| Simon v Granite Bldg. 2, LLC |
| 2019 NY Slip Op 02373 [170 AD3d 1227] |
| March 27, 2019 |
| Appellate Division, Second Department |
[*1]
| Charles Simon, as Administrator of the Estate of Julie Simon,Deceased, Respondent, v Granite Building 2, LLC, Appellant-Respondent, KulkaContracting, LLC, Respondent-Appellant, and FXR Construction, Inc., Respondent, et al.,Defendants. |
Quirk and Bakalor, P.C. (Shaub, Ahmuty, Citrin & Spratt, LLP, New York, NY[Timothy R. Capowski and Sofya Uvaydov], of counsel), fordefendant-appellant-respondent.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, NY (Harriet Wong andVanessa M. Corchia of counsel), for defendant-respondent-appellant.
Rosenberg & Gluck, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York,NY [Brian J. Isaac and Michael H. Zhu], of counsel), for plaintiff-respondent.
White Fleischner & Fino, LLP, New York, NY (Nancy Davis Lewis of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries and wrongful death, the defendantGranite Building 2, LLC, appeals from (1) an order of the Supreme Court, Nassau County(Jeffrey S. Brown, J.), entered April 26, 2016, (2) an order of the same court entered September13, 2016, and (3) a judgment of the same court entered March 23, 2017, and the defendant KulkaContracting, LLC, cross-appeals from (1) the order entered April 26, 2016, and (2) the judgment.The order entered April 26, 2016, insofar as appealed and cross-appealed from, denied thosebranches of the appellants' separate motions which were pursuant to CPLR 4404 (a) to set asidethe jury verdict on the issue of liability as contrary to the weight of the evidence and for a newtrial, to set aside the jury verdict on the issue of damages for the decedent's pre-impact terror ascontrary to the weight of the evidence and for a new trial, or to reduce, as excessive, the damagesawarded for the decedent's pre-impact terror, and to set aside the jury verdict on all issues in theinterest of justice and for a new trial, and granted those branches of the appellants' separatemotions which were pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue ofdamages for the plaintiff's past and future pain and suffering, the plaintiff's past and futureeconomic loss, and the decedent's past and future economic loss, and for a new trial on thosedamages, or to vacate or reduce, as excessive, those damages, only to the extent of directing anew trial on those damages unless the plaintiff stipulated to reduce the damages for the plaintiff'spast pain and suffering from the principal sum of $3,000,000 to the principal sum of $1,500,000,for the plaintiff's future pain and suffering from the principal sum of $3,000,000 to the principalsum of $1,500,000, for the plaintiff's past and future economic loss from the principal sum of$1,495,000 to the principal sum of $747,500, and the decedent's past and future economic lossfrom the principal sum of $1,440,000 to the principal sum of $720,000. The order enteredSeptember 13, 2016, insofar as appealed from by the defendant Granite Building 2, LLC, deniedthat defendant's motion for leave to renew and reargue its prior motion pursuant to CPLR 4404(a). The judgment, insofar as appealed from, upon the denial of the motion of the defendantKulka Contracting, LLC, pursuant to CPLR 4401 for judgment as a matter of law made at theclose of the plaintiff's case, upon the jury verdict, upon the order entered April 26, 2016, andupon the plaintiff's stipulation to reduce the damages awards as directed in the order enteredApril 26, 2016, is in favor of the plaintiff and against the appellants and another defendant in theprincipal sum of $4,772,614.80.
