This week a wrongful death was suffered by an unfortunate  tenant  in fire in a Yonkers building.  Fire crews battled the fire for several hours prior to getting it under control.  Fires present dangers of both person injury and death to both those who live in buildings and the firefighters who battle them.  Our accident attorneys have extensive experience in handling fire cases both in New York City and in Westchester.

While the insurance industry will claim that fires which are accidental, are not the fault of anybody and just happen. Our New York City and White Plains Personal injury attorneys know better.  While there is the occasional fire that just happens, without negligence, the overwhelming majority of fires are caused by carelessness or negligence. Common examples include electrical fires where the property owner has allowed a super, who is not a licensed electrician to do electrical work or has had an electrician perform work which overloaded the panel or otherwise failed to update wiring.

Another common cause of fires, especially flash fires is the failure of the super or building owner to shut off the gas lines while doing work with flammable or aerosol chemicals in the vicinity of a pilot light. Likewise where electricity is turned on, when there are flammable vapors in an area, that can also cause a fire. Another common problem is empty paint or stain cans with fumes left near a heat source. Whenever there is poor ventilation, combined with flammable vapors and a heat source such as a pilot light or electrical switch, that can spark a fire. In these cases the building owner can be held liable for their negligence and our New York accident lawyers have handled many of these cases.

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Our New York construction accident lawyers have extensive experience in representing construction workers who have sustained personal injuries in worksite accidents.  One of the most frequent questions our construction accident attorneys hear is do I have a case. While most construction workers are familiar with New York’s Ladder or Scaffold Law,  which is known as Labor Law 240. This law generally imposes liability for falls  from unsafe scaffolds or ladders, but there are a number of situations in which a construction worker who is injured on the job can sue for damages.

One of the most comprehensive  New York Laws that protect construction workers and allows New York construction workers to sue for injuries is New York’s Labor Law 241(6), which allows a construction worker to sue for pain and suffering whenever there is a violation of a specific Industrial Code regulation. The New York Industrial Code covers a wide variety of situations in which a  construction worker can suffer an on the job injury.

A brief summary of the regulations is as follows. 12 NYCRR 23-1.16 outlines the requirements for safety belts, tail lines, and lifelines. and a construction worker has the right to sue where safety belts or life lines, are necessary and are not provided or were provided and were defective, such as where they broke or failed to protect the construction worker. Another common scenario  is an injury where debris or other materials fall onto a construction worker and  cause personal injuries.  For example, 12 NYCRR 23-1.7(a)-(h).  requires that suitable overhead protection to be provided to persons normally exposed to falling material in areas they are required to work or pass and this protection extends to persons who are lawfully frequently an area exposed to falling objects.  12 NYCRR section 23-1.7(a)(1)-(2)  applies to areas where a construction worker is injured while working in an area where he was normally exposed to falling material. 12 NYCRR 23-1.7(a) applies where the worker is injured while was working in an area exposed to falling material, for example where demolition of the roof and ceiling was being performed from above the worker and the demolition debris is thrown down or dropped, and the debris hits the worker.  Another regulation under which injured construction workers can sue is 12 NYCRR 23-3.3(b)(3) which requires that walls or chimneys or other parts of a building or structure not be left in an unguarded state such that they may fall, collapse, or be weakened by wind pressure or vibrations. Likewise, 12 NYCRR section 23-1.7(b) pertains to falling hazards when workers are required to work near a hazardous opening and close to an edge.   12 NYCRR section 23-1.7(b)(2) protects workers who were performing bridge or highway overpass construction and therefore does not apply in this matter because plaintiff was performing demolition work at the time of the alleged incident.

Construction continues to be one of the most dangerous professions, and this week, thousands of New York City construction workers assembled to mourn the 30 wrongful deaths and fatilities of their fellow construction  workers who died in construction accidents over the past two years. The construction worker are calling for new legislation to protect them and enforce job safety in an urgent call for action to help prevent future job-site fatalities. Our New York construction accident lawyers support new legislation and increased enforcement for job safety. Across New York  City there have been vocal outcries and protests for greater work place safety on construction sites.   Our New York City and Westchester construction accident lawyers know how devastating a workplace injury can be.

