On August 1, 2012, Besnik Malecaj was working for an excavation company renovating a townhouse at 45 West 70th Street in Manhattan to convert it from a multi-unit cooperative to a single family residence with an indoor swimming pool. Mr. Malecaj, then 40 years old, injured his neck, back, head and a shoulder when he fell about 11 feet from a wooden plank that had been laid across a corner of the excavated area.

45 West 70th Street

Mr. Malecaj sued the premises owner and the construction manager claiming they violated the Labor Law by failing to provide a safe workplace. The two defendants in turn sued plaintiff’s employer with similar allegations.

The trial judge directed a verdict as to the violations of Labor Law Sections 240 and 241 and the Bronx County jury found that the owner directed and controlled plaintiff’s work, the construction manager acted as a general contractor and all of the defendants violated Labor Law Section 200.

The jury found that plaintiff sustained a grave injury and awarded plaintiff damages in the total sum of $4,741,015 as follows:

• pain and suffering – $1,630,000 ($1,000,000 past – 10 years, $630,000 future – 20 years).
• lost earnings – $1,550,000 ($550,000 past, $1,000,000 future – 15 years),
• medical costs – $1,250,000 ($100,000 past, $1,150,000 future – 20 years), and
• future loss of retirement benefits – $311,015 (10 years).

While the jury was deliberating, plaintiff and the premises owner defendant reached a high-low agreement. It provided that (a) if the jury were to award a verdict of anything up to $1,000,000 against the owner then the defendant would pay $1,000,000, (b) if the jury were to award a verdict between $1,000,000 and $1,500,000 against the owner that is the amount the defendant would have to pay and (c) if the jury were to award a verdict of more than $1,500,000 against the owner then the defendant would pay only $1,500,000.

Following the verdict, plaintiff’s counsel demanded that owner pay $1,500,000 pursuant to the high-low agreement as a jointly and severally liable defendant under the Labor Law; however, the defendant refused claiming that it only owed $1,000,000 because the jury apportioned only 10{c9b670b3c77d807bdd7060c9fc0a99121cc6b184676c9335f3481a95c383dd4c} of the liability against it while apportioning 50{c9b670b3c77d807bdd7060c9fc0a99121cc6b184676c9335f3481a95c383dd4c} to the general contactor and 40{c9b670b3c77d807bdd7060c9fc0a99121cc6b184676c9335f3481a95c383dd4c} to plaintiff’s employer.

The trial judge agreed with the defendant’s position as did the appellate court in Malecaj v. West 70th Owners Corp. (1st Dept. 2024). The trial judge also ruled that there should be a retrial on the issue of apportionment of damages because only 10{c9b670b3c77d807bdd7060c9fc0a99121cc6b184676c9335f3481a95c383dd4c} of the fault was assigned to the actual party (the owner) who directed and controlled the work plaintiff was performing when he was injured.

Inside Information:

• This has been a long and hard fought lawsuit with outstanding and unrelenting efforts by plaintiff’s lawyers at Morgan, Levine & Dolan.
• Plaintiff’s injuries include a herniated cervical disc at C5-6 that required spinal fusion surgery. traumatic brain injuries leaving him with significant short-term memory deficits, a torn labrum in a shoulder requiring arthroscopic surgery and herniated discs in his back leaving him with permanent pain.
• Just before trial, the owner sold the building and plaintiff has commenced a new lawsuit seeking to set aside that transfer claiming the sale was a fraudulent conveyance to a shell corporation.
• The retrial on the issue of apportionment is set for October 8, 2024.