Articles Posted in Construction Accident

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, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, 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.

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.”

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;

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;