Articles Posted in Uncategorized

This past Saturday, July 18, 2015, there was an horrific DWI crash in Cutchogue on Long Island.  An intoxicated driver of a pick up truck that collided with a limousine and killed four women attempted to leave the scene of the accident.  Police reported that the driver of the pick up truck, Carlos Romeo, 55, got out of his truck after the crash and walked approximately 1000 feet, climbed a fence and was walking down an embankment when ordered to stop by Southold Police Officers.  Mr. Romeo was given standardized field sobriety tests and was arrested for DWI.

The accident occurred when Mr. Romeo, who was driving westbound on Route 48, collided with a limousine carrying eight young women who had returned from a local winery and were celebrating a birthday.  The limousine driver attempted to make a U-turn at an intersection, when the limo was broadsided on the passenger side by the pick up truck.  3 of the women were pinned inside the limousine and a fourth died later that day at Peconic Bay Medical Center.  The four women who were killed were identified by Southold Police Chief Martin Flatley as Brittney M. Schulman, 23, of Smithtown, Lauren Baruch, 24, also of Smithtown; Stephanie Belli, 23, of nearby Kings Park; and Amy R. Grabina, 23, of Commack, on the North Shore.

Mr. Romeo has had previous legal problems.  Back in January of 2014, he was operating construction equipment without proper training when a bucket fell off, fatally striking a co-worker.  There is a civil lawsuit pending in that case by the family of the co-worker.  After the July 18th accident, Mr. Romeo was taken to Eastern Long Island Hospital.  At the hospital, blood tests determined that Mr. Romeo’s blood alcohol level was in excess of 0.08%, the legal standard for intoxication in New York, and he was arraigned at his hospital bed, pled not guilty, and was ordered held on $500,000 cash bail or $1 million bond, and charged with one count of misdemeanor DWI, which carries fines of approximately $900.00 and a minimum six month revocation of his driver’s license.  However, Mr. Romeo faces much more severe criminal responsibility than the DWI he is presently charged with, due to the four fatalities and serious injuries of the other young women in the limousine.

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The Town of New Castle (Chappaqua), has moved forward with safety improvements at its Roaring Brook Road Metro-North railroad crossing without waiting for federal funding for implementation.  In light of the recent February 3 horrific crash a few miles south at the Commerce Street crossing in Valhalla, in which Edgemont resident and married mother of three Ellen Brody was killed (along with five front car passengers on the northbound Metro North train) when her Mercedes SUV was struck, the issue of railroad crossing safety has become a high priority.

The Roaring Brook Road crossing is one of seventeen railroad crossings in Westchester County, and Putnam County.  Additional railroad crossings are located in Rockland County.  The safest crossings are either tunnels or bridges above the tracks.  However, the cost of such measures can be prohibitive.  The Town of North Castle apparently considered installing an overpass in its development plan in 1963 and again in 1989.  Town officials state that there have been fourteen reported malfunctions of the railroad gates at the Roaring Brook Crossing in the last ten years.  The MTA, responsible for maintenance and operation of the warnings systems, alleges that there have been only nine reported malfunctions in the last five years, but that tests they conducted did not show any defects on those nine occasions.

When gates do not function correctly, the “fail safe” position is that they are supposed to go down and stay in position while the crossing lights remain on.  There have been two reported close calls at the Roaring Brook station this month in which that did not happen.  In one, a Chappaqua resident had to back up quickly when the crossing lights came on and the gates began dropping.  She claims that the train went by five seconds after she got off the tracks; Metro-North states that it was 15 seconds—either way, a very close call.  Earlier in March, a driver from Mount Kisco at the Roaring Brook Station claims she had to break through the gate seconds before a train traveling at 75 miles per hour came into the station.  At that speed, it would take well more than the length of two football fields to stop the train, as the train is travelling at approximately 110 feet per second at 75 miles per hour and it would take several seconds to bring the train to a complete stop.

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On February 27, 2015, 46 year old Paul Duncan, a seventeen year veteran of the NYPD and married father of a teenage daughter, was killed in a wrong way crash on the Sprain Brook Parkway, just south of Route 100B in Greenburgh.  Duncan was traveling southbound in a 2011 Honda Pilot shortly before 4:00 AM when his vehicle was struck by a 2013 Honda Civic traveling the wrong way, operated by 20 year old Efren Moreano, a Yonkers resident.  Moreano has been in a medically induced coma since the accident.

