Jimmy Gomez, et al., appellants, v. City of New York, et al., respondents. (2026)

Argued—January 12, 2026

DECISION & ORDER

Q/

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered August 2, 2023, and (2) a judgment of the same court entered August 11, 2023.  The order, insofar as appealed from, denied that branch of the plaintiffs' motion which was pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability as inconsistent and contrary to the weight of the evidence and for a new trial.  The judgment, upon the jury verdict and the order, is in favor of the defendants and against the plaintiffs dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1];  Matter of Aho, 39 N.Y.2d at 248).

The plaintiff Jimmy Gomez (hereinafter the injured plaintiff) sustained personal injuries while performing construction work on premises owned by the defendants City of New York, New York City Department of Education, and New York City School Construction Authority in Middle Village.  The City, New York City Department of Education, and New York City School Construction Authority hired the defendant E.W. Howell Co., LLC, as the general contractor of the project, who then hired the injured plaintiff's employer to perform the construction work.  On March 6, 2017, at approximately 6:45 a.m., the injured plaintiff, while standing near a portable propane heater on the premises, sustained burns to the back of his right leg.

The injured plaintiff, and his wife suing derivatively, commenced this personal injury action, alleging, inter alia, violations of Labor Law §§ 200 and 241(6).  The Labor Law § 241(6) cause of action was premised upon alleged violations of Industrial Code (12 NYCRR) §§ 23–1.14(a)(3), 23–1.14(b)(1)(iii), and 23–1.14(b)(1)(v).  After a trial on the issue of liability, the jury determined that the defendants violated Labor Law § 200(1), 12 NYCRR 23–1.14(b)(1)(iii), and 12 NYCRR 23–1.14(b)(1)(v), but that such violations were not a proximate cause of the injured plaintiff's injuries.  The jury further determined that the defendants did not violate 12 NYCRR 23–1.14(a)(3).

The plaintiffs thereafter moved, inter alia, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as inconsistent and contrary to the weight of the evidence and for a new trial.  In an order entered August 2, 2023, the Supreme Court, among other things, denied that branch of the plaintiffs' motion.  A judgment, upon the jury verdict and the order, was subsequently entered in favor of the defendants and against the plaintiffs dismissing the complaint.  The plaintiffs appeal.

“ ‘A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence’ ” (Thomas v. New York City Tr. Auth., 242 AD3d 1246, 1247, quoting Angieri v. Musso, 225 AD3d 43, 51;  see Traca v Catapano Engg. & Architecture, P.C., 237 AD3d 1134, 1135–1136).  “ ‘When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view’ ” (Thomas v. New York City Tr. Auth., 242 AD3d at 1247, quoting Sela v. Katz, 165 AD3d 1191, 1192;  see Garcia v. 1000 Dean, LLC, 219 AD3d 1491, 1492;  Casanova v Aaron B. Chevrolet Co., Inc., 211 AD3d 1008, 1009).  “ ‘It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses' ” (Thomas v. New York City Tr. Auth., 242 AD3d at 1247 [internal quotation marks omitted], quoting Angieri v. Musso, 225 AD3d at 51).

Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Ross v Curtis–Palmer Hydro–Elec.  Co., 81 N.Y.2d 494, 501–502 [internal quotation marks omitted];  see Murphy v. 80 Pine, LLC, 208 AD3d 492, 496).  “ ‘To succeed on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident’ ” (Garcia v. 1000 Dean, LLC, 219 AD3d at 1493, quoting Murphy v. 80 Pine, LLC, 208 AD3d at 497).  Pursuant to 12 NYCRR 23–1.14(a)(3), “[t]emporary combustion devices shall not be placed on any combustible floor, platform or any other combustible surface unless such surface is protected or insulated for a minimum distance of six feet in a horizontal direction from the perimeter of the combustion device on all sides.  The minimum overhead or side clearance from the combustion device to any combustible material shall be four feet.”  Further, 12 NYCRR 23–1.14(b)(1)(v) requires that “[a] designated person ․ be in attendance on the job site at all times when liquefied gas combustion devices are operating.”  Additionally, 12 NYCRR 12–1.14(b)(1)(iii) provides that “[a]reas in which temporary combustion devices fueled by liquefied gas are used shall have legible warning signs affixed to every entrance to such areas.  Such signs shall be conspicuously located so as to be readily visible to persons approaching such areas.  Such signs shall bear the words, ‘DANGER–FLAMMABLE GAS' in letters at least four inches in height on a contrasting background.”

Here, the jury's verdict necessarily required determinations of witness credibility to resolve conflicting testimony as to the happening of the accident.  Under the circumstances, the jury, resolving issues of credibility against the injured plaintiff as to the happening of the accident, could have fairly interpreted the evidence and rendered its verdict finding that the defendants violated 12 NYCRR 23–1.14(b)(1)(iii) and 12 NYCRR 23–1.14(b)(1)(v) but that those violations were not a proximate cause of the occurrence (see generally Orellana Siguenza v Cemusa, Inc., 127 AD3d 727, 729).

Contrary to the plaintiffs' further contention, the issues of negligence and proximate cause were not inextricably interwoven.  “ ‘A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause’ ” (Tafolla v. Aldrich Mgt. Co., LLC, 220 AD3d 690, 691, quoting Garrett v. Manaser, 8 AD3d 616, 617;  see Avila v. VVFJ Realty, LLC, 212 AD3d 699, 700;  Casanova v Aaron B. Chevrolet Co., Inc., 211 AD3d at 1009).  The jury, resolving issues of credibility against the injured plaintiff as to the happening of the accident, could have reasonably concluded that while the defendants were negligent for failing to provide the injured plaintiff with a safe place to work and for violating the Industrial Code regulations mentioned above, the accident was caused solely by the conduct of the injured plaintiff in improperly turning on the heater.  Since the finding that the defendants were negligent can be reconciled with the finding that the defendants' negligence was not a substantial factor in causing the accident, the jury is, therefore, presumed to have adopted that view of the evidence (see Tafolla v. Aldrich Mgt. Co., LLC, 220 AD3d at 691;  Sattar v. City of New York, 201 AD3d 756, 759).

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court properly denied that branch of the plaintiffs' motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as inconsistent and contrary to the weight of the evidence and for a new trial.

LASALLE, P.J., VOUTSINAS, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court