New York Construction Accident Lawyer David Perecman Uses Tenacity and Experience to Win Tough Cases

One of the top New York construction accident lawyers explains how he leveraged state labor laws and strategic cross examination to succeed

By David Perecman

Recently, I concluded a month long trial in Kingston, NY, the culmination of a 5-year battle. People say a New York City lawyer, especially a New York construction accident lawyer, can't get results upstate. Hogwash.

It was a difficult case involving two construction workers injured in a 2004 accident while working for a contractor hired by the town to rebuild the sidewalk and curb on the west side of route 9W along an approximately 1000-foot stretch of road in Marlborough, New York.

As the construction workers either crossed, or were crossing the road, depending on which worker you're talking about - and who you believe - they were both hit by a car driving south on 9W. The car driver was using his knees to steer the car because he only had one functioning arm and was using the other to move his sun visor to protect his light sensitive eyes from the sun's glare. Although, he clearly was partly to blame, his inadequate insurance and the Town and their contractor's failure to protect the work area in accordance with New York State labor laws made that the focus of the case, so as to cover both injured men who suffered grievous injuries, including damage to their brains.

Apparently, at that part of the work-site, there were only a few orange "cones" next to the curb to protect the workers from errant vehicles. The larger, more protective drums were located on the north part of the site.

Independent defense witnesses stated that the men were struck as they ran or walked, without looking, across the street, while still in the cars lane of travel. We countered that they were within their work zone and since according to New York State labor laws, workers must be protected within their work zone, the Town and contractor were responsible. Since the materials and trucks were all kept across the street, a flagman was required to help workers cross it. A street within a designated work-zone is not just a street to cross, like one for pedestrians.

More significantly, forensic accident reconstruction showed that, while the other worker was struck in the car lane, my client was struck on the shoulder, having apparently crossed the street. The driver admitted that, after striking the first worker, he pulled onto the shoulder, exactly where the forensics showed my client was, although the driver wouldn't admit striking him.

During my cross examination of the owner of the construction company he admitted that the shoulder, where workers are working, should be protected with drums, not just cones.

Videos of the actual site combined with animation showing properly placed drums, barricades, barriers, and cones, vividly showed the jury how the site could, and should, have been protected to prevent construction accidents.

After more than 20 lay and expert witnesses testified our case settled for $4.525 million plus waiver of a $400,000 lien.

I believe that a key element to our success was my cross-examination of the defense neurologist. He stated that my client was recovered sufficiently enough to work in a sedentary job. However, records revealed that the neurologist had not reviewed the two key CAT scans of the plaintiff's brain taken two and seven weeks post-accident. Having failed to review this medical data, the neurologist had no idea that there was clear evidence of long-term frontal lobe brain damage. Instead, the defense neurologist focused on the initial scans taken immediately post-accident that revealed small bleeds in other parts of the brain. These initial scans did not explain why the plaintiff now acts as incapacitated as he does.

So how did a New York construction accident lawyer succeed upstate? In my cross-examination, I lulled the defense neurologist into a trap by talking about how serious frontal lobe injuries can be and reminding him repeatedly, which he willingly agreed to, that there was no evidence of it here. I then turned our discussion to another person who he testified on behalf of in another case, who did have frontal lobe damage. He described the behavior she exhibited after the accident, which demonstrated the damage to her life, future, and productivity. After letting him go on about his patient and how bad it was, I showed him the scans. He wiggled. He bobbed. He weaved. All, to no avail. He was in too deep to get out, caught flatfooted. My client, like his other client, had similar frontal lobe damage. Their injuries, and the results of their injuries, were too similar to dismiss. This doctor, who I was told repeatedly is a great testifying witness with a record of success got, what even I heard him call, " a whipping".

The family of another construction accident victim was put at ease with a way to live their lives.

I am pleased and proud. Even for a tenacious New York construction accident lawyer like me, this was a tough one.