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Attention To Detail Leads To Summary Judgment

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In a recent case, our White Plains Lawyer, Michael Joseph won a summary judgment motion for a client who backed out of a parking spot and was hit by another vehicle. Summary judgment is used to expedite a case when there is no dispute as to the important facts of the case. When there are no issues of fact, it can be determined which party is entitled to judgment without having to proceed to trial. Michael Joseph is considered to be one of the most experienced car accident lawyers in Westchester and has won numerous summary judgment decisions in favor of those injured in car and truck accidents. Summary judgment is a vehicle by which our personal injury attorneys cut through the red tape and delay tactics that the insurance company lawyers use to try and deny justice to our clients. It is an expedited way for an accident victim to get a decision as to who is at fault and puts the insurance companies on their heels.

Our client and the Defendant were in a store parking lot and parked in spaces directly across from each other. Our client backed out, and then came to a complete stop to switch his car from reverse to drive. While our client was putting his car into gear the Defendant backed out of her spot and hit his car. The Defendant, in her affidavit, stated that she checked her mirrors and did not see any cars so she backed up until she felt the impact of her car hitting our client’s.

It could be argued that what the Defendant stated in her affidavit made her seem as though she is a cautious driver, however, this was not the prevailing argument and it was picked apart when Attorney Joseph exploited what the Defendant failed to do. New York Vehicle and Traffic Law § 1211(a) provides that a driver “shall not back [a vehicle] unless such movement can be made safely.” To reverse a vehicle safely a driver must continually look in their mirrors while backing. Since the defendant failed to state that they were looking as they were reversing, they failed to overcome the Plaintiff’s proof that she was at fault.

This was the small detail establishing the Defendant’s negligence. Although the Defendant stated she did not see any cars behind her prior to reversing, Attorney Joseph argued the Defendant’s failure to continuously look in her mirrors as she was backing was negligent and in violation of New York Vehicle and Traffic Laws. This minor fact could not be disputed as it was evidenced by the Defendant’s admission that she only looked in her mirrors prior to backing out. Had the Defendant been looking in her mirrors while backing she would have seen our client and would not have caused the accident.

Based on Attorney Joseph’s motion papers, the Westchester Supreme Court agreed that there was no dispute as to the material facts of the case and held that our client was entitled to judgment as a matter of law.

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Our Manhattan car accident lawyers won a major victory last month in the New York County Supreme Court for a pedestrian who was hit by a taxi while crossing the street. Based upon motion papers alone, our lawyers won summary judgment, which means that the Judge agreed that the taxi driver was one hundred percent at fault and that a trial to determine who was at fault was not necessary. Under New York Civil Procedure Law and Rules section 3212(b) summary Judgment must be granted where there is no defense to the cause of action or that the defense has no merit.

In this particular case, our client was crossing Broadway, in Manhattan’s upper west side and the cab driver who had the green light made a left onto Broadway and hit our client. The taxi cab driver admitted to the responding police officer that he did not see the pedestrian until it was too late.

Often drivers think they don’t have to look out for pedestrians when they have a green light. However, the rule is that a vehicle going straight has the right of way with a green light, but the pedestrian crossing the cross street to the green light (crossing with the traffic going straight) has the right of way and vehicles which are turning must yield to the pedestrian.

In New York, the law is clear that an unexcused violation of the Vehicle and Traffic Law and the City Rules constitute negligence per se. The following rules provide strong evidence that the pedestrian travelling straight with the walk sign in their favor has the right of way compared to a turning vehicle with the green light. V.T.L. § 1111(a)(3), provides pedestrians with the right of way to cross a street when they are facing a green light within a crosswalk. V.T.L. §1146 requires every driver of a vehicle to exercise due care to avoid colliding with any pedestrian. V.T.L. § 1163 prohibits drivers from turning on a roadway unless and until such movement can be made with reasonable safety. Further 34 RCNY 4-03(a)(1)(i) affirmatively requires vehicles with a green light which are turning right or left to yield the right of way to pedestrians lawfully within the intersection or an adjacent crosswalk. Further 34 RCNY 4-03(a)(1)(ii) provides pedestrians facing such a green signal with the right of way to proceed across the roadway within the crosswalk. Moreover, 34 RCNY 4-02 prohibits drivers from operating their vehicles in a manner that will endanger any person. Finally, 34 RCNY 4-04(d) requires that the operator of a vehicle shall exercise due care to avoid colliding with any pedestrian.

Our personal injury lawyers proved that because the taxi driver breached the foregoing state and city laws, all of which imposed a statutory standard of care, he was negligent per se and his negligence was the proximate cause of the accident.

