Pioli v. Morgan Guar. Trust Co. of New York

• Citation: 605 N.Y.S.2d 254,199 A.D.2d 144
• Parties: Angelo PIOLI, et al., Plaintiffs-Appellants, v. MORGAN GUARANTY TRUST COMPANY OF NEW YORK, et al., Defendants-Respondents .
• Decision Date: 21 December 1993
• Court: New York Supreme Court — Appellate Division

Page 254

605 N.Y.S.2d 254

199 A.D.2d 144

Angelo PIOLI, et al., Plaintiffs-Appellants, v. MORGAN GUARANTY TRUST COMPANY OF NEW YORK, et al.,

Defendants-Respondents

[And a Third and Fourth-Party Action].

Supreme Court, Appellate Division,

First Department.

Dec. 21, 1993.

Before MURPHY, P.J., and KUPFERMAN, ROSS and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Myriam J. Altman, J.), entered December 14, 1992, after jury trial, which dismissed the complaint, the third- and fourth-party actions and all counterclaims and cross-claims, unanimously affirmed, without costs. The appeal from the order entered January 16, 1992, directing entry of said judgment, is dismissed as subsumed in the judgment appealed from, without costs.

Plaintiff Angelo Pioli, who was employed as an ironworker foreman by fourth-party defendant Steel Structures, claims that he was injured after falling at a construction site at 60 Wall Street. Pioli and his wife instituted this action against defendant Morgan Guaranty Trust Company, the owner of the premises, and Tishman Construction Company, the general contractor at the site. Pioli attributes the accident to the collapse of scaffolding on which he was standing. Wooden planks had been placed over structural steel beams to cover a hole that was to become an elevator shaft. Defendants Morgan and Tishman impleaded third-party defendant subcontractor Arc Electrical Construction Co. which, in turn, impleaded fourth-party defendant subcontractor Steel Structures. The complaint asserts, inter alia, a violation of Labor Law §§ 200 and 240.

Trial was conducted using the reverse bifurcation method. Summations were made on the question of damages and the issue submitted to the jury. Then, following summations on the issue of liability, the jury was asked to determine the comparative negligence of the plaintiff and the various defendants with respect to Labor Law § 200.

At the close of the evidence, Supreme Court, outside the presence of the jury, informed counsel that it would direct a verdict in favor of plaintiff and against defendants pursuant to Labor Law § 240 on the issue of liability only. Defendants' counsel excepted to the directed verdict, reserving the right to make a motion with respect to the ruling at an appropriate time. The jury was instructed that, in assessing the amount of damages, liability was not to be considered. However, in the course of deliberations, the jury sent a note asking how it should proceed in the event it found that plaintiff partially or wholly responsible for the accident. The court responded that, "at this juncture, that's not to be considered by you. You are to fill out the verdict sheet as if the plaintiff had no responsibility."

On December 18, 1989, the jury rendered a verdict for damages in the amount of $105,500. Plaintiffs' counsel raised the objection that the court's failure to advise the jurors, in response to their question, that a directed verdict had been issued with respect to defendants' liability "influenced their ultimate decision as a result of which they ended with what I regard as an inadequate verdict in respect of damages." Plaintiffs' counsel was then explicitly asked if he wanted the court to either declare a mistrial or again submit the question of damages to the jury for redeliberation after a recharge. Plaintiffs' counsel responded, "Your Honor, at the end of the trial, I have ten [sic] days in which to make appropriate motions if there is anything further. I am not suggesting that I will ask, but I have the right to ask."

Following counsels' summations on the issue of liability, the court charged the jury with respect to comparative negligence. The first question on the special verdict sheet asked, "Was plaintiff's fall caused by a plankor planks collapsing under him?" Although the posing of this question was inconsistent with the court's directed verdict on the issue of liability, plaintiffs' counsel did not interpose an objection, stating only, "I think you should have charged that Tishman was responsible to supply safety devices to prevent the accident." The court responded, "I don't think it matters for purposes of this charge, since I have already given you a directed verdict on liability * * * Proportions don't matter as far as you are concerned. The proportions only matter among the defendants. You still get 100 percent." Perhaps in reliance on the court's assurance with regard to the directed verdict, plaintiffs' attorney did not object further.

On December 20, 1989, the jury returned a verdict on the issue of liability, responding in the negative as to whether plaintiff's fall was caused by a collapse of the planking. The jury determined that defendants were not negligent, apportioning responsibility for the accident between plaintiff (80%) and third-party defendant Arc Electrical Construction Company (20%).

After the verdict was rendered, the court said, "I think I made a mistake in directing the verdict without giving the question of causation. That's why I gave it to them now." Plaintiffs' counsel thereupon inquired about the implications of the verdict. The court replied that, in effect, the jury had returned a defendant's verdict in its entirety. Plaintiffs' counsel then asked if the directed verdict was being withdrawn, to which the court replied, "It may be that I have to direct a mistrial on the whole thing because of the mess I am in with that. It may be that that is what I have to do is declare a mistrial, because I obfuscated a record."

The court explained to counsel for plaintiffs that it could not direct a verdict under Labor Law § 240 unless the jury, in the first instance, made a finding of causation crediting plaintiff's proof with respect to the defective condition of...