Contractors’ machines wrecked sidewalk, fallen woman claimed Settlement – $525,000

Staff Writer [VerdictSearch]
Negligent Repair and/or Maintenance Dangerous Condition
Slips, Trips & Falls Trip and Fall Sidewalk
Case: Barbara Garber v. Daniel Weiss, David Weiss, Abraham Weiss, Weiss & Company, LLP 6466, LLC Baruch Singer, Anna Maria Oppedisano, Pietro Oppedisano,  Disano Construction Co., Inc., Thomas Perno, Long Island Concrete, Inc.
Court: Queens Supreme
Judge: Joseph J. Risi
Date: 10/15/2018
Plaintiff Attorney(s): Peter DeFilippis, Peter DeFilippis & Associates, P.C., Dobbs Ferry, NY and Manhattan
Defense Attorney(s):
Robert L. Bernstein Jr., Baker Greenspan & Bernstein, Esqs., Bellmore, NY (JJP Coleman LLC, 6466 LLC, Baruch Singer, Daniel Weiss, David Weiss)
Richard J. Flanagan, Flanagan Law, PLLC, New York, NY (LIC Construction Inc.)
Dana Ricci, Litchfield Cavo LLP, New York, NY (Disano Construction Co. Inc.)
Luigi Tollis, Fixler & LaGattuta, LLP, New York, NY (Long Island Concrete Inc.)

On April 30, 2011, plaintiff Barbara Garber, 61, a fundraiser (for Girls Scouts of the USA) , fell while she was traversing a sidewalk that abutted the premises of 44-35 Purves St., in the Long Island City section of Queens. She suffered an injury of a foot. Garber sued the premises’ owner, JJP Coleman LLC; JJP Coleman’s owners, Daniel Weiss and David Weiss; and the premises’ tenants, Disano Construction Co. Inc. and Long Island Concrete Inc. The lawsuit alleged that the defendants negligently created a dangerous condition that caused Garber’s fall. The lawsuit further alleged that JJP Coleman negligently failed to address the hazard. Garber’s counsel negotiated a pretrial settlement of the claims against Disano Construction Co. Inc. and Long Island Concrete. Disano  insurer agreed to pay $225,000, and Long Island Concrete’s insurer agreed to pay $225,000. The remaining defendants–save for JJP Coleman–were dismissed. The matter proceeded to a trial against JJP Coleman, though the jury was instructed that fault could also be assigned to Disano Construction and/or Long Island Concrete. Garber claimed that her fall was a result of her having tripped on a damaged portion of the sidewalk. She claimed that the sidewalk was badly marred by divots and broken areas, and her counsel contended that the damage had been created by heavy machinery that contractors were storing at the subject premises and that was regularly transported across the sidewalk. Garber’s counsel contended that the sidewalk’s defects were a product of about four years of such traffic. Garber’s expert engineer opined that zoning laws prohibited the storage of heavy machinery at the subject premises.JJP Coleman’s counsel contended that Disano Construction and Long Island Concrete owned and operated the machinery that was blamed for the sidewalk’s defects. He also contended that the sidewalk’s defects were an open, obvious condition that Garber should have avoided, but Garber’s counsel contended that the defects were scattered about the entirety of the sidewalk and that a safer path was not available.

Complex regional pain syndrome; fracture, foot; fracture, metatarsal; internal fixation; open reduction; physical therapy; pins/rods/screws; reflex sympathetic dystrophy.The trial was bifurcated. Damages were not before the court.Garber suffered a Jones fracture: a fracture of the base of a foot’s fifth metatarsal, which is the bone that joins the fifth toe and the center of the foot. The injury involved her right foot. Garber was retrieved by an ambulance, and she was transported to a hospital. She underwent minor treatment.After 16 days had passed, Garber’s fracture was addressed via open reduction, the internal fixation of a screw and the implantation of Kirschner wires, which are commonly termed “percutaneous pins.” On Aug. 1, 2011, Garber commenced a course of physical therapy. The treatment lasted until Dec. 1, 2011, and it comprised 19 sessions.Garber claimed that her injury and resultant convalescence prevented her performance of about 17 weeks of work. She further claimed that her right foot has developed complex regional pain syndrome, which is a chronic neurological condition that is typically characterized by severe pain, pathological changes of bone and skin, swollenness, and/or increased sensitivity to physical stimulus. The syndrome is alternately termed “reflex sympathetic dystrophy.”Garber sought recovery of past lost earnings, damages for past pain and suffering, and damages for future pain and suffering.The defense’s expert physiatrist submitted a report in which he opined that Garber achieved a full recovery and does not suffer residual impairment of her ambulation.

The jury found that JJP Coleman was liable for the accident, but liability was also assigned to Disano Construction, Long Island Concrete and Garber. JJP Coleman was apportioned 34 percent of the liability; Garber was apportioned 17 percent of the liability; and the settling defendants, Disano Construction and Long Island Concrete, were apportioned 21 percent of the liability and 28 percent of the liability, respectively.

Prior to the scheduled start of the trial’s damages phase, Garber’s counsel negotiated a settlement of the claim against JJP Coleman. JJP Coleman’s insurer (RLI Insurance Corp.) agreed to pay $75,000. The pretrial settlements produced a combined recovery of $450,000, so Garber’s total recovery was $525,000.

INSURER(S): RLI Corp. for JJP Coleman
First Mercury Insurance Co. for Disano Construction
Endurance Specialty Holdings Ltd. for Long Island Concrete

PLAINTIFF EXPERT(S): Nicholas M. Bellizzi, P.E., engineering, Holmdel, NJ
Charles M. Lombardi, M.D., podiatry, Flushing, NY

DEFENSE EXPERT(S): Lloyd R. Saberski, M.D., pain management, New Haven, CT

EDITOR’S NOTE: This report is based on information that was provided by plaintiff’s counsel and counsel of 6646 LLC, JJP Coleman, Baruch Singer, Daniel Weiss and David Weiss. Additional information was gleaned from court documents. Disano Construction’s counsel did not respond to the reporter’s phone calls, and the remaining defendants’ counsel were not asked to contribute.
-Erik Halberg