New York Workers' Compensation Board in bad shape, says Times

A tremendous, front-page story in The New York Times today is of great interest to every New York workers' compensation attorney, insurance carrier attorney and workers' compensation claimant. In essence, the Times's article lays bare most of the deep faults and deficiencies of New York State's workers' compensation system that stop claimants from getting the prompt and fair compensation they are entitled to.

The product of an 18-month investigation by the Times, the article reveals a system overrun with ambiguities and inefficiencies - a sprawling $5.5 billion-a-year bureaucracy that is the most expensive in the nation yet pays injured workers the least. It is a system based on outdated, 90-year-old laws and managed by a handful of political appointees, many of whom are not even lawyers.

It is a broken system that can make claimants wait years for payments while they accumulate debt, lose their houses and sink into depression.

The Times reporters clearly went to great lengths to give employers' side of the story, with more than enough space spent on detailing some specious claims from a handful of workers. Even so, the article provides a sobering look at the human suffering caused by New York's Byzantine system - a system, the Times not-so-subtly suggests, that is in dire need of major reform.

Working closely with workers' compensation lawyers, I have seen firsthand many of the things the article describes: the baffling results of "independent" medical examinations, conducted by doctors paid by the insurance carriers; the "meat chart" which indicates how much compensation different injuries to various limbs are worth, regardless of that limb's importance to a workers' profession; and the longstanding $400 cap on weekly compensation payments, a small fraction of what many totally-disabled workers' compensation claimants earned on the job.

It is rare for any issue to receive this much attention from a major outlet like the Times. The purpose of a story like this is to inform a wide swath of readers of a little-known problem and, hopefully, shake things up. The Workers' Compensation Board and the state are now under great pressure to respond to this article in some way. With a little bit of luck, this response will come in the form of changes to make the Workers' Compensation Board the bulwark of workers' rights its founders intended.

Crane accident on Whitestone Bridge stalls traffic, knocks down sign, injures workers

Though I work for New York auto accident lawyers and New York crane accident lawyers, this is the first time I've seen an incident that combines both of these particular practice areas. An M.T.A. boom truck hit an overhead sign on the Whitestone Bridge on Friday, injuring two workers and snarling traffic for hours.

The boom truck (a flatbed truck with a crane mounted on it) crashed into the sign around 1:10 p.m. Friday, destroying the sign and knocking debris into the road. Two workers riding in the bed of the truck sustained minor injuries and the bridge was shut down for six hours as the M.T.A. worked to clear the roadway.

The cause of the accident would be comic if the repercussions were not so serious: someone on the boom truck forgot to lower the crane before the truck started moving. Suddenly too tall to clear the sign, the truck smashed into it.

It is distressing that none of the workers on the truck (there were at least three) realized that their crane was extended. While it is surely fortunate that no one was seriously injured, this accident inconvenienced thousands of commuters and was almost shockingly avoidable.

There are certainly many accidents which are not indicative of some systemic failure. Even so, I hope the M.T.A. investigates this incident and subjects its procedures to a thorough evaluation.

David's Weekend Tally: Auto Accident Kills Pregnant mother of three,

You would think that the sidewalk is a safe place, at least in terms of not getting hit by a car. Two woman found out otherwise this Friday when a van jumped the curb and struck them, the New York Times reports. One of the women, Ysemy Ramos, who was three months pregnant and had 3 other children at home, sadly died as a result of her injuries. The other woman, Tassia Katsiambanis, fractured her elbow.
The driver allegedly was following the woman as they walked down the street, according to the Times and has been arrested and charged with driving while intoxicated.
And so another wrongful death case will run it's course in the New York Courts. Here because the woman was young, had three children and was employed her family will at least be able to recover a fair amount of compensation, particularly if they are represented by a top New York Personal Injury Lawyer.
However, there will be no compensation for the lost love and companionship or the pain and suffering of and by the children or their father. As I have spoken about before, New York wrongful death laws do not allow for that.

Las Vegas considers change to incorporate safety into bidding process

The top story in The Las Vegas Sun today is of some interest to New York construction accident lawyers. The Clark County commissioner is pushing for a change that would mandate a review of contractors' safety records before they bid on construction projects. The contractors with the worst records would not be considered for projects, no matter how low their bids may be.

Clark County, which contains Las Vegas, is considering the change after it was discovered that Perini Building Co. won a $1.2 billion contract to build an airport terminal despite having served as the general contractor on three recent construction projects at which nine fatal accidents occurred.

Under current rules the county did not even consider this contractor's less-than-stellar safety record. All it looked at was the $1.2 billion bid - $200 million less than the next-lowest bidder.

With the proposed changes such a contractor would be barred from even submitting a bid. It is a good system that protects workers' safety while providing a powerful financial incentive for contractors to run a safe operation.

While cutting back on safety procedures and equipment will save contractors a few bucks in the short term, the loss of public works contracts could be devastating. With some luck, Clark County will adopt the change and contractors will be smart enough to act in their own best interest by protecting their workers.

I asked one of the New York construction accident lawyers I work with if New York City examined a contractor's safety record when considering its bid. He explained that New York's strong labor laws usually ensure that contractors with the worst safety records face huge problems attaining affordable insurance. If these contractors are able to get coverage at all, the premiums are so high that it is nearly impossible for them to submit a competitive bid.

Still, sometimes even the worst contractors find ways to slip through the cracks. As long as New York City is instituting dozens of reforms to more closely inspect work sites and record safety infractions, it might as well consider something similar to the Clark County change. Tying workers' safety this closely to contractors' bottom lines seems a surefire way to reduce construction accidents and save workers' lives.

