Vargas v Advanced Fleet Maintenance, Inc.

Annotate this Case
[*1] Vargas v Advanced Fleet Maintenance, Inc. 2015 NY Slip Op 50656(U) Decided on May 5, 2015 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2015
Supreme Court, Kings County

Pedro Vargas, as Administrator of the Estate of IVAN HERNANDEZ-MORALES, deceased, and ALEXANDER IVAN HERNANDEZ, an infant by his Mother and natural guardian, VERONICA ORTEGA, Plaintiffs,

against

Advanced Fleet Maintenance, Inc., Defendants.



12520/08



Plaintiff:Paul Edelstein, Esq.

The Edelsteins, Faegenburg & Brown

NY NY

Defendants:

Kenneth S. Merber, Esq.

Gallo Vitucci & Klar, LLP

NY NY
Arthur M. Schack, J.

In this wrongful death action, decedent, IVAN HERNANDEZ-MORALES (IVAN), lost his life in a work-related accident on May 10, 2007 when he was pinned and crushed between the rear of a garbage truck and a dumptster in an alleyway. IVAN was survived by his fiancée, VERONICA ORTEGA (VERONICA), and their infant son, ALEXANDER IVAN HERNANDEZ (ALEX). Initially, there were six defendants - CROWN CONTAINER CO., INC., CROWN CONTAINER WASTE SERVICES CORP., CROWN TRANSFER STATION CO., INC. (collectively the "CROWN" defendants), ADVANCED FLEET MAINTENANCE, INC. (ADVANCED), ELECTRONIC CONTROLS COMPANY (ECCO) and ASHIM ALI (ALI). At trial, after jury selection and openings by the parties, on January 24, 2014, four defendants - the three CROWN defendants, owners of the garbage truck and employers of decedent IVAN, and ALI, the driver of the garbage truck on May 10, 2007, settled with plaintiffs in a stipulation on the record, for $1,550,000.00 and waiver of a workers' compensation lien. Additionally, the Court granted a directed verdict to defendant ECCO, dismissing it from the action. ADVANCED was the sole remaining defendant for the jury trial.

The unified jury trial continued until February 27, 2014, when the jury rendered its verdict, finding: defendant ADVANCED 49.5% liable; the CROWN defendants 49.5% liable; and, defendant ALI 1% liable. Damages awarded were: $168,000.00 for past lost earnings of decedent; $1,040,000.00 for decedent's future loss of earnings to be incurred for the next 16 years; $1,000,000.00 for decedent's pain and suffering endured between the moment he was going to be gravely injured or die and the moment he sustained a physical injury (referred to as "pre-impact terror"); $2,000,000.00 for decedent's pain and suffering from the moment of physical injury to the moment of death; $2,000,000.00 for monetary loss from the time of decedent's death to the date of the verdict; and, $1,000,000.00 for future monetary loss from the date of the verdict to be incurred into the future for the next 16 years. Thus, the damages awards against defendant ADVANCED were $3,467,960.00, which is 49.5% of the $7,208,000.00 total.

Defendant ADVANCED moves for an order: pursuant to CPLR Rule 4404 (a), to set aside the verdict and entry of judgment against defendant ADVANCED: or, in the alternative, pursuant to CPLR Rule 4404 (a), to set aside the verdict as against the weight of the evidence and order a new trial; or, in the alternative, pursuant to CPLR Rule 4404 (a), to set aside and vacate the jury's awards for decedent's fear of impending death, decedent's conscious pain and suffering and decedent's future lost earnings, as a matter of law, and to substantially reduce the jury's awards for past and future loss of parental guidance; to grant leave to defendant ADVANCED, pursuant to CPLR Rule 3025, CPLR Rule 4404 and General Obligations Law (GOL) § 15-108, to amend its answer to include and assert the affirmative defense of "setoff," as a result of plaintiffs' settlement with the CROWN defendants and ALI, during the trial; pursuant to CPLR § § 2201 and 5519, to stay entry of judgment against ADVANCED and/or plaintiffs executing upon any judgment against ADVANCED pending the determination of this motion and any appeals; pursuant to CPLR Article 50-B and § 4545 (a), set a hearing to structure a judgment and determine any setoffs; and, grant such other and further relief that the Court deems just and [*2]proper.

Plaintiffs oppose defendant ADVANCED's motion. For the reasons following, the Court finds that the jury's liability verdict and damage awards are not against the weight of the evidence and are not inconsistent.

Background

Decedent IVAN's accident occurred during his employment by settling defendant CROWN CONTAINER CO., INC. He was a helper on one of their private sanitation trucks. Immediately prior to the May 10, 2007 accident, CROWN sanitation truck driver ALI and decedent were loading cardboard, in an Astoria, Queens driveway, out of a dumpster into the back of a CROWN garbage truck. ALI pulled down the levers on the side of the garbage truck to "rev-up" the engine and to engage the vehicle's compactor, which is linked to the truck's transmission through a power takeoff (PTO) unit that transfers power from the truck's drive shaft to the hydraulically operated hopper, to compact the cardboard. However, ALI forgot to put the vehicle in neutral before leaving the truck's cab and the truck was still in reverse. Therefore, when he "revved up" the engine and attempted to engage the "hopper," the truck shot back, without the horn sounding and any lights flashing as a warning. The truck crushed decedent IVAN between the dumpster and the garbage truck.

