| Doviak v Lowe's Home Ctrs., Inc. |
| 2009 NY Slip Op 04792 [63 AD3d 1348] |
| June 11, 2009 |
| Appellate Division, Third Department |
| Zaytune Doviak, Individually and as Guardian ad Litem of RobertDoviak, Appellant, v Lowe's Home Centers, Inc., et al., Defendants and Third-PartyPlaintiffs,and Nicholas J. Bouras, Inc., Respondent, et al., Defendants. Six County Erectors, Inc.,Third-Party Defendant-Respondent. |
—[*1] Hodgson Russ, L.L.P., New York City (Margaret M. Cmielewski of counsel), for third-partydefendant-respondent. Milber, Makris, Plousadis & Seiden, L.L.P., Woodbury (James Plousadis of counsel), forrespondent.
Kavanagh, J. Appeals (1) from a judgment of the Supreme Court (Egan, Jr., J.), enteredDecember 31, 2007 in Ulster County, upon a verdict rendered in favor of plaintiff, (2) from anorder of said court, entered June 4, 2008 in Ulster County, which, upon reargument, amended thejudgment, [*2]and (3) from the amended judgment enteredthereon.
Robert Doviak was employed as an iron worker for third-party defendant, Six CountyErectors, Inc., which had been hired as a subcontractor to install the iron work for the roof on anewly constructed store for defendant Lowe's Home Centers, Inc. While working on this projectin November 2002, Doviak, who was 35 years old at the time, slipped on the roof and fell some22 feet to the gravel floor below, sustaining catastrophic injuries, including multiple fractures tohis skull, jaw, vertebrae, left femur and both wrists. He suffered from intercranial bleeding andunderwent numerous surgeries, including a cranioplasty. He was in a coma for 57 days and, upongaining consciousness, was transferred to a rehabilitation hospital where he remained for twomonths. As a result of the accident, Doviak sustained permanent injuries, including the total lossof his sight, partial loss of his senses of smell and taste, and a significant loss of hearing in hisright ear. He sustained irreversible brain damage, resulting in impaired mental functioning, andhas substantial facial disfigurement, as well as chronic osteomyelitis (a bone infection) in his leg.
Plaintiff, Doviak's wife and guardian ad litem, commenced this Labor Law action againstLowe's and defendant Orangeburg Holdings, Inc., the owner of the property where the store wasbeing constructed, as well as two contractors employed on the project, defendants MarchAssociates, Inc. and Tamburri Associates. Lowe's and Tamburri impleaded Six County and, afterTamburri brought a third-party action against Nicholas J. Bouras, Inc., the manufacturer of theroof decking material that was being installed on the project, plaintiff amended her complaint toname Bouras as a defendant, alleging—under a claim of products liability—that thematerials used in the construction of the building's roof were defective.
By order entered in June 2006, Supreme Court (Bradley, J.) granted summary judgment inplaintiff's favor on the Labor Law § 240 (1) claim against Lowe's, Orangeburg and MarchAssociates. A trial was subsequently conducted and the principal issues to be resolved wereplaintiff's claims based on common-law negligence and Labor Law § 241 (6), the liabilityof Bouras under a theory of products liability and the amount of damages to be awarded toplaintiff as the result of the injuries sustained by Doviak. The jury returned a verdict in favor ofBouras on the products liability claim, and found in favor of plaintiff on the remaining causes ofaction involving common-law negligence and the Labor Law § 241 (6) claim. The juryapportioned liability among the parties and awarded damages as follows: (1) past medicalexpenses: $426,178.68; (2) past economic loss: $264,237; (3) past pain and suffering: $200,000;(4) past loss of consortium for plaintiff: $10,000; (5) future medical expenses: $731,430 for 32years; (6) future economic loss: $1,219,544 for 18 years; (7) future pain and suffering: $800,000for 32 years; and (8) future loss of consortium for plaintiff: $90,000.[FN1]
In a postverdict motion, plaintiff challenged the sufficiency of the damages awarded by thejury and sought a new trial or a significant additur. Supreme Court (Egan, Jr., J.) found that thejury's award for past and future pain and suffering deviated materially from what would bereasonable compensation, vacated that portion of the verdict and ordered a new trial on damages[*3]unless defendants stipulated to increase the awards of pastpain and suffering to $1,200,000 and future pain and suffering to $2,900,000. The court deniedplaintiff's request as it applied to the other awards for damages rendered by the jury. Defendantsagreed to the awards as increased and a judgment was entered in plaintiff's favor in December2007. Plaintiff, after retaining new counsel, objected to certain provisions in the judgment andmoved to resettle it pursuant to CPLR 2221. Six County moved, by order to show cause, for anorder pursuant to CPLR 5021 (a) (3) allowing it to make payments into the court to satisfy thejudgment so as to toll the statutory interest. By order entered June 4, 2008, Supreme Courtgranted both plaintiff's and Six County's motions in part, and signed an amended judgmententered July 28, 2008. Plaintiff now appeals from the December 2007 judgment, the ordermodifying that judgment and the amended judgment.[FN2]
