New York Personal Injury Attorneys Blog

We are pleased to announce that our partner Ben Rubinowitz and his good friend and colleague Evan Torgan were recently featured in the New York Law Journal. For more than 10 years Ben Rubinowitz and Evan Torgan have been providing Expert Commentary in their column, "Trial Advocacy." Often, Richard Steigman of Gair Gair Conason Steigman Mackauf Bloom and Rubinowitz contributes to these articles.

This month they wrote an influential article "Using the Internet as a Tool for Cross-Examination." According to Rubinowitz, "It is common for Internet users to post status updates, personal comments, photographs, videos and tweets that quite often reveal their recent activities, whereabouts, activities and even their thoughts." Rubinowitz explained the dangers of such conduct: "All of this information can be used as a tool for cross examination. It now becomes obligatory for lawyers to carefully check the Internet not only to dig up information on the witnesses they expect to cross examine but to check the Internet for content about their own clients as well.

Known as experts in the field of personal injury law, wrongful death cases, medical malpractice cases and products liability claims, Rubinowitz and Torgan have not only written numerous articles but each has obtained multiple million dollar awards for their clients.

In Pitts v. Bell Constructors, Inc.,et.al., 2011 NY Slip Op 1220 decided February 18, 2011 The New York Appellate Division, 4th Department reversed the lower court's granting summary judgment to the defendant on plaintiffs' Labor Law Section 240(1) cause of action and granted plaintiffs' cross motion on their Section 240(1) claim.

The plaintiff was injured when he fell from a column form in a trench on which he had been standing into the trench. The Court pointed out that while a fall into a trench from the ground on either side is not covered by 240(1) this was not the case in this accident holding as follows;

"Plaintiffs established theirentitlement to judgment as a matter of law by demonstrating that" plaintiff was not furnished with the requisite safety devices andthat the absence of [such] safety devices was a proximate cause of his injuries” (Williams v City of Niagara Falls, 43 AD3d 1426, 1427).Although generally a fall into a trench from the ground on either side is not covered by the statute (see e.g., Bradshaw v National Structures, 249 AD2d 921; Williams v White Haven Mem. Park, 227 AD2d 923), where, as here, a plaintiff is working or walking over a plank or similar support suspended over a trench and falls into it, the statute applies (see Wild v Marrano/Marc Equity Corp., 75 AD3d 1099)."

By Ernest R. Steigman

The Court of Appeals on February 17, 2011, in a 4 to 3 decision has just written an extremely interesting and important opinion (Kabir v. County of Monroe) regarding New York Vehicle & Traffic Law, Section 1104(e).

The Court held that the reckless disregard standard of care in V & T Law 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by V & T Law 1104(b). Any other injury causing conduct of such a driver is now governed by the principles of ordinary negligence.

In Kabir the police officer was responding to a burglary alarm radio call. He did not activate his emergency lights or siren and was traveling well below the speed limits when he rear ended a vehicle in front of him which had stopped for a red light and was just beginning to slowly move forward. The officer admitted he had taken his eyes off the road for 2 to 3 seconds to look at the vehicle’s display panel.

The Court held that the reckless disregard standard did not apply and that ordinary negligence standard applied. In doing so, The Court of Appeals affirmed the Appellate Division decision (4th Dept.) (3-2 decision). The decision of the Court of Appeals is novel and far reaching. If the accident is not caused by the driver’s conduct spelled out in 1104(b), the reckless disregard standard will not be applied.


1104(b) permits four types of unlawful conduct. These are basically:

1. Stopping, standing or parking privileges;

2. Disobeying red lights or stop signs;

3. Speeding;

4. Disregarding regulations governing or direction of movement or turning.

It now behooves plaintiff’s to examine the precise conduct that caused the accident and attempt to argue that 1104(e) does not apply.

For example, suppose the officer in Kabir was exceeding the speed limit but the accident was caused by the officer’s taking his eyes off the road for 2 to 3 seconds to look at the display panel. Can plaintiff now argue that 1104(e) does not apply because speeding was not the proximate cause of the accident?

