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

Bicycle crashes can lead to harmful injuries such as traumatic brain damage, back and neck injuries, bone fractures, paralysis of different parts of the body, and even death. Depending on the circumstances, an accident can lead to brain injuries, broken arms and/or legs, and other serious injuries. A brain injury occurs when the brain is injured by any external force.

Structural injury to brain tissue is easily suffered if the bicycle rider does not wear a bicycle helmet. Upon impact to the head, a child's brain bounces around inside the skull, and can bleed from the brain, from damaged brain tissue. A well-fitted helmet worn properly can protect a child from suffering a skull fracture, or brain injury, bleeding, or swelling. The bleeding -- also known as hemorrhaging -- can fill the brain cavity rather quickly, squeezing the brain, and leading to brain injury. This is sometimes also known as a subdural hematoma.

In bicycle accident cases, back injury, traumatic brain injury, or death can occur. A qualified New York City brain injury lawyer frequently represents accident victims who suffer from brain or head trauma. One type of serious brain injury is traumatic brain injury, also known as TBI.

Bicycle riders who have had a brain injury are more vulnerable to later brain injury. Our New York City, Queens and Brooklyn brain injury attorneys have vast experience in brain injury medicine and lawsuits. Not all attorneys have specialized knowledge, training, and experience dealing with TBI or brain injury from bicycle accidents and the consequences of TBI.

Helmets work by bringing the head (and brain) to a relatively gradual stop upon impact. When an unprotected rider strikes her head against an unforgiving or solid surface, the forces exerted cause the brain to move forward against the skull - this can cause brain bruising and, as noted above, internal bleeding. Helmets soften the shock by soaking up the force of the impact.

The helmet's body, composed of melted plastic-like material, is compressed when struck by the force of an outside blow. The helmet's outer shell may even crack yet still remain intact.

Helmets don't work if they can slide back on the wearer's head or come loose upon impact, so great care should be given to making certain that the helmet that fits the rider's head - especially at the back of the skull. As children grow, their helmets needs to be replaced by a larger size helmet to offer adequate protection.

Finally, it is important to stop using and replace any bicycle helmet that has suffered an impact from an accident. Please do this even if the helmet's outer shell appears to be unbroken.

PREVENT INJURY IN AN ACCIDENT: GROWN-UP CYCLISTS NEED HELMETS, TOO

BROOKLYN BICYCLE ACCIDENT LAWYER'S TOP TEN THINGS THAT GO THROUGH YOUR MIND AS YOU HAVE A BICYCLE ACCIDENT

FATAL BROOKLYN ACCIDENT-BICYCLE KNOCKDOWN

BRONX COUNTY COMMUNITIES 　

Serving Bronx neighborhoods of: Baychester, Bedford Park, Belmont, Castle Hill, City Island, Clason Point, Country Club, Eastchester, Edgewater Park, Fieldston, Fordham, Hart Island, High Bridge, Hunts Point, Kings Bridge, Longwood, Melrose, Morris Park, Morrisania, Mott Haven, Mount Eden, Mount Hope, Norwood, Olinville, Parkchester, Pelham Bay, Port Morris, Rikers Island, Riverdale, Schuylerville, Soundview, Spuyten Duyvil, Throgs Neck, Unionport, University Heights, Van Nest, Wakefield, West Farms, Westchester, Westchester Square, Williamsbridge and Woodlawn.

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

 Police say a driver lost control over his automobile while on an exit ramp on Shore Parkway in Brooklyn, New York, and slammed right into a utility pole on Sunday February 27, 2011. Witnesses say the motorist was traveling at high velocity. They claim an as yet unnamed 19-year-old male was operating the car at a high rate of speed when he lost control on the departure ramp at Knapp Street right before 1:30 a.m. Investigators say the vehicle rammed into a power pole.

The crash killed one of the passengers and injured two others together with the operator. The front passenger was delivered to the hospital where he was declared dead from his injuries. The driver and the two women occupying the back seat of the car were hospitalized in stable condition.

The driver and three other accident victims had to be pulled out.

The others were listed in stable condition.

No mention (yet) of possible criminality.

RELATED POSTS:

QUEENS DRIVER SUES NEW YORK CITY OVER CAR ACCIDENT ON BROOKLYN'S KOSCIUSKO BRIDGE

Serving Brooklyn neighborhoods of: Bath Beach, Bay Ridge, Bedford-Stuyvesant, Bensonhurst, Bergen Beach, Boerum Hill, Borough Park, Brighton Beach, Broadway Junction, Brooklyn Heights, Brownsville, Bushwick, Canarsie, Carroll Gardens, City Line, Clinton Hill, Cobble Hill, Coney Island, Crown Heights, Cypress Hills, Ditmas Park, Downtown Brooklyn, DUMBO, Dyker Heights, East Flatbush, East New York, Flatbush, Flatlands, Fort Greene, Fort Hamilton, Fulton Ferry, Georgetown, Gerritsen Beach, Gowanus, Gravesend, Greenpoint, Highland Park, Homecrest, Kensington, Manhattan Beach, Marine Park, Midwood, Mill Basin, New Lots, Ocean Hill, Ocean Parkway, Paerdegat Basin, Park Slope, Plum Beach, Prospect Heights, Prospect Lefferts Gardens, Prospect Park South, Red Hook, Remsen Village, Rugby, Sea Gate, Sheepshead Bay, Spring Creek, Sunset Park, Vinegar Hill, Williamsburg, Windsor Terrace and Wingate.

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

A motorcyclist was clinging to life yesterday (February 24, 2011) after he was pinned under a bus in a chain-reaction Lincoln Tunnel crash that caused morning commuter chaos. A serious accident involving a motorcycle and three buses has shut done the center tube of the Lincoln Tunnel, causing major traffic delays. The accident happened about a quarter-mile from the Manhattan side of the center tube. Dozens of people were injured in the crash, which happened at around 7:30 a.m. The motorcyclist was taken to Bellevue Hospital in critical condition. According to the New York City Fire Department, 28 others were also transported to area hospitals. NY1 spoke with one passenger of a New Jersey Transit bus who was stuck in the tunnel for four hours. Cars and buses were backed out of the tunnel and allowed through another tube just before noon. crash, which also injured 52 people on three buses headed to Manhattan from New Jersey. "I was on the bus resting my eyes, and the next thing I knew was that my head hit the seat in front of me," said James Riley of Old Bridge, NJ -- whose bus was behind the bus that hit the motorcycle. "We hit the bus in front of us and we pushed it forward," explained Riley, who was treated at Roosevelt Hospital. Traffic wasn't back to normal until early afternoon, the Port Authority said. The crash remains under investigation.

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

From time-to-time I get called by people whose pharmacist put the wrong pill in the bottle where the label says the name of the correct medication. Sometimes, they're given the wrong medication entirely. I'm happy to report that in most of these cases there are no permanent ill effects, and I politely decline to handle the matter. But consumers hsould still be aware of the potentially deadly possibility of pharmacist error.

Each year, over 3 billion prescriptions are dispensed in the United States. Patients depend on these medications for their well-being, and it is important that the dispensing pharmacy accurately fills each prescription with the correct drug and dosage. However, pharmacists and pharmacy technicians are under enormous pressure to keep costs low by filling high volumes of prescriptions quickly.

All of this adds up to a shockingly high risk for injury due to pharmacy error. A recent investigation into prescription error identified several potential pitfalls:

These are just four possible types of pharmacy error. While some errors may not result in any harm to the patient, those that do injure the patient present a very serious safety concern. According to some studies, perhaps as many as one in ten prescriptions results in a significant adverse outcome. What causes these potentially fatal errors, and what can you do to protect yourself and your family?

PHARMACY ERROR CAN HAPPEN ANYWHERE --EVEN AT THE HOSPITAL

Pharmacy error in both the local neighborhood stores and the hospital setting is on the rise. The consequences of pharmacy errors can range from harmless to fatal. More than 100,000 Americans die each year of adverse drug reactions, according to an article in the Journal of The American Medical Association. No one knows for sure how many of those deaths are the direct result of a pharmacy's or pharmacist's negligence, but we do know that a leading cause for prescription mistake is overworked pharmacists.

Many pharmacies fill over 300 prescriptions a day and some pharmacists are being asked to fill thirty prescriptions an hour and work twelve hour shifts, sometimes back to back. This means that within two minutes, the pharmacist must fill the prescription, check for drug interactions, check for contraindications for use and also counsel the patient. It's no wonder mistakes are being made.

In one study, fifty pharmacies in six cities throughout the United States were evaluated on their dispensing accuracy rate. The study found an overall accuracy rate of 98.3%. That's equivalent to 77 errors per 4,481 prescriptions filled. The authors of the study concluded that prescription dispensing mistakes occur at a rate of four errors per day in a pharmacy filling 250 prescriptions a day. If you do the math - with over 3 billion prescriptions being filled annually - there are over 50 million prescription errors per year in the United States.

CHILDREN FACE UNIQUE DANGERS

According to a recent University of London School of Pharmacy study, hospital doctors make mistakes in more than one in ten prescriptions written for children. Specifically, the researchers analyzed five London hospital pediatric wards over a two-week period and found errors in 13.2% of prescriptions written for children. Furthermore, when nurses were responsible for administering drugs, the researchers found that one in five drugs were incorrectly administered.

Luckily, pharmacists prevented most of the errors from causing harm by crosschecking the prescriptions. However, some of the incorrect prescriptions did get through and some young patients experienced complications. While most of these complications were not lethal, one child was prescribed medication for epilepsy that was ten times the correct dosage. Fortunately, the child received only one dose of the potent medication before the pharmacist caught the error and corrected the treatment.

