Gorman v New York City Dept. of Transp.

[*1] Gorman v New York City Dept. of Transp. 2016 NY Slip Op 51251(U) Decided on August 26, 2016 Supreme Court, Richmond County Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 26, 2016
Supreme Court, Richmond County

Ronald Gorman, Plaintiff,

against

New York City Department of Transportation and CONTI OF NEW YORK, LLC, Defendants. NEW YORK CITY DEPARTMENT OF TRANSPORTATION and CONTI OF NEW YORK, LLC, Third-Party Plaintiffs, NORTHEAST STRUCTURAL STEEL, INC., Third-Party Defendant.



150326/13



Attorneys for plaintiff Ronald Gorman

Sacks & Sacks, LLP

By: David H. Mayer, James J. McCrorie, Scott N. Singer

Law Offices of Joseph P. Carfora

By: Joseph P. Carfora

Attorneys for defendant and third-party plaintiff Conti of New York, LLC

Nicoletti, Gonson, Spinner, LLP

By: Joseph J. Gulino, Benjamin N. Gonson

Attorneys for third-party defendant Northeast Structural Steel, Inc.

Fabiani Cohen & Hall, LLP

By: John V. Fabiani, Jr.
Alan C. Marin, J.

Conti of New York, LLC moves here under CPLR 4404 (a) following the jury's verdict in Ronald Gorman's lawsuit for his accident on a construction project at the Staten Island ferry terminal complex on the Richmond County side. Mr. Gorman, an ironworker, was struck on the back of the head by a 200-pound piece of concrete. Conti of New York was the general contractor for the project and Northeast Structural Steel, the subcontractor that employed plaintiff.

Gorman brought causes of action under sections 200, 240 (1) and 241 (6) of the Labor Law. At the close of his case, plaintiff discontinued his claims against the New York City Department of Transportation (DOT). After the parties had rested, the Court dismissed the action based on section 240.

With respect to Conti, the jury determined that it had violated section 200, as well as rules 23-1.7 and 23-3.3 of the Labor Commissioner and found causation for each violation. The jury absolved third-party defendant Northeast Structural Steel, Inc. of any fault.[FN1]

* * *

The project was one to reconstruct or rehabilitate the multiple ramps of the ferry terminal used by buses and cars dropping or picking up, as well as pedestrians and bicyclists going on or off the ferry. Conti hired dozens of subcontractors, including Northeast Structural Steel, but under its contract with DOT, performed more than half of the work of the project.

In May of 2010, ground was broken for the project. The bus ramps totaled 250,000 square feet of "bridge deck." The elevated concrete roadbeds were replaced with new concrete roadbeds. The road beds were supported by 50- or 60-year old steel superstructures, requiring that the steel be cleaned and any deteriorating steel replaced and retrofitted with additional pieces and structural bolts.

On the morning of September 20, 2012, Mr. Gorman and fellow journeyman ironworker William Fehling were to work on bus ramp C, repairing a steel I-beam. A demolition company, North American Site Developer, Inc. had removed over 99 percent of the original concrete from the bus ramps. While there was some dispute as to what can be classified as demolition, a Conti [*2]employee, Dan Cerza, was engaged in "incidental" demolition, chipping off some rough edges of concrete.

Gorman and Fehling took a scissors-lift up 25 or 30 feet to the work site, which was on a suspending decking system held by cables, known as the Q-deck, about six feet below the concrete. But they were told by Mr. Cerza, who was chipping above them to hold off: it wasn't safe for workers below. The two ironworkers went back down. When Cerza was finished chipping concrete after 15 or 20 minutes, he gave Gorman and Fehling the all-clear. Cerza then began clipping wire, known as "9-wire" or "K-wire," that was protruding from the concrete.

While Gorman (sitting on an overturned bucket), began drilling in the steel beam, Fehling returned to pick up an item he had forgotten. After about five minutes, Cerza had cut a few pieces of wire, and Fehling was back up on the work site, testifying that he then saw plaintiff get struck by a block of concrete. The concrete block had become dislodged. With dimensions of approximately two feet by one foot by eight inches, it was not the kind of fragment created by Cerza's chipping.

Sections 241 (6) and 200

At issue under section 241 (6) of the Labor Law were subdivision (a)(1) of Rule 23-1.7 and subdivision (c) of 23-3.3. The following was read to the jury in the Court's charge:

"Plaintiff Ronald Gorman claims that two rules of the [Commissioner] were violated: Rule 23-1.7 on overhead protection; and Rule 23-3.3 on inspections of demolition performed by hand-held tools.

