Hernandez v Ten Ten Co.

[*1] Hernandez v Ten Ten Co. 2009 NY Slip Op 52618(U) [26 Misc 3d 1201(A)] Decided on December 24, 2009 Supreme Court, New York County York, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2009
Supreme Court, New York County

Daniel Hernandez and Rosalina Pichardo, Plaintiff,

against

Ten Ten Company a/k/a 1010 Company, 1010 Company, Prudential Securities, Inc., Schmergel Construction Corp., and USA Illumination, Inc., Defendants



The 1010 Company, LP, i/s/h/a Ten Ten Company a/k/a 1010 Company and 1010 Company, Third-Party Plaintiffs,

against

Prudential Securities, Inc., Third-Party Defendant,



Schmergel Construction Corp., Second Third-Party Plaintiff,

against

Roland's Electric, Second Third-Party Defendant.



125067/00



Attorneys for Plaintiff:

Trolman, Glasser & Lichtman, Esqs.

777 Third Avenue

New York, NY 10017

By: David B. Corley, Esq.

Attorneys for Defendant

Ten Ten Company:

DeCicco, Gibbons & McNamara, P.C.

14 East 38th Street New York, NY 10016

By: Joseph T. Gibbons, Esq.

Attorneys for Defendant

Prudential Securities, Inc.:

O'Connor, O'Connor, Hintz & Deveney, LLP

One Huntington Quadrangle

Melville, NY 11747

By: Robert E. O'Connor, Esq.

Attorneys for Defendant/

Third-Party Plaintiff

Schmergel Constru. Corp.:

Baxter, Smith, Tassan & Shapiro, P.C.

99 North Broadway

Hicksville, NY 11801

By: Dennis S. Heffernan, Esq.

Harold Campbell, Esq.

Attorneys for Third-Party

Defendant-Roland's Electric:

Havins, Rosenfled, Ritzert & Varriale, LLP

114 Old Country RoadSuite 3000

Mineola, NY 11501

By: Gail L. Ritzert, Esq.

Louis B. York, J.

The Court consolidates motion sequence numbers 020, 021, 022 and 023 for the purposes of this decision.

Background

At the jury trial of this action, the evidence established that Ten Ten company ("Ten Ten") leased its premises to co-defendant Prudential Securities, Inc. ("Prudential"). Prudential then renovated the premises, which included the installation of a number of fixtures.

When certain fixtures failed to function, Schmergel Construction Corp.("Schmergel") the general contractor, notified Roland's Electric ("Roland's"), the electrical subcontractor who installed the electrical fixtures. Roland's notified former defendant USA Illumination [FN1], the manufacturer of the fixtures, which, in turn, notified non-defendant Knight Electrical [*2]("Knight"). Knight sent plaintiff, an experienced electrician, to examine the problem. Plaintiff reported the problems to Knight, and then was instructed to go back to fix the problem. While working on the problem, plaintiff received an electrical shock, causing him to fall off the ladder and to suffer serious injuries.

Plaintiff alleges that an ungrounded wire and no one assigned to turn the power on and off as he was testing was the reason for his getting an electric shock. All of the defendants claim that his negligent failure to have the electricity turned off while he was testing the fixture, and not having the loose wire grounded, was the cause of plaintiff's injuries.

Plaintiff produced evidence of fibula and tibia fractures. He underwent surgery which included drilling through the bone and inserting a rod and screws into the bone from knee to ankle. The plaintiff claims that he is now totally and permanently disabled, as testified to by Dr. Shields, a neurologist, and Dr. Kaplan, an orthopedist. Defendants' medical expert, Dr. Saberski, testified that plaintiff cannot perform either physical or sedentary labor.

The Verdict

The jury returned a verdict of $1,000,000 for plaintiff Hernandez' pain and suffering for the eight years prior to the verdict, and $2,166,666.67 for future pain and suffering over 25.8 years. It awarded him $638,053 for lost wages from the time of his injury to the time of the verdict and for future lost wages in the sum of $1,298,035 over 10.8 years.

Pain and Suffering

Plaintiff has persistent back pain, and an altered gait, limitation of motion in both the right knee and ankle, and needs crutches or a wheelchair to get around. Mr. Hernandez suffers from depression for which he has been medically treated. He no longer has physical relations with his wife. Plaintiff has also suffered from a sleep disorder for which he receives medication, and from pain in his hands because of his use of crutches for which he also receives medication.

Plaintiff does not take his children to the park as he used to, and no longer goes out with his wife for entertainment or to visit friends. The jury heard that he mostly stays at home, often crying.

