| Bleiberg v City of New York |
| 2007 NY Slip Op 06817 [43 AD3d 969] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Randee Bleiberg et al., Respondents, v City of New Yorket al., Appellants. |
—[*1] Finz & Finz, P.C., Jericho, N.Y. (Jay L. Feigenbaum of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from ajudgment of the Supreme Court, Kings County (Ruditzky, J.), entered February 10, 2006, which,upon the denial of their motion, in effect, pursuant to CPLR 4401 for judgment as a matter oflaw, made at the close of evidence, upon a jury verdict awarding the plaintiff Randee Bleibergdamages in the sums of $40,000 for past pain and suffering, $150,000 for future pain andsuffering, $35,000 for past loss of earnings, $17,000 for past medical expenses, and $150,000 forfuture medical expenses, and awarding the plaintiff Bruce Bleiberg the sums of $20,000 for pastloss of services and $30,000 for future loss of services, and upon the denial of their motion, ineffect, pursuant to CPLR 4404 (a) to set aside the jury verdict and for judgment as a matter oflaw, is in favor of the plaintiffs and against them in the principal sum of $442,000.
Ordered that the judgment is modified, on the law and in the exercise of discretion, bydeleting the provision thereof awarding damages to the plaintiff Randee Bleiberg for futuremedical expenses; as so modified, the judgment is affirmed, with costs, and a new trial is grantedon the issue of damages for future medical expenses, unless within 30 days after service upon theplaintiff Randee Bleiberg of a copy of this decision and order, she shall serve and file in theoffice of the Clerk of the Supreme Court, Kings County, a written stipulation consenting toreduce the verdict as to damages for future medical expenses from the sum of $150,000 to thesum [*2]of $75,000, and to the entry of an amended judgmentaccordingly; in the event that she so stipulates, then the judgment, as so modified, reduced, andamended, is affirmed, without costs or disbursements.
The plaintiff Randee Bleiberg allegedly was injured when the heel of her left shoe becamecaught in a hole in the concrete landing at the foot of a stairway leading to Public School 100,causing her to fall. The hole, which was 1
The Supreme Court properly denied the motions of the defendant City of New York pursuantto CPLR article 44 to dismiss the action insofar as asserted against it, made on the ground, interalia, that it had no responsibility for the care, custody, control, and safekeeping of schoolproperty. At the time of the accident, all school property was under the exclusive care, custody,and control of the Board of Education, an entity separate and distinct from the City (seeEducation Law § 2554 [4] [as such provision read prior to the effective date of L 2002, ch91]; NY City Charter, ch 20, § 521 [a]). Nevertheless, the City, as the owner of thepremises, had a status equivalent to an out-of-possession landlord, and therefore still could beheld liable for injuries caused by a dangerous condition which it affirmatively created (see Torres v West St. Realty Co., 21AD3d 718, 721 [2005]; Davison v Wiggand, 259 AD2d 799 [1999]). Contrary to theCity's contention, the record in this case contains sufficient evidence from which rational jurorscould infer, as the jury here did, that the City created the dangerous condition. Also contrary tothe City's contention, the plaintiffs' notice of claim in this case specifically alleged, inter alia, thatthe City created the dangerous condition.
The defendants' contention that the hole was trivial as a matter of law is without merit. Basedon the evidence adduced at trial regarding the dimensions and location of the hole, a jury couldrationally conclude that it was a dangerous condition (see Trincere v County of Suffolk,90 NY2d 976, 977 [1997]).
The defendants' contention that the verdict as to negligence was inconsistent is unpreservedfor appellate review because they failed to object to the verdict on that ground prior to thedischarge of the jury (see Jamal vGohel, 25 AD3d 587, 588 [2006]). In any event, the contention is without merit (seeCona v Dwyer, 292 AD2d 562, 563 [2002]).
Based on the evidence adduced at trial, however, we find that the award of $150,000 forfuture medical expenses is excessive to the extent indicated (see Lloyd v Russo, 273AD2d 359, 360 [2000]).
The defendants' remaining contentions either are without merit or need not be reached inlight of our determination. Rivera, J.P., Florio, Fisher and Dillon, JJ., concur.