Articles Posted in Queens

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In 1958, a company obtained an insurance policy for a truck that was routinely operated in the course of their business. On day during the coverage of this policy, the Queens business owner’s nephew was driving the truck and caused a commercial truck accident. The insurance company stated that they did not feel that they should be responsible for the accident because the nephew was not specifically listed to drive the vehicle. There is no argument that the nephew was at fault in the accident itself.

The Manhattan company owner argues that the policy itself clearly states that it covers any person who is driving the vehicle. The issue of if the owner had given permission to his nephew to drive the truck was not addressed during the trial of the issue. The policy states that it will insure not only the company owner, but also, any “person while using the vehicle with his permission.” The court points out that “the duty to defend is broader than the duty to pay.” Goldberg v. Lumber Mutual Casualty Ins. Co., 297 N.Y. 148, 154, 77 N.E.2d 131, 133.

The court points out that the entire issue of whether or not the insurance company is liable for the compensation that was awarded to the injured parties in this case would have been moot if the insurance company had simply represented the nephew in the first place. If they had done that, then their rights as well as the nephew’s rights would have been protected. Since they did not, the injured parties are allowed by law to seek compensation from the insurance company since the nephew either was not able to pay or simply did not pay the compensation ordered by the court.

The insurance company asked if in alternative, they could receive summary judgment in their favor which must be denied. There is only one disputed issue of fact involved in this case. It is whether or not the owner of the company gave permission to the nephew to drive the truck. A presumption is made that the nephew was operating the truck with the permission of the owner. The insurance company admits that they hold the insurance policy on the truck and that the company owns the truck.

The order of the court in this case is that a summary judgment cannot be approved and the case is reserved for trial.
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On July 25, 1967, a sixteen year old girl was walking on the sidewalk near 315 Lenox Avenue, , New York City. A truck was travelling on Lenox Avenue, lost control and struck a parked car. It then jumped the curb and drove onto the sidewalk where it hit the girl causing her to be pushed under the porch of a house. This truck accidentcaused her serious injury. Her mother filed a lawsuit against the driver of the truck for loss of her daughter’s services and medical and hospital bills.

The Queens driver of the truck denied all allegations. He denied that it was his truck. He denied that he was driving the truck. He denied that he lived in New York. His allegations of complete noninvolvement were too false as to cause the court to comment on the impropriety of his denials. There is no reason to believe that he is not responsible for the accident.

When the driver of the truck commented on the truck accident, he advised that he was heading east on Lenox Avenue when his truck struck a parked vehicle, went out of control, and jumped the curb. He advised that two girls walking on the sidewalk tried to run up steps of a porch and his truck hit the girls and shoved the girls and the steps under the porch.

The court found that as a matter of law the girl and her friend were both free from any contributory negligence in the case of this accident. The court further comments that the only conclusions to be drawn from the truck driver’s own admissions was that “he did not maintain a proper lookout for vehicles parked on Lenox Avenue, did not have his pick-up truck under proper control and that after having struck the parked vehicle he fully lost control of the pick-up truck which then jumped the curb, crossed the sidewalk, and struck the steps of the porch and (the girls). As a matter of law it is determined (the truck driver) was negligent and his negligence was the proximate cause of the injury to (the girls.)(288 N.Y.S.2d761.

Therefore, the court rules that there are no triable issues of fact and that liability for this accident was clearly established as resting solely with the driver of the truck. The Court finds that the driver of the truck is liable for the accident and that the victims are entitled to recover whatever damages that a court trial may asses.
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October 29, 1954 a Manhattan husband and father of two died because of an accident while he was working for a machine company. On that day, the man was walking back toward his company truck that he had parked a few moments before. He had been talking to some of the other employees and was going back to get into his truck. A few minutes after walking away from them, the other workmen heard him fall and turned around to see the employee on the ground with his hands on his head. He was about ten feet from the rear wheel of his truck.

None of the other employees saw what happened before he fell or even how he fell. There was speculation that he had fallen off of his truck, but no one actually saw him fall. The truck had mud on the tires and wheel wells, the fallen employee had no mud on him. The employee had a fracture to his skull and had suffered a stroke before dying. The issue here is which came first. Did he have a stroke and then fall fracturing his skull or did he fall, fracture his skull and the fracture led to the stroke. The only evidence presented at trial of a fall from the truck was on the attending physician report and that doctor stated that he had been told by one of the other employees that the victim had fallen off of the truck.

