Having determined in February that governmental immunity did not apply to the “ministerial” mistake made by the Suffolk County Court clerk’s office, Judge Marin found that Mr. Scruggs’ actions were foreseeable and that the clerical error led to his contact with the victims.

However, the decision also called for a hearing to determine the applicability of a law exempting the state from joint and several liability for non-economic damages, should it be determined that the state was less than 50 percent responsible for the acts.

The Jan. 27 decision in Steel v. State of New York, 100531, stems from a $40 million wrongful death suit filed by Linda Steel, the mother of victim Michelle Brey, herself a mother of three young children at the time of her murder.

Ms. Brey was killed in October 1999 after she was seen leaving a bar in Suffolk County with Mr. Scruggs. Two days later, her partially clothed body was found on Rocky Point Beach. Police said she had been strangled and beaten to death and that her body showed signs of sexual assault.

The case brought by Ms. Brey’s mother was joined with a second lawsuit filed by another woman, whom Mr. Scruggs raped two weeks before the attack on Ms. Brey. That woman contacted police when she heard media reports of Ms. Brey’s death and helped them find Mr. Scruggs.

The attacks occurred after a clerical error in Suffolk County Court incorrectly indicated that Mr. Scruggs had completed his sentence for an attack on a 21-year-old woman whose car he forced off a Suffolk road before beating her.

Prison officials released him in November 1997 without realizing that he had 13 years left on his term. Police previously had arrested him three times for rape. Mr. Scruggs pleaded guilty in May 1999 to murdering Ms. Brey and was sentenced to 20 years to life.

A decision by Judge Marin last year determined that since the clerical acts were not discretionary, but instead were ministerial acts not requiring decision-making, governmental immunity did not apply. His latest ruling determined that the “ministerial wrong” proximately led to the attacks.

The attorney for Ms. Steel, Jerrold S. Parker, said his research showed no case authority addressing liability issues in situations where a government entity mistakenly releases a prisoner who then commits a subsequent crime. Mr. Parker, who practices with Parker Waichman Alonso LLP in Great Neck, said that most cases he researched dealt with inmates who had escaped and committed crimes.

Assistant Attorney General Denis McElligott, who presented oral arguments for the state, was unavailable for comment on the decision yesterday. Reaching his determination in the 12-page decision, Judge Marin first focused on to whom the state owed a duty. He noted that in a 2000 Court of Appeals case, Lauer v. City of New York, 95 ny2d 95, Chief Judge Judith S. Kaye wrote that the “[f]ixing of the orbit of duty has likely divided this Court more than any other issue.”

In Lauer, the Court declined to find that the city owed a duty to a man seeking emotional distress damages who wrongly was the focus of a homicide investigation into his son’s death based on an erroneous report from the medical examiner. The Court wrote that it was unwilling to impose a duty on the Office of Chief Medical Examiner that would run to the public at large.

Closer to the case before him, Judge Marin found, was Haddock v. City of New York, 75 ny2d 478, a 1990 Court of Appeals decision based on the rape of a 9-year-old girl at a Bronx playground by a New York City Parks Department employee. The Court there found that if the city had followed its own guidelines for screening work relief employees, it would have received immunity from the acts of James Johnson.

Referring to his case and the Haddock decision, Judge Marin wrote that “the similarities between the two cases become evident.”

“[I]n each, the defendant’s negligence had the effect of putting an individual in a place he should not have been because of his history of violence, and which enabled him to come in contact with the victims,” the decision stated. “Scruggs would not have been out at all; Johnson would not have been working at a playground setting where he had greater access to children … ”

Judge Marin’s analysis also focused on the foreseeability of Mr. Scruggs’ acts. On that point, he looked to a 1955 Court of Appeals case, Williams v. State of New York, 308 NY 548. The Williams case involved a man who died of a brain hemorrhage after being frightened when an escaped prisoner commandeered his truck. The inmate was serving time for an attempted robbery, which occurred with an accomplice armed with a toy pistol. The Court found that his conduct in the car-jacking was not foreseeable based upon his record.

