This is a case where I'm not only proud to exhibit the work and the outcome, but happy that it was for a family that deserves some good news after years of dealing with adversity.
Lisa Humphery and her children, Ralph Nicholas and Sade Nicholas, are the victims of a horrific and tragic accident. One night, while crossing near the intersection of Utica Avenue and Avenue H, they were all struck by a speeding vehicle. Ms. Humphery 's body was broken as she and her son Ralph, who was thrown some 30 feet from the point of impact, took the brunt of the impact, with both being knocked unconscious. Little Ralph, who was holding his mother's hand while crossing,had a broken skull and has never been the same since that night. He bears a significant scar on his forehead that reminds him of what happened every time he looks in the mirror. Sade, while not as injured physically, has the kind of scars no one can see. On that faithful night, she alone was left to deal with the initial carnage and chaos of her mother and younger brother laying in the street bloody and unconscious, for which she still suffers from fear and anxiety.
Initial reports of the accident in the NY Daily News called the accident a "hit-and-run", but dogged investigation by an NYPD Detective brought different answers. According to the police report of the investigation, the vehicle the NYPD found responsible for the accident was a cab driven by Defendant Garry Brown and owned by R&S Car & Limo.
Despite the driver admitting to the police that he "tried to swerve to the left then BOOM and I pulled over", Defendants filed a motion or summary judgment, arguing that (1) they were not liable for the accident, (2) that Ralph was not seriously injured as defined by NY Insurance Law 5102 and (3) neither was Sade as defined by the same. Defendants argued that the police report absent certification could not be used to defeat summary judgment.
As you'll see from the attached papers, the court denied Defendants summary judgment with regards to liability. The tipping point in our favor was a counter-argument presented orally, citing the admissibility of admissions made to the police contained in police reports for purposes of overcoming a motion for summary judgment (see: Kemenyash v. McGoey, 306 A.D.2d 516, 762 N.Y.S.2d 629 (2d Dept. 2003) and Vaden v. Rose, 4 A.D.3d 468, 771 N.Y.S.2d 670, 2004 Slip. Op. 01019 (2d Dept. 2004), which Hon. Bert A. Bunyan cited from my argument in his decision). This allowed the Court to rely on the amended police report and the Defendant's statement admitting liability.
After reviewing Ralph's extensive injuries, Defendants withdrew their motion for summary judgment based on NY Insurance Law 5102.
Defendants also withdrew their motion for summary judgment as to Sade's injuries once we successfully argued our motion to amend Sade's claim to include a "Zone of Danger" claim prior to this motion, but reserved the right to renew after sufficient discovery regarding this new claim (See my subsequent article on Plaintiff's Motion To Amend).
Now that this matter has moved past this motion, a positive resolution to this matter in the near future is in the offing for this strong family.
