New York Accident Lawyer Blog

The court system already was, by many accounts, backlogged, slow, and overburdened. In March, the governor and legislature cut the judiciary's budget by $170 million. All aspects of the judicial process will likely be affected by the cuts.

Now most courtrooms shut down a half hour earlier every day. Effective April 18, 2011, some small claims court night sessions are reduced from four nights to one night per week. Weekend arraignment court in Queens is open for nine and a half hours per day now instead of sixteen (the law requires suspects to be brought before a judge within twenty-four hours). Hundreds of court employees, including clerks and court lawyers, were laid off. Even the money for judges' law books was cut.

The number of potential jurors for all kinds of cases was pared down. Deliberating jurors no longer receive free lunch. Jurors are no longer guarded by court officers during lunch hour. They are required to exit the court building to get lunch and required to wait in the line to go through security when they return to serve.

Personal injury attorneys are faced with the decision of whether to cut investigation and informal negotiation short and start suit earlier. Once in suit, an attractive option is to immediately request a preliminary conference. Several court officials have publicly questioned the cost effectiveness of the changes and whether the system will grind to a complete halt in coming months.

Resources: The New York Times, Cuts Could Stall Sluggish Courts at Every Turn, William Glaberson, 05.15.2011.

By Kathleen Beatty

It is impossible to deny that e-filing is becoming exponentially more prevalent in the lives of New York tort attorneys. Westchester County is a mandatory e-filing court for tort cases as of March 1, 2011 and some judges are calling for it in all city courts. For those who have not delved in, here are a few things to consider about the New York State e-filing system.

Payment of court fees can be done by credit card and the system gives prompt updates via e-mail. That means not having to make the trip to court and not waiting for or paying for service to bring documents to and from court.

It can be a bit worrisome to fill out a form when you do not know what comes next. There is a training system to practice on before you go "live" with your e-filing. It is supposed to look just like the real system to allow you to get accumstomed to what to expect before you make a mistake. There is also a detailed user manual with pictures of portions of the website at different stages of filing.

Service is deemed complete when the e-mail confirmation of a filing is sent to the user who submitted the filing as well as the other users who have consented to e-filing in the case. An affidavit of service does not need to be filed.

Documents can be viewed electronically. If you are at your office, you do not have to find and rifle through a voluminous file. If you are out of your office but have an electronic device such as an ipad, you can view documents within seconds.

In many cases, you do not have to file or serve a hard copy. This saves time, money, ink, and paper.

Documents can be filed when the courts are closed, in fact, they can be filed at any time of the day or night. Some court rules provide that a document is considered to have been timely filed if it was filed by midnight of the due date.

It takes time to learn all of the rules of e-filing, just like anything else, but e-filing offers benefits that the traditional method cannot compete with. It is not perfect, of course, so there are plenty of rules for when the system fails. Entries on the federal system and errors in the state system to follow.

Resources: New York State Courts Website

Thomson Reuters News and Insight, Judge calls for legislation to mandate e-filing in NY courts, Jennifer Golson, 06.07.2011.

By Kathleen E. Beatty

Imagine this horrible scenario:

You are operating your own car in New York and are hit by a car that runs a red light or disregards a stop sign. You have severe permanent injuries including a fracture to your leg which requires surgical intervention. The car that hits you carries, the New York minimum, $25,000 in liability coverage. Your injuries are so severe that you miss work and will never be able to use your leg the same again. You look at your own auto policy and realize that you had been smart and purchased an insurance policy that would precisely fix this miscarriage of justice. You have paid your insurance company, GEICO, additional premium year after year in order to carry liability and Underinsurance Coverage of $100,000.00. You retain counsel who goes and fights for the tortfeasor's insurance to pay you. They do after protracted litigation. The next step, you assume, getting GEICO, the company you have paid premiums to for years for this added protection, will be resolved quickly and they will compensate you with a payment of the full $75,000.00. It would be $75,000.00 because, under the present law of New York you get to recover the difference between your Underinsurance coverage and the tortfeasor's liability policy hence $100,000- 25,000.00= $75,000.00.

