Central New York Injury Lawyer Blog

lavernLavern Wilkinson was a thirty something year-old single mom with mild chest pain. Being of a cautious nature, she thought to get the chest pain looked into. This eventually brought her to Kings County Hospital in New York City for chest x-ray. The results, she was told, were just perfect. Go home. Nothing to worry about.

Two years later, with more significant symptoms, and with the aid of another x-ray, she was diagnosed with advanced lung cancer. It had spread to other organs. She was terminal. Her doctors then looked back at that old x-ray and saw a nodule in its early stage. It was plainly visible. At that stage, it could have been easily removed surgically. She could have been cured.

Now, though, it was too late. But it was not too late – she hoped – for a lawsuit. After all, she was a poor single mother with an autistic 15 year-old daughter who was about to become motherless. Her daughter would need the compensation Lavern was entitled to. Her case, she figured, was a slam dunk.

When she went to see a New York medical malpractice lawyer, she learned her case was indeed a slam dunk. But not for her. For the hospital that had given her the death sentence. It was too late to sue.

What!?

Yes, the Statute of limitations for suing the municipal hospital was only a year and 90 days from the date of the malpractice. The time to sue was already long gone when she was told that the hospital had made a mistake two years earlier.

But wait! Not fair! How can that be? She didn’t stand a chance!

All true. New York’s law medical malpractice statute of limitations is totally unfair, especially when compared to the other states. Lavern learned that forty-four of the fifty states have a “date-of-discovery” rule for the statute of limitations in medical malpractice cases. In those states, the statute of limitations doesn’t even start to run till you learn of the malpractice. If New York had such a law, her statute of limitations would not have even started to run until she was told that that the nodule in the earlier x-ray had been missed. She would have had plenty of time to sue.

Lavern, with lots of help from many fair-minded people, lobbied to change that awful law, to make New York join the other 44 states that have a “date-of-discovery” rule in malpractice cases. They pushed for a law – “Lavern’s Law” – that would have enshrined the date-of-discovery rule in the New York code.

Unfortunately, Lavern died before she could see the Bill named after her come up for vote in the New York legislature. It passed in the Assembly with overwhelming bipartisan support. It got the Governor’s support. It had enough support to pass even in the conservative Senate. But then, like Lavern herself, it died. The Senate majority leader, John J. Flanagan, a Republican, wouldn’t allow the bill to even go to a vote in the Senate.

He single-handedly killed it.

But not quite single-handedly, really. A rational person does not vote a just law down without a motive. His motive was to fill his campaign coffers so as to ensure his future in his powerful Senate seat. A crowd of well-healed lobbyists from the health, insurance, and medical industries – who had and would continue to fund his campaigns – egged him onto kill Lavern’s Bill. These men and women – if they have a soul and a conscious — (I am told they do) must know full well that the current medical malpractice statute of limitations is harsh, unfair, and a travesty of justice. But they don’t care. Their job – their raison d’etre — is to crush any legislation that might enable medical malpractice lawsuits of any kind.

Now Lavern and her Law are both dead. And neither died of natural causes. Both were both killed – one through negligence and the other by murder.

Thank you Senator Flanagan and the lobbyists for your fine work.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central & Syracuse NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

medinaI love traveling to far flung places, and when I do I like to penetrate deep into the places’ streets and culture. Speaking several languages (English, Spanish and French) helps me delve into the culture and mindset.  But there are some things I never really “get” when I am abroad.

Take my recent trip to Morocco.  Lovely country. Stunning landscape.  Beautiful labyrinthine old walled cities (“Medinas”), home to mile after mile of colorful scent-laden souks and open market stands displaying gorgeous hand-crafted silverware, carpets, foods, spices, exotic dresses, handmade crafts, and zillions of other cool stuff. Gorgeous!

But as a humble Central New York injury lawyer, there was something more compelling that drew my attention — indeed my extreme caution:  Motorcycles.  They drove through the narrow crowded streets brushing by people and stalls as if they were slalom ski gates.  I was afraid that if my wife or I took just one small step left or right while admiring the goods in the stalls, a motorcycle from behind would bowl us down.  And, according to my Marrakesh taxi driver, that’s not an infrequent occurrence.  Marrakesh’s Medina produces on average 10 motorcycle-on-pedestrian collisions a day!

