New York Personal Injury Attorneys Blog

1. Read the statute. When you get the case, make sure it fits within the parameters of Labor Law §240(1):

a. Was the injured worker engaged in a §240 activity? Construction, demolition, etc.
b. Was the injured worker working on a building or structure?
c. Was there the failure or absence of an enumerated safety device?

A thorough investigation must be conducted immediately upon your being advised of the accident. The following are items which must be obtained:
1. Official Reports
a. OSHA Investigations including prior citations
b. Dept. of Buildings records(including permits and permit applications)
c. Police reports
d. Department of Buildings violations/citations

2. Injured Worker’s Records

a. Ambulance Call report
b. Hospital records
c. Physicians/Rehabilitation records
d. Autopsy/Death Certificate
e. Workers’ Compensation file
f. Prior Workers’ Compensation claims and prior medical
g. Union records
h. Employment records
I. Income Tax records for five years prior to accident

3. Witness Statements

Witness statements should be obtained at the earliest opportunity. If necessary, get Affidavits from witnesses immediately, before their story changes, they stop talking or they disappear.

4. Photographs of Scene

5. Copies of All Contracts

6. Identity of All Contractors on Job

a. Who supervised job
b. Who was in charge of safety
c. Was duty to control and supervise
work which gave rise to accident
specifically delegated to a sub-contractor

7. Insurance Policies Including All Endorsements

8. Job Documents

a. Safety memos and inspection records
b. Records of safety meetings
c. Work permits
d. Progress sheets
e. Daily logs
f. Progress photographs
g. Dept. of Buildings inspections
h. Determine who owned and controlled
all equipment involved in accident
I. Records regarding safety equipment at the job site

2. Depositions

The plaintiff must tell a Labor Law §240 story. You must anticipate recalcitrant worker/sole proximate cause defenses and handle them within the confines of the case law. I.e., no specific instructions, no other available safety devices, etc.

A. The Defendants’s deposition .you must anticipate recalcitrant worker/sole proximate cause defenses and handle them within the confines of the case law. You must also take as many defendant depositions as necessary of those important people at the job site because you do not want to get an Affidavit as part of a Summary Judgment motion of a key witness you did not depose.

The following is a brief deposition checklist for the plaintiff’s attorney:

1. Identify the contracts in place - do they have any paragraphs concerning site safety?

2. The presence/absence of safety meeting minutes, site Safety Plan, progress notes, progress photos, and any other document which could potentially memorialize any specific instructions

3. List of all safety equipment present at the job site and their usage/locations. Were they nearby? In use? Appropriate for plaintiff’s job?

4. Identify each important person at the job site (especially those with supervisory authority) and their job function

5. Identify all persons present on the day of the accident - who supervising, what plaintiff doing, what point in job was the plaintiff

6. The defective safety device - where is it? Who owned it? What happened to it? Anyone inspect it following the accident? Findings? Photos?

7. Safety instructions. Who gave? When given? Who present? Reduced to writing? Were the instructions in English? Spanish? IMPORTANT: Ask the defendant witness if the plaintiff acknowledged that he heard and understood the instructions.

8. Witnesses to accident? Witnesses to conditions prior to accident? Witnesses who saw plaintiff working in similar manner prior to accident? Anyone tell him to stop? Give other directions or warnings?

9. Post-accident investigation - Accident reports, Worker’s Compensation reports, OSHA, defendant, anyone else’s report - areas of agreement/disagreement. Meetings, conversations

10. Cause of accident - any determination made as to cause of accident? By whom? What determined?

B. Non-party witnesses - depositions must be taken to evaluate/establish the recalcitrant worker/sole proximate cause defenses and distinguish/support them given the state of the current case law.

The New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.

In Brannan v Korn, Second Department, May 24, 2011, an action to recover damages for personal injuries, The Court granted defendants' motion for summary judgment dismissing the complaint based on the emergency doctrine. The plaintiff, while attempting to walk across Ring Road, in Garden City, New York, was struck by a hit and run driver and, as a result of the impact, was propelled onto a second vehicle operated by the defendant Joseph D. Korn. The Court held that while "... the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues "may in appropriate circumstances be determined as a matter of law" (Vitale v Levine, 44 AD3d 935)..." The Court went on to hold that the defendants were entitiled to judgment as a matter of law.

