Articles Posted in Personal Injury

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The cases to which defendant cites do not warrant a different result (cf. Diamond v Diamond Diamonte, 57 AD3d 826, 869 NYS2d 609 [2d Dept 2007] [plaintiff failed to appear ready to proceed for two successive court dates during the trial-in-chief, when she was scheduled to undergo cross examination; on the second occasion, which was marked “final” by the court, she was outside of the courthouse in her car and refused to enter the building. Although the court directed her husband, the plaintiff , to bring her into the courtroom, and afforded them adequate time to appear in the courtroom, both of the plaintiff’s then failed to appear before the Supreme Court ready to proceed, which conduct evidenced an intent to abandon the action]; Fuchs v Midali America Corp., 260 AD2d 318, 689 NYS2d 80 [1st Dept 1999] [defendants failed to show a reasonable excuse for their failure to appear on two scheduled trial dates; they failed to explain why some indication of their scheduling needs could not have been conveyed to the court]; Teachers Insurance v Code Beta Group, Inc., 204 AD2d 193, 612 NYS2d 124 [1st Dept 1994] [where defendants’ attorney was aware of complications from eye surgery more than a month before trial was set to begin on February 24, 1992, but failed to arrange for substitute counsel as the court had directed two months before, attorney’s failure to seek substitution of other injury counsel was not excusable given these circumstances]).

Here, Mr. D communicated to the Court, with consent from the defendant on both scheduled dates, that he was actually engaged in two other cases. The XX matter in Part 52 was adjourned less than two weeks prior to March 4th for a traverse hearing. And, defendant’s claim, without documentary support, that the records he reviewed failed to show that Mr. D was actually engaged, fail to overcome the submissions by plaintiff indicating that Mr. D was scheduled to appear in ABC Realty in New York County, and XX in Bronx County on the dates this matter was scheduled for jury selection. Further, the instant matter was scheduled for jury selection; a jury trial had not yet been commenced.

Based on the foregoing, it is hereby ORDERED that the motion by plaintiff for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar is granted, and this matter is restored to the active calendar; and it is further ORDERED that the parties shall appear in Part 40 for trial on July 13, 2009, no further adjournments.

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Opposition

Defendant argues that plaintiff has failed to establish a reasonable excuse for the default. Although Mr. D submitted an Affirmation of Engagement noting that he was on trial starting March 4, 2008 on ABC Realty, Mr. D’s office was advised that Supreme Court takes precedence over any Housing Court matters and was granted an adjournment until the following day in order to be present in Court and/or have a personal injury attorney duly licensed in New York to appear on his behalf.

On the following day, instead of sending an attorney admitted to practice in New York, Mr. D again sent his paralegal and an attorney admitted in Florida. Also, although the second Affirmation of Engagement advises that Mr. D was engaged in a Housing Court action in Bronx County, entitled XX Realty v Hanagan, defendant’s counsel personally reviewed the records of the Bronx County Civil Court and found no Index Number and/or case matching the case of XX Realty v H. Furthermore, a review of the records of the New York County Civil Court revealed that there were no records and/or Index Number matching a case entitled WWW v Z referenced in the plaintiff’s counsel’s motion at paragraph 6 wherein he indicates that he was engaged in a Housing Court trial on that matter.

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In this trip and fall personal injury action, plaintiff moves for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar.

Factual Background

Plaintiff claims that on August 28, 2003, he tripped and fell on an defective protruding lip found on the door saddle while entering the premises located at xxx West 59th Street (the “premises”) owned by defendant.

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Thereafter, according to Plaintiff’s opposition papers, as time went by and no entry of appearance was received, Plaintiff was reticent to file a bite motion for default judgment her counsel personally went to Defendant’s Law Department, who verified that the complaint had been received but had not been assigned. According to Plaintiff’s opposition papers, her counsel was instructed to contact the Defendant’s Law Department in Bronx County and, after many phone calls we spoke directly to attorney B, Assistant Corporation Counsel. He admitted that the Summons and Complaint was in his computer system, but had not been assigned to an attorney. Subsequently, Plaintiff noted that Plaintiff’s first name was spelled incorrectly. Since an answer had neither been received from Defendant nor a request to extend the time to answer, Plaintiff filed an Amended Summons and Complaint on November 15, 2011 to reflect plaintiff’s first name correctly.

Defendant’s answer asserted fifteen affirmative defenses, however those germane to the instant motion are the following: (1) “The defendant(s) are not subject to the jurisdiction of this court, in that the summons does not bear the date it was filed with the clerk of the court; (2) “The action has not been commenced in compliance with CPLR section(s) 304, 306-a and/or section 400 of the CCA; (3) The action on behalf of the plaintiff(s) is barred by reason of the fact that it was not commenced within the time provided by the Statute of limitations; (4) This court lacks jurisdiction over the defendant(s) in that said defendant(s) were not personally served with the summons; (5) “Plaintiff fails to comply with section 3017 of the CPLR.”

On December 27, 2011 the instant motion was made, using the same index number as Plaintiff on her motion to amend the Notice of Claim.

