Central New York Injury Lawyer Blog

crosswalk.jpgI came upon some surprising statistics recently: Just as motor vehicle travel is getting safer (for those inside the vehicles), walking is getting more dangerous because motor vehicles are striking and killing more and more pedestrians.

Just look at the statistics: 22 percent fewer traffic fatalities from 2003 to 2012, while pedestrian fatalities have been climbing steadily since 2010. In 2012 alone, the pedestrian fatalities were up 6 percent from the year before. A motor vehicle kills a pedestrian every two hours and injures one every seven minutes, according to the National Highway Traffic and Safety Administration (“NHTSA”). Fourteen percent of all road fatalities are pedestrians. There are 4,000 to 5,000 pedestrian fatalities per year in the U.S.

Why are pedestrian fatalities up while motor vehicle fatalities are down? No clear answer out there. But I have a theory (are you listening NHTSA?)

In a word (actually two): smart phones. Drivers are using them, and so are pedestrians. More and more pedestrians are “texting while walking” or listening to music with earphones, and are thus unable to hear or see oncoming dangers. Meanwhile, more and more drivers are texting or dialing while driving.

What do you get when a texting driver turns in a busy intersection and meets a texting or dialing pedestrian crossing in a crosswalk? Bang!

Moral of story: Don’t text or phone and drive. If you are a pedestrian, don’t cross a road while texting or talking on the phone. Also, take those ear buds out before you cross.

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 NY Pedestrian Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

money.jpgA first offer from an insurance adjuster is like the first kiss on a date: It usually leads to something more substantial. At least that’s my experience (recently in law, and a long time ago in dating). Yes, I have plenty of recent experience (more than 20 years) in New York personal injury law.

When you are hurt because of someone else’s negligence, you are likely to get a call from an insurance adjuster fairly soon. He or she will offer you money to settle. It probably won’t be enough. My advice? Think of it as a first date. If you simply take that offer, and sign a “release”, and say goodbye, you’ll never find out what would have happened on the second date.

As Nancy Reagan used to say, “just say no”! Don’t worry about the offer evaporating. As a New York personal injury lawyer with many years’ experience, I have never seen that first offer “disappear”. I have never even seen and insurance adjuster LOWER an offer, much less take it off the table. And I have seen many, many times, indeed most times, insurance adjusters INCREASE their offer.

What makes the adjuster increase her offer?
(1) As you continue to treat for your injuries, the medical records often document more serious injuries than the adjuster or you were aware of at the first offer.
(2) If you hire a New York personal injury lawyer who has a good track record in court, the adjuster is likely to immediately rethink her initial offer.
(3) If you hire a New York personal injury lawyer worth his or her salt, they will know how to “build” your case with the adjuster, by highlighting the significant features of your medical records and the other facts of your case.

Bottom line: Don’t take that first offer. See a lawyer. Your offer is likely to increase significantly, and it is almost unheard of for it to decrease or disappear. Call me to find out more.

Keep safe!

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

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

1-315-253-3293

iStock_000008918307Small.jpgLitigation lawyers are, in a sense, at war. Each lawyer is fighting for his client to prevail. A spirited fight requires, sometimes, spirited verbal exchanges.

But there are limits. Fellow lawyers, here’s a little rule of thumb: Don’t call your opponent an “asshole”.

That’s exactly what one lawyer called another in Alexander Interactive v. Adorama Inc., a case involving a simple business dispute, and not, as one would expect given the level of vitriol, a roiling matrimonial case. The insult-hurling lawyer — whose surname is coincidentally “Savage” — dropped the “A-bomb” in an email to her opponent. Then the “Savaged” opponent – who apparently denied the charge — one-upped her by flipping the email over to the judge, who then sanctioned Ms. Savage with an admonishment, despite Ms. Savage’s pleas that her opponent had “provoked” her into her transgression.