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Our Manhattan personal injury attorneys continue to monitor recent news and provide up-to-date legal analysis pertaining to claims and potential law suits arising from personal injuries.

One of New York’s most recognizable sightings are its yellow cabs, but a few recent accidents serve as a reminder that the legendary icons are as much a danger as any other vehicle on the road. On September 28 of this year a pedestrian was struck by a cab around 1 a.m., as the 26-year-old was trying to cross Pelham Parkway at White Plains Road in the Bronx. The cab driver stopped the car to help the victim and dialed 911. While they waited for the ambulance to arrive, another cab struck the pedestrian. The second driver did not stop, and it is unclear whether or not he was aware that his cab struck the victim. When the ambulance arrived, the victim was rushed to St. Barnabas Hospital, where he later died.

Just a week later, on October 6, 2014, a cab jumped a curb and injured a man on the Upper East Side of Manhattan. It is believed that the cab was trying to avoid hitting a bicycle when the driver lost control of the wheel. Luckily, the pedestrian’s injuries are not believed to be life threatening. New York City’s Taxi and Limousine Commission requires that all yellow cabs and licensed drivers carry a minimum of $100,000/$300,000 in liability insurance coverage. Thus, a single person has a maximum of $100,000 available to them whereas multiple injured persons have a maximum of $300,000 of insurance available. This applies to basic pain and suffering, whereas New York’s No-Fault Insurance system applies to basic economic loss.

An out of control box truck plowed through a crowded Queens bagel store on Wednesday, injuring six people and shattering glass and debris all over. Bagels for You, a popular store in Forest Hills, was filled with customers at 10 a.m. when the walls crashed in and a truck suddenly came crashing into the store. Amazingly, a woman in her 20s, who had been sitting with her mother and newborn child, was thrown to the back of the shop and pinned down. Officials report that the truck’s driver lost control as he was traveling down Queens Boulevard and clipped a parked car near at 73rd Road. He continued half a block, fully out of control, before plummeting into the crowded store.

More news came out this week about the tragic Metro-North derailment in the Bronx that killed four people last year. The National Transportation Safety Board reported that William Rockefeller, the conductor, sped in four out of six runs in the week before the crash. While the cause of the crash is still under investigation, Metro-North has begun implementing an aggressive speed compliance program for its drivers. As for the victims’ families likely to seek damages pursuant to wrongful death claims, the MTA has a wholly owned insurance subsidiary, a captive insurer called the First Mutual Transportation Assurance Company, which will cover part of the liability and losses stemming from the derailment. The MTA has a $50 million per-occurrence all-agency liability coverage through FMTAC, which exceeds Metro-North’s self-insured retention of $10 million per occurrence. On top of that, the MTA has $350 million in liability coverage through commercial markets.

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Our New York City car accident lawyers keep up to date with the various developments on the law involving car accidents. In an extremely unusual application of the emergency situation defense, a Rockland County jury found that a driver who experienced a wardrobe malfunction was not responsible for a fatal accident which occurred when she took her hands off the steering wheel, while speeding and caused a fatality. In a stranger twist, the Second Department Appellate Division, which has grown more and more conservative over the years, actually affirmed the verdict.

Our White Plains car accident lawyers have seen many bogus claims of the emergency doctrine and have always been able to defeat it. In general a careless driver is responsible for the consequences of their failure to maintain control of their vehicle or keep a proper lookout. However, the emergency doctrine recognizes that when a driver is confronted with a sudden and unexpected emergency, which their own actions did not contribute to, they are relieved of liability for an accident. Typical situations in which the doctrine had been implied included situations where debris falls off a truck, which causes a vehicle to swerve or a car suddenly crossing a travel lane or an accident ahead of the car and there are only seconds to respond to the sudden and unforeseen emergency.

The recent Rockland wrongful death car accident case arose from an unusual case where a female driver who was driving while wearing a bikini, crashed her vehicle when a male companion, pulled the string of her bikini which caused her breasts to be exposed. The jury found that the emergency doctrine applied when she took her hands off of the steering wheel to cover her breasts and lost control of the vehicle. Even though the male companion had engaged in similar horseplay earlier and the girl was speeding, the Appellate Court found that the trial court properly gave the jury the emergency doctrine instruction by making a threshold determination that there was some reasonable view of the evidence supporting the occurrence of a qualifying emergency. In other words, the Court found that the verdict was proper so long as there reasonable view of the evidence that the driver’s actions were caused by a sudden and unexpected circumstance. The Appellate Court went on to note that it was for the jury to decide whether the driver was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was one which a reasonable person would have responded. The attorneys made a reasoned argument that since horseplay and distracting behavior by the passenger had been going on for some time, the doctrine did not apply because the driver continued to speed and had at least some warning that the passenger would attempt to pull her bikini strings, since he had unsuccessfully tried the same thing a few minutes prior. In other words, she should have anticipated the action and taken appropriate cautionary steps.

