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A 74-year-old woman who said she was injured after falling in a Costco store in Florida beat back the retailer’s effort to move the case to that state because it was too much trouble to defend itself in New York.

Theresa Danza sued Costco in her hometown of Brooklyn, New York, claiming she was hospitalized for spinal and shoulder trauma and needed months of treatment by a chiropractor after a tumble in a Costco in North Miami, Florida, on Jan. 24, 2009.

“I didn’t know what hit me,” she said. “I just went flying. I went up in the air and down I went. It seems I slipped on a slurpee that was all over the floor.”

Costco sought to move her case to Florida. It said it would be prejudiced if the case stayed in New York, and cited the cost of locating and interviewing witnesses.

Not so, New York State Supreme Court Justice Arthur Schack said in a decision Wednesday.

Schack said it would be more inconvenient for Danza to fly her witnesses to Florida than for Costco to fly its employee witnesses to New York.

He also said Issaquah, Washington-based Costco Wholesale Corp. is hardly cash-starved, with profit of $1.3 billion on revenue of $77.95 billion in its last fiscal year.

“The court, in balancing the interests of plaintiff Danza against financial ‘goliath’ defendant Costco, holds that it would not be in the interest of substantial justice to try this action in Florida instead of New York,” Shack wrote.

A Costco spokeswoman declined to comment, citing a company policy not to discuss litigation.

Pursuing the case at home could avert more pain for Danza.

“I do not intend to be traveling to Florida in winter anymore as traveling is too painful and stressful for me,” she said in court papers quoted by Schack.

The case is Danza v. Costco Wholesale Corp., New York State Supreme Court, Kings County, No. 31512/2010.

 

With Hurricane Irene pushing relentlessly toward the East Coast, New York City began evacuating hospitals and nursing homes in low-lying areas on Friday morning, and the National Weather Service issued a hurricane watch for the city, Long Island and Connecticut and a hurricane warning for much of New Jersey.

Mass transit officials also were preparing for a possible shutdown, starting on Saturday, of their entire system — the subways and buses in New York City as well as the commuter rail lines in the suburbs. And state officials continued arrangements for coordinating emergency services and restoring electricity if the storm does the kind of damage many fear.

Those preparations came as homeowners scrambled to cover windows with plywood and boaters struggled to get their vessels away from docks. In Manhattan, apartment dwellers with balconies and terraces hauled in patio furniture and potted plants, and stores ran short on staples like batteries, flashlights and bottled water. In shore towns on Long Island and in New Jersey, vacationers waited in lines at gasoline stations and watched as emergency crews piled sandbags on low-lying beach roads.

The hurricane watch for the city was a formal indication that forecasters saw a potential threat within 24 to 36 hours. It was issued 14 hours after Mayor Michael R. Bloomberg said the city was ready with “evacuation contingencies” for low-lying places like Coney Island in Brooklyn, Battery Park City in Lower Manhattan and parts of Staten Island and the Rockaways in Queens — areas that are home to 250,000 people.

The mayor said Thursday that the city was ordering nursing homes and hospitals in those areas to evacuate residents and patients beginning at 8 a.m. Friday unless they receive special permission from state and city health officials, among them the city’s health commissioner, Dr. Thomas A. Farley, who, the mayor noted, was chairman of the community health sciences department at Tulane University when Hurricane Katrina hit New Orleans in 2005.

The evacuation order covers 22 hospitals, nursing homes and other facilities for older people.

The city also ordered construction work halted until 7 a.m. Monday. With the worst of the storm expected on a weekend, a time when relatively few construction crews would normally be on the job, the Buildings Department said Friday that its inspectors were checking construction sites to see that equipment had been secured. The department said it would check over the weekend that builders complied with the no-work order.

Anticipation of the hurricane disrupted other rituals of late summer. New York University postponed its move-in day for undergraduates, which had been scheduled for Sunday, James Devitt, a university spokesman, said. Students will not be able to move into university housing until Monday. Mr. Devitt said about 5,000 undergraduates typically arrive on move-in day. The delay does not affect students who live off campus in housing not owned by the university, he said.

At a City Hall briefing on Thursday evening, the mayor said the five hospitals in the low-lying areas were reducing their caseloads and canceling elective surgeries on Friday to be ready for emergencies over the weekend. One, Coney Island Hospital, is to begin moving patients to vacant beds in other parts of the city on Friday, he said.

Mr. Bloomberg said he would decide by Saturday morning whether to order a general evacuation of the low-lying areas.

