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

Accident case discussion from the Supreme Court, Appellate Division, First Department, New York.

Castillo (Plaintiff) v. Collado (Defendant)

Decided: April 26, 2011.

I have previously written reports and blogs about New York State's serious injury threshold requirement to maintain a lawsuit for car accident-related injuries. Simply put, in order to sue, an injured accident plaintiff has to be injured enough to fall within one of New York State's nine statutory "No-Fault threshold" categories. Defense attorneys try to manipulate this legal standard to get the accident claims of injured victims tossed out because of this technicality.

Today's case discussion is based on a just-reported appeals decision where the accident plaintiff's lawyers did a very nice job fighting off a defense "threshold" motion for summary judgment.

It seems that the injured plaintiff had left knee surgery after his accident.

Defendants have the plaintiff examined by their chosen "independent" orthopedist. Defendant's hired gun gives a sworn report that delivers a double whammy. First, he swears that the knee is normal - although it's not 100% clear from the decision if he examined the plaintiff's knee before or after the surgery. Second, he reviewed the MRI test of the knee performed three weeks after the accident and saw no injury to the knee.

So while the defense orthopedist says that there's nothing there, the defense radiologist (another hired gun) reviews the MRI and swears that she sees a tear but it's an old (or degenerative) injury.

I hope that you're paying attention, Dear Readers. The defense attorneys, through their doctors, are arguing that there's nothing wrong with the accident victims's knee and, anyway, if there is it was there before the car accident.

The injured plaintiff's lawyers were on the ball. They submitted an affirmation by the orthopedic surgeon who performed the arthroscopic surgery on their client's left knee, in which he stated that plaintiff "is left with a significant permanent loss of use of the left leg," and explained the objective testing methods he employed that supported his conclusion that the injury was causally related to the accident. And he should be in the best position to know, since he went and looked inside the knee surgically.

Leaving nothing to chance, the plaintiff's lawyers also submitted an affirmation by a radiologist who stated that he found no degenerative changes in the left knee. And the appeals court points out that at the time of the accident he injured plaintiff was only 21 years-old. So how much arthritis could he have in his knee, anyway?

And leaving no stone unturned: plaintiff also raised an issue of fact in opposition to defendant's showing as to his 90/180-day claim - that he couldn't engage in his "usual and customary" activities for 90 of the first 180 days after the accident - by submitting his deposition testimony and affidavit setting forth the extent to which he was prevented from performing his usual activities, and an affirmation by his orthopedic surgeon, who provided the requisite objective medical evidence to support the claim.

Well done, plaintiff's lawyers!

ANOTHER INJURED CAR ACCIDENT VICTIM DENIED HER DAY IN COURT DUE TO LEGAL TECHNICALITY     (Posted by Queens Accident Injury Lawyer Gary E. Rosenberg on September 3, 2010)

SOFT TISSUE NECK INJURY AFTER AN ACCIDENT-MUST YOU SHOW A "SERIOUS INJURY"?      (Posted by Queens Accident Injury Lawyer Gary E. Rosenberg on May 1, 2010)

NO-FAULT THRESHOLD BOOBY TRAP    (Posted by Queens Accident Injury Lawyer Gary E. Rosenberg on November 10, 2009)

AFFIRMING PHYSICIANS' REPORTS     (Posted by Queens Accident Injury Lawyer Gary E. Rosenberg on December 17, 2007)

BACK ATCHA YOU DEFENSE PUKES     (Posted by Queens Accident Injury Lawyer Gary E. Rosenberg on December 14, 2007)

QUEENS COUNTY COMMUNITIES

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 Injury Attorney)

Comment: Every year at about this time of year reports of children drowning in accidents start to come in. Please pool owners; watch your pools and take safety measures to prevent drowning accidents, especially by young children that don't know better.

Pool Safely Public Service Announcements Urge Parents to Watch Children At All Times Around Pools and Spas This Summer.

WASHINGTON, D.C. - With the summer swimming season just around the corner, the U.S. Consumer Product Safety Commission's (CPSC) Pool Safely: Simple Steps Save Lives campaign is releasing its 2011 television and radio public service announcements (PSAs) highlighting various water safety steps that can be taken to prevent a drowning accident and save a life.

In the first few months of 2011, there have been 37 drownings and 38 near-drowning incidents reported by the media across America. Developed with the campaign's national partners the American Red Cross and the Y, the PSAs are being released nationally urging parents and children to adopt as many safety steps as possible in and around pools and spas. The Pool Safely campaign is the federal government's first-of-its-kind national public education effort to reduce accidental child drownings and near-drownings in swimming pools and spas.

"As the summer swimming season approaches, our message to parents and caregivers is simple: stay safe in and around pools and spas by practicing as many safety steps as possible. This includes staying close to children at all times, knowing water safety skills like CPR, and ensuring anti-entrapment drain covers are installed in all pools and spas," said Inez Tenenbaum, Chairman of the CPSC.

The PSAs introduce four families and their stories about the simple steps that save lives: door alarms, knowledge of CPR, fencing around pools and spas and safety drain covers in pools and spas. The radio PSAs promote the importance of swimming lessons as a simple step that saves lives. Available to local television and radio stations in both English and Spanish, the English-language versions feature Ming-Na, the voice of Mulan in Disney animated films and star of the NBC drama "ER", "The Joy Luck Club" and "Stargate Universe".

"So many of the drowning and near-drowning incidents that happen every year are preventable and every drowning and near-drowning is a terrible tragedy."concluded Tenenbaum.

CPSC Chairman Tenenbaum delivered a keynote speech at the National Drowning Prevention Symposium in Colorado Springs, Colorado. Her address at the nation's premiere water safety and drowning prevention conference focused on CPSC's role in preventing drowning, the Pool Safely campaign and its efforts to encourage compliance with the Virginia Graeme Baker Pool and Spa Safety Act, which mandated a national public education campaign about drowning and entrapment prevention. Tenenbaum also provided an update on the campaign and efforts to sustain drowning prevention advocacy through education, training and partnerships.

Since January 2010, the Pool Safely campaign has responded to over 600 media-reported drowning accidents, near-drowning and entrapment accidents. Steps such as staying close to children at all times, learning water safety skills and having the appropriate equipment, can help families have a safer experience in and around pools and spas.

About CPSC

CPSC is an independent federal regulatory agency created by Congress in 1972 "to protect the public against unreasonable risks of injuries and deaths associated with consumer products." The Pool Safely campaign is CPSC's national information and education program associated with the Virginia Graeme Baker Pool and Spa Safety Act (P&SS Act). The Pool Safely campaign is designed to raise public awareness about drowning and entrapment prevention, support industry compliance with safety standards, and improve safety at pools and spas. The Pool Safely campaign is proud to partner with leading organizations, including Abbey's Hope, American Red Cross, Asian American Hotel Owners Association (AAHOA), Association of Pool and Spa Professionals (APSP), Infant Swimming Resource, National Aquatic Safety Company (NASCO), National Drowning Prevention Alliance (NDPA), National Swimming Pool Foundation, Safe Kids USA, United States Swim School Association, USA Swimming Foundation, World Waterpark Association (WWA), and The YMCA of the USA. For more information, visit the website at www.PoolSafely.gov and follow the campaign on Twitter @poolsafely.

