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Tomorrow I head to Buffalo to give my annual “Municipal Liability” update lecture to a room full of lawyers there.  I have already given the same talk in Albany, Syracuse and Rochester earlier this month.  Buffalo is the “end of the road” for this year.

I’ve been giving the annual update on this topic to my fellow New York personal injury lawyers all around New York state every year since 2007.  To prepare the talk, I have to  read EVERY published case from all New York courts on the topic for the entire year, which amounts to hundreds of cases.  I then have to write an “outline” summarizing the most important hundred or so cases.

Lots of work?  Sure.  And it is UNPAID work.  Totally voluntary.  But still, I get more out of it than what I put in.  How?

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We made this offer in our latest Newsletter and had a solid response from our readers. So we are now offering it to our blog readers as well:

We are offering all our NY State readers a free auto insurance review.  Why? We see it time and time again. A client comes to us with severe personal injuries suffered in a car accident. The at-fault driver has only minimal car insurance, not enough to cover all the lost income or medical expenses. Our client’s hard-earned finances are wiped out. Sometimes they need to go on welfare. You can’t get water from a rock. So if the guy who hits you does not have enough insurance, and he has no real assets to go after, you are stuck between a rock and a hard place. UNLESS you have had the foresight to buy the right kind of insurance yourself. And buying it is not expensive. It’s just a matter of knowing what to buy. You just need a little advice on how to structure your insurance policy.

Time out. Here’s a quick quiz: Do you know what SUM (Supplemental Underinsured Motorist) coverage is? What about “spousal coverage”? How about “APIP” (additional personal injury protection) If you don’t, you need to talk to us. In our experience, many insurance agents do a very poor job of educating their clients about choices in insurance policies. They often want to take your money without doing the work it takes to get you the right protection.

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The photo on left is of my then 16 year-old son and me a few years ago as we were about to board the Duck Boat for a tour of Boston and its harbor. The “Duck Boat” – for those that don’t know — is a six-wheeled amphibious vehicle originally used as U.S. military landing craft during World War II, but later adapted for tourists in cities with a harbor, river or lake such as Boston, London, Philadelphia and Washington.

It was a cool ride!  We drove around B-Town, then drove right into the Harbor and kept going.  The tour guide — Duck Dude —  joked all the way through the tour while sharing useful and sometimes not-so-useful but sure-as-hell entertaining information.

But there is sad news this week for Duck Boat lovers. A Seattle Duck Boat crashed into a charter bus full of college kids. Terrible accident sending 50 people to the hospital.

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We lawyers at Michaels Bersani Kalabanka have been around the block a few times. Collectively the four of us have clocked in over 100 years of experience as New York personal injury lawyers. But even after all those years, we’ve never been sued — not even once — for legal malpractice. Not that it couldn’t happen; anyone can make a mistake. Maybe we’ve just been lucky. But we do believe we have excellent systems in place to avoid committing malpractice.

Many of our peers have not been so lucky or so organized. We often read cases where our brethren NY personal injury lawyers have been successfully sued for legal malpractice. We also sue some of those lawyers for legal malpractice on behalf of their (ex-)clients. Based on all this experience, we believe we have inventoried the most common errors NY personal injury lawyers make. Fellow New York personal injury lawyers, take note:

1. Failing to file a claim within the limitation period. We call this “blowing the SOL” (statute of limitations). This is by far the most common form of legal malpractice committed by New York personal injury attorneys. If you fail to timely file the claim, it is malpractice as a matter of law. The client will get an automatic judgment against you on negligence (though he or she will still have to prove causation, i.e., that the claim would have been successful if timely filed.) Why is this missing the SOL so common? It should not be. The very first thing a lawyer should do when he takes in a new case is diary, in several places, including in a computer tickler system, the time limitations for filing suit. One reason some lawyers miss the SOL is that they do not properly diary it in several places (computer, paralegal diary, etc.). In our office the lawyers meet twice a month to make sure we have diaried all new cases correctly, in all the right places.  We also systematically review each case when there is one-year left on the SOL, and again when there is only six-months remaining on the SOL. Another cause of missing a filing deadline is when the lawyer diaries the wrong statute of limitations, either because he miscalculated or misunderstood the statute of limitations. This is an easy mistake for the inexperience personal injury lawyer to make because, while the SOL for negligence claims is generally is 3 years in New York, it can be as short as one year (for suing a sheriff), or a year and 90 days (for suing a municipality) or two years (for wrongful death claims). Some lawyers just assume the SOL is 3 years without carefully considering or researching the multiple variations that are possible. You either have to know this stuff by heart (as we do) or look it up!

