OSHA was created by the Occupational Safety and Health Act of 1970; the goal of the Act is to ensure that employers provide employees with a work environment free from recognized hazards, such as exposure to toxic chemicals, falls from elevated places, mechanical dangers, or unsanitary conditions.

To ensure the safety of employees, OSHA created a vast list of safety requirements that employers are required to comply with.  For example, an employer is required to instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to the employees work environment to control or eliminate hazard(s) or other exposure to illness or injury [29 CFR 1926.21(b)(2)].

In addition to general safety requirements, an example of which is above, there are also safety requirements specific to the type of tool or machinery utilized on the job site.  For example, if a scaffold is in use, the planks must extend over their end supports not less than 6 inches nor more than 18 inches [29 CFR 1910.28(a)(13)].  Or, if a portable circular saw is in use, the saw must have an upper guard that covers the entire blade of the saw and a retractable lower guard [29 CFR 1926.304(d)].

When a new client comes to our office with a construction accident injury, one of the first things our office does is review the facts for violations of the OSHA requirements.  If a violation is found, a report is made to OSHA.

Upon receiving a report of a violation, OSHA will investigate, which usually includes a site visit to the location of the accident and/or an inspection of the employers shop.  If a violation is found as a result of the inspections, OSHA will issue a Citation and Notification of Penalty.

OSHA violations are classified as: 1. “Other Than Serious Violation”; 2. “Serious Violation”; and 3. “Willful Violation”.  A willful violation carries the largest fine; Other Than Serious carries the smallest fine.  Violations can also be categorized as a “Repeat Violation” or a “Failure To Abate Prior Violation”.

Once an employer receives a Citation and Notification of Penalty, the employer can either pay the fine, or partake in an informal conference in attempts to reduce the fine.  If the employer is unable to reduce the fine as a result of the informal conference, the employer can also contest the violations and penalty before the OSHA Board in Washington D.C.

The benefit of utilizing the OSHA process for prosecuting personal injury claims is that the OSHA paperwork regarding violations and citations can be obtained via a Freedom Of Information Law request, thereby providing an attorney with proof of the employers’ negligence and responsibility for the employees’ injuries.  Further, since they are issued by a Federal Governmental Agency responsible for employee safety, the OSHA violations carry significant weight and are thus a valuable tool for use in settlement negotiations and/or trial.

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Here is an example, a person is tragically hit by a vehicle while crossing the street and dies as a result.  Now let’s assume that person died without a will and had no living children, parents, siblings or grandparents.  When a person dies without a will, their estate will be divided pursuant to the New York EPTL, and must be administrated by an administrator who qualifies under New York Law.  In order to qualify under NY EPTL the administrator must be a distributee (must receive monetary benefit from the estate) and must be an immediate family member i.e. spouse, parent, grandparent, sibling, adult child (there are other technical ways for guardians to become administrator but that will not be covered in this article).  If no distributee qualifies to be an administrator, the Public Administrator of the County where the decedent resided must be petitioned to be the administrator of the estate.  The Public Administrator is a public authority who will administer the estate of decedents who do not have an administrator.  So, if the decedent died as a result of third party negligence then the Public Administrator would be the plaintiff in charge of the lawsuit.  The Public Administrator will also retain the lawyer who will handle the wrongful death case for the estate.  When the lawsuit is complete and if there is a monetary recovery the Public Administrator will then distribute the money to the proper distributees of the estate.

Under normal circumstances the administrator of an estate would be the living spouse or adult child of the decedent.  This makes sense because they would be the primary recipient of any monetary funds that would be derived from a wrongful death action.  New York Law mandates that only an immediate family member who is a direct distributee of the estate can be appointed administrator of the estate.  The law also mandates that only select close family members may be qualified to administrate the estate.  So, if you are the soul distributee but are only a cousin of the decedent, you may not administrate the estate.  Instead you must use the services of the Public Administrator.  The Public Administrator and their attorney are entitled to a percentage fee of the ultimate recovery for their services.  Sometimes this process can be confusing and it is important that you seek the guidance of an attorney who is well versed in this field.

