Q: On a winter evening in the Big City, my buddies and I consumed a quantity.  In the wee hours, we attempted to return home to our Borough.  After waiting some time for a train at an elevated subway station, where a red track-work tape extended across the platform, we decided that the train was not running.

So we walked along a path abutting the track to the next station.  After waiting for a while again, we decided to continue along the catwalk to still another station.  Before we got there, we heard a train approaching from behind and began running forward.  While attempting to get around a signal box, I came too close to the train.

According to the police report, the train operator did not see us.  Before she was able to apply the brake, the train stopped as a result of its trip cock – an emergency device that automatically activates if the train comes into contact with an obstruction.  But according to the Transit Authority report, the operator did see an ‘object’ and herself placed the train into emergency mode.  Later, the operator admitted that the object was a person, about a train car's length away.

A: If the train operator saw you on the tracks under such circumstances as to permit her to stop, then she may be found negligent.  The operator's duty to exercise reasonable care does not evaporate merely because you chose to go along the tracks or otherwise engage in reckless conduct.

Undeniably, your conduct was reckless, but under our doctrine of comparative negligence the jury will appropriately consider your actions and determine what share of the fault your bear.  Good luck.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: At night, while driving my patrol vehicle eastbound on an eastbound one-way street, I heard that an armed robber was fleeing the neighborhood.  So did another officer; call him O.  He drove north on a southbound one-way avenue and turned left onto my street, heading westbound – against the legal direction of traffic.  I saw him only seconds before impact and was not able to evade him.

A: In order to encourage O to take calculated risks in order to save life or property and apprehend miscreants, and realizing the many split-second decisions that are made in the field under highly pressured conditions, Vehicle and Traffic Law § 1104 grants O special driving privileges when involved in an emergency operation.  These privileges can include running through lights and signs, exceeding the speed limit and disregarding the legal direction of traffic.

However, section 1104 does not entitle O to drive with ‘reckless disregard’.  He may not, with conscious indifference to the outcome, intentionally do an act of an unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow. 

Was the danger serious and immediate?  Did O's decision to join the pursuit comply with all departmental rules and regulations?  Did O slow down as he turned onto your street?  Was he driving within the speed limit?  Did he brake hard and veer to the side of the street?  Was he using the emergency lights and siren?  The more the answer is ‘yes’, the more challenging it will be to prove that O behaved with conscious indifference.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2016-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: Thirteen months ago, my uncle fell onto the subway tracks. He was hit by a train. For the next seven weeks, my uncle lay in the hospital, immobile from surgical procedures, laced with painkillers, getting his customary methadone and writhing for a cigarette. In between that and my uncle’s usual severe depression, his attorney found it very difficult to move forward – although he did manage to serve a notice of claim on the MTA a few weeks after the fall. Now my uncle is being told that it is too late to start a personal injury action.

A: So far as is applicable, section 1276(2) of New York’s Public Authorities Law provides that no action against the MTA founded on tort (except for wrongful death) may be commenced more than a year after the accident. However, under section 208 of New York’s Civil Practice Law and Rules, the deadline can get extended by a period of insanity. Our courts are very parsimonious in permitting this dispensation. They have ruled that the break for insanity does not encompass the temporary effects of medications administered in the treatment of physical injuries. Given that your uncle was able to retain an attorney, it is very difficult to contend that he was insane. When section 208 was enacted, a legislative committee considered the possibility of substituting the phrase mental illness for the term insanity, but rejected that possibility. The courts are not permitted to rewrite this law. They are obliged to follow it. Unless there are facts that you have failed to mention, I am apprehensive that your case can go no further.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: For fifty years, my husband had promised me this cruise to the South Pacific.  Our ship was good enough for me, if not for Cleopatra.  On the deck, there was a bar where drinks were sold, and a dance floor, painted a kind of grey.  Only the bar had a canopy.  People carried their drinks across the dance floor.  Drinks often spilled.  The floor had been dirty and sticky from the first night!  I was dancing with my husband.  Then I slipped and hurt myself.  I went to sit down at a table.  He found someone else.