The sad fact is that most work site accidents are preventable if the general contractors  comply with their obligations under existing law.  New York’s Labor Laws provide strict liability under Labor Law 240 for personal injuries from falling objects and for falls caused by defective scaffolds and ladders. However the Courts have consistently sought to erode these protections by engaging in  microscopic analysis of case facts in an effort to find that the laws don’t apply. This effectively narrows the protection that the law provides to New York’s construction workers. Likewise there have been repeated efforts by the Insurance lobby to weaken the existing Labor Laws by making Labor Law 240 subject to offsets for comparative fault, like those found in Labor Law 200 and Labor Law 241.  These legislative attempts come at a time when New York construction accident fatalities are on the rise and in fact New York’s Labor Laws should be strengthened.

A recent study of New York City job sites found that construction worker injuries and deaths have dramatically increased in New York City in the last few years while the number of safety inspections simultaneously dropped. This reduction in oversight and enforcement signifies the needs for stricter laws for worker safety on construction sites.  A reduction in the amount of OSHA inspectors accounted for a twenty seven percent drop in inspection while in 2015 there were 435 fatal injuries in New York State compared to only 128 in 2011, which is still too many. During this time period, safety inspections by the Occupational Safety and Health Administration (OSHA) fell  from 2,722 in 2011 to 1,966 in 2015. In New York City, worker falls, accounted for 59% of all construction accidents, despite the already stringent requirements of Labor Law 240 for safe ladders, scaffolds and life lines.

The first week of February has proven to be a deadly week, with a number of tragic car accidents in the Bronx.  Our New York City wrongful death and car accident lawyers know all to well how dramatically a car accident can affect someone’s life.

An off-duty New York City Police Officer suffered an unfortunate wrongful death in a car accident in the Bronx this week. The passenger in the vehicle,who was a housing officer,  also suffered serious personal injuries.  The officer’s car flipped over and then caught fire in a traffic circle in the Pelham Bay section of the Bronx.  While, the  NYPD’s highway investigation unit is investigating to determine if the car was speeding, that is usually the most common cause of a vehicle flipping over, although the design of the vehicle itself may be a contributing factor. There have been a number of successful products liability lawsuits against car manufacturer’s for negligent design where the car is prone to tip over at foreseeable speeds. Usually, if the vehicle is too top heavy or is tall, but not wide, the design can contribute to a roll over type of accident during a turning maneuver.

In another motor vehicle accident, a two-car crash at occurred at the intersection of Colgate and Westchester avenues, in the Bronx, which caused one of the vehicles to collide with and get stuck under the side of a school bus. Thankfully  all of the children are reported to have not suffered any injuries.

The federal government’s Occupational  Safety and Health Administration is fining the Tappan Zee Constructors more than $12,000 for last July’s crane collapse. In particular OSHA found that the contractors failed to keep a safe work site, and exposed employees to the risk of injury caused by the falling crane.  The incident occurred when a crane, which was  driving piles for the new Tappan Zee Bridge’s Westchester-bound bridge collapsed across all lanes of the current bridge. While cranes collapses in Manhattan have become somewhat of an epidemic. there are only a few Westchester maritime construction accidents, who are familiar with the interplay of maritime law and New York construction law.   The findings of the inspectors were that the vibratory hammers, which the construction crews were using to extract and pre-position a partially driven pile came loose unexpectedly and that the capacity of the crane was lower than required. Obviously, had inspections been diligently carried out during the work, this accident would not have happened and the fast pace, which the workers on the Tappan Zee Bridge are being required to work at no doubt was a contributing cause of the crane collapse.

While thankfully, there were no fatalities or major injuries in this accident, all commuters and construction workers on this site need to remember that if an injury occurs on this work site, a notice of claim needs to be filed within 90 days, and also a Notice of Intent to make claim should be filed with the Attorney General’s office, as the Court of Claims is designated as the proper venue for the site owner, but not for the contractors. Indeed any claim involving an accident on the bridge is a complex network  of litigation. From our White Plains law office, our construction accident lawyers are a short drive from the Tappan Zee project.

