January 8, 2012

"Aggressive" Lawyers Are Often All Smoke And No Fire, Says Central NY Injury Lawyer

HomePagePhoto.jpgAlthough I am a New York personal injury lawyer 95% of the time, every once in a while I let myself get talked into representing a plaintiff in a non-injury case. Usually it is to sue for breach of contract or something like that. Recently, I had a three-day bench trial (that means it was tried before a judge rather than a jury) on such a case.

My opponent was an ass. He made lots of useless objections, shouted and screamed a lot, and had a very sarcastic tone during his cross-examinations. He never smiled and he had a permanent scowl on his face. He looked mean. This particular lawyer has a reputation for being needlessly aggressive, unlikeable, and unkind. Other lawyers I have talked to about him do not think he is good or effective --- he is all smoke and no fire.

He has a steady stream of clients, though. Most of them men are of a certain type. They are the kind of men who have big aggressive dogs. This lawyer is, apparently, some kind of bulldog for them.

When we finished the trial, I thought I had probably won, but the judge wanted to "reserve", meaning he would write a Decision later.

Three weeks later the Decision arrived. I had won. My client got all the money he had sued for, plus interest. I called him and told him the good news. His response? "I can't believe we won ---- that other lawyer was so aggressive! I thought he had beaten us!"

Moral of the story: Being needlessly mean and "tough" in the courtroom may impress some clients, and even the other lawyer's clients. But that's because non-lawyers' impressions of what good lawyering is comes from TV shows. In the real courtroom, good lawyering means being smart, skillful and persistent -- and being likeable can't hurt, either.

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

January 4, 2012

CNY Injury Lawyer's Letter To Insurance Adjusters

lawyer & client.jpgDear friendly insurance adjuster:

Thank you for your recent letter requesting permission to take my injured client's "recorded statement" regarding the accident your insured so carelessly caused. As a Central and Syracuse New York personal injury lawyer, I appreciate all communications with insurance adjusters that might help me resolve my clients' claims. My response is a conditional "yes". I will allow you to take my client's recorded statement only if you allow me to take your insured's recorded statement.

I really doubt, though, that you will agree to this absolutely fair proposal. I have proposed this same "swap" hundreds of times to many different insurance adjusters from all kinds of insurance companies, including yours. So far, no insurance adjuster has agreed to it. They all want to take, but not to give. Haven't they ever learned that it is better to give than receive?

If I were to ask you why you want to take my client's recorded statement, you would say (as all adjusters have always said since the mother of all adjusters first walked the planet) that this will help you "adjust" the claim, that is, figure out how much it is worth so you can settle it with me. (You would emphasis this last phrase). Gosh, that really makes me want to give you that recorded statement!

But the fact that you want a "recorded" statement rather than just an unrecorded conversation with my client indicates to me that you have other purposes. You want to "box in" my client so that your lawyers can later cross-examine him if his later testimony is even a little inconsistent with the recorded statement.

Even so, I really have no problem with this. I am not afraid of what my client might say, since he is an honest, injured client with a legitimate claim. What I do have a problem is the one-way street you insurance adjusters always pave. What's good for the goose is good for the gander, right? Taking a statement from your insured, who caused my client's injury, would also help me "adjust" the claim, that is, figure out how much we should be willing to take in settlement.

Don't take this personally, but you insurance adjusters, though you are often fine people otherwise, have a blind spot for simple fairness.

I am hoping we can settle this case for a fair amount even without recorded statements. But if we can't, I'll see you in Court. In that arena, we will both get to hear the "recorded statements" (sworn testimony recorded by the Court reporter) of both your insured and my client. It will be a fair swap!

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

January 2, 2012

Central New York Personal Injury Law Firm's Good Deed For 2011: Michaels & Smolak Helps Save "Camp Rotary".

