| Kumar v PI Assoc., LLC |
| 2015 NY Slip Op 00849 [125 AD3d 609] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Bhanmattie Rajkumar Kumar, Respondent, v PIAssociates, LLC, Appellant, and Pretty Girl, Respondent, et al.,Defendant. |
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Sean M.Prendergast of counsel), for appellant.
Chopra & Nocerino, LLP (Arnold E. DiJoseph, P.C., New York, N.Y., ofcounsel), for plaintiff-respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger (Gannon,Rosenfarb, Balletti & Drossman, New York, N.Y. [Lisa L. Gokhulsingh], ofcounsel), for defendant-respondent.
Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for defendantCapital One Bank.
In an action to recover damages for personal injuries, the defendant PI Associates,LLC, appeals (1), by permission, as limited by its brief, from so much of an order of theSupreme Court, Queens County (Greco, Jr., J.), entered February 20, 2014, as denied itsmotion to set aside the jury verdict on the issue of liability as inconsistent and for a newtrial, and (2) from an order of the same court entered June 5, 2014, which denied itsmotion pursuant to CPLR 4404 (a) for judgment as a matter of law on its cross claimagainst Pretty Girl for contractual indemnification, granted the cross motion of thedefendant Pretty Girl, in effect, pursuant to CPLR 4404 (a) to set aside the jury verdict infavor of the plaintiff and against it on the issue of liability and for judgment as a matterof law dismissing the complaint and all cross claims insofar as asserted against it, and,sua sponte, directed that the defendant PI Associates, LLC, was 90% at fault in thehappening of the accident.
Ordered that the order entered February 20, 2014, is reversed insofar as appealedfrom, on the law, and the matter is remitted to the Supreme Court, Queens County, for anew trial on the issue of liability; and it is further,
Ordered that the appeal from so much of the order entered June 5, 2014, as grantedthat branch of the cross motion of the defendant Pretty Girl which was for judgment as amatter of law dismissing the complaint insofar as asserted against it is dismissed, as thedefendant [*2]PI Associates, LLC, is not aggrieved bythat portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144 [2010]); and it isfurther,
Ordered that the appeal from so much of the order entered June 5, 2014, as, suasponte, directed that the defendant PI Associates, LLC, is 90% at fault is dismissed; andit is further,
Ordered that the order entered June 5, 2014, is reversed insofar as reviewed, on thelaw, the cross claims of the defendant PI Associates, LLC, are converted into third-partycauses of action, the motion of the defendant PI Associates, LLC, for judgment as amatter of law on its third-party cause of action against Pretty Girl for contractualindemnification is granted, and that branch of the cross motion of the defendant PrettyGirl, which was for judgment as a matter of law dismissing all cross claims is denied; andit is further,
Ordered that one bill of costs is awarded to the defendant PI Associates, LLC,payable by the plaintiff and the defendant Pretty Girl.
On November 19, 2011, the plaintiff was walking along a sidewalk in front ofcertain premises located on Roosevelt Avenue in Flushing, when she tripped over achipped portion of the sidewalk and fell. The plaintiff commenced this action to recoverdamages for personal injuries. The defendant PI Associates, LLC (hereinafter PI), ownedthe subject premises. The defective condition on the sidewalk was located in front of, oradjacent to, a first-floor store that the defendant Pretty Girl leased from PI.
After a trial on the issue of liability, the jury returned a verdict finding that while PI,Pretty Girl, and the plaintiff were negligent, only Pretty Girl's negligence was asubstantial factor in causing the accident. The jury found that Pretty Girl was 80% atfault for the accident and that the plaintiff and PI were each 10% at fault.
After an off-the-record bench conference, the Supreme Court discharged the jury.The plaintiff moved to set aside the jury verdict as inconsistent and for a directed verdictfinding that PI's negligence was a substantial factor in causing the accident. PI, too,moved to set aside the verdict as inconsistent and for a directed verdict finding that PIwas 0% at fault for the accident. The court set aside the verdict and issued a directedverdict finding that the plaintiff's and PI's negligence were substantial factors in causingthe accident. This was improper.
