| Urbina v 26 Ct. St. Assoc., LLC |
| 2007 NY Slip Op 09669 [46 AD3d 268] |
| December 6, 2007 |
| Appellate Division, First Department |
| Carlos Urbina et al., Respondents, v 26 Court StreetAssociates, LLC, et al., Respondents-Appellants, and R & J Construction Corp.,Appellant-Respondent. |
—[*1] Carol R. Finocchio, New York City, for respondents-appellants. Arye, Lustig & Sassower, P.C., New York City (D. Carl Lustig, III of counsel), forrespondents.
Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered June 8, 2005,after a jury verdict, insofar as appealed from, awarding plaintiff Carlos Urbina $1 million for pastpain and suffering, $2.5 million for future pain and suffering (over 41.5 years), $5 million forfuture lost wages (over 27 years) and $55,000 for future medical expenses, unanimouslymodified, on the facts, to vacate the awards for past and future pain and suffering, and otherwiseaffirmed, without costs, and the matter remanded for a new trial solely as to damages for past andfuture pain and suffering unless plaintiffs, within 30 days of service of a copy of this order withnotice of entry, stipulate to reduce the award for past pain and suffering to $700,000 and futurepain and suffering to $1.5 million, and to entry of an amended judgment in accordance therewith.Judgment, same court and Justice, entered July 14, 2005, granting contractual indemnity todefendant Town Sports International, Inc. (TSI) and 26 Court Street Associates, LLC (CourtStreet) against defendant R & J Construction Corp. (R & J), and dismissing the claims of TSI andCourt Street against R & J for common-law indemnity and contribution, unanimously affirmed,with costs.
Plaintiffs Carlos Urbina and his wife, Lucy Nunez, commenced this action to recoverdamages for injuries sustained by plaintiff Urbina, an electrician, at a construction site when theplywood platform of a Baker scaffold on which he was kneeling collapsed, causing him to fallsome eight feet to the concrete floor and suffer a fractured patella and other injuries. TSI, whichleased the premises where the accident occurred from Court Street, the owner of the premises,was renovating the premises to open a New York Sports Club and acted as general contractor forthe project. Plaintiffs commenced this action against Court Street, TSI and R & J, the drywallsubcontractor, alleging causes of action for common-law negligence, violations of LaborLaw[*2]§§ 200, 240 (1) and § 241 (6) and lossof consortium. TSI asserted cross claims against R & J for contractual indemnity, common-lawindemnity and contribution; it also commenced a third-party action against plaintiff Urbina'semployer, Absolute Electrical Contracting, Inc. (Absolute), the electrical subcontractor, seeking,inter alia, contractual indemnity. Court Street asserted cross claims against TSI for contractualindemnity, common-law indemnity and contribution. R & J brought cross claims against CourtStreet, TSI and Absolute for common-law indemnity and contribution. In turn, Absolute assertedcross claims for negligence and breach of warranty against R & J.
Summary judgment was granted to plaintiff Urbina pursuant to Labor Law § 240 (1)against Court Street and TSI. On a prior appeal in this action (12 AD3d 225 [2004]), this Courtupheld the dismissal of plaintiff Urbina's Labor Law § 241 (6) claim against R & J andreinstated plaintiff Urbina's common-law negligence claim against R & J, holding, in the latterregard, that issues of fact were raised as to whether R & J was negligent in erecting the scaffold,precluding summary judgment in its favor. Nonetheless, plaintiff Urbina abandoned all hisclaims against R & J, and all his remaining claims against Court Street and TSI, and proceeded toa damages only trial. Prior to trial, Court Street and TSI each tendered its defense to Absolute,which took over their representation. In particular, Absolute's insurer appointed as counsel forCourt Street and TSI the attorney who had been representing only Absolute. Pursuant to astipulation signed on behalf of TSI by that attorney, TSI's third-party action against Absolute wasdismissed with prejudice. At trial, R & J's cross claim against Absolute was dismissed on theground that plaintiff Urbina had not sustained a "grave injury" within the meaning of Workers'Compensation Law § 11.
