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

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RELATED POSTS:

NEW YORK CITY ACCIDENTS: ON FOOT OR IN A VEHICLE, BE CAREFUL!   (Posted by Queens accident attorney Gary E. Rosenberg on March 8, 2011)

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

DRIVERS WHO RUN STOP SIGNS CAUSE ACCIDENTS; CHILDREN ARE FREQUENTLY VICTIMS    (Posted by Queens accident attorney Gary E. Rosenberg on February 21, 2011)

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

FIVE PEDESTRIANS INJURED IN TWO QUEENS CAR ACCIDENTS   (Posted by Queens accident attorney Gary E. Rosenberg on October 29, 2010)

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Cyclist critical after car plows into him, throws him in the air

A 53-year-old bicycle rider was struck and thrown into the air by a silver Jaguar automobile as he was riding along a street in Manhattan's Chinatown on Monday, June 27, 2011.

The gray mountain bicycle was crossing Canal Street heading towards Broadway when the Jaguar - driving east on Canal Street - struck it. The silver Jaguar had damage to its windshield and sun roof where the man fell.

Witnesses say that the man was rendered unconscious and was bleeding profusely from a head wound. Also, he wasn't wearing a helmet.

He was reportedly at Bellevue Hospital in critical condition.

Police were at the scene speaking to the driver. No arrests have been made. 　

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Queens 7-year-old fighting for her life after being hit by bus

On Monday June 27, 2011, a 7-year-old Queens girl ran into the street to escape a loose dog and was struck by a school bus.

The unnamed girl is fighting for her life after she was struck shortly before 4 pm when she darted into traffic at Craft Ave and 258th Street in Rosedale, Queens.

Horrified witnesses said the commotion started with a dog that was running loose on the street.

Cops said the bus driver was heading eastbound on 258th Street and was turning left onto Craft Avenue when the girl darted out and was grazed by the right side of the bus.

She is at Long Island Jewish Medical Center, where she's in critical condition.

"I stopped the bus but she still hit it," said the driver, who declined to give his name. "I called 911. I took off my shirt to help her."

Cops said there was one child on the bus at the time of the accident who was not injured.

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A 6-year-old girl is clinging to life after being mowed down by a drunken driver in Queens, cops said on Wednesday June 29, 2011. Reportedly, 6 year-old Zanaya Smith was left in critical condition after being hit by the drunk driver when she was waiting for an ice cream truck.

Police say the child, whose name has not been released, was hit shortly after 7:30 PM at 168th Place and 104th Avenue in Jamaica.

Smith - who lives in Brooklyn and was visiting family in Jamaica, Queens, was taken to Long Island Jewish Medical Center, where she remains in critical condition.

Neighbors say they heard the driver's brakes screech before hitting the girl.

The driver, Kent Lowrie, 53, of Jamaica was taken into custody after failing a Breathalyzer test, cops said.

He was charged with DWI and vehicular assault.

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

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RELATED POSTS:

LONG ISLAND MOTHER AND 11 YEAR-OLD DAUGHTER SERIOUSLY HURT AND THEN DIE IN ACCIDENT WITH TRACTOR TRAILER    (Posted by Queens accident attorney Gary E. Rosenberg on April 8, 2010)

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

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

FIRE TRUCK SLAMS INTO POST OFFICE 18-WHEELER    (Posted by Queens accident attorney Gary E. Rosenberg on January 18, 2008)

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

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　A Queens-bound tour bus heading from Louisville, Kentucky, to Flushing, Queens, crashed into the rear of a flatbed tractor-trailer on the Pennsylvania Turnpike on Monday, June 27^th at about 7:30 in the morning. The accident happened about 45 miles east of Pittsburgh.

The bus was carrying Asian tourists. Passengers injured in the accident were taking to various Pennsylvania hospitals. Killed was bus driver Bo Hua Tan, age 39, of New York City. Authorities are investigating the cause of the accident.

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A 13-year-old Staten Island girl on her way home from the last day of school died in an accident on Tuesday, June 28, 2011 a little after noon, after being run over by a tractor-trailer truck.

Aniya Williams, age 13, had gotten only a few blocks from her Staten Island school when she was hit by the rig of a tractor-trailer as she crossed a street, police said.

Aniya, who attended the Staten Island School of Civic Leadership, was pinned under the truck at South Ave. and Goethals Road North, police said.

Witnesses said the truck had a green light, and one said the truck "wasn't going that fast."

Police said Aniya crossed against the light as she darted across South Ave.

The accident occurred as Aniya crossed the north side of Goethals Rd. North from north to south near its intersection with South Avenue. The truck, headed west, was hauling an empty trailer.

The girl's grieving mother said if a crossing guard were assigned to the intersection, it may have saved her daughter's life.

School kids often run across the intersection to catch city buses, said Ernest Eans, a 55-year-old retired correction officer who knows the area.

"It was bound to happen sooner or later," Eans said. "There's no crossing guard."

An off-duty EMT who had stopped at a nearby Sunoco station when the accident occurred said Aniya was talking the while he and others pulled her from beneath the truck.

"I kept telling her, 'You're doing all right. Just keep talking to me.' I asked her where it hurt, and she said, 'Everywhere.'"

The driver, Edison De La Cruz, 52, of Newark, was questioned about the accident by police but cleared of any wrongdoing, police said.

Case: Hluch v. Ski Windham Operating Corp.

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

Date: June 14, 2011

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

Facts: Allegedly, on February 3, 2008, the plaintiff was injured at a ski resort operated by the defendant Ski Windham Operating Corp. (hereinafter Ski Windham) when he was struck by an "unmanned and unsecured" ski patrol sled which was "careening out of control."

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RELATED POSTS:

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

RULING FAULTS LACK OF CIVILITY IN REMARKS AT DEPOSITION   (Posted by Queens injury lawyer Gary E. Rosenberg on December 12, 2007)

WOBBLY FACTS GET JELL-O CASE DISMISSED    (Posted by Queens injury lawyer Gary E. Rosenberg on January 29, 2008)

TAKES NERVE TO BE A GAMBLER; TAKES BIGGER NERVE TO BLAME YOUR GAMBLING ON OTHERS (Posted by Queens injury lawyer Gary E. Rosenberg on March 9, 2008)

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

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On or about October 2, 2007, the injured plaintiff signed an application for membership (hereinafter the Application) with the U.S. Ski and Snowboard Association (hereinafter USSA) which included an "Assumption of Risk and Release of Liability" agreement (hereinafter the Release). The Release included a forum selection clause providing that lawsuits for personal injury or related loss against USSA "must be maintained in state courts sitting in Summit County, Utah or federal district courts sitting in the District of Utah, Central Division."

 

Allegedly, on February 3, 2008, the plaintiff was injured in an accident at a ski resort operated by the defendant Ski Windham Operating Corp. (hereinafter Ski Windham) when he was struck by an "unmanned and unsecured" ski patrol sled which was "careening out of control." Thereafter, he commenced this action against Ski Windham, among others, to recover damages for personal injuries sufferd in his accident. In their answer, the defendants asserted various affirmative defenses, including release.

Ski Windham moved for summary judgment dismissing the complaint insofar as asserted against it based on the forum selection clause in the Release, and, in effect, based on the affirmative defense of release. The accident victim cross-moved, in effect, pursuant to CPLR 3211(b) to dismiss the affirmative defense of release insofar as asserted by Ski Windham. The Supreme Court granted that branch of Ski Windham's motion which was for summary judgment dismissing the complaint insofar as asserted against it based on the forum selection clause and did not reach that branch of Ski Windham's motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against it based on the affirmative defense of release. It denied the plaintiff's cross motion as academic. We reverse, and remit the matter to the Supreme Court, Queens County, for further proceedings in accordance herewith.

" 'A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court' " ( Bernstein v. Wysoki, 77 AD3d 241, 248-249, quoting Stravalle v. Land Cargo, Inc., 39 AD3d 735, 736). " 'Absent a strong showing that it should be set aside, a forum selection agreement will control' " ( Bernstein v. Wysoki, 77 AD3d at 249, quoting Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836; see Di Ruocco v Flamingo Beach Hotel & Casino, 163 A.D.2d 270, 272).

"As a general rule, 'only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement' " ( Bernstein v. Wysoki, 77 AD3d at 251, quoting Freeford Ltd. v. Pendleton, 53 AD3d 32, 38). "However, 'there are three sets of circumstances under which a nonparty may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a "global transaction" who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is "closely related" to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them' " ( Bernstein v. Wysoki, 77 AD3d at 251, quoting Freeford Ltd. v. Pendleton, 53 AD3d at 38-39).

Here, Ski Windham was not a party to either the Release or the Application, and it failed to establish, prima facie, that it could enforce the forum selection clause as a third-party beneficiary or a party to a global transaction (see Bernstein v. Wysoki, 77 AD3d at 251; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). Moreover, Ski Windham's moving papers did not present evidence that the relationship between Ski Windham and USSA was sufficiently close so that enforcement of the forum selection clause was foreseeable by virtue of the relationship between them (see Bernstein v. Wysoki, 77 AD3d at 251-252). Ski Windham submitted a copy of the Application in support of its motion, and the Release set forth therein defines "USSA" as the "United States Ski & Snowboard Association, its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators " (emphasis added). The forum selection clause provides that it applies to "all lawsuits for personal injury or related loss against USSA." Thus, reading the aforementioned provisions of the Release together establishes that the forum selection clause applies to personal injury lawsuits against USSA's "ski and snowboard facility operators." However, Ski Windham is not named as a USSA ski and snowboard facility operator anywhere in the Application, including in the Release, and Ski Windham did not tender any evidence to show that it had a relationship with USSA such that it could be deemed a USSA "ski and snowboard facility operator [ ]" for purposes of enforcing the forum selection clause (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563).

Under the foregoing circumstances, Ski Windham failed to make a prima facie showing that it had a sufficiently close relationship with USSA such that its enforcement of the forum selection clause was foreseeable to the plaintiff by virtue of that relationship (see Bernstein v. Wysoki, 77 AD3d at 252). Accordingly, the Supreme Court should have denied that branch of Ski Windham's motion which was for summary judgment dismissing the complaint insofar as asserted against it based on the forum selection clause, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

Because the Supreme Court directed the dismissal of the complaint insofar as asserted against Ski Windham solely on the ground that the forum selection clause was enforceable by Ski Windham in this action, it did not reach that branch of Ski Windham's motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against it based on the affirmative defense of release (see Llanos v. Shell Oil Co., 55 AD3d 796, 799). That branch of Ski Windham's motion remains pending and undecided (id. at 799). In addition, in light of our determination, the plaintiff's cross motion, in effect, pursuant to CPLR 3211(b) to dismiss the affirmative defense of release insofar as asserted by Ski Windham is no longer academic. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination of the aforementioned pending and undecided branch of Ski Windham's motion and a determination on the merits of the plaintiff's cross motion.

In light of our determination, we need not reach the plaintiff's remaining contentions.

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.

 

Case: Fernandez v. 707, Inc.

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

Date: June 16, 2011

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

Comment: This accident case involves a newly constructed tree well or tree pit, which the City of New York had not yet approved. It still belongs to the City, and the injured accident victim loses.

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RELATED POSTS:

CITY OF NEW YORK, NOT BUILDING OWNER, RESPONSIBLE FOR INJURY IN TREE PIT; SUMMARY JUDGMENT GRANTED    (Posted by Queens accident lawyer Gary E. Rosenberg on June 18, 2011)

BIKE RIDER THROWN BECAUSE OF TREE WELL CAN'T SUE CITY WITHOUT "PRIOR WRITTEN NOTICE"    (Posted by Queens accident lawyer Gary E. Rosenberg on June 8, 2011)

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

TREE LIMB IN N.Y.C.'S CENTRAL PARK FALLS SUDDENLY AND KILLS BABY, INJURES MOTHER    (Posted by Queens accident lawyer Gary E. Rosenberg on June 27, 2010)

FORGET THE DANGERS OF TEXTING WHILE DRIVING; HOW ABOUT TEXTING WHILE WALKING?   (Posted by Queens accident lawyer Gary E. Rosenberg on December 18, 2009)

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Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 22, 2010, which granted defendant 707, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Order, same court and Justice, entered July 22, 2010, which denied defendant Biltmore Contracting, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed enter judgment in Biltmore's favor dismissing the complaint as against it.

707, Inc. (707) obtained a "Builder's Pavement Plan" permit from the New York City Department of Transportation, dated May 3, 2006, to rebuild the sidewalks abutting its Bruckner Boulevard property. By its agent Hagivah, 707 hired Biltmore to perform the work, instructing Biltmore to leave specified sections of the sidewalk open to accommodate tree wells. 707 also obtained a tree planting permit from the New York City Department of Parks & Recreation and hired another company to plant the trees.

