Published on:

After the child expired, a CAT scan and retina exam was conducted on the child and the doctors concluded that the bleeding in the brain had resulted in the presence of bruises in the child’s brain. The doctors wrote their opinions on the child’s medical chart: they found that the child died due to injuries consistent with shaken baby syndrome.

Since the child did not die of natural causes, a post-mortem examination was performed by a medical examiner. He noted that the child seemed dirty and disheveled. Dirt was found under the nails and the child had a bald spot in the back of her head. The cause of death was whiplash and broken spine due to shaking and blunt force trauma to the head which caused bleeding in the child’s brain. The medical examiner found bruising in the muscles around the cervical spine and in the thoracic spine. When the child’s spinal cord was examined, there was tearing and bruising present. The child’s death was ruled a homicide.

The mother was brought the police precinct where she was interviewed by a police detective. She admitted to having shaken the child and once or twice hit the baby in the bottom area. She blamed her live-in partner of having killed her baby. The mother gave statements to the assistant district attorney who interviewed her on camera. The district attorney gave the mother a doll so that she can demonstrate how she handled her child. She took the doll by the armpits with her thumbs on the baby’s chest and her fingers on her back. She then shook the doll four times and the doll’s head bobbed back and forth. She also demonstrated how she punched the baby in the head as he sat on her lap facing her when he woke up fussy at 3am.

Six months before the seven month old baby’s death, a social worker had been visiting the mother’s older sister, two years old, who was placed in the custody of her maternal grandmother because tthere was already a suspicion that the two-year old daughter was being neglected. Upon the seven month old baby’s death, child abuse charges were brought against the mother of both her seven-month old son and her two year old daughter. The prosecution claimed that although there was no direct evidence of the abuse of the two-year old daughter, there must be a finding of derivative abuse of her two year old daughter who was present in the same apartment at the same time when her seven-month old sibling was severely assaulted and abused by the mother.

At the trial, the mother did not testify. The mother’s lawyer argued that although there can be a finding of severe abuse of the seven month old son, there can be no finding of derivative abuse of the two year old daughter absent any allegation or proof of such derivative abuse.

The Court found that the two-year old daughter was derivatively abused when her seven month old sibling was subjected to the severe abuse that caused his death. The daughter lived under a constant and substantial risk of death even if she was not the child targeted for abuse The People have succeeded in proving aggravating circumstances and the presence of reckless and intentional acts that showed a depraved indifference to the life of her son.
Continue reading

Published on:

An old woman, 95 years of age, is a patient at a certain Staten island hospital. On 9 June 1998, she became comatose, cyanotic and unresponsive after she became disconnected from her ventilator machine. An employee of the hospital heard the old woman’s room alarm sound but the alarm at the nurses’ station failed to sound. Hence, it could not be determined as to how long the old woman remained disconnected from the ventilator. Respirator assistance was then provided to the old woman by the medical staff of the hospital. Thereafter, she was immediately transferred back to the cardiac care unit, which is where she had been prior to the ventilator incident, and there she received intensive therapeutic care and massive blood transfusions. From 10 June 1998 through 11 June 1998, the consulting neurologist indicated in his progress notes that the old woman had a guarded prognosis and was not receptive to outside stimuli. From 12 June 1998 through 17 June 1998, the progress notes indicated that the old woman was improving. The old woman’s neurologist then noted that she was at baseline, neurologically stable. In other words, the old woman’s neurological condition returned to the state that it had been prior to the ventilator disconnection. Thereafter, the hospital took several remedial measures to prevent any future incidents of this type. The hospital’s Code 15 committee reviewed the old woman’s case to decide whether or not it warranted Code 15 treatment, which consists of reporting to the Agency for Health Care Administration or AHCA within fifteen days of the incident, but later voted against such Code 15 treatment, believing that since the old woman recovered to her neurological baseline, no brain damage or brain injury had occurred. Instead of filing the incident as a Code 15, the hospital reported the occurrence as an adverse incident in its Annual Report of Incidents.

