Zapata v. Yugo J&V, LLC

• Decision Date: 07 May 2020
• Docket Number: 527621
• Citation: 123 N.Y.S.3d 275,183 A.D.3d 956
• Parties: Walberto ZAPATA et al., Respondents, v. YUGO J & V, LLC, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 956

123 N.Y.S.3d 275

Walberto ZAPATA et al., Respondents,

v.YUGO J & V, LLC, Appellant, et al., Defendant.

527621

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

Calendar Date: February 18, 2020

Decided and Entered: May 7, 2020

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from a judgment of the Supreme Court (Schick, J.), entered August 1, 2018 in Sullivan County, upon a verdict rendered in favor of plaintiffs.

In 2009, defendant John Nikic purchased a four-unit apartment building located in the Town of Fallsburg, Sullivan County for the sum of $20,000. In 2010, Nikic transferred ownership of the property to defendant Yugo J & V, LLC (hereinafter Yugo), whose members were Nikic and a friend. In March 2014, plaintiffs were injured when, after visiting a friend at the property, a second-floor deck they were on collapsed, causing them to fall approximately 15 feet to the ground. Plaintiffs thereafter commenced this negligence action against defendants to recover damages for their injuries. Following a bifurcated trial solely on the issue of liability, a jury returned a verdict in favor of plaintiffs, finding Yugo 100% liable.¹ Following a second trial on the issue of damages, the jury awarded plaintiff Walberto Zapata $100,000 for past pain and suffering, $150,000 for future pain and suffering over a period of 25 years, $123,000 for medical expenses and $25,000 for loss of consortium. The jury awarded plaintiff Joanne Zapata $200,000 for past pain and suffering, $200,000 for future pain and suffering over a period of 25 years, $288,000 for medical expenses and $50,000 for loss of consortium. Yugo appeals.

Yugo contends that the jury's verdict was not supported by the weight of the evidence. We disagree. "A verdict may be successfully challenged as against the weight of the evidence if it can be shown that a preponderance of the proof presented at trial so strongly favored [the losing party's] case that a contrary verdict could not have been reached upon any fair interpretation of that evidence" ( Todt v. Schroon Riv. Campsite, 281 A.D.2d 782, 782, 722 N.Y.S.2d 287 [2001] [internal quotation marks and citations omitted]; see Killon v. Parrotta, 28 N.Y.3d 101, 107, 42 N.Y.S.3d 70, 65 N.E.3d 41 [2016] ; Johnstone v. First Class Mgt. of N. Y., LLC, 138 A.D.3d 1222, 1223, 30 N.Y.S.3d 358 [2016] ). Here, even assuming, without deciding, that Yugo did not have actual or constructive knowledge of the defective nature of the deck, Supreme Court charged the jury with, among other charges, the doctrine of res ipsa loquitur.² Res ipsa loquitur means "the thing speaks for itself" ( Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 496, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997] [internal quotation marks and citation omitted] ), and the doctrine permits a jury, in certain circumstances, to "infer negligence merely from the happening of an event and the defendant's relation to it" ( id. at 494, 655 N.Y.S.2d 844, 678 N.E.2d 456 ; see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226–227, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986] ). "To be entitled to a res ipsa loquitur jury charge, a plaintiff must establish (1) that the injurious event is of a kind that ordinarily does not occur in the absence of someone's negligence, (2) that the event was caused by an agency or instrumentality within the exclusive control of the defendant and (3) that the event was not due to any voluntary action or contribution on the part of the plaintiff" ( Elsawi v. Saratoga Springs City Sch. Dist., 179 A.D.3d 1186, 1187, 114 N.Y.S.3d 526 [2020] [internal quotation marks and citations omitted] ).

Here, neither plaintiffs nor Yugo proffered any explanation as to why the deck collapsed; however, there is no requirement that the specific cause of an accident be established to invoke the doctrine (see Abbott v. Page Airways, 23 N.Y.2d 502, 512–513, 297 N.Y.S.2d 713, 245 N.E.2d 388 [1969] ; Elsawi v. Saratoga Springs City Sch. Dist., 179 A.D.3d at 1188, 114 N.Y.S.3d 526 ). As relevant here, common experience informs us that a deck being put to its regular and intended use does not ordinarily collapse in the absence of negligence and, given that no credible evidence was set forth demonstrating that plaintiffs were contributorily negligent in causing the collapse, we find that the first and third prongs of the doctrine were readily established (see Elsawi v. Saratoga Springs City Sch. Dist., 179 A.D.3d at 1187, 114 N.Y.S.3d 526 ; Dawson v. National Amusements, 259 A.D.2d 329, 330–331, 687 N.Y.S.2d 19 [1999] Finocchio v. Crest Hollow Club at Woodbury, 184 A.D.2d 491, 492–493, 584 N.Y.S.2d 201 [1992] ; see generally Kambat v. St. Francis Hosp., 89 N.Y.2d at 495, 655 N.Y.S.2d 844, 678 N.E.2d 456 ). With respect to the second prong, exclusive control, plaintiffs were not required to "eliminate every alternative explanation for the [deck collapse], but only to demonstrate that the likelihood of causes other than [Yugo's] negligence is so reduced that the greater probability lies at [Yugo's] door, rendering it more likely than not that the injury was caused by [Yugo's] negligence" ( Norton v. Albany County Airport Auth., 52 A.D.3d 871, 875, 859 N.Y.S.2d 296 [2008] [internal quotation marks and citations omitted]; see Elsawi v. Saratoga Springs City Sch. Dist., 179 A.D.3d at 1188, 114 N.Y.S.3d 526 ).

