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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.

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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.

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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.

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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.

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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.

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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.

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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.

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The National Highway Traffic Safety Administration (NHTSA) has released its annual report analyzing motorcycle helmet use throughout the United States. Helmet usage in the northeast has increased from 47% in 2006 to 58% in 2007, which unquestionably reduces fatalities and personal injuries suffered in New York motorcycle accidents.

Helmet use is highest in the western United States, with 77% wearing helmets, and lowest in the Midwest, with only 49% using helmets. Rural motorcyclists wear helmets 55% of the time, whereas suburban riders’ usage is 66%. Additionally, usage is lowest on the weekends, at only 54%. The study was performed at 2000 sites across the United States on statistically sampled roadways between 7:00 AM and 6:00 PM.

Amazingly, only 20 states in addition to New York require helmet use, which reduces deaths and prevents serious injuries in motorcycle accidents.

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When clients come to our White Plains, New York office after suffering personal injury, the first question they ask is the same: “Do I have a injury case or don’t I?” The answer to this question revolves around three basic issues, as well as some other considerations which may be significant. The first question that we need to determine is liability, otherwise known as fault. To use a few examples, in a New York slip and fall case against a homeowner, we must be able to establish that: the sidewalk was in fact broken; or that there was no lighting on the stairway, or that there was ice on the driveway which had not been cleared for some time. In a New York motor vehicle accident case, examples would include establishing that: that the client had the green light; that the other driver failed to stop or yield at an intersection, or that the other driver was driving recklessly or speeding.

The second issue is insurance coverage. In motor vehicle accident cases, there are numerous questions to be asked. Does the other driver have sufficient insurance coverage? Is there the possibility of an insurance company disclaimer due to non payment of premiums, or is there the use of a vehicle which is not covered by the policy–i.e.–was the other driver using his or her vehicle for work purposes when it was only insured for personal use? If the other driver was uninsured or underinsured, does the potential client have underinsurance coverage which protects them against an uninsured/underinsured wrongdoer?

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Joe, a 32 year old Westchester County resident, is driving his 2008 Lexus to meet friends in New York City. On his way south on the F.D.R. drive, he is in a serious car accident with a New York City taxicab with a minimal liability insurance policy. Joe is taken to the hospital with serious back injuries, and ultimately is diagnosed with several herniated discs requiring an operation. Although the taxi company has offered their entire policy, Joe’s injuries are in all likelihood permanent, and even with his own no-fault insurance company paying for the surgery, how can Joe be fully compensated for his injuries in this scenario?

Underinsurance is defined as insurance coverage which protects the driver of a car who is injured by the negligent driver of a car which has minimal insurance coverage, such as a $25,000.00 policy. $25,000.00 is now the minimum required insurance coverage in New York State. Underinsurance coverage allows the insured driver to proceed to recover additional compensation against his or her own insurance company after he or she has collected the policy limits of the negligent driver’s car. The main proviso is that the wrongdoer vehicle must have a smaller amount of insurance coverage than the insured who wishes to collect against his or her own underinsurance coverage.

Underinsurance is a vitally important provision of automobile insurance coverage in New York, and it is shocking how few of our clients actually purchase this coverage when they buy a car. In New York, for only a few hundred dollars a year, coverage of up $500,000 in underinsurance can be purchased to protect against the exact scenario Joe finds himself in. The way it works is this. If the wrongdoer vehicle has a minimal insurance policy-i.e.- $25,000, and your injuries far exceed this amount, the case is settled with the negligent party for their policy limits. With notification of the accident promptly to your own insurance company and their permission to enter this initial settlement, we then proceed to commence a claim against your own insurance company under the underinsurance provision of your policy for the maximum amount of this coverage. This would be reduced by a set off of the amount you already received from the negligent driver’s company. Thus, for example, if there is a settlement of $25,000, and you have $500,000 in underinsurance coverage, there is potentially $475,000.00 in underinsurance available to you to ensure that your injuries are fully compensated.

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