New York City

Published on: February 17, 2013

Accident Occurs on Southern State Parkway

by Stephen Bilkis

This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A source said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Spine Injury Lawyer said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Published on: February 13, 2013

Traffic Light in Question in Huntington

by Stephen Bilkis

This action is for personal injuries alleged to have occurred as a result of a motor vehicle accidentinvolving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Suffolk reporter said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the car accident.

A doctor said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, “owned operated and controlled” the traffic signal at the subject intersection. A Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.

A Lawyer said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a source said that defendant argues that plaintiff has not satisfied the “serious injury” threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff’s alleged soft tissue spinal injuries do not constitute a serious injury.

Published on: February 6, 2013

Accident at Jewel Avenue

by Stephen Bilkis

This action arises from a motor vehicle accidentwhich occurred on September 19, 2008, at approximately 5:30 p.m., in the eastbound lanes of the Grand Central Parkway, Queens, New York, at or near its intersection with the Jewel Avenue Exit. The accident involved a 2005 Porche Boxster owned and operated by plaintiff and a 1986 Volvo Station Wagon owned by defendant and operated by defendant driver. Plaintiffs commenced this action by the filing and service of a Summons and Verified Complaint.

A source said that, it is plaintiff’s contention that the accident occurred when his vehicle, moving slowly in stop and go traffic on the Grand Central Parkway, was struck in the rear by defendants’ vehicle. Plaintiff claims that defendant driver admitted at his Examination Before Trial (“EBT”) that he did not see plaintiff’s vehicle until the moment of collision and offered no explanation for said collision other than his failure to pay attention to the road. Plaintiff claims that defendant driver was the negligent party in that he failed his duty to exercise reasonable care under the circumstances to avoid an accident. Plaintiff additionally claims that defendant driver cannot come up with a non-negligent explanation for striking plaintiff vehicle in the rear.

A Lawyer said that, in opposition to plaintiffs’ motion, defendants argue that, at his EBT, defendant driver testified that there were no brake lights illuminated on plaintiff’s vehicle just before the accident. Plaintiff submits that there is therefore an issue of fact as to the circumstances surrounding the accident and plaintiff’s motion should be denied. Defendants assert that a factual issue remains as to the extent that plaintiff’s comparative fault contributed to the happening of the subject accident by virtue of his failure to exercise ordinary prudence and to use such care to avoid the collision as an ordinarily prudent person would have under the circumstances.

Published on: January 12, 2013

Injured Party was taken to a Medical Center where he was evaluated

by Stephen Bilkis

An automobile accident occurred and, as a result, the appellee suffered serious injuries. He was taken to a Medical Center where he was evaluated by several NYC physicians, including a surgeon, an orthopedist, and a radiologist. However, these physicians misinterpreted appellee’s x-rays and radiological studies, and negligently concluded that he did not suffer a recent spinal injury, specifically a spinal column injury. Consequently, the attending surgeon and assistant encouraged appellee to attempt to walk approximately a week after the automobile accident. When he arose from the bed, appellee felt a shock and collapsed. He was then transferred to another Medical Center, a Regional Medical Center (second Medical Center), where he underwent surgery on his spine, but the surgery was not successful in reversing the spinal column damage, the spinal injury. The appellee then retained a lawyer of a certain law firm to investigate and initiate a legal malpractice action against the various physicians. The lawyer considered joining the physicians individually in the malpractice suit but, for various reasons, he decided not to join. He sent an “intent to sue” only to the two Manhattan Medical Centers and its physicians. However, when the complaint was filed, the first Medical Center was not named. Thereafter, during discovery, the lawyer realized that the second Medical Center’s defense was based upon the comparative fault of the first Medical Center and its physicians. At this point, the statute of limitations had already expired, and the lawyer realized the potential of a legal malpractice claim for failing to join them. Thus, the lawyer then contacted his insurance company and referred the appellee to a new counsel.

The appellee and the second Medical Center, and its physicians, entered into a settlement agreement in the amount of $1,000,000, and then brought a legal malpractice action against the lawyer and his firm, which the Insurance Company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the “aggregate” amount applied. Specifically, the parties disputed whether the attorney’s failure to name the first Medical Center and each individual physician constituted independent wrongful acts or a single claim. So, the appellee filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because the lawyer committed multiple wrongful acts, the appellee claimed that he was entitled to the aggregate limits. The Insurance Company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act; that, since there was only one claim, the appellee was entitled to only $250,000 in coverage. The trial court agreed with the appellee and, on motion for summary judgment, entered a judgment in favor of the appellee for the aggregate limits. Based upon its interpretation of the policy, the trial court found that there were several acts of malpractice during the legal representation of appellees. Thus, the trial ruled that the appellees were entitled to the aggregate policy limits. The Insurance Company now appeals the said judgment.

The issues for the court’s determination is whether or not, pursuant to the insurance policy of the law firm the aggregate policy limit should apply where the appellee’s attorney committed multiple wrongful acts by failing to join several defendants in his medical malpractice action; whether or not, because each of the defendants had separate insurance coverage available to pay a damage award, appellee had multiple claims against his attorney.

