Sunday, April 26, 2009

Personal Injury - Construction Accident Attorney [Falling Workers And Objects]

Construction accident litigation was one of my one of my first niche practice areas as a lawyer.  I have handled numerous trials and appeals, and have published two articles on the topic.

New York State passed a series of laws in the nineteenth century, with the emergence of skyscrapers and other major construction projects, designed to ensure construction site safety. Those laws still protect workers today.

Under New York's construction safety laws, workers who are exposed to gravity related risks should always be provided with proper protective devices. New York's Labor Law 240 (1) specifically requires contractors and property owners to provide workers with “proper protection” against gravity related hazards, such as falling from a height or being struck by a falling object.

In pertinent part, the statute reads:

All contractors and owners and their agents, except owners of one and

two-family dwellings who contract for but do not direct or control the
work, 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
Statutes such as Labor Law 240(1) offer two major benefits for construction workers. First, they encourage work-site safety by motivating owners and general contractors (through awareness of responsbility and fear of liability) to strictly oversee the safety practices of their subcontractors.

Second, when workers are injured, these laws provide injured workers with an opportunity to hire a lawyer and obtain compensation for their injuries through a personal injury lawsuit. In general, workers who are injured on the job are entitled to Worker's Compensation, but the trade-off for Worker's Compensation is that injured workers cannot sue their employer for work-related injuries. By placing ultimate responsibility for worksite safety on the owners and general contractors, New York's laws provide injured workers with a responsible (and usually well insured) party other than their employer whom they may sue for damages in addition to Worker's Compensation.

Although the statute appears straight-forward (the relevant portion contains less-than 100 words), interpreting the precise language of Labor Law 240 is one of the most frequently and aggressively litigated issues in the New York Courts. Defenses include, for example, that owners of one- or two-family dwellings may be exempt from liability; the statute only protects certain enumerated activities, not routine maintenance; not every fall qualifies as a gravity-related risk; and an injured worker may not recover if they are entirely at fault for their own injuries.

Below is a list of the leading interpretive cases from the New York Court of Appeals, with links to each decision.


Strangio v Sevenson Envtl. Servs., Inc.15 N.Y.3d 914, 913 N.Y.S.2d 639 (2010)(triable issue of fact as to whether defendant provided "proper protection.")

Belding v Verizon N.Y., Inc.14 N.Y.3d 751, 898 N.Y.S.2d 539 (2010) (Applying bomb blast film to windows counts as a "significant alteration").  

Gallagher v New York Post14 N.Y.3d 83, 896 N.Y.S.2d 732 (2010)(summary judgment granted to plaintiff despite testimony from general contractor that safety harnesses were available, where there was no evidence that the injured worker knew where the harnesses were or had been instructed to use them).  

Holly v County of Chautauqua13 N.Y.3d 931, 895 N.Y.S.2d 308 (2010)(question of fact as to whether scaffolding provided "proper protection.")

Runner v. New York Stock Exchange13 N.Y.3d 599 (2009)(where plaintiff was required to hold one end of a rope, acting as a counterweight while an object was lowered, and was pulled up into the make-shift hoist, injuring his hands, Labor Law 240(1) was applicable because  "a pulley or hoist should have been used... the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.")

Quattrocchi v F.J. Sciame Constr. Corp , 11 NY3d 757 (2008)(wooden planks that were used as a make-shift shelf above a door frame and fell, striking a worker, constituted the type of falling object risk that the statute protects against).

Sanatass v Consolidated Inv. Co., Inc., 10 N.Y.3d 333 (2008) (the term "owner" includes an out of possession landlord)

Broggy v Rockefeller Group, Inc., 8 N.Y.3d 675 (2007)(although it does not cover "routine household window washing," "cleaning" is its own category under the statute; it does not need to be connected with a construction site and applies equally to interior and exterior cleaning).

Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550 (2006)(injured worker was entirely at fault for his own injuries where a ladder of the proper height was available to him, but he chose instead to stand on the top-cap of a short ladder).

Outar v. City of New York, 5 N.Y.3d 731 (2005)(a dolly that rolls off a ledge and strikes a worker is the type of falling object risk that the statute protects against).

Montgomery v. Federal Express Corp., 4 N.Y.3d 805 (2005)(Plaintiff was the sole proximate cause of his own injuries where he chose to use an upside-down bucket rather than an available ladder).

Stejskal v Simons, 3 NY3d 628 (2004)(one- or two-family dwelling exception applies where the "purpose of the construction" was to convert a multi-family dwelling into a one family dwelling).

Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280 (2003). (If an injured worker was somewhat at fault for their own injuries, but not entirely at fault, they are nonetheless entitled to be fully compensated for those injuries. “Contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury… Section 240 (1) is, therefore, an exception to CPLR 1411, which recognizes contributory negligence as a defense in personal injury actions.”)

Panek v County of Albany, 99 N.Y.2d. 452, 458 (2003)(Removing a large air conditioning units two weeks before a demolition project was not part of or ancillary to the demolition, but was a "significant alteration" which is also an enumerated activity under the statute).

Esposito v. N.Y. City Indus. Dev. Agency, 1 N.Y.3d 526, 526 (2003)(routine maintenance for normal "wear and tear" is not a significant alteration to which the statute applies).

Narducci v. Manhassett Bay, 96 N.Y.2d 259, 267 (2001)(a falling window pane that was unrelated to the construction is not a falling object risk that is protected by the statute).

Bond v. York Hunter Constr., Inc., 95 N.Y.2d. 883, 885 (2000)(slipping while climbing out of a construction vehicle is not an elevation related risk calling for a protective device).

Melo v. Consolidated Edison Co., 92 N.Y.2d. 909 (1998)(§ 240 has “historically been construed in the context of workers injured as a result of inadequate or missing safety equipment at elevated work sites ... in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites”)

Weininger v Hagedorn & Co., 91 N.Y.2d. 958, 960 (1998)(Running computer and telephone wires constitute a significant alteration, and there was a question of fact as to whether plaintiff, who fell while trying to forcibly yank a cable wire through a hole, was the sole proximate cause of his own injuries).

Joblon v. Solow, 91 N.Y.2d., 457 (1998)(“Defining [the terms of labor law 240(1)] with precision… is a highly elusive goal”... installing a built-in wall clock is a significant alteration).

Brown v. Christopher St. Owners Corp., 87 N.Y.2d. 938 (1996)(“the ‘cleaning’ encompassed under the statute does not include the routine, household window washing… [but does include] the cleaning of all the windows of a large, nonresidential structure such as a school")

Khela v. Neiger, 85 N.Y.2d 333 (1995)(whether a property is a one- or two-family is determined by the site and purpose of the work being performed).

Mandelos v. Karavasidis, 86 N.Y.2d 767 (1995)(there was a question of fact for a jury as to whether two neighboring yet jointly owned two-family dwellings were entitled to the one- or two-family dwelling exception, both due to the occupancy and the fact that the construction may have enhanced commercial, rather than residential, usage)

Misseritti v. Mark IV Constr. Co., 6 N.Y.2d 487, 491 (1995) (a wall that collapses after having been finished is not the type or risk protected against by the statute because Labor Law 240(1) applies to during the course of construction, not to gravity related risks from a completed structure).

Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d. 494 (1993)(back strain caused by repeatedly stretching is not a gravity-related risk).

Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (1991)(the risk of stepping in a bucket of oil is not a gravity-related risk and thus not protected against by the statute)

Van Amerogen v Donnini, 78 N.Y.2d 880, 880 (1991)( “The [one- or two-family dwelling] exception may be extended only so far as statutory language warrants, and all doubts should be resolved in favor of statute's general provision rather than exception”).


NYS Deptartment of Labor, New York State Industrial Code, "Protection in Construction, Demolition, and Excavation Operations."

Occupational Safety and Health Adminstration, OSHA

NYC Department of Buildings, Construction Safety

NYC Occupational Safety and Health Non-Profit, Homepage

New York State Trial Lawyer's Association, Labor Law 240(1) Myths

Saturday, April 25, 2009

Tenant Issues: Attorneys Fees, Late Fees, And The Warranty of Habitability

I do not regularly practice landlord-tenant law, and I would strongly recommend that anyone faced with a serious landlord-tenant issue find an attorney who practices in this area. If you are facing eviction, and have limited income, NYC Legal Services and Nassau/Suffolk Law Services may be able to help.

The landlord-tenant relationship is easily susceptible to over-reaching, and the purpose of this post is to help tenants understand their legal rights. Just as people hope that wealth will trickle-down in a good economy, you can be sure that financial burden and debt will pour down upon those who are least able to handle it in a bad economy.

Every landlord-tenant court is different, and the City courts have a reputation for being tenant-friendly. In suburban communities, however, you will more than likely be faced with a small-town judge, before whom the same attorneys, representing the same landlords, constantly appear. I do not mean to imply that these courts are bias or corrupt, but the local landlord tenant court is undeniably the landlord's home-turf.

