Opinion
102756/99.
Decided August 6, 2004.
Matthew Oshman, Esq., Oshman Mirisola, Esqs., New York City for the plaintiff and Michael D. Hess, Corporation Counsel of the City of New York by Michael D. Pomposello, Assistant Corporation Counsel, for the City of New York and William G. Kelly, Esq., Ahmuty, Demers McManus, Albertson, New York, for American International Realty Corp.
This is a post trial motion submitted by plaintiff David Hudgins who seeks an order "vacating, modifying and/or rearguing that portion of this court's order placed on the record on February 25, 2004 which, sua sponte, reduced the jury's verdict upon which plaintiff is to enter judgment by 10 percent and further limited the accrual of interest on the judgment from the date of February 4, 2004." Plaintiff claims the order of February 25, 2004 should be modified to reflect that: (1) plaintiff is entitled to recover 100 percent of the amount awarded by the jury without any reduction for plaintiff's comparative negligence; and (2) plaintiff is entitled to recover interest on the judgment from June 28, 2002, the date on which the order granting summary judgment in plaintiffs' favor on the issue of liability on his Labor Law § 240 (1) claim was filed.
The percentage of fault attributed to plaintiff Hudgins by the jury's apportionment on the claim of negligence against the defendant City of New York. Additionally, plaintiff has mis-designated a sua sponte vacatur of a portion of the jury award. The court granted defendant City of New York's post trial motion to vacate the jury's award of past medical expenses because that portion of the jury award exceeded the total amount of medical expenses presented in evidence at trial.
The date of the jury's verdict in favor of Hudgins on his claim for negligence against the City.
Defendant the City of New York ("the City") cross-moves for an order vacating, rearguing and/or clarifying the order of February 25, 2004, to the extent it requires the City to indemnify defendant American International Realty Corp. ("AIRC") for the full amount of the judgment to be paid to the plaintiff, including any pre-verdict interest accrued as the result of the determination of summary judgment in plaintiff's favor against AIRC on the issue of liability under the Labor Law § 240 (1) cause of action.
In its affirmation, AIRC concedes and takes no position with respect to that branch of plaintiff's motion which seeks to assert Hudgins' right to recover 100 percent of the amount awarded by jury. Nevertheless, AIRC does reiterate and adheres to its position that it is entitled to full common law indemnification from the City after payment of the judgment.
This lawsuit was initially commenced by plaintiff Hudgins and a co-worker, Louis Vurchio, against the defendants the City of New York and AIRC. Both plaintiffs sought to recover money damages for personal injuries sustained on September 29, 1998, during a building renovation project at 70 Pine Street, New York, New York. Hudgins and his co-worker had been standing on some planking, which had been placed on top of a 25 foot high sidewalk bridge, when a New York City employee drove his truck along Pine Street and struck the planking. The planks and a portion of the sidewalk bridge immediately collapsed. As a result Hudgins and his co-worker plunged to the sidewalk below. Plaintiff's served a complaint interposing claims of negligence against the City of New York for the operation of the truck by its employee, and against AIRC as the owner of the building, for alleged violations of Labor Law §§ 200, 240 (1) and 241 (6). Thereafter, AIRC moved for summary judgment in its favor dismissing the complaint. The plaintiffs cross-moved for partial summary judgment on the issue of liability under Labor Law § 240 (1) and to amend the complaint with respect to their Labor Law § 241 (6) claim. The motion court, (Madden, J.), granted the application of AIRC, to the extent of dismissing plaintiff's claims for violation of the Labor Law § 200 and certain claims pursuant to § 241 (6). In addition, Justice Madden granted plaintiffs' cross-motion, to the extent of amending the complaint to include allegations of various other violations of the Industrial Code and Labor Law § 241 (6) and granting partial summary judgment on the issue of liability in favor of plaintiffs and against AIRC, on the Labor Law § 240 (1) cause of action. Justice Madden specifically found that plaintiffs had not established that AIRC had any control of or supervision over the work plaintiffs performed; nor, had plaintiffs presented any evidence of negligence on the part of AIRC. However, Justice Madden also concluded that the "factual circumstances [were] sufficient to demonstrate a violation of § 240 (1), and that such violation was a substantial factor in causing the plaintiffs' injuries." As a consequence, Justice Madden held that AIRC was vicariously