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Gersowitz Libo & Korek, P.C. featured in The New York Times and The Washington Post
Gersowitz Libo & Korek, P.C., a leader among personal injury and medical malpractice firms in the New York area, was recently featured in The New York Times and The Washington Post for the firm’s impressive trial work.
Gersowitz Libo & Korek, P.C. was featured on the front page of The New York Times on Wednesday, August 24, 2011. The article, entitled After Stillbirth, Courts Try to Put a Price on a Mother’s Anguish, by William Glaberson, details a client’s ordeal of fighting the New York Court system after tragically losing her unborn child due to hospital negligence. The New York Times applauded Gersowitz Libo & Korek, P.C. for refusing to prematurely settle the case for less money since a similar lawsuit’s verdict of significantly more money was recently upheld in court.
Gersowitz Libo & Korek, P.C. was also featured in The Washington Post on Monday, November 21, 2011. Michelle Andrews wrote an article on judge-directed negotiation, Judge Devises Model for Resolving Medical Malpractice Cases More Quickly. The article highlights a Gersowitz Libo & Korek, P.C. case where judge-directed negotiation was used to benefit both the client and the NY State Court System.
“We are pleased that our local and national media outlets recognize the need to inform and educate the public on shortfalls and changes in the court systems and government bodies,” states Jeff Korek, a partner at Gersowitz Libo & Korek, P.C. “Many of these issues directly affect so many Americans, and if any of these stories help even one person better their struggling situation, we have done our job.”
Gersowitz Libo & Korek, P.C. has been committed to the relentless pursuit of victims’ rights in New York and New Jersey for over 25 years. Focusing on personal injury, medical malpractice and product liability, the firm has won hundreds of millions of dollars for its clients. For more information on the firm, visit http://www.lawyertime.com.
Gersowitz Libo & Korek, P.C., a leader among personal injury and medical malpractice firms in the New York area, was recently published in the New York Law Journal for its praise of the Honorary Justice Manuel J. Mendez and his enlightened ruling in recognition of the rights of same-sex partners in New York in a recent personal injury trial.
The letter to the editor appeared on page 6 of the April 22, 2011 edition of the New York Law Journal.
In the case, Loiacano v. National Psychological Association for Psychoanalysis, Inc. and Consolidated Edison Company of New York, Inc., there was, as there typically is, a request for exclusion of non-party witnesses during the trial proceedings. Due to the unfairness of the prevailing interpretation of the law, Mr. Loiacano’s partner of 27 years would have been excluded from being present in the courtroom to support his life partner during the trial. Heterosexual spouses would not only have the right to remain in the courtroom, but also to file a derivative action against the defendants.
The Honorable Justice Mendez, in an appropriate exercise of his discretion, ruled that Mr. Loiacano’s partner would be allowed to remain in the courtroom to support him, stating, “It’s a longstanding relationship of twenty-five [plus] years, and I don’t think a quirk in the law that fails to recognize their relationship should prevent him from being next to his partner at this time.”
Edward H. Gersowitz and Jeff S. Korek, both partners of the firm, applauded the Honorable Justice Mendez, the acting Supreme Court Justice of New York County, for his willingness to look beyond the literal interpretation of an outdated law in an effort to provide an equal and just opportunity to same-sex couples.
Gersowitz Libo & Korek, P.C. has been committed to the relentless pursuit of victims’ rights in New York and New Jersey for over 25 years. Focusing on personal injury, medical malpractice and product liability, the firm has won hundreds of millions of dollars for its clients. For more information on the firm, visit http://www.lawyertime.com.
4 ½ Year Old Has the Mental Capacity to be Held Negligent
Two 4 ½ year olds were racing their bicycles down a New York City sidewalk one afternoon when they accidentally crashed into an 87 year old woman and knocked her over. The woman required surgery after suffering a broken hip from the fall, and tragically passed away three months later. The family of the elderly woman is suing- not just the mothers of both children, who were present when the crash occurred- but also the children themselves.
In Menagh v. Breitman, the lawyer for one of the children argued that his 4 ½ year old client could not be held liable for negligence, and tried to get the case for that child dismissed.
James P. Tyrie first argued that his client should be treated as non sui juris (incapable of negligence) because of her age. There is a bright-line rule in New York that children under the age of 4 are incapable of being held liable for negligence. However, there is no established law regarding negligence for children over the age of 4, and Tyries client was 4 ½.
Justice Paul Wooten felt that there was not enough evidence presented to increase the age of the bright-line law, and that cases of negligence brought against children over the age of 4 should be decided by a jury.Using language from the 1928 case of Camardo v. New York State, as quoted in Gonzalez v. Medinaœin considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care . . . by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity.
