Donald G. Derrico, Managing Partner of the Westchester and Buffalo offices and Partner, Amy J. Curley, were granted summary judgment and dismissal with prejudice in a high exposure premises accident for a national client.
Initially, Derrico was asked by the client to review and give his opinion on the liability and potential exposure for a matter which was being handled by another firm. That firm handled the matter throughout discovery and upon the completion of discovery advised the client that they faced significant liability and financial exposure based upon the fact that the plaintiff had three spinal fusion surgeries and the implantation of a spinal cord stimulator. The plaintiff did not return to work after the accident occurred. The Workmen’s Compensation lien was nearly $500,000 and the plaintiff demanded $2.5 million.
Derrico did an expedited review over three days, which included reviewing all of the deposition transcripts, expert exchanges and other pertinent material. Subsequent to his review, Derrico advised the client that based upon his review of the file he believed the matter was defensible and that a motion for summary judgment was warranted. The client pulled the file from the other firm and Derrico and his team prepared their motion for summary judgment.
The plaintiff alleged that he fell through a defective and broken pallet while performing a quality assurance inspection at a grocery distribution warehouse. The plaintiff alleged that the firm's client was negligent in causing or creating the condition, had actual or constructive notice of the condition and failed to warn or remedy the condition prior to the accident. In our motion, we argued that the record was devoid of any evidence that the pallet was in fact broken or defective prior to plaintiff stepping on it. Further, we argued that if such a condition existed, there was no evidence that defendant had actual or constructive notice of it and there was a protocol in place for inspecting the pallets.
The court cited verbatim our arguments in its decision and opined that the defense established that it maintained the warehouse in a safe condition and that it did not create or have notice of a defective condition and dismissed the matter in its entirety.