Auto Accident Injury

Published on: June 30, 2024

Respondent contested the brain injury’s classification as a grave injury. Montesdeoca v. 101-19 37th Ave. LLC 2018 N.Y. Slip Op. 30813 (N.Y. Sup. Ct. 2018)

by Stephen Bilkis

In personal injury law, accidents on construction sites often lead to complex legal disputes involving multiple parties. In Montesdeoca v. 101-19 37th Ave. LLC 2018 N.Y. Slip Op. 30813 (N.Y. Sup. Ct. 2018), the court was faced with not only determining liability, but whether the plaintiff’s injuries were “grave” as defined by workers’ compensation law. Under Workers’ Compensation Law § 11, a “grave injury” is a severe, life-altering injury that significantly impacts a worker’s ability to function. It includes specific injuries such as death, permanent and total loss of use or amputation of an arm, leg, hand, or foot, total and permanent blindness or deafness, loss of nose, ear, index finger, permanent and severe facial disfigurement, or an acquired injury to the brain caused by an external physical force resulting in permanent total disability. This strict definition limits the circumstances under which an employer can be held liable for indemnification or contribution in third-party actions.

Background Facts

The accident occurred on October 23, 2013, when Jose Montesdeoca was involved in a motor vehicle accident while delivering sheetrock materials to a construction project on a property owned by 101-19 37th Avenue LLC. Montesdeoca, employed by SFLC, a construction materials supplier, fell through a hole on the property. He sought damages for his injuries, including a brain injury, alleging violations of Labor Law §§ 200, 240(1), 240(2), 240(3), and 241(6), along with common-law negligence.

Published on: June 30, 2024

Arbitrator found no link between accident and brain injury. Haufe v. Liberty Mut. Ins. Co., 2019 N.Y. Slip Op. 33873 (N.Y. Sup. Ct. 2019)

by Stephen Bilkis

In Haufe v. Liberty Mut. Ins. Co., the court addressed a motion to vacate an arbitration award related to a motor vehicle accident that occurred on October 23, 2013. One way to resolve a dispute related to a car accident is through arbitration. Arbitration is an alternative dispute resolution process where an impartial third party, known as an arbitrator, hears evidence and arguments from both parties and then makes a binding decision. This method is often faster and less formal than going to court, and it can provide a more private setting for the dispute resolution. For car accident cases, especially those involving insurance claims, arbitration can be a useful tool to achieve a resolution without the lengthy process of litigation.

However, if a party feels that the arbitrator’s decision is unreasonable, they can appeal it in court. In such cases, the appealing party must demonstrate that the arbitrator acted arbitrarily, capriciously, or exceeded their authority. Grounds for appeal can include the arbitrator’s misconduct, bias, refusal to consider pertinent evidence, or making a decision that goes beyond the scope of the issues presented.

In Haufe v. Liberty Mut. Ins. Co., the petitioner argued that the arbitrator’s decision, which found no causal connection between his alleged brain injury and the accident, was arbitrary and capricious.

Published on: June 30, 2024

Defendants sought to set aside or reduce $1.3 million damages award. Deleon-Barrera v. Bartlett Dairy, Inc., 2020 N.Y. Slip Op. 34672 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

In Deleon-Barrera v. Bartlett Dairy, Inc., the plaintiff sustained injuries from a motor vehicle accident. After a jury trial addressing damages, the defendants to seek a retrial or a reduction of the damages.

In personal injury cases, “serious injury” is a legal term that refers to a specific level of harm that meets the statutory thresholds for filing a lawsuit. In New York, under the Insurance Law § 5102(d), serious injury includes categories such as death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use of a body organ, member, function, or system, permanent consequential limitation, significant limitation of use of a body function or system, or a medically determined injury that prevents the injured person from performing daily activities for 90 days within the 180 days following the injury.

This definition is important because it determines whether an injured party can pursue a claim for non-economic damages, such as pain and suffering, beyond the basic economic loss covered by insurance. Establishing that an injury meets this threshold allows the plaintiff to seek full compensation for their losses, including long-term medical costs, pain, and lifestyle impact.

