| Hernandez v Columbus Ctr., LLC |
| 2008 NY Slip Op 03976 [50 AD3d 597] |
| April 29, 2008 |
| Appellate Division, First Department |
| Robert Hernandez, Respondent-Appellant, v ColumbusCentre, LLC, et al., Appellants-Respondents. (And a Third-PartyAction.) |
—[*1] O'Dwyer & Bernstien, LLP, New York (Steven Aripotch of counsel), forrespondent-appellant.
Judgment, Supreme Court, New York County (John F. O'Donnell, J., and a jury), enteredDecember 22, 2006, awarding plaintiff, inter alia, $15,300 and $127,500 for past and future painand suffering, respectively, on a finding that defendants were liable for plaintiff's injuries underLabor Law §§ 200 and 241 (6), unanimously modified, on the law, to vacate allfindings of liability except the finding against defendant Bovis Lend Lease LMB under LaborLaw § 200, and, on the facts, to vacate the award for past pain and suffering, and a newtrial directed on the Labor Law § 241 (6) claim against defendant Columbus Centre, and anew trial directed on the damage issue, unless, in the event plaintiff prevails at the new trial onliability, both defendants stipulate, or, in the event Columbus Centre prevails at the new trial,Bovis stipulates, within 24 hours after return of the verdict, without prejudice to post-trialmotions, to increase the award for past pain and suffering to $100,000, and to entry of anamended judgment in accordance therewith, and otherwise affirmed, without costs.
The Labor Law § 200 claim against Bovis, the construction manager, was properlybefore the jury, since there was evidence that the injury arose "from the condition of the workplace created by or known to the contractor, rather than the method of plaintiff's work" (Murphy v Columbia Univ., 4 AD3d200, 202 [2004]). However, no such evidence existed as to defendant Columbus Centre, theowner, and the Labor Law § 200 claim should have been dismissed as against it.
The Labor Law § 241 (6) claim was properly before the jury to the extent it was basedon Industrial Code (12 NYCRR) § 23-1.30. Plaintiff's testimony, confirmed by hissupervisor, that lighting conditions were poor, consisting only of a street light 150 to 200 feetaway, created a triable issue of fact as to adequate lighting (see Murphy v ColumbiaUniv., 4 AD3d at 202). The remaining three Code provisions submitted to the jury aspredicates for liability were not supported by sufficient evidence. As to Industrial Code (12NYCRR) § 23-1.7 (b) (1), plaintiff did not fall from a height of 15 feet (see Dzieran v 1800 Boston Rd., LLC,25 AD3d 336, 338 [2006]) and the opening in the planks, which buckled beneath him, wasnot large enough for a person to fit through (see Messina v City of New York, 300 AD2d121, 123 [2002]). As to [*2]Industrial Code (12 NYCRR) §23-1.7 (d) and (e) (2), there was no evidence of a slippery condition or the presence of debris orscattered materials, respectively. However, since these four theories of liability were submitted inthe form of a general verdict, we cannot determine the basis on which the jury found for plaintiff,and the judgment rendered on that verdict must be reversed (see Davis v Caldwell, 54NY2d 176 [1981]). A new trial must be had to determine liability under section 241 (6)predicated on the theory of inadequate lighting against Columbus Centre alone, Bovis havingseparately been found liable under Labor Law § 200 (see Weigl v Quincy Specialties Co., 1 AD3d 132, 133 [2003]).
The jury's award for past pain and suffering was inconsistent with its award of approximatelythree years' worth of lost earnings (see generally Rivera v City of New York, 253 AD2d597, 600 [1998]; Schaefer v RCP Assoc., 232 AD2d 286 [1996]) and was against theweight of the evidence. We find that an award of $100,000 for past pain and suffering over threeyears is reasonable, considering that plaintiff sustained a partial meniscal tear that requiredsurgery, on an out-patient basis, crutches and then a cane, extensive physical therapy and painmedication.
We have considered the parties' remaining arguments for affirmative relief and find themunavailing. Concur—Tom, J.P., Mazzarelli, Andrias and Williams, JJ.