---

The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of injury or death from thousands of types of consumer products under the agency's jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard. The CPSC's work to ensure the safety of consumer products - such as toys, cribs, power tools, cigarette lighters, and household chemicals - contributed significantly to the decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

To report a dangerous product or a product-related injury, call CPSC's Hotline at (800) 638-2772 or CPSC's teletypewriter at (301) 595-7054. To join a CPSC e-mail subscription list, please go to https://www.cpsc.gov/cpsclist.aspx. Consumers can obtain recall and general safety information by logging on to CPSC's Web site at www.cpsc.gov.

TWELVE YEAR-OLD HARLEM GIRL DROWNS IN TRAGIC BEACH ACCIDENT WHILE ON NYC SCHOOL OUTING   (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on June 26, 2010)

ELEVEN YEAR-OLD DROWNS IN FRIEND'S POOL IN LONG ISLAND    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on June 18, 2010)

TODDLER IN CRITICAL CONDITION AFTER STATEN ISLAND DROWNING ACCIDENT    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on May 30, 2010)

TODDLER CRITICALLY INJURED IN POOL DROWNING ACCIDENT    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on May 24, 2010)

WHAT IS AN "INFANT COMPROMISE"?     (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on April 13, 2008)

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

WHO:  Bronx fire killing a mother, father and their 12-year-old son and injuring eight others, officials said.

WHAT:  Accident. Two-alarm fire that left three people dead in the Bronx. The children were taken to St. Barnabas Hospital. Four other residents were taken to Jacobi Medical Center for smoke inhalation and two firefighters were treated for minor injuries.

12-year-old Christian Garcia, his 40-year-old mother Christina and her partner, 36-year-old Juan "Manuel" Lopez.

Neighbors said the dead couple had two younger children who escaped with an uncle.

WHEN: Monday April 25, 2011 about 3:30 a.m.

WHERE: Accident and fire occurred in a Bronx apartment building, second floor of 2321 Prospect Ave. near 185th Street in Belmont, Bronx, New York

HOW:  "There were heavy fire conditions on both the second and third floors of a three-story brownstone. When we arrived, numerous people on the street were screaming," FDNY Assistant Deputy Chief James Leonard said.

Eduardo Sanchez had a room on the second floor of 2321 Prospect Avenue, and he lost everything, including the money he was saving to move out. He came home from work to learn three of his neighbors' deaths.

"I saw them every day. Every day I saw them," said Sanchez. "We chit-chat, had little conversations. They were good-hearted people."

"It's all rooms. There's like four rooms to a floor - all separate doors," said 25-year-old bouncer Eduardo Sanchez, whose second-floor apartment was destroyed in the blaze.

Sanchez said ConEd had recently cut off power.

"The lights been off for a couple of days. We didn't have power for almost a week," he said. "The owner must not have paid that."

ConEd confirmed shutting off service on April 14, the same day the buildings department received its most recent complaint.

Officials also said a wire was bringing in illegal electricity from outside power source through a window and that Con. Ed shut it down last week. Looks like the fire started by accident.

City officials said the building was illegally occupied.

"The building should have been empty," a law enforcement official told The Post.

Those who lived in 2321 Prospect Avenue said the second and third floors each had four rented rooms. Residents said there was a smoke detector in the building, but it was not working.

WHY:    Seems like there was an illegal boarding house being operated there. Without the many building code safety protections that boarding house are required to have, even a fire started by accident can be catastrophic.

"It's been like that for a year. The place went into foreclosure and people kept going in there," said neighbor Mike Lopez. "There's been 10 different families that moved in and out of there,easily."

Property records show the building had slipped into foreclosure in 2005 and that ownership had passed through several banks since then. Neighbors said squatters soon began taking over.

The cause of the accidental blaze was not immediately known. It took about 100 firefighters to control the blaze.

WITNESSES:   Neighbors said they were awakened by the smell of smoke and that flames soon engulfed the building.

"We tried to go outside and there were flames burning so bad we could barely get out," said 31-year-old Stephanie Marsh, who lives in the adjoining building.

The building next door was damaged as well. A resident there, Stephanie Marsh, said she heard screaming and glass breaking, and she dialed 911 before escaping with her family.

"When we got to our front door, the next door was, their front door was engulfed in flames so it was hard for us to even get out," said Marsh. "It's just hard right now because I'm about to have another child. What are we going to do?"

New York City Buildings Department records show numerous complaints dating back to 2009 about amateurish electrical wiring, illegal subdivisions and a lack of secondary exits from apartments. Residents said the floors had been cut up into single-room apartments.

The records show inspectors tried to gain access to the building many times but were unable to get inside.

The last owner of record, Domingo Cedano - who runs a used car dealership on Park Avenue in the Bronx - said he had spoken to fire officials but insisted he had nothing to do with the building.

"I feel bad, but I am not the owner anymore," he said. "I don't want to give any information because the building is under investigation."

Local residents said the three victims were a family of immigrants from Mexico - a 40-year-old mother, 36-year-old father who worked in construction, and the 12-year-old son.

"They are a good family," said one neighbor, who gave only her first name, Ruthie.

The parents had two other children who survived after being pulled out of the building by their uncles. The uncles also lived in the apartment, neighbors said.

One of them tried to run back into the building, but was repelled by the flames. He then ran to the roof of a neighboring building and tried calling to his brother, but got no response.

"He never answered, he never came out," said Delsa Martinez, who lost her second-floor apartment in the fire. "It happened so fast. They were good people. I can't believe they died in seconds like that."

RELATED POSTS:

CARELESS USE OF SPACE HEATERS IN COLD WEATHER CAN INJURE OR KILL     (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on January 15, 2011)

ACCIDENTAL FIRE IN BROOKLYN KILLS SENIOR CITIZEN     (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on December 31, 2009)

BRONX FIRE CRITICALLY INJURES TWO    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on February 23, 2010)

FIRE KILLS MANHATTAN FAMILY; SMOKE DETECTOR BROKEN     (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on October 12, 2008)

THREE KILLED IN BROOKLYN APARTMENT FIRE      (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on January 19, 2008)

FIRE SEVERELY BURNS CHILD        (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on December 28, 2007)

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

Creative accident lawyering that didn't work; maybe the lawyer was a little too creative.

This case out of Brooklyn, New York, and decided by an appeals court on April 19, 2011.

A Brooklyn mother (plaintiff Marcella Jiminez) and son (plaintiff Justin Abundiz) were minding their own business, standing in front of a Brooklyn building.

Defendant-car driver (Nazar Hussain Shahid) lost control of his motor vehicle, which mounted the sidewalk, and struck them as they were standing on the front steps of the Brooklyn building.

The injured plaintiffs tried to escape the car bearing down on them by running into the building.

Failing to get away from the car that was bearing down in them, they took the hit and were injured.

The injured mother (Abundiz) allegedly tried to enter the building to escape the oncoming vehicle, but he was unable to open the door in time because it was "poorly maintained" and "unreasonably difficult to open." So she not only sues the car for her and her son's personal injury, she also sues the building owner(defendant Drenis Properties, LLC).

HOLDING: The lower court dismissed the accident victims' case against the building owner and the appeals court agreed.

Even giving the injured plaintiffs the benefit of every possible favorable inference, the court found that they failed to set forth a cognizable cause of action to recover damages for negligence against the building owner. The court pointed out: "Here, the plaintiffs failed to sufficiently allege any valid basis for the imposition of a duty of care on behalf of [the building owner] to safeguard against the risk that a car would mount the sidewalk and strike a pedestrian."

Comment: I'm an attorney representing injured people and accident victims, but I still believe that this is a rational and correct decision. What did the building owner do wrong, really?

