Martin + Colin, P.C. announced today a settlement for a driver who suffered personal injuries during a car crash in the State of Missouri. The out-of-state car accident victim, a Washington Heights (Manhattan) resident, was the driver of a rented automobile. The injured New Yorker called us to discuss his claim, and whether he should hire an attorney from New York for an out-of-state car accident claim. After our discussion, our client chose our firm to represent him in his car accident case. We immediately set out to protect our injured client’s rights and obtain for him the financial compensation he deserved. Today, we are pleased to report that, within one year of the accident, we were able to secure the other vehicle’s entire insurance policy as a settlement for our client.
CAR ACCIDENT FACTS
One early morning in 2016, our client drove through Ferguson, Missouri to return his rented car to the local office of a national car rental corporation, and then catch a ride to the airport to come back home to New York City. Our client waited in the left hand lane, with his blinker on, waiting to turn left into the car rental return location. Suddenly and unexpectedly, another vehicle slammed into our client’s vehicle, completely destroying the rental vehicle and causing serious physical injuries to our client.
PHYSICAL INJURY AND MEDICAL TREATMENT FACTS
Our injured client went directly from the accident scene to St. Louis (Mo.) Medical Center by ambulance. His chief complaints at the hospital were pain in his head and back, and cuts to his face. An x-ray was performed at hospital, which showed no significant abnormalities. Our client was kept in the hospital overnight. Our injured client was discharged with instruction to follow up with an orthopedist if his pain did not improve or if he experienced an increase in symptoms.
As our injured client experienced persistent pain, he consulted with an orthopedist and a pain management specialist. He also received physical therapy. His complaints included: 1) aching, decreased range of motion, pain, spasms, and weakness of the lower back; and 2) severe headaches.
The orthopedic surgeon diagnosed lumbar strain, recommended modification of activities, heat treatment for the back, and an MRI of the lower spine region.
MRI IMAGING FACTS
Our injured client had an MRI and went for a follow up visit with the orthopedist to discuss the results. The MRI revealed a herniated disc.
PHYSICAL RECOVERY FACTS
Our injured client followed up with the orthopedist and continued physical therapy. Although his face and head injuries received during the car crash went away, the client continued to complain of pain to his back.
Our client was transported to the hospital by ambulance from the scene of the accident. In addition, he continued to treat for severe pain in his back. Our client never fully recovered from the accident. However, the only asset the other driver owned was a minimal liability insurance policy.
Based on the above, it was our position that our injured out-of-state car accident client was entitled to substantial money damages for his pain and suffering, which continue to the present day. The other driver only had a minimum insurance policy. Our injured client desired a fast settlement of the claim. He instructed the injury lawyers at Martin + Colin, P.C. to obtain the best result possible very quickly. In this situation, the best possible result was the entire policy. Within three months of the accident, we were able to settle the case to the satisfaction of the client.
CALL US NOW AT (914) 771 7711 AND LET US APPLY OUR EXPERTISE TO YOUR CASE.
Martin + Colin, P.C. announces the settlement of another personal injury car accident case. This time, the bodily injury car crash victim had been injured in a car accident on Purchase Street in the Town of Harrison.
In 2015, our client was a rear-seat passenger in a car traveling eastbound on Purchase Street when the driver lost control of the vehicle, slid off the road and struck a pole on the sidewalk with tremendous force. As a result of the accident, the car was a total loss.
Our physically injured client was taken by ambulance from the car crash location to Westchester Medical Center. At the Medical Center, the health professionals listened to his complaints, conducted their own tests, and concluded that our client suffered from: neck sprain, muscle spasm and torticollis, which translates as a “twisted neck.”
After release from the emergency room, our injured client continued to experience pain in his lower back and left leg. He received medical treatment and physical therapy for more than one full year. In addition to his complaints of plain, objective medical testing revealed a herniated disk at L5-S1 as well as left-sided lower extremity (i.e., L4, L5 and S1) radiculopathy. When rest, pain killers and physical therapy did not remove the pain, the injured passenger also received three epidural injections into his lumbar spine.
