"State Your Intentions, Please": Notice of Claim
Volume 4 / Edition 1
This Week; Focus On: "State Your Intentions, Please": Notice of Claim
Filing a claim is the first formal step in bringing an action for relief to the court's attention. Our focus this week will be on the New York State Court of Claims. Here at BNI, our experience has been that it is hugely beneficial for the legal professional's staff (admin, paralegals, investigators...) to understand how, when and why claims should be filed. It allows the entire team to remain focused on meeting the client's needs in a timely manner. Below are the most commonly asked FAQs regarding filing such a claim and, we've attached a blank fill-in claim form.
New York State Court of Claims, Frequently Asked Questions
Who can be sued in the Court of Claims?How do I commence a claim in the Court of Claims?When must a claim be served and filed?What is a Notice of Intention to File a Claim?What information must a Claim or a Notice on Intention contain?What happens once a Claim is filed?The law and rules governing practice in the Court of Claims is set forth in the
Court of Claims Act, the
Uniform Rules for the Court of Claims (22 NYCRR Part 206) and in the decisions of the Court of Claims and of appellate courts interpreting these statutes and rules.
1) Who can be sued in the Court of Claims?
The Court of Claims has jurisdiction over the State of New York as well as certain authorities that are sued under their own name. The court does not have jurisdiction over any individuals, including State employees, although claims may be maintained against the State based on allegedly wrongful conduct of employees for which the State is responsible under the legal principle of respondeat superior. Generally, State agencies do not have a legal existence separate from that of the State, and thus where a claim is based on alleged improper conduct of, for example, the Department of Transportation or the Department of Correctional Services, the named defendant should be "The State of New York."
Certain public authorities, which are considered to have a distinct legal existence, are sued in the Court of Claims under their own names. These include the New York State Thruway Authority, the City University of New York, and the Power Authority of the State of New York (for appropriations claims only). Other public authorities, such as the Dormitory Authority, are sued in Supreme Court pursuant to the procedure set forth in the General Municipal Law. One must always check the legislation that establishes a particular authority, often found in Public Authorities Law, when trying to determine whether the Court of Claims or the Supreme Court is the appropriate forum. Note that the Court of Claims Act governs procedure in the Court of Claims while the General Municipal Law sets forth the steps that must be followed to sue a governmental entity in Supreme Court. There is no overlap between these two schemes; i.e., the General Municipal Law has absolutely no application in the Court of Claims.
The Court of Claims has no jurisdiction over lawsuits involving county, town, city or village governments, agencies or employees. These governmental entities are all distinct from the State, and litigation against them is governed by the provisions of the General Municipal Law. For example, the Court of Claims typically has no jurisdiction over causes of action accruing at city or county correctional facilities, such as Rikers Island or any county jail, no jurisdiction over claims of negligent road maintenance involving county or town owned roads, and no jurisdiction over "premises liability" suits accruing in county or locally owned governmental buildings.
One common factor between suits against the State in the Court of Claims and suits against a local government in the Supreme Court is that action must be taken in both cases within a short period of time (typically 90 days, for tort claims). Thus, prompt and careful investigation to determine the appropriate defendant is essential.
2) How do I commence a claim in the Court of Claims?
A claim is commenced by completing the following steps (see Court of Claims Act §11[a]):
1. preparing a document called a "claim",2. filing a copy with the Clerk of the Court, and3. serving a copy upon the Attorney General, either personally or by certified mail, return receipt requested.
Filing occurs on the date when a claim is received in the office of the Chief Clerk, in Albany, not when it is mailed. Claims cannot be filed with the various district offices and judges' chambers around the State. A claim can be filed by: (1) personal delivery, (2) regular mail, or, (3) fax (please see our
Filing by Fax page.)
Note that when the defendant is the New York State Thruway Authority, the City University of New York, or the New York State Power Authority, that defendant must be served in addition to the Attorney General.
3) When must a claim be served and filed?
Section 10 of the Court of Claims Act sets forth the following time periods:
(1) appropriations claims - within three years after accrual.
(2) wrongful death claims - within 90 days after the appointment of the executor or administrator and within two years of the date of death.
(3) personal injury or property damage claims based on negligence or unintentional tort - within 90 days after accrual.
(3-a) personal injury or property damage claims based on negligence or unintentional tort of a member of the organized militia - within 90 days after accrual.
(3-b) personal injury or property damage claims based upon intentional tort - within 90 days after accrual.
(4) claims for breach of contract and any other type of claim not specified in section 10 - within six months after accrual.
(5) claims by correctional facility inmates for injury to or loss of personal property - within 120 days after exhaustion of the inmate's personal property claims administrative remedy (note - subdivision 9 is effective December 7, 1999).
Paragraph (5) of section 10 provides that if a claimant is under a legal disability when the claim accrues, the claim may be served and filed within two years after the removal of the disability
4) What is a Notice of Intention to File a Claim?
A Notice of Intention to File a Claim is an optional document that a potential claimant may serve upon the defendant to extend the time period to serve and file a claim. Generally, service (by an authorized method) of a Notice of Intention within the time period provided for filing a Claim extends the deadline for serving and filing a Claim as follows:
wrongful death - two years from date of death.
negligence or other unintentional tort - two years from accrual of claim.
intentional tort - one year from accrual of claim.
breach of contract and any type of claim not specified in section 10- two years from accrual.
Note that a Notice of Intention is not filed with the Clerk of the Court -- it is the act of service upon the Attorney General that extends the period in which to serve and file the Claim. Note also that where the defendant is an entity other than the State of New York, that entity must be served with the Notice of Intention in addition to the Attorney General.
