Caviness v Sanchez

[*1] Caviness v Sanchez 2006 NY Slip Op 50567(U) [11 Misc 3d 1075(A)] Decided on April 7, 2006 Supreme Court, Bronx County Walker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2006
Supreme Court, Bronx County

GENNELL CAVINESS and LUTHER ALLEN, Plaintiff(s),

against

LUIS GUSTAVO SANCHEZ and DL PETERSON TRUST, Defendant(s).



16315/2002



For the plaintiffs:

Kenneth D. Brown Esq.

by: Brian J. Isaac, Esq.

720 Pelham Parkway South

Bronx, NY 10462 For the Defendant:

McAndrew, Conboy & Prisco, Esqs.

by: Mary C. Azzaretto, Esq.

95 Froehlich Farm Blvd.

Woodbury, NY 11797

Edgar G. Walker, J.

This action was commenced on or about April 22, 2002, as a result of an accident that occurred on September 20, 2001. Plaintiff, Gennell Caviness, was a passenger in a Brinks truck owned by defendant DL Peterson Trust and driven by co-defendant Luis Gustavo Sanchez. Caviness and Sanchez were both employed by Brinks. Gennell Caviness made a claim for and received Worker's Compensation benefits.

On or about June 17, 2003, a motion was made solely on behalf of Luis Sanchez for summary judgment based upon the exclusivity provisions of the Workers Compensation Law. WCL §§ 11; 29(6). This motion was denied by the Hon. Justice Yvonne Gonzalez and a subsequent motion to reargue, made upon the same grounds was also denied. No motion was ever made by defendant DL Peterson Trust on the grounds that it could not be held vicariously liable for the negligence of the co-defendant.

This matter was tried over several days in June, 2005. At the close of plaintiff's case the defendant moved for dismissal of plaintiff's case arguing:

"DEFENSE COUNSEL: At this time your honor, at the close of plaintiff's case, on behalf, first on behalf of Luis Sanchez, I make a motion to dismiss the complaint. Your Honor, I think it is uncontroverted that Mr. Sanchez was an employee of Brinks on the day of the accident, as was the plaintiff, Gennell Caviness. They were both working together on the armored car in the course of their employment. And I think the law is clear under New York Workers' Compensation that you can't bring a suit against a your employer or co-employee. And I think the complaint against Mr. Sanchez should be dismissed immediately.

Against DL Peterson Trust, it's our position plaintiff failed to state a cause of action with respect to liability. The evidence is that Mr. Sanchez was driving the car. There is no evidence that he did anything improper or acted unreasonably. He testified that he was operating the vehicle approximately 20 to 25 miles an hour. He had not had any problems operating the vehicle at any time during that day. He had no problem steering or breaking the vehicle. This was a sudden unavoidable occurrence that took place toward the end of the day. And for those reasons the complaint should be dismissed against DL Peterson Trust, as well and for all the reasons that are set forth in the CPLR." (Emphasis added.) [*2]

The Court granted the motion as to Mr. Sanchez and denied the motion as to DL Peterson Trust, having found more than adequate evidence of Sanchez's negligence, the only ground upon which defendant based its motion. At no time did defendant move to dismiss on the grounds now relied upon in this motion. In fact, after the court's ruling on defendant's motion, out of the presence of the jury, a discussion was held regarding jury charges:

"THE COURT: It will say the defendant was negligent. Was the defendant DL Peterson negligent? And in the course of the instructions I will explain that the owner of the vehicle is responsible for the negligence of the employee. And that is why it's being submitted to them in that form.

PLAINTIFF'S COUNSEL: Your Honor

THE COURT: Do you have any problem with that?

PLAINTIFF'S COUNSEL: Well, I would request, if it is presented like that, that in light or our previous multiple conversations we have all had in your chambers, that the jury be instructed not to draw any negative inference against the plaintiff for defendant being out.

THE COURT: Then if you want me to inform them that [he's] out.

PLAINTIFF'S COUNSEL: It sounds like that's what it's going to be.

THE COURT: Fine. I will inform them and tell them not to draw any inferences. And I'll tell them, you know, this is going to be in the charge anyway at the time I give the charge.

DEFENSE COUNSEL: That's fine Judge."[FN1]

Ultimately, the jury was specifically charged as follows:

"THE COURT: Under the law, an owner of a motor vehicle, including the Brinks truck, is responsible for the injuries resulting from negligence and the use of the operation of the vehicle by a person using or operating it with the owner's permission. In this case it is undisputed the parties have agreed that the defendant DL Peterson Trust was the owner of the truck being driven by Mr. Sanchez. And that Mr. Sanchez was, in fact, operating DL Peterson's truck with DL Peterson's permission. So that's not part of this case that you're going to have to determine. And I charge you as a matter of law that if you find that Luis Sanchez was negligent, you must find that the Defendant, DL Peterson, as the vehicle's owner is responsible for the negligence on the part of Luis Sanchez."

