New York Personal Injury Attorneys Blog

In Vasquez v. County of Nassau, 2012 NY Slip Op 00508 decided on January 24, 2012 The New York Appellate Division 2d Department affirmed a jury verdict of $3,025,000.00. The case was tried by our partner Howard Hershenhorn in Nassau County Supreme Court. Our partners, Rhonda Kay and Richard Steigman handled the appeal.

On Oct. 18, 2003, plaintiff's decedent Maria Araujo, 34, was crossing Washington Street, at the corner of Jackson Street, in Hempstead. She was carrying her 3-year-old son, plaintiff Fernando Araujo. Glory Upke was driving a sport utility vehicle north on Washington Street, and a public bus, driven by William Malloy, was traveling on the westbound side of Jackson Street. The bus struck the right rear quarter panel of Upke's vehicle. Upke's vehicle spun in a counterclockwise direction and struck and killed Maria Araujo. Fernando was also hurt. The Appellate Division set forth the facts of the accident as follows;

“This case stems from an accident involving multiple vehicles and two pedestrians at the intersection of Jackson Street and Washington Street in Hempstead, which was governed by traffic light signals. The decedent was carrying the infant plaintiff, her three-year-old disabled son with Down Syndrome. As the decedent crossed Jackson Street on the north side of the intersection in the crosswalk, she was struck by a vehicle operated by the defendant Glory E. Upke, after that vehicle was struck by a bus operated by the defendant William Malloy and owned by the defendant Metropolitan Suburban Bus Authority. The force of the impact propelled the decedent into the air and caused her to let go of the infant plaintiff. Prior to the accident, the bus was traveling in a westerly direction on Jackson Street, and the Upke vehicle was traveling in a northerly direction on Washington Street.

There was conflicting evidence adduced at trial as to the speed at which the vehicles were moving as they approached the intersection and about which driver had the right of way. Upke testified that she had a yellow light as she traveled north through the intersection, but several witnesses testified that Malloy, the bus driver, had a green light as he traveled west through the intersection. In any event, Upke did not see the bus until it hit her vehicle in the intersection. Although there was conflicting evidence about whether Malloy looked for other vehicles or pedestrians before proceeding through the intersection, as he approached the intersection, he could see substantially more than 40 feet to his left, which was the direction from which Upke's vehicle was traveling. Nonetheless, he did not see her vehicle until a "split second" before the bus collided with Upke's vehicle. The jury found that the defendants County of Nassau, Metropolitan Suburban Bus Authority, and Malloy (hereinafter collectively the municipal defendants) were 35% at fault in the happening of the accident, and Upke was 65% at fault in the happening of the accident.”

The plaintiff alleged that Maria Araujo sustained severe head injuries at the accident scene and died. The estate sought recovery of damages for her past pain and suffering in the approximately three seconds from when she was struck and when she died. The plaintiffs' expert economist opined that Ms. Araujo earned approximately $5,000 to $6,000 per year as a house cleaner and that Fernando suffered a fractured right tibia and received treatment consisting of casting and immobilization, which lasted only a few weeks, mostly because of his age.

Fernando has Down syndrome and could only speak a few words. He required substantial care, which at the time was being provided by his older brother, who was a senior in high school and expected to go to college, and thus would not be able to provide assistance.

Felix Vasquez sought recovery of damages for his son's past loss of financial support, past loss of household services, past parental care and guidance, future loss of financial support, future loss of household services, and future loss of parental care and guidance. He also sought recovery of damages for his loss of services. The Court affirmed the verdict in its entirety including the award of $100,000 for the decedent's conscious past pain and suffering, $40,000 for past loss of financial support, $200,000 for future loss of financial support, $140,000 for past loss of household services, $1,800,000 for future loss of household services, $100,000 for past loss of parental care and guidance, and $600,000 for future loss of parental care and guidance.

