Articles Posted in Car Accidents

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In opposition, plaintiff argued that she was injured after she exited the bus and therefore was not a covered person pursuant to the No–Fault who has to satisfy the serious threshold. Plaintiff further argued that defendants’ liability did not arise from its use and operation of the bus, but rather from its duty to provide plaintiff with a safe place to alight from the bus. Alternatively, plaintiff argued that if the threshold statute were to apply, defendants failed to meet their burden on summary judgment. Finally, plaintiff argued that, if defendants were found to have met their burden, she raised a triable issue of fact by the submission of objective medical evidence. Essentially, plaintiff submitted the affirmed report of an orthopedist who examined her twelve days after the fall and an MRI of her left knee, dated June 17, 2008, which revealed some swelling. The orthopedist’s examination revealed moderate limitations in the range of motion of plaintiff’s left ankle.

The court rejected defendants’ argument that plaintiff’s accident arose from the use or operation of the bus so as to implicate the No–Fault Law. The court reasoned that the accident did not occur because of the inherent nature of the bus, it occurred outside the bus; the bus itself did not produce the injury.” The court further noted that defendants did not address whether, as a common carrier, they breached their duty to stop the bus at a place where plaintiff could safely disembark. Accordingly, the court denied defendants’ motion, prompting this appeal.

One of the main features of the No–Fault Insurance Law is that it limits the right to bring a personal injury action for damages arising out of an automobile accident (Insurance Law § 5104[a] ). On the one hand, first-party benefits, also referred to as basic economic loss coverage, are available to a covered person regardless of fault. On the other hand, in exchange for receiving such no-fault benefits, a person injured in an automobile accident may bring a plenary action in tort to recover for noneconomic loss but only if he or she has suffered a “serious injury” within the meaning of the No–Fault Law.

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In this action to recover damages for personal injury, plaintiff alleges that she was injured when she stepped into a hole and fell after alighting from a bus owned and operated by defendants. The court below properly rejected defendants’ allegations that the No–Fault Insurance Law, which would have required plaintiff to establish that she sustained a serious injury as a result of the accident, applies to this matter. The controlling precedent is Walton v. Lumbermens Mut. Cas. Co., which holds that for the No–Fault Law to apply, the vehicle, must be the proximate cause of the plaintiff’s injury.

This dispute arises from an accident that occurred on the morning of May 28, 2008. Plaintiff was allegedly injured as she exited a bus owned and operated by defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (defendants). Plaintiff testified at a General Municipal Law § 50–h hearing that as she exited the rear of the bus, she stepped off the last step into a hole and fell. She stated that the bus did not pull completely into the bus stop; she was let out in front of the bus stop. The bus continued on its route. She described the hole into which she stepped and fell as being pretty far away from the curb; while the front of the bus pulled about a foot away from the curb, the “back of the bus was on an angle, so it was further away from the curb.

At the scene, plaintiff’s left ankle started to swell. An ambulance arrived, and took her to Jacobi Medical Center’s emergency room, where the staff took x-rays of her left ankle, but found no break or fracture. They wrapped the ankle with a bandage, gave her crutches and told her to visit her primary care doctor. Plaintiff was released the same day. The following day, plaintiff went to the emergency room of Montefiore Medical Center by taxi, because the pain in her ankle was too much with the Ibuprofen. At Montefiore, they prescribed a higher dose of Ibuprofen, rewrapped her ankle with an air cast and discharged her. She returned to Montefiore the same day, and was prescribed Percocet. Her primary care physician referred her to an orthopedist, who prescribed a new type of pain medicine and physical therapy, and sent her for an MRI. Plaintiff testified that she was confined to her home mostly the first week and confined to her bed the first few days, about two or three days.

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When the allegation is that the falling object, which allegedly caused the plaintiff injury was neither being hoisted nor secured and was instead, a stationary object, Labor Law §240(1) may nonetheless apply if the bike accident alleged was, given the work being performed, a foreseeable consequence of the failure to provide a safety device as enumerated by the statute.

There are two well recognized defenses to a Labor Law §240(1) claim, the “proximate cause,” no violation defense and the “recalcitrant worker” defense. A defendant can avoid liability under the statute if it can demonstrate that it did not violate the labor law and that the proximate cause of the plaintiff’s accident was plaintiff’s own negligence.

In order to establish a violation of Labor Law §241(6), the underlying statute or rule that the violation of Labor Law §241(6) is premised upon, must be one that mandates concrete specifications rather than a general safety standard. The rule alleged to have been violated, must be applicable to the facts of the action therein.

