Opinion
0114538/2003.
April 15, 2008.
DECISION/ORDER
Motion sequence numbers 007 and 008 are consolidated for disposition.
In this action, plaintiff Hugo Nunez seeks to recover damages for serious personal injuries he sustained while working at the premises located at 1020 Port Washington Boulevard in Port Washington, New York on August 8, 2003 when, in the process of removing a two-ton bank vault door, the door loosened from its hinges and fell, crushing the lower portion of plaintiff's right leg, which resulted in the amputation of his right leg below the knee. Plaintiff was 29 years old at the time of the accident and was employed by third-party defendant Diamond Demolition, Inc. ("Diamond").
This was the subject of a Workers' Compensation hearing where the issue of plaintiff's employment was determined.
Defendants Lawrence Levy ("Levy") and LFP 1020 PWB, LLC ("LFP") were the owners of the premises and defendant North Fork Bancorporation, Inc. ("North Fork") was the lessee. North Fork retained defendant/third-party plaintiff Tritec Building Company, Inc. ("Tritec") as the general contractor.
Diamond, a demolition subcontractor, was hired to perform various demolition work at the site, which ultimately included the removal of the vault door.
Originally, the Complaint contained causes of action pursuant to Labor Law §§ 240(1), 241(6) and 200. However, the plaintiff voluntarily discontinued and withdrew his claim pursuant to § 240(1) against all the defendants, and this Court, by Decision and Order dated May 18, 2006, dismissed plaintiff's claim pursuant to § 200 against all the defendants. However, the Court found that there were issues of fact as to whether any of the defendants violated section 23-3.3 of the Industrial Code, and thus denied that portion of the motion seeking judgment dismissing plaintiff's claim pursuant to § 241(6) .
None of the parties ever filed a Notice of Appeal from that Decision/Order or moved to renew or reargue, and counsel for Tritec, in its papers, never denied that the activity in issue constituted demolition work.
The case was tried before this Court and a jury in March of 2007, and the jury rendered a verdict for the plaintiff on March 12, 2007 finding that there were violations of Industrial Code Rules 23-3.3(b)3 and 23-3.3(c). The jury awarded plaintiff $5,000,000 for past pain and suffering and $5,000,000 for future pain and suffering.
Defendants now move this Court (under motion sequence number 007) for an Order: 1) setting aside the verdict and directing judgment as a matter of law in favor of the defendants on the grounds that a) the work engaged in by plaintiff was not a Labor Law protected activity and/or the Industrial Code provisions relied upon by plaintiff are inapplicable to the within action; b)evidence of Tritec's post-accident opinions should not have been admitted into evidence and c) plaintiff's expert Ronald B. Dukell should not have been permitted to testify; and 2) granting a new trial as to damages unless plaintiff stipulates to substantial reductions in the awards for pain and suffering and structuring a judgment in accordance with CPLR Article 50-B.
Third-party defendant Diamond moves (under motion sequence number 008) for an Order pursuant to CPLR § 4404 setting aside the verdict and granting judgment dismissing the Complaint, or, in the alternative, for a new trial or a substantial reduction in the jury's award.
Most, if not all, of these arguments were made during the trial and/or after the verdict was rendered, but the Court permitted the parties to make whatever motions they chose on papers.
Demolition Work
Defendants argue in the first instance that the work plaintiff was engaged in at the time of his accident does not fall within the definition of "demolition work" as set forth in the Industrial Code.
12 NYCRR 23-1.4(b) (16) (Rule 23 of the Industrial Code) defines demolition work as "[t]he work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment." Defendants argue, based on the testimony adduced at trial and the Exhibits admitted into evidence during the trial, that Diamond's demolition work on the site was completed no later than July 18, 2003 when they returned to remove metal decking from the roof, and that renovations had already been underway for at least one week prior to that time, continuing through the date of plaintiff's accident.
