Articles Posted in Nassau

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On April 1, 1987, a New York City Department of Sanitation employee was injured at work. That day, he was working with another employee of the New York City Department of Sanitation who was assigned to drive the truck. The injured employee was loading bags of garbage into the truck when the tailgate of the truck popped open and struck him in the groin area. As a result of the accident the Nassau employee suffered serious and permanent physical injuries. The injured employee alleges that the cause of the accident that day was that the other employee had failed to ensure that the tailgate pins locking the tailgate were free from obstruction and fully engaged.

A safety report that was issued following the incident states, “. . .it was apparent that 1 1/2 [inches] of debris by the left pin, and 1 1/4 [inches] of debris by the right pin. This debris, it appears, held the tailgate away from the body of the truck making it unable for the pins to rise to the proper level. The pins being unable to rise to the proper position enabled the tailgate to force open under pressure of cycling when the truck became loaded.” It was exposed that the pins were not checked that date at the beginning of the driver’s shift or when the vehicle was dumped prior to the truck accident. Failure to clear the debris out of the tailgate was a violation of department regulation teletype #86-3431.

Department regulation # 86-3431 states that the operator of a garbage truck in the city is not to rely on the electronic indicators in the cab area of the truck to determine if the tailgate is properly secured. He must get out and visually check the pins to make sure that they are not blocked by debris. The Suffolk safety inspector found debris in both of the pins and it was this debris that kept the pins from locking and permitted the tailgate to open. The supervisor that date stated that the driver was at fault and that he would be duly disciplined. The driver was not disciplined.

The court found that on the date of the accident it was the driver’s responsibility to check the pins. The driver stated that he did examine them. There are unresolved factual matters as to how the accident occurred and what the proximate cause of the accident was. Any summary judgments would be inappropriate in such a case. It was referred for trial.
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On January 24, 1976 at around eight o’clock in the evening, an abandoned vehicle that was parked on the side of the roadway caught fire. The New York Fire Department responded to the scene, but the fire truck driver parked the truck in front of the vehicle that was on fire. Four other fire fighters began to battle the blaze. The fire captain on scene was holding a lantern and waving it to direct traffic. There were no police officers on the scene. The Nassau captain on scene noticed that a car was coming down the road and picking up speed. He attempted to get the driver’s attention so that he would not hit the four fire fighters who were working on the burning car. The vehicle did not slow up and proceeded to hit all of the firefighter killing one and seriously injuring the others. The injured firefighters filed a lawsuit alleging among other things that the driver was negligent, but that the City was also at fault for the accident because of the following: they failed to remove the abandoned car which caught fire based on the municipality’s responsibility to maintain its roadways in reasonable and safe condition for reasonable and foreseeable use.

The City failed to set up fire lines, the City was responsible for the actions of the fire truck driver when he placed the fire truck in front of the vehicle rather than using it to properly protect the safety of him and the other firefighters. The Suffolk Court left it to the jury to decide if the decisions of the Captain and the fire truck driver were questions of professional judgment or not. If it is determined that the decisions were those of professional judgment, then the City cannot be held liable. The jury was also instructed that under General Municipal Law § 205-a that a firefighter has an “independent statutory cause of action to recover damages for injuries or wrongful death caused ‘directly or indirectly as a result of any neglect. . .in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town, or city governments or of any and all their departments, divisions, and bureaus.'” This law applies to this situation because it is clear that the city failed to comply with several vehicular and traffic laws in failing to remove the abandoned vehicle in a timely manner.

The jury found unanimously that the city was negligent in failing to remove “the abandoned vehicle, failing to establish fire lines, and failing to park the fire truck properly, and that each of these acts of negligence was a proximate cause of the accident. It also determined that the (fire truck driver and the captain) as well as (the vehicle driver) were guilty of negligence which was a proximate cause of the truck accident.'” They also decided that the city was liable on the statutory cause of action.

The Supreme Court found that the causes of action against the city “should have been dismissed as a matter of law, prior to their submission to the jury.” In support of this decision, they cite that there was no evidence that under common law negligence that the abandoned vehicle was a danger to pedestrians or to vehicular traffic. The car had not been left in the middle of the street or on the sidewalk, but was safely off to one side of the roadway. It was clear that the city had notice of the abandoned vehicle and failed to remove it, but it “is well established that ‘public entities remain immune from negligence claims arising out of the performance of their governmental functions . . . unless the injured person establishes a special relationship with the entity, which would create a specific duty to protect that individual, and the individual relied on the performance of that duty.'” (Miller v. State of New York, 62 N.Y.2d 506, 510, 478 N.Y.S.2d 829, 467 N.E.2d 493; O’Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33; Schrempf v. State of New York, 66 N.Y.2d 289, 496 N.Y.S.2d 973, 487 N.E.2d 883). Because the removal of the abandoned car was a government function, there was no special relationship with the city and the city cannot be held liable in a common-law negligence suit for not removing the car. This same argument is true for the actions of the fire truck driver and the captain.

