NYSTLA Court Victory

NYSTLA is pleased to announce its most recent victory on behalf of the plaintiffs' bar in the New York Court of Appeals in Misicki v. Caradonna, 2009 Slip Op. 3764 (May 12, 2009). David Perecman, Esq. represented plaintiff Igor Misicki, who sustained injuries while using a defective electric grinder/saw at a construction site. Misicki could not properly hold and control the grinder/saw due to a missing handle. Therefore, the grinder/saw kicked back causing the saw's blade to strike Misicki's face, resulting in severe facial lacerations. An action was commenced pursuant to Labor Law 241(6), alleging the owner of the construction site was vicariously liable for its subcontractor's violation of New York State Industrial Code Section 23-9.2(a).

NYSTLA Amicus Committee Member Joshua Annenberg, Esq., drafted an amicus curiae brief to the Court of Appeals. In it, NYSTLA advanced the argument that the Court of Appeals should interpret New York State Industrial Code 23-9.2(a), concerning the inspection, maintenance and repair of power equipment, as a specific positive safety command supportive of a Labor Law 241(6) action. In so holding, the Court of Appeals resolved disparate rulings from the Appellate Division and provided construction workers with additional safety protections under Labor Law 241(6).

Reversing the Appellate Division, Second Department, and reinstating Misicki's action, the Court of Appeals engaged in statutory construction and parsed the language in Industrial Code Section 23-9.2(a). Accordingly, the Court of Appeals held that the specific safety command in the regulation's third sentence prevailed over the general terms used in the prior sentences. Thus, the Court of Appeals held the third sentence of Industrial Code Section 23-9.2(a) "imposes an affirmative duty on employers to 'correct [] by necessary repairs or replacement', 'any structural defect or unsafe condition' in equipment or machinery '[u]pon discovery' or actual notice of the structural defect or unsafe condition." Misicki, 2009 Slip Op. 3764 at *7. The Court of Appeals, therefore, concluded that "an employee who claims to have suffered injuries proximately caused by a previously identified and unremedied structural defect or unsafe condition affecting an item of power-operated heavy equipment or machinery has stated a cause of action under Labor Law � 241 (6) based on an alleged violation of 12 NYCRR 23-9.2 (a)." Id.

NYSTLA extends its thanks to Joshua Annenberg, Esq. for drafting an outstanding amicus curiae brief to the New York Court of Appeals and congratulates David Perecman, Esq. on a successful principal brief and oral argument.

Full Amicus Brief

The Assembly Labor Committee is Again Considering Anti-Worker Measure

The Assembly Labor Committee is considering A.1895, a bill which would amend the Civil Practice Law and Rules to provide that damages for personal injury, injury to property or wrongful death pursuant to Labor Law ��240, 241(1)-(5) and 241-a shall be subject to a comparative negligence standard under certain circumstances. NYSTLA has repeatedly and consistently argued that this bill would undermine the protections of New York's Scaffold Law -- one of the most effective and important workplace safety statutes in the Nation.

Click below for more information and facts about this bill and Labor Law 240.

For more information on joining NYSTLA's Labor Law Committee, please send an e-mail to Larry Park.

A.1895 Bill Text

A.1895 NYSTLA Memo in Opposition

Payment of Workers' Compensation Awards in One Lump Sum

This year NYSTLA strongly supported A2021, a workers' rights measure introduced by Assemblymember Susan John (D-Rochester). The bill aims to eliminate incremental workers' compensation payments to injured workers by mandating that they receive lump sum payment. The bill overturns the Court of Appeals' decision in LaCroix vs. Syracuse Executive Air Service, 8 N.Y.3d 348 (2007), which held that the lump sum payments were in direct contravention of Workers' Compensation Law (WCL) � 25. The bill passed the Assembly on June 17, 2009, and the Senate on July 16, 2009. The bill was signed into law by Governor Paterson on August 28, 2009.

NYSTLA is proud to have supported this legislation giving injured workers discretion to invest their awards as they deem appropriate.

A.2021 Memo in Support

OSHA Careless in Regulatory Work

With workplace injuries on the rise, protecting workers is an issue that needs to be addressed. The below articles are further evidence that when it comes to safety liability, OSHA cannot be trusted, and holding employers accountable is the only way to protect workers.

February 02, 2009

� Bloomberg Calls for Federal Crackdown on Bogus OSHA Classes Daily News

February 01, 2009

� OSHA Course is Almost as Easy as Falling Off a Bar Stool

Daily News

February 01, 2009

� Corners Cut and Beers Downed at Fed-Run OSHA Classes

Daily News

April 25, 2007

� OSHA Leaves Worker Safety in Hands of Industry NY Times

October 18, 2005

� Study Finds Lax Safety Standards at Construction Sites

NY Times

September 3, 2004

� Scaffold law works - don't undermine it Daily News

NYSTLA Court Victory

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