Settlement for Driver in Out-of-State Car Accident – June 2017

Woman_Sitting_Beside_CarMartin + 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

Car Accident with Soft Tissue InjuryOur 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.

ORTHOPEDIC FACTS

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

Traumatic Brain InjuryOur 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.

DAMAGES SUMMARY

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.

SETTLEMENT

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.

Settlement for Port Chester Passenger Injured in Car Crash – May 2017

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.

 

Motion for Ruling that Our Driver Not Responsible for Car Accident – April 2017

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

Yours, etc.,

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

–against–

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:

  1. 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.
  2. 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.

  1. 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.
  2. 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).
  3. 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).
  4. 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). “

Gajjar v. Shah, 31 A.D.3d 377, 817, N.Y.S.2d 653 (Second Dept. 2006).

  1. 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).
  2. 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).
  3. 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.
  4. 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.

Dated: White Plains, New York
October 5, 2017

_______________________________________
KATHERINE ORTIZ

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.

in limine motionCall us now at (914) 771 7711 and let us apply our expertise to your case.

Bronx Auto Accident Case Settled One Year Later for Six Figures – March 2016

Martin + Colin, P.C. announces a settlement for a passenger who suffered personal injuries during a car accident on Baychester Avenue in The Bronx.  The car crash victim, a Bronx resident, was the front seat passenger in the automobile.  Our experienced car accident lawyers were hired within weeks of the crash.  We immediately set out to protect the injured passenger’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 a six figure settlement for our client.

Car Accident FactsCar Accident at Intersection

One night in August 2015, our client was a passenger in a vehicle traveling northbound on Baychester Avenue at or near the intersection of Givan Avenue.  The other driver crossed over the double yellow line and collided head on with the vehicle in which our client was a passenger.  The airbags deployed.

Physical Injury and Medical Treatment Facts

Our injured client went directly from the accident scene to Jacobi Medical Center by ambulance.  His chief complaints at the hospital were pain in his neck, lower back and chest.  A chest x-ray and EKG were performed at hospital, which showed no significant abnormalities.

Our injured client was discharged with a prescription for Motrin.  He was instructed to follow up with his primary care physician if his pain was not improving or if he experienced an increase in symptoms.

Orthopedic Facts

As our injured client experienced persistent pain, he consulted with an orthopedic surgeon.  His chief complaints were:  1) aching, decreased range of motion, numbness and tingling, pain, spasms, stiffness, weakness of the neck radiating to his right arm; 2) aching, decreased range of motion, pain, spasms, weakness of the low back radiating down the right thigh; and 3) aching, clicking, decreased range or motion, pain, stiffness, swelling of the right knee radiating up the right thigh.

The orthopedic surgeon diagnosed cervical and lumbar strain and radiculopathy, recommended modification of activities, heat treatment for the neck, back and knee, and an MRI of the right knee.

MRI Imaging FactsCar Accident Objective Testing

Our injured client had an MRI of his right knee performed and went for a follow up visit with the orthopedic surgeon to discuss the results.  The MRI revealed a tear of the posterior horn of the medial meniscus and medial retinacular sprain.  The orthopedic surgeon scheduled our injured client for right knee arthroscopic surgery.

Orthopedic Surgery Facts

The right knee arthroscopic surgery was performed at Saint Joseph’s Medical Center in Yonkers, New York.  The orthopedic surgeon performed a synovectomy and chondroplasty of the medial femoral condyle.  The surgeon’s post-operative diagnoses were: tear of the medial meniscus – partial – right, tear of the lateral meniscus – partial – right, synovitis-right, and chondromalacia medial femoral condyle-right.

Physical Recovery Facts

Our injured client followed up with the surgeon following the orthopedic procedure and began physical therapy.  Although his knee recovered from the car accident, the client continued to complain of pain to his neck and back with radiating symptoms.

Liability Summary

Here, our client, an injured passenger, was able to establish his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence showing that the defendant – driver violated Vehicle and Traffic Law § 1120 and 1128 by failing to exercise due care, failing to remain on the right side of the roadway, and failing to take adequate precautions to avoid colliding with the vehicle in which our client was a passenger.

Damages SummaryCar Accident with Soft Tissue Injury

Our client was transported to the hospital by ambulance from the scene of the accident.  Within six months he underwent surgery to his right knee and attended physical therapy to regain the use of his knee.  In addition, he continued to treat for severe pain in his neck and back.

