The opinion of the court was delivered by: Rom n, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Peter Tom,J.P. Richard T. Andrias James M. Catterson Sheila Abdus-Salaam Nelson S. Roman, JJ.
Plaintiff appeals from the order of the Supreme Court, Bronx County(Mary Ann Brigantti-Hughes, J.), entered March 23, 2011, which, inter alia, granted defendant's motion to dismiss his Labor Law §§ 200 and 241(6) and common-law negligence causes of action, vacate the directed verdict in favor of plaintiff on his Labor Law § 240(1) cause of action and order a new trial as to liability on this cause of action, and on the awards for future economic damages and past future pain and suffering. Cross appeals from the second amended order of the same court and Justice, entered April 6, 2011, which, in addition to the aforesaid relief, vacated the awards for future economic damages and past and future pain and suffering and vacated the judgment, same court and Justice, entered May 24, 2010. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac and Seth R. Harris of counsel), for appellant- respondent. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone and Deirdre E. Tracey of counsel), for respondents- appellants. ROMAN, J.
In this action for personal injuries, we hold, inter alia, that while CPLR § 4401, when properly applied, promotes judicial economy by narrowing, and at times even removing, issues submitted to the jury, it is reversible error to grant a motion for a directed verdict prior to the close of the party's case against whom a directed verdict is sought.
On June 6, 2006, plaintiff, an employee of nonparty DiFama Concrete, was injured while working at a construction site owned by defendant Clinton Green South, LLC. Clinton Green, which was erecting several buildings and a theater complex, hired defendant Bovis Lend Lease LMB, Inc. as its general contractor. Bovis in turn hired several subcontractors, including DiFama, a concrete contractor. On the date of his accident, plaintiff had been tasked with dismantling a scaffold which had been erected after the installation of a ceiling within one of the building's floors. The scaffold was 12 feet high and plaintiff, along with two other DiFama employees, was dismantling it. As plaintiff was on the floor, on his hands and knees, stacking pieces of the scaffold as it was dismantled by his co-workers, a piece of the scaffold suddenly fell, striking him in the back.
Plaintiff commenced this action for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). This case was tried before a jury and at trial plaintiff testified to the facts described above, and those related to his injuries. In addition, plaintiff called Ralph Didonato, Bovis's General Superintendent of Field Operations, who testified that Bovis was responsible for site safety, conducted safety meetings, had the authority to insist that subcontractors adhere to Bovis's safety guidelines, and could stop a subcontractor's work if Bovis deemed it unsafe. Didonato further testified that when dismantling a scaffold, the area adjacent to the scaffold should be cordoned or taped off to prevent all, except those engaged in the dismantling, from entering.
At the conclusion of plaintiff's case in chief, he moved for a directed verdict on his cause of action pursuant to Labor Law § 240(1). The court granted plaintiff's motion over defendants' objection. Plaintiff thereafter elected not to pursue his remaining causes of action, characterizing them as moot.
Upon the conclusion of defendants' case, the action was submitted to the jury solely on the issue of damages. The jury awarded plaintiff the following damages: $131,243 for past lost income; $3,127,091 for future lost income; $22,748 for past lost health insurance, $1,835,711 for future lost health insurance; $20,414 for past lost annuity funding; $494,935 for future lost annuity funding; $1,230,630 for future lost retirement pension; $700,000 for future lost social security; $0 for past pain and suffering; and $5,000,000 for future pain and suffering.
Defendants made a posttrial motion seeking, inter alia: 1) to vacate the trial court's directed verdict on liability with respect to plaintiff's Labor Law § 240(1) claim; 2) to dismiss plaintiff's remaining causes of action as unsupported by sufficient evidence; 3) to set aside the jury's verdict on economic damages as against the weight of the evidence and/or unsupported by sufficient evidence, and; 4) to set aside the jury's verdict with respect to damages for future pain and suffering as excessive. Plaintiff, without opposing the portion of defendants' motion seeking dismissal of his common-law cause of action and causes of action pursuant to Labor Law §§ 200, and 241(6), opposed all other aspects of defendants' motion. Additionally, plaintiff cross-moved to set aside the jury's award for past pain and suffering as against the weight of the evidence and alternatively as insufficient.
The trial court granted defendants' motion to vacate the verdict on plaintiff's cause of action pursuant to Labor Law § 240(1) and directed a new trial on that cause of action. The court also granted defendants' motion to dismiss plaintiff's remaining causes of action, finding that the evidence at trial failed to establish any liability thereunder. Partially granting defendants' motion to set aside or dismiss the jury's award for economic damages, the trial court set aside the award for future economic damages, and as to those damages, ordered a new trial. Noting that the jury's award for past pain and suffering was insufficient and that the jury's award for future pain and suffering was excessive, the trial court set aside those damages and ordered a new trial if the parties did not stipulate to an amount with regard to those damages.
The parties appealed from the trial court's order. With the exception of the trial court's finding that the jury's award for past pain and suffering was inadequate, plaintiff appealed every other aspect of the order. Defendants cross-appealed, asserting that the trial court erred in failing to set aside the jury's award for past economic damages and ordering a new trial with respect to those damages. In addition, defendants argue that the trial court erred in failing to dismiss the claim for lost health insurance. We now modify.
The trial court properly granted defendants' posttrial motion to set aside and vacate its prior order directing a liability verdict in plaintiff's favor on his Labor Law § 240(1) cause of action. CPLR § 4401 states that "[a]ny party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue (emphasis added)." By its express language, the statute authorizes the grant of a motion for a directed verdict only if the opponent of the motion has presented evidence and closes his/her case. "The requirement that each party await the conclusion of the other's case before moving for judgment [under CPLR § 4401] is designed to afford all of them a day in court" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4401:5). Accordingly, the timing of a motion prescribed by CPLR § 4401 must be strictly enforced and "the grant of a dismissal [pursuant to CPLR § 4401] prior to the close of the opposing party's case will be reversed as premature even if the ultimate success of the opposing party in the action is improbable" (Cass v Broome County Coop., Ins. Co., 94 AD2d 822, 823  [internal citations omitted]; see also Alevy v Uminer, 88 AD3d 477, 477-478  [same]; Boulevard Hous. Corp. v Bisk, 80 ...