Consequently, the AHCA filed an administrative complaint against the hospital and contends that the hospital violated the law by reason of their failure to report a hypoxic event that caused brain damage to a patient as a Code 15 occurrence.

Sometime in December 2000, a formal hearing was held. After that, the administrative Law Judge or ALJ concluded that the old woman did in fact suffer from a brain damage, a transient or temporary brain damage, and the hospital should have reported the incident as a Code 15; and recommended that AHCA had justification to levy a $5,000.00 administrative fine against the hospital.

The hospital now appeals the aforesaid order.

The first issue is whether or not the hospital was required to report the incident to the AHCA.
Under the law, the hospital, as a licensed hospital facility, is required to report to AHCA within fifteen days of occurrence, any adverse or untoward incident that results in a brain or spinal injury to a patient. The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action. An agency’s interpretation of the statute it is charged with enforcing is entitled to great deference. However, a court need not defer to an agency’s construction or application of a statute if special agency expertise is not required, or if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute. If the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain meaning. When necessary, the plain and ordinary meaning of words in a statute can be ascertained by reference to a dictionary.

Here, the subject statute provides for the term “brain damage”, which exists under the list of every potential personal injury enumerated therein, separate and apart from any condition that results in a limitation of neurological, physical, or sensory function which continues after discharge from the facility. Thus, it is irrelevant under the injury or adverse or untoward incident, whether any brain damage in fact continues after discharge from the facility. Upon a reading of the subject statute, the words clearly mandate that whenever a brain or spinal injury to a patient result, it needs to be reported as a Code 15 occurrence. There is no word permanent before the word brain injury. In fact, the only term in the list of injuries enumerated, that the Legislature described as permanent, is that of disfigurement. No such other term modifies brain damage. Thus, since the Legislature did not modify the term brain damage with any word such as permanent or temporary, this intentional legislative omission cannot be lightly disregarded. The rule is, courts are not at liberty to add words to statutes that were not placed there by the Legislature. Thus, the Queens court finds that the plain meaning of the term is clear and unambiguous.

Moreover, under the Webster’s Third New International Dictionary, the word “damage” is defined as a loss due to injury; injury or harm to a person, property or reputation; while under the Black’s Law Dictionary, it is defined as a loss or injury to person or property. Obviously, this dictionary definition does not confine the term to only permanent injury. Thus, based upon the plain meaning of the subject statute, the court finds that brain damage can result even if a patient, such as the old woman, returns to a neurological baseline.

The second issue is whether or not the requirement of reporting any incident of brain damage to AHCA is indeed a logical interpretation of the applicable statute.

As a rule, once an enumerated incident occurs, a licensed facility must report to the agency within fifteen days. If a facility does not have to report an incident caused by a ventilator disconnection until the facility learns whether or not the incident is of a permanent nature, then in many cases it would be impossible for the facility to report to the agency within fifteen days.

Here, while the old woman did begin to return to a neurological baseline within three to four days, it is also quite possible that the old woman could have remained comatose for months before returning to baseline. If the court would rule that he hospital was not required to report the incident because the old woman later recovered, this outcome is not reasonable and would render the fifteen-day reporting requirement period dependent upon the length of the personal injury instead of its severity. Thus, the court finds that the hospital is certainly required to make the report. This interpretation of the subject statute renders a more logical outcome.

Lastly, the third issue is whether or not AHCA’s construction and interpretation of the term “brain damage” were vague and unconstitutional as applied to appellant, but AHCA argues that appellant waived this constitutional challenge by failing to raise this issue timely.
Under the rules, constitutional challenges can be raised for the first time on appeal. Administrative agencies lack the power to consider or determine constitutional issues. Courts have ruled that the administrative process cannot resolve a constitutional attack on a statute, rule or regulation; and that a party is not required to argue the facial constitutionality of a statute before an administrative agency because the agency lacks the power to declare a statute unconstitutional.