liable as an owner under Labor Law § 240 (1) for its failure to furnish plaintiffs with safety devices that would have provided proper protection against the subject elevation related risk that was a substantial factor in causing the plaintiffs' injuries. In January 2004, the action was referred to this court for trial on the issues of an assessment of damages on Hudgins' claim under Labor Law § 240 (1) against AIRC and for a trial of Hudgins' claims of negligence against the City of New York. These latter claims against the City were set down for trial because the motion court found that there were triable issues of fact as to the alleged negligence of the City's employee/driver in operation of the truck and whether such negligence was a proximate cause of Hudgins' injury. The case was tried before this court and jury and at the close of all the evidence, the jury was instructed that they must render an award in an amount that would fairly and adequately compensate the plaintiff for all losses and injuries that they found the plaintiff had sustained on September 29, 1998. The trial concluded on February 4, 2004, when the jury returned a verdict in favor of the plaintiff on his negligence claims against defendant City of New York, apportioning fault 90 percent against the City and 10 percent against Hudgins and awarding damages as follows: $500,000 for past pain and suffering, $510,000 for past loss of earnings, $250,000 for past medical expenses and $35,000 for past rehabilitation services. As to future damages, plaintiff Hudgins was awarded $75,000 for future pain and suffering for a period of 33 years, $80,000 for future loss of earnings for one year. The jury rendered no award for plaintiff's future medical expenses or future rehabilitation services. Post trial motions pursuant to CPLR 4404 (a) ensued, addressed, in part, to the appropriateness of the jury's award for past medical expenses. On April 20, 2004, due to counsel's failure to produce various hospital bills, I granted that branch of the City's cross-motion, and directed a new trial on the issue of past medical expenses unless the parties were able to stipulate to a reduction of the award to an amount supported by the evidence presented at trial, to wit, $103,536,56. The attorneys for the parties, however, upon the production of the additional certified hospital bills, on April 20, 2004, stipulated to a reduction of the award for past medical expenses in the amount of $153,626.14.
See decision and order of Justice Madden dated June 19, 2002 and filed June 28, 2002.
On stipulation of counsel as a result of the resolution of claims, plaintiff Louis Vurchio was deleted as a named party to plaintiff Hudgins' negligence claim against the City and the caption was amended by the order of this court dated January 27, 2004.
Turning to plaintiff's present application, the motion is granted and the court's order of February 25, 2004, insofar as it directs the amount of the judgment to be entered and the date from which prejudgment interest is to accrue, is hereby modified in accordance with the following decision and order.
Plaintiff Hudgins is entitled to recover a judgment for the full amount of the jury's award without any reduction. Section 240 (1) of the Labor Law in pertinent part provides as follows:
"All contractors and owners and their agents, * * * in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
This statute, commonly referred to as the "Scaffold Law," imposes a nondelegable duty upon owners and contractors alike to provide safety devices that afford proper protection to workers subject to elevation related risks ( see, e.g., Gordon v. Eastern Ry. Supply, 82 NY2d 555, 560). This nondelegable duty applies even in those situations and circumstances where the owner or contractor exercises no supervision or control over the work performed by an independent contractor ( see, Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513). It is well settled law that when an owner or contractor has failed to provide safety devices for laborers at a worksite and the absence of such devices is the proximate cause of injury to a worker, absolute liability will be imposed upon the owner or the contractor without regard to the negligence and/or comparative negligence on the part of the injured plaintiff ( Felker v. Corning Incorporated, 90 NY2d 219, 224-225; Zimmer v. Chemung County Performing Arts, 65 NY2d 512, 524). Thus, while the work, supervision and control may be delegated, as it was in this case, the liability cannot be delegated. Moreover, the jury's finding of Hudgins' comparative negligence is no defense to a Labor Law § 240 (1) claim ( see, Raquet v. Braun, 90 NY2d 177, 184; Stolt v. General Foods Corp., 81 NY2d 918, 920; Koenig v. Patrick Constr. Corp., 298 NY 313; Pironi v. The City of New York, 233 AD2d 187). Nor, may any comparative fault principles be applied to