NATOLI v. CITY OF NEW YORK (2020)

Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered April 29, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion pursuant to CPLR 4404 to set aside the verdict, and granted plaintiff's cross motion pursuant to CPLR 4404 to set aside the verdict to the extent of directing a new trial on the issues of past and future pain and suffering unless defendants stipulated to an increase in the jury's awards for those categories of damages, unanimously affirmed, without costs.

In a prior appeal, we determined that a triable issue of fact existed as to the weight of the wooden pallet/skid involved in plaintiff's accident, and whether a safety device was therefore required by Labor Law § 240(1) when plaintiff and a coworker were attempting to move it (see 148 A.D.3d 489, 49 N.Y.S.3d 663 [1st Dept. 2017]). At trial, plaintiff's expert engineer testified that, based on its size, weight, and configuration, it was unsafe for two laborers, such as plaintiff and his coworker, to manually move the pallet/skid, and that a safety device, such as a hoist, crane, gantry crane, or panel truck, was required. This testimony afforded the jury a valid line of reasoning and permissible inferences to conclude that defendants violated Labor Law § 240(1), and its verdict is therefore supported by legally sufficient evidence (see Gutierrez v. Harco Consultants Corp., 157 A.D.3d 537, 67 N.Y.S.3d 624 [1st Dept. 2018]; Cardenas v. One State St., LLC, 68 A.D.3d 436, 890 N.Y.S.2d 41 [1st Dept. 2009]; see generally Killon v. Parrotta, 28 N.Y.3d 101, 108, 42 N.Y.S.3d 70, 65 N.E.3d 41 [2016]; Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498–499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978]).

The court properly declined to set aside the jury's verdict on the ground of juror confusion. There is no evidence on the trial record “that the jury was ‘substantially confused’ by the verdict sheet and the charge and thus was unable to make a proper determination upon adequate consideration of the evidence” (Martinez v. Te, 75 A.D.3d 1, 6, 901 N.Y.S.2d 161 [1st Dept. 2010] [citation omitted]; see Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 164–165, 952 N.Y.S.2d 26 [1st Dept. 2012]; Breen–Burns v. Scarsdale Woods Homeowners' Assn. Inc., 73 A.D.3d 661, 662, 901 N.Y.S.2d 272 [1st Dept.], lv dismissed 15 N.Y.3d 837, 909 N.Y.S.2d 11, 935 N.E.2d 802 [2010], lv denied 16 N.Y.3d 704, 2011 WL 500495 [2011]; see also Sharrow v. Dick Corp., 86 N.Y.2d 54, 60–61, 629 N.Y.S.2d 980, 653 N.E.2d 1150 [1995]).

Contrary to defendants' contention, the jury was entitled to credit the testimony of plaintiff's treating orthopedic surgeon and neurologist, as well as that of his expert economist, which was legally sufficient to support the awards for future medical expenses and future lost earnings with the requisite degree of reasonable certainty (see Coleman v. City of New York, 87 A.D.3d 401, 401, 928 N.Y.S.2d 23 [1st Dept. 2011]; see generally Beh v. Jim Willis & Sons Bldrs., Inc., 28 A.D.3d 1227, 1227–1228, 814 N.Y.S.2d 476 [4th Dept. 2006], cited in Peat v. Fordham Hill Owners Corp., 110 A.D.3d 643, 645, 974 N.Y.S.2d 61 [1st Dept. 2013], lv denied 23 N.Y.3d 903, 2014 WL 1887336 [2014]; compare Martinez v. Metropolitan Transp. Auth., 159 A.D.3d 584, 585, 70 N.Y.S.3d 50 [1st Dept. 2018]; Jeffries v. 3520 Broadway Mgt. Co., 36 A.D.3d 421, 423, 827 N.Y.S.2d 136 [1st Dept.], lv denied 8 N.Y.3d 811, 836 N.Y.S.2d 550, 868 N.E.2d 233 [2007]).

Finally, plaintiff's failure to object to the jury's award of $0 for both past and future pain and suffering as inconsistent with the jury's awards for past and future lost earnings and future medical expenses did not preclude the court from deciding whether “ ‘the jury's failure to award damages for pain and suffering [wa]s contrary to a fair interpretation of the evidence and constitute[d] a material deviation from what would be reasonable compensation’ ” (Ramos v. New York City Hous. Auth., 280 A.D.2d 325, 326, 721 N.Y.S.2d 21 [1st Dept. 2001] [internal quotation omitted]; see Stanford v. Rideway Corp., 161 A.D.3d 505, 73 N.Y.S.3d 882 [1st Dept. 2018] [separately evaluating whether jury's award of $0 for past pain and suffering was against the weight of the evidence and deviated from what would be reasonable compensation even though plaintiff had waived her argument that the jury's verdict was inconsistent]).

We have considered defendants' remaining contentions and find them unavailing.