2010 WL 2277735 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Twelfth Judicial District, Bronx County, New York.

Lisa Sanchez v. John E. Gonzalez Rose Brand Wipers, Inc., and Ryder Truck Rental Inc.

No. 15393/07

DATE OF VERDICT/SETTLEMENT: April 29, 2010

TOPIC: MOTOR VEHICLE - PEDESTRIAN - MOTOR VEHICLE - SINGLE VEHICLE - MOTOR VEHICLE - CROSSWALK - MOTOR VEHICLE - QUESTION OF LIGHTS

Pedestrian Alleged Truck Failed to Yield the Right of Way

SUMMARY:

RESULT: Mediated Settlement

Award Total: $2,750,000

Approximately one month before the scheduled trial date, the parties negotiated a $2.75 million settlement, which was established via the guidance of mediator Michael McAllister of JAMS.

EXPERT WITNESSES:

Plaintiff: Albert R. Griffith, EdD; Vocational Rehabilitation; Newark, NJ Noel Perin, M.D.; Neurosurgery; New York, NY Ronny Hertz, M.D.; Pain Management; New York, NY

Defendant: Charles A. Kincaid, Ph.D.; Vocational Rehabilitation; Hackensack, NJ Jerome M. Block, M.D.; Neurology; New York, NY Jessica F. Berkowitz, M.D.; Radiology; Port Chester, NY Maurice C. Carter, M.D.; Orthopedic Surgery; New York, NY

ATTORNEYS:

Plaintiff: Stephen J. Murphy; Block O’Toole & Murphy, L.L.P.; New York, NY (Lisa Sanchez); David L. Scher; Block O’Toole & Murphy, LLP; New York, NY (Lisa Sanchez)

Defendant: Daniel J. McNamara; DeCicco, Gibbons & McNamara, P.C.,; New York, NY (John E. Gonzalez, Rose Brand Wipers, Inc.); None reported (Ryder Truck Rental Inc.)

JUDGE: Howard R. Silver; Michael McAllister

RANGE AMOUNT: $2,000,000-4,999,999

STATE: New York

COUNTY: Bronx

INJURIES: Sanchez was transported from the scene to St. Luke’s-Roosevelt Hospital. She claimed that she sustained a non-displaced fracture of the right foot’s fifth metatarsal and a left wrist injury, consisting of a distal radioulnar joint dislocation and a triangular fibrocartilage complex tear.

Facts:

On March 27, 2007, plaintiff Lisa Sanchez, 54, an administrative assistant for a music school and at a funded research study at a hospital, walked out of her job at St. Luke’s-Roosevelt Hospital in Manhattan, and toward the Columbus Circle subway station. As she attempted to walk east across Columbus Avenue, at its intersection with 60th Street, a rental truck struck Sanchez as it attempted to make a left turn from 60th onto Columbus Avenue. She claimed that she sustained injuries to her left wrist, right foot and neck.

Sanchez sued the driver of the truck, John Gonzalez; his employer and renter of the vehicle, Rose Brand Wipers, Inc.; and the truck’s owner, Ryder Truck Rental Inc. He alleged that Gonzalez was negligent in the operation of his vehicle and that the remaining defendants were vicariously liable for his actions.

The action against Ryder Truck Rental was discontinued prior to trial, and the matter proceeded to mediation against the remaining defendants.

Sanchez claimed that she had a pedestrian walk signal in her favor as she attempted to cross the street. She also alleged that she was walking within the designated crosswalk at the time of the accident. Plaintiff’s counsel contended that Gonzalez failed to keep a proper lookout and attempted to make a left turn when it was unsafe to so.

Gonzalez claimed that he had a green light in his favor as he entered the intersection and began his turn. He alleged that he observed the plaintiff walking outside the confines of the crosswalk just before contact and that Sanchez was attempting to cross the street against a red pedestrian signal. Thus, defense counsel argued that Sanchez actions were the proximate cause of the accident.

Plaintiff’s counsel presented medical records documenting that some time later, Sanchez began complaining of neck pain that radiated down into her arms. She was ultimately diagnosed with disc herniations at C4-5, C5-6 and C6-7 with radiculopathy. Thereafter, she began treating with physical therapy, medication and received one trigger point injection to address her neck pain and limitations prior to surgery. Sanchez claimed that when conservative treatment failed to relieve her symptoms, she consulted with a spine surgeon and ultimately underwent an anterior cervical discectomy with fusion at C4-5, C5-6 and C6-7.

Sanchez alleged that the fusion surgery failed to relieve her radiating neck pain and that she eventually began to suffer from new symptoms of discomfort and difficulty swallowing. As a result, she underwent multiple trigger point injections and consulted with a new surgeon, a pain management doctor and an otolaryngologist, who all recommended a second neck surgery. The second procedure utilized a combined anterior/posterior approach, involving the removal of the plate that was inserted during the first surgery approximately one year before and a removal of the spinal processes from C3 through C7. The procedure also consisted of a decompressive laminectomy and a bone graft fusion from C3 through C7.

Sanchez claimed that she was able to continue working two jobs from the time of the accident up until her second neck surgery, which was more than two years later. However, she alleged that she became permanently disabled from employment after the second neck surgery. She claimed that her neck is now significantly limited in terms of mobility, especially give that four vertebral levels of her cervical spine have been surgically fused. Sanchez alleged that the limited mobility of her neck coupled with her pain has limited many aspects of her life, including her ability to work, socialize and interact with her children. The plaintiff also claimed that she would require ongoing medical treatment as a result of her injuries.

