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 Schick v. 200 Blydenburgh, LLC, et al., 2d Department decided October 4, 2011, the plaintiff sustained injury when he fell from a ladder on which he was standing. The Court set forth the facts as follows;

“On March 9, 2007, the date of the subject accident, Pal Supply had not yet moved into the premises. That morning, the injured plaintiff (hereinafter the plaintiff), a field technician for Verizon, was assigned to provide telephone service for Pal Supply at the warehouse. According to the plaintiff’s deposition testimony, upon arrival at the warehouse, he discovered that the installation of three telephone lines would involve connecting the terminal located at the telephone pole on the road to an existing underground wire leading to a serving terminal located inside the rear of the warehouse. The plaintiff testified that he thought he would then install the Network Interface Device (hereinafter the NID), which would house the three telephone lines, a few feet from this serving terminal. However, according to the plaintiff, a Pal Supply employee told him to run a wire from the serving terminal along the ceiling to an area above the office doorway, and to install the NID over the doorway.

The plaintiff further testified at his deposition that he installed the cross connection wire from the telephone pole terminal to the underground wire, tested the dial tone at the serving terminal, and attached the wire from the serving terminal along the wall leading from the serving terminal up to the ceiling. The plaintiff attached the wire to existing structural trusses using plastic zip ties, slicing off the tails of the ties with a diagonal cutter. As the plaintiff was attaching the wire to the trusses that were near the ceiling, which were approximately 20 feet high, he felt the ladder on which he was standing shift up and down, the bottom of the ladder slid out, and the plaintiff fell to the floor. The plaintiff alleged that the ladder slipped or shifted due to sand, dirt, or dust on the floor.”

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In Delaney v. Town Sports International, doing business as New York Sports Club, et al., 2d Department decided on October 4, 2011, the Court was with faced with the age old question of trivial or de minimis defects.

The plaintiff suffered injury as a result of falling over a moveable wooden platform which had been placed on the tile floor of a sauna located within the defendants’ premises. The platform was 1½ inches off the floor with a ½ inch lip or overhang, and was located approximately 9½ inches from the sauna entrance door. The defendants moved for summary judgment contending, among other things that any alleged defect was trivial in nature. In denying defendants’ motion for summary judgment The Court held;

“”Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case and is generally a question of fact for the jury” (Perez v 655 Montauk, LLC, 81 AD3d 619, 619; see Trincere v County of Suffolk, 90 NY2d 976, 977; Vani v County of Nassau, 77 AD3d 819). Although some defects are trivial and, therefore, not actionable as a matter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Vani v County of Nassau, 77 AD3d at 819), “[i]n determining whether a defect is trivial as a matter of law, a court [*2]must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury” (Perez v 655 Montauk, LLC, 81 AD3d at 619-620; see Trincere v County of Suffolk, 90 NY2d at 977-978; Sabino v 745 64th Realty Assoc., LLC, 77 AD3d 722).

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Please note that for those of you handling New York City Elevator Accidents the old system of Local Law 10/81 inspections and two year tests ended on January 1, 2009. The new rule published on April 14, 2010 requires the following inspections and test cycle:

“(5) Inspection and test cycle.

(i) Category 1. Except as otherwise provided by the commissioner, January first through December thirty-first of each year.

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The New York Appellate Division, Second Department, has, once again, ruled that the scope of a Frye hearing regarding a plaintiff’s theory of causation in a medical malpractice action is limited only to whether or not the expert’s opinion is based on generally accepted scientific principles, as opposed to the expert’s own unsupported beliefs. Specifically, plaintiff is not required to produce medical literature that demonstrates causation under parallel circumstances, but rather, an expert’s testimony must be allowed where a synthesis of various studies or cases permits the expert to reach such a conclusion.

In Lugo v. New York City Health & Hospitals Corp.,decided on September 13, 2011, the infant plaintiff indisputably suffered spastic diplegia type cerebral palsy, resulting in developmental delays and confirmed by abnormal findings on an MRI of his brain. He had been born with excellent Apgar scores, but experienced tremors when he was 40 minutes old. He was ultimately diagnosed in the NICU with a blood glucose level of 3 mg/dl (40 mg/dl being normal). After being given an infusion of glucose, his glucose level rose to a normal amount approximately one hour and twenty minutes after his birth.