Our client never fully recovered from the accident.  In addition, he treated continuously from the date of the accident.

Jury Appeal

To properly value a claim, it is essential to assess the amount of jury appeal our injured client would possess if the case goes to trial.  In this case, our injured client was a likeable person who would have great jury appeal, especially to a Bronx jury.  He was, after all, a mere passenger in the vehicle and therefore was completely free of fault in the happening of the car accident.  Our experienced personal injury attorneys estimated the full amount of our client’s damages, should the case proceed to trial, was in excess of $650,000.00 by the time of trial.  It was our contention that he suffered greatly, and would continue to suffer, as a result of the defendant’s careless driving.

Settlement

Based on the above, it was our position that our injured client was entitled to substantial money damages for his pain and suffering, which continue to the present day.  The defendant’s commercial vehicle carried several million dollars of insurance covering this type of accident.  Consequently, the offending vehicle’s third-party claims adjuster was interested in a prompt resolution of this claim.

Our injured client desired a fast settlement of the claim and instructed the injury lawyers at Martin + Colin, P.C. to obtain the best result possible very quickly.  Our client preferred his money in hand as soon as possible.  Within one year 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.Car Accident Law Firm Helpful Staff

Settlement for T-Bone Car Accident Victim on Taconic Parkway in Dutchess County – May 2016

Martin + Colin, P.C. announces a cash settlement for a driver injured in an automobile accident on the Taconic State Parkway in March 2013. The car accident victim, a Mahopac resident, was driving northbound on the Taconic State Parkway at the intersection of Pudding Street in Putnam Valley, New York.  The vehicle operated by the offending driver was traveling eastbound on Pudding Street, which had a stop sign at the intersection.  The driver of the offending vehicle failed to yield the right of way to our client’s vehicle.  The offending vehicle struck our client’s vehicle on the driver’s side with such force that our client’s vehicle was caused to spin and came to a stop off the road facing in the opposite direction.

As a result of the impact, the injured victim of the car crash sustained multiple injuries, including to his left knee, left leg, hip, back, right shoulder and elbow.  After the accident, the car accident victim went to Gleneida Medical Care complaining of left leg pain with weakness and radiation into the left low back, right shoulder and elbow pain, and second toe pain.  Our client informed the doctor that although he did have previous complaints regarding pain in his left leg prior to the accident, the pain before was not nearly as severe as the pain which he was experiencing after the accident.  The physician recommended a course of physical therapy and MRIs.

A treating doctor recommended that our client, who had sustained significant bodily injuries in the car accident, undergo an EMG of his upper extremities and continue to follow up with physical therapy treatment.  The physical therapy treatment helped relieve the injured driver’s pain, however he had to reduce the amount of hours he could work for his employer due to the pain in his neck and back. Despite all of the medical treatment and physical therapy, our client continued to feel pain in his neck and back as a result of the accident.

Bodily Injury Details…

Weeks after the accident, our injured client went for x-rays of his lumbar spine, left and right hips, and left and right knees.   

Soon after, our accident victim client went for an MRI of the Lumbar Spine, which revealed L2-L3 and L4-L5 disc bulges result in bilateral neural foramen stenosis with posterior facet arthropathy; L1-L2 6 mm (AP) broad-based right foraminal disc herniation superimposed upon a disc bulge, resulting in right greater than left neural foramen stenosis with posterior facet arthropathy; L3-L4 6 mm (AP) broad-based right foraminal disc herniation superimposed upon a disc bulge, resulting in mild central canal and right greater than left neural foramen stenosis with posterior facet arthropathy;  L5-S1 6 mm (AP) broad-based left foraminal disc herniation superimposed upon a disc bulge, resulting in left greater than right neural foramen stenosis with posterior facet anthropathy; and evidence of impingement upon the left-sided exiting L5 nerve roots.

About six months after the accident, our injured client went for an MRI of his left knee at Greater Northeast Radiology Associates, P.C., Open MRI of Yorktown.  The radiologist’s review of the images revealed advanced medical compartment arthrosis with complete loss of articular cartilage subchondral sclerosis and subchondral edema; extensive tear throughout the medial meniscus as described above with a displaced meniscal fragment extending to the intercondylar notch; and severe mucinous degeneration within the anterior cruciate ligament with an associated large multiseptated ganglion cyst.

