The complainant was employed by the metal sheet contractor as a journeyman sheet metal worker, whose responsibilities were to hang and install duct work through the supervision of the complainant’s foreman. On November 9, 2004, the complainant and his foreman went to the building in order to install a large piece of prefabricated duct work, known as gooseneck duct, below street level. According to the complainant, the gooseneck duct was the size of a car and was approximately six feet long, six feet wide, and five feet tall, and weighed between 110 and 125 pounds. The site where the gooseneck duct was to be placed was located below a series of about 40 metal grates that were in place on the ground. Each grate measure approximately two feet by four feet, and this grating covered an area of the ground measuring approximately 12 feet by 8 feet. The vault below the grating was approximately 15 feet deep.

In order to install the gooseneck duct below ground, the grating on the street level needed to be opened. The gooseneck duct was to be lowered through an opening in the grates in order to be installed below them.

Upon the complainant’s arrival together with his foreman at the job site, they met with a representative from the general contractor, The general contractor representative who showed them where the gooseneck duct was going to be installed in the area below the grates and told them to wait for the representatives of the buildings to see how they would go about installing it. A mechanic and an engineer, who were employees of the building met with the complainant and the foreman. The two building employees then told the complainant and his foreman that the gooseneck duct was going to be lowered though the grating, and asked the foreman which grate was to be opened. The foreman told the building employees which grate to open and the complainant and his foreman went back to their truck to unload the gooseneck duct. As the complainant and his foreman were unloading the gooseneck duct off the truck, the mechanic removed the grate by unbolting four clips that held the grate down, lifting the grate up, and leaning it back against the building. However, the mechanic did not open the grate that the foreman had requested him to open. Instead, the mechanic opened the grate in the far corner, creating an unprotected two feet by four feet holes.

In order to maneuver the gooseneck duct to the grating area, the complainant and his foreman had to take the gooseneck duct around a rectangular billboard sign, which was attached to posts that were bolted to the ground over the grates. They transported the gooseneck duct to the area of the billboard on a dolly, and, when they arrived at the billboard area, they removed the gooseneck duct from the dolly, and attempted to drag the gooseneck duct behind the billboard on the left side in the space between the billboard and the building. While the gooseneck duct was on the sidewalk over the grates and the complainant was attempting to pull it into position, he let go of the gooseneck duct and fell backwards down approximately 15 feet into the hole created by the open grate.

Consequently, the complainant filed the action against the property manager and the general contractor, seeking to recover damages for the personal injuries sustained by him due to his slip and fall. The complaint alleges claims of common-law negligence, and violations of Labor Laws. The general contractor and the property manager both interposed their answers and the property manager asserted cross claims against the general contractor. The general contractor filed a third-party action against the metal sheet contractor. The metal sheet contractor answered the third-party complaint and the general contractor filed a second third party complaint against the air conditioning contractor. The air conditioning contractor interposed its answer and served cross claims against the metal sheet contractor. The general contractor sought to voluntarily discontinue its second third-party action against the air conditioning contractor, but none of the parties, other than the general contractor and the air conditioning contractor agreed to sign and execute the stipulation of discontinuance. The complainant filed his note of issue upon the completion of discovery.

The complainant argues that he is entitled to summary judgment in his favor on his Labor Law claim. The Labor Law imposes liability upon owners and contractors and their agents who fail to provide or erect safety devices necessary to give reasonable and adequate protection and safety for workers engaged in construction work who are exposed to elevation-related hazards. The legislative purpose behind the enactment is to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect them from an accident. A Long Island Personal Injury Lawyer said it is well settled that Labor Law is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed.

In opposition to the complainant’s motion for summary judgment and in support of its motion insofar as it seeks summary judgment dismissing the complainant’s Labor Law claim, the property manager contends that the Labor Law is inapplicable to it because it was not the owner of the premises, a general contractor, or the agent of the owner or general contractor. However, a Brooklyn Personal Injury Lawyer said while the property manager was not the owner of the premises or a general contractor, a party can be deemed a statutory agent under the Labor Law and may be held vicariously liable as an agent of the property owner for injuries sustained pursuant to Labor Law where it had the ability to control the activity which brought about the injury.
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When the work giving rise to the duty to conform to the requirements of Labor Law has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent of the owner or general contractor. Indeed, it has been held that a property manager can be held liable under Labor Law as an agent of the owner.

