New York Personal Injury Attorneys Blog

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]). "

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.

For more than 25 years Ben Rubinowitz has volunteered his time teaching younger, less experienced lawyers and law students how to try cases. Based on his expertise, Mr. Rubinowitz was asked to Chair the New York State Bar Association Program on Construction Site Accidents. This is an honor bestowed on very few attorneys in the State. In this video, Ben demonstrates cross examination of a construction site foreman in a New York Construction Accident, portrayed by one of his partners, Chris Sallay.

To read the fact pattern upon which this cross examination was based click below.

Continue reading "Ben Rubinowitz: Cross Examination of a Construction Site Foreman (Chris Sallay) " »

For more than 25 years Ben Rubinowitz has volunteered his time teaching younger, less experienced lawyers and law students how to try cases. Based on his expertise, Mr. Rubinowitz was asked to Chair the New York State Bar Association Program on Construction Site Accidents. This is an honor bestowed on very few attorneys in the State. In this video, Ben demonstrates opening statements in a construction accident case in which a man was injured but both the liability and damage issues were hotly contested by the defense. Although Ben only represents plaintiffs in construction, auto, medical malpractice and products liability cases, in this demonstration, given to more than 100 attendees, Ben delivered the opening statement for both the plaintiff and the defendant. Ben Rubinowitz, a member of the Inner Circle of Advocates, has devoted his entire career to representing those who have been seriously injured through the fault of others

Christopher L. Sallay, a partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, lectures on behalf of the New York State Bar Association at the December 2, 2011 CLE Seminar "Construction Site Accidents: The Law and the Trial". Mr. Sallay discusses the Key Investigation and Case Preparation that must be undertaken by a plaintiff's attorney in a Construction Accident case in New York. Mr. Sallay is a frequent lecturer for the New York State Bar Association and has been the Assistant Planning Chair for this statewide program for several years.

Mr. Sallay has extensive experience in high profile personal injury cases in the areas of medical malpractice, automobile accidents, construction accidents, municipal liability and products liability. Mr. Sallay is responsible for all aspects of litigation, from the initial meeting of clients through the ultimate resolution of the case and has tried cases in both New York and New Jersey.

The family of Javier Salinas -- the 36-year-old construction worker from Danbury, Connecticut who in October fell more than 50 feet to his death at the Chelsea Piers construction site in New York City -- is suing his former employer, the worksite general contractors and the owners of the property where he died.

The dangers inherent to a construction site are well-known and can be prevented if simple, common-sense precautions are in place. Those dangers are particularly well-known where there are elevation-related risks involved. In fact, specific laws have been enacted to protect workers whose job requires them to perform construction activities in areas that are elevated. In this instance, a worker was killed because he was installing a roof over 40 feet in the air on a windy day. A strong gust of wind caused him to lose his balance and fall from the roof striking to a concrete slab on the ground below. The Wrongful Death of this 36-year old worker left his wife without a husband and their three children without their father. The entire accident could have been avoided if owner and contractors had taken steps to insure that there were proper safety harnesses or railings in place. In addition, a Site Safety Manager or Construction Foreman could have exercised some common sense and told the workers to not install the roof that day because it was too windy or that they should not install the roof until the safety devices were in place. Apparently, there were no safety devices at all and a tragic death occurred.

The available safety devices that would have prevented this accident include both safety harnesses and safety railings. A construction safety harness is necessary for any job that involves vertical travel or work at an elevation. Approximately 37 percent of serious injuries and deaths at construction sites are attributed to falls. Safety harnesses are attached to life lines via lanyards, which are designed to minimize injury from "jerk back" during a fall. The OSHA and ANSI requirements for safety harnesses, life lines and lanyards are matters of public record and are disseminated throughout the construction industry. In addition, OSHA compliant fall protection railing systems are also readily available and well-known throughout the construction industry to eliminate falls from roofs, open floors, and other hazardous areas on construction sites.

The construction site at which Mr. Salinas was killed clearly had no safety harnesses or safety railings in use at the time of the accident. These safety failures, coupled with the windy weather conditions that day, were certainly an accident waiting to happen. As a result of these failures, the Wrongful Death of a 36-year old man ensued.

This presentation is part of the New York State Bar Association Construction Site Accidents seminar 2009 In this segment Howard completes the opening for plaintiff followed by the opening for defendant. This years program will be held State Wide in December. Ben Rubinowitz will chair the seminar in Melville, New York on Friday December 2, 2011. For complete details see our prior post, Labor Law/Construction Site Accidents in New York.

http://www.youtube.com/watch?v=RN-gk99h9P0

This presentation is part of the New York State Bar Association Construction Site Accidents seminar 2009. This years program will be held State Wide in December. See our prior post: Labor Law/Construction Site Accidents in New York for details.

http://www.youtube.com/watch?v=vjAY3-450mw

In Salazar v.Novalex Contracting Corp., et al., decided on November 21, 2011, The New York Court of Appeals in a 4-3 decision granted defendants' motion for summary judgment dismissing a construction worker's 240(1) claim. The plaintiff suffered injury while working in the basement of a building undergoing renovation. The facts of the accident as set forth by Judge Pigott, writing for the majority were in pertinent part, as follows;

"The accident occurred in the largest room of the basement, which had a trench system,for piping. Salazar and the other workmen were laying a concrete floor. They were directed to pour and spread concrete over the entire basement floor, including the trenches. Before he began work on the day he was injured, Salazar looked for, and visuallylocated, the trenches.

The concrete flowed from a truck into wheelbarrows placed in the basement, via a chute fed through a window. Workmen poured the wet concrete from the wheelbarrows onto the floor of the basement, where Salazar and others "pulled" the concrete with rakes, ensuring that the floor would be level. As Salazar explained the next stage of the process at his deposition, the trench system fills with concrete "by itself because the concrete runs and it fills it out . . . the concrete kind of slides down or runs down" into the trenches. Salazar was injured after he stepped into a trench that was partially filled with concrete. He had been walking backwards across the floor, "pulling" concrete with a rake held in front of him, and looking forward, rather than in his direction of motion. As Salazar recalled the incident, "one of the trenches began to fill out with concrete, and at some point when I was pulling, walking backwards, . . . my foot got inside, into that hole." After Salazar's right foot hit the bottom of the trench, his right leg folded beneath him. Before being assisted out of the trench by his coworkers, Salazar tried to pull his leg out "on my own, myself, and that's how I hurt myself."

According to Salazar, the portion of the trench system into which he stepped was about 2 feet wide and "[b]etween 3 and 4 feet deep." There was no railing, barricade, or cover around or over the trench."

There is obviously a philosophical battle going on at The Court with Judge Pigott leading the faction which would read 240(1) restrictively and Judge Lippman the faction that would read it liberally. The difference is clearly enunciated in Judge Lippmann's dissent. In any event in support of the majority opinion Judge Pigott relied upon the most recent 240(1) decision by the Court in which he authored the dissent;

"In Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (__ NY3d ___ [Oct. 25, 2011]), the plaintiff was injured when a nearby wall that was being demolished fell into two 10-foot-high unsecured metal pipes, causing them to topple onto him. This Court denied summary judgment to both parties, holding that an issue of fact existed as to whether the worker's injury resulted from the absence of a safety device statutorily prescribed under Labor Law § 240 (1). In doing so, the Court contrasted the facts of Wilinski with other cases in which summary judgment dismissing the complaint would have been warranted:

Here, the pipes that caused plaintiff's injuries were not slated for demolition at the time of the accident. This stands in contrast to cases where the objects that injured the plaintiffs were themselves the target of demolition when they fell. In those instances, imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical. Here, however, securing the pipes in place as workers demolished nearby walls would not have been contrary to the objectives of the work plan

Here, the installation of a protective device of the kind that Salazar posits – assuming that such a device, although not listed in Labor Law 240 (1), was an "other device[]" within the meaning of the statute – would have been contrary to the objectives of the work plan in the basement. Salazar testified that he was directed to pour and spread concrete over the entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete. Moreover, the record is clear that the purpose of the work here was to lay concrete over the entire basement. Since the liquid concrete would necessarily fill the trench and pour out over the surrounding floor areas, it would be impractical and contrary to the very work at hand to cover the area where the concrete was being spread, particularly since the settling of concrete requires that the work of leveling be done with celerity. Given that Labor Law § 240 (1) should be construed with a common sense approach to the realities of the workplace at issue, defendants are entitled to summary judgment dismissing that claim."

In a Strongly worded dissent Judge Lippman, joined by Judges Ciparick and Jones, both of whom had been in the majority in Wilinski together with Judge Smith who was the swing vote in this case opined, inter alia;

" The majority misapplies this Court's recent holding in Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (__NY3d ___ [Oct. 25, 2011]), and errs by viewing the evidence in the light most favorable to defendants, rather than in the light most favorable to plaintiff, on defendants' motions for summary judgment. Therefore, I respectfully dissent.

