Hit and Run

Published on: June 26, 2024

Nationwide’s denial of UM/SUM claim questioned in subway moped case. Nationwide Gen. Ins. Co. v. Faulkner 2024 N.Y. Slip Op. 30985 (N.Y. Sup. Ct. 2024)

by Stephen Bilkis

In a recent legal proceeding under CPLR 7503, Nationwide General Insurance Company sought a permanent stay of arbitration concerning the injured’s claim for uninsured motorist (UM)/supplementary underinsured motorist (SUM) benefits. Faulkner, the injured, contested the petition. Faulkner alleged she sustained injuries on November 15, 2022, from a hit-and-run moped incident at the New York City subway’s Times Square station, leading to a denial of her claim under John C. Faulkner’s Nationwide policy.

In New York, Uninsured Motorist benefits provide coverage to policyholders when they are involved in an accident caused by an uninsured or hit-and-run driver. This coverage helps pay for medical expenses, lost wages, and other damages that result from the accident. UM benefits are important as they ensure that victims of accidents with uninsured drivers can still receive compensation for their losses, despite the at-fault driver’s lack of insurance.

Supplementary Underinsured Motorist benefits in New York extend coverage beyond the limits of the at-fault driver’s insurance policy. If the at-fault driver’s insurance coverage is insufficient to cover the full extent of the victim’s damages, SUM benefits can provide additional compensation up to the limits of the policyholder’s SUM coverage. This coverage becomes important in cases where the damages exceed the limits of the at-fault driver’s insurance, ensuring that victims receive adequate compensation for their injuries and losses.

Published on: June 26, 2024

Court grants hearing on timely reporting in hit-and-run case. In re Progressive Ins. Co. v. Otero 2023 N.Y. Slip Op. 51319 (N.Y. Sup. Ct. 2023)

by Stephen Bilkis

In re Progressive Ins. Co. v. Otero 2023 N.Y. Slip Op. 51319 (N.Y. Sup. Ct. 2023) involves a hit-and-run accident that occurred on March 9, 2023. The case highlights the complexities surrounding uninsured motorist claims and the procedural steps in dealing with hit-and-run incidents in New York.

Background Facts

On March 9, 2023, the respondent was driving his vehicle when he was involved in a hit-and-run accident at the intersection of Oranite Avenue and Lasalle Street in Richmond, New York. Following this incident, the respondent sustained injuries severe enough to meet the criteria of a “serious injury” under NY CLS Ins § 5102. Immediately after the accident, the respondent was admitted to Richmond University Medical Center, where he stayed until March 11, 2023, due to his injuries, which prevented him from filing a police report at that time. Nevertheless, he managed to file a MV-104 report on March 12, 2023.

Published on: June 26, 2024

Passenger seeks damages after bus hit by unidentified SUV. Guity v. Cnty. of Westchester 2019 N.Y. Slip Op. 34310 (N.Y. Sup. Ct. 2019)

by Stephen Bilkis

In Guity v. Cnty. of Westchester 2019 N.Y. Slip Op. 34310 (N.Y. Sup. Ct. 2019), Plaintiff Beron Guity sought damages for injuries sustained in a bus accident on June 1, 2016, involving an uninsured motorist. Uninsured motorist coverage is a type of car insurance designed to protect drivers and passengers from financial loss when involved in an accident with a driver who is either uninsured or cannot be identified, such as in a hit-and-run incident. This coverage steps in to pay for damages like medical expenses, lost wages, and pain and suffering that would normally be paid by the at-fault driver’s insurance. It helps ensure that individuals receive necessary compensation even when the other party fails to carry adequate insurance, providing a layer of financial security in many unpredictable driving scenarios.

Background Facts

On June 1, 2016, while traveling on the northbound Sprain Brook Parkway in the Town of Greenburgh, New York, a Liberty Lines Transit bus, operated by Yeritza Vasquez and owned by the County of Westchester, was involved in an accident. The onboard video system recorded the incident. The bus was in the center lane when an SUV, moving faster than the bus from behind, swerved from the left lane to avoid a stopped vehicle and collided with the bus. The SUV driver fled the scene, making this a hit-and-run accident. The plaintiff, Beron Guity, a passenger on the bus, sustained injuries during this incident and filed a lawsuit seeking damages, attributing negligence to the bus driver and seeking uninsured motorist coverage from Liberty Lines Transit. The County Defendants acknowledge the accident but contest the negligence claim arguing that the accident was solely caused by the unidentified hit-and-run SUV, not by any action of the bus driver.

Published on: March 10, 2013

In support of their motion, the opponents submitted the affirmed medical report

by Stephen Bilkis

This is an action for personal injury in which a Bronx man alleges that he sustained an injury as a result of a motor vehicle accident. A vehicle owned by a cab cormpany struck the man’s vehicle in the rear. The man claims that as a result of the accident he sustained spine injury, back pain, muscle spasms in lumbar spine and radiculopathy. The opponent however requests to dismiss the case agasint them on the ground that the man failed to meet the serious injury threshold.