Plaintiffs, at trial, presented evidence that ADVANCED last worked on the subject truck's transmission more than six months prior to decedent's accident, but failed to inform CROWN that the vehicle lacked a functioning neutral interlock/inhibitor device, which if properly operational, would have prevented the truck's PTO and compactor from operating when the vehicle was in reverse. ADVANCED's defense was that when it last serviced the subject truck it had a functioning neutral interlock/inhibitor device. If it failed to function at the time of the accident this was not ADVANCED's fault.

Failure to attach trial transcript to motion to set aside a jury verdict not

fatal

As an initial matter, plaintiffs note that ADVANCED failed to attach the trial transcript to the 100 page instant motion. In a footnote at page 16 of the motion, ADVANCED's counsel states that "[f]or the purposes of judicial economy, a full copy of the record has not been submitted with this motion, as it is ADVANCED FLEET's understanding that the Court is already in possession of the same," and counsel offered to provide a copy to the Court upon request. ADVANCED's understanding is incorrect. The Court never had a full copy of the record, but only portions of the trial transcript. Plaintiffs, in their opposition papers, argue that "ADVANCED's failure to attach the full transcript of proceedings of a seven-week trial with several hundred exhibits, on which it claims there were numerous errors by the Court, constitutes a defective post-trial motion ab initio and warrants outright denial."ADVANCED, in its reply, argues that unlike the requirement in the Appellate Division that an entire record must be provided to the Court (see Kruseck v Ross, 82 AD3d 939 [2d Dept 2011]), the same rules do not apply on motion to set aside a verdict, since I sat through the trial, heard all the testimony and saw all the evidence. Reluctantly, I agree with defendant ADVANCED. A copy of the entire trial transcript would have been helpful to the Court, but I am able to conduct a meaningful review with only portions of the trial transcript. The Court, in McPherson v City of New York (122 AD3d 809 [2d Dept 2014]), reversed a denial of plaintiff's CPLR Rule 4404 (a) motion to set aside a damages verdict for failure to attach a trial transcript to the motion, observing that [*3]while a trial transcript must be included with an appeal, it is not necessarily the case in Supreme Court. The McPherson Court held, at 810, that "[t]he Supreme Court improperly denied the . . . motion for failure to include a trial transcript . . . Accordingly, this was not a situation where the absence of a trial transcript precluded meaningful review."

Standard to set aside a jury verdict

With respect to setting aside a jury verdict as against the weight of the evidence and being inconsistent, the power of the Court to set aside a jury verdict and order a new trial is discretionary. It is codified in CPLR Rule 4404 (a), which states:



Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

This broad power is invoked only when the jury verdict is against the weight of the evidence. The Court, in Cohen v Hallmark Cards, Inc. (45 NY2d 493, 499 [1978]), instructed that, "the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors (see Mann v Hunt, 283 App Div 140 [3d Dept 1953])." The Appellate Division, Second Department, in applying the Cohen v Hallmark Cards, Inc. standard in Nicastro v Park (113 AD2d 129, 133-134 [2d Dept 1985]), held:



The fact that determination of a motion to set aside a verdict involves judicial discretion does not imply, however, that the trial court can freely interfere with any verdict that is unsatisfactory or with which it disagrees. A preeminent principle of jurisprudence in thisarea is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. Fact-finding is the province of the jury, not the trial court, and a courtmust act warily lest overzealous enforcement of its duty to oversee the proper administration of justice leads it to overstep its bounds and "unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury's duty" [citations omitted]. This is especially true if a verdict is contested solely on weight of the evidence grounds and interest of justice factors have not intervened to flavor the judicial response to the motion. Absent such complications, the challenge is directed squarely at the accuracy of the jury's fact-finding and must be viewed in that light. [Emphasis added]

(See Matter of State v Edison G., 107 AD3d 723, 724 [2d Dept 2013]; Felicia v Boro Crescent Corp., 105 AD3d 697, 698 [2d Dept 2013]; Caliendo v Ellington, 104 AD3d 635, 636-637 [2d Dept 2013]; Loprieto v Scotti, 101 AD3d 829, 829-830 [2d Dept 2012]; Daniels v Sims, 99 [*4]AD3d 658, 659 [2d Dept 2012]; Bergamo v Verizon N.Y, Inc., 95 AD3d 916, 917 [2d Dept 2012]).

