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.

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.

Traumatic Brain Injuries – An Introduction

Today we begin our 2015 series of helpful articles on Brain Injury.

Understanding the Basics of Brain Injury Starts With Anatomy

In order to understand the significance of any traumatic brain injury, a basic understanding of anatomy and physiology is certainly helpful.  If we want to comprehend the extent of any bodily injury and repair process, one must first look at typical structure and function.The Brain

The brain is broken down into various regions, sometimes referred to as lobes, and connects to the spinal cord by way of the brain stem.  Scientific and medical professionals may also refer to specific areas of the brain, such as the hippocampus, amygdala, and cerebellum, as individual structures that serve a more specific purpose in terms of function.

The organ itself is suspended in a viscous liquid known as cerebral spinal fluid.  Although the term ‘float’ has been used to describe how the brain sits within the cranial cavity, the brain is held into place by various connective tissues called meninges.  This prevents movement of our brains during regular to moderate activity.  In the event of a traumatic injury, excessive force can cause the brain to suddenly jar, jerk, or just harshly move around within the skull.

The brain is fed by a myriad of different arteries and vessels that wrap around the outermost areas of the brain, as well as weave into and through the innermost structures.  This system delivers imperative oxygen, as well as other nutrients to all areas of the brain.  In a healthy brain, blood never crosses into the brain matter, but rather smaller molecules can pass through the artery membranes and diffuse across, through, and around the neuronal cells of the brain matter itself.  Blood leaking into the brain is an immediate indication of injury.  There are four primary sources that feed blood into the cerebral areas, the right and left vertebral arteries, as well as the right and left carotid arteries, and the smaller intraneuronal arteries branch off from these.  Depending on the location of a traumatic brain injury, blood flow can be hindered to a significant portion of the brain if it occurs near one of these larger structures.

A healthy brain is comprised of various neuronal cell types that operate by sending electrical signals from one cell to another.  Thick nerves that send primary signals are called cranial nerves, and these are surrounded by a plethora of smaller nerves that penetrate and extend throughout the brain, eventually connecting to the brain stem.  Thousands of these cells create an incredibly complex highway of transmission lines that not only use charged ions to communicate, but also interact through the release, fluctuation, and binding of various hormones, also known as neurotransmitters.  Almost every bodily function requires a complicated series of electrical transmissions to and from multiple areas within the brain.  The most amazing part about this type of communication is the fact that it takes only a fraction of a second for our brains to send and process these signals.

Unlike bones or skin, our brains have a limited number of cells from which they can derive certain reparative functions.  From birth, we have a very exclusive pool of stem cells that can successfully grow into functioning neurons.  This is precisely why serious brain damage from some traumatic injuries can sometimes be irreversible.

Despite a limited number of neuron-intended stem cells, this organ has an incredible ability to grow and change.  Neural plasticity is the term used to describe the brain’s ability to adapt to certain situations.  For example, repeated stimulation and electrical activity in a given location might prompt the growth and development of new neurons.  Some brains are also capable of rerouting certain signals in the event of injury or atypical development.  Plasticity varies from one individual to the next, so making a specific prediction about repair or function improvement following a brain injury can be somewhat of a challenge.Logo-M-C-Only-2011

Now that you have a general understanding of brain anatomy and its ability to function, we can dive into the specifics of what exactly happens during a traumatic injury, how that might affect overall human function, and how the brain might attempt to repair itself.

Click here to jump to Article Two in the Series:  Types of Traumatic Brain Injuries

The car accident and personal injury lawyers at Martin + Colin, P.C., handle brain injury cases.  If you have been hurt in an accident due to the negligence of another person, our attorneys may be able to help.  Please email us by using the ‘Contact Us’ form on this page.

Call Now! (914) 771 7711

Victim Hurt in Bronx Car Accident Receives Settlement – Feb. 2015

The personal injury lawyers at Martin + Colin, P.C. have settled a lawsuit arising out of a car accident on Bronx Park East near Allerton Avenue in Bronx, New York.Smiling Young Woman

The plaintiff, a resident of the City of New York, Borough of the Bronx, was traveling alone on Bronx Park East at the intersection of Allerton Avenue, intending to make a right turn onto the Mosholu Parkway.  As he sat in his vehicle waiting to make the right turn, our client’s vehicle was struck from behind by another car.  The impact jolted our client and knocked him back and forth inside his car.

The injured car accident victim sought immediate medical treatment at Lawrence Hospital complaining of lower back stiffness, neck pain and shoulder pain.  He was evaluated, x-rays were taken and he was released.

