- Emily B. – Driver Injured When Struck from Behind
- Suzanne D. – Driver Injured in Head-On Accident
- Kim D. – Driver Injured in Head-On Accident
- Felice C. – Driver Injured When Hit While Making Left Turn
- Dwayne G. – Pedestrian Injured in Crosswalk
- James G. – Driver Injured in Rear End Accident
- Raymond H. – Driver Sideswiped and Crashes into Divider
- John L. – Passenger Injured while Driver is Under The Influence
- Harold M. – Man Injured While Filling Tires at Gas Station
- Brendan O. – Pedestrian Injured
- Lionel R. – Vehicle Rear-Ended
- Wayne S. – Driver Strikes Car Parked in Gas Station
- Chris S. – Ambulance Struck From Behind, Injures Paramedic
- Steers – Driver Struck During Left Turn
- Josephine T. – Driver Crosses Two Lanes, Causes Collision
- Eric W. – Driver Broadsided by FedEx Truck
- Mark B. – Driver Rear-Ended when Traffic Comes to a Fast Halt
- Elizabeth C. – Driver Rear-Ended by Driver in Rental Car
- Mary D. – Missing Stop Sign Leads to Collision
- Francis F. – Pedestrian Hit By Van at Crosswalk
- William S. – Truck in Left Lane Causes Collision
- Jenna O. – Driver Ignores Red Light, Causes Collision
- Jeanine M. – Truck Crashes Into Car at Intersection
- Jenna O. – Plaintiff Gets Increased Award on Appeal
- Christina W. – Driver Injured in Intersection Collision
- Thomas C. – Truck Collides with Thirteen Stopped Cars
- Thomas M. – Truck Struck Bicyclist after Driver Fell Asleep
Emily Lynn and Robert B. v. Sandra Lundell and Elliot Jonas 2385/97 4-day trial Verdict 5/21/99 SuffoIk Supreme
Judge: Jack I. Cannavo.
Verdict: $218,500 for Emily B. (5/1). Breakdown: $40,000 for past pain and suffering; $33,500 for past lost earnings; $50,000 for future pain and suffering; $30,000 for future lost earnings; $50, 000 for future medical expenses; $15,000 for future physical therapy. $20,000 for spouse for loss of services. Post-trial motions were denied. Jury: 4 male, 2 female.
Pltf. Atty.: Daniel P. Buttafuoco of Daniel Buttafuoco and Assoc., Woodbury.
Deft. Atty.: James F. Furey of Perez and Furey, Uniondale.
Facts: This motor vehicle accident took place on 7/30/96 at the intersection of Marie Drive and
Southdown Rd. in Huntington. Pltf., a 36-year-old self-employed piano teacher, claimed that her vehicle was struck in the rear by a vehicle driven by Deft. Lundell and owned by Deft. Jonas while she was stopped at a stop sign. Liability was conceded and this trial was on the issue of damages.
Injuries: herniated cervical disc at C5-6 with nerve impingement. Pltf. was out of work for 6 weeks following the accident. She underwent physical therapy and claimed that she still experiences pain. Pltf.’s expert testified that her injury is permanent, and that future surgery is likely. Deft. denied that Pltf. sustained a serious injury under the No-Fault Law, Insurance Law § 5102( d). Deft. contended that there was an incidental MRI finding, and claimed that the injury is not causally related to the accident. Deft. further contended that there was no nerve compression. The jury found that there was no permanent consequential limitation of use of a body part or function and no significant loss of use, but found that Pltf. met the 90/180 day threshold.
Demonstrative evidence: photos of Pltf.’s vehicle; charts of herniated discs; MRI films; model of the spine. Offer: $80,000; demand: $250,000. Jury deliberation: 5 hours. Carrier: Chubb.
Pltf. Experts: Dr. Ali Guy, physiatrist, Manhattan; Dr. Jeffiey Klein, spine surgeon, Brooklyn.
Deft. Expert: Dr. Edward Ryan, neurosurgeon, Huntington.
Suzanne and Nicholas D. v. Herbert Zundel 001772/94 5-day trial Verdict 4/9/98 Nassau Supreme
Judge: Joseph A. DeMaro
Verdict: $360,000 for Suzanne D. (6/0). Breakdown: $150,000 for past pain and suffering; $100,000 for future pain and suffering; $ 60,000 for future medical and chiropractic care; $50,000 for future dental expenses. $10,000 for Nicholas D. (6/0). Breakdown: $5,000 for past loss of services; $5,000 for future loss of services.
The case settled for $275,000 ($100,000 policy) 2 weeks after trial. Jury: 2 male, 4 female.
Pltf. Atty: James V. Mattone of Daniel P. Buttafuoco, Mineola.
Deft. Atty: Eileen s. Lobelson of Frank V. Merlino, Garden City.
Facts: On 12/4/93 at 12:30 PM, Pltf., a 26-year-old computer programmer, was involved in a car accident at the intersection of County Line Rd. and Old Sunrise Hwy. in Nassau County. It was raining at the time. Pltf. claimed that she was driving on County Line Rd. when Deft.’s vehicle swerved out of control, crossed the double- yellow line, and struck her vehicle head-on. Deft. claimed that he could not remember the accident, but would have contended that an eyewitness told police that he had been cut off by another vehicle making a left turn, and that he lost control of his car due to the rainy conditions. This eyewitness was not produced at trial, and her statement was not in evidence and was not before the jury.
Injuries: temporomandibular joint dysfunction; herniated lumbar disc at L4-5, pressing on the thecal sac; bulging lumbar disc at L5- S 1; displaced meniscus. Pltf. contended that she had been very athletic before the accident, and that she had been taking professional bowling lessons and had planned to attempt a professional bowling career. She claimed that she could no longer bowl because of her injuries. There was testimony that Pltf. had chiropractic treatment 1 year before the accident, and that she had prior lockjaw. The court granted a directed verdict as to permanency for the TMJ because Deft. failed to produce a doctor to contradict Pltf. s expert s testimony that this type of injury is permanent.
Demonstrative evidence: MRls; three-dimensional skeleton and spine; photographs of car; medical records. Offer: $60,000; demand: $100, 000 (policy); amount asked of jury: $450,000. Jury deliberation: 2 hours. Carrier: Allstate.
Pltf. Experts: Dr. Jay Goldman, dentist and TMJ specialist, Woodbury; Dr. Mitchell Goldstein, orth. surg.,Valley Stream.
Deft. Expert: Dr. John Killian, orth. surg., Garden City.
Kim D. v. Elaine Squadrito and John Goldstein 032072-93 3-day trial Verdict 3/3/98 Nassau Supreme
Judge: Ute Wolff Lally
Verdict: Pltf.’s verdict on liability v. Squadrito. Defense verdict for Goldstein (6/0). Deft. Squadrito settled during the damages trial for $75,000. Post-trial motions were denied. Jury: 3 male, 3 female.
Pltf. Atty: James V. Mattone of Daniel P. Buttafuoco, Woodbury.
Deft. Atty: Joseph Varvaro of Eustace & Furey, Uniondale, for Goldstein, Gary A. Teubner of Frank V. Merlino, Garden City, for Squadrito
Facts: The accident occurred on 8/23/93 at 9:20 AM at the intersection of Broadway and Pittsburgh Rd. in Massapequa. Pltf., a 27-year-old graphic artist, claimed that she was driving on Broadway when Deft. Squadrito (100% liable), traveling in the opposite direction, crossed the double yellow lines and struck Pltf. s vehicle head-on. Deft. Squadrito claimed that she was cut off by Deft. Goldstein (defense verdict), causing her to swerve into Pltf. s lane. There was no contact between the Squadrito and Goldstein vehicles. Deft. Goldstein claimed that he had stopped his vehicle after the accident to offer assistance, and was mistakenly identified by Deft. Squadrito as the driver of the vehicle that cut her off. Pltf. could not identify either car. Deft. Squadrito was granted an emergency charge.
Injuries: (settled during the damages trial for $75,000) bilateral temporomandibular joint dysfunction. Demonstrative evidence: poster depicting TMJ. Specials: $6,200 for medical expenses; $2,080 for lost earnings. Offer: $10,000; demand: $100,000. Jury deliberation: 2 hours. Carriers: Chubb for Goldstein; Allstate for Squadrito.