Recent cases

Ewing v. Brunner Intern., Inc., 2009 N.Y. Slip Op. 02046 (4th Dep't 2009)

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when a portion of the flat concrete roof on which he was standing collapsed, causing him to fall. We agree with plaintiff that Supreme Court erred in denying his motion seeking partial summary judgment on liability against Brunner International, Inc. (defendant) under Labor Law § 240 (1) as well as dismissal of the affirmative defense alleging that plaintiff's culpable conduct contributed in whole or in part to the accident. Plaintiff met his initial burden inasmuch as “[t]he collapse of a work site itself constitute[s] a prima facie violation of Labor Law § 240 (1)' ” (Bradford v State of New York, 17 AD3d 995, 997, quoting Richardson v Matarese, 206 AD2d 353, 353), and defendant failed to raise a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries (cf. Tronolone v Praxair, 22 AD3d 1031, 1033; see generally Felker v Corning Inc., 90 NY2d 219, 224). In support of his motion, plaintiff submitted his deposition testimony in which he testified that it was the general practice on the work site to wear safety harnesses only when “tearing off” asphalt or working on “bad concrete” and that, when he fell, he was not tearing off asphalt and all but four inches of the concrete decking requiring replacement had been removed. Defendant failed to submit any evidence raising a triable issue of fact whether plaintiff, a foreman on the roofing project, “ knew or should have known' [that he was expected to wear a safety harness] . . .; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured' ” (Ganger v Anthony Cimato/ACP Partnership, 53 AD3d 1051, 1053; cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40).

Anthony Clarke, et al., Plaintiffs-Respondents, v. The Morgan Contracting Corporation, etc., 2009 N.Y. Slip Op. 01917 (1st Dep't 2009)

Plaintiff, who was employed to perform carpentry work on a construction project at SUNY Downstate Medical Center, was injured when two metal stud beams that were being hoisted from the street were dropped from a sidewalk bridge and landed on his face, chest and shoulders. Plaintiffs met their burden of demonstrating that defendant's failure to provide adequate safety devices was a contributing cause of plaintiff's injuries in violation of § 240(1) (see Kielar v Metro. Museum of Art, 55 AD3d 456, 458 [2008]; Greaves v Obayashi Corp., 55 AD3d 409 [2008]), and plaintiff was not, under any view of the evidence, the sole proximate cause of his injuries (see Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007]; Kyle v City of New York, 268 AD2d 192, 196 [2000], lv denied 97 NY2d 608 [2002]).

The court properly denied defendant's motion for summary judgment on plaintiffs' § 241(6) claim premised on Industrial Code (12 NYCRR) § 23-1.7(a)(1). This rule is sufficiently specific to support a cause of action under § 241(6) (see Murtha v Integral Constr. Corp., 253 AD2d 637, 639 [1998]), and a material question of fact remains as to whether the area where the accident occurred was an area “normally exposed to falling material or objects,” and as to whether the sidewalk bridge without safety netting provided appropriate overhead protection to workers in that area.

We have considered defendant's remaining arguments and find them unavailing.

Upstate uninsured employer fined by Workers' Compensation Board

An Ulster County hotel has been fined more than $40,000 for failing to provide workers' compensation coverage for its employees. The Nevele Hotel had been sanctioned by the New York State Workers' Compensation Board on three previous occasions for the same offense.

Judge Bruhn ordered the hotel to pay $35,277 in restitution, costs, penalties and charges to the Workers' Compensation Board along with a separate $5,000 fine.

Working closely with New York workers' compensation lawyers, it is good to see the Workers' Compensation Board taking action against recalcitrant employers.

When an employer does not carry workers' compensation insurance it hurts its employees. Employees who file workers' compensation claims against such employers are usually picked up by the Uninsured Employers' Fund, a division of the Workers' Compensation Board that handles uninsured claims.

For the most part, the UEF acts as any other workers' compensation insurance carrier. It sends attorneys to hearings and claimants to independent medical examinations. It assumes responsibility for all compensation and medical benefits. Though it attempts to recover funds from claimants' employers, the claimants' benefits are guaranteed no matter how little their employers ends up paying.

A key difference between the UEF and a normal workers' compensation insurance carrier is the amount of time each has to pay an award. While a normal workers' compensation carrier will usually pay an award in a matter of days or weeks, the UEF is allowed to take a much longer time.

Working alongside New York workers' compensation lawyers I have seen cases where the UEF has taken months to pay an award. Though we send letters and request hearings, it usually does little good. Since the UEF is part of the Workers' Compensation Board the Board typically does not schedule the usual hearings or issue the usual penalty fees. Instead claimants are made to wait months for the benefits they are entitled to because they had the bad luck of working for an uninsured employer.

For claimants, who often have no source of income other than their compensation checks, these months spent waiting for payment are painful, almost impossible. Still, it would be far worse if the UEF did not exist. Uninsured claims would be left to languish, waiting for employers who may never pay what they owe.

Clearly, the root of the problem lies with employers who do not carry insurance. This latest action against the Nevele Hotel may convince some employers to abide the law and pay for workers' compensation insurance. Though it will never likely inspire full coverage across New York, the Workers' Compensation Board must continue to pursue employers who would ignore their workers' well being.

NYS Department of Labor commemorates anniversary of Triangle Shirtwaist Factory fire

In a quiet ceremony today, the New York State Department of Labor commemorated the 98th anniversary of the Triangle Shirtwaist Factory fire. One of the worst workplace accidents in New York City's history, the fire claimed more than 140 lives and shocked the state into creating some of the first worker protection and workers' compensation laws in the nation.

