Vitale v. Astoria Energy II, LLC

• Citation: 121 N.Y.S.3d 126,180 A.D.3d 1104
• Decision Date: 26 February 2020
• Docket Number: 2018–08637,2019–00840,Index No. 8372/12
• Parties: Daniel VITALE, et al., Appellants, v. ASTORIA ENERGY II, LLC, et al., Respondents.
• Court: New York Supreme Court Appellate Division

180 A.D.3d 1104
121 N.Y.S.3d 126

Daniel VITALE, et al., Appellants,
v.
ASTORIA ENERGY II, LLC, et al., Respondents.

2018–08637
2019–00840
Index No. 8372/12

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

Argued - October 8, 2019
February 26, 2020

121 N.Y.S.3d 127

Sullivan Papain Block McGrath & Cannavo P.C., Garden City, N.Y. (Stephen C. Glasser of counsel), for appellants.

Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Thomas M. Martyn of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

180 A.D.3d 1104

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (Cheree´ A. Buggs, J.), entered April 2, 2018, and (2) a judgment of the same court entered December 17, 2018. The order denied the plaintiffs' motion pursuant to CPLR 4404 to set aside a directed verdict in favor of the defendants on the issue of liability and for a new trial. The judgment, upon the order, is in favor of the defendants and against the plaintiffs dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the plaintiffs' motion pursuant to CPLR 4404 to set aside the directed verdict in favor of the defendants on the issue of liability and for a new trial is granted, the complaint is reinstated, the order is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of liability; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

The plaintiff Daniel Vitale (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action to recover damages for personal injuries sustained by the injured plaintiff while he was working at a construction site. The defendant Astoria Energy II, LLC, was the owner of the property, and the defendant SNC–Lavalin Constructors, Inc., was the construction manager for the project. At the time of the accident, the plaintiff was working as a surveyor at the site, performing anchor bolt verification and tightening in preparation

180 A.D.3d 1105

for a concrete pour at a footing for a boiler on the site. While traversing an uncovered steel reinforcement

121 N.Y.S.3d 128

bar grid (hereinafter rebar grid), the injured plaintiff sustained injuries when he lost his balance and his left leg fell through one of the square openings of the rebar grid.

A jury trial was held on the cause of action...