Case: In the Matter of Marshall Posner, an attorney and counselor-at-law

Court: Supreme Court, Appellate Division, First Department, New York.

Decided: May 24, 2011

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

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Marshall Posner, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on April 13, 1983.

Respondent Marshall Posner was admitted to the practice of law in the State of New York by the Second Judicial Department on April 13, 1983. At all times relevant to this proceeding, respondent has maintained a law office within the First Judicial Department.

On August 4, 2009, the Departmental Disciplinary Committee filed 14 formal charges against respondent because of several actions that took place in May and June of 2006. In a report dated January 22, 2010, a Referee sustained 13 of the charges and recommended a one-year suspension. A Hearing Panel heard oral argument, and in a report dated April 19, 2010, modified the sanction recommendation to an 18-month suspension. The Departmental Disciplinary Committee now moves to confirm the Hearing Panel's determination and seeks a suspension of no less than 18-months. Respondent cross moves urging a public censure. We find a one-year suspension to be appropriate.

The 14 charges against the attorney misappropriation of funds, conversion of funds and forgery, failing to preserve documents, conduct prejudicial to the administration of justice, conduct adversely reflecting on his fitness as an attorney. Of these, 13 were sustained by the Referee who heard the matter.

The three matters that formed the basis of the charges against the lawyer are described below.

The lawyer made three withdrawals from his firm's escrow bank accounts totaling almost $18,000 which represented the firm's legal fees in three accident cases. When he made those withdrawals, the settlement funds had not yet been deposited into his escrow bank account, although all of the deposits were made within one to two weeks. However, the escrow funds belonged to other clients at the time the withdrawals were made. The Referee found that the attorney misappropriated funds, but not intentionally, failed to preserve his files for seven years as required, and failed to file closing statements with OCA.

Second, the lawyer forged the signature and then notarized the forged signature of a client, with whom he had lost contact, on two releases that were filed with the court in order to obtain a settlement in a personal injury case. The attorney then endorsed two settlement checks with the client's signature and deposited them into his lawyer escrow bank account. He also drafted stipulations of discontinuance by which he falsely represented to the opposing attorneys that the case had been settled with the permission of his client.

The client in the above matter had not responded to numerous letters and telephone calls for a period of two years during which time he had been ordered to attend a deposition. Although the client had not been cooperative or even available, two defendants made substantial offers, one of which was specifically time limited. The client had previously indicated a willingness to accept a sum that was less than that offered ($119,000). However, when he resurfaced some six months later, the client decided that the settlement was not adequate. He refused the amount, not understanding that the matter had been settled. The Referee found that the attorney attempted to "settle" the matter with his client after the client filed the disciplinary complaint against him to be an aggravating factor, but we find the record to be unclear in this regard. However, there is no issue that the forgeries violated lawyer disciplinary rules.

The third matter which the Referee sustained a charge for involved failure to provide a client with a written letter of engagement.

The lawyer urges, in mitigation, that he had an otherwise unblemished 27-year career, and that the two major transgressions occurred within a six-week to two-month period during which time his 16-year-old law partnership was breaking up and he was dealing with his mother's terminal illness. Consistent with the Referee's findings, we find the lawyer's were not solely motivated by self interest. Personal distractions and concern for his client played a role.

Comment: Lawyer got away light for forgeries which, I believe, were also criminal violations.

Case: Lomonico v. Massapequa Public Schools

Court: Supreme Court, Appellate Division, Second Department, New York.

Date: May 17, 2011

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

Facts: Plaintiff - a high school cheerleader - was hurt when a teammate fell on her during cheerleading practice while trying to perform the "liberty" stunt.

Held: Lower court's denial of summary judgment to defendant reversed and summary judgment granted to defendant and against injured accident victim/plaintiff (on this appeal).

Comment: Another, another, another "assumption of the risk" case throwing out an accident victim's claim for injury sustained during a sporting activity.

Plaintiff sues for injuries she suffered during a cheerleading accident. She claims that her school

was negligent in failing to instruct and supervise the cheerleaders properly in performing the stunt and in failing to provide protective floor mats.

The appeals court finds that our plaintiff - can you guess? - assumed the risk of the cheerleading activity by participating in the sport..

The appeals court notes that "assumption of the risk" doesn't block every injury claim from every student/participant in a sport: "Even where the risk of injury is assumed, however, a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from 'unassumed, concealed, or unreasonably increased risks'."

But the defense successfully argued that the accident victim was an experienced cheerleader and knew the risks involved in the stunt that she was attempting when injured. The school also showed that there was no lack of supervision and, also, the accident victim assumed the obvious risk of injury from practicing on a bare gym floor.

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

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

Case: Melnik-Mirzakhan v. Michael Tavdy

Court: Supreme Court, Appellate Division, Second Department, New York.

Date: May 17, 2011

Comment: Sometimes I see dumb cases that make me angry. Why? Because bringing claims that lack merit for victims of accident or medical malpractice make all plaintiff's injury lawyers and attorneys look bad. This is one of those cases.

Decision: Medical malpractice plaintiff appeals from an order which granted the defendant doctors' motion for summary judgment dismissing the medical malpractice complaint. The order granting summary judgment dismissing the medical malpractice complaint is affirmed by the appeals court.

On August 11, 2006, the decedent died of colon cancer. The plaintiff's father, the decedent/medical claimant malpractice, was a patient of the defendant, a doctor specializing in internal medicine, who was a member of the defendant medical group, based in Brooklyn.

Shortly before his death, the decedent had commenced this action against the defendants to recover damages for medical malpractice. After his death, the plaintiff was substituted in his place.

The complaint alleged that between January 2004 and February 2006, the defendants failed to adequately refer the decedent for colon cancer screening tests, which resulted in their failure to diagnose him with cancer and his ultimate death.

The defendants claimed that they had on several occasions advised the deceased so-called medical malpractice victim thathe undergo colon cancer screening tests and gastrointestinal consultations.

The deceased refused the tests and specialist consultation.

In their summary judgment motion, defendants claimed that if they debated from good medical practice, any alleged departure on their part did not cause the decedent's injury and death.

In opposition, the plaintiff contended that the decedent's mental state was such that the defendants should have told his family about his refusal to undergo colon cancer screening tests and that, in any event, the defendants should have performed the less-invasive stool occult blood test.

The appeals Court rules:

The defendants met their initial burden of showing the absence of any departure from good and accepted medical practice. In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the lower court properly granted the defendants' motion for summary judgment dismissing the complaint. We affirm.

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

Case: Chang v. Adams Fairacre Farms, Inc.