A: If you bring a lawsuit for negligence, your attorney will argue that the construction of the dance floor and the prevailing conditions, as testified to by your witnesses, created a dangerous condition.  The condition of the dance floor was, or should have been, apparent to the owners.  That is, the owners are liable for your injuries, because they knew, or should have known, of the dangerous condition.

Is your husband thinking about a lawsuit for loss of your care, love and guidance – what lawyers call ‘loss of consortium’?  Its viability would seem to depend on how long you were side-lined.  No court will consider this loss if it was ‘de minimis’.  And your husband may well have managed to take the edge off (mitigate) his damages, by finding the other partner.

All of this is somewhat complicated by the fact that a lawsuit might not even proceed in New York, or under New York law.  After all, the accident took place on the high seas.  From what port did you sail?  Is the ship-owner a New Yorker?  Did your contract, for passage, talk about possible lawsuits?  Contracts should be read in advance.  Your lawyer must consider all of these issues.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2010-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: One evening, another driver was driving inappropriately and aggressively, over a distance of several blocks.  She was stopping her van suddenly, tailgating, and swerving.  Eventually, she cut me off as I attempted to make a right turn.  I had no choice but to swerve into lanes of oncoming traffic, and slam on my brakes.  I came to a stop next to a snow bank, and felt pain in my shoulder and neck.

The driver has been telling everybody that, no, she had been driving in the left lane behind me, and that I had repeatedly braked suddenly – and eventually even delayed proceeding through a green light.  She says that, once traffic cleared on her right, she moved to the right of me, and then passed in front of me.  She adds that, as she was trying to make a left turn into the pathway of a store, I tried to cut her off.

We engaged in a physical altercation.  She tackled me, knocked me to the ground, and punched me in the face a bunch of times.  Now, I have a lot of pain in my shoulder.  A year later, the driver pleaded guilty to misdemeanor assault and disorderly conduct.  I don’t even think the van was hers.

A: In addition to alleging assault against the driver, you are likely to allege that the van owner was vicariously liable for the driver’s negligent operation of the vehicle, under Vehicle and Traffic Law § 388.  Section 388 makes the owner liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of the vehicle, by any person using or operating it with the permission of the owner.

To establish liability pursuant to section 388, you must show negligence in the use or operation of the vehicle, and that the negligence was a cause of your injuries.  Where there are conflicting versions of events, it is for the trier of fact to evaluate credibility and determine what happened.  There will also be issues as to how much your injuries were caused by the other driver’s improper driving, for which the van owner arguably is liable, and how much they were caused by the assault.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2019-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: Early on a dark and rainy morning, I needed to walk southbound across an east-west highway.  I waited for the light controlling its traffic to turn red.  I looked to my left and right.  At a steady normal pace, I walked through the unmarked crosswalk.  When I had almost completed crossing – in the eastbound lane – I was struck by a car.

The car had turned left from a street to my right, starting its approach from behind and to the right of me – from behind my right shoulder and out of my view.  I was basically in front of the car, but I guess the motorist did not see me.  The car had not yet completed its turn.

A: As you tell it, the story seems fairly simple.  You waited for the pedestrian signal to be in your favor before entering the crosswalk, and exercised due care by looking in both directions, and for any vehicles turning left, before you entered the crosswalk.  This motorist was under a duty to yield the right-of-way, but failed to do so.

But it is the job of the defendant’s attorney to give you a hard time.  He may argue that, given the configuration of the roadways, the car could not possibly have been behind you at the time of the impact.  He may say that you should have seen the car's headlights – which were there to be seen through the proper use of your senses.  At deposition, the attorney may seek your admission that, actually, you failed to look to your sides and instead looked only ahead.

The defendant’s attorney may try to show that your point of impact with the car was above its left rear wheel – so that, actually, you walked into the side of a passing vehicle.  Surely, he will argue that a pedestrian’s duty of care does not end when she leaves the curb.  Instead, the duty is a continuing one, throughout the entire time of crossing across the roadway.