Pltf. Expert: Dr. Vincent LaBruna, dentist, Manhattan
Deft. Expert: Deft. would have called Dr. Barry Cooper, dentist and TMJ specialist.
Felice C. v. Eun Joo Choi 29073/92 3-day trial Verdict 3/29/95
Judge Thomas V. Polizzi, Queens Supreme
VERDICT: Liability: Deft. 100% negligent (6/0). The case settled before the damages trial for $100,000 (policy). Jury: all female.
Pltf. Atty: Edward J. Nitkewicz of Daniel P. Buttafuoco & Associates, Mineola.
Deft. Atty: Robert H. Ringer, Brooklyn, for Scalzi & Nofi, Melville.
Facts: The incident occurred on 9/25/92 at 6 p.m. on Rte. 110 at the intersection with the Westbound service road of the long island Expressway in Huntington. Pltf., a 27 year old account executive for a radio station was traveling southbound in the left lane and Deft. was drtiving Northbound on 110. Pltf. claimed that Deft. attempted to make a left turn across the southbound traffic to enter the expressway, when she lost control of her vehicle and spun into the path of the Pltf.’s car. Pltf. argued that Deft. failed to yield the right-of-way when he was in the intersection. Deft. contended that Pltf. was 200 yards away from the intersection when she began her turn. She also contended that Pltf. was speeding.
Injuries: (not before the jury settled for $100,000) herniated discs at C5-6, C6- 7, and L5-S I; temporomandibular joint syndrome. Demonstrative evidence: diagram of accident scene; photographs of the intersection. Specials: approximately $5,700 for medical expenses; approximately $11,500 for lost earnings. Offer: $75,000; demand: $100,000 ( policy). Jury deliberation: 1 hour and 30 minutes. Carrier: State Farm. There was no expert testimony.
SETTLEMENT: Dwayne G. v. Patriot Courier Service, Inc. 21318/00 Date of Settlement 10/10/02 Queens Supreme.
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Woodbury
Deft. Atty: Gregory S. Katz of Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., Manhattan.
This action settled before jury selection for a partially structured settlement having a cash value of $900,000. Plaintiff was a 30-year-old carpenter who was struck by defendant’s armored vehicle as he crossed in the crosswalk at the intersection of Eighth Ave. and West 39th St. in Manhattan. Plaintiff contended that he had a walk signal. Defendant would have testified that its driver made a left turn on a green light. Defendant’s answer was stricken for its driver’s failure to attend depositions. Defendant’s motion to reopen on the grounds that its driver was in the military and was not able to attend depositions had not been decided when this case settled.
Injuries: herniated lumbar discs at L4-5, L5-SI with a discectomy at both levels and a fusion at L4-S1; tear of the left (nondominant) glenoid labrum. Plaintiff never returned to work. He was earning $25,000 per year at the time of the accident. Defendant would have contended that plaintiff had been injured in a subsequent fall in July 2001, and that the hospital record showed that plaintiff had a pre-existing herniated disc. Structured settlement details: The action settled for $500,000 cash, plus a $400,000 structure, with a projected yield of $1,600,026. Carrier: Hallmark ($1,000,000 policy).
Pltf. Expert(s): Dr. Richard Parker, orth. surg., Valley Stream; Dr. Robert Diamond, radiologist, Bedford; Dr. Lancelot Young, orth. surg., Howard Beach; Dr. Ali Araghi, orth. surg., Howard Beach; Dr. Steven Pinsky, anesthesiologist, Rockville Centre.
Deft. Expert(s): Dr. Joseph L. Paul, orth. surg., Brooklyn; Dr. Joyce Mesch-Spinello, vocational rehabilitation, Manhattan; Dr. Marina Neystat, neurologist, New Hyde Park; Dr. Vincent Amato, chiropractor; Dr. Jeffrey Schwartz, physical and rehabilitative medicine, Manhattan.
James and Ada G. v. Craig and Antonio Augugliaro 16088/88 2-day trial on liability Verdict 4/16/91 11 day trial on damages Verdict 5/2/911
Judge Ralph Yachnin, Nassau Supreme.
VERDICT: $433,003 for James G.; $23,400 for Ada G. for loss of services (6/0). Breakdown: $50,000 for past pain and suffering; $200,000 for future pain and suffering; $30,000 for future medical expenses; $129,633 for lost earnings. Post-trial motions were denied.
Pltf. Atty: Charles Gucciardo of Daniel P. Buttafuoco & Assoc.,Mineola
Deft. Atty: Robert H. Ringer of Stanley Waxman, Great Neck.
Facts: This motor vehicle accident occurred on 7/27/87 at 1:30 PM on Hempstead Tpke. in Elmont. Pltf., a 62-year-old senior storekeeper for the Board of Education, was stopped behind other vehicles in the left lane waiting to turn left into a parking lot when his vehicle was struck in the rear by Deft. with enough force to bend the chassis. Deft. testified that he never saw Pltf.’s vehicle before impact.
Injuries: herniated disc at L4-5 confirmed by MRI; possible herniation at C4-5. Deft. contended that Pltf.’s injuries were the result of pre-existing arthritic conditions and degenerative spondylolisthesis. Deft.’s neurologist testified that although the MRIs appeared to show herniated disc, there was no actual herniation. Pltf. was 2 and 1/2 years from retirement age at the time of the accident.
He called a representative from the Board of Education who testified that if Pltf. had worked until age 65, he would have received 55% of his salary as a pension. Specials: $30,000 estimated for two future laminectomies. Offer: $100,000; demand: $300,000. Jury deliberation: 35 minutes on liability; 2 and 1/2 days on damages.
Pltf. Expert: Dr. A. Philip Fontanetta, orth. surg., Garden City.
Deft. Experts: Dr. Leon Sultan, orth. surg., Franklin Square, Dr. Irwin Schlesinger, neurosurgeon, Manhasset.
SETTLEMENT: Raymond H. v. Rochelle Lynn and Sheldon Schorr 25573/92 Date of Settlement 10/25/95 Queens Supreme
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Mineola
This action settled during jury selection for a structured settlement with a cash value of $1,500,000 and a total payout of $2,749,100. Pltf., a 39-year-old wine sales executive at the time, claimed that on 8/12/92 at 8:45 AM his vehicle was sideswiped by Deft.’s car as he was traveling northbound on the Cross Island Pkwy. in Queens. Pltf. claimed that Deft. made an improper lane change from the middle lane into the left lane. The left rear section of Deft.’s vehicle struck the right front section ofPltf.’s car. Pltf. testified that his vehicle then hit the center divider and overturned.
Deft. claimed that she looked for traffic prior to changing lanes. She denied that there was contact between the vehicles.
Injuries: comminuted fracture of the left talus; nasal fracture; fracture of the left orbital floor; comminuted fracture of the left tibial plateau resulting in knee reconstruction and total knee replacement. Pltf. testified that he walks with a slight limp and has restricted mobility in his knee and ankle. He underwent physical therapy and medical treatment. Pltf. testified that he was ultimately fired from his job because he was unable to perform the work. He was earning $52,000 per year at the time of the accident. Demonstrative evidence: photographs of Pltf.’s car showing red paint from Deft.’s vehicle; model of the knee; artist rendition of the knee replacement surgery. Carrier: Allstate.
SETTLEMENT: John L. v. Adam Steinmetz; Elrac, Inc.; and Enterprise Rent-A-Car 127807/95 Date of Settlement 4/28/98 New York Supreme
Pltf. Atty: James V. Mattone of Daniel P. Buttafuoco & Associates, Mineola.