On March 25, 1911, a fire broke out on the eighth floor of the Asch building, one of three floors occupied by the Triangle Shirtwaist Factory. Although the eighth and tenth floors were quickly evacuated, word of the fire did not reach the ninth floor. Fueled by rags, cloth and lint, the fire quickly spread upwards.

By the time the workers on the ninth floor realized the building was on fire it was too late. The flimsy exterior fire escape had already collapsed under the weight of escaping workers. The two interior stairwells were also inaccessible. One stairwell was on fire. The other was locked, an effort by the management to prevent workers from sneaking out.

With no way to escape the heat of the blaze, workers began to jump out the windows. Louis Waldman, a witness, described the scene:

Word had spread through the East Side, by some magic of terror, that the plant of the Triangle Waist Company was on fire and that several hundred workers were trapped. Horrified and helpless, the crowds — I among them — looked up at the burning building, saw girl after girl appear at the reddened windows, pause for a terrified moment, and then leap to the pavement below, to land as mangled, bloody pulp. This went on for what seemed a ghastly eternity. Occasionally a girl who had hesitated too long was licked by pursuing flames and, screaming with clothing and hair ablaze, plunged like a living torch to the street. Life nets held by the firemen were torn by the impact of the falling bodies.

In less than 30 minutes, 145 workers, mostly young immigrants, had died. The company's owners were never convicted on criminal charges but did lose a subsequent civil suit. Plaintiffs won $75 ($1,650 2009 dollars) for each worker that lost her life. Two years later one of the owners was arrested for locking his stairwell doors during business hours. He was fined $20 ($440 2009 dollars).

New York has made tremendous progress since the Triangle Shirtwaist Factory fire. Strong laws now protect the safety and rights of workers. These laws have helped prevent a tragedy on this scale from occurring in the 98 years since the fire. Compensation for accidents has increased as well. Thankfully, today a worker's life is worth a great deal more than a paltry $1,650.

Though the progress we've made is undeniable, there is much left to do. New York's wrongful death laws are woefully outdated and unfair. Immigrant workers still struggle for fair treatment. Contractors looking to get a job done on the cheap are frequently responsible for construction accidents. Legislators, personal injury lawyers and ordinary citizens must continue to press for expanded worker protection until every worker can go to work without fear of injury or exploitation.

David's Weekend Tally: Another New York Constructon accident death; New York City pays for 1995 shooting.

Death. It leaves a hole in the hearts of loved ones. In an instant it wipes away all the things that a person could have given to the world.
But, somehow I don't think anyone wants to hear me philosophize. I am a New York Injury lawyer. Have been for over thirty years. My way of looking at these events is part father, part lawyer. The father part is simple. These are tragedies, no matter how you cut it. Sad heart wrenching tragedies.
I don't think anyone wants to hear that from me either. There are lots of people out there who know better than I and can describe better than I what death is and what senseless death is.
But as a Plaintiff's New York Personal Injury Lawyer who probably handles more construction accident cases for workers in a year than most lawyers handle during their career I see something else.
I see that it took 13 years for the City of New York to finally put to rest and settle the wrongful death cases of two young men shot by Police in 1995. And I know that the family of Anthony Paino will now go through what the families of those two young men did. They will look for the best lawyer they can find and hopefully they will find a top New York Injury Lawyer who is also a New York Construction Accident Lawyer, like me. Why? Because they will need it.
The families will learn some things about the law and then they too will know why they need the best injury lawyer in New York.
They will learn that here in New York we have a law called Labor Law 240 and that it will bring about responsibility of the owner and general contractor of the site if the accident was a result of a failure to provide proper protection. But they will learn more. They will learn why the family's of the two young men that died settled their cases for a total of $1.15 million. Is a young mans life only worth about a half million dollars? The answer lies in the fact that we have antiquated laws in New York about wrongful death and there is no compensation for the loss of love, society, affection or companionship. What that means is that the Mr. Paino's fiancee will not get compensated for her loss nor will his family unless he supported them and then only to the extent that they can prove that part of his earnings would have gone to their support.
So goes that until the legislators of New York see fit to change that law. But the City of New York faced publicity so they may have felt they had to pay more to shut down the trial. What does that mean for the Paino family. The public won't remember their grief a week from now let alone years from now after some company like AIG takes then through the wringer. Publicity not being an issue it will become a battle of lawyers and numbers. Very sterile and maybe less money.
Then they will hear about a Case called Cahill v. Triborough Bridge and Tunnel Authority and the words "sole proximate cause". Then the testimony will start and the witnesses will line up from the contractor and developer and they will talk about the safety meetings and how they told him to hook up his harness so many times, and even that very day. Why? Because their lawyers know about Cahill and because contractors will do the natural thing that humans do, defend themselves.
Hopefully the lawyers will do a great job for Anthony's sake and find out whether this is what they are telling us after the accident or it was really going on before. Hopefully they will learn whether there was a push on for speed and whether that affected the nature of how the worker's acted. Hopefully we will learn the truth.

Construction worker dies after fall from New York hotel

A New York construction worker died today after falling from the 10th floor of the Park Avenue hotel on which he was working.

The Times reports that Kate Lindquist, a spokeswoman for the Department of Buildings, said it did not appear that the worker, Anthony Paino from Staten Island, was wearing a harness at the time of the accident. Ms. Lindquist also indicated that the department would issue citations this afternoon. A stop-work order has already been put out for the site.

The Department of Buildings' swift response to this tragic construction accident is heartening. While probably of little immediate consolation to the family and friends of Mr. Paino, shutting down the site and investigating what went wrong is the right thing to do.

