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Cano v. Mid-Valley Oil Co., Inc.

Supreme Court of New York, Second Department

June 7, 2017

Carlos Enrique Cano, plaintiff-respondent-appellant,
v.
Mid-Valley Oil Company, Inc., et al., defendants third-party plaintiffs-appellants-respondents; Adventura Construction Services, third-party defendant-appellant (and other actions). Index No. 28242/05

          Quirk and Bakalor, P.C. (Carol R. Finocchio, New York, NY, of counsel), for third-party defendant-appellant.

          Boeggeman, George & Corde, P.C., White Plains, NY (Robert S. Ondrovic of counsel), for defendants third-party plaintiffs-appellants-respondents.

          Keith D. Silverstein & Associates, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Michael H. Zhu], of counsel), for plaintiff-respondent-appellant.

          L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, (1) the third-party defendant appeals, as limited by its brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Pitts, J.), entered January 12, 2015, which, inter alia, is in favor of the defendant third-party plaintiff Drake Petroleum Company, Inc., and against it in the sum of $1, 000, 000, (2) the defendants third-party plaintiffs separately appeal, as limited by their brief, from so much of the same judgment as, after a jury trial on the issue of damages and upon an order of the same court dated December 2, 2014, denying those branches of the motion of the defendant third-party plaintiff Drake Petroleum Company, Inc., which were pursuant to CPLR 4404(a) to set aside so much of the verdict as awarded damages for past and future lost wages and granting those branches of that motion which were to set aside so much of the verdict as awarded damages for past and future medical expenses only to the extent of reducing those damages to the principal sums of $250, 000 and $600, 000, respectively, is in favor of the plaintiff and against the defendant third-party plaintiff Drake Petroleum Company, Inc., in the principal sums of $150, 000 for past lost wages, $137, 670 for future lost wages, $250, 000 for past medical expenses, and, pursuant to CPLR article 50-B, $589, 838 for future medical expenses, and (3) the plaintiff cross-appeals, as limited by his brief, from so much of the same judgment (a) as, upon an order of the same court entered July 5, 2013 (Molia, J.), denying his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), upon an order of the same court dated October 9, 2013 (Molia, J.), denying that branch of his motion which was for leave to renew his prior motion for summary judgment, and upon a jury verdict on the issue of liability finding him to be 25% at fault in the happening of the accident and the defendant third-party plaintiff Drake Petroleum Company, Inc., to be 75% at fault, reduced the damages awarded to the plaintiff by 25% based on the plaintiff's comparative fault, and (b) as, after a jury trial on the issue of damages and upon an order of the same court dated December 2, 2014, denying those branches of the plaintiff's motion which were pursuant to CPLR 4404(a) to set aside, on the ground of inadequacy, so much of the verdict as awarded damages for past pain and suffering in the sum of only $100, 000 and damages for future pain and suffering in the sum of only $375, 000, is in favor of the plaintiff and against the defendant third-party plaintiff Drake Petroleum Company, Inc., in the principal sum of only $100, 000 for past pain and suffering and, pursuant to CPLR article 50-B, in the principal sum of only $311, 130 for future pain and suffering.

         ORDERED that the appeal by the defendants third-party plaintiffs Mid-Valley Oil Company, Inc., and Mobil Corporation is dismissed, as those parties are not aggrieved by the judgment appealed from (see CPLR 5511); and it is further, ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by (1) deleting the provision thereof reducing the award of damages to the plaintiff by 25% based on the plaintiff's comparative fault, (2) deleting the provision thereof in favor of the defendant third-party plaintiff Drake Petroleum Company, Inc., and against the third-party defendant in the sum of $1, 000, 000, (3) deleting the provision thereof awarding damages for future medical expenses in the principal sum of $589, 838, (4) deleting the provision thereof awarding damages for past pain and suffering in the principal sum of $100, 000, and (5) deleting the provision thereof awarding damages for future pain and suffering in the principal sum of $311, 130; as so modified, the judgment is affirmed insofar as appealed from by the third-party defendant and the defendant third-party plaintiff Drake Petroleum Company, Inc., and cross-appealed from by the plaintiff, without costs or disbursements, the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is granted, the order entered July 5, 2013, is modified accordingly, the order dated October 9, 2013, is vacated, those branches of the plaintiff's motion which were to set aside, on the ground of inadequacy, so much of the verdict as awarded damages for past and future pain and suffering are granted, those branches of the motion of the defendant third-party plaintiff Drake Petroleum Company, Inc., which were to set aside so much of the verdict as awarded damages for past and future medical expenses are granted, the order dated December 2, 2014, is modified accordingly, and the matter is remitted to the Supreme Court, Suffolk County, for (a) a new trial on the issue of damages for past and future pain and suffering, and for the entry of an appropriate amended judgment thereafter, unless within 30 days after service upon the defendant third-party plaintiff Drake Petroleum Company, Inc., of a copy of this decision and order, the defendant third-party plaintiff Drake Petroleum Company, Inc., shall serve and file in the office of the Clerk of the Supreme Court, Suffolk County, a written stipulation consenting to increase the verdict as to damages for past pain and suffering from the principal sum of $100, 000 to the principal sum of $1, 000, 000, and to increase the verdict as to damages for future pain and suffering from the principal sum of $375, 000 to the principal sum of $2, 500, 000, and to the entry of an amended judgment accordingly, and for (b) a new trial on the issue of damages for future medical expenses, and for the entry of an appropriate amended judgment thereafter, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Suffolk County, a written stipulation consenting to reduce the damages award for future medical expenses from the sum of $589, 838 to the sum of $250, 000, and to the entry of an amended judgment accordingly; in the event the plaintiff and the defendant third-party plaintiff Drake Petroleum Company, Inc., so stipulate, then the judgment, as so increased, reduced, and amended, is affirmed insofar as appealed from by the third-party defendant and the defendant third-party plaintiff Drake Petroleum Company, Inc., and cross-appealed from by the plaintiff, without costs or disbursements.