Loss of Services and Society

As to co-plaintiff Pichardo, Mr. Hernandez' wife, the jury only awarded her $341,666.66 for loss of services and society up to the time of the verdict and nothing for the future. The evidence established that she and her husband used to go out to dinner and the

movies, take trips and socialize with friends, activities that they no longer engage in. They had a normal sex life, and before the accident he would frequently help with household chores. He was able to work and support his family.

Earnings

The plaintiff introduced W-2 and FICA earnings statements which showed that as an [*3]electrician he would have earned about $70,000 in the year he was injured.

Motions

The defendants move for a Judgment NOV, or a Directed Verdict in their favor. Alternatively, they move to set aside the verdict and order a new trial because the Court accepted inadmissible hearsay and improperly charged the jury with a missing documents charge. Alternatively, they move for a reduction in the verdict as excessive, and for a collateral source hearing. Defendants also move for a hearing pursuant to CPLR 50-B. The defendants variously move against each other for indemnification.

In determining that there was sufficient evidence to support the verdict, with the exception discussed infra, the Court denies the motions for a directed verdict or Judgment NOV, and also denies the portions of their motions to set aside the verdict as not supported by the evidence and as excessive.

Decision

Great deference is accorded to a jury's verdict in tort cases when deciding a motion to set aside a verdict as against the weight of the evidence (Chdewinski v Wisnicki, 21 AD3d 791, 801 NYS2d 576 [1st Dept 2005]).

A verdict should only be set aside as against the weight of the evidence where it is palpably wrong and the jury could not have reached its conclusion upon any fair interpretation of the evidence.

Rivera v 4064 Realty Co., 17 AD3d 201, 203, 794 NYS2d 18 [1st Dept 2005]

On this record, the Court finds that there was overwhelming evidence to justify the jury's verdict.

Defendants argue that the Court erred in giving a missing documents charge as there was no evidence that such a document existed (Tr. 1573). Yet there was ample evidence that such a document was prepared or should have been prepared, and was never produced. Mr. Schmergel, who was the principal of co-defendant, Ten Ten, the owner of the premises and the principal of Schmergel, the general contractor, testified that the general practice in any of his companies where construction is going on is to prepare an accident report. Mr. Schmergel also testified that in the instant situation, an accident report should have been prepared. Richard Olsen, the construction manager for Schmergel, stated that an accident report should have been prepared. Finally, Mr. Hayes, the building manager for Ten Ten, testified that an accident report should have been prepared, and there was no reason to believe that none was prepared for the accident that occurred here. While the missing document charge was clear that the jury could decide from the above evidence that there was a missing document, it was also clear that they could find no such document was prepared and they could have found for the defendants on this issue. But they didn't.

Defendants have incorrectly argued that 23 NYCRR 23-1.13(b) (4) of the Industrial Code was not violated. Therefore, they claim there was no violation of Labor Law §241(6). The pertinent section of the Code prohibits an employer from allowing an employee to work [*4]on electrical circuits unless he is protected from electric shock by de-energizing the circuit and grounding it or by providing sufficient insulation. Clearly, this was not done. Such a failure is a sufficient basis for finding liability under Labor Law §241(6). There was sufficient evidence in the record to show that the wire was improperly grounded and the power was on to establish a violation of the Industrial Code and, together with a notation in the hospital record that plaintiff's arms contained a redness associated with being burnt, to defeat the argument that the plaintiff was not, in fact, shocked.

Defendants also argued that no evidence was presented as to what caused the shock. Quite simply and directly, what caused the shock as testified to by plaintiff, an experienced electrician, was the ungrounded circuit line with the power turned on.

There is a claim that the Court erred in allowing the plaintiff's testimony that his supervisor told him not to touch the ungrounded circuit lines, because such a statement was hearsay. The statement is a verbal act, which is not subject to the hearsay rule (People v Back Than, 80 NY2d 170, 179 603 [1992]). It is not offered for the truth of the contention that plaintiff should not touch the ungrounded circuit line, but is offered as evidence of a command that does not assert a fact (See, dissent in People v Ozuna, 27 AD3d 339, 342, 811 NYS2d 646, 649 [1st Dept 2006]). "Tell your son to call me" would appear to be a verbal act' ...". In substance, it amounts to a statement by the complainant that she was giving her permission to defendant or asking to have her son call her. In general, these statements calling for future acts are not hearsay, but verbal acts.

The Appellate Division reversed a trial court's decision and ordered a new trial where the judge did not allow the jury to hear evidence of a statement on the ground that it was hearsay. The First Department held that defendant's theory that the alleged injury in a personal injury lawsuit was a sham was not hearsay, but rather "a verbal act" (People v Salko, 47 NY2d 230, 239-240, 417 NYS2d 894, 391 NE2d 976; See, also, Kuci v Manhattan and Bronx Surface Transit, 219 AD2d 486, 487)[statement was not hearsay but a verbal act].One lesson to be learned from these cases is that contrary to popular opinion, not all testimony about statements made by others are hearsay.

