Central New York Injury Lawyer Blog

My last Central New York injury law blog was about New York dog law and how it has no "teeth". It doesn't protect innocent bicyclists, pedestrians and runners from dog bites and dog attacks because it does not make dog owners pay for injuries their dogs inflict when they violated leash laws. I explained how in New York, unlike in other states, a dog owner is not liable for the injuries his dog causes to pedestrians, bikers, runners and others merely because he violated a leash law and allowed his dog to roam unrestrained. In New York this is not enough. You have to show that the dog owner knew or should have known of the dog's vicious tendencies, or of its tendency to run out after pedestrians, runners or bicyclists. This is sometimes hard to prove, because the dog owner will invariably deny that his dog ever did this before.

But, as usual after I publish a blog, I had a "I should-have-said" moment. In this case, I should have added an anecdote about a case I had a few years ago where the dog owner's insurance adjuster (with whom I was negotiating behalf of my client) did not know this rule. He, like many people, assumed that a dog owner would be liable for injuries caused by a dog when the dog owner disobeyed a leash law, thus allowing the dog the opportunity to attack a bicyclist, runner or pedestrian.

I settled the case with him and got my client a fair settlement, even though I knew I was able to do so only because the adjuster was ignorant about the law. Did I feel bad about that? Absolutely not; my client deserved the compensation, I did not deceive the insurance company about the law, rather, its adjuster was just too lazy to look it up, and the law in New York is so unjust that this "error" on the part of the insurance adjuster actually worked a justice.

Are there any lessons to be drawn from this story? There are three. First, sometimes justice can be done in unexpected ways. Second, don't assume insurance adjusters know the law. Third, play your cards close to the vest and you may get lucky.

I hate dogs. At least when I am on a bike or out running. I have a dog ("Pisca"), but she is not like those dogs. She does not run out after bicyclists and runners. I keep her inside unless I am walking her, and then she is leashed.

Maybe my view of the world is skewed because I handle a lot Syracuse and Central New York bicycle accident cases, where I see close up how lives, damn good ones, are destroyed by unrestrained dogs.

But I am not the only one who thinks dogs should be restrained. After all, many New York State local lawmakers agree with me. They pass "leash laws". Many dog owners apparently don't agree with me and the lawmakers, though, because they let their dogs roam free, leash laws be damned!

So here is my blog query for the day: What happens in a New York dog-on-biker attack, or a New York dog-on-runner attack, where a scofflaw dog owner lets his dog loose in violation of a local New York leash law? Can you sue the law-breaking dog owner to compensate you for the broken bones you suffered in your crash to the pavement from your bike, or to replace your broken bike, or to compensate you for the bite scars on your butt?

Amazingly, no, not usually! Not in New York anyway. Unlike many States, in New York State a dog owner is not liable for injuries caused by unrestrained dogs, even when the owner violated a local leash law, UNLESS the dog owner knew or should have known that the dog had prior vicious propensities, or had a tendency to run out after bicycles, cars or pedestrians. And if you don't believe me, here's a recent case from the highest Court in New York State that says so.

Wow. Sounds counterintuitive, doesn't it? Shouldn't the scofflaw dog owner be liable for breaking the leash law? Yes! And they are held liable in many States. But New York's dog law has - unlike New York's dogs -- no teeth.

Now compare New York's dog friendly law to Massachusetts' bicycle and pedestrian friendly law. Those lucky Massachusetts runners and bikers are protected by a statute, Massachusetts General Laws c. 140 s. 155, which makes a dog owner strictly liable for all bites and other attacks, including against bicyclists, as long as the victim was not trespassing, teasing or tormenting the dog. Under Massachusetts law, dog owners are not only required to restrain and control their dogs, they may be held liable for injuries resulting from their failure to do so, even if the dog had never attacked runners or other pedestrians, or bothered or chased down bicyclists before. You let your dog loose at your own risk, not the risk of others.

Apparently, New York prefers dogs to people. Or perhaps the dog owner lobby is just stronger than the bicyclist lobby. Whatever the reason, New York needs a leash law with real teeth, because , hey, that's what dogs have (believe me -- I've got a few scars to prove it!).

At my favorite Bike Shop (the Geneva Bicycle Center), I recently learned of a dog-on-bicyclist attack near Geneva, New York. Apparently, the dog charged out at the cyclist and caused her to fall from her bike and fracture her pelvis. That's a painful injury that will require lots of time to heal.

