Hrychorczuk v 1677 43rd St LLC
Annotate this Case
Download PDF
Hrychorczuk v 1677 43rd St LLC 2023 NY Slip Op 31595(U) May 10, 2023 Supreme Court, Kings County Docket Number: Index No. 502912/17 Judge: Wayne Saitta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 05/10/2023 03:23 PM NYSCEF DOC. NO. 702 INDEX NO. 502912/2017 RECEIVED NYSCEF: 05/10/2023 Part 29 of At an IAS lAS Term, Term, Part of the the Supreme Supreme Court Court of the New York, held in and the the State State of of New York, held and for the County Kings, at the Courthouse, County of Kings, at the Courthouse, at Civic Center, Brooklyn, New New York, York, on Center, Brooklyn, on the the 10th 10th day day of May 2023. May 2023. NEW YORK SUPREME COURT OF THE SUPREME COURT THE STATE OF NEW COUNTY OF KINGS KINGS ---------------------------------------------------------------------X ---------------------------------------------------------------------J{ DARIUSZ DARIUSZ HRYCHORCZUK, HRYCHORCZUK, Plaintiff, Plaintiff, Index No: 502912/17 502912/17 Index -against-againstDECISION DECISION and and ORDER ORDER 1677 43RD 43RD ST LLC and and BBM CONSTRUCTION CONSTRUCTION CORP., Defendants. Defendants. ------------------------------------------------------------X ------------------------------------------------------------J{ 677 43RD 43RD ST LLC, Third-Party Plaintiff, Plaintiff, Third-Party -against-againstBBM CONSTRUCTION CONSTRUCTION CORP., CORP., Third-Party Defendant. Third-Party Defendant. ------------------------------------------------------------X ------------------------------------------------------------J{ CONSTRUCTION CORP., CORP., BBM CONSTRUCTION Second Third-Party Third-Party Plaintiff, Second Plaintiff, -against-againstGILMAR DESIGN DESIGN CORPORATION, CORPORATION, GILMAR Second Third-Party Third-Party Defendant. Second Defendant. ------------------------------------------------------------J{ ------------------------------------------------------------X 1677 43RD 43RD ST LLC, Third Third Third-Party Third-Party Plaintiff, Plaintiff, -against-againstGILMAR DESIGN DESIGN CORPORATION, CORPORATION, GILMAR Third Third-Party Third-Party Defendant. Defendant. Third -----------------------·-------------------------X ------------------------------------------------------------J{ 1 of 7 MS #17 FILED: I KINGS COUNTY CLERK 05/10/2023 03:23 PM Ii DOC. NO. 702 NYSCEF INDEX NO. 502912/2017 RECEIVED NYSCEF: 05/10/2023 II II Ii II I'J !I;1 i! ,< The papers read The following following papers read on on this this motion: motion: NYSCEF Doc Nos Nos NYSCEF II I' II II il I, Ii Ii II II 'I Notice of Motion/Order Notice Motion/Order to Show Show Cause/ Cause/ Petition/ Petition/ Affidavits Mfidavits (Affirmations) (Mfirmations) and and Exhibits Exhibits Cross-motions Cross-motions Affidavits Mfidavits (Affirmations) (Affirmations) and and Exhibits Exhibits Answering (Affirmation) Answering Affidavit Affidavit (Mfirmation) Reply Affidavit (Affirmation) Reply Affidavit (Mfirmation) 632-640,644-646 632-640,644-646 647-652 697 697 Plaintiff moves jury in this the grounds Plaintiff moves to set set aside aside the the verdict verdict of of the the jury this action action on the grounds that that JI Ii If Ii it is inconsistent inconsistent and and against against the the weight weight of the the evidence. evidence. Plaintiff, worker, was unsecured wooden Plaintiff, a construction construction worker, was severely severely injured injured when when an an unsecured wooden il 1\ ii II II II staircase descending fell over. Plaintiff fell to the sustained injuries injuries staircase he he was was descending over. Plaintiff the ground ground and and sustained that that have have rendered rendered him him a quadriplegic. quadriplegic. Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff 1677 43rd 43rd St LLC ji !1 IiIf iiit !iII I.II' ll (1677) is the premises where the owner owner of of the the premises where the the accident accident occurred. occurred. Third-Party Third-Party Third-Party Defendant/Second Defendant/Second Third-Party Plaintiff Plaintiff BBM CONSTRUCTION CONSTRUCTION I the construction job. BBM was CORP., (BBM) was was the the General General Contractor Contractor on the construction job. was also also III Ii it Plaintiffs Plaintiffs employer. employer. If I I if IIII Defendant/Third Third-Party Second Second Third-Party Third-Party Defendant/Third Third-Party Defendant Defendant GILMAR GILMAR DESIGN DESIGN the job. job. CORPORATION masonry subcontractor CORPORATION (GILMAR) (GILMAR) was was a masonry subcontractor on on the I[ I, 'I Ii Plaintiff had been granted judgment finding finding 1677 liable liable pursuant pursuant to Plaintiff had been granted summary summary judgment I' 'I II il Labor his direct against his his Labor Law sections sections 240(1) 240(1) and and 241(6). 241(6). Plaintiff Plaintiff discontinued discontinued his direct claim claim against II employer BBM. A bifurcated trial was held as to liability liability on on the the Third-Party, Third-Party, Second Second employer bifurcated trial was held !i Third -Party, and and Third Third Third-Party Third-Party claims claims for indemnification. indemnification. Specifically, Specifically, the the issues issues put Third-Party, put ,I ,I 'I Il It 1\ II Ii 'I II to the the jury in the the liability liability phase were whether whether BBM, GILMAR GILMAR or or the the Plaintiff Plaintiff were were jury in phase were negligent and and whether whether their their negligence negligence was was a proximate cause of of the the accident. accident. negligent proximate cause 2 It !f 2 of 7 FILED: KINGS COUNTY CLERK 05/10/2023 03:23 PM NYSCEF DOC. NO. 702 INDEX NO. 502912/2017 RECEIVED NYSCEF: 05/10/2023 The jury returned a verdict verdict finding finding that that BBM was was negligent, negligent, and and its its negligence negligence was was The jury returned cause of of the the accident; accident; that that Plaintiff Plaintiff was was not not negligent; negligent; and and that that GILMAR GILMAR was was a proximate proximate cause negligent but but that that its its negligence negligence was was not not a proximate proximate cause cause of of the the accident. accident. The The jury found negligent jury found that BBM was was 100% 100% at at fault fault for for the the accident. accident. that Plaintiff argues argues that that the the jury's finding that that GILMAR GILMAR was was negligent, negligent, but but that that its its jury's finding Plaintiff negligence was was not not a substantial substantial factor factor in causing causing Plaintiffs Plaintiffs accident, accident, was was inconsistent inconsistent negligence and contrary contrary to to the the weight weight of of the the evidence. evidence. Plaintiff Plaintiff asks asks the the Court Court to to set set aside aside that that portion portion and ofthe verdict and and direct direct that that Judgment Judgment be be entered entered finding finding that that GILMAR's GILMAR's negligence negligence was was of the verdict substantial cause cause of of the the accident, accident, or or alternatively, alternatively, order order a new new trial trial on on the the issue issue of of a substantial whether GILMAR's GILMAR's negligence negligence was was a proximate proximate cause cause of of the the accident. accident. whether GILMAR counters counters that that the the evidence evidence at at trial trial could could support support a finding finding that that GILMAR GILMAR GILMAR negligent but but that that such such negligence negligence was was not not a proximate proximate cause cause of of the the accident. accident. was negligent GILMAR further further argues argues that that Plaintiff Plaintiff is not not an an aggrieved aggrieved party he never never asserted asserted a GILMAR party as he claim against against GILMAR GILMAR and and thus thus does does not not have have standing standing to to move move to to set set aside aside the the verdict. verdict. claim preliminary matter, matter, Plaintiff Plaintiff does does have have standing standing to to make make this this motion. motion. The The As a preliminary proposition that cases cases cited cited by by GILMAR GILMAR for for the the proposition that a first first party party plaintiff plaintiff who who makes makes no no direct direct claims against against third third party party