Thanksgiving Week brought two Court of Appeals decisions declining to apply the strict liability of New York State Labor Law §§ 240(1) and 241(6).  In the first case the Court held that  these Labor Law sections are pre-empted by section 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA). In the second case the Court held that the defendants homeowners did not exercise sufficient direction and control over plaintiff’s work to overcome the one or two-family dwelling exception found in Labor Law §§ 240 and 241.  The first case is discussed in this blog post; the second will be discussed in Part 2 of this blog entry. (more…)

Drop-side cribs with plastic hardware were recalled and banned all in one day – this past Tuesday, November 24, 2009. The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Stork Craft Manufacturing Inc., of British Columbia, Canada, this announced the voluntary recall of more than 2.1 million Stork Craft drop-side cribs, including about 147,000 Stork Craft drop-side cribs with the Fisher-Price logo. The dangers to infants include suffocation and falls if the drop-side either separates from the mattress, creating a gap, or falls off of the crib.  The recall involves only those cribs with plastic trigger and one-hand-system drop-side hardware. It does not involve any cribs with metal rod drop-side hardware.  (more…)

Effective today, to decrease children’s risk of injury or death in a motor vehicle crash, the upper age limit of New York State’s child restraint law is being raised to require that all children are restrained in an appropriate child restraint system while riding in a motor vehicle until they reach their 8th birthday.  Since March 27, 2005, this law applied to children aged 4 to 6. Before then, the law required children in this age group to use only adult safety belts.  New York’s occupant restraint law is set forth in section 1229-c of the Vehicle and Traffic Law: Operation of vehicles with safety seats and safety belts. (more…)

In 720-730 Fort Washington Ave. Owners Corp. v. Utica First Ins. Co., — N.Y.S.2d —-, 2009 WL 3645656 (N.Y.Sup. 2009), an insurance policy was purchased to protect against injuries sustained by workers injured during roofing work. Somehow, the policy included three exclusions: an employee exclusion, an exclusion for roofing work, and an exclusion for any liabilities assumed under contract or agreement. Sure enough, during the construction work, an accident occurred in which an employee of the subcontractor was injured when a concrete block allegedly fell on him. The insurance company disclaimed coverage based upon the three exclusions and the building owner commenced a declaratory judgment action.  (more…)

The Child Passenger Protection Act, now known as Leandra’s Law, discussed in our recent blog entry of November 9, was signed into law by Governor David A. Paterson on November 18, 2009.  The legislation makes it a felony for individuals to drive while intoxicated or under the influence of drugs (DWI) with children in the car. Previously, this was considered a misdemeanor offense and could be treated as a traffic violation. The law also marks the first time that New York State has mandated ignition interlocks for all misdemeanor and felony DWIs. (more…)

Under New York’s “Son of Sam” law, a crime victim has the right to bring a civil action to recover money damages from a person convicted of perpetrating that crime within 3 years of the discovery of any profits from the crime or funds of the convicted person. The law states that the first 10% of compensatory damages awarded by judgment to the convicted person is exempted from execution or enforcement. In New York State Crime Victims Bd. ex rel. Thompson v. Gordon, — N.Y.S.2d —, 2009 WL 3380603 (3 Dept., 2009), an convict serving a lengthy prison sentence reached a $150,000.00 settlement of his medical malpractice case. (more…)

Highgate LTC Management, LLC, a limited liability company, operated Northwoods Rehabilitation and Extended Care Facility (“Northwoods”) in Cortland County.  Following a 2005 investigation into the care of a patient at Northwoods who was in a persistent vegetative condition, five of its employees were convicted of various crimes relating to their failure to provide required care to that patient, despite stating in facility records that such care had been provided. The operator of the nursing home was subsequently charged in an indictment with six counts of willful violation of health laws and three counts of falsifying business records in the second degree, arising out of its employees’ treatment of the patient. Following a jury trial, Northwoods was convicted as charged, sentenced to a one-year conditional discharge prohibiting it from operating nursing homes in New York, and fined $15,000.  Northwoods appealed, and the Appellate Division, Third Department affirmed in People v. Highgate LTC Management, LLC, — N.Y.S.2d —-, 2009 WL 3380029 (3 Dept. 2009). (more…)

Governor David A. Paterson has submitted legislation, known as The Child Passenger Protection Act, to increase penalties on those who drive while intoxicated (DWI) with children in the car.  The Act would make it a felony for individuals to drive while drunk or under the influence of drugs with passengers under the age of 16. Currently, such an offense is considered no more than a misdemeanor and may be treated as a traffic infraction.   In light of the recent fatal accidents involving Diane Schuler on the Taconic State Parkway and Carmen Huertas on the Henry Hudson Parkway where children were essentially captives in vehicles being driven by adults the children knew had something wrong with them, passing the law seems like a no-brainer. (more…)

Eduardo Henriquez is the father of an infant who he removed from the car of Carmen Huertas when he learned that she was about to drive drunk with the infant in the vehicle. He did not remove any of the other 7 children in the car. Ms. Huertas then allegedly drove off quickly, bragged to the children pleading for her to slow down that she would go even faster once they got on the highway, and then lost control of her car on the Henry Hudson Parkway, swerved off near the West 96th Street exit, flipped over and rolled several times before slamming into a tree. The car flipped several times before coming to rest on the shoulder of the road. Three children were ejected from the car. 11-year old Leandra Rosado died within minutes of the crash. One other girl, Yiselle Rosario, was hospitalized.  (more…)

TASER Training Bulletin 15.0 Regarding Medical Research Update and Revised Warnings, released on October 12, 2009, removed a person’s chest from the preferred target area for the 50,000-volt weapon. The bulletin said that hitting a suspect in the chest from the stun guns could cause an “adverse cardiac event.” It marks the first time the company has suggested there is any risk of a cardiac arrest related to the use of Tasers. But three days later, Taser International released an addendum to its training bulletin stating that its recommendation has less to do with safety and more to do with effective risk management for law enforcement agencies (more…)