At the 59th Street station a commuter fall when getting off the subway.  NYCTA argued that the  horizontal and vertical gaps did not exceed six inches. NYCTA had previously issued an internal memo commanding that the gap be no more than 6 inches.  Qualified Immunty allows an agency like NYCTA to be immune from suit if it follows its regulations.  In this case the First Department held that NYCTA was not entitled to Qualified Immunity because it did not state if there was a study done declaring that a six inch gap was safe nor was there a public planning body that considered the same question of risk.  Accordingly, even if the defendant NYCTA complied with its own standard this was not enough to dismiss the injury party’s case.  Tzilianos v. NYCTA.

In a recent Nassau County personal injury case Katanov v. County of Nassau a judge denied summary judgment to the Defendant Nassau County.

The County had moved to get out of the case under two theories:

1. Plaintiff did not suffer a serious injury under Insurance Law 5102 and
2. The police vehicle was responding to an emergency and therefore only if the police officer was “reckless” could the County be liable.

The Court held that the doctor that the defendant hired to examine the plaintiff noted significant limitations of movement in her neck and therefore did not uphold their burden of proving that plaintiff had not suffered a serious injury.

Under the second theory the Police Officer although responding to an emergency at the time of the accident he was driving approximately 2 miles a hour and pulling into a parking spot and therefore the emergency doctrine was not applicable.

Accordingly, the Defendants motion for summary judgment was denied.

Read about this Nassau County Accident.

Sypher v Lopez

Plaintiff commenced this suit against defendant to recover damages for alleged injuries caused by a motor vehicle accident. Defendant failed to stop at a stop sign resulting, in the impact between plaintiff and defendant vehicle’s where plaintiff’s car was pushed into a pole. Plaintiff according to bill of particulars faced “loss of consciousness; abrasion to the left side of the face; scar to the left side of the face; concussion; head injuries to the left side of the head; and post concussion syndrome and headaches.” He alleges that he was confined to his bed and home for five months.

Defendant moves for summary judgment and needs to provide a basis that the injuries obtained by the plaintiff do not meet the “serious injury” requirement concerning Insurance Law 5102(d).

“Serious injury” is a “personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury.”

Plaintiff opposes and asserts that the injuries sustained are within the “limitations of use” considering the “90/180” category of the Insurance Law resulting from the accident.

“Limitations of use” states that a “plaintiff must present objective medical evidence to the extent, percentage or degree of the limitation or loss of range of motion and its duration.” There must be sufficient medical evident that diagnoses and identifies injuries and not just a pain or discomfort.

A defendant seeking summary judgment “bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury.”” Once this is established the plaintiff must submit objective proof of the “nature and degree of the alleged injury in order to meet the threshold of the statutory standard for “serious injury.””

Defendant’s orthopedist was able to identify that the plaintiff was not disabled and that the alleged cervical sprains caused by the accident had dissipated and that plaintiff’s range was not all at the normal level.

Defendant’s neurologist found that plaintiff’s range of motion for his cervical spine is full. There is also tenderness to the cervical area but no muscle spasms. Neurologist found that the plaintiff is not disabled and can function within normal daily activities with no restriction.

Defendant was unable to prove that plaintiff did not sustain a “medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts constituting his usual and customary activities for not less than 90 days during the 180 days immediately following the accident.”

Plaintiff was notified by a doctor not to return to work after the accident for approximately 5 months. Therefore the defendant failed to portray that the plaintiff did not sustain a “serious injury.”

The NYC Administrative Code transferred liability from New York City to the abutting landowner for falls on sidewalks.  In this case the plaintiff broke his leg on a pedestrian ramp.  The Court ruled that the ramp was not part of the sidewalk and dismissed the case against the landowner.  Read about this trip and fall case here.

