`FILED: NEW YORK COUNTY CLERK 03/27/2018 12:34 PM
`FILED: NEW YORK COUNTY CLERK 03m2018 12:34 PM
`
`NYSCEF DOC. NO. 95
`NYSCEF DOC. NO. 95
`
`INDEX NO. 150281/2011
`INDEX NO' 150281/2011
`
`
`
`
`RfiCfiIVfiD
`VYSCEF: 03/27/2018
`RECEIVED NYSCEF: 03/27/2018
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`NEW YORK COUNTY
`
`PRESENT:
`
`Hon. Paul A. Goeiz. JSC
`
`”H"
`PART_____
`
`“Justice
`L
`
`Index Number : 150281/2011
`TOWER INSURANCE COMPANY OF
`vs
`
`LMW ENGINEERING GROUP LLC
`Sequence Number : 002
`VACATE OR MODIFY AWARD
`
`The following papers, numbered 1 to
`, were read on this motion tolfor
`
`Notice of Motion/Order to Show Cause — Affidavits — Exhibits
`
`Answering Affidavits —- Exhibits
`
`
`Replying Affidavits
`
`Upon the foregoing papers, it is ordered that this motion is
`
`INDEX No
`
`‘
`MOTION DATE
`
`MOTION SEQ. No.
`
`INOISI-
`
`|N0(s).
`
`|No(s).
`
`DECIDED AS PER ATTACHED DECISION AND ORDER
`
`of-
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`3051105 50% DATED 5/22/10"
`
`
`
`MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICEFORTHEFOLLOWINGREASON(S):
`
`
`
`Dated:
`
`3123M
`
`flfiz EJSO
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`1. CHECK ONE: ..................................................................... 2 CASE DISPOSED
`2. CHECK As APPROPRIATE: ........................... MOTION Is: D GRANTED
`:3. DENIED
`
`‘
`Hon. Paul A. Goeiz. JSC
`S NON-FINAL DISPOSITION
`CI GRANTED IN PART
`II] OTHER
`
`3. CHECK IF APPROPRIATE: ................................................ C] SETTLE ORDER
`
`D SUBMIT ORDER
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`a DO NOT POST
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`|:I FIDUCIARY APPOINTMENT
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`CI REFERENCE
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`FILED: NEW YORK COUNTY CLERK 03/27/2018 12:34 PM
`FILED: NEW YORK COUNTY CLERK 03m2018 12:34 PM
`
`NYSCEF DOC. NO. 95
`NYSCEF DOC. NO. 95
`
`INDEX NO. 150281/2011
`INDEX NO~ 150281/2011
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 03/27/2018
`RECEIVED NYSCEF: 03/27/2018
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`Index No.2 150281/2011 ~
`DECISION/ORDER
`
`m Y
`
`ORK a/s/o 532 39 REALTY, LLC,
`.
`Plaintiff,
`
`-against-
`
`,Motion Sequences: 002 and 003
`
`LMW ENGINEERING GROUP, LLC, JIEMING
`WANG SHINE REALTY, INC., ZHI KUANGYU,
`PANE STONE CONSTRUCTION, INC,
`SHIMING THAM, SHIMING TAM ARCHITECT,
`P. C, HENG YONG CONSTRUCTION, INC. and
`JOHN HSU,
`
`Defendants.
`
`Recitation, as required by CPLR 2219(a), of the papers con‘s‘ideredtin the review of this motion:
`
`Papers
`Notice of Motion and Affidavits/Affinnations/
`Memos of Law annexed
`Opposition Affidavits/Affirmations and Memo
`of Law annexed
`Reply Affidavits/Affirmations/Memos of
`Law annexed
`'
`
`ERIKA M. EDWARDS, JS. C. .'
