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$1,173,000 result- cited in VerdictSearch.com
Premises Liability - Negligent Repair and/or Maintenance –
Dangerous Condition – Restaurant’s landlord ignored dangerous
stairs, worker alleged
VERDICT: $1,150,000. ACTUAL: $1,173,000
CASE: Oswaldo Bendezu & Yuli Lopez v. Pancas Restaurant Inc.,
No. 6013/03
COURT: Bronx Supreme. JUDGE: Sallie Manzanet.
DATE: 8/17/2005
PLAINTIFF ATTORNEY(S): Alan M. Greenberg, Law Offices of Alan M.
Greenberg P.C., New York, NY
DEFENSE ATTORNEY(S):: Salvatore J. DeSantis, Molod, Spitz &
DeSantis P.C., New York, NY
FACTS & ALLEGATIONS: On Oct. 20, 2002, plaintiff Oswaldo
Bendezu, a Peruvian alien working as a dishwasher at Giovanni’s
Restaurant at 47-49 W. 55th St., in Manhattan, slipped on grease
on the fourth step of a 17-step stairway that connected the
restaurants kitchen and basement. He claimed that he fell and
sustained a severe arm laceration.
Bendezu sued the restaurants out-of-possession landlord, Pancas
Restaurant Inc. He alleged that Pancas Restaurant was negligent
in its maintenance of the staircase and that its negligence
created a dangerous condition.
Bendezu claimed that, at the time of his fall, he was carrying a
plastic trash bag of glass bottles slung over his right
shoulder. He contended that the stairway had a handrail running
down the left side and cement stair treads treated with
high-gloss paint, but no tread coverings. The handrail was flush
against the left wall.
Bendezu contended that he did not notice the grease until after
his fall. He claimed that he tried to break his fall by grabbing
the handrail, but that, because it was flush against the wall,
he could not grip it.
Bendezu’s counsel argued that Pancas Restaurant was liable
because the staircase contained structural defects that violated
the building code. He argued that a shareholder of Pancas
Restaurant, a former restaurateur who had an office in the
building, regularly descended to the basement to bleed the
boiler. As such he contended that Pancas Restaurant had
constructive notice of the handrail defect. He also contended
that Pancas Restaurant should have foreseen the likelihood of
grease accumulating on the stairs and should have prevented it
with rubber tread coverings. He added that the guardrail should
have been repaired.
The defense contended that there was no notice of the defects
and that no prior accident or complaints had taken place over 25
years. It also contended that the grease was the accidents
proximate cause and that the grease’s removal was the
responsibility of Bendezu’s employer, which was not sued because
Bendezu had received workers’ compensation benefits.
INJURIES/DAMAGES: hand; interosseous; lacerations; nerve
damage, ulnar nerve
Bendezu sustained a laceration of his right (dominant) arm’s
ulnar nerve and flexor carpi ulnaris tendon. He underwent
restorative microsurgery in which the damaged nerve and tendon
were reconnected. The procedure was performed at St. Luke’s
Roosevelt Hospital, in Manhattan. However, the nerve failed to
regenerate, and Bendezu developed an ulnar half-claw of his
right hand; his ring and pinky finger are in a permanent flexed,
closed position. His interosseous muscles were also damaged,
resulting in loss of pinch and grip strength.
In July 2004, Bendezu underwent a second surgery, a Z-plasty, to
release skin contractures, which had been deemed a possible
cause of his clawing. After several months, his hand re-clawed.
Bendezu tried to return to work, but he could not perform the
tasks of kitchen worker. He sought recovery of damages for his
past and future pain and suffering and lost enjoyment of life.
His wife, Yuli Lopez, presented a loss-of-consortium claim.
The defense’s expert hand surgeon did not testify, but his
report was put into evidence. He agreed that Bendezu suffers
permanent neurological loss and a lack of sensory and motor
function in his right hand’s fourth and fifth digits. However,
he opined that surgery could extend the fingers into a more
normal appearance.
During the third day of the trial, the parties established a
$1.5 million/$500,000 high/low agreement, which would be
adjusted accordingly if the jury found comparative negligence.
RESULT: The jury rendered a plaintiffs’ verdict. It found
that both parties were negligent, but that Bendezu’s negligence
was not a proximate cause of the accident. It also found that
Bendezu’s damages totaled $1.15 million. The parties
subsequently agreed to a $1,173,000 settlement, which included
the verdict amount plus the waiver of a $23,000 medical expenses
lien.
OSWALD BENDEZU: $1,000,000 lost enjoyment of life; $150,000 pain
and suffering; total $1,150,000
DEMAND: $3,000,000
OFFER: $600,000
INSURER(S): Admiral Insurance Co. Magna Carta Cos.
PLAINTIFF EXPERT(S): Alton Barron, hand surgery, New York, NY;
Richard Berkenfeld, P.E., engineering, Great Neck, NY
DEFENSE EXPERT(S): Dr. Steven Green, hand surgery, New York, NY
— Jacqueline Linger
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