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Move Over: It’s The Law

A recent crash sheds doubt on the effectiveness of New York's move over law

A local driver’s awareness of New York State’s “move over” law might not have helped state troopers Brent Karow and Shane Swartz all that much. Christopher Neumann was apparently under the influence of alcohol when he plowed into the troopers, as they assisted two tow-truck operators pulling a car out of the median of I-90 in the early-morning hours of March 4, 2018, seriously injuring them.

The troopers and tow operators had responded to an earlier crash on the interstate in North Greenbush, involving a motorist allegedly distracted by his cell phone. They were still at the scene when Neumann, a 26-year-old Albany man, lost control of his vehicle, which left the roadway and crashed into the police vehicle, the troopers and the tow-truck company owner.

Although drunk driving may prove to be the primary factor in this case, the crash nonetheless underscores the dangers faced by police and other emergency personnel who have stopped on or near roadways to issue tickets or respond to crashes. And it highlights the importance of the state’s “move over” law (NYS Vehicle and Traffic Laws, Article 26, § 1144 and § 1144-a), which took effect in January 2011 and has been modified twice to include not only police vehicles, ambulances and fire trucks, but also tow trucks, road construction and maintenance crews, and sanitation vehicles.

Essentially, the law requires motorists—when approaching a crash, construction, or other scene where emergency or work vehicles have lights flashing—to both slow down to a reasonable speed and, where possible, move over to the next lane. The law applies regardless of which side of the road the official vehicles are parked. Violations are punishable by two points on the offender’s license and a fine of up to $150.

The U.S. history of “move over” laws goes back to January 1994, when a South Carolina paramedic named James D. Garcia was struck by a vehicle and seriously injured while working a roadside crash scene. At that time, state laws typically defined emergency responders as “pedestrians,” and Garcia was declared at fault for stepping into the roadway. After several of his requests to change the incident report were denied, Garcia began lobbying the state legislature to enact laws to better protect emergency responders. South Carolina passed the nation’s first “move over” law in 1996.

Today, all 50 states have “move over” laws on the books; only Washington, D.C., does not.

It is commonly acknowledged by government and law-enforcement officials that public awareness of “move over” laws is not as widespread as it needs to be, and that many motorists still believe that slowing down and/or changing lanes for emergency responders is more of a courtesy than a legal requirement. State governments in New York and elsewhere have run PR campaigns to try to improve awareness of the law.

After the March 4 crash in North Greenbush, state police charged Neumann with first-degree vehicular assault—a felony—and driving while intoxicated. At a press conference later that day, Troop G Commander Major Robert Patnaude noted that the crash was precipitated by a chain reaction of two common types of dangerous behind-the-wheel behavior: distracted driving and drunk driving. His comments, however, also underscored the ideological hurdle that “move over” lawmakers are working to overcome.

“You’re driving a 3,000-pound vehicle that is a dangerous weapon, and people take it too lightly,” Patnaude said.

If you or a family member have been injured, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or contact us online.

New Law Extends Statute of Limitations on Cancer Malpractice

Lavern Wilkinson - Albany malpractice attorneys

On March 7, 2013, Lavern Wilkinson succumbed to lung cancer at Long Island College Hospital. Wilkinson was only 41, and left behind an autistic daughter, but what made her death more than just an unfortunate family tragedy was that her cancer could have been halted with proper diagnosis when, in 2010, she came to the Kings County Hospital emergency room with chest pains. Still worse, a cruel twist of state and municipal law left her unable to sue for medical malpractice.

A radiologist spotted a suspicious mass in Lavern Wilkinson’s right lung, but instead of being given the results, she was sent home by a first-year resident with the advice to take Motrin. When Wilkinson returned to the same ER two years later with a chronic cough, the cancer had spread throughout her body and was now terminal.

Although an attending physician confirmed that the hospital had botched the initial diagnosis, the New York State statute of limitations allowed patients only two and a half years from the time of the medical error to file a claim, and for patients (like Lavern Wilkinson) treated in a New York City municipal hospital, the limit was a mere 15 months. So, by the time Wilkinson came back to the ER, her window to take legal action had already closed.

Enter Lavern’s Law

After intense lobbying by hospitals, lawyers and patients and their advocates, the New York State Legislature reached an agreement to extend the statute of limitations for medical, dental, or podiatric malpractice related to the failure to diagnose cancer. Governor Andrew Cuomo signed the bill into law on January 31, 2018.