Court: Supreme Court, Appellate Division, Second Department, New York.

Date: May 17, 2011

Holding:  Defendant granted summary judgment dismissing the plaintiff/accident victim's complaint.

Comment: For more than 25 years I've seen supermarket slip/trip and fall cases lose when the accident victim can't show "notice." This means the store either knew about the dangerous or slippery condition or should have known about it, and it existed long enough for the store to clean up. This rule is carved in stone, no matter how bad the plaintiff is injured. If the person hurt in an accident can't say or get a witness that can say how long this condition existed or worse, doesn't know what he or she slipped on, the case must lose.

The injured plaintiff) claims that while inside the defendant's supermarket when she slipped and fell on a single green bean on the floor in the produce section.

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Defendant showed no "actual notice," because it did not create the complained-of condition and no one complained about it before the accident.

The defendant also showed no "constructive notice" of the green bean on the floor, because the alleged condition was not present for a sufficient period of time for it to have discovered and corrected it.

In opposition, the accident victim failed to make out a "triable issue of fact" as to whether the defendant created the complained-of condition, or had actual or constructive notice thereof.

The accident victim failed to show that the defendant had actual notice of a recurring hazardous condition such that it could be charged with constructive notice of the condition which caused the injured plaintiff to fall.

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

COURT:  Supreme Court, Appellate Division, First Department, New York.

CASE:  Massey v. Newburgh W. Realty, Inc.

DATE:  May 17, 2011

HOLDING:  Defendant loses motion for summary judgment against accident victim.

MAJORITY OPINION:    Injured accident victim claims to have slipped and fallen on a sheet of ice on the sidewalk in front of defendant's building, a convenience store in Newburgh, New York. She claims it was not raining or snowing so that there was no "storm in progress."

Plaintiff testified that she felt something slippery under both her feet, that her right foot slipped out from under her; when she looked she saw ice on the ground.

At her oral deposition, plaintiff/accident victim identified the general location of the accident using a black-and-white facsimile image of a photograph of the accident location.

The defense asked the court for summary judgment dismissing the lawsuit against it. The defense had hired an expert meteorologist or weatherman, who gave an affidavit to the court.

The meteorologist swore that there was no rain or snow for one week before the accident, and that for the two days before the accident the temperature had been n the 50s or 60s - so there could not have been ice.

Plaintiff opposed the motion for summary judgment, contending that the affidavit of defendant's expert meteorologist was speculative insofar as it did not take into account the relevant testimonial and photographic evidence in the case in concluding that there was no snow or ice on the ground.

Plaintiff asserted, in any event, that she had raised a triable issue of fact. Plaintiff relied on her deposition testimony and affidavit submitted in opposition to the motion, in which she averred that the ice she had slipped on was "hard, dry and approximately one inch thick."

Plaintiff relied, in addition, on certified meteorological records which indicated that in the 14 days prior to and including the date of her accident, the temperature fell below freezing on each and every day.

The appeals court noted: "Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident."

"Defendant's expert opinion was arguably speculative insofar as it failed to take into account plaintiff's testimony concerning the nature of the ice, nor did it address plaintiff's photograph showing ice at the accident location."

"Further, as noted by the motion court, defendant did not satisfy its burden of establishing lack of constructive notice as a matter of law since it failed to submit an affidavit, deposition testimony or other competent evidence from a store employee establishing that any employees regularly inspected the sidewalk."

"In this case, unlike storm-in-progress cases, we are not presented with the difficulty of determining whether a fall was attributable to old ice, as opposed to freshly accumulating snow."

"The dissent asserts that plaintiff failed to establish the origin of the ice patch on which she slipped. However, it may reasonably be inferred from plaintiff's description of the ice, the photo, and the climatological data showing freezing temperatures that the ice was attributable to a prior winter storm. We accordingly find, at this stage, that plaintiff has sufficiently raised a triable issue of fact."

DISSENTING OPINION:   Because I believe that defendant established prima facie entitlement to summary judgment and that plaintiff failed to raise a triable issue of fact on the issue of notice, defendant is entitled to summary judgment, and therefore I dissent.

Plaintiff did not see the ice before her fall, but based on post-fall observations described the patch as large and spanning several feet. She had no idea when it had last snowed and saw no other ice or snow prior to her fall.

Defendant's meteorologist concluded that on March 14 at 9:30 P.M., there was no ice or snow on the ground at the location of this accident.

In opposition to defendant's motion, plaintiff submitted an affidavit, wherein she stated that a photograph annexed thereto was a fair and accurate representation of the patch of ice upon which she fell, and that the ice was hard, dry, and an inch thick. Plaintiff also submitted an affidavit from her boyfriend, wherein he states that he took the photograph. He likewise stated it was a fair and accurate representation of the patch of ice upon which plaintiff fell, describing in the same was as plaintiff. Lastly, plaintiff submitted climatological records evincing that in the days prior to her fall the temperatures had dipped below freezing.

The mere presence of an ice patch, by itself, does not cast a defendant in negligence thereby making him or her liable for an accident. Instead, to establish liability for an icy condition, it must be proven that a defendant had either actual or constructive notice of the icy condition

Here, contrary to the motion court's decision and the assertions by the majority, defendant established prima facie entitlement to summary judgment. Defendant's meteorologist, based upon his review of pertinent climatological records, also submitted with defendant's motion, opined that given the weather conditions existing at the time of plaintiff's accident and in the seven days preceding it, there was no ice existing on the sidewalk where plaintiff alleges to have fallen. By establishing the absence of any ice at this location for at least two days prior to plaintiff's fall, defendant not only controverts the existence of any ice, but as relevant here, negates actual and constructive notice and thus establishes prima facie entitlement to summary judgment.

That the meteorologist did not review and comment on some of the evidence offered by the plaintiff, namely her testimony and a photograph of the condition does not alter my holding because his opinion is undergirded by the aforementioned climatological reports.

Plaintiff, in a final attempt at establishing constructive notice seeks to link the icy condition to a prior storm or a period of prior precipitation. While this is of course one way to establish the origin of an icy condition thereby establishing constructive notice, plaintiff fails to meet her burden since the evidence tendered must in fact link the condition to a prior storm. Here, plaintiff simply submits climatological records and merely asserts that dips in the temperature, to below freezing, confirm the patch's existence. There is no specific attempt, by an expert or anyone else for that matter, to particularize the weather pattern from which it can be inferred that the ice upon which plaintiff fell originated from prior precipitation or a previous storm.

Accordingly, I believe that plaintiff fails to raise an issue of fact sufficient to preclude summary judgment in defendant's favor.

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

Supreme Court, Appellate Division, Second Department, New York.

