Opinion
TS-300128-09/KI.
Decided April 23, 2010.
David J. DeToffol, Esq., DAVID J. DeTOFFOL, ESQ, PC, New York, New York, Attorney for Plaintiff OSMAN UGUR.
Steven A. Adler, Esq., LAW OFFICES OF EDWARD GARFINKEL, Brooklyn, New York, Attorney for Defendants 140 BROADWAY PROPERTY, LLC; 140 BW, LLC; 140 BROADWAY, LLC; MSDW 140 BROADWAY PROPERTY, LLC.
Robert J. Farley, Esq., FARLEY, GLOCKNER HALPERN, LLP, Mineola, New York, Attorney for Defendant SCHINDLER ELEVATOR CORPORATION.
Upon the foregoing cited papers, defendant SCHINDLER ELEVATOR CORPORATION ("SCHINDLER"), moves for an order, pursuant to CPLR § 4401, 4404 and 5501, dismissing the action on the grounds that OSMAN UGUR ("Plaintiff") has failed to make a prima facie case, and setting aside the jury's awards as being excessive. Defendants 140 BROADWAY PROPERTY, LLC; 140 BW, LLC; 140 BROADWAY, LLC; MSDW 140 BROADWAY PROPERTY, LLC ("140 BDWY") move for an order, pursuant to CPLR § 4044(a), directing a judgment against SCHINDLER on its contractual and common law indemnification claims; setting aside the jury verdicts on liability and damages, and granting new trials for same, on the grounds that they are against the weight of the evidence.
This personal injury action was commenced by Plaintiff to recover damages from Defendants for injuries he allegedly sustained on October 17, 2003 while working as a janitor in a building located at 140 Broadway in Manhattan. According to the Verified Bill of Particulars, Plaintiff's claimed injuries included bulging discs at the C2-C3, C4-C5, C6-C7, L4-L5 levels, a herniated disc at C5-C6, and strain/sprain of the cervical and lumbar spines, which resulted in a significant limitation of range of motion accompanied by severe pain.
SCHINDLER and 140 BDWY will be collectively referred herein as "Defendants."
The record reflects that at the time of the incident, the building was owned by 140 BDWY.
During the liability phase of the bifurcated trial, Plaintiff testified that on the day in question, he boarded a freight elevator on the 41st floor with a cart of cleaning supplies and pressed the button for the 40th floor. According to Plaintiff, the doors closed, and the elevator suddenly descended at a very fast speed, stopped abruptly, and opened to a brick wall. The cab's panel read "39th floor." Plaintiff, then age 56, recollected that he pressed the panel's button for the 41st floor. The cab returned him to that level, where he then exited.
Plaintiff testified in his native Turkish language, which was translated into English byan official court interpreter.
After all parties rested, SCHINDLER and 140 BDWY moved for directed verdicts to dismiss Plaintiff's case. 140 BDWY additionally moved for the same relief against SCHINDLER on its contractual and common law indemnification claims. This Court denied all applications with leave to renew. The jury subsequently returned its verdict in favor of Plaintiff, determining that the elevator car was not reasonably safe; and that Defendants' negligent maintenance of the elevator was a substantial factor in causing the accident. Fault was equally apportioned between the Defendants.
Thereafter, SCHINDLER moved for judgment notwithstanding the verdict. 140 BDWY joined the application, and renewed its prior motion on its indemnification claims. Both motions were denied with leave to renew at the conclusion of the damages phase of the trial.
The trial on damages concluded with a jury verdict in Plaintiff's favor, totaling, $1,554,000, which included the following awards: $300,000 in past pain and suffering, $700,000 in future pain and suffering over a period of 16 years, $312,000 in past loss of earnings, $208,000 in future loss of earnings over a period of 4 years, and medical expenses of $34,000 stipulated to by the parties. 140 BDWY and SCHINDLER subsequently renewed their prior motions. All parties were directed to submit supporting papers on their respective positions.
THE JURY'S VERDICT AS TO LIABILITY
With regard to this issue, a review of the papers submitted discloses that 140 BDWY adopts the same position as SCHINDLER. In the interest of brevity, their arguments are consolidated below.