In support of their motion, the opponents submitted the affirmed medical report of a radiologist who reviewed the MRI of the man’s thoracic spine. The opponent also submitted the affirmed medical report of a board certified neurologist and the man’s deposition testimony.

The Westchester radiologist found a scoliosis and diffuse degenerative changes of the thoracic intervertebral discs of the man and concluded that the small posterior disc protrusions present are of uncertain age and etiology and may be degenerative in nature.

Published on: March 3, 2013

Passengers are injured in Car Accident

by Stephen Bilkis

This action arises out of an automobile accident. It is alleged that at the time of the accident, the complainant man was the driver of a motor vehicle in which the complainant women were passengers; and that the complainants’ vehicle was rear-ended by the defendants’ vehicle.

Under the no-fault law, in order to maintain an action for personal injury, a complainant must establish that a serious injury has been sustained. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on the defendants to establish, by the submission of evidentiary proof in admissible form, that the complainant man has not suffered a serious injury. When a defendant’s motion is sufficient to raise the issue of whether a serious injury has been sustained, the burden shifts and it is then incumbent upon the complainant to produce legitimate evidence in admissible form to support the claim of serious injury.

In support of a claim that the Westchester complainant has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physician or the unsworn reports of the complainant’s examining physician. Once the burden shifts, it is incumbent upon the complainant, in opposition to defendant’s motion, to submit proof of serious injury in admissible form. Unsworn reports of the complainant’s examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician’s personal examination and observations of the complainant is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a complainant’s serious injury. Unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a legitimate case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician’s own examination, tests and observations and review of the record rather than manifesting only the complainant’s subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the Civil Practice Law and Rules to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice.

Published on: February 24, 2013

Serious injury is questioned in a car accident case

by Stephen Bilkis

This is a case resolving the motion filed by the defendant for a summary judgment on the ground that plaintiff did not suffer any “serious injury” in the car accident which preceded the filing of this instant case. The defendant alleged that the injuries suffered by the plaintiff do not belong to the same category as that which was defined under the New York State Insurance Law. Plaintiff was not able to submit any opposition to the motion.

This case sprang from the incident which occurred on April 8, 2010 in Westchester wherein the parties were involved in a motor vehicle accident which led to the injuries sustained by the plaintiff. According to the plaintiff, he sustained the following damages: partial tear of the left shoulder and spinal injuries.

Under the law, it is required that the movant for a motion for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. He must be able to establish his claim by tendering evidence to prove that the court must decide in his favor.

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 10, 2013

Taxi Involved in Car Accident

by Stephen Bilkis

This action was instituted by the plaintiff for alleged personal injuries sustained in a motor vehicle accident occurring on January 27, 2003 at approximately 12.21 a.m. on Barton Avenue at or near its intersection with Valley Road in Patchogue, Suffolk County on Long Island, New York. A source said that, the plaintiff alleges that the defendant taxi company, being driven by co-defendant, attempted to make a left turn from Barton Avenue, eastbound, onto Valley Road without signaling and came into contact with the plaintiff’s vehicle which was proceeding straight on Barton Avenue in a westerly direction. The plaintiff claims she hit the steering wheel and was bleeding from her left knee. This lawsuit thereafter ensued.

A Lawyer said that, the defendants now move for summary judgment pursuant to CPLR §3212 dismissing the plaintiff’s complaint on the grounds that the plaintiff has not sustained a “serious physical injury” as that term is defined in Insurance Law §5102(d). The defendants submit medical proof to substantiate their claim that the plaintiff failed to sustain a “serious injury” in the car accident. The plaintiff opposes the requested relief in an attorney’s affirmation arid submission of the plaintiff’s deposition but proffers no medical proof to substantiate the claim of a “serious physical injury”.The issue in this case is whether plaintiff sustained serious personal injury as defined under the Insurance Law.

The function of the Court on a motion for summary judgment is issue finding not issue determination. It is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is `arguable; `issue finding, rather than issue determination is the key to the procedure.

Published on: January 24, 2013

Surgery Keeps Woman Out of Work

by Stephen Bilkis

A woman was driving her car sometime on June 10, 2005. She was involved in a vehicular accident. The impact caused her neck to snap back and her entire body was shaken violently. She lost consciousness and she was taken to the hospital by the emergency services. She experienced excruciating pain in her neck and left shoulder. An x-ray was taken of her and she was observed overnight in the hospital. The next day she was discharged but was advised to go for follow-up a neurologist. The woman experienced tingling and numbness from her back to her hips and from her shoulders to her fingers. Her neurologist advised her to undergo physical therapy.

The physical therapy alleviated the tingling sensation somewhat but the numbness persisted. The neurologist referred her to a neurosurgeon who advised her to undergo surgery on her spine. The woman was afraid of having any surgery on her spine so she went to a chiropractor instead.

Until the trial, the Queens woman testified that her arms, shoulders and hips become numb when she holds a position for a long period of time. She has trouble turning her neck and she has trouble lifting things. The woman is a nurse who works with newborns. She assists in deliveries of infants and she also cares for newborns in the intensive care unit. Her work involves standing for long periods of time which she now finds difficult to do without experiencing pain and numbness.

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.