Posts Tagged ‘personal injury’

Matter of Abato v County of Nassau

Plaintiff brought about this action against the County of Nassau as the owner and operator of the Nassau Veterans Memorial Coliseum and Long Island Industrial Hockey League, Inc. to recover damages for personal injuries sustained at an ice hockey game. Plaintiff was knocked to the floor by other spectators trying to catch a souvenir T-shirt that was launched into the stands from the ice.

Defendants appealed from an order of the Supreme Court which denied their motion for summary judgment dismissing the complaint and all cross claims. In order to obtain summary judgment defendants needed to establish their entitlement to judgment as a matter of law. They failed to prove that the acts which allegedly caused plaintiff’s injuries were not foreseeable. The commotion following the launching of the T-shirt was a natural response of the spectators as a reaction to the action of the defendants and not an unprompted act of another spectator.

Defendants’ primary assumption was the risk defense as a matter of law. They argued that the acts that allegedly caused the plaintiff’s injuries were foreseeable consequences of attending the hockey game. Again, the defendants failed to prove their point and thus triable issues of fact remain.

Accordingly, the Supreme Court affirmed the order, with costs.

Read more about this personal injury case.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Matter of Joseph Desena v Keyspan

In this personal injury case, defendant Keyspan Energy Delivery NYC (hereinafter Keyspan) appealed from an order of the Supreme Court denying its motion for summary judgment to dismiss the complaint from petitioner, Joseph Desena. Keyspan claimed to not be responsible for the alleged roadway defect that caused plaintiff’s injuries. In opposition, the plaintiff established that facts essential to the case existed. Keyspan’s foreman has not yet been disposed and will provide facts that could raise a triable issue of fact. Therefore the summary judgment must be denied as triable issues of fact exist.

Accordingly, the Supreme Court affirmed the order as appealed from and upheld the Court’s order to deny the motion for summary judgment.

Read more about this personal injury case here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

This post published by Professor Mitchell Rubenstein of St John’s University School of Law appeared in his Adjunct Professor Law Blog:

Rare Personal Injury Verdict In Favor of Teacher Against Board of Education

It is very difficult for a teacher to recover for personal injuries against the Board of Education because of student violence. The Board is only liable if it assumed a “special duty.” Dinardo v. Board of Education, ___A.D.3d___(1st Dept. Dec. 23, 2008), is one of those rare cases where a special duty was found because the Board sought to protect this teacher from the student due to the previous violence inflicted by this very same student. As the court stated:

Although no express promise was made to plaintiff by any agents of the Board, there is no requirement that the promise to protect be explicit (see Bloom v City of New York, 123 AD2d 594, 595 [1986]). In this regard, we note in particular that plaintiff testified that her supervisor told her to “hang in there because something was being done to have [the student] placed or removed.” The dissent posits that plaintiff could not have been lulled into a false sense of security by being told something was being done and by the initiation of a Type 3 referral, especially since she knew it could take up to 60 days to process such a referral. The jury, however, had a rational basis for finding that plaintiff justifiably relied on the Board’s affirmative undertaking, given the assurances she received from her local administrators. For instance, plaintiff told the principal, the assistant principal and her direct supervisor that the situation was getting more impossible, that she wanted to quit, that it was getting unsafe, and that she was concerned about safety in the classroom; in response she was told that “things were being worked on, things were happening [suggesting an imminent solution], . . . and to hang in there.” In addition, while the Type 3 referral was pending, the principal intervened by writing a letter to the District 10 supervisor of special education, “urgently requesting an alternative site” for the student.

We reject the Board’s argument that plaintiff’s claim fails because it is premised on the Board’s alleged negligence in the placement and transfer of a student. This is a function carried out in accordance with educational policy, the responsibility for which lies within the professional judgment and discretion of those charged with the administration of the public schools (see e.g. Brady v Board of Educ. of City of N.Y., 197 AD2d 655 [1993]). The evidence demonstrates that agents of the Board began the process of transferring the offending student out of plaintiff’s class, and contrary to the Board’s contention, the gravamen of plaintiff’s negligence claim was that her supervisor and other school administrators failed to follow through with the transfer request in a timely fashion. Furthermore, the Board’s argument that it cannot be held liable because its agents had no knowledge of prior threats or violence committed by the student who attacked plaintiff, or that she feared for her safety, is belied by the evidence that the Board’s agents were aware of the student’s aggressive tendencies and that plaintiff indeed feared for her safety in the classroom.

