The opinion
Bortugno v Schindler El. Corp.
2025 NY Slip Op 30172(U)
January 17, 2025
Supreme Court, New York County
Docket Number: Index No. 150623/2013
Judge: Hasa A. Kingo
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
FILED: NEW YORK COUNTY CLERK 01/17/2025 04:50 PM INDEX NO. 150623/2013
NYSCEF DOC. NO. 579 RECEIVED NYSCEF: 01/17/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
---------------------------------------------------------------------------------X INDEX NO. 150623/2013
NICHOLAS BORTUGNO,
MOTION DATE 01/14/2025
Plaintiff,
MOTION SEQ. NO. 018
-v-
SCHINDLER ELEVATOR CORPATION, MIDLAND
DECISION + ORDER ON
ELEVATOR CO INC,
MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 018) 530, 531, 532, 533,
534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554,
555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 574, 575, 576,
577, 578
were read on this motion to SET ASIDE VERDICT .
Defendants Schindler Elevator Corporation and Midland Elevator Co., Inc. (“Defendants”)
move this court, pursuant to CPLR § 4404(a), for judgment notwithstanding the verdict or, in the
alternative, for a new trial. Specifically, Defendants seek an order: (1) setting aside the jury’s
verdict in favor of Plaintiffs Nicholas (“Mr. Bortugno”) and Josephine Bortugno (“Mrs.
Bortugno”) (collectively “Plaintiffs”); (2) entering judgment as a matter of law in favor of
Schindler Elevator Corporation; (3) ordering a new trial on liability and damages; or (4) reducing
the damages awarded for future loss of earnings, pain and suffering, and loss of services.
Defendants argue that the jury’s verdict was inconsistent, unsupported by evidence, and tainted by
erroneous rulings on evidentiary and procedural matters. Plaintiffs oppose the motion in all
respects, arguing that the jury’s verdict is consistent, supported by substantial evidence, and based
on proper application of the law. For the reasons set forth below, the court primarily denies
Defendants’ motion, upholds the jury’s verdict, and finds that the evidence and law fully support
the outcome.
BACKGROUND AND PROCEDURAL HISTORY
This case arises from a January 19, 2012, incident in which Mr. Bortugno sustained injuries
to his head when a descending freight elevator gate (Elevator F105) at the James A. Farley
Building in Manhattan struck him as he was pushing a cart into the elevator. Plaintiffs alleged that
the elevator’s warning light and alarm failed to function, rendering the elevator unsafe and causing
the accident. Defendant Schindler Elevator Corporation (“Schindler:”) was under contract to
maintain the elevator, and Midland Elevator Co. (“Midland”), Inc. had previously performed
maintenance on it. Plaintiffs claimed Defendants were negligent in failing to ensure the safety of
the elevator.
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The claims against the premises defendants, including the New York State Urban
Development Corporation and Moynihan Station Development Corporation, were dismissed on
summary judgment in 2019. The court found those defendants had no notice of any defect in the
elevator. However, claims against Schindler and Midland proceeded to trial.
The first trial in 2023 resulted in a hung jury. A retrial was held in November 2024,
culminating in a jury verdict in favor of Plaintiffs against Schindler, with no liability found against
Midland. The jury awarded Plaintiffs significant damages, reduced by 20% based on comparative
negligence attributed to Mr. Bortugno. Defendants now seek to overturn or modify the verdict.
TRIAL TESTIMONY AND JURY CHARGE
The jury’s verdict is strongly supported by the evidence adduced at trial, which was
presented in a manner that adhered to the highest standards of legal procedure.
Testimony from Mr. Bortugno established key facts about the failure of the elevator’s
safety systems. Mr. Bortugno testified that as he was pushing a cart into the elevator, the warning
light and alarm—critical safety features designed to prevent such incidents—failed to activate. His
credible and consistent account was corroborated by multiple entries in Schindler’s maintenance
logs, which documented recurring issues with “force discrepancies” and “alignment problems”
associated with Elevator F105. The jury reasonably inferred that these unresolved maintenance
issues directly contributed to the accident (Trial Tr. 315:5–318:20; 784:3–795:15).
The expert testimony of Patrick Carrajat (“Mr. Carrajat”), a seasoned elevator consultant,
further reinforced Plaintiffs’ case. Mr. Carrajat explained the industry standards for elevator
maintenance and opined that Schindler’s repeated failure to address known defects constituted a
clear departure from those standards. He identified specific deficiencies in Schindler’s inspection
and repair protocols, demonstrating how these lapses likely led to the malfunction of the warning
systems. His conclusions were based on a detailed review of service records and site inspections,
providing the jury with a sound basis for their findings of negligence (Trial Tr. 801:12–809:3).
