Archive for the ‘NYC Attorney’ Category

WRONGFUL DEATH | CHILDREN AND INFANTS

We have noted that the awards in wrongful death cases in New York State involving the death of children or infants is almost invariably shockingly low to the average lay observer. This is because the permissible guidelines for determining the amount of such award, in New York, are generally restricted to “conscious pain and suffering” and “pecuniary loss”, the latter item of which, in the case of a child or infant, is understandably negligible.

In determining “pecuniary loss”, the jury can consider what the child or infant would have contributed to the support of the parents. Conjecture is not appropriate and consequently, proof of such an item is extremely difficult, if not impossible. It is usually to “conscious pain and suffering” that attorneys look to salvage some modicum of monetary compensation for the parents. In the event of an almost instant death then this, too, becomes a source of difficulty rather than of a just award.

THE PERSONAL  INJURY  CASE
WHY PERSONAL INJURY CASES TAKE SO LONG
PART V: SETTLEMENTS AND TRIALS
B.  Trials

If settlement cannot be reached in a case, and a final trial date has been set, the attorneys come to court and are assigned to a  room where a “jury panel”, usually numbering about fifteen people from the larger jury pool, are also sent.   The attorneys take turns introducing the case and then proceed to ask questions of each of the potential jurors.  Some jurors are dismissed “for cause,” which means there is a valid legal reason to prevent that juror from sitting on the jury.  Since the aim of each attorney is to try and have a jury composed of as many individuals the attorney perceives will be favorable to their client at trial, the attorney has at his/her disposal a number (often three) of “peremptory challenges” which allow the attorneys to exclude a juror without cause.  Once those challenges are exhausted, however, the attorney will be compelled to take everyone else, other than those that can be excused “for cause”.   Arguments regarding the dismissal of jurors are referred to a judge to resolve.

Once the jury is selected, the jurors and the attorneys go to an assigned courtroom (in some jurisdictions the selection of the jurors takes place in the assigned courtroom) with an assigned judge.

After preliminary procedures are attended to, each attorney is given an opportunity to make an “Opening Statement” to the jury.   The trial then continues with the Plaintiff presenting the Plaintiff’s Case.  This will usually consist of testimony from the Plaintiff, possible witnesses, and “Expert Testimony”.   Expert Testimony can involve testimony given by treating physicians, experts in economics discussing the future earning losses of the Plaintiff, or experts in other fields such as product or roadway  design,  police procedures, etc.   The Defendant’s attorney has the opportunity to Cross Examine every one of the Plaintiff’s witnesses, as the Plaintiff will do when the Defendant presents its case.

At the conclusion of both the Plaintiff’s and Defendant’s cases, the Trial Judge will give a “Jury Charge”.  Instructions are given to the jury as to the rules of law the jury MUST apply when it considers all  the evidence, oral and tangible exhibits, that was presented to it during the trial.  The jury then deliberates.  In a civil trial there are normally six jurors (with two alternates that are dismissed when the matter goes to the jury).

Laymen are usually not aware of the fact that the decision of the jury may not be the final word.

The judge can play a major role in restructuring or changing the determination of a jury if the judge considers that the decision of the jury contradicts a viable legal reason for sustaining the “VERDICT” of the jury.   VERDICTS can be “set aside” “as against the weight of the evidence” and money damages awarded by a jury can be increased or decreased by a judge.   Keep in mind, too, that any action a judge takes can serve as the basis of an APPEAL to a higher court.  Appeals, however, are costly and time consuming, and are usually not resorted to under other than extraordinary circumstances.

People are very concerned about the choice of a surgeon when contemplating surgery.  A person should be no less concerned about the abilities of an attorney they choose.  Often, the expertise and reputation of your attorney can result in a favorable settlement, thereby avoiding a trial, but if a trial becomes necessary, the attorney you choose may also be crucial. At Orlow, Orlow, & Orlow we have over 30 years experience with helping you get the most from your case. Contact one of our New York City Personal Injury Attorneys today for a consultation.

PART III : BEGINNING LITIGATION

The beginning of litigation refers to the start of an actual lawsuit. In cases where a NOTICE OF CLAIM was required to be filed, the law prohibits the commencement of legal action before the Notice of Claim is filed AND before the agency or governmental subdivision against which it was filed has had an opportunity to question the claimant. This questioning is called a “50 H Hearing”, the statutory name for what is simply an oral deposition of the claimant. Sometimes the “50 H Hearing is waived by the governmental entity, sometimes not. Once the hearing is held, or waived, the papers to begin the lawsuit may be filed in court, and then served on the defendant or defendants. (You, the person bringing the lawsuit, is known as the PLAINTIFF). The filing of the papers in court BEGINS the actual lawsuit.

In cases that do not require the filing of a Notice of Claim, the papers to begin the lawsuit, generally a Summons and Complaint, may be filed in court and then served upon the defendant (or defendants) at any time. The service of the Summons and Complaint is usually performed by a professional process server that works for a Process Service company. There are legal requirements as to when and how legal documents may be served, and cases can arise where the method of service will be vital to the viability of that case. This is especially true in cases that are begun very near the expiration of the Statute of Limitations, when improper service can mean the time limit within which a lawsuit MUST be brought has expired, and there is no recourse!