Defense counsel would have argued that the plaintiff’s unrelated pre-existing medical conditions, including congestive heart failure and diabetes, limited her life span and therefore greatly decreased the extent of any alleged future damages.

The defendants’ expert radiologist would have testified that she found that the minimal damage shown on the plaintiff’s cervical MRI films were all degenerative in nature and all pre-dated this accident. The defendants’ expert neurologist also examined Sanchez and found that she had no significant neurologic deficits relative to her neck at all. The defendants’ orthopedic expert would have further testified that Sanchez’s neck problems had nothing to do with the accident, and pointed to radiographic studies and operative findings of the plaintiff’s own surgeon that revealed her neck condition to be degenerative in nature.

Thus, defense counsel contended that the plaintiff’s injuries were not causally related to the accident and pointed to the fact that Sanchez did not complain of neck pain at the scene of the accident or at the emergency room that day. In addition, the defendants’ vocational rehabilitation expert would have testified that Sanchez was still capable of performing work.

Insurer:

One Beacon Insurance Co. for John E. Gonzalez and Rose Brand Wipers, Inc.

ALM Properties, Inc.

Bronx Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 28, Issue 1

2010 WL 2277794 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Twelfth Judicial District, Bronx County, New York.

Porforio Hernandez v. Acculift Sales, Inc.

No. 8265/07

DATE OF VERDICT/SETTLEMENT: April 28, 2010

TOPIC: NEGLIGENCE - NEGLIGENT MAINTENANCE

Plaintiff Claimed Lift Truck’s Defect Not Noted by Servicer

SUMMARY:

RESULT: Verdict-Defendant

Award Total: $0

The jury rendered a defense verdict.

EXPERT WITNESSES:

Plaintiff: George H. Meinschein; Mechanical; Freehold, NJ Herbert S. Sherry, M.D.; Orthopedic Surgery; New York, NY

Defendant: Edward Crane, M.D.; Orthopedics; New York, NY John McManus, P.E.; Engineering; Purchase, NY Robert A. Tantleff, M.D.; Radiology; East Meadow, NY

ATTORNEYS:

Plaintiff: John H. Shields; Hill & Moin LLP; New York, NY (Porforio Hernandez)

Defendant: Victor A. Vincenzi; Litchfield Cavo LLP; New York, NY (Acculift Sales Inc.)

JUDGE: Robert E. Torres

RANGE AMOUNT: 0

STATE: New York

COUNTY: Bronx

INJURIES: Hernandez was taken to the hospital the night of the accident, where he was treated and released for a bruised and swollen left knee. He underwent an MRI three months after the accident, which was negative. A year later, Hernandez underwent arthroscopic surgery to treat a torn anterior cruciate ligament and torn meniscus in his left knee. He had a second surgery one year later to implant hardware into his knee. He followed up with physical therapy.

Facts:

On July 12, 2004, plaintiff Porforio Hernandez, 26, a data entry clerk, was operating a motorized lift truck at Yankee Stadium, in the Bronx. Hernandez claimed he was checking locks on concession stands, along with two fellow employees of Centreplate, which operated concessions for the stadium. Hernandez claimed that the truck experienced brake failure while going down a ramp, forcing him and the two passengers to jump off. Hernandez claimed that he sustained an injury of his left knee.

Hernandez sued Acculift Sales Inc., the company that sold the lift truck to Centreplate. He alleged the defendant of negligent maintenance and repair, creating a dangerous condition.

Hernandez claimed the lift truck wouldn’t stop as it accelerated down a ramp in Yankee Stadium, forcing him and his co-workers to jump off. Hernandez claimed he injured his knee when it struck part of the lift. He claimed Acculift, which provided maintenance and repair services to Centreplate for its purchased products, failed to identify and fix the brake failure problem, which would have prevented the accident. He also claimed that the lift wasn’t inspected for load.

Acculift contended that a repair of the lift truck in question was conducted on July 8, 2004, four days before the accident, in which the brakes were replaced. Acculift claimed a warehouse supervisor signed an invoice on July 8, stating that the repair was satisfactory. The defendant further claimed that an inspection it conducted on the truck, after the accident, proved it operated properly.

Acculift claimed that according to Hernandez’s supervisor, it was unknown whether he was trained or authorized to operate the lift truck. Acculift claimed, hence, that the accident was Hernandez’s fault for using a vehicle he didn’t know how to operate.

Hernandez claimed he never went back to work following the accident, and has been on worker’s compensation. He claimed residual pain and discomfort in his left knee, which prohibited him from physical activity, like playing basketball. He claimed his injuries prevented him from pursuing a new job, and sought $1.5 million in damages for past and future lost earnings, medical costs and pain and suffering.

Acculift contended that Hernandez’s injuries were not causally related to the accident in question, since his hospital records stated he had stability in his left knee, up to one week after the accident. Acculift further contended that Hernandez’s MRI from three months after the accident showed no tears or knee damage. The defendant also claimed that Hernandez could have gone back to work as a data entry clerk, since the job wasn’t physically demanding.

Insurer:

American Hardware Mutual Insurance Co.

ALM Properties, Inc.

Bronx Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 28, Issue 1

2010 WL 2277739 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Twelfth Judicial District, Bronx County, New York.

Ann Hernandez v. Horwith Trucks, Inc. and Robert Raymond Evans

No. 13058/07

DATE OF VERDICT/SETTLEMENT: April 21, 2010

TOPIC: MOTOR VEHICLE - PEDESTRIAN - MOTOR VEHICLE - QUESTION OF LIGHTS

Motorist Claimed Plaintiff Darted Into His Vehicle’s Path

SUMMARY:

RESULT: Verdict-Defendant

Award Total: $0

The jury rendered a defense verdict.