Separately, we obtained copies of the left knee images and sent them to our own consulting radiologist for his professional opinion.  Our radiologist found a prominent joint effusion seen on T2 weighted sagittal images.  The medial meniscus was amputated leaving a small remnant posteriorly.  There was lateral displacement to medial collateral ligament.  The anterior cruciate ligament was torn from its origin.  There was bone marrow edema involving the medial tibial plateau.  Our radiologist also opined that these changes were related to traumatic injury and directly related to the t-bone car accident in March 2013, that the symptoms may worsen and eventually result in knee replacement surgery.

Unrelated to the accident, our client developed a cardiovascular disease and pulmonary disease following the accident, for which he was prescribed blood thinners.  He had to undergo four blood transfusions and was hospitalized for his condition at least six (6) times and had to have a stent placed in his artery.  As a result, our car crash victim could not undergo surgery related to the car accident as soon as the doctor had wanted him to due to the blood thinners.  He had to be completely off the blood thinners for a certain amount of time before he could be cleared by his doctor for surgery.  Thus, the surgery to repair the car accident injuries was delayed.  All the while, our client continued to experience excruciating pain in his knee while he waited.  He received trigger point injections and physical therapy to attempt to alleviate the pain, but they did not help.

Our injured client’s cardiologist granted him permission to discontinue taking the blood thinning medication for the requisite time period, and in December 2014, almost two years after the accident, our car accident victim underwent surgery to his left knee.  The arthroscopic surgery was performed by an outstanding surgeon at St. Joseph’s Medical Center.  The orthopedic surgeon’s post-operative diagnoses were: (a) tear medial meniscus- left; (b) tear lateral meniscus- left; (c) synovitis- left; (d) chondromalacia, medial femoral condyle- left; (e) chondromalacia, medial tibial plateau- left; and (f) chondromalacia, patella- left.  After knee surgery, our client followed up with physical therapy from December 2014 through February 2015.

The injuries that our client sustained in the March 2013 accident changed his life drastically.  Prior to the accident, our injured driver was a pharmacist who truly loved going to work each day.  He developed relationships with his customers and wanted to be there for them every day to answer their questions.  The nature of his employment required that he be on his feet and moving around the pharmacy for hours each day.  As a result of the injuries he sustained, our car crash victim was physically unable to perform the tasks of his employment anymore.  Being forced into early retirement was truly devastating for our client, who had planned on working for many more years.  Not only has this effected his livelihood, but also his emotional wellbeing.

The injuries he sustained also put a strain on his relationship with his grandchildren.  Prior to the accident, our client used to take his granddaughter to the ballet.  However, the pain in his knee prohibited him from standing, walking, taking stairs, and made outings with his grandchildren much too difficult.  As a result, his personal relationships suffered.

Based on all the factors cited above, it was our position that the our injured plainitff was entitled to damages for his pain and suffering, loss of income and loss of enjoyment of life which continued. Jury verdicts for similar damages can exceed $300,000.00.

The insurance company for the offending vehicle acknowledged responsibility for the accident and acknowledged that the accident forced our client into an early retirement.  However, the insurance company challenged the significance of our client’s bodily injuries, and claimed that any injuries that he had all pre-dated the accident. 

Nevertheless, the lawyers at our firm negotiated a settlement satisfactory to our client.

The experienced personal injury and auto accident lawyers can be contacted by phone at (914) 771 7711 or online at martincolin.com 

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 an unfavorable jury verdict.

 

The injury attorneys at Martin + Colin, P.C., headquartered in White Plains, handle accident claims, negligence and personal injury cases. 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.

 

Fourth Amendment – Improper Stop, Unlawful Detention

Civil Rights Law – 42 U.S.C. 1983 – Fourth Amendment – Search and Seizure – May 2016

Part 3 of 3

Here is the decision and order of the federal court.  The facts were set forth in our first post in the series (read here…).  The legal arguments were set forth in our second post in the series (read here…)  This is our final post in this sample of federal civil rights litigation arising out of a false arrest by police officers.  Here is that portion of the decision and order of the federal court judge which declared that the police action constituted false arrest and unlawful detention of our client.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
——————————————————————-X

FERNANDO COLON,

               Plaintiff,

     -against-                                          DECISION AND ORDER

CITY OF NEW YORK, et al.,

               Defendants.
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STANDARD

A court reviews motions for judgment on the pleadings pursuant to Rule12(c) of the Federal Rules of Civil Procedure under the same standard as motions to dismiss pursuant to Rule 12(b)(6). Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010).  “To survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”  Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).  The Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the nonmoving party. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).  A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).  Rule 8 of the Federal Rules of Civil Procedure “requires factual allegations that are sufficient to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied, 133 S. Ct. 846 (2013) (quoting Twombly, 550 U.S. at 555).