The law will now give victims of medical malpractice two years and six months to file a claim from the time a person discovers the alleged negligent act or omission. The statute of limitations will begin to run when the patient knows or reasonably should have known of the error and harm, with a limitation that only seven years can pass between the negligent act and the bringing of an action.

Lavern’s Law focuses specifically on patients who have been harmed by the failure to diagnose cancer or a malignant tumor. It does not apply to any other medical malpractice cases. In passing the law, the governor and legislature have acknowledged the long-understood fact that many symptoms of cancer take longer than two-and-a-half years to manifest themselves.

The law also revives claims that became time-barred in the 10 months before enactment on January 31, 2018, allowing those claims to be filed within six months of the effective date of the act.
If you or a family member is a victim of medical malpractice, LaMarche Safranko Law can help. We are leading Albany malpractice attorneys, serving the entire Capital Region. Contact us at (518) 982-0770 or online.

Safranko Speaks Out On Controversial Troy Police Shooting

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On January 30, retired Troy Police Chief John Tedesco published an opinion piece in the Troy Record defending the Troy Police Department in general, and Sgt. Randall French in particular, regarding the April 2016 incident in which French fatally shot motorist Edson Thevenin after a traffic stop. Tedesco’s piece countered recent criticism of the department’s handling of the homicide, notably from the office of New York State Attorney General Eric Schneiderman and Albany Times Union columnist Chris Churchill.

Albany defense attorney Andrew Safranko, partner at LaMarche Safranko Law, echoed similar sentiments on the firm’s Facebook page. Safranko and Co. are intimately familiar with the case, having represented French.

“Thank you for setting the record straight, Chief Tedesco,” Safranko said. “Our office had the pleasure of representing Sgt. French. Anyone familiar with the facts of this case knows that Sgt. French’s actions were justified.”

At 3:26 a.m. on April 17, 2016, French tried to pull over Thevenin, whom he suspected of drunk driving. Thevenin—whose blood alcohol level was more than twice the legal limit—fled the scene, but crashed his Honda Civic near the Collar City Bridge. Two TPD cruisers blocked the Civic, and in the confrontation that followed, French fired eight rounds at Thevenin, killing him.

Much of the controversy in the case centers around the TPD’s handling of evidence and witnesses in the immediate aftermath, and around French’s testimony that he fired in self-defense, because Thevenin had accelerated into him, pinning him against his cruiser. Schneiderman’s office, completing a yearlong investigation of the homicide, concluded that criminal prosecution under state law would not be possible—because of an immunity agreement granted French by Rensselaer County District Attorney Joel Abelove—but was highly critical of the department, and contradicted some of its findings.

In a January 17, 2018, story on the AG report in the Times Union, Safranko—French’s attorney—said the attorney general’s special investigations and prosecutions unit, which issued the report, was formed to investigate the deaths of unarmed and innocent civilians.

“This is not the case here,” Safranko told the Times Union. “Clearly, Thevenin was not innocent, as he was fleeing from a lawful police stop that would have led to at a minimum an aggravated DWI charge and ultimately the loss of his license, based on his prior DWI history. DA’s offices routinely utilize a motor vehicle as a weapon when charging crimes.

“Randy French is a well-respected police officer,” Safranko continued. “And it is uncontroverted that his leg was pinned when he shot. A paid-for report cannot change that. Let me be clear: Sgt. French did nothing wrong. The report concedes that even if Sgt. French was not pinned … he was allowed to use self-defense and was justified in his actions.”

A Rensselaer County grand jury found no evidence of wrongdoing; Thevenin’s family is pursuing a civil action against the department.

If you are a defendant facing a criminal or civil trial, LaMarche Safranko Law can advise you on your best options for defense. Contact us at (518) 982-0770 or online.

 

Slipping and Falling on Ice or Snow: Can I Sue for Damages?

Icy parking lot after a snow storm Albany NY. Contact a slip fall attorney if you've been injured walking in a place like this.Winter in Albany and Upstate NY means there’s always a chance of snow and ice around the corner, and snow and ice mean there’s always a chance someone will slip and fall. And unfortunately, slip-and-fall accidents are all too common, as evidenced by the large number of slip-and-fall personal-injury claims filed each year.

Although the bar is set fairly high to establish that a defendant’s negligence or failure to take reasonable care of a property caused the fall, some claims result in significant jury awards or, more commonly, settlements.

So, if you’re a homeowner or the sole occupant of a rental property, it might be a good time to check on your arsenal of shovels and bags of salt. If you’re an owner or facility manager of a business with a building and a parking lot, you might already have a contract in place with an independent plowing service. And even if you aren’t personally responsible for clearing any sidewalks, steps, driveways, or parking lots, ’tis the season to take extra care for your own safety when walking on them.