The testimony at trial revealed that although North Fork had considered replacing the vault door from the beginning of the project, there was no firm plan to do so in place until after the door had been damaged during an earlier stage of the demolition work. North Fork then proceeded to get proposals to remove the vault door from a few companies, including Diamond Demolition, Inc., which was eventually retained to do the job.
When the Diamond workers arrived at the site to remove the door on August 7th, Timothy Browne, Tritec's project supervisor, sent them home because they did not have hard hats. When they returned on August 8th again without hard hats, Browne purchased them for the men.
Benny Chicco, the foreman from Diamond, determined the means and methods by which they were going to remove the door — namely, to cut the top hinge of the door first, then the bottom hinge and let the door fall on some Bobcat tires they had put down — and Browne placed yellow caution tape around the area to protect the other workers.
One worker named Juan started to cut the top hinge with a cutting device while Benny Chicco was sitting or reclining on top of the vault. Plaintiff was asked to go out to the truck and get Benny's cigars. When plaintiff returned, and as he was handing the cigars to Benny, the door fell suddenly, after only the top hinge was removed, and caught plaintiff's right leg.
Defendants argue that the vault door was removed after demolition operations had been completed and while construction was underway and thus was post demolition work which is not protected activity under Labor Law § 241(6). Defendants further argue that the work plaintiff was retained to perform did not in any way affect either the structural integrity of the bank or the vault itself, but rather was renovation work which is not covered under Labor Law § 241(6). See, Sparkes v. Berger, 11 A.D.3d 601 (2nd Dep't 2004); Quinlan v. City of New York, 293 A.D.2d 262 (1st Dep't 2002); Bombard v. Central Hudson Gas Elec. Co., 229 A.D.2d 837 (3rd Dep't 1996); lv. to app. dism. in part, den. in part 89 N.Y.2d 854 (1996); Zuniga v. Stam Realty, 169 Misc.2d 1004, (Sup.Ct., Queens Co. 1996), aff'd 245 A.D.2d 561 (2nd Dep't 1997), lv. denied 91 N.Y.2d 813 (1998).
Plaintiff, however, argues that in their contemporaneous work records, all introduced into evidence at trial, Tim Browne and North Fork's project manager, Robert Cornell, both referred to the work in question as "demolition". In fact, Mr. Cornell testified that he was at the job site on August 7, the day before the accident, for a regular weekly progress meeting with Mr. Browne and others and wrote in his notes "Demo on safe door started." (emphasis supplied)
Demolition, consistent with the Industrial Code definition, necessitates the total or partial dismantling or razing of a building or structure . . . What the rule envisions is some structural change of the building, in whole or in part, i.e., some interference with, alteration or change in the structural integrity of the building, sufficient to constitute a dismantling or razing of the building, either in whole or in part.
Zuniga v. Stam Realty, supra at 1010.
The task being performed at the time of plaintiff's accident was not the mere "removal of a door" as urged by defendants, but rather the demolition of a two-ton steel vault door. This was clearly an "interference with, alteration or change in the structural integrity" of the Bank and was "work incidental to or associated with the total or partial dismantling" of the Bank, even if most of the other demolition work had already been completed and, thus, was protected work under Labor Law § 241(6). See, Pino v. Robert Martin Company, 22 A.D.3d 549 (2nd Dep't 2005).
Moreover, just because plaintiff was not part of the original demolition crew on site on behalf of Diamond and did not have experience in construction or demolition does not mean that the work he was engaged in on August 8, 2003 was not "demolition work" within the contemplation of the statute.
Industrial Code Provisions
Defendants next argue that the Industrial Code provisions relied upon by plaintiff are not applicable to the facts of this case. The two relevant sections of the Code are Rule 23-3.3 (b)3 and Rule 23-3.3(c) which provide as follows:
23-3.3 Demolition by hand.
(b) Demolition of walls and partitions.
* * *
(3) Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.
* * *
(c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.
Rule 23-3.3(b) (3)
Defendants argue that this section is not applicable here because this case did not involve the demolition of a wall or a partition.
