From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

A 27-year-old Howard Beach college student, Angela Johnson, was killed Saturday at around 9:45 A.M. when her 1995 Nissan Maxima was struck by a fire truck racing to a fire in Queens.

Johnson was heading south on 155th Street, the fire engine was westbound on 111th Avenue. The intersection was controlled by four-way stop signs. The Maxima stopped briefly at a stop sign and proceeded into the intersection where the FDNY truck hit it, crushing the car and pushing it about 100 feet.

Witnesses say that the fire truck, Engine 275, was on its way to a house fire in Jamaica, and had on its lights and siren.

Firefighters got off the truck and pulled Johnson from her car. She was taken by ambulance to Mary Immaculate Hospital, where she died from her injuries.

Six firefighters were hurt in the accident and were treated at Long Island Jewish Medical Center.

Comment: Much as with police, a fire truck heading to an emergency call with lights and siren on is virtually immune from tort liability under New York’s Vehicle and Traffic Law Section 1104. See my comments in my prior blog of March 26, 2008.

Arbitration and mediation are two types of Alternative Dispute Resolution (ADR), which is a way to resolve conflicts outside of traditional lawsuits and courtrooms. Sometimes attorneys are involved and sometimes not.

ADR may be used in:

Divorce or child custody/visitation disputes;

Personal injury or accident cases;

Consumer complaints (such as car sales);

Business and commercial disagreements;

Complaints against financial and brokerage companies;

 

Landlord-tenant fights;

Minor criminal matters.

Mediation is conducted by a "mediator," arbitration by an "arbitrator" (or in special cases, more than one arbitrator acting together, called a "panel"). Arbitrators and mediators are neutral and have no interest in the outcome of the proceeding, they are usually retired judges or lawyers being paid by the hour by the parties involved.

To proceed to arbitration or mediation the parties generally use a private ADR company. The ADR session typically is held in a private office, rather than a courthouse. An agreement is signed, committing to follow that company’s arbitration or mediation rules.

New York’s Civil Practice Law and Rules provides at Section 7501:

Effect of arbitration agreement A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.

A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.

The difference between arbitration and mediation is that arbitration is binding and final and mediation is not – if the parties mediating can not be made to agree, nothing is resolved.

Mediation can be helpful in bringing two (or more) sides together. Mediation procedures vary, but the parties usually meet first with the mediator to explain their positions. The mediator may then meet with each party separately, going back and forth to reach a resolution. Most disputes are settled, and often the parties are asked to sign a written "settlement agreement," which is binding and final.

Arbitration is more like going to court; it’s a "mini-trial." An arbitrator hears evidence and listens to witnesses and makes a decision, acting as a private judge and jury. The arbitrator makes a decision, called an "award." The arbitrator's award is final, may not be appealed, and may be enforced like a court judgment under Article 75 of New York’s Civil Practice Law and Rules.

Why ADR? Because: it’s inexpensive and fast. Stress tends to be reduced because the result is quick and final. The case is over and done with.

To resolve New York personal injury and accident cases, either mediation or arbitration may be used.

In mediation the plaintiff or claimant will send an attorney who may or may not have the client attend. The defense will either produce an insurance company representative or an attorney who can telephone in to the insurance company for settlement authorization as the parties near agreement. Either side may submit hospital reports, medical reports, photographs, or other materials to assist the mediator in understanding the nature of the case.

In arbitration, the parties present witnesses or evidence, although the neither side need have doctors or other expert witnesses appear and testify, instead submitting their reports. This can result in tremendous cost savings.

A device often used in New York accident arbitrations is the high/low agreement. This means that the parties will agree, in advance, that the arbitration award will not exceed a certain amount, and not go below a different amount. For example, if the parties agree to a $50,000/$100,000 high/low (more accurately it could be called a low/high), than if the arbitrator awards an amount below $50,000, the plaintiff would still get $50,000. If the arbitrator awards more than $100,000, the plaintiff would only get $100,000. If the arbitrator awards an amount between $50,000 and $100,000, the plaintiff would get that exact amount. The existence of a high/low agreement is generally not disclosed to the arbitrator. The smart plaintiff’s attorney will have the client sign off on arbitration and the high/low agreement, because the client is limiting his or her potential monetary recovery, and giving up both the right to a trial in court and the right to appeal an unsatisfactory award.