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Insurance company adjusters continue to sink to new lows, to try to cheat injured Plaintiffs out of their rightful recoveries. From calling injured car accident victims and telling them they have no lawsuit and are not injured enough to sue to other lowball tactics, there are no lows to which insurance adjusters will not sink. Our White Plains car accident lawyers have seen all of the tricks,which these adjuster use.

Recently a Brooklyn Supreme Court judge sanctioned an insurance company $10,000 after one of its adjusters initiated contact in the courtroom with a plaintiff in a personal injury lawsuit while the judge was attempting to negotiate a settlement in chambers. In so doing, the adjuster violated the “no contact rule” of New York’s Rules of Professional Conduct. Our White Plains attorneys will continue to protect our injured clients from these insurance company tactics.

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In a recent case, our White Plains car accident lawyer, Michael Joseph obtained a jury verdict of $750,000 for an undocumented immigrant in Westchester Supreme Court. By knowledge of the recent developments in the law in New York concerning the admissibility of immigration status, our Westchester car accident attorney successfully obtained an order precluding the defendants from even asking the injured Plaintiff what his immigration status was. Our White Plains personal injury lawyers frequently represent undocumented immigrants in car and truck accidents, construction accidents, medical malpractice and slip and falls, civil rights violations, among others. With Westchester’s large illegal immigrant population in towns like White Plains, Ossining, Yonkers, New Rochelle, Mount Vernon, Armonk, Valhalla and others.

The law in the State of New York is that a Trial Court has discretion to preclude inquiry into a Plaintiff’s immigration status, even where a lost wage claim is asserted. Where evidence of the Plaintiff’s immigration status is not directly relevant to an issue before the Court, it should be precluded.It is improper for a defendant to suggest that plaintiff is subject to deportation or that he would return to his country, in an effort to suggest that plaintiff would incur lower medical expenses outside the United States. Evidence of immigration status is highly prejudicial and an attempt at jury nullification through an appeal to prejudice. Plaintiff is not precluded from recovering either lost wages or medical expenses because of his immigration status.The law is settled that a defendant may not avoid liability for the Plaintiff’s wages by virtue of the Plaintiff’s status as an undocumented alien. Undocumented immigrants may sue and recover for future lost earnings at the rate of pay they were receiving in the United States. It is error for a Court to allow a suggestion to the jury that plaintiff is precluded from recovering lost wages because of his immigration status. A plaintiff’s status as an illegal alien, in and of itself, cannot be used to rebut a claim for future lost earnings. The federal immigration laws do not make it a crime to work without documentation, but rather they prohibit the tendering of false documents, thus an undocumented alien may be precluded from recovering damages for lost wages only if he obtained employment by submitting false documentation to the employer.

In our Westchester case, we proved that since the Plaintiff was self employed at the time of his accident, there is no issue that he did not submit false information to obtain employment. In fact, it is a misrepresentation of the law to say that plaintiff is precluded from recovering future lost wages because of immigration status because working in the United States without proper documentation is neither a crime pursuant to the Immigration and Nationality Act of 1952 (8 USC § 1324a) nor a bar to the recovery of damages in a civil action for personal injuries. To allow a jury to believe otherwise is error and will cause undue prejudice to plaintiff.

Caselaw has recognized that it is improper for a Defendant to suggest to the jury that Plaintiff’s immigration status prohibits any award of future lost wages or medical expenses. Gratuitous remarks which serve no other purpose but to inflame the jury deprives a litigant of a fair trial. It is axiomatic in the American justice system that a jury’s role at trial is limited to finding the facts and jury nullification is subversive of the rule of law. Jury nullification occurs when a jury-based on its own sense of justice or fairness-refuses to follow the law. Nullification is an assumption of power which the jury has no right to exercise. New York trial courts have a mandated duty to prevent improper and impermissive nullification conduct. Juries cannot be the conscience of the community by violating their oath to apply the law to the evidence.

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New York’s rules of the road are powerful weapons that set firm standards for cars, trucks, motorcycles and buses that operate on New York’s roads. Our New York car accident attorneys have represented thousands of people who sustain serious personal injuries in car accidents. Our White Plains car accident attorneys have extensive experience in analyzing the rules of the road.

