A RECENT CASE

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.

The Occupational Safety and Health Administration reports that there are approximately 97,000 forklift related accidents per year, and 85 of those are fatal.

Out of the 85 deaths, approximately 35 were the driver attempting to jump out of a tipping forklift.

The OSHA laid down the basic requirements that all forklifts and other Powered Industrial Trucks must meet.

These requirements can be found at:
http://www.nycosh.org/workplace_hazards/Forklift%20Fact%20Sheet.html.

In addition to the safety requirements for the actual vehicles, proper training is required and additional training by the vehicle operator is highly recommended. This training can be found at http://www.free‑training.com/osha/forklift/forkmenu.htm..

If anyone was injured in a forklift accident either as a pedestrian or as an operator without adequate training, it is very important that a Personal Injury Attorney experienced with this type of matters be contacted as early as possible.

NOTICE OF CLAIM | MUNICIPAL LIABILITY | SPECIAL USE

Until 2003 the City of New York was primarily responsible for injuries incurred by individuals through cracks, potholes and uneven surfaces on City sidewalks. The primary responsibility shifted in 2003, through City Council legislation, that made the abutting commercial or residential landowners primarily responsible. However, in the case of one, two or three family homes, where those residences are at least partially owner occupied, and where the residence is used exclusively for residential purposes, the City of New York remains primarily responsible.

Nevertheless, even in those instances where the City of New York would be primarily responsible for accidents that occur because of sidewalk defects, the liability shifts to the homeowner if the cause of the accident was some item that was installed for the benefit or “special use” of the adjoining homeowner.

Defects in driveways are common “special use” situations. A water shut off valve, embedded in the sidewalk, has been held to be a “special use”.

Wisdom would dictate the service of a Notice of Claim on the City of New York even if a “special use” is anticipated. It simply cannot hurt, and failure to do so could be catastrophic if an incorrect assumption regarding a “special use” is made. Below I have added the legislation that shifts liability for sidewalk defects mainly from the City of New York to abutting landowners.

THE PERSONAL INJURY CASE WHY PERSONAL INJURY CASES TAKE SO LONG: Part I – PRE-INTAKE PHASE

From a purely business point of view, this phase of a case may well be the most crucial to the attorney. In the field of personal injury law, cases are routinely taken on a “contingent fee” basis. This simply means that an attorney will not earn or receive any fee for his work unless there is a successful conclusion to the case, and the client receives some amount of monetary compensation. It stands to reason, therefore, that the decision as to whether or not to accept a matter into the office is of vital financial importance to the attorney. Too many cases accepted, that end in a failure to obtain compensation, will lead not only to unhappy clients, but will also lead, eventually, to an abbreviated life span for that law office.

Through diligent and meticulous questioning, the experienced attorney will delve into various aspects of the matter being presented by the potential client.

Questions relating to time, location, parties involved, conditions at the scene, preceding events, injuries sustained, relationships of parties and myriad other questions are all designed to see first, whether there is a viable case and second, whether the case has the possibility of ending in a way that both the client and the attorney can view as “successful.”

Issues involving Statues of Limitations (legal time limits for bringing a case), Damages (injuries suffered), Liability (fault of each party involved) and Coverage (available funds from insurance or other readily available sources)are all of pivotal importance to the experienced attorney at the Pre-Intake stage. At The Orlow Firm we have been handling personal injury cases in New York City for over 30 years.

THE  PERSONAL  INJURY CASE: WHY PERSONAL INJURY CASES TAKE SO LONG: Introduction

One of the inevitable questions a new, or potentially new, client will ask is how long can he or she anticipate it will take until their case is finished.   The honest answer is seldom welcome: though cases have been known to finish in a matter of months, these are the very rare exceptions.  The client should realistically expect the case to last two to four years, with two and a half to three years being average!

It is fair for the client to wonder why a case should take so long.

The purpose of  the articles in this series is to make an attempt to explain why such a seemingly long time is needed to complete this task. At The Orlow Firm we want our clients to understand every aspect of their case. While the explanation may not alleviate the distress at the long haul involved, it will, hopefully, clarify the reasons and thereby give the client a basis for seeing at least some benefit to this lengthy time factor.