The majority endeavors to create exceptions to Labor Law § 240 (1) that should not exist and to narrow arbitrarily the scope of the statute in concluding that it does not apply to this case in which an elevation-related risk was clearly present and the accident, which was caused by the force of gravity acting on the body of plaintiff, could have been prevented by the simple placement of a cover over the trench or a barrier around its perimeter. Contrary to the position taken by the majority, this is precisely the type of case to which Section 240 (1) was intended to apply."
****************************************************

" In Runner v New York Stock Exch., Inc. (13 NY3d 599, 603 [2009]), we held that 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" and that test is certainly met in this case. In Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991]), we clarified that "extent of the elevation differential" (here, measured by the depth of the trench) is not necessarily dispositive (id. at 514) and on this basis I conclude that based on plaintiff's deposition testimony as to the depth of the trench (which we must take as true for purposes of deciding defendants' motions for summary judgment), there was a significant elevation differential in this case. It is undisputed that no safety device was provided to plaintiff."

See our prior post: New York Court of Appeals Declines To Adopt The Same Level Rule In Construction Accident

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

Christopher Sallay Gair Gair Conason Steigman Mackauf Bloom & Rubinowitz

Howard S. Hershenhorn will serve as Overall Planning Chair and Christopher L. Sallay will serve as Assistant Chair of the New York Bar Association's Labor Law/Construction Site Accidents in New York Seminar on Friday, December 9, 2011. Anthony H. Gair and Ben B. Rubinowitz will also be speaking at the event. Ben B. Rubinowitz is also the chair of the Long Island seminar.

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In a must read case The New York Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., et al., decided October 25, 2011, 2011 NY Slip Op 7477, held that;

"Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 NY2d 487 [1995]) to preclude recovery under Labor Law § 240 (1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240 (1). However, in this case, an issue of fact exists as to whether the worker's injury resulted from the lack of a statutorily prescribed protective device."

The Court went on to explain Misseritti;

"We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240 (1) mandated a finding against liability (see Misseritti, 86 NY2d at 490-491; Narducci, 96 NY2d at 268-269). Thus, we decline to adopt the "same level" rule,which ignores the nuances of an appropriate section 240 (1) analysis."

The opinion contains an excellent discussion of recent case law in this area of construction accident claims brought pursuant to 240(1) and again is a must read.

In a 3-2 decision The New York Appellate Division, 3d Department, in GROVE v. CORNELL UNIVERSITY et al., 75 A.D.3d 718; 904 N.Y.S.2d 559; 2010, denied plaintiff's motion for summary judgment on his 2401(1) claim while granting defendants' cross motion dismissing the claim holding that plaintiff's own negligent conduct was, as a matter of law, the sole proximate cause of his injuries. The facts as set forth by the majority were;

"Defendant Cornell University hired defendant Skanska USA Building, Inc. as the general contractor to construct a building on its campus. Skanska subcontracted the window work to Clayton B. Obersheimer, Inc., which employed plaintiff as a glazier. Plaintiff and a coworker, William Sobel, were performing work installing rubber membranes and metal flashing on the second story windows of the building. To reach the windows, plaintiff and Sobel utilized a mechanical telescoping boom lift, as they had done previously. Attached to the boom lift was a metal basket in which plaintiff, Sobel, their tools and materials were situated. Three of the four sides of the basket were enclosed by permanent metal rails. The fourth side was enclosed by a metal gate that opened into the basket to allow for ingress and egress of the workers. The gate was designed with a spring-loaded hinge so as to automatically swing the gate to a closed position when not in use. Plaintiff and Sobel were also provided with safety harnesses and lanyards that were to be attached to the basket to prevent them from falling out of the basket while it was in the raised position. Following a work break and the retrieval of additional materials, plaintiff and Sobel reentered the lift basket and plaintiff began operating the lift, raising it to the second floor. Sobel noticed that plaintiff had not attached the lanyard on his harness to the basket and reminded him to do so. Sobel then began work on a window and, within moments, turned around and saw that plaintiff was gone and the gate was in the open position. Plaintiff fell at least 30 feet, landed on a narrow slab of concrete below and suffered significant injuries"

The majority found that the fact that the spring-loaded hinge was not operating properly did not render the gate defective and that if plaintiff had either attached his lanyard as required or closed and latched the gate manually, the provided safety devices would have prevented him from falling out of the basket. The dissent argued based on BLAKE and DUDA, that once a violation of 240(1) is shown a plaintiff's conduct can't be held as a matter of law to be the sole proximate cause of his accident, stating;

"Since we believe that the record contains factual issues regarding the Labor Law § 240 (1) cause of action, we respectfully dissent. The proof is viewed at this procedural point in the light most favorable to the party opposing summary judgment (see Kropp v Corning, Inc., 69 AD3d 1211, 1212, 893 N.Y.S.2d 371 [2010]). Plaintiff was working at a height exceeding 30 feet in a basket affixed to a boom lift. It is undisputed that the gate on the basket was not functioning properly and did not close as designed. Plaintiff testified at his deposition that he was familiar with the self-closing safety feature of the gate having used baskets so equipped previously, and that he was unaware of the gate's defective condition before his accident. Plaintiff was located immediately adjacent to the broken gate and, while working, he fell out of that gate. A jury could determine that this safety device was defective, plaintiff was not aware of the defect and he fell through the opening created by the defect.

Plaintiff was also supplied with a harness and lanyard that he conceded was either not attached or improperly attached at the time he fell. Neglecting to use an available safety device can result in dismissal when a defendant proves that a worker's "own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of [the worker's] accident" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40, 823 N.E.2d 439, 790 N.Y.S.2d 74 [2004] [emphasis added]). Indeed, a "defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by [the] plaintiff's conduct" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289, 803 N.E.2d 757, 771 N.Y.S.2d 484 n 8 [2003] [emphasis added]). A plaintiff, however, can defeat summary judgment by showing that a "'violation of section 240 (1) was a contributing cause of his [or her] fall'" (id. quoting Duda v Rouse Constr. Corp., 32 NY2d 405, 410, 298 N.E.2d 667, 345 N.Y.S.2d 524 [1973]).

Here, there is sufficient evidence in the record from which a jury could find that the failure to provide an adequate safety device, to wit, a basket with a properly operating, self-closing gate, in violation of Labor Law § 240 (1), was a contributing cause to plaintiff's fall. Moreover, defendants have not shown conclusively that the defective gate on the basket was not a proximate cause of this accident, nor have defendants established that plaintiff's conduct was the sole proximate cause of the accident (cf. Torres v Monroe Coll., 12 AD3d 261, 262, 785 N.Y.S.2d 57 [2004]). A jury should make those determinations (see Cammon v City of New York, 21 AD3d 196, 200, 799 N.Y.S.2d 455 [2005]). While plaintiff was properly denied summary judgment on this record (see Tronolone v Praxair, Inc., 22 AD3d 1031, 1033, 804 N.Y.S.2d 520 [2005]), we are not persuaded that defendants established that they were entitled to summary dismissal. Accordingly, we would modify Supreme Court's order by reversing so much thereof as granted defendants' cross motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action."

The Court of Appeals, obviously adopting the dissents opinion, in a three paragraph Memorandum decision held;

"Triable issues of fact exist as to whether defendants failed to provide an adequate safety device to plaintiff in violation of Labor Law § 240 (1) or whether plaintiff’s conduct was the sole proximate cause of his injuries." 2011 NY Slip Op 7258, October 18, 2011.

In a 3-2 decision The New York Appellate Division, 1st Department affirmed the granting of summary judgment to a construction worker on his 240(1) claim. In Reavely v.Yonkers Raceway Programs, Inc., et al., decided on October 20, 2011, the worker suffered injury while assisting in the installation of a hang wall at the edge of a building foundation. The pertinent facts as to the happening of the accident were set forth by The Court;

"Approximately 10 minutes before plaintiff approached the wall to make the cut, another contractor had finished installing waterproofing on the surface of the foundation where plaintiff would be doing the work. Plaintiff knew that it ordinarily takes at least 20 minutes for the waterproofing, which is a tar-like, viscous material, to dry. However, he was directed to make the cut immediately and did not want to defy his supervisor by waiting until he could be certain that the surface was safe. Plaintiff tested the material, and it appeared dry enough to stand on, so he commenced his work. As he was completing the cut, he attempted to replant his right foot and slipped on the viscous waterproofing. According to plaintiff's affidavit submitted in connection with the subject summary judgment motions, "When I slipped I lost my balance. My body was pulled forward and I hovered over the uncovered 10 feet trench edge without fall protection. It was 10 feet deep there because that particular section had not been backfilled. I felt that I was about to go over the edge. I reacted immediately and instinctively to teetering by trying to stand up. I also desperately tried to counter the momentum pulling me over the edge by arching back. I knew that I was holding a potentially lethal saw which I was about to go over ]with, or even worse, on. Worried about hitting my leg as well and in the process of teetering and desperately trying to prevent myself from going fully over the trench edge, my right hand came off the operating saw and it struck my right hand, thumb and forefinger before it dropped." Thus, according to plaintiff's uncontested version of events, he did not actually sustain his injury by falling into the trench, but rather by attempting to prevent himself from falling."

