1st Department

Monday, May 2, 2016

Go-Kart Injuries are Especially Hazardous to Children

A go-kart injury can change your life. According to the U.
Read more . . .

Monday, November 16, 2015

1st Judicial Department, Appellate Division Roundup: November 5, 2015 Edition

In this edition of the Roundup, we're limited by only three personal injury related cases decided on November 5 - a medical malpractice, a workplace injury indemnification dispute, and a summary judgment motion on the slope of the interior floor of an apartment on a slip-and-fall.

Michael Ferrante v. Metropolitan Transportation Authority

Michael Ferrante is a "sandhog", someone who works in the tunnels beneath the city of New York. The law firm of Feldman, Kronfeld & Beatty often represent construction workers and those who have suffered injury from construction accidents. Here, Mr. Ferrante is working on a project connecting Metro North Station with Pennsylvania Station. One of the defendants, Kelley Engineered Equipement, LLC, designed a transporter used in that project. Mr. Ferrante was asked to stand on top of the transporter while it was carrying a roadheader, or a machine used to mine the tunnel. The transported tipped over, and Mr. Ferrante was injured. While this was a motion for summary judgment for Kelley to get out of the case, Mr. Ferrante's immediate employer, Dragados-Judlaw, may have been aware that the roadheader would be unstable unless loaded with its boom arm configured to offset any off-side on the load. Therefore, Kelley was not able to get out of the case.

Julio Anthony Lopez v. Vincent Gramuglia, DPM

Dr. Gramuglia, a podiatrist, is alleged in this case to have failed to diagnose a condition called "deep vein thrombosis" or DVT, a medical condition that caused plaintiff's pulmonary embolism. Mr. Lopez, the plaintiff, is alleging medical malpractice against the defendant doctor. The Court sides with the doctor, finding that the doctor did deviate from care in failing to account plaintiff's risk factors for developing DVT, since there was not evidence of the risk factors for the case at bar.

Jorge DaSilva v. KS Realty, LP

This is a unique case, because it involves a tenant suing the landlord for personal injury due to defects within the plaintiff-tenant's apartment. In this case, the plaintiff alleged that the sloping condition in his apartment caused his desk chair to roll on the hallway floor, which caused him to fall. The defendant was able to defeat the case on summary judgment because he had an expert who gave an opinion that the 4% slope in the area where plaintiff allegedly fell was not a dangerous condition and was not a proximate cause of the accident. The plaintiff's expert failed to address how the slope was a proximate cause of plaintiff's fall from his chair.

Wednesday, November 4, 2015

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

In this edition, the 1st Department takes a hard look at some rulings and verdicts at trial. 

Patricia Imperati v. David S. Lee, MD

This is a medical malpractice case, and an unusual reach by plaintiff's counsel. The plaintiff wanted to amend the complaint to allege a cause of action of wrongful death. Defense counsel, in opposition, submitted evidence that plaintiff was seriously ill before the alleged malpractice, and didn't die until nearly two years after the malpractice, with many procedures and care in between. The most important part, though, was that plaintiff's counsel failed to include an affidavit from a medical expert testifying that there was a causal connection between the death and the alleged malpractice despite the difference in time and treatment, and only included a conclusory assertion of the affirmation by plaintiff's counsel. The Court denied the amendment.

Helena Ashton v. EQR Riverside A, LLC

The plaintiff won a non-jury trial in Civil Court, which was reversed by the Supreme Court and the reversal was affirmed. The height differential between a recessed well, covered in carpeting, and the surrounding marble tile caused the plaintiff's fall. The plaintiff introduced evidence that the defendants created the condition by glying the carpet to the floor of the well, failing to install a drainage system under the well, and improperly maintained the carpet, causing the carpet to become matted. However, the plaintiff's expert did not examine the carpet that was present on the day of the accident and there was no evidence that the replacement carpet was identical, and the plaintiff's expert failed to cite any industry standard or authoritative treatise supporting his opinion concerning proper maintenance and design of the area. Therefore the Court found, as a matter of law, the plaintiff failed to meet their burden of proving that the defendant had constructive or actual notice of the defective condition.

Maria Sikora v. Earth Leasing Property Limited Liability Company

Constructive notice issues for freezing of the sidewalks has been an area of difficulty. When the sidewalk has been exposed to above-freezing temperatures for a long period of time, the Courts have usually found that the defendants did not have a responsibility to clear the sidewalks for snow and ice as it should have melted. However, here, because of the significant snow and ice buildup for the two weeks prior to the slip and fall and the comparatively short time frame in which it could have melted, the defendant did not show that the icy condition could not have been present at the time of plaintiff's fall. Furthermore, it did not present evidence as to the last time the sidewalk was inspected or written record of snow or ice removal; therefore, it could not meet the burden that even if it had snowed, it would have been cleared at the time of the plaintiff's fall.

William Davis v. Shana Turner

In this motor vehicle accident case, the defendant failed to rebut the plaintiff's showing that, as a matter of law, the defendant caused the accident by pulling out of a parked position and into a lane of moving traffic without making sure it was safe to do so in violation of the Vehicle and Traffic Law.

Santa Roman v. Sullivan Paramedicine, Inc.