Moreover, Plaintiffs presented evidence of Schindler’s exclusive control over the elevator
and its components, a critical element in the application of res ipsa loquitur. Maintenance contracts
and internal records confirmed that Schindler was solely responsible for ensuring the safety and
proper functioning of Elevator F105. This evidence supported the jury’s inference that the accident
could not have occurred absent Schindler’s negligence (Trial Tr. 456:7–458:10).
The court’s jury instructions were clear, comprehensive, and entirely consistent with New
York law. The charge on res ipsa loquitur carefully articulated the doctrine’s three elements,
emphasizing that the jury could draw an inference of negligence if they found that the accident
was of a kind that ordinarily does not occur in the absence of negligence, that Schindler had
exclusive control over the elevator, and that Mr. Bortugno’s actions were not the sole cause of the
incident (Trial Tr. 1123:14–1127:6).
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Additionally, the jury charge on comparative negligence appropriately framed the jury’s
task of apportioning fault. Evidence presented at trial suggested that while Mr. Bortugno may not
have exercised full caution while entering the elevator, his actions were not the proximate cause
of the accident. The jury’s allocation of 20% comparative fault reflects a reasoned assessment of
the evidence and demonstrates their careful consideration of all relevant factors (Trial Tr. 1221:9–
1225:15).
The court’s evidentiary rulings further ensured a fair and impartial trial. Defendants’
attempts to introduce post-incident repair evidence were properly excluded under New York law,
which prohibits the admission of subsequent remedial measures to prove negligence (see Kaplan
v. Einy, 209 AD2d 248, 252 [1st Dept 1994]). The exclusion of such evidence prevented undue
prejudice and maintained the focus on the conditions existing at the time of the accident.
In sum, the trial record demonstrates that the jury’s verdict was based on substantial
evidence, guided by legally correct instructions, and reached through a fair and impartial process.
The trial proceedings adhered to procedural and substantive legal standards, providing a sound
basis for upholding the verdict.
DISCUSSION
I. Alleged Inconsistent Verdict
Defendants assert that the jury’s verdict was internally inconsistent because it found that
Mr. Bortugno’s negligence was not a substantial factor in causing the accident, yet allocated 20%
comparative fault to him.
A. Failure to Timely Object to Verdict Inconsistency
As a threshold issue, the court notes that Defendants’ failure to object to the verdict’s
alleged inconsistency prior to the discharge of the jury is fatal to their request for a new trial on
this basis. Under New York law, a party waives its right to challenge a verdict as inconsistent if it
does not raise the issue while the jury is still empaneled, thereby forfeiting the opportunity for the
jury to clarify its findings (see Barry v. Manglass, 55 NY2d 803, 806 [1981] [holding that failure
to object to an allegedly inconsistent verdict before the jury is discharged precludes appellate
review of the issue]).
Here, the trial transcript reflects no contemporaneous objection by Defendants regarding
the alleged inconsistency of the jury’s findings. Specifically, Defendants did not raise this issue
before the jury was discharged, thus forfeiting any claim that the verdict should be set aside on
this ground. Plaintiffs note, and this court agrees, that had Defendants promptly raised their
concerns, the court could have addressed the alleged inconsistency by seeking clarification or
further deliberation from the jury. This procedural safeguard, enshrined in New York
jurisprudence, ensures that trial courts can correct potential errors at the moment they arise (see
Everding v. Bombard, 272 AD2d 937 [1st Dept 2000][noting that post-verdict objections must be
raised while the jury is still available to avoid waiving the issue]; see also Arrieta v. Shams
Waterproofing, Inc., 76 AD3d 495, 496 [1st Dept 2000][“[a] party is required to preserve a claim
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that a verdict is inconsistent. In order to serve as a predicate for appeal, the issue must be raised
before the discharge of the jury so that the trial court may take corrective action to cure the
inconsistency, including resubmitting the matter to the jury”]; Schley v. Steffans, 79 AD3d 1753,
1753 [1st Dept 2010][“[p]laintiff failed to preserve for our review [her] contention that the verdict
is inconsistent because she did not object to the verdict on that ground before the jury was
discharged]).