In rejecting the defendants' attorney's assertion that plaintiffs' Labor Law § 240(1) claim should be dismissed because plaintiff did not fall from a height, and no object fell upon him from above it held;

"In Runner v New York Stock Exch., Inc. (13 NY3d 599, 604 [2009]), the Court of Appeals confirmed that the touchstone of any case under Labor Law § 240(1) is "whether the harm flows directly from the application of the force of gravity." Consistent with that concept, a long line of cases makes clear that a worker may recover pursuant to Labor Law § 240(1) if he is injured by a gravity-related accident, even if he did not actually fall (see e.g. Pesca v City of New York, 298 AD2d 292 [2002]; Carroll v Metropolitan Life Ins. Co., 264 AD2d 336 [1999]; Dominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310 [1997]). This Court has consistently held that the statute applies where a worker was injured in the process of preventing
himself from falling (see e.g. Pesca, 298 AD2d at 292; Suwareh v State of New York, 24 AD3d 380 [2005]), or preventing himself from being struck by a falling object (see e.g. Lopez v Boston Prop. Inc., 41 AD3d 259 [2007]; Skow v Jones, Lang & Wooten Corp., 240 AD2d 194 [1997], lv denied 94 NY2d 758 [1999]). Indeed, Suwareh (24 AD3d at 380) presents facts strikingly similar to this case. There, the claimant, who was standing on a roof, was hauling a bucket of hot tar up to the roof by pulling a rope. The bucket got stuck on a ledge of the building, and, while attempting to free it, the claimant lost his balance. He leaned back so as not to fall off the roof, and as he did so, he lost control of the bucket, whose contents spilled on to his feet. This Court [*3]held that "the risk of injury was the direct result of the application of gravity to either claimant himself or the materials being hoisted" (24 AD3d at 381).

The Second Department has followed the same reasoning. In Ienco v RFD Second Ave., LLC (41 AD3d 537 [2007]), the plaintiff and his partner, while standing on a plank, were directed to remove a beam and pass it to coworkers six feet below them. When the plaintiff moved his end of the beam, it struck him in the arm. This caused him to lose his balance and "almost" fall. He was able to avoid falling by bracing his foot against a piece of metal. In doing so, however, he hit his head against a metal column and injured himself. The court rejected the plaintiff's claim to the extent it alleged that the beam that struck him in the arm was a "falling object" (41 AD3d at 539). However, to the extent the plaintiff alleged that he was a "falling worker," the court found that the defendants did not establish prima facie their entitlement to summary judgment, since " it is of no consequence that plaintiff allegedly sustained injuries as he prevented himself from falling further'" (id., quoting Ortiz v Turner Constr. Co., 28 AD3d 627, 628 [2006]).

In this case, defendants argue that the effects of gravity did not proximately cause plaintiff's injuries because he would have taken the same course of action and sustained the same injury even if there had been no trench in his immediate vicinity. They attempt to create a distinction between plaintiff's slip on the waterproofing and his sensation of falling. They do this by seizing on plaintiff's statement in his affidavit, and elsewhere, that he "reacted immediately and instinctively" as proof that he was merely attempting to recover from the sensation of slipping on the waterproofing, as opposed to the sensation of falling. However, the record demonstrates that plaintiff's slip on the surface cannot be separated, temporally or otherwise, from the act of his beginning to fall into the open trench.

Indeed, defendants ignore the balance of plaintiff's affidavit, in which he clearly stated that he was injured while responding to the sensation of actually falling into the trench. Plaintiff stated that he "was pulled forward and . . . hovered over the uncovered 10 feet trench edge" (emphasis added). He "felt that [he] was about to go over the edge," and stated that he was "teetering" and that there was "momentum pulling [him] over the edge" (emphasis added). Defendants do not contest these facts, which clearly show that plaintiff was not experiencing just the sensation of slipping when he took the course of action that led to his injury. Rather, it was the absence of a safety device such as a cover on the trench or a safety harness, that caused plaintiff to do what he did and was the proximate cause of his injuries.

The lack of a safety device was a violation of Labor Law § 240(1), and was the proximate cause of plaintiff's injuries. In concluding otherwise, the dissent is simply wrong. There is no evidence here by which a rational trier of fact could find that the presence of the trench did not play a substantial role in causing plaintiff to react the way he did. Indeed, the dissent can only take the position it does by ignoring the undisputed facts in the record and the well established case law, discussed above, that permits recovery under the statute where a worker is injured while successfully fighting the force of gravity."

The dissent asserted that the 240(1) claim should have been dismissed since;

"Here, plaintiff was working on a level concrete slab at the time of the accident. He was injured when a small section of waterproofing slipped out from under him and caused him to lose his footing, and the circular saw he was using cut into his hand. Plaintiff's injury resulted from his loss of balance on a slippery level surface, which is not related to the effect of gravity and would have occurred regardless of whether a trench was nearby. He did not fall into the trench. Therefore, any failure to cover the trench or to equip plaintiff with a harness was not the proximate cause of his injury. The record fails to provide any explanation sufficient to relate the injury sustained to the operation of the force of gravity (see Runner v New York Stock Exchange, Inc., 13 NY3d 599 [2009], supra). Rather, plaintiff's injury resulted from "the type of peril a construction worker normally encounters on the job site" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995]). The effect of gravity here was at best tangential (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

The cases cited by the majority in support of recovery under Labor Law § 240(1) are either distinguishable or do not state the circumstances under which injury was sustained (see e.g. Pesca v City of New York, 298 AD2d 292 [2002]; Carroll v Metropolitan Life Ins. Co., 264 AD2d 336 [1999]). Dominguez v Lafayette-Boynton Hous. Corp. (240 AD2d 310 [1997]) is distinguishable in that the force of gravity acted on a motorized scaffold, five stories above the ground, causing it to swing back toward the face of the building and resulting in injury to the plaintiff's wrist. In Suwareh v State (24 AD3d 380 [2005]), the plaintiff was hoisting a bucket of hot tar when it got stuck and the tar spilled onto his feet. The facts in Suwareh clearly implicate a gravity-related risk under Labor Law § 240(1) and are distinguishable from the facts of this case.

Moreover, the injury sustained by plaintiff was not proximately caused by the absence of a safety device such as a hoist, sling, hanger, rope, harness or barrier, or a cover for the trench, so as to state a viable cause of action under Labor Law § 240(1) (see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999] [no § 240(1) liability where injury results "from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance"]; cf. Suwareh, 24 AD3d at 381 [absence of hoist and proper brace]; Pesca, 298 AD2d at 293 [railing]; Carroll, 264 AD2d at 336 [unspecified safety device]; Dominguez, 240 AD2d at 312 [proper protection compromised by obstruction]; Skow, 240 AD2d at 194 ["the ship's ladder proved inadequate"]). Under the circumstances of this case, summary judgment should have been granted in favor of defendants dismissing plaintiffs' Labor Law § 240(1) claim."

In a New York construction accident case in which a worker suffered injury when he fell from a scaffold The Court rejected the recalcitrant worker defense. In Mazurett v. Rochester City School District, decided by The New York Appellate Division, 4th Department on October 7, 2011, the construction worker sustained injury when he fell from a collapsing scaffold at a construction site. In affirming the granting of summary judgment for the plaintiff on his 240(1) claim the Court rejected the defense that the plaintiff was a recalcitrant worker whose conduct was the sole proximate cause of the accident holding;

"Plaintiffs met their initial burden of establishing a prima facie violation of Labor Law § 240 (1). The fact that the scaffold collapsed “is sufficient to establish as a matter of law that the [scaffold] was not so ‘placed . . . as to give proper protection’ to plaintiff” pursuant to the statute (Dean v City of Utica, 75 AD3d 1130, 1131; see Tapia v Mario Genovesi & Sons, Inc., 72 AD3d 800, 801; see also Cantineri v Carrere, 60 AD3d 1331). In opposition to the motion, defendant failed to raise a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of his accident” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40). We reject defendant’s contention that plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed to use a more stable scaffold and to use a ladder to ascend the scaffold, defendant failed to submit any evidence that plaintiff refused to use a particular scaffold or ladder that was provided to him. “The mere presence of [other safety devices] somewhere at the work site” does not satisfy defendant’s duty to provide appropriate safety devices (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524, rearg denied 65 NY2d 1054; see Williams v City of Niagara Falls, 43 AD3d 1426; Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106). Even assuming, arguendo, that plaintiff was negligent, we conclude that his own conduct cannot be deemed the sole proximate cause of the accident inasmuch as plaintiffs established that a statutory violation was a proximate cause of plaintiff’s injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Calderon v Walgreen Co., 72 AD3d 1532, appeal dismissed 15 NY3d 900)."

