Terranova v New York City Tr. Auth.

[*1] Terranova v New York City Tr. Auth. 2005 NY Slip Op 51441(U) [9 Misc 3d 1107(A)] Decided on August 23, 2005 Supreme Court, Richmond County Vitaliano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 23, 2005
Supreme Court, Richmond County

EDWARD TERRANOVA and DEBORAH TERRANOVA, Plaintiff(s),

against

NEW YORK CITY TRANSIT AUTHORITY, Defendant(s).



13946/02



PLAINTIFF ATTY: MORTON POVMAN, ESQ.

108-18 QUEENS BOULEVARD

FOREST HILLS, NEW YORK 11375

718-268-3000

DEFENSE ATTY: WALLACE D. GOSSETT, ESQ.

130 LIVINGSTON STREET - 10TH FLOOR

BROOKLYN, NEW YORK 11201

718-694-3864/65; and

KEVIN BIGELOW, ESQ.

JEFFREY SAMEL & PARTNERS

150 BROADWAY

NEW YORK, NEW YORK

Eric N. Vitaliano, J.

Plaintiff Edward Terranova ("Terranova") was a New York City firefighter. On April 4, 2002, Firefighter Terranova was on duty with one of the units of the New York City Fire Department called to extinguish a blaze at the Yukon Avenue Bus depot owned and operated on Staten Island by defendant New York City Transit Authority ("Transit Authority"). Alleging that he was injured while extinguishing the fire at the depot, Terranova sued the Transit Authority on theories of ordinary negligence and for violation of New York General Municipal Law §205-a, which creates a statutory right of action for any firefighter injured in the line of duty where the injury is occasioned directly or indirectly as a result of any violation of a statute, ordinance or rule. At trial, plaintiff would opt to proceed under the relaxed causality requirements of General Municipal Law §205-a, see Giuffrida v. Citibank Corp., 100 NY2d 72, 760 NYS2d 397 (2003), [*2]and to discontinue his ordinary negligence claim with prejudice [FN1].

A firefighter's §205-a claim, however, cannot be successful without grounding on a proved violation of a codified standard. To meet that burden, Terranova alleged that the premises in which he was injured while fighting the fire was designed, built and maintained by the Transit Authority in violation of several provisions of the New York City Building Code, as set forth in title 27 of the Administrative Code of the City of New York ("Code"). The violations upon which liability was predicated fell into two basic categories: design and construction violations, on the one hand, and maintenance violations, on the other.

A bifurcated trial of the action was had before this Court sitting with a jury. The jury found that the Transit Authority had violated all of the sections of the Code plaintiff claimed it had violated. In the damages phase of the trial, the jury awarded Terranova $178,000 in past lost earnings, $700,000 in future lost earnings, $90,000 for past pain and suffering and $100,000 for future pain and suffering. Defendant now moves pursuant to CPLR§§4404 (a) and 4545(c) for post-verdict relief in the form of an order: (1) setting aside the verdict as against the weight of the evidence, (2) setting aside or remitting the verdict as excessive as a matter of law and, in the event the verdict is not set aside, alternatively, (3) for a collateral source hearing. The motion is granted in part and denied in part.

Predicate Code Violations

Defendant's attack on the sufficiency of the verdict is trained on the evidentiary proof of the design and construction code violations alleged by plaintiff. Specifically, plaintiff contended that the space at the depot in which plaintiff fought the fire and sustained his injuries was designed and constructed with a floor level which violated Code § 27-371 (h), that it had an entrance door height which violated Code § 27-371 (f), that its floor space could be accessed solely by a stairway with landings and platforms out of compliance with Code § 27-375 (d) and with guards and handrails out of compliance with Code § 27-375 (f). The Transit Authority admitted that it owned and operated the depot, but vigorously denied the design and construction code violations. As to each claim, the jury unanimously found otherwise. The special questions submitted to and answered by the jury evidenced their determination that defendant had violated each of the sections of Code charged by Terranova and that each of the violations was a direct or indirect cause of the accident. The Transit Authority's instant challenge to these findings made by the jury is without merit.