In car accidents where motorists collide at intersections or while changing lanes the careless driver often blames the driver who was simply driving straight and minding their own business. New York Courts recognize that a driver who has the right of way is entitled to anticipate that the drivers of other cars, trucks, buses and motorcycles will obey the traffic laws that require them to yield. Our attorneys have won numerous car accident cases with he said, she said, accidents by proving that the other driver violated a rule of the road and that our injured client was traveling at a lawful rate of speed, had the right-of-way with respect to her vehicle and did not have an opportunity to avoid the accident.

If you were injured in a car accident in New York City (Manhattan, Queens, Brooklyn, Bronx), Westchester (including White Plains, Yonkers, Greenburgh, Elmsford, Port Chester, New Rochelle, Scarsdale, Mamaroneck and Rye) or Rockland County, call the New York car accident lawyers today for a free consultation.

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Our White Plains car accident lawyers are seeing more and more slimy and underhanded techniques being used by insurance companies to try and cheat injured car accident victims in New York out of their rightful awards.

The latest of these tactics involves using crooked experts including both defense doctors and supposed biomechanical engineers to offer opinions that the mechanics of the accident are incapable of causing the type of traumatic injuries which the car or truck accident victim sustained. Other hack engineers or quack doctors have tried to testify that pictures of car accident damage or repair bills show such a minimal impact that no injury could have resulted. The implication is clear that these defense experts are trying to get the jury to just assume that the injured plaintiff and their doctors are lying and to tune out the real evidence.

Our car accident lawyers aggressively fight these tactics through pre-trial motions to preclude these types of opinions and to quite often preclude the expert’s testimony all together. Careful examination of the expert’s reports and the law are necessary to fight this battle.

First, our New York accident lawyers carefully scrutinize the expert’s reports. Often these experts do not base the facts which they assume on the actual testimony, but simply assume facts without any foundation. The law in New York is clear that an expert may not render an opinion concerning bio-mechanics of an injury where the expert disregarded the actual facts of the case in forming his conclusion.

Second, our New York injury lawyers carefully analyze the expert’s qualifications. New York Courts recognize that just because a witness qualifies as an expert with respect to certain matters or areas of knowledge, it does not mean that he or she is qualified to express expert opinions as to other fields. Generally, doctors are not qualified to to offer an opinion regarding the biomechanics or physics of the collision, and an unsupported opinion that the mechanics could not have caused the injury is speculative and consequently insufficient to establish that a particular injury was pre-existing. Likewise, while a biomechanical engineer, if properly qualified may testify as to what forces are applied during an accident, they are not qualified to render a medical opinion on causation or lack of causation of an injury. In other words, an engineer cannot state whether a certain accident caused an injury or whether a certain injury was preexisting.

The law in New York also recognizes that expert testimony must pass the Frye test, which means that it must be generally accepted. The Court’s role is to keep untested, unreliable evidence out of court proceedings because the Courts are not laboratories in which to try out new theories to ascertain whether jurors will believe them or not. In general, it is the Defendants burden in seeking to admit bio-mechanical opinion evidence to establish that the expert’s proposed testimony is based on generally accepted methodologies and procedures in the area of biomechanical engineering and that their expert’s theory of causation is generally accepted in the scientific community. Without such a showing, any purported opinion is merely speculative and must be disregarded by the Courts. In fact, a recent decision has held that even where experts are qualified, they still may nevertheless be precluded from testifying because bio-mechanical engineering has not yet gained general acceptance. Other decisions have held that it is not generally accepted in the field of engineering that any relationship exists between the amount of damage and the cost of a repair and the severity of an injury.

Our car accident lawyers appear in all of the Courts in the New York City Metropolitan area, including Manhattan, the Bronx, Brooklyn, Queens, Westchester and Rockland. We have represented thousands of car accident victims in from both New York City and the Westchester and Rockland towns of White Plains, Rye, Scarsdale, Greenburgh, Elmsford, New Rochelle, Mount Vernon, Yonkers, Mt. Kisco, Mt. Pleasant, Armonk, Port Chester, Pelham, Pelham Manor, Hartsdale, Nyack, Spring Valley, Monsey, Clarkstown, Bronxville, and Ossining.

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New York car accident lawyer Michael Joseph had another impressive win in the Queens Supreme Court on the serious injury law issue. Nowadays many less experienced and less savvy personal injury lawyers are avoiding car accident cases where there is no fracture. However, out New York City and Westchester personal injury lawyers are continuing to win these cases.