Ben B. Rubinowitz Gair Gair Conason Steigman Mackauf Bloom & Rubinowitz

Our partner, Ben Rubinowitz, achieved one of the highest awards for an 83 year old man who suffered a fractured leg as a result of being struck by a car: $1,120,000.00. The injured man was an 83 year old pedestrian who was standing next to his car when struck. The man, who had suffered from heart problems and cancer prior to the accident, underwent surgery for a fractured femur. As a result of the accident he now has difficulty walking. "I am extremely pleased with this result" said Rubinowitz who explained that "often times insurance companies feel that because an injured individual happens to be in his 80's or is elderly that the case has little or no value. That type of ugly age discrimination is simply not tolerated by our firm. If we agree to take a case it makes no difference to us if the injured person is 8 or 80. We give the same effort regardless of age." Perhaps this is why the lawyers at Gair Gair Conason Steigman Mackauf Bloom and Rubinowitz have achieved the best results for victims of car accidents, construction accidents and medical malpractice cases over their 90 plus year history. "Simply put" said Rubinowitz "we have the talent and we have the resources -- and we do one other thing -- we give 100 percent effort at all times to ensure the best possible results for our clients."

http://www.youtube.com/watch?v=QHTQ8y3c9AM
One of the best New York personal injury trial lawyers, Ben Rubinowitz, a partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz , demonstrates the importance of a well prepared opening statement. The presentation was given to lawyers at a Trial Law seminar in 2009. The case involved a pedestrian who was struck by a car. The driver of the car claimed, in a misleading and improper manner, that the pedestrian was fully at fault for the happening of the accident. The medical proof told a very different story than the less than truthful statement of the driver.

In this new program, an outstanding faculty, including partners of many of New York State’s leading plaintiff and defendant personal injury law firms, will focus on specific types of cases frequently encountered in motor vehicle litigation. Open to both new and experienced attorneys, this practice-based program will present the “nuts & bolts” of handling these types of cases from the perspective of both the plaintiff and the defendant.

Topics Include: 

• Truck and Bus Accidents
• Motorcycle and Bike Accidents
• Highway/Roadway Defect Cases
• Dram Shop Litigation-Proving and Disproving Liability
• Summary Judgment for the Plaintiff- Not Just in Rear-end Collision Cases
• Summary Judgment for the Defendant
• Ethical Considerations in Motor Vehicle Litigation

Program Co-Chairs:
Christopher Sallay, Partner, Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz
Robert Glick, Managing Partner, Brand, Glick & Brand, P.C. 

4 Statewide Locations-- Click on one of the links below for complete program information and to register online.  Program time for all locations: 9:00 a.m. - 4:30 p.m.

	Tuesday, November 8, 2011 Long Island www.nysba.org/MVALongIsland	Wednesday, November 9, 2011 Albany www.nysba.org/MVAAlbany
	Thursday, November 10, 2011 New York City  www.nysba.org/MVANewYork	Wednesday, November 16, 2011 Syracuse www.nysba.org/MVASyracuse

This year's program will focus on specific types of cases frequently encountered in motor vehicle litigation. Our Partner, Christopher L. Sallay is the Program Co-Chair of this New York State Bar Association program and will be speaking at the New York and Long Island program. Our partner, Howard S. Hershenhorn will also be speaking at the program. Below are Links to the locations, dates and description of the Program.

There are four Statewide Locations-- Click on one of the links below for complete program information and to register online. Program time for all locations: 9:00 a.m. – 4:30 p.m.

Tuesday, November 8, 2011 Long Island www.nysba.org/MVALongIsland	Wednesday, November 9, 2011 Albany www.nysba.org/MVAAlbany
Thursday, November 10, 2011 New York City www.nysba.org/MVANewYork	Wednesday, November 16, 2011 Syracuse www.nysba.org/MVASyracuse

On Tuesday, November 1, 2011, Cardozo Law School will hold a seminar on Opening Statements for more than 100 students as a prerequisite to its Intensive Trial Advocacy Program (ITAP). Featured Speakers at the lecture include Ben Rubinowitz, and Judith Livingston. Both Rubinowitz and Livingston have been recognized as two of the most successful Trial Lawyers in New York and both are members of the Inner Circle of Advocates -- a group of the top 100 Trial Attorneys in the Country. Each of these speakers has obtained multiple million dollar verdicts in areas including Medical Malpractice claims, Automobile Accident cases, Construction Accident cases, Products Liability claims and Civil Rights violations. In the past both Rubinowitz and Livingston have been asked to give demonstrations of their successful Trial Techniques at the annual Continuing Legal Education program "Masters of Trial Law Seminar." Rubinowitz stated "It is an honor to be asked to participate in this program. I am delighted that Judy Livingston will be joining me in this event."