Moreover, the court instructed the jury with precision regarding its obligations to assess
fault and causation independently. These instructions, coupled with the detailed verdict sheet,
provided a clear framework for the jury’s deliberations. Plaintiffs point to testimony establishing
that Mr. Bortugno’s comparative fault related to his actions in entering the elevator but did not rise
to the level of proximate cause of the accident. This distinction was squarely within the jury’s
province to evaluate, and Defendants’ failure to object during this process underscores the
propriety of the verdict (Trial Tr. 1221:9–1225:15).
Defendants’ failure to raise a timely objection to the alleged inconsistency in the verdict is
fatal to their belated application for relief (see Barry v., 55 NY2d 803, supra; Arrieta, 76 AD3d
495, supra). Indeed, Defendants’ failure to object prior to the jury’s discharge precludes this court
from returning the matter to the jury for clarification, thereby waiving the objection.
Defendants’ reliance on cases such as Scarpati v. Kim, 124 AD3d 866 (2d Dept 2015), is
misplaced. In Scarpati, the jury returned an inconsistent verdict, was instructed to reconsider,
returned a second verdict, and upon polling demonstrated “substantial confusion among the
jurors.” Here, no such confusion occurred. The jury sent a single note, received re-instruction, and
promptly delivered a unanimous verdict without further issue. Moreover, Scarpati is not
controlling on this court, as it is an Appellate Division, Second Department, authority rather than
an Appellate Division, First Department, authority.
Similarly, in Rodriguez v. F.D.R. Temple Assoc., Inc., 24 Misc.3d 110 (Sup. Ct., App.
Term, 1st Dept 2009), the trial court improperly reallocated liability after dismissing a defendant,
necessitating a retrial. No such judicial intervention occurred here.
In Allen v. Lowczus, 118 AD3d 1258 (1st Dept 2014), the plaintiff sought a new trial due
to the jury’s damages award despite finding her negligence non-substantial. Unlike Allen,
Defendant here failed to object during trial and only challenges alleged inconsistencies post hoc.
Appellate Division, First Department, precedents emphasize that new trials on such grounds are
warranted only where timely objections were raised, and the trial court improperly denied a request
to resubmit the case (see, e.g., Dubec v. N.Y.C. Hous. Auth., 39 AD3d 410 [1st Dept 2007]; Davis
v. New York City Hous. Auth., 3 AD3d 356 [1st Dept 2004]). Defendant made no such objection
here, requiring denial of its motion for a new trial.
Considering Defendants’ procedural default and the substantial evidence supporting the
jury’s findings, this court finds no basis to disturb the verdict on the ground of inconsistency.
Plaintiffs’ argument is persuasive, and the case law supports the conclusion that Defendants’
failure to object at the appropriate time precludes their current challenge.
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B. Misinterpreting the Jury’s Findings
Even if Defendants’ objection had been timely, their argument misinterprets the jury’s
findings. The jury’s conclusion that Mr. Bortugno’s negligence was not a substantial factor relates
to the proximate cause of the accident, whereas the apportionment of comparative fault reflects a
separate inquiry into whether Mr. Bortugno failed to exercise reasonable care for his safety. The
court’s jury instructions, based on PJI 2:70, made this distinction clear. Indeed, the sufficiency of
the charge on comparative negligence was underscored by testimony showing that while Mr.
Bortugno did not check above before entering the elevator, his actions were consistent with
expectations given the defective warning system. The jury, therefore, acted within its discretion in
attributing partial, but not primary, fault to him. As such, the jury’s apportionment of fault and
determination of damages were consistent with both the evidence and applicable legal principles.
Notably, New York law permits a jury to assign comparative fault even where the
plaintiff’s actions were not the proximate cause of the incident (see Allen v. Lowczus, 118 AD3d
1258, 1259 [4th Dept 2014]). Additionally, in Barry v. Manglass, 55 NY2d 803 (1981), the Court
of Appeals affirmed the principle that apportionment of fault can be distinct from substantial
causation. The jury’s verdict, when viewed as a whole, is consistent and supported by the evidence.
The mere fact that the jury found Mr. Bortugno to be negligent but concluded that his
negligence was not a proximate cause of the accident does not render its verdict inconsistent. It is
well established that “[a] jury’s finding that a party was at fault but that such fault was not a
proximate cause of the accident is inconsistent and against the weight of the evidence only when
the issues are so inextricably interwoven as to make it logically impossible to find negligence
without also finding proximate cause” (Garrett v. Manaser, 8 AD3d 616, 617 [2d Dept 2004]).
