October 30, 2015

On October 30, 2015, at approximately 10:38AM, the building under construction at 25 West 38th Street, New York, New York collapsed, resulting in the death of a laborer. There were about 19 workers inside the building that was in the process of being demolished in order to start construction on a luxury hotel at the site. The injured laborer and the body of the killed worked remained trapped underneath the partially collapsed building while emergency workers tried to reach them. The two top floors collapsed and the workers were trapped inside. Reports indicate the support wall collapsed falling directly onto the workers. Their efforts were hampered as the construction site was not stable and needed to be shored up.

Labor Law § 240(1), a New York State statute, imposes upon owners and general contractors a non-delegable duty to provide proper and adequate safety devices to afford protection to construction workers working on a building or structure subject to elevation-related hazards. No matter how stringent the safety standards are in New York regarding construction, all construction laborers are at risk every single day while on the job.

Any breach of the statute will impose absolute liability upon the owner and general contractor at the construction site. Moreover, negligence of the injured construction worker is of no consequence against a Labor Law §240(1) claim. This statute, along with Labor Law §241(6) and §200 (codification of common law standards) allows an injured construction worker to recover monetary damages for injuries suffered in a construction site accident.

Fatal Collapse of NYC Building


June 17, 2015

As a trial attorney I am often contacted by client's who request my opinion on whether their chid's accident in a playground was due to negligence. They ask questions like, was there enough supervision? Did the children have enough instruction on how to use the equipment? Aren't monkey bars dangerous generally?

Often the answer results in my firm not pursuing the case. Kids do get hurt. Sometime's accidents happen. However, recently I was contacted by a wonderfully nice family and presented with an interesting case.

Their six year old son who was in first grade at the time, had fallen off a piece of equipment during school in the playground. He described the equipment as monkey bars. In fact, the school incident report also stated he fell from the monkey bars. He told me he was jumping off and landed hard on his elbow on the mat below. He had a fracture to his elbow that would require percutaneous pinning which is when a doctor places a pin through the skin to allow the bone to heal. The pin is removed a few weeks later when the bone has calcified.

At first I advised the family, that based on those facts it would seem very difficult if not impossible to bring a case against the school for negligence. Kids play, there are monkey bars and falling from them, absent a design or construction defect would likely not be a case. Especially in Staten Island, a very conservative county.

The client's mom told me she was going to visit the playground to make sure and see the layout. I of course offered to accompany her to the playground. We met and her son showed us to the area where he was playing. I was shocked. THIS WASN'T MONKEY BARS... THIS WASN'T ANYTHING I HAD EVER SEEN. IN FACT THE EQUIPMENT WAS WHAT WE LATER LEARNED WAS CALLED "ROLLING TABLE". IT IS A TABLE, SET ALMOST TWO FEET OFF THE GROUND (ATSM, The American Society for Testing & Materials rules and guidelines require exit slides and other equipment to be a maximum of 15" off the ground. the table had rollers running all across it. All the way to the ends. In the middle above the table was handles that looked like monkey bars.

We asked her son what happened. He said that he was playing and when he stood up to jump off the table, his feet rolled from under him as he was stepping down. That caused him to lose his balance and strike his elbow on the metal edge of the table.

I immediately advised the mother that this certainly seemed dangerous for 6 year old kids to be playing on. We asked her son if he was ever shown how to use the equipment. He said no.

Upon further investigation by the family and my firm along with our playground expert, we learned several important facts:

1. The school was never given instruction by anyone who installed or put the equipment in on how to use it.
2. The manufacturer sells this table normally with a flat non rolling ends so that in case used by children they have a safe method of exiting the table without having to step on rollers
3. The apparatus was meant for handicap individuals and the table would allow them to roll their body in a seated position while holding on to the monkey bars above. At the end, their assistant, would help them roll off back to their wheelchair or assisted devices.
4. The teacher testified that she never understood a safe method of using the equipment and just thought kids would figure it out.

Needless to say, my firm was retained, we prosecuted the case and as soon as we made it clear to the City of New York that the accident was caused by negligence they offered to resolve the case for a an amount that represented the full and complete value of damages.

In addition, my law firm received the following email the very next day after the matter had settled in Court:

"Ed - Would you kindly scan me color photos of the playground equipment? I would like to refer this to our RISK unit to remove or restrict the use of this equipment so that no children are hurt in the future. Thanks in advance and all the best."