Defendants further contrast this Rule to Rule 23-3.4 which deals withmechanical means of demolition as opposed to demolition by hand, and provides as follows:
(b) Structural stability. Walls, chimneys and other parts of any building or other structure shall not be left unsupported (emphasis supplied) or unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.
The word "unsupported", while included in the section relating to mechanical means of demolition, is omitted from section 23-3.3(b)(3) which deals with demolition by hand, which was the procedure being used in this case. Therefore, defendants argue that the testimony of plaintiff's expert Ron Dokell that the door should have been "supported' while it was being removed, lacked adequate foundation in that Mr. Dokell was relying upon the wrong Industrial Code provision. Finally, defendants argue that the
Industrial Code speaks in terms of guarding against collapse or weakening "by wind pressure or vibration", which is not relevant to the facts here.
Plaintiff argues that the door was part of the wall, as well as part of a structure. Plaintiff further contends that Mr. Dokell's interpretation of the term "guarding" to include, among other things, the concept of utilizing some sort of support for the door to prevent it from falling when the top hinge was cut was reasonable given Webster's Dictionary's definition of "guard" as "to protect from danger . . . to take precautions . . . a protective device."
In addition, plaintiff asserts that both Tim Browne and Robert Cornell testified that some type of a device, such as a hoist, should have been used to guard or support or hold the vault door while it was being demolished.
After reading all the papers submitted including the many cases cited, and considering the oral argument held on the record on July 24, 2007 this Court finds that Industrial Code section 23-3.3(b) (3) is not applicable to the facts of this case as that section is limited to the demolition of "walls and partitions"; the two-ton steel vault door at issue in this case was not a wall or partition.
Rule 23-3.3(c)
Defendants argue that this section also does not apply to the facts of this case because the Industrial Code does not require that the material actually being removed (i.e. the vault door) must be shored or braced or secured against collapse, see, Nobre v. Nynex Corp., 2 A.D.3d 602 (2nd Dep't 2003), but rather that those portions of the building not being demolished should be shored or braced against fall or collapse.
Defendants have submitted an Affidavit from Joseph C. Cannizzo, a New York State registered professional engineer, in support of their position, but plaintiff opposes its consideration since Mr. Cannizzo did not testify during the trial. Moreover, plaintiff contends that an expert cannot testify as to what a particular statute means or what the drafters intended, since those are legal issues for the Court to resolve.
Although New York courts permit expert testimony on the question of whether a certain condition or omission was in violation of a statute or regulation ( see Dufel v Green, 84 NY2d 795 [1995]; Roux v Caiola, 254 AD2d 182, 183 [1998]; lv denied 93 NY2d 803 [1999]), this rule does not authorize expert testimony regarding the meaning and applicability of the law which is the province of the court (citation omitted).
Franco v. Jay Cee of New York Corp., 36 A.D.3d 445, 448 (1st Dep't 2007).
The third-party defendant also argues that this section requires continuing inspections by a "designated person" to detect any hazards from weakened or deteriorated floors or walls or from loosened material. Industrial Code § 23-1.4(17) defines a designated person as "[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty." Diamond contends that Benny Chicco was an experienced worker and thus his presence as a "designated person" complied with the requirements of the Industrial Code. Counsel for Diamond argues that Mr. Dokell added a competency requirement to the definition of "designated person" which was not imposed by the Department of Labor. Nonetheless, Diamond asserts that Mr. Chicco fit within the Code definition of a "competent" person — one who is "qualified by training and/or experience to perform a particular task or duty" ( 12 NYCRR 23-1.4) — since he was an experienced demolition worker who had supervised the crew involved in the prior demolition work that was done on the project.
Further, Diamond contends that there was no protracted hazard at the site; only upon the cutting of the hinge by Juan, was an immediate hazard created, and thus Rule 23-3.3(c) is not applicable.
Finally, Diamond argues that plaintiff was not actually working in the area but was running an errand to get Benny Chicco's cigars from his truck while Juan was cutting the hinge. Therefore, any violation of § 23-3.3 (c) (which defendants argue did not exist) would not have applied to this plaintiff.
