| Gadani v Dormitory Auth. of State of N.Y. |
| 2009 NY Slip Op 06057 [64 AD3d 1098] |
| July 30, 2009 |
| Appellate Division, Third Department |
| John Gadani et al., Respondents, v Dormitory Authority of State ofNew York et al., Respondents, and DeBrino Caulking Associates, Inc., Appellant, et al.,Defendants. (And a Third-Party Action.) |
—[*1] The Baynes Law Firm, P.L.L.C., Ravena (Brendan F. Baynes of counsel), for John Gadaniand another, respondents. Burke, Scolamiero, Mortati & Hurd, L.L.P., Albany (Terese P. Burke of counsel), forDormitory Authority of the State of New York and another, respondents.
Spain, J.P. Appeal from a judgment of the Supreme Court (McDonough, J.), enteredSeptember 29, 2008 in Albany County, upon a verdict rendered in favor of plaintiffs.
Seeking to recover for personal injuries he sustained when he slipped on ice and snow [*2]outside a mixing shanty at his work site in January 2003, plaintiffJohn Gadani (hereinafter plaintiff) and his wife, derivatively, commenced this action againstlandowner Dormitory Authority of the State of New York (hereinafter DASNY), snow removalcontractor August Bohl Contracting Company (hereinafter Bohl), masonry prime contractorDeBrino Caulking Associates, Inc. (hereinafter defendant), project manager BBL ConstructionServices, LLC, and safety inspection contractor Landon & Rian Enterprises, Inc. (hereinafter L& R), alleging common-law negligence and Labor Law violations. Defendant asserted crossclaims against its codefendants, seeking indemnification or contribution in the event thatdefendant was found liable to plaintiffs.
Thereafter, DASNY, Bohl, BBL and L & R successfully moved for summary judgmentdismissing all claims and cross claims against them. Plaintiffs did not pursue an appeal of thosegrants of summary judgment, but defendant appealed the grant of summary judgment toDASNY, BBL and Bohl. In resolving the first of now three appeals to this Court in this action,we modified Supreme Court's order by reinstating defendant's cross claims against DASNY andBBL because we found that issues of fact existed as to whether they could have been foundliable to plaintiff, rendering them potentially liable to defendant for contribution and/orindemnification (43 AD3d 1218, 1221-1222 [2007]). Meanwhile, Supreme Court (Teresi, J.) haddenied defendant a stay pending appeal and held a trial against only defendant, resulting in a2007 jury verdict in favor of plaintiffs.
Defendant then appealed from the judgment entered upon the 2007 verdict. In light of ourprevious decision holding that issues of fact existed as to DASNY's and BBL's potential liability,we found that the verdict against defendant may have been impacted by the fact that it was thesole defendant placed before the jury. Accordingly, we reversed and ordered a new trial whereina jury would have the opportunity to consider and apportion fault between plaintiff, defendant,DASNY and BBL; this permitted consideration of defendant's liability to plaintiffs within thecontext of the other parties alleged to be at fault, while also giving DASNY and BBL theopportunity to argue plaintiff's comparative fault and contest the amount of damages (50 AD3d1303, 1303-1304 [2008]). Because plaintiffs did not appeal Supreme Court's grant of summaryjudgment to DASNY and BBL, plaintiffs had no independent right to directly recover fromDASNY or BBL in that second trial. Nevertheless, an analysis of any role that those partiesplayed in causing plaintiff's injuries was necessary to ascertain the validity of defendant's crossclaims for contribution and/or indemnification (id. at 1304).
Upon remittitur, Supreme Court (McDonough, J.) held another trial on the matter in whichDASNY and BBL were restored as third-party defendants. The jury found defendant to be 100%at fault and awarded plaintiffs $160,000 in noneconomic damages, plus medical expenses andlost wages. Defendant appeals from the judgment entered upon the verdict.
As an initial matter, we reject defendant's assertion that Supreme Court erred in makingDASNY and BBL third-party defendants as opposed to primary defendants. In resolvingdefendant's 2007 appeal, because plaintiffs had lost their opportunity to enforce direct claimsagainst DASNY and BBL, we reinstated only defendant's cross claims, and not plaintiffs' directclaims, against DASNY and BBL (43 AD3d at 1221-1222; see Klinger v Dudley, 41NY2d 362, 368 [1977]). On retrial, therefore, Supreme Court appropriately asked the jury toconsider first the liability of defendant to plaintiffs, and only in the event that it found defendantto be liable to proceed to consider the potential liability of third-party defendants, DASNY andBBL (see Nelson v Chelsea GCA Realty, Inc., 18 AD3d 838, 840 [2005]; Jones vNew York City Hous. [*3]Auth., 293 AD2d 371, 371-372[2002]). In this manner, the jurors could consider the potential liability of all parties but wereprevented from reaching an unenforceable verdict finding defendant not liable but assigningliability to DASNY and/or BBL (see Mowczan v Bacon, 92 NY2d 281, 285 [1998];Klinger v Dudley, 41 NY2d at 368-369; Johnson v Plotkin, 172 AD2d 88, 90[1991], lv dismissed 79 NY2d 977 [1992]).