The property manager argues that although it served as the property manager for the premises, it had no contractual relationship to the construction work which the complainant was performing. The property manager relies upon the fact that the general contractor’s contract for the project was with the tenant. However, it is unnecessary for the property manager to have it actually contracted for the work in order for it to be held liable under Labor Law.

The property manager also relies upon their mechanic’s deposition testimony that his supervisor, had told him to go up to the street level and open a piece of the grating for the tenant. Such deposition testimony, however, only supports the argument that the property manager was acting as an agent for the owner when its employee, the mechanic opened the grate for the complainant to install the gooseneck duct.

While the property manager argues that it did not supervise or control the complainant’s work, their employees, the mechanic and the engineer, were present at the work site. The property manager contends that the removal of the grate by their mechanic did not constitute supervision or control over the complainant’s work since it was the foreman who directed their mechanic to remove a particular grating. The foreman’s direction as to which grate to open, however, did not negate any independent duties which the property manager may have had under the Labor Law, or prevent them from assuming those duties and thereby becoming vicariously liable as an agent of the property owner.

With respect to the supervision and control of the property manager over the complainant’s work, the foreman testified, at his deposition, that a representative from the general contractor told them that they had to wait for somebody from the building to come and see how they were going to get the gooseneck duct into the building. The foreman further testified, at his deposition, that the people from the building then told them that they should bring the gooseneck duct down through the grating. Although according to the foreman, he told the people from the building which grate he wanted removed, the mechanic decided to open a different grate because he thought it would be the safest one, and neither the complainant nor the foreman was informed of it.

By opening the grating and thereby creating an open unprotected hole, the property manager, through its employees, exercised sufficient supervision and control over the complainant’s work so as to render it liable under Labor Law as an agent of the owner. While vigorously disputing the liability of the property manager, which is acknowledged to be an incorrect accused and not the owner of the premises, the company has acknowledged that it served as the property manager for the subject premises. Thus, as the agent for the owner, they would be liable to the complainant under the Labor Law. Thus, the property manager’s cross motion, insofar as it seeks dismissal of the complainant’s Labor Law claim, must be denied.

In opposition to the complainant’s motion for summary judgment in his favor, the property manager argues that the complainant is not entitled to summary judgment because there is a question of fact as to whether the complainant acts were the sole proximate cause of his injuries. Specifically, the property manager contends that the complainant was aware of the necessity for a grate to be removed so that the job could be carried out, but did not pay attention to the work of the employees. The property manager asserts that the complainant’s failure to pay attention is a sufficient ground to deny his motion for summary judgment.

The property manager's argument is rejected. Where a violation of Labor Law is a proximate cause of an accident, the worker's conduct cannot be deemed solely to blame for it. The law states that contributory negligence will not exonerate an accused who has violated the statute and proximately caused a complainant’s injury.

The general contractor and the metal sheet contractor, in opposition to the complainant’s motion, argue that Labor Law is inapplicable to the case because the complainant was not involved in any work related to an elevation differential, but was, instead, merely moving the gooseneck duct from one location on the ground to another and not attempting to lower it. The argument is rejected. Although the complainant was at ground level, the hole into which he fell was 15 feet deep, and, thus, there was an elevation differential. The purpose of the complainant’s actions, moreover, was to move the duct from ground level to the lower level through an opening in the grate pursuant to instruction. Traversing the ground where there was a 15 foot deep hole constituted an elevation-related risk covered by Labor Law.

The general contractor further argues that an opening created by the removal of a grate is akin to an opening created by the removal of a manhole cover. The Appellate Division in so holding, specifically noted that while Labor Law is applicable to work performed at heights or where the work itself involves risks related to differentials in elevation, the work in which the injured the complainant was involved in that case was wholly unrelated to an elevation-related hazard, the manhole in which he fell. Thus, the complainant’s injury was not a direct consequence of the performance of his work.

Doing our job sometimes exposes us to danger. If you are harmed or injured while at work, you can seek the services of Brooklyn Slip and Fall Attorneys together with Brooklyn Accident Lawyers. If you are unable to work and earn a living due to injuries at work, you may consult a Brooklyn Workers Compensation Lawyer from Stephen Bilkis and Associates.