Below is a discussion of three frequently occurring issues in landlord-tenant cases: attorneys fees, late fees, and the warranty of habitability. 


In a landlord-tenant proceeding, regardless of the terms of the lease, only the prevailing party is entitled to costs and attorneys fees. To be considered the “prevailing party,” a party must be successful “with respect to the central relief sought.” Babylon Village Equities v. Mitchell, 11 Misc 3d 84, 816 NYS2d 279 (App Term 2nd Dep't 2006).

One tactic that is often used by landlords with in-house attorneys is to quickly bring eviction actions, then discontinue them based upon partial pament, and charge the tenant a court cost or attorneys fee on their next bill. This practice is extremely profitable for the landlord, but makes it much more difficult for the tenant to catch-up on rent.

This practice is improper, and you may be entitled to a refund of those fees or a set-off against the amount the landlord is claiming against you. Babylon Village Equities v. Mitchell, 11 Misc.3d 84, 816 N.Y.S.2d 279 (App. Term., 2d Dept., 2006); ATM Four LLC v. Demezier, 2 Misc.3d 1132(A), 2009 N.Y. Slip Op. 50406(U) (Nassau County, 1st Dist., March 6, 2009); Clinton Realty, LLC v. Tarra, 15 Misc.3d 1118(A), 839 N.Y.S.2d 432 (Nassau County Dist. Ct., 2007)(Finding that Petitioner is not entitled to court costs and attorneys fees where tenant voluntarily pays back rent). The catch, however, is that an improper fee, by itself, will not stop an eviction if some rent is legitimately owed; if you are behind, they have a right to evict you.


Often landlords will charge a late fee equal to a percentage of a months rent, sometimes 10% or more. Unreasonable fees, however, violate public policy. As one court explained:
The underlying issue is the enforceability of a rent surcharge of 5% per month… the charge, while not technically interest, is at the rate of 60% a year. Examined in the light of the public policy expressed in section 190.40 of the Penal Law, which makes an interest charge of more than 25% a criminal offense, we find the charge unreasonable and confiscatory in nature and therefore unenforceable.
943 Lexington Avenue, Inc. v Niarchos, 83 Misc 2d 803, 373 NYS2d 787 (App. Term. 1st Dept. 1975). See also Dashnaw v. Shiflett, 10 Misc. 3d 1051A (App Term 1st Dept. 2005)($5 per day on $475 rent, totalling 26.3%, held unconscionable).


The warranty of habitability, basically, means that your landlord needs to provide decent living conditions. Issues such as a lack of heat, hot water, or mold can give rise to a claim under the breach of the warranty of habitability, which may result in a rent abatement. You need to prove that the issue makes your apartment, essentially, unliveable, and that you have given the landlord notice of the problem and an opportunity to correct it.

There are three guarantees within the warranty of habitability, which are that the premises: (1) is not dangerous to life, health or safety; (2) is habitable and usable; and (3) is in accord with reasonable expectations of the parties. Solow v. Wellner, 6 N.Y.2d 582, 635 N.Y.S.2d 132 (1995) citing Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S.2d 310 (1979). See also Tavarez v. Wearn, 2005 NY Slip Op 51236U, 4, 8 Misc. 3d 1022A, 803 N.Y.S.2d 21 (Kings County Civ. Ct. 2005).

Saturday, April 18, 2009

New York Motion Practice

Below are some thoughts on New York motion practice.  


A motion is made whenever you want to request that the Court issue an order.  Written motions can be made through either a Notice of Motion or Order to Show Cause.  

A motion on notice is the "standard" form for a motion.  The party making the motion chooses a return date and serves their adversary with notice that they will be making a motion on a particular date, in a particular courtroom, as well as any papers will be submited in support of the motion.  At a minimum, you need to serve your papers eight days in advance of the return date, bearing in mind that service by regular mail is not "compete" until five days after mailing. (CPLR 2214-2215).  Personally, I try to use methods of service that are completed immediately (e-mail or fax) whenever possible.  

The second method for making a motion, an Order to Show Cause, involves immediate Court intervention.  The moving party goes to the court with their motion papers (usually at the court's "ex-parte" part), and obtains an Order requiring the opposing party to appear on a certain date and time before a judge to oppose the motion.  Orders to Show Cause are more burdensome for the judges involved, and so should not be used unless there is good reason.  