Overall, the results of the study found 391 prescription errors with incomplete prescriptions being the most common mistake, followed by dosing errors.

A couple of high-profile incidents have underscored the threat to children. Recently, two of fourteen babies died after getting heparin overdoses. Unlike the case involving actor Dennis Quaid's twins, those Texas newborns got the overdose as a result of an error at the hospital pharmacy rather than a labeling problem. The heparin dose turned out to be one hundred times stronger than was recommended.

Medicine mix-ups, accidental overdoses, and bad drug reactions adversely affect one out of fifteen hospitalized children. That means as many as 540,000 children are harmed every year,

according to another recently released study.

The researchers cite several reasons for the high number of errors in prescriptions for children, including the following:

*Many drugs used in hospitals have never been tested on children and are not in standard doses meant for children. Doctors should make dosage determinations based on a child's weight.

*The high number of drug administering errors is attributable to the fact that children are often given injections instead of tablets. According to the researchers, injections require mixing up a solution to be injected. However, this is a time-consuming process.

HOW CAN I PROTECT MYSELF?

By taking an active role in your health care and asking questions of your doctor and pharmacist, you may be able to avoid becoming a victim of pharmacy error. Here are some tips to help you keep yourself - and your family - safe:

*Don't be in a hurry

*Open your prescription in the pharmacy

*Ask questions - by law, pharmacists are required to provide counseling on all prescriptions they dispense

*Don't assume everything is all right

*Be your own advocate or have someone you trust assist you

*Slow down, compare and take advantage of helpful resources such as the internet.

*Pharmacy error is alarmingly common. Being patient and inquisitive can save your life.

If you do the math - with over 3 billion prescriptions being filled annually - there are over 50 million prescription errors per year in the United States.

Serving Queens neighborhoods of: Arverne, Astoria, Auburndale, Bayside, Beechhurst, Bellaire, Belle Harbor, Bellerose, Blissville, Breezy Point, Briarwood, Broad Channel, Cambria Heights, College Point, Corona, Douglaston, East Elmhurst, Edgemere, Elmhurst, Far Rockaway, Flushing, Forest Hills, Fresh Meadows, Fresh Pond, Glen Oaks, Glendale, Hillcrest, Hollis, Holliswood, Howard Beach, Hunters Point, Jackson Heights, Jamaica, Jamaica Estates, Jamaica Hills, Kew Gardens, Laurelton, Lefrak City, Linden Hill, Lindenwood, Little Neck, Long Island City, Malba, Maspeth, Middle Village, Murray Hill, Neponsit, Oakland Gardens, Ozone Park, Pomonok, Queens Village, Queensboro Hill, Rego Park, Richmond Hill, Ridgewood, Rockaway Park, Rockaway Point, Rosedale, Saint Albans, Seaside, South Jamaica, South Ozone Park, Springfield Gardens, Steinway, Sunnyside, Utopia, Wave Crest, Whitestone, Woodhaven and Woodside.

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

Did you know that according to a study by SAFE KIDS and FedEx Express, nearly 50 percent of
the vehicles studied in residential areas and school zones committed stop sign violations? If you
are a parent, this discovery is disturbing.

Two hundred and eighty eight intersections were involved in the study. In the course of the study, researchers would observe the intersection for 30 minutes to observe driving behavior. They recorded such information as the vehicle type, stopping behavior, presence of pedestrians and if
there were pedestrians in the crosswalk or waiting to cross.

According to researchers, 37 percent of motorists made some type of stop sign violation. This
percentage didn't change much when kids were around. Researchers found that 32 percent of
drivers still committed these violations when kids were present. However, they did find that
when pedestrians were crossing the street, more drivers stopped.

It is believed that stop sign violations account for nearly 200 fatal accidents and 17,000 injury
accidents every year in the United States. Children are often the victims of these types of
accidents, as they tend to lack the cognitive, developmental and behavioral abilities to perceive and avoid traffic dangers.

A child's body is no match for a heavy, moving automobile or bus. Cars striking chikld pedestrians can cause serious personal injury or even death.

If your child has been hurt in a New York City, Brooklyn, Queens, Bronx or Staten Island car accident, you may be able to hold the driver accountable.

RELATED POSTS:

Mother and child struck by car while walking to school

Mother struck while walking after she dropped off child at school

 

KINGS COUNTY COMMUNITIES

Serving Brooklyn neighborhoods of: Bath Beach, Bay Ridge, Bedford-Stuyvesant, Bensonhurst, Bergen Beach, Boerum Hill, Borough Park, Brighton Beach, Broadway Junction, Brooklyn Heights, Brownsville, Bushwick, Canarsie, Carroll Gardens, City Line, Clinton Hill, Cobble Hill, Coney Island, Crown Heights, Cypress Hills, Ditmas Park, Downtown Brooklyn, DUMBO, Dyker Heights, East Flatbush, East New York, Flatbush, Flatlands, Fort Greene, Fort Hamilton, Fulton Ferry, Georgetown, Gerritsen Beach, Gowanus, Gravesend, Greenpoint, Highland Park, Homecrest, Kensington, Manhattan Beach, Marine Park, Midwood, Mill Basin, New Lots, Ocean Hill, Ocean Parkway, Paerdegat Basin, Park Slope, Plum Beach, Prospect Heights, Prospect Lefferts Gardens, Prospect Park South, Red Hook, Remsen Village, Rugby, Sea Gate, Sheepshead Bay, Spring Creek, Sunset Park, Vinegar Hill, Williamsburg, Windsor Terrace and Wingate.

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

Today's post has nothing to do with personal injury or car accidents, bus accidents, motorcycle accidents, taxi or cab accidents, bicycle accidents, medical malpractice claims, construction accidents or what have you.

COMMENT: Anyone who has every watched a television crime shows knows about search warrants. No warrant, no kicking down the suspect's door. Invalid or incorrect or falsely-obtained warrant, and the judge will set the suspect free. That's how it is even if it's sometimes tough luck for that episode's crime victim.

The Fourth Amendment of the U.S. Constitution prohibits "unreasonable searches and seizures." This is why judges have to issue search warrants. And this protection against the government goes back to Colonial times, when even before the United States came in to existence, New World settlers resented the British Crown's broad use of searches to try to catch smugglers.

However, searches without warrants are permitted where the accused doesn't have an "expectation of privacy." Such as if you throw incriminating evidence into a curbside garbage pail for pick up.

So is it reasonable for authorities to take a border crosser's computer and pick through the hard drive? Is it reasonable to go through the text messages on your cell phone? Or check both devices to see what web sites you've visited? Does a law abiding traveler and/or citizen have an expectation of privacy while crossing the U.S. border?

Customs and Immigration Service officers can search border crossers. If you're on their "list." Or if they get suspicious in any of numerous ways that we don't even know. Except for obvious law-breaking, such as finding child pornography on a computer, should digital information be searchable on what seems like a whim? It seems to me we're getting dangerously close to prosecuting "thought crimes," where we criminalize people based on what they think.

I guess travelers wanting to protect business trade secrets or sensitive client information will have to smuggle in flash drives by hiding them on their bodies, while wiping clean their computer hard drives. Is smuggling a flash drive illegal? If not, will it be illegal some day soon?

The following article is from the New York Times.

If you stand with the Customs and Border Protection officers who staff the passport booths at Dulles airport near the nation's capital, their task seems daunting. As a huge crowd of weary travelers shuffle along in serpentine lines, inspectors make quick decisions by asking a few questions (often across language barriers) and watching computer displays that don't go much beyond name, date of birth and codes for a previous customs problem or an outstanding arrest warrant.

The officers are supposed to pick out the possible smugglers, terrorists or child pornographers and send them to secondary screening.

The chosen few -- 6.1 million of the 293 million who entered the United States in the year ending Sept. 30, 2010 -- get a big letter written on their declaration forms: A for an agriculture check on foodstuffs, B for an immigration issue, and C for a luggage inspection. Into the computer the passport officers type the reasons for the selection, a heads-up to their colleagues in the back room, where more thorough databases are accessible.

And there is where concerns have developed about invasions of privacy, for the most complete records on the travelers may be the ones they are carrying: their laptop computers full of professional and personal e-mail messages, photographs, diaries, legal documents, tax returns, browsing histories and other windows into their lives far beyond anything that could be, or would be, stuffed into a suitcase for a trip abroad. Those revealing digital portraits can be immensely useful to inspectors, who now hunt for criminal activity and security threats by searching and copying people's hard drives, cellphones and other electronic devices, which are sometimes held for weeks of analysis.

Digital inspections raise constitutional questions about how robust the Fourth Amendment's guarantee "against unreasonable searches and seizures" should be on the border, especially in a time of terrorism. A total of 6,671 travelers, 2,995 of them American citizens, had electronic gear searched from Oct. 1, 2008, through June 2, 2010, just a tiny percentage of arrivals.

"But the government's obligation is to obey the Constitution all the time," said Catherine Crump, a lawyer for the American Civil Liberties Union. "Moreover, controversial government programs often start small and then grow," after which "the government argues that it is merely carrying out the same policies it has been carrying out for years."

One of the regular targets is Pascal Abidor, a Brooklyn-born student getting his Ph.D. in Islamic studies, who reported being frisked, handcuffed, taken off a train from Montreal and locked for several hours in a cell last May, apparently because his computer contained research material in Arabic and news photographs of Hezbollah and Hamas rallies. He said he was questioned about his political and religious views, and his laptop was held for 11 days.

