| Verdi v Top Lift & Truck Inc. |
| 2008 NY Slip Op 03951 [50 AD3d 574] |
| April 29, 2008 |
| Appellate Division, First Department |
| Victor Verdi, Appellant, v Top Lift & Truck Inc.,Respondent. |
—[*1] White, Fleischner & Fino, LLP, New York (Walter Williamson of counsel), forrespondent.
Order and judgment (one paper), Supreme Court, Bronx County (Maryann Brigantti-Hughes,J.), entered on or about May 23, 2005, which granted defendant's motion for a directed verdict onthe grounds of insufficient evidence, set aside a jury verdict in plaintiff's favor, and dismissed thecomplaint with prejudice, unanimously reversed, on the law, without costs, the motion deniedand the jury verdict reinstated.
The trial court properly denied the branch of defendant's motion for a directed verdict thatwas based on the argument that plaintiff's behavior was so reckless as to constitute the sole legalcause of his injuries (see Soto v NewYork City Tr. Auth., 6 NY3d 487, 492 [2006]). Plaintiff's carelessness in maneuveringthe motorized power jack in violation of the written warnings on the machine "did not constitutesuch an unforeseeable or superseding event as to break the causal connection between his injuryand defendant's negligence" (id. at 493).
Contrary to defendant's contention, it owed a duty of care to plaintiff, even though it was notin privity with him (see e.g. Hopper vRegional Scaffolding & Hoisting Co., Inc., 21 AD3d 262, 263 [2005], lvdismissed 6 NY3d 806 [2006]), based on evidence of its exclusive maintenance and repaircontract with his employer (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579[1994]) and plaintiff's detrimental reliance on its continued performance of its contractual duties(Hopper at 263; see generally Eaves Brooks Costume Co. v Y.B.H. Realty Corp.,76 NY2d 220, 226 [1990]).
Viewing the evidence in the light most favorable to plaintiff (see Szczerbiak v Pilat,90 NY2d 553, 556 [1997]), a rational jury could find that defendant negligently performed itsundertaking to repair and maintain the machine that injured plaintiff (see Rogers v DorchesterAssoc., 32 NY2d 553, 557 [1973]). It was the jury's prerogative to reject the testimonyoffered by defendant (see e.g. Harding v Noble Taxi Corp., 182 AD2d 365, 370 [1992])that contradicted plaintiff's position that defendant had made (apparently deficient) repairs to theemergency reverse button. Accordingly, the jury verdict, which found defendant 60% negligentand plaintiff 40% negligent, should be reinstated.[*2]
The trial court's exclusion of certain testimony thatplaintiff sought to offer does not warrant a new trial. Concur—Gonzalez, J.P., Nardelli,Sweeny and McGuire, JJ.