Also, most of the work place accidents on the bridge, involve a mix of Federal and State Law. For example, most workers are likely covered under the Federal Longshore Habor Workers Compensation Act, and not the New York State system, but can sue for violations of New York’s Labor Laws for personal injuries or fatalities sustained. Likewise, those who work on supply ships that deliver materials are Jones Act seaman and have Federal remedies such as claims for unseaworthiness, claims for negligence under the Jones Act and maintenance and cure. These federal remedies allow for living expenses, medical care, lost wages and compensatory damages for pain and suffering, as well as future damages for lost earning potential.  For an analysis of the various laws that apply to a given work injury, an injured worker should consult with an experienced maritime construction accident, since the remedies  that a given worker is entitled to, depends on their employee status, the type of work they were performing, their exposure to the water and time spent aboard vessels.  While maritime accidents are not frequent in Westchester, with this bridge project, they are becoming more frequent and our lawyers experience in handling maritime accidents in New York City is proving to be valuable.

Our New  York City police brutality lawyers have handled numerous cases for inmates who were mistreated at Rikers Islands and suffered injuries, both by guards and other inmates. While cover ups and fabricated stories to justify guards behaviors are common place, Court papers this week exposed a new low.City investigators who were investigating an inmate’s sexual assault allegations on Rikers Island lost track of key biological evidence for four days before it surfaced with signs of tampering.

The inmate claims a Rikers correction officer sexually abused her in May 2013 by forcing her to perform oral sex on him and says that she put his semen on her pants after performing the sex actand then turned it over to city investigators as evidence.  While a Department of Correction investigator collected the woman’s pants, the employee who ultimately took custody of the pants could not account for the garment’s whereabouts until for four days when the New York City Police Department received the clothing, After the pants went missing, the city Medical Examiner tested the pants after the NYPD received them and didn’t find any semen. Of course the lack of semen was the reason that the police and prosecutors declined to prosecute the officer.  However, when the victims personal injury lawyers had the pants tested by an independent laboratory, the independent lab found  results which revealed the presence of male DNA, on the left, right and crotch areas of the pants, which was consistent with the pants being washed before being tested. Our New York City inmate assault attorneys often retain independent experts in these types of cases and the results can be shocking.

While sexual relationships between inmates and guards are not a new phenomena, it must be remembered that under New York law, an inmate cannot legally consent to sexual activity, so any sexual act between a guard and an inmate is rape. The fundamental underlying rationale is the inherently coercive environment that a jail is and no one is really free to refuse. Despite the clear law that is intended to protect inmates, the practice of investigating criminal behavior by guards and abuses in general at prisons, especially at Rikers is far from ideal. But in this case, evidence tampering to presumably protect the guard from criminal prosecution is a new low. In this case, the guard has not been criminally charges and in fact, even though another  woman is suing him for sexual abuse, he is still employed as a corrections officer at Rikers Island.  This of course begs the question, how many times does a corrections officer have to break the law before he will be charged and how many more women need to be raped before he is prosecuted, or at least removed from his post.

One of the most common question that comes up in New York sporting accident cases is whether a defendant can be held liable for a dangerous condition or other negligence in a sporting activity or was the injury caused by  a danger that is inherent in the game.  Under New York law, there is a  duty to exercise reasonable care which requires  owner sand operators of recreational areas, to protect the public from foreseeable risks of harm. But the law in New York is equally clear and observes the maxim that landowners ,are not  insurer of the safety of those using their property for recreational purposes, and the mere happening of an accident does not render a landowner liable.

The first concept that often comes up in sporting or recreational activity injuries is the assumption of risk doctrine. Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity. In other words, tisks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation, like physical contact in football or being hit by a ball in baseball.  In these cases there is no obligation to warn of hazards associated with activities, which are obvious. When a person assumes the risk of participating in a sporting event, the landowner is relieved of legal duty to the participants; and cannot be charged with negligence. As long as the other person’s conduct does not unreasonably increase the risks assumed by the plaintiff, the landowner will be shielded by the doctrine of primary assumption of risk.  The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport.  In other words, If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine of assumption of risk applies.

