New York Verdicts

Plaintiff(s):

Francisca Brito (Female, 50 Years)

Plaintiff Attorney(s):

Seth A. Harris;
Burns & Harris;
New York,
NY,
for
Francisca Brito

Plaintiff Expert(s):

Gabriel Dassa; D.O.; Orthopedic Surgery; Bronx,
NY called by:
Seth A. Harris

Defendant(s):

NextG Networks of NY Inc., 

Stratford Five Realty LLC, 

Triumph Construction Corp., 

Consolidated Edison Company of New York Inc.

Defense Attorney(s):

Stewart B. Greenspan;
Rubin, Fiorella & Friedman LLP;
New York,
NY,
for
Triumph Construction Corp. ■ None reported;

for
NextG Networks of NY Inc., Stratford Five Realty LLC, Consolidated Edison Company of New York Inc.

Defendant Expert(s):

Martin Barschi;
Orthopedic Surgery;
White Plains,
NY called by:
Stewart B. Greenspan

Insurer(s):

Everest Re Group Ltd. for Triumph Construction (excess);
Valiant Insurance Group Inc. for Triumph Construction (primary insurer)

During the evening of March 2, 2009, plaintiff Francisca Brito, 50, a home health aide, fell while she was traversing a sidewalk that abutted the premises of 1307 Edward L Grant Highway, in the Highbridge section of the Bronx. She sustained an injury of an ankle. Brito sued the adjoining premises’ owner, Stratford Five Realty LLC, and two entities that had commissioned excavation at or near the subject area of the sidewalk, Consolidated Edison Company of New York Inc. and NextG Networks of NY Inc. Brito alleged that Consolidated Edison and NextG Networks negligently created a dangerous condition that caused the accident. She further alleged that Stratford Five Realty negligently failed to address the hazard. In a subsequent filing, Brito sued a contractor that had excavated the adjoining roadway, Triumph Construction Corp. Brito alleged that Triumph Construction negligently created a dangerous condition that caused the accident. The cases were consolidated, but Consolidated Edison, NextG Networks and Stratford Five Realty were dismissed via summary judgment. The matter proceeded to a trial against Triumph Construction. Brito claimed that she tripped on a broken section of the sidewalk. Brito’s counsel claimed that Triumph Construction caused the defect during an excavation necessary for the installation of a storm drain. Brito’s counsel claimed that the defect persisted during the three weeks that preceded the accident. He further claimed that the work required use of a backhoe, a van and a dump truck. He contended that the damaged area should have been closed to pedestrians. Defense counsel contended that Triumph Construction’s work did not encroach upon the sidewalk and that it was performed some six months prior to the accident. He suggested that Brito simply slipped on snow and ice. Meteorological records indicated that some 5 inches of snow fell on the day of the accident, and defense counsel claimed that Brito’s medical records indicate that she fell on snow and ice.

Brito sustained a bimalleolar equivalent fracture. Such an injury involves a fracture of one of an ankle’s malleoli, which are the bony protuberances, and an injury of the ankle’s medial ligaments. The injury involved Brito’s right ankle and its fibular component. Brito’s injury was addressed via open reduction, internal fixation of a plate and five screws, and the application of a splint. Brito claimed that she suffers persistent, residual, arthritic pain, that she experiences periodic stiffness and swelling of her right ankle, that the ankle has not regained full range of motion, and that her residual effects have altered her gait. Brito’s expert orthopedist opined that Brito may have to undergo surgery that would involve removal of her fixation hardware and debridement of damaged tissue. The doctor also opined that Brito’s injury is permanent. Brito sought recovery of damages for past and future pain and suffering. The defense’s expert orthopedist opined that Brito’s right ankle retains normal range of motion and that the ankle has not developed arthritis.

After the presentation of trial arguments, but prior to the scheduled delivery of summations, the parties negotiated a settlement. Triumph Construction’s primary insurer agreed to pay $750,000, from a policy that provided $1 million of coverage.

Judge:

Wilma Guzman

Demand:

$500,000

Offer:

$90,000

Trial Length:

3
 weeks

This report is based on information that was provided by plaintiff’s counsel and Triumph Construction’s counsel. Additional information was gleaned from court documents. The remaining defendants’ counsel was not asked to contribute.