Another is James Yee, a former Muslim chaplain at the Guantánamo Bay prison, who gets what he wryly calls a "V.I.P. escort" whenever he flies into the United States. In 2003, Mr. Yee was jailed and then exonerated by the Army after he had conveyed prisoners' complaints about abuse, urged respect for their religious practices and reported obscene anti-Muslim caricatures being e-mailed among security staff.

Years later, he evidently remains on a "lookout" list. A federal agent stands at the door of Mr. Yee's incoming plane, then escorts him to the front of the passport line and to secondary screening.

Arriving in Los Angeles last May from speaking engagements in Malaysia, he was thoroughly questioned and searched, he said, and his laptop was taken for three or four hours. He was not told why, but after it was returned and he was waiting to rebook a connecting flight he'd missed, a customs officer rushed up to the counter. "We left our disk inside your computer," he quoted her as saying. "I said, 'It's mine now.' She said no, and sure enough when I took the computer out, there was a disk."

Customs won't comment on specific cases. "The privacy rights that citizens have really supersede the government's ability to go into any depth," said Kelly Ivahnenko, a spokeswoman.

In general, "we're looking for anyone who might be violating a U.S. law and is posing a threat to the country," she explained. "We're in the business of risk mitigation."

Yet the mitigation itself has created a sense of risk among certain travelers, including lawyers who need to protect attorney-client privilege, business people with proprietary information, researchers who promise their subjects anonymity and photojournalists who may pledge to blur a face to conceal an identity. Some are now taking precautions to minimize data on computers they take overseas.

"I just had to do this myself when I traveled internationally," said Ms. Crump, the lead attorney in a lawsuit challenging the policy on behalf of Mr. Abidor, the National Association of Criminal Defense Lawyers and the National Press Photographers Association.

During a week in Paris, where she lectured on communications privacy, she had legal work to do for clients, which she could not risk the government seeing as she returned. "It's a pain to get a new computer," she said, "wipe it completely clean, travel through the border, put the new data on, wipe it completely clean again."

In simpler days, as customs merely looked for drugs, ivory, undeclared diamonds and other contraband that could be held in an inspector's hand, searches had clear boundaries and unambiguous results.

Either the traveler had banned items, or didn't. Digital information is different. Some is clearly illegal, some only hints at criminal intent, and under existing law, all is vulnerable to the same inspection as hand-carried material on paper.

Most pirated intellectual property and child pornography, for example, cannot be uncovered without fishing around in hard drives. "We've seen a raft of people coming from Southeast Asia with kiddie porn," said Christopher Downing, a supervisor at Dulles. If a person has been gone only two or three days and pictures of children are spotted in a bag, he explained, the laptop is a logical candidate for inspection. Such searches have been fruitful, judging by the bureau's spreadsheets, which list numerous child pornography cases.

But terrorism is an amalgam of violence and ideas, so its potential is harder to define as officers scrutinize words and images as indicators of attitudes, affiliations and aspirations. Random searches are not done, Mr. Downing said, although courts so far have upheld computer inspections without any suspicion of wrongdoing. In practice, something needs to spark an officer's interest. "If you open up a suitcase and see a picture of somebody holding an RPG," he noted, referring to a rocket-propelled grenade, "you'd want to look into that a little more."

The search power is preserved by its judicious use, Mr. Downing said. "If you abuse it, you lose it." he added. The A.C.L.U. doesn't want customs to lose it, Ms. Crump explained, but just wants the courts to require reasonable suspicion, as the Supreme Court did in 1985 for examinations of a person's "alimentary canal." The court distinguished such intrusive inspection from "routine searches" on the border, which "are not subject to any requirement of reasonable suspicion, probable cause, or warrant." The justices added in a footnote that they were not deciding "what level of suspicion, if any, is required for nonroutine border searches" of other kinds.

Laptop searches should be considered "nonroutine," Ms. Crump argues, something the United States Court of Appeals for the Ninth Circuit declined to do in 2008, when it reversed a judge's decision to suppress evidence of child pornography obtained during a suspicionless airport computer search.

With the search powers intact, Mr. Abidor no longer dares take the train home from his studies at McGill University in Montreal. He doesn't want to be stranded at the border, waiting hours for a bus, as he was in May. So last month his father drove up from New York to get him for vacation. The men were ordered to a room and told to keep their hands on a table while customs officers spent 45 minutes searching the car, and possibly the laptop, Mr. Abidor said. "I was told to expect this every time."

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

A dissatisfied plaintiff who bombarded his ex-lawyer with abusive legal papers has been barred from ever suing the attorney again, according to a recent decision.

After Donald Schechter asked to be relieved from representing Alexander Breytman in a 2003 landlord-tenant flap, Breytman began filing legal process against the lawyer and sending him letters calling him an 'incompetent liar, pure a--hole and a cretin, according to decision published Thursday.

Breytman filed suit, seeking more than $20 million from Schechter, accusing him of anti-Jewish discrimination in the vein of "Gabble antiseptic rant against Jew in Germany," which Brooklyn Supreme Court Justice Arthur Schack interpreted as a reference to Hitler's minister of propaganda - Goebbels. And all of this notwithstanding that Schechter is Jewish.

Schack said "Breytman blames Schechter for his own shortcomings" and said Breytman should have heeded the admonition of Cassius to Brutus in Julius Caesar: "The fault, dear Brutus, is not in our stars, but in ourselves."

He barred Breytman from suing Schechter or his law firm in New York without the permission of the administrative judge of the county.

Supreme Court, Kings County, New York.

Alexander BREYTMAN, Plaintiff, v. Donald SCHECHTER and Donald Schechter, P.C., Defendants.

Feb. 8, 2011.

ARTHUR M. SCHACK, J.

This action for legal malpractice, breach of contract, fraud, intentional infliction of emotional distress and defamation stems from the representation by defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. (collectively "SCHECHTER") of pro se plaintiff ALEXANDER BREYTMAN (BREYTMAN) in actions for malicious prosecution and false arrest against the City of New York and plaintiff's former landlord.

Ultimately, plaintiff BREYTMAN, after disagreeing with SCHECHTER about case strategy and engaging in abusive conduct toward SCHECHTER, terminated his representation by SCHECHTER in late November 2006. Plaintiff continued the actions as a pro se litigant, but failed to prevail against the City of New York and the landlord. Despite terminating SCHECHTER, plaintiff BREYTMAN continued to harass SCHECHTER and blamed SCHECHTER for not prevailing against the City and the landlord. In this action, plaintiff continued to harass SCHECHTER by serving papers directly upon SCHECHTER, not SCHECHTER's counsel, in violation of procedure and my preliminary conference order.

In the instant action, defendants move for: summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212(a); and, enjoining plaintiff from initiating further litigation against defendants and from any further contact with defendants without prior court approval. Plaintiff cross-moves for a sanction of $10,000.00 against SCHECHTER, pursuant to 22 NYCRR § 130-1.1, "for being force against nonsensical motion for summery judgment that Donald Schechter is not entitled too and adding harassment to the complaint as sanction and order for protection from harassment and ordering Donald Schechter to pay $10,000.00 for being to defend against said motion [sic]." Plaintiff served the notice of cross-motion and supporting affidavit directly upon SCHECHTER, not upon SCHECHTER's counsel.

As will be explained, defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. are granted summary judgment and dismissal of the instant complaint. Plaintiff BREYTMAN is enjoined from commencing future litigation in the New York State Unified Court System against defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. without prior approval of the appropriate Administrative Justice or Judge. Defendant ALEXANDER BREYTMAN's cross-motion for sanctions against defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. is denied.

Background

BREYTMAN met with SCHECHTER in October 2003 regarding claims he sought to assert against the City of New York and his former landlord, the landlord of a Bronx apartment building, where he lived from about 1994 to January 2003. According to SCHECHTER, BREYTMAN told him that after the landlord purchased the building in 2001 or 2002, the landlord allegedly let the building fall into disrepair. Then, BREYTMAN formed a tenants' association and took the landlord to Housing Court to obtain repairs. BREYTMAN claimed, as a result of this, the landlord cut his telephone line, sent him harassing letters and falsely accused him of vandalizing the entrance door of the building by placing glue in the locks. Further, plaintiff alleged that he was arrested for vandalizing the locks. Then, after plaintiff made numerous court appearances in his criminal case, the Bronx County District Attorney's Office successfully moved to dismiss the criminal action because it could not meet its burden of proof. Moreover, plaintiff BREYTMAN told SCHECHTER that as a result of his arrest he suffered from stress and depression and then lost his job and apartment.

Plaintiff, on October 3, 2003, signed a retainer agreement for $7,500.00 with SCHECHTER [exhibit C of motion] for SCHECHTER's legal services in representing him in an action for malicious prosecution against the City of New York, the arresting detective and the landlord. SCHECHTER claims that he explained to BREYTMAN the difficult nature of the case and he never guaranteed plaintiff that he would win.

SCHECHTER had plaintiff sign authorizations for the release of plaintiff's medical records to support his claim and filed, on October 8, 2003, the notice of claim against the City of New York. Then, on November 25, 2003, SCHECHTER appeared with BREYTMAN at a General Municipal Law § 50-h hearing, where plaintiff testified about his claim and alleged injuries. Subsequently, defendants filed a complaint against the City of New York, the New York City Police Department and the arresting detective.