Our New York City Personal Injury Attorney series will begin with the “Pre-Intake” phase, followed by “The Intake”, “Beginning Litigation”, “Discovery” and then “Settlement or Trial”.

Are Strip Searches Allowed in New York Schools?

Increasing violence and other illegal activity occurring in our schools has seen the proliferation of “ZERO TOLERANCE” policies in many New York schools and in entire school districts around our nation. These policies, of necessity, very often involve the search of a student by New York school officials who seek to find out if the prohibited item, whether a weapon or an illegal drug, is in the student’s possession.

The question arises as to when such a search is permissible and, even more seriously, how intrusive may that search become. In June, 2009, the United States Supreme Court decided a case involving a 13 year old school girl (Susan). Another student had accused Susan of giving her drugs. The suspicion was that Susan had brought prescription strength ibuprofen to school. School officials (two females) ordered Susan to strip to her underwear, and then pull her upper and lower undergarments away from her body to see if the suspected drug was on Susan’s person. The judge that wrote the opinion for the court called this search an “…embarrassing, frightening and humiliating search…..” The decision of the Court did not give school officials a clear cut guideline to determine if a strip search is permissible. It rather set forth some guidelines that may well continue to make it very difficult for school officials in the future to decide whether or not a strip search would run afoul of the law. The guidelines the Court seemed to establish as factors:
–the extent of the danger of the contraband in question (for example: ibuprofen vs. heroin);
–how well founded is the suspicion that the contraband is hidden in an intimate place.

As Justice Souter wrote in deciding that this particular search was Constitutionally ILLEGAL:: “The content of the suspicion failed to match the degree of the intrusion” especially in light of the “nature and limited threat of the specific drugs.”Some school districts, such as the New York City Department of Education, simplify matters and ban such strip searches under any and all circumstances. Do keep in mind that as far as searches in general (not just strip searches) are concerned, the Constitutional requirements to allow a search by school officials (“a moderate chance of finding evidence of wrongdoing”) are LESS demanding than those that must be followed by the police (“Probable Cause”). Even an attempt to simplify this area of law, as we tried to do here, indicates the potential complexity involved when dealing with searches of all kinds. The services of a well seasoned New York City attorney, knowledgeable through experience in this difficult area of law, at as early a stage as possible, is invaluable in protecting your rights.

LADDER ACCIDENTS

As Construction Accident Attorneys in New York City, We see may different causes, but ladder accidents are significant. According to the Consumer Product Safety Commission there are over 164,000 visits to emergency rooms annually caused by ladder accidents.  Other sources quotes figures of over 500,000 such visits each year.
In an effort to make everyone aware of the root causes for these many injuries, here is a list of the most frequent reasons ladders cause accidents, in order of  frequency:

–Forgetting the rung position on the ladder while descending;
–Carrying materials while ascending or descending the ladder;
–Climbing without three points of contact on the ladder;
–Choosing the wrong ladder for a task;
–Not securing the ladder base to secure footing;
–Positioning the ladder on unstable surfaces;
–Working outside the ladder footprint;

Please pay careful attention to these cautionary tales of ladder accidents. We have helped many people recover substantial amounts after being injured in construction accidents, but no amount can make up for the loss of life or limb. Ladder Accidents Are Too Common. Don’t Allow yourself to be a victim. If you have been, consult an experienced attorney.

This question is not as simple as it may sound.   Under most circumstances, if you suffer an injury and another person shares some or all of the blame, then a lawsuit against that individual seems clearly your right.   It does not necessarily work that way in motor vehicle accidents in New York State.

New York State has made a tradeoff.   Regardless of whether or not and individual is responsible for a motor vehicle accident that occurred, that individual will be entitled to payments for his/her medical costs and lost  wages, and some other expenses as well.  For  passengers in vehicles, these expenses will be paid  by the insurance company of the vehicle in which you find  yourself.   Since “fault” is not an issue, these payments are known as “NO FAULT” coverage.

However, in return for this guaranteed payment for medical expenses and lost wages, the traveling public had its right to sue curtailed !   A person may only sue if the injury he/she sustained is a “SERIOUS INJURY”.

What is a “SERIOUS INJURY”?   That is an injury that is defined by the statute.  It can be specific: any fracture (broken bone) meets the requirement–or as lawyers say, it meets the “threshold” permitting a person to sue.  More troubling, the acceptable injury may be much  more vague (see below).   What is clear is that injuries that are passing in nature, and do not involve significant permanent damage, will probably not meet the “threshold”.

