Central New York Injury Lawyer Blog

Central New York Injury Lawyer Blogging Gives Way (sometimes) to Training.

May 30, 2010 | by Michael Bersani

Believe me, New York personal injury lawyers need their stress relief. And for me that means lots of vigorous exercise. Mostly I run and bike. I am training for a few short triathlons (swim-bike-run) this summer. I am participating in the Geneva, New York “Musselman” sprint triathlon as well as the Skaneateles, New York “Skinnyman triathlon race.

I wish I had time to train for the longer, “half-iron” triathlons, but with a wife, two kids, and a very busy personal injury law and medical malpractice New York law practice, I just don’t. I can get out for those 30-mile rides during the week, and for those 40 or 50 mile rides on the weekend (and I slip in a few 6-mile runs a week, and an occasional swim, too), but I just don’t have time for more. My family is important to me, so, gosh, I want to spend time with them, too!

This training has been eating into my blogging time, though. So far, I am happy to report (I think) that none of my readers is experiencing withdrawal symptoms!

Important Safety Tip: Don’t Drive a tractor Trailer While Watching Porn!

May 27, 2010 | by Michael Bersani

O.K., the headline is funny, but the story is very sad. How sad? How about a one- and two- year old who are now motherless.

Today news sources report that the driver of a tractor trailer, who was streaming porn on his laptop while he drove his rig into the back of a disabled car on the New York State Thruway (near Pembroke, about 20 miles east of Buffalo), pleaded guilty to second-degree manslaughter. The disabled vehicle had run into a deer, and was waiting for a tow truck. Its driver, a mother of the one- and three- year olds, was killed by the impact from the tractor trailer.

Sure, watching porn while driving is what made the headlines. (Sex sells, even when it kills!). But this driver was guilty of other important violations as well. 395.3 of the Federal Motor Carrier Safety Administration regulations mandates a driving/rest ratio for “commercial carriers” (essentially, tractor trailer drivers). The hours a commercial driver can drive within periods of time are strictly limited. Here, the driver didn’t get the required rest. He had only 4 hours of sleep in a 27-hour period. Worse still, the driver had “cooked the books” (actually, his driver’s “log”) in an attempt to dupe the authorities into believing he had followed the required rest/drive ratios. The authorities unearthed his lies by looking beyond his self-recorded “log”, and into his E-ZPass records and the GPS tracking for his 18-wheeler.

Bicyclist Injured By Hit-and-Run Motorist is Entitled to Insurance Coverage.

May 25, 2010 | by Michael Bersani

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.

Mom Gives Birth While Driving — Now THAT”S “Distracted Driving”!

May 25, 2010 | by Michael Bersani

I have written several blog posts about “distracted driving” – motorists driving while texting and driving while talking on their cell phones. (See those posts by clicking here, here, here and here). As I said in those blog posts, distracted driving is quickly becoming a leading cause of motor vehicle accidents, and of auto injury lawsuits, not only in Central New York and Syracuse, but all over the U.S. But this latest story brings “distracted driving” to a new level:

Last Wednesday, an expecting Minnesota mother felt labor pains, jumped in her car, picked up the father (who does not drive because he is prone to seizures) at work, and was heading straight to the hospital when the baby — well —- just “slipped out”. She GAVE BIRTH while driving herself to the hospital! The baby’s father helped by steering the car from the passenger’s seat. After birth, the mother had the father steer the car, again from the passenger seat, to the hospital. It appears that mom and newborn both checked out fine.

Now that’s what I call distracted driving — both by mom and dad!

Hit-and-Run Driver Leaves Syracuse Cyclist with Severe Head Injury

May 24, 2010 | by Michael Bersani

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.

Motorcycle Miracle Man Crashes and Lands in Back Seat of Convertible

May 23, 2010 | by Michael Bersani

When I read the Syracuse Post Standard’s report of this recent Central New York motorcycle accident, I thought perhaps I had accidentally jumped to the movie review section of the paper and was reading about a slapstick comedy. The accident happened on Route 31 in Lakeport, New York. The motorcyclist collided into the back of a Chevrolet Cavalier convertible stopped and waiting to turn left at the intersection with Coulter Cove Road. Upon impact, the motorcyclist flew off his bike and landed in the backseat of the convertible. The driver of the convertible was quoted as saying, “the next thing you know there was this big crash, and I felt something on the back of my head”. Her daughter, the passenger, then said, “mom, there’s something in the backseat”. When the driver turned around, she saw the motorcyclist lying in the back seat with his feet on her head.

I have handled a lot of Central New York motorcycle accident cases, but never one like that! Sounds more like a cartoon than an actual accident. I guess you can find humor in anything, even in motorcycle accidents, as long as no one is seriously injured.

What caused the motorcycle to rear-end the car? The biker was adjusting his bike’s mirror and didn’t notice the stopped vehicle. Lesson to be learned: Adjust your mirror BEFORE you start driving your motorcycle. Never be distracted behind the wheel of a car, or the handlebars of your bike.

Common Misconceptions about New York Personal Injury Cases, Part IV: “I Got Hurt in a Car Accident in New York and It Was the Other Guy’s Fault So I Must Have a Good Case”

May 21, 2010 | by Michael Bersani

Being hurt in a New York car accident when it’s not your fault doesn’t necessarily mean you have a good case. You have to be “seriously injured” to get compensation from the at-fault driver’s insurance. Otherwise, all you get is your no-fault benefits (up to a maximum of $50,000 in medical bills and lost wages combined), which comes from your own insurance, even if you were not at fault. (That’s why it’s called “no-fault”!)

