Central New York Injury Lawyer Blog

insurance policyWe made this offer in our latest Newsletter and had a solid response from our readers. So we are now offering it to our blog readers as well:

We are offering all our NY State readers a free auto insurance review.  Why? We see it time and time again. A client comes to us with severe personal injuries suffered in a car accident. The at-fault driver has only minimal car insurance, not enough to cover all the lost income or medical expenses. Our client’s hard-earned finances are wiped out. Sometimes they need to go on welfare. You can’t get water from a rock. So if the guy who hits you does not have enough insurance, and he has no real assets to go after, you are stuck between a rock and a hard place. UNLESS you have had the foresight to buy the right kind of insurance yourself. And buying it is not expensive. It’s just a matter of knowing what to buy. You just need a little advice on how to structure your insurance policy.

Time out. Here’s a quick quiz: Do you know what SUM (Supplemental Underinsured Motorist) coverage is? What about “spousal coverage”? How about “APIP” (additional personal injury protection) If you don’t, you need to talk to us. In our experience, many insurance agents do a very poor job of educating their clients about choices in insurance policies. They often want to take your money without doing the work it takes to get you the right protection.

That’s why we are offering anyone who brings us, or mails or emails us, his or her auto insurance policy a FREE car insurance review. Seriously free, no strings attached. This is a public service, not a gimmick. We don’t sell insurance. Just send your auto policy to us or email it to bersani@michaels-smolak.com. We will give you our advice on whether you need to change anything in your insurance policy within a week. Then you can call your own insurance agent and discuss it with him or her.

As personal injury attorneys, it is our job to help seriously injured people get fair compensation so they can get back on their feet after an accident. But if you don’t have the right insurance, that is sometimes impossible. Let us help you help yourself. Let us review your auto insurance policy for FREE!

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

20130402_151224Duck_tour_londonThe photo on left is of my then 16 year-old son and me a few years ago as we were about to board the Duck Boat for a tour of Boston and its harbor. The “Duck Boat” – for those that don’t know — is a six-wheeled amphibious vehicle originally used as U.S. military landing craft during World War II, but later adapted for tourists in cities with a harbor, river or lake such as Boston, London, Philadelphia and Washington.

It was a cool ride!  We drove around B-Town, then drove right into the Harbor and kept going.  The tour guide — Duck Dude —  joked all the way through the tour while sharing useful and sometimes not-so-useful but sure-as-hell entertaining information.

But there is sad news this week for Duck Boat lovers. A Seattle Duck Boat crashed into a charter bus full of college kids. Terrible accident sending 50 people to the hospital.

Witnesses say the accident happened like this: As the Duck Boat was making a left turn it seemed to lurch suddenly, lost control, and smashed into the nearby charter bus. Why? It is too early in the investigation to be certain, but what may have caused this unusual lurching movement is a defective axle. Ride the Ducks International had issued a warning two years ago to all local Duck Boat franchises that the axle was defective and needed to be fixed to avoid failure. The boat involved in the Seattle crash hadn’t had its axle replaced or fixed.

Seattle Duck Boat owner, if that’s what happened, you’ve got a big problem.  That’s a pretty heavy injury toll. And if all those good people are maimed, mangled and otherwise messed up because you did not do what you were supposed to do, I hope you’ve got plenty of insurance.  You’re going to need it.

Corporations often cause injuries and death by cutting corners on safety to save a buck.  This case may be no different.  And as I have said over and over again in these blog posts, the job of personal injury lawyers like me is to make them pay.  Making them pay serves two purposes: (1) compensate the victim and (2) teach the negligent cost-cutting, safety-violating corporate decision makers a lesson that will — hopefully — give them an economic reason to put safety first.  If they know they will have to pay big bucks when their unsafe practices cause harm, they are more likely to avoid the harm by making their products safe.

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

 

stupid lawyerWe lawyers at Michaels & Smolak have been around the block a few times. Collectively the four of us have clocked in over 100 years of experience as New York personal injury lawyers. But even after all those years, we’ve never been sued — not even once — for legal malpractice. Not that it couldn’t happen; anyone can make a mistake. Maybe we’ve just been lucky. But we do believe we have excellent systems in place to avoid committing malpractice.

