Category Archives: Accidents

Why Wasn’t The Driver Arrested?

Why wasn’t the driver charged with a crime? Two possible reasons

  1. There wasn’t sufficient evidence to prove a crime was committed; or
  2. The driver violated the NYS Vehicle & Traffic Law and can be charged with a violation but not a crime (see below).

Far too frequently, motorcyclists are killed because a driver wasn’t paying attention and we have often been asked by grieving parents, “Why wasn’t the driver arrested?”

Unfortunately, family members don’t seem to get an adequate explanation from police detectives. This article will provide an explanation for those family members who have not called us.

Insufficient Evidence

When a crime was or may have been committed, there may not be enough evidence for the district attorney to prove guilt.

For instance, a) a driver may have been drunk but the alcohol test was taken too late so it didn’t show the driver was drunk; b) The driver was on drugs but was only given a breathalyzer; c) maybe the police officer didn’t have probable cause; or many other reasons.

The Driver Committed a Violation

The driver may have made an illegal U-turn or illegally past a stop sign or red light but just because it’s illegal doesn’t mean it’s a crime. A crime is a misdemeanor or felony but all of these illegal acts are violations. A violation is not a crime.

If a driver just wasn’t paying attention, as usually happens when a driver is making a left turn, it is usually not a crime but a violation of the New York State Vehicle & Traffic Law.

Whether or not a crime has been committed, the family/estate of the deceased motorcyclist can bring a civil lawsuit for wrongful death seeking money damages and punitive damages against the people and or companies responsible for causing the motorcyclist’s death.

We are often successful in proving a violation of the New York State Vehicle & Traffic Law by filing a motion for summary judgment which requests an order of the court ruling that the driver is 100% responsible for causing the motorcycle accident and provides 9% interest on any amount awarded.

There are some motorcycle accidents where the police do not file charges but could have. In some situations, we can help to bring pressure upon the police and District Attorney’s Office to file charges against the driver responsible for causing the death of a motorcyclist. Please call us 7 days/nights/weekends for a free consultation at 1-800-HURT-911 | 1-800-487-8911.

Vehicular Crimes

A violation such as speeding is not a crime, however, there are situations which can elevate a motorcycle accident to a criminal offense, either a misdemeanor or felony, for causing the death of a motorcyclist.

The two most common vehicular crimes in New York are vehicular assault and vehicular manslaughter.

Following are some of the situations which can result in the arrest and prosecution of the driver causing a motorcycle accident:

Hit and Run —

When a driver leaves the scene of an accident (without exchanging identification, insurance and contact information) causing only property damage, it is a misdemeanor. When a driver leaves the scene of an accident causing injury, it is a felony. Usually, an arrest is not made where a driver leaves the scene of the accident and returns to the accident scene.

DUI / DWI / DWAI —

If a driver causes the death of a motorcyclist while intoxicated with a blood alcohol concentration (BAC) of 0.08 percent or higher or impaired by drugs, the driver will likely face serious felony charges including aggravated vehicular assault, criminally negligent homicide, vehicular manslaughter, murder in the second degree and jail or prison time (jail is for sentences of up to one year while prison is for sentences over one year).

The New York Department of Motor Vehicles lists penalties for an alcohol or drug-related violation. We believe the penalties are not severe enough.

We believe it’s time to treat a death caused by an intoxicated or impaired driver the same as Assault in the First Degree which (for a person with no criminal history) has a sentence of a mandatory minimum of 5 years and a maximum of up to 25 years. If you agree, send a letter to your county legislators, New York State Senators and the governor.

Reckless Driving —

The important and difficult question to ask and answer is what conduct constitutes reckless driving and what “unreasonably” means in the statute quoted below. I will not attempt to answer that question here but as an example, speeding at 10 mph over the speed limit would not constitute reckless driving while driving at 100 mph would constitute reckless driving.

It is unlawful for a driver to drive in a manner that may endanger another person. Reckless driving in New York means driving “in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.” Every person found to be driving recklessly shall be guilty of a misdemeanor. A misdemeanor is punishable by up to one year in jail. (Vehicle and Traffic Law §1212).

A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving and commits the crime of vehicular manslaughter in the second degree as defined by NY Penal Law §1212.