The mom of the boy also wrote my firm an email which indicated their appreciation for our efforts and the outcome: Name's have been changed.

Dear Mr. Steinberg,
This news means more to me than anything. The day "John" was hurt was a very emotional day for me as he needed surgery and I worried about his future. Days after October 24th I went to visit the playground and knew in my gut as a parent that this equipment was unsafe. Not only for what happened to "John" but children could also get their tiny fingers caught in between the bars and if a girl with long hair laid on the table, her hair could possibly get rolled up in the bars. Since that time I advised "John" to never go on this equipment again as the students still go outside for outdoor gym. I had spoken to the parent coordinator and requested that they give the students instruction on how to safely play on this equipment perhaps at a school assembly but to no avail.

As my youngest is entering "School" in September for kindergarten I have given him my same speech about not playing on the rolling table as I would not want him to go through what "John" went through. I still see this equipment as an accident waiting to happen. As I drove to pick up "John" from school yesterday and saw the table again, I saw a young child standing on it. I immediately thought to myself, "Please don't let her get hurt." As I say this I remember bringing "John" to his pediatrician as he wore the brace and she said that I should take his picture and tape it on the equipment to warn parents to not have their children go on the rolling table.

If this case can remove the unsafe equipment, I know we have truly made the world a better place. As sappy as it sounds, as a parent and educator, I am overjoyed that "John's" case will hopefully bring about a safe environment for all kids.

I want to thank you again for being "John's"attorney through this all. From the moment I spoke to you on the phone, I knew you were a dedicated professional that would fight for what was right. When I met you I could see that you were sincere and treated my son fairly and were appropriate to him considering his young age. You treated "John" as if he was your own, never stopping for what you believed he deserved. From the bottom of my heart, my family thanks you for your time, dedication and availability at all times.

"Jane Doe"

The lesson I learned was that a lawyer must always investigate a matter as best they can as soon as they can. Furthermore, most attorney's would have heard monkey bars and boy falling and probably passed on the case. Our investigation and cooperation from the family was critical in the successful outcome.

NJ Transit Bus Rear-Ends School Bus in Lincoln Tunnel Results in Dozens of Injuries

June 11, 2015

On June 10, 2015, at 9:35AM, in the Manhattan-bound tube of the Lincoln Tunnel, a NJ Transit bus carrying 60 people rear-ended a privately owned charter bus carrying middle-school students going on a class sightseeing trip. Passengers on the NJ Transit bus described the impact as heavy and violent, as the NJ Transit bus driver traveling 30 miles per hour plowed into the rear of the school charter bus which was stopped in traffic. On scene reports tell that the NJ Transit bus driver wasn't paying attention as he hurdled towards stopped vehicles.

Commuters were instantly screaming, and scrambling to help others following the impact. First responders needed to saw open the door of the NJ transit bus.

The accident shut-down the center tube of traffic as injured passengers, and a pregnant woman in labor needed to be evacuated for medical treatment. Numerous passengers were screaming of pain as they hit their faces, and had their bodies jolted following the impact. Many people were bloodied from the impact and others complained that they suffered broken noses. Passengers described the violent impact and chaotic scene as first responders were on scene. 4 people were taken from the scene on stretchers, with 21 people being taken to Bellevue Hospital.

Attorneys from Leav & Steinberg specialize in defending the rights of injured people following accidents that were caused by the negligence of others. In fact, we successfully litigated and settled a case last year that involved a multiple bus accident that occurred in the Lincoln Tunnel. The plaintiff in that action was a bus passenger who suffered a laceration to his chin and injuries to his jaw.


April 14, 2015

It was with great anger that I read the article from the NY Times discussing a South Carolina man who was fatally shot by a police officer after being pulled over for a broken taillight on his vehicle. As Walter Scott the driver was outside the vehicle, a scuffle ensued. Certainly we would expect the officer to use that force necessary. However, due to video captured by a bystander, Mr. Scott is seen running away, when Officer William Slager fires multiple shots at him when he is at least 15-20 feet away. What is captured on video next is terrible.

The officer approaches Mr. Scott see that he has been wounded, handcuffs him, but then walks back to where the vehicle was, picks up his Taser gun and drops it right at the foot of a dying Mr. Scott. This, he hoped, would be his alibi that he feared for his safety and that Mr. Scott had used the Taser on him and fled with it.