The theory of plaintiff’s case was that the hospital’s failure to timely diagnose and treat the infant’s hypoglycemia caused his brain injury. The hospital’s attorneys successfully moved the Motion Court for a Frye hearing, supported by affidavits from its experts stating their opinion that a transient episode could not cause the type of brain injury seen on the infant’s MRIs. Following the hearing, the Motion Court precluded plaintiff’s experts from testifying with regard to their theory of causation, and dismissed the case, finding that plaintiff failed to provide “authoritative” medical literature that supported the theory that a “short episode” of hypoglycemia could have caused the infant’s brain injury.

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In a rather unusual case, the New York Appellate Division, Second Department held that there are limits to how far a defendant can go in examining a medical malpractice plaintiff during an Independent Medical Examination in New York. In the case D’Adamo v Saint Dominic’s Home decided on September 13, 2011, the Second Department was confronted with a defendant whose examining doctor wanted to perform a host of invasive examinations upon a non-communicative plaintiff who suffered from both mental and physical disabilities. The 19-year old plaintiff was a resident of the defendant’s group home as he suffered from mental retardation, cerebral palsy and autism. Through his guardian, the plaintiff alleged that the defendant’s malpractice caused him to sustain severe damage to his colon resulting in loss of a length of his colon and a permanent colostomy bag.

It is well-settled law in New York that a defendant is entitled to a medical examination of a plaintiff who places his physical condition in issue. It is also well-settled that the medical examination cannot be invasive in nature. In this case, the examining doctor chosen by the defendant initially sought to perform a rectal exam on the plaintiff with a rigid sigmoidoscope. Counsel for the plaintiff rightfully objected on the basis that the examination sought was clearly invasive and posed risks beyond that of a simple medical examination given the physical and mental condition of the plaintiff. The defendant and the examining doctor suggested alternative examinations involving a digital rectal examination, a pediatric sigmoidoscope and possible sedation. The plaintiff’s counsel again objected on the same basis. The Appellate Division, Second Department agreed that these examinations were too invasive and denied the defendant’s request.

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The following basic items should be included in plaintiff’s initial Notice For Discovery and Inspection in an Elevator Accident Case occurring in The City of New York and adapted in other areas of the State. See below.

1. A copy of the contract with (Defendant Elevator Co.) pursuant to which they provided maintenance for the elevators at (Defendant Building Owners).

2. All work records for the subject elevator for a period of five (5) years prior to the accident alleged in the complaint herein.

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In Cordeiro v. TS Midtown Holdings, LLC, et al., The New York Appellate Division, First Department on September 15, 2011, granted plaintiffs’ motion for partial summary judgment as to liability on their Labor Law § 240(1) claim.

The plaintiff sustained injury while preparing to remove elevator equipment from a building owned and managed by defendants by hoisting it through hatchway doors connecting a motor room with the floor below it. As plaintiff was sliding open the latch to the doors, they unexpectedly opened, causing him to fall to the floor below. Despite the fact that the doors were a permanent fixture of the building The Court in granting the motion and reversing the lower Court held;

“Plaintiffs met their prima facie burden of establishing entitlement to partial summary judgment on their Labor Law § 240(1) claim. Although the doors through which plaintiff fell were a permanent fixture of the building, they were not a “normal appurtenance,” but rather, an access opening specifically built for the purpose of allowing workers to perform their work on the building elevators by hoisting materials to the building’s motor rooms (Brennan v RCP Assoc., 257 AD2d 389, 391 [1999], lv dismissed 93 NY2d 889 [1999]). Accordingly, we find that the hatch in this case was a “device” within the meaning of § 240(1) (see id.; Crimi v Neves Assoc., 306 AD2d 152, 153 [2003]). Further, plaintiff did not step onto hatchway doors that opened accidentally (compare Bonura v KWK Assoc., 2 AD3d 207 [2003], and Rodgers v 72nd St. Assoc., 269 AD2d 258 [2000]). Rather, plaintiff was required to open the doors in order to hoist up the governor from the 19th floor hallway below. This exposed plaintiff to a gravity-related risk of falling into the hallway from the motor room (see Godoy v Baisley Lbr. Corp., 40 AD3d 920 [2007]).”

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In The Courts

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  • New York Hospital sues creator of website that discusses the 2003 death of his wife (Albany Times-Union, NY)
  • The family of a Georgia man who stabbed his mother to death in a psychotic rage will be permitted to file a medical malpractice lawsuit against his psychiatrist. (CBS News, GA)