If you were a victim of a crime, you may be able to obtain compensation through a lawsuit but you can also file a claim with the New York State Office of Victim Services.

Call us 7 days/nights/weekends for a free consultation at 1-800-HURT-911 | 1-800-487-8911.

Be Aware Potholes Are Everywhere

March will soon be here. The mix of nice weather, potholes and sand is a deadly mix for motorcyclists. If you can, don’t start riding until May. If you can’t wait, watch for potholes and sand on curved areas of the roadway during March, April and May. Even May can be dangerous as you will see in the case below.

Every year, we get calls from motorcyclists hurt after hitting potholes or riding over sand left behind by snowplows. But for most of these accidents motorcyclists will not be able to obtain compensation from a lawsuit.

Municipalities have a prior written notice law which excuses them from liability unless they had prior written notice of the pothole or their workers caused the pothole. But it gets worse!

In Wilson v. Incorporated Village of Hempstead (120 A.D.3d 665), two witnesses who lived on the street where the motorcycle accident occurred phoned the Village because the pothole was so severe. The Village repaired the pothole, yet the patch quickly fell apart and the pothole reappeared. When a motorcyclist hit the pothole on April 30, the pothole “was in the same condition” as it was before the repair.

The Village Department of Public Works, stated that in March they only make temporary “cold patch repairs” of potholes and permanent repairs are done during warm weather.

First, the court ruled that oral notice, including by telephone or voicemail, is not prior written notice, even if it was then written by the village employee!

Second, the court ruled that the Village did not create the pothole when the patch failed because a municipality’s repair must immediately result in a dangerous condition and make the defective condition more dangerous than it was before the repair.

Although the pothole patch failed, the pothole wasn’t immediately dangerous and wasn’t more dangerous than it was before the repair. The plaintiff’s case was dismissed and he recovered nothing for his injuries.

In the case of Smith v. Town of Brookhaven (45 A.D.3d 567), the operator of a motor scooter was hurt when he hit a pothole. His lawyer hired an engineer who reported that failure to maintain a storm drain caused the street to constantly flood, freeze, thaw, and erode, eventually causing the pothole. On appeal, the court ruled that the pothole formed as a result of wear and tear and environmental factors and was not an act of negligence. The Town of Brookhaven was held not liable for the injuries.

It should also be noted that where proper prior written notice of a pothole is given, the written notice must identify the specific location of the pothole whether there is one pothole or many potholes on the street (Sheikh v. City of New York 53 Misc.3d 1214(A)).

Finally, don’t hit a pothole!

How do you protect yourself from cagers?

What’s a cager?

According to Urbandictionary.com, a cager is “a popular word among motorcyclists and bicyclists for four wheeled motor vehicle drivers. The term is often used in a derogative sense, because the car body effectively forms a cage, isolating the said driver from having to interact with other road users.”

Simply, cagers don’t see motorcycles.  Aside from motorcycle awareness campaigns and being on the lookout for cagers, the only other way you can protect yourself is financially with insurance coverage that insures you.

How to protect yourself from drivers who don’t see motorcycles

We registered the website name www.CagerProtection.com where you can find out how to protect yourself.  We give out Cager Protection.com cards and recently gave them out at FullThrottle Magazine’s Bike Night and at a Long Island ABATE meeting.

We are constantly trying to get the word out to motorcyclists about inexpensive underinsured coverage and it’s starting to work.

Four clients injured in motorcycle accidents

We have four new motorcycle accident clients in the last four days. All of them were hit by drivers that never saw the motorcycle.

One of those clients in Queens heard about underinsured coverage from a friend who was a previous client of ours and he purchased $300,000 underinsured coverage. The car which hit him, has $100,000 insurance coverage. Our client can now obtain another $200,000 from his own insurance company.

The second of the four clients in Nassau, had $25,000 uninsured coverage with no underinsured coverage. He has injuries worth at least $500,000 and the car which hit him has only $100,000 coverage.

The third client in Brooklyn has $25,000 uninsured coverage and was hit by an unknown car which fled the scene, so that’s all he can get even though his injury is worth a lot more.