Officer Slager is being charged with murder.

The brazen acts of this officer are both shocking and upsetting. It reminded me of the matter in which my firm, Leav & Steinberg, LLP is representing the Estate of Eddie Fernandez who was killed by NYPD Office McClain in August 2012. At that moment, Eddie was riding away on his dirt bike, when officer McClain, who had already used his police vehicle to strike one dirt bike rider, makes a U-turn and crosses into oncoming traffic and strikes the back of Eddie's dirt bike with his vehicle. Clearly using his vehicle as a deadly weapon. Eddie died as a result of the very serious injuries sustained. A young man, who had taken care of his mother was gone. The distraught family has sought criminal and civil charges against Officer McClain and also Federal Civil Rights violations against the officer and the NYPD.

The story needs to be told over and over as police are using their badge and power as a deadly weapon when they see fit. Thankfully, like the tragedy in South Carolina, the events of Eddie Fernandez were caught on video surveillance.

The CCRB (Civilian Complaint Review Board) is still investigating Officer McClain and a final determination of his punishment is still pending.

As a father, lawyer and human being, I feel that families of Eddie Fernandez and those others who have been seriously injured as a result of the excessive force of the Police must rise up, join together, share their story and most importantly seek civil remedies which can hopefully change the police and practice of the police.

Story link.

The link to news story of video showing Eddie Fernandez killed by NYPD.

All Work, Snow, Ice, and Wetness

March 4, 2015

Appeals coming to fruition now were in the making long before 2015 arrived and the New York Appellate Courts have already decided thirty or so snow and ice cases this year. Many more will be coming. As we prepare for the next big storm that's coming, let's examine some general legal issues. For purposes of this blog, we will stick to the basics and not assess each and every fact in detail (quite unlike what this firm does when prosecuting real cases). We will also point out the major caveat that each and every case is unique. A case's existence and outcome will vary based on a multitude of factors that will not be fully explained in this blog.

Envision this. You are a young attorney who is preparing for trial. On your way to the office last Saturday morning, you slip on the marble floor of your large office building lobby, sustaining serious injuries. Unfortunately for your injuries, there is no case. A vestibule floor that was inherently slippery due to its smoothness is not an actionable defect. See e.g. Beceren v. Joan Realty, LLC, 2015 NY Slip Op 00324 (2nd Dept. 2015).

Next scenario. It's still Saturday. You receive a surprise flower delivery, but since your office is technically closed and the firm's secretary is not working, you go down to the lobby to get it. Unbeknownst to you, before you arrive on the scene, the delivery man spills water from the vase onto the floor. You slip on it, sustaining serious injuries. Here, you could establish fault of the flower delivery man and/or the building officials if you can show that they created the spill or had sufficient notice of the wet condition that caused the slip and reasonable time to clean and/or warn. See e.g. Weiss v. Gerard Owners Corp., 22 A.D.3d 406, 803 N.Y.S.2d 51 (1st Dept. 2005).

Next scenario. Same day. You take a taxicab home from the office because the 7 train is not running due to weekend construction, plus you have a large rolling bag with your heavy case file. The cab skids on ice and crashes into a pole, causing you serious injuries. The particular conditions at hand will be key to assessing fault of the taxi driver. The conditions include, but are not necessarily limited to the speed of the vehicle, the road conditions, the weather, and what the driver did (if anything) to try to avoid an accident. See e.g. Simpson v. Eastman, 300 A.D.2d 647, 753 N.Y.S.2d 104 (2nd Dept. 2002).

Next scenario. It's Sunday, late in the morning, and you feel a bit lax about your schedule today. You head to the gym for a long workout before starting the day's trial preparation at home. You are wearing Asics running shoes, which are great for fartleks, but not exactly built for inclement weather. You walk on nondescript wetness on the sidewalk then a metal grate on which you slip and fall, sustaining serious injuries. One thing you should know is the defense and/or court may want to examine your shoes. In Wright v. U.S., 866 F.Supp. 804 (SDNY 1994), the court noted that the injured person's shoes were not produced or examined by an expert who could evaluate locations, angles, and indentations to ascertain whether the accident happened as the injured person claimed. Additionally, the Wright court pointed out that the disappearance of the shoes could result in a negative inference against the plaintiff. Beyond that, your choice of shoes could subject you to an argument that you were at fault for your own accident. See e.g. Vallade v. Fischer, 2014 WL 5481881 (WDNY 2014) wherein the injured person was wearing oversized shoes [upon information and belief they were not clown shoes, just too big for him] but was caused to fall by an officer who was rushing him and not holding onto him appropriately. On the flip side though, if you are able to prove that your shoes were defective, there may be a better case. Speirs v. Dexter Shoe Co., 42 A.D.3d 494, 840 N.Y.S.2d 610 (2nd Dept. 2007).

