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Struck In The Rear Leaving Shopping Center

The plaintiff driver was visiting family in Orange County, when her vehicle was struck in the rear while exiting a shopping center. The defendant driver failed to keep a safe distance and struck the woman’s vehicle in the rear. The court granted summary judgment finding the defendant at fault as a matter of law.

EILEEN SHORTEN V. TAMARA PETAK, TAMARA DENDANTO and RICHARD PETAK

Supreme Court, County of Orange, Index no: 7334/2015

According to Plaintiff’s affidavit, she was driving her 2014 Hyundai out of the Orange Plaza Mall. She first stopped at the light before making the right turn onto Route 211 East. Upon the light turning green, she proceeded to make the right turn onto Route 211, but then had to stop for traffic. Defendant Tamara Petak was driving a 2012 Chevrolet directly behind Plaintiff, attempting to make the right turn onto Route 211 when she struck Plaintiff’s vehicle in the rear. Petak does not dispute that she was traveling directly behind the Plaintiff’s vehicle while attempting to turn onto Route 211.

Plaintiffs assert that they are entitled to summary judgment on liability based on the rear-end collision, which establishes a prima facie case of negligence on the part of defendant. They argue that defendants’ purported non-negligent explanation, that plaintiff stopped suddenly after beginning her right turn, is insufficient to raise a triable issue of fact.

In opposition, defendants assert that there are bona fide issues of fact regarding defendants’ liability and plaintiff’s comparative negligence, in light of plaintiff’s sudden stop. Defendants assert that the front driver has a duty not to stop suddenly or slow down without proper signaling. Moreover, a sudden stop of the lead vehicle has frequently been deemed a potential non-negligent explanation for a rear-end collision, which precludes an award of summary judgment. Plaintiff argues that there are issues of fact regarding whether plaintiff’s conduct in stopping suddenly contributed to the happening of the accident.

The Court of Appeals has recently held that a plaintiff does not bear the burden of establishing the absence of her own comparative negligence in order to obtain partial summary judgment in a comparative negligence case. (Rodriguez v. City of New York, 2018 NY Slip Op. 02287 [April 3m 2018]).

Further, plaintiff has established her prima facie entitlement to judgment as a matter of law by demonstrating that her car was struck from behind by the defendants’ car. In opposition, the defendants failed to raise a triable issue of fact. Even if the plaintiff did, in fact, come to a sudden stop, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead.” (Shamah v Richmond County Ambulance Service, Inc., 279 AD2d 564 [2d Dept 2001]; see Vehicle and Traffic Law §1129[a]).

On the basis of foregoing, plaintiff’s application for partial summary judgment on liability is granted.

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Medical Malpractice

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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

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$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.

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$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

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$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.

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JANE AND TOM D.