Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Construction Accident

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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;

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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;

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ConsrtuctionSiteAccidents2010Update4.jpg 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

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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.

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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.”

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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;

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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.

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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.

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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.

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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…”