Opinion
2012-06-7
Segundo ONCE, et al., Plaintiffs–Respondents, v. SERVICE CENTER OF NEW YORK, et al., Defendant, 218 W 72nd St. Realty Corp., et al., Defendants–Appellants.
Morris Duffy Alonso & Faley, New York (Anna J. Ervolina and Andrea M. Alonso of counsel), for appellants. Lurie, Ilchert, McDonnell & Ryan LLP, New York (Dennis A. Breen of counsel), for respondents.
Morris Duffy Alonso & Faley, New York (Anna J. Ervolina and Andrea M. Alonso of counsel), for appellants. Lurie, Ilchert, McDonnell & Ryan LLP, New York (Dennis A. Breen of counsel), for respondents.
TOM, J.P., ANDRIAS, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 19, 2011, which granted plaintiffs' motion to set aside the jury verdict awarding plaintiffs $50,000 and $10,000, respectively, for past and future pain and suffering and finding plaintiff 70% liable, to the extent of directing a new trial unless the parties stipulated to increase the awards for past and future pain and suffering, respectively, to $75,000 and $150,000, and to assess plaintiff's liability at 15%, unanimously modified, on the law, to set aside the apportionment of fault to plaintiff, and to direct a new trial solely as to damages for past and future pain and suffering unless defendants stipulate to the trial court's reduced award, and to the entry of judgment in accordance therewith, and otherwise affirmed, without costs. In cases involving a claim pursuant to Labor Law § 241(6), contributory and comparative negligence are viable defenses ( see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ). However, contrary to appellants' contention, no evidence of culpable conduct on the part of plaintiff was shown here. The jury found that the power saw provided by appellants had no guard, in violation of Industrial Code § 23–1.12(c), and that no other adequate devices were available to plaintiff ( see Tounkara v. Fernicola, 80 A.D.3d 470, 471, 914 N.Y.S.2d 161 [2011];Bajor v. 75 E. End Owners, Inc., 89 A.D.3d 458, 932 N.Y.S.2d 40 [2011] ). There is no evidence that plaintiff misused the saw, which he had been directed to use ( compare Leon v. Peppe Realty Corp., 190 A.D.2d 400, 596 N.Y.S.2d 380 [1993] ). Thus, upon a search of the record, judgment in favor of plaintiff on the issue of liability is granted ( see Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077 [1984];Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978];see also Curley v. Consolidated Rail Corp., 178 A.D.2d 318, 578 N.Y.S.2d 536 [1991],affd. 81 N.Y.2d 746, 593 N.Y.S.2d 772, 609 N.E.2d 125 [1992],cert. denied508 U.S. 940, 113 S.Ct. 2415, 124 L.Ed.2d 638 [1993] ).
The trial court properly found that the jury's award of $50,000 for past pain and suffering and $10,000 for future pain and suffering over a period of 27 years deviates materially, to the extent indicated, from what is reasonable compensation for plaintiff's amputation of the distal portion of his ring finger ( seeCPLR 5501[c]; Ramos v. City of New York, 68 A.D.3d 632, 891 N.Y.S.2d 385 [2009];Biejanov v. Guttman, 34 A.D.3d 710, 826 N.Y.S.2d 111 [2006]; Bradshaw v. 845 U.N. Ltd. Partnership, 2 A.D.3d 191, 768 N.Y.S.2d 458 [2003];Fields v. City Univ. of N.Y., 216 A.D.2d 87, 628 N.Y.S.2d 76 [1995] ). However, we modify to substitute “unless defendants stipulate” for “unless the parties stipulate” because the only parties required to stipulate to the reduced awards were defendants, as the nonmovants ( see Konfidan v. FF Taxi, Inc., 95 A.D.3d 471, 942 N.Y.S.2d 873 [2012];O'Connor v. Papertsian, 309 N.Y. 465, 471, 131 N.E.2d 883 [1956] ).