January 1, 2013

What's New in New York Personal Injury Law in the New Year (2013)?

maze.jpgThe biggest single change for 2013 in New York personal injury law is, without a doubt, the Uniform Notice of Claim Act, which Governor Cuomo has signed into law on December 20.

It's a real game changer. Let me explain.

Until now, New York public entities (counties, cities, towns, villages, school districts, public authorities, fire districts, water districts, public libraries, etc.) have enjoyed disseminating a jungle of inconsistent procedural rules and time limits for starting personal injury lawsuits against them.

For example, almost all New York public entities require an injured claimant to serve them with something called a "notice of claim" (a document designed to alert the public entity of an impending lawsuit). But while 90% or so of them required that it be served within 90 days, the other 10% or so required that it be done within 30 days, and some even 60 days. And while the statute of limitations for suing 90% or so of them was a year and ninety days, about 10% required you to sue them within a year. Further, the manner of serving the notice of claim, and the official upon whom it had to be served, varied from public entity to public entity. If you served the wrong official, in the wrong way, your goose was cooked!

This morass of hard-to-find, unpredictable procedural requirements led to a predictable result: Many lawyers, even very smart ones, were unaware of the shorter time limitations, and were thus missing them. Also, they were sometimes serving the required notices of claims on the wrong public official or in the wrong way. As a result, perfectly valid personal injury and wrongful death claims against at-fault public entities were being tossed out of court on arcane procedural grounds, which of course gave birth to new claims against the lawyers who inadvertently failed to comply with the labyrinthine rules.

Enter the Uniform Notice of Claim Act -- a breath of fresh air! It establishes a uniform procedure, with uniform time limits, for claims against all New York public entities. A lawyer needs to know only one set of rules regarding how, and when, to serve the notice of claim and to file the lawsuit.

Highlights from the act are:

• A uniform manner of service of the notice of claim. The claimant simply serves the notice of claim upon the secretary of state. The secretary of state then sends a copy of the notice of claim to the public entity within 10 days.
• A uniform 90-day time limit for serving the notice of claim.
• A uniform one-year-and-90-day statute of limitations for injury cases and 2-year statute of limitations for wrongful death cases.
• A claimant (or lawyer) who inadvertently "screws up" by serving the wrong public entity within the 90-days can apply to the court for leave to serve the right one after the 90-day time limit, and the application should be granted unless the public entity can demonstrate that it suffered "substantial prejudice" in the investigation or defense of the claim.

If you like simplicity and fairness, this legislation is a welcome change. If you like convoluted laws that confound and trick even smart lawyers into making fatal mistakes, and that get governmental wrongdoers off the hook, it's a bad change. In other words, if you are a public entity, you hate this law (and yes, they vigorously lobbied against it!), but if you are a neutral, fair-minded citizen (such as you, dear reader!) you should love it.

And of course we New York personal injury lawyers love it too. We can sleep easier, assured that we did not overlook some bizarre, arcane, hard-to-find time limit or procedural requirement for suing a public entity on behalf of our injured clients.

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
Syracuse and Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

December 31, 2012

"Save That Evidence Or Else . . . !" Central New York Injury Lawyer Warns.

evidence.jpgYou get hurt. Your first thoughts are about getting medical care. You aren't thinking about calling this Central New York personal injury lawyer or filing a lawsuit. You're not "the suing type", you say. But several weeks later, when you realize you may be stuck with this injury for the rest of your life, you start seething about the careless jerk who hurt you.

So you call me. Sure, you have a lot of questions, but so do I!

If you slipped and fell I am going to ask you, "do you still have the shoes you were wearing". Why? I need those to disprove the almost certain defense that worn out or inappropriate footwear made you fall.

If you slipped and fell in oil or some other substance, I'll ask, "did you already wash the clothes you were wearing"? Why is this important? I want to have a chemist examine the liquid to see what it is and where it likely came from. Maybe one of defendant's machines!

And if you were hurt in a car accident, I'm going to ask, "is the car still available for inspection"? The physical damage to the car tells us a lot about how the collision happened and whose fault it was. It also tells us a lot about the g-forces that transferred into your body so we can prove your injuries are authentic and not feigned.