Oklahoma votes down crane-safety measure in wake of three deadly crane accidents

The Oklahoma House defeated a modest measure that would have forced aspiring crane operators to pass a certification test before being allowed to operate a tall crane. The Associated Press reports the measure was defeated 48-41.

Rep. Paul Wesselhoft, the author of the bill, said the measure aimed to bring the state's crane operators into early compliance with OSHA guidelines set to go into effect in 2013. With three deadly crane accidents in Oklahoma over the last year, Mr. Wesselhoft decided the state could not afford to wait for OSHA's deadline - it needed better regulations yesterday.

Unfortunately, the tired argument that even modest regulation will sink small businesses won the day. Though the bill's cost to any business would be minimal (crane operators need only pass practical and written tests to attain certification), several legislators still complained that the measure would adversely affect too many businesses that employ small cranes. The bill clearly states the regulations apply only to tall cranes, but this argument simply ignored this inconvenient detail.

It is a shame Oklahoma's legislature did not look to New York as an example. After New York City's crane collapses last year, the city moved swiftly to enact new regulations to help prevent future accidents. As with any new construction regulations these cost contractors time and money. Unlike Oklahoma, the city decided that the benefit to public safety outweighed contractors' increased costs and passed the changes.

Mr. Wesselhoft has pledged to continue working with the Department of Labor to draft a new version of the bill that may be acceptable to his Legislature. With luck, his colleagues will pass this bill before its already-modest provisions are watered down to the point of worthlessness.

100 Gather to Commemorate Crane Collapse

Survivors of last year's East Side crane collapse that killed seven and injured dozens gathered on the one year anniversary of the construction accident in order to remember the victims. Friends and family of the victims placed flowers and pictures around the site where the 11,000 pound crane collapsed one year ago. 

Many lives were changed forever following the accident. Lives were lost, buildings and businesses were destroyed and many have sustained lasting injuries as a result of being buried in the rubble. 

After the construction accident, the city's buildings commissioner resigned and dozens of construction oversight rules and regulations were passed in order to increase crane safety. 

David's Weekend Tally: AIG: Millions for defense but not one penny for tribute?

One cant' help but notice that AIG remains in the news, this time for paying out bonuses to their top executives which were legally obligated to pay before they were bailed out. We also heard that they have given about one third of the bailout money they received to other companies, called counterparties with whom they struck deals.
So the public will cry with outrage against these seemingly senseless payments of thier tax dollars, and they do have a point.
As a New York Injury Lawyer I wonder about something else. How will AIG act when they are confronted with paying out the claims that they have contracted with their insureds to indemnify them against. Will the cry of Rep. Robert Goodloe Harper "Millions for defense but not one penny for tribute" come to mind or will they fairly compensate the people who have been seriously injured as a result of the negligence and carelessness of those they contracted to insure.
Bonuses and counterparty payments go to those who are either inside, running the company or those doing business with the company. Needless to say AIG wants to stay on good terms with them. But injured claimants who bring claims or suits ask for compensation once and then they are out of AIG's life, unless the settlement they agree on includes what are called "structured payments" (long term annuity payments in lieu of up front cash) with an AIG company.
AIG does not care on what terms the injured leave nor for that matter how the New York Personal Injury attorneys that represented them feel, as long as they leave.
So they will do what they have always done, pay lawyers to defend the claims, to delay the claims, to take cases where they are clearly liable and try to wiggle out or pay less somehow. And when all is lost and they can't get an agreement that satisfies their need to pay nothing or less the case proceeds to trial.
So then the question is will the jury pool be fearful of hurting the insurance industry and unwittingly do AIG's bidding by awarding less or nothing ?
Does the public know that AIG has billions of dollars in reserves specifically set aside for the claims ? The public should know that they were required to and in fact have created these reserves based upon an estimate of what they will ultimately be responsible to pay. They do this when the claims are reported. It's the law. That's why they love delay. They hold the money, earn interest on it and don't pay the claims for years as their lawyers defend, delay and parry
If AIG can afford billions in bonuses and counterparty payments they surely should use the billions they have in reserves for the cases they insured against. But as Dennis Miller says that's just my opinion, I could be wrong.

Recent Cases

Rico-Castro v. Do & Co New York Catering, Inc., 2009 N.Y. Slip Op. 01789, 2009 WL 614451 (2nd Dep't March 10, 2009)

"The plaintiff was employed by nonparty Olympic Fence & Railing Co., Inc. (hereinafter Olympic Fence), a company hired by the defendant to remove an interior 12-foot fence topped with barbed wire in the defendant's warehouse and reinstall it elsewhere in the same warehouse. The fence was bolted to a concrete floor and holes needed to be drilled in the floor in order to move it. The warehouse was supported by concrete columns located near the walls.

The plaintiff initially used a 10-foot A-frame ladder in an open position without incident to cut the barbed wire topping the fence. However, he then used the A-frame ladder in a closed position in order to reach the fence. The floor upon which he placed the ladder was polished and slippery. While the plaintiff was standing on the top rung of the ladder, the ladder slipped. The plaintiff caught his arm on a metal hook protruding from the column when he fell, thus injuring it, and also sustained other injuries.

The Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging violations of Labor Law § 240(1), and denied those branches of the defendant's cross motion which were for summary judgment dismissing that cause of action and the cause of action alleging violation of Labor Law § 241(6). The plaintiff established his prima facie entitlement to judgment as a matter of law on the Labor Law § 240(1) cause of action, and, in opposition, the defendant failed to raise a triable issue of fact. The defendant also failed to establish its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action.