Case: Merriman v. Intergrated Building Controls, Inc.

Date: May 10, 2011.

Comment: This is a New York State Labor Law case, involving a construction worker's accident and fall from a ladder. Defendants and plaintiff each brought a summary judgment motion to try to win on paper before a judge, and without having to go to a jury. Plaintiff, the accident victim, wanted to win on the issue of liability. Defendants wanted the plaintiff (accident victim's) case thrown out.

The defense claims it should win because the injured plaintiff was the "sole proximate cause" of his own accident. If this is the case, then the accident is all his own fault. The lower court (Queens County) denied this argument and the appeals court agreed:

The accident victim/plaintiff thinks he should win because of a defective ladder. If this is so, his case should prevail on paper, without even the necessity of a jury trial on the issue of liability.

The lower court agreed with the plaintiff's argument and granted him summary judgment. The appeals court disagreed, pointing out that the accident victim went to a doctor (neurologist) six weeks after his accident and the doctor prepared a report of the examination. The doctor wrote that the injured accident victim (his patient) gave an accident history that, while descending the ladder on which he had been working, the plaintiff "missed a step." If this is true, than the defense should win.

The injured plaintiff disagreed with this statement and denied saying it. However, according to the appeals court, he was equivocal (wishy-washy) at his oral deposition about the possibility that he did, in fact, miss a step while coming down the ladder.

And even though the neurologist's report is technically hearsay, "proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment, particularly when the inadmissible evidence does not provide the sole basis for the denial of summary judgment."

The court can't decide who to believe so nobody wins on paper, and this matter must go a jury for resolution at a trial.

"OPEN AND OBVIOUS" ARGUMENT DOESN'T WIN SUMMARY JUDGMENT IN CASE WHERE ACCIDENT ON STEP    (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on May 19, 2011)

"SERIOUS INJURY" THRESHOLD MOTION NICELY DEFEATED IN CAR ACCIDENT CASE (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 28, 2011)

YOUR CASE CAN BE LOST IF YOUR ACCIDENT LAWYER ISN'T COMPUTER LITERATE (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on March 30, 2011)

TWO IRON WORKERS DIE IN CONSTRUCTION SITE FALL    (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on February 8, 2011)

POSSIBLE NEW YORK LABOR LAW VIOLATIONS LEAD TO ACCIDENTAL FALL OF CONSTRUCTION WORKER AT WORLD TRADE CENTER     (Posted by Gary E. Rosenberg on March 9, 2010)

Supreme Court, Appellate Division, Second Department, New York.

Case: Ul Haque v. Daddazio

Date: May 10, 2011.

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

Comment: When an accident victim dies as a result of his or her accident, there are potentially two legal claims that can be brought. First is "conscious pain and suffering," which belongs to the Estate. Second is "wrongful death," which is for the benefit of the deceased accident victim's heirs.

The plaintiff's decedent died in an accident when she tried to cross a highway in upstate New York on foot. She was hit by defendant's car; there was neither a crosswalk or intersection where she crossed.

A summary judgment motion was made, to try to throw out the accident victim's lawsuit on paper.

The lower court granted summary judgment and threw out plaintiff's entire complaint. In response to a later motion by plaintiff, the court then reconsidered its position, and reinstated the accident victim's cause of action seeking to recover damages for conscious pain and suffering.

The appeals court stated the rule as follows:

"[W]hile a plaintiff bears the ultimate burden of proof at trial on the issue of conscious pain and suffering, on a motion for summary judgment the defendant bears the initial burden of showing that the decedent did not endure conscious pain and suffering"

The appeals court then pointed out that, in support of that branch of her motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, the defendant submitted the decedent's medical records which showed that the decedent was rendered unconscious immediately following the accident and remained so until her death eight hours later.

In response to defendant's showing that the deceased accident victim was never conscious after the accident, "the plaintiff failed to raise a triable issue of fact." The plaintiff never showed that the deceased pedestrian "experienced any level of cognitive awareness following the accident."

The appeals court found: The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's prior motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering.

Thus, the plaintiff offered no new evidence to warrant the lower court even reconsidering its prior decision to throw out the accident victim's entire case.

Holding: "A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented."

Case dismissed.

BROOKLYN PEDESTRIAN CROSSING STREET STRUCK AND KILLED BY VAN IN HORRIBLE ACCIDENT    (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on April 1, 2011)

TRACTOR TRAILER BACKS UP AND KILLS PEDESTRIAN    (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on March 19, 2011)

PEDESTRIAN KILLED BY CAR     (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on December 31, 2007)

BLVD. OF DEATH VICTIM CALLED 'GOOD MOM'     (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on December 22, 2007)

PEDESTRIAN KILLED BY POLICE CAR    (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on March 18, 2008)

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

Police are searching for the hit-and-run driver who struck a teenage boy in Belle Harbor, Queens last night.

Police say the teen was hit by a burgundy GMC Envoy SUV as he crossed Rockaway Beach Boulevard at Beach 139th Street around 9:00 p.m. on Saturday, May 21, 2011.

The accident victim was taken to Kings County Hospital in critical condition with head and knee injuries

Neighbors said he lives in the area; his name wasn't immediately released.

Cops are searching for a driver who hit a Brooklyn pedestrian last night, and then sped off without stopping.

The driver struck an adult on 86th Street and Bay 34th Street in Bensonhurst, Brooklyn, around 7:30 p.m. on Saturday, May 21, 2011 and then left the scene.

The accident victim suffered neck and back injuries, and was taken to Lutheran Hospital in stable condition.

The driver has not been caught, police said.

RELATED POSTS:

ROSEDALE PASTOR ACCIDENT VICTIM, HURT IN HIT-AND-RUN          (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on February 15, 2011)

DRUNK HIT-AND-RUN DRIVER KILLS PEDESTRIAN     (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on February 7, 2011)

ONE DEAD, ONE HURT IN SEPARATE CAR ACCIDENTS IN QUEENS, STATEN ISLAND(Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on November 28, 2010)

BRONX BOY PLAYING BALL IN STREET STRUCK AND INJURED BY HIT-AND-RUN DRIVER(Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on August 30, 2010)

BROOKLYN PERSONAL INJURY ATTORNEY - MOTOR VEHICLE ACCIDENTS     (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on July 26, 2010)

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

Court: Supreme Court, Appellate Division, Second Department, New York.

Case: Ryan v. City of New York

Date: May 10, 2011

Comment: Another case where a municipal defendant let an accident case go past verdict and then asked the Court to dismiss the case and got the case dismissed for lack of "prior written notice" of a roadway or street defect. Why do lawyers waste so much time and effort on an accident case that can't withstand dismissal?

