Our firm has successfully represented numerous pedestrians struck by cars in New York City over many years of practice. We truly believe that it is critical that as a client you fully understand the laws as they pertain to your pedestrian car accident case so that we as a firm work hand in hand with you towards the best recovery possible. We do not take every case, and for this reason the cases that we do take we are afforded the opportunity to focus our resources and attention to make sure that your case moves forward in an efficient manner not wasting any time in the pre-lawsuit stage, thereby imposing as much pressure as possible on the insurance company involved to resolve your case for as much as we can possibly get for you. There are many Personal Injury law firms in New York City that take on numerous motor vehicle accident cases. These cases typically linger in a pending pre-suit stage, and then once you are done with treatment, the high volume law firm tries to settle your case with phone calls and if not successful, they then place the case into suit. We are not a high volume practice – we are careful about the type of case that we take and therefore have the luxury of dedicating the time and attention and resources that your case requires to process your case timely and efficiently to achieve the maximum recovery.
Despite progress New York City remains a dangerous place for pedestrian safety. New York City’s Vision Zero (https://www1.nyc.gov/html/dot/html/pedestrians/ped-safety-action-plan.shtml) policy was put into effect in 2014. The plan specifically acknowledged the injustice pedestrians faced with respect to risk of injury. Traffic deaths in general have fallen a 1/3rd since the year before Vision Zero began, but deaths caused by pedestrians struck by cars still make up the majority of New York City’s traffic fatalities (NYC DOT – Pedestrians – Safety Action Plans).
Vision Zero has put into effect Pedestrian Safety Action Plans specific to each borough, namely Manhattan , Brooklyn , Bronx, Queens and Staten Island. Section 19-180.1 through Section 19-185 of the New York City Administrative Code has put into effect a legislative requirement to monitor locations of pedestrian fatalities and serious injuries thereby identifying locations of particular risk and put into effect a plan of action to identify and improve the safety of particular intersections.
Aside from the unacceptable risk of death, the risk of serious injury to pedestrians compared to those injured by other types of car accidents is far higher for obvious reasons. The pedestrian has no physical protection as compared to an occupant within a vehicle when involved in a car impact. The force of an impact from a car to a pedestrian usually results in serious injury.
With respect to New York State Department of Motor Vehicle statistics, in 2014 there were 14,952 pedestrian motor vehicle crashes of which 268 were killed. In 2019 there were a total of 15,451.00 pedestrian motor vehicle crashes of which 283 were killed. The largest category of pedestrian related accidents in 2019 in terms of pedestrian action at the time of collision was crossing with the signal in their favor.
Even if the pedestrian is doing everything the law requires, the risk of serious injury is far too high for New York City pedestrians.
In New York City, if struck by a vehicle your life can change in the fraction of a second. Despite the documented progress of Vision Zero, one of the best deterrents in place for drivers who fail to look out for pedestrians is aggressive legal representation for the injured pedestrian.
The first claim an injured pedestrian has when struck by a car is an automatic entitlement to No-Fault benefits.
The New York State No-Fault law is similar in substance to most other states. The No-Fault law is by design to make sure that all victims of motor vehicle related accidents including pedestrians, have automatic coverage for necessary medical treatment and a portion of lost earnings regardless of who was at fault. In New York if involved in a regular car accident, you would be afforded benefits from the insurance company of the vehicle you occupied and your separate bodily liability claim would be made based upon the respective fault of the vehicles involved in the accident.
The only difference when it comes to pedestrian car accidents, is the No-Fault benefits are primarily provided by the vehicle involved in the accident. The bodily injury liability claim is a separate and distinct claim made against the owner and operator of the vehicle involved and they will be covered by the same carrier by different claims representatives.
New York’s No-Fault Benefits provide a minimum of up to $50,000.00 in coverage for a combination of necessary medical treatment and lost earnings coverage. Specifically with respect to loss of earnings coverage, the injured pedestrian is entitled to only 80 percent of their income or $2,000.00 per month, whichever is less (with some exceptions for extra Personal Injury Protection benefits). This does not prevent a loss earnings claim for the entire amount lost in the bodily injury portion of the claim (past and future if applicable).
Time Limitations for New York No-Fault Claims:
In order to qualify for No-Fault benefits a No-Fault application must be filed with the insurance company for the vehicle which struck the pedestrian within 30 days of the accident. The form that is required is an NF2 Form.