Learn more about ITAP:

A Mobile jury awarded a $40 million wrongful death judgment to the parents of a Mobile County teenager who was killed in a 2004 car accident. The judgment was against Kia Motors and the makers of a seatbelt buckle. Tiffany Stabler was ejected from the vehicle after she struck a sign and the car overturned. Witnesses said that she was wearing her seatbelt, while Kia maintained that she was not.

Stabler was driving a 1999 Kia Sephia that her father had bought for her 16th birthday. Kia officials knew that seatbelts in the 1999 model vehicles were faulty, according to plaintiff testimony, but did not include them in a recall of 1995-1998 vehicles.

Read More: Mobile County jury slaps Kia with $40 million wrongful death verdict

Fatal car accident in Fort Greene after a driver that police say was drunk hit a women's car early Sunday.

New York Litigation Against Toyota Begins

Crash in upstate NY leaves Finger Lakes chef dead

4 Die and 2 Are Injured as Motor Boat Crashes in Hudson Upstate

New York man pleads guilty in crash death

In Brannan v Korn, Second Department, May 24, 2011, an action to recover damages for personal injuries, The Court granted defendants' motion for summary judgment dismissing the complaint based on the emergency doctrine. The plaintiff, while attempting to walk across Ring Road, in Garden City, New York, was struck by a hit and run driver and, as a result of the impact, was propelled onto a second vehicle operated by the defendant Joseph D. Korn. The Court held that while "... the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues "may in appropriate circumstances be determined as a matter of law" (Vitale v Levine, 44 AD3d 935)..." The Court went on to hold that the defendants were entitiled to judgment as a matter of law.

"The evidence submitted by the respondents in support of their motion for summary judgment established that Korn was faced with an emergency situation, not of his own making, leaving him with seconds to react and virtually no opportunity to avoid a collision (see Lonergan v Almo, 74 AD3d 902). Under these circumstances, the respondents established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff's speculative and conclusory assertions failed to raise a triable issue of fact as to whether Korn's reaction to the emergency was unreasonable, or whether any negligence on his part proximately contributed to bringing about the emergency or the accident."

One must wonder if plaintiff submitted a detailed affidavit of an accident reconstruction expert. In any auto accident case in which the emergency defense is applicable the plaintiff's attorney must retain an experienced accident reconstruction expert, not a "generic" expert who will do a detailed site scene analysis, review all testimony, police reports, etc. and be able to state, not speculate, that to a reasonable degree of professional certainty, the defendant driver had time to react and avoid the accident. The affidavit must explain in minute detail the foundation for the expert's opinion that the defendant had sufficient time to avoid the accident.

As we stated several years ago in a prior post, "NEW YORK AUTOMOBILE ACCIDENTS, THE EMERGENCY DOCTRINE" "The lesson to be learned is that in a New York Automobile Accident in which the Emergency Doctrine may be implicated GET AN EXPERT. A qualified accident reconstruction expert is able, using long accepted methodology, to analyze a driver's perception of a situation as a hazard, to analyze the driver's decision as to how to avoid the hazard and to analyze the driver's performance as to the actions undertaken to avoid the hazard. The qualified expert will be able to give opinions on the driver's reaction time from perception of the hazard and whether the driver reacted in a timely manner in order to avoid the hazard."

In Anastasi v. Terio, decided by The New York Appellate Division, Second Department on May 17, 2011, reversed the granting of Summary Judgment for defendants in this action for wrongful death.

The case involved a car accident that took place at an intersection in Queens, New York City. The traffic proceeding in the same direction as the plaintiff's vehicle was controlled by a stop sign, while the traffic proceeding in the same direction as the defendants' vehicle was not controlled by any traffic device. The plaintiff's decedent was sitting in the back seat of the automobile operated by the plaintiff. In reversing The Court held;

"Contrary to the Supreme Court's determination, the defendants failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). "There can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d 427, 427). Although a stop sign governed the intersection for traffic proceeding in the direction that the plaintiff's vehicle traveled, triable issues of fact exist as to whether the defendant driver was free from negligence and, if not, whether that negligence was a proximate cause of the accident (see Myles v Blain, 81 AD3d 798; Kim v Acosta, 72 AD3d 648; Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Cox v Nunez, 23 AD3d 427). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint."

