Articles Posted in Premises Liability

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This morning, a terrible tragedy occurred as a crane collapsed in TriBeCa around 8:30 A.M. Early reports indicate that at least one person has been fatally injured, and two others have sustained serious injuries.

The massive crane, operated by Bay Crane, now lays down the path of Worth Street stretching from West Broadway to Church Street.

It appears the crane was working on 60 Hudson Street, a longtime industrial building undergoing renovation to luxury apartments. The crane was parked on Worth Street.

This busy lower Manhattan neighborhood is home to New York Law School, and various other State and City offices and agencies, as well as many private businesses.

The impact crushed many cars along the street and has caused a water main break and a possible gas main break. Emergency crews are on site, along with City and Con Edison officials. The gas lines are being checked, and the stability of the buildings struck by the crane is being checked by the Department of Buildings.

Unfortunately, this is not the first major crane collapse in the New York City area to occur in recent times. With the vast expansion and revitalization of certain neighborhoods, such as TriBeCa, the sight of cranes climbing as high as 20 stories in the sky is common.

Those who are responsible for the placement, operation, management, inspection and control of these cranes must uphold their duty to ensure that these types of tragedies don’t occur.

Leav & Steinberg has successfully litigated and obtained full and fair compensation injuries sustained in a crane collapse which occurred in New York City in 2008. Cases such as this require early representation to ensure that rights are protected. It is critical to seek legal counsel early on to protect a potential claim.

Sources

http://abc7ny.com/news/crane-collapses-in-tribeca;-1-dead-2-seriously-injured/1188104/

http://newyork.cbslocal.com/2016/02/05/lower-manhattan-crane-collapse/

http://pix11.com/2016/02/05/breaking-crane-falls-on-cars-in-financial-district/

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As a trial attorney I am often contacted by client’s who request my opinion on whether their chid’s accident in a playground was due to negligence. They ask questions like, was there enough supervision? Did the children have enough instruction on how to use the equipment? Aren’t monkey bars dangerous generally?

Often the answer results in my firm not pursuing the case. Kids do get hurt. Sometime’s accidents happen. However, recently I was contacted by a wonderfully nice family and presented with an interesting case.

Their six year old son who was in first grade at the time, had fallen off a piece of equipment during school in the playground. He described the equipment as monkey bars. In fact, the school incident report also stated he fell from the monkey bars. He told me he was jumping off and landed hard on his elbow on the mat below. He had a fracture to his elbow that would require percutaneous pinning which is when a doctor places a pin through the skin to allow the bone to heal. The pin is removed a few weeks later when the bone has calcified.

At first I advised the family, that based on those facts it would seem very difficult if not impossible to bring a case against the school for negligence. Kids play, there are monkey bars and falling from them, absent a design or construction defect would likely not be a case. Especially in Staten Island, a very conservative county.

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Appeals coming to fruition now were in the making long before 2015 arrived and the New York Appellate Courts have already decided thirty or so snow and ice cases this year. Many more will be coming. As we prepare for the next big storm that’s coming, let’s examine some general legal issues. For purposes of this blog, we will stick to the basics and not assess each and every fact in detail (quite unlike what this firm does when prosecuting real cases). We will also point out the major caveat that each and every case is unique. A case’s existence and outcome will vary based on a multitude of factors that will not be fully explained in this blog.

Envision this. You are a young attorney who is preparing for trial. On your way to the office last Saturday morning, you slip on the marble floor of your large office building lobby, sustaining serious injuries. Unfortunately for your injuries, there is no case. A vestibule floor that was inherently slippery due to its smoothness is not an actionable defect. See e.g. Beceren v. Joan Realty, LLC, 2015 NY Slip Op 00324 (2nd Dept. 2015).

Next scenario. It’s still Saturday. You receive a surprise flower delivery, but since your office is technically closed and the firm’s secretary is not working, you go down to the lobby to get it. Unbeknownst to you, before you arrive on the scene, the delivery man spills water from the vase onto the floor. You slip on it, sustaining serious injuries. Here, you could establish fault of the flower delivery man and/or the building officials if you can show that they created the spill or had sufficient notice of the wet condition that caused the slip and reasonable time to clean and/or warn. See e.g. Weiss v. Gerard Owners Corp., 22 A.D.3d 406, 803 N.Y.S.2d 51 (1st Dept. 2005).

