Thursday, October 15, 2015

2d Judicial Department, Appellate Division Roundup: October 7, 2015 Edition

This is a particular exciting edition of the Roundup, as there are three big cases dealing with complicated issues, including one involving a multi-million dollar verdict for the plaintiffs. There are several cases having to deal with threshold and serious injuries in motor vehicle accidents, as well as a number of cases dealing with bread-and-butter litigation issues. We'll explore more, after the jump . . . 

Read more . . .

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.

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