Advantages of a high/low agreement: The insurance carrier for the defendant can ensure that an award will not exceed its available insurance company. The plaintiff can ensure that he or she gets something, and will not walk away empty-handed.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

At around 9:45 P.M., 71 year-old Nezilia Augustin was crossing Eastern Parkway at its intersection with Utica Avenue, in Brooklyn, when she was struck by a car. She was then struck by a second car.

She was later pronounced dead at King County Hospital.

Both drivers remained at the scene and are not expected to be charged with any wrongdoing.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

The N.Y.S. Unified Court System, in its on-line Glossary of Legal Terms – http://www.courts.state.ny.us/lawlibraries/glossary.shtml#I – has the following definition:

infant's compromise: a civil proceeding or motion for obtaining court approval of the settlement of an infant's claim

a civil proceeding or motion for obtaining court approval of the settlement of an infant's claim

 

Legally, an "infant" is a person under age eighteen. In New York State, an infant’s case can not be settled without the approval of a judge, not even if the parent wants to accept the settlement. This situation typically arises when the infant has a claim or lawsuit for personal injury arising out of an accident. The reason is simple: to protect the infant and tie up his or her money at least until the age of eighteen.

New York State’s Civil Practice Law and Rules provides at Sections 1206 and 1207 for the authority of the Court in these matters. A judge plays several roles. First, the settlement can be refused, if for some reason the judge feels that it is inadequate, in other words, not enough money. Second and equally important, the judge can direct where the money is held or invested for the infant. Usually, the attorney recommends a proposed course of action for the investment.

The judge also approves the attorney’s fee. If the judge feels that the attorney is seeking too large a fee for too little work, than the lawyer’s fee may be reduced.

If the sum of money involved is not large, and the infant is not suffering from any kind of mental disability that would prevent him or her from managing the money at age eighteen, the money is usually ordered to be deposited into a bank account and held jointly with the bank, for the ultimate benefit of and use by the infant. Large settlement amounts or infants who may be receiving government benefits (such as Medicaid or SSI) present a special challenge.

In those circumstances, special trusts, designed to give the child some use of the money while preserving government benefits, may be in order. Sometimes the lawyer may call on a consultant to devise a "structured settlement." A structured settlement is designed to invest the infant’s money profitably, while ensuring that the money is paid out over time, and not all available to the infant at age eighteen. Structured settlements can span years, with payments made monthly or quarterly, and with larger payments timed to coincide with anticipated college tuition or the purchase of a home, or anything that the infant, parents and attorney can anticipate.

Under certain rare, emergency circumstances an infant’s money can be withdrawn early – before the eighteenth birthday. But this requires a judge to approve the request, and judges are careful to ensure that the money is not being used for the family’s regular living expenses.

Some terminology:

An infant or infant’s "compromise order" is the paper signed by a judge approving the settlement of the infant’s claim, authorizing payment to the attorney, and empowering the infant’s parent to sign a release settling the claim.

An infant or infant’s "compromise hearing" is the courthouse meeting where the judge considers the settlement. Present are the judge, attorney, parent and infant. Typically, the judge makes sure that the terms of the settlement are fair and understood by the parent and, if he or she is old enough, by the child. Also, that they know that the case or claim is being settled and disposed of forever; there is no going back for more money, at any time. The judge may also ask the infant some questions about his or her physical condition, to try to see if any injuries have healed, or look at any scars that the infant may have suffered, as part of the process of evaluating the fairness of the proposed settlement.

From:  New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

Six people were injured at around 11:00 A.M. Friday when a 1999 Nissan automobile jumped the curb outside the State Supreme Court building at 60 Centre Street, in Manhattan.

The car drove onto the sidewalk, crashed into a coffee cart operated by Jaweed Naseri, 26, of Douglaston, Queens. Naseri was able to jump free of the coffee cart and was not hurt.

The driver, Lorenzo Bello, 33, of Ridgewood, Queens, was taken to Bellevue Hospital. He appeared dazed and may have suffered a seizure while driving. He was arrested and charged with reckless endangerment and aggravated unlicensed operation of a motor vehicle, a misdemeanor, for driving with a suspended license.

Pedestrian Max Verline was walking toward the cart when he was struck by the car on the steps of the courthouse, suffering a broken or fractured leg. Another passer-by, Theresa Rodriguez, suffered minor injury and scrapes to her leg.

