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Michael A. Hawkins is the plaintiff in this case. The defendants of the case are Edward F. and Margaret Miracco, Ashley N. Lawrence, Noreen T. Ebbighausen, Jan Czaplicki, and Terry Gallagher, Inc. The case is being heard in the Supreme Court of the State of New York in Nassau County. Judge Karen V. Murphy is overseeing the case.

The motion before the court is made by the defendants Edward F. and Margaret Miracco and requests a summary judgment to dismiss the complaints and any cross complaints made against them by the plaintiff Michael A. Hawkins.

The plaintiff, Michael A. Hawkins has filed a cross motion for summary judgment in the case in his favor. The defendants Terry Gallagher and Jan Czaplicki have filed cross motions as well for granting summary judgment in their favor.

Case Background
This case arises from an accident that occurred in Melville, New York on Spagnoli Road. The accident occurred on the 11th of December around 9:20 in the morning. The accident involved a car that is owned by the defendant Noreen T. Ebbighausen and was operated by the defendant Ashley N. Lawrence and a dump truck that is owned by Terry Gallagher Inc. and was driven by Jan Czaplicki. The car driven by Lawrence came in contact with the dump truck. This caused the truck to swerve off the road and into a driveway. There was a vehicle at a complete stop in the driveway at the time. This vehicle was driven by Edward Miracco. The plaintiff, Michael Hawkins was a passenger in the car and was asleep when the truck accident occurred.

The defendant Edward Miracco testifies that he was at a full stop in the driveway of his place of employment when the dump truck veered off the road and into the driveway, hitting his car. This was confirmed by the defendant Jan Czaplicki.

Case Discussion and Decision
The plaintiff, the Gallagher defendants, and the Miracco defendants all seek summary judgment in their favor through their instant applications.

A summary judgment is a drastic remedy for a case and is only applicable if the proponent can establish that there are no triable issues of fact in the case.

The plaintiff argues that the evidence of skid marks, shown in pictures from the accident warrants that the Miracco defendant’s summary judgment motion should be denied. The plaintiff alleges that it would be possible for a jury to conclude that Miracco had started to enter the road and then stopped suddenly as shown by the skid marks. The jury may also conclude that the vehicle driven by Czaplicki swerved into the lane of Lawrence because of the sudden skid made by Miracco. However, the plaintiff does not offer any evidence to support that the skid marks shown in the photograph were made by the Miracco car. For this reason, the court grants summary judgment in favor of Miracco and the complaint is dismissed.

The motion for summary judgment made by the Gallagher defendants is denied. The argument made by the defendants is erroneous in the fact that they state a rear end collision establishes prima facie in the case of liability. There is no evidence to show that this is a rear end collision matter. The version of the accident given by the defendants is remarkably different.

The cross motion of the plaintiff for summary judgment on the basis of liability is granted.
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This case involves the plaintiffs John and Meredith Walters versus the defendants the City of New York, Mohamed A. Khamis, and Marcelin Papilon and the plaintiffs Michael F. and Veronica Schunk versus the City of New York, Mohamed A. Khamis, and Marcelin Papilon and the plaintiff Mohamed Khamis versus the defendant the City of New York Fire Department. The case is being heard in the Supreme Court of the State of New York located in New York County. Judge Matthey F. Cooper is overseeing the case.

This case involves three personal injury actions, Walters, Schunk, against the City of New York and Khamis versus the City of New York Fire Department. The defendant, the City of New York has motioned for a summary judgment in all of the cases.

Case Background
The accident involved a collision of a taxicab with a New York City Fire Department Rescue Truck. The taxi slammed into the back of a fire truckand pinned the firefighters John Walters and Michael Schunk between the car and the truck, crushing their legs. Mohammed A. Khamis was driving the cab and claims injury as well.

The accident occurred on the 19th of July when the plaintiffs Schunk and Walters along with four other firefighters were working their shift from 6 pm to 9am on Rescue 1. Rescue 1 was returning to the fire station after response in an emergency call. At approximately 11:40 pm, the truck stopped on Columbus Avenue for dinner.

There was no space to park the Rescue 1 vehicle without blocking a cross walk so the driver of the vehicle double parked the truck on the eastern most travel lane on Columbus Avenue. The men left the vehicle and went to the restaurant to order their dinner. As they were still on duty and may receive an emergency call at any time, one of the men was required to stay with the truck.

