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26 year old Rachel Fraulo of Westport, Connecticut recently commenced a “Liquor liability” lawsuit against an out of business Mount Kisco tavern, O’Malley’s, and its two owners in Federal Court in White Plains arising out of a serious car crash in January of 2009. She alleges that as a result of the accident, she suffered traumatic brain injury (TBI), permanent vision impairment, several fractured bones and neck injuries. The facts are as follows. At approximately 3:30 AM on January 11, 2009, Rachel Fraulo was a passenger in an automobile driven by her friend Brian Vittorini, 34, when the vehicle driven by Vittorini struck a guardrail at the end of the southbound exit ramp on I-684 in Katonah, adjacent to Route 35.

The suit charges that prior to the accident, Vittorini was visibly intoxicated after having consumed “dozens” of Jack Daniels and Coke cocktails at O’Malley’s. Under the New York State Dram Shop Act, if it can be proven that the bar’s employees served Vittorini alcohol after observing that he was “visibly intoxicated”, and he then drove while intoxicated and caused injuries to his passenger, the bar would have liability under the Dram Shop Act.

At the time of the accident, Mr. Vittorini refused a blood alcohol test, and the Bedford Police Chief determined that the accident was caused by a combination of speed, alcohol and failure to wear seat belts. Subsequently, Vittorini pled guilty to charges of vehicular assault and driving while intoxicated. Importantly for Ms. Fraulo’s case, those convictions can be introduced into evidence during a trial of the case, with obviously significant impact on a jury when they have to determine fault. Apparently, Ms. Fraulo previously reached an undisclosed financial settlement with the insurance company representing Mr. Vittorini. If a jury were to decide that Mr. Vittorini was primarily at fault for the accident, there would have to be a determination by the Court as to how this previous settlement affects any damages awarded by the jury. In sum, a plaintiff in a personal injury lawsuit is not entitled to receive what is called a “double recovery”, meaning that the plaintiff cannot get damages for the same injuries twice. However, the plaintiff is entitled to be compensated for all potential damages, including pain and suffering, loss earnings, lost earnings potential, medical and hospital expenses, both past and present, and “loss of enjoyment of life.”

In opposition to Ms. Fraulo’s case, the defense has undoubtedly asserted a “seat belt defense.” If they can prove, through expert testimony, that Ms. Fraulo was not wearing her seat belt at the time of the accident, and can demonstrate that some or all of the injuries suffered by Ms. Fraulo would have been avoided or lessened if she were wearing her seat belt, her damages will be reduced by the percentage of her own fault for failure to comply with section 1229-c of the Vehicle & Traffic Law, which mandates that seat belts be worn by drivers and passengers of motor vehicles.

The defense will further claim that Ms. Fraulo was also intoxicated, and should not have entered the vehicle with Mr. Vittorini knowing that he was intoxicated. It is unclear whether they will be able to prove this defense or not, but it can be particularly damaging if the jury is convinced that Ms. Fraulo was at fault for entering the car knowing that Mr. Vittorini was “visibly intoxicated.”

One other point which can be a significant issue in this case is whether O’Malley’s had a liability insurance policy which contained a provision for Dram Shop or Liquor Liability coverage. This type of insurance is very expensive, and in my experience, many bars and nightclubs do not carry Dram Shop insurance for that reason. If O’Malley’s did not have Dram Shop coverage, Ms. Fraulo also has a claim against the two owners of the bar, ostensibly to assert a claim against their assets if they were uninsured for the accident. I would assume that prior to commencing a case in federal Court, Ms. Fraulo’s attorneys have determined that either O’Malley’s has sufficient insurance coverage, or that the owners have assets to make the lawsuit worth pursuing.

The case has been adjourned to October of 2012 for trial of this action after a hearing this month. We will follow this case when it commences in October.

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On March 29, 2012, at approximately 2:30 AM, off duty Mount Vernon Police Officer Reginald Velez was killed when he drove his vehicle the wrong way on the southbound lanes of I-95 and his vehicle was struck by a tractor-trailer. An investigation of the causes of the fatal car accident by the NYPD continues, as does the local police investigation. It has been reported that prior to the 2:30 AM accident, Officer Velez had been to the Isla Verde bar in the Bronx, as well as to a local diner with friends, although it is unknown at this time whether Velez had anything of an alcoholic nature to drink at Isla Verde.