`
`Numbered
`
`l, 2
`
`3, 4
`
`5, 6
`
`Plaintiff Tower Insurance Company of New York a/s/o 532 39 Realty, LLC (“Tower”)
`brought this subrogation action against Defendants Pane Stone Construction (“Pane Stone”),
`Metal Stone Construction, Inc. (“Metal Stone”):(“collectively “Defendants”), and others to
`recover money for its insured’s property damage in 2008 caused by negligent underpinning
`construction work conducted on the adjacent building. Tower’s claims against Pane Stone and
`Metal Stone were tried before a jury on various days from September 15, 2017, to October 4,
`2017. The jury rendered a verdict in Tower’s favor against Defendants in the total amount of
`$449,627.15 with Pane Stone being 75% responsible and Metal Stone being 25% responsible for
`Tower’s loss.
`
`Both Defendants now move for an order setting aside the verdict, pursuant to CPLR
`4404(a). Under motion sequence 002, Pane Stone moves to set aside the jury’s award of
`damages1 because it was against the weight of the evidence, excessive and speculative. Under
`
`1 Pane Stone listed the damages award at $452,127.15, but it was actually 449,627.15.
`
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`FILED: NEW YORK COUNTY CLERK 03/27/2018 12:34 PM
`FILED: NEW YORK COUNTY CLERK 03m2018 12:34 PM
`
`NYSCEF DOC. NO. 95
`NYSCEF DOC. NO. 95
`
`INDEX NO. 150281/2011
`INDEX NO~ 150281/2011
`
`
`
`
`
`RaCaIVaD VYSCEF: 03/27/2018
`RECEIVED NYSCEF: 03/27/2018
`
`
`
`motion sequence 003, Metal Stone moves to set aside the jury’s liability verdict as against the
`weight of the evidence, for an order finding that Metal Stone was not negligent as a matter of
`law, or in the alternative, for an order granting a new trial as to negligence. Metal Stone also
`moves to set aside the jury’s damages award of $449,627.15 to Tower, or to reduce the award to
`$200,000 to $238,000, or in the alternative, for a new trial on damages. Tower opposes both
`motions and Pane Stone partially opposed Metal Stone’s motion as it pertained to setting aside
`the jury’s liability verdict finding that Metal Stone was 25% liable for Tower’s damages.
`
`For the reasons set forth herein, the court denies Defendants’ motions in their entirety.
`
`Pane Stone does not dispute the jury’s apportionment of liability against it, but argues in
`substance that the jury’s damages award was against the weight of the evidence, excessive and
`speculative since it was solely based on estimates and opinion. Pane Stone further argues that the
`true measure of damages should have been based on the evidence demonstrating that the
`insured’s actual cost of repair was $200,000 to $204,000 and that the diminution of value was
`$200,000.
`
`Metal Stone disputes the jury’s verdict on liability and damages. Metal Stone argues in
`substance that it had no liability because it only filed the PW2, which was the work permit for
`the New York City Department of Buildings. It did not perform any work at the site, it was not
`present at the site, it had no supervisory authority over the underpinning work or subcontractor
`and it owed no duty to Tower or its insured. Shine Realty was the owner of the property where
`the underpinning work was being performed. Shine Realty hired Pane Stone as its general
`contractor and Pane Stone hired Heng Yong Construction to perform the underpinning work.
`
`Metal also argues that the damages award should be set aside or reduced because the jury
`failed to use the proper measure of damages which was the lesser of the diminution in value or
`the reasonable cost of repair. Metal Stone and Pane Stone both argue in substance that the
`evidence demonstrated that Tower’s insured paid $200,000 for the repairs, there was additional
`work needed to repair the roof at $20,000 and $500 each for seven windows for a total of
`$23,500. The defense experts estimated the repairs costs to be $204,000 and $238,000 and the
`diminution in value to be $200,000. Metal Stone claims that Tower’s expert’s estimate was
`inflated because it included some items which were not damaged. Therefore, the jury’s damages
`verdict should be set aside as against the weight of the evidence and because it was excessive or
`the court should reduce the award to $200,000 to $23 8,000, or in the alternative, order a new trial
`on damages.
