37 Misc.3d 1206(A), 2012-51905, Konstantin v. 630 Third Ave. Associates

Citation961 N.Y.S.2d 358,37 Misc.3d 1206(A)
Docket Number2012-51905
Date20 September 2012
PartiesDavid KONSTANTIN, Plaintiffs, v. 630 THIRD AVENUE ASSOCIATES et al., Defendants. No. 190134/10.

Page 1206(A)

37 Misc.3d 1206(A)

961 N.Y.S.2d 358

David KONSTANTIN, Plaintiffs,

v.

630 THIRD AVENUE ASSOCIATES et al., Defendants.

No. 190134/10.

No. 2012-51905

Supreme Court of New York, New York County

September 20, 2012

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Belluck & Fox, LLP, New York, for Plaintiff. McGivney & Kluger, P.C., New York, for Defendant Tishman Liquidating Co.

JOAN A. MADDEN, J.

Defendant Tishman Liquidating Corporation (" TLC" ) moves pursuant to CPLR 4404 for an order setting aside the verdict entered against it on August 16, 2011, and directing that judgment be entered in its favor or, in the alternative, reducing the verdict. Plaintiff opposes the motion.

Plaintiff David Konstantin alleges that he was exposed to asbestos when he worked as a carpenter from 1975 to 1977, during new construction at 622 Third Avenue and the Olympic Towers, and that, as a result of this exposure, he developed mesothelioma of the tunica vaginalis. An entity known as Tishman Realty and Construction Co., Inc. (" Tishman Realty" ), which is now defunct, was the general contractor at both sites. During the trial, this court found that TLC was the successor to Tishman Realty and therefore TLC was potentially liable for claims asserted against it based on Tishman Realty's actions. 1

The jury found that a joint compound used at the sites contained asbestos; that the asbestos was an unsafe product; that in the exercise of reasonable care TLC knew or should have known that the joint compound containing asbestos was being used at the sites; that Mr. Kostantin was exposed to asbestos at the sites; and that the exposure to asbestos was the cause of his injury. The jury further found that TLC exercised supervisory control over the drywall subcontractors using the asbestos containing joint compound; that TLC knew or should have known that its drywall subcontractors were using unsafe sanding methods with respect to the asbestos containing joint compound; that TLC failed to use reasonable care to prevent or correct the use of the asbestos containing joint compound, or to prevent and correct the unsafe sanding methods; and that these failures were a substantial factor in causing Mr. Konstantin's injury.

Moreover, as to the actions of TLC's employees, the jury also found that TLC created an unsafe condition by permitting its employees to sweep asbestos containing joint compound; that the failure to use reasonable care in sweeping was a substantial factor in causing Mr. Konstantin's injury; and that TLC acted with reckless disregard for the safety of Mr. Konstantin.

The jury awarded plaintiff $7 million for past pain and suffering; $12 million for future pain and suffering; $64,832 for past lost earnings; and $485,325 for future lost earnings, and apportioned 76% of the fault to TLC. Other entities on the verdict sheet, Georgia Pacific, Kaiser Gypsum and United States Gypsum, were found responsible based on evidence that they manufactured the joint compound containing asbestos during the relevant periods; the jury found that they were each 8% at fault.

TLC now moves to set aside the verdict on various grounds. CPLR 4404(a) provides that " 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 ... where the verdict is contrary to the weight of evidence ... [or] in the interest of justice." The standard for setting aside a verdict and entering judgment for the moving party as a matter of law is whether " there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men [and women] to the conclusion reached by the jury on the basis of the evidence presented at trial. The criteria to be applied in making this assessment are essentially those required of a Trial Judge asked to direct a verdict." Cohen v. Hallmark Cards, Inc, 45 N.Y.2d 493, 499 (1978). However, " in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus, a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence." Id.

The standard used in determining a motion to set aside a verdict as against the weight of evidence is " whether the evidence so preponderated in favor of [the moving party] that the verdict could not have been reached on any fair interpretation of the evidence" Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746 (1995) (quoting Moffatt v. Moffatt, 86 A.D.2d 864 [2nd Dept 1982], aff'd, 62 N.Y.2d 875 [1984] ). This does not involve an interpretation of law, but rather " a discretionary balancing of many factors." Cohen v. Hallmark Cards, supra at 499.

