XX/25-40 LABOR LAW - FALL FROM SCAFFOLD - SUMMARY JUDGMENT ON LIABILITY

BULGING CERVICAL AND LUMBAR DISCS, TORN MENISCI, AND CONCUSSION

SETTLEMENT: Zach D. v. City of New York; Perini Corporation v. Nelson Maintenance Services, Inc. 4317/96 Date of Settlement 11/14/02 Kings Supreme

Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, P.L.L.C., Woodbury.

Deft. Atty: David E. Potter of Lazare, Potter, Giacovas & Kranjac, L.L.P., Manhattan, for City of New York and Perini Corp.

Jeffiey S. Feinerman of Meiselman, Denlea, Packman & Eberz, P .C., White Plains, for Nelson Maintenance Services.

This case settled just before plaintiff rested for $1,300,000. On 12/1/94, plaintiff, a 39-year-old union painter employed by Third-party defendant Nelson Maintenance Services, fell off a double Baker scaffold which collapsed under him while working at the sewage treatment plant at Coney Island in Brooklyn. Defendants contended that the accident did not happen as plaintiff claimed. In June 1999, plaintiff was granted summary judgment on the issue of liability pursuant to Labor Law §240(1 ).

Injuries: bulging cervical disc at C4-5; bulging lumbar disc at L4-5, with radiculopathy on the right side

confirmed by EMG; torn medial and lateral menisci in the right knee requiring arthroscopic surgery and future total knee replacement; mild concussion with post-concussion syndrome and headaches; questionable chip fracture of the right calcaneus. Defendants claimed that the arthroscopic surgery that was performed was a routine operation, and did not result in permanent disability. Defendants also contended that there was no fracture to the calcaneus. Plaintiff claimed that he is unable to work, and he has not returned to work. He claimed lost earnings in the range of $40,000 to $50,000 per year plus benefits. Defendants disputed the extent of plaintiff s lost earnings, claiming that he had a sporadic work history with union earnings of only $20,000. Plaintiff's vocational rehabilitation expert testified that plaintiff had sustained past lost earnings of $500,000 and future lost earnings of $1,500,000. The judge struck his testimony, finding that there was insufficient factual basis, since no W-2s or tax returns, were provided. Specials: $26,000 for past medical expenses; $200,000 for future medical expenses. Demonstrative evidence: MRIs; EMGs; models of the spine and knee. Settlement apportionment: Perini paid $150,000; Nelson paid $1,000,000, policy coverage, and $150,000 from the State Insurance Fund 1B coverage. Carriers: GAN for Nelson ($1,000,000 policy); St. Paul for Perini.

Pltf. Expert(s): Dr. Irving Friedman, neurologist, Brooklyn; Dr. Ali Guy, physiatrist, Manhattan; Dr. Frank Carr, orth surg., Brooklyn; Stuart Sachnin, Ph.D.,vocational economist, Manhattan, ( testimony striken).

Deft. Expert(s): Defendant would have called Dr. Jerome Block, neurologist, Manhattan; Dr. Aldo Vitale, orth. surg., Brooklyn.