Even when your case seems like a strong one, never underestimate the amount of hard work your attorney may need to do, and the years it may take, for the possibility of your prevailing to become a reality.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2016-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: One hot summer day, a police officer crossed a line with my son, at their home, and then crossed it with herself.  Over the years, I had made many complaints to the City about my daughter-in-law’s abusive conduct.  If only they had fired her, or at least taken away her firearm.

A: Under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee even when she acts outside the scope of her employment.  The court must determine whether your son was a foreseeable victim – whether he was within the zone of danger created by the City's acts or omissions.

Your case is that the City should have become aware that your daughter-in-law possessed violent propensities, but failed to take further action.  This negligent retention or supervision resulted in her possessing a dangerous weapon, and your daughter-in-law was likely to use the weapon in a manner involving unreasonable risk of physical harm to her husband.

The City had a duty not to entrust a gun to a dangerous or incompetent police officer.  If it did, it had a duty to abate the risk.  The City is liable for placing and keeping your daughter-in-law in a position where she could harm others, even off-duty.  If the facts are only as you state, by training and arming your daughter-in-law, and by allowing her to retain her weapon, the City both created the danger and kept your son in a state of vulnerability.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2016-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: For more than forty years, I have been a lawful permanent resident of this country.  As a member of the armed forces during the Vietnam War, I served with honor.  But recently, I was arrested.  Supposedly, I was transporting a large amount of marijuana in my tractor-trailer.

During the discussions about a plea bargain, my lawyer assured me that I did not have to worry about my immigration status, since I had been in this country for so long.  I relied on his advice and pled guilty.  Now it turns out that my conviction for drug distribution makes me subject to automatic deportation.  If I had received correct advice, I would have insisted on going to trial.

A: The Sixth Amendment to the U.S. Constitution gives you the right to a speedy and public trial, by an impartial jury.  You are entitled to be informed of the nature and cause of the accusation, to be confronted with the witnesses against you, to have compulsory process for obtaining witnesses in your favor, and to have the effective assistance of counsel for your defense.

As a matter of federal law, deportation is an integral part of the penalty that may be imposed upon a noncitizen who pleads guilty to drug trafficking.  Your lawyer could easily have determined that your plea would make you eligible for deportation, simply from reading the text of the applicable statute: it specifically commands deportation for all controlled-substances convictions (with minor exceptions).  By all means, find a new attorney to help you evaluate whether you should withdraw your plea.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: I was traveling in the left lane.  I had stopped for a red traffic light and was beginning to move forward slowly, toward the congested intersection.  Just then, my car was rear-ended – by a road-patrol deputy in the county sheriff's office.

The deputy was traveling to provide backup for another officer who was responding to a burglary alarm.  The deputy was not familiar with the location of this burglary alarm.  Because of the large amount of traffic, and not being certain where he was going, the deputy had decided not to activate his emergency lights or siren.

To deal with the deputy’s uncertainty, the dispatcher had transmitted the names of cross streets, to a mobile data terminal inside the vehicle.  The deputy had been looking down at the terminal’s display.  When the deputy lifted his gaze, he realized that traffic had slowed, but lacked time to apply his brakes.

A: Section 1104 of the New York Vehicle and Traffic Law involves addresses ‘emergency vehicles’.  The driver of such a vehicle may (1) stop, stand or park irrespective of other provisions of the law, (2) proceed past a steady red signal, although only after slowing down as much as may be necessary, (3) exceed the maximum speed limits, so long as he does not endanger life or property and (4) disregard regulations governing directions of movement or turning in specified directions.  In any event, he may not engage in ‘reckless disregard’ for the safety of others.

In effect, the statute exempts a de whose operation falls within the four categories from the consequences of his ordinary negligence – rendering him liable only for conduct constituting the higher standard of ‘reckless disregard’.  Had the Legislature intended ‘reckless disregard’ to be the standard without limitation to the four categories, the statute would have been drafted differently.  To the extent that the deputy was engaged in normal driving, i.e. outside the four categories, the Legislature did not see fit to excuse him from normal standards of negligence.

