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Premises Liability – Fall Down – Pizzeria door handle and latch intentionally removed by owner – Ankle fracture.

New York Jury Verdict Review & Analysis

Shoulder Injury $300,000

Supreme Court, Ninth Judicial District, Putnam County, New York.
LAURIE and CHRISTOPHER COSTELLO vs. MARIOS RISTORANTE & PIZZERIA, MARIO DINARDI, ET AL
3390/09
DATE OF VERDICT/SETTLEMENT: April 01, 2016
SUMMARY:
RESULT: $625,000 RECOVERY
EXPERT WITNESSES:
Plaintiff’s architect expert: Gary Spilatro from New Rochelle, NY.
Plaintiff’s orthopedic surgeon expert: Arthur Pidoriano, MD from Jefferson Valley, NY.
ATTORNEYS:
Plaintiff’s; Peter DeFilippis of P. DeFilippis & Assoc. in New York, NY
Defendent’s: Robert Conway of Marshall, Conway and Bradely in New York, NY.
JUDGE: Robert M. DiBella
RANGE AMOUNT: $500,000 – 999,999
INSURANCE CO: Utica First
STATE: New York
COUNTY: Putnam
INJURIES:
Premises Liability – Fall down – Pizzeria door handle and latch intentionally removed by owner – Ankle fracture.

FACTS:
The liability portion of this case was tried in September, 2015 and appeared in Vol. 32, Issue 9 of this publication. The jury found 100% in favor of the Plaintiff after deliberating for only 15 minutes. The Court held that the jury would be disbanded before the damages phase because an inadequate number (six) were left as and this case was bifurcated. For convenience of the reader, some contentions in the liability trial will be repeated here.

The plaintiff’s expert architect contended that the entranceway’s door handle and latch of the screen door (being used as a primary door) were recklessly removed by the owner to address prior difficulties and accidents by others but had, in fact, made the condition more dangerous. The plaintiff’s architect also discussed some seven building code violations that included the absence of handrails, the absence of a landing on the outside of the door, the absence of contrast between the walkway, step, and riser, which all blended together, and lack of uniformity in the height of risers and nosings of the steps. The plaintiff also established that the defendant had previously reconstructed the entranceway without applying for required permits.

The plaintiff’s fall and aftermath were captured by surveillance cameras located on the exterior of the restaurant. Immediately after the incident, the plaintiff’s counsel relates that he sent letters to the defendant pizzeria and their insurance carrier to preserve any video, but that the defendant pizzeria and their insurance company failed to do so. The plaintiff moved to strike the defendant’s answer for intentionally or negligently destroying a key piece of evidence. The court held that it would be more appropriate to instruct the jury that they were free to draw an adverse inference against the defendant for the failure to preserve the tape (a spoliation charge).

At this damages trial, the plaintiff made a pending motion to extend such spoliation instruction to the damages jury and requested that they be allowed to determine if punitive damages were appropriate. The plaintiff maintained when she fell, she was writhing in great pain for some period until assistance came. She suffered a trimalleolar fracture and underwent an ORIF. The plaintiff had a second surgery approximately six months later, in which the hardware was removed. The plaintiff maintained that she will suffer permanent pain and limitations and that future surgery will probably be required.The plaintiff made no income claims.

The damages case settled three weeks before the scheduled recommencement of the trial for $625,000.

Jury Verdicts Review Publications, Inc.

PUBLISHED IN: New York Jury Verdict Review & Analysis, Vol. 33, Issue 5