SCHECHTER also prepared and filed, on October 10, 2003, in Supreme Court, Bronx County, a complaint against the landlord and the building superintendent, who, according to plaintiff, falsely reported that BREYTMAN vandalized the building locks. All defendants were served. They answered, on December 2, 2003, asserting counterclaims that plaintiff left his apartment in a state of total disrepair when he moved out. SCHECHTER prepared and served a reply denying the counterclaims. The City of New York answered the complaint, on February 13, 2004. Then, the landlord prevailed on its motion to change venue to New York County. Following the change of venue, discovery took place in both actions and SCHECHTER prepared a bill of particulars, which was served on May 19, 2004, in response to a 38-item demand by the landlord.

SCHECHTER, in February 2004, referred plaintiff to a psychologist for an evaluation. He explained to BREYTMAN that he would need a psychologist to establish his current psychological status and determine a casual connection between plaintiff's arrest and prosecution and any psychological injuries he sustained. The psychologist examined him on three different dates and on May 3, 2004 issued a report. SCHECHTER advised plaintiff that the $1,500.00 fee for the expert psychologist's services would have to be paid by BREYTMAN, because the $7,500.00 retainer was for legal services, not experts' fees.

There were delays in having a preliminary conference. The preliminary conference in the landlord action was held on September 16, 2006. Shortly thereafter, SCHECHTER moved to consolidate the City action with the landlord action. The landlord cross-moved for summary judgment. SCHECHTER claims that at this time, in late 2006, his "relationship with plaintiff began to deteriorate. Plaintiff began engaging in abusive behavior and began undermining his claims ... by instituting separate lawsuits which I did not believe had any merit. Plaintiff disregarded my advice ... and proceeded to prosecute the [separate] actions pro se [¶ 24 of SCHECHTER's affidavit in support of motion]." SCHECHTER continued representing BREYTMAN, despite plaintiff's abusive and detrimental conduct, preparing opposition papers to the landlord's summary judgment motion and serving them on November 21, 2006.

SCHECHTER, on the next day, advised plaintiff BREYTMAN that he would seek to be relieved. Plaintiff responded with a rambling letter, dated November 31, 2006[sic], repeatedly accusing SCHECHTER of senility and incompetence, and then in larger print and boldface stating "YOU ARE FIRED" [exhibit D of motion]. Thereafter, on December 7, 2006, plaintiff BREYTMAN served SCHECHTER with a "Notice with Motion to Compel and Cease and Desist," in which he advised SCHECHTER that he would proceed pro se and requested the file and "privileged material" [exhibit E of motion]. Typical of Breytman's abusive behavior is a letter, dated January 2, 2007 [p. 148 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v. OLINVILLE REALTY LLC and WEINER REALTY ], from BREYTMAN to SCHECHTER, in which BREYTMAN called SCHECHTER, among other things, "incompetent habitual liar," "pure Asshole" and "cretin."

Justice Karen Smith of Supreme Court, New York County, on March 7, 2007, issued a decision and order [exhibit F of motion], in which she: consolidated the two actions; dismissed all malicious prosecution claims; and, permitted the false arrest claim to proceed against the landlord and the building superintendent. Justice Smith, in a separate order the same day, March 7, 2007, relieved SCHECHTER as counsel for plaintiff BREYTMAN. Subsequently, while plaintiff proceeded as a pro se litigant, the remaining false arrest claim against the non-city defendants was dismissed [exhibit 1 of cross-motion].

Despite being relieved as BREYTMAN's counsel, SCHECHTER's contact with BREYTMAN, as well as BREYTMAN's abusive conduct toward SCHECHTER, did not end. SCHECHTER had the entire file photocopied and available for plaintiff. Plaintiff wanted the original file, despite being informed by Justice Milton Tingling, to whom the case had been reassigned in Supreme Court, New York County, that he was only entitled to a copy of the file. SCHECHTER explained, in ¶ 30 of his affidavit in support of the motion, that "[w]hile I had offered to provide plaintiff with a copy of the file, I did not want to provide him with the original out of concern that he might alter the original documents. In proceedings before the court in the underlying actions, plaintiff submitted copies of my letters which left out words and sentences or were otherwise altered."

On December 5, 2008, long after SCHECHTER provided BREYTMAN with a copy of the file, BREYTMAN served SCHECHTER with a subpoena for the original file, in connection with another of his pro se actions against the landlord, ALEXANDER BREYTMAN v. OLINVILLE REALTY LLC and WEINER REALTY, Supreme Court, Kings County, Index No. 2423/06 [exhibit G of motion]. Then, SCHECHTER served an order to show cause [OSC], dated December 12, 2008, to quash the subpoena and for a protective order [exhibit H of motion]. In his affirmation in support of the OSC, SCHECHTER pointed out how BREYTMAN altered documents to place SCHECHTER in a bad light and spent $1,091.34 to have the entire file copied for BREYTMAN. Then, BREYTMAN, in a letter to SCHECHTER, dated December 29, 2008, told SCHECHTER that he had twenty days to deliver "my property" but "[y]ou had chosen death you got no one to blame but yourself I am given another 10 days more days to deliver my property after which you fund how unwise your obtuse decision is [sic] [p. 206 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v. OLINVILLE REALTY LLC and WEINER REALTY ]."

While this issue was pending before Justice Yvonne Lewis, BREYTMAN, in a February 18, 2008 letter to Justice Lewis [exhibit I of motion], admitted that he altered documents to redact privileged material. The same day, BREYTMAN sent a letter to SCHECHTER [exhibit J of motion] in which he told SCHECHTER "[a]s usually you are fat on your mouth short on your feet [sic]," "I will sue" and "show how incompetent you are." Justice Lewis, on February 25, 2009, granted SCHECHTER's OSC to quash the December 5, 2008 subpoena. Further, she ordered that BREYTMAN "shall not file the same or similar applications for relief without the prior written permission of the Court."

Justice Lewis, at the February 25, 2009 oral arguments on SCHECHTER's OSC, told plaintiff not to directly contact SCHECHTER. However, plaintiff BREYTMAN continued to directly contact SCHECHTER with motion papers [exhibit M of motion]. SCHECHTER's counsel sent a letter to BREYTMAN, dated June 18, 2010, advising him not to directly serve SCHECHTER [exhibit K of motion]. In the February 22, 2010 preliminary conference order in the instant action, signed by myself, plaintiff was ordered "to have no contact with defendant directly [exhibit L of motion]." However, plaintiff violated my order by subsequently sending an abusive letter [exhibit N of motion] to SCHECHTER, stating "[t]ake your [threats] and your family and shove up your ass you dick. I will only serve you. I suppose [being an] asshole runs in the family. I do not recognize your family, get used to it, you ASSHOLE DICKHEAD."

Despite being ordered by Justice Lewis, on February 25, 2009, to "not file the same or similar applications for relief without the prior written permission of the Court," plaintiff commenced the instant action, by filing the summons and his rambling, disjointed verified complaint on January 23, 2010, with eight causes of action, many of them duplicative. Plaintiff seeks, according to the verified complaint: the return of the $7,500.00 retainer; the return of the $1,500.00 psychologist's fee; $5,000,000.00 for breach of contract; $5,000,000.00 "for causing me paint and suffering [sic]"; $10,000,000.00 for punitive damages; and, the return of the original file and all copies of any material in the file.

Discussion

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. (See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v. Manlon Realty, 43 A.D.2d 968, 969 [2nd Dept 1974] ).

CPLR 3212(b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v. Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2d Dept 1990] ). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v. Associated Fur Mfrs., 46 N.Y.2d 1065 [1979]; Fotiatis v. Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010] ).

Defendants SCHECHTER met their CPLR Rule 3212(b) burden with a prima facie showing to the Court that as a matter of law plaintiff BREYTMAN's causes of action have no merit. Moreover, after viewing the evidence in support of SCHECHTER in the light most favorable to BREYTMAN there are no issues of material fact that would bar the Court from directing judgment in SCHECHTER's favor. Plaintiff BREYTMAN, in his opposition papers, fails to show that there are triable issues of fact. All eight causes of action are dismissed as a matter of law.

Plaintiff's eight causes of action are all variations on the same theme of legal malpractice. "The elements of a cause of action sounding in legal malpractice are that the defendant attorney breached a duty of care to the client and that the breach was a proximate cause of actual damages Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2d Dept 2005]; DeGregorio v. Bender, 4 AD3d 384 [2d Dept 2004]; Aversa v. Safian, 303 A.D.2d 700 [2d Dept 2003] )." ( DiGiacomo v. Levine, 76 AD3d 946 [2d Dept 2010] ). (See Rudolph v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Boone v. Bender, 74 AD3d 1111, 1112 [2d Dept 2010]; Maiolini v. McAdams & Fallon, P.C., 61 AD3d 644, 645 [2d Dept 2009]; Hamoudeh v. Mandel, 62 AD3d 948, 949 [2d Dept 2009] ). The Court, in Natale v. Samel & Assoc. (308 A.D.2d 568, 569 [2d Dept 2003] ), instructed:

To succeed in an action to recover damages for legal malpractice, a plaintiff must establish that (1) the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community, (2) the attorney's negligence was a proximate cause of the loss sustained, (3) the plaintiff incurred damages as a direct result of the attorney's actions, and (4) the plaintiff would have been successful if the attorney had exercised due care. (See Olaiya v. Golden, 45 AD3d 823, 823-824 [2d Dept 2007]; Mourtil v. Korman & Stein, P.C., 33 AD3d 898, 899 [2d Dept 2006]; Avery v. Sirlin, 26 AD3d 451 [2d Dept 2006] ).

