In a recent case, the Plaintiff managed to jump out of the way of a fire department vehicle which struck a person standing next to the Plaintiff. Thinking that she was not seriously injured, the Plaintiff did not pursue litigation.

The seemingly minor injury eventually turned into a serious injury which required knee surgery. The Plaintiff indicated that she had been stymied in an attempt to obtain information from the Police Department because she was not directly hit by the offending vehicle, and she failed to report any injury at the time of the accident. This set of circumstances led to the late filing of the Notice of Claim.

At a hearing regarding the motion to file the late Notice of Claim, the court noted the testimony of the individual that was hit by the vehicle supporting the Plaintiff’s contention that she was present at the scene and time of the accident. The Court also noted that the municipality was well aware of all the relevant facts surrounding the accident because of the police presence at the scene and because it was the agents of the municipality which performed the acts of alleged negligence complained of by the Plaintiff.

Finding the reasons for the Plaintiff’s delay in filing were reasonable, and that no prejudice inured to the municipality, the Court allowed the late Notice of Claim.




During the last week of May of this year (2010) alone, there were two serious construction site accidents involving falls from significant heights. One involved a worker at a residential building falling fifty feet while he was working on the building’s steel framework. The other involved a worker at the Throgs Neck Bridge.

The first worker died after falling fifty feet. The bridge worker fell 15 to 20 feet off a ladder and was seriously injured.

With respect to the worker that died, officials indicated that it seemed as if he was not wearing a safety harness ! It is precisely this point to which we direct our attention.

There are several facts that make accidents at construction sites unique in the area of Personal Injury Law in New York:

  • Construction site accidents are among the most frequent accidents that occur;
  • The resulting injuries are among the most serious that occur;
  • Public policy is very inclined to seek protection for injured workers and their families;
  • the law, especially with respect to liability (who is responsible for the accident that occurred) is not at all necessarily what the layman might think it is–the law can be extremely complex.

The fact that the worker that fell and was not wearing a safety harness should not, and does not, eliminate the possibility that the worker or his family will have a THIRD PARTY LAWSUIT available to him. This would be in addition to any workers compensation claim the worker or his family might have.

It is truly esential when dealing with a construction site accident that a personal injury attorney, in addition to a workers compensation attorney, be consulted. As we have noted on previous blog postings, this could mean very substantial differences to the injured worker and his family. Because of the law’s complexity in this area, be very certain the Personal Injury Attorney chosen is well experienced in this important area of law.


Forum Shopping II | Manhattan Personal Injury Attorney


As we have seen, with respect to situations where state law may differ from federal law, and both state and federal jurisdiction exists, the fact situation of the case may determine the most advantageous court in which to bring your lawsuit.   There are, however, several other factors that will be considered by the experienced litigator, particularly in personal injury cases, in deciding which court to file your lawsuit, presuming a choice exists.

Time limits that restrict, or even eliminate, your pursuit of an action in state court may well be viable in Federal court.

This could also hold true should you have a choice of bringing an action in the courts of different states–the Statute of Limitations in one state could well differ from that of another state.

With respect to cases brought in New York City, it is well recognized that, almost invariably, a lawsuit filed in the Federal Courts (again, presuming jurisdiction exists) will reach its conclusion well before a lawsuit, based on exactly the same incident, would reach its conclusion in State court. If time may be an important factor, such as the presence of an elderly or ill client or witness, this could become decisive.

More amorphous or subtle considerations are apt to enter the picture as well.  Discovery rules differ in Federal and State courts, and if certain discovery is crucial to a case, the experienced attorney will factor that issue into the choice of “venue”.

And choice of courts is not only limited to one state vs. another state’s courts or State vs. Federal court.   It may well come down to as simple a choice as to which county within one state (again presuming a choice exists)  one should file the lawsuit.  Here, again, the length of time to bring a lawsuit to conclusion can differ significantly between counties.  And, though attorneys may be somewhat loathe to admit this fact, “common knowledge” among the profession has it that certain counties may have juries that are more favorably disposed towards plaintiffs than other counties–while others are more favorably disposed towards defendants.

