Lopez v.

• Decision Date: 24 December 2014
• Citation: 2014 N.Y. Slip Op. 08963,123 A.D.3d 982,999 N.Y.S.2d 848
• Parties: Rafael D. LOPEZ, respondent, v. NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., appellants.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 982

999 N.Y.S.2d 848

2014 N.Y. Slip Op. 08963

Rafael D. LOPEZ, respondent,

v.NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., appellants.

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

Dec. 24, 2014

Affirmed as modified. Fabiani Cohen & Hall, LLP (Mauro Lilling Naparty, LLP, Woodbury, N.Y. [Matthew W. Naparty, Timothy J. O'Shaughnessy, and Anthony DeStefano], of counsel), for appellants.

Block O'Toole & Murphy (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac], of counsel), for respondent.

Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (David C. Zegarelli of counsel), for former defendant Navillus Contracting, Inc.

THOMAS A. DICKERSON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (Knipel, J.), entered February 27, 2013, which, upon an order of the same court (Rothenberg, J.) dated October 28, 2010, inter alia, granting that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6), and, in effect, denying those branches of their motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6), and upon a jury verdict in favor of the plaintiff and against them on the issue of damages awarding the plaintiff the principal sums of $2,000,000 for past pain and suffering, $123,519 for past lost income, $162,927.67 for past medical expenses, $3,000,000 for future pain and suffering, $400,000 for future lost income, and $1,107,434.50 for future medical expenses, and upon an order of the same court (Knipel, J.) dated July 31, 2012, inter alia, granting that branch of their motion which was pursuant to CPLR 4404(a) for a new trial on the issue of damages for future pain and suffering unless the plaintiff stipulated to reduce the award for future pain and suffering from the principal sum of $3,000,000 to the principal sum of $1,500,000, and denying those branches of their motion pursuant to CPLR 4404(a) which were for a new trial on the issue of comparative negligence and to set aside as excessive so much of the jury verdict as awarded the plaintiff the principal sums of $2,000,000 for past pain and suffering and $3,000,000 for future pain and suffering, and upon the plaintiff's stipulation to reduce the award for future pain and suffering from the principal sum of $3,000,000 to the principal sum of $1,500,000, is in favor of the plaintiff and against them in the principal sums of $2,000,000 for past pain and suffering, $123,519 for past lost income, $162,927.67 for past medical expenses, $1,500,000 for future pain and suffering, $400,000 for future lost income, and $1,107,434.50 for future medical expenses.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof awarding the plaintiff the principal sum of $1,500,000 for future pain and suffering; as so modified, the judgment is affirmed, without costs or disbursements, that branch of the defendants' motion pursuant to CPLR 4404(a) which was to set aside so much of the jury verdict as awarded the plaintiff the principal sum of $3,000,000 for future pain and suffering is denied, so much of the jury verdict as awarded the plaintiff the principal sum of $3,000,000 for future pain and suffering is reinstated, the order dated July 31, 2012, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate amended judgment.

The plaintiff was injured when he fell backward and was impaled by an uncapped piece of a vertical rebar while working on the construction of an electrical building at the Newtown Creek Wastewater Treatment Plant. The facility was owned by the City of New York and managed by the New York City Department of Environmental Protection (hereinafter the defendants). The rebar that impaled the plaintiff's body caused extensive injuries, which necessitated multiple hospitalizations and several surgical procedures. The plaintiff also sustained a herniated disc and underwent spinal fusion surgery, physical therapy, and injections to alleviate pain. The plaintiff's experts opined, inter alia, that as a result of the accident, the plaintiff's physical condition would continue to deteriorate, that he was expected to need additional surgery, and that he would require ongoing treatment for the rest of his life.

Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed ( see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502, 601 N.Y.S.2d 49, 618 N.E.2d 82; Brownrigg v. New York City Hous. Auth., 119 A.D.3d 504, 990 N.Y.S.2d 34). The provision requires owners and contractors to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor ( see Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82). The particular safety rule or regulation relied upon by a plaintiff must mandate compliance with concrete specifications, and not simply set forth general safety standards ( see Misicki v. Caradonna, 12 N.Y.3d at 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 504–505, 601 N.Y.S.2d 49, 618 N.E.2d 82). Comparative negligence is a valid defense to a Labor Law § 241(6) cause of action ( see Misicki v. Caradonna, 12 N.Y.3d at 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213; Long v. Forest–Fehlhaber, 55 N.Y.2d 154, 161, 448 N.Y.S.2d 132, 433 N.E.2d 115; Riffo–Velozo v. Village of Scarsdale, 68 A.D.3d 839, 891 N.Y.S.2d 418).

Here, the cause of action alleging a violation of Labor Law § 241(6) was predicated on Industrial Code § 23–1.7(e)(2) (12 NYCRR 23–1.7[e] [2] ), which provides that “floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed” (12 NYCRR 23–1.7[e][2] ). Industrial Code § 23–1.7(e)(2) (12 NYCRR 23.17[e][2] ) is sufficiently specific to support a cause of action to recover damages pursuant to Labor Law § 241(6) ( see White v. Village of Port Chester, 92 A.D.3d 872, 877, 940 N.Y.S.2d 94; Lane v. Fratello Constr. Co., 52 A.D.3d 575, 576, 860 N.Y.S.2d 177). However, it has no application where the object that caused the plaintiff's injury was an integral part of the work...