Jose Oscar Membreno v. Avalon Bay Communities, Inc., No.: 26088/86

Joseph M. Puzo, Zaklukiewicz, Puzo & Morrissey, Islip Terrace, New York (Avalon Bay Communities, Inc.) Kevin M. Ryan, Nicoletti Gonson Spinner & Own, LLP, New York, New York (Hampton Drainage & Payment Corporation, Hampton Drainage, Inc.)

On February 16, 2006, plaintiff Oscar Membreno, 27, a laborer, was working in one of the two groups that were performing excavation, trenching and installation of sewer pipe at Avalon Pines, an ongoing construction project that would result in a 450-unit housing complex in Suffolk County. To complete the project, the workers used a Kubota M7030 Series Tractor, a vehicle the workers had often used in the past.

Membreno noticed a co-worker from the other group struggling with another Kubota M7030 Series tractor and went over to see if he could help. The machine’s bucket arm was down and firmly against the ground with the stationary plow on the front of the tractor, below the bucket arm, raised off the ground. Since the bucket was pushed firmly against the ground, the front portion of the tread was off the ground. Membreno positioned his body in front of the actual plow, facing the plow blade and tread, with his feet under the blade. While he worked on the machine, the tractor’s operator went inside the machine’s cab. Membreno claimed that as he attempted to fix the machine’s tread, its blade was wrongfully lowered onto his left foot. He further claimed that as he attempted to escape, the tractor’s blade was lowered further, causing it to cut off a portion of his left foot.

Membreno sued the property’s owner, Avalon Bay Communities Inc. He alleged the defendant violated the labor law. Avalon subsequently brought a third-party claim against Membreno’s employers, Hampton Drainage, Inc. and Hampton Drainage & Pavement Corp. It sought contractual notification.

Membreno claimed that the Kubota M7030 Series tractor they used often malfunctioned as a result of the weather and had to be fixed by the company’s mechanic, while the other workers had to wait around. He contended that, during the work at the Avalon project, the mechanic was working at a different site and that it would have taken about 90 minutes for him to arrive and fix the machine. Membreno claimed that because this was seen as inefficient, the mechanic taught him and a few other workers how to fix the machine and were instructed to fix it themselves instead of calling the company mechanic. He claimed that, as a result, the mechanic was not the only one required to fix the machinery. Plaintiff’s counsel contended that proof of this was that the mechanic left tools at the work site to assist the workers in future repair work if the machine malfunctioned again. Membreno further contended that the defendants encouraged him and other workers to fix the machine themselves instead of calling the company mechanic.

Membreno’s counsel contended that the site was not properly safeguarded and that, as such, it violated Labor Law § 241(6). Specifically, they relied upon Industrial Code § 23-9.5(c), which states that when excavating machines are “not in use, the blade or dipper bucket must be on the ground or grade.” They also relied upon Industrial Code § 23-9.2, which noted that “any servicing or repair of power equipment shall be performed only when such equipment is at rest.”

amputation, foot; amputation, toe; physical therapy; prosthesis; reconstructive surgery, scar and/or disfigurement
The machine’s plow and blade were lowered onto Membreno’s left foot, causing the blade to traumatically amputate four toes and small portions of his foot. He was flown by helicopter to Stony Brook University Hospital, where he was treated for five days. A surgeon attempted to save Membreno’s toes, but was unsuccessful, leaving Membreno with stubs where his four toes were. Membreno continued to follow-up with the surgeon until July 2006, when the physician indicated that Membreno had reached maximum medical improvement for the remaining portions of the toes on the left foot and would live with some discomfort for the rest of his life. After July 2006, Membreno attempted physical therapy at a few facilities. He subsequently was fitted with a prosthetic boot.