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Leav & Steinberg, LLP often receives calls from people who trip and fall on a city sidewalk and are injured. One would assume since it is a city sidewalk the city would be solely responsible for the maintenance and repair of the sidewalks. However this is not always the case.

In 2008 a law was passed by the NYC counsel shifting the responsibility to maintain and repair sidewalks to the building owner in most instances. The city is now only responsible to maintain and repair sidewalks adjacent to 1, 2 or 3 family, owner occupied houses. So if you fall on a sidewalk adjacent to a commercial building or high rise Apartment the building owners insurance company is responsible to compensate you for your injuries. However, it is very important to call Leav & Steinberg, LLP immediately after any trip and fall so we can do a complete investigation and protect your rights. If the city is involved a notice of claim must be presented within 90 days.

Leav & Steinberg, LLP has recovered millions of dollars on behalf of our clients who unfortunately fell and got injured after falling on a defective sidewalk. It is always best to call us immediately so we can protect your rights.

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One of a personal injury attorney’s most important tasks is to protect clients. Two major parts of that involve ensuring clients have the best case possible under the law and protecting their privacy. Our last blog was about how injury attorneys can fortify a case with information from vehicle event data recorders. We linked to the New York law about the disclosure of the information recorded by event data records, such as speed, location, and brake performance. That type of activity recording raises privacy concerns, but that comes with the injury case territory.

Another privacy issue arises from a similar recording device, the license plate recorder. License plate recorders are cameras that may be mounted on things like police cars, tow trucks, traffic signs, and bridges and they have the potential to track each and every location an individual has driven. The ACLU has called for more legal restriction on the information obtained by these devices based on rights contained in the Fourth Amendment, in part because private companies are disclosing information with little to no oversight. Some states have already passed laws on the retention of the information collected from these cameras.

New recording devices raise new issues; as technology evolves, so does the law. But personal injury attorneys have been dealing with countless privacy issues since the start. Most commonly we deal with the Health Insurance Portability and Accountability Act, also known as HIPAA law. The law says injury attorneys have to turn over certain medical records and authorizations releasing medical records directly from healthcare providers to the attorneys whose job is to defend the case. A proper HIPAA authorization is always required to release medical records, but generally speaking only records related to the body parts injured in the accident need to be turned over. In Gumbs v. Flushing Town Center III, L.P., 1114 A.D.3d 573, 981 N.Y.S.2d 394 (1st Dept. 2014), the Appellate Division affirmed the decision of the Honorable Laura Douglas to protect the plaintiff from providing authorizations to the defendants relating to some of his own medical records. His case was related to injuries sustained to his shoulder and ankle. The defendants were seeking records from his cardiologist and primary care physician. The defendants claimed the records were related to the plaintiff’s ability to work and his life expectancy.

New HIPAA-related issues were created by electronic filing. Although putting bulky legal files into electronic form has its benefits, it also allows anyone who is capable of setting up an account to have easy access to a complete stranger’s medical records. The state court rules and the federal court rules both require redaction of the month and date of an individual’s date of birth and all but four digits of a social security number, among other things.

Another privacy issue, though one which has been litigated in relative detail at this stage, is disclosure of family members’ records in toxic tort cases, such as those involving lead paint. Some common demands made by defense counsel when faced with claims of an infant who was exposed to lead paint in their apartment are for the mother’s medical, pharmaceutical, and academic records. Another common demand is for the medical records of the siblings. In Vazquez v. New York City Hous. Auth., 79 A.D.3d 623, 914 N.Y.S.2d 127 (1st Dept. 2010), a young individual was exposed to a lead paint condition which exacerbated his pervasive developmental disorder. The defendant wanted to see the medical and academic records of the siblings, who were not involved in the lawsuit. The courts found that there was nothing more than speculation to support the notion that the siblings’ mental condition had any bearing on the plaintiff’s condition and denied the request.

The common thread among these issues is that privacy, confidentiality, and privilege are still being protected while technology is helping us do what we need to do in a different way. It will be interesting to see how, as technology evolves, the law draws a line to balance competing interests.

