Perri And Leis Obtain Early Dismissal Of Claims In Construction Defect Litigation

Carl Perri and Matthew Leis, partners of the New York and New Jersey offices of Clausen Miller’s Professional Liability and Casualty Defense Practice Group, recently won summary judgment on behalf of our paving company client in a construction defect action after lengthy motion practice. This case involved the design and construction of a major New York area sports arena. Our client participated in constructing walkways leading to and from the arena. After the project was completed, plaintiff was one of many thousands of people who attended a baseball game at the arena. Plaintiff claims he slipped and fell while walking toward the arena on a sunken tree bed due to a height differential between the walkway and dirt tree bed.

Our initial investigation of this claim revealed plaintiff had filed an earlier action arising out of the same incident against the owners of the arena. The earlier action was dismissed due to plaintiff’s inability to show that the claimed condition was a defect, or if it was, that his inattention was not the sole proximate cause of his injuries. Upon learning this, we prepared a motion to dismiss plaintiff’s complaint before discovery commenced. Our motion argued that the theory of collateral estoppel warranted the dismissal of the claim against our client in light of the prior decision. Collateral estoppel precludes a party from relitigating in a subsequent action an issue clearly raised in a prior action and decided against that party, whether or not the tribunals or causes of action are the same. The court agreed with our arguments and dismissed plaintiff’s complaint against our client. In obtaining this early dismissal, our client incurred minimal fees in what would have been a lengthy and costly litigation.

Our client and its insurer were very pleased with this outcome, which emphasizes the benefits of an early investigation which may provide opportunities to bring claims to a timely, cost-effective conclusion. If you would like to learn more about casualty defense or professional malpractice defense, please feel free to e-mail Carl Perri (cperri@clausen.com) or Matthew Leis (mleis@clausen.com), or call them at 212-805-3900.