| Healy v Carmel Bowl, Inc. |
| 2009 NY Slip Op 06314 [65 AD3d 665] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Donna Healy et al., Respondents, v Carmel Bowl, Inc., etal., Appellants-Respondents. |
—[*1] O'Connor Redd LLP, White Plains, N.Y. (Steven R. Lau of counsel) forappellant-respondent Done-Right Bowling Service Co., Inc. Laub Delaney, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Michael H. Zhu], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Carmel Bowl, Inc.,appeals, as limited by its brief, from so much of an interlocutory judgment of the Supreme Court,Putnam County (O'Rourke, J.), dated June 16, 2008, as, upon, inter alia, in effect, denying itsmotion pursuant to CPLR 4401 for judgment as a matter of law, upon a jury verdict on the issueof liability finding it 100% at fault in the happening of the accident, and upon the granting of thatbranch of the plaintiffs' motion which was for judgment as a matter of law against the defendantDone-Right Bowling Service Co., Inc., to the extent of finding that defendant 50% at fault in thehappening of the accident, is in favor of the plaintiffs and against it, finding it 50% at fault in thehappening of the accident, and the defendant Done-Right Bowling Service Co., Inc., separatelyappeals, as limited by its brief, from so much of the same interlocutory judgment as, upon a juryverdict on the issue of liability finding that it was 0% at fault in the happening of the accident,and upon the granting of the plaintiffs' motion pursuant to CPLR 4404 (a) to set aside the verdictwith respect to it as contrary to the weight of the evidence and for judgment as a matter of lawagainst it on the issue of liability to the extent of finding it 50% at fault in the happening of theaccident, is in favor of the plaintiffs and against it finding it 50% at fault in the happening of theaccident.
Ordered that the interlocutory judgment is modified, on the law, by deleting the provisionthereof finding each defendant 50% at fault in the happening of the accident and substitutingtherefor a provision finding the defendant Carmel Bowl, Inc., 100% at fault; as so modified, theinterlocutory judgment is affirmed insofar as appealed from, with one bill of costs to thedefendant Done-Right Bowling Service Co., Inc., payable by the defendant Carmel Bowl, Inc.,the plaintiffs' motion pursuant to CPLR 4404 (a) to set aside the verdict with respect to thedefendant Done-Right Bowling Service Co., Inc., as contrary to the weight of the evidence andfor judgment as a matter of law against that defendant is denied, the jury verdict on the issue ofliability is reinstated, and the matter is remitted to the Supreme Court, Putnam County, for (a) atrial on the issue of damages against the defendant Carmel Bowl, Inc., and the entry of anappropriate judgment [*2]thereafter and (b), the severance of theaction against the defendant Done-Right Bowling Service Co., Inc., and the entry of a judgmentdismissing the complaint insofar as asserted against that defendant.
On March 30, 2003, the plaintiff Donna Healy (hereinafter the plaintiff) and variousmembers of her family went bowling at a bowling alley owned by the defendant Carmel Bowl,Inc. (hereinafter Carmel Bowl). While bowling, the plaintiff stepped on a trapdoor and fellthrough it, injuring her right hip and leg. The purpose of the trapdoor was to allow bowling alleypersonnel to gain access to the system underneath the floor to free bowling balls that had becomestuck. Thereafter, the plaintiff, with her husband suing derivatively, commenced the instantaction to recover damages, inter alia, for her personal injuries against Carmel Bowl and thedefendant Done-Right Bowling Service Co., Inc. (hereinafter Done-Right), which allegedlyinstalled the trapdoor. The case proceeded to trial on the issue of liability. At the close of theplaintiffs' case, the Supreme Court denied Carmel Bowl's motion pursuant to CPLR 4401 forjudgment as a matter of law. The jury thereafter returned a verdict finding Carmel Bowl 100% atfault in the happening of the accident and Done-Right 0% at fault. The court granted thosebranches of the plaintiffs' motion which were pursuant to CPLR 4404 (a) to set aside the verdictin favor of Done-Right as contrary to the weight of the evidence, and for judgment as a matter oflaw against Done-Right on the issue of liability, and apportioned liability between thedefendants, finding each of them 50% at fault in the happening of the accident. The defendantsseparately appeal from the interlocutory judgment entered by the court.