defendants defendants is not not an an aggrieved aggrieved party party is misplaced. misplaced. Those Those cases, cases, claims (Ahrorgulova v. Mann, 108 AD3d AD3d 581 [2d [2d Dept Dept 2013]; 2013]; Faicco v. Mr. Lucky's (Ahrorgulova Mann, 108 Lucky's Pub, Inc., 131AD3d 920 [2d [2d Dept Dept 2015]; 2015]; Pennini Shooting Stars, Stars, 189 AD3d AD3d 861 [2d [2d Dept Dept 2020]), 2020]), 131 AD3d 920 Pennini v. Shooting involved appeals appeals of of dismissals dismissals of of third-party third-party complaints complaints taken taken pursuant pursuant to to CPLR CPLR 5511. involved However, this set aside aside the CPLR 4404(a), However, this motion motion to set the verdict verdict is made made pursuant pursuant to to CPLR 4404(a), which permits any party action, not party, to to move set aside which permits any party to the the action, not only only an aggrieved aggrieved party, move to to set aside a verdict. GILMAR GILMAR was properly joined the action complaints verdict. was properly joined in the action through through the the third-party third-party complaints 3 3 of 7 FILED: KINGS COUNTY CLERK 05/10/2023 03:23 PM NYSCEF DOC. NO. 702 INDEX NO. 502912/2017 RECEIVED NYSCEF: 05/10/2023 and thus thus both both Plaintiff Plaintiff and and GILMAR GILMAR are are parties parties to to the the action action (see Pinto v. House, 79 AD2d AD2d and 361 [1st Dept Harlem River River Consumers Manufacturers Dept 1981]; 1981]; Harlem Consumers Cooperative, Cooperative, Inc., v. Manufacturers New York Hanover Trust Company, Company, 68 68 Misc.2d Misc.2d 608 608 [Civil Court Court New York County County 1972] (where (where it Hanover Trust was held held that that a Plaintiff Plaintiff did did not not need need to to serve serve a summons summons when when serving. serving. an an amended amended party defendant party defendant party complaint complaint on on a third third party defendant because because a third third party defendant was was already already a party in the the action). action). While Plaintiff Plaintiff has has standing standing to move move to set set aside aside the the verdict, verdict, he he. ·has has not not While demonstrated jury's verdict, demonstrated that that the the jury's verdict, that that GILMAR GILMAR was was negligent negligent but but not not a substantial substantial factor in causing causing the the accident, accident, was was against against the the weight weight of of the the evidence. evidence. factor In reach a determination to support In order order to to reach determination that that there there was was not not sufficient sufficient evidence evidence to support a jury jury verdict, Court must verdict, the. the Court must conclude conclude that that based based upon upon the the evidence evidence presented presented at at trial trial there permissible inferences jury could there was no no valid valid line line of of reasoning reasoning or or permissible inferences by by which which the the jury could have have rendered Rockland Util., rendered its its verdict verdict (see Verizon NY, Inc. v. Orange & Rockland Util., Inc., 100 100 AD3d AD3d 983 983 [[2d 2d Dept ]). A verdict Dept 2012 2012]). verdict should should not not be be set set aside aside as contrary contrary to to the the weight weightofof the the evidence evidence unless jury could unless the the jury could not not have have reached reached the the .verdict verdict on on any any fair fair interpretation interpretation of of the the evidence Reitzel v. Hale, 128 AD3d Nicastro v. Park, 113 AD2d evidence (see Reitzel AD3d 1045 1045 [2d [2d Dept Dept 2015]; 2015]; Nicastro AD2d 129 [2d [2d Dept Dept 1985]). 