Nassau

Published on: January 14, 2013

Accident on LIE Causes Personal Injury

by Stephen Bilkis

This is an action to recover damages for personal injuries allegedly sustained by plaintiff wife as a result of a motor vehicle accident that occurred on the westbound Long Island Expressway, approximately 500 feet west of South Oyster Bay Road, in the County of Nassau. New York on May 13. 2008. The accident allegedly occurred when the vehicle operated by defendant and owned by the other defendant struck the rear of the vehicle operated by plaintiff husband while it was stopped in traffic. Plaintiff at the time of the accident was a front seat passenger in the vehicle operated by her husband,. By her bill of particulars, plaintiff alleges that she sustained various personal injuries as a result of the subject accident, including straightening of the cervical and lumbar curvature; disc bulges at levels C3 through C6 and level L4-L5; vertebral subluxation complex; and derangement of the left shoulder. Plaintiff alleges that she was confined to her bed and home for approximately two days immediately after the accident. Plaintiff further alleges that she was totally incapacitated from her employment as a registered nurse at the Hospital for approximately three days following the car accident and continues to be partially incapacitated from her employment to date.

A report said that, defendants now move for summary judgment on the basis that plaintiffs alleged spinal injuries do not meet the “serious injury” threshold requirement of Insurance Law § 5102(d). In support of the motion, defendants submit a copy of the pleadings, plaintiffs’ deposition transcript, and the sworn medical reports of the doctors. At defendants’ request, a neurologist, a chiropractor, and a physiatrist licensed in medical acupuncture, conducted independent examinations of plaintiff on September 23, 2008. A Lawyer said that, plaintiff opposes the instant motion on the ground that defendants failed to meet their burden of establishing that her injuries do not come within the meaning of the serious injury threshold requirement of Insurance Law § 5102(d). Alternatively, plaintiff asserts that she sustained spinal injuries within the “limitation of use” and the “90/180 days” categories of serious injury as a result of the accident. In opposition to the motion, plaintiff submits her own affidavit, the affidavit of her treating chiropractor, , and the sworn medical reports of her doctors.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

Published on: December 17, 2012

Where are trials held?

by Stephen Bilkis

When a vehicle has been involved in a traffic accident, it is not uncommon for issues relative to the ownership of the vehicle to play a part in the venue of the hearing. Venue is the location in which the court will conduct any hearings relative to the case at hand. In order for the court to determine an appropriate venue for a case, it generally takes several items into consideration. Most of the time, such as in criminal trials, the venue for the case is the location where the incident occurred. If a robbery happens in Brooklyn, New York, then the Superior Court of Kings County and not the Superior Court of Queens County will hear the case. However, in civil cases and Family Court, the rules about Venue are much more flexible. Rather than being relative to a particular incident location, it is generally based on the county of domicile for one or both of the participants. If the case involves a business, it is much more likely that the case will be tried in the court that is located in the county where the business maintains its main base of operations.

On October 1, 1982, a traffic accident occurred in the Village of Freeport in Nassau County. The passenger in one of the vehicles, filed a personal injury lawsuit. She named the business that the other driver worked for in her lawsuit. The truck that the man was driving was owned by a business that had their primary offices in Kings County. The business had leased the truck from a truck leasing company that operated out of Nassau County. While the case was waiting for trial, the headquarters of the company moved from Kings County to Nassau County.

Originally, the venue for the car accident case was set for Kings County where the business headquarters was located. Following the move of the business from Kings County to Nassau County, the owner filed a motion to change the venue of the case from Kings County to Nassau County. Originally, the court denied the motion. The owner of the business filed an appeal of the decision.

Published on: December 7, 2012

Brain and spinal injuries qualify as serious injuries

by Stephen Bilkis

On July 23, 2007, a man was sitting at the traffic control light located at Greenwich Street and Jerusalem Avenue in Nassau County, New York when another vehicle hit his. The other vehicle made contact with his vehicle in a same direction side swipe manner. As the vehicle was driving past his in the same direction, it swerved and the offending vehicle swept up the passenger side of the man’s car from the rear passenger side area to the front. The man filed a personal injury and 90/180 case against the driver of the other vehicle.

In order for a person to claim a serious person injury under the auspices of the New York Insurance Law, they must be able to prove that they suffered an injury that was invasive enough to alter their normal everyday lifestyle. In order to make that statement, the injured person must be able to demonstrate through medical records that they have sustained either a permanent loss of use, or partial percentage loss of use of a member of their body.