Back to the main issues at hand with the next scenario. It's Monday evening. You meet with an expert at his midtown office. On your way out after the meeting you get an email that you should be at the office prepping for tomorrow's evidentiary hearing on another attorney's case. Feeling anxious about that and wanting to do your duty, you furiously rush home to review the file. In the midst of your manic panic, you slip on wetness that was tracked in by other visitors, sustaining serious injuries. What are some things you should consider in determining whether you have a legitimate case? "[A] defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable to undertake remedial action [citations omitted]." Beceren v. Joan Realty, LLC, 2015 NY Slip Op 00324 (2nd Dept. 2015). Additionally, astute defense counsel will ask you about your pace before the fall and try to lay blame on you. Although this technically constitutes blaming the victim, the law allows defense to take on the burden of proving comparative fault.

Next scenario. It's Tuesday evening. You leave the office at 7 PM wearing big black snow boots with rubber treads. It's precipitating. The sidewalk in front of your building is covered in an inch or two of snow and ice. Despite your appropriate footwear, you slip and fall, sustaining serious injuries. Unfortunately for your injuries, again no case. "Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, 'until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm [citations omitted]." Fernandez v. City of New York, 2015 NY Slip Op 01410 (2nd Dept. 2015). See also, Fisher v. Kasten, 2015 NY Slip Op 00491 (2nd Dept. 2015).

Next scenario. It's Wednesday. You head to the gym in the five o'clock hour to get there as soon as it opens, have enough time to work out, and make it to court at 9:30. It's dark and not many people are out and about yet. It snowed the prior day and stopped after 11 PM. You slip on a neighbor's snow and ice covered sidewalk, sustaining serious injuries. New York City Administrative Code § 16-123(a) says the owner, lessee, tenant, occupant, or other person having charge of the building or lot of ground in the city abutting any street where the sidewalk is paved had until 11 AM to clear the snow and ice from the sidewalk. Bi Fang Zhou v. 131 Chrystie St. Realty Corp., 2015 NY Slip Op 00825 (1st Dept. 2015).

The foregoing fact patterns, which are mostly fictional, are here for purposes of illustrating a few points of law which may or may not apply to other situations. Any real case should be considered in totality based on as much information as possible. In conclusion, be careful and clean up walking surfaces. The storm is coming.

Additional resource:

Illuminating Tort Reform; Is It Living Up to Its Promises

March 3, 2015

A recent study in the New England Journal of Medicine shines a spotlight on the failures of tort reform. Tort reform became a national trend in the mid-1980s when small businesses, doctors and other groups found themselves facing dramatic increases in insurance costs and limited policy availability. Proponents claimed that vast improvements would be seen in healthcare by restricting people's rights to sue and limiting the compensation they could obtain from wrongdoers. Claiming that doctors were aggressively ordering unnecessary and expensive procedures and tests only to avoid lawsuits, tort reform would supposedly influence doctors' behavior. Presumably, released from their burden of fear, doctors would reduce patient testing. However, research has proven otherwise. The study published in the New England Journal of Medicine explored the effectiveness of tort reform legislation in three states and found that in fact, tort reform did not impact doctor's behavior in reducing tests or procedures.

In the study, a panel of doctors examined the records of close to 4 million patient visits in over one thousand emergency rooms for fourteen years. They concluded that "legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates." The three states, Georgia, Texas, and South Carolina, had changed the definition of negligence from ordinary to gross negligence, which forced plaintiffs to prove that doctors consciously disregarded the need to exercise reasonable care in treating patients. Despite this reform, which made it nearly impossible to find providers negligent, the frequency and number of doctors' prescriptions for procedures and tests remained unaltered.Clearly, tort reform does not act, as promised, to modify the decisions of physicians when treating patients. As noted by the panel of physicians who conducted the study, "Our study addresses a very specific question: Do physicians change their behavior in response to changes in the legal environment? We provide strong evidence that, for emergency physicians at least, the answer is no. "

