On May 14, 2013, Susan Montefusco injured her ankle when she stepped into a hole in the grassy median next to the parking lot at her apartment complex in Patchogue.

Scene of the Accident – Rider Avenue Apartment Complex

She sued the owner of the premises and, following a bench trial, the defendant was found to be fully at fault. The judge then awarded plaintiff pain and suffering damages in the sum of $285,000 ($200,000 past – four and a half years, $85,000 future – 16 years).

In Montefusco v. Main Street L.I., LLC (2d Dept. 2021), the appellate court affirmed both the liability verdict and the damages award.

Here are the injury details:

  • trimalleolar fracture of ankle

  • two closed reductions in emergency room; open reduction internal fixation surgery one week later with placement of plate and screws
  • 10 days in hospital followed by three weeks inpatient at rehabilitation facility
  • some continuing pain

The defense argued that plaintiff made a full recovery with no limitations or restrictions of any kind, other than mild aches and therefore there was no basis for an award of future pain and suffering. Plaintiff, 64 years old at the time of her accident, last received treatment for her injury four years before trial when her doctor cleared her for full use of her leg. At trial, she testified that she had occasional pain and discomfort, playing with her grandchildren was painful, she is careful when climbing and walking and her ability to do household chores has been reduced.

Inside Information:

  • Plaintiff’s husband asserted a claim for loss of consortium. The judge declined to make any award to him because “he did not testify to the type of effect upon his relationship with his wife that would amount to a loss of consortium.”
  • The defendant’s insurance carrier disclaimed coverage based upon alleged misrepresentations in the application for insurance. The disclaimer was successfully challenged by defense counsel, Franklin McRoberts of Farrell Fritz, who prevailed upon an appellate court to order that coverage be afforded.
  • Plaintiff was also awarded $8,600 for unreimbursed medical expenses and $1,400 for a Medicare lien.