After a jury verdict was entered finding that one of the defendants was 20% liable for the motor vehicle accident, the trial judge granted a motion to set aside the jury verdict as against the weight of the evidence and dismissed the complaint against that defendant. The Court reversed and reinstated the jury verdict. Since the defendant created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear-end collisions, and there was evidence that this defendant struck a vehicle in front of it in the rear, there was reason to reinstate the jury verdict. In short, in a three-car collision, the middle car can be held liable after striking another car in the rear if its car creates a "lane obstruction" and increases the risk of rear-end collisions, thereby getting rid of the standard rule that cars that are struck in rear-end collisions have no comparative negligence.

TRIAL EVIDENCE: Lisette Cruz v. City of New York

Elements of non-party witness statements in trial evidence were discussed here: 1) the identity of a witness used to lay the foundation of a non-party statement does not need to be disclosed during discovery in order to be called to testify during the trial; 2) a document which has a signature that a non-party witness admits "looks like hers" but denies signing the document may be introduced into evidence as a non-party statement, 3) non-party witness statements may be properly admitted, even if not provided in discovery, if there is no indication in the record that production of the statement was sought and refused.

STATUTE OF LIMITATIONS: John Kahegias v. Waldo Avenue Building

In this property damage action, a defective catch basin caused flooding on the plaintiff's property. However, the plaintiff first noticed the damage in 2006 and that is when the action accrued. But, since the flooding was a continuous wrong and gave rise to successive causes of action that accrued each time the wrong was committed, the plaintiff was only barred to recover from damage that was caused prior to the statute of limitations deadline.

Wednesday, October 28, 2015

1st Judicial Department, Appellate Division Roundup: October 20, 2015 Edition

In this threshold-case heavy selection from the First Department, we have one unusual case where Justices Tom and Andrias dissent on the question of what the defendant must show to make a prima facie case that they did not have constructive notice of a condition.  More, after the jump . . . 

Read more . . .

Wednesday, October 21, 2015

1st Judicial Department, Appellate Division Roundup: October 15, 2015 Edition

A short update, but unusual as it includes a split regarding a Labor Law motion. Check it out below:

Pedro Quinones v. Olmstead Properties, Inc.

 In this SPLIT opinion Labor Law 240(1) case, we will first address the facts, then the Court's findings and then the dissent's:

While painting over graffiti on a billboard, plaintiff lost his balance and fell. The billboard had a row of concrete blocks in front of it to prevent it from tipping over, and the plaintiff was standing on three of them to reach up to the top. He was loosening one of the straps that held the image to the frame so he could paint underneath it. He had been provided a cherry picker, a safety harness and landyard, and two ladders.

The Court found that the defendant had properly made a showing, by means of an expert, that the defendant had provided via testimony of an executive of the defendant's corporation that he had seen a worker using a cherry picker to change the billboard, and via expert submission that the plaintiff could have used the billboard's frameworks to tie off the landyard of the safety harness.

The dissent, however, found that the defendant executive's testimony didn't rise to the level of raising an issue of fact, as the testimony did not establish that the cherry picker that the executive had seen or the work that had been done using said cherry picker was the same as the plaintiff's situation. Furthermore, the dissent found as a matter of law that the expert's statements were conclusory as although the expert identified spots where the landyard could be tied off, the expert failed to include physical properties of those spots necessary to support plaintiff's weight if he fell and the steps he used to identify those spots. Therefore, the dissent found that the evidence adduced would not reach to the level of rebutting plaintiff's proof.

Robert McCullough v. One Bryant Park, et al.

This labor law and common-law negligence case involved a construction worker who was passing from an exterior roof to an interior room. He stepped into an uncovered "drain hole" and fell to the floor. The Court reversed the granting of summary judgment in favor of One Bryant against the plaintiff on two grounds. First, the doorway was considered a passageway for the purpose of proving a Labor Law 241(6) violation of 12 NYCRR 23-1.7(e)(1). Second, just because the defendants lacked supervisory control over plaintiff's work, they could not be dismissed from common-law negligence claims because the injuries arose from the condition of the workplace, rather than the method used in performing the work, and they failed to make a prima facie case showing that they lacked constructive notice of the uncovered drain hole.

Eduardo Velasquez v. MTA Bus Company

In this case, the plaintiff, on his bicycle, was struck when the defendant bus driver changed lanes. Even though the plaintiff was in the middle lane of traffic, and the bus driver was trying to switch to the left lane of traffic to pass the bicycle, by the defendant driver's own admissions it made a prima facie case of negligence and the plaintiff won on summary judgment.

Mark Walker v. Robert C. Whitney, III

In this threshold motion, the plaintiff's case was dismissed at the Supreme Court and affirmed by the Appellate Division. The defendant submitted reports of an orthopedist and neurologist who found full range of motion, and a radiologist which found degenerative diseases and no evidence of causally related injury. In opposition, the plaintiff failed to properly submit admissible evidence. The unaffirmed MRI findings, which would not be admissible anyways, failed to explain how mild hypertrophic changes of the AC joint could be explained by traumatic injury rather than degeneration. The medical records reviewed by defendant's experts in preparation for their exams were also properly held out. The only admissible evidence was a review by plaintiff's orthopedic surgeon shortly after his arthroscopy, which failed to provide measurements of the decreased range of motion in the left shoulder, and did not provide evidentiary support for a statement that plaintiff's shoulder condition was related to the accident, or address the defendants' experts that any shoulder injury was not due to ongoing pathology and degenerative changes.


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 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 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.

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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