Further, the Court is mindful of the admonition in Shaw v Board of Educ. of City of



New York (5 AD3d 468 [2d Dept 2004]), that a "jury verdict is entitled to great deference and should be set aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." (See Maharaj v LaRoche, 121 AD3d 953 [2d Dept 2014]; Schwartz v Nagori, 115 AD3d 733, 734 [2d Dept 2014]; Hatzis v Buchbinder, 112 AD3d 890 [2d Dept 2013]; Wallace v City of New York, 108 AD3d 760, 761 [2d Dept 2013]; Doran v McNulty, 107 AD3d 843, 844 [2d Dept 2013]; Soto v Elmback Owners, LLC, 106 AD3d 986 [2d Dept 2013]; Delva v New York City Transit Authority, 85 AD3d 712 [2d Dept 2011]). Moreover, "[i]t is well settled that a jury verdict should not be set aside where to do so interferes with the fact finding function of the jury (see Durante v Frishling, 81 AD2d 631 [2d Dept 1981])." (Bivona v Port Authority of New York and New Jersey, 118 AD2d 747, 748 [2d Dept 1986]).

In Hernandez v Carter and Parr Mobile, Inc. (224 AD2d 586, 587 [2d Dept



1996]), the Court instructed that "[i]t is beyond cavil that the determination of the jury which observed the witnesses and the evidence is entitled to great deference. We find that the jury's determination in favor of the defendant was based upon a fair interpretation of the evidence and we reject the plaintiffs' contention that the verdict is against the weight of the evidence." (See Wallace v City of New York, supra; Das v Costco Wholesale Corp., 98 AD3d 712, 712 [2d Dept 2012]; Gaudiello v City of New York, 80 AD3d 726 [2d Dept 2011]; Delva v New York City Transit Authority, supra).

The jury, during the trial, observed the witnesses, measured their credibility and weighed the evidence. Among the witnesses the jury heard were: defendant driver ALI; CROWN's head mechanic Jaroslaw Jakubowski; CROWN TRANSFER'S supervisor Moises Acevedo; CROWN's President Gerald Antonacci; ADVANCED's General Manager Michael Schuler; plaintiff's liability expert Bruce Gambardella; New York City Medical Examiner, Dr. Michael Greenberg; defendant's medical expert, Dr. Joseph La Mantia; Teamsters Union Local 813 official Jacqueline Bourgeios; and, plaintiffs' economist, Dr. Jeffrey Seidenberg. The Court finds that the jury had a rational basis for its liability verdict and damages awards, which were neither against the weight of the evidence nor inconsistent. The Court, in giving great deference to the determination of the jury, cannot find any reason to set aside the jury's verdict.

ADVANCED's claim that it owed no duty to decedent

ADVANCED argues that liability should be set aside because it owed no duty to decedent as a matter of law because it only had a contractual relationship with CROWN. It argues that at most it committed nothing more than a breach of its contractual obligation to decedent's employer CROWN for which it may not be liable in tort. ADVANCED cites



Eaves Brooks v Y.B.H. Realty Corp. (76 NY2d 220 [1990)]), in which the Court of Appeals instructed, at 226, "a contractual obligation, standing alone, will impose a duty

only in favor of the promisee and intended third-party beneficiaries and mere inaction, without more, establishes only a cause of action for breach of contract." Further, ADVANCED claims that pursuant to the Court of Appeals holding in Espinal v Melville Snow Contractors, Inc. (98 [*5]NY2d 136, 138 [2002]), "a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party," arguing that it had no duty to decedent, because none of the three "Espinal exceptions" in which a party is said to have assumed a duty of care to a non-contracting third party applies in the instant action. The Court, in Marchetti v Allstate Conveyor Serv., Inc. (67 AD3d 748, 749 [2d Dept 2009]), summarized the three Espinal exceptions in which a party could potentially be liable to a non-contracting third party: "(1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely."

ADVANCED, throughout the trial, made numerous motions for a mistrial, but never raised the Espinal doctrine as a reason for a mistrial. "We observe that, by failing to move for a mistrial on the grounds which he asserted in his posttrial motion the plaintiff waived his right to seek relief on those grounds pursuant to CPLR 4404 (a)."



(Matthews v Coca-Cola Bottling of New York, 188 AD2d 590, 591 [2d Dept 1992]). Moreover, ADVANCED had a duty, owed a duty and acknowledged its duty. Mr.

Schuler, ADVANCED's representative at the trial, conceded that it was the only entity with the know-how, expertise and ability to place a neutral interlock or inhibitor on the subject truck and would not have returned the truck to CROWN if the truck was unequipped with such a device. The evidence demonstrated that if the subject truck was equipped with such a device, the accident would not have happened. CROWN and its workers relied on ADVANCED's expertise and CROWN did not have the know-how to remove such a device or equip the truck with such a device. Further, Mr. Schuler admitted that ADVANCED supplanted CROWN with respect to issues concerning the transmission, including the neutral interlock/inhibitor and ADVANCED was aware that CROWN workers, such as decedent and ALI, would be working behind the truck and would rely that the truck had a functioning neutral interlock/inhibitor in place to prevent the type of accident that occurred. Mr. Schuler testified that when the subject truck left ADVANCED's facility on November 2, 2006, before the accident, the truck had a neutral interlock/inhibitor. However, after the accident occurred, ADVANCED's July 31, 2007-service ticket [plaintiff's exhibit No.23], shows that ADVANCED installed a neutral interlock/inhibitor switch on the truck. Four witnesses, Mr. Jakubowski, CROWN's mechanic, driver ALI, Mr. Acevedo, CROWN's supervisor and Mr. Antonacci, CROWN's President, testified that the truck at the time of the accident did not have a neutral interlock/inhibitor.

