, paras. 12 & 13.

In the answer (not the motion of summary judgment, as the article seemed to suggest) filed on Thursday, the attorneys for NYCHA wrote, as an affirmative defense: “[A]t the time and place complained of in the plaintiff’s complaint, all the risks, hazards and dangers were open, obvious and apparent to the plaintiff’s decedent and said risks, hazards and dangers were openly and voluntarily assumed by the plaintiff’s decedent which caused and/or contribution [sic] to the alleged injuries death and alleged resultant damages.” Brown v. NYCHA Answer, para. 11.

Is this unusual in an answer for this kind of lawsuit?

This kind of lawsuit is known as a “premises liability” case. The duty of the owner of a building may include protecting individuals against injury caused by the conduct of third persons on the premises. Burgos v. Aqueduct Realty Corp., 92 NY2d 544 (1998). Governmental entities, such as NYCHA, when acting as landlords, are subject to the same duties that apply to private persons. NYCHA may be liable for failure to maintain minimal security measures, related to a specific building in the face of foreseeable criminal intrusion upon tenants. Miller v. State, 62 NY2d 506 (1984).

It is a defense to any premises liability case that the open and obvious character of the danger of the premises can raise issues that the plaintiff was partially at fault, therefore mitigating the defendant’s liability. Saretsky v. 85 Kenmare Realty Corp, 924 N.Y.S.2d 32 (1st Dept. 2011). It has become common practice in all premises liability cases that we've seen here at Feldman, Kronfeld & Beatty  for defense lawyers to allege that the plaintiff’s injuries came from an open and obvious condition and that the injuries were partially the plaintiff’s fault, regardless of the facts that were presented.

Every case is different, and no two defense lawyers will serve the exact same answer. But as we saw above, this kind of affirmative defense is the type of “cookie cutter” response that serves to protect defense lawyer’s premises liability clients and assert every possible defense to the claimed action, regardless of the facts presented. It takes a good trial lawyer to analyze the answer for both the logical and illogical affirmative defenses and appropriately analyze them for which ones pose the greatest risk to the successful resolution of a client’s claim.

Friday, September 18, 2015

2nd Judicial Department, Appellate Division Roundup: September 16, 2015 Edition

The following cases and their summaries were released by the 2nd Judicial Department on September 16, 2015:

 Bracco v. NU Image Associates Group, Inc. et al

On November 5, 2012, Michelle Bracco died of carbon monoxide poisoning when a plumber who was working on her house after Hurricane Sunday accidentally left a gas generator on in her garage. The defendants tried to say that the generator was outside of the garage, but the plaintiff decedent's son and her neighbor stated that the plumber used the generator in the garage and the plumber closed the garage door. The defendant's motion for summary judgment was denied.

Leora Hackel v. We Transport, Inc. et al.

While getting off the bus to her preschool, Leora Hacker's four-year-old-child cut her hand on a seatbelt cutter that was stored next to the mechanism to open and shut the bus door, and children getting off the bus would have to pass by it. Ms. Hackel sued the bus company and the preschool alleging that the defendants were negligent in storing the seatbelt cutter so close to where kids could get hurt and for not supervising the children getting on and off the bus. The defendants' motion for summary judgment was denied, because the teaching assistant who escorted the child from the bus to the school, failed to establish that the child did not stop, reach, or touch anything as she exited the bus.

Caroline Swoboda v. Adrian Phillip Fontanetta

Carolina Swoboda went to Dr. Fontanetta, a surgeon, for an arthroscopic subacromial decompression of her right shoulder in 2007. Shortly afterwards, she felt pain in her collarbone and she went back to Dr. Fontanetta, who sent her home. Two weeks later, she went back to the doctor, who examined her and saw that her collarbone was, in fact, broken. Ms. Swoboda sued Dr. Fontanetta for medical malpractice, claiming that Dr. Fontanetta broke her collarbone during the right shoulder surgery and failed to diagnose it properly. In a surprising move, the Court denied the defendants' motion for summary judgment on the plaintiff's claims of res ipsa loquitur, a legal term that means that this is a narrow category of medical malpractice cases requiring no expert to enable the jury to reasonably conclude that the plaintiff's injury would not happen without negligence.

Daphne Jordan v. Juncalito Abajo Meat Corp.

Ms. Jordan slipped and fell in the defendant's grocery store. The defendant moved for summary judgment, and was denied because the surveillance video failed to show that there was no water in the area where Ms. Jordan fell, and the defendant did not give evidence of the last time that the floor was cleaned or inspected prior to Ms. Jordan's fall.

Maldari v. Mount Pleasant Central School District

A high schooler, tormented and bullied by other kids in his class, sued his high school for failing to properly supervise and protect him from the emotional damage of being constantly bullied. The defendant moved for summary judgment, and the Court granted it and dismissing the plaintiff's complaint because schools are not "insurers of the safety of their students" and an assault against the student in the cafeteria was an "unforeseeable act and that it had no actual or constructive notice of prior conduct."

TRIAL TIP: Memenza v. Cole

At trial,the plaintiff testified that she was struck by a motor vehicle while walking across the street within a crosswalk with a light in her favor, while the defendant testified that the plaintiff was riding a bicycle and came out between two parked cars. A redacted police accident report was entered into evidence, which indicated that the plaintiff was riding a bicycle and that the accident occurred in the middle of the block. However, the police officer who prepared the report did not remember how he investigated the accident, could not remember seeing a bicycle, could not remember how he identified the middle of the block as the scene of the accident, and could not recall who told him this information. Even though the defendant was found not negligent, the Court ordered a NEW TRIAL. The Court found that the police report, which is admissible so long as the report is made based upon the officer's personal observations and while carrying out his duties, contains hearsay statements, the statements must be themselves admissible under the business records exception. If not, the police report cannot come in. Furthermore, since the information contained in the accident report bore directly on the ultimate issue to be determined by the jury, the error was not harmless.

Thursday, September 17, 2015

Happy Constitution Day!

Feldman, Kronfeld & Beatty wishes everyone a Happy Constitution Day! On September 17, 1787, the Constitution was signed and sent to the states for ratification. And it was that document that gave us Article III, and with it federal courts, and the Seventh Amendment, giving all Americans the right to a civil jury trial.


Wednesday, September 16, 2015

Rivera v. Fernandez: Motor Vehicle Accidents and Degenerative Injuries at the Court of Appeals

It is important, when finding trial lawyers to assist in a potential motor vehicle accident case, that the lawyers have familiarity with the medicine and the law surrounding auto accidents. Because of the strictness of the no-fault law in New York, if the medicine that is submitted to the Court isn’t comprehensive and accurate, there is a chance that the plaintiff’s case will be dismissed.

On August 27, 2015, in the case of Richard Rivera v. Fernandez & Ulloa Auto Group, New York’s highest court, the Court of Appeals, affirmed the decision of the 1st Department Appellate Division in a one short paragraph. This decision, while brief, impacts the rights of victims of motor vehicle accidents to sue in court to recover for their injuries.

On June 26, 2010, Mr. Rivera was rear-ended by a vehicle driven by the defendants. He told the Court and the defendants that he suffered meniscus tears in the left knee and had to undergo surgery. His doctor wrote an affidavit to the Court that the injuries he suffered were from the auto accident.

However, the defendant’s doctors wrote to the Court that Mr. Rivera’s injuries were “preexisting and degenerative,” and the plaintiff’s doctor only wrote that the plaintiff’s knee injuries were “secondary” to the accident. The plaintiff’s complaint was dismissed by the trial court, and appealed to the 1st Department.

The 1st Department agreed with the trial court. Because the injury was “secondary” to the car accident and plaintiff’s “surgeon not only failed to address or contest the opinion of defendants’ medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the findings of degenerative changes in the MRI report in plaintiff’s own medical records.”

What this means, in summary, is that “anyone with degenerative changes [who is in an automobile accident] is automatically presumed to not have a traumatically induced injury even when the plaintiff’s doctor gives a medical opinion that the injury is traumatically induced” (NYSTLA Letter-Brief, pg. 8).