Walters and Schunk returned to the Rescue 1 vehicle after purchasing their dinner. They waited at the back of the truck for the others to return. It was during this time that a taxi driven by Khamis hit the vehicle in the rear.

Khamis states that he was cut off by a vehicle and forced to swerve into the eastern most lane. As soon as he swerved into the lane he hit the Rescue 1 vehicle and pinned the two firefighters.

Case Discussion and Decision
The City claims that the two firefighters were not acting as part of their duty when the accident occurred. However, the officers were on duty at the time and were simply obtaining dinner.

This can be seen as part of their duties as there is no dinner break provided to the firefighters during their shift. While the two were not instructed to stand behind the truck, they were on duty and ready to respond should an emergency arise.

After reviewing all of the information provided by the plaintiffs and the arguments provided by the defendant the City of New York, it is found that there is triable evidence in this case. For this reason, the summary judgment motions made by the defendant are denied in all three cases.
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This case is being heard in the First Department of the Supreme Court, the Appellate Division. The defendant and appellant in the case is the City of New York. The plaintiff and respondent in the case is Frank A. Durso. The case is being heard before Carro J.P., Fein, Bloom, Silverman, and Kassal JJ.

Case Background
On the sixth of September, in 1975, Frank Durso was driving his car when he stopped at a red light. As he was stopped he was hit in the rear by a New York City Sanitation Department vehicle. The impact of the truck pushed the Frank’s vehicle 10 to 20 feet into the intersection and caused so much damage that the vehicle was totaled.

At the scene of the accident Frank refused immediate medical attention. He instead went to his doctor’s office which was located nearby. He complained of excruciating pain. His doctor prescribed aspirin and bed rest. By the following Monday, the 12th of September, the pain was still bad so Frank went to Dr. Gallo, an orthopedist who had treated him for a back sprain that occurred in 1970.

Frank complained of pain that rant from his spine down to his buttocks. Dr. Gallo ran several tests and they showed a back condition that was not present in the past when these same tests were conducted. Frank was diagnosed with a herniated disc. After receiving care from Dr. Gallo, Frank returned to work within 7 weeks of the accident. He was placed on light duty at work and Frank needed assistance regularly. The pain continued and Dr. Gallo indicated that he might need surgery.

Frank continued to see the doctor and saw a bit of improvement in 1976. In 1977 the pain increased and was worse than it ever had been. By September of 1977 he could barely lift his leg. An incident described as critical occurred in 1978.

The incident involved Frank and around ten fellow employees and occurred on the 23rd of January, 1978. They were pushing a mail truck when Frank sustained another injury to his back. He was bedridden until March and then admitted to the hospital. He was put in traction for three weeks. The plaintiff was in serious pain and surgery was required.

The question in this case is whether the herniated disc was caused by the accident or from his pre-existing condition.

Case Discussion and Decision
The City is appealing the award of $700,000 to the plaintiff and $300,000 to the wife of the plaintiff on the basis that the amount is excessive.

We agree that this amount is excessive after reviewing the facts of the case. While the accident may have caused the herniated disc, the plaintiff refused initial medical treatment after the accident. Additionally, he continued to work for the next two years. He volunteered to push the mail cart on the night the fourth accident causing injury to his back occurred. This could be deemed as negligence.

For these reasons the court is reversing the previous judgment and setting aside the verdict. A new trial will be conducted on the basis of damages only.
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The plaintiffs in the case are the executors of the estate of Otto Mermelstein, who is deceased. The two executors are Adrianne Gibilisco and Steven Mermelstein. The defendants of the case are Jagat Aniroodh, National Retail Systems, Inc., and Keystone Freight Corporation. The case is being heard in the Supreme Court located in New York County. Judge Paul Wooten is overseeing the case.

The case involves a wrongful death suit that was brought about by the plaintiffs Gibilisco and Mermelstein on behalf of the estate of Otto Mermelstein. The defendants have moved for an order to grant summary judgment in the matter of liability. The plaintiffs are opposing this motion and contend that the motion papers are misleading and in error. The plaintiffs state that the defendant Jagat violated vehicle and traffic laws as well as the New York City traffic regulations and rules and that Jagat should be found negligent in the matter.