This could have turned into a relatively easy case for our firm to handle, because our client, as a rear-seat passenger, was completely free of responsibility for the accident, and his injuries were well documented. But as it always does, life gets in the way. Somehow, in the year immediately following the accident, our client was arrested for, charged with, and pleaded guilty to firing a loaded handgun at passengers in another car. For this crime, he served time in state prison and was on probation.
Obviously, this serious felony conviction made our car accident / personal injury case much more complicated. On the one hand: we believe that our client sustained a concussion in the accident, and we also believed that he may have also sustained a traumatic brain injury which might be the cause of his criminal behavior. In other words, the head injury from the car accident may have skewed his judgment and caused him to act uncharacteristically irrational. Thus, perhaps we could explain away his felonious conduct to the jury. On the other hand: it’s hard to convince a jury to give a pass to someone who fires a loaded gun at the passengers in a nearby automobile. Usually, it is just too much to ask of a Westchester jury.
The experienced car accident lawyers in our firm took this case to trial.
After our jury was selected, the trial judge negotiated a settlement to the case.
The injury lawyers at Martin + Colin, P.C. applied their expertise handling similar auto accident cases to resolve this case successfully.
As is often the case, our client preferred the certainty of settlement rather than the risk of trial.
We are experienced car accident and personal injury lawyers. Call us now at (914) 771 7711 and let us apply our expertise to your case.
Recently, we represented a driver who was injured when a new driver traveling in the opposite direction failed to yield, and instead made a left turn directly in front of our client’s vehicle, causing the two-car collision.
However, if someone traveling in the opposite direction makes a left turn directly in front of your vehicle, that other driver is responsible for the accident. Your vehicle has the right of way. That other driver should not have driven across your lane of traffic until after your vehicle has passed.
Here is an example of the motion we filed for a ruling, prior to the start of trial, that the driver of the other vehicle was solely responsible for the accident, and that our driver was entirely free of fault.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ——————————————————————-x EMILIO FERNANDEZ, Plaintiff, NOTICE OF MOTION FOR SUMMARY JUDGMENT –against–
MARTA TAVAREZ, Index No.: 043850/2017 Defendant. ——————————————————————-x
C O U N S E L O R S:
PLEASE TAKE NOTICE, that upon the annexed affidavit of EMILIO FERNANDEZ, sworn to on the 5th day of October, 2017, the affirmation of KATHERINE ORTIZ dated October 5, 2017, the exhibits attached thereto, and upon all the pleadings and proceedings heretofore had herein, the undersigned will move before this Court at a Central Compliance Part at the Courthouse located at 111 Dr. Martin Luther King Jr. Blvd., White Plains, New York 10601 on the 30th day of October, 2017 at 9:30 a.m. in the forenoon of that day or as soon thereafter as counsel can be heard:
For an order pursuant to CPLR Rule 3212 granting partial summary judgment in favor of Plaintiff and against Defendant, as to liability, for an award of costs, disbursements and reasonable attorney’s fees to abide this motion, and for such other and further relief as to this Court may seem just and proper.
The above-entitled action is for personal injuries. This action is on the trial calendar.
PLEASE TAKE FURTHER NOTICE that, pursuant to Section 2214(b) of the Civil Practice Law and Rules, all answering papers, if any, shall be served at least seven (7) days before the return date of this motion.