In Schick v. 200 Blydenburgh, LLC, et al., 2d Department decided October 4, 2011, the plaintiff sustained injury when he fell from a ladder on which he was standing. The Court set forth the facts as follows;

"On March 9, 2007, the date of the subject accident, Pal Supply had not yet moved into the premises. That morning, the injured plaintiff (hereinafter the plaintiff), a field technician for Verizon, was assigned to provide telephone service for Pal Supply at the warehouse. According to the plaintiff's deposition testimony, upon arrival at the warehouse, he discovered that the installation of three telephone lines would involve connecting the terminal located at the telephone pole on the road to an existing underground wire leading to a serving terminal located inside the rear of the warehouse. The plaintiff testified that he thought he would then install the Network Interface Device (hereinafter the NID), which would house the three telephone lines, a few feet from this serving terminal. However, according to the plaintiff, a Pal Supply employee told him to run a wire from the serving terminal along the ceiling to an area above the office doorway, and to install the NID over the doorway.

The plaintiff further testified at his deposition that he installed the cross connection wire from the telephone pole terminal to the underground wire, tested the dial tone at the serving terminal, and attached the wire from the serving terminal along the wall leading from the serving terminal up to the ceiling. The plaintiff attached the wire to existing structural trusses using plastic zip ties, slicing off the tails of the ties with a diagonal cutter. As the plaintiff was attaching the wire to the trusses that were near the ceiling, which were approximately 20 feet high, he felt the ladder on which he was standing shift up and down, the bottom of the ladder slid out, and the plaintiff fell to the floor. The plaintiff alleged that the ladder slipped or shifted due to sand, dirt, or dust on the floor."

In reversing the granting of summary judgment on the plaintiffs' 240(1) and 241(6) causes of action the Court held;

"The defendants failed to show, prima facie, that they were entitled to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against each of them. Labor Law § 240(1) provides protection from elevation-related risks for workers engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240[1]). " [A]ltering' within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure" (Joblon v Solow, 91 NY2d 457, 465). The plaintiff's work constituted a significant physical change and, therefore, falls under the enumerated activity of "altering" within the meaning of Labor Law § 240(1) (see Scotti v Federation Dev. Corp., 289 AD2d 322; Bedassee v 3500 Snyder Ave. Owners, Corp., 266 AD2d 250, 250-251; Zgoba v Easy Shopping Corp., 246 AD2d 539, 540; Walsh v Applied Digital Data Sys., 190 AD2d 731; see also Di Giulio v Migliore, 258 AD2d 903; cf. LaGiudice v Sleepy's Inc. 67 AD3d 969, 971; Becker v ADN Design Corp. 51 AD3d 834, 836-837; Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430; Enge v Ontario County Airport Mgt. Co, LLC, 26 AD3d 896, 898; Acosta v Banco Popular 308 AD2d 48, 49; Luthi v Long Is. Resource Corp. 251 AD2d 554, 556; Cosentino v Long Is. R.R., 201 AD2d 528; Smith v Pergament Enters., of S.I., 271 AD2d 870, 870-871). The plaintiff's work also constituted construction work under Labor Law § 241(6) (see 12 NYCRR 23-1.4[b][13]; Becker v ADN Design Corp., 51 AD3d at 837; Smith v Pergament Enters. of S.I., 271 AD2d 870; Chavious v Friends Academy, 213 AD2d 509). Therefore, the Supreme Court erred in granting the motion of Pal Supply and those branches of the cross motion of 200 Blydenburgh which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action on the ground that the plaintiff's work did not fall under an enumerated activity within the meaning of section 240(1) of the Labor Law and did not constitute construction work within the meaning of section 241(6) of the Labor Law."

The Court denied plaintiffs' cross motion for summary judgment holding;

"The Supreme Court properly denied the plaintiffs' cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor law § 240(1). The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law, as issues of fact exist regarding the height at which the plaintiff was working, the condition of the floor, the condition of the rubber feet of the extension ladder, and whether the plaintiff's positioning of the ladder was the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288-289; Delahaye v Saint Anns School, 40 AD3d 679, 682)."

In Cordeiro v. TS Midtown Holdings, LLC, et al., The New York Appellate Division, First Department on September 15, 2011, granted plaintiffs' motion for partial summary judgment as to liability on their Labor Law § 240(1) claim.

The plaintiff sustained injury while preparing to remove elevator equipment from a building owned and managed by defendants by hoisting it through hatchway doors connecting a motor room with the floor below it. As plaintiff was sliding open the latch to the doors, they unexpectedly opened, causing him to fall to the floor below. Despite the fact that the doors were a permanent fixture of the building The Court in granting the motion and reversing the lower Court held;

"Plaintiffs met their prima facie burden of establishing entitlement to partial summary judgment on their Labor Law § 240(1) claim. Although the doors through which plaintiff fell were a permanent fixture of the building, they were not a "normal appurtenance," but rather, an access opening specifically built for the purpose of allowing workers to perform their work on the building elevators by hoisting materials to the building's motor rooms (Brennan v RCP Assoc., 257 AD2d 389, 391 [1999], lv dismissed 93 NY2d 889 [1999]). Accordingly, we find that the hatch in this case was a "device" within the meaning of § 240(1) (see id.; Crimi v Neves Assoc., 306 AD2d 152, 153 [2003]). Further, plaintiff did not step onto hatchway doors that opened accidentally (compare Bonura v KWK Assoc., 2 AD3d 207 [2003], and Rodgers v 72nd St. Assoc., 269 AD2d 258 [2000]). Rather, plaintiff was required to open the doors in order to hoist up the governor from the 19th floor hallway below. This exposed plaintiff to a gravity-related risk of falling into the hallway from the motor room (see Godoy v Baisley Lbr. Corp., 40 AD3d 920 [2007])."

The Court also rejected the sole proximate cause defense;

"In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]; see also Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 565 [2008]). Defendants did not submit any admissible evidence that plaintiff knew he should have used his safety harness under these circumstances, or that he knew his partner had a suitable 50-foot lifeline to which the harness could have been attached. While defendants argue that plaintiff could have tied his six-foot lanyard to a nearby beam or staircase, no evidence, expert or lay, was submitted that either of these options were appropriate anchorage sites (see Miglionico, 47 AD3d at 564-565). Accordingly, plaintiffs were entitled to partial summary judgment as to liability on their Labor Law § 240(1) claim."

Further, The Court refused to dismiss plaintiffs' 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1) regarding hazardous openings despite the fact that it was not specifically claimed until a third supplemental bill of particulars was served, without leave of court, after plaintiffs moved for summary judgment. The Court reasoned that;

"Supreme Court improperly dismissed plaintiff's Labor Law § 241(6) claim to the extent it is based on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1). Plaintiffs first alleged this particular Code provision concerning hazardous openings in a third supplemental bill of particulars served, without leave of court, after plaintiffs moved for summary judgment. However, plaintiffs' original bill of particulars claimed that defendants failed to adequately maintain the hatchway, causing plaintiff to fall when it suddenly opened. Accordingly, plaintiffs' belated identification of 12 NYCRR 23-1.7(b)(1) "entails no new factual allegations, raises no new theories of liability, and has caused no prejudice to defendant[s]" (Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 233 [2000]; see Cevallos v Morning Dun Realty, Corp., 78 AD3d 547, 549 [2010]). Further, the provision is sufficiently specific to support a Labor Law § 241(6) claim (see Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 886 [2001]), and issues of fact exist as to whether it was violated."

The New York Construction Accident Attorneys 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.

This is from a Seminar by The New York State Bar Association on New York Construction Accident Law which was held in 2008. The Seminar was developed by Howard S. Hershenhorn who was the over -all planning chair. The seminar has been held State wide since 2007. It will once again be presented by The New York State Bar Association on December 2, 2011 in Syracuse and Long Island, and December 9, 2011 in Albany and New York City. Further details will be posted.

New York State police confirmed that a 46-year-old Vermont construction worker died of injuries caused sustained in a heavy machinery construction accident.

Michael Loyer of South Burlington was working for Trenchless Technologies of New England at a railroad site in Port Kent, New York. The accident occurred while he was installing a 3-foot-diameter pipe using an auger. The auger became bound in the pipe causing him to be thrown to the ground and pinned under the auger.