FATAL ACCIDENT WHEN TAXI SLAMS THROUGH BRONX STORE WINDOW, KILLING SHOPPER      (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on April 22, 2011)

CAR JUMPS CURB BY QUEENSBORO BRIDGE, KILLS PEDESTRIAN, HITS BUILDING     (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on March 29, 2011)

NEW YORK CITY SANITATION WORKER KILLED BY CAR    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on December 21, 2010) 　

HIT-AND-RUN DRIVER KILLS PEDESTRIAN IN MANHATTAN     (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on November 27, 2010)

FIVE PEDESTRIANS INJURED IN TWO QUEENS CAR ACCIDENTS      (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on October 29, 2010)

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

On an idyllic August day in 2009, Kathleen Leeson took her children to church, fed them leftover pizza and planned to take them to the park.

But before they left, she decided to put her 2-year-old foster son, Angel, down for a nap. A short time later, her daughter came out of the bedroom and announced that Angel was "sleeping in the window with something around his neck."

Ms. Leeson, who lives in Montgomery Village, Md., found him lifeless and hanging an inch off the floor, with a window-blind cord wrapped around his neck. "I was screaming his name and shaking him, and the realization hit me, 'Oh my God. This can't be happening.' "

For the last 25 years or so, manufacturers of window blinds have installed safety features and offered tips to parents to try to minimize the dangers from their products. Even so, children like Angel continue to strangle on the cords with grim regularity, an average of one a month.

Now, prodded by a Missouri mother whose daughter was strangled in a window blind, the Consumer Product Safety Commission has asked manufacturers to devise a way to eliminate the risks from window cords or perhaps face mandatory regulations. Critics of the industry complain that manufacturers have dragged their feet on addressing safety hazards for decades, making minor tweaks or putting the onus on parents to shorten cords or buy tie-down devices. Until recently, regulators have done little to crack down, they say.

In response to the commission's latest push, the industry, working with a task force of regulators and consumer advocates, says it will come up with a fix by the fall.

But the negotiations have gotten off to a rocky start. Like some other regulatory battles that involve consumer safety, this one comes down to a sobering question: how much should manufacturers, and ultimately consumers, be required to pay to prevent the maiming or death of a child?

Manufacturers of window blinds have offered several fixes that they say would reduce the hazards, but consumer advocates on the task force say they are inadequate and have threatened to quit.

"It was my understanding that we were eliminating the hazard," said Carol Pollack-Nelson, a safety consultant and member of the task force. "Now they are talking about reducing the hazard. We don't want reduced strangulation. We want no chance of it."

Regulators at the Consumer Product Safety Commission also rejected the industry's proposals, and they urged manufacturers to try again. Inez Tenenbaum, the commission's chairwoman, emphasized that the commission staff plans to continue negotiating with manufacturers to find a solution.

"We are going to stay at the table," Ms. Tenenbaum said, adding, "I hope everyone will stay at the table."

What makes the debate over window blinds so vexing is that a solution has been available for several decades: cordless blinds. But cordless blinds are more difficult to manufacture than corded blinds, and can cost considerably more in stores, by some estimates, twice as much.

In an interview, Ms. Tenenbaum said cordless blinds were part of the solution. But the additional cost, she said, had prompted her to push manufacturers to find cheaper alternatives, too, like retractable cords or cords that are covered and therefore inaccessible to children.

Ralph J. Vasami, executive director of the Window Covering Manufacturers Association, said it was unrealistic to expect the industry to eliminate every possible hazard. Window blinds are not children's products, he said, nor are they defective. His trade group urges parents of young children to install cordless shades.

"The objective is to minimize the hazard as much as possible," said Mr. Vasami. "I don't know if you have it in your power to eliminate every hazard for every product."

Mr. Vasami argued that the industry's efforts have had a positive effect, citing the fairly stable rate of strangulation deaths even as the industry has grown. He predicted that the number of deaths would inevitably decline as older products were replaced by those with more safety features. "Just looking at it from a statistical standpoint, there will be a lessening over time," he said.

There are more than one billion blinds in the United States. Americans buy new shades, on average, every seven years, Mr. Vasami said.

Consumer advocates and attorneys contend that manufacturers have overstated the additional costs of making cordless blinds. But in the vast market for low-end blinds, even an extra dollar or two can cost a manufacturer precious market share, said James G. Onder, a St. Louis lawyer who has represented numerous parents whose children have been injured or killed by blinds.

"Every major manufacturer now has alternative cordless designs," he said. "When I attack them on it -- 'Hey, you have this alternate design, why not sell the safe blind?' -- they say, 'We want to sell people what they want.' "

He added, "What they are really trying to do is reach a low price point."

He said manufacturers have repeatedly testified in depositions that the additional cost of making a cordless blind is $1 to $2.

Ms. Tenenbaum's task force is trying to solve what has been a particularly pernicious household hazard. Though manufacturers have taken steps to minimize the hazard and some parents have followed safety instructions, children have continued to find ways to make a noose out of window-blind cords.

For instance, in Colorado, 4-year-old Mason Holitza pushed a plastic table against a window and pulled the cord around his neck, even though his parents had cut the cord short and attached it to a cleat. Mason survived, with severe rope burns around his neck.

In California, Jessie and Michelle Hawk put up baby gates and installed plug covers and cabinet locks when their triplets were born; they also tied up the cords, out of reach, in their nursery. But 16-month-old Jacob, one of the triplets, managed to reach the inner cord -- for raising the slats of the blinds -- from his crib and wrap it around his neck, strangling the boy to death.

In Maryland, Ms. Leeson said she had tied the cord to a cleat near the top of the window. But her 4-year-old daughter pulled it down by standing on top of a dollhouse, then put the knotted cord around a stuffed animal's neck.

"Angel must have gone over and done the same," Ms. Leeson said.

Regulators have been aware of the hazards of window cord blinds since at least the early 1980s, when a federal study to determine the causes of child strangulation tied 41 deaths to drapery and blind cords. Everything from warnings to discontinuing certain styles like horizontal blinds with pull cords ending in a loop, to other fixes like a breakaway device, have been tried. One manufacturer, Comfortex, produced an ad that highlighted its own solution to the cord problem. "In 1996, only one company offered a real solution to the problem of injuries due to cords," says the advertisement. "While the industry searched for ways to make cords safer, Comfortex found a way to make shades without cords."

Linda Kaiser, who lives in suburban St. Louis, said she had never heard of the inner cords in blinds when she put her 1-year-old twins, Cheyenne and Seth, to bed in their cribs in 2002. When she checked on the babies before she went to bed, Cheyenne was dead. The girl was found sitting up in the crib with the inner cord wrapped around her neck.

"I knew to keep pull cords out of the way. I had put them on top of the valence," said Mrs. Kaiser, who was a dental assistant at the time. "I had no knowledge of inner-cord strangulation."

Mrs. Kaiser, 38, who delivered her fourth child recently, a girl named Yahna Elisabeth, began a long campaign to educate other parents about the dangers of window-blind cords and to push regulators for tougher standards. She and her husband, Matt, co-founded Parents for Window Blind Safety.

In 2009 her efforts paid off. The safety commission recalled 50 million Roman shades and roll-up blinds after she spent years warning of their dangers. It was one of the largest recalls in history, and some retailers have stopped selling those types of shades altogether.

As for the task force, she said the proposals floated by manufacturers -- like tie-down devices for cords -- do not always work. Tie-down devices get torn off the wall, leaving a loop that children can get tangled up in, she added.

"I feel like I'm so close," she said of the task force's efforts. "This is the best shot we've had."

