On August 11, 2008, plaintiff, Freddy Figueroa, a thirty year old sprinkler system installer, employed by Professional Irrigation, was injured while excavating a trench in the backyard [*2]of the home owned by Daniel and Maryann Conti, when a stone retaining wall adjacent to the trench collapsed injuring plaintiff's left ankle and foot. The two foot deep trench was to be used to bury electric lighting conduits and was part of a $350,000 project at the Conti's Suffolk County home. The project included the re-design of a gunite pool as well as building a patio, deck, fencing, five retaining walls and landscaping in the rear yard of their property. The Contis engaged the services of Ireland-Gannon ("IG") to design the project. HLM Electric was the electrical contractor on the project, the retaining walls and patio were built by Syrbescapes, a masonry company, and Professional Irrigation was the irrigation contractor. IG designed the landscaping and the retaining walls, created the blueprints, had the plans approved by an architect and submitted its plans to the village for approval. The plans submitted for approval by IG indicated, inter alia, that the fieldstone retaining wall in question would be three and half feet high, would be built with random laid fieldstones and mortared with recessed joints.

Syrbescapes, the masonry contractor built the retaining wall in May and June 2008, however, it was not built according to the approved plans. After the plans were approved, Mr. Morgan the plan designer from IG requested that the mason build a dry stack wall. The footing for the dry stack wall was not as deep as the plan called for and the wall was not built with mortar but rather, it was built as a "dry-stack" stone wall which plaintiff's expert testified had less stability and strength. Plaintiff contends that IG changed the plans after they were approved and directed that the mason build the dry stack wall which they felt was more appropriate due to the sandy composition of the soil in the region. IG did not submit modified plans to the building department.

IG also designed the lighting plans and HLM Electric was hired by the Contis to execute the plans. PI was hired by the Contis to dig trenches for the electrical wiring and for irrigation installation. Testimony indicated that on August 8, 2008, Dennis Realmuto from PI met with Bart Visser the on-site foreman for IG and discussed the location of a trench that would be dug in front of the retaining wall in question. On August 11, 2008, plaintiff, an employee of PI, was at the work site to dig the trench which was to be used for electrical conduits. Based upon the electrical code, the trench was required to be 2 feet deep. On the date of the accident, Bart Visser from IG was also on the property supervising the landscaping. Figueroa and a co-worker Miguel began removing plants from in front of the retaining wall and began to excavate a two foot deep trench [*3]directly in front of the dry stack retaining wall. According to expert testimony, because the topsoil in that location was sandy and the trench was deeper than the footing of the wall and as the wall had no mortar, the wall suddenly shifted and collapsed into the trench pinning Figueroa in the trench. Figueroa sustained a fractured fibula and crush injuries to his foot. Due to the injuries to his left ankle and foot, Figueroa underwent three surgical procedures, three hospitalizations and an extensive period of rehabilitation. He used crutches to ambulate for a year and a half after the accident and continues to use a cane. Testimony showed that his injuries require lifetime medical care. The expert testimony was to the effect that Figueroa, who was earning $170.00 per day and had a 25 year future work life, cannot return to work as a construction laborer.

Plaintiff commenced the instant action by filing a summons and complaint on October 1, 2008 naming HLM Electric, Syrbescapes, IG and the Contis as defendants. The complaint alleged common law negligence as well as violations of Labor Law §§ 200, 240 and 241(6). The defendants moved, prior to trial for summary judgment and by decision dated April 19, 2012, Justice Rosengarten dismissed the complaint against the Contis holding that they did not direct the work of the contractors, denied the motion against IG and HLM and dismissed the Labor Law §§ 240 and 241(6) against Sybrescapes.

At trial there was expert testimony to the effect that IG was the construction general contractor and construction manager and that plaintiff's supervisor, PI, was directed by IG as to their work. IG argued at the end of the case for a dismissal under Labor Law § 240 and 241(6) arguing that this was not a construction site as to IG as the retaining wall was built prior to plaintiff's accident and there was no structure incidental to excavation, and that the retaining wall had nothing to do with the trench being dug by PI and HLM. This Court dismissed the Labor Law § 240 claim against IG but denied the motion with respect to Labor Law 241(6). The court also dismissed the Labor Law § 200 claim against Syrbescapes.