Biltmore commenced work on or about August 24, 2006 and completed it on or about September 14, 2006. On October 15, 2006, injured accident victim allegedly was injured when he stepped into a tree well that was not level with the sidewalk. At the time, the City had yet to sign off on the sidewalk, and no trees had been planted. Subsequently, on October 30, 2006, 707's project engineer certified that the sidewalks had been constructed in accordance with the specifications set forth in the Rules and Regulations of the Department of Highways.

Although Administrative Code of the City of New York § 7-210 (eff September 14, 2003) imposes tort liability on property owners who fail to maintain abutting city-owned sidewalks in a reasonably safe condition, 707 cannot be held liable for injured accident victim's injuries by virtue of its status as an abutting landowner because a property owner's responsibility for a sidewalk does not extend to tree wells (see Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521 [2008]; Grier v. 35-63 Realty, Inc., 70 AD3d 772 [2010] ). The motion court correctly rejected injured accident victim's argument that the area where he fell was not a tree well because at the time of the accident the City had yet to "sign off" on the project and no tree had been planted. These considerations do not bear on the character of the area, which the court described as "a square or rectangular dirt area surrounded by cement designed to accommodate one or more trees." Accordingly, 707 cannot be held liable for injured accident victim's injuries unless it affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area (see Vucetovic, 10 NY3d at 520).

A property owner ordinarily is not responsible for the negligence of an independent contractor retained to work upon its property, unless the work is inherently dangerous, or the owner interferes with and assumes control over the work (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668 [1992]; Laecca v. New York Univ., 7 AD3d 415 [2004], lv denied 3 NY3d 608 [2004] ). On its motion for summary judgment, 707 submitted proof that it hired Biltmore to build the sidewalk and tree well. It also submitted the deposition transcript of Biltmore's president who testified that a representative of the owner gave him a layout showing where to leave the tree wells and that the president's uncle was present on a daily basis and supervised the work.

In opposition, injured accident victim failed to raise a triable issue of fact whether any exception to the "independent contractor rule" applied (see Campbell v. HEI Hospitality, LLC, 72 AD3d 860, 861 [2010] ). A senior project manager for Hagivah testified at his deposition that he explained to Biltmore where to place the tree wells, and "that's it." Injured accident victim did not submit any proof that would rebut this or raise an issue whether 707 controlled the method and means of Biltmore's work. That 707's architect or engineer may have drawn up the plans, or that 707 may have inspected the work, does not establish that 707 had supervisory authority (see Haefeli v. Woodrich Eng'g Co., 255 N.Y. 442, 450 [1931] ). "[T]he mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal" ( Goodwin v. Comcast Corp., 42 AD3d 322, 323 [2007]; Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297 [2000] ).

Biltmore made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it owed no duty of care to injured accident victim (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002] ). Biltmore's president testified at his deposition that when Biltmore completed the work, approximately one month before the accident, the tree well was level with the sidewalk. While some of his responses suggested that he was referring to Biltmore's general custom or practice, others addressed the subject tree well. The record further indicates that 707 paid Biltmore's invoice and that its senior project manager had no problem with Biltmore's work.

In opposition, injured accident victim failed to raise a triable issue of fact whether Biltmore created the alleged hazardous condition (Espinal, 98 N.Y.2d at 141-142; Peluso v. ERM, 63 AD3d 1025 [2009] ). Although a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk (Barbitsch v. City of New York, 241 A.D.2d 472 [1997] ), "it would be mere speculation [on the record before us] to conclude that the allegedly dangerous condition which caused the injured accident victim to trip and fall was caused by any affirmative act of negligence by [Biltmore]" (Kleeberg v. City of New York, 305 A.D.2d 549, 550 [2003]; Humphreys v. Veneziano, 268 A.D.2d 461 [2000] ). There is no evidence that Biltmore breached its contractual obligations, or that it assumed a continuing duty to return to the premises after completing its work and remedy any defects that eventually developed there (see Horowitz v. Marel Elec. Servs., 271 A.D.2d 572 [2000]; Long v. Danforth Co., 236 A.D.2d 781 [1997] ).

Case: Progressive Northeastern Insurance Co. v. Vanderpool

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

Date: June 14, 2011

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

Comment: I've written before about whether there's an insurance coverage where an accident might not really be "an accident."

Facts: Driving away from a police officer (Wayne Vanderpool) trying to carry out an arrest warrant, Yvette Pullum hit him with her car, and injured him. This took occurred on November 12, 2005.

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RELATED POSTS:

NEW CASE FROM NEW YORK'S HIGHEST COURT: FOR INSURANCE CLAIM, WHEN IS INJURY FROM A CAR ACCIDENT REALLY AN ACCIDENT OR NOT AN ACCIDENT?    (Posted by Brooklyn injury attorney Gary E. Rosenberg on April 1, 2011)

EIGHT THINGS YOU SHOULD KNOW ABOUT YOUR NEW YORK CAR ACCIDENT-PART ONE - THE FIRST FOUR QUESTIONS      (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 1, 2010)

EIGHT THINGS YOU SHOULD KNOW ABOUT YOUR NEW YORK CAR ACCIDENT-PART TWO - THE SECOND FOUR QUESTIONS    (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 2, 2010)

CAR ACCIDENT? HERE'S WHAT YOU NEED TO KNOW ABOUT YOUR INSURANCE     (Posted by Brooklyn injury attorney Gary E. Rosenberg on February 7, 2010)

AFTER A CAR CRASH: CAN I HANDLE MY INJURY CLAIM MYSELF? (A FREQUENTLY ASKED QUESTION) (Posted by Brooklyn injury attorney Gary E. Rosenberg on January 3, 2010)

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As you might imagine, this added a whole new world of criminal charges against Yvette Pullum to whatever charges were in the warrant already being carried by Officer Vanderpool. Pullum pled guilty to Second Degree Assault for hitting Officer Vanderpool with her car.

Dear Readers, Do you see where this is going? Now it's about insurance.

Officer Vanderpool filed a claim with his automobile insurance carrier, Progressive Insurance, to try to access his Supplemental Underinsured Motorist coverage under the supplemental uninsured/underinsured motorist endorsement on his automobile insurance policy.

Now it's not clear from this decision if Pullum was "underinsured" - meaning her car insurance paid something, and Vanderpool is looking for some additional money from his own personal car insurance policy because of the seriousness of his injuries - or if Pullum was "uninsured" - meaning her car had no insurance and Vanderpool is looking to his own insurance company (Progressive Insurance) for his entire monetary damages from ihs personal injury.

And don't forget, as a cop hurt in the line of duty, Vanderpool is also entitled to Worker's Compensation insurance benefits and, possibly also, a disability retirement depending on how bad he's hurt, which we don't know from this opinion..

Anyway, Vanderpool's insurance carrier, Progressive, disclaimed (refused) coverage, claiming that Vanderpool's injuries were not caused by an "accident," as that term is used in its insurance policy SUM endorsement.

Vanderpool challenged by demanding arbitration.

Progressive Insurance started a lawsuit to permanently stay (freeze) arbitration. After a hearing, the Supreme Court denied the petition and directed the parties to proceed to arbitration. Progressive Insurance appealed.

The appeals court noted:

The Court of Appeals recently held in State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349) that, for the purposes of a SUM endorsement, an occurrence should be viewed from the perspective of the insured, rather than of the tortfeasor. When, from the insured's perspective, the occurrence was " 'unexpected, unusual and unforeseen'," it qualifies as an "accident." Thus, the Court held in Langan that, even though the holder of SUM coverage was the victim of an intentional assault, there had been an "accident" because the assault was unexpected or unintended from the insured's perspective, and SUM coverage was triggered (see Langan, 16 NY3d at 355).

Pullum's guilty plea also enters into the mix.

Second Degree Assault (New York State Penal Law § 120.05[3]) contains as an element that the defendant intended to prevent a police officer from performing a lawful duty and thereby caused the officer to suffer physical injury. It does not contain as an element that the defendant intended to cause physical injury to the officer. This is very important. Because while Pullum intended to interfere with the officer, she did not intend to hurt Vanderpool. So, from both Vanderpool's and Pullum's points of view, this was an accidental injury.

Here, from Vanderpool's perspective, his encounter with Pullum's vehicle was unexpected, unusual, and unforeseen. And it seems that Pullum denies intending to hit Vanderpool. Consequently, whatever Pullum's intent, the occurrence was an "accident" within the meaning of the SUM endorsement of Vanderpool's insurance policy with Progressive.

Held: Lower court's decision affirmed; the petition was correctly denied and the parties were directed to proceed to arbitration.

NEWS from CPSC

U.S. Consumer Product Safety Commission

Napa Home & Garden Recalls NAPAfire and FIREGEL Pourable Gel Fuel Due to Fire and Burn Hazards

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

Comment: I just recently blogged about this product. It only recently hit the press, so the CPSC moved with lightning speed to get Firegel recalled.

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RELATED POSTS:

"FIREGEL" A DANGEROUS PRODUCT, EXPLOSIVE FIREBOMB BURNS CONSUMERS    (Posted by Brooklyn accident attorney Gary E. Rosenberg on June 12, 2011)

RECALL OF DEHUMIDIFIERS THAT CATCH FIRE AND CREATE A BURN HAZARD     (Posted by Brooklyn accident attorney Gary E. Rosenberg on December 24, 2009)

WILLIAMS-SONOMA RECALLS BABY BOTTLE WARMERS DUE TO DANGER OF BURNS   (Posted by Brooklyn accident attorney Gary E. Rosenberg on August 26, 2010)

PRODUCT RECALLS; ALL DUE TO ACCIDENTAL RISK OF INJURY DUE TO FIRE AND BURN HAZARD    (Posted by Brooklyn accident attorney Gary E. Rosenberg on December 19, 2010)

LEAD PAINT LEADS TO RECALL OF WOODEN TOYS    (Posted by Brooklyn accident attorney Gary E. Rosenberg on January 10, 2010)

　

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WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Pourable NAPAfire and FIREGEL Gel Fuel bottles and jugs

Units: About 460,000 bottles and jugs

Distributor: Napa Home & Garden, of Duluth, Ga.

Hazard: The pourable gel fuel can ignite unexpectedly and splatter onto people and objects nearby when it is poured into a firepot that is still burning. This hazard can occur if the consumer does not see the flame or is not aware that the firepot is still ignited. Fuel gel that splatters and ignites can pose fire and burn risks to consumers.

Incidents/Injuries: Napa is aware of 37 reports of incidents, including 23 burn injuries to consumers.

Description: The product is a clear, pourable gel fuel packaged in clear one-quart plastic bottles and one-gallon plastic jugs and sold in non-scented and citronella scents. The fuel is poured into a stainless steel cup in the center of firepots or other decorative lighting devices and ignited.

Sold at: Bed Bath & Beyond, Shopko, Restoration Hardware, specialty and gift shops, furniture stores, and home and garden stores nationwide, as well as through Amazon.com, home and garden catalogs, and home decorators and landscape architects between December 2009 and June 2011 for between $5 and $78.

Remedy: Consumers should immediately stop using the pourable gel fuel in firepots and return all bottles or jugs to the retailer where the consumer purchased the fuel for a full refund. A retrofit for the Napa brand firepots is being evaluated and may be available in the near future.

Consumer Contact: For additional information, call Napa Home & Garden at (888) 893-2323 between 9 a.m. and 6 p.m. ET Monday through Friday, visit Napa's website at http://www.napahomeandgarden.com/ or write to Napa, 3270 Summit Ridge Parkway, Suite 240, Duluth, GA 30096-1617.

RECALL PICKED UP AND REPORTED ON BY THE NEW YORK TIMES:

A maker of pourable fuel gel for decorative firepots is recalling about a half-million bottles after learning of dozens of accidents, including two near-fatal ones in New York, the Consumer Product Safety Commission announced on Wednesday.

In these and other cases, witnesses and victims likened the fuel gel to napalm, saying it exploded in a flash, stuck to clothing and would not stop burning even when a victim dropped to the ground and rolled or the flames were covered with a blanket.

Reports of severe burn accidents connected to the use of gel-fueled firepots, a relatively new product, have surfaced in states like California, Florida and Indiana since The New York Times first reported on June 11 on the two accidents in New York. One involved a 14-year-old Riverhead boy who remains in a coma in a Long Island hospital.

Products liability lawyers, meanwhile, have pounced on the recent burn cases. Napa Home and Garden is being sued in federal court in Spartanburg, S.C., by a Florida couple who were seriously wounded there in May. The woman, Barbara Satterfield, remains in the intensive care unit at a burn center in Augusta, Ga., according to the lawsuit, which was filed on Tuesday.