Where, as here, “there is a reasonable view of the evidence under which it is not logically
impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that,
in returning such a verdict, the jury adopted that view” (Membreno v. Roche, 128 AD3d 782, 783,
[2d Dept 2015] quoting Moffett-Knox v. Anthony’s Windows on the Lake, Inc., 126 AD3d 768, 769
[2d Dept 2015]).
In this case, the jury could have reasonably determined that while Plaintiff was negligent
in some respects, such negligence was not a substantial factor in causing the accident. For instance,
the jury may have credited Defendant’s argument that Mr. Bortugno should have looked upward
before entering the freight elevator but concluded that doing so would not have prevented the gate
from striking him on the head, given the height of Plaintiff, the configuration of the elevator
entrance, and the speed of the gate’s descent. Similarly, the jury could have accepted Defendant’s
assertion that Mr. Bortugno and Rosenberg were negligent in failing to contact Celeste Woods
before attempting to use the elevator but properly decided that such negligence was irrelevant to
Defendant’s failure to inspect and maintain the elevator’s warning devices in proper working
order.
This court finds that the jury’s verdict was not inconsistent. The jury’s conclusion reflects
a plausible and legally sound reconciliation of the evidence presented at trial. As such, Defendant’s
motion for a new trial based on alleged inconsistency in the verdict is denied.
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C. Reduction of Damages
The jury, after carefully considering the evidence and testimony presented, allocated 20%
comparative fault to Mr. Bortugno. Under New York’s comparative negligence law, codified in
CPLR § 1411, the award of damages must be reduced in proportion to the percentage of fault
attributed to the plaintiff. In this case, the jury awarded the Plaintiffs a total of $7,640,000, which
includes compensation for past and future pain and suffering, lost earnings, and other related
damages. Applying the 20% reduction for comparative negligence ($1,528,000) results in an
adjusted award of $6,112,000.
This reduction appropriately reflects the jury’s reasoned assessment that, while Schindler’s
negligence was the primary cause of the accident, Mr. Bortugno’s actions contributed in part to
the outcome. The allocation of comparative fault and the resulting reduction in damages are
consistent with New York law, which seeks to balance responsibility while ensuring fair
compensation.
Plaintiffs further argue, and this court concurs, that the reduction of damages by 20% to
account for Mr. Bortugno’s comparative fault renders Defendants’ request for a new trial moot.
Under CPLR § 1411, a plaintiff’s recovery is diminished in proportion to their culpable conduct,
thereby addressing any equitable concerns arising from the allocation of fault. Courts have
consistently held that where damages are properly reduced to reflect comparative negligence, the
fundamental purpose of a retrial—to achieve a fair outcome—is obviated (see Arbegast v Board
of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 166 [1985][noting that comparative fault
adjustments resolve disputes regarding proportional liability without necessitating retrials]).
This court emphasizes that the proportional reduction set forth herein reflects the jury’s
careful deliberations regarding liability and damages. Moreover, this reduction fully aligns with
the jury’s apportionment of liability and the evidence presented at trial. As a result, any remaining
claims of prejudice or inequity have been rectified through the proportional reduction. Defendants’
argument for a new trial, therefore, lacks merit because the adjusted damages already embody the
jury’s carefully deliberated findings and ensure a just result.
The mootness doctrine is particularly applicable where, as here, the central issues raised
by Defendants have been resolved through the application of statutory law and the jury’s verdict.
As will be discussed in further detail below, Defendants have not demonstrated any
remaining credible basis to justify retrial or a setting aside of the jury’s verdict.
II. Lack of Notice
Defendants contend that they had no actual or constructive notice of any defect in the
elevator’s warning light or alarm. This argument fails to account for the substantial evidence
presented at trial. Plaintiffs introduced service records showing prior issues with “force
discrepancies” and “gate alignment”—conditions consistent with the malfunction alleged.
Testimony from Plaintiffs’ expert, Mr. Carrajat, established that the failure of the warning systems
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was a foreseeable consequence of inadequate maintenance. Constructive notice arises when a
defect is visible and apparent and exists for a sufficient length of time to permit discovery and
correction (see Hayes v. Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [1st Dept 2007]). Moreover,
the Appellate Division, First Department, has held that constructive notice can be imputed where
maintenance logs reveal a pattern of unresolved issues, as was the case here (see Barkley v. Plaza
Realty Invs., Inc., 149 AD3d 74, 80 [1st Dept 2017]). Schindler’s maintenance practices, as
documented, failed to address recurring risks, and such omissions were sufficient for the jury to
infer constructive notice.