On May 9, 2012, the jury returned its verdict finding IG liable under Labor Law §§ 200 and 241(6) and common law negligence. The jury also found HLM and Sybrescapes not negligent and found no comparative negligence on the part of the plaintiff. After the damages portion of the trial, the jury returned a verdict on May 30, 2012 awarding the plaintiff $1,000,000 for past pain and suffering and $1,280,000 for future pain and suffering (40 years). The jury also awarded plaintiff $164,000 for past lost wages and $307,020 for future lost wages for 7 [*4]years as well as $360,000 for future medical expenses(20 years).

IG now moves to set aside the verdict on liability on the ground that it is contrary to the weight of the evidence. Counsel for IG, James R. Callan, Esq, argues that the testimony at trial was not legally sufficient to prove that IG exercised supervision and control such that a jury could validly conclude that IG was liable to the plaintiff under common-law negligence or pursuant to Labor Law §§ 200 and 241(6). Counsel claims that the work giving rise to the plaintiff's injury, to wit, excavating the ditch, was outside the scope of IG's contract and therefore said defendant did not have contractual authority to exercise control over the activity giving rise to the plaintiff's injury. Further, counsel asserts that PI's witnesses testified that it solely controlled the location of the trench and the manner of the digging and therefore the jury could not have rationally concluded that IG controlled and supervised the manner and location of the trench from which plaintiff's accident and injuries arose. Moreover, defendant argues that the proof was insufficient to show that IG was the general contractor on the project or the construction manager and as IG did not exercise supervision and control they are not liable for common law negligence or liable pursuant to Labor Law § 200. IG argues that it was not a construction manager as there was no contract to that effect and because it did not perform the duties of a construction manager. Counsel asserts that the plaintiff's own employer, PI, was responsible for managing and supervising the plaintiff on this project. Counsel contends that based on the evidence there was no valid line of reasoning or permissible inferences which could lead the jury to conclude that IG was liable pursuant to Labor Law § 200.

IG also states that they are not liable under Labor Law § 241(6) for the alleged violation of the Industrial Code section alleged to have been violated. Said section states that no excavation shall be performed in the vicinity of the structure unless the integrity, stability, and structural adequacy of the structure is maintained by the use of underpinning, sheet pilling, bracing or other equivalent means to prevent failure of walls and to prevent injury to any person. IG contends in this regard that the trench was dug in the location abutting the retaining wall without IG's knowledge or supervision and therefore it did not violate the industrial code. Counsel contends that the evidence shows that HLM and PI rather than IG chose the location of the trench to bury the electrical lines. Further, counsel asserts that digging an 8 inch wide trench to bury electrical conduits is not considered excavation pursuant to the industrial code violation alleged under Labor Law 241(6). [*5]Counsel also alleges that the jury's verdict was inconsistent in finding that HLM was not negligent and finding that IG was the only defendant liable for the accident. Counsel states that as the evidence showed that IG had no control over the supervision of the work that the court should not have charged the jury with Labor Law §§ 200 and 241(6).

With respect to damages, counsel contends that the evidence at trial was insufficient to permit plaintiff to recover for lost earnings as the only evidence submitted was 11 pay stubs purporting to show plaintiff's daily and weekly salary. Counsel claims that without producing W-2s or tax returns the amount of damages for lost earnings was not established with reasonable certainty and therefore the jury's verdict in this regard was speculative and based only upon the plaintiff's conclusory testimony. Counsel also claims that without a vocational expert the jury's verdict with respect to how long the defendant might reasonably be expected to remain unemployed was based only upon the jury's own speculation.

Lastly, defendant contends that the damages awarded to the plaintiff for past and future pain and suffering and for future medical expenses deviated materially from what would be reasonable and is excessive in light of the evidence adduced at trial. Citing Fishbane v Chelsea Hall, 65 AD3d 1079 [2d Dept. 2009] and Venable v NYC Transit, 165 AD2d 871 [2d Dept. 1990], counsel states that the jury's verdict deviated materially for what the Appellate Division has found is reasonable compensation for a trimalleolar ankle fracture.

