Salazar v Novalex Contr. Corp.Annotate this Case
Plaintiff commenced a lawsuit against 96 Rockaway, LLC, Novalex Contracting Corp., and T-Construction Co., Inc., alleging among other things, violations of Labor Law 240(a) and 241(6). Discovery and a third-party action ensued. T-Construction moved for summary judgment, seeking dismissal of the complaint, and all cross-claims against it. 96 Rockaway and Novalex cross-moved for identical relief. Supreme Court granted defendants' motions, and dismissed plaintiff's complaint in its entirety. The Appellate Division reversed so much of Supreme Court's order as granted defendants' motions for summary judgment dismissing plaintiff's claims, denied the motions, and reinstated those claims. The court held that, given that Labor Law 240(1) should be construed with a common sense approach to the realities of the workplace at issue, defendants were entitled to summary judgment dismissing that claim. Plaintiff's Labor Law 241(6) cause of action, predicated on a violation of 12 NYCRR 23-1.7(b)(1)(i), failed for similar reasons. Accordingly, the order of the Appellate Division was reversed.
Decided on November 20, 2012
[*1]Tina M. Holstein, Respondent,
Community General Hospital of Greater Syracuse, Appellant.
Myra I. Packman, for appellant.
John A. Cirando, for respondent.
The order of the Appellate Division should be affirmed, with costs.
Plaintiff Tina Holstein commenced this medical malpractice action seeking damages for injuries she sustained based on the alleged negligence of an employee of defendant Community General Hospital of Greater Syracuse (the Hospital). Following trial, the jury [*2]returned a verdict on liability, by a vote of five to one, in favor of Holstein and awarded approximately $1.7 million in damages. After the verdict was announced, the Hospital requested that the jury be polled. In response, the court remarked: "Jury be polled? They have signed. They each have individually signed." The Hospital's counsel stated: "Okay. All right. Thank you" and the jury was dismissed. Two weeks later, the Hospital moved to set aside the verdict and requested a new trial. Supreme Court denied the motion and the Appellate Division affirmed Supreme Court's judgment awarding plaintiff damages (86 AD3d 911 [4th Dept 2011]).
In Duffy v Vogel, we held that a party has an absolute right to poll the jury and a court's denial of that right mandates reversal and a new trial (12 NY3d 169, 176-177 ). In this case, however, it was not unreasonable for the trial court to conclude that the request had been withdrawn or waived in light of the nature of counsel's response to the judge's inquiry.
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Order affirmed, with costs, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.
Decided November 20, 2012