This action settled after jury selection for $125,000. Pltf., a 22- year-old cook and volunteer fireman, claimed that on 7/23/95 at 3:30 AM he was a passenger in a vehicle driven by Deft. Steinmetz. They were near the intersection of Manetto Hill Rd. and Robin Lane in Plainview when, he claimed, the vehicle was cut off by an unknown car. Deft. swerved, hitting a tree and fence. Steinmetz was driving a vehicle that was leased by Deft. Enterprise. Pltf. and Deft. had been drinking at a bar earlier that evening. Pltf. claimed that Deft. had more than two beers and two shots. Deft. claimed that he drank two beers and two shots over a 4-hour period. Pltf. was asleep in the front seat and could not recall how the accident occurred. He was rendered unconscious at the scene. Deft., who had a BAC of .17, was arrested and pleaded guilty to driving while ability impaired.
Injuries: two fractured ribs; herniated lumbar discs at L3-4 and L4-5 .Pltf. suffered a seizure at the hospital and was treated with Dilantin. Offer: $50,000; demand: $500,000. Carrier: Travelers.
Motor Vehicle – Man Injured While Filling Tires at Gas Station
XVI/34-43 MOTOR VEHICLE – MAN FILLING TIRES AT PARKWAY GAS STATION STRUCK BY VEHICLE INVOLVED IN PARKWAY COLLISION- MULTIPLE LEG AND FACIAL FRACTURES
SETTLEMENT: Harold and Harriet M. v. Amy Nevins, Gabriel Cohen, Carl and John Angello, Mobil Oil Corporation, and Mobil Service Station 40580/95 Date of Settlement 1/27/99 Kings Supreme
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Woodbury.
This $700,000 cash settlement was reached before opening statements on liability. Pltf., a 63-year-old security guard, claimed that on 11/2/92 he was injured at a parkway gas station, located on the Grand Central Pkwy. Pltf. had stopped at the Mobil station to put air in his tires. Evidence indicated that the air pump was located in the same lane as the gas pumps. Pltf. had parked his vehicle between the air pump and the gas pumps, and exited the car to put air in the right rear tire. It was raining at the time. Deft. Angello, driving in the left lane, claimed that Deft. Cohen, driving a vehicle owned by Deft. Nevins, changed from the right to the left lane, striking his vehicle, and causing both vehicles to spin out toward the gas station, where the Cohen car struck Pltf., who was filling his tire with air. Cohen produced an eyewitness present at the Mobil station at the time of the accident who stated that the Angello vehicle entered the right side of the parkway from Hwy. 3 (a police station for highway patrol), and traveled across three lanes of traffic, where contact was made with the Cohen vehicle. Angello was an off-duty police officer stationed at Hwy. 3. Defts. Angello and Cohen would have argued that Mobil was also at fault because the position of the pumps was dangerous. Mobil would have argued that it did not have control of the gas station, which was built in the 1920s, and that it had no input on the station’s plan and design.
Injuries: midshaft fracture of the tibia and fibula of the left leg, requiring surgery for the insertion of a rod; trimalar compression fracture of the left orbit; displaced fracture of the left zygomatic arch. Pltf. underwent surgery to repair the facial fractures. He was hospitalized for 2 weeks following the accident. He walks with a cane and has mild residual pain. Pltf. was out of work for 6 months after the accident, and then retired at the end of last year at the age of 69. Settlement apportionment: $325,000 paid by Angello; $325,000 paid by Cohen ; $50,000 paid by Mobil. Carriers: Allstate for Angello; P.S.A. for Cohen; Mobil is self-insured. Note: a motion for summary judgment by Mobil to be let out was pending at the time of trial.
Oncoming car not visible, struck man claimed.
Settlement- $300,000 Brendan O. and Rosalie O. v. Eddie H. Piedra, Associates Leasing, Inc. and One Source Corp., No. 8076/03
Court: Queens Supreme
Judge: Valerie Brathwaite Nelson Date: 6/3/2005
Pltf. Atty(s): Daniel P. Buttafuoco, Daniel P. Buttafuoco & Associates, Woodbury , NY.
Def. Atty(s): Stephen J. McGiff, McGiff & Zukowski P .C., Patchogue, NY.
Facts & Allegations: At approximately 5:40 a.m.on Jan. 20,2003, plaintiff Brendan O., 59, a union carpentry instructor and a part-time pastor, was struck by a motor vehicle. The incident occurred on Duffy Avenue, near its intersection with Newbridge Road, in Hicksville. O. claimed that he sustained multiple injuries.
O. sued the vehicle’s driver, Eddie Piedra; the vehicle’s lessor, Associates Leasing Inc.; and Piedra’s employer, One Source Corp. He alleged that Piedra was negligent in the operation of his vehicle, that Associates Leasing was vicariously liable for Piedra’s actions and that One Source was liable because the accident occurred within the scope of Piedra’s employment. O. claimed that he looked for oncoming traffic, observed that there was none, and stepped onto Duffy Avenue. He contended that the incident occurred after he had crossed 2.5 lanes of traffic. As such, he argued that Piedra had sufficient time to see and avoid him. He also contended that O. had not activated his vehicle’s lights.Piedra contended that the intersection’s traffic signal was green and that his vehicle’s lights had been activated. He claimed that Piedra was imperceptible because he was wearing dark clothing and because he was approximately three car lengths away from the crosswalk.
In response, O. contended that the collision occurred approximately one car length away from the crosswalk.
Injuries/Damages: Embolism; fracture, rib; pulmonary; punctured lung; torn meniscus; torn rotator cuff. The trial was bifurcated, so damages were not before the court.
O. was placed in an ambulance and transported to Nassau University Medical Center, in East Meadow, where doctors determined that he had sustained 12 rib fractures, a punctured lung, a tear of his left knee’s meniscus and a tear of his left (nondominant) shoulder’s rotator cuff. O.’s hospitalization lasted eight days, but he subsequently developed a pulmonary embolism that necessitated his admittance to another hospital, where he underwent insertion of a Greenfield filter . O.’s medical expenses were paid by no-fault insurance. His past lost earnings were paid by his union, but he claimed that he was not reimbursed for $10,000 in overtime pay that he could have earned. He sought recovery of the overtime pay, $100,000 in future medical expenses, and damages for his past and future pain and suffering. His wife, Rosalie, presented a loss-of-services claim. The defendants contended that O. recovered well and that he has resumed both of his jobs.
Result:The jury rendered a plaintiffs’ verdict, but O. was assigned 50% comparative negligence. Prior to the scheduled start of the damages trial, the parties agreed to a $300,000 settlement. The money was allocated to O.’s past and future pain and suffering.
SETTLEMENT: Lionel R. v. Charles Brower and All Island Leasing 2809/90 Date of Settlement 6/15/93 Nassau Supreme.
Pltf. Atty: Mark T. Freeley of Daniel P. Buttafuoco & Associates, Mineola.
This case settled before trial for $150,000 for injuries to a 40-year- old delivery man whose vehicle was struck from behind by Deft.’s vehicle. The accident occurred on 5/4/87 at approximately 12:15 PM. Pltf. claimed that he stopped on South Ave. in Garden City to make a left turn. Both parties agreed that it was raining heavily at the time of the accident and that there were large puddles all over the road. Pltf. contended that he had come to a full stop and had his directional on when his vehicle was hit from behind and was propelled into oncoming traffic. Deft. Brower, driving a cube van owned by Deft. All Island, contended that Pltf. stopped short. He also claimed that he was unable to stop the van on the wet road surface due to his wet brakes. Deft. also admitted that water splashed across his windshield and blurred his vision when he drove through a puddle.
Injuries: herniated discs at C3-4, C5- 6, and L4-5, with radiculopathy. The herniations were confirmed by MRI and the radiculopathy was confirmed by EMG. Pltf. missed 2 years from work. He was treated by an orthopedist from 1987 through 1990. Pltf. claimed that he experiences daily pain. Carrier: Liberty Mutual.
SETTLEMENT: Wayne S. v. Ricky Yuen, Hampshire Designers, Inc. 109835/97 Date of Settlement 7/20/99 New York Supreme.
Pltf. Atty: Mark T. Freeley of Buttafuocco & Associates, Woodbury.
This action settled for $240,000 prior to jury selection. Pltf., a 38-year-old produce manager, claimed that on 4/18/97, his vehicle was struck by Deft.’s vehicle while it was parked in a gas station. Pltf. would have claimed that he was sitting in the car when Deft., who was turning onto Mill Rd. from Peninsula Blvd. in Hewlett, lost control of his vehicle, jumped a curb, and struck Pltf.’s car .It was raining lightly, and Pltf. would have claimed that Deft. was driving too fast given the weather conditions.
