Articles Posted in Car Accidents

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A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof.

Labor Law §200 reads: All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

Owners and general contractors, will be found liable for accidents resulting from unsafe conditions on the owner’s land, if the owner either exercised supervision and control over the activity causing the injury, caused or created the dangerous condition, or had actual or constructive notice of the unsafe condition. However, where the defect or dangerous condition arises from a sub contractor’s methods and the owner or general contractor exercises no control or supervision over the activity at issue, the owner and general contractor will not be liable under Labor Law §200, even if the same had notice of the sub-contractor’s defective methods or the dangerous condition alleged. Stated differently, with respect to the sub-contractor’s improper methods or the use of defective materials, liability is only established when the owner has maintained the ability to control the work giving rise to the personal injury or has actually exercised supervision or control of the same.

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As previously stated, ever where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury. The Court finds that neither plaintiff nor the examining physician adequately explained the cessation of her treatment. Additionally, plaintiff did not provide the Court with evidence of any physical therapy she may or may not have been taking part in since the date of the accident. Also, there was no statement from any doctors that plaintiff had reached her maximum possible medical improvement and that further treatment was unnecessary.

Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff’s objective medical proof of limitations and permits dismissal of plaintiff’s Verified Complaint.

Finally, plaintiff’s deposition testimony does not establish that she was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Plaintiff attended school in a full time capacity shortly after the accident. Based on the above, the Court finds that plaintiff has failed to establish by competent medical proof that she sustained a “permanent consequential limitation of use of a body organ or member,” a “significant limitation of use of a body function or system” or “a medically determined injury or 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 injury or impairment.”

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The issue to be resolved in this case is whether summary judgment of the case is proper.

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact.

After applying the law to the facts in this case, the Court finds that defendant met her burden to demonstrate an issue of fact which precludes summary judgment. As previously stated, in rendering a decision on a summary judgment motion, the Court is not to resolve issues of fact nor determine matters of credibility. The Court finds that the facts and circumstances surrounding the accident do indeed involve determining the credibility of the parties involved in said accident. The Court holds that the parties’ conflicting versions of the car accident,

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The plaintiff commenced this personal injury action against the driver and owner of a New York City taxi, involved, along with the plaintiff, in a motor vehicle accident at the traffic light on the street. The plaintiff alleges that he was stopped at the light when the driver rear-ended his vehicle. The driver’s whereabouts throughout this proceeding have been unknown, and the owner was held vicariously liable for driver’s negligence in the court’s earlier decision.

A source said that he defendants argue that the plaintiff has failed to meet the statutory requirements of a serious injury under Insurance Law, which defines serious injury 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 or member; significant limitation of use of a body function or system; or a medically determined injury or 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 injury or impairment. They present affirmed medical reports from two physicians in support of this argument. The first report references the plaintiff’s repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. The second affirmed medical report, was a radiology study of the plaintiff’s CAT scans submitted to the Hospital which shows that no evidence of acute or recent injury, rather a depiction of age-related chronic degeneration of the spine.

The plaintiff argues that the unsworn and sworn medical reports he has submitted in opposition to the defendants’ renewed summary judgment cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of excerpts of correspondence from the Social Security Administration (SSA), the plaintiff further notes that the SSA has determined that he is disabled.

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This is a personal injury action in which plaintiff, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on December 22, 2009, at the intersection of 23rd Avenue and 97th Street, Queens County, New York. At the time of the incident, the plaintiff was proceeding on 23rd Avenue when the vehicle operated by the defendant, pulled out of a parking space and collided with the plaintiff’s vehicle while attempting to make a U-turn. The plaintiff claims that as a result of the car accident he sustained injuries to his neck, including a herniated disc at C5-C6, injuries to his right shoulder, lower back and a partial tear of the ACL of the right knee.

A reporter said that the plaintiff commenced this action by filing a summons and complaint on June 18, 2010. Plaintiff contends that he sustained a serious injury as defined in Insurance Law § 5102(d) in that he sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

A witness said that, defendants now move for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the plaintiff’s complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.

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The underlying action was commenced by the plaintiffs as a result of a motor vehicle accident, which occurred on November 29th, 2008, at or near the intersection of Page Road and Marlboro Road in Valley Stream, New York. The subject intersection is controlled by stop sign for those vehicles traveling on Marlboro Road.