Alternatively, they can show a brain injury or spinal injury that is severe enough to have altered their lives and receives treatment. They may also file a 90/180 claim that contends that although they recovered from their injuries, they were incapacitated by them for 90 out of the 180 days that immediately followed the car accident. It is important that the injured person is able to demonstrate that they have been continually under the care of a doctor from the time of the accident until the time that they filed their suit. The court has been known to dismiss a gap in treatment for legitimate reasons if it can be properly documented.

Published on: December 3, 2012

Improper repair of a tire causes van accident

by Stephen Bilkis

On August 24, 2002 nonparty driver was driving a van with eight passengers, one of whom was an adult and seven of whom were children. While driving on a divided highway in Pennsylvania, the driver lost control of the van when the right rear tire blew out. During the resulting crash, the van barrel-rolled across the median and became airborne before landing in the lanes of oncoming traffic. All of the children were ejected from the van and sustained varying degrees of injury. The adult passenger, who remained in the vehicle, died. The appellant lawyer was retained to litigate an action on behalf of the estate and the husband of the deceased, and on behalf of these five infant passengers.

Appellant based her action upon conclusion that the tire at issue had been improperly repaired and was not the proper size for the van. Second, she concluded that the van had a faulty liftgate latch, which allowed the liftgate to open during the car accident. Consequently, she named the manufacturer of the van as a defendant.

Appellant lawyer requested an award of an attorney’s fee in a sum consistent with her retainer agreement, representing one third of the net settlement from the manufacturer of the van and 25% of the net settlement from the driver’s insurer. The Supreme Court approved so much of the proposed infant’s compromise order as concerned the amounts recovered by the infant plaintiffs, but awarded appellant lawyer an attorney’s fee in a sum representing approximately 25% of the aggregate net settlement. The lawyer appealed.

Published on: November 30, 2012

Suffolk Court rules on evidence in car accident

by Stephen Bilkis

This is a case where the court ruled that the motion by plaintiff for summary judgment on the issue of liability or fault but not as to serious injury is granted. However, the cross motion by defendant for summary judgment dismissing the complaint on the grounds that plaintiff has failed to sustain a “serious injury” within the meaning of Ins. Law §5102 is denied.

This is an action arising out of a hit in the rear car accident that occurred on May 15, 2003, on Glen Cove Road at or near Pound Hollow Road, Nassau County. Plaintiff was struck in the rear by defendant’s vehicle while stopped for a red traffic light. There is no claim that plaintiff had made any short or sudden stop or turn. Plaintiff’s examination before trial testimony states that plaintiff’s vehicle was stopped for a red traffic light. As the light turned to green but before he began his forward motion, plaintiff’s vehicle was struck in the rear by a vehicle driven by the individual defendant and owned by the corporate defendants. Defendant testified that at the time of the car accident, plaintiffs vehicle was stopped, his view was unobstructed and there was nothing that prevented him from coming to stop before hitting plaintiffs vehicle. Although defendant posits that plaintiff testified that the traffic light had turned to green as the impact occurred, it is clear that his foot was still on the brake and that he had not begun to move.

According to the Suffolk court, there is no competent evidence to dispute plaintiff’s evidence that defendant’s vehicle struck the plaintiffs vehicle in the rear. The submission in support of the motion by plaintiff has established entitlement to judgement thus shifting the burden to defendant to rebut the motion by submitting proof in evidentiary form showing the existence of triable issues of fact. Here the defendant has failed to establish the existence of triable issues of fact on the issue of liability or fault and the Court finds no material fact issues requiring a trial with respect to the issue of fault.

Published on: November 10, 2012

The plaintiffs agreed that there is a necessity for regulation of the tow car industry

by Stephen Bilkis

In this case, the Court ruled that Section 12.0 of Ordinance No. 40 of the Town of Hempstead entitled “Operation of Tow Cars” is valid and constitutional.

The plaintiffs are in the tow car business and are licensed tow car operators in the Town of Hempstead in Nassau. The Plaintiff is seeking to declare certain sections of Ordinance No. 40 of the Town of Hempstead entitled ‘Operation of Tow Cars’ unconstitutional and void and to enjoin any action and enforcement thereunder.

The plaintiffs agreed that there is a necessity for regulation of the tow car industry. They contend, however, that section 12.0 is prohibitory, not regulatory, and therefore unconstitutional.