The fire truck driver and the captain both testified that the reason for parking the fire truck in front of the burning car was that it made it easier to get the hoses off of the back of the truck onto the car fire. If they had parked on the side, or behind the car, the hoses would have had to be pulled around the fire truck. This was an “error of judgment on the part of the Fire Department officers in their conduct of the fire-fighting activities.” Because of this law, the city cannot be held liable for these actions under a common law negligence suit.

Additionally, as far as the regulations of the fire department § 11.5.21 (a) which provides that “Initial fire lines shall be established by the officer in command at a point beyond the furthest apparatus, whether operating or parked”. The court determined that the captain was not in violation of this regulation and therefore, this “theory of liability should not have been submitted to the jury.” 507 N.Y.S.2d 193,120 A.D.2d 24.

Thus, the Justices ordered that the sole liability for this accident rests on the driver of the car. The original case has been set aside as it respects everything concerning liability belonging to the City of New York or either the fire truck driver or the captain. A new trial is granted to the driver of the motor vehicle solely on the issue of damages.
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On June 3, 2004 on Jamaica Avenue near the intersection with Route 112 in the Town of Brookhaven, Suffolk County, New York, a man was involved in a three car truck accident that resulted in serious personal injury to a driver of a black Hyundai. The incidents surrounding the accident are that a gas station was under construction on the corner. The construction manager of the gas station operated a white van that was illegally parked in front of the no stopping or parking sign on the side of the roadway. A dump truck also working on the gas station was dropping off a dumpster at that location and was blocking part of the roadway. The driver of the dump truck stated that he put out cones and set his lights to emergency flash to let oncoming traffic know that there was a hazard. The first vehicle in the accident completed a left hand turn onto the roadway and was blocked by the dump truck. She stopped in traffic to wait for the dump truck to move. The second vehicle did not see her stop and struck her vehicle, which knocked her into a third vehicle and ultimately it was knocked in to the vehicle of the victim on the opposite side of the roadway. The victim filed a lawsuit against the construction manager for causing the truck accident. The construction manager alleges that he was not responsible for any vehicle other than his white van and that the dump truck was not his or in any way under his control. He states that liability should be attached to the dump truck company and not to him.

The Nassau Court hearing this matter states that there are serious issues of fact that need to be determined. Whenever such issues of fact exist, it is incumbent upon the Court to ensure that a jury hears the arguments. Any motions for summary judgment must be denied as a matter of course in such circumstances because the Court cannot determine which issues of fact are credible and which ones are not credible. Because material facts of this accident are in dispute or different inferences may reasonably be drawn as the facts of this case, the Supreme Court must deny the motion for summary judgment as requested by the construction manager and his company. Only a trial can resolve issues of fact that are presented.
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A 20-year old Nassau teacher applied to the Long Island State Park Commission for a summer job. He worked as a laborer for the Commission at a warehouse in Jones Beach. One July day, the teacher was thrown off from a truckowned by the Commission after the axle of the truck broke. For the remainder of July and during the month of August that year, he did not work. For a six-week period, he was paid by the Workmen’s Compensation Board, which paid for his hospital bill and the bill of his doctor. The teacher returned to his regular employment at a high school on Labor Day.

The teacher filed a suit to recover damages for the personal injuries he sustained as a result of the Truck accident. The teacher also asserted negligence claims against the State of New York and the beach authority.

The teacher testified that during the period of slightly less than three weeks that he worked, he had ridden on the running board, in the back of and inside the power vehicles that were used for transportation. On occasion, he had seen three people riding in the cab. He testified further that, because of the size of his two co-workers, there was no room for him in the cab on the day of the accident, because if he had entered the cab the driver would have been unable to shift gears.

The State and the Authority moved for a dismissal of the claim on several grounds, including that the teacher was not able to show that the State and the Authority were negligent and to prove his own freedom from contributory negligence and that the Workmen’s Compensation is his sole and exclusive remedy since the teacher was a special employee of the Authority at the time of the accident and is bound by his choice of having accepted Workmen’s Compensation from his general employer.