Yet, GEICO, decides that even though they have no legal defense to your claim, and even though your injuries are both serious and permanent; that you don't deserve the additional $75,000.00. Why??? JUST BECAUSE WE, AT GEICO, LIKE TO COLLECT YOUR PREMIUM'S AND NOT PAY YOU EVEN THOUGH WE ARE LEGALLY OBLIGATED TO DO SO.

Sadly, this happens every day for many people of New York. People who are driving around believing that they have purchased insurance, that when needed, will be there for them. Whether it's Allstate, State Farm, or other's; New York Law has no "bad faith" which would hold your own insurance companies liable for such terrible business practices.

They can simply refuse to pay, require you to file for arbitration or to litigate the matter taking years and just hope that the fact finder will determine you should get less. Even if the arbitrator/mediator determines you get more, you are still limited to the limits of your insurance with no penalty to the carrier that has collected and held your money and refused to compensate you for years and years.

At Leav & Steinberg, LLP, we have fought for our clients and have successfully arbitrated and litigated many cases against insurance companies in order to ensure that our clients' receive a full and complete recovery, even if it means fighting for every last dollar that they are legally entitled to.

This is the second part of a series of entries. The first part can be accessed here

What if you are not NFL material but become injured while playing sports and want to recover money for your injuries? In most cases there will likely be no issue with fraudulent concealment, workers' compensation, and collective bargaining. Aside from that, the rules are the same. The assumption of the risk doctrine applies to a range of physical activities from children playing catch to little league teams, school athletic activities, and professional sports activities. In New York, the assumption of the risk doctrine has been applied to virtually every sport, including baseball, softball, football, basketball, tennis, soccer, hockey, golf, skiing, horse racing, track and field events, wrestling, and the martial arts.

The determinative queries on liability are whether the risk that resulted in the injury was the type inherently associated with the sport in question and whether the risk was obvious to the participant but he or she nevertheless opted to assume the risk by participating. The participant's experience with the sport in question will also come into play, but some risks have been found by New York Courts to be obvious to even the most novice of players. The defendant's duty is limited to not concealing or increasing the inherent and assumed risks and not engaging in reckless or intentional conduct to subject participants to risks. "Participation" and "sports" have been loosely interpreted by the courts and applied to people of all ages. Thus, one who is a mere spectator may be subject to the rules detailed above.

For purposes of illustration, let's use golf. In one case last December, the Appellate Division of the Second Department determined that a plaintiff who slipped and fell when he descended a staircase leading from the cart path to the eleventh tee box on a golf course assumed a risk that was inherently associated with golf. His case was dismissed. Similarly, the New York Court of Appeals dismissed the case of a doctor who was blinded in one eye by a fellow golfer's ball while playing on a nine-hole Long Island course in October 2002. The court found that the fellow golfer's failure to yell in advance of his errant shot was not intentional or reckless conduct and that "being hit without warning by a 'shanked' shot while one searches for one's own ball -- reflects a commonly appreciated risk of golf ".

On the other hand, another golfer sued when she fell on a pile of approximately thirty golf balls that were gathered together and concealed by grass clippings and leaves in Rockland County, New York. The court denied the defendant's summary judgment motion, finding that it failed to show that tripping on a gathered and accumulated cluster of golf balls was an inherent risk of the game of golf and not a unique and dangerous condition-an aberration-beyond the usual dangers that are inherent in the sport. As can be seen from these three golf examples, whether a lawsuit will be successful for sports related injuries is largely sui generis, or dependent on the facts of each case.

By Kathleen E. Beatty

This entry addresses general matters and should not be relied on by readers or considered legal advice.

Football season is winding down, but the National Football League should soon be winding up for two class action lawsuits that are purportedly being formulated against it. Continued and increasingly in depth research on football related brain injuries has spawned potential legal claims that have the ability to wreak havoc on the now over ninety year old organization.

