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.
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On Tuesday, November 1, 2011, Cardozo Law School will hold a seminar on Opening Statements for more than 100 students as a prerequisite to its Intensive Trial Advocacy Program (ITAP). Featured Speakers at the lecture include Ben Rubinowitz, and Judith Livingston. Both Rubinowitz and Livingston have been recognized as two of the most successful Trial Lawyers in New York and both are members of the Inner Circle of Advocates — a group of the top 100 Trial Attorneys in the Country. Each of these speakers has obtained multiple million dollar verdicts in areas including Medical Malpractice claims, Automobile Accident cases, Construction Accident cases, Products Liability claims and Civil Rights violations. In the past both Rubinowitz and Livingston have been asked to give demonstrations of their successful Trial Techniques at the annual Continuing Legal Education program “Masters of Trial Law Seminar.” Rubinowitz stated “It is an honor to be asked to participate in this program. I am delighted that Judy Livingston will be joining me in this event.”

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In a New York construction accident case in which a worker suffered injury when he fell from a scaffold The Court rejected the recalcitrant worker defense. In Mazurett v. Rochester City School District, decided by The New York Appellate Division, 4th Department on October 7, 2011, the construction worker sustained injury when he fell from a collapsing scaffold at a construction site. In affirming the granting of summary judgment for the plaintiff on his 240(1) claim the Court rejected the defense that the plaintiff was a recalcitrant worker whose conduct was the sole proximate cause of the accident holding;

“Plaintiffs met their initial burden of establishing a prima facie violation of Labor Law § 240 (1). The fact that the scaffold collapsed “is sufficient to establish as a matter of law that the [scaffold] was not so ‘placed . . . as to give proper protection’ to plaintiff” pursuant to the statute (Dean v City of Utica, 75 AD3d 1130, 1131; see Tapia v Mario Genovesi & Sons, Inc., 72 AD3d 800, 801; see also Cantineri v Carrere, 60 AD3d 1331). In opposition to the motion, defendant failed to raise a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of his accident” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40). We reject defendant’s contention that plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed to use a more stable scaffold and to use a ladder to ascend the scaffold, defendant failed to submit any evidence that plaintiff refused to use a particular scaffold or ladder that was provided to him. “The mere presence of [other safety devices] somewhere at the work site” does not satisfy defendant’s duty to provide appropriate safety devices (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524, rearg denied 65 NY2d 1054; see Williams v City of Niagara Falls, 43 AD3d 1426; Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106). Even assuming, arguendo, that plaintiff was negligent, we conclude that his own conduct cannot be deemed the sole proximate cause of the accident inasmuch as plaintiffs established that a statutory violation was a proximate cause of plaintiff’s injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Calderon v Walgreen Co., 72 AD3d 1532, appeal dismissed 15 NY3d 900).”

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In Schick v. 200 Blydenburgh, LLC, et al., 2d Department decided October 4, 2011, the plaintiff sustained injury when he fell from a ladder on which he was standing. The Court set forth the facts as follows;

“On March 9, 2007, the date of the subject accident, Pal Supply had not yet moved into the premises. That morning, the injured plaintiff (hereinafter the plaintiff), a field technician for Verizon, was assigned to provide telephone service for Pal Supply at the warehouse. According to the plaintiff’s deposition testimony, upon arrival at the warehouse, he discovered that the installation of three telephone lines would involve connecting the terminal located at the telephone pole on the road to an existing underground wire leading to a serving terminal located inside the rear of the warehouse. The plaintiff testified that he thought he would then install the Network Interface Device (hereinafter the NID), which would house the three telephone lines, a few feet from this serving terminal. However, according to the plaintiff, a Pal Supply employee told him to run a wire from the serving terminal along the ceiling to an area above the office doorway, and to install the NID over the doorway.

The plaintiff further testified at his deposition that he installed the cross connection wire from the telephone pole terminal to the underground wire, tested the dial tone at the serving terminal, and attached the wire from the serving terminal along the wall leading from the serving terminal up to the ceiling. The plaintiff attached the wire to existing structural trusses using plastic zip ties, slicing off the tails of the ties with a diagonal cutter. As the plaintiff was attaching the wire to the trusses that were near the ceiling, which were approximately 20 feet high, he felt the ladder on which he was standing shift up and down, the bottom of the ladder slid out, and the plaintiff fell to the floor. The plaintiff alleged that the ladder slipped or shifted due to sand, dirt, or dust on the floor.”

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In Delaney v. Town Sports International, doing business as New York Sports Club, et al., 2d Department decided on October 4, 2011, the Court was with faced with the age old question of trivial or de minimis defects.

