$37.4 Million Verdict for NYU Student Paralyzed in Fall Through Illegal Fire Escape, $29 Million After Fault and High-Low Cap

On the night of November 15, 2008, Anastasia Klupchak, a 22-year-old New York University student, climbed onto the fire escape of 82 Second Avenue in Manhattan's East Village while visiting a friend's apartment. As she turned to climb back through the kitchen window, the heel of her boot caught between the slats of the platform. She fell through an unguarded opening and landed on her back about 12 feet below.

The fall fractured her spine at the T8 and T12 levels and her shoulder, and it left her paralyzed from the waist down. She uses a wheelchair and relies on an aide for daily help.

The building, owned by First East Village Associates, was a multiple dwelling that dated to 1841, and its fire escape was a wrought iron vertical ladder system. Ladders of that kind, with a 90-degree incline and no protective railings, have been prohibited on multiple dwellings since the late 1940s. The owners argued that the Multiple Dwelling Law applied only to fire escapes built after 1929, and that the older structure was exempt.

That argument was decided before trial. A Manhattan trial court held that Multiple Dwelling Law section 53 and the city's fire escape rule, 1 RCNY 15-10, applied to the fire escape as a matter of law. On April 28, 2016, the Appellate Division, First Department, affirmed in a published opinion (140 A.D.3d 8), holding that the rules requiring removal and replacement of vertical ladder fire escapes reach pre-1929 structures. Matthew Gaier and Pani Vo of Kramer, Dillof, Livingston & Moore argued the appeal for Klupchak.

The case went to a jury in New York County Supreme Court before Justice Joan A. Madden. Thomas Moore and Matthew Gaier tried it for the plaintiff, against defense counsel Peter Kopff, Mark Levi and Eric Leiter. The trial ran about four weeks, and the six-member jury deliberated for three days. On March 7, 2017, it set her total damages at about $37.4 million, including $30 million for future pain and suffering and $2 million for past pain and suffering. It found the owners 75 percent responsible and Klupchak 25 percent responsible, because she had stepped onto the fire escape landing, which reduced the net figure to about $29.4 million.

Before the verdict, the parties had signed a high-low agreement that set the floor and ceiling on what the defendants would pay. The jury's number exceeded the ceiling, so Klupchak recovered $29 million. The agreement also meant neither side could appeal.