Gregware v. City of N.Y.

• Decision Date: 04 August 2015
• Docket Number: 108013/07, 14970.
• Citation: 2015 N.Y. Slip Op. 06408,132 A.D.3d 51,15 N.Y.S.3d 21
• Parties: James GREGWARE, et al., Plaintiffs–Respondents, v. The CITY OF NEW YORK, Defendant–Appellant, Burtis Construction Co. Inc., Defendant–Appellant–Respondent, Abelardo Da–Silva, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 51

15 N.Y.S.3d 21

2015 N.Y. Slip Op. 06408

James GREGWARE, et al., Plaintiffs–Respondents

v. The CITY OF NEW YORK, Defendant–AppellantBurtis Construction Co. Inc., Defendant–Appellant–RespondentAbelardo Da–Silva, Defendant–Respondent.

108013/07, 14970.

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

Aug. 4, 2015.

Simpson Thacher & Bartlett LLP, New York (George S. Wang, Shannon K. McGovern and Jamie H. Somoza of counsel), Corporation counsel New York (Zachary W. Carter of counsel), for appellant.

Mauro Lilling Naparty LLP, Woodbury (Deidre E. Tracey and Matthew W. Naparty of counsel), for appellant-respondent.

Gair, Gair, Conason, Steigman, MacKauf, Bloom & Rubinowitz, New York (Ben Rubinowitz and Richard M. Steigman of counsel), for Gregware respondents.

Thomas M. Bona, P.C., White Plains (James C. Miller and Thomas M. Bona of counsel), for Abelardo Da–Silva, respondent.

PETER TOM, J.P., JOHN W. SWEENY, JR., SALLIE MANZANET–DANIELS, DARCEL D. CLARK, BARBARA R. KAPNICK, JJ.

Opinion

MANZANET–DANIELS, J.

This appeal arises from a judgment entered in favor of plaintiffs following a multivehicle collision on the West Side Highway. The jury determined that the City of New York and Burtis Construction Co. were negligent and had acted with reckless disregard for the safety of others in setting up an unsafe lane closure on the West Side Highway for a short-term construction project, and that their negligence or recklessness was a substantial factor in causing plaintiff James Gregware's significant and debilitating injuries.

On this appeal, we consider, among other issues, whether plaintiffs' counsel's remarks during summation tainted the proceedings to such an extent that the City was deprived of a fair trial.¹ We also address whether the apportionment of damages as between the City and Burtis was supported by the evidence. While the tenor of counsel's remarks was regrettable, we do not believe that the cumulative effect of the remarks deprived defendant of a fair trial. Nonetheless, because we find that the 65%–35% apportionment of liability as between the City and Burtis is against the weight of the evidence, we remand for a new trial solely as to the apportionment of damages between the City and Burtis.

The Accident

The City, which owns the West Side Highway, has a nondelegable duty to ensure that it is maintained in a safe condition. The City hired Burtis to repair a seam in the roadway in the northbound lanes of travel. The contract between the City and Burtis contained a plan for the Maintenance and Protection of Traffic (MPT). The MPT governed the manner in which the work was to be performed and the safety measures to be undertaken for closing lanes of traffic. The MPT stated that “[a]ll maintenance and protection of traffic work shall conform to the New York State Manual of Uniform Traffic Control Devices [MUTCD] except as modified by the plans and/or the proposal.”

At the time of the accident, the left and center lanes of the northbound side of the West Side Highway were closed, leaving only the right lane available for passing traffic. Plaintiffs' expert testified that the manner in which the lanes had been closed was “totally inadequate,” and a “severe deviation from the standards.” Using a diagram from the MPT, he described the minimum standards for a two-lane closure on a three-lane highway: multiple and specific signs of the impending lane closures prior to the first barrel, including “roadwork one mile,” “left two lanes closed one half mile,” “left two lanes closed 1500 feet,” and an arrow board directing drivers to merge; additional signs as the tapered and staggered lane closure proceeds; and lighted barrels marking the lane closures, with the first barrel appearing 3,630 feet before the expansion joint under repair. Plaintiffs' expert further testified that because defendants failed to comply with these standards, drivers were forced to suddenly, and without warning, merge to the right lane.

On May 20, 2006, at approximately 1:00 a.m., a two-car accident occurred approximately 200 feet south of the taper. No changes to the lane closure set up were made following the accident, and work resumed on the roadway.