EXPERT WITNESSES:

Plaintiff: Ching Wen, DDS; Dentistry/Odontology; Bronx, NY Gautam K. Khakhar, M.D.; Physical Medicine; Bronx, NY Robert Oropall, DPM; Podiatry; Bronx, NY Stuart W. Sachnin, M.S.; Vocational Assessment; Elmsford, NY

Defendant: Martin J. Barschi, M.D.; Orthopedics; White Plains, NY

ATTORNEYS:

Plaintiff: Gregory M. LaSpina; Borchert, Genovesi, LaSpina & Landicino, P.C.; Whitestone, NY (Ann Hernandez, Ann Hernandez)

Defendant: Christopher J. Turpin; Cartalfalsa & Turpin; Pearl River, NY (Horwith Trucks Inc., Horwith Trucks Inc., Robert Raymond Evans, Robert Raymond Evans)

JUDGE: Alison Y. Tuitt

RANGE AMOUNT: 0

STATE: New York

COUNTY: Bronx

INJURIES: Hernandez claimed to have sustained a crush injury of her right foot, which resulted in fractures to two sesamoid bones, one at the great toe and one at the base of the fifth toe. Hernandez claimed that her podiatrist took his own X-rays and identified the fractures. She had a tear in the web space between her great toe and her second toe, which required nine stitches to close and resulted in a hypertrophic scar. She also claimed to have sustained peroneal nerve damage, resulting in a neuroma, which caused chronic pain and swelling of the right foot.

Facts:

On Feb. 15, 2007, plaintiff Ann Hernandez, 28, a lab technician, was crossing Broadway at the intersection with West 225th Street, in the Bronx, when she was in an accident with a tractor-trailer driven by Robert Raymond Evans. Hernandez’s right foot was run over.

Hernandez sued Evans and the tractor-trailer’s owner, Horwith Trucks Inc. She alleged that Evans was negligent in the operation of the vehicle and that Horwith Trucks was vicariously liable.

Plaintiff’s counsel contended that Hernandez had the right of way and that the “walk” signal was illuminated. Plaintiff’s counsel argued that Hernandez crossed the street in the crosswalk and that Evans ran a red light.

Defense counsel contended that Evans had the green light and that Hernandez darted onto the street. Defense counsel opined that Hernandez did not cross the street in the crosswalk. The responding police officer testified that Hernandez was not lying in either the north or south crosswalks when she arrived at the scene, minutes after the accident.

Hernandez further claimed to have cervical strains and sprains, a bulging disc at C6-7, with radiculopathy into both arms and a disc herniation at L5-S1, with radiculopathy into both legs. She also fractured a tooth, which required a root canal and a crown. Hernandez also claimed that she had psychological problems from the accident, including nightmares, flashbacks and depression.

Hernandez was taken to the emergency room via ambulance following the accident. She underwent a series of X-rays, received sutures for the tear on her foot and was released. She treated with a podiatrist and an orthopedist, who placed her in a walking boot. She also had several injections for pain and underwent physical therapy for two years.

Hernandez claimed that she would need future treatment, including pain management and continuing treatment with her podiatrist. She contended that her crown on her tooth would only last approximately five years so they would need to be replaced periodically.

Hernandez claimed that she had chronic pain in her foot and swelling and that she couldn’t wear any type of heel or tight shoe. She contended that her neck and back still bothered her and that the teeth surrounding the fractured tooth had become painful. She claimed that she still had psychological issues, including depression, and that her social life had been impaired by the psychological trauma and chronic pain.

At the time of the accident, Hernandez was working as a lab technician and enrolled in an internship program to become an ultrasound sonographer. She had to drop out of the internship program as a result of her injuries, and she missed three months of work. It took her an additional year to become an ultrasound sonographer, which paid approximately twice as much as being a lab technician.

Plaintiff’s medical experts and economic rehabilitative expert testified that the nature of Hernandez’s injuries shortened her work-life expectancy. The economist testified that if Hernandez’s work-life expectancy was shortened by a year and a half then her damages were $245,000. If her work-life expectancy was shortened by seven years, then her damages were $1.1 million.

Plaintiff’s counsel asked the jury for damages for past and future pain and suffering, future medical expenses, past lost wages and loss of future earnings potential as a result of a diminution of Hernandez’s future earning capacity.

Defense counsel argued that Hernandez did not sustain the foot fractures. Defense counsel argued that X-rays taken right after the accident at the emergency room and six weeks after the accident were both negative for fractures.

Insurer:

Zurich North America for both defendants

ALM Properties, Inc.

Bronx Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 28, Issue 1

2010 WL 2277741 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Twelfth Judicial District, Bronx County, New York.

Radhames Rodriguez v. VL Olympus Bagels and Nelson Akyuwen

No. 305030/08

DATE OF VERDICT/SETTLEMENT: April 21, 2010

TOPIC: MOTOR VEHICLE - NO-FAULT CASE - MOTOR VEHICLE - RED LIGHT - MOTOR VEHICLE - BROADSIDE - MOTOR VEHICLE - INTERSECTION - MOTOR VEHICLE - MULTIPLE VEHICLE

Car Crash Caused Back, Neck Injuries, Plaintiff Claimed

SUMMARY:

RESULT: Verdict-Plaintiff

Award Total: $60,000

The jury found that Rodriguez’s damages totaled $60,000.