reduce the plaintiff's recovery of money damages. Consequently, the fact that the jury found plaintiff to be 10 percent at fault for his accident is irrelevant and immaterial and such finding of comparative liability will not defeat Hudgins' right to full compensation for all his injuries under the Labor Law (see, e.g., Schaefer v. RCP Associates, 232 AD2d 286). Any breach of section 240(1) of the Labor Law that proximately caused injury to an injured worker imposes absolute liability without regard to that worker's comparative negligence (Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513). It is noted that Justice Madden found ". . . the failure to provide safety devices of the kind listed under § 240(1) to protect plaintiffs from elevation-related risks was a substantial factor in causing their injuries." Justice Madden additionally found: ". . . plaintiffs were not wearing safety harnesses or similar devices at the time of the accident and that the boards on which they were working collapsed after they (and/or the ladder) came in contact with the truck's mirror." These findings and conclusions constitute the law of the case on these issues (see, Martin v. City of Cohoes, 37 NY2d 162, 165; Holloway v. Cha Cha Laundry, Inc., 97 AD2d 385). As a nisi prius judge, I will not sit as an appellate court to entertain any appeal of the rulings of my judicial colleague. Since Justice Madden granted plaintiff's cross-motion for summary judgment as to liability on his Labor Law § 240 claim, there cannot be any reduction of the judgment in plaintiff's favor for any contributory negligence. Any diminishment of plaintiff's recovery would be totally contrary to the intended purpose of the statute ( Long v. Forest-Felhaber, 55 NY2d 154; also see, Rocovich v. Consolidated Edison Co., 78 NY2d 509, 512-513). The Court of Appeals has interpreted this section of the Labor Law as imposing absolute liability upon owners and general contractors in order to protect injured laborers because these workers are scarcely in any position to protect themselves against known special hazards of their occupation. Accordingly, plaintiff is entitled to enter judgment for the full amount of the jury's verdict, as modified by the April 20, 2004 stipulation of counsel with respect to the amount of past medical expenses, for the total sum of $1,353,626.14. Additionally, plaintiff shall recover interest on the total sum at the statutory rate from June 19, 2002, which is the date of the order granting summary judgment in plaintiff's favor against AIRC on the issue of liability on the Labor Law § 240 (1) cause of action (CPLR 5004).
Consequently, that branch of the City's cross-motion which seeks to avoid the inclusion of pre-verdict interest is denied as academic and subsumed by the City's obligation to fully indemnify AIRC for the judgment to be paid to the plaintiff. CPLR § 5002 provides that: "Interest shall be recovered upon the total sum awarded, including interest to verdict, report or decision, in any action from the date the verdict was rendered or the report or decision was made to the date of entry of final judgment * * *." Ordinarily, interest would not begin to accrue until the date of the verdict. However, in this case since there was a bifurcated trial and defendant AIRC's liability was determined by the motion court on June 19, 2002, the judgment bears interest as an element of compensation for delayed payment from that date (see, Kavares v. MVAIC, 29 AD2d 68 affd 28 NY2d 939). Plaintiff is entitled to recover interest as a component of the judgment from the date of the summary judgment determination, even though the amount of damages was not assessed until later ( see, Pay v. State, 87 NY2d 1011; Love v. State of New York, 78 NY2d 540, 545; Bermeo v. Atakent, 241 AD2d 235, 247; Rohring v. City of Niagara Falls, 192 AD2d 228 affd 84 NY2d 60, 70).
Turning now to defendant City of New York's cross-motion seeking an order to vacate, reargue and/or clarify this court's February 25, 2004 order, the cross-motion is granted to the extent that defendant City of New York is directed to indemnify AIRC for the full amount of the judgment. Counsel for the defendant City of New York concedes that plaintiff is entitled to recover 100 percent of the judgment; nevertheless, he argued that indemnification may only be sought from the party whose negligence was imputed to AIRC. Thus, the attorney for the City maintains that AIRC should look to the subcontractor for the renovation project for reimbursement; since it was the subcontractor who exercised control over the work site and supervised the laborers. The City, further, contends that it is entitled to the application of the principles of comparative negligence and apportionment on the grounds that AIRC's claim-over against the City is limited to 90 percent of the judgment. This argument is unpersuasive and lacks any merit.