Many of our peers have not been so lucky or so organized. We often read cases where our brethren NY personal injury lawyers have been successfully sued for legal malpractice. We also sue some of those lawyers for legal malpractice on behalf of their (ex-)clients. Based on all this experience, we believe we have inventoried the most common errors NY personal injury lawyers make. Fellow New York personal injury lawyers, take note:

1. Failing to file a claim within the limitation period. We call this “blowing the SOL” (statute of limitations). This is by far the most common form of legal malpractice committed by New York personal injury attorneys. If you fail to timely file the claim, it is malpractice as a matter of law. The client will get an automatic judgment against you on negligence (though he or she will still have to prove causation, i.e., that the claim would have been successful if timely filed.) Why is this missing the SOL so common? It should not be. The very first thing a lawyer should do when he takes in a new case is diary, in several places, including in a computer tickler system, the time limitations for filing suit. One reason some lawyers miss the SOL is that they do not properly diary it in several places (computer, paralegal diary, etc.). In our office the lawyers meet twice a month to make sure we have diaried all new cases correctly, in all the right places.  We also systematically review each case when there is one-year left on the SOL, and again when there is only six-months remaining on the SOL. Another cause of missing a filing deadline is when the lawyer diaries the wrong statute of limitations, either because he miscalculated or misunderstood the statute of limitations. This is an easy mistake for the inexperience personal injury lawyer to make because, while the SOL for negligence claims is generally is 3 years in New York, it can be as short as one year (for suing a sheriff), or a year and 90 days (for suing a municipality) or two years (for wrongful death claims). Some lawyers just assume the SOL is 3 years without carefully considering or researching the multiple variations that are possible. You either have to know this stuff by heart (as we do) or look it up!

2. Failing to sue all the correct parties. Let’s say you correctly and timely filed the claim. The three year SOL then goes by while you are in suit. You then discover that there are OTHER parties who should have been sued, and/or that the parties you actually sued were the wrong parties. Too late! You have again blown the SOL, but this time not because you diaried the SOL wrong, or miscalculated it, but because you did not carefully investigate who the responsible parties were. One way of avoiding this problem is to always sue the case out with at least 6 months left on the statute of limitations, and make sure you get your depositions done before the SOL expires. That way if, at depositions of the parties you did sue, you can learn of other possible responsible parties, you have time to add them to the suit! At Michaels & Smolak, we make every effort to sue a case at least six months before the SOL expires.

3. Failure to investigate all possible sources of insurance coverage. You may have sued all the right parties, and sued them on time. Congratulations! Then you settled the case based on what you believed were the “policy limits”, i.e., the maximum payment amount in all applicable insurance policies. Again, congratulations! But if you failed to properly investigate all possible insurance coverages, and there was more available, you have committed malpractice. Inexperienced personal injury lawyers often make this error, especially in car accident cases. They don’t realize that there is often “hidden” insurance, called “supplemental underinsured motorist” coverage, in their clients’ own auto insurance policy.  That’s just one example.   The experienced personal injury lawyer knows how to ferret out all the applicable insurance policies!

4. Failure to timely prosecute the claim. If you are a New York personal injury lawyer, you have a duty not only to timely file the claim, but to timely “prosecute” the claim– meaning follow through on the claim once it is filed. If you drag your feet too long, the defense can serve you with a “90-day demand” to prosecute (CPLR 3216). If you let then the 90 days go by without engaging in further prosecution of the action, your client’s claim can be dismissed. The same thing can happen if you repeatedly fail to show up for court-ordered conferences or any court-mandated appearances. For example, in Barnave v. Davis, 108 A.D. 3d 582 (2d Dept. 2013), an attorney failed to show up at a compliance conference, and this lapse led to the dismissal of the action.

5. Failure do meet other deadlines. Filing the claim within the SOL is not the only time-sensitive action you must take. In most cases – especially when you are suing a governmental entity or when you are in federal court – other deadlines loom, which, if missed, could lead to serious negative consequences for your client’s case, and thus to a future legal malpractice lawsuit against you. By way of example only: failure to provide your expert disclosure in time (your expert may be precluded from testifying); or failure to file your “certificate of merit” on time in medical malpractice claims; or when suing a municipality, failure to serve a notice of claim within 90 days.

6. Failure to sue under all viable legal theories. If you don’t handle a lot of personal injury cases, you might not fully comprehend the array of liability theories available. For example, if a construction worker falls from a ladder on a construction site, some inexperienced New York personal injury lawyers might sue the case out only on a negligence theory of liability. But under a peculiar New York State law (Labor Law section 240), such a construction worker may have a claim not only in negligence, but also in “strict liability” against the general contractor and owner of the site for his fall from the ladder.  If the personal injury lawyer fails to sue under that legal theory, and that theory of liability would have won the case, then the client can sue his lawyer for legal malpractice.

