AS PUBLISHED IN

The New York Jury Verdict Reporter

XVIII/45-42 FALLDOWN - DEPRESSION IN SIDEWALK - COMMINUTED FRACTURE OF WRIST REQUIRING SURGERY

SETTLEMENT: Plaintiff v. Kew Gardens Company; Newmark & Company Real Estate, Inc.; and Jack LaLanne Fitness Centers, Inc. 3196/96 Date of Settlement 3/26/01 Queens Supreme

Pltf. Atty: Todd D. Greenberg of Addabbo & Greenberg, Forest Hills
Deft. Atty: Edward Rosenthal of the Law Office of Linda G. Gimble, Manhattan, for Kew Gardens and
Newmark Bennett C. Lofaro of Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Manhattan,
for Jack LaLanne Fitness Centers

This action settled prior to jury selection for $75,000. Pltf., a 36-year-old homemaker, claimed that on 10/2/95 at approximately 9 PM, she fell in front of the Jack LaLanne Fitness Center on Kew Gardens Rd. in Queens. Pltf. claimed that after exercising at the Fitness Center, her left foot caught in a depressed area of the sidewalk approximately 8 feet from the entrance of the building. Pltf. alleged that Defts. failed to maintain the plaza area in front of the building. Pltf.'s expert would have testified that the depression was approximately ¾ inch deep and 3 inches wide was caused by dripping water on wet cement.
The case against Jack LaLanne Fitness Center was dismissed on stipulation during motion practice because the lease demonstrated that the owner of the building, Deft. Kew Gardens Co., was responsible for the common area and that the tenants had no responsibility.
Deft. Kew Gardens contended that the defect was a trivial defect and was not actionable. Pltf. argued that despite the measurements of the defect, it was immediately outside the doorway of the Jack LaLanne Fitness Center, where people would normally look for transportation and it constituted a trap and a nuisance and therefore was not a trivial defect.
Injuries: comminuted fracture of the left (nondominant) wrist with multiple fragments. Pltf. underwent closed reduction on 10/3/95 and open reduction and internal fixation on 10/5/95. Specials: approximately $5,000.

Pltf. Experts: Pltf. would have called Richard Berkenfelf, P.E., engineer, of Berkenfeld-Zeolla & Associates, Great Neck; Dr. David Hsu, orth. Surg., Woodhaven.