Hit and Run

Published on: January 2, 2013

The opponent woman moves for summary judgment

by Stephen Bilkis

This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a laborer for a Bronx construction company, and that he missed 11 days of work due to his spine injuries.

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.

The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

Published on: December 29, 2012

The man retained a law firm to investigate and initiate a medical malpractice action

by Stephen Bilkis

A Manhattan man suffered serious 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 Westchester 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 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 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.

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: 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 17, 2012

The orthopedist also affirmed that the woman is partially disabled

by Stephen Bilkis

A complainant woman commenced an action for her claimed of personal injuries resulting from a motor vehicle accident.

According to the woman’s statement, after the car accident the police responded to the scene but an ambulance did not arrive. The Queens woman then exited her vehicle unassisted, without any pain in any part of her body and was capable of driving her vehicle from the scene to her workplace. The woman testified that she first sought medical attention when she felt some pain in her lower back and headaches. X-ray examinations were taken and chiropractic treatment was rendered by a physician. She further testified that she was treated by the same physician regularly until the winter and eventually discontinued the treatment. Thereafter, she received physical therapy two or three times per week for a few months. She also testified that she visited an orthopedist on three or four occasions.

The woman no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does have any future medical appointments scheduled. She testified that she was confined to her bed for one day as a result of the accident and missed less than one week of work. The court notes that the testimony contradicts the woman’s bill of particulars.

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 3, 2012

The Court held that the lady driver of the Honda Civic

by Stephen Bilkis

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in traffic waiting for the light to turn green when a Jeep hit her car from behind. The impact of the rear-end collision pushed her Honda Civic one car length away. Her Honda Civic struck the car in front of her.

The impact of the collision sent the lady driver of the Honda Civic in a lurching motion. She hit the steering wheel and was pulled back by gravity so that she hit her neck and back on the head rest. She claims that she twisted her neck and was in pain.

She claims that she sustained spinal injury in her cervical and lumbar spine. She claims to have discs that have been misaligned and resulted in swellings which brought about impingement of the nerves and great pain.

Published on: October 1, 2012

On this appeal the employer contends that claimant’s disability is causally

by Stephen Bilkis

Claimant, employed as a policeman by the Nassau County Police Department, was accidently shot in the abdomen on November 8, 1953 as he was removing a shotgun from a police car. Compensation in the form of reimbursement to the employer was paid for intermittent periods of lost time, and the case was closed upon finding of no further disability. On November 1, 1962 claimant was in an automobile accident while on police duty and sustained injuries to his neck and back. Compensation in the 1962 case was paid for several weeks, and the case was eventually closed pending the outcome of a third-party action which was later settled without the consent of the employer. Thereafter, claimant was relieved of all police duties and went on sick leave and performed no work thereafter.

A Lawyer said that, Dr. Masoff, claimant’s physician, reported to the employer that he had examined claimant, that claimant had pain in his right side for about four months with no relief; and that claimant had pain in his right side radiating to his lower back and down his life lower extremity, and requested authorization by the employer to hospitalize claimant for x-rays and further treatment. Upon a C–4 medical reports by Dr. Masoff filed which indicated recurrent back pain necessitating x-rays and hospitalization, the Workmen’s Compensation Board on reopened the 1953 case upon the report of changed condition and directed that the Special Fund be placed on notice.

A Nassau Personal Injury Lawyer said that, claimant was admitted to the Smithtown General Hospital and placed in pelvic traction and bed rest. After consultation with Dr. Levitan and Dr. Stein, an operative procedure was done by Dr. Levitan and Dr. Stein to probe the 1953 shotgun wound. Claimant was fitted with a Knight Spinal Brace and was discharged from the hospital on August 17, 1965.

Published on: September 15, 2012

On November 6, 2009, at around 11:30am, a car had stopped at a red light at the corner of 86th

by Stephen Bilkis

On November 6, 2009, at around 11:30am, a car had stopped at a red light at the corner of 86th Street and 7th Avenue in Brooklyn. The car had stopped for around ten seconds when it was hit from the rear end by a van owned by a private company and driven by one of its employees. As a result of the rear-end collision, the driver of the car sustained a shoulder injury which had to be surgically repaired twice.

The defendant in his deposition claimed that it was raining on that day and hour when the car accident occurred. He also claims that the car accident was not really a rear-end collision but that the van tried to swerve to avoid hitting the car in front of him. He claims to have succeeded in that only the end of the van’s bumper hit the end of the car’s bumper. The defendant also claims that the car stopped abruptly in front of him which made it impossible for him to stop in time and avoid hitting the car in front of him.

These allegations of the defendant in his examination before trial were never made part of the police report accomplished by the police officers who responded at the car accident scene. These allegations were also never contained in the report filed by the employee when he explained the accident to his employer. The car owner points out that the police report clearly showed that the van hit the car squarely in the rear.

Published on: September 3, 2012

This action arises from a motor vehicle accident

by Stephen Bilkis

This action arises from a motor vehicle accident which occurred at or near the intersection of Hempstead Turnpike and Lincoln Road, Franklin Square, County of Nassau, State of New York. The accident involved two vehicles, a 1998 Mercedes Benz owned and operated by plaintiff and a 1994 Ford Pick-Up Truck owned and operated by defendant. Plaintiff commenced the action by the filing and service of a Summons and Verified complaint for damages.

A Lawyer said that, it is plaintiff’s contention that at the time of the car accident his vehicle was stopped at a red light on Hempstead Turnpike, and had been so for approximately ten seconds, when it was violently struck in the rear by defendant’s vehicle. In his Affidavit in Support of his motion, plaintiff states, there is nothing to my knowledge and belief that I could have done to avoid this truck accident. My actions of obeying the New York State Vehicle and Traffic Laws were obviously no factor in causing this accident. Based upon Defendant’s conduct and the physical objective facts, it is clear that the Defendant’s negligence was the sole cause of this truck accident and that the Defendant’s conduct fell well below the standard of reasonable care that one should employ and utilize when operating a motor vehicle within the State of New York.

Plaintiff moves, pursuant to CPLR § 3212, for an order granting partial summary judgment against defendant on the issue of liability upon the ground that there are no triable issues of fact and that, as a matter of law, plaintiff is entitled to such judgment; and, upon granting summary judgment, for an order setting this matter down for an assessment of damages. Defendant opposes the motion.