Just look at this youtube video and see what I am talking about:

Here’s what puzzles me:  Why do they put up with that dangerous situation?  Why don’t they outlaw motorcycles in the Medina? The topography is flat so bikes work just about as well, with far less risk.
My guess is they don’t have a vigorous tort law system like we do over here.  No insurance required for the motorcycles.  No personal injury verdicts to dissuade would-be motorcyclists. It’s pure legal bedlam.
So, Morocco, you’re a nice place to visit, but I wouldn’t want to live — or die — there.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

craneBack in 2008 a crane collapse in New York City made headline news. The huge tower crane had plummeted from an impressive height in a densely populated area of the city, causing unprecedented human and property destruction.  The case was of special interest to me as a Central New York construction accident lawyer.  We don’t usually have cranes that big up here, but the dangers and risks of construction work are similar.

When something like that happens, you know someone was careless or negligent. A crane does not collapse without a reason. Someone failed to build it right, or to maintain it, or to use it properly. The only real question is who.

Usually in a case like this, several possible culprits point fingers at each other (the manufacturer, the maintenance service company, the operator, etc.). This case was no exception. The owner of the crane pointed toward the crane operator for hoisting a load that “was too heavy”. The operator – who was one of the injured plaintiffs — blamed the crane owner for repairing the crane with a defective bearing he knew or should have known would eventually fail.

As in many cases, at trial a “smoking gun” made an appearance: an email sent from an official at the Chinese company to one of the crane owner’s employees which said they “could not stand behind the safety of the bearing” and that “we don’t have confidence on its welding”. The jury concluded that the owner knowingly used a faulty bearing to repair the crane, putting at risk the workers and the public.

As in so many construction cases, the at-fault defendant who caused the injury, damage and death was motivated by greed. He bought the known defective bearing from the Chinese company to save money.

Thankfully, justice was rendered. After one of the longest civil trials in New York history (110 days), the jury awarded the families of the two plaintiffs who brought this suit more than $48 million for their economic losses and pain and suffering.  Then, the jury added “insult to injury” to the defendant by awarding another whopping $48 million in punitive damages to the plaintiffs. (Punitive damages are very rare in construction accident cases and are allowed only to “punish” very reckless behavior such as this).

Martin Luther King Jr. once famously said, “injustice anywhere is a threat to justice everywhere”.  Well, I’d like to think that justice anywhere — even in a New York City courtroom — rings out for justice everywhere.  Greedy construction operators beware!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central and Syracuse NY Construction Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

monkey

I blogged about this case before when the judge granted the monkeys a hearing.  But I find it fascinating and wanted to post an update.

In a case watched closely by animal rights activists, a State Supreme Court judge in Manhattan recently denied a petition by a not-for-profit animal rights group seeking to free a pair of chimpanzees, Hercules and Leo, being held at a state university on Long Island.

The petition sought a writ of habeas corpus (a time-honored process of challenging imprisonment as unlawful) for the chimps. The group argued that the animals are so genetically superior to other animals and so similar to humans (they share 99% of DNA with humans) that they should be deemed “human” at least to the extent that they should not be locked up without good cause. Expert affidavits were submitted attesting to the monkeys’ language prowess, intelligence, and personalities.  Among other human-like traits, chimps have a keen sense of self-awareness (they recognize themselves in a mirror).

The judge reviewed all this evidence with a sympathetic eye, but in the end refused to smash the wall of existing case law, which says animals have no “rights” other than to be free from unnecessary mistreatment or abuse. The judge concluded that chimpanzees – no matter how intelligent and human-like – “are considered property under our law”.

The judge was not, however, unsympathetic to the plaintiffs’ position, and noted that one day monkeys may win their freedom: “Efforts to extend legal rights to chimpanzees are understandable and some day they may even succeed.”