In sum, what I want to know boils down to this: Did you preserve the evidence? This is important not only because it helps me prove your case, but because you, as the plaintiff, are legally required to preserve the evidence. This is because whoever you sue has a right to examine the evidence to disprove your case or prove his/her defenses. If you destroyed the evidence or threw it out, even accidentally, even without knowing any better, a judge can later "sanction" you.

What kind of "sanctions"? It depends on two things: The importance of the evidence and the degree of culpability on your part. If the evidence was not so important, and you made an innocent mistake in destroying it, the judge might simply instruct the jury that it can, if it chooses, infer the evidence would have disproved your case. But the judge is likely to be harsher on you if the evidence was either critically important or you knowingly destroyed it. In such cases, the judge can do to your case exactly what you did to the evidence; throw it out!

Bottom line: It is best to call me early on, not weeks after the accident. But if you don't call me right away, at least preserve all the evidence. Don't mess with it, don't toss it, don't sell it, don't fix it, and don't wash it. Preserve it. Photograph it. Bag it. Thanks!

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 Toll Free 1-866-698-8169


December 15, 2012

Central New York Personal Injury Law Firm's Year In Review

Cthse 2.jpgAs 2012 comes to a close, it's time to look back on this year's successes at the Central New York personal injury law office of Michaels & Smolak. Yes, we're proud of our victories. They have allowed us to truly help people, people we have come to care about, people we have stood beside through thick and thin from the day they were injured until the day, sometimes years later, they finally tasted sweet justice. When, after a long struggle, we finally ring the bell of justice, we celebrate.

Although we fight for fair compensation in both small and big injuries cases, the big ones stand out because they are so life-altering. Without our efforts, many of those clients would sink into financial ruin. Those unfortunate few, those severely injured victims, are not just "down on their luck", they are crushed by the overwhelming bad luck of having been at the wrong place at the wrong time in striking distance of the wrong wrongdoer. Not only can they no longer work to support their families, not only are they swimming in unpaid medical (and other) bills, but they must wake up in pain, drag themselves through the day in pain, and then lie down in pain again, only to relive the same pain again, and again, and again, every day of their lives. It's like a horror-movie remake of "Groundhog Day".

From our perspective, it's amazing, even immoral, that the insurance carriers don't pony up a fair settlement for these clients early on. Sadly, they often wait till the eve of trial to begin to make reasonable settlement overtures. Sometimes they only "see the light" or more accurately, feel the fear of a big verdict, at trial.

Here's a few examples this year: After a week of trial, an insurance company finally tendered a fair settlement of $2.25 million to a 48-year old roofer with a severe and painful leg fracture that prevented him from working for the rest of his life. In another case, the widow and small child of a fallen firefighter finally achieved a fair settlement of $1.2 million from four defendants at trial. In another case, after two years of litigation, a 48-year old welder, whose car was flipped over in a rear-end collision, and who suffered a cervical herniation requiring surgery, finally was offered a fair settlement of $1.2 million.

We also got the children and wife of a victim of medical malpractice a half a million dollars for the E.R. room doctor's negligence in failing to diagnose their father/husband's aortic aneurysm, which led to his death. And we achieved a $1.9 million settlement for a 45-year old man who suffered permanent severe aggravation of a preexisting degenerative disk condition in his neck.

We had other settlements and verdicts, some large, some small, but in every single case, even in those that do not turn out as well as we would have liked, we did our very best for our clients. We think they know that. We think they like that. And that's why they keep referring their friends and relatives to us. Thank you to all of our 2012 clients for trusting us, for believing in us, and for letting us fight for their justice.

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 Toll Free 1-866-698-8169

December 8, 2012

New York Jury Acquits "Driving-While-Drowsy" Defendant.

Thumbnail image for Thumbnail image for Thumbnail image for bus.jpgI recently blogged about a new nationwide trend to criminalize "drowsy driving". Caffeine-crazed prosecutors around the country are going after sleep-deprived drivers who doze off at the wheel on criminal charges including manslaughter and other serious felonies. (The prosecutorial equivalent of pouring cold water on sleepy drivers.) Could YOU end up on the receiving end of such prosecutorial zeal some day? Hey, wake up and smell the coffee --- you too drive sleepy once in a while!

Yesterday, New York City prosecutors lost a nine-week multiple-manslaughter trial against a bus driver they charged with driving while drowsy. Essentially they argued that, by getting behind the wheel of the bus knowing he had not slept enough, and then causing an accident because of his sleep deprivation, he committed manslaughter and other serious crimes.

