Westchester County

Published on: November 5, 2012

An eighteen-year old resident of an apartment building was walking along the grounds

by Stephen Bilkis

A NYC eighteen-year old resident of an apartment building was walking along the grounds of the apartment building in Florida when he met an accident. He lay on the concrete pavement, unable to move because of a spinal injury. A few minutes later, an employee of the apartment owner was making his rounds of the apartment. He saw the eighteen- year old sprawled on the pavement and thought that he was unconscious due to a drug overdose or because he was drunk. He shook the eighteen-year old and found him to be conscious. The employee told him that he will move him to a more lighted area so that he can help him. The eighteen-year old protested, asking the employee not to touch him or to move him as his spine may be broken. The eighteen-year old protested continuously but the employee did not heed his protests, he dragged the eighteen-year old near the entrance of the building. He then called emergency services who rushed the eighteen-year old to the hospital. When the police and emergency services arrived, the employee told the police that he moved the eighteen year old because he thought that he was just passed out because he was drunk or overdosed from drugs. He had no idea he was injured. The incident resulted in the eighteen-year old being disabled due to quadriplegia or paralyzed from the neck down.

The eighteen-year old then sued the Westchester apartment owner and his insurer. He did not include in the suit the employee of the apartment owner. He wanted to call him as an adverse witness because the employee made inconsistent statements before the police (at the time of the incident) and then when he was deposed (before the trial) which testimonies and statements totally contradicted his testimony at trial. The trial court refused the eighteen year old’s request to call the employee as an adverse witness. The trial court held that there was a question as to whether the employee was really employed by the apartment owner; the trial court also held that the employee could not be called as an adverse witness because he was not a party to the case or listed as a party defendant in the damage suit.

The apartment owner and the insurer based their defense on the Good Samaritan Act. They claim that the employee was immune from a suit in damages because he was only trying to help. Under Florida Law, bystanders who help those who were injured cannot be sued for damages if the person they aided suffered injury in the course of being rescued or aided. They also claimed that even if they were found to be liable the amount of lost earning capacity of the eighteen year old cannot be determined because the eighteen-year old was a career criminal who had no real job or job prospects as he dealt in drugs and petit larceny.

Published on: September 30, 2012

The question about what constitutes a severe injury

by Stephen Bilkis

The question about what constitutes a severe injury under the Insurance Laws of New York is one that is battled in court on a daily basis. The Insurance Laws of New York detail the guidelines that define a serious injury. Not every injury will qualify as serious under the statutes. In order for an injury to qualify as serious, the person must have lost a limb or the use of that limb. If the person is claiming that they lost partial use of the limb, they will have to provide objective evidence that shows exactly how much of a difference there is between what that person can do and what an uninjured person that person’s age is capable of doing with that limb. There must be an objective measurement of the difference. That measurement must be provided by a medical test that is performed by a medical doctor or chiropractor. If the test is subjective, it relies on the personal opinion of the doctor to interpret it. It will not be sufficient to keep the case from being dismissed. In fact, it can be so difficult to prove a serious injury, that it is routine for a defendant of a personal injury lawsuit to file a motion that the injury sustained by the complainant is not severe and requesting the dismissal of the case.

Anytime that a person is going to court for a personal injury, it is an emotional time. Most people who have sustained a serious injury have seen their lives completely altered overnight from the accident. They know that they were injured severely, and more often than not are offended by the suggestion that their injury is not severe. A court of law in Westchester is no place for sentiment. One of the advantages to having an attorney handle your case for you is that they are not offended by the suggestions or claims of the opposing side. It is critical to prove the injury objectively. Just saying that you are injured or even having a doctor say that you are injured is not sufficient to prove your case in a court of law.

The doctor that is seen will have to perform medical tests that clearly show the extent of the injury. That means that an MRI or CT Scan will not be sufficient on its own. In the case of spinal injuries, there are nerve conductivity tests that must be performed. These tests demonstrate the nerve damage that causes the pain. They are objective and there are numerical figures that are assigned to the amount of damage that is present. The doctor is then able to testify in court about a numerical figure provided by a test that was conducted without personal opinion input. Even then, the doctor’s testimony must be sworn or the report certified in order for the test results to be admissible.

Published on: September 7, 2012

This involves a case where the court ruled that plaintiff failed to demonstrate a prima

by Stephen Bilkis

This involves a case where the court ruled that the Westchester plaintiff failed to demonstrate a prima facie case that he suffered serious spinal injury within the meaning of Insurance Law Section 5102 (d).

