ANDERSON v. Texstar Construction Corporation, et al., third-party defendants-respondents.

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

Lloyd ANDERSON, et al., plaintiffs-respondents-appellants, v. SCHUL/MAR CONSTRUCTION CORP., defendant third-party plaintiff-appellant-respondent, Karnes Plumbing Corp., defendant-appellant-respondent; Texstar Construction Corporation, et al., third-party defendants-respondents.

Decided: February 22, 1999

WILLIAM D. FRIEDMANN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY and DANIEL F. LUCIANO, JJ. Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for defendant third-party plaintiff-appellant-respondent. O'Brien & Mayr, Rockville Centre, N.Y. (James M. O'Brien, Robert Churbuck, and Nicholas P. Calabria of counsel), for defendant-appellant-respondent. Sullivan & Liapakis, P.C., New York, N.Y. (Harvey G. Lockhart and Stephen C. Glasser of counsel), for plaintiffs-respondents-appellants. Hammill, O'Brien, Croutier & Dempsey, Smithtown, N.Y. (Wade T. Dempsey of counsel), for third-party defendants-respondents.

In an action to recover damages for personal injuries, etc., (1) the defendant third-party plaintiff Schul/Mar Construction Corp. appeals from (a) an order of the Supreme Court, Suffolk County (Floyd, J.), entered July 1, 1997, which denied its motion for summary judgment against the defendant Karnes Plumbing Corp. on its cross claim for indemnification and denied its motion for summary judgment on its third-party complaint against Texstar Construction Corporation, and (b) a judgment of the same court (Tanenbaum, J. liability;  Floyd, J. damages), entered August 8, 1997, which, upon the granting of the plaintiffs' motion pursuant to CPLR 4404 to set aside the jury verdict on the issue of liability and for judgment in their favor as a matter of law, and upon a jury verdict on the issue of damages, is in favor of the plaintiff Lloyd Anderson and against it in the principal sum of $570,000 and in favor of the plaintiff Edith Anderson and against it in the principal sum of $10,000, (2) the plaintiffs cross-appeal on the ground of inadequacy from so much of the same judgment as awarded the plaintiff Lloyd Anderson the principal sum of only $205,000 for past and future pain and suffering, the principal sum of $365,000 for past and future lost earnings, and awarded the plaintiff Edith Anderson the principal sum of only $10,000 for past lost services, and (3) the defendant Karnes Plumbing Corp. appeals from the same judgment.

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

ORDERED that the appeal by the defendant Karnes Plumbing Corp. is dismissed as it is not aggrieved by the judgment;  and it is further,

ORDERED that the judgment is reversed insofar as reviewed, on the law, with one bill of costs to the defendant Schul/Mar Construction Corp., the motion to set aside the verdict is denied, the verdict is reinstated, and the complaint is dismissed insofar as asserted against the defendant Schul/Mar Construction Corp.

The appeal from the intermediate 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, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a][1] ).

The injured plaintiff, an employee at a construction worksite of which the defendant Schul/Mar Construction Corp. (hereinafter Schul/Mar) was the owner and general contractor, fell to the ground and was injured as he was descending a ladder that was set on a very rough surface.   After trial, a jury rendered a verdict in favor of the defendant on the issue of liability, determining that although the ladder was not properly secured, it did not move in any way so as to be a substantial factor in causing the injured plaintiff to fall.   The trial court granted the plaintiffs' motion pursuant to CPLR 4401 to set aside the verdict and for judgment in their favor as a matter of law, on the issue of liability.   On appeal, Schul/Mar contends that the trial court erred in granting the plaintiffs' motion for judgment in their favor as a matter of law.   We agree.

 To set aside a verdict there must be a finding that there was no valid line of reasoning or permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Silvera v. Agent Executive, 226 A.D.2d 361, 640 N.Y.S.2d 779;  Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).   Here, there was sufficient evidence in the record to support the conclusion reached by the jury that the improper placement of the ladder was not a proximate cause of the injured plaintiff's injury.   One of the employees at the worksite testified that he observed the injured plaintiff descend the ladder with coffee and a donut in hand, and as he was going down the ladder the injured plaintiff “misfooted” and fell backwards.   In our view, this evidence supports the jury's conclusion, and the trial court erred in granting judgment as a matter of law in favor of the plaintiffs and against Schul/Mar as a matter of law.   Accordingly, the complaint is dismissed insofar as asserted against the defendant Schul/Mar Construction Corp.

The parties' remaining contentions are academic.

MEMORANDUM BY THE COURT.

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