Here, since the order appealed from was decided by an administrative agency, the hospital can challenge the constitutionality of AHCA’s action for the first time in appeal. Nonetheless, the subject statute is clear and unambiguous; and, the rule is, if the record demonstrates that a party engaged in some conduct that is clearly proscribed by the plain and ordinary meaning of the statute, then that party cannot successfully challenge it for vagueness. The AHCA’s construction and interpretation of the statute are not vague and were not unconstitutionally applied to the hospital. Thus, by not reporting the ventilator incident as a Code 15 occurrence, the hospital undoubtedly violated the statute.
Continue reading

Published on:

Depression is a disease that affects many Americans. In recent years as the unemployment rate has skyrocketed, depression has increased as well. Workers who find themselves in vastly different life circumstances than they had planned for, are likely to begin to suffer from depression even if they never have experienced problems in the past. A person who is injured while on the job and finds themselves disabled is more likely than any other unemployed person to suffer from depression related illnesses. A disabled Nassau worker has gone virtually overnight from being a strong active employed person to being bedridden for several days or weeks and unemployed. The new wording to the Family Medical Leave Act states that if a person is catastrophically injured on the job, their company is only required to keep their job open for them for twelve weeks. At the end of the twelve week period, that injured employee may be fired and a new person hired to fill their job. The days of companies and even government entities standing behind an employee who has been injured on the job are over.

That was the situation that one New York highway department worker found himself in when he was struck by a car while at work. He sustained serious personal injury from this accident in December of 1995. His spinal injury left him disabled and unable to return to work. He began to suffer from depression and in January of 1998, his wife found him dead by his own hand. She filed a request for workers compensation death benefits. Her contention was that her husband committed suicide because of his depression which was directly related to the accident at work. A Workers’ Compensation Law Judge agreed that the wife should be granted death benefits. The Workers’ Compensation Board determined that she should not be awarded death benefits because they found that there was no causal relationship associated to the accident and the husband’s suicide. The wife filed an appeal of their decision.

She based her appeal on the fact that death benefits are deemed appropriate if the work injury results in insanity, brain injury, brain deterioration or a pattern of mental deterioration which may culminate in suicide. She also contends that there was no lawyer on the board to evaluate the application of law in this case. According to the Laws of New York State, in order for this woman to be awarded compensation, she must show that there was a causal link between the accident and her husband’s suicide. In order to demonstrate a causal link, she must present competent medical proof that her husband suffered from a mental deterioration brought on by the accident that ended in him taking his own life. The board is required to give more credence to an opinion based on medical evidence, than they are their own opinions that are not based on medical knowledge.

In this case, the wife presented only one medical expert to prove her case. The doctor that she presented was a board certified psychiatrist; however, he had never actually treated her husband before his death. The Suffolk doctor based his opinion only on the written medical records and correspondence with the man’s wife. The court did not feel that this was a sufficient medical opinion in light of the fact that the doctor had never even met the injured man. The medical records that were produced from doctors who did actually treat and know the man before his death showed no mention that the man was suffering from depression or any other type of mental illness. Based on this information the court agrees with the Workers’ Compensation Board that there is not enough evidence present to grant her a death benefits claim.
Continue reading

Published on:

Last month, the March of Dimes in NYC received more funding from the provincial government to help open the Acquired Brain Injury Congregate Care Home, a brain injury care home designed and being built to offer support and services for individuals living with brain injuries and their families.

Acquired brain injury is the result of a traumatic or non-traumatic event, which can produce temporary, prolonged, or permanent disability in cognitive, emotional, behavioral or physical functions.

The announcement said March of Dimes will get another $193,267, in addition to the $810, 000 already provided by the local province.

The March of Dimes plans to convert a former school on Bancroft Drive into an eight bedroom care home. The home will offer residents 24-hour support and access to a psychologist, occupational therapists, and speech and language specialists. The home will include a therapy space, a dining room, and a lounge area.

A Brain Injury Lawyer explained that this facility is important because individuals who live with a brain injury will be provided on-going rehab and support – something that is severely lacking in some environments. Specialty facilities are needed because there is strong evidence that excellent care evolves into recovery and a satisfactory life.