A New York Injury Lawyer said a few seconds later, the dog jumped up on the 72 year old lady. The dog attacked the lady and she sustained a head injury when the dog bit off her left cheek. The lady then sued her landlord because he was negligent in enforcing the terms of the lease that no pets were allowed in the apartment building. She also sued the dog owner. She claimed that the dog owner knew or should have known that his dog had vicious propensities. He should have known that his dog attacks people.

Both the landlord and the dog owner filed a motion for summary judgment asking that the complaint against them be dismissed. The plaintiff also moved for a summary judgment asking the court to determine liability.

During the trial, the plaintiff presented evidence of newspaper reports and magazine articles that pit bulls are dogs with vicious propensities. A Suffolk County Personal Injury Lawyer said the trial judge took judicial notice that pit bulls were a vicious breed that is known to attack and bite people.

The dog owner and the landlord filed this appeal. The only issue before the Court was whether or not there were triable material issues of fact.

The Court first noted that the judge improperly took judicial notice that pit bulls are a vicious breed. The Court held that in order for judicial notice to be properly taken, the fact must be of such generalized knowledge that is so notorious that there can be no reasonable dispute.
The Court also held that there are many other sources or authorities that show put bulls do not have a vicious nature but that they have the capacity to be trained to become vicious. The existence of these evidence show that judicial notice should not have been taken by the trial court judge.

The Court held that the viciousness of a breed cannot substitute for evidence of the viciousness of a particular dog who is a member of that breed. There must be evidence that the specific dog itself was vicious. Evidence that viciousness must be specific to the dog who had bitten the child.

The plaintiff submitted evidence that five times prior to being bitten, he saw the dog owner and one of the dog owner’s sons walking the dog while it was on a leash. She testified that the pit bull appeared extremely strong as it was always straining at his leash. He looked like he had very sharp teeth.

The Court ruled that all this is not sufficient to prove that the dog owner knew or should have known that his dog had a vicious propensity. A Staten Island Personal Injury Lawyer said it does not prove that the owner knew his dog attacks and that the dog bites people. There is also no evidence that the landlord knew that his tenant had a dog with a vicious propensity.

Although there is evidence that the dog owner had been in violation of his lease because he kept a pet in his apartment despite the clear prohibition to keep pets, this violation of the lease does not show that the landlord was negligent. It does not show that the landlord knew that the dog had vicious propensities.
Thus, taking everything into consideration, there is no triable issues of fact that tends to show that the landlord or the pet owner knew or should have known that the dog had a vicious propensity.

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A New York Injury Lawyer said as the woman was walking on the sidewalk in front of the garage door, she slipped on ice and snow that had not been removed. Her weight was on her right foot when she suffered the slip and fall. She sustained personal injury and commenced a suit in damages against the owner of the property that abutted the sidewalk.

After discovery proceedings and before trial, the property owner moved for a summary judgment, asking that the complaint be dismissed for the failure of the plaintiff to show that there are genuine issues of fact that must be heard by a jury.

The defendants offered preliminary evidence that they cleared or attempted to clear the snow from the sidewalk in front of their garage to prevent the slip and fall. They did not create or worsen what could have been a dangerous or hazardous condition on the sidewalk.

The plaintiff naturally opposed the motion for summary judgment. She claimed that the homeowner made special use of the sidewalk as access to their driveway and garage. She also contended that the use of the homeowner of the sidewalk caused or created the icy condition on the sidewalk and caused the woman to slip and fall. She also claimed that dangerous condition is that the ice covered the cracked surface of the sidewalk that had a hole in it.

The only question before the court was whether or not there are material issues of fact that still remain and that can only be tried by a jury. A Staten Island Personal Injury Lawyer said the Court ruled that the homeowner was entitled to the summary judgment they moved for as there are no more issues of fact that must be tried.

The Court first of all stated that there is no duty on the part of the homeowner to keep the public sidewalk in front of his house in a safe or passable condition. The reason for this rule is that the homeowner does not own or control the public sidewalk. The Court further stated that there is however a legal duty imposed upon landowners whose properties abut a sidewalk to refrain from acting negligently and creating dangerous conditions or obstacles. If the homeowner takes it upon himself to repair the sidewalk that abuts his property, he may be liable for injury caused to others by the shoddy repair job. When the landowner benefits from a use of the sidewalk, a legal duty also arises for the homeowner to maintain the sidewalk with due care for the safety of passersby.