Resources:

The Legal Examiner, Is Privacy Jeopardized by LPRs? by Steven J. Klearman, 01.08.15

ACLU, You Are Being Tracked: How License Plate Readers Are Being Used To Record Americans’ Movements

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An explosion today in Manhattan’s East Harlem caused a piano store and an evangelical church to crumble to pieces, leaving a grim scene behind. The buildings, which were located near 116th Street and Park Avenue, also contained fifteen residential units. The incident was reported to be deafeningly loud, like a bomb. One witness described the feeling in his room nearby in the Taft Houses as similar to experiencing an earthquake and a car crash at once. The force of the explosion caused debris to spew onto elevated Metro North train tracks across the street, resulting in temporary suspension of service. Residential and commercial building windows nearby were shattered to pieces. People ran into the streets and gathered there in crowds. Smoke and flames poured out of the wreckage while first responders dug into the bricks, looking for survivors.

Two fatalities and twenty-eight injuries have been documented. The injuries range from minor to severe. One individual reported hearing loss and another individual seems to have suffered a brain injury. Almost two dozen of the injured are being treated at Mount Sinai Hospital. A handful are being treated at Harlem Hospital. Other hospitals with patients with injuries from this incident include NY Presbyterian, Weill Cornell, and Metropolitan Hospital. Numerous people remain missing at this time.

The cause of the explosion has not yet been determined. However, a Park Avenue resident notified Con Edison of a gas leak at 1652 Park Avenue at 9:13 A.M., approximately fifteen minutes prior to the explosion. The caller specified that the odor may have been coming from the exterior of the building. Con Ed’s work truck did not arrive at the scene until after the explosion. An eight inch low pressure gas main services this area; its condition is presently unknown.

Sources
CNN, Two buildings collapse, at least 2 dead after Manhattan explosion, Ray Sanchez, 03.12.2014

abc News, Two Dead, at least 28 Injured, Several Missing in NYC Building Explosion, Liz Fields, Aaron Katersky, Josh Margolin, 03.12.2014

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Under the lip of the kitchen sink. In the corners of the shower. Around the base of the bathroom sink faucet. Then there are always the science experiments in the back of the refrigerator. These are common areas of mold growth. Mold can be a good thing, like penicillium that produces the antibiotic penicillin. But too much penicillium, or aspergillum, or cladosporium can result in black mold that can endanger a person’s health. The Environmental Protection Agency (EPA) warns that mold exposure can cause “allergic reactions, asthma, and other respiratory complaints.”

Mold in New York

Molds are prevalent in moist areas. If there are leaks in pipes or a roof, that can be enough create the right conditions for mold growth. Richard Fields saw mold in his apartment in August 2003. He went to the hospital in September 2003 for headaches and nosebleeds. He told the doctor he had mold in his apartment and the doctor said the mold could cause his symptoms. Fields filed suit in January 2006 for mold exposure against the Lambert Houses Redevelopment Corp, the owner and manager of Fields’ apartment building. Fields amended his complaint to add estimated medical expenses.

At his deposition, Fields testified he saw mold in his apartment in January 2003 and sought treatment for exposure in February 2003. Lambert Houses Redevelopment Corp. moved for summary judgment to dismiss the complaint claiming Fields’ claims were time-barred. Fields opposed the summary judgment motion, submitting his hospital records showing he had visited the hospital in February 2003, but had not sought treatment for mold exposure until September 2003. The court denied the motion for summary judgment stating that it was an issue of fact about whether Fields had timely filed his suit.

Lambert Houses Redevelopment Corp. filed an appeal to the Appellate Division, First Department. The Appellate Court upheld the Supreme Court, Bronx County decision that the timely filing of suit was an issue of fact to be decided at trial.

What to Do About Mold

If there is a leak, the EPA recommends cleaning and drying damp areas within 24-48 hours to prevent mold growth. Hard surfaces can be cleaned with water and detergent and dried completely. Absorbent materials such as ceiling tiles may need to be replaced. The EPA recommends keeping relative indoor humidity to between 30 and 60% and venting moisture-build-up areas such as kitchens and bathrooms to the outdoors.

For individuals sensitive to molds, exposure can cause nasal stuffiness, eye irritation, wheezing, or skin irritations. More serious reactions can include fever and shortness or breath. For individuals “with chronic lung illnesses, such as obstructive lung disease, [they] may develop mold infections in their lungs.”

