On Aug. 4, 2004, plaintiff, 24, an undocumented laborer, was a member of a work crew that was renovating a building located at 42-49 Colden St., in the Flushing section of Queens. He was constructing a sidewalk bridge with a height measured at about 11 feet. While he was standing on top of the structure, he noticed that a supporting side panel was crooked. He leaned over the side of the structure, removed the panel's nails and fell while he was realigning the panel. He landed on the ground, and he sustained injuries of his feet.
Plaintiff sued several of the building's owners and operators, the building's managing agents, the estate of a partner of those six defendants, and the building's remaining owners and operators. Plaintiff alleged that the defendants violated the labor law.
The defendants impleaded the plaintiff’s employer. The direct defendants alleged that West New York Restoration controlled and directed his work functions. They sought indemnification, and indemnification was granted via summary judgment.
Plaintiff’s counsel claimed that the incident stemmed from an elevation-related hazard, as defined by Labor Law 240(1), and that he was not provided the proper, safe equipment that is a requirement of the statute.
West New York Restoration's counsel contended that the plaintiff knowingly disabled one of the structure's supporting panels. He argued that the plaintiff’s actions were the sole proximate cause of the accident.
Plaintiff’s counsel moved for summary judgment of liability, and the motion was granted. The matter proceeded to damages.
Plaintiff sustained fractures of his calcanei, which are the heels. The fractures were addressed via open reduction and internal fixation. He also underwent fusion of his left foot's subtalar joint, which joins the ankle and the heel. The surgery was followed by physical therapy.
The plaintiff claimed that he suffers intermittent residual pain, residual pain that emerges when he walks, and residual pain that emerges during prolonged periods in which he is standing. He contended that he cannot resume physical work.
Plaintiff sought recovery of damages for his past and future lost earnings and his past and future pain and suffering. Opposing counsel contended that the plaintiff exaggerated the extent of his injuries. He claimed that he produced a post-accident videotape that revealed that the plaintiff was easily walking while wearing flip-flops.
The parties negotiated a $4 million pretrial settlement. The settlement included a $3 million cash payment, and the remaining money was placed in an investment vehicle.
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