The jury disagreed. Yes, he caused one of the deadliest crashes in New York City's history. Yes, he was probably negligent in the extreme for having driven a busload of innocent unsuspecting passengers on too little sleep. But no, he was not criminally liable.

But don't worry about the guy getting off scot-free. He already spent more than a year in jail because he could not make bond, and he still faces liability in pending civil lawsuits for damages filed by the survivors and relatives of those killed in the crash. The injuries were horrendous, including one guy who lost both arms.

Want to know what it's like to live with no arms? One of New York's finest trial lawyers ever, Mo Levine, once famously summed it up to a jury like this: After telling the jury he had just taken his client out to lunch, he paused and said, "ladies and gentlemen, my client eats like a DOG"! Then he sat down. The jury gave his armless client the biggest New York personal injury verdict ever recorded until that day.

I feel terrible for the victims of this unspeakably horrendous accident. I hope they get zillions of dollars in their New York personal injury lawsuits. But as I explained in my last blog, in the humble opinion of this Central New York auto accident lawyer, criminally prosecuting sleepy drivers is a Pandora's box not worth opening.

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 Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


December 2, 2012

Should Drowsie Driving Be Criminalized? Central NY Car Crash Lawyer Weighs In.

jail despair.jpgJust read an article in the New York Times titled, "Push to Prosecute Drowsy Driving May Hinge on Its Definition". Before I discuss this article, I need to make a confession: I've done it. I have driven drowsy. I've felt myself nodding off at the wheel. It has happened a few times in my life, and every time it scared the crap out of me. Come on, admit it --- it's happened to you, too!

Now I (and you?) could go to jail for it. According to the article, law enforcement officials are pushing State legislators to make driving-while-drowsy a crime punishable by jail time. This follows a decades-long trend toward criminalizing dangerous driving behaviors, such as drinking-while-driving, texting-while-driving and phoning-while-driving.

Until now, law enforcement has simply coaxed the sleepy driver with friendly nudges from roadside signs, such as "You Snooze, You Lose" or "Drive Alert, Arrive Alive." Is it a good idea to up the ante, to make it a crime?

Since my job includes suing negligent drivers for causing car crashes that injure my clients, I would love a law like that. To prove my case, I would just hand the judge proof of the criminal conviction, and he or she would instruct the jury that the defendant driver is liable as a matter of law. Case closed. Only thing left for the jury would be to figure out how much money my client is owed.

Even though I personally would benefit from the criminalization of drowsy driving, I'm against it. (You see! We personal injury lawyers are not all about greed!). It's just wrong. Nowadays we believe jail is the answer to every problem. But jail is expensive for us taxpayers. Some otherwise very good people might get drowsy at the wheel. Driving without enough sleep is in part a consequence of our modern high-stress world, where we are all juggling busy schedules, long work hours, sometimes more than one job, not to mention taxi-ing our kids around to and from sports practices. And how do you prove someone was legally "too sleepy" to be driving anyway? There's no blood test (like for alcohol) and no record (like cellphone call records) to prove sleeping, or lack of it.

Don't get me wrong --- I am all for holding folks accountable for their negligence in a civil trial for damages. But if you can prove someone fell asleep at the wheel, that's already just about always a slam dunk on civil liability in New York State. (See my past blog post "Does Falling Asleep at Wheel Automatically Make Sleeping Driver Liable For Central New York Motor Vehicle Accident?"). I just don't want a separate criminal penalty for it. I don't think the threat of jail will keep sleepy people off the road.

The one exception I would make would be for commercial drivers and common public carriers, such as taxi drivers, bus drivers. But you still have the problem of defining what legally is "too sleepy", and proving it. Lots of grey areas in 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 Car Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


November 28, 2012

CNY Accident Lawyer Explains: If You Can "Write" You Are More Often "Right" In Appellate Court


Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgA lawyer friend of one of my partners called him yesterday to tell him that, while in a telephone conversation with one of the judges who sits in the Appellate Court in Rochester (Fourth Department), the judge asked him if he knew Michael Bersani (me). He responded, "sure, I know Mike, why"? The judge replied, "because he writes the most excellent appellate briefs"!

Very flattering, especially since I don't even know that judge. I used to work up there clerking, many years ago, but all the judges I worked for are retired.