The project manager in Queens with MHPM, a local company specializing in project management and leadership, is supposed to act on behalf of the March of Dimes during the design and construction phases of the home’s development.

The home is expected to open in the summer of 2011. It will also provide 29 new jobs, 16 full time and 13 part time positions for the residents in and around Sudbury.

March of Dimes is a community-based rehabilitation and advocacy charity for people with physical disabilities. A doctor says that the organization has worked tirelessly to move the project forward. The much-needed facility will give families caring for their brain-injured loved ones peace of mind.
Continue reading

Published on:

A Pensacola, Florida, man is accused of violently pushing his 4-month-old son which caused the child to suffer a traumatic brain injury (TBI). Bond was set for the man at $150,000.
The 20-year-old father, of the 200 block of Marigold Drive was arrested and charged with three separate counts of aggravated child abuse.

As of late last week, he was still in the Escambia County Jail.

According to an expert in Nassau, the child was apparently brought to a hospital by someone close to him. The exact details of that are not known at the present time. The Sacred Heart Hospital contacted the Sheriff’s Office when they suspected the child’s injuries resulted from abuse.

The father initially told deputies that his infant son regurgitated some food and became unresponsive, but he later admitted that he had been sitting on the floor holding his son. The child was crying so much that the father became frustrated and “pushed the infant backward causing the infant to hit his head on the floor.”

In America, a Suffolk Attorney says, children suffer daily from this hidden epidemic known as child abuse. The epidemic covers every socioeconomic level and reaches across cultural and ethnic boundaries. Victims can be found within all religions and at all levels of education.

Every 10 seconds a report of child abuse is made. That tallies to over 3 million child abuse reports that are made annually; this number is not inflated for reports with multiple children listed. In 2007, for instance, over 5.8 million children were involved in the 3.2 million reports. In approximately 10.8% of the above cases, physical abuse was alleged or proven.

The sad truth is that almost five children die daily due to child abuse. More than 75% of them are younger than 4 years of age.

In many cases, one of the parents is also abused and subjugated to the will and pressure of the other. It is surprisingly hard to stop the abuse cycle, even though it is not what anyone wants to be a victim of.
Continue reading

Published on:

When a person is injured while on their jobs, the case is generally handled under the Worker’s Compensation Laws of the State of New York. However, under these laws, if the person is determined to have suffered from a grave brain injury, then the person is given leave to file a lawsuit against their employer, or in some cases, the property owner. In the case of people who work in the construction trade, it is important that they are given leave to pursue other avenues if they suffer from a personal injury that is severe while they are working on a job. One such incident involved a contractor who was working on a high ladder at the Park Terrace Gardens, Inc., in 2004.

He fell from the ladder and suffered from a brain injury. He contends that his brain injury was grave and so severe that he is unable to work. He filed a lawsuit against his employer and the property owner for monetary damages to help him maintain his home and family. The property owner countered his claim by stating that they did not believe that the man’s injury is grave as defined by the Worker’s Compensation laws of New York. In order to be considered a grave injury, the injury must be pervasive enough that it interferes with his ability to function on a daily basis. It must also be considered a permanent injury. The property owner contends that the injury is not permanent in nature and that there is a chance that the man will recover.

The man’s employer filed a motion to grant him summary judgment denying the claims of the property owner that they should have common-law indemnification. The court agreed and reversed the previous decision. The property owner also filed a motion for summary judgment releasing him from any liability in the lawsuit because of contractual indemnification. The property owner claims that the subcontractor who was the employer of the injured worker, had signed a contract with the property owner when he started the work on the property. He claimed that in that contract was specific wording that released him from any liability associated to any injuries incurred by any of the subcontractor’s workers. The court reviewed the copy of the contract that was provided by the property owner and agreed that the wording was specific to remove the liability from the property owner. Further, the employer moved that the evidence produced at trial by the owners of the property, demonstrated that the injured worker’s injury was not permanent. The evidence demonstrated that the brain injury was treatable and did not prevent him from conducting his daily activities. They also contend that the brain injury does not prevent this employee from becoming employed again in the future.