Plaintiff contends that Tritec and the other defendants did not advance the claim that Chicco was the "designated person" or inspector required under this section. There was no testimony that Mr. Chicco was "selected and directed by an employer or his authorized agent to perform [this] specific task or duty" and Mr. Chicco was not called as a witness to shed any light on this issue. Nor was Mr. Cipolla, Diamond's principal, who was in the Courtroom for at least two days during the trial, called to testify on this (or any other) issue.
Plaintiff also argues that it is inconceivable that defendants could truly argue that any person entrusted with the responsibility of inspecting the site to detect hazardous conditions could satisfy the Code's requirement if they were not competent.
In opposition to defendants' arguments that they cannot be held liable for failing to secure the door when that was the very item that was being demolished, plaintiff argues that the main thrust of § 23-3.3(c) is to mandate that a person be designated to detect any hazards "to any person resulting from . . . loosened material" and that "[p]ersons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."
There was no evidence at the trial that Mr. Chicco was ever "selected or directed" by his employer or any "authorized agent" to be the "designated person" to conduct the required continuing inspections. Even if Mr. Chicco can be said to have been the "designated person", he obviously failed to detect the hazard which led to the serious injury sustained by Mr. Nunez.
This Court finds that Industrial Code § 23-3.3(c) does apply to the facts of this case and, therefore, that this question was properly submitted to the jury for determination at trial. The jury determined by a verdict of 6-0 that there was a violation of Industrial Code Rule 23-3.3 (c), that this violation constituted a failure to use reasonable care, and that this failure was a substantial factor in causing or contributing to Mr. Nunez' injuries.
Tritec's Post-Accident Reports and Letter
Defendants next argue that Tritec's two "incident reports" — an "Accident Report" prepared by Mr. Browne on August 8, 2003, the date of the accident (plaintiff's Trial Exhibit 14) and an Accident Investigation Report Form prepared by Ken Gomez, a field supervisor for Tritec, also on August 8, 2003 (plaintiff's Trial Exhibit 15) — and a letter from Kevin Woods, the General Superintendent/Safety Officer of Tritec, dated August 8, 2003 and sent to John Cipolla of Diamond, setting forth the results of the investigation he conducted of the accident (plaintiff's Trial Exhibit 12) should not have been admitted into evidence without some redaction.
The parties stipulated during the trial that the two incident reports were admissible as business records.
Specifically, defendants argue that a) Question No. 20 of Mr. Browne's report which asks for "Actions to prevent recurrence" and to which Mr. Browne wrote "SOME TYPE OF LIFT TO HOLD DOOR UP", and b) the portion of Mr. Gomez' report which commented that the "door was not supported properly to take door down" should have been redacted because they were equivalent to evidence of a subsequent remedial measure and/or post-accident repair by a defendant which is not admissible absent specific circumstances, not applicable in this case. Defendants make the same argument as to Mr. Browne's testimony regarding the method chosen by Diamond to remove the vault door which he said, in hindsight was "apparently . . . unsafe."
Defendants further contend that Mr. Woods' letter was inadmissible in its entirety as it was not an incident report (CPLR § 3101[g]), it was not prepared based upon a personal investigation and it was evidence of a subsequent remedial measure and/or post-accident repair.
It is certainly "well settled that evidence concerning post-accident repairs is generally inadmissible absent certain exceptions [not relevant in this case] and is never admissible as proof of admission of negligence (citation omitted)." Fernandez v. Higdon Elevator Co., 220 A.D.2d 293 (1st Dep't 1995). However, these reports and the letter were not evidence concerning post-accident repairs but rather were, as testified to by Mr. Browne during trial, reports prepared by Tritec employees in the ordinary course of their business after the occurrence of an on-the-job injury, and were essentially post-investigation evaluations of what caused the accident and how the incident occurred.
