The Wrong Punch

Q: To satisfy the school district's physical education requirement, a female student could take the self-defense class, and then even compete in the school's self-defense tournament. I did. Unfortunately, while the class and tournament incorporated moves from various martial arts forms, the teacher had no certifications in any of these martial arts and very little martial arts training in general.

Q: To satisfy the school district's physical education requirement, a female student could take the self-defense class, and then even compete in the school's self-defense tournament. I did. Unfortunately, while the class and tournament incorporated moves from various martial arts forms, the teacher had no certifications in any of these martial arts and very little martial arts training in general.

Although the move which caused my injury had not been taught by the teacher, we had been using this move in class and during the tournament, and the teacher was aware of this fact. 17 seconds into my last bout, the teacher observed my opponent use this move, but he neither stopped the bout nor warned my opponent not to use the move. When she used it for a second time, I was injured.

A: Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally, and flow from such participation. Your consent eliminates the duty of care that would otherwise exist.

However, the doctrine of primary assumption of risk does not apply where the risks were unassumed, concealed, or unreasonably increased. Your attorney will argue that you most certainly did not consent to the risks associated with the move that ultimately caused your injuries. Rather, those risks were concealed and unreasonably increased. Moreover, the school’s lack of adequate supervision was a proximate cause of your injuries.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2016-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

The Year of the Roach

Q: I live in a rent-stabilized apartment. It has roaches and other problems at the refrigerator, the door lock, the fire-escape window and the stove. Five years ago, the situation was already so bad that the Division of Housing and Community Renewal ordered a rent reduction.

Q: I live in a rent-stabilized apartment. It has roaches and other problems at the refrigerator, the door lock, the fire-escape window and the stove. Five years ago, the situation was already so bad that the Division of Housing and Community Renewal ordered a rent reduction.

The owner failed to make any repairs; I continued to pay the unreduced rent. After a while, he sold the building. The new owner also failed to make any repairs. I continued to pay the unreduced rent, and I even entered into a new lease, at a greater rent. Finally, I have decided to listen to my mother-in-law.

A: If the lady is telling you to file a rent overcharge claim, the claim is subject to a four-year statute of limitations. Examination of the rental history is limited to the four-year period preceding the filing of an overcharge complaint. The purpose of the four-year limitations or look-back period is to alleviate the burden on an honest landlord to retain rent records indefinitely.

However, the law wants owners to provide necessary services, compensate tenants deprived of those services, and preserve and maintain the housing stock. Your DHCR rent-reduction order is not a record in the landlord’s files: better put, it is an order in the files of the DHCR. Certainly, the DHCR can take notice of its own orders and rent registrations without imposing onerous obligations on a landlord.

Rent reduction orders – that are still in effect during the four-year period – are in fact part of the rental history that the DHCR must consider. Despite this, the landlord will argue that your claim is barred by a doctrine called laches. Under laches, you can be barred from bringing your claim to the extent that your delay caused “prejudice” to the landlord.

Apparently, you have delayed in opposing the excessive rent for about five years. In theory, the first or the second landlord can establish “prejudice” by showing some kind of injury, change of position, loss of evidence or other disadvantage resulting from your delay. However, laches must be pleaded and proved by the party asserting it, i.e. the landlord. A skillful tenant’s lawyer can make it very hard for the landlord to succeed.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

The Zip Line

Q: My friend had installed a zip line between two trees. The seat failed to brake, so I put my feet out in front of me until they hit the end tree – and I was thrown backwards, off the seat and onto a boulder on the ground.

Thinking About Yesterday

Q: One evening, while thinking about yesterday and going down a stairway in a two-family house, I fell. I had rented the upstairs apartment for over 20 years. It was always too dark in that stairway. In addition, there was a loose top step and a loose screw on the landing. One or more of these conditions is why I fell. My friend says it’s my own fault: after all those years, I should have known better.

Tiptoe Through the Tulips

Q: On the Fourth of July, I went to a fireworks display in the park. It was sponsored by the city. Toward the end, we began to cross the park towards our car. A large crowd of people had spilled over from the grassy areas onto the walkways. I had a difficult time navigating through the crowd, so I departed from the walkway and crossed what turned out to be a field of tulips. Although overhead light fixtures are located throughout the park, they were off. Suddenly, there was a drop from the field to the curb. I was unable to see it.

Q: On the Fourth of July, I went to a fireworks display in the park. It was sponsored by the city. Toward the end, we began to cross the park towards our car. A large crowd of people had spilled over from the grassy areas onto the walkways. I had a difficult time navigating through the crowd, so I departed from the walkway and crossed what turned out to be a field of tulips. Although overhead light fixtures are located throughout the park, they were off. Suddenly, there was a drop from the field to the curb. I was unable to see it.