The trial court erred in granting that branch of the plaintiffs' motion which was pursuant toCPLR 4404 (a) for judgment as a matter of law against Done-Right, to the extent of finding it tobe 50% at fault in the happening of the accident, but properly, in effect, denied Carmel Bowl'smotion for judgment as a matter of law in its favor. "A directed verdict is only appropriate wherethere is no rational process that would lead the trier of fact to find for the nonmoving party" (Sweeney v Bruckner Plaza Assoc., 57AD3d 347, 349 [2008]). In considering a motion for a judgment as a matter of law, "the trialcourt must afford the party opposing the motion every inference which may properly be drawnfrom the facts presented, and the facts must be considered in a light most favorable to thenonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).
Viewing the evidence in the light most favorable to Done-Right, a rational process existedby which the jury could find that Done-Right was not at fault in the happening of the accident.Similarly, viewing the evidence presented by the plaintiffs in the light most favorable to them,and affording them every reasonable inference therefrom, a rational process existed by which thejury could find Carmel Bowl solely at fault in the happening of the accident, based on its failureto maintain the subject trapdoor in a reasonably safe condition. A landowner has a duty tomaintain its premises in a reasonably safe condition "in view of all the circumstances, includingthe likelihood of injury to others, the seriousness of the injury, and the burden of avoiding therisk" (Basso v Miller, 40 NY2d 233, 241 [1976] [internal quotation marks omitted];see Peralta v Henriquez, 100 NY2d 139, 144 [2003]; Smith v New York City Hous. Auth., 52 AD3d 808 [2008];Palmeri v Briarwood at Alley Pond Condominium, 264 AD2d 386 [1999]).
A jury verdict should not be set aside as contrary to the weight of the evidence unless thejury could not have reached the verdict by any fair interpretation of the evidence (see Lolik vBig V Supermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129 [1985]).While it is within a trial court's discretion to set aside a verdict as contrary to the weight of theevidence, a court must do so cautiously, "for in the absence of indications that substantial justicehas not been done, a successful litigant is entitled to the benefits of a favorable jury verdict"(Nicastro v Park, 113 AD2d at 133; see Cohen v Hallmark Cards, 45 NY2d 493,499 [1978]).
At trial, the defendants differed on which entity had installed the subject trapdoor. GlennGable of Done-Right testified that a Done-Right employee installed only one trapdoor at thebowling alley, and that Carmel Bowl installed the remaining 15. In contrast, Jeanette Fossati ofCarmel Bowl testified that Carmel Bowl did not install any of the trapdoors, and implied thatDone-Right installed all of them. Regardless of which defendant installed the subject trapdoor,[*3]there was no contract obligating Done-Right to maintain thattrapdoor, and the evidence adduced at trial demonstrated that neither Carmel Bowl nor itscustomers complained about the subject trapdoor in the four years between its installation andthe plaintiff's accident.
The evidence further indicated that Carmel Bowl altered the subject trapdoor by installingscrews on top of it, which Gable stated was improper since, by doing so, among other things, therock maple comprising the trapdoor became compressed, causing the wood to become brittle.Gable also denied that the screws were installed to correct a faulty installation of the subjecttrapdoor by Done-Right, explaining that if the installation had been faulty, the subject trapdoorwould have collapsed much earlier. Moreover, while the plaintiffs' structural engineering expert,Dean Koutsoubis, testified that the subject trapdoor collapsed because of an improperinstallation, inasmuch as no supports were installed under its edges, the jury was entitled todisregard his testimony given his uncertainty concerning, among other things, the condition ofthe offending trapdoor at the time of the accident.
In his testimony, Harry Bates, the manager and head mechanic of Carmel Bowl, testified thatbefore the plaintiff's accident, Carmel Bowl did not regularly inspect the subject trapdoor, that henever examined any of the supports under that trapdoor, and that he did not recall repairing oraltering that trapdoor. Given the "likelihood of injury to others, the seriousness of the injury, andthe burden of avoiding the risk" (Basso v Miller, 40 NY2d at 241), the jury properlyfound that Carmel Bowl's negligent failure to reasonably maintain the subject trapdoor was thesole proximate cause of the accident (cf. Daniel v Fleisher, 230 AD2d 763 [1996]).
Accordingly, the trial court erred in granting that branch of the plaintiffs' motion which wasto set aside the jury verdict finding Done-Right 0% at fault, since that verdict was based on a fairinterpretation of the evidence (see Nicastro v Park, 113 AD2d at 134).
Consequently, the jury verdict must be reinstated, the apportionment of fault made by thetrial court must be vacated, and the matter must be remitted to the Supreme Court, PutnamCounty, for a trial against Carmel Bowl on the issue of damages, the entry of an appropriatejudgment thereafter, the severance of the action against Done-Right, and the entry of a judgmentdismissing the complaint insofar as asserted against Done-Right. Skelos, J.P., Angiolillo, Balkinand Belen, JJ., concur.