As a law firm we always prefer that our office submit this form as any statements made by the injured pedestrians including a completed NF2 form can be used against the injured pedestrian to the extent that they are inconsistent with the injured pedestrian’s position at the time of a trial, but to the contrary any consistent statements are usually not admissible.
All medical bills must be submitted within 45 days of given treatment and that lost wage claims be submitted within 90 days.
Treatment with respect to pedestrian car accidents must be billed to No-Fault as the No-Fault coverage is primary over all other forms of healthcare coverage. If No-Fault benefits are exhausted, then your regular health insurance will provide coverage.
It is also critical that your medical provider accepts the assignment of benefits and bills the No-Fault carrier directly for medical treatment. Once an assignment of benefits form is completed and provided to the medical provider, you as a patient are not responsible for any portion of a medical bill that is not paid (unless there is a denial issued for failing to cooperate with the No-Fault claim).
The carrier providing No-Fault benefits has a right to have you examined by a doctor of their choosing. You have a right to reschedule a designated examination once as a matter of right. Failure to attend a second examination for a particular given specialty will result in a denial. The carrier is also entitled to conduct an Examination Under Oath if requested. In sum, the claimant must cooperate with the No-Fault carrier with respect to designated physical examinations and any requests for an Examination Under Oath.
There are no pre-approval requirements for the types of medical treatment. In other words the doctor can treat as long as such treatment is determined to be medically necessary.
The bodily injury claim is a liability claim made by the pedestrian against the owner and operator of the car involved and if operated in the course of employment also against the employer as well.
There are two basic requirements for a qualifying bodily injury claim. The first is legal liability for the cause of the pedestrian car accident and the second is the injured pedestrian must be able to demonstrate a serious injury as defined by Section 5102(d) of the New York Insurance Law (commonly known as a Threshold Injury).
Pedestrians Crossing at Designated CrossWalks Struck by Right or Left Turning Vehicles:
There are many general fact patterns of pedestrian car crashes in New York City. One of the most common is a pedestrian crossing within the crosswalk struck by a turning vehicle. This 2012 study sets forth the high number of left turn pedestrian accident cases in NYC. The turning vehicle is either making a left hand turn or right hand turn from the intersecting road across the crosswalk. By the operation of the traffic lights governing a typical NYC intersection, the pedestrian will have the clear right of way as when the pedestrian has the walk light the turning vehicle is proceeding with a green light and it is the duty of the operator of the car involved to yield to the crossing pedestrian. Section 4-03 of the NYC Department of Transportation Traffic Rules specifically allows a car to proceed straight through an intersection or turn right or left when there is a green light, unless prohibited by a traffic control device in place, but must yield to pedestrians lawfully within the intersection or adjacent crosswalk. Even if there is a right on red or left on red sign in place at a given intersection, the turning vehicle must yield to pedestrians lawfully within the intersection. Section 4-03 also specifically allows a pedestrian to cross in the direction of a crossing signal with a steady walking person showing, and of course requires any vehicle to yield the right of way. Pedestrians already in the roadway when faced with a flashing upraised hand with or without a countdown must proceed to the nearest island or sidewalk and cars must yield to the pedestrians as long as the signal remains flashing. When there is a steady upraised hand, no pedestrians shall start to cross the roadway in the direction of the signal, however any pedestrians who have partially completed their crossing on a steady walk or flashing upraised hand must proceed to the nearest island or crosswalk. Section 404(d) specifically states that “notwithstanding other provisions of these rules, the operator of a vehicle shall exercise due care to avoid colliding with any pedestrian.”
When there is no traffic control signal or when the control signal is not in place or in operation the operator of a vehicle must yield the right of way to a pedestrian crossing within a crosswalk when the pedestrian is in the path of the vehicle or so close as to be in danger.
