New York Legal Blog

November 2007 has been a treacherous month on the Bronx River Parkway in New York. On November 13, 2007, we did a report "Fatal Accident on the Bronx River Parkway..." describing the New York fatal car crash in which a Yonkers couple, Bernard and Phyllis Cecere, was killed when their vehicle was struck by an apparently speeding car driven by 19 year old Justin Martinez near Oak Street in Yonkers.

On November 26, 2007, an Orange County man was killed and a Peekskill woman seriously injured in a nearly head on collision on the Bronx River Parkway just north of the Virginia Road exit. On a curvy section of the roadway heading southbound, Dawn Young was driving a 2004 Jeep Liberty when she apparently crossed the double yellow line, colliding with a 2005 Mazda being driven by Gerald Wolfe, who died from his injuries at Westchester Medical Center. Ms. Young's injuries are not considered life threatening. This was second fatal accident in the exact same location of the Parkway; back in October of 1999, three people were killed when a carjacking suspect at the wheel of a stolen Cadillac veered onto the southbound side of the Parkway near Virginia Road and struck the vehicle of a Chappaqua couple on their way home from church. Ironically, after several years of delay due to federal government regulations requiring the installation of storm water basins, construction work was scheduled to begin the same day of the most recent fatal car crash to install center barriers from Cemetery Road at exit 23 to Lafayette Avenue at Exit 27. However, work was delayed due to the inclement weather conditions.

The Westchester County Police have indicated that it is too early to determine if alcohol, drugs, the poor weather conditions, or slippery roads were factors in the fatal car accident.

Continue reading "Another Fatal Accident on the New York Bronx River Parkway" »

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Posted In: Car Accidents in New York

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A subpoena is a command for the person receiving this document to appear in Court or at a deposition, either to give testimony or to bring documents. A failure to comply with the subpoena can result in a financial penalty to the person subpoenaed, or in extremely rare instances, to a short jail stint for contempt. A subpoena "duces tecum" is a Latin term meaning that the recipient must bring documents to Court, or to a deposition in a lawyer's office. A personal subpoena is a command to appear in Court or a deposition to give sworn testimony. In New York, a frequent use of a subpoena is to command the "non-party deposition" of a witness to an accident.

Our office recently used a non-party subpoena in a Brooklyn slip and fall case, to obtain the testimony of a passerby who observed our client fall, and also noted that landlord had failed to apply salt or sand to the patch of ice where the accident occurred. If a witness is reluctant to become involved in a case, there is often no other alternative to ensure that this person appears in Court other than a subpoena. Years ago, we were involved in a Bronx construction accident in which our client had fallen from a ladder and suffered very serious injuries. A co-worker was aware that he ladder was in very poor condition, but refused to appear in Court voluntarily. Therefore, in order to get this vital testimony before a jury, we were forced to subpoena this witness to Court.

As for the subpoena duces tecum, this is often used to compel medical providers such as hospitals, physicians, physical therapists, or chiropractors to provide their records of treatment of plaintiffs in New York slip and fall accidents, car accident cases, New York medical malpractice cases, defective product cases, or New York trucking accidents, to name a few.

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Posted In: Glossary of Personal Injury Law Terms

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In New York personal injury cases, such as a Brooklyn slip and fall accident, Bronx motor vehicle accident, or a Westchester construction accident, probably the most important legal procedure in the case before trial is the deposition. In a deposition, also known as an Examination Before Trial (EBT), the parties to a lawsuit, or witnesses to an accident, are placed under oath and asked questions about the accident, the injuries suffered by the Plaintiff, and generally everything they observed on the date of the car accident, trip and fall accident, or fall from a scaffold or ladder, to use a few examples.

Continue reading "New York Depositions" »

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Posted In: Glossary of Personal Injury Law Terms

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New York's DWI Law setting the minimum drinking age to 21 in July of 1984, (as did many other states) according to the National Highway Traffic Safety Administration NHTSA has saved an estimated 25,000 lives. According to Glynn Birch, the national president of Mothers Against Drunk Driving, (MADD) "The earlier a youth begins drinking alcohol, the more likely they are to become alcohol dependent, binge drink, and to drive drunk later in life."