There is no merit to the argument that plaintiff failed to set forth a sufficient foundation for his lost wages claim because he did not produce a vocational expert. Plaintiff's doctors established that he was permanently and totally disabled and unable to hold any job requiring either sitting or standing. Under plaintiff's evidence, why would a vocational expert be required, as plaintiff's medical evidence shows that plaintiff is now incapable of holding any job. See, Rubin v First Ave Owners, 209 AD2d 367, 618 NYS2d 793 [1st Dept 1994]) where the Court affirmed the award of damages "in view of the testimony of plaintiff's medical expert with respect to the permancy of her pain, loss of function, nerve damage and deformity of ...". See, also, Roux v Caiola, 254 AD2d 182, 675 NYS2d 53 [1st Dept 1998].

The Court notes that defendants failed to call their own economist to possibly challenge plaintiff's economist's conclusions. His testimony, along with the record of [*5]plaintiff's record of earnings, and the plaintiff's medical testimony were sufficient to justify the jury's determination of lost earnings and to survive defendants' challenge.

The jury's award of $1,000,000 for past pain and suffering and $2,166,666.67 for future pain and suffering amounting in all to a total award of $3,166,666.67 is amply justified by the level of plaintiff Hernandez' pain and suffering and disability as described above, despite defendants' protestations to the contrary.

For some time, the trial courts have adhered to the CPLR 5501 standard (although originally enacted for the use of the Appellate Division), which instructs that the standard for evaluating an award of damages is whether it deviates from what would be considered reasonable compensation. This has prompted the trial courts to compare the award with awards for similar injuries. See, e.g. Allen v Amzoski, 2 Misc 3d 1001(A).

In addition to the fibula and tibia fractures, plaintiff suffers from Reflex Sympathetic Dystrophy ("RSD"). This is a disease that exacts excessive pain from stimuli that ordinarily wouldn't cause pain in the absence of such a disease. Moreover, it grows worse with repetition of the stimuli. It is accompanied by swelling and temperature change. One case in this jurisdiction awarded $1,500,000 for RSD alone (Jefferies v 3520 Broadway Management Co., 36 AD3d 421, 827 NYS2d 136 [1st Dept 2007]). An award of $1,200,000 for this disease was made next door in the Second Department, Brown v City of New York, 309 AD2d 778, 765 NYS2d 803 [2d Dept 2003]. In Valentine v Lopez, 283 AD2d 739, 725 NYS2d 714 [3d Dept 2001], cited by third-party defendant, in a case decided over eight years ago, the Court stated that awards for this type of disease ranged up to $1,500,000 and in a recent decision in this department the Appellate Division upheld a pain and suffering award for tibia and fibula fractures amounting to $1,000,000 for past pain and suffering and $1,000,000 for future pain and suffering (Singh v Gladys Towncars, 42 AD3d 313 839 NYS2d 734 [1st Dept 2007]).

With regard to the plaintiff's fibula and tibia fractures, it is well to recollect that there was evidence that plaintiff also suffers from permanent loss of range of motion in both his right knee and right ankle. In fact, defendant's medical expert testified that plaintiff suffers from peroneal nerve injury where he had the fractures.

An award a decade ago of $1,500,000 for past and future pain and suffering for severe back injuries, also testified to in the trial, was upheld by the First Department in Gonzalez v Rosenberg, 247 AD2d 337, 669 NYS2d 216 [1st Dept. 1998].

As can be seen, awards for tibia and fibula fractures, RSD and back injuries, all of which the plaintiff suffers from, at the high end level of awards for these injuries, fully justify the jury's award for pain and suffering in this case.

Roland's makes the disingenuous argument that because I ordered the production of Gale's Records after a witness for the defendants stated that he made conclusions based on them, they should be accepted in evidence. Plaintiff had raised the issue that these records had never been produced before even though they were demanded during discovery and asked that these records be produced now, which the court ordered be done. Thereafter, the [*6]records were produced and then defendant sought to put them into evidence. The Court denied their introduction. Even though plaintiff may have opened the door to this evidence, the greater harm was to allow them into evidence when the previous representation was that

they were unavailable and were never made available until now. Also, it is highly doubtful, even though the door was opened, that the defendant could have established a proper foundation for the introduction of the document. Even though the issue may have been addressed, that does not do away with the rules of evidence, and there was no proper witness present to lay a foundation for the report to be accepted in evidence.

