Articles Posted in Car Accidents in New York

New York’s “no-fault law,” found in § 5104 of the New York Insurance Law, limits a plaintiff’s ability to recover non-economic damages in an auto accident claim. “Non-economic damages” are often the greatest losses in car accidents and other injury cases. They go beyond direct expenses like medical costs and lost wages. They include an accident victim’s pain and suffering, emotional anguish, and other harms that often occur because of a serious accident. The no-fault law only allows recovery of non-economic damages in cases involving “serious injury.” New York courts regularly hear disputes over whether an auto accident injury meets the statute’s definition of “serious injury.” Two recent cases from the New York Appellate Division, Second Department, Buchanan v. Keller and Broadwood v. Bedoya, demonstrate the sort of evidence needed for certain “serious injury” claims.

Section 5102(d) of the Insurance Law provides a list of injuries that constitute “serious injury” under the no-fault law. The items on the list range from the specific, such as “death” or “dismemberment,” to the more ambiguous. Two of these items are subject to ongoing dispute in the courts:
– “Permanent consequential limitation of use of a body organ or member” (PCL); and
– “Significant limitation of use of a body function or system” (SL).

A defendant moving for summary judgment on a “serious injury” claim has a prima facie burden of demonstrating that a plaintiff’s alleged injury does not meet the statutory definition. A plaintiff can counter this by establishing a “triable issue of fact.” In a 2009 decision, Staff v. Yshua, the Appellate Division, Second Department found that the defendant met this burden through expert testimony. The defendant presented an affirmation from an orthopedist who examined the plaintiff and concluded that their “injuries were now resolved and without permanency.” The court held that the plaintiff “failed to raise a triable issue of fact” in opposition to the defendant’s evidence. In a case from 2011, Jilani v. Palmer, the court found that the plaintiff had met their burden by producing an affidavit from a chiropractor that challenged the findings of the defense expert.
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Distracted driving is the cause of countless accidents in New York and across the United States. If you or someone close to you has been injured in an accident caused by distracted driving, you may be entitled to compensation for your harm. At the Law Offices of Mark A. Siesel, our New York distracted driving accident attorneys understand how to handle these claims. With years of experience, we take an aggressive approach in fighting for your legal rights at every step of the way.

The National Highway Traffic Safety Administration (NHTSA) defines distracted driving as driver inattention that can lead to an accident. In other words, a distraction takes place when drivers divert their attention from the primary task of driving to focus on some other activity. The NHTSA reports that distracted driving was the cause of 3,477 deaths and 391,000 injuries across the country in 2015. Driver inattention or distraction was listed as a factor in 19.1 percent of all crashes and 10.4 percent of all fatal crashes in New York in 2014, according to the New York State Department of Motor Vehicles. Examples of distracted driving include but are not limited to:

  • Talking or texting on your phone without a hands-free device;
  • Adjusting the stereo or GPS;
  • Turning back to comfort a child in a car seat;
  • Checking social media;
  • Fatigue or drowsiness;
  • Emotional distraction;
  • Watching a video; or
  • Putting on makeup or grooming.

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As anyone who drives on the major highways and parkways in the Westchester County area and other counties in the lower Hudson Valley such as I-684, I-287 and I-87, for example) is aware, the average driver on these highways will: follow too closely; change lanes without signaling; approach the rear of another vehicle quickly and change lanes at the last second; drive at an excessive speed; drive while distracted by texting, emailing or speaking on a cell phone, and in general drive aggressively. In an analysis conducted by the Journal News this past week, there was an examination of more than 107,000 vehicle crashes in the Lower Hudson Valley between August 1, 2011 and July 31, 2014. The majority of accidents occur on a straight section of roadway without traffic controls.

25% of crashes are due to rear end collisions. Of those types of accidents, at least half involve a sports utility vehicle. This is not surprising, in that due to the added weight of these vehicles, the stopping distance from application of the brakes to a complete stop is greater than with a lighter passenger vehicle. In these rear end collisions, 15% occurred when the driver was completely stopped, and 14% happened when the motorist was stopping or slowing down in traffic. 16% of traffic accidents in the Hudson Valley occurred at a traffic signal, 7% were at a stop sign and 5% occurred in a no-passing zone. Surprisingly, accidents involving commercial vehicles were involved in only 1 % of the collisions.

