Leto v. Amrex Chem. Co. Inc.

• Decision Date: 30 June 2011
• Citation: 85 A.D.3d 1509,2011 N.Y. Slip Op. 05600,926 N.Y.S.2d 697
• Parties: Joseph A. LETO et al., Respondents,v.AMREX CHEMICAL COMPANY, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1509
926 N.Y.S.2d 697
2011 N.Y. Slip Op. 05600

Joseph A. LETO et al., Respondents,
v.
AMREX CHEMICAL COMPANY, INC., Appellant.

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

June 30, 2011.

[926 N.Y.S.2d 699]

Shaub, Ahmuty, Citrin & Spratt, L.L.P., Lake Success (Steven J. Ahmuty, Jr., Timothy R. Capowski, Robert M. Ortiz, Gerard S. Rath of counsel), for appellant.Faraci Lange, L.L.P., Rochester (Stephen G. Schwarz of counsel), for respondents.Before: MERCURE, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ.MALONE JR., J.

[85 A.D.3d 1509] Appeals (1) from a judgment of the Supreme Court (Lebous, J.), entered June 15, 2010 in Broome County, upon a verdict rendered in favor of plaintiffs, and (2) from an order of said court, entered June 15, 2010 in Broome County, which, among other things, denied defendant's motion to set aside the verdict.

Plaintiff Joseph A. Leto (hereinafter plaintiff), a plumber, and his wife, derivatively, commenced this action to recover damages for respiratory injuries that plaintiff allegedly suffered as a result of a chemical spill that occurred while plaintiff was working in defendant's facility in October 2005. After defendant conceded negligence for the occurrence of the spill, a jury trial was held on the issues of causation and damages. The jury returned a verdict in favor of plaintiffs on the issue of causation and awarded damages totaling $2,511,150 for past and future pain and suffering, future lost earnings, and past and future medical expenses.¹ Defendant unsuccessfully moved to, among other things, set aside the verdict and strike or reduce certain damages awards, and judgment was subsequently entered in favor of plaintiffs. Defendant appeals from the order denying its postverdict motion and from the judgment.

Initially, defendant contends that a multitude of errors made by Supreme Court warrant a new trial. We disagree. Defendant first contends that plaintiffs'

[926 N.Y.S.2d 700]

counsel made various improper remarks during summation. However, because apparently neither party requested it, summation was not transcribed and, thus, we are unable to review defendant's contentions with respect thereto ( see Sabia v. National Fuel Gas Corp., 292 A.D.2d 807, 738 N.Y.S.2d 633 [2002]; Wilcox v. Morrow, 226 A.D.2d 1077, 1077–1078, 641 N.Y.S.2d 774 [1996] ). Moreover, we find no abuse of Supreme Court's discretion in denying defendant's motion for a new trial on this basis, as it was in the best position to assess whether defendant was prejudiced by the remarks of plaintiffs' counsel ( see e.g. Straub v. Yalamanchili, 58 A.D.3d 1050, 1051, 871 N.Y.S.2d 773 [2009]; Pyptiuk v. Kramer, 295 A.D.2d 768, 770, 744 N.Y.S.2d 519 [2002] ).

Next, we are not persuaded that defendant was prejudiced by [85 A.D.3d 1510] Supreme Court's dismissal of plaintiffs' claim for punitive damages at the close of proof, rather than earlier in the trial. Moreover, to the extent that defendant claims prejudice arising out of allegedly improper remarks about punitive damages by plaintiffs' counsel during summation, these are not reviewable for the reason stated above ( see Sabia v. National Fuel Gas Corp., 292 A.D.2d at 807, 738 N.Y.S.2d 633; Wilcox v. Morrow, 226 A.D.2d at 1077–1078, 641 N.Y.S.2d 774). Defendant also claims that Supreme Court erroneously denied its motion to strike the testimony of an expert environmental chemist on the basis that his testimony was speculative. However, the record reveals that the expert provided facts as to the properties of several chemicals utilized at defendant's facility and provided an opinion as to the combination and amounts of those that could create chlorine gas, which was the type of gas that could have caused plaintiff's respiratory injuries. Because this “opinion [was] based on established facts relevant to the controversy” ( Soulier v. Hughes, 119 A.D.2d 951, 952–953, 501 N.Y.S.2d 480 [1986] ), we find that the court did not err in refusing to strike it ( see Bulman v. P & R Enter., 17 A.D.3d 1139, 1140, 794 N.Y.S.2d 765 [2005] ).

Defendant next contends that Supreme Court improperly refused to give a spoliation charge and a toxic tort charge to the jury. Although defendant contends that a spoliation charge was...