The tragic accident last week is at least the third on the Sprain and Taconic Parkways in the last five and a half years, resulting in nine deaths, and one of seven fatal accidents on highways in the region, including the New York State Thruway and I-95.  The crashes on the Taconic include the horrific July 2009 accident in which Diane Shuler, who had a BAC (blood alcohol concentration) of 0.18% (more than double the legal limit of 0.08%), drove southbound in the northbound lanes for several miles with her infant daughter, five year old son, and three nieces aged 10 and under in the car.  Shuler struck a northbound vehicle occupied by three men.  The only survivor of this tragedy was Shuler’s five year old son.

Improper and misleading signage has been blamed for some of the accidents, although in several, as in the Shuler crash, alcohol was a significant factor.  For example, in August of last year, off duty NYPD officer Richard Christopher was inebriated when he drove his pickup truck the wrong way on the New York State Thruway in Rockland County and struck a Honda CRV operated by an Airmont resident.  Both men were killed in the crash. In March of 2012, Reginald Velez, an off duty Mount Vernon police officer, was killed when he drove in the wrong direction on I-95 in the Bronx (after drinking heavily earlier that evening) and struck a tractor-trailer head on. Continue reading

Ex Olympic decathlon star and TV personality Bruce Jenner, 65, was involved in a serious car crash on February 7, 2015 on the Pacific Coast Highway in Malibu, CA.  In the accident, 69 year old widow Kim Howe was killed, and five others were injured.  The accident occurred when Jenner, who was driving a Cadillac Escalade at approximately 46 miles per hour while towing an ATV vehicle, rear ended a Lexus slowing for a traffic light operated by Ms. Howe, which caused her vehicle to cross over into the opposing lanes of travel, where it was struck by a Hummer.  Part of the accident was captured on video from a California MTA bus’ rear camera.

Although reports are that Jenner will not be prosecuted for vehicular manslaughter, his troubles are far from over in this tragic accident.  He may have been distracted by cell phone usage, and worse, the evidence shows that Jenner was following too closely, leaving him almost no time to brake to avoid the horrible collision.  The traffic infraction of following too closely will provide an evidentiary basis for a wrongful death lawsuit by Ms. Howe’s family, and personal injury lawsuits by the other five occupants of the vehicles involved in the crash, which also include a Prius that Jenner reportedly struck as well.

Jenner’s troubles begin with the fact that he reportedly has a meager $250,000 in liability insurance coverage.  Clearly, with assets which are undoubtedly in the millions, this amount of coverage is insufficient to protect those assets.  If Jenner owns homes, (unless some of these properties are jointly owned with his ex-wife Kris Jenner), vehicles (including the Escalade he was in at the time of the fatal accident), stocks, bonds, bank accounts or other liquid assets, these could all be at risk if Jenner was not also protected by an umbrella or other “excess” coverage” above the reported $250,000 policy.

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In an interesting article in the Journal News in December of 2014, the issue of the how local Westchester County high schools respond to concussions suffered by young athletes was analyzed. Dr. Mark Herceg, the director of Neuropsychology at Burke Rehabilitation Hospital in White Plains, was interviewed to discuss what the proper protocol should be when a player suffers head trauma and a concussion is suspected, in the course of a football game, for example. It is Dr. Herceg’s opinion that the correct approach to begin with is that all high schools should have a full time athletic trainer and sideline testing.

Dr. Herceg discussed the case of a local high school football player (for privacy reasons the student’s name was not disclosed) who suffered a concussion on the first day of practice. He was told to go home, without any further testing, returned to practice the next day, and had another concussion on the second day of practice. The next day, amazingly enough, he was allowed to practice again, and suffered a third concussion, which necessitated a trip to the emergency room. Despite the overwhelming and thorough coverage of the one billion dollar settlement that the NFL has entered into with former players suffering from Alzheimer’s Disease, Parkinson’s Disease, dementia, ALS, mood disorders and a whole variety of other devastating effects of traumatic brain injuries suffered during the course of their careers, it would appear that the seriousness of the traumatic brain injury issue is not being heard at the high school level.

New York State requires only that an athlete suspected of suffering a concussion be removed from play, and that coaches, school nurses and athletic trainers take an online course on concussions. However, there is no state requirement that “pre-injury cognitive testing”, or post injury sideline testing be performed on athletes, nor that school districts employ part time or full time athletic trainers. In the Westchester County town of North Salem and the City of Peekskill, for example, their high schools have no part time or full time athletic trainers.

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The Metropolitan Transportation Authority has announced that beginning in the fall of 2015, buses in New York City will be equipped with “collision avoidance devices”, which will alert bus drivers to the location of pedestrians, bicyclists and motor vehicles which are in the operator’s blind spots. The system will utilize radar and sensors with speakers mounted on the exteriors of the buses, and will sound warnings to pedestrians and others as the bus is turning, to stay clear of the direct area.

