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Farias v. Simon

Supreme Court of New York, New York County

June 28, 2012

Jesus FARIAS, Plaintiff,
John Douglas SIMON, Jr., Ellen S. Parry, and John Doe Contractor, Defendants. John Douglas Simon, Jr. and Ellen S. Parry, Third-Party Plaintiffs, Guttilla Contracting Ltd. and Michael Guttilla, Third-Party Defendants. No. 113267/08.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Jason Shapiro, Esq., Shapiro Law Offices, PLLC, Bronx, for plaintiff.

Linda A. Stark, Esq., Michael J. Miliano, Esq., New York, for Guttilla.

Raymond M. D'Erasmo, Esq., Savona, D'Erasmo & Hyer LLC, New York, for Simon & Parry.


By notice of motion dated December 20, 2011, third-party defendant Guttilla Contracting Ltd. (Guttilla) moves pursuant to CPLR 3212 for order dismissing the third-party complaint. Defendants/third-party plaintiffs John Douglas Simon, Jr. (Simon) and Ellen S. Parry (Parry) oppose.

By notice of motion dated January 4, 2012, Simon and Parry move pursuant to CPLR 3212 for an order dismissing plaintiff's claims against them. Plaintiff opposes.

By notice of motion of the same date, plaintiff moves pursuant to CPLR 3212 for summary judgment on Simon and Parry's liability. Simon and Parry oppose.


On October 19, 2005, plaintiff, then employed by Guttilla, was performing construction work on a single-family home owned by Simon and Parry when the scaffolding on which he was standing collapsed, and he fell to the ground, sustaining physical injuries. (Affirmation of Linda A. Stark, Esq., dated Dec. 20, 2011 [Stark Aff.], Exhs. C, D, E). Plaintiff was taken to the hospital and diagnosed with a right-sided epidural hematoma, a left temporal hemorrhagic contusion, and a fractured frontal bone. ( Id., Exhs .F, G, H). On October 24, 2005, Dr. A.A. Rawanduzy performed sugery on him to remove the hematoma. ( Id. ). Thereafter, he spent five days in a rehabilitation facility. ( Id. ).

Dated December 5, 2005, Dr. Rawanduzy's follow-up report reflects that his " examination [of plaintiff] showed a well-healed craniotomy scar[, that] he has hair grown back and it covers most of the scar, [and that] [d]epending on his clinical progress, he might be able to return to work sometime in late January or February 2006." ( Id., Exh. F).

In a second follow-up report dated January 16, 2006, Dr. Rawanduzy states that his " [e]xamination [of plaintiff] showed a well-healed surgical scar[, that] there was no evidence of any neurological deficit[, and that plaintiff] may go back to work in February 2006." ( Id. ).

On September 17, 2008, plaintiff commenced the instant action with the filing of a summons and verified complaint, asserting claims against defendants for negligence and violations of Labor Law ยงยง 200, 240, and 241, and Rule 23 of the Industrial Code. (Affirmation of Jason Shapiro, Esq., dated Jan. 4, 2012 [Shapiro Aff .], Exh. B).

At an examination before trial (EBT) held on July 21, 2009, plaintiff testified, inter alia, that he has not worked since the accident and that one of his doctors, whose name and speciality he cannot remember, told him he could no longer work a result of his injuries. ( Id., Exh. D). He claimed that his " mind doesn't work as fast as it used to," that he daily experiences vision and memory problems, and that he has scarring on the right side of his head, eyebrow, and bridge of his nose. ( Id. ).

At an EBT beginning on July 27, 2009, and continuing on January 25, 2010 and January 26, 2011, Parry testified that in 2001, when Simon inherited the property from his father, they discussed selling it, renting it, or using it as a summer home, that they decided to renovate it with the intention of using it as a second home, that they hired Guttilla as " they needed someone who would [ ] oversee and control the work," and that the renovations began in July 2005. (Affirmation of Jason Shapiro, Esq., in Opposition, dated Feb. 21, 2012 [Shapiro Opp. Aff.], Exh. B). According to her, they decided to rent out the property " at the very end of the renovations," or sometime during the Spring of 2007, as the renovations had cost more than they anticipated. ( Id. ). She admitted having spoken to a realtor about renting out the property and that she saved her card in case she " ever changed her mind," and although she does not recall whether the conversation occurred before or after the renovations had begun, she stated that she did not speak to the realtor again until after she had contacted other realtors in 2006. ( Id. ). She also admitted that they began renting the property out during the Fall of 2007 and that she and her family have never lived there. ( Id. ).

On or about October 20, 2009, Simon and Parry commenced a third-party action, asserting claims for contribution and indemnification against Guttilla. (Stark Aff., Exh. D).

In a report dated December 9, 2009, Dr. Jerome Block, Simon and Parry's expert, states that plaintiff complains of daily headaches and memory problems, and that during his examination of plaintiff he noticed " a somewhat broad scar in the right temporal region with evidence of [a] craniotomy defect beneath his scar." ( Id., Exh. G). He opined that although " there is no doubt that [plaintiff] had intracranial bleeding [and] a hemorrhagic contusion or contusions," " there is a paucity of objective findings of ...

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