At approximately 3:00 a.m., while the left two lanes of traffic were still closed, a five-car pileup occurred in the area of the earlier accident. A taxi operated by Mohammad Kamrul Hassan that was merging from the left to center lane was rear-ended by a vehicle in the left lane driven by Omar Albahri. The Hassan vehicle in turn struck the car in front of him in the center lane, driven by Romulo Romero–Valazero. Following the collisions, the motorists exited their respective vehicles and were standing in the roadway. Plaintiff Gregware, coming over a blind hill in the road, tried to stop but rear-ended the Albahri vehicle. Plaintiff exited his vehicle to exchange insurance information, and was struck and knocked to the ground when the vehicle driven by defendant Abelardo Da–Silva rear-ended his vehicle.

Plaintiff's Injuries

Plaintiff James Gregware suffered severe and debilitating injuries to his legs, knees, pelvis, shoulder, and ribs, including fractures of the tibia, fibula, and pelvis, and numerous tears of the ligaments supporting both knees, requiring that he spend three weeks in the trauma unit at St. Vincent's Hospital. Plaintiff underwent the first of five surgeries to stabilize his knees on May 30, 2006. On June 5, 2006, he was transferred to Warburg Nursing Home for rehabilitation. Following removal of the casts, his legs were swollen and severely atrophied.

Plaintiff was fitted with braces and had to relearn how to walk. Two physical therapists worked on his knees on a daily basis to break up scar tissue formation. After discharge from the nursing home, on August 12, 2006, plaintiff commenced outpatient physical therapy for three hour sessions three times per week.

Plaintiff underwent further surgery on his left knee on January 22, 2007, and on his right knee on February 5, 2009. On May 23, 2011, he underwent a further surgery on the left knee. Following each surgery, he was required to resume use of braces and to re-start physical therapy.

Plaintiff, who remains in considerable pain, requires anti-inflammatories and, at times, narcotic medication. His knees remain unstable and he will eventually develop osteoarthritis. Over the course of his life, he will require four total knee replacement surgeries, two on each leg. Plaintiff, 41 years of age at the time of the accident, will suffer pain in his knees for the rest of his life due to the extent of the injuries.

The City's Witnesses.

Officer Joseph Pagano and Dr. Ali Sadegh testified on behalf of the City. At Pagano's EBTs, four and five years post-accident, he professed to having no independent memory whatsoever of the accident or the surrounding circumstances. Pagano could not recall, inter alia, whether he had interviewed any of the drivers or passengers of the vehicles, whether he had spoken to or canvassed the area for any other witnesses, whether there was ongoing construction in the vicinity of the accident, whether any roadway lanes were closed at the time, whether there were any cones or video messaging boards, whether any photographs or measurements had been taken, or whether any of the injured parties had been outside of their vehicles at the time they were hit. When presented with his own memo book and asked if it refreshed his recollection of the accident or his investigation, he stated “no.”

Nonetheless, at trial, two years following his last EBT and seven years after the accident, Pagano was able to remember details concerning the accident. Not only did he purport to remember the accident itself, he remembered where he had parked his patrol car, and the distance from his vehicle to the accident scene. He testified as to the configuration of the vehicles after the accident and to having seen a construction sign near the accident.

He admitted that his memory at the time of his EBTs “was not as good,” explaining that review of documents and discussing the case “helped [him] recall information.” On cross, Pagano testified that he had a “clearer recollection” at trial than he had at the time of the EBT. He testified that he had met with counsel for the City approximately 5 times before trial and had visited the accident scene with counsel on two occasions. Defense counsel had shown him photos of the accident scene and “pointed things out.”

The only other live witness presented by the City was Dr. Ali Sadegh, a professor of mechanical engineering and an expert in accident reconstruction. Although Dr. Sadegh claimed to have sufficient knowledge in the field of medicine to provide the jury with certain medical opinions, including conclusions gleaned from reading X-rays and CT scans, he conceded that he had only audited one medical school course at Columbia University. He also professed to having learned how to read X-rays and CT scans from two courses he had taken with the Society of Automotive Engineers.

Plaintiff's Counsel's Summation

In the course of his 125–page summation, plaintiffs' counsel argued, inter alia, that the City and Burtis took “shortcuts” in setting up the construction project on the West Side Highway, resulting in several accidents including the one that had caused serious and debilitating injuries to plaintiff James Gregware. Counsel further argued that the City and Burtis had sought to avoid liability for their own negligence by blaming one another, as well as the other motorists involved in the accident.

Counsel noted that Officer Pagano professed to have no memory of the accident at his EBTs, yet claimed to remember the accident in detail during trial. He argued that it was implausible that Officer Pagano's memory had suddenly improved after the passage of seven years. He pointed out that Officer Pagano had met with the City's attorneys on five occasions, and stated, “It is infuriating to me that they...