In September, 2007, MADD, The American Medical Association, (AMA), The National Transportation Safety Board (NTSB), and the Insurance Institute for Highway Safety (IIHS) announced the formation of Support 21, a coalition of health and safety groups in support of the 21 Minimum Legal Drinking Age Law.

Continue reading "New York's "21" DWI Law Continues To Save Lives" »

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Posted In: DWI/DWAI in New York

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Negligence is a very common term in New York law, but clients are frequently unsure what this term means. Negligence means a lack of reasonable care which one person owes to another person. It is failing to foresee or anticipate that the wrongdoer's risky conduct will cause injury to another. Negligence is not intentional or willful conduct, which also creates liability and can lead to legal responsibility for injuries caused. In order to recover personal injury damages in New York however, not only must negligence be proven, but it must also be proven that this negligence was the legal cause of injury or damages to another person.

Specific examples of New York negligence include: A driver causing a Brooklyn car accident by going through a traffic light; a landlord causing a Bronx slip and fall accident on an icy staircase by failing to apply sand, salt or otherwise remove the ice despite his knowledge of the condition; an owner of a dog allowing a Westchester dog bite when the dog had bitten a child one week earlier.

Negligence is not intentional or willful conduct, which also creates liability and can lead to legal responsibility for injuries caused. Examples of intentional conduct would be an assault at a bar, or libel, in which the wrongdoer intends to cause the injury, rather than accidentally causing the injury.

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Posted In: Glossary of Personal Injury Law Terms

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Faced with vigorous opposition by Republicans and Democrats alike, New York Governor Eliot Spitzer has abandoned his plan to provide driver's licenses to undocumented immigrants a scant two months after his initial proposal. Governor Spitzer's original idea was to abandon New York's policy of requiring a social security number as a component of obtaining a driver's license, in order to encourage illegal immigrants to become better trained drivers and obtain car insurance to protect the public.

The irony is that even immigrant rights advocates opposed the more recent version of the driver's license plan, which would have created three different types of licenses, with immigrants entitled only to a license which could not be used for i.d purposes. They argued that illegal immigrants would "never come out of the shadows" to obtain the lesser form of driver's license, and that authorities would take advantage of the new policy by reporting the presence of the undocumented immigrants to the Department of Homeland Security.

Continue reading "New York Governor Spitzer Abandons Driver's License Plan" »

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Posted In: Immigration A to Z

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The Statute Of Limitations In New York is a legal term which means the time in which a lawsuit must be started to be legally sufficient. In New York State, there are numerous statutes of limitations for various different types of cases. For example, in New York motor vehicle accident cases, the statute of limitations is three years from the date of the accident. This means that even if the case is filed one day past the three year anniversary of the motor vehicle accident in New York, the case is legally defective and will be dismissed.

In New York medical malpractice cases, there is more than one type of statute of limitation, but a classic example of a doctor performing surgery on the wrong body part would have a statute of limitation of two and one half years from the date of the last treatment with that doctor.

Continue reading "New York Statute Of Limitations Overview" »

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Posted In: Glossary of Personal Injury Law Terms

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Britney Spears latest run in with the law in which she went through a red light and made an illegal left turn with her children in the car highlights two significant safety issues, one of which we wrote about in our April 8, 2007 blog. Namely, New York mothers driving while intoxicated with their children in the car. A video taken by TMZ.com videographers shows Ms. Spears going through a red light at a well known dangerous intersection in Los Angeles with her two young sons sleeping in the back and her court-appointed monitor in the front. Although on this occasion, Ms. Spears has not been charged with intoxication as part of her traffic offenses, her troubles with drugs, alcohol and vehicles are well documented.

The other issue is New York drivers disregarding traffic signals and routinely going through stop signs and red lights. More and more in this age of people in a hurry to get to their next destination, drivers treat traffic signals like inconvenient nuisances rather than part of the New York Vehicle & Traffic Law. For example, our office in White Plains is one block east of the intersection of Mamaroneck Avenue and Post Road. This intersection has a huge no left turn sign above the traffic lights, which drivers seemingly disregard at will, despite the fact that the intersection has been the site of multiple accidents over the years, and the frequent police presence from the City of White Plains Police Department.