Moreover, defendants supported their instant summary judgment motion with an affirmation from Steven B. Samuel, Esq., who has been qualified in New York Courts as an expert in legal malpractice actions. Mr. Samuel reviewed: plaintiff's complaint; SCHECHTER's affirmation in support of the motion; the file maintained by SCHECHTER in connection with his representation of plaintiff BREYTMAN in the underlying malicious prosecution and false arrest claims; and, recent cases with respect to the elements and proof required in an action for malicious prosecution and false arrest. Mr. Samuel noted that BREYTMAN's separate pro se lawsuits against the landlord for negligence and civil rights violations, against the advice of SCHECHTER, hurt the cases in which SCHECHTER represented BREYTMAN. He asserts that plaintiff's negligence claims against SCHECHTER "amounts to little more than a client's criticism of his attorney's strategy [¶ 32 of Samuel affirmation]" and "Mr. Schechter's selection of the theories under which to proceed was entirely appropriate under the circumstances [¶ 33 of Samuel affirmation]." In ¶ 35 of his affirmation, he states correctly that "it is well settled under New York law that an attorney cannot be held liable for discretion exercised during the course of a litigation. See Rosner v. Paley, 65 N.Y.2d 735 [1985]."

The Court, in Ideal Steel Supply Corp. v. Beil (55 AD3d 544, 546 [2d Dept 2008], quoted from Rosner v. Paley at 738, that "the selection of one among several reasonable courses of action does not constitute malpractice," when it affirmed the dismissal of a legal malpractice action based upon the choice of a claim to pursue by plaintiff's counsel, to the exclusion of other claims. Mr. Samuel concludes, in ¶ 42 of his affirmation, that "I can state with a reasonable degree of certainty that Mr. Schechter's representation of plaintiff comported with the standard of care of a reasonable prudent attorney, and there is no merit to plaintiff's claim of negligence against Mr. Schechter."

Since plaintiff BREYTMAN's claims are primarily for legal malpractice, he was required in opposing defendants' summary judgment motion to present "an expert affidavit delineating the appropriate standard of professional care and skill' that the defendants were required to adhere to under the circumstances." (Schadoff v. Russ, 278 A.D.2d 222, 223 [2d Dept 2000], citing Greene v. Payne Wood & Littlejohn, 197 A.D.2d 664, 666 [2d Dept 1993] ). Plaintiff's failure to present an expert affidavit requires the granting of defendants' motion for summary judgment and dismissal of plaintiff's legal malpractice claim. (See Natale v. Samel & Assoc. at 569; Schadoff at 223). Plaintiff's opposition papers are a rambling stream of consciousness, full of typographic and grammatical errors, misstatements of law and, at various points, almost incomprehensible. Thus, "plaintiff failed to meet [his] burden of demonstrating the existence of a factual issue requiring the trial of the action ... The plaintiff's opposing papers consisted almost entirely of conclusory statements or unsubstantiated allegations regarding legal malpractice and fraud, which do not constitute sufficient proof to defeat the motion for summary judgment." (Wilkerson v. Buonomo & Thaler, 199 A.D.2d 260, 260-261 [2d Dept 1993] ).

The first cause of action is a hybrid claim for negligence, alleging that SCHECHTER advised plaintiff BREYTMAN not to file related pro se actions, and for breach of a contract by claiming that SCHECHTER violated the retainer agreement by requesting that plaintiff pay for his psychological evaluation. SCHECHTER was not negligent in his representation of plaintiff in the underlying actions and with respect to his advice to plaintiff regarding the commencement of additional pro se lawsuits against the landlord. As noted above, in Rosner v. Paley and Ideal Steel Supply Corp. v. Beil, an attorney cannot be held liable for exercising discretion during litigation. "Attorneys may select among reasonable courses of action in prosecuting their clients' cases without thereby committing malpractice (see Rosner v. Paley, 65 N.Y.2d 736, 738)." ( Palazzolo v. Herrick, Feinstein, LLP, 298 A.D.2d 372 [2d Dept 2002]. "A purported malpractice claim that amounts only to a client's criticism of counsel's strategy may be dismissed." (Dweck Law Firm, LLP v. Mann, 283 A.D.2d 292 [1d Dept 2001] ). Plaintiff's breach of contract element in the first cause of action fails. The retainer agreement is clear. By its terms plaintiff BREYTMAN was paying SCHECHTER for legal services only. It did not indicate that the money which plaintiff paid SCHECHTER was to be used for the fees of experts. Therefore, plaintiff's first cause of action is dismissed.

The second cause of action also sounds in negligence. Plaintiff alleges again that SCHECHTER failed to return to plaintiff the file and failed to assert civil rights claims against the landlord. This claim lacks merit. SCHECHTER provided plaintiff with a complete copy of the file he maintained while representing plaintiff. Plaintiff failed to identify a single document which SCHECHTER had not produced for him. SCHECHTER's alleged failure to assert civil rights claims against the landlord was done in SCHECHTER's exercise of discretionary judgment during the course of litigation and SCHECHTER is not liable for this. (See Rosner v. Paley; Ideal Steel Supply Corp. v. Beil; Palazzolo v. Herrick, Feinstein, LLP; Dweck Law Firm, LLP v. Mann ). Therefore, plaintiff's second cause of action is dismissed.

The third cause of action alleges fraud, claiming that SCHECHTER "split the money" with the psychologist and took the case despite not being able to prove malice to support false arrest and malicious prosecution. SCHECHTER points out, in ¶ 42 of his affidavit in support of the motion, that plaintiff drew a check to the order of the examining psychologist and denies splitting any fee with the psychologist. With respect to malice, SCHECHTER, also in ¶ 42 of his affidavit in support of the motion, concludes that there was more than adequate evidence to establish malice needed to support the false arrest and malicious prosecution claims, including that plaintiff was a tenant organizer and had taken the landlord to court on numerous prior occasions. "The actual malice' element of a malicious prosecution action does not require a plaintiff to prove that the defendant was motivated by spite or hatred ... Rather, it means that the defendant must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served." (Nardelli v. Stamberg, 44 N.Y.2d 500, 502-503 [1978] ). In plaintiff's criminal action, the Bronx County District Attorney had the action dismissed because it could not meet its burden of proof. This gives rise to an inference of malice. (See Fortunato v. City of New York, 63 AD3d 880 [2d Dept 2009] ). Therefore, plaintiff's third cause of action is dismissed.

The fourth cause of action, also sounds in negligence, alleging that SCHECHTER committed negligence by stipulating with landlord's counsel to allow the landlord to file a late answer and also stipulating to allow landlord's summary judgment motion to be heard on the same day as the motion for consolidation. Allowing a defendant to serve a late answer after a de minimus delay is not a departure from the standard of care of a reasonable attorney. It is good practice to avoid having defendant's insurance carrier disclaim for late notice. Also, stipulating to allowing two motions to be heard on the same day does not amount to a departure from the standard of care of a reasonably prudent attorney and did not prejudice plaintiff's actions. Therefore, plaintiff's fourth cause of action is dismissed.

The fifth cause of action alleges intentional infliction of emotional distress, claiming that SCHECHTER "went on a rampage in letters ... and in court with frivolous behavior with lies [¶ 64 of verified complaint]" which "cause me sever pain and suffering for physiological effects ... and causing me stress [sic] [¶ 68 of verified complaint]." SCHECHTER, in ¶ 46 of his affidavit in support of the motion, states "I did not in any way intend to inflict any emotional distress on plaintiff, and would like nothing more than to have no further contact with him." Further, SCHECHTER notes that when he filed an affirmation in support of being relieved, "I was careful not to divulge information which would be harmful to plaintiff or his case." Plaintiff failed to identify any conduct which comes even close to the requirements of an intentional infliction of emotional distress claim. Liability for intentional infliction of emotional distress requires plaintiff to identify conduct by defendants that "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 122 [1993], quoting Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303 [1983] ). Plaintiff failed to allege outrageous and extreme conduct by SCHECHTER that could be "utterly intolerable in a civilized community." Therefore, plaintiff's fifth cause of action is dismissed.

The sixth cause of action asserts that SCHECHTER violated plaintiff's civil rights by not providing plaintiff with his original file, including an allegation that the December 12, 2008 OSC violated "my civil right to my property [¶ 72 of verified complaint]." As noted before, SCHECHTER provided plaintiff with a complete copy of his file. Therefore, plaintiff's sixth cause of action is dismissed.

The seventh cause of action alleges slander, claiming that SCHECHTER defamed plaintiff in the December 12, 2008 OSC and in oral arguments on the OSC. In plaintiff's verified complaint, it is unclear as to what plaintiff is claiming was allegedly slanderous. However, even if SCHECHTER made a slanderous statement in his written OSC or oral arguments on the OSC, the statements are absolutely privileged. "[A] statement made in open court in the course of a judicial proceeding, is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation." (Martirano v. Frost, 25 N.Y.2d 505, 507 [1969] ). (See Impallomeni v. Meiselman, Farber, Packman & Eberz, P.C., 272 A.D.2d 579, 580 [2d Dept 2000]; Goldfeder v. Weiss, 250 A.D.2d 731 [2d Dept 1998]; Fabrizio v. Spencer, 248 A.D.2d 351 [2d Dept 1998] ). Therefore, plaintiff's seventh cause of action is dismissed.

