McCarthy v Turner Constr., Inc.

McCarthy v Turner Constr., Inc. 2010 NY Slip Op 02018 [71 AD3d 511] March 16, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

John McCarthy et al., Respondents,
v
Turner Construction, Inc., Defendant, and John Gallin & Son, Inc., et al., Appellants. John Gallin & Son, Inc., Third-Party Plaintiff-Appellant, v Linear Technologies, Inc., Third-Party Defendant-Respondent. Linear Technologies, Inc., Second Third-Party Plaintiff-Respondent, v Samuels Datacom, LLC, Second Third-Party Defendant-Respondent.

—[*1] Malapero & Prisco, New York (Frank J. Lombardo of counsel), for John Gallin & Son, Inc., appellant.

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for Boston Properties, Inc. and Times Square Tower Associates, LLC, appellants.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Jerri A. DeCamp of counsel), for Linear Technologies, Inc., respondent.

Murphy & Higgins LLP, New Rochelle (Richard S. Kaye of counsel), for Samuels Datacom, LLC, respondent.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered January [*2]22, 2009, dismissing the third-party complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered May 24, 2007, which, inter alia, denied the motion of defendants Boston Properties and Times Square Tower Associates for summary judgment on their claim for indemnification against third-party defendant Linear Technologies, unanimously dismissed, without costs, as academic.

The trial court correctly denied John Gallin & Son's motion for a directed verdict, since it would not have been "utterly irrational" for the jury to conclude that second third-party defendant Samuels Datacom, plaintiff's employer, was not negligent in connection with plaintiff's fall from a ladder on a construction site (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Nor was the verdict that Samuels was not negligent against the weight of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]).

The argument that the court erred in failing to include on the verdict sheet an interrogatory whether plaintiff, as apart from his employer, was negligent was unpreserved. Were we to consider it, we would nonetheless reject it in light of the clear jury charge and the absence of any indication of jury confusion (see Siagha v Salant-Jerome, Inc., 271 AD2d 274 [2000], lv denied 96 NY2d 714 [2001]; Azzue v Galore Realty, 172 AD2d 467 [1991], lv denied 78 NY2d 856 [1991]).

In light of the above finding, Boston's and Times Square's appeal from the denial of indemnification against Linear is rendered academic. Concur—Friedman, J.P., Catterson, McGuire, Acosta and Renwick, JJ.