NASSAR v. MACY INC (2024)

Judgment, Supreme Court, New York County (Paul A. Goetz, J.), entered February 21, 2024, bringing up for review an order, same court and Justice, entered January 24, 2023, which, after a jury trial, granted defendants’ motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of plaintiff and against defendant Structure Tone, Inc., on the Labor Law § 200 and common-law negligence claims, entering judgment in defendants’ favor, and denied plaintiff's motion to vacate the jury's final damages award in favor of the jury's original award, unanimously affirmed, without costs.  Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court providently exercised its discretion in dismissing plaintiff's claims premised on Labor Law § 200 and common-law negligence and setting aside the jury verdict related to plaintiff's first accident.  There is no evidence in the record that defendant had actual or constructive notice of the defective wheel on an A-frame cart that allegedly caused plaintiff's accident (see Cahill v. Triborough Bridge & Tunnel Auth., 31 A.D.3d 347, 351, 819 N.Y.S.2d 732 [1st Dept. 2006]).  Testimony at trial indicated that the cart looked normal and functioned properly, and there had never been any complaints about any of the carts.  Plaintiff testified that the wheel was not visibly defective, and he only noticed that it wobbled after being loaded with approximately 400 pounds.  Without any evidence of notice, the jury could not have drawn a permissible inference that Structure Tone was liable for plaintiff's injuries (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]).

To the extent plaintiff argues that the jury found defendant in violation of Labor Law § 200 based on a defective ramp, this argument is unavailing.  Plaintiff did not testify that the ramp caused his accidents but rather consistently blamed the defective wheel on the A-cart.  Notably, at trial, plaintiff expressly declined to question his expert on whether the ramp “represented a dangerous condition” or a “substantial factor in causing plaintiff's accident.”

Because we affirm dismissal of plaintiff's claims, we do not consider plaintiff's challenge to the jury's initial determination of damages, which was higher than the damages ultimately awarded to plaintiff.  In any event, a jury may alter its verdict immediately after pronouncing it in open court, and before it is received and entered.  Similarly, the court, of its own accord, may send a jury back to reconsider their verdict if it appears mistaken, and before it is received and recorded (Matter of National Equip. Corp. v. Ruiz, 19 A.D.3d 5, 12–13, 794 N.Y.S.2d 2 [1st Dept. 2005]).  Here, the jury was permitted to revise its total damages award, including future damages, where there was an inconsistency between the verdict sheet and the amount for past damages read in open court, and the jury was directed to resolve this inconsistency (see National Equip., 19 A.D.3d at 7–8, 794 N.Y.S.2d 2).

We reject plaintiff's argument, raised for the first time on appeal, that he was deprived of a fair trial due to alleged trial errors.  The testimony plaintiff complains of—defendants’ questioning of their expert as to whether defendants were negligent—is the same testimony plaintiff elicited from his expert.  Expert testimony that “help[s] to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” is permissible even if it concerns “both the ultimate questions and those of lesser significance” (Sanders v. Otis El. Co., 232 A.D.2d 327, 327, 649 N.Y.S.2d 19 [1st Dept. 1996];  see Matter of Sanovia G., 245 A.D.2d 207, 208, 666 N.Y.S.2d 596 [1st Dept. 1997]).