So here's my bog topic of the day: Can the injured cyclist hold the dog owner liable for her injuries? The answer, unfortunately, is only "maybe"! The basic rule in New York where a dog charges out into the roadway and causes a cyclist to fall is that the dog owner is legally liable only if he or she knew or should have known that the dog had a tendency to chase after or obstruct traffic. Take a look at the case of Alia v. Fiorina and you will see how a dog owner can beat a cyclist's case by testifying that the dog never chased down cars or bikes before.

So if you are the seriously injured victim of a dog-on-cyclist attack, how do you find out whether this was the first time the dog ever chased down a car or cyclist, or whether the dog had a history of doing so? Just ask the dog owner, right? Wrong!

If there's one thing I have learned from suing dog owners is that they are like parents; they feel their cute little Fido can do no wrong. Typical dog owner responses to his or her dog biting someone, or charging out at a cyclist, go like this: "Butch would never bite anyone - he must have been provoked". "Fido would never attack a cyclist --- he was just being playful and the cyclist must have over-reacted".

The way to find out the truth about the dog is to hire a skilled investigator to get statements from the neighbors, UPS driver, postal worker, and anyone else who frequents the house and the street or roadway where the dog lives. That's what the New York bicycle accident lawyers at Michaels & Smolak do when they are investigating a dog that caused a Central New York bicycle accident.

If you can hold the dog owner liable, the owner's homeowner's insurance will most likely provide coverage for the injuries, including payment of medical expenses, lost wages and pain and suffering. And if you are seriously injured, the extra money will come in handy.

If you are attacked by a dog while riding your bike, see a knowledgeable New York bicycle accident lawyer who knows how to properly investigate your claim.

O.K., I have a confession to make. I am a law breaker! Yesterday, for example, I blew through at least 5 stop signs. Why?

Because I was on a bicycle. Good excuse? Not legally. And as a New York Bicycle accident lawyer , I usually recommend that cyclists strictly adhere to the New York vehicle and traffic law. But come on! Is a cop really going to pull me over for rolling through a stop sign when I am on a bike!? Of course not. And am I endangering others (as a motorist does) when I roll through a stop sign without stopping? Of course not. So who am I endangering, if anyone? Only me. And actually, I don't' think I am endangering even myself! Let me explain.

The street I live on, Maxwell Ave, in Geneva, New York, is four blocks long. Each intersection is controlled by four-way stop signs. The City speed limit is 30 miles per hour. So when I take off for a ride down Maxwell, I don't stop at these stop signs (unless cars are coming). Instead, I slow down a bit, and look to my left and right (twice!) and just keep going. It's safe! Cars are going slowly, you can see them from far away, and they have to stop no matter which direction they are coming from, so there is plenty of time to react to them.

Why don't I just obey the law and stop? In a word, "momentum"! We Cyclist never want to give up that momentum we have worked so hard to gain. But to fully comply with the New York stop-sign laws, we would have to apply our brakes, pull at least one clip out of the pedal, and put a foot on the pavement. And lose all that momentum!

Traffic laws were made for cars. In a car-free biking world, stop signs would not even exist. Cyclists can, and do, slow down, look both ways, and proceed through intersections without endangering each other.

Idaho has it right. Its stop-sign law, first made law in 1982, and then updated in 2005, allows cyclists to treat stop signs as yield signs. If a biker looks, and no cars are coming, he or she is allowed slow down and roll through the stop sign. He or she is allowed to keep his or her hard-earned momentum!

Red lights are a different story. Stop! But stop signs, at least four-way ones, are different.

Unfortunately, New York (and the other 48 states) have not followed Idaho's lead, although San Francisco, and a few States, are considering doing so .

Fortunately, police rarely ticket cyclists who safely roll through stop signs, at least not in upstate New York.

I don't advocate careless, dangerous cycling. I see too many serious bicyclist injuries in bicycle-car collisions in my job as a New York personal injury lawyer. I am a strong advocate of safe biking practices. But let's be real. Almost no cyclists I know come to full stops at all stop signs. Let's make the law reflect reality in upstate New York.

I am a regular reader, and admirer, of Elmira bicycle accident attorney Jim Reed's New York Bicycle Accident Lawyer Blog. Jim is always one of the first to post updates on bike equipment recalls and changes in New York laws that affect cyclists. So I was not surprised to read Jim's blog post today in which he notified his readers, and me, about a new pro-cyclist New York bill (called "Merrill's Law") that is making its way through the legislative process in Albany right now. According to Jim, with a little luck, it will become law this November. The new law will require motorists to keep a "safe distance" from cyclists while passing.

Well gee, about time! Until now a motorist could legally bring his car within inches of your bike and, as long as didn't sideswipe it, he was not violating the law. That makes no sense! And as Jim and I both know from our years of representing New York bicyclists injured by cars, it makes for bad injuries, too. So it's a good thing the law is changing (we hope!).