EXPERT WITNESSES:

Plaintiff: Stephen Huish, M.D.; Physical Medicine; Bronx, NY

Defendant: Alan Greenfield, M.D.; Radiology; Forest Hills, NY Isaac Cohen, M.D.; Orthopedics; Rockville Centre, NY Michael J. Carciente, M.D.; Neurology; Brooklyn, NY

ATTORNEYS:

Plaintiff: Richard E. Noll; Bloom & Noll LLP, Mineola, NY, trial counsel to Law Office of Melvin Maiman; Mineola, NY (Radhames Rodriguez)

Defendant: Joann Taylor; Law Office of Mary Audi Bjork; Tarrytown, NY (Nelson Akyuwen, VL Olympus Bagels)

JUDGE: Yvonne Gonzalez

RANGE AMOUNT: $50,000-99,999

STATE: New York

COUNTY: Bronx

INJURIES: Rodriguez claimed that he sustained at disc herniation at L5-S1 with pressure on his left L5 nerve root. He also claimed that he developed disc bulges at L1-2 through L4-5 and C3-4 through C5-6. Rodriguez was taken to the emergency room, where he was released after 30 minutes. He missed approximately three days of work and started treating with a doctor a few days after the accident.

Facts:

On Jan. 23, 2008, plaintiff Radhames Rodriguez, 40, a parking lot’s attendant, was driving on West 48th Street, near its intersection at 10th Avenue, in Manhattan. As he proceeded through the intersection, his vehicle was struck by a truck that was traveling on 10th Avenue. Rodriguez claimed that he sustained injuries of his back and neck. The truck’s driver fled the scene, but he was subsequently located and identified.

Rodriguez sued the truck’s driver, Nelson Akyuwen, and the truck’s owner, VL Olympus Bagels. Rodriguez alleged that Akyuwen was negligent in the operation of his vehicle. Rodriguez further alleged that VL Olympus Bagels was vicariously liable for Akyuwen’s actions.

Rodriguez claimed that Akyuwen ignored a red traffic signal.

Defense counsel conceded liability. The matter proceeded to a summary jury trial that addressed damages.

MRIs were taken approximately six weeks after the accident, which showed disc herniations and bulges. An EMG taken about three months after the accident showed radiculopathy.

Rodriguez underwent physical therapy about twice a week for four months. He also underwent chiropractic treatment for approximately four months. Rodriguez claimed that he would need future physical therapy and medical examinations. He claimed that he still had neck and back pain.

Rodriguez testified that he returned to work because he had to financially support his family, despite the continued pain from his injuries.

Plaintiff’s counsel introduced photographs of the damage done to the front end of Rodriguez’s car.

Plaintiff’s counsel was seeking damages for past and future pain and suffering and future medical expenses.

Defense counsel argued that Rodriguez wasn’t disabled and went back to work after only missing three days of work. Defense counsel argued that Rodriguez had recovered as he stopped treatment after four months so he did not need future medical treatment. Finally, defense counsel argued that Rodriguez’s claimed injuries related to a prior car accident that occurred more than 10 years earlier where he also sustained neck and back injuries.

Insurer:

Allstate Insurance Co. for both defendantsRadhames Rodriguez

ALM Properties, Inc.

Bronx Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 28, Issue 1

2010 WL 2277726 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Ninth Judicial District, Orange County, New York.

Lannette Sanabria v. Anthony Paduch

No. 2088/08

DATE OF VERDICT/SETTLEMENT: April 16, 2010

TOPIC: MOTOR VEHICLE - REVERSING VEHICLE - MOTOR VEHICLE - MULTIPLE VEHICLE - CIVIL PRACTICE - SUMMARY JUDGMENT - DAMAGES - PAIN AND SUFFERING - DAMAGES - MEDICAL EXPENSES

Plaintiff Claimed Car Crash Caused Neck, Knee and Ankle Injuries

SUMMARY:

RESULT: Verdict-Defendant

Award Total: $0

The jury rendered a defense verdict following the retrial. It found that Sanabria did not sustained a permanent consequential limitation of use of a body organ or member, and that Sanabria did not sustain a significant limitation of use of a body function or system as a result of the accident on Dec. 2, 2007. The jury also found that Sanabria did not sustain a medically determined, nonpermanent injury or impairment that prevented her performance of substantially all of the material acts that would have constituted the usual and customary daily activities of at least 90 of the 180 days that followed the accident.

EXPERT WITNESSES:

Plaintiff: Vincent Gulfo, M.D.; Physical Medicine; Warwick, NY

Defendant: A. Robert Tantleff, M.D.; Radiology; Roslyn, NY Robert C. Hendler, M.D.; Orthopedic Surgery; Goshen, NY

ATTORNEYS:

Plaintiff: Edward C. Bruno; Pine Bush, NY, trial counsel to Richard A. Bernsley; Pine Bush, NY (Lannette Sanabria)

Defendant: Amy L. Schaefer; Law Office of Mary A. Bjork; Middletown, NY (Anthony Paduch)

JUDGE: Robert A. Onofry

RANGE AMOUNT: 0

STATE: New York

COUNTY: Orange

INJURIES: The matter was tried in June 2009, but after two full days of deliberation and several notes from the jury, the jury advised the court that they could not reach a verdict on the third question, the 90/180 question. The court subsequently entered a mistrial on June 30, 2009.

Facts:

On Dec. 2, 2007, plaintiff Lannette Sanabria, 36, a billing analyst at Drug World, was driving a four-door sedan on Goshen Turnpike in Wallkill when a Subaru truck began to back out of a driveway. A collision resulted when the front wheel well of her car was struck by the rear corner bumper of the truck driven by Anthony Paduch. Sanabria claimed that she injured her neck, left knee and left ankle in the accident.

