New York Jury Verdict Reporter Jury finds plaintiff liable for

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					N E W      Y O R K

Q U E E N S        C O U N T Y

Slip and Fall — Construction — Defects
Jury finds plaintiff liable for her own fall on pothole in work area
involving several entities
Settlement         $300,000
Case Harriet Zannikos and Nicholas Zannikos v. City of New York Consolidated Edison Company of New York,
Inc., Tri-Messine Construction Company, Inc., Joseph L. Balkan, Inc., Deboe Construction Corp., and Mec
Construction Corp., No. 23892/05
Court Queens Supreme
Judge Martin E. Ritholtz
Date      6/1/2010

          Thomas S. LoBue, Ateshoglou & Aiello, New York, NY

          John V. Barbieri, Jones, Hirsch, Connors & Bull, P.C., New York, NY (Tri-Messine Construction Co.
          Kay Ming Lau, Richard W. Babinecz, New York, NY (Consolidated Edison Company of New York Inc.)
          Grant M. Meisels, Rubin, Fiorella & Friedman, LLP, New York, NY (Deboe Construction Corp.)
          Eric Murrell, Assistant Corporation Counsel, Michael A. Cardozo, Corporation Counsel, Jamaica, NY
(City of New York)
          Ian Nicol, Baron & Associates, P.C., Brooklyn, NY (Mec Construction Corp.)
          Leslie Siskind, Smith Mazure Director Wilkins Young & Yagerman P.C., New York, NY (Joseph L.
Balkan Inc.)

Facts & Allegations
On February 4, 2005, plaintiff Harriet Zannikos, 65, married, a teacher's aide was walking on the street in front of
her house in Bayside, Queens when she tripped on a depression in the asphalt. The depression resulted from a re-
paving of a portion of the street adjacent to her residence. Zannikos claimed an injury of her right leg.
Harriet Zannikos and her husband, Nicholas Zannikos, sued the City of New York, as the owner of the property on
which the incident occurred, Consolidated Edison Company of New York, Inc., who contracted work to be done in
the area, Tri-Messine Construction Company, Inc., the company which performed final restoration of all cuts in the
roadway resulting from Con Edison's subcontractors, Joseph L. Balkan, Inc., the subcontractor which installed and
repaired sewers and water connections, Deboe Construction Corp., which worked on the sewer and water main, and
Mecc Construction Corp., a utility sub-contractor for Con Edison.
Zannikos alleged that Tri-Messine was responsible for the depression in the roadway after restoring cuts made by
Mecc Construction. Zannikos argued that Con Edison assigned its subcontractors Mecc and Tri-Messine to fully
restore the trench safely in front of Zannikos' house. Zannikos further alleged that a dangerous condition resulted
due to the failure of the subcontractors to ensure the backfill was properly compacted.
DeBoe Construction and Joseph L. Balkan, Inc. were dismissed by the judge after they were not mentioned on
Zannikos' opening.
Nicholas Zannikos testified that approximately six months prior to the accident, workers came to his house and
opened a two foot by two foot trench in the area where the incident occurred. He stated that this work occurred in
the summer of 2004, approximately six to nine months prior to the incident, and that workers applied cold asphalt
and tamped it down with an instrument to finalize their work.
Harriet Zannikos testified that she did not think to avoid the dangerous condition and was looking at her husband
immediately before she fell. She also stated she wasn't looking where she was walking
Zannikos was questioned about statements provided to the emergency room physician that she had slipped on ice on
the sidewalk in front of her house. Zannikos refused to admit she made the statements, but stated that she probably
was not aware of what she was saying.
Defense counsel for Tri-Messine argued that Tri-Messine's work was approved by a Con Edison inspection,
indicating that the work was properly performed. Tri-Messine asserted that it merely provided the final two inches
of restoration asphalt to the trench, which was backfilled by co-defendant Mecc Construction. It was not the
obligation of Tri-Messine to tamp down the backfill provided by Mecc.
Tri-Messine's counsel also cited testimony by a Con Edison representative that it was not known if another
contractor or individual applied asphalt after Tri-Messine's paving was completed. The photographs submitted by
Zannikos taken immediately after the accident may be the result of work completed by another contractor.
Tri-Messine also observed in Zannikos' photographs a "cold patch" asphalt material was depicted. It was argued that
Tri-Messine does not use cold patch. Tri-Messine's counsel drew upon testimony by a Con Edison witness that the
submitted photographs could have depicted this material.
Tri-Messine's counsel provided further support that they did not apply the final material depicted in the photographs
through testimony by Alfonso Messina, Tri-Messine president. He testified that his company's final restoration work
was completed in January 2004. This time predates an event in Nicholas Zannikos' testimony that an unidentified
worker placed cold patch in the area where his wife fell approximately six to nine months before the accident.
This assertion was supported by a representative of DeBoe Construction who testified that Tri-Messine never used
temp Mac or cold patch in its final restoration on roadway projects.
Tri-Messine's counsel also noted that the accident occurred 13 months after their work was completed. Therefore,
Harriet Zannikos should have known of any potential defects as they could have been in existence for more than one
year. In citing Harriet Zannikos' own testimony, it was argued she was the sole proximate cause of her own accident
because she did not see an open and obvious condition and fell because of snow and ice.
Michael Bohrer, a professional engineer testified that he examined deposition transcripts including Con Edison work
tickets and paving orders, as well as all of the Zannikos' photographs. His opinion was that the area that was circled
in the photograph, which depicted where Zannikos fell, was most likely paved over Tri-Messine's work and final
restoration with what appeared to be "cold patch" or "temp Mac." He further stated that Tri-Messine's asphalt was
smoother than cold patch and temp Mac and applied hot with a roller. This testimony directly conflicted with Mr.
Zannikos' explanation of how the cold patch was applied to the area where his wife fell. The expert testimony
provided by Bohrer went uncontested by Zannikos' counsel as they did not provide any expert testimony in regards
to the asphalt or liability.
An employee of the Department of Traffic in the litigation department testified as to various permits taken out by the
City of New York, on the block where the accident occurred. This testimony established that the City of New York
received a complaint in 2004 regarding a pothole on the street where the accident occurred. However, it did not
establish where that pothole was located on 161st Street.
Defense counsel for the City of New York argued there was insufficient proof that the City's pothole repair took
place in front of Zannikos' home as opposed to somwhere else on the block. Under the assumption the City's work
was in front of Zannikos' residence, there was no evidence that the accident location changed after the City's work
was done in March 2004 due to work by a non-City entitiy.
New York City counsel cited that Harriet Zannikos admiited on teh stand that she did not look where she was
walking despite confriming snow and ice being on the ground and that it was snowing at the time.
City counsel also argued that the pothole and pothole repairs do not resemble the accident scene as depicted in the
photographs that were in evidence.

