FILED: NEW YORK COUNTY CLERK 04/10/2019 04:51 PM
`FILED: NEW YORK COUNTY CLERK 041112019 04:51 P
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`NYSCEF DOC. NO. 193
`V
`NYSCEF DOC. NO. 193
`
`INDEX NO. 153250/2015
`INDEX NO- 153250/2015
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`
`
`
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`RfiCfiIVfiD \IYSCEF: 04/10/2019
`RECEIVED NYSCEF: 04/10/2019
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`
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`A
`EXHIBIT
`EXHIBIT A
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`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/10/2019 04:51 PM
`NYSCEF DOC. NO. 193
`
`INDEX NO. 153250/2015
`
`RECEIVED NYSCEF: 04/10/2019
`
`Supreme Court of the State of New York
`Appellate Division: Second Judicial Department
`
`D58417
`Q/afa
`
` AD3d
`
`Argued - September 21, 2018
`
`WILLIAM F. MASTRO, J.P.
`JEFFREY A. COHEN
`JOSEPH J. MALTESE
`LINDA CHRISTOPHER, JJ.
`
`
`2016-05840
`2016-10557
`2017-04748
`
`Charles Simon, etc., plaintiff-respondent, v Granite Building 2,
`LLC, defendant-appellant-respondent, Kulka Contracting,
`LLC, defendant-respondent-appellant, FXR Construction,
`Inc., defendant-respondent, et al., defendants.
`
`(Index No. 22101/08)
`
`
`
`DECISION & ORDER
`
`Quirk and Bakalor, P.C. (Shaub, Ahmuty, Citrin & Spratt, LLP, New York, NY
`[Timothy R. Capowski and Sofya Uvaydov], of counsel), for defendant-appellant-
`respondent.
`
`Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, NY (Harriet Wong and
`Vanessa M. Corchia of counsel), for defendant-respondent-appellant.
`
`Rosenberg & Gluck, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY
`[Brian J. Isaac and Michael H. Zhu], of counsel), for plaintiff-respondent.
`
`White Fleischner & Fino, LLP, New York, NY (Nancy Davis Lewis of counsel), for
`defendant-respondent.
`
`In an action to recover damages for personal injuries and wrongful death, the
`defendant Granite Building 2, LLC, appeals from (1) an order of the Supreme Court, Nassau County
`(Jeffrey S. Brown, J.), entered April 26, 2016, (2) an order of the same court entered September 13,
`2016, and (3) a judgment of the same court entered March 23, 2017, and the defendant Kulka
`Contracting, LLC, cross-appeals from (1) the order entered April 26, 2016, and (2) the judgment.
`
`March 27, 2019
`
`SIMON v GRANITE BUILDING 2, LLC
`
`Page 1.
`
`

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`FILED: NEW YORK COUNTY CLERK 04/10/2019 04:51 PM
`NYSCEF DOC. NO. 193
`
`INDEX NO. 153250/2015
`
`RECEIVED NYSCEF: 04/10/2019
`
`The order entered April 26, 2016, insofar as appealed and cross-appealed from, denied those
`branches of the appellants’ separate motions which were pursuant to CPLR 4404(a) to set aside the
`jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial, to
`set aside the jury verdict on the issue of damages for the decedent’s pre-impact terror as contrary to
`the weight of the evidence and for a new trial, or to reduce, as excessive, the damages awarded for
`the decedent’s pre-impact terror, and to set aside the jury verdict on all issues in the interest of justice
`and for a new trial, and granted those branches of the appellants’ separate motions which were
`pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages for the plaintiff’s past
`and future pain and suffering, the plaintiff’s past and future economic loss, and the decedent’s past
`and future economic loss, and for a new trial on those damages, or to vacate or reduce, as excessive,
`those damages, only to the extent of directing a new trial on those damages unless the plaintiff
`stipulated to reduce the damages for the plaintiff’s past pain and suffering from the principal sum
`of $3,000,000 to the principal sum of $1,500,000, for the plaintiff’s future pain and suffering from
`the principal sum of $3,000,000 to the principal sum of $1,500,000, for the plaintiff’s past and future
`economic loss from the principal sum of $1,495,000 to the principal sum of $747,500, and the
`decedent’s past and future economic loss from the principal sum of $1,440,000 to the principal sum
`of $720,000. The order entered September 13, 2016, insofar as appealed from by the defendant
`Granite Building 2, LLC, denied that defendant’s motion for leave to renew and reargue its prior
`motion pursuant to CPLR 4404(a). The judgment, insofar as appealed from, upon the denial of the
`motion of the defendant Kulka Contracting, LLC, pursuant to CPLR 4401 for judgment as a matter
`of law made at the close of the plaintiff’s case, upon the jury verdict, upon the order entered April
`26, 2016, and upon the plaintiff’s stipulation to reduce the damages awards as directed in the order
`entered April 26, 2016, is in favor of the plaintiff and against the appellants and another defendant
`in the principal sum of $4,772,614.80.
