Court of Appeals

Monday, January 4, 2016

Court of Appeals Alert: Hospitals & Doctors Can Be Responsible for Motor Vehicle Accidents Caused by their Patients

When a loved one is hurt or killed in a motor vehicle collision, a common and reasonable step to take is to explore options for possible claims. Since hospital bills, reduced income, and sometimes, sadly, funeral expenses, put great hardships on friends and family, those who have been victimized by negligent drivers or others look to find balance. New York Courts, including the New York Court of Appeals, function as a gatekeeper to whom may be held responsible for a loved one’s injury. And often, they can help us understand the complexities of these injuries in modern day life. The case of Edwin Davis v. South Nassau Communities Hospital, recently decided by the New York Court of Appeals, is a signal case to this cause. More, after the jump . . .

Read more . . .

Wednesday, October 21, 2015

Court of Appeals Alert: Trivial Defects Discussed in Depth in Hutchinson

On October 15, the Court of Appeals had a huge and in-depth discussion of three trip-and-fall personal injury cases that arrived on its docket on a motion for summary judgment for the triviality of the defect. In discussing the defect, the Court gave practitioners a good perspective on future slip and fall cases. To summarize, the Court gave three clarifying notes:

1)  The triviality of a defect does not have to do with its height or other physical characteristics so much as it has to do with whether its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses.

2) The relevant question is not whether the defect is capable of being a trap, but whether the defect was difficult to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.

3) The defendant must make a prima facie showing of the triviality of the defect as a matter of law.

More, after the jump . . .

Read more . . .

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.

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.

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