Curtis v. 37th Street Associates

198 A.D.2d 62, 603 N.Y.S.2d 438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1993
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Martin Stecher, J.), entered July 23, 1992, which, inter alia, awarded plaintiff Don Curtis $500,000 in damages for past and future pain and suffering, and which granted common-law indemnification in favor of third-party plaintiff, Ryder Construction, Inc. ("Ryder”) against third-party defendants Budget Alterations and Improvements, Inc. and Precision Interiors ("Budget”), unanimously affirmed, without costs.

Contrary to Budget’s contention, Ryder’s liability for plaintiff’s damages was solely statutory pursuant to Labor Law § 240 (1). Indeed, there is no evidence which demonstrates that any of Ryder’s employees were responsible for plaintiff’s safety, supervision or direction at the worksite. Ryder’s construction superintendent merely coordinated the subcontractors’ activities and periodically checked the work to make sure that it proceeded on schedule pursuant to the contracts and blueprints. However, such activities do not amount to the type of supervision necessary to establish Ryder’s common-law liability for the injuries sustained by plaintiff at the worksite (see, Damon v Starkweather, 185 AD2d 633). Therefore, pursuant to principles of common-law indemnification, Budget, the entity responsible for the accident, must indemnify Ryder, the statutorily liable party (Kelly v Diesel Constr. Div., 35 NY2d 1). Finally, we note in passing that Budget, pursuant to contract, was obligated to comply with the safety obligations of the Labor Law.

We find, as did the trial court, that although the jury’s award for pain and suffering was somewhat high, it does not materially deviate from reasonable compensation under the circumstances (CPLR 5501 [c]). Concur — Sullivan, J. P., Asch, Ross and Nardelli, JJ.