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 Wrongful Death

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By Anthony Gair;

Resolution of whether a plaintiff has a viable action pursuant to 42 U.S.C. §1983 turns on whether the applicable state statute is inconsistent with the Constitution and laws of the United States; Robinson v. Wegman, 436 U.S. 584, 98 S. Ct. 1991 (1978) citing 42 U.S.C. §1988. New York’s wrongful death law which limits damages to pecuniary loss is clearly inconsistent with the Constitution and laws of the United States.

In Sinkov v. AmeriCor, Inc., 419 Fed. Appx. 86,(2d Circ.,2011) an action for wrongful death of a decedent with no dependents The Court held;

“AmeriCor correctly points out that under New York law, post-death lost-earnings damages are not recoverable in wrongful death cases where a decedent leaves behind no dependents and no persons who reasonably expect to receive future support from him. See Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 199-200 (2d Cir. 2002); Zelizo v. Ullah, 2 A.D.3d 273, 769 N.Y.S.2d 255 (1st Dep’t 2003). Had the district court admitted Dr. Crakes’s earnings testimony as bearing on plaintiffs’ state law claims, we would agree that his testimony was irrelevant and should have been excluded. But that is not what the district court did. The record makes clear that Dr. Crakes’s testimony regarding loss of earning capacity was introduced only for, and was explicitly limited to, the estate’s 42 U.S.C. § 1983 claim.

The New York authority on which AmeriCor relies does not address the extent of damages permitted in an action for violation of constitutional rights. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have concluded in the past, for example, that New York’s survival statute was inconsistent with § 1983 because (at the time) the New York statute “prevent[ed] the survival of claims for punitive damages after the death of the plaintiff’s decedent.” McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). In McFadden, we stated that we have no doubt that limitations in a state survival statute have no application to a [§] 1983 suit brought to redress a denial of right that caused the decedent’s death. To whatever extent [§] 1988 makes state law applicable to [§] 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under [§] 1983 for unconstitutional conduct that causes death.”

In the oft-cited case Jaco v. Bloechle, et. al., 739 F.2d 239 (6th Circ., 1984) the 6th Circuit Court of Appeals followed the reasoning of the Supreme Court in Robertson in reversing the dismissal of plaintiff’s §1983 complaint.

In Jaco plaintiff’s son was shot and instantly killed by police officers. Among the actions brought by plaintiff alleging violation of decedent’s civil rights were claims predicated upon violations of the decedent’s Constitutional rights and 42 U.S.C. §1983. The appeal ensued when the District Court held that decedent’s civil rights cause of action did not survive his death and thus granted defendant’s Motion to Dismiss.
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The family of Javier Salinas — the 36-year-old construction worker from Danbury, Connecticut who in October fell more than 50 feet to his death at the Chelsea Piers construction site in New York City — is suing his former employer, the worksite general contractors and the owners of the property where he died.

The dangers inherent to a construction site are well-known and can be prevented if simple, common-sense precautions are in place. Those dangers are particularly well-known where there are elevation-related risks involved. In fact, specific laws have been enacted to protect workers whose job requires them to perform construction activities in areas that are elevated. In this instance, a worker was killed because he was installing a roof over 40 feet in the air on a windy day. A strong gust of wind caused him to lose his balance and fall from the roof striking to a concrete slab on the ground below. The Wrongful Death of this 36-year old worker left his wife without a husband and their three children without their father. The entire accident could have been avoided if owner and contractors had taken steps to insure that there were proper safety harnesses or railings in place. In addition, a Site Safety Manager or Construction Foreman could have exercised some common sense and told the workers to not install the roof that day because it was too windy or that they should not install the roof until the safety devices were in place. Apparently, there were no safety devices at all and a tragic death occurred.

The available safety devices that would have prevented this accident include both safety harnesses and safety railings. A construction safety harness is necessary for any job that involves vertical travel or work at an elevation. Approximately 37 percent of serious injuries and deaths at construction sites are attributed to falls. Safety harnesses are attached to life lines via lanyards, which are designed to minimize injury from “jerk back” during a fall. The OSHA and ANSI requirements for safety harnesses, life lines and lanyards are matters of public record and are disseminated throughout the construction industry. In addition, OSHA compliant fall protection railing systems are also readily available and well-known throughout the construction industry to eliminate falls from roofs, open floors, and other hazardous areas on construction sites.

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Staten Island Advance / Landov
Drunk Driving Accident

A supervisor at a state-run psychiatric center has been indicted for the criminally negligent homicide of an autistic 27-year-old patient.

The supervisor, Erik Stanley, said he used appropriate procedures in attempting to subdue Jawara Henry, 27, who died Dec. 4 at a Staten Island psychiatric center. But authorities said medical evidence showed he used a chokehold while Henry was on his stomach, although he didn’t intend to harm him, reports the New York Daily News.

Stanley, who was also charged with endangering the welfare of an incompetent or physically disabled person in today’s indictment, turned himself in and was released on his own recognizance.

The investigation included a review of medical and forensic evidence, in addition to interviews with eyewitnesses to the incident.

