Opinion
Index No. 508892/2017
11-18-2024
Oscar Nunez, Plaintiff, v. 678 St. Marks Management, LLC, Defendant.
Attorneys for the Movant/Defendant: Aaron Goldsmith, Jeffrey Gold Attorneys for Plaintiffs: Harris Zakarin, Nicholas Elefterakis, Johnson Atkinson, Stephen Kahn, Jeffrey Bromfeld, Andrew Levinson
Unpublished Opinion
Attorneys for the Movant/Defendant: Aaron Goldsmith, Jeffrey Gold
Attorneys for Plaintiffs: Harris Zakarin, Nicholas Elefterakis, Johnson Atkinson, Stephen Kahn, Jeffrey Bromfeld, Andrew Levinson
Joy F. Campanelli, J.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 94-103,107-114
Opposing Affidavits (Affirmations) 104-105
Affidavits/ Affirmations in Reply 106
Other Papers: Trial Extract 93
Defendant 678 ST. MARKS MANAGEMENT, LLC moves by Notice of Motion seq. no. 5, pursuant to CPLR § 4404(a), to set aside the verdict of February 16, 2024, and dismiss the case in its entirety or direct a new trial on both liability and damages. In the alternative, Defendant moves pursuant to CPLR § 2221(d) for leave to reargue their motion for a directed verdict which was denied during the February 16, 2024, trial, and upon reargument, grant Defendant's a directed verdict and dismiss the case in its entirety.
Plaintiff commenced the underlying personal injury action after a construction site accident left him with a detached retina, resulting in permanent blindness in one eye. Plaintiff sustained the aforementioned injuries while working on Defendant's construction site and argued that Defendant violated the New York State Labor Law and Industrial Code by not providing workers with eye protection or adequate lighting in the workplace. A jury trial was held, from February 8, 2024, to February 16, 2024. Defendant moved for a directed verdict on three grounds: that they owed no duty as a property owner for injuries caused by risks inherent to the work being performed; that Plaintiff is a special employee and as such can only recover through a Workers Compensation claim; and that Plaintiff failed to establish causation at trial. Defendant's motion was denied after oral arguments on the record. Subsequently, the jury found for the Plaintiff, and the jury awarded $1.8 million dollars for past pain and suffering and $2.7 million dollars for future pain and suffering.
i. C.P.L.R. § 2221(d)(2) Motion for leave to reargue.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion[.]" NY C.P.L.R. 2221(d)(2) (McKinney). Motions for leave to reargue are within the discretion of the court and are "not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented[.]" McGill v. Goldman, 261 A.D.2d 593, 594, 691 N.Y.S.2d 75; see Jaspar Holdings, LLC v. Gotham Trading Partners # 1, LLC, 186 A.D.3d 582, 584, 130 N.Y.S.3d 19; Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., 178 A.D.3d at 773, 111 N.Y.S.3d 898; Woody's Lbr. Co., Inc. v. Jayram Realty Corp., 30 A.D.3d 590, 593, 817 N.Y.S.2d 391); Emigrant Bank v. Kaufman, 203 N.Y.S.3d 363, 365-66 (NY A.D.2d Dept. 2024).
At trial, Defendant moved for a directed verdict on the following three grounds: 1) there is no duty owed by a property owner for injuries caused by risks inherent to the work being performed and that are readily observable; 2) The testimony at trial establishes that Plaintiff is a special employee and as such, the Plaintiff's only recourse is through a Workers Compensation claim; and 3) Plaintiff failed to establish causation at trial and therefore cannot make out a prima facie case. The Court considered these arguments, heard opposition, and denied the motion for a directed verdict. Now, Defendant offers the same three arguments in support of their motion for leave to reargue without indicating in their filings what exactly was misapprehended or overlooked by the Court.
Plaintiff's claim for relief, pursuant to Labor Law § 241(6), was premised on a violation of industrial code §§ 23-1.8(a) and 23-1.30. The jury was charged to consider whether the Defendant, as owner of a construction site, was liable for their failure to provide reasonable and adequate protection and safety to the Plaintiff, whether Defendant failed to provide Plaintiff with protective eye equipment during demolition work, and whether Defendant failed to properly illuminate a subbasement area where Plaintiff was working. The jury was not charged with determining whether Defendant was liable in common law negligence or whether Plaintiff was a Special Employee of Defendant.
Defendants argues that as a property owner, they owe no duty for injuries caused by inherently dangerous and readily observable risks associated with the work done on their property. While that may an argument where common law negligence is alleged, Labor Law § 241(6) provides an independent avenue for relief for plaintiffs and does not simply codify the common law negligence duty standard. "Labor Law § 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" White v. Village of Port Chester, 940 N.Y.S.2d 94, 99 (NY A.D.2d Dept. 2012). Plaintiff did not allege common law negligence and therefore the jury was not charged with determining if Defendant owed a duty to Plaintiff under a common law negligence theory at trial. The Court did not misapprehend or overlook any matters of law or fact in denying Defendant's motion for a directed verdict on this point.