This new law reminds me of a story my brother Tom Bersani told me. He, like me, is an avid cyclist. He took a trip to Italy a few years ago and brought his bike along. Under Italian law, motorists are required to keep a distance of 6 feet or so from bicyclists. As he was climbing a long, winding mountain road on his bike, a long line of cars trailed him. The motorists could not safely pass Tom while giving him the mandatory 6-foot distance, so they stayed behind him. When the road finally straightened out, Tom noticed that several car windows began rolling down as they passed him. He expected the Italian equivalent of a one-finger salute, or some Italian profanities to be hurled at him for slowing them down. But instead they shouted, "bravo, bravo, bravo!" They were congratulating him on his hill-climbing stamina! I guess Italians really love cyclists!

Hey, New York motorists, next time you pass a cyclist, don't just give him a "safe distance", give him a "bravo" as well!

Handling Central New York bicycle accident cases has its draw backs when you are also a bicyclist. It ruins your fun. You can't ride without thinking about the guy you are representing who may never walk again because a car at an intersection "didn't see him" and did him in. Or the guy who got pummeled by a dog that charged straight into his back wheel and sent him crashing to the pavement, causing traumatic brain injury (TBI).

So as I am out on the road trying to relax, I see every car as the enemy. Every dog is a potential lethal missile. My wife says I should either change professions or change pastimes. But if you know me you know I'll do neither.

And I wish I had a penny for every time I have heard a motorist who took out a cyclist say "I didn't see him" or "he came out of nowhere". Once the bike-striking-motorist gets lawyered up, it gets even better. At deposition he will say, "I looked carefully to the left, I looked carefully to the right, then I looked carefully straight ahead, then I made my turn, and --- boom -- there he was, out of nowhere"!

By the way, this defense doesn't work. In New York motorists are required not just to "look", but to actually see that which can be seen. No matter how carefully you claim to have "looked" if you didn't see that which there was to see, you are liable.

The interesting thing about this "I-didn't-see-him-even-though-I-looked" defense is that it makes cyclists out to be magicians. We can magically appear out of thin air! We can even make ourselves invisible! And we are especially adept at re-appearing right in front of the hood of cars! We are just dazzling, supernatural creatures, really.

What motorists who hit cyclists will find out, though, is that cyclists have even more magical powers than they thought. With a little help from good bicycle accident lawyer, injured cyclists can make money magically disappear from the negligent motorist's insurance carrier's pocket, and re-appear just as magically in the injured bicyclists' pocket. And that's a good thing. The cyclist will need that money because his magic, though truly marvelous, is not powerful enough to make his permanent, life-altering injuries disappear.

I read in the Syracuse Post Standard today that a 10-year-old skateboarder was hit by a car, and ended up pinned under it, at the intersection of Jasper Street and Highland Street in Syracuse. Firefighters had to jack up the car to free the unfortunate boarder. Fortunately, he suffered only a broken arm and some scrapes, which were treated at Upstate University Hospital. The experience must have been horrific, though. Imagine being stuck under a car!

As a Syracuse New York automobile accident lawyer, I have represented the parents of child-pedestrians with far worse injuries, including death. Nothing is harder for me than representing grieving or worried parents whose kids have been hurt or killed.

This recent Syracuse car-on-pedestrian (after all, a skateboarder is just a pedestrian on wheels!) collision should serve as a reminder to all motorists that "school's out for summer" and this means more kids, all day long, running, biking and skate-boarding around on our City streets. During the school year, car-on-child pedestrian accidents are "clustered" between 3:00 p.m. to 6:00 p.m., but during the summer months children are struck by cars all day long, even into the long, light-enhanced evenings.

Please keep a special lookout for kids this summer.

When I blogged yesterday about the Syracuse New York bicycle Accident case in which the bicyclist was abandoned at the scene with severe brain damage by a hit-and-run driver, I forgot to mention something that all New York bicyclists should keep in mind. No, it is not another safety tip. It is an insurance tip. Here me out Central New York cyclists!

The driver who struck our cyclist and left him lying there in the road obviously will not be providing auto insurance coverage to him. That's called a "hit-and-run", and of course, it's a crime. But the fact that it's a crime doesn't help our injured cyclist. What would help him is some insurance coverage for his bicycle accident. But where can he find some? Here's where: If our cyclist owns a car, or lives with a relative who owns a car, the auto insurance for that car will provide him with coverage for the hit-and-run collision. And even if he does not own a car, or live with a relative he owns one, a State-run fund called the "Motor Vehicle Accident Indemnification Corporation" ("MVAIC") will provide similar coverage.

