745 N.Y.S.2d 520 | N.Y. App. Div. | 2002
—Amended judgment, Supreme Court, New York County (Walter Tolub, J., and a jury), entered July 18, 2001, awarding damages to two construction workers for personal injuries and apportioning liability 20% against defendant general contractor and 80% against third-party defendant subcontractor/plaintiffs’ employer, and bringing up for review a posttrial motion by the subcontractor to dismiss the general contractor’s cause of action for contractual indemnification against it, and posttrial motions by both the general contractor and the subcontractor to set aside as excessive the awards for future lost earnings of $2,250,000 over 22 years to one plaintiff and $2,000,000 over 22 years to the other plaintiff, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about January 22, 2001, unanimously dismissed, without costs, as subsumed within the appeal from the amended judgment.
The subcontractor argues that the indemnification clause underlying the general contractor’s cause of action for contractual indemnification purports to indemnify the general contractor for its own negligence, contrary to General Obligations Law
The apportionment is not against the weight of the evidence. The 20% finding against the general contractor is reasonably supported by evidence that the vertical steel columns on which plaintiffs were perched would not have collapsed had the anchor bolts at their base, installed by the general contractor, not pulled out of their concrete encasement. The 80% finding against the subcontractor is reasonably supported by evidence that it controlled the work being performed at the time of the accident, failed to use guide wires that, according to the testimony of its own employees, should have been used and would have prevented the collapse of the columns, failed to fol
The court properly permitted evidence of reasonably certain increases in plaintiffs’ wages that they would have earned had they not been injured, in addition to applying the 4% adjustment to future payments required by CPLR 5041 (e) (cf., Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 NY2d 311). Defendants’ argument that plaintiffs’ experts’ growth rates are unreasonably high is undermined by the testimony of their own expert suggesting that the awards for future lost earnings should be 20% to 25% less than that urged by plaintiffs’ expert, where the jury’s awards were over 50% less. Concur — Nardelli, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.