So stay tuned!  We at Michaels & Smolak welcome new clients — even monkeys — as long as they have legitimate claims recognized by the law.  We’ll deal with how to dress them for court when the time comes . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

lady justiceThey say that justice is blind, but anyone who believes that is truly blind. Examples of inherent bias in our judicial system abound. For example, blacks get the death penalty and heavy sentences far more often than whites for the same crimes. Poor people – who can’t afford a “dream team” of lawyers and instead rely on assigned counsel — have far less success in court than their wealthier “lawyered up” counterparts.

And unfairness does not plague just our criminal justice system. Our civil justice system is also contaminated with it. Although statistics are not available locally, it is common belief among the local bar in Central New York that if you are black, poor, excessively overweight or just plain ugly, you are likely to get a smaller money award in your New York personal injury or medical malpractice case than if you are white, well-off, thin and good-looking. That’s why most competent personal injury trial lawyers will talk to a jury – in the jury selection process – about these prejudices, and try to weed out of the jurors who are more likely affected by them.

Like it or not, judges and juries are just regular people with regular prejudices. But courts – and your lawyer – nevertheless have a duty to try to combat them – to even out the scales of justice. A recent case illustrates this.

In the case, a small child ingested dangerous amounts of lead paint that was chipping and peeling off the walls in the apartment his parents – obviously poor – were renting from the defendant landlord. The child ended up severely brain damaged, which virtually assured him of a future in very low income jobs. His brain was too deteriorated to obtain higher education. Even graduating from high school was going to be a challenge. His future? MacDonald’s or Burger King, take your pick.

The jury held the landlord liable for not remedying the pealing/chipping lead paint condition. The jury awarded the child $2 million for lost future income. The jury found that – but for the lead paint – the child would likely have carved out a better future than just serving up fast food fries.

But the landlord sought to reduce the verdict because the kid was Hispanic. He argued that Hispanics statistically earn less than whites and thus the child was likely going to end up at the bottom economically anyway – even if he had not suffered brain damage from lead paint. He even tried to get an expert to testify that this was so.

The judge decided that statistics based on the ethnicity (in this case, ‘Hispanic’) of a child cannot be relied upon to reduce damages in a tort case. Instead, the jury must look only at the child’s family and environmental situation without regard to his race: Are his parents well educated? Are they intelligent? What kind of jobs do they have? How was the child doing in school before he started experiencing the effects of lead poisoning? All these are legitimate factors to consider. But arguing that the boy was likely to earn less because he was Hispanic was found to violate the Constitution’s equal protection and due process clauses.

Strike one up for blind justice, at least in my view . . . ..

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

carcrash-thumb-300x199I have blogged about the new driver-less automated cars before, and how they will dramatically reduce car crashes and fatalities. This future is not far off. The first true self-driving vehicles are expected before the end of the decade. A fleet surpassing 50% of all vehicles on the road could be here within 20 years.

We will be much better off with them for sure! But what I never really considered – until I read a recent article – was the profound effect driver-less cars will have on our economy. That’s what I’ll consider in this blog post.

To recap about driver-less cars, human driven cars will soon be going the way of the horse and buggy. An automated self-driving fleet of vehicles will almost certainly replace the current human-driven one within the next 25 years. The new fleet will have many advantages over the present one, but one of the most notable is that they will hardly ever crash. A study by the Center for Automotive Research (CAR) predicts that a self-driving fleet could eliminate 93 percent of crashes attributed to human error. This means, among other things, that we will be able to drink ourselves senseless without worrying about criminal penalties of “driving” drunk.

This crash-less, driver-less new world will have a more profound effect on our economy than almost anything since the personal computer. Many industries that are now dependent on car crashes will either disappear or be decimated. Car insurance? You probably won’t need it, or if you do, it will be very cheap because insurers will not have to worry about crashes. Emergency rooms and trauma treatment facilities will also slim down. Auto sales will plummet because we will not likely “own” our cars. Instead, apps on our smart phone will allow us to flag a nearby self-driving vehicle to our home which will, with the click of a few buttons, deliver us to our destination. Uber CEO Travis Kalanick says that if truly functional autonomous car are built, he’ll buy every one of them. This of course would benefit Uber but not the Uber drivers or the taxi industry.  The cost of transportation will be a fraction of the cost of what it is now.