The standard for summary judgment is well established. Summary judgment is appropriate where the record before the court establishes that there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).  The Court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008).  A motion for summary judgment should be denied “if the evidence is such that a reasonable jury could return a verdict” in favor of the nonmoving party.  NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178-79 (2d Cir. 2008).  Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

DISCUSSION

I.                False Arrest, Detention & Confinement (Counts I, II & V)

All parties move for summary judgment on Plaintiff’s false arrest, detention and confinement claims.  Summary judgment is granted for Plaintiff with respect to his detention prior to Defendant Tisdale’s discovery of marijuana, and for Defendants with respect to Plaintiff’s detention thereafter.

A.             Plaintiff’s Detention Before the Discovery of Marijuana

Defendant Tisdale’s conduct in handcuffing and detaining Plaintiff before discovering marijuana violated the Fourth and Fourteenth Amendments and is not entitled to qualified immunity.

In the absence of probable cause to arrest, “Terry v. Ohio [, 392 U.S. 1 (1968),] and Michigan v. Summers [, 452 U.S. 692 (1981),] provide distinct standards for reasonable stops . . . .” United States v. Bailey, 743 F.3d 322, 334 (2d Cir. 2014) (“Bailey V”).  A Terry stop “require[s] reasonable suspicion of criminal conduct beyond proximity to a location of suspected crime,” and a Summers detention “require[s] spatial proximity to the premises to be searched without regard to reasonable suspicion.” Id.

1.     Terry Analysis

A Terry stop is justified if an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).  Reasonable suspicion requires more than a “hunch.”  Terry, 392 U.S. at 27.  It demands “specific and articulable facts which, taken together with rational inferences from those facts,” id. at 21, provide detaining officers with a “particularized and objective basis for suspecting wrongdoing,” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted).

Even viewing the record in the light most favorable to Defendants, there could not have been the reasonable suspicion necessary to stop Plaintiff pursuant to Terry in the first instance.  First, when Plaintiff was initially detained, the only fact connecting him to any possible criminal activity was that Evans, the person associated with the apartment being searched, had just entered the minivan in which Plaintiff was sitting.  However, Defendant Tisdale admitted that he knew, upon approaching the vehicle, that the individual seated in the back was the person connected to the apartment being searched, and therefore that Plaintiff was not that person.

Defendant Tisdale also admitted that he did not believe that Evans was involved in illegal activity at the time.  In light of these admissions, any nexus between Plaintiff and Evans was insufficient to permit Defendant Tisdale to order Plaintiff out of a parked vehicle at gunpoint and immediately handcuff him.  Although “[t]he [reasonable suspicion] standard is not high,” Bailey V, 743 F.3d at 332 (internal quotation marks omitted), it is not satisfied on these facts, and Plaintiff’s detention cannot be justified by Terry.

2.     Summers Analysis

Under Summers, a detention incident to search is constitutional only if “limit[ed] . . . to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant.” Bailey v. United States, 133 S. Ct. 1031, 1042 (2013) (“Bailey IV”).  In determining whether an occupant was lawfully detained within such “immediate vicinity” of the premises to be searched, courts may consider “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id.  Here, nothing in the record suggests – and Defendants do not claim – that Plaintiff was an occupant of the searched apartment at any relevant time, had any intention of entering it or otherwise had any connection to it.  Moreover, Plaintiff was inside a vehicle that was “[a]round the block” from the apartment according to Defendant Tisdale, not within the line of sight, and access to the apartment presumably would have required passage through at least one if not two doors.  These facts are far from satisfying the Summers standard, and could not have justified Plaintiff’s initial detention as effected incident to the search of the apartment.

3.               Qualified Immunity

Qualified immunity is an affirmative defense for which defendants have the burden of proof.  See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).  An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2080 (2011).  A defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite for any reasonable official in the defendant’s shoes to understand that he was violating it. Id. at 2083-84.  “In other words, existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal quotation marks omitted).  “[T]he salient question . . . is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (alterations in original) (internal quotation marks omitted).  The “dispositive inquiry . . . is whether it would [have been] clear to a reasonable officer in the agents’ position that [their] conduct was unlawful in the situation [they] confronted.” Wood v. Moss, 134 S. Ct. 2056, 2059 (2014) (alterations in original) (internal quotation marks omitted).  “[I]f . . . officers of reasonable competence could disagree . . . , immunity should be recognized.” Hope v. Pelzer, 536 U.S. 730, 752 (2002) (internal quotation marks omitted).  Whether a clearly established right existed must be considered “in light of the specific context of the case, not as a broad general proposition.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (internal quotation marks omitted).

