- James F. – I-Beam Falls from Elevated Jack Fracturing Arm
- Arnaldo G. – Worker Falls from Ladder while Hanging Cable
- Charles M. – Worker Falls from Plank into Ditch
- Javier M. – Worker Receives Electric Shock and Falls from Scaffold
- Jimmy Q. – Worker Falls Through Hole in Roof
- Scott B. – Worker Falls from Ladder Shatter Patella
- Zach D. – Fall from Scaffold Results in Spinal Injuries
FRACTURED ULNA AND ULNAR IMPACTION SYNDROME- SURVEILLANCE FILM
SETTLEMENT: James and Sharon F. v. Brick & Ballerstein, Inc.; Dynaire Corp. 8237/97 Date of Settlement 4/9/02 Queens Supreme
Pltf. Atty: Mark T. Freeley and James V. Mattone of Buttafuoco & Assoc., Woodbury.
Deft. Atty: James M. Furey of Perez & Furey, Uniondale, for Brick & Ballerstein,
Roy W. Vasile ofCurtis, Vasile, Devine & McElhenny, Merrick, for Dynaire.
This action settled for $500,000 during the presentation of plaintiff s case. On 5/29/96, plaintiff, a 34-year-old sheet metal mechanic employed by Aeroduct, was injured while working on the roof of a building located at 1085 Irving Ave. in Ridgewood. Brick & Ballerstein had hired Dynaire Corp. to install commercial air conditioning units on the roof of the building. Dynaire subcontracted with its subsidiary, Aeroduct, to fabricate the steel I-beam supports for the units. Testimony indicated that the plaintiff was told to use a high-jack with one helper to move the 600-lb I-beams off a dolly and onto a parapet wall. Plaintiff claimed that when the I-beam had been placed on the jack in the load position; he and the co-worker jacked it up 4 feet to push it onto the parapet wall when the jack kicked out and the beam fell, crushing his arm against the wall. Plaintiff claimed that the bottom of the jack was on wheels, and that there were no locks, blocking, or cribbing mechanisms. Plaintiff brought this action pursuant to Labor Law §241(6) and claimed violations of New York Code Rules and Regulations 23-1.27, which applies to raised loads on jacks and the use of a jack under the direction of a supervisor. Defendants would have argued that this Rule did not apply to this situation and would have argued that plaintiff was the direct supervisor or foreman on the job. Plaintiff s Labor Law §240 claim was dismissed on summary judgment motion.
Injuries: fracture of the right (dominant) ulna. Plaintiff was hospitalized overnight. His fracture was casted for 6-8 weeks and splinted for 4 additional weeks. Plaintiff underwent physical therapy, and hand surgery was performed after an arthrogram revealed a ligament tear and ulnar impaction syndrome. He never returned to work, and claimed permanent loss of use of the right hand. Plaintiff s expert would have testified that plaintiff is occupationally disabled, but if he completed vocational training, he could earn approximately $31,000 per year. (He had been earning $37,000 at the time of the accident.) Defendants would have argued that plaintiff is not totally disabled, and that he has the ability to earn $32,000 per year. Demonstrative evidence: Defendants would have introduced a surveillance video allegedly showing that plaintiff is able to use his hand. Settlement apportionment: The entire settlement was paid by Dynaire. Carriers: Chubb for Brick & Ballerstein; Royal for Dynaire and Aeroduct.
Pltf. Expert(s): Plaintiff would have called Dr. Arthur Mirza, treating orth. surg., Smithtown; Stuart Sachnin, Ph.D., vocational economist, Manhattan.
Deft. Expert(s): Defendants would have called Dr. Frank Hudak, orth. surg., East Meadow; Dr. S. Murthy Vishnubhakat, neurologist, Manhasset; Dr. Seth Paul, orth. surg., Cedarhurst, James Pascuiti, vocational rehabilitation, Springfield, New Jersey.
SETTLEMENT: Arnaldo G. v. Gumley-Haft, Inc. and Park 79th Corp. v. U.S. Security Systems, Inc. 18649/96 Date of Settlement 10/17/00 Kings Supreme
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Woodbury.
Deft. Atty: Thomas J. Hall of Brody, Fabiani & Cohen, Manhattan, for Gumley-Haft and Park 79th John Fazzini of Fazzini & Kalapoutis, P.C., Huntington Station, for U.S. Security.
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.
Steamfitter fell from planks that bridged ditch.
Settlement:$1,000,000 Charles M. and Christine M. v. City of New York, R.C. Dolner, Inc., R.C.
Dolner, R.C. Dolner LLC, and R.C. Dolner Construction, No. 111455/02
3rd-Party Case City of New York and R.C. Dolner, Inc. v. Real Automatic Sprinkler Co.