Dated: White Plains, New York October 5, 2017
MARTIN + COLIN, P.C. Attorneys for Plaintiff, Emilio Fernandez
_________________________ By: KATHERINE ORTIZ Office + Post Office Address: 44 Church Street White Plains, NY 10601 (914) 771-7711 phone (914) 206-3619 fax [email protected]
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ——————————————————————-x EMILIO FERNANDEZ, Plaintiff, AFFIRMATION IN SUPPORT
MARTA TAVAREZ, Index No.: 043850/2017 Defendant. ——————————————————————-x
KATHERINE ORTIZ, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury:
The law firm of MARTIN + COLIN, P.C. is the attorney of record for the plaintiff. As the deponent, I am thoroughly familiar with the facts and circumstances herein based upon my review of the contents of the plaintiff’s file maintained by this office.
I make this affirmation in support of plaintiff’s motion for partial summary judgment as to liability. The following exhibits are attached:
Exhibit “A”- Summons, Complaint, Answer, Bill of Particulars;
Exhibit “B”- Accident Report;
Exhibit “C”- Defendant MARTA TAVAREZ deposition transcript;
Exhibit “D”- Yuknek v Scavo, Supreme Court of the State of New York, County of Nassau (September 2003).
For all the reasons that follow, Plaintiff asks that this motion be granted in all respects.
The parties were involved in a two-car accident which caused Mr. Fernandez to suffer serious personal injuries. Plaintiff in this case, i.e., Mr. Fernandez, seeks reasonable and fair compensation for his serious personal injuries sustained as a result of the defendant’s negligent ownership and operation of a motor vehicle. In summary, defendant made a left turn into plaintiff’s vehicle while attempting to enter the Saw Mill River Parkway from Yonkers Avenue. See Accident Report attached hereto as Exhibit “B”. As a result of the accident, Plaintiff sustained serious injuries to his left shoulder, requiring surgery, as well as neck, back, head and knee pain.
The other driver in this two-car accident, MARTA TAVAREZ, testified that on October 12, 2014 she was driving her mother and aunt to their place of work (Ex. “C” p.9), and that she had only started driving approximately one month before the accident. (Ex. “C” p. 11). Defendant testified that she was traveling on Yonkers Avenue in the direction toward the Saw Mill River Parkway and was in the turn only lane with one vehicle ahead of her. (Ex. “C” p. 15). The driver of the offending vehicle testified that as she approached the intersection the light in her direction was green, that she saw the car in front of her turn, and that she followed the car ahead of her and turned right after them. (Ex. “C” p. 16). She offending driver testified that she did not see any vehicles in the opposite direction on the other side of the intersection. (Ex. “C” p. 16). The driver of the other vehicle testified that it was not dark outside, and that the sun was starting to come out. (Ex. “C” p. 16). She testified that at the intersection where the accident occurred the roadway was flat. (Ex. “C” p. 18). Defendant testified that as she approached the intersection she did not stop at all before she made the left turn towards the Saw Mill Parkway. (Ex. “C” p. 19). The other driver testified that when she observed the damage to the vehicles at the scene of the accident she observed the front of her vehicle was “crashed” and the driver’s side of the plaintiff’s vehicle was damaged. (Ex. “C” p. 23). She testified that she called 911 and told them that “I was making a left turn to go into the Saw Mill and that I collided with the other vehicle.” (Ex. “C” p. 24).
Proof that defendant’s vehicle came over to the wrong side of the road and caused damage makes out a prima facie case and puts upon the party responsible for the actions of that vehicle the burden of coming forward with an explanation. Lyons v. DeVore, 48 A.D.2d 943, 368 N.Y.S.2d 887 (3d Dept., 1975), affd 39 N.Y.2d 971, 387 N.Y.S.2d 108 (1976); Pfaffenbach v White Plains Exp. Corp., 17 N.Y.2d 132, 269 N.Y.S.2d 115 (1966); Fox v Lyte, 143 A.D.2d 390, 520 N.Y.S.2d 432 (2d Dept. 1988); Fagle v. Bell, 65 A.D.2d 887, 410 N.Y.S.2d 422 (3d Dept. 1978); Novis v Sheinkin, 60 A.D.2d 623, 400 N.Y.S.2d 161 (2d Dept. 1977); Bergeron v Hyer, 55 A.D.2d 417, 353 N.Y.S.2d 767 (4th 1977); Simmons v. Stiles, 43 A.D.2d 417, 353 N.Y.S.257 (3d Dept. 1974); Manzi v Grand Ave Cab Co., 42 A.D.2d 607, 345 N.Y.S.2d 120 (2d Dept. 1973); Lewis v. Rivers, 41 A.D.2d 667, 340 N.Y.S.2d 671 (2d Dept. 1973); Stafford v. Mussers Potato Chips, 39 A.D.2d 831, 333 N.Y.S.2d 139 (4th Dept. 1972).