Other companies make and distribute fuel gel products. BirdBrain Inc., a competing manufacturer based in Ypsilanti, Michigan, is being sued by the parents of teenage New Jersey girl, an 8-year-old Maryland boy and a 3-year-old Illinois girl, each of whom spent weeks in the hospital recovering from severe burns last year.

The CPSC recall does not extend to BirdBrain products, but a commission spokesman said its investigation into other companies and burn cases was "open and active."

Case: Fernandez v. 707, Inc.

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

Date: June 16, 2011

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

Comment: This accident case involves a newly constructed tree well or tree pit, which the City of New York had not yet approved. It still belongs to the City, and the injured accident victim loses.

RELATED POSTS:

CITY OF NEW YORK, NOT BUILDING OWNER, RESPONSIBLE FOR INJURY IN TREE PIT; SUMMARY JUDGMENT GRANTED   (Posted by Brooklyn injury lawyer Gary E. Rosenberg on June 18, 2011)

BIKE RIDER THROWN BECAUSE OF TREE WELL CAN'T SUE CITY WITHOUT "PRIOR WRITTEN NOTICE"   (Posted by Brooklyn injury lawyer Gary E. Rosenberg on June 8, 2011)

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

TREE LIMB IN N.Y.C.'S CENTRAL PARK FALLS SUDDENLY AND KILLS BABY, INJURES MOTHER    (Posted by Brooklyn injury lawyer Gary E. Rosenberg on June 27, 2010)

FORGET THE DANGERS OF TEXTING WHILE DRIVING; HOW ABOUT TEXTING WHILE WALKING?    (Posted by Brooklyn injury lawyer Gary E. Rosenberg on December 18, 2009)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 22, 2010, which granted defendant 707, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Order, same court and Justice, entered July 22, 2010, which denied defendant Biltmore Contracting, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed enter judgment in Biltmore's favor dismissing the complaint as against it.

707, Inc. (707) obtained a Builder's Pavement Plan permit from the New York City Department of Transportation, dated May 3, 2006, to rebuild the sidewalks abutting its Bruckner Boulevard property. By its agent Hagivah, 707 hired Biltmore to perform the work, instructing Biltmore to leave specified sections of the sidewalk open to accommodate tree wells. 707 also obtained a tree planting permit from the New York City Department of Parks & Recreation and hired another company to plant the trees.

Biltmore commenced work on or about August 24, 2006 and completed it on or about September 14, 2006. On October 15, 2006, injured accident victim allegedly was injured when he stepped into a tree well that was not level with the sidewalk. At the time, the City had yet to sign off on the sidewalk, and no trees had been planted. Subsequently, on October 30, 2006, 707's project engineer certified that the sidewalks had been constructed in accordance with the specifications set forth in the Rules and Regulations of the Department of Highways.

Although Administrative Code of the City of New York § 7 210 (eff September 14, 2003) imposes tort liability on property owners who fail to maintain abutting city-owned sidewalks in a reasonably safe condition, 707 cannot be held liable for injured accident victim's injuries by virtue of its status as an abutting landowner because a property owner's responsibility for a sidewalk does not extend to tree wells (see Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521 [2008]; Grier v. 35 63 Realty, Inc., 70 AD3d 772 [2010] ). The motion court correctly rejected injured accident victim's argument that the area where he fell was not a tree well because at the time of the accident the City had yet to sign off on the project and no tree had been planted. These considerations do not bear on the character of the area, which the court described as a square or rectangular dirt area surrounded by cement designed to accommodate one or more trees. Accordingly, 707 cannot be held liable for injured accident victim's injuries unless it affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area (see Vucetovic, 10 NY3d at 520).

A property owner ordinarily is not responsible for the negligence of an independent contractor retained to work upon its property, unless the work is inherently dangerous, or the owner interferes with and assumes control over the work (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668 [1992]; Laecca v. New York Univ., 7 AD3d 415 [2004], lv denied 3 NY3d 608 [2004] ). On its motion for summary judgment, 707 submitted proof that it hired Biltmore to build the sidewalk and tree well. It also submitted the deposition transcript of Biltmore's president who testified that a representative of the owner gave him a layout showing where to leave the tree wells and that the president's uncle was present on a daily basis and supervised the work.

In opposition, injured accident victim failed to raise a triable issue of fact whether any exception to the independent contractor rule applied (see Campbell v. HEI Hospitality, LLC, 72 AD3d 860, 861 [2010] ). A senior project manager for Hagivah testified at his deposition that he explained to Biltmore where to place the tree wells, and that's it. Injured accident victim did not submit any proof that would rebut this or raise an issue whether 707 controlled the method and means of Biltmore's work. That 707's architect or engineer may have drawn up the plans, or that 707 may have inspected the work, does not establish that 707 had supervisory authority (see Haefeli v. Woodrich Eng'g Co., 255 N.Y. 442, 450 [1931] ). [T]he mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal ( Goodwin v. Comcast Corp., 42 AD3d 322, 323 [2007]; Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297 [2000] ). Biltmore made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it owed no duty of care to injured accident victim (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002] ). Biltmore's president testified at his deposition that when Biltmore completed the work, approximately one month before the accident, the tree well was level with the sidewalk. While some of his responses suggested that he was referring to Biltmore's general custom or practice, others addressed the subject tree well. The record further indicates that 707 paid Biltmore's invoice and that its senior project manager had no problem with Biltmore's work.

In opposition, injured accident victim failed to raise a triable issue of fact whether Biltmore created the alleged hazardous condition (Espinal, 98 N.Y.2d at 141 142; Peluso v. ERM, 63 AD3d 1025 [2009] ). Although a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk (Barbitsch v. City of New York, 241 A.D.2d 472 [1997] ), it would be mere speculation [on the record before us] to conclude that the allegedly dangerous condition which caused the injured accident victim to trip and fall was caused by any affirmative act of negligence by [Biltmore] (Kleeberg v. City of New York, 305 A.D.2d 549, 550 [2003]; Humphreys v. Veneziano, 268 A.D.2d 461 [2000] ). There is no evidence that Biltmore breached its contractual obligations, or that it assumed a continuing duty to return to the premises after completing its work and remedy any defects that eventually developed there (see Horowitz v. Marel Elec. Servs., 271 A.D.2d 572 [2000]; Long v. Danforth Co., 236 A.D.2d 781 [1997] ).

Court: Supreme Court, Nassau County, New York

Case: Halio v. IOD Incorporated

Date: June 14, 2011

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

Comment: Interesting case. When attorneys take a personal injury or accident case, they usually have to obtain the injured person's medical records. Used to be, a hospital or doctor could charge as much as it liked. Businesses were created that made a profit on getting and selling patient medical records.

Then the accident lawyers woke up and got New York State Public Health Law Section 18 passed. That law limited the fee that could be charged for records to 75¢ pert page.

This lawsuit is by defendants in a personal injury action who were being charged $1.50 per page and didn't want to pay it. They lost the case. Too bad they didn't have a Brooklyn accident lawyer, like me.

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RELATED POSTS:

AT LEAST THE DOG DIDN'T EAT HER HOMEWORK    (Posted by Brooklyn accident lawyer Gary E. Rosenberg on November 15, 2007)

PREVENT IDENTITY THEFT   (Posted by Brooklyn accident lawyer Gary E. Rosenberg on November 24, 2007)

AFFIRMING PHYSICIANS' REPORTS    (Posted by Brooklyn accident lawyer Gary E. Rosenberg on December 17, 2007)

MANHATTAN LAWYER ADMITS USING A RUNNER    (Posted by Brooklyn accident lawyer Gary E. Rosenberg on December 16, 2007 )

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Petitioners move to compel Respondent to charge no more than 75¢ per page for copies of medical records pursuant to Public Health Law § 18(2)(e). Respondent argues that Petitioners do not fit into the definition of a "qualified person" under Public Health Law § 18(1)(g), and therefore the 75¢ per page limit does not apply.

 

The petition is denied.

Petitioners are defendants in a personal injury action in the Supreme Court, Nassau County under index number 14334/2010 entitled Frank Villegas v. Barbara Halio and Solomon Halio. In that action, the plaintiff (hereinafter "Villegas") alleges injuries frmo an accident while handling a chainsaw at Petitioner's residence. In defending the underlying action Petitioners' submitted an authorization signed by Villegas requesting Villegas's medical records. In response to the request Respondent, acting on behalf of the medical provider, Nassau University Medical Center, requested a fee of $1.50 per page for 792 pages on top of a basic fee of $25.00 and shipping costs of $10.65 for a total fee of $1,223.65.

Public Health law § 18(2)(e) provides that a "qualified person" shall have access to medical records and that the medical provider "may impose a reasonable charge for ... copies, not exceeding the costs incurred by such provider," but, "the reasonable charge for paper copies shall not exceed seventy-five cents per page." Public Health Law § 18(1)(g) defines a "qualified person" as, inter alia, "any properly identified subject; ... or an attorney representing a qualified person ..." Public Health law § 18(1)(h) defines "subject" as "an individual concerning whom patient information is maintained or possessed by a health care provider."

It is clear from the plain language of the statute that Villegas is a "qualified person" as he is the "individual concerning whom patient information is maintained or possessed by a health care provider". As such, copies of medical records requested by Villegas cannot cost more than 75¢ per page. Similarly, it is clear that an attorney representing Villegas cannot be charged more than 75¢ per copy. The question is whether an attorney acting on behalf of a third party who is authorized by the "subject" to receive copies of the subject's medical records is entitled to the 75¢ per page maximum copy charge because the authorization came from a "qualified person".

In support of their contention that authorization by a "qualified person" subjects the medical provider to the 75¢ per page maximum copy charge Petitioners cite McCrossan v. Buffalo Heart Group, 265 A.D.2d 875 (4th Dept.1999). There, as here, the attorneys representing defendants in a negligence action were authorized by the plaintiff to obtain the plaintiff's medical records and the medical provider charged more than 75¢ per page for the copies. The Fourth Department, citing Casillo v. St. John's Episcopal Hosp., 151 Misc.2d 420 (Supreme, Suffolk 1992), held that despite the fact that neither the medical provider nor its attorney is a "qualified person" the medical provider is subject to the 75¢ per page maximum copy charge because the plaintiff, a "qualified person", authorized the release of the records to a third party.

In opposition, Respondent cites Davenport v. County of Nassau, 245 A.D.2d 331 (2nd Dept.1997), in which the Court, in a similar situation, held that attorneys representing defendants in a negligence action were not entitled to the 75¢ per page maximum charge because they did not meet the definition of a "qualified person". Petitioners argue that Davenport v. County of Nassau should not be followed as the facts are different because there the medical records were subpoenaed. As such, according to Petitioners, McCrossan v. Buffalo Heart Group is the only case on point. The Court disagrees.

A review of the decision and the Briefs in Davenport v. County of Nassau, supra, (1997 WL 34663982; 1997 WL 34663981) establishes that the subpoena was not material to the decision. The request for medical records was originally made by the attorneys for the defendants by sending the medical provider an authorization signed by the plaintiff. It was only after the medical provider refused to supply the records because the attorneys for the defendants would not pay more than 75¢ per page that a subpoena was served. Therefore, Davenport v. County of Nassau is on point since it found the subpoena to be unnecessary. The result is a conflict between the Second and Fourth Departments.

There is some persuasive value in the Fourth Department's reasoning that because a "qualified person" authorized the release of the medical records the third party receiving the records should be entitled to the 75¢ per page copy maximum. Further, it may seem inequitable to charge more to a defendant in this situation. However, the Second Department's reasoning more closely follows the constructive history of Public Health Law § 18. Further, and in any event, this Court is bound by the Second Department's holding.

The original construction of Public Health law § 18 did not include attorneys as a "qualified person". The case cited by the Fourth Department and also relied upon by Petitioners, Casillo v. St. John's Episcopal Hosp., supra, was decided prior to the June 30, 1992 amendment that includes the language referenced hereinabove regarding attorneys. The Court in Casillo v. St. John's Episcopal Hosp. held that an attorney authorized by a patient to obtain the patient's medical records is a "qualified person". However, the decision limits the definition to attorneys acting on behalf of the patient.

Subsequent to the Casillo v. St. John's Episcopal decision the legislature amended Public Health Law § 18 to include "an attorney representing a qualified person" (emphasis added) as a "qualified person". By omitting any language referencing attorneys acting on behalf of a third party in a lawsuit it appears that the legislature did not intend to include such attorneys in the definition. As such, attorneys acting on behalf of defendants are not entitled to the 75¢ per page maximum charge despite the fact that a "qualified person" authorized receipt of the records.