The most common accident occurred in clear and dry weather; with a youthful driver returning home from work, driving an SUV; who was driving while distracted or following too closely, and on a Friday.

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On February 11, 2015, famed CBS News and “Sixty Minutes” correspondent Bob Simon, 73, (who won 27 Emmy Awards and reported on the Vietnam War, the 1973 Yom Kippur War, and the Gulf War) was killed in a car crash on the West Side Highway near 30th Street.  Simon was riding in a Lincoln Town Car for hire at approximately 7:00 PM, when the 44 year old driver lost control of the vehicle, striking a Mercedes stopped at a red light, and then the median separating southbound traffic from northbound traffic.  Mr. Simon was seated in the rear seat, and was not wearing a seatbelt.  The vehicle was so mangled that emergency personnel were forced to use the “Jaws of Life” to extract Simon from the vehicle.

Mr. Simon never regained consciousness.  He was taken to St. Luke’s Roosevelt Hospital Center, where he was pronounced dead of blunt force trauma injuries to his head, torso and extremities.  Under the New York Vehicle & Traffic Law Section 1229 (c), rear seat adult passengers are not required to wear seat belts.  Additionally, there is an exemption for livery vehicles by which the drivers of these vehicles, and any occupants, are not required to wear seat belts.

New York is one of twenty states which do not have a law mandating rear seat belt usage for adults.  The other twenty eight states and the District of Columbia do require seat belts for rear seat passengers.  For the most part, all states do require either seat belts or car seats for children and infants.

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The family of the late James McNair, 63, good friend and mentor of “30 Rock” and Saturday Night Live” comedian Tracy Morgan, announced last month that it settled a wrongful death lawsuit filed against Wal-Mart.  Mr. McNair, along with Mr. Morgan and three other friends, were travelling home from a comedy club performance in Dover, Delaware, and were on the New Jersey Turnpike on June 7, 2014, when Morgan’s Mercedes limousine bus was struck in the rear by a Wal-Mart tractor-trailer operated by Kevin Roper.

Roper, 35, had apparently been operating the tractor-trailer for more than 24 hours straight in violation of federal D.O.T regulations.  The National Transportation Safety Board performed an investigation of the accident.  In its investigation, the NTSB determined that Roper was operating the vehicle at 65 miles per hour in the seconds before the truck struck the rear of the Morgan vehicle, suggesting that he either fell asleep or was distracted prior to the crash.  The initial impact led to a chain reaction crash with another tractor-trailer, an SUV and two other cars.

In the accident, Mc. McNair apparently died at the scene as a result of his injuries. McNair was from Peekskill, New York and was a close friend of Mr. Morgan.  Morgan sustained traumatic brain injuries, a fractured femur, several broken ribs and a broken nose. He was hospitalized in critical condition for several weeks.  Another occupant of the Mercedes, 37 year old Harris Stanton, suffered a fractured wrist in the accident.

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Last week, the U.S. Justice Department announced that Toyota will pay 1.2 billion dollars in fines to settle a four year long criminal probe commenced by the Justice Department arising out of sudden acceleration problems that caused the wrongful death of occupants of Toyota vehicles highlighted by a tragic crash in August of 2009. The acceleration issues were caused by improper floor mats which would get jammed with the accelerator, as well as defective gas pedals. Initially, Toyota made the extremely poor decision to blame many of the accidents on “driver error”, but it became apparent from a safety point of view and the public relations debacle that ensued that this was a very bad strategy, indeed.

The 1.2 billion dollar penalty is by far the largest ever paid by an automobile manufacturer to settle a criminal investigation. In addition to the huge monetary penalty, Toyota has agreed to have a monitor to oversee its safety communications, its response to accident reports and to review its processes for issuing safety bulletins. Previously, Toyota had paid much smaller fines of 16.375 million in 2010 for delay in reporting pedal and floor mat defects, and $17.35 million in 2012 in a separate safety recall.

