Hudson Yards Lawsuits in the Commercial Observer

Nearly 150 Construction Workers Sued Hudson Yards for Injuries on the Job

Just three months ago, on the morning of Nov. 11, 2019, scaffolding on the 18th floor of a still-under-construction portion of the $25 billion Hudson Yards mega-development collapsed with two construction workers on it.

The workers, along with two others, were rushed to Bellevue and Mount Sinai West hospitals where one faced serious, but non-life threatening, injuries, according to the New York Daily News. The Department of Buildings hit the site, 50 Hudson Yards, with a stop-work order.

“The accident,” the Daily News wrote, “appears to be the first at the construction site, according to city Buildings Department records.”

It was not the first injury there. Not even close.

Court records show that the four workers were part of more than a hundred others who claimed they were injured building Related Companies and Oxford Property Group’s 28-acre development.

From 2013 until this year, nearly 150 workers at the site filed personal injury lawsuits against Related, various limited liability corporations tied to the developer and the general contractors like Tishman Construction (named in 63 of the suits), a Commercial Observer review of court records shows. And, it should be noted, the injuries only represent those who filed lawsuits in the city’s Supreme Courts.

It started with a single suit in 2013, when construction of the first tower commenced, but the bulk of the claims started hitting in 2016, when work ramped up on the site.

The workers’ claims range from simply falling on a wet beam or tripping on a piece of debris at the construction site to more severe incidents where they were hit by broken pieces of equipment falling on them, court records show. At least a dozen mentioned the project’s scaffolding, from pieces of scaffold falling onto workers to other complaints of the workers themselves falling or claiming they were not given proper safety equipment. Many of the workers appear to have settled their cases, while others remain ongoing.

Claims have continued to come in against the project, including one filed on January 8 on behalf of Justin Hartley. Hartley was working at 50 Hudson Yards on Dec. 21, 2019, when he was hit by a falling beam and “sustained permanent traumatic injuries to his head, neck, back, fractured [his] left leg, right shoulder, right arm and right bicep,” according to court records. Hartley’s lawyer, Joseph Kazmierczuk, did not respond to a request for comment.

A spokesman for Related declined to comment. A spokesman for contractor Tutor Perini, named in numerous suits, did not respond to a request for comment.

“While we do not comment on pending claims, we worked closely with the building trade unions and our partner contractors to implement a robust safety program on all of the projects at this site,” John Gallagher, a spokesman for Tishman Construction, said in a statement. “Anyone pushing a different narrative is intentionally distorting the facts to serve some other purpose.”

Experts told CO that the number of lawsuits Hudson Yards racked up looked unusually high for one project — even one the size of Hudson Yards — and could point to issues of construction safety at the site.

“To have 150 cases out of just one spot, that’s certainly alarming,” said personal injury lawyer Glenn Faegenburg, who is not involved in any of the Hudson Yards cases but recently won a record-setting $36 million settlement with the city on behalf of a worker. “I think that developers, contractors and owners are cutting corners … They want to, obviously, get [buildings] up as quick as possible so they can start making money. Sacrificed at that cost is worker safety.”

Charlene Obernauer, the executive director of the union-backed workers’ rights organization the New York Committee for Occupational Safety and Health (NYCOSH), said while she wasn’t familiar with Hudson Yards specifically, anytime NYCOSH sees a plethora of injuries coming from one job site that usually stems from a lack of safety training early on.

“From our perspective the high number of injuries and fatalities, in this case injuries, that you see directly correlate with enforcement training for workers on the job,” Obernauer said. “When we’re seeing issues for job sites in the city, you really have to think about why are we having these issues.”

Others said that given the size and scope of Hudson Yards — which employed about 25,000 construction workers during its years-long development — it didn’t seem out of the ordinary for it to be hit with that many lawsuits.

“Over the course of six years, 25,000 workers contributed to the project — 0.005 percent of which were injured,” said a spokesman for Building and Construction Trades Council (BCTC) — which had a public battle with Related accusing the developer of union-busting at the site that was scrapped last year. “The reality is that construction is a dangerous industry. We recognize that, our members recognize that, and the developers of Hudson Yards recognize that as well. We take every injury that occurs on the work site very seriously and ensured that the highest standards of safety were met throughout the entirety of this project.”

Many pointed the blame to a 135-year-old piece of legislation, New York State Labor Law 240, which they feel makes it too easy for workers to sue developers regardless of who’s at fault.

