2/2/2011
Kirby v. Fulton Park Associates v. New JD Construction
In Kirby, plaintiff was walking along a sidewalk when he allegedly rolled his left ankle into a space between the sidewalk flag he was walking on and an adjacent chain linked fence. As a result, plaintiff sustained a trimalleolar fracture of the left ankle which required surgery. Our client, New JD General Construction, was brought into the lawsuit by the owner under a theory that our client created the condition complained of when they installed the sidewalk prior to the day of plaintiff’s accident.

At the close of discovery, Peter Lopalo moved for summary judgment arguing that our client did not create the condition compained of, since they did not design the lay out of the sidewalk in relation to the adjacent fence and was not negligent in the manner in which it installed the sidewalk. The trial court agreed and dismissed the third party complaint against New JD General Construction.