Opinion
January 31, 1994
Appeal from the Supreme Court, Queens County (Harbater, J.).
Ordered that the judgment is modified, on the facts and as a matter of discretion, by reducing the principal sum awarded to the plaintiff to $52,700 ($2,700 for past medical expenses, $40,000 for past pain and suffering, and $10,000 for future medical expenses), and by adding thereto a provision severing the plaintiff's claims for past lost wages and for future pain and suffering and granting a new trial with respect to those claims, unless the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation, signed by the plaintiff, consenting to decrease (1) the verdict as to damages for past lost wages from the principal sum of $10,000 to the principal sum of $900, and (2) the verdict as to future pain and suffering from the principal sum of $200,000 to the principal sum of $100,000, and consenting to the entry of an amended judgment accordingly; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the plaintiff's time to serve and file such a stipulation is extended until 20 days after service upon him of a copy of this decision and order, with notice of entry. In the event that the plaintiff so stipulates, then the judgment in his favor, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff was employed as a painter by Michael Edward Contracting, Inc., when he fell and sustained personal injuries while working at a job site with employees of the third-party defendant Aquamer Painting Contracting (hereinafter Aquamer). The building in which the plaintiff fell was owned by the defendant City of New York (hereinafter the City). The City had contracted with the defendant third-party plaintiff Thompson Construction Company (hereinafter Thompson) to renovate the building. Thompson, in turn, had subcontracted with Aquamer to do the painting.
The trial testimony reveals that the floor of the building was partially covered by two sloping platforms which ran from the front to the rear. In order to paint the ceiling, Thompson provided a scaffold which was constructed by its employees and regularly inspected by the City's representative. The plaintiff was injured when the scaffold, upon which he was standing, toppled while it was being moved by an employee of Aquamer. It was undisputed that the scaffold was properly constructed and in safe condition. Moreover, the evidence reveals that Aquamer's employee ignored previous warnings by representatives of the City and Thompson not to move the scaffold without assistance.
We reject the City's contention that the evidence does not support a finding of liability against it and Thompson under Labor Law § 240. There is sufficient evidence in the record for the jury to have found that the scaffold was placed, within the meaning of Labor Law § 240, by Aquamer's employee in a manner which did not give proper protection to the plaintiff and that such placement was the proximate cause of the plaintiff's injuries (see, e.g., Bland v. Manocherian, 66 N.Y.2d 452; Ferra v County of Wayne, 147 A.D.2d 964; Novell v. Carney Elec. Constr. Corp., 123 Misc.2d 1089).
We also reject Aquamer's contention that the jury's apportionment of 100% liability against it is contrary to the weight of the evidence. It is uncontroverted that the scaffold was in safe condition when it rolled off the platform and toppled. The evidence establishes that Aquamer's employee caused the scaffold to fall off the platform when he improperly moved it while the plaintiff was on top of it. Under these circumstances, there exists no reason to set aside, as against the weight of the evidence, the jury's finding with respect to Aquamer (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493; Vaniglia v. Northgate Homes, Northgate Props., 137 A.D.2d 806; Nicastro v. Park, 113 A.D.2d 129).
We find, however, that the verdict as to damages for past lost wages and future pain and suffering "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]) to the extent indicated.
Aquamer's remaining contention is without merit (see, Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172; Hawthorne v. South Bronx Community Corp., 165 A.D.2d 652, affd 78 N.Y.2d 433; cf., General Obligations Law § 5-322.1). Mangano, P.J., Balletta, Santucci and Hart, JJ., concur.