Ordered that the appeal from so much of the order entered September 13, 2016, as deniedthat branch of the motion of the defendant Granite Building 2, LLC, which was for leave toreargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the appeals from the order entered April 26, 2016, and from so much of theorder entered September 13, 2016, as denied that branch of the motion of the defendant GraniteBuilding 2, LLC, which was for leave to renew are dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeals from the order entered April 26, 2016, and from so much of the order enteredSeptember 13, 2016, as denied that branch of the motion of the defendant Granite Building 2,LLC (hereinafter Granite), which was for leave to renew must be dismissed because the right ofdirect appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeals from the order enteredApril 26, 2016, and from so much of the order entered September 13, 2016, as denied that branchof Granite's motion which was for leave to renew are brought up for review and have beenconsidered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff and his wife (hereinafter the decedent) were hired to hang wallpaper in a newlyconstructed office building, which was owned by Granite. Kulka Contracting, LLC (hereinafterKulka), had contracted with Granite to perform as the site construction manager. The incidentgiving rise to this action occurred at approximately 8:30 a.m. on February 13, 2008, the day theplaintiff and the decedent were scheduled to commence work in the building. While it had beensnowing on February 12, 2008, the day before the accident, in the early morning hours ofFebruary 13, 2008, the snow changed to rain. It was raining on the morning of February 13, 2008,when the decedent drove her vehicle, with the plaintiff as a passenger, to the job site. When theplaintiff and the decedent were unable to enter the building through the front entrance, thedecedent drove the vehicle through an opening in a fence onto the upper deck of an adjacentparking garage that was still under construction. When the vehicle was approximately halfwaybetween the opening gate in the fence and the leading edge of the parking garage, the decedentinformed the plaintiff that she could not stop. The vehicle slid on the ice until it reached the edgeof the incomplete parking garage, broke through the steel cable guardrail system, and fellapproximately 32 feet into an excavation pit in the location of the lower level of the garage. Theplaintiff jumped out of the vehicle before it fell, and watched as the vehicle fell into the pit withthe decedent, who screamed his name out while the vehicle fell and died at the scene (see Simon v Granite Bldg. 2, LLC, 114AD3d 749, 752 [2014]).
The plaintiff, individually and as the administrator of the decedent's estate, subsequentlycommenced this action against, among others, Granite and Kulka to recover damages forpersonal injuries and wrongful death, alleging, inter alia, violations of Labor Law§ 200 and common-law negligence. After a trial, the jury found that Granite andKulka were both negligent, and apportioned 60% of the fault in the happening of the incident toGranite, 30% of the fault to Kulka, 10% of the fault to another defendant, and 0% to thedecedent. The jury awarded, inter alia, damages in the sum of $500,000 for the decedent'spre-impact terror, $3,000,000 for the plaintiff's past pain and suffering, $3,000,000 for theplaintiff's future pain and suffering, $1,495,000 for the plaintiff's past and future economic loss,and $1,440,000 for the decedent's past and future economic loss.
Granite moved, inter alia, pursuant to CPLR 4404 (a) to set aside the verdict as contrary tothe weight of the evidence and for a new trial on the issue of liability on the ground that theSupreme Court should not have permitted the jury to consider a claim of liability against themthat was barred as a matter of law by the "storm in progress" doctrine, as well as for a new trial orsubstantial remittitur of the awards for the decedent's pre-impact terror, the plaintiff's past andfuture pain and suffering, the plaintiff's past and future economic loss, and the decedent's pastand future economic loss. Kulka separately moved, inter alia, pursuant to CPLR 4404 (a) to setaside the verdict and for a new trial based on various alleged erroneous rulings made by thecourt, and/or to direct a new trial on the issue of damages on the ground that the verdict wasexcessive.
In an order dated April 22, 2016, the court denied the motions of Granite and Kulka(hereinafter together the defendants) except to the extent that it directed a new trial on the issueof damages for the plaintiff's past and future pain and suffering, the plaintiff's past and futureeconomic loss, and the decedent's past and future economic loss, unless the plaintiff stipulated toreduce the damages for the plaintiff's past and future pain and suffering to the sum of $3,000,000,the damages for the plaintiff's past and future economic loss to the sum of $747,500, and thedamages for the decedent's past and future economic loss to the sum of $720,000. The defendantsappeal.
"A motion pursuant to CPLR 4404 (a) to set aside a verdict and for a new trial in the interestof justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakesin the charge, misconduct, newly discovered evidence, and surprise" (Russo v Levat, 143 AD3d 966,968 [2016]; see Morency v HorizonTransp. Servs., Inc., 139 AD3d 1021, 1022-1023 [2016]; Allen v Uh, 82 AD3d 1025, 1025[2011]).
We agree with the Supreme Court's denial of those branches of the defendants' motionswhich were pursuant to CPLR 4404 (a) to set aside the verdict on the issue of liability and for anew trial which were made on the ground that the plaintiff's claim regarding the defendants'failure to plow and salt the parking deck should not have been submitted to the jury because saidclaim was barred as a matter of law by the storm in progress doctrine. The court did not err insubmitting the issue of whether there was a storm in progress to the jury, as there was a triableissue of fact as to whether there was an ongoing storm at the time of the accident (see Arroyo v Clarke, 148 AD3d479 [2017]; Calix v New York CityTr. Auth., 14 AD3d 583 [2005]). In any event, the claim that there was a storm inprogress was a defense to only one theory of liability presented to the jury, i.e., the failure to saltand plow the lot under construction. Based upon the evidence, there were other distinct andsufficient grounds, all of which were unrelated to the issue of the storm in progress, that werepresented to the jury to provide them with a basis for a determination that the defendants'negligence in maintaining the property resulted in the vehicle sliding into the excavation pit(see e.g. Santiago v New York City Hous. Auth., 268 AD2d 203 [2000]). These groundsincluded failing to ensure the fence to the parking garage under construction was closed, failingto have placed a barricade at the edge of the excavation pit, and allowing the drains to be tapedclosed causing the ice on which the plaintiff's vehicle slid to form.