After plaintiffs testified, Court Street and TSI moved for a directed verdict against R & Jbased upon the indemnity clause in the contract between R & J and TSI. Although it appears thatCourt Street never asserted a cross claim against R & J for contractual indemnity, R & J did notoppose the motion on this ground. To resolve the motion, the parties submitted a "Stipulation ofAgreed Facts." According to the stipulation, the accident occurred at 2:45 p.m. after R & J'semployees had left the work site, having completed their work for that day. When the platform ofthe Baker scaffold collapsed, plaintiff Urbina was performing electrical work required underAbsolute's contract with TSI, not "dry wall/rough carpentry" work required under R & J'scontract with TSI. The Baker scaffold was owned by R & J and had been erected by R & J solelyfor its work. When R & J's employees left the job site on the day of the accident, the scaffold wasleft in place for the continuation of R & J's work the next day. As for the accident itself, thestipulation provided that plaintiff Urbina testified both that "while he was kneeling down on theplatform of the Baker scaffold, the plywood platform collapsed straight through the rails of thescaffold causing him to be injured," and that he "inspected the scaffold including the platform. . . before using it and thought it was okay." In addition, the parties stipulated thatthere was no evidence anyone had used or touched the scaffold after R & J's employees left thejob site and before the accident. Finally, as to the scaffold itself, the parties stipulated thatplaintiff Urbina did not have R & J's permission to use the scaffold, that TSI contended it wascustomary to share equipment at the job site and that R & J denied that contention.
The stipulation also set forth the indemnity provision of the contract and the relevantprovisions of exhibit B to the contract setting forth the "Scope Of Work." The indemnity clauseobligated R & J to "indemnify and hold TSI, the owner of the club and landlord, harmless from[*3]all claims, suits, liability, damages, losses, and expensesincluding reasonable attorney's fees arising out of the work performed under this contract to thefullest extent permitted by law." Under the heading "Scope Of Work," exhibit B detailed thespecific carpentry/drywall work R & J was to perform (such as, "[m]etal track studs, furringstrips, fasteners," "[a]coustical ceiling grid, hanging wires and tiles," "[d]rywall partitions,ceilings, soffits, fascias and porticos") and also required R & J to "[f]urnish and install allmaterials, equipment, personnel, tools, scaffolding, layout lines, and benchmarks."
In opposing the motion for a directed verdict, R & J argued that its contractual indemnity wastriggered only if the accident arose out of the work it was performing under its contract with TSI.Because plaintiff Urbina was injured while performing electrical work pursuant to the contractbetween Absolute and TSI for electrical work, not the drywall or carpentry work called for in itscontract with TSI, R & J contended that its contractual indemnity obligation had not beentriggered. Supreme Court disagreed. In an oral decision, Supreme Court, relying on Keena vGucci Shops (300 AD2d 82 [2002]) and Velez v Tishman Foley Partners (245 AD2d155 [1997]), ruled that R & J's contractual obligation to provide the scaffold was sufficient totrigger its indemnity obligations under the contract. We agree with Supreme Court.
R & J continues to maintain that "unless Urbina, an electrician, was injured while performingthe drywall work R & J agreed to perform, no indemnity is owed to TSI." Under this crampedreading of the indemnity clause, R & J's contractual indemnity would not be triggered if, with orwithout negligence by R & J, a wall it was erecting collapsed and injured a worker performingthe work of one of the other trades. As long as the worker struck by the collapsing wall was notperforming drywall work at the time of the injury, R & J would have no indemnity obligationunder the contract. R & J's position, moreover, ignores the express provision of the contractrequiring it to "[f]urnish and install all . . . scaffolding" and including that workwithin the "Scope Of Work" to be performed. Because the liability to plaintiff Urbina "aris[es]out of" the furnishing and installing of the Baker scaffold, it "aris[es] out of the work performedunder th[e] contract."
Our decision in Masciotta v Morse Diesel Intl. (303 AD2d 309 [2003]), is instructive.There, the plaintiff carpenter was injured when he fell from a ladder that "just kicked out" fromunder him. (Id. at 310.) Morse Diesel, the construction manager, moved for summaryjudgment on its claim for contractual indemnity from the plaintiff's employer, one of theconstruction subcontractors, pursuant to an indemnity provision that obligated the subcontractorto indemnify Morse Diesel and hold it harmless from all liability, damages, claims and actions "'of any nature whatsoever which arise out of or are connected with, or are claimed to arise out ofor be connected with: . . . [t]he use, misuse, erection, maintenance, operation orfailure of any machinery or equipment' " (303 AD2d at 310-311). Just as R & J agreed to provideall scaffolding, the subcontractor had agreed in its contract with Morse Diesel to provide allmaterials for its work (id. at 309). Although there were independent grounds under theindemnity clause to trigger the subcontractor's indemnity obligation, we held that because theplaintiff's "claim relates to use, misuse, erection, maintenance, operation or failure of a ladder. . . , the indemnification provision holds [the subcontractor] responsible to Morsefor this accident" (id. at 311).[FN1][*4]
As Supreme Court correctly recognized, R & J's positionis inconsistent with Velez v Tishman Foley Partners (supra) and Keena vGucci Shops (supra). In Velez, the plaintiff ironworker was injured when thecross bracing of a hoist tower gave way beneath him as he was climbing down the tower. Theowner and general contractor, TFP, sought contractual indemnity from Universal, which hadentered into a subcontract with it for the construction of the hoist tower. The indemnity clauseobligated Universal to indemnify TFP against " 'any and all loss, damages, injury or liability. . . however caused and of whatever nature, arising directly or indirectly from theacts or omissions of [Universal] . . . in the performance of the work under thisSubcontract' " (245 AD2d at 156). The fact that the plaintiff was performing work other than thatrequired by Universal's contract played no role in our decision. Rather, because the accidentoccurred "when the cross-bracing of the hoist tower gave way and . . . the hoisttower was being erected by Universal at the time of the plaintiff's injuries, the accident camewithin the parameters of the broadly worded contractual indemnification agreement withUniversal" (id.).
