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Defendants in Labor Law 240(1) cases are trying to use the deci-sion of the Court of Appeals in
Blake v. Neighborhood HousingServices of New York City 
, 203 WL22998497 to defeat motions forsummary judgment, saying thatthere must be a articulated viola-tion of Labor Law 240(1) beforethe Court should grant summaryjudgment.This article will review whatspecific violations of Labor Law240(1) can be establish when aladder falls at a construction site,as in the Blake case. There is noreason in most situations for theBlake case to prevent a court fromgranting summary judgment in mostladder and scaffold cases.The Court of Appeals stated in
Blake
that “[o]nce the plaintiffmakes a prima facie showing theburden then shifts to the defendant,who may defeat plaintiff’s motionfor summary judgment only if thereis a plausible view of the evidence – enough to raise a fact question – that there is
no statutory violation
 
and 
that plaintiff’s own acts oromissions were the sole cause ofthe accident. If defendant’s asser-tions in response fail to raise a factquestion as to these issues, theplaintiff must be accorded sum-mary
judgment. . . .”
This ladder must be secured at its top and bottom, to pre-vent it from slipping and fal-ling.
SUMMARY JUDGMENT IN LADDERFALL CASES, AFTER
BLAKE 
 
THE NEW NO FAULT REGULATIONS
Since 1997, an car accidentvictim has had 90 days to submit anotice of claim to the insurer. Proofof medical expenses was requiredwithin 180 days of the treatmentreceived; proof of work losses assoon as reasonably practicable;and proof of other necessary ex-penses within 90 days after ser-vices were rendered. Late appli-cations were permitted only when itcould be shown that compliancewith the deadlines was "impossible"due to specific circumstances be-yond the claimants control.Doctors and lawyers must beaware that now, new regulationsare now in effect which reduce thetime limit for filing a notice of claimfrom 90 to 30 days. They reducethe time in which to submit proof oflaws due to medical treatment from180 to 45 days, and proof of
The Durst Law Firm, P.C.
March 1, 2004Issue 10
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Special pointsof interest:
♦
Winning summary judg-ment in ladder fallcases
♦
Deadline for No-Faultclaim is now 30 daysafter the accident, in-stead of 90 days
♦
The Senate is weighinglaw giving FCC power tofine talkers 1/2 Milliondollars for “indecent”speech
Inside this issue:
Ladder Cases
1
No Fault
1
FCC Cultural Wars
2
 
Once the plaintiff has
demonstrated that there
was
astatutory violation applicable tothis situation, the evidence sub-mitted in opposition usually failsto show any genuine factualdispute as to whether there wasa statutory violation. Specifi-cally, there is usually no evidenceto raise a genuine issue of factas to whether the placement ofthe ladder, without being se-cured, violated the OSHA Regu-lations, and thereby Labor Law240(1).So the job on a motion forsummary judgment under LaborLaw 240(1) is to articulate howthe ladder was not “
constructed,placed and operated as to giveproper protection to a person” 
.In order for a ladder to be“placed” so as to “give properprotection”, the placement mustat a minimum meet the require-ments of the OSHA Regulationsand New York State IndustrialCode for the use of ladders atconstruction sites.The NYS Industrial Code1910.25(d)(2)(xv) states that“[W]hen work is being per-formed from
ladder rungs be-tween six and 10 feet abovethe ladder footing
, a leaningladder shall be
held in place bya person stationed at the foot ofsuch ladder
 