An employee may have both a general and special employer. In this case, the teacher elected to proceed against the Suffolk Commission under the Workmen’s Compensation Law. He may not now bring an action at law against the Authority.

The court also pointed out that the teacher did not offer any evidence to show what caused the axle to break, or whether the State and the Authority knew of the condition of the axle or were aware that any unreasonable risk was involved. In his brief, however, the teacher states that he never claimed any negligence in the operation of the truck, but rather that he predicated his claim upon the fact that he was ordered by his superior to ride upon the running board of the truck and thus was not provided safe transportation.
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The Workmen’s Compensation Board has made an award to the Nassau widow of an employee who suffered a fatal coronary attack, which the Board found was causally related to injuries he sustained in an auto accident during the course of his employment.

According to records in court, the worker was operating his employer’s truck when it was struck by a United States mail truck. The impact caused him to be thrown to the pavement and he was unconscious for several minutes. He was taken to a hospital. The worker continued to do his regular work until his death several days later. According to a Suffolk doctor who was called at the worker’s residence, the worker was acutely ill and was suffering from severe chest pains. After the doctor administered morphine to the worker, he was rushed to the hospital where he died few hours after. The death certificate shows the cause of death to be coronary occlusion and coronary thrombosis.

At the hearing, two doctors presented conflicting testimony regarding the cause of the worker’s death. One doctor, testifying for the employer, said the worker’s heart and other contents of his chest cavity were shaken up by the truck accident but that the condition of the heart, arteries and thrombus was formed more than two weeks before the fatal attack. The doctor who testified for the widow said the force of the blow sustained by the worker when he was thrown from his truck may have produced heart injury.

The court found it impossible to reject as insufficient in law the testimony of the doctor presented by the widow because, according to the court, it was not empty speculation, nor was it a mere general medical lecture. The court pointed out that the hypothetical question posed to the doctor contained all of the salient facts of the case, and his opinion was directed to those facts. The record emphatically establishes that in forming his opinion, he considered both the autopsy and microscopic findings.

There are in this case two conflicting expert opinions each one based upon the same facts. The selection of either is an exercise of fact-finding power which is entirely within the province of the Board and outside the limited jurisdiction of the court. The court said it is not its function to render a decision upon the basis of which expert opinion it deems is more weighty or persuasive. The testimony of each expert was sufficiently direct and specific to create an issue of fact and to warrant a finding either for or against causal relation. That issue has been resolved by the appropriate body the Board in favor of the widow, and the court said the record leaves it no course but to affirm.
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The records of the case relate that a Nassau landscape gardener who owned a tractor trailer ring was electrocuted when loading boom on the tractor trailer, which he was driving, stuck high tension wires owned by an electric company and located on the property of a certain resident. The administrator of the estate of the landscape gardener sued the electric company and the landowner for personal injuries and wrongful death.

The complaint is premised on the Suffolk electric company’s liability upon faulty maintenance and safety control of the high tension wires. The parties have stipulated that the wires were maintained by the electric company and that the conduct of the tractor trailer truck was not for the electric company’s use or benefit. The electric company was not a lessee or borrower of the tractor trailer. Significantly, it was agreed that the power for the tractor trailer came from that unit itself, and it was not connected to the electric company’s equipment for any power source.

Both contenders rely on the policy language, which provides that the insured includes the named insured, any partner or executive officer of the named insured, any other person while using an Owned automobile or a Hired automobile with the permission of the Named insured, and any other person or organization but only with respect to his or its liability because of acts or omissions of an insured.

The electric company believes it is an ‘organization’ with potential liability to the landscape gardner’s estate ‘because of his acts or omissions in handling the truck.

In this case, the court found that the pertinent claimed faulty acts by the electric company, negligent maintenance and control of the high tension wires, are remote and unrelated to the named insured’s loading operation, except in temporal occurrence alone. The electric company, the court ruled, is in no way part of the loading process of the tractor trailer. That both claimed acts of negligence, by the electric company and by the insurance company, may have coincided in time happenstance does not establish the critical functional nexus to use and loading of the truck so as to bring the electric company’s possible contributive causation within those activities covered by the insurance policy.

The electric company contends that any organization is insured with respect to its liability occasioned because of acts or omissions of an insured. The court believes that the words “because of” imply a relationship connecting the culpable acts of persons using the vehicle to liability of another, who then becomes an “insured.” The phrase appears to include persons or organizations held in by way of vicarious liability for derelictions of the landscape gardener’s employer, its employees, or a consensual user of the vehicle.
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On October 24, 2009 at approximately 4:15 a.m. a Nissan was north bound on the Seaford Oyster Bay Expressway when the driver, the son of the owner, saw a license plate in the roadway and attempted to avoid hitting it. The Nissan swerved, lost control and then struck a concrete divider wall. The operator of the vehicle stated that following the one car accident, he collected the license plate and called a tow truck to come remove his vehicle.