Defendants challenge the jury's verdict as being against the weight of the evidence, claiming that Plaintiff failed to prove a prima facie case of direct negligence. Defendants state there was no evidence that they had prior notice of the elevator's malfunctioning. Defendants refer to the deposition and trial testimony of Carl Lettich, a Silverstein Properties employee, who was the Building Manager at 140 Broadway on the day in question. During his examination before trial ("EBT"), Mr. Lettich testified that he would notify SCHINDLER if there were any elevator problems. At trial, a letter from SCHINDLER to him, was admitted into evidence, which reflected that SCHINDLER received a service call after hours regarding a passenger trapped in an elevator, and that its full time resident elevator mechanic, Aldwin Bobb, examined the elevator, found no problems, and returned the car to service.
In addition, Defendants cite sections of Mr. Bobb's deposition and trial testimony. Mr. Bobb testified, at trial, that on the day before the incident, he cleaned and lubricated the brake linkage after observing that it was sticking. Mr. Bobb added that it was a normal occurrence, and that the condition would prevent an elevator from leaving the floor. As a result of his testimony, Defendants assert that there was no evidence of what caused the elevator to drop.
Defendants proceed to challenge this Court's charge of res ipsa loquitur on the grounds that the first prong of the doctrine — "The event must be the kind which ordinarily does not occur in the absence of negligence," was not established by Plaintiff. Defendants aver that Plaintiff needed expert testimony to satisfy this prong because the jury's lay knowledge would be insufficient to determine this issue. Defendants point out that Jon Halpern, its expert engineer and elevator designer, testified that sticking brakes would have an effect on the elevator's movement, particularly at the floor level, but would not cause it to travel at high speeds. Defendants further argue that res ipsa loquitur can not be used as a basis for liability against them because Mr. Halpern's uncontroverted testimony reflected that the elevator drop could have been caused by non-negligent factors as follows:
"It could be several things. It could be a glitch in the power coming in from Con Edison. It could be a wire inside a traveling cable that starts to brake and causes disruption of a circuit, an operating circuit, which will cause it to stop, and then re-make-up. It could be a contact failure. It could be the failure of a solid state board that fails for the first time. But it does not have to be the cause of negligence or failure to maintain in any way."(Trial Record p. 266/ lines 7-15)
In opposition, Plaintiff maintains that the court did not err in submitting the issue of liability to the jury. Specifically, his testimony regarding the elevator drop established the elements required to charge res ipsa loquitur, which permitted the jury to infer negligence. Plaintiff notes that the elevator accident was a "far-from-ordinary event," which he did not contribute to, and that Mr. Lettich's and Mr. Bobb's testimony substantiated that the elevator was in Defendants' exclusive control and possession.
Plaintiff relies on Gaspard v. Barkly Coverage Corp, 65 AD3d 1188, 1189 [2d Dept 2009], where the Appellate Division determined, under a similar set of facts, that res ipsa loquitur was applicable. In that case, the plaintiff alleged that he was injured using a freight elevator "which suddenly dropped from the 17th floor of a building and abruptly stopped at the 12th floor."
In response to Defendants' lack of elevator expert argument, Plaintiff asserts that such testimony was not required because "the conclusion that a sudden elevator fall would not happen absent negligence is one that a jury can draw without hearing expert testimony." Plaintiff notes that Defendants and its experts speculated as to possible causes of the accident, but offered no factual evidence to support their assertions.
According to Plaintiff, the trial record provided an additional and independent basis for the jury to specifically infer Defendants' negligence in inspecting and maintaining the elevator's brakes. In particular, Mr. Bobb testified that the brakes would stick due to dust accumulating from construction work performed by 140 BDWY's workers. He further cites Mr. Halpern's testimony to establish that sticking brakes and an energized motor could cause an elevator to pass the floor that it was directed to stop. Specifically, at trial, the expert was asked:
"Q. Okay, And if the controller, okay, sends a signal to brings the car down from 41 to 40 okay, and the mechanical brakes are sticking, right, the — the electric motor gets energized, right, the brakes are sticking, the energy is going to build up in that electrical motor while the brakes are sticking, up to some degree, right?
A. Yes.
Q. And that force would be enough, or could be enough, in certain circumstances, to break the brakes free, knock the brakes free, and then the motor over-speeds downward, right?
A. No, actually that's not true. Slight overshoot, but this is a closed loop control system." (Trial Record p. 293/lines 5-18)
Defendants rebut by arguing that Plaintiff neither proved a direct case of negligence nor submitted evidence to permit a res ipsa loquitur instruction. In particular, Defendants indicate that there was no testimony that they negligently maintained the brake pad.
