Gonnerman v. Huddleston

• Decision Date: 23 November 2010
• Parties: Scott GONNERMAN, appellant, v. Laura HUDDLESTON, et al., defendants, Lighting Maintenance, Inc., respondent.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 670 78 A.D.3d 993 Scott GONNERMAN, appellant, v. Laura HUDDLESTON, et al., defendants, Lighting Maintenance, Inc., respondent. Supreme Court, Appellate Division, Second Department, New York. Nov. 23, 2010.

Steven Cohn, P.C., Carle Place, N.Y. (Edward G. McCabe and Susan Dantzig of counsel), for appellant.

Baxter, Smith & Shapiro, P.C., White Plains, N.Y. (Arthur J. Smith and Sim R. Shapiro of counsel), for respondent.

PETER B. SKELOS, J.P., STEVEN W. FISHER, FRED T. SANTUCCI, and JOHN M. LEVENTHAL, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Galasso, J.), entered July 15, 2009, as, upon granting that branch of the motion of the defendant Lighting Maintenance, Inc., pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law dismissing the cause of action to recover damages based upon a violation of Labor Law § 241(6), and upon a jury verdict on the issue of liability, inter alia, finding the defendant Laura Huddleston 60% at fault and finding that the defendant Lighting Maintenance, Inc., was negligent, but that its negligence was not a substantial factor in causing the accident, is in favor of the defendant Lighting Maintenance, Inc., and against him dismissing the complaint insofar as asserted against that defendant.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendant Lighting Maintenance, Inc., and substituting therefor a provision dismissing the cause of actionto recover damages for negligence insofar as asserted against that defendant; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff payable by the defendant Lighting Maintenance, Inc., that branch of the motion of the defendant Lighting Maintenance, Inc., pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the cause of action to recover damages based upon a violation of Labor Law § 241(6) is denied, that cause of action is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for a new trial as to the defendant Lighting Maintenance, Inc., on the cause of action to recover damages based upon a violation of Labor Law § 241(6) and 12 NYCRR 23-1.29, for reapportionment of liability if necessary, and for the entry of an appropriate amended judgment thereafter.

On December 11, 2000, in connection with a construction project to improve lighting on the Meadowbrook State Parkway and the Loop Parkway, the plaintiff, a truckdriver, delivered lightpoles to a staging area for the project. The staging area, which was located on the left side of an exit ramp that curved to the right, was used for, among other things, the assembly of the delivered lighting fixtures. The components of the completed lighting equipment consisted of the poles that the plaintiff delivered, as well as an arm, the actual lighting fixture, wiring, and a decorative attachment. After the components were fully assembled, the completed equipmentwould be transported to the location of their installation along the highways. As the plaintiff's truck was being unloaded and the plaintiff stood nearby, the defendant Laura Huddleston, who was driving on the exit ramp, lost control of her vehicle, and the vehicle entered the staging area and struck the plaintiff, injuring him. The plaintiff commenced this action against Huddleston, the project engineer, Maitra Associates, P.C. (hereinafter Maitra), and the contractor, Lighting Maintenance, Inc. (hereinafter LMI). The plaintiff asserted causes of action alleging, inter alia, common-law negligence and, against LMI, to recover damages based upon a violation of Labor Law § 241(6). The cause of action to recover damages based upon a violation of Labor Law § 241(6) was predicated on a violation of Industrial Code section 23-1.29 (see 12 NYCRR 23-1.29). The case proceeded to trial and, at the close of the plaintiff's case, LMI moved, inter alia, pursuant to CPLR 4401 for judgment as a matter of law dismissing the plaintiff's cause of action to recover damages based upon a violation of Labor Law § 241(6). The trial court reserved decision and later granted the motion. Additionally, the trial court refused to instruct the jury on the...