Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.
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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;

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In product liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the machine properly or to follow warnings which caused the plaintiff’s injury. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer is crucial. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a machine. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Machine design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

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In D’Amato v. Yap, et al., Decided July 8th 2008, The 2d. Department held that while plaintiffs were not entitled to Summary Judgment on liability they were entitled to a unified trial on liability and damages. The facts set forth in The Court’s opinion were as follows;

“The seven-year-old infant plaintiff, Nicholas D’Amato (hereinafter Nicholas), tripped and fell while playing with friends in the basement of the home of the defendants Medardo N. Yap and Gloria Yap, just after his friend, the defendant James Yap, shut off the light to the basement. When Mrs. Yap arrived home, one of James’s friends told her that Nicholas had fallen in the basement on some tools and hurt his eye, and showed her the spot where he had fallen. When Nicholas went home, he told his mother that he poked himself in the eye with his finger when his hand slipped on a doorknob.

The next morning, his eye was swollen shut. After seeing his pediatrician, Nicholas and his mother went to an eye specialist who sent them to the New York Eye and Ear Hospital, where they learned that his right eye had a ruptured globe and lacerated cornea. When the doctors who treated Nicholas rejected the explanation that he poked himself in the eye as inconsistent with the severity of his injuries, he told them that he tripped in James’s house and fell onto a tool which stuck him in the eye.”

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Murray v. New York City Health & Hospitals Corporation June 24th, 2008 WARNING

The 2d. Department upheld the dismissal of plaintiff’s action for wrongful death resulting from medical malpractice when the plaintiff’s counsel failed to appear for a final conference. The Court held;

“To be relieved of the default in appearing, the plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015[a][1]; Brownfield v Ferris, 49 AD3d 790; Zeltser v Sacerdote, 24 AD3d 541, 542; Solomon v Ramlall, 18 AD3d 461). The vague and unsubstantiated allegations of the plaintiff’s counsel regarding law office failure did not amount to a reasonable excuse (see St. Luke’s Roosevelt Hosp. v Blue Ridge Ins. Co., 21 AD3d 946, 947; Solomon v Ramlall, 18 AD3d 461; Fennell v Mason, 204 AD2d 599). The further allegations regarding law office failure contained in counsel’s affirmation that was submitted for the first time in the reply papers of the plaintiff’s motion, in effect, for leave to reargue were properly rejected by the court (see Parkin v Ederer, 27 AD3d 633; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355). Furthermore, the plaintiff failed to submit an affidavit of merit from a medical expert (see Mosberg v Elahi, 80 NY2d 941; Salch v Paratore, 60 NY2d 851, 852; Hassell v New York Univ. Med. Ctr., 48 AD3d 632; Yushavayev v Kopelman, 307 AD2d 996; Burke v Klein, 269 AD2d 348). Accordingly, the Supreme Court properly granted the defendant’s motion for leave to enter judgment against the plaintiff and properly denied those branches of the plaintiff’s cross motion which were to vacate the dismissal of theaction and to restore the action to active status.”
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In Bradley vIBEX Construction, et al. decided June 26th, 2008, The First Dept. reversed the lower Court’s decision denying plaintiffs’ motion to set aside a verdict for defendants and granted the motion and directed judgment be entered in favor of plaintiffs on the issue of liability pursuant to § 240(1), and remanded for a trial on damages and apportionment of fault among defendants.

The Court held that plaintiffs’ motion for partial summary judgment was properly denied. It further held the denial of plaintiffs’ motion for a directed verdict on the issue of liability was proper as there was an issue of fact as to whether the alleged violation of § 240(1) proximately caused his accident. However, in granting plaintiffs’ motion to set aside the verdict The Court held;

“However, the motion court improperly denied plaintiffs’ posttrial motion to set aside the verdict and for judgment notwithstanding the verdict. Since the jury determined that plaintiff worker fell off the ladder, it could not have reasonably concluded, in light of the evidence, that the ladder was placed and used so as to give him proper protection in the performance of his work. Other than the accident report, which the jury clearly rejected, defendants and second third-party defendant failed to present any evidence controverting plaintiffs’ version of the accident, i.e., that the ladder had slipped on the plastic-covered floor. Furthermore, there was no evidence to suggest that plaintiff worker’s own actions were the sole proximate cause of his injury (see Bonanno v Port Auth. of N.Y. & N.J., 298 AD2d 269 [2002]).”
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In Morales v. D & A Food Service, et.al; June 25th 2008, The Court Of Appeals in reversing The First Depatrment’s dismissal of plaintiff’s Section 240(1) claim held;

“The order of the Appellate Division should be reversed, with costs, defendant Santomero’s motion for summary judgment denied, plaintiff’s cross motion for partial summary judgment on his Labor Law § 240 (1) cause of action against defendant Santomero granted and certified question answered in the negative.

