Tranchina v. Sisters of Charity Health Care System Nursing Home, Inc.Tranchina v. Sisters of Charity Health Care System Nursing Home, Inc.
—In an action to recover damages for personal injuries, etc., the third-party and second third-party defendant, JBL/Tacoma Joint Venture, appeals from (1) stated portions of an order of the Supreme Court, Kings County (Levine, J.), dated September 11, 2000, which, in effect, inter alia, denied that branch of its motion which was pursuant to CPLR 4404 to set aside a jury verdict in favor of the plaintiffs on the issue of damages, and (2) a judgment of the same court, dated February 6, 2001, which, upon (а) the order dated .September 11, 2000, (b) an order of the same court (R. Goldberg, J.), dated May 28, 1999, granting thе plaintiffs’ motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1), and conditiоnally granting those branches of the defendants’ separate motions which were for cоntractual and common-law indemnification against it, and (c) a jury verdict on the issue of damаges finding that the plaintiff Salvatore Tranchina sustained damages of $800,000 for past pain and suffеring, $1,000,000 for future pain and suffering, $200,000 for past lost wages, and $12,000 for future medical expenses, and that the plaintiff Maria Tranchina sustained damages of $250,000 for
Ordered that the appeal from the order dated September 11, 2000, is dismissed, without costs or disbursеments; and it is further,
Ordered that the judgment is reversed, on the law, the facts, and as an exercise of discretion, the plaintiffs’ motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) is denied, that branch of the motion of the third-party and second third-party defendant which was pursuant to CPLR 4404 to set aside the jury verdict in favor of the plaintiffs is granted, the orders dated May 28, 1999, and September 11, 2000, are modified accordingly, and the matter is remitted to the Supreme Court, Kings County, fоr a trial on the issue of liability pursuant to Labor Law § 240 (1) and, if liability is found, a new trial on the issue of damаges, with costs to abide the event.
The appeal from the intermediate order datеd September 11, 2000, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho,
On July 27, 1992, thе plaintiff Salvatore Tranchina (hereinafter the injured plaintiff) was performing constructiоn work at premises owned by the defendant Sisters of Charity Health Care System Nursing tiome, Inc. (hereinаfter Sisters of Charity). The injured plaintiff was standing on an outrigger platform using a concrete vibratоr to even out concrete that had been poured for the foundation of the building under сonstruction. The outrigger platform was between 10 and 12 feet above the ground. While performing this work, he fell backward off of the scaffold, allegedly sustaining injuries. The injured plaintiff did not know how thе accident occurred, and he did not feel or hear any movement of the platfоrm before he fell. It is undisputed that the outrigger platform was not equipped with railings.
The injured plaintiff and his wife, the plaintiff Maria Tranchina, commenced this action against Sisters of Charity, and thе construction manager Barr & Barr, Inc. (hereinafter Barr & Barr), to recover damages for the injuries he allegedly
The Supreme Court erred in granting the plaintiffs’ motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1). Since the scaffold or platform from which the injured plaintiff fell did not “move, collapsе, or otherwise fail to perform its function of supporting the plaintiff,” whether it provided prоper protection within the meaning of Labor Law § 240 (1) was a question of fact for the jury (Romano v Hotel Carlyle Owners Corp.,
The Supreme Court also erred in denying that branch of Joint Venture’s motion which was pursuant to CPLR 4404 to set аside the jury verdict in favor of the plaintiffs. The jury determination of the plaintiffs’ damages deviates materially from what would be reasonable compensation, and we exercise оur discretion to order a new trial on damages if liability is found under Labor Law § 240 (1) (see CPLR 5501 [c]; Rubinfeld v City of New York,
Conditional summary judgment wаs properly granted in favor of the owner, Sisters of Charity, and the construction manager, Bаrr & Barr, on the issue of common-law and contractual indemnification as Joint Venture failеd to show that its liability was anything-but vicarious (see Werner v East Meadow Union Free School Dist.,
The defendants’ remaining contentions are without merit. Smith, J.P., O’Brien, McGinity and Crane, JJ., concur.