Plaintiff, age 24, alleged that on August 21, 2006, at approximately 11:20 a.m., a motor vehicle owned and operated by him came into contact with a vehicle owned by defendant owner and operated by defendant driver. The car accident occurred on Old Country Road, at its intersection with Frost Street, County of Nassau. Defendants moved for an order dismissing plaintiffs complaint pursuant to CPLR §3212, on grounds that plaintiff failed to sustain a “serious injury” within the meaning of Insurance Law §5102(d).

Insurance Law §5102(d) provides that a “serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) 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 or impairment” (numbered by the Court). The Court’s consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body function or system.

Published on: August 20, 2012

A police officer was finishing his shift in 1953

by Stephen Bilkis

A NYC police officer was finishing his shift in 1953. He opened the passenger door of the police car he was driving when he got to the precinct and was removing his shotgun from the car when it suddenly fired. It wounded him and he needed an operation to remove the bullet which had lodged in his abdomen.

He eventually recovered after treatment. He received compensation from the Workmen’s Compensation Board for his loss of earnings during the time of his confinement, treatment and recovery from the gunshot wound. The case was closed in 1957 when the physicians who treated him declared that there was no more disability flowing from the gunshot accident.

Nine years later, in 1962, as he was riding in his police car, he figured in a motor vehicle accident. He sustained injury to his neck and spine. The police officer was paid his salary for the several weeks of his confinement, treatment and recovery from the automobile accident. The police officer sued the owner and driver of the motor vehicle that had caused his spinal injury and the case was settled by them and compensation was duly paid for his spinal injury.

Published on: June 3, 2012

The 1978 case of a white-haired man arrived at the Circuit Court one morning.

by Stephen Bilkis

The 1978 case of a white-haired man arrived at the Circuit Court one morning. The man entered the courtroom to testify in his $1 million lawsuit he filed against Edward H. White II Memorial Hospital.

He filed the lawsuit because he fell out of bed while admitted in the facility. The 50-year-old man claimed that the hospital staff was negligent when they left the railing down on his hospital bed. When he fell, he suffered a spinal injury.

The hospital refuted those claims and said that the patient had raised such a ruckus about having it up that they lowered it – against hospital policy – in order to hopefully prevent another coronary episode in the gentleman.

Published on: May 29, 2012

Roderick McCauley was driving east on Route 3

by Stephen Bilkis

Roderick McCauley was driving east on Route 3 near the approach of the bridge crossing the Raquette River. He noticed a snow plow stopped at the edge, and then it moved forward. It again stopped and moved forward towards him. When he saw this, he drove his vehicle to the right. According to a report, his right wheels were on the shoulder. He drove in the same position at a speed of about 20-25 miles per hour until he passed the snow plow. He tried to turn the car back to the paved road. The front wheel went up, but as he accelerated to bring the rear wheel up, the back end shook and the car skidded across the road. It went through the space in between the guard posts, over the bank and into the river. There were five other people in the vehicle with Mr. McCauley. McCauley and two other passengers drowned, and the three others survived but suffered spinal injuries.

The representatives and the survivors filed a case against the State for the negligence in maintaining the roads, which included the shoulder. They said that the pavement was raised above the shoulder and that there were no guard rails. The Court of Claims in Queens and Westchester said that the elevation was not important because they did not have a reason to be on the shoulder as there was no emergency. They ruled that there is no liability from the State. They said that the car skidded because of the negligence of Mr. McCauley.

The Supreme Court Appellate Division received an appeal for this ruling and reviewed the facts. A Lawyer says that guard rails are set up to protect traffic from special hazards. Special hazards are high embankments, a deep and rapid river, or a sharp mountainside drop. It is their opinion that this is a negligence of the State in the maintenance. They said that it played a big part in causing more casualties. They also said that a careful driver who just trying to avoid an accident from happening should have been able to use the shoulder with no problem if properly maintained. It is not negligence for a driver if he used the shoulder to avoid an oncoming snow plow that may occupy part of the lane that he was using. According to the witnesses, they slowed down in the approach. The contest that he should have stopped on the shoulder or not have continued driving and causing the spinal injury on the shoulder still requires that the State maintain the shoulder of the road properly as it could have cause an accident. If Mr. McCauley was not a cautious driver, he would not have been using that shoulder in the first place and may have hit the snow plow instead.

Published on: April 28, 2012

New Scientific Model May Help Spinal Cord Injury Patients and Physicians

by Stephen Bilkis

A new scientific model may help spinal cord injury specialists more quickly determine whether a patient has a good chance of walking again before surgery and physical therapy. Current models include extensive tests that may not be as conclusive. The new model was developed in the Netherlands and is based on many different studies and findings by experts in the area of spinal injury.

