Articles Posted in Personal Injury

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Regardless of whose duty it was to maintain the sidewalk at the bus stop location, the City, M Realty and A Realty all argue that plaintiff’s complaint should be dismissed on the premise that plaintiff cannot establish exactly where she fell, and thus, has not made out a prima facie case of negligence. A 50-h injury hearing was held at the NYCTA offices on July 6, 2004.

At plaintiff’s 50-h hearing, plaintiff stated that she fell in the street after she stepped off the bus. In pertinent part she stated that she exited from the front of the bus and either she stepped from the bottom step of the bus to the sidewalk and then slipped, or, she had taken two steps from the bus before her accident took place. Her 50-h testimony also indicated that both feet were off the bus and her right foot made contact with the street. She also stated that she put her other foot towards the sidewalk and then she slipped on the ice that was on the sidewalk.

Based on the plaintiff’s testimonies at the 50-h hearing and her deposition this court finds that plaintiff has established a prima facie case of negligence. The court reiterates that a question of fact exists as to who cleared the three foot path on the sidewalk area immediately surrounding the bus stop where plaintiff was injured.

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They oppose the City’s cross motion on two bases. The first basis for their personal opposition is their position that, if the plaintiff stepped on the curb and slipped there, then NYCAC § 7-210 is inapplicable, pursuant to NYCAC § 19-101 [d]. According to NYCAC § 19-101 (d), the sidewalk does not include the curb. NYCAC 19-101 (d) defines sidewalk as: that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians.

The second basis for their opposition is that, while NYCAC § 7-210 does impose on abutting building owners the responsibility to clear sidewalks in front of the abutting premise of snow and ice, the statute does not also impose on the abutting landowner the City’s prior NYCAC § 7-210 duty to maintain a bus shelter or a bus stop area, should there be one located in front of that particular abutting landowner’s abutting premise.

The court’s responsibility to determine whether there is a duty “involves a very delicate balancing of such considerations as logic, common sense, science and public policy. Prior to the enactment of the new sidewalk law, it was the City’s duty to keep its sidewalks “reasonably free from snow and ice and the City could be held liable for the negligent failure to do so. After the enactment of NYCAC § 7-210, the duty to keep sidewalks clear of snow and ice was transferred to that of the abutting landowner.

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In this negligence action, motion sequence numbers 001 and 002 are consolidated and disposed of in accordance with the following decision and order. Under motion sequence No.001, co-defendant 1873 A Realty Corp. (A Realty) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all claims and cross claims. Co-defendant City of New York (the City) cross-moves for an order granting it summary judgment dismissing the complaint and all cross claims.

Under motion sequence #002, co-defendants New York City Transit Authority (NYCTA), and Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) move for an granting them summary judgment dismissing the complaint, all claims and cross claims. Co-defendant 1871 M Realty Corp. (M Realty) cross-moves for an order granting it summary judgment dismissing the complaint and all claims and cross claims. The plaintiff discontinued her action against the City but not against the remaining co-defendants. Based upon the following facts and law, MABSTOA’s and NYCTA’s motion should be granted under motion sequence # 002, but all other motions under motion sequence # 001 and # 002 should be denied, as a triable question of fact exists whether NYCAC § 7-210 still imposes a duty on the City to maintain bus shelters and bus stops.

Plaintiff sustained an injury to her person, at 1:30 P.M. on February 9, 2004, just after she was discharged from a NYCTA bus. Plaintiff, then 50 years old, suffered a fracture, requiring surgery and pinning, plus multiple disc herniations. Her injury occurred after she alighted from the bus and then, either after taking her first step, or a few steps, off the bus, slipped on ice at the bus stop location either in the street, on the curb, or on the sidewalk by the bus stop. Her husband, who also exited from the same bus ahead of her, did not slip and was not injured.
It is undisputed that there is a designated bus stop located directly in front of and in between the abutting premises identified as 1871 and 1873 Amsterdam Avenue. It is also undisputed that it had snowed several days prior to the accident. The abutting owner of 1871 Amsterdam Avenue is M Realty, and the abutting owner of 1873 Amsterdam Avenue is A 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. NYCAC § 7-210 (b) provides in pertinent part:

“Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk.”

The City’s position is simply that, subsequent to the implementation of the new sidewalk law, the abutting landowners became responsible for the removal of snow and ice, pursuant to NYCAC § 7-210, which it alleges, by way of the unique fact pattern in this case, includes the bus stop and the immediate area surrounding the bus stop.

