Articles Posted in Construction Accident

Howard S. Hershenhorn and Christopher L. Sallay will serve as Overall Planning Chairs of the New York State Bar Association’s Construction Site Accidents: The Law & the Trial 2012 Seminar. Anthony H. Gair and Ben B. Rubinowitz will also be speaking at the event. Ben B. Rubinowitz is also the chair of the Long Island seminar. The Seminar will be held at the following locations:

Friday, November 30, 2012

– Location –

On July 31, 2012, our partner, Christopher L. Sallay, was granted summary judgment in a New York Construction accident case pursuant to §240(1) of the New York State Labor Law against the general contractor for the construction project.

On October 26, 2008, the plaintiff, a painter, susstained injury when the baker scaffold on which he was working shifted due to unlocked wheels resulting in him losing his balance and fall feet first to the floor, approximately 4-6 feet.

The plaintiff sustained a severe calcaneal fracture to his right foot which required surgery in which he doctors inserted 15 screws and 3 plates into his heel. He now walks with the assistance of a cane most of the time and has not gone back to work since the accident.

From New York Daily News;

“One worker was killed and four others injured when a crane collapsed Tuesday night at the construction site for the MTA No. 7 train extension project,officials said.

The man who died, a 29-year-old, was pulled from the pit that sits 60 feet below street level at W. 34th St. and 11th Ave., the FDNY said. He went into cardiac arrest on the way to Bellevue Hospital where he died.”

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.”

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]).”

In this seminar, Labor Law/Construction Site Accidents in New York, presented by the New York State Bar association on December 9, 2011 Gair discusses section 240(1) cases including Runner v New York Stock Exch., Inc. (13 NY3d 599, [2009]), Salazar v.Novalex Contracting Corp., et al., decided by The Court of Appeals on November 21, 2011, 2011 NY Slip Op 8446 and Wilinski v. 334 East 92nd Housing Development Fund Corp., et al., decided October 25, 2011, 2011 NY Slip Op 7477 among other recent cases and the current trends in the law.