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Mark V. THOMPSON, Plaintiff, v. CLIFFSTAR CORPORATION, and Plibrico Company, LLC, Defendants.
On July 13, 2010 the plaintiff, Mark V. Thompson (hereinafter the “plaintiff”) was injured during the course of his employment while working in the boiler room at property owned by the defendant, Cliffstar Corporation (hereinafter the “defendant” and/or “Cliffstar”). As a result of this incident, an action was commenced involving multiple parties. By the time this matter proceeded to trial on February 21, 2017, the only remaining defendant was Cliffstar.
The plaintiff alleged liability against the defendant pursuant to Labor Law §§ 200, 240(1), 241(6), and common law negligence. The primary issues in this action and during the trial included the type of work the plaintiff was performing at the time of the incident; whether the plaintiff was entitled to the protections afforded by various Labor Law provisions; and the manner and method of the work. This list is not exhaustive. Extensive litigation and motion practice was conducted in this action, up to and during the time of the trial.
The matter proceeded to trial and upon the conclusion of proof, but before the jury adjourned to deliberate, this Court granted the defendant's motion for a directed verdict and dismissed the plaintiff's claims pursuant to Labor Law §§ 240(1) and 241(6). Plaintiff's corresponding directed verdict motion was denied in its entirety, and the jury was charged with deciding whether the defendant was liable pursuant to either Labor Law § 200 or common law negligence. In both instances, on February 27, 2017 after due deliberation, the jury unanimously answered “no,” and found no liability against the defendant. The jury's “no cause of action” verdict was reported to the Court, and this concluded the trial proceedings.
The plaintiff now moves pursuant to CPLR § 4404(a) seeking an Order setting aside the jury verdict and granting a new trial on the ground the verdict is “contrary to the weight of the evidence” or alternatively in the interest of justice. Plaintiff seeks a new trial on all issues including Labor Law §§ 200, 240(1), 241(6), and common law negligence
In support of his motion, the plaintiff submitted the Attorney Affidavit of Samuel J. Capizzi, Esq. with attached exhibits sworn to on March 27, 2017 (hereinafter the “Capizzi Affidavit”), as well as the Reply Affidavit of Mr. Capizzi sworn to on April 13, 2017 in further support of the plaintiff's motion (hereinafter the “Capizzi Reply”). The defendant's opposition papers consist of the Attorney Affirmation of Robert Scott, Esq. with attached exhibits sworn to on April 6, 2017.
Counsel for plaintiff and defendant personally appeared for oral argument on April 19, 2017 in further support of their respective positions.
CONCLUSIONS OF LAW:
After reviewing all submissions, and hearing oral argument of all parties before this Court, the relief sought by the plaintiff is denied in full for the reasons set forth below.
CPLR § 4404(a). Post trial motion for judgment and new trial:
Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court (CPLR § 4404(a) ) (emphasis added).
The law in New York is very well-settled when it comes to disturbing jury verdicts. Where a party moves to set aside a jury verdict as against the weight of the evidence, as plaintiff does at least in part here, the motion should not be granted unless the preponderance of the evidence in the movant's favor is so great that the verdict could not have been reached upon any fair interpretation of the evidence (Ruddock v. Happell, 307 AD2d 719, 720, 763 NYS2d 868 [4th Dept 2003] ) (internal citation omitted). If “the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” (Ruddock, 307 AD2d at 720).
The plaintiff also argues the motion should be granted in the interest of justice.
The standard is clear and seemingly uncontested by the parties here, and this Court is very mindful of the importance of not invading the province of a clear-headed jury that has weighed the evidence, listened intently to clear and agreed upon jury instructions, deliberated, and then reached a unanimous verdict on all questions.
Clearly it is within the province of the jury to determine issues of credibility, and great deference should be given to the jury because it has the opportunity to see and hear the witnesses (see Sauter v. Calabretta, 103 AD3d 1220, 959 NYS2d 579 [4th Dept 2013]; Kim v. New York City Transit Authority, 87 AD3d 531, 928 NYS2d 315 [2d Dept 2011] ). The jury in the present case saw and heard the testimony from the actors involved in the incident as well as experts who offered opinion testimony. The jury assessed their respective credibility, and then unanimously determined the case. Great deference should be given to this process generally, and this Court must afford such deference to the jury in this case because the evidence did not so preponderate in favor of the plaintiff that the jury verdict could not have been reached on any fair interpretation of the evidence (see Sauter, 103 AD3d at 1220). To invade the deliberative process and province of the jury under the facts here would be an abuse of discretionary power.