5) What information must a Claim or a Notice on Intention contain?
Section 11(b) of the Court of Claims Act provides that a Claim "shall state the time when and place where such claim arose, the nature of same, and the items of damages or injuries claimed to have been sustained and the total sum claimed." A Notice of Intention must contain the same information except that the items of damages or injuries and the amount claimed need not be stated.
There are a number of appellate and trial court decisions addressing the question of how much information need be provided in Claims and Notices of Intention and how specific a claimant need be in providing the location where the claim accrued and the nature of the claim. The general rule is that the Claim or Notice of Intention must be specific enough to give the State notice of what the lawsuit is about and to allow for a prompt and complete investigation by the State. In addition, a Claim must set forth sufficient allegations of fact to state a cause of action.
6) What happens once a Claim is filed?
When a claim is filed, the claimant's attorney, or pro se (self-represented) claimant, will receive a letter from the Chief Clerk acknowledging the claim's filing, assigning a claim number and advising of the judge to whom the claim has been assigned. A Claim's venue is determined by the county where it accrued.
We hope the above information has been helpful and if there are any further questions (e.g. New York City claims...), please write or call in and let us know! If we don't have it, we'll find it.
BNI Investigators: Street smart: Net savvy.
I look forward to any comments you may have or and questions I can answer for you. Feel welcome to order free back-volumes (listed below).
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
"The Brakes Failed...": National Vehicle Defect LookUp
Volume 3 / Edition 5
This Week; Focus On: "The Brakes Failed...": National Vehicle Defect LookUp
Over many years of reconstructing vehicle accidents, we've heard innumerable variations of "the brakes didn't work" from the involved motorists. Until several years ago, it was a cumbersome task to research recall information through the various governmental agencies entitled with jurisdiction in collecting manufacturers' defect data.
The federal government, having completed scores of electronic upgrades, has now made it possible to quickly and succinctly research vehicle recalls/defects. As part of our normal motor vehicle investigation checklist, we now have the capability to research all governmental agencies at once and provide immediate results (for vehicles/products manufactured after 1972) regarding any year, make model vehicle recalls/defects, including those for tires, special equipment and child seats.
Please remind your client, however, if she truly suspects a vehicle defect, have her call the
Vehicle Safety Hotline toll free at 1-888-327-4236 to report safety issues.
BNI Investigators: Street smart: Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Mirror, Mirror On The Wall: Increase In Fake Drivers' Licenses
Volume 3 / Edition 4
This Week; Focus On: Mirror, Mirror On The Wall: Increase In Fake Drivers' Licenses
At BNI, we've begun to track a disturbing trend in the past year regarding driver identification. It's a fact that unless the driver involved in an MVA is personally known to the responding police officers, there has been no proven verification method, technique or technology available for definitive driver identification. In field investigations, we are now noting an alarming increase in fake drivers' licenses presented at accident scenes. This trend will continue to spiral upwards and draw into its vortex a disproportionately high number of potential drivers with immigration status issues.
According to a survey (released September 21) of motor vehicle administrators from 47 states, the States cannot possibly meet a May 2008 federal deadline to convert for making driver's licenses more secure. (The survey was compiled by analysts from the
National Conference of State Legislatures , the
National Governors Association and the
Association of Motor Vehicle Administrators.)
The 2005 Real ID act was passed ostensibly to keep driver’s licenses out of the hands of terrorists and to make it tougher for illegal immigrants to get state-issued IDs. Under RID (interesting acronym) all new and existing license applicants must present and states must verify: a form of photo identification, a document showing date of birth, proof of a Social Security number and a document with the name and address of the applicant. In addition, all state-issued driver's licenses must include an individual's name, address, date of birth, gender, signature, driver's license number, a digital photograph and several features to prevent counterfeiting.
Generally, making official Ids more secure is a good idea. And, in 2004, state governments and the federal Department of Transportation were in the process of setting new driver’s license security standards to fulfill some recommendations of a task force studying the terrorist attacks of Sept. 11, 2001. Four of the 19 hijackers in those attacks used state-issued driver’s licenses to board planes they later crashed.
But Congress pre-empted that process, attaching the Real ID provisions to an emergency budget bill and passing it with no hearings, little debate and without any input from the states.
States have objected to the law for several reasons, but mostly because it may require all license holders to make an in-person visit to get the new identification within five years of the 2008 deadline.
State workers also would become responsible for verifying applicants’ documents, but only one of five necessary electronic systems to accomplish that is available nationally, the report states.
Designing licenses to prevent counterfeiting will be an exhaustive and expensive undertaking.
But perhaps the strongest states' objection is that the U.S.
Department of Homeland Security has yet to issue specific guidelines for the law.
The negative impact of this undefined act and immigration issues now facing our state and country will be very real, immediate and harsh in states with a high immigrant populations such as New York. Without a viable, careful and compassionate plan enacted to obtain legal driver's licenses, many, driven by need, will opt for the flourishing false document underground that is very alive and well fed. Obviously, analyzing this one step further – many will not seek to carry necessary and adequate insurance policies.
BNI has coordinated, online and in the field, with private organizations and governmental agencies to resolve active false identification cases. If your firm encounters this issue, please feel welcome to call us with any questions you may have.
BNI Investigators: Street smart: Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
How Does This Work Again?? (MVA) Plaintiff FAQs
Volume 3 / Edition 3
This Week; Focus On: How Does This Work Again?? (MVA) Plaintiff FAQs
Often the investigative specialist is the first person to meet the potential plaintiff. When an investigator is directed by an attorney to conduct a client sign up survey in the field, she generally encounters an injured person with no prior litigation experience but with many questions. BNI has prepared an FAQ sheet specifically for plaintiffs involved in MVAs.