The fourth client in Suffolk has a leg injury worth well over $1 million.  He has no underinsured coverage, but he’s lucky because he got hit by a car owned by a large corporation which will be responsible for the entire value of his injury.

What to do before you have a motorcycle accident

Before you ride again, please take a look at www.CagerProtection.com.

If you have any questions about your insurance coverage, please feel free to call Phil Franckel, Esq. 7 days/nights to discuss it for free at 1-800-487-8911.

If you’re involved in an accident, even if another lawyer doesn’t think you have a case, call us immediately for a free consultation.

May is Motorcycle Awareness Month — what to be aware of

While efforts to raise awareness of motorcycles on the road may help to avoid some accidents, you probably see drivers not paying attention every time you’re on the road. We see the problem every time we get a new client.

May is a good time to review your underinsured insurance coverage. Read my article in last month’s issue of Full Throttle Magazine “How much underinsured coverage do I need”. Have a question about insurance coverage, just call us and will be happy to help you out.

With so many drivers not paying attention, the most important part of awareness is that of the motorcyclist. Motorcyclists need to assume that every driver doesn’t see them.

The single most important time to be aware of drivers is when you see a car about to make a left turn. The vast majority of our motorcycle accident cases involve a car making a left turn. In every one of these cases, the driver just didn’t see the motorcycle.

Motorcycle accidents involving cars making a left turn include:

  • Cars coming from the opposite direction making a left turn in front of you
  • Cars coming out of a parking lot
  • Cars coming out of a side street
  • Cars coming out of a driveway

Although we have motorcycle accident cases where a motorcycle was hit in the rear or sideswiped, these four types of left turn accidents seem to make up the bulk of our law practice.

Consequently, until left turns are banned or technology in cars takes over, the single most important driver to look for is the one about to make a left turn!

We’ve been helping raise awareness of motorcycles on the road with our campaign BE AWARE MOTORCYCLES ARE EVERYWHERE®.  Every year, we give out lawn signs, bumper stickers, magnetic bumper stickers and large magnetic car signs. Look for our signs at motorcycle events or just ask Lee at Full Throttle Magazine.

Look for our motorcycle awareness billboards in May at Costco in Melville/Farmingdale and Westbury displaying BE AWARE MOTORCYCLES ARE EVERYWHERE®.

When a Police Officer said a hit & run accident was your fault

Robin Stissi was seriously hurt when she hit a guardrail on an exit ramp leading from Nichols road to the Long Island Expressway. There was no identification of another vehicle on the police report and the police officer indicated the accident was Robin’s fault.

We filed an uninsured claim for a hit-and-run accident with Robin’s insurance company which denied the claim saying she was not hit by a car. (You should never say you were “cut off” because contact with another vehicle is required in hit and run accidents)

We demanded an arbitration and they tried to obtain a court order permanently stopping us from proceeding to arbitration. However, we won the right to have a hearing in Suffolk County Supreme Court to determine whether a car hit Robin.

The insurance company had three witnesses testify in court at the hearing, the police officer and two drivers. But we showed that the police officer was not believable and that the two drivers did not see the accident occur.

When I spoke with the police officer prior to his testimony, he was very nice to me but had an obvious problem with our client and was very emotional about it. I still don’t understand exactly why he was so emotional but it appeared to me that he had a problem with motorcyclists and we used that to our advantage when cross-examining him.

The police officer testified at the hearing that Robin told him she lost control of her motorcycle on the sand but the supposed statement was not on the police report. In fact, the police report indicated for Robin “NO STATEMENT DUE TO INJURIES”. We also got the police officer to admit that he did not see any sand.

One witness stated on the police report that she saw Robin hit the guard rail and did not see another car. The other witness stated that on the road before the exit ramp, “I saw her let go of the bike and hands out to the sides in a flying motion”. The witnesses testified at the hearing to the same information they provided on the police report.

But our investigator previously obtained written statements from the witnesses about what they saw including the fact that both witnesses lost sight of Robin on the exit ramp and neither witness saw the accident occur. They only saw events leading up to the accident and after the accident.

While we showed that the police officer’s testimony was not believable and that the witnesses did not see the accident occur, Robin’s testimony was detailed, in agreement with the two drivers, and extremely believable. The judge did not believe the police officer and ruled that he found Robin was struck by a hit and run car. Her insurance company immediately paid the claim.

