New York Personal Injury Attorneys Blog

Howard S. Hershenhorn Gair Gair Conason Steigman Mackauf Bloom & Rubinowitz

Thomson Reuters, in an article entitled, "Crane collapse trial could be uphill battle for prosecutors" quoted Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz partner, Howard S. Hershenhorn, on the difficulties of prosecuting the 2008 crane collapses in Manhattan that killed nine people.  Hershenhorn, who represented the widow of the crane operator who died in the first collapse, was quoted as saying, "In a criminal case, you're picking one actor, unless you're charging a conspiracy. It's very difficult to find one actor. There are so many factors."

You can read the rest of the article here.

• Relatives are suing the nursing home where a 77-year-old dementia resident walked away from last month and later died.
• International drug maker Teva Pharmaceuticals will pay more than a quarter billion dollars to settle most of the lawsuits arising from Southern Nevada's hepatitis C outbreak.
• A woman who had a marble-sized lump that a doctor first said was not malignant, wins $15M in Malpractice Suit.
• A Franklin County man was awarded $900,000 after a five-day medical malpractice jury trial for botched surgery
• It was reported that Johnson & Johnson continued to market an artificial hip in Europe and elsewhere overseas after the FDA rejected its sale in the United States based on a review of company safety studies.

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In Kempisty v 246 Spring St., LLC, 2012 NY Slip Op 00901, Decided on February 9, 2012, New York Appellate Division, First Department, The Court modified the decision of the lower Court dismissing the plaintiff’s 240(1) claim to the extent of reinstating the § 240(1) claim and granting plaintiff summary judgment.

The plaintiff alleged that he suffered a serious injury to his right foot when a steel block being hoisted by a crane improperly swung in his direction. He had been assigned the job of hooking blocks to the crane and acted as the signal man for the crane operator, Leonardo Marino. At his deposition, plaintiff testified that a second before the accident he was standing about two to three feet above the ground on a stack of blocks. Plaintiff further testified that the block that struck him had been vertically lifted about two feet before the accident occurred. Marino also testified that the block in question was vertically lifted about two to three feet. Plaintiff was standing two to three feet off the ground and the block was lifted off the ground approximately two feet when it began to swing. Hence the plaintiff and the block that struck him were at about the same height.

In granting summary judgment The Court held;

“The motion court erred in finding that Labor Law § 240(1) does not apply in this case because there was no appreciable height differential between plaintiff and the object being hoisted, a four-ton steel block, that crushed plaintiff's foot. The elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance (see Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]).

Having concluded that § 240(1) applies, the question is whether or not defendants established the existence of an issue of fact sufficient to deny plaintiff summary judgment. They have not. Plaintiff established that the accident was proximately caused by the application of the force of gravity to the block. Plaintiff's expert asserts the block was not properly secured, through the use of tag lines or other safety devices, to prevent it from moving while being hoisted.

In opposition, defendants' expert merely attempts to shift proximate cause of the accident to plaintiff for walking in the path of the block, and he states, in conclusory fashion, that tag lines were not required to be used during the load test. This does not sufficiently challenge the conclusions of plaintiff's expert that the accident was the direct result of the application of gravity to the block.”

This case illustrates the importance of The Court of Appeals rejection of the same level rule in Wilinski in New York construction accidents. Decided on October 25, 2011, Wilinski has to date been cited 12 times.

See for example, Dipalma v. State of New York, 936 N.Y.S.2d 464 (4th Dept. 2011) in which the claimant suffered injury when a large skid box fell off of a forklift one or two feet striking the claimant. Following the liability portion of a bifurcated trial the Court of Claims determined that defendant, the property owner, was liable for claimant’s injuries pursuant to Labor Law § 240 (1) and §241(6). In affirming with regard to the 240(1) claim The Court held;

“Defendant further contends that Labor Law § 240 (1) is inapplicable because there was no significant height differential between the skid box and the platform onto which it fell, where claimant was working at the time of the accident. We reject that contention. The “core premise” of our Labor Law § 240 (1) jurisprudence is “that a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability” (Wilinski v 334 East 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 4). Here, similar to the plaintiff in Wilinski, claimant “suffered harm that ‘flow[ed] directly from the application of the force of gravity’ ” to the object that struck him (id.). Moreover, “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603), and the experts who testified on behalf of both parties agreed that the failure to use a protective device to secure the skid box to the forklift was improper. Although the skid box fell only one or two feet before it struck claimant, in light of the weight of the skid box and its contents, as well as the potential harm that it could cause, it cannot be said that the elevation differential was deminimis (see id. at 605).”

This presentation is part of the New York State Bar Association Construction Site Accidents seminar 2011. Howard Hershenhorn is a partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz.

Mr. Hershenhorn has extensive experience in high profile personal injury cases in the areas of medical malpractice, automobile accidents, construction accidents, municipal liability and products liability.

• A California resident traveling board the Holland America Line's
  Rotterdam cruise ship sues the company for negligence.
• Jury selection is under way in a multimillion-dollar medical
  malpractice lawsuit against Indian River Medical Center, having to do
  with an infant born dead to a St. Lucie County couple in 2008 who was
  resuscitated.
• A seaman working as the chief engineer aboard a motor tug in navigable
  waters near Hawaii sues for relief under the Jones Act, alleging that
  the compression fracture to his thoracic spine.
• Family members of a Las Vegas woman who died after a botched backroom
  surgical procedure are suing her unlicensed doctors as well as two
  businesses they claim share responsibility for the tragedy.