Other sectors of the economy that will “suffer” from self-driving cars are:  Driving industries (truck drivers, taxis, etc.), car rentals, body shops, towing services, traffic enforcement, lawyers, emergency services of all kinds, court employees.

Because fewer cars will be needed, we will also likely see a decline in other industry sectors such as steel, aluminum, precious metals, oil. The federal, state and municipal bureaucracies that exist to serve the automobile would also likely get smaller.

And central New York car accident lawyers like me will all but disappear.  That’s OK with me – I can transition to other lines of law easily.  I’ll just take a “crash” course in business law!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Car Accident Lawyers
Michaels & Smolak, P.C.

 

1-315-253-3293

best lawyersModesty gets you nowhere.  Sometimes you have to toot your own horn.  (Just ask Donald Trump . . .).  And today we are doing just that:

We proudly proclaim that all four Michaels & Smolak Lawyers – Lee Michaels, Jan Smolak, Michael Bersani and David Kalabanka — were selected by their peers to be listed in a national directory of top-rated attorneys, “Best Lawyers in America”, for 2016. They were listed in the categories of “plaintiffs’ personal injury law” and “products liability law”.

The inclusion in Best Lawyers is limited to the best of the best — based entirely on peer-review (lawyers rating lawyers). According to the Best Lawyers publishers, the way they select lawyers to be listed

is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.

The American Lawyer magazine – one of the nation’s preeminent law magazines – describes the Best Lawyers directory as “the most respected referral list of attorneys in practice.”

The Michaels & Smolak team makes up 4 of only 17 lawyers in all of Central New York listed in “Best Lawyers” for personal injury law.

Why should our clients care about this rating?  Our reputation alone – regardless of the skill we actually possess – can and does influence settlements. Insurance adjusters and defense lawyers are more likely to pay more to injured people represented by well-reputed lawyers.  And besides, the “Best Lawyers” rating is — on our opinion — not just a fancy, flashy veneer.  The reality is that we are darn good at what we do!

Give us a call and find out more.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyers (“Best Lawyers”!)
Michaels & Smolak, P.C.

1-315-253-3293

 

truckJust read a New York Times op-ed piece titled “Trucks Are Killing Us”. As Syracuse NY trucking accident lawyers, we already knew that. And we also knew that truck-accident fatalities are increasing at the same time as car fatalities are decreasing. That’s because trucks are getting bigger and heavier, and their drivers are not getting any better. And that puts all of us who are on the road in danger.

We’re on the road – so to speak – to a major national trucking accident crisis. And what is congress doing about it? Making matters worse! Here are some of the things Congress has done according to the article:

  •  trimmed back well-considered safety improvements ordered by federal regulators, including, for example, a rule that allowed truck drivers to work only 70 hours a week (the new rule allows for 82 hours);
  • eliminated the two-day required rest for truck drivers each week;
  • discouraged the Federal Motor Carrier Safety Administration from investing in wireless technology that would allow closer monitoring of drivers and their vehicle;
  • signaled its willingness to allow longer and heavier trucks despite widespread public opposition;
  • signaled it wants to lower the minimum age for drivers of large trucks that are allowed to travel from state to state to 18, from 21.

Why is Congress doing all this? The answer is $.  That’s right, moola.  To be more specific, trucking industry lobbying money.

The trucking industry, through its chief trade group, the American Trucking Associations, insists that safety-rules are costly and will destroy profits, raise rates for shippers and, ultimately, consumers. That’s not totally false – safety does cost something, and the cost has to be passed on to all of us somewhat. But by the same logic we should abandon seat belts and airbags in our cars (and by the way, trucks have no airbags and that’s because the trucking industry has lobbied against having to provide them!). Eliminating seat belts and airbags in our cars would bring down the cost of the car. Why is “safety first” the rule of the road for cars but not for trucks?

Again, it’s all about money.  Trucking industry money.  It’s a huge business.  Almost everything in your home got to your neck of the woods by means of a tractor trailer.  Meanwhile the death toll in truck-involved crashes rose 17 percent over the last 5 years while car crash fatalities have gone down 3%. Cars are getting safer while trucks are getting more dangerous.

