David M. Bonczar v. American Multi-Cinema

• Court: New York Court of Appeals
• Decided: April 28, 2022
• Docket: 26
• Status: Published

Opinion

State of New York MEMORANDUM Court of Appeals This memorandum is uncorrected and subject to revision before publication in the New York Reports.

No. 26 David M. Bonczar, Appellant, v. American Multi-Cinema, Inc., &c., Respondent.

John A. Collins, for appellant. Josh H. Kardisch, for respondent.

MEMORANDUM:

The 2020 order of the Appellate Division should be affirmed, with costs.

Plaintiff David Bonczar was injured when he fell from a ladder while retrofitting a

fire alarm system working at a movie theater. After climbing up and down to the third or

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fourth step of the ladder several times without issue, he began to descend a final time when

the ladder shifted and wobbled. Plaintiff fell and was injured.

Plaintiff brought this action seeking damages against defendant for violating Labor

Law § 240 (1) and moved for partial summary judgment as to that claim. Supreme Court

granted partial summary judgment on the issue of section 240 (1) liability for plaintiff. The

Appellate Division reversed, with two Justices dissenting, holding that plaintiff failed to

show he was entitled to judgment as a matter of law (158 AD3d 1114, 1115 [4th Dept

2018]). The court held a factual issue existed as to whether a statutory violation had

occurred and if plaintiff’s own acts and omissions, particularly as to the ladder’s

positioning and plaintiff’s failure to check the ladder’s locking mechanisms, were the sole

proximate cause of his injury (id.).

On remand, plaintiff’s Labor Law § 240 (1) claim was tried to a jury. At the close

of evidence, plaintiff moved for a directed verdict. The court reserved judgment and the

jury returned a verdict for defendant, finding no violation of Labor Law § 240 (1) and that

plaintiff’s failure to position the ladder properly was the sole proximate cause of plaintiff’s

injuries. Supreme Court denied plaintiff’s motion to set aside the verdict as against the

weight of the evidence. The Appellate Division unanimously affirmed the judgment in

defendant’s favor entered upon the verdict (185 AD3d 1423 [4th Dept 2020]). We granted

plaintiff leave to appeal (see CPLR 5602 [a] [1] [i]).

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Plaintiff seeks review of both the 2018 Appellate Division order denying him partial

summary judgment and the 2020 Appellate Division order affirming the judgment entered

upon the jury verdict.

The 2018 Appellate Division order may be reviewed on appeal from a final paper

only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final

judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily

affects’ requirement” (Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37, 41-

42 [2012]) and “[w]e have never attempted, and we do not now attempt, a generally

applicable definition” (Oakes v Patel, 20 NY3d 633, 644 [2013]). That said, to determine

whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior

order “str[uck] at the foundation on which the final judgment was predicated” we have

inquired whether “reversal would inescapably have led to a vacatur of the judgment” (see

Matter of Aho, 39 NY2d 241, 248 [1976]; see also Matter of Tyrone D. v State of New

York, 24 NY3d 661, 666 [2015]; Arthur Karger, Powers of the New York Court of Appeals

§ 9:5, at 300 [3d ed rev 2005]). This is not such a case. In other cases, we have asked

whether the nonfinal order “necessarily removed [a] legal issue from the case” so that

“there was no further opportunity during the litigation to raise the question decided by the

prior non-final order” (Siegmund Strauss, Inc., 20 NY3d at 41; see also Oakes, 20 NY3d

at 644-645).

In resolving plaintiff’s summary judgment motion, the Appellate Division held that

factual questions existed as to whether a statutory violation occurred and as to proximate

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cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole

proximate cause of the accident (Bonczar, 158 AD3d at 1115). That nonfinal order did not

remove any issues from the case. Rather, the question of proximate cause and liability was

left undecided. The parties had further opportunity to litigate those issues and in fact did

so during the jury trial.1 Accordingly, the Appellate Division order denying summary

judgment did not necessarily affect the final judgment and thus, this Court cannot review

the 2018 Appellate Division order (see Kountz v State Univ. of N.Y., 58 NY2d 747 [1982]).2

The judgment was properly affirmed. A rational trier of fact could have found in

defendant’s favor on the Labor Law § 240 (1) claim (see Szczerbiak v Pilat, 90 NY2d 553,

556 [1997]; Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

The 2020 order of the Appellate Division affirmed, with costs, in a memorandum. Chief Judge DiFiore and Judges Rivera, Garcia, Wilson, Singas and Cannataro concur. Judge Troutman took no part.

Decided April 28, 2022

1 Both parties additionally submitted evidence beyond that on the record at the time of the summary judgment motion. 2 Accordingly, no appeal lies pursuant to CPLR 5601 (d) and, on the appeal properly before the Court pursuant to CPLR 5602 (a) from the final 2020 Appellate Division order, we do not review the nonfinal 2018 Appellate Division order. -4-