Using Williams, attorneys for the state argued that Mr. Scruggs previously had not committed an A felony. But Judge Marin found that argument to be “an undue narrowing of foreseeability,” considering that Mr. Scruggs was deemed a predator by the state.

As such, he granted the plaintiffs’ summary judgment. However, he denied their motion to amend the complaint to include pleadings that would argue an exception to state law limiting joint and several liability for non-economic damages against defendants whose liability is less than 50 percent.

Judge Marin found that although the motion to amend was timely, the plaintiffs did not satisfy the requirements for the specific exceptions under Article 16 of the Civil Practice Law and Rules. Mr. Parker said that the exceptions under Article 16 would pertain to damages for pain and suffering.

The judge therefore called for further proceedings to determine the apportionment of responsibility among the defendants.

State/County: NY/Eastern District. Plaintiff Attorney: Andres F. Alonso, Parker Waichman Alonso LLP, Great Neck, NY. Defense Attorney: Richard A. Tanner, Dickson, Buermann, Tanner, Ashenfelter, Slous, Fox & Boyd, Upper Montclair, NJ. Settlement: 1,215,000. Compensatory Damages: 1,215,000. Incident Date: July 1998. Settlement Date: July 2002. JV Number: 402026.

State/County: NY/Queens. Plaintiff Attorney: Andres F. Alonso, Parker Waichman Alonso LLP, Great Neck, NY. Defense Attorneys: John W. Hoefling, Kelly Rode et al., Mineola, FL; Daniel E. Cerritos, Kelly Rode et al., Mineola, NY. Demand: 200,000. Offer: 175,000. Total Award: 385,000. Compensatory Damages: 385,000. Pain and Suffering: 385,000. Incident Date: September 1998. Trial Date: June 2001. JV Number: 392186.

ATTORNEYS: Andres F. Alonso of Parker Waichman Alonso LLP, Great Neck for plaintiff; Mitchell Teitelbaum of Torino & Bernstein, P.C., Mineola for defendant.

FACTS: The accident occurred on Oct. 2, 1998 at 12:45 p.m. on North Boundary Road where it intersects with Area 261 at John F. Kennedy Airport. Ricardo Carrillo, a 30-year-old air cargo worker, was operating a motorcycle on North Boundary when, he claimed, Benefacio Rodriguez made a left turn in front of him to enter Area 261. Mr. Carrillo contended that Mr. Rodriguez failed to yield the right-of-way. Over his counsel’s objection, the court directed Mr. Carrillo to answer questions regarding whether he had a license to operate a motorcycle on the day of the accident. The court later gave a curative instruction to the jury.

Mr. Rodriguez testified that he did not see Mr. Carrillo when he began his turn, and that Mr. Carrillo hit the rear-most portion of his truck. An independent witness testified that the truck cut off Mr. Carrillo’s motorcycle. On cross-examination, Mr. Rodriguez admitted to lying about his address, among other things, in his deposition and at trial. The jury found him 100 percent negligent.

Injuries: Not before the jury. Ruptured aorta requiring heart bypass surgery and repair with Hemashield graft; fractured vertebrae, brachial plexopathy of the right arm; fracture of the transverse process at T-1 and C-7; fractured ribs, clavicle, scapula, humerus; destruction of the deltoid and brachialis muscles of the right arm; root avulsion at C5-6, C6-7, and C7-8; collapse of the left lung; pneumothorax in the right lung; psychological injuries. During the heart surgery, Mr. Carrillo’s left vocal cord was nicked, and he underwent an implant and two surgeries. He was in a coma for almost two weeks and was hospitalized for almost three months. He returned to work for eight months, but then stopped, and he has not worked since then.

SETTLEMENT: Plaintiff’s verdict on liability. Subsequently settled on the eve of the damages trial for $ 2 million. Post-trial motions were denied.

