| Brownrigg v New York City Hous. Auth. |
| 2014 NY Slip Op 04888 [119 AD3d 504] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Richard Brownrigg,Respondent-Appellant, v New York City Housing Authority,Appellant-Respondent. |
Edward Garfinkel, Brooklyn, N.Y. (McGaw Alventosa & Zajac [James K.O'Sullivan and Dawn C. Desimone], of counsel), for appellant-respondent.
Bisogno & Meyerson, LLP, Brooklyn, N.Y. (Elizabeth Mark Meyerson ofcounsel), for respondent-appellant.
In an action to recover damages for personal injuries, (1) the defendant appeals froma judgment of the Supreme Court, Kings County (Silber, J.), entered July 10, 2012,which, upon a jury verdict on the issue of liability finding that the defendant violatedLabor Law §§ 200 and 241 (6), upon an order of the same court datedJanuary 12, 2012, denying its motion pursuant to CPLR 4404 (a) to set aside the verdictand for judgment as a matter of law dismissing the complaint or, in the alternative, to setaside the verdict as contrary to the weight of the evidence, and upon a jury verdict on theissue of damages awarding the plaintiff the principal sum of $660,000, is in favor of theplaintiff and against it in the principal sum of $655,458.59, representing the net presentvalue of the award, plus prejudgment interest in the amount of $218,824.10 from March5, 2004, calculated at the rate of 4% per annum, and costs and disbursements in theamount of $1,360, for a total award of $875,642.69, and the plaintiff cross-appeals fromso much of the same judgment as, in effect, is in favor of the defendant and against himdismissing the cause of action alleging a violation of Labor Law § 241-a,and (2) the defendant appeals from an order of the same court dated September 27, 2012,which denied its motion to modify the judgment so as to award the plaintiff prejudgmentinterest only from May 24, 2011.
Ordered that the cross appeal from the judgment and the appeal from the order datedSeptember 27, 2012, are dismissed as academic in light of our determination on theappeal from the judgment; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding prejudgment interest to the plaintiff at the rate of 4% per annum from March 5,2004, and substituting therefor a provision awarding prejudgment interest to the plaintiffat the rate of 4% per annum from May 24, 2011; as so modified, the judgment isaffirmed, and the matter is remitted to the Supreme Court, Kings County, for therecalculation of prejudgment interest in accordance herewith, and the entry of anappropriate amended judgment thereafter; and it is further,
[*2] Ordered that one bill of costs is awarded to theplaintiff.
This is the third time that this case has come before this Court. On the first appeal bythe defendant, New York City Housing Authority, this Court reversed a judgmententered upon a decision of the trial court (Douglas, J.), made on the eve of trial,concluding that the plaintiff was entitled to summary judgment on the issue of liability onthe cause of action alleging a violation of Labor Law § 241-a, and upon ajury verdict on the issue of damages. This Court, however, affirmed the jury's findings offact on the issue of damages, and remitted the matter to the Supreme Court, KingsCounty, for a trial on the issue of liability (see Brownrigg v New York City Hous. Auth., 29 AD3d721 [2006]). On the second appeal, this Court reversed a judgment entered upon adecision of the trial court (Vaughan, J.), made during that trial on the issue of liability,concluding that a verdict should be directed in favor of the plaintiff on the cause ofaction alleging a violation of Labor Law § 241-a (see Brownrigg v New York CityHous. Auth., 70 AD3d 619 [2010]). The case now comes before us on thedefendant's appeal from a judgment, entered upon a jury verdict at the third trial, whichwas on the issue of liability only, finding that the defendant violated Labor Law§§ 200 and 241 (6), as well as upon the existing jury verdict on theissue of damages.
The plaintiff and his coworker, both elevator mechanics, were repairing one of twoelevators sharing a common shaftway in a building, while the other elevator remained inoperation. Upon returning to the elevators after making a telephone call, the plaintiffsummoned the operational elevator, stepped part of the way into it, looked up into theshaftway, and called out to his coworker, who was on top of the cab of the elevator beingrepaired, to ask on which floor the coworker was working. As the coworker turned toanswer, he knocked a tool off the top of that elevator's cab and the tool fell, injuring theplaintiff's right eye. The plaintiff commenced this personal injury action against thedefendant, the owner of the building, alleging, inter alia, violations of Labor Law§§ 200, 241 (6) and 241-a.
