When a decision is appealed in a Buffalo personal injury lawsuit, there is no set time within which the Appellate Division for the Fourth Department will provide a decision regarding the issue appealed. There are, however, some additional deadlines that establish a timeframe during which the appeal will proceed.
After the appealing party has submitted its initial papers to the higher court outlining its position as to why the lower court ruled incorrectly, the other party has 30 days in which to submit its response to the court. Failure to do so does not necessary mean that a late response will not be considered, but the court is authorized to impose sanctions for a late response.
Once the adverse party has submitted its brief, the party that originally appealed the decision has ten days to serve a reply to the other party’s argument. There is no requirement, however, that it do so. After all paperwork has been submitted, the parties will then appear before the court to argue the appeal. There is no time limit during which the court must issue its ruling after hearing the appeal, but – unless the matter is particularly complicated – it is usually issued within a few weeks.
The court is also allowed to set forth its own schedule for the submission of documents that may vary from these time limits, so they may not apply in all personal injury lawsuits.
If you have suffered a personal injury and have any questions, please feel free to call us at 716-542-5444.
Most appeals in Buffalo personal injury lawsuits are made to a court called the Appellate Division Court for the Fourth Department. This court is located in Rochester, NY, and hears appeals from civil and criminal courts throughout Western New York. The time period during which an appeal may be brought before this court are governed by their rules. As a result, in other parts of New York State the time limits may be different.
In the Appellate Division for the Fourth Department, you generally have thirty days from the date of the filing of an adverse ruling in which give notice to the adverse party that you will be appealing the decision. Once this notice is given, you then have 60 days within which to “perfect” the appeal. Perfecting the appeal usually consists of submitting a copy of the record of the lower court to the Appellate Division along with copies of a written brief describing the issue being appealed and setting forth why you think the lower court was wrong. Copies of this material must also be served on the adverse party.
While appeals are not automatically dismissed if not perfected within 60 days, the opposing party may move for dismissal after that time, and then you must demonstrate good cause to the appellate court why you were unable to complete the appeal. If an appeal in a personal injury lawsuit is not perfected after nine months, it may be dismissed without the other party making a motion.
Buffalo personal injury attorneys may occasionally speak of a requirement to establish a prima facie case regarding various aspects of your personal injury lawsuit. This term most frequently comes up when one of the parties is asking the judge to dismiss the case either prior to trial or at the conclusion of some portion of a trial.
A prima facie case is one that, if unrefuted by the other party, is sufficiently supported by evidence that a reasonable person may find it to be true. This may come into play, for example, after the plaintiff has completed its portion of the case at trial. At that time, the defense may argue that the plaintiff did establish a prima facie case regarding the cause of the accident, one or more of the injuries, or any other issue relevant to the case. If a prima facie case has not been established regarding a particular issue, that portion of the case may be dismissed by the judge.
If a prima facie case has been established, however, the other party is required to submit evidence refuting it.
If you have suffered a personal injury, we would be happy to hear about your case. Please call us at 716-542-5444.
When a Buffalo resident suffers personal injury in a motor vehicle accident, the rules are different than for other types of injury. Under New York’s No Fault Law, the injured person’s initial economic losses – which mostly consist of medical expenses and lost wages – are paid by his or her own auto insurer regardless of who was at fault for the accident. The No Fault insurer may pay up to $50,000 for these expenses, which is referred to as Basic Economic Loss.
When pursuing a personal injury lawsuit, someone receiving payments constituting Basic Economic Loss is not entitled to recover for economic loss until such losses have exceeded $50,000. He or she may recover for non-economic loss – which is basically for pain and suffering – but to do so, he or she must prove that the injury suffered was a “serious injury” under New York State law.
Once the $50,000 threshold is exceeded, the injured person may recover any additional economic loss in a personal injury lawsuit and is not required to prove a “serious injury” to do so. Instead, the degree of proof required regarding the injury is the same as that in personal injury lawsuits not involving a motor vehicle. Generally, this means that the injured person only must prove that the collision caused an injury that resulted in the claimed losses.
The potential for a sleep-deprived truck driver to cause a truly severe personal injury accident is obvious. Given the large number of trucks traveling the highways of Buffalo on a daily basis, we all have an interest in ensuring truck drivers are as alert and vigilant as possible. The Medical Review Board of the Federal Motor Carrier Safety Administration (FMCSA) – a panel of five physicians that advised the FMCSA on medical issues – has been advocating increased evaluation of sleep apnea in drivers for several years. The FMCSA now has taken a step forward in addressing this condition among truck drivers.
Sleep apnea is a medical condition which causes abnormal pauses in breathing while asleep. These pauses disrupt normal sleep. According to members of the Medical Review Board, sleep apnea may lead to chronic fatigue, reduced reaction time, lapses in attention and distractibility. Operating a truck under such conditions is an obvious danger. A professor at the Harvard Medical School has determined that individuals with sleep apnea are 242% more likely to be a crash risk than individuals without this disorder.
While the FMCSA has as yet to adopt a comprehensive rule regarding sleep apnea, it has recently posted for comment the recommendation of the Medical Review Panel and the Motor Carrier Safety Advisory Committee that medical examiners should be told by the FMCSA that they must test truck drivers with a body mass index of 35 or greater for sleep apnea. Research has demonstrated that a high body mass index – a measurement of percentage of body fat – is a strong indicator of susceptibility to sleep apnea.