1) Daniel A. Waxman, M.D., Ph.D., The Effect of Malpractice Reform on Emergency Department Care, N Engl J Med; 371: 1518-1525 (October 16, 2014)

2) Daniel A. Waxman, M.D., Ph.D., N Engl J Med (January 8, 2015)


February 28, 2015

On February 27, 2015, at 4:00AM, a vehicle traveling in the wrong direction on Sprain Brook Parkway, between Route 100 B and the Heatherdell Road overpass in Greenburgh, Westchester County, violently collided head-on with a vehicle that was traveling the in the right direction on that roadway.

The impact was so heavy, that it propelled the vehicle over the highway's guardrail, pinning the driver inside his vehicle. The first responders who arrived at the scene had to use the jaws of life to cut the vehicle to reach the driver to administer medical attention. The accident resulted in the driver's death.

During their investigation, the police officers noticed a strong smell of alcohol coming from the driver of the vehicle that was traveling in the wrong direction, as well as drugs inside of his vehicle.

Several witnesses at the scene told the police officers the vehicle was traveling the wrong way for several miles on the roadway. One witness said she had to swerve out of the way of this vehicle, and if she had not, he would have collided with her vehicle. The police officers were already on their way after receipt of several phone calls at to the wrong way vehicle on the roadway at the time of the accident.

NYPD detective dead after car crash with wrong way driver


February 15, 2015

On February 11, 2015, a black-car driver, while approaching a stopped vehicle in front of him on the West Side Highway in Manhattan, rammed his car into the back of that vehicle, causing his car to veer to the left and smash into the metal posts that divide the road. The driver failed to reduce the speed of his car, failed to maintain a safe distance between the front of his car and the rear of the vehicle stopped in front of him and completely failed to depress the brakes at any time before the accident to attempt to stop his vehicle. The accident resulted in the death of the back seat passenger, Bob Simon, who was rushed that evening to the hospital with devastating head/neck injuries. Since the happening of the accident, it was revealed the driver had his license suspended nine times, the driver's dispatch received emails from other passengers complaining about his driving and the driver's superiors received complaints from his fellow co-workers who reported his erratic driving just days before the fatal accident. The black-car was equipped with an event data recorder that will be crucial to piece together the events leading up to the accident. The driver claims he was struck by an unknown vehicle that caused him to black out and lose control of the cab. However, witnesses at the scene of the accident, stated this is not so, but that the driver slammed on the gas pedal and accelerated his vehicle causing it to ram into the rear of the stopped vehicle in front of him. The driver never depressed on the brake pedal at any time before the crash. It is important to demand and send out immediate requests to preserve all event data recorders from any car accident--particularly so with livery cabs and/or medallion taxis which now come equipped with the devices.

Post: Co-worker warned limo boss about Bob Simon's "erratic" driver

New York City Sidewalk Accidents

February 13, 2015

Leav & Steinberg, LLP often receives calls from people who trip and fall on a city sidewalk and are injured. One would assume since it is a city sidewalk the city would be solely responsible for the maintenance and repair of the sidewalks. However this is not always the case.

In 2008 a law was passed by the NYC counsel shifting the responsibility to maintain and repair sidewalks to the building owner in most instances. The city is now only responsible to maintain and repair sidewalks adjacent to 1, 2 or 3 family, owner occupied houses. So if you fall on a sidewalk adjacent to a commercial building or high rise Apartment the building owners insurance company is responsible to compensate you for your injuries. However, it is very important to call Leav & Steinberg, LLP immediately after any trip and fall so we can do a complete investigation and protect your rights. If the city is involved a notice of claim must be presented within 90 days.

Leav & Steinberg, LLP has recovered millions of dollars on behalf of our clients who unfortunately fell and got injured after falling on a defective sidewalk. It is always best to call us immediately so we can protect your rights.


