On August 1, 2012, Besnik Malecaj was working for an excavation company renovating a townhouse at 45 West 70th Street in Manhattan to convert it from a multi-unit cooperative to a single family residence with an indoor swimming pool. Mr. Malecaj, then 40 years old, injured his neck, back, head and a shoulder when he fell about 11 feet from a wooden plank that had been laid across a corner of the excavated area.

45 West 70th Street

45 West 70th Street

Mr. Malecaj sued the premises owner and the construction manager claiming they violated the Labor Law by failing to provide a safe workplace. The two defendants in turn sued plaintiff’s employer with similar allegations.

The trial judge directed a verdict as to the violations of Labor Law Sections 240 and 241 and the Bronx County jury found that the owner directed and controlled plaintiff’s work, the construction manager acted as a general contractor and all of the defendants violated Labor Law Section 200.

The jury found that plaintiff sustained a grave injury and awarded plaintiff damages in the total sum of $4,741,015 as follows:

  • pain and suffering – $1,630,000 ($1,000,000 past – 10 years, $630,000 future – 20 years).
  • lost earnings – $1,550,000 ($550,000 past, $1,000,000 future – 15 years),
  • medical costs – $1,250,000 ($100,000 past, $1,150,000 future – 20 years), and
  • future loss of retirement benefits – $311,015 (10 years).

While the jury was deliberating, plaintiff and the premises owner defendant reached a high-low agreement. It provided that (a) if the jury were to award a verdict of anything up to $1,000,000 against the owner then the defendant would pay $1,000,000, (b) if the jury were to award a verdict between $1,000,000 and $1,500,000 against the owner that is the amount the defendant would have to pay and (c) if the jury were to award a verdict of more than $1,500,000 against the owner then the defendant would pay only $1,500,000.

Following the verdict, plaintiff’s counsel demanded that owner pay $1,500,000 pursuant to the high-low agreement as a jointly and severally liable defendant under the Labor Law; however, the defendant refused claiming that it only owed $1,000,000 because the jury apportioned only 10% of the liability against it while apportioning 50% to the general contactor and 40% to plaintiff’s employer.

The trial judge agreed with the defendant’s position as did the appellate court in Malecaj v. West 70th Owners Corp. (1st Dept. 2024). The trial judge also ruled that there should be a retrial on the issue of apportionment of damages because only 10% of the fault was assigned to the actual party (the owner) who directed and controlled the work plaintiff was performing when he was injured.

Inside Information:

  • This has been a long and hard fought lawsuit with outstanding and unrelenting efforts by plaintiff’s lawyers at Morgan, Levine & Dolan.
  • Plaintiff’s injuries include a herniated cervical disc at C5-6 that required spinal fusion surgery. traumatic brain injuries leaving him with significant short-term memory deficits, a torn labrum in a shoulder requiring arthroscopic surgery and herniated discs in his back leaving him with permanent pain.
  • Just before trial, the owner sold the building and plaintiff has commenced a new lawsuit seeking to set aside that transfer claiming the sale was a fraudulent conveyance to a shell corporation.
  • The retrial on the issue of apportionment is set for October 8, 2024.

On November 22, 2013, Dorian Wilson went to the emergency department at Kingsbrook Jewish Medical Center in Brooklyn complaining of stomach and flank pain. She reported that she’d taken a home pregnancy test the day before, which was positive. After various tests at the hospital, Ms. Wilson, then 25 years old, was diagnosed with an ectopic pregnancy and given Methotrexate, a chemical abortion, to terminate the pregnancy.

Over the next two weeks, Ms. Wilson sought additional medical opinions and learned she’d been misdiagnosed and that her pregnancy had in fact been normal. As a result of the detrimental and irreversible effects of the Methotrexate (it can cause devastating birth defects), though, Ms. Wilson was forced to undergo a dilation and curettage (D&C) procedure, to terminate her pregnancy.

Ms. Wilson sued her obstetrician-gynecologist claiming that he should not have ordered Methotrexate for her. The Kings County jury agreed and then awarded her damages in the sum of $1,500,000 which included $250,000 for pain and suffering (five years – all past) and $1,250,000 for mental suffering, emotional and psychological injury (not broken down as to past and future).

