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 Stephen Mackauf will Chair the Seminar Hospital Liability presented by The New York State Trial Lawyers Association on June 21 &22, 2011 to be held at 132 Nassau Street, New York, N.Y.

“This program will cover virtually every aspect of medical malpractice cases against hospitals. We begin with a a judge’s overview of recent developments in hospital liability law in New York with a special emphasis on vicarious liability. We will discuss how a plaintiff’s lawyer can use the concept of the “differential diagnosis.” We then cover hospital records and how to obtain the “records behind the records,” together with a discussion of the metadata hidden in computerized hospital records that tell you who really wrote what note, when, and what changes were made to it.” For more information and to register click here.

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In Nascimento v Bridgehampton Constr. Corp., New York Appellate Division, First Department, June 2, 2011, The Court dealt with the oft presented question as to whether a sub-contractor was a statutory agent of the general contractor for purposes of liability pursuant to New York Labor Law Sections 240(1) and 241(6). The facts of the case may be found by clicking on the decision above. What is interesting about this case is that it presents an excellent review of the law regarding this much litigated area which the Court discussed as follows:

“Initially, we reject plaintiff’s broad assertion; the law does not hold that all subcontractors in the “chain of command” are necessarily as liable as the general contractor. Rather, as a subcontractor rather than the general contractor, Bayview may be held liable for plaintiff’s injuries under Labor Law §§ 240(1) and 241(6) only if it had the authority to supervise and control the work giving rise to the obligations imposed by these statutes, which would render it the general contractor’s statutory agent (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Murphy v Herbert Constr. Co., 297 AD2d 503 [2002]; Vieira v Tishman Constr. Corp., 255 AD2d 235 [1998]). To be treated as a statutory agent, the subcontractor must have been “delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury” (Headen v Progressive Painting Corp., 160 AD2d 319, 320 [1990]). If the subcontractor’s area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory (see Sabato v New York Life Ins. Co., 259 AD2d 535 [1999]; Headen, 160 AD2d at 319).

Subcontractors have been held to be the statutory agents of general contractors in situations in which provisions of the subcontracts explicitly granted supervisory authority (see Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]; Nephew v Klewin Bldg. Co., 21 AD3d 1419, 1421 [2005]), and those in which evidence showed that the subcontractors actually exercised supervisory authority (see Everitt v Nozkowski, 285 AD2d 442, 444 [2001]). Additionally, evidence that a subcontractor delegated the requisite supervision and control to another subcontractor has been cited as forming part of the proof that the first subcontractor formerly possessed that authority, and may justify imposing Labor Law liability on the first subcontractor as a statutory agent of the general contractor (see Weber v Baccarat, 70 AD3d at 488; Everitt v Nozkowski, 285 AD2d at 444). “

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1. Read the statute. When you get the case, make sure it fits within the parameters of Labor Law §240(1):

a. Was the injured worker engaged in a §240 activity? Construction, demolition, etc.

b. Was the injured worker working on a building or structure?

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In Brannan v Korn, Second Department, May 24, 2011, an action to recover damages for personal injuries, The Court granted defendants’ motion for summary judgment dismissing the complaint based on the emergency doctrine. The plaintiff, while attempting to walk across Ring Road, in Garden City, New York, was struck by a hit and run driver and, as a result of the impact, was propelled onto a second vehicle operated by the defendant Joseph D. Korn. The Court held that while “… the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues “may in appropriate circumstances be determined as a matter of law” (Vitale v Levine, 44 AD3d 935)…” The Court went on to hold that the defendants were entitiled to judgment as a matter of law.

“The evidence submitted by the respondents in support of their motion for summary judgment established that Korn was faced with an emergency situation, not of his own making, leaving him with seconds to react and virtually no opportunity to avoid a collision (see Lonergan v Almo, 74 AD3d 902). Under these circumstances, the respondents established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff’s speculative and conclusory assertions failed to raise a triable issue of fact as to whether Korn’s reaction to the emergency was unreasonable, or whether any negligence on his part proximately contributed to bringing about the emergency or the accident.”

One must wonder if plaintiff submitted a detailed affidavit of an accident reconstruction expert. In any auto accident case in which the emergency defense is applicable the plaintiff’s attorney must retain an experienced accident reconstruction expert, not a “generic” expert who will do a detailed site scene analysis, review all testimony, police reports, etc. and be able to state, not speculate, that to a reasonable degree of professional certainty, the defendant driver had time to react and avoid the accident. The affidavit must explain in minute detail the foundation for the expert’s opinion that the defendant had sufficient time to avoid the accident.

