Past Cases & Results

BUS vs. MOTORCYCLE · CASE #1

DATE OF OCCURRENCE: 5/16/2005

CLIENT: M.L. (25 year-old male)

DESCRIPTION OF OCCURRENCE: Our client, M.L., was riding his motorcycle eastbound on 68th Drive, heading towards 140th Street, in Queens County, New York when he was struck by a bus.  The bus had been stopped facing westbound on 68th Drive and made a sudden, un-signaled left turn onto 140th Street.  The driver’s-side front bumper of the bus struck the left side of my motorcycle, behind the front tire, throwing our client off the motorcycle.

INJURIES: Right shoulder impingement and post-traumatic stress.  Plaintiff’s orthopedist found a 25% permanent loss of use of his right shoulder.

TREATMENT:
Emergency Room:  New York Hospital Medical Center of Queens

Surgery on March 13, 2006: client underwent right shoulder arthroscopic sub-acromial decompression;

Surgery on February 6, 2007: client underwent revision arthroscopic subacromial decompression of right shoulder.

RESULT: September 2008 settlement with bus’ insurance company for $350,000, before trial.

OF PARTICULAR INTEREST HERE:
A.  Plaintiff was a maintenance worker/handyman at a cooperative housing development.  He
missed approximately 12 months of work, spread out immediately post-accident and after each of his 2 surgeries.  We hired an expert vocational economist to value his past and future lost wages, and shared this expert information with the defense.

B.  Plaintiff had a medical expenses lien with his union health insurance plan, which we were able to negotiate downwards for him.

C.   (1)  In a particularly aggressive move, we made an early motion for summary judgment, asking the judge to award judgment in favor of our client on the issue of liability, only on the papers submitted, and without necessity of a courtroom trial.  This would leave for actual trial only the question of damages, or “How much money does our client get”?  While we did not expect to win this summary judgment motion, we find it a useful tool to smoke out the other side’s position early, as they would have to put in written opposition from their driver, explaining their position or defense as to how the accident happened.

(2)  Defendants messed up and only submitted to the court opposition from their attorney, not their driver, and the judge correctly granted our motion for summary judgment, handing our client a big win.

(3) Defendants then tracked down their driver in Florida, and went back to the judge with an affidavit from their driver saying that his bus was stopped and our client drove his motorcycle into it.  Finding an “issue of fact” the judge cancelled our client’s summary judgment win and ordered the case to proceed to trial on both issues – liability and damages.

(4) However, the judge was wrong in giving the defense a “do over” because defendants did not have a legally acceptable excuse for not offering the driver’s affidavit in opposition to the original motion. In fact, the defendants offered no excuse whatsoever as to why they didn’t
present their driver’s opposition to our original summary judgment motion.

(5) In another aggressive move we appealed the judge’s decision and the appellate (higher) court reversed the judge’s second decision and gave our client back his original summary judgment and huge win.  The appellate court held, in part:

“A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must contain reasonable justification for the failure to present such facts on the prior motion.  A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the defendants' motion which was for leave to renew. While the defendants' submission of an affidavit from the defendant [driver] presented new evidence setting forth [his] version of the events surrounding the occurrence of the accident, their purported justification for failing to submit those facts in opposition to the prior motion was not reasonable.”

ATTACHED:
Color medical drawings depicting our client’s first surgery (on March 13, 2006) and second surgery (on February 6, 2007)

Law Offices of Gary E. Rosenberg, P.C.

109-01 72nd Road, Suite 1A
Forest Hills, New York 11375

(718) 520-8787

26 Court Street, Suite 404
Brooklyn, New York 11242

Serving: New York City, including the Boroughs of Brooklyn, Queens, Manhattan, Staten Island, and Bronx, and the Counties of Kings, Richmond, Queens, New York, Bronx, Nassau, Suffolk, Westchester, Rockland and Dutchess.