Newsletter For March

Issue 10

March 1, 2004

The Durst Law Firm, P.C.

_xztÄ axãá Special points of interest: ♦ Winning summary judgment in ladder fall cases ♦ Deadline for No-Fault claim is now 30 days after the accident, instead of 90 days

SUMMARY JUDGMENT IN LADDER FALL CASES, AFTER BLAKE Defendants in Labor Law 240 (1) cases are trying to use the decision of the Court of Appeals in Blake v. Neighborhood Housing Services of New York City, 203 WL 22998497 to defeat motions for summary judgment, saying that there must be a articulated violation of Labor Law 240(1) before the Court should grant summary judgment.

Blake case to prevent a court from granting summary judgment in most ladder and scaffold cases. The Court of Appeals stated in Blake that “[o]nce the plaintiff makes a prima facie showing the burden then shifts to the defendant, who may defeat plaintiff’s motion for summary judgment only if there is a plausible view of the evidence – enough to raise a fact question – that there is no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident. If defendant’s assertions in response fail to raise a fact question as to these issues, the plaintiff must be accorded summary judgment. . . .”

♦ The Senate is weighing law giving FCC power to fine talkers 1/2 Million dollars for “indecent” speech

This article will review what specific violations of Labor Law 240(1) can be establish when a ladder falls at a construction site, as in the Blake case. There is no reason in most situations for the

Inside this issue:

THE NEW NO FAULT REGULATIONS

Ladder Cases

1

No Fault

1

FCC Cultural Wars

2

Since 1997, an car accident victim has had 90 days to submit a notice of claim to the insurer. Proof of medical expenses was required within 180 days of the treatment received; proof of work losses as soon as reasonably practicable; and proof of other necessary ex-

penses within 90 days after services were rendered. Late applications were permitted only when it could be shown that compliance with the deadlines was "impossible" due to specific circumstances beyond the claimants control.

This ladder must be secured at its top and bottom, to prevent it from slipping and falling.

Doctors and lawyers must be aware that now, new regulations are now in effect which reduce the time limit for filing a notice of claim from 90 to 30 days. They reduce the time in which to submit proof of laws due to medical treatment from 180 to 45 days, and proof of

Legal News

Ladder Falls and Summary Judgment Once the plaintiff has

One of the most frequent accidents that lawyers deal with is a fall while painting.

demonstrated that there was a statutory violation applicable to this situation, the evidence submitted in opposition usually fails to show any genuine factual dispute as to whether there was a statutory violation. Specifically, there is usually no evidence to raise a genuine issue of fact as to whether the placement of the ladder, without being secured, violated the OSHA Regulations, and thereby Labor Law 240(1). So the job on a motion for

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summary judgment under Labor Law 240(1) is to articulate how the ladder was not “constructed, placed and operated as to give proper protection to a person”. In order for a ladder to be “placed” so as to “give proper protection”, the placement must at a minimum meet the requirements of the OSHA Regulations and New York State Industrial Code for the use of ladders at construction sites.

The NYS Industrial Code 1910.25(d)(2)(xv) states that “[W]hen work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means.” When work is being performed from rungs higher than 10 feet above the

New No Fault Regulations work laws from as soon as reasonably practicable to 90 days. While creating more stringent deadlines for submitting claims, the new regulations, when used carefully, can be used to the benefit of the No Fault applicant as well. Attorneys representing car accident victims must be fully aware of the saving provisions of the new regulations.

For instance, the new regulations relax the standard for excepting late filings, replacing the previous rule that late filings were permitted only when written proof showed that compliance with a deadline was "impossible", with a standard excusing a missed deadline when there is a "clear and a reasonable justification" for the delay.

Under the new regulations, claims may never be denied as untimely when the reason for the delay is the failure of an employer or other third party to provide information necessary to establish proof of claim for lost wages. Each claimant must be notified of the new notice requirements and the opportunity to

FCC on the March

Does the FCC, like the Taliban, want to impose a rightwing religious view of “proper speech” on the Unbelievers? More veils for women?

