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Struck in the Rear

The plaintiff driver was struck in the rear by the defendant motor vehicle driver in Rockland County, New York. BBNR made a motion asking the court to determine that the defendant was at fault as a matter of law. The judge granted our motion and the only issue left for a jury to decide was how much money to award. The case settled shortly after winning this decision.

WIESLAW ZOLTY v. CHESKEL DERSHOWITZ

Supreme Court, County of Rockland, Index No. 13303/10

This personal injury action arises from an incident in which the Plaintiff’s vehicle was struck in the rear end by Defendant’s automobile. At the time of the accident, Plaintiff alleges that he was stopped on Route 306 in the Town of Ramapo waiting to make a left tum onto Phyllis Terrace when he was suddenly and unexpectedly struck by the Defendant’s vehicle. Plaintiff has now moved for summary judgment on the issue of liability contending, in substance, that there are no issues of fact to be determined.

In opposition to the motion, Defendant’s counsel states, in substance, that Plaintiff’s motion is premature since no discovery has occurred. No affidavit from the Defendant has been offered. CPLR Rule 3212 provides that a summary judgment motion will be granted if, upon all the papers and proof submitted, the cause of action is established sufficiently to warrant the Court, as a matter of law, in directing judgment in favor of any party. The motion will be denied where any party shows facts sufficient to require a trial of any issue of fact. Len Duong v. City University, 150 AD2d 349, 2nd Dept., 1989. In determining this motion for summary judgment, the evidence must be viewed in the light most favorable to the responding party and least favorable to the movant. Glennon v. Mayo, 148 AD2d 580, 2nd Dept. 1989.

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence and to provide a non-negligent explanation for the collision. Niyazov v Bradford, 13 AD3d 501, 2nd Dept., 2004; Russ v Investech Sec., 6 AD3d 602 2nd Dept., 2004; Vecchio v. Hildebrand, 304AD2d 749, 2nd Dept.,2003; McGregor v. Manzo, 295 AD2d 487, 2nd Dept. 2002.

In support of his motion for summary judgment, Plaintiff has subm’Ited an affidavit and a police report confirming Plaintiffs version of the facts, i.e., that he was stopped at an intersection when his automobile was struck in the rear by Defendant’s vehicle.

Defendant has not offered any evidence in opposition to the motion to rebut the inference of negligence and to raise a triable issue of fact. Defendant’s contention that Plaintiff’s motion is “… premature…” and that discovery must still be conducted does not warrant denial of Plaintiffs motion since Defendant, as operator of his vehicle, has personal knowledge of the relevant facts of the accident. The lack of disclosure thus far in the case does not excuse Defendant from submitting an affidavit in opposition to the motion. Rainford v Sung S. Han 18 A.D.3d 638, 2nd Dept., 2005; Johnson v Phillips, 261 AD2d 269, 2nd Dept, 1999. Accordingly, Plaintiffs motion for summary judgment on the issue of liability is granted.

The parties are advised that a Preliminary Conference in this matter will be held on May 4, 2011 at 9:30am.

April 19, 2011

Hon. Alfred J. Weiner, J.S.C.

Select A Practice Area

Construction Accident

$1,700,000

$1.7 million verdict in New York County against the driver of a delivery truck who struck a man as he was crossing the street within the crosswalk in Manhattan.

Motor Vehicle Accident

$3,600,000

$3.6 Million settlement in New York Supreme Court for a Spanish speaking construction worker who fell off a 6 foot ladder and landed onto metal and wooden debris. The worker required lumbar spinal surgery for his injuries and needed surgeries to both knees from the fall. The worker could not return to work and suffered depression from his injuries resulting in a suicide attempt.

Construction Accident

$3,200,000

$3.2 million verdict in Queens Supreme Court for an undocumented Polish speaking construction worker who fell 12 feet during a demolition project. The worker fractured a vertebrae and herniated several discs in his spine requiring surgery. The plaintiff was unable to return back to work due to his injuries.

Motor Vehicle Accident

$1,500,000

$1.5 million verdict in Supreme Court Kings County for a woman struck by a car that jumped the curb and hit the pedestrian while standing on the sidewalk across from Prospect Park, Brooklyn.

Slip And Fall Accident

$1,900,000

$1.9 million verdict in New York Supreme Court for a bank manager who slipped and fell on a wet floor, resulting in spinal injuries. The building owner knew about a recurring leak inside the basement cafeteria but failed to correct the problem.

Construction Accident

$2,000,000

$2 million settlement in Queens Supreme Court for Polish construction worker who fell 2 stories from a bucket. The worker’s supervisor told the construction worker to ride the material bucket down to use the bathroom because it would save time. The worker fractured his pelvis in several places requiring surgery and was unable to return to work.

Medical Malpractice

$4,500,000

Defense counsel offers 11 cents to settle before trial and the jury renders a verdict of $4.5 million dollars for a medical malpractice victim and his wife. The action was commenced in New York Supreme Court for a patient who suffered massive internal bleeding during a lower back surgery when the surgeon negligently cut an artery and failed to promptly treat the condition, causing a loss of oxygen and injury to the brain. The anesthesiologist failed to properly monitor the patient’s vitals during the surgery and alert the surgeon of the drop in blood pressure.

Assault

$1,250,000

$1.25 million settlement in New York Supreme Court against building owner for negligent security that caused two women to be assaulted while leaving work. A masked man entered their elevator from a floor that was supposed to be closed off for construction. The assailant used a metal pipe to attack the two women. The two women split the settlement monies.

Construction Accident

$1,500,000

$1.5 Million settlement in New York Supreme Court for a construction worker who was struck by a piece of concrete that fell on his head and back. Workers above were chipping concrete despite knowing that people were working directly below them. The plaintiff required surgery on his neck but made a good recovery.

Medical Malpractice

$3,900,000

$3.9 million settlement in Supreme Court Kings County for a Brooklyn man who suffered a stroke shortly following an eye surgery. The patient was given medical clearance for local anesthesia but instead was placed under general anesthesia for 7 hours. The patient’s blood pressure was not well controlled resulting in a 30 minute hypertensive emergency near the end of the operation. The patient died after 7 years of living in different nursing homes.

CLIENT REVIEWS

    I did not think myself that we will win this difficult matter and become victorious, especially after being rejected by numerous other attorneys…but your professionalism Brett, dedication and determination, not to mention a huge heart, was how we prevailed

ALEKSANDER J.

    When I brought my situation to a local attorney he directed me to Brett Nomberg, and I’m so glad he did. Someone always was able to give me a status of what was going on. Your team made my wife and I realize we were dealing with a truly professional firm and at the same time, sympathetic to our needs. Great job. Excellent Customer Service.

GREG M.

    I want to thank you for all the help and support that was given to my parents by you and your colleagues. Your firm’s time, effort and dedication, is without question second to none and this led to a successful settlement

PAT R.

    We can’t thank you enough for the wonderful representation you provided and for believing in our case. It was very vindicating to have a judge and jury decide in our favor.

JANE AND TOM D.