Finocchi v. Live Nation Inc.

• Decision Date: 22 April 2022
• Docket Number: 267,CA 20-00692
• Citation: 204 A.D.3d 1432,167 N.Y.S.3d 280
• Parties: Carmen J. FINOCCHI, Jr., and Kim Elaine Finocchi, Plaintiffs-Appellants, v. LIVE NATION INC., and CPI Touring (Genesis-USA), LLC, Defendants-Respondents. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1432
167 N.Y.S.3d 280

Carmen J. FINOCCHI, Jr., and Kim Elaine Finocchi, Plaintiffs-Appellants,
v.
LIVE NATION INC., and CPI Touring (Genesis-USA), LLC, Defendants-Respondents. (Appeal No. 1.)

267
CA 20-00692

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

Entered: April 22, 2022

CONNORS LLP, BUFFALO (LAWLOR F. QUINLAN, III, OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

GOLDBERG SEGALLA LLP, BUFFALO, MAURO LILLING NAPARTY LLP, WOODBURY (ANTHONY F. DESTEFANO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby

204 A.D.3d 1432

ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the posttrial motion is granted, the verdict is set aside, the Labor Law § 240 (1) claim is reinstated, judgment on liability is granted to plaintiffs on that claim, and a new trial is granted on damages only.

167 N.Y.S.3d 282

204 A.D.3d 1433

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Carmen J. Finocchi, Jr. (plaintiff) when he was loading boxes of rigging equipment into a truck following a concert. After we determined on a prior appeal that there were triable issues of fact precluding summary judgment in defendants’ favor with respect to the Labor Law § 240 (1) claim ( Finocchi v. Live Nation Inc. , 141 A.D.3d 1092, 1094, 34 N.Y.S.3d 840 [4th Dept. 2016] ), the matter proceeded to a nonjury trial. Following that trial, Supreme Court dismissed the complaint on the ground that plaintiff's failure to use an appropriate safety device, i.e., a forklift, was the sole proximate cause of his injuries.

In appeal No. 1, plaintiffs appeal from the order and judgment dismissing their complaint. They contend that plaintiff's choice not to use a forklift cannot be deemed the sole proximate cause of his injuries, inasmuch as he did not forgo the available safety device "for no good reason" ( Gallagher v. New York Post , 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ). In appeal No. 2, plaintiffs appeal from the court's subsequent order that denied their motion to set aside the verdict pursuant to, inter alia, CPLR 4404 (b).

Initially, inasmuch as the appeal from the order and judgment in appeal No. 1 brings up for review the propriety of the order in appeal No. 2, we dismiss appeal No. 2 (see generally CPLR 5501 [a] [2] ; Benevolent & Protective Order of Elks of United States of Am. v. Creative Comfort Sys., Inc. , 192 A.D.3d 1608, 1608, 145 N.Y.S.3d 722 [4th Dept. 2021] ; Matter of State of New York v. Daniel J. , 180 A.D.3d 1347, 1348, 118 N.Y.S.3d 346 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 2020 WL 3422539 [2020] ).

With respect to appeal No. 1, we agree with plaintiffs that the court erred in denying their posttrial motion inasmuch as the court's determination that plaintiff's choice to forgo using a forklift was the sole proximate cause of the accident could not be reached under any fair interpretation of the evidence (see generally Burke v. Women Gynecology & Childbirth Assoc., P.C. , 195 A.D.3d 1393, 1394, 150 N.Y.S.3d 420 [4th Dept. 2021] ; Trimarco v. Data Treasury Corp. , 146 A.D.3d 1008, 1009, 46 N.Y.S.3d 640 [2d Dept. 2017] ; Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.] , 20 A.D.3d 168, 170, 796 N.Y.S.2d 503 [4th Dept. 2005] ).

"To establish a sole proximate cause defense, a defendant must demonstrate that the plaintiff had adequate safety devices available; that [the plaintiff] knew both that they were available and that he [or she] was expected to use them; that [the plaintiff] chose for no good reason not to do so; and that had [the plaintiff] not made...