Giampa Law has been handling wrongful death actions for New York residents for over thirty years.  The attorneys at Giampa Law are well versed in dealing with the Public Administrator and can also help a qualified family member become Administrator of their loved one’s estate.  If you believe that your loved one has wrongfully died as a result of a third party and believe their estate is entitled to compensation please contact Giampa Law.

So what’s next?  How do you get the case restored to the trial calendar?  In our particular case, the matter was venued in Queens.  Pursuant to local TSP part rules, a stipulation is the first option for getting the case restored.  The TSP part can provide a template stipulation which can be signed by all parties to restore the case to the calendar.  The substance of the stipulation states that 1.  all discovery is complete; 2. specifies a date the Note of Issue is to be filed, and 3. specifies a date a conference is to be held, 90 days after the Note of Issue is filed.

In our consolidated action, getting all parties to stipulate to returning the case to the calendar was simply not possible – getting all parties to agree was a non-starter – which leads to the second option for restoring the matter to the trial calendar, a motion to restore.

First, the motion to restore requires an Affirmation of Attempts to comply with the aforementioned TSP part rules.  Simply stated, the Affirmation of Attempts states that you attempted to get all parties to sign the stipulation but were unsuccessful.  In Queens County, the Affirmation of Attempts must be affixed to the Notice of Motion.

Second, the substance of the motion should note that when the note of issue has been vacated, the case reverts to its status as a pre-note case.  Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006).   Further, in the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked inactive is automatic.  Matter of Transtechnology Corp. v. Assessor, 71 A.D.3d 1034, 1037-1038 (2d Dep’t 2010); Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006); Klevanskaya v. Khanimova, 21 A.D.3d 350 (2d Dep’t 2005).

Third, as a practical matter, when the case involves consolidated actions and other parties are hampering or hindering the prosecution of the case, it may be wise to include in the motion to restore a branch seeking severance pursuant to CPLR §603, if required, preferable, convenient, or necessary to restore the matter to the trial calendar.  When arguing in support of severance, demonstrating prejudice to your client is necessary to sever the matters.  Has your client suffered as a result of the delay? Has your client become of recipient of public assistance as a result of the delay?  These two examples can demonstrate prejudice in support of severance.

While restoring a matter to the calendar can be tedious, it is necessary to move the case forward.  Hopefully after reading our blog, restoring a case to the calendar will become a little easier for you – should you end up marked off the active calendar.

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If a decision gives a direct order to serve with notice of entry within a specific time frame, failure to do so shall make the decision irregular and void.  Moreover, if a decision has language such as to serve all parties “without undue delay” it could be considered a violation of CPLR § 2220(a) if the winning party waits to long to serve the decision with notice of entry on their adversaries.  The civil procedure rules clearly state that a violation of CPLR § 2220(a) may result in deeming the order irregular and vacating the same.

We recently had a case where an adversary waited a year to serve a decision granting him summary judgment with notice of entry and failed to provide any good cause reason for their year long delay.  Moreover, they were directed by the Court to serve “without undue delay”.  Under no circumstances could the defendant-respondent’s year long delay in serving the order with notice of entry be considered “without undue delay”.  In most circumstances the service of an order should be accomplished within thirty (30) days of its filing.  Defendant waited twelve (12) months which clearly shows undue delay.  This issue is currently pending before the second department and we will soon see what the ultimate decision will be.

Now there are other oral decisions which a judge may render for the bench and then require the winning party to order the Court minutes so that they may be signed and filed.  Failure to submit the transcribed decision to the Court for signature within thirty days will make the decision null and void as per the New York Code Rules & Regulations.

By the mere act of standing on a ladder, one would imagine that they are thus subjected to an elevation-related risk – you’re on the ladder so you are subjected to an elevated-risk, appears simple.  However, unfortunately it’s not that simple.  The mere fact that one is on a ladder does not automatically invoke the applicability of Labor Law §240(1).

New York Labor Law §2401(1) provides that “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 employed.”

The key to invoking applicability of §240(1) and thus obtaining the strict liability offered by the statute is that the work must be performed in “the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure”.  This quoted language can be an obstacle to obtaining coverage under §2401(1) – if the hanging of the sign does not involve the erection, demolition, repairing, altering, painting, etc, then hanging the sign is not covered under §240(1).