ATTORNEYS: Andy F. Alonso of Parker Waichman Alonso LLP, Great Neck.
Elsa Rodriguez Preston of McDonald, Carroll, Cohen & Rayhill, Manhattan.
FACTS: Tiziano Sozzi, a 38-year-old painter and plasterer, was injured on March 26, 1998 at 2 p.m. when the ladder he was working on collapsed and he fell 4 to 6 feet to the ground. At the time he was painting an apartment at 240 East 21st Street in Manhattan. He was granted summary judgment on liability, pursuant to Labor Law @ 240(1), and the trial proceeded on damages.

Injuries: Herniated cervical and lumbar discs; laceration to the right cheek, resulting in a 2.5-inch scar. Gramercy Realty claimed he was exaggerating his injuries, which, it claimed, were degenerative in nature.

Disbursements: $ 160,000 for past pain and suffering; $ 98,000 for past lost earnings; $ 19,531 for past medical expenses (stipulated); $ 958,000 for future pain and suffering; $ 800,000 for future lost earnings; $ 150,000 for future medical expenses.

State/County: N.Y./Florida. Plaintiff Attorney: Andres F. Alonso, Parker Waichman Alonso LLP, Great Neck, N.Y.

Defense Attorney: Gordon D. Miller, New York City Law Department, Florida. Medical Witness(es) for the Plaintiff – Neurologist: Carl St. Martin, M.D., New York. Demand: 500,000. Offer: 50,000. Total Award: 225,000. Compensatory Damages: 225,000. Pain and Suffering: 225,000. Incident Date: September 1993. Trial Date: February 1999. JV Number: 376184.

On November 20, 1994, at approximately 1 p.m., tragedy struck the Santana/Espinosa family when a fire broke out in their apartment building located at 252 S. Fourth St. in Brooklyn. During the New York City fire department’s rescue attempts, Yreno Espinosa, a 37-year-old father of two, was killed and his wife, Agueda Santana and their two children, five-year-old Lissette and four-year-old Edwin, were severely injured when the entire family fell six stories to the ground when a Seagrave aerial ladder being utilized in the rescue collapsed. New York City firefighter Gregory Smith was also injured.

Herbert L. Waichman, a litigation partner at Parker Waichman Alonso LLP, and John A. Mullan, an associate with the firm represented the Santana/Espinosa family in its claims against the City of New York, the Seagrave Fire Apparatus Corp. and the owner of the building where the fire took place.
The Santana/Espinosa family’s claim against the City of New York generally involved the negligence in the city’s handling and management of the fire, which included the placement and use of its equipment and the training and conduct of its employees. The Santana/Espinosa family also brought a claim against the city for purchasing improper and inadequate equipment.

Seagrave, the manufacturer of the aerial ladder that collapsed during the rescue, was also named in the Santana/Espinosa lawsuit. The suit claimed that Seagrave had defectively designed the ladder and that the company failed to warn people of the defect and the extreme limitations the defect placed on the use of the ladder. Seagrave also breached its implied warranty, and failed to meet the industry standard declared by the National Fire Protection Association (NFPA) for such equipment.
In addition, the lawsuit claimed that Rite Management, the owner of the building, was liable because the bulkhead (roof) doors were chained and padlocked in violation of the Multiple Dwelling Law, which prevented the family from exiting the building by way of the roof.

According to Parker Waichman Alonso LLP attorney and managing partner Jerrold S. Parker who managed discovery of the case along with Lauren J. Gould, an associate in the firm, the jury found all three defendants liable. The City of New York was found 50 percent liable; the Seagrave Fire Apparatus Corp. was found 35 percent liable; and Rite Management was found 15 percent liable. The damages portion of the plaintiffs’ trial is set to begin on Thursday, May 4.

Smith, the injured firefighter, settled his personal injury claim for an undisclosed amount during trial. The firm of Agoglia, Fassberg, Magee & Crowe represented Smith in his case.