My many years of representing Central New York car accident victims have taught me one simple lesson: New York No-Fault Law sucks! It’s unfair and outdated and ends up screwing way too many Syracuse and Central New York auto accident victims. My partners and I can get around the limitations of the No-Fault Law as well as any New York auto injury attorneys, but sometimes even the best lawyers can’t lawyer-their-way-past the worst laws. Read what blogger Eric Turkewitz has to say about New York’s unfair No-Fault Law.

Bad, yes, but it’s the law (hopefully not for too much longer – there is a bill in the works to change it). Although you might think you are very hurt, and I might think you are very hurt, and you ARE by almost anyone’s definition very hurt, you still might not qualify as “seriously injured” under New York’s strict No-Fault Law. This is especially true for “soft tissue” and “whiplash” type injuries. Unless you are out of work for more than 90 days, these kinds of injuries usually have to be permanent to qualify as “serious”, and you still might lose your case if your doctor can’t point to any “objective medical findings” proving that the car accident caused the serious injury, and that it causes a significant limitation in the use of your neck, back, etc. (Even though the No-Fault Statute itself says nothing about “objective findings”, New York’s courts have added that requirement.)

Central New York Personal Injury Lawyer: “Why I Want to Sue BP”.

May 20, 2010 | by Michael Bersani

As a mere local Central New York personal injury attorney, I really didn’t want to get into commenting on the national disaster that is the ongoing Gulf of Mexico BP oil “spill”. (I put “spill” in quotes because this word, bantered about by BP and echoed by news media, hardly seems appropriate. It is more like an underwater oil “volcano”. Take a look at the video of it here).

I don’t even want to comment about the “perfect storm” combination of cascading mistakes that led to the “spill” itself. After all, as an accident lawyer, I know all too well that big-company accidents, even cascading series of them, are all too common (because corporate cost-cutting carelessness is all too common). Nothing new here. BP, join the club of about a zillion other big corporations who have injured countless Americans with their crappy defective products!

And, heck, I don’t even feel like commenting about BP’s deliberately underestimating the extent of the “spill”. Corporate lies are just too common to push my buttons.

Common Misconceptions about New York Personal Injury Cases, Part III: “I Slipped (or Tripped) and Fell in the (Parking Lot, Store Aisle . . . Wherever) and Was Injured, So I Must Have a Good Case Against the Owner of (the Parking Lot, Store, etc.).”

May 17, 2010 | by Michael Bersani

Let’s clear this up from the get-go: The owner of the property where you slipped or tripped and fell is NOT AUTOMATICALLY liable for your fall and resulting injuries. As the plaintiff in a New York premises liability lawsuit, you have the burden of proving that the owner of the property maintained the property in an UNREASONABLY UNSAFE CONDITION.

Ok, what does THAT mean? Several things: First, you have to show that the owner could have done something to avoid your getting injured on his property. And the owner had to have time to do it. Let’s take a supermarket, for example. Sure, the supermarket makes a lot of money. But it is not God. It cannot predict that another shopper is going to drop a jar of apple sauce in the “fruits and vegetable” aisle 2 minutes before you happen to stroll down looking for a can of kidney beans. So when you slip and fall on the apple sauce, no jury on God’s earth is going to hold the supermarket liable. In fact, they might find it is your entire fault for not watching where you are going.

On the other hand, if you can somehow prove that the smashed apple-sauce jar was lying there for an hour, a jury is likely to be on your side. With all that money the supermarket is making, it sure ought to have a few employees meandering up and down those aisles every half-an-hour or so looking for customer spills.

Common Misconceptions about New York Personal Injury Cases, Part I: “I Almost Died in That Accident, So I Must Be Entitled To a Lot of Money, Right?”

May 15, 2010 | by Michael Bersani

There are many common misperceptions about New York personal injury lawsuits. I will be discussing these in my blog posts over the next few days. One of the most common mistaken ideas is that if you “are almost killed” by someone’s negligence, you must have a case. This is usually wrong. Usually, when a client says to me “I almost died in that accident”, my response is, “then you ALMOST had a case”! Let me explain by way of examples.

Let’s say you were the victim of a medical mistake during surgery. Your rushed surgeon inadvertently and unknowingly cut an artery and, as a result, you bled internally for quite a while before anyone at that hospital realized it. As you were on death’s door, they figured it out, opened you up, and stymied the bleeding. End result: You spent and extra week in the hospital, but otherwise suffered no additional harm.

You call up a Central New York medical malpractice lawyer (hopefully this one!) and tell him you want to bring a New York medical malpractice lawsuit. You are angry that the doctor was so careless that he almost killed you. Besides, he never even apologized! Do you have a case? No, at least not one worth bringing. In New York (and in every other State as far as I know), “almost dying” because of medical malpractice or other negligence is not worth a dime in court, or in settlement. You are only allowed compensation for what you ACTUALLY SUFFERED, not for what you “almost” suffered. Since you were completely unaware you were “dying” at the time, you did not suffer even from the fear of death, much less from death itself.