New York’s law will not let anyone injured in a car accident or hit by a car to recover any money for pain and suffering unless they have suffered a serious injury as defined by New York law. The definition of serious injury is cumbersome, confusing and is often misunderstood by juries. The technical definition of serious injury under New York Insurance Law is a personal injury which causes 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 or impairment.

The last category is often called the 90/180 category. Our New York City car accident lawyers have won numerous cases before getting to trial on the 90/180 category. Usually defense lawyers make a motion to the Court to dismiss the case arguing that certain injuries do not constitute a serious injury as a matter of law. Our car accident lawyers have turned the tables on the defense lawyers and have started moving for summary judgment under the 90/180 day category and obtaining rulings before trial that the Plaintiff has suffered a serious injury. This removes the issue from the case and prevents juries from getting confused on this issue.

Recently our car accident attorneys won yet another case in Queens by winning a summary judgment motion in the Queens Supreme Court which established that our client had a serious injury under the 90/180 law. Our client was a pedestrian who was hit by a car and suffered a knee injury. In general where a Plaintiff does not work for 90 days following the accident, they can establish the 90/180 day category. Even though defense lawyers and insurance companies usually hire doctors to say that Plaintiffs are fine, even when they are not, they cannot usually comment on a injured person’s condition within the first 90 days, when they see the Plaintiff years after the accident. Our New York car accident attorneys will continue to fight for New York’s car accident victims.

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Often people who are injured in car accidents and who don’t have licenses or have suspended licenses are afraid to bring a lawsuit for their accident. They often think that their license issues prevent them from suing. The first step should always be a free consultation with an experienced New York car accident lawyer.

Our New York and Westchester car accident lawyers have successfully handled numerous cases for people injured in car accidents with either suspended licenses or no license at all. The law in New York, is that the license issue can be considered by a jury but is not dispositive. In New York, who is at fault is the central inquiry. For example, someone with a license issue can still win if the other party violated the rules of the road such as rear ending the car which the unlicensed driver was operating or blowing a stop sign or red light. Our White Plains car accident attorneys have represented thousands of people in Westchester and New York City who sustained personal injuries in car accidents.

The New York Courts have held that operating a car, truck or motorcycle without a valid truck, car or motorcycle license or registration are traffic infractions under Vehicle and Traffic Law, however, operating a car, truck or motorcycle without a valid license, registration, or insurance is not sufficiently serious illegal activity to completely bar an injured person’s recovery on public policy grounds.

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This week a wrongful death was suffered by an unfortunate tenant in fire in a Yonkers building. Fire crews battled the fire for several hours prior to getting it under control. Fires present dangers of both person injury and death to both those who live in buildings and the firefighters who battle them. Our accident attorneys have extensive experience in handling fire cases both in New York City and in Westchester. While the insurance industry will claim that fires which are accidental, are not the fault of anybody and just happen. Our New York City and White Plains Personal injury attorneys… Read More

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The first week of February has proven to be a deadly week, with a number of tragic car accidents in the Bronx. Our New York City wrongful death and car accident lawyers know all to well how dramatically a car accident can affect someone’s life. An off-duty New York City Police Officer suffered an unfortunate wrongful death in a car accident in the Bronx this week. The passenger in the vehicle,who was a housing officer, also suffered serious personal injuries. The officer’s car flipped over and then caught fire in a traffic circle in the Pelham Bay section of the… Read More

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The federal government’s Occupational Safety and Health Administration is fining the Tappan Zee Constructors more than $12,000 for last July’s crane collapse. In particular OSHA found that the contractors failed to keep a safe work site, and exposed employees to the risk of injury caused by the falling crane. The incident occurred when a crane, which was driving piles for the new Tappan Zee Bridge’s Westchester-bound bridge collapsed across all lanes of the current bridge. While cranes collapses in Manhattan have become somewhat of an epidemic. there are only a few Westchester maritime construction accidents, who are familiar with the interplay of maritime law… Read More

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Attention To Detail Leads To Summary Judgment

In a recent case, our White Plains Lawyer, Michael Joseph won a summary judgment motion for a client who backed out of a parking spot and was hit by another vehicle. Summary judgment is used to expedite a case when there is no dispute as to the important facts of the case. When there are no issues of fact, it can be determined which party is entitled to judgment without having to proceed to trial. Michael Joseph is considered to be one of the most experienced car accident lawyers in Westchester and has won numerous summary judgment decisions in favor… Read More

 
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