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If you have been listening to the radio in the morning, you may have heard Howard Stern ranting feverishly about a new bill in the Senate which will authorize the FCC to issue fines in the amount of $500,000 for anything they deem to be “indecent” on the airwaves. The

fine will be assessed against the station, and the individual, and multiplied by the number of stations the individual appears on. Howard Stern’s show airs on 70 stations, so if he accidentally said the “F word”, he could be fined $500,000, 70 times. A $35 million fine sounds ridiculous on its

face, so the bill places a limit of $3 million per day as the maximum fine. Such a devastating fine has such a “chilling effect” that all on-air personalities would be scared to death that they or one of their guests might say some-

Issue 10

Ladder Falls and Summary Judgment ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used. OSHA Reg. 1926.1053(b)(1) specifically requires that the side rails extend three feet above the upper landing, where the ladder

is supported, or be secured at the top to a rigid support. OSHA in its list of the most frequently cited OSHA hazards; the hazard ranked #21 in frequency is a violation of Regulations 1926.1053(b)(1). OSHA explains that “[t]he purpose of this rule is to provide protection to employees during two critical phases of ladder climbing: 1) when employees are on the ladder and their movement may cause forces to be transferred to the ladder and it’s

support points which might tend to make it slip or fall; . . .” The “Selected Case Histories” states: “An employee was climbing a 10 foot ladder to access a landing which was 9 feet above the adjacent floor. The ladder slid down and the employee fell to the floor, sustaining fatal injuries. Although the ladder had slip-resistant feet, it was not secured, and the railings did not extend 3 feet above the landing. The Comment notes that “[t]his is a specification standard which

Clear violations of the rules on ladder use and placement occur at most construction sites, and injuries are common.

New No Fault Regulations submit a justification for any late notice. Insurers are required to establish standards of review for their determination that notices or proofs of claim to have been filed late, and these standards must include consideration for situations where they claimant has difficulty ascertained the insurer's identity for inadvertently

submits a claim to the incorrect insurer. All denials of claim based on late filings must be subject to supervisory review of all such determinations. The new regulations have been challenged in court, and upheld by the New York State Court of Appeals. In the Matter of Medical Society of the State of New York, et al., Appellants,

v. Gregory Serio, 100 N.Y.2d 854; 800 N.E.2d 728; 768 N.Y.S.2d 423; 2003 N.Y. LEXIS 3314 (October 21, 2003). So the only way to deal with them is to know the details of the regulations, and use the affirmative requirements imposed on the insurance companies to the benefit of the car accident victim, when necessary to save their nofault claim.

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FCC on the March thing that offends the FCC . For his part, Stern has said that he will resign if the Senate passes the bill. And he has every reason to be afraid. He, unlike most broadcasters, has enough money to be concerned about such a fine. He has spent a life-

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time building up his business, and the bill gives the FCC the power to wipe out a lifetime of earnings. It is a real fear; Stern’s station was fined $1.7 million in the past, and he is spontaneous enough on a daily basis that the FCC could find fault with his show just about any time it wanted to.

This is especially true given the fact that the Republicans in office are currying the favor of the religious right before the election, and would love nothing more than to make an example of him. Stay tuned!

Is George cheering on the religious right in their attack against loose talk?

The Durst Law Firm, P.C. The Durst Law Firm, P.C. 285 Broadway New York, New York 10007 Phone: 212-964-1000 Fax: 212-964-1400 Email: [email protected]

“We are the only profession where the best costs the same as the rest because of the contingency fee”

The Durst Law Firm, P.C. is a professional corporation of attorneys specializing in representing personal injury victims. Our focus is on workers at construction sites and at factories, who are exposed to the serious dangers of their work, without much protection from their employers. OSHA has barely enough inspectors to respond to specific complaints after an injury has occurred. They do not have the budget to prevent accidents, and the fines they impose for violations after a serious injury occurs are minor, and do not help the injured worker at all. The amounts an injured worker can recovery in workers compensation benefits are ridiculously small compared to the amount of actual lost earnings. Our job is to see to it that these working class heroes get the compensation they deserve when they are disabled. We love our job.

Visit the complete lawyer’s website at: www.nynylaw.com

Ladder Falls and Summary Judgment is easily identified and substantiated as a violation as evident by it’s high ranking on the 100 Most Cited Physical List. Therefore, the contractor must continually audit the site to remain in compliance with this item. The standard was cited in 6 fatality/catastrophe inspections since January, 1991.” In OSHA language, this violation “is easily identified and substantiated as a violation”. To put this in the legal terminology of the Court of Appeals, “there is no view of the evidence here which could lead to the conclusion that the violation of Labor Law § 240 (1) was not the proximate cause of the accident”. In the face of undisputed testimony that the ladder’s placement failed to comply with a

specific OSHA Regulation, and a specific New York State Industrial Code provision, rebuttal evidence is usually insufficient. For these reasons, the Blake case, while it denied summary judgment to a poorly presented plaintiff’s case, can be used successfully to obtain summary judgment on any ladder fall case which is properly prepared. To win construction site accident cases, you must know not only the law, but also the details of the regulations involving the use of ladders and scaffolds. If you don’t present the full picture to the Court concerning these regulations, you can lose cases that should be won. The attorney in Blake blew it; don’t let it happen to you.

Most desk jockeys have no idea what it is like to work with danger every day; a minor mistake by a construction worker should not be allowed to ruin his life.