Opinion
March 3, 1997.
In an action to recover damages for personal injuries, etc., the defendant Koren-DiResta Construction Co., Inc., appeals from a judgment of the Supreme Court, Kings County (Yoswein, J.), entered January 16, 1996, which, upon a jury verdict finding it 70% at fault, the defendant American Society for the Prevention of Cruelty to Animals 25% at fault, and the third-party defendant Par-Par Contracting Corp. 5% at fault in the happening of the accident, (1) is in favor of the Plaintiff's and against it and (2) awarded judgment in its favor against Par-Par Contracting Corp. in the principal sum of only $7,969.84.
Before: Copertino, J.P., Sullivan, Friedmann and Goldstein, JJ.
Ordered that the judgment is modified, on the law, by deleting from the fourth decretal paragraph thereof the sum of $7,969.84 and substituting therefor the sum of $10,626.46; as so modified, the judgment is affirmed, without costs or disbursements.
The plaintiff Stefan Bilicki was injured in a construction site accident and commenced an action against the defendants based, inter alia, upon Labor Law §§ 200 and 241 (6). The jury found that the defendant American Society for the Prevention of Cruelty to Animals (hereinafter the ASPCA), the defendant Koren-DiResta Construction Co., Inc. (hereinafter KorenDiResta), and the third-party defendant Par-Par Contracting Corp. (hereinafter Par-Par) were negligent under Labor Law §§ 200 and 241 (6). The jury further found the ASPCA 25% at fault, Koren-DiResta 70% at fault, and Par-Par 5% at fault in the happening of the accident. On appeal, Koren-DiResta argues that the findings that it was negligent under Labor Law § 200 and that it was 70% at fault in the happening of the accident are against the weight of the evidence. We disagree.
A jury verdict should only be set aside as against the weight of the evidence if the verdict could not have been reached on any fair interpretation of the evidence ( see, Nicastro v Park, 113 AD2d 129, 133). Upon review of the record, we find that the jury's determination that Koren-DiResta violated Labor Law § 200 and the jury's apportionment of fault were a fair interpretation of the evidence ( see, Comes v New York State Elec. Gas Corp., 82 NY2d 876).
However, we find that the trial court erred in calculating the amount of the Plaintiffs' damages to be paid by the third-party defendant to Koren-DiResta. The ASPCA entered into a settlement with the Plaintiff's in the amount of $175,000, which amount was properly deducted from the total award of $334,396.74 ($284,396.74 to the plaintiff Stefan Bilicki and $50,000 to the plaintiff Adele Bilicki) (General. Obligations Law § 15-108). The trial court improperly held that Par-Par should pay 5% of the remaining amount (i.e., 5% of $159,396.74). The court should have apportioned the remaining damages between Koren-DiResta and Par-Par, respectively, using a 70:5 ratio. Accordingly, the award to Koren-DiResta against Par-Par must be increased to $10,626.45.