Last updated 4 years ago
A recent case in Queens County shows that not all eye injuries are “serious injuries” under New York law. This case also points up the challenges an injured plaintiff faces in getting an automobile accident personal injury case to trial.
New York has no-fault insurance, which generally speaking allows automobile accident victims to recover compensation from their insurance company for injuries sustained in an accident, without regard to who was fault. Your recovery is limited, however, to the amount of coverage on your policy, which may be as little as $25,000. This no-fault system does not allow you to sue the other driver for negligence, unless you suffered a “serious injury” as that term is defined in New York Insurance Law 5102(d). Included in this definition would be a “permanent loss” or “permanent consequential limitation of use” of a body organ.
In the recent case of Thomas v. Smith, the plaintiff claimed that her right eye was injured while riding in defendant’s car. The court dismissed the case on a summary judgment motion by the defendant, meaning that there were no triable issues of fact for a jury to decide, and the case could be determined by the judge as a matter of law.
While the plaintiff must make an initial claim of a serious injury, the defendant can rebut this claim by submitting statements from medical experts who examined the plaintiff and did not find any evidence to support the plaintiff’s claim. If that happens, the plaintiff then has the burden of overcoming the defendant’s evidence by showing that there is a factual issue regarding whether the injury was serious or not that should be decided by a jury.
In this case, the defendant had the plaintiff examined by an ophthalmologist who said there was “no evidence of any damage or injury to the right eye,” “visual acuity is completely normal,” and there was “0 percent visual disability.” The report of the plaintiff’s doctor, on the other hand, mentioned only “endothelial cell damage” and speculated that this could possibly require treatment and surgery in the future. The plaintiff’s doctor did not find any impaired vision, and the plaintiff herself testified that she did not have any pain in her eye. This collection of facts were enough for the court to dismiss the case in the defendant’s favor.
When you are injured in an automobile accident, you probably feel that your injuries are indeed serious, and you want to be compensated for the damages caused by another’s negligence. But achieving a successful recovery requires an in-depth knowledge of the law and the ability to prepare and present a persuasive case that can overcome the challenges mounted by the insurance company lawyers. If you have been injured in a New York City automobile accident, contact Leandros A. Vrionedes, P.C. at 800-465-8743 for a free consultation.
Last updated 4 years ago
In the case of Naughton v. NYC, the plaintiff construction worker was injured when he fell fifteen feet while unloading bundles of curtain wall panels off a flatbed truck. The plaintiff was instructed to climb on top of the bundles to attach them to a crane for off-loading. Plaintiff’s request for a ladder was denied. When one of the 10-foot bundles attached to the crane began to swing toward the plaintiff, he had no way to get down safely from the truck to avoid being struck, causing his fall to the street below.
The appeals court held that Naughton should have been granted summary judgment in his favor on the issue of the contractor’s liability. New York Labor Law section 240(1) places a nondelegable duty on the general contractor to provide safety devices to protect workers from gravity-related injuries. Here the contractor could be liable in two different ways – for not providing a ladder and for not providing a secure hoist for the bundles. Whether the accident occurred because the worker fell or because the bundles were swinging free, or a combination of both, 240(1) covers both types of situations.
New York labor law provides a simple equation regarding a general contractor’s liability for a construction accident: statute violated + proximate cause = liability. Yet these cases continue to be litigated and appealed and vigorously defended by contractors and their insurance companies who claim that the statute cited does not apply, that the statutory violation was not the cause of the action, or even that the contractor is not a contractor within the meaning of the law. If you have been injured in a New York City construction accident, contact Leandros A. Vrionedes, P.C. for an attorney ready to take on the construction companies and hold them accountable for their negligence or misconduct. Call us at (800) 465-8743.
Last updated 4 years ago
You might expect that the government should manage its property so that it is safe to use – a duty which is regularly imposed on private property owners. If a city builds and maintains a park, providing lighting and security personnel to afford a safe environment, you would think that the municipality would be liable when these security provisions prove inadequate to protect a victim from an assault. Yet the courts continue to hold that a municipality is not liable when such an assault occurs unless the injured plaintiff can prove that the city owed a special duty to protect the plaintiff.
In Salone v. Town of Hempstead, the appellate court overturned a Nassau County trial court and held that the town of Hempstead in Long Island was not liable for inadequate security when a teen was beaten at a public park. According to the court, the town “owed no special duty” to the teen and had no specific duty to protect him.
Municipalities acting in the role of a property owner or landlord are subject to the same tort law principles as private landlords, but public entities are immune from negligence claims when they are performing their government functions, including police protection, unless the plaintiff can show a special relationship which created a specific duty to protect him or her.
In Salone, one park employee was on break and another was in the office when the attack occurred. The court held that questioning the adequacy of security resources implicates the governmental function of the municipality, and not its role as a property owner.
