Motion Success for Mackenzie C. Monaco in Defense of Pediatric Physical Therapy Practice
By: Carter Conboy
Mackenzie C. Monaco successfully defended her client, a Saratoga-area pediatric physical therapy practice, in a personal injury action in Saratoga County Supreme Court before the Honorable Stephen A. Ferradino.
Ms. Monaco’s client, a physical therapy practice which exclusively provides services to children from birth to 21 years, was sued for personal injury by an infant plaintiff and her mother. The plaintiff alleged that the infant, age 3, was injured by the defendant’s failure to properly supervise, control, care for, and watch the infant plaintiff, and that the defendant failed to place child safety barriers on the corners in their facility. Specifically, the plaintiff claims that the infant was walking in a hallway with one of the defendant’s physical therapist when the infant tripped over the physical therapist’s right foot, causing the infant to fall into a corner of a doorway and lacerate her forehead requiring stitches.
Ms. Monaco moved the Court to dismiss the plaintiff’s Complaint arguing that the defendant was not negligent in its care of the infant. Ms. Monaco cited deposition testimony evidencing that the infant was never unsupervised or unattended and, in fact, was being given one-on-one supervision which continued in the hallway where the fall took place. Additionally, she argued that the subject property, including the hallway and the corner of the doorway were not inherently dangerous, submitting photographic evidence of an obvious contrast in color highlighting the existence and placement of the corner. Lastly, Ms. Monaco argued that the defendant was not negligent in failing to place child safety barriers on the corners in the facility. In support of this defense, Ms. Monaco produced a sworn Affidavit of an expert New York State certified building and residential inspector with more than 30 years of experience in the construction trades, who inspected the defendant’s premises and opined that it is compliant with all New York State building codes, fire codes, regulations and statutes and that no codes exist that require any covering, protector or guard for the corners on the interior of a building such as the defendant’s premises, and that there is no standard within the industry to use such devices.
In response to Ms. Monaco’s motion, the plaintiff argued that the physical therapist was not vigilant enough in her supervision and control of the infant plaintiff but admitted that the infant was not left unattended. The plaintiff argued that the physical therapist caused the injury by negligently stepping into the infant’s path and causing her to trip and fall.
Judge Ferradino, by Decision and Order, granted Ms. Monaco’s motion dismissing the plaintiff’s Complaint in its entirety, noting that the plaintiff did not demonstrate admissible evidence of an issue of fact with regard to the defendant’s alleged negligence.
Mackenzie C. Monaco is a partner and litigator at the law firm of Carter Conboy in Albany. She practices in the fields of personal and premises liability, motor vehicle accident, medical malpractice, labor law, product liability, and environmental law. She represents physicians, hospitals, nursing homes and assistant living facilities, as well as commercial retainers, contractors and private individuals. Ms. Monaco is a SuperLawyers® honored attorney and is the current Treasurer and Board of Directors member of the Capital District Trial Lawyers Association.
Carter Conboy was founded in 1920 and has law offices in Albany and Saratoga Springs, New York. The firm serves clients in upstate New York, Connecticut, Massachusetts and New Jersey. For additional information about the firm, visit www.carterconboy.com or contact the firm’s Director of Marketing, Stacy A. Smith, at 518-810-0516 or firstname.lastname@example.org.