| McDonald v 450 W. Side Partners, LLC |
| 2010 NY Slip Op 01365 [70 AD3d 490] |
| February 16, 2010 |
| Appellate Division, First Department |
| Kevin McDonald, Plaintiff, v 450 West Side Partners,LLC, et al., Defendants. Safeway Steel Products, Third-Party Plaintiff-Respondent, v All-SafeHeight Contracting Corp., Third-Party Defendant-Appellant. |
—[*1] Ahmuty Demers & McManus, Alberton (Brendan T. Fitzpatrick of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 8, 2009,awarding judgment to third-party plaintiff (Safeway) in the amount of $8.5 million, and bringingup for review an order, same court and Justice, entered July 8, 2009, which granted Safeway'smotion to set aside the jury verdict in third-party defendant's (All-Safe) favor as against theweight of the evidence and directed a verdict in favor of Safeway, unanimously reversed, on thelaw, without costs, the motion to set aside the verdict denied and the verdict reinstated. TheClerk is directed to enter judgment accordingly.
All-Safe was hired by Safeway, as a subcontractor, to construct a "sidewalk bridge" in adesignated location for a specified price. Safeway previously had been hired by the buildingowner and manager to perform such work. Safeway's June 2002 purchase order to All-Safeincluded an indemnification clause, providing that All-Safe would indemnify Safeway forpersonal injury litigation arising from its performance.
The purchase order, engineer's plans and the related invoice all reference only theconstruction of the sidewalk bridge, and make no reference to the additional construction of aneight-foot "catchall." The testimony of the parties is generally consistent, except with respect towhether the subject of the construction of the catchall was discussed as part of the job. At trial,Safeway's representative claimed that the need to construct the catchall had been discussed priorto the construction of the sidewalk bridge, and that All-Safe knew that it was part of thecontracted-for work. All-Safe's witnesses denied this, explaining that the work was done only asan accommodation to Safeway when Safeway was told by the building owner and manager toconstruct the catchall, for which All-Safe expected to be subsequently compensated. During[*2]construction of the catchall, an employee of All-Safe wasinjured.
During the resulting litigation, Safeway asserted that it was protected by the indemnificationclause, insofar as the construction of the catchall, leading to the injuries, was undertakenpursuant to the June 2002 purchase order. Subsequent to the accident, Safeway generatedanother purchase order, accompanied by engineer's drawings, for the construction of a newcatchall which All-Safe also constructed. This second purchase order, which contained noindemnification clause, provided for compensation, which All-Safe claimed also incorporatedthe labor costs associated with the construction of the first catchall. The jury returned aunanimous verdict in favor of All-Safe. The trial court set aside the verdict as against the weightof the evidence and directed a post-trial verdict in favor of Safeway.
Due deference is accorded to the jury's findings of credibility when evaluating conflictingtestimony regarding whether a contract has been validly entered (see Zere Real Estate Servs., Inc. v AdamagRealty Corp., 60 AD3d 758 [2009]) and, in reviewing the competing narrativesprovided by the witnesses, we consider whether the verdict could not be reached under any fairinterpretation of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978];Husak v 45th Ave. Hous. Co., 52AD3d 782 [2008]). Moreover, "in the absence of indications that substantial justice has notbeen done, a successful litigant is entitled to the benefits of a favorable jury verdict"(Nicastro v Park, 113 AD2d 129, 133 [1985]; see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]).
Here, we find no basis to conclude that the verdict finding that the parties did not intend, asdemonstrated by their words, writings or conduct, that the June 2002 purchase order covered theinstallation of the catchall was against the weight of the evidence. The jury was confronted withconflicting testimony on the contested issue and we find no basis to disturb its findings. Wefurther note that even if the verdict had been against the weight of the evidence, the lawfulremedy would have been to order a new trial and not enter judgment in favor of Safeway(Cohen, 45 NY2d at 498). Concur—Gonzalez, P.J., Saxe, Moskowitz,Abdus-Salaam and RomÁn, JJ.