Submission of a case to a jury on the theory of res ipsa loquitur is warranted where plaintiff establishes the following three elements: "the event was of a kind that ordinarily does not occur in the absence of negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and that it was not due to any voluntary action or contribution on the part of plaintiff" ( Coku v. Millar Elevator Industries, Inc., 12 AD3d 340 [2d Dept 2004]; see Yun-Long Lin v. Royalton, LLC, et al, 2006 NY Slip Op 51827U [Sup Ct, Kings Cty 2006]; see Weeden v. Amor Elevator Co., 97 AD2d 197 [2d Dept 1983]).Plaintiff's evidence as to these elements must "afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence" ( McClure v. Schindler Elevator Corp., 9 Misc 3d 1124(A) [Civ Ct, Kings Cty. 2005] [citations omitted]).
Res ipsa loquitur permits the jury to infer negligence from the facts and circumstances of an incident, and does not require Plaintiff to prove actual or constructive notice to make out a prima facie case ( Yun-Long Lin v. Royalton, LLC, supra; McClure v. Schindler Elevator Corp., 9 Misc 3d 1124(A) [Civ Ct, Kings Cty 2005]; Mejia v. NY City Transit Auth., 291 AD2d 225 [1st Dept 2002])).
Most importantly, a plaintiff does not need the testimony of an elevator expert to invoke res ipsa loquitur ( see Miller v. Schindler Elevator Corp., 308 AD2d 312 [1st Dept 2003] [plaintiff was "entitled to invoke the doctrine based on her testimony that the elevator began to fall when she pushed the button for the basement"]; Reiff v. P.S. Marcato Elevator Corp., 2004 NY Slip Op 51433U [Sup Ct, Queens Cty 2004] [court found that "the circumstances of the incident [elevator misleveling] alone afford[ed] a sufficient basis for an inference of negligence"]; Williams v. Swissotel New York, 152 AD2d 457 [1st Dept 1989] [court found that appellant's trial testimony as to how the elevator fell was "sufficient evidence, if found credible by the trier of fact, to support the application"]; Gaillard v. Centennial Elevator Industries, 2005 NY Misc LEXIS 3522 [Sup Ct, Kings Cty 2005] (court found that plaintiff's testimony was sufficient to invoke res ipsa loquitur, and that she did not have to set forth the specific mechanical cause of the elevator's malfunction)).
In the instant matter, Defendants' chief argument is that Plaintiff failed to meet the first prong of the tripartite doctrine — "the event was of a kind that ordinarily does not occur in the absence of negligence."
Here, Plaintiff testified that he boarded a freight elevator on the 41st floor and pressed the button for the 40th floor. After the doors closed, the elevator suddenly descended at a very fast pace, stopped abruptly, and opened to a brick wall. The cab's panel read "39th floor. "This Court finds that Plaintiff's testimony of the event provided a rational basis for the trier of fact to find that the first element of the doctrine was established. As noted above, expert testimony and proof of Defendants' actual or constructive notice are not required for Plaintiff to establish a prima facie case of res ipsa loquitur. The sufficiency of Plaintiff's evidence as to the remaining two elements need not be addressed because they were not challenged by the Defendants. Since the jury had a rational basis to infer negligence against the Defendants, Plaintiff was not required to prove a direct case of negligence.
Notably, Mr. Bobb's testimony that he cleaned dust off the elevator's sticky brake linkage on the eve of the accident coupled with Mr. Halpern's opinion that sticking brakes could cause the energized motor of the elevator to "slightly overshoot," (Trial Record p. 252/ lines 20-22; p. 179-180), provided additional circumstantial grounds for the jury to render its liability verdict in favor of Plaintiff. In fact, Mr. Halpern acknowledged that the subject elevator could have stopped in the elevator shaft, but reasoned, in a speculative and conclusory fashion, that it could have been due to an array of "non-negligent factors" (Trial Record p. 265/lines 23-25, p. 266/lines 1-16).
Plaintiff's testimony regarding the extraordinary incident was additionally buttressed by an incident report, signed by Mr. Lettich, which reflects that he was taken to NYU Downtown Hospital.