The property owner also contends that the employer did not disclose to them that they had separate insurance. They contend that they should be removed from the lawsuit based on the fact that the employer intentionally withheld that information from them. The court does not agree on that contention. In fact, the court stated that there was not enough evidence to decide if the employee is going to be unable to work for the rest of his life. They contend that it is important for that question to be addressed at trial. They also reversed the dismissal of the owner’s claim that the brain injury was not grave according to the wording of the Worker’s Compensation Law § 11. The court maintains that the issue of the gravity of the worker’s brain injury is one that will need to be reviewed at trial with more information.
Continue reading

Published on:

When a baby suffers from a brain injury at birth, it is a devastating event for the entire family. The family is stricken with the knowledge that the happy healthy baby that they were expecting has received a birth injury that will render that child disabled for the rest of their lives. In cases of this nature where medical malpractice is involved, it is especially devastating for the parents. Many problems can affect the medical malpractice lawsuit in these cases. There are generally more than one doctor present at deliveries in hospitals these days. When there is more than one doctor, it can be difficult to determine which doctor deviated from acceptable medical practice of the day.

One case that involved a child who was delivered by an obstetrician in New York City, left this question unanswered. One of the doctors who attended the birth admits that he was negligent, but claims that the obstetrician who was responsible for the delivery of the child was responsible for the larger portion of blame. He contends that he was not involved in the actual delivery or prenatal care of the mother. He contends that the vast majority of brain damage occurred during that time of the delivery and not after the delivery when he became involved in the case. The doctor stated that he was responsible for caring for the newborn infant when the baby born. He stated that the primary injury to the child occurred when the obstetrician who delivered the child failed to administer oxygen to the mother when the child compressed the umbilical cord during labor. The obstetrician failed to notice that the child was not getting enough blood or oxygen through the umbilical cord until the child had been hypoxic for some time.

Following the delivery of the baby, the obstetrician handed the infant off to the Long Island pediatrician who was standing by. He contends that he was negligent because when he observed the child’s blood tests, he noticed that there was a very high bilirubin count. A high bilirubin count is indicative that the child has had a traumatic birth and that the baby may have suffered from a brain injury. He states that he was also negligent in that the child also had a high hematocrit level which would also tend to indicate that the baby had suffered brain damage during birth. If he had acted immediately with appropriate oxygen therapy, there is a chance that the child would not have suffered as severe a brain injury as he did. However, the pediatrician failed to act and some undetermined time after the child was born, it was discovered that the infant was severely brain damaged.

The parents of the child filed a personal injury lawsuit to recover damages from the medical malpractice that existed in that delivery room. The parents won the lawsuit and were awarded over two million dollars in damages. The pediatrician filed a motion that would prevent the family from recovering more than $450,000 from him personally as a result of the injury to the baby. He contends that he was not the person who caused the greatest amount of damage to the baby and that he should not have to share equally with the cost of damages that the obstetrician caused. The court evaluated the decision of the trial court and determined that the jury was not wrong in awarding damages to the parents and that the sum that was awarded was not extreme. They also contend that the testimony that was given at trial did not provide any type of identifiable manner in which the percentage of guilt could be divided between the two doctors. For that reason, the appeals court determined that the prior order of the court was accurate and that the responsibility would be shared equally between the two doctors.
Continue reading

Published on:

When an accident occurs that involves a personal injury, it is important that the injured person seeks help immediately. The laws of New York are truncated when it comes to personal injury. They have set limits on many of the areas that involve compensable injury. If a person does not file their claim within a certain period of time, they will be barred from recovering damages at all. By the same token, the person must prove that their injury is serious under the guidelines of the law. The law defines the guidelines that describe an injury as either serious or substantial. It also provides guidelines that establish what permanent loss of use relates to. For a person to recover damages based on these statutes, they must be able to establish that their injury falls into these categories.