While this is one case, and every case is different, what this shows is that if you are in a motor vehicle accident, the attorneys that you choose to help you with your potential case must understood the medicine and the law surrounding motor vehicle accident cases in New York. Although attorneys are not doctors, attorneys should be familiar with the basics of anatomy, orthopedic surgery, and the difference between traumatic injury and degenerative and chronic injuries to work with you and your doctors to present the Court with all of the evidence it needs to prevent an untimely dismissal of your case.

Tuesday, September 15, 2015

1st Department Alert: $100k too low for permanent hand injury

In the recent case of Kutz v. Bovis, decided by the 1st Department Appellate Division on September 8, 2015, a jury in Manhattan, also known as New York County, had awarded $100,000 to a tile finisher who had tripped and fallen over construction debris at a building site. He had received nerve damage to his left hand, including symptoms consistent with reflex sympathetic dystrophy and significant limitation of the use of his left hand due to permanent contracture of the fingers.

The Court found that:

A) The jury should have awarded the plaintiff something for loss of consortium. The plaintiff's behavior changed after the injury and it had impacted his relationship with his significant other. The 1st Department awarded the plaintiff's significant other $50,000.00 for loss of consortium.

B) Based on other decisions regarding serious injuries to the hand and associated depression, the award of $100,000.00 was too low. The 1st Department increased it to $400,000.00.

In short, because the plaintiff's trial attorneys took the time and effort to appeal the jury verdict to the 1st Department, the plaintiff's award was increased from $100,000 to $450,000. While this is only one case, and prior results do not guarantee similar outcomes, you and your clients should be sure to consult with the best trial lawyers that they can to ensure to maximize recovery.

Monday, September 14, 2015

Dog Bites: The Most Recent Bronx Attack and Current Law

We here at Feldman, Kronfeld & Beatty are responsible and loving dog owners, but that does not change our commitment to providing justice for those that have been hurt in vicious dog attacks.

On Friday, a man was attacked by two pit bulls in the Bronx. Dog bites are particularly dangerous, and almost always they require the supervision of a medical professional to prevent the spread of infections or virulent diseases like rabies. For example, the two pit bulls in question are being examined right now to make sure that they do not have rabies. If you are bitten by an unknown dog, make sure to immediately speak to a medical professional to get the proper treatment.

In New York, under certain circumstances, individuals who are bit and maimed by dogs can initiate a lawsuit against the dog owner and the landlord of the dog's owner for negligence. It is, in general, very difficult to maintain an action against the owner of a dog because of the "one bite rule." This rule was reinforced in the recent Court of Appeals case Doerr v. Goldsmith, which held against the plaintiff for failing to prove "whether defendants had notice of the animals' harmful proclivities." In short, if a dog hasn't bitten anyone before, it will be very difficult to sue the dog owner.

However, it appears that in this case, the dog had attacked several other dogs over the course of the summer and had a reputation as a dangerous animal. In those situations, a lawsuit may possibly be maintained against the dog owner for any bites from that dog. As in all possible lawsuits, make sure to contact an attorney who can protect your rights if you believe that you have been a victim of a dog bite attack. And if you are bitten by a dog, unknown or known, make sure to contact the NYC Department of Health and Human Hygiene to report the attack.

Friday, September 11, 2015

Smith v. Roberts: Motor Vehicle Accidents, Surgeries, and Time Out of Work

In every motor vehicle accident case, an injury that leads to a surgery may not allow the plaintiff a full recovery. In the recent case of Smith v. Roberts decided by the 1st Department Appellate Division, the plaintiff only missed three days of work following the accident. The Court found that the year of work that the plaintiff missed following a surgery that was conducted several months after the accident did not contribute to the proving of a serious injury (in particular, the 90/180 day requirement) that is necessary for plaintiffs to seek recovery in motor vehicle accident negligence actions. Furthermore, the plaintiff was not able to prove a permanent consequential injury to the plaintiff's knee.

Anyone who has a potential motor vehicle accident case in New York City should immediately contact a personal injury lawyer who has experience dealing with no-fault and auto insurance companies to protect that person's rights. A small mistake can be the difference between recovery and dismissal during the motion and appeals process.

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