Seventeen years ago, in 1994, the NFL medical committee on concussions was formed. In the last several years, report after report has surfaced detailing clinical research findings of severe and permanent cognitive harm associated with playing football. But these reports were not from the NFL. Rather, the NFL has put out conflicting statements on the subject and only recently reported similar findings to what reputable researchers have been warning about for years. In 2007 the NFL circulated a pamphlet to players stating, in essence, that a few concussions would not result in permanent brain injury, so long as proper medical treatment was received. Last summer, however, the NFL finally circulated a poster, meant to be hung in locker rooms, revealing that concussions may not be so benign after all (click the image to the right to make larger). Indeed, various studies have found that early dementia, Alzheimer's disease, Lou Gehrig's disease, depression, chronic traumatic encephalopathy, and memory problems, among other things, are all associated with head injury.

Some recent players of the league are expected to allege that the NFL was aware of the long term risks of playing football and chose to suppress them, or that the NFL reasonably should have known of the long term risks. The root of these claims is that the NFL's failure to disclose what they knew made an already dangerous sport even more dangerous and that the NFL made no attempt to lessen the danger. Such claims could result in awards to injured players for economic loss, pain and suffering, and in the case of a fraudulent concealment claim, punitive damages. Wives, and in some states, children of the injured players, could also recover monetary damages if the injured player's lawsuit is successful.

Continue reading "National Football League and Sports in New York, Part 1" »

Last week I attended the wake of one of New York's foremost mediators, Michael McAllister. Having been a private mediator with JAMS for the last six years, he had developed a reputation among all litigators in the negligence field as fair, honest, hardworking and a true gentleman. As I watched attorney after attorney and even insurance adjusters pass through the funeral home, I was reminded of the first time I had ever heard of the concept of mediation.

Almost fifteen years ago, I was asked, as a law student working at a prominent New York personal injury firm, to prepare a case for mediation. Having just completed three years of law school, I was kind of surprised that I had not heard of mediation. Furthermore, having worked for over ten years at this firm as a high school student, college student and law student, the concept of trying to settle the case using a private mediation service was something unheard of. We were weeks away from trial and it seemed like everything had been going as planned.

I walked into the managing partner's office and asked, what is this private mediation and why are we trying this since we are so close to trial? The answers I was given, though strange at first, are so on point and correct in today's litigation trial strategy.

Private mediation is essentially a mutual agreement by all sides to retain the services of a retired judge or former court attorney so that each side can present the strengths and weaknesses of their case in a forum that allows for open communication and dialogue. The goal is to begin settlement discussions and resolve the matter to the benefit of all parties, more often than not.

Continue reading "Mediation Increases the Success of Injured Clients in New York " »

Human tendency is to want immediately everything that can be obtained immediately. We like one hour photo-labs, microwave ovens, overnight mail, same day dry cleaning, and fast food. Well, as proof that the wheels of justice don't always turn slowly, our beloved court system has developed the summary jury trial also referred to as the "SJT." An SJT is an alternative dispute resolution technique that has been around for years but is now gaining increasing use around the country and certainly in New York. It is a break from the regular trial system and can afford a litigant several benefits.

The particular technique of which I have had personal involvement has been the "Binding SJT" in which the parties try the case to a binding verdict rather than simply engaging in a non binding mock trial. The binding SJT's are generally one or two days in length. The parties stipulate as a prerequisite that each litigant will be bound by the jury's verdict. The right to move to set aside the verdict may be waived or strictly limited to instances where, for example, fraud was used to obtain the verdict, or there is an error of law that occurred during the trial, or a miscalculation of figures occurred.