Even if all the statements in the report and the letter were not based on the personal knowledge of the maker, "[t]he fact that a particular admission is apparently not based on personal knowledge of the occurrence described, but rather only upon information gleaned from others, is no bar to its admission into evidence." Brusca v. El Al Israel Airlines, 75 A.D.2d 798, 800 (2nd Dep't 1980).
Accordingly, this Court finds that these two incident reports and the letter were properly admitted into evidence.
Testimony of Plaintiff's Expert — Ronald B. Dukell
Defendants argue, as they did during the trial, that Mr. Dokell should not have been permitted to testify on the grounds that 1) the Industrial Code provisions relied upon by plaintiff applied only to "hand demolition" and not mechanical demolition; and 2) plaintiff's expert exchange for Mr. Dokell failed to disclose that Mr. Dokell would be testifying that mechanical methods should have been used to remove the door, in violation of CPLR § 3101(d) which provides, in relevant part, that a party who expects to call an expert at trial should disclose "in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion." Therefore, defendants argue Mr. Dokell should have been precluded from testifying that mechanical means should have been used, or at the very least, the matter should have been adjourned to allow the defendants to properly prepare for cross-examination and/or to produce their own liability expert to refute Mr. Dokell's opinion in this regard.
Third-party defendant also argues that this Court denied the defense the right to cross-examine Mr. Dokell as to violations of the Industrial Code and that Mr. Dokell impermissibly rewrote the sections of the Industrial Code to suit his purposes. Specifically, counsel for Diamond contends that Mr. Dokell was allowed to give testimony concerning New York's Industrial Code although he had very limited experience with demolition operations in New York State subject to the Code. Moreover, he contends that Mr. Dokell incorrectly testified that various sections of the Federal OSHA regulations contained language substantially similar to the language of Industrial Code §§ 23-3.3(b) (2) and (c), which counsel claims it does not.
This Court will not deal with third-party defendant's arguments as to section 23-3.3(b)(2), since this Court has already ruled that this section is not applicable.
As to § 23-3.3(c), counsel argues that Mr. Dokell testified that the section was violated because there was no "designated person" making the inspections and that Mr. Browne of Tritec should have been that person. Diamond contends that since Mr. Chicco was overseeing the removal of the vault door and allegedly met the definition of a "designated person" as set forth in the Industrial Code, Mr. Dokell's opinion was outside the scope of the Industrial Code and "constituted testimony as to the meaning of rather than simply the violation of the Industrial Code."
Plaintiff argues that Mr. Dokell repeatedly testified on cross-examination that there was no evidence that Mr. Chicco had ever been designated to make the inspections.
Furthermore, plaintiff argues that neither the defendants nor the third-party defendant ever asked for an adjournment because of the proposed expert testimony and that they had each served their own § 3101(d) Expert Notices for an engineering expert prior to the trial — defendants for Mr. Cannizzo, whose Affidavit was referred to above, and Diamond for Howard Edelson. Plaintiff asserts that neither of the Expert Notices offered any opinions as to whether the workers had been properly or safely protected, the work properly done or how the pertinent Industrial Code sections had been complied with, but rather offered to elicit legal opinions from the expert witnesses. Neither defense counsel chose to call their proposed experts.
After considering all the papers submitted and the arguments made at the oral argument on the record on July 24, 2007, and for all the reasons stated on the record during the trial, this Court denies that portion of defendants' motion and third-party defendant's motion which argue that Mr. Dokell should have been precluded from testifying. He testified as to his experience with demolition in New York and elsewhere, and the jury was charged to consider his testimony based on his qualifications.
Furthermore, his testimony was restricted to whether the manner in which the work was done was in violation of the particular Industrial Code Sections (see, Franco v. JayCee of New York Corp., supra) and defendants and third-party defendant were permitted to cross-examine Mr. Dokell as to that issue. It was defense counsels' choice not to produce their own expert witnesses, although their § 3101(d) disclosures had been provided.