The sudden acceleration issues came to Toyota’s attention in 2009 with numerous reports of “runaway cars.” This was highlighted by a particularly tragic accident in San Diego in August of 2009 when five people were killed as the result of an improper floor mat which trapped the accelerator in a 2009 Lexus ES. In that accident, 911 recordings caught in horrific detail the occupants’ ordeal as the vehicle accelerated to 113 mph before flying into an embankment.

Part of the federal investigation examined whether Toyota had provided false and/ or misleading statements to the National Highway Traffic Safety Administration (NHTSA) when it was investigating the sudden acceleration issues several years ago. At that time, Toyota recalled approximately 8.1 million vehicles. Toyota still faces enormous costs in defending against hundreds of personal injury lawsuits that have been consolidated in California state and federal courts, in which settlement talks are proceeding. Bloomberg reported that 131 of approximately 300 cases have been settled in principle for undisclosed sums, as is always the case in settlement with corporations, which require confidentiality agreements. Further, last year Toyota agreed to pay about 1 billion dollars to owners of Toyota vehicles who alleged that their vehicles lost value as a result of the safety recalls. Between personal injury, wrongful death, and warranty claims, and the deal with the federal government, Toyota has paid approximately $3 billion. However, analysts estimate that the company may earn as much as $19 billion in the 2014 fiscal year.

There is no doubt that the Toyota criminal penalties and poor response to the safety issues in 2009 led to GM’s decision last month to commence massive recalls of 2005-2009 Cobalts, Ions, and Pontiacs with defective ignition switches resulting in many deaths and serious injuries from the loss of power to safety systems, in particular, power steering and airbags. Certainly, the fact that Congress intends to conduct hearings into GM’s ignition switch safety recalls also contributed to GM’s strategy. Further, GM’s sudden change in strategy to attempt resolution of many of the personal injury and wronged death claims is undoubtedly influenced by Toyota’s maladroit response to its safety recalls and the aftermath, which resulted in a huge payout to the feds that GM is seeking to avert.

Perhaps the Toyota and GM safety issues, which have cost countless lives and resulted in grievous injuries, will now be the impetus for the Motor Vehicle Safety Act, which failed to pass the Congress in 2010. Under this long overdue and sensible legislation, fought and defeated by auto industry lobbyists and their cronies in Congress, more funds would be provided to the NHTSA to investigate automobile defects; publicize a database of early warnings that auto manufacturers issue to the government; and authorize the agency to assess larger fines against corporations that fail to timely recall defective automobiles.

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The No-Fault Law is an absolute albatross around the necks of injured people and their attorneys in New York State, and has been so since its implementation in 1974. The basic purpose of the law when it was promulgated was twofold: to allow for the expeditious handling of automobile accident claims which were deemed to meet what is known as the “no-fault threshold”, and second, to root out what was perceived to be fraudulent, non meritorious claims. One of the main reasons that this antiquated law needs to be significantly modified in 2013 is that when the law was placed into effect, there were no MRI’s, CAT Scans, and other radiological examinations which could conclusively determine whether the injured driver or passenger had suffered a “soft tissue” (cartilage, ligament, tendon, spinal disc) injury . Thus, the inclusion of a fracture as a “no-fault threshold” injury, (because this injury could be determined by x-rays), but not, for example, a herniated disc of the neck or back, or a torn tendon or ligament.

Thus, as the No-Fault law presently exists, a fractured toe or pinky automatically meets the requirements of a no-fault “threshold” injury, but a person who suffers a torn tendon, ligament, cartilage or other “soft tissue” injury such as a herniated disc, which is in all likelihood, much more serious than a broken toe (for which there is no treatment), may have no case under the No-Fault law!

The No-fault threshold includes several very specific injuries suffered in motor vehicle accidents, as well as three general types of injuries contained in three sections of the statute which are poorly worded, confusing, and constitute a huge percentage of the litigation instituted by the no-fault insurance companies and their lawyers in contesting No-fault claims. The definitive sections are as follows:

Significant disfigurement;
A fracture;
Loss of a fetus;

Permanent loss of use of a body organ, member, function or system.