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In MALONEY v.J.W. PFEIL & COMPANY, INC.,et al., Appellate Division, 3rd Department, decided May 19, 2011, plaintiff, while standing on the top cap of a six-foot ladder installing sheetrock on an overhead soffit, fell and sustained injury. Plaintiff moved for partial summary judgment on his Labor Law § 240 (1) cause of action and defendants cross-moved for summary judgment dismissing the complaint. Given the facts as set forth by the Court it is difficult to understand why plaintiff brought the motion. According to The Court plaintiff testified as follows;

“In his deposition testimony, plaintiff admitted knowing that there were other safety devices in other locations in the building better suited for the type of work he was about to perform and that he had routinely used these devices while working on this project. He acknowledged that a baker’s scaffold was in his immediate work area and, at the time of his fall, was being used by n associate working with him. Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it of his fall, was being used by an associate working with him.

Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it contained a written warning never to stand on the top cap of the ladder when using it. Given this proof, we find that defendants made a prima facie showing that Labor Law § 240 (1) was not violated (see id. at 917; see also Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071 [2009]), shifting the burden to plaintiff to raise a triable issue of fact as to this claim.

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For the sixth straight year the number of Medical Malpractice cases brought in Pennsylvania dropped. In 2010 163 Medical Malpractice cases were decided by a jury. 133 resulted in defense verdicts. This is a direct result of changes in the law, the goal of which, are to deprive victims of medical negligence from obtaining legal representation. In 2002 the State implemented changes in the law which required that attorneys representing patients be required to retain an expert in the same specialty as each defendant physician in order to bring a lawsuit. The sole purpose of this law was to drive up the costs involved in bringing a case on behalf of a patient. A further change in the law required medical malpractice cases to be brought only in the county in which the malpractice occurred even if the doctors and patient live in different counties.

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Ben Rubinowitz has been asked to be one of the featured speakers at the New York State Bar Association’s Continuing Legal Education Program “How To Commence A Civil Lawsuit.” Mr. Rubinowitz will be speaking about Depositions. His lecture will focus on appreciating and understanding the New Rules of Depositions; How to effectively prepare a client for a deposition; and How to take an adversarial and Non-Party deposition.

For more than 25 years Ben Rubinowitz has been recognized as an expert in his field in representing severely injured people as a result of car and motor vehicle accidents, premises accidents, civil rights violations, construction accidents and medical malpractice cases. In addition to his work at his firm, Gair Gair Conason Steigman Steigman Mackauf Bloom & Rubinowitz, Ben is a featured writer on Trial Practice in the New York Law Journal. To date, Ben has obtained 19 Verdicts and 83 settlements in excess of one million dollars for his injured clients.

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In Anastasi v. Terio, decided by The New York Appellate Division, Second Department on May 17, 2011, reversed the granting of Summary Judgment for defendants in this action for wrongful death.

The case involved a car accident that took place at an intersection in Queens, New York City. The traffic proceeding in the same direction as the plaintiff’s vehicle was controlled by a stop sign, while the traffic proceeding in the same direction as the defendants’ vehicle was not controlled by any traffic device. The plaintiff’s decedent was sitting in the back seat of the automobile operated by the plaintiff. In reversing The Court held;

“Contrary to the Supreme Court’s determination, the defendants failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427, 427). Although a stop sign governed the intersection for traffic proceeding in the direction that the plaintiff’s vehicle traveled, triable issues of fact exist as to whether the defendant driver was free from negligence and, if not, whether that negligence was a proximate cause of the accident (see Myles v Blain, 81 AD3d 798; Kim v Acosta, 72 AD3d 648; Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Cox v Nunez, 23 AD3d 427). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.”

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In Blackstock v.Board of Education of the City of New York, decided on May 12, 2011 by The Appellate Division, First Department, a special education speech therapist employed by the defendant Board of Education, claimed that she suffered personal injury as the result of an assault by a student. She alleged defendant failed to properly supervise its students. The Court granted defendant summary judgment holding plaintiff failed to show that defendant owed her a special duty of protection. The Court held as follows;

“Under these circumstances, in order to impose liability, plaintiff had to show that defendant owed her a special duty of protection (see Bonner v City of New York, 73 NY2d 930, 932 [1989]; see also Vitale v City of New York, 60 NY2d 861, 863 [1983]). Plaintiff’s failure to allege or provide the factual predicate for the special relationship theory in her notice of claim or complaint is fatal to maintenance of this action (see Rollins v New York City Bd. of Educ., 68 AD3d 540, 541 [2009]). Moreover, the record shows that plaintiff could not prove all of the necessary elements of that theory (see Cuffy v City of New York, 69 NY2d 255 [1987]). Accordingly, there are no material issues of fact, and summary judgment was properly granted.”

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In Churchill v Malek, 2011 NY Slip Op 03673, decided May 3, 2011, The New York Appellate Division, First Department held that a plaintiff in a personal injury action cannot be compelled to disclose confidential psychological or psychiatric records. The Court stated as follows;

“Given that, in this personal injury action, there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 [1995]), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 [1988]), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 [1997]). Defendant’s unsubstantiated claim that plaintiff’s mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994]).”