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Labor Law, Part 4

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3 October 2013
Construction Accidents


An often overlooked aspect of personal injury litigation is choosing which venue to bring your case.  In construction accident cases, there are often several defendants, and accordingly plaintiffs often have the choice of two or more proper venues in which to bring their case.  In New York City, this could prove to be a very important decision.

New York and Bronx Counties (Manhattan and The Bronx) are part of New York State’s First Judicial Department, while Kings and Queens Counties (Brooklyn and Queens) are part of New York State’s Second Judicial Department.  Each judicial department has its own appellate court.  The appellate courts are the courts responsible for hearing appeals, and interpreting the meaning of various laws.  Decisions of the appellate courts that interpret the laws become precedent and the courts below them (in their judicial department) have to follow their appellate court’s interpretation of the law.

In most cases, the Judicial Departments agree with each other (i.e. they interpret the law the same way).  However, there are issues where the Judicial Departments do not interpret the law exactly the same, and even some where they disagree on the interpretation of the law completely.  Therefore, it is important for your personal injury attorney to consider the applicable law when deciding where to venue your case.

For example, the Courts have often disagreed as to what actions are necessary parts of construction work under Labor Law §240.  Labor Law §240 protects workers who are performing construction work and who are injured from a height related accident.  Exactly what constitutes construction work, however, has been dissected by the Courts for years.  In the following cases, you can see how the First Department and Second Department disagree on a certain issue, and why it is important to be aware of the differences between the departments when choosing a venue for your case.

In a recent First Department case, a worker was on his lunch break when he was walking across a sidewalk bridge and a parapet wall collapsed on him causing him injuries.  The defendants argued that because the plaintiff was not performing work at the time of his accident, that Labor Law §240 could not possibly apply.  The plaintiff worker disagreed, arguing that he would ultimately have to return to the sidewalk bridge since it was used as a staging area for the work and thus it needed to be a proper protected and maintained at all times.  The First Department agreed with the plaintiff and held that his accident was within the scope of Labor Law §240 because even though plaintiff was not performing work at the moment of his accident, he was properly on a jobsite for the purpose of construction work, and the thus the jobsite should be protected from height-related hazards.

Conversely, in a recent Second Department case, a worker was injured on his lunch break after completing the hot-tarring of a roof, before beginning the construction of an expansion of the roof.  The Second Department held that his accident did not fall under the protection of Labor Law §240, because the worker was not performing protected work at the time of his accident.  The Second Department held that the hot-tarring and expansion construction were two separate jobs, and thus the plaintiff worker had ended one job, but had not started the second job when the accident occurred, and was thus not entitled to protection under the statute.

If the second case had been venued in the First Department, the Court surely would have held that his accident was protected work under Labor Law §240, even though he was on his lunch break at the time of the accident.  He was properly on the jobsite at the time of his accident, as part of an overall construction project on the roof of the building.

Thus it is of the upmost importance that injured workers consult with experienced construction accident attorneys who are up to date on the interpretations of the law in all the Judicial Departments.  Choosing the right venue can be the difference between winning or losing your case



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