"The evidence submitted by the respondents in support of their motion for summary judgment established that Korn was faced with an emergency situation, not of his own making, leaving him with seconds to react and virtually no opportunity to avoid a collision (see Lonergan v Almo, 74 AD3d 902). Under these circumstances, the respondents established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff's speculative and conclusory assertions failed to raise a triable issue of fact as to whether Korn's reaction to the emergency was unreasonable, or whether any negligence on his part proximately contributed to bringing about the emergency or the accident."

One must wonder if plaintiff submitted a detailed affidavit of an accident reconstruction expert. In any auto accident case in which the emergency defense is applicable the plaintiff's attorney must retain an experienced accident reconstruction expert, not a "generic" expert who will do a detailed site scene analysis, review all testimony, police reports, etc. and be able to state, not speculate, that to a reasonable degree of professional certainty, the defendant driver had time to react and avoid the accident. The affidavit must explain in minute detail the foundation for the expert's opinion that the defendant had sufficient time to avoid the accident.

As we stated several years ago in a prior post, "NEW YORK AUTOMOBILE ACCIDENTS, THE EMERGENCY DOCTRINE" "The lesson to be learned is that in a New York Automobile Accident in which the Emergency Doctrine may be implicated GET AN EXPERT. A qualified accident reconstruction expert is able, using long accepted methodology, to analyze a driver's perception of a situation as a hazard, to analyze the driver's decision as to how to avoid the hazard and to analyze the driver's performance as to the actions undertaken to avoid the hazard. The qualified expert will be able to give opinions on the driver's reaction time from perception of the hazard and whether the driver reacted in a timely manner in order to avoid the hazard."

In MALONEY v.J.W. PFEIL & COMPANY, INC.,et al., Appellate Division, 3rd Department, decided May 19, 2011, plaintiff, while standing on the top cap of a six-foot ladder installing sheetrock on an overhead soffit, fell and sustained injury. Plaintiff moved for partial summary judgment on his Labor Law § 240 (1) cause of action and defendants cross-moved for summary judgment dismissing the complaint. Given the facts as set forth by the Court it is difficult to understand why plaintiff brought the motion. According to The Court plaintiff testified as follows;

"In his deposition testimony, plaintiff admitted knowing that there were other safety devices in other locations in the building better suited for the type of work he was about to perform and that he had routinely used these devices while working on this project. He acknowledged that a baker's scaffold was in his immediate work area and, at the time of his fall, was being used by n associate working with him. Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it of his fall, was being used by an associate working with him.

Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it contained a written warning never to stand on the top cap of the ladder when using it. Given this proof, we find that defendants made a prima facie showing that Labor Law § 240 (1) was not violated (see id. at 917; see also Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071 [2009]), shifting the burden to plaintiff to raise a triable issue of fact as to this claim.

Plaintiff testified that he tried to find a more appropriate safety device near where he was working and that none was available. However, he admitted that he confined his efforts in that regard to the second floor of the building and did not look in other areas of the work site for a device that would be more suitable for his work (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 [2006]; Torres v Mazzone Admin. Group, Inc., 46 AD3d 1040, 1041 [2007], lv denied 10 NY3d 706 [2008]). In addition, plaintiff acknowledged that he chose the six-foot ladder not because he was ordered to do so or because he was under some time constraint within which he had to complete the job, but because, in his own words, 'it was the quickest thing to grab.'"

This one was a no brainer and as we have previously commented demonstrates the importance of depositions and a knowledge of the law. It appears that plaintiff was ill prepared for his deposition and was obviously effectively cross-examined by an experienced defense attorney.

For the sixth straight year the number of Medical Malpractice cases brought in Pennsylvania dropped. In 2010 163 Medical Malpractice cases were decided by a jury. 133 resulted in defense verdicts. This is a direct result of changes in the law, the goal of which, are to deprive victims of medical negligence from obtaining legal representation. In 2002 the State implemented changes in the law which required that attorneys representing patients be required to retain an expert in the same specialty as each defendant physician in order to bring a lawsuit. The sole purpose of this law was to drive up the costs involved in bringing a case on behalf of a patient. A further change in the law required medical malpractice cases to be brought only in the county in which the malpractice occurred even if the doctors and patient live in different counties.