A New York Injury Lawyer said that, as recited in the relevant deposition transcript, the Police Officer testified on the day of the accident she was operating police vehicle number 523 and was traveling approximately 30 miles per hour southbound on Marlboro Road responding to an emergency call she received in connection to an unconscious person in need of medical assistance. Upon receipt of this call, the Officer activated the emergency lights, which remained illuminated continuously, as well as the siren, which she operated intermittently “every half second” until the time of the car accident. Upon approaching the subject intersection, the Officer began to slow the police vehicle down when she observed the automobile operated by the plaintiff traveling eastbound of Page Road. After observing the plaintiff’s vehicle, the Officer continued to sound the siren and attempted to stop the police cruiser but was unable to do so and collided with the plaintiff. The Officer testified that at the time of impact, the speed of the police cruiser was between “five to ten” miles per hour.

A source said that, the plaintiff claims that as a consequence of the subject accident, she has sustained serious injury as defined in Insurance Law. Plaintiff, while not alleging a claim of serious injury, has asserted a derivative claim for loss of consortium. The applications respectively interposed by the moving parties thereafter ensued and are determined as set forth hereinafter. The Court initially addresses that branch of the defendants’ application which seeks an order dismissing the underlying complaint on the basis that the plaintiff has failed to demonstrate the County acted with reckless disregard to the safety of others. In support thereof, counsel argues that at the time of the accident the police cruiser was an authorized vehicle responding to an emergency situation and was operated by the Officer in a non-reckless manner thus warranting the relief herein requested.

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On October 4, 2002, the plaintiffs filed a personal injury action arising from a motor vehicle accident and alleged that they sustained serious injuries as defined by Insurance Law and seek to recover damages against the defendants.

The defendant moves for summary judgment in its favor. In support of the motion, the defendant submitted the following documents: with respect to plaintiff Mrs. A, the affirmed medical report of a neurologist referencing a neurological examination conducted on December 15, 2004 and the affirmed medical report of the orthopedist referencing an orthopedic examination conducted on December 15, 2004; with respect to plaintiff infant Mr. B, the affirmed medical report of the orthopedist referencing an orthopedic examination conducted on December 15, 2004 and the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004; and with respect to plaintiff infant Ms. C, the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004. (See Exhibit I.)

The lower court held that with respect to infant Ms. C, the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004 is insufficient to establish a prima facie case that infant sustained a serious injury as a result of the underlying accident because it fails to address the claims of vestibular dysfunction and left shoulder pain.

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On December 13, 2011 in the Supreme Court of the State of New York Appellate Division: Second Judicial Department, an interesting case was heard. The commercial vehicle accident injury that occurred in Westchester County and had been heard on September 28, 2010 was being appealed. The issue at appeal was that the property owner of a commercial property had asked the court for a summary judgment to relieve it from liability in the personal injury accident case because of contractual indemnification. In other words, they could not be held responsible for an accident or injury that occurred on the property because the business that leased the property from the owner had agreed in their contract not to hold the property owner liable. Previously, the courts had not reviewed this request.

The facts of the case are undisputed. A woman went to a fast food restaurant that was located on the property owned by the property owner. After eating, the woman left the restaurant and was struck by a commercial garbage truck that was leaving the restaurant. The woman received injuries from the accident and named the truck company, the restaurant owners, and the property owners in her suit.

The property owner states that because of the contract that says that they are not to be held liable for any actions that occur out of “any accident, injury or damage whatsoever caused to any person or property arising, directly or indirectly, out of the business conducted in the premises or occurring in, on or about the premises or any part thereof,” except if the negligence is on the part of the property owner.

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An action was filed, among other things, to recover damages for wrongful death and personal injuries against a car leasing company. The action arose from a car/bicycle collision accident, which led to the death of the 30-year old woman riding the bicycle. According to sources, the woman, while riding her bicycle, was stuck by a truck. The truck was owned by a car leasing company. The car leasing company denied liability and asked a court to dismiss the complaint against them.

Records showed that on the day of the car accident, an assistant supervisor for a trucking company rented the truck from a dealer of the car leasing company. The truck, at the time of the accident, was driven by a part-time worker of the dealer.

The brother of the deceased woman filed the action. The brother alleged negligent entrustment. In the allegation of negligent entrustment, the brother said the dealer’s counter agent negligently entrusted the truck to the part-time employee. The brother said the counter agent failed to thoroughly review the driving and criminal history of the part-time employee. Sources said the part-time employee’s license is restricted to a class C driver’s license. The brother further alleged that the part-time employee’s drug use on the day of the rental and accident was obvious and the counter agent negligently failed to refuse the employee from driving.

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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 source 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 doctor 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 Lawyer 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.

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