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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.

Articles Tagged with New York

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A recent study on safety in hospitals conducted by Consumer Reports shows that hospitals are not a safe place to be.

For this study Consumer Reports magazine ranked more than 2000 hospitals based on the following criteria:

-Infections aquired in hospitals
-likelyhood to be re-admitted in 30 days
-communication issues around drugs and discharge
-likelyhood to get too many CT scans
-likelyhood of complications

Dr John Santa, director of Consumer Reports’ Health Ratings Center, was recently on “CBS This Morning” (see video below) to express his concerns.

In the New York area, out of 70 hospitals studied, 58 hospitals rank below the national average when it comes to safety.

Among these hospitals 27 out of the 28 teaching hospitals are scoring below average with some of them among the worst of the nation. The only teaching hospital in the New York region that scores above average is the the Winthrop Hospital in Mineola, NY with a safety score of 58 out of 100.

Teaching hospitals are supposed to lead by example as they are training the future doctors of our nation. It is an alarming fact that most teaching hospitals in the New York area are actually the most unsafe in the country.

In the New York area, the worst teaching hospitals when it comes to safety are the Kings County Hospital Center in Brooklyn, N.Y. with 22 points, the Bronx-Lebanon Hospital Center Health Care System in the Bronx, N.Y. with 25 points, the Westchester Medical Center in Valhalla, N.Y. with 28 points, Harlem Hospital Center in New York City with 28 points and the Jacobi Medical Center in the Bronx, N.Y. with 29 points.
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By Anthony Gair;

(A) THE RECALCITRANT WORKER DEFENSE
(1) A BRIEF HISTORY

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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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 http://www.nysba.org/AM/Template.cfm?…