The practice of law, and in particular it’s applicability to the  field of Personal Injury Law, is highly technical.   It is filled with issues that require not only “book  knowledge” but also the need to “sense” factors that can only come with experience.  As this topic of “FORUM SHOPPING” clearly demonstrates, some factors that would never appear on the client’s “radar screen” could well make a dramatic difference in the outcome of that client’s case, even before the client is aware that a case has begun !!

Forum Shopping | Brooklyn Personal Injury Attorney




As any experienced litigation attorney will explain, more often than not there will be a choice of courts in which to bring a lawsuit you may be contemplating.  Among attorneys, this is known as choosing a “venue.”

Often the venue choice will be between state courts in different counties.  Other times, it may be a matter of choosing to bring the case in either a state or a federal court.

Experienced attorneys fully realize that the choice of “venue” at the very beginning of a case can, in and of itself, spell the difference between  great, or merely modest, success,  and at times it can even mean the difference between success and complete failure!

In 2004 a disabled passenger fell down a flight of stairs while disembarking from a commuter airline (Elasaad v. Independence Air) in Philadelphia.   The lawsuit was brought in the state court.  The state court ruled that federal law applied.   Since federal law requires that a disabled passenger must request assistance before the airline is obligated to lend assistance, and the passenger in this case failed to request assistance, the case was dismissed by the state judge.

Since appeals are both time consuming and costly, pursuing an appeal from a court decision is not a frequent event.In this case however, an appeal found its way to the Federal Court of Appeals which reversed the state court decision.  The Federal Appeals Court found that while federal rules do apply while the plane is in flight, state laws may apply while passengers are disembarking. Federal law did not pre-empt state law in such a situation. The case, originally brought by the Plaintiff in state court, may stay in state court and state law may apply. Since state law does not require a prior request for assistance to an airline by a disabled passenger, before the airline becomes responsible, the passenger was victorious.

While the attorneys in this matter certainly chose the correct court originally in which to bring this lawsuit, it was the original court that got the law wrong!  The diligence of the Plaintiff’s attorneys corrected that mistake.  Future attorneys will take note of this case.  Those attorneys that keep track of cases as they develop (which is essential for any competent, experienced attorney), will be aware that the choice of venue in cases of this nature will be the state, and not federal, court.

“Forum shopping” extends beyond issues of conflicting laws.  Often it concerns itself with more subtle issues.  We will touch on this subject in another posting.


Sexual Abuse: Pedophile Pediatiricians | Brooklyn Personal Injury Attorney



It would be hard to imagine something as repugnant as members of the clergy participating in, and countenancing, the sexual abuse of those they counsel and to whom they provide spiritual guidance.   If exceed that we must, we only have to look at the cases of sexual abuse coming to light now involving pediatricians and their patients, ranging in age from 2 years to teenage.

As with priests in the Catholic Church, physicians who become aware of these gross violations of professional conduct by their colleagues invariably seek the removal of that colleague from their practice, and condone the fact that those pedophiles simply relocate to another practice.

The continued participation by the pedophile physicians in their abominable activities would seem to be preferable to fellow physicians than pursuing avenues that would certainly lead to removal from the practice of medicine and probable criminal prosecution.   The welfare of the young patients, as was the case with the welfare of young parishioners, is of secondary importance !  The “code of silence,” it would seem, crosses professional boundaries.

Within just the past few months, what is possibly the single worst case of physician pedophilia came to light in Delaware.  Dr. Earl Bradley was accused of sexually abusing more than 100 children. The accusations ranged from oral sex to rape, and his history is one of willful ignorance and repeated inaction by professional colleagues and police.

Outrageous and illegal activity such as that which is described should not go without some recourse for the victims. The effects of this conduct will likely last a lifetime, and the pain and suffering visited upon these young people in  their most tender years should not go uncompensated.  While the pedophile himself may be “judgment proof,” those from whom the victim or his or her family seek legal help will, if adequately experienced, be in a position to seek out other sources that contributed in some way to the offenses that occurred and who are, themselves, susceptible to providing the compensation to which the victim is entitled.
For more information on what to do if you or a loved one has been sexually abused in New York , contact The Orlow Firm online or at 800-LAW-NYNY.