Court: New York Supreme
Judge: Marilyn Shafer
Plaintiff Attorney(s): Daniel P. Buttafuoco, Daniel P. Buttafuoco & Associates, Woodbury, NY.
Defense Attorney(s): Michael T. Blumenfeld, Conway, Farrell, Curtin & Kelly P. C., New York, NY.
Facts & Allegations: At approximately 11:15 a.m. on Dec. 11, 2001, plaintiff Charles M., 38, a steamfitter, was installing a sprinkler system at the Metropolitan Museum of Art in New York. M. was standing on a 10-foot, 2-inch x 10-inch plank, which he had placed across a series of retaining walls, when he slipped. He fell approximately 5.5 feet and landed in a ditch.
M. sued the owner of the museum, the city of New York; the work site’s general contractor, R.C. Dolner LLC; and the company’s subsidiaries, R.C. Dolner Inc. and R.C. Dolner Construction. The city of New York was indemnified by R.C. Dolner, pursuant to the terms of the contract between the parties.
M. claimed that the defendants violated Labor Law §§ 240(1) and 241( 6). He contended that he requested scaffolding from R.C. Dolner Construction and was denied. M. claimed that a scaffold was required by law, and that the lack of scaffolding created an unsafe work environment. As a result, he was forced to use the plank.
The city and R.C. Dolner filed a third-party action against M.’s employer, Real Automatic Sprinkler Co. Real Automatic defaulted because it had no insurance coverage; its broker had purchased the wrong insurance policy.
The accident was unwitnessed. M.’s co-worker, his father, testified that he saw his son on the ground after the fall.
At the conclusion of the defendants’ case, Judge Marilyn Shafer granted a directed verdict on M.’s Labor Law § 240(1) claim. His Labor Law § 241(6) claim was put before the jury.
Injuries/Damages: Ankle, sprain; fracture, ankle; loss of services
M. presented to his orthopedist, and an X-ray revealed a questionable chip fracture of his right ankle. He also claimed to have sustained sprains of both ankles. M.’s expert orthopedist testified that M. had extensive cartilage and ligament damage, and that the damage was causally related to the accident. He testified that M. did have a chip fracture of the right ankle, and that he is a candidate for ankle-fusion surgery. He opined that M. can no longer work as a steamfitter, and that he has permanent limitations.
M.’s expert economist estimated that M.’s past and future lost earnings and benefits would total $2.5 million. M.’s wife, Christine, presented a loss-of-services claim.
The defendants claimed that M.’s injuries were pre-existing and degenerative in nature. They claimed that the injuries stemmed from M.’s weight (275 pounds), a previous ankle fracture and his steamfitter work, and that the injuries were not related to the fall.
The defendants’ expert radiologist testified that X-rays performed on the day of the accident showed extreme, pre- existing degenerative arthritis with osteophytes. He opined that the condition was not related to the fall. The defendants’ expert orthopedist testified that M.’s ankle condition was related to his weight and an ankle fracture that occurred when M. was 17. The defendants’ vocational-rehabilitation expert acknowledged that M. could no longer work as a steamfitter. However, she testified that M. could eventually earn a yearly $90,000 salary as a computer operator with management responsibility.
Result: The parties reached a $1 million cash settlement prior to summations. R.C. Dolner contributed $500,000,
Real Automatic contributed $ 250,000 and Real Automatic’s insurance broker contributed $250,000 after conceding it was negligent for purchasing the wrong insurance policy for the company. The city of New York did not contribute to the settlement.
Demand: $2,500,000 (prior to trial)
Offer: $250,000 (prior to trial)
Insurer(s): The St. Paul Companies Inc. for R.C. Dolner, R.C. Dolner Construction, R.C. Dolner Inc. and R.C.
Plaintiff Expert(s) Dr. John Feder, orthopedics, Rockville Centre, NY (treating surgeon)
Dr. Edmund Provder, vocational rehabilitation, New York, NY
Dr. Steven Pinsky , pain management, Rockville Centre, NY
Leonard R. Freifelder, economic analysis, New York, NY
John Cannizarro, engineering, New York, NY
Defense Expert(s) Joyce Mesch-Spinello, Ph.D., vocational rehabilitation, New York, NY
Jerome Block, M.D., neurology, New York, NY
Jerry Lubliner, M.D., orthopedic surgery, New York, NY
A. Robert Tantleff, radiology, Roslyn, NY
Editor’s Note: Defense counsel did not respond to a faxed draft of this report or a phone call.
HERNIATED LUMBAR DISC AND CARPAL TUNNEL SYNDROME
SETTLEMENT: Javier M. v. Structure Tone, Inc. and P.E. Stone, Inc. v. Petrillo Stone Corp. 112012/97 Date of Settlement 4/30/01 New York Supreme
Pltf. Atty: Mark T. Freeley of Buttafuoco & Associates, Woodbury.