Missing Witness Instruction as to John Cipolla
Third-party defendant Diamond also argues that this Court should not have given a missing witness instruction as to Mr. Cipolla since Diamond was not on notice that plaintiff expected Mr. Cipolla to be called as a witness, and there was no testimony that Mr. Cipolla could have been expected to give that would have impacted on the critical issues in this case, i.e., whether the specific portions of the Industrial Code were violated.
The party seeking to have the Court charge the missing witness charge (PJI 1:75) has the burden to notify the Court of its request as soon as praticable, and must establish "that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party (citations omitted)."People v. Gonzalez, 68 N.Y.2d 424, 427 (1986). The charge "derives from the commonsense notion that 'the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause' (citations omitted)." Id. at 427; see also, People v. Savinon, 100 N.Y.2d 192, 196 (2003). "[T]he issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid 'substantial possibilities of surprise' (citation omitted)." People v. Gonzalez, supra at 428; see also, Spoto v. S.D.R. Constr., 226 A.D.2d 202, 204 (1st Dep't 1996).
Diamond argues in the first instance that plaintiff waited until Diamond had rested to make his supplemental request for the missing witness charge, and thereby forfeited any right he may have had to the charge.
Diamond relies on the Spoto case, supra, for this proposition although in that case the Trial Judge apparently made a sua sponte determination to give a missing witness charge as to defendant's medical witness, despite the fact that such a request had not appeared in plaintiff's requests to charge.
Here, however, there is no dispute that plaintiff rested his case on March 9, 2007, and neither defendants nor the third-party defendant put on any witnesses. The Court then held a charge conference with the parties that same day at which plaintiff, for the first time, made his request. Plaintiff contends that he was not aware until that moment that Diamond would not be calling Mr. Cipolla as a witness, although Diamond's counsel and this Court seemed to recall that Diamond's decision not to have Mr. Cipolla (or any other witness) testify had been discussed earlier in the week during the trial when Mr. Cipolla was in the Courtroom on two separate occasions and was even "introduced" to the jury during one of the defendant's questioning of Mr. Browne.
Thus, there is no issue here as to the availability of Mr. Cipolla; the issues are whether plaintiff established that Mr. Cipolla could give material evidence and whether he would have been expected to give non-cumulative testimony favorable to the party against whom the charge was sought, i.e., Diamond. See, People v. Savinon, supra; People v. Gonzalez, supra.
There was no evidence that Mr. Cipolla was at the site of the accident or had any knowledge of the specifics of the events that transpired leading up to plaintiff's accident, and thus Diamond argues that he was not in a position to give material evidence, probative of any facts at issue. Diamond also claims that it was only surmise on plaintiff's part to claim that because he was Diamond's principal, Mr. Cipolla must have had knowledge of facts or events not already testified to by others.
Plaintiff argues that since Mr. Cipolla personally bid the job, including a separate bid specifically involving the vault door, and personally signed the contract on behalf of Diamond with Tritec, he would have been able to testify as to whether he had inspected the job site, what his plan was for the work to be done and what steps, if any, he was taking to ensure compliance with the contract's numerous safety provisions. Plaintiff claims he could also have shed light on how he had come to hire Benny Chicco and the other workers, what training and experience he was aware that Mr. Chicco and the other workers had in removing vault doors and whether he had selected or directed Mr. Chicco to be the "designated person" to detect hazards on the job.
Accordingly, this Court charged the jury, in connection with PJI 1:75, that they could consider that Diamond Demolition did not call its principal, John Cipolla, to testify on the question of his knowledge of the project at Northfork Bank, including the methodology that was to be used to remove the vault door and the training that was given to its workers, and that Diamond offered no explanation for not calling Mr. Cipolla although he was in the Courtroom on two separate days during the trial.
It is certainly reasonable to expect that a party will call one of its corporate officers to testify at trial. See, e.g., Spitzer v. Born, Inc., 194 A.D 739 (1st Dep't 1921).
In this case, Diamond did not call any witnesses on its behalf.
Therefore, based on all the papers submitted and for the reasons stated herein and on the transcript during the Charge Conference held on March 9 and 12, 2007, this Court denies that portion of the motion by Diamond which seeks a new trial on the grounds that this Court gave a missing witness charge as to John Cipolla.