Pedestrians Struck While Crossing Out-Side of CrossWalk:
Pursuant to Section 1150 of the New York State Vehicle and Traffic Law, pedestrians are subject to the traffic regulations. If a pedestrian is crossing at any other point on a roadway other than a marked or unmarked crosswalk, the pedestrian shall yield the right of way to any vehicles upon the roadway. In other words a pedestrian should not walk directly into a passing vehicle, however, if the pedestrian is crossing and is within the roadway this provision does not give the car and right to run over a pedestrian. Section 1146 of the New York State Vehicle and Traffic Laws require that drivers notwithstanding the provisions of any other law to the contrary, every driver shall exercise due care to avoid colliding with a pedestrian upon any roadway. In fact Section 1146(b)(1) imposes affirmative punishment upon a driver (notwithstanding civil liability) for a driver who fails to exercise due care and causes physical injury to a pedestrian. Every operator of a motor vehicle has the legal duty to see what is there to be seen and has the legal duty to make efforts to timely avoid an impact with a pedestrian.
In short, although a pedestrian should not cross mid-block when there are crosswalks available, the obligations of a driver to see what there is to be seen and to timely brake to avoid a collision provides a firm basis for an actionable case against the driver involved. The driver will be able to claim comparative fault, as New York State is what is known as pure comparative fault state, but it has been our experience that most of the jury pool recognizes that not all pedestrians cross at the crosswalk and this common situation although a probable basis to assert a comparative fault claim, provides no license to a driver to strike a pedestrian.
Pedestrians Struck on Sidewalk:
One of the most obvious categories of clear pedestrian car crash liability is a pedestrian struck by a vehicle on a sidewalk. Horrific accidents do occur in New York City when a vehicle loses control and jumps a sidewalk. The most common form of fact pattern where a pedestrian is struck while on a sidewalk is when a vehicle is entering a driveway, parking lot or other curb cut out and fails to yield to pedestrian traffic. Section 1151-a of the New York State Vehicle and Traffic Law makes clear that any driver emerging from or entering an alleyway, private road, driveway or building, must yield to a pedestrian approaching on any sidewalk extending across such a point of entrance. Any pedestrian struck by a motor vehicle while on the sidewalk has a virtually clear liability case.
Pedestrian Struck by Hit and Run Motor Vehicle:
Pedestrians struck by a car that then flees the scene of the accident is unfortunately not an unusual occurrence in New York City. Section 600 of the New York State Vehicle and Traffic law make leaving the scene of an accident without proper report a crime. If the plate number is identified by the victim or a witness, we can run the plate and cooperate with authorities to pursue criminal charges against the offending driver. We can also identify the insurance for the offending vehicle and set up the No-Fault claim and the separate bodily injury claim. However, if the fleeing vehicle remains unidentified then the only real recourse is a hit and run uninsured motorist claim. This is where the pedestrian would first make a claim via the mandatory Uninsured Motorist provision contained in a household policy. A household policy is defined as any insurance policy for a vehicle registered to you or to anyone residing within your household related by blood or marriage. If there is no household vehicle to assert the Uninsured Motorist claim against, then there is a statutory safety net known as the Motor Vehicle Accident Indemnification Corporation (MVAIC). MVAIC is funded by the insurance industry and provides the minimum coverage for No-Fault benefits ($50,000.00) and Bodily Injury Liability ($25,000.00). In order to qualify for MVAIC the hit and run accident must be reported to the police within 24 hours of the actual occurrence.
In order to have a qualifying injury for purposes of a lawsuit beyond automatic entitlement to No-Fault benefits, the injured claimant must be able to demonstrate at least $50,000.00 in economic loss (medical expenses and lost earnings) or a serious injury as defined by Section 5102(d) of the New York State Insurance Law. This is known as a threshold injury, which means if any particular injury meets any given category then all the injuries even though the ones that do not, are subject to recovery and compensation. There are obvious categories, such a death, dismemberment, pregnant loss of a fetus, and a significant disfigurement. Aside from the obvious categories mentioned, there are the following:
Fracture: Any type of confirmed fracture is an automatic threshold injury;
Permanent loss of the use of a bodily organ, member, function, or system.
Permanent consequential limitation of a body organ or member.
Significant limitation of the use of a use of a body function or system;
Medically determined injury of a non-permanent nature which prevents a person from performing all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 of the first 180 days immediately following the occurrence.
The permanent and significant limitation categories mentioned above are subject to a significant degree of case law development and therefore a conclusion regarding whether a threshold injury has been met cannot be concluded from the reading of the statute alone, and therefore, there is no substitute for a consultation with an attorney fully familiar with the threshold requirements.