There are two types of coverage that will be provided either by the auto insurance or (if there is none) MVAIC: (1) no-fault coverage (up to $50,000 in medical expenses and lost wages, and (2) Supplemental Uninsured Motorist Coverage ( in the law business we just call it "SUM" coverage). SUM coverage provides a minimum of $25,000 to this injured bicyclist to compensate his pain and suffering as well as any medical expenses and lost wages beyond what no-fault covers.

If you are a cyclist, is a good idea to purchase additional SUM coverage. You can purchase SUM coverage up to a level that matches your liability coverage. So, for example, if you are covered up to $100,000 for injuries you cause to others (called" bodily injury" insurance), you can purchase that same amount in SUM coverage to protect yourself if you get hit by an uninsured (or underinsured) vehicle. It is a bargain, too --- purchasing the additional coverage will raise your premiums by only a few dollars a month, and will provide you will much needed additional protection if you suffer a serious injury through the fault of an uninsured or underinsured driver.

This poor cyclist is a good example of why you should purchase the maximum amount of SUM coverage. He has a serious brain injury. He will "blow through" his $50,000 of no-fault insurance in a heartbeat. If he is laid up and can't work for a significant period of time, then the $25,000 SUM coverage won't be nearly enough to pay his bills. If he had any additional SUM coverage, it would come to his rescue.

Cyclists: Ask your insurance agent about maximizing your SUM coverage! You never know when you will need it.

In this great weather, I have been out on my bike almost every day for the last week - averaging about 30 miles a day, too. Not bad for a lawyer with a booming New York personal injury law practice as well as a wife and two kids.

I know cycling can be dangerous, but I love it, and it keeps me fit. When I am out on the road, admiring the stunning Central New York and Finger Lakes countryside, I do have, from time to time, some "scares" - a car that passes a little too close, a dog that runs out at me and forces me out into the middle of the road, or just dumb stuff I do to myself - like hitting a deep pothole that throws me off a bit.

From my bicycle accident cases, I get an up-close view of how cyclists can get injured through no fault of their own. And this gives me food for thought when I am out on the road.

And then there is the newspaper. That can be scary to read if you are a cyclist. Every so often I read about the fate of a fellow cyclist who caught a bad break. Today I read in the Syracuse Post-Standard that a hit-and-run driver struck a bicyclist this afternoon in a part of Syracuse known as "Skunk City", leaving him with a severe head injury and in critical condition (at Upstate).

As a fellow cyclist, I wish the victim a speedy recovery. And as a justice-hungry lawyer, I hope they catch the b___ who hit him and left him lying on the road like road kill. Judging from the paint the vehicle left on the bike, it appears to have been grey or silver, and it should have frontal damage. Police are asking that anyone with information call 442-5151 to report it.

It's to be expected. With the good weather comes bicycling, and with bicycling comes bike accidents. Today Syracuse police are investigating an accident at the intersection of Sumner and Euclid avenues (not far from where I grew up!) between a bicyclist and, of all people, a Syracuse City cop driving a police car. Thankfully, the bicyclist, a Syracuse University student, suffered only minor injuries. She was treated and promptly released from Upstate University Hospital.

This accident demonstrates some interesting principles. Statistically, most bike-on-car collisions are the motorist's fault. Do you think this accident might have been the police officer's fault? Let's see what happened here, and then you decide.

The police officer was heading west on Euclid Ave, and was waiting to turn left on Sumner, when a Centro bus heading in the opposite direction stopped and waved the officer through the intersection. The officer started his turn, but neither he, nor the bus driver, had observed the bicyclist traveling alongside the bus just to its right in a bike path. As the bike entered the intersection, the bike hit the police car's passenger side as the car made its left turn in front of the bike.

So who's at fault? I believe it was the cop's. He violated the bicycle rider's right-of-way. She was going straight through the intersection, as she had every right to do, and the cop was turing left, and thus was obliged to wait for her to pass.

This case demonstrates the most common cause of bike-on-car accidents; motorists failing to observe bicyclists. As a Syracuse New York bicycle accident attorney, I handle a lot of these kinds of bike-on-car collisions, and from my experience I can tell you this: There is usually no good excuse for a driver of a car failing to observe a bicyclist. A motorist is duty-bound to observe other vehicles, including bicycles, and to avoid crashing into them. Here, the cop had a duty to yield to the bike, and it is generally no excuse that he failed to she her.

He might argue, though, that the bus blocked his view of the bike until it was too late. Maybe a jury would buy that, depending on the evidence. But I doubt it.

Now here's the $10,000 question: Think that cop will issue himself a ticket?