Tyrie also argued that his client couldn’t be held responsible because a parent was present to supervise the child. Justice Wooten concluded that the presence of a parent does not automatically eliminate a child’s negligence.Wooten stated “Because a child above the age of four will only be non sui juris if it is impossible under the circumstances to draw any other inference, parental supervision is unlikely to affect the sui juris status of a child above the age of four unless the parent has taken an active role in encouraging the child’s conduct.The fact that the mother was supervising her daughter racing her bike down the sidewalk does not mean that the mother actively encouraged the child to strike the elderly woman with her bike.
Justice Wooten brought up an example of a child running across the street. A prudent 4 ½ year old child most likely knows the dangers of crossing the street without looking both ways.If an adult is present and that child decides to cross the busy road on his own without looking, there is a possibility that the child was negligent in doing so. The only way that child would automatically be non sui juris is if the adult told the child it was safe to cross the road, or encouraged the child to cross the road. The child could reasonably infer that it was safe to cross the road because a trusted adult told him/her to.
Justice Wooten’s ruling does not mean that the child is guilty of negligence for striking the 87 year old woman with her bike, but that it will be up to a jury to determine if she is negligent.
For additional articles on this case, check out The New York Times article entitled 4-Year-Old Can Be Sued, Judge Rules in Bike Case.
Homeowners One Step Closer to Level Playing Ground with Foreclosing Lenders
The last few years have seen an unprecedented amount of foreclosures in America, especially in New York. Though all homeowners have the right to fight the lenders who are trying to foreclose on them, most cases are unsuccessful. Many homeowners have been forced to represent themselves in foreclosure proceedings as the cost for legal representation is too high.
Even worse, most lenders have a clause in their contract allowing them to recoup legal fees from the homeowner if the lender wins the foreclosure case. This leads to even more financial debt for the homeowner if the foreclosure case is lost. Some homeowners won’t even try to fight their case out of fear of the potential legal fees they would be responsible for.
Fortunately, New York State Assemblyman Rory Lancman and State Senator Jeffrey Klein realized how disadvantaged homeowners were in foreclosure situations and took action.
New York State just passed the Access to Justice in Lending Act (AJLA), a law that allows homeowners to recoup their legal fees from the lender if they successfully defend their foreclosure case. Now, homeowners are one step closer to being on an even playing ground with their lenders.
Assemblyman Lancman hopes this new law will encourage those facing foreclosure that have a legitimate defense to seek legal representation and fight their case, according to the International Business Times. He also believes that firms specializing in foreclosures will be more willing to represent homeowners now, as there is a guarantee that their legal fees will be paid if they win.
Gersowitz Libo & Korek, P.C. is pleased that New York State is taking steps in the right direction to help struggling homeowners during this economic crisis.
The Deepwater Horizon explosion and oil spill has resulted in several people reconsidering statutory caps on liability. Along with extensive environmental damage to the Gulf of Mexico region and potential health issues for the people in the area, the Deepwater Horizon spill is expected to result in billions of dollars in economic damages. A federal statute however would limit BP’s liability for the spill. According to the Oil Pollution Act of 1990 (OPA), the liability for each oil spill incident from an offshore facility is the removal costs plus $75 million. The statute only provides an exception to the limit for cases of gross negligence, willful conduct, or violations of applicable federal safety, construction or operating regulations.
The magnitude of the Deepwater Horizon spill has prompted several environmental, consumer, campus and public interest groups to send a letter to the U.S. Senate requesting passage of the Big Oil Bailout Prevention Liability Act of 2010. The proposed legislation would raise the cap on liability for offshore spills retroactively from $75 million to $10 billion. In conjunction to this legislation, the groups have also called for the passage of the Big Oil Bailout Prevention Trust Fund Act of 2010, which would eliminate the $1 billion per incident cap on claims against the Oil Spill Liability Trust Fund.
The groups provided several reasons for the proposed legislation. First, it would allow those with economic losses to be compensated in a timely manner. Second, raising the limit on liability would reduce the need to tap into the Oil Spill Liability Trust Fund. This would force responsible parties to internalize more of the costs from an oil spill instead of shifting the burden to taxpayers. And third, the proposed legislation would compel oil companies to prioritize the environment and worker safety. The groups feel that raising the cap would provide the financial incentive for oil companies to change their behavior and hopefully deter future oil spills.
The OPA is just one of several liability capping statutes in place in the United States. Over half of the states have enacted statutes that place limits on non-economic damages. Several states have also promulgated statutes that limit punitive damages, or in some cases, ban them. The Deepwater Horizon spill has not only highlighted problems with the OPA, but with statutory caps in general. Caps prevent tort victims from getting fully compensated for their losses, just like oil spill victims under the OPA. And just as oil companies lack the incentive to modify their actions in order to prevent future oil spills, limits on damages also fail to provide tortfeasors the necessary financial incentives to change their behavior in order to prevent future torts. While it is yet to be seen how Congress will deal with the OPA, the Deepwater Horizon oil spill has certainly added extra perspective to the debate over capped liability and tort reform.