A jury verdict may not be set aside as against the weight of the evidence unless it plainly appears that the evidence so preponderates in favor of the other side, that such verdict could not have been reached by any fair interpretation of the evidence (CPLR § 4404(a), Nicastro v. Park, 113 AD2d 129, 134; Cohen v. Hallmark Cards, 45 NY2d 493, 498-499). Great deference is accorded to the fact-finding of the jury, since, having seen and heard the witnesses at trial, are in the foremost position to assess their credibility ( see Ashby-Smith v. Al-Jac Trans-Serv., 275 AD2d 433 [2d Dept 2000]; Teneriello v. Travelers Co., 264 AD2d 772 [2d Dept 1999]). Courts should not substitute its judgment for that of the jury ( see Sheps v. F rank B. Hall Co., Inc., 112 AD2d 281 [2nd Dept 1985]). In view of the foregoing, this Court determines that the verdict was supported by legally sufficient evidence, and was not contrary to the weight of the proof.
THE JURY'S VERDICT AS TO DAMAGES Pain and Suffering
SCHINDLER maintains that the past and future pain and suffering awards of one million dollars ($300,000 for past pain and suffering and $700,000 for future pain and suffering), clearly deviated from reasonable compensation, in light of the testimony regarding Plaintiff's injuries. For example, Dr. Huseyin Tuncel, Plaintiff's treating physician, testified that Plaintiff presented to him post-incident, in October 2003, complaining of neck and lower back pain. After conducting tests, Dr. Tuncel determined that Plaintiff had irritation of the spinal cord and nerve root of the cervical and lumbar spines. SCHINDLER acknowledges that Plaintiff did not have lower back surgery, but did have two sets of epidural injections.
During trial, Dr. Tuncel compared Plaintiff's May 2004 MRI results (post-elevator incident) to an earlier MRI performed in September 2002, following Plaintiff's involvement in a car accident. Dr. Tuncel testified that the September 2002 MRI revealed herniated discs at C3-C4, C5-C6, L4-L5 levels of the spine and a bulging disc at the L2-L3 level. Whereas, the May 2004 MRI revealed bulging discs at C2-C3, C3-C4, C4-C5, C6-C7, C7-T1 and L4-L5 levels, and only one herniation at the C5-C6 level. SCHINDLER points out that Plaintiff did not develop any new herniations after the elevator incident, and that Dr. Tuncel acknowledged that the herniations at C3-C4 and L4-L5 reduced to bulges due to Plaintiff's treatment following the car accident. Dr. Tuncel further testified that he last examined Plaintiff on September 10, 2008, and found that he still had limitations in the cervical and lumbar spines. Yet, Plaintiff contradicted his doctor's testimony by denying that he saw him on that date.
To further support its argument, SCHINDLER cites cases involving herniated disc injuries, where past and future pain and suffering awards were respectively modified to the $200,000 and $300,000 ranges. In fact, SCHINDLER recollects that Plaintiff's counsel, in his summation, requested an award of only $200,000 for past pain and suffering, and $300,000 for future pain and suffering.
Likewise, 140 BDWY challenges the pain and suffering awards by arguing that individuals who sustained cervical and lumbar injuries more serious than Plaintiff, were awarded less damages for pain and suffering. In particular, it cites Lamuraglia v. New York City Transit Authority, 299 AD2d 321 [2d Dept 2002], where the plaintiff, age 35, as a result of being hit by a bus, sustained a fracture of the T-1 vertebra, and herniated discs at the C3-C6 levels. In that case, the plaintiff, who never underwent surgery, complained of chronic pain in his head, shoulders, neck, arm, and leg. The jury awarded the plaintiff $250,000 for past pain and suffering, and $800,000 for future pain and suffering, which the trial court reduced to $175,000 and $325,000, respectively. The Second Department determined that a new trial was required unless the plaintiff stipulated to a further reduction to $100,000 for past pain and suffering, and $200,000 for future pain and suffering. 140 Broadway relies on this ruling to argue that the total pain and suffering awards in the instant case should be reduced to $150,000-$200,000 because Plaintiff's injuries were not as severe as the aforementioned plaintiff, who sustained herniated discs and a fractured vertebra.
In opposition and in support of the pain and suffering awards, Plaintiff maintains that the jury was duly charged to determine what would be fair and just compensation. Plaintiff asserts that the cases cited by Defendants can be distinguished from the instant action because he is disabled in both the upper and lower extremities, as opposed to only one region. Plaintiff asserts that the pain and suffering awards herein are reasonable, in light of his condition and estimated future life expectancy of sixteen more years. In fact, he suggests that the court considers Winbush v. New York City Transit et al., 305 AD2d 586 [2d Dept 2003], where the Appellate Court sustained a jury award of $300,000 for past pain and suffering, and $500,000 future pain and suffering for a cervical disc disability alone.