Transit authorities in Los Angeles, Baltimore and Portland have either adopted the program or tested it, with the two main providers being ProTran from Newtown, New Jersey, and Clever Devices, with headquarters located in Long Island. In 2010, the Cleveland Regional Transit Authority installed the devices on 400 buses after averaging six pedestrian deaths a year. Since 2010, there have apparently been no pedestrian fatalities reported in Cleveland.

Ironically, the bus collision rate in NYC has dropped significantly (46%) from 92 collisions per million miles travelled in 1988, to 50 per million miles travelled in 2014. Nonetheless, there were 55 pedestrians and 7 bicyclists killed in bus collisions (including buses operated by private companies) in the City since 2010. Further, 131 pedestrians died in all types of traffic accidents in NYC in 2014, which is the lowest number of fatalities reported since 1910 (when record keeping of fatalities began), but still an unacceptably high number.

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Melissa Rivers, the only daughter of the late Joan Rivers, the 81 year old comedian who died on September 4, 2014, has announced her intention to file a multimillion dollar medical malpractice and wrongful death lawsuit against the Yorkville Endoscopy Clinic in New York City. The facts are that Ms. Rivers was seen at the clinic on August 28, 2014 for a voluntary procedure to examine her upper gastrointestinal tract and vocal chords. She was under sedation with Propofol, (ironically the same drug that was responsible for the death of the pop performer Michael Jackson in June of 2009).  Rivers went into cardiac arrest during the procedure, and the allegations include the charge that Yorkville did not properly monitor her intake of Propofol, which was administered prior to the operation. Ms. Rivers was rushed to Mount Sinai Hospital from Yorkville Endoscopy, and died of low blood oxygen to her brain for an extended time, resulting in irreversible brain damage.

Melissa Rivers is the sole heir to the Rivers estate (her father, Edgar Rosenberg, committed suicide in August of 1987), and the estate has been valued as high as $100-150 million. She claims that the lawsuit is not to seek compensation, but rather to “fully determine the facts and circumstances surrounding [Joan Rivers] death.” The official cause of death was “anoxic encephalopathy due to hypoxic arrest during laryngoscopy and upper gastrointestinal endoscopy with Propofol sedation for evaluation of voice changes and gastroesophageal disease.”

Ms. Rivers was in a coma from the throat procedure on August 28, 2014 through her death on September 4, 2014. Thus, with regard to the medical malpractice allegations, which would require that her attorneys prove “conscious pain and suffering”, this will be difficult to establish unless there is some evidence that Rivers had some conscious awareness of her condition.

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This week, ten former NFL players filed objections to the NFL Concussion Lawsuit settlement due to concerns that the settlement does not adequately compensate the victims of chronic traumatic encephalopathy, or CTE. CTE is a brain injury of progressive neurological deterioration caused by repeated blows to the head. It was previously known as “dementia pugilistica”, as the condition was frequently observed in boxers. CTE has symptoms including memory loss, behavioral and mood disorders, personality changes, speech and gait abnormalities, impulsive actions and rage. 

The settlement covers approximately 20,000 players, and the great majority of those players or their families for those who are deceased are accepting the terms of the settlement. But Robert Stern, a Boston University professor of neurology and leasing expert on CTE, has declared that players “who suffer from many of the most disturbing and disabling symptoms of CTE will not be compensated under the settlement.” 

Since CTE cannot be diagnosed in living players, the 76 cases of the diagnosis in football players were all discovered during autopsies, which is part of the reason that the CTE diagnosis was not given the same weight as other conditions when determining the compensation provided to ex-players in the settlement. For example, conditions including Alzheimer’s disease, Parkinson’s disease, ALS, (Amyotrophic Lateral Sclerosis, also known as Lou Gehrig’s Disease), and dementia do not have the same restrictions as does CTE, ostensibly because each of these diagnoses can be determined while the player is alive. As presently constituted and approved by federal justice Anita Brody of the 3rd District in Philadelphia, all caps as to total compensation were removed. However, former NFL players who were diagnosed with CTE prior to January 1, 2006, or after July 7 of this year, are not covered by the settlement.

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In the late 19th century, construction workers in New York were at the mercy of unscrupulous builders and contractors who would require underage, untrained, and worst of all unprotected workers to ascend to great heights in the construction of the skyscrapers which would soon become commonplace on the New York skyline. Finally, in 1885, through the efforts of the New York State Legislature, unions, and some progressive judges, the “Scaffold Law” was enacted. Recognizing that the burden of safety measures and procedures should not be placed on the shoulders of the workers who had no resources to protect themselves and would be fired if they refused to work in dangerous conditions, the law required that owners and contractors ensure that scaffolds, hoists, ladders and other safety devices be provided to the worker to provide “proper protection.”

