Brooklyn Scaffold Eye Injury Judgment of $700,000 Stands After Defendant's Answer Was Struck for Discovery Defiance

On the evening of June 18, 1999, at about 7:30 p.m., a 16-year-old boy was walking under a scaffold that Safway Steel Products had assembled at 590 Patio Gardens in Brooklyn. He saw the scaffolding shake, looked up, and something struck his left eye. At the hospital he thought it might have been broken glass. Surgeons removed a small piece of metal embedded in the eye, which had permanently damaged his retina.

The family sued Safway and six other defendants in Kings County Supreme Court in April 2000. Allen L. Rothenberg and Marc Rothenberg handled the case with co-counsel Brian J. Isaac of Pollack, Pollack, Isaac & De Cicco. Over the next two years, Safway and some of the other defendants ignored formal and informal discovery demands and did not comply with a June 2001 preliminary conference order.

The court then issued a conditional order giving the defendants until July 1, 2002 to comply or have their answers stricken. Safway did not comply, and its answer was struck as of that date. That left the plaintiff's allegation, that the injury came from a dangerous and defective condition at the scaffold, unrebutted. The plaintiff later discontinued his claims against the other defendants with prejudice, and in June 2003 the court granted his motion for an inquest on damages against Safway alone.

Safway spent the next two years trying to undo the sanction. It argued it had a justifiable excuse, and the Appellate Division, Second Department, found it had offered no acceptable reason for a two-year pattern of ignoring discovery demands and court orders. It then argued the claim was fraudulent, pointing to a co-defendant's expert, who had examined the object removed from the eye in August 2002 and said it looked like an air-gun pellet. The trial court held that the sanction resulted solely from Safway's own actions or inactions, and the Second Department later found no evidence that the complaint was fraudulent. It also argued that a stay in another matter voided the conditional order, and the court rejected that too.

After the inquest, Justice Partnow entered judgment on June 10, 2005 awarding $300,000 for past pain and suffering and $750,000 for future pain and suffering, a total of $1.05 million. Safway appealed. On January 16, 2007 the Second Department reduced the awards to $200,000 for past and $500,000 for future pain and suffering and otherwise affirmed, leaving a judgment of $700,000.

Safway took the case to the New York Court of Appeals, arguing for the first time that a procedural rule on default judgments made the judgment a nullity. On April 29, 2008 the court affirmed, holding that Safway had not raised the point earlier, that the preservation requirement is not a meaningless technical barrier, and that the conditional order had become absolute when Safway missed the deadline. The court noted that nearly a decade had passed since the injury and that the claims against every co-defendant had long since been dismissed with prejudice. The vote was 5 to 2. Judge Pigott, joined by Judge Smith, dissented and would have sent the fraud question back for a hearing, while the majority noted that the plaintiff's treating physician had testified the injury could also have come from a small metal object dropping from above.