Our partner Ben Rubinowitz successfully resolved a claim against the New York City Transit Authority for $4 million. At the time of the accident, a young woman was crossing a New York City street when she was struck by a bus driven by a N.Y.C.T.A. employee. The defense claimed the accident was her fault asserting that she had not crossed in the crosswalk and that she failed to pay attention to the traffic conditions. The injured victim asserted that the bus driver failed to keep a reasonable and proper lookout failing to pay proper attention and in failing to avoid the pedestrian. As a result of the impact the woman suffered a degloving injury to her knee and pelvic fractures.

Rubinowitz, who recently won a $27.5 million verdict for another client struck by a bus said: “This successful result was part of a team effort. Howard Hershenhorn, Diana Carnemolla and Peter Saghir also worked timelessly for our client.” Rubinowitz continued: “We have the ability to secure the very best results for our clients because of two main reasons: We work harder and put in more effort than any other law firm.”

Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz has had remarkable results for its clients in car accident, construction, premises liability, civil rights and medical malpractice cases. Ten of its lawyers have been listed in Best Lawyers and Super Lawyers.

By Ernest R. Steigman

The Court of Appeals on February 17, 2011, in a 4 to 3 decision has just written an extremely interesting and important opinion (Kabir v. County of Monroe) regarding New York Vehicle & Traffic Law, Section 1104(e).

The Court held that the reckless disregard standard of care in V & T Law 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by V & T Law 1104(b). Any other injury causing conduct of such a driver is now governed by the principles of ordinary negligence.

In Kabir the police officer was responding to a burglary alarm radio call. He did not activate his emergency lights or siren and was traveling well below the speed limits when he rear ended a vehicle in front of him which had stopped for a red light and was just beginning to slowly move forward. The officer admitted he had taken his eyes off the road for 2 to 3 seconds to look at the vehicle’s display panel.

The Court held that the reckless disregard standard did not apply and that ordinary negligence standard applied. In doing so, The Court of Appeals affirmed the Appellate Division decision (4th Dept.) (3-2 decision). The decision of the Court of Appeals is novel and far reaching. If the accident is not caused by the driver’s conduct spelled out in 1104(b), the reckless disregard standard will not be applied.


1104(b) permits four types of unlawful conduct. These are basically:

1. Stopping, standing or parking privileges;

2. Disobeying red lights or stop signs;

3. Speeding;

4. Disregarding regulations governing or direction of movement or turning.

It now behooves plaintiff’s to examine the precise conduct that caused the accident and attempt to argue that 1104(e) does not apply.

For example, suppose the officer in Kabir was exceeding the speed limit but the accident was caused by the officer’s taking his eyes off the road for 2 to 3 seconds to look at the display panel. Can plaintiff now argue that 1104(e) does not apply because speeding was not the proximate cause of the accident?

In a very strong dissent, Judge Graffeo joined by Judges Ciparick and Smith urged that all emergency vehicles should get the benefit of 1104(e).

The attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz advocate for our clients' full financial recovery through detailed, meticulous preparation for trial. If you have been injured in an automobile, truck or bus accident, please Contact our firm to discuss your case.

Jeffrey and Diana Acre have filed a wrongful death lawsuit against the Pennsylvania Department of Transportation over the 2009 death of their daughter. They allege that PennDOT's poor design and maintenance of Route 366 in New Kensington was a contributing factor in the death of 16-year-old Kylee Jo.

In the lawsuit filed in Westmoreland County Court, the parents blame PennDOT for not filling in a steep, 4-inch rut between the road and the shoulder. The suit says the design flaw is even more dangerous because the dropoff is located on a curve.

Kylee Jo was a front-seat passenger in an SUV that slammed into a guardrail. She was not wearing a seatbelt. The driver of the vehicle, Jonathan Patrick O'Sullivan, was speeding and under the influence of alcohol at the time of the accident. He was charged with vehicular homicide, drunken driving, speeding and several related crimes.