Just a special note regarding Statutes of Limitations:

Never, ever think you have enough time to contact your attorney about a possible lawsuit “because my friend told me that I have three years…” Time limits within which you MUST bring lawsuits vary greatly. Most negligence actions have three year time limits, most medical malpractice have two and a half, most intentional acts require lawsuits within one year, and so on. However, there are exceptions to virtually every rule. Get to an experienced attorney by calling our New York City Law Firm at Orlow, Orlow, & Orlow before your opportunity to litigate disappears!

THE PERSONAL INJURY CASE WHY PERSONAL INJURY CASES TAKE SO LONG: Part I – PRE-INTAKE PHASE

From a purely business point of view, this phase of a case may well be the most crucial to the attorney. In the field of personal injury law, cases are routinely taken on a “contingent fee” basis. This simply means that an attorney will not earn or receive any fee for his work unless there is a successful conclusion to the case, and the client receives some amount of monetary compensation. It stands to reason, therefore, that the decision as to whether or not to accept a matter into the office is of vital financial importance to the attorney. Too many cases accepted, that end in a failure to obtain compensation, will lead not only to unhappy clients, but will also lead, eventually, to an abbreviated life span for that law office.

Through diligent and meticulous questioning, the experienced attorney will delve into various aspects of the matter being presented by the potential client.

Questions relating to time, location, parties involved, conditions at the scene, preceding events, injuries sustained, relationships of parties and myriad other questions are all designed to see first, whether there is a viable case and second, whether the case has the possibility of ending in a way that both the client and the attorney can view as “successful.”

Issues involving Statues of Limitations (legal time limits for bringing a case), Damages (injuries suffered), Liability (fault of each party involved) and Coverage (available funds from insurance or other readily available sources)are all of pivotal importance to the experienced attorney at the Pre-Intake stage. At Orlow, Orlow, & Orlow we have been handling personal injury cases in New York City for over 30 years.

NOTICE OF CLAIM | MUNICIPAL LIABILITY | SPECIAL USE

Until 2003 the City of New York was primarily responsible for injuries incurred by individuals through cracks, potholes and uneven surfaces on City sidewalks. The primary responsibility shifted in 2003, through City Council legislation, that made the abutting commercial or residential landowners primarily responsible. However, in the case of one, two or three family homes, where those residences are at least partially owner occupied, and where the residence is used exclusively for residential purposes, the City of New York remains primarily responsible.

Nevertheless, even in those instances where the City of New York would be primarily responsible for accidents that occur because of sidewalk defects, the liability shifts to the homeowner if the cause of the accident was some item that was installed for the benefit or “special use” of the adjoining homeowner.

Defects in driveways are common “special use” situations. A water shut off valve, embedded in the sidewalk, has been held to be a “special use”.

Wisdom would dictate the service of a Notice of Claim on the City of New York even if a “special use” is anticipated. It simply cannot hurt, and failure to do so could be catastrophic if an incorrect assumption regarding a “special use” is made. Below I have added the legislation that shifts liability for sidewalk defects mainly from the City of New York to abutting landowners.

NEGLIGENCE: DUTY AND FORESEEABILITY

The overwhelming number of personal injury cases involve an act of “negligence” by one individual that results in an injury to another.   However, the fact that one individual’s negligent act results in another individual’s injury does not automatically create a valid basis for a lawsuit by the injured party against the negligent party.

The most famous “tort” (“tort”= a civil wrong) case studied by every law student for generations is Palsgraf v. Long Island Railroad. Mr. Palsgraf was standing on a train platform after buying his ticket, near some scales.  At the other end of the platform some men were rushing onto a train.  Conductors on the train helped the men aboard, but in the rush one man dropped a package which contained fireworks.  The fireworks exploded, causing the scales near Mr. Palsgraf, at the other end of the platform, to fall and injure Mr. Palsgraf.    Was the LIRR liable to Mr. Palsgraf for the injury he sustained?

The appeals court discussed  whether, in the first instance, there was any duty owed  Mr. Palsgraf by the LIRR and its conductors, since he was so far from the scene of the activity involving the alleged  negligence.  The lower court  ruled that there was a duty owed to Mr. Palsgraf.  The appeals court (overruling the lower court that found in favor of Mr. Palsgraf) decided that it was not reasonably foreseeable that the action by the conductors would result in injury to someone as remote as Mr. Palsgraf was to the scene of the acts. Consequently, there being no “duty”, there is no basis for the LIRR’s liability !

Since that case, courts have differed considerably in determining the basis as to whether negligent parties owe a duty to, and therefore become liable for, injuries that occur to remote individuals. The Palsgraf court established the principle of “foreseeability”–would a reasonable person have foreseen the possibility of the incident resulting in injury, in the manner the accident occurred?