Next, Defendant argues in support of their motion for a directed verdict that the testimony at trial establishes that Plaintiff is a special employee of Defendant and as such, the Plaintiff's only recourse is through a Workers Compensation claim. Again, in support of their motion for leave to reargue the underlying motion for a directed verdict, Defendant does not specifically address what the Court misapprehended or overlooked with regards to this branch of their argument.
Under Workers Compensation Law, a special employee is "one who is transferred for a limited time of whatever duration to the service of another." Thompson v. Grumman Aerospace Corp., 585 N.E.2d 355, 357 (NY 1991). To determine who is a special employee requires the balancing of many factors including "who has the right to control the employee's work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business[.]" Schramm v. Cold Spring Harbor Laboratory, 793 N.Y.S.2d 530, 532 (NY A.D.2d Dept. 2005). "Although a person's status as a special employee is generally a question of fact, it may be determined as a matter of law "[w]here the particular, undisputed critical facts compel that conclusion and present no triable issue of fact" Degale-Selier v. Preferred Mgt. & Leasing Corp., 870 N.Y.S.2d 94, 95 (NY A.D.2d Dept. 2008) (quoting Thompson v. Grumman Aerospace Corp., 558, 578 N.Y.S.2d 106, 585 N.E.2d 355).
Defendant has asserted that Plaintiff is a special employee of Defendant only twice during litigation: in support of their motion for a directed verdict, and against at the charge conference. In both instances, the Court rejected this argument as Defendant did not offer sufficient evidence on the record which could lead to a balancing of the special employee factors in their favor. Now in support of their motion for leave to reargue, Defendant yet again does not specify any matter of fact or law which the Court overlooked or misapprehended at the time the motion for a directed verdict was denied. In support of the present motion, Defendant relies on the testimony of Plaintiff, Yehuda Cohen, and Yisroel Kanar. The excerpted testimony Defendant uses to support their argument do not contain "particular, undisputed critical facts" which would compel a conclusion that Plaintiff is a special employee as a matter of law. Likewise, after balancing the factors, Cohen's lack of control over the Plaintiff's work leads to the conclusion, as was decided in the first instance, that Plaintiff is not a special employee of Defendant. The Court did not misapprehend or overlook any matter regarding this branch of Defendant's argument.
Lastly, Defendant argued in support of their motion for a directed verdict that Plaintiff failed to make out a prima facie case at trial because Plaintiff's expert witness failed to establish causation. Yet again, Defendant fails to specify exactly what was overlooked or misapprehended by the Court in denying the underlying motion for a directed verdict. Defendant argues that Plaintiff's expert witness, Dr. Landa, never made the causal connection between the branch which impaled Plaintiff's eye and Plaintiff's retinal detachment "to a reasonable degree of medical certainty". Therefore, Defendant argues, the motion for a directed verdict should be granted because Plaintiff did not meet their burden.
To be admissible, an expert's opinion, when taken as a whole, must indicate "an acceptable level of certainty" Espinal v. Jamaica Hosp. Med. Ctr., 896 N.Y.S.2d 429, 430 (NY A.D.2d Dept. 2010). At trial, Dr. Landa stated his opinion as to causation. Dr. Landa directly stated that he "would definitely correlate the injury with trauma that he [Plaintiff] got." While Dr. Landa never uses the magic words "reasonable degree of medical certainty," taken as a whole, Dr. Landa's testimony reflected an acceptable level of certainty on which the jury had a basis for finding causation. Absent Defendant's exception to Dr. Landa's word choice, the Court did not misapprehend any matters of fact or law in denying the underlying motion for a directed verdict.
For the above-mentioned reasons, Defendant's motion seeking leave to reargue their motion for a directed verdict, pursuant to CPLR § 2221(d)(2), is denied.
ii. C.P.L.R. § 4404(a) Motion setting aside the verdict as against the weight of evidence.
Defendant next argues, on the same three grounds as discussed above, that pursuant to CPLR § 4404(a), the February 16, 2024, verdict should be dismissed as against the weight of the evidence.
"Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors[.]" Nicastro v. Park, 495 N.Y.S.2d 184, 188 (NY A.D.2d Dept. 1985). To set aside a verdict as against the weight of the evidence, the Court must determine whether the jury could not have reached the verdict on any fair interpretation of the evidence. Nicastro v. Park, 495 N.Y.S.2d 184, 189 (NY A.D.2d Dept. 1985).
Defendants first two contentions, that Defendant had no duty and Plaintiff is a special employee, cannot be the basis of a motion to set aside the jury verdict as contrary to the weight of the evidence because neither argument was considered by the jury. Regardless, based on the labor law sections which were charged to the jury and the evidence at trial regarding the level of control Defendant had over Plaintiff, a fair interpretation of the evidence could lead a reasonable jury to the verdict reached at trial.
Additionally, Defendant argues that the jury verdict is against the weight of the evidence because "Plaintiff failed to demonstrate direct causation between the alleged injury (i.e. a detached retina) and being struck in the eye by an errant branch." As discussed above, Plaintiff's expert Dr. Landa stated their opinion that he "would definitely correlate the injury with trauma that he [Plaintiff] got." A fair interpretation of Dr. Landa's testimony could result in the jury finding causation by a preponderance of the evidence. As such, the branch of Defendant's argument setting aside the verdict as against the weight of the evidence, Pursuant to CPLR § 4404(a) is denied.
iii. C.P.L.R. § 4404(a) Motion setting aside the verdict in the interest of justice.
Finally, Defendant moves, pursuant to CPLR § 4404(a), to set aside the verdict in the interest of justice based on the three arguments detailed above: 1) there is no duty owed by a property owner for injuries caused by risks inherent to the work being performed and that are readily observable; 2) The testimony at trial establishes that Plaintiff is a special employee and as such, the Plaintiff's only recourse is through a Workers Compensation claim; and 3) Plaintiff failed to establish causation at trial and therefore cannot make our a prima facie case.
"A motion pursuant to CPLR § 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise" (Allen v. Uh, 82 A.D.3d 1025, 1025, 919 N.Y.S.2d 179; see Rodriguez v. City of New York, 67 A.D.3d 884, 885, 889 N.Y.S.2d 220). In considering such a motion, "[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected... and 'must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'" (Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 348 N.E.2d 571, quoting 4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.11; see Allen v. Uh, 82 A.D.3d 1025, 919 N.Y.S.2d 179). Morency v. Horizon Transp. Services, Inc., 33 N.Y.S.3d 319, 321 (NY A.D.2d Dept. 2016).
For the above-mentioned reasons, The Court did not err in denying the Defendant's motion for a directed verdict and substantial justice has been done. As such, the branch of Defendant's motion to set aside the verdict in the interest of justice is denied.
In addition to these arguments, The Defendant moves, pursuant to CPLR § 4404(a), to set aside the verdict in the interest of justice due to allegations of juror misconduct. Defendant alleges that after the verdict, Jury Foreperson Camargo spoke with counsel for the parties and stated that he had brief, prior construction experience. It is alleged, in the affirmation of Christopher T. Carr, Esq., that this juror stated that he hoped the damages verdict would "send a message" to property owners, such as the Defendant in this case, and that property owners "need to be held accountable." Mr. Carr's affirmation and Defendant's supporting documents speculate as to the juror's meaning and their motivations and machinations during jury deliberations. Defendant seeks to upend a unanimous jury verdict based on a single affirmation, containing two ambiguous quotations from a single juror and an attorney's impression of a post-verdict conversation with that juror.
Pursuant to CPLR § 4404(a), a jury verdict may be set aside, and a new trial ordered, in the interest of justice, where juror misconduct robs the parties of substantial justice. Not every allegation of juror misconduct affects substantial justice, and thus not every allegation of juror misconduct requires a new trial. LaChapelle v. McLoughlin, 891 N.Y.S.2d 428, 429 (NY A.D.2d Dept. 2009). "No ironclad rule concerning juror misconduct has been formulated... 'In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered[.]'" Alford v. Sventek, 53 N.Y.2d 743, 745, 439 N.Y.S.2d 339, 421 N.E.2d 831) (quoting People v. Brown, 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461, 399 N.E.2d 51. However, Second Department precedent has held that a juror's hearsay statements, relayed to the Court in an attorney affirmation, is insufficient evidence to impeach a jury verdict . Khaydarov v. AK1 Grp., Inc., 173 A.D.3d 721, 723, 103 N.Y.S.3d 104, 106-07 (2019).
Defendant's sole evidence of juror misconduct is the affirmation of an attorney, Mr. Carr, who was present and spoke with jurors after they were released from duty following the February 16,2024 trial. Mr. Carr relays two quotes from Juror Camargo, but no additional evidence is provided. At that time, he failed to bring this issue to the Court's attention. "[A]bsent exceptional circumstances a juror's testimony on affidavit may not be used to attack a jury verdict". Careccia v. Enstrom, 622 N.Y.S.2d 770, 772 (NY A.D.2d Dept. 1995). It follows that the affirmation of an attorney providing hearsay statements from a juror similarly requires exceptional circumstances to justify attacking a unanimous jury verdict. Defendant's affirmation is insufficient to raise the specter of juror misconduct. The statements of Juror Camargo, contained within Mr. Carr's affirmation, are unexceptional and not definitive proof of juror misconduct. Additionally, Mr. Carr's affirmation alone does not prove that the Juror in question was prejudiced against the Defendant or tainted jury deliberation in such a way as to rob Defendant of substantial justice. As such, the branch of Defendant's motion seeking to set aside the verdict in the interest of justice and order new trial, pursuant to CPLR § 4404(a) is denied.
Accordingly, it is hereby
ORDERED that the portion of Defendant 678 ST. MARKS MANAGEMENT, LLC's motion seq. no. 5 for leave to reargue Defendant's motion for a directed verdict, is DENIED; and it is further
ORDERED that the portion of Defendant 678 ST. MARKS MANAGEMENT, LLC's motion seq. no. 5 to set aside the verdict as against the weight of the evidence is DENIED; and it is further
ORDERED that the portion of Defendant 678 ST. MARKS MANAGEMENT, LLC's motion seq. no. 5 to set aside the verdict in the interest of justice is DENIED
This constitutes the decision and order of the Court.