The jury’s verdict as to liability was upheld on appeal in Wilson v. Finkelstein (2d Dept. 2024) as was the pain and suffering award but the appeals court reduced the award for emotional distress to $700,000.

The pain and suffering award was essentially for pain plaintiff endured from the Methotrexate and subsequent abortion, as well as her persisting inability to enjoy and experience the pleasures of life.

The emotional distress damages were much more significant. Upon being advised that her child could be born with brain damage, heart deformities and missing body parts, and advised to terminate her then confirmed intrauterine pregnancy, Ms. Wilson was distressed, initially repeatedly declined to undergo the termination procedure and she could not eat or sleep, and suffered from anxiety attacks.

Afterwards, plaintiff felt extremely guilty about her decision and sought counseling from the pastor at her church, who she prayed with and sought guidance from over six months, about 2-3 times a week. Her grief affected her social, family and intimate relationships. She testified that her guilt remains with her to this day, and that she relives her grief often. She told the jury she felt like she was left with a scar that continually reopens and that she needs guidance to help her get through it.

Inside Information:

  • The defense took a “no pay” position refusing to make any settlement offer before the verdict. Plaintiff’s attorney, John Bonina, persisted on a difficult, hard-fought case and the ultimate result was outstanding.
  • As a devout Christian, plaintiff did not believe in or want to undergo an abortion.
  • There was not much medical evidence to support plaintiff’s emotional distress claim. She never received any psychological treatment or counseling and the church pastor with whom she consulted had moved to Florida and refused to testify.

On June 23, 2014, John Czechowski was part of a four-man crew performing gutter and siding renovations at a residence in West Seneca. When he climbed onto the homeowner’s ladder to hang gutters, Mr. Czechowski, then 47 years old, sustained a serious foot injury when the fourth rung on the ladder broke and he fell, feet first, onto the concrete pavement below.

In his ensuing lawsuit against the homeowner, Mr. Czechowski was granted summary judgment in his favor; a judge ruled that the defendant was fully at fault. The case then proceeded to a trial on damages only.

The Erie County jury awarded plaintiff pain and suffering damages in the sum of $76,000 ($60,000 past – seven years, $16,000 future – 16 years). Plaintiff appealed, arguing that the amount awarded was inadequate.

In Czechowski v. Wisniewski (4th Dept. 2024), the appellate court agreed with plaintiff and ordered that the damages award should be increased to $275,000 ($150,000 – past, $125,000 – future).

Here are the injury details:

  • comminuted displaced intraarticular calcaneus fracture requiring open reduction internal fixation surgery with the insertion of a titanium plate and screws
  • continuing pain and antalgic gait at time of trial
  • unable to return to recreational activities such as motorcycle riding, skiing, golf and bowling
  • permanent post-traumatic arthritis in ankle

Inside Information:

  • In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $1,450,000; defense counsel suggested $75,000.
  • Defendant did not exercise his right to have plaintiff examined by his own medical expert.
  • During trial, the defense offered a high-low agreement with $300,000 as the high and $50,000 as the low. Plaintiff rejected the offer.

On October 3, 2016, Jazmon Morrison was injured while working as a hospice aide at a nursing care facility in Williamsville when she slipped and fell striking her head on the hard floor of her patient’s room.

A Patient Room at Site of Accident

In her ensuing lawsuit against the facility owner and operator, Ms. Morrison was granted summary judgment as to liability because cleaning solution that seeped under the wall from an adjoining room caused the accident. The matter then proceeded to a damages only trial.

The Erie County jury awarded plaintiff damages in the total sum of $3,972,701 as follows:

  • Pain and Suffering – $400,000 ($200,000 past – six years, $200,000 future – 30 years),
  • Loss of Earnings – $1,072,701 ($177,290 past – six years, $895,411 future – 25 years); and,
  • Future Medical Expenses – $2,500,000 (30 years).

Defendants appealed arguing that the damages awards were excessive; however, in Morrison v. South Union RD HC, LLC (4th Dept. 2024), the appellate court rejected the defendants’ arguments.

Plaintiff, 25 years old at the time of the accident, lost consciousness when her head hit the floor. She was rushed to the hospital and admitted for three days where she was assessed with a head injury, blurry vision and decreased ranges of motion and pain in her neck and back. Upon discharge to home, she followed up with with a neurologist who diagnosed her with post-concussive syndrome, cervicalgia, headaches, involuntary jerking, and problems with memory, concentration and vision (and he testified at trial that her brain and spine injuries are permanent).