M Realty and A Realty, in essence, present identical arguments in opposition to the City’s summary judgment motion, and in support of that portion of their injury summary judgment motions alleging it is not their duty to maintain bus stops. While they acknowledge that it is their responsibility as abutting landowners to keep the sidewalks free of snow and ice, they maintain that their duty exists only for that portion of the sidewalk extending from the edge of the abutting property to the curb and does not include the area where the bus stop is located.

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The Court of Appeals granted leave and concluded that the Second Department had correctly dismissed the appeal. The Court of Appeals stated that, with limited exceptions, an appeal may be taken to the Appellate Division as of right from an order deciding a motion made upon notice when, among other possibilities, the order affects a substantial right. There is, however, no right of appeal from an ex parte order, including an order entered suasponte. The Court also stated that an order made suasponte is not an order deciding a motion on notice is apparent from various CPLR provisions, including the definition of motion and the provision for dismissal for failure to prosecute, which distinguishes between a court initiative’ and a party’s motion. While the trial court had created a procedure to ensure that the parties had an opportunity to be heard before the court acted, the Injury Court stressed that the submissions ordered suasponte by the trial court were not made pursuant to a motion on notice as contemplated by CPLR 5701 (a) (2). While the procedure in this particular case may well have produced a record sufficient for appellate review, there is no guarantee that the same would be true in the next case. Moreover, the amount of notice will vary from case to case, and its sufficiency may often be open to debate. Adherence to the procedure specified by CPLR 5701 (a) uniformly provides for certainty, while at the same time affording the parties a right of review by the Appellate Division. We are therefore unwilling to overwrite that statute.

As is evident from the briefs, the record and the attorneys’ statements at oral argument, the order determining the value of the parcels was not the product of a motion made on notice. Rather, that order was issued suasponte and therefore is not appealable as of right.

Defendant’s letter to the court requesting a telephone conference to resolve issues related to the East Coast appraisal was not a motion to value the properties. It is beyond cavil that a motion is a request for an order (CPLR 2211) and defendant’s letter contained no request for an order. Thus, the letter plainly could not serve as a notice of motion. Additionally, and unsurprisingly since defendant was not seeking an order but rather a telephone conference, the letter did not specify a return date and was not accompanied by any supporting papers (CPLR 2214 [a] A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Because the letter neither contained a request for an order nor complied with CPLR 2214, it could not have served as a notice of motion. The absence of a medical motion is not a technical defect that can be overlooked; under Sholes a motion is required to generate an order that is appealable as of right.

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Regardless of whether Supreme Court correctly vacated the stipulations that are the subject of this appeal, the stipulations have been vacated and this appeal is moot because the rights of the parties cannot be affected by a determination of this appeal. Because the appeal has been rendered moot we cannot and do not pass on the issues presented.

The dissent asserts that by ruling that the intervening order implicitly vacates the order on appeal, we thereby pass on a substantive issue and render an advisory opinion construing both the status of the order appealed from and the effect of an order not even before us. As is obvious from our decision, we pass on no substantive issues relating to the rights of the parties. Equally as obvious, we are not rendering an advisory opinion construing both the status of the order appealed from and the effect of an order not even before us. Rather, we simply conclude that the order on appeal is moot and therefore the appeal must be dismissed. Of course, we first conclude that the order vacating the stipulations implicitly vacates the order on appeal. But that conclusion merely reflects the exercise of our jurisdiction to determine our jurisdiction.

The dissent states that by moving to vacate the stipulations, personal injury defendants unilaterally prevented this Court from deciding whether the motion court erred in vacating what appears to be a valid agreement between the parties. In the first place, however, defendants took no unilateral action. Defendants made a motion on notice to vacate the stipulations, a motion Supreme Court granted. Second, this Court is not precluded from determining whether the stipulations are valid. To the contrary, we may determine that precise issue should plaintiff perfect his appeal from the order vacating the stipulations.

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On January 29, 2007, plaintiff and defendant entered into a stipulation of settlement on the record before Supreme Court.

The stipulation of settlement also contained provisions requiring plaintiff to assume all of the outstanding liabilities concerning the parcels. The parties apparently intended that plaintiff would pay defendant 55% of the net appraised value of both parcels and, in consideration for that payment and plaintiff’s assumption of responsibility for the outstanding liabilities concerning the parcels, defendant would assign his interest in the parcels to plaintiff, giving plaintiff sole ownership of both parcels. However, no provision requiring defendant to assign his interest in the parcels to plaintiff was included in the stipulation of settlement.