Contrary to the defendant's contention, the plaintiff was engaged in work covered by Labor Law § 240(1) at the time of the accident. Olympic Fence was hired to move a 12-foot fence bolted to a concrete floor and re-bolt it in a new location for purposes of reconfiguring a warehouse. Such activity clearly goes beyond routine maintenance and constitutes an “alteration” within the meaning of the statute (see Panek v County of Albany, 99 NY2d 452, 458; Joblon v Solow, 91 NY2d 457, 465).

The fact that the plaintiff was actually cutting barbed wire rather than physically moving the fence at the time of his injury is of no consequence under the circumstances. As the Court of Appeals stated in Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878, 882), “it is neither pragmatic nor consistent with the spirit of [Labor Law § 240(1)] to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts.”

Additionally, the record does not support the defendant's contention that the plaintiff's own actions were the sole proximate cause of his injuries. The defendant does not dispute the plaintiff's claim that he was not provided with adequate safety devices. Even assuming that the plaintiff was negligent in using the A-frame ladder in the closed position, that act alone is insufficient to strip him of statutory protection (see Rudnik v Brogor Realty Corp., 45 AD3d 828, 829).

Moreover, in this case, the plaintiff appears to have been following the example of his coworkers and acting with the tacit approval of his supervisor (see Pichardo v Aurora Contr., Inc., 29 AD3d 879, 880-881). Furthermore, nothing in the record suggests that, based on company protocol, the plaintiff should have returned to his company's facility to obtain a straight ladder, and the parties do not dispute that no straight ladders were present at the job site (cf. Robinson v East Med. Ctr., LP, 6 NY3d 550, 554).

The defendant's contentions that the Labor Law § 241(6) cause of action should have been dismissed because the plaintiff's work activity did not fall within the statute's ambit and because the plaintiff failed to allege a violation of a specific Industrial Code provision in a timely fashion are without merit. The activity in which the plaintiff was engaged constituted construction work within the meaning of Labor Law § 241(6) (see Joblon v Solow, 91 NY2d at 466).

The Supreme Court properly granted the plaintiff's cross motion for leave to serve a supplemental bill of particulars specifying Industrial Code violations even though the note of issue had already been filed. The supplemental bill of particulars does not contain new factual allegations, raise new theories of liability, or prejudice the defendant (see Dowd v City of New York, 40 AD3d 908, 911; Kelleir v Supreme Indus. Park, 293 AD2d 513, 514).

The defendant's remaining contentions are without merit."

Crooks v. E. Peters, LLC, 2009 N.Y. Slip Op. 01766, 2009 WL 615197 (2nd Dep't March 10, 2009)

"The plaintiff was injured when he fell from an aluminum extension ladder while securing piping to a wall of a warehouse owned by the appellant E. Peters, LLC (hereinafter Peters). The plaintiff, with the assistance of a coworker, cleaned the floor before leaning the ladder against the wall. The ladder had rubber feet which rested on the floor, but was not otherwise secured or protected against slipping or falling. The plaintiff then ascended the ladder to secure with a strap piping that he had installed the day before. According to the plaintiff, he was standing on the eighth rung of the ladder, performing work approximately 12 feet above the ground. When he drilled a hole in the wall, he felt "a slight jerk." The ladder then slid "straight down the wall to the side." When the ladder came to a rest on the floor, he was lying on top of the ladder and his right leg and knee were caught underneath it.

The Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by offering evidence that the unsecured ladder that he was standing on while working slipped, causing him to fall (see Lesisz v Salvation Army, 40 AD3d 1050, 1051; Blair v Cristani, 296 AD2d 471). In opposition, Peters failed to raise a triable issue of fact as to whether the plaintiff's own conduct was the sole proximate cause of the accident (see Lesisz v Salvation Army, 40 AD3d at 1051).

The Supreme Court properly denied that branch of Peters' cross motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action with respect to violations of 12 NYCRR 23-1.21(b)(4)(iv) and(v), as Peters failed to affirmatively demonstrate that those code provisions were inapplicable."

Workers' Compensation Approval Only Half The Battle

Because of the complex set of laws and policies surrounding workers' compensation in New York State, receiving compensation one is entitled to can be a very long and arduous process. Although the New York State Employment, Safety and Security Act of 1996 was supposed to reform the previously inadequate worker compensation law, it has become tangled by rules and regulations that require a licensed workers' compensation lawyer to sort through.

Recent Cases

In Ali v. Richmond Industrial Corp., 2009 N.Y. Slip Op. 01071, 873 N.Y.S.2d 207 (2nd Dep't February 10, 2009), the court held:

"The Supreme Court properly denied that branch of the appellant's motion which was for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 240(1) insofar as asserted against it, and properly granted the plaintiffs' cross motion for summary judgment on the issue of liability with respect to that alleged violation. The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability on so much of the complaint as alleged a violation of Labor Law § 240(1) by submitting deposition testimony establishing that the crane the injured plaintiff was operating fell or tipped over due to improper maintenance (see Fitzsimmons v City of New York, 37 AD3d 655; Cosban v New York City Tr. Auth., 227 AD2d 160, 161). In opposition, the appellant failed to raise a triable issue of fact. [*2]

Contrary to the appellant's contention, its status as an out-of-possession landlord/owner does not shield it from liability under Labor Law §§ 240(1) or 241(6) since the record shows that there was a clear nexus between it and the injured plaintiff (see Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333, 339-340; Coleman v City of New York, 91 NY2d 821, 822; Gordon v Eastern Ry. Supply, 82 NY2d 555, 560; Celestine v City of New York, 59 NY2d 938, affg 86 AD2d 592; cf. Abbatiello v Lancaster Studio Assoc., 3 NY3d 46). Further, there is no merit to the appellant's contention that the injured plaintiff was engaged in manufacturing work at the time of the accident or that the premises constituted a "factory" under Labor Law § 2(9) (cf. Jock v Van Petty, 176 AD2d 6, affd 80 NY2d 965). The appellant's additional contention that the injured plaintiff was merely engaged in post-construction testing at the time of the accident is not properly before this Court, since it was raised for the first time on appeal (see Mennis v Commet 380, Inc., 54 AD3d 641).