One of Loyer's co-workers used a backhoe to lift the auger and free his body. An ambulance arrived to take Loyer to the hospital, where he was pronounced dead. The construction accident remains under investigation.

In THOME v. BENCHMARK MAIN TRANSIT ASSOCIATES, LLC, 4th Dept. July 8, 2011, 2011 N.Y. Slip 5884, The Court denied the plaintiff construction worker's motion for summary judgment. Plaintiff was standing on a scissor lift and, when he repositioned the scissor lift to perform his work, one of its wheels entered a hole in the floor and the scissor lift tipped over, causing plaintiff to fall and sustain injury. In denying the motion the Court held;

"We agree, however, with the further contention of defendants that they raised a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted evidence that plaintiff was aware that holes had been cut into the concrete floor of the building in which he was working and that, on the morning of his accident, plaintiff had been specifically directed not to operate the scissor lift in the area
where the holes had been cut. Further, defendants submitted evidence that plaintiff drove the raised lift into that area while looking at the ceiling rather than where the lift was going. Consequently, “[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured
plaintiff’s fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries” (Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439)."

In a dissent Justice Peradotto voted to affirm the lower court's granting of summary judgment stating;

"Contrary to the conclusion of the majority, however, I conclude that defendants failed to raise a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted the deposition testimony of the foreman on the project, who testified that, on the morning of the accident, he told plaintiff “to work in the center of the building” and away from the holes, which were located on the
“sides” of the building. According to the foreman, plaintiff’s accident occurred outside the area that the foreman defined as the “center” of the building, although he could not recall how far away from that area plaintiff was at the time of the accident. In viewing photographs of the work site, the foreman could not identify any “landmark” or other object demarcating the area he defined as the center of the building. Notably, plaintiff’s employer was hired to install struts throughout the entire building, including the area where plaintiff’s accident occurred, and the task required plaintiff to move the scissor lift around the building. In any event, even assuming, arguendo, that plaintiff was “specifically directed not to operate the scissor lift in the area where the holes had been cut,” as the majority states, defendants’ “nondelegable duty under [Labor Law §] 240 (1) is not met merely by providing safety instructions . . ., but by furnishing, placing and operating [safety] devices so as to give [plaintiff] proper protection” (Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086 [internal quotation marks omitted] [emphasis added]; see Haystrand v County of Ontario, 207 AD2d 978). Here, “the fact that the scissor lift tipped establishes that it was not so ‘placed . . . as to give proper protection’ to plaintiff” (Ward, 13 AD3d 1098, quoting § 240 [1]). Thus, inasmuch as plaintiff established that the accident was caused, at least in part, by a statutory violation, his actions cannot be the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106)."

The New York Construction Accident Attorneys 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 Losito v Manlyn Dev. Group, Inc., 2011 NY Slip Op 05463, Second Department, June 21, 2011, the plaintiff was required to jump through some hoops but finally prevailed on his cause of action claiming a violation of Section 240(1) of The New York Labor Law.

On January 16, 2009 The lower court denied plaintiff's motion for summary judgment. Thereafter following a jury verdict for defendants and entry of judgment on same, The Second Department, on April 19, 2011, reversed the judgment, reinstated the 240(1) cause of action and granted plaintiff's original motion on his 240(1) cause of action. Based on the facts as set forth in the opinion it is difficult to understand why the motion was denied in the first place. The Court held as follows;

"The plaintiff, on his motion for summary judgment on the cause of action alleging a violation of Labor Law § 240(1), against the defendants Manlyn Development Group, Inc., and FB of Long Island, LLC (hereinafter together the respondents), established, prima facie, that the A-frame ladder on which he was standing was defective and collapsed, causing his injuries (see Monioudis v City of New York, 82 AD3d 945; Zhu Wei Shi v Jun Lan Zhang, 76 AD3d 558, 559; Sozzi v Gramercy Realty Co. No. 2, 304 AD2d 555, 556).

In opposition, the respondents failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560). In particular, the respondents failed to raise a triable issue of fact as to whether the foreman's act of stepping on the back of the plaintiff's ladder just before it broke was a "of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve [them] of liability" (deSousa v Dayton T. Brown, Inc., 280 AD2d 447, 448; see Quinteros v P. DeBlasio, Inc., 82 AD3d 861; Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, [*2]175; Van Eken v Consolidated Edison Co. of N.Y., 294 AD2d 352, 353; Cordero v Kaiser Org., 288 AD2d 424, 426; Mooney v PCM Dev. Co., 238 AD2d 487)."
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The leading case on the question of “superceding cause” remains The Court of Appeals decision in Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831 (1983) which clearly set forth the circumstances under which a defendant will be relieved of liability by an intervening act;

“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant (see, e.g., Martinez v. Lazaroff, 48 N.Y.2d 819, 424 N.Y.S.2d 126, 399 N.E.2d 1148;Kingsland v. Erie County Agric. Soc., 298 N.Y. 409, 84 N.E.2d 38, supra; Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529; Hallenbeck v. Lone Tar Cement Corp., 273 App. Div. 327, 77 N.Y.S.2d 807, affd. No opn.299 N.Y. 777, 87 N.E.2d 679). When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist (see Derdiarian v. Felix Constr. Co., supra; Paravi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960; Prosser, Torts [4th ed.], Section 44, pp. 272-280).”

The New York Construction Accident Attorneys 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 KARCZ v. KLEWIN BUILDING COMPANY, INC.,et. al., 4th Department, June 10, 2011, The Court affirmed summary judgment for the plaintiff on his 240(1) claim. The plaintiff had lifted a truss overhead onto the aerial platform of a scissor lift. The truss fell on him causing him to suffer injury. In affirming The Court held;

"The truss fell and struck plaintiff because of the absence or inadequacy of a safety device of the kind enumerated in Labor Law § 240 (1) (see Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071-1072; Ullman v Musall, 306 AD2d 813). Thus, “the harm [to plaintiff] flow[ed] directly from the application of the force of gravity” (Runner v NewYork Stock Exch., Inc., 13 NY3d 599, 604). We reject defendants’contention that plaintiff’s actions were the sole proximate cause of the accident. Rather, those actions, insofar as plaintiff may have moved toward the falling truss in an attempt to prevent it fromfalling, raise “at most, an issue of comparative negligence,” which is not an available defense under section 240 (1) (Dean v City of Utica,75 AD3d 1130, 1131)."

For those of you in The 4th Department The Court held that under the circumstances of this case the court rejected defendants’ contention that Labor Law vicarious liability provisions did not apply because plaintiff sustained the injury on an Indian reservation, i.e., that of the Seneca Nation.

The New York Construction Accident Attorneys 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 Nascimento v Bridgehampton Constr. Corp., New York Appellate Division, First Department, June 2, 2011, The Court dealt with the oft presented question as to whether a sub-contractor was a statutory agent of the general contractor for purposes of liability pursuant to New York Labor Law Sections 240(1) and 241(6). The facts of the case may be found by clicking on the decision above. What is interesting about this case is that it presents an excellent review of the law regarding this much litigated area which the Court discussed as follows:

"Initially, we reject plaintiff's broad assertion; the law does not hold that all subcontractors in the "chain of command" are necessarily as liable as the general contractor. Rather, as a subcontractor rather than the general contractor, Bayview may be held liable for plaintiff's injuries under Labor Law §§ 240(1) and 241(6) only if it had the authority to supervise and control the work giving rise to the obligations imposed by these statutes, which would render it the general contractor's statutory agent (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Murphy v Herbert Constr. Co., 297 AD2d 503 [2002]; Vieira v Tishman Constr. Corp., 255 AD2d 235 [1998]). To be treated as a statutory agent, the subcontractor must have been "delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury" (Headen v Progressive Painting Corp., 160 AD2d 319, 320 [1990]). If the subcontractor's area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory (see Sabato v New York Life Ins. Co., 259 AD2d 535 [1999]; Headen, 160 AD2d at 319).

Subcontractors have been held to be the statutory agents of general contractors in situations in which provisions of the subcontracts explicitly granted supervisory authority (see Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]; Nephew v Klewin Bldg. Co., 21 AD3d 1419, 1421 [2005]), and those in which evidence showed that the subcontractors actually exercised supervisory authority (see Everitt v Nozkowski, 285 AD2d 442, 444 [2001]). Additionally, evidence that a subcontractor delegated the requisite supervision and control to another subcontractor has been cited as forming part of the proof that the first subcontractor formerly possessed that authority, and may justify imposing Labor Law liability on the first subcontractor as a statutory agent of the general contractor (see Weber v Baccarat, 70 AD3d at 488; Everitt v Nozkowski, 285 AD2d at 444). "

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.

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 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.

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.

