Colonno v. Executive I Associates

• Citation: 228 A.D.2d 859,644 N.Y.S.2d 105
• Parties: Marlene COLONNO et al., Respondents, v. EXECUTIVE I ASSOCIATES et al., Defendants, and Lynmark Construction and Management Company Inc., Appellant.
• Decision Date: 13 June 1996
• Court: New York Supreme Court Appellate Division

Page 105

644 N.Y.S.2d 105

228 A.D.2d 859

Marlene COLONNO et al., Respondents, v. EXECUTIVE I ASSOCIATES et al., Defendants, and Lynmark Construction and Management Company Inc., Appellant.

Supreme Court, Appellate Division,

Third Department.

June 13, 1996.

Voute, Lohrfink, Magro & Collins (Stephen P. Falvey, of counsel), White Plains, for appellant.

Weiner & Gall (Richard J. Weiner, of counsel), Nanuet, for respondents.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

PETERS, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Miller, J.), entered March 14, 1995 in Rockland County, upon a verdict rendered in favor of plaintiffs.

In this personal injury action, plaintiff Marlene Colonno (hereinafter plaintiff), working as a sales representative with F.M. Howell and Company (hereinafter Howell), contends that on January 5, 1989 while in her office, she was injured when the heel of her shoe went through the carpet, lodged in a crack in the underlying concrete floor, and propelled her forward, causing her to lose her balance. In an attempt to prevent the fall, plaintiff grabbed hold of the desks on each side of her and felt an immediate pain across her back.

Since the accident, plaintiff has consulted with numerous physicians who performed MRIs, all of which indicate that she suffers from a herniated disk. She has unsuccessfully treated such injury with physical therapy and although advised to undergo back surgery, has not yet pursued it.

After the injury, plaintiff did not complete another full day of work at Howell and was eventually terminated. Testimony revealed that she was physically unable to resume any work until May 1994 when she took a position as a sales representative with Sentag Corporation, a denture manufacturer. She was terminated from that position in November 1994 after her recuperation from an October 1994 auto accident. She contends that she continues to suffer the effects of the back injury.

In June 1991, plaintiff and her husband, derivatively, commenced this action against numerous defendants including Executive I Associates, a partnership, Lynmark Construction and Management Company Inc., the general contractor for the construction of the Howell office space, and PRV Concrete Inc., the subcontractor hired by Lynmark to pour the concrete floor. ¹

After trial, the jury found that Lynmark was 70% liable and PRV 30% liable for plaintiff's injuries, and awarded plaintiff $125,000 for lost wages, $25,000 for pain and suffering, and $50,000 for future pain and suffering, with no award on the derivative claim. After the denial of various posttrial motions, Lynmark appeals.

Lynmark contends that it cannot be held liable for plaintiff's injuries since it never received either actual or constructive notice of the defective condition of the concrete floor. We disagree. With the cause of action premised not upon inadequate maintenance but, rather, negligence in the initial construction of the floor, the principle emanating from strict products liability law (see, Inman v. Binghamton Housing Auth., 3 N.Y.2d 137, 144-145, 164 N.Y.S.2d 699, 143 N.E.2d 895) now holds contractors to a "general standard of reasonable care for the protection of third persons who may be foreseeably endangered by the contractor's negligence even after acceptance of the work" (2B Warren's Negligence, New York Negligence--Parties Negligent, Part 1, § 34.07[2], at 136). Accordingly, there was no need to establish Lynmark's actual or constructive notice of the defect in order for the jury to impose liability upon it as the general contractor (see, Inman v. Binghamton Housing Auth., supra, at 144-145, 164 N.Y.S.2d 699, 143 N.E.2d 895; Roberts v. MacFarland Constr. Cos., 102 A.D.2d 981, 477 N.Y.S.2d 786).

We further find the jury's verdict of negligence to be supported by legally sufficient evidence. Noting that a verdict may be successfully challenged on this basis if "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145), we find ample evidence from which the jury could have concluded that the crack in...