The problems arise in interpreting the following three sections: 1) “permanent consequential limitation of use of a body organ or member; 2) “significant limitation of use of a body function or system”; and 3) “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.” That last section is a true example of legislators gone amok.

The problems arise in the interpretation of many of the terms—for example, what is “significant limitation of use”? Isn’t that different for each person who is injured in an accident? What is a “consequential limitation”? What are the “material acts which constitute a person’s usual and customary daily activities”? As can be seen, the vague and inconsistent terminology utilized by the drafters of the No-Fault Law was fraught with difficulty from the inception of the statute, almost forty years ago.

Another problem that has arisen, and which brings us to the point of this article, is interpretations of the law by judges (seemingly supportive of the insurance industry) adding in requirements which were never part of the original statute, and which make claims and cases even more difficult to settle or win in Court. The Ramkumar decision is a classic example of this. In this case, the plaintiff was cut off from treatment by his own no-fault insurance company after only five months of treatment, despite the fact that he had suffered a torn meniscus in the accident in question, for which he required surgery. The lower Court dismissed his case, stating that he had not properly offered documentary evidence and a sufficient explanation for why he didn’t continue treatment after his no-fault insurance company had terminated his benefits. Essentially, the lower Court ruled that after the no-fault carrier booted him from coverage, Mr. Ramkumar was required to either continue treatment with his health insurance company, or if no health insurance was available, provide a “reasonable explanation” why he didn’t pay for his treatment out of his own pocket. Of course, nowhere in the antiquated No-Fault law is this requirement included. Fortunately, the majority in the Court of Appeals noted that although a plaintiff is required to have some explanation why he stopped treatment for his injuries after only five months, not having health insurance nor money to pay for medical treatment out of his pocket WAS a reasonable explanation. Further, the Court stated that the case should not have been dismissed because the evidence showed that the treating surgeon found that the meniscus permanently lost stability due to scar tissue, which Mr. Ramkumar will have for the remainder of his life.

The other irony here is that the no-fault carriers send injured victims of car accidents to no fault “IME”S (Independent medical examinations, which are anything but independent) within weeks, and sometimes days, after car accidents, to be conducted by “examiners” who are paid for by the no-fault insurance companies for a specific purpose—to find that there is nothing wrong with the injured person, thus permitting Allstate, State Farm, Geico, Progressive et. al. to stop paying for treatment. Of course, this is exactly what happened with Mr. Ramkumar, although he was fortunate enough to have obtained five months of treatment before thrown off coverage by the insurance carrier he was paying premiums to.

The moral of this story is simple. If you really want to root out fraud, call, fax, email or text your local legislator (if you are fortunate enough to have a cell phone number for the legislator) with a simple message. The No-fault law is unfair. It is outdated. When it was written, there was no means to determine if someone had suffered a “soft tissue” injury, but in case you missed it, now we have MRI’s, CAT Scans, Bone Scans, EMG’s, and numerous other tests for these injuries. The No-Fault law protects the car insurance companies at the expense of innocent victims of automobile accidents. If you want to examine fraud, take a look at no-fault exams by insurance company doctors, who perform dozens of three minute “exams” each week on injured people with the conclusions in their reports written before the person walks into the examiner’s office.

Hopefully, if enough people do this, we will finally get traction with Governor Cuomo, who does not believe this is a problem, apparently.

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On Sunday, July 8, 2012, there was a fatal accident on the Saw Mill Parkway in Yonkers near the Rumsey Road exit. At approximately 12:15 PM that Sunday, a Mercedes driven by 36 year old Kenyatta Garner of South Carolina was traveling northbound at a reportedly excessive speed when Garner struck a Honda Civic in the right lane and lost control of the vehicle. According to the Westchester County Police, the Garner vehicle then struck a center divider, hit an overpass for the eastbound Cross County parkway, and flipped over numerous times. According to a police spokesman, the Mercedes then “disintegrated”, with twisted metal, debris, and a trail of bodies left behind.