Injuries: herniated cervical discs at C3-4 and C4-5 with radiculopathy. Pltf. underwent chiropractic and neurological treatment. He also underwent MRIs and EMGs. Deft. would have claimed that Pltf. s injuries were pre-existing. Carrier: Liberty Mutual.
Pltf. Expert: Dr. Angela Rose Marazita, chiropractor, Lawrence; Dr. Allan Hausknecht, neurologist, Hewlett.
Deft. Expert: Dr. Burton Diamond, neurologist, Cedarhurst; Dr. Jacob Toledano, orth. surg., Jamaica.
Motor Vehicle – Ambulance Struck From Behind, Injures Paramedic
XX/5-18 MOTOR VEHICLE – AMBULANCE STRUCK IN REAR- SUMMARY JUDGMENT ON LIABILITY NO-FAULT QUESTION ON HERNIATED LUMBAR DISCS, POST-TRAUMATIC STRESS DISORDER, AND UROLOGICAL INJURIES- SURVEILLANCE VIDEO.
Christopher S. v. James Zeagers and Sterlco Inc. 656/99 11-day trial Verdict 6/10/02 Queens Supreme
Judge: Phyllis Orlikoff Flug
Verdict: $350,000 (6/0). Breakdown: $15,000 for past pain and suffering; $15,000 for future pain and suffering (5 years); $140,000 for past lost earnings; $50,000 for future lost earnings (3 years ); $30,000 for past medical expenses; $100,000 for future medical expenses (8 years). Jury: 5 male, 1 female.
Note: Initially the jury returned with a verdict awarding no damages for past pain and suffering, and $30,000 for future pain and suffering (for 0 years). The verdict also did not indicate a period of time for the future lost earnings. The court instructed the jury to correct these inconsistencies, which they did, resulting in the above-listed verdict. A post-trial motion is likely.
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Assoc., Woodbury , of counsel to Bonnie S. Peters, Huntington.
Deft. Atty: Michael T. Reilly of Greenfield & Reilly, Jericho.
Facts: This motor vehicle accident occurred on 8/20/98 at the intersection of W. 25th St. and 8th Ave. in Manhattan. Plaintiff, a 27-year-old EMS paramedic, was traveling in an ambulance on 8th Ave. and had stopped in the middle of the intersection to make a left onto W. 25th St. when his vehicle was struck in the rear by defendant’s vehicle. Plaintiff was granted summary judgment on liability and this trial was on the issue of damages only.
Injuries: herniated lumbar discs at L4-5, L5-S1 requiring a laminectomy at the L5-S1Ievel, performed in December 1998; post- traumatic stress disorder; neurogenic bladder; sexual dysfunction. Plaintiff has not returned to work. The defendant denied that the plaintiff sustained a serious injury under the No-Fault Law, Insurance Law §51 02( d). Defendant argued that the impact was minor and that plaintiff’s back injuries were pre-existing and degenerative and not causally related to this accident. Defendant further contended that plaintiff was involved in three prior accidents, and had suffered a prior L-l fracture. Defendant’s expert testified that plaintiff’s urological testing is normal. Defendant disputed the severity of plaintiff’s injuries and argued that he is capable of working. Demonstrative evidence: photographs of the vehicles; plaintiff’s wedding video from 9/00; surveillance video from 12/00, showing plaintiff Christmas shopping for over 2 hours, carrying a shopping bag.
Offer: $350,000; demand: $1,500,000; amount asked of jury: in excess of $5,000,000. Jury deliberation: 4 hours. Carrier: St. Paul (primary carrier); The Hartford (excess carrier).
Pltf. Expert(s): Dr. Ali Guy, physiatrist, Manhattan; Dr. Thomas Dowling, spine surgeon, Commack; Stuart Sachnin, Ph.D., vocational economist, Manhattan; Dr. George Rulli, chiropractor, Centereach; Dr. Michael Ferrato, psychologist, Merrick; William Deblasio, engineer, Huntington.
Deft. Expert(s): Dr. Leonard Biel, urologist, Manhattan; Dr. Barry Jupiter, orth. surg., Hewlett; Dr. Robert Karlan, neurologist, Flushing; Joyce Mesch-Spinello, Ph.D., vocational rehabilitation, Manhattan.
Plaintiffs vehicle struck while speeding through intersection
Settlement $250,000 Hughnel E. Steers III v. Teresa Primrose, No. 18579/01
Court: Nassau Supreme Judge: John M. Galasso Date: 4/8/2005
Plaintiff Attorney(s) Daniel P. Buttafuoco, Daniel P. Buttafuoco & Associates P. L.L.C., Woodbury, NY
Defense Attorney(s) Timothy J. Flanagan, Cullen & Dykman, Brooklyn, NY
Facts & Allegations: On Oct. 18,2001, plaintiffHughnel Steers, 24, a student, was driving on westbound Hempstead Turnpike, near its intersection with Plainfield Avenue, in Floral Park. As Steers’ vehicle proceeded through the intersection, it was struck by a vehicle that was being operated by Teresa Primrose, who was making a left turn onto eastbound Hempstead Turnpike, from southbound Plainfield Avenue. Steers claimed that he sustained a fracture ofhis left leg and a fracture ofhis left elbow.
Steers sued Primrose. He alleged that she was negligent in the operation of her vehicle.
Steers claimed that his vehicle had the right of way and thus, that Primrose was liable for the collision.
Primrose contended that she never saw Steers’ vehicle and that her vision was obscured by a hill and a bend in the road. She also contended that the turnpike’s speed limit was 35 mph, but that Steers’ vehicle was traveling faster than 60 mph. Two eyewitnesses agreed that Steers was exceeding the speed limit.
Injuries/Damages: Fracture, elbow; fracture, fibula; fracture, tibia; internal fixation; open reduction
The trial was bifurcated, so damages were not before the court. However, evidence established that Steers was placed in an ambulance and transported to South Nassau Communities Hospital, in Oceanside. He claimed that he sustained a fracture of his left leg’s fibula and tibia. He also claimed that he sustained a shattering fracture of his left (nondominant) arm’s elbow. He underwent open reduction and internal fixation ofhis leg fracture. He also
underwent total replacement ofhis left elbow. The surgeries were followed by several months of physical therapy. Steers sought recovery of unspecified damages for his past and future pain and suffering.
Result: The jury rendered a plaintiffs verdict, but Steers was assigned 30% comparative negligence. Prior to the scheduled start of the damages trial, the parties agreed to a $250,000 settlement.
Insurer: New York Central Mutual Fire Insurance Co.
Plaintiff Expert(s) None reported
Defense Expert(s) Paul A. Ast, Ph.D., engineering, New York, NY (did not testify)
Plaintiff claimed driver crossed two lanes, caused collision.
Settlement: $650,000 Josephine T. v. Salvatore A. Mincone and Anthony S. Mincone, No. 4157/04
Court: Nassau Supreme
Judge: Michele M. Woodard
Plaintiff Atty(s): Daniel P. Buttafuoco, Daniel P. Buttafuoco & Associates, Woodbury, NY.
Defense Atty(s): Jeffiey D. Present, Montfort, Healy, McGuire & Salley, Garden City, NY.
Facts & Allegations: On Jan. 12,2004, plaintiff Josephine T., 43, a part-time teacher’s aide, was driving in the southbound left lane of South Oyster Bay Road, near its intersection with Old Country Road, in Plainview. As T. approached the intersection, her vehicle was struck in the front driver’s side by a vehicle that was being operated by Anthony Mincone, who was attempting to cross two lanes of traffic into the northbound lane. T.’s vehicle then crossed into oncoming traffic and came to a complete stop after hitting a sign pole. She sustained injuries to her neck, back and knee.
