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Published on: December 19, 2012

Third Party Summary Judgment Awarded by Lower Court, Plaintiff Appeals

by Stephen Bilkis

This action is for personal injuries alleged to have occurred as a result of a motor vehicle accident involving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Personal Injury Lawyer said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the accident.

A source said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, “owned operated and controlled” the traffic signal at the subject intersection. A Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.

A doctor said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a Lawyer said that defendant argues that plaintiff has not satisfied the “serious injury” threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff’s alleged soft tissue spinal injuries do not constitute a serious injury.

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 17, 2012

Defendant Files Motion for Dismissal, New York Appellate Court Rules

by Stephen Bilkis

A motion for the dismissal of the verified complaint was filed by the defendants, who are insurance companies. The plaintiffs were limited partnership and two other corporations; one is a development corporation while the other is a management firm.

A suit for personal injuries were filed against the plaintiffs by a private individual who sustained injuries when he fell from the stairway of a building owned by the plaintiffs and such person was a tenant in the said building. As such, the plaintiffs are now claiming insurance from the defendants pending the personal injury case filed by the tenant against the plaintiffs.

The defendants issued an insurance policy in favor of the plaintiffs for one year, which included commercial general liability. The terms of the policy include the requirement of the insured to inform the defendants, as soon as practicable, of any occurrence that would result to a claim against the insured. This was the situation that happened when the tenant fell off a stairway of the building owned by the plaintiffs during the term of the policy where it may result to a claim against the insured. The defendants were notified of the accident of the tenant. Two witnesses testified to the occurrence of the accident; one was the building superintendent and the other was the property manager. No incident report was made in relation to the accident during that time.

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: December 4, 2012

Plaintiff Brings Summary Judgment Motion For Damages Sustained in a Car Accident

by Stephen Bilkis

This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Personal Injury Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A Lawyer said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A source said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

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