Thus, all three Espinal exceptions are met and applicable in the instant case. First, ADVANCED launched an instrumentality of harm. Second, CROWN workers detrimentally relied upon their belief that the truck had a neutral interlock/inhibitor switch which would prevent it from backing up. Third, ADVANCED displaced CROWN and stepped into CROWN's shoes by installing a neutral interlock/ inhibitor post-accident.

Moreover, the Court of Appeals instructed in Sommer v Federal Signal Corp. (79 NY2d 540, 551-552 [1992]), that:

A legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship. Professionals, common carriers and bailees, for example, may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties (Rich v New York Cent. & Hudson Riv. R.R. Co., 382, 390 [1882];Prosser, Selected Topics on the Law of Torts, ch VII, The Borderland of Tort and Contract [1953], at 402-405). In these instances, it is policy, not the parties' contract, that gives rise to a duty of due care (see, Prosser, Torts, at 613 [4th ed]).

Mr. Schuler's testimony demonstrated a decided breach of that due care. A failure to use reasonable care at any stage of the process would result in defective performance of the job and be a negligent effort in determining what was wrong and a breach of duty owed to a customer. (See Grooms v Davidson Chevrolet Oldsmobile Cadillac, 9 Misc 3d 318, 320 [Watertown City Court [2005]). ADVANCED had special knowledge to install the neutral interlock/inhibitor switch. It admitted it would not have permitted the subject truck to leave its premises unless it was installed. It was clear that the absence of the neutral interlock/inhibitor switch caused the accident. As per ADVANCED's request to charge, the jury unanimously answered Question # 1 "No" on the Verdict Sheet, "Was there a functioning neutral inhibit system on the G-5 truck [the subject truck] on November 3, 2006, when it left Advanced Fleet."

ADVANCED's claim that the verdict is against the weight of the evidence

and that the Court erred in failing to charge comparative negligence and superceding causes

ADVANCED argues that the verdict should be set aside and a new trial ordered because the jury's apportionment of fault is against the weight of the evidence, the Court erred in failing to charge comparative negligence by the decedent and that the negligence of CROWN and ALI were intervening and superceding causes of the accident. As noted above, the jury found: ADVANCED 49.5% at fault; CROWN 49.5% at fault; and, driver ALI 1% at fault. Decedent's job required him to stand at the rear of the truck to place refuse into the truck. ALI engaged the lever which triggered the PTO and the truck backed-up and crushed decedent. He testified that he thought he put the truck into neutral,



but he did not. ALI actually left the truck in reverse, and engaged the PTO. The truck then moved backwards and decedent could not get out of the way. ADVANCED

speculates that somehow decedent IVAN could be at fault, because he should have known

that the truck would surge backwards when the PTO was engaged, despite the fact that he

was in an alley with no means of escape. "Defendant's speculation that plaintiff may have been comparatively negligent does not raise a triable issue of fact (see Beamud v Gray, 45 AD3d 257 [1d Dept 2007])." (Contu v Domingo, 123 AD3d 410, 410 [2d Dept 2014]). "[D]efendant's unsupported speculation that the injured plaintiff was comparatively negligent was insufficient to raise a triable issue of fact." (Suliaman v Thomas, 54 AD3d 751, 752 [2d Dept 2008]). (See Garcia v Lenox Hill Florist III, Inc., 120 AD3d 1296 [2d Dept 2014]). The jury's apportionment of fault was well informed and not against the weight of the evidence. It will remain [*6]undisturbed.

The acts of CROWN and ALI did not constitute superceding and/or intervening causes. Mr. Schuler admitted that ADVANCED stepped in for CROWN to install an Allison Transmission and that if a functioning neutral/inhibitor system was on the subject truck the accident would not have happened. It cannot be said by any stretch of the imagination that CROWN's or ALI's failures were superceding and/or intervening causes. The question of foreseeability is within the province of the jury and the jury accepted plaintiff's theory of liability. No tortious act is actionable unless it is also the proximate cause of harm to the plaintiff. However, proximate cause has been long recognized as impossible to precisely define. The Court of Appeals, in Derdiarian v Felix Contr. Corp., (51 NY2d 308 [1980]), at 314-315, instructed:



The concept of proximate cause, or more appropriately legal

cause, has proven to be an elusive one, incapable of being precisely

defined to cover all situations (see, e.g., Pagan v Goldberger, 51

AD2d 508, 509 [2d Dept 1976] [Hopkins, Acting P. J.]; Prosser, Law

of Torts [4th ed], § 42, p 249; see, also, 1 Shearman & Redfield,

Negligence, § 35). This is, in part, because the concept stems from

policy considerations that serve to place manageable limits upon the

liability that flows from negligent conduct (e.g. Ventricelli v Kinney

System Rent A Car, 42 NY2d 950, 952 [1978]; Palsgraf v Long. Is. R.R.