T. sued Mincone and the owner of Mincone’s vehicle, Salvatore Mincone. She alleged that Anthony Mincone was negligent in the operation of his vehicle and that Salvatore Mincone was vicariously liable for Anthony Mincone’s actions.T. claimed that Anthony Mincone should have yielded the right of way. A non-party witness testified that Mincone exiting a parking lot and attempted to cross over the southbound lanes. The defendants claimed that T. admitted traveling about 40 mph as she approached the intersection’s red light. They argued that she failed to reduce her rate of speed appropriately.
Injuries/Damages: Fracture, rib; fusion, cervical; physical therapy; soft- tissue injuries. T. was placed in an ambulance and transported to North Shore University Hospital, in Syosset, where she was treated for soft-tissue injuries to her left knee, chest pain, and four fractured ribs. Six weeks post-accident, she was diagnosed by her treating physiatrist with a disc herniation at C5-6. After 15 months of conservative treatment, she underwent fusion surgery to repair a disc protrusion at C6- 7. During the surgery, a ligament tear at C6- 7 was discovered. She was unable to return to work. T.’s expert physiatrist testified that her injuries were causally related to the accident, including the cervical tear . He opined that her original MRI films were of poor quality and did not show the herniation at C6-7. However, he testified that an additional MRI, taken about one year post-accident, confirmed the herniation. He claimed that she requires lifelong physical therapy. T.’s vocational-rehabilitation expert testified that she is unable to return to work as a teacher’s aide.
T. sought recovery of her future medical costs, her future lost wages, and damages for her past and future pain and suffering. At the time of the accident, she was earning between $125 and $200 a week. The defendants contended that the first MRI, which was taken three months post-accident, failed to show any herniation at the level at which the surgery was performed and that the physiatrist’s EMG test showed positive only at C5-6. They also claimed that there were no reported complaints of neck pain in the emergency room. The defendants’ expert neurologist determined there was not a causally connected neurological injury at C6- 7 and no need for fusion surgery.
Result: In the trial’s liability phase, the jury rendered a plaintiff’s verdict. During the third day of the damages phase, the parties agreed to a settlement. The defendants’ insurer agreed to pay $650,000 from its $1.3 million policy.
Offer: $ 1,200,000/$300,000 high/low
Insurer: Government Employees Insurance Co. for both defendants
Plaintiff Expert(s): Ali E. Guy, M.D., physical medicine, New York, NY
Jeffrey D. Klein, M.D., orthopedic surgery, Brooklyn, NY (treating surgeon; did not testify)
Alan M. Leiken, Ph.D., economics, East Setauket, NY (did not testify)
Edmond A. Provder, vocational rehabilitation, New York, NY.
DefenseExpert(s): Sondra I. Pfeffer, M.D., diagnostic radiology, New York, NY
C.M. Shanna, M.D., neurology, New York, NY (did not testify)
Leon Sultan, M.D., orthopedic surgery, Franklin Square, NY (did not testify).
Eric W. v. Richard Casale, HLR Corp., and Federal Express 3228/89 5- day trial Verdict 3/9/93 Judge Francis Alessandro, Bronx Civil.
VERDICT: $325,000, reduced to $260,000 for 20% comparative negligence of Pltf. (6/0). Remaining liability: Federal Express 80% negligent. Breakdown: $50,000 for past pain and suffering; $275,000 for future pain and suffering. The case subsequently settled for $225,000. Jury: 3 male, 3 female.
Pltf. Atty: Frank A. Andrea III of Andrea & Towsky for Daniel P. Buttafuoco & Associates, Mineola.
Deft. Atty: James H. O’Hare for Jeffiey Samel & Associates, Manhattan.
Facts: Pltf., a 50-year-old car service driver, claimed that on 2/6/89 at 3 PM his vehicle was broadsided by a Federal Express van driven by Deft. Casale at the intersection of Lott and Stone Aves. in Brooklyn. Pltf. claimed that he was proceeding north on Stone Ave. when he was struck by the van as he drove through the intersection, which was controlled by a stop sign. Deft. contended that the stop sign was missing.
Injuries: herniated disc at C5-6 with impingement on the spinal cord resulting in numbness in the right arm and hand; multiple neck lacerations. The herniated disc was confirmed by MRI. Deft.’s expert conceded that Pltf. had a bulging disc but did not testify as to the cause of the injury. Pltf. was out of work for approximately 4 months. Demonstrative evidence: hospital records; photographs of Pltf.’s injuries; accident report; Deft.’s physician’s reports. Specials: $5,000-$6,000. Offer: $ 125,000; demand: $165,000; amount asked of jury: $750,000. Jury deliberation:4 hours.
Pltf. Expert: Dr. Hal Gutstein, neurologist, Manhattan.
Deft. Expert: Dr. Ralph Olson, neurologist, Manhattan.
Mark B. v. Edward Halfm and Alia Tetelbaum 32497/91 26-day trial Verdict 1/30/95 Judge Feme J. Goldstein, Kings Supreme.
VERDICT: $181,500 (6/0). Breakdown: $50,000 for past pain and suffering; $100,000 for future pain and suffering; $31,500 for past lost earnings. Jury: 3 male, 3 female.
Pltf. Atty: Daniel P. Buttafuoco of Buttafuoco & Associates, Mineola.
Deft. Atty: Paul Bibuld of Armienti, Brooks, DeBellis & Dunphy, Manhattan.
Facts: Pltf., a 26-year-old UPS package driver, testified that on 5/3/91 at 6 PM he was traveling in the left lane on the Belt Pkwy. in his Camaro when traffic came to a sudden stop. He testified that a van, driven by Deft. Halfin and owned by Deft. Tetelbaum, struck the rear of his vehicle. Pltf. contended that he was able to stop in time to avoid impact with the car in front of him and that Deft. should have been able to do the same. Deft. argued that Pltf. stopped short.
Injuries: herniated disc at L5-S1; bulging disc at C5-6. Pltf. claimed that he was out of work for 5 months. He returned to work but after 3 days on the job, he reinjured his back on 10/3/91 while he was lifting a box. Pltf. filed a Workers’ Compensation claim for the second injury. He argued that the subsequent injury was related to the car accident. Pltf. testified that as a result he had to leave his employment with UPS, and he was working as a real
estate broker at the time of trial. Pltf.’s economist testified that he sustained a loss of $560,000 in employment pension benefits from UPS.
Deft. argued that Pltf. suffered from degenerative disc disease due to frequent bending and lifting for 8 years as a UPS driver. Deft. noted that an MRI revealed that Pltf. has degenerative disc disease at L5-S1. Pltf. claimed that this condition was latent or dormant, but resulted in a disc herniation upon impact in the motor vehicle accident. Deft. contested the causation of the herniated disc, arguing that it was not related to the accident.
Demonstrative evidence: complete life-size model of spine with a herniated disc; MRI film and CAT scan. Specials: $31,500 for past lost earnings. Offer: $50,000; demand: $250,000 (policy); amount asked of jury : $2,000,000. Jury deliberation: 2 days. Carrier: Kemper.
Pltf. Experts: Dr. Charles Aronica, chiropractor, East Meadow; Dr. Ali Guy, physiatrist, Manhattan; Thomas Kershner, Ph.D., economist, Saratoga Springs.
Deft. Experts: Dr. Ralph Olson, neurosurgeon, Manhattan; Dr. Lewis Rothman, neuroradiologist, Manhattan.
SETTLEMENT: Elizabeth and Savaltore C. v. Jorge Shimbukuro and ELRAC, Inc., d/b/a Enterprise Rent- A-Car 5615/97 Date of Settlement 4/19/01 Queens Supreme
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Woodbury.
This action settled prior to jury selection on damages for $1,425,000. On 10/19/96, Pltf., a 36-year-old registered nurse at Long Island Jewish Hospital and the mother of two, was stopped for a red light at the intersection of Glen Cove Ave. and Brewster St. in Glen Cove when she was struck from behind by a rental vehicle being operated by Deft. Shimbukuro. On 1/5/99, Judge Arthur W. Lonschein granted Pltf. summary judgment on liability, and the case proceeded on the issue of damages.
Injuries: herniated lumbar disc at L5-S1. In June 1999, approximately 3 years post-accident, Pltf. underwent a hemilaminectomy at the Hospital for Joint Diseases. Pltf. claimed that there was a possibility that she would require further surgery in the future.