There is no allegation or evidence that the homeowner in this case acted negligently in such a way as to have created a dangerous condition or obstacles on the sidewalk. There is no allegation or evidence that the homeowner has derived a benefit from the sidewalk or has undertaken the duty to repair the sidewalk for the purpose of benefiting from the sidewalk. There is no shoe showing that the homeowner has constructed a special feature on the sidewalk although they may have regularly used it to get into and out of their garage.

There was no allegation or showing that the homeowner caused the ice to form on the sidewalk. A Queens Personal Injury Lawyer said from all indications, the ice was a natural occurrence. The woman who sustained injury was unable to show that the homeowner ever cleared the sidewalk or attempt to clear it thereby causing ice or snow to accumulate on the sidewalk.

The motion for summary judgment in favor of the homeowner is granted and the complaint is dismissed.

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On that night that seven boys were at the house for the sleep over on December 31, 1998, one of the boys went down to the kitchen to use the bathroom. The family pet barked at him. The boy was not afraid. He went to the bathroom and he was already on his way back up to his friend’s room when he saw his friend’s mother with the dog.

Whenever there were visitors to their home, the family kept the dog fenced-in in the kitchen as he barked when he saw the guests. As the boy was going back up the stairs, his friend’s mother called him over and told him to put his hand out so the dog can smell him. The mother told him that the dog will remember that he had been to their house before. The boy was not afraid as his friend’s mother had the dog on a leash. When the boy reached out to the dog, the dog lunged at the boy and bit him. The boy sustained a head injury because of the dog attack.

The boy’s mother then sued the dog’s owners. At the trial, it was stipulated that the attack and dog bite was unprovoked. The parties testified that they had no knowledge that the dog had ever previously threatened or bitten any other person.

The dog’s owners moved for a summary dismissal to dismiss the complaint for damages for failure to state a cause of action. A Bronx Personal Injury Lawyer said the dog owners argued that the plaintiff failed to prove that the dog had vicious propensities. They claim that the plaintiff failed to prove that the owners knew or should have known that the dog had vicious propensities. The plaintiff argued that the dog owners knew of the vicious propensities of their dog or they would not have fenced him in. The judge found for the plaintiff and ordered the dog owners to pay damages.

On appeal, a Brooklyn Personal Injury Lawyer said the Appellate Division ruled that the plaintiff failed to raise a material issue of fact that the dog owners were aware that their dog had vicious propensities. Hence, this appeal was brought before the Supreme Court of New York.

The only issue before the Supreme Court was whether or not there is a triable material issue of fact that the dog owners had knowledge that their dog had vicious propensities.
The Court affirmed the Appellate Division’s dismissal of the complaint.

The Court ruled that the law of the state has been consistently applied that the owner of a dog who knows or should have know of his animal’s vicious propensities shall be held liable for the harm caused by the animal because of those vicious propensities.

The Court ruled that vicious propensities meant that the dog attacks and the dog bites. It had a propensity to act so as to endanger the safety of persons and property of others. The evidence that the dog owner knew of the dog’s vicious propensities is if there had been prior acts of a similar nature which was known to the owner.

Evidence that the dog had been known to growl, snap or bare its teeth is enough to show that the dog had vicious propensities. Evidence that the owner restrained the dog is also acceptable to prove vicious propensities. Even if the dog has not bitten anyone before, if it can be proved that the dog acts in a way that puts others at risk of harm is enough to prove vicious propensities.

In light of all the evidence presented, the Court held that there was no material issue of fact raised that the dog had vicious propensities that were known or should have known to the defendants.

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After her slip and fall, she cleaned up herself and limped out of the bathroom. As she left, she saw a yellow caution (wet floor) sign outside the bathroom area. The sign was folded near the wall of the men’s bathroom.

She reported her slip and fall to the store manager. From the store manager the lady learned that the bathroom had just been mopped not half an hour before her slip and fall. She also learned that there was no regularly scheduled cleaning of the bathrooms; any regularly scheduled inspection of the bathrooms. A New York Criminal Lawyer said the store manager informed her that he had not received any information that a puddle of water existed near the sink in the ladies’ bathroom.

After discovery, the fast-food burger joint filed a motion for summary judgment alleging that it had no notice that a puddle had formed in the ladies’ bathroom and it did not have any opportunity to clean or prevent the puddle from becoming a dangerous condition.

