Diego Martinez v. Araz Services Inc; Favorite Properties LLC; John Vella; & Charles Vella, No. 20256/06

Ronald P. Berman, New York, NY (Favorite Properties LLC)
Paul Kovner, Rubin, Fiorella & Friedman LLP, New York, NY
(Araz Services Inc.)
None reported (Charles Vella, John Vella)

On June 19, 2006, plaintiff Diego Martinez, 42, an undocumented day laborer was a member of a crew that was demolishing a two-story building that was located at 249 N. Ninth St., in the Williamsburg section of Brooklyn. Martinez and other workers were demolishing a second-floor wall, and they had been instructed to do so by pulling ropes that had been secured to the wall. During that operation, Martinez fell off of a 7-foot-tall tool container. He sustained injuries of an arm and a shoulder.

Martinez sued the project’s general contractor, Araz Services, Inc.; the premises’ owner, Favorite Properties LLC; and two other parties; Charles Vella and John Vella. Martinez alleged that the defendants violated the New York State Labor Law.

Martinez’s counsel ultimately discontinued the claims against Charles Vella and John Vella. The matter proceeded against Araz Services and Favorite Properties.

Martinez claimed that he needed to climb onto the container to achieve the appropriate angle to be able to pull down the wall. He contended that the container lacked side rails and that he was not provided a safety harness or any other type of device that could have prevented his fall. Thus, Martinez’s counsel argued that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Martinez was not provided the proper, safe equipment that is a requirement of the statute.

Defense counsel contended that Martinez should not have climbed onto the container and that he negligently pulled the rope while standing near the container’s edge. They argued that the accident was solely a product of Martinez’s negligence and recklessness.

Martinez’s counsel moved for summary judgement of liability, and the motion was granted. The matter proceeded to damages.

Martinez claimed that he sustained a mid-shaft fracture of his left arm’s humerus and a partial-thickness tear of his left, nondominant shoulder’s rotator cuff. He was driven to Woodhull Medical and Mental Health Center, in Brooklyn. He underwent minor treatment.

After some three weeks had passed, Martinez’s fracture was addressed via open reduction and the internal fixation of intramedullary rods and locking screws. On June 22, 2007, his left shoulder’s injury was addressed via arthroscopic surgery that included decompression of the shoulder; debridement of damaged tissue; a chondroplasty, which is the repair of damaged cartilage; and an arthoplasty, which is the reconstruction of a joint.

Martinez contended that he suffers residual pain that stems from his left arm and shoulder, and he claimed that he suffers a residual reduction of his left shoulder’s range of motion. He further claimed that he cannot resume work, though he did not present a lost-earnings claim.

Martinez sought recovery of his past medical expenses, $286,121 for his future medical expenses, and damages for his past and future pain and suffering.

Defense counsel contended that Martinez’s fracture was not complicated, that it has completely healed and that there are no residual effects of the fracture. They also contended that the arthroscopic surgery revealed that Martinez’s left shoulder’s injury stemmed from a degenerative condition that antedated the accident. They further contended that any residual injuries were a result of Martinez’s failure to under physical therapy that had been recommended.