`
`ORDERED that the appeal from so much of the order entered September 13, 2016,
`as denied that branch of the motion of the defendant Granite Building 2, LLC, which was for leave
`to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
`
`ORDERED that the appeals from the order entered April 26, 2016, and from so much
`of the order entered September 13, 2016, as denied that branch of the motion of the defendant
`Granite Building 2, LLC, which was for leave to renew are dismissed; and it is further,
`
`ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
`
`ORDERED that one bill of costs is awarded to the plaintiff.
`
`The appeals from the order entered April 26, 2016, and from so much of the order
`entered September 13, 2016, as denied that branch of the motion of the defendant Granite Building
`2, LLC (hereinafter Granite), which was for leave to renew must be dismissed because the right of
`direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39
`NY2d 241, 248). The issues raised on the appeals from the order entered April 26, 2016, and from
`so much of the order entered September 13, 2016, as denied that branch of Granite’s motion which
`was for leave to renew are brought up for review and have been considered on the appeal from the
`judgment (see CPLR 5501[a][1]).
`
`March 27, 2019
`
`SIMON v GRANITE BUILDING 2, LLC
`
`Page 2.
`
`

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`FILED: NEW YORK COUNTY CLERK 04/10/2019 04:51 PM
`NYSCEF DOC. NO. 193
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`INDEX NO. 153250/2015
`
`RECEIVED NYSCEF: 04/10/2019
`
`The plaintiff and his wife (hereinafter the decedent) were hired to hang wallpaper in
`a newly constructed office building, which was owned by Granite. Kulka Contracting, LLC
`(hereinafter Kulka), had contracted with Granite to perform as the site construction manager. The
`incident giving rise to this action occurred at approximately 8:30 a.m. on February 13, 2008, the day
`the plaintiff and the decedent were scheduled to commence work in the building. While it had been
`snowing on February 12, 2008, the day before the accident, in the early morning hours of February
`13, 2008, the snow changed to rain. It was raining on the morning of February 13, 2008, when the
`decedent drove her vehicle, with the plaintiff as a passenger, to the job site. When the plaintiff and
`the decedent were unable to enter the building through the front entrance, the decedent drove the
`vehicle through an opening in a fence onto the upper deck of an adjacent parking garage that was still
`under construction. When the vehicle was approximately halfway between the opening gate in the
`fence and the leading edge of the parking garage, the decedent informed the plaintiff that she could
`not stop. The vehicle slid on the ice until it reached the edge of the incomplete parking garage, broke
`through the steel cable guardrail system, and fell approximately 32 feet into an excavation pit in the
`location of the lower level of the garage. The plaintiff jumped out of the vehicle before it fell, and
`watched as the vehicle fell into the pit with the decedent, who screamed his name out while the
`vehicle fell and died at the scene (see Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 752).
`
`The plaintiff, individually and as the administrator of the decedent’s estate,
`subsequently commenced this action against, among others, Granite and Kulka to recover damages
`for personal injuries and wrongful death, alleging, inter alia, violations of Labor Law § 200 and
`common-law negligence. After a trial, the jury found that Granite and Kulka were both negligent,
`and apportioned 60% of the fault in the happening of the incident to Granite, 30% of the fault to
`Kulka, 10% of the fault to another defendant, and 0% to the decedent. The jury awarded, inter alia,
`damages in the sum of $500,000 for the decedent’s pre-impact terror, $3,000,000 for the plaintiff’s
`past pain and suffering, $3,000,000 for the plaintiff’s future pain and suffering, $1,495,000 for the
`plaintiff’s past and future economic loss, and $1,440,000 for the decedent’s past and future economic
`loss.