"To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, adefendant has the burden of showing that there is no rational process by which the jury could findin favor of the plaintiff and against the moving defendant" (Feteha v Scheinman, 169 AD3d 871, 872 [2d Dept 2019]; seeSzczerbiak v Pilat, 90 NY2d 553 [1997]). "In determining whether the defendant has metthis burden, a court must accept the plaintiff's evidence as true and accord the plaintiff the benefitof every favorable inference which can reasonably be drawn from the evidence presented at trial"(Feteha v Scheinman, 169 AD3d at 872; see Szczerbiak v Pilat, 90 NY2d at556).
Contrary to Kulka's contention, the fact that it was the construction manager at the site didnot absolve it of owing a duty of care to the plaintiffs, and entitle it to judgment as a matter oflaw dismissing the Labor Law § 200 and negligence claims against it. "Although aconstruction manager is generally not considered a contractor responsible for the safety of theworkers at a construction site pursuant to Labor Law § 200, . . . it maynonetheless become responsible if it has been delegated the authority and duties of a generalcontractor, or if it functions as an agent of the owner of the premises" (Rodriguez v JMB Architecture, LLC,82 AD3d 949, 950 [2011]). "The label of construction manager versus general contractor isnot necessarily determinative" (Walls vTurner Constr. Co., 4 NY3d 861, 864 [2005]; see Lodato v Greyhawk N. Am., LLC, 39 AD3d 491, 493 [2007]).Moreover, when a plaintiff's injuries stem from dangerous premises conditions at a work site, thegeneral contractor may be held for a violation of Labor Law § 200 if he or she hadcontrol over the work site and either created the condition that caused the accident, or had actualor constructive notice of the dangerous condition (see Honeyman v Curiosity Works, Inc., 154 AD3d 820, 822 [2017];Ortega v Puccia, 57 AD3d 54,61 [2008]; Wynne v State of NewYork, 53 AD3d 656, 657 [2008]).
Here, viewing the evidence in the light most favorable to the plaintiffs, and affording themevery inference which may properly be drawn from the facts presented, a rational jury could havefound that Kulka functioned as a general contractor having control over the work site, andpossessed actual or constructive notice of the dangerous conditions that caused the accident, andwas negligent with regard to keeping the premises safe. The jury made a credibility determinationthat, even though Kulka was designated a "construction manager," it also acted as a generalcontractor. The jury's resolution of this credibility issue against Kulka is entitled to deference (see Lalla v Connolly, 17 AD3d322, 323 [2005]). The testimony demonstrated that there was no general contractor at thesite, and that Kulka, as construction manager of the property, took on duties of a generalcontractor, and was responsible to make sure the job site was safe and to make recommendationsregarding safety. Also, Kulka was aware the fence had been opened, and was also aware that atthis stage of the construction the drains could be covered.
Contrary to the defendants' contention, the reduced awards totaling $3,000,000 to theplaintiff for his past and future pain and suffering, and the award of $500,000 for the decedent'spre-impact terror, do not deviate materially from what would be reasonable compensation(see CPLR 5501 [c]). Additionally, although the defendants dispute the methods of theplaintiffs' economist, they failed to offer expert testimony of their own (see Adams v NewYork State Thruway Auth., 228 AD2d 627 [1996]). Moreover, the reduced awards totaling$720,000 for the decedent's past and future and economic loss, and the reduced awards totaling$747,500 for the plaintiff's past and future economic loss, did not deviate materially from whatwould be reasonable compensation (seeVatalaro v County of Suffolk, 163 AD3d 893 [2018]).
Any error in the admission of certain testimony and jury instructions is harmless, as we aresatisfied that the result would have been the same if the alleged errors had not occurred (see Rosenberg v Jing Jiang, 153 AD3d744, 745 [2017]; CPLR 2002).
The defendants' remaining contentions either are without merit or have been renderedacademic in light of our determination. Mastro, J.P., Cohen, Maltese and Christopher, JJ.,concur.