In Fox v H&M Hennes & Mauritz, L.P;et.al., 2011 NY Slip Op 03205, decided April 19, 2011, The Appellate Division, Second Department rejected defendant's claim that plaintiff was enagaed in routine maintenance and thus Section 240(1) was not applicable.

The facts as set forth by The Court were as follows;

"The plaintiff was employed by the fourth-party defendant Garrity Electric, Inc. (hereinafter Garrity), as a mechanic performing general electrical contracting work. Pursuant to an agreement between the defendant third-party plaintiff, H & M Hennes & Mauritz, L.P. (hereinafter H & M), and the third-party defendant/fourth party plaintiff Maintenance, Etc., LLC (hereinafter Maintenance), which provides retail companies with vendors for construction services, Garrity was hired to replace bulbs and ballasts/transformers in 78 overhead light fixtures, located approximately 12 feet above the floor, in a retail store leased by H & M. Garrity had done business with H & M since 2000, performing electrical work for which it was paid the sum of $30,000 to $50,000 per year. Garrity furnished a team of "seven or eight" workers, including the plaintiff, which was led by a team foreman, to perform the subject work in the H & M store. The plaintiff allegedly was injured when he fell from a ladder while engaged in this work. The Supreme Court, inter alia, granted the plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action."

In holding that the plaintiff was engaged in repair work at the time of his injury and thus covered by The Statute it stated:

"Contrary to H & M's contention, the provisions of the statute apply to the facts of this case. When viewed in isolation, the plaintiff's task of replacing a transformer might be considered routine maintenance (see Deoki v Abner Props. Co., 48 AD3d 510; Sanacore v Solla, 284 AD2d 321). However, the issue of whether any particular task "falls within section 240(1) must be determined on a case-by-case basis, depending on the context of the work" (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 883 [emphasis added]). Here, in view of the agreement between Garrity and H & M, the plaintiff's position as a mechanic at Garrity assigned to perform general electrical work, and the overall scope of the entire job which Garrity was engaged to perform at the store, the task which the plaintiff was performing at the time of the accident was a repair, as opposed to routine maintenance (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d at 883; Fitzpatrick v State of New York, 25 AD3d 755; see also Nowakowski v Douglas Elliman Realty, LLC, 78 AD3d 1033; cf. Deoki v Abner Props. Co., 48 AD3d 510)."

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 in construction accidents in New York.

By Anthony H. Gair,
In Arnaud v. 140 Edgecomb LLC, et al., decided on April 14, 2011, The New York Appellate Division, First Department, reversed the denial of summary judgment in a construction accident case on a construction worker's New York Labor Law 240(1) cause of action.

Plaintiff was working at a building undergoing renovation. Plaintiff and a co-worker were moving wood planks from the fourth floor to the second floor, by use of a pulley and ropes. While plaintiff was on the second floor, with his arms outstretched through a window to grab the wood as it was lowered, he was suddenly struck by a plank, which caused injury to his wrist and fingers. While we believe the decision was correct it seems the Courts are continuing to have trouble interpreting Runner v New York Stock Exch., Inc. The Court stated as follows;

"The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and the decisive question as to whether the statute applies to a particular accident is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against harm directly flowing from the application of the force of gravity to an object or person (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993])."

In fact in Runner, The Court stated, "Rather, 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." In the context of the facts of Runner The Court Stated "Manifestly, the applicability of the statute in a falling object case such as the one before us does not under this essential formulation depend upon whether the object has hit the worker. The relevant inquiry—one which may be answered in the affirmative even in situations where the object does not fall on the worker—is rather whether the harm flows directly from the application of the force of gravity to the object." In Arnaud The Court went on to hold;

"Nor does the fact that plaintiff did not point to any particular defect in the pulley defeat his entitlement to summary judgment (see Harris v 170 E. End Ave., LLC, 71 AD3d 408 [2010], lv dismissed 15 NY3d 911 [2010]; Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289 [2002]). Labor Law § 240(1) provides for liability where safety equipment such as hoists are not "placed and operated as to give proper protection." Thus, it is not necessary that plaintiff establish that the pulley was defective, only that he was not given "proper protection" (see Williams v 520 Madison Partnership, 38 AD3d 464 [2007]). "

In regard to Runner and Hoists see our prior post, New York Construction Accident Law: Gasques v. State of New York,What Does It Stand For?

In regard to falling objects see our prior post, New York Construction Accidents-The Demise of "Secured" in Falling Object Cases?

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 in construction accidents in New York.

In Jose Miguel Moran v 200 Varick Street Associates, LLC, et al., 80 A.D.3d 581; 914 N.Y.S.2d 307, The Court granted the plaintiff's motion for summary judgment on his 240(1) cause of action. The plaintiff suffered injury when he fell from a scaffold that lacked proper safety railings. Of particular interest is The Court's holding regarding intoxication of the injured worker;

"The evidence that the plaintiff was not engaged in a statutorily protected activity or was intoxicated was not admissible (see Zuckerman v City of New York, 49 NY2d 557, 563, 404 N.E.2d 718, 427 N.Y.S.2d 595; Maniscalco v Liro Eng'g Constr. Mgt., 305 A.D.2d 378, 380, 759 N.Y.S.2d 163; Madalinski v Structure-Tone, Inc., 47 AD3d at 688). Moreover, since the scaffold lacked safety railings, the defendant's alleged intoxication was not the sole proximate cause of his injuries (see Bondanella v Rosenfeld, 298 AD2d 941, 942, 747 N.Y.S.2d 645; Podbielski v KMO-361 Realty Assocs.., 294 A.D.2d 552, 553-554, 742 N.Y.S.2d 664; Sergeant v Murphy Family Trust, 284 AD2d 991, 992, 726 N.Y.S.2d 537)."

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 in construction accidents in New York.

By Anthony H. Gair

In Gasques v. State of New York, 15 N.Y.3d 869, 910 N.Y.S.2d 415 (Ct. Apps. 2010), , a two paragraph decision with regard to Section 240(1) the Court stated as follows:

“Claimant Wanderlei Gasques was injured while repainting the inside of a leg of the Kosciuszko Bridge, using a ‘spider scaffold.’ His hand was injured when it became caught between the scaffold and the leg of the bridge, while the scaffold was ascending.

With respect to claimants’ Labor Law §240(1) cause of action, the parties agree that Gasques’s hand was crushed because the scaffold continued to move, under the impetus of one of its motors, while his hand was trapped between an external motor control on the scaffold and the steel of the bridge. This injury was not the direct consequence of the application of the force of gravity to an object or person (see Runner v. New York Stock Exch., Inc., 13 NY3d 599, 604, 922 N.E.2d 865, 895 N.Y.S.2d 279 [2009]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993]). Therefore claimants’ Labor Law §240(1) claim was properly dismissed.”

On first reading this decision one might conclude that in future cases a defendant might argue that there is no Section 240(1) liability if;

1. A motorized hoist or scaffold is involved.

2. Gravity is not involved if the hoist or scaffold is going up.

3. No 240(1) liability because no elevation related differential.

If one watches the oral argument on The New York Court of Appeals web site one could reasonably conclude that the basis of the decision was that the scaffold was going up since The Justices asked numerous questions as to how gravity could be involved since the scaffold was going up.

It is submitted that the basis for the Court’s decision had nothing to do with the scaffold being motorized or the fact that it was going up but the fact that there was no elevation related differential involved. This seems clear since the Court cited Runner v. New York Stock Exchange, supra.

Continue reading "New York Construction Accident Law: Gasques v. State of New York,What Does It Stand For?" »

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)."

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.

In this New York Construction Accident case The Second Department granted plaintiff"s motion for summary judgment on his 240(1) cause of action. The facts as set forth by the Court were as follows;

"In August 2004 the plaintiff was working as a carpenter on a project involving renovation of office space for the lessee of that space, the defendant Orthopedic Associates of Dutchess County, P.C. (hereinafter the defendant). The plaintiff alleged that debris, including metal studs 10 to 12 feet long, were thrown down a chute from the fourth floor of the subject building, and that he was responsible for unclogging the bottom of the chute on the ground floor. He further alleged that he was injured when, while clearing the chute, he was struck on the hand and lower arm by one of those metal studs that had either been (a) deposited into the chute on the fourth floor and fell down the interior of the chute before striking him as he worked on the ground floor, (b) deposited into the chute on the fourth floor, and became blocked by a stud lodged near the bottom of the chute, but again began to fall when the plaintiff dislodged the lower stud, or (c) lodged near the bottom of the chute, but had become dislodged when another metal stud fell several stories down the interior of the chute and struck it."

