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U.S.D.C. - Eastern District of New York

This action involved a 23-year-old plaintiff laborer involved in the construction of the owner’s, second home, which the plaintiff maintained was built on specifications for investment, was considered commercial in nature, and which did not have the benefit of the single family dwelling exception to the Labor Law. The plaintiff maintained that the defendants violated the Industrial Code (12 NYCRR 23-________ (c)(2), and that the owner and general contractor should be liable under Sec. ________ (6) for the plaintiff’s use of the saw when the barrier guard was missing. The plaintiff contended that as a result, he suffered the traumatic amputation of significant portions of the thumb and index finger, as well as significant injury to the web space of the non-dominant hand.

The plaintiff maintained that a series of reconstructive surgeries with the hope of providing him a functional hand with three fingers and a thumb were ultimately largely successful and provided some use of the hand. The plaintiff will not be able to return to physical work. There was no evidence that the saw was designed or manufactured without the appropriate guard and the plaintiff did not pursue a products liability action.

The plaintiff contended that he was directed to make the cut for use by his foreman who needed a board as he was working on a roof. The defendant contended that he was familiar with the saw, and was clearly comparatively negligent. The plaintiff countered that he was as a careful as he reasonably could be. The plaintiff maintained that his supervisor was rushing him because of concerns of rain and the supervisor’s need to install the piece quickly. The plaintiff would have also contended that as a practical matter, he could not decline to use tools that were provided by the employer if he valued his economic security.

The incident occurred at the site of the Fire Island project. The plaintiff arrived at the hospital approximately 90 minutes later and the amputations were surgically completed, essentially leaving nubs. The plaintiff then embarked on a series of reconstructive surgeries in which attempts were made to provide him with a functioning hand consisting of three fingers and a thumb. The surgical course was very arduous and included follow-ups to the reattachments, revascularization and reinnervation.

The plaintiff had k wire and pins inserted and later removed. There were also grafts, tendon transfers and contraction releases and the plaintiff underwent a total of some eight operations. The plaintiff contended that ultimately, he was able to regain the use of his hand to the extent that he can engage in everyday activities with moderate difficulties only. The plaintiff would have contended that he will permanently be precluded from working in physical capacity. The plaintiff, who an undocumented alien, had not provided fraudulent documentation regarding his status and the plaintiff would have been permitted to make a claim of approximately $________ per year.The case settled prior to trial for $________.

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