Fabiani Cohen & Hall Obtains Discontinuance of Plaintiff’s Complaint With Prejudice and With No Money Paid on Eve of Trial in Construction Accident Case After Presenting Plaintiff’s Counsel With Substantial “Conflicting” Proof About the Circumstances of the Accident

This matter arises out of CCA Civil/Halmar International, LLC’s contract with the State of New York Department of Transportation to reconstruct the Alexander Hamilton Bridge. The plaintiff, a Local 40 journeyman ironworker employed by CCA/Halmar, claimed he was injured on May 30, 2013, at the mid-span section of the bridge, when he stepped on a piece of chopped concrete debris on the Q-decking causing him to twist his right knee and sustain career-ending injuries including multiple surgeries ending in a total knee replacement. Plaintiff brought suit against the State of New York in the Court of Claims alleging violations of Labor Law §§200 and 241(6) as well as common law negligence. The case was scheduled for trial on April 30, 2019, before Judge David Sampson. Plaintiff’s settlement demand was $6 million.

Several days prior to trial, FCH presented plaintiff’s counsel with substantial ‘”conflicting” evidence of the circumstances of the alleged accident including that the plaintiff injured his knee while kneeling on a wood float for a week (C-2 Incident Report prepared after drafter spoke with plaintiff and C-3 Incident Report read and signed by plaintiff under oath) or while crawling from the shield to the wood float (doctor’s report) or while carrying a heavy hatch door (another doctor’s report) or because he tripped and fell over debris located on the Q deck covered with rubble, concrete chunks, debris and uneven Q deck pieces (plaintiff’s own sworn affidavit used in support of a motion for leave to file a late notice of intention to file a claim) or because he stepped on a small piece of concrete on an otherwise clean Q deck and twisted his knee but did not slip or trip and fall (plaintiff’s own sworn deposition testimony).

After presenting all of the “conflicting” evidence to plaintiff’s counsel, they agreed to discontinue the action in its entirety with prejudice. On April 29, 2019, a fully executed stipulation of discontinuance with prejudice was filed with the Court of Claims thereby bringing the action to conclusion without any money having been paid.

James Barry v. The State of New York, Index No. 124139 (N.Y. Ct. Claims)

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This post was written by Sander Rothchild