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.
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pf_ny_logo.gifIn their Trial Advocacy feature, Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf and Evan Torgan of Torgan & Cooper discuss how implementing oratory tools such as analogies, metaphors, memorable phrases and short stories during a summation can, if properly used, work to help a jury reach an intended verdict.

Ben Rubinowitz and Evan Torgan

The task for trial lawyers in delivering a powerful summation requires them to find a way to captivate the jurors’ attention and compel them to vote in your favor. Too often, lawyers merely recite the facts that the jurors have heard ad nauseam without any regard to meaningful advocacy. The summation is the time to make the argument come alive. It is the time to persuade. It is the time to give the jurors ammunition to support your position during their deliberations. Some of the most effective tools to achieve this goal are analogies, metaphors, memorable phrases and short stories. These devices can, if properly used, not only take the presentation from mundane to magnificent, but can work to help the jury reach the right verdict for the right reason.

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  • Severe bedsores suffered in Staten Island hospital lead to a debilitating hip infection and $5.4M medical malpractice award (Staten Island Live)
  • New York Juror in medical malpractice lawsuit charged with soliciting bribes (The Clinical Advisor)
  • Injured baby’s parents sue Des Moines hospital (Des Moines Register)
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In KARCZ v. KLEWIN BUILDING COMPANY, INC.,et. al., 4th Department, June 10, 2011, The Court affirmed summary judgment for the plaintiff on his 240(1) claim. The plaintiff had lifted a truss overhead onto the aerial platform of a scissor lift. The truss fell on him causing him to suffer injury. In affirming The Court held;

“The truss fell and struck plaintiff because of the absence or inadequacy of a safety device of the kind enumerated in Labor Law § 240 (1) (see Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071-1072; Ullman v Musall, 306 AD2d 813). Thus, “the harm [to plaintiff] flow[ed] directly from the application of the force of gravity” (Runner v NewYork Stock Exch., Inc., 13 NY3d 599, 604). We reject defendants’contention that plaintiff’s actions were the sole proximate cause of the accident. Rather, those actions, insofar as plaintiff may have moved toward the falling truss in an attempt to prevent it fromfalling, raise “at most, an issue of comparative negligence,” which is not an available defense under section 240 (1) (Dean v City of Utica,75 AD3d 1130, 1131).”

For those of you in The 4th Department The Court held that under the circumstances of this case the court rejected defendants’ contention that Labor Law vicarious liability provisions did not apply because plaintiff sustained the injury on an Indian reservation, i.e., that of the Seneca Nation.

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$8 Million Settlement In Wrongful Death Case
Drunk Driving Accident

In July, 2007 a drunk driver took the life of a 23 year old woman. That woman was the mother of a 4 year old child. That child’s life was forever changed by the reckless and negligent conduct and actions of the drunk driver. Although the child’s life will never be the same – – the family of that young child sought expert representation from highly skilled lawyers to prosecute a civil claim for the wrongful death of the mother and to protect the interests and rights of her little child.

This past week Ben Rubinowitz and Diana Carnemolla successfully resolved this claim after more than 3 years of litigation for one of the highest awards ever for this type of case – – 8 million dollars. The claim stemmed from the reckless and negligent actions of a drunk driver when he drove drunk and collided head-on with a car driven by a 23 year old woman. The mother was killed in the accident but her young child, who was a belted back seat passenger in her car, survived.

The claim was brought under a number of legal theories which included the Wrongful Death of a mother, her Conscious Pain and Suffering for the few minutes that she lived following the impact, the Zone of Danger Damages suffered by both this mother/driver before she died and the Zone of Danger Damages suffered by the young child in witnessing her mother’s death.

“This was a horrible tragedy of unimaginable proportions” said Ben Rubinowitz who also explained that “while no amount of money can ever compensate a young child for the loss of her mother, we know that the law does provide for compensation in this instance, as it should. Our goal was to maximize the recovery for this young child.” Diana Carnemolla, who worked tirelessly in prosecuting this case with Rubinowitz stated, “This is the largest award ever made for this type of claim. Although we are terribly saddened by the loss of a young child’s mother, we are delighted that we were able to secure this large award to provide for this child’s future.”

Both Rubinowitz and Carnemolla are partners of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, a firm that specializes in all aspects of Personal Injury Claims including Wrongful Death, Drunk Driving accidents, Car, Bus and Train accidents, construction accidents, Premises accidents, Civil Rights violations, Products Liability cases and Medical Malpractice cases.

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The family was awarded a record $58 million for medical malpractice
Daniel D'Attilo

A Connecticut family received a record medical malpractice award in a lawsuit, after a jury determined that Daniel D’Attilo’s medical problems were preventable. Daniel needs constant care and cannot speak, eat or walk due to these injuries. Last week, he and his family were awarded $58 million in a medical malpractice case against the obstetrician who delivered him.

According to lawyers, Daniel’s mother’s amniotic fluid dropped by half before going into labour, but her physician, Dr. Richard Viscarello, waited days to perform a Caesarian section. After a month-long trial the Jury decided that the D’Attilos should be paid $58 million compensation for ‘pain and suffering’ and for the Daniel’s past and continuing medical care.

The attorneys at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have more than 90 years of experience representing patients who have been injured or have died as the result of medical malpractice involving birth injuries.

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Our Partner Stephen Mackauf will Chair the Seminar Hospital Liability presented by The New York State Trial Lawyers Association on June 21 &22, 2011 to be held at 132 Nassau Street, New York, N.Y.