He also said he was revoking permits for events in the city on Sunday and in the low-lying areas on Saturday. The Sunday cancellations apparently included a concert on Governors Island by the Dave Matthews Band. A statement on the band’s Web site said people with tickets for that show should attend the Friday or Saturday performance. But the Web site said to check for updates on Friday.

The mayor said 300 street fairs over the weekend “would have to be curtailed” to keep streets clear for hurricane-related transportation — ambulances carrying patients to nursing homes or hospitals on higher ground, buses and city-owned trucks moving to where they would be ready for duty once the hurricane had swept by.

Mr. Bloomberg said people should stay out of parks because high winds could bring down trees. “And incidentally,” he said, “it’s a good idea to stay out of your own backyard if you have trees there.”

The mayor cautioned that forecasts were not always accurate and that the hurricane, a sprawling storm still far away, could become weaker.

“We’re talking about something that is a long time away in meteorological terms,” he said, “so what we have to do is assume the worst, prepare for that, and hope for the best.”

That seemed to be the official mantra from South Jersey to coastal Connecticut on Thursday. In East Hampton, N.Y., crews removed sidewalk benches so they would not blow away if Hurricane Irene howled through. In Long Beach, N.Y., maintenance crews used a different kind of defensive maneuver, building up berms that they hoped would block the waves.

In New Jersey, Gov. Chris Christie told shore-area residents hoping to sit out the storm that “it is not the smart thing to do.” He said people who were thinking about a weekend along the coast should think again.

“Do not go,” he said.

Mr. Christie also urged people on barrier islands to leave. “Right now, I’m asking people to do this voluntarily,” he said. “I am actively considering a mandatory evacuation, but I’m not there yet.”

Officials elsewhere echoed his concern about areas closest to the Atlantic Ocean. On Long Island, the Islip town supervisor, Phil Nolan, called for a voluntary evacuation of Fire Island “to avoid a rush of people as the storm nears Long Island.”

Cape May County, N.J., went a step further, ordering everyone out. Evacuations of its barrier islands began on Thursday afternoon. People on the mainland were told to leave beginning at 8 a.m. on Friday, said Lenora Boninfante, the county communications director.

In the northern part of the state, the Jets-Giants game at MetLife Stadium was changed to 2 p.m. Saturday from 7 p.m. because of concerns about the weather.

Back in the city, Mr. Bloomberg, along with Joseph F. Bruno, the commissioner of the city’s Office of Emergency Management, instructed residents to take preliminary steps: stock up on basic supplies, identify an alternative place to sleep in the event of an evacuation and prepare a “go bag” of essentials to allow for a rapid departure, if necessary.

As for a transit shutdown, Jay H. Walder, the chairman of the Metropolitan Transportation Authority, said his agency could not guarantee the safety of passengers if winds remained above 39 miles per hour for a sustained period. He said it could take up to eight hours to shut down the system, meaning that transit planners may have to make a judgment call on Saturday, well before the full force of the storm is felt.

And because it takes the agency several hours to restart trains and buses, a shutdown could last through early Monday, if not longer. “It’s hard to predict when it will come back,” Mr. Walder said, “because I can’t really predict for you exactly what will happen in the storm.”

In the event of a shutdown, Mr. Walder said, the transportation authority will aid in evacuation efforts.

Mr. Bloomberg warned New Yorkers to heed any evacuation call as quickly as possible, in case mass-transit options were unavailable.

Certain low-lying areas of the subway system are particularly susceptible to flooding, in Lower Manhattan and on exposed tracks in parts of Brooklyn. Overhead catenary cables, which provide power to commuter rail lines in the suburbs north and east of the city, can be knocked down by winds, and stations on elevated routes could be dangerous for the trains and for passengers waiting to catch them.

Still, against the drumbeat of plans and announcements from officials on Thursday, some all but disregarded the hurricane talk. Dave Merklin of Freeport, N.Y., said he was doing “practically nothing, because I’ve been through so many of these storms.”

“I’ve lived in this house for 40 years,” he said. “I wait until the storm is gone, and then I clean up the mess. I don’t do much in the way of preparation except make sure the doors are closed.”

Updated: August 25, 2011, 12:54 PM

High school athletes are flocking back to Western New York’s sports fields. While students are busy sprinting, kicking and tackling to make their teams, their parents and coaches are focusing on a goal they say is just as important:

Ensuring their boys and girls don’t suffer the debilitating effects of concussions.