The eighth cause of action alleges discrimination because plaintiff is Jewish and SCHECHTER's "tyrannical rant are identical to Gabble antiseptic rants against Jew in Germany [sic] [¶ 87 of verified complaint]." The Court assumes that plaintiff meant to state "Goebbels anti-Semitic rants," referring to Hitler's Minister of Propaganda. SCHECHTER, in ¶ 49 of his affidavit in support of the motion, states "I am not sure what plaintiff is referring to, as I did not make any discriminatory remarks to him. I also note that I am Jewish myself and also of Russian descent." This cause of action fails to identify any basis for discrimination other than plaintiff's claim, in ¶ 87 of the verified complaint, that SCHECHTER is from Austria and "Hitler is from Austria as well. That is racism at it best and that is exactly what fascist did [sic]." Even if SCHECHTER is of Austrian descent, to claim that all Austrians are racists and fascists because Hitler was an Austrian, demonstrates racism and prejudice by plaintiff BREYTMAN, not by SCHECHTER. Therefore, plaintiff's eighth cause of action is dismissed.

It is clear that plaintiff BREYTMAN blames SCHECHTER for his own shortcomings and failure to prevail against the City and plaintiff's former landlord. It was plaintiff BREYTMAN's decision to terminate SCHECHTER and live with the consequences. Plaintiff BREYTMAN, in his obsessive crusade against the City, his former landlord and SCHECHTER, should have heeded the famous admonition given by Cassius to Brutus, in Act I, Scene Two of William Shakespeare's Julius Caesar:

The fault, dear Brutus, is not in our stars, But in ourselves.

Plaintiff precluded from relitigation of the same claims

The Court is concerned that plaintiff BREYTMAN continues to use the scarce resources of the New York State Unified Court System to fruitlessly pursue the same claims. He is no stranger to litigation in Supreme Court, Kings County, Civil Term. The Court should not have to expend resources on the next action by Mr. Breytman that will be a new variation on the same theme of defendants' alleged misdeeds and misconduct. The continued use of the New York State Unified Court System for Mr. Breytman's scorched earth policy against defendants must cease.

Our courts have an interest in preventing the waste of judicial resources by a party who knows that his or lawsuit has no legitimate basis in law or fact and continues to attempt to relitigate resolved claims and issues. (Martin-Trigona v. Capital Cities/ABC, Inc., 145 Misc.2d 405 [Sup Ct, New York County 1989] ). The Court, in Sassower v. Signorelli (99 A.D.2d 358, 359 [2d Dept 1984] ), noted that "public policy mandates free access to the courts ... and, ordinarily, the doctrine of former adjudication will serve as an adequate remedy against repetitious suits." Then, the Sassower Court observed, in the next paragraph, that: "[n]onetheless, a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of court time, time that this court and the trial courts can ill afford to lose (see Harrelson v. United States, 613 F.2d 114). Thus, when, as here, a litigant is abusing the judicial process by hagriding individuals solely out of ill will or spite, equity may enjoin such vexatious litigation [emphasis added ]."

The instant action, "without the prior written permission of the Court," violates Justice Lewis' February 25, 2009 order, in Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v. OLINVILLE REALTY LLC and WEINER REALTY. Further, nowhere in plaintiff BREYTMAN's opposition papers does he deny sending the extremely offensive letter to SCHECHTER, attached to defendants' motion for summary judgment as exhibit N. Moreover, plaintiff BREYTMAN, despite Court directives, served his opposition papers directly upon SCHECHTER. Plaintiff BREYTMAN's abusive conduct toward SCHECHTER must cease. Pro se litigants whom abuse judicial process have had their access to the courts limited. In Spremo v. Babchik (155 Misc.2d 796 (Sup Ct, Queens County 1996] ), the Court, in enjoining a pro se litigant from instituting any further actions and proceedings in any court in the New York State Unified Court System, cited Sassower and Kane v.. City of New York, 468 F Supp 586 [SD N.Y.1979], affd 614 F.2d 1288 [2d Cir1979] ). The Kane Court, at 592, held:

The fact that one appears pro se is not a license to abuse the process of the Court and to use it without restraint as a weapon of harassment and libelous bombardment. The injunction herein ordered is fully warranted to put an end to such activity ... Commencement of action upon action based on the same facts dressed in different garb, after thrice being rejected on the merits and having been repeatedly warned that the claims were barred by res judicata, can only be explained as malicious conduct.

In Muka v. New York State Bar Association (120 Misc.2d 897 [Sup Ct, Tompkins County 1983] ), a pro se plaintiff commenced a fourth unsuccessful lawsuit against the State Bar Association upon various conspiracy theories. The Court in dismissing the action, based upon res judicata, observed, at 903, that "all litigants have a right to impartial and considered justice. Insofar as any litigant unnecessarily consumes inordinate amounts of judicial time and energy, he or she deprives other litigants of their proper share of these resources. A balance must be kept." Therefore, Mr. Breytman, with his history of abusing the civil justice system, by bringing pro se actions devoid of merit against various defendants and continuing to attempt to obtain his original file in the actions against the City of New York and his former landlord from SCHECHTER, is precluded from relitigating the same claims and issues which waste court resources and is enjoined from bringing any future actions in the New York State Unified Court System against DONALD SCHECHTER and DONALD SCHECHTER, P.C., without the prior approval of the appropriate Administrative Justice or Judge. The Court instructed, in Vogelgesang v. Vogelgesang (71 AD3d 1132, 1134 [2d Dept 2010], that:

The Supreme Court providently exercised its discretion in enjoining the appellant from filing any further actions or motions in the ... action without prior written approval. Public policy generally mandates free access to the courts (see Sassower v. Signorelli, 99 A.D.2d 358, 359 [1984] ). However, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will (see Duffy v. Holt-Harris, 260 A.D.2d 595 [2d Dept 1999]; Shreve v. Shreve, 229 A.D.2d 1005 [2d Dept 1996] ). There is ample basis in this record to support the Supreme Court's determination to prevent the appellant from engaging in further vexatious litigation. (See Capogrosso v. Kansas, 60 AD3d 522 [1d Dept 2009]; Simpson v. Ptaszynska, 41 AD3d 607 [2d Dept 2007]; Pignataro v. Davis, 8 AD3d 487 [2d Dept 2004]; Cangro v. Cangro, 288 A.D.2d 417 [2d Dept 2001]; Mancini v. Mancini, 269 A.D.2d 366 [2d Dept 2000]; Braten v. Finkelstein, 235 A.D.2d 513 [2d Dept 1997] ).

Conclusion

Accordingly, it is

ORDERED, that the motion of defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C., for summary judgment and dismissal of plaintiff ALEXANDER BREYTMAN's complaint, pursuant to CPLR Rule 3212(a), is granted; and it is further

ORDERED, that the instant complaint is dismissed with prejudice; and it is further

ORDERED, the cross-motion of plaintiff ALEXANDER BREYTMAN, for a sanction of $10,000.00 against defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C., pursuant to 22 NYCRR § 130-1.1, is denied; and it is further

ORDERED, that plaintiff ALEXANDER BREYTMAN is hereby enjoined from commencing any future actions in the New York State Unified Court System against DONALD SCHECHTER and DONALD SCHECHTER, P.C., without the prior approval of the appropriate Administrative Justice or Judge; and it is further

ORDERED, that any violation of the above injunction by ALEXANDER BREYTMAN will subject ALEXANDER BREYTMAN to costs, sanctions and contempt proceedings.

This constitutes the decision and order of the Court.

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

An 11-year-old Bronx boy died on the morning of Wednesday February 16, 2011 after he was struck by a car while he tried to cross the Grand Concourse on his way to buy milk for his family, police and witnesses said.

Russell Smith was crossing the busy street at 7:47 a.m. near the corner of East 183rd Street in the Tremont section when he was struck by a grey Honda.

Smith was taken to Bronx-Lebanon Hospital, where he was pronounced dead a short time later.

The boy's mother Monique Mitchell, 32, said, "I don't know what I'm going to do. He was a good kid, a smart kid. He had a lot of friends. Everybody loved him. He had a big heart."

His mother said in an exclusive television interview with NY1 that the family is "destroyed" by the incident.

Witnesses said Smith, a fifth-grader at nearby PS 9, was hit by the car's rearview mirror as he tried to cross a red light.

His family said Smith was on his way to a grocery store to buy milk for his infant brother.

"His body was broken, his head was smashed in, his front lip was split and his teeth was crushed," said Mitchell. "That was my boy."

"He's so close to his sister, his six-year-old sister, they're close. I don't know what's going to happen," said Mitchell as she was visibly upset. "I don't know how my kids are going to take it. He's got a six-year-old brother that's destroyed right now, and I'm trying to be strong for the rest of them. Oh god, this is so terrible."

Neighbors say that intersection is very dangerous, and that a 12-year-old girl was killed by a driver at the same intersection in 2005.

The boy's mother says he feared crossing the Grand Concourse and would often use a nearby subway station to cross underneath the street and come up on the other side to avoid the cars.

"This is my baby, and he's 10, so it's really hard for me. It's just really hard for me. I saw the aftermath," said eyewitness Michelle Jackson. "I didn't see him get hit, but I saw him there on the road. He was lifeless, there was no movement."

City motorcycle deaths on rise

There's no easy riding on the streets of New York.

Thirty-nine people died on motorcycles in the five boroughs in 2010, an increase of 10 -- or 34 percent -- over 2009's tally, the city Department of Transportation said.

Motorcycles account for 14 percent of all traffic fatalities in New York, although they make up just 2 percent of motor-vehicle registrations.

Motorcyclists are 18 times more likely to be killed in crashes than people in cars, buses or trucks. Speeding is a factor in 46 percent of motorcycle crashes, the city says.