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Posted In: Car Accidents in New York

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New York undercover sting operations are in full force over the last month. First, an undercover action precipitated by an advertisement in Craigslist brought the arrest on New York prostitution charges of several men who responded to this advertisement in Rye, New York. Westchester. More recently, in early November, a sting at a rest stop off of New York Interstate 684 in Bedford, New York resulted in the arrests of over 20 men, including a priest who is charged with attempting to engage in sex with an undercover officer.

Most recently, on November 8th and 9th, the Mount Vernon Patrol Task Force conducted an undercover sting operation that led to the arrests of 23 men on misdemeanor charges of patronizing a prostitute. In the Mount Vernon sting, near the Bronx border, undercover officers acted as decoys for suspects who approached the officers and allegedly offered to engage in sexual acts for money.

Continue reading "New York Prostitution Stings On The Rise" »

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Posted In: New York Criminal Law Update

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In New York State Courts, the Plaintiff, or the person that is suing for money damages, has the burden of proof, meaning that the New York plaintiff must present evidence establishing that he or she is entitled to recover compensation from the defendant. Conversely, the defendant has no legal obligation to prove or disprove anything. The burden of proof in a New York civil case, which is a lawsuit for monetary damages, such as in a motor vehicle accident, or trip and fall accident, or in a case of medical malpractice, or injuries from an animal bite, to use some examples, is "a preponderance of the evidence." A preponderance of evidence is defined as evidence establishing that it is slightly more likely than not that the defendant is legally responsible for the plaintiff's injuries.

Continue reading "Burden of Proof in New York Personal Injury Cases" »

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Posted In: Glossary of Personal Injury Law Terms

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The fatal car crash on New York's Bronx River Parkway this past Wednesday has Westchester residents calling for stricter traffic enforcement. An elderly Yonkers couple, Ralph and Phyllis Cecere, were killed in the horrific car accident car crash when a Honda driven by 18 year old Justin Martinez collided with their Cadillac, which then burst into flames. According to the Journal News, a witness observed Martinez weaving in and out of traffic, driving on the shoulder of the roadway, and driving at an excessive rate of speed.

In response to numerous calls by Westchester County residents for increased traffic enforcement, the Westchester County Police Department has outlined the steps they are taking to curb aggressive driving, reckless driving, and reduce auto accidents. These steps include the following: aggressive driving details, in "low profile", unmarked vehicles; spot speed enforcement checks; radar screens to inform drivers of their speed; and the placement of unmanned patrol cars, called "drones", to cause drivers to slow down in the belief that the cars do have officers inside them.

Continue reading "Fatal Accident On New York Bronx River Parkway Results In Calls for Stricter Traffic Enforcement" »

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Posted In: Car Accidents in New York

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New York Governor Eliot Spitzer has unveiled a plan for a multi-tiered driver's license which has support from the federal government yet is facing much opposition in New York, including by many representing undocumented immigrants. The plan calls for three types of licenses:

1. An enhanced driver's license which will be as secure as a passport--this is intended for people who will soon need to meet ID requirements even for the short drive to Canada;

2. A second version which will meet federal standards under the Real ID Act, which is designed to make it harder for illegal immigrants to get licenses;

3. A third type of driver's license which will be available to undocumented immigrants, in order to "bring those people out of the shadows" and ensure that the immigrants get driver's training and obtain automobile insurance in New York.

Under the new administrative order of New York Governor Spitzer, New York would be the fourth state after Arizona, Vermont and Washington to agree on federally approved secure licenses. However, Governor Spitzer continues to face staunch opposition to his plan in the Republican controlled New York State Senate, which wants to ensure that "illegal immigrants will not get any version of a license." The Senate is holding firm to the present New York State requirement that in order to obtain New York driver's licenses, immigrants must first be in possession of a social security number.

Continue reading "Governor Spitzer's Plan For NY Driver's Licenses" »

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Posted In: Immigration A to Z

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On October 25, 2007, the United States Senate rejected the Dream Act (Development, Relief and Education of Minors Act) by a vote of 52-44. The Dream Act would have allowed illegal immigrants who plan to attend college or join the military, and who arrived in the United States with their families before they turned 16, to become legal residents and ultimately citizens. In order to make the legislation veto proof, supporters of the Dream Act fell 8 votes short of the 60 that they needed to do so. Originally, the Dream Act was part of a broad immigration plan that would have legalized as many as 12 million unlawful immigrants and fortified the border. The broader plan failed in the Senate, as major boosters such as Senator John McCain bailed out on his support of the measure when he believed it was negatively impacting his presidential campaign chances.

Continue reading "Dream Act Fails Test Vote In the U.S. Senate" »

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Posted In: Immigration A to Z

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In New York, in order to win a case when you are injured in a slip/trip and fall accident, the most important factor is proving "Notice." Notice is the legal term which means knowledge by the defendant supermarket, shopping mall, department store, other place of business, or municipality, that a particular dangerous condition existed for a period of time, and the failure of that business owner or municipality to repair that condition despite their prior knowledge.

There are two basic types of Notice which can be proven in a dangerous premises case in New York. The first is "Actual Notice." Actual Notice is defined as knowledge which was provided to the defendant by informing them before the accident by way of a writing or conversation, that the dangerous condition existed and needed to be repaired. For example, in a Bronx trip and fall accident, before a case can be brought against the Bronx municipality, you must prove that they were warned of the broken section of the sidewalk and failed to make repairs. This is the reason that fall down accidents are so difficult to prove against municipalities--What are the chances that someone actually wrote a letter to a municipality before your accident informing the municipality that the sidewalk was cracked or not level? One advantage that we have in prosecuting cases against the 5 boroughs of the Bronx, Brooklyn, Queens, Manhattan, and Staten Island, is the Big Apple Pothole Corporation. Essentially, what Big Apple does is chart every sidewalk in the city for defects, and then send maps to the City of New York of these specific defects, which can then be used in court to legally prove notice. Unfortunately, Big Apple's reach does not extend past the five boroughs into the suburbs or rural New York to protect the victims of municipal negligence there.

Continue reading "New York Premises Cases--"Notice" Is The Critical Factor" »

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Posted In: Glossary of Personal Injury Law Terms

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When clients come to our office after having suffered injuries in a New York car accident, often their car has been totaled by the insurance company, and no photographs were taken of the damage to their vehicle. This presents two major obstacles to a successful resolution of the case. First, when attempting to resolve the claim with the insurance company, New York insurance adjusters rely heavily on visual proof of the damage to the car to determine the severity of an automobile accident. Thus, taking photographs of your car with a cell phone (not optimal but if that's all you have, use it!), digital camera or plain old Polaroid are absolutely essential to a quick and proper settlement of your case.

Further, if the case is going to trial due to an insufficient offer or no offer at all from the insurance company, those photos showing the smashed in hood or crushed fender go a long way in convincing a New York jury that your injuries were caused by this car accident, and not a degenerative spine or a fender bender twenty years ago.

Continue reading "In New York Courts, Photographs Do Tell A Thousand Words" »

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Posted In: Successful Injury Case Strategies

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As an update to our October 19, 2007 report, a second review of Playland Amusement Park in Rye, New York is not nearly as favorable as the initial report. H. Harold Hudson, a consultant retained by Westchester County Executive Andrew Spano, has determined that although ride operators performed their duties in an "efficient and proficient manner", there are noticeable improvements that are needed to improve safety at the New York landmark. Clearly, in the wake of the third fatal accident at Playland since 2004, there was a general concern that Playland had become dangerous premises in New York.

Mr. Hudson noted the following:

1. On many of the larger rides, there were too many ride operators, creating an atmosphere in which operators were socializing with their co-employees more than focusing on their ride responsibilities;

2. At shift time, confusion and uncertainty "crept in", leaving "large gaps in ride operator's attention to their ride duties";

3. Security officers were observed spending large amounts of time socializing rather than paying attention to what was going on around them;

4. Operators were observed jumping on and off the carousel platform while the ride was operating at full speed.

This latter observation is of particular concern in light of the tragic death of park employee Gabriela Garin back in June of 2007, who was killed on the "Mind Scrambler" while allegedly not seat belted, and purportedly standing up while the ride was at full speed. In addition, as Ms. Garin was on duty at the time, park rules forbade Ms. Garin from being on the ride at the time of the fatal accident. There is also an open issue as to why the other ride operator started the ride knowing that Ms. Garin was not supposed to be on the ride and was not buckled into her seat.

Continue reading "Second Review of New York's Playland Amusement Park Is Not As Favorable As Initial Report" »

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Posted In: Dangerous Premises Accidents in New York

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