140 BDWY rebuts and states that the plaintiff in Winbush allegedly sustained three large herniated discs in a car accident, and did not have prior neck or back injuries. In addition, the past and future pain and suffering awards in the case were to respectively cover periods of eight and thirty years.
In determining whether the pain and suffering awards herein were reasonable, this Court examined comparable cases for guidance, as it must ( Donovan v. Tineo, 2006 NY Slip Op 51353U [App Term, 2nd Dept 2006] [ jury award for past pain and suffering reduced from $70,000 to $40,000, and the future pain and suffering award reduced from $360,000 to $240,000, where plaintiff suffered disc herniations at C3-C4, C4-C5 and C5-C6, as well as disc bulges at L2-L3, L3-L4, and L4-L5]; Beauvais v. City of New York, 2008 NY Slip Op 51920U [App Term, 1st Dept 2008] [plaintiff, age 61 at the time of trial, suffered multiple cervical and lumbar disc bulges, and underwent surgery for bilateral temporomandibular joint dysfunction. Jury award was reduced from an aggregate pain and suffering award of $2M to $200,000 for past and $300,000 for future]; Van Nostrand v. Froehlich, 18 AD3d 539 [2d Dept 2005] [jury award of $150,000 and $400,000 for past and future pain and suffering, respectively, were reduced to $100,000 and $200,000, where the 19 year old plaintiff sustained herniated discs at C3-C4 and L5-S1]; Allen v. Amzoski, 2004 NY Slip Op 50071U [Sup Ct, Bronx Cty. 2004] [jury award of $115,000 for past pain and suffering, and $300,000 for future pain and suffering over fifteen years, was respectively reduced to $75,000 and $50,000 for plaintiff, who sustained bulging discs that worsened into herniated discs at L4-L5 and L5-S1]; Maisonaves v. Friedman, 255 AD2d 494 [2d Dept 1998] [jury award of $426,000 was reduced to $175,000, representing $100,000 for past pain and suffering, and $75,000 for future pain and suffering, for plaintiff that sustained four bulging discs in the cervical spine and two bulging discs in the lumbrosacral spine, all of which were impinging on her thecal sac]).
Under CPLR § 5501(c), appellate courts are conferred the authority to overturn a jury's damages verdict or order a new trial when its award "deviates materially from what would be reasonable compensation." New York law has established that this standard is equally applicable to trial courts ( see Gasperini v. Center for Humanities, 518 US 415 (1996); Shurgan v. Tedesco, 179 AD2d 805 [2d Dept 1992]).
From the evidence adduced at trial, Plaintiff's sole herniated disc at C5-C6, stemmed from his 2002 car accident, not the elevator incident. Moreover, herniated discs that were observed on Plaintiff's 2002 MRI at C3-C4 and L4-L5, had improved to bulges by 2004. Thus, Plaintiff apparently sustained a total of four new bulges from the elevator accident. Dr. Tuncel equivocated as to Plaintiff's need for future treatment, indicating that his condition "may remain same, or it may get worse," and opined that "there's really not much which could be done, because he has tried epidural injections" (Trial Transcript p. 502, lines 3-11).
While it is clear that Plaintiff sustained injuries, a survey of cases involving comparable injuries reflects that his pain and suffering awards deviated materially from reasonable compensation. The trial testimony further established that Plaintiff's awards were excessive. Thus, the jury's awards of $300,000 for past pain and suffering and $700,000 for future pain and suffering can not stand, and are hereby vacated. This Court deems an award of $120,000 for past pain and suffering, and $280,000 for future pain and suffering to be reasonable, and orders a new trial on this issue unless Plaintiff stipulates to reduce the awards accordingly.
Loss of Earnings
SCHINDLER asserts that the past and future loss of earnings awards are inconsistent with Plaintiff's injuries and his claimed disability. In fact, none of the medical experts at trial addressed this issue, including Plaintiff's expert, Dr. Tuncel.
140 BDWY argues that the past loss of earnings award of $312,000 should be reduced to $295,856, to comport with Plaintiff's economist's testimony. In addition, the future loss of earnings award should be set aside, as there was no medical testimony connecting Plaintiff's injuries to his alleged disability.