Case Facts
Defendant Jagat works as a driver for Keystone, which is a company that delivers merchandise to retailers. On the 22nd of September in 2005, Jagat was driving a truck that was owned by the defendant National and had a trailer that was 40 feet long. He was on his way to Bloomingdales at the time of the accident.

Jagat testified that he was not sure if there were any blind spots in the truck as it was dark outside and streetlights were illuminating the area. He states that before the accident he was driving in the second lane from the left located on Third Avenue and going about five or six mph. He says that he was stopped at a red light located on 59th Street behind two vehicles just before the accident happened. When the light turned green he states that he went about fifteen feet at about two or three miles an hour before he struck Mermelstein who was riding a bike. He states that his view of the intersection was clear and that he did not see Mermelstein before he hit him. Jagat states that he heard a loud sound on the right side of his truck. He got out of his truck to see what it was and he saw Mermelstein under the front right side of the truck.

At the scene of the accident no tickets were issued to Jagat. Mermelstein was taken to a hospital and died shortly after. Jagat turned himself into the police station and was given a ticket for driving with a suspended license.

Discussion and Decision

The defendants state that they are entitled to summary judgment because the plaintiffs have not established prima facie to prove negligence. It is also undisputed that Jagat has a green light in his favor and was driving slowly at the time the collision occurred.

The plaintiffs offer the testimony of Allison Santora and Alexander Violette who witnessed the accident as proof that Jagat was negligent in the accident. However, the testimony from the witnesses as well as from emergency responders raise question concerning the circumstances of the accident. These questions that arise in this case make it impossible to rule in favor of a summary judgment. The motion for summary judgment by the defendant is denied.
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The respondents and plaintiffs in this case are Marcy Drucker and Leonard Hoffman, who are co-partners as the administrator of the estate of Samuel Hoffman. The defendant and appellant of the case is Knight of Rest Products Corporation. The case is being heard in the First Department of the Supreme Court, the Appellate Division.

The case involves a person injury negligence action and was heard by a jury. The jury returned with a verdict for the defendant, but through a motion of the court the verdict was set aside as contrary based on the credible evidence available in the case. The defendant is appealing this motion and states that the plaintiff did not prove prima facie in the case and the verdict should not have been set aside as the jury was not needed to draw the inference of negligence. The defendant states that the order to set aside the verdict and granting a new trial should be reversed and the verdict entered in favor of the defendant.

Case History
On the first of August in 1950 two trucks, one that was driven by the plaintiff and the other was owned by the defendant were involved in a head on collision. The day of the accident was rainy and the road was slippery. The plaintiff was thrown from his vehicle and sustained injuries as a result of the impact.

The defendant disputed both the liability in the matter and the extent of the injuries that were allegedly sustained by the plaintiff.

The defendant did not call their driver as a witness in the trial and offered no testimony to question their liability. The only evidence as to what caused the accident came from witnesses.

The plaintiff testifies that he was driving and the truck of the defendant came from the extreme left lane and then was right in front of his truck. He remembers flying out of the vehicle and that is it.

John Babick, was driving a car right behind the truck of the plaintiff and states that the truck of the defendant sideswiped the plaintiff’s truck and then hit the truck head on. He said the plaintiff was flung from the truck and was lying on the road and bleeding.

The defendant offered testimony from a physician in the case as well. The physician stated that the plaintiff sustained a facial bone fracture and negated the complaints of back injuries and neurological complaints. This was the only proof given in the case by the defendants.

Case Discussion and Decision
There was evidence that the road conditions at the time of the accident were unfavorable. However, there was no proof in the case as to what caused the driver of the defendant’s truck to swerve into the other lane. The only information given about the accident was provided by the witness Babick. When considering this it is apparent that the plaintiff did not establish prima facie in the case.

After reviewing all of the facts of the case the court has approved the appeal made by the defendant. The order that set aside the verdict and granted a new trial is to be reversed. The verdict in favor of the defendant is granted.
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The project manager for the construction site testified that it was either his job or the job of the supervisor/foreman to tell delivery trucks where to put their loads. He testified that he was notified that a delivery was going to be made to the site that morning and that in turn called the supervisor. He stated that he told the supervisor to only put two or three pallets on the second floor and no more than that. He stated that the supervisor said that he would comply. After the accident, the project manager testified that the supervisor came to him and apologized. The project manager stated that the supervisor had confessed to him to having more than three pallets put on the second floor because “he wanted to make his job easier, so he would not have to go down to the ground floor.” The project manager also testified that he had told them that even with only the three pallets on the second floor that they would need to be spread out to the side walls after they were placed on the second floor. He stated that he learned later that the laborers had been unable to keep up with the speed of the delivery truck in placing the pallets.

