In Scekic v SL Green Realty Corp.   2014 NY Slip Op 30186(U)  January 21, 2014  Sup Ct, New York County  Docket Number: 113386/10  Judge: Doris Ling-Cohan a worker is injured while up on a 15 foot ladder which suddenly splits apart.  He falls, and a Labor Law 240(1) case is born.  but, what happened to the ladder, and how does that affect the case.  More importantly, was it the obligation of any attorney to preserve or seek to preserve the ladder?

"This action arises out of a construction site accident. Plaintiff Zoran Scekic, a steamfitter, was allegedly injured on September 30, 2010 when the ladder he was standing on split in two, causing him to fall 15 feet to the floor. Plaintiff and his wife, Vesna Scekic (together, plaintiffs), subsequently commenced this action seeking recovery for violations of Labor Law § § 240 ( 1 ), 241 (6), 200 and for common-law negligence.  Plaintiff testified at his deposition that he was working as a  teamfitter for FL Mechanical on the date of his accident (Plaintiff EBT Transcript, at 27). According to plaintiff, FL Mechanical provided all of his tools and equipment except for hand tools (id. at 34). While he was looking through blueprints, a supervisor named Mike from Structure Tone called him and told him that a pipe needed to be raised that was too low (id. at 45-46). Plaintiff testified that the pipe needed to be raised because the contractors could not put the ceiling below that pipe (id. at 47). Plaintiff told Mike that he needed a ladder to reach that 15-foot height because FL -3- [* 4]
Mechanical had already sent back its ladder that would have been tall enough to reach that area a
week or two earlier (id. at 47, 141). Mike then pointed to a ladder and told plaintiff to "use that ladder" (id. at 48). The ladder, which plaintiff described as an extension ladder, was located about 30 or 40 feet away (id at 48, 49). Plaintiff further testified that while he was on the ladder and tightening bolts, "the ladder broke up somehow," and "just split, you know, in two pieces," causing him to fall (id. at 52, 55, 59). Plaintiff was not wearing a harness at the time of his accident (id. at 59). Plaintiff testified that he only received instructions from Mike and his boss Silvio as to what to do on the job (id. at 128)."

"Plaintiffs move to strike Structure Tone’s answer based upon spoliation of evidence. In support, plaintiffs contend that Structure Tone’s superintendent, Michael Sansone, observed plaintiff and the ladder lying on the ground in two pieces after the accident, but did nothing to preserve the ladder. Plaintiffs maintain that Sansone was on notice that plaintiff would commence a lawsuit as a direct result of the accident. In opposition, the Structure Tone defendants contend that Structure Tone did not destroy the ladder; rather, Schindler destroyed the ladder on the date of the accident. The  structure Tone defendants argue that plaintiff never demanded production of the ladder, and that there is no need to preserve the ladder for a Labor Law§ 240 (1) claim. In any event, the Structure Tone defendants contend that they produced copies of photographs of the ladder that were  identified at the depositions (Levien Affirm. in Support, Exh. 20). "Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them" (Kirkland v New York City Housing. Auth., 236 AD2d 170, 173 [1st Dept 1997]). In determining the sanction to be imposed on a spoliator, the court must examine the extent that the non-spoliating party is prejudiced by the destruction of the evidence and whether dismissal is warranted as "a matter of elementary fairness" (id. at 175 [internal ·quotation marks and citation omitted]). Striking a pleading is warranted only where the loss of the evidence leaves the affected party without the means to prosecute or defend the action (see Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [1st Dept 2002]). However, where there is independent evidence that permits a party to adequately prepare its case, a less drastic sanction is appropriate (see e.g. Jfraimov v Phoenix Indus. Gas, 4 AD3d 332, 333-334 [2d at 2004] [negative inference charge for destruction of truck and propane tanks]). ere, plaintiffs’ request to strike Structure Tone’s answer is denied. It is undisputed that the ladder was destroyed after the accident. However, plaintiffs have not shown that Structure Tone destroyed the ladder. Structure Tone’s project superintendent, Michael  Ransone, testified that Structure Tone did not destroy the ladder, and that he heard that Schindler destroyed the ladder based upon superstition in the trade (Sansone EBT, at 38-40). In any case, plaintiffs have ·not demonstrated that they are without the means to prosecute any of their claims based upon the loss of this evidence."

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.