Published on: June 29, 2024

Court determined that claimant’s brain injury was permanently disabling. Arias v. U.S. Concrete, Inc., No. 2021-05379 (N.Y. App. Div. Oct. 7, 2021)

by Stephen Bilkis

Arias v. U.S. Concrete, Inc., No. 2021-05379 (N.Y. App. Div. Oct. 7, 2021) is a workers’ compensation case involving a maintenance worker who sustained multiple injuries, including a traumatic brain injury, while on the job. In a workers’ compensation case, an injured worker files a claim with their employer’s workers’ compensation insurance. The case is reviewed by the Workers’ Compensation Board, which evaluates medical evidence and testimonies to determine eligibility for benefits. If either the claimant or the employer disagrees with the Board’s decision, they can appeal to the Workers’ Compensation Law Judge (WCLJ). Further disagreements can be appealed to the full Workers’ Compensation Board. If either party is still unsatisfied with the outcome, they can then appeal the Board’s decision to the Supreme Court of New York, Appellate Division. In Arias v. U.S. Concrete, Inc., , the employer appealed the decision of the WCLJ.

Background Facts

The claimant, a maintenance worker, filed for workers’ compensation benefits following an incident in December 2016. He alleged injuries to his right arm, head, face, jaw, ear, and tooth after being struck by a vehicle at work. The claim initially covered injuries to his jaw, neck, back, and right shoulder, later expanding to include post-traumatic stress disorder. Over the course of his claim, the claimant received medical care from Dr. Seth Schran and underwent independent medical examinations by Dr. Paul Kleinman.

Published on: June 19, 2024

Court determined that traumatic brain injury contributed to fatal accident. Baselice v. Long Island R.R., 79 Misc. 3d 1070 (N.Y. Sup. Ct. 2023)

by Stephen Bilkis

Baselice v. Long Island R.R., 79 Misc. 3d 1070 (N.Y. Sup. Ct. 2023) is a tragic case involving a Long Island Railroad train derailment that led to a wrongful death claim. The plaintiff, George Baselice, initially filed a lawsuit in 2017 following the accident that occurred on October 8, 2016. The derailment resulted in serious injuries to his wife, Carmela Baselice, which allegedly contributed to her subsequent fatal car accident in 2020.

Background Facts

The incident began on October 8, 2016, when a Long Island Railroad train derailed between the New Hyde Park and Merillon Avenue stations in Nassau County, New York. George Baselice and his wife, Carmela Baselice, were passengers on the train when it was sideswiped by a Long Island Railroad work train. The collision caused Carmela to suffer significant personal injuries, including a traumatic brain injury. Her symptoms included post-traumatic stress disorder, major depressive disorder, dizziness, vertigo, blackouts, seeing stars, and headaches.

Published on: December 6, 2012

Woman is Injured in Car Accident

by Stephen Bilkis

A personal injury action arises out of a motor vehicle accident that occurred at the intersection of Oceanside Road and Erwin Place in Oceanside, New York. Among other injuries, the woman suffered a traumatic brain injury.

On June 30, 2010, the Court denied the opponents’ motions for summary judgment to dismiss the woman’s complaint. The Nassau Court determined that, as the woman had yet to testify at her sworn examination before trial, the accused men’s motion for summary judgment must be denied as premature. The Court also determined that because both accused men have failed to demonstrate that the Town of Hempstead Building Zone Ordinances do not apply to them, the motion and cross motion must be denied. Finally, the Court also held that, because the driver’s operation of his motor vehicle while under the influence of alcohol arguably may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the accused men’s motions for summary judgment to dismiss the woman’s action based in negligence must be denied.

The core of the woman’s allegations against the accused men relates to certain bushes located between the residences, which bushes are alleged to block the view of traffic. The woman alleges that the overgrown nature of the bushes, which she claim are in contravention of height requirements provided in local ordinances, contributed in some measure to the occurrence of the serious traffic accident.

Published on: November 21, 2012

W. Virginia Seeking to Help TBI Victims at Home

by Stephen Bilkis

The state of West Virginia is seeking a federal Medicaid waiver so it can offer a program that will help people with traumatic brain injuries (TBI) remain in their homes, rather than forcing them into nursing homes or other facilities.

Earlier last month, the West Virginia state Supreme Court upheld a County Circuit Court ruling that issued a requirement that the Department of Health and Human Resources had to seek the waiver from the federal entity and that they had to get funding for the program.

