Perez v. 2246 Holding Corp.

Full title: PEREZ v. 2246 HOLDING CORP

Court: Supreme Court of the State of New York, Kings County

Date published: Jul 2, 2008

2008 N.Y. Slip Op. 31853 (N.Y. Sup. Ct. 2008)

Opinion

0001683/2004.

July 2, 2008.

LEVY PHILLIPS KONIGSBERG, LLP, Attorneys for Plaintiffs, New York, N. Y.

SILVERSON, PARERES LOMBARDI, LLP, Attorneys for Defendant, New York, N. Y.

SCHER SCHER, P.C., Attorneys for Defendant, CHAMA HOLDING CORP.

DECISION

JAMES G. STARKEY, Judge.

Before the court are defendants' post trial motions in the above entitled matter. The first motion is by defendant 2246 Holding Corp. (hereinafter "2246") seeking to set aside the jury verdict as against the weight of the evidence and dismissing the complaint. Alternatively, defendant seeks to set aside or reduce the past and future pain and suffering awards and the future lost wages award pursuant to CPLR § 4404 or a new trial on the issues of damages unless plaintiff stipulates to a reduced verdict pursuant to CPLR § 4545(a) and Article 50-B.

The second motion is by defendant Chama Holding Corp. (hereinafter "Chama") also seeking to set aside or reduce the jury verdict pursuant to CPLR § 4404 and CPLR § 5501 as against the weight of the credible evidence and excessive in amount. Alternatively, Chama seeks a new trial on the issue of damages. Alternatively, Chama seeks judgment notwithstanding the verdict eliminating the jury's determination of Chama's liability of thirty percent. Finally, Chama seeks complete indemnification from defendant 2246 on its cross claim, urging that any negligence attributable to Chama was passive and vicarious.

FINDINGS OF FACT AND PROCEDURAL BACKGROUND

In or about March, 1997, infant plaintiff Michael Perez moved with his family into 601 West 192^nd Street, apartment 2H, New York, New York. This building was owned by defendant 2246 and managed by Mr. Gary Gartenberg, an employee of defendant Chama. At the time of rental, Mr. Gartenberg agreed to have the apartment painted prior to occupancy and was aware that a child under the age of seven (7) would be occupying the premises.

In August of 1997, plaintiff had a blood test in preparation for kindergarten. This test revealed a blood lead level of 21 ug/dl (micrograms per deciliter), 11 ug/dl above the level considered to be blood poisoning. As a result, the apartment was inspected by the New York City Department of Health in late September, 1997. On October 10, 1997, an Order to Abate was issued and defendant 2246 commenced complete renovations to the apartment. The work was concluded by December, 1997, and by February 1998, plaintiff's blood lead level had dropped to below 10 ug/dl. Thereafter, plaintiff, by his mother and natural guardian commenced the instant action. By the time of trial, plaintiff had reached ninth grade, after having been left back in the third grade.

The parties appeared in Part 6 for trial on September 21, 2007, and on October 4, 2007, the jury returned a verdict in favor of plaintiffs finding defendant 2246 seventy percent liable and defendant Chama thirty percent liable, and awarding the following damages: $250,000.00 for past pain and suffering; $1,575,000.00 for future pain and suffering for plaintiff's life expectancy of sixty three years; and $2,820,000.00 for future loss of earnings for plaintiff's work life expectancy of forty seven years, all of which totals $4,570,000.00.

LAW AND APPLICATION

Motions to set aside the verdict pursuant to CPLR § 4404 as against the weight of the credible evidence

For a court to conclude that a jury verdict is not supported by legally sufficient evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial. See Courtney v. Port Authority of N.Y. N.J., 45 A.D.3d 801, 846 N.Y.S.2d 332 (2^nd Dept. 2007). In considering such a motion, the court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the non-moving party. See Figueroa v. Sliwowski, 43 A.D.3d 858, 841 N.Y.S.2d 677 (2^nd Dept. 2007).

At trial, plaintiff's proof included testimony from plaintiff's mother, a neurologist, and an economist. The evidence introduced included plaintiff's lead based paint test results, neurological testing, and violations for the premises indicating the presence of lead paint in the apartment. Based upon the record, the jury's determination that there was an unsafe condition in the premises which caused the infant plaintiff to suffer lead poisoning was not against the weight of the evidence. See Esteves v. New York City Housing Authority, 266 A.D.2d 502, 698 N.Y.S.2d 724 (2^nd Dept. 1999). Nor was the plaintiff's proof insufficient as a matter of law. Ibid. Therefore, plaintiff's complaint may not be dismissed and defendants request for an order setting aside the verdict, or for a new trial, or for dismissal of the complaint on these grounds is denied. See Padilla v. Jols Realty Corp., 284 A.D.2d 512, 727 N.Y.S.2d 631 (2^nd Dept. 2001).