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I am representing – not for the first time – a personal injury plaintiff who was struck and injured by a falling tree. Very strong case.  But when I tell non-lawyers I am representing a falling-tree victim, they blurt out something like this:

“Wow, a tree falls and you can sue? That’s what’s wrong with our system. A tree falling is God’s fault. Who the hell are you going to sue? God?”

And if they really want an explanation (and are not just venting against our tort system), I respond something like this:

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I am sure you can guess why many of our severely injured personal injury victims tend to fall behind in their bills. Hint: They can’t work! And while their debts piles up, their personal injury claim may not settle or get to trial for many months to come. Solution? They can just get a loan from us, their lawyers, right? Wrong! As lawyers we are prohibited from lending our own clients money — it’s considered a conflict of interest. Our hands are tied! So what do we do?

We do everything in our power to keep them afloat, except lend them our money. And we have many tools to get the job done: We can help them apply for New York State disability insurance and social security disability. We can help them get loans from family or friends by making a legal promise to those lenders to pay them off first – even before we pay our client – from any settlement or judgment we obtain. If our clients need more economic help still, we can refer them to a commercial claim lender who will provide cash in exchange for a “lien” against the personal injury case. The “lien” entitles the lender to be paid first from the personal injury settlement or judgment, plus interest.

And if all else fails, there’s bankruptcy. But we do everything we can to keep our clients from filing for bankruptcy. That’s a last resort. Why? After all, bankruptcy wipes clean most or all the client’s debts, giving our client a “fresh start”. What’s wrong with that?

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Look at this kid! Fernando Vanegas, 19 years old. Same age as my son Sebastian, who just went off to college.  Full of life, of hopes, of dreams, just like Sebastian. Fernando came to Queens, New York from Ecuador only a year ago to reunite with his parents whom he had not seen in 15 years. As an immigrant with almost no English, the best job he could land was in the construction industry. Dangerous work. He would come home at night and tell his parents how frightening his work was; close calls involving retaining walls almost falling on him. Then, last Thursday, he did not come home. A retaining wall collapsed, burying him and two other workers in a heap of cinder blocks. He died.

He should not have died. The warning signs were all there.  The site should have been shut down. Several safety violations had recently been reported, including that the retaining wall was not stable.  The City failed to shut down the work.

Fernando was a canary in a coal mine. Now of course the site is shut down.  Now of course, at least for a while, the City will err on the side of caution, and shut down similar sites.  Shame on his employer, and shame on the City of New York inspectors, for allowing him to die under such conditions, without heeding such obvious warning signs of danger.

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Everyone knows that driving while intoxicated (DWI) is a serious crime that can land you in jail. But few people know about boating while intoxicated (BWI) laws.

When we think of boating, we think of relaxing or even partying on the water, often with a cool beer in hand. We would never even consider doing the same while driving a car!

But the popular image of boozing while boating as “acceptable” behavior does not match the current state of the law in New York State. In 2006, Albany finally woke up to the statistical fact that boating while intoxicated is just as dangerous as driving a car while intoxicated. It thus passed a law ratcheting up the criminal penalties for boating while intoxicated to match those for driving a motor vehicle while intoxicated. And the BWI blood count limit is 08%, same as for driving a car. (The legal limit for minors is .02%).

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Lavern Wilkinson was a thirty something year-old single mom with mild chest pain. Being of a cautious nature, she thought to get the chest pain looked into. This eventually brought her to Kings County Hospital in New York City for chest x-ray. The results, she was told, were just perfect. Go home. Nothing to worry about.

Two years later, with more significant symptoms, and with the aid of another x-ray, she was diagnosed with advanced lung cancer. It had spread to other organs. She was terminal. Her doctors then looked back at that old x-ray and saw a nodule in its early stage. It was plainly visible. At that stage, it could have been easily removed surgically. She could have been cured.

Now, though, it was too late. But it was not too late – she hoped – for a lawsuit. After all, she was a poor single mother with an autistic 15 year-old daughter who was about to become motherless. Her daughter would need the compensation Lavern was entitled to. Her case, she figured, was a slam dunk.

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Phone: 315.253.3293Fax Number: 315.252.6970
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