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Despite the old saying “You can’t fight city hall,” it is possible to recover damages in New York for injuries caused by the negligence of a government official or employee. In order to file suit against the state, a political subdivision (cities, towns, etc.), or a government official, an injured person must give a specific type of notice within ninety days of the injury. Failure to provide this notice may bar the claim altogether. Certain types of injuries or claims might be subject to different rules. Anyone who has been injured because of government negligence should understand the special requirements for municipal and state liability.

The legal doctrine of sovereign immunity prevents a government from being sued without its consent. This derives from an English common-law doctrine that held that the King could not be sued in his own courts. Every government in the U.S., from the federal to village levels, has consented to suit for various types of claims. Allowing suits for breach of contract, for example, allows private companies to feel comfortable doing business with governments. Laws like the Federal Tort Claims Act allows individuals to file suit for personal injuries caused by a government or government official.

The New York Court of Claims Act gives consent to certain types of lawsuits, and establishes the Court of Claims to handle those suits. Section 8 of the CCA waives the state’s immunity from liability, and “assumes liability…in accordance with the same rules of law as applied…against individuals or corporations.” Section 10(3) states that anyone claiming personal injuries must file their claim, or a notice of intent to file a claim, within a certain amount of time.
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Nursing homes provide care for some of the most vulnerable people in our society. Our legal system therefore holds them to a very high standard. When a nursing home fails to provide adequate care to a resident, it could be held liable for resulting injuries. The common-law theory of negligence, when applied to a medical professional like a doctor or nurse, is often known as malpractice. Nursing home residents in Westchester County and throughout New York are also protected by a state law that allows them to sue a nursing home that causes injury by depriving them of a “right or benefit.”

In order to prevail in a negligence claim, a plaintiff must prove several elements. First, they must establish that the defendant owed a duty of care to them, or to the general public. Doctors, nurses, and other medical professionals owe a duty of care to their patients as a matter of law. A plaintiff must also prove that the defendant breached the duty of care owed to them, and that this breach caused their injuries. This is often the most challenging part of a claim for nursing home malpractice in New York. A plaintiff must demonstrate that, without the defendant’s breach, the injury most likely would not have occurred.

Medical errors, such as prescribing or administering the wrong medication, or the wrong dosage of medication, could constitute a breach of a medical professional’s duty of care. In the context of a nursing home, many breaches involve neglect of a resident’s basic needs, such as food, water, hygiene, or social connection.
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Opioids were responsible for over 47,000 overdose deaths in 2017, according to the Center for Disease Control and Prevention (CDC). Over one-third of those deaths involved medications obtained with a prescription. Doctors often prescribe opioids for pain management, but the use of opioids for long-term management has reportedly never received adequate scientific review. In February 2019, the U.S. Food and Drug Administration (FDA) directed drug companies that manufacture approved opioid pain medications to conduct further research on their long-term use. This directive came after widespread criticism of the agency regarding its handling of the opioid epidemic. Manufacturers of well-known prescription opioids have also faced extensive criticism for allegedly pressuring the FDA to modify drug labels and inserts to allow expanded marketing and prescribing.

The term “opioid” refers to a class of drugs used in pain management. It includes illegal drugs like heroin, as well as controlled substances that are available for medical use like morphine, codeine, oxycodone, and hydrocodone. Opioids are different from opiates, in the sense that while opiates are derived from naturally-occurring chemicals in the opium poppy, “opioid” describes any substance that binds with opioid receptors in the human body. It therefore includes synthetic compounds like fentanyl.

Heroin is classified as a Schedule I controlled substance under federal law, meaning that the federal government has determined that it has “a high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use…under medical supervision.” Numerous other opiates and opium derivatives, including certain forms of codeine and morphine, are also listed in Schedule I. Other opiates and opioids are listed in Schedule II, which allows for medical use. These include fentanyl and substances that are “chemically equivalent or identical with” substances listed in Schedule I, such as oxycodone.
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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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New York construction law places extensive obligations on property owners and general contractors to provide a safe work environment. The New York Labor Law (NYLL) allows workers and others to file civil suits for damages if violations of safety requirements cause injury. These claims can be made in addition to claims under the common law of negligence. Section 241(6) of the NYLL codifies the set of safety regulations known as the Industrial Code. Recent court decisions from New York Appellate Courts demonstrate how workers in New York State can assert claims for injuries caused by violations of § 241(6).

Section 241(6) of the NYLL applies to all sites where “construction, excavation or demolition work” is ongoing. It requires any site to be “constructed,…operated and conducted” in a way that “provide[s] reasonable and adequate protection and safety” to anyone “lawfully frequenting” the site. It authorizes the New York Department of Labor to promulgate rules to allow effective enforcement. The Industrial Code, found in Title 12, Chapter I, Subchapter A of the New York Codes, Rules and Regulations (NYCRR), is the result of this authorization. It includes regulations regarding construction and demolition operations, as well as building codes, and rules for equipment like elevators and boilers.

The New York Appellate Division, Second Department described § 241(6) as a “nondelegable duty of reasonable care upon owners and contractors.” Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 983 (2014). Under the common law theory of negligence, a defendant is liable for damages when they breach of a duty of care owed to the plaintiff, and that breach causes the plaintiff injury. Section 241(6) essentially states that property owners and general contractors owe a duty of care to construction workers to abide by the Industrial Code.
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New York law offers numerous protections for workers who suffer injuries while performing dangerous work. Construction workers routinely find themselves in unequal bargaining positions with contractors and property owners. If they demand better safety equipment, and safer conditions in general, they might find that speaking out puts their jobs at risk. Workers who are injured because of poor safety conditions might encounter difficulty establishing liability and recovering damages. Section 240 of the New York Labor Law, commonly known as the “Scaffold Law,” establishes liability for contractors and others who control the work on construction sites. Recent New York court decisions have examined various circumstances that support relief under the Scaffold Law.

