Coronavirus (COVID-19) Alert: Our firm is open and serving the needs of existing and new clients.

SE HABLA ESPAÑOL               ГОВОРИМ ПО РУССКИ               MÓWIMY PO POLSKI

Coronavirus (COVID-19) Alert: Our firm is open and serving the needs of existing and new clients.

Construction Accidents | Car Accidents
Workers Compensation

Injured in an Accident? We Can Help. Call for a Free Consultation. 24/7

212-808-0448

Fell to the Ground from a Forklift

The plaintiff was a construction worker who worked for a framing company. The defendant failed to provide proper safety devices to either prevent a fall or protect the worker from a fall, such as a safety harness, safety line, or safety net. The plaintiff was directed to try and dislodge a wooden beam from a forklift stuck on the third story without any safety devices. The worker managed to dislodge the wooden beam, but in the process lost his balance and fell to the ground from over 3 stories above, resulting in devastating personal injuries. The court found that the defendant violated the NYS Labor law and was solely responsible for causing the accident.

________________________________________________________________________

GUAMAN-YUPANGUI v. HERSKOWITZ, et. al

Supreme Court Orange County, Index No.: 000213/14

Upon the foregoing papers the motion is determined as follows:

The plaintiff’s motion is granted as against Hidden Creek Condominium, Inc.; the cross-motion by Hidden Creek at Monroe Homeowners Association is granted; the cross-motion by Eliezer Herskowitz is granted in its entirety; and the cross-motion by Hidden Creek Condominium, Inc., is granted with respect to the plaintiff’s claims of negligence and violations of Labor Law §§200 and 241(6), but denied with respect to the plaintiff’s claim for violation of Labor Law §240(1).

The plaintiff, an employee of Madeira Framing, was injured on October 8, 2013, when he fell from the roof area of a new structure being built by owner Hidden Creek Condominium, Inc. Eliezer Herskowitz is the president of Hidden Creek Condominium, Inc. (hereinafter, “Hidden Creek”), and is alleged by the plaintiff to have been ultimately responsible for supervising the work on the site. The plaintiff also sued Hidden Creek at Monroe Homeowners Association, but no party has opposed that entity’s cross-motion for summary judgment dismissing all claims and cross-claims against it.

To impose liability on an owner or contractor pursuant to Labor Law§ 240(1), plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of his injuries (citations omi ted). Mierzejewski v City of New York, 121 AD3d 957,_ (2d Dept 2014).

Here, the plaintiff made out a prima facie case based upon his deposition testimony which established that he was not provided with a safety device to protect him from a fall, and that this was a proximate cause of the accident. See Cruz v. Cablevision Systems Corp., 120 AD3d 744 (2d Dept 2014).

Eliezer Herskowitz opposes the plaintiff’s motion and seeks summary judgment on the ground that he had no involvement in the project in an individual capacity. The Court agrees that there is no basis to hold Eliezer Herskowitz personally liable in this case.

Hidden Creek opposes the plaintiff’s motion and seeks summary judgment on the plaintiff’s claims under Labor Law§§240(1) and 241(6) on the ground that the plaintiff’s own conduct was the sole proximate cause of the accident. Hidden Creek seeks summary judgment on the plaintiff’s negligence and Labor Law §200 claims on the ground that it did not control or supervise the plaintiff’s work and had no awareness of the manner in which he carried that work out.

Liability under section 240(1) does not attach when the safety devices that plaintiffalleges were absent were’ readily available at the work site, albeinot in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence is the sole proximate cause of his injury (citation omitted). Gallagher v New York Post, 14 NY3d 83, 88 (2010).

In this case, the plaintiff acknowledged that he had seen a safety harness under the seat of his employer’s van, but he also testified that no one on the job utilized a safety harness, that he was directed by his supervisor to go up to where a forklift was having difficulty extricating itself from a wooden beam, and that he was not instructed to utilize a harness or any other safety device.

Contrary to the defendants’ contention, the record does not support a finding that the plaintiff was a recalcitrant worker. It is undisputed that the defendants failed to furnish the plaintiff with certain safety devices, or to provide him with immediate specific instructions to use an actually available safety device or avoid using a particular unsafe device (quotation marks and citations omitted). Ortiz v 164 Atlantic Avenue, LLC, 77 AD3d 807, 809 (2 Dept 2010).

Under these circumstances, the Court finds that Hidden Creek has not demonstrated the existence of a triable issue of fact with respect to the plaintiff’s Labor· Law §240(1) claim.

To state a claim under Labor Law §241(6), the plaintiff must allege the violation of a specific Industrial Code provision. Abelleira v City of New York, 120 AD3d 1163 (2d Dept 2014).