The only question before the court is whether or not there are still issues of fact that need to be tried by a jury. A Nassau County Personal Injury Lawyer said the Court ruled that it is a law that owners of establishments must keep their premises reasonably safe for its customers, and avoid putting them at risk of serious personal injury. However, the law also puts the burden on the plaintiff to show that the fast-food establishment acted negligently and created the puddle, or, that it had actual or constructive notice off the puddle which caused the slip and fall injury and yet, it chose to do nothing.

In this case, since it is the fast-food burger joint that filed a motion for summary judgment, it has the burden of proving affirmatively not only that it did not create the puddle, it also has the burden of proving that it had no actual or constructive notice that the puddle existed.

The Court rejected the fast-food burger joint’s claim that it could not have known about the puddle as no one complained of it and that they could not have learned about it as there were no regular inspections in the bathroom. A Manhattan Personal Injury Lawyer said the Court notes that the fast-food burger joint is a popular fast-food chain that has a lot of people so it defies all belief that clean-ups and inspections are only conducted as needed when a customer complains.

The fast-food burger joint claims that the woman who used the bathroom just before the plaintiff used the bathroom could have created the puddle. Even if another customer created the puddle, still the fast-food burger joint cannot be relieved of its responsibility to positively show that it had not created the puddle and it had no notice of the existence of the puddle.
The fast-food joint’s motion for summary judgment motion is denied and the parties are directed by the Court to report for jury selection in preparation for trial.

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One case that occurred in a New York building in Queens County on May 26, 2010, involved a man who fell going down the stairs in the building. He filed an action to recover damages for the personal injury that he sustained. However, when he testified under oath, he stated that he did not know what happened when he fell. He stated that one minute he was putting his foot down and the next that he was flying up into the air. He stated that he did not remember the fall and could not state if his foot hit the stair before he fell or not. All that he was able to recall was that he had been going down the stairs and then he tripped and fell (trip and fall).

They were able to show in court that the engineers report stated that there were unsafe conditions in the staircase where the accident occurred. However, the defendant did not connect these unsafe conditions to his accident. Because he failed to connect the unsafe conditions with any reason as to the cause of his accident, the court is unable to presume that the unsafe conditions were the cause of the accident. The law states that it is the complainant’s responsibility to show the court that the accident was a result of negligence or treachery. A Nassau County Personal Injury Lawyer said that in this case, when the complainant gave his deposition to the court, he did not make that connection. Merely presenting a situation that might have been the cause is not enough to raise a triable issue of fact in a court of law.

The building owner’s attorney specifically asked the complainant in the deposition if the fall was caused by the step being slippery or if the step was cracked and that may have caused the complainant to fall. The complainant stated that he did not know. That means that the fall could have occurred as the building owner’s attorney suggests by the man simply misstepping. The fall could have been caused by a loss of balance. If these are the causes for the injury, then the building owner is not responsible. The fact that there are unsafe conditions present is not relevant unless it can be shown that these unsafe conditions contributed to the fall. A New York City Personal Injury Lawyer said if the man had testified that the step was cracked, and had given way beneath him, and the engineer’s report stated that the step was in deed cracked, then there would have been a triable issue of fact. This did not prove to be the case in this accident where the man could not remember exactly what had caused him to fall.

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The ball field was maintained by the town of North Hempstead. The town hired a team of groundskeepers whose job was to inspect the ball field and to maintain it. Records produced by the town government show that on the morning of May 14, 2007, the groundskeepers inspected the ball field and did not see any cover of any water main valve as loose or as having slid off or missing. There were no reports of any uncovered holes around the ball field. There was no report or notice of any hole around the ball field.

The Town of Hempstead moved for summary dismissal of the cause of action filed by the Dad on the ground that there was no proof that the Town was negligent; that its negligence created or exacerbated the dangerous condition claimed by the Dad to have caused his slip and fall or his injury. There was no proof offered that would show that the Town of Hempstead had constructive or actual notice of any dangerous condition which they negligently ignored.

The trial court denied the motion for summary judgment filed by the Town of Hempstead. A New York Injury Lawyer said the court below reasoned that the Town failed to meet its burden of proof in showing that it was entitled to the summary judgment.

The Town appealed the court’s denial of its motion for summary judgment. The only question before the Court to decide is whether or not the denial of the motion for summary judgment was properly denied.