The provision of Rule 23-1.7 reads:

Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick, full size, tightly laid three-quarter inch exterior grade plywood, or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

The provision of Rule 23-3.3 reads:

During hand demolition operation, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."[FN2]

Note the first sentence of 23-1.7 (a) (1) to the effect that it applies to places that are

"normally exposed" to falling material from above. See Marin v AP-Amsterdam 1661 Park LLC, [*3]60 AD3d 824 (2d Dept 2009).

Section 3.3 (c) involves, in relevant part, inspections "as the work progresses to detect any hazards . . . resulting from . . . loosened material." The Court of Appeals has ruled in a summary judgment motion on Rule 23-3.3 (c) that the moving defendants had to show either that they had complied with the provision or that their noncompliance did not cause plaintiff's accident (Wilinski v 334 E. 92nd Hous., 18 NY3d 1 [2011]).

Section 3.3(c) does not apply if the "hazard arose from the injured plaintiff's actual performance of the demolition work itself, rather than from structural instability caused by the progress of the demolition . . ." (Garcia v Market Assoc., 123 AD3d 661, 663 (2d Dept [2014]). For a worker to recover under 23-3.3 (c), the accident had to have been caused by structural instability that could have been "noticed and addressed by further inspections" (Bolster v Eastern Bldg. & Restoration, Inc., 96 AD3d 1123, 1125 [3d Dept 2012]).

The jury also had to determine whether Conti violated the common law duty to provide a safe work site, a duty which is codified by section 200 of the Labor Law. The test is whether the defendant created a dangerous condition, or if not, was there actual or constructive notice, with constructive notice meaning that a condition or defect "is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected . . . " (Niewojt v Nikko Const. Corp., 139 AD3d 1024, 1025 [2d Dept 2016]).

Extraneous References

It is unnecessary for the Court to reach the issue as to whether the evidence offers sufficient support for a trier of fact to determine compliance with Rule 23-1.7, Rule 23-3.3 and Labor Law § 200 along with the corresponding causative links (Cohen v Hallmark Cards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129 [2d Dept 1985]). The jury's fair consideration of these three provisions was significantly tainted by references (whether directly by counsel or otherwise) to other lawsuits that may have arisen on the project.

Plaintiff's counsel called Gregory Kerrigan, a construction engineer employed by Conti, as his first witness in the liability portion of the trial:

"Q. Sir, you gave a deposition back in October 24th, 2014, right?A. Correct.Q. Now, you were represented by an attorney, correct?A. At the time, I assume so, yeah.Q. You don't know if you were represented by an attorney?[The Court gave the jury an instruction on the use of depositions]Q. Do you recall whether or not you were represented by an attorney back then?

A. I gave several depositions for incidents on this project. I do not recall this specific deposition. You need to - -.

Q. Any of the ones you recall, were you always represented by an attorney?

A. There was sometimes one attorney, sometime five. I assume one of them was from our insurance company. I can't say with absolute certainty . It would vary from deposition to deposition how many folks were there.

Q. Sir, this is not [a] game of semantics.A. I'm not trying to play semantics.Q. Let's try to answer the question clearly.A. Okay.Q. You know that you were represented by an attorney at these depositions, true?A. Sir, I know that my insurance company may have had.

THE COURT: Let's move on. [The Court repeated a part of the deposition instruction].

Q. Did you meet an attorney before you went to this deposition?

A. Again, I do not recall this deposition separate from the other depositions. As I was trying to explain, sometimes it would be subcontractor insurance company attorneys. I assume that they were there representing me, although they weren't affiliated with me or my insurance company. I don't know exactly how indemnification works. I know - -"

THE COURT: Counsel, why don't we move on."[FN3]

The next day at trial, plaintiff questioned Anthony DeBenedictis, a civil engineer and project manager at Conti, who in September of 2012 was a project engineer on the ferry terminal job:

"Q. By the way, Mr. Kerrigan testified that he - - when I asked him whether he was represented by an attorney, he said that he's been to so many depositions, he doesn't remember. Have you been to a depositions [sic] in regard to this job site?

A. Yes.

Q. So would you agree that there were - - there are many lawsuits arising out of this job site?

MR. GULINO: Objection.THE COURT: Don't go there. Don't go there.MR. CARFORA: Withdrawn.THE COURT: Ignore the question, members of the jury."

A bench conference is held off the record, and counsel for plaintiff's first question after it was: Q. Have you been to other depositions involving incidents at this job site?

THE COURT: No. You could only ask if he's been to a deposition on this particular case, on this lawsuit."

