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 McCallister v 200 Park, L.P., 2012 NY Slip Op 01595, decided 2/28/12 The Appellate Division, Second Department, granted the motion by the plaintiff construction worker for summary judgment on his 240(1) claim despite the fact that the base of a scaffold which fell and struck him was at the same level as the worker.

This case is part of a trend following The Court of Appeals decision in Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 rejecting the same level rule. In McCallister the plaintiff and co-workers were moving four stacked scaffolds which were placed on a Baker scaffold. The total weight of the four stacked scaffolds was about 450 to 550 pounds. As they were moving the Baker scaffold the right front and then the left front wheel broke off. The plaintiff squatted down with the bars of the scaffold on his chest in order to pick up the wheelless end of the scaffold. Rather than moving it to the side as the plaintiff expected, the foreman pushed the scaffold towards him. The scaffold fell forward onto the plaintiff’s chest, allegedly pinning him against the wall and injuring his spine. As demonstrated by this case the Courts have been focusing on the weight of the device and its load, and the force it was able to generate over its descent. In granting the motion the Court stated;

” “Although the base of the scaffold was at the same level as the plaintiff and the scaffold only fell a short distance, given the combined weight of the device and its load, and the force it was able to generate over its descent, this difference was not de minimis (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10; Runner v New York Stock Exch., Inc., 13 NY3d 599, 605; DiPalma v State of New York, 90 AD3d 1659; Pritchard v Tully Constr. Co., Inc., 82 AD3d 730, 730-731; Gutman v City of New York, 78 AD3d 886, 886-887). Thus, the plaintiff suffered harm that ” flow[ed] directly from the application of the force of gravity to the [broken scaffold]'” (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10, quoting Runner v New York Stock Exch., Inc., 13 NY3d at 6.”

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Howard S. Hershenhorn
Howard S. Hershenhorn
Gair Gair Conason
Steigman Mackauf
Bloom & Rubinowitz

Thomson Reuters, in an article entitled, “Crane collapse trial could be uphill battle for prosecutors” quoted Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf partner, Howard S. Hershenhorn, on the difficulties of prosecuting the 2008 crane collapses in Manhattan that killed nine people.  Hershenhorn, who represented the widow of the crane operator who died in the first collapse, was quoted as saying, “In a criminal case, you’re picking one actor, unless you’re charging a conspiracy. It’s very difficult to find one actor. There are so many factors.”

You can read the rest of the article here.

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In The Courts

  • Relatives are suing the nursing home where a 77-year-old dementia resident walked away from last month and later died.
  • International drug maker Teva Pharmaceuticals will pay more than a quarter billion dollars to settle most of the lawsuits arising from Southern Nevada’s hepatitis C outbreak.
  • A woman who had a marble-sized lump that a doctor first said was not malignant, wins $15M in Malpractice Suit.
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In Kempisty v 246 Spring St., LLC, 2012 NY Slip Op 00901, Decided on February 9, 2012, New York Appellate Division, First Department, The Court modified the decision of the lower Court dismissing the plaintiff’s 240(1) claim to the extent of reinstating the § 240(1) claim and granting plaintiff summary judgment.

The plaintiff alleged that he suffered a serious injury to his right foot when a steel block being hoisted by a crane improperly swung in his direction. He had been assigned the job of hooking blocks to the crane and acted as the signal man for the crane operator, Leonardo Marino. At his deposition, plaintiff testified that a second before the accident he was standing about two to three feet above the ground on a stack of blocks. Plaintiff further testified that the block that struck him had been vertically lifted about two feet before the accident occurred. Marino also testified that the block in question was vertically lifted about two to three feet. Plaintiff was standing two to three feet off the ground and the block was lifted off the ground approximately two feet when it began to swing. Hence the plaintiff and the block that struck him were at about the same height.

In granting summary judgment The Court held;

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This presentation is part of the New York State Bar Association Construction Site Accidents seminar 2011. Howard Hershenhorn is a partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf.