The accident plaintiff sued in Queens County Supreme Court (in Jamaica). He claimed that his motorcycle hit a roadway defect, throwing him off the bike and injuring him.

The plaintiff took the case all the way through a trial, and obtained a verdict of $447,640.45 for his injuries. After the verdict came in, the City applied to the Court to throw out the judgment notwithstanding the verdict.

Once again, and as we have seen with a recent blog post (listed below), the municipal agency succeeded in having the verdict and the entire accident case thrown out on appeal.

The appellate court decided that defendant was entitled to "judgment as a matter of law." The Court pointed out: "A motion for judgment as a matter of law may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party"

Here, the trial court should have granted the municipal defendant's motion, since the accident plaintiff failed to submit evidence sufficient to establish, prima facie, that the it had prior written notice of the alleged defective condition that purportedly caused the accident or that there was written acknowledgment by the defendant of the defective condition.

Accident plaintiff's case dismissed.

COURT TOSSES SIDEWALK ACCIDENT CASE AFTER VERDICT FOR WRONG PRIOR NOTICE    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 14, 2011)

REPORT SHOWS SENIOR CITIZENS SUFFER HIGHER PEDESTRIAN FATALITY RATES FROM ACCIDENTS    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 20, 2010)

BROOKLYN SIDEWALK IS ACCIDENT WAITING TO HAPPEN      (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 31, 2010)

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

STATEN ISLAND MAN SLIPS IN STREET, KILLED BY BUS     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on September 30, 2010)

Court: Supreme Court, Appellate Division, First Department, New York.

Case: Saretsky v. 85 Kenmare Realty Corp.

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

Date: May 12, 2011

Held: Summary judgment granted by lower court reversed, accident victim's (plaintiff's) complaint reinstated.

Comment: "Open and obvious" is a legal doctrine sometimes used to defeat accident claims. It means, "you should have seen the darn thing, and avoided it." This case holds that a judge can't, on paper, throw out an accident case where the defect is open and obvious. This defense has to be decided by a jury as part of an accident claimant's "comparative fault."

May 21, 2007: Plaintiff is hurt when she falls off a raised walkway in front of the defendant's building, after leaving the co-defendant's store. Photographs show that a platform-like raised walkway runs approximately the length of the building, across several storefronts.

The plaintiff describes the walkway as extending about 4½ feet out from the front of the building and ending at a step approximately five inches high in the middle of the sidewalk.

Plaintiff sues. She claims that the step was unsafe and dangerous and makes the usual claims we see in an unsafe step accident case: the step was improperly repaired an maintained, and had no barriers or warnings, etc. She said that she had not noticed that she stepped onto a raised walkway before she missed the step down.

The defendants argued that the step presented an "open and obvious" condition and that plaintiff fell due to her own carelessness - if she had been paying better attention, she wouldn't have had her accident.

The lower court accepted the defense argument and threw out plaintiff's accident case on paper, granting summary judgment to defendants. The appeals court says: "This was error. Not only did the motion court mischaracterize plaintiff's testimony, but its implicit conclusion, that had plaintiff been looking she would have seen the hazard and avoided injury, was premised on a finding that the transition step to the sidewalk was open and obvious. As such, the precedent of this Court mandates reversal."

The Court then confuses things slightly by noting: "More significantly, for the plaintiff in this case, . . . even visible hazards do not necessarily qualify as open and obvious because the nature or location of some hazards, while they are technically visible, make them likely to be overlooked."

The Court then embraces the affidavit of plaintiff's expert engineer, who says that the plaintiff suffered from "optical confusion" because the concrete on the sidewalk and the walkway were similar shades of gray and although the edge of the walkway was painted with a red line, the paint in front of the defendant's store was "very worn."

The Court finishes by finding: "In any event, even had the plaintiff seen the transition step going into the store, evidence that the transition step was less visible coming out of the store is sufficient to raise a triable issue of fact precluding summary judgment."

Comment: So the Court makes it clear that an argument of "open and obvious" can't prevail on a summary judgment motion, but things get blurry because the Court seems persuaded by plaintiff's engineer. If there was no such expert engineer and plaintiff just said "I didn't see it" would she still defeat a defense claim of "open and obvious"? What seemed an obvious "yes" at the beginning of this legal opinion is not so clear by the end.

Further Comment: "Open and obvious" is the opposite (sort of) of the "trivial defect" doctrine.

RELATED POSTS:

BAD BALANCE, BRITTLE BONES - ELDERLY ESPECIALLY LIKELY TO GET SERIOUSLY INJURED IN ACCIDENTAL FALLS    (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on February 3, 2011)

BROOKLYN MAN KILLED AFTER FALLS INTO DOUGH MIXING MACHINE    (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on January 25, 2011)

BROOKLYN TEACHER FAKES STAIRWAY ACCIDENT TO TRY TO SAVE JOB     (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on August 3, 2010)

COLLEGE STUDENT FLEEING ROBBERS TUMBLES FROM ROOF; WAS IT AN ACCIDENT OR WAS HE PUSHED?     (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on April 11, 2010)

JACKSON HEIGHTS WORKER GETS THE SHAFT; FATAL ACCIDENT AND INJURY LEADS TO DEATH     (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on February 12, 2010)

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

Who: Errol Wilson, age 59, a married father of two, was killed in a work accident.

What: An 18-year veteran New York City highway worker (Roadway Repair and Maintenance Division) was killed in an accident that involved a Department of Transportation vehicle.

When: Just after midnight on Tuesday, May 17, 2011

Where: In Queens, on the Cross Island Parkway near Northern Boulevard.

Why: He was working as a highway repairman, part of a roadway paving project, at the time. Killed in a tragic accident when one of his coworkers backed up a truck into him.

How: He was pronounced dead on arrival at North Shore University Hospital.

The NYPD is investigating the cause of the accident; Police don't suspect any criminality on the part of the truck driver, a 46-year-old male DOT employee.　

WHAT IS A "MOVE OVER" LAW? WHY YOU BETTER KNOW THE ANSWER!       (Posted by accident injury Queens lawyer Gary E. Rosenberg on January 10, 2011)

BROOKLYN, QUEENS AND BRONX (NEW YORK CITY) TRUCK ACCIDENT LAWYER    (Posted by accident injury Queens lawyer Gary E. Rosenberg on March 27, 2010)

TOO MANY DRIVERS HURT IN ACCIDENTS IN HIGHWAY WORK ZONES     (Posted by accident injury Queens lawyer Gary E. Rosenberg on December 23, 2009)

OFF-DUTY COP BLASTED BY GARBAGE TRUCK      (Posted by accident injury Queens lawyer Gary E. Rosenberg on March 1, 2008)

WOMAN HIT, KILLED BY RIG ON QUEENS BLVD.    (Posted by accident injury Queens lawyer Gary E. Rosenberg on December 20, 2007)

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

Supreme Court, Appellate Division, First Department, New York.