Components of this model include a patients’ age, range of current motor skills, and sensitivity to touch. Older tests, such as the AIS grading system, take much longer to perform and may not be as accurate. The researchers who compiled the information to create the new model claim specialists need to be experienced in performing physical examinations of those with spinal injuries in order to make a proper diagnosis using the components in the model. Many specialists in Staten Island and Westchester have the ability to perform these examinations and should be able to tell if a patient will be able to walk again.

This study about the new model was published in The Lancet. Many new studies are available at different times during the year and provide researchers around the world with new and useful information. Being able to predict quickly whether a patient will be able to walk again may prevent painful and unnecessary surgery or a grueling physical therapy regime that could cause additional injury. This may also lower medical care costs by allowing patients to leave the hospital earlier or reduce medications prescribed if additional surgery is not necessary to repair the spinal cord.

Published on: April 16, 2012

Fish May Lead to Spine Cures

by Stephen Bilkis

There is no way to repair the spine after catastrophic damage – at least not yet. Scientists have told sources that there may be a cure from an unlikely source: fish.

According to research, fish have the amazing ability to regenerate their spinal cords, not only able to heal spinal injury, but to have full restoration of function. In time, they can be as good as new.

Two scientists have been closely studying this ability and have related some of their findings to doctors. They are working hard to learn how fish regenerate their spinal cords, so they can replicate the same in humans. “To cure spinal cord injury would be amazing and incredible for people who are suffering,” said one biologist.

Published on: March 25, 2012

New York City entered into a contract with Trocom Construction Corp

by Stephen Bilkis

New York City entered into a contract with Trocom Construction Corp. for them to do reconstruction work for Henry Hudson Parkway. The contract included a provision for Trocom Construction Corp. to cover any claim against the State that is from Trocom Construction Corp.’s negligence or failure to meet the terms or the law. The city granted Trocom Construction Corp. permission to restrict traffic on Henry Hudson Parkway to do their work. On the southbound Parkway from West 125th Street to West 100th Street they were allowed to impede traffic at certain hours, and at night when the work was being done. A source said it was limited to right bound lane. The site was required to be well lit. About six months after it was changed to include the right and center lanes but only from one in the morning to six thirty in the morning.

They started to work a few days after the permission was changed. They started setting up a catch-basin on the right lane. The work was indicated by barrels, and they had placed a truck with a flashing arrow board. The barrels were placed from the start of the lane to the truck and up until the end of the construction area. Inside the closed lane was an air compressor.

The same that they started the construction, Richie Vasquez, Rafael Costanza, Osvaldo Rolon and Robert Coello were driving on the southbound lane at around three twenty in the morning. Mr. Coello said that they were travelling at around 50-55 miles per hour, says a report. The speed limit in that road was 50 miles per hour. Another vehicle was coming up fast behind them, and they sped to about 60 miles per hour and swerved to the left fearing that they may get hit. He hit the left curb and lost control of the car. He said that the car spun, and he let go of the steering wheel and did not try the break. The vehicle turned onto the construction zone and hit the air compressor then the guard rail. The car went airborne and landed in the Hudson River. Mr. Rolon died of spinal injuries, and the others were injured.

Published on: March 13, 2012

Daniel Augustin was the owner of the vehicle involved and the one who also filed the complaint.

by Stephen Bilkis

According to a report, this is a case of car accident resulting in spinal injuryand to total loss and insurance claims that resulted in a long argument in court because of technicalities about the dates and other things as well. Daniel Augustin was the owner of the vehicle involved and the one who also filed the complaint. Gilot Insurance and Colonial Penn Insurance Companies are the insurers being questioned by the court regarding Augustin’s claims.

In June of 1989, Augustin purchased a 1984 320-I BMW which he applied for a comprehensive car insurance through Gilot Insurance Company. But because it will take time before Augustin could get the title for his car, Gilot advised him to purchase first a Liability Car Insurance which will protect him for bodily injuries which may occur during an accident while waiting for the comprehensive insurance. Gilot promptly prepared the application in behalf of Augustin since this is permissible under the law. In return, New York Automobile Insurance Plan assigned an insurer to Augustin which turned out to be Colonial Penn Insurance Company. Penn consequesntly insured Augustin’s car from June 10, 1989 to June 10, 1990.

Still according to the facts, Augustin returned to Gilot on June 23, 1989 to present the title for his car and to change his liability insurance to a comprehensive insurance plan. Gilot prepared and filled out the forms necessary for the change and mailed it to Penn the following day by regular mail. Augustin also paid the first premium through Gilot who said and testified that Penn authorized it to receive the premium payment on Penn’s behalf.