Plaintiff required a walker to ambulate and for two and a half years. At trial, she required a cane to walk and testified that she still had difficulty caring for herself and her children, her memory continued to be poor, she had not returned to work and her treating physician opined she never would be able to do so.

The defense argued that plaintiff’s injury was minor especially in view of the facts that she sustained no fractures, an MRI revealed no bleeding or bruising of the brain or other abnormalities and their expert neurologist testified that plaintiff’s head injury was minor and her post-concussive syndrome and spinal strains had resolved.

Inside Information:

  • In closing arguments, the defendants’ attorney argued that plaintiff’s injuries all resolved within 10 months and that an award of $100,000 for her pain and suffering would be appropriate. Plaintiff’s attorney asked the jury to award $5,750,000 for her pain and suffering.
  • There were several expensive medications included in plaintiff’s life care plan – the most expensive was Nurtec (for migraine headaches) which it was estimated would cost about $4,500,000 over plaintiff’s expected lifetime. The defense did not submit their own lifecare plan.

On May 4, 2016, David Borohov injured his ankle when he fell going down the exterior staircase of his apartment building in Fresh Meadows.

Mr. Borohov, then a 24 year old hairdresser, sued Queens Fresh Meadows, LLC, the owner of the building, claiming that his injuries occurred because the the steps were defective and there were no handrails. The defendant failed to defend the lawsuit and plaintiff obtained a default judgment.

At the ensuing inquest, plaintiff presented evidence of his injuries and treatment upon which the judge then issued a decision awarding pain and suffering damages in the sum of $280,000 ($150,000 past – three years, $130,000 future).

Defendant claimed that it first became aware of the lawsuit when plaintiff began enforcement of judgment proceedings; however, its application to vacate its default was denied by the trial judge.

In Borohov v. Queens Fresh Meadows, LLC (2d Dept. 2024), the appellate court affirmed the order denying defendant’s application to vacate its default.

Here are the injury details:

  • immediate transport to local hospital where he was diagnosed with a torn ligament in his left ankle
  • soft cast, boot and crutches for two months
  • physical therapy for five months, two cortisone injections
  • permanently impaired with limitations in the subtalar joint and neuropathy for which arthroscopic surgery may be required
  • continuing pain, numbness and inability to resume tennis, hiking or running

Inside Information:

  • Plaintiff testified at the inquest. His medical proof was all on written submissions – physicians’ narrative reports, physical therapy records, an MRI finding and hospital records.
  • On appeal, the defendant argued that the pain and suffering award was excessive in view of the fact that there were no fractures or surgery.

On December 19, 2012, Nicole Angeles was injured when the car she was driving was struck by a county bus in the Smith Haven Mall parking lot in Smithtown.

In her lawsuit against the bus driver and the county, the Suffolk County jury determined that the crash was solely the fault of the bus driver and the jury then awarded Ms. Angeles pain and suffering damages in the sum of $745,000 ($634,000 past – six years, $111,000 future – 10 years).

The county appealed arguing that the verdict was excessive. In Angeles v. County of Suffolk (2d Dept. 2023), the court ruled that the pain and suffering should be reduced to $411,000 ($300,000 past, $111,000 future).

Plaintiff, then 20 years old, sustained cervical spine bulging discs with radiculopathy that she testified left her in constant pain and with diminished range of motion.

She underwent physical therapy as well as trigger point and facet block injections. The injections alleviated but did not eliminate plaintiff’s pain nor did they restore her range of motion.

Unfortunately, she suffered from a blood disorder, Von Willebrand’s disease, which decreased the methods of treatment available to her. Her physician testified that because of the disease, spinal surgery could be fatal and injections were no longer possible. He also testified that plaintiff’s condition was permanent and would require pain medication indefinitely.

On September 5, 2018, Nidia Vasquez was injured while working as a laborer at a demolition and construction site in Buffalo when she was struck on her head and a shoulder by an unsecured ladder that had been standing against a wall.

Ms. Vasquez, then 57 years old, sued the site owner, the construction manager and one of the subcontractors on the site. Her motion for summary judgment under the Labor Law was granted and the matter proceeded to a trial on damages.