Medical assistance is of primary importance. Secondary to Emergency Medical Assistance if required, it is critical to make sure that the vehicle involved is identified and that at least the plate number is secured. With the plate number the insurance company responsible for the car involved can be identified by a plate search. Of course it is important for the police to be called to respond to the scene of the accident. Once the police respond, a police report will be generated in the normal course of response and statements will be taken of the driver and pedestrian if the pedestrian is able to give one, Any witnesses that may have witnessed the occurrence itself must be identified. Please understand that witnesses are not a required element of any legal claim, but if the pedestrian car accident is witnessed, it is critical to have them identified. Above all proper medical treatment is the most important thing to secure. The legal plan of action can be formed at any time after immediate necessary medical treatment is provided.
No-Fault benefits are the primary form of coverage for medical bills arising as a result of pedestrian car crashes. Even if you are covered by private health insurance, it is critical that the medical provider be provided with the proper No-Fault carrier for the purposes of submitting their bills. It is also important that they be provided with an Assignment of Benefits for the purposes of direct billing. The medical provider has 45 days from the date of given treatment to submit their initial bill to the No-Fault carrier. A common problem in a pedestrian car crash is the Emergency Room and/or Ambulance provider is provided with private health insurance information. Billing is submitted to the private health insurance provider and then properly denied as No-Fault benefits are primary over private health insurance. The 45 days expire and then the medical bills are denied for untimely submission and then end up in collections. This illustration is to provide one with the reason why it is critical to have the No-Fault carrier billed by the medical provider.
You must find a doctor that is specific to the injury and of course of good credentials and reputation. We always prefer that our clients remain in normal medical channels if it results in proper treatment. If help is needed, we will gladly help you find a quality medical provider. In a pedestrian car accident, it is critical that the medical provider accepts No-Fault as a means of payment. The scenario you want to avoid is being billed for treatment and then having to try to process the bill through No-Fault. Under this scenario, you remain responsible for the medical expenses if the No-Fault carrier does not pay. On the other hand, if your medical provider accepts No-Fault, they will bill the No-Fault carrier directly through an assignment of benefits, and if by chance the medical provider is not paid or paid less than billed, you will not be responsible for any such denials.
As soon as possible. You only have 30 days to file for No-Fault benefits. It is important that your claim is set up properly from the outset and the medical providers are provided with the proper billing information and assignment of benefits are accepted by the medical providers to prevent you from being responsible for any medical bills not paid.
In a pedestrian car accident, the insurance company for the car that hit you is responsible for No-Fault benefits. In New York the minimum coverage is $50,000.00 for Personal Protection Benefits, which includes necessary medical expenses and the other categories of coverage afforded under the No-Fault law. In some cases there is Extra Personal Injury Protection depending upon the policy limits in place for the offending vehicle.
To make sure your bills are covered, the claim must be set up timely, the No-fault application (NF2 Form) must be filed within 30 days of the accident. All medical providers must be provided with the No-Fault insurance information (name and address of the carrier, named insured, policy number and claim number). It is also critical that your medical provider is provided with an Assignment of Benefit form that enables them to submit their medical bills directly to the carrier for payment. Once your medical provider has accepted the Assignment of Benefits, and bills the carrier directly, you are not responsible for any unpaid bills. The acceptance of an Assignment of Benefits makes the medical provider’s exclusive remedy for unpaid bills a separate proceeding directly against the insurance company.
Under New York Law, you have 30 days from the date of the accident in which to file a proper application for No-Fault benefits. Of course if retained, our firm will process all of this for you.
Unfortunately in New York City, there are many pedestrian hit and run accidents. It is critical that the matter be reported to the police (at least within 24 hours). If the plate number is obtained, then we can run the plate number and hopefully identify the vehicle involved. If properly identified the case will proceed against the owner of the vehicle and their carrier will be responsible for No-Fault benefits. If the vehicle remains unidentified then we would file a claim with a household insurance company for any motor vehicle registered to you or anyone who resides with you related by blood or marriage. This is called a Household Uninsured Motorist Claim. The household carrier will step into the shoes for the offending vehicle and will be both responsible for No-Fault coverage and responsible for a separate bodily injury claim. If the injured pedestrian has no household carrier as defined above, then an application must be filed with the Motor Vehicle Accident Indemnification Corporation (MVAIC). This is a statutory entity that provides the minimum coverage for victims of uninsured accidents.