Commentary: In light of Bello’s reported seizure, he may bear no legal liability to the inured people, even though he was arrested for driving with a suspended driver’s license.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

A former client came in to see me the other day. He was just hurt in a car accident where another car made a left turn in front of him, and he wanted me to represent him and also his family and loved ones that were passengers in his car. I had to tell him that while I would be happy to represent him, his passengers would need to hire a different attorney. He was a little unhappy with me, so I had to explain to him about conflicts of interest.

Attorneys are supposed to represent their clients competently and diligently and to the utmost of their abilities. Attorneys are not allowed to accept employment where their loyalties may be divided.

Conflicts of interest can arise in many different situations.

New York Lawyer Disciplinary Rule 5-101(a) states:

A lawyer shall not accept or continue employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests, unless a disinterested lawyer would believe that the representation of the client will not be adversely affected thereby and the client consents to the representation after full disclosure of the implications of the lawyer's interest.

This means, "Don’t go into business with your client." Many lawyers have gotten into ethical trouble for entering into business relationships or partnerships with people they represent, and then fighting with them. This rule can also mean that a lawyer shouldn’t take piece of a client’s business instead of a cash fee, if it might affect his or her professional judgment.

New York Lawyer Disciplinary Rule 5-105(a) states:

A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests....

Disciplinary Rule 5-101 prohibits conflicts between the interests of a lawyer and the interests of a client. DR 5-105 prohibits a lawyer from representing more than one client if their interests conflict. This means "Don’t be greedy," accept one client only, or accept only those clients who have like legal interests.

For example, one lawyer can’t represent both a buyer and a seller in a real estate deal – such as the sale/purchase of a house. This may seem obvious but believe me, it’s been tried.

Also, lawyers can’t represent opposing parties in a lawsuit. For example, a lawyer can’t represent both the party suing (the plaintiff) and the party being sued (the defendant).

The danger in the above examples in not so much that the lawyer might seek two fees, but that one client might benefit through the use of confidential information obtained from the other.

In addition to the possible misuse of confidential information, DR 5-105 seeks to avoid the possibility that a lawyer with two clients with differing or adverse interests might not fight as hard as he or she could for one against the other.

Can one client consent to an attorney representing another client with an adverse interest? The answer is, "sometimes." To circle back to my original problem – the former client who wanted me to represent him and his passengers – it would have been unwise for me to try to represent both driver and passengers. The reason being: if my former client (a driver) was found even just 1% at fault for causing the accident, that would deprive his passengers of a pocket to reach their hands into. Put differently, they might get less money with only one car driver to sue, rather than two.

A court has held: A law firm's representation of both infant passenger and his mother as plaintiffs in personal injury action arising from a collision created a conflict of interest that required the firm's disqualification, although the passenger did not assert a claim against his mother; the passenger's failure to assert a claim against his mother, who was driving at time of collision, did not resolve the issue of her negligence, so as to eliminate potentially differing interests of co-plaintiffs. Shaikh ex rel. Shaikh v. Waiters, 2000, 185 Misc.2d 52.

Finally, and in case you were wondering, while not exactly a "conflict of interest," a lawyer cannot have sexual relations with a client unless a consensual relationship already existed between them before the attorney-client relationship commenced.

New York Regulation Section 1200.29-a states:

(b) A lawyer shall not:

(1) require or demand sexual relations with a client or third party incident to or as a condition of any professional representation;

(2) employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or

(3) in domestic relations matters [such as a divorce], enter into sexual relations with a client during the course of the lawyer's representation of the client.

Believe me, we wouldn’t need the rule if these things didn’t happen.

From:  New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

To remove the mystery about a deposition: it is a question and answer session which takes place under oath, with a stenographic reporter present to take down all that is said. A deposition may also be tape recorded or videotaped. It is sometimes also called an "examination before trial." Neither a judge or a jury will be present. This is not a trial. The purpose of a deposition is to allow the other side to learn about your case. However, a deposition should be taken seriously, as your deposition testimony will be recorded and may be used against you at trial.

The attorney representing you will meet with you before the deposition and explain to you the types of questions to expect. This preparation period will last as long as necessary to prepare you for the examination, but please be prompt for your appointment. We will also answer your questions at that time and help you feel more comfortable.