The injured laborer filed his lawsuit citing breaches of Labor Law §§240 (1) and 241 (6) requesting a summary motion to show negligence against the two companies that were in charge of the construction site and its safety. Under Labor Law §240 employers are required to provide safety devices to prevent falls for workers who are working at elevations. In this case, the company failed to provide any type of safety device and so they are liable under this law for the employee’s injury. The law states, “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” In this case, the company failed to abide by these restrictions and the employee was injured. The court finds them liable under this section.

Labor Law § 241 (6) states, “All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places.” Clearly, this was not the case in this situation. The supervisor, knowing the danger to the employees if the load was placed on the unfinished floor continued to command the delivery driver to overload the floor until it collapsed injuring the victim.

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On March 12, 2002 a building was under construction at 195 St James Place in Brooklyn, New York. A cement bricklayer was working laying cement blocks on the second floor of the building. The second floor was partially constructed with metal beams and decking, but the front wall was still open. A crane type of machine that is used to place pallets of materials on the upper floors of the building was brought in to place several fully loaded, very heavy pallets on the second floor.

Almost as soon as the pallets were placed, the cement brick layer went over to them to get a bag of cement. As he approached the pallets, the floor gave way under the weight of the pallets. The cement brick layer and the heavy materials that were on the pallets, plummeted 15 feet to the lower floor causing the victim to sustain severe injuries. The victim filed a lawsuit against the company who delivered the materials that collapsed the floor and against the company that the construction supervisor worked for.

The driver of the crane type truck that delivered the heavy materials to the site testified at trial. He stated that when he arrived at the site and saw the condition of the building, he prepared to unload the truck on to the sidewalk. He was approached by a supervisor of the construction site who told him that he would need to lift the pallets up to the second floor. He testified that he informed the supervisor that the pallets weighed much too much to be loaded directly on to the second floor. He advised the supervisor that he thought the weight would cause the floor of the building to collapse.

The supervisor told him to place the materials on the second floor. He told him that as soon as he placed a pallet, the workmen would go to the pallet and unload it which would distribute the weight evenly about the site and the floor would hold. The driver of the delivery truck told him that he did not like that idea. The supervisor was persistent. The driver placed one pallet of sand far back on the second floor. The supervisor told him that since the building did not shake that it proved that it would be safe to place more weight on the floor.

The delivery truck driver placed two more pallets on the second floor. The supervisor again told him that it would be safe because the weight would quickly be evenly distributed. When he got to the last few pallets that were loaded with heavy concrete blocks, the delivery truck driver was very concerned about the weight load on the unfinished second floor of the building. He unloaded the first of the concrete block pallets onto the side walk. The supervisor went over to the truck and started to yell at him about not putting it on the second floor. Again the driver warned the supervisor about the danger of putting the heavy pallets on the unfinished second floor. Again the supervisor vehemently admonished him to unload the pallets to the second floor. Since he was worried that the customer would complain if he did not deliver the pallets where the customer wanted them delivered, he went ahead and put all of the remaining pallets on to the second floor. He testified that it was only about four minutes after he put the seventh pallet on the second floor that it collapsed.

To Be Cont…
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On May 13, 2005 a iron worker subcontractor for the construction manager of the New York Times Building located at 8th Avenue and 40th Street in Manhattan, was unloading two steel beams from a delivery truck. They were conducting an operation called, “shaking out the steel” in which each beam is lifted by a crane and rotated so that it is in the proper placement to be lifted up to the building where it will be placed. Each of the beams is about forty feet long, fourteen inches high, and thirty six inches wide. They weigh between 4 and 41 tons each. The first beam was lifted and placed down on the truck bed without issue. The second beam was going to need to be adjusted by the employee to rotate it into the proper position. The employee mounted the truck and was attempting to rotate the beam when the crane unexpectedly dropped the beam down onto the truck. The worker was knocked off of the truck and onto the ground. The first beam rolled off of the truck and landed on the employee while he lay prone on the ground. The commercial truck accident crushed the employees’ legs and caused one of his legs to be amputated. The second beam did not fall from the truck because it was still attached to the crane.