Tritec's Indemnification claim against Diamond
Diamond argues that this Court erred in directing a verdict against it on Tritec's common law indemnity claim because there was evidence of active negligence and control over the work on the part of Tritec.
This Court issued a decision on May 18, 2006 which, inter alia, granted that portion of Tritec's motion which sought dismissal of plaintiff's claim against it pursuant to Labor Law § 200 on the ground it did not supervise, control or direct plaintiff's work.
Specifically this Court held that
[t]he papers submitted herein are devoid of any evidence that defendant Tritec, the general contractor, "supervised, controlled or directed the performance of plaintiff's job." (O'Sullivan v, IDI Construction Co., Inc., _A.D.2d_, 2006 WL 870960 [1st Dep't]), and specifically, there is no evidence that Tritec was involved in the actual removal of the vault door or in determining the means and method for performing that portion of the work. Accordingly, this branch of Tritec's motion is granted.
This decision was never appealed. However, Diamond argues that it cannot be bound by this decision because it was not represented by counsel at that time and thus did not participate in the motion. (See, Manufacturer's and Traders Trust Co. v. Murdevski, 126 A.D.2d 952 (4th Dept. 1987).
However, it appears that Diamond had previously appeared in this case by counsel, Sunshine Feinstein, LLC, who participated in at least one conference and served some discovery demands, both in February 2004. Sunshine Feinstein then moved by Order to Show Cause to be relieved as counsel for Diamond, which motion was granted by this Court on June 15, 2004. In his Affirmation in Support of his Order to Show Cause, Mr. Sunshine annexed a copy of a Stipulation dated April 26, 2004, signed by Mr. Cipolla as President of Diamond, in which Diamond, inter alia, consented to the withdrawal, and specifically recognized "that a corporation can only be represented by counsel and it will be DIAMOND DEMOLITION, INC.'s responsibility to retain new counsel to represent them . . ."
The summary judgment motions were served in July 2005 upon all parties, including Diamond.
"'Where a party appears in a proceeding and judgment is subsequently entered against him based on a default upon a motion for summary judgment, the judgment is on the merits' ( Boorman v. Deutsch, 152 AD2d 48, 53, lv dismissed 76 NY2d 889)." Academic Health Professionals Insurance Association v. Lester, 30 A.D.3d 328, 329 (1st Dep't 2006).
Accordingly, Diamond is bound by this decision as "law of the case."
It is further Diamond's position that since there was evidence of negligence on the part of Tritec in causing plaintiff's accident presented at the trial through the testimony of Tim Browne, the Court should not have directed a verdict of common law indemnification against it, but rather should have allowed the jury to apportion fault between Tritec and Diamond.
Specifically, Diamond argues that Mr. Browne testified that despite his status as project manager, he was unfamiliar with how a vault door should be safely removed and relied solely on the statements of Benny Chicco as to the method to be used to remove the door. Diamond further contends that Mr. Browne failed to properly monitor the process used by Diamond, all with the knowledge that there was a risk of injury during the operation. Furthermore, Diamond asserts that by refusing to allow the Diamond employees to work without hard hats the day before plaintiff's accident, Mr. Browne demonstrated that Tritec had taken an affirmative role in maintaining a safe work environment and in exercising control over the work being performed, and that it did not satisfy its obligation to take proper precautions by merely requiring hard hats to be worn by the workers and placing yellow safety tape around the work site.
Tritec argues to the contrary that Mr. Browne was careful to ensure that Diamond's employees were provided with safety equipment and to barricade the area around the vault door with caution tape to keep other contractor's employees away from the door while it was being removed.
It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law (citations omitted).
Lombardi v. Stout, 80 N.Y.2d 290, 295 (1992).
Similarly, where the dangerous condition arises from a subcontractor's methods or materials, 'recovery against the . . . general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation [citations omitted]' ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 [1993] . . . other citation omitted).