I. TLC'S ENTITLEMENT TO A DIRECTED VERDICT AS TO LIABILITY

TLC argues that the court should have granted its motion for a directed verdict following the completion of plaintiffs' case as: (i) it was impossible for the jury to determine, as a matter of fact, that Mr. Konstantin was exposed to asbestos-containing joint compound from the work of subcontractors, citing Matter of New York County Asbestos Litigation (Perdicaro), 52 A.D.3d 300 (1st Dept 2008); (ii) there was no evidence that TLC had any knowledge that the joint compound at the work site contained asbestos, and plaintiff's expert testimony did not establish such knowledge; (iii) plaintiff presented no evidence establishing that TLC's predecessor supervised and controlled the workplace; and (iv) plaintiff failed to proffer expert testimony establishing site safety requirements.

With respect to the first issue, it cannot said that there was no valid line of reasoning or permissible inferences supporting the jury's finding that the joint compound at the work site contained asbestos. At trial, Mr. Konstantin identified Georgia Pacific, Kaiser Gypsum and United States Gypsum as the makers of the joint compound at the two sites (T. at 836). He stated that these products came in five-gallon pails and were pre-mixed (T. at 684-86, 842). The 1990 Federal Register, which required manufacturers to report asbestos-containing products to the Environmental Protection Agency (" EPA" ) ( See Exhibit Q to TLC's motion), identified all three of these entities' pre-mixed joint compounds, referred to as " plasters," as containing asbestos during Mr. Konstantin's period of exposure. (T. at 2641-42). Moreover, plaintiffs' expert industrial hygienist, Richard Hatfield, testified that he tested the brands of joint compound that Mr. Konstatin identified and that they contained asbestos, and that asbestos in joint compounds was not phased out until the mid-1970's (T. at 1576-78; 1770-71). There was also evidence that a study of joint compounds done in 1974 and published in 1975 revealed that nine out of ten commercially available joint compounds contained asbestos in 1974 (T. at 1044-45). Furthermore, there was no evidence establishing that the joint compounds used at the sites were part of the 10% not containing asbestos.

Contrary to TLC's position, Matter of New York County Asbestos Litigation (Perdicaro), id, is not dispositive here. In Perdicaro, the Appellate Division, First Department reversed the trial court's denial of summary judgment, finding that there was no evidence that plaintiff was exposed to asbestos when installing insulation on new equipment. In this connection, the court noted that the insulation material at issue " often contained fire/heat resistant components other than asbestos," and that evidence that a subcontractor on the project ordered certain asbestos containing materials did not raise a factual question as there was no testimony from plaintiff that he ever observed those materials used on the site. Id at 301. In contrast, in this case, Mr. Konstatin testified that he observed the joint compounds manufactured by the Georgia Pacific, Kaiser Gypsum and United States Gypsum at the work sites. When this testimony is considered together with the evidence that during the relevant time period, the three entities manufactured asbestos containing joint compound, there was sufficient evidence permitting the jury to draw an inference that Mr. Konstatin was exposed to asbestos.

As for whether the jury rationally found that TLC knew that the joint compounds at the work sites contained asbestos, plaintiffs can establish TLC's liability by demonstrating either that TLC knew, or that it should have known, of the unsafe condition. See N.Y. PJI 2:216, Vol. 1B at 1089 (3d ed); (T. at 4081-86). Here, circumstantial evidence was presented from which the jury could have inferred that TLC knew, or that it should have known, that asbestos was used at the sites during the relevant periods and that it was unsafe. In this connection, Charles A. DeBenedettis, the project site superintendent for Tishman Realty during the relevant period, testified that plasters containing asbestos were generally used at work sites by subcontractors employed by TLC's predecessor (T. at 2011-2012). He also testified to a general awareness throughout the construction industry in the 1970's, and at TLC, of the dangers of asbestos and that such an awareness was primarily based on information published in technical trade journals (T. at 2011-2013). In addition, there was evidence that in 1974, OSHA published an alert to the construction industry warning of the dangers of asbestos (T. at 1210-1221). Furthermore, plaintiff was not required to present expert testimony to prove that TLC knew asbestos was used at the sites and that it was dangerous.

TLC also argues that there was no evidence from which the jury could have rationally inferred that it supervised and controlled either the drywall subcontractors sanding the joint compound...

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