Car Accidents
Q:
Are photos of the accident scene helpful? A: Absolutely.
If possible, make sure your camera has the date imprinted with the date the photo was taken. If your camera does not have this function, when you develop the photos, make sure you write the date the photos were taken, in smudge-proof pen, on the back of the photos.
If you are using a digital camera, DO NOT MAKE ANY ALTERATIONS TO THE PHOTOGRAPH WHEN YOU PRINT IT OUT! Attach a note with the digital prints indicating the date the photos were taken, by whom, the type of camera, and the type of storage media you used (memory stick, smart card, etc.)
Q:
If I live in Brooklyn, and my car accident happened in Queens, where do we bring the lawsuit?A: The choice of where to bring suit (venue) is the subject of many legal cases. Generally, the plaintiff (the injured victim) gets to choose where the case will be heard. It could be the county where the victim resides, or the county where the owner of the other car lives. If there was a rental car or a leased car involved, it might be the county where the leasing company maintains their main office. Usually, the site of the accident is not where the case is brought, unless of course one of the parties lives in that County.
Q:
If an insurance adjuster calls me after my accident to ask me questions, can I talk to him?A: The general rule of thumb is: if an insurance adjuster calls to talk to you, politely tell them you would prefer that they speak with your attorney and provide that phone number.
Q:
A neighbor of mine broke her leg in a car accident. She got a lot of money. This also happened to me - I broke my nose in a car accident. Why isn't my case worth as much as hers?A: Each case is different. Each injury affects a person differently (even if you broke the same bone):
1. Your pain tolerance might be different,
2. Surgery may be required in one case and not the other and or
3. She might have been an actress and her broken bone means she lost months from work. It's important to know how your injury may affect your daily life. It may impair your ability to do your daily tasks like tying your shoelaces, taking a shower, making breakfast, going to the bathroom, holding groceries and similar activities. Keep notes of these restrictions as this matter continues.Since everyone is different, and their injuries affect each person differently, the value for each case is different.
Q:
In a car accident case, why is the trial split into two parts?A: This is called a 'bifurcated' trial. The reason is to see first if there's liability against the other driver (liability trial). If there is, the trial will proceed to damages (damages trial). If there's no liability against the other driver, the case ends there, and there is no need to continue the trial to have a jury evaluate your injuries. In some cases, the damages trial is tried days or even weeks later than the liability trial. Often, the insurance company waits to see if their client bears any responsibility before deciding whether to settle the case. Often a settlement offer will happen only after a liability verdict against their client. (This is why an investigative specialist is called in - to gather all of the facts regarding chain of events and potential liability issues.)
Q:
What does speed, time and distance have to do with my car accident case?A: Everything. If just two of those factors are known (example speed and distance) the attorney and insurance representatives can easily calculate the third (time it took you at that speed to travel that distance). It's also an issue of credibility. If you do not remember, just tell the truth.
And, there are usually witnesses who can fill in those knowledge or recollection gaps in auto accidents.
Q:
My car was totaled in a car accident. My insurance company wants to pay for the car and then get rid of the car. Should I allow this?A: Before you make any decision, make sure you have date-stamped photographs of your car after the accident.
Q:
I'm just bruised but my car was totaled. Do I have a case?A: You probably would have a property damage case for the loss of your car. If you have bruising, it is up to each individual attorney to decide if he wants to accept your matter.
B
NI investigators stand ready to complete a thorough MVA investigation, particularly the crucial initial phase of a case: from obtaining police reports, to in-house sign ups to locating auto insurance of all involved parties (and their respective households, if needed).
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Take a Number Please: Uncovering Professional Defendants
Volume 3 / Edition 2
This Week; Focus On: Take a Number Please: Uncovering Professional Defendants
BNI is often asked to conduct asset searches in situations where the injures incurred exceed the available insurance policy limits. Generally, the legal professional requesting this service is aware that the defendant's assets are limited but due diligence is still required.
Especially in a substantial-injuries matter, before launching into an exhaustive and potentially expensive asset search, the very first step undertaken should be a quick search through an electronic court records database. At such a site, one can search by State Supreme or County Clerk court records (both by county), index number, year the lawsuit was initiated, plaintiff or defendant name.
This quick yet comprehensive court records search will provide a important snapshot of the defendant's litigation history and can influence the scope of an asset search. Of course the investigative specialist provides a thorough asset search regardless but it is advantageous for the legal professional to know if his client is standing in a long line of potential creditors. (This search, combined with a bankruptcy, liens and judgment search will provide a clear understanding of the defendant's financial status and chances for recovery.)
Feel welcome to contact BNI regarding our accurate, comprehensive and rapid turnaround asset searches.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Drawing a Line in the Cement: NYC Sidewalks Rules & Regulations
Volume 3 / Edition 1
This Week; Focus On: Drawing a Line in the Cement: NYC Sidewalks Rules & Regulations
Hopefully not prescient for the Labor Day celebration, we thought we'd tackle the issue of NYC's sidewalk maintenance, liability... early this year, before any unscheduled skating events occur on the City's 12,750 miles of sidewalks.
The following information pertains to the sidewalk rules and regulations specifically of the 5 boroughs of New York City.
- Sidewalk Maintenance
- Sidewalk Use
- Sidewalk Obstruction
- Street Obstruction
- Snow and Ice Removal
Sidewalk Maintenance
The sidewalk in front of any building or lot must be maintained and repaired by the property owner. Any defects must be promptly repaired. The owner of all property with four or more families is responsible for any injury caused by the owner's failure to maintain the sidewalk in a reasonably safe condition. If the repair covers more than 25 square feet of the sidewalk, the owner or contractor must obtain a Sidewalk Replacement Permit from the Department of Transportation.