• A new sports concussion center opened in Amherst, where athletes as young as 10 can receive the “base-line” testing that advocates deem crucial to measuring the effects of a concussion.
• The Williamsville Central School District, Canisius High School and St. Joseph’s Collegiate Institute have signed up their student-athletes for the computerized before-and-after tests.
• Buffalo Public School coaches and trainers — about 50 in all — met with local health experts this month for a seminar on concussions and other sports-related injuries, and officials are creating a pamphlet to inform parents and students.

Even creators of the popular Madden NFL video game have become involved. This year’s version of the football game not only is less violent but also requires players who suffer a concussion to sit out the rest of the game.

“The days where you ‘had your bell rung’ and can go back in are long past,” said Dr. Steven Lana, medical director for the Buffalo Public Schools. “It’s a fact, and we can’t take a chance of a student-athlete going down that path.”

“There is a better awareness now,” said Dr. Jason M. Matuszak, director of the newly opened Comprehensive Sports Concussion Center at Excelsior Orthopaedics in Amherst. “I think you’re getting more people in the right places now that do care about health and safety first and foremost.”

The increased emphasis locally comes after national media attention focused on NHL star Sidney Crosby’s head injury and a concussion-related lawsuit by retired pro football players who claim the NFL withheld knowledge about the effects of concussions.

It also follows a bill passed in June by the State Legislature that would establish the first-ever statewide concussion standards for its 700 public schools. The bill is expected to go to Gov. Andrew M. Cuomo for signing into law by Labor Day and would take effect next July for the 2012-13 school year.

The state legislation would keep students suspected of having suffered concussions out of sports for at least 24 hours after they are symptom-free. A doctor’s permission would be needed to return.

Local doctors and concussion experts are recommending measures that surpass those called for in the legislation, including base-line testing and a more gradual rehabilitation process that could take two to three weeks to complete.

And they recommend the measures start now, instead of waiting for the state law to take effect.

Advocates have praised the base-line testing as a more measurable way to determine the effects of a concussion. Students would be tested before the sports season, then after a suspected concussion. The tests are used throughout professional sports.

“It gives us a reference point so we can say, at any given point in time, ‘This is how this kid performed,'” Matuszak said.

Excelsior charges $20 for the testing, though officials said they are seeking donations from local businesses to lessen the costs for large families.

The tests, along with proper diagnosis, could avoid the brain damage suffered by athletes who return to the field prematurely.

Once a concussion is diagnosed, a day or two of rest is not necessarily sufficient, Lana said. A gradual, performance-based recovery with measurable physical milestones and medical supervision is recommended.

Faculty from the University at Buffalo’s Concussion Management Center developed a pioneering treatment that helped former Buffalo Sabres center Tim Connolly return to the ice in 2007. The treatment includes a regulated exercise routine.

The new strategies for diagnosing and dealing with concussions can’t come fast enough for parents of local student-athletes.

“Sure, it worries you,” said Donna Crum, an Excelsior employee whose daughter Riley, 10, plays travel soccer. “Competitive athletics are getting a lot tougher than when we were kids.”

The “warrior” mentality that has long permeated football, hockey and other contact sports is losing hold, doctors say.

“We’ve seen accidents on the football field, and in years past … we’ve seen kids get assessed by a trainer, and the coach is like, ‘Put them back in the game.’ And that never sat well with me,” said Aubrey Lloyd, athletic director for the Buffalo Public Schools.

Athletes who are taken off the field must be supervised, Lana said. An athlete who appears to “shake off a head hit could actually be suffering a brain bleed.”

“It’s not enough to take an athlete off the field,” Lana said. “Every few minutes you have to be talking to them and make sure they’re responding and behaving appropriately.”

Football and hockey players aren’t the only athletes in danger of head injuries. Female athletes are actually more susceptible to concussions, Matuszak noted, compared with male athletes playing the same sports.

The bottom line, Lana said, is protecting the student-athlete’s future.

“People will take this seriously and have to appreciate the fact that when we’re talking about student-athletes that are not making a living, there’s really no reason to expose [them] to long-term developmental consequences of head injuries,” Lana said.

cspecht@buffnews.com

With the NFL lockout over, football fans are excited for the upcoming season. Learn more about how players may file workers’ compensation claims in states where their team is not based.

August 25, 2011 /24-7PressRelease/ — Now that the NFL lockout is over, football fans across the nation are excited for the upcoming season. One of the last issues to be resolved was the ability for players to file workers’ compensation claims in states where their team is not based. This was a particularly thorny issue that owners did not want to concede. Because of the speed and violent collisions inherent to professional football, NFL players get injured on the job much like any other employee and they have the opportunity to file for workers’ compensation. Since injuries are large part of the game, owners are concerned about players forum-shopping in the hopes of maximizing their potential compensation.

