| Arrieta v Shams Waterproofing, Inc. |
| 2010 NY Slip Op 06508 [76 AD3d 495] |
| August 31, 2010 |
| Appellate Division, First Department |
| Jennifer Arrieta et al., Appellants-Respondents, et al.,Plaintiffs, v Shams Waterproofing, Inc., Respondent-Appellant, and Jerome Cluster I,LLC, et al., Respondents. |
—[*1] Jeffrey Samel & Partners, New York (David M. Samel of counsel), for respondent-appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel),for respondents.
Judgment, Supreme Court, Bronx County (Yvonne Gonzalez, J., and a jury), enteredSeptember 29, 2008, insofar as appealed from as limited by the briefs, apportioning fault 30% asagainst defendant-cross-appellant Shams Waterproofing and 35% each as against defendantsJerome Cluster and Jerome Construction, awarding plaintiff Jennifer Arrieta (Jennifer), jointlyand severally against defendants, nothing for past pain and suffering and $100,000 for futurepain and suffering for a period of one year, and awarding plaintiff Oscar Arrieta (Oscar), jointlyand severally against defendants, nothing for past pain and suffering and $13,600 for future painand suffering for a period of one year, reversed, on the law, without costs, ShamsWaterproofing's liability for noneconomic loss limited to its 30% proportionate share of fault,and the matter remanded for a new trial on the issue of damages.
The infant plaintiffs were struck by a piece of plywood dropped from a third-floor windowand sustained various injuries. Jennifer, then aged 10, suffered a displaced fracture of the rightfemur and was placed in a full leg cast from her upper thigh down to her foot for a period ofthree months. Oscar suffered a tear of the radial collateral ligament in his right elbow, as well aslacerations to his forearm and elbow, requiring him to wear a brace on his upper arm for eightmonths.
Jennifer's treating orthopedist opined that she will require substantial future surgery becausethe fracture caused the growth plate on the right femur to close with the result that her right leg istwo inches shorter than her left. The abnormal stresses on her knee, lower back, and [*2]hip will require surgical limb-lengthening, a painful processentailing two surgeries over the course of six months followed by extensive physical therapy.Oscar has continuing crepitus in his elbow and has developed arthritis, which will eventuallyrequire arthroscopic surgery.
After the court took the jury verdict, plaintiffs' attorney announced that he had a motion thathe was required to make before the jury was discharged. The court conducted a sidebar off therecord, after which it discharged the jury. Immediately thereafter, counsel went on the record tostate that his "application was to have the jury reconsider the verdict because it is, in my opinion,inconsistent . . . to award future pain and suffering and future medical expense andnot award past pain and suffering." Counsel continued, "I believe you indicated that I was notwaiving any rights and that you intended to discharge the jury in any event. But I want the recordto be clear that I did, in fact, bring this to the court's attention and did make an application thatthe verdict was inconsistent before the jury was discharged." The court then responded, "Yes,that was stated at sidebar." Defense counsel also confirmed this account of the sidebar. Judgmentwas ultimately entered on the verdict, and appellants have appealed from the judgment.
A party is required to preserve a claim that a verdict is inconsistent. In order to serve as apredicate for appeal, the issue must be raised before discharge of the jury so that the trial courtmay take corrective action to cure the inconsistency, including resubmitting the matter to thejury (Barry v Manglass, 55 NY2d 803, 806 [1981]). It is clear from the transcript of theproceedings that plaintiffs asserted the inconsistency in a timely fashion. The trial court erred infailing to consider their application and issue a ruling before discharging the jury. There was noneed for counsel to further object when the jury was discharged since the court had already madeclear, during the sidebar, that it was discharging the jury in any event.
In view of the awards of future pain and suffering to the infant plaintiffs, we perceive norational explanation for the failure to award them damages for past pain and suffering. Becausewe direct a new trial as to damages, we do not reach plaintiffs' claim that the amounts awardedare insufficient.
As to the cross appeal, we note that the liability of defendant Shams Waterproofing fornoneconomic loss, as a party responsible for 50% or less of total liability, is expressly limited toits apportioned fault (CPLR 1601). Concur—Tom, J.P., Moskowitz, Acosta andFreedman, JJ.
McGuire, J., concurs in a separate memorandum as follows: I agree with the majority that anew trial on the issue of damages is required because the verdict was inconsistent. I writeseparately to address defendant Shams' argument that because plaintiffs' posttrial cross motion toset aside the verdict as inconsistent was untimely, we should reject plaintiffs' claim that theverdict was inconsistent. In my view, the fact that the cross motion was untimely is not relevanton plaintiffs' appeal from the judgment. Although CPLR 4405 provides that a posttrial motion"shall be made . . . within fifteen days after decision, verdict or discharge of thejury," an appellant's failure to abide by this time limitation is of no consequence on an appealfrom the judgment where, as here, the appellant has timely appealed pursuant to CPLR 5513. Asplaintiffs were not required by law to raise in a posttrial motion their claim that the verdict wasinconsistent (CPLR 5501 [a] [3]; 5701 [a] [1]), it is difficult to [*3]understand how they could effectively forfeit their right to raise theclaim on appeal by raising it in an untimely posttrial motion. The timeliness of a posttrial motionis, however, both relevant and outcome determinative where the appeal is taken from an orderdenying the motion (see e.g.Rostropovich v Guerrand-Hermes, 18 AD3d 211, 212 [2005]).