Plaintiff is not required to anticipate that a vehicle, or that a portion of a vehicle, traveling on the opposite side of the road will cross over into oncoming traffic.
“A driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic. Such an event constitutes a classic emergency situation, thus implicating the “emergency doctrine” (see Lyons v. Rumpler, 254 A.D.2d 261, 262, 678 N.Y.S.2d 142; Williams v. Econ, 221 A.D.2d 429, 430, 633 N.Y.S.2d 392; Greifer v. Schneider, 215 A.D.2d 354, 356, 626 N.Y.S.2d 218; Gaeta v. Morgan, 178 A.D.2d 732, 734, 576 N.Y.S.2d 962; Moller v Lieber, 156 A.D.2d 434, 435, 548 N.Y.S.2d 552). “
The other driver violated Vehicle and Traffic Law §§ 1141 and 1163(a) when she made a left turn directly into the path of Plaintiff’s vehicle. The defendant was negligent in failing to see that which, under the circumstances, she should have seen and in crossing into the plaintiff’s lane of traffic when it was hazardous to do so. Yuknek v. Scavo, Supreme Court Nassau County (2003), attached hereto as Exhibit “D”, citing Russo v. Scibetti, 298 A.D.2d 514 (2d Dept 2002); Agin v Rehfeldt, 284 A.D.2d 352 (2d Dept. 2001); Stiles v. County of Dutchess, 278 A.D.2d 304 (2d Dept. 2000). Plaintiff, who had the right of way, was entitled to anticipate that the defendant would obey the traffic laws which required her to yield and to turn only when able to do so with reasonable safety, see Yuknek v. Scavo, supra citing Cenovski v. Lee, 266 A.D.2d 424 (2d Dept. 1999).
The other driver had a duty to see what was to be seen, namely, the plaintiff’s vehicle. Yuknek v Scavo, supra, citing Stiles v. County of Dutchess, supra, Zambrano v. Seok, 277 A.D.2d 312 (2d Dept. 2000). See also Hudson v. Goodwin, 272 A.D.2d 296 (2d Dept. 2000) and a driver is negligent where an accident occurs because he or she has failed to see that which through proper use of his or her senses he or she should have seen. Breslin v. Rudden, 291 A.D.2d 471 (2d Dept. 2002). In this case, defendant failed to see plaintiff’s approaching vehicle and failed to yield the right of way. Yuknek v. Scavo citing Szcotka v. Adler, 291 A.D.2d 444 (2d Dept. 2002).
Based on the above, partial summary judgment as to liability should be granted against defendant and in favor of plaintiff. Defendant’s first affirmative defendant, sounding in comparative fault and culpable conduct of the plaintiff must also be dismissed for the same reasons.
There has been no prior application made for the relief herein sought.
WHEREFORE, it is respectfully requested that this motion be granted in its entirety, and that such other and further relief be granted as to this Court seems just and proper, including the costs of this motion.
That’s it! It was a car accident caused by the other driver making a left hand turn across traffic immediately in front of our driver. As a result of the dangerous turn, a collision occurred and our driver suffered personal injuries. What happened after the motion was filed? The insurance company for the other driver settled the case!
The experienced accident lawyers at Martin + Colin, P.C. applied their combined expertise handling similar car crash cases and, at our client’s request, successfully convinced the other driver’s insurance company that a settlement was better than a ruling that the other driver was liable as a matter of law.