This issue could be especially complicated when considering the plight of recently retired players. Under California law, retired players may seek workers’ compensation benefits from a former team if they have played at least one game in the state. Essentially, if a player from the Buffalo Bills was injured in a game against the San Francisco 49ers, he would be eligible for workers’ comp benefits.

California allows for limited contacts to protect truck drivers, seasonal harvesters and other transient workers who work in the state for short periods of time. Professional athletes have been able to benefit as well. According to a New York Times report, hundreds of football players have received awards or settlements worth at least $100,000. Many more players are currently seeking benefits, claiming that they played at least one game in the state.

Football players typically find higher payouts in California compared to other states, and the statute of limitations is longer. Former Minnesota Vikings linebacker Fred McNeil petitioned for benefits stemming from early onset of dementia in 2009, nearly 25 years after playing in the NFL. McNeill, an attorney in California who practiced workers’ compensation law, suspended his license because he could no longer practice, allegedly because of repeated head trauma playing football. He seeks benefits to cover future medical expenses associated with his condition.

Other states, like Florida, do not operate in the same manner. Florida law does not recognize professional athletes as employees, so sports teams do not have to provide workers’ compensation for players. Instead, a special arbitration process is used to resolve players’ injury claims. The NFL sought to incorporate this process to streamline the resolution process and to limit teams’ exposure to future workers’ compensation claims. However, the NFLPA relied on U.S. Supreme Court precedent indicating that employees could seek benefits in any state that has proper jurisdiction to hear such claims. Further, the Court has repeatedly held that under federal law, employees cannot bargain away certain rights created under state employee benefits laws.

As such, players can continue to seek benefits in California for now, but lawmakers may consider closing the loophole and limit claims to those who actually played for the Oakland Raiders, San Francisco 49ers and San Diego Chargers.

If you have questions about your ability to seek benefits in a particular state, whether or not you are a professional athlete, an experienced workers’ compensation attorney can advise you.

New York officials preparing for Hurricane Irene this weekend will decide tomorrow whether to call for the evacuation of low-lying areas in downtown Manhattan, Brooklyn, Queens and Staten Island, Mayor Michael Bloomberg said.

The decision would be based on the strength, path and speed of the storm, Bloomberg told reporters today at a news conference in a flood-prone section of Queens. The city would offer “an enormous shelter system” for those without a place to stay on higher ground, he said.

“We don’t have enough information yet to make that call,” Bloomberg said. “The timing is a bit up in the air, as it is with all these things. Sometime on Friday, late in the day. How many depends on how severe we think the storm is going to be.”

Officials must decide whether to suggest or order people to seek higher ground, Bloomberg said. The mayor has the power to issue an executive order forcing evacuation, which Bloomberg said he would use only in the “worst circumstances.”

The heightening concern over the approaching storm and the quickening pace of preparations became evident at 11 a.m. today when Bloomberg summoned the city’s elected officials as well as its state legislative delegation to City Hall for a briefing with police and emergency-management officials.

Gloria in 1985

Irene, the strongest Atlantic storm to threaten the U.S. since 2005, battered the Bahamas today with 113 mph winds on a course that’s expected to take it near North Carolina this weekend and New England next week. Only five hurricanes on record dating to 1851 have tracked within 75 miles of New York City, the most recent being Gloria in 1985, according to the National Weather Service.

City officials are planning for a storm on Aug. 28 with winds of at least 60 miles per hour (97 kilometers per hour) accompanied by heavy rain, the mayor said. They expect the brunt of the storm to cross mid-Long Island, on the border of Nassau and Suffolk counties, to the east of the city, he said.

He advised residents to prepare “go-bags” containing water, non-perishable food, medications, important papers and extra house and car keys in the event officials declare the storm dangerous enough to evacuate. The areas affected include lower Manhattan, southeast Queens, Brooklyn’s beach communities including Coney Island and coastal areas of Staten Island, Bloomberg said.

The Police Department has 50 small boats to use in the event of floods. Sanitation crews are cleaning leaves and refuse from storm sewers and moving equipment to higher ground. Hospitals have checked their emergency power generators, stocks of medicine and other supplies.

The mayor is founder and majority owner of Bloomberg News parent Bloomberg LP.

To contact the reporter on this story: Henry Goldman in New York City Hall at hgoldman@bloomberg.net

To contact the editor responsible for this story: Mark Tannenbaum at mtannen@bloomberg..net