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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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In opposition to the instant motion, plaintiff submits an un-notarized affidavit, which is inadmissible and cannot be considered in opposition to the instant motion.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form.

Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Similarly, unsworn accident reports are inadmissible and cannot be considered by the court.

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Defendants move seeking an Order granting them summary judgment over plaintiff. Alternatively defendants seek an Order granting them summary judgment over the third-party defendant on their contractual indemnification claim. Defendants aver that to the extent that they neither supervised nor controlled plaintiff’s work, plaintiff’s claim pursuant to Labor Law §200 must be dismissed.

A Bronx County estate lawyer said that the instant action is for alleged personal injuries premised upon violations of the Labor Law. The first-party complaint alleges the following. On July 15, 2005, plaintiff was injured while within premises located at 1160 Fifth Avenue, New York, NY. The premises herein was owned, maintained and managed by the defendants and that the plaintiff was employed to perform construction work therein. Defendants were negligent in causing and creating a dangerous condition within the premises herein or allowing the same to exist despite notice of the same. Said condition caused plaintiff injury. Defendants violated several Labor Laws. The third-party action is for contribution, common law and contractual indemnification and breach of contract.

A Bronx Personal Injury Lawyer said that in support of the instant motion, defendants submit plaintiff’s deposition transcript and errata sheets, wherein he testified, in pertinent part as follows. On July 15, 2005, plaintiff had an accident while employed within premises located at 1160 Fifth Avenue. Plaintiff was employed by third-party defendant, a construction company, at which he performed carpentry, sheetrocking and plastering. Plaintiff had been working at the premises herein since mid May 2005 and was involved in the renovation of several apartments. There were other trades also involved in the renovation herein. Plaintiff’s boss, a person who was not on site on a daily basis. There was a superintendent employed by the building herein and said superintendent did not give plaintiff any directions or instruct him with regard to his work. On the date herein, plaintiff was framing a room within an apartment on the fifth floor. Plaintiff was in charge of a four man crew, who were working in the apartment with him. Dog bite was not involved.

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It is not logical to conclude that the laws of New York facilitate the commencement of actions in this jurisdiction against living nonresidents for their negligent operation of a motor vehicle in this jurisdiction by authorizing the Secretary of State to be served with process as their agent but require injured New Yorkers to be burdened with the cost and delay of petitioning for the appointment of a fiduciary in the domiciliary state of deceased tortfeasors in those cases where no other interested party has made any such application in that jurisdiction. In any such proceeding it is unlikely that the petitioner will receive any cooperation from either the tortfeasor’s beneficiaries or insurance carrier.

The appointment of a fiduciary in this jurisdiction is in no way prejudicial to the rights of the estate of the nondomiciliary or to the insurance carrier. The estate is not prejudiced because the letters are limited to defending against the negligence action to the extent that the defense and payment are covered by the terms of the insurance policy. The insurer is not prejudiced because the coverage is not increased by one penny and because the insurer would be required to provide the same coverage in an action commenced in New York even if the fiduciary had been appointed and served with process in the domiciliary state of the defendant.

Furthermore, New York is not treating deceased nondomiciliary tortfeasors any differently than it treats New York deceased tortfeasors. Where no other interested party has sought to be appointed the fiduciary, the New York courts, both Surrogate’s and Supreme, frequently issue limited letters of administration in the estates of deceased New York tortfeasors to the Public Administrator, or to another nominee including counsel for the insurer, the real interested party, limited to the bicycle insurance coverage.

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Consequently, the court has subject matter jurisdiction to issue letters of administration in the decedent’s estate, limited to the administrator defending against the lawsuit and paying any recovery obtained in the action for the tort committed by the nondomiciliary in New York to the extent that such defense and payment are covered by the terms of an insurance policy. Here, inasmuch as the insurer specifically contends that it must be considered a nondomiciliary of New York, the provisions of SCPA 208, which are limited to actions “against a domiciliary,” are not applicable and, in any event, this section should presently be titled “venue” rather than “jurisdiction” as a result of the 1984 amendments to SCPA 205, 206, and 207.

Moreover, a “debt” or “chose in action,” unlike chattel or real property, is not actually located in any specific place; to state that it is situated in one identifiable location is a legal fiction. This is the reason why SCPA 208 (1) refers to a debt against a domiciliary corporation as “deemed personal property in the county where the domiciliary has its principal office”.

