Personal Injury

Published on: May 8, 2014

Defendant’s Motion for Summary Judgment on the Basis of Liability Was Denied

by Stephen Bilkis

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.

Published on: April 28, 2014

New York Appellate Court Says Plaintiff Failed to Rebut Defendant’s Claim of No Triable Issue of Fact

by Stephen Bilkis

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 injury. 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.

Furthermore, plaintiff’s attorney’s affirmation is not admissible probative evidence on medical issues, as plaintiff’s attorney has failed to demonstrate personal knowledge of the plaintiff’s injuries.

Published on: December 18, 2012

New York Court of Appeals Hears Two Dog Bite Cases

by Stephen Bilkis

Two cases are before two courts for resolution.

First Case:

A plaintiff filed an action to recover damages for personal injuries resulting from a dog bite. On 26 June 1986, the Supreme Court of Orange County issued an order against the plaintiff and in favor of the defendants granting the motion to dismiss the complaint for failure to establish a prima facie case. The plaintiff then appeals from the said order of the court.

Published on: December 15, 2012

Plaintiff Files for Structured Settlement, New York Appellate Court Finds for Defendant

by Stephen Bilkis

Petitioner, who is an investment company, filed for the transfer of a structured settlement in its favor pursuant to a personal injury suit filed against by a private victim. The victim suffered injuries due to a motor vehicle accident where his motorcycle hit a pothole on an expressway at Bronx. The victim filed the case against the developer of the expressway structure. After almost nine years since the incident, the case filed by the victim resulted to a settlement agreement and it contained an annuity to be funded with fixed monthly payments for 120 months, which was assigned to an insurance company. The court noted that the personal injuries sustained by the victim were of serious nature which requires serious and extensive medical treatments.

The victim proposed to sell his personal injury structured settlements with a proposed purchase price of $111,552 wherein the total amount of transfers was $174,000. The reasons behind the intention of the victim in selling his structure were due to his plans of converting his family home into two income properties, to pay his outstanding balance from his credit card and to avoid an impending foreclosure of his property.

The duty of the court is to protect the victim from abuses of the sale of his structure by finance companies, like the petitioner, which would purchase them at sharply discounted advances and the court must also determine whether the structured agreement conformed to the minimum requirements of the law. As decided in one Supreme Court case, “before the Court can approve an otherwise procedurally conforming transfer application, the Court must determine that: the transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents; and whether the transaction, including the discount rate used to determine the gross amount and the fees and expenses used to determine the net advance amount, are fair and reasonable.”

Published on: December 11, 2012

New York Appellate Court Weighs in on Attorney-Client Relationships

by Stephen Bilkis

Plaintiffs commenced a legal malpractice action seeking damages allegedly arising from defendant lawyer’s representation of them in a personal injury action. Defendant lawyer then filed a motion for summary judgment dismissing the complaint against him. On 6 August 2007, the Supreme Court of Monroe County issued an order granting the defendant’s motion. Thus, an appeal from the said order followed.

The court finds that the order so appealed from must be reversed on the law, without costs, the motion must be denied and the complaint against defendant lawyer must be reinstated.

Here, the Supreme Court erred in granting the motion of defendant lawyer seeking summary judgment dismissing the complaint against him. While the court agrees with defendant lawyer that he met his initial burden on the motion by submitting evidence that he did not have an attorney-client relationship with plaintiffs, that he had no involvement in the personal injury action and he had no fee-sharing agreement with another defendant lawyer with respect to that action, however, plaintiffs raised a triable issue of fact, whether they indeed had an attorney-client relationship with defendant lawyer at the time of the alleged malpractice.

Published on: December 10, 2012

NY Supreme Court Discusses Slip and Fall Injury Case

by Stephen Bilkis

This case is being heard in the trial term of the Supreme Court of Bronx County part V. The plaintiff is seeking to recover damages for personal injuries that were allegedly sustained by him as a result of stepping on a brick that was broken on a stairway that was not lit leading from the ninth to the eighth floor of Building number 28 of the Edenwald Housing Project. The plaintiff claims that as a result of stepping on the brick he sustained an aggravation of a pre-existing malignant tumor of the left breast.