A DHHR spokesman told a Lawyer that the program will begin when the federal Centers for Medicare and Medicaid Services approves the waiver. Though the agency can’t pinpoint when the waiver will be approved, they did say it plans to provide services to 75 people in the first year, 100 in the second year, and 125 at the third year of the program.

Published on: November 17, 2012

War Zone MRIs Aid Brain Injury Treatments

by Stephen Bilkis

At the climax of last year’s fighting season, more than 300 U.S. troops received mild traumatic brain injuriesor concussions every month. Often those injuries resulted from exposure to a blast. Troops not killed or gravely wounded by blasts were often left stunned or even momentarily unconscious.

Concerned that many soldiers were suffering mild traumatic brain injuries or concussions, the military put new treatment procedures in place last year. Regulations now require that any soldier or Marine caught near a blast has to be pulled from active combat for at least 24 hours, and they must be examined for signs of concussion. Those displaying symptoms – such as dizziness, headaches or vomiting – remain on rest duty until the symptoms disappear. This can take up to a week or two.

The concern that led to this change revolved around the thought that troops need time to recover, and that exposure to a second blast before a brain has healed, could cause permanent damage. Manhattan and Long Island doctors remark that it is pivotal that military officials are attempting to provide combat operation manuals that incorporate the wellbeing of soldiers.

Published on: September 20, 2012

U.S. Representative Giffords’ Office Closing Gap in TBI Care

by Stephen Bilkis

Staff members in the employ of Rep. Gabrielle Giffords (D-Ariz.) have become key advocates in the campaign to ensure health-care guarantees for Americans who suffer traumatic brain injuries (TBI). They are advocating that other citizens should be entitled to the same high quality care that the congresswoman is receiving in her recovery from a January shooting.

Last month, Giffords’ chief of staff released a letter urging Health and Human Services to prioritize defining the minimum package of “essential benefits” in the new health-care law that will be required of insurance plans for individuals and small businesses. This new law is expected to be operational by 2014.

Giffords’ Staff members are also planning to join encourage the Defense Secretary to expand the range of “cognitive rehabilitative therapies” that Tricare, the military’s insurance program for active-duty and retired service members, covers in cases of brain injury.

Published on: September 5, 2012

This is an action for personal injuries allegedly sustained by the plaintiffs

by Stephen Bilkis

This is an action for personal injuries allegedly sustained by the plaintiffs herein as a result of purported exposure to lead-based paint at premises owned by the moving defendants. Susan Adams is the plaintiffs’ mother and she has commenced this action in her representative capacity as parent and natural guardian of Steffen Adams, an infant. The other plaintiffs, Shane Adams and Justin Adams, also the children of Susan Adams, have reached the age of majority.

An attorney from he Bronx said that in the Bills of Particulars verified by plaintiffs’ counsel, the plaintiffs Shane and Justin Adams alleged multiple neurological, cognitive functions, neuro-behavioral, developmental and psychological injuries including neurological damage, brain damageand Attention Deficit Hyperactive Disorder (ADHD) as a result of exposure to lead while residing at the defendants’ premises. Significantly, the plaintiffs’ Complaint alleges lead paint exposure during three (3) different time periods at three (3) different residential leasehold premises. Defendants Rizzo and Scaravillo were owners of premises known as 212 Seward Street at which plaintiffs resided between 1988 to 1990. The Cifra defendants owned 302 Mildred Avenue at which plaintiffs resided from 1991 to 1992. Defendant Luttinger owned 501 John Street at which plaintiffs resided from 1990 to 1991. The allegations of brain injury advanced by Susan Adams on behalf of Steffen Adams are verbatim identical to those of Shane and Justin.

Thereafter, Susan Adams was deposed, and upon commencement of this deposition, counsel for all parties stipulated, as is the custom and practice in this district, that all objections except those as to form were reserved until the time of trial and that the deposition would be held pursuant to the provisions of the Civil Practice Law and Rules. At the beginning of this deposition, plaintiffs’ counsel, James Nixon, made certain pronouncements and imposed significant unilateral limitations on the scope of the questioning he would permit Susan Adams to answer. Almost immediately, Mr. Nixon undertook a course of conduct at the deposition whereby he restricted the witness from answering questions, made demands for production of records supporting the questioning counsel’s “good faith” and otherwise engaged in conduct that, severely limited and unfairly and improperly obstructed the defendants’ ability to conduct the deposition.