The Court ruled that the trial court acted improperly in denying the motion for summary judgment. The Court noted that the Town submitted copies of its official records. It provided acceptable evidence in the form of deposition testimony and affidavits of its groundskeepers. It submitted performance and maintenance data of the inspection regularly conducted by its employees and the inspection and maintenance log conducted on the morning of the game.
All these pieces of evidence tend to show that the Town had no actual or constructive notice of any defect on the grounds or of the existence of any dangerous condition on the grounds. A Nassau County Personal Injury Lawyer said these pieces of evidence also show that neither the Town nor its employees created the dangerous condition or exacerbated an existing dangerous condition.

The Town also presented an affidavit of the Commissioner of the Department of Parks and Recreation showing that from its records, the Town has not received any complaints of any defects or dangerous conditions on the ball field within three years from the date of the Dad’s supposed slip and fall.

All these pieces of evidence indubitably show that the Town has established that it is entitled to a dismissal of the complaint against it. A Manhattan Personal Injury Lawyer said the Court also held that against this prima facie case of entitlement to a dismissal, the Dad was unable to raise any issue of material fact that needs to be tried before a jury.

The Court reversed the order of denial of the motion for summary judgment and entered an order of dismissal of the complaint against the Town of Hempstead.

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The manager of the store ran over and began to yell at the cashiers that they should have cleaned up the mango mess. He berated them for not seeing the problem and taking care of it. He stated that it was part of their jobs to watch for spills and to clean them up as fast as possible. The cashiers claimed that they had not noticed the mango slices on the floor in spite of the fact that the mango was just a few feet away from the cash registers. When the store manager was notified of the incident, he was advised by the attorneys to secure any videotaped footage of the incident that might be on the store’s surveillance cameras. The store was equipped with numerous cameras covering the second floor where the accident occurred. The store manager verified that he had the incident on tape and was told to preserve it for court. He stated that he secured it in the safe. However, a few months later, he advised that it was not available for court because the tape had been destroyed.

The destruction of the evidence on the tape was disconcerting to all involved. The court is left to presume that the tape showed where the dropped fruit had come from and how long it had been on the floor before the accident occurred. A Brooklyn Personal Injury Lawyer said it would also have shown the accident itself. The fact that the tape has been destroyed raises more questions than it answers. The store manager maintains that it does not matter how long the fruit was on the floor because no one employed by the store was aware that the problem existed. Since there was no constructive notice given to the store employees about the damaged fruit on the floor, the manager maintains that he is not liable. Both parties agreed that sliced mangoes are sold outside of the store on a regular basis. They are served pierced on a stick so that they are easy to carry. The store has a policy that prohibits food or beverages inside the store. However, none of the employees saw anyone enter the store with the mango stick.

The store manager filed a request for summary judgment to dismiss the case against him. He claims that he did not have constructive notice that there was a hazard on the floor and that it needed to be cleaned up. A Bronx Personal Injury Lawyer said that he stated that he should be granted summary judgment because the policies are in place, and there is no evidence that the mango pieces had been on the floor long enough for the store owner to be held liable for them.

Stephen Bilkis & Associates has Personal Injury Lawyers in convenient offices throughout New York and Metropolitan area. Do not suffer if you were injured because of the negligence of others. Personal Injury Attorneys can provide you with advice to guide you through any injury. Any time that a person is injured because of the negligence of others, it is important that they obtain an attorney’s advice. By reporting a hazardous situation it is possible to help protect other people from becoming injured by the same or similar circumstances.

The defendant has filed a motion for summary judgment in his favor dismissing the complaint against him. He maintains that there was no snow accumulated in front of his residence. He and his wife testified that they shovel the snow in front of their residence as soon as the snow accumulates there. They maintain that they were never notified by the city that there was an accumulation in front of their home that needed to be removed. Queens Personal Injury Lawyer they further stated that until the notice to appear in court, they did not know anything about anyone falling in the snow.

In support of their claims, the defendant produced climatological reports for the two weeks prior to the incident. The woman claimed that she had noticed the ice on the sidewalk in that location a couple of weeks before and that the defendant’s had failed to remove the ice. The defendant’s refute that claim by stating that after shoveling snow, they are always conscientious about applying salt to the sidewalk to make sure that ice does not form. The climatological reports showed that while it got down below freezing at night on several of the nights, prior to the snowstorm of that date, the days were warm and any snow or ice that was on the ground would have melted. Since this evidence creates an atmosphere of doubt surrounding the survival of any ice on the sidewalk for two weeks prior to the accident, it is doubtful that the woman tripped on any old ice.

