The firm is proud to announce that New York City partner Mindy Jayne has obtained dismissal of a personal injury lawsuit against the firm’s retail-store client in the matter of MiclasseGue, et al. v. Acacia Realty, LLC, pending before the Supreme Court of the State of New York, Westchester County. The lawsuit arose from an accident in which the plaintiff, a porter for a K-Mart store, fell into a service pit, or house trap, located within the sidewalk abutting the large retail store operated by MKC&I’s client. It was alleged that the cover for the service pit was missing and/or open, thus permitting Plaintiff to fall. Plaintiff sustained significant injuries, and sued the owners of the shopping center and the retailer for damages.
Mindy sought dismissal of the suit, contending that the accident happened on property belonging to the shopping center, and not her client – and thus, that her client owed no duty to the Plaintiff. Additionally, the retailer did not create the dangerous condition, or have actual or constructive notice of it. Plaintiffs opposed the motion, contending that issues of fact existed as to whether the defendants created the condition, or had notice of it. Discovery had revealed that the sink had been clogged on the day of the Plaintiff’s accident. Plaintiffs retained an engineer, who performed a dye trace test by pouring fluorescent dye into a sink located inside of the retail store, and then observing the dye passing into the service pit. The expert concluded that the waste water from the retail store flowed through the sewer pipe inside the service pit, and that standard industry practice would be for a plumber or maintenance person to open the service kit to inspect the flow of water or insert a snake, in the event of a blockage such as the one experienced by the retailer. Further, he opined that a layperson passing by would not have had the tools, skill or knowledge necessary to lift the 65 lb. steel cover from the frame and open the pit.
The court accepted Mindy’s argument that there was no evidence that the cover at issue was lifted by the defendants, or by any third party vendor retained by the defendants, on the date of the accident. Thus, a jury would be forced to speculate and assume negligence, without evidence of it. Accordingly, the case was dismissed.