Anthony and Madeline Ciervo v. City of New York

Anthony and Madeline Ciervo v. City of New York

TORN MENISCUS

sanitation worker

Queens, NY

$721,881 for Anthony C., reduced to $599,161.23 for 17% comparative negligence of Pltf. (6/0).

$599,161.23

XV/38-15 FALLDOWN FAILURE TO REPAIR DEFECTIVE SIDEWALK BIG APPLE POTHOLE MAP NOTICE TORN MENISCUS RETRIAL ON DAMAGES

Anthony and Madeline Ciervo v. City of New York 4633/93 5-day trial Verdict 1/30/98 Queens Supreme

Judge: Allan Weiss

Verdict: $721,881 for Anthony C., reduced to $599,161.23 for 17% comparative negligence of Pltf. (6/0). Breakdown: $200,000 for past pain and suffering; $264,376 for past lost earnings; $41,000 for past medical expenses; $100,000 for future pain and suffering; $66, 510 for future lost earnings; $35,000 for future medical expenses; $8, 995 for future custodial care; $6,000 for future rehabilitative treatment.

$50,000 for Madeline C. for loss of services, reduced to $ 41,500 for 17% comparative negligence of Pltf. Jury: 2 male, 4 female.

This case was originally tried in November 1995. In that trial, the jury found Deft. 83% at fault for the accident. Deft. s motion to set aside the verdict under the commonlaw firefighter s rule was granted, and an appeal was filed by Pltf. The Appellate Division, Second Department reversed the decision on 6/30/97 and the case was retried on damages only. Ciervo v. City of New York, 637 N.Y.S.2d 918.

After a collateral source hearing, the damages were further reduced to $409,552 as follows: $39,321 for past lost earnings ( reduced from $264,376); $12,899 for past medical expenses (reduced from $41,000); $24,208 for future lost earnings (reduced from $66,510 ); $22,124 for future medical expenses (reduced from $35,000); $5,000 for future custodial care (reduced from $8,995).

Pltf. Atty: Alan C. Kestenbaum of Weil & Kestenbaum, Bayside

Deft. Atty: Kwok Lai Mui and Marc S. Andes, Assts. Corp. Counsel, on liability and damages, respectively

Facts: Pltf., a 43-year-old sanitation worker, claimed that on 7/14/92 he was injured while taking garbage to a truck in Ozone Park. Pltf. claimed that he had stepped in a hole on the sidewalk, causing him to trip and fall. He testified that Deft. had notice of the defect in a Big Apple Pothole Map and failed to repair it. Deft. denied that it had prior notice of a hole in the sidewalk. Deft. contended that the Big Apple Pothole Map indicated that there was a raised sidewalk at that location. In the first trial, Deft. s motion to extend the firefighter s rule, to sanitation employees was granted and the judge dismissed the complaint. Pltf. filed an appeal and the decision was reversed unanimously by the Appellate Division Second Department.

Injuries: torn meniscus of the left knee. Pltf. required arthroscopic surgery in October 1992 and a total knee replacement in 1997. He underwent 6 months of physical therapy. Pltf. claimed that he was permanently disabled and could not return to work. Deft. argued that Pltf. had undergone knee surgeries in 1980 and 1986 and that the injury resulted from the prior surgeries.

Demonstrative evidence: medical records of 1992 and 1997; Department of Sanitation medical records. Initial offer: $90,000; initial demand: $350,000. Jury deliberation: 3 hours.

Pltf. Experts: Dr. Raymond Shebairo, orth. surg., New Hyde Park; Edmond Provder, vocational rehabilitation, Manhattan; Seymour Barcun, Ph.D., economist, New Jersey.

Deft. Expert: There was no expert testimony for Deft.