Sanabria sued Paduch. She alleged that Paduch was negligent in the operation of his vehicle for failing to keep a proper lookout and for backing into a roadway when it was unsafe to do so.

Plaintiff’s counsel moved for summary judgment on the issue of liability, and it was granted. The matter subsequently proceeded to a trial on damages only.

Defense counsel made a post-trial motion to open the verdict and have the first two questions, regarding permanent consequential limitation and significant injury, read into the record, but it was denied.

During the retrial of damages, Sanabria claimed that she first presented to her treating physician three days after the accident with complaints of pain to her neck, left knee and left ankle. She alleged that she sustained disc herniations at C4-5 and C5-6, and a medial meniscus tear of the left knee as a result of the accident. She also claimed that she sustained a tear of the talo-fibular ligament and partial tear of the lateral ligament of the left ankle. Sanabria ultimately underwent a partial medial meniscectomy on Feb. 20, 2008, and surgery on her left ankle in April 2008. She also underwent a course of physical therapy beginning on Jan. 4, 2008, to treat her cervical condition.

Sanabria claimed that suffers from continued pain in her neck, left knee and left ankle, but that the majority of the pain is to her neck. She alleged that she also suffers from a loss of range of motion to her cervical spine and that as a result, she can no longer perform some of the activities that she once enjoyed, such as dancing. She also claimed that she is unable to stand for long periods of time, was unable to help her daughter move into college and was unable to lift heavy prescription boxes at her job. Sanabria contended that she was unable to return to work from Dec. 3, 2007 through Dec. 10, 2007, and from Jan. 4, 2008 through February 2009. Sanabria alleged that she attempted to return to her job after February 2009, but that she was ultimately laid off. She further contended that she will need additional treatment in the future to address her injuries.

Thus, Sanabria sought recovery for her past and future pain and suffering.

Defense counsel argued that Sanabria did not sustain a serious injury, as defined by the no-fault law, Insurance Law § 5102(d).

The defendant’s expert board-certified radiologist testified that a review of an MRI taken of the plaintiff’s left knee showed no meniscal tear whatsoever and no evidence of any acute injuries. He also testified that an MRI of the plaintiff’s left ankle showed no ligament tears, no abnormalities and no evidence of an acute injury whatsoever. The defendant’s expert radiologist further opined that that the MRI of the plaintiff’s cervical spine did not show any disc herniations.

The defendant’s expert board-certified orthopedic surgeon testified that after a review of the plaintiff’s medical records and a physical examination, he opined that Sanabria did not sustain a permanent injury or a significant loss of use as a result of the December 2007 accident. He opined that Sanabria might have sustained a neck strain and a possible contusion to the knee, but that she was back normal activities within four to six weeks. The defendant’s orthopedic surgery expert further opined that based on his findings, surgery was not necessary in Sanabria’s case.

Defense counsel contended that Sanabria did not seek medical attention immediately after the accident and waited three days before seeing a physician. She also asserted that upon seeing the plaintiff’s treating expert physiatrist on Dec. 5, 2007, the physician prescribed a course of physical therapy to Sanabria, but that she did not go. Defense counsel contended that Sanabria did not actually start physical therapy until it was prescribed again by her doctor on Jan. 4, 2008. However, physical therapy treatment had to be interrupted a couple of times as a result of the scheduled surgical procedures. In addition, defense counsel presented the plaintiff’s physical therapy records from St. Anthony Community Hospital in Warwick dated Jan. 4, 2008, what stated that on that day, Sanabria appeared at the hospital for physical therapy wearing 4-inch heels and walking with a completely normal gait. Thus, defense counsel argued that Sanabria did not suffer any permanent disability. In addition, when she cross-examined the plaintiff’s expert about why he kept Sanabria out of work, he claimed that it was because of Sanabria’s neck injury, but acknowledged that concern over the plaintiff lifting heavy objects at work were not an issue because Sanabria had a desk job.

Insurer:

Allstate Insurance Co. for Anthony Paduch

ALM Properties, Inc.

Orange Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 28, Issue 1

2010 WL 1953601 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Twelfth Judicial District, Bronx County, New York.

Erasmo Santos and Milagros Santos v. National Retail Transportation Inc. and William Donaldson

No. 7327/07

DATE OF VERDICT/SETTLEMENT: April 16, 2010

TOPIC: MOTOR VEHICLE - LANE CHANGE - MOTOR VEHICLE - REAR-ENDER - MOTOR VEHICLE - MULTIPLE IMPACT - MOTOR VEHICLE - MULTIPLE VEHICLE

Car Crash’s Parties Each Blamed Other’s Lane Change

SUMMARY:

RESULT: Verdict-Plaintiff

Award Total: $120,000

The jury found that Donaldson was negligent, but Santos was assigned 30-percent comparative negligence. It also found that Santos does not suffer permanent consequential limitation of use of a body organ or member and that he did not suffer significant limitation of use of a body function or system, but it concluded that he sustained a serious injury. It determined that the plaintiffs’ damages totaled $120,000. The comparative-negligence reduction produced a net recovery of $84,000.

EXPERT WITNESSES:

ATTORNEYS:

Plaintiff: Harvey G. Lockhart; trial counsel to Yankowitz Law Firm, P.C.; Great Neck, NY (Erasmo Santos, Milagros Santos)

Defendant: Mario A. Batelli; Foster & Mazzie, LLC; Totowa, NJ (National Retail Transportation Inc., William Donaldson)

JUDGE: Geoffrey D. Wright

RANGE AMOUNT: $100,000-199,999

STATE: New York

COUNTY: Bronx

INJURIES: Santos was placed in an ambulance, and he was transported to a hospital. He underwent minor treatment.