Case: Portillo v. NYCTA

Decided: May 12, 2011.

Plaintiff was injured when his leg got caught in the gap between a subway car and the platform at the Union Square Station. Allegedly, the press of passengers exiting the car caused him to release his grip on the pole he had been holding, and be pushed out the door. Although plaintiff filed a timely notice of claim, defendant moved to dismiss the complaint on the ground, in part, that the notice of claim was defective for failing to specify the exact location of the accident.

A notice of claim must set forth, among other things, the time and place of an accident and the manner in which it occurred. This statutory requirement is designed to enable the governmental entity involved to obtain sufficient information to promptly investigate, collect evidence, evaluate the merit of the claim, and assess the municipality's exposure to liability. In considering the sufficiency of a notice of claim in the context of a motion to dismiss, a court is not confined to the notice of claim itself, but may also look to evidence adduced at a § 50-h hearing, and to such other evidence that is properly before the court.

Plaintiff reported his accident to defendant on the day it occurred, providing the train line that he was on, the station where the accident occurred, and the time at which the accident took place. He provided enough information for defendant to identify the train in which he was a passenger and to inspect the train on the same day as the accident. In addition, based on plaintiff's testimony at the § 50-h hearing, defendant was able to determine that plaintiff was riding in one of 3 cars out of 10 cars on that particular train. Thus, even if the information provided in the notice of claim was not sufficient, the additional evidence provided by plaintiff satisfied the requirements of the notice of claim and permitted defendant to promptly investigate, collect evidence and evaluate the claim.

Holding: Defendant's motion for summary judgment denied and complaint reinstated.

RELATED POSTS:

GOOD SAMARITAN DIES IN QUEENS SUBWAY ACCIDENT     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 15, 2010)

SUBWAY ACCIDENT VICTIMS ON FIRST DATE     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 19, 2010)

SUBWAY ACCIDENT; TRAIN MAYBE STOPS, MAYBE RUNS OVER WOMAN ON TRACKS - BUT SHE'S BARELY SCRATCHED!     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 25, 2010)

SUBWAY WORKER ELECTROCUTED IN FATAL ACCIDENT     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on April 26, 2010 )

MANHATTAN WOMAN JUMPS ONTO SUBWAY TRACKS; CRUSHED TO DEATH BY TRAIN (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 13, 2010)

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

Case: Krebs v. Town of Wallkill

Date:  May 3, 2011

Supreme Court, Appellate Division, Second Department, New York.

Holding: Defendant is granted summary judgment, throwing out this case on paper.

Comment: Another assumption of the risk case (will they never learn?) I have written several times about assumption of the risk. See Related Posts, below. The Court describes assumption of the risk as follows:

"The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity 'consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'."

On September 22, 2008, the accident plaintiff, a regular tennis player, was playing doubles at the time of his accident, on a tennis court located in Circleville Town Park, which is owned by the defendant, Town of Wallkill.

The accident plaintiff had played this court many times before. He knew that the net in the middle of the tennis court had a tear or rip at the bottom. While warming up for his tennis game,

the accident victim reached over the net with his racquet to push a ball on the other side of the net to a player on that side. As he moved away from the center net, his left heel caught in the lower band of the center net, which was detached from the netting itself, and he tripped, allegedly injuring his left wrist.

In its decision, the Court restates the assumption of the risk doctrine and notes, "If the risks are ... perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be"

The defense argued that the accident victim assumed the risk of his injury. The Court holds that the plaintiff can't recover as long as he was aware of the potential for injury of the mechanism from which the injury results. (Comment: This really doesn't make much sense.)

The Court was really persuaded by the injured plaintiff's "awareness" of the condition of the net - which doesn't seem like it should throw this plaintiff out of court, but does.

The Court then endorses the defense argument, making another finding which doesn't make sense: "In opposition, the plaintiff failed to raise a triable issue of fact. The allegedly dangerous condition in this case was not a 'faulty safety feature.' Rather, the center net constituted a feature which was 'directly used in playing outdoor tennis'."

Comment: Generally, an accident or injury caused by a damaged piece of sporting equipment will get an accident victim around the "assumption of the risk" doctrine and keep a case from being thrown out of court. This accident victim really lost here because the defect wasn't hidden to him; which the Court never says.　

BASEBALL GAME SPECTATOR ASSUMES RISK & CAN'T SUE FOR ACCIDENT     (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 20, 2011)

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)

Comment:  I see this as a nasty little case, for reasons I will explain, below.

Case:  Dina Vardoulias v. County of Nassau

Supreme Court, Appellate Division, Second Department, New York.

Date decided: May 3, 2011

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

This is a sidewalk accident case. From the Court's decision, we can't tell what injury was suffered by the plaintiff. But this case went the distance. The case was fought for the accident victim through pretrial proceedings, and to and through trial, which lead to an approx. $140,000 verdict.

The jury found The County of Nassau 70% at fault for the happening of this accident. So the accident victim won, right? Wrong.

On appeal, the favorable verdict and plaintiff's entire case is thrown out. Game over. Permanently.

The reason is technical. Before The County of Nassau - or almost any municipality, such as The City of New York - can be sued for an accident on a defective sidewalk, the law requires "prior written notice." This is a very tedious requirement and keeps most sidewalk cases from being brought. Because, have you, Dear Readers, ever written to complain about a bad sidewalk before anyone got hurt? Do you know anyone who has? No one does.

Now this case sounds like a winner. Why? Because, somehow, The Nassau County Recreation and Parks Department received prior written notice of the alleged condition on two occasions, approximately 10 months and 4 months before the accident. So that's good, right? Wrong.

Prior written notice laws are even more technical than you might think. Not only must there be notice identifying the defective sidewalk condition before the accident, but the notice must go to the correct department of the municipality.

Pay close attention. To sue Nassau County for a defect in one of its sidewalks, notice must have been made, in writing, by certified or registered mail directed to the Office of the County Attorney. Notice to The Nassau County Recreation and Parks Department was not good enough. The Court held, "Here, it is undisputed that the Office of the County Attorney, as statutory designee, did not receive prior written notice of the alleged defective sidewalk. The fact that the Nassau County Recreation and Parks Department received prior written notice did not satisfy the statutory requirement that prior written notice be given to the Office of the County Attorney."

