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Negligent Repair and/or Maintenance — Premises Liability — Dangerous Condition — Premises Liability — Apartment Building

Shoddy repair of leak led to mold, building's tenant claimed

Mediated Settlement $95,000

Case Lily Insogna v. Sixty Sutton Corp., David Wirtz & Joann Brancato / David Wirtz & Joann Brancato v. Daniel Higgins, George Kajdacsi, The Black & Decker Corporation & Price Pfister, Inc., No. 123430/02; 590570/03

Court New York Supreme

Judge None reported

Neutral(s) Milton Mollen

Date 11/8/2005

Plaintiff

Attorney(s)

Charles M. Mirotznik, New York, NY

Defense

Attorney(s)

Michael L. Boulhosa, Wilson, Elser, Moskowitz, Edelman & Dicker L.L.P., New York, NY (George Kajdacsi)

Robert A. Calinoff, Calinoff & Katz LLP, New York, NY (Black & Decker Corp., Price Pfister Inc.)

Patricia A. Murphy, Conway, Farrell, Curtin & Kelly P.C., New York, NY (David Wirtz, Joann Brancato)

Howard Snyder, Smith, Mazure, Director, Wilkins, Young, Yagerman & Tarallo, New York, NY (Sixty Sutton Corp.)

Steven L. Sonkin, Marshall, Conway & Wright, New York, NY (Daniel Higgins)

Facts & Allegations

In early July 2002, plaintiff Lily Insogna, a finance and real estate worker in her 60s, noticed a water leak in the bedroom of her apartment, which was located at 60 Sutton Place South, in Manhattan. She notified the apartment building's manager, and notices were sent to the shareholders who lived above Insogna, David Wirtz and Joann Brancato.

On July 25, 2002, Insogna's ceiling broke open, and water started leaking out of it. The building's co-op corporation, Sixty Sutton Corp., attempted to fix the leak--without the assistance of a professional plumber--by breaking the ceiling open and covering it in plastic. Subsequently, the water filled the plastic and broke through into the apartment. When taping the plastic did not cease the leak, the Sixty Sutton plastered and painted the wall.

On Aug. 8, 2002, a plumber was called to repair the leak in the bathroom of Wirtz and Brancato's apartment. However, a week later, it began to leak again.

Insogna sued Sixty Sutton, Brancato and Wertz. She alleged that the defendants were negligent in the maintenance of the building and that their negligence created a dangerous condition.

Brancato and Wirtz commenced a third-party suit against contractors who performed renovations, Daniel Higgins, The Black & Decker Corp. and Price Pfister Inc., and a plumber who performed renovations, George Kajdacsi. The direct defendants alleged that the third-party defendants were negligent in their renovation of Insogna's bathroom.

Plaintiff's counsel claimed that Sixty Sutton failed to properly approve, authorize, supervise, oversee and inspect the plumbing and renovations that were undertaken by Wirtz and Brancato. He also claimed that the manager failed to ensure that the shareholders had bonded the contractor and plumbing repairs, failed to immediately remediate the water leaks caused by the plumbing and contractor repairs, and failed to notify Insogna of the water leak and its resultant damages.

Plaintiff's counsel further claimed that Sixty Sutton did not take Insogna's numerous oral and written complaints to the superintendent and the co-op president, thus failing to timely determine the source of the moisture and leak, and that it subsequently failed to hire professionals to ensure property protection.

Injuries/Damages

asthma; bronchitis; sinusitis; emotional distress; headaches

Insogna claimed that the water leak caused mold, fungi and bacteria to form in her apartment. Tests revealed that toxic mold and bacteria were found on the penetration through the concrete surfaces, in the bedroom soffit. Significantly elevated levels of fungi were also found on the wood boards that formed the frame for plumbing features in Wirtz and Brancato's apartment.

Insogna claimed that the exposure to these conditions caused her numerous health injuries, including asthma and bronchitis. She contended that she had never showed previous signs or symptoms of either condition.