The lawsuit's request is in excess of $30,000 for pain, suffering and lost earning potential. A spokesman for the PennDOT said he could not comment on pending litigation.

Parents of crash victim sue PennDOT, Pittsburgh Tribune-Review, December 31, 2010

Ford pleaded with the Illinois Supreme Court Justices last week in hope that they'd overturn the $43 million Madison County verdict awarded to Dora Mae Jablonski in 2005, as reported in The Madison Record.

Jablonski's husband, John Jablonski, died after the fuel tank in their 1993 Lincoln Town Car exploded and she suffered severe burns across most of her body.

"We firmly believe that the parties received a fair trial in this case," Fifth District Appellate Court Justice Bruce Stewart wrote in a February judgment.

The attorneys representing the plaintiffs in this Product Liability case alleging defective design were obviously highly experienced. The Lincoln Town Car is built on the same platform as the Crown Victoria Police Interceptor which has been involved in numerous Fuel tank explosions as a result of rear end collisions. The plaintiffs' lawyers were able to get into evidence numerous prior incidents. Unless one has handled a complex products liability case such as this on behalf of a plaintiff it is difficult to understand the amount of time work and money that must be expended to litigate against a major corporation. Kudos for a job well done.

Source: The Madison Record, Justices hear arguments in $43 million Jablonski case

The following is an extract from a report in The National Edition of Verdict Search, Vol. 8 Issue 6, June 2009.

Our Partner, Ben B. Rubinowitz represented the plaintiffs, Gloria Aguilar and Aristides Aguilar.

On Nov. 4, 2005, plaintiff Gloria Aguilar, 45, a homemaker and part-time housecleaner, was struck by a New York City Transit Authority bus. The incident occurred on West 50th Street, alongside its intersection at 10th Avenue, in Manhattan. Aguilar sustained injuries of her arms, head, legs and torso. Aguilar sued the bus's driver, Andrew Monaco, and the bus's operator, the New York City Transit Authority. Aguilar alleged that Monaco was negligent in his operation of the bus. She further alleged that the New York City Transit Authority was vicariously liable for Monaco's actions.

Aguilar's left leg was crushed by the bus's front right tire. She also sustained an injury of her right leg and abrasions and road rash of her head, limbs and torso. She was placed in an ambulance, and she was transported to Bellevue Hospital Center, in Manhattan. Her left leg could not be saved, so it was amputated below the knee.

Aguilar subsequently developed an infection of the remaining portion of her left leg. As a result, she had to undergo surgeries that included further amputation of the leg. She ultimately lost her left knee and about four additional inches of the area above the knee. She wears a prosthetic device. Her hospitalization lasted two months, and she subsequently underwent orthopedic treatment. Aguilar claimed that she suffers residual damage of her legs' nerves. She also claimed that she experiences "phantom" pain that seems to stem from the missing portion of her left leg. She further claimed that she undergoes treatment of residual psychological conditions that include post-traumatic stress disorder and major depression. She contended that her disability prevents her resumption of work.

Aguilar's life-care-planning expert opined that Aguilar must undergo lifelong physical therapy. He also opined that Aguilar's prosthesis must be replaced every three to five years. Aguilar sought recovery of about $5.6 million for her future medical expenses. She also sought recovery of damages for her past and future pain and suffering. Her husband sought recovery of damages for his past and future loss of services and society.

This case was also reported in The New York Times.

Following a six week trial in New York Supreme Court before Judge Paul Feinman, our Partner, Ben B. Rubinowitz obtained a jury verdict of $27,500,000.00.

The plaintiff, Gloria Aguilar, was a 45 year old woman, returning from work. As she was crossing 50th St at 10th Ave, a New York City Transit Authority bus made a right turn into her. The bus knocked her down and then ran over her left leg. Although the leg was attached "by a thread", the doctors at Bellevue Hospital were unable to perform microsurgery due to the crush injuries from the 40,000 pound bus. Ms Aguilar underwent multiple surgeries and eventually had an above-the-knee amputation.

The defendant Transit Authority claimed that Ms Aguilar was outside of the crosswalk at the time she was struck, that she failed to look and walked into the side of the Bus.