Qualified immunity does not save Defendant Tisdale from liability for Plaintiff’s unlawful initial detention. First, as discussed above, the record contains no evidence tending to show that Defendant Tisdale had any individualized suspicion about Plaintiff, whether reasonable or unreasonable. Thus, there is no factual basis upon which to base a finding of qualified immunity for Defendant Tisdale under Terry.

Second, with respect to Summers, the relevant Supreme Court jurisprudence is grounded in the premise that those who may be subject to detentions incident to search are occupants of the searched premises.  452 U.S. at 701-05.  This occupancy nexus is relevant to each of the three law enforcement interests underpinning the Summers detention: (1) “minimizing the risk of harm to the officers” conducting the search, id. at 702; (2) “the orderly completion of the search,” which “may be facilitated if the occupants of the premises are present,” id. at 703; and (3) “preventing flight in the event that incriminating evidence is found,” id. at 702; see also Bailey IV, 133 S. Ct. at 1038-1041 (elaborating on the three law enforcement interests underpinning a Summers detention).  The Supreme Court has never departed from the occupancy requirement, including in its two cases revisiting Summers that had been decided at the time of Plaintiff’s 2011 detention. See Los Angeles Cnty. v. Rettele, 550 U.S. 609 (2007) (finding that the detention of individuals found on the premises at the time of the search was constitutional pursuant to Summers); Muehler v. Mena, 544 U.S. 93 (2005) (same).  Although some courts have found constitutional the detention of individuals who were leaving the premises to be searched, each case involved someone who had just occupied the premises when the officers arrived to execute a search.  See Summers, 452 U.S. at 693 & n.1 (upholding the detention of an individual as he exited the front door of the premises and descended the porch steps); see also United States v. Fullwood, 86 F.3d 27, 29-30 (2d Cir. 1996) (upholding the detention of an individual found outside the premises and about to enter his vehicle); United States v. Bailey, 468 F. Supp. 2d 373, 376 (E.D.N.Y. 2006) (“Bailey I”) (upholding the detention of two individuals after they exited the relevant premises and drove for one mile), aff’d, No. 06 Cr. 232, 2010 WL 277069 (E.D.N.Y. Jan. 19, 2010) (“Bailey II”), aff’d, 652 F.3d 197 (2d Cir. 2011), rev’d, 133 S. Ct. 1031, aff’d, 743 F.3d 322 (2d Cir. 2014). Even in Bailey, the case most heavily relied upon by Defendants on the qualified immunity issue,4 the district court stated that officers needed at minimum a “reasonable basis to believe that the person [to be detained] has just left or is about to enter the location to be searched.” Bailey II, 2010 WL 277069, at *14. Thus, in 2011, at the time of Plaintiff’s detention, the occupancy nexus was a clearly established prerequisite to the invocation of Summers.

Here, as discussed above, no evidence suggests that Defendant Tisdale believed or had grounds to believe that Plaintiff had any connection to the apartment that was being searched, let alone that Plaintiff had occupied or intended to occupy the apartment. In light of the clearly established requirement that detentions made pursuant to Summers be limited to the occupants of the premises to be searched, no reasonable officer could have believed that the detention of Plaintiff as he sat in a parked vehicle on another block was justified by Summers. Consequently, Defendant Tisdale is not entitled to qualified immunity under the Summers theory.

To the extent that Defendants could argue that Plaintiff’s initial detention was a reasonably necessary step to detaining Evans pursuant to Summers or Terry, that argument would fail. Even assuming that Defendant Tisdale is entitled to qualified immunity for the detention of Evans, that does not by itself justify the detention of Plaintiff. In United States v. Di Re, police arrested all three occupants of a car when a police informant in the backseat told the officers that the driver had sold him counterfeit coupons but said nothing about the passenger seated next to the driver. 332 U.S. 581, 583 (1948).  The Supreme Court ruled that the passenger’s arrest violated the Fourth Amendment because “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” Id. at 594; see also Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”). Cf. Maryland v. Pringle, 540 U.S. 366, 374 (2003) (finding that police had probable cause to arrest Pringle and two other occupants of a car because “[n]o such singling out occurred in this case”). Likewise here, the confidential informant had singled out Evans alone, and Defendant Tisdale had no information about Plaintiff except that he was with Evans in the car. Because it would have been clear to a reasonable officer in Defendant Tisdale’s position that “merely . . . sitting in the suspect’s vehicle when officers approached,” United States v. Delossantos, 536 F.3d 155, 160 (2d Cir. 2008), “do[es] not, without more, amount to probable cause,” id. at n.4, Defendant Tisdale is not entitled to qualified immunity for Plaintiff’s initial detention, even assuming he would be entitled to qualified immunity for Evans’s detention.