7. Communication Errors. A lawyer is required to communicate all important developments in the case to his client, and especially settlement offers. If he does not communicate a settlement offer, and then loses the case, and the client later finds out there was a settlement offer, he or she is likely to sue the lawyer. To win the legal malpractice case, the client has to prove not only that the lawyer failed to communicate the settlement offer, but also that the client would have accepted the offer. Of course the dissatisfied client who sues her lawyer will say she would have taken the offer and will likely win.  See, Englert v. Schaffer, 96 A.D. 3d 499 (4th Dept. 2012). Always communicate settlement offers to the client, and document that you have done so!

8. Failure to properly research the law. This is obvious. There are a thousand ways a lawyer can fail to property research the law.  This can lead to the lawyer agreeing to unfavorable jury charges, or failing to object to improper evidence being admitted, or allowing his opponent to raise improper defenses, among many other things, all of which can cause a good case to crash and burn.  When that happens, like a phoenix, another case arises from the ashes:  The case against you, the lawyer who destroyed the original case!

9. Failure to properly protect and advance client’s rights at trial. Most strategic decisions lawyer makes at trial are protected from legal malpractice suits if the lawyer can show that they were judgment calls. There are thousands of judgment “calls” a lawyer must make during the frenzy of trial, sometimes on the spur of the moment, including what questions to ask in cross-examination, what witnesses to call or not call, how to make the closing argument, etc. Trial is a battle ground. Do I attack here or there? Should I emphasis this or that? Try second guessing a general during an invasion. Hind sight is 20/20, but the law recognizes that attorneys have discretion in battle. Once in a while, though, the lawyer makes such a terrible decision or error at trial that it can be the grounds for a legal malpractice case.  An experienced personal injury trial lawyer is unlikely to make such a mistake.

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 Legal Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

dead treeI am representing – not for the first time – a personal injury plaintiff who was struck and injured by a falling tree. Very strong case.  But when I tell non-lawyers I am representing a falling-tree victim, they blurt out something like this:

“Wow, a tree falls and you can sue? That’s what’s wrong with our system. A tree falling is God’s fault. Who the hell are you going to sue? God?”

And if they really want an explanation (and are not just venting against our tort system), I respond something like this:

God did not send this tree down on my client. The State of New York did. This tree fell on a main trail in a popular State of NY park, right where many visitors stop to admire a gorgeous view of water falls. The Park has a legal duty – and an internal policy – of removing trees that have obvious and visible defects, such as decay and rot, that are likely – as measured by well-established arborist science — to cause the tree or its branches to fall. They do not have any obligation to remove any trees at all – even ones likely to fall — except in areas of their park where visitors are likely to walk or gather, such as on trails, camp grounds, or picnic areas.

In this case, the tree that fell was located in one of the most popular areas for viewing the nearby water falls. The decay of the tree was extremely visible, covering more than 40% of the tree’s diameter starting near the base and all the way up into one of the tree’s main junction trunks. The State broke every rule in the book by failing to remove this hazardous tree in a popular gathering area.  It was an accident waiting to happen.

What are the consequences to my client? The tree fell on my client as he admired the falls on a clear, beautiful spring day. All he heard was a loud “snap” and the next thing he knew he was on the ground with a 30-foot high tree lying on top of him. He then experienced an unbearable pain in his lower leg. A witness then pointed out to him that the section of his leg below the knee was literally at a 90 degree angle to the rest of his leg. (Believe me, it’s hard to look at the photos).

So yes, we are suing New York State because the State Park’s rangers did not do what they were supposed to do, and as a result, my client has lost income, has undergone surgeries, has all kinds of metal rods and pins and screws in his leg, and has a leg that will never be the same. It will affect the way he walks and lives the rest of his life.

Our lawsuit serves two purposes: (1) to fairly compensate my client for his injuries and (2) to teach the State park officials a lesson so that they will take much more care to avoid a similar accident in the future.

And it could easily happen again, if the State does not change its ways. Falling tree injuries are not uncommon. Just last week a portion of a tree fell on five people in Bryant Park, a very popular and crowded park in midtown Manhattan.  I don’t know anything about that case except what was reported in the New York Times. Sometimes trees do have internal defects or rot that can’t be seen, and sometimes those trees do fail. Under such circumstances, no one is liable. But if the tree showed visible and significant decay or other defects, as in my case, then the owners of Bryant Park should be liable.

Click the link here to see more information regarding falling tree or falling branches injury claims (in a prior blog post).

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 Tree Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Woman's and Man's hands with money isolated over white

I am sure you can guess why many of our severely injured personal injury victims tend to fall behind in their bills. Hint: They can’t work! And while their debts piles up, their personal injury claim may not settle or get to trial for many months to come. Solution? They can just get a loan from us, their lawyers, right? Wrong! As lawyers we are prohibited from lending our own clients money — it’s considered a conflict of interest. Our hands are tied! So what do we do?

We do everything in our power to keep them afloat, except lend them our money. And we have many tools to get the job done: We can help them apply for New York State disability insurance and social security disability. We can help them get loans from family or friends by making a legal promise to those lenders to pay them off first – even before we pay our client – from any settlement or judgment we obtain. If our clients need more economic help still, we can refer them to a commercial claim lender who will provide cash in exchange for a “lien” against the personal injury case. The “lien” entitles the lender to be paid first from the personal injury settlement or judgment, plus interest.

And if all else fails, there’s bankruptcy. But we do everything we can to keep our clients from filing for bankruptcy. That’s a last resort. Why? After all, bankruptcy wipes clean most or all the client’s debts, giving our client a “fresh start”. What’s wrong with that?

What’s wrong with it is that our client’s personal injury claim passes from our client to the bankruptcy trustee, who now owns it. Our client is no longer our client. Instead, it is the bankruptcy trustee. That’s because the personal injury claim was an “asset” which, along with all the other assets of the bankruptcy petitioner, now belongs to the bankruptcy trustee. Now any compensation we obtain for pain and suffering or lost income won’t go into our injured client’s pocket – it will bypass him almost completely and land instead in the bankruptcy trustee’s pocket, who will then take his fee and distribute what remains to the bankruptcy creditors.

But there’s still hope for our injured client. If the settlement or judgment is big enough, and all the bankruptcy creditors get paid off in full, then our injured client get what’s left over. I should also mention that the injured plaintiff gets the first $7,500 of the net personal injury settlement or judgment before the bankruptcy trustee touches a dime. The injured plaintiff thus never goes away empty handed.

But still, representing a client who has suffered a severe injury who may end up with only $7,500 in compensation does not sit well with us. That’s why, if you are our personal injury client, we will do everything we can to keep you out of bankruptcy. We would rather pay the big bucks to you than to a bankruptcy trustee!

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

boatingEveryone knows that driving while intoxicated (DWI) is a serious crime that can land you in jail. But few people know about boating while intoxicated (BWI) laws.

When we think of boating, we think of relaxing or even partying on the water, often with a cool beer in hand. We would never even consider doing the same while driving a car!

But the popular image of boozing while boating as “acceptable” behavior does not match the current state of the law in New York State. In 2006, Albany finally woke up to the statistical fact that boating while intoxicated is just as dangerous as driving a car while intoxicated. It thus passed a law ratcheting up the criminal penalties for boating while intoxicated to match those for driving a motor vehicle while intoxicated. And the BWI blood count limit is 08%, same as for driving a car. (The legal limit for minors is .02%).

Not all States are “on board” (pun intended!) with New York’s tougher boating laws. But they are getting there. For example, a recent tragic accident in Arkansas prompted legislatures there to follow in New York’s footsteps.

New York is behind, though, on one area of boating law. If you own a car, you are required to have liability insurance to cover bodily injury you, or anyone who uses your car with your permission, negligently cause others. No such law in New York applies to boats. If you are struck and injured or killed by a drunk boater, it is a crap shoot as to whether there will be any liability insurance coverage. Only forty percent of boats on our waters have boating liability insurance. If a negligent boater happens to own a home, his homeowner’s insurance may provide coverage, but usually not (boating is “excluded” in most homeowner’s insurance policies).

But even though there is no law requiring boaters to purchase boating insurance, they should! First, it is much cheaper than auto or home insurance. Second, it not only protects boaters from lawsuits brought by those they may have inadvertently injured, it also protects boaters and their passengers when they get injured by uninsured boaters! Uninsured boater coverage pays for medical treatment, lost income and pain and suffering compensation you and the occupants of your boat would have received from the negligent uninsured boater had he been insured. In other words, when the at-fault boater does not have boating liability insurance, you can put a claim in under your own boating insurance policy for damages the at-fault boater is legally liable to pay for but does not have insurance coverage to pay for.

