Ulses v Zeckondorf Bros. Realty Ltd. Partnership Company

[*1] Ulses v Zeckondorf Bros. Realty Ltd. Partnership Company 2010 NY Slip Op 51139(U) [28 Misc 3d 126(A)] Decided on July 2, 2010 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570848/07

Michael Ulses and Holly Ulses, Plaintiffs-Appellants- Respondents,

against

Zeckondorf Brothers Realty Limited Partnership Company, J.A. Jones-GMO, LLC, and Atlantic Heydt Corporation, Defendants-Respondents- Cross-Appellants.

Plaintiffs appeal from those portions of an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered December 31, 2007, which, upon a jury verdict awarding plaintiff Michael Ulses $1,250,000 for past pain and suffering, $500,000 for future pain and suffering, $541,454 for past lost wages and $2,362,244 for future lost wages, and awarding plaintiff Holly Ulses $2,000,000 for loss of past services and society, granted (1) defendant Atlantic Heydt Corporation's motion pursuant to CPLR 4404 to set aside the verdict as against it and directed judgment in its favor, and (2) the motion of defendants Zeckondorf Brothers Realty Limited Partnership Company and J.A. Jones-GMO, LLC, to set aside the verdict as against them to the extent of ordering a new trial on the issue of damages unless plaintiffs stipulated to accept reduced awards of $50,000 for past pain and suffering, $20,000 for future pain and suffering, and $15,000 for loss of past services and society. Defendants Zeckondorf and J.A. Jones cross-appeal from those portions of the aforesaid order which denied their CPLR 4404 motion seeking (1) to set aside the verdict as against them on plaintiff Michael Ulses' claims for past and future lost earnings, and (2) contractual indemnification against Atlantic, and that portion of the aforesaid order which granted Atlantic's motion to set aside the verdict as against it.

Per Curiam.

Order (Arlene P. Bluth, J.), entered December 31, 2007, modified by granting that branch of the motion of defendants Zeckondorf Brothers Realty Limited Partnership Company and J.A. Jones-GMO, LLC seeking contractual indemnification against defendant Atlantic Heydt Corporation and directing judgment in favor of Zeckondorf and J.A. Jones against Atlantic on their claim for contractual indemnification, and granting that branch of the motion of Zeckondorf and J.A. Jones to set aside the verdict in favor of plaintiffs as against Zeckondorf and J.A. Jones on the issue of damages to the extent of directing a new trial on damages unless, within 45 days [*2]of service upon plaintiffs of a copy of this order with notice of entry, plaintiffs and Zeckondorf and J.A. Jones stipulate to (1) increased awards of $350,000 for past pain and suffering, $200,000 for future pain and suffering and $75,000 for loss of past services and society, and (2) reduced awards of $135,363.50 for past lost wages and $590,561 for future lost wages; as so modified, order affirmed, without costs.

Civil Court properly granted that branch of defendant Atlantic's motion seeking to set aside the verdict as against it on plaintiffs' negligence claim, since the trial evidence failed to demonstrate that any negligence on Atlantic's part proximately caused plaintiff Michael Ulses' injuries.

However, in light of the broad indemnification provisions of the contract between Atlantic and Jones, which afforded indemnification to both Zeckondorf (the owner of the premises) and Jones (the general contractor on the project), Zeckondorf and Jones were entitled to judgment on their cross claim for contractual indemnification (see Di Perna v American Broadcasting Co., 200 AD2d 267 [1994]; cf. Worth Constr. Co. v Admiral Ins. Co., 10 NY3d 411 [2008]). The indemnification provision stated, in pertinent part, that Atlantic was required to indemnify Zeckondorf and Jones for all claims "of any nature whatsoever which arise out of or are connected with: ... 2. Any accident or occurrence which happens, or is alleged to have happened in or about the place where [Atlantic's] work is being performed or in the vicinity thereof (a) while [Atlantic] is performing the work, either directly or indirectly through a subcontractor ... or (b) while any of [Atlantic's] property, equipment or personnel are in or about such place or the vicinity thereof by reason of or as a result of the performance of the work." Here, plaintiffs alleged and the trial evidence demonstrated that the accident, in which plaintiff was struck in the face by a pipe while assisting in the dismantling of scaffolding, happened both "in or about the place where [Atlantic's] work [wa]s being performed or in the vicinity thereof ... while [Atlantic] was performing the work" and "while any of [Atlantic's] property, equipment or personnel [we]re in or about such place or the vicinity thereof by reason of or as a result of the performance of the work."

In light of the injuries sustained by plaintiff Michael Ulses, including a fractured nasal septum, disc injuries and post-concussion syndrome, the trial court also properly determined that the damage awards for past and future pain and suffering were excessive; however, those awards were only excessive to the extent indicated (see generally Cassuto v City of New York, 23 AD3d 423 [2005]; Smith v Monro Muffler Brake, 275 AD2d 1028 [2000]; Martino v Triangle Rubber Co., 249 AD2d 454 [1998]; Duff v Mariani, 248 AD2d 905 [1998]). Similarly, while the trial court was justified in determining that the award for past loss of services and society was excessive, that award should only have been reduced to $75,000 (see generally Sienicki v 760 W. End Ave. Owners, 23 AD3d 271 [2005]).

We conclude that the awards for past and future lost earnings must also be reduced, since those awards were not justified by the trial evidence. Critically, plaintiffs' labor economist, upon whose testimony the awards for lost earnings were premised, made certain unfounded assumptions in rendering his opinion, including his assumption regarding the number of hours plaintiff Michael Ulses would have worked as an iron worker had he not been injured in the accident. In light of the expert's unduly inflated estimate regarding the number of hours Mr. Ulses would have worked, as well as Mr. Ulses' prior medical history and personal, educational [*3]and vocational background, the awards for past and future lost earnings are excessive to the extent indicated (see generally Vukovich v 1345 Fee LLC, 72 AD3d 496 [2010]).

We note that we have not considered Zeckondorf and Jones' arguments regarding the efficacy of the denial of their motion for renewal of a prior order granting plaintiffs' motion for summary judgment on the issue of liability on their labor Law § 240(1) cause of action, since Zeckondorf and Jones failed to perfect an appeal from the order denying renewal and the appeal from the non-final order presently before us did not bring up for review the prior interlocutory order (cf. CPLR 5501).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 02, 2010