In opposition to the motion, HLM Electric who was found by the jury not to be liable for the plaintiff's injuries, submits a post-trial memorandum stating that HLM was retained by the owners of the property to install the outdoor lighting fixtures and states that the testimony showed that HLM did not play any role in the placement or layout of the fixtures designed by IG as part of its contract with the homeowners. HLM states that according to the testimony, IG chose the lighting locations while the location of the trenches was determined by PI. Counsel states that the complaint was properly dismissed against HLM as it did not play a role with respect to the placement of the trench and further asserts that plaintiff's own actions were the sole proximate cause of the accident. Counsel for HLM, John M. Shields, Esq., states that the dismissal against HLM was supported by a fair interpretation of the evidence. HLM contends that it had no supervisory control over the work being done when the plaintiff was injured and thus was not liable pursuant to the Labor Law. [*6]Counsel contends that it was PI who admitted that they and not HLM retained sole supervisory authority over the placement of the trench and work being performed by the plaintiff at the time of his accident. Thus, counsel asserts that the plaintiff's complaint and the claims against HLM must remain dismissed in their entirety as well as any cross-claims asserted by the remaining defendants.

In opposition, plaintiff's counsel, Sauren Israelyan, Esq., submits an affirmation stating that in evaluating the legal sufficiency of the evidence the Appellate Division, Second Judicial Department holds that "a motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial. Additionally, a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence" (see Vittiglio v Gaurino, 100 AD3d 987 [2d Dept. 2012]; Vasquez v County of Nassau, 91 AD3d 855 [2d Dept. 2012]; Sydnor v Home Depot U.S.A., Inc., 74 AD3d 1185 [2d Dept. 2010]). "To be awarded judgment as a matter of law pursuant to CPLR 4404 (a), a defendant has the burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving defendant" (see Christ v Law Offs. of William F. Levine & Michael B. Grossman, 72 AD3d 721 [2d Dept. 2010]). "Further the Court has held that, where the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" [2d Dept. 2009] quoting (Koopersmith v General Motors Corp., 63 AD2d 1013 [2d Dept. 1978]).

Upon review and consideration of defendant IG's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this Court finds that there was sufficient evidence adduced at trial from which the jury could have reasonably concluded that IG was the general contractor of the project and that IG had the authority to supervise or control the work being performed including the work being performed by HLM and PI.

Labor Law § 200 is a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Kim v. Herbert Constr. Co., 275 AD2d709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 maybe [*7]imposed on those who exercise control or supervision over the means and methods that plaintiff employs in his work (see Rizzutov L.A. Wenger Contr. Co., supra at 352; Russin v Louis. Picciano & Son, 54 NY2d 311, 317 [1981]; Cabrera v. RevereCondominium, 91 AD3d 695 [2012]), or who have actual or constructive notice of an unsafe condition that causes an accident (see Gray v City of New York, supra at 679-680 [2011]).

Thus under Labor Law 200 and common law negligence where, as here, the claim arises out of the means, and methods of the work, the defendant may be held liable for a construction accident where it has the authority to supervise or control the performance and manner of the work even where the party does not exercise supervisory authority (See Clavijo v Universal Baptist Church, 76 AD3d 990 [2d Dept. 2010]). Further, the defendant may be held liable for common law negligence based upon a dangerous condition on the premises where there is evidence showing that the contractor had actual or constructive notice of the dangerous condition (see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47 [2d Dept. 2011]). Here, there was sufficient proof to show that IG was responsible for the design of the retaining wall and originally submitted a plan to have the retaining wall constructed with mortar. However Mr. Morgan of IG did not give a copy of the approved plans to Syrbescapes and instead instructed the masonry company to build a dry stack wall which an expert testified was not as stable as the wall called for in the approved plans. The testimony showed that the retaining wall also deviated from the plan in its dimensions and footing depth. The testimony showed that the wall, as built, was less stable and more subject to overturning than the wall as designed. Therefore, there is a reasonable view of the evidence that IG's failure to construct the wall as designed was a substantial factor in causing the accident. Plaintiff's expert testified that in his opinion the wall would not have collapsed due to the tench being dug next to it had it been built according to plan. There is a valid line of reasoning and permissible inferences for the jury to have found that IG supervised the building of the wall, that the retaining wall which was built deviated from the design plans and that IG the supervisor of the project had notice that the wall was negligently constructed and that IG was negligent in permitting the wall to remain in dangerous condition and thus in failing to provide a safe place to work (see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47 [2d Dept. 2011]).