During the deposition, you will be questioned by the attorney for the defendant. If there are more than one defendant, you will also be questioned by their attorneys. At that time, your attorney will be there at your side to object to improper questions and protect your interests. Then your attorney will question the defendant and co-defendants, if any. All parties will be questioned about the who, what, when, where, why and how the accident occurred. You will also be questioned about the nature and extent of the injuries you’re claiming, and the type and duration of any medical treatment.

During the course of the deposition, your attorney may object to a question asked of you. In that case, you should not answer the question unless and until your attorney tells you that you may do so.

You may also be asked to look at documents, such as accident reports or forms signed by you, or even photographs of the accident scene or property damage. Just remember that you attorney is there to protect you, and if there is something that you do not understand, you should say so. Also, if English is not your first language and you are more comfortable answering questions in another language, you should let your attorney’s office know in advance of the deposition, so that arrangements can be made for an interpreter to be present.

Because the other side is trying to get information from you, your job is to answer each question simply and truthfully, but not to be too helpful. Do not volunteer any information or explain anything unless you are asked to explain. Don’t guess. Don’t be afraid to answer, "I don’t know." On the other hand, if you say "I don’t know" too often, you may seem untruthful. So if you can give some kin=d of answer – say a range of time, or distance, or speed, try to answer as best as you can. Just don’t take wild guesses.

At deposition is not your time to tell your story; that day is at trial, if your case goes that far without settling. Also know that the other side is looking you over to try to predict what kind of trial witness you would make. Do you appear truthful? Sympathetic? Will a jury love you or hate you?

Your answers will be typed into a booklet and you will later be asked to sign it and have it notarized, indicating that you agree those answers are what you previously said, and that they are true. Y0u will return the booklet to your attorney’s office

If that booklet, or as it is called, transcript, does not accurately reflect what you said, changes can be made. Instructions concerning how you make changes and where you are to sign will accompany the transcript. Once signed, however, your testimony is almost "written in stone," and cannot be changed at a later date without causing a situation that may not help your case.

To refresh your memory, you should try to visit the place where the accident occurred before your deposition.

Any unanswered questions will be discussed when your attorney meets with you prior to the deposition. Naturally, you can also call your attorney’s office at any time beforehand.

From:  New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

 

 

Independent medical examination (IME) is a fancy term for being examined by a doctor when you are involved in some kind of claim or lawsuit where your physical or mental condition or an injury is in dispute. You may be required submit to an IME when you are pursuing a:

Personal injury lawsuit (as plaintiff);

New York No-Fault insurance claim (from a motor vehicle accident);

Worker’s Compensation claim; or,

Disability insurance benefits claim.

There are several things you should know about the IME.  The "other side" – usually an insurance company – selects the doctor. Usually, the doctor has a medical specialty in the area where the hurt person is claiming injury. So a claim for a fractured arm or leg should mean you see an orthopedist; an eye injury, an opthalmologist; broken teeth, a dentist; and so on. You may be asked to undergo more than one IME visit, by doctors with different specialties. After you are examined the IME doctor will write a report that will be sent to the insurance company or law firm that hired him or her. Usually a copy is then sent to your attorney.

IMEs are not really "independent." The doctor examining you is paid by the insurance company and he or she knows that a continued flow of insurance company business depends on making findings and writing reports that minimize your claim – for the greater good and benefit of the company paying the bill. This can lead to outrages like reports indicating extra tests with negative results that were never even performed in the office or the patient complaining about aches and pains or limitations/restrictions and the IME doctor agreeing with that person but then writing a report that omits that information. The IME report may even read like it was someone else with different injuries who was examined.

Remember, an IME doctor is not trying to help the injured accident victim get better or cured. An IME doctor is hired to punch holes in a claimant’s or plaintiff’s case.

What to expect and how to behave at an IME examination.

Arrive a little early. You may be asked to fill out a medical history form.

Don’t be hostile to the IME doctor; be cooperative. The doctor will ask questions about the accident. Keep your answers short and sweet. You should bring a pad and pen and note how long the exam takes and what tests are performed on you. Make this information available to your attorney afterwards.

You may want to bring notes with you to the IME with a list of symptoms – what hurts you and when and your physical or mental limitations, what medical tests you have had with positive results, and what medications you’re taking and why.