A: Most likely, a necessary first step will be to submit a ‘notice of claim’ to the city. Such a notice serves an important public purpose, enabling authorities to promptly investigate the site of an alleged accident and assess municipal exposure to liability. You must describe when and where you accident took place, in as much detail as can reasonably be expected.

So long as you have given that much detail, if the city has any quarrel with the sufficiency of your notice, then it can summon you and your attorney to a standard hearing, where you give testimony. It helps to bring photographs of the relevant portions of the curb. You will be expected to identify the general location where you fell.

Your theory of recovery is that your injuries are due to the city's negligent failure to properly light the park during the celebration. You were lawfully in a park owned by the city to attend a celebration sponsored by the city. Despite the presence of overhead lights which could have illuminated the park, the city chose not to use them even though a large crowd had gathered.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Too Short a Ladder

Q: My neighbor owned a two-family home. He planned to rent-out both halves and hired me to put a horizontal wooden board, running all around, under the edge of the roof. The board would be used to hold the rain gutter. The owner supplied me with a ladder. I was concerned that it was too short, and told him so, but he said that the project needed to be completed before I left and proceeded to hold the ladder – while I climbed it and then stretched-out my arm to attempt the work. Sure enough, I fell.

Q: My neighbor owned a two-family home. He planned to rent-out both halves and hired me to put a horizontal wooden board, running all around, under the edge of the roof. The board would be used to hold the rain gutter. The owner supplied me with a ladder. I was concerned that it was too short, and told him so, but he said that the project needed to be completed before I left and proceeded to hold the ladder – while I climbed it and then stretched-out my arm to attempt the work. Sure enough, I fell.

A: Under sections 240 and 241 of the Labor Law, a property owner must comply with safety practices for the protection of workers engaged in construction-related activities – except for the owner of a one or two-family dwelling who does not direct or control the work. The exception stems from the fact that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection.

You appear to have a very strong argument that the homeowners’ exemption does not apply. First, it does not encompass one who is using his premises entirely and solely for commercial purposes, and renovating a residence for resale or rental can qualify as work being performed for a commercial purpose. Second, some of the facts suggest that this owner was directing or controlling the work.

As for section 200 of the Labor Law, it codifies the common-law duty of owners and general contractors to maintain a safe construction site. The evidence may well show that the owner (a) created the dangerous condition that caused your fall, (b) failed to remedy it despite your complaints, or (c) exerted actual control and supervision. Any one of these reasons has the potential to give you victory.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2018-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Touch Football

Q: At summer camp, our next activity was touch football. The counselors were so keen to participate themselves, that they had not even given us alternatives. The game was being played on an asphalt parking lot, belonging to the school district. While running to catch a ball, I slipped on some sand. My father has learned that the school district knew that the city would use the parking lot for its camp, knew of the sand condition, and even understood that the sand could present a safety issue for us.

Traffic Calming

Q: After dark, my son was riding his bicycle on a straight road running north to south, with two lanes in each direction, divided by a double yellow line. The western side was bordered by storefronts, and the eastern side by parkland.

Q: After dark, my son was riding his bicycle on a straight road running north to south, with two lanes in each direction, divided by a double yellow line. The western side was bordered by storefronts, and the eastern side by parkland.

The City had already received several letters complaining of speeding – that the road was being treated as a racetrack. The complaints were routed to the Department of Transportation. The DOT conducted four studies before the accident, although only at intersections, found that many vehicles were speeding and notified the police after each study. Still, the City never implemented traffic calming measures, such as speed humps, narrowed lanes, rumble strips, roundabouts or raised crosswalks, among others.

As my son attempted to cross the road in the middle of the block, he was struck by a southbound vehicle traveling at a speed of at least 54 miles per hour, whereas the speed limit was 30.

A: Your attorney will argue that the accident arose from the City's failure to maintain the road in a reasonably safe condition, by implementing traffic calming measures. The City was made aware through repeated complaints of ongoing speeding along the road, the City could have implemented roadway design changes, and yet the City failed to implement any such changes.

The City may choose to contend that the driver's reckless and criminal speeding was a superseding cause of the accident. However, your attorney will point out that, no, the City's own negligence made such speeding a reasonably foreseeable consequence.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2017-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Trap for the Unwary

Q: My daughter’s gym class was being covered by a substitute – who had taken the class outside, to a football field that is surrounded by a track. The substitute gave the students the option of walking around the track or playing touch football.

Trapped in the Cab

Q: At a construction project, I was assigned to operate a diesel-powered excavator to remove a massive bulkhead constructed of timber cribbing which was built into the banks of a creek that was an inlet of the East River. The bulkhead served to stabilize the shoreline and prevent erosion into the creek. The job required me to excavate the below-grade timber cribbing and hoist it to higher ground, above the tidal plane.