If the offending vehicle proves to be uninsured, then the first claim would be a claim against the carrier for any motor vehicle registered to you or anyone within your household related by blood or marriage. If you have a household vehicle, this insurance company will be responsible pursuant to the mandatory Uninsured Motorist provisions in the policy in effect at the time of the accident. You will be afforded with No-fault coverage for medical bills and a portion of lost earnings, and you will have coverage up to the uninsured motorist provision in place for a bodily injury claim. If you do not have household vehicle coverage, then you will have a claim against the Motor Vehicle Accident Indemnification Corporation (MVAIC). This is a statutory entity that provides the minimum coverage for No-Fault benefits and a separate bodily injury claim.
If No-Fault benefits are exhausted by medical bills (minimum coverage $50,000.00), then your regular health insurance would be responsible for continued treatment. In some circumstances the insurance company that covers medical payments may have the right to assert a lien against your pending case in order to be paid back. This is typically if you have an employer based health plan subject to ERISA. If you have no health insurance a medical provider may try to assert a lien for unpaid medical bills. Typically if there is a lien asserted, these claims can be negotiated at the conclusion of a case. Hopefully the offending vehicle has adequate coverage, and if so in your bodily injury claim they are responsible for all your damages including medical expenses outstanding not covered by No-Fault and future medical expenses if needed and proven.
As long as your medical provider has accepted an Assignment of Benefits (AOB) and billed the No-Fault carrier directly, then you are not responsible for any unpaid bills or portion thereof. The only exception is if the coverage is exhausted or if there is a denial on the basis of failure to cooperate in the No-Fault claim (such as attending requested physical examinations or an Examination Under Oath). Because the No-Fault claim is a direct claim against the insurance company and not the insured, you do have a duty to cooperate with the insurance company.
The insurance company responsible for No-Fault benefits in a pedestrian car accident requires essentially two items to process the lost wage claim. The first is confirmation in ability to work by way of disability note from the treating physician (generally in separate 30 day time periods). The second item is a completed wage verification from the employer sent directly from the employer to the insurance company.
If you as a pedestrian have been struck by a car and you have sustained any type of fracture, or if you have sustained any type of injury that could be considered permanent in terms of its potential effect, you have a case worth pursuing. See the Threshold Injury section of this page for a further reference. In short, if you feel you are really hurt, contact our office and we will provide you with an honest straightforward assessment of your individual situation and how it relates to the threshold injury requirement.
If you have sustained an injury as a pedestrian struck by a vehicle in New York City, and are reading this section, you have found the right one. In selecting a law firm, first and foremost make sure you are not working with a Personal Injury Mill where your case is reduced to a number. Unfortunately there are large law firms in the Personal Injury field in New York City that take on as many motor vehicle related accidents as they can handle. They typically have a large overhead with big rent and big payroll. They are forced to turn over motor vehicle cases for lesser amounts in order to sustain themselves financially. Our firm is committed to carefully selecting the cases that we take on and once retained and committed to a client, we put as much effort and resources as required to achieve the best recovery possible. Personal Injury law firms that have problems are usually the result of inexperience or taking on too many cases, many which are without real merit. The blend of careful case selection, real experience and dedication to each and every client with a results oriented goal, in our view is the key to a successful working relationship.
VTL 1150 – Pedestrians subject to traffic regulations.
VTL 1151 – Pedestrians right of way in crosswalks.
VTL 1151-a – Pedestrians right of way on sidewalks.
VTL 1152 – Crossing at other than crosswalks
VTL 1153 – Provisions relating to blind or visually impaired persons.
VTL1155 – Pedestrians use the right half of crosswalks.
VTL1156 – Pedestrians on roadways.
