601 N.Y.S.2d 478 | N.Y. App. Div. | 1993
Judgments, Supreme Court, New York County (Helen E.
In this asbestos litigation brought against multiple defendants, the cases of plaintiffs Bigelow, Glaser and the Estate of Sanchez were tried jointly. By the time of trial the only remaining litigating defendant in all three matters was appellant Celotex, all the other named defendants having either settled or been dismissed. By virtue of appellant’s assertion of contribution claims pursuant to General Obligations Law § 15-108 against the other defendants no longer in the case, those defendants were listed on the verdict sheet, together with Celotex, and the jury was instructed to set forth the percentage, if any, of responsibility that each of the defendants bore for the injuries suffered by the respective plaintiffs. The jury found in favor of plaintiffs against all of the named defendants, apportioning responsibility equally among them. The trial court granted the motion to set aside the verdict with respect to apportionment, finding such to be against the weight of the evidence, and directed a retrial on that issue only. On the retrial, before another Justice, a verdict imposing 100% responsibility for the damages upon appellant Celotex was directed and a final judgment was entered against Celotex only.
On this appeal, defendant-appellant Celotex seeks (1) a reversal of the order of the IAS Court, which set aside the verdict insofar as it equally apportioned liability among all named defendants and ordered a new trial solely on apportionment, and (2) a reinstatement of the original verdict, although it raises an issue as to excessiveness of the amounts awarded to plaintiffs. While appellant’s primary contention is that no retrial on apportionment should have been held, at all, Celotex also takes issue with the court’s rulings and conclusions on that retrial which it contends require, at the very least, a new trial on apportionment. Appellant Celotex does not contest its own liability on this appeal and implicitly concedes that the evidence warranted a finding of liability against it by the first jury.
Upon a review of the record, we find that the original Trial
With respect to the question of the burden of proof on the issue of apportionment, we find that that burden was properly placed on defendant Celotex. While plaintiff had the burden of proof, in the first instance, of establishing liability on the part of the non-settling defendant Celotex, once that liability was established, as it concededly was on the original trial, Celotex bore the burden of establishing the equitable shares attributable to the settling defendants for purposes of reducing the amount of Celotex’s own responsibility for the damages (see, Bonnot v Fishman, 88 AD2d 650, affd 57 NY2d 870; In re Joint S. & E. Dist. Asbestos Litig., 741 F Supp 50, 51, n 2; Construction Technology v Lockformer Co., 781 F Supp 195, 202; see also, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 23A, General Obligations Law § 15-108, at 701).
Since the burden of proof on the apportionment issue lay with appellant, and that was the only issue before the court on the retrial, the court properly required appellant to proceed first in presenting its proof before the jury. However, contrary to the determination made by the court on the retrial, we find that the evidence presented by appellant warranted submission of the apportionment issue to the jury rather than a directed verdict. Appellant should not have been precluded from having the jury determine whether it should not be held solely responsible for the entire consequences of the disease suffered by plaintiffs in light of the evidence demonstrating that defendant was not the sole man
Since a new trial is necessary on apportionment, we note that, to the extent that plaintiffs’ answers to interrogatories listed various companies which contributed to their asbestos exposure, they constituted admissions of a party and were admissible as evidence (United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264). However, deposition testimony, other than that of Harry Brayne, which was referred to in the answers to the interrogatories, was not admissible since the plaintiffs, against whom such testimony was sought to be used, were not present or represented at those depositions, received no notice thereof (CPLR 3117 [a] [3]) and did not in the first instance elect to read into evidence any of the testimony from those depositions (CPLR 3117 [b]).
Finally, upon our review of the evidence we find that the awards of damages were not excessive. Concur—Ellerin, J. P., Kupferman, Ross and Kassal, JJ.