Articles Posted in Personal Injury

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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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The issue in this car accident case is whether the plaintiff has sustained a “serious injury” as defined by the New York Insurance Law statute. According to the law, in order for a plaintiff to make a claim for pain and suffering, the plaintiff must have suffered a serious injury. The statute provides examples of what would be considered a serious injury. Some of those examples include: an injury that results in death, dismemberment, significant disfigurement, fracture, permanent loss of a body organ, or significant limitation of use of a body function or system.

The plaintiff and defendant were involved in a car accident. The plaintiff filed a personal injury lawsuit against the defendant based on suffering an injury to her spine including a disc herniation in the accident. The defendant moved for summary dismissal of the case, asserting that the plaintiff did not suffer a serious injury as defined by Insurance Law § 5102 (d).

A motion for summary judgement is a request for the court to rule that the other party has no case. When as in this case the defendant makes a motion for summary judgement, the defendant is asserting that because there are no facts which can be reasonably disputed, the case should not go before a jury at all. In other words, based on the law, the defendant must win because there is no way that the plaintiff can win.

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Labor Law § 240(1) states that all “contractors and owners and their agents, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, ladders, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The purpose of this statute is to “protect workers by placing the `ultimate responsibility’ for worksite safety on the owner and general contractor, instead of the workers themselves”.

Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker “proper protection,” absolute liability is “unavoidable” under Labor Law § 240 (1), even if the injured worker contributed to the accident. An owner or contractor who breaches that duty may be held liable in damages regardless of whether it actually exercised supervision or control over the work. Labor Law § 241(6) concerns safety conditions in “areas in which construction, excavation or demolition work is being performed.” Allegation of a violation of an Industrial Code regulation is a prerequisite to an action under this section of the statute. Absent direction or supervision of the construction work, it has been held that engineers cannot be held liable for injury under Labor Law § 241(6).

To establish a prima facie case of negligence, a plaintiff must demonstrate (1) that the defendant owed him a duty of reasonable care, (2) a breach of that duly, and (3) a resulting injury proximately caused by the breach. The threshold question in tort cases is whether the alleged tort feasor owed a duty of care to the injury party. It is the court’s responsibility to determine whether there is a duty, and “involves a very delicate balancing of such considerations as logic, common sense, science, and public policy”. There must be proof of supervision or control of the work, in order for an engineer to be held liable, and absent such supervision, there is no negligence for the failure to provide a safe place to work as a matter of law.

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A Bronx Estate Lawyer said that, by decision and order dated November 12, 2008, the motion brought by fourth-party defendant to dismiss the cause of action in the fourth-party complaint sounding in common law indemnification and contribution, was granted for the reasons stated on the record at oral argument. Remaining to be decided arc the cross-motions by third-party defendant Transportation Group which is defending against claims for indemnification and contribution asserted by NAB Construction Corporation, and by defendant/second third-party plaintiff.

NAB Construction seeks partial summary judgment and dismissal of the Labor Law causes of action, and Parsons Transportation seeks summary judgment and dismissal of the complaint in toto, both moving pursuant to CPLR 3212, and 3211 (a) (1) and (7). Parsons in the alternative seeks leave to amend its answer to add defenses and counterclaims of contractual indemnification and contribution as against NAB. For the reasons which follow, both cross-motions are granted in part and otherwise denied.

This is an action based on alleged violations of Labor Law ^§ 240 (1), 241(6) and 200 and on common law negligence. Plaintiffs seek to recover damages for personal injury sustained by the employee on January 7, 2003, while working as an inspector on the Bronx-Whitestone Bridge. The employee alleges he was injured when he was blown by a wind gust from his position on the bridge cable, causing him to fall to a platform positioned a few feet below.

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The action commenced was filed by plaintiff against defendant. That action was consolidated with the actions against the remaining defendants. The complaints assert causes of action for common law negligence and violation of Labor Law §§200, 240, 241(6) and the Industrial Code of the State of New York 12 NYCRR §23-1.7(b)(1) et seq. This action arises out of an incident wherein the plaintiff sustained injuries while working on a construction worksite and was caused to fall as a result of an open, loose and/or unsecure manhole cover and for which injuries the plaintiff seeks monetary damages.

A New York Personal Injury Lawyer said that the plaintiff testified to the effect that he began employment as a laborer with his employer and was working for them on the date of the accident. As a laborer, he was involved in demolition, removing debris and throwing it into a dumpster. He was working at apartments inside a building with four other workers gutting bathrooms and kitchens, and taking out walls by removing sheet rock. The debris was taken to dumpsters outside the building. Two dumpsters being used by his employer were placed by the curb on the north side of the street and a third dumpster was placed on the south side of the road across from the building he was working on. His supervisor told him to tell the sheet rock guys to back up the truck parked on the north side so he could move the empty dumpster from the front of the sheetrock truck over to the full dumpster so it would be closer to where he was working. Plaintiff then walked down the sidewalk in front of the building, used the port-a-potty across the street from his building, remained on the south side of the street, and spoke to the shop Stewart. He then walked at an angle between the two sheetrock trucks, crossed in front of the one sheetrock truck and walked up onto the grassy area and asked the sheetrock driver to move his truck. He was about fifteen feet from the manhole cover, but did not observe it at that point or at any time up to the occurrence of the accident. He walked backwards away from the truck as the truck was backing up, directing the truck driver so the truck would not hit the low-hanging wires. He then stepped on the manhole cover with his right foot. The manhole cover, which was on top of the manhole, opened up by turning up on its edge, and his both his legs fell into the manhole. Hence, an action was filed in court.