Beginning in March 1997, Pltf. returned to work on limited duty for two to three shifts per week, but later cut back her schedule to twice weekly shifts. She was terminated in December 1999, following a leave of absence from April to June 1999. At the time, she had been earning an hourly rate of $28 and working three shifts per week. Pltf. was still treating with a physical therapist at the time of this settlement. Deft. would have disputed the extent of the injury and contended that the hemilaminectomy had been unnecessary and had only worsened Pltf. s condition. Carriers: Fireman’s Fund Insurance paid $1,000,000; Deft. was self-insured for the remainder.
Mary D. v. Saul Avent, Jr.; Addie Avent; and City of New York 1413/91 3-daytrial Verdict 3/18/96 Judge John A. Milano, Queens Supreme.
VERDICT: Liability: City 70%; Avent 0%; Pltf. 30% negligent (6/0). Subsequently settled on 3/19/96 for $225,000. Jury: 2 male, 4 female.
Pltf. Atty: Evan Gewirtz of Levy and Gewirtz, Queens Village, trial counsel for Law Offices of Daniel P. Buttafuoco & Assoc., Mineola.
Deft. Atty: Steven M. Hellreich of Schwartz, Totura & Andrews, Woodbury, for Avent
David Dolinsky, Asst. Corp. Counsel, for City.
Facts: On the evening of 1/8/89, Pltf., a 33-year-old federal corrections employee, was driving on Dormans Rd. when her car collided with a vehicle driven by Deft. Avent at the intersection of Newburg Rd. Pltf. testified that a stop sign on Dormans Rd. was down at the intersection, and Deft. Avent corroborated that fact. A non-party witness testified that the stop sign had been missing for 5-6 months before the accident. Pltf., who lived three blocks from the intersection in question, stated that she could not recall if the stop sign was standing the last time that she had traveled in that area, approximately 3 months before the instant accident. Deft. City (70% liable) conceded that the stop sign was down, but argued that there was no indication as to how long that condition existed. Deft. also argued that the testimony of Pltf.’s witness was inaccurate, noting that the witness testified that the accident occurred during the day rather than at night. Deft. also contended that Pltf. could have avoided the accident, and argued that she failed to follow traffic rules for entering an uncontrolled intersection. Deft. Avent testified that Pltf. never stopped as she entered Newburg Rd. from Dormans Rd., a side street. He contended that the impact occurred as soon as Pltf. entered the intersection.
Injuries: (not before the jury settled for $225,000 after liability verdict) herniated disc at L4-5. Pltf. had sustained a herniated disc at L5-S1 in 1984. She claimed that as a result of the accident at bar, she required a hemilaminectomy in 1993 at L5-S 1. Pltf. claimed that she is permanently disabled from working as a corrections employee. At the time of trial, she was working part-time at a different job. Offer: $75,000 from the City before liability; demand: $150,000. Jury deliberation: 1 and 1/2 hours. Carrier: Geico. There was no expert testimony.
Francis F. v. Karen and Robert Zerillo 8623/99 3-day trial Verdict 6/15/01 Queens Supreme.
Judge: Luther V. Dye
Verdict: Pltf.’s verdict on liability (6/0). Subsequently settled for $150,000. Jury: 2 male, 4 female.
Pltf. Atty: James Mattone of Buttafuoco & Associates, Woodbury.
Deft. Atty: Joseph Brown of Epstein, Hill, Grammatico & Gann, Mineola.
Facts: Pltf., age 79 and retired, testified that on 12/22/98, she was crossing in the crosswalk at the intersection of 48th Ave. and Bell Blvd. in Queens when she was hit by the left front corner of Deft.’s van. Deft. and an independent witness, who was in a car directly behind Deft., testified that Pltf. was wearing a hood and was looking down as she walked. They claimed that she walked into the right side of the van. The independent eyewitness had given a prior written statement to the insurance carrier investigator, and was deposed thereafter. On cross-examination, inconsistencies in the witness statements were brought out. The witness stated that Deft. told him at the scene that she did not know how the accident occurred.
Injuries: (not before the jury settled after the liability verdict for $150,000) fractured ankle with closed reduction. Demonstrative evidence: independent witness prior written statement. Offer: $25,000; demand: $90,000. Jury deliberation: 2 hours. Carrier: Nationwide.
Pltf. Experts: Dr. Warren Alpert, chiropractor, Bayside; Dr. Joseph Carfi, physiatrist, Great Neck.
Dr. Raymond Koval, orth. surg., Elmhurst; Dr. Audrey Eisenstadt, radiologist, Garden City.
SETTLEMENT: William and Margaret S. v. Eddie’s Service and Tire Repair, Inc. and Sharvin Davis Wilson 16591/94 Date of Settlement 9/4/97 Suffolk Supreme.
Pltf. Atty: James V. Mattone of Daniel P. Buttafuoco & Assoc., Mineola.
This case settled for $225,000 before summation on liability. Pltf., a 50-year-old field tester for LILCO, claimed that on 6/7/94 at 6:30 AM, his vehicle was struck by Deft.’s truck as they were traveling east on the Long Island Expwy. near Riverhead. Pltf. claimed that Deft. was traveling in the left hand lane at the time, and attempted to get back in the center lane when the front of his vehicle struck the rear of Pltf.’s car. Pltf. contended that trucks are not permitted in the left hand lane pursuant to codes and rules and New York State regulations. Signs are also posted indicating no trucks or trailers in the left lane. Deft. contended that he was traveling in the center lane when his tire had a blowout, causing his truck to swerve to the right. Deft. claimed that this presented an emergency situation that was unavoidable. Pltf. produced an eyewitness to the accident who was driving a truck approximately l00 yards behind Pltf. and Deft., who testified that Deft.’s tire looked as though it blew after the impact. Pltf. was able to qualify the eyewitness as an expert in trucking and hauling. After the accident, the eyewitness looked at the truck’s tire, which had a slash in it, and opined that the slash was caused on impact rather than a blowout.
Injuries: tom rotator cuff, requiring arthroscopic surgery. Demonstrative evidence: photographs of Pltf.’s vehicle and posted signs on the Expwy. No offer; demand: $500,000. Carrier: Hartford Insurance.
Jenna O. v. Jennifer Zoeller, John Nolan, and D.L. Peterson Trust 032208/93 3-week trial
Verdict 2/26/98 Nassau Supreme.
Judge: Allan L. Winick
Verdict: $1,220,000 v. Nolan and D.L. Peterson (5/I). Breakdown: $100,000 for past pain and suffering; $250,000 for future pain and suffering; $120,000 for future lost earnings; $0 for future household services; $750,000 for future medical expenses. Deft. Zoeller was let out of trial after the liability verdict. Jury: 3 male, 3 female.
Pltf. Atty: Daniel P. Buttafuoco of Daniel Buttafuoco & Assoc.,Woodbury.
Deft. Atty: Christine M. Laubis of Robert P. Sweeney & Assoc., Uniondale, for Zoeller on liability.
Michael F.X. Manning, Garden City, for Nolan and D. L. Peterson Trust.
Facts: This motor vehicle accident took place on 7/1/93 at the intersection of Rte. 110 and Bayliss Rd. in Melville. Pltf., an 18-year-old student, was employed for the summer as a bank clerk. She was a front-seat passenger in a vehicle driven by Deft. Zoeller (dismissed after liability trial), that was traveling south in the center lane of Rte. 110. Deft. Nolan (100% liable along with D.L. Peterson) was traveling east on Bayliss Rd. in a vehicle owned by Deft. D.L. Peterson Trust and leased to his employer. Both parties claimed that they had a green light. An independent eyewitness who was standing on the sidewalk on Bayliss Rd. testified that Nolan had a red light.