The company brought forth medical records from 1952 when that particular driver had been rehired by the company. The doctors who had examined him had recommended that he not be rehired because his health was not suitable for the job. The doctor at that time had diagnosed him as overweight, with excessive hypertension, arteriosclerosis and alcoholism. This brings the concern back to the medical report from the date of the Truck accident that lists the cause of the injury as a fall from a truck. The doctor testified that he obtained that information from other employees. Each of the employees that was present on that date has testified and each one stated that they did not tell the Queens doctor that they saw him fall from the truck. In fact, they each stated that he was about ten feet from the truck when he fell and none of them saw him fall.

Based on this information, the Court believes that the employee suffered a stroke and then fell. The earlier decision and award are reversed and the claim is dismissed.
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The records of the personal injury case showed that an eight-year old child was playing cops and robbers when he was struck by a car directly in front of a building owned and operated by a telephone company. The sources said the truck of the Manhattan telephone company was standing adjacent to and west of a vehicle parked near the easterly curb of the avenue where the accident happened. Thus, within the roadway of 32 feet, at the site of the truck accident, parked parallel, were three vehicles, two near the easterly curb and one near the westerly curb.

Prior to the occurrence of the truck accident, the child ran across the avenue from the west curb to the east curb. Upon arriving at the east curb, he was directly in front of the telephone company building; he then turned to retrace his steps in a westerly direction of the avenue and was struck down by one foot west of the telephone company’s truck by an automobile proceeding northerly. The Queens operator of the northbound vehicle testified that prior to the accident he had stopped for a red light and then made a right turn into the avenue traveling north toward the scene of the accident. He said he observed the double parked truck.

The right front headlight of the northbound vehicle came in contract with the child. The operator of the northbound vehicle said he did not see the child prior to the accident. The child also testified that he did not see the moving vehicle before the accident. The mother of the infant testified that children habitually played in front of the telephone company building.

In the light of the physical and traffic conditions and the known propensity of children to play at or near the building, whether or not the telephone company’s parked truck served to obstruct the view of the infant as well as the view of the operator of the northbound vehicle and thus present a hazard within the range of reasonable apprehension was a question of fact, the court ruled.

The evidence, the court found, does not establish the height, width, shape and construction of the parked vehicles, including the telephone company’s, adjacent to the easterly curb of the avenue. The court noted, however, that the telephone company’s brief concedes that the view of the operator of the northbound vehicle was obscured. This concession supports the inference that when the infant stepped off the easterly curb of the avenue, his view of the northbound vehicle also was obscured by the two paralled parked cars in front of him. The court said it cannot, as a matter of law, state that the infant was not within the zone of danger apprehended by the regulation against double parking.
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A 30-year old woman joined the New York Police Department in 1990, and served continuously until her retirement in 2010. In 2007, the policewoman, while assigned to the NYPD’s peddler unit, was unloading confiscated property from a truckto the NYPD’s property clerk in Queens. While lifting a box of property, the policewoman stepped back on to a shovel, which caused her to fall. The policewoman twisted her right knee and was admitted to the emergency room at a nearby hospital. The NYC hospital staff diagnosed her with a sprained knee. The knee was diagnosed to be permanently disabled, which restricted her desk duty.

The policewoman applied to the Police Pension Fund for Accident Disability Retirement but this was denied by a tie vote. Her counsel asserted that the only explanation for the shovel on the floor of the truck was someone else’s negligence; and that, accordingly, there was no reason for the policewoman to expect or foresee that the shovel would be left in a “dangerous location.”

The court held that in a challenge of a denial of disability payments, the PPF’s determination will be sustained unless it is “arbitrary, capricious, an abuse of discretion or contrary to law.” The court said it cannot “weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder.”

ADR benefits are available when it is showed that the applicant is physically or mentally incapacitated from the performance of duty as a natural and proximate result of an “accidental injury” received in the line of duty, and that such disability was not the result of willful negligence on the part of the applicant. A denial of ADR due to a tie vote cannot be set aside “unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident.” On the other hand, an injury caused by a trip where tripping is a foreseeable risk of the work being performed does not entitle the applicant to ADR.

In this case, the court held that it was neither irrational nor an error of law for the PPF to deny ADR on the grounds that the policewoman’s fall was not an accident. The policewoman was unloading merchandise from a truck that, according to the record, contains boxes and other objects, like shovels. Inherent in that work, then, is the stepping over or around objects. The risk of tripping while performing this work is foreseeable; therefore, the fall cannot be considered sudden, unexpected, and out of ordinary, and it cannot be said that the policewoman is entitled to ADR as a matter of law, the court held.
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On June 19, 1965, a company truck belonging to a fleet of company vehicles was involved in a serious accident resulting in injuries and lawsuits to recover damages. However, when the Bronx owner of the fleet applied in a timely manner to their insurance company for litigation support and the benefits owed under the policy, they were informed that the particular vehicle in question was not covered under the policy.