In recent years, there have been a multitude of wrong way accidents on Westchester Parkways and highways, most notably being the July, 2009 tragic accident involving Diane Schuler, who drove southbound in the northbound lanes of the Taconic Parkway with a blood alcohol concentration (BAC) of 0.18%, more than double the legal limit. Schuler was driving with her infant daughter, five year old son, and three nieces in the car. She hit a northbound vehicle head on, causing the death of the three men in the northbound car, her daughter, three nieces, and her own death.

Until toxicology results are obtained (most likely by mid May), it will be unknown if alcohol played any role in Velez’ untimely death. His fiancee has stated that she believed fatigue (due to many hours of overtime) was a significant factor in the accident. Further, a bartender at Isla Verde was quoted as saying that Velez “did not ask me for for anything and didn’t drink.” However, there is no question that the bar could face civil liability under the New York Dram Shop Law to members of Velez’ family (not his fiancee as she was not his wife at the time of the accident) if it is found that the bar served Velez alcohol while he was “visibly intoxicated” and that this intoxication led directly to Velez’ fatal accident. Therefore, the statements of the waitress must be considered within the context of the possibility of a possible lawsuit.

The NY City Medical Examiner concluded that Officer Velez died of blunt force trauma to his torso. Upon impact, Velez’ 2002 white Lexus sedan burst into flames. The driver of the tractor-trailer, who was uninjured, noted that he had no time to avoid the accident, which occurred near exit 11 on the northbound lanes of I-95.

We will report further on the release of the toxicology results.

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A Manhattan-based masonry contractor was fined $74,500 after a construction employee fell 80 feet from a scaffold in Brooklyn. The United States Department of Labor’s Occupational Health and Safety Administration (OSHA) cited Navillus Contracting Tile, Inc. for one repeat and six serious violations of safety standards in connection with a September 28, 2011 incident where a worker fell from the top of a 118 foot scaffold. The worker landed approximately 80 feet below the top of the scaffold on another construction level.

According to OSHA’s Manhattan Area Office, the masonry company failed to ensure the scaffold had guard rails in place, and the scaffold was not fully planked. Additionally, at the time of the incident an access platform was reportedly not secured and workers were not properly tied off to ensure their safety. Employees also allegedly climbed up and down the scaffolding frame in order to reach building work areas. Due to the conditions at the Brooklyn work site, OSHA proposed a fine of $36,000 for six serious violations. A serious violation is issued when an employer knew or should have known there was a high probability a safety hazard would result in a serious physical injury or death.

Navillus Contracting Tile, Inc. also received a repeat violation with a proposed fine of $38,500 for failing to ensure the scaffolding had guard rails in place. A repeat violation is issued by OSHA where an employer was cited for a substantially similar violation of a rule, regulation, standard, or order within the previous five years. The masonry company was cited for a guard rail hazard at another work site in September 2008.

Luckily, the worker who fell was not killed. According to OSHA’s Area Director for Brooklyn, Manhattan, and Queens, effective scaffolding maintenance rather than luck must be relied upon to protect construction site employees. Due to the nature of building sites, construction workers are faced with hazardous working conditions every day. Construction accidents tragically hurt or kill thousands of people each year. Although workplace injuries are normally subject to state workers’ compensation laws, a third party may be legally responsible for failing to implement proper and adequate safety measures. For example, construction contractors have a duty to inform workers about potential workplace dangers and take proper safety precautions. If you or a family member was hurt in a scaffolding accident or injured by another construction site hazard, contact a knowledgeable construction accident lawyer to learn more about your rights and options for financial recovery.

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A malfunctioning crane that unexpectedly dropped a load of steel beams in February will delay completion of Four World Trade Center by more than two months. The faulty crane, which was manufactured in 1976, was taken apart immediately following the incident and is no longer in service. For the time being, the building site operated by Tishman Construction will continue with only one working crane. Luckily, no one on the ground was injured in the accident.