1985]). The The staircase staircase in question question was was a movable movable wooden wooden staircase staircase that that was was set set up up against against a deck-like deck-like platform platform that that was was attached attached to to the the rear rear of of the the building building and and was was approximately approximately ten feet off platform. The ..ten off the the ground. ground. The The staircase staircase was was used used by by the the workers workers to to reach reach the the platform. The GILMAR GILMAR employees employees were were engaged engaged in constructing constructing a brick brick parapet parapet wall wall around around the the · platform. perimeter of the the platform. perimeter of 4 4 of 7 il FILED: KINGS COUNTY CLERK 05/10/2023 03:23 PM II II NYSCEF DOC. NO. 702 INDEX NO. 502912/2017 RECEIVED NYSCEF: 05/10/2023 If !I Ii Ii IIir I' i~ II II II ii During the the trial, trial, there there was was conflicting conflicting evidence evidence as to to whether whether the the staircase staircase was was During moved between between the the time time that that Plaintiff Plaintiff last last ascended ascended the the stairs stairs and and the the time time of of his his accident. accident. moved II Plaintiff presented presented evidence evidence that that the the staircase staircase was was moved moved and and that that the the GILMAR GILMAR Plaintiff II It II employees were were the the only only employees employees working working in the the vicinity vicinity during during that that time. time. Plaintiff Plaintiff also also employees II introduced evidence evidence that that the the GILMAR GILMAR employees employees added added two two courses courses of of bricks bricks to to the the introduced II I' II portion of of the the parapet parapet wall wall of of the the platform platform where where the the stairs stairs were were on on the the date date of of the the portion 'I 11 ii !i II II Ii ]1 II,I accident. accident. Plaintiff argued-to argued.to the the jury that GILMAR GILMAR employees employees had had the the mQtive motive to to move move the the Plaintiff jury that staircase because because it was was in in the the way way of of their their adding adding the the two two courses courses of of brick. brick. staircase 'I Ii Plaintiff a~d a~d 1677 argued argued that that by by adding adding the the two two courses courses of of bricks,. bricks, the theGILMAR Plaintiff GILMAR II workers changed changed the the configuration configuration of of the the staircase staircase so that that the the stringers stringers of of the the staircase staircase workers if ,e il II II it " 11 II "II !i ij !i I,'I 'I rested of of the the side side of of the the parapet wall of of the the platform instead of of the the top top of of the the parapet parapet wall platform instead parapet rested where they they had had previously rested. previously rested. where Plaintiff and and 1677 further further argued argued that that this this change change in in configuration configuration made made the the stairs stairs Plaintiff less safe. less Plaintiff's expert, expert, Dr. Pugh, Pugh, made made a written written report report in in which which he he concluded concluded that that the the Plaintiffs II ii jl staircase was was unsafe unsafe because because it was was not not secured secured to to the the platform platform but but merely merely leaned leaned against against staircase !1 stated that that the the staircase staircase was was not not secured secured but but relied relied on on friction friction of of the the wooden wooden it. He stated III, stringers leaning leaning on on the the wall wall and and ground ground to to keep keep it from from slipping. slipping. stringers Ii 'I Ii II !I il n Ii 'I Pugh stated stated in in his his report, report, "Whether "Whether or or not not the the temporary temporary wooden wooden stairway stairway was was Pugh moved laterally laterally while while the the plaintiff was working working the the platform should not not have have been been a factor factor moved plaintiff was platform should " II the accident, accident, because because the the temporary temporary wooden wooden stairway stairway would would require require fixing fixing to to the the in the Ii ,I :1 1i building or or building building extension". extension". building 5 It 5 of 7 FILED: KINGS COUNTY CLERK 05/10/2023 03:23 PM NYSCEF DOC. NO. 702 I INDEX NO. 502912/2017 RECEIVED NYSCEF: 05/10/2023 Pugh Pugh testified testified at at trial trial that that it did did not not matter matter if the the staircase staircase was was moved moved or or not not during during the the day day after after it had had been testimony in essence essence was was that that it was was the the failure failure been put put in place. place. His testimony )1 II 'II, 'I II Ii If to secure platform rather secure or or attach attach the the ladder ladder to the the platform rather than than moving moving the the ladder ladder that that made made it unsafe. unsafe. It It is apparent apparent that that the the jury jury accepted accepted Pugh's Pugh's opinion opinion that that moving moving the the staircase staircase was !