`
`Granite moved, inter alia, pursuant to CPLR 4404(a) to set aside the verdict as
`contrary to the weight of the evidence and for a new trial on the issue of liability on the ground that
`the Supreme Court should not have permitted the jury to consider a claim of liability against them
`that was barred as a matter of law by the “storm in progress” doctrine, as well as for a new trial or
`substantial remittitur of the awards for the decedent’s pre-impact terror, the plaintiff’s past and future
`pain and suffering, the plaintiff’s past and future economic loss, and the decedent’s past and future
`economic loss. Kulka separately moved, inter alia, pursuant to CPLR 4404(a) to set aside the
`verdict and for a new trial based on various alleged erroneous rulings made by the court, and/or to
`direct a new trial on the issue of damages on the ground that the verdict was excessive.
`
`In an order dated April 22, 2016, the court denied the motions of Granite and Kulka
`(hereinafter together the defendants) except to the extent that it directed a new trial on the issue of
`damages for the plaintiff’s past and future pain and suffering, the plaintiff’s past and future economic
`loss, and the decedent’s past and future economic loss, unless the plaintiff stipulated to reduce the
`damages for the plaintiff’s past and future pain and suffering to the sum of $3,000,000, the damages
`for the plaintiff’s past and future economic loss to the sum of $747,500, and the damages for the
`
`March 27, 2019
`
`SIMON v GRANITE BUILDING 2, LLC
`
`Page 3.
`
`

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`FILED: NEW YORK COUNTY CLERK 04/10/2019 04:51 PM
`NYSCEF DOC. NO. 193
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`INDEX NO. 153250/2015
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`RECEIVED NYSCEF: 04/10/2019
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`decedent’s past and future economic loss to the sum of $720,000. The defendants appeal.
`
`“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the
`interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence,
`mistakes in the charge, misconduct, newly discovered evidence, and surprise” (Russo v Levat, 143
`AD3d 966, 968; see Morency v Horizon Transp. Servs., Inc., 139 AD3d 1021, 1022-1023; Allen v
`Uh, 82 AD3d 1025, 1025).
`
` We agree with the Supreme Court’s denial of those branches of the defendants’
`motions which were pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability and
`for a new trial which were made on the ground that the plaintiff’s claim regarding the defendants’
`failure to plow and salt the parking deck should not have been submitted to the jury because said
`claim was barred as a matter of law by the storm in progress doctrine. The court did not err in
`submitting the issue of whether there was a storm in progress to the jury, as there was a triable issue
`of fact as to whether there was an ongoing storm at the time of the accident (see Arroyo v Clarke,
`148 AD3d 479; Calix v New York City Tr. Auth., 14 AD3d 583). In any event, the claim that there
`was a storm in progress was a defense to only one theory of liability presented to the jury, i.e., the
`failure to salt and plow the lot under construction. Based upon the evidence, there were other
`distinct and sufficient grounds, all of which were unrelated to the issue of the storm in progress, that
`were presented to the jury to provide them with a basis for a determination that the defendants’
`negligence in maintaining the property resulted in the vehicle sliding into the excavation pit (see e.g.
`Santiago v New York City Hous. Auth., 268 AD2d 203). These grounds included failing to ensure
`the fence to the parking garage under construction was closed, failing to have placed a barricade at
`the edge of the excavation pit, and allowing the drains to be taped closed causing the ice on which
`the plaintiff’s vehicle slid to form.