The law firm of Parker Waichman Alonso LLP representing injured victims throughout the United States, has offices in New York City, Long Island . The firm has successfully protected the rights of personal injury victims in many significant cases, including the 1993 World Trade Center Bombing, 1995 Williamsburg Bridge Subway collision, 1992 USAir crash, 1999 Air Egypt crash, Fen-Phen and Rezulin drug cases and many more. Parker Waichman Alonso LLP has been recognized by the international Martindale-Hubbell law directory for its “high professional legal standards and ethics” by registering Parker Waichman Alonso LLP in it Bar Registry of Preeminent Lawyers. For more information about the Santana/Espinosa case, contact the law firm of Parker Waichman Alonso LLP at (516) 466-6500 or www.800lawinfo.com.

/CONTACT: Jerrold S. Parker, jerry@800lawinfo.com, or Herbert L. Waichman, herb@800lawinfo.com, both of Parker Waichman Alonso LLP, 516-466-6500, or 800-LAW-INFO/
09:10 EDT

Celia Arreaga, as administrator of the estate of Marcos Arreaga, and Celia Arreaga, individually, v. Tally Refuse Removal Inc. and Thomas Saccamano, 16216/95.

Supreme Court, Kings County, Sept. 15.

JUDGE: Martin Schneier.

ATTORNEYS: Herbert L. Waichman and David M. Freeman of Parker Waichman Alonso LLP, Great Neck, for Celia Arreaga. Richard R. Eniclerico of Lester Schwab Katz & Dwyer for Tally Refuse Removal and Thomas Saccamano.

FACTS: Marcos Arreaga, 28, was on a bicycle traveling north on Eighth Avenue on April 4, 1995, when he was struck and killed by a garbage truck headed west on West 25th Street. The truck was owned by Tally Refuse Removal, Inc. and driven by Tally employee Thomas Saccamano.
Plaintiff claimed that the truck entered the intersection against a red traffic light. Defendants argued that Mr. Arreaga had entered the intersection against a red light.

JURY TRIAL: Trial lasted five days, with two hours’ deliberation.

OTHER INFORMATION: The jury entered a verdict against the defendants on liability on Sept. 14. The case settled the following day.

The bulk of the settlement, which has a projected value of $ 78 million, went to a 3-year-old girl, who suffered brain damage, and cerebral spastic triplegia and other injuries, according to plaintiffs’ attorney, Jerrold S. Parker of Parker Waichman Alonso LLP in Great Neck. Her parents, Suzanne Zarillo and Frank Varuzza of Montreal, and a 6-year-old brother also were injured.
The settlement was reached in federal court in Albany before Magistrate Judge David R. Homer. The defendants, Bulk Materials and Cryogenic Carriers, were represented by Virginia Goodman Futterman of Bower, Sanger & Futterman of Manhattan.

ATTORNEYS: Herbert L. Waichman and Jonathan O. Gill of Parker Waichman Alonso LLP, Great Neck, for Michael Dodoo.
Rudolph N. Silas, Brooklyn, for MABSTOA.

DISBURSEMENT: $ 265,000 (past pain and suffering); $ 1.5 million (future pain and suffering).

FACTS: On Sept. 24, 1993, Michael Dodoo, then 15, attempted to board a city bus on his way to school. The doors of the bus closed on his foot and he was dragged until he managed to dislodge his foot. He fell, and the bus then ran over his left foot. There were no witnesses to the accident.
Mr. Dodoo claimed that the bus driver failed to make sure the bus doors were clear before closing them and moving forward. MABSTOA argued that the accident did not occur in the manner plaintiff alleged, and that the Mr. Dodoo either slipped while getting on or off the bus or that he simply fell off the bus.

INJURIES: Mr. Dodoo alleged he suffered dislocation fractures of the left forefoot, which required open reduction with external fixation, surgical debridement and skin grafts.

JURY TRIAL: Trial lasted two weeks, with one hour deliberation.