The case law clearly indicates that the rules of apportionment and comparative fault do not abrogate the basic principles of common law indemnification between the active tortfeasor and the passive tortfeasor ( see, D'Ambrosio v. City of New York, 55 NY2d 454, 462; Fresco v. 157 East 72nd Street Condo., 2 AD3d 326; Wagner v. Grinnell Housing Development Fund Corp., 297 AD2d 226; Salamone v. Wincaf Properties, Inc., 249 AD2d 169). Moreover, counsel for the City is reminded that the City did not implead the subcontractor [i.e., plaintiff's employer] as a party to this lawsuit. In any case, there would be no basis to deny AIRC's right to indemnification, since the rules of contribution and apportionment of liability do not alter or detract from the right of indemnification (CPLR 1404 (b); see, Dole v. Dow, 30 NY2d 143, 152; Rogers v. Dorchester Associates (supra) pp. 563-566; Kelly v. Diesel Constr. Division of Carl A. Morse, Inc., 35 NY2d 1, 6; Riviello v. Waldron, 47 NY2d 297, 306). The City's assertion that common law indemnity is unavailable to AIRC, is simply a misapprehension and a misstatement of the relevant principles of law.
The basis for common law indemnification is predicated upon the principle that "every one is responsible for the consequences of his own negligence, and if another person has been compelled . . . to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him" ( Raquet v. Braun, 90 NY2d 177, 182-183; Chapel v. Mitchell, 84 NY2d 345, 347; Glaser v. M. Fortunoff of Westbury, 71 NY2d 643). "In the classic case, implied indemnity permits one held vicariously liable solely on account of the negligence of another to shift the entire burden of the loss to the actual wrongdoer" ( 17 Vista Fee Associates v. Teachers Ins. and Annuity Assoc. of America, 259 AD2d 75, 80; Correia v. Professional Data Management, 259 AD2d 60, 65; also, see Allen v. Cloutier Constr. Corp., 44 NY2d 290, 301; Guillory v. Nautilus Real Estate, Inc., 208 AD2d 336, 339; Trump Village Section 3, Inc. v. New York State Housing Finance Agency, 307 AD2d 891). Here, AIRC's entitlement to implied indemnification rests not only upon proof that it was free of any negligence, but also upon the fact that the negligent driving of a city employee was a substantial factor in causing the accident and Hudgins' injuries ( Correia v. Professional Data Management (supra) at p. 65). Clearly in this case, the City is the actual wrongdoer. AIRC, on the other hand, as the building owner is merely at fault as a direct consequence of the statutorily imposed liability under the Labor Law. The City's liability, however, is directly predicated upon the actual negligence of its employee driver (see, e.g., Haimes v. New York Telephone Co., 46 NY2d 132, 136; Ross v. Curtis Palmer Hydro-Electric Co., 81 NY2d 494, 500). Consequently in accordance with equitable principles to avoid enrichment of the wrongdoer, AIRC being free of any fault whatsoever is permitted to shift to the City the entire burden of the payment of the judgment ( see, Mas v. Two Bridges Assocs., 75 NY2d 680, 690; D'Ambrosio v. City of New York, 55 NY2d 454, 460-462; Mc Dermott v. City of New York, 50 NY2d 211, 216-217; Brown v. Rosenbaum, 287 NY 510, 518-519, cert. denied 316 U.S. 689). Additionally, the City's argument for reduction of the jury's award is contrary to existing law. Section 76 of the Restatement of Restitution in pertinent part expressly provides that: "where a party has discharged a duty owed by him to another but which, as between himself and a third party, should properly have been discharged by the latter, then a right to indemnification from the third party arises." Consequently since the jury found that the negligent operation of the city vehicle was a substantial factor in causing the September 29, 1998 accident in which David Hudgins was injured, the City's claims for post verdict relief must be denied. Accordingly, it is
ORDERED that the motion by plaintiff is granted to the extent that so much of the court's order of February 25, 2004 that directed judgment in the amount of $1,173,182.91 together with interest from February 4, 2004, is recalled and modified to direct that plaintiff shall have judgment and recover from defendants the City of New York and American International Realty Corp. the sum of $1,353,626.14, together with interest at the rate of 9 percent per annum from June 19, 2002, plus costs and disbursements to be computed by the Clerk and that plaintiff have execution thereon; and it is further
ORDERED that the cross-motion by defendant City of New York is denied, in all respects, as academic for the reason previously stated herein. The foregoing constitutes the decision and judgment of the court.