A review of the policy showed that although the company owned five vehicles, three of the five that were listed on the policy had different engine numbers than the vehicle insurance policy. In fact, the three vehicles that were listed on the policy were not owned nor had they ever been owned by the company. The company filed a lawsuit against the Queens insurance company claiming a mutual error in the policy and demand for benefits.

The insurance company contended that since the vehicle that was in the truck accident was not listed on the policy that it would not be covered. The court maintained that there have been numerous other cases that have been examined in situation like this. It is more important that the written word of the contract reflects the verbal agreement between the parties than the other way around. Since the intent of both parties was to insure the fleet of vehicles owned by that company, the insurance company needs to make the adjustments to the policy to demonstrate that fact. That means that the vehicles that are listed on the policy, but that are not owned by the company need to be removed. It also means that the vehicles that are owned by the company and not listed on the policy need to be added. In all of the precedent cases reviewed this correction to comply with the verbal agreement between the parties was upheld.

The Supreme Court ruled that since the intent was to cover the vehicles owned by the company and that there is no doubt that this vehicle was owned by the company at the time of the accident, it should be covered. They point out that if one of the vehicles that was listed on the policy, but not owned by the company in question had been involved in an accident that their belief is that the insurance company would have failed to insure it because its agreement was with the company to insure its fleet and the vehicle was not part of the fleet.

It is so ordered by the Justices that the insurance company is held liable to represent the company as the insurer of the vehicle.
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A 35-year old Queens man was returning, one December day, by car from New England with his wife when he met an accident. According to the man’s testimony, he had a slight collision with a van in the entrance ramp of the Bruckner Expressway. The collision resulted in locked bumpers. The two drivers exited their vehicles to disengage their bumpers. The next recollection, the man said he was waking up on the ground.

The man’s wife, now deceased, testified at an examination before trial that while she was watching her husband dislodge the bumper, a tire rolled past and hit him in the back, rendering him unconscious. She stated that the tire was traveling so fast, she thought that it killed him. The wife first saw the tire when it was about five feet away from her husband, and did not see where it came from. According to records in court, the tire had an identification tag stapled just below the tread. The tag bore the name of a tire manufacturing company.

The man filed an action against the van owner and the tire manufacturing company to recover damages for the personal injuries he sustained as a result of the accident. The tire manufacturing company moved to dismiss the action complaining that the evidence presented failed to establish any negligence on its part, and failed to connect it with the offending tire. The trial court granted the motion.

On appeal, the appellate court held that the man has established a prima facie case of negligence against the tire manufacturing company under the doctrine of res ipsa loquitur, which means the things speaks for itself. The doctrine means that there must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the truck accident arose from want of care.

The appellate court found that the evidence established the three elements required for application of the doctrine of res ipsa loquitur. A fully inflated truck tire mounted on a rim rolling down an expressway at high speed is the sort of occurrence which does not usually happen unless someone has been negligent by failing to properly secure and maintain the tire, the appellate court held. Additionally, the owner of the truck where the tire came from delivered a repaired truck tire to the Long Island tire company one week before the accident. The appellate court held that it is probable that the repaired tire was the same tire that injured the man.
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On August 24, 1950 a truck was involved in an accident that resulted in a personal injury claim. An action was commenced in the Supreme Court of Kings County for review. The elements of this case are that following the accident, the Brooklyn insurance company for the truck contacted the insured person who had been driving the truck and told him that he was not going to be covered in the accident. The insurance policy had been purchased about four weeks prior to the accident and was supposed to be in effect for one year.

However, 21 months after the truck accident and an entire year after the notice of a lawsuit action had been served; the insurance company contacted the driver and informed him that at the time of the accident, his insurance had lapsed due to a suspension and that the insurance company would not be covering the accident. The date that the accident occurred was in the early part of the policy and clearly within bounds of being covered by that policy. The driver of the truck filed a lawsuit to make the company supply the insurance coverage that he had paid for.

The Supreme Court stated that after a review of the evidence in this case, there was no evidence that either the driver or anyone on behalf of the driver authorized suspension of the policy. Further, they could find no one in the insurance company who had authorized a suspension of the policy at any time and certainly not during the time span that covered the accident in question.

In fact, the court stated that the insurance company had already undertaken the defense of the driver in this truck accident. It is unclear why they waited until 21 months after the accident before disclaiming. Since the company still retained the entire premium money which was paid for insurance by the Queens driver, which included the truck that was in the accident. All of these facts support the finding that there was never a suspension in coverage of the truck that was involved in this accident.

