Chartwell Obtains Affirmance of Dismissal of Bronx County Amputation Claim



William H. Grae

WILLIAM H. GRAE has a breadth of litigation defense experience, with a primary focus on personal injury liability defense. He has a broad range of trial and appellate experience in this area and has worked on behalf of insurers and self-insured entities, principally involving cases of construction-site accidents, commercial and residential premises liability, defense of interstate motor-carriers in catastrophic truck accidents, and litigation of related coverage issues, in state and...

Chartwell has prevailed in New York’s Appellate Division on behalf of the owner and manager of a Bronx housing development sued by a tenant who sustained a partial foot amputation on the premises.  By decision dated April 12, 2018, the First Department accepted arguments by William H. Grae, of Chartwell’s Manhattan and Moorestown, NJ, offices, and affirmed summary judgment that he previously obtained in 2016 that had dismissed plaintiff’s claims in their entirety.  
 
A closing door in a Bronx high-rise traumatically amputated a portion of a female tenant’s foot.  Plaintiff contended that the accident was the result of an unreasonably dangerous and defective condition based, in part, on a report from an engineer with alleged expertise in the field of door construction and repair who claimed that the mechanism attached to the door had been improperly maintained.
 
Efforts to settle the action via mediation failed after plaintiff increased her settlement demand during the course of negotiations to a figure in excess of $700,000 together with reimbursement of medical expenses.  In moving for summary judgment, defendants attacked the admissibility of plaintiff’s expert’s opinion while also offering the motion court an opinion by expert witness David Guido, P.E., as proof of the absence of any Code violation and/or deviation from accepted industry practice.  Defendants’ motion also provided the lower court with a detailed explanation of why the function of the allegedly defective component of the door lacked any legally cognizable connection with the occurrence at issue and that the mechanism in question was never designed to prevent the door from slamming.
 
Summary judgment is rarely granted in premises liability cases in Bronx County, particularly where conflicting expert opinions have been offered as support by the respective parties.  Here, however, defendants’ dismissal arguments were strengthened by aggressive maneuvering during discovery that successfully limited the proof plaintiff was permitted to offer the court and prevented plaintiff from attempting to rely on new theories.   The lower Court found defendants’ submissions dispositive, agreed that plaintiff’s expert had mischaracterized the nature of the device at issue and relied on conclusory assertions and speculation rather than admissible proof, and ruled that defendant had proven that the accident occurred without any negligence on the part of the building.  
 
Plaintiff perfected her appeal to the Appellate Division in October, 2017.  Following oral argument on March 21, 2018, by decision dated April 12, 2018, the Appellate Division unanimously affirmed dismissal of the action by the lower court.  
 
The Appellate Division agreed that defendant successfully established not only a prima facie entitlement to summary judgment in the first place but also adopted defendant’s argument that plaintiff’s expert’s opinion lacked necessary foundation to be admissible.  New York law actually permits use of potentially inadmissible evidence to show the existence of unresolved material questions of fact.  Here, however, the Appellate Division held, as had the lower court, that defendant’s proof mandated dismissal because it explained how and why the accident occurred without the existence of any actionable defect.  The Court also adopted defendants’ argument, as had the lower court, that plaintiff’s attempt to rely on res ipsa loquitur under the circumstances was legally impermissible.
 
The decision, Jones v. Underhill Realty, 160 A.D.3d 494 (1st Dep’t 2018), constitutes controlling authority in the First Department (New York and Bronx Counties) and persuasive authority elsewhere in the State of New York.  
 
Mr. Grae defends catastrophic exposure personal-injury actions arising out of trucking, construction, and general liability/premises accidents throughout New York and New Jersey.  His practice predominantly focuses on venues that have traditionally been considered unusually dangerous for corporate defendants.   He relies on an unusually broad range of professional and personal experience to develop creative solutions to legal challenges to provide improbably favorable results for his clients.  He is admitted to practice before the State and federal courts in the States of New Jersey and New York.  
 
Chartwell offers a cohesive liability defense program for clients with both local and national scales of operations.  Chartwell itself continues to expand and currently offers offices in seven (7) different States from Rhode Island to Florida.  Chartwell’s legal team practices in the areas of liability defense, workers’ compensation, insurance coverage, subrogation, and related areas.