Three recent unrelated cases can illustrate just how broad an area the issues facing the personal injury attorney can cover. *(Taken from )
Case 1: Man Sues PetSmart–Says He Slipped on Dog Feces
Case 2: Woman Dies After Getting Stuck in Elevator
Case 3: Teen Sues School Over Stabbing

The attorney receiving these cases will have to analyze a wide variety of issues in making an initial evaluation as tho whether or not  there is a valid, sustainable lawsuit.  In addition, the attorney will have to decide whether or not it makes “economic sense” for his firm to accept the matter.  This latter issue is usually based on two factors: first, what is the extent and nature of the injury incurred; second, is there a realistic source from which monetary damages can be obtained (in most cases, insurance).Let us imagine differing scenarios in the above cases:

Case1: What if the dog feces occurred when another customer’s dog, whose owner was in the  shop to purchase an item for his dog, had just relieved itself a moment before the victim fell?  Would the store owner be liable?

Case 2: What if a woman forgot to take her heart medication that day, the elevator gets stuck for a few minutes, and the women, who is also claustrophobic, begins to panic, and dies?  Is the building owner or elevator company liable?

Case 3:  What if the victim of the stabbing sought refuge in the school but was not permitted inside by a school guard (correct fact in this case)?  And what if this event was part of a gang fight outside the school?  Did the guard have to let this victim back into the school?

These scenarios demonstrate the complexity, at times, that arise with the wide variety of fact patterns Personal Injury Attorneys are confronted with on a daily basis.  In many firms, partners will often meet to digest and contemplate facts surrounding a “difficult” case and decide whether or not that firm can be comfortable in accepting a matter.
When a firm accepts a case, it is understood that a client is depending on that firm to alleviate, in some manner, through the obtaining of monetary compensation, the suffering that client has endured and may continue to endure into the future.  No responsible attorneys would want to have a client depend on them for such an awesome responsibility without being as sure as possible that their firm is in a position where a successful outcome, while never a total guarantee, will be a more than likely outcome.

Collapsing Cranes | Brooklyn Personal Injury Lawyer


Within just the last several months there have been a spate of crane accidents in New York City, some of which have resulted is serious injury and even death. The latest crane collapse occurred in Brooklyn , at a construction site. Four workers were injured. Not long before that a large crane “tilted,” hitting a 25 storey building.

Before these incidents, the City of New York has seen crane accidents over a period of years.  With injuries come lawsuits, and cases have been going to trial. Just this month (April, 2010), in a case that involved the death of two construction workers in May, 2008, in a crane collapse, a judge  took the rare step of fining the City of New York, one of the defendants in the case, for failing to provide documents to the Plaintiffs as ordered by the court . There was also a criminal case pending against the owner of the crane company for taking inappropriate steps to repair a part of this crane that had previously cracked.  It was this part that caused the crane to subsequently collapse.

In the collapse of the crane into the 25 story building, New York City suspended the operator’s license.

It was determined that because the operator left the crane in other than the safest position possible, the collapse occurred.

In a criminal case that may well be symptomatic for so many of the problems the City faces at construction sites, the City’s former chief crane inspector pleaded guilty to “receiving bribes”.  His career with the City spanned 26 years.  He admitted he took bribes over the last several years to basically provide abbreviated and inadequate inspections of cranes, as well as crane operator qualifications.

It was after the second of two crane collapses in 2008, that resulted in a total of nine deaths, that the City began to seriously crack down on inspections.  The City then also began a program of “beefing up” its crane inspection system.

Crane collapses are almost invariably serious events involving drastic injuries.  Those seeking to bring a lawsuit based upon crane accidents would do well to investigate carefully the reputation and experience of any personal injury lawyer that they consider retaining to represent their interests.


Intentional Torts & Assault & Battery | Manhattan Personal Injury Attorney


Let us recall that we are dealing here with CIVIL, as opposed to CRIMINAL, concepts, though it is possible, and even likely, that both civil and criminal penalties may flow from the same actions.

