SALAMONE v. << (1998)

Order, Supreme Court, Bronx County (Hansel McGee, J.), entered April 15, 1996, which, after a jury trial, inter alia, granted plaintiff's motion to set aside the jury's award of damages to the extent of vacating its awards for past and future pain and suffering unless the parties stipulated to increase those awards respectively from $150,000 to $500,000 and from $920,000 to $1,800,000 and granted the motion of defendant/third-party plaintiff Wincaf for a directed verdict upon its claim for common-law indemnification against the third-party defendants but which denied Wincaf's motion to set aside the verdict against it finding it 45% at fault, unanimously modified, on the law, to the extent of granting Wincaf's motion to set aside the verdict insofar as to vacate the jury's apportionment of fault and to substitute therefor the finding that Wincaf's liability pursuant to Labor Law § 240(1) is vicarious only, and to remand the matter for a new trial for the sole purpose of reapportioning liability among the defendants other than Wincaf, and otherwise affirmed, without costs.

 Contrary to appellant TOMI's contention, Wincaf's liability for plaintiff's damages was solely statutory, pursuant to Labor Law section 240(1);  there was no evidence that Wincaf directed or controlled the work performed by its subcontractors.   Thus, the trial court properly granted Wincaf's motion for a directed verdict upon its claim for common-law indemnification against the third-party defendants (Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 6-7, 358 N.Y.S.2d 685, 315 N.E.2d 751;  Carr v. Jacob Perl Assocs., 201 A.D.2d 296, 607 N.Y.S.2d 301;  Curtis v. 37th Street Assocs., 198 A.D.2d 62, 603 N.Y.S.2d 438).   However, the trial court's finding, necessary to its grant of Wincaf's motion for a directed verdict upon its claim for common-law indemnification, that Wincaf was no more than vicariously responsible for plaintiff's harm, was not consistent with its denial of Wincaf's motion to the extent that that motion sought to have the jury's apportionment of liability against it set aside;  Wincaf cannot have been at once entitled to common-law indemnification and, as the jury found, 45% responsible for plaintiff's injury.   Accordingly since, as noted, we agree with the trial court that there was no evidence of fault on Wincaf's part, we modify to the extent of vacating the jury's apportionment of fault against Wincaf.   Having thus determined that the jury's apportionment of liability is not sustainable, it is necessary to remand the matter for a new trial for the purpose of reapportioning liability as between the defendants other than Wincaf (see, e.g., Misel v. N.F.C. Cab Corp., 240 A.D.2d 294, 658 N.Y.S.2d 625).

 Respecting the amount of the damages, we agree with the trial court that in light of the uncontroverted evidence that plaintiff sustained serious brain injuries, which caused permanent emotional, visual, cognitive and motor dysfunction, and two fractured vertebrae, the jury's award of $150,000 for past pain and suffering, deviated materially from what is reasonable compensation (see, Connor v. City of New York, 178 A.D.2d 359, 577 N.Y.S.2d 808).   Nor, given the seriousness and permanence of plaintiff's injuries, do we see any reason to disturb the trial court's vacatur of the jury's plainly inadequate award for future pain and suffering.

We have considered defendant-appellant's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.