The full email contained other “foul language”, too. Here it is in full:

You’re an asshole Dan. I have everything taped. And yes, under ny law and the rules of professional conduct, it’s allowed. If you think you’re going to sully my clients with your fictions, you’re a fool. If you try any shitt with the court, I welcome it. We have provided all requested data, all requested backups and have provided it in an orderly and accessible manner, unlike your clients. Don’t fuck me. I’m done with your unethical behavior. Any motions by you, if you’re trying to build a case for some unmeritorious motion to deflect from your clients’ unethical behavior, will include my recordings from today.
Please govern yourself accordingly.

It’s no surprise to me that this exchange happened down in New York City, where lawyerly decorum is notoriously lacking. I can’t say this would never happen in upstate New York where I practice, but I can say I have never seen it happen. Hopefully, I never will . . .

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

SETTLEweb-master675.jpgWrongful convictions in New York are probably a lot more common than we think. But proving a wrongfully conviction is indeed rare. It’s not easy peeling away at a skillful prosecutor’s evidence, especially from behind bars.

But some convicts have done it. And when they do, we should all rejoice because, “but for the grace of God, there go I”.

Does society owe such a person compensation? You bet. And compensation is what happened today in New York when Jabbar Collins (shown in the photo), a man who spent 16 years in prison for a murder he did not commit, and then spent three years in litigation against the City of New York, reached a $10,000,000 settlement. That’s about $600,000 per year in prison.

Collins was convicted of shooting to death a rabbi rent-collector in Williamsburg, Brooklyn. But Collins, who doggedly investigated his own conviction from jail, discovered, from behind bars, that the D.A.’s office had hidden important exculpatory evidence from him at the trial. He then got some help from a New York wrongful conviction lawyer, and together they discovered that the prosecutors had used the same dirty tricks in many other cases, which led to those other convictions being overturned as well.

Turns out Collins was no criminal. He’s a hero.

In all, Collins will receive a total of $13 million after settling a separate unjust conviction and imprisonment suit against New York State for $3 million last month.

And if you think that’s too much money, close your eyes and imagine the bitter despair in Collin’s heart and the black, suicidal thoughts in his mind as that prison door slammed behind him, knowing it wouldn’t open for him for a long, long time. Imagine his knowing that the world believed he committed a heinous crime he had nothing to do with. Imagine him knowing that his family had to carry the stigma of his infamy. Imagine his life behind bars surrounded by real dangerous criminals.

Personally, I’d rather have a terminal cancer diagnosis. I’d rather have my eyes pocked out. Sixteen years locked up, deprived of family, friends, joy, sun, sky, hope, love, sex, freedom. Nope, not for $13 million, not for $1 billion. If you’re honest with yourself, you probably feel the same way . . .
Keep safe!

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

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Wrongful Conviction Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

I’ve recently been blogging about New York bicycle law and how to investigate and prove bike accident cases in New York. Today I am going to answer a common question I get from other cyclists.

Because I am both a New York personal injury lawyer and an avid bicyclist, my biking buddies often ask me about bicycle laws in New York. One thing they often want to know is whether it legal for them to “take the lane” rather than stay to the far right.

The answer is “sometimes”. Section 1234(a) of New York’s Vehicle and Traffic Law (not applicable in New York City) provides that, “upon all roadways, any bicycle . . . shall be driven either on a usable bicycle . . . lane or, if a usable bicycle . . . lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic except when preparing for a left turn or when reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge. Conditions to be taken into consideration include, but are not limited to, fixed or moving objects, vehicles, bicycles, in-line skates, pedestrians, animals, surface hazards or traffic lanes too narrow for a bicycle or person on in-line skates and a vehicle to travel safely side-by-side within the lane.”

So there you have it. You should “take the lane” to turn left. Be sure to signal left! Otherwise, stay right, unless you need to avoid some danger there.

Other important New York bicycle rules to remember:

You may ride side by side, but only two abreast, and must switch to single file when being overtaken by other vehicles. Sec 1234(b).

Keep at least one hand on the handlebar at all times Sec. 1235.

Never wear more than one earphone attached to a radio, tape player or other audio device Sec 375(24-a).