A substantial injury is one that demands a change in the person’s lifestyle. A person who has suffered from a substantial or serious injury will have to stop doing many of the activities that they used to be able to do. If a person is able to continue performing their jobs, or handling their home lives in much the same manner that they were conducting themselves prior to the injury, then they have not sustained a serious injury in accordance with the laws of the state of New York. Generally, when a person makes a claim for personal injury as the result of an accident, they must bring forth expert testimony that will support their claim. A claim of serious injury that is not supported by medical evidence will fail. In fact, a claim of serious injury that is supported only by medical expert opinion and not supported by concrete medical tests will likely fail as well. When a person files a claim of this sort, it is critical that they are sure that they can present this type of medical evidence in court.

Sometimes, even having several doctors willing to testify in your behalf can be challenged. In one case from New York, a limousine driver was involved in an accident that resulted in his sustaining multiple injuries that he claimed were serious under the statute. In fact, some of his claims involved the fact that he was deprived the use of some body parts. He also claimed a serious spine injury and brain injury. He had no less than four medical experts testify on his behalf that he was unable to work or perform daily functions that he had once enjoyed based upon the injury that he had sustained.

The Staten Island defendants in the suit, claimed that he had failed to present a sufficient case to show that he had sustained a serious injury by way of the legal definition of the injury. They brought forth their own doctors who testified that the man’s injuries were treatable. That would mean that the injuries were not considered permanent under the law and would prohibit the man from succeeding with his claim. They filed a motion in Queens with the court to enable them to obtain a summary judgment that would state that the man’s claims were not proved.

A summary judgment is a court action that provides a determination of liability to one party over another without going to trial. The action of a summary judgment is severe and most courts refrain from granting summary judgment in all but the most solid cases. Summary judgment precludes a trial and can limit the recourse that an individual has. In this case, the court denied the insurance company’s motion for summary judgment based on the evidence that the injured man provided. He had definitive test results from his doctors.
Continue reading

Published on:

A personal injury action arises out of a motor vehicle accident that occurred at the intersection of Oceanside Road and Erwin Place in Oceanside, New York. Among other injuries, the woman suffered a traumatic brain injury.

On June 30, 2010, the Court denied the opponents’ motions for summary judgment to dismiss the woman’s complaint. The Nassau Court determined that, as the woman had yet to testify at her sworn examination before trial, the accused men’s motion for summary judgment must be denied as premature. The Court also determined that because both accused men have failed to demonstrate that the Town of Hempstead Building Zone Ordinances do not apply to them, the motion and cross motion must be denied. Finally, the Court also held that, because the driver’s operation of his motor vehicle while under the influence of alcohol arguably may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the accused men’s motions for summary judgment to dismiss the woman’s action based in negligence must be denied.

The core of the woman’s allegations against the accused men relates to certain bushes located between the residences, which bushes are alleged to block the view of traffic. The woman alleges that the overgrown nature of the bushes, which she claim are in contravention of height requirements provided in local ordinances, contributed in some measure to the occurrence of the serious traffic accident.

In an attempt to reverse the Court’s determination, the accused men both separately move for leave to renew the Court’s Decision and Order. Both accused state that their respective motions are made pursuant to the Civil Practice Law and Rules, which provides for a combined motion for leave to reargue and leave to renew.

The Civil Practice Law provides that a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made.

In considering such a motion made pursuant to the Civil Practice Law and Rules, a Court must measure each branch of the motion according to the requirements which govern motions for re-argument and renewal, respectively.

In the instant case, one of the accused make it plain in his motion and reply papers that his motion is one for renewal, not re-argument. Specifically, in the reply it is stated that, despite the woman’s assertion that the accused men’s motion is a combined motion to renew and reargue, the accused men’s motion was in fact made as motion to renew. Yet, the accused men include in his motion and reply papers various arguments previously submitted to the Court, without identifying which matters of fact or law the Court allegedly overlooked or misapprehended.

The other man from Suffolk is intimate that his motion is both a renewal and a re-argument motion, although the labeling of his own motion is inconsistent within the affirmation of counsel. Finally, in his reply, the accused claim that the motion is a combined one for renewal and re-argument.