III. Applicability of Res Ipsa Loquitur
Defendants argue that the doctrine of res ipsa loquitur was improperly charged to the jury.
This argument is unpersuasive. The doctrine applies when (1) the event is of a kind that ordinarily
does not occur in the absence of negligence, (2) the instrumentality causing the injury was within
the exclusive control of the defendant, and (3) the plaintiff did not contribute to the cause of the
injury (see Dermatossian v. N.Y.C. Transit Auth., 67 NY2d 219, 226 [1986]). Plaintiffs established
all three elements: elevator gates do not typically strike individuals absent negligence; Schindler
had exclusive control over the elevator’s maintenance; and Mr. Bortugno’s comparative
negligence did not negate Defendants’ responsibility. New York courts have consistently held that
malfunctioning elevators present a classic scenario for res ipsa loquitur (see Burgess v Otis El.
Co., 114 AD2d 784, 785 [1st Dept 1985]).
Here, the doctrine was properly applied, and the jury’s purported reliance on it was
supported by the evidence. Indeed, Plaintiffs’ counsel argued, and the jury was properly instructed,
that res ipsa loquitur permitted an inference of negligence under these circumstances. The court’s
jury instructions meticulously explained the elements of the doctrine, ensuring the jury understood
its applicability (Trial Tr. 1123:14–1127:6).
Plaintiffs’ expert, Mr. Carrajat, testified that elevators are highly regulated machines that
require rigorous maintenance and safety checks. He explained that the type of malfunction leading
to Mr. Bortugno’s injury—a descending gate striking an individual entering the elevator—is
precisely the kind of accident that does not occur absent negligence (Trial Tr. 801:12–809:3).
Furthermore, maintenance records presented at trial revealed prior documented issues with the
warning systems on Elevator F105, including force discrepancies and gate misalignments.
Plaintiffs argued that these records unequivocally established Schindler’s exclusive control over
the elevator and its failure to address known safety risks, which directly contributed to the accident.
Defendants’ argument that Mr. Bortugno’s actions negated the applicability of res ipsa
loquitur is unavailing. The doctrine does not require the plaintiff to be entirely free from fault; it
merely requires that the plaintiff’s conduct was not the sole cause of the incident (see Kambat v.
St. Francis Hosp., 89 NY2d 489, 495 [1997]). Here, while the jury attributed 20% comparative
fault to Mr. Bortugno, this finding does not preclude the application of res ipsa loquitur, as the
evidence overwhelmingly demonstrated that Schindler’s negligence was the primary cause of the
accident.
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In sum, the doctrine of res ipsa loquitur was correctly charged, supported by substantial
evidence, and consistent with established New York law, particularly within the Appellate
Division, First Department (see Aponte v. Bronx Pres. Housing Devel. Fund Corp., 202 AD3d 401
[1st Dept 2022][misleveling]; Carter v. New York City Housing Auth., 176 AD3d 605 [1st Dept
2019][unexpected door closing]; Mogilansky v. 250 Broadway Assoc. Corp., 29 AD3d 374 [1st
Dept 2006][coil struck plaintiff on head]; Miller v. Schindler Elev. Corp., 308 AD2d 312 [1st Dept
2003][sudden drop]; Dickman v. Stewart Tenants Corp., 221 AD2d 158 [1st Dept 1995]
[misleveling]; Burgess v Otis El. Co., 114 AD2d 784 [1st Dept 1985][misleveling]; Weeden v.
Armor Elev. Co., Inc., 97 AD2d 197 [1st Dept 1983][sudden drop]; Trotman v. Precision Elev.
Corp., 2024 N.Y. Slip Op. 06140 [1st Dept 2024 [where res ipsa loquitur applies, proof of notice
is not required]). The jury’s verdict, to the extent that it may have been predicated on the
application of this doctrine, is therefore entitled to deference.
IV. Exclusion of Post-Incident Repair Evidence
Defendants argue that the exclusion of evidence regarding the lack of post-incident repairs
prejudiced their defense. This argument is without merit. Under New York law, evidence of
subsequent remedial measures is inadmissible to prove negligence (see Kaplan v. Einy, 209 AD2d
248, 252 [1st Dept 1994]). The rationale behind this exclusion is to encourage parties to undertake
remedial measures without fear that such actions will be construed as admissions of fault. The
court’s evidentiary ruling in this regard ensured that the jury’s focus remained on the conditions
as they existed at the time of the incident.
