Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Personal Injury

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In Patricia Ross v. Brookdale University Hospital and Medical Center, Decided August 12th, 2008, The Second Department held that where The Court vacated the plaintiff’s note of issue but did not dismiss the case the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have the matter restored to the trial calendar. The Court reasoned as follows;

“Contrary to the defendant’s contention, the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have this matter restored to the trial calendar. Although the Supreme Court purportedly vacated the note of issue pursuant to 22 NYCRR 202.21(e), vacatur under that court rule is warranted only with respect to actions which are not ready for trial or where “it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of [that] section in some material respect” (id.). Here, the note of issue was vacated solely by virtue of the fact that the “[p]laintiff’s attorney fail[ed] to appear 2 times” at the call of the trial calendar. Accordingly, the plaintiff, in moving to restore the action to the trial calendar, was under no obligation to submit an affidavit of merit or to show “the reasons for the acts or omissions which led to the note of issue being vacated,” since such submissions are required only in connection with “[m]otions to reinstate notes of issue vacated pursuant to” § 202 of the Uniform Rules for Trial Courts (22 NYCRR 202.21[f]). Further, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see Kohn v Citigroup, Inc., [*2]29 AD3d 530, 532; Brannigan v Board of Educ. of Levittown Union Free School Dist., 307 AD2d 945; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, it was not dismissed, but rather designated as “inactive.” Since the matter was not dismissed due to the plaintiff’s failure to appear at a compliance conference (see 22 NYCRR 202.27; Dergousova v Long, 37 AD3d 645), or for any other reason, there was no requirement that the plaintiff submit an affidavit of merit or an explanation as to why the case was removed from active status. Hence, the Supreme Court did not err in restoring the action to active status (id.; cf. Lopez v Imperial Delivery Serv., 282 AD2d 190), regardless of the sufficiency of the plaintiff’s affidavit of merit or explanation as to why the matter was marked inactive.”

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In Tirado V. Elrac Inc., U-Haul Co., Inc. decided August 5, 2008, The First Department reversed the order of the Supreme Court granting U-Haul’s motion for summary judgment and granted plaintiffs cross motion to amend his Complaint and held the amendment related back to the original date of filing of the initial complaint thus avoiding application of The Graves Amendment. The facts were as follows;

” Plaintiff alleges that on November 9, 2004, while a passenger in a car driven by defendant Litzey and owned by defendant Elrac, he sustained injuries when their vehicle was struck by a truck owned by U-Haul Co., Inc. (UHI) and operated by defendant McFarlan. The truck in question bore Arizona registration number AB24019 and was apparently owned by U-Haul Co. of Arizona (UHAZ). ”

“On July 29, 2005, plaintiff filed a verified complaint, naming Elrac, Litzey and McFarlan as defendants. Believing that the rental truck was owned by UHI, plaintiff sued that entity, claiming vicarious liability for the negligent use or operation of the vehicle. UHI was served on August 26, 2005, by service on the New York Secretary of State, and an additional copy was mailed to UHI at 2727 N. Central Ave., Phoenix, Arizona. On October 7, 2005, U-Haul Co. of New York (UHNY) filed an answer in lieu of UHI, presuming it was the intended defendant.”

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From The New York Law Journal, Thursday, July 31, 2008;

Our partner, Ben Rubinowitz, and Evan Torgan, a member of Torgan & Cooper,” write that too often, trial lawyers use demonstrative exhibits only in the one part of the trial during which the exhibit is offered – usually direct examination. Although a strong point can be made during direct, with a good amount of planning and a little bit of creativity, that exhibit can serve to bolster your point throughout the entire trial and, more importantly, serve as your surrogate during the one part of the trial when you are not present – jury deliberations.”

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In product liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the machine properly or to follow warnings which caused the plaintiff’s injury. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer is crucial. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a machine. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Machine design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

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In D’Amato v. Yap, et al., Decided July 8th 2008, The 2d. Department held that while plaintiffs were not entitled to Summary Judgment on liability they were entitled to a unified trial on liability and damages. The facts set forth in The Court’s opinion were as follows;

“The seven-year-old infant plaintiff, Nicholas D’Amato (hereinafter Nicholas), tripped and fell while playing with friends in the basement of the home of the defendants Medardo N. Yap and Gloria Yap, just after his friend, the defendant James Yap, shut off the light to the basement. When Mrs. Yap arrived home, one of James’s friends told her that Nicholas had fallen in the basement on some tools and hurt his eye, and showed her the spot where he had fallen. When Nicholas went home, he told his mother that he poked himself in the eye with his finger when his hand slipped on a doorknob.

The next morning, his eye was swollen shut. After seeing his pediatrician, Nicholas and his mother went to an eye specialist who sent them to the New York Eye and Ear Hospital, where they learned that his right eye had a ruptured globe and lacerated cornea. When the doctors who treated Nicholas rejected the explanation that he poked himself in the eye as inconsistent with the severity of his injuries, he told them that he tripped in James’s house and fell onto a tool which stuck him in the eye.”

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In Guzman v 4030 Bronx Blvd. Assoc. L.L.C., Appellate Division, First Department, Decided on June 19, 2008 The Court held;

“While plaintiffs’ expert is qualified to render an opinion on the extent of plaintiff Tyrone Guzman’s neurological deficits and may testify that those deficits are consistent with a history of head trauma, plaintiffs have failed to identify any evidentiary basis for the opinion sought to be elicited from the expert as to which of several accidents is the proximate cause of such deficits. Thus, his testimony as to this isolated point was properly precluded. However, we conclude that the trial court erred in dismissing this action without affording plaintiffs the opportunity to retain another expert witness to establish the nature of Tyrone Guzman’s physical injury and its cause, and we remand this matter for further proceedings.”

The lower Court had precluded the plaintiff’s neuropsychologist from testifying as to causation regarding the infant plaintiff’s head injury and dismissed the plaintiff’s case. In reversing the Court held that plaintiff’s should have been granted “……a continuance pursuant to CPLR 4402 to enable them to retain a medical expert to testify concerning causation.”

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Uninsured Motorist Coverage/Supplemental Underinsured Motorist Coverage

A. When and How It Applies:

1. Uninsured Motorist Coverage (UM) – Insurance Law Section 3420(f)(1) – is mandatory in New York State which makes certain that the minimum bodily insurance coverage mandated by law is available to those involved in an accident with an uninsured vehicle.

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From amnewyork By David Freedlander;

Twenty of the city’s high-rise crane returned to operation last week, but many of them are on construction sites that have received dozens of complaints and violations for unsafe working conditions.

The complaints range from the mundane to the alarming, but in the light of two deadly crane collapses this spring, both of which occurred on construction sites with a history of violations, some say any infraction raises red flags.

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Our Senior Partner Robert Conason and our Partner Rhonda Kay are contributing authors of Warren’s Negligence in the New York Courts, Second Edition.

Warren’s Negligence in the New York Courts has been a trusted authority for negligence attorneys practicing in New York for more than 60 years. It is one of the most thorough New York-specific treatises covering the key legal aspects of New York negligence law and important procedural matters for both plaintiff and defense attorneys.

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By: Anthony H. Gair and Howard S. Hershenhorn Gair Gair Conason Steigman&Mackauf

I. THE STARTING POINT

In order to maximize the eventual recovery on behalf of a plaintiff, a solid foundation supporting the damages claimed must be built. The construction of this foundation begins at the first interview with the plaintiff.

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