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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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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Ben Rubinowitz will be the Team Leader of Building Trial Skills: National Session, one of the preeminent programs of The National Institute for Trial Advocacy. The program will be held in Louisville, Colorado from July 10-24, 2010 at The NITA Education Center.

During the two weeks you will practice, then perfect, your skills in direct/cross examinations, objections, opening statements/closing arguments, laying foundations, motion arguments, jury selection and dealing with both economic and technical expert witnesses. You can also expect to attend special presentations by noted authors and communications experts.” For more information on the program click here.

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NEW YORK (CBS) ― “The beauty of your balcony could have ugly consequences. The Department of Buildings said the balconies of 16 buildings in New York City are simply too dangerous to step on……”

“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.

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In Wilson-Toby v. Bushkin, a New York Medical Malpractice case, our partner Rhonda Kay, obtained an affirmance of the lower Court’s denial of defendants’ motion for summary judgment dismissing the second cause of action to recover damages based upon lack of informed consent. The plaintiff underwent elective cosmetic breast surgery performed by the defendant doctors. The plaintiff alleged that the defendants performed the surgery improperly, causing disfigurement and significant scarring. The complaint alleged causes of action seeking to recover damages for medical malpractice and lack of informed consent. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied their motion in its entirety. On appeal, the defendants challenged only the denial of that branch of their motion which was for summary judgment dismissing the cause of action sounding in lack of informed consent. The Court held;

“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).”