The Supreme Court also properly denied that branch of the appellant's motion which was for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 241(6) predicated upon an alleged violation of Industrial Code §§ 23-8.1, 23-8.2, and 23-8.5 (12 NYCRR 23-8.1, 23-8.2, 23-8.5). As with its opposition to the plaintiffs' cross motion with respect to the alleged violation of Labor Law § 240(1), the appellant failed to demonstrate that it was not an owner under the statute or that the injured plaintiff was not engaged in a protected activity. Further, the appellant failed to submit any evidence establishing that it did not violate the subject Industrial Code provisions. Since the appellant failed to make a prima facie showing of entitlement to judgment as a matter of law, that branch of its motion was properly denied regardless of the sufficiency of the plaintiffs' opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320)."

In Kozlowski v. Ripin, 2009 N.Y. Slip Op. 01620, 2009 WL 564526 (2nd Dep't March 3, 2009)
the court held:

"The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the cause of action pursuant to Labor Law § 240(1) by his deposition testimony that, while he performed his assigned work, the unsecured ladder on which he was standing began to shake from side to side, causing him to fall to the floor (see Salon v Millinery Syndicate, Inc., 47 AD3d 914; Hart v Turner Constr. Corp., 30 AD3d 213; Boe v Gammarati, 26 AD3d 351; Montalvo v J. Petrocelli Constr. Corp., Inc., 8 AD3d 173; Pineda v 79 Barrow St. Owners Corp., 297 AD2d 634; Orellano v 29 E.37th St. Realty Corp., 292 AD2d 289). The evidence that the bolt was missing from the ladder's stabilizing bar after the ladder fell established, prima facie, that the bolt was either missing, damaged, or loose when the plaintiff used the ladder. In opposition, the defendants failed to raise any triable issues of fact.

The plaintiff also met his burden of establishing a violation of the Industrial Code, and that such violation was a proximate cause of his injuries (see 12 NYCRR 23-1.21[b][3][i], [ii]). Although the comparative negligence of a plaintiff is a defense to a cause of action based upon Labor Law § 241(6), so as to preclude the award of summary judgment to a plaintiff on that cause of action (see Johnson v Flatbush Presbyt. Church, 29 AD3d 862), the defendants failed to offer evidence in admissible form sufficient to raise a triable issue of fact with respect to this defense (see Zuckerman v City of New York, 49 NY2d 557, 562)."

In Chlebowski v. Esber, 58 A.D.3d 662, 871 N.Y.S.2d 652 (2nd Dep't January 20, 2009) the court held:

"The plaintiff was employed by the third-party defendant New York Store Fronts, Inc., a company hired by the defendants to remove and replace imitation brick on the exterior of a building they owned. While working at the building, the plaintiff was standing on a closed ladder on top of a scaffold when the scaffold suddenly moved, causing the plaintiff to fall 10 feet to the ground. The defendants had not provided the plaintiff with any safety devices.

Labor Law § 240 (1) provides, in pertinent part, “[a]ll contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” “In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” (Rudnik v Brogor Realty Corp., 45 AD3d 828, 829 [2007]; see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]). Labor Law § 240 (1) “creates a liability that is strict, or absolute, in two senses: the duty it imposes is nondelegable, and thus contractors and owners are liable under the statute whether or not they supervise or control the work; and where an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39). There is no liability “where a plaintiff's own actions are the sole proximate cause of the accident” (id.).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the defendants failed to provide him with any safety devices, and that their violation of Labor Law § 240 (1) was a proximate cause of his injuries (see Rudnik v Brogor Realty Corp., 45 AD3d 828 [2007]; Guaman v New Sprout Presbyt. Church of N.Y., 33 AD3d 758 [2006]; Lopez v Melidis, 31 AD3d 351 [2006]; Tavarez v Weissman, 297 AD2d 245 [2002]). In opposition, the defendants failed to raise a triable issue of fact. While it is possible that the plaintiff was negligent in placing a closed A-frame ladder against the wall on top of the scaffold, his conduct cannot be considered the sole proximate cause of his injuries (see Rudnik v Brogor Realty Corp., 45 AD3d at 829; O'Connor v Enright Marble & Tile Corp., 22 AD3d 548 [2005]; Torres v Monroe Coll., 12 AD3d 261 [2004]; Tavarez v Weissman, 297 AD2d 245 [2002]).

The defendants' remaining contentions are without merit. "

One story of a personal injury case: Toys 'R' Us bathroom stall collapses on safety advocate

A recent post by Jennifer L. F. McNichols, the founder of the popular consumer safety blog ZRecommends, describes her two-year struggle for justice after an accident at her local Toys 'R' Us.

According to her post, during a 2006 visit to the store Ms. McNichols took her two-and-a-half-year-old daughter to use the store's bathroom. As she shut the door to the handicapped stall the entire partition collapsed on her. Though Ms. McNichols shielded her daughter from the bulk of the impact, the 65-pound partition hit her - hard - on the shoulder and back.

Soon after the incident she began to feel pain throughout her body. She could no longer do routine tasks like wash dishes or drive a car. Shoes that were once comfortable now hurt her feet after only a few minutes of walking. Though once able to comfortably carry her daughter wherever she went, the pain now made it impossible.

