In this informative interview, Elan Wurtzel, an experienced personal injury attorney, shared a shocking account of a condominium development accident in Queens. As workers labored on the construction site, a gust of wind blew through the area, toppling the building under construction. Elan’s pursuit of justice for a severely injured carpenter revealed negligence, with shortcuts taken and safety compromised during construction. Despite numerous challenges, Elan’s determination led to a favorable settlement. A skilled architect, David Busch, provided valuable insights into the design and construction process, emphasizing the importance of establishing clear means and methods during construction. The interview also explored building maintenance and its impact on a structure’s lifespan.
Can you provide us with a summary of the case involving the condominium development accident in Queens?
Elan: This accident happened several years ago. It was a new housing development in Corona, Queens, College Point. It was expected to be an excellent economic boom for the community, providing jobs and new housing. I am trying to remember how many units it was, but it was under construction at the time of the accident. At least 25 laborers, carpenters, and different kinds of workers were working on the building, performing construction work, including framing the structure. According to the initial news report, a strong gust of wind came off the East River and knocked down the entire structure. It reminded me of Little Red Riding Hood – “Huff and puff, and I’ll blow your house down.” At the time, many city officials were involved – their take on it was that this was a freak occurrence, an act of nature, an act of God, that no one could have foreseen, that no one could have prevented it, and that it was very unfortunate. Every worker in the structure fell with the collapse of the structure; some workers were more seriously injured than others. I had a client, a carpenter, who was very seriously hurt. We brought a lawsuit against everyone involved, the general contractor and subcontractors. Additionally, we made claims against the architect. We discovered the design plans for the construction were not improper – the general contractor and owner insisted that speed was more important than safety. They instructed the laborers to take shortcuts, and the bottom line was that they failed to brace the structure sufficiently to withstand foreseeable wind gusts. The winds that led to that accident weren’t extreme, but it collapsed because the building wasn’t properly built and braced during construction. The winds were not a freak of nature but were common in the area and known to exist. The building should have been constructed with these conditions in mind.
How would you describe this personal injury case?
Elan: The incident involved the construction site, which would be considered a construction accident. There were issues with Labor Law 240, a robust statute that protects construction workers working at elevated heights. It requires a general contractor and the owners to provide specific safety devices for workers who are at an elevated height. So, in this situation, you’re in a building that was under construction–several stories high–– that is a height-related, elevation-risk accident, and Labor Law 240 would be implicated, as well as other general theories of negligence and laws intended to protect construction workers.
David, would you like to comment about unsafe building structures?
David Busch: Thanks for having me today – it is a construction-related accident, as Elan had described. The architect designs plans conforming with the New York State construction code and what it takes to make the building stand up. As an architect, you typically design the structure for its finished state. When going through the NYS Construction Code, you’re doing various calculations. It’s all about the wind load, design loads, shear walls, and pressures to ensure the structure is stable when it’s completed. Plans are designed in conformance with appropriate codes to obtain a permit. Construction must be completed, and the building must ultimately turned over to the owner for occupancy. When Elan spoke about how the building was partially constructed, it was a four-story building, and two stories of it will be constructed. Some means and methods have to be established for the construction process, typically the general contractor’s or third-party’s assignment. To this point, what temporary bracing or shoring will be implemented to maintain that building in the event of a windstorm? I’m not necessarily a qualified expert to speak to temporary bracing as it is an engineered system, perhaps designed by a re-shoring engineer. Some engineers are hired just for these mid-scopes of construction design. For instance, when you have adaptive reuse on a building, you might have some existing walls that will remain, and you will do infill construction with steel and existing masonry buildings. So, architects will design that project for its ultimate fit. But while doing that new construction, you put up new steel. What’s holding that old wall in place? To the same point, what supports a new building that’s not complete? That requires a specialty engineer.
Elan: Generally speaking, when we bring claims for construction-related accidents, we don’t usually claim an architect because their role is very defined in drawing plans. The plans are correctly drawn up, designed, and approved by the City of New York or some municipal building department. But in this particular case, the architect undertook additional responsibilities: monitoring and supervising the construction–the architect was on the construction site regularly. During the litigation, the architect tried to minimize his role, claiming he was only there to visit and see how his design was being built. But he did more than just visit and look. His activities added another layer of negligence: a professional who undertook to monitor and supervise and failed to do so, allowing unsafe and dangerous shortcuts to take place, all contrary to the plans drawn for the building.
So, the architect was acting as a construction manager as well?
Elan: He undertook that responsibility; whether he had a separate contract for it or not, he did undertake some of the duties of a construction manager.
David Busch: You can be hired for various contract phases as an architect. As an architect, I might only be hired to design and formulate a concept design. I’ve satisfied my contract that the plan is given to somebody else to finish the construction drawings. They become the architect of record that would file for a permit. Alternatively, I might be the architect hired for the construction administration. Or, as an architect, you can be hired for all three – design, documentation, and construction processes. As an architect, one has to be aware of what the contract is and precisely what one’s responsibilities are. While an architect may not be contractually engaged to look for unsafe conditions during site visits, it stands to reason that if one is found, the architect must do something about it, such as notify the contractor, the owner, or an agent of the permitting authority. It is not unreasonable to inquire who the site’s safety manager is and assess conditions. Further, who’s responsible for rectification of identified concerns, etc., so it can be a fine line for an architect?