Robin Stissi provided permission to use her name in this article.

If you’re involved in an accident, call us immediately for a free consultation.

If you have a question or would just like to say hello, please call Phil Franckel at 1-800-HURT-911

Potholes

Every year, we get calls during March, April and sometimes in May from experienced motorcyclists hurt after hitting a pothole or riding over sand left behind by snowplows.

Of course, you can hit a pothole anytime of year. We even got a call from the family of someone who was tragically killed in September when her motorcycle hit a pothole on the Parkway.

At the Long Island ABATE meeting in Suffolk last month, I made an announcement to remind people to watch for potholes and sand on curved areas of the roadway during March and April if they don’t want to put off riding until May.

Tragically, David Decarle died at Peconic Bay Medical Center after his motorcycle hit a pothole in Riverhead on March 17.

This year, the roads will likely be bad even through the month of May. If you can, don’t start riding until at least May.

Motorcyclists who call us usually say they don’t think there’s anything they can do but call to find out if there is any possibility of a lawsuit. It’s good that people call us to find out because in some situations, it may be possible.

Motorcyclists will not not be able to obtain compensation from a lawsuit for most of these accidents because usually no one is at fault. However, there are circumstances in which a company or government can be sued for negligence. One of the best types of negligence is where a government or company work crew created the condition which caused the pothole.

If you had any kind of motorcycle accident, always call us for a free consultation.
1-800-HURT-911
1-800-487-8911

Be Careful When Riding Past a Car Wash

The first time, I thought it was unusual when I got a call from a motorcyclist who was riding past a car wash and crashed when the motorcycle skidded on the slippery roadway.

Then I got a second call for the same type of accident while riding past a car wash. We have represented several motorcyclists who had accidents when riding past a car wash.

Water and soap running into the roadway can make it slippery. However, two of the accidents were caused by employees at the car wash using a chemical to make tires shine. The employees were using the chemical at the end of the driveway right by the street. The chemical was tracked into the street.

I mentioned this problem to Greg Sheridan of Full Throttle Magazine New York and he told me about a similar problem he had on a slippery area when riding past the driveway of someone who was selling cars out of his house.

Allowing the discharge of chemicals and wastewater is a violation of law. When a law written to improve safety is violated, it may be possible to have the court rule that the car wash is negligent without asking a jury to make the determination as to whether a reasonable person would do the same thing. This is called negligence per se.

After a quick look on Google, I found someone who skidded and crashed after leaving a motorcycle wash where he washed the motorcycle himself. He was at least a block away when the accident happened. It’s possible that he didn’t fully rinse the soap off and didn’t fully dry his motorcycle. Take a look at the video

If your motorcycle skids on soap or oil left by someone or a business, we’ll obtain the evidence needed to prove how negligence caused your motorcycle accident.
Call 1-800-487-8911 for a free consultation

May is Motorcycle Awareness Month at Costco

May was designated Motorcycle Safety Awareness Month by the National Highway Traffic Safety Administration.  Most state governors and other organizations now proclaim May as Motorcycle Safety and Awareness Month.

We’ve been helping raise awareness of motorcycles on the road with our campaign BE AWARE MOTORCYCLES ARE EVERYWHERE®.

Last year, we gave out lawn signs and bumper stickers. This year, we’re also giving out magnetic bumper stickers and large magnetic car signs.

We also purchased billboards in the 5 Suffolk and Nassau Costco warehouse stores which will be displayed in the month of May.

Look for our billboards at LI Costco stores in May

Motorcycle Awareness Billboard at Costco

 

Legislator Thinks Suffolk Is For Couch Potatoes!

Suffolk County Legislator Thomas F. Barraga (R-West Islip) didn’t exactly say people in Suffolk County should be couch potatoes.  He just doesn’t believe people should be running outdoors or riding a bicycle or motorcycle because “Suffolk County is a suburban automobile community”.

Why?  Because people like Sandy Cutrone get injured by drivers who must have a superior right to be on the road.  I guess if Legis. Barraga gets his way, he might try to enact a law providing Suffolk drivers a superior right to be on the road over bicycles and motorcycles.  Fortunately, the N.Y.S. Vehicle and Traffic Law says otherwise.

Sandy Cutrone started riding her bicycle for exercise and in charitable events.  Last September, while riding her bicycle in a lawful manner and wearing a helmet, she was struck and injured by a car making a left turn.

According to Sandy Cutrone’s son, Matthew, the driver claimed said he just didn’t see her.  So Matthew Cutrone wrote a letter to Legis. Barraga asking for bike lanes “or maybe even just some warning signs” so that drivers know when to be careful of bicyclists.

Legis. Barraga’s brilliance became apparent when he wrote back, “My personal feeling is that no one who lives in our hamlet or for that matter in Suffolk County should ever ride a bicycle or motorcycle.”  The reason? Because “drivers expect to see other drivers on the road, not bicyclists and motorcyclists.”

There are several laws which say drivers are required to see bicyclists and motorcyclists.  In Sandy Cutrone’s accident the driver, who made a left turn when he struck her, violated section 1141 and several other sections of the N.Y.S. Vehicle and Traffic Law.  She is entitled to Summary Judgment on liability which means that that the driver is 100% at fault.

I often say never under estimate the stupidity of your adversary but stupidity is everywhere.  Keep it out of public office.  Every runner, bicyclist and motorcyclist should make sure not to vote for Legislator Thomas F. Barraga (R-West Islip) in the next election.

A Car Cut You Off – Will It Be on the Accident Report?

It happened twice in one month, first in Suffolk County and then in Nassau County.  I received a call from a motorcyclist who was injured when he put his motorcycle down to avoid hitting a car which cut him off.  Unfortunately, the Suffolk County Police Officer did not identify the car on the police accident report and the motorcyclist never got the identity of the car and driver.

Within weeks, I received another call from someone who was also injured when he put his bike down to avoid hitting a car which would have struck him.  Again, the Nassau County Police Officer did not identify the car on the police accident report!  This time, the caller had witnesses who wrote down the license plate number.

Why didn’t the police officers identify the other car on the police accident reports? Both motorcyclists were told by the police officers that the information about the other car could not be put on the police report because the motorcyclists can’t file a lawsuit against the car when there is no contact between the car and the motorcycle.  This is NOT true.

The police officers were incorrect.  Contact between the motorcycle and another vehicle is indeed needed to file an uninsured claim (which is when the identity of the other vehicle is unknown) but contact is NOT needed to file a claim or lawsuit against the car when the identity of the car is known.

In both of these accidents, contact was not necessary because the driver of the car did not leave the scene of the accident and the identity of the car was known.  If the motorcyclist put the bike down because of the negligence of the driver of the car, the motorcyclist does have the right to file a claim or lawsuit against the owner and driver of the car.

Not only were both motorcyclists injured, but their motorcycles sustained substantial damage and they didn’t have collision coverage.  The motorcyclist who was lucky to obtain the license plate number can now make a claim against the car for injuries and the damage to his motorcycle.

The other motorcyclist is not so lucky.  Because the identity of the car is unknown, there is no one to sue.  He can’t even file an uninsured claim because contact is needed for an uninsured claim.  The only option is to file a Notice of Claim and possibly a lawsuit against Suffolk County for the failure of the police officer to obtain the information which should have been obtained.

If you put your bike down because of a car which did not contact your motorcycle, insist that the police officer include the information about the car on the police accident report or at least on another piece of paper; make sure that you get the names and telephone numbers of all witnesses; and ask them to write down the license plate number of the car.

I have now sent letters to the police commissioners of Suffolk County Police, Nassau County Police and NYPD advising them of the potential liability if they do not change the policy or better instruct their officers.  Letters are also being sent to other police departments.

Read the letter to Suffolk County Police

Read the letter to Nassau County Police

A Suffolk County Police Officer didn’t do his job and omitted the owner and driver information of the car which caused this motorcycle accident.  Worse, the Suffolk County Police Officer told the driver (who did the right thing by stopping) that he could leave without taking his information!  The box for the information which is missing in the report is outlined here in red.  The smaller box outlined in red shows that there were two vehicles involved in the accident. 

Suffolk police report missing owner and driver information