`
`CPLR 4404(a) permits a trial court to set aside a jury verdict or any judgment entered
`thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of
`law or it can order a new trial where the verdict is contrary to the weight of the evidence, in the
`interest ofjustice, or where the jury cannot agree after being kept together for a reasonable time
`as determined by the court (CPLR 4404[a]).
`
`The court is permitted to set aside a verdict and order a new trial where the jury’s verdict
`is against the weight of the evidence and it “inyolfiesegwhat is in large part a discretionary
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`FILED: NEW YORK COUNTY CLERK 03/27/2018 12:34 PM
`FILED: NEW YORK COUNTY CLERK 03m2018 12:34 PM
`
`NYSCEF DOC. NO. 95
`NYSCEF DOC. NO. 95
`
`INDEX NO. 150281/2011
`INDEX NO~ 150281/2011
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`R«.C«.IV«.D \IYSCEF: 03/27/2018
`RECEIVED NYSCEF: 03/27/2018
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`citations omitted]). For a court to determine that as a matter of law a jury verdict is not supported
`by sufficient evidence, the court must find that based on the evidence presented at trial, “there is
`simply no valid line of reasoning and permissible inferences which could possibly lead rational
`[people] to the conclusion reached by the jury” (id.). If there is a question of fact and “it would
`not be utterly irrational for a jury to reach the result it has determined upon .
`.
`. the court may not
`conclude that the verdict is as a matter of law not supported by the evidence” (id. [internal
`quotation and citation omitted]).
`
`It requires the court to view the evidence in the light most favorable to the prevailing
`party, for the movant to assume the facts testified to by the prevailing party’s witnesses to be true
`and to grant all favorable inferences flowing from the evidence to the prevailing party (see S.
`Kornblum Metals Co. v Intsel Corp., 38 NY2d 376 [1976]). Judgment notwithstanding the
`verdict is not appropriate where issues of credibility are involved as matters of credibility and the
`weight to be accorded the testimony are within the province of the jury (Bodlovich v Carucci, 38
`AD2d 699, 700 [15‘ Dept 1972]).
`
`When applying these legal principles to the evidence presented at trial, the court
`determines that the jury’s verdict on liability and damages was not against the weight of the
`evidence and the court denies the motions to set aside the verdict, for a new trial, for an order
`that Metal Stone was not negligent as a matter of law, or to reduce the jury’s damages award.
`
`Here, Defendants failed to demonstrate that the jury’s verdict was against the weight of
`the evidence by showing that the evidence preponderated so greatly in their favor that the jury
`could not have reached its conclusion on any fair interpretation of the evidence. Here, there was
`ample evidence to support the jury’s verdict in favor of Tower based on 75% liability to Pane
`Stone and 25% liability to Metal Stone and the jury’s damages award in the amount of
`$449,627.15. After considering the credibility of the witnesses and the reasonable inferences
`drawn from the evidence in favor of Tower, it is easy to understand why the jury appeared to
`credit the testimony and documentary evidence submitted by Tower to substantiate liability and
`damages.
`
`As noted by both Tower and Pane Stone, the jury found Metal Stone to be 25% liable
`based on the evidence which revealed that Metal Stone filed the application for the work permit,
`it was signed by a Metal Stone employee who listed Metal Stone as the construction
`superintendent. As the construction superintendent, Metal Stone was required to conduct daily
`site visits to supervise the work, including underpinning.
`
`Metal Stone was also listed as the client on the engineer’s support of excavation plans.
`The engineer testified in substance that he had a long-term relationship with Metal Stone, that he
`was hired by Metal Stone, paid by Metal Stone and whenever he saw that the sub-contractor was
`not performing the underpinning work properly, he called Metal Stone to send a supervisor to the
`site and a representative came each time. He believed Metal Stone was the general contractor for
`the foundation work and that Metal Stone was required to contact him prior to the start of the
`underpinning work.
