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This action settled during damages before Judge Reinaldo Rivera for a cash payment of $1,000,000, plus the waiver of a $110,000 Workers Compensation lien. On 11/15/95, Pltf., a 42-year-old security technician employed by third-party Deft., was hanging security camera cable in Defts. apartment building at the corner of Park Ave. and 79th St. in Manhattan when he fell from a ladder. Pltf. claimed that he obtained the ladder from the building. The superintendent denied that claim, and stated that the building enforced a strict policy that prohibited the lending out of its tools and equipment to outside contractors. Note: Shortly before trial, Defts. produced an affidavit from Pltf.'s coworker stating that he did not witness any accident involving Pltf., and that third-party Deft. provided Pltf. with the ladder that he was using on the subject date. There were no witnesses, and Defts. and third-party Deft. alleged that the accident never occurred. They argued that Pltf. made no report of an accident on the subject date and waited until several days later to seek medical attention.
On 6/18/99, Judge Victor Barron granted Pltf.'s motion for summary judgment on liability under Labor Law §240(1 ). The judge also denied Defts. cross-motion for summary judgment on their common law indemnification claim against third-party Deft., finding a question of fact as to who supplied the ladder to Pltf.. Defts. and third- party Deft. appealed to the Second Department. The case settled at mediation for $650, 000 while the appeal was pending. However, the settlement was subject to the approval of the State Insurance Fund, and when the carrier refused, the settlement expired. Thereafter, the Appellate Division affirmed Judge Barron s decision for Pltf. on summary judgment and denial of Defts. cross-motion, and the demand was raised to $1,500,000 (Guzman v. Gumley- Haft, 712 N.Y.S.2d 45,7/31/00). Defts. and third-party Deft. made no offers until just before opening statements on damages.
Injuries: herniated lumbar discs at L3-4 and L4-5. On 4/27/98, Pltf. underwent fusion surgery with the insertion of two Harrington rods at the Hospital for Joint Diseases. Defts. and third-party Deft. contended that the injuries were pre-existing and degenerative in nature. Pltf. confirmed that he suffered a back injury in a 1977 motor vehicle accident, but claimed that he had not treated for it since 1979.
Pltf. was out of work from the day of the accident until the time of trial. Third-party Deft. had surveillance tapes showing Pltf. reporting to work as a driving instructor. It contended that Pltf. was working off the books and was therefore in violation of Section 114 of the Workers Compensation law. Furthermore, it would have produced evidence from the State Insurance Fund that in statements taken by its investigators, Pltf. made incriminating admissions regarding his employment off the books. Pltf. made a motion in limine to exclude both the surveillance tape and the investigative reports on a CPLR 3103 technicality. The case settled before the judge could rule on the motion. Specials: $32,885 per year for past lost earnings. Demonstrative evidence: two medical illustrations of the fusion surgery. Settlement apportionment: Defts. paid $250,000; Third- party Deft. paid $750,000. Carriers: Great American for Defts.; State Insurance Fund for third-party Deft. |