In granting the motion the Court citing Runner stated, " The Court of Appeals has recently stated that "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 at 603). The Court went on to state;

" The debris that was being removed from the fourth floor was thrown down a chute, and the plaintiff alleged that his injuries were caused by the descent of a 10-to-12-foot-long metal stud from the fourth floor—either striking him directly or striking a lodged stud that became dislodged and thereafter struck him—or by a metal stud falling from above or atop another metal stud that he was in the process of removing from the chute. These scenarios implicate the protections of Labor Law § 240(1), because, in any of these situations, the plaintiff's injuries were caused either by the inadequacy of the chute in protecting him from the elevation-related risk resulting from the disposal of the debris down that chute, or the failure to employ hoists, pulleys, or scaffolds for the removal of the debris, which might have provided the necessary protection (see Baker v Barron's Educ. Serv. Corp., 248 AD2d 655; cf. Roberts v General Elec. Co., 97 NY2d 737, 738; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268-269)."

Although the Court did cite Narducci, see our prior post from March 2010, New York Construction Accidents-The Demise of "Secured" in Falling Object Cases?

The New York State Bar Association has chosen Howard S. Hershenhorn of Gair,Gair,Conason,Steigman,Mackauf,Bloom and Rubinowitz as The Overall Planning Chair of its annual Construction Site Accidents Program to be held on Nov 19, Dec 3, and Dec 10. Our Partner, Christopher L. Sallay is the Assistant Planning Chair. Also Participating from our Firm are Ben B. Rubinowitz, Chair of The Long Island Program. Robert L. Conason and Anthony H. Gair will also be speaking at the program. In addition to serving as overall Planning Chair, Howard S. Hershenhorn will be demonstrating both plaintiff's and defendants's opening statements at The New York City Program as will Ben B. Rubinowitz at The Long Island Program. Robert L. Conason will be giving a demonstration of a Plaintiff's Closing Argument at The New York City Program. Anthony H. Gair will speak on The Current State of the Labor Law at The Long Island and New York City Programs.

In describing the program Mr Hershenhorn said, "We are honored to be asked to chair this important program on Construction Site Accidents. We have always sought to share our expertise with other attorneys in the field and we have asked some of the very best attorneys throughout New York State to join us." GGCSMBR has achieved some of the largest awards in the Country for those who have been injured as a result of safety failures at Construction job sites. The firms expertise has brought them National acclaim in the field. Click on the following for information for each location.

(F) November 19, 2010 Albany New York State Nurses Association
(F) November 19, 2010 Long Island Long Island Marriott
(F) December 3, 2010 NYC New York Hotel Pennsylvania
(F) December 3, 2010 Syracuse Sheraton Syracuse University Hotel
(F) December 10, 2010 Buffalo Holiday Inn Amherst

This Seminar presented by The New York State Bar Association is still available. A construction worker involved in a work related accident in addition to a workers’ compensation claim may have a third party law suit against the general contractor and/or owner of the construction site pursuant to Sections 200, 240 and 241(6) of the New York Labor Law.

The first half of this seminar provides an overview of the case law, statutes and regulations governing construction site accidents. There is also discussion concerning the important aspects of the relationships between and among the carriers and their insureds. In the second half of the seminar, presenters address strategic, evidentiary and tactical concerns and provide live demonstrations of critical components of the trial of a labor law case. Panelists offer advice on jury selection, opening and closing statements, cross-examination and trial strategies. New and experienced practitioners alike will benefit from this seminar’s coverage of all the major aspect of a labor law trial.

Our Partner, Howard S. Hershenhorn was The Overall Planning Chair Of This New York State Bar Association Program and our Partner, Christopher L. Sallay was the Assistant Planning Chair. To order directly from The NYSBA click here.

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.

Once again our Partner Howard Hershenhorn was forced to respond to the ludicrous assertion by lawyers for master rigger William Rapetti who chose to rely on four pre-used and worn-out yellow polyester straps -- called "slings," -- to secure a five-ton metal brace to the crane's mast that Wayne Blinder, the Crane operator was at fault. The crane's boom and its cab -- with Wayne Bleidner, 51, helpless at the controls -- broke off from the rest of the crane and catapulted onto the roof of a four-story brownstone on East 50th Street. Howard, quoted in The New York Post stated;

"It really cries of desperation," says Bleidner's lawyer Howard Hershenhorn, who is handling the family's suit against Rapetti's company.

"There have been four separate entities that have looked at this accident objectively -- OSHA, the Department of Buildings, an engineering firm hired by the Department of Buildings, and Lehigh University, where the slings were sent," Hershenhorn said.

"They have all said clearly and unequivocably that the accident was caused by the slings," Hershenhorn said.

"To make matters worse, they are with this defense blaming the victim, who has never been involved in an incident before in 25 years as a crane operator -- and who is not around to defend himself."

Our Partner, Howard Hershenhorn, who is leading our representation of the family of the crane operator Wayne Bleidner, who was killed when a 200-foot-tall rig crashed down on a dense New York City block, killing seven people, leaving a gash of destruction near the United Nations and raising questions about the safety of the steel spindles that build skyscrapers, responded to the absurd claim by the rigger's attorney who is being prosecuted for manslaughter, that some responsibility may lie with a crane operator who was killed in the collapse stating;

"Instead of Rapetti stepping up and taking responsibility for what multiple agencies and multiple independent parties have determined to be his fault, he now, in the most cowardly way, is going to blame the victim." Read More.

Howard is recognized as one of the leading Construction Accident Lawyers in New York having tried numerous construction accident cases as well as speaking on them for The New York State Bar Association.

For those who have practiced in the area of New York Construction Accidents both plaintiff and defense attorneys can agree on one point: the law interpreting New York Labor Law, Section 240(1) is constantly changing. The pendulum swings back and forth. For a brief discussion of the ever changing law click here. With regard to falling objects, prior to 2001 if an object at a New York Construction Site fell striking a worker the plaintiff won. Then in May of 2001 that changed with the decision by The Court of Appeals in Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 750 N.E.2d 1085, 727 N.Y.S.2d 37 [2001]) in which The Court held;

"With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to "a significant risk inherent in … the relative elevation … at which materials or loads must be positioned or secured" ( Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 514). Thus, for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute..."

What followed was a rash of dismissed "falling object" cases. Then in 2005 The Court in Outar v City of New York, 5 NY3d 731, 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 affirmed summary judgment for the plaintiff who had been injured when struck by a falling Dolly holding "The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240 (1)'s protection, and the dolly was an object that required securing for the purposes of the undertaking..."

Narducci went silently into the night with The Court's holding in, Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758, 896 N.E.2d 75, 866 N.Y.S.2d 592 wherein The Court held; "As our holding in Outar v City of New York indicates, "falling object" liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured..."

On March 2, 2010 The New York Appellate Division,1st. Dept. decided Harris v. 170 E. End Ave., LLC, 2010 NY Slip Op 01691. The facts as set forth by The Court were;

"Plaintiff, a steel worker, was injured during the construction of a 19-story condominium building. At the time of the accident, plaintiff was standing on the eighth floor of the structure. He was assisting in landing steel reinforcing bars on that floor, which were being lowered from the twelfth to the eighth floor by a crane. During the descent, the crane's cable struck a bundle of several hundred 4-inch by 4-inch by 16-foot wooden beams known as stringers or reshore. The bundle was situated on the tenth floor. The crane cable dislodged the bundle from its perch, causing the bundle to fall to the eighth floor, striking plaintiff and his co-worker. The co-worker died from his injuries.

Plaintiff moved for summary judgment under Labor Law § 240(1). He claimed that the statute applied because the accident was caused by the operation of gravity, insofar as the bundle of stringers was above him, and fell because of the absence of an adequate safety device. Defendants cross-moved for summary judgment to dismiss the entire complaint, which also alleged violations of Labor Law sections 200 and 241(6). With respect to the section 240(1) claim, they argued that there was no violation because the bundle of stringers which struck plaintiff was properly secured. To support this contention, they submitted the affidavit of an expert who opined that defendants utilized the standard practice and procedure for storing stringers." In affirming summary judgment for the plaintiff The Court held;

"Even assuming, without deciding, that defendants established that the bundle of stringers was secured in accordance with industry practice, summary judgment was properly granted to plaintiff on his claim pursuant to Labor Law § 240(1). That section "evinces a clear legislative intent to provide exceptional protection' for workers against the special hazards' that arise when the work site either is itself elevated or is positioned below the level where materials or load [are] hoisted or secured'" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993], quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The statute is one of strict liability. Therefore, it is irrelevant that a safety device was provided if an accident that the device was intended to prevent still befalls the plaintiff. Here, the bundle of stringers fell as a result of a foreseeable construction-related accident, not an act of God or other calamity which defendants could not have anticipated. Thus, section 240(1) was violated, notwithstanding that the bundle may have been chocked in accordance with industry protocol."