“This program will cover virtually every aspect of medical malpractice cases against hospitals. We begin with a a judge’s overview of recent developments in hospital liability law in New York with a special emphasis on vicarious liability. We will discuss how a plaintiff’s lawyer can use the concept of the “differential diagnosis.” We then cover hospital records and how to obtain the “records behind the records,” together with a discussion of the metadata hidden in computerized hospital records that tell you who really wrote what note, when, and what changes were made to it.” For more information and to register click here.

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In Nascimento v Bridgehampton Constr. Corp., New York Appellate Division, First Department, June 2, 2011, The Court dealt with the oft presented question as to whether a sub-contractor was a statutory agent of the general contractor for purposes of liability pursuant to New York Labor Law Sections 240(1) and 241(6). The facts of the case may be found by clicking on the decision above. What is interesting about this case is that it presents an excellent review of the law regarding this much litigated area which the Court discussed as follows:

“Initially, we reject plaintiff’s broad assertion; the law does not hold that all subcontractors in the “chain of command” are necessarily as liable as the general contractor. Rather, as a subcontractor rather than the general contractor, Bayview may be held liable for plaintiff’s injuries under Labor Law §§ 240(1) and 241(6) only if it had the authority to supervise and control the work giving rise to the obligations imposed by these statutes, which would render it the general contractor’s statutory agent (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Murphy v Herbert Constr. Co., 297 AD2d 503 [2002]; Vieira v Tishman Constr. Corp., 255 AD2d 235 [1998]). To be treated as a statutory agent, the subcontractor must have been “delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury” (Headen v Progressive Painting Corp., 160 AD2d 319, 320 [1990]). If the subcontractor’s area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory (see Sabato v New York Life Ins. Co., 259 AD2d 535 [1999]; Headen, 160 AD2d at 319).

Subcontractors have been held to be the statutory agents of general contractors in situations in which provisions of the subcontracts explicitly granted supervisory authority (see Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]; Nephew v Klewin Bldg. Co., 21 AD3d 1419, 1421 [2005]), and those in which evidence showed that the subcontractors actually exercised supervisory authority (see Everitt v Nozkowski, 285 AD2d 442, 444 [2001]). Additionally, evidence that a subcontractor delegated the requisite supervision and control to another subcontractor has been cited as forming part of the proof that the first subcontractor formerly possessed that authority, and may justify imposing Labor Law liability on the first subcontractor as a statutory agent of the general contractor (see Weber v Baccarat, 70 AD3d at 488; Everitt v Nozkowski, 285 AD2d at 444). “

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1. Read the statute. When you get the case, make sure it fits within the parameters of Labor Law §240(1):

a. Was the injured worker engaged in a §240 activity? Construction, demolition, etc.

b. Was the injured worker working on a building or structure?

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In Brannan v Korn, Second Department, May 24, 2011, an action to recover damages for personal injuries, The Court granted defendants’ motion for summary judgment dismissing the complaint based on the emergency doctrine. The plaintiff, while attempting to walk across Ring Road, in Garden City, New York, was struck by a hit and run driver and, as a result of the impact, was propelled onto a second vehicle operated by the defendant Joseph D. Korn. The Court held that while “… the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues “may in appropriate circumstances be determined as a matter of law” (Vitale v Levine, 44 AD3d 935)…” The Court went on to hold that the defendants were entitiled to judgment as a matter of law.

“The evidence submitted by the respondents in support of their motion for summary judgment established that Korn was faced with an emergency situation, not of his own making, leaving him with seconds to react and virtually no opportunity to avoid a collision (see Lonergan v Almo, 74 AD3d 902). Under these circumstances, the respondents established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff’s speculative and conclusory assertions failed to raise a triable issue of fact as to whether Korn’s reaction to the emergency was unreasonable, or whether any negligence on his part proximately contributed to bringing about the emergency or the accident.”

One must wonder if plaintiff submitted a detailed affidavit of an accident reconstruction expert. In any auto accident case in which the emergency defense is applicable the plaintiff’s attorney must retain an experienced accident reconstruction expert, not a “generic” expert who will do a detailed site scene analysis, review all testimony, police reports, etc. and be able to state, not speculate, that to a reasonable degree of professional certainty, the defendant driver had time to react and avoid the accident. The affidavit must explain in minute detail the foundation for the expert’s opinion that the defendant had sufficient time to avoid the accident.

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In MALONEY v.J.W. PFEIL & COMPANY, INC.,et al., Appellate Division, 3rd Department, decided May 19, 2011, plaintiff, while standing on the top cap of a six-foot ladder installing sheetrock on an overhead soffit, fell and sustained injury. Plaintiff moved for partial summary judgment on his Labor Law § 240 (1) cause of action and defendants cross-moved for summary judgment dismissing the complaint. Given the facts as set forth by the Court it is difficult to understand why plaintiff brought the motion. According to The Court plaintiff testified as follows;

“In his deposition testimony, plaintiff admitted knowing that there were other safety devices in other locations in the building better suited for the type of work he was about to perform and that he had routinely used these devices while working on this project. He acknowledged that a baker’s scaffold was in his immediate work area and, at the time of his fall, was being used by n associate working with him. Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it of his fall, was being used by an associate working with him.

Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it contained a written warning never to stand on the top cap of the ladder when using it. Given this proof, we find that defendants made a prima facie showing that Labor Law § 240 (1) was not violated (see id. at 917; see also Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071 [2009]), shifting the burden to plaintiff to raise a triable issue of fact as to this claim.