On August 17, 2007, Plaintiff, an Albanian union electrician from Local 3, was employed by Urban Power and Lighting. His company was performing an electrical upgrade to various classrooms at Prospect Heights High School. On the date of his accident, Plaintiff entered a classroom on the third floor of the school. His job duties were to change the electrical components of an HVAC system, which were contained within the drop ceiling in the classroom. He had a 6 foot, A-Frame ladder with him, which was too short to perform this work. He noticed an eight foot ladder, which belonged to another trade. This ladder was inside the room that Plaintiff was in and was fully opened. Plaintiff decided to use this ladder to perform his work. He climbed the ladder up to the seventh rung and began working. Less than a minute later, the ladder started wobbling and it fell and the plaintiff fell as well. Plaintiff moved for summary judgment as to liability, pursuant to Labor Law Section 240(1), alleging that the Plaintiff was not provided with the proper protection within the meaning of the statute. Defendants cross moved for summary judgment claiming that the Plaintiff's action of using a ladder, belonging to a different trade was the sole proximate cause of his accident. They further alleged that Plaintiff was recalcitrant because he used a ladder belonging to a different trade, rather than going to his employer's storage area, where Plaintiff admitted, several ladders were available. Plaintiff presented an affidavit from his co-worker and partner which stated that the trades on this job site used each others ladders interchangeably. Summary Judgement was granted by Justice Mark Partnow on December 29, 2009.
Plaintiff fell approximately ten feet onto his back. He was taken via ambulance to Kings County Hospital, where he was admitted for three days. X-rays revealed a fractured right wrist, which required casting, closed fracture of the S1-S2 and transverse process fractures at L1, L2, and L3. He was released three days later. He underwent an MRI of his lumbar spine which revealed a herniated disc at L5-S1. He underwent physical therapy and epidural injections with no relief of his symptoms. He ultimately underwent a L5-S1 fusion. Due to a mal-union, caused by Plaintiff's cigarette smoking, Plaintiff was required to undergo another fusion at the L5-S1 level. He ultimately developed Complex Regional Pain Syndrome/RSD in his right foot. His pain management physician Dr. Bakshi would have testified that the CRPS was a direct result of the two lumbar surgeries that Plaintiff had underwent. Plaintiff would have claimed that he was totally and permanently disabled from his employment and any alternative employment.
Defendants' would have argued that Plaintiff's lumbar condition was pre-existing and unrelated to the subject accident. They would have introduced evidence that the plaintiff had been involved in a motor vehicle accident one year prior, which resulted in him going to a hospital and treating for cervical and lumbar pain up until four days prior to the subject accident and attending 92 Physical Therapy sessions as well as 87 chiropractic visits. They would have argued that the MRI taken immediately after his motor vehicle and the one taken after his ladder fall were identical in findings and that his doctors had found him disabled from working as a result of his motor vehicle accident. They would have argued that the competent producing cause of his lumbar condition and the resultant fusions were Grade 1 spondylolisthesis and spondylosis, pre-existing conditions not related to the subject accident. They would have also argued that Plaintiff did not tell the defense experts about his prior lumbar condition and prior motor vehicle accident and in fact did not even tell his own treating physicians. They would have further argued that, given the condition of Plaintiff's cervical and lumbar areas, he would not have been able to remain in his occupation for his entire work life expectancy. Their Vocational Rehabilitation expert would have testified that Plaintiff was a candidate for a sedentary type job, where he could potentially earn $45,000 per year.