Insurance Law 5102(d) – Serious Injury Threshold Law
Insurance Law 5201(b)(2) – Purpose of MVAIC
New York City DOT Traffic Rules – NYC Traffic Rules and Regulations
KIM v. MAK, 2020 NY Slip Op 33434(U) (09-14-20 Second Department)
Plaintiff and a second plaintiff were injured while within a crosswalk and the pedestrian signal in their favor. The court held that a pedestrian who has the right of way is entitled to anticipate that motorists will obey the traffic laws that require them to yield. Nevertheless, the court found, a pedestrian who crosses a crosswalk with the right of way may still be held comparatively negligent if he or she failed to notice an oncoming vehicle that could have been seen by the exercise of ordinary care. The court found that the plaintiffs were not at fault in the happening of the accident and it demonstrated that before she began to cross with co-plaintiff, she exercised due care by confirming that she had the pedestrian signal in her favor and by looking for oncoming traffic before entering the crosswalk and that the collision occurred without warning.
MALIAKEL v. MORIO, 185 A.D.3D 1018 (2020) – (07-29-20 – Second Department)
Plaintiff brought this personal injury action when he was struck by a vehicle while within the crosswalk in Richmond County. Plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his own affidavit, which demonstrated that he was walking within a crosswalk, with the pedestrian signal in his favor, when the defendant failed to yield the right-of-way and struck him. The plaintiff’s affidavit was also sufficient to establish, prima facie, that he was not at fault in the happening of the accident, as it demonstrated that he exercised due care by confirming that he had the pedestrian signal in his favor and by looking for oncoming traffic in all directions before entering the crosswalk, and that the collision occurred so suddenly that he could not avoid it.
After the defendant argued that the motion was premature, the court held that the plaintiff’s motion was not premature, as the defendant failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively in the plaintiff’s knowledge and control.
GAMER v. MELSKY, 2020 NY Slip Op 31982(U) (06-23-20 – First Department)
Plaintiff was injured while walking within the crosswalk located at Park Avenue and East 37th Street, and struck by the defendant’s vehicle. Plaintiff commenced this personal injury accident and now moves for summary judgment on the limited basis of liability.
The court found that Plaintiff made a case that no triable issue of fact exists because Plaintiff had the right of way and Defendant admitted his liability to the reporting police officer. In support, Plaintiff submits the certified Police Accident Report (the “Report”), which reads as follows:
Operator Veh #1 states he was making a left turn, saw the pedestrian in the crosswalk, and as he was
stopping, his foot slipped off the brake pedal and Veh #1 struck the pedestrian.
Defendant counters that Plaintiff has failed to make a prima facie showing and submits his own affidavit in support, which reads: “I put my foot on the brake and stopped my vehicle. I saw the pedestrian jump out of the way of my vehicle and I do not believe my vehicle ever made contact with him. On the contrary, I did not feel any impact and I saw the pedestrian walking afterward without showing any sign of being struck by a vehicle.”
The court held that Plaintiff has made a prima facie showing of entitlement to summary judgment by offering evidence that he was within the crosswalk with the light in his favor when he was struck by Defendant’s vehicle. Plaintiff submits his own sworn affidavit indicating that he entered the crosswalk when the “walk” signal indicated that it was safe to cross the street.
The court found that the only evidence offered by Defendant is his own affidavit served to entirely contradict his earlier statement to the police officer. However, “it is axiomatic that statements made by a party in … a police report … that are not denied by the party constitute an admission, and that later, conflicting statements containing a different version of the facts are insufficient to defeat summary judgment, as the later version presents only a feigned issue of fact.
KHOUNI v. SIDIS, 2020 NY Slip Op 34190(U) (12-16-20 – Second Department)
The Plaintiff was injured on December 5, 2017, when he was struck as a pedestrian by the defendants’ motor vehicle as it was making a right turn, knocking him to the ground. Plaintiff was 63 years old at the time of the accident. Plaintiff began physical therapy 2 days after the accident and went 2x a week for a year and a half and then lessened to 1x a week. He missed his appointments for a month in 2018 when he travelled to Algeria. He worked occasionally at the time of the accident, and did not work for a year and a half after the accident for his own personal reasons, and was not advised by his doctors that he could not work.
Defendant then moved for summary judgment granting summary judgment based on Insurance Law § 5102(d), claiming that the plaintiff’s injuries fail to meet the “serious injury” threshold as required by the statute.
The court found that the defendants’ submissions demonstrate their prima facie entitlement to summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants have submitted competent medical evidence, including the affirmed report of their examining medical expert, Dr. Mannor, establishing that the alleged injuries to the plaintiff’s lumbar spine and right ankle do not constitute a serious injury under the permanent loss of use, permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d).
