The Occupational Safety and Health Review Commission recently set aside a a settlement that had been approved by the administrative law judge despite the fact that the time to challenge the order had passed and the order had become final. Apparently both the respondent and the Department of Labor (as well as the administrative law judge) failed to recognize that the settlement left one item on one of the citations open. This resulted in the settlement not "fully resolving" all issues in the citations. Thankfully for all involved, the OSHRC found justification for opening the order and remanding it for correction.
The case is a good reminder that mistakes happen and its always a good (great) idea to double check key documents to make sure they say what you think they say.
The case was Secretary of Labor v. True Value Company.
Vincent T. Pallaci is the managing member of Kushnick Pallaci PLLC. His practice includes defense of OSHA citations and other construction law issues.
Showing posts with label Construction Safety. Show all posts
Showing posts with label Construction Safety. Show all posts
Sunday, July 30, 2017
Hope for contractors? Appellate Court Says Not Every Fall From Height Equals Strict Liability
New York's Labor Law drives up the cost of construction in New York because it drives up the cost of insurance in New York. The main reason for this is the so called "strict liability" provided by the Labor Law when it comes to falls from heights. But the Appellate Division recently reminded us that not every fall from a height results in automatic liability.
The case involved a fall of some 30 feet on the new World Trade Center. Apparently a worker stepped on a pipe scaffold that gave way. The plaintiff moved for summary judgment but the trial court denied the motion finding questions of fact. Specifically, they questioned whether there were adequate anchor points from which the injured worker (who was wearing a harness with a double lanyard) could have tied off. Sure the jury may ultimately find for the injured worker. But cases like this provide a glimmer of hope for those trying to fight back against New York's Labor Law.
The case was Giordano v. Tishman Const. Corp.
Vincent T. Pallaci is the managing member of Kushnick Pallaci PLLC. His practice includes defending contractors and owners against Labor Law claims and prosecuting claims against insurance companies that refuse to provide coverage to contractors and owners.
The case involved a fall of some 30 feet on the new World Trade Center. Apparently a worker stepped on a pipe scaffold that gave way. The plaintiff moved for summary judgment but the trial court denied the motion finding questions of fact. Specifically, they questioned whether there were adequate anchor points from which the injured worker (who was wearing a harness with a double lanyard) could have tied off. Sure the jury may ultimately find for the injured worker. But cases like this provide a glimmer of hope for those trying to fight back against New York's Labor Law.
The case was Giordano v. Tishman Const. Corp.
Vincent T. Pallaci is the managing member of Kushnick Pallaci PLLC. His practice includes defending contractors and owners against Labor Law claims and prosecuting claims against insurance companies that refuse to provide coverage to contractors and owners.
Saturday, December 17, 2016
Avoiding OSHA Citations for Power Operated Tools and Equipment
Okay, maybe its not possible to avoid an OSHA investigation. Whether it is a targeted investigation or a random check, an OSHA investigation can lead to costly citations (click here for information about challenging OSHA citations). But remember, OSHA is there to make sure the workplace is safe. If you follow industry guidelines you are much more likely to avoid potentially costly violations while simultaneously increasing your workplace safety.
OSHA offers many helpful guides, including checklists, to stay in compliance and avoid potential citations. Here is a checklist provided by OSHA for handling Power Operated Tools and Equipment:
PORTABLE (POWER OPERATED) TOOLS AND EQUIPMENT
Monday, February 27, 2012
Construction Collapses: Responding to the Emergency from a Legal Standpoint
The construction industry is dangerous. Major construction accidents can involve both a risk to life and property damage that can sometimes reach liability in the millions of dollars. In tight urban environments, like New York City, the risk of damage from construction on an adjoining property is particularly high. One of the most severe situations that can pose a risk to life and property on a construction site is a collapse. Whether the collapse is of a new structure that fails, an adjoining structure that was undermined, or, as New York City has recently experienced, a tower crane failure, the collapse can be devastating. The natural instinct is, of course, to immediately see to the protection of life. Unfortunately, little attention is given to the legal consequences that will certainly come out of the collapse. Contractors must, like any other business, take steps to protect their business (including the jobs that they create) even in the face of sometimes tragic circumstances surrounding a collapse.