Co., 248 NY 339, 352 [Andrews, J., dissenting]). Depending upon the

nature of the case, a variety of factors may be relevant in assessing legal

cause. Given the unique nature of the inquiry in each case, it is for the

finder of fact to determine legal cause, once the court has been satisfied

that a prima facie case has been established.

The "legal cause" issue becomes complex when the acts of third persons "intervene" between the negligent conduct of the defendant and ultimate injury to the plaintiff. Further, as explained in Derdiarian, at 315:



[w]here the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is

a normal or foreseeable consequence of the situation created by the

defendant's negligence . . . Because questions concerning what is foreseeable

and what is normal may be the subject of varying inferences, as is the

question of negligence itself, these issues generally are for the fact finder

to resolve.



In this trial, the jury determined that ADVANCED injected itself into the orbit of duty owed to decedent.

ADVANCED'S claims of Court error and bias

ADVANCED alleges that: the Court committed numerous errors and mistakes of



law, which cumulatively rose to the level of reversible error; the Court demonstrated bias against ADVANCED; and, the conduct of plaintiffs' counsel deprived ADVANCED of a fair trial.

ADVANCED specifically claims that the Court allowed the introduction of evidence of subsequent remedial repairs to the truck in the accident. The admission into evidence of ADVANCED's July 31, 2007-service ticket [plaintiff's exhibit #23], was not offered to show a subsequent remedial repair, but to demonstrate that ADVANCED installed a neutral interlock/inhibitor switch on the truck because it was not present on the



subject truck at the time of the accident. If ADVANCED knew that a neutral inhibitor was

necessary and that ADVANCED was also the entity with the know-how for making a

maintenance decision about the truck, then ADVANCED is tasked with control of the truck, as well as CROWN. This is supported by CROWN testimony that CROWN relied

upon ADVANCED and that ADVANCED had the requisite skill and know-how. The Court, in Del Veccio v Danielle Associates LLC (94 AD3d 941, 942 [2d Dept 2012]), instructed:

"Evidence of subsequent repairs and remedial measures is not discoverable

or admissible in a negligence case unless there is an issue of maintenance

or control" (Cleland v 60-02 Woodside Corp., 221 AD2d 307, 308 [2d

Dept 1995]; see Hughes v Cold Spring Constr. Co., 26 AD3d 858 [4d

Dept 2006]; Niemann v Luca, 214 AD2d 658 [2d Dept 1995]; Cacciolo v

Port Auth. Of NY & N.J., 186 AD2d 528, 530 [2d Dept 1992]; Klatz v

Armor Elevator Co., Inc., 93 AD3d 633, 637 [2d Dept 1983]).



Post-accident conduct is admissible when a plaintiff raises an issue of defendant's control and domain over the cause of an accident. (See Scudero v Campbell, 288 NY 328 [1942];

Hughes v Cold Spring Constr. Co., supra.). In this trial, plaintiffs offered the evidence of ADVANCED's post-accident conduct as proof of the absence of the neutral interlock/inhibitor switch on the subject truck at the time of the accident and that

ADVANCED had control of the truck for this particular purpose.

Further, ADVANCED presents a laundry list of 21 alleged errors by the Court, at pages 61-62 of the instant motion, without any citations to the record. In opposing the motion, plaintiff's counsel rightfully states, at page 42 of his affirmation in opposition, "[o]ne need look no further to point-out the absurdity of and gross attacks perpetrated by ADVANCED."

Moreover, ADVANCED's counsel alleges that the Court demonstrated bias against ADVANCED because the Court denied ADVANCED's motions in limine. Also, the Court is accused of allowing plaintiff's counsel to engage in misconduct. Plaintiff's counsel, in his opposition, correctly refers to this as "ADVANCED's paranoid, hyperbolic and unsubstantiated [*7]gross general allegations of Judge's and plaintiffs counsel's misconduct and trial errors." Suffice it to say, these numerous allegations are unfounded. The Court is left with the impression, expressed by William Sakesspeare more than 400 years ago in Hamlet, that "The lady doth protest too much, methinks."

ADVANCED's claim that the jury awards for decedents pre

impact terror and conscious pain and suffering should be set aside and dismissed as a matter of law

ADVANCED's counsel argues that there is no evidence to support the jury's$1,000,000 award for pre-impact terror, because decedent IVAN could not have been aware of his impending death in the short time it took for the sanitation truck to crush him. However, Dr. Greenberg, the New York City Medical Examiner who testified for plaintiffs, stated that prior to the arrival of the Emergency Medical Service (EMS) ambulance and its emergency medical technicians, decedent was conscious and able to experience stimuli. Therefore, if decedent did not lose immediate consciousness, a reasonable person will perceive his impending doom when faced with a garbage truck backing up into him. The evidence implies that decedent was aware of the danger and thus the inference. Pre-impact terror may be based upon circumstantial evidence. (Boston v Dunham, 274 AD2d 708, 711 [3d Dept 2000]). Moreover, in light of the short duration of time in which decedent sustained pre-impact terror, plaintiffs concede that a fair and reasonable reduction of the $1,000,000 award for pre-impact terror would be to $250,000.