Accordingly, Petitioner's petition is denied.

Case: Colon v. Vincent Plumbing & Mechanical Co.

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

Entered: June 16, 2011

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

Comment: Bronx accident victims screwed by No-Fault "serious injury" threshold and lose defense summary judgment motion. One plaintiff (Colon) had knee surgery. Her orthopedic surgeon - who carried out the surgery - found problems with "limited range of motion" in the knee but because he did not say HOW he made this diagnosis, his word didn't count. Thus, she hasn't shown her injury was from the accident and the court throws out her case.

The other plaintiff, 71 year-old Puente, showed a lot of wear and tear-type injuries (degenerative) and the court found that he, too, didn't make out an injury related to this accident.

The moral of this story? Soft tissues accident and injury cases have to be carefully and thoroughly documented by treating doctors. And you better have an experienced personal injury accident lawyer to handle your case.

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RECENT POSTS:

SUMMARY JUDGMENT MOTION DENIED ON NO-FAULT THRESHOLD; BURDEN ON DEFENSE TO SHOW ACCIDENT VICTIM'S INJURIES WERE OLD       (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on June 17, 2011)

NEW YORK'S "SERIOUS INJURY" REQUIREMENT--A RECENT CAR ACCIDENT CASE THAT THE JURY BLEW (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on March 5, 2011)

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

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

NO-FAULT THRESHOLD BOOBY TRAP     (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on November 10, 2009)　

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered July 14, 2010, which denied defendants Almonte and Collado's motion for summary judgment dismissing the complaint on the threshold issue of serious injury under Insurance Law §§ 5102 and 5104, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of said defendants dismissing the complaint as against them.

Defendants established prima facie their entitlement to judgment as a matter of law by submitting medical evidence that plaintiffs did not sustain a serious injury and that any injuries were not caused by the accident.

With respect to Puente, defendants met their initial burden by submitting the report of a radiologist who opined that the MRI of Puente's lumbar spine revealed regional discogenic changes representing longstanding wear, tear and degenerative changes unrelated to the accident and consistent with Puente's age (71 years). An MRI of the right knee showed no evidence of acute or recent injury; it showed significant and advanced degenerative changes involving all three joint compartments, menisci and anterior cruciate ligament, representing chronic wear-and-tear degenerative change unrelated to the accident. A neurologist found some limited range of motion in the cervical spine, "observed to be limited by volitional guarding." The motor examination of the knee was normal. An orthopedic surgeon found normal ranges of motion in the lumbar spine and right knee.

In opposition, Puente failed to present medical evidence sufficient to raise a triable issue. His treating doctor did not identify any serious injury; his diagnoses included, as relevant here, possible L4-5 sciatica discogenic disease and SP lumbar strain (severe). The doctor did not make any reference to the claimed injury to the right knee or address the fact that, as noted in the doctor's report, Puente had complained of lower back pain eight months before the accident.

Moreover, while his report indicated some limitation in back motion, the doctor failed to indicate the normal ranges of motion for the areas tested, and did not provide an objective assessment of Puente's claimed range of motion limitations.

Regarding plaintiff Colon, a radiologist found that an MRI of the left knee revealed no evidence of acute or recent injury and no evidence of traumatic tear or rupture of the regional ligaments, tendons or menisci. The radiologist found degenerative changes of the lateral meniscus and patella. An MRI of the cervical spine revealed regional discogenic changes unrelated to the accident. A neurologist found some limited range of motion in the cervical spine and normal range of motion in the knee, and an orthopedist found normal range of motion in the cervical spine and knee.

In opposition, plaintiffs did not submit any medical evidence indicating that Colon's claimed cervical spine injury was causally related to the accident. Regarding the knee injury, while the orthopedic surgeon who performed arthroscopic surgery on Colon to repair a torn meniscus submitted a report indicating that the injury was the result of the accident, that Colon had "limited range of motion" in the knee, and that she could fully extend the knee but flex was limited to about 115/135 degrees, the surgeon "fail[ed] to identify or describe the objective medical tests employed in measuring the alleged restrictions in range of motion." "Nor did he explain the significance of his findings, or provide a sufficient description of the qualitative nature of the limitations based on the normal function and use of the knee." Thus, Colon failed to raise any issue of fact under the permanent consequential limitation and significant limitation categories of Insurance Law § 5102(d).

Regarding plaintiffs' 90/180-day claims, defendants appropriately relied on plaintiffs' deposition testimony. Puente testified that he was not confined to home or bed for more than a brief period of time, "negat[ing] his chance of establishing a 90/180-day serious injury claim under section 5102(d)." As for Colon, the only evidence in the record on this issue is that she missed some days of work. Even if she had missed 90 days of work, that would not be determinative. Her inconsistent testimony regarding how much time she was out of work as a beautician in her beauty salon, coupled with the absence of any other evidence that she was prevented from performing substantially all of her usual and customary daily activities for the requisite period, is insufficient to support her claim.

Case: Garbowski v. Hudson Valley Hospital Center

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

Date: June 7, 2011

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

Comment: This is a medical malpractice case for developmental and neurological injury to a new-born baby. The pregnant plaintiff had gestational diabetes and was taken into the hospital so labor could be induced using Pitocin. Due to abnormalities in the fetus's heart rate, the baby was delivered by C-Section.

On defendants' summary judgment motion, The Court knocked out some of the medical malpractice victims' claims, and let some stand.

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RELATED POSTS:

NO MEDICAL MALPRACTICE WHERE CANCER VICTIM REFUSED TESTS; DOCTOR WINS SUMMARY JUDGMENT     (Posted by Brooklyn Queens medical malpractice injury attorney Gary E. Rosenberg on May 29, 2011)

SHE'S 20 YEARS-OLD AND DIED FOR BEAUTY, TRYING TO GET A BIGGER BOOTY    (Posted by Brooklyn Queens medical malpractice injury attorney Gary E. Rosenberg on February 10, 2011)

BROOKLYN PERSONAL INJURY ATTORNEY - MEDICAL MALPRACTICE    (Posted by Brooklyn Queens medical malpractice injury attorney Gary E. Rosenberg on October 20, 2010)

200 PATIENTS WHOSE HEART TESTS WERE NEVER REVIEWED BY DOCTORS DIED IN NEW YORK CITY HOSPITAL     (Posted by Brooklyn Queens medical malpractice injury attorney Gary E. Rosenberg on May 29, 2010)

CALL IT AN ACCIDENT OR CALL IT MEDICAL MALPRACTICE; NEW YORK CITY HOSPITAL INJURES ELDERLY PATIENT       (Posted by Brooklyn Queens medical malpractice injury attorney Gary E. Rosenberg on April 4, 2010)

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The plaintiffs commenced this medical malpractice action against, among others, Dr. Kalinsky, Dr. Lasser, and the hospital, alleging that various deviations from accepted medical practice by these defendants in prenatal care, during labor and delivery, and in treating the infant plaintiff after birth proximately caused the infant plaintiff's neurological and developmental injuries. Thereafter, each of these defendants moved for summary judgment dismissing the complaint insofar as asserted against each of them.

The defendant Jay Kalinsky and his practice, the defendant Obstetrics and Gynecology Associates, provided prenatal treatment to the medical malpractice plaintiff Stephanie Garbowski during her pregnancy in 2001, which was complicated by a diagnosis of gestational diabetes. In accordance with his standard practice of treatment for patients with gestational diabetes, Dr. Kalinsky made the decision to induce labor at the defendant Hudson Valley Hospital Center which involved the administration of Pitocin, a labor-inducing medication that required electronic monitoring of the fetal heart rate. During labor, a number of late decelerations in the fetal heart rate were detected, and Dr. Kalinsky made the decision to deliver the infant plaintiff by cesarean section. The defendant Michael Lasser was the attending pediatrician during the infant plaintiff's delivery and hospitalization and provided care and treatment to the medical malpractice infant plaintiff in the months after his birth.

The Supreme Court denied those branches of Dr. Kalinsky's motion which were for summary judgment dismissing the complaint insofar as asserted against him to the extent the complaint alleges a failure to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section, but otherwise granted the motion for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court also denied the hospital's motion as to the plaintiffs' cause of action alleging a failure on the part of its nursing staff to continually monitor the fetal heart rate during the administration of Pitocin, but otherwise granted the motion for summary judgment dismissing the remainder of the complaint insofar as asserted against it. The Supreme Court granted Dr. Lasser's motion for summary judgment dismissing the complaint insofar as asserted against him. The plaintiffs appeal, and Dr. Kalinsky and the hospital separately cross-appeal. We affirm.

"On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Heller v. Weinberg, 77 AD3d at 622-623; see Stukas v. Streiter, 83 AD3d at 24; Dolan v. Halpern, 73 AD3d at 1118). "The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage" ( Heller v. Weinberg, 77 AD3d 622, 622; see Stukas v. Streiter, 83 AD3d 18; Dolan v. Halpern, 73 AD3d 1117, 1118). In opposition, "a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact" ( Deutsch v. Chaglassian, 71 AD3d 718, 719; see Stukas v. Streiter, 83 AD3d at 24; Brady v Westchester County Healthcare Corp., 78 AD3d 1097, 1098). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325; see Deutsch v. Chaglassian, 71 AD3d at 719).

The hospital established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, an expert affirmation asserting that the Hospital nursing staff did not deviate from accepted standards of medical practice and that, in any event, any departure was not the proximate cause of the infant plaintiff's injuries. In opposition, the plaintiffs' two medical experts raised a triable issue of fact by asserting that the nursing staff failed to continuously monitor the fetal heart rate during the administration of Pitocin, and that this deviation from accepted medical practice proximately caused the infant plaintiff's injuries (see Costello v. Kirmani, 54 AD3d 656, 657). However, the affirmations of the plaintiffs' experts, including the entirety of an affirmation from a registered nurse, were otherwise conclusory and failed to address the specific assertions of the hospital's expert with respect to the remaining theories of liability asserted against it. Accordingly, the Supreme Court properly granted the hospital's motion for summary judgment dismissing the complaint insofar as asserted against it except to the extent that the complaint alleges a failure to continually monitor the fetal heart rate.

Here, Dr. Kalinsky established his prima facie entitlement to judgment as a matter of law by submitting, inter alia, his deposition testimony and his affidavit, in which he asserted that he did not deviate from accepted standards of medical practice (see Joyner-Pack v. Sykes, 54 AD3d 727, 729; Thomas v. Richie, 8 AD3d 363, 364), and an affirmation from an expert who opined that the cause of the infant plaintiff's injuries was genetically based and, thus, any departure from accepted standards of medical practice was not the proximate cause of the injuries. However, in opposition, the plaintiffs raised triable issues of fact by submitting affirmations of two physicians asserting that Dr. Kalinsky failed to continuously monitor the fetal heart rate during the administration of Pitocin and failed to initiate an emergent C-section rather than an urgent C-section, and that these deviations from accepted medical practice proximately caused the infant plaintiff's injuries (see Brady v Westchester County Healthcare Corp., 78 AD3d at 1099; Feinberg v. Feit, 23 AD3d 517, 519; Erbstein v. Savasatit, 274 A.D.2d 445, 445-446; cf. Shectman v. Wilson, 68 AD3d 848, 849-850). Contrary to the plaintiffs' contention, however, their expert affirmations were otherwise conclusory and failed to address the specific assertions of Dr. Kalinsky with respect to the remaining theories of liability asserted against him (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 325; Graziano v. Cooling, 79 AD3d 803, 804-805). Accordingly, the Supreme Court properly granted those branches of Dr. Kalinsky's motion which were for summary judgment dismissing the complaint insofar as asserted against him except to the extent that the complaint alleges a failure by Dr. Kalinsky to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section.