The crane malfunction is currently under investigation by the Port Authority of New York and New Jersey. The New York City Department of Buildings notified crane operators of other FMC / Link-Belt TG 1900 cranes that all capacity loads should be reduced by at least 25 percent as a safety precaution until the cause of the accident can be determined. A crane with the same model number is currently in use at the Three World Trade Center building site. It was also tested after the incident despite the fact that its interior machinery was previously replaced.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) found no other crane deficiencies at the Four World Trade Center building site. After investigating the incident, OSHA was also purportedly satisfied with Tishman Construction’s safety program. A representative for Tishman Construction’s corporate safety division, Dwayne Carter, alleged that the company’s safety rules prevented a more serious accident. According to Carter, an access zone and alarm system is used to prevent personnel from getting too close to a crane’s drop zone while in use. Without proper safety protocols, the construction accident would have likely been tragic.

Construction employees are often faced with hazardous working conditions on a daily basis. Unfortunately, building site accidents tragically hurt or kill thousands of workers each year. Despite that workplace injuries are normally subject to state workers’ compensation laws, a third party may be held legally responsible under Section 240 of New York’s Labor Law if a worker is injured due to defective or inadequate safety equipment including ladders and scaffolding. The manufacturer of equipment used on a construction site may be held responsible for creating a defective or dangerous product. Contractors also have a duty to warn workers about potential safety hazards and take proper safety precautions. If you were hurt while working at a building site, it is a good idea to contact a qualified personal injury attorney to explain your rights and your options for financial recovery.

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Last week, Governor Andrew Cuomo announced a state initiative in a stated effort to curb purported no-fault fraud by “getting rid of deceptive doctors” and “shutting down medical mills.” The problem that Gov. Cuomo seeks to address is that some No-Fault doctors engage in fraudulent billing procedures, according to Cuomo, which reportedly results in “hundreds of millions of dollars in insurance costs to New Yorkers.” In order to implement this initiative, Gov. Cuomo has directed the Department of Financial Services (DFS) to issue a new regulation that will permit the Dept. to “ban doctors that engage in fraudulent and deceptive practices.”

Additionally, the initiative involves audits of 135 medical providers whose billing procedures “have raised concerns”, demanding information from these providers as to their corporate structure, payment requests to insurance companies, and the physicians’ participation in the medical practice (as opposed to businessmen). The providers who treat car accident victims will receive a form with fourteen days to respond. The failure to do so may result in the provider being banned from further participation in the no-fault system.

Further, in what would seem to be a lack of due process, prior to a hearing, a list of providers that are “suspected of no-fault fraud” will be sent to the Department of Health (DOH) and the State Education Department (SED) for their review. Then, DFS will conduct hearings. In my opinion, before making allegations and referring cases to these other agencies, DFS should conduct hearings first, but that is not the manner in which the State intends to operate. There is also the implicit threat that in “appropriate cases”, the DOH and SED will revoke medical licenses and decide whether criminal charges should be filed.

One of the primary motivations for the Cuomo initiative is the allegation that New York’s auto insurance rates are the 4th highest in the nation, specifically due to fraud in the No-Fault system. Interestingly, when the New York State Trial Lawyers (NYSTLA) introduced legislation before the New York State Assembly known as the “Sunshine Act”, which would require insurance companies to open their books, show their earnings, and prove whether no-fault fraud was the real reason behind the excessive premiums or just a ruse to raise premiums, their well paid lobbyists bitterly oppose this regulation. This is an issue Governor Cuomo should be exploring as part of his effort to stamp out fraud in the No-Fault insurance industry.

What Governor Cuomo’s initiative also does not address is fraud by the insurance companies in denying medical care to injured victims of car accidents. Let me explain. Back in 1974, when the No-Fault Law was implemented, the purpose of the law was to restrict auto accident claims with the provision that the victim would have to suffer a “serious injury” to have a legal basis to sue for his or her injuries. A “serious injury” under New York’s Insurance Law includes a fracture, disfigurement, dismemberment, loss of use of a body part or system, and non-permanent injuries which lead to a “substantial limitation” of one or more parts of the body. In exchange for the restrictions imposed on auto claims, no-fault insurance was to provide up to a minimum of $50.000.00 in medical and economic (lost wages) benefits to car accident victims.

However, car insurance companies have created a mockery of the original statute. Through their lobbying efforts, and their huge impact on the Court system, hundreds of thousands of car accident victims who have suffered torn tendons, ligaments, and spinal injuries such as herniated discs, routinely have their cases dismissed before they ever get to trial through motions by insurance company defense lawyers claiming that these injuries do not meet the “no-fault threshold.” This includes those who have undergone surgery to treat those injuries!