In this case, the plaintiff’s bill of particulars cites 12 NYCRR§§23-5.1, 23-5.3, and 23-5.8. None of these provisions are applicable, however, because they all relate to scaffolds, and no scaffolds were involved in this case. See Riccio v NHT Owners, LLC, 13 Misc.3d 1209(A) (Sup Ct, Kings Co 2006), affd 51 AD3d 897 (2d Dept 2008). Therefore, Hidden Creek is entitled to summary judgment dismissing this claim.

With respect to the plaintiff’s claims that Hidden Creek was negligent and that it violated Labor Law §200, Hidden Creek, as owner and general contractor, clearly had general authority to oversee the work site. There is no evidence, though, that it exercised direct supervision or control over the plaintiff’s work or that it bore “the responsibility for the manner in which the work [was] performed.” Ortega v. Puccia, 57 AD3d 54, 62 (2d Dept 2008). Accordingly, Hidden Creek is entitled to summary judgment on these claims as well.

Dated: January 16, 2015

Hon. ELAINE SLOBOD, J.S.C.

Select A Practice Area

Construction Accident

$1,700,000

$1.7 million verdict in New York County against the driver of a delivery truck who struck a man as he was crossing the street within the crosswalk in Manhattan.

Motor Vehicle Accident

$3,600,000

$3.6 Million settlement in New York Supreme Court for a Spanish speaking construction worker who fell off a 6 foot ladder and landed onto metal and wooden debris. The worker required lumbar spinal surgery for his injuries and needed surgeries to both knees from the fall. The worker could not return to work and suffered depression from his injuries resulting in a suicide attempt.

Construction Accident

$3,200,000

$3.2 million verdict in Queens Supreme Court for an undocumented Polish speaking construction worker who fell 12 feet during a demolition project. The worker fractured a vertebrae and herniated several discs in his spine requiring surgery. The plaintiff was unable to return back to work due to his injuries.

Motor Vehicle Accident

$1,500,000

$1.5 million verdict in Supreme Court Kings County for a woman struck by a car that jumped the curb and hit the pedestrian while standing on the sidewalk across from Prospect Park, Brooklyn.

Slip And Fall Accident

$1,900,000

$1.9 million verdict in New York Supreme Court for a bank manager who slipped and fell on a wet floor, resulting in spinal injuries. The building owner knew about a recurring leak inside the basement cafeteria but failed to correct the problem.

Construction Accident

$2,000,000

$2 million settlement in Queens Supreme Court for Polish construction worker who fell 2 stories from a bucket. The worker’s supervisor told the construction worker to ride the material bucket down to use the bathroom because it would save time. The worker fractured his pelvis in several places requiring surgery and was unable to return to work.

Medical Malpractice

$4,500,000

Defense counsel offers 11 cents to settle before trial and the jury renders a verdict of $4.5 million dollars for a medical malpractice victim and his wife. The action was commenced in New York Supreme Court for a patient who suffered massive internal bleeding during a lower back surgery when the surgeon negligently cut an artery and failed to promptly treat the condition, causing a loss of oxygen and injury to the brain. The anesthesiologist failed to properly monitor the patient’s vitals during the surgery and alert the surgeon of the drop in blood pressure.

Assault

$1,250,000

$1.25 million settlement in New York Supreme Court against building owner for negligent security that caused two women to be assaulted while leaving work. A masked man entered their elevator from a floor that was supposed to be closed off for construction. The assailant used a metal pipe to attack the two women. The two women split the settlement monies.

Construction Accident

$1,500,000

$1.5 Million settlement in New York Supreme Court for a construction worker who was struck by a piece of concrete that fell on his head and back. Workers above were chipping concrete despite knowing that people were working directly below them. The plaintiff required surgery on his neck but made a good recovery.

Medical Malpractice

$3,900,000

$3.9 million settlement in Supreme Court Kings County for a Brooklyn man who suffered a stroke shortly following an eye surgery. The patient was given medical clearance for local anesthesia but instead was placed under general anesthesia for 7 hours. The patient’s blood pressure was not well controlled resulting in a 30 minute hypertensive emergency near the end of the operation. The patient died after 7 years of living in different nursing homes.

CLIENT REVIEWS

    I did not think myself that we will win this difficult matter and become victorious, especially after being rejected by numerous other attorneys…but your professionalism Brett, dedication and determination, not to mention a huge heart, was how we prevailed

ALEKSANDER J.

    When I brought my situation to a local attorney he directed me to Brett Nomberg, and I’m so glad he did. Someone always was able to give me a status of what was going on. Your team made my wife and I realize we were dealing with a truly professional firm and at the same time, sympathetic to our needs. Great job. Excellent Customer Service.

GREG M.

    I want to thank you for all the help and support that was given to my parents by you and your colleagues. Your firm’s time, effort and dedication, is without question second to none and this led to a successful settlement

PAT R.

    We can’t thank you enough for the wonderful representation you provided and for believing in our case. It was very vindicating to have a judge and jury decide in our favor.

JANE AND TOM D.