Dr. Lasser established his prima facie entitlement to judgment as a matter of law by submitting, inter alia, an expert affirmation asserting that he did not deviate from accepted standards of medical practice and that, in any event, any departure was not the proximate cause of the infant plaintiff's injuries. In opposition, the plaintiffs failed to raise a triable issue of fact with respect to any departure from accepted standards of medical practice on the part of Dr. Lasser, as their expert in pediatrics and neurology offered conclusory and unsubstantiated allegations of malpractice (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 325; Simmons v. Brooklyn Hosp. Ctr., 74 AD3d 1174, 1178; Ramsay v. Good Samaritan Hosp., 24 AD3d 645, 647). Accordingly, the Supreme Court properly granted Dr. Lasser's motion for summary judgment dismissing the complaint insofar as asserted against him.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated February 3, 2010, as granted those branches of the motion of the defendants Obstetrics and Gynecology Associates and Jay Kalinsky which were for summary judgment dismissing the complaint insofar as asserted against them except to the extent the complaint alleges a failure by those defendants to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section, granted those branches of the motion of the defendant Hudson Valley Hospital Center which were for summary judgment dismissing the complaint insofar as asserted against it except to the extent the complaint alleges a failure by that defendant to continually monitor the fetal heart rate, and granted the motion of the defendant Michael Lasser for summary judgment dismissing the complaint insofar as asserted against him, the defendant Hudson Valley Hospital Center cross-appeals from so much of the same order as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it to the extent the complaint alleges a failure to continually monitor the fetal heart rate, and the defendants Obstetrics and Gynecology Associates and Jay Kalinsky separately cross-appeal from so much of the same order as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them to the extent the complaint alleges a failure by those defendants to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendant Michael Lasser, payable by the plaintiffs.

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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.

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

Case: Vellios v. Green Apple

Date: May 31, 2011

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

Comment: Let's get this straight once and for all, people. A tree well or tree pit is a cut-out in the sidewalk, found all over New York City's boroughs - Queens, Brooklyn, Bronx, etc. - where trees are planted. Now, repeat after me. "Tree well are owned by the City of New York, not the owner of the adjacent house or building." Unless the homeowner does something special to make the tree well more dangerous, such as putting up a little fence or placing some slippery bricks down, the homeowner or building owner is not liable or responsible if there is an accident.

For cases like the one discussed below, I blame lawyer stupidity. This accident happened in Brooklyn. The accident victim-plaintiff caught the front wheels of his walker in a tree well. Are they kidding? I must say, cases like this give us accident and injury lawyers a bad name. Really. And they waste the judges' time.

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RELATED POSTS:

BIKE RIDER THROWN BECAUSE OF TREE WELL CAN'T SUE CITY WITHOUT "PRIOR WRITTEN      NOTICE" (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on June 8, 2011)

INJURED WHEN STAIRS COLLAPSE, ACCIDENT VICTIM CAN'T SUE: NO NOTICE OF DEFECT    (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 6, 2011)

FORGET THE DANGERS OF TEXTING WHILE DRIVING; HOW ABOUT TEXTING WHILE WALKING?    (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on December 18, 2009)

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

TREE LIMB IN N.Y.C.'S CENTRAL PARK FALLS SUDDENLY AND KILLS BABY, INJURES MOTHER     (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on June 27, 2010)

　

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated October 16, 2009, which granted the motion of the defendants Carmine Pellone and Rosemary Pellone, and the cross motion of the defendant Green Apple, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

On June 23, 2006, the plaintiff was walking with the aid of a walker when the front wheels of that walker went into a tree well and he lost his balance and fell, allegedly sustaining injuries. The accident occurred in front of premises located on Kings Highway in Brooklyn, which was owned by the defendants Carmine Pellone and Rosemary Pellone (hereinafter the Pellones) and occupied by the defendant Green Apple (hereinafter Green Apple), a commercial tenant.

In support of their motion and cross motion for summary judgment, the Pellones and Green Apple, respectively, established their prima facie entitlements to judgment as a matter of law by demonstrating that they had no duty to maintain the tree well, which is owned by the City of New York (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 860 N.Y.S.2d 429, 890 N.E.2d 191; see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court correctly granted the motion and cross motion for summary judgment.

Case: Messiana v. Eleni Drivas

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

Date:   June 7, 2011

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

Comment: This is another defense at summary judgment to try to throw out (dismiss) the accident victim's case for failure to breach New York's No-Fault "serious injury" threshold.

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ACCIDENT-VICTIM PEDESTRIAN KILLED BY CAR NEVER REGAINED CONSCIOUSNESS SO CAN'T SUE FOR "CONSCIOUS PAIN AND SUFFERING    (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on May 23, 2011)

COWORKER BACKS UP TRUCK INTO HIGHWAY WORKER IN FATAL QUEENS ACCIDENT    (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on May 18, 2011)

2 MOTOR VEHICLE ACCIDENT STORIES FROM BROOKLYN    (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on May 7, 2011)

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

NEW YORK'S "SERIOUS INJURY" REQUIREMENT--A RECENT CAR ACCIDENT CASE THAT THE JURY BLEW (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on March 5, 2011)

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FIRST, the defense made its case.

The defendants established, prima facie, that the plaintiff Daniel Messiana (hereinafter the appellant), who allegedly sustained injuries to, inter alia, the lumbosacral and cervical regions of his spine as a result of the subject accident, did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of that accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to the lumbosacral and cervical regions of the appellant's spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Rodriguez v. Huerfano, 46 AD3d 794, 795).

SECOND, the accident victim returned the defense volley.

However, in opposition, the appellant submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral and cervical regions of his spine constituted serious injuries under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Dixon v. Fuller, 79 AD3d 1094, 1094-1095). He also provided an adequate explanation for the cessation of his medical treatment (see Abdelaziz v. Fazel, 78 AD3d 1086).

THIRD, the defense tried to be cute. It tried to raise an issue as to the accident victim's prior (old) injury. The defense tried to stick the "burden" on the accident victim to show that the injury benig sued for in THIS case were recent and related to THIS accident. The appeals court showed some good sense and wasn't buying. It found that the defense had to show that the injuries being sued for in this case were old. Only then would the accident victim have to show the injuries wer recent. See the court's language, below:

Contrary to the determination of the Supreme Court, in opposing the defendants' motion, the appellant was not obligated to "address" the issue of whether the alleged injuries to the lumbosacral and cervical regions of his spine were caused by the subject accident, as opposed to a prior accident he was involved in, in which he sustained injuries to those regions. As the appellant pointed out when moving for leave to reargue, the defendants did not argue, or submit any evidence on their motion for summary judgment to establish, that the alleged injuries to those regions were caused by the prior accident. Thus, the defendants did not make a prima facie showing that those alleged injuries were caused by the prior accident (see Hightower v. Ghio, 82 AD3d 934, 935). "Therefore, the burden did not shift to the [appellant] to raise a triable issue of fact as to whether [those alleged] injuries were caused by the subject accident" (id. at 935; see Stukas v. Streiter, 83 AD3d 18, 24-25; cf. Franchini v. Palmieri, 1 NY3d 536).

Case: In the Matter of AIU Insurance Company v. Delroy Hibbert, et al.

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

Filed:  June 7, 2011

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

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RELATED POSTS:

2 HIT & RUN ACCIDENTS - ONE ACCIDENT IN QUEENS, ONE ACCIDENT IN BROOKLYN     (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on May 22, 2011)

2 MOTOR VEHICLE ACCIDENT STORIES FROM BROOKLYN    (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on May 7, 2011)

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

TRUCK JUMPS CURB IN BROOKLYN, INJURING DRIVER AND TWO CHILDREN    (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on December 23, 2007)

CHILD SUFFERS CRITICAL BRAIN INJURY IN BROOKLYN HIT-AND-RUN ACCIDENT     (Posted by Brooklyn Queens accident injury attorney Gary E. Rosenberg on May 17, 2008)

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On January 31, 2004, the accident victim-respondents were involved in an automobile accident when the vehicle in which they were traveling was struck in the rear by a motor vehicle, which was pushed into the accident victims' vehicle by a vehicle insured by nonparty Travelers Insurance Company (hereinafter Travelers).

The accident victims' vehicle was insured under a policy of insurance issued by the petitioner AIU Insurance Company (hereinafter AIU) to the respondent Delroy Hibbert. The other passengers in the insured vehicle at the time of the accident, which includes two of the other accident victims, were considered "insured" persons under the provisions of the AIU policy.

Travelers, as the tortfeasor's insurer, paid $15,000 to respondent Gina Stewart, $5,000 to the respondent Delroy Hibbert, and $5,000 to the respondent Phyllis Hibbert. It also paid $25,000 to another passenger in the insured vehicle, nonparty Sharon Stewart, exhausting its bodily injury liability coverage of $50,000.

Subsequently, the accident victims made a demand for arbitration of their claims under the AIU policy's endorsement for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits in the total sum of $50,000. The AIU policy was underwritten with SUM benefits in the amount of $25,000 per person and $50,000 per accident, which was equal to its bodily injury liability limits.

AIU filed a petition which sought, in part, to permanently stay the arbitration. The Supreme Court denied that branch of AIU's petition seeking to stay the arbitration. We reverse.

Since the AIU policy had identical bodily injury liability policy limits as the Travelers policy issued to the tortfeasor, the tortfeasor's vehicle was not underinsured (see Insurance Law § 3420[f][2][A]; Matter of Allstate Ins. Co. v. Rivera, 12 NY3d 602, 607-608; Matter of Prudential Prop. & Cas. Co. v Szeli, 83 N.Y.2d 681, 684). Payment by Travelers to the other passenger in the insured vehicle in the amount of $25,000 did not render the tortfeasor's vehicle "underinsured" for the purpose of triggering the AIU SUM endorsement since the other passenger was also an "insured" under the AIU policy and not an "other person" (11 NYCRR 60-2.3[f]; Matter of Allstate Ins. Co. v. Rivera, 12 NY3d at 609-610). Therefore, AIU correctly contends that the Travelers bodily injury policy limits were equal to its own since it did not have to reduce the Travelers policy limits by payments made on behalf of the tortfeasor to any of the occupants in the AIU insured vehicle (see Matter of Allstate Ins. Co. v Rivera, 12 NY3d at 610).

Moreover, AIU was entitled to offset the $50,000 received by its insureds from Travelers against its own SUM limits, thereby precluding any recovery under the SUM endorsement (see 11 NYCRR 60-2.1[c] ).

Case: Theresa Poppke v. Portugese American Club of Mineola

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

Date: June 7, 2011

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

Comment: This case presents a claim under New York's Dram Shop law. Basically, a seller of alcohol who makes an "illegal" sale is liable for injuries caused by the person who had the drink. Illegal sales include, most often, sales to persons that are visibly intoxicated or sales to underage drinkers.

Holding: The defendants failed to meet their respective burdens of demonstrating, prima facie, that the driver of the vehicle which struck the plaintiff-accident victim was not visibly intoxicated when sold alcohol

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RELATED POSTS:

INJURED CHEERLEADER ASSUMED RISK; LOSES SUMMARY JUDGMENT TO SCHOOL    (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 30, 2011)

NO MEDICAL MALPRACTICE WHERE CANCER VICTIM REFUSED TESTS; DOCTOR WINS SUMMARY JUDGMENT(Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 29, 2011)

NO NOTICE OF CONDITION IN SUPERMARKET SLIP AND FALL; ACCIDENT VICTIM LOSES ON SUMMARY JUDGMENT           (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 28, 2011)

ICY SLIP AND FALL SIDEWALK ACCIDENT VICTIM DEFEATS SUMMARY JUDGMENT    (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 27, 2011)

DOCTOR'S REPORT CONTRADICTS INJURED CONSTRUCTION WORKER IN LADDER FALL; SUMMARY JUDGMENT DENIED             (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 24, 2011)

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DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Portugese American Club of Mineola appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated July 27, 2010, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendant Mineola Portugese Center, Inc., separately appeals, as limited by its brief, from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with one bill of costs.

In order to establish entitlement to recovery pursuant to a cause of action under General Obligations Law § 11-101(1), a plaintiff is required to prove, inter alia, that the defendant sold alcohol to a person who was visibly intoxicated (see Adamy v. Ziriakus, 92 N.Y.2d 396, 400; Romano v. Stanley, 90 N.Y.2d 444, 447; Kelly v. Fleet Bank, 271 A.D.2d 654, 655). Proof of visible intoxication can be established by circumstantial evidence, including expert and eyewitness testimony (see Kish v. Farley, 24 AD3d 1198, 1200; Kelly v. Fleet Bank, 271 A.D.2d at 655; Roy v. Volonino, 262 A.D.2d 546, 547).

Contrary to their contentions, the defendants Portugese American Club of Mineola (hereinafter the Club) and the Mineola Portuguese Center, Inc. (hereinafter the Center), failed to meet their respective burdens of demonstrating, prima facie, that the driver of the vehicle which struck the plaintiff-accident victim was not visibly intoxicated when sold alcohol (see Aughenbaugh v Napper Tandy's of Northport, 78 AD3d 745, 746; McGovern v. 4299 Katonah, 5 AD3d 239, 240; Smith v. Blue Mtn. Inn, 255 A.D.2d 920). The Center's remaining contention is without merit. Consequently, the Supreme Court properly denied the respective branches of the motion and cross motion of the Club and the Center which were for summary judgment dismissing the complaint insofar as asserted against each of them, regardless of the sufficiency of the plaintiff's opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

Date: June 7, 2011

Case: Quigley v. Frost Valley YMCA

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

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

In an action to recover damages for personal injuries suffered while horseback riding, the accident victim lost on defendant's motion for summary judgment. Plaintiff lost again on appeal.

