Opinion
April 23, 1998
Appeal from the Supreme Court, Bronx County (Hansel McGee, J.).
Contrary to appellant T.O.M.I.'s contention, Wincaf's liability for plaintiff's damages was solely statutory, pursuant to Labor Law § 240 (1); there was no evidence that Wincaf directed or controlled the work performed by its subcontractors. Thus, the trial court properly granted Wincaf's motion for a directed verdict upon its claim for common-law indemnification against the third-party defendants ( Kelly v. Diesel Constr. Div., 35 N.Y.2d 1, 6-7; Carr v. Perl Assocs., 201 A.D.2d 296; Curtis v. 37th St. Assocs., 198 A.D.2d 62). However, the trial court's finding, necessary to its grant of Wincaf's motion for a directed verdict upon its claim for common-law indemnification, that Wincaf was no more than vicariously responsible for plaintiff's harm, was not consistent with its denial of Wincaf's motion to the extent that that motion sought to have the jury's apportionment of liability against it set aside; Wincaf cannot have been at once entitled to common-law indemnification and, as the jury found, 45% responsible for plaintiff's injury. Accordingly since, as noted, we agree with the trial court that there was no evidence of fault on Wincaf's part, we modify to the extent of vacating the jury's apportionment of fault against Wincaf. Having thus determined that the jury's apportionment of liability is not sustainable, it is necessary to remand the matter for a new trial for the purpose of reapportioning liability as between the defendants other than Wincaf ( see, e.g., Misel v. N.F.C. Cab Corp., 240 A.D.2d 294).
Respecting the amount of the damages, we agree with the trial court that in light of the uncontroverted evidence that plaintiff sustained serious brain injuries, which caused permanent emotional, visual, cognitive and motor dysfunction, and two fractured vertebrae, the jury's award of $150,000 for past pain and suffering deviated materially from what is reasonable compensation ( see, Connor v. City of New York, 178 A.D.2d 359). Nor, given the seriousness and permanence of plaintiff's injuries, do we see any reason to disturb the trial court's vacatur of the jury's plainly inadequate award for future pain and suffering.
We have considered defendant-appellant's remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Ellerin, Tom, Mazzarelli and Saxe, JJ.