February 13, 2015

In the morning of February 13, 2015, at about 8:45AM, a 15-year old girl was walking across Grand Street when she was struck by a MTA bus. The girl was walking across the street with the pedestrian light in her favor within the crosswalk, when the Q59 attempted a left turn onto Grand Street, causing the bus to pin the girl under its left front wheel. The accident happened at or near southbound Union Avenue and Grand Street in Brooklyn, New York. The MTA bus driver was arrested, charged with violation of highway law and issued various appearance tickets after the accident. The MTA bus failed to yield the right of way to a pedestrian who was within the crosswalk, and walking across the street with the signal in her favor. The MTA bus should have waited before even attempting the left turn, until the crosswalk was free and clear of pedestrians. There were several witnesses to the accident. The girl suffered severe injuries to her leg, which was shattered from the impact with the bus. She was removed from the scene and transported to the emergency room of Bellevue Hospital.


Could Anything Have Been Done to Prevent the Tragic Metro-North Valhalla Railroad-Crossing Accident? An Unusual Third-Rail and Planned Warning Lights That Weren't Installed Are Being Considered

February 7, 2015

On the evening of Tuesday, February 3, 2015, a Metro North train collided with an SUV that was stopped on the tracks near Valhalla station. As a result of this tragic accident, the driver of the SUV and five passengers on the train were killed. There were also numerous injuries to other passengers.

While investigators haven't answered many questions about the crash. Their initial findings are shedding some light on what could have played a role in causing this accident.

Initially it appears that the driver of the SUV was in traffic that was inching toward the crossing, and when the warning lights came on and the crossing gates came down, the driver's car was within the gates. One of the gates hit the driver's vehicle, who subsequently got out of her vehicle to check for damage. Seemingly unhurried, the driver got back in the car and proceeded further onto the tracks.

Data recorders show the Metro-North Railroad train's engineer hit the emergency brakes and sounded the horn as the train approached the Valhalla crossing. The train was traveling 58 mph in a 60 mph zone. Flashing warning lights at the crossing illuminated 39 seconds before the crash, and the gates came down a few seconds later according to NTSB officials. That would leave about 30 seconds that the SUV was inside the gates. An investigation is still ongoing as to when the train's engineer hit the emergency brakes.

It has also come to the attention of certain officials that there could be more at play than human error at the time of the accident. State transportation officials planned five years ago to install more flashing warning lights at the train crossing, but inexplicably never did so.

In addition to safety upgrades implemented at the Valhalla crossing, in 2009, it was intended to add a third set of lights on the curving road leading up to it, to give drivers a few more seconds' notice of an approaching train. The approved budget of $128,000 was taken off the table last year.

Further, investigators had never seen a third-rail configuration resulting in such devastation. 400 feet of electrified third-rail snapped into 39-foot pieces and punched through the SUV and into the cabin of the commuter train. Now officials want to know whether the rail's unusual design explains why the crash was so uncommonly deadly.

The pieces went through the first car of the train "like daggers going into the heart of that chamber," Sen. Richard Blumenthal, D-Conn., said Friday after getting a look at the blackened, mangled wreckage.

"This has never happened before, and this is a rare configuration of a third rail. Do those two add up to the explanation for this terrible, terrible tragedy? Very possibly," Sen. Charles Schumer, D-N.Y., said, calling the design "a real concern."

This is not the first major problem Metro-North has had as of late. We have previously discussed the tragic derailment that occurred at the Spuyten Duyvil Station in December of 2013. Metro-North has also had other issues when two commuter trains smashed into each other during the evening rush hour in Connecticut in May of 2013. We have written generally about what to do if you are involved in an accident. Cases involving a municipality like Metro-North have special deadlines and prerequisites, some of which are so strict and inflexible that if they are not met, a claim may be forfeited forever. It is critical to seek legal counsel early on to protect a potential claim.


Motorists Are Duty Bound to Yield the Right of Way to Pedestrians or Bicyclists

February 7, 2015

Traffic Rules and Regulations of the City of New York §4-03(a)(1)(i) provides "...vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk..." Many times, motorists make left turns onto a roadway without looking and seeing whether there are approaching vehicles, bicyclists or pedestrians entering the intersection, causing serious accidents.