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The instant action seeks damages for personal injury Plaintiff allegedly sustained on July 3, 2010 at the intersection of 170th Street and Jerome Avenue, Bronx, New York. Plaintiff alleges that while waiting at a bus stop at the intersection of 170th Street and Jerome Avenue, she was forced off the sidewalk and fell in a hole in the ground and sustained personal injury.

Plaintiff served on Defendant a Notice of Claim on or about August 18, 2010. In the Notice, Plaintiff alleged that the nature of the claim arose from Defendant’s negligence “in the maintenance of the sidewalk/crosswalk located at the intersection of 170th street and Jerome Avenue, Bronx, New York.” On October 29, 2010,Plaintiff submitted to a hearing. After the hearing, by notice dated January 3, 2011 the City of New York Office of the Comptroller (hereinafter “Comptroller’s office”) informed Plaintiff’s counsel that the claim was disallowed pursuant to § 7-210 of the New York City Administrative Code. Thereafter, according to Plaintiff’s opposition papers, her attorney’s office contacted the Comptroller’s office and explained that the sidewalk defect was not private landowner property but rather was a piece of sidewalk located within the bus stop, which is City of New York maintained property.

Subsequently, according to plaintiff’s opposition papers her counsel’s office was instructed by the Comptroller’s office to file an amended notice of claim. Thus, on February 7, 2011 Plaintiff served Defendant an amended Notice of Claim in which she alleges that the nature of the claim arose from Defendant’s negligence in the maintenance of the street annexed to the bus stop at the intersection of 170th street and Jerome Avenue, Bronx, New York. Nevertheless, by notice dated February 10, 2011 the Comptroller’s office informed the plaintiff that her amended notice of claim was disallowed because it was not filed within (90) days from the date of the occurrence as required by General Municipal Law Section 50-e.

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In this personal injury action, plaintiff alleges that he tripped and fell over a separate level inside the premises of the Bank Street Theater, then located at 155 Bank Street, New York, New York (the “Theater”). Defendants now move for summary judgment dismissing Plaintiffs complaint.

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the cause of action has no merit, sufficient to warrant the court as a matter of law to direct judgment in his or her favor. Thus, the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact.

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact. Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or to tender an acceptable excuse for his or her failure to do so. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. The opponent “must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist” and “the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief.

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The City also cites Wills v Amerada Hess Corp. in support of dismissal. However, like Parker, Wills is distinguishable from this case on the law and the facts. In fact, Wills is similar only in that Dr. Bidanset appeared as an expert toxicologist in both cases, and that the plaintiffs in both cases developed cancer. In Wills, the decedent was a seaman on one of the defendant’s ships. He died of squamous cell carcinoma of the head and neck, which the plaintiff claimed was caused by exposure to carcinogens which were present on the ship. The District Court was critical of Dr. Bidanset for first espousing a dose-response relationship between the decedent’s exposure to hyrdocarbons and his development of squamous cell carcinoma of the head and neck, and then failing to quantify exposure levels or otherwise substantiate the causal threshold or connection. Notably, at his deposition in Wills, Dr. Bidanset admitted that smoking and drinking are the largest risk factors for squamous cell carcinoma, and that the decedent was a heavy cigarette smoker and consumed moderate amounts of alcohol. After a hearing under Daubert, the District Court determined to exclude Dr. Bidanset’s opinions. It granted defendant summary judgment, subject to the right of the plaintiff to file an affidavit seeking additional discovery relevant to her theory of causation.

By contrast to Wills, this action concerns a number of plaintiffs, all of whom live near the Pelham Bay landfill, who developed either acute lymphoid leukemia or Hodgkin’s disease. The record contains epidemiological reports from both plaintiffs and the City, with differing conclusions about whether the incidence of cancer was high in the area closest to the landfill. Further, there is significant evidence that these plaintiffs were exposed to a variety of carcinogens, over an extended period of time, through a variety of exposure pathways. It is not surprising that plaintiffs’ toxicologists did not present a specific dose-response threshold of any particular carcinogen to support their opinions that plaintiffs’ cancer was caused by exposure to the landfill. Neither Dr. Bidanset nor plaintiffs’ other expert toxicologist purported to establish a dose-response relationship between the large number of carcinogens in the landfill for over a decade and plaintiffs’ cancers. Instead, plaintiffs have proffered a combination of epidemiological and toxicological reports to support the theory that their extended exposure to hazardous levels of numerous carcinogens in this particular landfill caused their cancers. Moreover, Dr. Trainor, one of plaintiffs’ personal injury experts, identified at least four pathways by which plaintiffs, and other individuals in proximity to the landfill, could have been exposed to those carcinogens.

