| Scavuzzo v City of New York |
| 2008 NY Slip Op 00481 [47 AD3d 793] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Santo Scavuzzo, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and FayNg of counsel), for respondent City of New York. Bryan M. Rothenberg, Hicksville, N.Y. (Fiedelman & McGaw [James K. O'Sullivan] ofcounsel), for respondent Andrei Kuzin.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Dabiri, J.), dated May 1, 2006, which, after a jury verdictfinding the defendant Andrei Kuzin 95% at fault and the defendant City of New York 5% at faultin the happening of the accident, and awarding the plaintiff damages in the sums of $1,000,000for past pain and suffering and $500,000 for future pain and suffering, (a) granted those branchesof the motion of the defendant Andrei Kuzin which were pursuant to CPLR 4404 to set aside theverdict for the plaintiff's failure to establish a prima facie case and for judgment as a matter oflaw, (b) in effect, denied, as academic, those branches of the motion of the defendant AndreiKuzin which were to set aside the verdict as against the weight of the evidence and for a new trialon the issues of liability and damages insofar as asserted against that defendant, (c) in effect,granted those branches of the separate motion of the defendant City of New York pursuant toCPLR 4404 which were to set aside the verdict for the plaintiff's failure to establish a prima faciecase and for judgment as a matter of law, and (d) denied, as academic, his cross motion pursuantto CPLR 3025 for leave to amend the complaint to increase the amount demanded in the addamnum clause from the sum of $1,000,000 to the sum of $1,500,000.[*2]
Ordered that the order is modified, on the law and in theexercise of discretion, (1) by deleting the provision thereof granting those branches of the motionof the defendant Andrei Kuzin which were pursuant to CPLR 4404 to set aside the verdict for theplaintiff's failure to establish a prima facie case and for judgment as a matter of law andsubstituting therefor a provision denying those branches of the motion, (2) by deleting theprovision thereof, in effect, denying those branches of the motion of the defendant Andrei Kuzinwhich were to set aside the verdict as against the weight of the evidence and for a new trial on theissues of liability and damages insofar as asserted against that defendant and substituting therefora provision granting those branches of the motion, and (3) by deleting the provision thereofdenying as academic the plaintiff's cross motion pursuant to CPLR 3025 for leave to amend thecomplaint; as so modified, the order is affirmed, with one bill of costs payable by the plaintiff,and the matter is remitted to the Supreme Court, Kings County, for a determination of theplaintiff's cross motion and thereafter a new trial on the issues of liability and damages insofar asasserted against the defendant Andrei Kuzin.
The Supreme Court correctly granted those branches of the motion of the defendant City ofNew York which were pursuant to CPLR 4404 to set aside the verdict in favor of the plaintiffand against it, and for judgment as a matter of law, since there was legally insufficient evidenceto make out a prima facie case against it. It is undisputed that the City was not provided withprior written notice of the defective roadway condition that allegedly caused the plaintiff'saccident (see Administrative Code of City of NY § 7-201 [c] [2]). As such, inorder to maintain his cause of action against the City, the plaintiff was required to demonstratethat the City created the defective roadway condition that allegedly caused his accident throughan "affirmative act of negligence" or that a "special use" conferred a special benefit upon the City(Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). While there was evidence thatthe City's Department of Transportation issued a permit to repair the roadway approximatelyeight years prior to the accident, the plaintiff was unable to demonstrate that a dangerouscondition existed immediately after the repair was completed, that the repair caused the allegeddangerous condition, or that the City enjoyed a special use over the subject portion of theroadway (see Daniels v City of NewYork, 29 AD3d 514 [2006]; Lopez v G&J Rudolph Inc., 20 AD3d 511, 512-513 [2005]; Gold v County of Westchester, 15AD3d 439 [2005]; Bielecki v Cityof New York, 14 AD3d 301 [2005]).
However, while the Supreme Court properly granted that branch of the motion of thedefendant Andrei Kuzin which was to set aside the verdict, it should not have granted that branchof Kuzin's motion which was for judgment as a matter of law, but rather should have granted anew trial on the issues of both liability and damages, since the verdict, although supported bylegally sufficient evidence, was nonetheless against the weight of the evidence (see Langhorne v County of Nassau, 40AD3d 1045 [2007]; Bennett v City of New York, 303 AD2d 614 [2003];Nicastro v Park, 113 AD2d 129, 133-137 [1985]). In light of this determination, theplaintiff's contentions with respect to his cross motion to increase the amount set forth in the addamnum clause are no longer academic and should be decided by the Supreme Court.
Since we are remitting this matter to the Supreme Court, Kings County, for a new trial asagainst Kuzin, we note that Kuzin's counsel properly interposed a legal objection to a notice toadmit served upon Kuzin by the plaintiff, on the ground that the notice to admit improperlysought an ultimate or conclusory fact which was an integral part of the plaintiff's prima facie case(see CPLR 3123 [a]; cf. ELRAC, Inc. v McDonald, 186 Misc 2d 830 [2001]).Spolzino, J.P., Skelos, Florio and Angiolillo, JJ., concur. [See 12 Misc 3d 1180(A), 2006NY Slip Op 51323(U).]