The Burden of Proof

If you are somewhere other than your workplace, and you slip and fall on ice or snow on a sidewalk, stairs, or parking lot, you may have a claim against whoever is responsible for the upkeep and safety of the property. You will need to establish proof that the accident happened and that you suffered injuries. Remember, evidence of a slippery area can vanish in one sunny afternoon. If you can, take a cell-phone photograph that clearly shows where you fell, with enough visual context to prove its location. Depending on the severity of the victim’s injuries, this can be done by a quick-thinking companion. If there are witnesses, try to collect contact information. Later, you can submit medical records to document your injuries.

Of course, you will have to prove that the property owner, manager, or tenant either created the conditions that caused your fall or was negligent in the failure to remove or mitigate those conditions. No one can be expected to remove treacherous conditions during a snowstorm in progress. In New York State, many municipalities’ codes establish the time frame allowed for snow removal; in Albany and Schenectady, for example, snow and ice must be cleared within 24 hours of the storm’s end.

Giving Notice

Even if snow is cleared in a timely fashion, temperature fluctuations can cause icy conditions from melting and refreezing. And water draining onto a sidewalk or parking lot will freeze at low temperatures. Liability stemming from a fall on ice in these situations may depend on whether the owner was given actual or “constructive” notice, the latter referring to conditions that are present long enough for the owner to reasonably know that a dangerous situation might exist.

Even if you can establish that you fell and sustained injuries due to slippery conditions that should have been addressed, the defendant’s attorney will look for evidence that you shared at least some of the blame: that you were trespassing, talking on your cell phone, wearing improper shoes, failing to stay on the cleared portion of the sidewalk, etc. And since New York is a “comparative negligence” state, a jury can diminish any award proportional to the amount of negligence you are assigned.

Workplace Incidents

If you are injured at work because of a slip and fall on snow or ice while walking on steps, walkways, or a parking lot of your workplace (or on the lobby floor made slippery by the accumulation of melting snow), in most cases you should file a Workers’ Compensation claim to cover your damages. In New York, the Workers Compensation law does not allow an employee to sue the employer because of negligence that caused an injury.

***If you or a family member has suffered a personal injury in or around Albany due to negligence leading to a slip and fall in icy conditions, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

Why Does a Personal Injury Case Take So Long to Resolve?

Why does it take so long for resolution of a personal injury case?Handling a serious personal injury case can sometimes take years. It’s important for clients of personal injury attorneys to understand why some cases take such a long time to resolve.

No two personal injury cases are alike; some are settled relatively quickly, but others drag on for years, frustrating plaintiffs who have suffered injuries (sometimes with lasting effects), lost income and experienced general disruption to their lives. To the injured party, the seemingly endless delays in reaching a resolution can seem unbearable, and even unnecessary.

But no matter how diligently you and your injury attorney are working to move the case forward, there are several factors that may stand in the way of a speedy settlement or trial.

Delayed Reactions

In personal injury cases, it often takes time to assess the full extent of injuries suffered. For example, car accidents and falls can result in multiple injuries, some of which are not apparent at first, as the victim and medical responders focus on the more obvious ones, like a broken limb or a gash on the head. Some other complications—among them whiplash, chronic back pain and sprained or otherwise damaged joints—may not become fully apparent until later, when the injured party realizes their symptoms aren’t going away.

Often, medical care is lengthy and ongoing. Not only does it make sense from a legal standpoint to allow time to assess the full extent and medical cost of the damage, it is in the plaintiff’s best interest not to act too soon and possibly underestimate that cost before reaching “maximum medical improvement.”

The Discovery Period

Another cause for delay is that medical records need to be gathered, and a thorough investigation needs to be done. This can take months to accomplish. Especially in cases with complex questions about who is responsible for a person’s injuries, consulting with experts is often a lengthy process.

Once this information is obtained, to formally pursue a case, the plaintiff’s personal injury lawyer initiates a lawsuit by filing a summons and complaint, which then must be served upon the defendant(s) within four months. After that, the defendant retains a lawyer who answers the complaint, thereby beginning the pretrial “discovery” period, during which lawyers from each side exchange statements on the details of the case and any witnesses from whom they plan to seek testimony. Discovery documents are compiled and exchanged, as is a thorough “Bill of Particulars” that lays out the plaintiff’s theory of the liability, and the extent of the plaintiff’s harm and injuries.