More important than the flattery, though, is what this could mean to my clients. I have two important appeals pending up in that Court. I argue one of them next week. Did the judge's comment mean that this particular judge agrees with my arguments? Or does he just think I write wonderfully on a losing argument? I am hoping the judges don't just think I can "write" well, but also that I am just plain "right" on the legal issues.

You have a much better chance of winning an appeal if you are a powerful writer. Being "right" and knowing how to "write" overlap. Appellate advocacy is not about splashing an argument onto a brief and hoping the judges agree. It's about framing the argument right, organizing it right, and saying it right, so that the only logical conclusion a reasonable reader can draw is that you ARE right.

I sure hope I'm right!

Stay tuned . . .

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 Toll Free 1-866-698-8169

November 19, 2012

Cicero, NY Car Accident -- Could The Roadway Design Have Been Partially At Fault?

Thumbnail image for defectiveroad.jpgToday a driver was seriously injured when she careened over an embankment at a sharp curve on Lakeshore Road, near Ontario Ave, in Cicero, near the edge of Oneida Lake. Some witnesses say the car was going too fast, but a neighbor was quoted in the paper saying the curve has a history of bad crashes.

The "history of bad crashes" caught my eye. By force of habit, my NY car accident lawyer thinking cap went on. Get under that cap with me for a moment.

Here's my stream of thought: "Could this unfortunate driver, even if she was going a bit too fast, bring a claim against the State, County, Town or whoever designed the roadway? Did the design of the roadway contribute to her car accident? Was the posted speed limit too fast? Were there adequate signs announcing the curve? Should they have installed flashing yellow lights or other hazard warnings for the curve?"

In New York, this kind of case can sometimes prevail if the signage, speed limit or design of the roadway evolved haphazardly, without a reasonable governmental study or plan, or were the result of an inadequate plan or study. Some of the questions that will come up in such a case are: Did the design of the roadway, or inadequate signage, or a too-fast speed limit, help cause the accident? Did the roadway design, signage and speed limit comply with the highway engineering standards at the time the roadway was built? Did the government learn of other similar accidents over the years -- accidents that should have tipped it off that the design, signage or speed limit should be re-considered --- and yet they fail to take a second look?

Accidents often have more than one cause. Many times there is plenty of blame to spread around. And sometimes some of that blame falls squarely on the government agency that designed the road.

Drive 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 Toll Free 1-866-698-8169


November 16, 2012

Central NY Trip-And-Fall Lawyer Takes Advantage Of Poorly Drafted Village Law

Thumbnail image for Thumbnail image for sidewalk.jpgLife is full of surprises. I got one yesterday.

A client suffered a very bad injury from tripping on a sidewalk defect in a village near Geneva, New York (I won't name names!). Normally, trip-and-fall on sidewalk cases are nearly impossible to win because of a special law that protects villages (as well as cities, towns, etc.). That law -- General Municipal Law section 50-e(4) -- says that, under most circumstances, you can't sue a village, town, city, etc., for injuries caused by defects in a "sidewalk, crosswalk, street, highway, bridge or culvert" as long as the village (or town, city, etc.), has enacted a "prior written notice" local law. Such a local law must in turn say, "hey, folks, you can't sue us for injuries caused by defects on our sidewalks, crosswalks, streets, highways, bridges or culverts unless, before you were injured, we already had written notice of the defect."

This is an extremely unfair law. No one, at least in upstate New York, ever writes to a village or town or city to tell them, "hey, you have a defect in your sidewalk at such-and-such a location and you'd better fix it before someone gets hurt". If people complain at all about a defect or hazard they see, they are more likely just to call and complain. But that's not enough under New York Law. It has to be in writing to be valid.

Getting back to my client, because she had a pretty serious injury, I wanted to make sure the village actually had a prior written notice law on the books. In my experience, 99% of villages, towns and cities in New York do, so I would have been very surprised if they did not.

Sure enough, they did. The village attorney sent me the village's "prior written notice law". But upon careful review of it, I noticed, to my surprise, that it required prior written notice only for defects in "culverts, bridges, streets and highways" AND NOT FOR SIDEWALKS.

The author of that village law clearly screwed up. Whoever that was, I would like to thank him or her for the gift. Now we do not need to show that the village had prior written notice of the sidewalk defect that injured my client. All we have to show is that the village negligently maintained the sidewalk, a far easier task.