The Appellate Division, Second Department is often faced with cases involving pedestrians or bicyclists struck by motor vehicles. Recently, just this year, the Appellate Division decided France Herly Bien-Aime v. Clare, ---N.Y.S.2d---, 2015 NY Slip Op 00713 (2nd Dept., 1-28-2015) and Tsang v. New York City Transit Authority, ---N.Y.S.2d---, 2015 NY Slip Op 00875 (2nd Dept., 2-4-2015)

In France, supra, the plaintiff was a pedestrian struck by a vehicle driven by the defendant as she walked across Bedford Avenue, at its intersection with Parkside Avenue, in Brooklyn. The plaintiff testified she stopped at the intersection before stepping onto the street. During that time, she observed traffic and saw the pedestrian "WALK" signal in her favor before entering the street and crossing over Bedford Avenue within the marked crosswalk. She testified she was more than halfway across the street, closer to the other side and still within the crosswalk, when she was struck on the right side by the defendant's vehicle as it made a left turn into the intersection causing her to fall. The France Court found, based on plaintiff's testimony, that she entered the intersection after exercising due care. The defendant motorist testified he did not remember looking for any pedestrians crossing the street when he was stopped on Parkside Avenue before making the left turn onto Bedford Avenue. He also testified he did not see the plaintiff pedestrian at any time before the accident, until he saw her on top of his vehicle's hood, even though there was nothing obstructing his view of the roadway. The France Court granted plaintiff's motion for summary judgment on the issue of liability and found the defendant failed to raise a triable issue of fact as to whether the plaintiff pedestrian was comparatively at fault for the happening of the accident.

In Tsang, supra, the plaintiff was a pedestrian struck by a New York City Transit Authority bus as she walked across Bath Avenue at its intersection with 25th Avenue, in Brooklyn. The plaintiff presented evidence the bus driver failed to yield the right of way to them, while they were crossing the street within the crosswalk with the pedestrian crossing signal in their favor. The Tsang Court found the evidence showed the pedestrians looked both ways before entering the crosswalk and during the course of crossing the street, and that they were hit from behind by the bus when they were approximately three quarters of the way across the street. The Tsang Court granted plaintiffs' motion for summary judgment on the issue of liability and found the defendant failed to raise a triable issue of fact as to whether the plaintiffs were comparatively at fault in the happening of the accident.

Pedestrians and bicyclists face enormous dangers on the road. To ensure safety, it is important for pedestrians or bicyclists to look in all directions before proceeding through an intersection to ensure there are no approaching vehicles so close as to constitute a danger. Motorists are duty bound to see what with reasonable use of their senses can be seen on the roadway, particularly so when there are no obstructions in front of them.

If you or someone you love has suffered a serious injury in an automobile accident, you should contact the New York personal injury attorneys at Leav & Steinberg, LLP.

The Past, Present, and Future of Protecting Privates in Personal Injury Cases

January 15, 2015

One of a personal injury attorney's most important tasks is to protect clients. Two major parts of that involve ensuring clients have the best case possible under the law and protecting their privacy. Our last blog was about how injury attorneys can fortify a case with information from vehicle event data recorders. We linked to the New York law about the disclosure of the information recorded by event data records, such as speed, location, and brake performance. That type of activity recording raises privacy concerns, but that comes with the injury case territory.

Another privacy issue arises from a similar recording device, the license plate recorder. License plate recorders are cameras that may be mounted on things like police cars, tow trucks, traffic signs, and bridges and they have the potential to track each and every location an individual has driven. The ACLU has called for more legal restriction on the information obtained by these devices based on rights contained in the Fourth Amendment, in part because private companies are disclosing information with little to no oversight. Some states have already passed laws on the retention of the information collected from these cameras.

New recording devices raise new issues; as technology evolves, so does the law. But personal injury attorneys have been dealing with countless privacy issues since the start. Most commonly we deal with the Health Insurance Portability and Accountability Act, also known as HIPAA law. The law says injury attorneys have to turn over certain medical records and authorizations releasing medical records directly from healthcare providers to the attorneys whose job is to defend the case. A proper HIPAA authorization is always required to release medical records, but generally speaking only records related to the body parts injured in the accident need to be turned over. In Gumbs v. Flushing Town Center III, L.P., 1114 A.D.3d 573, 981 N.Y.S.2d 394 (1st Dept. 2014), the Appellate Division affirmed the decision of the Honorable Laura Douglas to protect the plaintiff from providing authorizations to the defendants relating to some of his own medical records. His case was related to injuries sustained to his shoulder and ankle. The defendants were seeking records from his cardiologist and primary care physician. The defendants claimed the records were related to the plaintiff's ability to work and his life expectancy.

New HIPAA-related issues were created by electronic filing. Although putting bulky legal files into electronic form has its benefits, it also allows anyone who is capable of setting up an account to have easy access to a complete stranger's medical records. The state court rules and the federal court rules both require redaction of the month and date of an individual's date of birth and all but four digits of a social security number, among other things.