Further, those injured in car crashes must now submit to no-fault “IME’s” (“Independent” medical examinations), which consist of five to ten minute examinations by doctors hired and paid for by the very insurance companies that “are on your side…that you are in good hands with…”, who make findings as to whether injuries meet the no-fault threshold in these cursory, biased examinations. If the “IME” doctor determines that the person does not have a “threshold injury”, in short order they will receive a letter from the insurance company informing them that all further benefits are denied! To add to the ridiculousness of calling these examinations “independent”, the insurance companies all use the same doctors for these “IME”s, the ones who will reliably find that the victim needs no further treatment, can go back to work and their normal activities, and has no “serious injury.”

In sum, Governor Cuomo, if you want to combat fraud in the insurance industry, and do this in an even handed manner, explore the auto insurance industry’s practices when it comes to “IME’s” and investigate the true reasons behind the excessive auto insurance premiums in New York, in addition to the initiative to root out “medical mills.”

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In a story by Heidi Evans in the March 11, 2012 edition of the New York Daily News, it was reported that passengers in New York City taxicabs are suffering numerous facial injuries due to their failure to utilize rear seat belts. For some reason, many people (this writer included) seem to have a different perspective on car safety when they are in a taxi cab (ignoring seat belts) than when they drive themselves and are more vigilant about seat belt usage.

The issue is compounded by the fact that New York City cabbies frequently drive quite aggressively, make short stops, exceed the speed limit, pass on the right, and cut in and out of lanes. These dangerous maneuvers occur while the driver is attempting to avoid other traffic, bicyclists, pedestrians, and buses.

Pedestrians are suffering facial injuries after striking the glass partition, including broken noses, fractured teeth, abrasions and even brain trauma after a short stop or collision with another vehicle. The distance between the partition and the passengers can be no more than 16 to 19 inches, not much space when the taxi comes to a sudden stop. Rear passengers are routinely being treated at NYC emergency rooms after striking their faces on cup holders, sharp edged credit card machines, change cups and steel bolts.

Dr. Lewis Goldfrank, the chairman of the emergency departments at Bellevue Hospital and NYU Langone, walks to work each day rather than take taxis after observing the severe injuries suffered by taxi passengers he encounters in his daily experience. He states that the only time he noticed a reduction in injuries was at the inception of the TLC campaign airing recordings of Joe Torre, Ed Koch and other prominent New Yorkers reminding passengers to “buckle up.”

Cab drivers quoted in the article blame riders, noting that they are often oblivious, focused more on their smart phones than taking the time to put on their seat belts. Evans reports that there are 485,000 daily cab rides in New York City by 13,237 yellow taxis, with the vast majority being safe. However, a TLC survey reportedly reveals that 2 out of 3 rear seat passengers don’t use seat belts.

Mayor Bloomberg’s effort to create a uniform taxi fleet includes new taxis next month, which will be equipped with a purportedly safer partition, subject to federal crash testing for the first time. However, in addition to making partitions safer, and removing sharp objects such as credit card machines, cup holders and steel bolts, clearly there must be a renewed effort to ensure that passengers use seat belts if the hope is to improve safety in NYS taxicabs.

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The New York Senate Judiciary Committee has approved a bill which would prohibit physicians and other medical malpractice defendants from interviewing a plaintiff’s non-party, later-treating doctors in private. Senate Bill 3296-A is designed to overturn the 2007 New York Court of Appeals decision in Arons v. Jutkowitz that said a defendant in a malpractice lawsuit may interview a plaintiff’s physicians so long as federal Health Insurance Portability and Accountability Act (HIPAA) requirements are met. HIPAA requires a defendant to obtain consent from a plaintiff prior to interviewing a non-party doctor. The Judiciary Committee approved the proposed law with a 21-2 vote.

According to Senate Judiciary Committee Chair, John Bonacic, the holding in the Arons case “usurped the legislature’s authority.” In 2007, Judge Eugene Pigott expressed a similar sentiment in his dissent from the majority holding in the case. Joshua Cohen, President of the New York Medical Defense Bar Association, believes the proposed law is unfair to defendants. He argues private interviews are necessary in order to determine whether a plaintiff’s purported injuries are the result of a pre-existing condition. The bill’s sponsor, Republican Senator John DeFrancisco of Syracuse, has stated the legislation is fair as it protects a defendant’s right to question physicians at depositions.