Facts:

On Sept. 2, 2004, plaintiff Erasmo Santos, 50, a groundskeeper, was driving on the eastbound side of the Cross Bronx Expressway, near its interchange at Webster Avenue, in the Tremont section of the Bronx. Soon after he had passed the interchange, his vehicle’s rear end was struck by a trailing truck that was being driven by William Donaldson. Santos’ vehicle spun about 90 degrees, and the truck broadsided it and pushed it across a distance of some 100 feet. Santos claimed that he sustained an injury of a shoulder.

Santos sued Donaldson and his truck’s owner, National Retail Transportation Inc. Santos alleged that Donaldson was negligent in the operation of his vehicle. Santos further alleged that National Retail Transportation was vicariously liable for Donaldson’s actions.

Santos claimed that he initially occupied the expressway’s right eastbound lane and that Donaldson was maintaining a trailing position in the center eastbound lane. He contended that Donaldson veered into the right lane and initiated the collision.

Donaldson contended that he had been maintaining a position in the right lane. He claimed that Santos suddenly veered into the right lane and entered the truck’s direct path. Donaldson contended that he could not have avoided the collision.

Santos ultimately claimed that he sustained a tear of his left, nondominant shoulder’s labrum. He also claimed that he developed impingement of the same shoulder’s subacromial region. He contended that he could not work during the few weeks that followed the accident.

On Dec. 21, 2006, Santos underwent arthroscopic surgery. The procedure was followed by physical therapy, and Santos claimed that he could not work during the four weeks that followed the surgery. He has resumed a full workload, but he contended that he cannot lift heavy objects. He also contended that he suffers residual pain and that he cannot engage in some recreational activities, such as playing with his grandchildren.

Santos sought recovery of damages for his past and future pain and suffering. His wife sought recovery of damages for her loss of consortium.

Defense counsel contended that MRI scans suggested that Mr. Santos’ injuries stemmed from degenerative conditions that preceded the accident. Thus, he argued that Santos did not sustain a serious injury, as defined by the no-fault law, Insurance Law § 5102(d).

ALM Properties, Inc.

Bronx Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 27, Issue 46

2010 WL 1648473 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Twelfth Judicial District, Bronx County, New York.

Portia A. Hinton v. City of New York the Department of Parks & Recreation of the City of New York, New York Yankees, New York Yankees Partnership & “John Doe”

No. 14126/07

DATE OF VERDICT/SETTLEMENT: April 09, 2010

TOPIC: PREMISES LIABILITY - DANGEROUS CONDITION - SLIPS, TRIPS & FALLS - FALL FROM HEIGHT - GOVERNMENT - MUNICIPALITIES

Plaintiff Fell Off of Loading Dock, Claimed Railing Was Necessary

SUMMARY:

RESULT: Verdict-Plaintiff

Award Total: $1,593,000

The jury found that the defendants were liable for Hinton’s fall. It determined that Hinton’s damages totaled $1,593,000.

EXPERT WITNESSES:

Plaintiff: Nicholas Bellizzi, P.E.; Engineering; Holmdel, NJ William Clarke; Occupational Medicine; Bronx, NY

Defendant: Jeffrey Ketchman, Ph.D., P.E.; Engineering; Westport, CT Martin J. Barschi, M.D.; Orthopedic Surgery; White Plains, NY

ATTORNEYS:

Plaintiff: Jeffrey A. Guzman; Krentsel & Guzman; New York, NY (Portia A. Hinton)

Defendant: Lawrence S. Wasserman; Gordon & Silber, P.C.; New York, NY (New York City, Department of Parks and Recreation of the City of New York, New York Yankees, New York Yankees Partnership)

JUDGE: Kenneth L. Thompson

RANGE AMOUNT: $1,000,000-1,999,999

STATE: New York

COUNTY: Bronx

INJURIES: Hinton sustained two hairline fractures of her pelvis. She was transported to a hospital, where she underwent about two weeks of palliative care. She subsequently underwent some six weeks of inpatient treatment at a rehabilitation center. Her fractures healed within three to six months of the accident.

Facts:

On Aug. 14, 2006, plaintiff Portia Hinton, 48, a lunchroom’s attendant and a concessionaire, operated a pushcart in a concourse of Yankee Stadium, in the Bronx. While she was crossing a loading dock, she stepped aside to allow another worker to pass. Hinton and the cart fell off of the loading dock, and the cart fell onto Hinton. She sustained injuries of her pelvis.

Hinton sued the stadium’s owner, the city of New York; one of the city’s agencies, the New York City Department of Parks & Recreation; and the stadium’s operators, the New York Yankees and the New York Yankees Partnership.

The New York City Department of Parks & Recreation was ultimately released from the suit. The matter proceeded to a trial against the remaining defendants.

Hinton noted that the loading dock was guarded by rails on two sides but not on the side from which she fell. Hinton’s expert engineer noted that the loading dock abutted a pedestrian pathway, and he opined that the pathway’s proximity necessitated the presence of a removable fence, gate or guardrail that could be deployed when a truck did not occupy the loading bay. He contended that the absence of such protection constituted a departure from good, accepted engineering standards. He also contended that the unprotected platform violated a municipal code.