Notwithstanding that a debt or the obligation to indemnify of a domestic corporation is deemed personal property situated within the county where the principal office of the corporation is situated, the Court of Appeals stated in the above case that “an exception appears to have been recognized for the purpose of issuing letters on estates of deceased persons in the case of insurance companies authorized to do business in this State even though incorporated elsewhere, at least where the policies have been issued in this State.” It is worthy of note that there were at least two factors present in the case which might be a reason to require a stronger nexus between the alleged “property” of the nondomiciliary and New York than should be required in this matter.

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In this estate case, the plaintiff, a resident of Bronx County, was a passenger in one of the two motor vehicles involved in the accident and the deceased defendant was the owner and operator of the other vehicle. Two parties were originally named as defendants because the plaintiff did not realize that two individuals, referred to in the accident report were one and the same person. The defendant’s vehicle was registered in Ohio but he was operating the vehicle with a New York driver’s license, listing a New York address for him. The decedent’s death certificate, which was issued in Ohio, states that he resided in Ohio on the date of his death.

The movant contends that, since the insurance carrier neither transacts business nor has an office in New York, the Bronx County Surrogate’s Court lacked subject matter jurisdiction to issue even limited letters of administration in the estate of the nondomiciliary (Ohio) defendant. The movant also contends that “since an administrator has not been properly appointed for decedent’s estate” the complaint must be dismissed because personal injury jurisdiction was not properly obtained over the deceased defendant by serving process upon the improperly appointed administrator.

A Bronx County Estate lawyer said that the decedent on the date of the accident, June 7, 1996, was operating a vehicle in New York with a New York driver’s license stating that he was a resident of New York; the decedent’s insurance policy obligated the insurer to defend him in a New York action in the event that he was sued for negligently operating his motor vehicle in New York; the plaintiff in the first action commenced against the decedent on December 9, 1998 attempted to obtain jurisdiction over the defendant by serving the Secretary of State; the insurance carrier did not advise the plaintiff and the court in which the first action was pending until June 2000 that the decedent had died on July 7, 1998, prior to the commencement of that action; the Supreme Court dismissed the first complaint on the ground that an action cannot be commenced against a deceased person by service upon the Secretary of State; no fiduciary had been appointed for the decedent in any jurisdiction in the approximately 29 months that had elapsed from the date of the decedent’s death to December 5, 2000, the date that the petition for the issuance of temporary limited letters of administration was filed in this court; process in the pending action was served on the Public Administrator as the administrator of the estate of the decedent on December 6, 2000, allegedly one day before the action would have been time-barred; and the instant motion was not made returnable until approximately seven months had elapsed from the date that the movant filed its answer, alleging as an affirmative defense “That this Court [Supreme Court] lacks jurisdiction over the person or property of the answering defendants in that the service of process was not made in accordance with the provisions of the law.”

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Considering the “totality of the circumstances, and the previously enumerated factors which the Court should take into account in its best interest analysis of the proposed transfer, at least four of the six factors raise red flags against a sale.

1. Purpose of the intended use of the funds – as noted, there is no evidence with regard to a variance for the proposed two-family conversion nor any documentary proof of the likely costs for same. As already set forth, Mr. EV is an ideal candidate for loss mitigation of his mortgage 2. Potential need for future medical treatment – since no evidence has been submitted with regard to the gravity of his injuries sustained in 1996 the court hesitates to allow the use of funds which the payee may very well later need to pay for future medical care. 3. The financial acumen of the payee – Mr. EV, the self-proclaimed professional gambler, has demonstrated a failure of judgement with regard to the priority of his financial responsibilities. 4. The ability to appreciate the financial consequences of this sale – clearly he chose not to obtain any independent legal or financial advise on such an important matter. It is precisely because he fails to appreciate his financial predicament that he now makes the within application.

Although it has been found that hardship, weighs heavily in favor of determining that a transfer of structured settlement rights is in the best interest of the payee. Nonetheless, not all professed claims of desperate financial circumstances result in the approval of transfers. Petitions have been dismissed where there was no unforeseeable need for housing or showing that the payee was incapable of self-support. Nor was the Petition of a disabled payee who lived at home with his mother, seeking to sell his structure to pay off debts, buy a used car and get a job, sufficient proof of desperate circumstances justifying approval of the transaction. Similarly, payees who intended to improve their financial circumstances by: selling their structures to take advantage of low mortgage rates, reduce credit card debts, or even purchase a truck for professional use, were denied their petitions upon their failure to explore or exhaust other options for resolving their financial constraints. These injury courts found that allowing such sales would have promoted future financial hardship, which ultimately was not in the “best interest” of any of the payees.

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