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$1,200,000 result- cited in The New York Jury Verdict
Reporter
XVIII/36-42 Labor Law - Fall From Mobile Scaffold -
Shoulder Injuries With Surgery
Jimmy and Millie Kerstens v. Grant & Bauman Partnership; Lehr
Construction Corp.; C-Tech, Inc.; RCN Telecom Services of New
York, Inc.; and Cirocco & Ozzimo Contracting, Inc. 22318/97 Date
of Settlement 1/9/01 Bronx Supreme
Pltf. Atty: Alan M. Greenberg, Manhattan
Deft. Atty: Renaud T. Bleecker of Michael Harris, Elmsford, for
Grant & Bauman, Lehr, C-Tech, and RCN; Edwin B. Winder of Gary
A. Cusano, Tarrytown, for Cirocco & Ozzimo Contracting
This action settled during jury selection for $1,200,000. On
3/6/97, Pltf., a 44-year-old fireproofer for American Spray-On,
was working at a warehouse that was being converted into a
telecommunications center for Defts. RCN and C-Tech. Pltf.
sprayed cement-like material from a pump and hose apparatus
while standing on a mobile scaffold 8 feet off the floor. When a
new area needed to be sprayed, the scaffold was pushed around
the warehouse while Pltf. stood on it. Pltf. claimed that his
co-worker suddenly moved the scaffold, throwing him off it.
There were no guardrails and Pltf. was not given a safety belt.
Pltf. was granted summary judgment on liability, pursuant to
Labor Law §240(1), against Grant & Bauman and Lehr Construction.
These Defts. were granted indemnification against Deft. Cirocco
& Ozzimo, the fireproofing subcontractor, who hired Pltf.'s
employer to do the work. Defts. RCN and C-Tech were dismissed.
Injuries: cerebral contusion; subarachnoid hemorrhage of the
brain; internal derangement of the left shoulder with
impingement of the subacromial region, requiring arthroscopic
decompression. Pltf. was hospitalized for 1 week and he
subsequently received neurological treatment for migraine
headaches, orthopedic treatment for shoulder pain, and
physiatric care for shoulder rehabilitation. He underwent a
subacromial decompression in January 1998. Pltf. never returned
to work. he claimed that he is no longer able to lift the pump
and hose apparatus required for his work and because he is a
high-school dropout and suffers headaches, he would have very
limited prospects for other emplyment. Third-party employer was
granted summary judgment for Pltf's failure to prove a grave
injury under the Omnibus Worker's Compensation Act. Defts.
claimed that Pltf. exaggerated his injuries and the he had made
an excellent recovery. They claimed that he is capable of
working in many different fields. Deft. subpoenaed Pltf.'s
credit card records and found that Pltf. had paid for a scuba
diving certification course in the Summer 1999. Pltf. would have
testified that he took the course in an effort to find work in a
dive shop, since he had been a diver for 20 years before the
accident. He would have claimed that due to buoyancy, his
activities in the water were not inconsistent with his inability
to fireproof. Demonstrative evidence:medical illustration of
shoulder surgery; shoulder model; brain model; economist's chart
depicting loss of earnings and benefits. Specials: $2,500,000
for past and future lost earnings; $30,000 for medical and
hospital expenses. Carrier: CNA for Cirocco & Ozzimo. Settlement
apportionment: The entire settlement was paid by Cirocco &
Ozzimo.
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