Ms. Leeson, in Maryland, pursued a separate campaign, finally persuading the Maryland legislature to ban corded blinds in child care facilities and foster homes, which took effect in October. She said fighting for the law "gave her a purpose for getting up each day." But she added, "Nothing that happens can ever make up for what I lost, even if there was a national law with his name on it."

Comment: Slatted window shutters are one solution.

HOODED SWEATSHIRTS = RISK OF STRANGLING ACCIDENT; SEVERAL BRANDS RECALLED DUE TO HAZARD (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 20, 2010)

CHILDREN'S HOODED SWEATSHIRTS CAN STRANGLE KIDS     (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on January 6, 2010)

WIND CHIME TOYS RECALLED; THEY PRESENT PUNCTURE AND LACERATION HAZARDS TO CHILDREN    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 13, 2010)

CYBEX STROLLERS PRODUCT OF U.S. AND CANADA TWO-NATION PRODUCT RECALL (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 4, 2010)

"DROP SIDE" CRIB BRANDS RECALLED; THREE DEATHS TO INFANTS REPORTED    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 10, 2010)

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

WHEN: Thursday April 21, 2011, at approx 2:50 P.M.

WHAT: Fatal accident; pedestrian killed when a livery taxi cab went out of control, hopped a curb in the Bronx, and smashed into a storefront.

WHO: 61-year-old woman, Carmen Ahmed, died in the Bronx accident. Six others were injured.

WHERE: Accident occurred at Bainbridge Avenue and East Fordham Road intersection in the Bronx.

WHY & HOW: Driver lost control of his Lincoln Town Car, it jumped sidewalk, and struck a building, "Cee and Cee" department store. The taxi tore through a plate glass display window, and smashed into the woman, who was shopping inside.

The fatally injured woman was rushed to St. Barnabas Hospital in the Bronx; there she was pronounced dead.

Six other people suffered minor injuries in the crash: two other store shoppers, a store security guard, the driver, and his two passengers - a man and child sitting in the back seat of the taxi. All were taken to St. Barnabas and were in stable condition Thursday night.

The names of injured accident victims were withheld by authorities

No arrests are expected.

The accident is still under investigation.

Workers at the store said a similar accident happened at the same corner.

"This is the second time this happened in this store," said another employee. "It hit the pole outside, that's all."

Residents in that section of Fordham said the local traffic pattern is threatening, and that several intersections and a number of traffic lights can be dangerous for drivers.

"It's easy to get into a crash, especially this way when you're trying to turn and also there's a lot of holes here and your car could jump," said a local. "A lot of times my car jumped and I almost got into an accident."

"The car was about halfway across the intersection when everyone started screaming, 'Oh, my God! Oh, my God!' " said witness Juan Gonzalez Sanchez, 32.

"I turned and saw the car slam into the store."

The car pinned the legs of the woman, who had been using a walker, witnesses said.

"I was in the back room having lunch. I heard a noise and ran inside, and the lady was on the floor," said a shaken store employee.

"I ran to see what was happening, and everybody was trying to help the lady," she said.

"All I heard was a big boom and next thing you know, the cops and everyone else surround the area," said a store employee.

EIGHT THINGS YOU SHOULD KNOW ABOUT YOUR NEW YORK CAR ACCIDENT-PART ONE - THE FIRST FOUR QUESTIONS    (Posted by Bronx Car Accident Injury Lawyer Gary E. Rosenberg on June 1, 2010)

SUDDEN ACCELERATION OF S.U.V. AT BROOKLYN CHURCH KILLS ONE IN FATAL ACCIDENT; FOUR OTHERS INJURED AND TAKEN TO BROOKLYN HOSPITAL    (Posted by Bronx Car Accident Injury Lawyer Gary E. Rosenberg on March 8, 2010)

AFTER A CAR CRASH: CAN I HANDLE MY INJURY CLAIM MYSELF? (A FREQUENTLY ASKED QUESTION)      (Posted by Bronx Car Accident Injury Lawyer Gary E. Rosenberg on January 3, 2010 )

VAN KILLS WOMAN EATING IN ARBY'S    (Posted by Bronx Car Accident Injury Lawyer Gary E. Rosenberg on January 10, 2008)

TRUCK JUMPS CURB IN BROOKLYN, INJURING DRIVER AND TWO CHILDREN    (Posted by Bronx Car Accident Injury Lawyer Gary E. Rosenberg on December 23, 2007)

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 Car Accident Injury Attorney)

Manhattan case that was decided on March 29, 2011.

Acting without a lawyer or attorney, a crime victim (Robin Tooker) fought the system - New York State Crime Victims Board - and won.

On April 20, 2007, the injured Petitioner was struck by a bicyclist while she was walking in the crosswalk across a downtown Manhattan street. According to her account, "a guy on a delivery bike" hit her from behind, knocked her down and "left [her] lying in the middle of the street." As a result, she broke her wrist. Petitioner was taken by ambulance to St. Vincent's Hospital, where she remained for four days during which time she underwent surgery on her left wrist. Petitioner alleges that as a result of this injury she cannot use her wrist, has difficulty opening and closing her hand, and has lost the use of several fingers. She also states that she was unable to work at her profession as a photographer for "about a year."

In July 2008, Petitioner filed an application with the Crime Victim's Board, seeking compensation for over $20,000 in medical expenses she incurred as a result of her injuries.

On January 14, 2009 the Crime Victim's Board issued a decision denying her claim.

In a the Crime Victim's Board ruled that it may provide an award if there is evidence that "a crime was committed." It concluded, however, that the evidence provided indicates that what happened to the injured Petitioner "was an accident, not a crime."

In a letter to the Crime Victim's Board Petitioner appealed this decision.

On May 18, 2010, a three member panel of the CVB affirmed Mr. Mosiello's decision, providing no further explanation.　

Pursuant to Executive Law § 624(a), to be eligible for an award from the CVB, the claimant must be a victim of a crime. Both the terms "crime" and "victim" are defined in Executive Law § 621. A crime is "an act committed in New York state which would, if committed by a mentally competent criminally responsible adult ... constitute a crime as defined in and proscribed by law". A victim is "a person who suffers personal physical injury as a direct result of a crime".

The CVB argues that the petition should be dismissed as a matter of law because the CVB may only compensate victims of crime and that in the instant case no crime occurred. It relies on Vehicle and Traffic Law ("VTL") § 600, under which it is a crime for the driver of a "motorized vehicle" to leave the scene of an accident. The CVB, relying on § 125 of the VTL and related case law, argues that § 600 does not cover "hit and run" bicylists.

In reply, Petitioner submits an opposing affidavit, arguing that the CVB relies on the wrong subsection of the VTL. She argues that she was the victim of a crime under VTL § 1241, which makes "[l]eaving the scene of an incident involving a wheeled non-motorized means of conveyance," including bicycles, a Class B misdemeanor where a "serious physical injury" has resulted. A serious physical injury under this law includes "physical injury" which causes "protracted impairment of health or protracted loss or impairment of the function of any bodily organ." VTL § 1241 & Penal Law § 10(10).

Here, CVB's argument that Petitioner has no cognizable claim for compensation because being struck by a "hit and run" bicycle does not constitute a crime under VTL § 600 is unconvincing. As pro se Petitioner has rightly pointed out, in her situation, § 600 is not the relevant statutory provision. More pertinent to these proceedings is VTL § 1241, which provides that leaving the scene of an incident involving a bicycle which has resulted in a "serious physical injury" is a class B misdemeanor.