The New York State Department of Health gives information on molds on their website. The website gives some basic instructions on getting rid of mold. The information was gathered and assessed by the New York State Toxic Mold Task Force set up in 2010. The Task Force recommended improving building codes to prevent and minimize potential water problems in new buildings as well as existing buildings.

If you have found mold in your residence or workplace and have not had a positive response from your landlord or employer to remedy the problem, seek advice from our NYC personal injury attorney to protect yours and your family’s health.

See Related Posts:

Food Poisoning and Possible Legal Recompense

When Are Property Owners Liable for Injuries on Their Property?

Bronx Students, Department of Education Staff, and Others Who Were Around the Bronx New School (P.S. 51X) Exposed to Toxic Chemical

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Accidents happen everyday and are a part of life. However, some are more serious than others. If you get injured, it can cost time and money to get you back to where you were before the injury. When the injury is not your fault, the consequences of the injury should not fall on you alone.

Take for example, the recent New York case of Gale v. St. John’s University. Lisa Gale was hired by a third party company to replace stained ceiling tiles in various campus buildings. She regularly worked on St. John’s University (“St. John’s”) doing general janitorial work which often included changing tiles after it rained in the area. Ms. Gale was working at St. John’s when she was hit with a piece of metal from the ceiling grid in the bathroom of the university’s Campus Center, which caused her to fall while she was changing the ceiling tiles. She sued St. John’s for her resulting injuries because the school failed to keep the area safe.

In New York, a property owner cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff, Ms. Gale, establishes that the owner either created or had actual or constructive notice of the condition. Constructive notice happens when the defect is visible and obvious, and it must exist long enough for the defendant, St. John’s, to both find it and fix it. There is no constructive notice when the issue might not be detected with a reasonable inspection. Ms. Gale tried to claim that the repeated heavy leaking, in that bathroom, after most storms, should have been enough for the school to at least check the pipes. The court however disagreed. The judge found that a regular leak was not proof of the greater safety issue. Also, because the pipes were above the ceiling tiles, a reasonable inspection would not have the issue.

There was also a second reason Ms. Gale lost her case. Many claims require that in additional to being injured and showing it is the fault of the person you are suing, that you must also show the need for damages. Usually if there is an injury, there will be hospital costs, or days missed form work, or something similar that can easily show you require compensation. In this case, however, Ms. Gale could not show damages. In a previous hearing, which was part of this case, Ms. Gale was told to visit a court chosen doctor to review her injuries. This is common in personal injury cases because the court, and the opposition, want to make sure you are in fact injured. Ms. Gale failed to visit the doctor within a timely manner and due to a previous order of the court, was barred from testifying about damages. Without this evidence, Ms. Gale’s case was incompletely and would not have been able to go forward even if St. John’s had notice of the issue and failed to act.

Every case is different. One seemingly minor fact can mean the difference between winning and losing. Court cases are complicated and have a lot of steps that must be followed. You must do all that is asked of you by the court whether asked directly, such as during preliminary hearings, or through the court rules. Everyday cases are decided due to procedural issues, which, if that is not enough to completely end the case, will cost time and money fix. No one can guarantee a win but having an attorney with experience handling personal injuries can help you stay on top of all requirements and put your best case forward. If you have been injured, you should contact an experienced attorney today.

See Related Blog Posts:
Do You Know What To Do If You’re Injured?
Recent Declines in Construction Site Safety Lead to Injuries and Deaths

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Sustaining an injury, whether it is a slip and fall or a car accident or something else entirely, can be a scary and confusing time. For many people, sustaining a serious injury is among the lowest points in their lives. It can be particularly confusing when someone else is at fault for your injury. While no one wants to think about bringing a lawsuit immediately after an injury occurs, it is in your best interest to prepare as though a lawsuit will occur.

First, you need to make sure that your medical needs are taken care of. It will not do you any good to start any of the other steps if you have not ensured that your medical needs are met. In fact, it may hurt your lawsuit if you neglect your medical needs, as the defendant could argue that your injuries were increased by a failure to seek immediate medical attention.