Sidewalk Use
All businesses intending to use a portion of the sidewalk for daily operation, or who wish to attach to or place upon the sidewalk any items such as canopies, bike racks, benches, planters, or who wish to use a basement vault, must obtain a renewable permit or a revocable consent from the Department of Transportation. The placement of any item on the sidewalk must not interfere with the use of the sidewalk by pedestrians. A minimum of 8 feet or half the sidewalk, whichever is greater, must be kept clear between the item and any obstacle on the curbside, such as hydrants and traffic control devices. No business may prevent parking or paint the curb, sidewalk, or roadway to advertise the business.
Sidewalk Obstruction
Businesses are responsible for keeping the adjacent section of sidewalk free from all obstructions such as refuse, refuse containers, and A-frame signs to allow the free flow of pedestrian traffic.
Street Obstruction
It is illegal for anyone to place or leave any box, barrel, or other moveable property (regardless of ownership) upon any public street or public place. This law applies to construction or demolition containers, which may only be placed on the street with a permit from the Department of Transportation. In addition, restaurants may not place obstructions such as stanchions or cones in the street to prevent parking or to provide ingress/egress for customers.
Snow and Ice Removal
Snow and/or ice must be removed from the sidewalk within four hours after the snow has stopped falling, or by 11 AM if snow has stopped falling after 9 PM the previous evening. If the snow or ice becomes so frozen that it cannot be removed, the sidewalk may be strewn with ashes, sand, sawdust or similar suitable material within the same time limits. The sidewalk must be thoroughly cleared as soon as weather permits.
A BNI site survey is then followed up with a real property ownership check, as of the date of loss.
BNI is highly experienced in conducting site survey investigations; specifically in identifying and professionally recording causal factors in property/premises matters.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Does iPod = eBay? Trademark Protection and Dilution
Volume 2 / Edition 11
This Week; Focus On: Does iPod=eBay? Trademark Protection and Dilution
Throughout our years in business, BNI has conducted many corporate trademark and copyright infringement investigations - ranging from the sale of illegal post-concert product at multi-venue performances to unauthorized re-published literary works (which were later claimed by the perpetrators to have been obtained through "subconscious creative osmosis").
An interesting situation we are all watching at this time is Apple's claim of the word "pod" as its own trademark in all situations. The worry is that any use of "pod" in a trademark could dilute the the "iPod" mark.
First, let's define what a trademark is. A trademark is any set of words or a design that identifies goods or services with a particular origin.
Next then, what is trademark dilution? Trademark dilution is reserved for strong trademarks. Those trademarks with the strongest in identity in a market cannot be used in other noncompeting markets. This is to avoid "diluting" the strong, recognizable mark by its use in noncompeting markets. Example, a line of housewares bearing the name eBay, completely unrelated to the EBAY online auction giant, is at least, trademark infringement and certainly trademark dilution. But can Apple make the same claim for all uses of the word "pod" based on its popular "iPod" portable music device?
Of course there are many other factors that will come into the decision once handed down. Will "pod" be disallowed for usage in other noncompeting markets? Will the use of "pod" in other nonApple related products blur the connection in the consumers' minds between Apple's mark? Is the "iPod" mark somehow weakened by a defendant's other "pod" use? What if the defendant's "pod" use is unsavory, unwholesome or for a vastly inferior product?
The two issues in any upcoming fights will be: Is "iPod" as a mark strong enough to warrant that it can be diluted and can any mark with "pod" in it dilute "iPod"? Given that podcasting is already in popular use and most podcasts (70%) are accessed through Windows, it will certainly be interesting to see what the future holds in this specific situation. Also, Apple has a new trademark "Numbers" for its not-yet-in-use spreadsheet program. )We're researching the trademark registration for the word "common" as we go to print... )
Feel welcome to contact BNI with any trademark, copyright and or patent investigations you may need conducted.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
The 411 on 911: National PD/Law Enforcement Contact Info
Volume 2 / Edition 10
This Week; Focus On: The 411 on 911: National PD/Law Enforcement Contact Info
There is reason to believe that a Shermantown, NY police accident report, relating to your client's accident, may exist. You've googled "shermantown ny police department". The first 25 results relate to General Sherman and an Upstate B&B proudly displaying a post Civil War notice that "Gen. William Tecumseh Sherman slept here". (There is no mention of Mrs. Ellen Sherman... or any other woman for that matter...
. An operator in the possible Shermantown area provides a general number for the "local police department". A call to that number goes something like this:
"Police. Is this an emergency?"
"No. I'm trying to get a copy of a police accident report..."
"Where did the accident happen?"
"In Shermantown, I believe."
"This is the Kingston Police Department."
"This isn't the Shermantown Police Department?"
"No, sir."
"I'm a bit confused..."
"When they are out, their line is forwarded to our department."
"Oh. Is there a better time to call them directly?""Don't know. I guess when nothing happens."
"Ah, okay. I see. Well, thanks. I guess I'll try again until I can get through to them."
"Uh, there is a different number you can call to get through directly that isn't forwarded to us."
"There is?"
"Yes, I guess they don't list it to not get overloaded."
"So there is at least one person there right now?"
"Where?"
"The Shermantown Police Department office."
"It's a building, sir.""Right. so there is someone there?"
"Well, usually at least two people. You have to have the desk sergeant there and well, he needs to have a police officer to do things in case he has to do something."
