Ben Rubinowitz: Cross Examination of a Construction Site Foreman (Chris Sallay)

For more than 25 years Ben Rubinowitz has volunteered his time teaching younger, less experienced lawyers and law students how to try cases. Based on his expertise, Mr. Rubinowitz was asked to Chair the New York State Bar Association Program on Construction Site Accidents. This is an honor bestowed on very few attorneys in the State. In this video, Ben demonstrates cross examination of a construction site foreman in a New York Construction Accident, portrayed by one of his partners, Chris Sallay.

To read the fact pattern upon which this cross examination was based click below.

The subject accident occurred on April 26, 2009, at 80 59th Street, New York, New York,
a new commercial building owned by Midtown Properties at a construction site for which Abrahams Construction, Inc. was the general contractor. The plaintiff, Ted Striker, was a 46-
year old married, carpenter. At the time of the accident, he was employed by the subcontractor, Zucker Construction, to do framing work.

Two other employees of Zucker Construction were framing a window above a doorway,
and had placed two-by-six wooden planks atop two swinging 12-foot high plywood doors. The planks were to act as a shelf or a makeshift scaffold upon which they could set the window if necessary. The planks were not fastened to the doors, but rather, were held in place by two cinder blocks placed on top of the planking which had already been placed on top of the two makeshift doors.

According to the plaintiff, when he came through the doorway, in the course of delivering some wood at his supervisor’s direction, his shoulder hit one of the doors dislodging a plank which fell approximately 4 feet and struck his head rendering him unconscious.

The deposition of plaintiff’s co-employee, Roger Murdock, a retired NYPD Detective,
was taken. Mr. Murdock was a Zucker Construction employee who had been framing the window. He stated that, while he was working, he had blocked the doors. When plaintiff came to the doors, he asked if he could come in. Mr. Murdock told him to wait until the job was done as they were in the process of finishing up. Plaintiff, however, came through one of the doorways inadvertently bumping his shoulder into one of the doors upon which the planks had been balanced causing a plank to fall. The plaintiff, at deposition, vehemently denied any such conversation and stated there was nothing blocking the doorway at the time of the incident.

Plaintiff commenced this action against the building owner, Midtown Properties, and the general contractor, Abrahams Construction, alleging a violation of Labor Law §240. A summary judgment motion was made by the plaintiff. The Court held that triable issues of fact exist as to whether the planks were adequately secured on top of two doors held in place by cinder blocks before plaintiff walked through and knocked into the doors with his shoulder. The question to be determined by the finder of fact is whether the planks were, in fact, adequately secured before plaintiff walked into one of the supports thus rendering inadequate, by his own actions, an otherwise adequately constructed scaffold. The Court further stated that it was a question of fact as to whether the plaintiff’s actions were the sole proximate cause of this accident.