New York Personal Injury Attorneys Blog

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.

Ben Rubinowitz and Evan Torgan co-authored "Exposing Biased Testimony On Cross" which appeared in The New York Law Journal on February 23, 2010. The article discusses the basic elements necessary to properly attack the biased witness. The factors discussed include, Cross on Friendship, Cross On The Absence Of A Subpoena, Cross on Transportation and Cross On Refusing To Speak To The Opposing Party. After each factor a sample cross examination is presented. Rhonda E. Kay assisted in the preparation of the article.

This program sponsored by The Association of The Bar of the City Of New York will be held on Wednesday, January 20, 2010 8:00 am - 9:15 am at The New York City Bar, 42 West 44th Street, Stimson Room.

The program will focus on various aspects of litigating medical malpractice cases, with attention to pitfalls of practice and other insights, all as viewed from the perspective of an experienced trial judge and two seasoned practitioners. The distinguished panel will consist of The Honorable Douglas E. McKeon, J.S.C. and two members of the medical malpractice bar, Ben B. Rubinowitz, Esq., Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, and Glenn W. Dopf, Esq., Kopff, Nardelli & Dopf, LLP. Justice McKeon will serve as speaker and moderator.
To register click here.

For Transcript Click here http://amfix.blogs.cnn.com/2009/11/25/hotel-mogul-starts-own-health-care-system/

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

Our Partner Stephen Mackauf will speak at The New York State Bar Association Seminar: Medical Malpractice to be held on Thursday, November 19, 2009 at New York Hotel Pennsylvania, 401 Seventh Avenue (at 33rd St.) New York, NY. Stephen will speak on Discovery (Plaintiff’s Perspective). For more information click here. Stephen is considered by not only malpractice lawyers in New York but by malpractice lawyers across the Country as one of the leading Medical Malpractice Attorneys in The United States. He has lectured for years to both Doctors and Medical Malpractice Lawyers in States across The Country.

Our Partner, Jeffrey Bloom will be speaking on Summations at The New York State Bar Association Seminar: Practical Skills-Basics of Civil Practice-The Trial to be held on Wednesday, November 18, 2009 at New York Hotel Pennsylvania, 401 Seventh Avenue (at 33rd St.) New York, NY. For more information click here.

Our partner Stephen H. Mackauf will be speaking at The IQPC Program Obstetric Malpractice to be held on November 9-11 in Chicago. Stephen will be speaking on November 11th. The topic will be "What Every Lawyer Must Know About The New ACOG Standards On Fetal Heart Rate Monitoring." For more information click here.

Our partner, Jeffrey B. Bloom, was recently quoted in New York Newsday about the proposed legislative changes to New York's Medical Malpractice Insurance laws.

Mr. Bloom said that the administration proposed giving doctors a 6 to 7 percent reduction in premiums, establishing new patient safety provisions, helping the handful of malpractice insurers take excess liability off their books, and re-establishing an assessment so all the state's property and casualty companies would support the malpractice high-risk pool, not just those few writing malpractice insurance.

However, with the collapse of the financial market and troubles at insurance giant AIG, the program bill was put on hold.

By: Anthony H. Gair

Blepharoplasty basically is surgery in which excess tissue is removed from the eyelids. It is the most commonly performed cosmetic surgery on the face. Upper eyelid surgery is usually performed for removal of excess skin, muscle and fat and lower lid surgery for the removal of fat pads, so called baggy eyelids caused by herniation of periorbital fat.

The most serious complication of blepharoplasty is partial or complete loss of vision, most commonly as a result of intra-orbital hemorrhage. A widely accepted theory suggests orbital bleeding increases intraorbital and intraocular pressure, compromises the ocular circulation, and results in ischemic or optic nerve damage. Ischemic optic neuropathy and central artery occulsion are believed to be the most common final events in most cases of blindness after blepharoplasty. (Lowry JC, Bartley GB: Complications of Blepharoplasty. Surv. Ophthalmol 38:327-350, 1994).

It is thus essential, prior to surgery, for the physician to carefully assess the patient’s risk factors for bleeding. Aspirin, aspirin-containing products, other antiplatelet agents and anticoagulants should be discontinued prior to surgery. (Id. at p. 331). In this regard, the physician should obviously be aware of all medications used by the patient.

Acute orbital hemorrhage constitutes a medical and surgical emergency. Severe permanent visual impairment is likely if vascular compromise exists for more than 90 minutes. Prompt recognition and management are essential. (Id. at 332).

The following is an excerpt of a deposition of a plastic surgeon in a New York Medical Malpractice case in which the patient suffered a post-operative hemorrhage following blepharoplasty resulting in a complete loss of vision of the affected eye.

Continue reading "NEW YORK MEDICAL MALPRACTICE- BLEPHAROPLASTY" »

By Howard S. Hershenhorn and Anthony H. Gair.

In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the product properly or to follow warnings which caused the plaintiff’s injury. In New York the plaintiff’s culpable conduct is a defense in a Products Liability case. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users of products are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer in a products liability case is crucial in New York. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to product design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a product. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Product design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

Once a hazard is identified, it is the responsibility of the design engineer to design the machine so as to eliminate, or at least, reduce the possibility of injury resulting from that hazard. There is an accepted priority in the field of product design engineering with regard to the prevention of injury from an identified hazard. The first goal of the design engineer is to eliminate or design out the hazard if this can be done without destroying the functional utility of the product. Obviously, this often cannot be done. The second option is to guard against the hazard causing injury. If the hazard cannot be guarded against the final option is to warn about the potential of injury resulting from the known hazard.

In many cases involving injury caused by allegedly defective machines, the machine will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.

Continue reading "NEW YORK PRODUCTS LIABILITY-DEFECTIVE PRODUCT DESIGN" »