“To me, that is the singular cause of that many claims,” said Louis Coletti, the president and chief executive officer of the Building Trades Employers’ Association of New York City. “It’s the trial attorney’s Christmas gift every day.”

Labor Law 240, commonly known as the Scaffold Law, assigns “absolute liability” to developers and contractors at construction sites for workers’ injuries if they fall from an elevated height or are hit with a falling piece of material. New York is the only state in the country with a law like it.

Illinois repealed its version of the bill in 1995 — with many arguing it drained taxpayers’ dollars by driving up insurance rates for state-built projects — and later attempts to bring it back have failed.

“There are surely legitimate claims from the Hudson Yards site, that said there is equally assuredly claims that are driven by the scaffold law,” said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York which is pushing to make changes to the law. “It drives a massive amount of our litigation.”

Opponents argue the law created a “cottage industry” of personal injury lawyers who sniff around job sites looking for cases because they are easy to win and can be lucrative. Critics said it doesn’t take into account if the worker decides not to use safety equipment provided for them or if they’re intoxicated on the job.

“Neither the owner or the contractor has the ability to present any evidence in court that perhaps the worker contributed in any way to the negligence,” Coletti said. “The only decision is how large the judgment will be.”

In Hudson Yards’ case, Financial District-based firm Sacks and Sacks filed more than 50 of the cases, including three of the four workers injured in the November 2019 scaffold collapse. Kenneth Sacks, a senior partner at Sacks and Sacks and the lawyer on many of the suits, did not respond to repeated requests for comment.

Even with the law’s liability provisions, Faegenburg argued it doesn’t mean all cases covered by it are slam-dunks to win and developers fight tooth-and-nail against each one, dragging them out for years.

“These are very, very hotly contested cases, they go on for years,” Faegenburg said, adding that his recent victory took three years, which was a short amount of time for these cases. “The fight is so strong and there are a lot of ways to defend against [the Scaffold Law].”

In the ongoing case of ironworker Thomas Brielmeier — who said he was hurt working at the Shops and Restaurants at Hudson Yards in 2015 after he fell while climbing down the ladder of a scaffold when the structure “jumped” — Related’s lawyers asked if Brielmeier had previously received drug or alcohol counseling, brought up a 2012 car accident linked to his name (it was actually his father), how much he bench presses and slight discrepancies in his injury claims, such as the fact he didn’t label it a fall at first because “a fall is like a major accident from a really high point,” according to court records.

“This is a personal injury action,” Related’s lawyer Brian McLaughlin said when questioned by Brielmeier’s lawyer about the relevance of the drug addiction questions in a deposition. “This is a personal injury action. His health is at issue.”

Despite numerous calls to repeal the Scaffold Law over the years, Obernauer said it needs to remain on the books because it’s a vital tool in increasing construction workers’ safety.

“The Scaffold Law is essential so that workers can be safe on the job and that workers cannot be exploited if a worker falls on the job,” she said. “It has been found to be an important tool that protects workers through and through.”

Lawyers who’ve worked on Scaffold Law cases said the accidents were often linked to lapses of job safety protocols at the site by contractors in an effort to get the project up quicker.

“On the cases I’ve worked on, it just seems like they’re just in a huge rush to get it done and that’s more important than worker safety,” said Matthew Haicken of Haicken Law, who was not involved in any of the Hudson Yards cases and noted he didn’t have knowledge of work conditions at the site. “They put profits over people and I’ve seen it at many different construction sites.”

Haicken added the workers hurt on the job often have no control of the safety of a site and often put themselves in dangerous positions at the behest of their foreman.

“[Workers] don’t bring their own scaffolding with them, they don’t bring their own harness, they’re completely reliant on the general contractor and the building owner to provide a safe workplace,” he said. “Blaming the workers is really just not fair.”

Construction worker injuries and fatalities have been on the rise the past several years in New York City and it is the deadliest industry, outranking manufacturing and transportation, in the Big Apple. In 2018, 22 construction workers died on the job, a slight increase from the 20 who died in 2017, according to recently released numbers by the U.S. Bureau of Labor Statistics.

While the number of construction-related injuries rose by 14 percent from 2018 to 2017, there was a slight downtick in 2019, city data shows. As of November 30, 2019, the most recent numbers available, the New York City Department of Buildings found 551 construction workers were hurt on the job in 2019, a 21 percent decrease from the same time last year.