Thumbnail image for Thumbnail image for scouts.jpgNothing brings Auburn and Cayuga County, NY, together like an attack from outside forces. Just as the ancient Greek city-states came together to fend off attacks from their ancient common enemy, Persia, all of Auburn and Cayuga County recently united to fend off an attack by the National Texas-based Boy Scouts of America. And Michaels & Smolak is proud of its role in that battle. Here's what happened, and what we did about it:

The Texas-based Boy Scouts of America forced the Auburn-based local Cayuga County Council Boy Scouts to "merge" with a larger local council, "Long House" Council, which occupies Onondaga County and other territories to our north. As part of the "merger", the Texas-based Scouts were forcing the transfer all the Cayuga County Council's assets to Long House Council, taking them out of local control. One gem-of-an asset was "Camp Rotary", a 33-acre camp located on the east side of Owasco Lake and used by local scouts since 1910. It was clear, and neither the cash-strapped National Scouts nor the equally economically distressed Long House Council denied it, that once they acquired Camp Rotary, they intended to sell it off to developers for cash. To make matters worse, Camp Rotary sits right next to the Auburn YMCA's "Camp Owasco" and the local Girl Scout Camp. Those groups were not anxious to have development so close by.

So the not-for-profits and good citizens of Cayuga County and Auburn bound their forces to fend off the attack, with the battle cry, "Save Camp Rotary"! Local leaders came to Michaels & Smolak looking for legal representation for the local not-for-profit which held title to Camp Rotary, the Owasco Camp Association. Michaels & Smolak took on the case, stood up to the big national Scouts in Court, and after a year and a half of tough-fought litigation, helped negotiate a settlement that culminated in Auburn's YMCA acquiring the Camp for a relatively small sum of money - $350,000 (it is easily worth over $1 million). It is now saved forever for local youth use! You can read several news reports about the battle here, here and here.

Michaels & Smolak donated approximately $20,000 worth of free legal services in support of this worthy cause. In gratitude, on December 20, 2011, the Cayuga County Legislature issued a "Proclamation" wherein special recognition was given to Michaels & Smolak for their role in saving Camp Rotary.

The Auburn-based Central New York personal injury firm of Michaels & Smolak is proud of their commitment to local charities and causes, and we thank Auburn and Cayuga County for allowing us to serve.

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


December 31, 2011

Central NY Injury Lawyer: City Should Be Held Responsible For Adoptive Parent's Abuse Of Children

Thumbnail image for bullied.jpgI read in the New York Times about a lawsuit on behalf or10 disabled Children fraudulently adopted by a Queens, New York woman more than 15 years ago. It is an extremely disturbing case. Anyone who loves children, swallow hard before reading further.

The lady used different aliases to adopt severely disabled kids (autistic, etc.) who clearly weren't wanted by anyone else, then pocketed the support subsidies from the City, spent them lavishly on herself, all while keeping the kids locked up at "home" and out of school. Well, I guess you could say they got some "schooling", but it was the school of "hard knocks": They were caged, handcuffed, and beaten every day of their young lives.

The kids are now mostly in their early adult life and, guess what, they want justice. Wouldn't you? Now mostly in their 20s, they are asking for money to pay for the psychological and other services and treatment they will need for the rest of their lives and to be compensated for their years of suffering as well.

Their "adoptive mother" (I sneer as I write that) is now penniless and behind bars. So who are they suing? New York City and the child welfare services who handed them over to this sicko, that's who.

Some readers might think it is unfair that the City be on the hook for the wrongdoing of this depraved predator. She was the villain, and the City was just a victim of her duplicity, right?

Not so. Although the City claims this creep was a so sophisticated in her manner of applying for adoption that they were completely duped, all the City really had to do was check to see if these kids were enrolled in school after they passed them off to this witch. Doesn't seem so hard to me.

When the foster parent or adoption process fails, especially as dramatically as here, heads must roll, and money must flow. I look forward to the day I read these kids have been justly compensated. And they will be. That's my New Year's prediction!

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 Foster Care Abuse, Neglect Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

December 26, 2011

New Year's Resolution Idea From Central NY Car Accident Lawyer -- Throw The Cell Phone Or Smart Phone In Your Trunk

Thumbnail image for cell phone driving.jpgHaving trouble finding a New Year's resolution? Let me help. Forget about losing weight. Been there done that -- or not!. That commitment usually lasts for only a few weeks. Here's one you might be able to stick with, and that could save your life:

Promise yourself that, beginning January 1, you'll start throwing your smart phone or cell phone in the TRUNK of your car whenever you drive. Don't just commit to not using your smart or cell phone --- as long as it's sitting next to you and on, you will. If you don't believe me, and think you can resist the temptation of answering the phone while you are driving, or of sneaking a peak at an incoming email or text message when you hear that little "beep" , take a look at this New York Times article, titled "U.S. Safety Board Urges Cellphone Ban for Drivers". The article cites to several well-researched studies proving that smart phones and cell phones are every bit as addictive -- and as dangerous to your health when you drive with them -- as cigarettes.