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RELATED POSTS:

INJURED CHEERLEADER ASSUMED RISK; LOSES SUMMARY JUDGMENT TO SCHOOL     (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on May 30, 2011)

ASSUMPTION OF THE RISK TOSSES CASE OF TENNIS PLAYER WHO FALLS ON TORN NET    (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on May 16, 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)

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

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Accident victim was mounting a horse at a stable owned by defendant. The horse ran a little and threw her. The courts throw out this case based on our old friend, "assumption of the risk."

Voluntary participants in a sporting activity are presumed to have consented to those risks which are known, apparent, or reasonably foreseeable (see Kirkland v. Hall, 38 AD3d 497, 498; Eslin v. County of Suffolk, 18 AD3d 698, 699; Kinara v Jamaica Bay Riding Academy, Inc., 11 AD3d 588). The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff assumed the risk of a horse acting in an unintended manner, which is a danger inherent in the sport of horseback riding (see Kinara v Jamaica Bay Riding Academy, Inc., 11 AD3d 588). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant created a heightened risk by its alleged negligent conduct (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Glenn v. Annunziata, 72 AD3d 886, 887; Lipari v. Babylon Riding Ctr., Inc., 18 AD3d 824, 825).

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

Case: In the Matter of Cory J. Covert (attorney discipline)

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

Punishment: Six month suspension of law license

Date: May 31, 2011

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

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NEW YORK ACCIDENT LAWYER SUSPENDED FOR SLOPPY ESCROW BANKING   (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 4, 2011)

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

LAWYER SUSPENDED; GOOD LOVE GONE BAD    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on October 16, 2009)

TAKES NERVE TO BE A GAMBLER; TAKES BIGGER NERVE TO BLAME YOUR GAMBLING ON OTHERS (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 9, 2008)

LAWYER ADMITS MESSING WITH CLIENT MONEY; RESIGNS FROM BAR    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on January 11, 2008)

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The Grievance Committee charged this attorney with five counts of professional misconduct.

Charge one alleges that the attorney violated his fiduciary obligations by failing to preserve escrow funds entrusted to him

In March 2006, clients hired the attorney to represent them in a house purchase in Suffolk County, New York. To free up some money to buy the house, the clients refinanced the mortgage on their current residence. They applied to Chase Bank for a $310,000 mortgage loan and a $98,000 home equity loan.

The attorney represented them at their closing for the refinance in July, 2006. The attorney sent to the closing by Chase Bank gave the attorney a check for $187,863.90, payable to attorney's escrow bank account.

The clients let the attorney put the money into his escrow plus an additional $48,483 in cash and other checks, for the total of $236,346.90 to be used towards the buying the house they wanted.

In August 2006 the attorney handled the clients' house purchase. At the closing, he drew five checks against his escrow IOLA account, totaling $230,732.16, to disburse funds he was holding for the clients in order to close the deal. At the end of the closing, the attorney gave on eof the buyers a check for $99,656.66.

By disbursing funds totaling $330.388.82 against his escrow account when he was only holding $236,346.90 on account, the attorney overdisbursed the account by $94,041.92. All checks presented by the respondent in connection with the purchase transaction were honored when presented for payment between August 10 and August 14, 2006. The overdisbursement was paid against funds being held on behalf of at least two other clients' funds on deposit in the escrow bank account at the time. Accordingly, the attorney failed to preserve funds entrusted to him as a fiduciary.

Charge two alleges that the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by submitting a false statement to the Grievance Committee in its investigation.

On or about November 30, 2006, a check drawn by the attorney against his escrow bank account, which was unrelated to the three matters for which he held funds, was dishonored when presented for payment due to insufficient funds. Upon learning that the check was dishonored, the attorney discovered the mistake he had made months earlier at the purchase transaction.

On or about December 4 and December 5, 2006, the attorney deposited into the escrow bank account $50,000 and $25,000 in personal funds, respectively, to partially replenish the deficiency and prevent additional checks from being dishonored.

In a letter dated January 24, 2007, the Grievance Committee advised the attorney that he was the subject of a sua sponte complaint and investigation based upon notification from the Lawyers' Fund for Client Protection, dated December 29, 2006, of the dishonored check. The attorney was asked to explain.

The attorney submitted an answer in May 2007 but did not disclose the mistake he made in the clients' purchase transaction in August 2006. The attorney also did not disclose to the Grievance Committee that on or about December 4 and December 5, 2006, he had deposited $75,000 in personal funds to partially replenish the account or that as of the date of his answer, the IOLA account was still deficient by approximately $19,041.92, the difference between the $94,041.92 deficiency caused by his mistake and the $75,000 in personal funds he deposited.

In his answer, the attorney represented that the check was dishonored because in November 2006, in an unidentified transaction, he had issued a check without waiting a sufficient time for the corresponding deposit to clear and to become available for disbursement.

The explanation the attorney provided for the dishonored check was false and misleading in that he knew that the actual cause of the deficiency was the mistake he had made in the purchase transaction.

Charge three alleges that the attorney engaged in conduct prejudicial to the administration of justice by submitting a false statement to the Grievance Committee in its investigation

Charge four alleges that the attorney violated his fiduciary duty by failing to maintain required bank and bookkeeping records for the escrow bank account

Charge five alleges that the attorney engaged in conduct adversely reflecting on his fitness as a lawyer by engaging in any of the foregoing misconduct.

Based on the evidence adduced and the attorney's admissions, the Special Referee properly sustained all five charges. Accordingly, both the Grievance Committee's motion to confirm the Special Referee's report and the attorney's motion to confirm are granted.

In mitigation, the attorney offered his medical condition of Attention Deficit Disorder, which he shares with two of his children and which hampers his ability to focus on bookkeeping and financial details. A heart condition and recurrent atrial fibrillation preclude him from taking medication for that disorder. Upon becoming aware of the first error, the attorney hired a certified public accountant to conduct an audit of his accounts. The accountant set up a new accounting system which has been put in place.

The Grievance Committee notes that except for his initially misleading explanation for the dishonored check, the attorney has been cooperative and contrite. The Grievance Committee further notes that the attorney did not personally benefit from this matter and took prompt, albeit awkward, steps to rectify the mistake.

The attorney's disciplinary history consists of a Letter of Caution issued on February 24, 2006.

In view of the mitigating evidence advanced and the fact that the attorney was the sole person injured by his error, we find that the attorney's professional misconduct warrants a suspension from the practice of law for a period of six months.

Product warning - reported by the New York Times

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

This consumer product danger is so new that the Consumer Product Safety Commission has just now opened an investigation.

The product is a gel or jelly-like fuel for outdoor ceramic lamps, that has a citronella scent to repel insects. New York, Brooklyn, Queens residents have been getting nasty burns in accidents with this product.

The fuel is called "FireGel," and sold as the Safe Pourable Gel.

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DUMB PRODUCT RECALL: KNIFE IN AXE HANDLE CAN SLICE YOU BY ACCIDENT   (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on March 24, 2011)

ABOUT TWO DIFFERENT CONSUMER PRODUCT RECALLS: RECLINING DESK CHAIRS       (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 30, 2011)

PRODUCT RECALLS; ALL DUE TO ACCIDENTAL RISK OF INJURY DUE TO FIRE AND BURN HAZARD     (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on December 19, 2010)

WILLIAMS-SONOMA RECALLS BABY BOTTLE WARMERS DUE TO DANGER OF BURNS    (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on August 26, 2010)

RECALL OF DEHUMIDIFIERS THAT CATCH FIRE AND CREATE A BURN HAZARD    (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on December 24, 2009)

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Witnesses say it explodes like a firebomb. Like gasoline in a bottle, except it's more like napalm, which sticks on the skin and keeps burning. So the gel "cooks" your body.

Those reported injured in horrible Firegel accidents include a 14-year-old Long Island boy injured on May 28^th and now fighting for his life, after trying to light a lamp for a backyard wedding, and a 24-year-old New York City man badly burned on June 3^rd while sitting outside with a friend.

Relatives and survivors say the jelly-like product has insufficient warnings and does not indicate how it can inflict lethal injury in an accident. New York consumers' unfamiliarity with the fuel gel could pose a risk - especially if they try to refill lit lamps or lamps that are still hot.

Told by The New York Times about the two explosions in New York, Napa Home & Garden Inc., which manufactures the lamps and packages the fuel, asked Bed Bath & Beyond on Friday to recall both products from store shelves until it could add stronger accident prevention warning labels to both.

The parent of one 24-year-old accident victim is quoted as saying, "It should say 'lethal weapon."

The Consumer Product Safety Commission announced that it was opening an investigation into this product.

The CPSC said it had received eight reports of explosions or burns involving firepots or fuel gel, several of them serious, since April 2010, not counting the New York cases.

It is unclear what companies produced the products involved in those cases.

There may very well be products liaiblity lawsuits brought in the future on behalf of these burned New York accident victims. Beware residents of Brooklyn and Queens.

Case: Caldwell v. Cablevision Systems Corp.

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

Date: May 31, 2011

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

Comment: A very interesting case having to do with a witness to an accident. A witness who is asked to testify must be paid $15.00. The question in his case Is can a party to a lawsuit pay a witness more? And what if it does?

Is the witness's testimony inadmissible? Or, must a jury be given specific jury instructions pertaining to potential bias?

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RELATED POSTS:

BIKE RIDER THROWN BECAUSE OF TREE WELL CAN'T SUE CITY WITHOUT "PRIOR WRITTEN NOTICE"    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on June 8, 2011)

NO MEDICAL MALPRACTICE WHERE CANCER VICTIM REFUSED TESTS; DOCTOR WINS SUMMARY JUDGMENT (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 29, 2011)

DOCTOR'S REPORT CONTRADICTS INJURED CONSTRUCTION WORKER IN LADDER FALL; SUMMARY JUDGMENT DENIED     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 24, 2011)

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

NYPD DETECTIVE CHARGED WITH PERJURED TRIAL TESTIMONY     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on December 18, 2007)

　

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The accident defendant was hired to install fiber-optic cable underground in upstate New York.

To install the cable, the defendant cut a 3,000 foot long-trench. Next to the trench were exploratory holes it made so it could locate existing underground utility lines.

The injured was walking her dog in the rain when she tripped and fell in the road. At the time of the injured plaintiff's accident, the defendant had previously dug and backfilled the trench and test pits, but had not repaved the road.

The accident victim claims that the defendant had thereby created a dangerous condition which was the cause of the accident.

The case took its normal course and eventually came to trial.

The action proceeded to trial, at which the injured plaintiff testified that she fell when she tripped on a "dip" in one of the test pits along the trench. To counter plaintiff's testimony, the defendant called as a witness Dr. Barry Krosser, an orthopedic surgeon who had examined the injured plaintiff in an emergency room after the accident. Dr. Krosser was called during the liability phase of the trial solely to testify as a fact witness, a to the description of the accident given to him by the injured plaintiff and recorded in his hospital chart.

Dr. Krosser's note was admitted into evidence as a business record. Based upon the note, as opposed to his independent recollection, Dr. Krosser testified that plaintiff told him that she had tripped over her dog in the rain. Dr. Krosser further testified that he was appearing by virtue of a subpoena served upon him by defense counsel, and that the defendant was paying him for his lost time in the sum of $10,000.

Plaintiff's attorney was allowed to cross-examine Dr. Krosser regarding this payment. Dr. Krosser testified that he was normally paid a large fee when he came to court to testify as a medical expert witness.

The plaintiff's attorney moved to strike Dr. Krosser's testimony on the ground that it was improper for the defendant to have paid $10,000 to a fact witness. Alternatively, the plaintiffs' attorney sought a jury instruction pertaining specifically to the payment.

The defense attorney opposed the motion, arguing that the defendant was allowed to pay Dr. Krosser for the time he was taken away from his medical practice.

The case ended in a defendant's verdict, the accident victim's case was denied - she was, essentially, thrown out of court.

On appeal the injured plaintiff claims that Dr. Krosser's testimony should have been stricken or, alternatively, that the jury should have been specifically instructed as to the potential bias created by the $10,000 payment made to the witness.

The appeals court notes: "the propriety of such payments is questionable from a public policy standpoint. '[T]he giving of testimony as to facts within one's knowledge is a matter of public duty'; it is an "inherent burden of citizenship," which requires no compensation." Agreements where witnesses ask for large payments to secure their appearance and testimony in court, threaten the integrity of the judicial system by giving the appearance that justice is a commodity.

