| Bissell v Town of Amherst |
| 2008 NY Slip Op 08792 [56 AD3d 1144] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| Peter E. Bissell et al., Respondents, v Town of Amherst, Appellantand Third-Party Plaintiff. McGonigle & Hilger Roofing Company, Third-PartyDefendant-Appellant. (Appeal No. 1.) |
—[*1] Baxter, Smith, Tassan & Shapiro, P.C., West Seneca (Sim R. Shapiro of counsel), forthird-party defendant-appellant. Collins & Maxwell, L.L.P., Buffalo (John F. Maxwell of counsel), forplaintiffs-respondents.
Appeals from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), enteredJuly 23, 2007 in a personal injury action. The judgment awarded plaintiffs a structured judgmentupon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby granting in part those parts of the post-trial motion and cross motion to set aside the verdictand for a new trial, setting aside the award of damages for past and future loss of services andsociety and past and future pain and suffering and as modified the judgment is affirmed withoutcosts, and a new trial is granted on those elements of damages only unless plaintiffs, within 20days of service of a copy of the order of this Court with notice of entry, stipulate to reduce theaward of damages for past loss of services and society to $250,000, for future loss of services andsociety to $750,000, for past pain and suffering to $3 million, and for future pain and suffering to$7 million, in which event the judgment is modified accordingly and as modified the judgment isaffirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries sustained by Peter E. Bissell (plaintiff) while he was employed bythird-party defendant, McGonigle & Hilger Roofing Company (M & H), performing roofingwork on property owned by defendant and third-party plaintiff, Town of Amherst (Town).Following [*2]a trial on liability in the main action, we affirmedan order denying the motion of the Town to set aside the jury verdict finding it liable under LaborLaw § 240 (1) (Bissell v Town ofAmherst, 32 AD3d 1287 [2006]). Thereafter, the main and third-party actions wereconsolidated. M & H moved for summary judgment dismissing the third-party complaint basedon its affirmative defense that the third-party action is barred by Workers' Compensation Law§ 11, and the Town cross-moved, pursuant to CPLR 3211 and 3212, for dismissal of thataffirmative defense. Supreme Court denied both the motion and cross motion. On an appealperfected by only M & H, we affirmed that part of the order denying its motion (Bissell v Town of Amherst, 41 AD3d1228 [2007]).
While that appeal by M & H was pending, the Town moved for summary judgment on thethird-party complaint, alleging that it is entitled to a conditional order of indemnification againstM & H because the Town did not exercise any direction, supervision or control over plaintiff.Supreme Court granted the motion and conducted a trial on damages. Following the trial, ajudgment in favor of plaintiffs was entered. In appeal No. 1, the Town and M & H appeal fromthat judgment and, in appeal No. 3, M & H appeals from a judgment directing it to indemnify theTown for, inter alia, all amounts paid by the Town to or on behalf of plaintiffs.
We conclude in appeal No. 3 that the court properly granted the Town's motion for summaryjudgment on the third-party complaint. Even assuming, arguendo, that the Town's motion wasuntimely, we conclude that the Town established good cause for the delay inasmuch as thethird-party action had not been commenced when the note of issue was filed in the main actionand the main action had originally been severed from the third-party action (see generally Brill v City of New York,2 NY3d 648, 652 [2004]). Although it would have been preferable in the interest of judicialeconomy for the Town to have sought summary judgment on the third-party complaint in its priorcross motion seeking, inter alia, summary judgment dismissing the affirmative defense based onWorkers' Compensation Law § 11, we conclude that the Town's motion "was not barred bythe rule discouraging successive summary judgment motions" inasmuch as it was the Town's firstmotion seeking summary judgment on the third-party complaint (Piazza v Frank L. Ciminelli Constr. Co.,Inc., 12 AD3d 1059, 1060 [2004]). In any event, "there was sufficient cause for [theTown's] present motion" (Welch Foods v Wilson, 277 AD2d 882, 883 [2000]).