Why can't you resist the urge to answer, or to check that text message? Because you have a well-rooted, natural human urge to interact with other humans, especially when you are isolated and deprived of their company - as when you are alone behind the wheel.

And hands-free phones --- while still legal in New York --- probably won't be for long, given that all reputable studies show such use of your phone is just as dangerous as hands-on.

The only safe use of cell phones or smart phones while driving is NO use of them at all. And the only way that will ever happen is if you turn it off, or throw it in the truck where you can't access it.

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 Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

December 24, 2011

Neck Injury That Starts Out As A $100,000 Case Ends Up Settling For $1.4 Million.

christmastree.jpgA client of mine is having a very merry Christmas indeed. I already blogged about his Waterloo, New York car accident case. Guy was passenger in his buddy's car, who was stopped and waiting for traffic to clear so he could turn left into a driveway. Driver from behind, lost, looking at a map while driving, rear-ends them at full speed, causing them to flip over. Our guy ends up with a herniated cervical disc that takes him out of his welding job, for good, and requires surgery. The surgery helps, but does not rid him of the pain.

At first, there appeared to be no more than $100,000 in insurance, the policy limit of the driver/owner of the at-fault vehicle. There was no indication in the police report, or anywhere, that the negligent driver was doing anything but his own business when he rear-ended our guy. But an off-the-cuff remark by him at the scene -- about some "bovine sperm bottles" he had in his pickup truck -- tipped us off that perhaps he was working for some company that dealt in such products, even though he owned the vehicle and there was no company emblem or signage on it.

After some investigating, we turned up a California employer. The insurance carrier for the employer discloses a $1,000,000 insurance policy. Now we're talking! But still, we felt our client's case was worth more - what with all his pain and suffering, his completely altered life style, and the loss of his job.

We sued the employer and the driver. We got the judge to rule, without a jury trial, on "motion papers", that the defendants were liable and that our client had a "serious injury". Now all we would have to do was have a jury decide how much our client deserved. But just as we were getting ready for trial, and just after we made a full insurance policy limit demand of $1 million, the insurance carrier finally disclosed there was more --- another $10,000,000 excess policy!

The final result --- a $1.4 million settlement --- was obtained just the other day after a day-long mediation.

Our client is now having the merriest Christmas he has had in several years. And he is smart. He is making sure future Christmases will not leave him out in the cold. He is structuring his settlement into monthly payments that will take care of him for the rest of his life. The total amount of payments he will receive far exceed the cash value of his settlement.

So, yes, Virginia, there is a Santa Clause . . .

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


December 23, 2011

Central NY Injury Lawyer On Fall From Cell Tower In Marcy, New York

celltower.jpgNews reports say a man working on a cell phone tower near Marcy, New York, suffered serious injuries today after falling more than 80 feet. He is reported to have suffered multiple broken bones and was taken to Utica's St. Elizabeth's Medical Center.

Falls from a height like that can cripple, maim or kill. We had a similar case (fall from a cell tower) a few years ago, which we brought to a successful conclusion. To win it, we used a special law that helps workers who fall from rooftops, scaffolds and towers. It's called Labor Law 240, or "the scaffold law". It allows a fallen worker, under certain circumstances, to sue anyone with an ownership interest in the tower or the land the tower is on, including leaseholders, for compensation above and beyond what the worker will get in workers' compensation from his employer.

The key to winning this kind of case is to show that the worker was on the tower to "repair" something or to inspect something that was broken or malfunctioning. If his task involved "repair" work, or inspection work in contemplation of repair work, he is generally protected by Labor Law 240. But if he was performing mere "routine maintenance" of the tower, then he cannot prevail under Labor Law 240. He will generally be stuck with just his workers' compensation benefits, which (as anyone who has been on comp knows) generally isn't enough to pay the bills. It covers at most only about 2/3 of lost wages.