Mitchell H. Rubinstein

January 25, 2009 in Education Law

Campbell v County of Suffolk

In this Long Island bus accident case, the plaintiff Susan Campbell was a passenger in a motor vehicle when it was struck by a bus owned by the defendant County of Suffolk and operated by defendant Peggy Costello. Plaintiff sustained injuries and commenced this lawsuit against the County and Costello to recover damages for personal injuries. Plaintiff moved for summary judgment on the issue of liability and submitted evidence demonstrating entitlement to judgment by establishing that her vehicle was traveling northbound on County Road 51 when the bus, traveling southbound, crossed over the median and struck plaintiff’s vehicle head on. Supreme Court granted plaintiff’s motion for summary judgment on the issue of liability.

Defendants then appealed this decision but failed to raise a triable issue of fact. Costello admitted at her deposition that she swerved to avoid a nearby truck but also stated that she saw the entire truck in her side view mirror which would suggest that the truck was not dangerously close. Since defendants failed to raise an issue of fact as to whether Costello was faced with an emergency not created by her own actions, the plaintiff was entitled to summary judgment.

Accordingly, the Court affirmed the judgment, with costs.

Read the full article here.

If you need a lawyer to represent you in your New York bus accident case, please contact Kevin P. Sheerin toll free at 888-998-9984.

Matter of Schreiber-Cross v State of New York

In this New York car accident case, plaintiff’s decedent was killed in a two-car accident at the intersection of Route 25A and Columbia in Port Jefferson Station. Claimant asserted seven allegations of negligence against the State of New York, six of which pertained to the design and/or maintenance of the traffic control device location at the intersection, or the intersection itself.

Less than two weeks prior to the scheduled trial date, claimant switched attorneys and submitted a motion for partial summary judgment and leave to amend the bill of particulars and change the designation of the claimant’s expert. This motion was returned for being in violation of the court-imposed deadlines. Claimant then brought about an Article 78 appeal for consideration of the motion. The Court of Claims denied the motion in toto which resulted in the claimant moving for recusal of the Court of Claims judge. The Court denied the motion. A trial commenced with the outcome of the claim being dismissed.

Claimant then appealed, asserting that the record established the traffic control device was the proximate cause of the accident and that the Court of Claims erred in denying the branches of the motion for leave to amend the bill of particulars and to substitute its designated expert. Evidence supported the Court’s determination that the claimant failed to establish the State was negligent in maintaining the traffic signal. The proposed new expert was going to testify on how the decedent’s head trauma was due to the guardrail placement and not place much emphasis on the traffic signal.

The Court of Claims had the task of determining whether the relief sought was contrary to prior representations made by claimant’s prior counsel and to balance the rights of the litigants against the demands of its calendar. Changing attorneys right before a trial begins is not considered a sufficiently exceptional circumstance that would limit the discretion of the Court.

Accordingly, the Court affirmed the judgment.

Read the full article here.

If you need a lawyer to represent you in your New York car accident case, please contact Kevin P. Sheerin toll free at 888-998-9984.

Dinardo v City of New York

In this New York personal injury case, plaintiff Zelinda Dinardo, a special education teacher, sought to recover damages for injuries sustained while attempting to protect one of her students from attack by another student with a history of aggressive and disruptive behavior. The Supreme Court ruled in favor of plaintiff in April 2008 and respondents appealed.

Respondents argued that plaintiff’s claim should fail because it was based on the Board of Education’s alleged negligence in the placement and transfer of a student. Contrary to respondents’ contention, the issue at hand was that the school administrators failed to follow through with the transfer request in a timely fashion. Additionally, evidence disproves the Board’s argument denying liability due to no knowledge of previous violent outbursts by the student who attacked the plaintiff.

Accordingly, the Court dismissed the appeal without costs and affirmed the judgment awarding plaintiff damages in the amount of $512,465.

Read the full article here.

If you need a lawyer to represent you in your New York personal injury case, please contact Kevin P. Sheerin toll free at 888-998-9984.

Collazo v Metropolitan Suburban Bus Authority

In this New York accident case, plaintiff, Joehau Collazo, appeals against a decision in favor of defendants Metropolitan Suburban Bus Authority and moves for a new trial. In October 2007, defendants were granted a motion for summary judgment dismissing the action against them leading to this appeal.