The plaintiff suffered injury as a result of falling over a moveable wooden platform which had been placed on the tile floor of a sauna located within the defendants’ premises. The platform was 1½ inches off the floor with a ½ inch lip or overhang, and was located approximately 9½ inches from the sauna entrance door. The defendants moved for summary judgment contending, among other things that any alleged defect was trivial in nature. In denying defendants’ motion for summary judgment The Court held;

“”Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case and is generally a question of fact for the jury” (Perez v 655 Montauk, LLC, 81 AD3d 619, 619; see Trincere v County of Suffolk, 90 NY2d 976, 977; Vani v County of Nassau, 77 AD3d 819). Although some defects are trivial and, therefore, not actionable as a matter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Vani v County of Nassau, 77 AD3d at 819), “[i]n determining whether a defect is trivial as a matter of law, a court [*2]must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury” (Perez v 655 Montauk, LLC, 81 AD3d at 619-620; see Trincere v County of Suffolk, 90 NY2d at 977-978; Sabino v 745 64th Realty Assoc., LLC, 77 AD3d 722).

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Please note that for those of you handling New York City Elevator Accidents the old system of Local Law 10/81 inspections and two year tests ended on January 1, 2009. The new rule published on April 14, 2010 requires the following inspections and test cycle:

“(5) Inspection and test cycle.

(i) Category 1. Except as otherwise provided by the commissioner, January first through December thirty-first of each year.

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The New York Appellate Division, Second Department, has, once again, ruled that the scope of a Frye hearing regarding a plaintiff’s theory of causation in a medical malpractice action is limited only to whether or not the expert’s opinion is based on generally accepted scientific principles, as opposed to the expert’s own unsupported beliefs. Specifically, plaintiff is not required to produce medical literature that demonstrates causation under parallel circumstances, but rather, an expert’s testimony must be allowed where a synthesis of various studies or cases permits the expert to reach such a conclusion.

In Lugo v. New York City Health & Hospitals Corp.,decided on September 13, 2011, the infant plaintiff indisputably suffered spastic diplegia type cerebral palsy, resulting in developmental delays and confirmed by abnormal findings on an MRI of his brain. He had been born with excellent Apgar scores, but experienced tremors when he was 40 minutes old. He was ultimately diagnosed in the NICU with a blood glucose level of 3 mg/dl (40 mg/dl being normal). After being given an infusion of glucose, his glucose level rose to a normal amount approximately one hour and twenty minutes after his birth.

The theory of plaintiff’s case was that the hospital’s failure to timely diagnose and treat the infant’s hypoglycemia caused his brain injury. The hospital’s attorneys successfully moved the Motion Court for a Frye hearing, supported by affidavits from its experts stating their opinion that a transient episode could not cause the type of brain injury seen on the infant’s MRIs. Following the hearing, the Motion Court precluded plaintiff’s experts from testifying with regard to their theory of causation, and dismissed the case, finding that plaintiff failed to provide “authoritative” medical literature that supported the theory that a “short episode” of hypoglycemia could have caused the infant’s brain injury.

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In a rather unusual case, the New York Appellate Division, Second Department held that there are limits to how far a defendant can go in examining a medical malpractice plaintiff during an Independent Medical Examination in New York. In the case D’Adamo v Saint Dominic’s Home decided on September 13, 2011, the Second Department was confronted with a defendant whose examining doctor wanted to perform a host of invasive examinations upon a non-communicative plaintiff who suffered from both mental and physical disabilities. The 19-year old plaintiff was a resident of the defendant’s group home as he suffered from mental retardation, cerebral palsy and autism. Through his guardian, the plaintiff alleged that the defendant’s malpractice caused him to sustain severe damage to his colon resulting in loss of a length of his colon and a permanent colostomy bag.

It is well-settled law in New York that a defendant is entitled to a medical examination of a plaintiff who places his physical condition in issue. It is also well-settled that the medical examination cannot be invasive in nature. In this case, the examining doctor chosen by the defendant initially sought to perform a rectal exam on the plaintiff with a rigid sigmoidoscope. Counsel for the plaintiff rightfully objected on the basis that the examination sought was clearly invasive and posed risks beyond that of a simple medical examination given the physical and mental condition of the plaintiff. The defendant and the examining doctor suggested alternative examinations involving a digital rectal examination, a pediatric sigmoidoscope and possible sedation. The plaintiff’s counsel again objected on the same basis. The Appellate Division, Second Department agreed that these examinations were too invasive and denied the defendant’s request.

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