“ASSAULT” occurs when one person intends for another individual to believe he/she will be subjected to imminent “harmful or offensive” contact.

The perceived threatened contact cannot be some future act.  The” intentional tort” of “assault” also requires more than mere words—it requires an “overt act”.  “Assault” requires apprehension, or even fear, that “harmful or offensive” contact is about to occur.  No physical contact, however, occurs !

On the other hand, the “tort” of BATTERY does involve physical contact.  It occurs when one person intends to cause “offensive or harmful” contact to another and such contact actually does take place !

If D throws a bat at the opposing little league’s coach because D’s team just struck out in the final out of the game, and D hits an opposing player instead of the coach, a “battery” has nevertheless occurred.

The INTENTIONAL TORTS of assault and battery occur with some frequency in cases involving false arrest by police officers and cases involving private security guards.

The issue will also often arise in cases involving “bouncers” in nightclubs and after hours spots where liquor flows freely.  From the point of view of the Personal Injury Attorney these cases do present viable opportunities to recover adequate compensation for injured clients because, in addition to the perpetrator of the “intentional tort” being the subject of the lawsuit, the employer will almost invariably be included as a defendant in the lawsuit as well.  It is the employer, after all, that will be the one with the resources to provide the compensation sought.


RES IPSA LOQUITOR | The Act Speaks For Itself


As we have discussed before, a sustainable lawsuit requires an injured party to demonstrate the liability (fault) of another, at least to some degree, in having caused the incident that resulted in that injury.   Most often this is done through witnesses, with the injured party themselves being the most frequent of these witnesses.

There are numerous other sources of direct proof that can show the target of the lawsuit (the Defendant) failed to act with “due care” based upon a duty the Defendant had with respect to the injured party.


In a recent case (Keyser v. KB Toys, Inc.) in Suffolk County New York, a shopper was injured by falling boxes piled high in a toy store. No employees were near the boxes. The jury found for the defendant toy store.  The judge set aside the decision !!  (Yes, a judge can do that saying that, according to law, there simply was not enough evidence to permit the jury to decide the way it did !!).

The injured party (the Plaintiff) had presented the theory of RES IPSA LOQUITOR which the judge believed was not adequately overcome by the Defendant. This theory is based on the thought that, unless someone was negligent, there are certain events that simply do not occur !

For “RES IPSA LOQUITOR” to be applicable in a case, three elements are necessary:

1. the accident that happened must be of the type that normally would not occur unless there was negligence–an “absence of due care,” by someone;

2. the Defendant had a “duty of care” toward the injured party, specifically in relation to the object that caused the Plaintiff’s injury;

3.  the Plaintiff was in NO WAY responsible for the occurrence of the event that lead to the Plaintiff’s injury.

The “Resp Ipsa Loquitor” doctrine is an important tool in the arsenal of the experienced Personal Injury Attorney.   This article should clearly demonstrate to the layman that, even in the event it would seem to an injured party that it would not pay to being a lawsuit since “no one is at fault”, there may well be a party that is, indeed, responsible and who should be compelled to fairly compensate the Plaintiff for injuries sustained.


Trip & Fall Cases: Unknown Cause | Brooklyn Personal Injury Attorney



Countering the “Open and Obviousand “Not Inherently Dangerous” Arguments

If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case.  It is ultimately not sustainable  to attempt  to  hold another party responsible  for one’s injury if the cause, attributable to that alleged  responsible party, is only based  on speculation.

Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”.  Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert.  A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect.  Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.

The apparent absence of a cause of an accident is common in “single step” cases.  A person falls down a  single step.  The  potential defendant argues the absence of liability both  because the step  was “open and obvious” and certainly “not inherently dangerous”.    Both of  these  positions are traditional grounds  for granting defendants “summary judgment” (dismissal) of lawsuits.  The presence of “warning signs”, advising passers-by of dangerous conditions, adds  substance  to  such  defense  positions.

It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous  slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect  a potentially moribund lawsuit.  What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in  both  paperwork and deposition testimony, to give support  to countering those defense positions.