In a very strong dissent, Judge Graffeo joined by Judges Ciparick and Smith urged that all emergency vehicles should get the benefit of 1104(e).

The New York injury attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz advocate for our clients' full financial recovery through detailed, meticulous preparation for trial. If you have been injured in an automobile, truck or bus accident, please Contact our firm to discuss your case.

In recognition of his success in the Courtroom, Ben Rubinowitz has been asked to lecture to students attending St. John's Law School on February 28, 2011. Not only will Ben lecture to the students but he will demonstrate successful cross examination techniques in cases in which Ben has obtained multi-million dollar awards for his client's. The topics include:

1. cases involving Medical Malpractice-- the failure of doctors to timely and appropriately diagnose cancer as well as negligence in conducting surgery and surgical errors;

2. Construction Site Accidents -- The failure of General Contractors and Owners to provide a safe place to work resulting in injury and death to construction workers;

3. Motor Vehicle Accidents -- the failure of driver's to to keep a reasonable and proper lookout, resulting in severe injury to other drivers and pedestrians;

4. Cases involving Wrongful Death and injuries stemming from the negligence and recklessness of Drunk Drivers; and

5. Inadequate Security Cases -- Cases in which landlords and owners of buildings fail to provide adequate security to tenants and others resulting in assault, sexual abuse, rape and murder.

Gloria Aguilar was awarded $27 million

The Appeals Court in New York, known as the Appellate Division, First Department, allowed a total damage award of 18.5 Million Dollars for a woman who lost her leg as a result of the negligence of a bus driver employed by the NYC Transit Authority. The injured woman, Gloria Aguilar, was injured when she was crossing the street in Manhattan. Her left leg was traumatically amputated. This award is the largest ever allowed in the country for this type of injury. Our Partner, Ben Rubinowitz , tried the case in New York Supreme Court and argued the appeal for the injured plaintiff. 2011 Slip Opinion 01117. The case has been widely reported throughout the country.

According to Ben Rubinowitz, " Our firm is particularly well equipped and staffed to handle cases of this magnitude. We specialize in catastrophic personal injury cases. We are always willing to work harder than anyone else and take the case to verdict to make sure our client's receive the best possible award. Richard Steigman wrote a powerful and compelling brief. I am delighted that the Appellate Court saw fit to allow this type of damage award. Ms. Aguilar suffered life changing injuries. She was a pedestrian crossing the street when she was struck by the bus. We prepared the case with extreme attention to detail and fully protected our client's rights and interests. " In describing his job as a Trial Lawyer, Ben Rubinowitz said, " A Trial Lawyer must at all times fight for his client's plight. If the offer to settle is insufficient, this firm is prepared to go the distance. We will not sleep until we achieve the best result we can. The Transit Authority's offer was insufficient and we insisted on taking the case to verdict. " GGCSMB&R has some of the finest lawyers in the field of Personal Injury. It is the only Plaintiff's Personal Injury Firm with 10 Lawyers Listed in the Best Lawyers in America.

$27.5 million payout for mom who lost leg to bus, New York Daily News, April 17th 2009

Glens Falls Hospital

Dr. Stephen Serlin, an obstetrician-gynecologist, has been ordered to pay $3 million for medical malpractice for brain injuries sustained by a girl during childbirth over 17 years ago. Those injuries have been blamed for serious development problems, including cerebral palsy, during the child's life.

For Serlin, the most damaging event in the trial was testimony that showed he had arrived two hours late for the preparation of a Cesarean section. The plaintiff claimed this delayed the operation and resulted in the serious brain damage. The plaintiffs presented testimony from an expert that showed the girl suffered "fetal asphyxia" in the womb during the delay.

The verdict can be appealed.

Glens Falls doctor ordered to pay $3 million in malpractice decision, Popstar, February 2, 2011