Here is some information from Daniel Wise of the NYLJ.

Motion to Set Aside Rejected After Defense Goes Unraised

By Daniel Wise
New York Law Journal
April 12, 2006

For the lack of an objection, a $1.4 million jury verdict in an accident case must stand even though the defense had a silver bullet that could have prevented the award, Acting Supreme Court Justice Edgar G. Walker (see Profile) of the Bronx has ruled.

The sole remaining defendant in the case, a car rental company called DL Peterson Trust, had an ironclad defense because the protections against lawsuits provided by the state Workers’ Compensation Law trump state rules on vicarious liability that were in effect at the time of the 2001 accident, Justice Walker held in Caviness v. Sanchez, 16315/02.

However, since the defense did not raise that argument at trial, Justice Walker rejected its post-trial motion to set aside the verdict.

In the lawsuit, Gennell Caviness, a Brinks guard, sued to recover for injuries sustained when an armored truck she was riding in was involved in an accident. She sued both a co-worker who was driving and DL Peterson, which had rented the truck to Brinks. Ms. Caviness sought recovery for injuries to her finger and shoulder, which required two separate surgeries.

The co-worker was clearly immune from suit under the Workers’ Compensation Law, and he was released from the case as soon as the plaintiff rested. But neither side seemed to appreciate the fact that case law also protected the car rental company because of the way the Workers’ Compensation Law is structured.

Under the Court of Appeals’ 1988 ruling in Naso v. Lafata, 4 NY2d 585, Justice Walker ruled, both Brinks and DL Peterson enjoyed the same Workers’ Compensation Law immunity as the co-worker.

Nevertheless, the case proceeded to a verdict against the rental company last June without an objection from the company’s lawyer, Gregg D. Weinstock of Garbarini & Scher.

The failure to object became fatal once the jury was instructed on the issue of vicarious liability, Justice Walker held. In a reference to the issue, he noted that Garbarini & Scher, in its initial post-trial filing, acknowledged it “did not apprehend the significance of the case law discussed.”

Mr. Weinstock declined to comment because, he said, “the matter is in litigation.” However, according to the opinion, Mr. Weinstock submitted an affirmation in which he stated, “At no time during the trial did I affirmatively waive any defense available to my clients with respect to plaintiffs’ claims.”

Even though DL Peterson as a matter of law could not have been held vicariously liable, Justice Walker instructed the jurors that they had to find the rental company liable if they found the driver had been negligent.

Once that erroneous charge had been given to the jury, Justice Walker ruled, it was too late to correct it.

He pointed out that §4110-b of Civil Practice Rule and Laws bars a party from asserting error in a jury instruction unless it does so “before the jury retires to consider its verdict.”

Because no such objection had been made, the judge concluded, “no cognizance may be taken of what would have been clear error in so charging had defendant objected.”

As a consequence, he concluded, the “defendant is precluded from arguing that the theory of vicarious liability is not applicable to the facts of this case.”

Ms. Caviness was represented at the trial by Kenneth D. Brown, and on the post-trial motion to have the verdict set aside by Brian J. Isaac of Pollack Pollack Isaac & DeCicco.

Michael P. Conboy and Mary C. Azzaretto of McAndrew, Conboy & Prisco of Woodbury represented DL Peterson on the motion to reargue the post-trial motion. Mr. Conboy declined to comment.

— Daniel Wise can be reached at dwise@alm.com.