None of what I've already written about this accident lawsuit and discussed above is what makes me say that it's a nasty little case. You see, we - us experienced personal injury and accident lawyers - all know this rule. This accident case was a loser before it was ever begun; it would never win.

My beef is that The County of Nassau did not get this case thrown out until after trial was completed. The case could have been attacked early with a "summary judgment" motion, asking the Court to toss it out on paper. Instead, there was a trial. A waste of the lawyers' time, the parties' time, and, worst, the judge's and court's time. Also, to win an accident case plaintiff had to pay a doctor to testify at trial.

Dear Readers, this is a nasty little case because The County of Nassau didn't attack it early on and give it a "mercy killing," rather than waste time and money and scarce judicial resources.

STATEN ISLAND MAN SLIPS IN STREET, KILLED BY BUS   (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on September 30, 2010)

REPORT SHOWS SENIOR CITIZENS SUFFER HIGHER PEDESTRIAN FATALITY RATES FROM ACCIDENTS    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 20, 2010)

BROOKLYN SIDEWALK IS ACCIDENT WAITING TO HAPPEN     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 31, 2010)

BOY SLIPS ON ICE, KILLED BY BUS     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on February 18, 2010)

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

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

As told in the N.Y. Post:

Who: 2-year-old Andrew Powell of the Bronx had an accident.

What: He tumbled from a fourth-story Bronx apartment window. He's in critical condition and fighting for his life.

When: Tuesday, May 10, 2011

Where: His family's Grand Ave. apartment in Morris Heights, Bronx, New York.

Why: The family appeared to have removed the window guard, which is required for homes with children under 11, said Penny Wisneski, president of Reliant, the company that manages the building. "This is a tragedy," she said. "There were window guards. It appears that they were removed to put an air conditioner in. We didn't remove them."

But the air conditioner had been taken out, leaving no barrier to stop the child from climbing out, she said. The building's management company is inspecting other apartment windows to make sure the guards are installed, Wisneski said. No one is expected to be charged, police said.

How: Juan Fernandez, 60, said he was playing dominoes outside the building about 7 p.m., when he saw the toddler suddenly land on the sidewalk.

"It was traumatizing," he said. "The baby just landed by our feet. It caught us by surprise."

The little boy lay motionless as blood began to pour from his right ear, Fernandez said.

"Then he started shaking a little and we were glad he was still alive."

Emergency workers responded minutes later and took the injured boy away. He was in the intensive care unit at New York-Presbyterian Hospital Weill Cornell last night.

RELATED POSTS:

COLLEGE STUDENT FLEEING ROBBERS TUMBLES FROM ROOF; WAS IT AN ACCIDENT OR WAS HE PUSHED?   (Posted by Brooklyn injury accident lawyer Gary E. Rosenberg on April 11, 2010)

RAILING FAILURE = DEADLY BALCONY PLUNGE ACCIDENT    (Posted by Brooklyn injury accident lawyer Gary E. Rosenberg on March 17, 2010)

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

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

BRONX TODDLER RECOVERING AFTER FALL FROM WINDOW    (Posted by Brooklyn injury accident lawyer Gary E. Rosenberg on November 23, 2007)

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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 Injury Accident Lawyer)

Who: A tour run by Chinatown operator L & L Travel, but a bus belonging to TraveLynx of Cocoa, Florida., which employed one Steve Drappel.

What: Timothy White, age 29, of Philadelphia was struck and dragged under the rear wheels of a tour bus. At the time he was walking eastbound across Ninth Avenue. He was taken to Bellevue Hospital and there pronounced dead.

When: Saturday May 7, 2011

Where: Manhattan, Ninth Avenue and West 47^th Street

Why: Drappel failed a Breathalyzer test with a blood alcohol of .08 - twice the legal limit of .04 for commercial drivers - and was charged with vehicular manslaughter and DWI.

How: Tour bus driver Steve Drappel, age 57, drinking vodka while driving. Sipping from silver travel mug as he drove tour bus in Manhattan. Mr. Drappel was finishing a three-hour tour through Manhattan. The bus, with some 40 tourists, had visited South Street Seaport and Rockefeller Center and had just left Times Square on its way to the airport hotels near Newark, where many of the passengers were staying, said Kevin Luong, the safety manager of L & L Travel, the Chinatown agency that organized the tour.

STONED TEENAGE DRIVER "BORROWS" CAR & KILLS TWO IN CAR CRASH    (Posted by Queens Injury Accident Lawyer Gary E. Rosenberg on August 6, 2008)

PEDESTRIAN HIT BY CAR IN BROOKLYN, THEN HIT BY ANOTHER    (Posted by Queens Injury Accident Lawyer Gary E. Rosenberg on April 13, 2008)

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

PEDESTRIAN LOSES LEGS IN CHINATOWN BUS ACCIDENT    (Posted by Queens Injury Accident Lawyer Gary E. Rosenberg on January 14, 2008)

FAMED JOCKEY'S DAUGHTER PLEADS NOT GUILTY IN FATAL DUI     (Posted by Queens Injury Accident Lawyer Gary E. Rosenberg on December 21, 2007)

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

Luis Torres, age 22, died in an accident after he was slammed by a Budget rent-a-truck that took off after hitting him.

Torres was riding his bicycle on Fort Hamilton Parkway at 59th St. while delivering pizza for Amnon Kosher Pizza.

The as yet unnamed 25-year-old driver of the truck tried to drive away but cops caught him about a block away from the accident, cops said. He was awaiting arraignment.

Torres was taken to Brooklyn's Lutheran Hospital for his injuries and there declared dead.

His wife, Laura Campoberdecq, 19, reportedly was too upset to give a statement.

According to the deceased's uncle, 33 year-old Edgar Ingacq, "He was a good person."

Some two years ago Torres and his wife came to Brooklyn from Ecuador to save money for their daughter, 2-year-old Kelly Denisse Inga.

A woman lost control of her car on Friday, May 6, 2011 at 3:00 PM, jumped the curb, and smashed into two people waiting at a Brooklyn bus stop in a scary accident.

The car continued into a nearby bodega, careening into customers sitting at tables.

According to witness Shimi Marcus, age 22, "It was a bloodbath." And, "I saw two young kids, maybe teenagers, waiting outside [the bus stop]. She [the driver] smashed right into them and threw them like toys through the glass [of the bodega]."

The 1995 Nissan Maxima, was registered to a Long Island woman The car's driver -- an as yet unidentified an older woman -- injured six people as she was trying to make a left turn.