With respect to ADVANCED's claim that plaintiff did not experience conscious pain and suffering and thus the jury's award of $2,000,000 for conscious pain and suffering should be set aside and vacated, the jury heard Dr. Greenberg's testimony that decedent was conscious for a period of time before falling prey to his injuries and succumbing to death. EMS records in evidence show that decedent's accident occurred at 7:49 P.M., EMS was summoned at 7:53 P.M., EMS arrived at 8:01 P.M., decedent arrived



at Mt. Sinai Hospital of Queens at 8:15 P.M. and was pronounced dead at 8:45 P.M. Dr.

Greenberg testified that decedent's injuries would not have killed him instantly and his

immediate injuries would not have rendered him unconscious. He opined that decedent was conscious and able to experience pain between the time of the accident and the arrival of EMS personnel, about 11 to 12 minutes later. Further, Dr. Greenberg testified that when decedent arrived at Mt. Sinai of Queens Hospital he was unconscious and had no ability to experience pain. Defendant ALI, the truck driver, testified in his deposition, read to the jury at trial, that before EMS arrived at the accident scene, he held decedent in his arms, spoke to him and observed his eyes looking at him and his arms moving.

The burden of establishing conscious pain and suffering can be satisfied by direct or circumstantial evidence. (Gonzalez v New York City Housing Authority, 77 NY2d 663, 670 [1991]). The jury's determination was not based upon speculation but supported by Dr. Greenberg's expert testimony and defendant ALI's deposition testimony. "[T]he resolution of issues regarding the credibility of both expert and lay witnesses and the accuracy of their [*8]testimony are matters peculiarly within the province of the jury." (Yellitz v Brooklyn Union Gas Company, 242 AD2d 270, 271 [2d Dept 1997]). It is well established that "determinations regarding the credibility of witnesses are for the jury, which had the opportunity to see and hear the witnesses, and its resolution of issues of credibility should be afforded great deference." (Raymond v Henry, 306, AD2d 336 [2d Dept 2003]). The jury, in the trial, heard conflicting expert opinion as to whether or not



decedent was conscious after the accident. "The jury's resolution of conflicting expert

testimony is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts." (Speciale v Achari, 29 AD3d 674, 675 [2d Dept 2006]). "Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion, and reject that of another expert." (Ross v Mandeville, 45 AD3d 755, 757 [2d Dept 2007]). Thus, clearly the jury's verdict was fairly and reasonably supported by the first-hand account of ALI and the testimony of Dr. Greenberg.

In Ramos v La Montana Moving & Storage Inc. (247 AD2d 333 [1d Dept 1998]), the decedent had 15 to 30 minutes of conscious pain and suffering for "excruciating crushing injuries." The jury awarded $3,000,000 for conscious pain and suffering. The trial court reduced the award to $250,000 and the Appellate Division increased it to $900,000. In Perez v St. Vincent's Hosp. and Med. Ctr. of New York (66 AD3d 663 [2d Dept 2009]), the jury awarded $1,500,000 for about 35 minutes of conscious pain and suffering, which the Appellate Division reduced to $900,000. In Maracallo v Board of Educ. of the City of New York, 21 AD3d 318 [1d Dept 2005], the Appellate Division set aside a stipulation reducing a $6,000,000 jury verdict for 6 to 7 minutes of pain and suffering, in a drowning accident, to $1,000,000 unless the defendant agreed to increase the stipulated verdict to $1,250,000. Thus, plaintiffs' counsel concedes that a more appropriate award for conscious pain and suffering would be $1,500,000.

Defendant ADVANCED's counsel claims that the award for pre-impact terror is duplicative of the award for pain and suffering and should at the very least be vacated, arguing that emotional distress is a component of pain and suffering. This is incorrect. New York law recognizes a separate claim for pre-impact terror from conscious pain and suffering in wrongful death actions. (Malacynski v McDonnell Douglas Corp., 565 F Supp 105, 106 [SDNY 1983]). Thus, the jury, in weighing the evidence, was able to differentiate between pre-impact terror and pain and suffering resulting from the impact of the accident.

ADVANCED's claim that plaintiffs did not proffer sufficient evidence to

prove their claims for decedent's past or future loss of earnings

ADVANCED claims that plaintiffs' proof for past or future loss of earnings is

woefully inadequate. "The plaintiffs had the burden of establishing damages for past and future lost earnings with reasonable certainty, such as by submitting tax returns or other relevant documentation." (Karwacki v Astoria Medical Anesthesia Associates, P.C., 23 AD3d 438, 439 [2d Dept 2005]). ADVANCED alleges that plaintiffs failed to produce any non-fraudulent pre-accident employment records, CROWN's owners created records post-accident that are inaccurate and the jury awards of $168,000 for past lost earnings and $1,040,000 for future lost earnings should be dismissed.

