Maiorani v. Adesa Corp..

• Decision Date: 05 April 2011
• Citation: 2011 N.Y. Slip Op. 02850,83 A.D.3d 669,921 N.Y.S.2d 255
• Parties: John MAIORANI, appellant,v.ADESA CORPORATION, respondent.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 669
921 N.Y.S.2d 255
2011 N.Y. Slip Op. 02850

John MAIORANI, appellant,
v.
ADESA CORPORATION, respondent.

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

April 5, 2011.

[921 N.Y.S.2d 257]

The Law Firm of Ravi Batra, P.C., New York, N.Y. (Michael W. Kennedy, Todd B. Sherman, and Yun Jin Lee of counsel), for appellant.Nicoletti Gonson Spinner & Owen LLP, New York, N.Y. (Joseph J. Gulino and Pauline E. Glaser of counsel), for respondent.ANITA R. FLORIO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

[83 A.D.3d 669] In an action to recover damages for personal injuries, the [83 A.D.3d 670] plaintiff appeals from a judgment of the Supreme Court, Richmond County (Marin, J.), dated March 13, 2009, which, upon a jury verdict finding him 70% at fault and the defendant 30% at fault in the happening of the accident, and upon an order of the same court dated January 26, 2009, denying his motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendant and against him, in effect, dismissing the complaint.

ORDERED that the judgment is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and the matter is remitted to the Supreme Court, Richmond County, for a new trial.

On May 23, 2002, the plaintiff attended a car auction conducted by the defendant, Adesa Corporation, at its property in Manville, New Jersey. The defendant's property, covering 164 acres, was protected by an electrified fence capable of producing 7000 volts. The fence's electric current was on at the time of the accident.

On the day of the accident, the plaintiff purchased a vehicle at the auction and then drove it to a location within the defendant's enclosed property in order to inspect the finish of the vehicle. During this inspection, the plaintiff leaned back, came in contact with the fence, and received an electric shock. A sign, which contained a warning in Spanish about the fence's 7000 volt capacity and a lightning bolt symbol, was affixed to the fence in the area where the plaintiff was injured.

In 2004 the plaintiff commenced this action against the defendant alleging, inter alia, that it negligently and recklessly created and maintained a dangerous and hazardous condition in the form of the electrified fence and negligently failed to warn the plaintiff about the hazard.

The matter proceeded to trial by jury. At the conclusion of the trial, the jury found that the defendant was 30% at fault in the happening of the accident and the plaintiff 70% at fault. Since apportionment was subject to New Jersey law, which proscribes recovery to a plaintiff found to be more than 50% at fault, the plaintiff was not entitled to compensation for his injury based upon the jury verdict. The Supreme Court entered judgment in favor of the defendant. We reverse the judgment and remit the matter to the Supreme Court for a new trial.

[921 N.Y.S.2d 258]

The Supreme Court improvidently exercised its discretion when it denied the plaintiff's application to admit the electric fence agreement between the defendant and the nonparty fence manufacturer on the theory that admitting an insurance agreement[83 A.D.3d 671] would be too prejudicial to the defendant ( see Leotta v. Plessinger, 8 N.Y.2d 449, 461–462, 209 N.Y.S.2d 304, 171 N.E.2d 454 [if a provision in the agreement is “relevant to one of the material issues, it cannot be excluded on the ground that it may be prejudicial”] ). Excluding all evidence that a defendant is carrying liability insurance is “untenable” ( id. at 461, 209 N.Y.S.2d 304, 171 N.E.2d 454). For example, it has long been accepted that evidence that the defendant insured the premises is admissible in order to prove ownership or control ( see Salm v. Moses, 13 N.Y.3d 816, 818, 890 N.Y.S.2d 385, 918 N.E.2d 897; Hughes v. Cold Spring Constr. Co., 26 A.D.3d 858, 859, 809 N.Y.S.2d 751; Cleland v. 60–02 Woodside Corp., 221 A.D.2d 307, 633 N.Y.S.2d 529). Likewise “[i]f the evidence is relevant to a material issue in the trial, it may be admissible notwithstanding the resulting prejudice of divulging the existence of insurance to the jury” ( Salm v. Moses, 13 N.Y.3d at 818, 890 N.Y.S.2d 385, 918 N.E.2d 897). The agreement's language that the “provider agrees to assume full liability for injuries caused by the system during closed hours ” (emphasis added) is admissible, as it relates to a material issue at trial that the defendant had a duty to turn the fence's electric current off during business hours and had actual notice of the potential harm of leaving the electric current on during business hours. Since the plaintiff is not attempting to challenge or recover under the agreement but is only seeking to admit the agreement to show that the defendant assumed a duty of care, whether the plaintiff has standing as a noncontracting party is not relevant ( id.; cf. Decolator, Cohen & DiPrisco v. Lysaght, Lysaght & Kramer, 304 A.D.2d 86, 90, 756 N.Y.S.2d 147).

The Supreme Court...