Since the weather was too warm for the preceding two weeks for ice to have remained on the ground, the ice that was on the ground must have been fresh or recent ice. The woman claimed that on her way home the night before at about eight in the evening, it was snowing and hail was falling. Because the snow and ice had fallen all night, and the woman herself stated that there was about five inches of snow on her own banister, it is reasonable to assume that the snow and ice that caused her to fall had occurred overnight and in the early morning hours. Staten Island Criminal Lawyer said that means that the defendants did not have a reasonable amount of time to shovel the sidewalk before the woman walked down it. The court found in favor of the defendants and granted a summary judgment to dismiss the case against them.

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The materials basket is a canvas basket that is used to raise and lower tools when they are needed. The helper told the foreman that it would not be a good idea, but the foreman ignored him. The bricklayer got into the canvas basket and the helper began to lower him to the ground. A Nassau County Personal Injury Lawyer said he was lowered about one half of a building story before the ropes gave way and the basket fell two stories to the ground below. The bricklayer was wearing a safety harness that was attached to the scaffolding, but it did not stop his fall. He sustained significant injury in the fall and filed a lawsuit against the construction company and the foreman.

This lawsuit is based on the fact that the foreman used negligence in insisting that the bricklayer use the materials basket to get to the ground to go to the bathroom rather than lowering the scaffold. This is a clearly dangerous practice and one that a reasonable man would consider hazardous. The construction company foreman disagreed.

The foreman denies ever telling the bricklayer that he should use the materials basket to lower himself. He maintains that the bricklayer took it upon himself to take that action and his subsequent injury is his own fault and not the fault of the foreman who did not give him permission for such a fool hardy stunt.

The bricklayer’s wife also filed suit. Her suit alleges that she deserves compensation from the construction company because of loss of consortium. Basically, she is claiming that because her husband is injured, they are not able to continue on as man and wife. She believes that she should be compensated for that lack of consortium. A Long Island Personal Injury Lawyer said he and her husband filed a motion requesting a summary judgment of liability against the construction company because the labor laws of New York state that anyone working at an elevated height who is injured due to negligence of the company or building owner because his safety harness did not prevent his fall. He was not in violation of any orders made by his supervisor so the law says that he is entitled to summary judgment.

The owner of the construction company contends that the foreman’s request for a summary judgment should be denied because the foreman testified that he did not refuse to lower the scaffold and that he knew nothing of the bricklayer’s intentions to ride the materials basket down to the ground. They maintain that his conduct caused the accident and that he should be considered a “recalcitrant worker” as described in the code section. A recalcitrant worker is one that is aware of the necessity for using the safety harness and lines, but who refuses to use them. The company states that this is reason for dismissal of the summary judgment request made by the bricklayer.

The Supreme Court reviewed the facts of the case and determined that the foreman’s testimony in reference to the fact that the bricklayer was wearing his harness and safety line at the time of the accident undermines the contention by the company that he is a recalcitrant worker. The request for summary judgment in favor of the bricklayer was approved. The motions from the company were dismissed. The motion from the wife for compensation from lack of marital consortium is also dismissed for lack of cause.

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During the hearing, the Court was able to observe a wound on the victim's hand. Photographs were admitted into evidence depicting two large and seemingly deep penetrating wounds on the victim's thigh. Other photographs were admitted into evidence showing that pieces of human flesh and fatty tissue had been ripped from the victim's body. Furthermore, it is apparent that blood was dripping from the roof of the vehicle and down the windshield. Moreover, it is apparent to the Court that the blood was that of the victim. It should also be noted that paw prints were depicted on the hood of the freshly washed car.

The primordial concern here is whether a rational person could assume that the behavior of the victim could reasonably believe that his actions could be anticipated to be interpreted as violent, threatening or tormenting the subject dog or dogs. In this case, the victim was merely washing his car, on his own property. A Queens Personal Injury Lawyer said the Court must, in this case, take Judicial Notice that dogs are pack animals and that notwithstanding the fact that the victim is not sure which or how many of the subject Rottweilers actually bit (dog bite) him, he is certain that they all chased him and all acted together in the attack.

