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SUMMARIES WITH TRIAL ANALYSIS

$1,500,000 RECOVERY – LABOR LAW SEC. 240 – TEMPORARY WOODEN FLOOR COLLAPSES DURING MAJOR RENOVATION PROJECT – PLAINTIFF LABORER FALLS 15 FEET – INTERNAL DERANGEMENT OF KNEE – ACL RUPTURE – FIVE KNEE SURGERIES – ANAL ABSCESS – FISTULECTOMY.

Kings County, NY

This was a Labor Law Sec. 240 (1) case in which the plaintiff, a 34-year-old plumber’s assistant, who was working on a renovation project constructing low income housing, contended that the temporary wooden floor that was used before any wiring or plumbing or sheet rock was installed was inadequately secured, resulting in the floor failing and his falling approximately 15 feet. The plaintiff contended that he suffered severe knee injuries that required five surgeries and an anal abscess that necessitated a fistulectomy.

or substantiate a future income loss claim. The plain- tiff would have contended that the jury should con- sider that he will experience significant pain and suffering for the remainder of a significant life expec- tancy and that the disability negatively affected his future earning capacity.

The case settled prior to the damages trial for $1,500,000. The third party defendant (sub-contrac- tor), whose case was severed at the time the plain- tiff’s motion for summary judgment on liability was granted, contributed to the settlement.

The plaintiff moved for summary judgment against the defendants, owner and general contractor. The defendants’ opposition to the motion included chal- lenging the plaintiff’s version of the accident and that the case was not ripe for summary judgment be- cause a subcontractor was recently impleaded and discovery as to this party was not complete. The plaintiff countered that the plaintiff’s version of the ac- cident was supported by his co-worker, that defen- dant had named the sub-contractor significantly later than should have been the case, that discovery was otherwise complete, and that this factor shouldn’t de- lay the plaintiff’s ability to obtain summary judgment. The Court severed the third party action and granted the plaintiff’s motion for summary judgment on July 6, 2010.

The temporary wooden floor collapsed as the plaintiff was standing and passing copper piping to his co- worker. The plaintiff fell with the wood approximately 15 feet. He contended that he sustained severe knee injuries, including internal derangement and an ACL rupture. The plaintiff contended that he required a to- tal of five surgical interventions, including two open knee surgeries. The plaintiff maintained that despite the surgeries, he will permanently suffer significant pain and a moderate limp. The plaintiff also main- tained that he suffered an anal abscess and required a fistulectomy. This condition ultimately essentially resolved.

REFERENCE

Seixas vs. NYC Partnership Development Fund Co., Inc., et al. Index no. 30653/06, 06-29-11.

Attorney for plaintiff: Glenn Shore of G Shore, PC in New York, NY.

COMMENTARY

The defendants’ arguments, in opposition to the plaintiff’s motion for summary judgment on liability, included the contention that since a subcontractor it impleaded had yet to participate in discov- ery, the case was not ripe for Summary Judgment. The plaintiff ar- gued that the defendants could have impleaded this subcontractor much earlier, that the discovery as to the other parties was com- plete and that it would be fundamentally unfair to permit the de- fense to avoid a liability judgment, after which, the plaintiff would entitled to interest dating back to the time of the summary judg- ment order. The court concurred, severed the third party action, and granted the plaintiff’s motion in July 2010. The plaintiff is an undocumented alien and the plaintiff could not point to prior earnings to support a lost income claim. It is felt, however, that the combination of the description of the severe knee injuries and the plaintiff’s limited education, that underscored his limitations, could well have, as a practical matter, resulted in this factor having an impact on a jury award, notwithstanding the ab- sence of a specific claim for lost income. Finally, the traumatic na- ture of the incident in which the floor literally collapsed under this worker, resulting in his falling some 15 feet, suffering the anal ab- scess and the knee injuries, would be expected to create a strong jury reaction.

The defendant maintained that the plaintiff is an un- documented alien and could not have presented admissible written proof regarding his income history

Volume 28, Issue 9, September 2011

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