I don't know about you, but sometimes I just like to hunt around on the internet for neat sites to reference about my hobbies and passions. Since I am an avid bicyclist, as well as a bicycle accident injury lawyer, I was hunting around today for cites with information on bicycles and bicycling and even bicycle accidents and how to avoid them. I found a great bicycle site. This cite has just about everything you want to know (example: how to make sure your bike fits right), some things you didn't know you wanted to know (example: unusual bike models), and some things you DON"T want to know (statistics for bicycling accidents and fatalities). The stats are pretty dismal. Here's a sampling:

• One in every 20 cyclists is injured annually.
• A bicyclist on average has a minor injury every three years and a more serious every fifteen years.
• Cars are to blame in 75% of car-on-bicycle collisions
• Most at-fault car drivers who kill cyclists get off the hook --- 74% of them in New York don't even get ticketed! (there is a bias against cyclists even among law enforcement).
• The first car crash ever reported in the United States involved a car-on-bicycle collision in 1896.
• About 700 cyclists die a year in the United States.
• Per mile of driving/riding, cyclists are more than 5 times more likely than motorists to die.
• About 44,000 cyclists have been killed in bicycle crashes in the United States since 1932.

There is also an interesting discussion about "safety in numbers" for bicyclists. In places where there are A LOT of cyclists (e.g., Amsterdam, Holland), the fatality rate for cyclists is lower. Conversely, places with few cyclists have a greater bicyclist fatality rate. This is because motorists are on the lookout for bicycles when they are used to seeing a lot of them, but when they are not, they just don't notice them.

There is also a very interesting analysis of whether the health benefits of cycling outweigh the risks. In other words, do the total number of life years lost through cycling fatalities add up to more than the number of years gained through improved fitness of cyclists? Answer: the benefits in terms of life-years gained outweigh the life-years lost by a ratio of 20 to 1.

So fellow cyclists - keep cycling! The risk is worth the gaim in health, joy, and happiness. And if you play it safe, and follow the rules of the road, you can reduce the risk and still get all those benefits.

Today's spring-like weather made me want to jump on my bike for the first time since last fall. Unfortunately, work got in the way! Still, I am looking forward to another cycling season.

Unfortunately, bicycle season for me also means calls from desperate injured bicyclists and their families. About 52,000 bicyclists per year are injured in the U.S., and about 800 are killed. Every year, several bicycle injury lawsuits in Syracuse and Central New York are filed. Usually these cyclists have suffered severe injuries from car-on-bicycle crashes. When a bike meets a car, guess who wins?

My experience handling bicycle crash cases has taught me that most bicycle crashes are the car driver's fault. Usually, the driver simply fails to see the bicycle. Still, there are many things bicyclists can do to minimize the chances that they will get hit by a car. I urge you, fellow cyclists, to do everything you can to avoid becoming one of Central New York's bicycle accident victims!

I recently found a great short video on bicycle safety produced by the National Highway Traffic Safety Administration (NHTSA). Check it out (click below) before you go out for your first bike ride of the season. It's a good review of bicycle safety rules. Have fun, and be careful out there.

A horrific bicycling accident took place in Onondaga County a few weeks ago. The poor guy was riding his "road" bike, that is, a racing style bicycle, along a State Route 20. He was doing everything right; had his helmet on, was wearing proper bright clothing, was riding on the right side of the road near the shoulder. As he approached an intersection, he was traveling a few car lengths behind, and to the right of, a car. Another car coming in the opposite direction allowed that car to pass through the intersection, and then, without seeing the cyclist, turned left into him. The injuries are horrible. This young man will be disabled for life, and will have a lifetime of pain and suffering. He will need major reconstructive surgery.

The case reminds me again of how dangerous bicycling on public roads is. It is a risk that I myself, and one of my partners, Lee Michaels, take on a regular basis --- we are both avid cyclists. That's one reason why we have become passionate central New York bicycle accident attorneys. Lee has had several close calls --- and injuries, including fractures, from biking accidents. I have been luckier, but maybe that's because I haven't been biking as long. Why do we do it? Why does anyone do any hobby? We love it! It's great exercise, you get marvelous views of the incredible Finger Lakes region where we live and work, and you meet great people with the same interest.

Yes, cycling is dangerous. But then again, so is life (you never get out of it alive!). The trick is to try to minimize the risks (but you can't eliminate them all). One way to do so when bicycling is to realize that many motorists simply fail to "see" cyclists. We are invisible to them! To be on the safe side, we cyclists must always assume we are invisible. Unless you actually make eye contact with a motorist, don't assume he sees you. Just because you have the right of way doesn't mean you should go --- ride defensively! For other bicycle safety tips, go to the FAQ page of our website .