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When Contractor Leaves Debris Out, A Trip-and-Fall May Still Be Building's Fault

Frank Lovece in Building Operations on October 19, 2012

Park City 3 and 4, 97-37 63rd Road, Rego Park

Board May Be Liable Despite Contractor Debris
Oct. 19, 2012

OK, we exaggerate to make a point, which is: Don't be chintzy, since worn-out elements can wind up costing a co-op or condo board lots, lots more than the cost of the item itself.

A Walk in the Park

On June 2, 2009, Rita Brady fell in the lobby of 97-37 63rd Road in Rego Park, Queens, one building in the Park City 3 and 4 Apartments complex. She sued both the co-op and Phoenix Construction, Inc., a Brooklyn contractor Park City hired to do work on the building's lobby. According to Brady in her suit, she fell "upon a black rubber mat that was negligently and carelessly placed in the entranceway and lobby ... and which was raised and bunched up," causing her to crash into some two-foot-square marble slabs Phoenix was storing in the lobby and entranceway.

Park City security guard Edward Concepcion, property manager Chandra Jain and Phoenix's job-site supervisor, Slawomir Chrostowski, all testified that Park City owned the rubber mat and others, which the co-op staff placed in the lobby and vestibule area of the building when it rained or snowed. The mats weren't put there by Phoenix.

The marble slabs were, however, with Phoenix's Chrostowski confirming that, although space on the left side of the lobby had been set aside for the storage of tiles when the construction work was being performed, sometimes Phoenix ran out of space and had to use the right side of the lobby, where Brady fell. Chrostowski also confirmed there was no rope or other barrier separating the tiles from the lobby area where people walked.

Brady and Park City did actually agree on two things: that Phoenix was negligent in storing the marble tiles in the lobby entrance, and that there can be more than one substantial factor in causing an injury.

Phoenix from the Ashes

Phoenix got out of responsibility, however. In his Oct. 2 decision, Judge David Schmidt cited the case Ely v. Pierce (2003), which states that "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes." He also cited Sheehan v. City of New York, which says, "Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm."

From that he concluded that while the tiles being stored in the lobby "furnished the occasion for the accident" that "any alleged negligence in their placement did not proximately cause the accident."

So what did cause the fall? The evidence, said Schmidt, pointed to Park City for "using a worn rubber mat and allowing it to curl over the door saddle." With Phoenix Contracting thus severed from the case, it continues with Park City as the sole defendant — all for a not replacing an old mat and apparently not taping it down or otherwise securing it flat.

It may turn out, of course, that Park City prevails. And, yes, hindsight is 20/20 — but it's foresight not to have an old, curled-up mat, rug or anything else in a doorway or lobby.


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