Feldman, Kronfeld & Beatty Law Blog

Wednesday, October 28, 2015

1st Judicial Department, Appellate Division Roundup: October 20, 2015 Edition

In this threshold-case heavy selection from the First Department, we have one unusual case where Justices Tom and Andrias dissent on the question of what the defendant must show to make a prima facie case that they did not have constructive notice of a condition.  More, after the jump . . . 

Read more . . .

Tuesday, October 27, 2015

2d Judicial Department, Appellate Division Roundup: October 14, 2015 Edition

In this edition, be prepared to explore summary judgments, including several involving slip-and-falls in the rain, bus shelters shattering on people for no reason, and some interesting labor law cases. More, after the jump . .  . 

Read more . . .

Monday, October 26, 2015

UberProblem: TLC Does Not Track Uber's Safety Record

No matter if they're black or yellow, or an international phone-based hailing service or the local medallion owner, vehicles for hire need to be regulated and tracked. The Taxi & Limousine Commission does this for both black and yellow cars, but as it shows, the TLC likely needs to do more. The TLC does not break down the safety record for individual black car companies. A company like Uber, which is growing enormously, needs to be held accountable. Of the 35,528 active black, more than 23,000 are Uber - a make-up 66%. And some of the deadliest accidents were caused by Uber drivers, such as the death of a golfer and his girlfriend in January. Feldman, Kronfeld & Beatty are experienced trial attorneys who can assist with accidents that involve an Uber vehicle; you can ask for a free consultation at (212) 425-0230 or at

Wednesday, October 21, 2015

1st Judicial Department, Appellate Division Roundup: October 15, 2015 Edition

A short update, but unusual as it includes a split regarding a Labor Law motion. Check it out below:

Pedro Quinones v. Olmstead Properties, Inc.

 In this SPLIT opinion Labor Law 240(1) case, we will first address the facts, then the Court's findings and then the dissent's:

While painting over graffiti on a billboard, plaintiff lost his balance and fell. The billboard had a row of concrete blocks in front of it to prevent it from tipping over, and the plaintiff was standing on three of them to reach up to the top. He was loosening one of the straps that held the image to the frame so he could paint underneath it. He had been provided a cherry picker, a safety harness and landyard, and two ladders.

The Court found that the defendant had properly made a showing, by means of an expert, that the defendant had provided via testimony of an executive of the defendant's corporation that he had seen a worker using a cherry picker to change the billboard, and via expert submission that the plaintiff could have used the billboard's frameworks to tie off the landyard of the safety harness.

The dissent, however, found that the defendant executive's testimony didn't rise to the level of raising an issue of fact, as the testimony did not establish that the cherry picker that the executive had seen or the work that had been done using said cherry picker was the same as the plaintiff's situation. Furthermore, the dissent found as a matter of law that the expert's statements were conclusory as although the expert identified spots where the landyard could be tied off, the expert failed to include physical properties of those spots necessary to support plaintiff's weight if he fell and the steps he used to identify those spots. Therefore, the dissent found that the evidence adduced would not reach to the level of rebutting plaintiff's proof.

Robert McCullough v. One Bryant Park, et al.

This labor law and common-law negligence case involved a construction worker who was passing from an exterior roof to an interior room. He stepped into an uncovered "drain hole" and fell to the floor. The Court reversed the granting of summary judgment in favor of One Bryant against the plaintiff on two grounds. First, the doorway was considered a passageway for the purpose of proving a Labor Law 241(6) violation of 12 NYCRR 23-1.7(e)(1). Second, just because the defendants lacked supervisory control over plaintiff's work, they could not be dismissed from common-law negligence claims because the injuries arose from the condition of the workplace, rather than the method used in performing the work, and they failed to make a prima facie case showing that they lacked constructive notice of the uncovered drain hole.

Eduardo Velasquez v. MTA Bus Company

In this case, the plaintiff, on his bicycle, was struck when the defendant bus driver changed lanes. Even though the plaintiff was in the middle lane of traffic, and the bus driver was trying to switch to the left lane of traffic to pass the bicycle, by the defendant driver's own admissions it made a prima facie case of negligence and the plaintiff won on summary judgment.