Petitioner has presented evidence, in the form of doctors' bills and an ambulance report, to support her contention that she suffered serious injuries as a result of her being hit by a bicyclist who then fled the scene. According to Petitioner these injuries have left her with limited use of her wrist, hand and fingers. Giving her "the benefit of every favorable inference" this court finds that she has at least made out a cognizable claim that she was a victim of a crime pursuant to VTL § 1241. Therefore, CVB's cross-motion to dismiss should be denied and Petitioner should be allowed to continue litigating her Article 78 claim.

In accordance with the foregoing, it is

ORDERED that Respondent's cross-motion to dismiss is denied; and it is further

ORDERED that Respondent has 20 days from service of notice of entry of this order in which to answer the Petition.

BICYCLE HELMETS PROTECT CHILDREN'S BRAINS IN CASE OF AN ACCIDENT      (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on February 28, 2011)

BICYCLIST PLOWS INTO PEDESTRIAN IN MANHATTAN'S CENTRAL PARK, AND KEEP GOING   (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on August 8, 2010)

CENTRAL PARK BIKE RIDER INJURED IN COLLISION ACCIDENT WITH BICYCLE RACER (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on June 29, 2010)

BROOKLYN BICYCLE ACCIDENT LAWYER'S TOP TEN THINGS THAT GO THROUGH YOUR MIND AS YOU HAVE A BICYCLE ACCIDENT     (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on April 29, 2010)

NEVER GIVE UP; NEVER STOP FIGHTING FOR JUSTICE FOR CLIENTS HURT BY THE NEGLIGENCE OF ANOTHER    (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on December 8, 2009)

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

On December 22, 2009, plaintiff (Gerardo Rodriguez) was a spectator watching batting practice at a New York City baseball field in the Bronx. A ball hit him in the eye while he stood at an open gate in a fence surrounding the baseball field.

He sued the City of New York and the City's Department of Parks and Recreation in the Bronx for his accident and injury.

The City made a motion for summary judgment, asking the court to throw out the case on paper, since the injured accident victim assumed the risk of being injured by watching the batting practice.

The Appellate Division tossed out the accident claim. It ruled that the plaintiff was aware that batting practice was taking place as he was standing at the open gate in an effort to call to his young son who was on the field.

Plaintiff tried to get his accident considered outside the "assumption of the risk" doctrine by claiming that a gate in the fence along the third base line did not lock or latch shut and that the City was negligent in not having a self-closing mechanism on the gate. No good.

Case dismissed.

ROLLERBLADER DID NOT ASSUME RISK OF SIDEWALK ACCIDENT   (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on April 13, 2011)

VICTIMS OF ACCIDENTS AND INJURIES WHILE PLAYING SPORTS OFTEN CAN'T SUE BECAUSE OF LEGAL PRINCIPLE KNOWN AS ASSUMPTION OF THE RISK    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on December 25, 2010)

BICYCLE HELMETS PROTECT CHILDREN'S BRAINS IN CASE OF AN ACCIDENT      (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 28, 2011)

DRIVER WHO OPEN DOOR AND FORCED BICYCLIST UNDER BUS CHARGED WITH FELONY "LEAVING THE SCENE"    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on January 31, 2011)

CAR HURTS TWO QUEENS CHILDREN PLAYING IN THEIR YARD    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on November 17, 2010)

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 Injury Lawyer)

INTERESTING New York State case decided March 17, 2011.

BACKGROUND: Residents of condominium apartment brought suit to have nearby cell phone tower adjudged common-law nuisance and removed from rooftop of building. Building owner and tenant moved to dismiss complaint.

FACTS:

1. Plaintiffs reside in Manhattan near a building with a cell tower on top.

2. The cell tower is on rooftop of a building owned by a realty company (defendant Amalithone Realty Inc.).

3. A union (defendant Amalgamated Lithographers of America, Local One) leases the building as its headquarters.

4. The building's rooftop was leased to a wireless carrier (AT & T), for the installation of a cell phone tower, consisting of wireless communication antennas and a cabinet to house other electronic equipment. It is unclear when the rooftop was leased or licensed or which of the two defendants actually signed the agreement with the wireless carrier (AT & T).

5. Plaintiffs' apartment is near the cell phone tower and wireless transmission antennas.

6. Plaintiffs began occupying their apartment in or about April 2007. Shortly after moving into the apartment, members of the plaintiffs' family began to experience headaches, nose-bleeds, fatigue, disturbed sleep, anxiety and other physical and mental ailments.

7. In 2008, plaintiffs hired an environmental assessments consultant to investigate the cause of their health problems.

8. A year later, in 2009, the family hired an electrical engineer to measure the radio frequency radiation inside the apartment.

9. Both consultants found high levels of radio frequency (RF) radiation inside plaintiffs' apartment. Plaintiffs ascribe the emissions to defendants based on the fact that the nearest cell transmission antennas to their apartment are located on the roof of defendants' building.

10. In their complaint plaintiffs alleged fourteen causes of action, including intentional private and negligent private nuisance, trespass, unlawful taking, misrepresentation and deceit, prima facie tort, strict liability, assault and battery, vicarious liability, and punitive damages. Plaintiffs contend that they are not seeking to have the court regulate RF emissions. Instead, plaintiffs seek an injunction removing the antennas and money damages for injuries resulting from defendants' decision to lease its rooftop for transmitter use. Plaintiffs also seek a declaratory judgment that the hazardous and unsafe operation of the cell antennas, licensed by the Federal Communications Commission (FCC), a federal agency, deprives them of substantive due process and their federal and state constitutional rights.

Defendants seek dismissal of the entire complaint.

DISCUSSION:

FAILURE TO SUE THE WIRELESS CARRIER, A "NECESSARY PARTY"

Plaintiffs did not sue the wireless carrier (A T & T) which would be inequitably affected by a

judgment in this action and therefore it is a necessary party. No principle is more deeply embedded in the common law than that, in an action to set aside a contract or a lease, all parties who may be affected by the determination are indispensable.

Significantly, the ultimate relief sought is removal of the antennas, a process to which only the wireless carrier can respond, regardless of defendants' presence in this proceeding. As the sponsor, owner of the subject cell tower and party to the contract with defendants, the wireless carrier clearly has an important interest in this litigation and will be adversely affected if the relief requested is granted. Those interests would not be adequately protected by the two defendants. The wireless carrier and the defendants are not united in interest, nor are they vicariously liable for the acts of the other.

One reason the complaint is dismissed is because of plaintiffs' failure to sue the wireless carrier.

Defendants are entitled to dismissal of the private nuisance claim as the operation of the cell phone tower is not unreasonable because it complies with all applicable laws and regulations.

A nuisance is a continuous or persistent condition that threatens the comfort and safety of neighboring tenants and which is likely to recur. A private nuisance requires a showing of an intentional and substantial interference with the right to use or enjoyment of land.

The law of private nuisance involves a balancing of interests. Persons who live in organized communities have to tolerate some damage, annoyance or inconvenience from each other.

In determining whether a defendant's use of property is a nuisance, the court must weigh the gravity of the harm to plaintiff against the utility and necessity for defendant's conduct.

Generally, when the use of a property is expressly authorized for the operation of a business or activity, and its operation is reasonable, no actionable per se nuisance is created.

In this case, plaintiffs failed to allege violation of any statute or regulation. Because the cell phone tower is operated under the FCC's regulation and the lawful permits issued to the wireless carrier under that authority, the operation of the cell phone tower in compliance with the applicable regulatory guidelines is not a private nuisance. Additionally, plaintiffs have failed to allege that defendants or the wireless carrier have been negligent in their activities or that their activities have been unreasonable or unnecessary. Further, plaintiffs have not sufficiently alleged that defendants' conduct is actionable under rules governing liability for abnormally dangerous conditions and activities.