Under the Scaffold Law, which is now contained in Section 240 of the New York State Labor Law, if a construction worker on a jobsite is injured as a direct result of the lack of proper safety devices, the owners and contractors are “absolutely liable” for all injuries suffered by that worker. Unless the accident is completely unrelated to the lack of safety devices, or is the result of a “recalcitrant worker” who refused to utilize safety devices available to him or her, the owner and contractors are 100% liable for the injuries suffered by the worker.

For many years now, a coalition of insurance companies, property owners and major construction firms have been utilizing an advertising and lobbying campaign on the New York State legislature to weaken the Scaffold Law. Specifically, they seek to include a comparative negligence standard in the law, which would allow juries to consider whether the worker contributed to his or her accident through his or her own conduct. This, despite the fact that there already is the “recalcitrant worker” defense and plaintiffs must prove that their injuries were “proximately caused” by the safety violation. The coalition argues, despite significant evidence against their arguments, that they are somehow losing money and construction is suffering as a result of claims made and recovered by plaintiffs injured in construction accidents throughout the State. (This claim of financial hardship is particularly hard to accept when balanced against the astronomical rents in New York City in 2014 or for new buyers seeking to purchase a one bedroom apartment in the lower East side, Chelsea or virtually anywhere in the City where prices used to be much more reasonable than on the upper West or East side). Interestingly, though, whenever insurance companies are asked to open their books and prove that they are suffering reduced profits, they claim invasion of privacy and “proprietary information” and refuse to do so.

By diluting the law, however, fatal accidents and serious injuries will undoubtedly increase significantly as there will be shifting of responsibility of safety from the major corporations and companies who can afford to implement these measures to workers who will not complain for fear of losing their jobs. There will also be a greater impact on minority and immigrant workers who more frequently work for non union companies that are less likely to provide the necessary safety equipment, and who will be fearful to say anything to avoid being fired.

It will be very interesting to observe Governor Cuomo’s response to the big business and insurance efforts to reduce the effectiveness of the Scaffold Law, particularly as he considers a run for the White House in 2016 and undoubtedly will be seeking the financial support of many of the same insurance companies and corporations that are behind the attack on a statute that has saved countless lives for well over 100 years.

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I read a very good article in the December 3, 2012 edition of New York Magazine about dangerous intersections in New York City. According to studies performed by the New York City Department of Transportation, (NYCDOT) the most dangerous intersection in the City of New York is at Webster Avenue and East Fordham Road in the Bronx. In 2008, the DOT determined that traffic accidents at the intersection resulted in serious injuries to 14 pedestrians and 2 bicyclists. Since 1995, 131 pedestrians and bicyclists have suffered injuries there.

There are numerous reasons why this intersection is so dangerous. First, Webster Avenue is approximately 70 feet wide, with no median. Studies show that the average pedestrian walks at approximately 3.5 feet per second, and elderly pedestrians and young children at a slower pace of about 2.5 feet per second. A standard walk signal can be approximately 30-45 seconds, and often, this does not provide sufficient time for the pedestrian to cross safely, particularly elderly pedestrians.

Another safety issue at Webster Avenue and East Fordham Road is the congestion caused by about 80,000 shoppers daily, as the area is a shopping hub. Additionally, Fordham University, a Metro North station and a high school are all nearby, bringing much more substantial foot traffic.

Third, due to traffic congestion, stopped vehicles cause pedestrians to cross against the light. Statistically, pedestrian accidents are over 50% more deadly than those when the light is in the pedestrian’s favor. Fourth, there are 8 bus routes which stop at the intersection. Buses are a major obstruction to visibility, rendering cars, traffic lights and pedestrians harder to observe.

The DOT has made several changes to the intersection in an effort to improve safety. The timing of the lights was increased to 56 seconds, allowing the elderly and slower pedestrians more time to cross. Timed countdown walk/don’t walk lights were added. However, it is not clear if this measure will prevent often frustrated, and late, pedestrians from crossing against the traffic light.

Another improvement has been to lengthen the left turn lanes on Webster Avenue. Statistically, there is no question that left turn accidents are much more likely to result in serious injury or death to pedestrians or bicyclists than right turn accidents. The left turn lane is now 200 feet longer (approximately 13 car lengths), providing drivers with much more time to change lanes and to execute their left turns.

The stop point for cars on Webster Avenue was moved back 12 feet behind the crosswalks. This limits the likelihood that a driver will be surprised by a pedestrian who walks in front of his or her car. Further, street markings were repainted and cross hatchings added.

On its website, the NYC DOT lists current projects that it is working on to implement safety improvements to intersections, roads, and parks around New York City.

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