2008 WL 941856 (N.Y.Sup.)
For Opinion See 2007 WL 6844986 (Trial Order), 2007 WL 6083344 (Trial Order), 2004 WL 5666052 (Trial Order), 2003 WL 25802817 (Trial Order)
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Supreme Court, Twelfth Judicial District, Bronx County, New York.
Manuel Barariso, also known as Manuel A. Balarezo, Manuel Atanacio Balarezo, Manuel Antanacio Balarezo Sumba & Manuel Balarezo Sumba, Maria Laura Cabrera Sumba, Indv., Maria Laura Cabrera Sumba & Paul Testaverde as Administrators of the Estate v. S.L. Green Leasing Inc. S.L. Green Leasing, LLC, S.L. Green Realty Corp., Dever Properties N.V., Inc., 215 Park Avenue South Associates L.P., Tri State Scaffold & Equipment Supplies, Inc., Nesa, Inc., Nesa Roofing & Restoration, Inc., & Braxton Engineering, P.C.
No. 21348/02
DATE OF VERDICT/SETTLEMENT: January 28, 2008
TOPIC: CONSTRUCTION – LABOR LAW – CONSTRUCTION – ACCIDENTS – CONSTRUCTION – SCAFFOLDS AND LADDERS – SLIPS, TRIPS & FALLS – FALL FROM HEIGHT
Laborer Fell 14 Stories When Bricks Broke Scaffold
SUMMARY:
RESULT: Settlement
Plaintiffs’ counsel moved for summary judgment of liability, and the judge found that Labor Law § 240(1) had been violated. Liability was attached to 215 Park Avenue South Associates, Dever Properties, Nesa, Nesa Roofing & Restoration, and Tri State Scaffold and Equipment. However, the matter ultimately resulted in a $3 million pretrial settlement that was funded by the insurers of 215 Park Avenue South Associates, Dever Properties and S.L. Green Realty. Tri State Scaffold and Equipment’s insurer did not contribute, but its $5 million policy was exhausted in the settlement of other lawsuits that stemmed from the instant accident.
EXPERT WITNESSES:
Plaintiff: Angela M. Hegarty, M.D.; Forensic Psychiatry; Central Islip, NY Edmund Mantell, Ph.D.; Economics; Scarsdale, NY Howard C. Adelman; Pathology; New York, NY
ATTORNEYS:
Plaintiff: Todd D. Greenberg; Addabbo & Greenberg; Forest Hills, NY (Estate of Manuel Barariso, Maria Laura Cabrera Sumba); Paul Testaverde; Addabbo & Greenberg; Forest Hills, NY (Estate of Manuel Barariso, Maria Laura Cabrera Sumba)
Defendant: Jody C. Benard; Brody, Benard & Branch LLP; New York, NY (Tri State Scaffold and Equipment Supplies Inc.); Liza R. Fleissig; Quirk & Bakalor P.C.; New York, NY (215 Park Avenue South Associates L.P., Dever Properties N.V. Inc., S.L. Green Leasing Inc., S.L. Green Leasing, LLC, S.L. Green Realty Corp.); None reported (Braxton Engineering, P.C., Nesa Inc., Nesa Roofing & Restoration Inc.)
JUDGE: Paul A. Victor
RANGE AMOUNT: $2,000,000-4,999,999
STATE: New York
COUNTY: Bronx
INJURIES: Sumba fell a distance of about 14 stories. He was instantly killed, but the plaintiffs’ expert pathologist opined that Sumba sustained “excruciatingly painful” abrasions and “brush burns” that were occurred during his fall. The estate’s expert forensic psychiatrist noted that Sumba’s fall lasted several seconds, and photographs revealed that Sumba suffered scrapes of the tips of his fingers. The expert forensic psychiatrist opined that Sumba was attempting to grasp the building or the scaffold, and, thus, she opined that he experienced conscious terror, suffering and fear of impending death.
Facts:
On Oct. 24, 2001, plaintiff’s decedent Manuel Atanacio Balarezo Sumba, 41, a construction worker, worked at a building that was located at 215 Park Ave. S., in the Gramercy Park section of Manhattan. Sumba and four other men were working on a 14-story-tall scaffold. During the course of the day, bricks fell off of the building and landed on the scaffold. The scaffold collapsed, and Sumba and his co-workers fell onto the ground. Each sustained fatal injuries.
Sumba’s widow, Maria Laura Cabrera Sumba, acting individually and as administrator of her husband’s estate, sued the property’s owner, Dever Properties N.V. Inc.; the building’s managing agent, 215 Park Avenue South Associates L.P.; the project’s general contractors, Nesa Inc. and Nesa Roofing & Restoration Inc.; a subcontractor that erected the scaffold, Tri State Scaffold and Equipment Supplies Inc.; and several other parties: Braxton Engineering, P.C.; S.L. Green Leasing Inc.; S.L. Green Leasing LLC; and S.L. Green Realty Corp. The plaintiffs alleged that the defendants violated the labor law.
Nesa and Nesa Roofing & Restoration defaulted, and the plaintiffs did not pursue their claim against Braxton Engineering. The matter proceeded against the remaining defendants.
Plaintiffs’ counsel claimed that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Mr. Sumba was not provided the proper, safe equipment that is a requirement of the statute.
Sumba died Oct. 24, 2001, at age 41. He was survived by his wife and three children.
Sumba was an Ecuadorian immigrant who was an undocumented resident of the United States. His family resided in Ecuador, and evidence established that he supported them. The plaintiffs’ expert economist opined that the family’s economic losses would total $894,189. Sumba’s estate sought recovery of wrongful-death damages that included those economic losses and damages for Sumba’s pain and suffering.
Defense counsel contended that Sumba’s pain and suffering spanned a mere two or three seconds. They also contended that undocumented aliens may not recover lost earnings, but plaintiffs’ counsel contended that lost earnings may be recovered by aliens who have not filed false employment documents. Plaintiffs’ counsel’s argument was based on the New York Court of Appeals’ decision in BalBuena v. Ideal Realty LLC,6 N.Y.3d 338 (2006).
ALM Properties, Inc.
Bronx Supreme
PUBLISHED IN: VerdictSearch New York Reporter Vol. 25, Issue 41
2008 WL 941856 (N.Y.Sup.)