Under the Scaffold Law, contractors and property owners are responsible for providing scaffolding and other equipment that gives “proper protection” to construction workers employed on the site. The law makes an exception for residential property owners who “contract for but do not direct or control the work.” In 1993, the New York Court of Appeals held in Ross v. Curtis-Palmer Hydro-Electric Co. that “the duty imposed by Labor Law § 240(1) is nondelegable.” The court further held that an owner or contractor is liable for damages caused by a breach of the Scaffold Law “regardless of whether it has actually exercised supervision or control over the work.”

The purpose of the Scaffold Law is, in one sense, to protect construction workers against “gravity-related risks,” as the Supreme Court in Manhattan noted earlier this year in Ryerson v. 580 Park Ave. The court held that the Scaffold Law did not apply because the plaintiff’s injury was the result of tripping and falling, not “falling from a height or being struck by a falling object.” In another Manhattan case, Terranova v. ERY Tenant, the court held that a plaintiff’s injury was covered by the Scaffold law even though it did not directly involve a falling object. The injury occurred after a beam began to swing during hoisting. The plaintiff “slipped while trying to get out of the beam’s path.” The court held that the Scaffold Law applied because “the process of lifting the beam created an elevation-related risk” to the plaintiff and other workers.
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Owners of real property owe a duty of care to people invited onto their property under the legal theory of “premises liability,” a common-law doctrine derived from the theory of negligence (i.e., the absence of ordinary care). Premises liability generally holds that a property owner has a duty to maintain their property in a reasonably safe condition, and may be liable for injuries caused by a hazardous condition. The “trivial defects” doctrine is an important exception to New York premises liability. It holds that a property owner is not liable if the defect, when examined in light of the unique circumstances of the site, is not objectively dangerous. The New York Court of Appeals has held on several occasions that this is a question of fact best left to a jury. Courts in New York’s 9th Judicial District, whose jurisdiction consists of Westchester, Dutchess, Orange, Putnam, and Rockland Counties, have considered several claims recently involving the trivial defect doctrine, and have often sided with plaintiffs.

In a negligence claim, a plaintiff has the burden of proving four elements. First, the plaintiff must establish that the defendant owed a duty of care, either to the plaintiff or the general public. Second, they must demonstrate that the defendant breached this duty of care. Third, they must show that this breach was the cause-in-fact of the plaintiff’s injuries. Finally, the plaintiff must substantiate measurable damages resulting from their injuries.

Premises liability involves a particular duty of care, from a property owner to individuals who have been invited onto the property. In some situations, such as the “attractive nuisance” doctrine, this duty of care also extends to trespassers. A plaintiff must show that the property owner knew or should have known about a defect or hazard on the property, and that they breached their duty of care by failing to repair the defect, insufficiently repairing it, or failing to warn visitors about it.
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If you have been charged with driving under the influence, you need to reach out to a seasoned New York DWI attorney who understands this area of law. At the Law Offices of Mark A. Siesel, we can examine the facts of your case and make sure that none of your rights were violated when you were stopped or arrested. With 31 years of experience, we are dedicated to providing strong, effective, and experienced advocacy throughout the entire legal process.

In New York, the basic offense of driving while intoxicated (DWI) consists of operating a motor vehicle with a blood alcohol concentration (BAC) of 0.08 percent or higher. In other words, someone with a BAC of 0.08 percent or more is legally considered drunk or intoxicated. DWI is not the only alcohol-related charge that New York drivers potentially face. Drivers could also face a charge of driving while ability impaired (DWAI), which is charged when a person’s BAC is between 0.05 percent and 0.07 percent, a lower threshold than a DWI.

When a person operates a motor vehicle under the influence of drugs, that person can be charged with a DWAID – driving while ability impaired by drugs. This charge is specifically for impairment by a controlled substance, regardless of whether those drugs were legal, illegal, or prescription. However, the particular impairing drug must be listed as a controlled substance under the New York State Public Health Law. Thus, impairment by some drugs may not form the basis of a DWAID charge.

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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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On March 23, 2018, a self driving Tesla SUV crashed while the vehicle was operating on autopilot in Mountain View, California. According to a spokesperson for Tesla, Walter Huang, 38, a software engineer for Apple, did not have his hands on the steering wheel for approximately six seconds before the fatal crash occurred.

Tesla maintains that its “autopilot” system can brake, accelerate, control speed, change lanes and self-park, but does require that the operator must keep his or her eyes on the road and hands on the steering wheel so that they can control the vehicle to prevent accidents.

Tesla contends that in the March 23rd accident, Mr. Huang took no evasive measures to prevent the Model X SUV from colliding with a concrete divider. This despite allegedly receiving “several visual and one audible hands on warning earlier in the drive”. Photographic evidence shows that the front of the SUV was destroyed, the roof torn from the car and the front wheels were off the vehicle and on the roadway. Additionally, the vehicle went on fire, but Tesla alleges that Mr. Huang was not in the vehicle when this occurred. Further, the accident was worsened as a result of a missing or damaged safety shield at the end of the barrier, which is designed to reduce the impact into the divider. Continue reading ›