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 Bike Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

bicycle helmets.jpgIn my recent blog post about how bicycle accidents happen, I promised to blog next about how to properly investigate a bike accident to prepare a New York bicycle accident case against the at-fault motor vehicle driver. I keep my promises!

The first rule is to preserve the evidence. This is important not only to prove your case, but also to prevent the defendant from later arguing that your case should be tossed out because you destroyed evidence. So save the bike! Don’t use it or fix it. Preserve it!. The damage to it may help show where the car struck the bike and the force of the impact among other things.

Of course you should get any police accident reports. Equally important, but more time consuming, go to the scene and explore it carefully. Bring a camera and photograph and film everything in sight. Look for skid marks. Have an accident reconstructionist or investigator with you to take measurements. Have someone take a video as he or she rides or walks along from the cyclist’s point of view. Do the same, from a similar car, for the driver’s point of view. Look to see if it should have been obvious to the driver that there would be bikes and pedestrians in the area. For example, are there marked bike lanes? Are there sidewalks or crosswalks?

Look around for surveillance cameras that might have captured the accident. Look at the surrounding stores, houses, traffic lights, nearby buildings. Surveillance cameras are more and more prevalent.

When interviewing the client, pay close attention to time, speed and distances. How far was the cyclist from the intersection at the time he first saw the car? How many seconds passed before the collision? How far did the cyclist travel from one point to another? How fast was he going? How fast was the car going?

To make sure the client’s memory is correct, bring him or her to the scene (if he can stand it!). This will show you and the client whether his memory makes sense. Check the facts against the well-known mathematical formula for calculating feet traveled per second at a given speed. For example, if the cyclist was going 10 miles per hour, that means he was going about 15 feet per second, so in 3 seconds he would have traveled about 45 feet. Does the client’s memory of the time, distance and speed before impact make sense given this formula? Does your math help refresh the client’s recollection of distance, time and speed?

It’s also important to explore the safety measures the cyclist (hopefully) took. Think about how you can avoid the defense blaming him or her, at least in part, for the accident. Was he wearing a helmet? Was the client wearing bright clothing? Preserve them! Was there a light on the bike? Preserve it! Was the cyclist looking in front and did he see the car? Did he try to avoid it or did he even have time?

In an ideal case, the cyclist would be looking right at the car when it suddenly cuts him off or turns into him, violating his right-of-way, and giving him almost no time to react. Either that, or the car hits him from behind when he is as far right as he reasonably can go. You probably won’t have a “perfect” case (those are rare!) but a good, solid bicycle accident investigation will ensure that you (1) preserve all the “good” evidence for your case and (2) are prepared to confront and minimize the “bad” evidence.

Good luck!

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 Bicycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

bicycle mike.jpgYeah, that’s yours truly in the photo (at the Geneva NY MusselmanTriathlon a few years ago). No, I didn’t win anything, not even for my age group, but yes, I had fun trying!

With all this great weather we’ve been having here in the Finger Lakes, I’ve been getting out on my road bike quite a bit. I try to cram in two or three 30-milers during the work week and one long one on the weekend.

Since I’ve got cycling on my mind, my next few blogs will thus be about cycling accidents, how to prevent them, and, god forbid, if you are hurt in one, how your lawyer should build your case.

Let’s start with cycling law. Motor vehicle laws are fairly consistent all across the country. Not necessarily so for bicycle laws. For example, Idaho cycling law allows bicyclists to treat a stop sign as a yield sign and a red light as a stop sign. Not here in New York. You’re actually required to STOP at stop signs and red lights.

Generally in New York State, Bicycles must follow the same rules as motor vehicles. But even though there is a near 100% overlap of rules for bikes and motor vehicles in New York, car-on-bike crashes are not like motor vehicle crashes.

First, statistically, they happen differently. The five most common car-on-bike collisions are:

(1) The left cross (the oncoming driver turns left in front of you);
(2) The right hook (the driver passes you on your left, then turns right, cutting you off);
(3) Dooring (parked car opens door – bang!),
(4) Parking lotting (driver exits parking lot without seeing you), and (5) The overtake (car strikes you while passing, or rear-ends you, even though you
are as far right as you can safely go).