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Our Partner, Jeffrey Bloom, recently settled a medical malpractice case in New York Supreme Court, Nassau County for $3,375,000 for the wrongful death of a 46 year old husband and father of two young children in which the patient died on the operating table during the performance of back surgery.

This complex case involved surgical error by the vascular and orthopedic surgeons and anesthesia malpractice. It was alleged that major blood vessels were lacerated during the surgery resulting in acute blood loss, a fact confirmed by the Medical Examiner, that no timely repair was performed by the surgeons and that the anesthesiologist failed to recognize the emergency, perform resuscitation and treat the patient’s acute hemorrhage by administering adequate blood and blood replacement products.

The defendants asserted that the patient, who was unemployed and on disability, had serious cardiac conditions which significantly decreased his life expectancy.

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$8 Million Settlement In Wrongful Death Case
Drunk Driving Accident

In July, 2007 a drunk driver took the life of a 23 year old woman. That woman was the mother of a 4 year old child. That child’s life was forever changed by the reckless and negligent conduct and actions of the drunk driver. Although the child’s life will never be the same – – the family of that young child sought expert representation from highly skilled lawyers to prosecute a civil claim for the wrongful death of the mother and to protect the interests and rights of her little child.

This past week Ben Rubinowitz and Diana Carnemolla successfully resolved this claim after more than 3 years of litigation for one of the highest awards ever for this type of case – – 8 million dollars. The claim stemmed from the reckless and negligent actions of a drunk driver when he drove drunk and collided head-on with a car driven by a 23 year old woman. The mother was killed in the accident but her young child, who was a belted back seat passenger in her car, survived.

The claim was brought under a number of legal theories which included the Wrongful Death of a mother, her Conscious Pain and Suffering for the few minutes that she lived following the impact, the Zone of Danger Damages suffered by both this mother/driver before she died and the Zone of Danger Damages suffered by the young child in witnessing her mother’s death.

“This was a horrible tragedy of unimaginable proportions” said Ben Rubinowitz who also explained that “while no amount of money can ever compensate a young child for the loss of her mother, we know that the law does provide for compensation in this instance, as it should. Our goal was to maximize the recovery for this young child.” Diana Carnemolla, who worked tirelessly in prosecuting this case with Rubinowitz stated, “This is the largest award ever made for this type of claim. Although we are terribly saddened by the loss of a young child’s mother, we are delighted that we were able to secure this large award to provide for this child’s future.”

Both Rubinowitz and Carnemolla are partners of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, a firm that specializes in all aspects of Personal Injury Claims including Wrongful Death, Drunk Driving accidents, Car, Bus and Train accidents, construction accidents, Premises accidents, Civil Rights violations, Products Liability cases and Medical Malpractice cases.

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In Anastasi v. Terio, decided by The New York Appellate Division, Second Department on May 17, 2011, reversed the granting of Summary Judgment for defendants in this action for wrongful death.

The case involved a car accident that took place at an intersection in Queens, New York City. The traffic proceeding in the same direction as the plaintiff’s vehicle was controlled by a stop sign, while the traffic proceeding in the same direction as the defendants’ vehicle was not controlled by any traffic device. The plaintiff’s decedent was sitting in the back seat of the automobile operated by the plaintiff. In reversing The Court held;

“Contrary to the Supreme Court’s determination, the defendants failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427, 427). Although a stop sign governed the intersection for traffic proceeding in the direction that the plaintiff’s vehicle traveled, triable issues of fact exist as to whether the defendant driver was free from negligence and, if not, whether that negligence was a proximate cause of the accident (see Myles v Blain, 81 AD3d 798; Kim v Acosta, 72 AD3d 648; Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Cox v Nunez, 23 AD3d 427). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.”

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Our partner Howard Hershenhorn recently settled this case in New York Supreme Court, New York County. The case involved the wrongful death of a 38 year old construction worker who fell from a ladder at 80 Centre street in Manhattan. The construction worker was in the process of demolishing a chimney when the 6 foot A-Frame ladder upon which he was standing shifted causing him to fall 25 feet. He sustained fatal injuries including a brain injury and other internal injuries from which he later died . On behalf of the Estate we argued that the defendants violated sections 240(1) and 241(6) of The New York Labor law and that these violations by the Owner and General contractor were the proximate cause of the accident and the worker’s death. The defense argued that the worker was the sole proximate cause of the accident in that he failed to use available safety devices.

The New York Construction Accident Lawyers at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.

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750px-PA-366.svg.pngJeffrey and Diana Acre have filed a wrongful death lawsuit against the Pennsylvania Department of Transportation over the 2009 death of their daughter. They allege that PennDOT’s poor design and maintenance of Route 366 in New Kensington was a contributing factor in the death of 16-year-old Kylee Jo.

In the lawsuit filed in Westmoreland County Court, the parents blame PennDOT for not filling in a steep, 4-inch rut between the road and the shoulder. The suit says the design flaw is even more dangerous because the dropoff is located on a curve.

Kylee Jo was a front-seat passenger in an SUV that slammed into a guardrail. She was not wearing a seatbelt. The driver of the vehicle, Jonathan Patrick O’Sullivan, was speeding and under the influence of alcohol at the time of the accident. He was charged with vehicular homicide, drunken driving, speeding and several related crimes.

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