Undoubtedly, the Court finds that there is clear and convincing evidence that the attack on the complaining witness by his neighbor's dogs was unjustified and unprovoked; that the subject dogs are dangerous dogs within the meaning of Agriculture and Markets Law.
Effective 15 December 2004, Agriculture and Markets Law and related statutes were extensively amended. First, the definition of a "dangerous dog" was expanded to include: any dog which (i) without justification attacks a person, companion animal, farm animal, or domestic animal, and causes physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons, companion animals, farm animals, or domestic animals or (iii) without justification attacks a service dog, guide dog, or hearing dog and causes physical injury or death".

Once a judge or justice determines that a dog is dangerous by clear and convincing evidence, then, pursuant to the new version of Agriculture and Markets Law, the judge or justice shall order neutering or spaying of the dog, microchipping of the dog and one or more of those provided by law as deemed appropriate under the circumstances and as deemed necessary for the protection of the public.

Once a Court determines a dog to be "dangerous", the aforementioned conditions must be imposed by the Court. In addition to these requirements, Agriculture and Markets Law continues to provide that under certain circumstances humane euthanasia or permanent confinement of a dog may also be directed. A Staten Island Personal Injury Lawyer said the statute makes it clear that prior to euthanasia or permanent confinement, aggravating circumstances must be established at the judicial hearing.
In the instant case, the Town seeks to have all three dogs humanely euthanized; emphasizes that the less drastic measures are not appropriate; contends that the injuries suffered by the complaining witness are "serious injuries" as that term is defined in New York Agriculture and Markets Law.
However, an examination of the statute reveals that none of the aggravating circumstances are present in the herein case which would justify an order directing the euthanization of the dogs.
The first aggravating circumstance is that the dog unjustifiably attacked a person, causing "serious physical injury or death".

It must be noted that serious physical injury, as defined in Agriculture and Markets Law, is "physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ". The definition of serious physical injury is essentially the same.

Based on the evidence, the court concludes that the injuries sustained by the complaining witness do not meet the threshold.

The testimony revealed that the complaining witness sustained a bite wound to his right leg, for which he was prescribed antibiotics, a small bite to his hand and missed several days of work because of the injury. There is no doubt that the complaining witness’ injuries caused him pain and suffering. The injuries were supported by the photographs presented. Nonetheless, the standard is not whether the complaining witness’ thigh and hand were injured, but rather whether those injuries rise to the level of a serious injury' as that term is defined in Agriculture and Markets Law and New York case law.

The court finds that there was no evidence that the complaining witness sustained "protracted impairment of health", a "protracted disfigurement" or a "protracted loss or impairment of a function of any bodily organ" as a result of the. Accordingly, the first aggravating circumstance has not been met.

The second aggravating circumstance is that the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death". This aggravating circumstance also was not established at the hearing. Although a witness testified that one or several of the respondents' dogs had once chased the complaining witness’ children and wife such that they ran back inside their home, that witness did not sustain any injuries as a result of that incident, let alone a serious physical injury.

Finally, the third aggravating circumstance is that the dog unjustifiably causes "serious physical injury or death to a companion animal", is inapplicable in this case.

By reason that none of the three aggravating circumstances exists in the case at bar, the Court lacks the authority to direct humane euthanasia or permanent confinement, despite its strong belief that euthanization is the appropriate remedy. Rather, the court orders that certain conditions be met for all the three dogs: that the dogs shall either be neutered or spade (whichever is applicable) and each dog shall be fitted with a microchipping device; that the dogs be immediately evaluated by a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert; that the owner of the dog shall be responsible for all costs associated with evaluations and training ordered; that there be restraint of the dogs on a leash by an adult of at least twenty-one years of age whenever the dogs are on public premises; that muzzling the dogs whenever they are on public premises in a manner that will prevent the dogs from biting any person or animal, but that shall not injure the dogs or interfere with its vision or respiration, must be observed; that the respondents take all necessary steps to comply with Agriculture and Markets which requires owners of dangerous dogs to report the presence of a dangerous dog pursuant to the General Municipal Law; that the respondents maintain a liability insurance policy in an amount of one hundred thousand dollars for personal injury or death resulting from an attack by such dangerous dog.

Caring for animals doesn’t only require feeding them, bathing, etc. It requires a great deal of responsibility; that the animal must not be a danger to the people around. To learn more of the rights that can be exercised when animals pose a certain danger to your health or safety or when an injury has already been sustained, contact Stephen Bilkis & Associates. Whether you have been hurt in a car accident, a construction accident or medical malpractice incident, contact us for help.