The first day of the trial is generally used as an evidentiary hearing for purposes of determining which documents and witnesses the jury will learn about and/or hear from during then trial. Related medical treatment records as well as the plaintiff's and defendant's expert medical reports are usually stipulated to be admissible. This generally saves money for the both the plaintiffs and defendants. Day two consists of jury selection and the trial. The presentation of evidence and arguments made by the attorneys are governed by strictly enforced time limits to ensure that the entire case is presented and the jury gets the case the same day for deliberation.

Continue reading "Summary Jury Trials: Justice or Just Fast?" »

In September 2010, Nebraska State created an iPhone application that allows realtime searching of its court dockets by date, time, and location. Although it appears the app has its share of kinks to work out, such a tool could be a useful aid to attorneys in all states who need to obtain reliable information when they are out of the office. With today's onslaught of mobile technologies, such as iPads, tablets, and compact laptops, it seems natural that attorneys would be able to work anywhere that they can get a signal. Yet, Nebraska seems to be the only state to have such an app available. In New York, some personal injury attorneys could use a state generated court app, since some docket searching sites, like e-law, do not work on all mobile phones.

Notwithstanding all of the virtues, it bears reminding that technology can do some harm too. In the same month the Nebraska court app was authorized, Judge Jeffrey Arlen Spinner of the Suffolk County Supreme Court ruled that a woman who claimed that injuries resulted in the loss of enjoyment of her life had to turn over information from her Myspace and Facebook accounts in her personal injury suit. Not only did she want to keep the information private for personal reasons, but the disclosure of the information could have undermined her claim of having sustained severe injuries. Nevertheless, maintaining and posting to a Facebook or Myspace account does not preclude an injured person from succesfully bringing a personal injury action or always mandate that an injured party turn over private information from social networking accounts. For more information, contact an experienced New York personal injury attorney.

Leav & Steinberg, LLP predominantly practices in the five counties that comprise the City of New York: Bronx, Kings, New York, Richmond, and Queens. However, we also practice in surrounding areas, such as Nassau, Suffolk, and Westchester. We currently have offices in downtown Manhattan and Bronx and maintain a large network of experienced accident attorneys who practice in the geographic areas that fall outside of our proximity.

Resources:

American Bar Association Journal, January 2011, "iCourt" by Ed Finkel.

Kathleen Romano v. Steelcase Inc. and Educational & Institutional Cooperative Services Inc.

By Kathleen E. Beatty

Biomechanics is the study of how physical forces affect and influence living organisms. It is said to combine mathematics, physics, chemistry and biology. Experts in this field have served in personal injury cases in a variety of factual scenarios including trips and falls and most predominantly now in motor vehicle cases. This entry was prompted by a recent article published in the New York State Bar Association Journal November/December 2010 edition titled The Rise of Biomechanical Experts at Trial which discusses and promotes the increase in the use of biomechanical engineers by defense attorneys in defending automobile cases.

Although the article we reference highlights the trend of retaining experts of this type specifically at the time of an impending jury trial, we note that the warning signs of the involvement of such experts are appearing earlier in the litigation. Within the last 8 months I received pre-suit correspondence from adjusters claiming that the soft tissue injuries claimed by my client were not causally related to the subject low impact collision "from a biomechanical standpoint." Some plaintiff's attorneys have reported that they have received reports from defendant's biomechanical engineer as exhibits in summary judgment motions on the serious injury threshold question served upon completion of depositions. The purpose of the expert disclosures in the motions and trial testimony by the expert is the same. The expert is retained to argue that the injury producing mechanisms were not present in the accident. That is to say, the forces exerted upon the injured body parts were not of a sufficient magnitude to cause the injury alleged by the plaintiff based upon the expert's knowledge of human anatomy and a mathematical assessment of the forces involved in the collision.

For the injured plaintiff and her attorney this is just one more obstacle to consider in the quest for justice. It would seem that there would be no rise in the use of biomechanical engineers if the use of same did not create a benefit to defense counsel and yet it begs the question: Is it the expert or is it the case?

Continue reading "Preparing For Trial: Bio Mechanical Breakdown" »