Given recent New York Court of Appeals decisions in construction accident cases involving Section 240(1), see, Runner v New York Stock Exchange, Inc., NY3d, 2009 WL 4840213, 2009 NY Slip Op 09310, 2009, it is submitted that the pendulum has swung back, i.e. an object at a construction site falls from a height plaintiff wins.

From The New York Daily News;

The owner of the city's largest construction crane company ( New York Crane and Equipment Company) is expected to be indicted for manslaughter in the death of two workers killed in an upper East Side disaster nearly two years ago.

For more information on New York Crane Accidents contact our New York Construction Accident Lawyers.

Our Partner, Howard S. Hershenhorn is The Overall Planning Chair Of This New York State Bar Association Program and our Partner, Christopher L. Sallay is the Assistant Planning Chair. Also Participating from our Firm are Ben B. Rubinowitz, Chair of The Long Island Program. Our partners, Robert L. Conason and Anthony H. Gair will also be speaking at the program. Bob Conason will be speaking at both the New York City and Long Island Seminars. Below are Links to the locations, dates and description of the Program.

Friday, November 20, 2009 Buffalo- http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3584

Friday, December 4, 2009 Latham- http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3585

Friday, December 4, 2009 Hauppauge - http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3588

Friday, December 11, 2009 New York City - http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3586

Friday, December 11, 2009 Syracuse - http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3587

This is from a Seminar by The New York State Bar Association, Construction Site Accidents: The Trial of a Labor Law Case. The Seminar was developed by Howard S. Hershenhorn who was the over -all planning chair. In this segment Mr. Hershenhorn gives a demonstration of an opening statement on behalf of a worker injured in a New York Construction Accident. The full seminar is recorded and available for CLE Credits from The NYSBA.

For more information on New York construction accidents contact the New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz.

In Parente v 277 Park Ave. LLC, decided June 25, 2009, The New York Appellate Division, First Department granted plaintiff's motion for summary judgment under Section 240 of The New York State Labor Law.
The plaintiff was injured when he fell off a ladder he had placed on a desktop in an office leased by defendant Chase, while inspecting a malfunctioning booster fan over the desk. In rejecting the defendants' argument that the work was only routine maintenance The Court held:

Labor Law § 240(1) imposes absolute liability on owners, contractors and their agents for injuries to workers engaged in the repairing of a building or structure that results from falls from ladders or other similar devices that do not provide the intended protection against such falls (see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290 [2002]). It does not, however, apply to routine maintenance that is not performed in the context of construction or renovation. Replacement of parts that routinely wear out is considered maintenance, outside the purview of this section (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]). Where something has gone awry, however, requiring repair, § 240(1) is applicable (see Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200, 201-202 [2002]; Franco v Jemal, 280 AD2d 409 [2001]).

No evidence was presented that the cause of the booster fan's malfunction was wear and tear on the power box motor and that only routine maintenance was required to fix the booster fan. Although the injured plaintiff stated this was sometimes a problem, neither he nor his supervisor actually knew the reason for the fan's breakdown, so he went to work on this particular weekend to investigate. An employee of the tenant testified that booster fans did not break down on a regular basis. Thus, plaintiff was not engaged in routine maintenance when he fell. Instead, he was attempting to repair a broken fan by first ascertaining the cause of the breakdown.

In Campuzano v. Board of Education of the City of New York, JJ Lyons Associates, Inc; Decided on August 12, 2008, The First Department reversed the denial of Plaintiffs’ motion for partial summary judgment on Labor Law § 240(1) and granted the motion. The facts as set forth in The opinion of The Court were as follows;

"Plaintiff Joaquin Campuzano and a coworker, while performing asbestos abatement work, were removing a heavy duct from a ceiling by cutting it with an acetylene torch. They started this work on a scaffold, but Campuzano determined it was dangerous to work that way, and decided instead to set up a ladder adjacent to the scaffold. While Campuzano was standing on the ladder and holding the hoses for the torch, a portion of the duct fell, hitting him and the ladder and knocking him to the ground."

In granting plaintiffs’240(1) Motion The Court held;

"Plaintiffs made a prima facie showing that defendants violated Labor Law § 240(1), i.e., failed to provide Campuzano with an adequate safety device, and that the violation was a proximate cause of the accident. Thus, plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on their Labor Law § 240(1) claim (see Kosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287 [2008]; see also Panek v County of Albany, 99 NY2d 452, 458 [2003]). In opposition, defendants failed to raise a triable issue of fact regarding whether the ladder was an adequate safety device or Campuzano's own acts or omissions were the sole proximate cause of the accident (see Kosavick, supra; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). In particular, there is no evidence controverting Campuzano's assertions that the ladder was a safer method of proceeding with the assigned job; that the scaffold was too small for two employees safely to stand on while performing the work; [*2]and that Campuzano was never instructed not to use a ladder in addition to the scaffold. Thus, summary judgment should be granted to plaintiffs on their Labor Law § 240(1) claim."

In Bradley vIBEX Construction, et al. decided June 26th, 2008, The First Dept. reversed the lower Court's decision denying plaintiffs' motion to set aside a verdict for defendants and granted the motion and directed judgment be entered in favor of plaintiffs on the issue of liability pursuant to § 240(1), and remanded for a trial on damages and apportionment of fault among defendants.

The Court held that plaintiffs' motion for partial summary judgment was properly denied. It further held the denial of plaintiffs' motion for a directed verdict on the issue of liability was proper as there was an issue of fact as to whether the alleged violation of § 240(1) proximately caused his accident. However, in granting plaintiffs' motion to set aside the verdict The Court held;

In Morales v. D & A Food Service, et.al; June 25th 2008, The Court Of Appeals in reversing The First Depatrment's dismissal of plaintiff's Section 240(1) claim held;

"The order of the Appellate Division should be reversed, with costs, defendant Santomero's motion for summary judgment denied, plaintiff's cross motion for partial summary judgment on his Labor Law § 240 (1) cause of action against defendant Santomero granted and certified question answered in the negative.

Contrary to defendant's argument, plaintiff's work constituted an alteration within the meaning of Labor Law § 240 (1) (see Joblon v Solow, 91 NY2d 457, 465 [1998]). In light of our recent decision in Sanatass v Consolidated Inv. Co., Inc. (10 NY3d 333 [2008]), defendant's contention that he lacks a sufficient nexus with plaintiff to support liability under section 240 (1) is without merit. Since plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his section 240 (1) claim and defendant failed to raise a triable issue of fact in opposition thereto, plaintiff is entitled to partial summary judgment on liability. "

The facts as set forth in The Appellate Division's decision were that;

"Without obtaining landlord's approval or even notifying landlord, tenant hired plaintiff to make repairs and changes to the premises. On plaintiff's last scheduled day of work, tenant supplied him with an extension ladder to enable him to reach the top of a 10-to 12-foot wall, where he drilled a hole and passed through telephone cables. As plaintiff began to descend the ladder, which was leaning against the wall and was not held by anyone, it slipped and he fell to the floor."

"Because the work was performed without landlord's knowledge, and in violation of the lease requirement that tenant obtain prior consent, the landlord cannot be held liable under Labor Law § 240(1)"

From amnewyork By David Freedlander;

Twenty of the city's high-rise crane returned to operation last week, but many of them are on construction sites that have received dozens of complaints and violations for unsafe working conditions.

The complaints range from the mundane to the alarming, but in the light of two deadly crane collapses this spring, both of which occurred on construction sites with a history of violations, some say any infraction raises red flags.

"Any site that is operating a high-rise crane with too many violations should be shut down and the individuals hauled off to jail," said Councilman Tony Avella, (D-Bayside). "How stupid are we that we allow this to go on?" Read More

The New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman and Mackauf have years of experience representing victims of crane accidents and construction accidents in New York.

NEW YORK (AP) — Building department officials gathered for an emergency safety summit Saturday after the city's second deadly crane collapse in recent weeks, while lawmakers warned of dangers in New York's building boom — especially the 250 cranes still up in the sky.

"I don't want to hear from more constituents that they're afraid to sit on their couches," City Council member Jessica Lappin said at a news conference near the site of the accident on Manhattan's Upper East Side.

She joined Manhattan Borough President Scott Stringer, who called on the city to treat rising buildings as "a public safety crisis," with the police and fire departments forming a task force with investigators and other experts to keep close watch on all construction.
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These recurring accidents are the result of the failure to provide construction workers with a safe place to work. They also pose an intolerable danger to all New Yorkers. The unsafe conditions at construction sites are a direct result of the defunding of O.S.H.A. by the Bush Administration. There are no longer enough O.S.H.A. inspectors to inspect construction sites to see that they comply with O.S.H.A. regulations. The New York Construction Accident Lawyers at Gair Gair Conason Steigman and Mackauf have over 40 years of experience representing those injured in construction accidents including crane accidents.