| Vargas v Crown Container Co., Inc. |
| 2017 NY Slip Op 08297 [155 AD3d 989] |
| November 22, 2017 |
| Appellate Division, Second Department |
[*1]
| Pedro Vargas, as Administrator of the Estate of IvanHernandez-Morales, Deceased, et al., Respondents, v Crown Container Co., Inc., et al.,Defendants, and Advanced Fleet Maintenance, Inc., Appellant. (And Third-PartyActions.) |
Nelson Levine De Luca & Horst LLC (Mauro Lilling Naparty LLP, Woodbury, NY[Matthew W. Naparty and Gregory A. Cascino], of counsel), for appellant.
The Edelsteins, Faegenburg & Brown, New York, NY (Paul J. Edelstein of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries and wrongful death, etc., thedefendant Advanced Fleet Maintenance, Inc., appeals (1) from a judgment of the Supreme Court,Kings County (Schack, J.), dated April 24, 2014, which, upon a jury verdict finding it 49.5% atfault in the happening of the accident and awarding the plaintiffs damages in the principal sumsof $168,000 for past loss of earnings, $1,040,000 for future loss of earnings for 16 years,$1,000,000 for pre-impact terror, $2,000,000 for conscious pain and suffering, $2,000,000 forpast pecuniary loss, and $1,000,000 for future pecuniary loss for 16 years, is in favor of theplaintiffs and against it in the principal sum of $3,603,394, and (2), as limited by its brief, fromso much of an order of the same court dated May 5, 2015, as denied those branches of its motionwhich were pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of liability andfor judgment as a matter of law or, in the alternative, to set aside the jury verdict on the issue ofliability as contrary to the weight of the evidence and for a new trial or, in the alternative, to setaside so much of the jury verdict as awarded damages for past loss of earnings, future loss ofearnings, pre-impact terror, and conscious pain and suffering and for judgment as a matter of lawdismissing so much of the complaint as sought to recover those damages or, in the alternative, toset aside the jury verdict on the issue of damages as contrary to the weight of the evidence orexcessive and for a new trial on the issue of damages, and for leave to amend its answer to assertthe affirmative defense of setoff pursuant to General Obligations Law§ 15-108.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof awarding the plaintiffs damages for pre-impact terror, consciouspain and suffering, past pecuniary loss, and future pecuniary loss; as so modified, the judgment isaffirmed, without costs or disbursements, so much of the order as denied those branches of themotion of the defendant Advanced Fleet Maintenance, Inc., which were pursuant to CPLR 4404(a) to set aside so much of the jury verdict as awarded damages for pre-impact terror, consciouspain and suffering, past pecuniary loss, and future pecuniary loss as contrary to the weight of the[*2]evidence or excessive and for a new trial on the issue of thosedamages is vacated, and the matter is remitted to the Supreme Court, Kings County, for a newtrial on the issue of damages for pre-impact terror, conscious pain and suffering, past pecuniaryloss, and future pecuniary loss, and for the entry of an appropriate amended judgment thereafter,unless within 30 days after service upon the plaintiffs of a copy of this decision and order, theplaintiffs shall serve and file in the office of the Clerk of the Supreme Court, Kings County, awritten stipulation consenting to reduce the verdict as to damages for pre-impact terror from theprincipal sum of $1,000,000 to the principal sum of $250,000, for conscious pain and sufferingfrom the principal sum of $2,000,000 to the principal sum of $750,000, for past pecuniary lossfrom the principal sum of $2,000,000 to the principal sum of $650,000, and for future pecuniaryloss from the principal sum of $1,000,000 for 16 years to the principal sum of $350,000, and tothe entry of an amended judgment accordingly; in the event the plaintiffs so stipulate, then thejudgment, as so reduced and amended, is affirmed, without costs or disbursements; and it isfurther,
Ordered that the appeal from so much of the order as denied those branches of the motion ofthe defendant Advanced Fleet Maintenance, Inc., which were pursuant to CPLR 4404 (a) to setaside so much of the jury verdict as awarded damages for pre-impact terror, conscious pain andsuffering, past pecuniary loss, and future pecuniary loss as contrary to the weight of the evidenceor excessive and for a new trial on the issue of those damages is dismissed as academic, withoutcosts or disbursements, in light of our determination on the appeal from the judgment; and it isfurther,
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof denying that branch of the motion of the defendant Advanced FleetMaintenance, Inc., which was for leave to amend its answer to assert the affirmative defense ofsetoff pursuant to General Obligations Law § 15-108, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asreviewed, without costs or disbursements.