"Gotcha. Can I have this other number to the Shermantown Police Department please?"
"Sure thing. 845-555-6789."
"Thank you. You've been very helpful."
"Sure. If there is anything else I can help you with, you just call back. My name is Harris."
"Will do. Thanks, again.""Do you have our direct number?"
"No, why?"
"Well, if you have to call back, it's 845-555-9518. Just ask for Harris."
"Ok, great. Thanks again!"
Next time go to www.usacops.com. They list nearly every PD, sheriff's office and other law enforcement agencies direct contact numbers.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
If you haven't already done so, get your vacation in - 3 weeks to Labor Day!
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Step On A Crack...: Slip/Trip & Fall Intake Survey
Volume 2 / Edition 9
This Week; Focus On: Step On A Crack...: Slip/Trip & Fall Intake Survey
The very first edition of the Beacon Bulletin provided our readers with an investigator's witness statement checklist in the aftermath of a motor vehicle accident. This week, we focus on the primary information required in the event of a slip/trip and fall situation involving your client.
1. CLIENT PEDIGREE (to include name, address, phone #, DOB, SSN,employment/scholastic and licensed driver info and emergency contacts)
2. WEATHER CONDITIONS (including for interior falls in that proper matting may not be present at the location of occurrence)
3. LIGHTING CONDITIONS
4. SURFACE DESCRIPTION (sidewalk, hallway, stairs...)
5. DEBRIS/DISREPAIR/CONSTRUCTION PRESENT
6. DESCRIPTION OF SURFACE (concrete, torn matting, tile...)
7. PRESENCE OF ANY WARNING SIGNS (e.g. wet floor cones), TAPE, HANDRAILS
8. DIRECTION OF TRAVEL OF PARTICIPANTS (northbound, descending steps...)
9. DESCRIPTION OF ACCIDENT (detailed)
10. ALCOHOL/DRUG INVOLVEMENT
11. WHERE WAS THE CLIENT GOING?
12. RATE OF WALK (normal gait, walking briskly... )
13. TYPE OF SHOES WORN
14. CONDITION OF SHOES (new, good, worn.. )
15. DOES THE CLIENT STILL HAVE THE SHOES?
16. OBSERVABLE INJURIES SUSTAINED (detailed)
17. MEDICAL ATTENTION RECEIVED AT SCENE
18. EMERGENCY/OFFICIAL VEHICLE AND PERSONNEL RESPONSE
19. STATEMENT(S) MADE AT SCENE
20. ADDITIONAL WITNESSES
21. DOES THE CLIENT KNOW OF ANY OTHER SIMILAR PRIOR INCIDENTS AT SAID LOCATION?
22. HAD THE CLIENT COMPLAINED TO MANAGEMENT OF EXISTING RELATED CONDITIONS?
23. DOES THE CLIENT KNOW OF ANYONE ELSE WHO MAY HAVE MADE SIMILAR PRIOR COMPLAINTS TO MANAGEMENT?
24. COPY OF CLIENT'S LEASE.
25. MANAGEMENT INFORMATION, IF KNOWN.
26. MUNICIPALITY INVOLVED?
With regard to the last checklist item, your investigator can then run an online real property check. City owned property information is immediately accessible. In many cases, private property information is also available online and may also yield homeowners insurance information.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
The Old Ball & Chain: NYS Inmate LookUps
Volume 2 / Edition 8
This Week; Focus On: The Old Ball & Chain: NYS Inmate LookUps
Currently, the US prison system is host to 2,000,000 guests. Preferably, the United States would hold the global number one position in the fields of technology, medical research or even firecracker repair technique. Unfortunately, universally, we are #1 in the sheer number of prisoners in our penal system.
Several years ago, a BNI investigator trainee was conducting a routine client locate. (Civilians would be amazed at the number of clients who do not advise their attorneys that they have relocated). His supervisor noticed he'd included a prison inmate lookup in his checklist. When asked why he would include that item in a routine client locate, his response was, "Well, you never know and it's free". Out of the mouths of babes.
It became a standard search in our all of our locate checklists and has been an invaluable tool in difficult-to-locate clients, witnesses and other subjects.
In this Bulletin, we pass on the official New York State Department of Correctional Services website.
www.docs.state.ny.us
Last week, one of our newsletter recipients asked curiously, "Your weekly Bulletin certainly shares a lot of information. Why would you give this away for free?" A good investigator's job is to piece together results from many different information sources; across multi-platform delivery. We prefer, when we our services are retained, to have as much background information as possible. If it is public information, why not share it with the legal professional? When it becomes necessary to hire an investigator, it is usually in a challenging situation. For this reason, many attorneys realize the value of a good relationship with an experienced, creative and curious investigator.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc
One For the Road: Dram Shop Cases
Volume 2 / Edition 7
This Week; Focus On: One For the Road: Dram Shop Cases
Historically, a person who provided alcohol to another was NOT liable to a third party who was injured as a result of excessive alcohol consumption. The prevailing view was that the drinker was solely responsible for his alcohol consumption. In 1963, the New York Legislature created an exception to this rule. Under the Dram Shop law, a third party injured as a result of excessive alcohol consumption may sue any person who unlawfully sold or unlawfully procured alcohol for the drinker.
In the full swing of summer now in the Northeast, there is an historic, recorded elevation of alcohol involved incidents - from drunk driving arrests to gross intake fatalities. Our focus this week is on the structure of a dram shop case.