The Erie County jury awarded plaintiff pain and suffering damages in the sum of $1,500,000 ($250,000 past – three and a half years, $1,250,000 future – 15 years).

Defendants appealed arguing that the future pain and suffering award was excessive; however, in Vasquez v. Gilbane Building Co. (4th Dept. 2024), the court affirmed the pain and suffering award.

Here are the injury details:

  • herniated discs at C4-7 with radiculopathy requiring cervical discectomy and fusion surgery on 1/17/19
  • herniated disc at C3-4 that will within two years require discectomy and fusion surgery
  • labral tears in shoulder that have left plaintiff with significant pain, disability and range of motion losses; surgery has been prescribed

Plaintiff’s injuries left her in near constant pain, disabled as to several activities of daily living (cannot even drive a car), and unable to return to work. The jury awarded her damages for loss of earnings in the sum of $520,000 ($164,000 past, $356,000 future – five years). She was also awarded $302,000 for medical expenses ($41,000 past, $261,000 future – five years).

Inside Information:

  • Plaintiff had not yet undergone shoulder surgery only because her body mass index was too high (she was five feet five inches tall and about 200 pounds) and she has to lose weight first.
  • The trial judge advised the jury that plaintiff’s life expectancy was 22 years but the jury awarded future pain and suffering damages only for 15 years.

On November 27, 2018, at 3 a.m., then 41 year old William Lee, fell in his bathroom at home in Elmsford. His wife Anna heard the thud, ran to the bathroom and found her husband convulsing on the floor. She called 911. When the ambulance arrived, EMS suspected a stroke and Mr. Lee was rushed to Westchester Medical Center (a certified national stroke center).

Mr. Lee was diagnosed with a severe stroke and a CT scan angiography was performed that showed a basilar artery occlusion that was stopping blood from getting to the brain. Tragically, though, the doctors at the hospital that morning were inexperienced (there was no board certified radiologist) and they misinterpreted the scan resulting in a three and a half hour delayed diagnosis of the occlusion.

As a result of the delay, Mr. Lee became and remains unable to care for himself, has profound cognitive deficits, does almost nothing without prompts to guide him, has dementia-like symptoms with no short-term memory, and spends his days mostly sleeping, eating and watching television all while fully aware of the fact that he has a brain injury, cannot do the things he used to do, is frustrated and sometimes destructive and has young children who are afraid of him.

Mr. and Mrs. Lee sued the hospital and the doctors claiming that although he came into the hospital with a stroke, their negligence was a substantial factor in depriving him of a substantial chance for a better outcome and resulted in his sustaining permanent and massive brain injuries and needing lifetime residential facility care.

In Lee v. Westchester County Healthcare Corp. (Supreme Court Westchester County, Index #50914/2020), the jury upheld the plaintiffs’ claims and returned a verdict on November 30, 2023, awarding pain and suffering damages in the sum of $51,000,000 ($9,375,000 past – five years, $41,625,000 future – 33.3 years).

The jury also awarded damages (a) to Mrs. Lee for past medical expenses and household services she incurred for her husband in the sum of $550,000, (b) to Mrs. Lee for the loss of her husband’s services and society in the sum of $51,000,000 ($9,375,000 past – five years, $41,625,000 future – 33.3 years). and (c) to Mr. Lee for his anticipated future medical costs in the sum of about $18,000,000 (mainly for residential facility care at about $500,000 a year for 33.3 years).

While the jury was deliberating, plaintiffs and the hospital entered into so-called high-low agreement that provided for the hospital to pay (a) $10,000,000 in the event of a defense verdict or a damages award of $10,000,000 or less, or (b) the amount awarded by the jury if between $10,000,000 and $30,000,000 or (c) $30,000,0000 or if the jury award were more than $30,000,000.

Inside Information:

  • Plaintiffs’ lead counsel, Ben Rubinowitz, widely regarded as one of best trial lawyers in New York, brilliantly focused his closing argument on Mr. Lee’s awareness of his massive injuries and his inability to resume being a husband to his wife and a father to his young children. He asked the jurors if they could think of anything worse in the world than knowing that one has children and a wife but that he cannot care for them.
  • Prior to the verdict, one of the defendant doctors, a neurologist, agreed to settle for $1,900,000 to resolve the claim against her that once the blockage was properly diagnosed she prescribed the wrong blood thinner medication.
  • The damages award in this case is the largest medical malpractice verdict in the history of Westchester County.