Labor Law § 200 and Common Law Negligence:
Plaintiff initially argues that the jury determinations under Labor Law § 200 and common law negligence were against the weight of the credible evidence, primarily based upon the testimony of Cliffstar's own expert.
However, as stated earlier, it is within the province of the jury to determine issues of credibility, and great deference should be given to the jury because it has the opportunity to see and hear the witnesses (see Sauter v. Calabretta, 103 AD3d 1220, 959 NYS2d 579 [4th Dept 2013]; Kim v. New York City Transit Authority, 87 AD3d 531, 928 NYS2d 315 [2d Dept 2011] ).
In light of this clear standard, and on the extensive proof presented to the jury for its consideration, the plaintiff has failed to demonstrate the jury verdict was against the weight of the evidence.
Plaintiff expands his argument with respect to the jury verdict and asserts that the interest of justice also requires a new trial because a portion of the testimony of plaintiff's expert, John Pina, CSP, was precluded by this Court upon the defendant's motion in limine. Plaintiff relies heavily on Landry v. General Motors Corp. (210 AD2d 898 [4th Dept. 1994] ) in arguing that OSHA proof should have been permitted during the trial. However, plaintiff misapprehends the basis of the preclusion ruling made during trial. This Court did not rule in summary fashion that OSHA violations cannot be submitted to a jury for consideration, rather this Court precluded the Pina testimony because the plaintiff, by his own concession, failed to timely allege and amplify the OSHA claims upon which he sought to introduce the testimony at trial (see Barzahi v. Maislin Transport, 115 AD2d 679, 684 [2d Dept. 1985] ).
Finally, in both his reply papers and during the course of oral argument, plaintiff emphasized there were two separate theories of Labor Law § 200 liability that this jury could have considered. Importantly, the jury charge was catered to the facts and circumstances of this case, the charge was agreed to by all parties, and the jury was in fact charged with two separate theories of Labor Law § 200 liability. The charge accurately reflected what all counsel, including the plaintiff, agreed to in open court.
Specifically, one of the two Labor Law § 200 theories did not require the jury to find that Cliffstar supervised or controlled the work site (Scott Affirmation, Exhibit I, pp. 21-26). The jury was not confused by the charge, rather it was deliberate and conscientious in its process. The jury simply found no liability against the defendant. The interest of justice does not require a new trial here.
The plaintiff has failed to raise an issue on this motion that would obligate this Court to set aside the jury verdict and order a new trial.
The remaining issues on this motion stem from the directed verdict motions.
Labor Law §§ 240(1) and 241(6):
Although not decided by the jury, plaintiff next asserts that the interest of justice requires this Court to reverse its own rulings made at the conclusion of proof at which time this Court dismissed the plaintiff's Labor Law §§ 240(1) and 241(6) claims. Plaintiff also argues these rulings were contrary to the weight of the evidence.
This Court ruled from the Bench at the conclusion of proof that the defendant's CPLR § 4401 motion for a directed verdict should be partially granted (dismissing Labor Law §§ 240(1) and 241(6) ), and that plaintiff's own motion for a directed verdict should be entirely denied.
As on a motion pursuant to CPLR § 4401 for judgment during trial at the close of a plaintiff's evidence, the standard on a motion to set aside a verdict pursuant to CPLR § 4404 (a) as a matter of law is whether the jury could find for the plaintiff by any rational process, and in this analysis the evidence in favor of the plaintiff must be accepted as true and the plaintiff given every favorable inference that can reasonably be drawn therefrom (see Szczerbiak v Pilat, 90 NY2d 553, 556, 686 NE2d 1346, 664 NYS2d 252 ; Wong v Tang, 2 AD3d 840, 769 NYS2d 381 ; Farrukh v Board of Educ. of City of NY, 227 AD2d 440, 441, 643 NYS2d 118 ; Siegel, NY Prac. §§ 405, 408, pp. 685, 691 [4th ed] ).