Further with respect to Labor Law § 200 and 241(6) this court finds that the was a reasonable view of the evidence that IG was responsible for the overall coordination and sequencing of the events including the work performed by HLM and PI. Moreover, [*8]IG was at the worksite on the date of the accident and discussed the location of the trench between the patio and the retaining wall with workers from the employers company PI. Visser testified that he was aware of the sandy composition of the soil where the trench was going to be dug near the retaining wall and did not advise PI of the composition of the soil or the depth of the footing. The expert testimony showed that one reason the wall collapsed was because of the sand under the footing and the jury could reasonably concluded that IG was negligent in failing to advise PI of the dangerous condition of the wall and that it was unsafe to excavate in the area adjacent to the retaining wall and that said negligence was a substantial factor in causing the plaintiff's accident.

In addition, there was sufficient evidence adduced at the trial for the jury to have found that IG was the general contractor, selected the sub contractors, coordinated the work of the contractors and had the authority to direct and supervise the work including supervising the work of PI's workers (see Clavijo v Universal Baptist Church, 76 AD3d 990 {2d Dept. 2010]). Plaintiff himself testified that Visser supervised the digging of the trench. Plaintiff's expert Mr. Cannizaro also testified that IGs role was one of general contractor and construction manager.

To recover under Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision, which sets forth specific, applicable safety standards, in connection with construction, demolition, or excavation work (see Ross v.-4-Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-505 [1993]). With respect to Labor Law 241(6) there was a reasonable view of the evidence that IG violated the industrial code provision, Section 23-1.4(b)(13) which requires that buildings and structures in the vicinity of excavation work be properly supported to prevent injuries to persons. Here it is clear that the plaintiff was involved in excavating the property near the wall and as the wall was not properly supported or braced with appropriate underpinnings it collapsed. Thus, there was view of the credible evidence that IG as the supervisor of the project violated the Industrial code section, failed to provide reasonable and adequate protection and safety to the plaintiff and therefore, the jury rationally found that the IG violated Labor Law § 241(6)(see Reyes v Arco Wentworth Mgt. Corp., 83 ADd3d 47 [2d Dept,. 2011]) and that violation was a substantial factor of the plaintiff's accident.

Accordingly, for all of the above stated reasons, this court finds that the evidence was legally sufficient to establish each cause of action for which the defendant was held to be liable and [*9]the verdict was not against the weight of the evidence as the jury could have reached its verdict based upon a fair interpretation of the evidence.

With respect to damages, the Second Department has held that "the amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation" (see Guallpa v Key Fat Corp., 98AD3d 650 [2d Dept. 2012]; Graves v New York City Tr. Auth., 81 AD3d 589 [2d Dept. 2011]).

This Court finds that the jury's verdict for loss of earnings was established with reasonable certainty based upon the testimony of the plaintiff, plaintiff's employer and the pay stubs in evidence. This court also finds that the verdict for past and future pain and suffering did not deviate materially from what would be reasonable compensation (see CPLR 5501). Here, the plaintiff sustained a fractured ankle, torn ligaments, a crush injury, damage to the ligaments, vessels, muscles, nerves veins, and all structures of the leg, was hospitalized on three occasions for three separate surgeries followed by extensive rehabilitation. The testimony showed that two future surgeries are planned one for excision of a neuroma and one for fusion of the ankle which could permanently alter the way in which the plaintiff walks. The plaintiff's expert testified that he sustained a fracture of the fibula, and injuries to the ligaments around the ankle. The expert testified that plaintiff required surgery to put the ankle back in place and put screws in the ankle to hold the ligaments in place while they healed. The first surgery was to repair torn ligaments. A second surgery was required for screw removal and to relive the neuroma caused by scar tissue to improve numbness in the foot. The third surgery was to repair lateral ligaments in the ankle. Plaintiff's orthopedic surgeon testified that the prognosis is for progressive arthritis and that the plaintiff will never regain full operation of motion of the ankle. The physician stated that the injury is permanent and that due to the arthritis ankle fusion would be necessary in the future. The expert testified that in his opinion due to his injuries the plaintiff will never be able to go back to his profession as a laborer. (See De La Cruz v. New York City Tr. Auth., 11 Misc 3d 1086A affd 48 AD3d 508 [2d Dept. 2008). This court also finds that the jury's for future medical expenses was adequately supported by the evidence.

Accordingly, for all of the above stated reasons the defendant's motion for an order pursuant to CPLR 4404 setting aside the jury verdict on liability as against the weight of the [*10]evidence and/or for an order granting a reduction of the verdict on damages pursuant to CPLR 5501 as excessive is denied in its entirety.

Dated: February 19, 2013

Long Island City, NY

___________________

ROBERT J. MCDONALD

J.S.C.