The court went on to say, furthermore, while the plaintiff testified that he has certain limitations in his activities, there is no objective evidence to support plaintiff’s claim that his injuries prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities pursuant to Insurance Law § 5102(d). In opposition, the plaintiff has failed to raise a triable issue of fact as to his claim under the permanent loss of use, permanent consequential limitation of use, significant limitation of use and 90/180 categories of Insurance Law § 5201(d). The plaintiff submits certified unsworn and unaffirmed medical records in opposing the defendants’ motion, including the numerous narrative reports of Dr. Hassan, Brooklyn Hospital medical records, and Bay Ridge Medical Imaging, P.C. radiographic reports, which are not in admissible form, and therefore do not constitute competent medical evidence sufficient to raise a triable issue of fact of whether the plaintiff sustained a serious injury.
MATTER OF MARTINEZ-CARMONA v. MOTOR VEH. ACC. INDEM. CORP., 2020 NY Slip Op 50342(U) (03-09-20 – Second Department)
On November 30, 2018, plaintiff was struck as a pedestrian by a motor vehicle while walking along Belmont Avenue and Atkins Avenue in Brooklyn. Petitioner made a claim against the alleged motor vehicle’s insurance company, who denied coverage. Petitioner then commenced the instant special proceeding seeking an order allowing him to bring a direct action against the Motor Vehicle Accident Indemnification Corporation, pursuant to Insurance Law 5218.
The court reminded all that Insurance Law § 5201(b)(2) provides that the purpose of MVAIC is to provide innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, through no fault of their own, by unidentified motor vehicles which leave the scene of the accident. Insurance Law § 5218(a) sets forth the procedure for commencing an action against MVAIC in hit and run cases.
The defendant in this action, MVAIC contends that petitioner did not demonstrate that she is a qualified person pursuant to Article 52 of the Insurance Law because the identity of the owner and operator of the vehicle involved in his accident is known. Petitioner counters that although he knows the identity of the owner and operator of the vehicles involved in the accident, since he has determined that the individual is uninsured, he should be permitted to bring a direct action against MVAIC.
The court found that Petitioner’s motion papers conclusively established that the underlying incident was not a hit and run accident as defined by Insurance Law § 5218. The identity of the owner and operator is known. Accordingly, there is no basis for permitting a direct action against MVAIC. The court reasoned that the petitioner must bring a direct action against the uninsured motorist. Depending on what happens thereafter, the petitioner may be able to bring MVAIC into the action. For example, Insurance Law § 5209 authorizes MVAIC to defend an action against a defaulting uninsured motorist.
KELLY v. BROWN, 2020 NY Slip Op 31855(U) (April 2, 2020 – First Department)
Plaintiff was injured as a pedestrian when she was struck and injured by a reversing motor vehicle on 68th Street, between First and York Avenues. Plaintiff moved for summary judgment on the issues of liability pursuant to the New York Insurance Law 5102(d).
The court found that VTL 1146 , and VTL 1127 applies. Defendant testified that he reversed his car on a one-way street and was looking behind him when he moved the car seven or eight car lengths down the street, did not see the impact at all, and felt that he struck something. Defendant’s own admission that he did not see plaintiff when he drove his car in the opposite direction of a one-way street demonstrates that defendant violated the VTL 1146 and 1127, and defendant failed to raise a triable issue of fact as to how the accident occurred.
The court reasoned that the defendant’s claim that plaintiff crossed the street outside of a crosswalk and that defendant did not see plaintiff when he was reversing his vehicle does not excuse defendant’s negligence. Drivers have a “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident”
Pedestrian car accidents commonly cause life changing injuries and potentially devastating consequences. Any pedestrian struck by a car should consult with a lawyer such as our firm who are fully familiar with this category of accident. It is critical that your claim is properly set up from the outset so that your medical bills are covered, you are afforded the treatment that you need, lost earnings claims are processed, all available insurance coverage is identified and that the owner and operator of the offending vehicle are held to account in the court of law. It is critical that you have a law firm that will process your case within the legal system in a timely and efficient manner and dedicate all available time and resources to achieve the best outcome possible.
Contact the LAW OFFICE OF JOEL J. TURNEY, LLC today and find out what your case is worth.
Call (212) 840-7000 or submit this form for a free case evaluation.