The plaintiffs' decedent was employed as a helper on a private garbage truck owned by thedecedent's employer, the defendant Crown Container Co., Inc. (hereinafter CCC). The decedentsustained fatal injuries when the truck lurched backward and pinned him against a garbagedumpster. The plaintiffs, the administrator of the decedent's estate and the decedent's infant son,by his mother and natural guardian, commenced this action, inter alia, to recover damages forpersonal injuries and wrongful death against, among others, CCC, the defendant Ashim Ali, aCCC employee and the driver of the truck, and the defendant Advanced Fleet Maintenance, Inc.(hereinafter Advanced), which serviced the truck's transmission six months prior to the accident.At trial, the evidence indicated that Advanced, after servicing and inspecting the truck, allowedthe truck to leave its facility without a required functioning neutral interlock system.
Following the trial, the jury found that Advanced was 49.5% at fault in the happening of theaccident and awarded damages to the plaintiffs for past loss of earnings, future loss of earnings,pre-impact terror, conscious pain and suffering, past pecuniary loss, and future pecuniary loss. Ajudgment was entered in favor of the plaintiffs and against Advanced in the principal sum of$3,603,394. Thereafter, Advanced moved, inter alia, pursuant to CPLR 4404 (a) to set aside thejury verdict on the issue of liability and for judgment as a matter of law or, in the alternative, toset aside the jury verdict on the issue of liability as contrary to the weight of the evidence and fora new trial or, in the alternative, to set aside so much of the jury verdict as awarded damages forpast loss of earnings, future loss of earnings, pre-impact terror, and conscious pain and sufferingand for judgment as a matter of law dismissing so much of the complaint as sought to recoverthose damages or, in the alternative, to set aside the jury verdict on the issue of damages ascontrary to the weight of the evidence or excessive and for a new trial on the issue of damages,and for leave to amend its answer to assert the affirmative defense of setoff pursuant to GeneralObligations Law § 15-108. The Supreme Court denied those branches ofAdvanced's motion. Advanced appeals.
Advanced contends that the branch of its motion which was pursuant to CPLR 4404 (a) to setaside the jury verdict on the issue of liability and for judgment as a matter of law should havebeen granted because it owed no duty of care to the decedent, who was not a party to [*3]the service agreement between Advanced and CCC, pursuant to theprinciples enunciated in Espinal v Melville Snow Contrs. (98 NY2d 136, 140 [2002]).Advanced first raised its contention regarding its lack of duty in its posttrial motion. At trial, thejury was charged, without objection, that "if you decide that [Advanced] did not use the samedegree of skill and care [that others in the community in that trade would reasonably use in thesame situation] then you must find that [Advanced] was negligent." Therefore, the issue was notbefore the jury, and was not properly raised as a ground to set aside the jury verdict.
In any event, the record demonstrates that Advanced owed the decedent a duty as athird-party beneficiary of its contractual relationship between itself and CCC (see id. at140; Filer v Keystone Corp., 128AD3d 1323 [2015]). If the parties to the contract intended to confer a direct benefit on thedecedent, a duty is owed to the decedent (see Bernal v Pinkerton's, Inc., 52 AD2d 760[1976], affd 41 NY2d 938 [1977]). Although there was no written contract between thecontracting parties, an intent to confer a direct benefit on the decedent may also be inferred fromthe circumstances (see Encore LakeGrove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d 881, 882 [2013]),including the parties' oral agreement and course of conduct (see Mitchell v Long Acre Hotel, 147 AD3d 567 [2017]).