During the IME, tell the doctor if it hurts. If something doesn’t hurt, don’t lie. The doctor will usually know and you may damage your case or claim.

You do not have to submit to invasive tests such as x-rays or take any injections.

Watch for tricks. The doctor may drop something to see if you can bend down and pick it up. Also, you will be observed getting on and off the examination table. You may be subject to videotape surveillance by the insurance company – so if you walk into the IME using a cane or crutch, make darn certain that you’re using the cane or crutch when you leave.

In case you’re curious. IME examinations under No-Fault or disability insurance come from your actual insurance policy which always provides that you have to cooperate with the insurance company in its investigation of your claim.

In a personal injury or accident lawsuit, the injured plaintiff always puts his or her medical condition into issue by seeking damages. The defense is entitled to have an IME to enable it to defend against the plaintiff’s claim of injury. This right is set forth in New York’s statutory (written) law at Civil Practice Law and Rules Section 3121(a), which states:

Notice of examination. After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control.

This right is also found in New York’s Court Rules, 22 NYCRR 202.17(a), which states:

At any time after joinder of issue and service of a bill of particulars, the party to be examined or any other party may serve on all other parties a notice fixing the time and place of examination.

If you have specific questions, be sure to check with your attorney.

From:  New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

A 90 year-old Suffolk County woman was taking garbage out to bins near her apartment complex parking lot when she was struck and killed by a Mitsubishi Eclipse that was backing up.

At about 7:30 Friday evening Bay Shore resident Nancy Estergomy was knocked to the ground by the car, driven by Vidal Katwaroo, 20, also of Bay Shore. He was issued a summons for aggravated unlicensed operation of a motor vehicle. It is unknown why he was driving without a license.

Estergomy was taken to Southside Hospital where she died from her injuries, which included severe head trauma.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

Minghui Yu, a native of China and a PhD student at Columbia University, was hit by a car while trying to escape two muggers at around 9:00 P.M. Friday night.

Two men accosted Yu at Broadway and 122nd Street. He fled onto the street and was struck by an SUV traveling south on Broadway. Yu was taken from the accident scene with a critical head injury, and died from his injuries at St. Luke's Hospital.

Police are looking for the muggers, who fled the scene.

The SUV’s driver remained at the scene and is not expected to face any charges.

Commentary: Apparently, Columbia University captured the mugging and accident on video tape. We’ll see if the hoodlums are caught.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)

Queens District Attorney Richard A. Brown announced today that a physician employed at a Forest Hills medical clinic has been charged with insurance fraud for allegedly falsely billing insurance carriers under New York’s no-fault law for costly medical tests never provided to motor vehicle accident victims – even to hurt or injured patients.

The District Attorney identified the defendant as German Laufer, 61, of 22 Knutsen Drive in West Orange, N.J., who practices at medical clinics located at 101-20 Queens Boulevard, in Forest Hills; 197-27 Hillside Avenue, in Hollis; and 139-81 35 Avenue, in Flushing. The defendant also has a business known as Milan Medical located at 401 76^th Street, Suite H1, in Brooklyn. The defendant was released without bail following his arraignment today in Queens Criminal Court on two counts of fourth-degree grand larceny, nine counts of fourth-degree insurance fraud, nine counts of first-degree falsifying business records and seven counts of fourth-degree attempted grand larceny. The defendant faces up to 4 years in prison if convicted and the loss of his medical license. He was ordered to return to court on May 9, 2008.

District Attorney Brown said that, according to the criminal court complaint, between June 2003 and June 2006, the defendant submitted insurance claims for costly nerve conduction studies and needle electromyographs ("NCV/EMGs") that, in fact, were not performed on nine individuals. An NCV tests the flow of electrical currents across the nerves, and an EMG is a recording of the electrical activity in muscles and nerves. The defendant is alleged to have caused fraudulent claims for these unrendered and unnecessary medical tests to be submitted to three no-fault insurance companies in an amount totaling more than $15,000.

Commentary:  Insurance fraud is an ongoing problem and casts aspersions on innocent accident victims. No-Fault fraud makes it harder for legitimately injured accident victims to get the care they need. I most recently wrote about his problem on February 12^th, in a blog piece about doctors, a dentist, and psychologist sentenced to jail for No-Fault insurance fraud. For more information about dishonest doctors (and lawyers) see my FREE book: Good Lawyers Don’t Call You First.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)