In our humble opinion, since it is proven that BWI is as dangerous as DWI, and since New York recognizes this fact in its criminal law, it should take the next step and recognize this fact in its insurance requirements. Why should the law punish drunk boating the same as drunk driving but not give equal protection — by requiring liability insurance —  to the injured victims of drunk boating?  Answer:  It should not.  Albany should require boating liability insurance on all boats in New York waters.

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 Boating Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

 

The following Article appeared in the Auburn Citizen Newspaper yesterday.  Pretty proud of my firm:

Volunteering: Michaels & Smolak program honors Auburn’s ‘heroes’

hometown

When you think of a hometown hero, what comes to mind? Is it a first responder such as a police officer, firefighter or EMT? Maybe it’s an educator, a nurse, someone that stopped to help someone in need.

When the law firm of Michaels & Smolak began thinking about doing something new to support the community, they looked to the United Way of Cayuga County as a natural fit. David Kalabanka of the firm said the United Way has “a firm understanding of the community’s pulse, especially when it comes to volunteers.”

Dave says that they like to give back and support local organizations, especially youth-based groups. When discussing the firm’s already active community involvement, they knew they wanted something different and a way to recognize more individuals. He said that working with the United Way came to mind because they “truly have eyes and ears in the community as to who is working to make it a better place.”

The result was a decision to recognize the many volunteer “heroes” that do great deeds, often unnoticed, throughout the region. And, so in 2013, the Everyday Hometown Heroes program began.

“Volunteers can often do thankless work, very graciously,” Dave said. “They are the people doing the tasks that make this a community and make it better.”

The Everyday Hometown Heroes program allows the United Way to recognize the efforts of one Cayuga County champion at each Auburn Doubledays home game with four box seat tickets and a $10 concession voucher. The hero is recognized briefly in the fourth inning by the Doubledays staff, which reads a paragraph about why this individual is deserving of this honor. Michaels & Smolak kindly funds the entire program.

“Michaels & Smolak has generously offered the Everyday Hometown Heroes program at the Auburn Doubledays for the past three years to all of our volunteers,” said Carrie Sue Hanno, interim executive director of the United Way of Cayuga County. “The United Way could not accomplish all that we do without the dedicated volunteers that provide us with tremendous talent, knowledge and the most valuable asset: time.”

The United Way seeks the help of its 23 partner agencies and 41 programs throughout the county in identifying these individuals. United Way and other community volunteers are on the front lines of turning actions and ideas into sustainable community solutions. Volunteer opportunities run the gamut of possibilities, from helping people learn to read to mentoring youth to serving on boards and committees. No matter what the task, they are giving their time, talent and resources into making our community stronger and ensuring opportunities for all.

For example, Carrie points out that the United Way’s CA$H program is such a success because of many community members who take time to learn a skill and then spend more time helping others get to a better financial place. With the free tax return program, 757 families were helped this year.

Additionally, all United Way committees are all comprised of volunteers who bring ideas, direction and a voice to the organization. They also have great office volunteers that really help them to get the job done.

Since the program started, the following individuals and groups have been recognized for their service to the community, the partner organizations, and the United Way of Cayuga County:

• Pat Allen

• Debbie Anderson

• Michelle Barber

• Sara Buhl

• Jessie Caza

• Jim Daddabbo

• Tim Donovan

• Melissa Flask

• JoAnne Field

• Felicia Franceschelli

• Cheryl Gabak

• Kimberly Gilfus

• Barbara Graney

• Ginny Kent

• Jennifer Haines

• IGNITE

• Renee Jensen

• Judy Lepak (first Hometown Hero)

• Lynne Marinelli

• Laura Marquart

• Susan Marteney

• Ted and Anne Mosley

• JD Pabis

• Karen Quest

• Tom Schuster

• Jamie Sears

• Nancy Sumner

• Joan Taggart

• Marion Wezowicz

• Laurie Whiting

• Jon Wilcox

Carrie noted, “I am thankful that Michaels & Smolak law offers the Everyday Hometown Heroes program to show the family and friends of our volunteers how much they are appreciated and that they can be proud of the work they do to help balance things at home while their volunteer loved one is giving of themselves.”

 

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

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

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

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

What!?

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

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

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

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

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

He single-handedly killed it.

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

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

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

Keep safe!

Mike Bersani

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

Michael G. Bersani, Esq.

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

1-315-253-3293

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

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

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

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

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

Keep safe!

Mike Bersani

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

Michael G. Bersani, Esq.

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

1-315-253-3293

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

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

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

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

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

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

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

Keep safe!

Mike Bersani

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

Michael G. Bersani, Esq.

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

1-315-253-3293