Distracted Driving

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: January 5, 2013

An accident caused a man to retained a law firm to investigate and initiate a medical malpractice action

by Stephen Bilkis

A man suffered serious personal injury as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury. As a result, the attending surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

The Queens man retained a law firm to investigate and initiate a medical malpractice action against the various physicians. Although the man’s counsel considered joining the Staten Island Hospital physicians individually in the medical malpractice suit, for various reasons he decided not to join them and sent intent to sue only to the Hospital and Medical Center Regional and its physicians. When the complaint was filed, however, the Hospital was not named. During discovery, the man’s counsel realized that the Medical Center Regional’s defense was based upon the comparative fault of the Hospital and its physicians. At this point, the statute of limitations had expired, and the counsel realized the potential of a legal medical malpractice claim for failing to join them. The counsel contacted his insurance company. He also referred the man to a new counsel. The man settled with the Medical Center Regional and its physicians for $1,000,000, and then brought a legal medical malpractice action against his counsel and his firm, which the man’s 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 Hospital and each individual physician constituted independent wrongful acts or a single claim.

The man 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 his counsel committed multiple wrongful acts, he claimed that he was entitled to the aggregate limits. The counsel’s 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. Since there was only one claim, the man was entitled to only $250,000 in coverage. The trial court agreed with the man and on its motion for summary judgment, the court entered a judgment in favor of the man for the aggregate limits. The counsel’s insurance company appeals this judgment.

Published on: December 24, 2012

State Troopers in car chase

by Stephen Bilkis

A case against the State of New York was filed by the administrators of Tonya M. Hilliker’s estate. The claim was that two New York State troopers acted with “reckless disregard” in pursuing another vehicle. They allege that Ms. Hilliker of The Bronx died because of that recklessness. The car that they were chasing hit other vehicles. This happened on April 19, 2003 at approximately 2:30 A.M. in the City of Glens Falls.

In the evidence presented, it showed that Trooper Matthew Gilbert of Westchester was being closely followed by a white car. In the vehicle with him was Trooper Kevin Bouyea, who was sitting in the front passenger seat. The white car turned left from Main Street to South Western Avenue. The troopers continued to travel the main street and turned left onto Luzerne Road to see why the other vehicle was following them. A Lawyer mentioned that it was the time that the troopers noticed the white car heading straight toward them. It was going the opposite way on a one-way street. Trooper Gilbert avoided getting hit by pulling the patrol car on the side of the road. The white car passed them. In pursuit of the other vehicle, Trooper Gilbert made a U-turn and activated their emergency lights. The white car did not immediately turn on Broad Street. What the troopers did was to activate their siren. There was no evidence of traffic on Broad Street at the time of pursuit.

While on Broad Street, the speed of the white car was at 80-85 miles per hour, and the troopers were at 70 miles per hour when they were trying to get the plate numbers. They said that they slowed to about 50 miles per hour after getting the license plate as they were concerned about the safety if they continued that kind of chase. They lost sight of the vehicle for a few seconds after it turned at South Street. When they saw it again it was going into a bouncing stop. They exited their vehicle with guns drawn, said a Lawyer. At the scene Timothy Culligan said he was talking to Ms. Hilliker and Walter LaBarge. He was inside his car while the two were standing outside. This was when his car was struck by the white car. In the reconstruct, it was determined that the white vehicle was driving at least 82 miles per hour. For all the witnesses, they said that after the crash the police officers were immediately there about 10 feet away from the white car. This is contrary to the evidence of the lack of contact from the trooper’s vehicle, and that lack of skid marks made by the trooper’s car. Although, when the statement of Trooper Gilbert and Trooper Bouyea were compared there was a difference. A reporter got information that, Trooper Bouyea said he saw the white car hit other vehicles, which meant that they would have been near enough. There is also the undeniable knowledge of both troopers knew at that time, there are a lot of people in that area.

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 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 14, 2012

What is a serious injury in a car accident?

by Stephen Bilkis

A Westchester taxi company filed a request to grant them a decision without trial in dismissing the complaint against them on the ground that the complainant man failed to support a serious injury allegation. However, the complainant man filed a cross motion and for sanctions based upon the court’s prior ruling awarding him a decision without trial regarding the liability.

The action stemmed from the complaint of personal injury action filed by the man against the driver of the taxi, the taxi company and the owner of the taxi. The man alleged that he was stopped at the traffic light when the taxi hit into his vehicle. The driver of the taxi escaped and throughout the proceeding the driver’s location cannot be identified that’s why the taxi company was held vicariously liable for the driver’s negligence.

The taxi company argues that the man has failed to meet the legal requirements of a serious injury under the insurance law. Based on records, serious injury is defined as a personal injury which results in death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use of a body organ, member, function or system, permanent consequential limitation of use of a body organ, significant limitation of use of a body function or system, a medically determined 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 impairment.

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: 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 25, 2012

Summary Judgment is moved for by defendant

by Stephen Bilkis

This involves a motion where the court denied defendant’s prayer for summary judgment to dismiss the claim of plaintiff.

Plaintiff Bianca Watler and her mother commenced an action to recover damages for personal injuries allegedly sustained in a car accidentthat occurred on Prospect Street in Kings County on October 25, 1996. The accident allegedly happened when a vehicle driven by defendant struck the rear of a vehicle operated by plaintiff, which was stopped due to traffic conditions on Prospect Street. The bill of particulars alleges that plaintiff sustained various injuries as a result of the collision, including a bulging disc at level L5-S1 of the lumbosacral spine; lumbar radiculopathy; right knee sprain/strain; cervical and lumbosacral sprains/strains; and “cervical paraspinal myofascitis with discogenic radiculopathy.” It further alleges that plaintiff, who sought treatment at the emergency department of Brooklyn Hospital Center immediately after the accident, was confined to home for approximately six months due to her injuries.

Defendant moves for summary judgment dismissing the claim of plaintiff on the ground that she is precluded by Insurance Law §5104 from recovering for non-economic loss, as she did not sustained a “serious injury” within the meaning of Insurance Law §5102 (d).