In fact, both plaintiffs and the City rely on epidemiological studies in support of their positions, and the parties even share reliance on the opinion of a mutual expert, Dr. Neugebauer. To the extent that the City challenges the methodology of Dr. Neugebauer’s study, which found an increased incidence of acute lymphoid leukemia in the population in closest proximity to the landfill, and the failure to account for racial distribution, these issues are properly the subject of cross-examination at trial, as they go to credibility and to the weight to be given to the evidence. Similarly, plaintiffs’ experts are properly subject to cross-examination, and the substance of their reports a proper subject for questioning. However, as neither the epidemiological personal injury nor the toxicological submissions concern novel science, Frye’s concerns are not implicated and no pretrial hearing was required.

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Epidemiology itself is certainly not novel. It is defined as (1) a branch of medical science that deals with the incidence, distribution, and control of disease in a population; [or] (2) the sum of the factors controlling the presence or absence of a disease or pathogen. It is a science which focuses on the question of general. Epidemiological studies, such as those conducted by the City and plaintiffs, are similarly not novel. In addition, numerous courts have held that this field of science is the primary generally accepted methodology for demonstrating a causal relation between a chemical compound and a set of symptoms or a disease. At least one court has noted that epidemiological evidence is indispensable in toxic and carcinogenic personal injury tort actions where direct proof of causation is lacking.

Plaintiffs’ toxicological evidence is similarly admissible without a Frye hearing. Toxicology is likewise not a novel field of science. Rather, classically it is known as the science of poisons. In fact, the City’s argument is not that the field is novel, but that plaintiffs’ toxicological submissions fail to show causation because they do not give a specific dose-response relationship19 between the carcinogens in the landfill and plaintiffs’ cancers.

Citing Parker v Mobil Oil Corp, a case involving an individual plaintiff who claimed that exposure to benzene on the job caused him to contract acute myelogenous leukemia (AML), the dissent adopts the City’s argument. In Parker, the Second Department dismissed the action because the plaintiff’s experts did not quantify the level of benzene to which plaintiff had been exposed on the job, or provide the dose-response relationship between benzene and AML.

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This appeal concerns nine lawsuits brought against the City between 1991 and 1993 by residents of the Bronx neighborhoods closest to the landfill. Those neighborhoods include: Country Club, Pelham Bay, Spencer Estates, and City Island. In these actions, plaintiffs allege that extended exposure to hazardous substances emanating from the landfill caused the development of either acute lymphoid leukemia or Hodgkin’s disease. The actions were commenced separately, and subsequently consolidated for purposes of the City’s motion to dismiss. They include: (1) Nonnon v City of New York;2 (2) Simpson v City of New York;3 (3) Irizarry v City of New York;4 (4) Carollo v City of New York;5 (5) Walsh v City of New York;6 (6) Arisio v City of New York;7 (7) Parmigiano v City of New York;8 (8) Phillips v City of New York;9 and (9) Nessen v City of New York.10 There were 29 plaintiffs in the original nine actions. All claim that the City’s negligence in subjecting them to extended exposure to dangerous levels of carcinogens has proximately caused them personal injury and/or death.

The City moved to dismiss the claims of 1311 plaintiffs as time-barred, and it sought to dismiss all nine actions for failure to state a cause of action. It was the City’s position that plaintiffs failed to allege a viable causal connection between the city landfill and plaintiffs’ cancer. In support of the argument that all of the actions should be dismissed, the City submitted a 1988 study conducted by its Department of Health, specifically the Environmental Epidemiology Unit, within the Division of Community and Occupational Health. The study, entitled An Evaluation of Childhood Leukemia in the Pelham Bay Area of the Bronx, was prompted by residents’ concern that the Pelham Bay landfill may have caused elevated disease rates in the surrounding population. The study analyzed all types of leukemia in the Pelham Bay area, as reported to the New York State Cancer Registry from 1974 to 1985. That study concluded that there was no evidence of an increased incidence of childhood leukemia during this period as compared to the incidence rates of childhood leukemias in the rest of the city.

Also submitted by the City was a second Department of Health study conducted in 1994, and an addendum to that report dated 1996. The second study, which was based upon cancer cases reported to the State Department of Health Cancer Registry from 1978 to 1987, examined rates for all types of cancer combined and for 13 specific types of cancer in adults and three types of cancer in children. The City’s 1994 study found that for the diseases it studied in both adults and children in the Pelham Bay area cancer rates generally were consistent with such rates for the rest of the city.

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Before the statute was amended in 2004 to add the proviso that there is no requirement for the court to find that a payee is suffering from a hardship to approve the transfer. The legislative history of the 2004 amendment states: An adult who has not been adjudicated incompetent or incapable of handling his or her own affairs is generally capable of determining what is in their own best interests with regard to their property and affairs, including their structured settlement payment rights, without having to demonstrate or prove hardship, provided the consumer has been afforded the admonitions to consult with counsel, the rights of cancellation, and the disclosures required by the 2002 Act.

Nonetheless, the existence of hardship, such as a looming foreclosure on the family home or the need for life-sustaining medical treatment, weighs heavily in favor of determining that a transfer of structured settlement rights is in the best interest of the payee.

Hardship, or its absence, also affects the interplay between the best interest standard and the fair and reasonable standard. The more pressing the need, the more reasonable it may be for a payee to obtain immediate cash at a steep discount.

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