Our experienced personal injury and auto accident lawyers can be contacted by phone at (914) 771 7711 or online at martincolin.com If you have been hurt in an accident due to the negligence of another person or firm, Martin + Colin, P.C. may be able to help. Please call (914) 771 7711 or email using the ‘Contact Us’ form on this webpage.
Call us now at (914) 771 7711 and let us apply our expertise to your case.
Here is a sample motion in limine (i.e., immediately prior to trial) seeking rulings favorable to the plaintiff (i.e., the person who filed the lawsuit) before the jury starts hearing the evidence. Hope it helps you!
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ————————————————-x FERNANDO COLON, Plaintiff, -against- CITY OF NEW YORK; et al., Defendants. ————————————————-x
PLAINTIFF’S MOTION IN LIMINE
Plaintiff respectfully submits this Memorandum of Law in support of his motions in limine. Specifically, plaintiff Fernando Colon respectfully submits this motion pursuant to the Federal Rules of Evidence (“FRE”) to preclude any reference to: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.
STATEMENT OF FACTS
This case arises from an incident which took place on June 24, 2011. On that date, at approximately 6:45 p.m., plaintiff Fernando Colon was parked and sitting inside his vehicle in the vicinity of 945 St. Nicholas Avenue, New York, New York.
After an individual named Bobby Lee entered plaintiff’s vehicle, police officers arrived and ordered the individuals in the car to exit. Detective Tisdale approached the vehicle, in civilian clothes, with his firearm drawn. After Det. Tisdale approached with gun drawn, he pulled the individuals out of the vehicle, handcuffed them, and made them wait outside the vehicle, near the curb. The area is a heavily populated, urban, mixed residential and commercial area. Mr. Colon did business in the area.
Det. Tisdale returned to the vehicle and looked inside. He claims he then smelled marijuana. He searched the front passenger compartment and discovered nothing; he searched the rear passenger compartment and, when he opened the closed compartment that held the folding rear seat Detective Tisdale discovered a sealed glass jar; inside the jar he observed a sealed and wrapped ziplock bag; inside the bag he observed marijuana. He then continued to search, and opened the other rear seat compartment and discovered approximately $20,000 in cash.
The plaintiff was arrested. The next day, Det. Tisdale sought and obtained a search warrant for plaintiff’s vehicle. A search of the vehicle, pursuant to the warrant, uncovered nothing. The criminal case against plaintiff was dismissed on November 10, 2011, on speedy trial grounds. Plaintiff’s money and van were not returned to him until January 2012.
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 (1984)(explaining that the motion in limine is used to “exclude anticipated prejudicial evidence before the evidence is actually offered”). See also Palmieri v Defaria, 88 F.3d 136, 141 (2d Cir. 1996)(‘The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.”).
As an initial matter, evidence must be “relevant” to be admissible. Fed. R. Evid. 402. The Federal Rules of Evidence define “relevant” evidence as that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” Fed. R. Evid., 401. Further, Federal Rule of Evidence 403 grants a district court discretion to exclude even relevant evidence on the grounds of prejudice, confusion, or waste of time:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed R. Evid. 403.
Thus, to be admissible, evidence must be both (1) relevant and (2) not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Fed. R. Evid. 402 and 403. Further, Rule 404(b) states, in relevant part, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).
PLAINTIFF’S PRIOR ARREST SHOULD BE EXCLUDED BECAUSE IT IS IRRELEVANT AND UNDULY PREJUDICIAL
Defendant should be precluded from any reference to plaintiff’s prior arrest. Plaintiff’s prior arrest when he was seventeen (17) years old (approx. 1999) is of minimal probative value and is unduly prejudicial given, inter alia, the length of time between the arrest and the events underlying this claim. It should be inadmissible for any purpose. See Fed. R. Evid. 404, 609(b).