If you re-read the five most common types of car-on-bicycle collisions above, you will see they all have one thing in common; the driver of the car just does not see the cyclist. That explains why, in the majority of cases, the driver cuts left across the cyclist’s path, cuts him off turning right, opens the door as the cyclist come through, pulls out of the parking lot into him, and hits him while overtaking him.

The car-on-bike collision is different from the car-on-car collision in another way, too: Damages. The bike, and biker, take almost the full thrust of the g-forces. The car, and especially the car driver, walk away unscathed.

Because car-on-bike collisions are so different, the investigation, discovery and trial techniques must also be different. My next blog will discuss bike accident investigations aimed at building a New York personal injury bicycle accident case. Stay tuned!

And keep safe!

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

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Bicycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

doubledays.jpgunited way-69782-69783-69787.jpgFor the second year in a row, the Michaels & Smolak Auburn New York Injury Law Firm is honoring United Way of Cayuga County volunteers as “hometown heroes” at all 38 Auburn Doubledays home games this year.

Here’s how it works: At each home game, one United Way volunteer is publicly recognized and honored as a “hometown hero” and receives four game tickets and food vouchers for his or her family and friends. A different volunteer is honored at each home game and the Michaels & Smolak Auburn New York Injury Law Firm funds the program, including the free tickets plus food for the “hometown heroes”.

“It’s a wonderful program and I am thrilled that they are generously continuing it again this year,” said Carrie Collins-Fadell, Executive Director of the United Way of Cayuga County.

The unique aspect of this program is how it recognizes that volunteering is not just an individual effort, but a family, community one. In a United Way press release, Michaels & Smolak attorney Dave Kalabanka, who started and runs the program, explained, “if family and friends aren’t right next to the volunteers while they are giving of their time and talents, then they are often helping them balance things at home and work, so that they can volunteer”. That’s why we at Michaels & Smolak Injury Law Firm are treating not only the volunteers, but their family and friends, as well.”

Jan Smolak, another Michaels & Smolak partner, was also quoted in the same press release saying, “there are amazing volunteers in our community that are doing all the things – little and big – that help us remain a successful community. We are happy to recognize and celebrate them for their volunteer efforts.”

Judy Lepak, a 16 year United Way volunteer, was the first honored “hometown hero” at last Friday’s season opener, followed by Melissa Flask, also a United Way volunteer, who treated her father and friends to the game on Father’s Day. Tim Donovan, a Human Services Coalition volunteer is off to the ballpark this weekend to receive his award. A list of all honorees will be available at the conclusion of the 2014 Auburn Doubledays’ season.

So readers, if you know of any Cayuga County United Way volunteers who deserve recognition, just email me your nomination. I’ll pass it along to the Cayuga County United Way.

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 Auburn NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Thumbnail image for motorcycle riders.jpgHey bikers, it’s me, your Central New York motorcycle accident lawyer with some motorcycle safety tips for heavy traffic riding. That’s where a lot of the accidents happen, so listen up. I’m warning you, you’re going to have to multi-task out there when competing with heavy traffic. And if you don’t do it right you could end up wrong. I’m talking road kill or hood ornament.

(1) Ride in open zones
Look for those gaps between vehicles and try to ride them. This will keep those big hunks of moving metal away from you and give you more room to maneuver and react.

(2) Use vehicles as shields
When you can, let those four-wheelers block for you as you pass through intersections. If some jerk blows the light or runs the stop sign, you’re protected.

(3) Watch drivers’ heads
Anticipate what a driver will do by watching his head. Usually, they won’t switch lanes or turn without moving their head one way or the other. Learn to “head read”. But never rely on the head language alone. Watch the vehicle, too.

(4) Be a “low rider”
Sometimes you can avoid a collision by accelerating rather than braking. In heavy traffic, ride a gear lower than normal so you can zip forward on a moment’s notice. As a side benefit, the higher decibels you’ll be emitting will make nearby motorists take notice of you. Here’s the low rider theme song.