While calling your lawyer right after a collapse might be the last thing on your mind, it shouldn't be. Most good detectives will tell you that the majority of crimes that are solved are solved on evidence gathered within the first 48 hours after the incident. The civil liability that comes out of a construction collapse is no different. By contacting your attorney as soon as possible after the collapse you allow him or her to:
1. Visit the scene while it is still in relatively the same state as it was during at the time of the accident. Your attorney can use both photographs and video recordings to "preserve" the evidence that expert consultants may need later on after litigation has commenced. Many times because the site has already been severely altered by the time litigation comes along, the experts retained to determine causation are limited in their ability to fully investigate because they are not able to inspect it. While photographs and videos are not a substitute for an on site investigation, they are the next best thing for purposes of litigation and may provide evidence that is critical to the ultimate determination of the case.
2. Identify and interview witnesses. Memories fade with the passage of time. Witnesses to the collapse might not remember details in a deposition 3 years after the collapse, but they most likely will remember even small details within the first 48 hours. Identifying these witnesses will be easiest at the time of the accident because they are still most likely on site. Finding the names and locations of witnesses 2 or 3 years after the project can often be difficult and sometimes impossible especially where the witnesses worked for other contractors or subcontractors. People die, move away or simply forget. But getting their stories at the time of the collapse can limit the damage of missing witnesses later down the line. If a witness is particularly important, your attorney can get him or her to provide a written statement then and there and even an affidavit if necessary. By gathering the written statements at the time of the collapse, their memories are preserved and, if they are deposed 3 years later, they will more likely be able to recall the details after reviewing their own statements taken shortly after the collapse.
3. Direct your office staff on document identification, location and preservation. Construction litigation is very document intensive. A complex construction dispute, especially a collapse where the cause, liability and damages are disputed, can easily involve the exchange of tens of thousands of pages of documents. By interacting with your office staff immediately after the collapse your attorney can begin identifying the important documents right away and explain the importance of proper document retention. Too many times I have been in a deposition where a witness insists a crucial document exists but nobody can find it. Identifying the document right after the incident and implementing a document retention and preservation policy will prevent that important document from disappearing (especially when the project may be completed several years before the document is requested in litigation).
4. Identify contractual provisions that may have been triggered. When a tragedy like a major collapse happens you probably aren't even thinking of going and reading your contract. But doing so is a necessity. There could be provisions in there regarding who you must notify of the situation and how. There could be provisions regarding what notices you must provide of the expected delays that will result from the collapse. There may be provisions regarding how you must submit a request for an extension of the contract time as a result of the collapse. There could be numerous other crucial time sensitive provisions that are triggered by the collapse. By notifying your attorney and getting him or her involved early, you reduce the risk that these contractual obligations may be missed.
5. Notify all of the property insurers of the incident. Your insurance company is going to want to begin its own investigation as soon as possible. Most likely, your policy itself will require you to notify them of the incident "as soon as practicable" and failure to do so can result in a loss of coverage. Insurers should always be put on notice in writing and by delivering the notice to the location identified in your policy. In addition to your own policy, you may want to put others on notice of the incident as well, including any policies for those that may have added you as an additional insured for the project.
A construction collapse can devastate your business but it doesn't have to put you out of business. After the initial shock of the situation passes, you must remember that you have to takes steps to protect your company. Remember, your employees depend on you for their livelihood and you shouldn't put their jobs at risk because you mishandled the situation.
Vincent T. Pallaci is a partner in the New York law firm of Kushnick Pallaci, PLLC. His practice focuses primarily on the area of construction law, including prosecuting and defending lawsuits that arise out of construction collapses. He can be reached at vtp@kushnicklaw.com or (631) 752-7100. You can also visit our firm site at www.nyconstructionlaw.com
While calling your lawyer right after a collapse might be the last thing on your mind, it shouldn't be. Most good detectives will tell you that the majority of crimes that are solved are solved on evidence gathered within the first 48 hours after the incident. The civil liability that comes out of a construction collapse is no different. By contacting your attorney as soon as possible after the collapse you allow him or her to:
1. Visit the scene while it is still in relatively the same state as it was during at the time of the accident. Your attorney can use both photographs and video recordings to "preserve" the evidence that expert consultants may need later on after litigation has commenced. Many times because the site has already been severely altered by the time litigation comes along, the experts retained to determine causation are limited in their ability to fully investigate because they are not able to inspect it. While photographs and videos are not a substitute for an on site investigation, they are the next best thing for purposes of litigation and may provide evidence that is critical to the ultimate determination of the case.