Plaintiffs argue, and this court agrees, that the exclusion of such evidence did not deprive
Defendants of the opportunity to present a full and fair defense. Defendants were able to introduce
extensive maintenance records and testimony to support their position that the elevator was
properly maintained prior to the incident. Furthermore, testimony from Schindler’s own
maintenance personnel provided the jury with insights into the company’s practices, allowing the
jury to assess the adequacy of those practices without considering any post-incident actions.
Case law consistently affirms that the exclusion of post-incident remedial measures does
not constitute prejudicial error when other evidence is available to address the issues of
maintenance and safety. For example, in Cruz v. City of New York, 218 AD2d 546, 548 (1st Dept
1995), the court upheld the exclusion of evidence of subsequent repairs, finding that the jury was
sufficiently informed through other admissible evidence. Similarly, in Rivera v New York City Tr.
Auth., 54 AD3d 545, 546 (1st Dept 2008), the court emphasized that remedial measures are
irrelevant to determining whether negligence existed at the time of the incident.
In the present case, the jury had access to substantial evidence of Schindler’s maintenance
practices prior to the accident. Plaintiffs introduced records detailing recurring issues with the
elevator, including warnings about force discrepancies and gate alignment problems. Expert
testimony from Mr. Carrajat further bolstered Plaintiffs’ position, as he identified specific
deficiencies in Schindler’s inspections and repairs (Trial Tr. 801:12–809:3). Defendants’ argument
is further rendered moot by the fact that, despite the court’s pretrial ruling in limine excluding post-
accident repair evidence, the court ultimately permitted limited testimony on this issue.
Specifically, over Plaintiffs’ objection, Defendants were allowed to introduce post-accident repair
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evidence through the testimony of their witness, Mr. Mikolajczyk, and during the cross-
examination of Plaintiffs’ expert, Mr. Carrajat. This testimony provided the jury with insights into
Defendants’ maintenance practices following the accident, addressing the very concerns
Defendants now raise. Given that such evidence was, in fact, presented to the jury, albeit in a
controlled and limited fashion, Defendants cannot now claim prejudice or procedural unfairness
based on its exclusion.
The exclusion of additional post-incident repair evidence was particularly appropriate here,
as its probative value was minimal compared to its potential to mislead the jury or create undue
prejudice. Any inference that the absence of repairs after the accident signified proper maintenance
would have been speculative and contrary to the established facts of the case. Accordingly, this
court finds that the exclusion of such evidence was both legally correct and essential to preserving
the fairness of the trial.
V. Damages
Defendants’ claim that the damages awarded were excessive lacks merit. The jury’s award
was supported by expert testimony regarding Mr. Bortugno’s lost earning capacity, medical
expenses, and pain and suffering. Plaintiffs’ economist Debra Dwyer provided detailed
calculations of Mr. Bortugno’s future earnings, which the jury was entitled to credit. While
Defendants criticize the economist’s failure to adjust for certain variables, such critiques were fully
explored during cross-examination and did not render the damages speculative (see Barry v.
Manglass, 55 NY2d 803, 806 [1981]). In Ezzard v One E. Riv. Place Realty Co., LLC, 129 AD3d
159, 163 (1st Dept 2015), the court emphasized the deference afforded to jury determinations on
damages, particularly where supported by expert testimony. The court finds no basis to disturb the
jury’s carefully considered award.
After a thorough review of the trial record, the evidence presented, and the arguments
raised by the parties, the court finds no basis to disturb the jury’s verdict. Defendants have failed
to demonstrate any error of law or fact warranting judgment notwithstanding the verdict or a new
trial. Accordingly, it is hereby:
ORDERED that Defendants’ motion is denied insofar as it seeks to set aside the jury’s
verdict in favor of Plaintiffs, to enter judgment as a matter of law in favor of Schindler, or to order
a new trial on liability and damages; and it is further
ORDERED that Defendants’ motion is granted to the extent that the jury’s verdict is upheld
in all respects, with damages awarded to Mr. Bortugno reduced by 20% ($1,528,000) to reflect
Mr. Bortugno’s comparative fault; and it is further
ORDERED that as a result, Plaintiffs’ cumulative recovery is adjusted to $6,112,000; and
it is further
ORDERED that the Clerk of the Court is directed to enter judgment in Plaintiffs’ favor in
the amount of $6,112,000, accordingly.
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This constitutes the decision and order of the court.
1/17/2025
DATE HASA A. KINGO, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
150623/2013 BORTUGNO, NICHOLAS vs. SCHINDLER ELEVATOR Page 10 of 10
Motion No. 018
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