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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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).”

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In a New York medical malpractice case our partner Rhonda Kay obtained a reversal of the lower court’s granting of a motion to change venue. In SIMON v. USHER, 2010 NY Slip Op 03777, The Appellate Division of the Supreme Court of New York, First Department held;

“Although the moving defendants made a timely demand for a change of venue, their motion for such relief was untimely. A defendant “may move to change the place of trial within fifteen days after service of the demand,” unless the plaintiff consents to the change of venue within five days of service of the demand (CPLR 511[b]). Here, the motion for a change of venue, made 20 days after service of the demand, must be rejected as untimely (see Singh v Becher, 249 AD2d 154 [1998]). Contrary to moving defendants’ claim, they were not entitled to the five-day extension in CPLR 2103(b)(2) for time periods measured from service by mail (see Thompson v Cuadrado, 277 AD2d 151 [2000]). Furthermore, the failure of the remaining defendants to serve a demand to change venue with or prior to their answer was fatal to their request to change venue (see Kurfis v Shore Towers Condominium, 48 AD3d 300 [2008]; CPLR 511[a]).”

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For those who have practiced in the area of New York Construction Accidents both plaintiff and defense attorneys can agree on one point: the law interpreting New York Labor Law, Section 240(1) is constantly changing. The pendulum swings back and forth. For a brief discussion of the ever changing law click here. With regard to falling objects, prior to 2001 if an object at a New York Construction Site fell striking a worker the plaintiff won. Then in May of 2001 that changed with the decision by The Court of Appeals in Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 750 N.E.2d 1085, 727 N.Y.S.2d 37 [2001]) in which The Court held;

“With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to “a significant risk inherent in … the relative elevation … at which materials or loads must be positioned or secured” ( Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 514). Thus, for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute…”

What followed was a rash of dismissed “falling object” cases. Then in 2005 The Court in Outar v City of New York, 5 NY3d 731, 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 affirmed summary judgment for the plaintiff who had been injured when struck by a falling Dolly holding “The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240 (1)’s protection, and the dolly was an object that required securing for the purposes of the undertaking…”

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From The New York Daily News;

The owner of the city’s largest construction crane company ( New York Crane and Equipment Company) is expected to be indicted for manslaughter in the death of two workers killed in an upper East Side disaster nearly two years ago.

For more information on New York Crane Accidents contact our New York Construction Accident Lawyers.

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Ben Rubinowitz and Evan Torgan co-authored “Exposing Biased Testimony On Cross” which appeared in The New York Law Journal on February 23, 2010. The article discusses the basic elements necessary to properly attack the biased witness. The factors discussed include, Cross on Friendship, Cross On The Absence Of A Subpoena, Cross on Transportation and Cross On Refusing To Speak To The Opposing Party. After each factor a sample cross examination is presented. Rhonda E. Kay assisted in the preparation of the article.

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This program sponsored by The Association of The Bar of the City Of New York will be held on Wednesday, January 20, 2010 8:00 am – 9:15 am at The New York City Bar, 42 West 44th Street, Stimson Room.

The program will focus on various aspects of litigating medical malpractice cases, with attention to pitfalls of practice and other insights, all as viewed from the perspective of an experienced trial judge and two seasoned practitioners. The distinguished panel will consist of The Honorable Douglas E. McKeon, J.S.C. and two members of the medical malpractice bar, Ben B. Rubinowitz, Esq., Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, and Glenn W. Dopf, Esq., Kopff, Nardelli & Dopf, LLP. Justice McKeon will serve as speaker and moderator.
To register click here.