`
`“To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a
`defendant has the burden of showing that there is no rational process by which the jury could find
`in favor of the plaintiff and against the moving defendant” (Feteha v Scheinman, __ AD3d __, __,
`2019 NY Slip Op 01199, *1 [2d Dept 2019]; see Szczerbiak v Pilat, 90 NY2d 553). “In determining
`whether the defendant has met this burden, a court must accept the plaintiff’s evidence as true and
`accord the plaintiff the benefit of every favorable inference which can reasonably be drawn from the
`evidence presented at trial” (Feteha v Scheinman, __ AD3d at __, 2019 NY Slip Op 01199, *1; see
`Szczerbiak v Pilat, 90 NY2d at 556).
`
`Contrary to Kulka’s contention, the fact that it was the construction manager at the
`site did not absolve it of owing a duty of care to the plaintiffs, and entitle it to judgment as a matter
`of law dismissing the Labor Law § 200 and negligence claims against it. “Although a construction
`manager is generally not considered a contractor responsible for the safety of the workers at a
`construction site pursuant to Labor Law § 200, . . . it may nonetheless become responsible if it has
`been delegated the authority and duties of a general contractor, or if it functions as an agent of the
`owner of the premises” (Rodriguez v JMB Architecture, LLC, 82 AD3d 949, 950). “The label of
`construction manager versus general contractor is not necessarily determinative” (Walls v Turner
`Constr. Co., 4 NY3d 861, 864; see Lodato v Greyhawk N. Am., LLC, 39 AD3d 491, 493). Moreover,
`when a plaintiff’s injuries stem from dangerous premises conditions at a work site, the general
`
`March 27, 2019
`
`SIMON v GRANITE BUILDING 2, LLC
`
`Page 4.
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`

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`FILED: NEW YORK COUNTY CLERK 04/10/2019 04:51 PM
`NYSCEF DOC. NO. 193
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`INDEX NO. 153250/2015
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`RECEIVED NYSCEF: 04/10/2019
`
`may
`
`created
`
`coñtractor
`
`and
`
`either
`
`dangerous
`57 AD3d
`
`be
`
`held
`
`for
`
`a violation
`
`of
`
`Labor
`
`Law § 200
`
`if
`
`he
`
`or
`
`she
`
`had
`
`control
`
`over
`
`the
`
`work
`
`site
`
`the
`
`condition
`
`that
`
`caused
`
`the
`
`condition
`(see
`61; Wynne
`
`54,
`
`Hoñêymañ
`
`v State
`
`v Curiosity
`of New
`
`York,
`
`accident,
`
`Works,
`53 AD3d
`
`or had
`actual
`154 AD3d
`
`Inc.,
`
`656,
`
`657).
`
`or
`
`constructive
`
`notice
`
`of
`
`the
`
`820,
`
`822;
`
`Ortega
`
`v Puccia,
`
`Here,
`
`them
`
`have
`
`every
`found
`
`inference
`
`that
`
`Kulka
`
`passessed
`
`actual
`
`or
`
`viewing
`which
`
`the
`
`evidence
`
`in
`
`the
`
`light
`
`most
`
`favorable
`
`to
`
`the
`
`plaintiffs,
`
`may
`ftmetioned
`
`properly
`
`be
`
`drawn
`
`from
`
`the
`
`facts
`
`as
`
`a general
`
`contractor
`
`haviñg
`
`presented,
`
`control
`
`a rational
`
`over
`
`the
`
`work
`
`of
`
`caused
`
`the
`
`and
`
`affording
`could
`
`jury
`
`and
`
`site,
`and was
`
`constructive
`
`notice
`
`the
`
`dangerous
`
`conditions
`
`that
`
`negligent
`
`with
`
`regard
`
`to
`
`though
`
`Kulka
`
`was
`
`keeping
`designated
`
`the
`
`premises
`
`safe.
`
`a "construction
`
`The
`jury
`manager,"
`
`made
`
`it
`
`also
`
`a credibility
`acted
`
`accident,
`determination
`
`as
`
`a general
`
`contractor.
`
`even
`
`The
`
`jury's
`
`Connolly,
`
`the
`
`site,
`
`contractor,
`
`resolution
`17 AD3d
`and
`
`that
`
`of
`
`this
`
`322,
`
`323).