ADVANCED's counsel loses sight that the allegations that decedent was paid off the [*9]books or that his pay stubs were fraudulently signed, after his death, does not change



the fact that decedent was a worker for CROWN and was paid for his work. Workers

Compensation records, admitted into evidence, show decedent was paid $400 per week.

This is relevant documentation to establish a lost wages claim "with reasonable certainty." (Morgan v Roselli, 23 AD3d 356, 357 [2d Dept 2005]). Further, Gerald Antonacci, one of the owners of CROWN, testified that decedent started to work for CROWN about six months prior to the accident and was paid $600 per week in cash. The "W-4 Employee's Withholding Allowance Certificate" and "Employers Statement of Wage Earnings" created by CROWN for decedent, post accident, shows pay of $825 per week, which was the pay for new garbage truck helpers, pursuant to the collective bargaining agreement, which was in evidence, between CROWN and Teamsters Union Local 813.

Plaintiffs' expert economist, Mr. Seidenberg, opined using the $600 per week number, based upon the deposition testimony of VERONICA, decedent's fiancée and mother of his son, ALEX, that past lost wages from the date of decedent's death to the date of the verdict on a straight line basis would be $218,400 ($600 per week x 52 weeks x 7 years). This is a higher figure than the $168,000 awarded by the jury. Mr. Seidenberg opined that decedent's work life expectancy would be until age 65 in 2051 and his earnings would be $3,331,837, even if decedent always remained as a garbage truck helper. The jury returned a verdict for $1,040,000 for future lost wages for 16 years. It is well-settled that " [r]ecovery for lost earning capacity is not limited to a plaintiff's actual earnings before the accident, however, and the assessment of damages may instead be based upon future probabilities' (Kirschhoffer v Van Dyke, 173 AD2d 7, 10 [3d Dept 1991])." (Huff v Rodriguez, 45 AD3d 1440, 1443 [4d Dept 2007]). Since decedent worked for CROWN, was paid by CROWN, could expect to receive Union wages from CROWN, expect promotions and anticipated raises and benefits, the $1,040,000 jury award for future lost earnings, which was less that what was projected by plaintiffs' economist, was reasonable under the circumstances. The trial transcript shows that ADVANCED's counsel did not object to Mr. Seidenberg's opinions. Thus, the jury awards for past and future loss of earnings were established with reasonable certainty. The jury awards were based upon the evidence submitted, both documentary and testimonial, and the probabilities based upon the uncontradicted expert opinion which reasonably informed the jury about loss of earnings. Therefore, the jury awards of $168,000 for past lost earnings and $1,040,000 for future lost earnings shall remain undisturbed.

ADVANCED's claim that if the jury awards are not vacated, each and

every element of damages awarded by the jury warrants a significant reduction

"It is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury." (Rodriguez v City of New York, 191 AD2d 420, 421 [2d Dept 1993]). Further, the Court in Turuseta v Wyassup-Laurel Glen Corp. (91 AD3d 632, 634-635 [2d Dept 2012]), held:

The standard for reviewing the inadequacy or excessiveness of a jury

award is whether it "deviates materially from what would be reasonable

compensation" (CPLR 5501 [c]). Since the inherently subjective nature

of noneconomic awards cannot produce mathematically precise results,

the "reasonableness" of compensation must be measured against the

relevant precedent of comparable cases (see Donlon v City of New York,

284 AD2d 13, 15-16 [1d Dept 2001]).



However, ADVANCED claims that all the jury awards are grossly excessive and if not vacated, must be substantially reduced. In determining if the various awards should be reduced, the Court must follow the holding of Nicastro v Park at 133-134, as quoted above, that:

in the absence of indications that substantial justice has not been done,

a successful litigant is entitled to the benefits of a favorable jury verdict.

Fact-finding is the province of the jury, not the trial court, and a court

must act warily lest overzealous enforcement of its duty to oversee the

proper administration of justice leads it to overstep its bounds and

"unnecessarily interfere with the fact-finding function of the jury to a

degree that amounts to a usurpation of the jury's duty" [citations

omitted] . . . the challenge is directed squarely at the accuracy of the jury's



fact-finding and must be viewed in that light. [Emphasis added]

Applying the foregoing standard to the facts of this case, it is obvious that the jury's verdict was fairly and reasonably supported by the evidence and must be appropriately upheld by the Court. The fact that conclusions different from those fairly reached by the jury may be drawn, does not warrant reducing the awards, because the credibility of witnesses, the truthfulness and accuracy of their testimony, and the weight accorded to this are all issues for the jury, the trier of fact, and not the Court.