fracture, tibia; fracture, fibula; internal fixation; open reduction; fracture, leg
Zannikos was taken by ambulance to Booth Memorial Hospital where X-rays revealed displaced fractures of her
right tibia and fibula.
She underwent an open reduction with internal fixation. Nine months later she underwent a subsequent surgery to
remove the hardware.
Zannikos contended that following her two surgeries, she was unable to walk for more than 15 minutes without pain.
She was also experiencing ankle pain, requiring Tylenol two to three times per week.
Prior to the accident, Zannikos was able to go bowling almost every week. She also went skiing almost every
weekend during the winter. After the accident Zannikos was unable to ski or bowl.
After returning to work in May 2005, three months after the accident, Zannikos could only work half the house that
she did prior to the accident. At the time of trial she was working 2.5 hours per day. Her estimated lost wage claim
totaled $13,420.
Zannikos' medical expenses were approximately $32,000.
Zannikos sought recovery of damages for past and future pain and suffering, past and future loss of enjoyment of
life and past lost earnings.
Dr. Robert Goldstein, an orthopedist testified for Zannikos, that she had a limited range of motion and was
permanently partially disabled.
DeBoe Construction's examining physician, Dr. Orlandi, who did not testify as Deboe was let out before trial,
provided an excellent prognosis for Zannikos. He stated that she did not have a disability from any of her usual
activities and that there was no need for orthopedic treatment including physical therapy.
Dr. Allan Katzman, an orthopedist retained by Con Edison agreed with Dr. Orlandi, that Zannikos had made a full
recovery from her accident and resulting surgeries.

A jury found the City of New York; Tri-Messine and Mecc Construction to be not liable for Zannikos' injuries. The
jury also found that Con Edison was 70 percent liable and that Zannikos was 30 percent in causing her own accident.
After approximately two hours following the verdict, the entire case settled with Con Edison paying $300,000.

            Harriet Zannikos

            Nicholas Zannikos

Demand None reported

Offer None reported

         Axis Specialty Insurance Co.. for Deboe Construction
         Chartis Inc. for Mec Construction and Tri-Messine Construction

            Robert S. Goldstein, M.D., orthopedics, New York, NY (Thomas S. LoBue) (did not testify)

            Michael Bohrer, P.E., engineering, Parish, NY (John V. Barbieri)
            Allan Katzman, M.D., orthopedics, (Kay Ming Lau) (did not testify)
            Robert J. Orlandi, M.D., orthopedics, Brooklyn, NY (Grant M. Meisels) (did not testify)

None reported

Editor's Note
This report is based on information that was provided by defense counsel. Plaintiffs' counsel did not respond to the
reporter's phone calls.

            Harriet Zannikos
                     Age: 65 Years
                 Occupation: teacher's aide
                 Gender: Female
                 Married: Yes
                 Children: No
                 Children Description: injured party

        Nicholas Zannikos
                 Age: 65 Years
                 Occupation: None reported
                 Gender: Male
                 Married: Yes
                 Children: No

Written By –James Perucci


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