Under New York Labor Law 240, anyone with an ownership interest in the tower or land the tower was on can be held strictly liable for the workers' injury, even if the fall was largely the workers' own fault. The statute is designed to give the maximum amount of protection to construction workers and others who must risk their lives by working from heights.

Here are some of my other blog posts about Labor Law 240:

Save New York's Scaffold Law!

Tully High School Roof Repairman Who Fell From Roof Most Likely Has Solid Labor Law Case Against School District

Syracuse New York Construction Accident Lawyer Looks Up And Sees Labor Laws Being Broken!

Can I Be Sued If Someone I Hire To Remove Snow And Ice From My Roof Or Fix My Leaky Roof Falls? Central And Syracuse NY Personal Injury Lawyer Explains.

Can Spiderman Bring A New York Personal Injury Lawsuit For His Injuries?


Syracuse Fall-Off-Scaffold With Back Injury Case Settles For $1,000,000.

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
Fallen Worker Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

November 27, 2011

Tow Trucker's Funeral Raises Awareness Of Amended New York Vehicle & Traffic Law Protecting "Hazard Vehicles".

Thumbnail image for Move_Over.pngYesterday, about one hundred tow-truck drivers formed a procession on East Molloy Road in Mattydale during the funeral of their brother tow-trucker, Todd Young, who was killed when a tractor trailer careened into him as he was attending to a broken down vehicle on the shoulder of the Thruway in Manlius, a mile east of Interstate 481. The fellow tow-truck drivers were thinking, no doubt, "but for the grace of god, there go I". All of them, if they have been in the business for any significant amount of time, have had "close calls"; vehicles speeding by within feet, or even inches, of them as they dutifully attend to motorists in need on the shoulder of New York's Thruway and other highways.

And that's why a new law in New York, which takes effect January 1st, 2012, requires motorists to slow down and move over for "hazard vehicles", which includes tow trucks. The law, called the Ambrose-Searles Move-Over Act, as it is currently written (read my prior blog) applies only to "emergency vehicles", such as police cars. But the amended law will cover "hazard vehicles", too, including tow trucks. Violators face fines of up to $150 for the first offense, $300 for a second offense and $450 for a third offense.

So, fellow motorist, join this Central NY car accident lawyer in my pledge to slow down, move over, and . . .

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 Lawyer
Michaels & Smolak, P.C.

1-315-253-3293


November 26, 2011

Bigger Trucks Mean Bigger Accidents, Says Central NY Injury Lawyer

Thumbnail image for Thumbnail image for Thumbnail image for tractor trailer.jpgHope you all enjoyed your pumpkin pie. I sure did. And have you examined your waist line recently? If you're like many Americans, it's expanding. But not as fast as American truck drivers, according to a NY Times article I read last week. And then just today I read an article about how trucks are getting heavier, too. It seems everything in America is super-sized these days.

But let's just talk trucks for now. Officially, the national weight limit for freight trucks on interstate highways is 40 tons (80,000 lbs). But in almost half of the 50 States, Federal laws now allows for trucks weighing more (not yet in New York). Last week, Congress added Maine and Vermont to the list, allowing trucks up to 100,000 pounds there.

So what's the BIG deal? (pun intended). Big trucks make for big accidents, as this Central and Syracuse NY trucking accident lawyer knows all too well. And they also make for more frequent accidents because they are harder to control and stop. And they also chew up our roads and bridges faster, which chews up your tax dollars faster.

Are trucks done getting bigger? Fat chance. The American Trucking Associations is already lobbying to raise the national weight limit to 97,000 pounds.

So why does Congress keep passing laws allowing steroid-enhanced trucks to roam our intrastate highways? If you ask them, they will say bigger trucks hauling more mean fewer trucks on the road, which lowers congestion and increases national fuel efficiency. But if you ask me, the reason is that money trumps safety. The trucking industry is not just growing its trucks, but also its friends in Congress' campaign wallets. In America, everyone thinks big . . .

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 truck accident Lawyer
Michaels & Smolak, P.C.

