"The $3.25 million settlement that the city announced this week with the estate of Sean Bell, who was shot to death by the police in 2006, serves as a reminder of a ruthless truth about calculating settlements: It is generally cheaper to settle a case in which there was a death than one in which there was a serious injury..."

"That partly explains why the family of another victim of a fatal police shooting, Amadou Diallo, refused for years to accept the city’s settlement offers, said Anthony H. Gair, the lawyer who handled the case.

“He had no children, he had no next of kin, he was making no money selling things on the street,” Mr. Gair said. “They were offering very little money — way under a million. They were arguing under New York wrongful-death law it wasn’t worth very much. And they were right.”

The city eventually increased its offer to $3 million, which the family accepted. Mr. Gair said the state’s laws on the subject were “the most antiquated, backward wrongful-death laws in the United States.”

"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."

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)."

"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.

"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."

"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.

"It cost 24-year-old Connor Donohue his life back in March, but New York City's Department of Buildings said they're taking steps to prevent another tragic fall.

What this department wants to make sure is that no tenant is put at a safety risk," said Buildings Commissioner Robert LiMandri.

Donohue fell to his death when a railing gave way on his 24th floor balcony at 330 E. 39th St. in Manhattan. The building owner failed to have the balconies inspected for 10 years. The death sparked the Department of Buildings to conduct sweeping facade inspections across the city."

Ben Rubinowitz, our partner in charge of the wrongful death suit on behalf of the Donohue family stated;

"Isn't it unfortunate that it takes a death for them to finally react, to step up and do the inspections they should have done in the first place?" click here for more.

"Contrary to the defendants' contention, the consent forms signed by the plaintiff "do not establish, as a matter of law, that the scarring that the plaintiff actually experienced as a result of the procedure was, in its nature and in its extent, consistent with the type of scarring that, prior to the procedure, the plaintiff had been told to consider as being among the reasonably forseeable risks of the proposed procedure, or that a reasonable, fully informed person in the plaintiff's position would have undergone the procedure despite the existence of such risk" (Colon v Klindt, 302 AD2d 551, 553 [internal quotation marks omitted]; see Rezvani v Somnay, 65 AD3d 537, 538-539). Nor did the defendants establish the content of additional disclosures made beyond those contained in the consent forms. The deposition testimony raises a factual dispute between the plaintiff and the defendants as to the content of additional warnings and information they may have given the plaintiff prior to surgery. The existence of triable issues of fact in the defendants' moving papers precludes a finding that they established their prima facie entitlement to judgment as a matter of law sufficient to eliminate any material issues of fact (see Brown v Outback Steakhouse, 39 AD3d 450, 451; Gray v South Nassau Communities Hosp., 245 AD2d 337; Muscatello v City of New York, 215 AD2d 463, 464)."

"Although the moving defendants made a timely demand for a change of venue, their motion for such relief was untimely. A defendant "may move to change the place of trial within fifteen days after service of the demand," unless the plaintiff consents to the change of venue within five days of service of the demand (CPLR 511[b]). Here, the motion for a change of venue, made 20 days after service of the demand, must be rejected as untimely (see Singh v Becher, 249 AD2d 154 [1998]). Contrary to moving defendants' claim, they were not entitled to the five-day extension in CPLR 2103(b)(2) for time periods measured from service by mail (see Thompson v Cuadrado, 277 AD2d 151 [2000]). Furthermore, the failure of the remaining defendants to serve a demand to change venue with or prior to their answer was fatal to their request to change venue (see Kurfis v Shore Towers Condominium, 48 AD3d 300 [2008]; CPLR 511[a])."

"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.