Following the accident, the Suffolk operator of the Nissan discovered that the license plate had come from a vehicle that had been involved in an accident on the opposite side of the expressway six days earlier. He filed a lawsuit claiming that the tow truck company that had removed the driver’s vehicle from the first accident had not removed the debris from the roadway properly according to Traffic Law § 1219 (c ).

Vehicle and Traffic Law § 1219 (c ) states that “[a]ny person removing a wrecked or damaged vehicle from a highway shall remove any glass or other injurious substance dropped upon the highway from such vehicle”. Several precedent cases were discussed with varying degrees of applications to the accident in question. Ultimately the question at hand deals with the liability of the tow truck driver or the owner of the vehicle from the previous accident to be responsible for any debris that was left in the roadway that could and did cause an additional accident.
The Supreme Court in this case was approached the night before trial with a request for summary judgment in the case of the owner of the vehicle that was involved in the first accident. It was decided that since she had no knowledge or responsibility to the removal of the vehicle which was done by the tow service that her request for summary judgment was appropriate and was approved.

The second request for Summary Judgment came from the tow service because they state that they were hired and directed by the City and that they responded accordingly. They were dispatched to the one side of the expressway where they collected a vehicle and cleared all debris. They were unaware of any debris that had gone over the median wall onto the other side of the expressway and did not intentionally leave any debris behind.

The Nassau Court agreed and so ordered for summary judgment on the side of the towing service that no liability be assigned to them in this case.
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This case is fairly straightforward. It involves a truck accident which happened in the afternoon of October 1958. A panel truck was parked at the curb between an X-ray mobile truck parked in front of it and an unoccupied car parked behind it.

As the Nassau driver of the panel truck maneuvered to drive away from the curb, he first backed the truck for a distance of several feet. The right rear bumper of the truck accidentally caught onto the left front bumper of the car behind it so that as the driver drove the truck forward, the car was pulled along and propelled into the rear of the X-ray mobile truck in which the complainant was waiting to be X-rayed.

The Suffolk complainant requests the court for a summary judgment against the owners of the truck and its driver (who however died before the summons and complaint could be served to him). They also request for immediate assessment of damages by a jury. The owners of the truck, the defendants, moves that the plaintiffs be prevented from presenting a bill of particulars to the jury since they failed to provide this before initiating the demand.

Given the facts of the case, the complainant is clearly entitled to recover. The defendants opposed the motion for summary judgment but they did not present any proof and questions of doubt with respect to the truck accident which would require a trial. Additionally, the defendants do not deny the allegations that at the moment of the truck accident the panel truck was being operated by the driver as a matter of their business and also with their knowledge and consent. Moreover, as a response to the complainants allegations regarding the details of how the truck accident happened, the defendants merely denied any knowledge.
Considering these responses made by the defendant in the light of the facts, the court determines that there is no sufficient reason to deny the motion for instant judgment. In fact, the defendant’s allegations in their opposing affidavit, concerning information which it allegedly received regarding the accident, includes a statement allegedly made by the driver to the investigator employed by the defendant’s attorney. This gives the lie to the defendant’s claim of lack of knowledge as to the circumstances of the truck accident. In view of this, it must be presumed that defendant had plenty of chances to find out the facts relative to the truck accident.

Notwithstanding the opportunity which the defendant had to inform themselves of the facts, the information about the accident which was brought to their attention as referred to in their affidavit, does not bring up any material dispute as to the circumstances of the truck accident. Assuming, as claimed by the defendant that the car parked behind their truck was illegally parked, and even though there was no contact between the truck in question and the X-ray mobile where the complainant was, these facts do not serve to relieve the defendant of their liability since the operation of the truck was the immediate cause of the truck accident.
With regard to the motion by defendants for preclusion of the bill of particulars, the court believes that the bill of particulars would affect the determination of the motion for summary judgment. However, the defendant is entitled to the particulars with regard to the injuries allegedly suffered by the complainant and the related damages. The court grants the motion to preclude unless the complainants provide the defendants with a bill of particulars within ten days after a copy of the court order is given to the defendant. Otherwise, the motion to preclude is denied.
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On September 30, 2011, a woman submitted a charge against Nassau County for negligence in conducting its sanding/salting operations. She alleged that the operations were done in an unsafe manner, therefore causing the truck accident that injured her.