Q: At a construction project, I was assigned to operate a diesel-powered excavator to remove a massive bulkhead constructed of timber cribbing which was built into the banks of a creek that was an inlet of the East River. The bulkhead served to stabilize the shoreline and prevent erosion into the creek. The job required me to excavate the below-grade timber cribbing and hoist it to higher ground, above the tidal plane.

I would dip my bucket into the water and scoop out material. Then I would rotate my excavator and pile the spoils as high on the shoreline as the reach of my excavator would allow. My accident happened on my second day. There was no project superintendent on site, and no spotter to assist me.

At the edge of the creek, the land was sloped and unshored. The excavator lost traction and slid downward toward the water, like it was on rails. There was no temporary shoring at the waterline to arrest the slide, and the excavator tipped sideways into the waters. It quickly sank to the bottom with me trapped in the operator’s cab. The cab filled with water, but I could not open the door to escape. As the water reached the top of the cab, I managed to squeeze out of a window.

A: Section 241(6) of the Labor Law imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To prevail, you must establish the violation of an Industrial Code Rule that sets forth specific, applicable safety standards, and that your injuries were proximately caused by such violation.

Many such rules come to mind. Under Rule 23-4.2(a), certain sides or banks of a trench or excavation must be provided with sheeting and shoring. Under Rule 23-4.2(c), any unbraced sloped excavation which extends below the ground water table must be under the direct supervision of an experienced person. Under Rule 23-4.4(a), where any excavation is not protected by sloped sides or banks, it must be protected by sheeting, shoring and bracing. Under Rule 23-9.4(c), where power shovels and backhoes are used for handling material, firm, level and stable footing must be provided. Under Rule 23-9.5(a), excavating machines must not be used where unstable conditions or slopes of the ground or grade may cause such machines to tilt dangerously.

Your attorney will also allege a violation of section 200 of the Labor Law, which is a codification of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place to work.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2019-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Trick or Tree

Q: Yesterday, my husband and I went to my friend’s tree farm to pick out a Christmas tree, same as always. A storm had pounded us the previous evening, and the fields were covered by snow. We boarded a wagon, got out and walked toward the trees. Some trees had been cut down, so they were missing. It turned out that some of the stumps were covered with snow. I tripped over one, hit another stump and fractured my elbow.

Q: Yesterday, my husband and I went to my friend’s tree farm to pick out a Christmas tree, same as always. A storm had pounded us the previous evening, and the fields were covered by snow. We boarded a wagon, got out and walked toward the trees. Some trees had been cut down, so they were missing. It turned out that some of the stumps were covered with snow. I tripped over one, hit another stump and fractured my elbow.

My friend had not warned me about snow-covered tree stumps. There were no signs, and there was no marked-out path. My husband had already picked out a tree (he didn’t notice my fall). Then my friend pulled out a waiver. I signed it so long as she’d give us the tree for free and deliver it. This morning, they delivered the wrong tree.

A: An attorney would say that there was a ‘condition precedent’ that she give you the tree for free and deliver it. Was this condition oral, or did your friend write it into the ‘waiver’? If this condition was not written in, then does something written-in contradict it? For example, does the waiver say that you get the tree at 50% off, so long as you pick it up by tomorrow? If nothing written-in contradicts the condition precedent, then a court should be willing to hear your oral testimony about it.

If the waiver contains a ‘merger clause’ things can get stickier. Such a clause states that all understandings are merged into and superseded by the written piece of paper.

As you can appreciate, each case is different and calls for its own direct detailed discussion with an attorney.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2019-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Trim That Tree

Q: My vehicle was struck in an intersection. The other driver entered the intersection after failing to stop at a stop sign. He says the he could not see the stop sign. It was obscured by a tree that was located between the sidewalk and the curb. The tree had been planted by a home builder.

Q: My vehicle was struck in an intersection. The other driver entered the intersection after failing to stop at a stop sign. He says the he could not see the stop sign. It was obscured by a tree that was located between the sidewalk and the curb. The tree had been planted by a home builder.

A: As a general rule, a builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow. A contractor that performs its work in accordance with contract plans may not be held liable unless those plans are so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous.

Suppose that the builder can establish (1) that in planning for the location of the curbside trees at this project, it relied on and followed plans that were prepared by its architect and engineer and were approved by the City and (2) that it assumed no duty to return to the site to remedy any defects that might eventually develop. You will need to prove that the contract plans were so clearly defective that a contractor of ordinary prudence would not have performed the work. Otherwise, you have no claim against the builder.

You appear to have a stronger case against the City. In general, a city has a duty to maintain its roads in a reasonably safe condition, and that duty includes the trimming of trees in highway rights-of-way to assure the visibility of stop signs. The City may be liable for a dangerous condition of a street or traffic sign if it has ‘actual or constructive notice’ of that condition. Under these circumstances, your attorney is likely to contend that the City bears the heavy burden of establishing that it had no notice.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2013-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Contact

Disclaimer

Connect with Us