(5) Stop/slow to the side
When traffic in front of you slows or stops, don’t stop or coast right behind the car in front of you. Stay a bit off to one side. This will keep you from getting rear-ended by the guy texting behind you. He’ll coast right past you and bang the car in front of you instead of you. Being off to one side will also give you a front escape route in front if needed.

(6) Scan, man!
Constantly scan the scene, including in your mirrors, concentrating on what is going on around you. No daydreaming! Be a Zen monk; live completely in the present.

(7) More than one way out
There’s almost always an escape route. As you look around, anticipate one. Think ahead: “If this guy on my left starts drifting toward me, I’m going to . . . .” Think of riding in heavy traffic as an elaborate chess game.

(8) Hover over the brakes
In a car, in thick traffic, you probably hover your foot over the brake pedal. The equivalent on a bike is to keep a finger on the brake lever and your right toe close to the rear brake pedal. That way, if someone suddenly cuts you off, you’ll be ready to “give them the finger”, that is, the finger on your brake.

(9) Be left-turn aware
When approaching an oncoming car that’s signaling a left to turn across your lane of travel, be ready for him NOT to see you and to turn into your lane. Your bright lights should be on so the driver can see you (during the day), but never trust that he’ll see you. Watch the car’s wheels and the driver’s hands on the steering wheel; if you see movement, be ready to brake, swerve or accelerate, whichever seems best for the situation. Again, hover over your brakes.

(10) Never get between a vehicle and an off-ramp
Getting between a four-wheeler and an off-ramp is like getting between a shooter and a target. Yeah, the shooter will probably see you and hold off, but what if he doesn’t? Drivers wanting to exit a highway may not see you (they often don’t see bikes!) just to their right, as they lunge for the ramp. The best way to avoid getting clobbered is to never, ever, get between a car and a ramp.

Thanks for taking motorcycle safety seriously. Now reward yourself by listening to the ten best motorcycle songs ever written.

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 Motorcycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

motorcycle riders.jpgI published these motorcycle safety rules in our Spring Newsletter, but it can’t hurt to publish them again here on my blog site. These are general motorcycle safety suggestions. My next post will give safety tips for riding in heavy traffic.

1. PROTECT YOUR MOST IMPORTANT ORGAN!
Your brain, of course! Looking cool is important (just ask any 14-year old!) but those skull cap helmets won’t protect your brain when your head gets dashed against the pavement. Wear a properly certified helmet and your chances of surviving a crash
go up dramatically.

2. BE “BLING BLING” ON WHEELS.
Wear bright clothing, a brightly colored helmet and keep that headlight on. Remember, the number one danger of being on a bike is that other motorists just don’t see you. Make them see you! Your colors and your light should be SCREAMINGat them!

3. LIKE YOUR BIKE.
More than with a car, a mechanical problem with a bike can cause a serious accident. Check your oil, tires, chain and brakes. Immediately investigate any unusual noises.

4. BE AN “EASY” RIDER.
What’s the rush? Enjoy the scenery. There’s no race. Your chances of getting into an accident go up with every mile-per-hour you increase your speed.

5. DON’T PUT YOUR “SKIN IN THE GAME”.
Wear clothing that is not only colorful, but that protects your skin. Nothing beats leather.

6. BOOZE AND BIKES? — YIKES!
Get your high from the freedom of the road. Don’t enhance it with alcohol or drugs because those things also dramatically increase your risk. And by the way, riding while you are sleepy is not much safer.

7. BE A ZEN MONK.
One of the best ways to prevent having to get peeled off the pavement is to be completely “there” on your bike. Observe everything and everyone around you. Don’t let your mind wander. Be a Zen monk out there. Better yet, be a prophet. Try to anticipate trouble before it happens. Expect cars to zip out in front of you. Expect them not to see you. Don’t take anyone or anything for granted.

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 Motorcycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293