According to reports, County truck number 3124 was removing snow and salting the streets in Hempstead, New York. The woman said that she was standing between two parked cars in the street when suddenly, the truck threw a “metal projectile” that hit her left hand and forehad. During the hearing, both parties referred to the “metal projectile” as a reinforcement bar.

Because of the injuries she sustained, the woman charged Nassau County with negligence. The County then submitted a motion to the Court for a summary judgment to dismiss the woman’s complaint. To support this, the County brought forth as a witness the Equipment Supervisor and Acting Highway Maintenance Supervisor of the Hempstead Garage. The Supervisor had been an Equipment Operator before and had sanded, salted, and plowed the town roads. He said that although clogs sometimes occur in the opening to the funnel where the salt leaves the vehicle, the clogs are just frozen chunks of salt. He also said that there was never a time when a driver had reported a clog in the funnel from that wasn’t frozen salt. After seeing the piece of metal that hit the woman and injured her, he said that it looked like a reinforcement bar used in construction. However, it did not resemble any of the truck parts and he had no idea where it came from.

During the hearing, the Suffolk woman mentioned that there were other cars traveling down the road and on the other side of the street. She said that she was shielding her eyes from the sand when she saw the truck pass by. Because her eyes were closed when the truck accident happened, she only saw the piece of metal after. She did not see it come from the truck.

When a motion for summary judgment is submitted, the Court determines whether or not there is an important factual issue that should be resolved. The party submitting the motion is required to show that it has a right to summary judgment. In this case, the County was able to show this by demonstrating that the truck was not malfunctioning and therefore could not have thrown off the metal reinforcement bar that hit the woman.

The Court also finds that the woman’s arguments are weak. She said that the truck had a history of mechanical issues and that the County was negligent because it did not screen the salt before using it. However, she could not prove that the bar was seen in the salt before the accident, or that screening the salt before using it was required. Also, although part of the truck had been repaired a few weeks before the incident, there was no evidence that something was wrong with it.

The Law states that the liability for the owners or operators of “hazard vehicles” which do highway work only apply in situations where they recklessly ignored the safety of others. In this case, the County was able to prove that it did not operate the vehicle in a reckless way and without considering the safety of others.

When there are no factual issues to be resolved, and where the party which moves for a summary judgment shows that it has a right to receive that judgment, the Court will grant it. Therefore, the Court granted a summary judgment in favor of Nassau County.
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A personal injury action was filed stemming from an accident in Nassau, in which a 30-year old man, during his employ as a groundskeeper with a school district, severed a portion of his left ring finger when the tailgate portion of a dump body installed on a 1996 Ford F-350 dump truck dropped on his finger.

The groundskeeper related that in the spring of 2003, he noticed that the tailgate of truck 23 began to swing back and forth and he could hear it banging as he drove the truck. He said the tailgate was popping off while he was driving, and the bottom part of the tailgate used to come out of the section that was clamped to hold it together. He also testified that, from the spring of 2004 until the day of his truck accident in April 2005, the tailgate fell off the truck on a daily basis and that he complained to school personnel about said situation, but nothing was done to remedy the alleged problem.

One of the third-party defendants wanted the claims of strict products liability dismissed because the facts show that the tailgate at issue was damaged prior to the groundskeeper’s accident and was subsequently profoundly modified and altered as a result of that damage thereby resulting in his injuries. That defendant also said that there was no evidence establishing a manufacturing or design defect in the tailgate.

Further, that Queens defendant pointed out that the groundskeeper worked with the truck on a daily basis from 1996 until his accident in 2005 and that he worked on the truck and with its tailgate for seven or eight years before he first complained about the tailgate.

In this case, the court found that the third-party defendant failed to submit proof establishing that the groundskeeper’s injuries were not caused by a manufacturing defect in the tailgate of the truck. The court said the defendant could have shown this by submitting direct evidence of tests, mechanical processes and inspections, instead of relying solely on the testimony of a person.

The Court pointed out that there was conflicting evidence presented regarding when the repairs as a result of the commercial truck accident were performed. The testimonies of various witnesses presented in court did not point out whether or not the additional accident occurred before or after the groundskeeper’s accident.

As the third-party defendant relied heavily in its argument that it is clear that it cannot be liable for injuries stemming from the performance of a tailgate that, in the wake of the tailgate accident and subsequent repairs, was so profoundly modified and altered before the accident as to simply cease.

Based on the evidence presented and the testimonies of witnesses, the court directed the third-party defendant to pay for the injuries sustained by the groundskeeper.
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