In light of the foregoing, summary judgment is granted in favor of Plaintiff for his unlawful detention before Defendant Tisdale’s discovery of marijuana.

B.        Plaintiff’s Detention After the Discovery of Marijuana

Plaintiff’s claims for false arrest and unlawful detention and confinement (Counts I, II, V) must be analyzed separately for the period after the officers discovered marijuana in Plaintiff’s vehicle. Because probable cause existed for the arrest, summary judgment is granted to Defendants on Counts I, II and V for the period after the discovery.

“‘In analyzing § 1983 claims for unconstitutional false arrest, [courts generally look] to the law of the state in which the arrest occurred.’” Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006) (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). In order to state a claim for false arrest or imprisonment under New York law, a plaintiff must show that: (1) the defendant intentionally confined the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise justified. See Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991).  Under New York law, “the existence of probable cause is an absolute defense to a false arrest claim.” Jaegly, 439 F.3d at 152.

“‘Probable cause to arrest exists when the arresting officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’”  Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)). “The inquiry is limited to ‘whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest.’”  Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting Jaegly, 439 F.3d at 153).

There is no dispute that Defendant Tisdale ordered Plaintiff and two other individuals out of Plaintiff’s vehicle, in which Defendant Tisdale then discovered marijuana.  That fact alone provides probable cause for Plaintiff’s arrest. See Abreu v. Romero, 466 F. App’x 24, 26 (2d Cir. 2012) (finding, in a New York case, that probable cause to arrest existed after officers found two ounces of marijuana in the plaintiff’s bedroom).

Plaintiff argues that the charge for which he was arrested – unlawful possession of marijuana in violation of New York Penal Law 221.05 – does not authorize law enforcement officers to effect custodial arrests.  With respect to the § 1983 false arrest claim, the Supreme Court in Virginia v. Moore, 553 U.S. 164 (2008), rejected the same argument.  In that case, the appellant argued that he was unlawfully arrested for the misdemeanor of driving on a suspended license because state law did not authorize the arrest. Id. at 167.  The Supreme Court found that the arrest was made with probable cause and did not violate the Fourth Amendment, even if the arrest was impermissible under state law. Id. at 178.  The Court held that “state restrictions do not alter the Fourth Amendment’s protections,” and that to hold otherwise would cause the Fourth Amendment to “vary from place to place and from time to time . . . .” Id. at 176 (internal quotation marks omitted).  Moreover, contrary to Plaintiff’s position, New York law authorizes arrest for the unlawful possession of marijuana in violation of New York Penal Law 221.05.  Under New York Criminal Procedure Law § 140.10, “a police officer may arrest a person for: (a) [a]ny offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence.”  An “offense” under § 140.10 is defined by New York Penal Law § 10.00(1) as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state . . . .” New York Penal Law § 221.05, under which Plaintiff was charged, expressly provides for punishment by a fine.  Plaintiff’s invocation of New York Criminal Procedure Law § 150.75 – requiring that “an appearance ticket shall promptly be issued and served upon” arrestees in connection with § 221.05 – does not change the fact that the unlawful possession of marijuana in violation of § 221.05 is an arrestable offense.  Consequently, Plaintiff’s argument fails with respect to his false arrest claims under both federal and state laws.

Plaintiff asks that the Court decline to follow Townes v. City of New York, in which the Second Circuit held that “[v]ictims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy . . . ; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution” – i.e., that the “fruit of the poisonous tree” doctrine does not apply in § 1983 actions. 176 F.3d 138, 148 (2d Cir. 1999).  Townes remains binding law in this circuit.  Thus, even assuming that the search of the vehicle that led to the discovery of marijuana was illegal, Plaintiff cannot recover for his arrest on that ground because the arrest was made with probable cause.

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