Consequently, the defendants may not be held liable for an injury to plaintiffs in the absence of a showing that they knew about the existence of a hazardous condition or that they should have reasonably known that the RF emissions emanating from the cell tower constituted a danger.

Here, plaintiffs failed to satisfy any of the elements of private nuisance.

As to the other causes of action, plaintiffs allege that in permitting the wireless carrier (AT & T) to install the cell phone tower, defendants effected a taking of their property in violation of their constitutional rights. It is clear, however, that a property owner may only pursue a takings claim against a governmental entity. The defendants are not governmental entities. Accordingly, this claim must also be dismissed.

Here, defendants are in compliance with all the applicable standards for RF emissions as established by the FCC. Therefore, plaintiffs' allegations are insufficient to establish a trespass claim.

Liability may be imposed for the intentional infliction of emotional distress "only where the conduct 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. The facts as alleged in the complaint fail to rise to the level of outrageous conduct required to support a cause of action for intentional infliction of emotional distress.

Assault is defined as an intentional attempt or threat to do injury or commit a battery. To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact. A battery is intentional and wrongful physical contact with a person without his or her consent. No deliberate act was taken by defendants to make contact with plaintiffs' person or property. Again, plaintiffs' failure to assert intent is dispositive of their claims for assault and battery.

Because the complaint fails to state a claim for relief, defendants' motion to dismiss the complaint in its entirety is granted.

PARTY BROKEN UP BY SHOWER OF BROKEN GLASS    (Posted by Gary E. Rosenberg on February 28, 2010)

OF MOTORCYCLES, TRAUMATIC BRAIN INJURY, NATASHA RICHARDSON, AND MY YOUNGER BROTHER   (Posted by Gary E. Rosenberg on March 28, 2009)

TRAIN STRIKES CAR STUCK ON TRACKS; DRIVER BLAMES GPS SYSTEM    (Posted by Gary E. Rosenberg on January 4, 2008)

SPECIAL PAINT INTENDED TO CUT ELECTROCUTION RISK       (Posted by Gary E. Rosenberg on December 24, 2007)

LANCE ARMSTRONG FOUNDATION SUES OKLAHOMA PET COLLAR COMPANY    (Posted by Gary E. Rosenberg on November 28, 2007)

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

Interesting case out of New York State's Appellate Division this March, 2011.

Plaintiff C., an adult, had an accident while rollerblading on the sidewalk by a New York City public housing project. The rollerblades got stuck in a defect in a sidewalk in the Bronx. Causing her to fall. In this new case, C. skated around some people standing on the sidewalk. Her wheels got stuck in a raised portion of the sidewalk and she fell, ultimately needing surgery.

She brought a lawsuit for personal injury against the City of New York and the New York City Housing Authority.

The appeals court had to decide if she had "assumed the risk" of rollerblading so as to not be allowed to sue for her accident and personal injury.

I recently blogged about the legal principle of "assumption of the risk." You may recall that the rule is if you play a sport or watch a sporting event, you are considered to accept some of the risk of the game. This means that if you get hurt, "assumption of the risk" means you can not sue for the accident or your injuries. This can mean getting hurt playing football, or getting hit in the face with a tennis ball, or even struck with a foul ball at a baseball game.

My recent blog also discussed Anand, a case from New York's highest court, the Court of Appeals, which dismissed (threw out) a doctor's lawsuit against a golfing partner brought after and accident where he got hit in the eye by a golf ball. The court ruled in Anand that the accident was not the result of gross (or unusually great) negligence so as to permit the injured doctor to sue despite the assumption of the risk accident rule. In effect, the Court held that by playing golf the injured physician assumed the risk that a golf ball might accidentally blind him in one eye.

In another recent Court of Appeals case, Trupia, the court limited assumption of the risk outside of recreational and sporting activities. In Trupia a child had an accident; he was injured sliding down a stairway bannister in his school. He sued claiming that the school did not properly supervise him, a 12 year-old child. In its analysis, the Court of Appeals dragged out another legal rule, called "comparative negligence."

Under a comparative negligence approach, the amount of damages for an accident-related injury claim is reduced by on the percentage that the plaintiff is negligent. That means when there is an accident, the percent of fault is divided up, like cutting a pie, until the pieces equal 100%. This assignment of blame is something done by a jury at trial. So the injured accident victim can be found to be 50% at fault and the defendant 50% at fault, or 60%-40% or 25%-75% and so forth. If the hurt plaintiff is suing more than one party than the fault can be divided up three ways, or as many ways as there are defendants to place blame on. One more thing, if the accident victim is found to be 100% at fault, he or she loses.

The Court of Appeals made clear that the assumption of risk doctrine has little place in a comparative negligence framework. And in New York we have, for accident cases, a comparative negligence rule.

Thus, the Court of Appeals acknowledged that automatic application of assumption of risk to every accident that occurs during a sporting activity was not correct. The Court limited application of the doctrine primarily to protect sponsors of athletic and recreational activities from liability for accidents that arose from such activities. The Court of Appeals afforded this protection as a policy matter because of the "enormous social value" that athletic and recreational activities impart, "even while they involve significantly heightened risks"

Although in our case plaintiff C. was rollerblading, an activity one could consider to be recreational and risky, this is not a case like Anand where plaintiff and defendant were participants in golf - an organized sporting event. Plaintiff's leisurely rollerblading on a public sidewalk does not constitute a sponsored sporting event or recreational activity for the purpose of applying the assumption of risk doctrine to her accident any more than jogging on the sidewalk would. We simply cannot say, as a matter of law, that by engaging in a form of exercise, such as rollerblading or jogging on a public sidewalk, a plaintiff consents to the negligent maintenance of that sidewalk.

BICYCLE FRONT FORKS RECALLED; PART CAN FAIL, LEADING TO ACCIDENT AND INJURY     (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on April 9, 2010)

CHILDREN'S HOCKEY STICKS RECALL; DANGER OF LEAD POISONING    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on April 2, 2010)

BAREFOOT IN THE (N.Y.C.) PARK; KIDS GETTING BURNED    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on July 21, 2008)

WOBBLY FACTS GET JELLO CASE DISMISSED    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on January 29, 2008)

ESCALATOR MALFUNCTIONS AT GIANTS STADIUM    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on December 30, 2007)

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

A Brooklyn man was booked on DWI and manslaughter charges Saturday on April 9, 2011. He smashed up a car in a drunk driving accident on the Belt Parkway near Brooklyn's Flatbush Ave. at Marine Park, killing his girlfriend, the mother of one of his children.

Kareem DuPass, 34, lost control of the speeding 1996 Ford Explorer in the accident, where it hit a guardrail and flipped on its roof at about 5 AM, officials said.

His longtime girlfriend, Amanda Marty, 30, was sitting in the front seat when the vehicle rolled over, cops said.

DuPass' brother, Jason, 21, was in the backseat at the time of the accident with an unnamed 33-year-old man.

One of the men, his face bloodied, was lying in front of the crumpled SUV when emergency workers responded, a source said. Nearby was a wheel torn from the vehicle's rear axle.

The victims were taken to Brooklyn's Brookdale University Hospital, where Marty died. Jason DuPass was still in a coma from injuries suffered in the accident.

Marty and DuPass lived together in Bushwick, Brooklyn, with two children - Kareem, 16, who is DuPass' son, and Terrell, 12, the couple's son.

Marty's heartbroken mother said the couple dropped Terrell off at her house before they went out for the night, which was rare.