It is the responsibility of the establishment and its employees serving alcohol to patrons to act preemptively to avoid over consumption of such within their place of business. After an alcohol related incident has occurred, the patron's legal representative needs to move quickly and determine the negligent and/or complicit factors of the serving establishment. Our experience in these types of cases has enabled us to formulate the following investigative outline:
1. Obtain legal name of the corporate entity. This is done through the NYS Division of Corporations.
NYS Department of State Corporation and Business Entity Database2. Obtain licensing information through the NYS Liquor Authority. (Their site can be searched by premises or trade name, license number, premises location or name of principal.)
New York State Liquor Authority3. Also through the NYS Liquor Authority, obtain prior incident information on the establishment in question.
4. Construct a timeline for the patron's activities on the day of occurrence.
5. Obtain a full list of potential witnesses (including prior to any alcohol related incident, on the day in question). (We recommend the following reverse search engine for names, addresses and phone numbers :
www.argali.com.) Obtain witness statements from such.
6. Obtain a full list of employees on the date and time of occurrence.
7. Conduct a criminal background check on primary employees.
A thorough investigation conducted in the above manner should yield the background and information an attorney will need to successfully pursue a dram shop case on his client's behalf - or, determine from the start if there is, in fact, a viable case.
Many of the searches related to a dram shop case can be conducted online, enabling the investigative specialist to concentrate on the field investigation as well.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Don't Drive Yourself Crazy: Availability of Motorist Records
Volume 2 / Edition 6
This Week; Focus On: Don't Drive Yourself Crazy: Availability of Motorist Records
While we suspect the price of gasoline will keep some people off of the road, it probably won't stop those drivers we want from heading down our streets and highways.
One of the most frequent requests an investigator receives is to obtain a driver's history. And, as mobile as our society is now, many of these are requests for out-of-state records.
We've spent years compiling and restructuring driver's record data and the best sources for obtaining such. Below is a list of states that have made driver records publicly available, the information contained in such, the information required to perform the search and the turnaround times.
States Permitting Public Driving Records: All except: Arkansas, Connecticut, Hawaii, Illinois, Iowa, Maryland, Mississippi, New Jersey, Oklahoma, & Rhode Island. (Some states, such as Massachusetts, may require a manual records search.)
Information Provided: Traffic Violations, Suspensions, DUIs, and Personal Information.
Information Required to Conduct Search: Driver License #/Name or Name/DOB/SSN, State, and the reason for the record. (Our suggestion for a permissible purpose is "in anticipation of litigation".)
Turnaround Schedule: 1 - 3 business days.
BNI investigators: Street smart; Net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Identifying Your Subject: Free Birthdate Locates
Volume 2 / Edition 5
This Week; Focus On: Identifying Your Subject: Free Birthdate Locates
Our focus this week remains on correctly identifying a subject's date of birth.
Once in a great while, we come across a gem of a site that provides quick, easy and free information with just one click. Before investing in a case, it is usually to the trial lawyer's benefit to make sure she has the correct information to pass on to her investigator. Additional, and accurate information can often yield more timely and cost efficient results.
For those reasons, this week's info nugget is : www.birthdatabase.com. All you need is your subject's name and general age. (We've tested it to +/- 8 year range. E.g. If a subject is 30 years old.. you can enter from 22 to 38 and it will result in his/her complete date of birth. Bear in mind for very popular surnames, this site may not reflect advantageous information.)
BNI investigators: Street smart; Net savvy.
Hoping all have recovered from this holiday week, I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc
Don't Let The Clock Run You: Investigation Turnaround Times
Volume 2 / Edition 4
This Week; Focus On: Don't Let The Clock Run You: Investigation Turnaround
Times
Hmmm, it's 9:30 a.m. I'm here, so is def. counsel. The witness looks fine;
the court reporter is setting up his machine... Why does something not feel
quite right? Oh, no! The other witness!! The stronger one. This one here might
as well been asleep during the accident for all she states she can remember...
To properly pace a file, it's important to coordinate with your investigator;
to insure she has enough time to satisfactorily complete her assignment. In
this week's Bulletin, we'll lay out a turnaround timetable for the most common
requests an investigator receives and the information necessary to satisfy these
requests. (These tips are general rule-of-thumb ... not literal as each matter
is case specific.)
--------------------------------------------------------------------
Subject Locate; Full name, last known address and phone numbers, last known since (give month and year), known emergency contacts, DOB, SSN (if known); 1 – 10 business days
Basic Asset Search(In State); Full name, last known address and phone number, DOB, SSN (if known); 2 – 4 business days
Witness Statements; Full name, last known address and phone number, DOB and SSN (if known), date of loss, relation to client (non related witness, store owner…); 1 – 2 weeks (pending witness did not relocate or go on vacation)
New Client Sign Up; Full name, address and phone number, phone number of alternate contact, blank retainers and releases, attorney's business cards; 24 – 48 hours
Site Survey; Full name, phone number, exact location, date and time of loss, cause of loss, if known; any extraordinary details (ongoing construction @ location, conditions occur at a specific time…); 2 – 7 business days
Discuss beforehand the file details and any upcoming important case dates you
may have. Cushion your request by several weeks to allow for the unforeseen
(witness has moved, records are complex and more difficult to obtain, subject
is on vacation... ).
Your investigator should be able to give you a fairly accurate turnaround time
as she is the one scheduling and directing the request. In cases where the investigator
is requested to research information, be specific regarding your direction with
your case and the results you are looking for. If everyone is on the same page;
the results will fall in line - and in a more timely manner.
BNI investigators: Street smart; net savvy.