Mr. Hershenhorn has extensive experience in high profile personal injury cases in the areas of medical malpractice, automobile accidents, construction accidents, municipal liability and products liability.

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In The Courts

  • A California resident traveling board the Holland America Line’s Rotterdam cruise ship sues the company for negligence.
  • Jury selection is under way in a multimillion-dollar medical malpractice lawsuit against Indian River Medical Center, having to do with an infant born dead to a St. Lucie County couple in 2008 who was resuscitated.
  • A seaman working as the chief engineer aboard a motor tug in navigable waters near Hawaii sues for relief under the Jones Act, alleging that the compression fracture to his thoracic spine.
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In this New York construction accident the motion by plaintiff’s lawyers for summary judgment on his Labor Law 240(1) claim was granted by The Court in Rich v West 31st St. Assoc., LLC, 2012 NY Slip Op 00734, Decided on February 2, 2012, Appellate Division, First Department.

Plaintiff, was injured while riding a hoist at a construction site. The hoist free fell into the sub-basement, coming to rest on the springs on the bottom of the hoist way. In affirming the granting of summary judgment The Court stated;

“The unrefuted evidence establishes that the hoist came to a stop only when it reached the emergency cushion springs located in the sub-basement, an event which does not constitute normal and safe operation of the hoist. The hoist mechanism proved inadequate to shield plaintiff from the harm directly flowing from the application of the force of gravity and thus summary judgment on plaintiff’s section 240(1) claim was properly granted (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]; Williams v 520 Madison Partnership, 38 AD3d 464 [2007]). Although the hoist’s safety mechanism engaged, and prevented plaintiff and his coworkers from suffering more serious injuries, this does not defeat plaintiff’s entitlement to summary judgment (see Lopez v Boston Props. Inc., 41 AD3d 259 [2007]; Kyle v City of New York, 268 AD2d 192 [2000], lv denied 97 NY2d 608 [2002]). Moreover, neither a lack of certainty as to exactly what preceded the accident nor the fact that plaintiff did not point to a specific defect in the hoist [*2]creates an issue of fact (see Arnaud v 140 Edgecomb LLC, 83 AD3d 507 [2011]).”

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Our partner Stephen Mackauf will speak at the New York City Seminar, Medical Malpractice-2012. He will discuss Deposition and Trial Examination of the Defendant. This seminar is sponsored by The New York State Bar Association and is being held State wide. The New York City Seminar is scheduled for March 9, 2012 at New York Hotel Pennsylvania 401 Seventh Avenue (at 33rd St.). For more information and to register click here.

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In Torres v Our Townhouse, LLC, 2012 NY Slip Op 00418 decided on January 24, 2012 The New York Appellate Division, First Department in a one paragraph decision reversed the denial of plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) cause of action and granted the motion. The Court held;

“Plaintiff was injured when he fell to the ground while descending from a 12-foot-high sidewalk bridge without the use of a ladder or scaffold or any other safety device. Defendants contend that he was provided with a ladder and that his own decision to climb down a nearby tree instead of using the ladder was the sole proximate cause of his injuries. However, the record fails to support this contention. Even if defendants’ evidence suggested that there might have been a ladder in the chassis under the truck at the work site, no evidence was presented that plaintiff knew where the ladder was or that he knew he was expected to use it and for no good reason chose not to do so (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 11 [2011]). “

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From RSN;

“In defending the U.S. military’s medical system in court, the U.S. Department of Justice is arguing that service personnel and their families are not allowed to sue for medical malpractice regardless of the circumstance.

As a general rule, military members are barred from taking the government to court, which has been established in several court cases, in particular the 1950 Supreme Court decision in Feres v. United States. But now government lawyers are trying to expand the scope of Feres to make it impossible for families of soldiers to sue for medical malpractice, if at the time of the bad care the service member was on active duty.” MORE.

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