Similarly, in Keena, the plaintiff was injured when "the plank upon which he waswalking, supplied by defendant Glenn Partition as part of its contractual undertaking to providework site protection, gave way" (300 AD2d at 82). We held that Glenn's contractual indemnitywas triggered because Glenn "agreed in its subcontract . . . to indemnify. . . [the] owner, for 'all claims . . . arising in whole or in part and inany manner' from Glenn's 'acts, omissions, breach or default' in connection with 'any work'performed by Glenn pursuant to the subcontract" (id.). As the record on appeal makesclear, moreover, the plaintiff was an employee of the general contractor and was not performingthe work that Glenn was required to perform at the time he was injured.
Greco v Archdiocese of N.Y. (268 AD2d 300 [2000]) does not require a differentconclusion. In Greco, the plaintiff, an employee of the general contractor, fell when thestep of the ladder on which he was standing broke. The ladder was owned by Peeples, the HVACsubcontractor, and the owner sought summary judgment on its claim against Peeples forcontractual indemnity. We upheld the denial of summary judgment on the ground that "[t]riableissues of fact exist with respect to . . . whether plaintiff's injury arose 'out of or inconnection [*5]with' the work Peeples had subcontracted toperform" (268 AD2d at 302). Nothing in our opinion states or suggests that the provision ofladders or other equipment was included within the scope of the work Peeples was required toperform under the subcontract.
Our decision in Brown v Two Exch. Plaza Partners (146 AD2d 129 [1989],affd 76 NY2d 172 [1990]) is also distinguishable. The plaintiff in Brown wasinjured by the unexplained collapse of a scaffold erected by a subcontractor, Heydt, for the use ofall the trades involved in the construction project, pursuant to a subcontract with the generalcontractor, Fuller. An indemnity clause required Heydt to indemnify Fuller against personalinjury " 'arising out of, in connection with or as a consequence of the performance of the[subcontractor's] Work and/or any act or omission of the Subcontractor or any of itssubcontractors . . . as it relates to the scope of this Contract' " (id. at133-134). The scaffold collapsed, however, one week after it was inspected and accepted byFuller, which was to control its use and maintain it following its acceptance. Although Heydt hadmoved or straightened the scaffold some four days prior to its collapse, we rejected Fuller'scontention that the accident arose out of, was in connection with or was a consequence of Heydt'serection or straightening of the scaffold. To accept that contention, "without any showing of aparticular act or omission in the performance of such work causally related to the accident, wouldbe to make Heydt a virtual insurer of the scaffold. Heydt would be responsible for anunexplained collapse of the scaffold at a time when it had no control over its use or responsibilityfor its maintenance, and, as contemplated by its contract with Fuller, was not even present at thesite" (id. at 136). By contrast, prior to the collapse of the Baker scaffold, neither CourtStreet nor TSI had accepted, was in possession of or was responsible for maintaining thescaffold.[FN2]
The extent to which the indemnity clauses in Masciotta, Velez and Keenaare broader rather than more verbose than the indemnity clause in this case is a matter weneed not address. In any event, the indemnity provision to which R & J agreed is a broad one, asit obligates R & J to indemnify TSI and Court Street against "all claims, . . . liability[and] damages . . . arising out of the work performed under th[e] contract" andcontains no language limiting the scope of that obligation (cf. People v Young, 220AD2d 872, 874 [1995] [construing the term "arising out of" in Executive Law § 63 (3):"the term 'arising out of', in its most common sense, has been defined as originating from,incident to or having connection with" (citation omitted)], lv denied 87 NY2d 909[1995]; United States Fire Ins. Co. v New York Mar. & Gen. Ins. Co., 268 AD2d 19,21-22 [2000] ["when used in automobile exclusion clauses, the words 'arising out of the. . . use' [*6]are deemed to be broad, general,comprehensive terms ordinarily understood to mean originating from, incident to, or havingconnection with the use of the vehicle" (internal quotation marks and citations omitted)]). Forthis reason, we are not persuaded by R & J's argument that the accident did not "aris[e] out of thework" performed under the subcontract because plaintiff Urbina was not authorized by it to usethe Baker scaffold. Without deciding the issue of whether a different conclusion would beappropriate if there were evidence that R & J had taken steps to prevent the use of the scaffold byemployees of other trades or that plaintiff Urbina knew he was not authorized to use it, we notethat there was no such evidence.