At pretrial conferences to deal with contentious matters in limine, there was considerable shadow boxing by the parties regarding the applicability of the New York City Building Code to the subject premises designed, built, maintained and operated by the Transit Authority. It was decided by the Court as a matter of law, as required, see Wirth v. DeVito, 74 App. Div. 2d 827, 425 NYS2d 179 (2d Dep't 1980), that the New York City Building Code adopted in 1968 did apply to the subject structure. The ruling, as it turned out, only begged the real question, that is, a determination of which of the conflicting characterizations of "space" used in the Code applied to the specific space at the depot where the accident occurred. The Code itself, in §27-104, [*3]recognizes the difficulty of pigeonholing a particular structure or use and mandates that the Code "shall be liberally interpreted to secure the beneficial purposes thereof." Such "code interpretations" have been a constant source of bedevilment for architects, engineers, fire officials and code enforcement authorities. See Richmond Dance Ensemble, Inc. v. City of New York, Index No. 080069/05 (Sup. Ct., Richmond County March 28, 2005). It was again here and also, not surprisingly, the process of resolving the conflict was heavily fact dependent.

Now, clearly, while a determination as to whether a code or statute is applicable in a given dispute is left exclusively for resolution by the trial court as a matter of law, as was done here, where "there exists conflicting evidence [as to applicability of the code or statutory provision to a specific factual dispute], determination of the controversy is left to the fact finder." Goncalves v. Regent International Hotels, Ltd., 58 NY2d 206, 218, 460 NYS2d 750, 756 (1983). That, too, is what the factual dispute here required and what was done at trial. To be specific, based on the testimony concerning the use of the space in question, there was a factual controversy as to whether the accident occurred in "occupiable" or "nonoccupiable" space, as those terms are used in the Code. Given the conflict, testimony regarding the practical interpretation of the Code and its application to the Transit Authority's use of the space was more than appropriate and helpful. It was, essentially, required by Code §27-104. Indeed, it was the basis on which both plaintiff and defendant tried the liability phase of the lawsuit. Both sides called an expert because such code interpretation is beyond the ken of an ordinary juror. Defendant now argues, at bottom, that the opinion offered by plaintiff's expert, Anthony Mellusi, cannot support the verdict.

The Transit Authority's lament is more than a trifle late. Plaintiff spread on the record and before the jury Mr. Mellusi's qualifications as a consulting safety engineer. Defendant sought no voir dire. The Transit Authority interposed no gatekeeping objection to his testimony. Nor was there a motion at any time offered by the Transit Authority to strike the testimony of Mr. Mellusi on the basis of lack of qualification or for any other reason. Defendant cannot be heard to complain now that Mr. Mellusi's testimony was not properly before the jury.

Even if it could, the result would not change. Armed with plaintiff's expert disclosure pursuant to CPLR 3101 (d), defendant had determined strategically to attack Mr. Mellusi as a lightly qualified witness and, perhaps, thereby derivatively diminish his conclusions. To that end, defendant embarked on a withering examination of Mr. Mellusi's background and experience. The Transit Authority's counsel used Mr. Mellusi's highlighted shortcomings on summation in an obvious effort to discredit him and to bolster the standing of its own more highly-credentialed expert, Vincent Ettari. Mr. Ettari, of course, disagreed with Mr. Mellusi as to which Code term, "occupiable" or "nonoccupiable", best described the space where the fire occurred. Mr. Mellusi testified that, as "occupiable" space, the design and construction of the space where the fire burned violated the Code. In Mr. Ettari's view, none of the design and construction provisions of the Code Mr. Mellusi claimed the Transit Authority violated were applicable to the space where the fire blazed because, in his view, the space was"nonoccupiable", given the use the Transit Authority intended, and, therefore, was not required to be compliant with the Code provisions identified by Mr. Mellusi.

The net result of it all was that plaintiff had established on the record that Mr. Mellusi [*4]was a consulting safety engineer, licensed by the United States Coast Guard (but not licensed as a professional engineer in New York), that he had by experience knowledge and conversancy with the New York City Building Code and had been called upon to offer opinions with respect to compliance with it. Defendant had attacked in very effective fashion the breadth and depth of Mr. Mellusi's knowledge and experience but did not move against the admissibility of his testimony. As a result, the sufficiency of Mr. Mellusi's testimony became, as the Court believes it should have become in any event, a question of weight to be determined by the jury. The jury clearly and resoundingly resolved that question in favor of Mr. Mellusi, crediting his testimony and making findings that there were, indeed, predicate design and construction violations which were directly or indirectly related to the accident.

The intensity of the controversy over which Code term best characterized the space overlooks the far more important reality that plaintiff offered the jury a menu of predicate code violations which extended beyond design and construction violations. The extended menu ultimately and dispositively resolves the dispute over the propriety of the liability verdict. Terranova was not required to establish each and every violation on his menu. All that was needed was to establish one of the violations. Without question, plaintiff did at least that.

Specifically, plaintiff contended that the Transit Authority did not maintain the depot space in which the fire took place in accordance with the requirements of Codes §§27-127 and 27-128. On this point, there was no dispute. Defendant did not challenge the applicability of these sections to the space in issue. More critically, there was absolutely no evidence presented to contradict the claim that there had been a build up of rubbish and debris at the site of the fire, in violation of the Code, and that the rubbish and debris fueled the fire which brought Terranova to the scene and his ultimate fate. That there was such a violation of both code sections is undeniable based on the testimony of Terranova and Joseph J. O'Callaghan, the Transit Authority employee who was assigned to clean up the space in the aftermath of the fire. If there was error in the liability trial, it was in submitting this issue to the jury at all. Plaintiff was entitled to a directed verdict on his motion to the extent, at least, that there were predicate violations of Code §§27-127 and 27-128 by the Transit Authority. Accordingly, even if the Court were to strike now all of Mr. Mellusi's testimony and toss out the jury's findings with respect to violation of the design and construction provisions of the Code, the jury's finding that the Transit Authority had violated Code §27-127 or §27-128 would stand as would their subsequent determination that a violation of either one of those sections alone was a direct or indirect cause of Terranova's accident. Put another way, defendant's motion to set aside the verdict for failure to establish the design and construction code violations is academic because the unassailed proof of maintenance violations without Mr. Mellusi's testimony was more than sufficient to mandate a directed verdict on that issue to the same effect as the jury's verdict. Therefore, the branch of the Transit Authority's motion to set aside the verdict of the jury as against the weight of the evidence must be denied.

Excessiveness of the Damages

The second branch of the motion seeks relief from what defendant argues is an award of excessive damages by the jury. The totality of the damages awarded is not in issue. While the Transit Authority seeks to torpedo the awards for lost earnings, it does not challenge the awards for pain and suffering. The challenge it does assert is meritless. [*5]

Girded by documentary proof showing that Terranova earned on the order of $70,000 in his last complete year of fire duty, the jury's awards of annual lost earnings around that level both for past and future lost wages is, clearly, supportable. With the awards so supportable, the Transit Authority's attack is more nuanced. Its objection isn't that Terranova could not have earned wages as a firefighter in the amounts determined by the jury. Rather, it is that he could have mitigated his loss by finding other work sedentary in nature to offset his loss and did not.