Plaintiff Prichardo, plaintiff Hernandez' wife, was awarded $341,666.66 for the loss of her husband's services and society over the eight years leading up to the time of the verdict. Curiously, she was awarded nothing for her future loss of services. This award was not excessive. In Villaseca v City of New York, 48 AD3d 218, 852 NYS2d 64 [1st Dept 2008], on appeal, the award for the loss of the plaintiff wife's loss of services was $250,000 up to the date of the verdict and $500,000 for future loss of services. However, in that case the Court only awarded for loss of services. There was no mention of loss of society. In this action, there is evidence of the total loss of a formerly active sex life. Under such circumstances, the present award for loss of services and society is an adequate one.

The award for economic loss is sustained with one exception. As stated above, plaintiff produced the plaintiff's W-2 statements and FICA earning statements from which his expert economist arrived at his projections. For the cost of replacement of the plaintiff's insurance policy, the economic report multiplied the plaintiff's earnings by 14% without any evidence of the contents of the insurance policy or the amount of premium the plaintiff paid. The evidence, therefore, was insufficient to make such a determination. Accordingly, the damages must be reduced by the product of that 14% calculation.

The portion of Prudential Securities' motion for judgment against Roland's Electric on its contractual and common law claims for indemnity is granted. The contract between Prudential, as owner, and Roland's provides that Roland's shall indemnify Prudential for all damages caused by Roland's negligence to the fullest extent allowed by law.

In view of Prudential's liability being entirely vicarious, and thus not in violation of General Obligations Law §5-322.1, the finding of negligence against Roland's triggers the indemnity provision of their contract requiring Roland's to fully reimburse Prudential for all its costs in defending this action, including attorney's fees (Rivera v Urban Health Plan, Inc., 9 AD3d 322, 781 NYS2d 316 [1st Dept 2004]); Abreu v Vardo Construction Corp., 204 AD2d 178, 611 NYS2d 201 [1st Dept 1994]).

Prudential is also entitled to common law indemnity. At common law a vicariously liable party who is liable only for the negligence of another, is entitled to indemnification from the negligent party (Mas v Two Bridges Association, 75 NY2d 680, 555 NYS2d 669 [1990]). However, there is no common law recovery for attorney's fees from Roland's. At common law in a third-party action, each party is responsible for its own attorney's fees, as the Court of Appeals is unwilling to modify the American Rule that each side is responsible [*7]for its own attorney's fees in a third-party action (Chapel v Mitchell, 84 NY2d 345, 618 NYS2d 626 [1994]).

Schmergel, the general contractor, defendant and third-party plaintiff, seeks indemnification against Roland's. Like the indemnity provisions contained in Prudential's contract, Roland's indemnifies Schmergel for all legal expenses to the fullest extent provided by law. For the same reasons that Roland's is liable to Prudential for contractual indemnification, Roland's is similarly liable to Schmergel for contractual indemnification.

Roland's also added Schmergel as an additional insured on its general liability policy. Having performed that function, Roland's would not be liable for failing to add Schmergel as an additional insured. As to common law indemnification, Roland's has the same responsibility to Schmergel as it has to Prudential, i.e., damages, excluding attorney's fees.

Ten Ten, the actual owner of the premises, moves for common law and contractual indemnification against Roland's, but Ten Ten brought a third-party action only against Prudential Securities. It asserted a cross-claim against Roland's, but it is not clear to this Court that a defendant in the main action can assert a cross-claim against a third-party defendant, where the cross-claimant is not a party in the third-party action. None of the parties addressed this issue. Accordingly, it is

ORDERED that this portion of Ten Ten's motion for contractual and common law indemnity is denied with leave to renew within twenty (20) days of the service of a copy of this decision. Ten Ten did, however, implead Prudential. The lease to the premises, contained a provision in the rider that Prudential (the named tenant in the lease) would add Ten Ten as an additional insured. Depending on whether this provision was satisfied, Ten Ten has an action against either Roland's if no such addition was made to the insurance policy or against the insurance company if such an addition was made to the insurance policy. Accordingly, it is

ORDERED that Ten Ten's motion against Prudential for failure to add it as an additional insurer is denied with leave to renew withing twenty (20) days of the service of this decision alleging that Ten Ten was not added as an additional defendant to Prudential's insurance policy.

Finally, the Court denies, with leave to renew within twenty (20) days of the service of a copy of this decision, the portions of the motions for a collateral source hearing. If we are to have a collateral source hearing, adequate notice must be given of the contours of the relief that the movants are seeking and the basis or information that caused a party to seek a collateral source hearing. There is also a request for a hearing pursuant to CPLR Article 50-B. After the collateral source hearing, if any, any of the parties may settle a proposed judgment in accordance with the provisions of Article 50-B.

The Court has considered the parties' remaining arguments and finds them to be without merit.

Dated: December 24, 2009Enter:

_______________________

Louis B. York, J.S.C. Footnotes

Footnote 1:USA Illumination was severed from this action.