The jury rejected that argument finding the Transit Authority 100% at fault and awarded Ms Aguilar $27,500,000.00 - one of the highest verdicts, if not the highest verdict, ever awarded for a woman who lost her leg in an accident.

Judge Feinman denied the motion by the Transit Authority to set the verdict aside as excessive.

In Tirado V. Elrac Inc., U-Haul Co., Inc. decided August 5, 2008, The First Department reversed the order of the Supreme Court granting U-Haul’s motion for summary judgment and granted plaintiffs cross motion to amend his Complaint and held the amendment related back to the original date of filing of the initial complaint thus avoiding application of The Graves Amendment. The facts were as follows;

" Plaintiff alleges that on November 9, 2004, while a passenger in a car driven by defendant Litzey and owned by defendant Elrac, he sustained injuries when their vehicle was struck by a truck owned by U-Haul Co., Inc. (UHI) and operated by defendant McFarlan. The truck in question bore Arizona registration number AB24019 and was apparently owned by U-Haul Co. of Arizona (UHAZ). "

"On July 29, 2005, plaintiff filed a verified complaint, naming Elrac, Litzey and McFarlan as defendants. Believing that the rental truck was owned by UHI, plaintiff sued that entity, claiming vicarious liability for the negligent use or operation of the vehicle. UHI was served on August 26, 2005, by service on the New York Secretary of State, and an additional copy was mailed to UHI at 2727 N. Central Ave., Phoenix, Arizona. On October 7, 2005, U-Haul Co. of New York (UHNY) filed an answer in lieu of UHI, presuming it was the intended defendant."

"On February 6, 2006, UHNY moved for summary judgment dismissing the complaint on the ground that UHAZ, not UHNY, owned the truck, and that UHI was an inactive New York corporation that did not, on November 9, 2004, operate any rental outlets in this state. UHNY also argued that any attempt by plaintiff to amend the complaint to add UHAZ should be denied because the amended action would be commenced subsequent to the effective date of the Graves Amendment."

" Plaintiff, while admitting that the wrong company had been sued, cross moved to amend the complaint pursuant to CPLR 3025(b) to add UHAZ, arguing that under CPLR 203(a), such amendment should "relate back" to the original commencement date of the action, which preceded the effective date of the Graves Amendment. Plaintiff argued that a claim against UHAZ would be based on the same occurrence as the claim against UHNY, and UHAZ was "united in interest" with UHNY."

The Court held as follows;

"The Court of Appeals has recently addressed the issue of when an action is "commenced" for the purpose of applying the preemption provisions of the Graves Amendment. Pursuant to CPLR 304, an action is "commenced" by filing a summons and complaint or summons with notice. "Thus, under the statute's plain language, any action filed prior to August 10, 2005 has been commenced' and therefore removed from the federal statute's pre-emptive reach" (Jones v Bill, 10 NY3d 550, 2008 NY LEXIS 1474, 2008 WL 2276211, *3). In addressing the very situation that this case presents, the Court discussed New York's statutory scheme regarding interposition of claims against a "defendant or a co-defendant united in interest" (CPLR 203[c]), and the requirement that joinder of additional parties and interposition of claims against those parties must occur within the context of an existing action, holding that "[n]othing in the language of the Graves Amendment suggests that it bars vicarious claims asserted in an amended pleading in an action commenced prior to its effective date" (10 NY3d at __, 2008 NY LEXIS 1474 at *5-6, 2008 WL 2276211 at *3).

Therefore, since the action herein was commenced 12 days prior to the effective date of the Graves Amendment, it was removed from the pre-emptive reach of the statute, and plaintiff's motion should have been granted."

In Koenig v. Lee, Decided on July 15, 2008, The 2d. Department dismissed plaintiff's complaint for personal injuries suffered in an Automobile Accident based on the Emergency Doctrine. The facts set forth by The Court were as follows;

"Here, the evidence submitted by the appellants in support of their motion for summary judgment established that the plaintiff's vehicle, which had been traveling southbound, was virtually stopped in the left turn lane of the roadway. According to his deposition testimony, as the defendant Song B. Lee drove in the left lane of northbound traffic, he was forced to swerve across the center line. In so doing, his car collided with the plaintiff's, forcing the plaintiff's vehicle to move backward and into the left travel lane of the southbound traffic. The appellants' vehicle, traveling in that lane, then collided with the rear of the plaintiff's vehicle. According to the plaintiff's deposition testimony, the second collision occurred one or two seconds after the first. According to the deposition testimony of the appellant Joel H. Cohen, he had no awareness that an accident was taking place until the moment his vehicle collided with the plaintiff's."