Defendant's plaint that Terranova should "get a job" was, however, more than neutralized by evidence that he had graduated college more than 20 years before the accident, that he had little experience with nonphysical work, and that he continued to suffer chronic pain and impairment. Furthermore, the Transit Authority presented no evidence as to the existence of any job in any relevant labor market for which the plaintiff could qualify nor evidence of the level of compensation any such hypothetical job would pay. On close analysis, the jury's awards for lost earnings were supported by solid payroll records while the uncalculated claim of mitigation from hypothetical job opportunities could be founded only on sheer speculation. Defendant's proffer on this branch of the motion is devoid of any showing in admissible form or otherwise that the jury's verdict deviates in any material way from compensation reasonable for such circumstances.

Based on the record, the jury's awards for past and future lost earnings are not excessive and, certainly, not against the weight of the evidence. Defendant is entitled neither to a new trial on this issue nor a remittitur. The second branch of the motion seeking such relief is, perforce, denied.

Collateral Source Hearing

The tort system at common law was designed not only to secure compensation for those hurt by a wrongful act but also to punish the wrongdoer. Inchaustegui v. 666 5th Ave., L.P., 96 NY2d 111, 116, 725 NYS2d 627, 631 (2001). Given the punitive and prophylactic aspects of such punishment, common law did not permit collateral source payments to run to the benefit of the wrongdoer. The culpable party was to make full recompense to his victim, even if the existence of a collateral source meant that the victim received a windfall double recovery.

Times have changed. CPLR §4545 (c), under which defendant petitions for relief, was part of a statutory scheme enacted in derogation of common law and designed to eliminate the double recoveries common law allowed to plaintiffs. It was not, on the other hand, designed to provide undeserved financial relief to culpable defendants. Bryant v. New York City Health and Hospitals Corporation, 93 NY2d 592, 607, 695 NYS2d 39, 47 (1999). Enacted in this fashion, CPLR §4545(c) is to be strictly construed to limit the change it works in common law. Oden v. Chemung County Industrial Development Agency, 87 NY2d 81, 85, 637 NYS2d 670, 671 (1995).

That acknowledged, plaintiff's argument in opposition to the Transit Authority's request for a hearing to determine whether or not there are any collateral source benefits which should offset any portion of the jury's awards is not a winning one. There is no question that Terranova is receiving some form of governmental benefits, at least a three-quarters disability pension as a result of the line of duty injury from the subject accident. He contends, nonetheless, that none of these payments can qualify, as a matter of law, under CPLR §4545(c) as a collateral source. And, it may be so. But, it is the Court's view that such determinations can be made more [*6]prudently and efficiently after a hearing is held at which time specific proof can be adduced as to the nature of any benefit received and whether the benefit could properly be deemed to offset any portion of the jury's awards. At such hearing, to be sure, it will be the Transit Authority's burden to establish its entitlement to a collateral source offset with proof of such a high degree of certainty that it amounts to clear and convincing evidence. Caruso v. Russell P. LeFrois Builders, Inc., 217 App. Div. 2d 256, 258-59, 635 NYS2d 367, 369 (4th Dep't 1995). Having demanded the opportunity, the Court holds that the Transit Authority is entitled to a hearing. The third branch of the Transit Authority's motion for a collateral source hearing is, accordingly, granted to that extent.

For all the foregoing reasons, defendant's motion pursuant to CPLR §4404 (a) and 4545(c) is determined as follows: (1) an order setting aside the verdict of the jury as against the weight of the evidence is denied; (2) an order setting aside or remitting a portion of the damages awarded by the jury as excessive is denied and (3) an order directing that a collateral source hearing be held is granted and such hearing is hereby directed to be calendared by the Clerk for September 29, 2005.

This constitutes the Decision and Order of the Court.

Dated: Staten Island, New York_______________________________

August 23, 2005Eric N. Vitaliano

J.S.C. Footnotes

Footnote 1:Liability under §205-a cannot be offset by any comparative fault of the injured firefighter. The decision to discontinue the ordinary negligence claim also offered plaintiff the strategical advantage of rendering inadmissable any proof or argument to establish negligence on Terranova's part. Mrs. Terranova's derivative claim, of course, was lost with the discontinuance of the cause of action in ordinary negligence.