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De Minimis Defect

What Is De Minimis Defect? Often in trip and fall cases, the party responsible for maintaining the property where an injury occurred will claim that the defect is "de minimis".  The courts consider a defective condition to be "de minimis", and hence not actionable, if the defect is "trivial", "insignificant", or "insubstantial".  Essentially, the argument is that although there may be a defect (such as an elevated sidewall flag), if the defect is very minor or slight, the court can decide that the defect is not dangerous enough to justify holding the property owner or tenant legally responsible to the injured party for the injuries sustained.  The courts have resisted setting specific dimensions for what is, and is not, [...]

Court of Claims

What Is the Court of Claims?The Court of Claims is a separate and special court system set up specifically for cases against the State of New York and its various branches and divisions. For example, if you are struck by a New York State police vehicle, you are not permitted to sue in the regular state court system. The case must be brought in the Court of Claims. There are a number of procedural differences, most importantly that there is no right to a jury in the Court of Claims. All trials are bench trials. While the same substantive laws apply, the outcomes can be vastly different. The Attorney General's office, which represents the State of New York in [...]

Landlord’s Duty To Prevent Assaults

Landlord's Duty To Prevent Assaults If you were assaulted by a third party in your apartment building, you of course can sue the perpetrator, but the landlord may also be liable to you to compensate for your injuries and pain and suffering.  Landlords have a duty to take minimal precautions to protect tenants from the reasonably foreseeable criminal conduct of third parties and are liable to an injured tenant if the landlord's conduct caused the assault.  The important factors in most cases like this are whether the assault was foreseeable and whether the landlord took reasonable steps to prevent that foreseeable assault from occurring.  For example, in a building lobby where assaults have occurred prior to your incident, [...]

NEW YORK’S HIGHEST COURT EXPOUNDS AND RE-DEFINES PROXIMATE CAUSE

NEW YORK’S HIGHEST COURT EXPOUNDS AND RE-DEFINES PROXIMATE CAUSE The Court of Appeals of New York in Hain v. Jamison, 28 NY3d 524 (Dec 22, 2016) engaged in a hornbook exposition of proximate cause and defined the law on this issue.  The Court of Appeals unanimously revered the Appellate Division and rendered its opinion. The Opinion of the Court of Appeals: I. Decedent, the wife of plaintiff, was struck and killed by a vehicle driven by one of the Jamison defendants as decedent was walking in the northbound lane of a rural road late one evening [FN1]. Plaintiff, individually and on behalf of decedent's estate, subsequently commenced this negligence action against the Jamison defendants and Drumm Family Farm, [...]

Sidewalk Laws in New York City

Sidewalk Laws in New York City New York City has about 13,000 miles of sidewalks, which are heavily travelled upon by pedestrians.  It is therefore important that the sidewalks are safe and free of defect or dangerous conditions that would cause fall and injury.  Sidewalks are subject to wear and tear and to the effects of the environment and climate.  Sidewalks crack, buckle, collapse; sidewalks slope with downward depressions or upward elevations; sidewalk cracks or holes accumulate moisture that cause deterioration and distortion; sidewalks are uplifted by tree roots; etc. The City of New York enacted a change to the law concerning property owner liability for injuries caused by unsafe sidewalk conditions. The law, Local Law 49 of [...]

NEW YORK’S HIGHEST COURT DEFINES THE BURDEN OF PROOF BETWEEN THE PARTIES REGARDING A LATE NOTICE OF CLAIM FILING (RESOLVING THE SPLIT OF AUTHORITY AMONG THE JUDICIAL DEPARTMENTS).

NEW YORK’S HIGHEST COURT DEFINES THE BURDEN OF PROOF BETWEEN THE PARTIES REGARDING A LATE NOTICE OF CLAIM FILING (RESOLVING THE SPLIT OF AUTHORITY AMONG THE JUDICIAL DEPARTMENTS). The Court of Appeals of New York State in Matter of Newcomb v Middle Country Central School District, 28 NY3d 455 (Dec. 22, 2016) clarified the respective burdens of the parties in demonstrating substantial prejudice (or lack thereof) suffered by a public corporation as a result of a prospective plaintiff’s filing of a late notice of claim. The Opinion of The Court of Appeals: The issue in this appeal is whether the lower courts abused their discretion in [*2]denying petitioner's motion for leave to serve a late notice of claim [...]

PEDESTRIANS – WALK ALERT AND ATTENTIVE!

PEDESTRIANS – WALK ALERT AND ATTENTIVE!Recent studies find an increase in pedestrian fatalities.The spike in pedestrian deaths and injuries is attributable a few factors.  Distraction by cell phones and electronic devices seems to be a prevailing cause.  Interestingly, it is not only the vehicle drivers distracted by cell phone use while driving but also the pedestrians who engage in the use of cell phones and electronic devices while walking!Pedestrians cannot assume because they are pedestrians that vehicle traffic will yield to them.  Pedestrians cannot walk (or jog) without observation and look-out.  Pedestrians cannot be oblivious to traffic around them. It’s bad enough that pedestrians are targets of unyielding turning vehicles, speeding vehicles, red-light and stop-sign disobeying vehicles (not to [...]

A Bifurcated Trial – What it Means for Your Personal Injury Case?

What is A Bifurcated Trial? In a personal injury case, depending in which county your case is brought in New York State, your action may have to be tried in two trials.  That is called a bifurcated trial.  Michael Manoussos & Co PLLC, a New York City personal injury law firm understands the ramifications of bifurcated trials and have the experience to maximize your recovery. In a bifurcated trial, the trial is broken up into two trials.  That is, the first trial is the liability phase, where only the issue of fault is tried and determined and the jury decides whether or not the defendant is liable and should be responsible for the happening of the accident or [...]

Innocent Victims of Fraud

Innocent Victims of Fraud Insurance fraud is a serious offense and the consequences can be severe, including jail time and fines.  There is not much debate about whether individuals who commit insurance fraud should be punished.  Insurance fraud is a two-way street; that is, individuals who seek to defraud insurance companies and insurance carriers who seek to defraud the consumers and insureds through bad faith or improper practices. Let's take, however,  the example of a passenger in a motor vehicle accident, who is entitled to no-fault insurance benefits to cover medical expenses, a portion of lost wages, and other reasonable and necessary expenses.  But if that accident is determined to have been "staged"?   The no-fault insurance carrier can [...]

One “Serious Injury” = All Injuries in

One "Serious Injury" = All Injuries CompensableWe discussed in a previous post that not all injuries from a motor vehicle accident are compensable; only "serious" injuries are entitled to compensation for pain and suffering.  The term "serious injury" is defined in the Insurance Law and the Courts have further defined "serious injury" in numerous appellate cases.  What if there are several injuries and some are "serious", but some are not?  In this scenario, the Courts have held that once the plaintiff proves a "serious injury" with respect to any body part, all injuries are then compensable under the law.  This means that, for example, if you sustained a fractured wrist in a motor vehicle accident (which is a "serious" [...]