In dismissing plaintiff's complaint The Court Held;

"Thus, the evidence submitted by the appellants in support of their motion for summary judgment established that Joel H. Cohen was faced with an instantaneous cross-over emergency, not of his own making, leaving him with only a second or two to react and virtually no opportunity to avoid a collision (see Lee v Ratz, 19 AD3d 552, 554; Boos v Bedrock Materials, Inc., 16 AD3d 447, 447; Gonzalez v City of New York, 295 AD2d 122, 122; Caban v Vega, 226 AD2d 109, 111; Koch v Levenson, 225 AD2d 592, 593; Williams v Econ, 221 AD2d 429, 430). Under these circumstances, the appellants established their prima facie entitlement to judgment as a matter of law. Mere speculation that Joel H. Cohen may have failed to take some unspecified accident-avoidance measures or in some other way contributed to the occurrence of the accident is insufficient to defeat the appellants' motion for summary judgment (see Boos v Bedrock Materials, Inc., 16 AD3d at 447; Sirico v Beukelaer, 14 AD3d 549, 549; Mehring v Cahill, 271 AD2d 415, 415-416; Lyons v Rumpler, 254 AD2d 261, 262-263; Caban v Vega, 226 AD2d at 111; Williams v Econ, 221 AD2d at 430). In opposition, the plaintiff failed to raise a triable issue of fact as to whether Joel H. Cohen's reaction to the emergency was unreasonable, or whether any negligence on his part prior to the cross-over contributed to the bringing about of the emergency (see Lee v Ratz, 19 AD3d at 554)."

The lesson to be learned is that in a New York Automobile Accident in which the Emergency Doctrine may be implicated GET AN EXPERT. A qualified accident reconstruction expert is able, using long accepted methodology, to analyze a driver's perception of a situation as a hazard, to analyze the driver's decision as to how to avoid the hazard and to analyze the driver's performance as to the actions undertaken to avoid the hazard. The qualified expert will be able to give opinions on the driver's reaction time from perception of the hazard and whether the driver reacted in a timely manner in order to avoid the hazard.

Uninsured Motorist Coverage/Supplemental Underinsured Motorist Coverage

A. When and How It Applies:

1. Uninsured Motorist Coverage (UM) - Insurance Law Section 3420(f)(1) - is mandatory in New York State which makes certain that the minimum bodily insurance coverage mandated by law is available to those involved in an accident with an uninsured vehicle.

2. Under Insured Motorist Coverage (technically called supplementary uninsured/under insured motorist coverage or SUM) - Insurance Law Section 3420(f)(2) - is optional coverage which provides an insured person up to the level of coverage that was purchased over the minimum.

3. Difference between UM and SUM coverage:UM - An "uninsured vehicle" includes a vehicle that is not covered by an insurance policy and it includes vehicles for which neither the owner nor the driver can be identified (including hit and run driver).SUM - An "under insured" vehicle normally means that the amount of insurance on the other vehicle is less than that on the insured’s vehicle. However, it can also mean that, due to payments made under that policy, the amount of coverage remaining is less than the coverage on the insured vehicle or the insurer on the other vehicle denies coverage or becomes insolvent - these are not the typical scenarios.

Rafellini v. State Farm, 9 N.Y.3rd 196 (Ct. App. 2007). The importance of this case cannot be overstated. Originally, in this case, the Second Department held that the No-Fault "serious injury" threshold does not apply to Underinsurance claims (SUM) although it did apply to Uninsured Motorist claims (UM). The Court of Appeals reversed and held that a claimant applying for SUM benefits would be subject to the No-Fault "serious injury" threshold and the defendant insurer could raise this as a defense to a SUM claim. Thus, any claimant applying for UM or SUM coverage must have a "serious injury" within the meaning of the No-Fault law and the legion of case law in that area.