Decisions of Interest

Irena Luczak v. 63-108th Street Realty, A&R International Food Deli, and Rafael’s Deli Corp.

Supreme Court, Queens County, Index No. 25840/11

Plaintiff, Irena Luczak, initiated this premises liability action, claiming that she sustained serious injuries to her right shoulder and lower spine when she allegedly slipped and fell on a wet floor while attempting to exit a deli. On March 12, 2014, the jury deliberating on the issue of liability only in this matter returned a defense verdict in favor of defendants, 63-108th Street Realty and A & R International Food Deli d/b/a Rafael’s Deli Corp., represented by Malapero & Prisco LLP.

Over the course of plaintiff’s testimony under cross-examination, various inconsistencies and contradictions between her trial and deposition testimony were brought to light. Plaintiff had testified that on the day in question, there was a drizzling rain, which she claimed necessitated that the store’s owners and manager place mats on the floor to prevent slippage.  However, during cross-examination by Malapero & Prisco, she conceded that, as she had testified in deposition, there was only a fog which had caused the alleged moisture.  Furthermore, she had no trouble walking over the bare floor areas when she had entered the premises 15-35 minutes before, at which time she initially noticed the alleged wet condition near the entrance to the store. She also acknowledged statements made in her deposition testimony that indicated she had seen water only in the entrance area of the store; at trial, she claimed at least two floor areas that were wet.  Malapero & Prisco’s clients’ witness conceded that mats were in the process of being placed on the floor and had not been placed near the public entrance yet.  However, he also testified, as he had at his deposition, that it was not raining at the time of the incident and it had not rained shortly before the incident. The mats were then being put out due to the possibility of rain later in the day due to his observance that it was cloudy.

Lending particular weight to the defense’s case was plaintiff’s inability to settle on a direct cause for her fall. She testified at trial that she observed the alleged water on the floor near the store’s one public entrance as she was leaving, but she was distracted when 2-3 people opened the entrance door to the store and entered the premises.  The alleged distraction was a claim she had not made during her deposition. Of note, she also indicated on several occasions that she tripped, rather than slipped, which caused her fall.  Additionally, on one occasion she testified at trial that her right foot tripped over her left foot.

In closing arguments, Malapero & Prisco emphasized the inconsistencies and contradictions between plaintiff’s deposition and trial testimony, and her lack of credibility in view of same. The defense also stressed the comparative negligence of plaintiff and referenced her belated claim of momentary distraction due to persons coming into the store upon plaintiff’s exiting. Furthermore, Malapero & Prisco repeatedly contended that plaintiff’s testimony that she tripped over her own feet by itself warranted a verdict in favor of the defendants. The absence of credibility of plaintiff’s engineering expert, brought out during cross-examination, was also emphasized.

In his closing statement, plaintiff’s counsel argued that plaintiff’s admission of tripping over her own feet was due to a discrepancy created in the translation of her testimony from Polish to English, albeit by an official Court reporter employed by the Court system which was stressed by Malapero & Prisco.  Counsel for plaintiff emphasized his engineering expert’s testimony confirming the slippery condition of the floor, and he stressed the lack of any dispute that the mats were missing from the area in which plaintiff fell.  Plaintiff’s counsel contended that plaintiff did nothing wrong and, therefore, comparative negligence should not be attributed to her.

Despite plaintiff’s counsel’s arguments, the jury returned a verdict in favor of the defendants.