The Supreme Court orders that the insurance policy was not suspended and that the policy was in effect. The insurance company is hereby ordered to defend the driver in the action resulting from the personal injury accident in Kings County.

Issues of law are constantly changing. A person who is not specifically trained in the law cannot begin to know what all of their rights are without the assistance of a professional. Here at Steven Bilkis and Associates, we provide Truck Accident Attorneys, Injury Lawyers, Big Rig Jackknife Injury Attorneys, and 18 Wheeler Crash Injury lawyers. Commercial Truck Accident Lawyers will stand by you and ensure that your rights are protected. Wrongful Death Attorneys can argue your side and make sure that you and your loved ones are considered. We make sure that you are rightfully awarded compensation for your suffering.
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On February 19, 2005 a commercial truck accident occurred near the intersection of First Avenue and 78th Street. A pedestrian was attempting to cross the street on 78th Street. A commercial truck was attempting a left turn from 78th Street onto First Avenue heading north. The Queens pedestrian was struck by the rear left wheel of the commercial truck while he was inside the confines of the crosswalk. While this would seem to be a straightforward account of an accident, there are still questions to be answered. Depending on the way you evaluate an incident, the fault can lie with either party.

The victim states that the truck driver is responsible for the accident and his injuries because he was lawfully crossing the street inside the crosswalk when the commercial truck accident occurred. The commercial company that owns the truck claims that the pedestrian was intoxicated and that the truck never hit him. They claim that he walked into the back wheels of the truck while he was intoxicated.

The question is considered as to whether a pedestrian or a motorist has the right of way at an intersection and code 34 RCNY § 4-04(b)(1) clearly states that “the operator of a vehicle shall yield the right of way to a pedestrian crossing a roadway within a crosswalk when the pedestrian is in the path of the vehicle or is approaching so closely thereto as to be in danger.” Also Vehicle and Traffic Law §115(a) provides “when traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk on the roadway upon which the vehicle is traveling. . .” Several expert witnesses were offered who stated that had the driver been using due caution and looking in his mirrors for pedestrians, the accident would not have occurred. They stated that they believed that the truck driver should have been able to stop the truck which would have prevented injury to the pedestrian.

The commercial truck owners presented a doctor who worked at the emergency room where the victim had been taken following the commercial truck accident. He stated that in his professional opinion, the victim had been intoxicated when he examined him in the emergency room. However, since there was no blood alcohol test administered, it is only the doctor’s personal observations that led him to believe the state of the victim was intoxicated. There is no medical proof that the victim was intoxicated at the time of the accident or to what degree, if he had been drinking that he was impaired. Especially, since another witness who stated that he had seen the victim just minutes before the commercial truck accident and that he had not observed any visual signs that the pedestrian was drunk. In court, one witness does not necessarily count out another witness that says the opposite. Each witness must be evaluated based on the veracity of their testimony.

There was discussion brought up at the trial that alleged that a piece of the back of the commercial truck was sticking out and that it is that faulty part that struck the pedestrian. Since each commercial vehicle company maintains a Vehicle Condition Report for each vehicle the victim requested a copy of the Vehicle Condition Report for the truck that hit him. Also contained in this report would be the condition of the vehicle as a whole, to include the brakes, horns, mirror, etc. Each commercial truck is also required to have a CADEC electronic recording device for this company. This device consists of an electronic recording cartridge and a recorder. The electronic cartridge records information from the vehicle such as the speed which is recorded at given intervals set by the company. The victim’s requests for this information have been ignored repeatedly. Rather, the company provided him with sample reports that did not relate to the specific vehicle involved in the accident. Some of the witnesses also alleged that the truck was travelling at an excessive speed at the time of the commercial truck accident. The records from the CADEC and the Vehicle Condition Report would then become even more important to the outcome of this trial. However, the company maintains that due to a technical glitch, the CADEC electronic cartridge from the vehicle in question did not record any information on the date of the accident. The driver stated that he handed his Vehicle Condition Report in to his supervisor at the end of his shift, but the company claims that they cannot locate the Vehicle Condition Report for that vehicle for the date of the accident. The victim presents the supposition that the company has intentionally spoliated evidence by misplacing the Vehicle Condition Report and failing to preserve the CADEC electronic report.

Under New York law, “spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them.” Kirkland v New York City Housing Authority, 666 NYS2d 609 [1 Dept 1997]

The company submitted copies of depositions that stated that it is not unusual for the company to lose Vehicle Condition Reports. They also stated that their CADEC electronic devices have a 25% failure rate. Since there is no evidence to imply that the company intentionally disposed of the evidence from these sources, the court advised that the company must provide to the victim the maintenance records concerning the vehicle that was involved in the accident.

