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Plaintiff Trips and Falls over Metal Curb Piece That Should Be Attached to Metal Catch Basin Grate and Sidewalk Immediately after She Leaves Cab at Building Complex in Which She Resides-$550,000 Recovery

CORTEZ vs. CITY OF NEW YORK ET AL: Supreme Court, Second Judicial District, Kings County, New York. Index no: 5653/09
DATE OF VERDICT/SETTLEMENT: April, 2019

PUBLISHED IN: New York Jury Verdict Review & Analysis, Vol. 36, Issue 7

TOPIC: Municipal liability – Plaintiff trips and falls over metal curb piece that should be attached to metal catch basin grate and sidewalk immediately after she leaves cab at building complex in which she resides – Prior written notice – Knee tear – Knee replacement surgery – No income claims.

SUMMARY:

RESULT: $550,000 recovery

EXPERT WITNESSES:
Plaintiff’s engineer expert: Nicholas Bellizzi, PE from Holmdel, NJ.
Plaintiff’s orthopedic surgeon expert: Steven Arsht, M.D. from New York, NY.

ATTORNEY:
Plaintiff’s: Peter DeFilippis of Peter DeFilippis & Associates in New York, NY and Dobbs Ferry, NY.

JUDGE: Wayne Saitta
RANGE AMOUNT: $500,000-999,999
STATE: New York
COUNTY: Kings

INJURIES:
Municipal liability – Plaintiff trips and falls over metal curb piece that should be attached to metal catch basin grate and sidewalk immediately after she leaves cab at building complex in which she resides – Prior written notice – Knee tear – Knee replacement surgery – No income claims.

FACTS:
The plaintiff, in her early 60s, contended that the defendant City of New York failed to replace a broken metal curb piece that normally connected the sidewalk to the grate and was aligned with the curb, causing her to trip and fall, injuring herself. The plaintiff introduced a Big Apple map that showed that the piece had been missing from the curb line for a lengthy period. The plaintiff presented the EBT testimony of a neighbor who testified similarly. The plaintiff indicated that she observed the piece laying in the roadway detached from the curb on a number of occasions over an extended period. The defendant maintained that the plaintiff should have seen the object and was comparatively negligent.

The plaintiff countered that in view of the fact that she had just exited the cab, it was to be expected that she would not observe the device at this time. The plaintiff also argued that in view of the large size of the complex, her failure to recall the location was understandable. The plaintiff’s engineering expert concluded that when the four foot long, 200 pound piece was first installed, the city failed to properly attach the connecting hardware and plaintiff asserted that the city created the condition.

The plaintiff, who was returning home by cab after doing light shopping, related that she exited the cab, took several steps and fell over the curb piece. The plaintiff suffered an internal derangement of the knee, as well as a meniscal tear. She underwent arthroscopic surgery. The plaintiff asserted that this course was insufficient and that she subsequently required knee replacement surgery. The plaintiff contended that she will suffer pain and some difficulties ambulating for the remainder of her life.

The plaintiff was not working at the time of the incident and made no income claims.

The case was bifurcated. Upon the close of plaintiff’s liability case before the jury, the City moved for a directed verdict based on lack of notice. The plaintiff argued that the jury could find that the City had actual notice as it negligently caused and created the condition when they improperly installed the curb piece without attaching the hardware correctly. The plaintiff also argued prior written notice per the Big Apple Map. The Judge denied the City’s motions. The City then increased its offer and the plaintiff settled for $500,000 from the City and $50,000 from the adjoining property owner. The total settlement was for pain and suffering only.

 

CORTEZ vs. CITY OF NEW YORK ET AL, 36 NY. J.V.R.A. 7:1636 NY. J.V.R.A. 7:16, 2019 WL 3885138 (N.Y.Sup.) (Verdict and Settlement Summary)

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