At the conclusion of the charge to the jury the court inquired of counsel whether there [*3]were any exceptions to the charge. While defense counsel took exception to the loss of consortium charge with respect to co-plaintiff, Luther Allen, there was no exception to the vicarious liability charge or any liability charge.

The jury returned a verdict in favor of the plaintiff, Gennell Caviness, in the total amount of $1,381,00.00. The jury made no award to co-plaintiff, Luther Allen. Defendant has not moved on the grounds that the verdict is excessive.

Defendant, DL Peterson Trust, now moves for "(1) An order pursuant to CPLR § 2221 granting the defendant leave to renew and/or reargue the prior Order to Show Cause of the defendant to set aside the jury's verdict and upon rearguement grant defendant's application and dismiss plaintiff's complaint; and (2) Alternatively, an Order pursuant to CPLR § 3025, amending the pleadings to conform to the evidence at trial and therefore dismiss plaintiff's Complaint . . .."

With respect to the motion to renew and or reargue, as noted in the underlying decision, the sole basis upon which defendant originally moved was the absence of subject matter jurisdiction [FN2]. As defendant's attorney concedes in her affirmation in support of the instant motion, there is no issue as to the court's jurisdiction. As no new facts are alleged and rearguement may not be used to advance arguments different from those raised on the original motion, the motion to renew and or reargue must be denied. Rubinstein v. Goldman, 225 AD2d 328 [1st Dept. 1996].

With respect to the motion to amend the pleadings to conform to the proof at trial, defendant correctly argues that "the central issue with which we are presented is not truly an issue of either jurisdiction or Worker's Compensation, but rather the application of vicarious liability." (Affirmation of Mary C. Azzaretto, Esq.,¶ 11.) Defendant is also correct that, under the facts of this case Worker's Compensation was plaintiff's sole remedy and VTL § 388 does not impose vicarious liability upon this defendant. Naso v. Lafata, 4 NY2d 585 [1988]. However, parties to a civil litigation may consent, formally or by their conduct, to the law to be applied. Martin v. City Cohoes, 37 NY2d 162. Given the history of this case defendant's motion must be denied.

CPLR 4110-b provides, in relevant part, as follows:

"No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection." [*4]

Without reference to the charge conference conducted off the record prior to summations, the record is clear that defense counsel explicitly consented on the record to the vicarious liability charge prior to summations and made no objection to its been giving prior to the jury commencing deliberations. Since there was no objection, no cognizance may be taken of what would have been clear error in so charging had defendant objected. Defendant is precluded from arguing that the theory of vicarious liability is not applicable to the facts of this case. Sewar v. Gagliardi Brothers Services, 51 NY2d 752, (Fuchsberg, J., concurring); Freidus v. Eisenberg, 71 NY2d 981.

In Martin v. City Cohoes, supra, a case where plaintiff fell on a public sidewalk, the case was tried on the theory of actual notice, with the City's acquiescence, and the jury was charged, without exception, that plaintiff must prove actual notice. In fact, the City's own local law required prior written notice, which was not and could not be proved. The Court of Appeals upheld the trial court's denial of defendant's motion to set aside the verdict upon the grounds that the requisite notice was never given [FN3].

This case was tried from the outset and throughout on the theory that defendant DL Peterson Trust was liable for the negligence of the defendant driver and the jury was so charged without objection. Defendant never moved to dismiss prior to verdict on the ground which is the sole basis for this motion. Therefore, defendant DL Peterson Trust's motion is, in all respects, denied.



Dated : April 7, 2006_________________________

Hon. Edgar G. Walker, J.S.C. Footnotes

Footnote 1:In an affirmation accompanying the trial transcript submitted to the court, defendant's trial counsel alleges, in conclusory fashion, "At no time during the trial did I affirmatively waive any defense available to my clients with respect to plaintiffs' claims." This claim is belied by his statement "That's fine Judge," when the court stated its intention to charge vicarious liability. It should be noted that the attorney on defendant's initial post trial motion admitted that during the trial his office "did not apprehend the significance of the case law discussed." (Affirmation of Thomas M. Cooper, Esq., ¶ 9.) How counsel can claim to have preserved a defense based on case law he did not "apprehend" is beyond this court's understanding.

Footnote 2:While that decision mentioned that trial counsel failed to interpose the defense now asserted in this motion, the issue of waiver was neither raised nor decided at that time. Again, trial counsel alleges in his affirmation that the court's statement in that decision as to waiver "is not supported by the trial record," to which his affirmation was attached. As noted above, defense counsel had several opportunities on the record to interpose said defense and failed to do so. Significantly, by limiting his allegation to the trial record, counsel does not deny that additional inquiry was made of him off the record, in response to which he explicitly disclaimed any reliance upon the exclusivity provisions of the Worker's Compensation Law.

Footnote 3:The court remitted the matter to the Appellate Division pursuant to CPLR 5613 upon which the Appellate Division affirmed the judgment in favor of the plaintiff. Martin v. City of Cohes, 50 AD2d 1035.