The evidence at trial established that, on the evening in question, plaintiffs were celebrating their wedding anniversary and had been visiting a friend who resided in one of the two second-floor apartments within the subject building. As plaintiffs exited the second-floor apartment, they stepped out onto the second-story deck – the only ingress and egress to the second-story apartments – and the deck collapsed beneath them, causing them to fall 15 feet onto the concrete pad below.

The deck had been under the care and control of Yugo since 2010, when it acquired title to the property. Nikic testified that he was the sole person responsible for the maintenance and inspection of the property and "continuously checked" it between 2009, when he first purchased it, through the time of the accident.³ Nikic acknowledged that he never performed any maintenance on the deck during this time period and never saw "any metal joist hangers underneath the deck supporting it." Thus, although no testimony was offered regarding the specific cause of the deck collapse, given the evidence introduced at trial – which included postaccident photographs of the deck – the issue was ultimately one of fact for the jury to decide, and, under the circumstances, the jury could reasonably have determined that Yugo exercised exclusive control over the deck such that the elements of the doctrine of res ipsa loquitur were satisfied (see Elsawi v. Saratoga Springs City Sch. Dist., 179 A.D.3d at 1188, 114 N.Y.S.3d 526 ; Mejia v. Delgado, 160 A.D.3d 588, 588, 75 N.Y.S.3d 14 [2018] ; see also Marinaro v. Reynolds, 152 A.D.3d 659, 661–662, 59 N.Y.S.3d 87 [2017] ; Herbst v. Lakewood Shores Condominium Assn., 112 A.D.3d 1373, 1375, 978 N.Y.S.2d 519 [2013] ; compare Richardson v. Simone, 275 A.D.2d 576, 578, 712 N.Y.S.2d 672 [2000] ). Accordingly, on the record before us, and deferring to the jury's credibility assessments, we do not find that "the evidence so preponderated in favor of [Yugo] 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, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] [internal quotation marks, brackets and citations omitted]; see Tyrell v. Pollak, 163 A.D.3d 1232, 1235, 80 N.Y.S.3d 706 [2018] ).

Turning to the issue of damages, we reject Yugo's contention that Supreme Court erred in not requiring expert testimony to prove plaintiffs' damages. Generally speaking, "expert testimony is appropriate when it serves to clarify an issue that is beyond the ken of the lay juror and calls for professional or technical knowledge" ( Payette v. Rockefeller Univ., 220 A.D.2d 69, 74, 643 N.Y.S.2d 79 [1996] ; see generally De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983] ). Here, there is no question that the injuries that plaintiffs' sustained were a direct result of the fall precipitated by the deck collapse (see Madsen v. Merola, 288 A.D.2d 520, 521, 732 N.Y.S.2d 150 [2001] ). Moreover, plaintiffs' testimony regarding the nature and permanency of their injuries, coupled with the medical records introduced into evidence, were not beyond the competence of plaintiffs or the ordinary experience and knowledge of a lay jury so as to require expert testimony to render an appropriate damages award (see Payette v. Rockefeller Univ., 220 A.D.2d at 74, 643 N.Y.S.2d 79 ; compare Razzaque v. Krakow Taxi, 238 A.D.2d 161, 162, 656 N.Y.S.2d 208 [1997] ).

We similarly reject Yugo's contention that the jury's award of damages was excessive. As relevant here, "a court may set aside a jury award of damages when that award deviates materially from what would be reasonable compensation" ( Greblewski v. Strong Health MCO, LLC, 161 A.D.3d 1336, 1339, 77 N.Y.S.3d 191 [2018] [internal quotation marks and citations omitted]; see CPLR 5501[c] ; DeMarco v. DeMarco, 154 A.D.3d 1226, 1228, 63 N.Y.S.3d 586 [2017] ). Initially, to the extent that Yugo challenges the award for past medical expenses to plaintiffs, Yugo's failure to include the relevant medical records and bills that were admitted as trial exhibits precludes this Court from engaging in meaningful and effective appellate review of this portion of the damages award (see CPLR 5526 ; Babayev v. Kreitzman, 168 A.D.3d 655, 656, 90 N.Y.S.3d 288 [2019] ; Coello v. Gonzalez, 96 A.D.3d 707, 707–708, 945 N.Y.S.2d 575 [2012] ).⁴ With regard to the remaining damages' claims, the evidence at the trial established that, as a result of the deck collapse, Walberto Zapata suffered, among other injuries, various "burst fractures" in his spine,...