We do find reversible error, however, in the charge given to the jury. At the close of proof,defendant requested that the jury be instructed as to DASNY's and BBL's duty under Labor Law§ 200 and, in the alternative, as to DASNY's potential liability to plaintiffs as a landowner,such that the jury could apportion the fault between defendant and said third-party defendants.Supreme Court declined on the ground that defendant did not have, and had notasserted,[FN*]any direct claims against DASNY or BBL under Labor Law § 200 or against DASNY aslandowner. Instead, the court—as to DASNY and BBL—charged the jury oncommon-law negligence, but then specifically charged that the duty to use reasonable care tomaintain a safe workplace, as codified under Labor Law § 200, "applies in this case onlyto defendant."
On the first appeal in this action, we reinstated defendant's cross claims against DASNY andBBL because, despite plaintiffs' failure to appeal, those defendants remained potentially liable todefendant for contribution and/or indemnification (43 AD3d at 1220-1222). Critically,defendant's claims of contribution and/or indemnification are premised on the theory thatDASNY and BBL contributed to plaintiff's injuries, thus the viability of defendant's third-partyclaims requires an analysis of DASNY's and BBL's liability to plaintiffs, even thoughplaintiffs cannot enforce any claim against them (see Nelson v Chelsea GCA Realty,Inc., 18 AD3d at 840). Thus, Supreme Court's focus on defendant's ability to directlyassert Labor Law or landowner claims against third-party defendants was misplaced, as thepremise of the contribution claims flows from the potential, albeit not directly enforceable,liability of DASNY and BBL to plaintiffs (see id. at 840-841).
Indeed, by failing to instruct the jury on DASNY's and BBL's duty to plaintiff, SupremeCourt effectively foreclosed the jury from fully considering the potential fault of DASNY and/orBBL in causing plaintiff's injuries. The instruction that the court gave on common-lawnegligence was insufficient to render this error harmless. " 'Because a finding of negligence mustbe based on the breach of a duty, a threshold question . . . is whether the allegedtortfeasor owed a duty of care to the injured party' " (Seymour v David W. Mapes, Inc.,22 AD3d 1012, 1013 [2005], quoting Espinal v Melville Snow Contrs., 98 NY2d 136,138 [2002]; see Strauss v Belle Realty Co., 65 NY2d 399, 402 [1985]). Although theexistence of a duty is a question of law to [*4]be determined bythe courts (see St. Andrew v O'Brien, 45 AD3d 1024, 1025 [2007], lv dismissed anddenied 10 NY3d 929 [2008]), the factfinder must be instructed on the nature and scope ofsuch duty so as to ascertain any breach thereof. As relevant here, common-law "[l]iability for aninjury caused by a dangerous or defective condition on property is generally predicated uponownership, occupancy, control or special use of the property . . . . Where none ispresent, a party cannot be held liable" (Seymour v David W. Mapes, Inc., 22 AD3d at1013 [internal quotation marks and citations omitted]). Here, the jury was never informed of anybasis upon which to find that DASNY or BBL owed plaintiff a duty to maintain the work site ina reasonably safe condition and, accordingly, it had no avenue upon which to find them liable forcontribution to defendant (see Franklin v Carpinello Oil Co., 84 AD2d 613, 613-614[1981]). If any doubt remained about the critical nature of this error, the jury's query duringdeliberations seeking a read back of "the New York State law regarding responsibility of thesafety of the workplace," which was answered by the Labor Law § 200 instructioncovering only the duty of defendant, renders it absolutely clear that the jury was forced toconsider only defendant's responsibility to provide a safe work environment.
While these errors necessitate another trial, we do not find that the interests of justice requirea third trial on all issues (cf. Troll v Schoonmaker Bros., 34 AD2d 1030, 1031 [1970];Robinson v Terminal Frgt. Transp., 2 AD2d 510, 512 [1956]). In this second trial, allparties had a full and fair opportunity to establish plaintiff's comparative fault and no error hasbeen identified on appeal with the jury's finding that plaintiff was not negligent. Likewise, noparty claims any error with respect to the amount of damages awarded plaintiffs at this trial;indeed, both defendant and plaintiffs have expressly declined to seek a new trial on the issue ofdamages. Further, no specific error has been identified in regard to the jury's conclusion thatdefendant's negligence was a proximate cause of plaintiff's injuries. Unlike the situation thatfaced this Court in the prior appeal (50 AD3d 1303, 1304 [2008], supra), DASNY andBBL fully participated in this second trial and defendant had the opportunity to present its caseagainst each of those parties as well as against plaintiffs.
Nevertheless, because the erroneous jury instructions prevented the jury from ascertainingthe percentage of liability, if any, of DASNY and/or BBL, the matter must be remitted for a newtrial solely on that issue. Accordingly, the jury verdict against defendant in favor of plaintiffswill stand. We decline to address the applicability of CPLR article 16 prior to retrial and the trialcourt's determination on that issue, if necessary.
Kane, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as found defendant DeBrinoCaulking Associates, Inc. 100% at fault; matter remitted to the Supreme Court for a new trial onthe issue of the responsibility, if any, of the Dormitory Authority of the State of New Yorkand/or BBL Construction Services, LLC to contribute and indemnify DeBrino in connection withthe verdict against it as established in the judgment; and, as so modified, affirmed.
Footnote *: It is immaterial that defendantdid not specifically plead Labor Law § 200 within its cross claim. As original parties tothe action, DASNY and BBL had been served with copies of the amended complaint, anddefendant's cross claim effectively incorporates by reference the nature of plaintiffs' claims byalleging that, to the extent defendant is "responsible, culpable and negligent as alleged in theAmended Complaint" (emphasis added), such culpability is shared by DASNY and BBL,among others.