There are two main reasons you would want to proceed by Order to Show Cause rather than Notice of Motion.  First, the Court sets the timeframe for the motion to be heard, so a short and specific schedule can be ordered and adjournments are more difficult to obtain.  Second, (provided the other party was provided with at least some notice, such as a phone call the day before, less such notice would be impractical), a judge can order immediate relief, such as a restraining order, injunction, or similar relief.


The Notice of Motion or Proposed Order to Show cause acts as a cover page to the main motion papers. 

The affirmation/affidavit is the main document in your motion papers.  It is the document to which you annex your exhibits and in which you make your written argument.  

Like every formal document submitted to a court, the affirmation begins with a caption, which should be clean and neat.  The rules are set forth in C.P.L.R. 2101, which says, essentially, each document should begin with a caption listing the name of the Court, the parties (all parties should be listed in summonses, complaints, and judgments; in other papers you only need the first-named parties and a notation such as "et al."), the index number, and a title identifying the nature of the document.  

New York State courts do not require memoranda of law.  Instead, they use what is called a "speaking affirmation."  Attorneys are permitted to submit both their legal and factual arguments in an affirmation.  An attorney's affirmation is not evidence, and factual statments must be supported by exhibits attached to the motion papers.  

Pro-se litigant (even if they are also attorneys), must use an affidavit instead of an affirmation.  An affidavit must be notarized, but the factual statements contained in an affidavit are considered evidence (provided the party making the affidavit has direct knowledge).  Supporting exhibits, of course, still help.  

In the Supreme Court, filing a motion costs $45; there is no fee in the NYC Civil Court or local District Courts.  There is no fee for responding to a motion.  You can find a form motion (formatted for NYC Civil Court), as well as other helpful forms, here.  

Below the caption, the party making the affirmation or affidavit identifies themselves.  An old rule of practice is that the writer's name is listed in all caps.  As an attorney, I would write "SCOTT J. KREPPEIN, an attorney duly admitted to practice before this Court, affirms the following under penalty of perjury."  If I were a pro-se litigant, the affidavit would begin "SCOTT J. KREPPEIN, being duly sworn, deposes and states."

After this first identification, every paragraph should be numbered.  In the first or first few numbered paragraphs, the writer informs the court of their relationship to the litigation, what the submission is for, and what the papers will argue.  For example, a pro se litigant submitting an affidavit in support of a motion would write:  I am the plaintiff in the above action, and make this affidavit based upon my own knowledge.  This affidavit is respectfully submitted in support of my motion for ABC, which should be granted because of X, Y and Z.  

These first paragraphs should provide a readable roadmap for your submission.  If you have four points, tell the court that you have four arguments and list them.  You can use bullets and sub-paragraphs if necessary.  If you haven't convinced the judge that you should win by the second page of your submission, then you haven't done your job right.  


The fact section should include four things: facts essential to your legal points; facts your adversary will undoubtedly rely on; enough procedural history and background to provide context; and a sparing dose of humanization.   Organization is key, and your facts need not be in chronological order.  You need to decide how to best present your case, and each case is different.  Whatever you do, you should get to the point early.  It is often good practice to start off with the pivotal event (the injury, the manner in which the contract was breached, etc.).  

You should have topic sentences.  Dates and witness names are not topics.  If you reference a date, it should only be because it is an important fact.  If you are referencing dates because of the time span between them, state the timespan, not just the date.  Don't make the court do math, they don't like that. 

Your statement of facts should be crafted as a coherent narrative.  Tell your story.  You do not want a balanced presentation: you want a coherant narrative that supports your side.  The narrative must be truthful, but don't make your adversaries' arguments for them.  

That said, there are two reasons to include adverse facts: either you want to prevent the shock of having not disclosed them, or you want to pre-emptively deflate your opponent's argument.  Dealing with a fact that hurts you is always a judgment call.  

Sympathetic but irrelevant facts should be used sparingly, and with decorum and respect for the judge's intelligent.  A brief statement of a plaintiff's injuries is appropriate, such as "P fell and suffered a broken arm."  A long, drawn out plea for sympathy is not. 


The discussion is your legal argument.  In law school, they teach you to make your arguments in four steps: identify the issue (and how it should be resolved), identify the applicable legal rule, apply the legal rule, and restate your conclusion.  My prior "resources" post provides links to a free case law research database, important statutes, and several other useful links.  


Motion papers conclude with a request for relief, which generally begins with something to the effect of "Wherefore, it is respectfully requested that an Order be issued...." and ends with "together with such other and further relief as is deemed just and proper."  In this paragraph, you should tell the Court exactly what you want it to order. 