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`FILED: NEW YORK COUNTY CLERK 03/27/2018 12:34 PM
`FILED: NEW YORK COUNTY CLERK 03m2018 12:34 PM
`
`NYSCEF DOC. NO. 95
`NYSCEF DOC. NO. 95
`
`INDEX NO. 150281/2011
`INDEX NO~ 150281/2011
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`
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`R«.C«.IV«.D \IYSCEF: 03/27/2018
`RECEIVED NYSCEF: 03/27/2018
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`
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`Additionally, the evidence demonstrated that Metal Stone and Pane Stone are
`significantly interrelated as they are owned by the same person, they share the same office, have
`the same address and have the same employees.
`
`Damages experts from all parties testified at trial. Based on the evidence, Tower
`demonstrated that it paid its insured $449,627.15 to settle the damages claim. Tower presented
`documentary and testimonial evidence that this amount was based on their expert’s detailed
`
`inspection of the premises and an itemized estimate of the cost to repair the damaged property. It
`was a compromise reached after negotiating with the insured’s expert and attorney and after
`
`deducting depreciation. The evidence revealed that the insured did not use all the money to repair
`the property, but paid off the building’s outstanding mortgage to avoid additional problems he
`was having with his mortgage company. He used some of the money to pay off his legal fees and
`then spent approximately $200,000 on repairs that primarily dealt with safety concerns. The
`insured testified in substance that he had not yet completed all necessary repairs, that he still
`needed to repair the roof, windows, capstones and a staircase. He said that the building is still not
`level and there are problems with the doors and windows. He stated in substance that even after
`all repairs are made, the building will still not be restored to its pre-accident condition because
`the facade and comiches can never be replaced to their original condition. Additionally, Tower’s
`structural engineer testified in substance that the repair costs increased from the date of the initial
`incident because the building is in continuing structural decline and erosion which caused the
`cracks to grow and the building to shift over time.
`
`As Tower argues, Defendants’ experts did not conduct a detailed inspection of the
`premises, nor did they provide an itemized list of estimated repairs needed to restore the
`premises to its pre-accident condition. They largely based their conclusions on reports prepared
`by others. Tower claims that the jury credited its experts over the defense experts because the
`defense experts were not structural engineers or expert builders. Based on the evidence, it was
`reasonable for the jurors to credit Tower’s testimonial and documentary evidence over the
`evidence presented by Defendants.
`
`As mentioned above, issues of credibility and the weight to be given to testimony are
`within the province of the jury and cannot be a basis to set aside a verdict. Therefore, based on
`the evidence, Defendants failed to demonstrate that there is simply no valid line of reasoning and
`permissible inferences which could possibly lead rational jurors to conclude that Defendants
`were not liable for Tower’s claims in the total amount of $449,627. 1 5, with Pane Stone held to
`be 75% liable and Metal Stone 25% held to be liable for such damages.
`
`Therefore, the court denies Defendants’ motions in their entirety with prejudice.
`
`As such, it is hereby
`
`ORDERED that the court denies Defendant Pane Stone Construction’s motion to set
`aside the verdict as to damages under motion sequence 002 in its entirety with prejudice and
`without costs; and it is further
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`FILED: NEW YORK COUNTY CLERK 03/27/2018 12:34 PM
`FILED: NEW YORK COUNTY CLERK 03m2018 12:34 PM
`
`NYSCEF DOC. NO. 95
`NYSCEF DOC. NO. 95
`
`INDEX NO. 150281/2011
`INDEX NO~ 150281/2011
`
`
`
`
`
`RaCaIVaD VYSCEF: 03/27/2018
`RECEIVED NYSCEF: 03/27/2018
`
`
`
`ORDERED that the court denies Defendant Metal Stone Construction’s motion to set
`aside the jury’s verdict on liability and damages and for other relief under motion sequence 003
`in its entirety with prejudice and without costs.
`
`Date: March 22, 2018
`
` H N. RIKAM. DWARDS
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