The court decided that the Long Island company’s motion requesting a summary judgment on the issue of liability is denied and that the victim’s motion to strike the company’s answer for spoliation of evidence is also denied except that the company is required to produce a copy of the maintenance records on the vehicle that was involved in the accident.
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On August 26, 2005, a passenger car and an 18 wheeler crashed at the intersection of Queens Boulevard and Van Dam Street in Queens, New York. The driver of the car advised that she was on Van Dam Street and was making a left turn onto Queens Boulevard, which has three westbound lanes. An 18 wheel commercial truck was in the lane to her right. The driver of the car stated that when traffic began to pull forward, the commercial truck began to merge in front of her vehicle. She said that she stopped and remained stopped in traffic while the truck struck the front passenger side of her vehicle and proceeded to pull of her bumper. The front seat passenger advised that the passenger car that she was in was at a complete stop in the left most lane when the last wheel of the commercial vehicle struck the right front bumper and crushed the passenger side of the vehicle inward trapping her inside the car.

The driver of the commercial tractor trailer stated that he was making a left turn onto Queens Boulevard from Van Dam Street in the right lane and was moving into the center lane, which was reserved for trucks only. The driver stated that before merging, he looked in his mirrors and did not see anything in the center lane where he was merging. The driver of the truck stated that he was about halfway into his turn when he felt the vehicle make contact with another vehicle. He later testified that he did not see the passenger car prior to the accident, but did see the passenger car hit his tire. The Westchester truck driver stated that when the contact occurred, both vehicles were moving and that the passenger car was moving faster than his truck. After the accident, the truck driver stated that the driver got out of the passenger side of the moving car and approached the front window of his truck. The driver of the passenger car has asked the court for a summary judgment to find that liability for the accident rests entirely on driver of the truck and does not rest at all on her. Both the driver of the commercial vehicle and one of the passengers in the passenger vehicle, ask that the summary motion be denied because there are more issues of fact that need to be decided.

There is clearly a conflict of testimony in that each driver states a completely different account of the accident than the other. The driver of the truck is maintaining that either the passenger vehicle was trying to pass him on the left hand side while he was making a left hand turn, or that the passenger vehicle was trying to change lanes in front of his vehicle. The driver of the truck further maintains that the center lane of the roadway is reserved for trucks and that because his vehicle makes wide turns, the passenger car would have had to move into on-coming traffic in order to pass his truck. The truck driver also states that the driver of the passenger car was not actually driving her vehicle at the time of the accident. He states that the alleged passenger of the vehicle was actually the driver of the vehicle. He stated that the woman who identified herself as the driver of the vehicle, but who did not have any identification on her at the time of the accident had a tattoo on her left bicep of a scroll. At her deposition, the alleged passenger of the car had a tattoo on her left bicep that was a scroll. Also, the driver of the passenger car had a tattoo on her left arm of a cross. There is also dispute about if the passenger door was operable after the accident.

The alleged passenger advised that following the accident, she was trapped in the vehicle because the door was jammed by damage caused in the accident and that it could not be opened. The driver of the commercial truck advised that the passenger had exited the passenger vehicle and approached his window and that the person he had seen exit the passenger side was the person who is now claiming to be the driver of the car.

Because these issues are in conflict, the court finds that it must deny the passenger car driver’s motion for summary judgment to find liability on the part of the commercial truck driver. The court also dismissed any motion for summary judgment on the part of the passenger car driver as it regards any liability to her as far as damages by her passenger are concerned.

This does not mean that the case is over. What happens next is that the issues that are in question must be decided in a court of law. Since the parties involved are unable to reach agreement about what happened the date of the accident, the court must call other witnesses and review the accident report and other documents that will more accurately reflect the conditions of the vehicles and the debris located in the roadway. It is cases like this that are tried on points of law and on physical evidence rather than on visual testimony as it is presented. Witnesses will be called possibly including the police officer who handled the accident scene. It will be important to determine if the damage to the passenger vehicle is consistent with it becoming jammed because of the damage that befell the vehicle in the course of the accident. It will also be important to determine where the debris from the accident was located, which should be recorded on the accident report. If there were any skid marks on the roadway, they will also be important in the judgment of where the vehicles were located on the roadway at the time of the accident. In cases such as this, it is even more important to have proper legal representation to maneuver the court system. It is clear in this case that proper trial management is the only way to solve the disputes between these parties.
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