Another privacy issue, though one which has been litigated in relative detail at this stage, is disclosure of family members' records in toxic tort cases, such as those involving lead paint. Some common demands made by defense counsel when faced with claims of an infant who was exposed to lead paint in their apartment are for the mother's medical, pharmaceutical, and academic records. Another common demand is for the medical records of the siblings. In Vazquez v. New York City Hous. Auth., 79 A.D.3d 623, 914 N.Y.S.2d 127 (1st Dept. 2010), a young individual was exposed to a lead paint condition which exacerbated his pervasive developmental disorder. The defendant wanted to see the medical and academic records of the siblings, who were not involved in the lawsuit. The courts found that there was nothing more than speculation to support the notion that the siblings' mental condition had any bearing on the plaintiff's condition and denied the request.

The common thread among these issues is that privacy, confidentiality, and privilege are still being protected while technology is helping us do what we need to do in a different way. It will be interesting to see how, as technology evolves, the law draws a line to balance competing interests.


The Legal Examiner, Is Privacy Jeopardized by LPRs? by Steven J. Klearman, 01.08.15

ACLU, You Are Being Tracked: How License Plate Readers Are Being Used To Record Americans' Movements


January 8, 2015

You get a new case call to your office. The prospective client tells you that they were traveling on a road with the right of way when a car traveling in the opposite direction seemed to speed up and then made a sudden left turn in front of them. Prior to turning the other car seemed so far away. You get the police report and the offending vehicle says it was fully stopped and when safe to enter began its turn when the collision occurred. Sure the turning car should yield to your client. But you want the smoking gun, the evidence to prove they are being less than truthful.

That time has come.

In 2012 Congress passed Senate Bill 1813, Section 31406 which mandates that all cars sold in the United States starting in 2015 be equipped with Event Data Recorders.
The EDR as it is called will capable of recording vehicle speed, engine speed (RPM). Better yet they record data for usually 5 seconds prior to an event.

Such evidence if properly preserved and studied can prove with certainty that the offending car turning left had not stopped as they claimed but rather had tried to speed up and rush through the turn prior to the light changing and failing to yield the right of way to your client. This can help you get your client the full and complete damages that they are entitled to.

The firm of Leav & Steinberg, LLP has been representing car accident victims who suffer serious injuries. Just last year Daniel T. Leav went to trial on a matter of a young woman who was seriously injured in an accident involving the same facts as above. Through our investigation and use of technology we were able to obtain a $750,000.00 award for the client.

See also:
New York Vehicle and Traffic Code § 416-b

Legal Questions Raised by the Passing of Joan Rivers

September 8, 2014

The mourning family of Joan Rivers, who died on Thursday at 81-years old, bid her adieu on Saturday at a New Jersey crematorium. Her funeral service, which featured celebrities such as Hugh Jackman and Audra McDonald, was held on Sunday. Though she is gone, her legacy is not.

The sudden passing of Ms. Rivers raises legal questions that cannot be answered until the cause and manner of her death are conclusively determined. An investigation is underway on why a throat procedure that was supposed to be a routine and elective surgery resulted in cardiac and respiratory arrest then death. Medical malpractice has not been ruled out by the state health department. The medical examiner's autopsy was inconclusive thus far, but additional testing is in the making.

Though Ms. Rivers was advanced in age, her physical and mental health defied expectations. As Edward Steinberg of Leav & Steinberg, LLP pointed out to the Daily News: "Normally, an 81-year-old widow with grown children is not expected to be working. However, she was still a very big earner and in otherwise good health. There could be millions at stake." Negligence on the part of the Yorkville Endoscopy Center would have to be established. As a part of that, there are questions about the drugs administered by the anesthesiologist, the length of time Ms. Rivers' brain was deprived of oxygen before her heart was restarted, and the reaction time of clinic staff.

Millions could be at stake if Melissa Rivers sues doctors for negligence in Joan Rivers' death: lawyer, Barbara Ross,, 09.06.2014.

Joan Rivers' daughter Melissa says goodbye ahead of journey to crematorium, Joe Dziemianowicz, Erik Badia, Larry McShane,, 09.06.2014.

Joan Rivers: How a minor elective surgery could end in death, Jen Christensen,, 09.07.2014.