Appellate Decisions regarding sign hanging and Labor Law §240(1), can appear inconsistent.  Work that one court finds to be alteration, another court may not.  However, one constant revolves around the amount of work it takes to hang the sign – the more effort required, the more likely the work is considered alteration and thus §240(1) will apply and the owners and contractor are strictly liable for the workers injuries.

For example, the First Department in Futterman v. Rela Realty Corp., 283 A.D.2d 261 (1st Dep’t 2001), found that hanging an interior sign from an existing platform was not directed at effecting the sort of significant physical change to the building as would have brought the work within the protective ambit of Labor Law §240(1).  Also, the Fourth Department, in Jones v. Bartlett, 275 A.D.2d 956 (4th Dep’t 2000), found that standing on a ladder and hanging a banner from a sign frame was not engaging in work protected by Labor Law §240(1).

Seemingly indistinguishable fact patterns from the above cases have rendered different results.  For example, the Second Department in Vasquez v. Skyline Const. & Restoration Corp., 8 A.D.3d 473 (2d Dep’t 2004), found that standing on a ladder to install a sign on the building is the type of work contemplated by §240(1).  Similarly so, the Third Department in Lawyer v. Rotterdam Ventures, 204 A.D.2d 878 (3d 1994) found that there was little question that standing on a ladder to install a sign is the type of work contemplated by Labor Law §240(1).

The one constant referenced above is that where more work is required to hang the sign it is more likely the activities are covered by §240(1). For example, the Second Department in LaGiudice v. Sleepy’s Inc., 67 A.D.3d 969 (2d Dep’t 2009) found that drilling through cinder blocks and feeding electrical wires through the hole to connect to the sign was significant enough to be considered alteration and thus §240(1) was applicable.

In sum, merely standing on a ladder to hang a sign may not afford an injured worker the protections of §240(1), however, the more work that must be done to hang the sign – the more likely the work will be covered by Labor law §240(1).

First, a plaintiff is entitled to receive money damages for economic loss and for pain and suffering. Economic loss is awarded to compensate the plaintiff for money that was lost or will be lost as a result of the injury.  For instance, if you were involved in a car accident and were unable to work for a certain period of time you are entitled to be compensated from the liable party for your lost wages.  You are also entitled to be reimbursed for medical expenses along with additional out of pocket expenses that you were forced to pay as a result of the accident.  These numbers can be easily calculated by adding up your lost wages and your lost expenses, a plaintiff is entitled to receive full compensation for all of their past economic damages.

If the plaintiff is continuing to have ongoing medical care and/or is unable to go back to work at the time of the trial/settlement, the injured party may also be entitled to receive compensation for future economic damages.  These damages are more speculative and often necessitate expert witness testimony.  Future economic damages include future medical care, future surgeries and future monetary income from a job that you can no longer perform.  If properly established, a plaintiff is entitled to receive full compensation for these future economic damages.  These medical damages are calculated by adding up your foreseeable medical expenses along with any future medical expenses.  Future lost earnings are calculated by adding up what your future income would have been and may include future raises or promotions that you would have been entitled.

A plaintiff is also entitled to receive money damages for all of the pain and suffering they have endured since the date of the accident, along with the future pain and suffering they continue to endure as a result of the injury.  These non-economic damages are much harder to value and are subjective to the evaluator.  It is interesting to note that the demographics of the County in which you filed your lawsuit have a large impact on how much your pain and suffering is worth.  Statistics show that juries in some New York Counties value pain and suffering greater than other Counties.  Therefore, the same case in one County could be worth substantially more than if it is brought in another County within New York State.  It is a factor that must be considered when initially filing a lawsuit.

Damages can also be reduced depending on the extent of the liability of the defendant party.  If the plaintiff is partially responsible for the accident the value of the case will be reduced by that percentage which is the plaintiff’s own fault.  Also, the plaintiff’s recovery may also be reduced if they have a pre-existing injury which effects the portion of the body which was involved in the accident in question.

While this is by no means a comprehensive description of everything that goes into valuing a personal injury case, it is a basic outline to follow when determining what a case may be worth at settlement or trial.