Here’s the problem. If a person sues regardless of the seriousness of his/her injury, and the party being sued asks the court to throw out the case  because the injury is not serious enough, the court has the right to “dismiss” the case if the judge decides the “threshold” is not met..   And this can happen a year or two after the case has begun, at which point a significant amount of time, effort and expense has been invested in that case, which then is all lost !

Bringing a lawsuit always requires an car accident attorney well versed in the field of law involved.   This is certainly true in a case involving such a potentially confusing area as MOTOR VEHICLE ACCIDENTS.

Statutory Definition of “Serious Injury”

“Serious injury” means a personal injury which results in 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 of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Posted by New York City Injury Lawyer Steve Orlow

Accidents are never a pleasant experience, but little can be as frightening or leave as indelible a traumatic scar as having faced an assault, or even worse, a rape, especially where you live.

If this should occur on the street or in your private home, there may be little recourse for you in any attempt to recover financial compensation. Unless there are truly extraordinary circumstances (for which an experienced personal injury attorney should be consulted) the likelihood of recovering money compensation is slight, if it exists at all.

In the event the attack occurred in an apartment building where you reside, then there may well be grounds for you to seek monetary compensation for many of the consequences that flow from the attack. If the landlord of the building allowed conditions to exist which made the act of the criminal more likely to occur, then the landlord may be held accountable.

The most common failure on the part of the landlord involves building security. It can involve something as simple a broken door lock, or perhaps an inoperable intercom system. Perhaps the front doors of the building operate perfectly, but a rear door or the door to the roof are left open. Any item that increases the ability of a criminal to enter the building, and thereby perpetrate the violent act, can very possibly subject the landlord to a lawsuit.

With this in mind, it would not be the landlord’s responsibility if another tenant, or any other person with legitimate access to the building, were the person who committed the crime. It would also be necessary to show that any deficiency in building security was known to the landlord, or existed for such a long period of time that the landlord should have known of the deficiency.

The issue of whether a landlord is or is not responsible is of overriding importance and must be discussed with an experienced attorney to be certain the victim in such a terrible crime receives any and all appropriate compensation . Do NOT leave it to guess work!

Should  an  “undocumented  alien”  bother to bring a lawsuit should  he/she be injured?

It is clear that millions of persons in our American workforce are present in the United States without proper documentation. As any other worker, these individuals are subject to dangers in both the workplace and in pursuit of their everyday lives.

If any person institutes a lawsuit, there are several areas of loss that go into determining the “damages” that resulted from that injury. The major areas are “pain and suffering”, out of pocket expenses such as medical expenses and often, most significantly, loss of income, past and future.

To begin with anyone, documented or not, may bring a lawsuit. The status of an individual in New York is not relevant at all when referring to “pain and suffering” or “out of pocket” expenses. The fact that someone is “undocumented” does not in any way disqualify that person from bringing a lawsuit, whether work related or otherwise.

The difficulty arises with respect to past and future wages and income lost by that person . The argument was presented that if someone is theoretically disqualified from working because they do not have the proper documentation, then how can that person make any claim for wages lost as a result of an accident that prevents them from working.

The question is a valid one. Those arguing against permitting the recovery of lost wages say that to permit recovery would undermine the immigration policies of the United States since it would encourage aliens to continue to enter the United States, even without proper documentation, and enter our workforce.

New York’s highest court, the Court of Appeals, on Feruary 21, 2006, decided that undocumented aliens COULD NOT BE BARRED from recovering lost wages in a lawsuit. The court said that to do otherwise would only reward employers for hiring undocumented aliens and would actually encourage employers to hire more undocumented aliens.

One big warning: If it can be shown that the injured employee obtained their job through deception and fraud, then that person will not be able to obtain their lost wages. This makes sense because the employer, when hiring the employee, thought the person was “legal” and only hired him/her because of the fraud. There was no intent by the employer to reap a benefit from hiring an undocumented alien.

Whether you are “undocumented” or not, it is very important to contact a competent injury attorney with experience in dealing in these matters, as soon as possible, in order to protect all your rights and interests.

Posted by New York Injury Attorney Steve Orlow