Our partners, NYC auto accident attorneys Ben Rubinowitz, and Peter Saghir just settled a case for a 44 year old father who suffered serious injury when he was struck by a car at an improperly marked New York City roadway construction project.
Following an appeal in Gregware v City of New York, the Appellate Division First Department ordered that a retrial on apportionment between the defendants be held. During the retrial held last week in New York Supreme Court the parties were able to settle the case for $8,500,000.00. Our partner Ben Rubinowitz, assisted by Peter Saghir, obtained a verdict of $7,125,000 against the City of New York and its construction company, Burtis Construction Co., Inc. following a 17 day trial. The reason that the case settled for an amount far greater than the verdict was due to the fact that interest on the judgment was running The City contributed $2,000,000.00 and Burtis Construction paid $6,500,000.00 toward the settlement.
The plaintiff, a 41-year-old man and father of three young children, was returning home from work in the early morning hours of May 20, 2006. Six weeks earlier his wife had given birth to a baby girl via C section. His other two children included a four-year-old boy and a two-year-old boy. He worked as a film editor and was self employed. On the night of the accident the plaintiff left his midtown Manhattan workplace at around 3 o’clock in the morning. Unbeknownst to the plaintiff, the City of New York and its construction company (Burtis Construction Co., Inc.) were performing road repair work on the West Side Highway. They were involved in a short term construction project to repair expansion joints along the West Side Highway in the vicinity of 72nd to 79th Streets. As part of its contract with the City, the construction company was required to properly notify drivers that the roadway was being shut down from three lanes to one lane of travel. This closure of the roadway was supposed to be performed in conformance with the dictates of the Manual for Uniform Traffic Control Devices and with the Maintenance and Protection of Traffic Plan spelled out by the City of New York in the contract. Specifically, appropriate signs should have been placed along the highway south of the roadwork along with tapers and transitions of barrels fitted with lights to notify and warn drivers that the left two lanes were being shut down. When the plaintiff left his office to drive home he drove northbound on the Westside Highway. As he reached the area of 79th St. he was involved in a fender bender with another car. He got out to check to make sure that everyone was alright. He then returned to his car to put on his hazard lights on and to obtain his insurance information to exchange with the other driver. Shortly after getting his insurance information and while he was out of his car he was struck from behind by another driver, Abelardo Da-Silva.
Needless to say, the plaintiff was never provided with appropriate notice that the City of New York and its construction company were doing work in this area. The plaintiff testified that he never saw signs or barrels notifying him of the imminent lane closures. Other drivers also testified that they were not given sufficient notice and warning that construction was taking place. The construction foreman testified that he had properly laid out all signs, barrels and cones to notify drivers; however, the jurors chose chose not to believe his testimony (which was taken at deposition). The City inspector testified that he had checked the traffic pattern; however, he conceded on cross examination that he was unfamiliar with the Manual for Uniform Traffic Control Devices.
The plaintiff suffered knee injuries including torn anterior cruciate ligaments bilaterally posterior cruciate ligaments bilaterally and medial collateral ligament tears. He underwent five surgical procedures. The plaintiffs entire claim was based on pain and suffering and loss of enjoyment of life. The plaintiff’s wife brought a derivative claim for past and future loss of services. No claims were made for past or future medical expenses or past or future lost earnings.
After four days of deliberation, the jury found the City of New York 65% responsible and its construction company 35% responsible for the accident and injuries . The jury also found that the plaintiff was free from comparative fault and that the driver that rear ended the plaintiff was also free from fault. The jury awarded the plaintiff $7,125,000. Prior to trial the plaintiff demanded $6,000,000. The defendants final offer was $150,000.
The breakdown of the verdict was:
- Plaintiff James Gregware – $2,200,000 past pain and suffering $3,800,00 future pain and suffering (29.2 years)
- Plaintiff – Eileen Gregware $700,000 past loss of services and society $425,000 future loss of services and society (29.2 years)
The complete decision can be downloaded here.