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Store’s manager claimed he was crowned by freight elevator

5/5/2009
Giacomino DiGiacomo v. Alexanders Inc. d/b/a Rego Park Mall Schindler Elevator Corporation, Vornado Realty Queens Retail Development Corp. & Alexanders Rego Park Center, Inc., No. 16971/05

Settlement: $2,050,000

Court: Suffolk Supreme

Judge: Patrick A. Sweeney

Plaintiff Attorney(s):
Glenn Auletta, Gruenberg & Kelly, P.C., Ronkonkoma, NY

Defense Attorney(s):
Daryl R. Glockner, Farley, Glockner & Halpern, LLP, Mineola, NY (Schindler Elevator Corp.) Lesley C. Siskind, Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY (Alexanders Inc., Alexanders Rego Park Center Inc., Queens Retail Development Corp., Vornado Realty)

Facts & Allegations:
On July 12, 2004, plaintiffGiacominoDigiacomo, 37, a store’s manager, was in the freight elevator at the Rego Park Mall, unloading a delivery when the elevator door came down, striking him in the back. Digiacomo claimed that he sustained injuries of his back.

Digiacomo sued the mall’s owners, Alexanders Inc., Alexanders Rego ParkCenter Inc.,Queens RetailDevelopmentCorp. andVornado Realty, and the elevator’s contracted service provider, Schindler Elevator Corp. Digiacomo alleged that the defendants were negligent in their maintenance of the elevator.

Digiacomo,Alexanders,Alexanders Rego Park Center,Queens Retail Development and Vornado Realty negotiated a $550,000 pretrial settlement. The matter proceeded to a trial against Schindler Elevator.

Plaintiff’s counsel claimed that the warning bell for the freight elevator door was not in compliance with state code because it did not provide sufficient warning time. He also claimed that the safety edge of the door was defective as it did not retract upon striking Digiacomo.He contended that Schindler Elevator did not engage in regular and systematic preventativemaintenance. Digiacomo’s elevator expert explained that freight elevators and their safety featuresmust be examined during a preventative maintenance check. During cross-examination, the defense’s elevator expert agreed.

Defense counsel contended that the elevator’s door was not defective and that, if any defect existed, it was due to vandalism. Three elevator mechanics provided testimony regarding the use of a handheld computer and the procedures for entering data regarding service calls and preventive maintenance and the amount of time required for the completion of each task. However, Digiacomo’s counsel reported that the mechanics provided inconsistent testimony regarding polices and procedures for preventative maintenance and for examining safety features of freight elevators during service calls and preventative maintenance calls. According to Digiacomo’s counsel, themechanics testified that the safety edges are not checked along the entire edge, which is prone to damage, during preventive maintenance checks.

Injuries/Damages:
bulging disc, lumbar; diskectomy; fusion, lumbar; herniated disc at L5-S1

Digiacomo claimed that he sustained a herniation of his L5-S1 intervertebral disc. He also claimed that he developed a bulge of his L3-4 disc. He underwent surgery that included a diskectomy, which involved the excision of his herniated disc, and fusion of the associated area of his spine.

Digiacomo contended that he suffers a residual disability that prevents his resumption of work. He sought recovery of a total of $3.9 million to $4.6 million for his past and future lost earnings. He also sought recovery of damages for his past and future pain and suffering.

Defense counsel contended that Digiacomo did not sustain a disc herniation and that any herniation was not caused by the accident. He claimed that Digiacomo was able to return to work and was not disabled. He reported that surveillance videotape established that Digiacomo is not totally disabled.

Result:
The jury found that Schindler Elevator was 75-percent liable while the remaining defendants were 25-percent liable. During the first day of the trial’s damages phase, the parties negotiated a settlement. Schindler Elevator’s insurer, which also insured the remaining defendants, agreed to pay $1.5 million from its $2 million policy. After the inclusion of the pretrial settlement, Digiacomo’s recovery totaled $2.05 million.