ADVANCED's claim that if should have been permitted to amend its

pleadings



to assert GOL § 15-108 as an affirmative defense after CROWN and ALI settled

The CROWN defendants and ALI settled with plaintiffs on January 24, 2014, after jury selection and just prior to openings, for $1,500,000. Plaintiffs' counsel stated on the record, at trial transcript [TT], page 24, lines 3 - 9, "that one of the decisions to settle on behalf of the plaintiff is based on the procedural posture of the case, that being to dismiss against all of these four main defendants, extinguish the cross-claims and proceed solely against the remaining defendant, Advanced." At TT, page 31, ADVANCED's counsel did not object to the settlement. Counsel for plaintiffs reiterated, at TT, pages 35 - 36, that plaintiffs settled with the CROWN defendants and ALI because ADVANCED's pleadings never asserted the affirmative defense of the setoff provision of GOL § 15-108.

ADVANCED's counsel then moved to amend its pleadings to assert the affirmative defense of GOL § 15-108 setoff. The Court denied the amendment of the pleadings because it would have prejudiced plaintiffs. The Court, in De Laurentis v Nager (302



AD2d 486 [2d Dept 2003]), instructed, "the decision to grant or deny leave to amend is

committed to the discretion of the Supreme Court (see Mayers v D'Agostino, 58 NY2d 696

[1982])."

In Oakes v Patel (87 AD3d 816, 818 [4d Dept 2011]), the Court, held, "we conclude that the Court properly denied that part of Kaleida's motion for leave to amend its answer to the amended complaint to include an affirmative defense of release and an affirmative defense [*10]pursuant to General Obligations Law § 15-108." Subsequent to this, the Court of Appeals, in Oakes v Patel (20 NY3d 633, 646-647 [2013]), affirmed that portion of the Fourth Departments affirmance of the trial court's denial of defendant's motion for leave to amend its pleadings to assert the affirmative defense of GOL § 15-108, stating:

it is also reasonable to infer that plaintiffs' approach to settlement would

have been altered if a defense of release had been in the case before the

first trial. A claim that is subject to a release defense obviously has a

lower settlement value than one that is not. The decision whether to

grant the belated amendment of its answer that Kaleida sought was within

the discretion of the trial court (e.g.Whalen v Kawasaki Motors Corp.,

NY2d 288, 293 [1998]). That discretion was not abused here.

CPLR Rule 3025 (b) specifically authorizes the Court to grant permission for



amendment of an answer "at any time," "provided that the late amendment does not

prejudice the other party . . . Prejudice may be found where a party has incurred some

change or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment." (Whalen v Kawasaki at 293). GOL § 15-108 provides that a settlement or release by one tortfeasor does not release other tortfeasors of liability. However, it decreases the amount that a plaintiff may recover from the non-settling tortfeasor by the greatest of: (1) the amount stipulated as consideration for the release; (2) the amount actually paid for the release; or, (3) the settling tortfeasor's equitable share of plaintiff's damages.

In the instant action, plaintiffs' settlement with the CROWN defendants and defendant ALI was based primarily on the procedural posture and pleadings on the morning of January 24, 2014, given that the offset provisions of GOL § 15-108 were not pled by the remaining defendant, ADVANCED. As such, plaintiffs were not prejudiced at that time. However, if ADVANCED had pled GOL § 15-108, then plaintiffs would have been subject to offset by entering into the settlement with the CROWN defendants and ALI. If ADVANCED would have been permitted to amend its pleadings to assert the affirmative defense of GOL § 15-108, plaintiffs could have been subject to significant and irreparable prejudice. For seven years of litigation, prior to January 24, 2014, ADVANCED never raised GOL § 15-108 as an affirmative defense. Therefore, the Court



did not allow ADVANCED to prejudice plaintiffs' substantive rights by the simple

expedient of suddenly allowing ADVANCED to assert the affirmative defense of offset.

Conclusion

Accordingly, it is

ORDERED, the motion of defendant ADVANCED FLEET MAINTENANCE, INC.: pursuant to CPLR Rule 4404 (a),to set aside the verdict and entry of judgment against defendant ADVANCED: or, in the alternative, pursuant to CPLR Rule 4404 (a), to set aside the verdict as against the weight of the evidence and order a new trial; or, in the alternative, pursuant to CPLR Rule 4404 (a), to set aside and vacate the jury's awards for decedent's fear of impending death, decedent's conscious pain and suffering and decedent's future lost earnings, as a matter of law, and to substantially reduce the jury's awards for past and future loss of parental guidance; to grant leave to defendant ADVANCED, pursuant to CPLR Rule 3025, CPLR Rule 4404 and General Obligations Law (GOL) § 15-108, to amend its answer to include and assert the affirmative defense of "setoff," as a result of plaintiffs' settlement with the CROWN defendants and ALI, during the trial; pursuant to CPLR § § 2201 and 5519, to stay entry of judgment against ADVANCED and/or plaintiffs executing upon any judgment against ADVANCED



pending the determination of this motion and any appeals; pursuant to CPLR Article 50-B

and § 4545 (a), set a hearing to structure a judgment and determine any setoffs; and, grant such other and further relief that the Court deems just and proper; is denied in its entirety.

This constitutes the Decision and Order of the Court.

ENTER



___________________________

HON. ARTHUR M. SCHACKJ. S. C.