On the basis of allegedly unethical conduct by counsel for Court Street and TSI, R & J alsocontends that it is entitled either to a new trial or to an order deeming Absolute and R & Jcoindemnitors of TSI with equal responsibility for satisfying plaintiff's judgment against TSI. R& J's claim of unethical conduct, however, is not preserved for review as it was not raised beforethe trial court. Moreover, to the extent R & J thus seeks an order that would affect Absoluteadversely, we note that Absolute is not a party to this appeal and that R & J, not having appealedfrom the order dismissing its claim for common-law indemnity against Absolute, has nosurviving claims against Absolute.
With respect to the issue of damages, plaintiff, who was 31 years old at the time of theaccident, sustained a comminuted, displaced transverse fracture of the patella, as well as a tear ofthe lateral meniscus. Plaintiff underwent surgery on the day of the accident and was dischargedthe following day. Plaintiff used crutches for approximately two months following the surgeryand underwent extensive physical therapy. Thereafter, a second procedure removed the surgicalhardware installed during the first operation, and the surgeon repaired plaintiff's injuredmeniscus, and performed a chondroplasty of the patella and the anterior femur of the right knee.Following the second procedure, plaintiff continued physical therapy, took pain medication, usedcrutches for at least one month, and then began wearing a heavy knee brace that he still wears.Plaintiff continued to experience pain as well as clicking and popping sounds in his right knee,and a third surgical procedure was subsequently performed. Plaintiff's expert stated that futuresurgeries will be necessary, including at least two knee replacement procedures. Plaintiff, whonow walks with a limp, is no longer able to work as an electrician and is restricted to sedentarywork, and also can no longer perform household chores. In addition, plaintiff cannot walk forlong periods of time, run, walk fast or play soccer.
Unquestionably, significant damages awards for both past and future pain and suffering arewarranted. However, the awards for such damages as provided by the jury deviate materiallyfrom reasonable compensation (see CPLR 5501 [c]). Looking to awards approved incases involving injuries similar to those sustained by plaintiff (Reed v City of New York,304 AD2d 1, 7 [2003], lv denied 100 NY2d 503 [2003]), we conclude that the awards forpast and future pain and suffering are excessive to the extent indicated above (cf. Bridges v City of New York, 18AD3d 258 [2005]; Green v City of New York, 308 AD2d 408 [2003], lvdenied 1 NY3d 505 [2004]; Alvarado v City of New York, 287 AD2d 296 [2001];Schultz v Turner Constr. Co., 278 AD2d 76 [2000]; Cruz v Manhattan & BronxSurface Tr. Operating Auth., 259 AD2d 432 [1999]; Osoria v [*7]Marlo Equities, 255 AD2d 132 [1998]; Salop v City of NewYork, 246 AD2d 305 [1998]). The award for future lost wages, however, is supported by theevidence. Concur—Mazzarelli, J.P., Saxe, Williams, Buckley and McGuire, JJ.
Footnote 1: Our decision in Torres v Morse Diesel Intl., Inc. (14AD3d 401 [2005]) is also on point. The plaintiff, an employee of a roofing subcontractor,was injured when the ladder he was working on suddenly collapsed, causing him to fall.Westmont, the general roofing contractor, had subcontracted the roofing work to plaintiff'semployer and had agreed in its contract with the owner to indemnify the owner and theconstruction manager, Morse Diesel, for all liability or injury " 'caused by, resulting from, arisingout of, or occurring in connection with the execution of the [contract] Work' " (id. at402). We held that Westmont's contractual indemnity was triggered because "the work plaintiffwas performing . . . at the time he was injured plainly constituted 'Work' requiredunder the [owner-]Westmont contract" (id. at 403). Moreover, in the course of rejectingthe contention that issues of fact regarding Morse Diesel's alleged negligence precluded thegranting of summary judgment to Morse Diesel on its claim for contractual indemnity, we notedthat "the record shows that Westmont was contractually obligated to supply the necessaryequipment for the roofing work" (id.).
Footnote 2: Negligence by either CourtStreet or TSI in connection with the collapse of the Baker scaffold would defeat its claim forcontractual indemnity (see Pardo vBialystoker Ctr. & Bikur Cholim, Inc., 10 AD3d 298, 301 [2004] [under GeneralObligations Law § 5-322.1, negligence by general contractor in connection with plaintiff'sfall from scaffold would render unenforceable the provision of the subcontract between thegeneral contractor and plaintiff's employer requiring the latter to provide full indemnificationagainst all claims caused in whole or in part by its acts or omissions]). R & J does not assert anysuch negligence by Court Street or TSI.