Deft. Atty: Alexandra C. Karamitsos of Wilson, Rave, Conboy, Cozza & Couzens, P.C., White Plains, for Structure Tone.
Gerald P. Dwyer of Dwyer & Brennan, Manhattan, for P .E. Stone.
Roger McTieman of Barry, McTiernan & Moore, Manhattan, for Petrillo Stone.
This action settled prior to jury selection for $690,000, plus the waiver of a $152,830 Workers Compensation lien. Pltf., a 42-year-old stone setter, was setting stone on a building wall on 12/23/96 at a construction site in Manhattan when he received an electric shock. Pltf. claimed that a halogen lamp attached to the scaffold he was using had exposed wires, which sent a current into the scaffold, causing him to fall about 10 feet. Pltf. fell onto a co-worker, but he hit his hand and back on the scaffold as he fell. All pretrial motions, including Pltf. s motion for summary judgment pursuant to Labor Law §240, were denied. Prior to settlement, Pltf.’s employer, Petrillo Stone, had assumed the defense for Structure Tone.
Injuries: herniated lumbar disc requiring a discectomy; carpal tunnel syndrome requiring surgery. Pltf. was out of work for 2 years. He returned to work as a limousine driver. Carriers: CNA for Petrillo, which had assumed the defense for Structure Tone; Travelers for P.E. Stone; Kemper for Petrillo Stone on Workers Compensation lien. Settlement apportionment: $615,000 paid by Petrillo for Structure Tone; $75,000 paid by P.E. Stone; $152,830 Workers Compensation lien waived by Third-party Deft. Petrillo.
SETTLEMENT: Jimmy Q. v. Joseph Gazza v. Six Gs Contracting Corp. 13341/96 Date of Settlement 8/12/99 Suffolk Supreme
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Woodbury.
This structured settlement has a present value of $600,000 cash plus a future payout of $1,557,316, plus the waiver of a $100,000 Workers Compensation lien. Pltf., a 25-year-old roofer, claimed that on 1/26/96, he was working at 5 Wellwood Ave. in East Farmingdale when he fell through a hole in the roof, which had been cut for a skylight, and fell 20 feet to the frozen ground. Pltf. was granted summary judgment pursuant to Labor Law §240 on 3/9/98. Deft. was granted complete indemnification from Third- party Deft., Pltf. s employer, Third-party Deft. Six Gs. Third-party Deft., however, through their attorney, believed that it did not have any insurance coverage and failed to notify the State Insurance Fund of the liability claim against it. The State Insurance Fund disclaimed because of the lack of timely notice. The trial was ready to proceed, with Six Gs being uninsured and represented by private counsel. Note: Following jury selection, an Order to Show Cause was brought by Six Gs original attorney, who claimed that he could not try the case because of a conflict of interest arising from the fact that Third-party
Deft. could decide to sue him for malpractice. Judge Catterson disbanded the jury, and gave Third-party Deft. 30 days to obtain new counsel. The case settled in the interim.
Injuries: bilateral perilunate-lunate fractured dislocation of the wrists resulting in bilateral Kienbock s disease.
Pltf. did not return to work, and he claimed that he would require bilateral wrist fusions. Deft. contended that Pltf. would have been able to return to work in a different field. Demonstrative evidence: Pltf. would have used medical illustrations of the wrist fracture and surgery; models of wrist.
Pltf. Expert: Pltf. would have called Dr. John Leppard, orth. surg., Woodbury.
SETTLEMENT: Scott and Jamie B. v. U.S. Tennis Association, Inc.; Turner Con & Lehrer; McGovem Bovis, Inc. 129112/95 Date of Settlement 3/16/99 New York Supreme
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Woodbury.
This Labor Law action settled during trial for $1,250,000, plus the waiver of a $67,000 Workers Compensation lien. On 10/20/95, Pltf., a 38- year-old union iron worker, fell from an unsecured ladder while working at the construction site of the U.S. Tennis Center in Flushing Meadows. Prior to trial, Pltf. was granted summary judgment pursuant to Labor Law § 240. There was no Third-party action against Pltf.’s employer.
Injuries: comminuted fracture of the patella with displacement of the bone fragments. Pltf. underwent excision of the patella and open reduction and internal fixation. Pltf.’s knee is disfigured. Pltf. did not return to work, and he claimed that he will require a future knee replacement. He was earning approximately $60,000 a year, plus benefits, at the time of the accident. Deft. claimed that Pltf. would not need a knee replacement, that he had good range of motion in the knee, and that he was able to return to work. Demonstrative evidence: model of the knee; photographs; diagram of the knee and surgeries.
Pltf. would have called Dr. Ira Chemoff, orth. surg., Stony Brook.
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.