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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From The New York State Trial Lawyers Association:

“New York’s healthcare industry has long pressed for enactment of so-called “tort reform” so they can be relieved of supposedly “excessive” medical liability payments. In fact, payments to medical malpractice victims have already declined substantially:

• The number of medical malpractice claims filed in New York courts has declined every year since 2007. Fewer claims were filed in 2012 than in any year since 1992, even as New York’s population grew.

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From Reuters: “Missed or wrong diagnoses are common in primary care and may put some patients at risk of serious complications, according to a U.S. study.” The study appeared in JAMA Internal Medicine. David Newman-Toker from Johns Hopkins University School of Medicine who co-wrote a commentary on the study was quoted as follows in the article;

“We have every reason to believe that diagnostic errors are a major, major public health problem,” Newman-Toker told Reuters Health. “You’re really talking about at least 150,000 people per year, deaths or disabilities that are resulting from this problem.”

The article goes on to state that, “Most of the missed diagnoses were traced back to the office visit and the doctor not getting an accurate patient history, doing a full exam or ordering the correct tests.”

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By Anthony Gair;


In order to understand the break from precedent by the Court of Appeals in 2004, it is useful to understand the history of the recalcitrant worker defense. For years the leading recalcitrant worker case was Smith v. Hooker Chemicals and Plastics Corp., 89 A.D.2d 361, 455 N.Y.S.2d 446 (4th dept. 1982); app. dismd. 58 N.Y.2d 824. The rule enunciated therein was that the “….the statutory protection (afforded by §240) does not extend to workers who have adequate and safe equipment available to them but refuse to use it.”

The facts in Smith are important in order to understand how the Court of Appeals in decisions between 2004 and 2009 expanded the reach of the recalcitrant worker defense by relying on cases such as Smith, while ignoring the facts upon which the holdings were based, thereby in effect failing to follow long established precedent.
For example, in Smith the plaintiff went up on a roof despite the fact that safety equipment had been removed and after a co-worker had refused to do so unless the safety equipment was put back in place.

The Court’s holding was thus based on the fact the plaintiff knowingly chose not to use safety devices which he knew had been in place and were readily available. His accident was also contemporaneous in time with his refusal to use the safety devices which his co-worker insisted be in place before the co-worker got on the roof.

The Court of Appeals followed the reasoning of Smith for years, as did numerous Appellate Division cases.

In Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993) the plaintiff was standing on a ladder leaning against a railroad car while using a hand-held sandblaster to clean the exterior of the car. He was injured when he fell from the ladder. In rejecting the defendant’s claim that the plaintiff was a recalcitrant worker, the Court stated:
“Defendants’ claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v. General Foods Corp., supra; see also, Hagins v. State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.”
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In this presentation Anthony Gair, covers the State of the Law of New York Construction Site Accidents – Labor Law Section 240 as of December, 2012.

This video is from “Construction Site Accidents: The Law and the Trial 2012” seminar by the Continuing Legal Education program of the New York State bar Association in December 2012.

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The Partners of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf are pleased to announce that Ben B. Rubinowitz has been named Managing Partner of the firm following the death of Robert L. Conason.

Throughout his 30-year legal career, Ben has made his mark as a leading trial lawyer combining hard work and dedication with his remarkable courtroom skills and presence. Mr. Rubinowitz began his career as a prosecutor, where he honed the trial skills that would become his hallmark. He joined GGCSMB&R in 1989. Ben is a member of the exclusive Inner Circle of Advocates, The International Academy of Trial Lawyers, a Director of the New York State Trial Lawyers Association and a Past President of the American Board of Trial Advocates. He was also named by Best Lawyers as The 2013 Lawyer of the Year, Personal Injury Litigation-Plaintiffs-New York City Area.

Our firm which was named by U.S. News and Best Lawyers as 2013 Law Firm Of The Year, Personal Injury Litigation-Plaintiffs, with 9 of our Partners listed in Best Lawyers in America, will continue, as it has for over 90 years to specialize in the most serious and significant personal injury and general negligence cases, which range from construction and automobile accidents to medical malpractice and complex products liability claims.

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Products Liability in New York, (Strategy and Practice) Second Edition Published by The New York State Bar Asscociation, Author: Neil A. Goldberg, Esq.; John Freedenberg, Esq.; Editors-in-Chief is now available for purchase. Click here to order. Neil is recognized as one of the leading Products Liability defense lawyers in the United States as is his firm Goldberg Segalla,LLP. He is past president of the Defense Research Institute (DRI), the largest organization of civil defense attorneys in the United States.

Anthony Gair is co-author of the chapter entitled “Culpable Conduct/Comparative Fault Issues as Applicable to a Products Liability Case”

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In this video New York Car Accident Attorney Anthony Gair discusses how to take a meaningful deposition in a car accident case. This video is part of a New York State Bar Association program designed for the attorney seeking a fundamental but practical overview of handling an auto accident case. A representative case is reviewed from inception to conclusion from both the plaintiff and defense attorney perspective. The step-by-step practical aspects of the case are presented by experienced attorneys to demonstrate both the practical aspects of each phase of the litigation as well as the overall thought process behind each phase leading to the ultimate resolution.
To order the complete course video and course book for CLE credit go to…

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Our Partner Richard Steigman will chair the annual NYSTLA Seminar CPLR 2013 update. Hon. Ariel E. Belen, Justice, Appellate Division, Second Department (retired) Mediator,JAMS is also on the faculty. The seminar will be held on February 25, 2013 6:00 PM – 9:00 PM at NYSTLA, 132 Nassau Street, 2nd floor, New York, N.Y. This seminar will provide an in depth review of new developments, including practice tips and pitfall warnings that are invaluable for the civil litigator. For more information on this seminar and to register click here.

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In this video, New York Construction Accident Lawyer Howard Hershenhorn explains how to prepare for the opening statement. He also delivers an example of opening statements for both the plaintiff and defendant based on an accident which occurred at a building renovation project.

This video is from “Construction Site Accidents: The Law and the Trial 2012″ seminar by the Continuing Legal Education program of the New York State bar Association in December 2012.

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In this video, New York injury lawyer Ben Rubinowitz demonstrates direct examination by plaintiff’s attorney of an adverse witness. In this example Chris Sallay plays the witness, Robert Hoover, a site foreman with experience in the construction industry.

For the fact pattern upon which this is based click on extended entry.
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