1-315-253-3293


November 22, 2011

Thanksgiving and Black Friday Accidents

turkey.jpgThanksgiving is this Central New York injury lawyer's favorite holiday. Why? Because I love good food, and good company, but don't like the complicated and expensive business of gift giving.

Although Thanksgiving is a holiday, unfortunately, it is not a holiday from accidents. In fact, there are more accidents on Thanksgiving than on other days. Primarily, car accidents. People drink too much, then they drive. Crash. Don't do it!

Tis the season for slip-and-fall and trip-and-fall accidents, too. Black Friday means packed stores, with shoppers tripping over objects left in aisles, or slipping on liquid spills.

And I already blogged about black Friday trample accidents here:

Black Friday Shopper Trampled -- Central NY Personal Injury Attorney Explains Liability

Hey, enjoy the bird and pie, and your loved ones and friends, but don't drink and drive, and be careful in those packed stores, ok?

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

November 21, 2011

Central New York Injury Lawyer: Hunters Beware!

Thumbnail image for hunter.jpgHunting season is once again upon us. Hunters, please be careful. I have blogged about hunting accidents before, so rather than repeat myself, I'll simply refer you to this prior blog post:

Central NY Hunting Accident Lawyer Reminds Hunters of Safety Rules

Our law firm has recovered several sizable settlements for injured hunters from the homeowners' insurance of their fellow hunters who accidentally fired at them. Maneuvering past the insurance issues can be tough, as I explain in this blog post:

Central New York Hunting Accident Lawyer Explains Unfairness of Insurance Rule

If any hunters out there have the bad luck of getting shot, give us a call for a free consultation.

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 Hunting Accident Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

November 20, 2011

Do New York Personal Injury Lawyers Favor Republicans Or Democrats?

obama.jpgAs the presidential election campaign heats up, I thought you might want to know where we New York personal injury lawyers stand. Do we favor democrats, like Obama, or Republican like _______ (fill in the blank)?

I won't give you a bunch of crap about us being impartial. We favor democrats hands down. Why? Among other reasons, because many republicans are in favor of tort reform (personal injury lawyers like me call it "tort deform").

But that's just one reason. Republicans, generally speaking, favor corporations and the rich at the expense of the down-trodden and the poor. Many of our clients are down on their luck. They are injured, out of work, dependent on social services, and have a legitimate personal injury claim against a corporation or an insurance company that they hope will help them get their life back on track. Many Republicans want to take away, or sharply curtail, their right to get justice. They belief people should just pull themselves up by their bootstraps, even if they have neither boots nor straps.

It's not that Republicans don't sometimes have good ideas and good motives. They do. And there are a lot of good Republicans out there. Hey, my mom, dad, and two of my five brothers are all Republicans, and they are some of the loveliest people I know.

But generally the philosophy of the Republican Party is inconsistent with the interests of the vast majority of our clients. So sure, we favor democrats, generally.

That being said, I voted for at least two Republicans in my local elections in Geneva, New York a few weeks ago. You have to look at the candidate, not just the party affiliation.

Will I vote for Obama or _____ (fill in the blank)? Uh hem. I haven't decided yet. Do you believe me?

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 Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

November 13, 2011

Central NY Injury Lawyer Discusses New York Statute Of Limitations In Child Sexual Abuse Cases

Thumbnail image for sad teen silouette.jpgYesterday I blogged about whether a "governmental immunity " or "sovereign immunity" defense would bar a claim by child sex abuse victims against the State University of New York ("SUNY") if something like what happened at Penn State (State university football coach sexually abuses children on campus) happened in New York at SUNY Geneseo, or SUNY Albany, or SUNY Cortland, etc. I concluded that those defenses generally would not be applicable in New York. But unfortunately, unlike in Pennsylvania, another defense would likely prevail in New York: The statute of limitations.

Pennsylvania, unlike New York, has extended the statute of limitations for child sexual abuse victims until they reach age 30. From news reports, it seems that all the Penn State child sexual abuse victims are still under 30 years old. So they can, and probably will, be able to sue Penn State for compensation, though on the very same facts, they would not be able to do so in New York

In New York, there is no specific statute of limitations for civil cases based on child sexual abuse claims. The child victim must rely instead on traditional statutes of limitations for assault (by the perpetrator) and negligence (by the employer of the perpetrator or owner of the building where it happened). In New York, the statute of limitations for assault is one year, and for negligence it is three years.

