Successful Defense Verdict by Patrick Cooney in Santiago v. 90 Eighth Ave Housing Corp.

A jury was selected in this matter on July 1st-3rd and tried before the Hon. Peter Sweeney commencing on July 9th and concluding with a damage’s verdict on July 24th.

The plaintiff, Marcus Santiago, a window installer, was injured in the course of his employment when he slipped on algae covered exterior stairs on the property owned by our client 90 Eighth Ave Housing Corp. Plaintiff’s employer, Windows We Are successfully moved to dismiss our clients third party action as the contract lacked indemnity and/or AI provisions. The case was originally pled as a structural defect case (the steps were in poor condition) but for some reason plaintiff testified at his deposition that he slipped on algae and the pleadings were never amended.

Liability was tried on July 9th -11th. Prior to summations, the LL 240(1) and 241(6) causes of actions were dismissed. The LL 200 charge was incorporated into the general negligence charge. The judge also granted our application to dismiss the actual notice claim and reserved decision on the constructive notice claim letting it go to the jury. The jury returned a 100% adverse verdict finding constructive notice. I renewed my motion for a directed verdict arguing a lack of evidence. The Judge continued to reserve, directing me to file a post-trial motion on the issue.

A damages trial proceeded on July 14th and was finished on July 18th. Summations and charge proceeded on July 23rd. The jury deliberated for 2 days.

The plaintiff sustained a herniation at L5-S1. Lattuga performed a discectomy and fusion surgery and following a failed surgery Lattuga recommended and adjacent segment surgery at L4-5. Dr. Merola provided a second opinion that adjacent segment surgery was necessary.Plaintiff did not have the second surgery but testified at trial he is going to have it.

Plaintiff also treated for torn lateral ligaments in his ankle. Touliopoulos performed a reconstructive surgery. Following little improvement, a second surgery was suggested. Again, he didn’t have the surgery but testified he is going to have it.

Plaintiff raised his demand to 6.1 million following a 300K offer. A hi/lo of 750k-2.5M was also rejected. Counsel was not interested in negotiating following the liability verdict. I suspect the carrier would have gone to 3M to settle.

Dwyer, the plaintiff’s economist projected future medical based on an LCP prepared by Carfi as well as lost wages. $ 2,942,890.00 for future meds and $ 3,331,107.00 future lost earnings were “black boarded” by Dwyer.

Our experts Dr. Kim (spinal surgeon), Dr. Weinfeld (ortho), Dr. Canter (LCP) and Mark Ramnauth (voc rehab), were very credible witnesses (later confirmed by the jury). During closing, I suggested various amounts totaling close to 600k.
P/A asked for 2M past p&s and 3M future p&s. She also requested the amounts “black boarded” by Dwyer for a total of $11,273,997.00

The jury returned a damages verdict of $0.00 for past p&s and $0.00 future p&s; 200K for past lost earnings and 125K for future lost earnings; 150K for past meds and 15K for future meds. Total damages are $ 490,000.00.