Two passengers in the Garner vehicle were killed when they were ejected from the car: Tony Fortune, 46, and Shanikka Hunter, 28, both of the Bronx. Mr. Fortune was a front seat passenger who was reportedly ejected from the sunroof, and Ms. Hunter was a rear seat passenger. It is believed that neither Mr. Fortune nor Ms. Hunter were wearing seat belts. The other three occupants of the car also suffered serious injuries and were hospitalized at Jacobi Medical Center in the Bronx, with one listed as critical. However, the extent of their injuries has not yet been disclosed.

The driver of the Honda Civic initially struck by the Mercedes, 23 year old Benjamin Ferder of New Rochelle, was fortunately not seriously injured, and was treated and released from Jacobi Medical Center.

The Saw Mill Parkway is one of a group of Westchester County Roadways which is particularly dangerous, (along with the Bronx River Parkway and Hutchinson River Parkway), in that the roadway is narrow, a large portion of the roadway has no shoulders, and there are many short entrances to the parkway making it very difficult to merge with traffic already flowing at 60-70 m.p.h. The Saw Mill Parkway is approximately 30 miles in length, beginning from the Henry Hudson Parkway in Yonkers to I-684 in Bedford. Since 1980, the parkway has been maintained by the New York State DOT, and approximately 95,000 vehicles use the parkway on a daily basis. Construction of the parkway began in 1926, when vehicles were obviously a lot smaller and didn’t travel at speeds over 60 miles per hour. World War II put a halt to construction for a few years in the 1940’s. Widening the parkway was considered in the 1950’s and 1960’s but never happened, and vehicles clearly are travelling at faster speeds than ever with distracted driving becoming a bigger issue, adding to the dangers overall.

It is likely that the final determination of the Westchester County Police will be that the primary factor in this horrific car accident was excessive speed, and certainly toxicology tests will be done to examine whether intoxication played a role. However, there is no doubt that the configuration and narrow boundaries of the Saw Mill Parkway add to the dangers of high speed driving on this roadway. At some point in the future, maybe the issue of widening this well traveled parkway will be reconsidered and implemented.

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26 year old Rachel Fraulo of Westport, Connecticut recently commenced a “Liquor liability” lawsuit against an out of business Mount Kisco tavern, O’Malley’s, and its two owners in Federal Court in White Plains arising out of a serious car crash in January of 2009. She alleges that as a result of the accident, she suffered traumatic brain injury (TBI), permanent vision impairment, several fractured bones and neck injuries. The facts are as follows. At approximately 3:30 AM on January 11, 2009, Rachel Fraulo was a passenger in an automobile driven by her friend Brian Vittorini, 34, when the vehicle driven by Vittorini struck a guardrail at the end of the southbound exit ramp on I-684 in Katonah, adjacent to Route 35.

The suit charges that prior to the accident, Vittorini was visibly intoxicated after having consumed “dozens” of Jack Daniels and Coke cocktails at O’Malley’s. Under the New York State Dram Shop Act, if it can be proven that the bar’s employees served Vittorini alcohol after observing that he was “visibly intoxicated”, and he then drove while intoxicated and caused injuries to his passenger, the bar would have liability under the Dram Shop Act.

At the time of the accident, Mr. Vittorini refused a blood alcohol test, and the Bedford Police Chief determined that the accident was caused by a combination of speed, alcohol and failure to wear seat belts. Subsequently, Vittorini pled guilty to charges of vehicular assault and driving while intoxicated. Importantly for Ms. Fraulo’s case, those convictions can be introduced into evidence during a trial of the case, with obviously significant impact on a jury when they have to determine fault. Apparently, Ms. Fraulo previously reached an undisclosed financial settlement with the insurance company representing Mr. Vittorini. If a jury were to decide that Mr. Vittorini was primarily at fault for the accident, there would have to be a determination by the Court as to how this previous settlement affects any damages awarded by the jury. In sum, a plaintiff in a personal injury lawsuit is not entitled to receive what is called a “double recovery”, meaning that the plaintiff cannot get damages for the same injuries twice. However, the plaintiff is entitled to be compensated for all potential damages, including pain and suffering, loss earnings, lost earnings potential, medical and hospital expenses, both past and present, and “loss of enjoyment of life.”

In opposition to Ms. Fraulo’s case, the defense has undoubtedly asserted a “seat belt defense.” If they can prove, through expert testimony, that Ms. Fraulo was not wearing her seat belt at the time of the accident, and can demonstrate that some or all of the injuries suffered by Ms. Fraulo would have been avoided or lessened if she were wearing her seat belt, her damages will be reduced by the percentage of her own fault for failure to comply with section 1229-c of the Vehicle & Traffic Law, which mandates that seat belts be worn by drivers and passengers of motor vehicles.

The defense will further claim that Ms. Fraulo was also intoxicated, and should not have entered the vehicle with Mr. Vittorini knowing that he was intoxicated. It is unclear whether they will be able to prove this defense or not, but it can be particularly damaging if the jury is convinced that Ms. Fraulo was at fault for entering the car knowing that Mr. Vittorini was “visibly intoxicated.”

One other point which can be a significant issue in this case is whether O’Malley’s had a liability insurance policy which contained a provision for Dram Shop or Liquor Liability coverage. This type of insurance is very expensive, and in my experience, many bars and nightclubs do not carry Dram Shop insurance for that reason. If O’Malley’s did not have Dram Shop coverage, Ms. Fraulo also has a claim against the two owners of the bar, ostensibly to assert a claim against their assets if they were uninsured for the accident. I would assume that prior to commencing a case in federal Court, Ms. Fraulo’s attorneys have determined that either O’Malley’s has sufficient insurance coverage, or that the owners have assets to make the lawsuit worth pursuing.

The case has been adjourned to October of 2012 for trial of this action after a hearing this month. We will follow this case when it commences in October.

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On March 29, 2012, at approximately 2:30 AM, off duty Mount Vernon Police Officer Reginald Velez was killed when he drove his vehicle the wrong way on the southbound lanes of I-95 and his vehicle was struck by a tractor-trailer. An investigation of the causes of the fatal car accident by the NYPD continues, as does the local police investigation. It has been reported that prior to the 2:30 AM accident, Officer Velez had been to the Isla Verde bar in the Bronx, as well as to a local diner with friends, although it is unknown at this time whether Velez had anything of an alcoholic nature to drink at Isla Verde.

In recent years, there have been a multitude of wrong way accidents on Westchester Parkways and highways, most notably being the July, 2009 tragic accident involving Diane Schuler, who drove southbound in the northbound lanes of the Taconic Parkway with a blood alcohol concentration (BAC) of 0.18%, more than double the legal limit. Schuler was driving with her infant daughter, five year old son, and three nieces in the car. She hit a northbound vehicle head on, causing the death of the three men in the northbound car, her daughter, three nieces, and her own death.

Until toxicology results are obtained (most likely by mid May), it will be unknown if alcohol played any role in Velez’ untimely death. His fiancee has stated that she believed fatigue (due to many hours of overtime) was a significant factor in the accident. Further, a bartender at Isla Verde was quoted as saying that Velez “did not ask me for for anything and didn’t drink.” However, there is no question that the bar could face civil liability under the New York Dram Shop Law to members of Velez’ family (not his fiancee as she was not his wife at the time of the accident) if it is found that the bar served Velez alcohol while he was “visibly intoxicated” and that this intoxication led directly to Velez’ fatal accident. Therefore, the statements of the waitress must be considered within the context of the possibility of a possible lawsuit.

The NY City Medical Examiner concluded that Officer Velez died of blunt force trauma to his torso. Upon impact, Velez’ 2002 white Lexus sedan burst into flames. The driver of the tractor-trailer, who was uninjured, noted that he had no time to avoid the accident, which occurred near exit 11 on the northbound lanes of I-95.

We will report further on the release of the toxicology results.

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