2. Identify and interview witnesses. Memories fade with the passage of time. Witnesses to the collapse might not remember details in a deposition 3 years after the collapse, but they most likely will remember even small details within the first 48 hours. Identifying these witnesses will be easiest at the time of the accident because they are still most likely on site. Finding the names and locations of witnesses 2 or 3 years after the project can often be difficult and sometimes impossible especially where the witnesses worked for other contractors or subcontractors. People die, move away or simply forget. But getting their stories at the time of the collapse can limit the damage of missing witnesses later down the line. If a witness is particularly important, your attorney can get him or her to provide a written statement then and there and even an affidavit if necessary. By gathering the written statements at the time of the collapse, their memories are preserved and, if they are deposed 3 years later, they will more likely be able to recall the details after reviewing their own statements taken shortly after the collapse.
3. Direct your office staff on document identification, location and preservation. Construction litigation is very document intensive. A complex construction dispute, especially a collapse where the cause, liability and damages are disputed, can easily involve the exchange of tens of thousands of pages of documents. By interacting with your office staff immediately after the collapse your attorney can begin identifying the important documents right away and explain the importance of proper document retention. Too many times I have been in a deposition where a witness insists a crucial document exists but nobody can find it. Identifying the document right after the incident and implementing a document retention and preservation policy will prevent that important document from disappearing (especially when the project may be completed several years before the document is requested in litigation).
4. Identify contractual provisions that may have been triggered. When a tragedy like a major collapse happens you probably aren't even thinking of going and reading your contract. But doing so is a necessity. There could be provisions in there regarding who you must notify of the situation and how. There could be provisions regarding what notices you must provide of the expected delays that will result from the collapse. There may be provisions regarding how you must submit a request for an extension of the contract time as a result of the collapse. There could be numerous other crucial time sensitive provisions that are triggered by the collapse. By notifying your attorney and getting him or her involved early, you reduce the risk that these contractual obligations may be missed.
5. Notify all of the property insurers of the incident. Your insurance company is going to want to begin its own investigation as soon as possible. Most likely, your policy itself will require you to notify them of the incident "as soon as practicable" and failure to do so can result in a loss of coverage. Insurers should always be put on notice in writing and by delivering the notice to the location identified in your policy. In addition to your own policy, you may want to put others on notice of the incident as well, including any policies for those that may have added you as an additional insured for the project.
A construction collapse can devastate your business but it doesn't have to put you out of business. After the initial shock of the situation passes, you must remember that you have to takes steps to protect your company. Remember, your employees depend on you for their livelihood and you shouldn't put their jobs at risk because you mishandled the situation.
Vincent T. Pallaci is a partner in the New York law firm of Kushnick Pallaci, PLLC. His practice focuses primarily on the area of construction law, including prosecuting and defending lawsuits that arise out of construction collapses. He can be reached at vtp@kushnicklaw.com or (631) 752-7100. You can also visit our firm site at www.nyconstructionlaw.com
Saturday, September 24, 2011
New York City Underpinning Concerns
In densely populated metropolitan areas such as New York City, contractors will often encounter situations where they have to install underpinning on an adjacent property in order to prevent, or limit, damaging it during construction operations that excavate below the adjacent property's foundation. It doesn't matter if the construction takes place in Manhattan, Queens, Brooklyn or the Bronx, contractors in New York City will likely encounter this situation at some point and they should take great caution: Improper and defective excavation and underpinning operations are one of the leading causes of construction damage in New York City.
Pursuant to Section 3309.5 of the New York City Building Code:
Pursuant to Section 3309.5 of the New York City Building Code:
Whenever underpinning is required to preserve and protect an adjacent property from construction or excavation work, the person who causes the construction or excavation work shall, at his or her own expense, underpin the adjacent building provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the construction or excavation is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of the adjoining property, who shall be afforded a similar license with respect to the property where the excavation is to be made.
Pursuant to Section 1704.9.1 of the Building Code, all underpinning work must be inspected by a "special inspector."
Beginning in April 2010, the New York City Department of Buildings began enforcing a policy that requires any contractors that will be performing "earthwork" must notify the Department of Buildings 24 to 48 hours before beginning the work. In the case of underpinning, the contractor must provide the approximate date of when the underpinning operations will begin. If "earthwork", such as underpinning is cancelled, the Department of Buildings must be notified within 24 hours of the original anticipated start date. The Department of Buildings performs random audits of any "earthwork" including underpinning and any underpinning that is performed without the property prior notice to the Department of Buildings is subject to a Stop Work Order.