~ 'if Ii If,i il not a cause cause of of the the failure failure of of the the staircase. staircase. Pugh's Pugh's report report and and testimony testimony were were a sufficient sufficient not evidentiary basis for the jury's to find evidentiary basis the jury's find that that GILMAR's GILMAR's employees employees action action were were not not a Ii proximate cause of the the accident. accident. Thus, Thus, that that finding finding was was not not against against the the weight weight of the the proximate cause if !l evidence. evidence. !I I I !~ ith Ii !i :rI, i~ If Nor was jury found but not Nor was it inconsistent inconsistent that that the the jury found that that GILMAR GILMAR was was negligent negligent but not a substantial substantial factor factor in causing causing the the accident. accident. I II il Ii!! III Ir il Pugh bricks to the parapet Pugh also also testified testified at at trial trial that that the the adding adding of the the two two courses courses of of bricks the parapet wall made made it more more difficult difficult to get get onto onto the the unsecured unsecured ladder. ladder. it The jury could The jury could have have found found that that GILMAR GILMAR workers workers were were negligent negligent in moving moving the the Ii bricks so that staircase when it added staircase when added the the additional additional courses courses of bricks that the the top top of of the the stringer stringer of ii'i iil I! ,'I1 iti} !iIi the platform. They the staircase staircase was was leaning leaning on on the the side side rather rather than than on top top of of the the platform. They could could have have "" also accepted accepted the the argument argument that that this this made made the the staircase staircase less less stable stable and and more more difficult difficult to !, access. However, However, it would would not not have have been inconsistent for for the the jury conclude, in light light of access. been inconsistent jury to conclude, j! I!I! II' i l.IIII Dr. Pugh's Pugh's report report and and testimony, testimony, that that the the sole cause cause of of the the accident accident was was the the fact fact that that the the IIif if I' 1!I! it If i I I staircase attached or platform. staircase was was not not attached or secured secured to the the platform. Nor would it have have been been inconsistent inconsistent for the the jury conclude that, that, even even if the the Nor would jury to conclude moving of the the staircase staircase after after adding adding two two courses courses of bricks made the the staircase staircase less less stable stable moving bricks made or more more difficult difficult to access, access, the the chan~e change did did not not significantly significantly contribute contribute to causing causing the the or 6 6 of 7 INDEX NO. 502912/2017 FILED: KINGS COUNTY CLERK 05/10/2023 03:23 PM NYSCEF DOC. NO. 702 RECEIVED NYSCEF: 05/10/2023 accident thus was factor in causing the accident. may be more accident and and thus was not not a substantial substantial factor causing the accident. There There may be more than one to an accident, but but to to be be substantial substantial it cannot be slight slight of than one cause cause to an accident, cannot be of trivial trivial (see PJI PJI WHEREFORE hereby ORDERED that Plaintiffs Plaintiffs motion motion to set aside the WHEREFORE it is hereby ORDERED that set aside the verdict is denied. denied. verdict Decision and and Order this Court. This This constitutes constitutes the the Decision Order of this Court. ENTER: ENTER: \t JSC HON. 8AlTlf\ HON. WAYNE WAYNE SArnA J.S.C. J.S.C. 7 7 of 7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