         On June 3, 2005, the plaintiff, who was 33 years old at the time, was injured when he fell from an unsecured ladder while working at a construction site while employed by the general contractor, Adventura Construction Services (hereinafter Adventura). Although the ground where the plaintiff was working, which consisted of dirt, was uneven and unsettled, and although aerial lifts and scaffolding were available on the job site and the plaintiff had indicated that he did not believe that a ladder was the proper device for the work, the plaintiff was instructed by his supervisor, who had observed the condition of the ground, to use a ladder. As a result of his fall, the plaintiff sustained serious injuries to his dominant hand and wrist, and his lower back.

         The plaintiff then commenced three separate actions to recover damages for the injuries he sustained in connection with his accident, alleging violations of, inter alia, Labor Law §§ 240(1) and 241(6). The first action was against, among others, Drake Petroleum Company, Inc. (hereinafter Drake), the owner of the property, which, in turn, commenced a third-party action against Adventura seeking contractual indemnification. The second action was against Warex Terminals Corporation (hereinafter Warex), which was a "sister company" to Drake and which had signed the construction contract with Adventura. The third action was against Warren Equities, Inc., the parent company of Drake and Warex. The three actions were later joined for discovery and trial.

         After discovery, the plaintiff moved for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action. Drake opposed the motion, submitting only an attorney's affirmation in which the attorney contended that the deposition testimony of the plaintiff, who was an undocumented immigrant who had failed to pay taxes and who had utilized a coworker's name in order to obtain health insurance immediately following the accident, raised issues of credibility that could not be resolved on a motion for summary judgment, and further raised issues as to whether the plaintiff was the sole proximate cause of his accident. In an order entered July 5, 2013, the Supreme Court (Molia, J.) denied the plaintiff's motion. In an order dated October 9, 2013, the court (Molia, J.) denied the branch of the plaintiff's motion which was for leave to renew his prior motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action.

         The Supreme Court (Pitts, J.) subsequently conducted a trial on the issue of liability, at which the plaintiff presented his testimony, the testimony of a coworker, and the testimony of a forensic engineer who opined that Drake violated both Labor Law §§ 240(1) and 241(6). None of the defendants presented any witnesses.

         Prior to the plaintiff's case on liability being submitted to the jury, the Supreme Court dismissed the plaintiff's actions insofar as asserted against all of the defendants except Drake and Warex. The plaintiff and Warex then settled the second action before the case was submitted to the jury.

         The jury returned a verdict in which it found that Drake did not violate Labor Law § 240(1), but that it violated Labor Law § 241(6), and apportioned 25% fault to the plaintiff and 75% fault to Drake.

         The Supreme Court then conducted a trial on the issue of damages, at which the plaintiff presented his testimony, the testimony of a specialist in hand surgery with experience in back surgery, and the testimony of a vocational rehabilitation specialist who testified that as a result of the accident, the plaintiff sustained a total loss of earning capacity. Again, none of the defendants presented any evidence. After the trial, the jury returned a verdict in favor of the plaintiff and against Drake, awarding the plaintiff $100, 000 for past pain and suffering, $700, 000 for past medical expenses, $150, 000 for past lost earnings, $375, 000 for future pain and suffering, $1, 515, 000 for future medical expenses, and $160, 000 for future lost earnings.

         The plaintiff then moved after trial pursuant to CPLR 4404(a) for a directed verdict on his Labor Law § 240(1) cause of action, and to set aside the verdict as to comparative fault and his awards for past and future pain and suffering. Drake and Adventura separately moved to set aside the jury's awards for past and future lost wages, and to reduce the awards for past and future medical expenses. The Supreme Court, in an order dated December 2, 2014, denied the plaintiff's motion in its entirety, and granted the motions by Drake and Adventura to the extent that it reduced the award for past medical expenses from $700, 000 to $250, 000, and the award for future medical expenses from $1, 515, 000 to $600, 000. Additionally, the court granted ...


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