In January 2010 the Department of Buildings issued Bulletin 2010-001 which provided, in part, that certain buildings may be included within the "stalled site" program. In relation to underpinning, the bulletin requires:
4.4. Underpinning shall be inspected by a licensed engineer for conformance to and completeness in accordance with the approved design. All excavated underpinning piers shall be concreted and load transferred to the pier. Unless underpinning is braced by rakers or tie backs, fill shall be placed against all exposed underpinning, to prevent lateral displacement. Licensed engineer shall provide a signed and sealed report verifying current stability of underpinning and of structure that was underpinned and shall inspect periodically (minimum of once each month) to ensure sustained stability.
Contractors, engineers and architects will be familiar with New York City's from TR1 which is the Technical Report Statement of Responsibility. The underpinning special inspection can be found on the first page of the TR1 under Section 3.
All of these requirements and obligations are intended to protect the adjacent property owner from enduring damage due to the excavation operations next door. Improper or defective underpinning can cause damage ranging from small cracks and shifts leading to doors and windows that won't close property to complete and total collapse of the building. Contractors and engineers alike should make sure they are thoroughly familiar with all of the Building Code's requirements for underpinning operations in order to limit the likelihood that the building will be damaged. If damage should occur, and especially if it results in litigation, one of the first things that the attorney for the damaged property will do is find out whether the proper notices and permits were filed with the Department of Buildings. If they were not, the contractor and/or engineer could face significant liability. Of course liability may exist even if the Building Code requirements are not followed.
Vincent T. Pallaci is a partner in the New York law firm of Kushnick Pallaci, PLLC where he practices construction law across the State of New York including claims for defective and deficient underpinning. He can be reached at vtp@kushnicklaw.com or (631) 752-7100.
Tuesday, August 16, 2011
Underpinning an Adjacent Property: A Recipe for Shutting Your Project Down
In close urban construction environments, such as those encountered in New York City every day, underpinning is inevitably required on many projects. Since almost every parcel of land has at least three adjoining properties (one in the rear and one on each side), the possibility exists that any given construction project could require underpinning on up to three separate parcels.
In the City of New York, it is mandatory that prior to underpinning an adjacent property the written consent of the adjoining land owner be obtained. If written consent cannot be obtained, the developer has the option of attempting to secure judicial permission to underpin the project under Real Property Actions and Proceedings Law Section 881. However, if no judicial license is obtained, and no consent exists, and you proceed to underpin the adjoining property anyway, there is a very good chance that once the New York City Department of Buildings discovers that your underpinning was done without written consent, they will audit your construction project and shut you down. If construction is ongoing, a full stop work order will be issued. If construction is complete, your permit will likely still be revoked and the Department of Buildings will refuse to issue you a certificate of occupancy.
What will follow is years and tens of thousands of dollars in litigation trying to find a way around your initial mistake in not obtaining written consent. There is a possible chance that there will not be any way around it and your project will suffer permanent incapacitation unless you can convince the adjoining land owner to provide subsequent consent which, of course, will involve you writing a check. You should never provide consent or otherwise allow a neighbor to underpin your property without written consent in the form of a license agreement that will provide for the protection of your property as well as other safeguards necessary during the underpinning process.
Vincent T. Pallaci is the managing member of the New York construction law firm of Kushnick Pallaci, PLLC. His practice includes claims arising from defective or deficient underpinning. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
In the City of New York, it is mandatory that prior to underpinning an adjacent property the written consent of the adjoining land owner be obtained. If written consent cannot be obtained, the developer has the option of attempting to secure judicial permission to underpin the project under Real Property Actions and Proceedings Law Section 881. However, if no judicial license is obtained, and no consent exists, and you proceed to underpin the adjoining property anyway, there is a very good chance that once the New York City Department of Buildings discovers that your underpinning was done without written consent, they will audit your construction project and shut you down. If construction is ongoing, a full stop work order will be issued. If construction is complete, your permit will likely still be revoked and the Department of Buildings will refuse to issue you a certificate of occupancy.
What will follow is years and tens of thousands of dollars in litigation trying to find a way around your initial mistake in not obtaining written consent. There is a possible chance that there will not be any way around it and your project will suffer permanent incapacitation unless you can convince the adjoining land owner to provide subsequent consent which, of course, will involve you writing a check. You should never provide consent or otherwise allow a neighbor to underpin your property without written consent in the form of a license agreement that will provide for the protection of your property as well as other safeguards necessary during the underpinning process.
