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 Posted in Construction Accident

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In this video, New York Construction Accident Lawyer Howard Hershenhorn explains how to prepare for the opening statement. He also delivers an example of opening statements for both the plaintiff and defendant based on an accident which occurred at a building renovation project.

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.

http://www.youtube.com/watch?v=uO1K6UJgowg

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In this video, New York injury lawyer Ben Rubinowitz demonstrates direct examination by plaintiff’s attorney of an adverse witness. In this example Chris Sallay plays the witness, Robert Hoover, a site foreman with experience in the construction industry.

For the fact pattern upon which this is based click on extended entry.
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In this one hour and a half Lawline.com Webnar Anthony Gair discusses the current state of New York Construction accident law under Section 240(1) of The New York State Labor Law.
Among the topics discussed are a brief history of Section 240, the most important cases over the last several years, the sole proximate cause defense and the current state of falling worker/falling object cases among other topics.

To view this course for free or for CLE credit click here for Lawline.

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By Anthony H. Gair;

In Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551 (Ct. Apps. 2011) The New York Court of Appeals rejected The Same Level Rule first enunciated by The Court in Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 [1995]. The Rule precluded recovery under Labor Law §240(1) where a worker sustained an injury caused by a falling object whose base stood at the same level as the worker.

In order to understand the holding in Wilinski, one must consider what was transpiring at The Court at the time of the decision. There was an obvious philosophical difference with regard to the reach of 240(1). Judge Piggot led a faction consisting of him and Judges Graffeo and Read who interpreted 240(1) more restrictively and a faction led by Judge Lippman together with Judges Ciparick and Jones who interpreted 240(1) more liberally with Judge Smith as the swing vote. With the untimely death of Judge Jones and the retirement of Judge Ciparck at the end of the year it will be an interesting 2013 regarding The Court’s holdings in 240(1) cases. The majority opinion was written by Judge Ciparick who also wrote the opinion in Misseritti. She was joined by Judges Lippman, Jones and Smith.

In Wilinski The plaintiff and co-workers were demolishing brick walls at a warehouse. Previous demolition of the ceiling and floor above had left two vertical plumbing pipes unsecured. The pipes rose from the floor on which plaintiff was working approximately ten feet. Debris from a nearby wall that was being demolished hit the pipes causing them to fall over both of which struck the plaintiff who was 5’6″ tall. The Court stated the pipes thus fell approximately four feet. In rejecting the same level rule Judge Ciparick writing for the majority stated:

“Some New York courts have interpreted our decision in Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 [1995] to preclude recovery under Labor Law §240(1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240(1). However, in this case, an issue of fact exists as to whether the worker’s injury resulted from the lack of a statutorily prescribed protective device.”

In explaining why, in its opinion lower courts had been misinterpreting Misseritti, Judge Ciparick stated:

“In Narducci v. Manhasset Bay Assocs., (96 NY2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 [2001]), though we noted that section 240(1) applies to both ‘falling worker’ and ‘falling object’ cases, we declined to impose liability where a plaintiff was cut by a piece of glass that fell from a nearby window pane (id. at 267). We concluded that ‘[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected’ and that the absence of such a device ‘did not cause the falling glass here’ (id. at 268-269). Therefore, the accident was outside the scope of section 240(1) (see id.).

In Misseritti, we applied a similar rationale. The plaintiff’s decedent in that case sustained severe injuries, leading to his eventual death, when a completed concrete firewall collapsed on top of him (see 86 NY2d at 489). Before the wall collapsed, ‘decedent and his co-worker had just dismantled the scaffolding used to erect the completed firewall and . . .[m]asons had not yet vertically braced the wall with the . . . planks it had on the work site’ (id. at 491). We held that section 240(1) did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute (see id.). We determined that, in fact, the kind of braces referred to in section 240(1) are ‘those used to support elevated work sites not braces designed to shore up or lend support to a ‘completed structure’ (id.). Thus the firewall’s collapse, though tragic in consequences, was simply ‘the type of peril a construction worker usually encounters on the job site.’ (id.).
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one57-crane-thumb

This is a picture of the boom collapse at One57, New York City on October 29, 2012. Given the fact that it was well known that Hurricane Sandy was approaching New York City one has to wonder why this crane boom was allowed to remain partially boomed out. Why didn’t the Crane Contractor lower the boom and properly rig it to avoid this quite foreseeable occurrence.

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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 –

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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.

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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.”

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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.