| Crooks v E. Peters, LLC |
| 2013 NY Slip Op 01226 [103 AD3d 828] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Neville Crooks, Respondent, v E. Peters, LLC,Appellant, et al., Defendants. |
—[*1] Block, O'Toole & Murphy, LLP (Mischel & Horn, New York, N.Y. [Scott T. Hornand Naomi M. Taub], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant E. Peters, LLC,appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Baily-Schiffman, J.), dated January 18, 2012, as, upon a jury verdict finding thatthe negligence of the defendant E. Peters, LLC, was a substantial factor in causing injuryto the plaintiff's right ankle/foot, that the negligence of the defendant E. Peters, LLC, wasnot a substantial factor in causing injury to the plaintiff's lower back, right elbow, or leftknee, and awarding the plaintiff the sums of $2 million for past pain and suffering, $2million for past lost earnings and benefits, $1 million for past medical expenses, $0 forfuture pain and suffering, and $0 for future lost earnings and benefits, granted thosebranches of the plaintiff's motion which were pursuant to CPLR 4404 to set aside thejury verdict on the issues of causation and future damages and for a new trial on thoseissues.
Ordered that the order is modified, on the facts, by deleting the provision thereofgranting that branch of the plaintiff's motion which was pursuant to CPLR 4404 to setaside the jury verdict on the issue of causation and for a new trial on that issue, andsubstituting therefor a provision denying that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements, and thematter is remitted to the Supreme Court, Kings County, for a new trial on the issue ofpast and future damages sustained by reason of the injury to the plaintiff's rightankle/foot.
The plaintiff fell 12 feet from a ladder while working as an electrician's helper onpremises owned by the defendant E. Peters, LLC (hereinafter Peters). On a prior appeal,this Court affirmed the Supreme Court's award of summary judgment on the issue ofliability to the plaintiff on the cause of action alleging a violation of Labor Law §240 (1) (see Crooks v E. Peters,LLC, 60 AD3d 717 [2009]). Thereafter, a jury trial on the issues of causationand damages was held. The jury found that the accident was a substantial factor incausing the plaintiff's right ankle/foot injury, but was not a substantial factor in causinginjury to his lower back, right elbow, or left knee. The jury awarded the sums of $2million for past pain and suffering, $2 million for past lost earnings and benefits, and $1million for past medical expenses, but made no award for future damages.[*2]
The plaintiff moved pursuant to CPLR 4404 toset aside the verdict on the ground that it was the result of juror confusion andimpermissible compromise and contrary to the weight of the evidence. The plaintiffsought, inter alia, a new trial on the issues of causation and damages. The Supreme Courtgranted those branches of the plaintiff's motion and directed a new trial on the issues ofcausation and damages. On appeal, Peters contends that the Supreme Court erred ingranting those branches of the plaintiff's motion which were to set aside the jury verdicton the issues of causation and future damages and for a new trial on those issues.
A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict by any fair interpretation of the evidence(see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Verizon N.Y., Inc. v Orange &Rockland Utils., Inc., 100 AD3d 983 [2012]; Nicastro v Park, 113AD2d 129, 134 [1985]). "It is for the jury to make determinations as to the credibility ofthe witnesses, and great deference in this regard is accorded to the jury, which had theopportunity to see and hear the witnesses" (Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854,855 [2007]; see Lopreiato vScotti, 101 AD3d 829 [2012]).
Here, the jury's determination on the issue of causation—that the accident wasa substantial factor in causing the plaintiff's right ankle/foot injury, but was not asubstantial factor in causing injuries to his lower back, right elbow, or leftknee—was supported by a fair interpretation of the evidence and, thus, was notcontrary to the weight of the evidence. Furthermore, the record does not reflect anyconfusion on the jury's part with respect to that issue (see Martinez v Te, 75 AD3d 1, 6-7 [2010]). Accordingly,the Supreme Court erred in granting that branch of the plaintiff's motion which waspursuant to CPLR 4404 to set aside the jury verdict on the issue of causation and for anew trial on that issue.
However, contrary to Peters's contention, the Supreme Court properly determinedthat the jury verdict on the issue of future damages was the result of juror confusionand/or impermissible compromise (see Zimnoch v Bridge View Palace, LLC, 69 AD3d 928,930 [2010]). Accordingly, the court properly granted a new trial with respect to thatissue. In light of the foregoing and since the propriety of the Supreme Court's settingaside of the jury verdict on the issue of past damages is not at issue on this appeal, thematter must be remitted to the Supreme Court, Kings County, for a new trial on the issueof past and future damages sustained by reason of the injury to the plaintiff's rightankle/foot.
In light of our determination, we need not reach the parties' remaining contentions.Rivera, J.P., Hall, Roman and Miller, JJ., concur.