| Alexander v City of New York |
| 2009 NY Slip Op 01433 [59 AD3d 650] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Donette Alexander, Respondent, v City of New York,Appellant. |
—[*1] Edelman & Edelman, P.C., New York, N.Y. (David M. Schuller of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from a judgmentof the Supreme Court, Kings County (Knipel, J.), entered October 11, 2007, which, upon a juryverdict, and upon the denial of its motion to dismiss the complaint on the ground that the priorwritten notice of the subject defect lacked specificity and the granting of that branch of itsseparate motion pursuant to CPLR 4404 which was to set aside the verdict as to damages for pastand future pain and suffering and the ordering of a new trial with respect thereto, unless theplaintiff stipulated to reduce the verdict as to damages for past pain and suffering from the sumof $1,500,000 to the sum of $500,000, and for future pain and suffering from the sum of$4,000,000 to the sum of $1,250,000, and upon the denial of the remaining branches of itsmotion pursuant to CPLR 4404, and upon the plaintiff's stipulation to reduce the damagesawards, is in favor of the plaintiff and against it.
Ordered that the judgment is affirmed, with costs.
On October 20, 1997 the plaintiff stepped into a hole on the street while alighting from aNew York City bus, and sustained injuries. Due to the presence of illegally parked cars, the busdriver had been prevented from pulling into the bus stop at the corner of Broadway and GatesAvenue in Brooklyn. The City had received a document in June 1997, generated by itsDepartment of Transportation, indicating that a pothole existed on Broadway between GatesAvenue and Linden [*2]Street.
At the first trial, a jury determined that the City had prior written notice of the roadwaydefect and was negligent, but also found that the defendant's negligence was not a proximatecause of the plaintiff's injuries (seeAlexander v City of New York, 21 AD3d 389, 390 [2005]). The trial court thereforedismissed the complaint insofar as asserted against the City (id. at 389). On appeal, thisCourt reversed and ordered a new trial, finding that because "[t]he issues of negligence andproximate cause [were] inextricably intertwined [it was] logically impossible [for the jury] tofind negligence without also finding proximate cause" (id. at 390).
Following a retrial, the jury again determined that the City had prior written notice of theroadway defect. It further found the City, the bus driver (who testified at the second trial but wasnot a party to the lawsuit), and the plaintiff to be negligent, and assigned fault percentages of90%, 8%, and 2%, respectively. The jury awarded the plaintiff damages for past and future painand suffering. At the close of the evidence, the Supreme Court denied the City's motion todismiss the complaint on the ground that the prior written notice of the defect lacked specificity.The City later moved to set aside the verdict. With the exception of the branch of the CPLR 4404motion which was to set aside the verdict as to damages for past and future pain and suffering,the motion was denied.
Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), a plaintiffmay maintain a cause of action against the City for injuries stemming from a roadway defect ifthe City has prior written notice of the defect. The City contends that the documentation uponwhich the plaintiff relied lacked specificity.
Section 7-201 (c) of the Administrative Code "does not set forth any requirements for thespecificity of the notice. Therefore, since the prior notice law is in derogation of the common lawand must be strictly construed against the City, a notice is sufficient if it brought the particularcondition at issue to the attention of the authorities" (Almadotter v City of New York, 15 AD3d 426, 427 [2005]).Where the nature and location of the roadway defect that caused the plaintiff's injuries aredisputed, the issue of whether the defendant had prior written notice is for the jury to decide (see Vertsberger v City of New York,34 AD3d 453, 455-456 [2006]; Almadotter v City of New York, 15 AD3d at 427;Quinn v City of New York, 305 AD2d 570, 571 [2003]). Here, there was sufficientevidence from which the jury could deduce that the defendant had written notice of the roadwaydefect in June 1997, four months before the plaintiff's October accident (see Vertsberger vCity of New York, 34 AD3d at 456; Weinreb v City of New York, 193 AD2d 596,598 [1993]; cf. Bruni v City of NewYork, 2 NY3d 319, 327 [2004]). Moreover, the jury's determination on this issue wasnot against the weight of the evidence (see Vertsberger v City of New York, 34 AD3d at456).
Based on a "fair interpretation of the evidence," the jury could reasonably have determinedthat numerous factors attenuated both the plaintiff's and the bus driver's negligence (Soto v Famulari, 28 AD3d 639,640 [2006] [internal quotation marks omitted]). Accordingly, the jury verdict with respect to theapportionment of fault was not against the weight of the evidence (see Fertik v Fertik,264 AD2d 463, 464 [1999]; Castellano v City of New York, 183 AD2d 800 [1992]).
The parties' remaining contentions are without merit or need not be reached in light of theforegoing determinations. Rivera, J.P., Miller, Carni and McCarthy, JJ., concur.