But this doctrine does have  limits.  The Courts have held that it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities.  In one case the  Court held that the plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, ” ‘cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because they participated in the activity of bicycling  In another case the Court held that the assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders”

There is no question that the relationship between the community and police has deteriorated as a result of recent use of force cases.  Our New York police brutality lawyers know that whether the use of deadly force is deemed justified or unjustified, the gap between police and public seems to grow. Too often cases which are rules justified, really did cross the line and the failure to punish heavy handed officers sends the message that they are above the law and will not be punished, which in turn leads to more excessive force.  In Chicago, multiple excessive force complaints, coupled with public outcry and protest, have lead to an extensive investigation into the city’s police department and the circumstances surrounding different use of force cases.
A year-long investigation into the Chicago Police Department revealed “systematic” violations of the civil rights of Chicago citizens. The investigation uncovered multiple deadly force cases in which the individual posed no threat to police, copious amounts of evidence suggesting the unlawful use of less than lethal force, and racially discriminatory behavior.
In one use of deadly force case, a video captured a man shot in the back after a foot pursuit. The man was determined to not have been a threat yet the officer fired sixteen rounds at the man, killing him. A dashboard camera captured the same officer standing over the man and firing off three rounds into the man’s back. The officer fabricated his report claiming that the man “charged with an apparent firearm,” which was quickly disputed by the video evidence. Our New York lawyers have long fought against fabricated cases which officers use contrived evidence to justify their behavior.

In a recent case, our White Plains Lawyer, Michael Joseph won a summary judgment motion for a client who backed out of a parking spot and was hit by another vehicle. Summary judgment is used to expedite a case when there is no dispute as to the important facts of the case. When there are no issues of fact, it can be determined which party is entitled to judgment without having to proceed to trial. Michael Joseph is considered to be one of the most experienced car accident lawyers in Westchester and has won numerous summary judgment decisions in favor of those injured in car and truck accidents.  Summary judgment is a vehicle by which  our personal injury attorneys cut through the red tape and delay tactics that the insurance company lawyers use to try and deny justice to our clients. It is an expedited way for an accident victim to get a decision as to who is at fault and puts the insurance companies on their heels.
Our client and the Defendant were in a store parking lot and parked in spaces directly across from each other. Our client backed out, and then came to a complete stop to switch his car from reverse to drive. While our client was putting his car into gear the Defendant backed out of her spot and hit his car. The Defendant, in her affidavit, stated that she checked her mirrors and did not see any cars so she backed up until she felt the impact of her car hitting our client’s.
It could be argued that what the Defendant stated in her affidavit made her seem as though she is a cautious driver, however, this was not the prevailing argument and it was picked apart when Attorney Joseph exploited what the Defendant failed to do. New York Vehicle and Traffic Law § 1211(a) provides that a driver “shall not back [a vehicle] unless such movement can be made safely.” To reverse a vehicle safely a driver must continually look in their mirrors while backing. Since the defendant failed to state that they were looking as they were reversing, they failed to overcome the Plaintiff’s proof that she was at fault.

Our New York City car accident attorneys stay up on the current events to which the law applies and which involve the application of personal injury law in New York.

This week a driver who caused a multi car accident on the major deegan in the Bronx, was arrested for aggravated unlicensed operation of a motor vehicle. The driver who was driving with a suspended license. Our car accident lawyers know all too well that when irresponsible drivers get behind the wheel, it can seriously affect the lives of others. In this case, five people were hospitalized following the accident.

Drinking among police officers who then drive home has been a problem which has reached epidemic levels. Recently an Eaastchester Sergeant who committed suicide was discovered to have been involved in a hit and run accident after a night out drinking at a notorious cop bar. The accident left an elderly woman with injuries that required surgery and extensive hospitalization. This week it was determined that Yonkers Detective Frank Fernandez who was involved in a car accident with a fire engine, was highly intoxicated at the time. More specifically the detective, who crossed into on coming traffic and crashed into the fire truck, had a blood alcohol level of . 22, which is almost three times the legal limit. The officer also suffered a fatality and was killed in the crash. Apparently, the officer was at a local Yonkers bar. In a case such as this, the bar would be liable to those injured and even the officer’s family, could sue the bar for serving an already intoxicated individual under New York’s dram shop act. Serving an already intoxicated person is a violation of New York’s alcohol beverage and control law. Our Westchester drunk driving accident lawyers have successfully prosecuted these dram shop cases in drunk driving accidents.