| Gambino v City of New York |
| 2009 NY Slip Op 01612 [60 AD3d 627] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 17—Carl Gambino et al., Respondents, v City ofNew York, Appellant. |
—[*1] Kelner & Kelner, New York, N.Y. (Joshua D. Kelner and Ronald C. Burke of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from ajudgment of the Supreme Court, Kings County (Vaughan, J.), dated June 26, 2007, which, interalia, upon the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law for theplaintiffs' failure to establish a prima facie case, upon a jury verdict finding it 100% at fault inthe happening of the accident and finding that the plaintiffs sustained damages in the principalsum of $5,100,000, upon an order of the same court dated July 18, 2006, among other things,denying those branches of its motion pursuant to CPLR 4404 (a) which were to set aside the juryverdict and for judgment as a matter of law for the plaintiff's failure to establish a prima faciecase, or to set aside the jury verdict as against the weight of the evidence and for a new trial, andupon the plaintiffs' stipulation to reduce the verdict as to damages, is in favor of the plaintiffs andagainst it in the total sum of $2,693,002.75.
Ordered that the judgment is affirmed, with costs.
The plaintiff Carl Gambino (hereinafter the plaintiff), an employee of the New York CityDepartment of Sanitation, slipped and fell on a puddle of oil as he was walking through adimly-lit garage that was owned by the defendant and used to store various sanitation vehicles.The puddle was described during trial by the plaintiff and by his supervisor, Robert D'Angelo, asthree feet by five feet or four feet by four feet in size, [*2]respectively. Another coworker, Ralph Senzino, testified that twodays before the plaintiff's accident, he observed a five- or six-foot oil puddle which he reportedto a garage clerk whose job included the noting of conditions in an incident log. D'Angelo andSenzino testified that the oil puddle they observed was in the vicinity of a truck bearingidentification number 24005, and the identification number of the truck described by the plaintiffended with 005. Any record reflecting Senzino's complaint of the condition was destroyed bywater damage and was not available for discovery or trial. The jury found that the defendant'snegligence in failing to keep the area of the garage where the accident occurred in a reasonablysafe condition proximately caused the plaintiff's injuries. The jury found the defendant 100% atfault in the happening of the accident and found that the plaintiffs sustained damages in theprincipal sum of $5,100,000, which sum was thereafter reduced pursuant to stipulation.
On appeal, the defendant argues that, as a matter of law, it cannot be held liable as oilspillage in a garage housing trucks is inherent in the nature of the work and incidental to the useof the facility. We disagree. In cases involving a pool of oil or grease in a municipal truckgarage, as here, liability may attach if the property owner affirmatively creates the condition, orhad actual or constructive notice of the condition without correcting or warning of its existencewithin a reasonable time (see Mercer v City of New York, 88 NY2d 955 [1996];Morales v Jolee Consolidators, 173 AD2d 315, 315-316 [1991]). On this record, thejury's verdict on the issue of liability is supported by legally sufficient evidence, since there wasa valid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury (see generally Cohen v Hallmark Cards, 45 NY2d 493,499 [1978]).
Contrary to the defendant's contention, the testimony of the plaintiffs' witness was not somanifestly untrue, physically impossible, or contrary to common experience as to render itincredible as a matter of law (see Ahr vKarolewski, 48 AD3d 719, 719-720 [2008]). Moreover, the jury's verdict was supportedby a fair interpretation of the evidence (see Desposito v City of New York, 55 AD3d 659 [2008]).Prudenti, P.J., Dillon, Eng and Leventhal, JJ., concur.