I look forward to any comments you may have or and questions I can answer for
you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
The Numbers Game: Decoding VINs
Volume 2 / Edition 3
This Week; Focus On: The Numbers Game: Decoding VINs
Generally, a police officer references an automobile's VIN from the owner's/driver's registration. It's an extraordinary Police Officer that actually physically checks the VIN on the car's body.
Quite often, situations have occurred wherein a wrong digit was entered on a police accident report, leading to delays in moving the file along. Also, as recently occurred in one matter: the defendant driver had altered the VIN on the insurance card (most likely thinking, as wonderfully creative criminal minds can, that this would allow him to escape detection and responsibility). This, of course, led to a deeper probe into the driver's identity and it was uncovered that he actually had a record for possessing forged instruments. Better to know at the outset of a case.
A unique site now offers VIN decoders as well as links to each State's DMV office.
http://www.vehicleidentificationnumber.com/vehicle_identification_numbers_vin_detail.htmlBNI investigators: Street smart; net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
There Was An Old Woman Who Lived... - Real Property Searches
Volume 2 / Edition 2
This Week; Focus On: There Was An Old Woman Who Lived... - Real Property Searches
Regardless of one's opinion and experience of and with municipal bureaucracy, every so often, (perhaps a public school project gone awry), the City gets it right.
This week's Gold Merit Star for compiling and distributing real information online goes to the NYC Department of Buildings, specifically for their BIS (Building Information System) program.
By following the link posted below, the site visitor can easily and quickly find the following information:
- Property Owner (It is, in fact, the Old Woman...)
- Block, lot and easement number of said property
- Any and all related filings (COs, Permits...) and violations (from elevator to structural citations...)
http://www.nyc.gov/html/dob/html/bis/bis.shtmlBy combining several official NYC agency databases, BNI netware specialists were able to take this real property information availability one step further and we are now able to provide deed, mortgage (satisfaction, transfer..) and other related property documents (via email or fax) for any recorded property in all five boroughs of NYC.
BNI investigators: Street smart; net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Did You Cover All Bases? Intake Surveys
Volume 2 / Edition 1
This Week; Focus On: Did You Cover All Bases? Intake Surveys
Gathering information, quickly and thoroughly, after an injury or loss is the first and most important step in any accident investigation.
The components of a standard sign up package should include (but are not be limited to) the following:
1. Retainer
2. Intake Survey
3. Information Releases
Obviously, the retainer should be completed and signed first and then a comprehensive interview should be conducted via the Intake Survey. The three standard intake survey types are:
1. Motor Vehicle Accident Intake Survey
2. Negligence Intake Survey
4. Slip/Trip and Fall Intake Survey
Each intake survey is specifically designed to obtain the necessary information for each case type. The legal professional may certainly need to know the existence of additional auto insurance policies in a victim's household; part of the MVA Intake Survey. In Slip/Trip and Fall matters, a copy of the injured party's lease is helpful, noting, of course, building owner and/or management information. And, in negligence cases, knowledge of the existence of a homeowner's insurance policy may expedite a case, from notice to settlement.
Ideally, the investigator may instruct the potential client to sign the numerous information releases while conducting the intake survey, thereby, completing the assignment in a timely manner and allowing the injured party to feel secure and able to return to recuperating, knowing his lawyer has the matter well in hand.
Feel welcome to contact our offices and request any - or all - of the three intake surveys. (Each survey is 4 - 5 pages in length.) Coupled with a DMV check or last owner search and or site survey; today's investigator should be fully prepared to complete the initial groundwork in a comprehensive and expeditious manner.
BNI investigators: Street smart; net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
It Wasn't the Right Leg?? MedMal Research
Volume 1 / Edition 9
This Week; Focus On: It Wasn't the Right Leg?? MedMal Research
Recently, BNI was asked to research the existence of directed protocol for the use of catgut v. synthetic sutures in the case of a surgical stapler misfire in a colectomy operation gone seriously wrong. Of course, all of the law professionals recognize the implied question in that case description.
The reason it was stated that way is that the surgeon involved insisted that no protocol existed and that procedure in a surgical stapler misfire is at the surgeon's discretion. Well, not so, according to the Food and Drug Administration; the governing authority regarding medical instrumentation regulation. The FDA is notified by the surgical instrument manufacturer of all reported surgical stapler misfires. The surgeon in question apparently believed that the operative word in this directive is "reported". He stated he had not reported the misfire. Contact with the manufacturer indicated that, in that they train the surgeons in the use of the instruments, there is indeed a procedure established and that must be adhered to for a surgeon to be qualified to use the specific instrument. Misfires were specifically addressed and sensibly so, from a liability standpoint.
Unfortunately, that is not the most significant aspect of this case. Said surgeon then proceeded to use catgut sutures which are specifically contraindicated for the procedure performed, due to the infection development and proliferation potential with natural materials. His defense argument on that point was that choice of suture material, again, as the misfire reporting, was at the surgeon's discretion.
Perhaps for the plaintiff counsel's own knowledge, while not admissible, research for previous malpractice filings and settlements (positive) for this surgeon was also conducted. Not surprisingly, "surgeon's discretion" was cited for similar prior situations.
There is now a 45 year old man tied to a colostomy bag because of said "discretion". But at least there is now the certain knowledge that protocol does exist and, hopefully, will be fully enforced to prevent these unnecessary and horrific injuries.
In past editions, the physical aspects of investigative work has often been addressed (i.e. field investigation, site survey procedure, evidence collection...). Today's investigator must also be very skilled at uncovering electronically stored information.