Plaintiff initially argues that a new trial should be ordered because Supreme Court failed toinstruct the jury that it was to award the full amount of future damages, without reduction to theirpresent value (see CPLR 4111 [f]). Given that plaintiff never asked that this instructionbe delivered to the jury, never objected to the court's failure to provide this instruction, nor raisedthis issue in an effort to obtain postverdict relief, this claim has not been preserved for ourreview (see CPLR 4110-b; Stangl v Compass Transp., 221 AD2d 909, 910[1995]; see also Peguero v 601 RealtyCorp., 58 AD3d 556, 561 [2009]; Klotz v Warick, 53 AD3d 976, 979 [2008], lv denied 11NY3d 712 [2008]; Nolan v Union Coll.Trust of Schenectady, N.Y., 51 AD3d 1253, 1258 [2008], lv denied 11 NY3d705 [2008]). In any event, no evidence has been presented that supports plaintiff's suggestionthat the jury employed such a calculation in any of its damage awards or that it engaged in anyprocess that resulted in any amount awarded being reduced to its present value (see Klotz vWarick, 53 AD3d at 979; compareCiarelli v Lynch, 22 AD3d 987, 989 [2005]).
We are also unpersuaded by plaintiff's claim that Supreme Court erred by refusing to give amissing witness charge to the jury as the result of Six County's failure to call an economist and avocational rehabilitation specialist it retained in connection with this litigation. A party isentitled to such an instruction if the opposing party has failed to call at trial a witness under itscontrol who would be " 'expected to provide noncumulative testimony' " in that party's favor on amaterial issue (Zito v City of NewYork, 49 AD3d 872, 874 [2008], quoting Jackson v County of Sullivan, 232AD2d 954, 955 [1996]). While Six County formally disclosed that it had retained an economistand a vocational rehabilitation specialist and identified them as potential witnesses to be called attrial, Six County contends, and no evidence has been presented to the contrary, that neitherwitness ever prepared a report or a narrative regarding any issue that they may have testified toat trial (see Holbrook v Pruiksma,43 AD3d 603, 605-606 [2007]). Moreover, during summation, plaintiff's counselcommented at length on the fact that the testimony given by her expert witnesses was essentiallyuncontradicted and that Six County failed to produce any expert witness to challenge thattestimony or any opinion given by these experts as to the financial impact of the injuries Doviaksustained as a result of this accident. As such, "any error in failing to give the charge washarmless" and did not deprive plaintiff of a fair trial (id. at 606).[*4]
We do agree, however, with plaintiff's contention thatcertain awards rendered by the jury, and some of those awards that were subsequently modifiedby Supreme Court, did not represent reasonable compensation for the injuries that Doviaksustained in this accident. It is well established that "[t]he assessment of damages in a personalinjury action is primarily a factual determination to be made by the jury, and is accorded greatdeference unless it 'deviates materially from what would be reasonable compensation' "(Lolik v Big V Supermarkets, 266 AD2d 759, 760 [1999], quoting CPLR 5501 [c][citations omitted]; see Beadleston vAmerican Tissue Corp., 41 AD3d 1074, 1078 [2007]; Simeon v Urrey, 278AD2d 624, 624-625 [2000]). "To successfully challenge a determination as to the amount ofdamages to be awarded, the record evidence must preponderate in favor of the moving party tosuch a degree that the verdict could not have been reached on any fair interpretation of theevidence" (Simeon v Urrey, 278 AD2d at 624 [citation omitted]; see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]). In that same vein, Supreme Court's decision onplaintiff's motion to set aside the verdict " 'is likewise to be accorded deference' " (Adams vGeorgian Motel Corp., 291 AD2d 760, 761 [2002], quoting Douglass v St. Joseph'sHosp., 246 AD2d 695, 697 [1998]).
