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Carpenter fell 12 feet from ladder on top of scaffold
| CASE: |
Renee Sisalima v. 845 UN Limited Partnership & Food Scope Midtown, LLC d/b/a Megu Midtown, No. 104334/06 |
| SETTLEMENT: |
$1,325,000 |
| COURT: |
Suffolk, Supreme, New York |
| JUDGE: |
Doris Ling-Cohen |
| PLAINTIFF ATTORNEY(S): |
Stephen J. Murphy, (lead), Block O’Toole & Murphy, L.L.P., New York, NY |
| DEFENSE ATTORNEY(S): |
Joseph Deliso, Joseph Deliso & Associates, New York, NY
Sue C. Jacobs, Goodman& Jacobs, L.L.P., New York, NY
Joseph A.H. McGovern, Wilson Elser Moskowitz Edelman & Dicker LLP, on behalf of Delos Insurance Co., White Plains, NY (Kudos Construction Corp.)
Andrew Polin, Polin, Prisco, & Villafane, Glen Cove, NY (845 UN Limited Partnership, Food Scope Midtown, LLC)
Phillip A. Tumbarello, Wilson Else Mascots Edelman & Dicker LP, on behalf of Delfs Insurance Co., White Plains, NY (Kudos Construction Corp.)
Gene A. Weisberg, Berger Kahn, on behalf of Tokio Marine & Knocked Fire Insurance Co., Marina Del Ray, CA (845 UN Limited Partnership, Food Scope Midtown, LLC) |
| FACTS: |
On Feb. 28, 2006, plaintiff Renee Sisalima, 24, a carpenter, was working on the construction of Megu Midtown Restaurant at 845 First Avenue, in Manhattan, for the general contractor, Kudos Construction Corp. Sisalima was instructed to use plasterboard to patch a section of wall extending about 20 feet above the floor. To reach the top portion of the section, he bought an A-frame ladder that was placed on top of a rolling Baker scaffold. He then leaned the ladder in a closed position against the wall on which he was working. While Sisalima was standing on the ladder and using a drill, the ladder and scaffold became unsteady and collapsed, causing him to fall 12 to 16 feet to the floor. He fractured his face and sustained multiple injuries.
Sisalima sued the property owner, 845 UN Limited Partnership, and the Property’s lessee, Food Scope Midtown LLC. He alleged that the defendants violated the New York State Labor law.
Food Scope Midtown presented a third-party claim against the general contractor and Sisalima’s employer, Kudos Construction, seeking indemnification.
Kudos Construction also brought a second third-party claim against its insurance carrier, Everest National Insurance Co.; the subcontractor, Ram Creative Woodworking Inc.; and Ram Creative Woodworking’s insurance carrier, Utica First Insurance Co. It alleged that it should be indemnified by the insurance carriers and Ram Creative Woodworking.
A third-party claim was then brought by UN Limited Partnership and Food Scope Midtown against Ram Creative Woodworking. They alleged that Ram Creative Woodworking provided them with a defective scaffold and violated Labor Law §§ 200, 240(1) and 241(6).
The court found that Sisalima was not working under the scope of Ram Creative Woodworking’s work. As such, Ram Creative Woodworking and Utica First were dismissed from the case. As a result, the court determined that Everest National Insurance had to indemnify Kudos Construction. The court also found that Kudos Construction was obligated to indemnify Food Scope, but not 845 UN Limited Partnership. The matter then proceeded to mediation.
Sisalima claimed that he was not provided an appropriate ladder or the proper safety equipment needed to complete the work of patching the 20-foot high section of wall. Sisalima’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Sisalima was not provided the proper, safe equipment that is a requirement of the statute. They also contended that the site was not properly safeguarded and that, as such, it violated Labor Law § 241(6)
The defendants contended that Sisalima was specifically instructed by his foreman to use his own company’s tubular welded scaffolding to reach the upper portion of the wall and not to use the scaffold owned by another contractor. They pointed to evidence in the record that the tubular welded scaffolding was constructed at the site and was available to the plaintiff mere feet away from where he was working. The defendants also claimed that Sisalima was recalcitrant in disobeying the direct and immediate instruction of his foreman to use his the proper scaffolding and that this instruction was repeatedly given to him as recently as the very morning of the incident. Defense counsel argued that Sisalima’s negligence was the sole proximate cause of his injuries. They further contended that the plaintiff could have simply stood on top of those available scaffolds to perform his work, rather than needing to lean a ladder on top of the improper scaffold.
Defense counsel also intended to introduce evidence of Sisalima being specifically instructed by his foeman to use a safety harness and tie himself off while n working at heights. They contended that Sisalima was further recalcitrant in failing to utilize the harness and tie that was available to him on the site and that he was ordered to use it. In addition, defense counsel claimed that the plaintiff was recalcitrant in refusing to wear a hard hat, despite a direct instruction to the contrary. They claimed that there was evidence in the record stating that Sisalima had previously complained about wearing a hard hat because it was uncomfortable. |
| INJURIES/ DAMAGES: |
Sisalima sustained multiple facial fractures, as well as injuries of his left knee, neck and lower back. His facial injuries included fractures of the nasal bones, a comminuted fracture of the nasal septum, fractures of the nasal spine, a fracture of the medial wall, a left maxillary sinus fracture of the anterior wall extending to the inferior orbital rim, as well as a medial fracture of the floor of the left orbital bone. His spinal injuries included herniated discs at C4-5, and L4-5, and his knee injury consisted of a torn meniscus.
Three weeks after the incident, Sisalima underwent nasoseptal surgery. He also required two surgeries on his lumbar spine, including a percutaneous disc ablation and later a diskectomy with fusion at L4-5. In addition, Sisalima ultimately required arthroscopic surgery to treat the injury to his left knee.
Sisalima claimed that he was unable to return to work as a result of his injuries. Plaintiff’s counsel contended that Sisalima would require future MRIs, EMGs, orthopedic visits, additional physical therapy and continued pain medication. In addition, they claimed that Sisalima would need to undergo another surgery on his spine and two total knee replacements in the future. As a result, plaintiff’s counsel contended that Sisalima’s future medical expenses would amount to $2,158,665.
Sisalima sought recovery of his past and future medical expenses and damages for his past and future pain and suffering.
Defense counsel contended that Sisalima’s face looks completely normal at present and that he suffers no remaining facial pain. They also claimed that Sisalima had essentially recovered from any injuries he had sustained. In addition, defense counsel claimed that diagnostic studies of the plaintiff’s lumbar and knee injuries showed degenerative findings and argued that these injuries were preexisting and did not warrant surgical intervention.
Defense counsel further contended that Sisalima was an undocumented worker who did not pursue a claim for lost earnings, so money that could have been awarded to the plaintiff for alleged future medical needs should be reduced to the cost of such services in his country of origin. |
| VERDICT: |
The parties negotiated a $1,325,000 pretrial settlement, which was established via the guidance of mediator Stephen Crane, of JAMS. Of the total settlement, Kudos’ primary carrier, Everest National Insurance contributed $1 million; Kudos’ excess carrier, Delfs Insurance Co., contributed $200,000; and the insurance carrier for Food Scope Midtown and 845 UN Limited Partnership, Tokio Marine & Knocked Fire Insurance Co., contributed $125,000. |
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