Reilly v. Newireen Associates, 303 A.D.2d 214, 219 (1st Dep't 2003);lv. to app. den. 100 N.Y.2d 508 (2003).
There was no evidence adduced at the trial that Tritec "exercised direct supervisory control over the manner in which the activity [which] caused the injury was performed (citations omitted)." Burkoski v. Structure Tone, Inc., 40 A.D.3d 378, 380-381 (1st Dep't 2007). While Mr. Browne
may have had overall responsibility for the safety of the work done by the subcontractors, such duty to supervise and enforce general safety standards at the work site was insufficient to raise a question of fact as to its negligence (citations omitted). Absent any evidence that [the general contractor] gave anything more than general instructions as to what needed to be done, as opposed to how to do it, these entities cannot be held liable under Labor Law § 200 or for common-law negligence (citation omitted).
O'Sullivan v. IDI Constr. Co., 28 A.D.3d 225, 226 (1st Dep't 2006),aff'd 7 N.Y.3d 805 (2006). See also, Hughes v. Tishman Construction Corp., 40 A.D.3d 305 (1st Dep't 2007).
For all the reasons cited above, this Court finds that it did not err in directing a verdict against Diamond on Tritec's common law indemnity claim and by not asking the jury to apportion fault between Tritec and Diamond.
Damages
Finally, the defendants and third-party defendant argue that the jury's verdict on damages must be set aside as excessive or significantly reduced.
"An award is excessive if it deviates materially from what would be reasonable compensation (see CPLR 5501 [c]) . The standard for that determination is set by judicial precedent, not juries." Paek v. City of New York, 28 A.D.3d 207, 209 (1st Dep't 2006), lv. to app. den. 8 N.Y.3d 805 (2007). "Appellate review under CPLR 5501(c) has also, alternatively, determined 'reasonableness' by whether or not the jury's decision is in any way supported by record evidence (citations omitted)." Donlon v. City of New York, 284 A.D.2d 13, 16 (1st Dep't 2001).
Plaintiff Hugo Nunez was 29 years old on August 8, 2003 when a two-ton steel bank vault door fell on him, crushing the lower portion of his right leg. He testified that he saw right away that he did not have his foot anymore and that the pain was very bad, very "powerful", causing him to scream and to cry. He was pinned under the door for 30 — 60 minutes and then taken by ambulance to North Shore Hospital where it was decided that the damage to his leg was so severe that it had to be amputated below the knee. He remained in the hospital for thirteen days during which time he was in pain and began to learn to walk with crutches. He then began rehabilitation in Glen Cove and was eventually fitted for a prosthetic leg. At the time of the trial he was on his third prosthetic leg, and there was testimony from the prosthetist, Sal Martella, that he will need to be fitted for a replacement leg every year and a half or so for the rest of his life. He now lives with his aunt, still has pain and has to take the prosthetic leg off every night, and put it on again every day morning. If he needs to get up at night he uses crutches, although he testified that early on he would sometimes fall down, forgetting momentarily that he was missing his leg, and need to call out for help to get up.
He further testified that he can no longer play sports like he used to and that his friends don't call him so much anymore. In addition, it is very hard for him to meet women or be social like he was before the accident.
As serious and tragic as this injury is, based upon a review of the trial testimony, and after reading all the papers submitted by counsel, hearing oral argument on the motions and reviewing the cases cited by counsel, this Court determines that the amount of the verdict in this case does deviate materially from what would be reasonable compensation for this injury, given Mr. Nunez' relatively good recovery.
Therefore, this case is set down for a new trial on damages unless plaintiff stipulates, within 30 days of service of a copy of this order with notice of entry, to accept damages for past pain and suffering, including loss of enjoyment of life, from August 8, 2003 (the date of the accident) until March 12, 2007 (the date of the verdict) in the amount of $2,500,000, and damages for future pain and suffering, including the permanent effect of the injury for 43 years from March 12, 2007, in the sum of $4,000,000.
This constitutes the decision and order of this Court.