The Appellate Division, Second Department recently ruled that jurors should decide if a City of Yonkers street sweeper was operated with “reckless disregard.”  Vehicle and Traffic Law 1103(b) exempts “hazard vehicles” from the rules of the road unless they are operated with reckless disregard.  Yonkers provided evidence that the street sweeper was not operated with reckless disregard but the plaintff provided contrary evidence that it was not.  The court decided that jurors should resolve the reckless disregard issue.  Read about this personal injury case here.

In the Matter of Jeffrey Katz, etc. et al. v County of Suffolk

In this case, Suffolk County appeals a decision from the Supreme Court “…which denied its motion for summary judgment dismissing the complaint.”

In January, 1997, Jeffrey Katz, the infant Plaintiff, was allegedly injured when the 2^nd floor bathroom collapsed beneath him. Suffolk County held the tax deed on the subject property since March 1994, at the time of the occurrence collected the monthly rent from Jeffrey Katz’s mother, Diane Katz.

According to County Law § 53(2), if a county has acquired a property by a tax tile then they may not be held liable for torts “…by reason of such property being defective, out of repair, unsafe or dangerous, unless the county is in the actual physical possession, control and operation thereof as owner….”

The court acknowledged that the Defendant collected rent from Diane Katz, therefore the Defendant has a direct income from the property. The Plaintiff, then, needed to establish that the Defendant “…either created or had actual or constructive notice on the condition.” Constructive notice is a defect that is visible for a sufficient period of time before the actual accident occurred.

The evidence provided by the County was insufficient to establish prima facie and the County did not have actual or constructive notice. Therefore the motion for summary judgment and the complaint was dismissed.

Read more about this Personal Injury case here.

To read about more Personal Injury cases go to http://www.negligenceatty.com/home

In this New York car accident case the defendant’s moved to dismiss the plaintiff’s claim alleging that the Plaintiff did not suffer a serious injury.  The defendant’s doctor failed to give an opinion as to whether the plaintiff was unable to do the ordinary and usual activites within the first 90 out of 180 days following the accident.  Therefore, the court ruled that the defendant’s motion should be denied and the case continue.  Read about this case here.

Matter of Ferraro v North Babylon Union Free School District

In this personal injury case, the infant plaintiff who suffers from developmental delays and other disabilities alleged that he injured himself while operating a heavy, self-closing door at a school in North Babylon Union Free School District (hereinafter the district) while attending a Western Suffolk BOCES (hereinafter BOCES) special education program. Plaintiff caught one of his fingers in the door hinge. This action to recover damages for personal injuries was commenced against the district and BOCES on the grounds of negligent supervision, alleging that plaintiff should not have been allowed to operate the door unsupervised.

Supreme Court denied defendant, BOCES’, motion for summary judgment dismissing the complaint alleging negligent supervision. BOCES then appealed the decision and plaintiffs cross-appealed. Since the infant passed out of the district’s orbit of authority while attending the BOCES program, which had been arranged by the district, the Court was correct in granting the branch of the district’s motion for summary judgment dismissing the complaint alleging negligent supervision.

Although BOCES met the prima facie burden of proving it adequately supervised plaintiff, the plaintiffs raised a triable issue of fact in opposition. Due to the infant plaintiff’s documented serious developmental delays, a triable issue of fact lies in whether BOCES was negligent in permitting him to operate a heavy, self-closing door unsupervised.

Accordingly, the Supreme Court affirmed the order as appealed and cross-appealed from with one bill of costs to defendant North Babylon Union School Free District.

Read more about this personal injury case.

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

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

MUNOZ V. UPTOWN PARADISE

In a slip and fall case the Appellate Division First Department held that there was a triable issue of fact where a florist or his employees had sufficient notice of water on the floor of the shop prior to the plaintiff slipping.  Additionally, the owner of the shop testified that it was a common practice for the employees to shake water off flowers and onto the floor when moving the flowers and assembling floral arrangements.  Accordingly, the judges determined that there were enough issues of fact to have this case go to trial and be decided by a jury. 

Read the entire case here http://www.nycourts.gov/reporter/3dseries/2010/2010_00001.htm

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.