Plaintiff relies on the medical records of Dr. Tuncel, which incorporated records from Dr. Jeffrey Kaplan, an orthopedic surgeon. Within Dr. Kaplan's records are several entries from November 2003-August 2005, which state that Plaintiff was unable to return to work due to a total disability.
It is well settled that loss of earnings claims "must be ascertainable with a reasonable degree of certainty and may not be based on conjecture" ( Glaser v. County of Orange, 54 AD3d 997, 998 [2d Dept. 2008]; Davis v. City of New York, 264 AD3d 379, 379-80 [2d Dept 1999]).Plaintiff meets its burden of proving damages by submitting tax returns or other relevant documentation ( see Karwacki v. Astoria Med. Anesthesia Assoc., P.C. , 23 AD3d 438 [2d Dept 2005]; Lodato v. Greyhawk N. Am. LLC, 39 AD3d 494, 495-96 [2d Dept 2007]). In particular, a loss of earnings claim requires medical testimony connecting Plaintiff's injuries to his inability to work ( see Miah v. Private One, 2009 NY Slip Op 51055U [Sup Ct, Kings Cty 2009]; Razzaque v. Krakow Taxi, Inc., 238 AD2d 161, 162 [1st Dept 1997]; Szynalo v. Barretti Carting Corp., 304 AD2d 558 [2d Dept 2003]).
Mr. Stuart Sachnin, Plaintiff's economist, testified that after he interviewed Plaintiff and
his wife, he assessed loss earnings by reviewing medical reports, income tax returns from 2000-2003, and other legal documentation. It was his opinion that Plaintiff was 100% occupationally disabled. Mr. Sachnin adjusted Plaintiff's income for the above time frame using the consumer price index ("CPI") to calculate an average earning capacity of $52,942 each year, from the date of accident to the date of trial. In sum, he projected $295,856 in past loss earnings, and $148,310 in future loss earnings, based upon a 2.5 years work expectancy for Plaintiff and a future wage growth rate of 3.9%.
Defendants' economist, Fred Goldman, Ph.D., asserted that Mr. Sachnin's past loss wages calculation was unreliable because the CPI concerns how much money Plaintiff would need in today's dollars to buy the same amount of goods that he would have purchased with his past wages. Dr. Goldman reasoned that the employment cost index was preferable because it measures changes in workers' wages. Dr. Goldman testified that he did not compute Plaintiff's past loss earnings. However, while on the witness stand, he made a "seat-of-the-pants approximation" that Mr. Sachnin's figure should be reduced by 5% to $281,063 (Trial Transcript p. 629, lines 1-12).
Dr. Goldman further indicated that Plaintiff's future work life expectancy should have been estimated from the date of the accident, not from the current period. Specifically, he opined that Plaintiff, had 6 ½ years of remaining work life at the time of the accident, and would stop working at the age 63. Using Mr. Sachnin's $59,942 average earning capacity estimate, Dr. Goldman determined that Plaintiff's future wages would be $29,954.
Plaintiff points out that the jury's award of $312,000 for past loss of earnings differed only 5% from Mr. Sachnin's calculation of $295,856 for same. In addition, the past lost of earnings computation by Defendants' economist, Dr. Fred Goldman, was only 5% lower than Mr. Sachnin's figure. Plaintiff further maintains that the jury considered Mr. Sachnin's calculations to arrive at $208,000 for future loss earnings.
After careful review of the testimony and the applicable case law, it is clear that the past loss of earnings award of $312,000 is excessive and unsupported by the record. This Court credits Dr. Goldman's opinion that the employment wage index should have been applied by Mr. Sachnin, rather than the CPI, to account for changes in Plaintiff's wages. However, Dr. Goldman's calculations at trial, were equally unreliable, because they were not supported by probative testimony and evidence.
Similarly, the future loss earnings award of $208,000 is excessive and unsubstantiated by the record. Plaintiff failed to present medical testimony or evidence that established a nexus between his injuries and its effect on his alleged future inability to work. Notably, as pointed out by Defendants, Mr. Sachnin is not a medical doctor; thus, his testimony as to Plaintiff's condition lacks probative value. Dr. Kaplan's reports are also insufficient, as they simply document Plaintiff's medical condition during the time window of 2003-2005, and do not establish the effect, if any, that his limitations had on his future ability to work. Lastly, Plaintiff failed to proffer income tax returns or other relevant documentation during the trial to support his claim.
