Pedro G. Pluas-Aviles v. RAS Management, Inc., No. 36266/08

Pedro G. Pluas-Aviles v. RAS Management, Inc., No. 36266/08

Worker fell 30 feet when scaffold collapsed during disassembly

Suffolk Supreme, NY

Each side moved for summary judgment of liability. During pendency of the motions, the parties negotiated a mediated settlement in which Pluas-Aviles recovered $900,000. RAS Management’s insurer agreed to contribute $50,000, and Pluas-Aviles’ employer’s insurer agreed to contribute $850,000.

$900,000.00

Judge: William B. Rebolini

Date: 12-08-2010

PLAINTIFF(S)

Attorney:

• Sean P. Constable; Block O’Toole & Murphy, LLP; New York, NY, for Pedro G. Pluas-Aviles

• Stephen J. Murphy; Block O’Toole & Murphy, LLP; New York, NY, for Pedro G. Pluas-Aviles

Expert:

• Alan Leiken Ph.D.; Economics; East Setauket, NY called by: Sean Constable, Stephen Murphy

• Richard Schuster Ph.D.; Vocational Rehabilitation; New York, NY called by: Sean Constable, Stephen Murphy

• John Brennan M.D.; Orthopedic Surgery; Southampton, NY called by: Sean Constable, Stephen Murphy

DEFENDANT(S)

Attorney:

• Garrett Duffy; Fogarty Duffy, P.C.; Mineola, NY, for RAS Management Inc.

Expert:

• Edward Weiland M.D.; Neurology; Great Neck, NY called by: Garrett Duffy

• Craig Ordway M.D.; Orthopedic Surgery; Huntington, NY called by: Garrett Duffy

• Edmond Provder C.R.C.; Vocational Rehabilitation; Lodi, NJ called by: Garrett Duffy

Insurer:

• Gemini Insurance Co. for Pluas-Aviles’ employer

• Farm Family Casualty Insurance Co. for RAS Management

Facts:

On May 29, 2008, plaintiff Pedro Pluas-Aviles, 28, a laborer, worked at a residential property that was located at 24 Crossways, in East Hampton. Pluas-Aviles and other workers were replacing a home’s roof and siding, and the work necessitated their use of a scaffold. The scaffold collapsed while Pluas-Aviles was working on it, and he plummeted about 30 feet. He claimed that he sustained injuries of his back and a leg.

Pluas-Aviles sued the project’s manager and/or general contractor, RAS Management Inc. He alleged that RAS Management violated the New York State Labor Law.

Pluas-Aviles noted that the accident occurred while his co-workers were disassembling the scaffold. He contended that he had not been warned that the structure was being disassembled.

Plaintiff’s counsel claimed that the incident stemmed from an elevation-related hazard, as defined by Labor Law ? 240(1), and that Pluas-Aviles was not provided the proper, safe equipment that is a requirement of the statute. They also claimed that the site was not properly safeguarded, as required by Labor Law ? 241(6)

Defense counsel claimed that RAS Management was the renovation project’s manager–not a general contractor. He contended that Labor Law ?? 240(1) and 241(6) are not applicable to project managers.

Injury:

Pluas-Aviles sustained a fracture of one leg’s tibia. He also claimed that he sustained herniations of intervertebral discs of his spine’s lumbar region.

During the week that followed the accident, Pluas-Aviles underwent open reduction and the internal fixation of his fractured leg. On Aug. 13, 2009, he underwent surgical removal of the fixation hardware. His back’s injuries were addressed via conservative treatment.

Pluas-Aviles claimed that he retains a limp, and he contended that he suffers residual pain that prevents his resumption of manual labor. His education and command of the English language are limited, and, as such, he cannot easily obtain sedentary work. He also claimed that he must undergo additional treatment.

Pluas-Aviles sought reimbursement of a workers’ compensation lien that totaled $68,843.99. He also sought recovery of his future medical expenses, his future lost earnings, and damages for his past and future pain and suffering.

Defense counsel contended that Pluas-Aviles does not require additional medical treatment. The defense’s vocational-rehabilitation expert opined that Pluas-Aviles can resume his last job or some other form of manual labor.