These inappropriate references were prominent and striking. Among other things, they were unmoored from any showing of prior accidents similar in nature to Mr. Gorman's caused by the same or similar contributing factors (Gjonaj v Otis El. Co., 38 AD3d 384 [1st Dept 2007]). In fact, plaintiff offered no prior complaints of any conditions that could arguably be viewed as comparable, no prior comparable accidents; nor a likelihood thereof (via any witness, fact or [*4]expert).[FN4]

Such was unduly prejudicial when coupled with what, as set forth above, the jury had to decide under Labor Law sections 241 (6) and 200. Accordingly, in the interest of justice, pursuant to CPLR 4404 (a),[FN5] IT IS ORDERED that so much of defendant Conti's motion which is to set aside the jury's verdict on liability and direct a new trial thereon is granted.

DAMAGES

That the verdict on liability is set aside does not affect the viability of the damages phase of the trial, during which the jury heard from 12 witnesses (Olshantesky v New York City Tr. Auth., 105 AD3d 600 [1st Dept 2013]).

The jury itemized these amounts in their award of damages:

Past medical expenses:$161,000

Future medical expenses:$808,414 (over 32 years)Past lost earnings:$493,301

Future lost earnings:$3,354,400 (over 14 years)

Past pain & suffering:$1,750,000

Future pain & suffering:$3,250,000 (over 32 years)

Mr. Gorman was wearing a hard hat, but required stitches to his head on the day of the accident. Subsequently, plaintiff had a cervical fusion eight months later (May 23, 2013), a lumbar fusion on May 21, 2015, as well as arthroscopic surgery for his left shoulder on October 10, 2013.

On the date of the accident, Gorman was 43 years old, and as an ironworker, was employed in a physically demanding job. Defendant contends that plaintiff's procedures and complaints following September 20, 2012 were attributable wholly, or in part, to pre-existing conditions.

The jury was entitled to credit the testimony of orthopedic surgeons Andrew Merola and Steven Toulipoulos that Gorman's subject medical issues were caused by the accident at the ferry terminal.[FN6] The jury was instructed on this. The following language was distributed to and discussed with the lawyers, read to the jury as part of PJI 2:285 when the jury heard the Court's [*5]entire charge and then read again when the jury requested it:[FN7]

"Mr. Gorman will be entitled to recover the amount of reasonable expenses for physician & hospital services, medicine & injections, diagnostic testing, and medical equipment. Thus, you will include in your verdict the amount that you find from the evidence to be the fair and reasonable amount of the medical expenses necessarily incurred as a result Mr. Gorman's injuries caused by the September, 2012 accident.

The parties differ on whether such expenses were necessarily incurred as a result of that accident, but they do agree that the amount spent on such items from September 20, 2012 up until today was $161,000."

That the jury came back with $161,000 demonstrates they directly linked his subsequent procedures and treatment to the September 20, 2012 accident.[FN8] Analogously, the future amount of medical expenses found by the jury is sustained, $808,414 over a 32-year period. Thirty-two years was Gorman's life expectancy presented by plaintiff's expert economist based on a different source than the table in the PJI that the Court utilized with the 2:281 charge, which yielded a future life span of 30 years.

On lost earnings, defendant contends that 14 years of work into the future as an ironworker would take Gorman to age 61, when union statistics showed only a small percentage of ironworkers working past age 60. Conti also objected to the period of time used in determining the annual number of hours that Gorman would be expected to work in the future. Thirdly, defendant argued that any amount should be reduced by the projected earnings from a less strenuous, albeit lower paying, job that plaintiff could do.

On these factors that enter into the calculation of lost future earnings, the jury could credit the testimony of plaintiff's expert economist, Dr. Ronald Missun. Moreover, as for working another 14 years (and a full number of hours during the year), the jury heard Gorman's enthusiasm for, and pride in, his work :

"Q. Is every Local 40 ironworker a connector?

A. No. . . You have to be a little braver than most we say. You have to be extremely strong and agile . . . We walk along the beams no matter how high they are . . . It's not made for everyone . . . there's only two connectors on every job unless the building is as large as Tower One of the Freedom Tower. But that had only four connectors on it. So it's a very small percentage of us that do it and it was the place that I loved working every day.

You know, most people get up and they don't want to go to work. I liked going to work."

Pain and Suffering

Plaintiff's Affirmation in Opposition describes the effects of the September 20, 2012 accident - - up until trial and thereafter. The Affirmation relies upon a number of cases, [*6]including Halsey v New York City Tr. Auth., 114 AD3d 726 (2d Dept 2014) and Kihl v Pfeffer, 47 AD3d 154 (2d Dept 2007) to support the jury's award for pain and suffering, particularly its award of $3,250,000 for the future.

Halsey had upheld a $3,000,000 award for future pain and suffering. However, Ms. Halsey had a life expectancy of 54 years - - two-thirds greater than Ronald Gorman's, and the diminution in her activities of daily living was more explicitly specified. Any award for past pain and suffering was not challenged on appeal in Halsey, and we have no dollar figure for it.