Elan: In the construction accident, David mentioned “ means and methods,” and that’s important. Every party involved in a construction project looks to compartmentalize their responsibilities and liabilities. For example, a construction manager would say, I’m not responsible for the painting contractor’s work. They are responsible for the means and methods of doing their work. So what does that mean? How do I build the wall? How do I screw in these studs? How do I lay down those tiles? We now have a different case where multiple parties are involved. Someone was seriously hurt, and each contractor said, I’m not responsible for what the other guy did; they are solely responsible for their means and methods. There are some important exceptions to the general rule of thumb that you’re not responsible for the negligence of others involving “means and methods” of work. They’re essential exceptions – one is as an owner, if you’re working in an area of ingress or egress to a building, there’s an absolute responsibility to make that area of entrance or exit safe. So an owner would have responsibility for the negligence of a subcontractor who, using their means & methods, screws it up. New York State imposes that liability on the owner. Means and methods are fundamental concepts, and it’s something that contractors argue to limit their responsibility.
What would you say were the extent of the injuries suffered by the construction workers?
Elan: I only represented one of the construction workers, but quite a few were injured. I remember the most severe injury that one of the workers had resulted from falling. He was impaled and had severe internal injuries requiring surgery. My client suffered serious neck and back injuries. A laborer relies on his body as a tool, and s/he has to be fit and healthy to do the necessary climbing ladders lifting heavy loads – my client was out of work for an extensive period. Even though he was young, that accident impacted him throughout his whole working life. An accident five years or ten years ago can have lifelong repercussions.
Were there any significant challenges that you faced with this case? I know you’ve mentioned that in the past, people needed to go to the doctor sooner or have proper documentation.
Elan: This case was in Queens County, and the significant challenge was that so many parties were involved. There were so many injured workers. I remember we were in court, and everyone was there. This was the kind of accident you don’t expect to occur without negligence and carelessness. A building doesn’t just fall because a wind comes and something terrible happens. So, the case’s challenge was managing multiple parties with different injuries. The court did an excellent job of focusing on the nature of each work injury and settling the cases. Although my client probably had the most modest injuries, I was the lead attorney on the case in the sense that I pushed everything. I ensured all the deadlines were adhered to and handled the case aggressively. So when we did have settlement conferences, whose case got settled first? Mine, because they wanted me out of the picture. That’s great, Elan. I’d also like you to talk about the case’s outcome, and then I’ll have a few questions to ask Dave about architecture.
Elan: For my client, the case was settled very favorably. We made a settlement demand, and because of how we handled the case – there was no negotiation. We got everything that we asked for in the case.
Did it lead to any improvements in safety measures?
Elan: The project was completed, and I’m sure it’s still standing today, so they figured it out.
Are buildings only guaranteed for a certain amount of time, or do they have any expiration?
Elan: All I know is that the Leaning Tower of Pisa is still up, although it’s leaning. Listen, structures can last a long time if you take care of the property, maintain it, and the materials themselves. I’m sure they have a life expectancy but take the horrible tragedy down in Florida, where the building collapsed. Why did that happen? It wasn’t a freak of nature; the building wasn’t properly cared for. Just look at the Roman Colosseum, which is still standing – these structures can last long if you take care of and maintain them. All right, that’s up to the city or the owner.
David Busch: The owner’s right to maintenance?
Elan: David, I’d like your thoughts on a building’s life expectancy.
David Busch: I took the question from a slightly different perspective, but I’ll follow your lead since I 100% agree. For instance, we were involved in two projects on multistory buildings in NY. The buildings were constructed in the early turn of the Early 1900s; both buildings had a steel frame and masonry exteriors. We were initially called to do some interior finish improvements. When we assessed the buildings, we informed ownership that we would avoid getting involved in interior refinishing. We notified the client there needed to be more improvement to the interior, with proper investment to improve the exterior envelope. The buildings were so old and hadn’t been maintained to the point where the facades were literally into the interior, which led to rehabilitating the systems. So we advise the owners you can’t make just interior improvements here. It’s ill-spent. It is a more significant issue related to the maintenance of the buildings. Through assessment and recommendation, they ultimately committed to complete building renovations, roof facade, windows doors, and then the interiors, which is the right approach; of course, recognizing future preventative maintenance is essential. As for the second question about the life of a building and guarantees, I understand NYS law requires a contractor to provide a one-year workmanship warranty for the work of their contracted trade. Material warranties will vary. To this, the expected life of a building is based on the project’s design parameters, materiality, and maintenance. In theory, all buildings are designed for life – it is just a matter of what life or what use. All buildings must be prepared to be safe for inhabitants and the public.
Dave, if someone wanted to contact you to find out about your services, what would they do?
David Busch: Our website is buschassociatespc.com, or follow us on Instagram — and of course, you are always welcome to reach out and speak with us directly at (631) 969-0900. I’d happily pick up the phone and have a one-on-one conversation.
Elan, how would people contact you if they were in a construction accident?
Elan: You can call us at (516) 822-7866. We’re online at wurtzellaw.com, Facebook, Instagram, email, phone call, or Zoom. We’re available for in-person meetings. We always want to make it easy for our clients to communicate with us, contact us, and get the information they need. If you’re injured in an accident, Call Us. We Can Help.