After her first visit to a doctor, Ms. McNichols filed a complaint with the Toys 'R' Us "Risk Management Office." The office assigned her a file number and a case worker and gave its assurances that her case would be dealt with promptly and carefully.

Problems arose immediately. Ms. McNichols's case worker was on indefinite medical leave. Her calls to the office were forwarded to representatives who were unfamiliar with her accident. After a few months, Toys 'R' Us sent her a letter claiming it had been unable to contact her by telephone. Her own contact with Toys 'R' Us aside, Ms. McNichols's examination of her telephone records led her to conclude that Toys 'R' Us had not made a single attempt to contact her.

Meanwhile her situation worsened. She could not sleep through the night or exercise. Overweight for the first time, Ms. McNichols became depressed with her body. Even with insurance, co-payments for medication and regular treatment with a chiropractor and pain specialist took their toll on the family's finances. Unable to carry her 15-pound camera bag, she gave up her dream of being a working photographer.

It became clear to Ms. McNichols that Toys 'R' Us was never going to voluntarily take responsibility for her ever-worsening pain. She hired a personal injury attorney and now has a trial set for June.

If the case gets to trial, Ms. McNichols intends to blog about it daily. Ever the consumer advocate, she wants her readers to learn about the process she is going through and read how Toys 'R' Us defends its maintenance practices.

She has already accomplished a great deal. In publishing her narrative, Ms. McNichols has illustrated the great hardship that can arise from a single, simple accident. While this may be an old story for seasoned personal injury lawyers, for much of the general public it is quite novel. It will be interesting to see how her case progresses in the coming months. We, of course, wish her the best of luck.

Van Crashes into a Scaffold in Harlem, 6 Injured

6 people were injured when a van jumped a curb and knocked down a scaffolding. 

One of the construction workers was critically injured in the accident and had to be dug out of a pile of twisted metal and broken wood. 

Investegators believe that the van's accellerator got stuck as it pulled into traffic. The van (below) kept going for a block even after striking the scaffold. 

The construction worker was taken to Harlem Hospital and is expected to recover. 

The scaffolding was cited by the Department of Buildings last month for not meeting safety code standards. 

All But Three 9/11 Injury Lawsuits Settle

A court mediator announced that 91 wrongful death and personal injury lawsuits against airlines and airport security companies as a result of the September 11, 2001 terrorist attacks have been settled. The individual settlement amounts are unkown, but the total settlement is about $500 million. This leaves only 3 wrongful death cases for trial. 

These lawsuits came about after victims or their families opted out of Congress's September 11th Victim Compensation Fund.  5,500 claimants accepted the compensation funds, totalling to $7 million. However, once this fund was claimed, the victims were forbidden from pursuing other legal action. 

Nail salon worker struggles to get back pay she is entitled to

The New York Times published a report the other day on the struggles of Susan Kim, the nail salon worker who was awarded $182,000 in back pay and damages by a Manhattan jury one and a half years ago. The Times reports that since Kim's verdict she has not received a cent from her employer.

It is hardly for lack of trying. In addition to her lawyers' efforts in court, Ms. Kim has organized several small protests outside the shop she used to work, 167 Nail Plaza, and is trying to negotiate a payment plan with her old employers. Until she succeeds, she is earning a modest income from a few private clients and support from co-workers.

As one of Ms. Kim's lawyers, Steven Choi, points out, this kind of situation is common. When a small business has a large judgment against it there is a strong tendency for it to drag its feet, but, in the end, it does not really matter.

“At the end of the day, they really have to pay up or go into bankruptcy,” Mr. Choi said. “This judgment is not going to go away.”

Even so, it is difficult for people in Ms. Kim's position to live normal lives without the compensation that they are owed. Working with a Workers' Compensation attorney, I frequently speak to clients whose security depends on the regular arrival of their payments. When there is a change or disruption in their compensation we work quickly to resolve the issue and, if necessary, restore their rate of compensation.

Though a different kind of case, it does seem that Ms. Kim's lawyers are taking similarly urgent measures to get the recalcitrant owners of Nail 167 to pay the judgment. I hope their efforts soon bear fruit and Ms. Kim can begin getting her life back on track.

OSHA hands out $2.1 million in fines to three allegedly negligent companies

The Occupational Safety and Health Administration has had a busy few days: just as Congress began considering an increase to the agency's budget, OSHA sent out a flurry of major fines totaling $2.1 million.

The 50 fines were distributed among three companies: G.S. Robins & Co., a St. Louis chemical company; Blackstone Business Enterprises Inc., a New York sheet metal producer; and A-1 Excavating, a Wisconsin excavation company. Of the 50 citations, 36 are willful - the most serious that OSHA can issue.

A willful citation is a weighty accusation. It essentially accuses an employer of intentionally and knowingly committing a violation and carries a fine of $5,000 to $70,000.

Alleged violations at G.S. Robins & Co. accounted for the bulk of the willful citations. OSHA began its investigation of Robins after it learned of an incident in which eight of Robins's employees were hospitalized after exposure to a toxic dust. Among the company's 21 willfuls are accusations that Robins did not provide the proper safety equipment, training or tests for the hospitalized workers. The company's fines totaled $1.2 million.

Blackstone Business Enterprises Inc. (18 citations totaling $273,000) and A-1 Excavating Inc. (11 citations totaling $700,000) were cited on improper asbestos removal and cave-in hazards, respectively.

It is good to see OSHA aggressively protecting workers' safety. That the agency caught two of the companies' alleged infractions before any workers were hurt is even more impressive. Though OSHA is far from perfect, in these cases there is little it could have done better.