"She was very special to me - my pride and joy, my only child," Luzmaria (Maria) Surita, 62, told the Daily News. "I really, really deeply miss her."

Marty, a census worker, had just enrolled in York College to study nursing, friends and family said.

Hours after the deadly accident and wreck, DuPass - a construction worker - was hit with a litany of charges that include manslaughter, criminally negligent homicide, DWI, reckless driving and speeding. Dupass, who cops said was charged with DWI in 2007, suffered minor injuries in the Brooklyn accident.

"She was a beautiful person," Surita said of her daughter. "I'm going to miss her a lot."

But Surita said she's not angry at DuPass, who she said didn't have a reputation for drinking hard.

"I'm not mad at him," she said.

RELATED POSTS:

NEW YORK CITY DRUNK DRIVING ARRESTS HIGHEST IN QUEENS 'HOOD    (Posted by Brooklyn Car Accident Injury Lawyer Gary E. Rosenberg on June 15, 2010)

HUSBAND JUMPS ON HOOD OF TRUCK TO PREVENT WIFE DRIVING DRUNK, IS HURT IN ACCIDENT WHEN SHE DRIVES OFF ANYWAY    (Posted by Brooklyn Car Accident Injury Lawyer Gary E. Rosenberg on May 10, 2010)

QUEENS DRUNK DRIVING ACCIDENT KILLS SECURITY GUARD    (Posted by Brooklyn Car Accident Injury Lawyer Gary E. Rosenberg on April 16, 2010)

STONED AND DRUNK? JUST DRUNK? OR STRUNK?    (Posted by Brooklyn Car Accident Injury Lawyer Gary E. Rosenberg on February 20, 2008)

DRUNK-DRIVING WALL STREET MOGUL MOWS DOWN 9/11 SURVIVOR     (Posted by Brooklyn Car Accident Injury Lawyer Gary E. Rosenberg on January 26, 2008)

QUEENS COUNTY COMMUNITIES

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; Queens Car Accident Injury Attorney)

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission (CPSC) is urging consumers to stop participating in a new type of water-related recreational activity, due to the potential risks of accidents leading to suffocation and drowning. The activity is called water walking and the water walking ball has numerous brand or ride names.

The fact that the product has no emergency exit and can be opened only by a person outside of the ball significantly heightens the risk of accident and injury or death when a person inside the ball experiences distress. Pre-existing medical conditions, such as heart, lung, or breathing issues, can be made worse by use of this product.

An individual climbs into the large, see-through plastic ball; it is inflated with a blower through the zipper opening; and the zipper is closed, making the ball air-tight. The ball, with the person locked inside, then rolls around on a number of surfaces, including water, ice, or grass. The product is most commonly used by children and is used mainly as a ride in amusement parks, carnivals, malls, sporting events and other high-traffic areas. The product is also sold directly to the public for personal use.

Several states have banned or refused to provide permits for rides that use this product. CPSC is aware of two incidents involving this product. In one incident, a child was found unresponsive after being inside the ball for a very brief period of time, and emergency medical treatment was sought. In the second incident, a person inside of a ball suffered a fracture when the ball fell out of the shallow, above-ground pool onto the hard ground.

CPSC is warning consumers that there is a combination of accident risks associated with this product, including the potential for suffocation, as well as the potential for drowning and impact injuries. Because the ball is airtight, an inadequate air supply can result when oxygen is depleted and carbon dioxide accumulates inside the ball. Such a dangerous scenario can occur in as little as a few minutes. Because the water walking balls have no padding, accident and impact injuries can occur if the balls collide with each other, or fall out of the pool onto concrete or other hard surfaces, such as ice or tile. These water walking balls are also being used on open water, creating the potential for injuries if the ball is struck by a boat or strikes a solid object, such as a buoy or pier. Additionally, the balls present a high risk of drowning if there is a leak or a puncture.

CPSC has informed state amusement ride officials of the risks associated with this product and encourages state officials not to permit this ride in their state. CPSC does not know of any safe way to use this product.

Risks associated with the use of water walking balls, a new type of water-related recreational activity,
include the potential for accidental suffocation, drowning, and impact injuries.

---

CPSC is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product. Please tell us about it by visiting www.saferproducts.gov.

The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of accident, injury or death from thousands of types of consumer products under the agency's jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard. The CPSC's work to ensure the safety of consumer products - such as toys, cribs, power tools, cigarette lighters, and household chemicals - contributed significantly to the decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

DRIVER OF CAR THAT PLUNGED OFF PIER IN L.I. ACCIDENT DIES    (Posted by Queens Car Accident Injury Attorney Gary E. Rosenberg on January 13, 2008)

CAR LEAVES PIER IN BAY SHORE ACCIDENT: ONE INJURED, ONE DEAD    (Posted by Queens Car Accident Injury Attorney Gary E. Rosenberg on January 8, 2008)

A PARTICULARLY HORRIBLE WAY TO DROWN   (Posted by Queens Car Accident Injury Attorney Gary E. Rosenberg on March 1, 2010)

ELEVEN YEAR-OLD DROWNS IN FRIEND'S POOL IN LONG ISLAND    (Posted by Queens Car Accident Injury Attorney Gary E. Rosenberg on June 18, 2010)

FATAL ACCIDENT; STATEN ISLAND BROTHERS' CAR SKIDS INTO POND   (Posted by Queens Car Accident Injury Attorney Gary E. Rosenberg on January 9, 2011)

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

Man arrested after 2 cops injured in Bronx crash

Arrested for a drunk driving accident on Friday, April 8, 2011, at just after midnight, was one Mike Diaz, of Connecticut, age unknown.

Diaz was charged with aggravated DWI and vehicular assault.

Diaz was barreling in a northerly direction in his Dodge Neon on Claremont Avenue near Fulton, in the Bronx. He crossed a double-yellow line and smacked head-on into a marked police cruiser.

In the accident, the left front hood of the police car was mashed and the Dodge's roof was torn I the collision.

Taken to St. Barnabas Hospital in the Bronx, the cops are expected to make full recoveries.

Diaz his four passengers were hospitalized and are expected to recover.

RELATED POSTS:

TWO OFF-DUTY COPS KILLED, FOUR WOMEN INJURED, IN ALCOHOL-RELATED BRONX ONE-CAR ACCIDENT      (Posted by Queens Car Accident Injury Lawyer Gary E. Rosenberg on May 17, 2010)

QUEENS DRUNK DRIVING ACCIDENT KILLS SECURITY GUARD     (Posted by Queens Car Accident Injury Lawyer Gary E. Rosenberg on April 16, 2010)

DRUNK OFF-DUTY COP FLIPS CAR INTO TIFFANY'S      (Posted by Queens Car Accident Injury Lawyer Gary E. Rosenberg on February 14, 2010)

PERSONAL INJURY ATTORNEY - TAKE ACTION NOW AND FEEL BETTER     (Posted by Queens Car Accident Injury Lawyer Gary E. Rosenberg on December 13, 2009)

OFF-DUTY COP BLASTED BY GARBAGE TRUCK    (Posted by Queens Car Accident Injury Lawyer Gary E. Rosenberg on March 1, 2008)

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; Queens Car Accident Injury Attorney)

Culinary student Adrian Rodriguez, age 18, was struck in the head and killed by a subway train at New York City's Union Square Station on Friday morning, April 1, 2011.

A southbound "5" train killed the future chef, who lived in the Bronx.

Witnesses said the teen appeared pale as he walked along the Union Square Station platform just before 8 a.m. He was clipped by the southbound train as he fainted or fell.