On September 27, 2019, Miguel Ferrer and his wife, residents of Idaho, were on vacation in Manhattan and decided to take a night tour on top of a sightseeing double decker tour bus.

Mr. Ferrer was seated on the right side of the bus with his right arm on the railing that went around the open and uncovered upper deck when it passed close to and struck a portable traffic message board placed by the city on the east side of First Avenue between 38th and 39th Streets.

Mr. Ferrer’s arm was badly fractured and lacerated and he sued the tour bus company, its driver and the City of New York.

During pre-trial discovery in 2021, plaintiff’s attorneys obtained a criminal background check on the bus driver that disclosed that before he was hired by the tour bus company, he had various criminal convictions including possession of a weapon and reckless endangerment as well as open charges with respect to driving a vehicle.

Plaintiff sought leave to amend his complaint to add a claim for punitive damages arguing that the tour operator failed to conduct a criminal history background check of the driver who they knew was not qualified to operate a tour bus when they hired him.

Plaintiff’s motion was granted; however, on appeal in Ferrer v. Go N.Y. Tours Inc. (1st Dept. 2023). the court held that the motion should have been denied. The appellate court stated that the new allegations (a) adequately set forth conduct that may constitute a willful and wanton disregard for the interests of others (supporting a claim of gross negligence) but (b) the proposed allegations do not support a punitive damages award.

The case is on the trial calendar and there is a pending motion for summary judgment by the city arguing that the placement of the message board was a governmental function involving the exercise of discretion and as such plaintiff had to (but did not) allege and prove he was owed a special duty.

Inside Information:

  • Defendants argued that the punitive damages motion should have been denied because both New York Corrections Law Article 23-A and New York City’s Fair Chance Act generally forbid an employer (a) from denying employment because of a prior conviction (unless there is a direct relationship between the offense and the employment) or (b) requesting a criminal background check from a job candidate (unless and until the employer extends a conditional offer of employment). The appellate court did not address the application of these laws.

On March 12, 2012, Saikou Sinera, then 29 years old, was injured in a construction related accident when he fell from the fourth step of a ladder while painting inside an apartment at 301 East 47th Street in Manhattan.

Mr. Sinera sued the property owner and building manager under the Labor Law and was granted summary judgment. In a damages only trial, the Bronx County jury awarded pain and suffering damages in the sum of $3,000,000 ($1,000,000 past – 10 years, $2,000,000 future – 37 years).

The defendants successfully argued that the damages award was excessive because it improperly included plaintiff’s claim that he suffered from complex regional pain syndrome (“CRPS” -also known as reflex sympathy dystrophy or RSD).

The trial judge reduced the pain and suffering award to $700,000 ($250,000 past, $450,000 future) and the reduction to $700,000 was affirmed on appeal in Sinera v. Embassy House Eat LLC (1st Dept. 2024).

Here are the injury details:

  • Wrist – distal and ulnar comminuted fracture to non-dominant wrist, treated with a cast and physical therapy for six months and which resulted in a malunion
  • Shoulder – acromioclavicular joint (“AC”) separation, with rotator cuff syndrome and biceps tendinitis treated with physical therapy and a cortisone injection

There was extensive medical testimony at trial especially related to plaintiff’s CRPS claim. Four of his five doctors along with all four of the defense experts found no evidence of CRPS.

The jury also awarded plaintiff future medical expenses in the sum of $2,500,000 (37 years); however, that award was reduced to $10,000 because it was based upon the jury’s implicit finding that plaintiff had CRPS which finding the courts rejected.

Inside Information:

  • Four days before the date of the appellate court decision, counsel for both sides delivered a letter to the court requesting that any decision on the appeal be delayed 30 days to allow for settlement discussions.
  • Plaintiff had no medical treatment for his injuries for the six years preceding trial. He claimed he could not afford treatment.
  • The jury awarded plaintiff future loss of earnings in the sum of $1,000,000 (21 years); however, plaintiff conceded that the award should be reduced to $302,353, the sum calculated by plaintiff’s expert.