In light of the foregoing, it is the opinion of this Court that the awards for past and future loss earnings deviated materially from what would be considered reasonable compensation. In so holding, the awards for lost earnings are vacated. This Court, pursuant to CPLR § 5501(c), deems an award of $124,800 for past loss of earnings to be reasonable, and orders a new trial on this issue unless Plaintiff stipulates to reduce it accordingly. The award for future loss of earnings is set aside, and is hereby dismissed as a matter of law.
CONTRACTUAL AND COMMON LAW INDEMNIFICATION
140 BDWY contends that it is entitled to contractual and common law indemnification from SCHINDLER. At trial, a copy of the Full Master Maintenance Contract ("contract"), dated July 30, 1998, was admitted into evidence. According to 140 BDWY, the contract required SCHINDLER to have a resident mechanic on the premises to perform elevator maintenance.
Conversely, SCHINDLER argues that the indemnification provision in the contract does not apply to 140 BDWY because it was actively negligent, in that the jury equally apportioned liability between them. It notes the testimony of Mr. Bobb that an elevator's brakes could get sticky from dust accumulated by construction workers employed by 140 BDWY.
In response, 140 BDWY states that it would not be entitled to indemnification if it was aware of the elevator's malfunction; yet, failed to notify SCHINDLER. 140 BDWY notes that SCHINDLER did not raise that argument in its papers. Moreover, 140 BDWY avers that regardless of the source of the purported dust on the brakes, SCHINDLER was exclusively responsible for maintaining the elevator; therefore, any negligence in its upkeep would be attributed to it.
Specifically, Addendum No. 1 of the Full Master Maintenance Contract, in pertinent part, reads as follows:
INDEMNIFICATION
"The contractor agrees to defend, indemnify and hold harmless the owner, its agents, partners and employees against any and all liability, including legal costs and expenses, on account of death or injury to any person or damage to property, to the extent such liability arises out of the negligence of the contractor in the performance of this contract."
The record reflects that SCHINDLER's witnesses, Mr. Bobb and Mr. Lettich, both testified that it exclusively contracted with 140 BDWY to maintain the building's elevators. In particular, Mr. Lettich testified that SCHINDLER was responsible for maintaining the elevators, pursuant to the above, and if there was an elevator problem, starters employed by American Building Maintenance would shut down the elevator and notify the mechanic employed by SCHINDLER.
Case law holds that "an owner of property has a non-delegable duty to maintain a building elevator in a reasonably safe condition ( see Ortiz v Fifth Ave. Bldg. Assocs., 251 AD2d 200, 674 NYS2d 360 [1st Dept 1998])" ( Reiff v. P.S. Marcato Elevator Co., supra). However, courts routinely hold that a building owner is entitled to indemnification when it has contracted the performance of its maintenance duties to an elevator company. Id. ( see also Rogers v. Dorchester Associates, 32 NY2d 553; Mas v. Two Bridges Associates, 75 NY2d 680).
In the case at bar, it is undisputed that SCHINDLER contractually agreed to perform all required maintenance on the elevator. As between 140 BDWY, and one who undertakes responsibility for maintenance, the party assuming the contractual duty is liable to 140 BDWY for the damages the owner must pay ( see Mas v. Two Bridges Associates, supra.) Here, indemnification is not barred because of the owner's nondelegable duty. As between 140 BDWY and SCHINDLER, the former has the right, under the maintenance contract, to look to SCHINDLER to perform its entire duty to Plaintiff ( see Rogers v. Dorchester Associates, supra).
CONCLUSION
After extensive review of the trial testimony, exhibits, prevailing case law, as well as a critical analysis of the arguments proffered in the motions submitted, this Court renders the following ruling:
ORDERED that Defendants' motions to set aside the jury's verdict is granted to the extent that the jury's awards for past pain and suffering of $300,000; future pain and suffering of $700,000, and past loss earnings of $312,000 are set aside, the future loss of earnings award of $208,000 is set aside, and dismissed as a matter of law. A new trial will be granted on those elements of damages, unless within 30 days after service upon him a copy of this Decision and Order, Plaintiff stipulates to the reduction of the verdict for past pain and suffering to $120,000; future pain and suffering to $280,000 and past loss earnings to $124,800.
ORDERED that 140 BDWY is entitled to both contractual and common law indemnification from SCHINDLER, pursuant to the Full Master Maintenance Contract. The motions in all other respects are denied.
This shall be the Decision and Order of the Court.