Depositions

Often months later, after discovery is exchanged, you and the defendant(s), as well as other witnesses, may be required to give depositions under oath. And if either side files pretrial motions—for example, to dismiss certain aspects of the case, or even the entire case—it will take additional time for the court to respond to the motions.

If the lawsuit is not settled at any time during this process, it can go to trial, but even then, the court may set up a settlement conference to see if the parties are able to come to a meeting of the minds. If not, scheduling the trial itself can take months.

Stall Tactics

Finally, the more money that is at stake in a claim, the more likely the defendants’ insurance companies will stall, exhausting all possibilities of challenging your claim, and possibly driving impatient plaintiffs to settle for less. This is another reason it may be in your best interest to allow the legal process to run its due course.

For motor vehicle accidents, New York is a “no fault” state, which means that if you are injured in a vehicle or struck by one as a pedestrian or bicyclist, the vehicle’s insurance pays your medical bills, lost wages and certain other expenses, no matter whose fault the accident is. For information on how to apply for no-fault benefits in New York state, see the Department of Financial Services website.

***If you or a family member has suffered an injury due to an accident, a fall, or a person or institution’s negligence, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

Alex V. Bongermino Found Not Guilty of Attempted Murder and Assault

LaMarche Safranko Law PLLC announced today that Alex V. Bongermino, (20), was found not guilty of all charges against him which included Attempted Murder and Assault. Bongermino was defended by Attorney Nicholas Evanovich.

The jury trial was held before Hon. James M. Murphy and prosecuted by the Saratoga County District Attorney’s office.  The trial lasted just over two weeks.

Bongermino was originally arrested on December 7, 2016, and indicted on March 30, 2017. The charges stemmed from an altercation on December 7, 2016, when Bongermino stabbed another person who had threatened him with guns and knives during the hours before the stabbing.  After defending himself, Bongermino was driving towards the police and after crashing his car on the snowy roads called 911 and begged officers to protect him and his family from this other man who he still believed was a threat.

Subsequently, at the police station, Bongermino spoke to the state police for about an hour about the weeks leading up to that night and early morning and the fear and anxiety he felt.  His concerns came to a head that night when he was given alcohol and repeatedly threatened before finally choosing to defend himself.

“The jury finally did what no one else had done in the case,” said Evanovich.  “They were willing to look at every piece of evidence and did not rush to judgment.  The physical evidence continued to corroborate Alex’s explanation about what happened, which was classic self-defense.”  The jury’s only request during deliberations was to rehear Bongermino’s chilling 911 call during which he cried and pleaded with the dispatcher to help him and protect his family.  

“Alex likely had to make the most difficult decision he’ll ever have to make in his life at 20 years old,” Attorney Evanovich continued.  “Alex has no criminal history, no prior arrests, and had the strong support of his family throughout the trial.  I’m extremely pleased he was finally vindicated.”

 

 

 

Second DWI in New York State

One DWI (driving while intoxicated) or DWAI (driving while ability impaired) conviction in New York state is tough enough: for DWI, a mandatory fine of $500 to $1,000, a six-month revocation of your license, and potentially up to a year in jail; for DWAI, a fine of $300 to $500, a six-month license suspension, and as many as 15 days in jail; not to mention the lawyers’ fees and disruption of your work and social life.

So what happens if you are charged with drunk driving again?

The first consideration is whether the new arrest would qualify as a second offense, which depends on how long it’s been since the first one. Generally speaking, New York’s “look-back” period for a DWI conviction, or a DWAI involving other drugs, is 10 years; for an alcohol-only DWAI, it is five years. (DWI is defined as driving with a blood alcohol content [BAC] of .08 or higher; DWAI is indicated by a BAC of .05 to .07, “or other evidence of impairment.”)

A second DWI within 10 years means you could be charged with a Class E felony, pay up to $5,000 in fines, have your license revoked for at least one year, and/or go to prison for up to four years. A second DWAI violation within five years could mean a fine of up to $750, 30 days in jail, and a six-month revocation of your license.

Factors that will increase the penalties include: having a blood alcohol content of .18 or higher (called aggravated DWI); having other intoxicating drugs in your system; and having a child of 15 years or younger in your car.

Whether or not a person pulled over on suspicion of DWI should refuse a chemical test depends on many factors, and before making this decision, a person should contact a lawyer for advice.

Not all of the DWI and DWAI penalties described here are set in stone. A DWI attorney can help you navigate through some of your options: pleading guilty to a lesser charge; accepting probation and/or a treatment program; or litigating the case by conducting hearings and going to trial. Your attorney also can advise you on whether your county has a felony diversion program, the goal of which is to get people with a history of drunk driving into treatment in exchange for a lighter sentence.