Injuries: bilateral chondromalacia with patellar malalignment. Pltf.’s physicians testified that the malalignment was pre-existing, but was activated by the trauma to both knees. Pltf. had received no medical treatment for the malalignment prior to the accident. From the time of the accident to the time of trial, Pltf. had undergone arthroscopic surgery on both knees, and had undergone approximately 18 months of physical therapy. She claimed that she has difficulty walking without pain. Pltf.’s experts testified that Pltf. will need lifelong
physical therapy on an as-needed basis, and opined that she would need future knee surgery. They testified that her injuries are permanent. Pltf. testified that she is a former amateur dancer and had appeared in numerous productions since the age of 4, but due to her injuries, is no longer able to dance. Defts. disputed the extent of and causal connection between the accident and Pltf.’s injuries, and argued that they were pre-existing and the result of dancing. Deft.’s orthopedic expert disputed the need for future surgery, and Deft.’s expert neurologist argued that a neurological exam was normal. Defts. introduced a surveillance video showing Pltf. walking without any observable problems. Additional surveillance video clips showing Pltf. walking up stairs and shopping without any observable problems were precluded from evidence based on Deft.’s failure to disclose them in discovery. Defts. had to rely solely on their investigator’s testimony for this evidence. Demonstrative evidence: anatomical model of the knee; chart showing a bar graph of Pltf.’s medical treatment; video of Pltf. in pre-accident dance productions. Offer: $300,000; demand: $750,000. Jury deliberation: 1 and 1/2 days. Carrier: Travelers/Aetna for Nolan and D.L. Peterson Trust.
Pltf. Experts: Dr. Ali Guy, physiatrist, Manhattan; Dr. Ronald Grelsamer, orth. surg., Manhattan.
Deft. Experts: Dr. William Healy, orth. surg., Huntington; Dr. Frederic Mortati, neurologist, Huntington.
Jeanine M. v. R.J.R. Nabisco, Inc. and Melville Krivoshey 108994/94 5-day trial Verdict 3/27/96 Judge Louise Gruner-Gans, New York Supreme.
VERDICT: $120,600, reduced to $102,510 for 15% comparative negligence of Pltf. (6/0). Breakdown: $30,000 for past pain and suffering; $36,000 for future pain and suffering; $54,600 for future chiropractic and psychological treatment. Jury: 4 male, 2 female.
Pltf. Atty: Daniel P. Buttafuoco, Mineola.
Deft. Atty: Roger P. McTieman, Jr. of Barry, McTieman & Moore, Manhattan.
Facts: The accident occurred on 12/2/93 on the service road of the Long Island Expwy. in Plainview. Pltf., a 23-year-old direct care counselor, claimed that she was proceeding through an intersection when Deft.’s vehicle struck the rear quarter panel of her car. Pltf. argued that Deft. should have seen her approaching the road before pulling into the intersection. Deft. argued that his view of Pltf. was obscured by a dip and curve in the road. He also argued that Pltf. was speeding at the time. The accident was not reported to the police.
Injuries: soft tissue injuries to the neck and back; concussion with post-concussion headaches; psychological injuries. Pltf. went straight to work after the accident. She testified that she experienced dizziness later that day and her boyfriend took her to the hospital where she was diagnosed with whiplash injury. Pltf. returned to the emergency room 2 days later with complaints of difficulties waking up, and she was admitted for 8 days for neurological monitoring and testing. Pltf.’s neurologist conducted extensive tests, including a CA T scan, an MRI, and an EEG, all of which were normal. Pltf.’s chiropractor testified that she will require one chiropractic treatment a week for the rest of her life. Deft. contested the causality of the psychological injuries, arguing that Pltf. had prior traumatic episodes in her life that could cause psychological problems. She had been raped when she was 8 and again when she was 20 years old, and her grandmother had died of cancer while she cared for her. Deft.’s expert testified that Pltf. had a normal neurological examination. Deft.’s expert testified that the injuries were minor and had resolved. Deft. was granted a missing witness charge for Pltf.’s failure to produce her treating neurologist. Demonstrative evidence: modelofthe spine; diagram of the accident; photographs of Pltf. ‘s car and scene. Offer: $10,000; demand: $150,000; amount asked of jury: $ 450,000. Jury deliberation: 3 and 1/2 hours.
Pltf. Experts: Dr. James Brostowin, chiropractor, Wantagh; Dr. Jan Burte, psychologist. Deft. Expert: Dr. George DiGiacinto, neurosurgeon, Manhattan.
KNEE INJURIES bilateral chondromalacia 18-year-old woman injured in automobile accident awards of future medical expenses of $750,000 and future lost earnings of $120,000 were excessive trial court’s reductions of those amounts to $5,000 and $50,000, respectively, left plaintiff with inadequate award second department orders increase to $120,000 and $100,000, respectively.
Appellate Division SECOND DEPARTMENT
O. v. Zoeller
9 JRD 82 O. v. Zoeller, N.Y.L.J., August 27, 1999, atp. 31, col.
(A.D. 2 Dept. 1999) (9 JRD 82).
Verdict or Lower Court Award: $1,220,000 v. Nolan and D.L. Peterson. Breakdown: $100,000 for past pain and suffering; $250,000 for future pain and suffering; $120,000 for future lost earnings; $0 for future household services; $750,000 for future medical expenses. Deft. Zoeller was let out of trial after the liability verdict. On post- trial motions, the trial court reduced the award for future medical expenses from $750,000 to $5,000 and the future lost earnings award from $120,000 to $50,000. Pltf. appealed. Trial Court: Nassau Supreme, Judge Alan L. Winick.
Appellate Result: Award for future medical expenses increased from $5,000 to $100,000; award for future lost earnings increased from $50,000 to $60,000; otherwise affirmed.
Discussion: This Second Department memorandum decision agreed with a trial court that two aspects of a jury verdict were excessive, but found the trial court’s reductions of those awards too drastic. The memorandum decision gives few of the facts upon which it is based. According to the report of the trial of this action in The New York Jury Verdict Reporter, Volume XV, Issue 37, Case 23, Pltf. was an 18-year- old student, then employed as a summer bank clerk, who suffered injuries in an automobile accident. The New York Jury Verdict Reporter describes her injuries as follows: bilateral chondromalacia with patellar malalignment. Pltf.’s physicians testified that the malalignment was pre-existing, but was activated by the trauma to both knees. Pltf. had received no medical treatment for the malalignment prior to the accident. From the time of the accident to the time of trial, Pltf. had undergone arthroscopic surgery on both knees, and had undergone approximately 18 months of physical therapy. She claimed that she has difficulty walking without pain. Pltf.’s experts testified that Pltf. will need lifelong physical therapy on an as-needed basis, and opined that she would need future knee surgery. They testified that her injuries are permanent. Pltf. testified that she is a former amateur dancer and had appeared in numerous productions since the age of 4, but due to her injuries, is no longer able to dance. Defts. disputed the extent of and causal connection between the accident and Pltf.’s injuries, and argued that they were pre- existing and the result of dancing. Deft.’s orthopedic expert disputed the need for future surgery, and Deft.’s expert neurologist argued that a neurological exam was normal. Defts. introduced a surveillance video showing Pltf. walking without any observable problems. On post-trial motions, the trial court reduced the $750,000 award for future medical expenses to $5,000, and the $120,000 future lost earnings award to $50,000. Pltf. appealed.
With little discussion, the Second Department panel agreed that the awards rendered by the jury were excessive, but increased the future medical expenses award to $100,000 and the future lost earnings award to $60,000.
Attorneys: The attorneys are not mentioned in the opinion. Our research indicates that the following were the attorneys for the trial of this action: Daniel P. Buttafuoco of Daniel Buttafuoco & Assoc., Woodbury, for Pltf. Christine M. Laubis of Robert P. Sweeney & Assoc., Uniondale, for Zoeller on liability; Michael F .X. Manning, Garden City, for Nolan and D.L. Peterson Trust.
Christina W. v. Alberto Javier Padron and Nassau Home Appliance and Bath Center 18642/91 5-day trial Verdict 1/17/95 Judge Edward G. McCabe, Nassau Supreme.
VERDICT: $188,000, reduced to $133,480 for 29% comparative negligence of Pltf. (6/0). Breakdown: $46,000 for past pain and suffering; $142,000 for future pain and suffering. Post-trial motions were denied. Jury: 3 male, 3 female.
Pltf. Atty: Edward J. Nitkewicz of Daniel P. Buttafuoco & Associates, Mineola.