Contrary to defendant’s argument, plaintiff’s work constituted an alteration within the meaning of Labor Law § 240 (1) (see Joblon v Solow, 91 NY2d 457, 465 [1998]). In light of our recent decision in Sanatass v Consolidated Inv. Co., Inc. (10 NY3d 333 [2008]), defendant’s contention that he lacks a sufficient nexus with plaintiff to support liability under section 240 (1) is without merit. Since plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his section 240 (1) claim and defendant failed to raise a triable issue of fact in opposition thereto, plaintiff is entitled to partial summary judgment on liability. ”

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In Guzman v 4030 Bronx Blvd. Assoc. L.L.C., Appellate Division, First Department, Decided on June 19, 2008 The Court held;

“While plaintiffs’ expert is qualified to render an opinion on the extent of plaintiff Tyrone Guzman’s neurological deficits and may testify that those deficits are consistent with a history of head trauma, plaintiffs have failed to identify any evidentiary basis for the opinion sought to be elicited from the expert as to which of several accidents is the proximate cause of such deficits. Thus, his testimony as to this isolated point was properly precluded. However, we conclude that the trial court erred in dismissing this action without affording plaintiffs the opportunity to retain another expert witness to establish the nature of Tyrone Guzman’s physical injury and its cause, and we remand this matter for further proceedings.”

The lower Court had precluded the plaintiff’s neuropsychologist from testifying as to causation regarding the infant plaintiff’s head injury and dismissed the plaintiff’s case. In reversing the Court held that plaintiff’s should have been granted “……a continuance pursuant to CPLR 4402 to enable them to retain a medical expert to testify concerning causation.”

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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.

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LOSS OF VISION FOLLOWING BLEPHAROPLASTY AS A RESULT OF ORBITAL HEMORRHAGE

Blepharoplasty basically is surgery in which excess tissue is removed from the eyelids. It is the most commonly performed cosmetic surgery of the face. Upper eyelid surgery is usually performed for removal of excess skin, muscle and fat and lower lid surgery for the removal of fat pads, so called baggy eyelids caused by herniation of periorbital fat.

The most serious complication of blepharoplasty is partial or complete loss of vision, most commonly as a result of intra-orbital hemorrhage. A widely accepted theory suggests orbital bleeding increases intraorbital and intraocular pressure, compromises the ocular circulation, and results in ischemic or optic nerve damage. Ischemic optic neuropathy and central artery occulsion are believed to be the most common final events in most cases of blindness after blepharoplasty. (Lowry JC, Bartley GB: Complications of Blepharoplasty. Surv. Ophthalmol 38:327-350, 1994).

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To prevail in a civil rights action under 42 USC §1983, plaintiff must establish that defendants deprived decedent of a right secured by the constitution or laws of the United States and that such deprivation was committed by person(s) acting under color of state law (see, Spell v. McDaniel, 591 F.Supp. 1090 [1984]). Officially promulgated ordinances, regulations and departmental directives give rise to municipal liability under section 1983 if such policies and decisions lead to a deprivation of constitutional rights (Id.). Municipalities are liable under section 1983 for de facto policies or practices which engender constitutional deprivation; informal actions, if they reflect general policy, custom, practice or pattern of official conduct which even tacitly encourage conduct depriving individuals of their constitutional rights, satisfies section 1983 standards (Id.).

Legal Standard For Discovery

Federal, and not State law, governs questions of discoverability, confidentiality and privilege in federal civil rights actions (see, King v. Conde, 121 F.R.D. 180 [EDNY 1988]; Fed. R. Civ. P. 26[b][1]). Under Rule 26 (b)(1) of the Federal Rules of Civil Procedure, any information that is not privileged is discoverable if it is relevant to the action or reasonably calculated to lead to the discovery of admissible evidence.

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