On June 14, 2013, Albert Masmalaj was employed as a carpenter at a a recycling plant construction site in Brooklyn when he fell from a scaffold six feet to the cement floor below.
In his ensuing Kings County lawsuit against the premises owner and general contractor, Mr. Masmalaj, then 34 years old, was granted summary judgment as to liability under Labor Law Sections 240(1) and 241(6) and the case then proceeded to a trial on damages only.
The jury awarded plaintiff pain and suffering damages in the sum of $4,343,108 ($2,000,00 past – six years, $2,343,108 future – 37 years).
In Masmalaj v. New York City Economic Development Corp. (2d Dept. 2021), the appellate court agreed with the defense that the award was excessive and ordered a reduction of the pain and suffering award to $3,343,108 ($1,000,000 past, $2,343,108 future).
Here are the injury details:
- Left Shoulder – Hill Sachs fracture requiring surgery to repair labrum and remove scar tissue and leaving plaintiff with permanent instability and very limited use of left arm, unable to perform construction work
- Cervical Spine – herniated disc at C4-5 requiring epidural injections and spinal fusion surgery resulting in non-union with adjacent segment syndrome, continuing pain and limited range of motion and need for additional surgery to solidify the existing hardware
- Lumbar Spine – shallow herniation at L4-5
- Psychological – depression with anxiety and agitation (supported by uncontroverted testimony from treating psychiatrist)
Defendants argued that the pain and suffering award was excessive noting that plaintiff traveled to Italy where he was married 13 months after the incident, he is now able to drive, run chores and perform substantially all activities of daily living.
There was extensive medical testimony both from plaintiff’s treating physicians and defendants’ experts.
The jury also awarded plaintiff substantial economic damages including past and future loss of earnings (reduced on appeal to $418,000 from $892,000), future Social Security benefits (reduced on appeal to $40,000 from $298,000) and future medical treatment and medications in the sum of $1,153,000 (all either affirmed on appeal or not challenged, except for pain management expenses which were reduced to $55,000 from $350,000).
- The defendants requested that the past pain and suffering award be reduced to $1,000,000; they did not challenge the future pain and suffering award.