This concept was again cited by a Queens County court in Moreno v. Sports Leisure and Entertainment RPG, when a youth was assaulted during a soccer game at P.S. 214. This court cited a multi-factor test required to establish a “special duty,” including 1) assumption of an affirmative duty to protect the person, 2) knowledge by the municipality that inaction could lead to harm, 3) some form of direct contact between the municipality and the person, and 4) reliance by the person on the municipality’s affirmative duty to protect him or her.
Establishing municipal liability for inadequate security can be a tough hurdle to overcome on the path
toward recovery. If you suffered an attack or other injury on government property, contact Leandros A. Vrionedes, P.C. to discuss whether the government failed in its duty owed to you.
Last updated 4 years ago
If traveling on New York City buses, you should expect to encounter plenty of jerks along the way. No, not the people you meet; they are great. But the bus itself will jerk and jolt as it starts and stops, maneuvering from traffic to curb and back again. Some of these movements will be more sudden and violent than others. If a sudden bus movement causes you to fall and results in an injury, is the bus company liable, or is this just something that you have to learn to live with? The answer is, it depends.
Buses and common carriers can be liable when their passengers are injured due to a sudden, abrupt movement, like a turn, start or stop, but only if the injured plaintiff can show that the movement was “unusual and violent.” The plaintiff must do more than just characterize the motion of the bus as unusual and violent in the complaint. The plaintiff must show it by some objective evidence, such as by showing the force propelled the plaintiff halfway down the length of the bus.
These requirements were recently addressed by the Nassau County court in Jones v. MTA. In that case, the plaintiff fell when the bus pulled out from the curb and into traffic “abruptly” and made a “sudden movement” into a moving lane. The court found that this was merely the plaintiff’s characterization of the bus movement, despite the fact that the plaintiff’s fall caused her “to sustain a facture and tendon tear requiring surgical intervention.” The fact of her injury alone was not sufficient for the court to accept the bus’ movement as unusual or violent, and the court dismissed the case.
We have talked in this blog about what it takes for a plaintiff to survive a motion for summary judgment (see Not All Eye Injuries Are Serious Injuries). Here the defendant was able to convince the court that the plaintiff’s initial showing was nothing more than her own characterization of the stop as sudden and violent. Expect the defendant in any case to strongly deny liability, and be prepared to marshal the facts in your case to support your position from the very beginning, or your case may be over before it is even started. If you have been injured while traveling on a bus in Long Island or throughout the New York City metropolitan area, contact Leandros A. Vrionedes, P.C. for a free consultation with an experienced New York personal injury attorney.
Last updated 4 years ago
New York Labor Law 240(1) requires “contractors and owners and their agents” to provide scaffolds, ladders, hoists and other safety devices to protect workers from gravity-related hazards, such as falls or falling objects, during construction projects, including erection, demolition, repairing, painting, and more. Section 241 places duties on “contractors and owners and their agents” in construction, excavation and demolition to protect workers by providing adequate supports to walls and floors, among other things.
With so many parties involved in a major construction project, it can be difficult to determine who is responsible when a workplace injury occurs. A diligent plaintiff’s lawyer will try to identify all the different owners, contractors and subcontractors who may be potential defendants, but this often leads to a series of complicated motions and cross-motions, as every party tries to avoid liability and point the finger anywhere but back at itself.
In the recent case of Naughton v. NYC, a construction worker was injured when he fell from a pile of curtain wall panels stacked on top of a flatbed truck. The worker was off-loading the panels by attaching them to a crane, but the bundles were not properly secured and one swung into the worker, knocking him down 15 feet to the street below. Even worse, the worker had not been provided with a ladder but was made to climb onto the bundles on top of the truck, so he had no way to get down from the truck safely to avoid being struck.
The accident occurred during a project to renovate the Family Court building in Lower Manhattan. Naughton was an employee of Metal Sales Co., Inc., which was hired by W & W Glass Systems, Inc. to unload and install the curtain wall panels. W & W Glass had been hired by Petrocelli Construction, Inc. to handle all the curtain wall, glass and stone work on the project. Petrocelli was the general contractor for the job, except that when it got sued, it claimed that it was not a “contractor” responsible for Naughton’s safety under section 240(1), because it did not supervise his work.
The court didn’t agree with that argument. Petrocelli had authority and control over the work site, and Petrocelli hired the subs (even though Naughton’s employer was a sub-sub hired by the sub hired by Petrocelli). Whether Petrocelli actually supervised the work in question did not determine the outcome. The appellate court reversed the lower court’s dismissal of Naughton’s 240(1) claim. Not only did the court reinstate the claim, but it granted summary judgment for the plaintiff, holding Petrocelli liable as a contractor.
If you were injured on a construction project, be sure to contact an experienced construction accident attorney who can untangle the situation and seek compensation from all the appropriate parties. In New York City, contact Leandros A. Vrionedes, P.C. for assistance at (800) 465-8743.