Evidence
It is important to retain any physical evidence related to your injury. Preserving any physical evidence of the incident can help to prove your claim in court. You should, when possible, gather the evidence as soon as you can, because accident scenes can change or be altered. For example, make sure you keep any torn clothing, broken equipment and important documents, and try to keep them in the same condition.

Photographs of car accident scenes or the area where someone fell can provide a lot of information for your attorney. Taking photos is very easy, as well, because so many people have smartphones with cameras. You should generally try to take photos of the scene from multiple angles. Remember, it is better to have too many photos rather than wishing you had taken more.

Witnesses
A witness can be very helpful in proving your claims. Once an incident occurs, if you are not too injured, try to obtain the name and contact information for anyone that may have seen what happened. Remember that people may move, ignore phone calls or simply forget, so you should always try to find as many witnesses as possible to ensure that you have someone able to confirm your story.

Police Report
If you are involved in a car accident, or any other incident where law enforcement was summoned, like an assault, then a police report will be created. You are entitled to receive a copy of the officer’s police report. Generally, you just need to contact the police department to request your copy, although sometimes it may take a few days and you may be required to pay a small fee.

The police report can provide significant evidence to help bolster your case. For example, in a car accident, the report will often provide a description and diagram of the accident, along with the officer’s conclusion regarding fault. Some police reports even contain the names of witnesses. In short, a police report provides information that is valuable throughout the case, from determining whether to sue to settlement negotiations to trial.

Notes
Finally, you should try to write down as much as you are able, particularly right after the incident. Be as descriptive as you can, and include what you noticed about the scene before the incident. Make sure that you take notes regarding exactly what happened, including both before and after the incident occurred. And don’t forget to include your emotional state as well, as that can be important. Also, documenting your injuries, and especially any difficulties with everyday life can help to establish how your injuries have affected you.

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Every day, thousands and thousands of people go to the grocery store or corner market to buy food and other items that they need for daily life. For the most part, these visits are the same. People enter the store, pick out the items they wish to purchase, check out at the cash register and then leave the store to go home and enjoy their purchases. However, not every visit to the grocery store is without incident, as there are dangers inherent to grocery stores, some hidden and some are more obvious.

Some may sneer at these sorts of incidents, but the fact remains that premise liability incidents occur frequently and local residents are hurt all the time as a result.

As most people know, grocery stores stock produce for customers to purchase. Most produce displays are set up in a way to be attractive to the consumer, without regard to safety. It does not take much for a piece of fruit, like a grape, to get knocked off the display and end up on the floor. Once the grape is on the floor, it becomes a slipping hazard. When a grape is squashed, it becomes slippery and may be enough to cause a customer to slip and fall.

Similarly, grocery stores stock items in glass jars, like pickles, mayonnaise and olives. These types of items pose a double danger. First, another customer may knock a glass jar off the shelf, and very few of them will alert the store personnel. They will simply walk on as if nothing happened. The broken glass creates an obvious hazard, as it may cut anyone that touches it. Additionally, the contents of the glass jar is now spread on the floor, and may not be visible. Like the grape, this becomes a slipping hazard where you may unintentionally fall. This type of situation is arguably worse than that of the grape, because you may fall onto the broken glass, making the injury worse.

Second, glass jars may be stacked precariously on high shelves, or on eye-catching displays. The grocery store’s stocking personnel may not consider the consequences when they are stacking mayonnaise jars on a high shelf or on top of display, but many people have been injured when a glass jar or other food item falls from a high area and hits them. It may seem like a falling jar would not cause much of an injury, but glass jars can be very heavy and, particularly with elderly customers, it may not take much to cause an injury.

All grocery stores have refrigerated and frozen sections, where they keep meat, dairy items and other food that must be kept cold. All of the refrigerated and frozen displays create a lot of condensation. The displays are designed to deal with the condensation, so that it does not become a hazard. However, as many people can attest, machines can break. When these freezer and refrigerator machines break, they may begin to leak water onto the floor nearby without anyone noticing. A large puddle on a tile floor can be very, very slippery and may cause customers to fall.

It is always important to be aware of the dangers that may be involved with your typical trip to the grocery store. However, even those that are aware of the dangers may not always escape injury, and when that happens, the store and its insurance company should be held responsible.

All New Yorkers who are hurt in a grocery store accident should take a moment to call the legal professionals at Leav & Steinberg to learn more about how the law applies in your case.