The bulk of the categorized injuries in the DOB’s statistics in 2018 and 2019 came from workers who fell; the second most frequent injury was workers having materials falling on them, a common theme in many of the Hudson Yards lawsuits like the case of Sylvan Bridgemohan.

Bridgemohan was working on the construction of the office tower 10 Hudson Yards on May 18, 2015, on an unknown floor when he walked to one side of an “improperly constructed” scaffold that then tipped over causing him to fall and become pinned under it, according to a complaint filed by Sacks and Sacks. The case dragged on until 2018 when a judge ruled in favor of Bridgemohan for an unknown sum, though Related’s lawyers quickly filed an appeal that is still ongoing.

In the November scaffolding collapse, Hrant Roubian, Anthony Auletta and Slyvester Fearon have all filed claims against Hudson Yards over the injuries. Looking at the incident, Faegenburg said it was a simple fix to add some cross-bracketing to the scaffold to make it safer. “It’s not rocket science to prevent a lot of these accidents,” he said.

Stebbins of the Lawsuit Reform Alliance of New York argued that any of these cases that fall under the purview of the Scaffold Law make them an easy one to win for lawyers, with the only real question in court how much the payout will be.

“They never have to prove negligence in order to win massive judgments,” Stebbins said. “We’re talking damages, we’re no longer talking about any sort of provable facts.”

The settlements can reach in the millions of dollars — with the amount won generally not listed in court documents. Lawyers in the Hudson Yards cases just asked for damages in court documents with no listed dollar amounts. Only one ongoing case listed $127,500 in lost wages as the amount it was seeking.

There have been numerous efforts to repeal or amend the Scaffold Law — which was put in place after the Brooklyn Bridge was built — but have failed because of lobbying efforts by the personal injury lawsuits, both Stebbins and Coletti said.

Stebbins’ recent push calls to add comparative negligence to the Scaffold Law which would allow the courts to see if the worker was at all at fault for the injury, something Stebbins thinks will be necessary if marijuana is legalized in the state.

“They specifically cite that marijuana use is not a defense, if we have more people high on marijuana or intoxicated we’re going to have less safe job sites,” he said. “We want to keep the safety provision in the law change the liability provision in the law to match to liability provisions in any other state.”

Stebbins added that the law makes it harder and more expensive to get insurance for construction projects in the city. Fewer insurance companies want to underwrite projects because they can’t easily gauge risk and on average projects in the city spend eight to 10 percent of their budget on getting policies, compared to the two to three percent in other states.

BTEA’s Coletti wants the law completely scrapped from the books or at the very least set up an alternative dispute process with medical professionals after an injury that could potentially defer lawsuits in the future.

“It’s not in [the workers] interest, it’s not in the owner’s interest, it’s not in the general contractors’ interest,” Coletti said. “It’s only in the interest of the trial attorneys.”

Faegenburg warned that if the laws get repealed developers will start skirting safety procedures at sites around the city and instead wants the Scaffold Law to be stronger to prevent the current batch of injuries.

“It will be a free-for-all if they know they can get away without having to be on the hook,” he said. “Greed will overcome safety. They need to know that they’ll be held financially accountable.”

NYCOSH’s Obernauer argues one way to make construction safer is for more developers to use union labor. NYCOSH and Coletti have found the vast majority of injuries and fatalities come from non-union job sites.

Related was locked in a public battle with the BCTC after Related refused to sign a labor agreement with the union for the second phase of the project. Last year, the pair reached an agreement that would let Related negotiate contracts directly with individual unions, instead of just the BCTC.

Hudson Yards has been an “open-shop” site for much of its construction, meaning non-union workers can be hired to work on the site and can still drive down safety at sites, Obernauer said.

“The non-union laborers — they’re being exploited to work harder and faster — those laborers can make a mistake on the job that can impact the [union workers],” Obernauer said. “Unsafe work conditions that happen on one area on the work site can contaminate the work site for other workers that may be unionized.”

But even with the constant talk of changing or getting rid of the Scaffold Law, Haicken said it’s an easy fix for developers to not be inundated with personal injury lawsuits even currently.

“If they just made the construction sites safe there would be no problem,” he said.

Read it online here: https://commercialobserver.com/2020/02/nearly-150-construction-workers-sued-hudson-yards-for-injuries-on-the-job/