BNI investigators: Street smart; net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
STEP ON A CRACK... The Search for HOMEOWNERS INSURANCE
Volume 1 / Edition 8
This Week; Focus On: STEP ON A CRACK... The Search for HOMEOWNERS INSURANCE
As we all know, unlike driving a car, one can legally own a home without homeowners insurance. But, if the homeowner financed the purchase with a mortgage, the lender will most likely require homeowners insurance coverage. In the case of a co-op or condominium ownership, the board will generally require the buyer to purchase homeowners insurance. After the mortgage is paid off, however, there is no oversight regarding homeowners insurance.
Below please find a list of helpful contacts of companies authorized to write homeowners insurance policies in New York State, per the NYS Insurance Department.
Note: Contacts for this edition coming soon!
BNI's investigators are especially skilled at locating insurance policies; priority one in any civil recovery matter. Feel welcome to inquire about our homeowners' insurance policy locates. Turnaround time is generally within 72 - 96 hours.
BNI investigators: Street smart; net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina Marie Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
Lining Your Sites Properly; Accident Location Surveys Done Right
Volume 1 / Edition 7
This Week; Focus On: Lining Your Sites Properly; Accident Location Surveys Done Right
At BNI, standardization is the key word. Accidents/incidents generally occur without notice (one would hope). An investigator is dispatched to the accident location as soon possible to ascertain and record conditions that are representative of those existing on the date of loss. Often, she is armed with a minimum of facts and direction as the accident information is just beginning to filter in. To minimize incomplete information gathering, we've found that applying a standard format to this type of field investigation yields the best results for our clients.
This week, we will concentrate on site surveys. Usually designated for trip/slip and falls, a site survey needs to relay to the attorney and insurer the location of incident and the conditions present thereat on the date and time of loss. The site survey should provide a clear, accurate and concise picture of the area of incident and note the contributory factors involved in your client's matter.
To that end, we've provided an outline of site survey components:
1. Photographs:
- initial overview (including identifying street signs, should be taken clockwise, encompassing an entire 360 degree view of the L/A, preferably beginning in the north direction)
- from the victim's perspective: begin with far shots; end with close ups of defect/contributory factor
- defect shots: outdoors: 1. avoid shade and shadows, if possible, and 2. include a marker (pen, ruler, notepad... ) to show relative size of defect; indoors: defects are easier to identify in photographs against a contrast background (e.g. for broken light colored steps, place a dark notebook pad behind the defect, in an upright position and photograph)
2. Site Survey:
- date of investigation
- time of investigation
- site description (sidewalk i/f/o commercial property, overhead exterior drainage pipe)
- ground type (pavement, roadway... )
- ground material (concrete, rubber matting... )
- lighting conditions (poor, fair, good)
- ground inclination/declination present
- site assessment (defects, disrepair, abnormalities - e.g. excess water from drainage pipe)
- contributory factors (water tends to pool at this location and form into black ice, causing a dangerous and known slippery sidewalk condition)
3. Diagram:
- drawn from the north perspective (as all maps are drawn to the north)
- notes relative position and defect dimensions
Remitting the site survey in digital format greatly decreases turnaround time and the risk of information loss due to delayed or misdirected mail.
Please feel absolutely welcome to request our standard Site Survey form.
BNI investigators: Street smart; net savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina Marie Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
SHOW ME THE MONEY!; Arm Yourself Against Bad Faith Insurance Delays
Volume 1 / Edition 6
This Week; Focus On: SHOW ME THE MONEY!; Arm Yourself Against Bad Faith Insurance Delays
2 years, 30 phone calls and a partridge in a pear tree later, the seemingly standard motor vehicle accident claim you filed on your client's behalf is still unresolved.
Recently the New York State Senate and Assembly spotlight has turned to bills pending that would amend the Insurance Law to provide policyholders with a private right of action against an insurer who delays or denies a legitimate claim. There could be, under certain circumstances, punitive damages in addition to money due under the policy.
To aid the legal community in contacting insurance companies, below is a link to the official NYS Insurance Department, listing all vehicle insurance company codes and contacts for insurers authorized to conduct business in New York state. (We've also attached a link to NJ Auto Insurance Codes and Company Contacts; our neighboring state's insured apparently like to visit the Big Apple often, and in a hurry.)
http://www.ins.state.ny.us/dmvindex.htm
http://www.state.nj.us/dobifilings.htm
Additionally, it is important to know the information an insurer may have about their insured. (We know you're busy - the "need to know" stuff is highlighted.) We're not sure how and when our readers, individually, may be able to use the below information, but we are sure you should have it.
Many insurers turn to ChoicePoint for the informational needs and insurance risk scoring. ChoicePoint, and the Insurance Services Office (ISO) provide insurers extensive nationwide reports containing a subject's name, address, phone number, credit report, claims history, motor vehicle report, aliases, criminal records, and histories of vehicles.
ChoicePoint, maintains a database called CLUE (Comprehensive Loss Underwriting Exchange). The company uses the information it gathers and maintains for "casualty loss" scoring, claims history reporting, and driving-record reporting. (When a consumer fills out a new auto insurance application, the potential insurer queries ChoicePoint for an insurance score.)
The ISO databases, called the All Claims databases, are for detecting fraud and expediting the claims process. If the ISO sees a series of claims that looks suspicious — for example, the same name appears on all the claims with a different social security number — the company will notify the insurance company and the insurer will investigate. The ISO also has information about any claims that might have ended up in court.
Feel welcome to inquire as to another state's insurance code information. If it's a state that has compiled the information, we have it, and it's yours.
BNI investigators: Street smart; Net Savvy.
I look forward to any comments you may have or and questions I can answer for you.
Sincerely,
Lina Marie Maini
Editor,
The Beacon BulletinCEO,
Beacon Network Investigations, Inc.
