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In this case the Court of Appeals considered whether an expectant mother may recover damages for emotional harm where her baby was injured in utero injury  and  subsequently born alive.

When Plaintiff Karen Sheppard learned that she was pregnant, her obstetrician, Dr. King, also informed her that she had fibroids and that she was not likely to carry the fetus to term. Her doctor advised her to terminate the pregnancy.  Her doctor also referred her to Dr. Spector for a second opinion concerning the performance of a surgical abortion. Dr. Spector advised against a surgical abortion and recommended a nonsurgical abortion using the drug methotrexate. Methotrexate breaks down fetal tissue.

During the plaintiff’s seventh week of pregnancy, Dr. King administered the methotrexate. Upon administering the second dose, Dr. King told the plaintiff that no there was no fetal heartbeat.  The plaintiff then met with  Dr. Sheila Kumari-Subaiya who performed a sonogram and advised Sheppard that there was no fetal heartbeat.

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In New York, a medical malpractice case must be filed within 2.5 years of when the underlying act of negligence occurred. CPLR 214-a. However, in extraordinary circumstances, the doctrine of equitable estoppel can be invoked to revive time-barred claims.

In Pahlad, the Appellate Division considered whether a time-barred medical malpractice claim should be allowed where the plaintiffs claimed that the defendant’s actions contributed to their filing their claim late.

Background

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In the case of the death of a 14-year boy , the appellate court considered whether his death was in the course of his employment as determined by the New York Workers’ Compensation Board, or whether it was due to his employer’s criminal activity.

Exclusive remedy rule

In New York, when an employee is injured or killed during the course of their employment, Workers’ Compensation benefits are the victim’s exclusive remedy. That means that the victim and/or the victim’s family do not have the option of pursuing a personal injury claim against the employer.  An exception to the exclusivity rule is where the employer engaged in deliberate acts that caused the victim’s injury.

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In a personal injury case involving a plaintiff slipping and falling on subway stairs, the court considered whether the defendant, New York City Transit Authority (NYCTA), had a reasonable opportunity after the end of a snow storm to address the slippery condition, or whether NYCTA had actual or constructive notice of the hazardous condition.

Background

The events that led to the plaintiff’s injury happened on March 6, 2015 at 8:30am at the entrance of the subway station on the northwest corner of the 110th Street and Lenox Avenue.  The night before it had snowed, and the stairs were covered in slush.

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In a medical malpractice case where the jury found the defendant to have been negligent, resulting in a severe injury to the plaintiff, the defendant asked the second department to determine whether the jury award should be set aside as excessive.

Background

On November 12, 2011, 27-year old Cinthya Arcos gave birth. During delivery, Dr. Yehuda Bar–Zvi performed an episiotomy on Arcos.  The episiotomy involved Dr. Bar-Zvi made an incision in the area between the vagina and the rectum. Dr. Bar-Zvi then used a vacuum extractor to deliver the baby.

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In a medical malpractice case where the jury found the defendants liable for the plaintiff’s birth injury, the second department was asked to determine whether a new trial should be ordered.

Background

On June 1, 2010, 38 years old Vashti Daisely, who was in the late stages of pregnancy, went to the emergency room at Vassar Brothers Medical Center. She had contacted her doctor when she was concerned about decreased fetal movement. Her doctor instructed her to immediately go to the nearest emergency room.  She was seen by Dr. Kimberly Heller and Dr. Donna Kasello.

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On March 7, 1999 at 9:15am, the plaintiff slipped and fell in the snow in front of her apartment building, injuring her ankle.  In the hours preceding her fall, there was a snow storm with about two inches of snow accumulating.

The plaintiff filed a personal injury lawsuit against her landlord based on premises liability.  The defendant filed a summary judgement motion, arguing that at the time that the plaintiff fell, because the snow was still accumulating, they had no duty to clear the snow.

Storm in progress doctrine

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In the case of a car accident that killed one person and severely  injured another, the appellate court was asked to consider whether the “storm in progress” defense  applied.

Background

On March 2, 2005, 25-year-old Jeremy Killenberger and 25-year-old James Croote were passengers in a car being driven by Kevin Miller on State Route 7 in Princetown, Schenectady County. There was snow and ice on the roads that day.  As a result of the poor conditions, Miller lost control of the car.  The car crossed over the center lane and crashed into a snowplow.  Killenberger was seriously injured and Croote was killed.

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The issue in this slip and fall case is who was responsible for making sure a sidewalk was clear of hazards by properly clearing snow.

Plaintiff Garcia, who was 50-years old at the time of the accident, was seriously injured after stepping off a NYCTA bus in the early afternoon of February 9, 2004. After stepping off the bus and taking a few steps, she slipped on the ice at the bus stop and suffered a fracture that required surgery and pinning. In addition, she suffered multiple disc herniations. The bus stop was located directly in between abutting premises at 1871 and 1873 Amsterdam Avenue. The owner of 1871 Amsterdam Avenue is defendant Moy Realty, and the owner of 1873 Amsterdam Avenue is defendant Amsterdam Realty. The accident occurred after the implementation of the new sidewalk law, Administrative Code of the City of New York (NYCAC) § 7-210, which now places the burden on the abutting landowner to maintain the sidewalk in a safe condition from the building to the street curb.

Based on the serious injuries she suffered from slipping and falling on the ice, Plaintiff Garcia filed a personal injury lawsuit and named several defendants: Moy Realty, Amsterdam Realty, the City of New York, the New York City Transit Authority (NYCTA), and Manhattan and Bronx Surface Transit Operation Authority (MABSTOA). The defendants filed motions for summary judgment dismissing the claim.

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With regard to plaintiff’s claim for abuse of process, FVA has demonstrated prima facie entitlement to summary judgment. In order to prevail on a cause of action a plaintiff must demonstrate that defendant: (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; (3) that the process was perverted to obtain a collateral advantage; and (4) that the process unlawfully interfered with plaintiff’s person or property. As discussed above, to the extent that plaintiff must prove all elements, a defendant obtains summary judgment if he negates the existence of any one of the elements.

FVA has demonstrated prima facie entitlement to summary judgment insofar as it has demonstrated that the process herein, namely, the reparation action, was not perverted in any way so as to obtain a collateral advantage. The witness establishes that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which GROWERS felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. To the extent that the purpose of the reparation action was to recover money and the same was GROWERS’s goal, it cannot be said that the process was perverted to obtain a collateral advantage. Based on the foregoing, FVA has demonstrated prima facie entitlement to summary judgment with regard to the abuse of process claim.

FVA has demonstrated prima facie entitlement to summary judgment with regard to plaintiff’s claim asserting fraud. It is worth noting that injury plaintiff never opposes this portion of FVA’s motion and as such, summary judgment is granted on default. Nevertheless it is well settled that a cause of action for fraud or misrepresentation requires proof that defendant misrepresented an existing fact, falsity, scienter, justifiable reliance by the plaintiff and damages. The Court finds that FVA’s evidence demonstrates an absence of misrepresentation, falsity or scienter. As such, FVA has established prima facie entitlement to summary judgment with regard to the cause of action for fraud.

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