In April 2002, plaintiff contends he was walking in the eastbound crosswalk of Hillside Avenue and 167^th Street when he was struck by a defendant MTA/Long Island Bus Company bus moving in the left turn lane in the westbound direction of Hillside Avenue. Plaintiff sustained injuries including broken bones and a traumatic brain injury resulting in permanent cognitive and emotional deficits. Defendants allege that plaintiff ran across the westbound traffic lanes between 166^th and 167^th Streets and then ran into defendants’ bus closer to 166^th Street.

Plaintiff argues that the Verdict should be set aside for two reasons: the Court gave an erroneous instruction on the law and the Verdict was against the weight of evidence. According to the plaintiff, the Court erred in permitting the jury to consider defendants’ conduct in two different ways, using Vehicle and Traffic Law and New York City Traffic Regulations. Upon reviewing the circumstances, the Court found no basis to set aside the Verdict based on the Court’s instructions to the jury.

Concerning plaintiff’s claim that the weight of the evidence establishes that defendants’ bus entered the intersection of 167^th Street and Hillside Avenue against a steady red light and then came into contact with plaintiff as he was walking in the eastbound crosswalk of Hillside Avenue, the Court has reasonable doubt that the plaintiff ran into the side of the bus per the defendants’ theory. Multiple testimonies support plaintiff’s version of the accident and based on the testimonial evidence, the Court feels that the Verdict was against the weight of the evidence.

Accordingly, the Court set the Verdict aside and required a new trial be set.

If you need a lawyer to represent you in your New York accident case, please contact Kevin P. Sheerin toll free at 888-998-9984.

Matter of Ruffino v City of New York

Petitioner brought about this appeal from an order of the Supreme Court denying her petition for leave to serve a late notice of claim in connection to injuries she sustained when she tripped and fell over a wooden board on a boardwalk under New York City jurisdiction.

Petitioner served a timely notice of claim on the New York City Transit Authority but later was apprised that the City had jurisdiction over the area where she fell not the Transit Authority. Petitioner’s attorney promptly commenced this proceeding after verifying that the wrong entities were served. Petitioner was able to show that the delay in serving the notice of claim did not prevent the City from maintaining its defense on the merits. Even though the wooden board that caused petitioner’s fall was repaired less than one month after the accident, she took photographs of the defect on the day of the accident. Due to repairing the board, the City would not have been able investigate the site of the defect more effectively if it had been timely served 90 days after the incident.

Accordingly, the Court reversed the order and granted the petition.

Matter of Ruffino v City of New York (2008 NY Slip Op 09605)

Arias v City of New York

In this action to recover damages for personal injuries, defendants Danny Cheung and Annie Lee appeal from an order of the Supreme Court denying their motion for summary judgment.

Plaintiff, Ernesto Arias, brought about this action to recover damages for injuries sustained in an automobile collision at an intersection. According to his deposition testimony, defendant was driving his vehicle into a four-way intersection. He stopped his car at the stop sign, looked both ways, saw no traffic and proceeded into the intersection. Plaintiff testified that the stop sign governing his entry into the intersection was “erased” and that he drove into the intersection without slowing or stopping and collided with defendants’ vehicle.

Defendants made a motion for summary judgment dismissing the complaint and the Supreme Court denied it. They then commenced this appeal. Cheung and Lee established that Cheung lawfully entered the intersection before plaintiff after determining the way was clear and therefore defendant had the right-of-way. The plaintiff failed to raise a triable issue of fact in opposition and failed to establish he has the right-of-way.

Accordingly, the Court reversed the order, with one bill of costs payable by respondents, and granted appellants’ motion for summary judgment dismissing the complaint.

Arias v City of New York (2008 NY Slip Op 09541)

Venezia v State of New York

This appeal was brought about by claimant Damian Venezia to review the order by the Court of Claims granting defendant, the State of New York’s, motion for summary judgment dismissing the claim to recover damages for personal injuries.

According to Labor Law § 241(6), an owner or general contractor must provide reasonable and adequate protection to workers on the premises but claimant must establish a breach of a rule in order to establish liability under this law. The plaintiff failed to raise triable issues of fact in regards to whether 12 NYCRR 23-1.7(e) was violated and with respect to his reliance on 12 NYCRR 23-2.1. Under Labor Law § 200, it must be proved that the general contractor accused of alleged defects or dangers in the methods or materials of the work had the authority to supervise or control the performance of the work. The defendant submitted testimony that proved it had no authority to supervise or control the performance of claimant’s work and again plaintiff failed to raise a triable issue of fact in opposition.

Accordingly, the Court affirmed the order as appealed from, with costs.

Venezia v State of New York (2008 NY Slip Op 09587)