The defense’s expert engineer contended that the New York City Building Code does not include any requirement for a fence or rail on the loading side of a loading dock. He noted that New York state guidelines must be followed when the New York City Building Code is silent on an issue, and he contended that the state’s guidelines include a specific exemption for railings on the loading side of a loading dock.

Defense counsel moved for summary judgment, but the motion was denied. The motion is pending before the appellate division.

Hinton claimed that she suffers residual pain that stems from her back and her right hip. She undergoes weekly physical therapy. Hinton’s treating therapist opined that Hinton suffers residual myofascial pain syndrome. Hinton contended that she cannot endure prolonged periods in which she is standing or walking, that she cannot lift objects that weigh more than 20 pounds, and that she has had to stop all work other than her lunchroom attendant’s job. She claimed that she previously worked two or three jobs simultaneously. She contended that she will continue to require palliative care such as anti-inflammatory medication, pain-management treatment and physical therapy.

Hinton sought recovery of her past and future medical expenses, her past lost earnings, and damages for her past and future pain and suffering.

The defense’s expert orthopedic surgeon opined that Hinton has fully recovered.

ALM Properties, Inc.

Bronx Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 27, Issue 43

2010 WL 1747551 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Second Judicial District, Kings County, New York.

Frank Campanella v. Jeffrey J. Basti

No. 32640/07

DATE OF VERDICT/SETTLEMENT: April 08, 2010

TOPIC: PREMISES LIABILITY - DANGEROUS CONDITION

Deliveryman Claimed Blocked Entrance Led to Injury

SUMMARY:

RESULT: Verdict-Defendant

Award Total: $0

The jury rendered a defense verdict.

EXPERT WITNESSES:

ATTORNEYS:

Plaintiff: Steven H. Beldock; Birbrower & Beldock, P.C.; New City, NY (Frank Campanella, Frank Campanella)

Defendant: Charles J. Marchello; Richard T. Lau & Associates; Jericho, NY (Jeffrey J. Basti)

JUDGE: Debra Silber

RANGE AMOUNT: 0

STATE: New York

COUNTY: Kings

INJURIES: The trial was bifurcated. Damages were not before the court.

Facts:

On Sept. 28, 2006, plaintiff Frank Campanella, 48, a deliveryman, drove to a Brooklyn medical office owned by Jeffrey Basti. Campanella had previously made deliveries to the building, but e had always used a rear-entrance ramp, which was obstructed by a truck on this day. Campanella was told that the vehicle could not be moved, and he was asked to bring the tank up a side staircase. While walking the hand truck backward up the staircase, Campanella struck his left elbow on the staircase molding. He claimed that he sustained injuries.

Campanella sued Basti. Campanella alleged that Basti failed to provide a safe entrance to the premises, thus creating a dangerous condition.

The defense asserted that since the stairs were not in disrepair to any degree there was no dangerous condition. This led to the defense counsel to argue that Campanella’s accident and resulting injuries were his own fault and that Basti was not liable.

Campanella suffered a rupture of the triceps tendon with moderate to severe ulnarcranon bursitis, and would develop elbow entrapment syndrome of his ulnar nerve. He underwent neruolysis of the ulnar nerve and was diagnosed with avulsed bony fragments, which occurs when a fragment of bone tears away from the main mass of bone, at the torn edge of the triceps tendon. Campanella’s injuries were all to his left arm, his nondominant side.

Campanella would also develop tendonosis involving the common extensor tendon and degeneration and fraying involving the lateral ulnar collateral ligament.

Campanella also experienced small joint effusion of his left elbow, mild ulnar neuritis and carpel tunnel syndrome of his left wrist.

Campanella underwent two operations for his injuries to repair the triceps tendon.

Campanella contended that his injuries left his with nerve damage, a 30-percent loss of use of his left arm and elbow, and a 40-percent loss of use of his left arm due to nerve damage and carpal tunnel syndrome.

Campanella claimed that he was unable to participate in weight lifting following the incident and had missed eight months of work. He had approximately $80,000 in workers’ compensation liens.

Campanella sought recovery of damages for his past and future pain and suffering.

Insurer:

State Farm Fire and Casualty Co.

ALM Properties, Inc.

Kings Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 27, Issue 45

2010 WL 1747553 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Second Judicial District, Kings County, New York.

Susan L. Kwok v. MB Fuel Transport, Inc

No. 19632/07

DATE OF VERDICT/SETTLEMENT: April 08, 2010

TOPIC: PREMISES LIABILITY - TRIP AND FALL - SLIPS, TRIPS & FALLS - SIDEWALK

Oil Delivery Hose a Tripping Hazard, Plaintiff Alleged

SUMMARY:

RESULT: Verdict-Defendant

Award Total: $0

The jury rendered a defense verdict.

EXPERT WITNESSES:

ATTORNEYS:

Plaintiff: John K. Avanzino; John Avanzino, P.C.; Brooklyn, NY (Susan L. Kwok, M.D.)

Defendant: Gregory Lewis; The Law Offices of Edward Garfinkel; Brooklyn, NY (MB Fuel Transport Inc.)

JUDGE: Jack M. Battaglia

RANGE AMOUNT: 0

STATE: New York

COUNTY: Kings

INJURIES: Kwok was taken to St. Vincent’s Hospital, where she was diagnosed with a fracture to her right orbital bone. She underwent open reduction and internal fixation of the fracture and had regular follow-up treatments with examinations to ensure proper healing.

Facts:

On Feb. 5, 2007, plaintiff Susan Kwok, M.D., 44, a doctor, was exiting her workplace in Manhattan when she tripped on an oil hose being used by MB Fuel Transport to make a delivery at the location. Kwok claimed that she sustained an injury of her face.