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In this New York construction accident the motion by plaintiff's lawyers for summary judgment on his Labor Law 240(1) claim was granted by The Court in Rich v West 31st St. Assoc., LLC, 2012 NY Slip Op 00734, Decided on February 2, 2012, Appellate Division, First Department.

Plaintiff, was injured while riding a hoist at a construction site. The hoist free fell into the sub-basement, coming to rest on the springs on the bottom of the hoist way. In affirming the granting of summary judgment The Court stated;

"The unrefuted evidence establishes that the hoist came to a stop only when it reached the emergency cushion springs located in the sub-basement, an event which does not constitute normal and safe operation of the hoist. The hoist mechanism proved inadequate to shield plaintiff from the harm directly flowing from the application of the force of gravity and thus summary judgment on plaintiff's section 240(1) claim was properly granted (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]; Williams v 520 Madison Partnership, 38 AD3d 464 [2007]). Although the hoist's safety mechanism engaged, and prevented plaintiff and his coworkers from suffering more serious injuries, this does not defeat plaintiff's entitlement to summary judgment (see Lopez v Boston Props. Inc., 41 AD3d 259 [2007]; Kyle v City of New York, 268 AD2d 192 [2000], lv denied 97 NY2d 608 [2002]). Moreover, neither a lack of certainty as to exactly what preceded the accident nor the fact that plaintiff did not point to a specific defect in the hoist [*2]creates an issue of fact (see Arnaud v 140 Edgecomb LLC, 83 AD3d 507 [2011])."

See our prior Post: New York Construction Accident Law: Gasques v. State of New York,What Does It Stand For?

Our partner Stephen Mackauf will speak at the New York City Seminar, Medical Malpractice-2012. He will discuss Deposition and Trial Examination of the Defendant. This seminar is sponsored by The New York State Bar Association and is being held State wide. The New York City Seminar is scheduled for March 9, 2012 at New York Hotel Pennsylvania 401 Seventh Avenue (at 33rd St.). For more information and to register click here.

In Torres v Our Townhouse, LLC, 2012 NY Slip Op 00418 decided on January 24, 2012 The New York Appellate Division, First Department in a one paragraph decision reversed the denial of plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action and granted the motion. The Court held;

"Plaintiff was injured when he fell to the ground while descending from a 12-foot-high sidewalk bridge without the use of a ladder or scaffold or any other safety device. Defendants contend that he was provided with a ladder and that his own decision to climb down a nearby tree instead of using the ladder was the sole proximate cause of his injuries. However, the record fails to support this contention. Even if defendants' evidence suggested that there might have been a ladder in the chassis under the truck at the work site, no evidence was presented that plaintiff knew where the ladder was or that he knew he was expected to use it and for no good reason chose not to do so (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 11 [2011]). "

From RSN;

"In defending the U.S. military's medical system in court, the U.S. Department of Justice is arguing that service personnel and their families are not allowed to sue for medical malpractice regardless of the circumstance.

As a general rule, military members are barred from taking the government to court, which has been established in several court cases, in particular the 1950 Supreme Court decision in Feres v. United States. But now government lawyers are trying to expand the scope of Feres to make it impossible for families of soldiers to sue for medical malpractice, if at the time of the bad care the service member was on active duty." MORE.

• A jury recently found in favor of a plaintiff in a malpractice lawsuit,
  and awarded him and his wife a record-breaking $9 million in damages after the doctor failed to order a X-rays or a computed tomography (CT) scan of the plaintiff's neck.
• A woman injured in a wreck by a wrong-way driver claims a hospital's $20,211 fee is unreasonable for four hours of examination and diagnostic tests.
• The family of a Tolland, Connecticut boy is suing his pediatrician saying he is blind as a result of her failed diagnosis.
• A Portland attorney has filed a lawsuit seeking $32.5 million on behalf of a woman whose father blames doctors at Sacred Heart Medical Center at RiverBend in Springfield for failing to do enough to prevent his daughter from suffering permanent brain injury from a stroke.
• A Florida man and his family have won a $178 million judgment against the HCA-owned Memorial Hospital in Florida, and a doctor accused in the lawsuit of medical negligence in a case involving weight-loss surgery gone awry.
• Costa Cruise Line announced a settlement for most of the passengers who survived the tragedy that crippled the luxury cruise ship Costa Concordia two weeks ago. The agreement offers uninjured passengers about $14,460. Meanwhile, 'Cowardly' captain and negligence caused cruise ship tragedy, lawsuit claims



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In this seminar, Labor Law/Construction Site Accidents in New York, presented by the New York State Bar association on December 9, 2011 Gair discusses section 240(1) cases including Runner v New York Stock Exch., Inc. (13 NY3d 599, [2009]), Salazar v.Novalex Contracting Corp., et al., decided by The Court of Appeals on November 21, 2011, 2011 NY Slip Op 8446 and Wilinski v. 334 East 92nd Housing Development Fund Corp., et al., decided October 25, 2011, 2011 NY Slip Op 7477 among other recent cases and the current trends in the law.