A New York Injury Lawyer said that the defendant/third-party plaintiff impleaded plaintiff’s employer on the date of the accident, by commencing a third-party action for common law indemnification, contractual indemnification, breach of agreement, and judgment over against the third-party defendant. In cross-motion, the defendants seek an order pursuant to 22 NYCRR §202.21(e)vacating the Note of Issue and Certificate of Readiness.

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That leaves the ninth and final category with which to sustain her claim for serious injury: 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 their usual and customary daily activities for not less than 90 days during the 180 days immediately following occurrence of the injury or impairment. In order to prosecute a claim for serious injury pursuant to this category under Insurance Law § 5102(d), Plaintiff is required to show something more than slight curtailment of the material acts which constitute their usual and customary daily activities, and must support that claim with medical proof attributing such impairment to a medically determined injury.

Plaintiff must demonstrate that the motor vehicle accident prevented her from performing a substantial part of her usual and customary daily routine for 90 out of the 180 days immediately following the accident. Furthermore, in order to sustain a claim for serious injury, Plaintiff is required to establish “competent proof connecting the condition to the accident”

As pointed out by counsel for defendants, Plaintiff presented for an independent orthopedic medical examination, she reported to said doctor that she did not seek emergency room treatment following the accident and that she was unemployed at the time of said accident. The examining physician concluded: the diagnosis was consistent with resolved cervical and lumbar sprain; not physical therapy or orthopedic treatment was reasonable, related or necessary; there is no objective evidence to indicate the need for diagnostic testing, household help, durable medical equipment, surgery or special transportation; she possesses no orthopedic disability and is capable of gainful employment.

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In this personal injury action, plaintiffs claimed to recover monetary damages for personal injury allegedly sustained by him as the result of a motor vehicle accident that occurred in County of Suffolk, State of New York. A New York injury Attorney said that defendants filed several motions: the first one was filed regarding precluding Plaintiff from offering testimony at trial of this action, and dismissing Plaintiff’s Complaint in its entirety on the grounds that he has not complied with the Order of the Court, or otherwise. Second, is a motion regarding Summary Judgment against the plaintiff.

The Court ruled that in order for the Court to grant such relief, it must clearly appear that there are no material issues of fact. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.

Once a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact is shown, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action.

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Plaintiff submitted no admissible proof of objective findings contemporaneous with the accident that would indicate causality between the injury allegedly sustained in the accident and the accident itself. The causal connection must ordinarily be established by competent medical proof.

Additionally, plaintiff has failed to rebut evidence of a preexisting degenerative condition. Although defendants’ independent experts conclude in their affirmed reports that plaintiff’s MRI films showed evidence of degenerative changes, and chronic degenerative spinal disease which is a pre-existing condition, plaintiff failed to attach evidence from any experts indicating their awareness that plaintiff was suffering from such condition and failed to address the effect of these findings on plaintiff’s claimed accident injuries. Hence, plaintiff failed to rebut defendants’ claim sufficiently to raise a triable issue of fact.

Moreover, there is an unexplained gap in treatment or cessation of treatment. Specifically, the record is devoid of any competent evidence from any health care professional of plaintiff’s treatment, need for treatment, or if and why plaintiff’s treatment ceased. Courts have held that a gap in treatment goes to the weight of the evidence, not its admissibility. Here, however, there is not just a gap in treatment, but, apparently, a total lack of competent proof of any treatment whatsoever by a health care professional which is related to any condition allegedly caused by this accident. Plaintiff has inexplicably provided no competent supporting documentation of medical treatment. Plaintiff has failed to submit an affirmation which provides any information concerning the nature of the plaintiff’s medical treatment or any explanation for the several year gap between plaintiff’s medical treatment which appears to have ceased in 2003 and the date of the opposition papers to the instant motion in 2007. Plaintiff proffered no excuse for her failure to submit sworn medical records and doctor’s reports in admissible form concerning her treatment.

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The affirmed report of defendants’ independent examining neurologist, indicated that an examination conducted on April 7, 2006 revealed that there is no permanency from a neurological perspective. He opined that there is no objective evidence of any neurological disability or abnormality.

The affirmed report of defendants’ independent examining psychiatrist, showed that an examination conducted on June 26, 2006 revealed that plaintiff’s concentration, computational ability, memory, attention, judgment, and insight were all good. He opined that there is no disability or permanency and that plaintiff is capable of performing her usual daily activities without restrictions.

The affirmed report of defendants’ independent evaluating radiologists showed that an MRI of the left shoulder taken on November 21, 2002 revealed an impression of “Mild degenerative changes about the acromioclavicular joint resulting in mild impingement; otherwise unremarkable study. There are no findings to suggest trauma or sequel. An MRI of the cervical spine taken on December 12, 2002 revealed an impression of degenerated, bulging L5-S1 disc in association with productive bony changes. The doctors state that the findings are consistent with chronic degenerative spinal disease which is a pre-existing condition.

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In this action, plaintiff seeks to recover damages from defendants for personal injury arising from a “slip-and-fall” type accident, occurring on October 26, 2002. Plaintiff alleges that she was a passenger on a bus, and that as she was attempting to exit the bus, she was caused to fall due to an unsafe, wet, and slippery condition that existed upon the floor of the bus.

Defendants’ motion for summary judgment on the basis of liability was denied as defendants have failed to show that there is no substantial issue of fact in this case and therefore nothing to try. The trial court opined that summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue.

Under the “no-fault” law, in order to maintain an action for personal injury, a plaintiff must establish that a “serious injury” has been sustained. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a “serious injury.” When a defendant’s motion is sufficient to raise the issue of whether a “serious injury” has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury.

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