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 premises liability Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


November 11, 2012

The Good Die Young; Construction Accident Takes Heroe's Life.

Thumbnail image for Thumbnail image for scaffold.jpgI read in Syracuse.com yesterday that a 37-year old man, Lateef Haskins, died Friday in a construction accident when he fell from the scaffold he was working from. He was working for a subcontractor on a job renovating the State University College of Oswego.

The article went on to say that Mr. Haskins had shown heroism when, several years ago, he helped rescue a family of four from their house fire. Using a ladder, he had gotten people out of the top floor before the fire department got there. This was not without risk to his own life; flames were shooting out of the roof as he rescued his trapped neighbors.

Mr. Haskins' family will likely be entitled not only to workers' compensation benefits, but to much more compensation should they file a claim under New York's Labor law 240, also known as "The Scaffold Law". I have blogged about this special Statute often before. Under most circumstances, when a construction worker falls from a scaffold, the general contractor and the owner of the construction project (here, New York State) are automatically liable for all damages suffered by the worker and his family. In this case, that would include all future lost wages and compensation to any children Mr. Haskins' has for "loss of parental guidance".

Our condolences go out to Mr. Haskins' Family.

Here are some of my previous blog posts about Labor law 240:

Save New York's Scaffold Law!

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.

"Worker in Geneva New York Who Fell from Scaffold Probably Has a Slam Dunk Case against Wal-Mart", Geneva New York Injured Worker Lawyer Says.

OSHA'S Increased Construction Site Safety Enforcement in Syracuse and Central New York May Help Decrease Syracuse New York Falling Construction Worker Lawsuits.

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 Construction Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

November 10, 2012

Personal Injury Lawyer Trial Tips By The Greatest New York (and other) Trial Lawyers

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgOne great thing about being a personal injury trial lawyer, whether in New York or elsewhere, is that you can keep improving, keep getting better, keep honing your skills, forever.

Recently I have been listening to lectures by some of the best New York trial lawyers, as well as great trial lawyers from other States, about how they try personal injury cases. The most recent one I listened to is Jim Perdue's "The Art of Story Telling". Jim is a well-respected Texas trial lawyer. I had read some of his stuff years ago, so this was kind of a refresher course. Jim's basic premise is that a jury trial is all about story-telling, and the side that tells the best, most credible story, wins. Here are some notes I talked into my smart phone as I listened:

(1) Tell the jury the safety rule the defendant violated, then tell them why the rule is important, then show how defendant broke the rule, then show them the harm defendant's breaking the rule did to plaintiff.

(2) Use a visual aid board, with two columns, one for "the right way" and one for "the wrong way" of doing whatever it is that defendant did wrong. For example, if a manufacturer improperly tested the product before putting it on the market, put in the "wrong way" column the way he did it, and in the "right way" column the way he should have done it (you can use an expert to explain to the jury the right way).

(3) Defendants don't have "defenses", they have excuses. Call them that, excuses. Make an excuse chart to show the jury. In summation, as you go through each excuse, explain why it is not valid, and cross off the excuse with a big red "x".

(4) Jim likes this metaphor: "This defendant has so many excuses it's like the crabgrass growing on my backyard. But we have a weed killer called "truth" . . .". Nice. I'll try using that one (in the summer!).

(5) Trials are about character. Juries like characters who are rescuers, or who suffer misfortune through no fault of their own, and who struggle back, and they like dependable people. They don't like greedy or traitorous characters. Try to bring out the positive characteristics of your client and the negative ones of the defendant, where appropriate.

(6) Remember, the defendant is on trial, not plaintiff. So start with what the defendant did wrong. That's the story you want to tell first.

(7) Make eye contact with each juror - do not talk to the jury, but to jurors.

See ya in court (hopefully at my table, not at defense counsel's!)

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 Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

October 29, 2012

What's The Scariest Thing About Halloween? Central NY Injury Lawyer Explains.

halloween.jpgHey mom and dad: Halloween's here. Boo! Not really scary, huh? Figured. Hey, I'm a parent, too, and also a Central and Syracuse New York personal injury lawyer. (Scared yet?).

From my experience representing injured people, including injured kids, let me tell you what does not scare me about Halloween: tainted candy, candle fires and child abductions. If you read the newspaper headlines the day after Halloween, you are unlikely to see reports about any of that. That's because that stuff hardly ever happens.

