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NY Dismissed from Bridge Painter’s Suit

Thursday, November 14, 2013

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The City of New York has been released from a multi-defendant lawsuit by a former bridge painter who alleges that his years on the job caused his lung cancer.

But 16 other defendants—ranging from the city's transit authority to facility owners to contractors and subcontractors—remain for now.

Justice Kathryn Freed, of the Supreme Court of New York, dismissed the city from the action filed Dec. 26, 2012, by Velimer Zic and his wife, Marilyn Zic.

59thStBridge
Wikimedia Commons / Simsala111

Zic's assignments as a union bridge painter, lead paint abatement worker, and foreman included five years at the 59th Street Bridge (officially, the Ed Koch Queensboro Bridge).

Freed did not address the merits of the Zics' claim, but said the statute of limitations had run out for Velimer Zic to file the action. Under New York City law, the statute of limitations for tort claims against a municipality is one year and 90 days after the event occurred.

Tort claims allege property damage, personal injury or death caused by a wrong act or omission, rather than a contractual or criminal act.

The Complaint

Zic became ill in January 2011 and was diagnosed with lung cancer on April 14, 2011, court papers say. He had worked since June 11, 2001, as a member of IUPAT's Local 806 Structural Steel and Bridge Painters of Greater New York, employed by L&L Painting Co. Inc. as a lead paint abatement worker, painter and foreman.

The job took him to numerous work sites around the New York City metro area, including the Brooklyn Navy Yard, New York City Transit Authority stations and lines, Citi Field, The New York Times Building and, most recently, the Thurgood Marshall U.S. Courthouse.

His longest employment during that time was a five-year stint (from 2004 to 2009) at the 59th Street Bridge (officially, the Ed Koch Queensboro Bridge) over the East River, according to court documents.

Beating the Tort Clock

Zic's original complaint is sealed. At issue in the New York case, however, was the date that started the clock on Zic's lawsuit.

BrooklynNavyYard
brooklynnavyyard.org

Zic spent part of his painting career working at the Brooklyn Navy Yard, now an industrial park. By the time two physicians suggested that his lung cancer was tied to his job, a judge said, it was too late to sue.

New York City claims that that clock should have started with the onset of Zic's illness, in January 2011. At the very latest, the city argued, the clock should begin with Zic's initial diagnosis in April 2011, which would have required him to file a complaint by July 2012.

Municipal co-defendants Metropolitan Transportation Authority (MTA) and New York City Transit Authority (NYCTA) are making the same argument in their suits.

Zic contends, however, that the 15-month clock for making claims should have started with an "independent medical evaluation" conducted a year after his initial diagnosis, when his file was reviewed by a physician retained by the New York State Insurance Fund for a worker's compensation claim.

'His Exposure as a Painter Played a Causal Role'

After reviewing Zic's medical records, Carl B. Friedman, M.D., reported on April 24, 2012: "[I]n my opinion, the patient's lung cancer is directly related to his occupational exposure to [these] carcinogens."

Zic contends that that report, which was the first to tie his illness to his occupational exposure, should have been the starting date for legal claims against his former employers and supervisors.

ThurgoodMarshallCourthouse
Wikimedia Commons / Americasroof

Zic fell ill in January 2011, while working at the Thurgood Marshall U.S. Courthouse in Manhattan. Three months later, he was diagnosed with lung cancer.

Indeed, court papers say, Zic notes an additional report June 6, 2012, following examination by a pulmonary specialist, which concluded:

"Aside from his exposure as a patiner, there is no other explanation why this gentleman developed lung cancer at such an early stage. Therefore, in my opinion, it is more likely than not that his exposure as a painter played a causal role in his development of lung cancer.

"However, I am unable to establish a definite causal relationship between his exposure and the development of lung cancer."

'No Option'

Freed, however, ruled that Zic's initial cancer diagnosis—not his earlier symptoms or the later evaluations connecting his illness to his job—started that clock on his claim. And that clock ran out four months before his action was filed.

"In consideration of this, the Court has no option but to grant the City's motion for summary judgment," the court said.

   

Tagged categories: Bridges; Facility Managers; Government contracts; Health and safety; Lawsuits; Lead; Paint and coatings removal; Painting Contractor; Residential contractors; Respiratory Protection Standard; Subcontractors

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