In Altamirano v. Door Automation Corp., a security guard at Lincoln Center was injured when a metal arm from a large motorized door broke free and struck him in the head. It was alleged that Door Automation Corp., who had repaired the door eleven times in the year preceding the accident, had improperly repaired the metal arm. On a prior appeal, the First Department had found that a question of fact existed as to whether DAC's repairs brought DAC within the exception to the rule precluding contractual third-party tort liability (48 A.D.3d 308 [2008]).
At trial, plaintiff's counsel sought to use the First Department's holding to formulate the jury charge. The trial court rejected counsel's proposed charge. On appeal from a jury verdict in favor of the defendant, a majority of the First Department reversed, finding that the charge chosen by the trial court did not "concisely explain, in fact-specific terms, what the jury needed to find in order to determine DAC's liability... Instead, it was both misleading and confusing..."
Writing for the dissent, Justice Nardelli, joined by Justice Abdus-Salaam, observed that counsel's proposed charge "erroneously" relied on the Court's dicta from its earlier decision and that counsel had "misinterpret[ed] the import of th[at] decision." Justice Nardelli wrote "[a]ny... observations made in [this Court's earlier] decision were, at best, explanations in support of its holding that issues of fact were presented, or, at worse, dicta..." The Judge instead found that the trial court's charge accurately tracked the law, and that nothing in the charge was incorrect or confusing. Therefore, "since the charge was clear and accurate as given" Justices Nardelli and Abdus-Salaam would have affirmed.
At trial, plaintiff's counsel sought to use the First Department's holding to formulate the jury charge. The trial court rejected counsel's proposed charge. On appeal from a jury verdict in favor of the defendant, a majority of the First Department reversed, finding that the charge chosen by the trial court did not "concisely explain, in fact-specific terms, what the jury needed to find in order to determine DAC's liability... Instead, it was both misleading and confusing..."
Writing for the dissent, Justice Nardelli, joined by Justice Abdus-Salaam, observed that counsel's proposed charge "erroneously" relied on the Court's dicta from its earlier decision and that counsel had "misinterpret[ed] the import of th[at] decision." Justice Nardelli wrote "[a]ny... observations made in [this Court's earlier] decision were, at best, explanations in support of its holding that issues of fact were presented, or, at worse, dicta..." The Judge instead found that the trial court's charge accurately tracked the law, and that nothing in the charge was incorrect or confusing. Therefore, "since the charge was clear and accurate as given" Justices Nardelli and Abdus-Salaam would have affirmed.
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