- September 5, 2019
Markus McDougal & DeBellis, LLP, Garden City, NY (Claudio
DeBellis and Matthew G. White of counsel), for appellants.
& Branch, LLP, New York, NY (Mary Ellen O'Brien of
counsel), for respondents.
REINALDO E. RIVERA, J.P. JEFFREY A. COHEN ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from a judgment of the Supreme Court,
Richmond County (Orlando Marrazzo, Jr., J.), dated May 13,
2016. The judgment, upon a jury verdict in favor of the
defendants on the issue of liability and upon the denial of
the plaintiffs' motion pursuant to CPLR 4404(a) to set
aside the verdict, is in favor of the defendants and against
the plaintiffs, in effect, dismissing the cause of action
alleging a violation of Labor Law § 241(6).
that the judgment is reversed, on the law, on the facts, and
in the exercise of discretion, with costs, the
plaintiffs' motion pursuant to CPLR 4404(a) to set aside
the jury verdict is granted, the cause of action alleging a
violation of Labor Law § 241(6) is reinstated, and the
matter is remitted to the Supreme Court, Richmond County, for
a new trial.
plaintiff Joaquim Torres (hereinafter the injured plaintiff)
sustained personal injuries while working as a member of an
excavation crew on the installation of sewer lines along a
street in Staten Island. The defendants City of New York and
City of New York Department of Design and Construction
(hereinafter together the City defendants) had hired the
injured plaintiff's employer to perform the work on the
project. The injured plaintiff, who was inside a steel trench
box located approximately 10 feet below grade level, was
signaling to the operator of an excavator when his right hand
was crushed against the inside of the steel trench box by the
bucket of the excavator. The injured plaintiff, and his wife
suing derivatively (hereinafter together the plaintiffs),
commenced this action against, among others, the City
defendants alleging, inter alia, a violation of Labor Law
§ 241(6). That cause of action was premised upon an
alleged violation of Industrial Code (12 NYCRR) 23-4.2(k),
which provides, in relevant part, that "[p]ersons shall
not be . . . permitted to work in any area where they may be
struck . . . by any excavation equipment."
trial was held on the issue of the City defendants'
liability. During deliberations, the jury sent a note to the
Supreme Court requesting, inter alia, a written copy of Labor
Law § 241(6). The court denied that request and,
instead, repeated its charge on the law. The plaintiffs'
attorney subsequently advised the court that it erred in its
charge to the jury by omitting a portion of the Pattern Jury
Instructions charge (see PJI 2:216A), and requested
a curative instruction. In particular, the court did not
instruct the jury that in order to return a verdict in favor
of the plaintiffs and against the City defendants on the
issue of liability, it must find that "the failure to
use reasonable care was a substantial factor" in causing
the injured plaintiff's injuries. The court denied the
jury returned a verdict finding that the City defendants
violated Industrial Code (12 NYCRR) 23-4.2(k), but that the
violation was not a substantial factor in causing the
accident. Although the instructions on the verdict sheet
directed the jury to end its deliberations if it found that
the violation of Industrial Code (12 NYCRR) 23-4.2(k) was not
a substantial factor in causing the accident, the jury
further found that the injured plaintiff was negligent and
that his negligence was a substantial factor in causing the
accident. The jury then proceeded to apportion fault 25% to
the City defendants and 75% to the injured plaintiff. After
the Supreme Court instructed the jurors to reconsider its
verdict, the jury returned a second verdict which was
identical to the first verdict, except that the jurors did
not answer the questions as to the injured plaintiff's
negligence and apportionment of fault. The plaintiffs then
moved pursuant to CPLR 4404(a) to set aside the jury verdict,
which was denied. The court subsequently issued a judgment
dated May 13, 2016, in favor of the City defendants and
against the plaintiffs, in effect, dismissing the cause of
action alleging a violation of Labor Law § 241(6).
a jury's verdict is internally inconsistent, the trial
court must direct either reconsideration by the jury or a new
trial" (D'Annunzio v. Ore, 119 A.D.3d 512');">119 A.D.3d 512
[internal quotation marks omitted]; see CPLR
4111[c]; Magee v. Cumberland Farms, Inc., 145 A.D.3d
769, 771; Kelly v. Greitzer, 83 A.D.3d 901, 902).
"On reconsideration, the jury [is] free to substantively
alter its original statement so as to conform to its real
intention, and [is] not bound by the terms of its original
verdict inasmuch as that verdict was not entered by the
court" (Kelly v. Greitzer, 83 A.D.3d at 902
[internal quotation marks omitted]). "Even after
reconsideration by the jury, a trial court has discretion to
set aside a verdict which is clearly the product of
substantial confusion among the jurors" (Cleveland
v. Djeu, 152 A.D.3d 483, 485 [internal quotation marks
omitted]). "A new trial should be granted where . . .
the record demonstrates substantial confusion among the
jurors in reaching a verdict" (Kelly v.
Greitzer, 83 A.D.3d at 902 [internal quotation marks
since the jury's initial verdict was internally
inconsistent, we agree with the Supreme Court's
determination to direct the jury to reconsider its verdict.
Nevertheless, the record supports the conclusion that the
second verdict, although internally consistent, was
unreliable and the product of substantial juror confusion
(see Cleveland v. Djeu, 152 A.D.3d at 485; cf.
Sabarese v. Board of Educ. of the Tuxedo Union Free Sch.
Dist., 151 A.D.3d 776, 777-778; Kelly v.
Greitzer, 83 A.D.3d at 903). After the jury returned its
initial verdict, the court simply advised the jury to follow
the directions on the verdict sheet. The court should have
reinstructed the jury on the concept of comparative fault and
the meaning of the term "substantial factor,"
especially in light of the fact that its prior charge
"incompletely convey[ed] the germane legal principles to
be applied" (J.R. Loftus, Inc. v. White, 85
N.Y.2d 874, 876). Accordingly, we reverse the judgment and
order a new trial.
that the plaintiffs are correct that the Supreme Court should
not have instructed the jury that it was the City
defendants' contention that Industrial Code (12 NYCRR)
23-4.2(k) "does not apply in this case because the
[injured] plaintiff, a member of the 'excavator crew'
as that term is defined in 12 NYCRR 23-9.5(c) was authorized
to be within the range of the moving excavating bucket."
This Court, in connection with a prior appeal in this case,
rejected that contention, stating that "a person
authorized pursuant to 12 NYCRR 23-9.5 to . . . be within the
range of an excavator's bucket may, contrary to the City
defendants' contention, still claim the protections
provided by 12 NYCRR 23-4.2(k)" (T ...