Vincent T. Pallaci is the managing member of the New York construction law firm of Kushnick Pallaci, PLLC. His practice includes claims arising from defective or deficient underpinning. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
Saturday, April 30, 2011
Don't Ignore ECB Violations
Many construction projects within the City of New York will encounter violations for environmental control board (ECB) violations at one time or another. Many of the violations are minor but some can shut your project down. The key is not to ignore them. Ignoring the violations will not make them go away: it will lead to more severe penalties.
There are generally three levels of violations. There are class 3 (least severe), class 2 (moderate) and class 1(most severe). Ignoring violations can lead to additional violations that are more severe. Fines can range from a few hundred dollars to a few thousand dollars and your project being shut down.
Often, class 2 or class 3 violations can be "stipulated" to with the Department of Environmental Protection. You may even receive an offer to stipulate in the mail before your hearing date. Generally the stipulation provides that you admit the violation, agree to cure it within 75 days and will pay a fine. If you cure the violation within the period of time and file a certificate of correction then that is it and you are done with the violation.
However, if you do not agree to the stipulation, or if the violation is a class 1 violation, then you will have to appear for a hearing before an administrative law judge (ALJ). The ALJ will hear your defense to the violations and will then generally issue a recommendation to the ECB. The ECB will then issue its determination with regards to the violation. The ECB could fine you or could order you to shut down the offending condition or stop using it until it is remedied.
The ECB hearing before the ALJ is essentially a mini trial. You will present evidence in your defense and the DEP will present evidence of the violation. If you dispute the violation, you will need to provide evidence as to why the violation is improper. If you do not dispute the violation but, rather, need time to carry out the corrective efforts then it is a very good idea to show up to the hearing with a written timeline showing exactly how and when you will correct the violation.
Perhaps the most drastic remedy that the ECB can hand down is a cease and desist order. The cease and desist order will require you to stop the offending condition and can lead to equipment being "sealed" by the DEP.
In order to avoid having the ECB hammer dropped on your job site or your building, make sure you immediately speak to your attorney about the alleged violation and formulate a plan to handle the violation.
Vincent T. Pallaci is an attorney at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on construction law including defending against ECB violations. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
There are generally three levels of violations. There are class 3 (least severe), class 2 (moderate) and class 1(most severe). Ignoring violations can lead to additional violations that are more severe. Fines can range from a few hundred dollars to a few thousand dollars and your project being shut down.
Often, class 2 or class 3 violations can be "stipulated" to with the Department of Environmental Protection. You may even receive an offer to stipulate in the mail before your hearing date. Generally the stipulation provides that you admit the violation, agree to cure it within 75 days and will pay a fine. If you cure the violation within the period of time and file a certificate of correction then that is it and you are done with the violation.
However, if you do not agree to the stipulation, or if the violation is a class 1 violation, then you will have to appear for a hearing before an administrative law judge (ALJ). The ALJ will hear your defense to the violations and will then generally issue a recommendation to the ECB. The ECB will then issue its determination with regards to the violation. The ECB could fine you or could order you to shut down the offending condition or stop using it until it is remedied.
The ECB hearing before the ALJ is essentially a mini trial. You will present evidence in your defense and the DEP will present evidence of the violation. If you dispute the violation, you will need to provide evidence as to why the violation is improper. If you do not dispute the violation but, rather, need time to carry out the corrective efforts then it is a very good idea to show up to the hearing with a written timeline showing exactly how and when you will correct the violation.
Perhaps the most drastic remedy that the ECB can hand down is a cease and desist order. The cease and desist order will require you to stop the offending condition and can lead to equipment being "sealed" by the DEP.
In order to avoid having the ECB hammer dropped on your job site or your building, make sure you immediately speak to your attorney about the alleged violation and formulate a plan to handle the violation.
Vincent T. Pallaci is an attorney at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on construction law including defending against ECB violations. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
Wednesday, March 23, 2011
Legislature contemplates whether builders of one family residential homes should be exempt from Labor Law 240 and 241
Bill A02866 proposes that builders of new one-family residential homes will be given the same "exemption" from liability for Labor Law 240 and 241 claims that owners of one-family residential homes have enjoyed for years.
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
Is NYC contemplating the creation of a new independent "building review agency"?
Assembly bill A01317 proposes to create a new "independent building review agency" in the City of New York to oversee the development and construction of projects within the City of New York. The proposal of this bill begs the question: if we need to establish a new independent building review agency then what is the New York City Department of Buildings doing?
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
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