A recommendation that a truck driver who falls asleep while driving or is in a crash related to fatigue result in immediate disqualification to operate a truck is also up for consideration. The truck driver would be required to undergo evaluation and, if necessary, treatment for sleep apnea prior to being allowed to drive. Under the recommendation the medical examiner could provide a 60-day conditional card to the driver during evaluation and treatment.
Hopefully, these recommendations will be a step toward reducing the number of fatigued truck drivers on the road. If you have been injured in an accident with a truck, we would be happy to answer your legal questions. Please feel free to call us at 716-542-5444.
Under New York State law, the initial medical expenses, lost wages and other costs incurred by a Buffalo resident following injury in a motor vehicle accident are paid by the injured person’s own auto insurance company. The regulation requiring these payments is usually referred to as a No Fault law – meaning the injured person does not have to prove who was at fault for the accident before these initial payments are made. New York is one of only a handful of states that use a No Fault system for motor vehicle accidents.
Under certain circumstances, a person injured in a car accident may also pursue a personal injury lawsuit against the driver and owner of the vehicle that caused the collision. When this happens, one of the items the lawyers for the defense will usually want to examine in the No Fault file. The No Fault file consists of all the documentation kept by the injured person’s insurance company regarding their payments and the medical records provided to them. It also contains any documentation regarding bills that the insurer disputed and the results of any medical examinations conducted at the insurer’s request.
The defense usually wants to see this file to see if there is any information that supports their position that the injured person was not that seriously injured or that the injuries were caused by something other than the accident. Generally, the information in this file is required to be disclosed to the defense, although there are some exceptions.
If you have been injured in an auto accident and need legal advice, please feel free to call us at 716-542-5444.
Experienced Buffalo personal injury attorneys are familiar with the defense questioning whether airbags deployed during a motor vehicle accident. While defense attorneys may insinuate that the failure of airbags to go off confirms that the speed of the vehicle at impact was not that high, this is not always the case.
First of all, front and side airbags simply do not deploy when a vehicle is struck from behind. Nonetheless, defense attorneys routinely ask if the airbags deployed in rear end collisions because they are aware that not all jurors know this fact, and it gives the impression that the impact was not that severe.
Even in cases involving collisions at an angle where the airbag would deploy, according to the National Highway Traffic Safety Administration, front airbags are usually designed to go off in accidents where the force is the equivalent to hitting a solid barrier at 8 to 14 mph. Hitting another motor vehicle, however, is not the same as hitting a solid barrier – the motor vehicle absorbs some of the energy when it crumples and also can be pushed, which absorbs more energy. As a result, a 14 mph collision with solid barrier is roughly the equivalent of striking a parked car at 28 mph.
If you have suffered a personal injury in a motor vehicle collision, we would be happy to help you. Please call us at 716-542-5444.
Damage to the neck and back is among the more common injuries suffered in Buffalo personal injury accidents. The spine is a very complicated part of the body. It needs to protect the spinal cord and associated nerves which allow for feeling and motion throughout the entire body, yet be flexible enough to allow for normal movement. While the spine’s large number of moving parts and specialized structures are wonderful when working properly, the complexity of this system also makes the spine more susceptible to injury.
Doctors divide the spine into three separate sections: the cervical, thoracic and lumbar spine. The cervical spine consists of seven vertebrae (the individual bones that make up the spine) running from the bottom of the skull to the base of the neck. It is responsible for movement of the neck and is generally the least protected part of the spine because of its need for flexibility.
The thoracic spine consists of twelve vertebrae running from the base of the neck to approximately the bottom of the rib cage. It is probably the portion of the spine least likely to be damaged in a personal injury accident, since it is not as flexible as the other portions of the spine and it is somewhat protected by the ribs, shoulder blades, etc., which surround it.
The lumbar spine usually consists of five vertebrae (there can be some variation in this) which run from the bottom of the ribs to the small of the back. Flexibility at the waist is largely seated in the lumbar spine, so it tends to be damaged in personal injury accidents more often than the thoracic spine.
The courts of Buffalo do not want to see personal injury trials bogged down in arguments regarding issues that are not really in dispute. Instead, it is preferable for all parties to a personal injury lawsuit that the matter be narrowed down to the issues that are actually relevant before proceeding to court.
One mechanism that may be used to narrow such issues is the Notice To Admit. New York State law provides that any party to a personal injury lawsuit may serve upon any other party a formal request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.
The law further provides that each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.
If an admission is made its use is limited to the personal injury lawsuit and it is not deemed an admission for any other purpose.
Before being scheduled for trial, most Buffalo personal injury lawsuits go through a phase in which the parties exchange information and the likely witnesses, including the parties, are examined by the opposing lawyers. This information gathering phase is generally referred to as the disclosure portion of the case. New York law has set up this portion of the lawsuit so that it can proceed with very little involvement by the court.
When the parties do not agree on the information that must be exchanged, however, it may be necessary for the court to become involved. When a party is not provided with information or documentation that it believes is relevant to the lawsuit, that party may make a motion to compel that will be argued before the judge presiding over the case.
When such a motion is made, the side that has refused to turn over information will be required to explain why the information sought should not be provided. While a party is not required to turn over information or documentation that is clearly irrelevant to the proceeding, New York State law generally encourages the open exchange of information. After hearing both sides position on the information, the judge will determine if the requested information must be provided.
If you have suffered a personal injury and have any questions, please feel free to call us at 716-542-5444. We would be happy to help.