Mark Walker v. Robert C. Whitney, III

In this threshold motion, the plaintiff's case was dismissed at the Supreme Court and affirmed by the Appellate Division. The defendant submitted reports of an orthopedist and neurologist who found full range of motion, and a radiologist which found degenerative diseases and no evidence of causally related injury. In opposition, the plaintiff failed to properly submit admissible evidence. The unaffirmed MRI findings, which would not be admissible anyways, failed to explain how mild hypertrophic changes of the AC joint could be explained by traumatic injury rather than degeneration. The medical records reviewed by defendant's experts in preparation for their exams were also properly held out. The only admissible evidence was a review by plaintiff's orthopedic surgeon shortly after his arthroscopy, which failed to provide measurements of the decreased range of motion in the left shoulder, and did not provide evidentiary support for a statement that plaintiff's shoulder condition was related to the accident, or address the defendants' experts that any shoulder injury was not due to ongoing pathology and degenerative changes.


Wednesday, October 21, 2015

Court of Appeals Alert: Trivial Defects Discussed in Depth in Hutchinson

On October 15, the Court of Appeals had a huge and in-depth discussion of three trip-and-fall personal injury cases that arrived on its docket on a motion for summary judgment for the triviality of the defect. In discussing the defect, the Court gave practitioners a good perspective on future slip and fall cases. To summarize, the Court gave three clarifying notes:

1)  The triviality of a defect does not have to do with its height or other physical characteristics so much as it has to do with whether its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses.

2) The relevant question is not whether the defect is capable of being a trap, but whether the defect was difficult to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.

3) The defendant must make a prima facie showing of the triviality of the defect as a matter of law.

More, after the jump . . .

Read more . . .

Tuesday, October 20, 2015

Inconsistent Safety at NYC Building Projects Causing Deaths, Daily News Reports

The attorneys at Feldman, Kronfeld & Beatty are experienced with dealing with accidents and injuries that occur on construction sites. Thanks to the leadership and vision of New York's legislature, New York has some of the strictest rules protecting construction workers in the country. Even then, those rules are coming under attack, as more and more construction workers lose their lives.

The New York Daily News reported on Saturday that while the number of building permits has jumped 18% from 2011, the number of deaths has also climbed - as the number of building inspectors dropped. Eighteen workers lost their lives last fiscal year, against twelve the year before, as the number of building inspectors dropped by 6%. 

"Nine workers fell to their deaths, almost always at job sites where safety measures were nonexistent. Several were crushed to death by walls that weren’t properly braced. Improperly secured steel trusses rolled on top of another worker."

All of the above are height-related injuries that New York law has the most stringent protections for workers. The owners of the building sites, the general contractors, and the subcontractors may all be liable for a construction worker's injury on the job. It is extremely important for anyone who is injured while working at a construction site in New York City to contact experienced trial attorneys to discuss their rights and potential claims. The attorneys at Feldman, Kronfeld & Beatty are available for a free consultation at (212) 425-0230 or at

Monday, October 19, 2015

Dangers Under Your Feet: Falling Into Sidewalk Vaults

The offices of Feldman, Kronfeld & Beatty have been located in lower Manhattan for twenty five years. In those times, and as the lawyers and staff use the subways, buses, and taxis of New York City to get to court, to depositions, to interview clients, and to inspect accident sites, sometimes we pass over sidewalk vaults. And, as we learned this week, and as the clients of Feldman, Kronfeld & Beatty know from personal experience, sidewalk grates are dangerous.

CBS New York reported that on Thursday, at the corner of Fifth Avenue and 34th Street, a man fell into a sidewalk grate. However, we know many people who have fallen into sidewalk vaults and sidewalk grates, and there is a significant difference between the two. Sidewalk grates are located in the sidewalk, away from the building, and they are usually part of ConEd's or another utility's access points. A sidewalk vault is part of the premises, which allows street-level access directly to the basement, and is often used to transport goods into the basement or trash from above. In either case, it is unlikely that someone is falling into a sidewalk vault or grate at 3PM in midtown Manhattan without there being some likelihood that the owners and/or managers of the grate or sidewalk are negligent.

In this case, the man fell 12 feet into that open sidewalk vault and hit his head, sustaining a laceration and according to a witness "bleeding all over the place." He was taken to Bellevue Hospital but according to the report, appears to be in stable condition and will recover. Others, however, may not be so lucky.

