By Richard J. Freire and Thomas M. Bona.
Court: Supreme Court of New York, Richmond County
Judge: Hon. Lizette Colon
Case Type: Labor Law 241(6); hand crush injury while working in a trench during sewer installation.
Caption: Joaquim Torres and Maria Torres v. The City of New York and The City of New York Department of Design and Construction
Index No.: 11253/2003
Decision Date: 11/29/21
Decision: Jury Deliberated Defense Verdict
One of the strengths of our PMT trial team is that we never give up. Judges and juries make wrong decisions, and the remedy is an appeal. When the case is reversed and sent back for a new trial, our trial attorneys dig in and go back to finding the best strategy and evidence to secure a defense verdict. Richard J. Freire recently did just that in Torres v. City of New York.
The Torres case had been the subject of two appeals and a prior trial being reversed and remanded for a new trial by the Appellate Division. Plaintiff, a then 29-year-old member of the excavation crew installing new sewer pipe in Staten Island, sustained a significant right-hand injury on September 22, 2000, when his hand was crushed between an excavator bucket and a trench shield wall. As a result of the incident, the plaintiff underwent eight surgeries and never returned to work. In the second trial, the Appellate Division precluded a central argument of the defense in the first trial, holding the plaintiff could rely on the protection of NYS Industrial Code 12 NYCRR 23-4.3 (prohibiting any worker from being permitted to work where he could be struck by excavation equipment) despite the plaintiff’s authority to work within the radius of the excavator bucket under NYS Industrial Code section 12 NYCRR 23-9.5.
The unavailability of witnesses further hampered the defense due to the passage of time and the necessity for virtual testimony of the only live defense witness. The challenges of jury trials under current COVID restrictions were also on full display. The trial was moved between two courtrooms to accommodate virtual testimony, jurors were spread out in the courtroom to maintain social distancing, and the attorneys (along with all others in the courtroom) wore masks which diminished the ability to communicate with the jury effectively. Richard J. Freire of PMT was able to overcome these obstacles and obtain a defense verdict on the issue of proximate cause. Proximate cause is generally a tricky issue on which to prevail at trial, but he was successful and finally ended the case.
PMT never gives up and let us show you how our persistence can deliver wins for you.
Should you have any questions, please call our office at (914) 703-6300 or contact:
Marc H. Pillinger, Executive Partner
Jeffrey T. Miller, Executive Partner