But a child victim's statute of limitations is "tolled" (doesn't start to run) until he or she is 18 years old. That means that the statute of limitations against the perpetrator of the sexual abuse generally expires on the victim's 19th birthday, and against the employer/property owner, on the victim's 21st birthday.

But there are other --- and longer --- statutes of limitations that might apply. Under CPLR 213-b(2), if the sexual abuser is convicted of a criminal offense, the victim gets 10 years to sue him starting from the date of the crime. But this statute of limitations applies only to a lawsuit against the rapist/abuser who was convicted of the crime, not a lawsuit against his employer or others who may have negligently allowed the rape/abuse to occur. Thus, in a Penn State-like situation, the sexually abused child could not use this statute of limitations to extend his time to sue the State University.

What about CPLR 215(8)? That Statute gives the child victim of sexual assault in New York an additional five-year window to sue the perpetrator from the date the criminal action against the perpetrator terminates. But can a child sex abuse victim use this statute to extend his statute of limitations for suing not only the perpetrator, but also the negligent employer or premises owner or other culpable people who are not defendants in the criminal case? The courts in New York are divided on this issue, so this is far from a sure bet.

The bottom line is that most victims of child abuse in New York would probably be barred from suing SUNY (i.e., State Universities like Penn State) unless they did so before they turned 21. This is extremely unfair, because, as any psychologist will tell you, and as experience confirms, most victims of childhood sexual assault don't come to terms with what happened to them, or consider going to the police about it or making a claim for compensation, until they are closer to thirty years old. From what I have read, the victims of child sexual abuse at Penn State are now all over 21 years old, but younger than 30. Thus, their claims would likely be barred in New York, but not in Pennsylvania.

Why doesn't New York have a more fair law, like Pennsylvania's, that protects the rights of victims of child sexual abuse? Glad you asked. In 2009, the New York State Legislature considered a law that would have liberalized the statutes of limitations for child sex abuse cases. The "Child Victims Act" would have, among other things, extended the statute of limitations for filing civil suits for child sexual abuse to 10 years after a victim turns 18 (i.e., to age 28). But a very strong Catholic Church lobby defeated the bill.

There are some "loopholes" New York plaintiffs' lawyers might try to latch onto to avoid New York's harsh statute of limitations for child sexual abuse claims, such as "equitable estoppel". But those are very difficult arguments to make. For example, with an "equitable estoppel" claim, the once-child, now adult, victim must show that a defendant such as Penn State did more than merely cover up a crime; he must show that the defendant engaged in fraud, deception or misrepresentations that induced him to refrain from filing a timely action. This is almost never the case --- rather, usually the victim's own shame induced him to refrain from filing a timely action.

Maybe the Penn State drama will induce New York law makers to again attempt reforming New York's antiquated child sexual abuse law. Let's hope so.

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

November 12, 2011

Central New York Injury Lawyer Discusses Penn State Sexual Abuse Lawsuits

sad teen silouette.jpgLike everyone else, I have been following the "Happy Valley" Penn State child sexual assault scandal with disgust, awe, shock and dismay. But unlike everyone else, I am also thinking, as I read, who I would sue, for how much, and under what legal theories.

Although I am admitted to practice law in Pennsylvania, I have never handled a case there. My practice is limited to New York personal injury cases, and particularly to cases in Central and Western New York State. So I was surprised to read that some PA lawyers saw obstacles under Pennsylvania law to a lawsuit against Penn State because of the doctrine of "sovereign immunity". Penn State would, of course, be the principle target of my lawsuit because of its deep pockets. The lawsuits brought against the rapist/sexual predator, Sandusky, or any of the individual coaches, such as Joe Paterno, would quickly deplete all their assets, leaving the plaintiffs under-compensated. There are at least eight victims, and probably a lot more will be stepping forward, which in my mind equates to many, many millions of dollars in lawsuit recovery.

