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Building’s defect allowed visitor’s paralyzing injury, suit alleged

Amount:

$37,397,602.50

Type:

Verdict-Plaintiff

State:

New York

Venue:

New York County

Court:

New York Supreme

Injury Type(s):

back-fracture (fracture, T8), back (fracture, T8);
back-fracture (fracture, T12), back (fracture, T12);
back-fusion, thoracic;
back-fracture (fracture, T8), vertebra (fracture, T8);
back-fracture (fracture, T12), vertebra (fracture, T12);
other-compression fracture; shoulder-fracture (fracture, scapula), shoulder (fracture, scapula);
urological-incontinence; urological-urinary tract infection; paralysis/quadriplegia-paraplegia; paralysis/quadriplegia-paralysis, partial

Case Type:

Premises Liability – Apartment Building; Slips, Trips & Falls – Fall from Height; Premises Liability – Dangerous Condition, Negligent Repair and/or Maintenance

Case Name:

Anastasia Klupchak v. First East Village Associates, Bernard McElhone, Susan Schenk, Tri-Star Equities, Inc. and Rod Feldman,
No. 110617/09

Date:

March 7, 2017

Parties

Plaintiff(s):

Anastasia Klupchak (Female, 22 Years)

Plaintiff Attorney(s):

Thomas A. Moore;
Kramer, Dillof, Livingston & Moore;
New York,
NY,
for
Anastasia Klupchak ■ Matthew Gaier;
Kramer, Dillof, Livingston & Moore;
New York,
NY,
for
Anastasia Klupchak

Plaintiff Expert(s):

Les Seplaki; Ph.D.; Economics; Fort Lee,
NJ called by:
Thomas A. Moore, Matthew Gaier ■ Erica David; M.D.; Physical Medicine; West Orange,
NJ called by:
Thomas A. Moore, Matthew Gaier ■ Robert King; FAIA; Architecture; New York,
NY called by:
Thomas A. Moore, Matthew Gaier ■ William Sawyer; Ph.D.; Medical Toxicology; Sanibel,
FL called by:
Thomas A. Moore, Matthew Gaier

Defendant(s):

Rod Feldman, 

Susan Schenk, 

Bernard McElhone, 

Tri-Star Equities, 

First East Village Associates

Defense Attorney(s):

Peter C. Kopff;
Peter C. Kopff, LLC;
Garden City,
NY,
for
Rod Feldman, Susan Schenk, Bernard McElhone, Tri-Star Equities, First East Village Associates ■ Mark D. Levi;
Smith Mazure Director Wilkins Young & Yagerman, P.C.;
New York,
NY,
for
Rod Feldman, Susan Schenk, Bernard McElhone, Tri-Star Equities, First East Village Associates ■ Eric Z. Leiter;
of counsel, Mauro Lilling Naparty LLP;
Woodbury,
NY,
for
Rod Feldman, Susan Schenk, Bernard McElhone, Tri-Star Equities, First East Village Associates

Defendant Expert(s):

Damon Borg;
Toxicology;
Huntington,
NY called by:
Peter C. Kopff, Mark D. Levi, Eric Z. Leiter ■ Robert Matteini;
Fire Safety/Protection;
Garden City,
NY called by:
Peter C. Kopff, Mark D. Levi, Eric Z. Leiter ■ Jeffrey Gross;
Physical Medicine;
New York,
NY called by:
Peter C. Kopff, Mark D. Levi, Eric Z. Leiter ■ Jeffrey Schwalje;
Engineering;
Edison,
NJ called by:
Peter C. Kopff, Mark D. Levi, Eric Z. Leiter ■ Leonard Freifelder;
Economics;
New York,
NY called by:
Peter C. Kopff, Mark D. Levi, Eric Z. Leiter ■ Valerie Parisi;
Life Care Planning;
Doylestown,
PA called by:
Peter C. Kopff, Mark D. Levi, Eric Z. Leiter ■ Elizabeth Kavaler;
Urogynecology;
New York,
NY called by:
Peter C. Kopff, Mark D. Levi, Eric Z. Leiter

Insurer(s):

Chubb Group of Insurance Cos. for all defendants;
QBE North America for all defendants;
American General Life Insurance Co. for all defendants

Facts:

On Nov. 15, 2008, plaintiff Anastasia Klupchak, 22, a student, visited a fourth-floor apartment that was located at 82 Second Ave., in the East Village section of Manhattan. The apartment’s tenant was conducting a party. During the course of the event, Klupchak exited onto a fire-escape landing that abutted one of the apartment’s windows. She fell through a 34-inch-wide gap that allowed entrance to a lower ladder. She plummeted a distance of 12 feet, and she landed on the roof of the building’s second story. She suffered a paralyzing injury. Klupchak sued the premises’ owner, First East Village Associates; the company’s principals, Bernard McElhone and Susan Schenk; the premises’ manager, Tri-Star Equities; and that company’s principal, Rod Feldman. Klupchak alleged that the defendants were negligent in their maintenance of the premises. She further alleged that the defendants’ negligence created a dangerous condition that caused the accident. Schenk was dismissed, and the matter proceeded to a trial against the remaining defendants. New York law specifies that fire-escape systems must have rail-protected stairways whose incline does not exceed 60 degrees. The defendants’ fire-escape system had unprotected ladders whose incline measured 90 degrees. Such ladders allow the type of unimpeded fall that injured Klupchak, and they are outlawed by New York Multiple Dwelling Law § 53, which was enacted in 1928. The law mandated replacement of all noncompliant fire-escape systems. Klupchak‘s expert architect contended that the fire-escape system should have been replaced, and he noted that a subsequent owner performed a code-compliant replacement. The defense’s expert engineer opined that the fire-escape system was safer than the legally required system. Defense counsel contended that the fire-escape system was not intended for casual use, and they suggested that the apartment’s tenant, Dana Rhinerson, should not have permitted Klupchak‘s use of the fire-escape system. Defense counsel also contended that Klupchak‘s fall was a result of Klupchak having been intoxicated. Klupchak had consumed several alcoholic beverages, and a test revealed that her blood’s alcohol concentration measured 0.185. However, Klupchak‘s expert toxicologist contended that that measurement was artificially inflated by factors that included a trauma-related rupture of red blood cells. Klupchak claimed that she had consumed two or three alcoholic beverages, and Klupchak‘s expert toxicologist opined that Klupchak would not have been impaired.

Injury:

Klupchak suffered a compression-induced fracture of her T8 vertebra, a burst fracture of her T12 vertebra and a fracture of her right, dominant shoulder’s scapula. Klupchak was placed in an ambulance, and she was transported to Bellevue Hospital Center, in Manhattan. After having been transferred to another facility, she underwent fusion of her spine’s T8 and T12 levels. Klupchak suffers residual paralysis of her waist and legs. She requires use of a wheelchair. Her condition causes frequent infections of her urinary tract, so a urologist has prescribed prophylactic use of an antibiotic. Klupchak is also susceptible to incontinence of the bladder and bowel, though her incontinence’s frequency can be diminished via scheduled defecation and urination. Klupchak employs a daily aide who provides four hours of assistance, but Klupchak claimed that she will ultimately require the constant presence of an aide. Klupchak also claimed that she will require further fusion of her spine, that she will require therapy, that she requires lifelong use of medication, and that her disability will necessitate modification of her residence. Klupchak sought recovery of future medical expenses, the future cost of aides, the future cost of modification of her residence, and damages for past and future pain and suffering. The defense’s expert physiatrist opined that Klupchak does not require an aide, though he also estimated that an aide would be required when Klupchak reaches the age of 60. During the jury’s deliberations, the parties negotiated a high/low stipulation: Damages could not exceed $29 million, but they had to equal or exceed $13 million.

Result:

The jury found that the fire-escape system was not safe, that its condition constituted a violation of New York Multiple Dwelling Law § 53, that the defendants were negligent in their failure to address the fire-escape system, and that the defendants’ negligence was a substantial cause of Klupchak‘s injuries. The jury also found that Klupchak should not have ventured onto the fire-escape system’s landing, though it did not fault Rhinerson. The defendants were assigned 75 percent of the liability, and Klupchak was assigned 25 percent of the liability. The jury determined that damages totaled $37,397,602.50. The jury also calculated growth-rate figures for each category of economic damages. After application of those rates, the jury’s award would have totaled $39,199,420. The comparative-negligence reduction would have produced a net recovery of $29,399,565, but Klupchak recovered the stipulated limit: $29 million.

Anastasia Klupchak: $2,000,000 Personal Injury: Past Pain And Suffering; $30,000,000 Personal Injury: Future Pain And Suffering; $4,009,780 Personal Injury: future cost of aides; $329,765 Personal Injury: future cost of medical care (50.5 years); $541,108 Personal Injury: future cost of medical equipment and supplies (50.5 years); $194,425 Personal Injury: future cost of medication (50.5 years); $38,700 Personal Injury: future cost of modification of residence; $150,000 Personal Injury: future cost of surgery; $133,825 Personal Injury: future cost of therapies (50.5 years)

Actual Award:

$29,000,000

Trial Information:

Judge:

Joan A. Madden

Demand:

$35,000,000 (total, from Feldman, First East Village Associates, McElhone and Tri-Star Equities)

Offer:

$15,000,000 (total, by Feldman, First East Village Associates, McElhone and Tri-Star Equities)

Trial Length:

4
 weeks

Trial Deliberations:

3
 days

Jury Vote:

5-1 (‘s negligence, ‘s liability, Rhinerson’s negligence, Rhinerson’s lack of liability, damages for past and future pain and suffering); 6-0 (all other questions)

Jury Composition:

2 male/ 4 female

Editor’s Comment:

This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents.