Our Partner Howard Hershenhorn has been appointed an Adjunct Associate Professor of Law at Brooklyn Law School, Brooklyn, New York. He will be teach a Seminar on Personal Injury and Medical Malpractice. This seminar will focus on the practical aspects of the fields of personal injury and medical malpractice. For more information click here.
Anthony Gair was quoted in The New York Times regarding New York Wrongful Death Law;
"The $3.25 million settlement that the city announced this week with the estate of Sean Bell, who was shot to death by the police in 2006, serves as a reminder of a ruthless truth about calculating settlements: It is generally cheaper to settle a case in which there was a death than one in which there was a serious injury..."
"That partly explains why the family of another victim of a fatal police shooting, Amadou Diallo, refused for years to accept the city’s settlement offers, said Anthony H. Gair, the lawyer who handled the case.
“He had no children, he had no next of kin, he was making no money selling things on the street,” Mr. Gair said. “They were offering very little money — way under a million. They were arguing under New York wrongful-death law it wasn’t worth very much. And they were right.”
The city eventually increased its offer to $3 million, which the family accepted. Mr. Gair said the state’s laws on the subject were “the most antiquated, backward wrongful-death laws in the United States.”
Our Partner Howard Hershenhorn commented on the verdict in The New York Times;
"A lawyer for the family of Wayne Bleidner, the crane operator who died in the collapse, said he understood the judge’s decision. “From what I heard as the evidence was presented at this trial, there wasn’t enough evidence that he acted in a criminal manner to bring this crane down,” said the lawyer, Howard S. Hershenhorn.
"But Mr. Hershenhorn said there was still a strong case for civil negligence against Mr. Rapetti and others. A Manhattan judge has already found the general contractor on the project and the owner of the building civilly liable under New York labor law for the seven deaths. A trial to determine damages is scheduled to begin next month, Mr. Hershenhorn said."
In Barrios v. City of New York, et.al., decided on July 13, 2010, The Appellate Division, Second Department, affirmed the granting of Summary judgment against a prime contractor/construction manager despite the prime contractor not being in privity of contract with plaintiff's employer. In holding the defendant contractor to be a statutory agent The Court stated;
"[w]here a separate prime contractor has been delegated the authority to supervise and control the plaintiff's work, the contractor "becomes a statutory agent' of the owner or general contractor" (Russin v Louis N. Picciano & Son, 54 NY2d at 318; see Walls v Turner Constr. Co., 4 NY3d 861, 863-864). Here, although Skanska was not in contractual privity with the plaintiff's employer, the record establishes that Skanska had been delegated a significant degree of authority to supervise and oversee on-site safety matters."
The Court further held that the fact that defendant was a construction manager and not a general contractor was not dispositive;
"We also reject Skanska's contention that it is not a responsible party under Labor Law § 240(1) because it was a "construction manager" and not a "general contractor." "The label of construction manager versus general contractor is not necessarily determinative" (Walls v Turner Consr. Co., 4 NY3d at 864; see Tomyuk v Junefield Assoc., 57 AD3d 518, 520; Lodato v Greyhawk N. Am., LLC, 39 AD3d 491, 493). Rather, the critical question is whether the construction manager was delegated supervisory control and authority over the work being done when the plaintiff was injured (see Walls v Turner Constr. Co., 4 NY3d at 863-864). As previously discussed, Skanska was delegated supervisory authority by the NYCEDC to oversee and control the work of the various on-site contractors, particularly with respect to safety issues. Accordingly, under the facts of this case, Skanska's title of "construction manager" does not relieve it from the duties imposed by Labor Law § 240(1) (see Tomyuk v Junefield Assoc., 57 AD3d at 520; Lodato v Greyhawk N. Am., LLC, 39 AD3d at 493)."
In McCoy v. Metropolitan Transportation Authority, et al., The First Department held that a Gradall Forklift was a mobile crane within the meaning of the Industrial Code, 12 NYCRR 23-8.2 stating;
"The court correctly held, based on the evidence adduced at the framed-issue hearing, that the subject equipment was a mobile crane for purposes of the Industrial Code regulations governing the safe operation of mobile cranes, considering the manner in which the equipment was being used at the time of plaintiff's injury. The term "mobile crane" is undefined in the Industrial Code, and plaintiff's expert witnesses provided persuasive testimony that the Gradall was functioning as a mobile crane at the time of plaintiff's accident, and that the Industrial Code provisions governing mobile cranes could sensibly be applied to the Gradall in light of the manner it was being used at the time (see Giordano v Forest City Ratner Cos., 43 AD3d 1106, 1108 [2007]; Millard v City of Ogdensburg, 300 AD2d 1088, 1089 [2002], lv denied 303 AD2d 1060 [2003]). Defendants' expert testimony, in contrast, was unpersuasive and merely demonstrated that the Gradall was manufactured, tested, and sold in conformity with industry safety standards applicable to manufacturers governing rough terrain forklift trucks and lacked certain characteristics essential to a particular subset of mobile cranes, but ignored that there are [*2]several categories of mobile cranes not all of which possess these characteristics, that the Gradall is a multi-purpose machine capable of functioning as both a forklift and a mobile crane depending on the type of attachment being used, and that the Industrial Code was enacted before multi-purpose machines such as the Gradall were developed and therefore such machines were not within the contemplation of the drafters."
View image 1997 Gradall Forklift.