Witnesses said the car accident started when the Nissan swerved into a bus stop at the intersection of Brooklyn's McDonald Avenue and Avenue I, hitting the two people.

It then crashed into the bodega, Anisha Food, which was crowded with customers.

"There was one man who was totally drenched in blood, head to toe," Marcus said.

Deli worker Mamun Allam -- who was behind the counter when the car came crashing through the store -- said it sounded like "an explosion."

"When I got up to check on everyone in the restaurant, I thought they were all dead," he said.

According to cops, none of the persons injured in the accident face life-threatening injuries.

It's not known why the car crashed; no charges are expected to be brought against the driver - who is either very lucky or unlucky - depending on your point of view here.

SEVERAL INJURED IN ACCIDENT WHEN CAR JUMPS CURB OUTSIDE MANHATTAN COURTHOUSE     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on April 12, 2008)

VAN JUMPS CURB IN HARLEM; SEVEN PEDESTRIANS HURT     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 17, 2008)

HIT-AND-RUN ACCIDENT LEAVES INJURED WOMAN FIGHTING FOR HER LIFE       (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 14, 2008)

TRUCK JUMPS CURB, STRIKES THREE PEDESTRIANS ON SIDEWALK     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on February 13, 2008)

VAN KILLS WOMAN EATING IN ARBY'S     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on January 10, 2008)

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

Dear Readers, here's a recent Bronx case that may be hard to understand. Injured accident victim-plaintiff loses on appeal when her case is dismissed - even though it feels like she should win. Legal technicalities spell the end of her case. This is why you need a qualified and experienced personal injury lawyer if you're hurt in an accident. The devil's in the details.

Court: Supreme Court, Appellate Division, First Department, New York.

Case: Lance v. Den-Lyn Realty Corp.

Date decided: May 5, 2011.

Injured plaintiff lives in a Bronx apartment building. She claims that her accident occurred when she put her foot down on a step and it broke, causing her to fall.

She loses because:

1. The defendant building owner established that it did not have actual notice of the alleged defect based of the stair or that section of the staircase - even though the injured accident victim said that she used it every day. And the manager of the building testified that he had received no complaints nor been notified of a problem with the steps.

2. Because the alleged defect was not visible and apparent, it could not give rise to constructive notice. Further, constructive notice could not be established on a "recurrent condition" theory based on plaintiff's testimony that she had observed between many loose stairs in the building's staircases during the five years that she lived there but she couldn't say whether any of them were in the area where she fell. The recurring condition must occur in the area of the accident to give rise to the presumption of constructive notice that the condition probably existed at the time of the accident.

3. The opinion letter submitted by plaintiff's expert, an engineer, based only on review of plaintiff's affidavit and bill of particulars, as well as photographs of the stairway allegedly taken after it was repaired, did not raise triable issues of fact.

Comment: Attorneys sometimes try to save money by not having an engineer or other paid expert visit the place where the accident occurred. In this case, even if the stair was repaired immediately after the accident, it is still good practice to get your expert engineer to the place where the accident happened. Sometimes an engineer or safety professional can see defective or dangerous conditions that the layperson or even the attorney may miss.

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

CHILD SURVIVES ACCIDENTAL FALL FROM APARTMENT WINDOW MISSING WINDOW GUARD    (Posted by Brooklyn Injury Accident Lawyer Gary E. Rosenberg on June 28, 2010)

COLLEGE STUDENT FLEEING ROBBERS TUMBLES FROM ROOF; WAS IT AN ACCIDENT OR WAS HE PUSHED   (Posted by Brooklyn Injury Accident Lawyer Gary E. Rosenberg on April 11, 2010)

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

THE SUMMARY JUDGMENT WEAPON     (Posted by Brooklyn Injury Accident Lawyer Gary E. Rosenberg on October 27, 2008)

In the Matter of Francis B. Mann, Jr., an attorney and counselor-at-law.

Admitted to Bar: Attorney Man was admitted to the Bar on May 27, 1981.

Discipline imposed: Two year suspension of law license

Date of decision: April 26, 2011

Case brought by: Grievance Committee for the Ninth Judicial District, petitioner;

Court: Supreme Court, Appellate Division, Second Department, Brooklyn, New York

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

After a preliminary conference on March 29, 2010, and a hearing on June 3, 2010, the Special Referee sustained all 10 charges.

Charge one alleges that the respondent attorney took escrow money when he shouldn't have. He settled a client's car accident case in 2006 and agreed with two of her doctors to hold in escrow $5,000 from the settlement until the resolution of a No-Fault claim. The doctors agreed to take the $5,000 if the No-Fault claim lost, otherwise they would accept whatever amount was awarded to them.

While this lawyer was supposed to hold the $5,000 (from the accident settlement in his escrow bank account), he took the money for his own use. [Dear Readers, This is a big "no, no."] The lawyer admitted this charge, saying that he needed the money - which, of course, is no excuse.

Charge two alleges that the respondent attorney failed to properly title and identify his escrow account.

Dear Readers, this is kind of an easy one. Escrow money doesn't belong to the lawyer. Bank paperwork for a lawyer escrow account must have printed on it: "Attorney Special Account," "Attorney Trust Account," or "Attorney Escrow Account." This is pretty basic stuff.

Charge three alleges that the respondent attorney took a different (second) client's escrow money. Although this attorney deposited a $25,000 settlement check, and was required to hold the settlement proceeds in his escrow account, the balance on the account on September 5, 2008, fell to a low of $42.50.

Charge four alleges that the respondent lawyer ripped off his brother-in-law by giving him a $5,000 escrow check that bounced, to repay part of a $10,000 personal loan made to him by his brother-in-law. Dear Readers, attorney escrow checks are NEVER supposed to bounce!

Charge five alleges that the respondent attorney mixed personal funds with escrow funds. On or about March 17, 2007, he deposited $3,040 into his escrow account; $3,000, was a personal loan from his sister-in-law to cover general business expenses. The respondent could not recall the source of the remaining $40, which was in cash. During the 30 days following the deposit, he took all the funds for himself.

Charge six alleges that the respondent attorney is guilty of disbursing escrow checks made payable to "cash" instead of a named payee. Dear Readers, this is another well-known "no, no."

Charge seven alleges that the respondent lawyer mixed earned legal fees, which are personal funds, with funds he was holding for the benefit of others (escrow money) incident to his practice of law.

Charge eight alleges that the respondent attorney failed to account for funds transferred from his escrow account to his business account.

Charge nine alleges that the respondent attorney again failed to account for funds being disbursed from his escrow account - from March 2008 through October 2008, he paid a total of $25,811.67 from his escrow bank account himself or his law firm. He testified that the funds represented fees and disbursements, but he could not identify the name of the client matter to which the transfers related.

