| Hernandez v Ten Ten Co. |
| 2013 NY Slip Op 00033 [102 AD3d 431] |
| January 8, 2013 |
| Appellate Division, First Department |
| Daniel Hernandez et al., Respondents, v Ten TenCompany, Also Known as 1010 Company, Respondents-Appellants, and PrudentialSecurities Incorporated et al., Appellants-Respondents, et al., Defendant. The 1010Company, L.P., Sued Herein as Ten Ten Company, Also Known as 1010 Company, etal., Third-Party Plaintiffs-Respondents-Appellants, SchmergelConstruction Corp., Second Third-Party Plaintiff-Respondent-Appellant, |
Baxter Smith & Shapiro, P.C., Hicksville (Dennis S. Heffernan of counsel), forSchmergel Construction Corp., appellant-respondent/respondent-appellant. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Eileen M. Baumgartner ofcounsel), for Prudential Securities Incorporated, appellant-respondent. [*2]DeCicco, Gibbons & McNamara, P.C., NewYork (Joseph T. Gibbons of counsel), for Ten Ten Company and 1010 Company,respondents-appellants. Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman of counsel), forrespondents.
Amended judgment, Supreme Court, New York County (Louis B. York, J.), enteredJuly 13, 2011, after a jury trial, awarding plaintiffs damages, and bringing up for reviewan order, same court and Justice, entered January 6, 2010, which, to the extent appealedfrom as limited by the briefs, denied the respective motions of defendant/third-partydefendant Prudential Securities Incorporated, defendant/third-party plaintiff Ten TenCompany, and second third-party defendant Roland's Electric for judgmentnotwithstanding the verdict or a new trial on liability and damages, granted Prudential'smotion for judgment on its cross claims for common-law and contractual indemnificationagainst Roland's, denied Prudential's motion for a posttrial hearing on attorneys' fees,granted defendant/second third-party plaintiff Schmergel Construction Corp.'s motion forjudgment on its second third-party claims for common-law and contractualindemnification against Roland's, denied Ten Ten's motion for judgment on its crossclaim for common-law indemnification against Roland's and third-party claim forcontractual indemnification against Prudential, unanimously modified, on the law, to theextent of granting Ten Ten's motion, adding a decretal paragraph to the amendedjudgment awarding Prudential and Schmergel contractual and common-lawindemnification against Roland's, granting Prudential's motion for a posttrial hearing onattorneys' fees and remitting the matter to the Supreme Court for such a hearing, andotherwise affirmed, without costs. Appeal from aforesaid order, unanimously dismissed,without costs, as subsumed in the appeal from the judgment.
The amended judgment awarding damages and interest against Ten Ten, Schmergeland Prudential is valid and enforceable, even though the verdict sheet did not indicate afinding of liability against those defendants. The defendants, conceding that they wouldbe vicariously liable upon a finding of Roland's negligence (see Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 349-350 [1998]), urged the court to leave theirnames off the verdict sheet. Further, the court instructed the jury that if it found Roland'sliable, then the defendants would be liable, and those instructions were noted in theamended judgment.
Roland's failed to preserve its argument that Prudential and Schmergel hadabandoned their motions for indemnification because the proposed judgment was notsubmitted for signature within the time period set forth in 22 NYCRR 202.48 (a) (see Chang v Botsacos, 92AD3d 610 [1st Dept 2012]). In any event, the record does not support its claim.
The absence of a decretal paragraph in the amended judgment awarding Prudentialand Schmergel common-law and contractual indemnification against Roland's is merelyan irregularity that can be cured by another amended judgment (see CPLR 5019[a]). Indeed, the factual recitation in the amended judgment noted that the court hadgranted indemnification in an order that was attached to the judgment.
The evidence at trial permitted the jury to rationally conclude that a violation ofIndustrial Code (12 NYCRR) § 23-1.13 (b) (4) had proximately caused plaintiff'sinjuries (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The courtproperly gave a missing document charge regarding a missing accident report, as therewas sufficient evidence for the jury to [*3]reasonablyconclude that an accident report had been prepared (see Krin v Lenox Hill Hosp., 88 AD3d 597 [1st Dept2011]). Although the court erred in extending the charge to all the defendants, asopposed to only Ten Ten, the error was harmless.
The award for future lost earnings was sufficiently supported by the evidence, as theexpert medical testimony showed that plaintiff was physically unable to work due to hisinjuries (see generally Balbuenav IDR Realty LLC, 6 NY3d 338, 361 [2006]). The jury award of $1,000,000 forpast pain and suffering over eight years, and $2,166,666.67 for future pain and sufferingover 25.8 years, does not deviate materially from what is considered reasonablecompensation (see CPLR 5501 [c]). Indeed, the evidence showed that plaintiffhad sustained fractures to his tibia and fibula, underwent leg surgery entailing installationof a metal rod and screws in his leg, sustained back injuries, and suffered from reflexsympathetic dystrophy, complex regional pain syndrome, depression, sleep disorder, andsexual dysfunction (see Serranov 432 Park S. Realty Co., LLC, 59 AD3d 242, 243 [1st Dept 2009], lvdenied 13 NY3d 711 [2009]). Nor was the award of $341,666.66 to plaintiff's wifefor past loss of services for eight years, and $0 for future loss of services, excessive,given the evidence showing that plaintiff could no longer help care for the children,perform household chores, take his wife out, or engage in intimate relations (see Villaseca v City of NewYork, 48 AD3d 218 [1st Dept 2008]).
Prudential waived its claim for contractual indemnification against Schmergel as itfailed to appeal from the court's October 2004 order denying its motion for summaryjudgment on its claim against Schmergel, and dismissing the complaint and the thirdparty complaint.
Prudential's entitlement to contractual indemnification from Roland's arises from itscapacity as a third-party beneficiary of the contract between Schmergel and Roland's andnot, as the court found, pursuant to a nonexistent contract between Prudential andRoland's. Pursuant to the contract between Schmergel and Roland's, Prudential is entitledto attorneys' fees. With respect to Prudential's common-law indemnification claim againstRoland's, the court should have awarded attorneys' fees for Prudential's defense of themain action. Prudential, however, is not entitled to recover fees incurred in prosecutingthe common-law indemnification claim (see Chapel v Mitchell, 84 NY2d 345,348 [1994]). The matter is remanded for a hearing to determine the amount of attorneys'fees owed by Roland's.
The court should have granted Ten Ten's motion for judgment on its common-lawindemnification cross claim against Roland's. Contrary to the court's conclusion, Ten Tencould properly bring the cross claim against Roland's (see CPLR 3019 [b]; 1Michael H. Barr et al., New York Civil Practice Before Trial § 14:646 at 14-64[2011]). Ten Ten is also entitled to contractual indemnification from Prudential pursuantto the terms of the lease between the parties. Because Ten Ten's liability is vicarious, andnot based on its own negligence, General Obligations Law § 5-322.1 isinapplicable (see Linarello vCity Univ. of N.Y., 6 AD3d 192, 193-194 [1st Dept 2004]; Brown v TwoExch. Plaza Partners, 76 NY2d 172, 178-181 [1990]).
We have reviewed the remaining contentions, including the challenges to the court's[*4]various rulings during trial, and find them unavailing.Concur—Mazzarelli, J.P., Moskowitz, Richter, Abdus-Salaam and Feinman, JJ.
Motion to strike brief granted.