I guess I can’t complain.  More truck-related accidents means more business for me.  But jeez, there has to be a better way to make a buck . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

 

 

 

boatingAt Michaels & Smolak, we’ve seen our share of drowning cases. Usually they involve children too young to know how to swim. In fact, besides car accidents, drowning is the leading cause of death for children under 12 years old.

Cars have seat belts, and there are helmets for bikes, but what is there to protect children and others from the dangers of drowning? Life jackets you say? What child wants to wear those bulky things on the beach or near the pool? Enter “Kingii“.  It looks like a large bracelet.  It sports a rectangular pouch loaded with carbon dioxide. It weighs less than five ounces and is about the size of a smartphone.  It costs only $79.  In trouble in the water? Just tug on the bracelet and – voila – a CO2 cartridge inflates a hidden orange flotation device.  This device works well for both children and adults.

Check out this video to see how it works:

<iframe src=”https://www.indiegogo.com/project/kingii-the-new-standard-in-water-safety/embedded” width=”222px” height=”445px” frameborder=”0″ scrolling=”no”></iframe>

Another new tech device, aimed at children, called a  iSwimband ($40), is also a great idea.  It consists of a wireless sensor worn on the wrist or as a headband that pairs with the parent’s smartphone to sound an alarm when the toddler comes into contact with water or when a child stays submerged for too long (depending on the setting you choose).

These newly minted devices can’t replace old-school swimmer safety measures, like watching your child and the buddy system, but they do add an extra layer of protection that most people — especially parents — won’t want to miss out on.  Don’t miss out!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

dogI have a love/hate relationship with dogs. I love my dog, but I hate dogs who chase me on my bike or who snarl at me on my runs. When I go bike riding out on the country roads near Geneva, NY where I live, I even carry a small pepper spray canister to defend myself from man’s best friend.

Yes, I protect myself from “unleashed” dogs.  But unfortunately, New York State negligence law does not.  Believe me.  As a NY personal injury lawyer who handles dog bite / attack cases, I know first hand!

The problem in New York – unlike in other states – is that to hold a dog owner liable for injuries, you need to show the owner knew or should have known the dog had “vicious propensities”. If you do, the owner is “strictly” liable to you for your injuries.  That’s all well and good where a dog with a history of biting or attacking bites you, but not much else.

For example, consider this situation: A nice, friendly dog, who has never bitten anyone, is negligently released by its owner onto a busy roadway and darts out into traffic or into a bicyclist, causing an accident. Shouldn’t the injured victim be able to sue the dog owner for his negligence?

Almost two years ago I blogged about a case called Doerr v. Goldsmith where a New York Appellate Court (the First Department) was confronted with those same facts. The five judges voted 3-to-2 that, even when a dog doesn’t have a “vicious” bone in his body, negligently releasing a dog near traffic can be grounds for liability.  I loved that ruling!  That’s why I blogged about it.

But that lovely case has now been undone. Just the other day, the Court of Appeals – the highest Court in New York State – reversed the Appellate Court’s ruling, holding that dog owners cannot be liable for negligently handling or releasing their dogs into traffic. To sue the dog owner, you must show the dog had vicious propensities the owner knew or should have known about, and that this viciousness caused your injuries.  Period!

This is a big disappointment for bicyclists, motorcyclists and even regular motorists. And the rule makes no sense, especially in light of a recent case from the same court (Court of Appeals), Hastings v. Sauve, which held that an owner of a cow – or other farm animal — can be liable for negligently allowing the cow to roam onto a road and cause an accident. Obviously, the cow is not vicious, but still the owner can be held liable. So why not the same rule for dogs? Why can’t a dog owner be held liable for allowing its dog – even a friendly non-vicious one — to run loose and cause a car or bike accident?

The rule just seems so unfair in so many ways. For example, if two people are playing “catch” with a ball near a busy street, and the ball strikes a cyclist, causing him to fall, the players can be held liable for negligence. But if those same players send their dog running across the street, and the dog causes an accident, they can’t be held liable. Does that make sense?  Of course not.

Our Court of Appeals usually gets it right, but this time they certainly did not.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293