Charge ten alleges that the respondent is guilty of engaging in conduct that adversely reflected on his fitness to practice law by failing to pay two judgments related to his practice of law.

One judgment, entered on January 9, 2009, in the amount of $992.20, relates to invoices for video services provided to the respondent's law firm in 2007. The second judgment, entered on April 22, 2009, in the amount of $2,982.77, is related to reporting services provided to the respondent's law firm in December 2006 and March, April, and June 2007.

"Based on the evidence adduced and the respondent's admissions, we find that the Special Referee properly sustained all 10 charges."

The lawyer gets a two-year suspension of his law license.

Comment: He got off easily. Most lawyers get disbarred (lose their law license) `for messing up with escrow money. But it seems that this attorney was just dumb and didn't know the simplest rules of escrow bank account bookkeeping and things like having "attorney escrow account" printed on his paperwork and NOT making out checks to "cash." Most likely, he didn't get a more severe penalty because he didn't actually chest or steal from any of his clients. Still, sloppy records keeping put him out of the law business foe two years. This stuff is taken seriously by the Powers That Be.

Hire your attorney carefully.

ATTORNEY USES ESCROW ACCOUNT TO HIDE MONEY FROM TAX AUTHORITIES     (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 17, 2010)

LAWYER SUSPENDED; GOOD LOVE GONE BAD     (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on October 16, 2009)

LAWYER CAN'T STOP PRACTICING, EVEN AFTER THE JUDGES TELL HIM TO STOP    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on January 19, 2009)

FAKING HIS WAY TO THE TOP      (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on January 31, 2008)

FORMER LEGISLATOR CONTINUES FALL FROM GRACE     (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 1, 2008)

ATTORNEY JOSEPH LEVINE ARRESTED FOR STEALING FROM CLIENTS    (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on December 15, 2007)

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

Statistically, children under age 16 are the most likely to be struck by a car, but elderly victims are the most likely to die as a result of pedestrian or crosswalk accident injuries. Most pedestrian accidents occur on the weekends during the evening hours. Pedestrian accidents in the late afternoon increase when daylight savings time is removed in the winter and the sun sets earlier.

A pedestrian in a crosswalk has the right-of-way when crossing the street with the light. But you can never totally disregard traffic.

Each year there are more than 750 fatal bicycle accidents and more than 50,000 bicycle accident injuries resulting from traffic crashes in the United States. Cyclist fatalities account for approximately 2 percent of all traffic fatalities as well as 2 percent of all traffic accident injuries.

I am a Brooklyn injury attorney dedicated to representing those who have suffered a loss or disability through in a bicycle accident, crosswalk accident, or pedestrian collision. These kinds of cases can be challenging, if not difficult, to pursue. In most cases the insurance company will allege comparative fault or negligence against the accident victim.

You need an experienced Brooklyn pedestrian/crosswalk/bicycle accident injury attorney who can successfully defeat the insurance company's claims of negligence. Often pedestrian and bicycle accidents involve serious, permanent or catastrophic injuries that will need to be adequately proved and successfully negotiated by an experienced personal injury attorney. The experienced personal injury attorney will usually have the skills to successfully prove the case in court and present the case in a way that will help motivate jurors or the insurance company to award maximum compensation.

Contact me now for a FREE conversation about your bicycle, crosswalk, or pedestrian case. There is no obligation to hire a lawyer. We are usually retained on a contingency fee basis. There is no fee until our personal injury attorneys successfully recover fair compensation for you.

There was a loss of 4,881 lives in pedestrian/motor vehicle crashes in 2005, almost thirteen people every day of the year (NHTSA Traffic Safety Facts). Though the number of pedestrian fatalities fell from 5,584 in 1995 to 4,881 in 2005, the fatalities in 2005 were the highest since 4,901 fatalities were recorded in 2001. Fortunately, the number of reported injuries involving pedestrians fell from 84,000 in 1995 to 64,000 in 2005. However, only a fraction of pedestrian crashes that cause injury are ever recorded by the police.

Pedestrian Deaths in 1995: 5,584

Pedestrian Deaths in 2005: 4,881 (NHTSA Traffic Safety Facts) Pedestrian Injuries in 1995: 86,000 (NHTSA Traffic Safety Facts) Pedestrian Injuries in 2005: 64,000 (NHTSA Traffic Safety Facts)

According to the National SAFEKIDS Campaign, more than 46,000 children are injured each year in pedestrian accidents

The total cost of pedestrian death and injury among children ages 14 and younger is $5.2 billion per year (Safe Kids Worldwide).

70 percent of pedestrians killed in 2005 were males.

Almost three out of every four pedestrian fatalities occur in urban areas (74 percent).

The top four states for pedestrian fatalities are California, Florida, Texas, and New York. These four states make up 42 percent of pedestrian fatalities nationwide while only accounting for 29 percent of the total traffic fatalities across the country.

Nearly half (48 percent) of pedestrian fatalities occur on Friday, Saturday, or Sunday.

660 bicyclists were killed in crashes with motor vehicles in 2002.

Bicycle accident injuries and/or deaths are most likely to occur in summer.

Bicycle accident injuries and deaths are most likely to occur on Fridays and Saturdays. The peak time is 3-9 pm.

Ninety-eight percent of bicyclists killed in 1999 reportedly weren't wearing helmets.

Seventy-one percent of 1999 bicycle deaths were riders 16 years and older. This compares with 32 percent of bicycle deaths in 1975.

More bicyclists are injured or killed in urban areas than in rural areas. Thirty-five percent of bicycle deaths occur at intersections.

Fifty-seven percent of bicycle deaths in 1999 occurred on major roads, and 37 percent occurred on local roads.

Fifty-nine percent of bicycle deaths among children younger than 13 and 27 percent of adult bicycle deaths occur on minor roads.

Adult bicyclists are more likely than children to be killed on major roads (67 percent compared with 38 percent).

PREVENT INJURY IN AN ACCIDENT: GROWN-UP CYCLISTS NEED HELMETS, TOO   (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on May 22, 2010)

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

BICYCLE RIDER KILLED IN ACCIDENT; BROOKLYN MAN CHARGED    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on April 15, 2010)

BROOKLYN SIDEWALK IS ACCIDENT WAITING TO HAPPEN    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on March 31, 2010)

PERSONAL INJURY AND ACCIDENT ATTORNEY - SERVING JUSTICE    (Posted by Brooklyn Accident Injury Attorney Gary E. Rosenberg on January 18, 2010)

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