| Lazier v Strickland Ave. Corp. |
| 2008 NY Slip Op 02968 [50 AD3d 641] |
| April 1, 2008 |
| Appellate Division, Second Department |
| James J. Lazier, Respondent, v Strickland Avenue Corp.,Defendant and Third-Party Plaintiff-Respondent, and 6085 Strickland Associates Corp.,Defendant and Third-Party Plaintiff-Respondent-Appellant. Styles Steel Erecting & SteelFabrications, Third-Party Defendant-Appellant-Respondent, et al., Third-PartyDefendant. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Matthew P. Ross,Debra A. Adler, and Kaye Scholer, LLP [Richard C. Seltzer and Maris Veidemanis] of counsel),for defendant third-party plaintiff-respondent and defendant third-partyplaintiff-respondent-appellant. Zeccola & Selinger, LLC, Goshen, N.Y. (John S. Selinger of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendant Styles SteelErecting & Steel Fabrications appeals, as limited by its brief, from (1) so much of an order of theSupreme Court, Orange County (McGuirk, J.), dated December 13, 2006, as granted that branchof the motion of the defendants third-party plaintiffs, Strickland Avenue Corp. and 6085Strickland Associates Corp. which was pursuant to CPLR 4404 to set aside so much of a juryverdict as found 6085 Strickland Associates Corp. 70% at fault in the happening of the accident,(2) so much of an [*2]order of the same court also datedDecember 13, 2006, as denied those branches of its motion which were pursuant to CPLR 4404to set aside so much of the jury verdict as found it 30% at fault in the happening of the accident,and pursuant to CPLR 3101 to strike the testimony of the expert witness of the defendantsthird-party plaintiffs, and (3) so much of an order of the same court dated January 23, 2007, asupon reargument, adhered to the determinations in the orders dated December 13, 2006, and thedefendant third-party plaintiff 6085 Strickland Associates Corp. cross-appeals from the firstorder dated December 13, 2006.
Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 [e][1]); and it is further,
Ordered that the appeals from the orders dated December 13, 2006 are dismissed, as thoseorders were superseded by the order dated January 23, 2007, and it is further,
Ordered that the order dated January 23, 2007 is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The Supreme Court properly granted that branch of the motion of the defendants third-partyplaintiffs, Strickland Avenue Corp. and 6085 Strickland Associates Corp. (hereinaftercollectively Strickland), which was pursuant to CPLR 4404 to set aside so much of a verdict asfound 6085 Strickland Associates Corp. (hereinafter 6085), the owner of the premises, 70% atfault in the happening of the subject accident. For a court to conclude, as a matter of law, that ajury's verdict is not supported by sufficient evidence, it must determine that "there is simply novalid line of reasoning and permissible inferences which could possibly lead rational [jurors] tothe conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen vHallmark Cards, 45 NY2d 493, 499 [1978]). In deciding whether the jury's verdict in favorof the plaintiff was or was not supported by sufficient evidence as a matter of law, the evidencemust be viewed in the light most favorable to the plaintiff, who must be accorded the benefit ofevery favorable inference which can reasonably be drawn (see O'Boyle v Avis Rent-A-CarSys., 78 AD2d 431 [1981]).
Where, as here, a plaintiff's injuries arise from the manner in which the work was performed,an owner may be held liable in common-law negligence and under Labor Law § 200 if ithad the authority to exercise supervision or control over the work (see Lombardi v Stout,80 NY2d 290, 295 [1992]; Capolino vJudlau Contr., Inc., 46 AD3d 733 [2007]; Aloi v Structure-Tone, Inc., 2 AD3d 375, 376 [2003]).Thus, in order to establish its entitlement to judgment as a matter of law notwithstanding theverdict in this case, 6085 was required to demonstrate that there was no valid line of reasoning bywhich the jury could have concluded that it had the authority to supervise or control the work(see Lombardi v Stout, 80 NY2d 290, 295 [1992]; Capolino v Judlau Contr., Inc., 46 AD3d 733 [2007]; Aloi v Structure-Tone, Inc., 2 AD3d375, 376 [2003]). Since the record contains no evidence that 6085 had such authority, thecourt properly granted its motion.
The Supreme Court correctly denied that branch of the motion of the third-party defendantStyles Steel Erecting & Steel Fabrications (hereinafter Styles Steel), which was to strike thetestimony of Strickland's expert. The Supreme Court has the discretion to allow an expert totestify even where the appropriate notice is not given pursuant to CPLR 3101 (d) (seeGardiner v [*3]Wertheimer, 256 AD2d 381 [1998]). Sincethere was no proof that Strickland intentionally or wilfully failed to provide disclosure, andStyles Steel was aware that Strickland intended to call such a witness, it was a provident exerciseof discretion for the trial court to allow such expert testimony (see Manes v Manes, 277AD2d 359, 361-362 [2000]).
The Supreme Court also properly denied that branch of the motion of Styles Steel which waspursuant to CPLR 4404 to set aside so much of the jury verdict as found it 30% at fault in thehappening of the accident. There was a valid line of reasoning from which the jury could haveconcluded that the plaintiff suffered a "grave injury" within the meaning of Workers'Compensation Law § 11 (seeRubeis v Aqua Club, Inc., 3 NY3d 408 [2004]). Moreover, contrary to the contention ofStyles Steel, the jury charge on this issue was not ambiguous (see generally GannonPersonnel Agency v City of New York, 55 AD2d 548, 549 [1976]).
The remaining contention of Styles Steel is without merit. Mastro, J.P., Covello, Dickersonand Eng, JJ., concur.