Even assuming that this deputy was involved in an emergency operation at the time of the accident, it does not appear that his conduct fell within any of the four categories.  While traveling in a normal stream of traffic, driving well within the speed limit and in the proper lane of the roadway, the deputy did something (looking down at his terminal) that simply is not specified in the statute.  Thus, the exemption from liability for ordinary negligence never became applicable.  If you can establish that the deputy was negligent, in an ordinary sense, then you will prevail.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: As I was exiting the subway car, at the last stop in Manhattan, the conductor closed the doors on my ankle.

A: It’s your word against his.  Most likely, the conductor will testify that he invariably followed the correct procedures as to closing the doors: wait for a specified time, make an announcement to stand clear of the closing doors, and only then close them.

Doubtless, the attorney for the transit authority will grill you without mercy.  “Where were you coming from?  Where were you going to?  Was something on your mind?”  The attorney will attempt to show that your ankle got caught because you were not paying attention and jumped off the train at the very last minute.  “Normally the doors will close on the upper part of the body.  His leg was caught between the doors because he jetted out of the subway car at the last moment.  He had reason to be in a hurry and could not afford to miss the last subway stop in Manhattan.  The plaintiff’s haste at the last moment, not the conductor's negligence, caused these injuries.”

Eventually, the court will instruct the jury, in words or substance, “In deciding how much weight you choose to give to the testimony of any particular witness.  The tests used in your everyday affairs to decide reliability or unreliability of statements made to you by others are the tests you will apply in your deliberations.  You bring with you to this courtroom all of the experience and background of your lives.”

Your lawyer can never merely accept your story at face value.  Tell your attorney the whole truth; leave nothing out.  Afterwards, expect that – in evaluating your case and trying to help you – he or she may need to play devil’s advocate.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2013-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: My brother lives out of state.  If he knowingly employ an unauthorized alien, a state law allows the court to revoke his business licenses.  A first knowing violation requires him to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of many years.  A second knowing violation requires permanent revocation of all of his licenses specific to the business location where the unauthorized alien performed work.  In addition, the state law requires that he verify employment eligibility by using a central federal system.  Isn’t this law preempted by the federal Immigration Reform and Control Act?

A: The federal requirements and this state requirement can move freely within the orbits of their respective purposes without impinging upon one another.  Although the federal act expressly preempts some state powers dealing with the employment of unauthorized aliens, it expressly preserves others.  The state law appears to fall well within the confines of the authority Congress chose to leave to the states.

Indeed, the state appears to have gone the extra mile in ensuring that its law closely tracks the federal act’s provisions.  Both the federal and the state law accord the employer a presumption of compliance when he uses the federal system to validate a finding of employment eligibility.

License suspension and revocation are significant sanctions, but they are typical attributes of a state licensing regime.  It makes little sense to preserve the state’s authority to impose sanctions that concern licensing, but not allow the state to revoke licenses as a sanction for immigration violations.  The state procedures simply implement the sanctions that Congress expressly allowed state to pursue through licensing laws.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: After showering alongside the pool, I walked down a corridor toward the locker room.  Towards the corridor’s end, matting gave way to glossy ceramic floor tiles.  I came to a central spot in the locker room, permitting me to access the showers, sinks and sauna.  At this spot, I slipped and fell.  While on the floor, I saw small puddles of water.

May I add that, at times, the showers would cause water to overflow and soak the carpeting at the entrance to the ‘VIP’ area.  Periodically, staff would place towels on the floor, in order to protect that carpeting, and also wet-floor signs.

A: You were not in the shower area; you had left the pool area.  So the club’s attorneys have no business arguing that the presence of water was ‘incidental’ to the use of the central spot.

The club is not an insurer of the safety of its floors.  It can be held liable only if it knew or with reasonable care should have known that the floor was unreasonably slippery.  Your attorney will argue that excessive water had existed for a sufficient length of time before the accident that it should have been discovered and corrected.

In a case like this, often the defendant will submit testimony like “the floor was mopped maybe every 15 to 20 minutes” – but is unable affirmatively to recall, or prove through a written record, when the area had actually last been mopped.  Especially then – and what with the towels and the signs – you appear to have a very strong case.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2016-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878