With respect to the judgment in appeal No. 1, we reject the contention of M & H that the juryinstructions on grave injury, evaluated as a whole (see Nestorowich v Ricotta, 97 NY2d393, 400 [2002]), failed to convey the proper legal standards (see Workers'Compensation Law § 11; 1 NY PJI3d 2:275.1, at 1435-1436 [2008]; see also Tojek v Root, 34 AD3d1210, 1211 [2006]), and we conclude that plaintiff did in fact sustain a grave injury (seeWorkers' Compensation Law § 11; see e.g. Altonen v Toyota Motor Credit Corp., 32 AD3d 342,343-344 [2006]; Millard v AllianceLaundry Sys., LLC, 28 AD3d 1145, 1147 [2006]; Sexton v Cincinnati Inc., 2 AD3d 1408, 1409-1410 [2003]).Contrary to the further contention of M & H, reversal is not warranted based on allegedlyimproper statements by the Town's attorney on summation. "Any alleged errors in the summationof [the Town's] attorney, to the extent that they are preserved, are 'not so flagrant or excessivethat a new trial is warranted' " (Dombrowski v Moore, 299 AD2d 949, 951 [2002];see Young v Tops Mkts. [appeal No. 4], 283 AD2d 923, 924 [2001]).
Contrary to the Town's contention in appeal No. 1, the evidence supports an award ofdamages for loss of services and society (see generally Presler v Compson Tennis Club Assoc., 27 AD3d1096, 1097 [2006]). Plaintiff sustained a burst fracture of his L1 vertebra and a transversefracture of his L5 vertebra. As a result, the top of his spine is no longer connected by bone to thebottom of the spine. Plaintiff suffers from, inter alia, paralysis, incontinence of his bladder andbowel, and sexual dysfunction. One of plaintiff's physicians testified that, despite surgery andphysical rehabilitation, plaintiff's muscles from the knee down "are dead and gone forever." Thatphysician also testified that plaintiff "has the worst of all worlds" because, although he has [*3]no motor function below the knee, he still has some sensation andthus feels excruciating pain at all times. As a result of the injuries and the medication, plaintiff isdepressed and suffers from irritability and mood swings. Following the accident, plaintiff wifetook over all aspects of plaintiff's hygienic care, although plaintiff is now able to perform somelimited hygienic care for himself. Plaintiff wife also helps plaintiff with his physical therapyseveral times a day, including at night, and she must watch plaintiff suffer through his pain.Plaintiff is no longer able to perform most of the household services he performed before theaccident, and plaintiffs' economist testified concerning the value of the lost household services.
We agree with M & H and the Town, however, that the award of damages of $1 million and$2 million for past and future loss of services and society, respectively, and $5 million and $15million for past and future pain and suffering, respectively, deviates materially from what wouldbe reasonable compensation (see CPLR 5501 [c]). Based on the evidence presented attrial, we conclude that $250,000 for past loss of services and society and $750,000 for future lossof services and society are the maximum amounts the jury could have awarded (see Doe vState of New York, 189 AD2d 199, 204-205 [1993]; Kirschhoffer v Van Dyke, 173AD2d 7, 11 [1991]; cf. Harvey v Mazal Am. Partners, 165 AD2d 242, 247 [1991],mod on other grounds 79 NY2d 218 [1992]). We further conclude that, based on theevidence presented at trial, $3 million for approximately 5¼ years of past pain andsuffering and $7 million for 32.7 years of future pain and suffering are the maximum amounts thejury could have awarded (see Allison vErie County Indus. Dev. Agency, 35 AD3d 1159, 1160 [2006]; Ruby v Budget Rent A Car Corp., 23AD3d 257 [2005], lv denied 6 NY3d 712 [2006]). We therefore modify thejudgment in appeal No. 1 accordingly, and we grant a new trial on damages for past and futureloss of services and society and past and future pain and suffering only unless plaintiffs, within20 days of service of a copy of the order of this Court with notice of entry, stipulate to reduce theaward of damages for past loss of services and society to $250,000, for future loss of services andsociety to $750,000, for past pain and suffering to $3 million, and for future pain and suffering to$7 million, in which event the judgment is modified accordingly.
Finally, we conclude that the award of damages for future medical expenses is supported bythe evidence (see Allison, 35 AD3d at 1160). Present—Hurlbutt, J.P., Smith,Centra, Green and Pine, JJ.