Kwok sued MB Fuel Transport, alleging that it had been negligent in conducting delivery operations by failing to place cones or provide sufficient warnings of the presence of the oil hose.

Kwok claimed that while exiting the glass doors of her workplace, she did not visually observe the truck or observe the hose. A co-worker who had assisted Kwok after her fall testified that he did not notice the hose and had almost tripped over the hose himself. The co-worker also testified that there were no cones placed near the hose.

The security guard on duty at the building also testified for Kwok as he responded to the incident and had gotten information from the delivery driver. The security guard corroborated Kwok’s account that cones had not been placed around the hose, which he observed while obtaining information from the delivery driver. The security guard also testified that he could see there were no cones near the oil hose from inside the building.

Defense counsel questioned the relationship between Kwok and her co-worker, who had not been in contact with Kwok for 2.5 years between the accident and the trial. Kwok had admitted that they had spoken recently about her brother and denied speaking about the trial or testimony. Defense counsel also questioned why Kwok’s counsel had gone to certain lengths to show that Kwok and the co-worker witness were not in collusion.

Defense counsel countered that their conversation was too “coincidental” because it occurred two days before their testimony after not speaking for more than two years.

Defense counsel also attempted to impeach Kwok’s credibility by showing prior inconsistent deposition testimony. Kwok denied ever seeing the oil truck in front of her workplace at trial, which was in contrast to her deposition, at which she testified that she saw an oil truck at least two times in front of the building before the accident.

The defense made the point that the delivery driver had to make another delivery in the same area shortly after the accident and that by the time the security guard responded, the cones and hose may have been moved.

Defense counsel also noted that from where the oil truck had been parked, it would have been impossible to observe the rear of the truck, the oil hose, or any cones from inside the building as the security guard had claimed.

The driver for MB Fuel testified that he had placed cones in the area around the hose before the accident had occurred.

Kwok contended that she was left with some slight scarring around her right eye and that since the accident, she has had continuous double vision from time to time. As a result, she claimed she was unable to read for long periods of time or treat as many patients as she would.

After the injury Kwok missed approximately two to three months of work and incurred about $10,000 in lost wages.

Kwok sought recovery of damages for her past and future pain and suffering and past lost wages.

Insurer:

Chartis Inc.

ALM Properties, Inc.

Kings Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 27, Issue 45

2010 WL 1747561 (N.Y.Sup.) (Verdict and Settlement Summary)

Copyright (c) 2010 ALM Media Properties, LLC. All Rights Reserved

Supreme Court, Second Judicial District, Kings County, New York.

Dorothy Brannum v. Senad Galijasevic and JB Hunt Transport, Inc.

No. 4429/08

DATE OF VERDICT/SETTLEMENT: April 06, 2010

TOPIC: MOTOR VEHICLE - MULTIPLE VEHICLE

Motorist Swiped Parked Tractor-trailer, Defense Contended

SUMMARY:

RESULT: Verdict-Defendant

Award Total: $0

The jury rendered a defense verdict.

EXPERT WITNESSES:

ATTORNEYS:

Plaintiff: Ernest Reece; Krentsel & Guzman LLP; New York, NY (Dorothy Brannum)

Defendant: Robert A. Fitch; Rawle & Henderson, LLP; New York, NY (JB Hunt Transport Inc., Senad Galijasevic); Jared Cooper; Rawle & Henderson, LLP; New York, NY (JB Hunt Transport Inc., Senad Galijasevic)

JUDGE: Loren Baily-Schiffman

RANGE AMOUNT: 0

STATE: New York

COUNTY: Kings

INJURIES: The trial was bifurcated. Damages were not before the court.

Facts:

On Oct. 2, 2007, plaintiff Dorothy Brannum, who was retired and in her 60s, was in an accident with a tractor-trailer driven by Senad Galijasevic near the intersection of Rockaway Boulevard and Newport Street, in Brooklyn. She sustained an injury to her knee.

Brannum sued Galijasevic and JB Hunt Transport, which owned the tractor-trailer and employed Galijasevic. She alleged that Galijasevic was negligent in the operation of his vehicle and that JB Hunt was vicariously liable.

Plaintiff’s counsel argued that Galijasevic was double parked and that, as Brannum attempted to go around the tractor-trailer, Galijasevic moved the vehicle and struck her car.

Defense counsel argued that Galijasevic was parked and did not move the tractor-trailer. Defense counsel argued that Brannum struck the tractor-trailer. Defense counsel contended that photographs taken by Galijasevic showed the damage to the back of the tractor-trailer was more of a sideswipe, which supported Galijasevic’s version of the accident.

The responding police officer testified that Brannum gave inconsistent statements about how the accident occurred. The police officer and another eyewitness testified that the truck was parked when the accident occurred.

Brannum claimed that she suffered general neck and back pain. She also claimed to have sustained a torn meniscus in her left knee. She left the scene of the accident and went to the hospital later that day. MRI scans taken approximately six months after the accident showed degenerative conditions in her back and neck. She underwent arthroscopic surgery for the meniscus tear approximately six months after the accident. After her surgery, Brannum underwent physical therapy two to three times a week for three months.

Brannum claimed to have continued neck and back pain and problems with her knee. She also claimed that she may need a future knee replacement. She claimed that she could no longer do her normal daily activities. She sought recovery of damages for her past and future pain and suffering.

ALM Properties, Inc.

Kings Supreme

PUBLISHED IN: VerdictSearch New York Reporter Vol. 27, Issue 45