At the third trial, which was conducted on the issue of liability only, the plaintiffproceeded primarily on the theory that the defendant's failure to install a vertical barrierbetween the two elevators sharing the shaftway in which he was working constitutedviolations of Labor Law §§ 200 and 241 (6), and that those violationsproximately caused his injury. All witnesses who could recall the appearance andcondition of the shaftway agreed that there was no vertical barrier in place at the time ofthe accident. On May 24, 2011, the jury rendered a verdict on the issue of liability,finding that the defendant violated Labor Law §§ 200 and 241 (6). Inan order dated January 12, 2012, the Supreme Court denied the defendant's motionpursuant to CPLR 4404 (a) to set aside the verdict and for judgment as a matter of lawdismissing the complaint or, in the alternative, to set aside the verdict as contrary to theweight of the evidence and for a new trial. The Supreme Court thereafter enteredjudgment in favor of the plaintiff which, among other things, awarded the plaintiffprejudgment interest from March 5, 2004, the date of the jury verdict on the issue ofdamages.
To be held liable pursuant to Labor Law § 200 in a case such as this,where the claim arises out of the methods or means of the work, a defendant must havehad authority to supervise or control the work (see Gallagher v Resnick, 107 AD3d 942, 945 [2013]; Szczepanski v Dandrea Constr.Corp., 90 AD3d 642, 644 [2011]; Rodriguez v Gany, 82 AD3d 863, 865 [2011]; Rojas v Schwartz, 74 AD3d1046, 1046-1047 [2010]; Ortega v Puccia, 57 AD3d 54, 61 [2008]). Thus, on thatbranch of its motion pursuant to CPLR 4404 (a) which was to set aside the verdict andfor judgment as a matter of law dismissing the cause of action alleging a violation ofLabor Law § 200, the defendant was required to demonstrate that there wasno valid line of reasoning by which the jury could have concluded that it had theauthority to supervise or control the work (see Lombardi v Stout, 80 NY2d 290,295 [1992]; Lazier v StricklandAve. Corp., 50 AD3d 641, 642 [2008]; Capolino v Judlau Contr., Inc., 46 AD3d 733 [2007]; Aloi v Structure-Tone, Inc., 2AD3d 375, 376 [2003]). Contrary to the defendant's contention, the verdict findingthat the defendant violated Labor Law § 200, reflecting the jury'sdetermination that the defendant had the authority to supervise or control the work, wassupported by a valid line of reasoning. In addition, on that branch of its motion pursuantto CPLR 4404 (a) which was to set aside the verdict as contrary to the weight of theevidence and for a new trial on the issue of liability in connection with the cause ofaction alleging a violation of Labor Law § 200, the defendant was requiredto show that the evidence so preponderated in its favor that the verdict could not havebeen reached on any fair interpretation [*3]of theevidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). Contraryto the defendant's contention, a fair interpretation of the evidence supported the jury'sfinding that the defendant had the authority to supervise or control the work.
Labor Law § 241 (6) "imposes a nondelegable duty ofreasonable care upon owners and contractors 'to provide reasonable and adequateprotection and safety' to persons employed in, or lawfully frequenting, all areas in whichconstruction, excavation or demolition work is being performed" (Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 348 [1998], quoting Labor Law§ 241 [6]). Section 23-2.5 (b) (3) of the Industrial Code requires that"[w]here any elevator is being installed, repaired or replaced and persons are working inthe shaft, a solid or wire mesh partition shall be provided where necessary to preventsuch persons from contacting any adjacent operable elevator or counterweight" (12NYCRR 23-2.5 [b] [3]). "The Industrial Code should be sensibly interpreted and appliedto effectuate its purpose of protecting construction laborers against hazards in theworkplace" (St. Louis v Townof N. Elba, 16 NY3d 411, 416 [2011]). It is undisputed that no solid or wiremesh was provided in this instance, and that, had such mesh been provided, the plaintiffwould have been protected from the hazard presented by tools falling down the elevatorshaft. Consequently, contrary to the defendant's contentions, both a valid line ofreasoning and a fair interpretation of the evidence supported the jury's finding that thedefendant violated Labor Law § 241 (6).
Accordingly, the Supreme Court properly denied the defendants' motion pursuant toCPLR 4404 (a) to set aside the verdict and for judgment as a matter of law or, in thealternative, to set aside the verdict as contrary to the weight of the evidence and for a newtrial.
The Supreme Court, erred, however, in computing prejudgment interest from March5, 2004, the date of the jury verdict on the issue of damages, because liability was notestablished at that time (see Love v State of New York, 78 NY2d 540, 544[1991]). As set forth by the defendant in its proposed counterjudgment, the SupremeCourt should have computed the prejudgment interest from May 24, 2011, the date thatliability was determined by the jury (see id.; see also Grobman v Chernoff, 15 NY3d 525, 528-529[2010]).
The defendant's remaining contention is without merit.
In light of our determination, we do not reach the plaintiff's contentions, raised on hiscross appeal from the judgment, concerning the dismissal of the cause of action alleginga violation of Labor Law § 241-a. Rivera, J.P., Sgroi, Hinds-Radix andMaltese, JJ., concur.