If you have been charged with DWI or DWAI, whether for a first or a repeat offense, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

Injured at the Amusement Park? What are Your Rights?

It was every amusement-park visitor’s nightmare: In June, at Six Flags Great Escape in Queensbury, a 14-year-old Delaware girl somehow slipped out of her seat on a gondola ride, dangling 25 feet above the ground as onlookers rushed over. Fortunately, disaster was averted as a local man and his daughter positioned themselves under the girl, broke her fall, and prevented a more serious injury or death.

How safe are amusement-park rides, anyway? The International Association of Amusement Parks and Attractions, which represents fixed-site parks such as Disney World and the Six Flags franchise, says the 335 million United States patrons who visit the parks each year take 1.6 billion rides, and that the likelihood of serious injury is minuscule 1 in 6 million.


Photo by: Josh Grenier

But the IAAPA also lobbies heavily against any attempt by lawmakers to reintroduce federal oversight to parks like Six Flags. Instead, the industry is regulated by a patchwork of state and local oversight, with no federal guidelines or inspections since Congress removed fixed-site parks from its realm in the early eighties. And lawsuits stemming from accidents typically end in confidential settlements, with no admission of wrongdoing by the park, leaving the details of safety lapses shrouded in secrecy.

A handful of states don’t regulate amusement parks at all; in New York State, the Department of Labor conducts annual and/or pre-event inspections of all amusement-park devices at both fixed-site parks and temporary attractions like county fairs.

In past lawsuits involving amusement-park accidents, many courts—but not all—have held that amusement park owners must exercise ordinary or reasonable care in the construction, maintenance, and operation of their premises to protect tourists from injury. In this regard, they are held to a standard similar to the owners of common transportation devices such as buses and elevators. Grounds for a successful lawsuit against the park typically involve one or more of several types of negligence (failure to maintain the property, failure to inspect and replace faulty equipment, failure to post clear instructions and warnings, insufficient training of ride operators, etc.). Victims may also file a product-liability claim against the manufacturer of the equipment, if, say, a structural defect caused an accident or a restraining bar became unlatched during a ride.

However, some courts recognize that people who use amusement rides have different expectations than people simply boarding a bus for transportation; specifically, that they are expecting entertainment in the form of high speeds, steep drops, and tight turns. And on occasion, courts may find that the injured tourist assumed the risk of injury by ignoring warning signs and safety instructions.

If you are planning to visit an amusement park this summer, you are encouraged to follow these recommendations to make your day of enjoying the rides as fun and safe as possible:

  • Read and follow all instructions and warnings
  • Keep your hands and feet inside the ride while it is moving
  • Don’t reach toward fences and barriers
  • Secure loose clothing and long hair
  • Don’t drink or use drugs while riding
  • Don’t stand or attempt to leave a ride until it comes to a complete stop
  • Make sure restraining devices are properly latched, and don’t unlatch or loosen until instructed by the operator.

If you or a family member has suffered an injury at an amusement park, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

New York Expands Records Sealing Law

 

Thanks to a new provision included in the New York State budget that was passed on April 12, and signed into law by Governor Andrew Cuomo, tens of thousands of New Yorkers will be eligible for relief from the lifelong stigma of a criminal record, allowing them to have a broad range of eligible convictions—misdemeanor and felony—sealed from public view after a ten-year waiting period running from the date of conviction or release from prison.

The new statutory provision (§ 160.59) added to New York’s Criminal Procedure Law gives courts the discretion to seal up to two convictions per person (only one of which may be a felony), for all crimes other than sex offenses and class A and violent felonies.

The sealed records will remain available to law enforcement and some licensing agencies, but will be unavailable to the public and will not appear in any civil background check.new york records sealing law

The new law will take effect on September 27, 2017. Eligible individuals may apply to have up to two convictions sealed to the court where the conviction for the most serious offense occurred (or to the court of the most recent conviction if both offenses are of the same class). The district attorney or case prosecutor will have the opportunity to object, and the court retains the right to grant or deny any request.

In order to be eligible, you must not have any pending charges or have received any other criminal convictions within the ten-year period. In contemplating whether to grant an application to seal, courts will consider the amount of time between offenses; the applicant’s character and rehabilitation efforts, such as treatment programs, work, school, or volunteer work; and the impact the sealing would have on the applicant’s rehabilitation and reentry into society.

If you have a criminal record and think you might qualify for record sealing under New York’s new law, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.