Published on: October 15, 2012

The owner and driver of the BMW asserts that the woman did not suffer

by Stephen Bilkis

On June 10, 2007, a woman, driving a Nissan was rear-ended by a BMW as it was stopped at the intersection of Merrick Road and East Shore Drive in Nassau. As a result of this car accident the woman sustained a spinal injury: she had swollen discs and a severe sprain of the lumbar spine. She asserts that two weeks after the accident occurred, she was ordered to rest in bed by her doctor. She was also confined to her home and could not go to work until after another four weeks.

She claims that after the car accident, she could no longer play volleyball or do gardening. She cannot stand or sit for more than thirty minutes. Fifteen months after the accident, the woman joined a local gym where her favourite workout was on the recumbent bicycle.

The defendant owner and driver of the BMW that allegedly rear-ended her Nissan filed a motion for summary judgment. He claims that the complaint should be dismissed because the woman failed to state that the spinal injury she sustained is a serious injury. She also failed to state which classification of serious injury she falls under. There are five categories of serious injury under the Insurance Law: death, dismemberment, significant disfigurement, fracture or loss of a fetus, total loss of use of a body organ, function or system.

Published on: October 13, 2012

After the plaintiff submitted its medical evidence,

by Stephen Bilkis

This involves a case where the court ruled that plaintiff failed to demonstrate a prima facie case that he suffered serious injury within the meaning of Insurance Law Section 5102 (d).

Plaintiff, age 24, alleged that on August 21, 2006, at approximately 11:20 a.m., a motor vehicle owned and operated by him came into contact with a vehicle owned by defendant owner and operated by defendant driver. The car accidentoccurred on Old Country Road, at its intersection with Frost Street, County of Nassau, Long Island. Defendants moved for an order dismissing plaintiffs complaint pursuant to CPLR §3212, on grounds that plaintiff failed to sustain a “serious injury” within the meaning of Insurance Law §5102(d).

Insurance Law §5102(d) provides that a “serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (numbered by the Court). The Court’s consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body function or system.

Published on: October 10, 2012

Locustwood

by Stephen Bilkis

This involves a case where the court ruled that plaintiff did not sustain a “serious injury” contemplated under New York State Insurance Law § 5102(d).

A car accident occurred on January 30, 2008, at approximately 8:15 a.m., at or near the intersection of Hempstead Turnpike and Locustwood Boulevard, Elmont, Nassau County, Long Island. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike. Plaintiff claimed that she looked before crossing and did not see any vehicles on Locustwood Boulevard making a turn onto Hempstead Turnpike. Plaintiff further claimed that, as she was crossing Hempstead Turnpike, she was struck in the rear, specifically her lower back, by the front of defendant’s vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced an action by the filing a Verified Complaint for spinal injuries sustained.

Defendant argued that plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendants vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment.

Published on: October 6, 2012

Based upon this evidence, the Court found that defendant has established a prima facie

by Stephen Bilkis

This involves a case wherein the Court ruled that plaintiff’s injuries did not suffer a “serious injury” in the accident as defined by New York State Insurance Law which led for an order granting defendant summary judgment.

Plaintiff commenced the action against defendant allegedly for personal injuries sustained by plaintiff as a result of a car accident with defendant which occurred on November 20, 2009, at approximately 7:51 p.m., at or near the intersection of Guinea Woods Road and Jericho Turnpike, Old Westbury, County of Nassau, State of New York. The accident involved a 2008 Chrysler owned and operated by plaintiff and a 2003 Volkswagen owned and operated by defendant. It is plaintiff’s contention that the car accident occurred when defendant’s vehicle struck plaintiff’s vehicle in the aforementioned intersection when, defendant’s vehicle, while speeding, made a left turn in the intersection and failed to yield the right of way.

Defendant argued that plaintiff’s medical records establish that plaintiff had a preexisting medical history of lower back pain that pre-dates and is unrelated to the subject accident. Defendant submits that, on January 22, 2004, almost six years prior to the subject accident, plaintiff went to a physician with complaints of back pain from the proceeding year and admitted that the condition originated five to six years earlier. Defendant added that the medical records of plaintiff’s treating physician, further showed that plaintiff had pre-existing spinal injury, lumbar stenosis and pain of his lumbar spine for which he was treating from 2004 through 2006 and again in 2009 prior to the subject car accident.