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

Cuban immigrant dies after crashing car into hospital parking lot, cops told to wait for ambulance:

A man who suffered a heart attack and crashed his car just steps from an emergency room entrance waited nearly half an hour before an ambulance arrived to take him to the hospital, where he later died.

Birgilio Marin-Fuentes, a 61-year-old Cuban immigrant living in Portland, Ore., smashed his car into a steel pillar early Thursday morning while racing to the hospital after suffering a coughing fit in the middle of the night.

About 20 minutes after the crash, cops arrived on the scene and tried to save Marin-Fuentes. When one officer went to the emergency room for assistance, he was told he had to call for an
ambulance, police said.

"They left him to die," Marin-Funetes' wife, Claudia Luis Garcia, told The Oregonian.

The car wash worker was eventually wheeled into the hospital, but died on a gurney a short while
later.

"I don't know what else we could do," Portland Police Sgt. Debbie Steigleger told The Oregonian.

"With an automobile accident you don't know if the patient needs to be extricated or transported," hospital spokeswoman Judy Leach said. "There are protocols in place to ensure the right thing is done for the right patient at the right time."

Oregon Rep. Early Blumenauer has called for a federal probe of the hospital.

"It is not just heartbreaking, but incomprehensible that a hospital fully capable of treating this medical emergency left police officers with no medical equipment to tend to a patient," Blumenauer said. "If the police statements are correct, this incident defies common sense and it may well defy federal law."

Marin-Fuentes' wife mourns his loss.

---------------

Nearly two dozen club hoppers were injured after an out-of-control cabbie plowed into a crowd outside a San Diego nightclub after closing time early Saturday, cops said.

Police said the cabbie told them that he blacked out before veering off the road and crashing into the Singaree club in San Diego's trendy Gaslamp district.

Fire officials said 23 people were taken to the hospital and one woman had to have her leg amputated below the knee after the car pinned her against a wall.

Dozens more suffered scrapes and bruises, including the cabbie, who was attacked by an angry mob after the crash and suffered a broken nose, police said.

Clubgoers said it was typical for people to hang out outside the club after closing time, but the scene quickly became chaotic after the taxi jumped the curb and rolled over people.

"We saw a girl crying and we saw a female with a tooth missing, bloodied up and crying," clubhopper Jerel Duncan told San Diego's KSWB-TV. "We were like, what's going on? It was just hysteria, crazy and then we saw the actual cab on the curb."

Police said the 48-year-old driver, who was not named, may have fallen asleep. They don't think alcohol was a factor.

More than 60 cops, medics and firefighters arrived at the scene, which had erupted into a late night melee.

As many as 100 people swarmed the area after the crash, police said, and an angry mob pounded on the cab and dragged the dazed driver out of the car when he tried to back his vehicle away from the building.

Stingaree owner James Brennan told the San Diego Union-Tribune that during the scuffle, the frightened driver grabbed a pair of scissors and swung them at one of the club managers.

San Diego Police spokesman Lt. Todd Jarvis told the Tribune the cabbie was going about 15 mph at the time of the crash.

At one point, crews had to clear victims from the scene after officers spotted what they thought could be a bomb inside the taxi.

Jarvis told the Tribune that officers were concerned when they saw a bag with wires coming out of it on the seat of the taxi, but it turned out to be a massager.

Investigators said they were treating the incident as an accident and had not pressed charges against the driver.

The club was reopened on Saturday night.

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

A Rosedale pastor is recovering at a Long Island hospital and the authorities were hard at work on Tuesday February 8, 2011, searching for the suspected hit-and-run driver who put him there.

The Rev. Aubrey Bougher, the pastor of the Evangelical Lutheran Church Of Christ, suffered four broken ribs and an injured pelvis after he was struck by a pickup truck at the intersection of Sunrise Highway and Francis Lewis Boulevard around midnight Saturday, police said. The pastor was walking back from the Rosedale Long Island Rail Road station after attending a concert at Carnegie Hall, the church said.

The driver kept going and was never seen again, but several pedestrians came to the aid of Bougher and got him off the street until the ambulance came to take him to Franklin Hospital, according to parishioner, Isabelle Coles-Dunbar. "God interceded because people came in and helped," she said. "That intersection is dangerous and he could have been hit again."

No arrests had been made as of press time Tuesday, but one of the good Samaritans was able to spot the car as it drove off, according to a police source.

"We do have a plate and the detectives are on the case," the source said. In the meantime, the church, located at 248-01 Francis Lewis Blvd., is continuing to offer its religious services and keep spirits up in Bougher's absence. The Sunday masses were held in his honor and went off without a hitch, according to Coles-Dunbar. "He's an organized person so he was able to instruct us on what to do to get a replacement for services on Sunday," she said.

The pastor has been in good spirits, according to parishioners, and recovering well at his hospital bed. Parishioner Paul Mader said Boughner was listed in stable condition and may need a hip replacement for his injuries. It was not known when he would be released. Bougher joined the parish in 1981 and has been active in the church community.

Aside from his duties behind the pulpit, parishioners said he works with the youth in the neighborhood and serves as a chaplain for the Rosedale Civic Association. "Right now [the parishioners] are very upset," Herbert Dunbar said of the accident. "He's a very energetic guy and very popular."

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

An elderly woman died Friday morning, Friday, February 11, 2011, after a fire broke out on the second floor of the four-story apartment building run by the New York City Housing Authority.

A second elderly women was in critical condition after fire officials said a three-alarm blaze started at 6:03 a.m on the second floor of 1142 Lenox Road in Brownsville, Brooklyn.

Three residents were taken to the hospital, two with serious injuries. One of the fire victims, a 70-year-old woman, was pronounced dead at the hospital.

The woman who died in the fire was not identified.

It took about 130 firefighters an hour to bring the fire under control.

Seven firefighters also suffered minor injuries when a floor collapsed beneath them.

Residents were rescued from fire escapes and the roof.

"We had to force entry. We had to bring people out from ladders, off the roof, from our buckets, off the fire escape. We had to remove a lot of people," said FDNY Deputy Chief Stephen Moro. "There was smoke throughout the whole building. Heavy fire on two floors with extension to the top floor."

"We couldn't make it through the front door so we just went to the fire escape. There was smoke everywhere," said one building resident.

"We realized it was a fire and I got my family members and we got out the building," said another. "When we got down to the lobby, the whole building was full of black smoke."

The Red Cross is assisting about 50 people who have been left out in the cold. At least four units of the building were left completely uninhabitable by the blaze.

It's unclear what sparked the flames, but some residents said that heating in the building had been very low and so they had begun using space heaters. The FDNY said a space heater left on overnight near a curtain was the cause of the blaze.

Comment: I've blogged before this winter about fires caused by space heaters in buildings with little heat.

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

Claudia Aderotimi complained of chest pains and shortness of breath sometime after she underwent a backroom buttock enhancement procedure at a hotel room in Philadelphia on Monday, February 7, 2011. She later died.

The British woman who died after having a back-room buttock-enhancement procedure in a Philadelphia hotel was an aspiring hip-hop vixen who was told a bigger booty would make her a star.

Claudia Aderotimi, 20, was a dancer and a choreographer with "a drive to be famous," a heartbroken pal told the U.K.'s Sun newspaper, and had impressed talent scouts after she wore butt-padded pants to a rap-music video audition.

Aderotimi, who sometimes spelled her name Claudiya and used the stage names "Carmella ames" and "Carmella London," had once boasted on a British website for wanna-be celebs that "Superstar is my middle name," according to the Philadelphia Inquirer.

But after scouts discovered her posterior was a fake, her phone stopped ringing, talent scout and friend Tee Ali told the Sun.

"She thought if she had a big booty, she would have been in better videos and been more famous," Ali said.

Aderotimi flew from London to Philadelphia with three other women on Saturday and checked into a Hampton Inn near Philadelphia International Airport .

She and another woman paid more than $1,000 to receive injections to plump their rears. Aderotimi was rushed to the hospital at 1:30 a.m. Monday after complaining of chest pain and shortness of breath, police said, and died later that day.

Early reports said Aderotimi died after silicone from the shots seeped into her bloodstream and caused a heart attack or coronary embolism.

But Delaware County Medical Examiner Fredric Hellman said Wednesday that a preliminary cause of death wouldn't be known until further testing was completed.

Liquid silicone is commonly used in back-room breast and butt-enhancement procedures, as are
paraffin, petroleum jelly and hydrogel. Injections using these agents are not approved by
the Food and Drug Administration.

Aderotimi's friend also received shots in her butt and hips, but did not get sick, police said.

No arrests have been made in the case, but police were questioning a woman in New Jersey who is suspected of setting up the appointment for Aderotimi and the other woman, Philadelphia Police Lt. Ray Evers said Wednesday.

Cops are also hunting for a second woman, who, they said, performed the procedure.

In recent years, similar cases involving women dying or suffering health problems after receiving
illegal cosmetic injections have been reported in New York, New Jersey and Los Angeles.

Many of the victims come from abroad after being lured by Internet ads promising cheap, safe and quick procedures, experts said.

In the U.S., big bums are all the rage as women aspire to achieve the curves of celebs like Kim
Kardashian, Beyoncé and Nicki Minaj, and websites and chat forums where users trade butt-
enhancement tips have become increasingly popular.

On one chat forum hosted on Topix.com, a user from Los Angeles wrote, "It's like the biggest thing in California now! Girls are all going in for butt jobs so they can look like Kim Kardashian. Some plastic surgeons have special packages now where you can get both your boobs and your butt done for a reduced price!"