If you or a loved one has fallen into a sidewalk vault or grate and is injured, you should speak to an experienced trial lawyer to discuss your rights and potential claims. The attorneys at Feldman, Kronfeld & Beatty are available for a free consultation at (212) 425-0230 and at

Friday, October 16, 2015

The Sky Is Falling: Three Injured From Falling Glass at 245 Fifth Avenue

When Chicken Little warned everybody that the sky was falling, no one believed her. Sometimes, trial lawyers can feel like Chicken Littles, warning the City and State government that protections for pedestrians and construction workers are too lax. When people are injured due to defects, mistakes, or plain old negligence in construction, trial lawyers can be the scaffold that protects everyday New Yorkers from the falling sky.

On Wednesday, at 245 Fifth Avenue at the corner of 28th Street, panes of glass began to fall on pedestrians below from the 17th floor of a commercial building at that corner. Three were injured and taken to NYU Langone hospital. The building, owned by the Moinian Group, boasts that it is a "newly built, high-end space with glass front offices."

If you are injured by pieces of falling glass, please consult experienced trial lawyers as to your rights and potential claims. The attorneys at Feldman, Kronfeld & Beatty are available for a free consultation at (212) 425-0230 or at

Thursday, October 15, 2015

2d Judicial Department, Appellate Division Roundup: October 7, 2015 Edition

This is a particular exciting edition of the Roundup, as there are three big cases dealing with complicated issues, including one involving a multi-million dollar verdict for the plaintiffs. There are several cases having to deal with threshold and serious injuries in motor vehicle accidents, as well as a number of cases dealing with bread-and-butter litigation issues. We'll explore more, after the jump . . . 

Read more . . .

Wednesday, October 14, 2015

Mother Killed at 138th Street and Bruckner Boulevard: A Fatal Intersection

At the end of her shift at Dufour Pastry, Sheniqua Silva was crushed to death by a Coca-Cola truck that jumped the curb and slammed into her and four others at 138th Street and Bruckner Boulevard in Port Morris in the Bronx on Monday. A Nissan sedan, which was trying to get onto the Bruckner Expressway, tried to pass the truck and crashed into it, causing the chain reaction that killed the mother of five.

These accidents, and others, are all too common in New York City. The NYPD tracks these accidents, and the intersection of East 138th Street and Bruckner Boulevard is extremely dangerous. In August 2015, there were 20 collisions at that intersection, including with a pedestrian who was injured. Five people were injured at that intersection in July of this year. Another two people suffered the same fate in June. 

The attorneys of Feldman, Kronfeld & Beatty, who handle Bronx cases every day, have vast experience with pedestrians who have been injured by vehicles. If you are injured by a vehicle, please discuss with experienced trial attorneys your rights and potential claims you might have. The attorneys at Feldman, Kronfeld & Beatty are available for a free consultation for pedestrian accidents at (212) 425-0230 or at

Tuesday, October 13, 2015

Contracts, Sports, & Injuries: Preventing Recovery for Others' Negligence

The attorneys and staff at Feldman, Kronfeld & Beatty enjoy outdoor activities like hiking, sailing, and playing sports. Sometimes, like our clients, we are involved with an organization that asks us to sign a contract or a waiver before participating. Those waivers, long paragraphs of little text, often have provisions that can prevent you or injured loved ones from recovering for injuries received due to others' negligence. If you are participating in a sports program, be sure to ask for copies of any contract or waiver that you signed for your own records.

A perfect example is the tragedy of 20-year-old Thomas Plotkin. In 2011, Mr. Plotkin was in India with the National Outdoor Leadership School, hiking with a heavy backpack in pouring rain next to a 300-foot ravine. He slipped on a wet rock and fell into the canyon, disappearing into a raging river. His body was never found.

Ms. Plotkin's mother sued the school in federal court, saying that Plotkin should not have been allowed to hike so far ahead of the school's leaders and that the school took too long informing authorities and a local village of Mr. Plotkin's disappearance. However, the federal judge, while sympathizing with the plaintiff, found on Friday that Mr. Plotkin had signed an agreement stating that he understood that what he was doing was dangerous. The judge said that because Mr. Plotkin promised not to sue the school in case he was injured in the inherently dangerous activities of the school, the mother could not either.

New York law is much the same; it is very difficult to prove negligence if someone is injured playing a sport (of which hiking is one), even if the injury "came out of left field." If you are injured playing a sport, be sure to speak with an experienced trial lawyer to discuss your rights and any potential claims you might have. The attorneys at Feldman, Kronfeld & Beatty are available to speak to you for a free consultation on the subject of sports or hiking injuries at (212) 425-0230 or at 

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