Deft. Atty: Joseph C. Bellard of Marshall & Bellard, Garden City.
Facts: Pltf., age 34 at the time,claimed that on 5/10/90 at approximately 2 PM she was stopped at a red light at the merging intersection of Wantagh Ave. and Hicksville Rd. in Bethpage. She was facing northeast on Wantagh Ave. towards the merge with Hicksville Rd., and claimed that when the light turned green, Deft. Padron, traveling southbound on Hicksville Rd., went through the red light and hit her car. Deft.’s car was owned by Nassau Home Appliance. Pltf. produced an independent witness in another vehicle at the intersection who corroborated her testimony. Deft. Padron was precluded from testifying for failing to appear at his EBT. Deft. argued that Pltf. failed to look to her left prior to entering the intersection.
Injuries: cervical sprain with radiculopathy; torn anterior glenoid labrum of the right (dominant) shoulder requiring arthroscopic surgery. Pltf.’s surgeon testified that the shoulder injury was initially under-evaluated, but that it was causally related to the motor vehicle accident. He testified that cervical injuries can often mask the source of pain actually caused by a shoulder injury. The surgery was performed on the shoulder 1 year after the accident.
Deft. contested the injuries, arguing that Pltf. did not sustain any disability of the shoulder or neck. Pltf. had cerebral palsy which affected her lower limbs and required the use of a cane. Deft. testified that a disability was found subsequent to the shoulder surgery, but attributed it to the chronic cane use. Pltf.’s expert argued that the shoulder was asymptomatic prior to the accident and that the cane use would not damage the labium anteriorly. Demonstrative evidence: photographs of the vehicles and accident location; diagrams of the shoulder; model of the shoulder. Offer: $25,000; demand: $250,000; amount asked of jury: $500,000. Jury deliberation: 1 and 1/2 hours.
Pltf. Expert: Dr. Hank Ross, orth. surg., Mineola.
Deft. Expert: Dr. Frank Hudak, orth. surg., Syosset.
SETTLEMENT : Thomas and Rosetta C. v. Blair Transport, Inc. 12856/95 Date of Settlement 10/97 Queens Supreme.
Pltf. Atty: Mark T. Freeley of Daniel P. Buttafuoco, Woodbury.
This action settled prior to trial for a total of $375,000. On 9/30/94, Pltfs. were stopped in traffic to detour offI – 84 in the Town of Deer Park due to road construction. Deft.’s tractor-trailer was driving down the road and was unable to slow down, hitting 13 vehicles. Pltfs. argued that Deft. was not paying attention, was driving too fast, and did not apply the brakes in ample time. Deft. argued that he acted reasonably under the circumstances and that he was faced with an emergency situation.
Injuries: Thomas (51-year-old elevator mechanic) compression fracture at T -11; slight hearing loss. Deft. would have argued that the hearing loss was not related to the accident. Rosetta (52-year-old hospital secretary) bilateral torn medial meniscus requiring arthroscopic surgery; bilateral torn posterior horn; torn left medial patellar retinaculum; left thigh seroma requiring aspiration. Pltf. was unable to return to work. Deft. would have argued that Pltf. only suffered residual pain on motion. Settlement apportionment: $100,000 was paid to Thomas; $275,000 was paid to Rosetta. Carrier: Progressive.
Case Type: Bicycle, Motor Vehicle – Hit and Run, Motor Vehicle – Driver Fatigue
Case: Thomas M., Susan S. & USAA as Subrogee of Thomas E. M. v. Joseph Martin, Jan B. Warner, Augie’s Baked Products Inc. and Modern Italian Bakery of West Babylon, Inc., Augustino Moronese and Augie’s Distribution Corp., No. 26620/00
Venue: Suffolk Supreme, NY- Judge: Edward D. Burke- Date: 09-09-2005
PLAINTIFF(S) Attorney: Daniel P. Buttafuoco; Daniel P. Buttafuoco & Associates; Woodbury, NY, for Thomas M. , James S. McCarthy; Daniel P. Buttafuoco & Associates; Woodbury, NY, for Thomas M., Expert: None
DEFENDANT(S) Attorney: Carolyn S. Rankin; Lawrence N. Rogak L.L.C.; Oceanside, NY, for Augie’s Baked Products Inc., Modern Italian Bakery of West Babylon Inc. None reported for Joseph Martin, Modern Italian Bakery of West Babylon Inc., Jan B. Warner, Expert: None
Insurer:Liberty Mutual Insurance Co. for Modern Italian Bakery of West Babylon
Facts: At about 6:30 a.m. on July 6, 2000, plaintiff Thomas M., 55, the founder and owner of a tool-supply company, was bicycling on Sound Avenue, in Suffolk County. He was struck by a bread-delivery truck that as traveling in the same direction. The truck’s operator continued driving and was not immediately identified. M. sustained chest, head, lung, neck and spleen injuries. M. sued the truck’s driver, Joseph Martin; the truck’s registered owner, Jan Warner; the previous owner of Martin’s bread-delivery route, Augie’s Baked Products Inc.; that company’s supplier, Modern Italian Bakery of West Babylon Inc.; and two related entities who were not pursued. M. alleged that Martin was negligent in the operation of his vehicle, that Warner was vicariously liable for Martin’s actions and that the remaining defendants were liable because the accident occurred while Martin was acting as their agent.
Counsel for Augie’s Baked Products and Modern Italian Bakery of West Babylon moved for pretrial summary judgment of liability. The motion was granted, but M.’s counsel appealed. The appellate division, Second Department, reversed. It found that a jury had to weigh the issues of employment and employer liability. Prior to the trial, M. and Modern Italian Bakery of West Babylon agreed to a settlement. Modern Italian Bakery of West Babylon’s insurer agreed to contribute $300,000 from its $1 million policy. The matter proceeded to a trial against the remaining defendants.
Martin conceded that the accident occurred because he fell asleep while driving, but he contended that he was not initially aware that his truck had struck M. He claimed that he did not see M. and that, as such, he erroneously concluded that the truck had struck a sign. Augie’s Baked Product’s counsel contended that Martin’s contract specified that Martin was an independent contractor–not an employee of the company. She noted that Martin’s girlfriend, Warner, was the registered owner of Martin’s truck, and that the truck’s exterior did not bear a logo or a business name. She also contended that Martin paid for his own insurance, gas and tolls, that he had authority to change bread orders and prices, that he had authority to add and subtract customers and that his wages were recorded on a 1099 tax form–not a W-2 form.
Injury: The trial was bifurcated, so damages were not before the court. M. became comatose. He was placed in an ambulance and transported to Stony Brook [N.Y.] University Hospital, where doctors determined that he had sustained a head injury, a traumatic brain injury, a transverse-process fracture of his spine’s C6 vertebra, multiple rib fractures and a laceration of his spleen. The rib fractures created a pneumothorax, which is an air or gas buildup that occupies the pleural cavity.
M. underwent a tracheostomy, with implantation of a chest tube. He also underwent dialysis. His coma lasted three months. On Sept. 19, 2000, he was transferred to Moss Rehabilitation Hospital, in Philadelphia.
M. claimed that his pre-accident physical condition was excellent and that he could run a five-minute mile. He contended that he had almost regained full physical functioning, but that he suffers residual brain-function and cognitive deficits. M.’s medical expenses exceeded the limit of his no-fault insurance’s coverage. Thus, a $300,000 medical-expenses lien was pending. He sought recovery of the lien amount, his past and future lost wages, and damages for his past and future pain and suffering. His wife, Susan S., presented a loss-of-services claim.
Defense counsel did not contest M.’s injuries.
Verdict Information: The jury rendered a plaintiffs’ verdict. It found that Martin was an agent, servant and/or employee of Augie’s Baked Products.Prior to the scheduled start of the trial’s damages phase, the parties agreed to a $1.9 million settlement. Augie’s Baked Products’ insurer agreed to contribute the limit of its $1.5 million policy, and the insurer of Martin and Warner agreed to contribute the limit of its $100,000 policy. $300,000 was also paid by the bakery that had products inside Martin’s truck.