"When a jury's verdict is internally inconsistent, the trial court must direct eitherreconsideration by the jury or a new trial" (Kelly v Greitzer, 83 AD3d 901, 902 [2011] [internalquotation marks omitted]; see CPLR 4111 [c]; Marine Midland Bank v RussoProduce Co., 50 NY2d 31, 40 [1980]; Palmer v Walters, 29 AD3d 552, 553 [2006]). Here, thejury's verdict was internally inconsistent, as the jury attributed 10% of the fault for theplaintiff's accident to both the plaintiff and PI, despite having found that their negligencewas not a substantial factor in causing the accident (see D'Annunzio v Ore, 119 AD3d 512 [2014]; Kelly vGreitzer, 83 AD3d at 902; Palmer v Walters, 29 AD3d at 553; Cortes vEdoo, 228 AD2d 463, 465 [1996]). The Supreme Court should have resolved thesubstantial juror confusion, as demonstrated by the internally inconsistent verdict, byeither resubmitting the case to the jury for reconsideration or directing a new trial on theissue of liability (see CPLR 4111 [c]; Kelly v Greitzer, 83 AD3d at 902;Palmer v Walters, 29 AD3d at 553; Kevii v Cenname, 21 AD3d 1061, 1062 [2005]; Clarkev Order of Sisters of St. Dominic, 273 AD2d 431, 432-433 [2000]). On the record,the jury's intent as to the liability of and the apportionment of fault among the plaintiff,Pretty Girl, and PI, cannot be determined (see Viviani v City of Yonkers, 303AD2d 493, 494 [2003]). Thus, there must be a new trial on the issue of liability. For thereasons that follow, however the new trial on the issue of liability is limited to theplaintiff and PI.
After the court set aside the verdict and issued a directed verdict finding that theplaintiff's and PI's negligence were substantial factors in causing the accident, both PIand Pretty Girl submitted motions, in effect, for a directed verdict on new grounds. PImoved for a directed verdict on its cross claim against Pretty Girl for contractualindemnification. Pretty Girl, in effect, cross-moved for a directed verdict dismissing thecomplaint and all cross claims insofar as asserted [*3]against it. In the order entered June 5, 2014, the SupremeCourt denied PI's motion for a directed verdict. In addition, the court granted Pretty Girl'scross motion and directed that the 80% fault that the jury attributed to Pretty Girl wasnow attributed to PI, for a total of 90% fault.
PI's appeal from so much of the order entered June 5, 2014, as, sua sponte, directedthat it is 90% at fault, must be dismissed, as no appeal lies as of right from that part of anorder which does not decide a motion made on notice, and leave to appeal has not beengranted from that portion of the order that directed that PI is 90% at fault (seeCPLR 5701 [a] [2]; [c]; Garcia v Eurobungy USA, 120 AD3d 623, 624 [2014]). Inany event, the Supreme Court's finding that PI is 90% at fault is academic in light of thisCourt's determination that a new trial is required on the issue of liability.
In addition, PI's appeal from so much of the order entered June 5, 2014, as grantedthat branch of Pretty Girl's cross motion which was for judgment as a matter of lawdismissing the complaint insofar as asserted against it must be dismissed, since PI is notaggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d144, 156-157 [2010]; Mahmood v Gutman, 81 AD3d 792 [2011]). Therefore, thenew trial on the issue of liability shall not include Pretty Girl as a defendant.
Turning to the merits of PI's motion for a directed verdict on its cross claim forcontractual indemnification, the subject lease provides that the "Tenant, shall, at Tenant'sown expense, make all repairs and replacements to the sidewalks and curbs adjacentthereto." The lease also provides that Pretty Girl will indemnify PI from all claims fordamages incurred as a result of Pretty Girl's breach of the lease, which, contrary to PrettyGirl's contention, does not conflict with General Obligations Law§ 5-322.1.
Contrary to Pretty Girl's contention, certain provisions in the rider to the lease, whichrequire the tenant to keep the sidewalk clean and free from debris and snow, and to makeall nonstructural repairs to the demised premises, not including the public sidewalk, didnot conflict with the lease's provision that obligated the tenant to make all sidewalkrepairs. Thus, the Supreme Court should have granted PI's motion for a directed verdicton its cross claim against Pretty Girl for contractual indemnification, and denied thatbranch of Pretty Girl's motion which was for a directed verdict dismissing all crossclaims asserted against it. As the complaint was dismissed against Pretty Girl, we convertPI's cross claim against Pretty Girl for contractual indemnification to a third-party causeof action (see Soodoo v LC,LLC, 116 AD3d 1033, 1034 [2014]), and award PI judgment as a matter of lawon its third-party cause of action for contractual indemnification. Dillon, J.P., Dickerson,Cohen and Barros, JJ., concur.