`
`credibility
`The
`
`issue
`
`against
`
`Kulka
`
`is
`
`entitled
`
`to
`
`deference
`
`(see
`
`Lalla
`
`testimony
`
`demonstrated
`
`that
`
`there
`
`was
`
`no general
`
`coñtracter
`
`Kulka,
`
`as
`
`construction
`
`manager
`
`of
`
`the
`
`and was
`
`responsible
`
`to make
`
`sure
`
`the
`
`job
`
`site
`
`safety.
`
`Also,
`
`Kulka
`
`was
`
`aware
`
`the
`
`fence
`
`had
`
`been
`
`property,
`was
`
`safe
`
`took
`
`on
`
`duties
`
`of
`
`a
`
`general
`
`and
`
`to make
`and was
`
`also
`
`recommeñdatiõns
`
`aware
`
`that
`
`at
`
`this
`
`that,
`
`v
`
`at
`
`regarding
`
`opened,
`
`stage
`
`of
`
`the
`
`construction
`
`the
`
`drains
`
`could
`
`be
`
`covered.
`
`Contrary
`
`to
`
`the
`
`defendants'
`
`contention,
`
`for
`
`his
`
`past
`
`and
`
`future
`
`pain
`
`and
`
`terror,
`
`do
`
`not
`
`deviate
`
`materially
`
`suffering,
`from
`
`what
`
`would
`
`be reaseñãble
`
`the
`
`the
`
`and
`
`reduced
`
`awards
`
`totaling
`
`$3,000,000
`
`award
`
`of
`
`$500,000
`
`for
`
`the
`
`decedent's
`
`compensation
`plaintiffs'
`
`the
`
`of
`
`to
`
`the
`
`pre-
`CPLR
`
`(see
`
`economist,
`
`Thruway
`
`past
`
`and
`
`Auth.,
`
`future
`
`228
`
`and
`
`plaintiff
`
`impact
`
`5501[c]).
`
`they
`AD2d
`
`627).
`
`Moreover,
`and
`
`economic
`
`Additi0ñally,
`
`although
`
`the
`
`defendants
`
`dispute
`
`failed
`
`to
`
`offer
`
`expert
`
`testimony
`reduced
`
`the
`
`of
`
`their
`
`awards
`
`own
`
`(see
`
`the methods
`v New
`
`Adams
`
`York
`
`State
`
`$720,000
`
`for
`
`the
`
`decedent's
`
`the
`
`reduced
`
`awards
`
`past
`
`and
`
`future
`
`economic
`
`loss,
`
`loss,
`
`did
`
`not
`
`of Suffolk,
`
`deviate
`AD3d
`
`163
`
`materially
`
`893).
`
`from
`
`what
`
`totaling
`would
`
`totaling
`$747,500
`
`for
`
`the
`
`plaintiff's
`
`be
`
`reasonable
`
`compensation
`
`(see
`
`Vatalaro
`
`v County
`
`Any
`
`error
`
`in
`
`the
`
`admission
`
`of
`
`certain
`
`we are
`
`satisfied
`
`that
`
`the
`
`result
`
`Rosenberg
`
`v Jing
`
`Jiang,
`
`153
`
`would
`AD3d
`
`have
`
`been
`
`744,
`
`745;
`
`testimony
`same
`the
`CPLR 2002).
`
`if
`
`and
`
`jury
`
`instructions
`
`is
`
`harmless,
`
`the
`
`alleged
`
`errors
`
`had
`
`not
`
`occurred
`
`as
`
`(see
`
`defendants'
`
`The
`
`remaining
`
`contentions
`
`either
`
`are without
`
`merit
`
`or have
`
`been
`
`rendered
`
`academic
`
`in
`
`light
`
`of
`
`our
`
`determination.
`
`MASTRO,
`
`J.P.,
`
`COHEN,
`
`MALTESE
`
`and CHRISTOPHER,
`
`JJ.,
`
`concur.
`
`ENTER:
`
`Aprilanne
`
`Agostino
`
`Clerk
`
`of
`
`the
`
`Court
`
`March
`
`2019
`
`27,
`
`Page
`
`5.
`
`SIMON
`
`v GRANITE
`
`BUILDING
`
`2, LLC
`
`