In any event, the Court will consider each such motion separately, as required by statute. Firstly, with respect to the first man’s renewal motion, the Court notes that the accused have not presented any new facts for the Court’s consideration, nor have they demonstrated that there has been a change in the law that would change the Court’s prior determination. Thus, the accused man’s motion to renew is denied, but the Court will consider his motion as one seeking leave to reargue.

The other accused man’s renewal motion is likewise denied. Although the accused have submitted the woman’s deposition testimony, which he did not possess when he filed the original summary judgment motion, the woman’s testimony does not change the prior determination of the Court. The woman’s testimony consists of a total of six (6) pages wherein she testified that she remembers nothing about the accident. She did not testify about the general appearance of the roadways involved, nor did she offer testimony about the bushes in question. Despite the fact that her testimony is wholly and plainly of no moment regarding the men’s liability related to the bushes, the accused men both submitted such testimony in support of their motion.

Although both men’s motions are not specifically and properly identified, the Court will afford a broader view of their respective motions and treat those motions as motions for re-argument as well.

At his oral examination before trial, one of the men testified that he had consumed alcohol on the day of the accident. He testified that ultimately he pled guilty to driving while under the influence of alcohol and that he was sentenced upon that conviction. He stated at his deposition that he was also prosecuted and pled guilty to vehicular assault in the 2nd degree, a class E felony. He admitted that he was operating a motor vehicle while having 0.09 of 1% per centum or more of alcohol in his blood. His license was subsequently revoked.

The man also testified that at the time of the accident which resulted to the woman’s injury, he was operating his motor vehicle heading northbound on Oceanside Road. The complainant woman was operating her vehicle westbound and was attempting to make a left hand turn onto Oceanside Road when the impact occurred. The woman’s travel was governed by a stop sign on Erwin Place. The facts established that, at the intersection, Oceanside Road is slightly curved so that a vehicle traveling north on Oceanside Road, such as the accused man’s vehicle, would be driving on a bend as he approached the subject T-intersection. In fact, the man testified at his deposition that a person traveling on Oceanside Road did not have clear view of the intersection as a result of the curvature of the road, the telephone pole, the speed limit sign and also the hedgerow on the accused man’s properties.

It was also established on the underlying motions that the other man is the owner of the premises, which sits on the south-east corner of said T-intersection, and the front of which faces Erwin Place. The accused is the owner as tenants in common of the premises, which home is adjacent to the other accused man’s home, and the front of which faces Oceanside Road. It was legitimate entitlement to summary judgment as a matter of law.

The testimony of the non-party witnesses establishes that the bushes in question may have contributed to the occurrence of the accident underlying the action, thus raising triable issues of fact with respect to the personal injury liability of both the accused. Neither of the accused men submitted the non-party witness deposition testimony to the Court. The woman submitted that deposition testimony in her opposition to the instant motions made by the accused.

The woman’s former boyfriend testified that the bushes that are blocking the view of the vehicles located on Erwin Place, thus interfering with a driver’s ability to see cars traveling northbound on Oceanside Road.

A passenger in the car traveling behind the woman described that same intersection as being obstructed by bushes that were about six feet high.

A man driving the car traveling behind the woman at the time of the accident testified that the bushes in question block the view of the oncoming traffic on Oceanside Road. He saw the truck only after it had passed the bushes. According to him, the bushes started relatively close to the intersection and ran all the way down and he couldn’t really see the street at all.
The Court turns to the accused men’s claims that the town ordinances do not apply to them, and do not place any duty on them with regard to motorists.

Specifically, the ordinances alleged by the woman to have been breached by the moving accused men relate to Fences and Fences and Planting screens. Upon their instant motions to renew, the accused have failed to proffer any new or additional facts surrounding the alleged statutory breaches. Nevertheless, even overlooking the otherwise fatal procedural infirmity, the accused have failed to demonstrate, yet again on the renewed motion, that the ordinances do not apply to them.