Supreme Court requested appraisals for both parcels from Skyline Appraisals Inc. and East Coast Appraisals, and the appraisals were performed. While neither party objected to the appraisals performed by Skyline, defendant sent a letter to Supreme Court objecting to the appraisal performed by East Coast. Defendant was concerned that the East Coast appraisal was inaccurate and greatly undervalued the parcels. injury Defendant requested a conference between the parties and the court to resolve issues relating to the East Coast appraisal; no motion was made by either party for any relief.

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In response to the question Detective E posed to the ABC Hospital administrator as to whether anyone had recently been treated for “any kind of slash wounds to the face,” the administrator disclosed the patient’s name and address and that the injury patient had been stitched on the left side of his face. Defendant claims this information was privileged because it revealed the cause of his facial wound, a slashing, and that it was acquired through the application of professional medical skill or knowledge. This is pure hyperbole, belied by the record. Defendant’s facial wound, a fresh scar that extended from below his ear almost to his chin, was conspicuous to the average layperson. There was no medical skill or knowledge behind the ascertainment of that information. The hospital administrator’s identification of defendant’s injury and its location, and that he had received facial stitches, revealed no more than what had been readily observable.

Here, there is no issue as to whether the injury at issue was discernible by a layperson. The request identified the nature of the wound, a slash, and its location, the face. Defendant’s reliance on case law, which involved a broad subpoena requesting information on persons treated for stab wounds or other wounds caused by a knife, without identifying the specific nature of the wound or its location, is similarly misplaced. In each of these cases, a medical determination was required to frame a response. That is not the case here.

Moreover, even were we to find a violation of the privilege, suppression of the information imparted would not be required. While it is axiomatic that when a defendant’s constitutional rights are violated, the fruits of such violation must be suppressed, a violation of a statute may be remedied by suppression only if the purpose of the statute is to give effect to a constitutional right.

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In October 2001, defendant and JC got into a fight over a woman, as a result of which defendant’s suffered an injury on his face (a cut from the left ear to his chin). Defendant was treated at ABC Hospital for his wound, which was stitched and bandaged. That incident provided the impetus for a subsequent shooting incident that led to the death of X. The primary issue on appeal from defendant’s conviction for that homicide is his injury claim that certain information provided by a ABC Hospital administrator as to the treatment of a person for a facial wound was obtained in violation of the statutory physician-patient privilege, as it relates to defendant. As a result, he argues, the information obtained from the violation and its fruits-his arrest and identification from a photo array and in a lineup-implicated a constitutionally protected right and must be suppressed.

The suppression hearing adduced the following evidence. Assigned to the shooting death of 16-year-old X, which had occurred at Eastburn Avenue and the service road of the Cross-Bronx Expressway on the morning of October 17, 2001, Detective E learned from the victim’s aunt that the word on the street was that the killing was in revenge for a slashing of a male black at a certain Club several days earlier. JC, the slasher, told Detective E that he had heard that the shooters were some black guys from around 168th Street and College Avenue. Detective E also interviewed C, who related that at about one o’clock on the morning of the shooting, he had heard gunshots and saw a “male black” with a gun pursue a “young Spanish boy” down Weeks Avenue toward the Cross-Bronx Expressway.

On October 18, Detective E went to ABC Hospital and asked an administrator, Ms. BB, “if there were any male blacks that were treated on October 13 for any kind of slash wound to the face” or “if anyone came in for a slashing to the face on that date, October 13th.” Ms. BB gave Detective E an admission slip with defendant’s name and address, xxx Barnes Avenue, and told him that defendant had received stitches on the left side of his face. That same day Detective E showed C a computer-generated black and white photo array containing a “couple of years old” photograph of defendant. C recognized two people in the array, one of whom was defendant, but he “wasn’t too sure” of his identification and “didn’t want to say yes or no” because it was nighttime and the light in the police car was “pretty bad.” C asked to see a more recent photograph or a live person under better lighting conditions.

On October 20, he saw defendant at 168th Street and Findlay Avenue. As the detective approached, defendant removed a silver gun from his waistband and threw it into a garbage can. The detective arrested defendant, who had a “fresh,” “long” scar from below his ear to close to his chin on the left side of his face, and retrieved the gun, a loaded .357 magnum.

The following day, Detective E went to C’s home and showed him a new photo array containing defendant’s arrest photograph, but not the photograph of the other person C had previously recognized in the first array. This time, C recognized defendant’s photograph right away. That same day, four hours later, C viewed a lineup at the Bronx Homicide Task Force. Although the five fillers ranged in age from 30 to 35, and defendant was 23 at the time, Detective E, who would not have conducted the lineup if the fillers had not fit defendant’s description, thought they “all looked similar.” After viewing the lineup for a few seconds, C identified defendant.