With that exacting standard in mind, we are of the view that the damages awarded, on thefacts presented, do not represent reasonable compensation for the loss sustained by plaintiff inher personal capacity and as Doviak's guardian ad litem as a result of the injuries sustained byDoviak in this accident (see CPLR 5501 [c]; Popolizio v County of Schenectady, 62 AD3d 1181 [2009]; Villaseca v City of New York, 48AD3d 218, 219 [2008]). In particular, we find the jury's award for plaintiff's loss ofconsortium to be inadequate and not supported by any fair interpretation of the evidenceintroduced at trial. In that regard, it is essentially uncontroverted that prior to the accident,plaintiff and Doviak shared parenting responsibilities for their two young children and eachassumed different, albeit traditional, roles in the family home. That situation has been altereddramatically as a direct result of the catastrophic nature of the injuries that Doviak sustained inthis accident. Now, plaintiff has effectively been thrust into the role as the sole parent for theparties' two young children and bears total responsibility for preparing them for their dailyactivities, including getting them ready for school, transporting them to their variousextracurricular activities, and insuring that they complete their academic assignments. At thesame time, plaintiff, in addition to being employed on a full-time basis, cleans the home, caresfor her husband, feeds her family and performs all of the chores that are involved in the dailymaintenance of the family residence. There also can be no doubt that, as plaintiff aptly describedat trial, the accident has resulted in extraordinary emotional and physical demands being placedupon her and has dramatically affected and, in a very real way, altered her relationship with herhusband (see Villaseca v City of New York, 48 AD3d at 219; compare Norton v Nguyen, 49 AD3d927, 931 [2008]). These realities established that the minimum amount the jury should haveawarded plaintiff for the loss of past consortium was $110,000 and, given the permanent natureof most of her husband's injuries, the award for the future loss of consortium should have been,at a minimum, $490,000.
A review of the record leads us to a similar conclusion as to the adequacy of the award madeby the jury for future pain and suffering for Doviak. Even after it was increased by SupremeCourt to $2,900,000, it still, in our view, materially deviated from what would constitutereasonable compensation for such catastrophic injuries and the profound impact they willcontinue to have on the quality of Doviak's life (compare Villaseca v City of New York,48 AD3d at 218 [$3,000,000 for future pain and suffering, plus $2,000,000 for past pain andsuffering, for a plaintiff who lost use of one eye, rendering him virtually blind]; Fresco v 157 E. 72nd St.Condominium, 2 AD3d 326 [2003] [$1,000,000 for future pain and suffering, plus$1,000,000 for past pain and suffering, for a plaintiff who suffered an injury to one eye]; Carlv Daniels, 268 AD2d 395 [2000], lv dismissed 95 NY2d 790 [2000], lvdenied 96 NY2d 704[*5][2001] [$2,500,000 for future painand suffering, plus $2,300,000 for past pain and suffering, for a plaintiff with a comminuted legfracture who had three surgeries and faced the likelihood of future pain and surgeries]; Jonesv New York City Health & Hosps. Corp., 267 AD2d 281 [1999] [$1,080,000 for future painand suffering, plus $2,000,000 for past pain and suffering, for a plaintiff who had loss of sightand hearing]; Storms v Vargas, 256 AD2d 458 [1998] [$1,000,000 for future pain andsuffering, plus $3,000,000 for past pain and suffering, for a plaintiff who suffered serious facialinjuries, including the loss of one eye and a recurring infection]). Doviak is totally blind andmust have full-time care to adequately address his everyday needs. He requires an aide to assisthim whenever he ventures outside the home and someone to drive him where he needs to go.Being unable to see has deprived Doviak of the ability to interact with his two children andparticipate with them in activities that, as their father, he enjoyed prior to the accident. He is nolonger able to perform basic chores in or around the home, cannot partake in his favoritehobbies, such as driving and repairing automobiles and motorcycles, and is unlikely to ever beable to obtain gainful employment. The impact these injuries have had on his ability to interactwith others and enjoy a normal social life is self-evident, and his personality, as well as hisgeneral disposition by all accounts, has undergone a significant and adverse change. Because hissense of touch has been seriously compromised as a result of injuries sustained in this accident,Doviak's ability to learn Braille is severely limited. The loss he has experienced in his ability tohear, smell and taste is immeasurable, and has had a profound affect on his ability to enjoy themost basic pleasures of life. In addition, Doviak suffers constant pain in his neck, wrist andshoulder, and has recurring osteomyelitis in his leg. Based on our review of this record, we havereached the conclusion that $3,900,000 is the minimum amount that should be awarded toadequately compensate Doviak for the pain and suffering he will have to endure for theremainder of his life.
