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Decrepit Radiator Fell Onto Child’s Foot – Settlement: $775,000

Staff Writer [New York Law Journal]
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12/7/2009 N.Y.L.J. 5, (col. 2)
Volume 242

Copyright 2009 Incisive Media US Properties, LLC

Monday, December 7, 2009
Verdicts & Settlements

PREMISES LIABILITY

Settlement: $775,000

Castello v. Casper, 6060/05

Court: Kings Supreme, Justice David Schmidt, Sept. 10, 2009

Plaintiff Attorney: Peter DeFilippis of Peter DeFilippis & Associates in Manhattan

Defense Attorneys: Rosario M. D’Apice of Longo & D’Apice in Brooklyn (Ana Beatriz Casper, Estate of John T. Casper, John T. Casper); George Huertas, pro se

Facts & Allegations: On Oct. 7, 2004, plaintiff Alyssa Castello, 3, was hit by a radiator that tipped and fell. The incident occurred in the kitchen of her family’s apartment at 664 Jamaica Ave., Brooklyn. Alyssa sustained foot injuries.

Alyssa’s mother, Tracey Perez, acting individually and as Alyssa’s parent and natural guardian, sued the building’s landlords, Ana and John Casper, and a handyman who had serviced the radiator, George Huertas. The plaintiffs alleged the defendants were negligent in the maintenance and repair of the premises, which created a dangerous condition.

John Casper died prior to the trial. The matter continued against his estate.

Perez claimed the radiator’s fall was caused by the collapse of a surrounding floor area. She contended the radiator’s legs were precariously supported by wood blocks that had been placed by Huertas. She also contended the radiator was not securely attached to its feed pipe because the pipe was rusted and threadbare. She claimed the kitchen’s wood and tile floor, constructed sometime around 1906, was in a visible state of deterioration. She further claimed the radiator’s unstable, wobbly condition was repeatedly reported to Ana Casper, but that the matter was not addressed. She also claimed the landlords were aware of a prior incident in which the radiator had nearly tipped onto an 8-year-old boy.

Ana Casper contended that Huertas was hired to address all of the building’s radiators. She acknowledged that he was not a licensed repairman.

Huertas contended the radiator’s connecting pipes were rusted and beyond repair, and he acknowledged that the damage prevented the radiator from being properly secured. He further contended that he would have simply trashed and replaced the radiator, and he said the entire kitchen floor had to be replaced.

Injuries/Damages: The radiator that hit Alyssa weighed about 170 pounds. It fell onto her left foot, and caused fractures of the second and third metatarsals, which are the bones that connect the middle of the left foot and the left foot’s second and third toes. Her injured foot was greatly swollen, so surgery could not be immediately performed. She ultimately underwent open reduction and the internal fixation of pins and Kirschner wire. Her hospitalization lasted seven days.

Alyssa’s mother claimed Alyssa could not walk during the 11 weeks after surgery. She contended the injured foot slowly regained the ability to bear weight. Alyssa’s fixation hardware was eventually removed, but she claimed her left foot becomes painful during any type of physical activity.

Alyssa’s mother sought recovery of damages for Alyssa’s past and future pain and suffering. She also presented a derivative claim.

Defense counsel contended that Alyssa experienced a satisfactory recovery, that she exaggerated the extent of her injuries and that she does not suffer residual effects.

Result: The plaintiffs, Ana Casper and John Casper’s estate negotiated a pretrial settlement. The plaintiffs agreed to accept a total of $775,000. Plaintiffs’ counsel contemporaneously discontinued the claims against Huertas.

12/7/2009 NYLJ 5, (col. 2)