Working for New York personal injury lawyers, I get to see the incredible harm negligent employers can cause their workers. It is from that perspective that I urge OSHA to pursue these citations with the fervor they demand.

2007 Was Safest Year For Job-Related Deaths

Since record keeping began 16 years ago government officals say the city recorded the fewest number of on-the-job deaths in 2007. This was reported in an article on ny1.com website.
Officals say 81 workers died in 2007 and most of the accidents were construction accidents.
The city has issued new licensing guidelines for construction crane operators. Under the new guidelines to get a license to operate a crane in New York City the applicants must pass a national certification course, a background check, and a physical exam. They will also need at least two years of operation experience in an urban enviroment.
The crane operators have until September of 2009 to get re-certified or they will lose their license and possible face criminal charges.
Unfortunatly many workers are seriously hurt on the job every year. The Perecman Firm has many skilled personal injury attornies who can help you and your family with your case. Please call our office at 212-977-7033 for a free consultation

New York medical malpractice statute of limitations may get long overdue extension

A proposed extension to New York's medical malpractice statute of limitations may finally come up for debate in the State Senate.

The proposal, which has languished in Republican-controlled Senate Codes committees for close to a decade, aims to raise New York's medical malpractice statute of limitations to the standard enjoyed by much of the rest of the country. Now that the Democrats control the State Senate, there is a good chance the measure will pass.

New York's current statute of limitations gives patients two and a half years after the malpractice occurred to file a claim. The proposed change would give patients two and a half years after they discover the malpractice to file a claim.

This is a tremendous difference. Just as the recently-signed Lilly Ledbetter Fair Pay Act gives employees a fair chance to discover that they are being discriminated against, New York's proposed change gives patients a fair chance to discover that they have been the victim of malpractice.

Under the current rules, victims of medical malpractice are often barred from even seeking justice. Many ailments arising from malpractice don't present themselves for several years, by which time the statute of limitations may have already expired. There is presently no recourse for these patients - through no fault of their own they must suffer through their injuries with no chance at compensation.

For medical malpractice lawyers, this is an incredibly discouraging situation. To have to tell hurt people that you cannot help them because of a statutory oddity is the height of frustration.

With any luck, New York will soon join 45 other states in adopting a sensible statute of limitations for medical malpractice lawsuits and end this particular injustice.

David's Weekend Tally: Child's death still goes without justice, Crane problems just wont' go away

This Sunday's New York Times reminds us that children and bicyclists still die on the streets of New York as a result of automobile accidents. On a New York corner stands a lone White Schwinn bicycle, a place to remember Amelia Geocos, who was killed 7 months ago while riding her bicycle in an accident with a van. In fact, the Times reports that advocates say that since 2005, 20 bicyclists a year have died as a result of being in an accident with a vehicle. All the deaths, young and old alike, are tragic, but This New York Injury Lawyer cant' help but think that this death is likely another situation where what I believe are unfair New York wrongful death laws will not allow the family of the deceased to be compensated for the loss of the love and affection of their child and for the pain and suffering they have and will experience. Once again I remind all those who read this to talk or write to a legislator they know and tell them you think that this law is not fair and should be changed. Tell them it discriminates against the unmarried, the non-working and the very young and old. I promise that working to have New york change it's wrongful death laws will remain at the top of my list of injury lawyer jobs.

When a tragic construction accident doesn't happen to remind us of the continued need to keep the New York construction accident laws strong, reports of possible oversights and favoritism in the licensing of construction equipment operators such as cranes sure reminds me, as an injury lawyer that handles as many construction accident cases as I do, that it is imperative.

While business groups continue to fight to weaken New York construction accident laws, we, lawyers that handle construction accident cases, will continue to fight because we know that the ability of people to have their day in court and to make sure that those responsible also have their day, so to speak, is the best way to keep justice alive and well. As an injury lawyer my personal perspective is that when you see this going on under the nose of the New York City Building's Department you know that the American way is still the effective way. While government can help oversee private industry, in the end it is only when they are held financially responsible that they understand that we will not tolerate the deaths or the injury to our loved ones.

It is no different than what we as parents do for our children. We expect that they know that they will have consequences when they mess up. We make sure they do. That's how they learn.

Real estate developers and contractors are no different. That's how they learn too.
Please support the efforts of trial lawyers to keep your spouses safe.

Blizzard hits Eastern United States

A massive winter storm dumped 8 to 12 inches of snow on a wide swath of the East Coast, closing schools, canceling more than 900 flights and causing hundreds of auto accidents throughout the region.

So far the storm's damage has not approached that caused by the storm earlier this year, though it is formidable. Train and bus service in many areas has been completely shut down. Major airports remain open, but most flights have been canceled or delayed. More than 300,000 customers in Southern states are still without power. Perhaps most surprising, for the first time in five years, New York City public schools were shut down.

The situation on the roads was no better. With four car accident deaths across the Northeast and more than 350 auto accidents in New Jersey alone, roads have been snarled with traffic and quite dangerous. According to a spokesman for the New Jersey state police, most accidents were spinouts and cars hitting guardrails.

What's more, high winds have been complicating cleanup efforts as 30-mph gusts blow recently plowed snow back onto the road, making plowing largely futile in some areas.

As always in conditions like this, unless it is absolutely essential that you drive somewhere you are far better off staying home until the roads are clear. Consider taking public transportation if it is available. If the car is your only option, be sure to drive as safely as possible. Two guides I rely on, one from the University of Wisconsin (no stranger to snow) and the Car Talk winter driving guide, are both indispensable references.