Friends and family who gathered at Aderotimi's home in East London on Wednesday night said they were devastated she had gone to such lengths to achieve her dream.

"Claudia was a really pretty girl. I don't know why she felt she had to have the treatment," a 17-year-old neighbor who did not want to be named told The Mirror. "It's such a waste."

Comment: All too common, in immigrant communities especially. People try to save money and go with unlicensed people who inject them with "who knows what"? And people die.

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

Two construction workers were killed earlier today (February 8, 2011) in Manhattan after falling about 65 feet from an Upper West Side building.

Fire officials say the men were working on top of an elevator shaft on the seventh floor of 150 West 83rd Street when they fell - landing on scaffolding on the third floor.

Officials at the scene are investigating what caused the fall. "The two workers that were with the victims, they were all iron workers, there were four of them, two of them fell down the shaft," said FDNY Deputy Chief Michael Mullins. "They're giving a statement to the police department right now at the precinct. I don't know if they slipped, something gave way."

EMTs struggled to revive both men at the scene before they were rushed to separate hospitals.

A 49-year-old worker was declared dead at Roosevelt Hospital, and a 51-year-old worker was declared dead at St. Luke's Hospital. Both worked for Weir Welding and Cross County Erectors.

Redeemer Church, the building's owner, says it immediately reported the incident to the Department of Buildings and is fully cooperating with its investigation. Redeemer, which is based in Midtown, is expanding its ministry by constructing a five-story building on the former site of a parking garage. Construction has been underway on the estimated $6.2 million project since late 2009. Redeemer bought the property in October 2008.

The New York City Police Department says no criminality is suspected at this time.

Comment: We have no indication if scaffold collapsed or some other safety or protective device failed or was not utilized.

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

Police sources say a driver involved in a hit-and-run accident that killed an elderly woman in Bath Beach, Brooklyn on Saturday morning, February 5, 2011, has been charged with vehicular manslaughter and other charges.

Mario Vasquez, a 52-year-old Brooklyn resident, will also face charges of reckless endangerment, leaving the scene of crime with a fatality, unauthorized use of a vehicle, driving a motor vehicle without a license and driving while intoxicated, according to police sources.

Maria Prikul, 80, and another woman were walking near Bath Avenue and 18th Avenue at around 10:15 a.m. Saturday when they were struck by a Chevy van, according to police.

The van kept on going and eyewitnesses say Prikul was dragged an entire block.

One good Samaritan said, "I looked at her face, but she was already dead. Her clothes were ripped. There was blood in her mouth."

The driver was apprehended by neighbors a few blocks away.

"She was underneath the minivan and the front right tire. The van pushed her one block, from 18th Avenue to Bay 17th," said an eyewitness.

Prikul was transported to Lutheran Hospital, where she was pronounced dead.

The other woman was hospitalized with an injured foot, but was expected to be okay.

Prikul's daughter, Rita Shulman, said she had been suffering from lung cancer. "Last night, when I talked to her, I told her not to go out," Shulman said. "I'm still shocked." Prikul lived on her own at the Bath Beach senior housing complex. At least one other woman was killed by a hit and run driver in the city yesterday, and all signs point to hit and run in the case of Brooklyn biker Serena.

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

A Nassau County police officer died on Friday, February 4, 2011 after his cruiser was hit by a flatbed truck during a routine traffic stop on the Long Island Expressway in New York's Nassau County.

Authorities identified the officer as 44-year-old Michael Califano. He had been on the force for 12 years.

The flatbed truck driver was charged today in Califano's death.

The officer had pulled a vehicle over near exit 39 in Old Westbury late Friday night and was sitting in his car with lights blinking when it was struck from behind shortly before 11 p.m., authorities said.

The impact propelled the cruiser under a stopped box truck, while the flatbed mounted the police vehicle's roof. The severely injured officer was freed from the wreckage with heavy cutting tools, including the Jaws of Life, but died hours later at a hospital.

Three other people suffered less serious injuries in the wreck, said Nassau County police Lt. Kevin Smith.

The wreck closed part of the expressway for hours overnight.

The flatbed truck driver, 25-year-old John Kaley of New Britain, Conn., was arraigned Saturday in Hempstead District Court on charges of criminally negligent homicide, third-degree assault and failing to move over for an emergency vehicle, police said. (See my recent blog on the one-month-old New York State Move Over Law.)

The injured included two people who were in the box truck and a female passenger in the flatbed truck. All were being treated at a hospital.

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

A hit-and-run driver slammed into a disabled grandmother in East Harlem yesterday - and sped off with the mortally wounded woman's body splayed on his hood for two blocks, police said.

A limping Ilia Lopez, 58, was struck at E. 121st St. at Second Ave. about 4:05 a.m. by a dark sedan, cops said. There were more than a dozen horrified witnesses.

"The way he hit her, you could never hear her scream," said witness Marilyn Baretto. "It was a crash like two cars hit." With Lopez's body on his hood, the driver sped south and turned left on E. 120th St. It wasn't until the driver reached First Ave. that her body rolled off the car, cops said.

Lopez was crossing Second Avenue in front of the clinic when a black sedan that looked like a livery cab hit her head-on, witnesses said.

"He was going at more than 35 mph," said Eric Puello, 42, also a patient at the clinic.

Lopez was rushed to Harlem Hospital, where she was pronounced dead.

"I'd like to get behind the wheel and do to him what he did to my wife," fumed Lopez's husband, Juan Rojas. "She was a good woman, a good mother and a good wife." "He just left her there as if she was a dog," said Rojas, who lived with her in the Norwood section of The Bronx.

"I'm sure the driver does not have a mother. That's how I feel," said Rojas, 77, who phoned Lopez's three grown children to tell them of the tragedy.

Lopez, a mother of three adult children from the Bronx, had trekked to Harlem to pick up methadone from a clinic close to the scene of the crash, her pals said. She had been crossing the street to retrieve a milk crate to sit on while she waited for Harlem East Life Plan's 6 a.m. opening.

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

Falls can have a devastating effect on the elderly. In the event you have elderly parents or friends & take care of them in the house, fall prevention must be thought about so that they have safe & secure living surroundings.

Statistics indicate that one in three seniors living in their own residence or in the home of adult children caregivers suffers a serious fall at least one time a year. In addition, half the seniors who suffer from a serious fracture, such as a pelvic, hip, or spinal fracture, never completely recover from the injury. Adding medical complications created through immobility or bed-bound conditions, it's not surprising that 25% of such seniors die within two months to a year following such an injury.

Often, those involved in the care of aging parents do not recognize how many fall hazards exist in the common household, until their elderly parent takes a bad fall & breaks a leg or hip & is hospitalized for months.

Falls are not just the result of getting older. And many falls can be prevented. Falls are usually caused by various factors. By changing some of these factors, you can lower your loved ones' chances of falling. You can reduce the chances of falling by following these guidelines:

*Start a regular exercise program. Lack of exercise leads to weakness & increases the chances of losing balance. Exercise will make a person stronger & feel better. There are exercises that are designed to improve balance & coordination (like Tai Chi). Any exercise program undertaken ought to be approved by a doctor or other professional health care worker.

*Make your home safer. Remove clutter. About half of all falls happen at home. To make your home safer, reduce household hazards that can contribute to slipping. falling.

*Remove clutter, things you can trip over (such as papers, books, clothes, & shoes), from stairs & traffic areas. Keep objects organized to reduce confusion.

*Make certain no extension cords are exposed.

*Remove small throw rugs or use a non-skid backing or double-sided tape to prevent rugs from slipping.

*Keep items you use often in cabinets that are simple to access without a step chair.

*Have grab bars installed next to your toilet & in the tub or shower. Soap or towel holders are not designed to bear the weight of a human being.

*Use non-slip mats in the bathtub & on shower floors. it's a good suggestion to redesign the tub & make it a walk-in shower with a chair, if feasible.

*Improve the lighting in your home, in the hallways & stairways. As you get older, you need brighter lights to see well. Lamp shades or frosted bulbs can reduce glare.

*Have night lights to reduce the likelihood of falls for those middle of the night journeys to the bathroom.

*Have lights and proper handrails on all staircases. Use handrails on all steps no matter how simple the steps are to climb or how many times you've been up & down them before.

*Outdoor lighting can be just as important as indoor lighting. Use all the available outdoor lights whenever feasible. Sensor lights are available that will turn on whenever there's movement. That's good for you & bad for intruders.

*Wear shoes that give good support & have non-slip soles. Avoid wearing slippers & athletic shoes with deep treads.

*In the event you have pets, be aware of where your pet is & be cautious when visiting others who have pets. Be watchful for pet "accidents" that can make the floor slippery.

*Avoid broken sidewalks or areas under construction, if at all feasible.

*Keep in mind that you should to get up from a laying down position slowly in the event you have heart problems or high blood pressure, so as to avoid dizziness.

*Have your health care provider review your medicines.

*Have your doctor or pharmacist look at all the medicines you take, including any over-the-counter medications that don't need prescriptions, to check for interactions. When you go to the doctor, be certain to take your medicines or a complete list of them with you. Again, be certain to include non-prescription medications. As you get older, the way some medicines work in your body can alter. Some medicines, or combinations of medicines, can make you drowsy or light-headed which can lead to a fall.

*Have your vision checked. Make certain your eyeglasses have your latest prescription.

*Have your eyes checked by an eye doctor. they or she might find that your prescription is outdated or that you have a condition that limits your vision, such as glaucoma or cataracts. Poor vision can increase your chances of falling on slippery walking surfaces.