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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In Tirado V. Elrac Inc., U-Haul Co., Inc. decided August 5, 2008, The First Department reversed the order of the Supreme Court granting U-Haul’s motion for summary judgment and granted plaintiffs cross motion to amend his Complaint and held the amendment related back to the original date of filing of the initial complaint thus avoiding application of The Graves Amendment. The facts were as follows;

” Plaintiff alleges that on November 9, 2004, while a passenger in a car driven by defendant Litzey and owned by defendant Elrac, he sustained injuries when their vehicle was struck by a truck owned by U-Haul Co., Inc. (UHI) and operated by defendant McFarlan. The truck in question bore Arizona registration number AB24019 and was apparently owned by U-Haul Co. of Arizona (UHAZ). ”

“On July 29, 2005, plaintiff filed a verified complaint, naming Elrac, Litzey and McFarlan as defendants. Believing that the rental truck was owned by UHI, plaintiff sued that entity, claiming vicarious liability for the negligent use or operation of the vehicle. UHI was served on August 26, 2005, by service on the New York Secretary of State, and an additional copy was mailed to UHI at 2727 N. Central Ave., Phoenix, Arizona. On October 7, 2005, U-Haul Co. of New York (UHNY) filed an answer in lieu of UHI, presuming it was the intended defendant.”

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Our Partner Robert Conason will be conducting The Direct Examination of Plaintiff’s Automotive Expert at The New York City Chapter of ABOTA Masters in Trial Program on Friday, October 24th. The Program will be held at the New York County Lawyers Association.

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Robert Conason will be speaking at The New York State Trial Lawyers Institute’s renowned Decisions Program on Trial Practice. Our Partner Rhonda Kay prepared the written materials on this subject for the course book which reports on over 100 cases that have come down within the last year in the area of Trial Practice. The New york City program will be held on Friday & Saturday, September 12 & 13, 2008: 9am to 5pm at The BMCC Tribeca Performing Arts Center @ BMCC199 Chambers Street New York City, New York 10007. For more information click here.

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Robert Conason will be participating in The Brooklyn Law School symposium, “The Products Liability Restatement: Was it a Success?,” scheduled for November 13th and 14th, 2008. Bob will be on the panel discussing The Restatement and Design Defect §2(b) on November 13th.

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Our partner Robert Conason will be speaking at the International Institute for Continuing Medical Education, Inc.’s Mount Sinai Update 2008: Breast Imaging. Bob will be speaking as to the plaintiff’s viewpoint on Breast Imaging Malpractice: An Attorney’s Perspective. The program is scheduled for October 13 – 15, 2008. The program will be held at The Marriott Hotel in New York City. Bob will be speaking at 10:30 A.M. on October 15th on Breast Imaging Malpractice and at 11:30 A.M. on Medicolegal Issues. For more information on this program click here.
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From The New York Law Journal, Thursday, July 31, 2008;

Our partner, Ben Rubinowitz, and Evan Torgan, a member of Torgan & Cooper,” write that too often, trial lawyers use demonstrative exhibits only in the one part of the trial during which the exhibit is offered – usually direct examination. Although a strong point can be made during direct, with a good amount of planning and a little bit of creativity, that exhibit can serve to bolster your point throughout the entire trial and, more importantly, serve as your surrogate during the one part of the trial when you are not present – jury deliberations.”

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Our partners Jeffrey Bloom and Richard Steigman have co-authored an article entitled “The Impact of Arons: A Look at the Court of Appeals’ Decision to Allow Ex Parte Interviews of Treating Doctors and Where We Go from Here.” The Article is in The Spring 2008 Edition of Bill Of Particulars published by The New York State Trial Lawyers Institute.

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Our Partner, Ben Rubinowitz, will be a Team Leader at NITA’S Trial Advocacy Program to be held at Hofstra University School of Law from August 8th to 13th. Ben has served as a Team Leader for more than 25 years. This program is an intensive Trial skills program in which NITA’S “learning by doing” method is employed. For more information click here.

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In Koenig v. Lee, Decided on July 15, 2008, The 2d. Department dismissed plaintiff’s complaint for personal injuries suffered in an Automobile Accident based on the Emergency Doctrine. The facts set forth by The Court were as follows;

“Here, the evidence submitted by the appellants in support of their motion for summary judgment established that the plaintiff’s vehicle, which had been traveling southbound, was virtually stopped in the left turn lane of the roadway. According to his deposition testimony, as the defendant Song B. Lee drove in the left lane of northbound traffic, he was forced to swerve across the center line. In so doing, his car collided with the plaintiff’s, forcing the plaintiff’s vehicle to move backward and into the left travel lane of the southbound traffic. The appellants’ vehicle, traveling in that lane, then collided with the rear of the plaintiff’s vehicle. According to the plaintiff’s deposition testimony, the second collision occurred one or two seconds after the first. According to the deposition testimony of the appellant Joel H. Cohen, he had no awareness that an accident was taking place until the moment his vehicle collided with the plaintiff’s.”

In dismissing plaintiff’s complaint The Court Held;

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In product 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 machine properly or to follow warnings which caused the plaintiff’s injury. 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 are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer is crucial. 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 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 machine. 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. Machine 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.