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hazard, as defined by Labor Law 240(1), and that Fanning was not provided the proper, safe equipment that is a requirement of the statute. He also contended that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law 241(6). He further contended that the defendants violated Labor Law 200, which defines general workplace-safety guidelines.
A Turner Construction employee claimed that Fanning was using a 6-foot-tall wooden ladder that was virtually new, that the ladder did not collapse and that Fanning fell because he lost his balance. He contended that the accident was a result of Fanning having selected a ladder that was not of sufficient height.
Fanning’s counsel moved for summary judgment of liability. Justice Saliann Scarpulla granted the motion, finding that the defendants violated Labor Law 240(1). Defense counsel appealed, but the appellate division, First Department, affirmed. The matter proceeded to a trial that addressed damages.
INJURIES/DAMAGES Fanning sustained a complete tear of his left knee’s anterior cruciate ligament and a partial-thickness tear of the same knee’s meniscus.
Fanning was placed in a wheelchair, and he was escorted to nearby New York- Presbyterian Hospital. He underwent minor treatment.
In June 2009, Fanning underwent arthroscopic surgery that addressed his left knee. He subsequently underwent about six months of physical therapy.
Fanning claimed that his left knee remained weakened and that the knee occasionally failed. An MRI scan revealed a recurrent tear of the knee’s meniscus. In April 2010, Fanning underwent a second arthroscopic surgery. The procedure was followed by an additional course of physical therapy. A subsequent MRI scan revealed further tearing of the same meniscus, so a third arthroscopic surgery was performed in November 2012.
Fanning claimed that his left knee remains painful and weakened. He undergoes physical therapy, and he claimed that he will require replacement of the knee within five years. He further claimed that his injuries prevent his resumption of manual labor.
Fanning sought recovery of about $700,000 for future medical expenses, a total of about $4 million for past and future loss of earnings and benefits, and unspecified damages for past and future pain and suffering.
The defense’s expert orthopedist submitted a report in which he opined that Fanning’s residual effects should not hinder Fanning’s performance of his everyday activities, though he acknowledged that knee-replacement surgery would be beneficial to Fanning.
The defense’s vocational-rehabilitation expert submitted a report in which he opined that Fanning can perform work that would provide annual earnings of about $40,000,
2014
TOP SETTLEMENTS NY
though he acknowledged that Fanning had been earning more than $100,000 annually prior to the accident.
RESULT After the presentation of opening statements, the parties negotiated a settlement. The defendants’ insurers agreed to pay a total of $5.3 million. The defendants’ primary insurer agreed to pay all funds available from a policy that provided $2 million of cov- erage prior to the subtraction of legal fees and other costs, and the defendants’ excess insurer agreed to pay the balance of the settlement.
EDITOR’S COMMENT This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents.
NUMBER NINE
MOTOR VEHICLE
Pedestrian — Single Vehicle — Intersection — Right Turn — Crosswalk — Wrongful Death
Bus fatally struck pedestrian at intersection
AMOUNT $5,000,000
TYPE Mediated Settlement
CASE Estate of Montilla v. Eddie N. Noriega, City of New York, et. al. VENUE Bronx Supreme
JUDGE Sharon A.M. Aarons
DATE April 1, 2014 PLAINTIFF
ATTORNEY(S) Jacob Oresky, Jacob Oresky & Associates, PLLC, Bronx, NY -Continued on p16
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