While framed as a CPLR § 4404(a) motion, the plaintiff for practical purposes asks this Court to reverse its own CPLR § 4401 ruling.
This Court afforded the plaintiff every permissible inference that could have properly been drawn from the facts presented, considered those facts in the light most favorable to the plaintiff, and ruled a directed verdict was appropriate on the threshold issue of whether the Labor Law afforded the plaintiff protection (Bennice v. Randall, 71 AD3d 1454, 1455 [4th Dept 2010] ). This Court found there was no rational process by which the jury could find the plaintiff was engaged in an activity afforded Labor Law protection pursuant to either Labor Law §§ 240(1) or 241(6). As a result, both claims were dismissed and the plaintiff's own directed verdict motion was denied.
The work the plaintiff was engaged in at the time of the incident in this case was routine maintenance, specifically he was installing a new steel channel — a job that only took a few hours to perform and was scheduled as part of annual maintenance. The equipment was not inoperable, malfunctioning, or operating improperly - the plaintiff merely had to weld the prefabricated channel to the door of the boiler (Bissell v. Town of Amherst, 13 Misc 3d 1216(A) [Sup. Ct. Erie Co.], affd. Bissell v. Town of Amherst, 32 AD3d 1287 [4th Dept 2006].
Plaintiff's motion reiterates many of the same arguments he offered at the conclusion of proof including the assertion that this case did not merely involve scheduled maintenance, rather this was a scheduled shut down of the boiler to inspect it and it was not until the boiler was shut down, and the door was opened, that a discovery was made resulting in refractory being replaced at which time the plaintiff was then “intricately involved in the process of demolishing and rebuilding the door” (Capizzi Reply, ¶ 12). Plaintiff then relied on Prats v. Port Authority of New York, (100 NY2d 878, 882  ) to argue he was a part of a team performing work essential to the enumerated Labor Law activity. However, the plaintiff here was merely welding a steel shelf.
Plaintiff's work was separate and distinct from the other work that he now argues was a part of the team approach. Notably, Prats is readily distinguishable from this case because the plaintiff here was not employed by the contractor (Plibrico) that removed and installed refractory material from the door over the course of three to four days; plaintiff here was not employed substantially to perform work that involved an alteration; the ongoing work at Cliffstar involved separate, sequential phases involving different employees working for different contractors; and the work here did not go beyond mere maintenance because plaintiff was only installing a pre-cut shelf by simply welding it to the boiler door (see also Joblon v. Solow, 91 NY2d 457  ) (holding an alteration of a building or structure requires a significant physical change to its configuration or composition); Molloy v. 750 7th Avenue Assoc., 256 AD2d 61 [1st Dept 1998] (holding changing elevator contacts and cables, and putting new chips in computer boards, was a mere routine maintenance activity).Plaintiff here was not engaged in work that rose to the level of being a protected activity. Rather, his task was simple, discreet, and separate from the other work he now seeks to attach himself to.
Plaintiff also attaches a portion of the Record on Appeal from Melski v. Fitzpatrick & Weller, (107 AD3d 1447 [4th Dept 2013] ) in an effort to dissuade this Court from relying on Melski for the proposition that plaintiff's work here was not protected.
This Court has reviewed this new information, and Melski should still be applied. Even Prat, (100 NY2d at 883) reminds us that whether Labor Law § 240(1) protection should be afforded must be determined on a “case-by-case basis, depending on the context of the work.” This Court finds the plaintiff's work here was much more akin to replacing a torn window screen than it was to anything the plaintiff would otherwise have this Court believe was entitled to Labor Law protection (see Chizh v. Hillside Campus Meadows Assoc., 3 NY3d 664, 665  ).
Accordingly, it is hereby:
ORDERED, that the plaintiff's motion is denied in its entirety, and it is further
ORDERED, that this shall constitute the Decision and Order of the Court. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.
Paul B. Wojtaszek, J.
Response sent, thank you
Docket No: 2012-000496
Decided: July 13, 2017
Court: Supreme Court, Erie County, New York.
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