Case Background

The plaintiff testified that on the morning of February 9th, 1953 he went out to check on the employees who were working on the building. He went to building number 30 first and noticed there were no lights in the building. He moved on to building number 29 and noticed that it too had no lights. He moved on to building 28 and took the elevator up to the fourteenth floor. He got off the elevator and when he went to go back down the button was jammed. The plaintiff then took the stairs. The stairwells did not have any natural light and there were no lights on from top to bottom of the stairwell. He walked down in the dark holding on to the railing. He inspected each floor along the way. When he started to go from the ninth floor down to the eighth floor he stepped on a brick and fell down a whole flight of stairs. He hit his left breast on a bolt on his way down. His nipple was hanging off of his left breast. He was helped to a first aid station and his knee and nipple were bandaged.

Published on: December 6, 2012

Appellate Court Questions Whether Injuries Led to Suicide in Claimant’s Husband

by Stephen Bilkis

In this case before the Court of Appeals of New York the court is presented with the question of whether there is a connection between the suicide of the claimant’s husband and the physical injuries he sustained five and fourteen years before he committed suicide.

Case Background

The accidents that the claimant’s husband sustained depressed him greatly and have been found to be the cause of him choosing to take his own life some years later. The decedent left a suicide note before overdosing on barbiturates. The Workers Compensation board has found as a fact that he committed suicide.

Published on: December 5, 2012

This case is being heard in the Supreme Court of the State of New York in Queens County

by Stephen Bilkis

This case is being heard in the Supreme Court of the State of New York in Queens County. The defendants of the case have moved for an order to set aside a jury award of damagesthat was returned on the 22nd of June, 2005 and for a new trial to be granted in the interest of justice. The defendants contend that the amount of the awards issued by the jury are excessive and are not supported by the evidence that was provided in the case. The jury awarded the plaintiff $2,500,000 for past pain and suffering, $1,000,000 for future loss of earnings over the next 32 years and $12,500,000 over 52 years for future pain and suffering. There have been several conferences held in regard to this case, but no agreement could be reached and now it is up to the court to decide.

Case Background

The trial of this instant action was bifurcated. The liability portion of the trial was held on the seventh of June, 2005 and the jury returned with a verdict on the ninth of June finding that negligence of the defendants was the only cause of the accident in which the plaintiff was injured.

Published on: November 30, 2012

New York Supreme Court Discusses Statute with Disproportionate Impact on Particular Demographic

by Stephen Bilkis

The case before the Supreme Court of New York County involves a significant statute that appears to have a disproportionate impact on people of color and those with a limited income.

The statute is found in the General Obligations Law of New York and is known as the Structured Settlement Protection Act. This statute requires judicial approval as a precondition to an injured plaintiff’s sale to a third party of future structured settlement payments. The main issue with this statute is that it allows a structured settlement payment to be purchased by a third party, typically for less than what the settlement is worth. This is not ideal for those that are financially stretched and need money right away as they see this as an opportunity rather than the bad deal that it may turn out to be.

Case Background

Published on: November 29, 2012

Plaintiff Argues They Aren’t Obligated to Indemnify the Insured, NY Appellate Court Decides

by Stephen Bilkis

This case is being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. The case deals with a judgment that stated the plaintiff was not obligated to defend or indemnify its insured, the defendant, in an underlying personal injurycase that is pending in the Supreme Court of Kings County. The plaintiff of the case is appealing the judgment from the case in the same court that denied her cross motion for summary judgment to declare that the disclaimer of coverage issued to the defendant was a not valid against her and that the plaintiff is obligated to defend or indemnify the defendant in the underlying personal injury action.

Court Decision

The court is ordering that the original order from the Supreme Court of Kings County is reversed as appealed from. The cross motion is granted and remitted to the court for the entry of a judgment declaring that the disclaimer of coverage was invalid against he defendant and they are obligated to defend and indemnify their insured in the underlying personal injury action.