As to the application of Chama requesting a reduction of its proportionate share of liability from thirty percent to zero, or alternatively, seeking complete indemnification from 2246 on the theory that any negligence attributable to Chama was purely passive, that must also be denied. It cannot be said as a matter of law that Mr. Gartenberg's actions were unrelated to the business of Chama, which the record reflects was to manage apartment buildings in the City of New York. See Brancato v. Dee and Dee Purchasing, 296 A.D.2d 518, 745 N.Y.S.2d 564 (2^nd Dept. 2002). The question of whether a particular act was within the scope of employment is ordinarily one for the jury because it is heavily dependent on factual considerations. See Petrescu v. College Racquet Club, 40 A.D.3d 947, 838 N.Y.S.2d 574 (2^nd Dept. 2007); Piquette v. City of New York, 4 A.D.3d 402, 771 N.Y.S.2d 365 (2^nd Dept. 2004). Even viewing the record in a light most favorable to Chama, there is uncontradicted evidence that Mr. Gartenberg was the building manager and was receiving compensation at all relevant times as an employee of Chama. Further, Mr. Gartenberg was in complete and exclusive control of the management and operation of the apartment building. Thus, it was not inappropriate for the jury to hold Chama jointly and severally liable for plaintiff's injuries. See Guerrero v. Djuko Realty, 300 A.D.2d 542, 752 N.Y.S.2d 694 (2^nd Dept. 2002).

Motions to reduce the verdict pursuant to CPLR § 5501 as excessive It is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury. See Schare v. Welsbach Electric Corporation, 138 A.D.2d 477, 526 N.Y.S.2d 477 (2^nd Dept. 1988). But insofar as defendants' motions pursuant to CPLR § 5501 claim excessiveness of the verdict, the evidence shows that awards in plaintiff's favor are indeed unconscionable. See Torro v. Altman, 97 A.D.2d 819, 468 N.Y.S.2d 697 (2^nd Dept. 1990), lv. den., 62 N.Y.2d 603 (1984). The jury's awards of $250,000.00 for past pain and suffering and $1,575,000.00 for future pain and suffering over a sixty three year period deviate materially from what would be reasonable compensation. See CPLR § 5501(c); Jackson v. Chetram, 300 A.D.2d 446, 751 N.Y.S.2d 551 (2^nd Dept. 2002).

The infant plaintiff was 15 years old at the time of trial and five years old when he moved into the apartment at issue. He was affected with asthma at an early age, required medications for the condition and was hospitalized at the age of six or seven because of complications stemming from asthma. Asthma caused him to be frequently absent from school, including 39 days of absence the year prior to trial. It was conceded by plaintiffs' experts that these absences likely contributed to poor school performance.

Approximately five months after moving into the apartment at issue, plaintiff underwent a standard blood test in preparation for kindergarten, which revealed a blood lead level of 21 ug/dl. However, his blood lead level returned to a level under 10 ug/dl within six months of the original diagnosis.

The evidence concerning the infant plaintiff s pain and suffering was limited. He was required to repeat third grade and received extra help after school in the subjects of math and reading. His mother also stated that he was upset and stayed in his home during the summer after he learned he would be required to repeat the third garde. But when his teacher suggested that her son be placed in a special education program, she refused stating that such a program was for "crazy people" and would not be beneficial to her son — a proposition about which both plaintiff's experts disagreed. But when asked if the infant plaintiff was "upset" as a result of the poor grades he received in eighth grade, she responded that he was not. She also conceded that the infant plaintiff did not exhibit any "bad behavior."

His IQ was 83 (in the low average range) and, though plaintiff s psychology expert suggested that the infant plaintiff has "attention issues," he testified that the plaintiff was able to follow directions throughout the four to five hours of testing performed as part of his examination.

His mother testified that the infant plaintiff had played with standard toys when he was five through seven years old; that he currently had a play station game and also enjoyed playing basketball. The infant plaintiff confirmed to the psychology expert that he enjoyed playing basketball and video games. The expert also noted that plaintiff did not have any self esteem problems and that he aspired to be an engineer or an attorney. Plaintiff also apparently had good peer relationships. He advised the psychology expert that he had friends and plaintiff's pediatric expert conceded that plaintiff did not appear to be reclusive or depressed.

In 2002, plaintiff's parents separated, his father moved to the Dominican Republic and plaintiff's pediatric expert conceded that the separation could have affected the infant plaintiff's focus.

Further, the award for future loss of earnings in the amount of $2,820,000.00 must also be viewed as excessive in light of uncontradicted evidence that the quantity and duration of the lead poisoning suffered by the infant plaintiff would result — at most — in a five or six point reduction in his IQ level and that lead poisoning has not been shown to cause attention deficit hyperactivity disorder.

Accordingly, the court orders a new trial on the issue of damages unless plaintiffs consent to a reduction of the awards for future loss of earnings from $2,800,000.00 to $800,000.00, for past pain and suffering from $250,000.00 to $125,000.00 and for future pain and suffering from $1,575,000.00 to $450,000.00 over a sixty three year period. See Woolfalk v. New York City Housing Authority, 10 A.D.3d 524, 782 N. Y.S.2d 22 (1^st Dept. 2004); Guerrero v. Djuko Realty, supra.

This constitutes the decision and order of the Court. Defendant 2246 is directed to settle order in accordance with this decision.