He died from head trauma in New York City's Bellevue Hospital on Saturday, April 2, 2011.

Rodriguez was a student at Marta Valle High School in Manhattan's lower East Side, where he was highly regarded by students and teachers alike.

"It's going to be hard for kids at school to deal with this," said his friend Laura Cuautle, 17. "He used to help everyone out in class because he was so good at cooking ... he was one of the most generous people."

"Adrian will be greatly missed. He touched a lot of people's hearts," said Kwame Onwuachi, who was a mentor to the hardworking 18-year-old. "He had everything going for him. He was following his dreams."

Onwuachi hired Rodriguez as an intern at his catering business last year and said the student secured an internship at top chef Tom Colicchio's posh downtown restaurant Craft. He won the Careers through Culinary Arts Program junior competition last year and was vying for a scholarship to the coveted Culinary Institute of America.

The medical examiner's office said an autopsy will take place.

Rodriguez lived with his mother and grandmother. Neighbors never saw the teen without his backpack filled with cookbooks and cooking utensils.

"He had his future ahead of him," said Adrian Garcia, 37. "He was going to be a great chef."

A Web site affiliated with the school indicated that Mr. Rodriguez was an aspiring chef and included pictures of him baking cakes with fellow students and accepting an award.

The authorities said it was unclear what precisely caused him to fall on the platform on Friday.

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

Fatal pedestrian knockdown accident on Thursday, March 31, 2011. Caroline Tunage, age 56, of Brooklyn, New York was crossing Columbia Street at its intersection with Summit Street.

A company van owned by Dirusso Electrical Contracting struck and killed her as she crossed the street at about 7:30 P.M.

A Brooklyn woman was fatally struck by a commercial van yesterday as she was crossing a notoriously dangerous intersection during her morning walk to work.

Police report that the van's driver of the van was distraught after striking down the woman.

Tunage was taken to Long Island College Hospital, where she was pronounced dead on arrival.

Coworkers and others who knew the deceased woman say that she loved wlaking the streets of Brooklyn. She particularly enjoyed getting off the New York City subway befoer her stop and strolling to her job at Time Moving & Storage, where she had been employed for some nine years as a receptionist.

She reportedly had strong relationships with three sisters, and an adult daughter, who attends New York's Fashion Institute of Technology.

She also never gave up on a dream to become a dancer -- a dream that motivated her many years ago to move to New York from Maryland.

Tunage was a "creative" employee and beloved by co-workers for drawing them holiday pictures, according to the owner of the company she worked for.

"It was a terrible shock. I just spoke to her last night," said Tunage's mother, Sarah. "She was only a few blocks away from work when it happened . . . We will all miss her tremendously."

No charges were brought against the van's driver, who had been turning from Summit Street.

Calls to the van's owner, Dirusso Electrical Contracting, were not returned.

According to a local school crossing guard, the intersection where the death occurred is accident prone. "They need some traffic lights here," said the crossing guard. "I've witnessed maybe 10 near-misses. Sometimes the trucks ignore the stop signs."

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PEDESTRIAN, AGE 76, STRUCK AND KILLED BY NEW YORK CITY CORRECTIONS DEPARTMENT VEHICLE WHILE CROSSING QUEENS BOULEVARD    (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on August 7, 2010)

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

This is interesting Dear Readers, so please follow along.

SOME BACKGROUND. The general rule in New York insurance law (and just about everywhere) is that there is no insurance coverage available for acts done on purpose that may injure you or others, know as "intentional acts." For example, if I assault you - say I punch you in the eye and injure you - you can sue me for assault and battery, but my insurance will not pay for my lawyer or for any damages that you may be awarded against me. But, if I accidentally trip you, or lose control of my car, and break your arm you, that would be considered an accident that insurance would cover; assuming that I've purchased the correct type of insurance.

New York State highest court, the Court of Appeals, just issued a decision on March 29, 2011 pertaining to car accidents, entitled State Farm Mutual Automobile Ins. Co. v. Langan.

This is a biggie because it sort of undermines a long-standing policy in New York which has been bad for injured consumers.

SOME MORE BACKGROUND. There are bad people staging phony car accidents. It's more common than it should be. Fill a car with friends and smash another car. Sometimes smash a car first and then fill the car with friends. Sometimes the other car is in on the scam, sometimes it's just an innocent victim's vehicle.

I had a case like this once. My client was alone in her car by the Van Wyck Expressway in Jamaica, Queens and another (scamming) car hit her. The other car had been in several accidents and the man driving it had no real connection to the owner of the car.

The bad guys all went to doctors to make fake medical claims, usually for neck and back injuries; yes, the doctors were in on it. See my Free Special Report on "Dirty (Crooked) Doctors."

Then they hired lawyers to try to recover money damages and the lawyers were only too happy to collect the medical reports and test results and send them to an insurance company to try to squeeze out a settlement. See my Free Special Report on "What to Do When Disaster Strikes (You've Had an Accident; Now Watch out for Scams)."

Ultimately none of the insurance companies would pay any money because this Queens County accident was a "staged" accident; even though it was only staged by the other car and my client wasn't involved. No accident, no payment.

Perhaps you can see the unfairness in this policy. My client buys insurance for her car to protect her. Another car hits her. Not my client's fault, she wasn't part of the scam. So from my client's viewpoint this was still an accident. And she should have been able to access her car's No-Fault insurance. See my Free Special Report on "The New York "No-Fault" Law".

Also, her automobile insurance policy contained "uninsured motorist" coverage. She should have been able to recover against this coverage because the other car refused to pay her for her damages after that car's insurance company "disclaimed," making that car in effect "uninsured." But my client was left without a legal remedy to pay for her medical bills or to give her money damages for her pain and suffering.

State Farm Mutual Automobile Ins. Co. v. Langan. Today's blog topic makes an exception to that harsh rule.

THE FACTS. On February 12, 2002 Ronald Popadich deliberately drove his car into a cluster of pedestrians. Accident victim Neil Conrad Spicehandler fractured his leg and later died from complications of the surgery. Popadich pleaded guilty to second degree murder and admitted that he intended to cause Spicehandler's death. This is a classic example of a not-an-accident case. Spicehandler's to State Farm for insurance benefits, under a policy that had nothing to do with the Popadich vehicle, but that covered Spicehandler separately, even as a pedestrian.

State Farm refused to pay because Popadich's action was intentional and not an accident and so there should be no coverage. The case came to New York's Court of Appeals for the issue of whether Spicehandler's injuries were caused by an accident within the meaning of State Farm's insurance policy.

LEGAL ANALYSIS. The Court showed some sympathy and pointed out that "the insured is the victim in this case...". In deciding against State Farm the Court did some fancy dancing. First, it side-stepped a 45+ year-old case that went the other way, McCarthy v. Motor Veh. Acc. Indem. Corp., finding some differences between that case and Mr. Spicehandler's situation, that are not worth examining in detail right now. Second, the Court noted a national trend in the same direction that it was heading, "towards allowing innocent insureds to recover uninsured motorist benefits through their own policies when they have been injured through the intentional conduct of another. The Court then cited cases from he States of Iowa, New Jersey and Montana.

HOLDING. " We hold that, consistent with the reasonable expectation of the insured under the policy and the stated purpose of the UM endorsement (to provide coverage against damage caused by uninsured motorists), the intentional assault of an innocent insured is an accident within the meaning of his or her own policy. The occurrence at issue was clearly an accident from the insured's point of view and Langan [Spiccehandler] is entitled to benefits under the UM endorsement."

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