Other courts have adopted a broader definition: was there a continuous and direct connection between the cause (the negligent act) and the effect (the injury)?   “Foreseeability” of the exact occurrence is not as dramatic an issue in this latter scenario.

MUNICIPAL LIABILITY | CAN I SUE THE CITY? | CASES AGAINST NEW YORK CITY | “SPECIAL DUTY”

There is a basic rule that is applied when a lawsuit is contemplated against a municipal entity, such as the City of New York. That rule gives the City, or any municipality, “absolute immunity” for the acts of that government’s employees. This holds true even if those employees failed to act when they should have, or having acted, they did so in a negligent manner.

An individual resident of the City will have no basis for a successful lawsuit for injuries sustained through the acts of the City’s employees UNLESS that individual can demonstrate that a “SPECIAL DUTY” existed on the part of the City in favor of that particular individual.

The New York Court of Appeals (New York’s highest court) established four “elements” that create a “SPECIAL DUTY” relationship between a municipality and an individual:
— the municipality assumes a duty to act on behalf of the individual;
— the municipality’s employees must be aware of the fact that a failure to act may result in harm to that individual;
— there must have been some direct contact between the municipality’s employees or agents and the affected individual; and
— the individual harmed must have been justified in relying upon the assurance given to him/her by the city’s employees or agents.
Without demonstrating the existence of each and every one of these four elements, the injury incurred through the acts or omissions of municipal employees may go entirely uncompensated.

An experienced Personal Injury Attorney will also be aware of the fact that certain broad areas of acts by municipal employees are not considered “governmental” in nature–which acts ARE subject to the rules of “Special Duty Relationships”—but are , rather, considered “proprietary” in nature, and are instead decided by ordinary rules of liability and do not require the establishment of a “special duty” in order for the city to be held liable.

Trucking accidents usually involve more than one injury. Earlier this month another tragic accident took the lives of a mother & daughter in Nassau County.

“Nassau County Police say the driver of the 18-wheeler failed to stop for a red traffic light at Hicksville Road and Central Park Avenue hitting a 2006 Pontiac carrying Barbara Ryan, 44, and Joanna Ryan, 11.

Two other cars were also involved in the collision. According to police, a 1998 Lincoln Town Car was struck and then hit a 1998 Honda sedan and a 1997 Mitsubishi. The 71-year-old female driver of the Lincoln Town Car the 23-year-old male driver of the Honda were hospitalized with minor injuries

Police say the driver of the tractor-trailer passed a preliminary breath test and voluntarily submitted to a blood test for chemical substances. Criminality is not suspected.”

If you or a loved one has been involved in a truck accident in New York contact our Long Island City Attorneys office today to speak to one of our experienced partners.

Source: http://www.myfoxny.com

Car accidents are a problem that effects most of us at least once in our lives. Some accidents are worse than others but we can help our clients with all types of accidents. Last Saturday there was an accident that left the police with a case of mistaken identity for the victim.

“Alfred and Geri Esposito of Mastic Beach were told Saturday morning that their son Freddy and another passenger had been killed in a collision with a tractor-trailer on a Pennsylvania highway.

“He [a Suffolk County police officer] gave me the name of the hospital and said the coroner would be in touch with me,” Alfred Esposito told NBCNewYork. “And said that I would need to come to Pennsylvania to identify the body.”

It turns out Freddy wasn’t dead. He was asleep on a couch in an apartment he rents with his brother. The dead man was one of his former fraternity brothers — a revelation that both relieved and upset the Espositos.”

If you are involved in a car accident contact our experienced New York legal team today for a free consultation.

Source: http://www.nbcnewyork.com

INTENTIONAL TORTS

We noted previously that a “tort” is simply a civil, as opposed to a criminal, wrong, committed against another. While criminal acts often result in incarceration to the perpetrator, the consequence flowing from the performance of a civil wrong, or “tort”, is the imposition of money damages imposed upon the “tortfeasor” and awarded to the injured party.

“Torts” are divided into those that are “intentional” and those that are unintentional.

They can be distinguished rather easily by answering the question:  Did the person (“tortfeasor”) engaging in the particular action, purposely want the results of that act to occur OR was it “substantially certain” that a reasonable person could see that the results of that action would occur.

D, driving his car, sees T, who insulted D’s wife last week, on the sidewalk.    D wants to scare the daylights out of T so he decides to drive his car on to a busy sidewalk.  T is not hurt but, as D swerves, he hits P, an uninvolved pedestrian, severely injuring him. D committed an  ”intentional tort”  with respect to P !

The distinction between an intentional and unintentional tort, in the field of Personal Injury law, could be crucial and devastating.     The “Statute of Limitations” for unintentional torts is virtually always three years in New York State (with certain exceptions such as in the field of medical malpractice).   However, lawsuits based on “intentional torts” have a Statute of Limitations (the time within which a lawsuit MUST be brought) in New York of only ONE year.   Consequently, for this and many other reasons we have been pointing out, consulting with an experienced Personal Injury Attorney just as soon after you suffer an injury as possible can mean the difference between realizing compensation for the injury you sustained or forfeiting that possibility through ignorance and inaction.