The Greater New York Hospital Association strongly opposes Senate Bill 3296-A. The Association has alleged the new law would raise malpractice insurance premiums by as much as 6 percent or $96 million. In response, Senator DeFrancisco has stated it would be impossible to predict whether the bill would have any monetary impact or what that impact might be. An identical Assembly Bill 694-A was also introduced this year by Democrat Rory Lancman of Queens. The Assembly previously passed the measure on multiple occasions, including last year when the proposed law died in the state Senate.

Medical malpractice occurs when a doctor, surgeon, hospital, or other medical provider renders services that fall short of the local standard of care. Health care providers must exercise reasonable care in accordance with the prescribed standard of care for their profession. If a medical provider deviates from the accepted local standard of care, then he or she may be liable for any resulting injuries. Unfortunately, mistakes that could adversely affect an individual’s quality of life are sometimes made. If you were injured by a medical professional, a qualified medical malpractice lawyer can evaluate your claim and help to protect your rights.

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After an investigation by the New York City Department of Buildings, a determination has been made that the December 14, 2011 fatal accidenthttps://www.injurylawny.com/lawyer-attorney-1052470.html at 285 Madison Avenue in Manhattan involving 41 year old advertising executive Suzanne Hart was caused by a disabled safety circuit. The tragic elevator accident occurred at approximately 10:00 am last December 14th, when Ms. Hart attempted to board elevator 9 at 285 Madison Avenue in Manhattan on her way to work at Young & Rubicam, where she was employed as a director of new business. When Ms. Hart was partially in the elevator, the car suddenly lurched upward, and her body was pinned in the elevator shaft between the first and second floors of the building.

There were two passengers on the elevator when the fatal accident occurred. They were trapped in the elevator and required rescue workers to free them from the car. Transel Elevator Inc. had been servicing the 13 elevators in the building pursuant to an agreement with the owners of the building, Young and Rubicam. On December 11, 2011, two of the Transel employees disabled a safety circuit on elevator number 9 in order to perform upgrade work on the elevator. However, in a clear safety breach, the maintenance workers forgot to enable the circuit before placing the elevator back in service.

Apparently video depicts the two Transel employees leaving the building at 9:55 am on December 14th, and Ms. Hart stepping onto the elevator one minute later. The car apparently lurched upward with its doors still open. It has been determined that the workers bypassed the door safety circuit with a jumper wire.

Robert D. LiMandri, the Commissioner of the NYC Building Department, stated: “These workers and their supervisors failed to follow the most basic safety procedures, and their carelessness cost a woman her life.” The three safety violations according to city officials were:
1. Failing to re-enable the safety circuit after completing the upgrade;
2. Failing to post a sign that the work was being performed on the elevator; and

3. Failing to contact the Buildings Department to schedule a mandatory inspection prior to placing the elevator back in service.

Transel’s license has been suspended pending a hearing, where it is possible that the license will be permanently revoked. It faces 23 violations with minimum penalties of $117,000. Transel reports on its website that it services 2,500 elevators in New York City. There are approximately 60,000 elevators in the entire city and there were 43 reported accidents in 2011. After the Hart accident, the Buildings Department performed an inspection of 658 elevators in 169 New York City buildings, 370 of which were maintained by Transel. 135 violations were issued at that time, with 71 issued to Transel.

Since the accident, the building manager replaced Transel with PS Marcato to maintain the elevators in the building. Transel previously had many high profile clients including the Graybar Building, the BMW Building, Carnegie Hall, the Hippodrome Building and the Plaza Hotel. No lawsuit has been filed by the estate of Suzanne Hart as of the date of this article, but that certainly seems likely, particularly after the damning results of the Buildings Department investigation.

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In a report by the Governors Highway Safety Association (GHSA), which reviewed data for all 50 states and the District of Columbia, fatal accidents involving 16 and 17 year old drivers increased 11% for the first six months of 2011. This trend, if determined to be the same for the second half of the year, would end an 8 year period of decline in deaths of teen drivers.