In Kihl, the appellate court affirmed the jury's award of $1,200,000 for future pain and suffering and $625,000 for past pain and suffering (covering a period of nearly ten years). Ms. Kihl's life expectancy was 46 years, she was expected to have 9 or 10 future surgeries to replace her morphine pump, and had lost the ability to have any more children.

Referenced above were Ronald Gorman's shoulder arthoscopy and spinal fusions that he underwent after his accident. Plaintiff has hardware in his back and neck that by all accounts is permanent. Dr. Merola agreed with Dr. Barry Root, plaintiff's expert in physiatry and rehabilitative medicine, that Gorman will need another neck surgery in 13 to15 years, counting from the 2013 surgery thereon.

Plaintiff testified that, "I have headaches every day. I have good days and bad days, but the headaches I get are debilitating . . . you need to go lay down . . . " Mr. Gorman said that he has difficulty sleeping because he cannot get comfortable. As for pain, he testified that "it's never gone totally."

There was little direct reference to activities of daily living before and after September 20, 2012; compare with Halsey. In the context of his testimony about possible future employment, Dr. Merola testified that he would recommend that Mr. Gorman avoid repetitive neck and head motions, and be limited to lifting nothing heavier than 10 pounds.

In view of the evidence, the Court finds that the jury's award for pain and suffering exceeded what would be reasonable compensation. Such would be $600,000 for past pain and suffering and $1,800,000 for future pain and suffering over 32 years. The other amounts awarded by the jury stand - - for medical expenses and lost earnings, past and future.

In view of the foregoing, IT IS ORDERED that the award for the pain and suffering portion of the damages verdict be severed,[FN9] and there be a new trial on Ronald Gorman's damages with respect to pain and suffering, unless within 45 days after service upon it of a copy of this Order, plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Richmond County, a written stipulation consenting to an award of damages for past pain and suffering in the principal sum of six hundred thousand dollars ($600,000) and future pain and suffering in the principal sum of one million, eight hundred thousand dollars ($1,800,000) and to the entry of such judgment reflecting same.

ENTERAugust 26, 2016

________________________________

Alan C. MarinJ.S.C. Footnotes

Footnote 1:Without an application therefor, the caption was not formally amended; the original caption is reflected in the motion papers and in this Order (with the names of all counsels remaining). References herein will be to "defendant" in the singular, meaning Conti of New York, LLC. The following papers were submitted to the Court: From defendant Conti of New York, LLC - - a Notice of Motion, an Affirmation in Support (with exhibit 1) and a Reply Affirmation in Support. From plaintiff Ronald Gorman, an Affirmation in Opposition (with exhibits 1 through 4).

Footnote 2:What is set forth above differs from the reporter's transcription as follows: 1) the record has "23/1.7" and "23/3.3"; the Order uses the customary designation of "23-1.7" and 23-3.3"; 2) in Rule 23-3.3, the record has "weekend" for "weakened" and "affected" for "effective."

Footnote 3:Following testimony by Mr. Kerrigan about safety meetings, plaintiff's counsel made another effort to ask about the entire project: "Q. I didn't ask you that. I asked you about safety complaints. Are you telling this jury that in three years there was never a safety complaint on this job site? MR. GULINO: Objection. Beyond the scope. The complaint was about chipping and cutting and concrete falling. THE COURT: Counsel, you have to narrow it down. MR. CARFORA: If we're limiting to that, Judge, I withdraw my question. I thought he meant all complaints . . . Q. You indicated an outside complaint . . ."

Footnote 4:Mr. Kerrigan answered "No" when asked, "And did anybody ever come to anyone from Conti as far as you know ever complaining about the cutting of K9 - - K wire and the falling of concrete?" Similarly, Mr. DeBenedictis testified that in the work on the terminal project up until plaintiff's accident, he knew of no incident where a worker was sniping K-wire and part of a structure came down.

Footnote 5:On the trial court's authority under Rule 4404 (a), see generally, Rodriguez v City of New York, 67 AD3d 884, 885-6 (2d Dept 2009).

Footnote 6:Orthopedist Merola specializes in the spine, and Dr. Toulipoulos, the extremities.

Footnote 7:The second note from the jury in the damages part of the trial, which became court exhibit 5, read: "The jury would like the exact amount that constitutes past medical expenses.' " (The first jury note requested all the exhibits).

Footnote 8:Dr. Merola did testify that Gorman had some "preexisting issues . . . in his neck or back," but they were asymptomatic; Merola concluded that the subsequent surgeries and other difficulties were caused or aggravated by the accident of September 20, 2012. The jury was given PJI 2:282 on the aggravation of a pre-existing condition.

Footnote 9:See Oakes v Patel, 20 NY3d 633, 649 (2013).