As the Court detailed in its prior Decision and Order, the woman’s personal injury claims against the accused relate to their alleged failure to keep the hedges on their property properly trimmed so as to permit maximum view of the T-intersection. In that regard, while it is true that generally property owners have no common-law duty to control the vegetation on their property for the benefit of public highway users, the accused have failed to show that the shrubbery at issue does not apply to them. Upon their instant motions, the accused maintain that even if the shrubbery at issue is deemed to be a planting screen within the meaning of the ordinances, the language of the ordinances to not specifically outline or intimate that the ordinance is in place to protect drivers on a highway. Relying principally upon the Second Departments’ rulings as well as the Court of Appeals’ ruling, the accused argue that in addition to the fact that there is no common law duty owed to the woman by the landowners, the public policy also supports the finding that they as private landowners cannot be held liable to the accused. The arguments are unavailing.

It is true that there is no common law duty imposed upon owners or occupiers of land to control vegetation on their property for the benefit of users of a public highway. The absence of a common law duty on the abutting owner, however, does not end the inquiry into the abutting owner’s potential liability. There exists an exception to the common law rule when, as in this case, an ordinance or a specific regulatory provision places an affirmative duty on the abutting owner to maintain and keep the area free of obstructions. It is undisputed that the Town of Hempstead Building Zone Ordinance, impose upon the property owners a duty to prevent vegetation from visually obstructing the roadway. Thus, in the absence of any demonstration by the accused that they complied with said ordinances, proof of noncompliance with the regulatory provisions may give rise to tort liability for any damages proximately caused thereby.
Continue reading

Published on:

A Manhattan contractor who owned a home improvement company obtained a contract to renovate a couple’s home. The man worked on the couple’s home: he was up on the roof supervising the repair of the roof when he slipped and fell. He hit his head and sustained a brain injury.

He filed a personal injury complaint against Workmen’s Compensation, against his own company and against the couple who owned the house he was renovating. In that personal injury case, trial was held to determine if the brain injury sustained by the contractor qualifies as a grave injury under the Workmen’s Compensation Law.

During the trial, the contractor adduced proof regarding the extent and nature of his brain injury. His medical experts testified that the contractor had cognitive dysfunction which permanently disabled him from doing any work. The insurance company provided its own expert who conducted a neuropsychological evaluation of the contractor. The expert of the insurance company found that the contractor’s brain injury was severe and traumatic such that he has lost the ability to make decisions required in daily life.

The contractor’s home improvement company was insured for Workmen’s Compensation by an insurance company. During the trial to determine the extent of the grave injury sustained by the contractor, the insurance company sent its lawyer who fully and knowingly participated in the trial even though it was not a party to the said personal injury action. The Queens insurance company was allowed to propound questions to the witnesses presented during the trial. At the end of the trial, the court declared that the contractor suffered a grave brain injury. The contractor was then given an award of damages amounting to about $6,500,000.00 which the couple and the home improvement company immediately paid and settled. The home improvement company and the owners of the house then seek reimbursement or contribution from the insurer of the home improvement company
The insurance company then filed a case where it seeks a judicial declaration that it is not bound by the findings during the personal injury proceedings that the contractor sustained a grave injury. The only question before the Court is whether or not the insurance company is not bound by the findings in the personal injury action that the contractor sustained a grave injury.

The Court held that in order for the insurance company to be held as bound by the findings in the personal injury case, there must be proof that it was a party to the personal injury case or at least privy with any of the parties in that case; the interests of the insurance company were represented during the trial; and the insurance company had a fair opportunity to fully participate in litigating the issue of the nature and extent of the contractor’s brain injury.

The extent and nature of the contractor’s brain injury were fully litigated in the personal injury action. Because the insurance company provided its own expert to examine the contractor, the insurance company is deemed to have been given a fair and full opportunity to be privy to the litigation. Because the insurance company was allowed to propound questions to the witnesses, it is inevitable to conclude that it was given the opportunity to litigate the issue.
For these reasons, the insurance company can no longer be allowed to re-litigate the issue of whether or not the contractor sustained a grave injury. This action for judicial declaration must be dismissed. The insurance company is estopped or barred from re-litigating this issue again.
Continue reading

Contact Information