But I can almost guaranty you will read a headline like this: "Trick-or-Treater struck by car".

Think about it. Kids in dark "scary" costumes, night-time, criss-crossing the roads to hit up every house, looking into their trick-or-treat bags to see their "stash" as they cross. Maybe some "celebrating" by driver (i.e., drunk). All that makes for a toxic combination. Now that's scary!

How to take the scare out of it? Watch your child (if he or she is young) and give them clear safety instructions if they are older. Make them bring a flashlight, too.

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 Toll Free 1-866-698-8169


October 28, 2012

Lawyers Who Handle Buffalo NY Sidewalk Trip-And-Fall Cases, Take Note!

Thumbnail image for sidewalk.jpgThis blog post is directed to my fellow New York personal injury lawyers who might have trip and fall cases from Buffalo, New York, but also it is worth reading if you have been injured by a defective sidewalk in the City of Buffalo, NY.

As my regular readers know, every year I cull through all the new cases involving "municipal liability" in New York State. I read all the reported decisions regarding lawsuits brought against cities, towns, counties, school districts, the State of New York and other governmental entities in New York. I then summarized the important new cases and travel around the State lecturing other New York personal injury lawyers about the new developments.

This year I noticed a new case from the Appellate Division, Fourth Department dealing with sidewalk defect cases in Buffalo, New York. Before I explain the case, you first have to understand that, in most cities in New York, trip-and-fall-on-sidewalk cases are very difficult because you have to sue the city and you also usually have to show that the city had "prior written notice" of the defect that made you trip and fall. And as a practical matter, there is almost never prior written notice of such defects because nobody goes around writing the City about sidewalk defects. At most, they might make a telephone call, but that is not enough to trigger liability for future falls; it must be prior written notice.

In Buffalo, though, things are different, and in fact, similar to the rule in New York City. By a special local law in Buffalo (413-50[A] of the Code of the City of Buffalo), the abutting landowner is responsible for maintaining the city sidewalk abutting his property and is liable for injuries caused by his or her failure to maintain the sidewalk, and no prior written notice is needed.

The case is called Davison v. City of Buffalo, 96 A.D.3d 1516, 947 N.Y.S.2d 702 (4th Dep't 2012). Prior to this case, the Court had concluded that the Buffalo local law did not make the abutting landowners liable for defects in the abutting city sidewalk, but this new case changes the law in this regard.

This rule, while it may make homeowner insurance more expensive in Buffalo, will help victims of poor sidewalk maintenance.

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 Toll Free 1-866-698-8169


October 25, 2012

Central NY Personal Injury Lawyer Becomes A Teetotaler

JoinTeaPartyNation.jpgI have blogged about the Tea Party before, and here I go again. While many of the positions of the Tea Party are not my cup of tea, I strongly align with the Party on one particular issue: The right to a civil jury trial. It's in our Bill of Rights, and it's one of the most important rights we have.

I know what you're thinking: Of course you're for it because, as a New York personal injury lawyer, it's your bread and butter. Yes, I am biased. But I'm also right!

Don't take it from me. Take it from the Tea Party founding father, Judson Philips. In his most recent blog on the subject, he points out that the hallmark of American democracy is our "classless society". Everyone is treated equal under the law. We are unique on this planet in that our court doors open wide enough to allow even the poorest citizen to sue the richest corporation for injuries and other wrongs they inflict on us.

As he further points out, if "tort reformers" have their way, the ugly head of classism will wedge Americans apart, denying the most vulnerable their Constitutional right to a civil jury trial.

Top three memorable quotes in his blog post: (1) "Corporations do not want regular people to be able to sue them". Of course not! (2) "Corporations claim that any lawsuit they lose is a frivolous lawsuit". So true! And I might add that they never regard their frivolous defenses as frivolous. (3) "The ultimate goal of many of these 'Tort Reform' advocates is to make it impossible for lawyers to file lawsuits for the average citizen". You got it!

I usually drink coffee in the morning, but this morning I think I'll enjoy a cup of tea . . .

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 Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


October 23, 2012

"Greedy Corporations Make Me Sick", Says Syracuse NY Personal Injury Lawyer

Thumbnail image for syringe.jpg.jpgSometimes when I read the newspaper and see what greedy corporations are capable of, well, it makes me sick. This blog post is about a greedy corporation that literally made people sick.