But, this is permitted.

There is a difference between compensating a witness for the reasonable value of lost time and paying a witness for his or her testimony. Where a fact witness is compensated for losses, he or she does not stand to gain anything by giving testimony but, rather, is kept in the same position as if he or she had not been required to take the time to testify. Payment to a fact witness which bears no relation to the witness's reasonable losses, on the other hand, is nothing more than a fee for testifying that permits "strangers to [the] litigation" to "profit" from it. The boundary between the two is fuzzy.

The plaintiff asserts that paying $10,000 to Dr. Krosser for one afternoon of his time spent in court testifying does not constitute reasonable compensation for time lost and his testimony

should be ruled to be inadmissible. The defendant maintains that the payment, which was made directly to Dr. Krosser's medical practice, was proper compensation for the time that Dr. Krosser, an orthopedic surgeon, could otherwise have spent seeing patients or performing surgery.

　

The defendant suggests that the payment made to Dr. Krosser was commensurate with the amount Dr. Krosser ordinarily charges to testify as an expert. There are, however, important differences between expert witnesses and fact witnesses. Experts are under no public duty, nor can they be compelled, to testify.

The testimony of a particular expert is not ordinarily necessary to the resolution of a case in the same manner as is the testimony of a fact witness who has personal knowledge peculiar to the case at hand. Thus, while fact witnesses have a public duty to testify and are limited to receipt of statutory fees and compensation for lost time, expert witnesses are justified in receiving compensation for their efforts.

We need not determine whether the payment to Dr. Krosser was reasonable in order to resolve this appeal. The question, rather, is what effect the payment to the fact witness had on the action in which that witness's testimony was presented.

Here, as in cases in which interested witnesses testify or in which testimony is induced by a promise of a reduced sentence, "we have confidence in the jury's ability to assess counsels' arguments" about the suspect credibility of factual testimony by a paid fact witness and "to evaluate [that] witness' credibility accordingly."

Even assuming that the $10,000 payment was unreasonable, the exclusion of Dr. Krosser's testimony was not the required remedy in this case.

Therefore, we conclude that the appropriate remedy in a case such as this one, where one might reasonably infer that a fact witness has been paid a fee for testifying, is to permit opposing counsel to fully explore the matter of compensation on cross-examination and summation, and to leave it for a properly instructed jury to consider whether the payment made to the witness was, in fact, disproportionate to the reasonable value of the witness's lost time and, if so, what effect, if any, that payment had on the witness's credibility.

In fashioning this remedy, we note that we are not presented with a situation in which a fact witness was paid a fee contingent upon the outcome of the litigation. We also do not foreclose the possibility that, in certain cases, the disproportionality of the payment to the reasonable value of the witness's lost time might be determinable as a matter of law, in which case the court would instruct the jury accordingly. The only question then left for the jury would be the effect, if any, of the payment on the witness's credibility.

In this case, the Supreme Court properly allowed the plaintiffs' counsel to cross-examine Dr. Krosser without limitation regarding the $10,000 payment that was made to him, and also properly permitted counsel to adequately address the issue in summations. The Supreme Court erred, however, in denying the plaintiffs' request for an explicit instruction to the jury regarding witness compensation.

Although the trial court here failed to give a specific instruction regarding fact-witness compensation to the jury, under the particular circumstances of this case, the charge error does not require reversal.

Just as a jury that hears testimony in a criminal trial from a witness who is testifying in exchange for a promise of leniency is given a specific instruction regarding the possibility of bias, we conclude that, in light of the important public policy considerations concerning fees paid to fact witnesses, more than the general credibility charge is also warranted where, as here, a reasonable inference can be drawn that a fact witness has been paid an amount disproportionate to the reasonable value of his or her lost time. While the Supreme Court instructed the jury that it should consider bias or prejudice in determining the weight to be given to any particular witness's testimony, this general charge was insufficient under the circumstances. In crafting an appropriate instruction, trial courts should bear in mind the general principles regarding fact-witness testimony heretofore discussed, including a fact witness's public duty to testify for the statutory fee of $15; the permissibility of voluntary compensation for the reasonable value of time spent in testifying; the goal of drawing the line between compensation that merely eases the burden of testifying and that which tends to unintentionally influence testimony; the inference, which may be drawn from the disproportionality of the payment to the reasonable value of lost time, that a fee for testimony has been paid; and the potential for unconscious bias that such a fee may create.

Dr. Krosser was called as a witness by the defendant for the sole purpose of testifying as to a single fact recorded in his chart. Dr. Krosser had no personal recollection of speaking with the accident victim and his testimony was based only on what he wrote down on the day of the accident. The credibility of Dr. Krosser's testimony is not in question, the injured plaintiff disputes the accuracy of the note itself.

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KINGS COUNTY COMMUNITIES

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

Case: Mattern v. Hornell Brewing Co., Inc.

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

Date: May 31, 2011

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

Accident victim sued a Suffolk County deli, the Arizona iced tea company, and several others claiming that he was injured by swallowing pieces of glass while drinking from a 20-ounce glass bottle in a products liability case. The bottle was covered in a label made of plastic "shrink wrap."

The company that made the bottle made a motion to ask the court to allow its expert to fill the bottle with water, take the plastic shrink wrap label off of the bottle, and examine and test the bottle. Everyone else in the lawsuit (including the injured plaintiff/accident victim) opposed letting the manufacturer remove of the label because it would destroy the bottle. On October 13, 2010, the lower court granted the bottle manufacturer's motion. The appeals court modified the order.

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LACERATION/CUTTING HAZARD CAN SLICE AND DICE AND INJURE CONSUMERS     (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 21, 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)

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

RECALL OF CRATE AND BARREL BRAND GLASS WATER BOTTLES; THEY PRESENT RISK OF ACCIDENT AND INJURY DUE TO LACERATION HAZARD     (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 6, 2010)

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Comment: Dear Readers: What happened here is yet another example of bad lawyering.

The appeals court properly points out that if a party to a lawsuit wants to destroy evidence by testing it, it must justify the reason for so doing and show why nondestructive testing is not good enough. Going further, the party seeking to do this must completely describe the tests it intends to perform, and tell everyone the extent ot which each test will change or destroy the object being tested (here, a bottle).

Comment: This seems like a simple enough rule. To get around it, whoever wants to test must submit an affidavit to the court giving this information and, ideally, it should come from an expert (probably with fancy, schmancy credentials) who's actually going to perform the testing.

In this case, the bottle manufacturer, "failed to establish the basis for its belief that nondestructive testing was inadequate and failed to indicate the extent to which its proposed testing would alter or destroy the bottle."

Comment: I'm guessing the bottle maker didn't put in an affidavit with its motion requesting permission to destroy the bottle. Evidently it tried to cover its own butt by putting in an expert affidavit in its reply papers - a no, no becuase by then it was too late.

But the appeals court decided it was o.k. to let the bottle manufacturer put water into the bottle. Whatever good that will do, I couldn't say.

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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.

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

Case: Tucker v. The City of New York

Date: May 26, 2011

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

RELATED POSTS:

INJURED WHEN STAIRS COLLAPSE, ACCIDENT VICTIM CAN'T SUE: NO NOTICE OF DEFECT    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 6, 2011)

NEW YORK CITY BUS KILLS BICYCLIST, KEEPS GOING   (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 26, 2011)

BICYCLE HELMETS PROTECT CHILDREN'S BRAINS IN CASE OF AN ACCIDENT    (Posted by Brooklyn accident injury attorney 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 attorney Gary E. Rosenberg on January 31, 2011)

BICYCLIST PLOWS INTO PEDESTRIAN IN MANHATTAN'S CENTRAL PARK, AND KEEP GOING    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on August 8, 2010)

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It is well established that the City of New York can't be sued for an accident because of a broken or defective sidewalk unless it was sent "prior written notice" of the condition.

This is usually a high hurdle.

The question in this case and appeal is whether the New York City's Pothole Law mandates that an accident victim prove that the City received prior written notice of a defect in a tree pit in a sidewalk.

The question becomes if a tree pit is part of a sidewalk. In this case, plaintiff was injured when his bicycle hit a tree pit or well, throwing him off the bike.

The appeals court here interprets a case from New York's highest court, the Court of Appeals, named Vucetovic. It finds that a tree well is part of a sidewalk.

In Vucetovic, the Court of Appeals, "guided by the principle that 'legislative enactments in derogation of common law, and especially those creating liability where none previously existed,' must be strictly construed," held that "section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells" ( 10 NY3d at 521 [citation omitted] ).

Section 7-210 of the N.Y.C. Administrative Code, which was enacted "in an effort to transfer tort liability from the City to adjoining property owners as a cost-saving measure" thereby creating new liability, provides, in pertinent part:

"a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.

"b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk.

"c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks ... in a reasonably safe condition."

Section 7-201(c)(2) was enacted to address "the vexing problem of municipal street and sidewalk liability." Recognizing "the reality that municipal officials are not aware of every dangerous condition on its streets and public walkways," the section ensures that the City receives written notice of defects in the public way so that it may repair a problem before there is liability. In contrast to section 7-210, which is limited to sidewalks, section 7-201(c)(2) provides:

"No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any ... sidewalk ... or any part or portion of any [sidewalk] including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice" (emphasis added).

This broad language, encompassing a sidewalk and "any encumbrances thereon or attachments thereto," is addressed to the features of a sidewalk, and not to the type of maintenance work to be performed, and requires a plaintiff to show that the City received prior written notice of the alleged tree well defect, a soil level below the sidewalk area, in violation of 34 RCNY 2-09(f)(4)(xx)(B).

We reject the argument that a tree well is not an "encumbrance" on or an "attachment" to the sidewalk, but an area adjacent to and separate and distinct from the sidewalk. While the terms "encumbrances thereon or attachments thereto" are not defined in the statute, the American Heritage Dictionary of the English Language 589 (4th ed.2006) defines an encumbrance as "a burden or impediment." It defines an impediment as "something that impedes, a hindrance or obstruction." (id. at 879). As the photographs in the record before us demonstrate, the tree well is inserted into the sidewalk, which surrounds it on three sides, and is clearly an impediment to pedestrians who traverse the sidewalk.

Plaintiff's argument that excluding tree wells from Administrative Code § 7-210 while including them in § 7-201(c)(2) would lead to an illogical outcome ignores the difference in the language employed in the two sections.

Given the applicability of the Pothole Law, the lack of prior written notice of the alleged defect, and the absence of any evidence that the City created the alleged defect through an affirmative act of negligence or made a special use of the subject tree well, the City may not be held liable even if it had actual or constructive notice of the alleged defect, and notwithstanding that, as it happens, it owns the abutting property.

　

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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.

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

Case: Mose v. Sangiovanni

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 lawyer)

Comment: A tough loss for the injured accident victim, but you'll see how this could happen if your accident lawyer is not super experienced and extra careful.

Accident plaintiff loses and case dismissed because case is barred by the three-year statute of limitations.

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TAKE A WITNESS AFFIDAVIT INSTEAD OF A STATEMENT   (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 5, 2008)

REAL ESTATE ATTORNEY DISBARRED; HE FEE-SPLIT WITH NON-LAWYERS IN PERSONAL INJURY CASES (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on March 1, 2008)

WHAT IS A DEPOSITION?   (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 9, 2008)

ACCEPTING $2,500 COST THIS INJURED PLAINTIFF A SHOT AT $75,000   (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on September 28, 2009)

AFTER A CAR CRASH: CAN I HANDLE MY INJURY CLAIM MYSELF? (A FREQUENTLY ASKED QUESTION)   (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 3, 2010)

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This action arises out of a motor vehicle accident that occurred on July 4, 2006.

The case started as an uninsured motorist accident claim. The accident victim exercised his right under his insurance policy and on July 23, 2008, demanded uninsured motorist arbitration from his insurance carrier, Allstate.

Allstate went to court to stop the arbitration. Allstate submitted papers showing that the Chevrolet pickup truck that he had the accident with was covered by insurance - if true, the injured accident victim could not collect from Allstate. He would have to go against the pickup truck and its insurance.

On December 2, 2008, the lower court granted Allstate's petition for an order staying (freezing) the arbitration and ordered a hearing to determine whether the pickup truck had insurance.

Then the lawyer for the accident victim (Mose) messed up, because he or she did nothing. The lawyer should have started a lawsuit against the pickup truck's owner and driver as a "just in case" for what happened next.

On July 30, 2009, the date the hearing was supposed to take place, the pickup truck's insurance company admitted that it insured the pickup truck. And this is when, most likely, the injured plaintiff's lawyer realized he or she had a problem.