Ben Rubinowitz has been asked to be one of the featured speakers at the New York State Bar Association's Continuing Legal Education Program "How To Commence A Civil Lawsuit." Mr. Rubinowitz will be speaking about Depositions. His lecture will focus on appreciating and understanding the New Rules of Depositions; How to effectively prepare a client for a deposition; and How to take an adversarial and Non-Party deposition.

For more than 25 years Ben Rubinowitz has been recognized as an expert in his field in representing severely injured people as a result of car and motor vehicle accidents, premises accidents, civil rights violations, construction accidents and medical malpractice cases. In addition to his work at his firm, Gair Gair Conason Steigman Steigman Mackauf Bloom & Rubinowitz, Ben is a featured writer on Trial Practice in the New York Law Journal. To date, Ben has obtained 19 Verdicts and 83 settlements in excess of one million dollars for his injured clients.

In Anastasi v. Terio, decided by The New York Appellate Division, Second Department on May 17, 2011, reversed the granting of Summary Judgment for defendants in this action for wrongful death.

The case involved a car accident that took place at an intersection in Queens, New York City. The traffic proceeding in the same direction as the plaintiff's vehicle was controlled by a stop sign, while the traffic proceeding in the same direction as the defendants' vehicle was not controlled by any traffic device. The plaintiff's decedent was sitting in the back seat of the automobile operated by the plaintiff. In reversing The Court held;

"Contrary to the Supreme Court's determination, the defendants failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). "There can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d 427, 427). Although a stop sign governed the intersection for traffic proceeding in the direction that the plaintiff's vehicle traveled, triable issues of fact exist as to whether the defendant driver was free from negligence and, if not, whether that negligence was a proximate cause of the accident (see Myles v Blain, 81 AD3d 798; Kim v Acosta, 72 AD3d 648; Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Cox v Nunez, 23 AD3d 427). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint."

In Blackstock v.Board of Education of the City of New York, decided on May 12, 2011 by The Appellate Division, First Department, a special education speech therapist employed by the defendant Board of Education, claimed that she suffered personal injury as the result of an assault by a student. She alleged defendant failed to properly supervise its students. The Court granted defendant summary judgment holding plaintiff failed to show that defendant owed her a special duty of protection. The Court held as follows;

"Under these circumstances, in order to impose liability, plaintiff had to show that defendant owed her a special duty of protection (see Bonner v City of New York, 73 NY2d 930, 932 [1989]; see also Vitale v City of New York, 60 NY2d 861, 863 [1983]). Plaintiff's failure to allege or provide the factual predicate for the special relationship theory in her notice of claim or complaint is fatal to maintenance of this action (see Rollins v New York City Bd. of Educ., 68 AD3d 540, 541 [2009]). Moreover, the record shows that plaintiff could not prove all of the necessary elements of that theory (see Cuffy v City of New York, 69 NY2d 255 [1987]). Accordingly, there are no material issues of fact, and summary judgment was properly granted."

In Churchill v Malek, 2011 NY Slip Op 03673, decided May 3, 2011, The New York Appellate Division, First Department held that a plaintiff in a personal injury action cannot be compelled to disclose confidential psychological or psychiatric records. The Court stated as follows;

"Given that, in this personal injury action, there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 [1995]), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 [1988]), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 [1997]). Defendant's unsubstantiated claim that plaintiff's mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994])."

Our partner Howard Hershenhorn recently settled this case in New York Supreme Court, New York County. The case involved the wrongful death of a 38 year old construction worker who fell from a ladder at 80 Centre street in Manhattan. The construction worker was in the process of demolishing a chimney when the 6 foot A-Frame ladder upon which he was standing shifted causing him to fall 25 feet. He sustained fatal injuries including a brain injury and other internal injuries from which he later died . On behalf of the Estate we argued that the defendants violated sections 240(1) and 241(6) of The New York Labor law and that these violations by the Owner and General contractor were the proximate cause of the accident and the worker’s death. The defense argued that the worker was the sole proximate cause of the accident in that he failed to use available safety devices.

The New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.