In New York, a suit against a State University for something like this would not trigger a viable sovereign or governmental immunity defense. That's because New York law distinguishes between the State's traditional governmental role (such as providing police protection) and non-traditional roles the State has assumed over time, such as owning and running a university. Generally, the State can raise the governmental immunity defense only against tort lawsuits for the former, not the latter.

If what happened at Penn State happened at one of New York's SUNY colleges, the only possible governmental immunity defense in New York would, in my opinion, be against allegations the campus police should have intervened. Since police protection is a traditional governmental function, a governmental immunity defense against that cause of action might prevail. But so many other causes of action abound for holding the State college or university liable here: Negligent hiring, supervision and retention of the football coaches; civil conspiracy; premises liability (knowingly allowing a dangerous condition to exist on their premises). And the government immunity defense would not bar these causes of action at all.

The problem in New York would not be governmental or sovereign immunity. Unlike in Pennsylvania, the problem would be the statute of limitations. I'll be discussing that tomorrow, so stay tuned . . .!

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

November 7, 2011

How Much Are The Mentally Disableds' Lives Worth In New York (Hint: ZERO!)

Thumbnail image for flowerongrave.jpgJust read a great article in the New York Times about developmentally disabled people in New York State care, or in the care of not-for-profit homes charged by the State to care for them, who die for "reasons other than natural causes". Check out the stats: One in six such deaths in the past decade have been chalked up to "unnatural" or "unknown" causes. Other states, like Connecticut and Massachusetts for example, count only 1 in 25 such deaths.

The Times, God bless their soul, undertook its own analysis of death records, to find out just what these poor folks were dying from. What they found is very disturbing: Many of these deaths result from errors and preventable deaths, such as drowning in bath tubs where the disabled were not supposed to be left alone in the tub, or choking on food when they were not supposed to be left alone with food; or falling down stairs when they were not supposed to be navigating stairs on their own. Some of the mentally disabled simply ran away, repeatedly, until they died out on their own.

The Times further found that these preventable deaths rarely resulted in measures being implemented to prevent the same mistakes from recurring.

Is this shocking? Yes. Surprising? Maybe for you, but not for me. Why? Well, you might think the State and these private homes would get the pants sued off of them for their deadly neglect, which would cause an about face. But I know better. As a New York personal injury lawyer, the most telling part of the article for me was this sentence: "Lawsuits are relatively rare after the deaths of developmentally disabled people in New York, in part because economic damages are difficult to prove, given that the victims are seldom employed".

The Times is absolutely right. Under New York's wrongful death law, a case can be brought to recover only the "economic loss" to the estate of the deceased. In other words, the family members who the deceased was supporting have a right to claim the "economic loss" of the support money they no longer receive because the bread-winner died. Most states, unlike New York, also allow surviving family members to sue for their grief, but New York does not.

Where does that leave New York victims of wrongful death who were not supporting anyone, such as children, the elderly, or the mentally or physically disabled? In the trash bin, that's where. Their lives are worth NOTHING under New York's antiquated, extremely unjust wrongful death law. I have blogged repeatedly about how unfair this rule is. See my prior blog posts below.

But this law is not just unfair. New York's wrongful death law is literally KILLING US. New York State and the not-for-profit homes that care for the disabled know they can, with impunity, neglect their charges, cause their death, and pay nothing to compensate the family. With no price to pay, why should they bother mending their ways?

To be fair, there is one kind of death claim involving disabled people that New York personal injury lawyers might find worth while pursuing. That's where there is proof of considerable conscious pain and suffering before death. The estate of the deceased, even a deceased disabled person, has a right to claim compensation for that pain and suffering. But since these poor souls often die alone, without witnesses, those cases must be rare.

Still, if you have a case where a mentally or physically disabled family member died from neglect while in New York State's care, or in a private home-for-the-disabled's care, call me. I would love to sue these guys to teach them a lesson! Lawsuits like that would make them think twice before neglecting their next victim.


Related blog posts:

New York Wrongful Death Law: A Travesty Of Justice For Elderly Victims Of New York Nursing Home Malpractice and their families

New York's Wrongful Death Law Is Wrongful

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 Wrongful Death Lawyer
Michaels & Smolak, P.C.

1-315-253-3293