New York Personal Injury Attorneys Blog

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.