That lawyer tried to make a deal in court. The plaintiff's counsel stated that the plaintiff would withdraw his demand for arbitration if the court would rule that the three-year statute of limitations in would be tolled (frozen) during the period that the lower stayed the arbitration pending the hearing - this way, the accident victim's lawyer figured, the three-year time limit to sue would not be blown.

Without any further argument, the lower court (probably figuring why not? And giving the accident victim's lawyer a break) ruled that the statute of limitations was tolled from the initial date of the stay of arbitration until July 30, 2009.

On July 31, 2009, the plaintiff commenced a regular lawsuit for personal injuries (this one) against the pickup truck's owner and driver. The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on the ground that it was barred by the three-year statute of limitations and won.

The appeals court writes:

"Contrary to the plaintiff's contention, the Supreme Court's finding in the CPLR article 75 proceeding that the statute of limitations was tolled is not binding on the defendants in this action. "Collateral estoppel, or issue preclusion, 'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party ... whether or not the tribunals or causes of action are the same' "

"The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the [party] had a full and fair opportunity to litigate the issue in the earlier action"

The doctrine of collateral estoppel is inapplicable here because the Supreme Court's finding that the statute of limitations was tolled was a gratuitous finding that was not material to a determination of the CPLR article 75 proceeding

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

Who: Bronx resident Fatoumata Diallo, age 21. Diallo, a native of Ghana, had been studying at Borough of Manhattan Community College and dreamed of becoming a doctor, according to family members. She had just celebrated her birthday last Thursday.

What: Fatal accident. An aspiring doctor was killed in a horrific subway accident yesterday when she passed out on a sweltering Upper East Side platform and fell onto the tracks -- realizing what happened too late to escape an uptown train bearing down on her.

When: Wednesday, June 1, 2011, at approx. 3 PM

Where: East 77th Street and Lexington Avenue, along the No. 6 train line

Why: Diallo regained consciousness after falling onto the rail bed, and desperately tried to get out of the way of the No. 6 train by scrambling to the area between the north- and southbound tracks.

But she couldn't move fast enough. She was pronounced dead at the scene.

Fatoumata Binta Amina Diallo, 21, "was cut in half," said one shocked witness. The police said that no criminality was suspected, although an investigation was continuing.

Riders said temperatures in the subway station were very high as the mercury outside reached 90 egrees, making it the hottest day of the year so far.

With added humidity, it felt closer to 102 degrees, said AccuWeather meteorologist Mike Pigott.

Straphanger Amber Shanks, 19, from The Bronx, said, "It's extremely hot down here. It's not safe."

How: A young woman was killed when she fell onto the subway tracks and was struck by a train on the Upper East Side. The Bronx woman had been returning from a dental appointment, said her family.

The first 911 call was received at 3:09 p.m., said Frank Dwyer, a spokesman for the Fire Department. The train that hit the woman was a rerouted No. 5 train making local stops along the No. 6 line, said Kevin Ortiz, a spokesman for New York City Transit. The train's operator was interviewed by investigators, Mr. Ortiz said.

Service was disrupted afterward. In both directions, No. 6 trains ran express between 125th Street and Grand Central Terminal, and some downtown No. 6 trains ended at East 86th Street, Mr. Ortiz said. By 7 p.m., service had returned to normal, he said.

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RELATED POSTS:

CAUSES OF CAR, TRUCK, BUS AND MOTORCYCLE ACCIDENTS    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on January 5, 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)

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

MOTORCYCLE BOUNCES OFF TRAIN, HUSBAND & WIFE DIE FROM INJURIES    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on April 14, 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 ACCIDENT VICTIMS ON FIRST DATE    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 19, 2010)

Court: Court of Appeals of New York

Case: Kabir v. County of Monroe

Date: Feb. 17, 2011

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

Background: Driver of vehicle rear-ended by a vehicle driven by a county deputy sheriff brought action against deputy sheriff, county, and others to recover damages for injuries allegedly sustained in the accident. The Supreme Court, Monroe County, granted defendants' motion for summary judgment and denied driver's cross motion seeking partial summary judgment. Driver appealed. The Supreme Court, Appellate Division, reversed. Defendants appealed.

Holding: The Court of Appeals,, held that reckless disregard standard of liability for drivers of emergency vehicles only applied when driver was engaged in one of four categories of privileged conduct exempted from rules of the road. Affirmed.

The Court points out: The fact is, though, that in the majority of cases implicating Section 1104, the conduct allegedly causing the accident is, in fact, listed in subdivision (b).

Three judges (of seven) dissent.

Comment: This is a game-changing opinion for victims of police, ambulance or fire company carelessness that causes a motor vehicle accident. This is a 4 to 3 decision, so pay attention to the dissent.

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BROOKLYN COPS RUN DOWN BICYCLIST, GIVE HIM SOME TISSUES, AND TAKE OFF    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on June 17, 2010)

COP RUNS OVER SUNBATHER IN ACCIDENT ON LONG ISLAND BEACH     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 27, 2010)

L.I. POLICE CAR STOPS SUSPECT BY RUNNING HIM DOWN; HE LOSES LEG, SUES AND RECOVERS MILLIONS     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on February 23, 2010)

CAUSES OF CAR, TRUCK, BUS AND MOTORCYCLE ACCIDENTS     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on January 5, 2010)

WHEN IS A POLICE CHASE NOT A POLICE CHASE? PEOPLE DIE IN BELT PARKWAY CRASH.    (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on February 28, 2008)

FIRE TRUCK SLAMS INTO POST OFFICE 18-WHEELER     (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on January 18, 2008)

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OPINION OF THE COURT

On this appeal, we hold that the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

I.

At 3:57 P.M. on September 20, 2004, the defendant police officer, a County Deputy Sheriff, received a radio dispatch directing him to respond to a stolen vehicle report. He soon received a second radio dispatch, which requested backup for another officer who was responding to a burglary alarm.

Because the 911 center categorized the burglary alarm as "classification one"--meaning "a serious call ... that ... needs immediate attention"--the deputy acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report. The dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy's vehicle.

The officer did not activate the emergency lights or siren on his vehicle; he was traveling at a speed of 25 to 30 miles per hour in a 40-mile-per-hour zone, and does not recall if he speeded up or slowed down after receiving the dispatch.

He touched the terminal and "looked down for two to three seconds" at the display "to view [the names of] the cross streets." When the deputy lifted his gaze, he realized that "traffic had slowed." Although he immediately applied his brakes, he was unable to stop before rearending the vehicle in front of him, which was driven by the injured accident plaintiff. The injured plaintiff had stopped for a red traffic light, and was just beginning to move forward when her car was hit.

The injured accident victim sued. The parties disputed whether Vehicle and Traffic Law § 1104 applied, making the officer liable for the accident only if he acted with "reckless disregard for the safety of others."

On September 26, 2008, Supreme (lower) Court awarded summary judgment to defendants, concluding that the officer's conduct was covered by Section 1104, and that the accident victim had not raised a triable issue of fact as to whether the officer acted with reckless disregard.

On December 30, 2009, the Appellate Division reversed, with two Justices dissenting. The majority held that the reckless disregard standard in Section 1104(e) is limited to accidents caused by conduct privileged under Section 1104(b). Because the officer's injury-causing conduct was not exempt under this provision, the majority concluded that "the applicable standard for determining liability [was] the standard of ordinary negligence."

The court further observed that "a rearend collision with a vehicle in stop-and-go traffic creates a prima facie case of negligence with respect to the operator of the rear vehicle"; therefore, "partial summary judgment on liability in favor of the person whose vehicle was rearended is appropriate in the absence of a nonnegligent explanation for the accident" Concluding that the accident victim had met her burden on the cross motion and that defendants had not put forward a nonnegligent explanation, the court reinstated the complaint against defendants and granted Kabir's cross motion for partial summary judgment on liability.

The dissent interpreted Section 1104 differently, taking the position that the reckless disregard standard was applicable to any injury-causing conduct of a driver of an emergency vehicle involved in an emergency operation.

II.

Section 1104 was put in place in 1957 as part of what is now title VII of the Vehicle and Traffic Law, Subdivision (a) of this provision empowers the driver of an "authorized emergency vehicle" to "exercise the privileges set forth in this section [1104], but subject to the conditions herein stated " (emphases added). The statute then lists these privileges in subdivision (b):

"1. Stop, stand or park irrespective of the provisions of this title [VII];

"2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

"3. Exceed the maximum speed limits so long as he does not endanger life or property;

"4. Disregard regulations governing directions of movement or turning in specified directions" (Vehicle and Traffic Law § 1104[b] ).

Subdivision (c) of section 1104 sets out prerequisites or conditions upon the exercise of the privileges listed in subdivision (b): except in the case of police vehicles or bicycles "the exemptions herein granted" are available only when the authorized emergency vehicle is making use of prescribed audible and visual signals.

Finally, subdivision (e) of section 1104 specifies that "[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others" (emphasis added). Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.

But defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to "[t]he foregoing provisions," which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have "interpret[ed] Vehicle and Traffic Law § 1104(e) as if it read: 'When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others' "

The dissent, however, interprets subdivision (e) to mean "The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others." As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to "[t]he foregoing provisions"; and the "foregoing provisions" only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.

This discussion confirms that these provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b).

Additionally, we note that this is the first time we have been asked to decide the question presented by this appeal. This is not entirely surprising: subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit; for example, speeding or running a red light. Defendants and amici curiae insist, however, that in our prior decisions, particularly Saarinen and Szczerbiak v. Pilat, 90 N.Y.2d 553, 664 N.Y.S.2d 252, 686 N.E.2d 1346 (1997), we have held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104(b).

Dissent:

The majority's new rule is inconsistent with the public policy underlying Section 1104 because it creates an unjustifiable distinction that extends the protection of qualified immunity only to police, fire or ambulance personnel who speed, run a red light or violate a handful of other traffic laws while responding to emergency calls. Thus, the majority holding has the perverse effect of encouraging conduct directly adverse to the public policy of requiring emergency responders to exercise the utmost care during emergency operations.

Because the defendant police officer was operating an "authorized emergency vehicle" as defined in Vehicle and Traffic Law § 101 while engaged in an "emergency operation" as defined in Vehicle and Traffic Law § 114-b, any liability arising from his conduct must be assessed under the standard set forth in Vehicle and Traffic Law § 1104.

That statute contains two provisions that are at the heart of this controversy. The first-Ssection 1104(b)-creates four categories of "privileged" conduct, specifically permitting an emergency responder to disregard a variety of traffic laws, including proceeding through red lights and exceeding maximum speed limits. In other words, section 1104(b) exempts emergency responders from compliance with certain rules of the road. As a result, the operator of a fire truck who, for example, drives through a red light while responding to a call cannot receive a traffic citation since that conduct is permitted under Ssection 1104(b).

But Section 1104(b) says nothing about the standard of liability that applies when an emergency responder is involved in an accident giving rise to a lawsuit seeking civil damages. That issue is addressed in Section 1104(e), which provides:

"The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."

Although we have previously recognized that this provision is not a model of clarity, in Saarinen, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988 we determined that it imposes a heightened "reckless disregard" standard of care applicable to police officers and other responders engaged in emergency operations.

Since Saarinen, Vehicle and Traffic Law § 1104 has been understood to impose a two-part test: if the driver was operating an "authorized emergency vehicle" and was involved in an "emergency operation" as those terms are defined in the statutory scheme, the driver was entitled to the qualified immunity afforded by the reckless disregard standard.

The majority now adds a third component to the equation, precluding emergency responders from obtaining the benefit of the reckless disregard standard unless--ironically--they violated one of the traffic rules listed in section 1104(b). Police officers, firefighters or ambulance drivers who manage to obey traffic signals or travel within the speed limit are out of luck if they are involved in an accident. Their conduct will be assessed under the ordinary negligence standard, making it much easier for these "law abiding" emergency responders to be held liable for damages. Does this make sense?

The precise issue presented in this case was not raised by the parties in Saarinen and the police officer whose conduct was under review in that case had apparently exceeded the speed limit, thereby engaging in privileged conduct. But our explanation of the legislative policy underlying the statute--as well as our analysis in that case and others--is antithetical to the approach now taken by the majority.

We thus applied the reckless disregard standard to all of the officer's conduct, including claims that he failed to properly consider the fact that other traffic might be in the area and failed to promptly report the chase to his supervisors (who might have ordered him to desist). We did not analyze the privileged conduct under the heightened standard and then apply another, less stringent standard to conduct not addressed in section 1104(b).

　

　

For all of these reasons, I would reverse the order of the Appellate Division and reinstate Supreme Court's judgment dismissing plaintiff's complaint.