In some courts, you are expected to appear on the return date prepared to argue; in others, all motions are done on submission.  If you are not sure about the procedures in the venue where your motion will be filed, you should check with that court's clerk, motion support office, or pro se office.   

Generally, judges are supposed to issue an Order deciding the motion within 60 days of when the motion is fully submitted.  (C.P.L.R. 2219).  In practice, however, a judge may take longer to issue a decision.  

Once an Order is issued, it should be served with notice of entry upon the other party, which starts the clock for when an appeal can be taken (30 days under CPLR 5513), and may have other significance.



How To Argue An Appeal
Notice of Entry and Notice of Appeal

Sunday, April 5, 2009

Long Island Legal News: March 2009

Financial Fraud

* Charles Silveira, 38, of Seaford, has filed a lawsuit in New Jersey claiming that he was swindled out of $250,000 by a psychic. (, Washington Post, March 9, 2009)

* Dunn & Bradstreet, the business information firm, has been sued for misleading the public about Agape World. (Newsday, March 9, 2009)

* A former Suffolk County legislator and others have been indicted for a Westhampton mortgage fraud scheme. (NY POST)

* Long Island Business News caught up in fraud suit between small business associations. (Exception Magazine, March 12, 2009)

* Judge freezes Madoff’s brother’s assets. (Forbes).

* Bank of America has been implicated in aiding the Agape World Ponzi scheme. (NY Times).

Legal Profession

* Appellate Division appointments, (Media Newswire, March 9, 2009)

* Ex-partner allowed to keep buyout compensation. (The American Lawyer,March 9, 2009)

* Long Island civil lawsuits filings have shown a 25% increase so far this year when compared to last. (LIBN)(Riverhead News)(Riverhead News)


* African-American man beaten in Nassau County bodega, authorities are considering charging a hate crime. (Newsday, March 12, 2009)

* According to a study by the Syosset-based group Erase Racism, Long Island is the third most racist suburban region in the Country. (NY Times).

Government and Politics

* Former Nassau County Parks and Recreation worker wins $1 Million for political firing. (Newsday, March 11, 2009) (and here).

* Suffolk County sues to recover ownership of homeless shelters (Newsday, March 12, 2009).

* Suffolk County police sued for wrongful death by drug suspect who was allegedly beaten to death with flashlights. (Newsday, March 12, 2009)

* “Emergency Responders Law Takes Wrong Turn,” (Elmira Star-Gazette, March 8, 2009),

* Suffolk County lays off hundreds of workers. (Newsday, March 24, 2009).

* A state court judge has allowed NYC’s suit against Long Island’s Poospatuck Indian tribe, to force them to start collecting sales tax on cigarettes, to go forward. (NY 1, March 16, 2009;

* Martin Tankleff has sued Suffolk County (Newsday)(Newsday)


* Following Suffolk County’s ban on BPA in sippy cups and baby bottles due to possible harmful side-effects of the plastic additive seeping into food, the nation’s top six baby bottle manufacturers have agreed to stop using the additive in manufacturing nationwide. (Living the Science, CA, March 9, 2009).

* Suffolk County arrests in illegal reptile trade. (Rochester Democrat & Chronicle)

Real Estate

* Trump owes rent on Jones Beach site, (Newsday, March 9, 2009).

* East end real estate industry accused of anti-competitive practices. (27 East, March 17, 2009).

Sex and Scandal

* The State is contemplating a bill that would allow victims of childhood sexual abuse, whose cases would otherwise be time barred, one year to bring any such claims, and would extend that limitations period on future cases to 10 years from the child’s 18th birthday. The diocese of Rockville Center has opposed the bill, arguing that the flood of sex abuse cases might bankrupt the diocese. (Newsday, March 14, 2009).

* Town of Riverhead has filed a lawsuit to stop a sex offender trailer park from being placed there. (27 East)


* 10 Nurses who were criminally prosecuted by the Suffolk County District Attorneys office in retaliation for a labor strike that left a nursing home understaffed have filed a notice of claim against the county, apparently preparing for a lawsuit. (Newsday).

* A long island man has sued his former employer, claiming he was pressured to sleep with a client. (NY Post, March 15, 2009).

* Adelphi University has settled a sex discrimination lawsuit alleging that they unfairly paid women less than men for the same work. (Chronicle of Higher Education).


* Long Island Students file defamation suit against former classmates and Facebook. (Student Press Law Center, VA, March 11, 2009), and here.