Total deaths of 16 and 17 year old drivers during the first half of 2011 increased from 190 in 2010 to 211 in 2011. More specifically, there was an increase in 16 year old fatalities from 80 to 93, and an increase in 17 year old deaths from 110 to 118. There were increases in 23 states, 19 states had reductions in deaths, and 8 states along with the District of Columbia did not have a change in the first six months of 2010 and 2011. The states with the biggest increases in fatalities were Florida, Texas and North Carolina.

The increase in teen deaths is in contrast with data from the National Highway Traffic Safety Administration (NHTSA), which has released an estimate that total motor vehicle deaths in the first half of 2011 decreased approximately 0.9%.

The author of the GHSA study, Dr. Allan Williams, has attributed the teen driver fatality increases to a leveling off of the benefit of Graduated Driver Licensing Laws, now that these laws have been in effect for several years. Additionally, Dr. Williams points to an improving economy as another factor to the statistics, with more teen drivers on the road. The GHSA suggests ways to combat this disturbing trend, which include improvements in driver education, parental involvement in establishing safe driving habits for their children, and strengthening traffic regulations. One concrete and absolute measure is to absolutely prohibit the use of any hand held cell phone or electronic device while driving, which is already illegal in the State of New York.

For example, texting while driving is now a primary traffic infraction in New York State (meaning that the investigating police officer does not need to find another violation such as speeding or following too closely to issue a texting while driving ticket). Texting while driving now leads to 3 points on the driver’s license, and fines with surcharge of approximately $235.00.

Traffic deaths will generally rise in the second half of the year, due to summer driving, vacations, and holidays known for higher accident levels including July 4th, Labor Day, Thanksgiving and Christmas.

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Raymond Knox, the former owner of The Paddock in Patterson, New York, has commenced a federal lawsuit claiming false arrest and malicious prosecution arising out of a tragic fatal DWI accident case on Super Bowl Sunday in 2007 involving his bar manager. The background is that on February 4, 2007, Sandra Longchamps, an off duty bar manager at The Paddock in Patterson, New York, allegedly was served between 12-14 drinks, and then was a driver on Route 22 involved in a head on collision with a minivan operated by 34 year old Kirsten Henry. Ms. Henry’s husband and three children were passengers in the car. Both Longchamps and Ms. Henry died in the accident, and Henry’s three children and husband suffered serious injuries but survived.

Knox was convicted in a bench trial in Patterson, New York before Judge John King in March of 2008 of the misdemeanor charges of allowing Longchamps to be served alcohol when she was visibly intoxicated pursuant to New York State General Obligations Law Section 11-101, and allowing gambling in the tavern. The trial included testimony by the County’s toxicology expert Betsy Spratt, who reported that the autopsy results showed Ms. Longchamps’ blood alcohol concentration (BAC) to be between a 0.34 to 0.41%, several times the legal limit of 0.08%. Victim impact statements were read to the Court by members of the Henry family, and Mr. Knox was sentenced to nine months in jail.

Mr. Knox served approximately five months of the nine month sentence and was released for good behavior. In 2009, the Appellate Term in the 2nd Department (which covers local Courts in Putnam County and other lower Hudson Valley Courts, among others), reversed the conviction. Knox’ attorney had claimed that Longchamps was in fact drinking at another establishment that night, the Alpine Restaurant, and that the investigating officer, Sgt. Timothy Gannon of the Putnam County Sheriff’s Office, did not investigate this information. The attorney representing the County and Sgt. Gannon claims that Longchamps was never at the Alpine Restaurant, (he asserts that witnesses never saw Longchamps at the Alpine that evening), states that Knox was not denied any rights under the U.S. Constitution, and claims that Officer Gannon had probable cause to arrest Mr. Knox.

The New York Court of Claims, which has jurisdiction over all cases against New York State, awarded Mr. Knox $150,000 in 2011 for being “unjustly convicted and imprisoned.”

In the federal lawsuit, Mr. Knox claims that he never would have been arrested if the Putnam County Sheriff’s Office conducted a proper investigation, including speaking with all potential witnesses from the Paddock and the Alpine. He is seeking compensation for the five months that he was falsely arrested and imprisoned. Mr. Knox has also claimed malicious prosecution. In order to be successful on the malicious prosecution claim, Mr. Knox must prove that there was no probable cause to commence the lawsuit against him, that the lawsuit was commenced with malice, that the case was dismissed, and that he has suffered damages as a result of the prosecution.

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