As for future health care costs, we do not agree with plaintiff that the jury was obligated toaccept the testimony of plaintiff's economist who projected these expenses to be between$2,262,489 and $8,989,337. However, in reviewing the award for these expenses, we are of theview that, given the jury's finding that Doviak had a 32-year life expectancy, $731,430 does notconstitute reasonable compensation for these costs. This figure simply fails to take into accountthe cost of home care that Doviak will constantly require, especially while plaintiff is gainfullyemployed and cannot be at the family residence. Under the circumstances, the minimum amountthat should have been awarded for the 32 years that Doviak can be expected to incur thesemedical expenses is $1,731,430.
Plaintiff also claims that the jury's award of $1,219,544 for future lost wages was notsupported by a rational view of the evidence. In this regard, plaintiff's economist projected afuture economic income and fringe benefit loss to Doviak of between $5,814,000 to $7,845,000for a period of 23.25 years. While the jury undoubtedly accepted some of the economist'sprojections as to Doviak's future economic loss, it obviously rejected his conclusions as toDoviak's work life expectancy and, instead, made a finding that Doviak would be able to work inhis capacity as an iron worker for 18 years. This finding enjoyed ample support in the record,and the jury's award for lost wages is entirely consistent with the figures submitted at trialregarding Doviak's earning capacity immediately prior to the accident.
Plaintiff also takes issue with certain aspects of Supreme Court's amended judgment. First,plaintiff argues that the court erred by allowing Six County to pay into the court the amountowed under the amended judgment so as to toll the accrual of interest while the matter is onappeal. CPLR 5021 (a) (3) allows a defendant to toll postjudgment interest by paying an amountto the court that would satisfy the judgment. While the decision to allow a defendant to pay intocourt under CPLR 5021 (a) (3) is discretionary, it can only be granted where a defendant has[*6]made "an unconditional tender of the judgment prior tomaking the motion" (Vick v Albert,50 AD3d 438, 439 [2008]; see Robertson v Spectrum Applications, 273 AD2d 846,846 [2000]; Meilak v Atlantic Cement Co., 30 AD2d 254, 256 [1968]). Here, Six Countydid not tender payment prior to making this motion, but simply inquired of plaintiff whether shewould agree to a satisfaction of the judgment and, in that regard, provided her with proposals tothat effect. This communication, made after Six County moved to satisfy the judgment, did notconstitute "[a] valid tender," which "requires not only readiness and ability to perform, but actualproduction of the thing to be delivered" (Jamaica Sav. Bank v Sutton, 42 AD2d 856, 857[1973]). Since no unconditional tender was made by Six County, its application should havebeen denied (see Vick v Albert, 50 AD3d at 439).
Finally, the amended judgment made reference to a stipulation whereby plaintiff agreed tohold defendants harmless for any liens. As there is no evidence in the record of such astipulation, and Six County does not now assert that such a stipulation ever existed, that portionof the amended judgment must be vacated.
Plaintiff's remaining contentions not specifically addressed herein are found to be withoutmerit.
Cardona, P.J., Mercure, Stein and McCarthy, JJ., concur. Ordered that the judgment, orderand amended judgment are modified, on the law and the facts, without costs, by reversing somuch thereof as (1) determined that plaintiff would hold defendants and third-party defendant,Six County Erectors, Inc., harmless for any liens, (2) granted Six County's motion to makepayments into court to satisfy the judgment, and (3) awarded plaintiff $2,900,000 for future painand suffering, $10,000 for past loss of consortium, $90,000 for future loss of consortium and$731,430 for future medical expenses; vacate the provision regarding the lien, deny Six County'smotion, and a new trial ordered on the issues of future pain and suffering, past loss ofconsortium, future loss of consortium and future medical expenses unless, within 20 days afterservice of a copy of the order herein, Six County stipulates to increase the awards for future painand suffering to $3,900,000, for past loss of consortium to $110,000, for future loss ofconsortium to $490,000 and for future medical expenses to $1,731,430, in which event thejudgment, order and amended judgment, as so modified, are affirmed.
Footnote 1: The apportionment of liabilitywas as follows: Lowe's, Orangeburg and Bouras = 0%; Tamburri and March Associates = 15%each; Six County = 50%; Doviak = 20%. In addition, Six County was obligated to indemnifyLowe's, Orangeburg, Tamburri, and March Associates, and is now the only party subject to thepayment of damages.
Footnote 2: Plaintiff had initially appealedfrom Supreme Court's order entered March 1, 2007 that partially modified the verdict. Bystipulation entered January 18, 2008, the parties agreed that plaintiff would withdraw her appealfrom that order, inasmuch as all relevant issues could be raised in the appeal from the finaljudgment entered by the court. Plaintiff does not take issue on the appeal with the jury'sassessment of liability.