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David PerecmanDavid's Construction Accident Corner

A Monthly Column from The Perecman Firm’s Founding Partner

Hi, it’s David Perecman, owner of the Perecman Firm PLLC. This is the first of what will be a monthly column, “David’s Corner.” In it, I will talk about new developments in the area of New York construction accidents.

I am going to try to stick to discussing a selection cases that have been decided in the last month, but since this is the first David’s Corner, I want to just go back a bit to earlier this year. This case is William Fabian Hoyos v. NY-1095 Avenue of the Americas, LLC, et al, decided by the Appellate Division, First Department in Manhattan. The decision made by the court involved a progressive and correct interpretation of the law.

To understand what the court decided, you first need to understand that the laws that protect construction workers in New York are powerful and can be used by a construction worker injured on a construction site to get properly compensated for an injury. Under these laws, for example, if an entire new building is being built or a site is being excavated, the owner and general contractor are legally required to provide proper safety devices and a safe place to workers anywhere on the project site.

But what happens if the project a worker is on is only in part of the building? Say they only work on a project that involves five floors in a 25-story building, and they are injured because of an unsafe loading dock on the ground floor that isn’t technically part of their project? Are they considered on the construction site so that they are protected by New York’s laws?

The answer, according to Hoyos, is yes.

While the insurance company’s lawyers argued that was an improper expansion of the law, the appellate court didn’t agree. So, a worker injured on their way into a construction site is covered even if the entrance, where no actual construction is going on, is many floors below. A worker injured in a situation like this might not think they should even bother to call a lawyer, but that’s exactly why you should call. Find out your rights by speaking to an attorney, then make decisions.

By the way, we represented Mr. Hoyos in his case. I was honored to argue the appeal on his behalf.


David on the Law - Podcast

  • Introduction to Construction Accident Law


Matthew McDonnell v. Sandaro Realty, Inc., et al. (October 24, 2018)

This is a useful case for lawyers because it covers a lot of topics, and it also explains a lot for workers to know. The case restated the law for the “scaffold law” or Labor Law 240(1) that when a worker is injured at a construction site because a part of their elevation safety device (ladder, scaffold, hoist, ropes, etc.) broke, failed, collapsed or moved, they are entitled to what we call summary judgment. That means the worker already wins the “who is legally responsible for their accident” part of their case without a trial, and would only have a trial for a jury to determine how much compensation they get – the money decision.

The rest of the case is somewhat technical. The case explains what happens when one of the participants/parties to the lawsuit makes or allows evidence to disappear. Here, it was the broken plank. The court can give them some very stiff penalties that help the other parties to the case, including the worker. The court also spoke about the rules and laws between the contractors. In these cases, the contractor, owners, and sub-contractors try to put the blame on each other since they already lost and probably knew they were going to lose against the plaintiff, the injured worker.

Edisson Paguay v, Cup of Tea, LLC, et al. (October 17, 2018)

You Can't Sue Your Employer

We see the court here saying what we’ve explained before – that you can’t sue your employer. However, you can get workers’ compensation benefits from them. On a construction site, you can sue other parties like the owner and general contractor. They are responsible for the things done, not done, or not done safely, by any contractor, even if the owner or general contractor didn’t see it or know about it. It’s their responsibility to make sure the site is safe.

This case also shows how important good lawyering is. While I can’t be sure what the worker’s lawyers did there, I know they didn’t show the Court that the contractor should have known that it was likely that the roof that partially collapsed would do so; so no summary judgment. That doesn’t mean the worker lost, it only means that that worker will have to win the “who is responsible” part at a trial – unlike the MacDonnell case I mentioned above where the worker won because a scaffold collapsed. The difference is that the court presumes the contractors know safety devices like ladders and scaffolds can break, fall, or cause a worker to fall. Roofs shouldn’t just fall or collapse. But if the worker’s lawyer shows that the contractors should have known the roof could partially collapse, they would win summary judgment too.

Ronald Gillett v. City of New York, et al. (October 24, 2018)

I have handled countless cases over the years where a worker used an A-frame ladder in the closed position because they didn’t have the room to open it, only to have the ladder slide out and cause the worker to suffer a serious injury. Since they don’t really have six-foot straight ladders available, workers, knowing that the boss wants the job done, close and lean the ladder on a wall. Far too often, their bosses are well aware of this dangerous situation.

The Gillett case made it clear that those workers don’t just get their cases thrown out of court. The worker has the right to present their case to a jury.

I should mention that there are also similar “closed A-frame” cases where the worker doesn’t even have to present the case to a jury. The court instead says, if that’s what happened you win. The case is either then settled or you present your case to a jury who only decide how much you get because you already won the case that they are at fault.

Simmons v. City of New York, et al. (October 3, 2018)

Debris Causes Accident

In the Simmons case, a plumber was injured when a compressor fell a few inches off a pallet while being moved. The Court decided that he can sue because the pallet got stuck on debris on the floor.

When a worker comes to my office and tells me how their accident happened, they really don’t care whether they have a case because of Labor Law section 200, 240, or 241(6). They just want a chance to be made whole again.

Here, where the compressor fell three to six inches off the pallet, it was not a significant enough distance for section 240 to apply. That law provides protection for workers injured due to a lack of safety devices to protect them from gravity-related hazards. Typically, it applies when they fall or an object falls on them.

But sometimes an object may only move a small distance downward, but because of its weight causes a lot of harm. One such case decided a few years ago was Kempisty v. 246 Spring Street, LLC, et al. Our firm won that case after an appeal to the Appellate Division. There, a four-ton steel block was being hoisted by a crane and, as soon as it was lifted, it moved sideways catching the heel of Mr. Kempisty, a union dock builder, in between that block and another block on the ground. My theory was that when a block moves like that upon being lifted, it’s because it is swinging to get to its lowest point, like a pendulum. I hired an expert who explained what I knew to the court, that it was from gravity. We won, and the case went on to a trial on damages where the jury awarded close to $8 million and settled after for $7.25 million.

But in this Simmons case they couldn’t show it was gravity, but it was debris on the site and that was enough for the court to allow the case to proceed under Labor Law 241(6).

Gorque Morocho v. Boulevard Gardens Owners Corp., et al. (October 10, 2018)

Construction worker wins summary judgment where worker falls from scaffold without rails.

This was a simple case where a worker fell from a scaffold that had no rails nor any other safety device to prevent them from falling, and they won summary judgment. This case doesn’t discuss it, but workers should know that they don’t have to have a witness to win or even to win summary judgment. It helps but it is not required.

Joseph A. Fedrich v. Granite Building 2, LLC, et al. (October 10, 2018)

A fire marshal who inspecting the sprinklers can bring a suit under the laws protecting construction workers if he trips on debris at the site during ongoing construction.

Jeffrey White v. 31-01 Steinway, LLC, et al. (October 9, 2018)

A worker who uses a ladder unsafely can still win summary judgment.

In these kind of cases, it’s not always easy to explain why the worker can and should win, but they often do. The whole idea of Labor Law 240, the “scaffold law,” is that scaffolds and ladders are dangerous, period. Workers can and will fall. So here, even though the worker set the ladder up sideways and straddled both sides because he was on the sidewalk and he had to keep clear of pedestrians, he won summary judgment. He won because a worker’s partial fault doesn’t mean he loses. The owner and general contractor were required to provide a safer device and are required to make sure the ladder doesn’t fall. They also did not prove that the worker was instructed to use another safer device and refused to do so.

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