In July 2002, Insogna began complaining of shortness of breathe, coughing, heaviness in the chest, nausea, fatigue, and aches and pains throughout her body. On Aug. 13, 2002, she left her apartment for a six-month period, after her symptoms had not improved. Insogna claimed that her dog also became sick and was seen by a veterinarian.

On Nov. 24, 2002, Insogna treated with pulmonologist Dr. Edward Eden. Tests revealed upper-lung-field lucency, a condition found in asthma. After several attempts to return to her apartment, Eden advised Insogna not to return while her bronchial sensitivity remained.

Insogna's expert otolaryngologist opined that after Insogna moved out of her apartment, she began to feel better. However, her symptoms did not completely disappear. She still experienced laryngopharyngeal reflux, nasal congestion, a heavy post-nasal drip, hoarseness and a lot of throat clearing. The expert contended that these symptoms were secondary to mold exposure.

Insogna's expert allergist determined that Insogna suffered asthma, laryngopharyngeal reflux, and chronic sinusitis, with infected Tornwaldt's cysts of the adenoid. The expert also noted that Insogna had right-sided circumferential inflammatory disease of the right maxillary sinus, with overflow obstruction. She also suffers posterior ethmoid disease on the right side, persistent pressure and headaches, so the allergist recommended a consultation with an ear, nose and throat surgeon.

Insogna claimed that her permanent injuries include acute bronchitis, asthma, acute sinusitis, chest congestion and light-headedness. She further claimed that she suffered emotional distress as a result of the deficits, medications, health problems, remediation and change in living conditions.

Insogna contended that her symptoms and diseases severely affected her earning ability. In 2000, her gross earnings were $253,031.03, and in 2001, her earnings were $184,747,50. A year later, she earned only $28,711.

Insogna sought recovery of $36,066.92 for expenses to repair her apartment, $11,406.34 for expenses in vacating her apartment, $702,023.72 for her past and future medical expenses, and unspecified damages for her past and future lost earnings and her past and future pain and suffering.

Result

The parties agreed to a $95,000 settlement, which was established via the guidance of JAMS mediator Milton Mollen. Sixty Sutton's insurer agreed to contribute $25,000; the insurer of Wirtz and Brancato agreed to contribute $22,500; Higgins' insurer agreed to contribute $22,500; Kajdacsi's insurer agreed to contribute $22,500; and the insurer of Black and Decker and Price Pfister agreed to contribute $2,500.

Plaintiff(s)

Lily Insogna

Demand None reported

Offer None reported

Insurer(s)

Admiral Indemnity Co. for Sixty Sutton

Cambridge Integrated Services Group for Black & Decker and Price Pfister

Fire & Casualty Insurance Company of Connecticut for Brancato and Wirtz

State Farm Insurance Cos. for Higgins

The Hartford Insurance Group for Kajdacsi

Plaintiff

Expert(s)

Michael Chandler, allergy/asthma/immunology, New York, NY (Charles M. Mirotznik)

Edward Eden, pulmonology, New York, NY (Charles M. Mirotznik)

Scott Gold, otolaryngology, New York, NY (Charles M. Mirotznik) (New York Otolaryngology Group, PC)

Glenn S. Hammer, immunobiology, New York, NY (Charles M. Mirotznik)

Raymond S. Keller, internal medicine, New York, NY (Charles M. Mirotznik)

Myles Schnitman, allergy/asthma/immunology, (Charles M. Mirotznik)

Defense

Expert(s)

None reported

Post-Trial

None reported

Editor's Note

Counsel for Black and Decker and Price Pfister did not respond to a faxed draft of this report and a phone call.

Plaintiff(s)

Demographics

Lily Insogna
Age: None reported
Occupation: None reported
Gender: Female
Married: No
Children: Yes
Children Description: None reported

By Jacqueline Linger