DEFENDANTS SHOULD BE PRECLUDED FROM DELVING INTO NON-PARTY WITNESS BOBBY LEE’S CRIMINAL HISTORY
Defendants should be precluded from asking questions or presenting any evidence of Bobby Lee’s criminal history pursuant to Rules 401, 402 and 403 as totally irrelevant, will confuse the jury, is a waste of time and is unduly prejudicial.
At his deposition, Bobby Lee stated that he had three prior arrests that resulted in convictions, and that the first arrest occurred in either 2006 or 2007. These arrests are wholly irrelevant not only to this cause of action but to his recollection and credibility as a witness to the June 24, 2011 incident involving Detective Jerome Tisdale and the New York City Police Department.
Bobby Lee’s criminal history should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury…” Fed. R. Evid. 403. “In making a Rule 403 determination, courts should ask whether the evidence’s proper value “is more than matched by [the possibility]… that it will divert the jury from the facts which should control their verdict.” (internal citations omitted). Potenza v. City of New York, 2009 U.S. Dist. LEXIS 60877 (E.D.N.Y. July 15, 2009). Here, the prejudicial impact of Bobby Lee’s criminal history is far outweighed by any probative value that such evidence might have. Accordingly, the Court should preclude the defendants from introducing such evidence under Rule 403.
PERMIT PLAINTIFF TO TREAT ALL NYPD OFFICERS AS HOSTILE
Rule 611(c) provides that leading questions ordinarily should not be used on direct examination, except “when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” Fed. R. Evid. 611(c)(2). Plaintiff submits that Detective Tisdale’s testimony, as well as any other NYPD officer-witness will be adverse to Plaintiff, and therefore requests permission to treat him as hostile.
For the reasons stated above, plaintiff respectfully requests that the Court exclude: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.
Dated: White Plains, New York January 24, 2017
MARTIN + COLIN, P.C. Attorneys for Plaintiff
___S/_________________________ WILLIAM MARTIN Office + Post Office Address: 44 Church Street White Plains, New York 10601 (914) 771 7711
Martin + Colin, P.C. announces the successful refinance of an $1.1 Million commercial building in the Bronx, New York. The building is a standard commercial building containing, among other tenants: a pizzeria, a ribs and wings restaurant, a Chinese-style restaurant and a discount variety store. The owner sought refinancing because his commercial mortgage was coming due. The experienced real estate lawyers at Martin + Colin, P.C. were able to assist the owner in bringing the refinancing to a successful closing.
Our Expertise Saved the Client Money
Among other important provisions, the real estate closing attorneys at Martin + Colin, P.C. successfully negotiated a clause permitting the future assignment of the mortgage. Here’s the valuable clause:
Assignment of Mortgage. Upon Borrower’s written request, Lender shall permit an assignment of this Mortgage upon repayment of the Loan in full in accordance with the terms of the Note provided that the Borrower pays Lender an assignment fee of 0.25% of the Loan Amount in furtherance of the assignment at the time of assignment.
What is the significance? Unlike home loans, commercial loans often last only five years. During the loan period, the borrower usually pays interest only. Thus, at the end of the five year loan period, the borrower will still owe $1.1 Million. The borrower will need to find another bank to lend him $1.1 Million for another five year loan period. When the borrower identifies that new lender, the closing is scheduled. Immediately after closing on the new loan, the new lender will want to record the new mortgage, at borrower’s expense. The recording tax on that new mortgage could add thousands of dollars to the borrower’s closing costs. However, because we negotiated the “Assignment of Mortgage” clause into the loan documents, the cost to the borrower to record the next mortgage for the next five year loan will be more like zero rather than several thousand dollars. That’s a big savings.
We Can Make Your Real Estate Transaction A Success
The experienced real estate lawyers at Martin + Colin, P.C. can apply their expertise and help you with your real estate transaction. Call us at (914) 771 7711.