The recent Meningitis outbreak you've been reading about is caused by contaminated spinal steroid injections. Many of my clients have had this type of steroid injection for back pain. A batch of steroid contaminated with a type of black mold called Exserohilum is causing the Meningitis. The manufacturer, "New England Compounding Center" in Framingham, Massachusetts caused the contamination by allowing dirty, sloppy conditions to prevail in the steroid production process

Cutting safety corners, in this case simple rules of hygiene, is always unacceptable, but when the product you are selling is getting injected into your customers' spines?! Come on!!

Now meet a few of the victims. A mother and daughter, the Liteskis, were featured in a New York Times article this week, titled, "Worried Sick: Meningitis Risk Haunts 14,000". They have both recently learned the steroid injections they received may be from the contaminated batch.

Now the Liteskis have to bite their nails while they wait out the "incubation period", which can be several months. If they turn out to be among the "lucky" ones, then the won't actually have to get sick and die. Instead, they will just have to fear and worry about death and serious illness for a few months. Boy, won't they be lucky!

As the article's title makes clear, they are "worried sick". The fear actually makes them sick! They feel that every new twinge of pain or headache is the onset of the deadly meningitis.

Yes, they will die a thousand deaths in these few months.

So far, 282 have contracted meningitis from the contaminated steroid injections and of those 23 have died. Do the math. If you get sick, you have about a one in 10 chance of dying from it. Those might be good odds for a horse race, but when you're betting on your life, not good enough.

Long ago our civilized society discarded the old eye-for-an-eye justice system. If that system were still in play, we would inject the spines of the CEO, the safety officer, and others at "New England Compounding Center", with the contaminated steroids. Then we would watch them squirm, just like the Liteskis.

No, we have moved beyond that form of justice. New York personal injury lawyers like me just ask juries for money to compensate, not revenge. And I hope the Liteskis get lost of it, even if they never get "sick" from the meningitis, but only from the fear and worry.

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 Toll Free 1-866-698-8169


October 19, 2012

"Do I Really Have To Wear A Helmet When I Bike, Dad?" Maybe not, says Central NY Bike Accident Lawyer

bicycle helmets.jpgAs a Central Syracuse NY bike accident lawyer, I have seen first hand some nasty head injuries from fallen bicyclists. So I was not very understanding last April when my 13 year-old son informed me that it was so totally uncool to wear a helmet on a bike that he would rather not ride at all than put one on. Didn't I know that only nerds wear helmets? And didn't I know that if his buddies in our city (Geneva, NY) ever caught him riding with a helmet on he would be a laughing stock? Was I trying to ruin his life or something?!

I said, "nice rant, now put your helmet on.." And he said, "no helmet, no way".

I figured he would eventually cave. But he didn't. For a full month he did not ride his bike at all. When I finally realized that he meant what he said, that he would not "get caught dead with a helmet on", I capitulated. I let him ride his bike without a helmet.

Irresponsible parenting? Maybe. But my thinking was that I would rather accept the relatively small risk of him getting a head injury from a bike fall than accept the certain downside of his not getting good exercise by riding his bike all summer.

Then just last week I ran across a New York Times article that hit home. It made me realize that I was not alone in my "helmet dilemma". The New York Times reported that all successful city bike-sharing programs around the world (like the velib in Paris) have one thing in common --- no helmets required. By contrast, city bike-sharing programs with a mandatory helmet rule -- like the one in Melbourne, Australia -- have all failed.

The Times reporter explains::

In the United States the notion that bike helmets promote health and safety by preventing head injuries is taken as pretty near God's truth. Un-helmeted cyclists are regarded as irresponsible, like people who smoke. . . . On the other hand, many researchers say, if you force or pressure people to wear helmets, discourage them from riding bicycles. That means more obesity, heart disease and diabetes. And -- Catch-22 -- a result is fewer ordinary cyclists on the road, which makes it harder to develop a safe bicycling network.

Will I continue to wear a helmet myself when I bike? You betcha. And will I continue to try to convince my son to wear one, too? Absolutely. But will I suffer to see him not ride around town at all because he has to wear one? No I won't! Life is like that. Sometimes our ideals must give way to reality . . .

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 Bike Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169