For the next five months, our injured client suffered in silence, hoping the pain would go away and that he would recover from the accident.  However, the pain persisted and became increasingly unbearable.  The victim injured in the car crash had never complained of back pain prior to this accident.  Eventually, he sought additional medical treatment.  A neurologist immediately observed muscle spasms in the patient’s back, decreased range of motion and also suspected radiating pain.  Treatment with physical therapy was recommended and started.  When continued physical therapy treatment failed to return our injured client to his pre-accident physical condition, the lawsuit was commenced.

Injuries such as those suffered in this case often result in settlements ranging from $5,000 to $75,000, depending on the specific facts of each case.  In this lawsuit, the settlement amount was reduced because the victim sustained painful injuries during the car accident but did not receive medical treatment (except for one brief emergency room visit) for several months immediately following the accident.  Another factor reducing the settlement amount was the lack of objective medical testing confirming the injured accident victim’s complaints.

As stated in a prior post, jury verdicts for injuries causing low back pain, corroborated by objective medical testing, can exceed $100,000.00.  And let’s be clear: the lack of objective medical testing does not mean a lack of pain.  However, the lack of objective medical test results to corroborate an injured person’s complaints can, and often does, reduce the amount of money an insurance company is willing to pay to settle a claim.

The injury lawyers at Martin + Colin, P.C. leveraged their expertise handling similar cases and successfully convinced the other driver’s insurance company that a good settlement was better than an unfavorable jury verdict; and as this case was venued in Bronx County, a jury verdict in favor of the plaintiff could have cost the insurance company a much larger sum of money.  However, our client preferred the certainty of settlement rather than the risk of trial, and during settlement negotiations, 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 Bronx Resident Involved in Car Accident on Southern State Parkway – Dec 2014

Martin Colin, P.C. announces the settlement of a Bronx car accident lawsuit which had been vigorously fought by the insurance company since it was initially filed two years ago.iStock_000001647108_ExtraSmall

Our client, the injured plaintiff, who is a resident of the Bronx, New York, was driving his car westbound on the Southern State Parkway in Nassau County on a summer day in 2013.  Our client observed slow moving traffic ahead on the Southern State Parkway and reduced his speed accordingly.  However, another driver traveling westbound behind the plaintiff’s vehicle did not slow down in time and ended up rear ending our client’s vehicle.  After the accident, the injured plaintiff declined an ambulance to the nearest hospital, and instead drove himself to his preferred medical center, Lawrence Hospital, in Bronxville, New York, where he was examined and treated. During this visit, the physically injured driver complained of severe neck pain and radiating back pain.  Health care professionals at the hospital did a CT scan of the lumbrosacral spine, which indicted that there were several disc bulges at L-2 to L-5 with impingement of nerve roots.  This objective test result was consisted with the client’s claim of back injury with radiating pain.  Afterward, our client received medical treatment from different physicians for treatment of his neck pain and back pain.  He was prescribed pain medication and physical therapy, and was also instructed to undergo an MRI.

Since the accident, the injured driver continued to receive medical treatment and attended physical therapy sessions. However despite all the therapy, he continued to have severe back pain, and was classified as having a permanent partial disability.  Due to the fact that physical therapy has not alleviated his symptoms, a treating physician requested that the driver injured in the car crash continue with his home exercises and follow up with further medical treatment.

The case was vigorously defended by a team of Manhattan lawyers who contended that: 1) our client was not injured at all; 2) even if he was feeling pain, it was not caused by the car accident; 3) even if he was injured, it was so minor it was not worth a lawsuit; and 4) any damage to his lower back, as shown on the MRI, resulted from his physical activity as a handyman and not as a result of the car accident on the Southern State Parkway.

However, during sworn questioning prior to trial, our attorneys discovered that the driver of the offending vehicle had just purchased the vehicle the day before, and was driving the car for the first time.  Moreover, we pointed to the several thousand dollars of vehicle damage as evidence that the car accident involved a significant impact, capable of causing substantial physical injury to the occupant inside the vehicle stopped in traffic.

Prior to trial, the insurance company lawyers filed a motion in court to dismiss our case, in its entirety, claiming that there was insufficient evidence that our client sustained the minimum injury necessary for an auto accident lawsuit.  But the insurance company also agreed to attempt settlement of the case through a mediator.  Our attorneys prepared a detailed summary for the mediator, demonstrating both the strength of our case as well as a the extent of the physical injuries.  After a lengthy mediation session, in which the injured client himself also participated, we eventually obtained a favorable settlement for our client.

The injury lawyers at Martin Colin, P.C., headquartered in White Plains, New York, handle accident claims, negligence and personal injury cases.  If you have been hurt in an accident due to the negligence of another person, our attorneys may be able to help.  Please call (914) 771 7711 or email using the ‘Contact Us’ form on this page.