In urging suppression of the pretrial identifications as fruit of the poisonous tree, defendant argued that the information obtained from ABC Hospital violated defendant’s physician-patient privilege and his right to privacy under the Fourth Amendment. injury Defendant also argued that the second photo array and lineup were suggestive because only defendant, and not the second person whom C had recognized in the first photo array, appeared in them.

The court, implicitly finding a statutory violation, determined that a breach of the physician-patient privilege does not implicate a constitutional right and that, hence, evidence so obtained need not be suppressed. The court also concluded that the second photo array was not improperly suggestive, noting that C viewed two entirely different photographs of defendant in different positions in the two arrays, one taken approximately two years before the other, and he was unable to make an identification in the first array.

As to defendant’s claim with respect to the information obtained by the police from the administrator at ABC Hospital, the physician-patient privilege, which “generally does not extend to information obtained outside the realms of medical diagnosis and treatment” (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]), was not violated. The privilege is limited to “information acquired by the medical professional `through the application of professional skill or knowledge, and seeks to protect confidential communications, not the mere facts and incidents of a person’s medical history. The privilege is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge.

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II. INABILITY TO PERFORM DAILY ACTIVITIES FOR 90 DAYS

At plaintiff’s deposition, when asked what plaintiff, who had been retired since 2004, could not do following the collision, she first listed climbing steps. After the Transit Authority defendants’ attorney questioned further whether she could climb steps before the collision, and plaintiff answered that she had encountered no difficulty, she listed dancing and lifting. After providing examples of household objects she lifted before but could not lift after the collision, the attorney pursued more questions regarding her climbing, dancing, and injury to her leg, hip, and shoulder.

The inquiry never returned to activities during the 180 days after the collision. Plaintiff never was asked whether or when she ever resumed the previous activities she listed, what other activities she could not do, or how long she was confined to her bed or home after the collision. She did offer, however, that her routine was altered to the extent of attending physical therapy three days per week for over three months immediately following the collision.

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Plaintiff sues to recover for personal injury she sustained July 15, 2005, in a car accident between a motor vehicle owned and operated by defendant M and a bus owned by defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority and operated by defendant J, in which plaintiff was a passenger. Defendant M moves, and the Transit Authority defendants cross-move, for summary judgment dismissing the complaint and cross-claims against these defendants, on the ground that plaintiff has not sustained a “serious injury” entitling her to recover for non-economic loss.

For the reasons explained below, the court grants defendants’ motion and cross-motion insofar as they are based on the absence of a serious injury in the categories of a significant limitation or a permanent consequential limitation of functioning. The court denies defendants’ motion and cross-motion as to the category of an impairment that prevented daily activities for 90 of the 180 days after the collision.

I. SIGNIFICANT OR PERMANENT CONSEQUENTIAL LIMITATION
A. DEFENDANTS’ EVIDENCE
Defendants’ physicians examined plaintiff and reviewed her diagnostic studies and other medical records and found full range of motion in her cervical spine, without any neurological or orthopedic abnormalities, obviating a need to comment on her cervical diagnostic studies. While these physicians found restrictions on range of motion in her lumbosacral spine, they concluded those limitations were not attributable to trauma.

Neurologist Dr. RE, MD specifically concludes that the magnetic resonance imaging (MRI) of plaintiff’s lumbar spine conducted August 9, 2005, a few weeks after the collision: Reveals degenerative changes in the lower lumbar area, in keeping with her age, for which there is no traumatic etiology. There is no accident-related neurologic explanation for persistence of her lower back symptoms that are more likely to be related to the presence of preexisting spondylosis of the lower lumbar spine independent of the subject accident.

The combined findings by defendants’ physicians demonstrate plaintiff did not sustain a permanent or significant limitation in functioning of her spine.
B. PLAINTIFF’S REBUTTAL
Plaintiff’s physician, Dr.H, M.D. began treating plaintiff August 31, 2005, when he found weakness, diminished reflexes, spasm, and tenderness in her lumbosacral spine. In a report dated November 20, 2007, Dr. H found a 28% restriction in range of motion in two planes of her lumbosacral spine. Based on review of electrodiagnostic studies of her lumbosacral spine, Dr. H diagnosed plaintiff with a L4–L5 disc herniation and related radiculopathy, which he concluded were caused by the July 2005 collision and permanent.
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