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NYC Must Face Jury Over Woman’s Fall Into Open Pit

Jan. 17, 2019, 1:58 PM

The City of New York must face the personal injury claims of a woman who fell into an uncovered pit at a construction site, a New York appeals court ruled.

The Jan. 16 decision by the New York Supreme Court Appellate Division, Second Department, reversed a summary judgment for the city, rejecting the trial court’s conclusion that the municipality was an out-of-possession landlord when Basherat Agbosasa was injured.

The city didn’t meet its burden of demonstrating it had relinquished all control over the site to its lessee, Fitmar Management LLC, the court said.

Agbosasa says she fell into the uncovered pit, which was used for excavating an underground storage tank. Fitmar’s snowplow contractor, B&R Concrete & Excavation Corp., allegedly plowed a protective metal cover off the pit in Fitmar’s parking lot.

Fitmar’s lease permitted it to operate a health club on the site, and included maintenance of the parking lot where Agbosasa fell. But New York City still retained unfettered access to the lot for inspection purposes and for special events, according to the decision.

As a result, a jury must decide whether the city relinquished complete control over the site such that it owed no duty of care to Agbosasa to remedy the defective condition, the court said.

It also rejected the city’s arguments that it had no actual or constructive notice of the defect, and that Agbosasa’s injuries were unforeseeable.

Justices William F. Mastro, Jeffrey A. Cohen, Joseph J. Maltese, and Linda Christopher participated in the decision.

Hecht, Kleeger & Damashek PC represented Agbosasa. The Law Office of Steven G. Fauth represented B&R. New York’s corporation counsel represented the city.

The case is Agbosasa v. City of New York, 2019 BL 14753, N.Y. App. Div., No. 2016-04700, 1/16/19.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; C. Reilly Larson at rlarson@bloomberglaw.com