The injured worker filed a lawsuit against the building construction company under Labor Law §240. He stated that it applied because the object fell that was being lifted. The building construction company argued that Labor Law §240 did not apply in this case because at best when the pipe was hoisted by the crane, it did not go above the employees waist as he stood on the truck. The court disagreed. They felt that this is not simply the case of something falling off the back of a flatbed truck. The proximate cause of the accident was that the crane operator dropped the second beam which struck the first beam and knocked it off of the truck.

The employee also sought judgment under Labor Law §200 common-law negligence where it is the duty of an owner or general contractor to provide construction site workers with a reasonably safe place to work. However, the court ruled that since the company did not supervise the work or have direct knowledge of the hazard, that Labor Law §200 cannot apply.
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On or around the years of 1997 or 1998, a woman was driving her car on State Route 53 at the intersection with State Route 17 when she was involved in an accident. She stated that as she approached the intersection with the intent to make a left turn, she stopped her car and looked to ensure that she could conduct the turn in safety. She stated that she observed a commercial truck, but that it was so far away and moving so slowly as not to be a hazard in her maneuver. However, as she was nearly through her turn, she was struck in the rear quarter panel by a motorcycle that she had been unable to see.

The motorcycle driver stated that he had been driving behind the slow moving truck and decided to pass it. He moved out from behind the truck into the right lane and was attempting to pass the vehicle when the woman’s car pulled out in front of him. In the original trial of the case, the court found that he was 70% at fault in the accident and that the woman who was turning left was 30% at fault in the accident.

He sustained severe injury to his left hand which required him to have surgery and to wear a cast for about one month. However, he had previously injured that hand in a chain saw accident and had limited use of the hand prior to the accident in question. The original trial awarded him only $5000.00 for past pain and suffering. The Supreme Court in this case did not feel that the award was sufficient. It was also noted that the victim had sustained damage to his two front teeth that required them to be pulled and a permanent dental bridge to be placed. His face and lip were cut and his nose was broken. These injuries by themselves would have caused him the substantial pain and discomfort following the truck accident that he was claiming compensation for. The court decided that this award should be raised to $35,000.00.

The Court ruled that all of the other compensation awards were fair and applicable to the case at hand and only had issue with the one award. They ruled that they would only affirm the verdict of the original court if the amount was duly raised. If the insurance companies refused to raise the amount, the verdict would be overturned and a new trial ordered.
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On December 29, 2003 a worker arrived at a job site at 1955 Second Avenue, New York, New York to install a fence. The worker and his associates were all employees of a sub-contractor for a larger project. Their job was to install the fence. The larger project was for the New York Housing Authority. A different company was installing fuel oil tanks both below and above ground at the housing complex. Whenever a tank needed to be installed, a temporary chain link fence needed to be put up around it. One of those tanks was in the rear yard area at 1955 Second Avenue. The worker and his three co-workers parked their work truckon Second Avenue and unloaded the compressor. The compressor was very heavy, but it was on wheels.

The transport of the compressor was achieved with three men pushing the compressor while a fourth stood in front between handles like a rickshaw to pull and steer it. As they were moving the compressor down Second Avenue, one of the wheels jammed into a hole or depression in the roadway causing it to tilt to one side. The jarring motion of the compressor shoved the victim knocking him to the street. He sustained injuries in the fall. The victim filed a labor law claim because he contends that the City of New York failed to provide a safe place for him to work. His suit was filed against the New York City Housing Authority and against the companies that were in charge of the construction. Since he elected to receive worker’s compensation benefits, he was not allowed by law to file any direct lawsuit against the company that he was working directly for.

The Supreme Court ruled that since the victim was not able to show that the city had any prior knowledge of the sink hole that caused the compressor to tilt, it could not be held liable for any negligence in not having it fixed before the victim had his accident. Further, the victim’s claims against the companies that operated the construction site were dismissed. On the day of the accident, the only company employees that were at the site were the co-workers of the victim and the victim himself. There were no representatives of the charge companies on scene nor were they supervising or directing the task.
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