DEDES v. Main Connection, Inc., et al., third-party defendants. (1999)

Supreme Court, Appellate Division, Second Department, New York.

Mitchell DEDES, plaintiff-appellant-respondent, v. Ronald A. CAMBRIA, d/b/a G.R.J. Richmond Company, defendant third-party plaintiff-respondent-appellant, Cambria Home Remodeling Corp., defendant-respondent; Main Connection, Inc., et al., third-party defendants.

Decided: February 08, 1999

CORNELIUS J. O'BRIENJ.P., FRED T. SANTUCCI, DANIEL W. JOY and GLORIA GOLDSTEIN, JJ.

Mirman, Markovits & Landau, P.C., New York, N.Y. (Thomas Torto of counsel), for plaintiff-appellant-respondent. Williamson & Williamson, P.C., New York, N.Y. (Jerold Goldstein of counsel), for defendant third-party plaintiff-respondent-appellant Ronald A. Cambria, d/b/a G.R.J. Richmond Company. Smith, Mazure, Director, Wilkins, Young, Yagerman & Tarallo, New York, N.Y. (Steven Brizel and Robert P. Siegel of counsel), for defendant-respondent Cambria Home Remodeling Corp. James P. O'Connor (Harvey, Pennington, Herting & Renneisen, LLC, New York, N.Y. [Carolyn B. Stevens and Andrew M. Moskowitz] of counsel), for third-party defendant Main Connection, Inc.

In an action to recover damages for personal injuries, etc., the plaintiff appeals from a judgment of the Supreme Court, Kings County (Vinik, J.), dated December 8, 1997, which, upon a jury verdict, and upon the denial of his motion pursuant to CPLR 4404 to set aside the verdict and for judgment in his favor as a matter of law, is in favor of the defendants and against him dismissing the complaint, and the defendant Ronald A. Cambria, d/b/ a G.R.J. Richmond Company cross appeals from the same judgment.

ORDERED that the cross appeal is dismissed, as the defendant Ronald A. Cambria, d/b/a G.R.J. Richmond Company is not aggrieved by the judgment; and it is further,

ORDERED that the judgment is reversed, the plaintiff's motion is granted, and the matter is remitted to the Supreme Court, Kings County for a new trial on the issue of damages only; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The only evidence adduced at trial indicated that while the plaintiff was working atop a ladder which had no protective rubber skids, the ladder slid to the side causing the plaintiff to fall. Based upon this evidence the jury concluded that the defendants had violated Labor Law § 240, but that the violation was not a proximate cause of the accident. However, once the jury found that Labor Law § 240 had been violated, there was no evidence on this record upon which they could conclude that the violation of Labor Law § 240 was not a proximate cause of the injuries (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898; Chaitovitz v. Lewis, 222 A.D.2d 392, 634 N.Y.S.2d 727). Accordingly, the trial court erred in failing to grant the plaintiff's motion pursuant to CPLR 4404 to set aside the verdict and for judgment in his favor as a matter of law.

MEMORANDUM BY THE COURT.

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