unless
the upper endof such
ladder is secured againstside slip by its position or bymechanical means
.” When workis being performed from rungs
higher than 10 feet
above thefine will be assessed against thestation,
and 
the individual, andmultiplied by the number of sta-tions the individual appears on.Howard Stern’s show airs on 70stations, so if he accidentally saidthe “F word”, he could be fined$500,000, 70 times. A $35million fine sounds ridiculous on itsIf you have been listening tothe radio in the morning, youmay have heard Howard Sternranting feverishly about a newbill in the Senate which will au-thorize the FCC to issue fines inthe amount of $500,000 foranything they deem to be“indecent” on the airwaves. Theface, so the bill places a limit of$3 million per day as the maxi-mum fine.Such a devastating fine hassuch a “chilling effect” that allon-air personalities would bescared to death that they or oneof their guests might say some-
Ladder Falls and Summary Judgment
FCC on the MarchNew No Fault Regulations
For instance, the new regula-tions relax the standard for ex-cepting late filings, replacing theprevious rule that late filings werepermitted only when written proofshowed that compliance with adeadline was "impossible", with astandard excusing a missed dead-line when there is a "clear and areasonable justification" for thedelay.Under the new regulations,claims may never be denied asuntimely when the reason for thedelay is the failure of an em-ployer or other third party toprovide information necessary toestablish proof of claim for lostwages.Each claimant must be noti-fied of the new notice require-ments and the opportunity towork laws from as soon as rea-sonably practicable to 90 days.While creating more stringentdeadlines for submitting claims,the new regulations, when usedcarefully, can be used to thebenefit of the No Fault applicantas well. Attorneys representingcar accident victims must be fullyaware of the saving provisions ofthe new regulations.
Page 2
Legal News
One of the most fre-quent accidents thatlawyers deal with is afall while painting.Does the FCC, like the Taliban,want to impose a rightwing reli-gious view of “proper speech” onthe Unbelievers? More veils for women?
Â\Ç ÉÜwxÜ àÉ ux ÑÜÉÑxÜÄç  ÑÄtvxw? t ÄtwwxÜ Åâáà ux áxvâÜxA TÇç à|Åx ÉÇx ytÄÄá?|à ãtá ÑÜxáâÅxw |à ãtáÇËà áxvâÜxw ÑÜÉÑxÜÄçA aÉã? tyàxÜ UÄt~x? çÉâ Åâáà ÑÜÉäx ã{ç |à ãtáÇËà áxvâÜxw ÑÜÉÑxÜÄçAÊ 
 
ladder footing,
mechanicalmeans
for securing the upperend of such ladder against sideslip
are required and the lowerend of such ladder shall be heldin place by a person
unless suchlower end is tied to a secureanchorage or safety feet areused.OSHA Reg. 1926.1053(b)(1)specifically requires that the siderails extend three feet above theupper landing, where the ladderis supported,
or
be secured atthe top to a rigid support.OSHA
in its
list of the mostfrequently cited OSHA hazards;the hazard ranked #21 in fre-quency is a violation of Regula-tions 1926.1053(b)(1).OSHA explains that “[t]he pur-pose of this rule is to provideprotection to employees duringtwo critical phases of ladderclimbing: 1) when employees areon the ladder and their move-ment may cause forces to betransferred to the ladder and it’ssupport points which might tendto make it slip or fall; . . .”The “Selected Case Histories”states: “An employee was climb-ing a 10 foot ladder to access alanding which was 9 feet abovethe adjacent floor. The ladderslid down and the employee fellto the floor, sustaining fatal inju-ries. Although the ladder hadslip-resistant feet, it was notsecured, and the railings did notextend 3 feet above the landing.The Comment notes that “[t]hisis a specification standard whichtime building up his business, andthe bill gives the FCC the powerto wipe out a lifetime of earn-ings. It is a real fear; Stern’sstation was fined $1.7 million inthe past, and he is spontaneousenough on a daily basis that theFCC could find fault with his showjust about any time it wanted to.thing that offends the FCC .For his part, Stern has saidthat he will resign if the Senatepasses the bill. And he has everyreason to be afraid. He, unlikemost broadcasters, has enoughmoney to be concerned aboutsuch a fine. He has spent a life-This is especially true given thefact that the Republicans in officeare currying the favor of thereligious right before the elec-tion, and would love nothingmore than to make an exampleof him.Stay tuned!
Ladder Falls and Summary Judgment
FCC on the MarchNew No Fault Regulations
submits a claim to the incorrectinsurer. All denials of claimbased on late filings must besubject to supervisory review ofall such determinations.The new regulations havebeen challenged in court, andupheld by the New York StateCourt of Appeals. In the Matterof Medical Society of the Stateof New York, et al., Appellants,v. Gregory Serio, 100 N.Y.2d854; 800 N.E.2d 728; 768N.Y.S.2d 423; 2003 N.Y. LEXIS3314 (October 21, 2003). Sothe only way to deal with them isto know the details of the regula-tions, and use the affirmativerequirements imposed on theinsurance companies to the bene-fit of the car accident victim,when necessary to save their no-fault claim.submit a justification for any latenotice.Insurers are required to es-tablish standards of review fortheir determination that notices orproofs of claim to have beenfiled late, and these standardsmust include consideration forsituations where they claimanthas difficulty ascertained theinsurer's identity for inadvertently
Page 3
Issue 10
Clear violations of therules on ladder use and  placement occur at mostconstruction sites, and injuries are common. Is George cheering on thereligious right in their at-tack against loose talk?
Âg{x Çxã ÜxzâÄtà|ÉÇá vtÇ ux âáxw àÉ utÜ aÉ YtâÄà vÄt|Åá? uâà t áÅtÜà tààÉÜÇxç ã|ÄÄ âáx à{xÅ àÉ yÉÜvx à{x tvvxÑàtÇvx Éy aÉ YtâÄà vÄt|ÅáÊ 
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