Published on: December 19, 2012

Plaintiff’s reports are insufficient to show whether plaintiff sustained serious injury

by Stephen Bilkis

This action stems from personal injuries allegedly sustained by plaintiff as a result of a car accidentwith defendant which occurred on May 30, 2008, at approximately 7:35 a.m., at or near the intersection of Old Country Road and Sweet Hollow Road, Huntington, County of Suffolk, State of New York. The accident involved two vehicles, a 2005 Mitsubishi truck operated by plaintiff and owned by his employer,and a 2006 Chevrolet owned and operated by defendant.

Plaintiff contends that his vehicle was stopped for a red traffic signal at the aforementioned intersection and, when said traffic signal turned green for vehicles traveling eastbound through the intersection, plaintiff proceeded through said intersection. As plaintiff was driving through the intersection, defendant went through a red traffic light at the intersection and his vehicle collided with plaintiffs vehicle. As a result of the collision, plaintiff claims that he sustained serious injury.

Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting him summary judgment on the ground that plaintiff did not suffer a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes the motion.

Published on: December 12, 2012

A third party defendant get Summary Judgment ruling

by Stephen Bilkis

This action is for personal injuries alleged to have occurred as a result of a motor vehicle accident involving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Personal Injury Lawyer said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the accident.

A Lawyer said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, “owned operated and controlled” the traffic signal at the subject intersection. A Suffolk Personal Injury Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.

A source said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the car accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a doctor said that defendant argues that plaintiff has not satisfied the “serious injury” threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff’s alleged soft tissue spinal injuries do not constitute a serious injury.

Published on: December 10, 2012

The only question before the trial court was whether or not the summary judgment

by Stephen Bilkis

On March 16, 2003, two cars were involved in a head-on collisionin an expressway in Brooklyn, New York. Both the drivers of the two cars claimed damages for serious spinal injuries they allegedly sustained. Both claim that they lost the function of their lumbar or cervical spine. Both claimed bulging discs at the cervical spine, herniated discs at the lumbar spine, sprain and nerve damage. The drivers sued each other as well as their insurers for damages.

Both submitted magnetic resonance imaging scans which their medical experts used as basis to find that there were degenerative changes in the cervical and lumbar spine which show herniation (swelling).

However, the medical reports issued by the examining neurologist at the time of the accident only found the two drivers to be suffering from cervical and thoracic spinal sprain and right shoulder sprain. In the weeks that followed the accident, the same attending neurologist made follow-up reports of the development of the injuries sustained by both the drivers and reported that the spinal sprains have resolved themselves. Even the sprain in the right shoulder and right arm were also resolved. This is evidence, according to the insurers, that neither driver sustained serious injury such that they can be compensated under the Insurance Law. There is no evidence that links their injuries as caused by accident.

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 5, 2012

NY TA bus in an accident with a car

by Stephen Bilkis

This involves a case where the court denied the motion of the defendants for summary judgment to dismiss the case against them.

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus driven by its employee made contact with a motor vehicle driven by defendant driver and owned by owner. Plaintiff was a passenger in defendant driver’s vehicle. By decision and order dated September 16, 2008, the court granted defendant owner’s motion to dismiss the complaint and any cross claims in this action as against it. (Martorella Affirm, dated 3/18/11, Ex E.)

The bill of particulars alleges that, as a result of this alleged car accident, plaintiff sustained herniated discs at C4-C7, and L5-S1, and injuries to his right hip, right arm, right shoulder, neck and back, some of which are believed or may be permanent in nature. (Martorella Affirm, dated 3/18/11, Ex C [Bill of Particulars ¶ 6].) In August 2008, plaintiff, who was represented by a law firm, apparently decided to represent himself. (Martorella Affirm, dated 3/18/11, Ex D.) Plaintiff testified at his deposition that, at the time of the accident, he was employed by Gotham Registry, a nursing agency, working per diem as a licensed nursing assistant.

Published on: November 18, 2012

Court rules on DWI

by Stephen Bilkis

A personal injury action arises out of a motor vehicle accident that occurred at the intersection of Oceanside Road and Erwin Place in Oceanside, New York. Among other injuries, the woman suffered a traumatic brain injury.

On June 30, 2010, the Court denied the opponents’ motions for summary judgment to dismiss the woman’s complaint. The Court determined that, as the woman had yet to testify at her sworn examination before trial, the accused men’s motion for summary judgment must be denied as premature. The Court also determined that because both accused men have failed to demonstrate that the Town of Hempstead Building Zone Ordinances do not apply to them, the motion and cross motion must be denied. Finally, the Court also held that, because the driver’s operation of his motor vehicle while under the influence of alcohol arguably may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the accused men’s motions for summary judgment to dismiss the woman’s action based in negligence must be denied.

The core of the Queens woman’s allegations against the accused men relates to certain bushes located between the residences, which bushes are alleged to block the view of traffic. The woman alleges that the overgrown nature of the bushes, which she claim are in contravention of height requirements provided in local ordinances, contributed in some measure to the occurrence of the serious traffic accident.