An employee is not automatically a third-party beneficiary of a service contract between hisor her employer and another party (seeParker v Raymond Corp., 87 AD3d 1115 [2011]; Jackson v Lehigh Constr.Group, 299 AD2d 836 [2002]). However, if the employer's intent was to benefit itsemployees, third-party beneficiary status may be inferred (see Encore Lake GroveHomeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d at 882; All Am. Moving & Stor., Inc. vAndrews, 96 AD3d 674, 675 [2012]).
At trial, the plaintiffs asserted that a proximate cause of the accident was the absence of afunctioning neutral interlock system on the truck. The neutral interlock system would haveprevented the truck from going backward while garbage was being loaded in the truck. CCCrecognized that a neutral interlock system was an important safety feature of the truck. Thatsystem was part of the transmission system, which was serviced by Advanced. At trial, Advancedacknowledged that when the truck was road tested in November 2006, some six months prior tothe accident, CCC should have been informed if a neutral interlock system was not working ornot present, since this was one of the primary safety features of the truck.
The evidence indicated that Advance and CCC recognized that the neutral interlock systemwas an important safety feature. Further, it is clear from the record that Advance and CCCrecognized that this safety feature's primary benefit was to CCC's employees who loaded thegarbage trucks. Accordingly, it could be inferred that the decedent was a third-party beneficiaryof the contractual relationship between CCC and Advanced.
Turning to the issue of damages, the plaintiffs correctly concede that the awards forpre-impact terror, conscious pain and suffering, past pecuniary loss, and future pecuniary losswere excessive. Pre-impact terror pertains to the emotional pain and suffering that the decedentmay have endured between the moment he was aware that the vehicle was about to hit him andthe moment of impact (see McKenna vReale, 137 AD3d 1533, 1535 [2016], citing PJI 2:320). Ali testified that the decedentwas facing the rear of the truck when Ali started the compactor. The plaintiffs' expert engineertestified that it would have taken less than a second for the truck to strike the decedent after itstarted moving in reverse. The plaintiff's medical expert testified that the decedent did not haveany injuries that would have killed him instantly, nor did he lose consciousness immediately. Thedecedent would have experienced pain from multiple rib fractures and abrasions. In the medicalexpert's opinion, it took approximately one or two minutes for the decedent to die from hisinternal injuries. In view of the foregoing evidence, awards of $250,000 for pre-impact terror and$750,000 for conscious pain and suffering would constitute reasonable compensation (see Ferrigno v County of Suffolk, 60AD3d 726, 727 [2009]).
"Damages in a wrongful death action are, by statute, limited to 'pecuniary injuries' sufferedby the distributees of decedent's estate" (Parilis v Feinstein, 49 NY2d 984, 985 [1980],quoting EPTL 5-4.3), including "[l]oss of support, voluntary assistance and possible inheritance"(Gonzalez [*4]v New York City Hous. Auth., 77 NY2d663, 668 [1991]; see EPTL 5-4.3 [a]). Here, the decedent was 22 years old at the time ofhis death. He worked two jobs to support his family—one as a helper on a garbage truck,and one in his parents' bodega—and he had an infant son who was one year old at the timeof his death. Awards of $650,000 for past pecuniary loss and $350,000 for future pecuniary losswould be reasonable compensation for the child's loss (see generally Motelson v Ford Motor Co., 101 AD3d 957 [2012],affd 24 NY3d 1025 [2014]).
The Supreme Court erred in denying that branch of Advanced's motion which was for leaveto amend its answer to assert the affirmative defense of a setoff pursuant to General ObligationsLaw § 15-108 (a) for the proceeds of a settlement from the settling defendants. Theplaintiffs would not have been prejudiced by the amendment (see Whalen v Kawasaki MotorsCorp., U.S.A., 92 NY2d 288, 293 [1998]), since there is no indication in the record that theplaintiffs changed their position in reliance upon the fact that a setoff pursuant to GeneralObligations Law § 15-108 (a) was not pleaded in Advanced's original answer. Onthis point, the amount of the settlement was substantial, and therefore, it is unlikely that thepleading of a setoff would have induced the plaintiffs to forgo the settlement.
Advanced's remaining contentions are without merit. Dillon, J.P., Austin, Hinds-Radix andLaSalle, JJ., concur.