Partner Derek J. Spada won an appeal in the Appellate Division last week. This was a long process, as the original case was dismissed in August of 2018. Derek did not give up and kept fighting for our client. He ultimately won the appeal in November 2021, meaning that the case was reinstated and our client will have an opportunity to recover damages for his injuries.
Our client is an elderly gentleman who sustained a fractured hip and required a total hip replacement after falling during a physical therapy session. He sustained this injury while in the care of a physical trainer who failed to provide adequate assistance while performing a difficult balance exercise. Our client informed the trainer that he felt he could not do this exercise, but she assured him that she would catch him if he fell.
The trainer had no mats, railing, or other safety measures in place. Our client was in the middle of the gym on a concrete floor.
Our client lost his balance and began to fall. The trainer was not in a position to catch him. Our client fell onto the concrete floor and suffered a severely fractured hip.
The defense made a motion for summary judgment seeking to dismiss the complaint, which was granted and the case was dismissed.
Derek believed that the case was wrongly dismissed and our client deserved a recovery for his suffering. Derek filed an appeal. Once again, Derek won in the Appellate Division.
The appellate court found that our client did not assume the risk of injury when he unsuccessfully attempted the balancing exercise, but rather that the trainer may have increased the risks of the activity by failing to assist and having him attempt the exercise on a concrete floor.
The court also found the defense failed to establish that our client’s claims are barred by the release he signed. If a participant signs a release before engaging in an activity, it does not mean that the release is necessarily valid.
To read the full decision on this case, click here.
The Process of an Appeal
An appeal occurs when someone who loses a case asks an appellate court, or higher court, to review the decision and change it. In an appeal, filing the correct paperwork is essential. Not only must your attorney explain how the decision was wrong, but why the law favors the client in this situation. The lawyer must file all the relevant supporting documentation and evidence.
The process starts with the filing of a Notice of Appeal. The deadline for filing is 30 days. Once you receive an Order or Judgment with Notice of Entry, you must file the Notice of Appeal within 30 days.
The next step involves perfecting the appeal. Perfecting means preparing and submitting the brief and record to the appellate court. Your lawyer will compile a record, which contains all of the documents for the appellate court to consider. The attorney will then write a brief explaining the facts and pertinent points of law. It includes a great deal of paperwork, basically including all the documentation considered by the lower court in making its decision.
Appellate Court Decisions
Appellate court decisions can take a long time. There are four Appellate Division departments in New York State. Expect your appeal to be decided at some point between four months and three years, depending on where your appeal is filed.
The appellate court will render a decision, such as:
- Reversing the lower court’s decision, meaning that the lower court was wrong;
- Affirming the lower court’s decision, meaning that the lower court was right;
- Modifying the lower court’s decision, meaning that the lower court was correct in some respects and incorrect in others;
- Sending the case back to the lower court for additional proceedings, meaning there are unresolved issues that were not addressed by the lower court.
If the decision is reversed, you have won your appeal. If it is affirmed, you have lost it.
If the appellate court upholds the lower court’s decision, it is still possible to appeal before New York’s Court of Appeals, the highest court in the state. However, it is rare to get to this court.
Nonetheless, Derek Spada has brought appeals to the Court of Appeals on three occasions. In each case, the appeal was lost in the Appellate Division. In each case, Derek won in the Court of Appeals and had the Appellate Division reversed.
Contact Our Experienced Personal Injury Attorneys
If a motion decision or verdict went against you, it is essential that you choose a lawyer experienced in writing appellate briefs and arguing cases before appellate courts. Our attorneys have decades of experience and can help you win an appeal.Contact our office today at (845) 251-4545 and request your free consultation.